Split (1)

train · 48.8k rows

text stringlengths 9 720k	embeddings listlengths 128 128
The opinion of the court was delivered by Lockett, J.: Defendant appeals his second conviction for first-degree murder and claims that the trial court abused its discretion in denying a motion for a mistrial following the State’s improper cross-examination. Roy C. McClanahan was convicted by jury in 1992 of premeditated first-degree murder in the shooting death of Michael Martin. In State v. McClanahan, 254 Kan. 104, 865 P.2d 1021 (1993), this court reversed McClanaharis conviction, holding that the trial court erred in failing to instruct the jury on the lesser included offense of second-degree murder, and we remanded the action for a new trial. We also held that evidence of McClanaharis prior abuse of his wife, who was not the victim of the crime, was improperly admitted. We addressed the prior abuse issue, despite McClanaharis failure to object to the evidence at trial, to insure that the evidence was not presented when the action was retried. McClanahan was retried and again convicted. The evidence at the second trial was essentially the same as at the first except for evidence of McClanahan’s prior abuse of his wife. Roy McClanahan and his wife Josephine separated in May 1991, and she then became involved with Michael Martin. Martin stayed overnight with Josephine on May 25-26,-1991. Shortly after 5 a.m., Josephine heard glass breaking and left the bedroom to investigate. She observed McClanahan with a shotgun. McClanahan entered Josephine’s bedroom. Josephine heard a gunshot a couple of minutes later. As McClanahan departed the residence, he hit Josephine in the face with a shotgun. Michael Martin, who was in the bedroom, died of a single gunshot wound to the chest. The shotgun blast penetrated Martin’s arm, which appeared to have been raised in a defensive position, before striking his chest. Roy McClanahan turned himself in to the police after the shooting. McClanahan testified at trial that he went to the house where Josephine was staying in the early morning hours to find out what was going on between Josephine and Martin. McClanahan insisted he did not intend to shoot anyone. He took a shotgun for protection because two-people had warned him to leave Josephine and Martin alone. Upon arriving at the house he broke a window, reached in, and unlocked the back door. After entering the house, he saw Josephine coming out of a second floor room and putting on a housecoat over her naked body. McClanahan stated.that he “flipped” and went into a “jealous rage.” Pushing Josephine out of the way, he entered the dark bedroom. McClanahan released the safety on the shotgun ánd said, “Who’s in here? Do to me what you just done to my wife.” McClanahan stated that there was no reply but a few seconds later somebody pulled on the shotgun. According to McClanahan, as he pulled back, the shotgun went off. McClanahan insisted that the shooting was unintentional. The one difference in the evidence at the two trials concerned testimony that before they separated, McClanahan had beaten Josephine. In the earlier trial, testimony revealed that Josephine had separated from McClanahan because he abused her. In Mc-Clanahan’s first appeal, this court found that evidence of prior abuse was not relevant and was inadmissible because Josephine was not the person McClanahan had shot and killed. At the second trial, Josephine testified that there was a reason she separated from McClanahan but, at the direction of-the prosecutor, she did not specify that reason. McClanaharis daughter-in-law also testified that Josephine left McClanahan for án unspecified reason. During direct examination by his defense counsel, Mc-Clanahan testified that he was separated from Josephine, but he did not state the.reason for their separation. He testified that he believed Josephine was with Martin at the time he went to the house where Josephine was staying. McClanahan also denied that he struck Josephine in the face with the shotgun. During the State’s cross-examination of McClanahan, the following occurred: “Q. [By Mr. Fletcher, assistant comity attorney]' Isn’t it true, Mr. McClanahan, that the reason Josephine left you is because you beat her? “MR. MEISHEHEIMER [counsel for the defendant]: Your Honor, I object to that question. It is entirely inappropriate. “THE COURT: Sustained. “Q. (By Mr. Fletcher) Well, Mr. McClanahán, is it your testimony that you thought Josephine McClanahan was seeing Michael Martin?- ' “A. Yes, I thought she was. “Q. And is it your testimony — it was your opinion that that’s why she left you because— “MR. MEISENHEIMER: He has not testified to that, Your Honor. That assumes a fact not in evidence. “MR. FLETCHER: I can ask the question. “MR. MEISENHEIMER: If he asks the question, is that what you think, then that’s fine. “THE COURT: I’m going to sustain the objection to the form of the question. “Q. (By Mr. Fletcher) Mr. McClanahan, aren’t you attempting to insinuate to the jury that the reason Josephine McClanahan left you is because she was seeing Michael Martin? “A. Yes. “Q, Isn’t it true that the reason she left you was not because she was seeing Michael Martin? , “A. Yes. “Q. And didn’t you testify at a previous heáring the reason why she left you— ' “MR. MEISENHEIMER: Your Honor, I object to this line .of questioning. It is entirely inappropriate.” The jury was excused and the following proceedings were had in their absence, defendant being present: “THE COURT: . . . What I was indicating to you when I called you up to the bench is that, as you know, the recent Supreme Cpurt ruling in this case came down and indicated per the Supreme Court ruling'that we cannot — that it is error to introduce any evidence of any prior abuse of Josephine McClanahan prior to her leaving Roy McClanahan.I understand, Mr. Fletcher, that you’re indicating that you’re trying to contradict the impression that may have been given. You’re indicating and your position is, if I’m understanding correctly, that there may have been an occasion at least in testimony of a prior hearing in this case, that Mr. McClanahan indicated that he knew that Josephine had left him because he’d beaten her and that’s my understanding. You’re saying he testified that way. “MR. FLETCHER: Yes, Your Honor, Volume 2 of the transcript, Page 563, Line 6 through 8: ‘Question: Isn’t it true that the reason Josephine left you was because you beat her? Answer: Yeah, yes.’ ’ ' ’ ' ' “THE COURT: Okay. Now, is that the [first] trial transcript? “MR. FLETCHER: Yes, Your Honor, cross examination. “THE COURT: Okay. I understand that and the problem that we have in this case in light of the Supreme Court ruling which, as you know, was emphatic in the Supreme Court opinion when it came down on that is that at this point in time, in this particular trial, Mr. McClanahan has not. testified in that regard yet so he has not yet, as you know, said something that would open — in other words, he has not said that in this particular hearing yet and that is the reason why it’s not yet rebuttal evidence in this hearing. At least to my knowledge, I have not heard him testify that way in this particular hearing so there is no prior inconsistent statement to come in yet because there’s been no statement yet in this particular hearing. Do you understand why I’m having to rule the way I am legally? “MR. FLETCHER: You can rule the way you want, but I’m going to make a record on why I think you’re wrong. “THE COURT: I wanted you to understand. “MR. FLETCHER: You make your ruling, Judge. I don’t need to understand. “THE COURT: Everyone needs to understand and we are going to clarify it for the record because I did try to explain it to counsel at the bench and counsel would not let me finish my statements, so we are going to put this on the record and my ruling and the reasons for the ruling because we really need to explain everything on the record in this case and it needs to be adequately covered on the record. Having said that, I’ll be very happy to let both counsel respond, but I wanted to make very clear why I’m having to rule the way I’m ruling. Now, Mr. Fletcher, if you’d like to respond first. “MR. FLETCHER: Yes, Your Honor, the Supreme Court ruling, the way you’re interpreting it is completely incorrect. They said the State cannot present that evidence in direct. I’m presenting it on the cross examination of Mr. Mc-Clanahan. He’s inferring to the jury, and Mr. Meisenheimer’s talked about it in cross examination of about all of the State’s witnesses about Josephine seeing Michael Martin and fooling around on him and that’s the reason why she left him is for another guy. I have the right to ask Mr. McClanahan of a prior statement under oath, isn’t the reason really why she left you is because you beat her and if you’re saying that I can’t get into that, that’s your ruling and it’s wrong and I disagree. You’re saying the defendant can get up there and say whatever he wants and I can refute it, but I can’t bring it out. That’s a direct statement from his prior testimony. “MR. MEISENHEIMER: Your Honor, the facts are and the issue in terms of seeing — was Josephine McClanahan seeing Michael Martin certainly was brought out by the State in their testimony of Detective Conlon regarding his interview of Jim Lowe [Josephine’s brother] and Teresa Lowe, by Teresa Lowe and by Jim Lowe. That issue all became — came out in terms of his threats about seeing or about harming them. That’s the State’s position that that indicates premeditation. . . . I at no point asked any question that elicited testimony from any of the State’s witnesses that stated that they were separated because of marital in fidelity. The fact that the State offered evidence in its case in chief last time that the Supreme Court found to be erroneous, that then the defendant then had to— was questioned about and based on the Court’s rulings in the prior case, properly questioned about, doesn’t all of a sudden automatically make it admissible for purposes also of this trial in terms of attacking his credibility. . . . “MR. FLETCHER: Your Honor, I disagree with the facts on a couple of things. Number one, Mr. McClanahan said he thought that Michael Martin was seeing his wife. There’s no time frame. The State’s time frame is clear. Josephine testified she didn’t begin seeing Michael Martin and dating him until after she left Mr. McClanahan. That’s the State’s evidence and the other thing is that if you’re going to allow the defendant to get up there and to infer to the jury that fooling around and we can’t present evidence of why he left her and why sbe was scared of him, because he beat her, and why she didn’t want anyone to know where she lived and I got a prior testimony of his under oath where he said yeah, the reason she left me is because I beat ber. You rule, that’s fine. “THE COURT: No, I want to clarify one thing for the record and I certainly have a right to do that. If you recall, the Supreme Court pinpointed out the difference in this case and in a case where the wife herself has been the victim of a homicide. In a case where the wife herself had been the victim of a homicide, evidence of an ongoing pattern of abuse would probably be relevant. In this case we do not have the wife as the actual victim of the homicide and that was the reason the Supreme Court came out and, if you remember, the Court, in its opinion, made that distinction indicating that whether or not Mr. McClanahan beat his wife at an earlier time would not be relevant in this particular case and that was the reason that the Supreme Court made its ruling and this court has to honor the ruhngs of the Supreme Court of Kansas and in addition to that, the Court also has to weigh the probative value and prejudicial effect. In this case whether or not Mr. McClanahan, at an earlier time, beat Mrs. McClanahan is not relevant in this case because she was not the actual victim and that was the basis of the Supreme Court ruling and that is why this Court has no choice but to rule that way in this case and I am going to follow the Supreme Court ruling. “MR. FLETCHER: Let’s move on, Your Honor. “THE COURT: Anything else we need to take up prior to the jury coming in? “MR. FLETCHER: Let’s go. “THE COURT: Okay.” Following McClanahan’s testimony, the defense moved for a mistrial. Although the State asked for a cautionary instruction, McClanahan requested that no instruction be given because it would highlight the error. No cautionary instruction was given at that time. The court denied the motion for a mistrial. In this appeal, the defendant claims that the trial court abused its discretion in denying his motion for a mistrial and fading to order a new trial due to die prosecutor’s flagrant disregard of this court’s decision in the firstiappéal by attériipting to cross-examine him concerning the prior abuse and-seeking to introduce evidence this court found not to be relevant. K.S.A. 22-3423(1)(c) provides that the trial court may declare a:mistrikl at any timé térmiriation of a trial is necessary because prejudicial conduct inside or outside the courtroom makes it impossible to proceed with the trial without injustice to either the State or the defendant. The party seeking a mistrial has the burden óf showing that the party has been substantially pfejudiced'by the-error.'The granting or'denial óf a motion for mistrial is a matter which lies'within thé sound discretion of the trial court, and a trial court’s decision- concerning a mistrial will not be reversed by an appellate court absent an abuse of that discretion. State v. Massey, 242 Kan. 252, Syl. ¶ 4, 747 P.2d 802 (1987). In the defendant’s first áppeal, this-court héld that evidence of the prior abuse of a person who was not the homicide victim was improperly admitted. We-noted that the trial court admitted this evidence (1) as part of the res gestae of the offense,'(2) because the defendant’s counsel raised the subject of Josephine’s adultery during voir dire, and (-3) as evidence of a discordant marital relationship. This court rejected each of these reasons. We concluded under the facts that the prior abuse of the defendant’s wife-was not part of the res gestae because it was not connected to the'killing of Martin. Also, the prior abuse was not connected to Josephine’s subsequent act of adultéiy. Finally, the prior abuse against Josephine was not marital discord evidence because the prior abuse of the wife was not relevant to the defendant’s motive or intent iii shooting Martin, McClanahan, 254 Kan. at 116-18. During the second-trial, the prosecutor omitted reference to the defendant’s prior abuse of-Josephine until his cross-examination of the defendant. Then,' the prosecutor specifically and bluntly asked the defendant if it was true that- Josephine left him because he was beating her. The trial' court sustained'thé défendant’s objection before the defendant answéred-the prosecutor’s question. -The prosecutor then proceeded-to elicit from thé defendant1 that he wanted the jury to believe Josephine left him because she was seeing Martin. After the defendant acknowledged that Josephine did not leave him because she was seeing Martin, the prosecutor again attempted to elicit from the defendant the reason why Josephine left him. The trial court refused to permit this inquiry. The prosecutor argued to the judge that this court’s decision in the first appeal was only that the State could not present evidence of the prior abuse by direct testimony. The prosecutor explained to the judge that he was following this court’s ruling by introducing the evidence on cross-examination rather than direct. The prosecutor also suggested that because the defendant had implied to the jury that Josephine left him to be with Martin, the prosecutor could question the defendant about his prior statement in the first trial in which the defendant admitted that Josephine left him because he was beating her. The trial court rejected each of these arguments and found that the defendant had not opened the door and that the evidence of prior abuse was not relevant as determined by the Kansas Supreme Court in the first appeal. In this appeal, the State contends that the defendant had opened the door for the State to present testimony as to the reason Josephine had left him. As support for this claim, the State points to the testimony of various persons that Josephine was involved in a relationship with Martin. The State questions why the defendant could insinuate to the jury that his wife left him for another man when the truth is she left him because he had previously beaten her. The State also argues that this court’s holding in the first appeal that the abuse of the wife was inadmissible was dicta. Various persons did testify during the State’s case in chief that Josephine was involved in a relationship with Martin. There was testimony presented by the prosecutor and clarified by the defense’s cross-examination that Josephine’s brother observed her with Martin at a time before Josephine and the defendant were separated. The defendant then elicited from Josephine’s brother on cross-examination that seeing Josephine and Martin together raised some suspicions in his mind about what was going on between Josephine and Martin. There was also testimony introduced by the prosecutor that the defendant told Josephine’s brother and his wife that he believed Josephine was “stepping out” on him and that he would kill both Josephine and the person she was with. However, none of these witnesses testified or implied that the relationship, with Martin was the reason Josephine left the defendant. Josephine testified that she became involved with Martin after she separated from the defendant. We agree that a party can open the door for otherwise inadmissible evidence. See State v. Johnson, 258 Kan. 475, 481, 905 P.2d 94 (1995). However, the State’s reasoning that the door had been opened and that it was permitted to refute the defendant’s implication that Josephine left the defendant because she was seeing Martin is flawed. At the time the State asked the defendant if Josephine left him because he was beating her, there had been no testimony of what caused the separation or any indication that Josephine left him because she was seeing Martin. Therefore, no door had been opened by the defense for the prosecutor to introduce the inadmissible testimony at that point. After the defendant’s objection to the prosecutor’s question whether Josephine left the defendant because he was beating her was sustained, in answer to the prosecutor’s questions the defendant admitted that he wanted the jury to infer that Josephine left him because she was seeing Martin. This testimony, however, was elicited by the prosecutor during his cross-examination of the defendant. While a party can open the door to otherwise inadmissible evidence, that rule applies only when one party opens the door for another party to present such evidence. A party cannot open the door for itself to present the inadmissible evidence. If a door was opened here, it was opened by the prosecutor. The trial court properly sustained the defendant’s objections to the prosecutor’s questions concerning his prior physical abuse of Josephine. The evidence was inadmissible under the opened door theory. In the defendant’s first appeal, when determining that testimony of the defendant’s prior abuse of Josephine was inadmissible, we made no distinction as to whether the evidence could be introduced by the State during direct or cross-examination. Although, as the State points out, this court actually reversed the defendant’s conviction because of the trial court’s failure to give an instruction on a lesser included offense, this court’s statement in the first ap peal that the evidence of prior abuse was inadmissible was not dicta; it was to insure the same error would not be perpetuated in the second trial. Unless the evidence in the defendant’s second trial was substantially different than that in the first trial, evidence of the defendant’s prior abuse of Josephine was not relevant or admissible in the second trial. See State v. Humphrey, 258 Kan. 351, Syl. ¶ 4, 905 P.2d 664, modified 258 Kan. 372, 905 P.2d 664 (1995). Here, the record reveals that the evidence in the second trial was not substantially different than that in the first trial; therefore, the evidence was not relevant and was also inadmissible in the second trial. The trial court found that the defendant had not been substantially prejudiced by the State’s questioning; therefore, a mistrial was not warranted. The defendant argues on appeal that the prosecutor’s flagrant disregard for this court’s decision in his first appeal required a mistrial here. The defendant points out that the State attempted to lay a foundation to admit evidence of marital discord by asking leading questions about whether Josephine left the defendant because he had beaten her and whether the defendant-had previously testified about the reason Josephine had left him. The defendant concludes that “[i]t is unrealistic to believe that the jury did not put two and two together and understand that Roy had admitted that he had beat Josephine.” The defendant reasons that the State’s improper questions caused the jury to believe that he had a violent disposition and was predisposed to premeditated murder. The defendant asserts that a cautionary instruction would have highlighted the inadmissible evidence of abuse and would have been disregarded by the jury. The defendant argues that the prosecutor intentionally prejudiced his right to a fair trial; therefore, the trial court abused its discretion in failing to declare a mistrial. The defendant reasons the prosecutor’s intentional violation of our order in the first appeal is analogous to a prosecutor’s violation of a district court’s order in limine. In State v. Massey, 242 Kan. at 265, this court recognized the reason for an order in limine is that evidence will be inadmissible at trial and the mere offer of or statements made during trial concerning the inadmissible evidence will tend to prejudice the juiy. In evaluating alleged violations of an order in limine, it must first be found that a violation occurred and then determined whether the facts elicited in violation of the order substantially prejudiced the defendant. State v. Warden, 257 Kan. 94,125, 891 P.2d 1074 (1995); State v. Bowen, 254 Kan. 618, Syl. ¶ 2, 867 P.2d 1024 (1994). In Massey, 242 Kan. 252, the defendant sought a mistrial after a State’s witness violated an order in limine precluding testimony that a hole in the bedspread which covered the murder victim' was caused by a bullet. The cause of the hole in the bedspread was significant because there were no powder bums surrounding the gunshot wound on the victim, which meant either that the gun was fired at least 2 feet away from the victim, consistent with Massey’s testimony that the victim was accidentally shot when Massey experienced a seizure, or that a barrier was placed between the gun and the victim. No tests had been conducted to determine whether a bullet created the hole in the bedspread. The bedspread was admitted on the understanding that the jury would draw its own conclusions concerning the hole. The State had warned its witnesses not to give an opinion on what caused the hole. However, upon the State’s questioning of a witness as to whether there were any markings on the bedspread and if it was tom or tattered, the witness testified that there “appeared to be a bullet hole through the bedspread.” After Massey’s objection, the State elicited from the witness that his testimony about the hole in the bedspread was based on the witness’ speculation and that no tests had been conducted on the bedspread. 242 Kan. at 263. The trial court denied Massey’s motion for a mistrial because the State had been careful to point out to the jury that the witness was only stating an opinion. Then, in closing argument, the State argued to the jury that the lack of powder bums on the victim could have been caused by a barrier between her body and the gun and that “ we can’t prove what made that hole in the blanket, all we can do is look at the possibilities.’ ” 242 Kan. at 264. This court concluded that the violation of the order in limine prejudiced Massey. Because no reasonable person would agree with the trial court’s decision that the facts elicited by the State after the violation made it possible to proceed without substantial injustice to Massey, this court found that the trial court abused its discretion in failing to grant a mistrial. 242 Kan. at 265. In Bowen, 254 Kan. 618, an order in limine precluded testimony about gang membership. The State elicited testimony from a law enforcement officer that he was assigned to a gang task force and to a unit that focused on drug and gang activity. The trial court denied Bowen’s request to strike the testimony because to do so would have brought out the testimony even more. Bowen argued that he had been subject to substantial injustice because of the failure to strike the testimony. The trial court had found that there was no violation of the order in limine because the officer’s testimony did not link Bowen to a gang. This court found that even if there had been violation of the order in limine, the defendant had not suffered substantial prejudice requiring a mistrial. 254 Kan. at 624. In Warden, 251 Kan. 94, an order in limine precluded testimony about Warden’s suicide attempt. However, a witness volunteered, in violation of the order, that Warden told her he tried to kill himself. Warden objected, but his motion for a mistrial was denied. The trial court determined that there was a violation of the order in limine but the violation was not intentional and the testimony was subject to more than one inference. The court instructed the jury to disregard the last several answers of the witness and found that Warden was not substantially prejudiced by the testimony. In affirming the trial court, this court distinguished Massey because the Warden jury was instructed to disregard the inadmissible statements of the witness in a way that did not highlight the inadmissible testimony and because there was no other reference during trial to-Warden’s suicide attempt. Moreover, the jury would not necessarily infer from the suicide attempt that Warden was guilty of the charges; the jury also could infer that Warden attempted suicide due to the mere fact of being charged with the offense. We concluded that the testimony in violation of the order in limine was not so prejudicial that no reasonable person would fail to grant a mistrial. 257 Kan. at 127. Here, the testimony concerning the defendant’s prior abuse of Josephine was inadmissible. However, the determination of whether the mere mention of the prior abuse by the prosecutor substantially prejudiced the defendant’s right to a fair trial is a more difficult question. Because the defendant’s conviction in the first trial was reversed for a different reason, this court’s decision in the first appeal did not discuss prejudice resulting from admission of the evidence. In this appeal, we are required to determine if the defendant’s right to a fair trial was substantially prejudiced by the State’s questions to such an extent that the trial judge was required to grant a mistrial. Massey is distinguishable because the court here sustained the defendant’s objection before an answer to the question was given, and there was no other reference to the defendant abusing Josephine. No evidence of the defendant’s abuse of Josephine or the fact that Josephine had left the defendant because he had beaten her was admitted. Although evidence of prior abuse was referred to by the prosecutor and the jury could have inferred from the State’s questions that Josephine had left the defendant because he had abused her, the defendant has not shown that he was substantially prejudiced by the questions such that no reasonable person would agree with the trial court’s determination that a mistrial was not warranted. The defendant had the opportunity for a cautionary instruction to be given to the jury, but he declined the instruction. The trial court did not abuse its discretion in denying the defendant’s motion for a mistrial. This determination does not, however, minimize the State’s flagrant disregard of this court’s decision in the defendant’s first appeal. To show the prosecutor’s persistent disregard for the trial judge’s ruling, we have included a portion of the trial transcript. “MR. MEISENHEIMER: Your Honor, based on the questions that were asked by the assistant county attorney in his cross examination of the defendant, I believe that it’s necessary and appropriate at this point in time to ask for a mistrial. It’s the defendant’s position that those questions are in blatant violation of the Supreme Court decision that was entered in this case based on the first trial. Once those questions are asked, the answer becomes obvious and that was the — I don’t know what the intent was, but that is the result and as a result, the defendant is not able to get a fair trial and the Supreme Court was pretty clear that that wasn’t evidence that should be considered and we would ask for a mistrial. “THE COURT: Mr. Fletcher. “MR. FLETCHER: Yes, Your Honor. Number one, we’ve stated all of the reasons why the question was appropriate. We disagree with your ruling that we couldn’t get into it. Secondly, I disagree with how you interpret the Supreme Court decision, but you’ve already ruled and if you’re going to grant a mistrial, it’s totally discretionary with you. The question was objected to, you didn’t allow an answer if I recall, but you’d have to check with the court reporter and, secondly, if you think that there might be some error, all you have to do is give them a cautionary instruction and that’ll be enough. There’s no reason for a mistrial and I still can’t believe you ruled the way you did, but that’s your ruling and we see no reason for a mistrial. “THE COURT: Mr. Meisenheimer, would you like to respond? Mr. Fletcher, I will say one thing, and I’d like to say this on the record. You certainly have a right to disagree with this Court’s ruling. In this particular case you’re not only disagreeing with my ruling, but you’re disagreeing with the Supreme Court’s ruling which I am obligated to follow. I want to admonish you that you do not have the right to speak in derogatory terms about the court, and I’m not talking about me personally. I’m talking about the court in general. If you don’t agree with the Court’s ruling, that’s fine. You certainly have a right to disagree and we’ll note that for the record, but we are not going to get into an argument. There’s going to be integrity and dignity in this courtroom by all participants and I have no objection to your disagreeing, but I do have disagreement with any derogatory remarks and they will not be tolerated by anyone in this courtroom and that’s not for me personally. That’s from the standpoint of the court itself. It’s important that in any judicial proceeding we all maintain integrity and dignity and courtesy in this courtroom and as long as I’m on this bench, that’s what’s going to happen. Now, in this particular case, I — the question was objected to about the beating. I have explained my reasons. I don’t feel I need to go into further explanation. I’ve told you what the Supreme Court said and why they said it and I am upholding the Supreme Court of the State of Kansas and I will continue to do so as long as I am a judge on this bench. At this point in time, I do not feel, though, that the remarks were prejudicial enough to justify the granting of a mistrial.” The defendant argues that the prosecutor’s misconduct in bringing up the prior abuse was an intentional violation of our prior order and requires a new trial. As authority the defendant cites State v. Lewis, 238 Kan. 94, 98, 708 P.2d 196 (1985), where this court listed three factors which should be considered in determining whether there should be a new trial due to prosecutorial misconduct: “First, is the misconduct so gross and flagrant as to deny the accused a fair trial (i.e., are the objectionable statements likely to affect the jurors to the defendant’s prejudice)? Second, do the remarks show ill will on the prosecutor’s part? Third, is the evidence against the defendant of such a direct and overwhelming'nature that it can be said that the prejudicial remarks of the prosecutor were likely to have little weight in the minds of the jurors?” In Lewis, the prosecutor failed to inform the court and the defense that a report which would be entered into evidence had been corrected. The corrections to the report defeated the theory of defense presented in opening statements. This court held that neither an admonition nor instructions by the trial court could cure the resulting prejudice. 238 Kan. at 99. Prosecutorial misconduct during closing argument has been considered by this court numerous times. In the recent case of State v. Spresser, 257 Kan. 664, 896 P.2d 1005 (1995), the prosecutor had mentioned the impact on other victims’ lives if the defendant was released. The trial court sustained the defendant’s objection and instructed the jury to disregard the prosecutor’s comment. Although agreeing that the prosecutor’s comment was improper, this court found that reversal was not required. We recognized that although some remarks may be so prejudicial as to be incurable, this court had never found a remark to be incurable where the jury was instructed to disregard the remark. We declined to declare the improper remark in Spresser to be the first incurable one. 257 Kan. at 672. Thus, we held that generally where an objection to an improper comment is sustained and the jury is instructed to disregard the comment, the comment is not incurable. Here, unlike in Spresser, the jury was not instructed to disregard the State’s question because the defense requested a cautionary instruction not be given so as not to highlight the improper question. However, the defendant’s objection to the question was sustained before the defendant answered the question. We note that the trial judge instructed the jury that it was to consider as evidence whatever is admitted in the trial as párt of the record, whether it be the testimony of witnesses or an article or document marked as an exhibit or other matter admitted, such as an admission, agreement, or stipulation. The judge further in structed the jury that at times during the trial, the judge had determined objections to the admission of certain evidence; questions relating to the admissibility of evidence were questions of law for the court and the jury was not to concern itself with the reasons for the rulings. In considering the case, the jury was told not to draw inferences from the court’s rulings and that it must consider only the evidence which was admitted. The judge also instructed that statements, arguments, and remarks of counsel were intended to help the jury in understanding the evidence and in applying the law, but they were not evidence. The jury was instructed to disregard any attorney’s statement that had no basis in the evidence. The jury is presumed to have followed the court’s instructions to decide the case on the evidence and not consider the comments of counsel. See State v. Tyler, 251 Kan. 616, Syl. ¶ 13, 840 P.2d 413 (1992). This court explicitly stated in the first appeal that the evidence of abuse to someone other than the victim was inadmissible, yet the State attempted to present that evidence in the second trial without seeking a ruling from the trial court on its admissibility. Clearly, prosecutorial misconduct occurred here. Moreover, the State persisted in arguing to the trial judge that the evidence was admissible. This court does not condone such misconduct. We note that if the prosecutor’s misconduct was intentional and substantially prejudiced the defendant’s right to a fair trial, double jeopardy would prohibit a new trial. The Double Jeopardy Clause of the United States Constitution protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. The underlying protection contained in the Double Jeopardy Clause of the United States Constitution is contained in § 10 of the Kansas Constitution Bill of Rights. State v. Cady, 254 Kan. 393, Syl. ¶¶ 1, 2, 867 P.2d 270 (1994). In order to implement and define the constitutional protection against double jeopardy, the Kansas Legislature enacted two statutes: (1) K.S.A. 21-3107, concerning multiple prosecutions for the same act, and (2) K.S.A. 21-3108, concerning the effect of former prosecution. K.S.A. 21-3107 defines the right of the prosecution to charge more than one offense based on the same act and to convict of an included offense not specifically charged. It formulates the limitations upon unfair multiplicity of convictions and prosecutions. K.S.A. 21-3108 attempts to cover the complex problems of former jeopardy. Cady, 254 Kan. 393, Syl. ¶ 3. K.S.A. 21-3108(l)(c) prohibits retrial if the prior trial was terminated without the consent of the defendant, except in specific circumstances which do not exist here. In Cady, 254 Kan. 393, Syl. ¶ 4, this court stated that the constitutional interest protected by Oregon v. Kennedy, 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083 (1982), is that a defendant should be allowed to freely choose whether to request a mistrial and forego the right to have the matter decided by the first trier of fact. Where the prosecutor seeks to force the defendant into a choice, the choice is not freely made and the prosecutor has subverted the defendant’s rights protected by the Double Jeopardy Clause of the Constitution. Here, if the defendant was forced into requesting a mistrial by the prosecutor’s intentional misconduct, retrial would be barred by K.S.A. 21-3108(l)(c) and by the Double Jeopardy Clauses of the Kansas and United States Constitutions. In evaluating the misconduct that occurred here, the question remains whether the prosecutor’s intentional attempt to introduce inadmissible evidence substantially prejudiced the defendant’s right to a fair trial and required the defendant to ask for a mistrial. Because the right to a fair trial is at issue, we apply the federal constitutional error standard. An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. State v. Johnson-Howell, 255 Kan. 928, 944-45, 881 P.2d 1288 (1994). We now apply the three factors set out in Lewis, 238 Kan. at 98, and the constitutional harmless error standard to determine if the prosecutorial misconduct here was so gross and flagrant that it requires the granting of a new trial. The prosecutor’s actions show an ill will toward the defendant’s right to a fair trial. The comments implying that the defendant was a violent person could have somewhat affected the jurors to the defendant’s prejudice. However, after reviewing the evidence, we are able to conclude beyond a reasonable doubt that the evidence against defendant was of such a direct and overwhelming nature it can be said that the prejudice caused by the prosecutor was likely to have had little weight in the jurors’ minds and did not change the result of the trial. Affirmed.	[ 16, -24, -83, -67, 41, -32, 42, -68, 114, -46, -28, 115, 105, -33, 5, 107, 90, 125, 69, 105, -12, -73, 7, 65, -6, -5, -79, -60, -77, -50, 126, 125, 8, 96, 74, 85, 70, 74, -27, 82, -114, -108, -80, -10, -62, 18, 52, 45, -58, 14, 49, -98, -29, 43, 21, -53, 73, 44, 74, 125, 80, 57, 40, -115, -33, 32, -77, 54, -66, 5, -40, 58, -104, 53, 16, -24, 114, -110, -126, -12, 77, -119, 44, 103, 99, 33, -35, -19, -23, -103, 111, 119, -35, -89, -101, 104, 65, 101, -74, -1, 98, 53, 14, 112, -20, 95, 29, -20, 10, -57, -112, -111, 73, 60, 10, 82, -5, -91, 36, 113, -51, -95, 76, 34, 91, -101, -102, -107 ]
Per Curiam: This is ah attorney discipline proceeding involving respondent Kenneth F. Crockett, an attorney licensed to practice law in Kansas, whose last registration address-is in Topeka. The complainants,'Mr.- and Mrs:. Gerald Ashton, had entered into a contract for construction of-a residence with Dean Miller Construction Company: There -were cost , and time overruns'and allegations of poor and unfinished work. The Ashtons met with respondent on October 30,1989, to discuss the construction problems. After additional meetings and telephone calls, the Ashtons retained respondent and paid a $500 retainer on'December 6, 1989. Respondent wrote a demand letter on December 18, 1989: On January 3,1990, he toured the home with his clients and on January 9, 1990, he toured the home again with his clients and Miller and Miller’s attorney, Greg Lee: In an exchange of letters, the parties attempted to negotiate final repairs and final payments, but this attempt failed. On February 13,1990, the construction company sued the Ash-tons to foreclose its contractor’s lien and recover $25,500 -still unpaid on the contract. The mortgagor and additional subcontractors were named as additional defendants to require them to assert any claims in the matter. Respondent- filed a timely answer and comy terclaim asserting damages to the Ashtons of $35,000.. Respondent promptly answered plaintiff’s request for discovery and statement of monetary damages. In a letter dated April 4, 1990, Mr. Lee suggested arbitration, which was later declined by the Ashtons. On April 16, 1990, a pretrial conference was held before the district judge. At that time a trial date of May 8, 1990, was set if no arbitration was conducted. The parties appeared for trial on May 8, 1990. At that time, however, the judge took counsel into chambers and announced he had decided to attempt an alternative to trial. With the consent of counsel, a contractor was appointed to be the court’s expert witness. The contractor was to inspect the home and note needed repairs, and Miller would have an opportunity to correct them. Unfortunately, none of this proceeding was recorded by the court or journalized by counsel. The procedure was attempted. Miller performed some of the repairs suggested by the contractor but not others. The Ashtons eventually refused to permit Miller access to their home to make repairs and elected to return to court. In a December 10, 1990, letter decision, the district judge determined that all issues had been decided and no counterclaim was preserved when the contractor alternative was agreed to by the parties in May 1990. Respondent, without any documentation, disputed this ruling. The court’s decision was journalized by plaintiff’s counsel and filed on January 11, 1991. Timely notice of appeal was filed by respondent on January 23, 1991, and the appeal was docketed on that date. On February 23, 1991, the Court of Appeals issued a show cause order pointing out that two additional defendants originally sued were not addressed in the decision letter or journal entry. Plaintiff’s counsel prepared a new journal entry of dismissal with prejudice as to those parties. That journal entry was filed with the district court and the Court of Appeals on March 15, 1991. On March 21, 1991, the Court of Appeals issued a second show cause order, stating the original appeal was prematurely filed and no timely notice of appeal from the March 15, 1991, journal entry had yet been filed. Respondent did not act on this notice. Rather, on April 3, 1991 (mailed March 19, 1991), he responded out of time to the first show cause order (which had been mooted by the March 15,1991, journal entry). On April 16,1991, respondent filed a response to the second show cause order. The certificate of mail ing was dated April T2, 1991, but was not received by the Clerk of the Appellate Courts until April 16, 1991. ’ On April 25, 199Í, the Court of Appeals issued a third show cause order, pointing out that the April 16, 1991, response was filed outside the 30-dáy appeal time from the March 15, 1991, journal entry. No response was filed by respondent. On May 20, 1991, the appeal was dismissed for failure to respond to the third show cause order and for untimely filing- of the appeal. The $25,000 construction fund held by the district court was ordered paid to plaintiff Miller Construction. Respondent never notified his clients of the May 20, 1991, dismissal or that the $25,000 construction fund had been paid to the plaintiff. Rather, he ignored their repeated contacts for the next' 3 years and put them off with vague references to. canceled court dates and “the due process of law.” .The Ashtons became more persistent in wanting an answer. In March 1994 respondent prepared his own trust account check for $11,844.19 rather than'explaining the dismissal and the. reasons behind it. The Ashtons stated that the.respondent told them the check represented an out-of-court settlement. The check was mailed to .the Ashtons in April 1994, accompanied by a document titled “Disbursement” purporting to be a settlement of the Ash-tons’ counterclaims. Respondent canceled meetings that had been set with the Ashtons, and he failed to return phone calls. In the fall of 1994 the Ashtons checked with the Clerk of the Appellate Courts to determine .what had occurred and learned their appeal had been dismissed in .1991. They then filed this disciplinary complaint against respondent. The following is a letter dated October 4, 1994, from Gerald Ashton to Bruce E. Miller, Disciplinary Administrator: “On December 6, 1989 we paid a retainer to Mr. Kénneth Crockett of $500.00 to represent us in a suit against Dean Miller. We were having a new home built and were having trouble with the builder. , “On May 8,1990 we went to court on this case. We lost the case and Mr. Crockett filled [sic] an appeal on our behalf.- In January, of. 1991 Mr. Crockett .filed the appeal. The appeal number is 91-66112-A. “On February 7, 1991 we paid into the court the sum of $28,122.67 under case #90-CV-308. We called Mr. Crockett numerous times from January 1991 until after receiving a check from Mr. Crockett in April of 1994. Each time Mr. Crockett told us ‘It was the due process of law’ that was taking so long on the appeal. “We were told by Mr. Crockett that a court date of September 29, 1993 at 1:30 had been set for our appeal. Mr. Crockett later called and said the court had cancelled the date and he would let us know when it would be rescheduled. “On October 6, 1993 we contacted Mr. Crockett. On October 9 Mr. Crockett brought Mr. R. L. Olden to check our house for nail pops and to repaint the interior. Mr. Olden estimated this part of the corrections at $2,875.00. We then started calling Mr. Crockett more often to find out what was taking so long. When we were able to reach him he would again say it was the ‘due process of the law.’ ‘We called Mr. Crockett on November 9, 1993. On November 30, 1993 Mr. Crockett meet [sic] with us at our home. He told us he was working on getting us a new court date. After not hearing from Mr. Crockett over the holiday we called him on January 20,1994. Mr. Crockett never returned this call so we called him again on January 26, 1994. Mr. Crockett then returned this call on January 31, 1994 saying he had been out of town and was still waiting on a court date. “On April 27, 1994 and again April 29, 1994 we called Mr. Crockett and never received a return call. On May 19, 1994 Mr. Crockett left a message on our answering machine that he was going to Kansas City but would meet us at his office at 5:30. We went to his office but he never showed up. ‘We have recently learned that our appeal case had been thrown out of court in 1991 because of Mr. Crockett’s failure to file some papers in the proper time frame. “Not only has my builder got away with his sloppy work and screwing the public, now I find out our Attorney has lied to us. We have lost five years of enjoyment on our house as we have been waiting until after things were settled before making some of the corrections to our home. I feel we should be compensated for our lose [sic] of time and happiness.” Respondent was ordered to respond to the complaint within 7 days of an October 13, 1994, letter from the disciplinary administrator. On October 23, 1994, respondent requested an extension until the week of November 7, 1994. The following is part of a letter dated November 9, 1994, from Kenneth F. Crockett to Robert Baer, a member of the Topeka Bar Association Ethics and Grievance Committee appointed to investigate the complaint: “[T]he Court dismissed the Appeal for not being timely filed, even though the appellate rules allow for the court to consider an appeal to be timely, though premature, although I still contend that was not the issue in this case. “That is a chronology of the case. After a determination was made with the agreement of the Ashtons as to the cost of repairing what they contended to be the remaining deficiencies (kitchen floor, dry-wall, paint, etc.), I personally paid Mr. & Mrs. Ashton what those items totalled. Although I remain of the opinion that the Court of Appeals wrongly dismissed the appeal, I accept the responsibility for the appeal being dismissed. “I believed the sum of money I paid Mr. & Mrs. Ashton to be the amount which would make them whole. I did not indicate to them that the case ‘had been settled’; when I informed them the money was being sent, I told them that I was sending them the money for the floor, dry-wall, etc., and if they had any questions to let me know. I do not show that I had any response other than the complaint in question. If they dispute that, then I respectfully suggest we can either negotiate any added amount, and if not, then they have their remedy to file suit and I will voluntarily enter my appearance and submit the issue to a court. “If there is additional information you desire, please advise.” This response was received by the investigator on December 13, 1994. The investigator followed up with his own letter on December 16, 1994, with additional questions when his telephone messages were not returned. Respondent did not respond to the December 16,1994, letter or the telephone calls from the investigator. Prior to the hearing before the panel, respondent had moved for a continuance on the grounds that he had had insufficient time to obtain counsel and did not feel confident to represent himself before the hearing. After the panel decided that the hearing would proceed, respondent announced that he was going to absent himself from the hearing, and he exited the hearing room. The hearing panel proceeded and found by clear and convincing evidence that respondent violated the following rules: MRPC 1.1 (1995 Kan. Ct. R. Annot. 251) (competency), 1.3 (1995 Kan. Ct. R. Annot. 257) (diligence), 1.4 (1995 Kan. Ct. R. Annot. 263) (failing to reasonably inform client), and 8.4(c) and (d) (1995 Kan. Ct. R. Annot. 340) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; engaging in conduct prejudicial to the administration of justice), and Rule 207 (1995 Kan. Ct. R. Annot. 202) (failing to properly respond to the disciplinary administrator or investigating attorney). The panel did not find that violations of MRPC 1.15 (1995 Kan. Ct. R. Annot. 294) (safekeeping property), 1.16 (1995 Kan. Ct. R. Annot. 300) (declining or terminating representation), and 4.1 (1995 Kan. Ct. R. Annot. 323) (truthfulness in statements to others) had been proven by clear and convincing evidence. The hearing panel noted as aggravating circumstances that respondent received an informal admonition a number of years ago for apparently refusing to follow court orders; that in handling this matter respondent had a dishonest or selfish motive since he attempted to conceal the truth from the complainants by writing them a check for over $11,000 and attaching it to a document that appeared to be a settlement document; that there were multiple offenses in connection with this complaint; that there was a bad faith obstruction of a disciplinaiy proceeding up to the time respondent made a motion for a continuance of the disciplinary proceedings, showing that respondent did not take the disciplinary process seriously; and that the complainants were damaged by respondent’s actions. The panel also noted that it appeared respondent was attempting to make restitution when he wrote a check out of his trust fund. The panel was not presented with any mitigating circumstances because respondent left the hearing. The hearing panel recommended that respondent be suspended from the practice of law for a period of 1 year. The panel further recommended that the respondent pay the complainants the sum of $4,460 in restitution and pay the costs of the disciplinary proceeding. Respondent did not file any exceptions to the panel’s report. The matter was set for hearing on the Januaiy 1996 docket of this court. Respondent appeared pro se at the hearing before this court. Even though the respondent had left the hearing before evidence was presented, he asserted that after receiving the hearing panel’s report, he had mailed to this court exceptions to the panel’s report. Respondent’s exceptions to the panel’s report were not received by the Clerk. Respondent claimed the mail service had failed to deliver the exceptions. Respondent further stated he had informed his former clients of the dismissal of the appeal and they had agreed to accept the $11,000 as full satisfaction of any claim they may have had against him. Respondent also indicated that his former clients had perjured themselves when testifying before the panel. Respondent asserted that he should not be sanctioned. In re Christian, 238 Kan. 451, 709 P.2d 987 (1985), is a similar type of original proceeding in discipline. There, on or about September 3,1982, Hans Burgdorf retained Christian and the law firm of which he was a member to represent him in connection with a personal injury claim against the owners of Paradise Lake, a recreational lake in Sedgwick County. Hartford Insurance Company was the liability insurance carrier for Paradise Lake and was also a client of Christian’s law firm. Christian failed to secure a settlement of the client’s claim and failed to file suit prior to the running of the statute of limitations. Christian did not advise his client that the claim was barred by the statute of limitations, nor did he advise his law partners. Christian advised the client that he had an offer of $1,500 from the insurance company, that the amount was all the company would pay, and that the client should accept. The client agreed and accepted the $1,500, which was actually paid by Christian’s law firm and not the insurance company. Subsequently, the law firm discovered the questionable disbursement and, upon questioning, Christian admitted what had occurred. Christian and the law firm each reported what had occurred to the Disciplinary Administrator. The Kansas Board for Discipline of Attorneys held a hearing on the disciplinary complaint against Christian, and the hearing panel unanimously found that there was clear and convincing evidence Christian had neglected a legal matter entrusted to him in violation of DR 6-101(A)(3); that Christian had engaged in dishonesty, deceit, and misrepresentation in violation of DR 1-102(A)(4); that Christian’s conduct adversely reflected on his fitness to practice law in violation of DR1-102(A)(6); that his attempt to limit his liability to his client for his personal malpractice violated DR 6-102(A); and that he knowingly made false statements of law and fact in violation of DR 7-102(A)(5). The panel recommended that Christian be suspended from the practice of law for 1 year. The Christian court noted that in considering disciplinary proceedings, the Supreme Court is not bound by the recommenda tions of the Kansas Board for Discipline of Attorneys and the recommendations of the panel are advisory only, citing Supreme Court Rule 212(f) (1995 Kan. Ct. R. Annot. 215), and State v. Davitt, 234 Kan. 283, 671 P.2d 1123 (1983). A minority of the members of the Christian court agreed to accept the recommendation of the disciplinary panel, but a majority of the Christian court was of the opinion that due to the serious nature of Chris-tiaris conduct, he should be indefinitely suspended from the practice of law in Kansas. Christian was indefinitely suspended from the practice of law in Kansas, and he was assessed the costs of the action. We note that there are two factual differences between Christian and this matter. First, Christian paid the purported settlement with his firm’s money without informing the firm. Here, the respondent paid the purported settlement with his own funds. Second, Christian’s firm informed the client of what had occurred and suggested that the client seek independent advice. Here, the respondent did not inform the Ashtons what had occurred and failed to suggest that they seek independent advice from another attorney. We hold that the findings and conclusions of the hearing panel are supported by clear and convincing evidence. After a careful review of the record, a majority of this court accepts the recommendation of the disciplinary panel that respondent be suspended from the practice of law for 1 year. However, a minority of the members of the court would reject the recommendation of the disciplinary panel and would indefinitely suspend respondent from the practice of law in Kansas because of the serious nature of his actions. It Is Therefore Ordered that Kenneth F. Crockett be and he is hereby disciplined for violations of MRPC 1.1,1.3,1.4,8.4(c), 8.4(d), and Rule 207. It Is Further Ordered that Kenneth F. Crockett be suspended from the practice of law in the State of Kansas for a period of 1 year effective March 8, 1996. It Is Further Ordered that Kenneth F. Crockett shall make restitution as recommended by the hearing panel, plus interest, prior to the filing of any petition for reinstatement pursuant to Supreme Court Rule 219 (1995 Kan. Ct. R. Annot. 229). It Is Further Ordered that Kenneth F. Crockett shall comply with Supreme Court Rule 218 (1995 Kan. Ct. R. Annot. 222) and shall pay the costs of this action. It Is Further Ordered that this order be published in the official Kansas Reports.'	[ -16, -24, -67, 108, -120, -31, 58, -100, 113, -85, 119, 87, -1, -51, 12, 105, -48, 125, 84, 107, 83, -78, 119, 98, -58, -5, -79, 85, -71, 127, -12, -97, 72, 48, -62, -123, -90, -128, -47, -100, 10, 5, 26, 100, -5, 66, 48, 59, 22, 15, 17, -66, -13, 105, 21, 107, 76, 40, 127, -81, -47, -111, -102, 29, 126, 5, -95, 39, -100, 7, -40, 63, -100, -75, 0, -83, 115, -74, -106, 100, 75, -117, 12, 114, 98, 34, 73, -21, -20, -99, 38, -66, -115, -90, -109, 16, 121, 77, -66, -99, 96, 70, 39, 124, -18, 69, 29, 108, -114, -113, -42, -111, -113, 86, -119, 11, -17, 7, 36, 112, -115, -26, 79, -10, 51, -69, -114, -7 ]
Per Curiam: This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against Salvatore A. Scimeca, an attorney admitted to the practice of law in Kansas. This complaint arises out of the respondent’s representation of and withdrawal from representation of Terry Peoples. Peoples’ mother, Connie Klaus, contacted the Kansas Bar Association through its Lawyer Referral Service and was referred to the respondent. Peoples was serving a prison sentence. Mrs. Klaus believed that her son’s civil rights had been violated and that he might have been subjected to negligence and personal injury while he was incarcerated in the Finney County jail. Pursuant to the Lawyer Referral Service’s rules, Klaus paid a $15 fee to the respondent for a 30-minute conference. At this conference, the respondent said that he would investigate the cause of action to determine whether he would accept employment in the case. Contemporaneously with signing a preliminary retainer agreement, Klaus paid the respondent $1,000 as a retainer fee and $250 toward expenses. The respondent placed this $250 in his trust account. Later, Klaus paid the respondent an additional $1,000. The respondent has not filed exceptions to the hearing panel’s report. The panel made the following pertinent findings and recommendations: 1. The respondent charged $272.50 for an initial office visit, knowing that the Kansas Bar Association Lawyer Referral Service set the charge for an initial consultation at $15. 2. The respondent did not provide any accounting for the amount of time and expenses or any other billing information to his client. 3. Substantially, all of the legal work in this matter was completed by the end of June 1993, but the respondent did not notify his client that he would not accept employment until November 1993, some 4 to 5 weeks prior to the running of the statute of limitations. 4. There was no accounting provided on the $250 that was placed in the trust account for use as expenses. The following is a summary of the conclusions of law reached by the panel and its recommendations. Again, the respondent has taken no exceptions to the panel’s report. “1. MRPC 1.3 [1995 Kan. Ct. R. Annot. 257] requires a lawyer to ‘act with reasonable diligence and promptness in representing a client.’ There was clear and convincing evidence that Respondent failed to respond to his client’s request for an accounting, and the Respondent failed to act with reasonable diligence in responding to his client’s request for an itemized bill. . . . “2. The delay between July and November when the case was declined, constituted failure to act with reasonable diligence and promptness. . . . “3. MRPC 1.4 [1995 Kan. Ct. R. Annot. 263] requires that a lawyer keep his or her client reasonably informed about the status of the matter and promptly comply with reasonable requests for information. There is clear and convincing evidence that the Respondent violated this rule. He acknowledged that he did not respond to his client’s request for information and while there were contacts with his office, Exhibit F shows that these contacts were not responsive to the client’s questions. “4. MRPC 1.5 [1995 Kan. Ct. R. Annot. 268] requires that a lawyer’s fees shall be reasonable. . . . [T]he panel finds that there was clear, and convincing evidence that $257.50 of the fee for the initial consult was excessive and that there was a violation of this rule. “5. MRPC 1.15(b) [1995 Kan. Ct. R. Annot 294] requires a full accounting of funds placed in trust. . . . The Respondent violated MRPC 1.15(b) by not providing an accounting on $250.00 which had been placed in trust after repeated requests from his client. “6. MRPC 1.16(d) [1995 Kan. Ct. R. Annot. 300] requires that upon termination of representation a lawyer shall give reasonable notice to the client allowing time for employment of other counsel. The panel finds that there was clear and convincing evidence that the relationship could have been terminated as early as July, 1993 and certainly well before November, 1993 in order to give the Respondent’s client the opportunity to find new counsel and give such counsel the opportunity to adequately prepare the initial pleadings in the case.” The panel found that the respondent refused to acknowledge the wrongful nature of his conduct and stated that he had done nothing wrong. In mitigation, the panel found that the respondent had suffered a debilitating ankle injury and had to deal with a devastating head injury to his son during the time of this representation. Both of these situations were clearly distracting to the respondent and caused delay in his development of the case. The panel recommended that the respondent be penalized with published censure pursuant to Supreme Court Rule 203 (1995 Kan. Ct. R. Annot. 191) and that he further be ordered to pay his client $257.50, which was the amount of the excessive fee on the initial visit. We were informed at oral argument that this sum has been reimbursed to the client. The court, having considered the record herein and the report of the panel, and, after considering the mitigating factors, accepts and concurs in the findings, conclusions, and recommendations of the hearing panel. It Is Therefore Ordered that Salvatore A. Scimeca be, and he is hereby, disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) for his violation of the Model Rules of Professional Conduct. It Is Further Ordered that this order shall be published in the official Kansas Reports and the costs herein be assessed to the respondent.	[ -80, -24, -19, -4, 11, 98, 58, 28, 91, -29, 118, 115, -19, -50, 1, 107, -15, 41, 84, 105, 66, -74, 103, 97, -26, -13, -72, -48, -80, 95, -25, -35, 73, 48, -62, 85, 66, -54, -89, -104, 10, 1, -119, -63, 91, 0, 48, 105, 18, 7, 49, 30, -77, 44, 48, 106, 108, 44, 127, -17, 16, -31, -97, 5, 95, 23, -79, -124, 28, 6, 88, 59, -120, -67, -94, -24, 112, -74, -126, 116, 15, -87, -115, 102, 98, 32, 17, -73, -16, -115, 30, 56, -100, -122, -47, -40, 67, 45, -74, -67, 112, 20, 35, -4, -28, 12, 117, -20, 3, -50, -44, -111, -115, -11, -50, -117, -17, 3, 4, 113, -116, -6, 95, -57, 122, 27, -118, -1 ]
The opinion of the court was delivered by ' Brewer, J.: This was an action brought by the defendant in error, to recover damages for personal injuries. It appears from the testimony that while sitting in a car belonging to the defendant, the same was bumped violently against another, and plaintiff thrown forward and struck over the •eye. For this injury she brought this action, and recovered a judgment in the sum of $1,000. There is but one serious question in the case, and that arises upon the ruling of the court in respect to the testimony. The fact that the train of cars upon which plaintiff was riding was hired by one Richter, as an excursion train, constitutes no defense to the company. The fact of the inj ury is beyond dispute, and no explanation given of the cause of the collision. Hence obviously the company is liable for the injury occasioned thereby, and the only doubtful question for the jury to pass upon was the amount of damages. While the injury to Mrs. Frazier was not apparently a serious one, yet her claim was that by the blow just above the eye a nerve was injured, producing traumatic neuralgia of a permanent character. After the plaintiff had testified as to the injury and its results, five physicians were severally sworn, and testified that they had made an examination of her, and were of the opinion that she had traumatic neuralgia, which was likely to be permanent. After these witnesses had testified, Dr. S. F. Neely was sworn, and testified that he had not heard the tes timony in the case, that he had just arrived, that he had made an examination of the plaintiff, and from that examination, from the history of the casé as detailed to him by her, and from the statements of her husband, made in her presence to him, he was also of the opinion that the wound had caused neuralgia, which was now chronic and perhaps permanent. ■On cross-examination he re-stated such opinion, and that it was based upon his examination and upon the history of the ■case, as obtained from her and the statements of her husband, and that he had not heard the testimony, and therefore did not know whether such statement and history corresponded to what the plaintiff-had testified to. Defendant thereupon moved the court-to withdraw from the jury all the testimony of Dr. Neely, and his expert testimony and medical opinion, because it was not based upon the testimony or the facts proved, and because the same was incompetent, hearsay, immaterial, and irrelevant. This motion the court overruled, and the defendant excepted, and this ruling is the principal ground of error. It is insisted that the testimony of a physician, so far as it is expert testimony, must be based either upon personal examination or upon the facts as proved before the jury, or else upon an hypothetical statement. Doubtless this proposition is correct. It is true that within what is meant by the phrase “personal examination” is properly included information derived from statements by the patient of present to . ieehogs and pain., In 1 (Ireenleaf, § 102, it is stated that, “the representations by a sick person of the nature, symptoms and effects of the malady under which he' is laboring at the time are received as original evidence.” See also the case of Bacon v. Charlton, 7 Cush. 581, in which it is held that anything in the nature of assertion or statement is to be carefully excluded, and the testimony confined strictly to such complaints, exclamations and expressions or groans as usually and naturally accompany and furnish evidence of a present existing pain or malady; and generally what a patient says to the physician in describing a present bodily condition is admissible. (Insurance Co. v. Mosley, 8 Wall. 397; Rld. Co. v. Sutton, 42 Ill. 438; Earl v. Tupper, 45 Vt. 275; Towle v. Blake, 48 N. H. 92; Taylor v. Rly. Co., 48 N. H. 304; Fort v. Brown, 46 Barb. 366.) So that it would have been perfectly competent for the physician to have testified not merely to the appearance of the wound as he saw it, but also to all statements made by Mrs. Frazier as to her present bodily condition, and to have given to the jury his opinion based upon such examination and statements. But it would not have been competent for the physi- . . n , , . cían to testify to the iury as to her statements in J ° J respect to the cause of the injury, her past experience in connection with the wound, or any statements of her husband in her presence of like character. In other words, he could not give to the jury as evidence her history of the case as detailed to him outside the court room; neither was his opinion as based upon such history of the case proper matter of evidence. The distinction is very clearly stated and fully considered by the supreme court of Maine in the case of Heald v. Thing, 45 Me. 392, where a physician, who had made an examination and had also received from the patient a history of the case, was permitted to give to the jury his opinion so far as it was based upon his personal examination, but was not permitted either to state what the patient had given as the history of the case, or to give to the jury an opinion based partially or wholly upon such history; and on review, this ruling was sustained. See also the case of Rowell v. The City of Lowell, 11 Gray, 420. So if the witness had been asked for his opinion based upon his examination, her history of the case and the statements of her husband, it would have been error for the court to permit an answer to such question. But the record presents no such ruling. So far as appears, no objections were made to any questions. The testimony was received without objection, and after it was all before the jury the motion made was to withdraw and exclude all the testimony of Dr. Neely. The doctor was a competent witness as an expert, and so far as his opinion was based upon his per sonal examination it was proper testimony; and while it may be argued with force that but one opinion was given, and that based partially upon proper and partially upon improper foundation, and that therefore the opinion as a whole was improperly presented to the jury, yet we think under the circumstances a further examination should have been had, -in order that the court might determine how much his opinion was influenced by the improper facts presented to him. The testimony had all gone to the jury without objection, and now to strike it all out, when to a certain extent his testimony was competent, would seem unjust to the parties. We are the more impressed with the propriety of this ruling, by the fact that five other physicians preceding the witness had each given an opinion to substantially the same effect, and founded alone upon personal examination. To reverse the . _ . , . judgment because the sixth physician appears to have based his opinion partially upon improper considerations, without anything to indicate how far those improper considerations affected his opinion, or whether the statements he so received were or were not in harmony with those testified to upon the trial, would be giving undue weight to what may have been only a technical inaccuracy. (Moore v. Lea’s Adm’r, 32 Ala. 375.) The only other matter we shall notice is, the refusal of the court to give to the defendant at the close of the testimony, such time as it desired for preparing special instructions in writing. Rulings of this kind are largely within the discretion of the trial court, and unless it is apparent that such discretion has been abused, its rulings -must be sustained. Now the testimony in this case was limited in extent, and about the only question upon which the jury could hesitate and deliberate, was the amount the plaintiff ought to recover. There were no doubtful or intricate questions of law, no matters which required careful, special and minute instructions. As a matter of fact, the defendant, w^° was rePresented by two counsel, prepared and asked four separate instructions in writing, one of which was given by the court; and we cannot say, in view of the testimony, the questions involved, and the amount of the recovery, that the court abused its discretion in not giving the'defendant further time to prepare written instructions. Again, it is said that, as the court refused to give the defendant time to prepare instructions in writing, and as counsel for the defendant had, at the commencement of the trial, requested instructions in writing, by the following written request: “The defendant respectfully asks and requests the court to generally instruct the jury upon the law of the case, and in writing, and especially upon the interest of witnesses, the relation of witnesses to the plaintiff at the time of the injury, damages, negligence, and preponderance of testimony,” and as the court failed to distinctly charge the jury that the burden of proof is on the plaintiff, therefore the judgment should be reversed. We cannot think that in this any substantial wrong was done to the defendant, because upon the testimony there seemed to be no substantial doubt that the plaintiff was entitled to recover something, and the language of the instructions given implies that the burden is on the plaintiff. The second instruction given by the court reads: “If you shall find from the testimony that the plaintiff was injured by the negligence of the defendant, and did not contribute thereto herself, you should find for the plaintiff; otherwise, for the defendant.” This plainly implies that the fact of the defendant’s negligence must be affirmatively made out. Of course we do not say that cases mayr not arise in which the omission of the court to give an instruction like that referred to might not be error sufficient to justify a reversal, but we cannot think the omission in this case sufficiently prejudicial. There really was but one question for the jury to consider, and that was, how much ought the plaintiff to recover ? The amount of the verdict is doubtless large — $1,000; but it is not so large as to compel interference by the court. The judgment of the district court will therefore be affirmed. All the Justices concurring.	[ -16, -22, -24, -82, 24, 98, 34, -54, 97, -123, -90, -77, -83, -55, 17, 43, -10, 63, 81, 35, 86, -77, 23, -93, -46, -109, 122, -51, -77, 74, -28, -12, 77, 32, 74, 85, 102, -53, -59, 84, -50, -76, -87, -24, 25, -16, 48, 126, -58, 71, 49, -97, -61, 46, 24, -58, 105, 40, 107, -83, -16, 49, -118, 5, 101, 2, -95, 36, -98, 39, -40, 44, -104, -79, 0, -24, 114, -90, -128, -12, 105, -103, 4, 98, 98, 33, 5, 101, -4, -88, 14, 122, 15, -121, 50, 88, -127, 73, -65, -99, 114, 80, 7, 124, -6, 92, 25, 52, 3, -117, -108, -79, -49, 116, -98, 10, -21, 47, 50, 85, -52, 50, 93, 4, 114, -103, -33, -66 ]
Per Curiam: More than one year having intervened between the rendition of judgment in this case in the district court and the filing of the petition in error in this court, this court is without jurisdiction to review such judgment, and the petition in error must therefore be dismissed. (Laws of 1881, ch. 126, §2.)	[ -78, 112, 93, -66, -86, 33, 96, -98, 93, 97, -31, 51, -81, -110, -108, 125, 115, 43, 117, 115, -36, -78, 54, -63, -10, -77, -125, -33, -76, 127, -9, 90, 76, 48, -62, -43, 71, -64, 9, -48, -122, 7, 25, -20, -15, 43, 48, 115, 82, 15, 113, 94, -25, -82, 31, 71, -24, 60, -56, -83, -46, -8, -114, 13, 107, 4, -127, 119, 20, 6, -56, 46, -116, 29, 1, -8, -16, -74, -121, 29, 47, -71, 32, 102, 98, -96, 69, -17, -112, -120, 54, 78, -113, -90, -101, 56, -23, -49, -74, -105, 108, -108, 39, -4, 100, -59, 19, 32, -128, -54, -44, -73, -97, 112, -72, 75, -26, 3, 50, 53, -123, -18, 88, -57, 59, -110, -38, -6 ]
Per Curiam: The judgment in this case is affirmed, on the •authority of the following cases: Bartlett v. Feeney, 11 Kas. 593; Moody v. Arthur, 16 Kas. 419; Abeles v. Cohen, 8 Kas. 180; Bridge Co. v. Murphy, 13 Kas. 35; Shepard v. Allen, 16 Kas. 184.	[ -74, 120, -60, 93, 74, 64, 26, -101, 83, -95, -15, 83, 41, -127, 21, 107, -25, 111, 81, -13, -59, -73, 87, -47, -46, -13, -13, -44, -78, -3, -25, -1, 76, 112, -54, 85, 102, -120, -51, 82, -58, 21, -104, -23, 89, -48, 48, 63, 80, 15, 53, -41, -77, 40, 27, -53, -83, 44, -7, -91, 80, -8, -100, 31, 111, 7, -77, 36, -98, -121, -56, 58, -60, 49, 1, -8, 114, -76, 71, -76, 111, -7, 8, 98, 98, 17, -119, -19, -112, -104, 37, -10, -115, -90, -98, 24, -56, 69, -105, 61, 117, 18, 47, -6, -2, -35, 95, -24, 5, -114, -34, -75, -121, 124, -104, 66, -21, 65, 17, 85, -60, 36, 84, -64, 55, -109, -114, -108 ]
The opinion of the court was delivered by 'Valentine,. J.: This was an action brought by Drury J. Field against Ellen B. Davis, for damages resulting from injuries to the plaintiff's foot and ankle. It appears that in 1881, and several years prior thereto, the defendant was the owner of a grain elevator in the city of Fort Scott; that the approach thereto on the east side was by an inclined plane, some sixty feet long and ten or twelve feet wide, the east end resting on the ground, and the west end about twelve feet above the ground and connecting with a level floor, which was a part of the elevator building. This elevator was used for the purpose of receiving grain and delivering the same into railroad cars. On January 25, 1881, the defendant, by one of her agents, purchased a wagon-load of oats from the plaintiff, and the plaintiff drove his team, which was a span of mules, with the wagon-load of oats, up the inclined plane and into the elevator, where the plaintiff and a hired man of the defendant commenced to unload the oats. The mules attached to the wagon, either from fright or viciousness, soon became refractory and unmanageable, and backed the wagon out of the elevator upon the inclined plane and against the railing on the south side, breaking the railing, and precipitating the wagon and themselves to the ground below. While the mules were thus backing, the plaintiff jumped from the wagon to the ground, and so crushed his ankle that amputation of his foot and ankle became necessary, and the amputation was performed. The plaintiff claims that the injury to his foot and ankle resulted from a failure of the defendant to provide a sufficient barrier to prevent the wagon from being backed out of the elevator and off the inclined plane. The verdict and judgment in the court below were in favor of the defendant and against the plaintiff, and the plaintiff, as plaintiff in error, brings the case to this court for review. The plaintiff in this court presents two principal matters of alleged error: First, he claims that the court below erred in permitting the defendant to cross-examine the plaintiff, who was a witness in the case on his own behalf, with regard to his residence and his ownership of property; second, he claims that the court below erred in permitting the defendant to ask three of her own witnesses substantially the following question: “You may state whether or not any similar accident in unloading at this place has ever before'occurred, or any accident whatever.” And also that the court erred in giving to the jury the following instruction: “The defendant did not, by inviting people to trade with her, incur any liability for mere fortuitous accidents that might befall them; but only for such injuries as might occur by some fault or negligence on her part.” We shall consider these alleged errors in their order. I. The plaintiff on his direct examination, testified, among other things, as follows: That he was thirty-eight years old; that he resided about ten miles northeast of Fort Scott; that-he first came to Kansas in October, 1858; that he had always lived in the same locality since that time; that he was a farmer, and had always been a farmer ever since he was a man; that he had always been a very hard-working man; that he had constantly worked on his farm; that he had worked some with cattle, but not as a speculator; that he raised grain and fed it to his cattle; that he raised the oats which he sold to the defendant on his farm; and that he took them out of a rail pen on his farm on the day on which he sold them to the defendant. On the cross-examination it appeared that he first resided in Kansas, after coming west, in 1858, but that afterward, and about four years before this accident occurred, he removed into the edge of the state of Missouri, where he resided at the time of the accident and at the time of the trial, and that he owned land both in Kansas and in Mis souri. The defendant then asked the plaintiff how much land he had in Kansas, and how much he had in Missouri; and these questions were objected to, upon the ground, among others, that it was not proper cross-examination. The court below overruled the objection, and the plaintiff excepted. We think the ruling of the court below was correct. The defendant also asked the plaintiff how many cattle he had, and how many work-teams; to which questions the plaintiff also objected, on the ground, among others, that these questions did not come within the legitimate scope of a proper cross-examination. The court below overruled these objections, and the plaintiff excepted. And again we think the ruling of the court below was correct. The plaintiff had already testified, on his examination in chief, with regard to his farm and farm operations, his place of residence, and that he was a hard-working farmer and cattle raiser, etc., and for that reason we think it was not improper for the defendant to cross-examine with reference to the same subjects — the exact place of his residence, the extent of his farming operations, stock raising, etc., although we do not see that these matters had much to do with the merits of the case; but as they were first introduced by the plaintiff himself, we cannot reverse the judgment of the court below, simply because the defendant chose to cross-examine upon them, and to have them presented in a somewhat different light from that in which they were first presented to the court and jury, on the plaintiff’s examination in chief. But even if the foregoing questions did not come within the legitimate scope of a proper cross-examination, still we cannot see that the matters thus elicited were so prejudicial to the plaintiff’s substantial rights that they should require a reversal of the judgment of the court below. It must be remembered that the witness of whom these questions were asked was the plaintiff himself, and much that he stated, even on the cross-examination, was his own evidence, not given in strict response to the questions put to him by the defendant, but were volunteered on his own account; and therefore we think that the defendant also had a right to cross-examine upon these volunteer statements. II. The evidence in this case showed that the three witnesses, to whom were put the objectionable questions as to whether any similar accident had ever before occurred at the defendant’s elevator, had been familiarly acquainted with the defendant’s elevator for about five years before the accident occurred, and knew the amount of grain received at such elevator during that time. The evidence also showed that frequently as many as fifty or sixty wagon-loads of grain were received and unloaded at that elevator in one day, and that the number received and unloaded would average about twenty-five loads per day; and yet, notwithstanding the many thousands of loads of grain that had been received and unloaded during the five years previous to the happening of this particular accident, not a single accident óf a similar kind had ever before occurred. We think this evidence was competent. The case of Lewis v. Smith, 107 Mass. 334, relied on by the plaintiff, has no application to this case. That was an action on contract, against a ferryman, for failing to transport, as a common carrier of passengers and teams, across the Connecticut river, the plaintiff’s team, consisting of two mules and a wagon, while this action is one in tort, founded strictly upon alleged negligence, and not upon contract; and there is no pretense in this case that the defendant was an insurer of the plaintiff’s foot and anklef or even of his wagon and mules, as common carriers of goods always are of the goods which they receive for transportation. The following cases come nearer being applicable to this case, to wit: Kelsey v. Barney, 12 N. Y. 425; Quinlan v. The City of Utica, 18 Hun, 217; Kent v. Town of Lincoln, 32 Vt. 591; Dougan v. Champlain Transportation Co., 56 N. Y. 2; 1 Wharton on Ev., §§ 41-44, and cases there cited. The main question involved in the present case is, whether the elevator and the east approach thereto were reasonably safe for teams with loaded wagons to be driven up the approach and into the elevator and unloaded'; or in other words, were they such as a reasonably prudent person, exercising reasonable diligence, would consider safe for the purposes for which they were designed? And it seems to us that proof that thousands of teams, with loaded wagons, had for a period of five years been driven up the inclined plane and into the defendant’s elevator and unloaded, and the teams driven out again, and that no accident had ever before occurred, would be some evidence that the inclined plane and elevator were reasonably safe for that purpose, and that a reasonably prudent person, exercising ordinary diligence, would consider them safe; and for this reason we think the evidence was competent. If an accident had ever before occurred at that elevator, it would have been an easy matter for the plaintiff to have ascertained the fact, and to have shown it to the Jury. In the present case, the plaintiff’s mules were large and strong, weighing about 2,200 pounds; they were evidently not of the most gentle nature; they backed the wagon, which still had about half a load of oats in it, over a block of wood about a foot long and four inches square, which had been placed behind one of the hind-wheels, of the wagon, and against the railing of the inclined plane, with great force and violence, which broke the railing and precipitated the wagon and the mules to the ground below. It would seem from the evidence that no such thing had ever before happened. Not even the railing had ever before been injured to any extent. This would seem practically to prove that the inclined plane and the elevator, with all their appliances and accompaniments, were reasonably safe. Of course, independent facts, not tending to prove any issue in the case, are not admissible in evidence; but facts which do tend to prove some issue in the case, although seemingly independent, are admissible, unless they are incompetent from some other reason than merely that they are independent facts. The plaintiff also complains that the word “accident” was used. No specific objection was made to the use of . this word in the court below, and' the only manner in which any question was raised with reference thereto was by objecting to the evidence upon the ground that it was “incompetent, immaterial and irrelevant, not a proper question, and because it does not reflect on any issue in this case.” There was no ■objection made, nor exception taken, to the instruction of the court below which contains this word. Now such word is often used in similar cases, and is probably about the best word that could be used in such cases. It has various shades of •meaning; but in such cases as in this, it probably means an event from some cause whose nature and character are yet unknown, but which is submitted to the court and jury upon the evidence for the purpose of having the same duly and legally ascertained and determined. We think it is fair to call such an event an accident, until its nature is legally ascertained, and the event known to be either a culpable consequence of some negligent act or omission, or an innocent, unforeseen, fortuitous casualty, for which no one is culpably responsible. We have heard the word used so often in similar eases, that it does not seem out of place to us, and we do not think the jury could have been misled by it. The judgment of the court below will be affirmed. All the Justices concurring.	[ -15, 104, -71, -113, 30, 98, 42, -38, 67, -127, -74, 83, -23, 1, 13, 33, 54, 61, 85, 106, 70, -77, 3, -93, -46, -45, -13, -59, -79, 104, 100, 102, 73, 2, 74, 85, -26, -64, 65, 30, -50, 5, -24, -20, 25, 32, 60, 59, 22, 78, 113, 46, -13, 42, 93, -61, 41, 40, 107, 57, -5, -7, -126, 5, 124, 2, 51, 38, -98, -63, -56, 24, -104, 53, 2, -8, 82, -26, -126, -12, 99, -69, 76, 98, 102, 97, 29, -17, 40, -104, 39, 95, -67, -89, -126, 8, 107, 5, -68, -99, 17, 86, 39, -2, -9, 77, 29, 44, 7, -118, -108, -111, -17, 56, -108, -57, -53, -113, 18, 113, -51, -96, 93, 68, 113, -109, -49, -66 ]
The opinion of the court was delivered by Brewer, J.: This was an action to restrain the issue of $27,000 of bonds of Center township, in Woodson county, to the St. L., Ft. S. & Wichita railroad company. The facts are these: Upon a proper petition, the county commissioners ordered an election in said township on the' question of subscribing to the stock of said railroad in the sum of $27,000, and paying therefor in township bonds. The vote was duly had, and a majority voted in favor of the subscription. All the proceedings were legal and regular, except as hereinafter stated. At the time of the vote the last completed assessment of the taxable property of said township was $215,602. This was the assessment for the year 1880. Before the commencement of this action, and before the railroad company had acquired any right to any bonds under the vote by the completion of their road through the township, and before any attempt on the part of the commissioners to issue the bonds, the assessment for 1881 had been completed, and amounted to $227,711. Under the limitations of the statute, the $27,000 voted exceeded the amount which the township might lawfully issue upon the basis of the assessment of 1880 by the sum of $614.45. Upon the basis of the assessment of 1881, the whole $27,000 might lawfully issue. The district court held that the assessment of 1880 controlled, and enjoined the issue, of $614.45 of these bonds, and refused to enjoin the issue of the remainder, $26,385.55. The railroad company and the county commissioners took no exception to the ruling of the district court, but the plaintiff excepted to the refusal to enjoin the issue of the $26,385.55, and brings the case here for review. Three propositions are (made by counsel for plaintiff: First, it is insisted that the assessment of 1880 controlled, and that, as under it the township had voted to issue more bonds than it legally could, the vote was a nullity, and no power vested in the commissioners to issue any bonds; second, that, as the proposition submitted to the voters was to issue bond's in the denomination of five hundred dollars each, and as the sum which could legally be issued, to wit, the sum of $26,385.55, was not divisible into bonds of $500 each, the vote was a nullity, and no bonds could lawfully be issued; and third, that § 10 of the act under which the bonds were voted is unconstitutional, (see the case of Bank v. Barber, 24 Kas. 534,) yet being written in the act, must be presumed to have been considered by the voters of the township, and to have influenced their votes. Of these in their order: Assuming that the assessment of 1880 controlled, was the vote authorizing the issue of the $27,000 a nullity? We think not. The prohibition in the statute is on the issue of the bonds. -^s laD§uage “ No township sha.ll be allowed to issue more than,” etc., so that whatever amount the township may be willing to vote, and whatever amount they may by their vote authorize the commissioners to issue, the statute steps in and prescribes a limit beyond which the commissioners may not go. Reference is made to the case of Marcy v. The Township of Oswego, 92 U. S. 637, decided in the first instance in the circuit court by Mr. Justice Miller; and to the case of Hurt v. Hamilton, 25 Kas. 76, in which an opinion is expressed antagonistic to the views of the supreme court of the United States in the case just cited. In the former case, Mr. Justice Miller held that, because the township had voted to issue more bonds than it lawfully could under the statute, the whole series thus voted was void. The .supreme court of the United State reversed this ruling, and held them all valid, at least in the hands of bona fide holders. But a marked distinction exists between the statute under which the bonds were voted in this case and that under which the bonds' in the Oswego case were voted. That statute provided, (Laws 1870, ch. 90, §1,) “that the amount of bonds voted by any township shall not be above such an amount,” etc. This, as heretofore stated, is; “No township shall be allowed to issue more than,” etc. But even in that case, notwithstanding the amount authorized by the vote was excessive, yet if in fact the authorities had only issued the amount the township might legally issue, it may well be doubted whether in the circuit •court the bonds would not have been held valid by Mr. Justice Miller, and of course there would be no question as to the •decision in the supreme court of the United States; but here the limitation is upon the issue, not upon the vote. However •excessive the authority apparently granted by the vote to the commissioners, that authority is good up to the statutory limit. The vote of the township was simply an authorization by a principal to its agent, and the agent may perform the act authorized, except so far as it is restrained by some provision of law. Generally speaking, a grant of excessive authority isgood up to the legal'limit, and an authorization to do more than can legally be done is void only as to the excess. Hence we conclude that the first and principal objection to the ruling of the district court cannot be sustained. The second objection does not seem to have much weight. The amount, the time, and the interest, are the matters of substance, and other matters are of minor importance. Doubtless the bonds up to the extent of $26,000 should be issued in sums of $500 each, but the fact that there re- . , 7 mams a small fraction which cannot be put in a bond of that amount does not invalidate the whole action. The mere form in which a small portion of this proposed indebtedness must be placed, does not go to the substance of the transaction, or enter into the real merits of the proposed contract between the railroad company and the township. Neither do we see any force in the last objection. It cannot be seriously contended that the invalidity of this section renders the balance of the statute void. That is perfect and complete by itself, and does not depend at all upon the objectionable portion of this section. (Cooley's Const. Lim. 177 to 181.) The idea of counsel seems to be that in this § 10 there is presented an extra inducement to the voters of the township to incur this indebtedness; that but for such inducement the bonds would not have been voted, and as the inducement fails, the vote must also fail. Yet as all persons are presumed to know the law, the presumption of course is that the voters all knew that this section is unconstitutional, and were therefore uninfluenced in their action by this apparent inducement. Moreover, this court had, in the case of Bank v. Barber, cited, supra, already decided that a similar section in a kindred act is unconstitutional ; and it must be presumed that this fact was also known to the voters. It may be argued that this presumption of the knowledge of the invalidity of a statute, or of a knowledge of the rulings and decisions of this court, is a mere fiction of law, and that as a matter of fact the voters had no such knowledge. This is very possible; but it is almost equally probable that a large majority of the voters never read the statute under which the bonds were voted, and had no actual knowledge of the existence of this § 10, or of the inducement which it was supposed to.hold out. So that whether we rely upon presumptions of law or upon the probabilities of actual knowledge, it would not seem that this § 10 cuts any-real figure in the transaction. Obviously the township wanted the railroad, was willing to incur this indebtedness, and whether wisely or not it offered the inducement of its subscription to the railroad company for the sake of obtaining the railroad. Having made this offer, and the railroad company acting upon it and expending its money in the construction of its road, we see no legal reason for relieving the township of the obligation it thereby proffered to assume to the company. We s?e no error in the case, and the judgment of the district court must be affirmed. All the Justices concurring.	[ -16, -18, -79, -2, 74, 96, 59, -102, 48, -79, -91, 83, -87, 114, 21, 49, -65, 127, 17, 106, -44, -13, 87, -29, -106, -77, -45, -51, -77, 73, 100, -58, 77, 48, 10, -107, 70, -52, 69, 92, -114, -124, -87, -24, -37, 72, 52, -1, 118, 75, 49, -86, -5, 40, 28, -29, 77, 45, -5, -87, -112, -5, -72, -57, 127, 4, 17, 70, -104, -63, -56, 62, -104, 53, 30, -24, 127, -90, -122, -10, 13, -103, 12, -26, 39, 33, 53, -49, -96, -119, 6, -101, -115, -25, -106, 25, -30, 11, -74, -99, 101, 66, 7, -2, -29, 5, 25, 124, 4, -50, -10, -77, 14, 52, -117, 3, -21, -87, -80, 97, -52, 22, 92, 103, 58, 27, -113, -100 ]
The opinion of the court was delivered by Brewer, J.: This is an original case in this court, brought for the purpose of testing the title of defendant to the office of probate judge of Barton county. To the petition defendant has interposed a demurrer, and the case is now submitted to us upon such demurrer. The facts as alleged in the petition, and admitted by the demurrer, are as follows: In 1880, one E. L. Chapman was duly elected and qualified as probate judge of Barton county. On the 3d day of October, 1881, he wrote and forwarded to the governor an unconditional resignation of such office. Such resignation reached the governor’s office on October 4th, and the governors hands, October 8th, and on the same day the governor wrote to Judge Chapman: “Your resignation has just been received, and is hereby accepted, and to take effect on appointment- of your successor.” This letter was received by Judge Chapman ou the 9th of October. About the first of November, 1881, the defendant was appointed by the governor probate judge, and immediately qualified and entered upon the duties of the office. Prior to the November election of 1881, each of the three political parties in Barton county made a nomination for probate judge. The sheriff in his proclamation of election, notified the electors that a probate judge was to be elected, and nearly every one who voted at that election, voted for one or the other of the candidates. The relator received a majority of the votes cast at that election, received a certificate of election, and qualified in due time. He then demanded possession of the office from the defendant, who refused to surrender, claiming that he was entitled to hold the office during the year 1882. Thereupon this action was commenced. The election in November, 1881, was held on the 8th day of November. Intermediate the 9th of October and the time the defendant qualified and entered upon the duties of his office, Judge Chapman, as probate judge, performed several official acts, but in affixing his signature he did so in this form: “ E. L. Chapman, acting probate judge.” The relator had been, prior to the election, a justice of the peace, but did not act as such officer from and after the day of the election;- and on the 24th day of November he forwarded his resignation to the governor, which resignation was accepted, and a successor appointed and duly qualified. The case therefore turns upon this question: When did the vacancy occur in the office -by ■the resignation of Judge Chapman? Section 11, article 3, constitution of the state, contains this language: “In case of vacancy in any judicial office, it shall be filled by appointment of the governor, until the next regular election which shall occur more than thirty days after such vacancy shall have happened:” Section 12 reads: “All judicial officers shall hold their offices until their successors shall have qualified.” Now it is claimed by plaintiff that Judge Chapman’s resignation took effect October 3d, because upon that day an abso lute and unconditional resignation was by him transmitted to the governor, the officer entitled to receive it; and this upon the theory that the incumbent of a public office has an absolute right to lay aside its duties and resign the office at any time, and that no acceptance of such resignation is necessary. Plaintiff further contends that if there be any doubt as to this, the resignation was complete and took effect on October 8th, the day it was received and acknowledged by the governor. On the other hand, it is contended by the defendant that acceptance, or something equivalent thereto, is necessary to perfect a resignation; that a party who has once accepted an office and entered upon its duties has not the absolute right at his own pleasure to abandon its duties and resign the office; that the public are interested as well as the individual incumbent; and that as acceptance or its equivalent is necessary to perfect a resignation, when the acceptance specifies the time at Which it will take effect, until such time the resignation is not complete. The law as stated by the defendant is correct. The public have the right to command the services of any citizen in any official position which they may designate; and he may not, after entering upon the duties of the position, abandon them at his option. It is true that this, as a practical question, will seldom arise, and is of little moment; for in this country there are so many willing and eager to serve the public in official positions that the difficulty will always be to find offices for the aspirants rather than to find incumbents for the offices. Still, emergencies may arise in which the absolute and superior right of the public must be recognized. In times of peace the ranks of the army are supplied by voluntary enlistment, but in times of war and great national danger compulsory military service may be and has been required. So also service as a juror, who is a quasi officer, is compulsory, and the individual citizen may not decline at his pleasure. So a party elected or appointed to any township office, who shall refuse or neglect to serve therein, unless unable from disease or other infirmity to discharge its duties, is liable to a fine of $25. (Comp. Laws of 1879, p. 985, §46.) It is true there are some authorities in this country which seem to recognize the absolute right of the office-holder to resign his office, and hold that the resignation is complete without acceptance. These authorities are collected by plaintiffin his brief, and are The United States v. Wright, 1 McLean, 509; People v. Porter, 6 Cal. 26; State, ex rel., v. Clark, 3 Nev. 566; State v. Fitts, 49 Ala. 402; Gates v. Delaware, 12 Iowa, 405. See also Bunting v. Willis, 27 Gratt. (Va.) 144. The opposite view is, however, recognized in other states, as will appear from the following authorities: Hoke v. Henderson, 4 Dev. (N. C.) L. 1; Van Orsdall v. Hazard, 3 Hill (N. Y.) 243; State v. Ferguson, 31 N. J. L. 107. In the case from North Carolina, supra, Chief Justice Ruffin, in speaking for the court, said: “An officer may certainly resign, but without acceptance his resignation is nothing, and he remains in office. It is not true that an office is held at the will of either party. It is held at the will of both. Generally resignations are accepted; and that has been so much a matter of course with respect to lucrative offices as to have grown into a common notion that to resign is a matter of right. But it is otherwise. The public has a right to the services of all the citizens, and may demand them in all civil departments as well as in the military; hence there are on our statute book several acts to compel men to serve in offices. ■ Every man is obliged upon a general. principle, after entering upon his office, to discharge the duties of it while he continues in office, and he cannot lay it down until the public, or those to whom the authority is confided, are satisfied that the office is in a proper state to be left, and the officer discharged.” See also the case of London v. Headen, 76 N. C. 72. This question has recently been examined by the supreme court of the United States, in a case which arose in the state of Michigan, (Edwards v. United States, 103 U. S. 471,) in which the question is examined and authorities reviewed at some length by Mr. Justice Bradley, and the conclusion of the court is unanimous that, where the common law obtains, and in the absence of express statute, acceptance is necessary to perfect a resignation. In this case, citing the English authorities, he shows that the unquestioned rule of the common law was in accordance with the conclusion reached by the court. In our own state, by express statute, (Comp. Laws 1879, p. 1013, §3,) “the common law, as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people, shall remain in force in aid' of the general statutes of this state.” See also Railway Co. v. Nichols, 9 Kas. 252. So far as any special provisions of our statutes are concerned, they suggest no departure from the common-law doctrine, and are very like the provisions of the Michigan statutes which are referred to and considered by the supreme court of the United States in the opinion just cited. It follows from these considerations, that the resignation forwarded by Judge Chapman did not take effect absolutely at the time it was forwarded, but required acceptance on the part of the governor, and this acceptance being .to take effect upon the appointment of a successor, the vacancy was not absolute until such appointment was made. The demurrer must therefore be sustained, and judgment entered for the defendant. All the Justices concurring.	[ -76, 108, -4, -100, -86, -32, 62, -88, 90, -109, 39, 115, -23, -111, 16, 33, 122, 13, 85, 105, -58, -74, 87, -28, 18, -13, -53, -41, -75, 105, -10, -41, 73, 40, 74, 85, 71, 68, -59, 80, -50, 5, -87, -20, -45, -24, 52, 49, 115, -101, 21, 62, -13, 43, 125, 103, 73, 44, -37, 63, 16, -72, -98, -123, 109, 15, -111, 39, -104, -125, 88, 46, -112, 53, -128, -8, 115, -90, 6, -44, 43, -71, 8, 114, 39, 1, -28, -81, -88, -119, 14, -70, -71, -26, -6, 25, -6, 10, -66, -103, 117, 80, 6, -4, -25, 6, 60, 44, 4, -50, -42, -73, 7, 40, -118, 10, -29, -113, 48, 113, -56, -14, 93, 70, 48, -103, -121, -80 ]
The opinion of the court was delivered by Brewer, J.: The facts in this case are as follows : In the winter of 1879 and 1880, defendant, now plaintiff in error, put up a quantity of ice, in what is known as Ryan’s ice-house, in Leavenworth, Kansas. After endeavoring to negotiate a sale to one A. L. Stevens, defendant entered into the following agreement of partnership with plaintiff: “This agreement, made and entered into this 21st day of April, 1880, by and between John Lamb, of Leavenworth, Leavenworth county, Kansas, and William Sexton, of Leavenworth, Leavenworth county, Kansas, witnesseth, that they have this day associated themselves together, under the name and style of the North western Ice Company, for the purpose of retailing ice in the city and county of Leavenworth, and state of Kansas, on the following terms and conditions, to wit: The said William Sexton puts in the concern 660 tons of ice, merchantable ice now at Ryan’s ice house on Five-Mile creek, in Leavenworth county, Kansas, and sells to the said John Lamb one span of horses, with their harness and wagon, now in the possession of the said William Sexton, and used as an ice-delivery wagon, in which ice the said John Lamb is to be an equal partner, upon the following terms to wit: The said John Lamb pays now over to the said William Sexton the sum of six hundred and fifty dollars, the receipt of which is hereby acknowledged and confessed, and is to pay the further sum of $150 dollars in cash, June 1st, 1880. The further sum of ($390) three hundred and ninety dollars, being the balance to be advanced by the said John Lamb, is to be taken out of the said John Lamb’s share of the proceeds, arising from the sale of the ice itself; the said John Lamb and William Sexton to be owners and partners in said ice and the proceeds thereof; the said team to be the sole property of said John Lamb, and not to be used for the partnership, unless paid for as other teams which are used by the company. “In token of our mutual consent whereunto, we have hereunto set our hands, scrawls by way of seals, this 21st day of April, 1880. John Lamb. [seal.] William Sexton, [seal.]” “Thereafter the partners appointed as their manager and agent, one C. E. Sexton, the son of defendant. At the close-of the season he made this report of sales, expenses and receipts : STATEMENT OF THE BUSINESS OF THE NORTHWESTERN IOE COMPANY. Total sales of ice...............................................................$1,572.30 Total expense.................................................................. 490.75 Net proceeds....................................................................$1,081.55 Paid 'William Sexton........................................................ 930.77J Amount due J. Lamb........................................................ $150.77J Bills not collected, $47.80. Leavenworth, Oct. 12, 1880. C. E. Sexton.” Dissatisfied therewith, plaintiff brought his action in the-nature of an action of accounting, in which he charged that defendant did not put into the concern 660 tons of ice, and that he did not make a correct account of the amount sold and the moneys received. The case was tried by the court without a jury, special findings of facts made, and judgment rendered in favor of the plaintiff for $632.13, as well as for one-half of the uncollected accounts, and one-half of the moneys reported by the manager as in his hands. From this judgment the defendant brings error to this court. The first question presented is as to the interpretation placed by the district court upon the contract between the parties. That contract the court interpreted as an agreement on the part of the defendant to put into the partnership 660' tons of ice. This interpretation we think is correct. Counsel argue that the contract was not on the part of the defendant executory; that is, that it was-J ' ' not an agreement that he would put into the-Ryan ice-house 660 tons, but an agreement that he does now put into the partnership a certain amount of ice, to wit, 660-tons already stored in the Ryan ice-house. Conceding that in a certain sense this is true, and still it is an agreement to put into the partnership 660 tons, in agreement amounting to a representation that he has that amount in the Ryan ice-house. It is not an agreement to put all the ice that he has in such ice-house, but only an agreement to put in 660 tons. If, as a matter of fact, he had more than that amount in the Eyan ice-house — and by the affidavit of David Atchison Field, ■on a subsequent petition for a new trial, in a ease to be here•after considered by us, it appears that in 1881 said Atchison had 2,000 tons of ice therein — defendant would have been at ■liberty to make other disposition of any ice in excess of 660 tons. Such an agreement could not be considered as a mere •contract to put in whatever ice then belonged to him in the Eyan ice-house, whether the amount were 200 or 1,000 tons, but simply an agreement to put in 660 tons, which agreement was equivalent to a statement that he had that amount in the Eyan ice-house, and that that amount he would put into the partnership, reserving to himself the right to make any other disposition of any surplus amount he might have therein. It would be doing violence to the language to hold that, by this contract, the defendant agreed to put in all the ice he then had in the Eyan ice-house, be it ■ more or less, and that the plaintiff entered into the agreement, taking what ice the defendant had in the Eyan ice-house, be it less or ■more than 660 tons. The defendant had put the ice up, and the least that can be said of the agreement, in view of the facts, is, that it is a representation that > he had in such ice-house the 660 tons; and upon the basis of such representation, plaintiff entered into partnership and paid his money. If as a matter of fact the defendant had less than 660 tons, the plaintiff paid his money into the partnership upon a false basis, and was entitled to recover damages accordingly. We see no error in the ruling made by the court, in its interpretation of the contract. Upon the report made by the manager of the partnership, it would appear that only 160 or 170 tons were in fact sold, and that in the sale of so much ice the entire amount in the Eyan ice-house was disposed of; and this brings us to the second question presented. The court, over the objection of defendant, admitted the testimony of several witnesses that they had been in the ice business in the city of Leavenworth for a series of years, and that with ice properly handled and managed, only a certain per cent, was lost by melting, etc. The question now presented is, was such testimony competent for the purpose of determining what amount of ice was originally in the ice-house? It is true that the most direct testitimony would be that of those who put ice up, or of parties-who measured the ice after it was already in the ice-house; (and yet we think such testimony was competent, and tended to show the amount of ice originally there. Counsel call it expert testimony, and say that it is not legitimate expert testimony; and yet it is the testimony of those experienced in the business of handling ice as to the ordinary waste in such handling, and therefore we think competent testimony. It tends most clearly to show either that the amount of ice claimed was not originally there, or that the defendant, or the manager, or some other party, had made improper disposition of such ice; for if ice properly handled loses in ordinary sale by retail only from 30 to 50 per cent., and if only 160 to 170 tons are reported as sold, then it follows either that the ice was improperly handled and managed by the agent, or that sales made were not reported, or that some parties had improperly taken .ice from the ice-house, or else that the amount of ice originally reported was not there; and while this was not the most direct and positive testimony, yet it certainly was testimony competent to be considered, and testimony, in the absence of more direct and satisfactory testimony, sufficient to sustain and uphold the conclusions of the trial judge. It is certainly testimony which, presuming good faith on the part of the agent, and good faith on the part of the defendant, tends strongly to show that there was a great mistake as to the amount of ice which in fact he had originally put up in the ice-house. It is objected that the court erred in refusing to permit the defendant to give parol testimony as to the terms of the agreement between himself and plaintiff. We see no error in the rulings of the district court in this’ reSpeet. The specific question which was ruled out was: “ State what conversation occurred between yourself and the plaintiff about the sale of the ice, and what the agreement was.” The testimony was ruled out, on the ground that the agreement was in writing, and spoke for itself. Clearly this ruling was right. Counsel says that the court erred in this, that it refused to permit defendant to give his version of the trade after permitting the plaintiff to tell the history of the transaction. This statement is not borne out by the record. The plaintiff was asked, it is true, how much ice there was in the Ryan ice-house at the time of the purchase. The court permitted the plaintiff to answer this question, and he answered that he did not know. This is the only matter connected with the purchase in respect to which the plaintiff testified over the objection of the defendant. A final error alleged is, that the findings are not supported by the evidence. In this, too, we are compelled to sustain the ruling of the district court. It is true the , . . • . direct testimony oí one witness who assisted in measuring the ice was to the effect that there were more than 660 tons of ice; but upon the testimony above referred to of several witnesses as to the per cent, of ice wasted in handling, we cannot say that the court had not sufficient evidence to sustain a finding against the direct testimony of this witness. These are the principal matters of error alleged, and in them appears nothing to justify us in reversing the judgment of the district court, and it will therefore be affirmed. All'the Justices concurring.	[ -14, 106, -108, -81, 24, 96, 42, -37, 65, -93, 101, 115, -55, -45, 9, 113, -121, 125, 85, 122, -64, -77, 23, -64, -62, -13, -47, -51, -79, 110, -28, -59, 13, 48, 74, -43, -26, -53, -59, -36, -116, 4, 10, -8, -47, 16, -76, 107, 34, 74, 113, 14, -41, 42, 88, -29, 73, 46, -3, 41, -47, -15, -94, 71, 125, 18, -109, 34, -100, -59, -56, 46, -112, 113, 8, -24, 91, -90, -128, 116, 47, -87, 9, 102, 99, 35, 21, -117, 36, -4, 13, -1, -99, -89, -16, 88, 35, 105, -66, 29, 115, 18, 3, 122, -21, 21, 29, 116, 0, -102, -76, -125, -51, 46, -106, 23, -37, -113, 0, 101, -35, -88, 93, 102, 48, -101, -113, -9 ]
The opinion of the court was delivered by Valentine, J.: This was an action brought by W. J. Cash against the Atchison & Nebraska railroad company under the railroad stock-killing law of 1874, (Comp. Laws of 1879, p. 784,) for the value of a certain mare belonging to the plaintiff, alleged to have been killed by the railroad company in operating its road. The mare was killed by the railroad company near the city of Atchison, in Atchison county, Kansas. No part of the railroad was fenced. It appears that the plaintiff was driving his mare through the city of Atchison; that she became very much frightened; that she broke loose from him and ran away. She entered upon the railroad track in the city of Atchison at a place where the railroad company was npt bound to inclose its road with a fence, and ran northwardly at great speed, along and upon the railroad track, for a distance of about one mile from where she first entered upon the railroad track, and about one-half mile beyond the city limits, when she came near a bridge belonging to the railroad company. As to what course she then took, the parties differ. The railroad company claims that she still followed the railroad track and entered upon the bridge, where she was struck by an engine attached to a train coming from the north and moving southwardly, which caused her death. On the other hand, the plaintiff claims that the mare left the railroad track and passed around the bridge on the west side thereof, and then northwardly for some distance before she again entered upon the premises of the railroad company; and that afterward she entered upon the railroad track north of the bridge, and was moving southwardly toward her home in the city of Atchison, when an engine and train of cars belonging to the defendant overtook her and struck her, just north of the bridge, carrying her over the bridge and throwing her off the track just south of the bridge, throwing a portion of her remains on one side of the track and the other portion on the other side of the track. The theory of the railroad company is, that the mare never left the railroad track after she entered upon it in the city of Atchison until she was killed; while the theory of the plaintiff is, that the mare left the railroad track just south of the bridge at which she was killed, and passed entirely off from the defendant’s premises and upon-other property; and that afterward she again entered upon the railroad track and was killed by the defendant’s engine as before stated. Now if the theory of the railroad company is correct, then of course the railroad company is not liable; but if the theory of the plaintiff is correct, the railroad company is certainly liable; for the mere fact that the plaintiff’s mare at first entered upon the railroad track where the defendant was not bound to fence its road, is not a good defense for killing the mare after she had passed from the railroad.company’s premises and had again entered upon the road at another place where the road was not fenced, but where the company was bound in law to inclose its road with a lawful fence. We think the defendant’s theory is not only against the findings of the court below, but it is also'against the evidence introduced in the case. That the mare ran along the railroad track" from the city of Atchison to a point near the bridge where she was killed, is unquestioned; but the court found, among other things, that “At said point said mare left the track apparently to avoid said bridge, and she ran down into the bed of the branch, and then she got upon the track again north of said bridge.” The plaintiff testified upon the trial, that after the mare broke loose from him and ran away, he followed her along the railroad track until he had passed about one hundred yards north of the bridge, where he met Wilson Smock, of whom he inquired whether he had seen any such mare or not, ■describing her. The witness was not allowed to state what Smock said to him, the railroad company objecting to the evidence; but Smock testified upon the trial that he told the plaintiff, and that in fact he saw such an animal north of the bridge, and west of the railroad track. Smock was not sure, however, whether he met the plaintiff on the north side or on the south side of the bridge. Smock resided north of the bridge, and near the railroad track; but how far north of the bridge the evidence does not show. He passed along the entire length of the track from his home to the city of Atchison, and the mare was not on the track at that time. The plaintiff also passed along the track from the city of. Atchison, to a distance of about one hundred yards north of the bridge, and to the place where he met Smock, and he saw nothing of the mare. The plaintiff, after meeting Smock, returned to the city of Atchison. It was then nearly dark, and the plaintiff could not see sufficiently to hunt for the mare any longer. The next morning the plaintiff returned to the bridge and found the remains of his mare just south of the bridge, finding pieces of her on both sides of the track. He found blood north of the bridge, and found blood and hair on the bridge, from one end to the other. The bridge, however, was only about eighteen or twenty feet long. He also found horse tracks at a point south of the bridge, passing from the railroad track and around on the west side of the bridge. He also found horse tracks north of the bridge. As above stated, after Smock and the plaintiff' met each other, Smock passed on to the city of Atchison, following the railroad track, and it does not appear that he either saw or heard anything of the train that caused the death of the plaintiff’s mare; and although plaintiff thought he heard the whistle of an engine, it does not appear that he saw or heard anything further connected with a railroad train; so that it must have been some considerable time after Smock and the plaintiff passed along the track before the mare was killed. At the rate of speed at which the mare was going when she left Atchison, she must have reached the bridge much sooner than either the plaintiff or Smock, and may have passed a great distance beyond there before either the plaintiff or Smock reached the bridge. Just how long after the plaintiff and Smock passed over the bridge before the train which killed the mare arrived, is not shown; but at the time the train arrived it was very dark. Although the headlight was in perfect condition, yet the train hands, as at least one of them testified, could not see the mare until they got so near to her that they could not stop the train before it reached her. . There was probably time enough elapsed, after the mare had passed the bridge, for her fright to have subsided, and for a disposition to have sprung up within her to return to her home in Atchison. j It will therefore be seen that the evidence is strongly against the theory of the defendant; and while it does not prove be yond all controversy the theory of the plaintiff, yet it tends very strongly to prove such theory, and it is amply sufficient to justify the court below in finding for the plaintiff. Neither the evidence, however, nor the finding of the court below upon this subject, is entirely satisfactory; both show that the mare left the railroad track and passed around the bridge, and again entered upon the track; but neither shows conclusively that the mare passed entirely beyond the defendant’s premises. It is probably fair, however, to presume that she did, and that the court intended to so find. It has not been the rule of the supreme court to reverse the judgments of the district court unless it appears clearly and affirmatively that the district court has committed error; and it does not so appear in this case. As before stated, if the mare passed entirely beyond the defendant’s premises, and then again entered upon them at a place where the road was not fenced, and where it could have been legally fenced, the company is liable; and in support of the decision and judgment of the court below, we should presume that such was the case. ■ It will be remembered that the road was not fenced anywhere; so that if the mare at the last time she passed upon the road, passed upon it at any place except where the company was not under legal obligation to fence the road, the company is liable for the injury done. The judgment of the court below will be affirmed. Brewer, J., concurring. Horton, C. J.: Upon the argument of this cause, it seemed to me that the decision in Missouri Pacific Rld. Co. v. Leggett, ante, p. 323, was decisive against any recovery by the plaintiff below; but a consideration of the findings of the district judge, and the evidence introduced by the plaintiff below upon the trial, satisfy me that the animal, after entering upon the railroad track where the road could not be legally fenced, afterward and before being struck by the cars, passed entirely off from the company’s premises, and then returned to the track. Therefore the case of the Missouri Pacific Rld. Co. v. Leggett does not apply.	[ -13, 118, -48, -67, 106, 106, -94, -102, 113, -61, -92, 83, -115, -53, 1, 113, -18, -83, -44, 107, 118, -77, 67, -96, -109, 115, -15, -59, -77, 72, -20, -42, 77, 48, 10, 21, -26, 74, 65, 94, -114, 108, -118, -24, 91, -56, 62, 123, 102, 78, 49, -113, -5, 43, 28, -29, 41, 62, 123, 45, -64, 121, -53, 7, 127, 6, 48, 36, -74, -93, -56, 62, -40, 49, 0, -8, 115, -92, -106, -12, 97, -55, 12, -26, 99, 33, 21, -113, 36, -120, 47, -42, -123, -89, -110, 24, 99, 1, -106, -97, 88, 86, 7, 124, -2, 5, 93, -4, 1, -49, -74, -117, 127, 38, -110, 53, -53, -75, 50, 113, -36, -94, 76, 68, 52, -101, -113, -2 ]
The opinion of the court was delivered by Valentine, J.: This was an action in the nature of ejectment, brought by Nelson A. Reicheneker against Nicholas McAlpine, Edward O’Brien, and Sarah A. Henry, to recover a certain strip of land, 13J chains in length and 150 feet in breadth, in Wyandotte county, Kansas. The real question in the case is, the proper location of a boundary line between the premises of the respective parties. The plaintiff owns the land on the south side of such boundary line, and the defendants own the land on the north side thereof; and it is claimed by the plaintiff that the defendants have taken possession of a strip of land 150 feet wide, immediately south of the true boundary line between the property of the plaintiff and the defendants, respectively. Originally, the entire property belonged to Matthew Walker. He died, and the property descended to his widow, Lydia B. Walker, and to his sevén children, Thomas G., Adaline, Sarah L., Malcolm, Percy L., Clarence, and Lilian. Afterward, and in 1868, the property was partitioned between the children, the widow receiving property elsewhere. The property is bounded as follows: On the north by the north half of section thirty-four, township ten, range twenty-five; on the east by the Missouri river; on the south by land belonging to the Union Pacific railway company, and designated as “the Union Pacific railway land;” and on the west by the Missouri River railroad. The land was divided into seven lots or portions, and one lot given to each of the children. The plaintiff purchased the two lots or subdivisions constituting the southern portion of the land, and the defendants purchased the five lots or subdivisions constituting the northern^ portion of the land; and the only question presented in this-ease is, where is the true boundary line between the land of the-plaintiff and that of the defendants? On the trial in the court below the plaintiff introduced in evidence the partition proceedings, including the report of' the commissioners appointed to partition the property, and-including a statement of what they had done, and also a map. showing what they had done, and the order of the court, approving and confirming the proceedings and report of the-commissioners, which order reads as follows: “ It is ordered that said proceedings and report be and the same are hereby approved and confirmed, and that said parties hold in severalty the parts and premises so set off and assigned to each respectively.” The plaintiff also introduced in evidence his title deeds. The report of the commissioners shows that the plaintiff’s, land extends from the Union Pacific railway land northwardly, along the line of the Missouri River railroad! 22 chains. There is nothing in the report of the commissioners which shows that the length of the plaintiff’s land is on a straight line running due north and south; but it would be something less than it is on the line following the Missouri River railroad. The plaintiff also introduced evidence tending to show that by running a line northwardly from the Union Pacific railway lands the distance designated by the report of the commissioners, it would show that the defendants had passed too far south and were in possession of a certain strip of land of the plaintiff’s, next to the Missouri River railroad, 300 feet long by 108 feet wide; and another strip of land belonging to the plaintiff, extending on east from the first-mentioned strip to the Missouri river, being 10 feet wide. The plaintiff then, rested. Said report of the commissioners appointed to partition the land, shows that the defendants’ land should be 25^Tfw chains in width, north and south. It was also admitted that the defendants owned all the land which belonged to the estate of Matthew Walker, north of the plaintiff’s land. It was also shown that there were no monuments or anything else, except the report of the commissioners, designating the boundary lines between the several allotments to the respective heirs of Matthew Walker; and there never had been anything else to show such boundary lines. The defendants then offered to prove that by measuring from the northern boundary of their land, (which is a portion of the northern boundary of the south half of section thirty-four, township ten, range twenty-five,) southwardly, for the distance to which their land should extend south, according to the report of the partition commissioners, such measurement would show that they were not in possession of any more land than belonged to them; but the plaintiff objected to the introduction of the evidence, upon the ground that it would impeach the verity of the partition proceedings; and the court below sustained the objection, and excluded the evidence. Upon the admission or exclusion of this evidence the whole case turned; and because of the exclusion of this evidence, judgment was rendered in favor of the plaintiff and against the defendants for the strip of land in controversy. We think the court below erred. The evidence offered to be introduced by the defendants would no more impeach the verity of the partition proceedings than the evidence actually introduced by the plaintiff. The fact was, that the entire tract of land lacked about two chains of being as long, north and south, as the report of the commissioners made it; that while a measurement from the southern boundary of the land, northwardly, wouldshow that the defendants werein possession of a narrow strip of the plaintiff’s land, yet, if the measurement were from the northern boundary of the land, south wardly, it would show that the defendants were not in possession of any of the plaintiff’s land, and were not in possession even of all they were entitled to. Suppose that the defendants had introduced their evidence first, then would the plaintiff have been debarred from introducing the evidence which he in fact introduced, because it would have impeached the verity of the partition proceedings? We think not; but we think there would have been just as much reason for excluding his evidence as there was for excluding the defendants’ evidence. It must be remembered that the partitioning of the property was all done at the same time; that the report of the commissioners was all made at the same time, and that the approval and confirmation of the report were all done at the same time; and when we speak of the report of the commissioners, we do not simply mean- what they said in words, but we also mean to include the map which they filed with their report, and which they made a part thereof. We have already given the words of the approval and confirmation of the report; and by it no one of the allottees has any precedence over any of the others. These proceedings are unlike a case where a deed for a certain portion of land is made to one person, designating specific boundaries of the land conveyed, and afterward a deed is made to still another person for another portion of the land, designating other specific boundaries, but the boundaries of the two portions of the iand overlapping each other so as to appear to convey a strip of the land to both persons; for the title in such a case for all of the portion of land first conveyed would vest in the first grantee before the second deed was executed, and the grantor would have no power to again convey any part of the property which he had previously conveyed to the first grantee. In this case all the parties are claiming under the same instrument, the same proceedings, the same decree, and the titles of the allottees under the partition proceedings all vested at one and the same time and by the same instrument. The right of everyone to his full quota of land is therefore equal to the right of every other one. It is evident that the partition proceeding are erroneous; for they apparently show that the ' land partitioned is about two chains longer, north and south, than it actually is; but it must not be supposed that this mistake or error occurred solely in the measurement of any one particular allotment. It should be supposed that the error occurred during the measurement of the entire length of the-entire tract of land from north to south; and when the land is ascertained to be about, two chains shorter than the partition proceedings show it to be, each allotment should bear its-proportionate share of the loss. This would certainly be equitable, and it would certainly be inequitable for one of theallottees to lose all, and the others to lose nothing. Counsel for plaintiffs in error (defendants below) lays down certain propositions, which he claims have been settled by the universal current of the decisions. The propositions are as follows: “First: That if the monuments or marks on the ground for the corners of the several allotments can be found, such marks or monuments must govern, and distances and bearings must be disregarded. “Second: If the monuments or marks on the ground are-lost or obliterated, parol evidence may be introduced in connection with the record to show their location. “Third: If no monuments were set, except theoretically on paper, the proper location of those monuments will be determined by pro-rating the distances as given in the records, according to the length of frontage of the several allotments. “Fourth: If the actual computed sum of the length of the-several allotments as given exceed the length of the tract partitioned, it will be construed that the decree means, that upon the hypothesis that the entire length of the whole tract is-as stated, then the length of each assignment shall be as given ‘t but if it be less, the assignments of allotments must lose in like proportion.” We think these propositions are correct, and we decide this-case upon the theory of their correctness. (See authorities cited in brief of counsel for plaintiffs in error.) The errors of the court below in excluding evidence were properly preserved by exceptions, by motion for a new trial, etc. The judgment of the court below will be reversed, and the cause remanded for a new trial. All the Justices concurring.	[ -16, 78, -16, 60, 56, 104, 40, -104, 75, -13, -9, 119, 105, -54, 1, 57, 98, 29, 81, 121, -26, -77, 15, -96, 82, -13, -45, -51, -79, 76, 100, -41, 76, 96, -54, 85, -62, -62, -59, 92, -50, 4, -88, -56, 90, 64, 52, 105, 82, 94, 113, -81, -13, 40, 29, -61, 64, 46, -53, 44, 17, -72, -81, -105, 127, 18, 1, 39, -110, 3, 104, 58, -104, 117, 1, -56, 115, -92, -106, 116, 67, -101, -88, -26, 99, 41, 85, -17, 124, -104, 14, -69, -115, -90, -74, 88, 99, 76, -98, -103, 81, 80, 7, 124, -17, -123, 28, 124, -127, -117, -74, -127, 47, 56, -110, -121, -53, -91, 50, 112, -51, 98, 92, 103, 58, -101, -113, -71 ]
The opinion of the court was delivered by "Valentine, J.: This was an action of forcible entry and detainer, brought by A. M. Burdette against P. H. Corgan, before a justice of the peace of Allen county. The defense set up in the defendant’s pleading was a general denial, and that he held possession of the premises rightfully, as the tenant of the person who was the rightful and legal owner of the property. The case was removed to the district court, where it was tried by the court without a jury; and the court made the following findings of fact and law, to wit: “1. E. R. Russell had had charge of the premises in question from sometime in 1875, until the time of the entry in question. “2. From 1875 until a short time prior to the entry complained of, one J. H. Lewis claimed to own said premises. “ 3. A short time prior to the entry complained of, Russell ' was instructed by Mr. Keplinger, attorney for Burdette, to' take charge of the premises for Burdette. Prior to and at the date of said instructions, Russell had learned that Lewis had conveyed to Burdette, and he knew that Burdette had visited the land prior to such alleged purchase. “4. Prior to receiving said instructions and since 1875, Russell had had control of said premises by authority of an arrangement with said J. H. Lewis, by which Russell was to have the use of the land in consideration of his improving the same. There was no definite time for the termination of said arrangement. “ 5. After receiving said instructions, Russell had control of the premises for Burdette and by such authority as said instructions from. Burdette’s attorney gave, and he supposed his authority from Lewis terminated when Lewis sold to Burdette; and thereafter Russell was not Burdette’s tenant, but supposed himself 'to be his agent. “6. Russell lived about one and a half miles from the premises in question, and visited them from 1875 to the time of the entry, two or three times a week down to the time of the entry. “7. In 1875 Russell leased the premises to one Gilbert Lewis, who remained thereon until the time of defendant’s entry. During the time of the continuance of said lease, Russell paid Gilbert five dollars per month for taking care of stock and other property which Russell had on the place. “8. On the 20th day of August, 1879, Russell bought all of Gilbert Lewis’s crops on the place, and at the same time, or a few days later, but not later than September 2d, an agreement was made between Russell and Lewis by which Lewis was to give up the place shortly. Lewis’s daughter-in-law, who was living with him as part of the family, was sick. According to Russell’s testimony, Lewis was to stay until Russell wanted the place, which according to Lewis he was to leave the last of September. By this agreement Lewis was to take care of Russell’s stock on the place up to the time of his leaving, in consideration of fuel and continued occupancy of the house on the place. “ 9. Until after the entry, Gilbert Lewis had never heard of J. H. Lewis or Burdette, but always supposed Russell owned the land. “10. A short time prior to the entry complained of, G. P. Smith, an attorney at law, who was attorney and agent for certain parties claiming title to the premises adverse to plaintiff’s grantor, Lewis, learned from the records that Lewis had conveyed the premises to Burdette. He immediately went to the premises the day before the last of September, 1879; was informed by Gilbert Lewis that he had occupied as tenant of E. R. Russell, but that his time had expired, and he would move as soon as he could get a house. “11. At that time G. P. Smith had charge of an adjoining farm, which was then occupied by one P. H. Corgan, the defendant, as a renter. Said Smith soon after, and on the first day of October, 1879, rented the premises in dispute to Corgan, and rented the premises formerly occupied by Corgan to Gilbert Lewis; and by the terms of the leasing, possession of both places was to be given as soon as they could exchange houses. “12. Corgan and a married son of Lewis’s living with Lewis, made an arrangement by which the two families were to assist each other in moving. Corgan had lived for one year on a farm adjoining the land in dispute, and always prior to his leasing from Smith supposed the land in dispute belonged to Russell, and at the date of the entry both Corgan and Lewis understood that Corgan’s entry would be under a title adverse to Russell, and that the entry of Corgan was without Russell’s knowledge and against his wish, and Corgan supposed if he did not enter without Russell’s knowledge he would not at all. “ 13. On the morning of October 2, Corgan had moved all his things except some minor articles of trifling value upon the premises in dispute, together with all his family, by 8 or 9 o’clock, and one load of Lewis’s property had been moved to the place left by Corgan. “ 14. The wagons carrying Corgan’s property were drawn across the field along a field road, and entered the premises in dispute by driving across a two-year-old hedge. Lewis and Corgan assisted in unloading Corgan’s goods and reloading Lewis’s goods in the same wagons. Two wagons were used, one belonging to Corgan, the other to William Smith, a son of G. P. Smith, who then lived with and constituted a part of G. P. Smith’s family. “ 15. About 8 or 9 o’clock A. M., Oct. 2d, Russell arrived at the place and found all Corgan’s family, also all of Gilbert Lewis’s family, in the house. Everything was in confusion and torn up. No bedsteads or stoves were up. He ordered Corgan and Corgan refused to go, and said he was there by authority of G. P. Smith. Russell went away, and soon returned bringing with him a young colored man in his employ. Russell went with the colored man into the house, and told the colored boy to hold possession for him, Russell. Russell also put some plows and cultivators inside the house, and then went away. The colored man brought his dinner with him, and ate inside the house. “16. About one or two o’clock G. P. Smith came to the premises and found the young colored man in the house on the premises, and was informed that he had been placed there by Russell to hold possession for Russell. Smith told him to come out, and he immediately went out of the house and waited in the yard until Russell returned. “17. Soon after, Russell returned, andas he approached, Smith asked Corgan if he wished Russell to enter the house. Corgan replied he had no business with Russell. Smith then picked up a stick, and stood in the door and ordered Russell not to enter. Smith then told Russell if he tried to force his way in he would brain him. Russell again attempted to, and Smith struck him with the stick. A son of Smith present took hold of Russell, and urged him not to try to enter or his father would surely kill him. Russell and the colored boy then went away. At this time all of Lewis’s family had left the house, except a daughter-in-law, who with her husband had for months lived with Gilbert Lewis as one of the family, and all of Gilbert Lewis’s things except some chickens, ducks, old barrels and a kitchen table, had been taken away. “The deed from Lewis to Burdette was executed Sept. 16, 1876, and recorded Sept. 24,1879, and was a quitclaim deed. “There was due service of the preliminary notice. “As a conclusion of law, the court finds that the defendant is entitled to judgment against the plaintiff for costs, and that the plaintiff herein is not the real party in interest.” It will be seen from the foregoing facts that the defendant, Corgan, took possession of the premises in controversy as a mere intruder, a trespasser, and a wrong-doer, without color of right. At first it'was his intention, with the aid of Smith and in collusion with Lewis, who was in possession of the property under Russell, to take possession of the property merely through fraud, in the absence of Russell and without his knowledge, or the knowledge of any person under whom Russell claimed; but force becoming necessary, he resorted to force, and obtained the possession of the property through force as well as fraud, and then held it by force, It is true that he did not personally resort to personal violence; nor was it necessary that he should do so, in order to constitute his intrusion a forcible entry; but Smith, his principal associate and coadjutor — indeed the prime mover in the unlawful enterprise — did use personal violence. It is claimed that the defendant did not know that Burdette owned the land. Now, constructively, he did know it, (see act relating to conveyances, § 20;) for Burdette’s deed was on record at the time he made his unlawful entry; and Smith, his principal coadjutor, knew it almost absolutely, for he had examined the records with reference thereto, previous to that time. It is also claimed that none of the confederates in this unlawful undertaking had any knowledge that Russell was the mere agent of Burdette. It is claimed that even Smith did not know this, but that he supposed that Russell had some right to the premises as a tenant or otherwise, which would continue at least until the first of March succeeding. (See brief of defendant in error.) Now, we do not think that it makes any difference that the parties did not know just, what the rights and interests of Burdette were. When parties combine or conspire together to commit an unlawful act, and then carry their purpose into execution, they must be prepared to take all the consequences of their wrong-doing. When parties undertake to injure A, and in doing so also injure B, they cannot plead as a defense that they had no intention of injuring B. When parties set out to commit an unlawful act, they cannot plead that they did not know that it would injure the person whom in fact it did injure. It is also claimed that Burdette had no such possession of the property as will enable him to maintain the action of forcible entry and detainer. Now he was certainly in possession of the property, by his agent, Russell; -and that was sufficient. (DeGraw v. Prior, 53 Mo. 313.) And an abandonment of premises by the tenant is a restoration of the occupancy of the landlord, and the landlord comes into sole possession of the premises by such abandonment, although he may not be personally present. (May v. Luckett, 48 Mo. 472; Krank v. Nichols, 6 Mo. App. 72.) But it is further claimed, that Russell was not the agent of Burdette, but was his tenant. This, we think, is contrary to the findings of the court below; and it is certainly against the understanding of both Burdette and Russell. They supposed that Russell was in fact the agent of Burdette, although it may have been an agency coupled with an interest. And they both believed that Burdette was the proper party to bring this action; for the action was commenced in the name of Burdette, and the complaint was sworn to by Russell as the agent of Burdette. It is probable, however, that either of them had such a possession of the property, and such an interest therein, that either might maintain the action of forcible entry and detainer to recover the same; and we certainly think that Burdette had such possession and such interest, and therefore that he may maintain the action. Mere wrong-doers are seldom encouraged in making nice distinctions and raising difficult and embarrassing questions, to defeat an action brought against them by a person who has been injured by them) and who apparently has the right to sue them, when they have no other ground for so doing than that some other person may also have been injured, and may have an action against them. Usually, any person who is injured by their wrongful acts may bring the action. In this case, both Burdette and Russell were injured. But evidently Russell did not think that he was sufficiently injured, or had sufficient interest in the subject-matter of the controversy to compensate him for his time and trouble and expense in bringing and prosecuting an action for such injury; and probably he would have abandoned the premises to the defendant, Corgan, if Burdette had not interfered. Then what shall Burdette do? May he maintain the action of forcible entry and detainer to recover the possession of his property; or must he resort to the more tedious action of ejectment with its two trials, and longer delays, and this, too, to obtain possession of his property from a mere wrong-doer? Russell’s possession was Burdette’s possession; and Burdette was, in fact, in possession by Russell when the defendant made his entry on the premises. But even where an entry is made in the absence of the party entitled to the possession, and afterward he appears, and the party making the entry keeps him out of the possession by force — this is sufficient to authorize the party entitled to the possession to maintain the action of forcible entry and detainer against the w^ong-doer. (Steinlien v. Halstead, 42 Wis. 422; Ainsworth v. Barry, 35 Wis. 136; Newton v. Doyle, 38 Mich. 645. Seé also Campbell v. Coonradt, 22 Kas. 704; Coonradt v. Campbell, 25 Kas. 227.) Of course we are now speaking of land which has been in the actual occupation, personally or by agent, of the person claiming to have been ousted, and not vacant and unoccupied land which has never been in the actual occupation of anyone, or which-has never been improved or put in cultivation. In the present case we think the plaintiff, Burdette, might maintain the action as an action of forcible entry only, or as an action of forcible detainer only. The action of forcible entry requires that the entry and ouster be forcible, but it may be maintained against any person who commits a forcible entry and ouster, even if he were the owner of the property and entitled to the immediate possession; while the action of forcible detainer requires that the possession be not only forcible, but also unlawful; and if the possession is forcible and unlawful, then the action of forcible detainer may be maintained against the party holding the possession, although his original entry and possession may have been ever so peaceable and.rightful and lawful. In the present case the plaintiff’s possession was rightful and lawful, and the defendant’s entry and detainer were both forcible and illegal, and without even any color of right. The judgment of the court below will be reversed, and the cause remanded with the order that judgment be rendered in favor of the plaintiff and against the defendant for the possession of the property, and for costs. All the Justices concurring.	[ -31, -26, -83, -98, 56, 96, 106, -103, 66, -93, 96, 115, 41, -46, 1, 107, -14, 45, 85, 121, -58, -77, 2, 99, -6, -5, -45, -43, -75, -55, -74, -41, 8, 32, -54, -99, -26, -64, -63, -36, -114, 33, -71, 108, -43, 64, 52, 57, 101, 75, 117, -116, -13, 47, 25, -45, 9, 60, -53, 13, 112, -7, 54, 7, -49, 22, 17, 38, -110, -127, 72, 10, -112, 53, -127, -88, 115, -92, -122, 84, 13, -119, 12, 38, 99, 33, -11, -21, -24, -103, 37, -77, -99, -90, -16, 72, 2, 0, -98, -103, 92, 16, 71, -2, -26, 28, 28, 108, 15, -49, -110, -111, 7, 56, -110, 65, -61, 67, 40, 113, -57, -73, 93, 101, 112, 27, -114, -104 ]
The opinion of the court was delivered by Horton, C. J.: On August 24, 1881, defendant in error (plaintiff below) filed his bill of particulars against plaintiff in error (defendant below), before a justice of the peace of Saline county, in the following words, omitting title and the name of the justice: “The plaintiff says, that during the summer of 1881, at numerous times, the defendant did unlawfully enter, and direct to be entered, the following premises: The N.J of N.W. -j- of sec. 1, town fourteen, south, of range six, Ellsworth county, Kansas; and at different times did destroy, or cause to be destroyed, grain growing on tbe premises above described, by tramping down a strip of wheat one-half mile long and one rod wide. The plaintiff believes he has been damaged in the sum of twenty-five dollars, and costs of this suit.” A trial was had, and after the introduction of the evidence the justice allowed the bill of particulars to be amended by an allegation that the plaintiff below was, and is, the lawful owner of the land described therein. The justice rendered judgment in favor of the plaintiff for the sum of $13, with costs. The defendant then took the ease to the district court ■of Saline county, on a petition in error, and upon a hearing thereon the judgment of the justice was affirmed. The defendant brings the case here, and asks to have the judgments of the district court, and of the justice, reversed and vacated for alleged errors. It is urged that the bill of particulars is fatally defective. In support of this objection, it is said that it does not appear that the plaintiff below had any possession of the premises, and as the premises described in the bill of particulars are situate in Ellsworth county, that the action should have been brought in that county instead'of Saline county. The objection as to the venue of the trial is without merit. The record shows that the summons was duly served in Saline county, and the action is one of those which' may be brought in the coiinty where the defendant resides or may be summoned. The bill of particulars, even with the amendment, appears to have been very loosely drawn, but still we hardly think it fatally defective. Fairly construing all the pleadings, possibly we should say that the plaintiff below was in the possession of the property. If so, he was entitled to recover if the evidence sustained the averments of the bill of particulars. Where one is in the actual and peaceable possession of real estate, he may recover for injuries to growing crops, whether he be in fact the owner or entitled to the possession of real estate or not. (Caldwell v. Custard, 7 Kas. 303.) The defendant below filed an affidavit under oath, setting forth therein the defense that title and boundary were in question, and upon the affidavit and answer, asked that the action should be stayed before the justice, and that the justice should certify the case to the district court of his county. The justice refused so to do, and this ruling is also alleged as error. The record in the case does not purport to contain all the evidence introduced on the trial, and we cannot say upon the record that the action was one that the justice ought to have certified up. Justices have jurisdiction in actions for trespass on real estate where damages demanded for such trespass do not exceed $100. In this case the amount claimed was only $25. If it appeared at the trial that the boundaries of the land were not in dispute in the action, no error was committed in re fusing the stay applied for. The mere filing of an answer, stating that the boundaries of the land are in dispute, although verified as required by §7 of civil procedure before justices, will not necessarily oust the justice of jurisdiction. The judgment will be affirmed. . All the Justices concurring.	[ -78, 104, -16, 12, -118, -32, 40, -118, 73, -95, -90, 83, -19, -46, 4, 121, 98, 13, 81, 107, 70, -73, 6, -29, 18, -13, -45, -41, -77, 73, -28, -41, 72, 16, 74, 21, 70, -56, -127, -108, -114, 4, 41, 96, -39, 8, 60, 109, 118, 91, 113, 46, -13, 46, 29, 67, -23, 44, 75, 61, -39, -16, -86, 93, 93, 2, 35, 6, -100, 7, 74, 58, -112, 57, 9, -4, 123, -90, -122, -12, 7, -69, 8, 102, 98, 33, 45, -17, 56, 8, 47, 123, 13, -89, -112, 8, 123, 40, -66, -103, 53, 20, 7, -6, -19, 5, 29, 108, 1, -54, -112, -109, -113, 56, -112, 95, -13, -93, 48, 97, -59, -26, 89, 71, 114, -101, -113, -67 ]
The opinion of the court was delivered by Valentine, J.: This is an original proceeding in habeas corpus, in which the plaintiff, Willis Franklin, charges the defendant, Thomas F. Westfall, with illegally restraining the plaintiff of his liberty, and asking that' he may be released by this court. From the meager statement of the facts of the case in the pleadings, and the few additional facts as shown by the evidence, the facts of the case, with the questions of law involved, seem to be substantially as follows: On June 8, 1877, the city of Ottawa, a city of the second class, passed an ordinance regulating and restraining the sale of intoxicating liquors. This ordinance provided for the issuing of licenses, under certain conditions, to persons to sell intoxicating liquors, and also provided for the punishment of all persons who should sell intoxicating liquors without a license, or in violation of the ordinance. This ordinance, we think,- was valid at the time it was adopted. We do not perceive any good reason for holding that it is in violation of § 9 of the second-class-city act, which provides, among other things, “That no ordinance shall contain more than one subject, which shall be clearly expressed in its title.” (Comp. Laws of 1879, pp. 165 and 166.) Nor do we perceive any good reason for holding the ordinance to be invalid under any other section of the statutes, or of the constitution; and we think the statutes and the constitution at that time authorized the adoption of just such ordinances; and in this connection, we would refer especially to the following statutes: Section 1 of the dramshop act, (Comp. Laws 1879, p. 386,) and §§ 31,47,48, 49 and 67 of the second-class-city act, (Comp. Laws 1879, pp. 169,173 and 176;) also, article 4 of the second-class-city act relating to the powers and duties of police judges, (Comp, Laws 1879, pp. 178-180.) Since the adoption of this ordinance, § 1 of the dramshop act has been repealed, and § 47 of the second-class-city act has been amended. All the other sections of the statutes above cited still remain in force, except as they have been impliedly . modified or repealed by the adoption of the prohibitory amendment to the constitution in 1880, and the passage of the prohibition act of 1881. (Laws of 1881, pp. 233-244.) And while the repeal of § 1 of the dramshop act, the amendment of § 47 of the second-class-city act, and the adoption of the prohibitory amendment and the passage of the prohibition act, take away .the power of cities of the second class to authorize the sale of intoxicating liquors, or to grant licenses for that purpose, yet we do not think that such repeal, amendment, adoption of the prohibitory amendment, or passage of the prohibition act, takes away the power of cities of the second class to pass ordinances to restrain and prohibit the sale of intoxicating liquors, or at least to punish persons who sell intoxicating liquors in violation of law and of the city ordinances. Section 31 of the second-class-city act is still in force, and it provides, among other things, that a city of the second class may pass “ordinances not repugnant to the constitution and laws of this state, and such as it shall deem expedient for the good government of the city, the preserva tion of the peace and good order, the suppression of vice and immorality, the benefit of trade and commerce, and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be necessary to carry such power into effect.” Also, § 49 of the second-class-city act is still in force, and it provides, among other things, that “The city council shall have power to enact ordinances to restrain, prohibit and suppress .tippling shops, . . . disorderly houses and practices, . . . and all kinds of public indecencies.” Also, § 67 of the second-class-city act is still in force, and it provides, among other things, that a city of the second class may enact “all such ordinances, by-laws, rules and regulations, not inconsistent with the laws of the state, as may be expedient for maintaining the peace, good government and welfare of the city and its trade and commerce; and all ordinances may be enforced by prescribing and inflicting upon inhabitants, or other persons violating the same, such fine, not exceeding $100, or such imprisonment, not exceeding three months, or both such fine and imprisonment as may be just for a.ny one offense, recoverable.with costs of suit, together with judgment of imprisonment until the fines and costs be paid or satisfied; and any person committed for the non-payment of fine and costs, or either, while in custody may be compelled to work on the streets, alleys, avenues, areas and public grounds of the city, .under the direction of the street commissioner, or other proper officer, and at such rate per day as the council may by ordinance prescribe, until such fine and costs are satisfied.” On December 24, 1881, Willis Franklin, the petitioner in this case, sold and retailed intoxicating liquors in a certain building in Ottawa, Kansas, known as '“Franklin’s barber shop,” without having any license ór permit therefor, and in violation of law, and of the said city ordinance. Afterward, he was arrested and prosecuted before the police judge of said city, for the violation of said ordinance; and on February 21, 1882, after a trial had been duly had, was found guilty and sentenced by the police judge to pay a fine of $100, and to pay the costs of the suit, taxed at $24.70, and to stand committed to the county jail until the fine and costs were paid; and in default of payment, to perform one hundred and twenty-four and seven-tenths days’ work, under the charge of the city marshal, upon the streets, alleys and public grounds of the city. There being no city jail in the city of Ottawa, the city marshal placed the petitioner, Willis Franklin, in the custody of Thomas F. Westfall, the sheriff and jailer of Franklin county, so that the petitioner might be confined in the’county jail, which is situated in the said city of Ottawa; and the defendant, Westfall, is now holding the petitioner, Franklin, in his custody under a mittimus issued by the police judge of the city of Ottawa. Of course we pass over all irregularities in the proceedings of the police judge, and of the city marshal and the sheriff, as mere irregularities cannot’ be inquired into in proceedings in habeas corpus. (Civil Code, § 671.) The only question for us to consider is, whether the police judge had jurisdiction to render a judgment similar to the one which he did render. Or, as this judgment seems to be authorized by the said city ordinance, the real question seems to be: Is the city ordinance authorizing such a judgment valid? This question would certainly have to be answered in the affirmative, if it were not for the prohibitory amendment of 1880 and the prohibition act of 1881; so that, going still further back, the substantial question appears to be: Do the prohibitory amendment and the prohibition act so far repeal the city ordinance as to make it illegal to prosecute and punish persons, under the city ordinance and before the police judge, for selling intoxicating liquors in violation of law and in violation of the city ordinance, and without having any license or permit therefor? . Now neither the prohibitory amendment nor the prohibition act in terms repeals this ordinance or any part thereof, and if either repeals it at all, it repeals it only by implication, and repeals by implication are never favored in law. Before any provision of law, (whether it be part of the constitution of the state, or a part of some statute, or a part of a city or dinance,) can be held to be repealed by implication, it must clearly appear to be so repealed. Wherever the former law and the subsequent law can both be given force and effect, the former law will never be declared to be repealed by implication. Of course the prohibitory amendment and the prohibition act repeal all provisions of law authorizing cities of the second class to issue licenses permitting any person to sell intoxicating liquors, or authorizing such cities to pass ordinances for that purpose; but the prohibitory amendment and prohibition act do not anywhere, by implication or otherwise, repeal or annul the power of cities to punish persons for selling intoxicating liquors in - violation of law, in violation of the city ordinances, and without having any . license or permit therefor; (Prohibitory Amendment Cases, 24 Kas. 701, 722, 723;) nor do they repeal or annul the power of cities to pass ordinances for such purposes. We therefore think that the said ordinance of the city of Ottawa, so far as it provides for the issue of licenses for the sale of intoxicating liquors, has been repealed; but so far as ' it provides for the punishment of persons for illegally selling intoxicating liquors, we think it has not been repealed, and is still in force. Entertaining these views, it follows that the prosecution of the petitioner, Willis Franklin, under the ordinance, was not illegal, and that his prayer for release in the present case must be denied; and it is ordered accordingly. All the Justices concurring.	[ -15, -18, -36, -113, 122, 64, 32, -72, 26, -13, -89, 115, -83, 82, 5, 33, -17, 127, 81, 73, -32, -74, 23, 11, -14, -45, -45, -59, -79, -19, -26, 127, 77, 32, -21, -3, 102, -53, -63, -34, -126, 33, -88, -23, -46, 88, 52, 91, 67, 15, 113, 31, -25, 46, 28, -53, 41, 44, -55, 29, -16, -8, -87, -59, 79, 22, -77, 38, -100, -95, 90, 12, -104, 49, 1, -8, 115, -74, -122, 116, 109, -103, -119, 98, 98, -64, 1, -17, -96, -120, 44, -54, -99, 39, -112, 89, 97, -116, -98, -33, 124, 20, 7, -6, -30, -43, 25, 108, -124, -114, -74, -79, -113, 56, -122, 83, -53, 67, 48, 85, -57, 126, 94, 65, 81, -101, -113, -36 ]
The opinion of the court was delivered by Horton, C. J.: Plaintiff in error alleges that the action brought by defendant in error against him cannot be sustained, because, as he contends, he is not liable upon the bill of exchange as indorser, guarantor, or otherwise. He also alleges that if he was the indorser of the bill, he is not liable, as the bill was paid upon presentment, and if it had not been, no recovery could be had against him, as no steps were taken to charge him as indorser. He further submits that he is not liable for the money paid to the false and spurious payee, as he received no benefit from it. He claims he went to the' bank merely to identify W. W. Owen; that at the request of the cashier he wrote his name on the back of the bill, for the purpose of identifying Owen; that he had no interest in the bill, did not negotiate it, and was not informed and did not understand he was signing as an indorser. The positions taken by plaintiff in error are untenable. His contract was a written one, and he became liable to all its terms. An indorsement of a bill by a third person regularly, following that of a payee, constitutes such third person an indorser of the bill, and thereby he assumes all the obligations and liabilities of an indorser of negotiable paper. It is true, in this case, W. W. Owen was not the real payee, and was in fact a false and spurious payee only, and therefore his indorsement of the bill did not transfer title to Cochran or Atchison, but at the time of the indorsement by Cochran, the latter, by writing his name on the back of the bill, immediately following that of Owen, warranted the genuineness of the prior indorsement, and that he had a valid title thereto. By such warranty of the genuineness of the prior signature, he placed himself in the position of an indorser of the bill. He was accepted by Atchison as an indorser. The money was paid on the bill because of his indorsement, and reliance upon the well-defined contract which the-law implies by such indorse- . ment. He cannot now be heard to say he did not understand he was signing as an indorser, nor can he, after having assumed the obligations and liabilities of an indorser, relieve himself of the consequences to the injury of his indorsee, upon the ground that the loss to such indorser was occasioned by the latter’s own negligence. Cochran by his indorsement engaged the bill would be paid according to its purport, and this engagement was conditional upon due presentment or demand and notice. He also engaged that the bill was in every respect genuine; that it was the valid instrument it purported to be; that the parties thereto were competent; that he had a lawful title to the bill,- and the right to indorse it. (Daniel on Negotiable Instruments, §§ 669, 672, 673; Chalmers’s Digest, pp. 215, 217, arts. 217, 220.) It is well settled by the authorities, if it turns out that any of these latter engagements are not fulfilled, the indorser may be sued for the recovery of the original consideration which has failed, or be held liable as a party without proof of demand and notice. (Daniel on Negotiable Instruments, § 669.) Even after the payment of a bill, if it be ascertained that any of the indorsements ate forged, the drawee can recover back from the person to whom he paid it, and so each preceding indorser may recover from the person who indorsed it to him. In this case, it turned out that the engagement of Cochran as indorser was not fulfilled. W. W. Owen was not the real payee; he was in fact a false and spurious payee; he was not the lawful holder of the bill, and had no right of property or possession therein. Neither Owen nor Cochran had the right to indorse it or appropriate its proceeds. Although Atchison took the draft upon the indorsement of Cochran in good faith and for value, he had no right or title to it, and his payment of the draft to Owen did not divest or impair the title of the true owner, who had not indorsed it. If a bill is payable to the order of a person, and another person of the name of the payee gets hold of it and indorses it to a party who takes it in good faith and for value, such party acquires no title to the bill. (Chalmers’s Digest, art. 81, p. 89.) It is immaterial whether Cochran acted in good faith or not. He is held by his written contract, and as Atchison took the paper thereon and parted with his money, he was entitled to have it refunded, as he acquired no title or interest in the bill, and was wrongfully deprived of his money without any consideration therefor. Cochran was liable upon his written contract of indorsement, without proof of demand and notice. Counsel for defendant suggest that as “Owen,” not “ Owens,” indorsed his name on the back, that Atchison was guilty of negligence in taking the bill without the indorsement thereon of the name of the payee. Atchison and Cochran seem to have regarded the bill payable to W. W. Owen, and in this neither was guilty of negligence, because the difference in pronunciation between “Owen” and “Owens” is so slight as not to amount to a variance. The two names might be taken promiscuously to be the same in common use. (Stevens v. Stebbins, 3 Scam. 25.) The judgment of the district court will be affirmed. All the Justices concurring.	[ -110, 122, -47, -83, 90, 96, 40, -102, -103, -127, -89, 115, -7, -58, 4, 117, -9, 109, 64, 98, 87, -77, 39, 107, -45, -77, 83, -43, -79, 110, -12, -35, 72, 48, -62, -43, 103, 74, 67, -44, -50, 0, 9, -51, -7, 64, 48, 127, 4, 11, 113, -67, -13, 62, 25, 66, -23, 40, 107, -71, -48, -72, -102, -123, 95, 4, -127, 71, -102, 13, -8, 46, -104, 51, 1, -71, 122, -90, -122, 84, 45, -87, 9, 102, 98, 32, 101, -21, 124, -72, 46, -2, 31, -89, -110, 120, 11, 41, -75, -99, 62, 20, 6, -44, -6, 29, -103, 100, 23, -117, -46, -109, -83, 60, -100, 27, -9, -93, -112, 81, -49, -96, 93, 71, 122, -109, -98, -34 ]
The opinion of the court was delivered by Brewer, J.: This was an action of replevin, brought in the court below by the defendants in error against the plaintiff in error, the sheriff of Dickinson county, to recover the possession of a stock of drugs seized by the sheriff as the property of one A. J. Logback. The case was tried before a jury, which returned a general verdict for the plaintiffs. No question is raised in this court as to the instructions or as to the rulings of the district court in the admission or rejection of testimony; and the only error alleged is, that the verdict was not sustained by the evidence. Upon this, the facts, undisputed, are as follows: The property, at a time prior to the levy by the sheriff, was in the possession of Logback, and belonged to him. The plaintiffs claim to have purchased it; but' it is insisted that such purchase was without consideration, and there being no continued change of possession, was therefore void as against creditors. In May, 1879, Logback, desiring to start in the drug business at the town of Enterprise, and needing five hundred dollars, obtained it, through his father-in-law, Jacob Ostrom, in this way: His father-in-law mortgaged his farm to a bank for five hundred dollars, and obtained the money, which was handed to Logback. The mortgage was signed alone by Ostrom, but the note was signed by Ostrom and Logback. At the end of a year, Logback paid the interest, and the note was renewed for another year. After the execution of the mortgage, Jacob Ostrom sold the farm to his sons, the plaintiffs, they taking the property' subject to the mortgage. In October, 1880, Logback’s creditors commencing suit, and pre paring to levy upon this property, he sold it to his brothers-in-law, the plaintiffs, for this five hundred dollars. Was such sale without consideration? We think not, clearly. The transaction may be considered precisely as though the title to the farm remained still in the father-in-law; and while Log-back signed the note for this borrowed money, yet the security was unquestionably the farm of such father-in-law; and that Logback could turn the property over in payment for the five hundred dollars which his father-in-law had'obtained by mortgaging his farm, seems perfectly clear. The fact that Logback signed the note, does not make it any the less the debt of the father-in-law, or prevent his receiving from Logback the payment of that five hundred dollars, or a transfer of property in payment of it. Any different construction would result thus: If the father-in-law could not take a payment of this five hundred dollars, then the creditors might collect their debts of Logback, exhausting all the little property he had; and the father-in-law upon the maturity of the note would be compelled in some other way to raise the ■five hundred dollars, or suffer his farm to be sold under the mortgage. Surely this liability of the father-in-law is ample ■consideration for a sale of this property from Logback to him; and if so, it presents the same consideration when the sale is made to his sons, who have purchased this farm, subject to the mortgage. There was, therefore, abundant consideration to sustain the sale; and as the question of good faith was settled in favor of the transaction by the verdict of the jury, and as upon the testimony there was sufficient to sustain this finding of good faith, the general verdict in favor of the plaintiff was right, and must be sustained. The judgment will therefore be affirmed. All the Justices concurring.	[ -16, -18, -7, -114, 26, 96, 42, -72, 25, -95, -91, 115, -53, -101, 1, 121, 119, 125, -28, 106, 70, -77, 23, -93, -110, -13, -47, -35, -79, 76, -28, 87, 12, 48, 74, 117, -26, -40, -59, -108, -114, -123, -87, -18, -39, 24, 48, -85, 6, 75, 113, -98, -29, 46, 61, -57, 105, 45, -21, 61, 80, -80, -86, 13, 15, 6, -93, 34, -104, 69, 88, 46, -110, 113, 1, -24, 115, -74, -122, -44, 41, -103, 13, 102, 103, 33, 61, -17, -4, -104, 14, -66, -99, -89, -44, 88, 35, 105, -76, -99, -3, 88, -121, -4, -18, 29, 29, 108, 4, -57, -44, -105, 13, 56, -102, 3, -5, 39, 48, 113, -115, -22, 92, 71, 112, 25, -114, -13 ]
The opinion of the court was delivered by Brewer, J.: This was an action of replevin, brought by plaintiff in error (plaintiff below) against the defendant, who was sheriff of Crawford county, to recover possession of a stock of goods held by him under an execution against the husband of plaintiff. The case was tried before a jury, which returned a general verdict for the defendant. Only two questions are presented by counsel for our consideration. When the case was called for trial, counsel for plaintiff presented an affidavit for a continuance, made by the husband of plaintiff, which stated that plaintiff was in such delicate health that she could not with safety be present in court during the term and undergo the excitement and fatigue necessary and incident to a trial; that she was just convalescing from an attack of the measles, and that her presence was necessary not only to give testimony, but to assist counsel in the proper presentation of her ease; that she would, if present, testify that she owned the goods in controversy, and that her husband was in charge of them and acted in the business simply as her agent. The facts of her proposed testimony were given in detail, but it is unnecessary to' state them at length. The affidavit also stated that the husband made the affidavit because the mental and physical condition of plaintiff was such that it was not proper for her to make it. Attached to this affidavit was the certificate of a physician that he had carefully examined the plaintiff, found her convalescing from an attack of the measles, and believed that it would be dangerous for her to attend court. Both affidavit and certificate were signed and filed on the 12th day of April. The next day the application for a continuance came on for a hearing, and the court permitted the defendant to introduce a number of affidavits: those of two witnesses, that the physician whose certificate had been attached to plaintiff’s affidavit had told them that plaintiff was not sick; of three witnesses, who testified that they had seen plaintiff promenading the streets within the last few days looking as well as she had for a year past; of one witness, that plaintiff’s agent and husband, who made the affidavit for a continuance, had told him a few days prior to the commencement of the term that the case would be kept in court for several years; of one witness,- that she met plaintiff and conversed with her on the evening of April 12th, and plaintiff informed her that she was well excepting a slight cough, and that plaintiff was around attending to business; of another witness, that she was at the residence of plaintiff in the afternoon of April 12th, and that plaintiff was moderately well, going around the house as usual. Upon these affidavits and this showing the court overruled the application for a continuance; and this is the first error alleged. It is insisted that defendant had no right to file counter affidavits, and even if he had such right, he could not impeach the testimony of the physician by statements of non-professional men, but that the court should have sent other physicians to examine and see if the ■certificate already offered was correct, or a sham. We think the ruling of the district court must be sustained; for while it may be conceded that ordinarily applications for continuance are to be determined ■upon the showing made by the party applying therefor, (Wicks v. Weber, 64 Ill. 167; Whig Co. v. Tillson, 67 Ill. 351,) yet this rule does not prevent the court from making-further inquiry or receiving further testimony whenever it is suggested that an imposition is being practiced. It has been repeatedly held by this court, that trial courts have large discretion in the matter of continuances, and this discretion is broad enough to permit the court, of its own motion or on the suggestion of the adverse party, to inquire so far as to prevent any imposition or fraud. No party in a civil action can tie up the powers of the court by affidavit or certificate. Take an extreme case, and yet one not much stronger than the case at bar: Suppose an affidavit were filed that the plaintiff was at home in bed, sick and delirious, and the opposite party should insist that at the very moment of filing this affidavit the plaintiff was in an adjoining room, ready to be offered as a witness if needed, will it be urged that the court was powerless to inquire as to this fact, and bound to let the rights of the adverse party be trampled upon by ■such a perj ury ? It seems to us that the question carries its own •answer, and that the powers of the court are ample to protect -the rights of both parties. Here the affidavit filed by the plaintiff, and made by the plaintiff's husband, states that it is ■not made by her, because her mental and physical condition was such that it would be improper for her to make such an •affidavit; while from other witnesses it appears that on the very day she was about the house attending to ordinary household duties, and stating to one witness that she was well with ■■the exception of a slight cough; that during the immediately preceding days she had been promenading up and down the •streets of the city in apparent health; that her husband, who presents himself as the party managing the business, the party in immediate possession of the goods the subject of the litigation, threatens to keep the case in court for a series of years; and that the physician who makes the certificate of her ill-health, on the very day of his certificate states that she is well. It does not appear that she asked for time to make a further showing, or was hindered in any way from making it ■clear to the court that her application was true, and made in good faith. She was content to submit that application upon the showing already made; and the counter testimony which was offered so plainly disclosed that the application was not made in good faith, and was based upon falsehood, and was made simply to protract litigation, and wear out thereby the opposite side, that the court properly refused to sustain it. The other error alleged is this: On the trial an execution against the husband of plaintiff, reciting a judgment against him on the 22d day of January, 1881, was offered and received in evidence, and also a journal entry of the judgment entered and signed as of that day. On the motion for a new trial, the plaintiff offered the affidavit of two of her attorneys that the journal entry had not been in fact written out on the journal until pending the present trial, and after the execution had been offered and received in evidence. The motion for a new trial was overruled. This ruling was unquestionably correct. The record of the judgment could not be overthrown in any such way. Upon the face of the record everything was correct. Such a record imports verity. The journal was duly signed by the same judge who was presiding on the present trial, and if any fraud was being perpetrated or attempted, he would have known it. Doubtless if affidavits had been filed, charging that no judgment had ever been rendered, or that the clerk had made a fictitious entry, or that any other fraud was being perpetrated on and through the records of the district court, the judge might properly have postponed the hearing of the motion for a new trial until such time as in direct and proper proceedings the pretended judgment could have been set aside; but when upon its face a record is complete and perfect, it imports absolute verity, and cannot be set aside by mere affidavits that it ought not to be as it is, or that it was in fact made at a time different from that at which it purports to have been made. These are the only questions presented by counsel; and in them appearing no error, the judgment must be affirméd. All the Justices concurring.	[ -80, -24, -11, -113, 10, 97, 40, -104, 96, -125, 103, 115, -81, -62, 13, 107, -14, 45, 81, 121, -62, -73, 23, 105, -78, -14, -111, -41, -78, 75, -28, -1, 77, 120, 10, -43, 102, -54, -61, 20, -50, -121, -87, -20, 82, -62, 52, 59, 80, 67, 113, -98, -29, 42, 126, -57, 41, 40, 107, 61, 80, -16, -114, -107, -51, 22, -109, 38, -100, 66, -6, 46, -104, 49, -128, -20, 114, -74, -122, 116, 111, -85, 8, 98, 102, 1, 13, -17, -88, -120, 47, 62, 31, -90, -109, 73, -39, 12, -74, -99, 125, 28, 6, -8, -8, 85, 61, 108, 2, -49, -42, -79, -121, 40, -36, -93, -17, 35, 48, 81, -59, 112, 92, 65, 113, -109, -49, -74 ]
The opinion of the court was delivered by Brewer, J.: On the 27th day of September, 1881, an information was filed in the district court of Brown county,, charging the defendant and one Grant Harrington with an assault with intent to kill. Upon the trial Grant Harrington was acquitted, defendant found guilty of assault and bat tery, and sentenced to pay a fine of $100 and costs. From this sentence he brings his appeal to this court. A brief statement of the general facts of the case will help to a clearer understanding of the particular questions involved. Fielding F. Miles and Eldred Harrington are neighbors and farmers, in Brown county. While neighbors, the records of this court show that they are anything but neighborly. See the cases of Miles v. Harrington, 8 Kas. 425, and Harrington v. Miles, 11 Kas. 480. Two roads cross at right angles. Northeast of the corner is the farm of Miles, and southwest Harrington lives. Near the southwest corner of Miles’s farm there were several gaps in the fence, through which cattle ■could easily pass. On the morning of June 7,1881, Miles, driving west from his house toward the crossing, saw some of Harrington’s cattle coming across the road and entering through these gaps upon his farm; while Mrs. Harrington was coming from her house, with the evident purpose of driving the cattle back. Miles unhitched one of his horses from the wagon, and mounting it rode after the cattle, some of which, starting out of the field, went north on the road running north and south. Miles, after going up this road, came ■back toward the corner and there met the defendant, Lemuel Newland. The latter, a young man in the employ of Harrington, had ridden up for the purpose of driving the cattle home. Obviously Miles was striving to keep the cattle on his own place and impound them, while Newland was aiming to drive them back to Harrington’s place. Each being mounted, they came together at one of the gaps in the fence. Newland was riding a stallion, and the animal bit and snapped at the horse upon which Miles was riding. Miles, as he says, for the purpose of protecting his own animal caught hold of the reins of Newland’s horse. Newland told him to let go. He failed to do it, and Newland struck him with his whip. Both parties dismounted, let their horses go, and engaged in a fist fight. In a few moments Grant Harrington, the son of Eldred Harrington, came up with a pistol in his hand and handed it to Newland. Miles and Newland struggled with the pistol, and during the struggle it went off, but without hitting anybody. The only connection that Grant Harrington had with the affray was in getting the loaded pistol and handing it to Newland, and the only evidence of any intent to kill on the part of Newland was in the discharge of the pistol. The jury having acquitted Harrington altogether and Newland of any intent to kill, we can lay out of our consideration everything pertaining to that branch of the case, and consider simply whether there was error in the proceedings regarded as an action for simple assault and battery. The first questions presented are as to the admission and rejection of testimony. It appears that Miles, when he first came down the road from his house, and some minutes before the affray with Newland, met Mrs. Harrington, and the defense sought to prove what his statements were to her as to his intentions with regard to the cattle; also that after the affray was over, as an officer, Miles took possession of New-land and carried him to Hiawatha, the county seat, and the defense also sought to show his statements made as they were going to Hiawatha, in reference to the affray and the purpose with which he entered into it; but this testimony was ruled out, and this is the first matter for our consideration. We think the ruling of the court was correct. The declarations were not made during the affray, but some time before and after it; they were not therefore competent as res gestee. They were not made by a party to this action, or any one authorized to bind either party by his statements. They were not impeaching testimony, not sought to be introduced to show that the witness had made statements outside the court room different from those made by him on the witness stand. The testimony was simply hearsay. (The State v. Potter, 13 Kas. 414.) Another matter is this: Miles testified that when he took hold of Newland’s horse, Newland struck him, with the whip, a blow which skinned his nose. Newland when on the stand testified that he struck Miles with his whip, hitting him on the hand which was holding his horse. His counsel subse quently asked him the question whether on that occasion he struck Miles on the nose with the whip. This question the court refused to permit the witness to answer. Probably this was error. As a general rule, each party to an affray like this ought to be permitted to testify in detail in reference to all the matters spoken of by the opposite party. There should be full latitude of inquiry as-to all the circumstances of the encounter. If for no other reason, a jury is-better able to pass upon the credibility of either after hearing his .version of the whole matter; and yet, notwithstanding we think the question ought to have been answered, it-does not seem that the refusal to permit an answer was such an error as compels a reversal of the judgment. Each of the parties testified that Newland struck Miles with his whip, and whether the blow hit his hand or his nose was really a matter of little moment. It was, according to both, the first blow struck. So far as the question to Newland, on cross-examination, as to what he would have done with the pistol if Miles had not let go, it probably passes out of the case with the acquittal of any intent to kill. Whether the question put to the witness Bassett was proper or improper, we need not consider, for the record fails to.show that he-answered it. These are all the matters necessary to be noticed, with reference to the admission and rejection of testimony.. We pass therefore to the consideration of the errors alleged with reference to the instructions. The defendant asked 22: separate instructions, all of which were refused by the court, and in lieu thereof the court of its own motion prepared and gave 17 separate instructions. Counsel call special attention to nine of the instructions which were refused. We shall not notice these in detail, but simply say in reference to many of them that, so far as they touched upon the questions of a. reasonable doubt, the presumption of innocence, the right of self-defense, and the credibility of witnesses, they seem to have been covered by the instructions given by the court; and as has been frequently held, the court is not bound to repeat instructions or to adopt the precise language prepared by counsel. The fifth instruction refused and the last instruction given require some special notice. The fifth instruction contains these words: “If you find from the evidence that the prosecuting witness, F. F. Miles,-unlawfully assaulted the ■defendants, or either of them, or if himself unlawfully assaulted by the defendants, or either of them, pressed the assault with unnecessary violence, and if requested by the defendants or either of them to desist, refused to do so, but still further pressed the assault, then the defendants were justified in using sufficient force to make said Miles desist; and if they used no more violence than necessary to effect said purpose, then you must acquit the defendants.” This instruction the ■court refused, and properly so. This, it must be remembered, is hot a civil action brought by either of the participants in the affray, to recover damages for injuries suffered. There is no balancing of damages. The quéstion is not which used the most force, nor which was the most of a wrong-doer. It is a criminal prosecution, brought by the state against one of the parties to the affray, charging that he in and by this affray was guilty of an assault and battery. Whether Miles was also guilty, is not now a question. Now if Miles was unlawfully assaulted by the defendant, the defendant was guilty and was properly convicted, and this notwithstanding Miles, by improperly pushing the contest, thereafter became ¡himself also guilty of an assault and battery. In other words, if the defendant unlawfully assaulted Miles hé was guilty, no ■matter what the subsequent outcome of the affray might have ■been. His wrong was not righted by the subsequent conduct of Miles. Nothing which Miles could do could atone to the ■state for the infraction of its law by the defendant.^ Turning to the 17th instruction given by the court, and it reads: “If defendant began the affray, and struck Miles the first blow, then he should be convicted of assault and battery; or, if he did not commence the affray, but willingly participated in a fist fight with Miles, without any endeavor to avoid him, then he is guilty of assault and battery; but if he'acted throughout only in a self-defense which was necessary, or ap parently necessary, to avoid personal' injury, then he should be acquitted.” This instruction was right, and appropriate to the facts as they appeared in the testimony. If two parties meet and have an affray, the party that commences the assault is guilty; and, irrespective of the question as to who first •commences the affray, if thereafter the two willingly engage in a fist fight, and when no apparent necessity of self-defense intervenes, then each is guilty of an assault and battery: and this case, in one of its aspects, presents just this question. The parties met on horseback; there.was some difficulty between them while on horseback, and.at least according to some ■of the testimony, without any thought or purpose of self-defense, each jumped off his horse, and letting the animals go, they engaged in a fist fight. It is no defense to Newland that Miles was a willing participant in the fight, and it would be no defense to Miles if he were being prosecuted for assault and battery that Newland was also willing for the fight. Take a strong illustration: Supposing these two parties had met and blows had passed between them, and then, stopping blows, they had agreed to fight a duel with pistols, and measuring off the distance between them, each had taken a pistol and fired at the other; now whoever might have been the aggressor in the commencement of the quarrel, the willing participation of each in the duel, and the firing by each of his pistol with intent to kill, would make each guilty of an assault with intent to kill. So here, whichever may have been the aggressor when both were on horseback, the moment they jumped off and willingly engaged in a fist fight, each became guilty of an assault and battery. The instruction was right, and was appropriate to the case. In conclusion, and upon a review of all the testimony, we think the cardinal mistake of counsel for appellant lies in their effort to show that, considering all the circumstances of the case, Miles was the most of a- wrong-doer. We think it probable that both parties were in the wrong, that each was guilty of an assault and battery, and it would be no more than-justice if -both were punished. As the case now stands, all we have to inquire is, as to the' propriety of the proceedings against Newland. We have examined the testimony and the instructions-with care. We-see no error which seems to us sufficient to justify a reversal of the judgment; and we think upon the testimony the defendant was properly convicted of assault and battery, and therefore the judgment must be affirmed. All the Justices concurring.	[ -16, 126, -39, -97, -120, 96, -86, -8, 66, -93, 116, 83, -51, -38, 21, 113, 98, 13, 85, 105, -60, -78, 23, -125, -78, -13, -77, -51, -79, 73, -74, -9, 15, 16, 10, 85, -62, 34, 1, 92, -114, 12, -85, -20, -39, 64, 60, 107, 54, 78, 33, 15, -29, 46, 85, -13, 41, 44, 75, 41, -112, 113, -110, 7, 77, 2, -109, 102, -104, 3, 88, 62, -111, 49, 0, -8, 122, -90, -122, 84, 9, -119, 12, -90, 102, 33, 85, -115, 40, -56, 47, 94, -119, -89, -80, 24, 50, 34, -106, -99, 82, 80, 15, -4, -27, 13, 89, 112, -124, -49, -108, -93, -49, 60, -112, -60, -29, 63, 16, 117, -59, -18, 93, 68, 112, -101, -121, -10 ]
The opinion of the court was delivered by Valentine, J.: This was a criminal prosecution for murder in the first degree. The defendant was convicted and sentenced, and he now appeals to this court. Only two questions are presented to this court: First, it is claimed that the information upon which the defendant was prosecuted does not state facts sufficient to constitute the offense of murder in the first degree; second, it is claimed that two incompetent jurors, along with ten other jurors, were allowed to hear and determine the case. With reference to the first question we would say that, under the decisions of this court, we think the information was sufficient; and especially so, as the question of . . ’ . . , _ its insufficiency was not raised until after verdict. It described the killing, and clearly alleged that it was done willfully, unlawfully, feloniously, and with deliberation, premeditation, and malice aforethought. We do not think that counsel for defendant relies with any degree of confidence upon this point; and hence, without further consideration thereof, we shall pass to the next question. The next question is seemingly more difficult, for there are authorities which seem to sustain the position for which counsel for the defendant contend, though we think the weight of authority is on the other side. Two of the jurors who found and rendered the verdict in this case had, during the war of the rebellion, voluntarily borne arms against the government v of the United States, and their consequent disabilities have never been removed. It is clear, therefore, that these two jurors are not electors of the state of Kansas; and for that reason, inferentially, they are not proper persons to serve as jurors. There is no provision, however, of either the constitution or the statutes, that in terms makes such persons incompetent to serve as jurors; but the statutes with reference to the qualifications of jurors would seem, inferentially, to authorize only electors to serve in such capacity. These two persons were competent in every respect to serve as jurors in this case, except that they were not electors of the state of Kansas. We would think that if any objection had been made to these two persons serving as jurors at any time before the jury were impanneled and sworn, that the objection should have been sustained, and these two j urors discharged; but no such objection was made. It would seem that neither of the parties nor their counsel had any knowledge before the trial that these two persons were not electors, or that they were not competent to serve as jurors. And indeed it would seem that neither the parties nor their counsel made any effort to ascertain these facts. From anything appearing in the case up to the time when the defendant made his motion for a new trial, and in arrest of judgment, it would seem that both parties and their counsel were entirely willing that these two persons should serve as jurors, whether they were legally competent to serve or not. After the trial was completed, and after the defendant was found guilty, as charged in the information, he made a motion for a new trial, and also a motion in arrest of judgment, upon the ground, among others, that these two jurors were not competent to actas jurors; and upon these two motions the question of their competency was for the first time raised in the trial court. We think the question was raised too late. ,. We think the defendant, by waiting until after the verdict was rendered before he attempted to raise the question, waived all right which he otherwise would have had to raise any such question. The mere fact of not being an elector is not an absolute and positive disqualifica tion of a person to serve as a juror. It is simply a ground for challenging him before the jury are impanneled and sworn; and if the parties at the time of impanneling the jury choose to waive their right to challenge for that cause, they cannot complain afterward; and where the parties, as in this case,make no effort to ascertain whether a juror is an elector or not, and if it should afterward be ascertained, as in this case, that he was not an elector, the parties will not be allowed to say that they had no knowledge that he was not an elector. By failing to attempt to ascertain the fact before the jury are impanneled, they waive all right to make any complaint upon that ground afterward. That parties may waive the incompetency of jurors has been settledby numerous authorities, and in every class of eases. It has been so settled in civil cases, where the parties knew at the time of the impanneling of the jury that the juror was incompetent. (Glover v. Woolsey, Dudley’s Rep. 85; Pittsfield v. Barnstead, 40 N. H. 478; Selleck v. Sugar Hollow Turnpike Co., 13 Conn. 453, 459; 20 Conn. 89; 22 Conn. 193 to 195; 23 Conn. 117; Wallace v. Columbia, 48 Me. 436; Fox v. Hazelton, 27 Mass. 275.) It has also been held that the right to object because of the incompet.ency of a juror, may be waived in civil cases, even where the parties do not know of such incompetency until after the. trial. (Amherst v. Hadley, 18 Mass. 38; Jeffries v. Randall, 14 Mass. 205; Daniel v. Guy, 23 Ark. 51.) And in criminal cases, even in prosecutions for murder, where the facts are known, an objection to the competency of a juror comes too late, if it is made after verdict. See the following capital cases: The People v. Coffman, 24 Cal. 230; Lisle v. The State, 6 Mo. 426; Keener v. The State, 18 Ga. 194. It has also been held in criminal cases, where the parties did not know the facts, that an objection to the competency of a juror must be. made before the verdict is rendered, or it will be too late. (The King v. Sutton, 8 B. & C., 417; Gillespie v. The State, 8 Yerg. 507.) And the same rule seems to apply in capital cases as in others. (Chase v. The People, 40 Ill. 352; Costly v. The State, 19 Ga. 614, 628; State v. Bunger, 14 La. An. 465; State v. Patrick, 3 Jones [N. C.] L. 443; State v. Bone, 7 Jones [N.C.] L. 121.) See also in this connection, Montgomery v. The State, 3 Kas. 263. This was a criminal case, though not a capital case. The principal authorities upon the other side are as follows: The State v. Babcock, 1 Conn. 401; Guykowski v. The People, 2 Ill. (1 Scam.) 476; Schumaker v. The State, 5 Wis. 324; The State v. Groome, 10 Iowa, 309; Rice v. The State, 16 Ind. 299; Hill v. The People, 16 Mich. 351. The case of The State v. Babcock, 1 Conn. 401, has been virtually overruled by the later Connecticut decisions above referred to. -And the case of Guykowski v. The People, 2 Ill. (1 Scam.) 476, has been actually overruled by the later Illinois decision above referred to. In the ease of The King v* Sutton, 8 B. &. C. 417, it is held that “alienage is a ground of challenge to a juror, and if the party has an opportunity of making his challenge, and neglects it, he cannot afterward make the objection.” In the case of Chase v. The People, 40 Ill. 352, it is held that “alienage in a juror is not a positive disqualification — it simply enables him to excuse himself if he chooses to claim the exemption, or it is a ground of challenge, and nothing more.” In the case of Costly v. The State, 19 Ga. 614, it is held that “the non-residence of a juror, being but a cause of challenge propter defectum, can and consequently must be made by the prisoner before the juror is sworn, and it makes no difference whether such want of qualification was known or unknown at the time the juror was sworn.” In the ease of The State v. Bunger, 14 La. An. 465, it is held that “where a juror can be challenged for cause, the right must be exercised before the juror is sworn; and a verdict cures the defect.” In the case of The State v. Patrick, 3 Jones (N. C.) L. 423, it is held that “it is too late after a juror has been taken and accepted by the prisoner, and has served on the trial, to except to him for incompetency.” In the case of The State v. Bone, 7 Jones (N. C.) L. 121, it is held that “the prisoner has no right to postpone showing cause of challenge to a juror and have him stand aside until the panel is finished.” The last five cases cited are all capital cases, and the case cited from Barnewall & Cresswell was an indictment for a conspiracy. In the case of Gillespie v. The State, 8 Yerg. (Tenn.) 507, it is held that “ it is no ground for a new trial in a criminal case, that one of the jurors trying the issue was one of the grand jury who found the bill of indictment. The objection to the juror must be made by challenge before he is sworn, or it is waived.” As before stated, the fact that said two jurors were not electors was not a positive and absolute disqualification to them to serve as jurors, but only a ground for challenge. If it were a positive disqualification, then the trial would have been a nullity — precisely the same as though it had been had before ten men only; and if the verdict had been in favor of the defendant, the state might have treated the verdict as no verdict, and put the defendant upon trial again for the offense charged against him. We suppose that no one will claim that this could be done. The fact that said two jurors were not electors could not have prejudiced any of the substantial rights of the defendant. Undoubtedly they tried the case as fairly and impartially as though they had been electors. If the disqualification of the jurors had been such as would have predjudiced any of the substantial rights of the defendant, it might be that the defendant would have a right to a new trial because of such disqualification; but where the disqualification does not prejudice any substantial rights, we do not think that any new trial should be granted because of the disqualification. The defendant, by failing to object to the jurors before they were sworn, and by failing to attempt to ascertain whether they were electors or not, waived the disqualification, and rendered the jurors competent to hear and determine the case. The judgment of the court below will be affirmed. All the Justices concurring.	[ -80, -22, -27, -98, 40, 96, 42, 24, 0, -77, 38, 115, 105, -53, 1, 121, -6, 61, 85, 121, -64, -105, 55, -63, -78, -45, -37, -43, -73, 72, -4, -11, 8, 48, 74, -43, -26, 74, 69, 84, -114, 7, 40, -59, -46, 16, 52, 118, 86, 3, -15, -114, -13, 42, 31, -45, 73, 40, 75, 61, 81, -79, -114, -123, -52, 20, 51, 38, -100, 3, 104, 38, 88, 53, 65, -8, 91, -122, -126, -44, 15, -119, -19, 102, 99, 49, 29, -55, 104, -127, 62, 119, -99, -89, -112, 65, 67, 12, -106, -35, 124, 54, 47, 122, -25, 5, 29, 124, 9, -125, -66, -77, 79, 54, -102, -14, -21, -127, -112, 113, -52, -14, 95, 65, 18, 27, -113, -106 ]
Per Curiam: This case comes to.us upon what purports to be a certified transcript of the pleadings, journal entries of tbe judgment, and the proceedings at the time and subsequent to the trial. The errors alleged are errors of law occurring at the trial, and concern the reception of incompetent evidence, the giving of erroneous and misleading instructions, the refusal of instructions declaring the law pertinent to the case, the misconduct of the defendant in error, and the overruling of a motion to set aside the findings of the jury. The record is in such a condition that we are unable to consider and pass upon these various questions. On page 24 of the transcript it appears that the trial was commenced April 1, 1881, and upon page 50 of the transcript the statement is made that the court then adjourned sine die, presumably on April 1, 1881, and the bills of exceptions, Nos. 1 and 2, were filed afterward, to wit, on the 30th day of April, 1881, and follow the record of the adjournment of the court. The alleged errors based upon these various bills of exceptions filed after the adjournment of the court sine die have no foundation for examination, as the bills of exceptions were filed out of time, and are no part of the record. (Brown v. Rhodes, 1 Kas. 359; Lownsberry v. Rakestraw, 14 Kas. 151; The State v. Bohan, 19 Kas. 28.) The instructions are not before us as permitted by §276 of the civil code. (McArthur v. Mitchell, 7 Kas. 173.) In this condition of the record, there is no question submitted to us by counsel for plaintiffs in error which we can decide, and upon the record as presented to us the judgment of the district court must be affirmed.	[ -80, 108, -40, -49, -86, -31, 32, -118, 65, -127, -5, 115, -19, -62, 20, 109, -45, 45, 117, 107, -52, -93, 22, 67, -14, -77, -46, -43, 53, 109, -4, -46, 76, 32, -54, 117, 70, 66, -59, 20, -114, -115, -87, -20, -47, 32, 52, 121, 104, 15, 113, -2, -29, 46, 23, 71, 105, 56, -53, 123, 80, -15, -113, 13, 109, 0, -77, -92, -98, 70, -56, 46, -112, 53, 3, -8, 48, -90, -122, 84, 111, -71, 12, 102, 98, 1, 77, -17, -72, -104, 39, 62, -99, -90, -110, 9, -55, 77, -74, -99, 117, 80, 38, -6, -19, -43, 25, 100, 6, -113, 80, -109, -113, 126, -98, 11, -29, -125, 16, 113, -115, -26, 92, 70, 49, -101, -50, -10 ]
Per Curiam: It is said by this court in Robinson v. Melvin, 14 Kas. 487, in reviewing an order of a district court discharging an attachment, that the judgment of the district court, even upon written testimony, is entitled to consideration, and in many doubtful cases may sometimes turn the balance in favor of affirmance. These remarks have special fitness in this case. There.seems to be sufficient evidence in the record to sustain the order of the district court, and therefore it will be affirmed.	[ -78, 110, 124, 92, 10, -31, 48, -110, -63, -93, 116, 83, 45, -118, 20, 127, 82, 63, 117, 99, -41, -73, 102, -63, -10, -45, -46, -41, -77, 125, -26, -98, 76, 112, -22, -43, 102, -56, -121, 94, -50, 39, -119, 101, -39, -32, 52, 55, 82, 71, 117, 95, -31, 42, 26, -61, 105, 60, -22, 105, 80, -47, -98, 13, 93, 22, -77, 36, -100, 7, -40, 46, -128, 49, 0, -4, 112, -90, -125, 52, 105, -69, 40, 84, 98, 1, -88, -17, -72, -104, 7, -2, 15, -90, -102, 121, -119, 1, -106, -3, 109, 114, 6, 110, -45, 69, 94, 108, 14, -113, -92, -77, -113, 121, -104, -29, -21, 19, 17, 117, -59, -78, 84, 66, 17, 27, -58, -78 ]
The opinion of the court was delivered by Brewer, J.: This was a proceeding under §525 of the code, by which a controversy upon an agreed statement of facts was submitted to the court for trial. Upon such agreed statement, the district court rendered judgment for the defendant, and the plaintiff brings error to this court. The facts of the case as agreed upon are these: Plaintiff, in November, 1878, was elected county superintendent of Neosho county for a term of two years, commencing January, 1879. He qualified, and discharged the duties of the office for the two years thence ensuing, and for those services was paid at the rate of $600 a year. According to the census taken by the township trustees on March 1, 1880, the population of Neosho county was 14,095, and the population of said county prior to March, 1880, never exceeded said number. According to the United States census, taken on the 1st of June, 1880, the county contained a population of 15,125, and from that time to the end of the year the county contained over 15,000 inhabitants, according to said United States census. Now by § 8 of chapter 92, Compiled Laws of 1879, in counties of 10,000 and less than 15,000 inhabitants, county superintendents are entitled to a salary of $600. In counties of 15,000 and less than 20,000 inhabitants, to a salary of $800. Upon these facts, plaintiff claims that from June 1st, 1880, to the close of the year, he was entitled to a salary at the rate of $800 a year; and whether he was so entitled or not, is the single question presented in this case. This proceeding under § 525 is a very satisfactory way of presenting a case to any court. By it all controversy as to matters of fact is eliminated, and a pure and simple question of law presented for decision. In this case counsel have very clearly and precisely stated the facts and' in their brief presented a question for the decision of this court. It is very satisfactory to us to have this question of law thus distinctly and clearly presented. The argument of counsel for plaintiff is substantially this, that the salary of the county superintendent is graduated by population; that while as to other officers whose salaries are thus graduated a certain evidence or test of population is by statute prescribed, (as to county treasurer, see § 8, p. 443, Comp. Laws 1879; as to the county attorney, § 139, p. 298, Comp. Laws 1879; and as to county '"clerk,'§ 6, p. 441, Comp. Laws 1879,) that as to county superintendents no such test or evidence is prescribed; that therefore the salary is graduated according to the very fact of population; that the U. S. census is competent and trustworthy evidence of population; that when by that it appears that the population of any county is in excess of 15,000, the .salary thenceforward of the county superintendent is $800. Notwithstanding the very clear and forcible argument of plaintiff, we are compelled to think that the ruling of the district court is correct. We are not disposed to question the proposition of counsel that in the absence of a specific statute prescribing other evidence, the returns of the U. S. census are competent and at least prima fade evidence of the amount of population, where the question of population is one of fact, to be determined as other matters of fact by a trial court. „ Nevertheless, the ruling of the district court is right, and for two reasons. It is generally true that rules prescribed by state statutes are to be interpreted' and enforced in the light of information derived from state proceedings. The state within the limits of its authority is a complete and independent sovereign; its statutes are to be interpreted by and its rules are referable to proceedings had under its authority and prescribed by its laws. So when it refers to a question of population, in the absence of language importing other reference, the proper understanding is that it refers to population as determined and evidenced by state proceedings. In many cases, as shown by citations heretofore made, particular. reference is made to certain special proceedings prescribed by statute. Where none of those special proceedings are made-controlling by statute, and in fact no particular matter is referred to as absolutely controlling, then of course the matter-remains open for examination as a matter of fáct, but burdened with the general proposition that every proceeding instituted under state authority for determining the matter of population is prima faoie evidence, and controlling above any evidence of population furnished by a different government. Now upon the agreed statement of facts it is admitted' that the last census taken by state authority, in March, 1880r showed a population less than 15,000. It is admitted as a matter of fact, that up to such date the population was less than 15,000; and the only claim is that by the U. S. census of June, 1880, and according to such census from that time on through the balance of the year the population was over 15,000. It is nowhere conceded that as a matter of fact the population at any time during 1880 was over 15,000, but only that by the U. S. census it appeared to be over 15,000'. Hence under these admissions we think that the proceedings under state authority control, and that the population as determined by the state census must control as to the salary to be paid under state laws. The other reason is this: It is not pretended that the population during the entire year 1880 was over 15,000. It is expressly conceded that up to March 1st, 1880, at least,, the population was less than 15,000, and the only claim is that from June 1st, thenceforward to the end of the year, the population was over 15,000. Further, it is conceded that the only evidence of population furnished by state authority is that furnished by the census of March 1st, showing a population less than 15,000. Now the salary prescribed by the statute above referred to is a salary per annum. This means that the salary for the year is graduated by the population of the year. It does not mean that the salary varies from month to month or from day to day, with any corresponding increase or decrease of population, but it is a salary which once fixed remains fixed for the year. It is conceded that up to March 1st, 1880, and by the only state census taken during that year, and that in March, 1880, the population was less than 15,000. This we think controls the salary for the year, and that no matter though it should be shown by absolute and incontrovertible testimony, that thereafter during the year the population ran to a number in excess of 15,000, the salary of the county superintendent would not be changed thereby. The salary is not to be determined by the highest population during the year, nor necessarily by the lowest. It is. enough, when the statute prescribes the salary, and the only census made under state authority determines the population, that that census unimpeached determines the salary for the year, and no evidence of a subsequent increase or decrease will affect the question of salary thus determined. Entertaining these views, we think the ruling of the district court is correct, and its-judgment must therefore1 be affirmed. All the Justices concurring.	[ -80, -18, -28, -52, -118, 96, -94, -102, 89, -79, -73, 87, -19, 89, 28, 121, 50, 45, 85, 106, 70, -78, 23, -53, -108, -9, -5, -51, -77, 93, -12, -59, 77, 48, 10, -107, 70, -30, -59, -48, -50, -124, -87, -24, -47, -64, 60, 105, 114, 78, 53, -82, 51, 46, 24, -61, 77, 44, -39, -87, 48, -13, -82, -107, 109, 4, -109, 32, -118, -121, -56, 46, -104, 49, -124, -8, 115, -90, -58, 117, 103, -71, 8, 58, 102, 97, 60, -49, -96, -119, 14, -2, -115, 103, -105, 24, -22, 13, -106, -98, 116, 80, 7, 124, -29, 5, 92, 108, 14, -114, -28, -77, 77, 100, -102, 11, -17, -27, 16, 81, -115, 34, 93, 71, 58, 27, -66, -72 ]
The opinion of the court was delivered by Valentine, J.: This is the second time that this case has-been to this court. (Eckert v. McBee, 25 Kas. 705.) When the case .was here before, the judgment of the court below was affirmed, principally upon the ground of the insufficiency of the-record brought to this court; and we think the judg.ment of the-court below must again be-affirmed, on the ground that there is no error appearing in the record as the same is now presented to the court. Certainly no portion of the record specifically referred to in the brief of counsel for plaintiff in error, as required by the second paragraph of the rules of the supreme court, shows or tends to show any error committed by the-court below. The action was originally brought by McBee against Eckert,, under § 595 of the civil code, for the recovery of certain real estate. The facts of the case, so far as it is necessary to state them, appear to be substantially as follows: Originally, Eckert owned the property in controversy. He mortgaged it to John McBee. He failed to pay the debt secured by the mortgáge, and McBee foreclosed the mortgage. • The property was ordered to be sold; was sold, and a sheriff’s deed was executed for the property to John McBee. Afterward Eckert and wife conveyed the property, by deed of general warranty, to John McBee; and at the same time McBee leased the property to Eckert for three months, and agreed to sell the same to Eckert upon certain conditions, making time of the essence of the contract. These conditions were never complied with or fulfilled. Afterward John McBee and wife conveyed the property to John A. Oliphant; and afterward Oliphant and wife conveyed the property to Hannah P. McBee, the plaintiff below, and defendant in error, and the wife of-John McBee; and afterward Hannah P. McBee brought this action in ejectment, against Eckert as aforesaid. The judgment of the court below was in favor of the plaintiff, and against the defendant; and the defendant, as plaintiff in error, now brings the case to this court. The main question presented to this court is, whether the deed from Eckert and wife to John McBee and the agreement of John McBee to] reconvey the property to Eckert, constitute a mortgage. We must answer this question in the negative. The agreement of McBee to reconvey the property to Eckert was purely a conditional sale of the property, and the whole transaction had none of the elements of a mortgage. The debt from Eckert to McBee had been extinguished a long time before, and there was no debt and no duty of any kind owing from Eckert to McBee for which the deed and agreement could be a security; and a mortgage cannot exist unless it is created for the purpose of securing something. (McNamara v. Culver, 22 Kas. 661.) In 1 Jones on Mortgages, § 265, it is said: “A debt, either preexisting or created at the time, is an essential requisite of a mortgage.” In 4 Kent’s Commentaries, page 144, note d, it is said: “The test of the distinction is this: If the relation of debtor and creditor remains, and a debt still subsists, it is a mortgage; but if the debt be extinguished by the agreement of the parties, or the money advanced is not by way of loan, and the grantor has the privilege of refunding, if he pleases, by a given time, and thereby entitle himself to a reconveyance, it is a conditional sale.” In the case of Glover v. Payn, 9 Wend. 520, it is said: “It is well settled that an agreement to reconvey, either with or without an advance in price, will not turn an absolute conveyance into a mortgage.” In the case of Edrington v. Harper, 3 J. J. Mar. (Ky.) 355, it is said: “ If a bona fide purchaser of property at sheriff’s sale agree after his purchase that the former owner may repurchase the property within a given time, this, if there be ■no other fact to control the construction, will be considered a conditional sale, and not a mortgage.” And it is universally held that the rights of the parties must be reciprocal; that, in order that the transaction may be considered as a mortgage, it is necessary that the party agreeing to reconvey shall have the right to insist upon the repayment of the supposed debt, or the performance of the supposed obligation, for which the original conveyance is supposed to be a mortgage. (1 Jones on Mortgages, § 264.) In thé present case there was no debt; nor was Eckert under any obligation to McBee to pay any money or to perform any other act, except to pay the rent for the leased premises. All that the agreement, aside from the lease, contemplated was, that Eckert should have the mere privilege of purchasing the property at a stipulated price, if he so chose; and McBee had no power to compel him to purchase it, or to compel him to perform any other act, or to sue him for the recovery of any debt. The judgment of the court below will be affirmed. All the Justices concurring.	[ -80, 110, -39, -66, 108, 96, 40, -104, 66, -128, -74, 123, 45, -63, 20, 107, 114, 125, 84, 42, -58, -78, 6, -32, -14, -14, -45, 84, -79, 108, -28, 87, 76, 36, -62, -35, 102, -22, -63, 84, -54, -113, 41, 108, 89, 82, 52, 59, 80, 75, 113, -82, -29, 46, 25, -50, -24, 40, -53, 61, 81, -71, 30, -115, 93, 7, -77, 119, -2, 7, -56, 42, -110, 53, 64, -55, 115, -74, -106, 84, 77, -101, 8, 38, 98, 1, 73, -17, -16, -104, 38, 127, -115, -90, -79, 88, 43, 68, -74, -99, 109, 16, -91, -2, -25, -99, 28, 108, 8, -113, -112, -77, -81, 120, -104, 66, -9, 47, 49, 80, -49, -88, 93, -26, 18, -109, -98, -4 ]
The .opinion of the court was delivered by Horton, C. J.: This was an action in the nature of ejectment, to recover the possession of certain real estate situate in Morris county. The second trial was had at the April term, 1881, by the court, a jury being waived by the parties. After hearing the evidence, the court made a general finding in favor of Woolston (plaintiff below), and rendered judgment in his favor, to which judgment Baker jtnd Watkins (defendants below) excepted, and bring the case here. The following facts seem to be conceded: On the 15th day of March, 1865, the real estate was patented by the United States to Alexander C. Stewart. On the 4th day of January, 1872, Stewart and wife conveyed the same by warranty deed to Seth M. Hays, who died prior to December 19, 1874, seized of the real estate, leaving a minor child, Kittie Parker Robbins Hays, as sole legatee, and appointing one John B. Hamilton executor of his will and guardian of said minor child. On December 19, 1874, John B. Hamilton, as said executor and guardian, conveyed the real estate, under the order and direction of the probate court of Morris county, to W. F. Shamleffer, for the sum of $2,500. On October 21, 1872, the First National bank of Council Grove had obtained a judgment in the district court of Morris county against the firm of Hammond & Burkhart as principals, and W. F. Shamleffer as surety, upon an obligation due the bank for $399.55, and costs. On January 7, 1876, transcripts of several judgments previously rendered before justices of the peace against W. F. Shamleffer, and Shamleffer, Armstrong & Co. (of which firm W. F. Shamleffer was a member), amounting in the aggregate to about $1,200, were properly filed in the office of the clerk of the district court of Morris county. These judgments at the date of the filing of the transcripts were assigned to Simcock as president of the First National bank at Council Grove. An order of sale was issued on the judgment rendered in favor of the First National bank against Hammond & Burkhart, and the other judgments referred to and the real estate in question were appraised and sold to the said First National bank for $1,410, and a sheriff’s deed made the purchaser on May 5, 1876. On November 20,1877, the bank made to said Woolston a deed for the land in controversy, and he claims title thereunder. To defeat and void this claim, evidence was introduced on the part of the plaintiffs in error (defendants below) that Watkins had title to the land in controversy under a commissioners’s deed of the date of April 15,1880, issued in accordance with a decree of the United States circuit court for the district of Kansas, made upon the foreclosure of a mortgage upon the land, executed February 1, 1875, by W. F. Shamleffer and wife to William Ottinger, to secure the payment of $1,000; that Shamleffer had arranged the judgment of the bank against the firm of Hammond & Burkhart prior to the execution of this mortgage, but allowed it to remain unsatisfied upon the records for the purpose of allowing the bank to collect it for him from Hammond; that there was an understanding between the bank, Shamleffer and Ottinger, at the time of the execution of the mortgage, on February 1, 1875, that such mortgage was a prior lien to any interest, lien or claim held by the bank on the real estate; that in the latter part of 1875 or in the early part of 1876, Shamleffer conveyed to J. W. Simcock, in trust for the bank, the judgment against Plammond & Burkhart, together with everything he had. As to the other evidence there was a conflict of testimony. On the part of the defendants below, it is claimed that the testimony shows that when Woolston purchased from the bank, he had actual notice that the Ottinger mortgage was considered by the bank as a prior and superior lien to its interest in the land, and that he cannot claim to be an innocent purchaser for value without notice, but is subject to the same equities as the bank would have been had it continued the owner, especially in view of the fact that the deed of conveyance, while a general warranty, had added therein: “except for taxes, judgments and mortgages of record which are in any manner prior liens thereto.” Further, it is claimed that Woolston was a stockholder in the bank, and therefore bound to take notice of the bank’s agreement that the Ottinger mortgage was a prior and superior lien, and was therefore precluded and estopped from setting up want of notice of the existing equities of the mortgagee, or of the purchaser deriving title under the foreclosure. On the part of plaintiff below, evidence was offered tending to show that he was an innocent purchaser for value without notice; that the Ottinger mortgage was a subsequent lien or claim to the judgments held by the bank; that Woolston had the records examined and found the judgment prior and paramount to the mortgage, and so bought the land; that Woolston merely held stock in the bank as collateral security for the repayment of a loan from Huffaker, and was not a member of the corporation, and though present at some of the meetings of stockholders, did not participate in the proceedings, and was not recognized as a member or stockholder in the bank. Upon the question whether or not Woolston was an innocent purchaser for value without actual notice, it is sufficient SW that this was a question of fact to be disposed of by the trial judge. As no special finding of facts was asked by either party, the general finding of the court finds all the issuable facts against defend ants below; and as to all matters where the evidence is conflicting, we are concluded by the finding. Counsel suggest that Woolston is not an innocent'purchaser, because the circumstances of the transaction were such as to put him on inquiry as to the actual facts. Now the evidence shows that he did make inquiry by an examination of the records, and obtained a certified abstract, and submitted the same to able counsel; therefore we do not perceive that he was negligent, so that any secret or concealed equities should defeat his title. The claim that Woolston was a stockholder in the bank, and therefore bound by the knowledge of the officers of the bank, is untenable, as the court belów, as we have a right to assume, relied upon the evidence offered by the defendant in error, that the grantee of the bank was not a member or stockholder therein, but merely the holder of certain bank stock from Huffaker as collateral to secure the repayment of a loan. Where a person is merely in possession of bank stock as collateral security, and does not participate in the meetings of the stockholders, and is not recognized by the stockholders as a member, he 0 J \ 7 1S nofc su°k a Par^ °* *be corporation as to be bound to have knowledge of the facts in possession of the corporation, or its officers, 1 as officials of such corporation. The unfortunate part of the transaction seems to be, that the mortgagee relied upon the- verbal promise of a bank official to protect his interest as far as he could, made to him at the time the mortgage was taken; and notwithstanding the records showed the judgment a prior lien, he accepted his mortgage, and thereafter permitted the records to continue to show that the bank had a prior and paramount lien, which ultimately ripened into a title and came by purchase to Woolston. Upon the whole record, we find no material error, and therefore are compelled to affirm the judgment of the district court. All the Justices concurring.	[ -12, 106, -48, -100, 42, -32, 42, -40, 72, -96, -92, 119, 107, 82, 17, 45, -14, 109, -43, 107, -60, -77, 71, -85, -112, -77, -45, -43, -80, 89, -10, -41, 13, 32, -54, 29, -60, 64, -57, 84, -114, 13, 41, 100, -33, 64, 52, 59, 86, 75, 17, -82, -13, 46, 29, 75, 105, 44, 75, -71, 80, -8, -118, -59, 125, 23, -109, 36, -40, 3, 104, 14, -104, 49, 0, -24, 123, -92, -122, 84, 1, -119, 13, 36, 98, 19, 69, -51, -32, -104, 15, -9, -115, -25, -30, 88, 82, 72, -66, -35, 113, 16, 14, -4, -22, 4, 25, 108, 1, -114, -106, -111, 15, 56, -102, 1, -13, 11, 48, 65, -49, 32, 93, -26, 50, 27, -114, -99 ]
The opinion of the court was delivered by VALENTiNE, J.: The sole question involved in this case is one with reference to the proper construction and interpretation of the occupying-claimant law. (Comp. Laws of 1879, ch. 80, art. 25, §§ 601 — 613.) This question grows out of a controversy concerning the title and ownership of the north half of the northwest quarter of section five, township thirty-two, south, of range seven, east, in Cowley county, Kansas, which controversy has been pending in the courts for nearly ten years, and in which this court has already rendered two decisions. (Brake v. Ballou, 19 Kas. 397; Stephens v. Ballou, 25 Kas. 618.) By virtue of these two decisions it is now settled that the plaintiffs, Buck & Kellogg, are the owners of the land in controversy, and that Ballou is entitled to the benefit of the occupying-claimánt law — Brake, the original patentee, having conveyed the land to the plaintiffs, Buck & Kellogg. After the second decision was made by this court, the parties stipulated in the district court that the sheriff and clerk of the district court should immediately draw and summon a jury, as provided by §§ 603 and 605 of the oecupying-claimant law, to assess the value of the land, the value of the improvements, the value of the rents and profits, and the damages to the land, as provided by § 604 of the occupying-claimant law. The jury were drawn, impanneled, and sworn, and they assessed the value of the land, the improvements, etc., as follows: The value of the land, without improvements, $600; the value of the improvements alone, $1,032.75; the value of the rents and profits of the land from August 20, 1879, up to October 31,1881, $1; the damages to the land by waste, $20; and the net value of the improvements, after deducting the rents, profits and waste, $1,011.75.. The plaintiffs are not very well satisfied with the income awarded to them by the jury as the value of the rents and profits of their land, the same being only at the rate of 47 cents per year; and they are very much dissatisfied with the amount assessed by the jury as the value of the improvements made by the defendant. Their counsel say in their brief that the value of the improvements was assessed at an amount which is nearly double the actual value of the land and the improvements taken together. The plaintiffs, however, were satisfied with the valuation of their land as fixed by the jury, and the defendant was satisfied with the assessed value of his improvements; and therefore, with the adverse views which the parties respectively entertained and which they still entertain, concerning the proper construction and interpretation to be given to the occupying-claimant law, both parties concluded to let the assessments and valuations, as fixed by the jury, stand, and neither party made any objection thereto. Afterward, and on November 23, 1881, the assessments and valuations as fixed by the jury were approved by the district court, and thereupon the plaintiffs tendered their warranty deed conveying the-land to the defendant, and elected to take the value of the land, and requested the court to fix a time within which the defendant should make payment of such valuation, under § 610 of the occupying-claimant law. This the court refused, and on November 28, 1881, made an order refusing “to permit the said plaintiffs to elect to take the value of the said land as assessed and valued, by the said jury, and to fix the time within which said defendant shall pay said valuation.” And the court then rendered a judgment “that the defendant, George W. Ballou, do have and recover of the plaintiffs, Samuel A. Stephens, J. Jay Buck and L. B.^Kellogg, the sum of $1,011.75; and it is ordered by the court that no writ or process shall issue herein for the eviction of said [defendant, George W. Ballou, from the ‘land in controversy’ until this judgment shall be paid by the said plaintiffs.” To this order and judgment of the court below the plaintiffs duly excepted, and they now bring the case to this court for review. The plaintiffs in this court insist that there were two serious errors committed by the court below: First, in denying the plaintiffs their election to take the assessed value of the land, instead of the land itself; and second, in rendering a money judgment against the plaintiffs for the net assessed value of the improvements. Whether the court below erred or not, in these respects, depends entirely upon the construction that may be given to §§ 601, 604, 608, 609, 610 and 611 of the occupying-claimant law. These sections are as follows: Section 601, so far as it is necessary to quote it, provides that the occupying claimant — “ Shall not be evicted or thrown out of possession by any person or persons who shall set up and provean adverse and better title to said lands, until said occupying claimant, his, her or their heirs, shall be paid the full value of all lasting and valuable improvements made on said lands by such occupying claimant, or by the person or persons under whom he, she or they may hold the same, previous to receiving actual notice by the commencement of suit on such adverse claim by which eviction may be effected.” Section 604, so far as it is necessary to quote from it, provides that the jury drawn under the provision of such section, shall not only assess the value of the improvements, and of the rents and profits and damages, but “shall also assess the value of the land in question, at the time of rendering judgment as aforesaid, without the improvements made thereon.” And sections 608 to 611 read as follows: “Sec. 608. That if the jurors impanneled under the provisions of such act shall report a sum under the provisions of the same in favor of the occupying claimant or claimants, or the assessment of the valuation of the valuable and lasting improvements, deducting the damages to said land, as is provided in said act, the court shall render judgment in favor of the said occupying claimant or claimants for the sum or sums so assessed by the said jurors as aforesaid; and no writ or process for the eviction of the said claimant or claimants shall be issued until the said judgment shall be paid. “Sec. 609. If the successful claimant, his heirs, or the guardian of such heirs, they being minors, shall elect to pay, and do pay, to the occupying claimant, the sum so reported in his favor by the jurors, within such reasonable time as the court may have allowed for the payment thereof, then a writ of possession shall issue in favor of said successful claimant, his heirs, or the guardian of such heirs. “Sec. 610. If the successful claimant, his heirs, or the guardians of said heirs, they being minors, shall elect to receive the value without improvements so as aforesaid assessed, to be paid by the occupying claimant within such reasonable time as the court may allow, and shall tender a general warranty deed of the land in question, conveying such adverse or better title within said time allowed by the court for the payment of the money in this section mentioned, and the occupying claimant shall refuse or neglect to pay said money (the value of the land without the improvements) to the successful claimant, his heirs or their, guardians, within the time limited as aforesaid, then a writ of possession shall be issued in favor of said successful' claimant, his heirs or their .guardians. “Sec. 611. The occupying claimant or his heirs shall in no case be evicted from the possession of such land, unless, as is provided in the two preceding sections, where an application is made for the value of improvements under this law; and in all cases where the occupying claimant or claimants, or his ■or their heirs, shall have paid into the court the value of the lands in question, without improvements, within the time allowed by the court, (when an election has been made by the successful claimant or claimants, his or their heirs or guardians as aforesaid, to surrender any tpact of land under the provisions of this act,) such occupant or his heirs may, at any time after such payment shall have been made, file his, her or their petition in the court where such judgment of eviction was obtained, and obtain a decree for the title of such land, if thé same has not been previously conveyed to such occupant aforesaid.” The occupying-claimant law has been in force for a great many years in Kansas. In 1868 it was reenacted, and placed in the code of civil procedure; and the occupying-claimant law ,as then enacted still remains in -force, except that §§601 and 608 have been amended. These two sections were amended in 1873, and in amending them the following provisions {which we include within quotation marks.) which were contained in the original sections were nqt inserted in the sections as amended, to wit: “Sec. 601. The occupying claimant shall not be evicted or turned out of possession until he has been paid for his improvements, ‘ unless such occupying claimant shall refuse to pay the person so setting up and-proving an adverse and better title, the value of the land without the improvements made thereon as aforesaid, upon the demand of the successful ■claimant, or his heirs, as hereinafter provided.’” “Sec. 608. ‘The successful claimant or his heirs, they being minors, may at his or her or their election either demand of the occupying claimant the value of the land without improvements, so as aforesaid assessed, and tender a deed of the land in question to the occupying claimant; or he, she or they may pay the occupying claimant the sum so allowed by the jurors in his favor, within such reasonable time as the court shall allow.’” Sections 601 and 608, as they now stand, were passed in 1873, while the other sections of the o'ccupying-claimant law were passed in 1868; therefore'if any provision of either section 601 or 608 should be found to be irreconcilably in conflict with any provision contained in any one of the other sections of the occupying-claimant law, the provision contained in the later enactment would of course repeal, by implication, the conflicting provision found in the former enactment; but, as has often been said by this as well as other courts, “repeals by implication are never favored in law;” and this is preeminently true in Kansas, where the constitution of the state requires that “ no law shall be revive’d or amended unless the new act contain the entire act revived, or the section or sections amended.” (Const., art. 2, §16.) There is no claim that §§ 604, 609, 610 and 611 of the occupying-claimant law have been absolutely and entirely repealed, and of course they are not so repealed; for if the legislature had intended to wholly and absolutely repeal them, it would have done so in express terms, and not have left the question the subject of great and inextricable doubt. The only claim is, that these sections have been impliedly amended and modified, by having the following provisions annulled and destroyed, to wit, those which relate to the valuation of the land in controversy, separate from the improvements thereon; those relating to the plaintiff’s right to elect to take the value of the land instead of the land itself; those relating to the occupying claimant’s liability to forfeit everything, after the plaintiff has elected to take the valuation of the land, if the occupying claimant should then neglect or refuse to pay to the plaintiff such value within some reasonable time, to be fixed by the court; and those relating to the plaintiff’s right to a writ of possession or of restitution and eviction without paying for the improvements, after the defendant has forfeited all right to compensation for his improvements. In amending the occupying-claimant law, every section intended to be amended, by having some of its provisions stricken out or modified, or by having new provisions inserted, or by being amended in any. other manner, should (if the provisions of §16, article 2, of the constitution are followed) be reenacted completely, and the new act should contain every section complete which is thus amended. Now the act of 1873 does not contain §§604, 609, 610 or 611, or any portion thereof; and hence, in view of said provision of § 16, article 2, of the constitution, can we say that these sections, or any one of them, or any part thereof, has been amended, or in any respect modified or repealed? Can we say that their provisions are to be construed in any different manner from what they would be construed if the new act of 1873 had never been passed? In other words, can the legislature amend these sections or the sections of any statute in any other mode than that prescribed by the constitution?' It is only in'rare cases and reluctantly that we should hold that it can. But, as before intimated, we must hold, though cautiously, that statutes may in some cases be amended or modified or repealed even by implication, and without the new act containing the entire section or sections amended, or modified or repealed. But before we should hold that any section of the law has thus been amended or modified or repealed, we should be satisfied that such has-been so done, beyond all reasonable doubt. If the provisions of the old act and of the new can be reconciled by any possible mode of interpretation or construction, if the old act and the new can both be given force and effect, according to-their terms and under any circumstances, then it should never be held that one overturns and destroys the other, but both should be given full force and effect. Counsel for plaintiffs say that some of the new provisions are unconstitutional and void, and cite as authority therefor the following cases: McCoy v. Grandy, 3 Ohio St. 463; Childs v. Shower, 18 Iowa, 261; Nelson v. Allen, 1 Yerg. (Tenn.) 361. If counsel are correct in this; if in fact any of the provisions of §§ 601 and 608 are unconstitutional and void, then of course such unconstitutional provisions cannot have the force and effect to repeal, by implication or otherwise, any of the provisions of any former act. (In re Petty, 22 Kas. 489; State v. Hallock, 14 Nev. 202; Childs v. Shower, 18 Iowa, 262.) A void enactment can never have the force ancj effec(; f;0 repeal by implication any valid law which is supposed to be in conflict with the void enactment. With these preliminary remarks we shall now proceed to consider the question whether any of the provisions of §§ 601 and 608 are irreconcilably in conflict with any of the provisions of §§ 604, 609, 610 and 611, of the occupying-elaimant law, and whether the first-mentioned sections impliedly repeal the latter. We think there is a conflict in one or two particulars, and in one or two particulars only. We think that § 610 of the occupying-claimant law has been so modifie<l that the occupying-claimant never forfeits his right to his improvements, or else to compensation thereior, and that no writ oi possession or of restitution or eviction can ever be issued in favor of the successful claimant, or those holding under him, to dispossess the occupying claimant, until the occupying claimant has been paid the assessed value of his improvements. But we do not think that the owner’s right to elect to take the value of the land, instead of the land itself, ha's been overturned or destroyed by the subsequent act of 1873; but such right still remains in force, unchanged and unimpaired. Section 604 of the occupying-claimant law provides for assessing the value of the land itself without the improvements. This provision, of course, can have force and effect only upon condition that the plaintiff still has his right of election to take the value of the land, instead of the land itself; while §§ 609, 610 and 611 expressly recognize the plaintiff’s right to make such election, and indeed, § 610 expressly authorizes the same. This construction and interpretation of the several sections of the occupying-claimant law, we think, gives force and effect to all the sections of the law; and we think that no other construction would give force and effect to the entire law. With this interpretation of the law, when-a plaintiff in an ejectment action obtains a judgment for th.e recovery of the land, and the occupying claimant obtains a judgment that he is entitled to compensation for his improvements, then the plaintiff may elect which he will take — the land, or the value of the land. If he takes the land, he must pay the defendant for his improvements, and then he becomes entitled to the possession of the land, and a writ to evict the defendant, if the defendant does not voluntarily give him the possession without such writ. If, however, the plaintiff elects to take the value of the land, and tenders a deed to the defendant, then the land in law and equity becomes the property of the defendant, and all that the plaintiff is then entitled to is the value of the land without the improvements. In just what way he may recover that value, the statute, as it now stands, does not prescribe. Under the statute before it was amended in 1873, if the defendant did not pay the value of the land to the* plaintiff within a reasonable time — to be fixed by the court — the plaintiff might then have his writ of eviction to obtain possession of the land; but under the law as it now stands, he is not entitled to any such writ. Under the law as it now stands, the plaintiff would probably be entitled to commence an independent action to subject the land, with the improvements, to the payment of his claim, and to sell the land, with the improvements, for that purpose; for undoubtedly his claim is a lien, and a prior lien, upon the land. It is possible, however, that the plaintiff may also have some other remedy. It is not necessary, however, in this case to determine what the plaintiffs’ remedy, or their best remedy, is; for as the plaintiffs are represented by able counsel, their counsel will undoubtedly soon find a remedy after we have determined what their rights are. If it should be asked why the owner of the land, instead of the occupying claimant, should have the right of election, it may be answered that the owner did not make the improvements, nor request that they should be made, nor has he ever used them; and it cannot be said that he wants them. While the occupying claimant took possession of the land, claiming to own it, claiming to want it, and himself made the improvements thereon. If he did not want the land and the improvements, then his improvements were not made in good faith; and if not made in good faith, then he should not recover either the improvements or the value thereof. ■ It is, therefore, not unfair to him to give to him the land which his acts show that he very much desires, -together with his improvements, for the mere actual value of the land itself without the improvements ; but it would be wrong to force the plaintiff to take the improvements which he probably never wanted, and to force him against his will to pay the full value thereof. Therefore, in both law and equity, the owner of the land should have the right of election, in preference to the occupying claimant. Under the authorities above cited from Ohio, Iowa and Tennessee, the law would be unconstitutional if it gave the right of election to the occupying claimant. Besides, as we construe the law, it is now very favorable «to the occupying claimant. No writ of eviction can ever be issued against him, unless he is first paid the full value of all the improvements^made by him. And if the owner chooses to let him retain the land, he then gets the land with all his improvements by simply paying for the value of the land, without the improvements. We have construed the law as it now stands upon our statute book. Those portions of the law that were stricken out in 1873, do not now have any force or effect, and are valuable only as indications of what the legislature intended when it struck them out. Looking at those portions which the legislature struck out in 1873, we think there are at least, three reasons for so striking them out; first, it was intended by the legislature to so amend the law that the occupying claimant should never forfeit his right to compensation for his improvements; second, it was further intended by the legislature' that no writ of eviction should be issued, to evict the occupying claimant from the premises, until after he had been paid a full compensation for his improvements; third, for the purposes of giving the plaintiff an election to take the land with the improvéments, aud_ to pay for the improvements, or to take merely the value of the land, it was not necessary that those portions of §§ 601 and 608 of the occupying-claimant law which were stricken out should be retained, because ample provisions for such election were contained in §§ 609, 610 and 611 of the oecupying-claimant law, which were not repealed; and therefore the portions stricken out were useless for the purpose of giving the plaintiff such election. We think that that portion of the judgment of the court below which refused to permit .the plaintiffs to elect to take the value of the land instead of the land itself, and to fix a time within which the defendant should pay such valuation, was and is erroneous. The other portion of the judgment we hardly think is erroneous, for as we construe it, it simply intended to prevent any writ of eviction from issuing to evict the defendant from the premises, until the defendant has been paid full compensation for his improvements. It was not intended to be, and we do not think that, it is, any such judgment as can be enforced personally against the plaintiffs. If it were such a judgment, of course it would be erroneous; but we do not think that it is such a judgment. That portion of the judgment of the court below which refused to permit the plaintiffs to elect to take the value of the land without the improvements, and to fix a time within which the defendant should pay such valuation, will be reversed, and the cause remanded for further proceedings, in accordance with this opinion. All the Justices concurring.	[ -15, 78, -8, 31, -120, 96, 34, -102, 75, -95, -74, 83, 41, -37, 16, 113, -14, 61, -111, 122, -58, -73, 23, 99, -110, 115, -45, -51, -79, 76, -28, -42, 76, 32, 74, -99, -30, -32, 69, 92, -50, 6, -85, -56, -44, 64, 60, 107, 82, 74, 49, -86, -13, 45, 28, -45, 105, 62, -117, 41, 17, -7, -82, -123, 95, 22, 17, 2, -100, -123, -56, 46, -104, 53, 12, -20, 91, -90, -122, 116, 101, -87, 12, 102, 103, 49, 29, -17, 112, -104, 46, -38, -115, -25, -48, 0, 34, 12, -66, -99, 124, 0, -57, 126, -17, 29, 29, -4, 7, -53, -74, -77, 15, 58, -118, 3, -29, -81, -80, 113, -51, -94, 92, 69, 58, -101, -113, -112 ]
The opinion of the court was delivered by Horton, C. J.: This action was tried by the court below without the intervention of a jury, upon thfe following agreed statement of facts: “ 1st. That Mary A. Tinney and Truelove Tinney, on the first day of July, 1878, made and delivered to Howard M. Holden, their promissory note for $1,932,-secured by a mortgage on the south half of section two, township seven, range two, east, in Clay county, Kansas, as stated in this petition; that said mortgage was duly recorded ¡in the office of the register of deeds, Clay county, Kansas, on the 18th of July, 1878; and that thereafter, said note and mortgage were duly indorsed, signed, and delivered to said plaintiff, A. A. Tomlinson. “2d. That on the 20th day of March, 1879, the said A. A. Tomlinson commenced a suit iu the district court of Clay county, Kansas, against the said Mary A. Tinney and Truelove Tinney on the said note and mortgage, and on the 9th of May, 1879, recovered a judgment in said court against the said Mary A. and Truelove Tinney, on said note for $1,981.30, with interest from date of judgment, at ten per cent, per annum, and costs of suit, amounting to $48.05, and also a decree foreclosing said mortgage, and an order to sell the above-described lands and tenements to satisfy said judgment and costs, and execution for any balance. “3d. That pursuant to said judgment and decree, and on an order of sale issued by the clerk of said district court, the ■sheriff of said Clay county, after .causing said lands to be duly appraised and advertised, oh the 7th of July, 1879, said sheriff publicly offered said lands and tenements for sale to the highest bidder, according to law, and at said last-named date sold the same to A. A. Tomlinson, plaintiff, for the sum •of $1,400, that sum being the highest bid offered, and over two-thirds of the appraised valuation, which sale was afterward, September 17, 1879, duly confirmed by said district ■court of Clay county, and said sheriff ordered to make and deliver to said Tomlinson, the purchaser, a deed therefor, which deed was thereafter so made and delivered. “4th. That after the payment of costs in said foreclosure suit, and application of proceeds on the said judgment, there still remained due said plaintiff on said judgment the sum of $732.35, which has not been paid by said Mary A. Tinney, Truelove Tinney, or any one for- them; that after the sale of said lands and tenements aforesaid, the said A. A. Tomlinson caused an execution to issue against the said Mary A. and Truelove Tinney, directed to the sheriff of said Clay county, for the balance due on said judgment, which execution was returned by the sheriff, ‘No goods, chattels, lands or tenements’ upon which a levy could be made; that said Mary A. Tinney and Truelove Tinney are now, and have been ■since rendition of said judgment, insolvent, and not possessed of any property out of which the balance of said judgment could be made. “5th. In the month of April, 1879, the house situated on the mortgaged premises was sold by the said Mary A. and Truelove Tinney to one C. W. Lindner, and while being moved off the mortgaged land, and when on the land of the said defendant D. N. Thompson, adjoining the mortgaged lands of said Tinney, was purchased from said Lindner by the said defendant Thompson, in said month of April, Í879. “6. At the time of said purchases, both Lindner and Thompson had actual knowledge of the mortgage lien aforementioned on said lands and tenements, and that said house was removed off said mortgaged premises. “7th. Both Lindner and Thompson paid full value for said house. “8th. Said house, at the time it was moved off said mortgaged lands, was worth $400.” The district court rendered judgment for the defendant for costs, and the plaintiff brings the case here. We think that the judgment must be affirmed, because the action of the plaintiff is not maintainable. It appears from the record, that while Thompson had actual knowledge of the mortgage lien of the plaintiff on the lands of the Tinneys, he did not purchase the house in controversy until it had been removed from the. lands, and that he paid full value therefor. The judgment in the foreclosure action was not recovered until after the purchase; and at the time of the purchase it does not appear that Thompson had any knowledge of the insolvency of the Tinneys, or that plaintiff would be defeated in the recovery of all his claim by the removal of the house. It does not appear that Thompson acted fraudulently, or that he intended to injur’e the plaintiff or anyone else. We do not see that he was guilty of either moral or legal fraud, and therefore the case of Yates v. Joyce, 11 Johns. 136, is not applicable. While the decisions in Clark v. Reyburn, 1 Kas. 281, and Vanderslice v. Knapp, 20 Kas. 647, are based upon facts somewhat different from those disclosed in the record, the principles therein declared virtually control this case. We have examined Van Pelt v. McGraw, 4 N. Y. 110, and all the other cases, cited by counsel for plaintiff, and notwithstanding the views therein expressed, we think the rule here adopted the proper one. In Cooper v. Davis, 15 Conn. 556, it was held that where A. executed to B. a mortgage of certain real estate upon which there was a grist mill, and B. obtained against A. a decree of foreclosure and a judgment in ejectment for the possession, but before the expiration of the time limited for redemption, and before B. had taken possession under the judgment or otherwise, A. severed the stones from the mill and sold them to C., and B. having afterward found them, took possession of them as his own property, that C. was entitled to recover in an action of trover against B. for the mill-stones. See also Buckout v. Swift, 27 Cal. 433; King v. Smith, 2 Hare, 239; Pierce v. Goddard, 22 Pick. 559; Citizens’ Bank v. Knapp, 22 La. An. 117; Challis v. Stearns, 22 N. H. 312. In Vanderslice v. Knapp, supra, Mr. Justice Valentine, speaking for the court, says: “A mortgagor of real estate has the right to possession of the mortgaged property, and the right to sever and remove the timber, wood, sand* earth, stone, or anything else, therefrom, and sell the same, unless it unreasonably impairs the mortgage security; and when it impairs the mortgage security, the remedy of the mortgagee is not at law, but in equity;not in replevin, to recover the property severed from the realty, but generally by injunction to.restrain the commission of waste upon the realty.” The judgment of the district court will be affirmed*; Valentine, J., concurring.	[ -16, 104, -12, 29, 74, 98, -88, -104, 104, -79, -78, 83, -23, -38, 20, 121, 102, 13, -43, 105, 70, -73, 55, -55, -110, -13, 93, -51, -79, -40, -28, -41, 77, 36, -54, 61, -122, -24, 71, 92, -114, -115, -87, 64, -47, -88, 52, 127, 114, 75, 81, -86, -13, 43, 29, -61, -55, 44, -37, -87, 24, -15, -113, -41, -1, 90, -111, 32, -98, 5, -56, 50, -112, 53, 9, -24, 119, -90, -106, 116, 69, -117, 9, 126, 103, 115, -67, -17, 112, -100, 46, -9, -123, 103, -15, 72, 66, 105, -66, -99, 124, 16, 3, -4, -17, 12, 28, 108, 4, -117, -106, 55, 15, 62, -110, 19, -13, 37, -80, 97, -123, 50, 89, -58, 56, -101, -98, -68 ]
The opinion of the court was delivered by Brewer, J.: This action was replevin for a steer valued in affidavit at $15, commenced, before a justice of the peace by plaintiff in error, and was tried to a jury, and verdict and judgment for defendant, from which plaintiff appealed to the district court, where the action was again tried. On this trial the jury found for the plaintiff. A motion for a new trial was overruled, and judgment rendered for plaintiff below, plaintiff in error. After the close of the term of the district court at which the trial occurred, defendant filed his motion in said court “to set aside the judgment, and dismiss the appeal in said cause.” This motion came on to be heard by said district court at its next succeeding term •, and upon the arguments of counsel, and an inspection of the record, no evidence being heard, the court sustained said motion, to which exception was taken by the plaintiff. The defendant claims that inasmuch as the action was replevin for one steer valued at fifteen dollars, it comes within the second exception of section 10, p. 185, laws 1870, amending section 132 of the justices act, which prohibits an appeal in jury trials, “when neither party claims in his bill of particulars a sum exceeding twenty dollars.” In sustaining this motion we think the court erred. Even if it were conceded that an action for the recovery of personal property of a value not exceeding twenty dollars was within the section quoted, (a proposition we by no means concede to be correct; Martin v. Armstrong, 12 Ohio St. 548,) still the ruling of the court was wrong. The district court has original jurisdiction in an action of replevin, no matter how small the value of the property. (Gen. Stat. 304, § 1; Laws of 1870, p.181, §1; Laws of 1870, p. 183, § 5; Henderson v. Kennedy, 9 Kas. 163.) Hence, when a claim for personal property is presented in that court, and the plaintiff and defendant voluntarily appear and proceed to try the question, the defendant cannot be permitted thereafter to say that the court had no jurisdiction. It acquires jurisdiction of the person by the appearance of the parties, and has, by virtue of its general powers, jurisdiction of the subject-matter. (Shuster v. Finan, recently decided, and cases cited in opinion, ante, 114, 116.) Nor does it matter that a judgment has- been rendered in another court between the same parties, hnd in fact conclusive upon them. Such a judgment would be a defense to be raised on or before the trial. If not presented then, it must be considered as waived, or abandoned. Take this case: Suppose a judgment had been rendered in the district court of one county in favor of the defendant, in an action wherein both parties appeared, and thereafter the plaintiff commences an action in the district court of another county upon identically the same cause of action, and the defendant voluntarily appears and litigates the subject-matter without presenting the defense of a prior adjudication, and upon that trial judgment is rendered against him: can he be permitted to come in at a subsequent term, without any excuse for failing to present that defense at the trial, have the judgment against him s;et aside and the case dismissed because of such prior judgment? Clearly not. He is too late with his defense. Now if there be no appeal in this kind of an action from the justice to the district court, then in this respect the courts are as independent as the district courts of different counties. The action which was had before the justice was never transferred to the district court. Certain papers were filed there in which the plaintiff alleged that he was the owner and entitled to the possession of certain property. The defendant voluntarily appeared and litigated that question. After he had been beaten, and judgment rendered against him, and the court had adjourned, it occurs to him that the matter had been elsewhere conclusively adjudicated in his favor before another tribunal, and at a succeeding term moves to have the judgment set aside, and makes no showing why he did not present this defense at the trial. His objections to the judgment were not in time. The ruling of the district court must be reversed, and the case remanded with instructions to overrule the motion to set aside the judgment and dismiss the appeal. All-the Justices concurring.	[ -14, -18, -35, 46, -54, 96, 34, -104, 97, -95, 39, 19, -83, -61, 0, 41, 115, 41, 85, 107, -42, -93, 87, -127, -14, -77, -111, 85, -75, 76, -26, 87, 76, 48, 98, -43, 70, -54, -59, 84, -114, 12, 25, -20, -7, 72, 48, -69, 38, 11, 117, -113, -29, 46, 25, -57, 105, 41, -53, 57, 81, 88, -86, 13, 95, 0, -127, 38, -104, 66, 88, 42, -104, 57, 3, -24, 122, -74, -122, -44, 107, -103, 44, 102, 99, 1, 53, -17, -72, -120, 47, -33, 15, -89, -112, 88, 75, 8, -74, -67, -1, 0, 7, 124, -22, -108, 29, 108, 7, -17, -106, -77, -113, 52, -102, -61, -37, -77, 52, 113, -51, -32, 92, 71, 120, -101, -113, -2 ]
The opinion of the court was delivered by Horton, C. J.: Harvey brought an action of replevin against Rice, before a justice of the peace. He obtained possession of the property in controversy upon the order of delivery, and at the trial he obtained judgment for the retention of the property, and also for costs, taxed at $33.90. The cause was then taken up from the decision of the justice’s court on error to the district court, and having been there affirmed, is now presented to this court for a.review of the decision of the district court. The plamtirr in error complains, that the justice admitted incompetent evidence of a very prejudicial nature,against his objection, and subject to his exception. The evidence complained of was embodied in a bill of exceptions allowed and signed by the justice before whom the case was tried, and made a part of the record of the cause. No motion was made for a new trial before the justice; and the defendant in error now insists, that the plaintiff in error has no remedy by petition in error, and that the action of the district court therefore must be affirmed. In this view of the case the latter counsel are sustained by the decisions of this court. Ayers v. Crum, 13 Kas. 269; Nesbit v. Hines, 17 Kas. 316; Hover v. Cockins, 17 Kas. 518. If the ground of error alleged by plaintiff in error is one of the causes for which a new trial may be granted in a justice’s court, then, by the frequent adjudications of this court, such error is waived py the neglect of the party to move for a new trial. On the other hand, if the counsel of plaintiff in error is correct in his argument, that the complaint which he makes against the action of the justice is not one of the causes for a new trial in a justice’s court, he is excluded by such reasoning from obtaining a new trial by the discretion of either this court, or the district court. “A party has no abstract inherent right to a new trial. He has a right because, and so far only as, the statute gives it to him.” Nesbit v. Hines, supra. The reasons for requiring a second presentation of alleged errors on the part of the tribunal trying a cause, before such errors are subject to review in this court, are much stronger for errors occurring at the trial of a case before a justice than *n district court. The law provides, that when a party is aggrieved by the final decision 0f a justice he may appeal to the district court, in most cases; and upon such appeal he can have a trial de novo upon the merits of the case. - No such right is granted where a party brings his case here from the judgment of a district court. We can only review the rulings of the district court upon questions of law. In this case, if the plaintiff in error was prevented from having a fair trial by any ruling of the justice, even if he could not apply for a new trial before the justice he had ample remedy by appeal to the district court. Martin v. Armstrong, 12 Ohio St. 548. If the law gives him all of this protection, he ought not to complain because he has not the additional remedy by petition in error. Again, it is not to be expected that causes will be tried with the same judicial care, attention and precision by justices of the peace as by the district judges, who are elected on account of their ability, learning, and experience as lawyers; and therefore the importance of restricting the removal of cases by error from justices courts within all the fair intendments of the law. If this case could be reversed for the single erroneous ruling of the trial justice, almost every case tried before a justice, where the beaten party was represented by as learned, cautious, and watchful an attorney as now argues for a reversal, would be set aside, and justices courts would literally become “courts of errors.” Such a practice is not in consonance with the spirit of our laws, nor the language of our decisions. The judgment of the district court will be affirmed. All the Justices concurring.	[ -80, 110, -40, -114, 42, -31, 34, -104, 101, 33, 103, 87, -83, -125, 0, 119, 114, 125, 85, 107, 87, -73, 6, -45, -46, -13, -45, -43, 49, -35, -25, -34, 76, 52, -62, 85, 70, 74, -127, -44, -114, -97, 41, -20, 121, 40, 48, 42, 118, 7, 113, 62, -29, 46, 25, -57, -56, 44, -55, -67, 88, -79, -98, -115, 95, 5, -79, 38, -98, 7, 122, 46, -112, 57, 0, -72, 115, -106, -126, 84, 111, -103, 8, 102, 98, 1, 109, 47, -72, -87, 39, -65, 31, -90, -108, 24, 107, 65, -106, -99, 125, 22, 36, 116, -27, 85, 25, 44, 11, -113, -112, -69, -57, 16, -110, 91, -13, 3, -112, 80, -49, -24, 92, 71, 91, -37, -98, -98 ]
The opinion of the court was delivered by Valentine, J.: This was an action for the recovery of damages for the breach of certain real covenants. On the 16th of January 1869, Peter Clippenger and wife sold and conveyed to Aaron W. Manchester two certain parcels of land. The consideration expressed in the deed for both parcels, taken together, was $575. What the consideration for either piece taken alone was, is not shown. The deed also contained the following covenants, to-wit: “And the said Peter Clippenger and wife do hereby 'covenant and agree, that at the delivery hereof they are the lawful owners of the premises above granted, and seized of a good and indefeasible estate of inheritance therein, free and clear of all incumbrances, and that they will warrant and defend the same in the quiet and peaceful possession of said party of the second part, his heirs and assigns, forever.” Afterward Manchester and wife sold and conveyed by deed one of said pieces of land to Hiram C. Hastings. Afterward Hastings was evicted therefrom; and he then commenced this action against Clippenger and wife for breaches of their said covenants. He did not make Manchester a party to the suit. On the trial of the case it was shown that the consideration of $575 expressed in the conveyance from Clippenger to Manchester was made up of $375 for the piece of land which Manchester conveyed to Hastings, and of $200 for the other piece of land. But Clippenger offered to prove by his own testimony as follows: “That the only and sole consideration that he has received for said conveyance was a worthless and useless patent-right called ‘Calkins’ patent fence;’ that said conveyance was only obtained by believing the false and fraudulent representations of said A. W. Manchester as set forth in his (Clippenger’s) answer, the allegations whereof he offered to testify were true, and that plaintiff (Hastings) had notice thereof when he purchased said land.” The district court decided such testimony improper, and ruled it out; and said court rendered judgment in favor of Hastings and against Clippenger and wife, and they now bring the case to this court. Several questions are raised in this court, but we do not think that it is necessary to decide any of them except the one whether said evidence was correctly or incorrectly ruled out. We think the evidence should have been admitted. If in fact Clippenger received no consideration for his land from Manchester, and if in fact Hastings at the time of his purchase knew it, Hastings cannot recover in this action. Nor can he recover anything from Clippenger and wife in any other action. Under such circumstances Hastings stands in no better condition than his grantor, Manchester, does. The judgment of the court below will be reversed. All the Justices concurring.	[ -15, 124, -40, 63, -38, -32, 42, -16, 104, -93, -13, 127, -1, -40, 0, 41, -26, 29, 81, 106, 86, -78, 23, 99, -14, -13, -7, 93, -79, 92, -10, -41, 76, 36, 74, 61, 98, -118, -63, 88, -58, 6, -119, 109, -47, 64, 52, 59, 82, 75, 117, -114, -13, 47, 29, 95, 33, 44, -53, 53, -48, 120, -66, 13, 95, 3, -110, 52, -104, 7, -24, -114, -104, 53, 8, -24, 123, -76, -106, 116, 65, -69, 45, 102, 99, 32, 5, -17, -6, -104, 46, -10, -115, -90, 80, 80, 3, 33, -66, -99, 117, 80, 37, 118, -18, 29, 29, 108, 3, -113, -106, -126, -99, 122, -120, -126, -25, -85, 49, 113, -57, 42, 92, 97, 48, -101, -114, -38 ]
The opinion of the court was delivered by Horton, C. J.: This was an action brought in the court below by Crawford against Hubbard upon the latter’s official bond as register of deeds of Harvey county, to recover the fees and emoluments of the said office from 12th January to 23d September 1874. The case was tried by the court, a jury having been waived. The court stated in writing the conclusions of fact found, separately from the conclusions of law. The court released the sureties on the official Fond, but rendered judgment in favor of Crawford for $347.25. The counsel for defendant in error objects to the consideration of the case-made, and asks for a dismissal of the proceedings here for the reason that said case-made was prematurely filed before the time had arrived for the defendant in error to submit amendments. The suggestion against the case-made is pertinent and forcible, and we cannot consider any part of the proceedings therein embodied. But anticipating this result, the counsel for plaintiff in error has sufficiently protected the interests of his client by also attaching to the petition in error a certified transcript of the record of the district court. And thus we have properly before us for review, the pleadings in the case, the conclusions of fact and of law, the motion for a new trial, the exceptions taken to said conclusions of law, the judgment, and journal entries. We shall disregard the case-made and confine ourselves to the certified transcript of the proceedings of the court below. The facts in the case are substantially these: Prior to 12th January 1874, Hubbard was the duly elected, qualified, and acting register of deeds of Harvey county; at the general election in November 1873, Crawford was a candidate for said office, and received the largest number of votes therefor; the board of county commissioners of Harvey county failed and refused to canvass the votes cast for said candidate at that election at their meeting held on Friday next following the election, and delayed their canvass of the votes till September 23d 1874; Crawford never filed his oath of office, nor his official bond, until after the canvass of the votes on September 23d 1874; the fees and emoluments of the office received by Hubbard from January 12th to September 24th, were $600, and during this time the value of Hubbard’s labor and services rendered in attending to the duties of the office were $300; as soon as Crawford received his certificate of election, and had qualified, Hubbard turned over to him the office and its papers; books and records; Plubbard neither requested, solicited, nor persuaded the board of county commissioners of Harvey county not to canvass the votes. As a conclusion of law, the court below held, that although Crawford was not duly qualified as register of deeds till September 23d 1874, he was entitled to the fees and emoluments of the office from January 12th to September 24th, less $300, the value of Hubbard’s services in discharging its duties. The main question at issue is, whether Hubbard, the prior incumbent, or Crawford, was entitled to the fees and emoluments of the office of register of deeds of Harvey county for the time during which the former held over. The question is one of easy solution. Express provision is made by the constitution of this state, that all county officers shall hold their offices until their successors shall be qualified. (Art. 9, section 3.) A register of deeds is a county officer, and before he can enter upon the duties of his office must execute to the state of Kansas, and file with the county clerk of his county, a bond, in the penal sum of two thousand dollars, with two or more sufficient sureties, to be approved by said clerk, and must also within twenty days after receiving official notice of his election, or within twenty days after the commencement of the term for which he was elected, take and subscribe the oath of office prescribed by law,, before some officer authorized to administer oaths, and deposit the same with his official bond, to be filed and’ preserved therewith. (Secs. 87, 173, ch. 25, Gen. Stat.) And the failure of a'register of deeds to file his official oath and bond as required by law vacates his office. (The State v. Matheny, 7 Kas. 327; Gen. Stat., ch. 25, § 179.) Hubbard was not an intruder in the office; he did nothing to delay a canvass of the votes, nothing to prevent a declaration of the result, nothing to hinder Crawford from taking the steps imposed and made preliminary to the exercise of the accustomed duties of the office. Crawford had no contest with Hubbard; and in fact the latter only acted in accordance with his constitutional right in holding over until Crawford was duly qualified. Under the conclusions of fact found, the court below erred in its conclusion of law, and in rendering judgment for the defendant in error. The law will not aid Crawford in compelling his predecessor in office to pay to him any part of the fees and emoluments received and . earned by him prior to his qualification on Sept. 23d 1874. (See Thompson v. Nicholson, 12 Rob. (La.) 326; Commonwealth v. Slifer, 25 Penn. St. 23; City of Philadelphia v. Given, 60 Penn. St. 136.) Other questions are raised .in the briefs of the counsel of plaintiff in error, but as the conclusion we have reached disposes of the case here, and will end the action in the court below, it is unnecessary to pass upon them. It becomes our duty, upon the conclusions of fact, not only to reverse the judgment of the district court, but to remand the case with instructions to enter judgment for costs in favor of plaintiff in error, the defendant below. So. ordered. All the Justices concurring.	[ -76, 124, -36, -115, 58, -64, 26, 8, 24, -94, -89, 119, -23, -46, 12, 99, 50, 61, 80, 105, -58, -74, 83, 35, -42, -109, 11, -41, -77, -53, -9, -51, 78, 56, -54, -107, 36, 72, -57, -36, -58, -127, -87, -56, 89, 104, 48, 59, 34, 75, 117, 62, -13, 42, 29, -62, 73, 40, -39, 57, 80, -71, -98, -99, 95, 7, -79, 102, -104, 3, -88, 46, -104, 49, -112, -8, 123, -74, 6, 84, 111, -103, 12, 100, 102, 1, -3, -25, 104, -120, 13, -74, 29, 38, -110, 25, 123, 8, -74, -99, 61, 16, 3, -10, 102, -124, 25, 108, 7, -114, -38, -65, 5, 48, -100, 67, -29, -95, 16, 81, -115, -94, 93, 103, 19, -101, -114, -70 ]
The opinion of the court was delivered by Horton, C. J.: The appellant was convicted of murder in the second degree, at the February term for 1876 of the district court of Saline county, and now appeals to this court. This is the second time the case has been brought here. (The State v. Bohan, 15 Kas. 407.) At the outset, objections are presented to this court by the counsel of the state to the record on file; and the first question in the case is, as to what portion of the record, if any, is legally before this court, and what alleged matters of error can this court properly consider. The term of the court at which the appellant was tried commenced on February 28th, and was extended and kept open until the commencement of the next term thereafter, to-wit, May 29th. Three separate bills of exceptions were signed and filed in the court below, viz., on March 3d, on April 28th, and on June 5th. The bills of exceptions filed March 3d, and April 28th, during the term of the court, were within time, and all matters therein stated can be fully considered. These relate to the action of the court overruling a motion for a change of venue on account of the alleged prejudice of the judge, and the denial of an application of the appellant to set aside the jurors summoned at the term of the court, because of alleged irregularity in the manner the same were drawn. The alleged errors set forth in the third bill of exceptions, filed on the 5th of June, that day being after the commencement of the May term of the court, and after the February term had expired by law, are not legally here for our determination. “A bill of exceptions filed out of term, is no part of the record.” Brown v. Rhodes, 1 Kas. 359; Lownsberry v. Rakestraw, 14 Kas. 151, 154. The defective record has been attempted to be cured in three ways, viz, by filing an agreement, from the late attorney-general that the bills of exceptions were properly signed and filed, and that the case might be heard upon the merits; by bringing to this court a copy of an agreed statement showing that the bills of exceptions were presented to the court below on May 27th, for allowance; and by an alleged nuno pro tuno order of the court of June 5th. None of these attempted curative acts are effective for the purposes intended. This court has decided that the time for reducing exceptions to writing beyond the trial term cannot be extended by a judge, even when consent of counsel has been given, and that we cannot take cognizance of a case not brought here by regular process of law, nor unless in conformity with the statutes regulating the manner of bringing cases into this court. Gallaher v. Southwood, 1 Kas. 143; Cohen v. Trowbridge, 6 Kas. 385; Hodgden v. Comm’rs of Ellsworth Co., 10 Kas. 637. If counsel could waive in this court manifest irregularities as to the mode and. time of signing and filing , ,,, „ . , . n , bills or exceptions, the preparation and approval of bills of exceptions beyond term-time would become allowable, and the provisions of the statute in this respect be disregarded. As the time for reducing exceptions to writing cannot be extended beyond the trial term, so a bill of exceptions, which has been allowed and filed beyond the trial term, and at the regular term next after that of the trial, cannot be considered here, although counsel formally agree to waive the disregard of the law as to the making of the said bills of exceptions. The copy of the agreed statement, showing that the bills of exceptions were presented in due time to the court, and the argument thereon founded, that this court could by mandamus compel its being duly signed, even after the adjournment of the trial term, and hence the signing and filing of said bill of exceptions on June 5th should be held sufficient, does not help the case of the appellant. An agreed statement cannot be made to supply the place of a bill of exceptions taken in accordance with the statute. In this case, the agreed statement is neither filed, nor signed; and does not purport to be any part of the journal entry. It is no part of the record, and must be totally disregarded. Patee v. Parkinson, 18 Kas. 465; Young v. The State, 23 Ohio St. 577. In the absence of this agreed statement, there is nothing in the record to show that the bill of exceptions No. 3 was ever presented to the court prior to the 5th of June. The so-called order nune pro tune, made June 5th, and during the May term of the court, does not relieve the difhculty. If it was intended by such order to have ^-jjg except¡ons which were presented and signed and filed at the regular term next after that of the trial refiled, and marked as if presented, allowed, and filed at the preceding term, such an order was a nullity. The grounds upon which said order was made simply show that application was made therefor by the attorney of the appellant, and the order does not purport to supply any matter omitted by the clerk from the records of the February term. Nor does it appear that the clerk had made a different entry from that which was ordered. The State v. Jeffors, 64 Mo. 376. Indeed, we cannot tell with certainty that such order was intended to apply to bill of exceptions No. 3. It is certain that the record does not show that said bill was presented at any other time than June 5th. Under what circumstances a bill of exceptions may, by order of a court at a subsequent term, be made available by a nune pro tune order, it is not necessary in this case to determine, because the parties, as the rec ord is presented, are concluded by the record that the said bill of exceptions No. 3 was not presented, signed, or filed during the trial term. The so-called nune pro tuno order makes this manifest. We return to an examination of the bills of exceptions which were properly filed. I. The first supposed error was the refusal of the court to remove the case to the district court of some county in a different district, on the application and testimony presented by the appellant, when the cause was called for hearjng, that the judge of the court was prejudiced. The testimony relied upon to sustain the motion was the affidavits of the appellant, and of his counsel, Messrs. Fenlon, Mohler, and Spivey, the records of a previous trial of this case, and a reversal by the supreme court of the judgment in the case, and also, the proceedings before the said judge under which the appellant was required to give bail in the sum of $15,000 "for his appearance to answer the charge contained in the information. We do not think the showing made was sufficient to compel a change of venue. That the testimony hereinafter set forth may be fully understood, we should perhaps state, that at the November term of the court for 1874 the appellant was convicted of the same crime for which he is now under sentence, namely, the murder of Thomas Anderson. Then he was sentenced by the court below to imprisonment in the penitentiary for twenty years. At the July term of this court for 1875, this judgment was reversed, because of the error of the district court admitting the so-called dying declarations of one William N. Anderson, when the homcide of Thomas Anderson was the subject of the charge and investigation. The same judge presided at both trials in the district court. The affidavit of defendant Bohan states: “That the rulings of the court (at the first trial) were adverse; that the court lectured him at the time of sentence, and said defendant was guilty of the offense of which he had been convicted; that he had committed a willful, deliberate and malicious murder; that there was no excuse or justification; that while there' might be for killing William N. Anderson, there was none for killing Thomas; that if the verdict had been in the first degree, he would have sustained it.” The affidavit of Thos. P. Fenlon, Esq., states, “That without charging any unfairness upon said judge, he believes he is so prejudiced,” etc. J. G. Mohler, Esq., simply swears to the affidavit of Thos. P. Fenlon, on belief. J. G. Spivey, Esq., states, “That whilst he does not charge or intimate any unfairness or unworthy motive, yet he firmly believes the judge has, by his very situation, become so prejudiced,” etc.; and “that he regarded the language of the judge at time of sentence, harsh and severe; and that the judge expressed convictions of appellant’s guilt in the second degree, and also stated, as he recollects, that if the jury had found him guilty in the first degree he would have sustained it.” In answer to the affidavits and testimony of the appellant, on the motion, the trial judge filed a statement, which contains among other things, the following: “I am quite sure I did not use the language imputed to me in the petition and affidavit of defendant, to-wit,‘ that he had committed a willful, deliberate and malicious murder.’ I discussed the testimony somewhat in pronouncing judgment, and said there was some that would tend to show deliberation' and premeditation, (quoting it,) and that this was the charge and the theory of the prosecution, and that the facts were such, as shown by the testimony, on these points, ‘that if the jury had returned a verdict of murder in the first degree I should not have disturbed it’—coming nearer to the language used in the affidavit of John G. Spivey. In deciding upon the question of bail, I did not discuss the case, or express or intimate any opinion on it in any way, either of my own, or as to what the testimony had shown. And in pronouncing judgment, I did not in any way express my own opinion on the case, but only discussed the testimony adduced on the trial. The affidavits do not show any statements or acts of mine out of court, but as far as facts are stated therein (eliminating conclusions of law, and fact, and opinions, which have but little weight,) they show only an expression or words gathered now and then from the whole proceeding of the trial and judgment, at which I am compelled to preside and act; and when these words are quoted they are disjointed from their legitimate connection, which leaves their construction, meaning, and weight not fully understood.” From the testimony we cannot say that the evidence shows any prejudice toward the appellant by the trial judge; much less can we say that prejudice dearly appears. The law provides, that “when the defendant appears for judgment he must be informed by the court of the verdict of the jury, and asked whether he has any legal cause to show why judgment should not be pronounced against him;” and in answer to the inquiry last stated, the defendant often replies that he is innocent, and has been wrongfully convicted. In answer, the trial judge frequently comments upon the trial, the manner the party has been defended, and the evidence introduced in the case, and frequently remarks very similar to those stated by the trial judge to have been spoken by him on the occasion of the first sentence’ of the appellant, are made use of. We are aware of no authorities which go to the extent that statements, thus made, amount to prejudice or ill-will. To thus hold in this case, would lead to absurd consequences. No authority is cited by counsel for appellant to sustain the proposition that these comments upon the evidence are sufficient to establish prejudice. Neither can the adverse ruling of the trial judge, on the first trial, which was afterward corrected in this court, be held to authorize a change of venue. Errors of judgment, do not amount to prejudice or ill-will on the part of a judge. The theory of our judicial system is, that courts of nisi prius may commit errors of judgment in matter of law, which are to be reviewed by courts of last resort; but such errors have never been held equivalent to prejudice. Burk v. Mayall, 10 Minn. 287. Counsel for appellant contend however, that the cause for a change of venue, specified in section 173 of the criminal code (Gen. Stat. 847,) is properly presented in the manner required by section 177 of same code, and that accord ing to the doctrine of Smith v. The State, 1 Kas. 365, the showing by the defendant on his application was all that was necessary. The argument is not good. The decision cited construes section 155 of the criminal code of 1862, (Comp. Laws, 259,) among others; and said section relating to change of venue did not require the defendant to prove to the .satisfaction of the court the facts set forth in the application for the removal, but merely to support the truth of the allegations by the affidavit of the de^ndant, or some credible disinterested person. The law has since been changed. Section 177 of our present criminal code, (Gen. Stat. 1868, p. 848,) which answers to section 155 of the criminal code of 1862, prescribes that, “In the petition for a change of venue, the applicant shall set forth the facts upon which the application is made, and the truth of the allegations in the petition shall be made to appear by affidavits to the satisfaction of the court.” Sections 174 to 177, criminal code of 1868, apply to cases where the application is based upon the prejudice of the inhabitants. City of Emporia v. Volmer, 12 Kas. 622. In concluding this branch of the case we quote from the opinion of Mr. Justice Brewer in the case of the City of Emporia v. Volmer, supra: “If it were to be determined by simply the affidavit of the defendant, there would be almost numberless changes of venue. Every defendant closely pressed, would ■ seek delay in this manner. A change of venue is a wrong to the public, unless the necessities of justice to the defendant require it. It works delay. It causes expense. It endangers a prosecution. A defendant is easily persuaded of the prejudice of the judge. Adverse rulings convince him of the fact. It seems to us therefore, that this is the true rule: that such facts and circumstances must be proved, by affidavits, or other extrinsic testimony, as clearly show that there exists a prejudice on the part of the judge toward the defendant; and unless this prejudice thus clearly appears, a reviewing court will sustain an overruling of the application, on the ground that the judge must have been personally conscious of the falsity or non-existence of the grounds alleged. It is not sufficient that a prima facie case only be shown, such a case as would require the sustaining of a challenge to a juror. It must be strong enough to overthrow the presumption in favor of the trial judge’s integrity, and of the clearness of his perceptions.” II. The second error alleged in the exceptions filed in time is, that the court erred in not discharging or setting aside the jurors ordered and drawn on the second day of March 1876. The complaint is, that one L. M. Tuttle, a deputy-sheriff, attended at the county clerk’s office to witness the drawing at the date named, in place of the sheriff of the county, or the under-sheriff of the county, as provided by sec. 11, Gen. Stat. 1868, p. 535. The alleged error is extremely technical; but as the law was fully complied with, we see no material error. By sections 10 and 11, (Gen. Stat. 535,) it will be seen that two justices of the peace of the county, and the sheriff in person, or by his under-sheriff, shall be notified by the county clerk to be present and witness the drawing, and if any two of them attend, the clerk shall proceed to draw the jury. The record shows that E. L. Norton and R. H. Bishop, two justices of the peace of said Saline county, did attend, as required by law, in answer to the notifications, and on the day of the drawing signed a sufficient certificate to the effect that on the 2d of March 1876 the jury were drawn. It is not shown that either the sheriff or his under-sheriff, attended the drawing. Neither does it appear that the sheriff was not notified; and it is not claimed that any other irregularity occurred except that said deputy-sheriff was present at the drawing, and together with the county clerk and the two justices of the peace signed the certificate of the names of the persons drawn, and the date thereof. The county clerk testified on the motion, that at the drawing of the jurors, he, as county clerk, alone drew the names of the jury from the box, and the other persons, whose names were attached-to the certificate, were present and witnessed the drawing.” As two of the officers required by the law to attend and witness the drawing were present, with the county clerk, and as the law compels the clerk to proceed (when two are present) to draw the jurors, the mere fact that a deputy-sheriff was also in attendance, and afterward signed with the others a certificate of such drawing, in no way renders the drawing void. The court rightfully overruled the motion. III. Notwithstanding the invalidity of the bill of exceptions filed on June 5th, and beyond the trial term of the court, we have examined the entire testimony, and record, with care; and we cannot say that the judgment rendered was erroneous. The evidence very strongly sus- , . . , , ° tains the verdict. Much complaint is made concerning the direction of the jury; but a review of all the instructions shows very clearly that the court, upon the question of self-defense, adopted the decisions of this court, and fully instructed the jury, that all the law exacts is, that there shall be a reasonable apprehension of imminent danger, and that of the reasonableness of this apprehension the jury are to be the judges. “There must not only be reasonable ground to believe such a design exists, but the person to execute the design must be accompanied by some attempt to execute it, or the person must at least be in an apparent situation to do so, and so induces a reasonable belief that he intends to do it immediately. Where the justification is based upon recent threats, and circumstances which would tend to lead the defendant to believe that his life was in imminent danger, the threats and circumstances must not only tend to lead to the belief, but they must force the belief upon the mind, and then the belief must be reasonable, and such as reasonable men act on.” The State v. Horne, 9 Kas.19; The State v. Howard, 14 Kas. 173. There are some expressions ■ in the charge of the court, which are copied in the brief of counsel for the appellant, that, detached and isolated, as presented to us, seem proper subjects of criticism. But all of this arises from snatching a single phrase from its proper connections, and giving it a special instead of the general application it had. Taking the context, we find no just ground of complaint. Instructions are to be considered and construed together, as a whole; and if not erroneous when so construed, no one of them will be held to be erroneous. The State v. Dickson, 6 Kas. 209. IY. Complaint is also alleged in the so-called bill of exceptions No. 3, that the court erred in overruling the motion and showing for a new trial, because it was alleged that W. S. Warner, one of the jurors, had formed and expressed opinions as to the guilt of the appellant before the trial of the cause, and of which the appellant had no knowledge until after the verdict. This charge was fully and carefully investigated by the trial judge, and mostly upon oral testimony. The juror satisfactorily denied all statements affecting the alleged incompetency. A large number of witnesses were introduced to show that the parties attacking the competency of said Warner as a juror were unworthy of belief, and that their reputations for truth and veracity were bad. Others were called to support the characters of these parties. Under the circumstances, without deciding whether, under our practice, the alleged statements of Warner, if proved, would be a ground for a new trial, when the objection is taken for the first time after the trial, upon affidavits showing disqualification, we are of the opinion we cannot now adjudge the action of the court below erroneous in this respect. The well-settled rule of this court should prevail in this matter, as in others, that where the trial court has had the opportunity of hearing the testimony from the witnesses in person, and of seeing them as they uttered the same, and has thereon rendered a decision, this court will not hold such decision erroneous as to questions of fact, unless it is clearly apparent that the decision or finding is wholly unsupported by evidence. V . Additional error is alleged upon a statement incorporated in the record by the district clerk, to the effect that- the appellant was tried in the court below upon a copy of the information; this ground of error is not well taken. The record does not sustain the allegation. The certificate Of the clerk as to what took place at a trial must be disregarded. The clerk has no such authority. If such was the fact, it should have been properly presented. This claim was not made upon the trial, and this alleged error nowhere appears in any of the numerous motions made in the court below. It is raised in this court in the case for the first time. A reading of all the record would seem to show that the appellant was tried upon the original information filed against him; but the clerk, of his own motion, interpolates in the record his statement that such was not the case. This statement goes for naught. Bills of exceptions are not thus made, and matters of this character cannot thus be brought to this court for review. Having examined all the causes for which it is claimed that a new trial should be granted, and having found no error in them, the judgment is affirmed- All the Justices concurring.	[ -80, 104, -44, -114, 43, 96, -126, -102, 91, -93, -27, 115, -27, -110, 21, 105, 83, 13, 117, 105, -60, -105, 6, 65, -78, -13, -38, -41, 49, 104, -10, -33, 72, 96, 74, -43, 70, 72, 99, -44, -122, -125, -87, -20, 81, 0, 60, 107, 79, 3, 113, 62, -29, 47, 28, -62, -23, 40, 72, 61, -39, -79, -114, 15, 79, 0, -77, -90, -98, -121, -56, 46, -104, 57, 0, -4, 115, -122, -122, 84, 111, 25, 8, 102, 98, 35, 44, -25, 40, -88, 63, 63, -99, -90, -112, 121, 75, 72, -98, -103, 55, 116, 3, -6, -27, 4, 17, 44, -128, -114, -112, -111, 15, 36, -110, 90, -29, -126, 48, 113, -51, -26, 92, 103, 51, -37, -34, -100 ]
The opinion of the court was delivered by Valentine, J.: John C. Reisner, plaintiff in error, made complaint under oath before J. K. Fisher, a justice of the peace in the city and county of Atchison, charging one William Moore with the offense of “assault and battery.” A warrant was issued. Moore was arrested, brought before the court, was tried by the court and convicted, and sentenced to pay a fine and costs. Moore took appeal, and afterward was tried by a jury in .the district court upon the same charge, and therein the jury returned a verdict of “ not guilty.” And thereupon the county attorney filed his motion to assess the costs against Reisner, the prosecuting witness, for the reason “that the defendant (in the prosecution) had been discharged,” which motion the court sustained, and did assess all the costs of prosecution against said Reisner, prosecuting witness and plaintiff in error, against his objection, and to which he duly excepted. No appeal was ever taken from the district court to the supreme court, but Reisner made a case for the supreme court under the provisions of the code of civil procedure, and brought the case to the supreme on such “case-made” and on petition in error. No appearance has been made in this court by either the county attorney of Atchison county, or the attorney general. Indeed, no appearance has been made in- this court for the state by any person. We therefore think that we have no jurisdiction to. hear and determine the case upon its merits. The case is not a civil action. It is not an incident to a civil action; and it has no connection whatever to any civil action. It is really a part and portion of and an incident to the criminal action brought by The State of Kansas .against William Moore. But in this particular phase of the case we should think that Reisner might be considered as the defendant, and The State of Kansas as the plaintiff. And if Reisner has any right to bring the case to this court, (and we are inclined to think he has,) he must bring it here, not on petition in error, as though it were a civil action, but on appeal, as all criminal actions are brought to this court. (Gen. Stat. 865, 866, § 281, et seq.) The petition in error in this case must be dismissed. The case of McGilvray, plaintiff in error, against The State of Kansas, defendant in error, involves almost precisely tbe same preliminary question, before the merits can be examined, as the Reisner case above mentioned does, and therefore the McGilvray case must also be dismissed. About the only difference between the two cases is, that in the McGilvray case there has been an appearance in this court for the state, while in the other case there was no such appearance. But this appearance in the McGilvray case is not made by the county attorney, nor by the attorney general, nor by any other person authorized by law to make an appearance for the state, and therefore we do not think that such an appearance alone can have the effect to authorize an examination of the case upon its merits. But even if the appearance had been made by the county attorney, or the attorney general, it would still be doubtful whether the case could be heard and examined upon a “ case-made” and on a petition in error where no appeal had been taken, and no transcript of the proceedings of the court below had been brought to the supreme court. The petitions in error in both cases are dismissed. All the Justices concurring.	[ -16, -30, -95, -66, 42, -31, 34, 8, 81, -95, -9, 115, -19, -53, 0, 127, 120, 63, 84, 121, 71, -74, 71, 97, -46, -13, -47, -43, -77, -49, -10, -4, 12, -80, -54, -43, 38, 72, -63, -44, -114, -124, -87, -24, -61, 8, 32, 49, 50, 11, 113, 46, -29, 42, 60, -61, -23, 40, -37, 45, -125, -15, -114, 31, 95, 4, -95, 54, -34, -121, 88, 58, -104, 57, 2, -8, 123, -124, 2, -44, 77, -85, 45, 102, 99, 1, -39, -21, -16, -71, 63, 29, -99, -90, -107, 88, 107, 5, -74, -67, 103, 112, -113, -12, -25, 20, 31, 124, 3, -113, -112, -69, -49, 48, -110, 123, -29, 39, 0, 65, -59, -90, 93, 71, 48, -101, -98, -106 ]
The opinion of the court was delivered by Brewer, J.: This case was submitted upon an agreed statement of facts in the court below. From this agreed statement the following facts appear: “Wilson, the defendant in error, was an acting justice of the peace in the city of Olathe, Johnson county, in 1874. On 23d June 1874, one Gurnee was arrested and brought before said Wilson for trial. The offense with which Gurnee was charged was one which Wilson as justice of the peace had jurisdiction to try. On the 30th of June Wilson proceeded to try the case, which resulted in the conviction of Gurnee, who was fined in the sum of twenty-five dollars and costs of prosecution, and was by the court committed to the jail of Johnson county until the sentence and judgment of the court should be complied with. From this judgment Gurnee appealed to the district court. In the district- court a trial was duly had with a like result as in the justice’s court, with this exception: Gurnee was fined in the sum of fifty dollars, instead of twenty-five. Gurnee then appealed to the supreme court, which court affirmed the judgment of the court below. The mandate of the supreme court was filed in the court below on the 8th of June 1875, and immediately thereupon, a motion was made by the county attorney asking that the judgment and sentence of the court should be carried into effect. Gurnee failed to pay the fine and costs adjudged against him, and he was thereupon committed to the jail of Johnson county. On the — day of June, Gurnee made an application to the board of county commissioners to be released from confinement, basing his application upon chapter .117, laws of 1871. Satisfactory proof of Gurnee’s inability to pay the fine and costs adjudged against him was produced before said commissioners, and upon the 9th of June 1875 he was released from jail by their order. Said order did not release nor did it attempt to release said Gurnee from the payment of said fine and costs. Wilson performed the services for which his bill was made out, and on the 24th of June 1875 the bill was presented to the commissioners for allowance, and rejected. Such claim was for fees as justice for services done at the instance of the prosecution in the trial before himself, and as witness on the part of the prosecution on the trial in the district court.” Was the county liable? That the county is not liable in the absence of a statute making it liable, is conceded; and also, that if the case had stopped with the justice, and not been appealed, it would not have been liable for any costs in that court. Sec. 27 of ch. 83, Gen. Stat., p. 884, expressly provides that— “No costs shall be paid by the county in any case of mis- - demeanor of which a justice of the peace has jurisdiction under this act, when the complainant or defendant shall be adjudged to pay them.”—(Procedure Act in Misdemeanors, §27.) A release by the county commissioners of the defendant from imprisonment would not under those circumstances have made the county liable. This does not seem to be questioned. But the contention of counsel is, that the appeal vacated the judgment of the justice, and divested him of jurisdiction; that thereafter the case was one in the district court; that section 23 of same act provides that the district court in rendering judgment shall also render judgment for the costs before the justice; and that then § 325 of ch. 82, Gen. Stat., p.872, becomes applicable, which provides that— “The costs incurred on the part of the prosecution shall be paid by the county in which the offense is committed, when the defendant shall be convicted and shall be unable to pay them.”—(Criminal Code, §325.) We cannot concur with these views. Chap. 82 is the code of criminal procedure, applying to criminal proceedings generally. Some of its provisions in terms apply to certain courts, and some to others; some in their nature are only applicable to one class of courts, while others are equally applicable to all courts, and all criminal cases. Article 16 of this chapter, in which is found section 325, quoted supra, is entitled and refers to “costs in criminal cases.” Section 325 is general, and except as modified or limited by other legislation applies to all criminal cases. If there were no other legislation the county would doubtless be liable for the costs sued for in this case. But chapter 83 is subsequent legislation, having been approved nine days after chapter 82. It provides for proceedings in certain misdemeanors before justices of the peace, and gives to them exclusive jurisdiction thereof. And in said section 27, above quoted in full, it provides that no costs shall be paid by the county in those eases when the complainant or defendant is adjudged to pay them. It does not say, no costs incurred in the justice’s court, bu,t “ no costs * * * in any case of misdemeanor of which a justice of the peace has jurisdiction under this act.” The exception to the general provision is not as to the court, but the class of cases. The county pays no costs in those cases, and not simply no costs in those courts. Section 27 is a limitation on section 325. Effect must be given to each if possible. They are in pari materia, and to .be construed together. If they stood side by side in the same act there would seem little difficulty in arriving at the legislative intention. The one says substantially, “in all cases;” the other, in cer tain specified cases. The latter is a limitation upon, an exception to, the former. The contingency named in said section 27 arose in this case. The defendant was adjudged to pay the costs. He still remains adjudged to pay them. We think therefore that the county was not liable for any of the costs sued for. Section 19 of the act relating to and fixing fees, (ch. 39, Gen. Stat. 483,) whatever effect it may have as to the claims of other officers, does not help the claimant in this case. The judgment of the district court will be reversed, and the case remanded with instructions to render judgment in favor of the defendant, the plaintiff in error, for costs. All the Justices concurring.	[ -112, 110, -71, -33, -70, -128, 42, 24, 89, -79, -91, 115, -23, -102, 0, 105, 115, 109, 85, 121, -60, -73, 55, -13, -78, -77, -37, -59, -79, -17, -28, -44, 75, 48, 74, 29, -122, -56, -59, 86, -114, 0, -88, -8, 89, 64, 48, 57, 82, 11, 49, -82, -5, 42, 24, -21, 105, 44, -39, 41, 81, -15, -40, 21, 127, 30, 19, 38, -104, 7, 72, 62, -104, 49, 3, -8, 115, -94, -122, -43, 101, -101, 44, 102, 102, 33, 60, -49, -88, -120, 30, -106, -99, -89, -110, 89, 107, 44, -74, -99, 117, 16, 7, -12, -21, 5, 61, 124, 3, -114, -78, -69, -113, 48, -114, -45, -53, 33, 48, 97, -60, -10, 92, 103, 114, -101, -98, -72 ]
The opinion of the court was delivered by Valentine, J.: This was an action brought by Blake to perpetually enjoin the collection of certain taxes. The petition in the court below alleged among other things that the county commissioners of Osborne county, on the 7th of October 1876, levied certain taxes, all for the current expenses of said county, and all for the current expenses of that year except one of said taxes, which was levied for the payment of a certain judgment “which was rendered” in favor of one Wilson “on warrants issued by the said board of county commissioners to defray the current expenses of said county mainly for previous years.” For what amount of the current expenses of the year 1876, or of any previous year or years, these warrants were issued, the petition does not shbw. The amount for the year 1876 may have been one cent, or one dollar, or any other small amount. The tax levied for the payment of said judgment was 18 mills on the dollar of the valuation of the taxable property of said county for that year, and the total levy of taxes for current expenses for that year amounted to 36 mills on the dollar of said valuation. The assessed value of all the taxable property of said county amounted to less than five millions of dollars, and hence the county commissioners were authorized to levy a tax, for the current expenses of any one year, of one per cent, on the dollar of such valuation, and no more. “The said board of county commissioners were not authorized by any direct vote of the electors of said county to levy a tax exceeding one per cent, for current county expenses upon the valuation of the taxable property of said county; nor were they authorized by any direct vote of the electors of said county to levy any tax whatever for the payment of said judgment; nor was any portion of said taxes levied for the purchase of land, or for the erection of buildings thereon for the maintenance of the poor of said county, or for the support of the poor therein; nor was said board of county commissioners authorized by a vote of the electors of said county to levy a tax for said purposes.” Upon this petition and affidavits a temporary injunction was allowed. All of the defendants demurred to said petition. Those of said defendants who are now plaintiffs in ex-ror demurred to said petition on the ground that it did not state facts suffi cient to constitute a cause of action. Said demurrer was overruled; and the defendants making no application to answer to said petition, a decree was given against them upon the petition, perpetually enjoining them “from collecting all of said taxes levied in excess of one per cent, on the dollar of the valuation of the property of the said Winslow Blake for current county expenses for the year 1876.” Both parties construe this decree as perpetually enjoining the collection of that portion of said 18-mill tax which was levied on Blake’s property for the purpose of assisting in paying Wilson’s judgment; and, as the decree is open to such a construction, we shall also construe it in the same manner. And giving it such a construction, we think it is erroneous. It is true that the commissioners of Osborne county had no authority to levy a tax for the current expenses of such county for any one year of over one per cent, 'on the valuation of the property of such county for such year. (Gen. Stat. 294, ch. 25, §181.)' But said 18-mill tax to pay Wilson’s judgment was not levied “for the current expenses of any one year” It was levied for the current expenses of years, and mainly for the current expenses of years previous to 1876; but for just how many of such years, and for what particular years, we are not informed. Now it may be that in said previous years only a small amount of tax was levied for the current expenses of those years; and if so, then we can see no good reason why the county commissioners should not be allowed to levy an additional amount of tax for the current expenses of those years, provided that the two levies for any one year should not in the aggregate exceed one per cent, on the valuation. For instance, suppose that in 1875 the county commissioners levied a tax of only five mills on the dollar for the current expenses of that year, and suppose that such tax paid only one-half of the current expenses of that year—then we can see no good reason why the county commissioners should not be allowed in 1876 to levy another tax of five mills on the dollar to pay the other half of said current expenses of the year 1875. And we would not think that this last-mentioned levy would in any manner interfere with the power of the commissioners to levy taxes for the current expenses of the year 1876. Now while we would think that the plaintiff’s petition stated facts sufficient to constitute a cause of action for enjoining the collection of a portion of the taxes mentioned therein, still we do not think that it stated facts sufficient to constitute a cause of action for enjoining the collection of said 18-mill tax. The petition did not attempt to state or show what or how much tax had been previously levied on or for any one of said previous years to pay the current expenses of such year. And hence it did. not show that the commissioners did not have the power to levy said 18-mill tax, or at least the main portion of it. And if they had the power to levy any portion of it, the plaintiff would have no right to enjoin the collection of the whole of it. The decree of the court below was given upon the petition alone without any evidence being introduced. This was proper enough so far as the petition stated facts sufficient to authorize the judgment; for the defendants were in default for want of answer. But so far as the petition was defective, or did not state facts sufficient to authorize the decree, the decree was erroneous; and this would have been so even if evidence had been introduced, unless introduced by the consent of both parties, for there was no issue in the case requiring or authorizing the introduction of any evidence. All the facts stated in the petition were admitted by the default. But the default did not admit anything not stated in the petition. The decree of the court will be reversed, and cause remanded . for further proceedings in accordance with this opinion. All the Justices concurring.	[ -10, -18, -36, -68, 104, -32, 58, -77, -54, -93, -95, 119, 109, -46, 0, 123, -14, 61, 117, 106, -60, -73, 103, 99, -70, -77, -35, -41, -15, 79, -28, -44, 8, 49, 74, -107, 102, -26, 69, -40, -58, 1, -87, -51, -39, 64, 48, 109, 115, 11, -15, 2, -21, 42, 25, -29, 105, 44, 89, 43, -112, -15, -74, -123, 91, 14, -111, 119, -120, -61, -24, 46, -104, 17, 64, -24, 123, -90, -122, 84, 13, -87, 9, 118, 39, 1, 37, -17, -80, -120, 46, -45, -99, -25, -46, 120, 98, 10, -98, -99, 116, -110, -25, 126, -28, -123, -107, 44, 1, -114, -46, 51, -113, -72, -120, 82, -57, -85, 48, 113, -57, -14, 93, 103, 48, 27, -57, -39 ]
The opinion of the court was delivered by Brewer, J.: This was an action in which an attachment was issued, and levied upon the property of the defendants. The grounds of the attachment are thus stated in the affidavit therefor: “That the said defendant Jesse Evans is a non-resident of the state of Kansas, and that said cause of action arose wholly within the limits of the state of Kansas, and that said defendants are about to remove their property, or a part thereof, out of the jurisdiction of this court with the intent to defraud their creditors.” A motion was made upon affidavits to vacate the attachment. This motion was sustained, and this ruling of the district court is the error complained of. As the testimony was all in affidavits, it comes before us in substantially the same manner as before that court. And the question presented for our consideration is one of fact, and that is, whether the charges in the affidavits for attachment are sustained by the testimony. And it seems to us that so far as the non-residence of the defendant Evans is concerned, it is clearly sustained. The principal testimony for the plaintiff is the following affidavit, which is signed and sworn to by eleven witnesses: {Title, and Venue.) “The undersigned [naming the affiants,] being duly sworn, upon their oaths say, that they are each acquainted with Evans and Nelson, the defendants in the above cause; that on or about the 10th day of August 1876, and at different times at or near Sun City, Kansas, Charles Nelson, one of the defendants in the above cause, said in the presence and hearing of said affiants, that it was his intention to remove all the cattle from this county, so that if anything happened they would have no hold whatever upon him, and that he did not intend to keep said cattle in said county, but intended to remove them for the purpose above stated; that the said Charles Nelson at different times in the said county of Barbour, Kansas, and at or near Sun City, made said statements in the presence of said affiants, and other statements of like effect; and that said Jesse Evans’ residence is in the state of Texas, and was at the time of the commencement of this suit, and he is now a resident of said state of Texas; and that he repeatedly said, in the presence and hearing of affiants, near Sun City, Barbour county, Kansas, in the month of May 1876, that his family were residing in said state of Texas, and that he would move his family into Barbour county if they had good school accommodations near here, and that his family were in the state of Texas, residing there; and that said defendants said that they would dispose of and remove their property before they could get any hold of them in any of these cases; and that the said Evans was an actual and bona fide resident of Texas at the time said defendant Nelson made said statements, and has been since that time, and that they could do nothing with them here. Affiants say they are all residents of Barbour county, Kansas. Affiants say that said statements were made in the presence and hearing of these affiants; and each of said defendants said in hearing and presence of these parties, about the month of May or August 1876, that if anything came up, or if any suits were to be commenced, they would remove their cattle or dispose of them so as to defeat any action that might be commenced against them.” The strongest counter testimony is the affidavit of the counsel of defendant Evans, as follows: (Title, and Venue.) “James E. Whitelaw, being sworn, says, that he is counsel for Jesse Evans, one of the above-named defendants, and knows that he is a resident of the state of Kansas; that the said Jesse Evans has bought and entered a domicile and improved a homestead in Barbour county, Kansas, and is now in the state of Texas for the purpose of bringing his family into and permanently residing in said state of Kansas.” There are some affidavits more' or less clearly tending to show an intention on the part of Evans to remove to Kansas; but that it was the intention merely, not as yet carried into effect, is shown. Now in order to accomplish a change of residence, there must be not only the intention to change, but the fact of removal. Neither is sufficient without the other. (Ballinger v. Lantier, 15 Kas. 608.) Plence the attachment should have been sustained as to Evans upon the ground of non-residence. Upon the other charge, which affects both defendants, the plaintiff’s case is contained in the affidavit quoted. • The defendants file the affidavit of eleven persons showing acquaintance with defendants, and stating positively that defendants have no intention of removing their property, or any part thereof—the affidavit of nine other parties, substantially corroborating these statements — and the affidavit of still four others, tending to show a financial standing sufficient to preclude the idea of any desire or attempt to escape responsibility by a disposition of property. We cannot see that there is such a clear preponderance, if indeed there be any, as would justify a reversal of the ruling of the court in this respect. The case will therefore be remanded, with instructions to sustain the motion and vacate the attachment so far as the defendant Nelson is concerned, and to overrule it as to the other defendant. The costs of this court will be divided. All the Justices concurring.	[ -16, -24, -23, 31, 10, 96, 42, -102, 50, -93, 36, 83, -31, -54, 4, 113, 98, 13, 85, 120, 68, -77, 71, 73, -46, -13, 72, -59, -79, 77, -28, -44, 77, 52, 106, -43, 102, -56, -59, 92, -50, 1, -119, -20, -45, -56, 48, -25, 22, 75, 97, -113, -5, 42, 61, -61, -19, 44, -53, -83, 112, 113, -101, 31, 93, 2, -111, 38, -102, 69, -24, 46, -104, 49, -127, -24, 114, -74, -122, 116, 101, -119, 40, 118, 98, 1, 61, -49, -88, 8, 78, 63, -97, -90, -112, 89, 11, 9, -98, -99, 54, 16, -121, -4, -29, 5, 29, 108, 6, -53, -42, -73, 15, 56, -102, 67, -5, -95, -128, 97, -51, -30, 92, 71, 56, -101, -121, -8 ]
The opinion of the court was delivered by Horton, C. J.: The defendant White was charged on information with the offense of bigamy. The first jury impanneled to try the cause could not agree, and were discharged without finding a verdict; and another jury, before which the cause was tried at the same term, rendered a verdict of guilty. Thereupon the defendant was sentenced to the penitentiary for the term of three years, and he now appeals to this court. I. The serious error alleged is, the action of the court in compelling the defendant to disclose communications between himself and his attorney. Evidence having been admitted concerning a divorce having been granted between the prisoner and his first wife, in the jgtgte of New York, prior to the second marriage, the defendant, testifying in his own behalf was required by the court to answer, on cross-examination, “ if he had not been consulted, or adyised by his counsel in regard to obtaining a copy of such decree.” Objection was duly made to the question on the gro^hd that the communications between counsel and client were privileged; but the court overruled the objection, and in so doing committed material error. The defendant in fully answering the question gave the advice of one of his lawyers to him. The statute provides that an attorney shall be incompetent to testify concerning communications made to him by his client in that - relation, or his advice thereon, without the client’s consent. This statute would be of no utility or benefit, if the client could be compelled, against his consent, to make such disclosures. It would be absurd to protect by legislative enactment professional communications, and to leave them unprotected at the examination of the client. In such an event, in all civil actions, the confidential statements of client and counsel would be exposed, and likewise the same would occur in all criminal actions where the defendant should testify. The authorities are otherwise. The true view seems"/ to be, that communications which the lawyer is precluded/ ¡from disclosing, the client cannot be compelled to disclose. . \|This privilege is essential to public justice, for did it not ' ¡exist no man would dare to consult a professional adviser,. ¡with a view to his defense, or to the enforcement of his rights. Whar. on. Ev., § 583; Hemenway v. Smith, 28 Vt. 701; Carnes v. Platt, 15 Abb. Pr., (N.S.) 337; Merrit v. Morgan, 21 Wend. 467; Williams v. Fitch, 18 N. Y. 546-550; Britton v. Lorenz, 45 N. Y. 51-59; Bigler v. Regher, 43 Ind. 112; 1 Greenl. on Ev., §§ 236-240. It is urged against a reversal of the judgment that the question might have been answered by “yes,” or “no,” and that the advice or conversation testified to was not veiy material, and could not have been prejudicial to the rights of the defendant. We answer that the district court violated a very important rule of evidence, and forced the disclosure of privileged communications in a criminal case where the liberty of the defendant was at stake; and we will not stop to weigh the effect of the answer, or determine how , far the rights of the prisoner were sacrificed. It is very iru- • portant to public interests that the purpose of the statute as to such communications should be maintained in all its rigor. 1’t is the best rule. Obsta prinaipiis. If a client sees fit to be a witness, be makes himself liable to a full cross-examination. But in this case the defendant did not, in his direct \ examination, refer to his counsel, or any conversation with, > or advice from them; and the question was inexcusable. ! This conclusion disposes of the case in this court, but as some other questions are presented in the briefs of counsel, we briefly give our views of two of them which may upon a new trial again demand the attention of the district court. II. Error is alleged in the discharge of the jury on the 4th of May 1877, from further consideration of the cause, in the absence of the defendant and his counsel. It appears that the jury, in the charge of the bailiff of the court, were out deliberating in the case after the cause had been duly submitted to them fourteen hours—from four o’clock, p. M. of May 3d to six o’clock, A. M. May 4th—and the record shows that they were discharged because it appeared to the court that the jury could not agree. While it is true that the court should not have had the jurors called into the court-room and discharged in the absence of the defendant and his counsel, the error committed thereby was 'an immaterial one, and for which this court would not reverse the judgment. Neither should the motion, nor the plea in bar filed by the defendant have been sustained on account of such action. The irregularity of the court consisted in taking action in the absence of the prisoner, and his counsel, not in the fact that the jury were discharged after it had been made to appear to the court that they could not agree upon a verdict, and after a finding and entry of this fact were duly made a matter of record. The court had a right to discharge the jury after they had been kept together until it satisfactorily apppeared that there was no probability of their agreeing. Gen. Stat. ch. 80, civil code, §281; and ch. 82, criminal code, §208. In the case of the United States v. Perez, 9 Wheaton, 579, it was held that the court had the right to order the discharge of the jury; and the security which the public have for .a faithful, sound and conscientious exercise of this discretion rests in this, as in other cases, upon the responsibility of the judge, under his oath of office. And it is held by all the federal courts, and the courts of Massachusetts, New York, Illinois, Kentucky, Mississippi, Iowa, and some other states, that where the jury have deliberated so long without finding a verdict as to preclude a reasonable expectation that they will agree, unless compelled to do so by famine or exhaustion, they may be discharged, if the record shows the necessity for such action, without the consent of the defendant, and the prisoner be tried by another jury. In The State v. Vaughan, 29 Iowa, 286, it was held in a case very similar to this, that the defendant should have been present at the time the court discharged the jury, but as the defendant if present could only have objected to the action of the court, and since such objection would and must have been unavailing, no prejudice could have resulted from his absence, and hence such action of the court would not operate to reverse the case, or discharge the prisoner. III. As tending to prove the second marriage of the appellant, and that it was celebrated in Wilson county, the state offered in evidence, against the objections of the appellant, the records of the probate court of Wilson county, containing a copy of the marriage license issued Feb. 25th 1877, by the probate judge of said county to the appellant, and authorizing him to be joined in marriage to one Miss Martha F. McGray, together with the copy of the return indorsed on the license, showing that the marriage was solemnized in said county on the 27th of February ■ 1877 by one James A. Hunter. The law makes it the duty of the probate judges to correctly record such licenses, and returns, and provides a severe penalty for neglecting so to do; and further provides that the books of record of marriage licenses kept by -the probate judges of the several counties shall be evidence in all courts. Gen. Stat. 561, ch. 61, §§ 6, 7, and 11. As the probate judge of Wilson county produced the books of record of his office, and duly identified the same, the court properly admitted the records in evidence. The law seems to have been strictly complied with, and as the original records were introduced, no copy thereof was needed, nor was any certificate or seal of the probate judge necessary to be attached thereto to make them admissible as evidence. Neither was the return of the person performing the marriage ceremony invalid, because it did not show on its face that the person whose name was subscribed to it was a person authorized by the statute to perform such ceremony. The defendant should have been identified as the person to whom the license was issued to make the same admissible, if he obtained it in person. For the error committed in the action of the court in compelling the disclosure of the communications between the defendant and his attorney, the judgment is reversed, and the action remanded for a new trial. All the Justices concurring.	[ 48, 126, -35, -66, 8, 96, 58, 24, 80, -85, -89, 115, -19, -38, 4, 121, 113, 57, 84, 107, -60, -74, 23, 99, -10, -13, -78, -43, -79, -50, -25, -35, 76, 48, -62, -43, 102, 74, -61, 84, -114, 7, 10, 116, -40, 16, 48, 95, 82, 75, 33, -34, -29, 46, 30, -54, -56, 40, 74, -67, 80, -111, 13, -99, 73, 54, -77, 38, -72, 39, -8, 46, -104, -79, 1, -23, 115, -106, 22, 116, 79, -119, 61, 98, 98, 1, 77, 97, -48, -127, 47, 127, 13, -89, -112, 64, 73, 109, -66, -99, 97, 48, 35, -6, 120, 28, 57, 100, 9, -113, -110, -111, -49, 126, -100, -37, -29, -93, 16, 81, -59, -32, 77, 115, 115, -101, -114, -26 ]
The opinion of the court was delivered by Valentine, J.: This was an action commenced in a justice’s court, and after trial and judgment it was appealed to the district court, where it was again tried, and on such trial judgment was rendered in favor of the plaintiff, Montgomery Carter. The defendant, Harrison Berry, as plaintiff in error, now brings the case to this court. The plaintiff below set forth in his bill of particulars two causes of action. We think there was no misjoinder of such causes of action; but even if there was, still, as the question is raised for the first time in this court, no error was committed by the court below in adjudicating upon both of said causes of action. The first cause of action was founded upon a written instrument. The plaintiff did not furnish a copy of' said written instrument with his bill of particulars, nor did he introduce either the original or a copy thereof in evidence. . But he alleged in his bill of particulars that the original was lost, and on the trial he sufficiently ° , 7 _ proved its loss, and then proved the contents thereof by parol evidence. No objection was made, in the court below, to the introduction of' said parol evidence, and hence of course no error was committed in permitting it to go to the jury. Said written instrument was a contract made and signed by the parties to this action, and by several other persons. It was in substance as follows: Each signer was to keep up his own cattle, and prevent the same from trespassing upon or injuring the crops or hedges of any one of the other signers, for the period of three years; but in case any iniury should occur within that time by reason of the cattle of any one signer trespassing upon the cr0pS 0r hedges of any other signer, and in case the parties themselves could not agree upon the amount of the damages sustained, then the question as to the amount of such damages was to be submitted to arbitrators consisting of three of the signers to said written instrument—each party choosing one of such arbitrators, and these two a third, and the decision, of the arbitrators was to be final between the parties. We know of no reason why such a contract should not be valid and binding. The defendant’s cattle trespassed upon the plaintiff’s wheat crop, and injured it. The wheat stood growing in a field around which no fence or other lawful inclosure existed. But if said contract was valid and binding, and we think it was, it made no difference whether said field was fenced or not. The plaintiff, after driving said cattle from his wheat-field to the defendant’s premises, demanded of the defendant damages for the injury which he (the plaintiff) claimed that the cattle had committed, and he had sustained; but the defendant refused to pay any damages; he said that he would not be bound by said contract, and that if the plaintiff got anything out of him it would be by law. defendant himself testified on the trial—“I told plaintiff that I had consulted with attorneys reference £0 sai(J contract, and that I would not recognize it, as others had not recognized it.” The plaintiff did not propose to appoint arbitrators under the contract; and under the circumstances we do not think that he was required to do so. It would have been an idle and useless ceremony to propose an arbitration under a contract which the defendant refused to recognize. The defendant, by refusing to recognize the contract, waived his right to an arbitration, and at once gave authority to the plaintiff to sue him in any court having the requisite jurisdiction, for the damages which plaintiff had sustained. The defendant, Berry, offered to prove on the trial, that plaintiff’s cattle had trespassed upon his crops; but the plaintiff objected, and the court sustained the objection, The defendant (plaintiff in error) now claims that this ruling of the court below was erroneous. "We do not think however that it was erroneous. The defendant did not inform the court below for what purpose he offered to introduce said evidence, and he had no bill of particulars or other pleading on file (for he had filed none) from which his purpose might be ascertained or inferred. But we would think said evidence was incompetent for any purpose. It was certainly not sufficient to show that the parties had by mutual consent rescinded said contract, or waived its terms. The contract itself contemplated that there would be trespasses, and provided a way for settling the damages caused thereby. Each party had a right under the contract to recover damages for trespasses committed by the cattle of the other party, and each party had a right to have these damages determined in a particular manner. And neither party lost his rights under the contract by permitting his cattle to trespass upon the crops of the other party. Therefore, as mutual trespasses would not of themselves and could not of themselves revoke or destroy the contract, then said evidence could have been relevant only for the purpose of establishing a counterclaim, or set-off. But it was not sufficient for that purpose. A counterclaim or set-off is necessarily a cause of action in and of itself, and in favor of the defendant and against the plaintiff; and a set-off must be a cause of action arising upon contract, or ascertained by the decision of a court. A trespass disconnected with contract could not be the subject of set-off. But the defendant’s evidence did not even prove'a cause of action of any kind. It did not prove or tend to prove that the defendant’s crops were fenced, or that the plaintiff drove his cattle upon the defendant’s crops. Nor did it tend to prove any other contract than the one we have already mentioned. Now under that contract the defendant .did not have either a counterclaim or a set-off. Under that contract it was not only necessary that the defendant’s crops should have been injured by the plaintiff’s cattle, in order to give the defendant a cause of action, but it was also necessary that the defendant should have been ready and willing to have his supposed damages adjudicated under the contract by arbitrators, and that plaintiff should have been unwilling to have such damages so adjudicated. Now there is no pretense that the defendant was ever willing, or that the plaintiff was ever unwilling, to submit any question of damages to arbitrators according to said contract. Indeed, the defendant wholly ignored the contract, and refused to recognize it. This is shown by the testimony of the defendant himself while on the witness-stand. If the defendant has really sustained any damage by reason of the plaintiff’s cattle trespassing upon his crops, or hedges, he may hereafter offer to submit the question of damages to arbitrators, according to the contract, and then, if the plaintiff refuse, the defendant will have a cause of action against the plaintiff. But from the evidence he has no such.cause of action now. The judgment of the court below will be affirmed. All the Justices concurring.	[ -78, 122, -16, -115, 10, 96, 42, -102, 65, -95, 39, 83, -23, 83, 20, 97, -21, 45, 80, 106, 94, -74, 7, 64, -14, -13, -47, -43, -79, 111, -18, 87, 12, 36, -62, 85, -26, -62, -63, -36, -50, 36, 9, -4, -40, 16, 48, 121, 86, 75, 97, -113, -13, 38, 29, 71, 105, 40, 105, 45, -15, -15, 14, 13, 93, 18, -77, 102, -98, 71, -54, 62, -104, 49, 9, -8, 122, -90, -124, -44, 45, -87, 8, 102, 102, 32, 77, 79, 24, -120, 39, 95, -115, -90, -108, 88, 35, 0, -66, -99, 54, 80, -121, 126, -7, 21, 28, 40, 5, -54, -44, -93, -113, 58, -110, 67, -21, -93, 48, 113, -49, -22, 89, 101, 48, -109, -41, -41 ]
The opinion of the court was delivered by Brewer, J.: This was an action to restrain the collection of taxes, and the case turns on the action of the commissioners in raising the assessment of plaintiff’s property. The company received notice of the meeting of the commissioners, and appeared. The finding of the court as to such action is in these words: “Said increase was made upon the personal knowledge of the members of the board of equalization, and upon their statements made outside of said meeting to each other, but at previous meetings, and upon the returns of plaintiff for previous years, showing a much larger assessment continuously from 1870 to 1875, but there was no evidence of any kind introduced a't the meeting of said board on the 19th of July 1875, and nothing was done at. said meeting of said board except what is shown by the minutes of said meeting, which are recorded in the records of the board of county commissioners of said county, and a copy of which minutes is attached to the petition in this case, marked “BB;” and the members of said board at said meeting made no statements as to the value of any of said property, nor will said returns of plaintiff for previous years introduced in evidence at said meeting.” So much of the minutes referred to as bears upon the question is in these words: “Agreeable to the request of the board, the K. P. Railway Company represented itself at this meeting by its agent, Mr. Colton. The board proceeded to examine the return of property as made by the Kansas Pacific Railway Company for the purpose of assessment. Mr. Colton answered all questions put to him relating to the returned valuation of the property of said" K. P. Railway Company, and asserted that in his opinion the valuation as returned by the officers of the aforesaid company was a true and correct valuation of the property owned by said company, and required by law to be listed for the purposes of taxation. “Mr. Watson moved to raise the assessment of track, roadbed, right-of-way, ties, and iron, from the valuation as re turned by the K. P. Railway Company to $7,500 per mile, which motion was lost—Mr. Phillips and Mr. Keach voting nay. “Mr. Watson then moved it be raised to $7,000 per mile, which was also lost—Messrs. Phillips and Keach voting nay. “Mr. Watson then moved it to be $6,500 per mile, which was carried—all voting yea.” Upon this counsel for plaintiff in error state in their brief: “Were these proceedings in conformity with the statute? If the functions of the county board were in the nature of assessment, we concede they could act on their own knowledge; if judicial in their nature, they could not. The knowledge of the court is one of the kinds of evidence, but one that is restricted by law within certain limits, which are usually described as comprising matters of which a court takes judicial notice, as of officers’ signatures, seals of court, laws, etc., etc. Beyond those limits the court cannot act on facts which it knows to be true, unless testimony or extraneous evidence is submitted to the same effect by one of the parties in due legal form.” Accepting this statement as correct, and we think that the action of the county board must be sustained. The proceedings before the county commissioners were not judicial, but in assessment. Section 65 of the tax law under which these proceedings were had, provides simply for the correction of an assessment. It prescribes notice to the taxpayer as a condition of valid action; but such notice does not turn the proceeding from one in the nature of an assessment, into a judicial inquiry. Indeed, unless the legislature had prescribed notice, it is doubtful whether any were essential. Correcting an assessment, is no more of a judicial act than making the assessment originally. True, it involves a determination ; but so does almost every political or executive act. But it is not a judicial determination. The most that can be said is, that it is quasi judicial. The case of The Auditor v. A. T. & S. F. Rld. Co., 6 Kas. 500, is directly in point. There it was held that appeal would not lie from an original assessment to this court, because such assessment was the exercise of a legislative power. The county board, sitting as a board of equalization of real-estate assessments, raises the valuation of some tracts, and lowers that of others. It thus corrects the assessments. But is it then acting in a judicial capacity? Clearly not. What difference between its action then, and in a case like the present? Each is merely the correction of assessments—the one of real, the other of personal property; the,one upon general notice by advertisement, and the other upon direct and personal notice to- the individual. In each case testimony may be taken, but the proceeding is not invalidated by a lack of it. This question was not raised in the case of Lappin v. Comm’rs Nemaha County, 6 Kas. 403, and that case is not therefore authority against the views herein expressed. This disposes of the case. As no tender was made of amount unquestionably due for taxes, it is unnecessary to consider any matter of alleged mistake. The judgment will be affirmed. All the Justices concurring.	[ -14, -22, -67, -33, -22, 96, 42, -104, 104, -15, -90, 83, -87, -39, 17, 59, -10, 13, -15, 104, -58, -77, 83, -22, -110, -13, -5, -51, -71, 76, -28, -42, 76, 48, 10, -75, 70, -64, 69, 28, -50, 14, -87, -56, -40, 96, 52, 107, 118, 75, -111, -54, -5, 40, 24, -29, 73, 44, -1, -87, -112, -7, -78, -105, 95, 22, 17, 96, -100, 71, 64, 62, -104, 49, 72, -24, 127, -90, -122, -12, 5, -103, 13, -26, 102, 33, 53, -17, 42, -120, 14, -46, -115, -25, -74, 88, 66, 3, -106, -99, 84, 66, 71, 126, -26, 5, 29, 60, 5, -49, -92, 51, -105, 46, -102, 15, -49, -95, 48, 97, -59, -94, 95, 102, 50, 27, -113, -84 ]
The opinion of the court was delivered by Valentine, J.: This was an action to perpetually enjoin the collection of a certain tax. The facts of the case are substantially as follows: On the 1st of August 1871, at an election held for that purpose the electors of St. Marys township voted to issue $42,000 of the bonds of said township to build a bridge across the Kansas river. According to the election proclamation, and the order of the township officers submitting the question to a vote, the bonds were to be issued to the person or company building the bridge, in sums of $100 each, bearing ten per cent, interest, the interest payable annually at the township treasurer’s office; they were to run twenty years, and were not to be issued until the bridge was completed. On the 25th of said August, the King Wrought-Iron Bridge Manufactory and Iron Works, a corporation, (which for convenience we will call the Bridge Company,) entered into a contract with the township officers to furnish all the materials and build the bridge for $39,100 in the bonds of St. Marys township at par; the bridge to be completed by the 25th of December 1871, which time was afterward extended by agreement to the 1st of February 1872; and it was completed and accepted by the township officers on the 16th of said February. On the 11th of September 1871, thirty-six square miles of the territory of St. Marys township, including the land of the defendant in error, were duly detached therefrom by the board of county commissioners, and formed into Emmett township, leaving about thirty-six square miles in St. Marys township. On the 4th of January 1872, the treasurer and clerk of St. Marys township made out, signed and delivered to the Bridge Company $40,000 of the bonds of said township. In exchange for $900 of said bonds they took the Bridge Company’s note for that amount. Each of said bonds was for $100, payable in ten years, bearing ten per cent, interest, payable in New York, and dated August 1st, 1871. On the 8th of January 1872, and while the said $40,000 of bonds were outstanding, the said township officers, at Topeka, Kansas, made out, executed and delivered to the said Bridge Company $40,000 more of the bonds of St. Marys township, each bond in the sum of $1,000, payable in twenty years, bearing ten per cent, interest from date, and dated back to the first day of August 1871, with interest coupons attached, the interest payable semi-annually in New York; and the Bridge Company agreed to return within fifteen days, and did return to the said township officers fifteen days thereafter, the first-mentioned bonds, delivered on the 4th of January, and the same were destroyed. A tax of 11J mills on the dollar for the year 1873 was levied on the.land of the defendant in error and other lands situated in Emmett township, to pay interest on the last-mentioned $40,000 of the bonds of St. Marys township, issued on the 8th of January 1872. Said tax was levied exclusively on real estate in Emmett township, notwithstanding there was and is personal property in said township liable to taxation, and taxed therein for other purposes, amounting to over $30,000 in value. This action was commenced on the 9th of January 1874, in the district court of Pottawatomie county, by defendant in error, to enjoin the collection of this tax. It was tried at the August Term 1874, of said court, upon an agreed statement of facts, substantially as above, and judgment was rendered for the defendant in error (plaintiff below,) declaring the tax illegal, and perpetually enjoining its collection; and the defendant below as plaintiff in error now brings the .case to this court. We shall assume that said bonds are valid, and that they are binding obligations upon St. Marys township; and with this assumption, is said tax legal and valid ? According to the decision rendered in the case of Comm’rs of Sedgwick County v. Bunker, 16 Kas. 498, 503, it is not. As will be perceived from the foregoing facts, said bridge was not completed, nor were said bonds due or issued, until some time after said Emmett township was separated from St. Marys township and duly organized; and therefore, according to said decision, no taxes can be imposed on any property situated in Emmett township, by virtue merely of the act of the legislature of 1873, “relating to taxation on the change of boundary lines,” (laws of 1873, page 267,) to pay anything that may be due on said bonds. But counsel for plaintiffs in error desires us to reconsider that decision. He claims that the legislature not only had the power to pass the act which they did pass, which we admit, (Comm’rs of Ottawa Co. v. Nelson, just decided, ante, 234,) but that the act actually applies to this case so as to make said tax legal and valid. A portion of his argument reads as follows: “In order to illustrate the operations of this act under a theory of construction different from the one now insisted upon by me, take this case: On the first of August 1871, an election was duly held in St. Marys township for the purpose of determining whether the officers of that township should be authorized to contract for the construction of a bridge across the Kansas river at some point in the township, and issue the bonds of the township in payment therefor. The election resulted in favor of building the bridge and issuing the bonds; and in pursuance of the authority thus granted, the township Officers did, on the 25th of August 1871, duly enter into a contract for the construction of the bridge and for issuing the bonds. Now this proceeding created a liability to pay these bonds. It made a debt against all the territory that then constituted the territory of St.Marys township; and on the 25th of August, when this liability was incurred, a very large proportion of the territory now included in the townships of Belvue and Emmett constituted a part of the township of St. Marys.- So we find that this debt was created by the action of all the people then included in St. Marys township. It was created for the benefit of all the people and property in that township, as then constituted; not only this, but the debt was so contracted upon the faith of the value of all the property in the township as then constituted. It is unquestionably true, that the people and the property now included in that portion of the townships of Belvue and Emmett were equally benefited by the building of the bridge as the remainder of the old township. This being, so, it is clear that this detached territory ought to bear its share of the burden imposed in obtaining that benefit, and especially so when that burden was imposed by the action of those who were then residents and property-owners on such detached territory. Good conscience and equity require such a construction of this statute as will fairly apportion this burden so voluntarily assumed; and the legislature undoubtedly intended that the law should be so understood and enforced. It would be a gross wrong to the old township, and a glaring outrage upon public creditors, to establish by statute or judicial decision the theory that the inhabitants of a part of a township may voluntarily assist in contracting debts or incur obligations of this kind for their own benefit, and so soon as the burden becomes onerous to discharge their property from this self-imposed liability by being cut off from the old township, thus imposing the whole’ of the burden upon the old territory and property, and without the assumption of any corresponding obligations of the new township to which it may be attached. This would be grossly inequitable and unjust, and the legislature cannot be presumed to have intended the establishment of such a harsh and unfair rule.” The foregoing would be a good argument to present to the legislature; and, if the terms of the statute were really doubtful or ambiguous, it would be a good argument to present to us. The inequity of the law as it is, and the equity of such a law as the counsel would have this statute to be, are ably set forth in the foregoing argument. But we do not consider the terms of said statute as doubtful or ambiguous. They clearly do not apply to the present case so as to make said tax valid. "Where territory is detached from a county, or township, said statute would authorize the taxing of said detached territory to pay prior bonded indebtedness of such county or township only in cases “wherein any bonds shall have been previous to such change of boundary lines legally authorized and issued.” That is, the detached territory is not liable for any portion of such bonded indebtedness unless the bonds were both “authorized and issued” “previous to” the change of boundary lines. Precisely the same legal questions are involved in the case of Charles E. Chandler, plaintiff in error, v. Alfred E. Travis, defendant in error, (now submitted to us,) as are involved in this case; and therefore this opinion will be sufficient for both cases. The judgments of the court below in both cases will be affirmed. All the Justices concurring.	[ -12, 110, -80, -36, -54, -62, 66, -103, 24, -79, -76, 83, -119, 75, 20, 115, -33, 125, 81, 123, -62, -77, 39, -117, -46, -13, -15, -51, -69, 93, -10, -41, 12, 48, 74, -99, -26, -54, 77, 92, -52, -116, -118, -60, -33, 64, 52, 127, 114, 74, 117, -102, -13, 40, 28, -21, -23, 44, -55, 41, 1, -15, -98, -59, 127, 21, -111, 6, -100, -61, -24, 62, -104, 49, 69, -24, 123, -92, -122, -12, 37, -103, 40, 102, 34, 81, -123, -17, -4, -120, 30, -46, -99, -121, 6, 88, 66, 9, -74, -99, 125, 82, -121, 126, -30, 5, 93, 44, 3, -53, -78, -14, 15, 60, -109, 5, -17, 41, 48, 97, -58, 54, 76, 97, 58, 19, -97, -35 ]
The opinion of the court was delivered by Valentine, J.: This was a criminal prosecution for an alleged violation of section 183 of the act relating to crimes and punishments. (Gen. Stat. 357.) Said section reads as follows: “Sec. 183. If any person, lawfully imprisoned or detained in any county jail or other place of imprisonment, or in the custody of any officer, upon any criminal charge, before conviction, for the violation of any penal statute, shall break such prison or custody and escape therefrom, he shall upon conviction be punished by confinement and hard labor for a term not exceeding two years, or in a county jail not less than six months.” The facts of the case, so far as it is necessary to state them, are as follows: The defendant was imprisoned in the county jail of Atchison county, in the custody of the jailor of said county, upon the criminal charge of burglary in the second degree, as defined by section 68 of the act relating to crimes and punishments, (Gen. Stat. 330,) awaiting a trial upon such charge; and while so imprisoned as aforesaid he broke said jail and said custody, and escaped therefrom. Afterward a warrant was duly issued by a justice of the peace of said county for his arrest upon the charge of breaking said jail and custody as aforesaid. Upon such warrant he was duly arrested by the sheriff of said county and a policeman of the city of Atchison, and was hand cuffed and taken before said justice for a preliminary examination, whereupon, without said hand-cuffs being removed, and in the presence of said sheriff and said policeman, and said justice and the county attorney of said county, he waived a* preliminary examination, and was returned to said jail. Afterward he was tried upon the charge of burglary, and was acquitted. The county attorney thereupon filed an information in the district court of said county against the defendant duly charging. him with the offense of breaking said jail and custody, and escaping, as aforesaid; upon which information the defendant was duly arraigned and pleaded .successively as follows: 1st, A plea in abatement, that he was hand-cuffed, and in the custody of said sheriff and said policeman, when he waived said preliminary examination, and therefore that said waiver was a nullity, and that therefore the county attorney had no power to file said information. 2d, A plea in bar, that he had been tried and acquitted on the charge of burglary, and that therefore he could not be tried or convicted upon the charge of breaking said jail. 3d, The general plea of “not guilty.” The county attorney demurred to the first two pleas, and the court below sustained both of the demurrers, and we think correctly. There was no pretense that any means were used with the intent that such means would cause defendant to waive said preliminary examination; no pretense that the defendant had any cause to fear that justice would not be done him, except the mere presence of said officers, and that he was hand-cuffed; no pretense that any wrong was done him, except merely the receiving of said waiver while the defendant was handcuffed; and no pretense that any of these things worked any prejudice to the defendant’s substantial rights on the final trial of the case in the district court upon its merits. We cannot therefore reverse the judgment of the district court rendered upon the verdict of an impartial jury, after a fair trial has been had on the merits of the case in that court, merely because the defendant waived a preliminary examination before an examining magistrate while he was hand-cuffed. The defendant also claims that as he was acquitted on the charge of burglary, therefore that he did not commit the offense of escaping from said jail “before conviction” upon said charge of burglary. We think otherwise. offense, of escaping from said jail, comes, as we think, within the letter and the spirit of the statutes prohibiting escapes. He escaped from imprisonment for an alleged burglary, and had never been convicted of such burglary. His offense therefore comes within the exact letter of the statute, and of that section of the statute under which he was prosecuted. He escaped “before conviction.” His offense also comes within the spirit of the statute. The spirit of the statute, as gathered from sections 167 to 187 of the crimes act, (Gen. Stat. 354 to 358,) is to punish for all escapes from lawful custody. Some of said sections provide for punishing for escapes made from custody in criminal cases; some for escapes made in civil cases; some, where convictions have already been had in criminal cases; and some “before conviction” in criminal cases. And taking said sections all together, and construing said section 183 as we construe it, they provide for punishing for escapes from lawful custody in all cases. If said section 183 is to be construed as the defendant claims that it should be construed, then it would be improper in any case to try a defendant for an escape until after a trial and conviction upon the original charge; for if he should by any means procure an acquittal upon the original charge, or a dismissal of the case, or a nolle pros, to be entered therein, then he would not have been guilty of committing any offense by making such escape. When a party is in legal custody, and commits an escape, we do not think that it depends upon some future contingency as to whether such escape is an offense or not. As to permitting a witness’s name to be indorsed on a criminal information at the time of the trial, and permitting such witness to testify in the ease, see The State v. Dickson, 6 Kas. 209, 219. We do not think the' court below committed any substan tial error in this case, and therefore its judgment will be affirmed. All the Justices concurring. Beporter’s Note.—The peculiar features of the foregoing case of The State v. Lewis seem to justify the inserting here of the “ poetical report ” thereof written by Eugene F. Ware, Esq., attorney-at-law, of Fort Scott, and which he published in the “ Fort Scott Daily Monitor,” of 10th March 1878. Mr. Ware’s “report” is as follows: In the Supreme Court, State of Kansas. George Lewis, Appellant, ads. The State of Kansas, Appellee. [Appeal from Atchison county.] syllabus: Law—Paw; Guilt—Wilt. When upon thy frame the law—places its majestic paw— though in innocence, or guilt—thou art then required to wilt. Statement of Case, by Reporter: This defendant, while at large, Was arrested on a charge Of burglarious intent, And direct to jail he went. But he somehow felt misused, And through prison walls he oozed, And in some unheard-of shape He effected his escape. Mark you, now: Again the law On defendant placed its paw, Like a hand of iron mail, And resocked him into jail — Which said jail, while so corraled, He by sockage-tenure held. Then the court met, and they tried Lewis up and down each, side, (toi the good old-fashioned plan; But the jury cleared the man. Now, you think that this strange case Ends at just about this place. Nay. not so. Again the law On defendant placed its paw— This time takes him round the cape For effecting an escape; He, unable to give bail, Goes reluctantly to jail. Lewis, tried for this last act, Makes a special plea of fact: “Wrongly did they me arrest, “As my trial did attest, “And while rightfully at large, “Taken on a wrongful charge. “I took back from them what they “From me wrongly took away.” When this special plea was heard, Thereupon Tiie State demurred. The defendant then was pained When the court was heard to say In a cold impassive way— “The demurrer is sustained.” Back to jail did Lewis go, But as liberty was dear, He appeals, and now is here To reverse the judge below. The opinion will contain All the statements that remain. Argument, and Brief of Appellant: As a matter, sir, of fact, Who was injured by our act, Any property, or man?-— Point it out, sir, if you can. Can you seize us when at large On a baseless, trumped-up charge; And if we escape, then say It is crime to get away — When we rightfully-regained What was wrongfully obtained? Please-the-court-sir, what is crime? What is right, and what is wrong? Is our freedom but a song— Or the subject of a rhyme? Argument, and Brief of Attorney for The State: When The State, that is to say, We take liberty away — When the padlock and the hasp Leaves one helpless in our grasp, It’s unlawful then that he Even dreams of liberty — Wicked dreams that may in time Grow and ripen into crime— Crime of dark and damning shape; Then, if he perchance escape, Evermore remorse will roll O’er his shattered, sin-sick soul. Please-the-court-sir, how can we •Manage people who get free? Reply of Appellant: Please-the-court-sir, if it’s sin, Where does turpitude begin? Opinion of the Court. Per Curiam : We—don’t—make—law. We are bound To interpret it as found. The defendant broke away; When arrested, he should stay. This appeal can’t be maintained, For the record does not show Error in the court below, And we nothing can infer. Let the judgment be sustained — All the justices concur. [Note by the Reporter.] Of the sheriff—rise and sing, “Glory to our earthly king!” [H. F. W.	[ -16, -30, -11, -65, 42, 65, 42, -72, 18, -109, -28, 115, -23, -56, 4, 107, -69, 127, 84, 113, -63, -73, 39, 97, -14, -13, -39, -43, -77, 79, -26, -12, 9, 112, -54, -43, 38, 72, -57, 92, -118, 5, -88, -48, -48, 0, 36, 121, 67, 10, -75, -113, -13, 42, 20, -21, 41, 40, -55, 45, 16, -7, -4, 31, -37, 68, -93, -90, -76, 7, -16, 46, -104, 57, 1, -24, 115, -106, -122, 116, 79, -85, -83, 38, 98, 33, 29, -49, 36, -104, 47, 51, -99, -90, -111, 88, 107, -116, -98, -99, 126, 20, -122, -8, -25, 38, 57, 108, 0, -113, -80, -101, 77, 48, -110, -5, -21, -91, 48, 113, -49, -74, 89, -9, 120, -101, -114, -12 ]
The opinion of the court was delivered by Valentine, J.: This was an action brought under the act relating to the killing and wounding of stock by railroad companies. (Laws of 1874, page 143.) The first question raised by counsel for plaintiff in error, relating to the jurisdiction of the district court, has been decided and settled adversely to the claim of plaintiff in error by the decisions in the cases of Shuster v. Finan, and Miller v. Bogart, decided at this term, [ante, pp. 114, 118.) The second question raised by counsel for plaintiff in error relates to a supposed variance between the allegations of the petition of the plaintiff below and the proof in the case; and the third question raised by counsel for plaintiff in error relates to a supposed error with regard to the measure of damages. We shall consider the second and third questions together. The plaintiff below, Ireland, alleged in his petition among other things, that the defendant railroad company killed a heifer belonging to him. The proof however showed that the railroad company wounded the plaintiff’s heifer only, and that the plaintiff himself afterward knocked her in the head and killed her. The plaintiff testified among other things as follows: “I knocked her in the head; I did it to stop her suffering. She could not get up, and would .have died any way.” There was no evidence tending to show that the heifer might have recovered from her wounds if she had not been knocked in the head • and the other evidence tends to show that she was very badly wounded. Upon said petition and said evidence the court below allowed the plaintiff to recover, and instructed the jury among other things that if they found that the railroad company hilled the heifer, (and should also find the other necessary facts in the case in favor of the plaintiff,) they should find a verdict in favor of the plaintiff for the full value of the heifer. The jury found a verdict in favor of the plaintiff, and assessed his damages for the injuries done to the heifer at $18, and also found that the plaintiff was entitled to an attorney-fee of $25 for prosecuting the suit. They do not say in their verdict (except inferentially) what the heifer was worth before she was killed; but they attempt to say, and perhaps say it substantially, that she was worth nothing after she was killed. There was no evidence tending to show that she was worth anything after she Avas killed. They also find that the plaintiff killed the heifer by knocking her in the head, but that she would have died from her wounds which she received from the railroad company if she had not been knocked in the head. We think this last-mentioned finding (as well as the others) is sustained by sufficient evidence. The eighteen dollars damages allowed by the jury for the injuries done to the heifer was evidently (from their verdict and from the evidence) the exact value of the heifer. Now under the circumstances of this case Ave think that there Avas no fatal variance between the allegations of the plaintiff’s petition and the evidence, and the plaintiff Avas entitled to recover the value of his heifer. That is, under the circumstances of this case we think that the plaintiff, the court and the jury, were all entitled to consider the case as though the railroad company had actually killed the heifer. And if the railroad company had actually killed the heifer, then the plaintiff would have been, under the statute, entitled to recover her full value, and also to re cover attorney-fees. We therefore think that the court below did not err in these respects. The fourth question raised by counsel for plaintiff in error relates to costs. The plaintiff in error claims that the court below erred in rendering judgment against it for all the costs of the defendant in error, (plaintiff below.) Prior to the commencement of the trial in the court below the defendant company, (plaintiff in error,) offered to confess judgment for twenty dollars and costs. Ireland refused to accept such offer. Afterward Ireland recovered a judgment for $18 as damages for the injuries done to the heifer, and $25 for attorney-fees; total, $43, besides costs. What the attorney’s services rendered prior to said offer to confess judgment were worth, is not shown. But evidently they were worth more than two dollars. Under the circumstances therefore we do not think that the court below erred in rendering said judgment for costs. The judgment of the court below will be affirmed. All the Justices concurring.	[ -14, 126, -43, -81, 42, 96, 34, -102, 69, -96, -89, 119, -19, -61, 1, 107, -26, -67, 85, 43, -42, -77, 87, -30, -77, -45, -77, -59, -79, 77, -26, 86, 77, 34, 74, 85, -26, -22, -63, 124, -114, -100, -85, -20, 123, 64, 60, 120, 86, 79, 49, -50, -21, 38, 28, 71, 41, 46, 123, 109, -64, -7, -86, -123, 125, 2, -79, 38, -100, 35, -54, 46, -104, 53, 8, -4, 122, -76, -122, 84, 41, -87, 12, 102, 103, 33, 29, 79, 96, -104, 47, 94, -115, -89, 16, 8, 43, 13, -106, -99, 52, 80, -121, 126, -2, 76, 29, 44, 5, -117, -106, -77, -17, 38, -102, -45, -21, -89, 18, 113, -52, -86, 92, 101, 122, -101, -113, -106 ]
The opinion of the court was delivered by Horton, C. J.: This was an action to restrain the assignment of certain tax-sale certificates upon a number of lots belonging to the plaintiff in Concordia, and to have the said certificates, and the tax sales upon which they were based, declared void. On the trial, it appeared from the evidence produced by the plaintiff in error that the real estate was sold for the taxes of 1871, that it was subject to taxation for that year, but that certain irregularities existed in regard to the assessment and levy of taxes for that year, and also in the proceedings of the sales. The irregularities consisted chiefly in the assessment of the lots in gross, the levy of taxes in excess of the legal rates, and the want of a sufficient notice of the time of sale. No evidence was offered that the taxes were wholly illegal and'void; neither was it alleged in the petition, nor proven on the trial, that the plaintiff had paid or tendered any part of the taxes. The defendants demurred to the evidence of the plaintiff. The court sustained the demurrer; and we are asked to reverse such ruling. Upon familiar principles, and by the repeated decisions of this court, the plaintiff is not rightly entitled to the relief demanded until he has done that justice, or offered to do it, which he exacts from others. He who seeks equity, must do equity. The action of the court in sustaining the demurrer was correct. (Gulf Rld. Co. v. Morris, 7 Kas. 210; Comm’rs of Leavenworth Co. v. Lang, 8 Kas. 284; City of Ottawa v. Barney, 10 Kas. 270; Challiss v. Comm’rs of Atchison Co., 15 Kas. 49.) To the suggestion of counsel for the plaintiff, that if the court found any of the taxes illegal, the judgment should have been for the plaintiff, conditioned upon his paying the legal tax, not that he had no case in court, we cannot better reply than by using the forcible language of Mr. Justice Miller in Bailey v. A. & P. Rld. Co., C. L. J., vol. 1, 502, that, “Whenever parties come into this court to ask this court to enjoin the collection of taxes, or the collection of part of a tax, if there is any part which they admit to be due or just, or which the court can see in the statement made in the bill ought to be paid, there must be an allegation in the bill conforming to the fact, that they have -paid it, or that they have tendered it; and it is not a sufficient allegation to come and say that ‘ we are willing/ or even that ‘ we have paid it into the court/ because the state is not to be stayed in its revenue, which is admitted to be due, in that way; and a party claiming that he will not pay his taxes, or any portion of them, cannot screen himself during the course of a long litigation from paying that which must be paid, and which everybody can see must be paid, by setting up a contest over that which is doubtful, and which may, or may not, be necessary to be paid.” Upon the trial, the court refused to permit the following question, viz.: “State, if you know, who assessed the real estate in Concordia for 1871?” The witness had previously testified who the assessor was, and from the question an attempt was being made to show that another than such assessor had made the assessment. As no claim was made that the assessment-roll was lost, or had never been filed, and as the records were the best evidence, we do not see the admissibility of the evidence sought to be introduced. The testimony was rejected because the assessment-roll was the better evidence, and the court committed no error in thus holding. The judgment of the district court will be affirmed. All the Justices concurring.	[ -14, 126, -48, -84, 58, -64, 58, -104, 25, -95, -89, 83, -19, -101, 0, 63, -9, 109, 112, 104, -59, -77, 55, 75, -46, -45, -45, -59, 53, -19, -12, -41, 76, 49, -54, -107, -26, 74, -57, 84, 70, -125, -120, -52, -7, 36, 52, 27, 57, 75, 113, -118, -13, 44, 28, -62, -119, 44, 109, 53, -47, -8, -70, 29, 91, 7, 51, 38, -2, 3, -24, -116, -112, 113, 0, -24, 51, -74, -122, 84, 77, -101, 8, 100, 99, 33, 109, -17, -16, -104, 43, -5, 21, -89, 50, 24, 3, 105, -74, -103, 124, 80, 35, -2, -30, -107, -99, 108, 13, -82, -106, -125, -113, 124, -118, 91, -33, -126, 48, 113, -49, -92, 92, 103, 90, -69, -98, -52 ]
The opinion of the court was delivered by Brewer, J.: The question in this case is, as to the validity of an administrator’s sale. Its validity is challenged on two grounds: 1st, the insufficiency of the petition for the sale of the real estate; and 2d, the invalidity of the notice given of the application for order of sale. Passing by the first, we shall notice the second ground of attack. And here it may be remarked, that as these proceedings are attacked collaterally, a want of jurisdiction must be shown, and no mere matters of error are sufficient to invalidate the sale. This is conceded by counsel. Now as to the notice. Section 131 of the administrator’s act of 1859, (Comp. Laws 1862, p. 531,) provides, that “when such petition (that is, the petition for the sale,) and such accounts, lists, and inventories shall be filed, the court shall order that all persons interested in the estate be notified thereof, and unless the contrary be shown on the first day of the next term of the court, an order will be made for the sale,” etc. “Such notice shall be published for six weeks,” etc., “or by ten handbills,” etc., “in the discretion of the probate court.” On the records of the probate court appears this entry: “In Probate Court of Lyon county, January ltd, 1866, January Term. “ In the matter of the estate of Zilpha A. Mickel, deceased, Wm. H. Mickel, administrator. “Now comes said administrator, by Wm. T. Galliher, and files petition asking for an order to sell the. real estate of said deceased to pay the debts of said estate. In consideration whereof, it is ordered, that all persons interested in said estate be notified by publication six weeks in the Emporia News,” etc.; “ that unless the contrary be shown on the first Monday in February of this term of court, an order will be made,” etc. And on 5th February 1866, appears the following: “Now Comes the said administrator, and the petition for the sale of real estate of deceased to pay debts being for hearing, and no cause being shown why said petition should not be granted, after due notice of the proceedings thereof given by publication,” etc., “ and it appearing to the court that there is not sufficient personal property to pay the debts,” etc., “a sale is ordered.” So that this notice was ordered by the court on the 2d of January 1866, at the January term, to be published in the Emporia News for six weeks, that unless the contrary appeared on the first Monday of February of the same term of court, the order for sale would be granted, etc. The first Monday of February was the 5th, and the day when the order of sale was made to the administrator, and under which he made this sale. Upon this counsel argue, that the statute required that the notice if published should be for six weeks, if by handbills they should be put up twenty days before the term at which the' petition was to be presented, and it authorized the probate court in its discretion to cause notice to be given in either manner. The probate court exercised that discretion by ordering the publication in the Emporia News for six weeks. Having exercised that discretion, notice could be given only in the manner ordered, and the notice ordered was insufficient for two reasons: 1st, it was an impossibility for notice to be published for six weeks between January 2d and February 5th, less than five weeks of time actually intervening; and 2d, the notice was of an application to be made at the same when it should have been at the next term. (Probate courts then as now held but four regular terms annually, commencing on the first Mondays of January, April, July, and October respectively.) To this it is replied, that very likely there is a mistake in the date of this order of publication — either that the journal entry was made under a wrong heading, or that the order was in fact made several days before it was entered—and the language of the entry is referred to as evidence of this, for it reads, “Now comes said administrator * * * and files petition; ” and the indorse ment on the back of the petition, as well as entries on another docket, show that the petition was filed on the 9th of December prior. But aside from the rule, that we must take the record as it is, rather than as we think it ought to be, the language of the order is conclusive against any such mistake. It reads, “first Monday in February of this term.” And as the term commenced January 1st, and the order appears of date January 2d, it could not have been made but one day earlier, and “this term” been applicable. Again it is said, that as the petition was filed December 9th, publication of .notice may have commenced immediately; that ample time intervened between the filing of the petition and the order of sale for publication in either manner authorized by the statute; that on February 5th, the probate court found that such publication had actually been made, and approved it, ■ and that this subsequent approval is equivalent to a prior order, and that the recital in the order of “due notice” is a judicial finding, and prima facie evidence of such due notice, and, as the notice itself and proof of publication are gone, conclusive evidence thereof. With this view the order of January 2d may be entirely disregarded, and jurisdiction sustained upon the finding of “duk notice,” and the time of filing the petition. To this it is replied, that a finding of due notice, if a general finding, as this is, is always limited by and construed as referring to the actual notice fqund in the record; that no notice could be given in either manner until the court had first determined which should be pursued; that it did so determine, and that although the notice itself may be gone, yet it must be presumed to have started from and been controlled by the only order in reference thereto found in the record. The question is not free from difficulty, and the members of this court do not agree in their views. The writer of this opinion is inclined to regard with favor the first of the above lines of argument, and to consider the order of sale as beyond successful attack, while the other members of the court yield their assent to the propositions last stated, and hold the order made without due notice, and therefore void. It is essential to jurisdiction of the person that there be notice. A finding of notice is at best but prima facie evidence of notice. If an attempt at notice appears in the record, the finding, if a general one, refers to and is limited by such attempted notice. If that be fatally defective, there is no presumption of notice in other or better way. Where the court determines what kind of notice must be given, no right to give any notice exists until the court- has made its determination. A determination of that kind does not relate back, so as to ratify unauthorized acts of notice. There is in the entry in this case directing notice nothing in terms or effect like a nunc pro tunc order. It operates only in the future; it purports to be only for the future. A notice, without an order prescribing the manner thereof, has no force. If there be an order, the notice must follow the order; and if the order prescribe an impossible or illegal notice, neither order nor notice is of any force, and though the notice be gone the order proves the invalidity of both. Tried by these propositions, the court is of opinion that the order of sale was made without any proper service of notice, and is therefore void. Valle v. Fleming, 19 Mo. 454; Sibley v. Waffle, 16 N. Y. 180. But we are met by the further claim that these proceedings for the sale of the real estate of decedents are proceedings in rem, and that therefore so far as any question of jurisdiction is concerned it is immaterial whether sufficient or indeed any notice was given; that the provision requiring notice is directory, and that no defect therein affects the jurisdiction. Are these proceedings for the sale of the real estate of decedents proceedings in rem? An examination of the authorities discloses a wonderful disagreement. See, among many, the following, holding that they are: Grignon, Lessee, v. Astor, 2 How. U. S. 319; Mohr v. Manierre, 9 Chicago Legal News, 270; Sheldon v. Newton, 3 Ohio St. 494, containing a strong argument by Ranney, J.; Benson v. Ally, 8 Ohio St. 604. And these, the contrary: Gibbs v. Shaw, 17 Wis. 197; Good v. Norley, 28 Iowa, 188, opinion by Beck, J.; Morris v. Hoyle, 37 Ill. 150; Sibley v. Waffle, 16 N. Y. 180. The argument in favor of the affirmative is in brief, that the administrator represents the estate, and has its property in his possession; that when the court appoints him it gives him possession and charge of all of decedent’s property; that it is optional with the legislature to provide for' the sale of the personal or the real estate rirst; that in certain instances it has authorized the prior saie of the real estate; (Comp. Laws, 531, §133;) that a sale of the personal estate is made without notice of an application for an order, and even without any order, and that the same provision might have been made for the sale of the real estate; and that as the administrator has possession of the real estate as of other property, notice to other parties when required is to be regarded as directory, but as in no manner affecting the jurisdiction of the court in ordering the administrator to sell the property he has in his possession. On the other hand it is said, that the administrator has no possession of the real estate except when specially ordered by the court; that the title and possession, and right of possession, pass immediately to the heirs, subject to be divested only by the special order directing a lease, or sale; that as the heirs have the title, the possession, and right of possession, a proceeding to divest them of these must in the nature of things be adversary; that it is of ancient law that the title and possession of real estate passes to the heir, of personal to the executor or administrator; that an order to the latter to sell personal property may well be a proceeding in rem, as it is an order for the sale of that of which he has both the legal title and the possession, while an order to him to sell real estate, of which he has neither title nor possession, must in the nature of things be, as to those holding both title and possession, adversary. We do not care to enter into any lengthy discussion of this question, which has been so fully discussed in the cases we have cited, as well as in many others. We shall content ourselves with expressing our adherence to the views of those courts which hold the proceeding adversary, so far as the heirs are concerned, and notice to them jurisdic tional. Briefly, we ■ may say that the title and possession of real estate pass immediately to the heirs; that it is not sold as of course, but only when necessary to pay debts; that until that fact is judicially established, the heirs may not be divested of their title, and before one is divested of title to property he ought to have his day in court; that the appointment of an administrator does not bring the heir into court; that he must be' brought in, if brought in at all, by special notice; that as the heir ought to have notice, the ■ legislature has required notice; and that a requirement so wise and just ought not to be weakened or annulled by judicial construction. Further, we may add, that the waste of estates in settlements is proverbial, and that provisions checking hasty sales, and requiring notice to parties interested, tend to diminish the waste, and their salutary effect ought not to be destroyed. While therefore judicial sales ought to be upheld as against’ any mere errors, yet it is not too much to require purchasers at such sales to examine the records so far as to see that the adverse parties received proper notice of the proceedings, and had therefore the opportunity to contest them. For the error above indicated, and without pursuing this discussion further, the judgment of the district court must be reversed, and the case remanded for a new trial. All the Justices concurring.	[ -15, 108, 92, -100, 58, 96, 98, -72, 98, -77, -91, 83, -23, 26, 25, 45, 51, 45, 117, 105, -58, -77, 83, -86, 86, -13, -39, -43, 55, 77, -28, 87, 76, 32, 10, -107, -58, -30, -59, -44, -50, 35, -119, -20, -39, -64, 48, -69, 30, 75, 69, -82, -29, 45, 25, 82, 8, 44, -7, 53, -48, -72, -69, -99, 127, 6, 18, 36, -40, -121, 72, -86, -80, 49, 0, -24, 113, -74, 22, 116, 39, 9, 8, 98, 107, 3, -115, -17, -32, -120, 15, 90, -107, 103, 54, 89, -30, 40, -98, -103, 53, 16, 3, -2, -26, 5, 88, 44, -115, -118, -42, -75, 15, 58, -102, 10, -21, -123, 56, 113, -51, 38, 92, 67, 49, -101, -114, -16 ]
The opinion of the court was delivered by Valentine, J.: This was a criminal prosecution under section 73 of the act relating to crimes and punishments, (Gen. Sta't. 331,) for robbery in the first degree, The jury found the following verdict, to-wit: “We the jury find the defendant guilty as charged.” The defendant moved for a new trial, upon various grounds. The court in overruling the motion for a new trial used the following language: “While the evidence in the case would not sustain the charge of robbery in the first degree, there not being evidence of violence, putting in fear, etc., yet, as it would, in the opinion of the court, sustain a verdict of grand larceny, the defendant could not be prejudiced in his.rights by the court rendering a judgment for grand larceny.” The court then, after overruling the motion for a new trial, and after other proper preliminary proceedings were had, rendered the following judgment: “ It is now, by the court here, considered, that, said defendant is guilty of grand larceny, and the punishment is assessed at confinement and hard labor in the penitentiary of the state of Kansas for the period of three years.” All the rulings and decisions of the court below were properly excepted to, and the defendant now brings the case to this court on appeal. The court below evidently erred in overruling said motion for a new trial, in finding the defendant guilty af grand larceny, and in rendering said judgment against the defendant. TIle verdict of the jury evidently was intended to be a verdict for robbery in the first degree, ;gut the court below finds that the evidence would not sustain such a verdict; and therefore the court below very properly refused to render a judgment upon such verdict punishing the defendant as for robbery in the first degree. But what should the court have done? We think it should have granted the defendant a new trial as asked for by him. The offense'of robbery in the first degree does not necessarily include grand larceny. The taking of one cent forcibly, may constitute robbery in the first degree, as well as the taking of a thousand dollars, or any other amount. In the present case the defendant was charged with taking bank bills of various denominations, from one dollar to fifty. Now if he had taken one of said bills of the denomination of one dollar, he would have been guilty of robbery in the first degree just as much as though he had taken all the bills charged in the information, and the jury should have found him so guilty. But he would not have been guilty of grand larceny. The verdict of the jury does not therefore establish the fact that the defendant was guilty of grand larceny. A finding that the defendant was guilty of grand larceny is not necessarily included in the verdict. And the court had no right to find the defendant guilty of grand larceny, or of any other offense. That belonged to the jury. The court below also erred in permitting one Scruggs to testify as a witness, over the objections of the defendant. Scruggs had formerly been convicted of grand larceny. and sentenced to imprisonment therefor % A in the penitentiary for two years. And there was nothing showing that the sentence had ever been set aside, or that Scruggs had been pardoned. Scruggs was incompetent as a witness. The code of civil procedure with reference to the competency of witnesses does not apply in criminal cases. The judgment of the court below will be reversed. All the Justices concurring.	[ -16, -22, -80, -66, 10, 96, 35, -104, 25, -95, -74, 123, 105, -54, 4, 105, -14, -35, 84, 97, -42, -73, 7, -63, -78, -77, -47, -60, -73, 91, -90, 117, 13, 48, -54, -43, 102, 74, -63, 84, -114, 4, -88, -63, -62, 8, 36, 42, 102, 26, -15, -114, -29, 42, 30, -45, 41, 40, 91, 61, 120, -71, -86, -57, 93, 21, -93, 36, -98, 7, -8, 46, -104, 49, 0, -8, 115, -74, -122, 84, 77, -85, 13, 102, 98, 1, 85, 79, -72, -120, 63, -9, -123, -89, -112, 88, 97, 12, -106, -35, 101, 16, 6, 118, -25, 20, 25, 108, 19, -97, -80, -109, -83, 60, -102, -6, -5, -93, 48, 113, -50, -94, 76, 85, 89, -109, -97, -43 ]
The opinion of the court was delivered by Horton, C. J.: This action was originally commenced before a justice of the peace, to recover the sum of $192 for damages resulting to Lawson for a breach of a contract on the part of Hanson in failing to cut certain rye and wheat belonging to Lawson in accordance with an agreement existing between said parties. Judgment was rendered in favor of Lawson, by the justice, and after a motion for a new trial was overruled, the case was taken to the district court by a petition in error; and that court having affirmed the judgment of the inferior court, the case is now here for review. The objections to the proceedings of the justice are trivial and unimportant, and none of them justify any lengthy comments. The first complaint made is, that the justice had no jurisdiction of the subject-matter of the suit. A complete answer to this objection is contained in section 1, ch. 88, laws of 1870, p. 181, which prescribes that, “Under the limitations and restrictions herein provided, justices of the peace shall have original jurisdiction of civil actions for the recovery of money only, and to try and determine the same, where the amount claimed does not exceed three hundred dollars.” An action to recover damages for a breach of a personal contract, is a civil action for the recovery of money only, within the statute; and as such is not one of those which justices are prohibited from having cognizance of by the provisions of the justices act of 1868. The justice of the peace had full jurisdiction of the cause. The second complaint made is, that the defendant in error was permitted to prove the price of wheat at a different place than where the damage occurred. Waiving the question whether a new trial can be granted by a justice on account solely of the admission of irrelevant or incompetent testimony, we think no error was committed by the justice in the admission of the evidence excepted to. To establish damages in the case, it was competent to prove the value or worth of the wheat at the place of Lawson at the time of the injury complained of. As it appeared from the answer to the question, as to the worth of wheat, that there was no market for the sale of wheat where it grew, and as Concordia—the county-seat of the county where the case was tried — was the nearest market, it was not improper for the witness to state its worth at that place. Of course, the opposing party had the right by cross-examination of the witness, and by other evidence, to prove the cost of harvesting and trans porting the wheat to Concordia, so that the actual value of the grain at the farm of Lawson could be ascertained. Under the circumstances, the evidence was relevant, and was properly received. It tended to furnish the basis for the measure of damages in the case; and, if not directly, it indirectly tended to prove the value of the grain at the place where it was alleged that Hanson was to cut and harvest the same. The third complaint made is, that the justice accepted the following verdict, viz.: [Title.) “We the jury by our foreman- find for the plaintiff, and assess his damages at $93.50. “Noah H. Eaves, Foreman.” And it is contended, that the form of the verdict was defective, as being the verdict of the foreman only, and not that of the jury. It is also claimed that all the jurors should have signed their names thereto. The first objection is insufficient to reverse the judgment, and the second point is not tenable. After the plaintiff in error refused, on inquiry of the justice, to have the jury polled, no material error was committed in accepting the verdict, although somewhat defective in form. The justice should have had the jury correct it before it was received as the verdict, by striking out the words, “ by our foreman; ” but the failure so to do, under the circumstances, was not prejudicial to the rights of plaintiff in error. The code provides that the verdict shall be written, signed by the foreman, and read to the jury, and the inquiry made whether it is their verdict. The procedure for justices in civil cases makes the provisions of the code applicable to proceedings before justices, where no special provision is made by statute; and as nothing is contained in the procedure before justices as to the form of the verdict, and the manner in which it shall be signed, it is controlled in these respects by the practice adopted in the code. The final complaint is, that the court overruled the motion for a new trial; and under this objection an attempt is made to show that the verdict was not sustained by the evidence. As the record shows that evidence was introduced by both parties on the trial for and against the claim of the defendant in error, and as sufficient evidence was introduced to sustain the verdict of the jury, if uncontradicted, and as the verdict has had the approval, of the justice hearing the witnesses, and of the district court upon proceedings of review, we can-> not, according to the repeated decisions of this court, disturb the verdict, or set aside the judgment. The judgment of the district court will be affirmed. All the Justices concurring.	[ -76, 104, -7, 45, -118, -96, 42, -40, 66, -95, -89, 83, -23, 83, 1, 109, -30, -51, 85, 106, 78, -73, 19, -61, -110, -13, -61, -59, -79, 111, -27, -33, 76, 48, 66, -107, 102, -56, -63, -100, -114, 6, 40, -20, -4, 96, 48, 58, 18, 91, 113, 46, -9, 46, 29, -57, 105, 44, 79, 61, -48, -16, 24, 13, 109, 2, -78, 34, -104, 3, 90, 60, -104, 57, -120, -8, 115, -90, -122, 84, 47, -103, 8, 102, 103, 32, 109, -49, 40, -120, 47, -1, 15, -89, -112, 64, 75, 0, -66, -99, 54, 80, 2, 124, -29, 28, -99, 108, 3, -53, -108, -89, -113, 52, -102, 83, -53, -89, 20, 113, -59, -90, 93, 37, 16, -101, -113, -73 ]
The opinion of the court was delivered by Horton, C. J.: In the court below Sarah J. Clark brought her action against Thomas J. Clark to recover the sum of $1,000 for money had and received. Thomas J. Clark answered in the nature of a plea in abatement, “ that said Sarah J. Clark was named, known, and called Sarah J. Brown,” and asked for judgment. To this answer, the defendant in error replied that the plaintiff in error “gave her the name of Clark, and caused her to be known by that name in the community where they lived, and where she resided at the commencement of the action.” From the findings of fact returned by the jury, it appears that prior to the institution of the suit, the plaintiff in error, a married man, and the defendant in error, a married worn an, eloped together from' their respective homes in Indiana, and came to Neodesha-, Wilson county, in this state; that at the time of such elopement the defendant in error was the wife of a man named Brown, and she herself was known by the name of Sarah J. Brown. On their arrival at Neodesha, and upon their taking up their residence there, the plaintiff in error introduced the defendant in error to the community in which they had taken up their residence as his wife, and theñ and there caused her to be known by the name of Sarah J. Clark, and from that .time on she was known by that name, and no other, in the community where they both resided; that the said defendant in error was thus known by her assumed name of Sarah J. Clark at the time the money sued for was obtained, and so continued to be known and called. Under the pleadings and the facts in the case, the court below committed no error in rendering judgment for the defendant in error. The real party in interest brought the action; and the record sufficiently identifies such party so far as her name is concerned as to disclose a complete bar to a similar action between the same parties. She was known only in Kansas by the name of Sarah J. Clark; the plaintiff in error assisted to make her known by that name by his own acts and statements; she was so called when the plaintiff in error obtained the money, and had no other name in the community in which she lived. As to the length of time she has lived in Kansas, the record is silent. The weight of authority of the American cases is in favor of the conclusion we have reached, and in support of our view we refer to Goodenow v. Tappan, 1 Ohio, 61; Cooper v. Burr, 45 Barb. 9; Petition of John Snook to change his name to John Pike, 2 Hilt. C. P. 566. . The judgment of the district court will be affirmed. All the Justices concurring.	[ -48, 108, -31, 60, 56, -92, 34, -120, 99, -127, -73, 115, -19, -61, 20, 121, 98, -83, 85, 123, -58, -77, 7, -29, -46, -46, -71, -35, -80, 92, -11, -42, 76, 48, 74, 85, 102, 74, 7, 84, -114, -122, 9, -24, -24, 104, 52, 115, 66, 11, 117, 42, -13, 46, 53, 67, -23, 40, 109, -67, -128, -16, -117, -123, 93, 6, 51, 32, -98, 1, -56, 56, -104, 57, 0, 56, 123, -106, 2, -44, 123, -69, 13, 110, 98, 33, -59, -21, 56, -104, 46, -2, 13, -89, -80, 64, 75, 76, -66, -99, 125, 16, 35, -44, -4, 12, 29, 100, 11, -37, -110, -79, -115, 52, -98, -101, -9, -125, -80, 69, -57, 32, 93, 7, 48, -69, -49, -2 ]
The opinion of the court was delivered by Valentine, J.: This was an action brought to set aside and cancel two certain promissory notes and certain mortgages made to secure the same. These notes and mortgages were all made by Ballou, and given to Waite, defendant. Ballou, as plaintiff, asked for and obtained a temporary injunction, or perhaps more properly speaking, two temporary injunctions, restraining the defendant in the meantime from selling or disposing of said notes, and from selling or disposing of or interfering with the mortgaged property. These injunctions were granted originálly by the judge of the probate court—the first one upon the original petition filed in the case, and the second one upon an amended petition. Afterward the defendant moved to dissolve these injunctions, and the motion was heard before the judge of the district court, at chambers. The motion was heard upon the original petition, the amended petition, and such affidavits as were presented by the parties respectively. The plaintiff’s claim, which he attempted to show by said petitions and affidavits, was, that said promissory notes were given wholly for usurious interest, and that there was no other or different consideration therefor. He claims that the defendant loaned him money, that he gave certain other promissory notes for the principal of the loan, with legal interest, and that he gave these notes in suit merely for the usurious interest agreed to be given on such loan. He also claims that before commencing this action he paid all the principal of said loan, with legal interest thereon, and that he fully paid, satisfied, and discharged all notes and other instruments given on said loan, except merely these two notes with the mortgages made to secure them, which two notes and mortgages were given wholly for usurious interest. The judge below decided the said motion of the defendant upon the theory that these claims of the plaintiff were all true; and, as the evidence given on the hearing of the motion seems to sustain these claims, we must decide the question upon the same theory. The following is the decision and order of the judge below on the hearing of this motion, to-wit: {Court, and Title.) “The court, after mature deliberation, is of the opinion that the said defendant ought not to be permitted to dispose of or interfere with the property mentioned in the amended petition of the plaintiff in the above action until the same can be legally investigated. It is therefore considered, ordered, and adjudged by the court, that the said defendant be and he is hereby ordered to refrain from taking, selling, molesting, or in any manner whatever interfering with the property mentioned in the amended petition filed in the above cause, or any part thereof, and that this order stand until the further order of this court.” At the time this order was made the defendant was advertising to sell the personal property under the chattel mortgage, and had commenced an action to foreclose the real-estate mortgage. This order was probably, intended by the judge of the district court to take the place of and supersede the orders made by the judge of the probate court. Hence it will only be necessary for us to determine whether this order is correct, or not. We think it is correct. Unquestionably it is correct so far as it restrains the sale of the personal property; for what other adequate remedy would the plaintiff have ? But we think it is correct in every other particular. Equity always interfered to prevent the collection of usurious interest where the plaintiff himself had previously done equity. (2 Joyce on Injunctions, 1205, etseq.; Hilliard on Injunctions, 333; High on Injunctions, §§703 to 705.) In this ease the plaintiff did full equity before commencing this action. He did everything and paid everything that the defendant had any right to claim, either in law or equity, that he should do or pay. The order of the judge of the court below will be affirmed. All the Justices concurring.	[ -13, 124, -108, 30, 10, 112, -86, -70, -45, 32, -77, -13, 105, -62, 20, 97, -10, -23, -44, 107, -9, -77, 23, 1, -14, -14, -47, 93, -79, 125, -28, 87, 76, 36, -54, -107, -58, 0, -63, 86, 70, 39, -118, -19, -39, 72, 52, 59, 80, 73, 69, -50, -29, 45, 29, 74, 105, 40, 91, 29, -48, -72, -99, -123, 95, 87, -77, 39, -100, 69, -38, 10, -112, 51, 0, -24, 114, -74, -106, 84, 75, -69, 40, 98, 103, -112, 65, -17, -16, -104, 39, -50, -115, -122, -45, 89, 35, 5, -74, -97, 124, 16, -121, 118, -18, 31, 29, 108, 23, -50, -42, -77, -97, 58, -104, -125, -6, 7, 48, 97, -114, -32, 92, 99, 25, -5, -114, -77 ]
The opinion of the court was delivered by Valentine, J.: This was an action on a promissory note and a real-estate mortgage. A personal judgment was rendered in favor of the plaintiff, George Opdyke, against the •defendant Crawford for the sum of $3,507, and the mortgaged property was ordered to be sold to satisfy this personal judgment. At the time this judgment was rendered there were taxes due on said mortgaged property amounting to $2,510, and the property itself was not worth more .than $3,800. The plaintiff asked that the mortgaged property be sold in accordance with law, that the taxes be first paid out of the proceeds thereof, and that the balance of the proceeds, if any, should then be applied in part payment of the plaintiff’s said personal judgment. But the court refused,, and rendered judgment as above mentioned. Under this judgment, and indeed under any judgment which might legally have been rendered, the property should first be appraised and then not sold for less than two-thirds of its appraised value. The only question now to be considered is, whether the court below erred in refusing to render the judgment as asked for by the plaintiff. We think it erred. Taxes are always a lien upon the real estate upon which they are imposed, and are always prior and paramount to any other lien or incumbrance. And courts of equity, in the foreclosure of mortgages, always have the power to ascertain what are liens upon the mortgaged property, to determine their priority, and to order that such liens be discharged out of the proceeds of the sale of such real estate in accordance with their priority. (See authorities cited by counsel for plaintiff in error.) In this state a holder of a mortgage has two remedies : first, he may pay the taxes, and then recover them back from the mortgagor, or have them included in the judgment rendered in his favor on foreclosure; or, second, he, as well as the mortgagor, may neglect to pay the taxes, and then he may have the amount thereof paid out of the proceeds of the sale of the mortgaged property on foreclosure. The statutes upon this subject read as follows: “In cases where lands are mortgaged, if the mortgagor fails or neglects to pay the taxes, or in case said mortgagor permits any land so mortgaged to be sold for any taxes, the mortgagee may pay said taxes, or redeem any land so sold for taxes. And on the payment of any such mortgage, or in the action to enforce the same, such mortgagee may demand the taxes so paid, with interest thereon at the rate of twelve per cent, per annum, or include them in any judgment rendered on the mortgage; and any taxes so paid by any mortgagee shall be a lien on such land so mortgaged until the same be paid.”—(Laws of 1876, page 97, §148; Gen. Stat. of 1868, page 1062, § 135.) “Whenever any lands so held by tenants-in-common, shall be sold upon proceedings in partition, or shall be taken by the election of any parties to such proceedings, or where any real estate shall be sold at judicial sale, or by administrators, executors, guardians, or trustees, the court shall order all taxes and penalties thereon against such lands to be discharged out of .the proceeds of such sale.”—(Laws of 1876, page 70, §56; Gen. Stat. of 1868, page 1034, §40.) And as sustaining the rule above stated, see Ketchum v. Fitches, 13 Ohio St. 201; Tuck v. Calvert, 33 Md. 210, 224, 225; Easton v. Pickersgill, 55 N. Y. 310; Brown v. Evans, 15 Kas. 88, 92, 93. The judgment pf the court below will be modified, so that taxes due on the mortgaged property may first be paid out of the proceeds of the sale of such property. In every other respect the judgment of the court below will be affirmed. All the Justices concurring.	[ -16, 124, -44, 46, -38, 96, 42, -23, 80, 48, -78, 87, 111, -62, 84, 45, -12, 47, 117, 112, 21, -77, 7, 3, -42, -77, -15, -36, -67, -20, -28, -57, 76, 49, -62, -107, -26, -86, -59, 112, 78, -121, -120, 69, -47, 64, 52, 27, 112, 72, 113, -115, -13, 44, 31, -53, 72, 40, 89, 57, -32, -72, -65, -123, 127, 7, -109, 37, -38, 67, -22, -118, -112, 49, 64, -24, 123, 54, -122, 116, 77, -69, 41, 102, 102, 1, 73, -17, -16, -104, 47, -41, -115, -90, -111, 92, -126, 42, -68, -97, 109, 80, 7, 126, -18, -108, -99, 108, 31, -50, -42, -77, -85, 124, 24, -61, -49, 3, 32, 113, -113, -96, 92, 103, 25, -101, -114, -8 ]
The opinion of the court was delivered by Horton, C. J.: The question to be determined ' in this case is, as to the sufficiency of an information purporting to charge defendant Grewell with the offense of violating the provisions of section 26 of ch.122, laws of 1876, p.287, relating to trespasses on school lands. The information states the offense in the words of the statute, but alleges no amount of damage, nor any value whatever, as the result of such alleged trespass. Said section 26 provides among other things, that “the person committing such trespass shall be deemed guilty of a misdemeanor, and may be indicted and fined in a sum not less than double the amount of damage proved to have been committed, and not exceeding one thousand dollars, and confined in the county jail not less than one month, and not more than six months.” As the plain requirement of the statute is, that a part of the punishment to be inflicted is a fine, and as such fine cannot be less than double the amount of damage proved, said fine is to some extent measured by the proof of the damage committed by the trespass, and therefore it seems the necessities of the case demand an averment of the value of the thing injured, or the amount of the damage committed. Unless such an allegation is made, no proof of damages can be given. In the absence of such proof, no fine can be inflicted; and thus, in no event could the penalties provided by the law be adjudged against a party upon an information like the one filed in this case. This condition of things brings this case within the exception to the general rule, that it is sufficient to describe a misdemeanor created by statute in the words of the statute, if this law is to be fully enforced, as an averment of value is necessary to determine a part of the punishment. (The State v. Armell, 8 Kas. 288.) While the statute provides for imprisonment in the county jail, as additional penalty for a violation of the statute, and thereon may be based some argument in favor of the sufficiency of the information, still, construing all of the section together, and considering the fact that the legislature clearly intended in such an action to obtain damages proportionate to the injury committed, and to accomplish this a fine not less than double the amount of damage proved, and not exceeding $1,000, must accompany the imprisonment, we think the true construction of the law applicable to the case to be, that all informations under said section should contain an allegation of the amount of damages alleged as committed by the defendant violating the provisions of such section. The statute contemplates damages as an essential ingredient of the acts prohibited, as it expressly states damages are to be proved. If no damages can be proven, no conviction should be allowed; and no damage can be proven, if no averment is made thereof. If no damages can be adduced upon the trial of a defendant charged with the acts prohibited by this statute, it would seem wrong, almost malicious, to institute a public prosecution; and if damages can be proven, it would be also impolitic to permit the county attorney to omit such proof, and thereby waive so much of the penalty as requires the infliction of a fine on conviction. The learned attorney general, representing the state, suggests in his brief that the tf ascertainment of damages might be omitted by the state till after a verdict of guilty, then the court by the inherent powers with which it is invested, could, in some proper mode, ascertain the damages done, to enable it to fix the amount of the fine.” This, to us, seems a confession of the necessity of making proof of the amount of the damage to determine the punishment; and if this much is conceded, the argument is conclusive against the sufficiency of the information. In this case the court is restricted as to its infliction of punishment; and if proof must be submitted to determine the same, a defendant has the right to have a jury pass upon that proof, and decide whether the damage is one dollar, or $500, or nothing. Where a court may, upon a plea or verdict of guilty, pass sentence without any proof, of course, in its discretion, it may examine witnesses, or take the statements of the counsel on either side, as means to inform itself as to the true character of the offense committed, and as to what should be the sentence, within the limitations of the law; but when a court is bound to receive proof in a case to determine the punishment, and cannot inflict the punishment until such proof is received, the information or indictment should contain the averments upon which the proof is to be submitted. In all prosecutions, the accused shall be allowed to demand the nature and cause of the accusation against him; and can it be said that a defendant was fully informed of the nature of the charge, if after being convicted upon an information like the one in controversy, the court could by its inherent powers take testimony and find, perhaps upon the evidence of the complaining witness alone, that the amount of damage committed was $500, when such a finding must result in assessing the defendant to pay a fine of $1,000, and committing him to jail until such fine was paid ? With such a construction of the law, and such results to be obtained, could we say a defendant had had a trial by an impartial jury? We answer no. The guaranty of a trial by a jury to a person charged with a crime, is not complied with by permitting only a portion of the facts constituting the offense to be submitted to the jury, and leaving important questions, which are to be settled by proof, to be disposed of by the court in its own way, and according to its own chosen methods, regardless of the provisions of the constitution. The order of the court arresting judgment upon the verdict will be affirmed. All the Justices concurring.	[ -16, -6, -3, -67, 11, 96, 42, -104, 11, -75, -96, -45, -19, -46, 0, 113, -74, 107, 85, 121, -63, -73, 51, -61, -78, -77, -9, 85, 51, -54, -20, -41, 78, 49, -126, 85, -26, 10, -27, -48, 14, -83, 40, -61, -45, 66, 36, 59, 68, 15, 49, -97, -13, 46, 24, -61, 105, 40, 75, 57, -31, -7, -68, -113, 91, 18, -80, 39, -84, 3, -6, 44, -104, 57, 0, -20, 115, -122, 2, -44, 73, -101, -115, 96, 98, 1, 45, -42, -8, -119, 47, 118, -113, -90, 16, 72, 106, 12, -98, -97, 116, 50, 6, -6, 103, 4, 89, 108, -95, -57, -76, -79, -115, 32, -98, 112, -61, 35, 49, 101, -60, -58, 92, 97, 83, -101, -106, -34 ]
The opinion of the court was delivered by Horton, C. J.: In both of these cases an attempt is made to present certain alleged errors upon matters which are not necessarily of record in the district court; and neither the testimony introduced on the trial in the court below, nor the proceedings had there, are preserved by a bill of exceptions, nor a case-made, and hence upon the authority of Winsor v. Cole, 10 Kas. 620, and many other decisions of this court similar in principle, we cannot determine the questions sought to be presented, and the judgments of the district court must be affirmed. All the Justices concurring.	[ -80, 120, -59, -68, 14, 96, -86, -86, -125, -95, 50, 83, -83, -37, 4, 119, 126, 93, 85, 107, 68, -77, 118, -15, -10, -45, -37, -41, -79, -22, -12, 29, 76, -88, -54, -43, 38, -56, 67, 86, -58, -105, 1, 72, -39, 81, 52, 54, 50, 15, 97, 54, -29, 60, 26, -61, -24, 40, 73, -79, -48, -39, -114, 5, 93, 4, -77, 38, -100, 15, -100, 46, -104, 49, 1, -20, 51, -90, -126, -44, 107, -69, 13, -30, 99, 1, -51, 71, 60, -120, 39, 126, -97, -26, 26, 48, 107, 65, -106, -67, 116, 114, 42, -2, -29, 4, 93, 116, 5, -113, -78, -81, -121, 61, -70, 89, -5, -94, -80, 81, -59, -32, 93, -59, 19, -71, -106, -66 ]
The opinion of the court was delivered by Valentine, J.: This was an action brought by H. J. Seip & Co. against Martin Patrie, to recover the possession of certain stone-coal. The only grounds upon ’which the plaintiffs ask a reversal of the judgment below are, that the verdict upon which such judgment was rendered is against the evidence, and that, for that reason, the court below erred in refusing to set aside such verdict, and in refusing to grant a new trial. There is no claim that the court below erred in any ruling prior to overruling the plaintiffs’ motion for a new trial; and from anything appearing in*the record, the court may have taken the same view of the law of the case that the plaintiffs did. We cannot say that the verdict is against the evidence. We cannot say from the evidence that the plaintiffs ever owned the coal in controversy, or that they ever had the slightest right to the possession thereof. The evidence would seem to show that the plaintiffs entered into a contract with the St. Joseph & Denver City railroad company, to furnish coal to such company upon condition that the coal should remain the property of the plaintiffs until the same should be used or paid for, and that the plaintiffs furnished coal under said contract to said company at St. Joseph, Missouri. The evidence also shows that the defendant, who was sheriff of Washington county, in this state, by virtue of an execution held by him against said railroad company levied upon the coal now in controversy as the property of such railroad company, and took the same from the possession of the company at Hanover, Washington county. But the only evidence that tends to show that the coal levied upon by the defendant was ever the property of the plaintiffs, is in the testimony of H. J. Seip, one of the plaintiffs, as follows: “This coal, levied upon by the defendant, was a portion of the coal furnished under said contract.” “At the time sheriff Patrie, the defendant, levied on said coal, I was doing business at St. Joseph, Missouri, 125 miles from Hanover, Kansas.” “The coal the defendant Patrie levied on was part of the coal I furnished the railroad under said contract, for 1875. The day the coal was taken I was notified he had taken sixty tons of it. It was hearsay to me. Said coal was then worth at Hanover about six dollars per ton. I know this was my coal, because sheriff Patrie told, me before the first trial of this case that he had levied on my coal.” Sheriff Patrie however testifies as follows: “ I never told the plaintiff Seip I levied on his coal, or any coal at all. When I took the coal I was satisfied it really belonged to the railroad company, and not to Seip, or any one else,, or I would not have taken it. The company then had it in their possession.” There was no other evidence showing where the railroad company got the coal upon which the defendant levied. There was no evidence showing whether the railroad company ever purchased coal from any other person, or received coal from any other source, or not. There was no evidence showing whether the railroad company ever carried coal as a common carrier or not, or whether they ever had any coal in their possession, except the coal in controversy, and the coal furnished by the plaintiffs. This lack of evidence we think is against the plaintiffs, instead of in their favor. The burden of proof rested upon the plaintiffs. It devolved upon them to show that the coal levied upon by the defendant was a part of the coal furnished by them to the railroad company, and it did not devolve upon the defendant to show that it was not such coal. There was, we think, sufficient evidence from which the jury might have found the fact of ownership in favor of the plaintiffs. But the jury found generally against the plaintiffs, and as the case is presented to this court, we must infer that the jury also found the fact of ownership against them. That is, we must infer that the jury found that the coal levied upon by the defendant was never any part of any coal furnished by the plaintiffs to the railroad company. The plaintiff Seip did not pretend to know from his own personal knowledge whether the coal levied upon by the defendant was a part of the coal furnished by the plaintiffs to the railroad company. All he knew about it, was from hearsay. He testified however that the defendant told him that the coal levied upon was his coal. This was good evidence, and sufficient if it had not been denied. But the defendant testified that he never told Seip any such thing. And we must infer from the verdict that the jury believed the defendant. Now, taking all the evidence in the case together, we cannot say, as against the verdict of the jury and the approval thereof by the district court, that the ver diet is against the evidence. And we certainly cannot reverse the judgment of the court below on that ground. The judgment will be affirmed. All the Justices concurring.	[ -80, 106, -12, 29, 28, -32, 34, -104, 98, -95, -28, 115, 105, -118, 2, 57, -30, 125, -44, 123, 66, -77, 3, 51, -110, -45, -47, -52, -79, 72, -28, -34, 76, 32, 74, -43, -26, 104, -47, 94, -114, 36, -88, -32, 88, 120, 60, 59, 66, 75, 113, -82, -13, 44, 26, -61, 73, 61, 127, 61, 64, -7, -80, 69, 125, 4, 33, 36, -100, 7, 72, 47, -112, 49, 0, -20, 115, -76, -122, -44, 37, -119, 9, 102, 67, 33, -108, -17, -88, -104, 45, -2, -127, -90, -112, 88, -62, 13, -106, -99, 116, 80, -89, -2, -27, 29, -35, -84, 7, -54, -74, -77, 31, 44, -102, 71, -53, 33, 52, 97, -59, 50, 93, 69, 123, -101, -113, -66 ]
The opinion of the court was delivered by Horton, C. J.: This was an action on the official bond of the treasurer of School District No. 71, of Crawford county, to recover the sum of $486.86 on account of moneys collected by said treasurer, which he wrongfully refused to pay over, as a faithful discharge of his duties required. The petition alleged among other things, that the said school district was a duly-organized school district under and by virtue of the laws of the state of Kansas, and as such school district was doing business under the name and number of “School District No. 71, Crawford county,” and that the defendant, David Wands, was the duly-elected, qualified and acting treasurer of said School District No. 71 from the 7th of April 1873 until the 13th of August 1874, at which last-mentioned time the said Wands ceased to be treasurer of said district. The answer in the case was not verified; and on the trial an attempt was made to introduce in evidence, on the part of the plaintiffs in error, (said treasurer and his sureties,) the record of a judgment of the district court of Crawford county, rendered at the May term 1873, in a certain action then pending in said court, wherein “Union School District No. 11, of Crawford, Labette, and Neosho counties,” was plaintiff, and said “School District No. 71” was defendant, to prove that all the territory claimed by said School District No. 71, except one section, had* been adjudged by said court to belong to said School District No. 11, and that said judgment remained unreversed; also, to prove by the county superintendent of schools for said Crawford county that said remaining section of territory claimed by School District No. 71 had been attached to an adjoining school district in said county of Crawford prior to the commencement of 'this action, and that “School District No. 71” had been blotted from the school maps of said Crawford county in obedience to the judgment of said court before the commencement of this suit; and to further prove, that all the money now claimed by said “School District No. 71” was the legally-assessed and collected school-tax of the territory and inhabitants of said School District No. 11, and that as such treasurer Wands had in good faith paid the sum sued for to said School District No. 11 prior to this action, having no knowledge that said money then had any other legal owner, or that School District No. 71 had any organization as a school district under the laws of Kansas. To the introduction of all of this evidence, the defendant in error objected, and the court sustained such objection, holding the offered proof inadmissible in the case. Complaint is now made of this action of the court by the plaintiffs in error. In said ruling of the district court there was no error, as under the pleadings the existence of the said School District No. 71, and the election and qualification of said Wands as the treasurer thereof, were confessed as true. (Sec. 108, civil code, Gen. Stat. 650.) The existence of such school disti’ict, as also the official position of Wands, as its treasurer, being admitted in the pleadings, and in the official bond signed by all the plaintiffs in error, it was no defense to the action to prove that the money collected by Wands as such treasurer had been paid to another school district without the assent of School District No. 71, or that such treasurer had no knowledge of the existence of said School District No. 71. The evidence presented was not in support of any issue tendered in the case, and was properly rejected. During the trial, the plaintiffs in error .moved the court for leave to amend their answer by a verification thereof, which was denied by the court, except upon the payment instanter of all the costs of the suit up to the time of such application. Under the law, defendants have no absolute right to amend their answers whenever they may choose so to do; and as they can amend only upon leave of the court, and upon such terms as may be just, we see no abuse of discretion in the court as to the terms imposed. By the payment of the costs, the plaintiffs in error could have obtained leave to make the amendment asked; but this they refused to do, and cannot now complain because they were not permitted to verify their answer. The other exceptions in the case referred to in the brief of counsel for plaintiffs in error are not sufficiently presented in the record for this court to take cognizance of, and hence cannot be considered. The judgment of the district court will be affirmed. All the Justices concurring.	[ -108, 108, -12, 92, 10, -64, 42, 26, 25, -77, 37, 119, -23, 27, 21, 125, 114, 45, 84, 104, 66, -73, 91, -51, -110, -13, -3, -51, -69, -34, -92, -41, 74, 48, 10, -99, 6, -22, 71, -44, -114, 4, -85, 68, 89, -126, 60, 105, 58, 10, -79, 14, -13, 42, 28, 99, -55, 44, 89, -85, 64, -13, -70, -41, 93, 23, 1, 6, -100, 3, 96, -86, -104, 51, 12, -24, -5, -90, -122, -44, 5, -119, 8, 116, 102, 1, -76, -51, -72, -120, 15, -45, 29, -26, -77, 88, 114, 13, -98, -99, 121, 84, 7, -6, -25, -123, 16, 108, 7, -38, -24, 19, -114, 61, -109, 7, -13, -88, 48, 65, -115, 4, 89, -25, 26, -101, -34, -71 ]
The opinion of the court was delivered by Valentine, J.: In 1872 the township of Concord, Ottawa county, was duly divided, and from the detached territory the new township of Bennington was constituted. At the time of said division the township of Concord was liable on an indebtedness for certain bonds previously issued by the town ship to build certain bridges. The question now presented is, whether Bennington township is liable to pay any portion of said indebtedness. Or rather, it is, whether the real estate situated in said township is thus liable. Or, to state the legal question involved in the case with more exactness, it is, whether sections 3 and 4 of “an act to regulate taxation on the change of boundary lines,” approved March 3d 1873, (Laws of 1873, page 267,) are constitutional and valid, or not. For if said sections are constitutional and valid, then the real estate in said township of Bennington is liable for a portion of said indebtedness; but if they are not constitutional and valid, then no portion of the property in Bennington township is thus liable. This same question, with some others, has already been decided by this court. Comm’rs of Sedgwick County v. Bunker, 16 Kas. 498. In the Sedgwick county case we held that said sections were constitutional and valid, and we still think that such decision is correct. We were not however at /that time entirely satisfied with that decision, and we are not now entirely satisfied with the same; but it corresponded then with our best judgment, and it corresponds now with our best judgment. Counsel for defendant in error in this case ask us to reconsider that decision, and they present to us a very able and elaborate argument to convince us that we were wrong. But they have presented nothing new—nothing that we had not already carefully considered and held to be insufficient to invalidate the law. But it is not strange that counsel should wish to have the question reexamined and reconsidered. The question is a difficult one. The arguments on both sides are nearly equally balanced, and different minds might honestly come to different conclusions thereon. Even unprejudiced minds might reach different conclusions, while every prejudiced mind will undoubtedly reach a conclusion corresponding with its own prejudices, or its own interests. Every person whose interest is against the law, will undoubtedly believe that the law is unconstitutional. But this is not all. The arguments against the constitutionality of the law lie principally upon the sur face, and can easily be seen and comprehended, while the arguments in its favor lie further back and can only be seen or comprehended by greater labor and by severer mental effort. To say that all assessments and all taxes must be equal and uniform, in order to be valid; that the tax in this ease is not equal and uniform, and therefore that the tax in this case is void, is an argument so short, so simple, so logical, and so easy of comprehension, that all persons who cannot or will not push their inquiries into a broader field of investigation will gladly accept it as true, and think it conclusive. But this argument is not sound. The fault is in the major premise of the syllogism. All assessments and all taxes are not required to be equal and uniform. It is true, that a certain degree of equality and uniformity must prevail in all assessments, and in all taxes, or they will be void. But the broad proposition, that all assessments and all taxes must in all respects be equal and uniform, is not true, and in the nature of things it could scarcely in any case be made to be true. Counsel for defendant in error, all through their argument, seem to have mistaken the language of our constitution. Our constitution provides that “the legislature shall provide for a uniform and equal rate of assessment and taxation.” (Const, of Kas., art. 11, §1.) It does not provide for a uniform or equal rule of assessment or taxation. And yet counsel all through their argument continually speak of the “uniformity of the rule of assessment and taxation,” instead of speaking in the language of the constitution of “ a uniform and equal rate of assessment and taxation.” They use the language of the constitutions of Ohio, and Wisconsin, and California, and several other states, instead of using the language of our own constitution. Now why should they do this, if they really believe that the language of our own constitution is sufficient for their purpose? Neither does our constitution in terms require that all property except such as it itself exempts, shall be assessed or taxed; nor does it provide in terms that no exemption shall be allowed except such as it allows. On the contrary, it provides in terms that “personal property to the amount of at least two hundred dollars for each family, shall be exempt from taxation,” and by this language unavoidably implies that more than two hundred dollars worth of personal property may be exempted by statute. In this particular, as well as in the said “rate of taxation,” our constitution differs from those of many of the other states. These differences will be noted in the opinion soon to be delivered in the case of Francis, State Treas’r, v. A. T. & S. F. Railroad Co. The full provision of our constitution upon these subjects reads as follows: “The legislature shall provide for a uniform and equal rate of assessment and taxation; but all property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, and personal property to the amount of at least two hundred dollars for each family, shall be exempted from taxation.” (Const., art. 11, § 1.) Counsel for defendant in error refer us to the rule of taxation as enunciated in the case in 9th Wisconsin Rep., page 440. Now on that page is found the brief of counsel for the plaintiff, in the case of Milwaukee, &c., Rld. Co. v. The County of Waukesha. Said counsel in that case was opposed to the law, and of course said it was invalid. The court however held it'to be valid and constitutional. In the opinion the court say: “ The imposition upon railroad property by the act of 1854, does not violate that provision of the constitution of Wisconsin which provides a uniform rule of taxation, provided like property pertaining to railroads, or all property of that class, is alike taxed, or alike exempt, as it appears to be.” (9 Wis. 449.) This case is reported in a note to the case of Knowlton v. Supervisors of Rock Co., 9 Wis. 410. The court does not, in either of these cases, decide that property other than that exempted by the constitution may not also be exempted from taxation by statute. In the first case mentioned, the court decides as above stated; and in the other case, the court decides that a part of the property in any given district cannot be taxed “by a different rule from that by which other property [in the same district] is taxed,” but that “all kinds of property must be taxed uniformly, or be ’absolutely exempt.” (Syllabus, page 411; see also in this connection, Ill. Cent. Rld. Co. v. McLean Co., 17 Ill. 291.) Now in the present case, the real estate of said Bennington township is all “taxed uniformly” to pay said indebtedness, and the personal property is all “absolutely exempt” from such taxation. Is not this in accordance with the said Wisconsin decisions? We are also referred to a decision in California. But in California the constitution requires that “all property in the state shall be taxed in proportion to its value,” and “ taxation shall be equal and uniform.” We are also referred to decision^ in Indiana. Now if we understand the following decisions in Indiana, property may be exempted from taxation by statute which is not so exempted by the constitution: Bank v. City of New Albany, 11 Ind. 139, 142; Connersville v. Bank, 16 Ind. 105; King v. Madison, 17 Ind. 48. We do not take issue with any decision in any state referred to by counsel for plaintiffs below; and so far as the present ease is concerned we might well admit that each of such decisions would be held to be good law in Kansas, even under our constitution. The case before us is outside of all ordinary cases, and is simply analagous to the said Sedgwick county case reported in 16 Kas. 498. As we have before stated, it is not necessary that all assessments and all taxes in Kansas should be equal and uniform in order to be valid. (See Glasgow v. Rowse, 43 Mo. 480, and Ill. Cent. R. Co. v. McLean Co., 17 Ill. 291, et seq.) And we suppose that no person who has been able to give the subject any careful consideration will so contend. First: The aggregate amount and rate of assessment and the aggregate amount and rate of taxation vary in almost every county, city, town, township and school district in this state. The aggregate rate in some places is as high as five per cent, on the valuation of property, and in other places it is as low as one or two per cent. And yet the constitution says that “ the legislature shall provide for a uniform and equal rate of assessment and taxation.” Now does this mean, “a uni form and equal rate of assessment and taxation” throughout the state, and for every part and portion of the state? And if not, why not? Can any one give any sufficient reason why not? Of course, every one knows that the constitution does not mean, (although it may seem to say so,) that the “rate of assessment and taxation” shall be so “uniform and equal” throughout the state that if the aggregate rate of taxation in any one school district or township in the state should be just two per cent, on the valuation, that the aggregate rate of assessment and taxation in every other part and portion of the state should also be just two per cent. And yet, who can give an intelligent and logical reason why the constitution does not mean this? There are reasons, and sufficient reasons, but they do not float upon the surface. And hence we would expect that strict constructionists and superficial reasoners would refuse to receive them, and would deny their validity, even when shown to them, unless they assent through fear of ridicule for adopting such an impracticable view of the constitution. Upon this question, see Bright v. McCullough, 27 Ind. 223, 229, et seq., and cases there cited. We have shown one exception to the rule that all assessments and all taxes must be equal and uniform; and this one exception alone destroys the universality of the rule contended for by the defendants in error, and to this extent it weakens their argument based upon the universality of such rule. But there are several other exceptions, some of which we will mention. It seems to be almost universally admitted that said constitutional provision, requiring that assessments and taxes should be at an’ equal and uniform rate, does not apply to such special assessments or special taxes (usually called “special taxes” in this state,) as are imposed upon abutting lot-owners in cities, towns, or villages, for street improvements. It has always been so held in this state, (Hines v. Leavenworth City, 3 Kas. 186, 197, and subsequent cases,) and has .generally been so held in other states under similar constitutional provisions. Now these special and local im positions are clearly assessments, and clearly taxes; but still it is almost universally admitted that they are not such assessments and such taxes as are contemplated by said constitutional provision. Now why are they not? Can any one tell ? We do not propose in this opinion to give any answer. Neither does said constitutional provision apply strictly to license-taxes. [Leav. City v. Booth, 15 Kas. 628, 635; Fretwell v. City of Troy, 18 Kas. 271.) In the case of Leav. City v. Booth, first referred to, it is said that— “A proper license-tax is not a tax at all, within the meaning of the constitution, or even in the ordinary signification of the word ‘tax.’ (City of East St. Louis v. Wehrung, 46 Ill. 395; Addison v. Saulnier, 19 Cal. 83; Carter v. Dow, 16 Wis. 318; State v. Herod, 29 Iowa, 123, 125; Mitchell v. Williams, 27 Ind. 62.) This is so even where the license-tax is much greater than the mere cost of issuing the license, and even where the surplus fund incidentally arising from the issuing of the license goes into the -treasury to swell the general revenue fund. (Charity Hospital v. Stickney, 2 La. An. 550; Tenny v. Lewy, 16 Wis. 566, 567; Chilvers v. The People, 11 Mich. 43; Ash v. The People, 11 Mich. 347; Baker v. City of Cincinnati, 11 Ohio St. 534, 543, 544; Johnson v. Philadelphia, 60 Penn. St. 445, 450; Henry v. The State, 26 Ark. 523, 525; Orton v. Brown, 35 Miss. 426.) And there are still other decisions, holding that the constitutional provisions with reference to taxation have no reference to the collection of license-taxes, among which are the following: Anderson v. Kerns Draining Co., 14 Ind. 201; Thomasson v. The State, 15 Ind. 449, 451; Bright v. McCullough, 27 Ind. 223, 232; The People v. Coleman, 4 Cal. 46.” Neither do we suppose that capitation taxes, or poll-taxes, or requirements to work on the roads, or to train in the militia, come within said constitutional provision, although evidently they are all taxes in one sense. Sawyer v. City of Alton, 4 Ill. (3 Scam.) 127, 130; Town of Pleasant v. Kast, 29 Ill. 490, 494. But even those assessments and those taxes which do come within said constitutional provision are not required to be, and are not always in practice, made and levied by a “ uniform rule.” Railroad property is assessed in one manner, while other property is assessed in quite a different manner; and still all these assessments are held to be valid. (Gulf Rld. Co. v. Morris, 7 Kas. 210, 220, et seq.) Different officers may, and sometimes do, assess different pieces of property belonging to even the same individual. (Id. page 227, and Gen. Stat. page 266, §53, page 1033, § 38, and page 1041, § 65.) Personal property is assessed and taxed by various rules. Some of it is assessed and taxed where the owner resides, without regard to where the property is situated. Some of it is assessed and taxed where the property is situated, without regard to where the owner resides. And some of it, to-wit, bank stock, is assessed and taxed where the business of the bank is done, without regard to where the owner of the stock resides, or where the bulk of the property of the bank is situated, or where the certificates of stock are held. (Laws of 1876, page 57, §7.) And it has been held in this state that in certain cases the entire partnership property of a firm may be taxed in one county, while some of the partners may reside in other counties. (Swallow v. Thomas, 15 Kas. 66.) All this we think is generally considered legal under our'constitution. Taxes are levied by various officers. State taxes are usually levied by special act of the legislature, and other taxes are usually levied by local officers under general laws. But the same local officers for any taxing district do not always levy all the taxes for such taxing district. Take cities of the second class, for instance; and in such cities some of the taxes are levied by the mayor and council; (Laws of 1873, page 128, §32;) some of them are'levied by the board of education; (Laws of 1876, page 272, §18;) and still another portion of such taxes may be levied by the county clerk of the county in which such city is situated; (Laws of 1875, page 45, § 6.) The most of the school-district taxes are levied by the school districts themselves, but some of such taxes may be levied by the county commissioners. (Laws of 1876, page 278, §11.) These are only examples. Other taxes are levied by still other persons. Now with all these examples and illustrations before us, how can it be said that all assessments and all taxation are governed by a “uniform rule?” We need not multiply illustrations. The fact is, that the constitution only requires that all ordinary and usual assessments and taxation shall be imposed at “ a uniform and equal rate;” and all extraordinary and uncommon kinds of assessment and taxation are left to be regulated by law in the same manner as the same would be regulated if said constitutional provision did not exist. Now to tax the property of one township to pay the debt of another township, is an extraordinary and uncommon kind of taxation. It can only happen by the change of the boundary lines of one or more townships. It can perhaps never happen more than once to the same locality. And it can seldom happen even once to any one locality. Constitutions are not generally framed to meet extraordinary and exceptional cases, but only to prescribe general rules for ordinary cases. Our constitution provides that “all county officers shall hold their offices for the term of two years, and until their successors shall be qualified.” (Const., art. 9, § 3); and yet this court held that when a new county is organized that the first county officers may be elected for a less term than two years; that the constitution “applies only to the regular term of the office, and not to vacancies, or exceptional cases.” (Hagerty v. Arnold, 13 Kas. 367.) In the organization of new counties and new townships some things must be done which in the very nature of things cannot come under any of the general rules established for older counties and older townships. And in such cases it is hardly fair to say that the framers of the constitution intended that all of the particular provisions of the constitution for older counties, or older townships, should apply with all their force and rigor to the new counties and new townships, as first organized, and thereby prevent the legislature from doing justice .in the particular case. It is more reasonable to suppose that in such cases such provisions were intended to apply to such extraordinary and exceptional cases only so far as in the nature of things -they could reasonably be made to apply. In the case of Comm’rs of Sedgwick Co. v. Bunker,.(16 Kas. 504,) the following language is used: “ When a debt is created against a county, all the taxable property therein, real and personal, becomes liable to pay the same. The real estate becomes permanently liable, (except for subsequent legislation,) because the owner thereof cannot remove it out of the county; but the personal property does not become so liable, for personal property may be removed out of the county at any time at the pleasure of the owner. If the legislature should change the boundary lines of any county, and in doing so should set off a strip of the territory thereof to some other county, then the legislature might at the same time enact that such strip should continue to be liable for the payment .of its share of the debts of the county to which it formerly belonged, or the legislature might entirely relieve such strip from all such liability. And it would seem that the legislature ought to have the power to relieve such strip from a portion of such liability, and to continue its responsibility for the other portion. At least, it would seem that the legislature should have the power to say that the real estate shall continue liable, and the personal property not. It would hardly seem that the detached territory should complain because of such- an arrangement, for the taxpayers of the strip would have no more taxes to pay on their real estate in proportion to its value than the taxpayers of the county from' which the strip was taken would have to pay on their real estate, and they would have nothing to pay on their personal property. They would have the advantage of the taxpayers of the county in not having any personal-property tax to pay. Not taxing the personal property of the strip, however, makes the tax on all the other property both of the cbunty from which the strip is taken, and the strip itself, higher than it otherwise would be. But as such a thing would not make the tax void as to the taxpayers of the county, could it make it void as to the taxpayers of the strip?” (16 Kas., pp. 504, 505.) The legislature in such a case treats the real estate of the strip, for the purpose of paying the existing bonded indebtedness of the county, as though the strip still remained a part of the county. But it treats the personal property as though it were removed from such county. That is, for the purpose of paying said bonded indebtedness the real estate of the strip is treated as remaining with the county, and is treated as though it and the county together still formed one taxing district; and by so treating the same, the rate of assessment and taxation for such indebtedness is equal and uniform within such taxing district. But the personal property of the strip is treated as having been removed from the county, and as having been placed in another county, and another taxing district; and by so treating the same, the rate of assessment and taxation in this other taxing district is also equal and uniform. Now the legislature has the power in other cases, to change the situs of personal property for the purposes of taxation, although no change is made in its actual situs. In the case of Swallow v. Thomas, 15 Kas. 68, it was said by this court that as to “the power of the legislature to separate, for the purposes of taxation, the situs of personal property from the domicile of its owner, there can be no doubt; (Tappan v. National Bank, 19 Wallace, 490;) nor any of the fact that, unless it has so separated- it, it is taxable at his domicile.” (See also, First National Bank v. Smith, 65 Ill. 44.) In the case of Griffith v. Carter, 8 Kas. 565, it was held that a stock of goods kept for sale in Coffey county, and which perhaps had never been in Douglas county, was nevertheless taxable in Douglas county where the owner of the property resided, and was “exempt from taxation in Coffey county.” That is, the situs of the property for the purposes of taxation was in Douglas county, although the actual situs of the property may never have been there, and was exclusively in Coffey county. That same kind of property would now under the same circumstances be taxed in Coffey county. The legislature has changed the law in this respect. (Laws of 1876, page 57, §7.) And the legislature in making such change has not only changed the taxable situs of such property from Douglas to Coffey county, and the rule of taxation in this respect, but it has also to some extent changed the rate of taxation; for a little higher rate of taxation must now be imposed in Douglas county, and a little lower rate in Coffey county, to raise the same amount of tax in each of the said counties than would have been necessary to impose if the taxable situs of said property had not been changed. And yet, such a change, and such a state of things, are legal, according to the decision made in the case of Swallow v. Thomas, supra. That is, according to the decisions made in said cases of Griffith v. Carter, and Swallow v. Thomas, the legislature may tax or exempt certain property in Douglas county, as it chooses, and may exempt or tax the same property in Coffey county, as it chooses, provided the property is taxed only in one county and exempted only in one county. And according to said cases, the rate of taxation would be'equally equal and uniform under said constitutional provision, whether the property was taxed or exempted in either of said counties, provided of course that it was taxed in one and exempted in the. other. It is further said in the case of Comm’rs of Sedgwick County v. Bunker, supra: “But suppose the personal property of the strip should also be taxed: then must the personal property brought onto the strip after its separation from the county be also taxed? It was not liable for any debt of the county before the separation. Perhaps if the strip had remained attached to the county it never would have been brought onto the strip, and therefore never would have been liable for any. tax or debt of the county. Perhaps the detaching of the strip had a controlling influence in bringing such property onto the strip. Then should such property be taxed to pay such debt ? The debt may not be due for thirty years after the detaching; and should property brought onto the strip twenty or thirty years after its separation from the county be taxed to pay an old debt of the county ? These are probably questions for the legislature, and not for the courts. But even if any portion of the personal property situated on said strip should not be taxed to pay said debt, then the uniformity of taxation contended for by the defendant would be destroyed.”—(16 Kas. 505.) Suppose that within ten or fifteen years from this time two men should emigrate from some other state to Kansas. Neither has ever before been in Kansas, or owned property therein, but each brings with him from his former home a considerable amount of personal property. One settles with his property in said county, the other goes onto said strip. One surrenders himself with all his property to the jurisdiction of said county, receives the benefits of all the property and institutions belonging to the county, and both he and his property become liable to taxation therein. ’ The other never enters within the limits of said county, and never owns or has any property therein. Now is there no stronger reason for taxing the one to help pay the said debt of said county, than for taxing the other ? Counsel for defendants in error in this case say not; but it would seem to us otherwise. (See opinion in the case of Chandler v. Reynolds, soon to be delivered.) But we must conclude. We have already extended this opinion to a greater length than was probably necessary; and yet we have not exhausted the subject. To enunciate a few superficial abstract propositions, and then follow them to their logical sequences, is comparatively an easy task. But to enter upon a real investigation of a difficult and complicated subject, and examine it in all its multifarious relations and countless details, requires more time, labor, and research than we have time to give to it. We have extended this opinion, however, thus far in order to show that the general abstract propositions relied upon by the defendants in error do not state correctly either the letter or the spirit of the constitution. They are too general. They cover too much ground. They embrace within their comprehensive terms too many particulars. No provision of the constitution can be found so comprehensive or so sweeping in its general terms. Hence, although said general propositions of the defendants in error may seem to be generally true in their application to cases, still they cannot always be true, and must in many cases be subject to exceptions and limitations. General propositions of law however are generally subject to exceptions and limitations, and much of the labor of courts is devoted to ascertaining and designating these exceptions and limitations. And here comes the conflict. Technical and superficial reasoners, persons whose prejudices or interests are with the general proposition, and those who cannot or will not investigate a subject in all its manifold details, will refuse to recognize the exceptions or the limitations, and will cling to the general proposition. We do not wish in this case to fix the boundaries of the operation of said constitutional provision. The task would be too difficult, and we could not do it if we would. Nor do we wish to decide where said provision will apply, or where it will not apply, any further than is necessary for the decision of this particular case. Indeed, all that we wish to decide is, that said constitutional provision does not apply in this case to such an extent as to render said sections 3 and 4 of said act of 1873 unconstitutional and void. No other questions are in fact determined, whatever may be said in the opinion. Whether it is within the power of the legislature to authorize the imposition of a greater rate of taxation upon any part of the property of a detached portion of any county or township to pay indebtedness contracted by such county or township prior to its division, than upon the property of the county or township itself, is not decided in this case. The only effect of this decision is, that it announces the principle that the legislature may when dividing a county or township relieve the personal property of the detached territory from all liability for previous debts of the county or township while continuing the liability of all the other property. Nothing else is decided. The judgment of the court below will be reversed, and cause remanded for further proceedings in accordance with this opinion. All the Justices concurring.	[ -16, 126, -48, -66, 90, -32, -118, -40, 56, -79, -93, 119, -85, -54, 16, 61, -14, 127, 85, 43, -43, -77, 51, 3, -80, -13, -45, -43, -77, 77, -26, 87, 76, 33, 74, 53, 70, -53, -43, -44, -114, -114, -117, 77, -40, 64, 52, 59, 82, 75, 85, -49, -77, 44, 24, -25, 41, 44, 89, 57, -128, -72, -66, -59, 123, 7, -79, 103, -104, 3, -8, -116, -128, 25, 0, -24, 123, -74, -106, 117, 5, -103, -87, 98, 103, 0, 9, -1, -32, -103, 14, -46, 45, -90, -107, 88, 115, 8, -99, -97, 116, 80, 7, 126, -30, -123, 31, 124, -123, -118, -74, -79, -49, 116, -110, -127, -50, 1, 19, 65, -58, 6, 95, 101, 50, 27, -97, -20 ]
The opinion of the court was delivered by Brewer, J.: Appellant was convicted in the district court of Brown county, under §1, ch. 72, Laws of 1874, (Comp. Laws of 1879, p. 367,) of the offense of selling and disposing of mortgaged personal property, with the intent of defrauding the mortgagee thereof; and from such conviction he appeals to this court. Various errors are alleged, but many of them we think are without foundation, and require only a brief notice. Among them may be mentioned the following: It is insisted that á new trial should have been granted, because from the affidavits filed on the motion, it appears that one of the jurors had not been a resident of the state for six months^ and was not therefore an elector or a qualified juror; but it does not appear that any questions were put to the juror on a preliminary examination, or any effort made to ascertain his residence or qualifications, or any statements dr representations made by him with reference to such residence or qualifications, or any imposition practiced upon the defendant; or even that defendant’s counsel was not fully informed as to his non-residence and disqualification. It simply appears that the juror was accepted and sworn without being challenged. Under those circumstances we do not think a trial is vitiated, although it subse- ‘ , , quently appears that a single juror was under age, or had failed to reside in the state long enough to become an elector. (Rex v. Sutton, 8 Barn. & Cress. 417; Costly v. The State, 19 Ga. 614; Lisle v. The State, 6 Mo. 426; Chase v. The People, 40 Ill. 355.) Again, the case was commenced before a justice of the peace, under a complaint duly verified. This complaint charged that “I. N. Speers and Company” was the party intended to be defrauded. While the case was pending before the justice, the words “and Company” were stricken out from the complaint, on motion of the county attorney, and the case proceeded to trial upon the complaint thus amended, and without any reverification. After the conviction, the defendant appealed to the district court, and the case went to trial. After the jury was impanneled, a new and amended complaint, properly verified, was, by leave of the court, filed. It is insisted that this was erroneous; that there was at the commencement of the trial in the district court no verified complaint on file, and that therefore there was no valid proceeding pending against defendant, nothing which could be amended, and that the court had no power to permit the filing of a new anc^ verified complaint. In this, counsel is mistaken. There was a prosecution pending against the defendant, a complaint filed whether defective or not; and if defective, the court had the power to permit the filing of a new and perfect complaint at any stage of the proceedings. (Comp. Laws 1879, ch. 83, § 22.) The fact that an amendment was made before a justice of the peace did not exhaust the power of the justice or that of the district court in the matter of amendment, or the power of the latter to permit the substitution of a new and perfect complaint in lieu of one insufficient and defective. Whatever rights of continuance or otherwise the defendant might have had upon the filing of the amended complaint, such rights did not affect the power of the court in respect to the filing of such new complaint. As no continuance was asked, we see no error in the ruling of the district court in this matter. Again, it is urged that the amended complaint should have been quashed, on the ground that it charged a series of crimes instead of one distinct and separate offense. This objection also is without foundation. It alleges that defendant executed a mortgage, and that, with intent to defraud the mortgagee or his assigns, he proceeded to sell and dispose of the mortgaged property, as follows; and then it sets out in detail the disposition of the various articles of property to different persons. Now it is insisted that each separate sale or disposition of any single article of property was a separate and eom- . píete offense, and that therefore several offenses were improperly joined. This is a mistake. There was only one mortgage set forth, and the various acts of the defendant in selling and disposing of the property were grouped together in order to show that the defendant’s action in respect to the mortgaged property was with intent to defraud the mortgagee.' The offense is, the disposition of the mortgaged property with the intent to injure; and it is proper, if not necessary, in order to show such intent, to set out the mortgagor’s action with respect to all the mortgaged property. We do not mean to decide that the mortgagor may not dispose of even one of several articles mortgaged with the intent to injure and defraud, or that a •complaint would be defective if it failed- to show what disposition had been made of all the property; but we do hold that, where but a single mortgage is shown, although including several articles of property, it is proper in the one complaint to set out the disposition made by the mortgagor of each separate article, and then to charge that, by such disposition, the mortgagor intended to injure or defraud; and that, in so charging, but a single offense is charged. ' Again, it is objected that the amended complaint upon which the case was tried is fatally defective in failing to allege that the offense was committed within the county of Brown and within the jurisdiction of the court trying the offense. This objection we think must be sustained. The complaint is entitled u State of Kansas, County of Brown,” but this only describes the place in which the prosecution is had, and does not of itself and without any words of reference thereto in the body •of the complaint, locate the place at which the acts complained of were done. It states that on a certain date the •defendant executed a chattel mortgage on certain specified property, which mortgage upon- the same date was filed for record; but it does not allege where this mortgage, was exe cuted, or where filed. The mortgage included certain animals and some growing crops. While the land upon which the growing crops stood was described as in Brown county, there was nothing to show that the animals were ever within said county, or even' within the state. The complaint then proceeds to charge the various sales and dispositions of the mortgaged property, but fails to state where they were made. The nearest approach to any statement of the venue is, that the defendant gathered the crops growing on the lands named. It alleges that he mixed and confused the crops when gathered with'other crops grown by him, and thereafter consumed, destroyed and disposed of them; but it does not allege that this mixing and confusion or that any sale or disposition was made within the limits of Brown county, or even within the limits of the state of Kansas. So that, taking the complaint through the whole matter of venue stated, in that the defendant mortgaged crops growing on certain lands in Brown county and gathered those crops, it nowhere appears directly or indirectly that he did any other act in reference to the mortgage or the mortgaged property within the limits of Brown county, or even within the limits of the state. The attention of the court was called to this specific defect before the case went to thejury,butno amendment was made to remedy it. After the verdict was returned, a motion in arrest of judgment on the same ground was made and overruled. A motion for a new trial, in which the same matter was called to the attention of the court, was also made and overruled, and judgment was entered upon the verdict. There can be no question but that the complaint is defective; for all th.at it discloses, every wrongful act of the defendant, may have been committed in a different state; and of course if so committed, the district court could have had no jurisdiction to try and punish therefor. Now whether, after verdict, the defect is one which can be considered in a motion for an arrest of judgment, we need not stop to consider, for here pending the trial, and before the case had gone to the jury, the attention of the court was called to the defect; and although the point does not seem to have been made immediately after the filing of the amended complaint, and although a motion to set such complaint aside was then filed, based upon several grounds,- not including the present objection, (which motion was properly overruled,) we do not think the party was thereby precluded from raising the objection at any time before the case was submitted to the jury. It is probable, too, that the court might, even after the testimony was all finished, have permitted an amendment of the complaint, so as to remedy this defect; but no amendment ■ was made, none was asked, and the case was sent to the jury upon the complaint as it stood. In this was error, and for this error the judgment must be reversed, and the case remanded for a new trial. See the following authorities: Mau-Zau-Mau-Ne-Kah v. The United States, 1 Pinney (Wis.) 124; People v. Gregory, 30 Mich. 371; Territory v. Freeman, McCahon, 56; State v. Slack, 30 Tex. 354; Field v. The State, 34 Tex. 39; McBride v. The State, 10 Humph. (Tenn.) 615; Wicksham v. The State, 7 Coldw. (Tenn.) 525. Counsel also criticise the instructions. We have examined them, but see no error. We do not understand their import to be as counsel claims. They do not, as we understand them, deny the right of a party to place a second chattel mortgage on property belonging to him; they simply assert that one who has given a chattel mortgage on property may not thereafter conceal, sell, or otherwise dispose of such property with the intent to injure and defraud the mortgagee, and that the manner of such subsequent disposition and the effect of such disposition on the rights of the mortgagee are to be considered in determining with what intent the disposition was made, and that a party must be presumed to have intended what is the natural result and effect of his actions. The court commented, and we think properly, upon what actions tend to indicate a fraudulent, and what the absence of any fraudulent intent. We see no reason to criticise or condemn these instructions; but for the error heretofore mentioned, the judgment must be reversed, and the case remanded for a new trial.	[ -16, -22, -7, -66, -72, 96, 34, -40, 0, -95, 38, 115, 105, -58, 1, 105, -13, 61, 85, 122, -60, -78, 55, 75, -78, -77, -37, -43, -79, 73, -28, -42, 12, 48, -62, -11, 102, -62, -57, 20, -114, -122, 9, 68, 80, 104, 52, -2, 68, 11, 117, -114, -29, 42, 61, 67, 107, 40, -53, 61, 80, -7, -118, -123, 77, 6, -77, -90, -102, 3, -8, 44, -104, 53, 0, -24, 115, -106, -122, 84, 15, 25, 12, 102, 98, 1, 53, -49, -24, -127, -113, 127, -97, -89, -112, 81, 75, 14, -74, -99, 116, 18, 38, -4, -25, -108, 25, 124, 7, -49, -42, -77, 15, 54, -102, -61, -9, -93, 48, 113, -52, 114, 93, 71, 56, 91, -50, -26 ]
The opinion of the court was delivered by Valentine, J.: This is an action brought by Joseph Stager against Eldred Harrington before a justice of the peace of Hiawatha township, Brown county, to recover $779, as damages, alleged to have been caused to the plaintiff’s cattle by reason of the defendant bringing into Brown county, from the country south of Kansas, a herd of cattle commonly known as Indian cattle, or Texas cattle, which herd of cattle communicated to the plaintiff’s cattle a deadly disease commonly known as Spanish fever, or Texas-cattle fever, or splenic fever, and thereby injured and caused the death of many of the plaintiff’s cattle. The action was brought under the act of the legislature of Kansas passed February 26, 1867, with its various amendments adopted in 1872 and 1873, commonly known as the “Texas-cattle law.” (Comp. Laws 1879, p. 929, et seq.', art. 9.) A trial was had before the justice of the peace and a jury of twelve men, which resulted in a verdict and judgment in favor of the plaintiff, and against the defendant for $425 and costs. The defendant then took the case to the district court on petition in error, where the judgment of the justice of the peace was reversed, and the cause was remanded to the justice for a new trial. The plaintiff, Joseph Stager, as plaintiff in error, now brings the case to this court for review, claiming that the district court erred in reversing the judgment of the justice of the peace. I. A voluminous printed brief has been filed in this court, by the counsel for each of the parties, respectively, each brief containing many matters which should have been left out. Counsel for plaintiff now moves the court to strike from the files, and from all consideration in this court, the brief of defendant, on the ground that it contains matters which are scurrilous, scandalous, libelous, impertinent, disrespectful to the court, insulting to its dignity, and calculated to provoke from the plaintiff’ a reply in kind. "Whether this brief should be stricken from the files of the court, and from all consideration by this court, is the first question presented to us for our consideration. The brief certainly contains very much that has no proper place in any brief. It not only criticises unfairly some of the acts of the trial court, and of the counsel for the plaintiff, as such acts are shown by the record of the-case, but it goes beyond the record of the case for materials,, for the purpose of exhibiting counsel for plaintiff in a ridiculous and unenviable attitude. In our opinion, it treats both the counsel for plaintiff and the justice before whom the-case was tried, with injustice and undeserved indignity. It is certainly a brief that deserves censure. Of course, fair and proper criticism is always allowable. Counsel, in the-presentation of their cases to the supreme court, as well asín their arguments in all courts, must be allowed considerable latitude in the discussion of questions supposed to be involved in their cases; and wherever they find anything that seems-to be wrong, and injurious to their client’s interests, it is-their privilege, as well as their duty, to criticise and expose it. Criticism properly belongs to both courts and counsel;, and everything that has any connection with the case under consideration — everything that can in any manner affect the case, and everything that.in fact transpires in the case, if brought to the attention of the court for its consideration, is-a proper subject for comment and criticism, both by court and counsel; and it may not only be commented upon and criticised in a friendly spirit, but in some cases it may also be the-subject of the severest censure, and even of condemnation and denunciation. But criticism, as we have said before, should always be fair; and in courts of justice it should also be dignified and respectful. It is seldom that anything is gained by unfair criticism; generally it tends to demoralization and wrong, and sometimes it reacts against the party resorting to it. To abuse the adverse party, or his counsel, or his witnesses, as counsel sometimes do, is not only wrong in itself, but it generally reacts against the party whose counsel is guilty of the abuse, and sometimes affects most injuriously the client’s cause. This is especially true in trials before juries; for juries very generally sympathize with the side that is abused. There have been cases in this court, though not many, where counsel have spoken disparagingly or sneeringly of the trial court. Now such conduct does not, in the estimation of the supreme court, lift its author to the loftiest height of professional standing and character. Indeed, we think that such conduct generally tends to lower the professional character of the counsel who feel that it is necessary to resort to it. But while it is wrong to unfairly criticise the actions of any person in cases where the subject-matter of the criticism is really involved ih the case or has some connection therewith, yet it is much more censurable for counsel to go outside of the case to find his materials for his criticism. It is always wrong to drag outside matters into the ease for the purpose of holding up a party or his counsel, or others, to ridicule or contempt; and this is just what the plaintiff claims that the defendant’s brief has attempted to do in the present case. Of course, counsel in the argument of a case must be allowed to occasionally go outside of the mere facts of the case for matters of illustration and argument; but these matters of illustration and argument should be such as are generally recognized — such as all well-informed persons are presumed to know, and such as cannot by any reasonable possibility prove derogatory to the personal character, reputation or standing of any person having any connection with the case. But while the defendant’s brief is unquestionably censurable, yet the plaintiff’s brief is not wholly free from fault. It also contains some matters which have no proper place in any brief; and evidently it tended to provoke some, of the unfair criticism found in the brief of the adverse counsel. We have therefore come to the conclusion to strike both briefs from the files of this court, and to suppress all consideration of their contents, and to decide the case upon the record and the petition in error filed in this court. We shall now proceed to the consideration of the merits of this case, as presented by the record and the petition in error filed in this court. II. We shall assume, for the purposes of this case, that the act of the legislature passed February 26, 1867, with its various amendments adopted in 1872 and 1873, commonly known as the “Texas-cattle law,” is constitutional and valid. (Comp. Laws 1879, p. 929, et seq., art. 9.) There certainly is a great necessity for some such law. If that class of men who care nothing for the rights of others were allowed by law to bring cattle to Kansas from Texas and the Indian country whenever they might choose, and thereby spread disease and death among our native cattle, it would either make cattle raising in Kansas so hazardous a business that but few men would wish to engage in it, or it would lead to such concerted force, and possibly mob violence, on the part of the cattle raisers in Kansas, that those who care nothing for the rights of others would hardly dare to bring their southern, death-disseminating cattle among the native cattle of this state. There are several differences between this act of the legislature of Kansas and a similar act of the legislature of Missouri, which the supreme court of the United States, in the case of Railroad Co. v. Husen, 95 U. S. 465, declared unconstitutional and void; and, with these differences, the supreme court of the United States would perhaps declare the act of the legislature of Kansas constitutional and valid. It would not, however, make any very great difference, so far as future cases are concerned, whether the act of 1867, and amendatory acts, were declared unconstitutional or not, for we now have a new and different act, intended to effect the same 'purpose, passed in 1881. (Laws of 1881, p. 292.) It is unnecessary to say anything with reference to § 1, chapter 82, of the Laws of 1861, page 279, for this action is not prosecuted under that section, and that section can have no possible application to this case. III. Justices of the peace may allow bills of exceptions in eases tried before them, whether tried before the justice alone or before the justice and a jury. (Justices’ Act, §§112, 112a, Comp. Laws 1879, p. 718.) We do not think that the justice is in any case required to use a seal, for there is no provision of law anywhere requiring or allowing him to have a seal. Certainly in a ease like this, where the case is tried before the justice and a jury, the justice is not required to use a seal. [Sec. 112, supra.) IV. We do not think that the recess of two or three minutes taken by the justice’s court, without the justice’s admonishing the jury, could possibly, have worked any prejudice to the rights of either party. Neither party objected or took any exception at the time, and nothing prejudicial is shown. (The State v. Stackhouse, 24 Kas. 445, 454.) V. It.appears that after the jury retired to consider of their verdict, the justice of the peace entered the jury-room, in the absence of the parties and their counsel, and gave to the jury instructions. As to whether he gave them the same instructions only which he had previously given.them before they retired, or whether he gave them some additional instructions, the evidence is contradictory. It was error, however, for the justice to even enter the jury-room while the jury were deliberating upon their verdict. And his giving them instructions increased the error; and if he also gave the jury any instructions in addition to those given before they retired to consider of their verdict, the error was still greater. (The State v. Brown, 22 Kas. 222, 230, 231; Hoberg v. State, 3 Minn. 262; Fish v. Smith, 12 Ind. 563.) VI. The evidence in this ease tended to show that the plaintiff’s herd of cattle were born and raised within six miles of Magazine, in Logan county, Arkansas, and that they were purchased there by the plaintiff, and shipped to Kansas, and that they had never been in the Indian territory nor in Texas, and that none of them were Indian cattle or Texas cattle. The record shows that the justice of the peace refused to give any instructions to the jury that if the cattle were not Indian cattle or Texas cattle, and had not been brought from the Indian country south of Kansas, or from the state of Texas, the plaintiff could not recover. In this we think the trial court erred; but we shall have more to say upon this subject hereafter, and before we conclude this opinion. VII. The same reason that made the refusal to give said instructions to the jury erroneous, also made the admission of the testimony of the witness J. P. Winslow erroneous. Such testimony was, in substance, that the people living in the vicinity of Magazine, Logan county, Arkansas, where the defendant’s cattle were born and raised, and where he purchased them, said that northern cattle could not live there, but would die within a year or two after being brought there. Such testimony had no reference to Indian cattle or Texas cattle, or cattle from the country south of Kansas, and it was highly misleading, injurious and prejudicial to the defendant’s case. VIII. The trial court gave the following instruction to the jury, to wit: “If the defendant attempts to show that the disease which destroyed the plaintiff’s cattle was communicated by some other herd of southern cattle, the burden will be upon him to establish this fact by a preponderance of the evidence, if the plaintiff has made out a prima-facie case that his cattle were diseased by defendant’s cattle.” This instruction is erroneous. The burden of proof in establishing a case did not at any time shift from the plaintiff to the defendant. It was necessary at all times that the plaintiff should show by a preponderance of the evidence that the disease which destroyed or injured the plaintiff’s 'cattle was communicated to them by the defendant’s cattle. IX. A new trial may be granted by a justice of the peace, where the case has been tried before the justice and a jury, and where “the verdict was obtained by fraud, partiality, or undue means,” or where “the. verdict is not sustained by sufficient evidence, or is contrary to law;” (Justices’ Act, §110.) A justice of the peace probably cannot grant a new trial upon any other grounds, or for any other reasons, than those just mentioned. The defendant moved for a new trial in this case, upon the following grounds, to wit: First, errors of law occurring at the trial, and duly excepted to; second, verdict against the law of the case; third, verdict against the evidence; fourth, misconduct of the justice. Now if thede fendant’s cattle were not Indian cattle or Texas cattle, and if they did not come from the country south of Kansas, then the verdict in the present case was unquestionably against the law of the case; and if the verdict was procured by the act of the justice, in entering the jury-room in the absence of the parties and their counsel, and while the jury were deliberating üpon their verdict, then the verdict was also obtained by undue means. The whole case was tried upon the erroneous theory that it was unlawful to bring the native cattle of Arkansas to the state of Kansas. Evidence was erroneously admitted upon this theory, and instructions were erroneously given and refused upon the same theory, and the verdict was rendered upon such theory. The verdict is undoubtedly contrary to law, and was probably obtained by •undue means. It must be remembered that in cases of this kind there is no appeal, and the justice of the peace has jurisdiction to an unlimited, extent; therefore the statutes should be construed liberally, so as not only to give the justice the right to grant new trials where it is claimed that the verdict is against the law or the evidence, or has been obtained by undue means, but also to give the appellate courts jurisdiction ■to reverse the decision of the justice of the peace, where he has failed or refused to grant a new trial, where a fair and just verdict has not been rendered. In cases of this kind where an erroneous verdict has been rendered, the party aggrieved has no redress, except to apply to the justice for a new trial, and, if refused, to take the case to the district court •on petition in error. X. The main question in this case is, whether the said statute of 1867, with its amendments, makes it unlawful to bring the native cattle of Arkansas into this state. The justice •of the peace held that it does, while the district court held •otherwise. In 1861 the state of Arkansas was specially mentioned in the southern-cattle prohibitory act passed that year. (Laws of 1861, p. 280, §§4, 5.) The act passed that year made it unlawful to bring cattle into Kansas “ from the states of Texas, Arkansas, or the Indian territory lying south of the state of Kansas.” In 1865 another act was passed, leaving out the state of Arkansas, and making it unlawful to bring cattle into this state “from the state of Texas, or from the territory south of the south line of this state.” (Laws of 1865, p. 159, §1.) In 1867 the law now under consideration was passed, making it unlawful to bring into Kansas “any cattle from the Indian territory south of Kansas, or from the state of Texas;” and §§ 4 and 5 of the act of 1861, making it unlawful to bring cattle into Kansas “from the states of Texas, Arkansas, or the Indian territory lying south of the state of Kansas,” were repealed. (Laws of 1867, pp. 263, 267, §§ 1,15.) In 1872 the law of 1867 was amended, and it was then made unlawful to bring into Kansas “any cattle from the country south of Kansas, commonly known as Indian cattle or Texas cattle;” and this portion of the law was not again amended or repealed until 1881, when a new act was passed. The plaintiff’s cattle were injured in the summer of 1880, before the act of 1881 was passed, and while the act of 1872, amending the act of 1867, was in force. Now under the statutes as they existed in 1880, when the plaintiff’s cattle were injured, we do not think that it was unlawful to bring native cattle of Arkansas into the state of Kansas, where no other reason existed for their exclusion except that they were cattle from Arkansas; and the fact that the state of Arkansas was once expressly included in the prohibition and was afterward expressly left out, would seem- to settle this question beyond all controversy. Arkansas cattle are not Indian cattle or Texas cattle, and Arkansas is not south of Kansas; while the only cattle mentioned in- the southern-cattle prohibitory act are Indian cattle and Texas cattle, and the only country to which the prohibition extends is the country south of Kansas.- Now the only country south of Kansas, until you reach the gulf of Mexico, is the Indian territory and the state of Texas. East is not south; and neither is a direction which is partly east and partly south. A combination of the two, or a direction between the two, does not make either. The word “south” simply means south'; and a country south of Kansas is one simply south of some portion of Kansas, and not one southeast of the most easterly portion of the state. We think there can be but little doubt upon this question. XI. The district court, when it reversed the judgment of the justice of the peace, remanded the cause for a new trial, but rendered judgment against the plaintiff for all costs that had been made in the case, both before the justice and in the district court. In this we think the district court erred. The district court had authority to render judgment for only such costs as had been made in that court, and it should not have rendered any judgment with reference to the costs made in the justice’s court. Section 566 of the civil code has no application to a'case of this kind. That section applies only to cases which may be retained, and which are retained, for trial and final judgment in the district court; and it does not apply to, such cases as this, where the cause should be remanded, and is remanded, to the justice of the peace for final trial and judgment. The judgment of the district court will b.e modified in this respect. In other respects it will be affirmed. All the Justices concurring.	[ -80, -50, -75, -97, 8, 97, 32, 24, 64, -95, -12, 83, -115, -54, 5, 123, 103, 61, 21, 123, -26, -78, 23, -29, -78, -46, -47, -33, 57, 75, -90, -10, 13, 48, 74, -99, -90, -22, -63, -36, -50, 45, -119, -24, 90, 8, 60, 107, 114, 83, 49, 46, -29, 42, 60, -45, 41, 40, -5, 36, 33, -15, -70, 7, 30, 2, -77, 34, -122, 5, 74, 62, -110, 51, 64, -4, 82, -92, -122, -44, 45, -87, 12, -90, 99, 113, 21, -19, 104, -72, 109, 90, -119, -90, -112, 72, -29, 0, -106, -99, 52, 52, -121, -6, -25, 4, -99, 28, -121, -101, -108, -73, -49, 60, -104, 17, -5, 39, 16, 113, -63, -94, 104, 69, 24, -109, -122, -108 ]
The opinion of the court was delivered by Brewer, J.: This was an action against the surety in an attachment bond, to recover damages for the wrongful suing out of the attachment. The facts in the case as disclosed by the record are as follows: On the 18th day of June, 1879, one S. J. Bever commenced an action in the district court of Greenwood county against W. S. Reece, the plaintiff in this action, upon a promissory note. In such action he sued out an order of attachment and caused it to be levied upon certain personal property and real estate of the defendant. The undertaking in attachment was signed by Kerr as surety. The affidavit alleged as ground for issuing an attachment, that the defendant had absconded with intent to defraud his creditors. After the levy of the order of attachment, the personal property was sold by order of the district judge as perishable property, and the proceeds held to abide the result of the action. On May 19, 1880, judgment was taken by default, the proceeds of the sale of personal property were ordered to be applied to the satisfaction of the judgment, and also a writ was ordered for the sale of the realty to satisfy the balance. On the 17th day of July, 1880, the judgment was set aside upon motion of the defendant, and on the 13th day of September, 1880, the attachment was also set aside on motion of the defendant, the court finding that at the time of the commencement of the action the defendant had not absconded with intent to defraud his creditors, and that he did not conceal himself so that summons could not be served upon him. On the first day of July, 1880, and while the order of sale was in the hands of the sheriff, and before moving to set aside the judgment, the defendant went to the clerk of the district court and paid to him the balance of the judgment in full. The plaintiff in this action claimed that he had been damaged by the proceedings under this wrongful attachment in the sum ■of $2,927.55, for which he asked judgment. The defendant in his answer alleged that “The aggregate loss sustained by plaintiff by reason of said order of attachment, including value of property, money paid out for expenses and attorneys’ fees, was $1,000, and no more.” The case was tried before the court without a jury, and judgment rendered for ‘$1,000. As this amount was the sum admitted by the answer to be the loss of plaintiff, the only question in the case is, whether the plaintiff was entitled to recover at all; and nearly every question which can arise as to his right of recovery has been settled by prior rulings of this court. It has been held that the attachment is but an auxiliary proceeding, and that the action may go on to judgment whether the attachment stand or fall, (Boston v. Wright, 3 Kas. 227;) and as a result of this, that an action for a wrongful attachment does not depend upon the question whether the claim sued on in the attachment case was valid or not, and therefore that it may be maintained, whether iuderment has or has not been entered in such J ° action. (McLaughlin v. Davis, 14 Kas. 169.) It has also been decided that where the ruling of the trial court upon a motion to dissolve an attachment is rested alone upon the truth or falsity of the grounds stated in the affidavit for the attachment ruling, such ruling, until reversed by proper proceedings in error, is conclusive. (Hoge v. Norton, 22 Kas. 374.) And again, that a payment of a judgment made to a sheriff with an execution in his hands to enforce payment, is an involuntary payment, and does not preclude the defendant from thereafter ehallenging in proper proceedings the validity of the judgment. (Auld v. Kimberlin, 7 Kas. 601.) Now, applying these rulings to the case at bar, and it is shown that upon motion the district court dissolved the attachment on the .ground that the reasons stated in the affidavit therefor were untrue, and that thérefore the attachment was wrongfully issued. This decision unreversed is conclusive on that question, and gives to the defendant in the attachment proceed ings a right of action against the plaintiff and surety on the attachment bond, though the defendant in the attachment suit, after the entry of judgment therein and after the money in the hands of the sheriff arising from the sale of the personal property had been applied in satisfaction thereof, paid the balance apparently due upon such judgment; yet such payment, having been made while an order of sale of his real-estate was in the hands of the sheriff, was an involuntary pay- • ment, and did not preclude him from thereafter challenging the validity of the judgment. The fact that this payment was made to the clerk and not to the sheriff, does not make it any the less an involuntary payment. He could make this challenge either by proceedings in error in this court, or by motion in the district court, as the circumstances of the case should require. He proceeded in the district court and there had the judgment vacated and set aside, the court finding that he had a valid defense to such action. He also filed his motion and obtained a ruling of the district court, setting aside the attachment as wrongful. Counsel-place much stress on the fact that Reece paid the balance of the judgment before commencing any proceedings to have it set aside. They say: “Now we do not contend that the judgment, before and up to the time of payment of said judgment by said Reece, was valid, for the want of proper service upon him, but do insist upon our position that any voluntary appearance before judgment would be equivalent to a service, or the voluntary payment of a judgment after its rendition, without protest, would have the effect to cure the want of service before judgment. If this position is correct, then what effect would' this have upon the attachment proceedings in said action? It seems to us that the attachment proceedings were immerged in the judgment, and a part of it, and that a payment of the judgment extinguished the judgment and the attachment proceedings therein.” It is unnecessary to inquire what might be the effect of this payment if it had been a voluntary payment, if it had' been made without process in the hands of the officer; because, as the record here shows, the payment, though perhaps-made without formal protest, was made while an order of sale was in the hands of the officer for execution. In such* case, as we have already decided, 7 Kas., supra, the payment is an involuntary one; it is not an admission of the validity of the proceedings, and does not work any estoppel against the defendant. It would be a harsh rule if the defendant were precluded, by the payment of the judgment under such, circumstances, from thereafter questioning either the judgment or the attachment proceedings. Suppose that he owed this debt and was willing to pay it: why should he be precluded by the fact of paying it, from challenging the wrong that has been done to him by taking advantage of a temporary absence, and placing upon the records of the court a false-charge of dishonesty and wrongful conduct against him, and then sacrificing at forced sale a large amount of his property?' It is equitable as well as legal, that, having paid only when process was in the hands of an officer to compel payment, he-should not be precluded thereby from righting the wrong that has been perpetrated upon him. Another matter counsel refer to: They sought to show that after the entry of the judgment against Reece and the payment by him of the balance to the clerk, and before any proceedings commenced to set the attachment and judgment aside, the surety had in his possession money and property belonging to Bever, the-principal in the action, and that having no notice or expectation of any proceedings on the part of Reece to challenge the-regularity of what had been done, he surrendered such money and property to Bever or upon his order. We cannot see-that this, if true, would make any difference. If the attachment was wrongful, Reece had a right to. proceed against plaintiff or his surety at any time within the period of the-statute of limitations; and he lost no right of action against, the surety by a failure to notify him that he intended to bring such action. Counsel also sought to show that at the time of the motion to vacate the judgment and that to set aside the attachment,. Bever, the plaintiff, was not present, and had no actual knowl edge of such motions, and that the attorneys who did appear ■on the hearing of such motions, and did receive the notices thereof, were not authorized to act in that behalf for him. But they were.the attorneys who appeared for Bever at the time of the judgment, to wit, May 19,1880. They appeared at the time of the hearing of the motions, and acted for Bever without suggesting any want of authority to so appear; and we do not think that the court committed any error in refusing to permit the surety to show that they had in fact no authority from Bever. The last of those motions was heard in September, 1880, and this case was tried the 14th day of May, 1881; and if Bever had not repudiated the action of the counsel who ■appeared for him during all these months, it scarcely lies in the mouth of the surety at this late date to be raising any ■objection on account of any supposed want of authority. Indeed, could the surety raise such a question in this collateral action at any time? These are the only questions in the case, and in them appearing no error, the judgment of the district court will be affirmed. All the Justices concurring.	[ -16, 104, -104, -66, -102, 96, 42, -104, 82, -31, -95, 83, -21, 66, 1, 41, -73, 105, 101, 104, 69, -73, 87, -29, -46, -13, -53, -59, -79, 79, -28, -41, 13, 32, 74, -39, -28, -56, -59, -36, -50, -125, 57, -20, -41, 72, 48, -69, 18, 75, 97, 46, -29, 42, 53, 67, 77, 45, -21, -87, -48, 105, -98, 5, 123, 4, -111, 103, -104, 66, -56, 46, -68, 49, -128, -24, 115, -74, -122, 84, 103, 27, 12, 118, 34, 48, -75, -23, -116, -120, -122, -66, -65, -89, -109, 88, 11, 73, -66, -99, 115, 80, -121, 124, -24, -115, 25, 108, 7, -50, -42, -105, -115, 56, -102, 3, -21, 105, 48, 97, -51, -96, 92, 103, 48, -101, -57, -5 ]
The opinion of the court was delivered by Horton, C. J.: The only question involved in this case is, as to the constitutionality of ch, 113, Laws of 1877, entitled “An act to regulate the salaries of county clerk and county treasurer in certain counties therein named.” The objections urged against the act are two: first, that it is in violation of § 16 of art. 2 of the state constitution, which ordains: “No law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.” Second, that it is also in violation of § 17 of art. 2, requiring that “All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted.” Neither of these objections is well taken. That portion of § 16, art. 2, quoted, was not intended to abolish the doctrine of repeals by implication, and to reverse the established maxim, that where statutes are inconsistent with each other, the la'tter repeals the former. The constitution of Maryland contains the following clause: “No law shall be revived, amended or repealed by reference to its title only.” The court said, in Davis v. The State, 7 Md. 152: “This was intended to prevent incautious and fraudulent legislation. It does not apply to an independent act using a new or reviving some previous policy of the state. In such cases, the enactment of one law is as much a repeal of inconsistent laws as if the latter were repealed by express words.” (Cooley Const. Lim. 185; Lehman v. McBride, 15 Ohio St. 573.) The act of 1877 is clearly inconsistent with §4, ch. 96, Laws of 1875, and if otherwise valid, repeals by implication . the statute so far as Phillips and Norton counties are concerned. While repeals by implication are not favored, the provisions of the statute of 1877 are so irreconcilable with the provisions of the statute of 1875 as to the counties mentioned in the statute of 1877, that both cannot stand. The latter, if otherwise constitutional, must be applicable to the counties of Phillips and Norton. The question presented under art. 2, § 17, is one of greater difficulty, and yet we think the statute of 1877 fairly comes within the decision of Beach v. Leahy, 11 Kas. 23. It was decided in The State v. Hitchcock, 1 Kas. 178, that the legislature must determine whether its purpose can or cannot be expediently accomplished by a general law, and the mere fact that certain results could be accomplished by a general law, does not necessarily avoid a special law passed to effect them. In the statute of 1875 it was provided that county clerks should receive as compensation for their services in counties of five thousand and less than ten thousand inhabitánts, $1,200. Now, there must have been reasons in the minds of the members of the legislature for reducing the compensation of such officers in the counties of Phillips and Norton. Certainly they intended to do so by the act of 1877. We are referred to the case of Darling v. Rogers, 7 Kas. 592, and Perry v. Robinson, 17 Kas. 248, as conclusive authority against the statute of 1877. In the first case, the legislature attempted expressly to limit the operation of a law of a general nature, entitled “An act in relation to fences.” The attempted repeal by implication affected only certain specified localities, and these only for a term of years; therefore, that case is not strictly in point. In Robinson v. Perry, supra, the statute referred to was not intended to be a complete and original law in and of itself; it was intended merely as an ariiendment of §1 of the act of 1869. The statute of 1877 is a special act as to Phillips and Norton counties, for the compensation of the county clerk and county treasurer of those counties, and of the “nature, form and wording” of a special law. The legislature, under the constitution, has discretion to determine the necessity for such special laws, and such statute is analogous to those conferring authority by special acts upon counties, townships.' and school districts to issue bonds. If we hold that this statute is unconstitutional for any of the reasons alleged, nearly all of the special acts relating to counties, townships and school districts would be wiped out. It is somewhat difficult to follow out the logical results of the decisions of Beach v. Leahy, supra, and Darling v. Rogers, supra, but a distinction has been made by this court in regard to the construction of §16, art. 2. As to the cases referred to in those two decisions, and within the opinion of the former case, we think the statute of 1877 can be sustained. Our conclusion therefore is, that the salary of the county clerk of Norton county, as fixed by law, cannot exceed $700 per annum, and that such salary shall be in full for all the services required by law to be performed in such office. The judgment of the district court will be reversed, with direction that judgment be entered for plaintiff in error. All the Justices concurring.	[ -76, -18, -36, -67, 42, -32, -93, -110, -102, -87, -91, 115, 41, 82, 21, 117, -14, 125, -15, 105, -58, -73, 23, -58, -78, -77, -41, -41, -79, 77, -10, 95, 76, 48, 74, -35, 102, -54, -63, -40, -114, 6, 41, -61, -47, -48, 60, 58, 114, 11, 117, -97, -29, 44, 28, -61, 41, 44, 89, -87, 80, -71, -98, -123, 111, 5, 51, 101, -104, -121, -36, 46, -104, 17, 0, -8, 115, -92, -122, 84, 109, -103, 12, 114, 103, 3, -83, -17, -120, -86, 6, -6, -99, -90, -110, 24, 10, 8, -66, -99, 124, 20, 2, 118, -30, 21, -106, 76, -124, -117, -110, -89, 11, 108, -118, 99, -9, -93, 48, 113, -48, -22, 95, 119, 17, -69, -98, -4 ]
The opinion of the court was delivered by Horton, C. J.: This action was brought by the plaintiff to-recover damages from the defendant for personal injuries received by him in having his wagon upset and himself thrown-out at an embankment on one side of Broadway, a street of Leavenworth city. When the evidence was closed on the-part of the plaintiff, a demurrer was interposed thereto by the defendant, which demurrer was sustained by the court: The court held, we should judge from the record, that it appeared from the evidence introduced on the part of the-plaintiff thát he contributed by his own negligence to the injury complained of, and therefore that he could not recover. This ruling is complained of. We perceive no error therein. The only negligence imputed to the city was the failure to guard, light or protect the sides of the streets so as to prevent persons passing along-from driving or falling over the embankment. The general faots are, that the accident occurred between eight and nine-o’clock on the 8th day of September, 1877. The plaintiff is-about fifty-four years of age; lives outside of the city of' Leavenworth, and follows gardening for a business. He sold his vegetables at the market in the city, midway between Fourth and Fifth streets, on Shawnee street, and had followed this business for a number of years. It was his custom incoming into the city to drive in on Fifth or Seventh street, and to go out on Broadway. He was well acquainted with-the street. The street was smooth and level, and of the width of about seventy feet; it was filled out to nearly its limit on-either side, and raised about four or five feet above the adjacent lots; there were no walls or banisters upon the adjacent lots, nor any railing on the sides of the street; there-were no obstructions or holes in the street, and plaintiff passed over it every day; he wras at the market until between eight and nine o’clock of the day of the injury, and then started for home, driving a one-horse wagon; a neighbor of his,, one Mrs. Murphy, was immediately behind, driving a horse hitched to a wagon; the night was dark, and when he reached Broadway, somewhat rainy; he had a lantern with him, but it was not lighted. As he was driving along, the east front wheel of his wagon suddenly went down on one side a little, and he stopped; Mrs. Murphy, who was behind, asked him when he stopped where he was going; his answer was, “he could not tell, it was so dark.” He then started again, and turned over; the horse stayed still, and only the wagon and driver went over the bank — the wagon on top and the driver under it. As to some parties, there might be negligence on the part of the city in leaving unprotected the small embankment on either side of the street the plaintiff was driving upon at the time he was upset. But as the plaintiff knew all about the street, his conduct under the circumstances was evidently careless and negligent. Knowing as he did, that there was no railing or other protection to prevent him from driving over the bank, when he found that his wheel was going down, and stopped, he ought at least to have taken more precaution before driving his horse on. He might have got out of his wagon and ascertained as to the part of the street he was in. He did not. With the exercise of ordinary prudence, he might have comprehended the situation when he stopped. He was not ignorant of the bank, and in driving on he acted very negligently — so much so that we concur with the district court in holding, from the whole evidence it appears that he directly contributed by his own negligence to the injuries he received, and that he was not entitled to recover in the case. The evidence was not sufficient to go to the jury. Counsel refer to the case of Osage City v. Brown, ante, p. 74, as one substantially like the one under consideration. In that case, unlike this one, the injured party had his foot caught in the sidewalk before such a warning of impending danger. The fact that a person attempts to travel on a street or sidewalk after he has notice that it is unsafe or out of repair, is not necessarily negligence. This depends upon a variety of circumstances. But one cannot of course heed lessly or recklessly run into danger. Here the plaintiff’s wagon had already reached the embankment on the side of the street, when the wheel went down, and if he had then taken the ordinary precaution of having examined, he could have prevented his wagon from going over the bank, and thereby in the exercise of ordinary prudence might have prevented the wagon from being upset, and thus saved himself from the severe injuries he received. After he had stopped he could have easily avoided the danger, by changing the direction of his horse. Knowing the embankment on either side of the street, and that there were no defects in the surface of the street, the dropping-down of his wheel must have necessarily suggested the idea to him that he was outside of the traveled road. He paid no attention, and drove on. “ Where there is danger and the peril is known, whoever encounters it voluntarily and unnecessarily cannot be regarded as exercising ordinary prudence, and therefore does so at his own risk.” (Schaefler v. City, 33 Ohio St. 246.) Before the jurors were sworn, the plaintiff on examination showed that two of the jurors were residents of Leavenworth city, and then attempted to show that they paid taxes upon property owned by them in the city. The court would not permit the facts to be shown, nor permit any of the jurors to answer the questions. This was error, as a resident citizen and tax-payer of a city is incompetent to serve as a juror in an action’wherein the city is sued by a party to recover personal injui’ies caused by the negligence of the city in maintaining a street in an unsafe and dangerous condition. (Gibson v. Wyandotte, 20 Kas. 156.) But this error was wholly immaterial, and is no cause for reversing the judgment. Upon his own statement and the evidence produced by him, plaintiff was not entitled to any judgment, and had no cause of action against defendant. The j udgment of the district court will be affirmed. All the Justices concurring.	[ -16, 104, -48, -114, 26, 104, 42, -38, 77, -93, -91, 91, -55, -63, 5, 113, -10, 109, -44, 43, -44, -77, 7, -125, -110, -45, 67, -35, -77, 72, 100, -41, 79, 48, 74, -99, -26, 72, 65, 92, -50, 7, 9, -20, 25, 72, 60, 122, 6, 75, -15, 30, -37, 46, 24, -61, -87, 40, -21, -95, -39, -15, -88, 7, 125, 22, 3, 38, -66, 7, 126, 14, -112, 57, 1, -8, 115, -94, -110, -44, 109, -103, 12, 102, 98, 33, 5, -17, 104, -88, 14, -14, 15, -89, -96, 16, 59, 33, -98, -103, 125, 48, 6, -4, -6, 12, 25, -28, 3, -113, -112, -79, -49, 52, -106, 29, -13, -81, -79, 101, -50, -16, 93, -27, 82, 27, -97, -34 ]
The opinion of the court was delivered by ■ Brewer, J.: The question in this case is one of exemption under the pension laws of the United States. The facts are these: To garnishee proceedings against the defendant in error, certain bankers garnished answered in these words: “In the month of April, Mr. White came into the bank with pension checks or drafts to the amount of twenty-eight hundred and twenty-six dollars and eighty-two cents, ($2,826.82.) He indorsed the same and passed them to me, and I gave him or his account credit for the said sum. We took and bought the cheeks or drafts in the usual course of banking, and after passing the amount of the face of the checks to White’s credit, sent the same to our correspondent at Kansas City or St. Louis for collection and returns as usual. Mr. White has checked out all of the said sum but four hun ■dred and fifty dollars; which sum is now due him from us, being the balance of the proceeds of said checks, which we ■obtained from the defendant in the manner stated. The checks or drafts we obtained from him were pension drafts, and were given to him, as we understood, in payment of a pension obtained by him from the government. The amount yet due him from us is a part of that which he obtained upon these pension checks or drafts, whatever they are called.” The garnishee proceedings were commenced on May 16th? and the answer made September 17th. Upon this answer, the district court held the property exempt, and discharged the garnishee; and upon this ruling, plaintiffs in error, plaintiffs below, come to this court. The exemption was sustained under the following section in the general pension act, U. S. Revised Statutes, p. 931, §4747: “No sum of money due or to become due to any pensioner shall be liable to attachment, levy, or seizure, by or under any legal or equitable process whatever, whether the same remains with the pension office, or an officer or agent thereof, or in course of transmission to the pensioner entitled thereto, but shall inure wholly to the benefit of such pensioner.” Was this ruling of the court correct? The first question is as to the scope of this section of the United States statutes. Does it create an exemption of moneys in the hands of a pensioner, or simply protect such money in course of transmission to him? The difference is obvious and vast. If the exemption attaches to the money absolutely, then practically the state exemption law is amended by a federal statute. Counsel for plaintiffs in error earnestly contend that the federal government has no power thus to amend a state exemption law; that it cannot provide that money in the hands of one citizen of Kansas shall not be subject to seizure for the payment of his debts, when a like sum of money in the hands of every ■other citizen of the state is by the state law subject to such seizure. Their argument would be entitled to serious consideration if it appeared that such is the intent and scope of the federal statute. But such is not the meaning of that statute; it does not attempt to invade the domain of stale legislation in respect to exemptions; its simple and obvious purpose is, to protect the donation , . 1 * . while in transit to the pensioner. Its language is not, “no^money in the hands of a pensioner,” or “no pension money,” but “no sum of money due or to become due to any pensioner.” The protection is to an undelivered sum •of money. This, which is implied in the first words of the section, is made more clear by its after language, for it prohibits seizure whether this sum of money due or to become due remains with^the pension office or an officer or agent thereof, or in course of transmission to the pensioner entitled thereto. To guard against any abuse or destruction, it thus specifies the various positions which money due or to become due can occupy, and in effect declares that pension money shall not be interrupted on its way to the pensioner. The last clause of the section, which reads, “but shall inure wholly to the benefit of such pensioner,” is qualified by and must be read in the light of the preceding words of the section. It is comprehensive language, but it is only language strengthening and making more plain the intention of the preceding words. It applies to money due or to become due, and not to money paid and in possession.' Nowhere in the section is there reference to pension money in the bands of the pensioner. It does not purport to exempt money in such hands from the operation of state laws, either those of taxation, or the ordinary statutes concerning exemptions and indebtedness. It is doubtless true that such statute is to be liberally construed, and so construed that the pensioner shall acquire full possession of his pension, free from any interception directly or indirectly in the course of its transit. Now turning to the facts of this case, and it is evidentathat¡the defendant had acquired full and absolute control of his'pension ; he had sold it to the bank; it had been passed to his general account, and hehad already used mostof it. He had not simply deposited the drafts for collection; but he had sold them to the bank, and the bank was his debtor for a balance upon his general account at the time of these proceedings. We have been referred to the case of Eckert v. McKee, 9 Bush, 355, in which the supreme court of Kentucky reached a conclusion different from that expressed by us in this opinion, and construed the statute as exempting the-money itself, even in the hands of the pensioner, and declared such an exemption within the power of congress. It is very likely that, on the facts as stated in the opinion in that case, even with the views we entertain of the scope of the-federal statute, we should have decided the case in the same-way; for it would seem that though the pensioner had indorsed the check, and sent it through an agent who had received the money from the bank, that the money had not in fact reached her, so that, in a liberal construction, it might be said that the pension was still in the course of transmission;: but we cannot agree with all that is said in the opinion. The section, as we understand it, simply protects pension money in transit; and here the facts are that the transit was ended,. the drafts had been sold, and the bank was a debtor in the balance of a general account to the- ° defendant, and hence the bank was liable as garnishee. See the case of Kellogg v. Waite, 12 Allen, 529, in which the supreme court of Massachusetts, while not deciding the question before us, uses language impliedly sustaining the-views we have expressed. See also Webb v. Holt, S. C. Iowa, March 24, 1882, 14 Cent. L. J. 318. The judgment-of the district court will be reversed, and the case remanded for further'proceedings in accordance with the views herein expressed. All the Justices concurring.	[ -47, 122, -40, -98, 10, 48, 42, -102, 80, -83, -73, 83, -23, 82, 20, 105, -13, 57, 49, 107, -41, -77, 23, -62, -42, -13, -104, -107, -79, 77, -20, 86, 12, 48, -62, -107, 102, -118, -29, -44, -114, 4, 8, 77, -7, -32, 48, 107, -60, 73, 97, -114, -29, 46, 28, 106, 73, 44, 89, -71, -32, -16, -113, -123, -21, 23, 32, 22, -104, 103, -40, 14, -100, 49, 1, -24, 122, -74, 22, -12, 107, -69, 45, 102, 102, -96, 117, 109, -100, -120, -82, -33, -113, -89, -42, 121, 107, 43, -99, -97, 126, 84, 38, 124, -22, 20, 27, 108, 3, -114, -42, -79, -67, 52, -102, -38, -17, -93, 50, 113, -50, -126, 92, 103, 59, -103, -114, -104 ]
The opinion of the court was delivered by Horton, C. J.: A. W. Callen, John Gross, John K. Wright, Henry Mitchell, A. Clough, R. E. Lawrensen and Moses Waters, with others, were sureties upon the official bond of Robert O. Rizer, the county treasurer of Davis county. His term of office as treasurer expired October 12, 1880, and there was due from him'as such treasurer the sum of $12,837.47. Of this amount, Rizer paid $1,248.55, leaving a balance due of $11,588.92. Afterward the parties above named, with other sureties, were sued upon the official bond of the defaulting treasurer to recover the moneys so withheld by him, and the suit was dismissed by compromise as to the said named parties, upon the payment by them of $3,500. On July 6, 1881, the sureties who had made this payment commenced their joint action against the plaintiff in error (defendant below), to recover $3,500, with interest thereon from the 5th day of March, 1881. Upon trial, judgment was rendered in their favor for $3,653.11; and the defendant below complains of this judgment, for several reasons. I. It is contended in his behalf that as the testimony shows that each plaintiff furnished his proportion of the total payment, they have no interest in common, and therefore not being united in interest could not be joined as plaintiffs. It appears from the record, that although Rizer was indebted in a sum exceeding $11,000, and an action had been brought against all of his sureties upon his official bond for the recovery of that amount, that a compromise was made by the plaintiffs below, whereby, for the consideration of $3,500, they were released and discharged from all further liability on the bond. While it is true that each of the sureties paid $500, or gave notes that were taken in satisfaction of $500, to make the $3,500, no one surety was released upon the payment of $500, but the whole of the $3,500 was jointly paid by said sureties for the defaulting treasurer; and the sureties were jointly interested in making the payment of $3,500, because the release was obtained, not upon the payment of $500 by each, but upon the joint payment of the $3,500. If the compromise with the commissioners had been that each surety upon his individual payment of $500 would be released and discharged from all liability, there would then be no joint or common interest between the plaintiffs; but as these sureties agreed jointly to settle with the county for $3,500 to obtain a discharge of all paying the $3,500, and thereafter performed their agreement by jointly paying said sum, they could join in a suit to recover the sum so jointly paid. In the case of Tate v. Rld. Co., 10 Ind. 174, to which we are referred by counsel of plaintiff in error, the plaintiffs were the owners of several lots, in front of which the railroad company erected for a road-bed in the street an embankment ‘and trestlework, which excluded them from the street. The court there held that the plaintiffs, though not united in interest with each other, had the right to join in an action to compel the company to fill up the street on each side of the • railroad track so as to make it passable, or to remove the road. We do not think this case is of any force against the ruling of the district court. The other authorities cited by the same counsel are to the effect that where two or more persons have separate causes of action against the same defendant, though arising out of the same transaction, they are not-allowed to unite and pursue their remedies in one action. We fully agree as to the law thus declared, but do not think the cause at bar controlled by it; because, under the compromise, a certain payment was agreed to be made for the discharge of the sureties, and this payment was jointly made by them for the discharge of all making the payment. The parties to this action were united in interest in making the compromise — in raising the-$3,500, in paying the $3,500, and therefore had a right to be joined as plaintiffs. (1.Parsons on Contracts, 5th ed., ch. 20, p. 20; Appleton v. Bascom, 3 Metc. 169; Hopkins v. Lane, [N. Y. Ct. App., Jan'y, 1882,] 13 Rep. 343; May v. May, 1 C. & P. 44.) In the last case the action was brought by the plaintiffs, to recover the sum of £446 paid by them as bail for the defendants. To make up this sum of money, each of the plaintiffs advanced his share. It was therein contended by defendants that separate actions ought to-'have been brought by each of the plaintiffs, because the money paid was the money of each, and that there could not be a joint action unless it were paid from a joint fund. The court was of opinion that as the plaintiffs made the payment to the defendants in one sum, and as a joint payment, the action could be maintained in the form in which it was brought. II. It is further urged that there was no legal evidence of indebtedness against Rizer which would make the plaintiffs liable on the bond. The objection is mainly based on the introduction in evidence of a book called a “ ledger,” kept by the county clerk of Davis county; Sec. 51, ch. 25, p. 281, Oomp. -Laws 1879, requires the county clerk to. keep the accounts of his county with the county treasurer in a book of the character produced before the court. And after the witness had stated his official position as county clerk, and that he had kept the accounts between the treasurer and the county, and presented in court the book in which such accounts had been kept in accordance with the provisions of the statute, the book was competent evidence. The book tended to establish that, at the termination of the second term of the office of Rizer, there was a balance in his hands of moneys collected as treasurer which he had not paid over. This, followed up with his refusal to account for said moneys, was at least prima facie evidence of an indebtedness against Rizer at such date, and therefore that the sureties were liable on his bond. If the deficiency had occurred in the prior term of the treasurer, or upon any other bond, the burden of proof, after the introduction of this evidence, was upon Rizer to establish that fact. III. Counsel argues that in making the payment the sureties were simply exercising their own judgment; that such payment was voluntary upon their part, and that the dismissal of the action upon the official bond was evidence that there was no valid cause of action thereon, and therefore that plaintiffs were not entitled in any event to recover the money so paid by them. We think in the first place, that it is clearly established upon the record that Rizer was indebted in a sum largely in excess of the $3;500 paid by the sureties. It further appears that he was present when the money was paid by the sureties. It does not appear that he made any objection to the payment, and under the circumstances, as the sureties did not pay the money until default had been made, and then made payment thereof in the presence of Rizer without objection from him, we must assume that such payment was made with his consent, and that he is liable therefor. The dismissal against these sureties seems to have resulted from the compromise between the county of Davis and the sureties, and the payment thereon by the sureties of the said $3,500. At least, the record will bear this construction. IY. The final objection is, that the evidence shows the payment of only $3,100 in cash — the balance, $400, being represented by a note. It seems that the note was accepted as-part payment of the $3,500. There is no intimation that the makers thereof are not fully solvent, and as such note was taken as part payment, it is sufficient to render Rizer liable to the sureties. Where the sureties pay a part of the debt of the principal by giving a promissory note therefor, they may maintain an action against the principal for money paid. (Doolittle v. Dwiqht, 2 Metc. 561; Chandler v. Brainard, 14 Pick. 285.) The judgment of the district court will be affirmed. All the Justices concurring.	[ -80, 104, -112, -34, 58, -32, 10, -102, -38, -32, -95, 87, -7, 10, 17, 117, -78, 93, 84, 106, -122, -73, 87, -27, -46, -13, -53, -51, -79, -52, -92, -43, 8, 44, 10, -99, 102, -30, -59, -48, -50, -128, -88, -20, -39, 72, 48, -69, 50, 75, 97, -114, -13, 59, 29, -29, 105, 44, -37, 57, -48, -15, -100, 13, 93, 5, -111, 103, -104, 67, -56, 46, -104, 113, -127, -8, 123, -90, -122, -44, 105, -71, 12, 114, 102, 1, 117, -51, 56, -120, 47, -74, 15, -89, -80, 88, -85, 109, -74, -99, 125, 16, -89, 116, -32, 17, 93, 108, 2, -34, -42, -125, -115, 114, -98, 79, -42, -85, 48, 97, -113, -96, 93, 103, 50, -69, -125, -6 ]
Per Curiam: The judgment of the court below in this case will be reversed, upon the authority of the case of the N. C. C. M. & S. Co. v. Eakins, 23 Kas. 317; and the cause will be remanded to the court below for further proceedings.	[ -80, 124, -36, -100, 10, 32, 48, -70, 76, 113, 117, -45, -69, -126, 20, 119, -13, 77, -16, 123, -12, -77, 82, -63, -58, -45, -13, -41, 49, -20, -25, 111, 76, 112, -54, -123, 86, -128, 73, 84, -114, 13, 72, -19, 89, 105, 48, 42, 82, 87, 33, -98, -29, 42, 27, -61, 40, 40, -7, -71, 65, -71, -114, 68, 125, 23, 1, 38, -99, -89, -36, 47, -104, 57, 3, -24, 50, -76, 7, -12, -53, -5, 0, 82, 102, 2, 65, -27, -104, -40, 37, -2, -115, -89, -69, 24, -87, 35, -106, 93, 101, 7, 15, 126, -2, -99, 95, -28, 1, -113, -76, -77, -33, 121, -40, 118, -22, -77, 50, 84, -43, 44, 94, -126, 19, -77, -98, -110 ]
The opinion of the court was delivered by Brewer, J.: But a single question is presented for examination in this case, and the facts upon which it arises are few in number and undisputed. In March, 1879, defendant commenced an action of ejectment, in the circuit court of the United States, against the plaintiff, to recover possession of ■of one half-section of land in Dickinson county. Judgment was entered by default at the June term, 1879, and the plaintiff dispossessed of the land by process under such judgment. Thereafter he’commenced this independent action in the district court of Dickinson county, to recover the value of permanent improvements placed by him upon the land. These improvements consisted of the breaking of about one hundred acres. On the trial, defendant claimed the right to set off against the value of such improvements the value of the rents and profits of the land from the time of the breaking in 1876 up to the time of the dispossession in 1879. The district court sustained this claim of the defendant, and the jury having found the value of the rents and profits during that time ■to be in excess of the improvements, judgment was entered for the defendant. Now plaintiff insists that under § 604 of the code, the only deduction from’the value of the improvements which can be allowed to the owner is “the net annual value of the rents and profits which the occupying claimant may have received from the same after having received notice of the plaintiff’s title by service of a summons,” and that therefore the only deduction to which the defendant was entitled, was such rental value received by plaintiff between March, 1879, and June, 1879. It will be observed that the provisions of article 25 of the code concerning occupying claimants do not in terms apply to the case at bar, for that article only provides that the party in possession shall not be evicted or thrown out of possession until paid the value of lasting and valuable improvements, and also after the entry of judgment in the action to recover possession for the drawing of a jury and inquiry by it as to such value. It gives to the party in possession no independent right of action against the owner, authorizes no suit to recover the value of such improvements, and simply provides how, in an action of ejectment, the party defendant may maintain his possession until paid for his improvements. But it is insisted by counsel that the spirit of the article guarantees to the occupying claimant payment for improvements; that the mere machinery for enforcing that right is subordinate and immaterial; and that if for any reason the party neglects to avail himself of that statute in the action of ejectment, he is notthereby debarred from any other assertion of his right. Now upon this, we remark that it may be conceded that breaking is such a lasting and valuable improvement as would entitle a party to the benefit of the occupying-claimants act; though upon this, see the following cases from the supreme court of Iowa. It may also be conceded that, notwithstanding the failure to apply in the ejectment action for the benefit of the occupying-claimant act, the defendant is not debarred from all relief; though there are several authorities which hold that where a statute like ours prescribes a specific remedy for the benefit of occupying claimants, the party in possession must pursue his remedy under that statute,, or lose all claim to payment for his improvements. (Webster v. Stewart, 6 Iowa, 401; Clawsen v. Reyburn, 14 Iowa, 136; Lunquest v. Ten Eyck, 40 Iowa, 213; Malone v. Stretch, 69 Mo. 25.) It may be conceded still further, that an occupying claimant, failing to avail himself of the statutory remedy, may maintain an independent action, after having been dispossessed from the land, to recover from the owner the value of the improvements; and in such action may recover a personal judgment for the excess of the value of the improvements over the rental value. We say all these things may be conceded for the purposes of this caes, though we by no means-wish to be understood as deciding that the propositions involved in them are in fact correct. In the case of Putnam v. Ritchie, 6 Paige, 390, in which the complainant sought to obtain compensation for his improvements, Chancellor Walworth uses this language: “By the rules of the civil law, the possessor of the property of another, who had erected buildings or made other improvements thereon in good faith supposing himself to be the owner, was entitled to payment for such improvements after-deducting from the value thereof a fair compensation for the rents or use of the property during the time he occupied it; [citing several authorities.] This principle of natural equity has been adopted by the law of England and of this state to a limited extent, in the action for mesne profits, where the bona fide possessor of property is permitted to offset or recoup in damages, the improvements he has made upon the land to the extent of the value of the rents and profits during his occupancy.” And farther on in the same case: “I have not been able to find any case either in this country or in England wherein the court of chancery has assumed to give relief to a complainant who has made improvements upon land, the legal title to which was in the defendant,- where there has been neither fraud nor acquiescence on the part of the latter after he had knowledge of his legal rights.” And in Parsons v. Moses, 16 Iowa, 136, Judge Dillon makes the following observation: “ Courts of law next modified the strict rule of the common law (which makes the occupant of land which is owned by another, no matter how good the faith of the occupant may be, liable for the rents and profits) to this extent, viz., that where such owner brought his action for mesne profits, which courts of law treated as an ■equitable action, the dona fide occupant might set off or recoup the value of his permanent improvements to the extent of rents and profits demanded, but no farther.” But notwithstanding these concessions, we think the ruling ■of the district court is correct, or at least contains no error prejudicial to the rights of the plaintiff. If the occupying ■claimant wishes to avail himself of any extraordinary rights specially given by statute, he must pursue the remedy prescribed by statute. Failing to pursue that statutory remedy, he must fall back on the general doctrines of the law for the ■measure of his rights, and by them it is clear that the occupying claimant entitled to compensation for improvements is ■chargeable with the net rental Value during the time of his occupation. It will be borne in mind that this whole doctrine of compensation for improvements is an outgrowth of ■equity. By the strict rules of the common law, whoever put-improvements upon real estate did so at his peril; and no matter though he acted in good faith and in the honest conviction that the land was his own, whenever any other party judicially established his.title to the land, such party had a right to all the improvements situated upon it. It was only through considerations of equity and in the first instance alone through courts of equity, that any innovation was made upon this arbitrary rule, and the whole doctrine of compensation, except as fixed and prescribed by statute, rests upon equitable principles. Now if it is equitable that the party in possession should receive pay for the improvements, it is equally equitable that the owner who has been in consequence of the wrongful possession deprived of the use of the land, should receive compensation therefor. The party in possession has had the benefit of the possession that rightfully belonged to the owner. If he has taken that from the owner which was his he ought to pay him for it. It would be harsh indeed, where a party has been deprived of the possession of his land by one who had no right to possession, that he should be compelled to pay for improvements which perhaps may be of a kind and character which he does not want and at the same time receive no pay for the use of the land of which he has been thus unjustly deprived. And on the other hand it would be unnecessarily and improperly rewarding a party, who it may be for years has been occupying property not his own, to give him the benefit of such possession without any compensation to the owner, and also give him pay for everything he has done to meliorate the estate. Such large compensation would seem to justify the language of Chancellor Kent in criticism of occupying-claimant statutes, where he says (2 Kent’s Com., marginal page 338): “But in the ordinary state of things, and in a cultivated country, such indulgences are unnecessary and pernicious, and invite to careless intrusions upon the property of others.” And again: “There is no moral obligation which should compel a man to pay for improvements upon his own land which he never authorized, and which originated in a tort.” It was well said by Judge Dillon, in the case from 16 Iowa, supra: “Equitably and rightfully, the rents and profits each year go to pay for the improvements, either wholly or pro tanto as the case may be.” That is á case very much in point, one in which the party in possession sought to obtain payment for improvements made by himself and his predecessors in possession during a series of years, and at the same time sought to evade any liability for rents and profits for the time covered by the statute of limitations. See also Whitney’s Heirs v. Taylor’s Heirs, 8 Dana, 405; Jones v. Jones, 4 Gill, 87; Dungan v. Von Puhl, 8 Iowa, 263. We conclude, then, that equitably and justly the party in possession who claims pay for improvements made upon the-land should also be liable for the net rental value of the land which he has wrongfully had possession of and used. This-was the ruling of the district court. It is right, and the' judgment will therefore be affirmed. All the Justices concurring.	[ -16, -6, -39, -36, -54, 96, 34, -104, 64, -95, -90, 87, -87, -45, 0, 105, -29, 73, 85, 104, 86, -93, 87, -29, -106, -77, -47, 93, -80, 77, -28, 86, 12, 32, 66, 85, 102, -64, 69, -36, -50, -123, 41, 76, -47, 64, 52, 123, 66, 11, 17, -81, -13, 46, 25, -61, 73, 44, -53, 41, 16, -8, -82, -115, 111, 6, -95, 6, -100, -57, 72, 42, -112, 57, 9, -24, 115, -92, -122, -12, 103, -69, 44, 102, 103, 48, 61, -49, -24, -71, 14, -98, -115, -89, -44, 88, 91, 72, -68, -99, 116, 4, -121, -10, -20, -107, 89, 108, 5, -53, -44, -77, 15, 56, -110, 67, -17, -89, 32, 113, -49, -94, 92, 71, 122, -101, -113, -40 ]
The opinion of the court was delivered by Brewer, J.: This was a petition for an injunction, brought by plaintiff against defendants, who are respectively treasurer and sheriff of Johnson county. It alleges substantially, that the plaintiff is the owner of property, real and personal, subject to taxation in said county; that the total amount of taxes levied upon his property for the year 1880 was the sum of $105.87, of which amount the sum of $19 was for a railroad bond tax; that the plaintiff tendered to the county treasurer at his office the full amount of all these taxes, except the sum of $19, the bond tax aforesaid; that the treasurer refused to receive such partial payment, or to give plaintiff a receipt for said sum of $86.87, or any receipt whatever, unless the plaintiff paid the whole amount of taxes, including said railroad bond tax; that the plaintiff is now, ánd always has been, ready to pay all taxes assessed against him except said railroad bond tax; that the treasurer has issued his warrant to the sheriff for the collection of the entire tax on plaintiff’s personal property, and that the sheriff is about to levy said warrant on the property of plaintiff; and the prayer was that the sheriff and treasurer be enjoined from selling any property of plaintiff for the payment of any portion of the taxes which had been tendered, and that the county treasurer be required to' receive such portion thereof. To this petition a demurrer was interposed, which was overruled by the court, and an injunction granted as prayed for. To reverse such ruling the defendant has brought this case to this court. The question presented is, whether a tax-payer can "at his option tender to the county treasurer a part of the taxes assessed upon any specific property, and compel him to receive and receipt for such portion. There is nothing in the petition which shows that the railroad bond tax is illegal or unjust. Counsel say in .their brief that plaintiff denies the validity of this railroad bond tax, and has taken this proceeding to test its validity, and for this purpose tendered all but such bond tax. But in the absence of any showing to the contrary, and for the purpose of this case, we must assume that the bond tax is legal and just. Under those circumstances we think the ruling of the district court cannot be sustained. A county treasurer cannot be compelled to receive taxes by piecemeal, nor obliged to give any receipt unless a full payment is made. Any other rule would throw a great burden on the officer, beside casting into the county records great confusion. Section 89 of the tax law (Comp. Laws of 1879, p. 957,) reads: “ When the treasurer shall receive any tax, he shall give a receipt therefor. If upon land or town lot, the receipt shall describe the land as it is described in the tax roll, and give the valuation thereof; and if upon personal property, it shall state the value thereof, and on the reverse side it shall give the amount of each kind of tax on each one hundred dollars.” This plainly implies that the treasurer is entitled to the entire tax, before being required to give a receipt, and that the tax-payer cannot tender any sum of money he sees fit, and have the same credited on his taxes, or demand a receipt for the money thus paid. This implication is made the stronger by §91, which provides, “that any person charged with taxes, on the tax book in the hands of the county treasurer, may, at his option, pay the full amount thereof on or before the 20th day of December of each year, or one.-half on or before the 20th day of December, and the remaining one-half on or before the 20th day of June next ensuing.” Ex-pressio unius, exdusio alterius. Giving him by express statute the option to pay one-half at a time, excludes all other option on the part of the tax-payer. This is the clear intendment of the statute, and we need go no further than rest upon its language. But, as we have already intimated, public policy forbids any relaxation of this rule. We must take judicial notice that taxes are.paid by a large body of individual taxpayers, some paying large but many very small amounts; and if each individual tax-payer has the option to pay as much as he sees fit, and have the same receipted for and •credited upon the books, it takes but a little reflection to perceive that the tax books would be covered up with numberless small entries, and that much confusion would ensue, and ofttimes no little loss result.' It is no small labor now to make the entries properly on the tax books, where semiannual payments are authorized, and it would be unjust to the county treasurer to cast any burden additional upon him. If the plaintiff desires, as counsel say, to.contest the validity of any particular tax or part thereof, his proper remedy is to tender the remaining taxes, as he did in this case, and then to bring his action for an injunction, keeping good his tender, and showing wherein the taxes not tendered are illegal, and no proper charge upon his property. Then if his claim of illegality is sustained, an injunction will be ordered restraining the collection of such illegal tax, and the treasurer may then receipt for the taxes tendered and admitted to be legal. In no other way can proper protection be secured to the officer and to the public. The judgment of the district court must therefore be reversed, and the case remanded with instructions to sustain the demurrer. The case immediately succeeding this, No. 2441, is precisely analogous, and the same order will be entered in that action. The next succeeding case, No. 2442, differs only in this, that the petition alleges that the railroád bond tax is illegal and void, as the plaintiff believes; but this allegation is simply one of a conclusion of law, and contains no facts showing such illegality. It is therefore no stronger than the petitions in the two preceding cases, and the same judgment must be •entered in that. All the Justices concurring.	[ -15, -18, -8, -36, -54, 96, 43, -102, 97, -95, -92, 83, -23, 34, 0, 57, -73, 125, 53, 122, 65, -77, 87, 99, -110, -13, -55, -35, -75, 79, -28, -57, 76, 48, 42, -43, 102, -62, -59, -100, -50, -123, 41, -19, -47, -56, 48, -21, 82, 75, 49, -82, 115, 40, 28, 67, 73, 44, 91, -85, -48, -15, -66, -123, 77, 7, -111, 118, -104, -57, -56, 42, -104, 53, 0, -24, 115, -90, -58, -12, 9, -69, 8, 102, 102, 32, 53, -1, -88, -88, 14, -69, -113, -89, -41, 88, 106, 10, -74, -97, 116, 80, -121, 126, -28, 21, 93, 124, 6, -50, -42, -73, -113, 116, -118, 67, -49, 33, 48, 97, -49, 2, 92, 71, 58, -101, -49, -36 ]
The opinion of the court was delivered by Brewer, J.: This case has been to this court once before, and the opinion then filed will be found in 22 Xas. 89. The judgment theretofore rendered was at that time reversed, and the case remanded for another trial. This second trial was had before the district court, without a jury; special findings of fact and conclusions of law were made, and judgment was entered thereon against the plaintiffs in error for the sum of $4,180.53. Exceptions were duly taken, and the record is now before us for review. The controversy as it now stands is alone between the administrator- of the estate of O. P. Faulkner, deceased, on the one hand, and Denny & Redman, claiming under the bill of sale from said Faulkner, recited in the opinion filed in 22 Kas., supra, on the other. On: the first trial such bill of sale was adjudged invalid, and judgment rendered against Denny & Redman for the full value of the cattle taken by them under the writ of replevin. Such ruling was considered erroneous by this court, and the bill of sale, which had been found by the jury to have been intended as only a security, was held to be valid as such security. On the last trial the district court found, following the decision theretofore rendered by this court, that such bill of sale was valid between the parties, though intended only as security and in the nature of a chattel mortgage. Its finding in reference to the character of this instrument, and the agreement under which ■ ‘it was given, is as follows: • “ Said instrument of writing was then and there delivered by the said O. P. Faulkner to the plaintiffs; but the same was intended by the parties at the time only as security for certain advances, which were to be made by the plaintiffs to the said O. P. Faulkner, to wit: Four acceptances of $2,000 each, making in all $8,000, which were to become due at the times they agreed upon, and said cattle were to be fed by the said O. P. Faulkner until fit for market, and were then to be forwarded by him, and consigned to the plaintiffs at Chicago, for sale on commission. The net proceeds of the sale to be applied, first, to reimburse the plaintiffs for their advances; and second, the remainder thereof to be paid to the said O. P. ’Faulkner.” Subsequent findings show that the four drafts of $2,000 each were drawn, accepted and paid by Denny & Redman, in accordance with their agreement; that a certain portion of the cattle named in said bill of sale were shipped, in pursuance of said agreement, by Faulkner in his lifetime to Denny & Red-man, and by thém sold; that out of the proceeds they reimbursed themselves for two acceptances already paid by them, and the balance of the net profits they remitted to Faulkner; that subsequently, having accepted and paid the other two drafts, and Faulkner having deceased without shipping the cattle, they commenced this action of replevin, took possession of the cattle, and shipped them to Chicago, and. sold them, receiving as net proceeds the sum of $4,646.18. The court further found that the market value of the cattle in Brown county, at the time they were taken under the writ of replevin, was $6,650, and that no proceedings for the advertisement and sale of the cattle were taken by Denny & Redman, under the chattle-mortgage law of this state. Upon these findings, the court charged Denny & Redman with the market value of the cattle in Brown county at the time they were taken, to wit, $6,650, and credited them with their advances, to wit, $4,000, and rendered judgment against them for the balance and interest. On the other hand, Denny & Redman insist that having been entitled under the bill of sale to the possession of the cattle, and having shipped them to Chicago and disposed of them in exact accordance with the terms of the agreement between Faulkner and themselves, and having in this respect acted in entire good faith and with reasonable care and diligence, they are responsible for only the net proceeds of the cattle as sold by them in the Chicago market, to wit, $4,646.18. The only question which we shall consider in this case — indeed the only question, as we see, now presented by the record other than mere technical questions, and those not affecting the substantial rights of the parties — is the question above indicated, as to the true measure of Denny & Redman’s liability. Counsel for defendant in error insist that the district court followed the exact language and ruling of this court, as stated in the opinion heretofore filed. In a certain sense, this contention of counsel is correct; yet the language of that opinion was based upon a different state of facts, and used in disposing of a different question from that now presented. Indeed, the point now presented by counsel was not at all considered or passed upon by the court then. In that opinion, after referring to the fact that Denny & Redman did not proceed under the chattel-mortgage law, but shipped the property to Chicago and there disposed of.it, we used, it is true, this language: “In determining the remedies under a contract, the lex fori governs. Hence, if they had proceeded in good faith under the statute to advertise and sell the property, after taking it into their possession, their liability would not have exceeded the surplus of the proceeds of such sale above their debt, interest and costs. Having made other disposition, their liability must be the excess of the value of the cattle at the time- and place of seizure above such debt and interest.” But the fact that Denny & Redman, in thus shipping the cattle to Chicago and selling them, were proceeding simply in accordance with the express terms of the contract, was-not a fact to which our attention was at all directed, if indeed it appeared in the record. Now the fact -is expressly found by the court, and the question is distinctly presented by counsel to our attention, whether a chattel mortgagee, after-taking possession of the mortgaged property, must, in order to protect himself, proceed to advertise and sell the mortgaged property in accordance with §17 of the chattel-mortgage act,, or may proceed to make such other disposition of the property as has been agreed upon by the parties at the time of giving the security. In other words, is an agreement between mortgagor and mortgagee, for any reasonable disposition by the mortgagee of the mortgaged property in case of non-payment of the mortgage debt, other than that of public-advertisement and sale as named in the statute, a valid agreement? And if valid, and the mortgagee proceeds to act inexact accordance with its terms, and acts in good faith and with reasonable care and diligence, what liabilities does he-incur as the result of such action? We think such agreement must be held valid, and that the 0 # 7 mortgagee so acting is responsible only for the actual results of such action and proceeds of such disposition. The contract is valid; there is no statute forbidding it; it is not against public policy, and would oftentimes increase the value of the mortgaged property to the mortgagor as security, without in any manner prejudicing any substantial rights. Why should not the owner of personal property, who may sell absolutely or conditionally, and impose such conditions as the parties may agree upon, or give it away, providing it be not done in fraud of creditors — why should not such owner be permitted to mortgage his property upon such conditions as he sees fit? Freedom in commercial transactions is always to be encouraged, providing only, that such freedom does not trespass upon any statute, do any wrong to the public, or work any injustice to the parties. It would often be of great value to the mortgagor if he could insert a valid stipulation that the mortgaged property, when taken possession of by the mortgagee, should be sold in a certain market, or at a certain time, or upon certain conditions. To deprive him of such right would render his property less valuable for the purpose of security, and perhaps prevent him from obtaining such a loan as his necessities require. If the. mortgagee carries out in good faith the terms of the agreement, and , , ... makes the very disposition which he has contracted to make, he has broken no contract, he has been guilty of no bad faith to the mortgagor, and ought to be chargeable with only the actual proceeds of the property thus disposed of by him. The judgment of the district court must therefore be modified in accordance with these views; and the case will be remanded with instructions to enter a judgment against Denny & Redman for the difference between their advances and the net proceeds of the sale, to wit, $646.18, and interest at 7 percent, thereon from the 29th of June, 1872. In all other respects, and except as so modified, the judgment of the district court will be affirmed. The costs of this court will be divided between the parties. All the Justices concurring.	[ 112, 125, -16, -113, 10, 96, 40, -102, 80, -95, 38, 83, 105, 82, 20, 109, 103, 45, 81, 106, 86, -77, 7, 98, -45, -77, -111, -43, -79, 76, -28, 87, 77, 32, 74, 85, -26, -30, -63, 22, 78, 5, 9, -19, -7, -64, 48, 43, 22, 73, 37, -114, -17, 44, 29, 70, 105, 40, 123, 41, 80, -8, -69, -113, 95, 6, -111, 6, -104, 69, -8, 14, -112, 49, 1, -24, 114, -90, -122, -12, 109, -103, 41, 38, 111, 35, 125, -17, -112, -120, 47, -33, -123, -89, -112, 24, -125, 105, -66, -99, -72, 64, 7, 124, -25, -99, -99, 108, 5, -114, -42, -79, -113, 60, 24, 11, -6, -105, 48, 113, -51, -16, 93, 71, 114, -101, -114, -16 ]
The opinion of the court was delivered by Horton, C. J.: This was an action, brought by the plaintiff in error against the defendant in error, to quiet title to certain real estate situate in Jackson county. The petition was filed on the 28th day of May, 1880. On the same day, a summons was issued for defendant, directed to the sheriff of Doniphan county, returnable in thirty days. This summons was lost, and no service was had thereunder. On the 20th day of October, 1880, an alias summons was issued by the clerk, under the seal of the court, and directed to the defendant, notifying him that he had been sued by plaintiff, and requiring him to answer the petition filed by plaintiff in the clerk’s office of the court, within sixty days from the date of the service thereof, or that the said petition would be taken as true, and judgment rendered accordingly. On the 4th day of March, 1881, this summons was returned, with the indorsement verified by the party making such service, that it was served personally on the defendant, at St. Joseph, Buchanan county, Missouri, on February 18, 1881, by Joseph A. Brown, deputy sheriff of said Buchanan county. At the April term of the court for 1881, the defendant not having appeared by demurrer, answer or’ otherwise, plaintiff took judgment forever barring the defendant from setting up any title, estate, interest or lien to the land described in the petition. At the same term of court, and on the 20th day of April, 1881, the defendant filed a motion to set aside and vacate the judgment of the court for various reasons. This motion was supported by the affidavit of the defendant, alleging, among other things, that the only claim of title to the real estate in controversy, claimed by plaintiffj was a pretended tax deed for taxes on the premises for the year 1875, which defendant had fully paid on the 12th day of November, 1875, whereby the said tax deed was of no validity, as the taxes for which the land was sold had been paid prior to the sale. Upon the hearing of the motion, on the 6th day of July, 1881, being at the said April term, the court sustained the motion of defendant, and ordered that the judgment rendered on the 20th of April, 1881, be set aside and held for naught, and adjudged that defendant pay the costs of the action up to date, taxed at $16.50. The case was directed to stand for hearing at the following term of court. The plaintiff ex cepted to the vacation of the judgment, and brings the case here. As the order of the district court simply opened up the judgment and the default, and allowed the defendant to answer so that the merits of the case might be heard and considered, and the case disposed of upon its merits, such order is not reviewable by this court. ( McCulloch v. Dodge, 8 Kas. 476.) Again, as the application to set.aside the default and judgment was made at the same term at which the judgment was rendered, and as the court vacated the judgment at the same term, such action rested to a very great extent in the sound discretion of the court below, and as it cléarly appears that defendant asserted a meritorious and valid defense, we would not be disposed to reverse the ruling of the district court, even if the order were reviewable hero and the grounds alleged for such vacation technically incorrect. However, as an important question concerning the service of a summons out of the state is discussed in the briefs, we pass to the consideration of that. It is alleged, among other grounds for the vacation of the judgment, that the defendant had not been duly served with the process of the court, and that the court had no jurisdiction to try and determine the cause at the rendition of the judgment. Sec. 76 of the code prescribes that “In all cases where service may be made by publication, personal service of summons may be made out of the state by the sheriff of the county in which such service may be made.” In making the service of the summons out of the state, a sheriff derives his authority from this statute, not from the state laws where he resides; and under this statute, it seems to us that the service of the summons must be made by the sheriff in person; and that the service cannot be made by a deputy or any other person acting as a substitute for him. The statute authorizes the summons to be served out of the state by a sheriff, and names no other person. (Morris v. Patchin, 24 N. Y. 394; Railway Co. v. Cutter, 19 Kas. 83.) In this case, the sheriff of Buchanan county did not make service of the summons; therefore the statute was not complied with, and the defendant was not served at the time of judgment with the process of the court as prescribed by law. The deputy sheriff of Buchanan county had no more authority to make service than any other person acting as a substitute for the sheriff. The order of the district court must be affirmed! All the Justices concurring.	[ -80, 110, -7, 12, -86, -64, 66, -70, -37, -79, -76, 115, 105, -126, 16, 61, -22, 61, 81, 105, 70, -73, 23, -93, 18, -13, -41, 68, -75, 76, -26, -41, 72, 40, 74, -99, 70, -30, -113, 80, -114, -92, -87, -20, 81, 104, 52, -72, 18, 11, 21, -82, -13, 47, 25, -61, -55, 45, -37, 57, -111, -16, -102, 21, 127, 6, 17, 38, -104, 3, 72, 26, -104, 53, 0, -8, 119, -90, -121, -44, 79, -103, 40, 38, 102, 33, -3, -49, -80, -104, 15, -2, -107, 39, -29, 9, 74, 104, -66, -103, 125, 80, 79, -2, -32, 0, 16, 108, 15, -118, -112, -77, 15, 60, -102, 11, -25, -89, -80, 113, -49, 2, 93, 71, 62, -69, -113, -8 ]
The opinion of the court was delivered by Horton, C. J.: This was an action' brought by the plaintiff in error against the defendant in error, for damages for an alleged assault and battery. Five thousand dollars were claimed as damages, and plaintiff obtained an order of attachment against the property of the defendant. This was levied on real estate — the property of the defendant — appraised at the value of $4,200. The defendant moved the court to discharge the attachment as to a part of the property attached, upon various grounds, but mainly because the levy under the attachment was excessive. The language of the motion upon this point is as follows: “ The levy upon the property of de fendant, to the extent made, is gross oppression and wrong, and has been made — and the amount of property attached, to wit, of the value of $8,000, belonging to defendant — out of malice and spite by plaintiff toward the defendant; that the plaintiff cannot hope or expect to recover from the defendant in said action more than the. sum of $100, though he sues for the sum of $5,000, and that plaintiff claims the said sum of $5,000, and lays his damage in said sum in his petition, and in his affidavit, as a matter of form only.” Upon the hearing of the motion, the defendant admitted that he had assaulted plaintiff, but did not offer any evidence as to the value of the property attached, excepting lot 9, in block 129, in the city of Winfield, which he alleged was reasonably and abundantly worth the sum of $2,000, and more than sufficient to satisfy any judgment and costs that the plaintiff might recover. The court permitted affidavits pro and con, for the purpose of determining the severity of the injuries inflicted upon the plaintiff by defendant, and the probable amount of damages that plaintiff might recover upon the trial, and thereon ordered that property appraised at the aggregate value of $2,900 be released,- and discharged from attachment. We do not think the action of the court can be sustained. While an excessive levy is sufficient ground, when properly proved, to discharge a part of the property attached, the court is not justified in hearing upon affidavit any question concerning the probable amount of damages that a plaintiff is entitled to recover under his petition. (Lord v. Gaddis, 6 Iowa, 57.) Such an inquiry leads directly into the nature, validity and justness of the plaintiff’s claim, and does not concern the truthfulness of any of the grounds upon which the attachment is sued out. Where the grounds of attachment are not denied, and it is sought to release property from an excessive levy, the only question for the court to determine is, whether too much property has been taken under the attachment to satisfy the claim or damages alleged. The court is not to investigate what amount of recovery the plaintiff is likely to obtain upon a trial, but only whether the property taken is more than sufficient to satisfy the claim of plaintiff. If property is taken upon attachment.in excess of the amount of damages claimed, the court, after an investigation as to the value, of such property, may discharge the attachment as to so much of the property attached as is in excess in value of the damages alleged. But to go further, and to discharge the property upon an inquiry as to the probable result of the action upon a trial of the merits of the case, might in some cases work gross injustice to a plaintiff. For instance: In this case the damages alleged are $5,000. The property attached, as appraised, was valued at $4,200. The order of the court discharged property of the value of $2,900, leaving attached property of the value of $1,300 only. Defendant admitted that he assaulted the plaintiff, and that he dealt him four or five blows with his fist. The affidavit of the plaintiff shows that he is a minister of the gospel; that he was peaceably walking along a public street in the city of Winfield, on his way home from the post office, when he was unlawfully attacked by the defendant; that he was knocked down, falling partly into the gutter, and getting his clothes on one side covered with mud and filth; that his face, neck and head were badly bruised and injured; and that he was wholly prevented, by reason of the injuries so received, from following his usual and ordinary avocation for a period of two weeks; .that, although the assault occurred on the 24th day of October, 1881, on the 2.d day of December following he was partially disabled by reason of the said injuries, and that he had not at that time fully recovered from the effects thereof. Under the rule established in this state, the plaintiff may recover not only for the actual damages received from defendant, but in addition plaintiff may also recover exemplary damages for the lawless acts inflicted by defendant by way of penalty or punishment. (Malone v. Murphy, 2 Kas. 250; Wiley v. Keokuk, 6 Kas. 94.) Therefore, as the jury upon a trial will be at liberty to disregard the rule of mere compensation in fixing the amount of damages, it may be that plain tiff will recover a sum in excess of the value of the property not discharged by the order of the court. If such should be the case, then sufficient property will not be retained, if the order of the court is permitted to stand, to satisfy the judgment. In Hinckle v. Money, 2 Wils. 205, the jury gave a verdict for £300 in an action for assault and imprisonment; and a motion for a new trial was denied, although it was supposed £20 would be sufficient damages for the mere injury. The same court in a case of assault and battery, said that the jury were the proper judges of the damages, and that when a blow had been given by the defendant, which might have called forth a challenge and death might have ensued, the jury had done right in giving exemplary damages. ( Grey v. Grant, 2 Wils. 252.) In Fabrigas v. Mostyn, 2 W. Black. 929, a verdict for £3,000 damages was not disturbed, and the court said it was very difficult to interpose with respect to the quantum of damages in actions for any personal wrong; that the jury (not the-court) are to assume the adequate satisfaction. Many other authorities to the same effect could be cited, but it is unnecessary. In addition to the right of the defendant to have an excessive levy set aside, under an attachment where property is taken in excess of the claim or damages alleged, he can obtain the discharge of all the property attached, by the execution of an undertaking to the plaintiff, with sufficient sureties in double the amount of the plaintiff’s claim, conditioned that the defendant shall perform the judgment of the court. (Code, §231.) Therefore, under the principle adopted in this decision, and the provisions of the code, it seems to us that the defendant has ample remedy, without authorizing the court to release, at its discretion, property attached of less value than the amount of the claim stated in the affidavit, on the pretense of an excessive levy, or excessive attachment. The order of the district court discharging the property from attachment must be reversed, and the attachment and levy thereunder be continued in full force until the final disposition of the action, or until the defendant has obtained a discharge thereof by the execution of a sufficient undertaking. All the Justices concurring.	[ -16, 127, -72, 44, 11, -32, 42, -104, -39, -128, -74, 83, 109, -54, 0, 103, -10, 121, 101, 105, 67, -77, 38, 67, -98, -77, 115, 85, -79, -52, -28, -44, 77, 52, -62, -43, 102, -118, -11, 84, -118, -127, -87, -60, -53, 104, 48, 59, 64, 11, 49, -98, -5, 46, 24, -53, 73, 44, 79, 49, -44, -23, -51, 13, 91, 19, -79, 6, -100, 67, 90, 40, -104, 57, 0, -24, 115, -74, -122, 84, 105, -101, 12, 100, 99, 17, 9, -2, 120, -120, 47, -10, 29, -90, 19, 88, 75, 9, -74, -103, 112, 80, -123, 124, -13, 12, 93, 108, 3, -49, -108, -77, 47, 48, -102, 67, -49, 39, 16, 65, -52, -96, 92, 81, 91, -101, -98, -113 ]
The opinion of the court was delivered by Horton, C. J.: The same questions are presented in this case as in the former onq, excepting, that after the. district court opened up the judgment and default, the case was set for trial at the November term, 1881. At that term the plaintiff did not appear, and judgment was rendered in favor of the defendant. After the rendition of the judgment plaintiff then moved to set it aside, on the ground that the judgment rendered April 20, 1881, was a valid and lawful judgment, and that the order opening up the judgment and default was irregular and void. The decision in the former case of the same parties, just decided, is decisivo of this case- and therefore the judgment of the district court will be affirmed, upon that authority. All the Justices concurring.	[ -80, 124, -40, -116, 74, 96, 42, -104, -51, -96, -95, -45, -87, 19, 20, 125, 87, 79, 85, 106, -58, -73, 22, -95, -46, -13, -37, -107, -79, 108, -26, -33, 12, 32, -54, 85, 102, -54, 65, 20, -122, -123, -87, -19, -47, 8, 60, 123, 118, 79, 97, 58, -13, 46, 25, -58, 104, 44, 91, 63, -48, -15, -120, 5, 109, 20, -109, 6, -100, 5, -8, 46, -112, 17, 1, -8, 123, -90, 6, 124, 99, -70, 8, 118, 98, 1, 108, -49, 60, -120, 39, -2, -97, -26, -78, 25, -86, 65, -74, -103, 125, 0, -90, -4, -30, -123, 24, 100, 4, -117, -112, -77, -113, 124, -70, -118, -49, -101, -79, 81, -20, -96, 92, 66, 50, -69, -98, -8 ]
The opinion of the court was delivered by Valentine, J.: This was an action brought by E. S. Be-dilion against the board of county commissioners of Cowley county, for fees due- to him as clerk of the district court in a criminal action in which the state of Kansas was plaintiff and Major F. Moss was defendant. The case was tried in the district court by the court, without a jury, and the court decided that the county of Cowley was not liable for the costs, and therefore rendered judgment in favor of the defendant and against the plaintiff; and the plaintiff, as plaintiff in error, brings the case to this court for review. Counsel for plaintiff states that “ the sole question at issue in this case is, whether under the statutes of this state the ■ county is liable to the clerk and sheriff for fees for services rendered by them in criminal actions wherein the county at torney enters a nolle prosequi, and thus causes the action to be dismissed without any order or judgment of the court concerning costs in the case being made or rendered therein.” Counsel for defendant states the question as follows: “The question in this case-is the construction of § 1, ch. 108, Laws of 1881. Does this section provide for the payment by the county of clerk’s fees in criminal cases when neither the prosecuting witness nor defendant is adjudged to pay the costs?” Section 1, ch. 108, of the Laws of 1881, is §.19, ch. 39, of the Laws of 1868, (Comp. Laws of 1879, p. 446,) as amended in 1881. Said §19, as amended in 1881, reads as follows: “Sec. 19. In all cases where the fées prescribed, by this act in criminal cases for the sheriff, clerk, constable, justices of the peace, witnesses for the state, and jurors, are not paid by the defendant or the prosecuting witness, they shall be paid by the county in which the criminal prosecution is instituted: Provided, That no such fees shall be paid by the board of county commissioners until the sheriff shall have filed his ■affidavit that said fees cannot be collected from any other source.” It appeal’s from the briefs of counsel, that the defendant claims and that the court below held, that the county is liable for the fees of the clerk of the district court in criminal cases only, where a judgment for costs has been rendered against the defendant in the criminal action, or the prosecuting witness, and where such fees cannot be collected from the defendant or the prosecuting witness; and that the county is never liable for such fees, where no judgment has been rendered against either the defendant or the prosecuting witness. On the other hand, the plaintiff claims that the county is liable for such fees in all cases where they “cannot be collected from any other source,” and that it makes no difference whether a judgment has been rendered against the defendant or the prosecuting witness in the-criminal, action, or not. We think the interpretation given to the section by the plaintiff is the correct one. We think that the legislature intended that the clerk should in all criminal prosecutions receive his fees for the services performed by him; but that he should not receive such fees from the county until every other means of collecting them had been exhausted. In the present case, where a nolle prosequi was entered and no judgment rendered against either the defendant or the prosecuting witness, we think the clerk of the district court was entitled to his fees as soon as the proper fee-bill and -affidavit were made and presented to the board of county commissioners. It is admitted in this case that everything of a merely formal character necessary to be done in order to make the county liable, has been done, and that the only question now presented is, whether the county may, in any criminal case, under any circumstances, be liable for clerk’s fees, where no judgment has been rendered for either fees or costs, against either the defendant or the prosecuting witness, or against any other person. This question, as before stated, must be decided in the affirmative; and therefore the judgment of the court below will be reversed, and the cause remanded for further proceedings. All the Justices concurring.	[ -80, -18, -32, -35, 72, 96, 34, -120, 10, -95, -78, 87, -23, 64, 1, 125, -94, 61, 21, 105, 70, -73, 7, 99, -78, 115, -45, -59, -67, -53, -26, -42, 77, -80, 74, -107, 71, 66, -127, 80, -114, 12, -87, -47, 81, 0, 52, 121, 50, 75, 49, 110, -69, 42, 52, 99, 40, 44, 91, -85, 16, -79, -114, -123, 95, 20, 51, 38, -98, -121, 88, 62, -104, 61, 66, -4, 123, -90, -122, -44, 77, -87, -87, 110, 102, 97, 52, -49, -72, -115, 62, -5, -99, -89, -102, 89, 106, 12, -106, -99, 117, 80, -121, -12, -31, 20, 29, 108, 3, -49, -80, -101, -49, 52, -110, 19, -21, 3, 48, 97, -57, -14, 92, 71, 58, -101, -97, -36 ]
The opinion of the court was delivered by Horton, C. J.: After the decision of this court in this case, reported in 24 Kas. 497, a second amended petition was filed, in which it was alleged among other matters, that the note and judgment are, and always have been, the property of A. H. Hentig; and that said A. H. Hentig is now, and always has been since the rendition of said judgment, a nonresident of the state of Kansas, and out of and' beyond the limits of the state of Kansas, and a resident of the state of Michigan, and has never been in the state since the rendition of said judgment. After an answer to such amended petition had been filed, and a reply to such answer had been made, the case was disposed of by the trial court without the intervention of a jury. Judgment was rendered in favor of the plaintiff, decreeing a perpetual injunction to stay the further collection of the judgment. Plaintiffs in error (defendants below) excepted, and bring the ease here. When the case was before us at the former hearing, the defendants pleaded the statute of limitations as the single barrier to plaintiff’s right to relief. The petition then before us alleged that the plaintiff was an accommodation indorser upon a note executed to A. H. Hentig, but which in fact belonged to his brother, a resident of Kansas. We then held,-that as' the action was one for relief on the ground of fraud, and that as plaintiff did not commence it within two years from the discovery of the fraud, the statute of limitations was a valid defense. We further held, that the facts averred in the petition to excuse the plaintiff’s delay were not sufHcieht to give him a right to relief after the statute of limitations had run. The allegation in the petition, and also in the reply, that the defendant A. H. Hentig is and has been out of the state since the rendition of the judgment on the 26th day of May, 1875, which upon trial was supported by the evidence, removes the bar of the statute of limitations from the case so successfully pleaded on the former hearing. (Code, § 21; Bonifant v. Doniphan, 3 Kas. 26.) The principal question for our consideration now is, whether the district court had the power in the exercise of its equitable jurisdiction, upon the pleadings and evidence before it, to interfere by injunction to restrain A. H. Hentig from ayailing himself of the whole judgment, notwithstanding the payments made to him on the note, and the promise of his attorney and agent, made pending suit, to credit the amounts paid upon the claim, and take judgment for only the balance. The counsel for plaintiffs in error contends that there is no equity in the petition, and refers to the well-settled principle that before a court of equity will enjoin a judgment at law, the party seeking the aid of the court must show some good reason for not having made his defense at law, and in this case he asserts no adequate excuse is averred in the petition for the failure to make the defense of part payments on the note. In brief, counsel urges that Sweet has been guilty of laches', has neglected to make his legal defense in an action at law, and therefore cannot now be heard in a court of equity to disturb or enjoin the judgment rendered in an action at law. Ordinarily, the proposition contended for is sound, and well supported by the authorities; but here, equitable jurisdiction is asserted to prevail against a fraud committed, according to the allegations of the petition, in obtaining judgment for the whole amount stated upon the face of the note, when in fact several hundred dollars had been paid thereon upon the assurances pending the litigation that such sums would be credited before the rendition of the judgment; therefore a question is presentecLfor our consideration different from the one claimed to be in issue on the part of the plaintiffs in error. Of course, if no fraud had been committed in obtaining the judgment for the amount rendered therein, the enforcement of such judgment could not legally be stayed, because all judgments properly rendered by a court having jurisdiction of the cause and of the parties are conclusive between those parties, but among the grounds of equitable jurisdiction is the relief against frauds in verdicts, judgments, decrees, and other judicial proceedings. (1 Story’s Eq. Jur., § 252.) Again, equity will relieve by injunction where a judgment has been obtained by undue advantage. (Davis v. Tilleston, 6 How. 114; Moore v. Gamble, 1 Stockton Ch. Rep. 246.) Again, where the defendant is prevented from taking proper measures to defend the action, by the fraudulent assurances of the plaintiff that the suit shall be carried no further, or that no defense is necessary, equity will interfere to prevent the guilty party from profiting' by his own fraud. (2 Story’s Eq. Jur., [7th ed.,] §§173, 887; High on Inj., [2d ed.,] §§190-201; Dunnahoo v. Holland, 51 Ga. 147; Bresehan v. Price, 57 Mo. 422; Carrington v. Holabird, 17 Conn. 530; Pearce v. Olney, 20 Conn. 544.) Now, under the facts disclosed in this case, assuming the general findings of the court to be conclusive — and we are bound by such findings, as the judge of the district court was the trier of the facts, and had the witnesses before him — it was shown to be against conscience to allow the judgment to be collected to the full amount of the face. Several hundred dollars had been paid after the commencement of the action on the note, and A. H. Hentig had promised, pending the suit, to credit the payments upon the claim, and to take judgment for only the balance. We say A. H. Hentig had done these things, because in law he is bound by the acts and conduct of his attorney and agent when he attempts to enforce a judgment thus obtained. The injured party has shown that the reason he did not go into court and set up such payments was, that he was prevented from so doing by the fraudulent assurances of the attorney and agent of the plaintiff who obtained the judgment; and, taking all the facts together, we cannot say that he was negligent in relying upon the promises and assurances so given to him pending the litigation. It appears that the judgment was partially unfounded, and that an undue advantage was obtained in taking judgment for more than the balance due on the note, and therefore it is unconscientious for the plaintiff in that judgment to pursue .it to the recovery of the moneys paid to him before the judgment, and promised, pending the suit, to be duly credited. This unfair advantage was gained over defendant in error pending litigation by the fraudulent assurances and promises of the agent of A. H. Hentig, for which the latter is responsible, and thereby'a substantial right to have the claim credited with the payments made was lost to defendant in error, and this right of credit was just and equitable in itself; and therefore as defendant in error was not guilty of negligence in relying upon the assurances made in behalf of the party seeking the judgment, the trial court had full authority to restrain the collection of the judgment upon payment of all save a sum equal to the amounts paid before judgment, and improperly incorporated in it. On the trial, T. B. Sweet was asked if a pleading filed in another case pending in the district court against him was his answer. He replied that it was prepared by his attorneys, and signed by them. An attempt was made to introduce this answer as evidence, and the district court refused to admit it. It is claimed that it should have been received, in order to contradict certain statements made by Sweet upon the trial; and also upon the principle of estoppel, as in such answer it was alleged that the judgment attempted to be enjoined was correctly rendered. ' Neither of the positions seems to us to be tenable, and no material error was committed by the court in refusing to receive the answer as evidence. Nothing in the way of the doctrine of estoppel as to Sweet appears by the answer or in the proceedings in the suit of A. C. Huidekoper v. The Topeka Rolling Mill Co. Sweet is entitled to the full amount recovered in that case, because, from the evidence, he has paid that amount. This suit was instituted to prevent a double collection of a portion of the note, not to reduce the amount originally due on the note. As Sweet did not sign or make oath to the answer, he cannot be impeached by any statement ignorantly or erroneously incorporated in it by his attorneys. For many purposes he may be bound in law by the answer and the legal results flowing therefrom • but, as presented in the trial court, it was not competent as impeaching testimony. Upon the questions of fact in issue between the parties, we have already stated that we are bound by the findings of the trial court. While there is a great conflict in the evidence, there seems to have been some evidence to sustain these findings, and we cannot, within the decisions of this court so often announced, overthrow them or avert their legal effect. The judgment of the district court will be affirmed. All the Justices concurring.	[ -16, 106, -7, 61, 26, -32, 32, -102, 97, -95, -92, 115, -23, -37, -123, 125, 114, 45, 81, 107, -42, -73, 6, -55, -46, -77, -37, 93, -8, -50, -26, 86, 12, 48, 10, -43, 102, -54, -127, 20, -114, 4, 9, -28, -47, 8, 52, -5, 86, 75, 113, 47, -13, 46, 25, 67, 105, 44, 74, -67, -48, -15, -118, -123, 127, 18, -77, 6, -98, 71, 120, 46, -104, 59, 9, -8, 115, -74, -122, 84, 107, -71, 32, 102, 98, 33, 53, -25, -8, -104, 47, 119, -97, -89, -111, 88, 3, 73, -66, -103, 117, 16, 7, 126, -25, 13, 24, 108, 11, -113, -16, -107, -49, 116, -118, 15, -25, -93, 33, 97, -60, 64, 92, 119, 59, 27, -98, -68 ]
The opinion of the court was delivered by Horton, C. J.: This was an appeal to the district court of Atchison county, from the determination of commissioners appointed to appraise the value and assess the damages sustained by the plaintiff by reason of the taking of a portion of one of her lots in the city of Atchison for a right of way. The facts of the case upon which the questions of law arise, are these: Plaintiff is the owner of the north 25 feet of lot No. 13 and lot No. 14, in block No. 21, in the •city of Atchison, lot No. 14 being north of and contiguous to lot No. 13. Upon lot No. 14' the plaintiff has a three-story hotel, which she and her husband keep, and at which they reside. The north 25 feet of lot No. 13 is used, in connection with lot No. 14, the two lots being occupied and enjoyed as one tract. In August, 1879, the defendant company, through commissioners appointed for that purpose, proceeded ■to condemn the southeast corner of the 25-feet strip in lot 13, and acquired by such proceeding a triangular piece of ground 35 feet long on the south and 23 feet long on the east. But in constructing its track it is alleged that the company appropriated a strip of ground 2 feet wide, running the length of the long side of the triangle, more than it had condemned. In the condemnation proceedings lot 14 was not mentioned, and the commissioners appraised the triangular piece of ground appropriated from the southeast corner of the said 25-feet strip in lot 13 at the sum of $279, and assessed the damages of the owner’s interest at that sum. In the undertaking for appeal, the proceedings relating to the condemnation of the southeast corner of the north 2.5 feet of lot No. 13 are referred to, and the damages assessed are stated; and then it is alleged that as the appellant deems such valuation and assessment of damages totally inadequate and insufficient, she intends to appeal therefrom to the district court. After the appeal was perfected, and at the January term of 1881, plaintiff, without leave but upon notice to defendant, filed a petition, alleging therein the joint use of the said 25-feet strip in lot 13 and said lot 14 as one tract of property, and alleging damages to the whole of said property, which petition on motion of defendant was stricken from the files. The case was then continued to the March term, 1881. On the 18th day of January, 1881, plaintiff filed a motion for leave to refile said petition, which motion was heard on the 31st of January, and denied by the court, on the ground that the petition presented matters not embraced in the appeal undertaking. The case'was tried at the March term,. 1881, and on the trial plaintiff offered evidence tending to prove that the 25-feet strip of lot 13 and lot 14, with the hotel, had long been used as one property; that the 25-feefc strip was bought and used for a woodyard, for drying' clothes laundried in the hotel, and various, other purposes; that after the construction of the track over lot 13 and the use thereof by the railroad company for its engines and cars, lot 13 was no longer suitable to be used for laundry purposes; and also that the defendant in the construction of its track built it two feet beyond the line of the condemned property, and upon the land of the plaintiff, thereby using about 84 square feet more than it had condemned. Plaintiff then attempted to prove damages to the hotel and lot .14 by such appropriation, and also to the 25-feet strip, by the use of the 2-feet strip in addition to what had been condemned. All of this evidence was excluded by the court, and the plaintiff excepted. In §86, ch. 23, Comp. Laws of 1879, it is provided that— “An appeal shall be had from the determination of the board of county commissioners as to the value of the land, crops, buildings and other improvements on said land, and for all other damages sustained by such person or persons by reason of such right of way so appropriated, in the same manner as appeals are granted from the judgment of a justice of the peace to the district court.” It is true that the appeal bond gave .jurisdiction to the district court, but as such bond recited therein all the property referred to in the proceedings of the commissioners, together with the amount of compensation allowed, and further stated that the valuation and assessment of damages were deemed totally inadequate and insufficient, we think the court ought to have permitted, under the appeal, proof of all actual dam-' ages sustained by the plaintiff by reason of the right of way being taken and appropriated by the defendant. “In such cases the damages must always very much depend upon the use to which the property is appropriated, and its situation and value with reference to other property of the same owner with which it is connected in use; and that rule of assessmént or valuation would seem to be the only true one which makes the-compensation go hand in hand with the actual loss or injury sustained by the person whose land is thus taken. People may do what'they will with their own — this is the essential idea of property;' and whilst speculative damages cannot be allowed, yet actual damages — its value to the owner, his use being considered — must always be.” (Welch v. Railway Co., 27 Wis. 108; Railroad Co. v. Merrill, 25 Kas. 421.) It was the duty of the commissioners, not only to have appraised the value of the right of way appropriated, but also to have assessed the damages of the owner’s interest; and the appeal is had from the determination of the commissioners as to the value of the land, and for all other damages sustained by the owner by reason of such right of way so appropriated. Therefore, if the land-owner is injured as to a whole tract of land, he is entitled to recover damages for the injury to the whole property, not merely for that to the separate lot or piece of land over which the railroad is built. In our view, it is always better for the court upon appeal to permit the landowner to file his petition setting forth his actual damages sustained by reason of the right of way being appropriated over his property, so that the railroad company may be fully informed before the trial of the evidence to be offered. But, ' independent of the filing of such petition, we think evidence should go to the jury as to all actual damages sustained by the land-owner by reason of the right.of way appropriated, as to all the premises used as one tract or piece of property, whether it consists of one or more lots — of one or more quarter-sections of land. In condemnation proceedings, the company is the party that sets in motion the steps whereby the owner is deprived of his land, and if such company only take a few feet from a tract of property consisting of more than one lot, and used together as one property, the damages are to be assessed with reference to the injury to the whole property, and not to the lot alone from which the right of way is taken. Under the provisions of § 4, article 12 of the constitution of the state, a railway company must pay for the right of way irrespective of any benefit from the proposed improvement of the company, and the compensation for such right of way appropriated to the use of the company includes not only the value of the property taken, but also the loss the landowner sustains in the value of his property by being deprived of a portion of it. (Constitution of Kansas, art. 12, § 4; St. Joe & Denver City Rld. Co. v. Orr, 8 Kas. 420; M. K. & T. Rly. Co. v. Haines, 10 Kas. 439; A. T. & S. F. Rld. Co. Blackshire, 10 Kas. 477; Rld. Co. v. Merrill, supra; Field on Damages, §846, p. 668.) In the first instance, the commissioners must appraise the value and assess the damages of the landowner’s interest. The appeal from such determination vacates the assessment and brings before the district court, de novo, the appraisement of the value and the assessment of damages; and this necessarily embraces, not merely the valuation and damage to the portion of the lot taken, but all the actual damages sustained by the land-owner by reason of the condemnation to the tract or parcel of. land inclosed and used as a whole property. Therefore on appeal, the company is bound to take notice, even without the filing of a petition by the landowner, that such owner has the right to offer evidence tending to prove all damages sustained by him by reason of such right of way so appropriated. Of course we do not intend to intimate from what we have already said, that lot 14, or the Tremont hotel property thereon, was in any way actually damaged by the appropriation of a portion of lot 13 by the defendant. That is a question of fact for the jury to determine— not for this court. But the district court erred in refusing to give the plaintiff the opportunity to offer evidence before the jury that she had sustained damages to lot 14 and the hotel property by the appropriation of a part of lot 13, which she alleged was a necessary part of the Tremont hotel property, and used in connection with lot 14. As to the two feet of ground alleged to have been taken outside of the condemned property, we think the court properly excluded any evidence of damages therefor. The appeal was from the determination of the commissioners as to the value of the land taken, and for all other damages connected with the appropriation of the portion of the lot so condemned. Beyond the limit of what was condemned, the company had no right whatever, and if it has used other portions of the lot of plaintiff, it is not a matter of inquiry upon an appeal from the condemnation. If the company has taken possession of any part of the lot beyond that which has been condemned, it is a trespasser thereon, and an action of ejectment may be prosecuted for its recovery, or an action for damages may be maintained for all wrongful acts done out side of the right of way acquired by the condemnation. (The State v. Armell, 8 Kas. 288.) While the conclusion we have reached concerning the right of the plaintiff to offer evidence of damages ’ to lot 14 and the hotel property thereon must necessitate a new trial, yet, as advisory of the action of the court upon a further hearing of the case, it is fitting that we should refer to the question of law presented in the cross-petition of defendant. The commissioners found the value of the land appropriated, and the damages for the taking thereof, at the time of the assessment, to be the sum of $279. Upon the trial, the jury found the sum tobe only $275. Under the instructions of the court they found, in a separate item, the amount of interest on said sum to bé $28.87-J. The court ordered the defendant to pay the $275 damages assessed by the jury, together with $28.87-\|- as interest theréon, making the total sum of $303.87J. But the costs were adjudged against plaintiff. It is clear that the land-owner shall not be allowed costs, if his recovery on appeal is less than the assessment of the commissioners. We think that where the money has been deposited as required by the statute, for the benefit of the land-owner, and upon appeal the land-owner recovers less than the deposit, such deposit may be treated as a tender before the appeal, and the railroad company is not required to pay interest during the pendency of the appeal. It is true, that the appeal vacates the assessment, but as the land-owner had the opportunity to accept such deposit, and on appeal recovers a less sum, whereby it is determined that he should have taken the deposit rather than have appealed, he ought not to be entitled to interest after the refusal of the deposit so tendered. The judgment of the court below will be reversed, and further proceedings had in accordance with the views herein expressed. All the Justices concurring.	[ -16, 106, -15, -83, 58, -32, 66, -72, 105, -95, -76, 87, -83, -56, 8, 127, -14, 29, -59, 104, -61, -73, 19, -29, -110, -13, 55, 69, -15, 92, -10, -41, 72, 33, -54, 21, 70, -54, 67, 92, -114, -123, -87, 64, -47, 96, 60, 123, 98, 79, 17, 47, -13, 44, 28, -61, -56, 44, -37, 45, 17, -15, -86, 21, 93, 6, 1, 102, -36, 3, -56, 60, -104, 49, -120, -24, 115, -90, -122, 116, 79, -69, 12, 46, 99, 33, 45, -49, 104, -104, 47, -6, -123, -89, -94, 25, 122, 65, -66, -103, 116, 84, 3, 126, -26, 1, 88, 108, -125, -113, -112, -9, 15, 52, -110, 91, -29, -89, 49, 113, -51, -94, 93, -58, 50, -101, -113, -8 ]
The opinion of the court was delivered by Horton, C. J.: The only question before us is, whether the special findings of the jury are inconsistent with the general verdict. If they are, the former control the latter and the judgment was properly rendered. If they are not inconsistent with the general verdict, the ruling of the court was erroneous, as it.was its duty to enter judgment upon the verdict, or to have set aside the verdict and findings and granted a new trial.' The trial court seems to have held, we judge, that the crops did not pass to the plaintiff under the contract of July 8, 1879; that plaintiff by such contract * holds only a claim against Berkshire for the value of the ci’ops; that by the sale he acquired only a jus ad rem and not a jus in re. If the title to the crops passed from Berkshire to plaintiff prior to the garnishee summons of July 11, 1879, plaintiff is entitled to a recovery. So long as Berkshire had the title and the right to control the property sold under the contract of July 8, 1879, it could be taken for his debts, notwithstanding any agreement he may have made to sell it, but in all cases of this character the intent of the parties controls, and if the parties intended a present vesting of title, it did in fact pass at once to the plaintiff, and that though the actual delivery was to be made at a subsequent date. In contracts of sale, the agreement is just what the parties intend to make it. The general finding of the jury finds every issue in favor of the plaintiff, and unless it appears from the special findings that it was not the intention of the parties to the contract of July 8,.1879, to vest the title in the plaintiff, such findings are not inconsistent with the general verdict, as by the general verdict we may assume that the parties intended a present vesting of the title, and that the property did in fact pass at the date of the contract at once to plaintiff. (Bailey v. Long, 24 Kas. 90.) It is true that the findings show that on July 11,1879, the wheat was standing in the stack undivided; that' the flax was in the field unharvested and undivided; that the corn was growing in the field unhusked and undivided. Yet, notwithstanding this condition of the crops, Berkshire had the power on July 8, 1879, to make a valid sale of any interest he had in the crops upon the farm leased by him, or that he expected to grow upon the farm at any time after the lease had been executed. He was not compelled to wait until the wheat was threshed and in the bushel, or the flax harvested and in the half-bushel, or the corn husked and in the crib. By the contract of July 8, 1879, if made in good faith and for a valuable consideration — and there is no finding to the contrary — if it was the intention of the parties to the contract that a present vesting of title was to take place, the title did in fact pass at once, although the actual delivery was to be made to plaintiff upon a division and separation of the crops. As the intent of the parties controls, if their intention was clearly aud unequivocally manifested at the making of the contract of sale that the title should pass at once — and there is nothing in the special findings to conflict with such an intention —Berkshire had no title and no right to the control of the property after said July 8th, and the same could not be taken for his debts. The general finding of the jury is in effect that plaintiff was the owner prior to July 11, 1879, and as a consequence he was entitled to recover his damages for any conversion of the crops by the defendants. We decide this case upon the theory that it was apparent' to the jury that it was the intention of Berkshire to transfer . the title to the plaintiff, and of the plaintiff to accept it at the date of the contract, and that they so found by their verdict. A party may make a valid sale of a crop growing on his-premises, or the grain that a field is expected to grow. (Hobart, 132.) Cl If rights are vested or possibilities are distinctly connected with interest or property, they may be sold.” (1 Parsons on Contracts, 5th ed., p. 523.) In Bellows v. Wells, 36 Vt. 599, it was held that a lessee might convey to his lessor all the crops which might be grown on the leased land during the term, and no delivery of the crops after they were harvested was necessary, even as against attaching creditors. See Hull v. Hull, 13 Reporter, 362. The eighth special finding is not material in this case, as it appears from the answer of the defendants that prior to September 23, 1879, (the date of the commencement of this action), Wilson, the lessee, and Martin, to whom a part of the farm had been sub-let, had separated the crops and delivered! over to W. T. Pugh, as constable, the portion claimed by plaintiff. So there was in fact before the commencement of this action an.actual division and separation of the crops, and the portion of the .crops to which plaintiff was entitled was turned over to Pugh to be sold and disposed of for the benefit of the defendant, M. G! Miller. The judgment of the district court will be reversed, with direction to the court to render judgment upon the special findings and verdict in favor of the plaintiff. All the Justices concurring.	[ -80, 122, -36, -115, 88, 96, 42, -40, 97, -88, -93, 83, -3, -61, 20, 125, -25, 77, 81, 106, -42, -105, 7, -63, -46, -45, -45, -59, 49, 72, -25, 94, 76, 52, -62, -107, -26, -53, 65, 20, -82, -121, -88, 101, 88, 112, 60, 30, 82, 73, 97, -98, -13, 46, 29, -57, 41, 44, 105, 53, 65, -8, 42, 79, 79, 22, 50, 38, -118, 7, -38, 46, -112, 57, 9, -56, 123, -76, -126, 84, 41, -101, 8, 102, 110, 33, 44, -19, 120, -116, 38, -1, 15, -25, -112, 104, 75, 34, -66, -99, 118, 18, -90, 126, -32, -36, 29, -27, 3, -121, -106, -93, -121, 108, -102, 89, -1, -85, 49, 97, -51, -86, 93, 4, 81, 59, -114, -82 ]
The opinion of the court was delivered by Hokton, C. J.: The questions which aré presented for our determination in this case are: First, does a judgment in the district court upon a note, given by the defendant to the plaintiff for the erection of improvements on a homestead, not showing upon its face the consideration thereof, become a lien on such homestead so as to be enforceable against the real estate after it has passed into the hands of an innocent purchaser for a valuable consideration ? Second, can the consideration for a judgment rendered upon a promissory note executed for the erection of improvements on a homestead, be shown by testimony in a suit between the purchaser of such homestead and the holder of the judgment, to restrain the judgment creditor from selling the real estate in satisfaction of the judgment? The constitution of our state expressly ordains that no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon. (Const., art. 15, §9; Comp. Laws 1879, ch. 38, §1. In Nichols v. Overacker, 16 Kas. 59, the court says, referring to this constitutional provision: “The spirit of that provision is, that no man shall enjoy property as a homestead, or an improvement thereon, as against the just claims of the person who procured it for him.” And following this interpretation of the constitution, it was held that there was no homestead-exemption law as against obligations contracted for the purchase-money. As to such obligations, the rule was held to be just the same as if no exemption law had ever been adopted, and that land held as a homestead was, with respect to such obligation, governed by just the same rules as if it were not a homestead. In Greeno v. Barnard, 18 Kas. 518, the court says: “A lien for purchase-money cannot be created on a homestead in any different manner than it can be created upon any other real estate. The homestead-exemption laws do not make any difference. Indeed there is no homestead-exemption law as against purchase-money. As to purchase-money, the homestead is just like any other real estate, and governed by the same rule as other real estate. A homestead may be sold on an execution for the purchase-money; but the judgment rendered for the purchase-money is no more a lien on the homestead than it is on any of the other real estate belonging to the judgment debtor. The debt for the purchase-money would not be a lien on any of the real estate of the judgment debtor until the judgment was rendered, and then the judgment would be a lien on all the real estate of the judgment debtor, including the homestead; and if there were no personal property, any of such real estate might be sold to satisfy the judgment.” An obligation for the erection of improvements upon a homestead stands upon the same basis as an obligation for the purchase-money, and the rule as to such obligations is just the same. To au obligation contracted for .the erection of improvements, the exemption law does not apply. And in all cases where a judgment is rendered upon an obligation for the erection of improvements upon a homestead, the judgment creditor, after exhausting the personal property of the judgment debtor subject to execution, may levy on the real estate so occupied as a homestead, and sell the same. Therefore it seems to us there can be no question but that if Tilghman and wife had continued to occupy the real estate as a homestead, upon which the improvements were erected, which are the consideration of the note originally sued upon, .such homestead would not have been exempt from sale to satisfy the judgment. As to an obligation for the erection of improvements on the land, the judgment is just the same as if no exemption law bad ever been adopted. When a judgment is rendered in the district court, it is a lien on all of the real estate of the judgment debtor within the county where the judgment is rendered, and the filing of a transcript of a judgment rendered by a justice of the peace in the district court gives the judgment of the justice the same force and effect as if rendered in the district court. It is not logical to say that the sale of a homestead by the owner thereof, with the judgment lien standing against it, satisfies the lien or releases it from the real estate. The purchaser takes it with the knowledge of the judgment against it, and he is bound at his peril to ascertain whether such judgment was rendered upon an obligation for the purchase-money, or for the. erection of improvements thereon. If rendered on obligations of this character, the judgment is a lien upon the real estate, regardless of its occupancy as a residence by the owner. As against the real estate, the judgment can be enforced whether the-judgment .debtor occupies it, or whether it is vacant, or whether it has been sold since the rendition of the judgment. From this we conclude that where a purchaser buys property, whether it be a homestead or otherwise, upon which a judgment creditor has a lien by virtue of his judgment, that he takes the property subject to such judgment lien; and in an action brought by the purchaser to obtain an injunction restraining the judgment creditor from enforcing his judgment, such creditor may offer testimony showing that the judgment was rendered upon an obligation contracted for the purchase of the premises or for the erection of improvements thereon, thereby showing that the property is not exempt from sale under the judgment. In our consideration of this casé we have treated the note on which the original judgment was rendered before the justice as written evidence of the indebtedness of Tilghman for the material used in the erection of improvements upon the-homestead. There is not anything in the findings inconsistent with this view, and the judgment of the trial court is in harmony therewith. The general rule is, that the acceptance of a promissory note does not extinguish the original debt. (Kermeyer v. Newby, 14 Kas. 164.) It is but the written evidence of the debtor’s indebtedness. True, it may be accepted' in absolute payment if the parties so agree, and whether they so agreed or not is a question of fact. (Medberry v. Soper, 17 Kas. 369.) If the note originally sued on had been given or accepted as an absolute payment of the debt for the material furnished, then such debt would have been wholly discharged by the express agreement of the parties thereto, and the original consideration of the note of no' importance. A judgment rendered upon a promissory note taken in absolute payment of a debt for the erection of improvements on a homestead cannot be enforced against the homestead. The taking of a note under such circumstances would extinguish the original debt. The judgment of the district court will be affirmed. All the Justices concurring.	[ -15, 108, -48, -65, -54, 96, -86, -104, 89, -90, -93, 91, 111, -54, 20, 105, 52, 15, 113, 104, 87, -78, 23, -61, -48, -5, -47, 93, -79, 73, -28, 87, 76, 32, -54, 53, -26, 11, -59, 84, -58, -121, -102, 71, -7, 64, 52, 67, 94, 75, 117, -49, -13, 46, 25, -61, 41, 40, 75, 61, -111, -72, -65, -115, 127, 7, 51, 37, -120, -29, -6, -126, -112, 121, 0, -24, 119, 38, 23, 116, 73, -69, 40, 102, 98, 16, 109, -1, -8, -104, 15, 126, -115, -89, -112, 88, 42, 33, -66, -35, -4, 112, -17, -26, -26, 5, 29, 108, 15, -66, -42, -79, -113, -4, 24, 66, -50, 35, 17, 96, -51, -30, 84, 98, 57, -101, -114, -8 ]
The opinion of the court was delivered by Horton, C. J.: This is an application for a mandamus to compel the board of county commissioners of the county of Sumner to order the county clerk of said county to issue a license to the plaintiffs, composing the Oxford Ferry Company, to operate and maintain a ferry across the.Arkansas river near the town of Oxford. The facts in the case are as follows: On the 25th of May 1877, the plaintiffs presented to the county board of said county a petition signed by forty-three residents of Oxford township, praying that a license be granted to them under their firm-name to establish, operate, and maintain a ferry across the Arkansas river opposite the town of Oxford in said township. The plaintiffs then proved to the satisfaction of the defendant that the signatures to the petition were genuine, and the further hearing was postponed to the next day, May 26th. On the morning of the 26th, the plaintiffs appeared before the county board and asked that their petition be taken up and acted upon. Thereupon one John Murphy filed his petition with the board, signed by twenty-three residents of Oxford township, praying that a license be granted to him to establish, operate, and maintain a ferry across the same river, and at the same point as applied for by the plaintiffs. The county board, against the objection of the plaintiffs, decided to consider the petition of the said Murphy at the same time as the petition of plaintiffs, and that evidence might be introduced by the respective parties.. It was shown by the plaintiffs that since the destruction of the bridge across the Arkansas river at the point mentioned in their petition, they had been operating for the accommodation of the traveling public a skiff, or small boat, to carry passengers over the river; that they had leased of one C. E. Kimball, the owner of the land along the west bank of the river, land for a distance of three hundred feet for a ferry-landing. They also presented and asked to have considered a written agreement from one H. L. Benedict, claiming to be the agent of one R. Wanser, giving to them certain rights and privileges to the lands on the east bank of the Arkansas for ferry purposes, to show that plaintiffs had the exclusive right to the use of t‘he east bank of said river for a ferry-landing; and the plaintiffs proved that the land on the east bank of said river opposite said town of Oxford belonged to the said R. Wanser, who was on that day absent from the county, and had been absent for a long time, and that H. L. Benedict was a tenant of said Wanser, residing on a farm a short distance from the rivér. The plaintiffs further proved that they had commenced work on the approaches for a ferry-landing on the west bank of the river, on said 26th of May; that one of the firm had started for Wichita on the 25th for the purpose of constructing a ferryboat to be used at their ferry, with sufficient means to build a good boat, and that they were able to give a good and sufficient bond for the proper fulfillment of their duties as required by law. Said Murphy proved to the county board, that a corporation called the “Oxford Bridge-and-Ferry Company” had been organized in 1872, under and by virtue of the laws of the state of Kansas, and had built the toll-bridge across the Arkansas river at the town of Oxford, which was carried away by the high waters on the 18th of May 1877; that on the 21st. of May, the directors of this corporation held a meeting and contracted with the said Murphy to build and operate a ferry boat at or near said bridge site, which contract was in writing, and presented in evidence; that the said Murphy had ferry privileges on the west bank of the river within fifty feet of the bridge; that in pursuance of said contract the said Murphy, on the 23d of May, left Oxford for Wichita for the purpose of building a ferry boat to be used at said ferry, the boat to be at Oxford by the 28th of said May thereafter, or as soon as possible. One J. L. Abbott also testified that he was the agent of said R. Wanser for the purpose of looking after his timber along the east bank of the river, and to prevent persons cutting timber on his lands, and that he has given permission to said Murphy to land his boat on the east side of the river on Wanser’s land, until Wanser’s return. Thereupon the defendant granted the petition of John Murphy, and refused the petition of the plaintiffs, against the remonstrance and protest of Samuel Bain, one of the members of the county board. Murphy thereupon paid into the county treasury the sum of forty dollars, being the amount of his license for one year, and executed his bond as required by law; and the county clerk issued to him a license to establish, operate, and maintain a ferry at the point contended for during one year, in accordance with the orders of the defendant; and said Murphy has ever since that time been operating a ferry across the Arkansas river opposite the said town of Oxford at a point within fifty feet of the site of the former bridge of the bridge-and-ferry company. Said Murphy has, since the said 26 th of May, leased from the said Wanser all the ferry rights and privileges on the east bank of the river opposite the town of Oxford for the space of one year from June 18th 1877. The counsel for the plaintiffs have not seen fit to file any brief in the case, nor have they attempted to enlighten us by oral argument, or otherwise, as to the points upon which they rely; and within our rules we might dismiss the case for want of prosecution. But having given due consideration to the questions presented by the facts recited in the record, and having carefully considered the statute regulating ferries, and finding sufficient reason for refusing a peremptory writ of mandamus, we think it best to dispose of the case on its merits. Sections 2 and 4 of the ferry act, (Gen. Stat. 499,) are as follows: “ Sec. 2. Any person or corporation may petition the board of county commissioners of the county for license to keep a ferry, and if said board believes such ferry necessary for the accommodation of the public, it shall order the county clerk to issue a license, upon the payment of the tax to be assessed in such order.” * * * “Sec. 4. Upon the production of the receipt of the county treasurer for the tax to the county clerk, he shall issue a license to keep a ferry at the place therein mentioned for one year.” If the license was legally issued to the second petitioner, viz., John Murphy, we suppose it will be conceded that the defendant could not be compelled to grant an additional license to the plaintiffs to operate a ferry at the same point. Hence, the only question really presented in the record is, whether the county board acted within the provisions of the law in ordering the county clerk to issue the license to Murphy. It is not shown nor claimed that the county board acted capriciously, corruptly, arbitrarily, or oppressively. When the first application was presented, and before the hearing thereon was concluded, the board adjourned till the next morning; and prior to the commencement of the hearing on that day, an additional petition for a license to keep a ferry at the same place was filed, and thereupon the board concluded to receive the evidence on each petition before taking final action. At the time of making this order both of the petitions were legally before the board for consideration. Much oral testimony was submitted. The commissioners had the opportunity of seeing and hearing the witnesses, of becoming well acquainted with the applicants, and fully understanding the facilities each had for faithfully carrying out his agreement; and having decided that they believed a ferry necessary at Oxford, it devolved upon them to make a selection from the persons applying for the license. They were the proper parties to judge which of the applicants was most worthy of their confidence and most likely to best accommodate the public in keeping and operating a ferry. Both could not succeed. They could accept one, and reject the other. They were compelled to make a choice. Two ferries were pot needed. In the exercise of their powers they granted a license to Murphy. The selection seems to have been judiciously made, and subsequent events have fully sustained the action of the majority of the board. We do not think the mere fact that the Oxford Ferry Company presented its application for a license prior to the petition of Murphy, any sufficient reason for compelling the issuance of the license to such company, so long as both petitions were really considered at the same time by the board. If such a ruling was adopted, the granting of a license to keep a ferry, would, in a conflict of applications, depend more upon the priority of the filings of the petitions than upon the ability and capability of the applicants to supply the public with ferry accommodations. In brief, if the claim of the plaintiffs is to be sustained, the statute is to be so construed that the interests of the public would be secondary to the priority of the filing of the various applications with the county commissioners. This construction should not be given to the statute, if it be susceptible of any other; and in our view this construction would be erroneous. The board of county commissioners is a tribunal with mixed powers, administrative and judicial; and it has full jurisdiction conferred upon it by the statute over the granting of licenses to ferries outside of the limits previously disposed of for ferry privileges by legislative enactments. It is a question whether the judgment and determination of the board as to the issuance of a license is not, in cases like this, final and conclusive, as a matter confided to their sound discretion. But whether their action may be subject to review, we need not determine. We find the board did not exceed its powers in granting the license to Murphy, and as no showing is made that an additional ferry is necessary for the public convenience, no wrong was committed in rejecting the application of the plaintiffs. The application for a peremptory writ of mandamus must therefore be denied, and judgment rendered for the defendant for all costs. All the Justices concurring.	[ 116, 110, -75, 60, 104, -30, 80, -104, -45, -77, -27, 83, -81, -39, 5, 113, -25, -3, -43, 123, -62, -74, 117, 98, -48, -13, -5, -58, -79, 72, -28, 71, 74, 33, -54, 29, -58, -28, -57, 92, -34, 1, 9, -23, 89, 91, 60, 107, 66, -117, 21, -113, -13, 46, 24, -61, -87, 44, -53, -115, 25, -15, -81, -41, 93, 22, 33, 36, -104, 1, -24, 60, -112, 49, 17, -8, 119, -90, -114, -11, 75, -103, 8, 114, 99, 99, -99, -21, -84, -88, 22, -6, -127, -90, -106, 1, 74, 65, -98, -99, 122, 18, 6, -6, -30, -115, 81, 108, 1, -49, -112, 123, -113, -84, -122, 17, -61, 15, 48, 116, -64, 114, 93, 69, 49, -69, -98, -76 ]
The opinion of the court was delivered by Valentine, J.: This was an action brought by Blanche Litowich, against B. A. Litowich, Ed. Wittman, and Ray Hollingsworth, for the purpose of obtaining alimony from said Litowich, her alleged husband, and of restraining all the defendants from selling or disposing of the property of her said alleged husband. At the time of the commencement of this action the plaintiff obtained an order from the judge of the court below, at chambers, granting to her, as alimony pendente lite, (using the word alimony in a broad sense, including suit money,) $100 for attorney-fees and expenses of the suit, and $100 for her support, and restraining the defendants .from disposing of any of her husband’s property except “in the due course of their trade and business as merchants in the town of Salina.” Afterward the defendants moved to vacate said order. Pending this motion, the plaintiff moved for an attachment against said Litowich, requiring him to answer for an alleged contempt in not obeying said order with respect to the payment of alimony. By consent of parties these two motions were heard together, and at the same time. It would also seem that the judge of the court below also heard still another motion at the same time, made by the plaintiff for additional alimony. A vast amount of evidence was introduced upon the hearing of these motions, and upon this evidence the judge vacated said order with respect to Hollingsworth, and after modifying such order in some particulars with respect to the other two defendants continued it in force substantially as to them. The judge refused to grant the attachment asked for by the plaintiff, and refused to give her any additional alimony. Defendants Litowich and Wittman excepted to the rulings of the judge of the court below against them. They also moved for a rehearing of their motion to vacate said order, which motion was also overruled, and they duly excepted; and they now bring the case to this court for review. While the judge of the court below may have committed some immaterial errors, we cannot say that he committed any substantial error. It would seem to us thát alimony pendente lite should have been allowed in this case; and we cannot say that $200, including suit money, was too much, And we also think, that under the circumstances of this case the injunction pendente lite was also proper. That the said B. A. Litowich and Blanche Litowich were married to each other on March 26th 1876, and that they remained husband and wife from that time up to April 5th 1877, is admitted by all the parties. The plaintiff claims that she still remains the wife of said B. A. Litowich. But the defendants claim that on the 5th of April 1877, the said B. A. Litowich was divorced from the plaintiff, and that the marriage relation then existing between them was wholly severed and dissolved. And to prove such divorce, the defendants introduced in evidence a duly-certified copy of a judgment rendered by the probate court of Davis county, Utah territory, purporting to grant such divorce. This judgment shows upon its face that there had been “ pleadings,” and a “summons,” and “service of summons,” and “proof” in the case in which it was rendered; and yet no such pleading, or summons, or service, or proof, was introduced in evidence on the hearing of the motions in this case. The judgment upon its face seems to be valid; but whether it would still appear to be valid if the whole of the record of the case in which it was rendered had been introduced in evidence, we cannot tell. But from evidence dehoi's the record we know that said judgment is void absolutely and entirely. It was rendered wholly without jurisdiction. The parties thereto, B. A. Litowich and Blanche Litowich, were married in Kansas. They resided together in Salina, Kansas, up to the 8th of January 1877, when Mrs. Litowich went to her mother’s at Atlantic City, N. J., expecting her husband soon to sell his property in Kansas and follow her. Afterward he did sell said property, (the sale however was probably a sham sale,) and then on the 5th of March 1877, leaving Salina, went to Denver, to Cheyenne, and to Chicago, 111., where he employed a lawyer, (A. J. Dexter, by name,) to procure a divorce for him. This lawyer procured said Utah divorce. Neither of the parties had ever resided in Utah, neither of them had ever been there. And neither of them had ever had any expectation of residing there. After procuring said divorce said B. A. Litowich returned to Salina by way of Kansas City, reaching Salina on the 14th of April 1877. He then repurchased his former interest in a mercantile establishment located at Salina, and is now residing there and doing business there as a merchant. On the same day that he returned to Salina he wrote to his wife concerning said divorce, and this was the first notice that she ever received from any source that he had any intention or desire to procure a divorce. The letter is as follows: , Salina, Kansas, April 14, 1877. Mrs. Blanche: I received your letter. I just got to Salina. I am living in Chicago, 111., and think to go back there soon. I shall not remain in Salina only two days longer. I have sued you for a divorce at Chicago. Would have notified you before, but was not sure where you were. Don’t write to me any more. Try and think of some one else. Respectfully, B. A. Litowici-i. Mrs. Litowich, having learned that her husband had remained at Salina, subsequently returned, and on 31st August 1877 she commenced this action for alimony. We think that said parties B. A. and Mrs. Litowich were still husband and wife when this action was commenced, and are now husband and wife. Said Utah judgment, being void for want of jurisdiction, did not change their matrimonial status, nor affect any of their rights with respect to each other. That a judgment rendered- without jurisdiction • is void, we have assumed as settled law. And the supreme court of Indiana has recently decided that a judgment granting a divorce rendered by a probate court in Utah, upon jurisdictional facts and circumstances almost precisely like those upon which the present judgment was rendered, was a judgment rendered without jurisdiction and consequently void. (Hood v. The State, 5 Cent. Law Jour. 35.) And this decision of the supreme court of Indiana, is in accordance with . . . , ' unkroken current or authority. (2 Bishop Marriage & Divorce, § 144.) And where the judgment granting the divorce does not appear to be void upon its face, it may be shown to be void by evidence aliunde. (Hoffman v. Hoffman, 46 N. Y. 30, 33; Kerr v. Kerr, 41 N. Y. 272; Borden v. Fitch, 15 Johns. 121, 141; Leith v. Leith, 39 N. H. 20; Pollard v. Wegener, 13 Wis. 569, 576.) And indeed, any judgment from a sister state, void for want of jurisdiction, may be shown to be void in any proceeding, direct or collateral, and by evidence dehors the record, provided that the record itself does not show the invalidity of the judgment upon its face. (Thompson v. Whitman, 18 Wall. 457; Knowles v. Gaslight Co., 19 Wall. 58; Rape v. Heaton, 9 Wis. 328, 332; Price v. Ward, 25 N. J. L. (1 Dutch.) 225; Aldrich v. Kinney, 4 Conn. 380; Starbuck v. Murray, 5 Wend. 148, 156; Shumway v. Stillman, 6 Wend. 447, 452; Hall v. Williams, 6 Pick. 232, 237; Carleton v. Bickford, 13 Gray, 591; Pollard v. Baldwin, 22 Iowa, 328; Norman v. Cobb, 15 Texas, 500; same case, 24 Texas, 551.) In Ohio it has been held that even if the foreign judgment' granting a divorce to the husband, without jurisdiction of the wife, and while she resided in Ohio, were sufficient to dissolve the marriage relation, still that such a judgment would not be any bar to an action afterward brought by the wife in Ohio against her said husband to procure alimony. (Cox v. Cox, 19 Ohio St. 502, and 20 Ohio St. 439.) The defendants claim that the plaintiff cannot maintain this action because she was not am actual resident, in good faith, of this state for one year next preceding the filing of her petition for alimony in this case, and cite as authority therefor sections 640 and 649 of the civil code. (Gen. Stat. 757, 759.) Now except for the ab-v , . it sence ot the plaintiff from 8th January 1877 to 28th August 1877, while she was visiting her mother at Atlantic City, N. J., and except for the absence of the defendant from 5th March 1877 to I4th April 1877, while he was traveling and procuring his said Utah divorce, etc., both parties were actual and bona fide residents of the state of Kansas for much more than one year next preceding the commencement of this action. They were both residents of Kansas prior to said absence, and were both residents when this action was commenced. But for the purposes of this casé we will suppose that neither of the parties was a resident of Kansas for the whole of the year next preceding the commencement of this action: then may the plaintiff maintain this action? "We think she may. The statute provides that, “The wife may obtain alimony from the husband without a divorce, in an action brought for that purpose in the district court, for any of the causes for which a divorce may be granted.” (Code, §649.) There is no statute requiring that either party shall be a resident of the state of Kansas in order that the action for alimony may be maintained; and the statute requiring a residence for one year on the part of “ the plaintiff in an action for divorce,” does not apply in an action for alimony. Residence forms no part of “any of the causes for which a divorce may be granted;” nor is it mentioned in the statute among such causes. (See § 639, civil code.) The “causes, for which a divorce may be granted,” are all sup posed to be founded upon wrongs, and not upon meritorious conduct. The defendants claim that the judge below erred in refusing to permit them to go into the merits of the case, and' to show that the allegations of the plaintiff’s petition were false. We do not think however that any substantial error was committed in this respect. Upon a motion for alimony pendente lite, the merits of the action • ¶ -, are not involved any further than is necessary for the purpose of ascertaining whether the plaintiff is or is not prosecuting her action in good faith. (2 Bishop Mar. and Div., §§384, 406a, 407.) Her petition should state a cause of action; and it Should then be made to appear, prima fade at least, by evidence, or by the admission of the parties, that the parties were husband and wife, that the wife needed alimony pendente lite, and that she was prosecuting her action in good faith; and evidence might also be introduced to show the pecuniary and social condition of the parties, and the probable expenses of the litigation, for the purpose of determining the amount of alimony (including suit money) to be allowed pendente lite. All these things we think were sufficiently shown to entitle the plaintiff to the alimony allowed her. The causes alleged for the permanent alimony were “extreme cruelty,” and “gross neglect of duty.” We do not wish to say anything now concerning the merits of the action. The judge below may have committed some errors in allowing B. A. Litowich to be cross-examined upon matters not given in evidence in his examination in chief, but if so the errors were wholly immaterial. Strike out all of the testimony of Litowich so given, and still the same result would necessarily follow. Strike it all out, and still there would be ample evidence to show that said Utah divorce was rendered without jurisdiction, and is therefore void. We cannot say from the record brought to this court that the judge below erred in receiving in evidence the above-quoted letter. After an instrument in writing is offered in evidence, and before it is received, the adverse party is entitled to an inspection thereof. We cannot say from the record that .the judge below disregarded this rule; but even if he did, we cannot see in this particular case how it could have worked any injury to the defendants. It not appearing that the district judge committed any substantial error, his orders granting alimony, etc., must be affirmed. All the Justices concurring.	[ -16, 104, -80, 77, 10, 96, 42, -71, 112, -95, -91, 83, -27, -9, 0, 105, -70, 61, 16, 106, -45, -73, 15, 99, -42, -45, -79, -59, -79, 77, -25, -41, 77, 56, -126, -43, 102, -62, -59, 84, -126, 5, 8, -28, -39, 70, 48, 123, 66, 75, 113, -116, -13, 47, 29, 67, 110, 44, 89, 117, 112, -72, -85, -113, 95, 18, -109, 4, -100, 68, -40, 46, -104, 49, 9, -31, 115, -74, 6, 116, 43, -71, 13, 38, 98, 7, -107, -4, -88, -104, 14, 118, -115, -90, -112, -48, 66, 1, -66, -97, 117, 92, -121, 118, -38, 29, 29, -20, 11, -101, -106, -79, 47, 62, -100, -126, -17, -121, 32, 97, -63, 112, 77, 86, 57, -101, -50, -106 ]
The opinion of the court was delivered by Brewer, J.; This action was brought by the county attorney of Allen county in favor of the state, for the purpose of having a judicial finding of fact that the conditions of the bond or contract of purchase given by the defendants as required by law (see sec. 7, article 14, ch. 122, laws of 1876,) for the purchase of a certain tract of school land therein named and described had not been complied with,'and that the defendants have forfeited their interest in said land by reason of said purchase, together with the money paid thereon, to the state; and asking that the court adjudge a forfeiture of said land and money paid to the state, and a restoration of said land to the state, unless the defendants pay the amount due on said contract of purchase, and costs of suit, within ten days from the entry of judgment. Said bond is set up and made a part of the petition. The defendants demurred to the petition, setting forth several grounds, but the only ground presented by counsel, or considered by the court, was, “that the petition did not state facts sufficient to constitute a cause of action in favor of the state against the defendants.” The district court .sustained the demurrer, and the plaintiff brings the case to this court for review. This case involves the construction of sections 7 and 16 of article 14 of ch. 122, laws of 1876, pages 282, 284. Said section 7 reads as follows: “Any person purchasing said land shall pay to the treasurer of the county in which the same is situate, one-tenth of the amount of the purchase-money, taking therefor a receipt which he shall present to the county clerk, together’w;j¿/¡, a bond in double the amount of the purchase-money unpaid, conditioned that he will not commit waste upon said land, and that he will pay the balance of said purchase-money in ten years, and interest thereon at ten per cent, per annum, as the same becomes due; provided, that the purchaser may pay the balance of the purchase-money at any time, or in installments of not less than twenty-five dollars each.” Section 16 reads as follows: “Any purchaser failing, to pay the annual interest when the same becomes due, or the balance of the purchase-money when it becomes due, shall forfeit all right to the land from the time of said failure of payment, and the county attorney shall proceed to eject him from said premises, if in possession.” On the one hand it is claimed, that this last section is a legislative declaration of forfeiture in advance, and that, if the purchaser fails to make payment at the stipulated time, ipso facto the land is absolutely forfeited; and on the other, that it is optional whether to claim a forfeiture, or to waive it and proceed upon the bond to collect the purchase-money; and that the county attorney, as the legal representative of the state in this behalf, may make the election, and that as the power of election exists there is absolutely no forfeiture until after the election and a judicial determination. Much is said in the arguments as to the comparative advantages and cost to the state school fund of these respective constructions of the statute; but such considerations as these are principally for the legislature, and. not for the courts. It cannot be doubted that the legislature has the power to adopt either course. It can make the forfeiture absolute upon the mere fact of non-payment, or it may leave the matter open for further decision, and retain an election to pursue its remedy upon the bond, or obtain a judicial declaration of a forfeiture. It is not therefore a question of power, but one of construction. What did the legislature intend ? and what is the fair import of the language used? It seems to us clear that there is a legislative declaration of forfeiture in advance, and that upon the happening of the event the forfeiture occurs, and no judicial proceeding is necessary to determine it. The language of the statute is clear, positive, and peremptory. “Any purchaser failing * * * shall forfeit.” And the duty cast upon the county attorney is equally clear and positive, not to seek a judicial determination of the forfeiture, not to foreclose any equitable mortgage, or to collect the bond, but to eject the purchaser if in possession. And ejectment implies full title in the plaintiff, and no rights in the defendant. It implies a forfeiture already existing, and not one to be declared. The authorities support this view. In Borland v. Lewis, 43 Cal. 569, which was ejectment for swamp lands purchased of the state, it appeared that the sixth section of the act providing for the sale of such lands read, that “if any person or persons purchasing lands * * * shall fail or neglect to pay the principal and interest, * * * or shall fail and neglect to pay the interest, * * * such neglect or failure shall work a forfeiture of such lands, and the same shall be resold as if no purchase had been made.” And the court held that a failure to pay ipso facto worked a forfeiture. In the case of the O. R. Co. v. O. B. & F. V. R. Co., 45 Cal. 365, the court, reviewing several authorities, decided, that “when a forfeiture is declared by statute the title to the thing forfeited immediately vests in the state, upon the commission of the offense, or the happening of the event, for which the forfeiture is declared.” In Conklin v. Hawthorne, 29 Wis. 476, which also arose upon a purchase of swamp lands from the state, the court uses this language: “The certificate contains a provision that in case of the non-payment of any interest on the unpaid purchase-money within the time prescribed by law, the certificate, from the time of such failure, shall be utterly void and of no effect. This provision is doubtless in strict accordance with the law in that behalf. There was such failure by Tracy to pay interest, by means whereof the certificate became utterly void and of no effect.” See also Kennedy v. Strong, 14 Johns. 129; Fountain v. Phoenix Ins. Co., 11 Johns. 293; Bennett v. Art Union, 5 Sandf. 614; N. Y. H. & N. Rld. Co. v. B. H. & E. Rld. Co., 36 Conn. 166; Wilkins v. Despard, 5 Term Rep. 112; U. S. v. Grundy, 3 Cranch, 337. This last case is also cited by counsel for the state as sustaining their construction of the statute, but we think its authority is entirely on the other side. In it C. J. Marshall says: “ Where a forfeiture is given by statute, the rules of the common law may be dispensed with, and the thing forfeited may either vest immediately, or on the performance of some particular act, as shall be the will of the legislature. This must depend upon the construction of the statute.” Construing the statute there, the decision was adverse to the forfeiture ipso faoto. But that statute expressly provided for an alternative. “ There shall be a forfeiture of the ship, or of the value thereof, to be recovered with costs of suit of the person by whom such oath shall have been made.” That alternative clearly gave an election, and until the election was made the' court properly held that there was no forfeiture. But here the statute gives no alternative. A forfeiture is positively declared. But one thing is forfeited. And a single duty is imposed upon the county attorney in case of such forfeiture. The cases cited by the state, ánd upon which counsel chiefly rely, are not in point. Schulenberg v. Harriman, 21 Wall. 44, to which our especial attention is called, simply decides, that “no one can take advantage of the non-performance of a condition subsequent annexed to an estate in fee but the grantor, or his heirs or successors, and if they do not see fit to assert their right to enforce a forfeiture on that ground the title remains unimpaired in the grantee.” But here the condition is precedent, and not subsequent, and no estate in fee ever passed. Of similar import are most of the other authorities cited. We see no error in the ruling of the district court, and the judgment must be affirmed. All the Justices concurring.	[ -14, -18, -39, -68, -86, 96, 42, -104, 99, -95, 35, 83, -87, -46, 1, 113, -96, 105, 113, 104, 86, -78, 115, -30, -42, -77, -39, -43, -79, 77, -26, -41, 76, 36, -62, -35, 70, -62, -63, -104, -118, -127, -103, 64, -45, -32, 52, 63, 18, 11, 53, 15, -29, 44, 25, 99, -23, 44, -53, 41, 64, -7, -65, -57, -1, 7, -95, 103, -36, 3, -54, 106, -104, 49, 2, -24, 115, -74, 6, 52, -115, -103, 8, 98, 103, 0, -75, -3, -104, -88, 38, -37, -83, -90, -47, 88, 42, 0, -66, -99, 124, 19, 7, -6, -30, 4, 83, 108, 7, -53, -10, -77, 15, 52, -102, 3, -1, 43, 48, 65, -51, -10, 92, -29, 56, -101, -50, -7 ]
The opinion of the court was delivered by Valentine, J.: This was an action to recover damages for personal injuries sustained by the plaintiff below through the fall of a derrick upon him, while in the employ of plaintiff in error, as a laborer, in building a culvert. The jury found in substance, that there was no negligence in originally providing the derrick, but that it became defective while used in building the Culvert, and that Owens, foreman of the job, continued to use it after he knew of its defective character. We agree with the learned counsel for plaintiff in error, that the court below committed errors, but under the facts of the case and the(record brought to this court, we think that none of them are available. Some of them were wholly immaterial, and some of them were not , , . . ___ properly saved by proper exceptions. W e agree with counsel that the testimony of William Little, sen., as to what Owens and Ridgway said at the Clifton House in Lawrence on the next day after the accident occurred, was erroneously admitted; that the court below erred in refusing to strike it out, and also .erred in refusing to charge the jury to disregard it. But under the undoubted facts of this case we think these errors were immaterial. The court also, by giving instruction No. 1 as asked for the plaintiff, and by refusing to give instructions Nos. 10 and 16 as asked for by the defendant, seemingly at least instructed the jury that the railroad company warranted the sufficiency of its machinery. This was erroneous. A railroad company does not warrant the sufficiency of its machinery; but is required only to use due care in supplying and in keeping in order good and proper machinery, and is responsible only for negligence in not doing so. But these errors we think were also immaterial under the facts of this case. The court also erred in defining “gross negligence,” making it entirely too' mild, and then again erred in instructing the jury that if the defendant was guilty of gross negligence the plaintiff might recover exemplary damages. In effect the court instructed the jury, that the plaintiff might recover exemplary damages for mere ordinary negligence. This is not the law. The plaintiff had no right to recover such damages for any negligence less than §ross negligence amounting to wantonness. (L. L. & G. Rld. Co. v. Rice, 10 Kas. 426.) These instructions however were not excepted to, and therefore the errors committed in giving them are not available in this court. Probably however no harm was done by giving said instructions, as we do not think that the jury allowed anything as exemplary damages. The plaintiff in error also complains of the refusal of the court below to give the 20th and 24th instructions asked for by it. Said instructions read as follows: “20.-In weighing the testimony offered on behalf of the parties, the jury will- consider that the plaintiff is deeply interested in the result of the suit, and will view his testimony with proportionate suspicion.” “24.-Parties to suits, and their immediate relatives, are by the law held to be more or less biased against the adverse party; and in this case the credibility of the plaintiff, his father, brother, and sister, are directly in issue — the plaintiff as interested, and the others as biased witnesses against the defendant.” Now we cannot say that the court below erred in refusing to give these instructions. Their lánguage is a little too strong. We cannot say that, as a matter of law the evidence a jParty must be viewed with “suspicion.” Nor can we say that, as a matter of law relatives must be “held to be more or less biased against the adverse party.” The reverse of this is sometimes true. And while it is the duty of the trial court, if asked to do so, to instruct the jury that they may take into consideration the interest or relationship of any witness in weighing his testimony, yet the court may very properly leave it to the jury to say whether such witness is biased or prejudiced, or not, and whether his testimony must be viewed with suspicion or not. There was no conflict in the testimony of the witnesses in this case, and there was nothing that transpired during the trial that should have caused the jury to look with suspicion upon the testimony of any witness. There was no ground at all upon which to base these instructions except the mere fact of interest of the plaintiff, and the mere fact of relationship to him of some of the other witnesses. We cannot therefore say that the court below erred in refusing to give these instructions. We now come to the main question in the case: Was the railroad company, with respect to the plaintiff, responsible for the negligence of Owens ? Was Owens, with respect to the plaintiff, a superior servant, representing the railroad company, or was he a mere fellow-servant with the plaintiff? The work to be accomplished in which Owens and the plaintiff and others were engaged, was the building of a culvert for the railroad company. Owens was the foreman of the work. He employed all the other persons engaged therein, and had the power to discharge them whenever he thought proper to do so. He hired the plaintiff, who was merely a laborer on the work. Owens did not furnish the materials, nor the tools, nor implements, for building said culvert, and he did not have the authority directly to do so. They were furnished by other employés of the company, superior to Owens. Owens however had the power to inspect said materials, tools, and implements, and if not sufficient or if they became insufficient to apply to his superior officers for others. The jury found specially that “it was the duty of Owens to inspect the derrick, and see that it continued in good order.” Said derrick was sufficient and in good order when Owens received it. But after ward by use it became insufficient. One of the ears of the spider into which one of the guy-rods was hooked became cracked and partially broken. The spider was of cast iron. Owens knew of the condition of the spider, and \ knew that because of said crack the derrick was unsafe; and yet he continued the work on the culvert, and continued to use said derrick. The ear of said spider broke off where it was cracked, and in consequence thereof the derrick fell and injured the plaintiff while he was at work for the company, and under the orders of Owens; and it is for such injury that the plaintiff instituted this áction. The foregoing facts are unquestioned. They were established by proof and by admissions beyond a reasonable doubt. And therefore, if the plaintiff is entitled to recover upon these facts, then all the errors committed by the court below, or at least all that were sufficiently saved by proper exceptions, must now be considered as wholly immaterial, and the plaintiff’s judgment must be affirmed. Whether the plaintiff is entitled to recover upon these facts, depends as we think, upon whether the railroad company is responsible for Owens’ negligence or not. That Owens was negligent in using said derrick after he knew that it had become insufficient and unsafe, we suppose no one will question; but whether this negligence was the negligence of the railroad company, may be questioned, and is questioned. We think it was. Owens was the only representative that the railroad company had upon that work. He was really the superintendent of the railroad company for that particular work. As to the laborers on the work he was the railroad company itself. If he had been merely a foreman working under a common employer, a common master, a common principal, along with the other employés, then we suppose under the authorities he would have been only a fellow-servant with the others and the company would not have been responsible for his negligence toward the others. But he was not merely á foreman working with the others under a common employer. As to the others he was the employer himself. He was their master, their prin cipa!. He hired and discharged them. He inspected the machinery used by them to see that it continued in good order— or at least such was his duty; and he superintended the work generally. They scarcely knew of any other principal or master. All their dealings were with him, except that he did not originally furnish the materials and machinery, and did not pay them. But he had charge of everything after it was furnished, and they could draw their pay only through him and upon his statements and orders. In Shear-man & Redfield on Negligence, section 102, it is said as follows: “One to whom his employer commits the entire charge of the business, with power to choose his own assistants, and to control and discharge them as freely and fully as the principal himself could, is not a fellow-servant with those who are employed under him; and the master is answerable to all the under-servants for the negligence of such a managing assistant, either in his personal conduct within the scope of his employment, or in his selection of other servants.” We have found no case exactly parallel with this, but we would refer to the following cases as throwing some liglit upon the questions herein discussed: K. P. Rly. Co. v. Salmon, 14 Kas. 512, 522, et seq.; Lanning v. N. Y. C. Rld. Co., 49 N. Y. 521; Flike v. Boston & C. Rld. Co., 53 N. Y. 549; Corcoran v. Holbrook, 59 N. Y. 517; Ford v. Fitchburg Rld. Co., 110 Mass. 240; Brothers v. Carter, 52 Mo. 372; Gilson v. Pacific Rld. Co., 46 Mo. 163; Harper v. Indianapolis & C. Rld. Co., 47 Mo. 567. The court below did not err in admitting evidence as to what Owens said, or what was said to him prior to said accident, concerning the insufficiency of said derrick. Such evidence was proper for the purpose of showing that Owens knew that the derrick was unsafe. The judgment of the court below will be affirmed. All the Justices concurring.	[ -16, 106, -40, -67, 28, 106, 42, 72, 65, -95, -25, 83, -51, -53, -119, 99, -10, -69, -47, 51, -44, -125, 7, -93, -46, -13, 115, -60, -79, 109, -26, -10, 77, 32, 74, -107, 102, 72, 69, 84, -118, 28, 40, -52, 89, 0, 52, 122, 84, 79, 81, -114, -13, 42, 28, -57, 41, 40, -21, 56, 115, -71, -116, -123, 95, 20, 49, 38, -100, 35, -24, 58, -104, 21, 1, -8, 122, -92, -121, -12, 97, -85, 12, -30, 103, 33, 29, 111, -8, -72, 55, -58, -115, -90, -128, 8, -21, 11, -73, -99, 62, 16, 38, 122, -18, 93, 93, 36, 3, -117, -76, -14, -49, 46, -98, -85, -53, 3, 50, 117, -50, -72, 93, 5, 112, -101, -97, -114 ]
The opinion of the court was delivered by Valentine, J.: This action was originally commenced in a justice’s court. The plaintiff filed a bill of particulars therein, claiming $25 as damages for a cow alleged to have been killed by the defendant railroad company, and. $25 as attorney-fees for the prosecution of the action. A summons was issued with the following indorsement thereon, to-wit: “If defendant fails to appear, plaintiff claims judgment the sum of $25, and costs of suit, and an attorney-fee of $25.” This indorsement was made in pursuance of that provision in the justice’s act which reads as follows: “There shall be indorsed on the writ the amount for which the plaintiff will take judgment if the defendant fail to appear. If the defendant fail to appear, judgment shall not be rendered for a larger amount and the costs.”—Gen. Stat. 777, §11; (id., page 641, §59.) At the time set for trial both parties appeared. The de fendant then procured a continuaneé of the case to a subsequent time. At this subsequent time the plaintiff appeared, but the defendant failed to make any appearance. Evidence was then introduced, and the justice rendered judgment in favor of the plaintiff and against the defendant for $25 damages, and $25 attorney-fees, and costs. Afterward the defendant appealed to the district court. In the district court the case came regularly on for trial. The plaintiff again appeared, but the defendant again made no appearance. A jury was impanneled, and evidence was introduced. The plaintiff then, with leave of the court, amended his bill of particulars so as to make the same conform to the facts proved. This amendment consisted merely in changing the claim of $25 for attorney-fees to $40 for attorney-fees. The jury, then upon said evidence, and said amended bill of particulars, rendered their verdict in favor of the plaintiff and against the defendant for $58.75 in the aggregate, but did not state how much of the same was for killing said cow, or how much thereof was for attorney-fees. But as the record shows that the plaintiff amended his bill of particulars so as to make the same conform to the facts proved, and so also as to make the amount of his claim for attorney-fees $40, instead of $25, therefore $40 of the amount for which the jury rendered their verdict must have been for attorney-fees, and the balance of said amount, to-wit, $18.75, must have been for damages for killing said cow. The court below rendered judgment in favor of the plaintiff and against the defendant for said amount of $58.75, and the defendant now brings the case to this court for review. We think the court below committed error in permitting the plaintiff to amend his said bill of particulars in the absence of the defendant and its counsel, and without any notice to either. (Alvey v. Wilson, 9 Kas.“ 401.) The amendment in this case operated as a violation of the spirit if not the letter of said section 59 of the civil code, and said section 11 of the justices code. The defendant made no appearance at the time of the trial; and yet the plaintiff by virtue of this amendment took judgment for a greater amount than was indorsed on his summons. Aside from the foregoing sections such an amendment would hardly be proper. It would be a very dangerous practice that would allow parties to amend their pleadings in material respects in the absence of the adverse party, and without any notice to such adverse party.' If the adverse party is present at the time the amendment is made, of course he receives notice; but if he is absent, then before the amendment should be made, or at least before it should be acted upon, notice thereof should be specially served upon the adverse party. It is clear, under the code, that a plaintiff could not amend his petition at any time before the answer is filed, whether the time for filing the answer has yet expired, or not, without serving a copy of the amendment upon the defendant. (Gen. Stat. 654, § 136.) And the plaintiff certainly has no greater right to amend his petition or pleading after the answer is filed, than before. In the present case, no answer or pleading of any kind was filed by the defendant. Indeed, no pleading, of any kind was filed by either party except said bill of particulars and amended bill of particulars. It was not necessary however for the defendant' to file any pleading; for, as we have before stated, the action was commenced in a justice’s court. In a justice’s court a bill of particulars can be amended only “ when, by such amendment, substantial justice will be promoted.” (Gen. Stat. 791, §74.) And in the district court, pleadings can be amended only as follows: “The court may before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding,” etc. (Gen. Stat. 655, §139.) Within the limitations above mentioned the district court may allow a party to amend his pleading, and may allow him to amend so as to “conform the pleading * * * to the facts proved.” This the district court may do under said section 139 of the civil code. But we do not think that the district court has authority to allow any pleading to be amended except within the foregoing rules. Before au amendment of any pleading should be allowed it should tend to promote justice; it should be in furtherance of justice, and should be made only on proper terms. Now it can hardly be claimed in any case that a material amendment of a pleading, made in the absence of the adverse party, and without any notice to him, would be in furtherance of justice, or would tend to promote justice. It would hardly tend to promote' justice for a party who has set forth one statement of facts, or made one claim in his pleading, to be allowed, after he finds that the other party is absent, and without notice to such other party, to set forth another statement of facts, or make another and different claim in his pleading. It would hardly be fair for a party who has notified the other party by his pleading that he claimed $25 as attorney-fees, afterward, in the absence of the other party, and without giving such other party any notice, to so amend his pleading as to claim $40 as attorney-fees, and take judgment for that amount. Every person should have his day in court. Every person should have an opportunity of litigating the exact matter or claim upon which the judgment affecting his rights is finally rendered. But if one party may, in the absence of and without notice to the other party,‘amend his pleading in a material respect, and take judgment thereon, then he may set up a new claim in his pleading and obtain judgment thereon without the other party ever having any opportunity to dispute or to litigate such claim. This would certainly not be the way that justice should be administered, and it is not the way that justice is usually administered. The judgment of the court below will be reversed, and cause remanded for further proceedings. All the Justices concurring.	[ -14, -20, -12, -19, 41, 32, 34, -104, 65, -93, -74, -45, -23, 66, 20, 101, -10, 43, 85, 107, 92, -125, 7, 98, -69, -45, -111, -43, -79, 111, -26, -33, 77, 48, 66, -43, -26, -54, -63, 84, -50, 12, -87, -19, -21, 0, 48, 121, 18, 3, 49, -114, -29, 46, 56, 67, 41, 40, 123, 37, -128, -7, -82, -123, 31, 22, -79, 102, 30, 7, 90, 30, -104, 61, 1, -7, 122, -74, -122, 84, 33, -71, 8, 102, 103, -111, 37, 75, -8, -120, 38, 94, -113, -121, 16, 24, 75, 12, -74, -99, 125, 16, -121, 90, -3, -35, -99, 36, 3, -54, -106, -77, -113, 54, -100, 83, -61, -89, 16, 97, -63, -70, 92, 69, 88, -109, -49, -98 ]
The opinion of the court was delivered by Valentine, J.: This was an action brought by the German Savings Bank of Leavenworth, against Henry W. Wulfekuhler, for the sum of $2,100, alleged to have been obtained wrongfully from the bank by the said Wulfelcuhler. Judgment was rendered in the court below in favor of the defendant, and the bank now brings the case to this court. The principal facts of the case are as follows: The bank was organized under the laws of the state of Kansas; the defendant was one of the original incorporators, and a subscriber for 100 shares of the capital-stock of the bank; each share was for $100. He paid two assessments on said shares—each assessment being ten per cent, of the amount—and received two receipts therefor, each receipt being for $1,000. No certificates of stock were ever issued to him; and these receipts were the only evidences of his ownership of said stock which he ever held. The books of the bank however, furnished other and sufficient evidence of his ownership of said stock. He was a director of the bank, and also its vice-president, during the occurrence of all the following transactions, although at the time of said occurrence he was sick, and did not take any active part in the direction or management of the business of the bank. Also, during the same time he and his brother, Fred, Wulfekuhler, were partners carrying on a wholesale grocery business under the firm name of Rohlfing & Co. Said bank stock really belonged to this firm, although it was purchased and held in the name of the defendant, Henry W. Wulfekuhler. On the 4th of September 1873, and for some time previously, the bank was in an embarrassed condition. On that day, Fred. Wulfekuhler sold said bank stock to Henry M. Herman. The defendant indorsed his name on said receipts, and Fred. Wulfekuhler delivered the same to Herman; and Herman, in return, drew a check on said bank in favor of Rohlfing & Co. for $2,100, and delivered the same to Fred. Wulfekuhler. Herman was at-that time, and had been for several months previously, owing the bank on an overdrawn account; and the president of the bank had only a few days previously instructed both the cashier and the assistant-cashier of the bank not to honor any more of Herman’s checks. Herman delivered said receipts to the cashier of the bank, and on the next day, September 5th, obtained a credit therefor for $2,100, to be entered in his favor on the books of the bank. Herman and the cashier considered this transaction as a sale of said stock to the bank, but the stock was never transferred on the books of the bank as required by statute, (Gen. Stat. 197, § 27,) and also as required by the by-laws of the bank; but the stock still continued to remain on the books of the bank, in the name of the defendant. Neither does it appear that the cashier had any authority to purchase said stock. Also, on that same day, (September 5th,) the book-keeper of Rohlfing & Co. took said check of Herman’s to the bank, and the cashier gave to Rohlfing & Co. a credit therefor of $2,100, and charged Herman with a like amount. Eohlfing & Co. (or in other words, the defendant and his brother Ered.,) afterward, but not for some days thereafter, drew out of the bank said $2,100, with which they had been credited on Herman’s check. On September 17th the bank, on account of financial embarrassment, closed business. On September 18th the president of the bank tendered said receipts to the defendant, and demanded that the defendant should pay back to the bank said $2,100, but the defendant declined to do so, and then the bank commenced this action to recover said amount. The bank was reopened for business on 29th September 1873. The only question necessary to be now considered is, whether this action can be maintained upon the foregoing facts, and the law of the case. Now for the purposes of the case, we shall assume that the defendant acted in the best of faith in all the foregoing transactions; that the transaction with Herman was intended to be a bona fide sale of the defendant’s stock to Herman; that in fact the defendant and his brother did not know of the embarrassed condition of said bank; that they did not know of the condition of Herman’s account with the bank; that they did not know that Herman’s check was not good; that they did not know anything concerning the transactions between Herman and the cashier; that they did not know, when they received said money from the bank on Herman’s check, that they received it in consideration of a credit given to Herman for said stock receipts; and that in fact they believed, when they received said money, that they were simply receiving money from the bank which Herman had previously deposited with the bank; and assuming all these things, (which are assumptions in favor of the defendant and against the plaintiff,) then can the plaintiff recover? We think it can. For while we assume, as a matter of fact, that the defendant knew nothing of the condition or management of said bank, and nothing of the condition of Herman’s account with the bank, yet still as a matter of law we think we must presume that he knew all about these matters. He was a director. and the vice-president of the bank, and it was his duty to have such knowledge, and therefore the law will conclusively presume that he had it. Merchants’ Bank v. Rudolf, 5 Neb. 527; United Society of Shakers v. Underwood, 9 Bush. (Ky.) 609; Morse on Banks and Banking, 90, et seq., 97, et seq., and 115. He cannot now, as against the interests of the bank and its stockholders, and perhaps its creditors, be allowed to plead ignorance and innocence, and thereby profit by his own want of knowledge, and by his own failure to do his duty as an officer of the bank. Such would be against both morals and law. Of course, we do not hold that a director is bound to know everything that transpires in a bank, and at the very time when it occurs. But we do hold that a director, having personal and private dealings with his bank, is bound to know (so far as the same affects his said personal dealings) the general condition and management of his bank, and everything of importance that occurs therein, either at time it occurs, or soon thereafter. In the present case, the defendant was bound to know when he received Herman’s check, and when he obtained the credit thereon, that the bank was embarrassed, and that Herman had no funds in the bank. And he was bound to know when he drew the money out of the bank that Herman was-still owing the bank, and that the said credit to Herman of' $2,100 was merely for said stock receipts. Said -stock receipts we suppose really belonged to the firm of Rohlfing & Co., which was composed of the defendant and his brother Fred.; and the said money was drawn from the bank by the-firm, and not merely by the defendant. But this makes no-difference; for each member of the firm was bound to take notice of all of which the other had notice, or was bound to-take notice; (Merchants’ Bank v. Rudolf, supra;) and each member of the firm is liable in a separate action for all that the firm might be held to be liable. And as the firm obtained said money from the bank without any legal consideration therefor, as we shall presently see, the bank may recover it back. In Pennsylvania it has been held that it is a fraud upon a bank for the holder of a check to present the same to the bank and receive a credit therefor, when he knows that the drawer of the check has no funds in the bank with which to meet it. (Peterson v. Union National Bank, 52 Penn. St. 206.) The supposed sale of said stock from Herman to the bank was void. The cashier had no authority from the bank, or from any one else, to purchase it; and no one had any power to give him any such authority. A bank cannot purchase its own stock, except in some few cases for the purpose of securing some previously-existing debt. There is no law that attempts to give a bank any such power. And the purchasing by a bank of its own stock is not one of the objects for which banks are created, and is not legitimate banking business. Eor a bank to use its funds in the purchase of stock, is to withdraw that much of its capital from legitimate banking business; and to purchase its own stock, is in effect a withdrawal of that much of its stock from actual existence, and in that way the bank might reduce the amount of its capital stock below the amount required by law, (to-wit, $50,000; Gen. Stat. 225, §128,) and might also impair or even destroy all security given by law to the creditors of the bank. The law provides in effect that not only the bank, with all its property, shall be liable for its debts, but also that each stockholder in the bank to the amount of his stock, shall also be held liable. (Const., art. 12, §2; Gen. Stat. 198, §32.) But if a bank may purchase in all its stock, and own it itself, then where would be the security to the creditors of the bank, except in the bank itself? They could not, after exhausting the property of the bank, find any 'stockholders to sue. The law never contemplated any such a thing. But the law not only fails to authorize a bank to purchase in its own stock, but in effect it prohibits such a thing. Section 26 of the act authorizing the creation of banks provides, that “no corporation created under the provisions of this act shall employ its stock, means, assets, or other property, directly or indirectly, for any other purpose whatever, than to accomplish the legitimate objects of its creation.” (Gen. Stat. 197.) . Now as the defendant, or rather himself and his brother as partners, received said money from the bank, without the bank ever receiving any consideration therefor, and as the defendant was at the time a director and the vice-president of the bank, and is therefore conclusively presumed to have known all the facts, the bank may recover the money back from the defendant. The acts of the cashier cannot estop the bank as against the defendant, who is a director, and the vice-president of the bank. Such officers cannot be allowed to wrongfully use the funds of the bank, and then plead that the same was allowed by either the one or the other of such officers. They make themselves liable by so using the funds of the bank. The court below tried this case upon the theory that the defendant, as a director and vice-president, was not bound to know the condition of the bank, and the condition of Herman’s account, and was not bound to know when he and his partner drew said money out of said bank that they drew the same out of the bank without any consideration to the bank; and for this reason the court erred in instructing the jury, and especially erred in not granting a new trial to the plaintiff. The judgment of the court will therefore be reversed, and cause remanded for a new trial. Horton, O. J., concurring.	[ -16, -18, -8, -52, 10, -32, 42, -102, 72, -124, 37, 115, -55, -40, 1, 125, -10, 29, -12, 104, -10, -73, 23, -86, -62, -14, -39, -123, -79, 75, -76, 87, 13, 34, 74, -99, -26, -64, 69, 92, -114, 4, 40, -48, -33, 64, 52, 127, 118, 74, 113, 46, -13, 42, 30, 90, 105, 46, -23, 121, 64, -15, -85, -123, 125, 19, -125, 2, -48, 71, 64, -82, -48, 119, 7, -23, 90, -90, -122, 92, 35, -69, 45, 102, 103, 17, 37, -21, 60, -120, 46, -5, -99, -89, -76, 88, 35, 41, 62, -97, 124, 18, 6, -4, -22, 29, 27, 108, 21, -37, -90, -110, -113, 116, -102, -101, -13, -105, 48, 97, -52, 32, 92, 83, 58, -101, -50, -11 ]
The opinion of the court was delivered by Horton, C. J.: On the 6th of December 1872, the defendants in error executed and delivered-to plaintiff in error the following instrument of writing, to-wit: “$1,500. December 6th, 1872. “We promise to pay the Saint Joseph and Kansas Loan- and-Building Company, or order, fifteen hundred dollars, for value received, with interest at ten per cent, per annum, said interest payable monthly on the first Monday of each month, according to the rules and regulations of the said Saint Joseph and Kansas Loan-and-Building Company. Said interest and principal is payable at the office of said company in the city of Saint Joseph, Mo. Appraisement waived. ' “ William Thompson. “Mary J. Thompson.” And at the same time also executed and delivered to the company a mortgage on their homestead, consisting of forty acres of land, situated in Marshall county, to secure the said note. The office of the company was at St. Joseph, Mo.; and the articles of association of the company, which was an incorporation under the laws of Kansas and Missouri, state that the object of the company was to give to its members, through their savings, an easy way to discharge incumbrances and to build homes. Its manner of business was this: Whenever the funds of the company on hand should amount to the sum of five hundred dollars, or its multiple, (the full-paid value of a single share or shares,) it might be offered in open meeting to the members, and it should be awarded to that member paying the highest premium therefor who would agree to pay ten per cent, per annum interest thereon, payable monthly, until the shares of -the stock were sold, and the company ceased to exist. The members receiving a loan, before drawing the money, were required to give to the company security by a deed of trust or mortgage on unincumbered real estate. The shares upon which loans were made were called redeemed shares, their ultimate value having been advanced by the company in the loan thereon. The member receiving the loan continued to pay five dollars each month upon the shares so redeemed, until the company was ready to dissolve, in addition to the interest of ten per cent, on the note and mortgage given to secure the loan. So soon as the monthly installments, and the accufnulations of interest and profits from all sources, should amount to the sum of $500 per share, the company was to be at an end, and the assets, after the debts of the company were paid, were to be equally divided among the shareholders in proportion to the unredeemed shares held by them. The note and mortgage were executed in Marshall county, in this state, and there was sent to the defendants in error from the office of the company at Saint Joseph, by express, the sum of $765 on such note and mortgage, and the sum of one dollar to pay for the recording of the mortgage. Neither of the defendants in error received any other or further sum of money from the company on the note or mortgage. After the execution of the note and mortgage, the defendants paid to the company prior to April 1875, on account of said note, the sum of $660, and then becoming dissatisfied with the company, on being informed by an officer of the same that they had no interest in the profits of the corporation and were not entitled to a share, as the loan was their benefits, they tendered to the company $242 as the balance of the money due on the note from them to the company and demanded a return of their note and mortgage. The company refused to accept the said $242 as payment of the said note, and claimed that the balance due exceeded the sum of $600. Thereupon the defendants in error commenced their action in the district court of Marshall county to compel the loan- and-building company to accept the said $242 in full satisfaction of the note and mortgage. The company in its answer to the petition alleged, that William Thompson, one of the defendants in error, was at the time of the execution of the note and mortgage the owner and holder of three shares of the capital-stock of such company, numbered 359, 360, and 361; that he was a member of such company, and was liable to all its rules and regulations as contained in the constitution and by-laws, and that in addition to what had been paid by the defendants in error on the note there was due the further sum of $158 for monthly dues, interest on loan, and fines for non-payment, and also the sum of $764 balance on note and mortgage, and asked for judgment for said sums with attorneys-fees and costs. On the trial judgment was rendered in favor of defendants in error, and plaintiff’ in error brings the action here, and asks this court to reverse the judgment of the court below and to remand the case to said court with instructions to enter judgment for plaintiff in error for a foreclosure and sale of the mortgaged premises for the various sums claimed due by the company. The special findings of fact of the district court were as follows: 1st.-On the 6th of December 1872 the plaintiffs executed the note and mortgage alleged in plaintiffs’ petition. 2d .-The amount of money loaned by defendant to plaintiffs was seven hundred and sixty-five dollars. 3d.-The land described in plaintiffs’ petition upon which the mortgage was given was, at'the time of the execution of the note and mortgage, and is now, the homestead of plaintiffs. 4th.—The title to the land desci’ibed in plaintiffs’ petition was at the time of the execution of the note and mortgage in Mary Thompson, one of the plaintiffs, and wife of the other plaintiff, William Thompson. 5th.-The plaintiff William Thompson has paid the defendant since the execution of the note and mortgage described in plaintiffs’ petition the aggregate sum of six hundred and sixty dollars—said sum being the amount of twenty-four several payments of $27.50 each—twelve of said payments being made in the year 1873, and at the respective dates, to-wit: January 6th, February 3d, March 3d, April 1st, May 1st, June 1st, July 1st, August 1st, September 1st, October 6th, November 3d, and December 1st; and the remaining twelve' of said payments being made in the year 1874, and at the respective dates, to-wit: January 1st, February 1st, March 1st, April 7th, May 4th, June 1st, July 1st, August 11th, September 7th, October 1st, November 2d, and December 9th. 6th.-On the 15th of April 1875, and before the commencement of this suit, plaintiffs tendered to defendant two hun dred and forty-two dollars, as alleged in plaintiffs’ petition, in full satisfaction of said note and mortgage, and have now brought the same into court. 7th.-Plaintiff William Thompson never signed the constitution or by-laws of the defendant. 8th.-Plaintiff William Thompson never was a member of the defendant company. 9th.-Plaintiff Mary J. Thompson never was a member of the defendant company, and never signed the constitution or by-laws of defendant. lOth.-Plaintiff William Thompson never bid for shares, or authorized any person to bid for shares, in the defendant company. llth.-Plaintiff Mary J. Thompson never bid for shares, or authorized any person to bid for her for shares, in the defendant company. 12th.-The amount due the defendant on the note and mortgage for the amount of money actually loaned is the sum of two hundred and forty-two dollars. 14th.-The pretended sale of shares numbered 359, 360, and 361 of stock in the defendant company, to plaintiff William Thompson, was a device and an artifice by which it was intended to evade the usury laws of this state. 15th.-No shares were ever sold in any manner by defendant to plaintiff Mary J. Thompson. Among others,'the following conclusions of law were also filed: “That the note and mortgage described in plaintiffs’ petition are usurious; that defendant be adjudged to receive the sum of $242 in full satisfaction of the said note and mortgage; that the note and mortgage be canceled of record; and that defendant be adjudged to pay the costs of this action.” The contract in this case is treated by all the parties as a Kansas contract, and the rights and powers of the plaintiff in error as subject to the statutes of this state. Contracts for the borrowing of money from building-and-loan associations in Kansas are only exempt from the provisions of the usury or interest laws of the state when members of such associations are parties thereto. It was never intended that these corporations, organized as this one was for the purpose of giving to its members through their, savings an easy way to discharge incumbrances and to build homes, should Joan their funds to others than their own members, or that if they did attempt the exercise of such authority that they could disregard the wise and wholesome provisions of the statute regulating the rate of interest collectible by law. It was never intended that these corporations, seeking and obtaining privileges from the state as useful and beneficial associations for the comparatively poor and needy, should blossom out as loan agencies and banking institutions, without limit as to the rate of interest they could receive and collect. Neither the letter nor the spirit of the laws relating to these corporations would authorize such a construction. (Sec. 5, clause 27, of our corporation act, Gen. Stat. 192; Laws of 1869, ch. 5, p. 37; Laws of 1870, ch. 43, p. 92.) In our view, the only questions presented to us are, whether the defendants in error were members of the loan-and-building company, or whether they were estopped by their acts from denying such membership. It is conceded that the wife, Mary J. Thompson, was never a member of its corporation. About all she had to do with the transaction was to sign the note and mortgage. Neither the note nor mortgage contains any recitals as to the membership of either defendant in error in the company, and upon a review of all the evidence we find no valid reason to set aside the findings of fact of the court; and as the findings are sustained by some evidence, the judgment based thereon is not erroneous. William Thompson did not comply with the constitution by signing it, nor did he ever subscribe for any shares of stock on the books of the company; and the secretary of the company testified that no shares of stock were ever issued to him. Neither is it claimed that any other member of the corporation transferred to said Thompson under the rules and regulations of the constitution and by-laws, by any written transfer or assignment, any share; nor did said Thompson file with the company, as required of all transferees of stock, or shares of stock, any written acceptance of any share, nor otherwise sign any writing showing "that he was a member of the com pany. It is alleged however by the counsel for plaintiff in error, that as said Thompson made a written application to the company to redeem certain shares when he applied for the loan, and afterward received a pass-book with a copy of the constitution and by-laws containing the form of a certificate for three shares of stock, and as he was furnished by the company with certain blank forms of assignment and transfer of shares, and executed the note and mortgage, and paid various sums of money to the company, he is estopped from denying his membership in the same. We think otherwise, and our reasons are as follows: Before the execution of the note and mortgage, the application, which was defective in form, was returned to Thompson to be corrected and properly certified, and then to be sent back to the office of the company. This Thompson retained, and never gave back. Whether the so-called blank transfers and assignments were ever signed or not, is immaterial, because they were never delivered to the company, and were the same as if never executed. The pass-book was not obtained until after the loan, and the so-called certificate of stock therein, had the numbers of the shares of stock (now claimed to have been bought by the company for Thompson,) carefully and thoroughly erased and crossed out. Then again, after a loan was made, the party thus redeeming a share or shares had no longer any control of the same, as they reverted to the com'pany. So all of these matters, instead of proving Thompson a member of the company by ownership of any shares, only proved the opposite. We refer now to the only evidence submitted upon which, in our opinion, any serious question can be made as to the findings of the court below on the membership of Thompson in the company. McLean, the secretary, testified on the part of the company, that the note and mortgage were given for the proceeds of shares, 359, 360 and 361; that these three shares were put up at auction and sold to William Thompson at a meeting of the company in St. Joseph, Mo. on the 2d of December 1872; that these shares were owned by the firm of Nicely & Co., a firm com posed of the president and secretary and three directors of the company; that the company bought the shares for Thompson from Nicely & Co. for $223.50; that at the sale for the loans to Thompson there was paid $165 premium on each share, and the note of $1,500 was made up of $495 paid as premiums for the loan, $223.50 paid Nicely & Co. for the shares, $15 paid for the December dues for 1872, and $766.50 sent to Thompson. Witness also stated that the company transferred the three shares of stock No. 359, 360 and 361 on the transfer-book from Nicely & Co. to William Thompson on 6th December 1872, and presented the transfer-book to show the transfer, and also the minute-book to show the bid for the loan on December 2d. From the minute-book the only business transacted on said December 2d, was as follows: “The company met at the office of the company in St. Joseph, Mo., and the following shares of stock were sold: One share to William Thompson, Blue Rapids,............$165.00 “ “ “ William Thompson, “ “ ............$165.00 “ “ “ William Thompson, “ “ ............$165.00 “On motion adjourned, to meet January 6th, 1873. “F. L. McLean, Sec’y.” It is admitted that William Thompson was never at St. Joseph to see anything about the loan, or any shares in the company; and said secretary stated he did not recollect who bid off the shares for Thompson, but that a letter was received from a Mr. Chandler, who was a stockholder in the company, and a neighbor of Mr. Thompson, and with whom Thompson consulted about getting some money from the company, asking that three shares of stock he purchased for Mr. Thompson, and that the shares be bid off for him at the next meeting. It was not shown that Nicely & Co. ever transferred any shares to Thompson, or had any knowledge of the transfer made on the transfer-book, except the fact that said firm of Nicely & Co. were really the loan-and-building company, or rather the officers of such company. It does not appear that either of the defendants in error ever heard of the firm of Nicely & Co. prior to the taking of evidence in the case for trial, or had any knowledge at the institution of their suit of the said transfer of stock on the books of the company. Upon all the evidence the court below found that William Thompson never bid for shares or authorized any persons to bid for shares in the said company and that the pretended sale of said shares 359, 360 and 361 was a device and an artifice by which it was intended to evade the usury laws of this state. Even admitting that the preponderance of the evidence is against the conclusion reached by the court, we cannot disturb this finding in the face of the direct evidence of said Thompson that he never purchased any shares in the corporation, never bid off any shares at any meeting, and never authorized any person to bid off any shares for him. The Thompsons seem to have acted in good faith in all the transactions, and the equities of the case are certainly with them. They were ignorant of the operations of the association at the time they obtained the money. The loan was made in violation of the regulations of the constitution and by-laws of the corporation; and so soon as the defendants in error understood the claim of plaintiff in error against them a tender was made to the company of a sufficient sum to repay the loan with interest thereon at the rate of twelve per cent, per annum from the date they received it. 'We do not see that the corporation has suffered any loss at the hands of the makers of the note and mortgage, as the money loaned has been paid or tendered with the highest rate of interest obtainable under the laws of this state, and the shares of stock claimed to have been purchased from Nicely & Co. have never been delivered to the defendants in error. Neither was it shown that such shares have depreciated in value. Under the circumstances, no court of equity would be justified in giving a construction to the contract of the parties by which in addition to the sums already paid and tendered the excessive fines and demands still claimed as due by the plaintiff in error shall be placed in judgment and made a lien upon the homestead of the defendants, unless the pro visions of the writings executed by them, or their conduct in the premises, imperatively demanded such an interpretation. Upon the trial the court admitted some irrelevant evidence as to immaterial matters, which on the objections thereto should have been .rejected. But this frequently occurs in the trial of cases to the court without the intervention of a jury; and as the findings of fact in the cause are supported by valid testimony, and as in our examination of the testimony supporting the findings we have omitted all considerations of the improper evidence received, the error complained of as to the admission of certain objectionable testimony is an immaterial one, and no ground for a reversal of the judgment. The note, upon its face, is payable at once, unless otherwise provided by the rules and regulations of the corporation. As' neither of the defendants in error, under the findings of the court, was bound by these conditions, not being a members thereof, the plaintiff in error should have surrendered up the note and mortgage when the balance due thereon was tendered to its officers. The judgment of the district court will be affirmed. All the Justices concurring.	[ -16, 110, -72, -52, 26, -64, 42, -102, 121, -96, -92, 83, -55, -58, 5, 111, 102, 29, -107, 106, -58, -77, 55, 121, -46, -13, -9, -51, -79, 76, -28, -41, 72, 52, 10, 29, -26, -62, 85, 84, -114, -123, 40, -64, 121, 40, 52, 59, 84, 74, 81, 46, -13, 42, 28, 74, 73, 44, 107, 45, -79, -16, -101, -57, 95, 23, 19, 96, -100, 7, -24, 62, -104, 21, 1, -24, 91, -90, -122, 116, 119, -119, 44, 38, 98, 18, -75, -17, 120, -104, 14, -10, -99, -89, -80, 89, 66, 72, -66, -99, 124, 86, 7, -10, -26, 5, 25, 108, 5, -117, -16, -77, -113, 124, -102, 3, -5, -89, 32, 97, -52, 32, 89, 103, 58, 27, -114, -7 ]
The opinion of the court was delivered by Horton, C. J.: On the 11th of November 1875 an action was commenced in the court below by Lewis Dunmeyer against the K. P. Rly. Co., to recover-damages because, by a deed dated 12th November 1870 the railway company sold and conveyed to the said Dunmeyer certain real estate, described as the W. \ of the S.E. -J, and the E. J of the S. W. f of section 25, in township 13 south, range 2 west of 6th P. M., Kansas, and covenanted therein to warrant and defend “the possession of the said premises” to the said Dunmeyer, but after the execution of said deed the railway company did not and would not “defend said premises and the possession thereof, but on the contrary, said company had not at the date of such deed a good title, as the paramount title thereof was in the United States, .by virtue of which paramount title said Dunmeyer was afterward, on the 16th of October 1871, ousted and dispossessed of the said premises by due course of law.” The consideration of the deed was $200. The case was tried to a jury, but after the introduction of all the evidence, the court refused -to give to the jury any instructions, and directed them to find a verdict for the plaintiff for $200, with interest from the date of the deed from the railway company to Dunmeyer. Judgment was rendered for $277.72 for Dunmeyer, and various errors are assigned as grounds for a reversal of the same. We need only notice two of them. It is alleged that there was a fatal variance between the allegations of the petition and the proof to support the same, and that said Dunmeyer proved no eviction. Upon these points, the evidence was substantially as follows: A patent was offered on the part of the plaintiff in the court below to the premises in controversy from the United States to one G. B. Dunmeyer, of the date of 25th March 1875. After which Lewis Dunmeyer testified as follows: “I am the plaintiff in this action. I own part of the land in controversy — one eighty of it; Samuel Crowell owns the other eighty. I bought it from Grabe Dunmeyer last spring. It is part of the same land that I had bought before from the railroad company. I hold possession under my deed from Grabe, and not under my deed from the railroad company.” Ch'oss-Examination: “Gabe Dunmeyer is my son. I paid him about $900 for this land, counting interest and all. Don’t think I paid him in money; it was the same as money; I held notes of his for money that I had lent him, and I gave him those notes. Mr. Geis and I bought this land together, of Mr. Miller. * * * But Mr. Geis acted for me. Afterward Gabe bought Mr. Geis’ share. I had money belonging to Gabe, and paid Geis for him. This money that I paid to Geis is no part of the consideration of the deed from Gabe to me. When the deed was made to me by the railway company, I was in Pennsylvania. Gabe came out and went onto this land the spring after the deed to me was made. The way Gabe came to go on this land, Gabe had determined to go to Kansas, and had no place to go to, -and I told him that Mr. Geis and I had, bought it, and if Mr. Geis was willing, he could go out and live on it, and he did so; there was a house on it. When I bought I took possession. I never broke any. I was out here every year. This land is about twenty rods from the Kansas Pacific railroad track. When I bought the eighty acres of Gabe I bought his interest also in the deed from the Kansas Pacific Railway Company, or his claim against the said company, on account of the failure of title, and I then settled with him for it.” And G. B. Dunmeyer testified as follows: “I am the one who got the patent for the land. I contested it with the railroad company before the land-office here. C. A. Hiller appeared in that contest as attorney 'for the railroad company. I was told it was government land, at the land-office, and other parties were talking of taking it, and I went and homesteaded it to save it. I paid $200 for the land, and the fees, $19.50, at the land-office. I mean, this is what I paid the government to get the land. When I sold the eighty acres to my father, Lewis Dunmeyer, I also sold him in the trade, my right against the Kansas Pacific Railway Company in the deed from the Railway Company. They had deeded the land to my father, but I owned one-half of the land, and paid one-half of the money for the land. There was no agreement or understanding between me and my father that I should go on and homestead this land in order to defraud the railroad company. I homesteaded because I was informed at the land-office that it was government land, and the railroad company had no right to it. I homesteaded it to save the land. * * * I sold half of this land to my father, Lewis Dunmeyer, over a year ago. He paid me for it in notes of mine that he held, for money borrowed; think he paid me some money. I bought half of this land from John Geis, before I made homestead entry; paid him $560 for it. Lewis Dunmeyer paid it for me. John Geis told me he would deed the whole of it to my father, and he would make a deed to me, but never did. Think my father paid me $460, or $560, for the eighty .he bought of me. The money he paid to John Geis for me was no part of this consideration. When I first went onto this land Mr. Geis and my father told me that they had bought it, and that there was a house on it, and I could go and live in it, which I did.' I told Mr. Geis if I liked it I would buy it from him, and afterward did so.” This evidence does not sustain the allegation in the petition, that said Lewis Dunmeyer was ousted and dispossessed of the premises by due course of law. The words, “ by due course of law,” are synonymous with “ due process. of law,” or, “the law of the land;” and the general definition thereof is, “law in its regular course of administration, through courts of justice;” and, while not always necessarily confined to judicial proceedings, (as, for instance, the collection of taxes is held to be within the phrase “ by due process of law,”) yet these words have such a signification when used to designate the kind of an eviction, or ouster, from real estate by which a party is dispossessed, as to preclude thereunder proof of a constructive eviction resulting from the purchase of a paramount title when hostilely asserted by the party holding it. As the petition alleged an ouster by due course of law, and as an issue was joined thereon, the evidence should have supported the allegation. It does not. An eviction, or ouster, was not pleaded in general terms, but a particular kind of an eviction was alleged, and the plaintiff in the court below should have been confined in his testimony to his pleading. He was not authorized to prove a different eviction. A party cannot allege one thing, and, to support the same, prove a state of facts dissimilar thereto, and of which the opposing pai'ty had no notice. The particular allegation as to the ouster by due course of law was not sustained; and the court erred in its rulings as to the admission of evidence, and the rendition of the judgment. Garvey v. Fowler, 4 Sandf. 665; U. P. Rly. Co. v. Young, 8 Kas. 658. The eviction proved in the case was sufficient, if the pleadings had authorized the introduction of the evidence. Under the railway title, Lewis and G. B. Dunmeyer were joint-owners of the premises. After G. B. Dunmeyer had gone into actual possession, he was informed that it was government land, and that other parties were talking of taking it. He homesteaded it, to save the land. The railway company had no title to the premises, and never had; they were public lands, subject to homestead-entry and settlement. G. B. Dunmeyer complied with the provisions of the United States laws, and obtained the patent. While thus in possession under title derived direct from the government, defendant in error purchased of said G. B. Dunmeyer the outstanding paramount title. While it is true, that under the covenant of warranty, as usually expressed, a purchaser cannot as a general rule buy in any paramount claim, and elect to consider himself evicted to the extent of the purchase-money of such claim, yet where the title to the land in controversy is in the United States, and liable to entry and settlement under the provisions of the homestead law, that of itself is such a hostile assertion of the paramount title as would authorize the purchaser to voluntarily submit to it. McGary v. Hastings, 39 Cal. 360. We have considered the facts tending to prove a constructive eviction to prevent this point again being a subject of difference in event of an amendment to the petition and a new trial. The judgment of the district court will be reversed, and case remanded for a new trial. All the Justices concurring.	[ -12, 110, -4, -83, 26, -32, 58, -104, 105, -79, -90, 87, 73, -40, 16, 61, 114, 45, -47, 106, -58, -105, 70, -29, -46, -77, -45, -51, -79, 72, -28, -57, 77, 48, 74, 21, -58, -64, -43, 28, -114, 4, -87, 72, -45, 64, 52, 123, 70, 74, 81, -70, -13, 42, 25, -61, 73, 44, -17, 21, -79, -7, -70, 87, 125, 22, 0, 4, -102, 3, 104, -102, -112, 21, 15, -20, 115, -90, -122, -12, 1, -103, 8, 102, 99, 33, 61, -17, -24, -104, 15, -15, -113, -25, -10, 88, 2, 8, -66, -103, 52, 16, 7, -2, -26, -124, 24, 124, 7, -53, -108, -125, 15, 62, -102, 1, -37, -85, 49, 96, -51, 32, 93, 103, 58, -101, -97, -68 ]
The opinion of the court was delivered by Horton, C. J.: The attorney-general, representing the state, objects to any consideration of this case upon the alleged errors, on the ground that the case is not properly before this court upon appeal, or otherwise; first, because no notice of appeal appears in the transcript; second, because the appeal was not taken within two years after the judgment was rendered. The first objection is fatal to the jurisdiction of this court; and however much we might desire to pass upon the questions presented by the counsel for the convict, we cannot, within the provisions of law, assume any authority over the judgment rendered in the district court. Sec. 285, criminal code, (Gen. Stat. 866,) is identical with section 268, Comp. Laws. 275; and said last section was fully considered and construed in Carr v. The State, 1 Kas. 331. In that case it was held, “the service of the notice of appeal on the clerk, and the appellee, or attorney, constitutes the appeal; and upon that alone the jurisdiction of this court to review the judgment and decision of the court below rests. It is therefore an important part of the record, and it should appear in the transcript filed, that this court may see and its records show it has jurisdiction.” See also, The State v. King, 1 Kas. 466; The State v. Brandon, 6 Kas. 243; The State v. Baird, 9 Kas. 60; The State v. Boyle, 10 Kas. 113; Neitzel v. City of Concordia, 14 Kas. 446. These authorities are decisive, upon the objection made by the learned attorney-general; and the proceedings in this case in this court must be dismissed. All the Justices concurring.	[ -80, -24, -35, -68, -86, -32, 58, -104, 89, -93, -84, 83, -83, -37, 4, 123, -13, 45, 116, 107, 70, -73, 119, -31, 54, -5, -110, -108, -77, -34, -10, -2, 76, -96, -54, 85, 102, 72, 71, -44, -50, -121, -87, -35, -47, 72, 48, 59, 26, 15, 113, 95, -29, 46, 24, -62, -23, 40, -39, -83, -56, -80, -118, 31, 95, 22, -93, 34, -100, 7, 120, 46, -104, 49, -128, -4, 113, -90, -122, 116, 111, -104, 13, 102, 98, 33, -20, -17, -88, -120, 15, 126, 29, -89, -104, 24, 107, 4, -74, -103, 53, 50, 43, -8, -29, 21, 19, 100, -128, -113, -112, -79, -49, 53, -110, 123, -13, 32, 48, 113, -123, -28, 93, 87, 49, 89, -98, -44 ]
The opinion of the court was delivered by Horton, C. J.: This case was originally commenced before a justice of the peace, under section 253 of the crimes act, (Gen. Stat. 373,) against John Campbell and two others. A. G. Jones was the prosecuting witness. The case was tried before the justice, and the defendant Campbell having been convicted, gave bond and took an appeal to the district court, where, after several continuances, the case was called for trial at the July term 1877. Campbell announced himself ready for trial. The county attorney having been of counsel for the defendant Campbell, the court appointed one J. C. Murray to prosecute on behalf of the state, who, with the consent of the prosecuting witness, Jones, and by leave of the court, entered a nolle prosequi over the objections of Campbell, and Campbell was thereupon discharged. The county attorney then filed a motion to tax the costs in said action to the prosecuting witness, for’the following reasons: “ 1st, That the action was dismissed by the state with the knowledge and consent of the prosecuting witness, when the defendant Campbell was present and demanding trial. 2d, That the prosecution was without probable cause. 3d, That the prosecution was malicious.” A copy of the motion was served on said prosecuting witness, Jones, and afterward the motion came on to be heard. The state appeared by the county attorney. The defendant Jones appeared by J. C. Murray and J. R. Goodin, his attorneys. A jury was waived, and the cause submitted to the court. The state offered to prove the truth of each and all the allegations contained in the motion. Jones, by his attorneys, objected to 'the introduction of any evidence in support of the motion, which objection the court sustained, and refused to allow the state to introduce any evidence, to which ruling of the court the state excepted, and reserved the point and question for the consideration of this court. Jones, by his attorneys, then moved the court to tax all the costs in the-action of The State v. Campbell, and the costs of the first motion to tax costs, to Allen county, which motion the court sustained, and ordered and adjudged that all the costs in the case of The State v. John Campbell, and the costs of the motion to tax the costs to the prosecuting witness, be taxed to and be paid by Allen county; to which motion and judgment of the court the state excepted, and then and there reserved the question of the authority of the court to tax said costs to Allen county, and the liability of said county to pay the same, for the consideration of this court. As to the first question reserved, we answer that the district court committed Ho error in refusing to hear the evidence on the motion of the county attorney to tax the costs in the action to the prosecuting witness. The prosecutor was not liable under any provision of the statute. This action was pending in the district court at the time of its dismissal, and section 13 of the act relating to fees, (Gen. Stat. 481,) has no application. That section relates to fees in proceedings before justices of the peace—not to actions in the district courts. Neither is the case presented to us within the letter of section 326 or section 327 of the criminal code, (Gen. Stat. 872,) to which we have been referred. The language of these provisions of the statute does not apply to this action, and we cannot extend them. (The State v. Menhart, 9 Kas. 98.) As to the second question reserved by the state, our response is, that the court below erred in taxing any of the costs to Allen county. Costs are unknown to the common law. They are given only by statute, and may be changed, or taken away, at the will of the legislature. As there is no statute author izing or requiring the payment of any costs in this case from the county treasury of Allen county, the district court exceeded its power and committed error in attempting to compel the county to pay the costs. The county was not liable for the same. This ^construction of our statutes may work injustice to officers and other parties who might be entitled equitably to have their fees paid by the county, Or the prosecutor, or in some way; but as we are not the law-making power, we are not at liberty to add to the statute, nor responsible for the omission to provide for the payment of the costs in such cases. This omission seems to have been intentional. Sections 311 and 312 of the criminal code of 1859, Comp. Laws 1862, p. 281, prescribed that the costs in criminal actions should be paid by the county in which the offense was committed, when the defendant was convicted and unable to pay them; and when the defendant was acquitted, the costs were to be paid by the county, unless the prosecutor was adjudged to pay them. Said section 312, relating to costs in cases of acquittal, was omitted in the revision of 1868, and no section of like import inserted in its place. But for the proviso in section 19 of the act relating to fees, (ch. 39, Gen. Stat. 483-4,) which restricts the operation of that section to cases in which there is a conviction, that section might have given sheriffs and clerks authority to obtain their fees of the county, when not paid by the defendant or the prosecuting witness. As said section 19 is thus limited, it cannot apply in this action, nor in cases of acquittals. The judgment of the district court will be reversed, and the case remanded with instructions to overrule the motion of Jones to tax the costs to Allen county. All the Justices concurring.	[ -12, -20, -68, -68, 106, -32, 42, -104, 8, 33, -10, 83, -23, -42, 1, 121, -93, 93, 84, 105, 70, -74, 51, 99, -70, -77, -15, -59, -80, -50, -90, -10, 76, 52, -54, -99, 102, 72, -121, -40, -122, -119, -87, -24, -14, 96, 52, 109, 118, 11, 113, 62, -9, 46, 20, -61, 105, 44, 89, 43, 88, -15, -118, 31, -49, 26, -77, -30, -102, 3, 58, 62, -104, 49, 64, -68, 115, -126, 2, -44, 77, -87, 9, 116, 98, 33, -3, -17, 104, -104, 55, 127, -99, 39, 80, 88, 26, 8, -73, -99, 126, 112, -121, -16, -25, 92, 17, 108, 4, -49, -106, -69, -49, 36, -106, 19, -13, 41, 48, 65, -123, 2, 93, 111, 115, -69, -34, -36 ]
The opinion of the court was delivered by Horton, C. J.: On January 18th 1876, Anna Eandal and B. M. Casey commenced their separate actions in replevin against Dickson, before a justice of the peace of Nemaha county, to obtain the possession of two calves, levied upon by Dickson, as constable, under an execution in his hands issued upon a judgment against J. H. Eandal in favor of Wolfley, Morris & Co. The calves were only worth $10 each. On the return-day of the two summonses the said Dickson appeared in each case before the justice and obtained an adjournment of the trials to February 1st. Upon judgments being rendered in the cases before the justice against plaintiff in error, he appealed both actions to the district court, and after the causes had been duly docketed there for trial, pe movetj the dismissal of the actions on the ground that the justice before whom they were tried had no jurisdiction, as sufficient bonds and affidavits were not filed with him at the commencement of the cases. The objections came too late, and the district court committed no error in overruling the motions. Haas v. Lees, 18 Kas. 449; Shuster v. Finan, ante, 115. After the motions to dismiss had been overruled, with the consent of all parties both cases were tried at the same time and to the same jury. Verdicts and judgments were again rendered against the plaintiff in error; and he now complains of the instructions given by the court, and of the refusal of the court to charge the jury as prayed for by'him. The instructions objected to were as follows: “ 1st. A married woman can hold property separate and apart from her husband, and the same is not subject to the payment of his debts; and she may purchase the same from her husband, or any one else she may choose. “ 2d. A married woman in this state has the same right to buy, sell, exchange, and in any way to dispose of or receive property by sale or gift from her husband, or other person, that a man has, so the sale is made in good faith.” These instructions, except as to the right of a married woman to receive a gift from her husband, are in accordance with the statute, and the decisions of this court: Secs. 1 and 2, ch.62, Gen. Stat. 1868, p.563; Going v. Orns, 8 Kas. 85; Faddis v. Woolomes, 10 Kas. 56; Furrow v. Chapin, 13 Kas. 107; Monroe v. May, 9 Kas. 466; Shellabarger v. Nafus, 15 Kas. 547. Waiving the question whether, independent of the statute, the husband, when out of debt, could not have given a calf to his wife, freed from the claims of his subsequent creditors, in this case the introduction of the word “gift” in the last instruction could not have misled the jury. It seems to have been incidentally, almost accidentally, used, and could not have made any impression on the jury under the issues. The wife did- not claim the property by gift from her husband; and the evidence- presented by her tended to show that she sold geese, ducks, and chickens to purchase of one Allen a cow from which came the calf claimed by her. The'instructions refused were properly rejected. The first one was clearly in opposition to the statute of the state, and to the construction thereof by this court. It was substantially to the import, that a married woman cannot take title to personal property by sale, or exchange, from her husband during coverture. Such is not the law in Kansas, and we are surprised that such doctrine should be asserted by a practitioner of this court at this late day. If the instruction had omitted all reference to acquiring title by the wife by sale and exchange, a different question would be presented than the one we are now called upon to decide. The second instruction refused was a partial attempt to produce section 3, Gen. Stat. 504; but the section was incorrectly copied. The counsel for the plaintiff is in error in assuming the instruction was a transcript of the law, as the fact is, by omitting therefrom the word actual, and inserting immediate, the instruction was in direct conflict with the statute. As asked, the instruction was improper. An instruction must be good as asked, or it is not error to refuse it. This principle is alone a suffi cient reason for rejecting both of the above-mentioned instructions presented to the district court by plaintiff in error. The third instruction rejected was in reference to a demand being necessary in the cases before the actions of replevin could be maintained. .No demand was requisite. The calves were wrongfully taken by the constable, without the authority or knowledge of the owners, and the constable asserted a claim to the property by virtue of his legal process inconsistent with the owners’ rights of property and possession. The constable had no right, writ, or authority to seize the property of either Anna Randal, or M. B. Casey. Neither of these parties were bound in law to take any notice of executions in his hands against other persons; nor were they bound to know that the property was taken under any legal process. Both parties had the right to sue for the possession of the calves without alleging any demand, or proving one. Shoemaker v. Simpson, 16 Kas. 43; Stone v. Bird, id. 488. As to the allegation that the verdicts were against the weight of evidence, we need only answer, that as there was direct and positive evidence introduced showing that the property claimed by each defendant in error belonged to such party, which if uncontradicted, was sufficient to support the verdicts, we cannot now interfere. The judgments of the district court will be affirmed. All the Justices concurring.	[ -15, -20, -99, -116, 58, 96, -94, -104, 67, 35, -90, 83, -87, -38, 21, 107, 22, 45, 85, 107, -62, -73, 23, -29, -110, -109, -47, -59, -79, 104, -92, 87, 77, 48, 74, 29, 102, -64, -63, 92, -114, -127, 41, -20, -39, -128, 52, 47, 54, 75, 81, -82, -13, 46, 29, 66, -24, 45, -21, 61, 88, -8, -81, -49, 77, 18, -77, 34, -118, 39, 104, 62, -112, 49, 10, -8, 115, -106, -126, 116, 73, -101, 8, 118, 98, 33, -115, -49, 40, -88, 46, 127, -99, -90, -48, 16, 34, 9, -66, 25, 125, 86, 3, -12, -25, -99, 28, 108, -127, -117, -106, -93, -113, 60, -110, 25, -13, -90, -80, 113, -19, -86, 93, 71, 123, 51, -98, -12 ]
The opinion of the court was delivered by Valentine, J.: This was an action brought by Forbes Holton, J. P. Jones, John W. Knox and W. S. Foltz, partners, .doing business under the firm-name and style of the Croton Glass Works,, limited, against W. C. McPike and J. C. Fox, partners, doing business under the firm-name and style of McPike & Fox. The case was tried in the court below before the court and a jury, and the jury found a general verdict in favor of the plaintiffs and against the defendants for the sum of $716.04; and further found, that a sufficient tender of that amount had been made by the defendants to the plaintiffs. No other findings were made in the case. Upon these findings of the jury the court below rendered judgment in favor of the plaintiffs and against the defendants for the sum of $716.04, and also'rendered judgment in favor of the defendants and against the plaintiffs for costs. The plaintiffs bring the ease to this court on petition in error, and say in their brief, among other things, that the “plaintiffs contend that the judgment under the evidence should have been in their favor for the sum of $1,028.23 and costs; and they bring the case here for review on a case-made, which contains all the evidence offered and received in the court below, asking this court to so modify the judgment of the court below as to give plaintiffs judgment for $1,028.23 and costs, instead of $716.04 and costs.” And again, they say in their brief that, “judgment should be modified, and the district court directed to enter judgment for plaintiffs for the sum of $1,028.23, and interest from the 5th day of May, 1881, at 7 per cent, per annum, and costs.” Of course we cannot modify the judgment of the district court, as asked by the .plaintiffs. Of course we cannot direct the district court to render judgment for$l,028.23 upon the evidence alone, without any finding of any court or jury or referee authorizing the same, and in fact against the verdict of the jury and the decision of the court below; and we do not think that it is necessary to enter into any prolonged discussion giving the reasons why we cannot do so. The plaintiffs also claim that the verdict of the jury is against the evidence, and that the court below erred in refusing to grant them a new trial. We shall proceed to consider this question. It appears from the pleadings and evidence, that in February, 1879, Forbes Holton, one of the plaintiffs, was amanufacturer of glass at New Castle, Pennsylvania, and MePike & Fox, the defendants, were wholesale druggists and dealers in glass, at Atchison, Kansas. On February 14, 1879, the defendants wrote to Holton for quotations on three cars of window glass, to be shipped to them as directed in their letter. To this letter Holton replied, on February 25, 1879, as-follows: “Window-Glass Works, New Castle, Pa., Feb. 25, 1879. “MoPike & Fox, Atchison, : quote you for three cars w. glass, the average each car to be same as car shipped you Dec. 4, 1878: 75,10 and 10 percent. F.O.B. here for single, and 2J per cent, additional discount for double strength. Cash in fifteen days; freight to Chicago guaranteed you at 15-\|- cents per 100 weight. Draft,on invoice as before. Prices cannot remain as low as I quote you, so I prefer not to make you a proposition for over three cars. A substantial advance in ash within a few days points unmistakably to a much firmer market next month. Please advise by early mail your wishes. Yours truly, Forbes Holton.” On March 2, 1879, MePike & Fox, by letter of that date, accepted Holton’s proposition as follows: “March 2, 1879. “Forbes Holton, Neio Castle, Pa.: We will accept your recent proposition, with this amendment: You to ship one (the first) car when you get it ready for shipment; one in ten days thereafter, and the last (3d) in ten days after the .second. Will send memorandum of one or two cars within 48 hours, and the other soon thereafter. In the meantime will expect your answer. Yours, MoPike & Fox.” On March 7, 1879, Holton, .in answer to this letter of MePike & Fox’s, writes to them as follows: “ Window-Glass Works, New Castle, Pa., March 7, 1879. “Messrs. MePike & Fox, Atchison, Kansas — Gentlemen: Your favor 2d at hand. I accept your proposal for three cars window, average to be same each car as shipment of Dec. 4, Í878, one car to be shipped you every ten days after first car is sent forward. Dis. 75,10 and 10 single, and 2-J addition dis. for double strength, F. O. B. here, draft to be made on you at 15 days from date of shipment, and freight guaranteed you to be not over 15J cents per 100 weight to Chicago. Very truly yours, (My letter, Feb. 25, 1879.) Forbes Holton.” These letters constituted the contract between Holton and the defendants. The first two cars of glass were shipped and received and paid for in accordance with the contract; but the third car contracted for has never been shipped or received, unless the car for which this suit was brought (which was shipped and received in January, 1880) shall be considered such third car. Many other letters passed, between Holton and the defendants during the year 1879, the defendants all the time urging Holton to send them the third car of glass, and Holton continually promising them to do so and giving them fair excuses for not doing so, but not shipping the glass prior to January, 1880, among which letters are the following: ; “New Castle, Pa., November 3, 1879. “Messrs. McPike & Fox, Atchison, Kansas: I am now well up on back orders, and will reach yours during the next week or ten days. If advised by wire, I will ship you promptly on reaching your sizes, at 70 and 2J in 15 days — 5 per cent, additional for double strength — free on board cars here, with draft. The general advance in all kinds of material, and the general refusal of brokers to ship ash under old contracts, have resulted in a compromise. I have been compelled to thus write you, and will cancel your order if not hearing from you when sizes are reached to ship. “Yours truly, Forbes Holton.” To this letter McPike & Fox replied by telegram, as follows: “Atchison, Kansas, Nov. 8, 1879. “Forbes Holton, New Castle, Pa.: Letter received. Ship car of glass first possible moment. McPike & Fox.” On November 11, 1879, Holton again wrote defendants, as follows: “New Castle, Pa., Nov. 11, 1879. “McPike & Fox, Atchison, Kansas — Gentlemen: In accordance with your telegram, will ship the car-load of glass at 70 and 2J cash in 15 days, and 5 per cent, additional on D. S., F. O. B., current list. The glass will go forward in ten days. Yours truly, Forbes Holton.” On November 12,1879, and one day after the above letter • was written, and evidently before McPike & Fox received it, they wrote to Holton, as follows: “Atchison, Kansas, November 12, 1879. “Forbes Holton, New Castle, Pa.: Will not change sizes. ■Ship as per memorandum of March 12. Please obtain us best rate of freight. Rates from Pittsburgh via Chicago are 50 cents. Yours, McPike & Fox.” On December 30, 1879, Holton wrote a letter to McPike & Fox, as follows: , “New Castle, Pa., Dec. 30,1879. “McPiJce & Fox, Atchison, Kansas — Gentlemen : I will ship you to-morrow the car of glass, sizes for which have been here for some time. I regret it has not been in my power to ship you earlier; now only coming up with my old contracts. In order to pull up I started up the old Croton Glass Works, operated by me during the past year, and will ship the car from these works. Within next few days I will have every old contract wiped out, and will be in situation to ship you promptly if in want of further glass, now having 18 pots in operation. I trust the long delay will not prove detrimental, as glass comes in to you cheap; (discount now 60 per cent, in Pittsburgh.) I trust to hear from you for your further supply. Very truly yours, Fokbes Holton.” Sometime in January, 1880, prior to-the 15th, McPike & Fox received the following letter from John W. Knox, treasurer of the Croton Glass Works, New Castle, Pa., to wit: “New Castle, Pa., January 3, 1880. “McPiJce & Fox, Atchison, Kansas — Gentlemen: We have this day shipped you one car-load of window glass over the Franklin railroad, amounting to $943.85, and have drawn on you through Foltz & Son’s bank, at ten days’ sight, for the same, kindly trusting you may honor the same. We have taken great pains in selecting material. Our labor is the best that can be had, and the production of our factory is excellent. Hoping the goods just shipped to you may reach you safely in good order and give satisfaction. Please favor us with another order. Kindly trusting our business relations may prove pleasant, we are, “Yours respectfully, John W. Knox, Treasurer.” This letter is the first communication that ever passed between the present parties. About the same time a draft drawn by the plaintiffs was presented to the defendants for the amount of $942.85, and attached to this draft was an invoice and bill of lading; and about the same time, or shortly afterward, the car-load of glass mentioned in thé letter and the bill of lading arrived in Atchison. The defendants, not understanding the matter, as they had never ordered glass from the plaintiffs, sent the following telegraphic dispatch to the plaintiffs: “Atchison, Kas., January 15,1880 — 4 p. m. “ John W. Knox, Treasurer Croton Glass Works, Limited, New Castle, Pa.: Is car of glass shipped us by you the same one we bought of Forbes Holton? “(15 — Pd.) McPike & Fox.” And in answer to this dispatch, the defendants received by telegraph the following reply: “New Castle, Pa., January 15, 1880. “McPike & Fox: It is Holton’s order, and same quality of glass. John W. Knox.” There was considerable correspondence following between the plaintiffs and defendants and the defendants and Holton, which we think it is not necessary to give. The defendants were at all times willing to pay for the glass in accordance with the contract entered into between themselves and Holton; but they were not willing to pay the amount which the plaintiffs claimed they should pay. As additional facts, we might say that the evidence showed that Forbes Holton had operated the Croton Glass Works from the time of the commencement of the first correspondence between Holton and the defendant, up to July 1, 1879, when he quit operating the same and purchased other glass works in West New Castle.' The Croton Glass Works were allowed to remain idle until about December 25, 1879, when the present company, the plaintiffs in this ease, put them in operation. The present company, the Croton Glass Works, limited, was organized in-November, 1879, by Holton and the other plaintiffs in this case. After the Croton Glass Works, limited, got fully into operation, and a short time before they shipped the car-load of glass concerning which this controversy arose, to the defendants, Holton showed to Knox his letter of November 3, 1879, to McPike & Fox, and also showed Knox their telegram of Noevmber 8, 1879, in reply, and told Knox that his company (and it appears he was the general manager of the company ) might fill the order. None of the other members of the company, except Holton himself, had any knowledge of the previous correspondence that had taken place between Holton and the defendants; and upon this order, or consent, or direction, of Holton’s, the company, the present plaintiffs, the Croton Glass Works, limited, sent the car-load of glass to the defendants. The plaintiffs never received any order from the defendants to furnish glass, and the two companies, the plaintiffs and the defendants, have never had any other dealings with each other; and both the plaintiffs and the defendants supposed that the plaintiffs, in furnishing the car-load of glass to the defendants, were simply filling an order made by defendants to Holton, and. fulfilling a contract previously entered into between the. defendants and Holton; and the whole difficulty that has arisen in the case, has arisen out of the fact that the plaintiffs, except Holton, did not know what the contract was between the defendants and Holton. 3. contract price oniytobepaid. Upon the foregoing facts, are the plaintiffs entitled to recover more than the contract price agreed upon between Holton and the defendants by their letters of February and March, 1879 ? The plaintiffs claim that they are. They claim that Holton, with the consent of the defendants, canceled the original contract, and that, the car-load of glass furnished in January, 1880, was furnished upon a new and independent contract made between Holton and the defendants, by virtue of Holton’s letter of November 3, 1879, and the defendants’ telegram of November 8, 1879. We think the plaintiffs are mistaken. The defendants never agreed that their original contract should be canceled, and Holton, the party who was in default — the only wrong-doer in the case — had no power on his own separate volition to consummate such a cancellation. The defendants’ telegram of November 8, 1879, was, in substance and in spirit, but little more or less than were the frequent letters and telegrams that they had previously sent to Holton from May, 1879, up to November, 1879, urging him to furnish the carload of glass which they had contracted for, and which he had agreed to furnish them; and there is no good reason for understanding it in any different light than that in which he evidently must have understood-these other letters and telegrams ; and probably he did not misunderstand it. Besides, the defendants’ letter of November 12, 1879, would seem to show what was intended; and from Holton’s letter of December 30,1879, it clearly appears that Holton was not mistaken; that he understood that when he should furnish the car-load of glass that he must furnish it upon his old con-an(j ag j-]le plaintiffs furnished the glass to the defendants upon the contract of Holton, who was a member of their firm and their principal agent in the transaction, they were bound to know all that he knew with reference to the previous dealings between himself and the defendants) and they could not obtain rights as against the defendants of any higher or different character than Holton himself could if he had furnished the glass to the defendants instead of the plaintiffs. The plaintiffs simply took Holton’s place, and stand precisely where he would stand if he alone had furnished the glass. We think the decision of the court below was correct, and its judgment must be affirmed. All the Justices concurring.	[ -80, 126, -4, -97, 74, 96, 32, -38, 64, -127, -73, 115, 121, 67, 20, 123, -25, 125, -44, 106, 92, -77, 7, 50, -109, -14, -37, -51, -79, 76, -28, 94, 76, 36, -54, 29, -10, -62, -63, 86, -58, 29, 40, -19, -7, 72, 52, 123, 114, 75, 49, -104, -13, 44, 29, -53, 41, 44, 123, 57, -48, -7, -123, -123, 93, 20, -112, 38, -100, 71, -40, 44, -112, 53, 8, -32, 122, -74, 6, -44, 33, -71, 9, 100, 103, 17, 1, -17, -4, -120, 47, 94, -115, -91, -75, 56, 75, 69, -66, -97, 100, 0, -121, 126, -26, -99, -99, 108, 2, -117, -110, -69, -113, 124, -104, -125, -21, -125, 18, 97, -51, 104, 92, 68, 24, -101, -114, -114 ]
The opinion of the court was delivered by Brewer, J.: This was an action on a note and a bond for a deed. The petition alleges a sale of certain real estate; that a note was given for the purchase-price; that a bond was given by the vendor to convey the real estate upon the -payment of the note. Both the note and the bond were ■copied into the petition. An answer was filed, and the case went to trial. Judgment was rendered in favor of the plaintiff, decreeing the amount of the note a lien .on the property; that the property be sold, and the proceeds applied in satisfaction of this amount. The court found specially that no tender of a deed had been made prior to the commencement of the action. Defendants bring the record here, •and allege as error that the action was prematurely brought, in that it'was brought before any tender of the deed. The cases of Iles v. Elledge, 18 Kas. 299, and Close v. Dunn, 24 Kas. 372, are decisive on this question in favor of the plaintiffs in error. In the first case cited, speaking of' instruments similar to those in this ease, Chief Justice Hoe-ton, speaking for the court, said: “The note and bond are to be construed as dependent stipulations. All the parties to the papers must perform at the same time, neither being under any obligation to trust the other. As it appears that Elledge has neither delivered nor tendered a deed, he cannot maintain an action for the purchase-money embraced in the note sued on.” Counsel for defendant in error would distinguish this case from that, in this: that no personal judgment was rendered upon the note in the case at bar, but only a decree adjudging the amount of the note a lien upon the real estate; but the distinction amounts to nothing. The note and bond being dependent stipulations, neither party can put the other in default save by a performance or an offer to perform on - his part. No action can. be maintained on the note, not even to .adjudge it a lien, until the plaintiff has offered to convey the premises. The petition alleges a tender, but the court found that there had been none. This is not a mere technical rule, but one founded in substantial justice and to prevent unnecessary litigation. If the plaintiff had tendered a deed, defendant might have accepted it and paid the note, and thus all litigation would have been avoided. Perhaps defendant’s failure to pay was simply owing to forgetfulness. At any rate, before either party can justly summon the other into court and impose .the expense and annoyance of a suit, he should at least tender performance on his part. We see nothing in the condition of the record which prevents us from passing upon this question. A motion for a new trial was duly filed, and overruled. The journal entry of judgment and the bill of exceptions each shows that the court found that no tender had been made. The judgment of the district court will therefore be reversed, and the case1 remanded with instructions to grant a new trial. All the Justices concurring.	[ -14, 120, -48, 63, -54, 96, 42, -104, -63, -87, 54, 115, -19, -61, 4, 33, -26, 109, 101, 106, 69, -78, 39, 65, -46, -77, -47, 85, -75, -51, -28, 87, 76, 32, -62, 85, 102, -54, -59, -112, 78, -91, 11, 68, -47, -64, 48, 27, 64, 9, 101, -49, -13, 45, 17, 78, -19, 44, 75, 53, -16, -72, -103, -107, 123, 7, -111, 119, -36, 71, -6, 10, -104, 49, 1, -24, 54, -74, 6, -12, 77, 27, 41, 98, 98, 34, 81, -1, -104, -120, 46, 94, 7, -90, -111, 88, 75, 40, -98, -97, 61, 0, 39, 118, -18, 29, 25, 108, 6, -18, -42, -77, 15, 62, -110, 9, -25, 3, 48, 101, -49, 96, 92, 103, 56, -101, -113, -3 ]
The opinion of the court was delivered by Valentine, J.: This was an action brought by J. C. Smith •■and Frank E. Barnes, partners doing business under the firm-name of Smith & Barnes, against B. F¡ Simpson and Charles B. Jones, for the recovery of $1,605.12 damages, alleged to have been sustained by reason of the defendants’ taking possession of, and converting to their own use, certain goods and ■chattels alleged to have belonged to the. plaintiffs. The real and substantial question, however, that was litigated in the ■case was this: Who was the owner of the goods and chattels alleged to have been taken and converted — Samuel Barnes, or ■the firm of Smith & Barnes? The case was tried in the court below before the court and a jury, and the verdict and judgment were rendered in favor of the plaintiffs and against the ■defendants for the full amount claimed by the plaintiffs; and the defendants, as plaintiffs in error, now bring the case to this court for review. It appears from the evidence introduced on the trial, that Samuel Barnes and Frank E. Barnes are brothers; that from about June 22,1878, up to July 1,1878, Samuel Barnes owned all the goods in controversy; that about July 1,1878, Samuel Barnes took his brother, Frank E. Barnes, into partnership with him, giving him an interest in the goods, and that the two brothers then did business for a short time together, under the firm-name of S. Barnes & Co.; that about August 31, 1878, the firm of S. Barnes & Co. executed a chattel mortgage on the property to Edward Dunscomb and James A. Seaver, doing business under the firm-name of Dunscomb & Seaver; that afterward, and about September 16,1878, Dunscomb & Seaver, under the authority of the chattel mortgage, sold the goods to Smith & Barnes; that about October 20, 1878, the defendants, B. F. Simpson, as United States marshal, and Charles B. Jones, his deputy, seized and took possession of the goods by virtue of an order of attachment issued out of the United States circuit court for the district of Kansas, in an action in which Samuel M. Dodd and James G. Brown, doing business under the firm-name of Dodd, Brown & Co., were plaintiffs, and Samuel Barnes was defendant, and afterward sold the goods by virtue of the attachment proceedings. The defendants, Simpson and Jones, attached the goods as the property of Samuel Barnes, claiming that they belonged to him; and they still make such claim, while the plaintiffs, Smith & Barnes, on the other hand, claim that the goods belonged to them. The defendants, Simpson and Jones, claim that all the transactions had between Samuel Barnes and his brother Frank E. Barnes, and between them and the firm of Duns-comb & Seaver, and between Dunscomb & Seaver and the firm of Smith & Barnes, were had for the purpose of hindering, delaying and defrauding the creditors of Samuel Barnes, and were therefore, as against Dodd, Brown & Co., creditors of Samuel Barnes, and all persons acting under or for them, void in law, and did not transfer any title or interest in or to-the property from Samuel Barnes to his brother Frank E. Barnes, or from the two brothers to Dunscomb & Seaver, or from the two brothers or Dunscomb & Seaver to the present plaintiffs, Smith & Barnes; the last-named Barnes of the firm of Smith & Barnes being Frank E. Barnes, the brother and former partner of Samuel Barnes. The- plaintiffs, Smith & Barnes, however, claim that all the said transactions were in good faith, and that Smith & Barnes became the owners-of the property before the said'attachments were levied upon the goods. The claim of Dodd, Brown & Co. against Samuel Barnes was founded upon promissory notes given for goods sold by Dodd, Brown & Co. to Samuel Barnes and E. R. Haynes, and was a claim against Samuel Barnes back to the time when Samuel Barnes was admitted to be the unquestioned and exclusive owner of the goods. It will be seen that the only substantial question presented to the court below was, whether the various transactions had between Samuel Barnes, Frank E. Barnes, Dunscomb & Sea ver and Smith & Barnes were in good faith or not; for, if they were all in good faith, then the plaintiffs in this action,' Smith & Barnes, were the owners of the goods and entitled to recover for their value in this action; but if said-transactions were not in good faith, if in fact they were instituted and carried forward for the purpose of hindering, delaying or defrauding the creditors of Samuel Barnes, then as between the creditors of Samuel Barnes and the above-named persons, Samuel Barnes was the real and legal owner of the goods, and the defendants in this action, Simpson and Jones, are entitled to recover. The plaintiffs in error, Simpson and Jones, present six principal grounds of alleged error, for which they claim a reversal of the judgment of the court below. We shall consider these alleged grounds of error in their order. I. The first alleged error is, that the court below refused to strike out of the deposition of Frank E. Barnes that portion which reads as follows: “About the 20th day of October, 1878, the plaintiffs in this case were the absolute owners of the goods mentioned and described in their petition in this-case.” This evidence, we think, was incompetent. It is seldom competent to prove a fact by a simple assertion of the fact itself. And this is especially true where the fact is of a complex character, and is the principal, if not the only ground of contention in the case. Facts to be used as evidence are generally such only as may be denominated simple, primary or elementary facts; such only as have come within the witness’s own personal knowledge; such only as have in some manner or degree affected some one or more of his primary and original senses; such only as in some manner or degree involve matters and things which he has seen, heard, felt, tasted, or smelt; while on the other hand, facts of a complex nature, such as are not the direct and immediate cognitions of the witness’s own primary senses, but such only as are mere inferences or conclusions drawn from various other facts cannot generally be directly testified to by the witness. A complex fact can generally be proved only by proving in detail its primary and constituent facts, or by proving other facts which as causes are supposed to have brought this complex fact into existence, or by. proving still other facts which, as effects, are supposed to be the natural and legitimáte consequences of this complex fact; or by proving some collateral fact or facts which, with this complex fact, are supposed to be the common results or the common causes of the same set of facts, and thereby and by that means have some connection with the final fact to be proved; (for the evidential facts must in all cases have some connection with the final fact to be proved, but should rarely, if ever, be that final fact itself;) or, in some very rare cases, by proving in the proper manner some still more general or comprehensive fact which includes the final fact to be proved. But as a general rule, only such facts can be testified to directly by the witness as are comparatively simple, primary and elementary, and such only as come within the direct and immediate cognition of his senses. The witness should generally be directed to state what he has seen, heard, etc.; and then he should state the same in detail, and not attempt to give it in the aggregate. Now ownership of property is not one of such simple, primary and elementary facts as come within the direct and immediate cognition of the witness’s senses. On the contrary, it is one of that class of complex facts which can only be conceived in thought or realized in consciousness as a combination of a variety of constituent facts, or as an intangible inference or mere conclusion drawn from a variety of other facts more simple and less complicated in their nature. In the present case the main fact to be proved,' the final and ultimate fact to be ascertained, was whether the plaintiffs owned the property in controversy, or not. If they owned it, they were entitled to recover; but if they did not own it, they were not entitled to recover. It was simply this question of ownership, and nothing else, which the jury wereimpanneled to try. And to allow one of the plaintiffs to testify that the plaintiffs “were the absolute owners” of the property in controversy, was almost the same as permitting the plaintiffs to testify directly to the jury that they {theplaintiffs) were entitled to recover, ' If it is competent for the plaintiffs to testify that they were the absolute owners of the property in controversy, then it would also be competent for the defendants to testify that the plaintiffs were not such owners. Indeed, if it was competent for the plaintiffs to introduce such testimony, then it would be competent for the defendants to introduce witness after witness, and witness after witness to an indefinite number, simply to state as a witness that the plaintiffs “did not own the property” at the time it was attached. The evidence on the one side would be, “We own the property;” and on the other side it would be, “No, you don’t.” We think it is perhaps true, that the ownership of property may sometimes be proved by the direct.statement of the ownership; but it is never true'where the question of ownership is one of the main questions involved in the ease. It is probably true only where the question arises for the first time during the trial, and where the fact of ownership is proved as a minor and subordinate fact, or a collateral and unimportant fact, tending more or less directly or remotely to prove some other fact more directly involved in the issues of the case. Ownership of personal property is usually proved by the fact of prior possession, (proved in a proper manner,) with a claim of ownership, and by proof of legal transfers from the person first in possession claiming ownership down to the last. In the present case, all parties admitted that Samuel Barnes once owned the property; and that, so far as they are concerned, he was the original and prior owner; and therefore they all now claim, and claimed at the trial, under him; and therefore the proper evidence which should have been introduced on the trial, on the part of the plaintiffs, would have been evidence tending to show that by legal transfers of the property from Samuel Barnes down to them, they had finally become the true and lawful owners thereof. In all cases where the question of ownership is put in issue by the pleadings, the fact of ownership should be proved by proving in detail all the probative and evidential facts, all the minor and subordinate facts which go to make up and constitute the main fact of ownership, and indeed all the facts which may in any manner tend to prove the fact of ownership; and no witness should be allowed to state simply his opinion with regard to the ownership. In the present case, however, the witness Frank E. Barnes did not state-any facts tending to prove ownership, except the general statement that the' goods, at the time they were attached, were in the possession of the plaintiffs, and that they had been in their possession for some time previously. The witness did not pretend to state how the plaintiffs (himself and J. C. Smith) obtained the possession of -the goods, or how they became the owners. He did not pretend to state how the possession and ownership of the goods passed from Samuel Barnes, the prior-owner, to himself and J. C. Smith. All that he stated was that he and J. C. Smith were in the possession of the goods, and that they were the “absolute owners of the goods,” as-above stated. Nor did the plaintiffs introduce the testimony of Samuel Barnes, or J. C. Smith, or Edward Dunscomb, or-James A. Seaver, to show how the title and possession of the goods passed from Samuel Barnes to the plaintiffs, J. C. Smith and Frank E. Barnes. These persons, Samuel Barnes, and J. C. Smith and Duns- comb & Seaver, were the persons who ought to have known precisely how said title passed, if it ever did pass, and how Smith & Barnes became the owners of the property, if they ever did become such owners. We think the foregoing evidence objected to, was, under the circumstance^ of this case, not competent. But was its admission material error? If this were the only error in the ease, we should say that it was not material. In practice, ownership of property is often proved in this manner, and where the fact of ownership is not one of the main issues in the case, such proof would probably never be held to be material error. We shall pass this question, however, for the present, and not refer to it again until after we have considered all the other alleged errors. II. The second alleged error is, that the' court below permitted the plaintiffs below to read in evidence to the jury a certified copy of the chattel mortgage from S. Barnes & Co. to Dunseomb & Seaver. There was no error in this. The defendants, in their answer, had admitted the execution of the chattel mortgage; and besides, their objection to its introduction was simply upon the general grounds that it was “ incompetent, irrelevant, and immaterial.” There was no special objection urged against it, admitting that it was proper evidence for one purpose, but not for another — no suggestion by the defendants that its use should be confined or limited, as evidence of the fact only that the original instrument “was received and filed according to the indorsement of the register thereon.” But the objection was general, as aforesaid, and the attempt was to exclude it for all purposes. Now the certified copy was undoubtedly good evidence, and sufficient evidence, for the purpose of proving that the original instrument “was received and filed according to the indorsement of the register thereon.” (Comp. Laws of 1879, p. 557, § 13.) ■ And ■the court below, under such circumstances, did not err in permitting it to be introduced in evidence. III. The third alleged error is, that the court below allowed the witness A. D. Haynes to testify as to what “the stock of goods covered by the mortgage consisted of, and where it was situated.” There was certainly no material error in this, if error at all. The mortgage had just been read in evidence, describing the goods and stating where the goods were situated. Besides, the answer of the witness was general, that “the stock of goods consisted of dry goods, groceries, boots and shoes and general stock, and was situated in building known as Barnes & Haynes’s building, in Medina.” And the question was evidently asked the witness for the purpose only of eliciting evidence to show to the jury that his testimony which was afterward to be given would be with reference to the same goods which the mortgage itself showed had been mortgaged by S. Barnes & Co. to Dunscomb & Seaver. IV. The fourth alleged error is, that the court below permitted the plaintiffs to read in evidence to the jury a letter which the witness J. B. Carson testified he had received from Dunscomb & Seaver. The letter reads as follows: “Kansas City, Mo., Sept. 12, 1878. “J'. B. Carson, Esq., Medina, Kansas — Dear Sir: Yours of the 11th is to hand, inclosing sales of same date. We note that they are only $2.05, which is very small. We note that you will send down by express to-day $25, and trust you got it off. We also trust you got off the car of corn. Mr. Kagy will be up in Medina now in a day or so. Yours truly, Dunscomb & Seaver This evidence was surely incompetent. Neither Carson, nor Dunscomb, nor Seaver was a party in this case, and neither the defendants Simpson and Jones, nor Dodd, Brown & Co. claimed to hold under Dunscomb & Seaver; but on the contrary, they claimed to hold adversely, and the plaintiffs themselves claimed to hold the goods under Dunscomb & Seaver; and besides, this evidence was Dunscomb & Seaver’s unsworn statement, and was not in disparagement of their title to the goods, but was introduced for the purpose of sustaining it and bolstering it up. As before stated, the defendants claim that all the transactions between Samuel Barnes, Prank E. Barnes, J..C. Smith, Edward Dunscomb and James A. Seaver were fraudulent and void, and that Dunscomb & Seaver never had any title to the property; that the title and possession of the property always in fact remained in Samuel Barnes, and that the pretended possession by Dunscomb & Seaver was only á cover and a deceitful sham for the purpose of defrauding the creditors of Samuel Barnes. The evidence of J. B. Carson was introduced for the purpose of showing that Duns-comb & Seaver obtained the possession of the goods under their chattel mortgage, and that he, Carson, was placed in the possession of the goods as their agent; and this letter was introduced for the purpose of bolstering up his evidence, and of showing the good faith of all the transactions. Other evidence showed that during the time that Carson pretended to be in the possession of the goods as the agent of Dunscomb & Seaver, that both Samuel Barnes and Frank E. Barnes were continually in and around the store where the goods were situated. Frank E. Barnes assisted Carson in selling the goods to customers and to persons who desired to pur- . chase; and Frank E. Barnes had a key to the store, and could go into it whenever he chose; and he slept there every night. Now this letter, along with the evidence of Carson, was evidently introduced for the purpose of showing that Carson was in fact in the possession of the goods, and not as the agent of either of the Barneses, but as the agent for Duns-comb & Seaver, and that neither Samuel Barnes nor Frank E. Barnes was in the possession of the goods. Now of course it was perfectly competent.for the plaintiffs to show that Duns-comb & Seaver were in the possession of the goods, by Carson or by any other person as their agent; but it was necessary for them to do so by competent evidence. The letter from Dunscomb & Seaver was not itself the fact of possession, nor was it any fact, except that it was a mere letter; and as its contents were the mere statements of Dunscomb & Seaver, not under oath, its contents were incompetent to prove any fact or anything as against the defendants in this case. When this letter was written, is not shown. There was no evidence introduced showing that it was written on or about the day of its date; but at best, it was only hearsay evidence as against the defendants in this case. It was merely what Carson testified that Dunscomb & Seaver said in a letter to him. This letter was introduced in evidence on the redirect examination of Carson by the plaintiffs. Previously, however, on the cross-examination of the witness Carson by the defendants, he had testified, (but whether in response to a question put to ■him or not, is not shown,) “I had letters from them,” (meaning that he had received letters from Dunscomb & Seaver;) but no attempt was made on the part of the defendants to in-, troduce any of these letters in evidence, or to introduce any ■evidence tending to show the nature or character of their contents; and nothing further was said by the witness about any of such letters on the cross-examination. If the admission of this letter in evidence was the only error committed in the case, we could hardly say that the error was material. Many slight errors in the aggregate are sometimes, however, more prejudicial than one single error of much greater magnitude. Hence, it may be, that taking this error in conjunction with the other errors committed by the court below, the whole together would require a reversal of the judgment of the court below; while no one of them, taken singly, would require any such result. ~V. The fifth alleged error of the court below is, that the court below erred in striking out and excluding from the jury certain portions of the respective depositions of Edward Duns-comb and James A. Seaver. Upon this question, the members of this court are divided. The Chief Justice and Mr. Justice Brewer are of the opinion that no error was committed by the exclusion of said evidence; while in the opinion of the writer of this opinion, error was committed-by the exclusion. These witnesses, Dunscomb and Seaver, as before stated, were the persons who composed the firm of Dunscomb & Seaver, to whom the chattel mortgage, executed by S. Barnes & Co., had been given. This mortgage, the defendants asserted^ was fraudulent and void, and if.it was fraudulent and void, then the plaintiffs’ case must necessarily have failed for the reason that Smith & Barnes could not be innocent purchasers of the goods — Frank E. Barnes, the junior member of the firm of Smith & Barnes, being not only a member of the firm giving the mortgage, but also a member of the firm claiming title by virtue of the sale made under the mortgage, and his knowledge being the knowledge of both firms. Both Duns-comb and Seaver were competent witnesses in the case, and presumably were in possession of all the facts necessary to establish the fair or fraudulent- character of the mortgage. They lived at Kansas City, Missouri, and the defendants sought to obtain their testimony by deposition, and they were examined before a notary public of Kansas City, Missouri, for that purpose. The questions asked them were perfectly competent and relevant for the purpose of showing the character of the transactions had between them and the firms of S. Barnes & Co., and Smith & Barnes; but instead of answering the questions directly, as they should have done, .each uniformly responded in substance: “I decline to answer, because it might subject me to a criminal prosecution.” On. the trial of this case, after the plaintiffs had rested, and while the defendants were introducing their-evidence, the defendants offered in evidence the depositions of these witnesses, thus taken in Kansas City, Missouri; but the plaintiffs objected, and the court below struck out all of the answers given as above stated, and also all the questions thus answered, and would not allow the same to go to the jury. These questions and answers were substantially all of the depositions. These depositions had been on file for several months before the trial was commenced, and whether if any motion had been made to strike them out or suppress them, or to strike out or suppress any portion of them, at any time before the commencemeni of the the trial, such motion should have been sustained, it is not necessary for us now to determine; for no such motion was made. No motion was at any time made attacking the depositions, or objecting to them in any manner, until after the trial had been commenced, and until after all the plaintiffs’evidence had been introduced. We might further state, that these depositions were not taken upon interrogatories, but were taken merely upon notice given by the defendants to the plaintiffs, and hence the defendants had a right at the time of taking the depositions to ask the witnesses any questions which might fairly elicit any evidence that would be competent and relevant in the case. We might also state, that at the time the depositions were taken, the plaintiffs were not present. The question, then, for our consideration is this: Where depositions have been taken by one party, upon due notice given to the other party, and the depositions have been on file for several months before the commencement of the trial, and no motion is made by the adverse party before the commencement of the trial, attacking the depositions or any part thereof in any manner whatever, and where some of the answers to "questions propounded by the party taking the depositions are not responsive to the questions asked, but are evasive, and state matters not called for by the questions asked, but still the answers, taken in connection with the questions asked, tend to prove some of the issues in the case, may the adverse party, when the party who has taken the depositions offers to read them in evidence, object to such questions and answers and have them stricken out of the depositions and excluded from the jury? Now both Dunscomb and Seaver unquestionably knew whether the transactions had between them and the firms of S. Barnes & Co. and Smith & Barnes were fraudulent or not; and unless they were fraudulent, Dunscomb & Seaver could not have been guilty of any criminal offense or subject to any criminal prosecution because of any connection which they might have had with said transactions; hence their refusal to testify, because it might subject them to a criminal prosecution, was some evidence that the transactions were fraudulent, and therefore the evidence was unquestionably relevant; but was it not also competent? My brethren say not; and they so say upon the authority of 1 Greenleaf’s Evidence, § 450, note 5, and the authorities there cited, to wit: Rose v. Blakemore, Ryan & M. 383; Phelin v. Kenderdine, 20 Pa. St. 354; Carne v. Litchfield, 2 Mich. 340; Boyle v. Wiseman, 29 Eng. Law & Eq. 473. While on the other hand I think error was committed, and would refer to the following authorities: Weeks on Depositions, §§404, 504; Wharton’s Evidence in .Civil Cases, §§533, 546, 1266-1269; Strum v. Atlantic Mut. Ins. Co., 63 N. Y. 77; Andrews v. Frye, 104 Mass. 234; Rex v. Watson, 2 Starkie, 135; Boyle v. Wiseman, 29 Eng. Law & Eq. 474; Nelson v. Iveson, 24 Ala. 9. The defendants had a right unquestionably to prove that the transactions were fraudulent, although such evidence might at the same time prove that Dunscomb & Seaver, as well as all the other parties connected with the supposed fraud, were guilty of a criminal offense. And what valid objection can there be for proving the fraud in this manner, where, as in this case, no better evidence could possibly be procured by the defendants from these witnesses ? And the defendants should not be required to call the plaintiffs and Samuel Barnes as witnesses. As before stated, the witnesses Dunscomb & Seaver resided in the state of Missouri. If the witnesses had been present at the trial, and upon the witness stand, the questions would have been propounded to them in the presence of the jury, and the jury would have heard the questions asked, and would have heard the answers given, and would have known precisely the conduct of the witnesses while giving their testimony, and would, in my opinion, though the authorities are conflicting, have had a right to take all these matters into consideration in deliberating upon their verdict. Then, why should these matters be excluded from the jury, when produced in the form of a deposition? But, admitting for the purposes of the argument, that the plaintiffs would have had the right to have these questions and answers stricken from the depositions and excluded from the jury, if they had made the motion therefor before the trial was commenced, still, as they did not make any such motion, or any objection of that kind, before the trial, I think their motion and objection were made too late to be available. (Weeks on Depositions, §§404, 504; Strum v. Atlantic Mut. Ins. Co., 63 N. Y. 77.) I think the court below erred in excluding said questions and answers.. But my brethren think otherwise, and their combined opinion overrules mine. VI. The sixth alleged error is, that the court below erred in giving instructions numbers 6 and 7. The sixth instruction was unquestionably erroneous; but it was erroneous simply from the fact that the court below, instead of saying the creditors of Samuel Barnes, inadvertently said “the creditors of Dodd, Brown & Co.” The mistake was so palpable and manifest that we hardly think it could have misled the jury, though possibly it might. We think the seventh instruction was also erroneous, because it was not applicable to the facts of this case. It seemed to ignore the fact that Frank E. Barnes was a member of the firm of S. Barnes & Co. as well as of the firm of Smith, & Barnes; and that therefore the firm of Smith & Barnes could not enjoy the fruits of the fraudulent transactions of S. Barnes & Co. But probably this error did not mislead the jury. The court, in another instruction, gave the jury the law upon this subject correctly. VII. We have now considered all the points made by counsel for plaintiffs in error, and while we find that the court below committed several errors, we can hardly say that any one of them, if taken separately and singly, would be sufficient to, require a reversal of the judgment rendered by the court below. If the final result reached by the court below had been such as we think it should have been, it is possible and perhaps even probable that we could not say that any of the errors committed by the court below were material. But the result was wrong. The transactions had between Samuel Barnes, and Frank E. Barnes, and Dunscomb & Seaver were, in our opinion, unquestionably fraudulent; and therefore the verdict of the jury and the judgment of the court below should have been in favor of the defendants and against the plaintiffs; and therefore it would seem that some one or more of the erroneous rulings of the court below must have led to this erroneous verdict and judgment; and there fore that some of such erroneous rulings were, either singly or in the aggregate, material. • The judgment' of the court below will therefore be reversed, and the cause remanded for a new trial. ‘ All the Justices concurring.	[ -80, 110, -4, -98, 56, -32, 42, -102, 74, -95, -89, 115, 25, -61, 21, 101, -11, 77, -44, 122, -26, -77, 7, -93, -110, -77, -13, -51, -80, -55, -82, 94, 76, 52, 74, -99, 70, -32, -59, 20, -50, -124, 41, -20, -41, 0, 52, 107, 98, 67, 17, -98, -13, 46, 29, -45, 41, 40, -23, 40, -48, -7, -118, 85, 77, 22, 49, 98, -68, 67, -40, 46, -48, -79, 64, -23, 115, -76, 86, -12, 101, -119, 9, 98, 103, 48, -43, -21, 108, -104, 46, 106, -115, -90, -96, 88, 2, 65, -65, -99, 121, 0, -90, 114, -17, 93, -99, 44, 7, -113, -74, -109, -89, 114, -104, 19, -6, 3, -96, 97, -49, 34, 93, 68, 116, -109, -113, -36 ]
The opinion of the court was delivered by Valentine, J.: Nearly all the legal questions raised in this case have heretofore been decided in other cases, and it will therefore not be necessary for us now to enter upon any discussion of them. All except the last two questions raised by the plaintiffs in error will be found settled in the following eases and statutes, to-wit: Clough v. McDonald, 18 Kas. 114, first proposition of the syllabus; Neitzel v. Hunter, ante, p. 221, first and fourth propositions of the.syllabus; Dougherty v. Porter, 18 Kas. 206, first and third propositions of the syllabus; Cooper v. Condon, 15 Kas. 572, first proposition of the syllabus; Gen. Stat. 743, sections 569, 572. The two new questions are as follows: First, Did the court below in rendering judgment in this case declare that the mortgage of the Missouri Valley Life Insurance Company was a lien upon property not included in said mortgage? Second, Did the court below err in rendering judgment in favor of the Missouri Valley Life Insurance Company for attorney-fees ? I. Said mortgage included the following property situated in the city of Concordia, Cloud county, to-wit: All or nearly all of block 195, with a stone grist-mill and a steam sawmill upon it, and some lots, and “all and singular the hereditaments and appurtenances thereunto belonging.” The court below in rendering judgment declared “that the said mortgage is the first lien upon the lands in said mortgage and in the said answer and in the said petition described.” Now this declaration of the court below is undoubtedly correct with reference to the lands described in said mortgage and said answer; but whether it is correct with reference to the- lands described in said petition, is questioned. The petition not only described said block, and lots, and mills, but also in connection with said block and mills mentioned a dam and water-power in the following words to-wit: “and the dam and water-power appurtenant thereto.” The plaintiffs in error also in their mortgage to McKinnon & Co., (which is the mortgage described in the petition,) mention said block and mills, and dam and water-power in the same way. That is, they admit in their mortgage to McKinnon & Co. that the dam and water-power are appurtenant to said block and mills; and there is nothing in the record that we have found tending to show the contrary. Indeed, from anything that we have found in the record said dam and water-power may have been on the land described in the said first-mentioned mortgage. But whether they were on such land or not they were appurtenant thereto, and were therefore included in the mortgage; and the court below did not err in declaring the mortgage a lien thereon. Whether the court below erred in determining the priority of the .various liens as between the various parties who are now defendants in error, is not a question for the plaintiffs in error to raise. The defendants in error are not complaining. II, The plaintiffs in error in their mortgage to the Mis souri Valley Life Insurance Company stipulated as follows: “And the parties of the first part herein promise and agree, to and with said party of the second part, that in any action that may be brought for any amount that' may be due and unpaid upon said note, or by virtue of any of the provisions of this mortgage, or to enforce the same, the party of the second part or its assigns shall be entitled to and may have, recover, and receive, of and from the said parties of the first part, ten per cent, upon the amount due and recoverable at the time payment shall be made, or judgment rendered, as and for fees and compensation of attorney or attorneys of the party of the second part or its assigns for services in such action,” etc. The plaintiffs in error claim that no judgment for attorney-fees should have been rendered in this case in favor of the Missouri Valley Life Insurance Company because the aetion was not brought by such company. McKinnon & Co. were the plaintiffs in the court below, and the Missouri Valley Life Insurance Company was a co-defendant with the plaintiffs in error. The insurance company set up in its answer its cause of action on said mortgage, and on the note which the mortgage was given to secure. This we think was in effect bringing an action on said note and mortgage. Such a view seems to be recognized in the case of Toby v. Allen, 3 Kas. 399, 412, 413. And such a view we think is generally recognized. The judgment of the court below will be affirmed. All the Justices concurring.	[ -16, -20, -11, -83, -100, -32, 32, -104, 91, -76, -95, 83, 73, -102, 4, 117, -26, 123, 65, 122, -60, -74, 35, 98, -46, -13, -13, -60, -79, 78, -20, -49, 76, 10, 74, -43, -26, -54, -59, 84, 14, -122, -88, -51, -40, -48, 52, 91, 86, 74, 53, -113, -29, 45, 29, -62, 9, 44, -39, 61, -79, -72, -86, -99, 95, 4, 49, 36, -104, 65, -24, 10, -112, 49, 8, -24, 123, -90, -122, -12, 79, -119, -84, 102, 103, 33, 24, -17, -28, -104, 46, -33, -99, -90, -110, 24, 107, 4, -73, -99, 124, 0, -122, 126, -18, 21, 31, -20, 7, -114, -10, -77, -115, -4, -104, -61, -37, -61, 32, 113, -51, -70, 95, 69, 50, 27, 15, -3 ]
The opinion of the court was delivered by Horton, C. J.: The facts of this case are briefly these: Prior to 1875, Alfred Fisher, of Rush county, sold and conveyed certain lands which he owned in the state of Iowa, and received as part consideration from the purchaser four promissory notes, amounting in the aggregate to the sum of $1,800, the said notes being secured by a mortgage on the lands sold. The contract for the sale of the lands was made in Iowa, the notes were made payable in that state, were left in that state for collection, and have never been in the state of Kansas. The assessor of Brookdale township, Rush county, in 1875 listed these notes for taxation; and the sole question presented to us is, whether the said notes, deposited in the state of Iowa, and secured by a mortgage upon premises situated there, are subject to taxation under the laws of this state. To be taxable here, resort must be had to a legal fiction to draw the debt into Kansas. This court, in Wilcox v. Ellis, 14 Kas. 588, held the maxim, Mobilia sequunter personam, does not fully apply for the purposes of taxation, even where the property is intangible. Following the argument there expressed, we find from the facts in the case at bar, that nothing pertaining to the notes, or to the debt which they evidence, has ever been in Kansas, except that the owner of the notes is here. Now as the state of Iowa, and not Kansas, must furnish the plaintiff in error with all the remedies that he may have for the enforcement of all his rights connected with said notes, debt, etc., it would seem more just, if said notes are to be taxed at all, that the state of Iowa and not Kansas should tax them, and that we should not resort to legal fictions to give the state of Kansas the right to levy taxes thereon. In support of this doctrine, we refer to the case of the People v. Gardner, 57 Barb. 356, in which the court says: “By a legal fiction, the personal estate of the owner has, for some purposes, been deemed to follow its owner; but in the adjustment of systems of taxation this fiction has been very generally rejected, on the ground that it was productive of unjust consequences.” See also, Hoyt v. Commissioners, &c., 23 N. Y. 225; People v. Commissioners, &c., 35 N. Y. 440; Green v.Van Buskirk, 7 Wall. 139; and cases of State Tax on Foreign-Held Bonds, 15 Wall. 300, 319; Tappan v. Merchants National Bank, 19 Wall. 490. Concluding that personal property and business do not always follow the owner for the purpose of taxation, if the business transacted or the situs of the property is not in the state where the owner resides, we must answer the question presented in the negative, and decide the notes in controversy not taxable in Kansas. It may by some be considered unjust and unequal that a citizen of this state should be allowed to possess notes and debts in another state secured by mortgages, and not pay taxes upon them here. It should not be forgotten that the duty of the judicial branch of the state government is limited to declaring the law as it exists; and any considerations involving its policy or impolicy belong properly to the legislative power. Still, we can see no good reason to complain at the results reached. Taxation and protection are correlative terms. Protection to that portion of property not taken or absorbed by the tax, is the consideration or compensation for all legitimate taxation. Without this protection, or some benefit to be returned therefor, taxation would be but another form for spoliation, or confiscation. To sustain the decision of the district court would be to ignore this fundamental principle upon which taxation is based, and authorize the assessment and taxation of persons in respect to business or interests beyond the territory and jurisdiction of Kansas, and which the laws of the State could in no way reach or protect. This principle, if logically followed out, would extend to real estate and to all conceivable business, titles, and transactions of the citizens of our commonwealth in other states and countries, and at once the power of taxation would be limited no longer to persons, property, and business within its jurisdiction. No argument should be necessary to prove the weakness of such a proposition, for the power of taxation, however vast in its character, and searching in its extent, is necessarily limited to subjects wit'hin the jurisdiction of the state. No brief was filed in this court on the part of the defendant in error, and hence we have disregarded the questionable manner in which the ease comes here, and have passed upon the facts presented, regardless of any irregularities appearing in the proceedings. The judgment of the district court will be reversed. All the Justices concurring.	[ -12, 106, -8, 126, -40, -32, 42, -101, 8, -15, 38, 83, 109, 83, 17, 107, -29, 13, 113, 104, -57, -73, 87, -53, -74, -77, -39, -33, -71, 89, -27, -57, 76, 48, 74, -75, -90, -54, -63, -36, 78, 4, 9, -40, -39, 64, 52, 47, 114, 75, 81, -18, -5, 58, 56, 65, -23, 44, -49, -77, -64, -80, -66, -41, 127, 23, 50, 4, -8, 67, 72, 46, -112, 59, 0, -20, 127, -90, 22, -36, 13, -103, 41, 98, 103, 49, -95, -17, -16, -104, 14, -41, 13, -25, -106, 88, 114, 9, -108, -99, 125, 16, 70, -14, -30, 5, 29, 109, 5, -117, -44, -77, -113, 124, -126, 67, -9, 15, 48, 97, -57, 34, 93, 71, 50, 27, -98, -12 ]
The opinion of the court was delivered by Valentine, J.: This case was once before in this court'; (12 Kas. 475.) At that time the judgment of the court below was reversed, and cause remanded for a new trial. On its return to the court below the parties filed new pleadings. The new petition filed by the plaintiffs reads as follows: (Title.) “The plaintiffs show to the court that the defendant is a corporation created under the laws of the state of Missouri, and having an office and doing business within the state of Kansas, and duly empowered, by law to do and transact the business of life insurance within the state of Kansas; that on the 3d of October 1870, one Lewis Twining, then of Lawrence, Kansas, applied to Stevens & Anderson, the duly-constituted general agents of the defendant in the business of insurance at Lawrence aforesaid, for a policy of insurance upon the life of him the said Twining; that said application was in writing, and was by the said agents of said insurance company forwarded to said company for their acceptance or rejection 0» the 18th of October 1870; that the said insurance company accepted said application, and forwarded their policy of insurance to their said agents on the 23d of said October, and that said agents on the 24th of said October delivered the said policy to the said Twining, as a contract of insurance on the part of said defendant; and the said Twining thereupon, and on said 24th of October, paid to said Stevens & Anderson for the said defendant the sum of $150.95 as and for one year’s premium of insurance upon the life of the said Twining, which was so accepted by the said Stevens & Anderson in behalf of the said defendant; and thereupon a contract of insurance was effected upon the life of the said Twining for one year from that date, and for the period of his life upon the payment of the like sum annually as a premium therefor, in, pursuance of the terms and conditions of said policy of insurance which were the same terms and conditions contained in the policy of insurance, a copy whereof is annexed to this petition. “And said plaintiffs further show, that afterward, and on the 19th of January 1871, the said Lewis Twining delivered up to the said defendant the aforesaid policy which was issued to him of an incorrect age of thirty-nine years, and under agreement with the defendant took from defendant another policy of which the annexed, marked ‘Schedule A,’ is a true copy, and which copy is made a part of this petition; that said Twining at the time of the delivery of said last-mentioned policy of insurance paid therefor to the defendant the additional sum of $5.55; that said defendant, notwithstanding said contract was entered into on the 24th of October 1870, and the contract was to insure for the life of said Twining from that date, and the premium paid at that date was a full premium for insurance for one year from that time, inserted in the said policy that-said premium was to be paid annually on the 15th of October in each year, and assured said Twining and gave him to understand that said policy was non-forfeit-able by reason of any failure to pay premium thereon at the time the same became payable by the terms of said policy, and also held out and gave said Twining to understand and believe that if he paid said annual premium provided for in said policy on or before the first of the month next after the said 15th of October, it would be as effectual as though paid promptly on said October 15th in each year, and waived the payment of said premium as provided in said policy, and gave time for the payment thereof until the first of the month thereafter. “And plaintiffs further show, that they are the heirs-at-law and legal representatives of said Lewis Twining, and the persons for whose benefit the said policy of insurance was delivered ; that said Twining died at the city of Topeka on the 24th of October 1871, from natural causes, and not from his own hand, nor in consequence of any duel, nor by reason of the violation of any law of any state, nation or province; that said Twining did not, after the issuing of said policy of insurance, violate any of the conditions thereof, but lived in the state of Kansas and followed the occupation* in said policy mentioned; that after the death of the said Lewis Twining, and on the 13th of March 1872, due proof of loss under said policy was made and served upon the said defendant according to the terms and conditions of said policy; that no part of said sum of five thousand dollars secured by said policy has been paid by said defendant, but that the whole amount thereof is now due from said defendant to these plaintiffs. “The plaintiffs demand judgment for $5,000, with interest thereon from June 11th 1872, and costs.” “Schedule A. “Mound Oity Mutual Life Insurance Company, of St. Louis, Mo.—Age, Ifi.—Number %7%0.—Amount, $5,000. Premium, $156.50 annually.—Premium payable October 15th, each year. “In consideration of the representations made to them in the application for this policy of insurance, and of the annual premium of $156.50, to be paid on or before the fifteenth day of October in each and every year during the continuance pf this policy, the first of the said annual premiums falling due on the 15th day of October 1870, do hereby insure the life of Lewis Twining, of Lawrence, county of Douglas, state of Kansas, for the use and benefit of his legal heirs or assigns of-, county of-, state of-, in the amount of five thousand dollars. And the said company does hereby agree to pay the said sum insured to the above-mentioned bene ficiaries or their legal representatives within ninety days after due notice and satisfactory proof of the death of the said assured shall have been deposited in the office of the said company, deducting therefrom the loans or other indebtedness due the said company. And it is further agreed, that if the first annual premium shall have been fully paid to this company, and default be made in the payment of any premium thereafter to become due and payable, that such default shall not work a forfeiture of this policy, but if it be surrendered within thirty days after the date of such default, this company will, in consideration thereof, issue a paid-up policy, payable as hereinbefore provided, for the amount which could be bought by the net value of this policy, (the value to be determined on the basis of assumptions contained in section 29 of an act of the state of Missouri, entitled ‘An act for the regulation of life assurance,’ approved March 10th 1869,) considered as a gross single premium, according to the single-premium rates of this company. And it is expressly understood, that the sum of all loans or other indebtedness due this company shall be first deducted from the amount of such net value. And it is further understood and agreed, that the said assured may at any time by the usual modes of conveyance travel to and from any portion of the United States, British Provinces, Canada, or Europe. If however, the person whose life is hereby insured shall engage on any railroad as locomotive engineer, fireman, or as brakeman, or personally engage in blasting, submarine operations, or the production of highly-inflammable or explosive substances, or enter the military or naval service, (the militia when not in active service excepted,) without the consent of this company in writing first had and obtained, or die by or in consequence of engaging in a duel, or in known and willful violation of any law of this or any other country, or if any material fact respecting the health or habits of the assured shall have been willfully and intentionally misstated or suppressed in the application for this policy of insurance, and on the faith of which the policy is issued, then this policy to be null and void and of no effect. “And the said-hereby acknowledge to have received a loan of-dollars, being one-third the annual premium on this policy, and that a similar loan is made on all the future annual premiums, said loan to remain a lien on said policy until paid or canceled by dividends, and to bear interest at the rate of-per cent, per annum, payable in ad vanee. Proof of interest in life of said assured must be deposited with proof of death. “Should this policy be assigned, or held as security, written notice of such assignment and transfer must be given to this company. This policy to take effect and become binding on said company, only when the first annual premium shall have been paid to Stevens & Anderson, agents, at Lawrence, Kansas, whose receipt below shall be evidence of the same. “In witness whereof, the said Mound City Mutual Life Insurance Company has hereunto affixed its corporate seal, and caused these presents to be signed by its President, or Vice-President, and Secretary, this fifteenth day of October 1870. A. M. Britton, Vice-President, [seal.] “S. W. Lomax, Secretary. “Received of Lewis Twining, of Lawrence, county of Douglas, state of Kansas, the first annual premium on this policy, this 19th day of January, 1871. “Stevens & Anderson, Agents. “Edition of May 1869. [Annual Life Policy—non-forfeiting after payment of one annual premium.] Lewis Twining delivered up policy in regard to age, 39 years, and took this corrected policy of right age, 40 years. “Stevens & Anderson, Agents.” On the back of said policy is the following printed notice to policy-holders: “ Notice to Policy-Holders.—Payments of Premiums. Renewal premiums may be paid to an agent, but only on the production of a receipt signed by the president or secretary, who are alone authorized to sign receipts on the part of the company. When receipts are delivered to a policyholder by an agent, suóh agent should countersign the same, as an evidence of payment to him. “Powers of Agents.—Agents are not authorized to make, alter, or discharge contracts, waive forfeiture, or bind the company in any way; their duties being simply the reception and transmission of applications for policies and premiums, under the rules and instructions laid down in their letters of appointment. Agents of the company are not under any circumstances authorized to write the receipt of premiums, or make any indorsement on the policy. “Restoration of Forfeited Policies.—The company may, but solely as an act of grace or courtesy, and when the interest of the company will not be impaired in any way thereby, restore a forfeited policy. When a restoration is applied for, the application must invariably be accompanied by a certificate as to the health of the person whose life was insured, and at his expense, from a physician acceptable to the company. In all cases of restoration of forfeited policies, and in all cases where the premium is received after the day on which it became due, and after the expiration of the thirty days’ grace, although the policy may not have been formally canceled on'the company’s .books, the renewal or revival of the policy, in whatever form made, will be (in accordance with the decision of the commissioners of internal revenue,) subject to stamp tax, the same as if a new policy had been issued, and the new stamp must be paid for by the policyholder. “Alteration of Policies.— Changes in the manner of paying premiums, (as from yearly to half-yearly, or quarterly, or the reverse,) can be made; but when such a change is required by a policy-holder, the policy must be forwarded to the office of the company for the requisite indorsement. When a policy is altered at the request of the holder, the revenue stamps required in the new form must be paid for by him. A change of interest in a policy can only be made on the written request of the legal owner of the policy, and with the consent of the company. “Assignments.—A wife cannot legally assign a policy drawn in her favor. A husband cannot assign a policy to his wife. When a policy is assigned, written notice of such assignment must be given to the company, for registration on its books. All assignments, to be valid, require a revenue stamp, equal in value to that on the policy, and the cost of such stamp must be borne by the policy-holder. “Proofs of Loss.— In the event of the death of a person assured, application should be made to the company for a blank form of ‘proof of death.’ This form contains affidavits to be made by the attending physician of the deceased, by a friend present at the time of death, by the undertaker having charge of the'interment, and by the person to whom the policy is payable. These proofs should be properly filled up and forwarded to the company, and if found satisfactory, payment of the policy will be made by check, or on the or der of the legal holder of the policy, sixty days after the .proofs shall have been received by the company, on surrender of the policy duly receipted. Ordinarily, if desired, policies will be discounted as soon as proofs of death have been approved by the company.” The new answer filed by the defendant to said new and amended petition of the plaintiffs, after caption and title reads as follows: “The said defendant for answer to the amended petition of the plaintiff in this action says: That it is not true and therefore denies that on the 3d day of October 1870, or at any other time, the said Stevens & Anderson, mentioned in said petition, were the general agents of the said defendant, in the business of insurance, at Lawrence, or in any other business or at any other place. The said defendant also denies that said application for insurance was forwarded to said defendant for its acceptance or rejection on the 18th of October 1870, or that defendant accepted said application, and forwarded its policy of insurance to its agents on the 23d of October 1870, or that said agents on the 24th of October 1870 delivered the said policy to the said Lewis Twining, or that said Twining on the 24th of October 1870 paid to said Stevens & Anderson for the said defendant the sum of $150.95, or any other sum, as and for one year’s premium upon the life of said Twining, or for any other purpose, or that a contract of insurance was then effected upon the life of said Lewis Twining for one year from that date, or for any other time or date. The said defendant says, that on the 3d day of October 1870, said Lewis Twining made said application for insurance to said defendant, and which application for insurance was received by the said defendant prior to the 15th of October 1870, and that on said 15th of October said application for insurance of the said Lewis Twining was duly accepted, and the policy of insurance above mentioned was on that day executed and delivered by defendant to said Lewis Twining, and that said Lewis Twining on that day paid to said defendant the said sum of $150.95 as and for the first annual premium on the life of the said Twining as mentioned in said policy of insurance, which said sum was on that day paid by said Twining for the purpose of and accepted by said defendant as a payment for one year’s premium of insurance upon the life of said Twining, from the 15th of October 1870 — the said Twining, thereby receiving an insurance on his life by the defendant for one year from October 15th 1870, and for the period of his life, upon the payment on the 15th of October of each year thereafter the sum of $150.95, provided the statements and representations in his said application were true in all respects, which was made a condition to acceptance of said application, which said policy is the one first mentioned in plaintiffs’ said amended petition, and which was the only policy issued by the defendant to said Twining prior to the issue of the policy of which a copy is attached to said petition. “The defendant further says, 'that said Twining in his application for insurance on the 3d of October 1870 aforesaid, stated his age at his nearest birthday to be thirty-nine years, whereas at his nearest birthday to that time he was forty years of age, which fact was not known to the defendant until about the 10th of January 1871, when the said Twining then agreed with the defendant to surrender the policy he then had, and pay to the defendant the further sum of $5.55, (said sum being the additional amount he would have been compelled to have paid had he given his true age on the 3d of October 1870,) and take a new policy of insurance on his life for the same sum, to-wit, $5,000, to be dated October 15th 1870, and instead of paying the sum of $150.95, thereafter, annually on the 15th of October, to pay the sum of $156.50, on the 15th of October annually thereafter, and the policy to be issued as aforesaid, upon the life of said Twining should require him to pay as an annual premium the sum of $156.50, on the 15th of October annually thereafter during the life of the said Twining. In pursuance of said agreement said Twining, on the 19th of January 1871, surrendered to this defendant the policy first above described, and paid to said defendant the said sum of $5.55, and no more; he having paid said sum of $150.95 to the defendant on the 15th of October 1870, as specified in the policy first above mentioned; and the defendant did on said 19th of January 1871, deliver to said Twining the policy of insurance on which this action is brought, a copy of which policy is attached to said petition. “The said defendant for further answer to said amended petition denies that there was any contract or agreement made between the said Twining and said defendant on the 24th of October 1870, or that defendant ever agreed to insure the life of said Twining for the term of one year from that date, or that said Twining paid on that day any money whatever, or that said Twining on that day or any other time paid to said defendant any money to pay premium for insurance on his life for one year from the 24th of October 1870, or that the date on which the premium was to be paid by said Twining to said defendant was inserted in said policy so as by the terms thereof to require the payment on a different day than the day agreed upon between the said Twining and said defendant. “The said defendant for further answer to said amended petition, denies that it ever made any statements or represen-» tations to said Twining as to the nonforfeitable condition, of the policy, or of any matter in relation thereto, other than those printed on or contained in the policy, a copy of which is attached to plaintiff’s amended petition. “The said defendant further denies that it ever held out or gave said Twining to understand or believe, that if he paid said annual premium provided for in said policy on or before the 1st of the month after said 15th day of October, it would be as effectual as though paid promptly on said October 15th in each year, or that it ever gave him to understand anything to that effect, or that said defendant ever waived or gave said Twining to understand or believe that it waived the payment of said premium as provided for in said policy, or gave time for the payment thereof until the first of the month thereafter. “Said defendant for further answer to said amended petition denies that said Lewis Twining did not after the issuing of said policy of insurance violate any of the conditions thereof. Said defendant says that said Twining did violate the conditions of said policy in not paying the annual premium when the same by the terms and conditions of said policy became due, whereby said policy at the time of the death of said Twining had become and then was forfeited and void.” This answer was duly verified by affidavit. The plaintiff in reply thereto filed a general denial, not verified in any manner. A trial was then had upon these pleadings before the court, without a jury. Evidence was introduced of which we shall speak more fully hereafter. Afterward, on the 26th of July 1875, the court made special findings .of fact and conclusions of law, which findings and conclusions read as follows: Finding of Facts.— 1st. The defendant, the Mound City Mutual Life Insurance Company of St. Louis, Mo., is a corporation created under the laws of the state of Missouri, to do the business of life insurance. Through circulars published prior to the 3d day of October 1870, it advertised some of its features as, “Thirty days grace allowed in payment of premiums;” and, “All policies non-forfeitable after one annual premium is paid.” Under the last-quoted feature two methods were stated to be in use by the company, between which policy-holders could choose. 2d. By the first method, called “paid-up policies,” explained in the circular hereinbefore referred to, the policyholder, on the annual life plan, after the payment of one annual premium, could within thirty days after failure to pay a premium surrender his policy and receive a paid-up policy for an amount which the net value of the surrendered policy at date of lapse, computed on the four-and-a-half per cent. American mortality basis, considered as a single premium of insurance, would purchase, according to the company’s single-premium rates. 3d. By the second method, called “temporary insurance,” explained in the circulars hereinbefore referred to, if the policy-holder on the annual life plan, after payment of one annual premium, should not be able to meet his renewal payments, his policy would be continued in force so long as four-fifths of its net value computed as before, considered as a single-premium “temporary insurance,” would carry it, and then it would lapse, so that if death ensued within this' period the policy (less the foreborne premiums with ten per cent, interest) would be paid in full. 4th. The defendant published, for the government of its agents, and gave to them, printed instructions to the effect that no policy should be delivered thirty days from its date; no policy should be in force until the premium was paid; the receipts for the renewal premium should be delivered only on payment of the premium on or beforé the day it is due, or within thirty days thereafter, but not afterward; a book would be furnished in which to register all policies and renewal receipts sent to them for collection; to remit all premiums promptly, and to remit in full all moneys in their hands on the first of every month. 5th. In 1869 the defendant employed one Alvin B. Hard, at Lawrence, in Douglas county, as its agent to solicit appli cations and collect premiums for insurance, and furnished him advertising circulars—among others, copies of the one hereinbefore referred to; also, blanks, and a book with the following printed on the top margin of the pages: “Mound City Mutual Life Insurance Company of St. Louis, Mo.— Policy Register at-Agency.” On each page were ruled columns, with printed headings designating the entries to be made in each. In this book the agent registered each policy received in the course of his business. 6th. About the middle of September 1870, one William Henry, before that time employed by the defendant as a special agent to solicit applications and collect premiums for insurance in any state or county he might be sent into, came to Lawrence, in Douglas county, and assumed control of, and succeeded to, and undertook the completion of the business before that time intrusted to agent Hard, from whom he received the book called the “Policy Register,” and the circulars and blanks on hand, and was from that time the only authorized agent of the defendant at Lawrence until succeeded by Stevens & Anderson. 7th. On the 3d of October 1870, at the solicitation of agent Henry, one Lewis Twining made application for insurance. The application was sent to the home office at St. Louis, Mo., where, on the 15th, it was approved and a policy of life insurance issued on the annu.al life plan, on the life of the applicant, for five thousand dollars, and forwarded to the solicitor, who delivered it to the insured on the 24th of the same month, and received $150.95 in full payment of the first all-cash premium for one year’s insurance, and $1.50 policy fee and stamp, as shown by the policy and entries on the policy-register, which the defendant required its agent to keep. 8th. On 28th of December 1870, the defendant employed Stevens & Anderson as its agents to transact its business in Douglas county. They had an office convenient of access on a principal street in Lawrence, where the policy-holders and other persons from whom they were soliciting insurance were frequent visitors, amongst whom they distributed the circulars hereinbefore referred to, and to whom they stated their custom to be not to require payment of renewal premiums before the last day of the month within which they became due; and we are informed by Stevens that this statement was expressly made by Stevens & Anderson to Lewis Twining. 9th. Afterward it was ascertained that Twining had misstated his age in his application for insurance; that he had represented his age as thirty-nine years at nearest birthday, when in fact it should have been stated at forty, and accordingly, at his own request, the error in his application was corrected, and on the 10th of January 1871 another policy was issued as of the same date as the former one, and forwarded to Stevens & Anderson who delivered it to the insured on the 21st of the same month, and received as increased premium for one year’s insurance on account of difference in age, $5.55. This policy is the one sued on, and described in plaintiffs’ petition. 10th. By the terms of the corrected policy it appears that in consideration of the representations made in the application for insurance, and of the annual premium of $156.50, to be paid on or before the 15th of October in each year during the continuance of the contract, the first of the annual premiums falling due on the 15th of October 1870, (the date of the original policy, and the date it was executed at St. Louis, Missouri,) the defendant insured the life of Lewis Twining for the use and benefit of his legal heirs or assigns, in the amount of five thousand dollars, conditioned that the policy should take effect and be binding only when the first annual premium should be paid to its agents named therein. 11th. It was a condition of the policy, that if default should be made in the payment of any premium subsequent to the first, such default should not work a forfeiture of the policy; but if it was surrendered within thirty days thereafter, the defendant would, in consideration thereof, issue a paid-up policy for an amount which could be bought by the net value of the surrendered policy (the value to be determined on the basis and assumptions contained in section 29 of an act of the state of Missouri, entitled “An act for the regulation of life assurance,” approved March 10th 1869,) considered as a single premium, according to the defendant’s single-premium rates. These rates were published in the circulars referred to. 12th. Under the provisions of section 29 of the act herein referred to, the net value of the policy is to be computed on the four-and-a-half per cent. American mortality basis, so that the agreement in the contract to issue a paid-up policy by its terms, corresponds in every particular with the method proposed in the defendant’s circular, and expressly referred to in the second paragraph of these findings. At the age of forty the expectation of life, according to the table of mortality based on American experience, is 28-18 years. At the same age, according to the defendant’s published table rates, to secure one thousand dollars payable at death only an annual premium of $31.30 (or a single premium of $445.55,) would be required. 13th. Below the policy these words are conspicuously printed in large letters: “Annual Life Policy—non-forfeiting after paying one aiinual premiumand indorsed on the-policy, the following: “Notice to Policy-Holders; ” and thereunder, “Powers of agents: Agents are not authorized to maher alter or discharge contracts, waive forfeiture, or bind the company in any way;” also, “Restoration of Forfeited Policies.— In all cases of restoratidn of forfeited policies, and in all cases-where the premium is received after the day on which it becomes-due, and after the expiration of the thirty days of grace, although the policy may not have been formally canceled, the renewal or revival of the policy, in whatever form made, will be-subject to a stamp tax the same as if a new policy had been issued.” 14th. The insured, Lewis Twining, died at Topeka in this state, on the 24th of October 1871, from natural causes,, and left surviving him, as his legal heirs and beneficiaries under the policy, his widow, Mary E., and his two children, Edward E. and Emma A., in whose names as plaintiifs this action is prosecuted. Notice and proof of death, according' to the defendant’s rules, was delivered to the secretary of the company at its office in St. Louis, Mo., on the 13th of March 1872, whereby any amount due became payable, by the terms of the policy, June 11th 1872, ninety days,after service of notice and proof of death; and excepting the failure to pay the second annual premium, the insured observed and kept all the conditions required by the terms of the policy to be-by him observed and. kept. 15th. The net value of the policy in suit on the 15th of October 1871, the day the second annual premium was payable, computed by the rule herein referred to, was $164.64,, which, according to the company’s single-premium rates,, would have purchased a paid-up policy on the life of a person at the age of forty, for $371.78; and the same net value,, considered as a single premium of temporary insurance, would have carried a policy of $5,000 at the same age, one year and nineteen days, and would have continued the policy sued on in force (assuming that the first year of insurance expired on the lfith of October 1871,) until the 3d of November 1872; and after deducting the foreborne premium of $156.50, with ten per cent, interest to June 11th 1872, $10.40, the balance on the last-mentioned day would be $4,833.10. Conclusions of Law.—The court finds the law applicable to the foregoing facts, to be — 1st. In life insurance the premium is the consideration or compensation paid, or promised to be paid, by or in behalf of the insured, to the insurers for the risk assumed: 2d. It is competent for the parties to agree upon the terms of the insurance, and courts of law yvill enforce such contracts according to the ascertained intent of the parties. 3d. But if the terms of such contracts are ambiguous, the construction given thereto will not be favorable to the party whose exclusive or general business is to deal therein. 4th. When, by the terms of the policy, the risk of insurance does not commence until some consideration is paid, payment of the stipulated compensation for one year’s insurance entitles the beneficiaries to an equivalent for the premium paid. 5th. When the first annual premium is paid, and it is optional with the beneficiary whether he will pay the second, a mere failure to do so at a stipulated time will not entitle the insurer to avoid his liability for one year’s insurance. 6th. When the premium is payable annually on a day certain, if it is optional with the insurer whether he will receive it after that day, default in such payment will relieve him from liability beyond the time for which compensation has been received. 7th. As a general rule, an agent can bind his principal only while acting within the scope of his authority; but persons dealing with an agent may presume that he is so acting concerning his special employment, until some fact appears which would put an ordinarily prudent man on his guard. 8th. The holder of a policy of insurance is bound to take notice, not only of the terms of his contract as therein expressed, but he is also bound by all conditions and notices thereunder written.or thereon indorsed at the time he received it, when the consideration for the contract is paid at the time of its delivery. 9th. An incorporated insurance company is a dealer in a special class of contracts, and is bound not only by the express letter of its contract, but as well by all circulars, notices, or other publications put forth by way of advertising its business and inducing persons seeking safe investments to patronize it. 10th. Where the insurer, by advertising-circulars, has promised to give thirty days’ grace in the payment of premiums, and has recognized such days of grace by indorsements on policies, every policy-holder has a right to rely on such promise, and the effect of such promise would be to extend payment, and make the premium fall due on the last day of grace. 11th. A policy-holder may rely upon the statement of an agent employed to collect premiums, that payment of premiums would not be required until the last day of the month within which they became due, “ and relying on such promise, a failure to pay before that time would not work a forfeiture, even within the express terms of the policy.” 12th. The liability of the insurer to pay the sum mentioned in a policy on the annual life plan, is contingent on the death of the insured, and the payment of premiums according to contract which fell due and were payable before the death ensued. Where an extension of time, or credit, in the payment of premiums is given, and death ensues before the lapse of time so given, the policy is payable as before. 13th. Where a policy of life insurance is issued on the 15th of October 1870, and by its terms the first annual premium is due and payable on that day, and the policy is not. to be binding until the first annual premium is paid, and such payment is made on the 24th of October 1870, and death ensued on the 24th of October 1871, and no subsequent annual premium is paid, there is no forfeiture by reason of default in subsequent payments. 14th. Where the insurer has, by advertising-circulars, stated that “all policies are non-forfeitable after one annual premium is paid,” and that two methods have been by it adopted, between which policy-holders can'choose and thereby avoid forfeiture; and where one method did not require any act to be done by the insured to indicate his choice, and the condition existed on which the application of the method was based, it may be presumed, in the absence of evidence to the contrary, that such method was chosen. 15th. Under the non-forfeiture method referred to in the third paragraph of the findings of fact, the policy of insurance sued on in this action was continued in force, and was binding upon the defendant at the time of the death of the insured, for by its previous publication (as an inducement to the public to contract with the defendant) it became a condition of every policy thereafter issued by the company (except when inapplicable as in paid-up policies,) not containing a clause expressly excluding it. Therefore the court concludes, that the plaintiffs are entitled to recover the sum of $4,833.10, with interest thereon at the rate of seven percent, per annum from June 11th 1872. The foregoing are all the findings, both of facts and of law, as found by the court in the trial of said action. And thereupon, on the 26th of July 1875, the court found for the plaintiffs in the sum of $4,833.10, with interest thereon at the rate of seven per cent, per annum, from the 11th of June 1872 until the 26th of July 1875, and gave judgment in favor of said plaintiffs and against said defendant for said sum and costs of suit. Thereupon the defendant filed a motion in said court for a new trial of said action, assigning therein the following reasons, to-wit: “ 1st, The decision of the court is not sustained by sufficient evidence, and is contrary to the law. 2d, The findings of the court are not sustained by sufficient evidence, and are contrary to law. 3d, The decision of the court is not sustained by the findings of fact in the case. 4th, The court erred in assessing the amount plaintiffs were entitled to recover, said assessment being too large. 5th, Error of law occurring at the trial of said action and duly excepted to by defendant. 6th, The court erred in the trial of said cause in admitting evidence offered by the plaintiffs and objected to by defendant. 7th, The defendant has, since the trial of said action discovered new and material evidence in this cause, which it could not with reasonable diligence have discovered and produced at the trial.” The transcript contains the following paragraphs: “After said motion was filed the said court adjourned said term on said 26th of July, without day, and did not before adjourning make any order continuing said motion for á new trial to the next term, nor did said court at said term make any general order continuing motions or other' proceedings pending in said court to the next term thereof. After the court had so adjourned the clerk of the court, in pursuance of a verbal direction of the judge of the court made at some prior term of the court, entered the following as an order made by the court, to-wit: “‘Ordered by the court, that all motions, orders, demurrers, and all other matters not otherwise disposed of, be and the same are hereby continued until the next term of this court.’ “Afterward, on the 21st of December 1875, at the October term of said. court, said defendant called up the said motion for a new trial for hearing, whereupon the plaintiffs objected to the consideration of the same, upon the grounds that the same had not been continued for hearing, and the defendant by not bringing said motion to hearing at the term when the same was filed had lost the right to make the same; but the court overruled, the objection, to which ruling the plaintiff excepted; and said motion was thereupon heard by the court and overruled, and the defendant excepted, and thereupon the court for cause shown, gave the defendant twenty days to make and serve a case in this action; which was served within the time given.” I. Said case was duly made, served, settled, and signed; and plaintiff in error now brings such case to this court, and upon the same asks for a reversal of the judgment of the court below.- The defendants in error object to any consideration of said case, claiming that the same is a nullity, and this they do on the following grounds, to-wit: 1st, Ihey claim that, as the court below did not by any formal or specific act continue said motion for a new trial, therefore that said motion became defunct on the adjournment of the court sine die. And 2d, that, as the statutes require that every case made for the supreme court, or a copy thereof, shall be served upon the opposite party or his attorney “ within three days after the judgment or order is entered,” unless the court or judge for good cause shown shall extend the time for making and serving such case, (Laws of 1871, page 274; Laws of 1870, page 168,) and as the present case was not made or served within three days after the time when said judgment was rendered, and as the court below did not within said three days make any order extending the time for making or serving said ease, therefore that at the expiration of said three days the plaintiff lost all right to make a case for the supreme court for the purpose of reviewing said judgment, and the court below lost all power to extend that right or to give the plaintiff further time within which to make or serve his said case. Upon these grounds the defendants claim that the plaintiff’s “case-made” is a nullity, and therefore that there is nothing for this court to consider in this case. Upon these preliminary questions presented to us by defendants in error, plaintiffs below, we would decide as follows: 1st. Said motion for a new trial did not become defunct by the adjournment of the court sine die, but it was continued to the next term of the court by the mere failure of the court to act upon it at the term at which it was filed. case-made-timeitoieat served. 2d. A .case may be made for the supreme court and served ■upon the opposite party at any time within three days after an or<^e1’ entered overruling a motion for a new trial, although such order may not be entered at the same time that the judgment in the case is rendered, nor even until the next term thereafter; and the court may, on entering said order overruling a motion for a new trial, extend the time still further for making and serving a case for the supreme court. (Laws of 1871, page 274; Laws of 1870, page 168.) II. We proceed therefore to an examination of the findings and testimony presented in the record, and a consideration of the whole case, upon its merits. There seems to be no dispute concerning the contents of said insurance policy, nor as to the indorsements thereon; and it is argued that Qne anq on]y oue premium has ever been paid, and that the insured died on the 24th of October 1871, just nine days after the second premium became due. Upon these facts alone the plaintiffs below would be entitled to recover a certain amount, but not the amount for which the court below rendered judgment. (Life Ins. Co. v. Twining, 12 Kas. 475, 482.) But the plaintiffs below claim that the other facts in the case as found by the court below, together with the facts above mentioned, would authorize just such a judgment as was rendered. The defendant beloto however claims that these other facts are immaterial, but if material that they were not correctly found by the court below. This requires an examination of said findings in connection with the evidence. The first finding states that the insurance company “ through circulars published prior to the 3d day of October 1870, advertised some of its features,” etc., and “two methods” “between which policy-holders could choose;” and the second and third findings simply state what these two methods were. These findings, are supposed to be material because Twining, the insured, made his application for insurance on said 3d of October. The plaintiff in error claims that there is no evidence to support said first-mentioned finding, and we think the plaintiff in error is correct. The fourth finding states that “the defendant published for the government of its agents, and gave to them printed instructions to the effect that * * * the. receipts for the renewal premium should be delivered only on payment of the premium on or before the day it is due or within thirty days thereafter, but not afterward,” etc. The plaintiff in error claims that this finding is incorrect. We think it is correct as to such agents as Henry, but incorrect as to such agents as Stevens & Anderson. The fifth finding states that, “In 1869 the defendant employed one Alvin B. Hard as its agent to solicit applications and collect premiums for insurance, and furnished him advertising circulars,” etc. The plaintiff in error claims that there is no evidence to sustain this finding, and we have been unable to find any such evidence. The sixth finding states that the agent Henry received a book and circulars and blanks from said Hard, etc. The plaintiff in error claims, and we think correctly, that there is no evidence to sustain this finding. The only evidence that we have found concerning Hard is as follows: Henry testifies that.at one time “Hard was the reputed agent of the company, but not the regular agent,” and the words, “A. B. Hard, Agent,” were printed on the last page of a little book delivered sometime between 28th December 1870 and 19th January 1871, by the agent Stevens to Twining. The seventh finding states that the agent Henry delivered the policy first issued “to the insured on .the 24th of the same month [October 1870,] and received $150.95 in full payment of the first all-cash premium for one year’s insurance,” etc. The plaintiff in error complains of this finding. The only evidence as to the time when said money was received is as follows: An entry in a book called “The Register of Policies,” kept by the insurance company at Lawrence, shows by a tabular statement that said policy was received from the home office “Oct. 17,” “Oct. 23,” (but the word and figures “Oct. 17” have several ink lines drawn through them, as if intended to be erased,) and that $150.95 was received “Oct. 24, 1871.” This entry contains other changes and erasures; and when the entry was made, or by whom it was made, is not shown. The changes and erasures were made (according to the testimony of the agent Stevens) on January 19th 1871, and probably the whole entry was made at that time, and by the same person. If the entry was made at any time during the year “1870,” why was the year “1871” entered instead of 1870? Said money was not received “Oct. 24, 1871.” The year is certainly wrong. It should be 1870, instead of 1871. And the agent Henry who received said money testified that the day of the month was also wrong. He testified that he received said money about the 16th or 17th of October 1870—not later than the 20th of that month—and that he knew that he did not receive it on the 24th of said month, nor at any time later than the 20th. This evidence of Henry’s was all embodied in a deposition, and was read to the court on the trial of the case. The foregoing is all the evidence there was upon this subject. The foregoing finding is supposed to be material because Twining died on October 24th 1871. There was no evidence showing that said money was received “in full payment of the first all-cash premium for one year’s insurance.” The policy itself shows that the insurance was an insurance for life, and that the first premium paid for an insurance of $5,000 absolutely and unconditionally up to October 15th 1871, and for a less amount ($371.78, as found by the court below,) after that time and for life upon the- contingency, that no further premium should be paid. In any event the insurance was an insurance for life for some amount. But just what the amount of the insurance would be at any time after October 15th 1871, depended upon the future contingencies as to whether the subsequent premiums and how many of them would be paid. In this sense the policy was non-forfeitable. And there was no evidence outside of the policy showing that the first premium was to pay “for one year’s insurance” from the time of payment. On the contrary, the agent Henry (who collected the first premium) testified as follows upon this subject: “That at the time he delivered the policy to Mr. Twining it was stated that said policy would take effect from and after the date thereof; that he told Twining that said policy would take effect and be in force for one year from October 15th 1870, and that the money he received was to pay for the premium; that neither at time of delivering policy nor any other time did he tell Mr. Twining that if said premium was not paid on the 15th of October, or when due, that it would make no difference, nor did he ever use words to that effect, or ever convey to Mr. Twining any such impression; that he informed Twining at the time he delivered the policy to him that the premium must be paid promptly each year on the day it became due, that is, on the 15th day of October of each year; that he never told him anything to the contrary, and that he never at any time made any statement to Mr. Lewis Twining in any shape modifying either in words or substance, the terms or conditions of the policy.” The plaintiff in error also criticises the eighth finding of the court below. The material facts of the case are as we think substantially as follows: On the 3d of October 1870, Twining made an application to William Henry, an agent of the defendant insurance company, for an insurance on his own life, and in the application stated his age to be thirty- nine years at his nearest birthday, while in fact he was forty years of age at his nearest birthday. The application was sent to the home office of the insurance company at St. Louis, where it was approved and a policy issued dated October 15th 1870, Twining’s age being stated therein to be thirty-nine years, and the premium fixed at $150.95. This policy was sent back to the agent Henry at Lawrence, who delivered the same to Twining, and sometime, from the 16th to the 24th of October 1870, received the first premium on said policy, amounting to the sum of $150.95. On December 28th, then next, Stevens & Anderson became the agents for said insurance company at Lawrence, and about that time the said mistake in Twining’s age was discovered. Also, about that time and afterward, Stevens gave to Twining various printed circulars issued by the insurance company, in one of which was the following: “All Policies Non-forfeitable After One Annual Premium.— Another great advantage policy-holders in the ‘Mound City’ have, is, that they never need lose the benefit of their payments, as the company does not propose to speculate in the misfortunes of those who insure in it, but offers to all a full consideration for their money. Two methods are in use by the company, and its policy-holders can choose between them, viz.: paid-up policies, and temporary insurance. “Paid-up Policies.— On the annual life plan, after one annual premium has been paid, if the policy-holder surrenders his policy within thirty days after failure to pay his premium, the company will issue him a paid-up policy, on the same plan as the first, for an amount determined as follows: The net value of the policy is computed at a date of lapse, on the four-and-a-half per cent. American mortality basis, and this net value, less any loans or other indebtedness that may exist against the former policy, is considered as single premium of insurance, and the amount it will purchase determined by the company’s single-premium rates. On the ten or five-payment life plans, or any of the endowments, a paid-up policy will be issued (on the same conditions as above) for that fractional part of the sum originally insured, as the annual premiums paid are of whole number to be made. Thus, on the term payment life plan, one payment secures l-5th, or l-10th, as the case may be; two payments secure 2-5ths, or 2-10ths, etc., etc. On the annual endowment, one payment secures l-5th, l-15th, l-20th, l-25th, or l-35th, according to the plan; and on the five or ten-premium endowments, l-5th, or l-10th, as the case may be. “Temporary Insurance.—A plan similar to that of the Massachusetts non-forfeiture law has been adopted by the ‘Mound City/ the practical workings of which are as follows: If at any time after the first annual premium has been paid, the policy-holder should not be able to meet his renewal payments, the company will continue his policy in force until the net value of the policy is exhausted, and th'en the policy lapses according to its own terms. The net value of the policy at date of lapse is computed on the same assumptions as given before, and from this net value the amount of all outstanding loans against the policy is deducted, and four-fifths of what remains is considered as a single premium of temporary insurance, and the policy is continued in force for the length of time that this single premium will carry it. Should the policy-holder die within the period covered by this temporary insurance, the full amount of the policy will be paid by the company, less the sum of the foreborne premiums and ten 'per cent, interest thereon. “The following table will explain the operation of this plan, the assumptions being that the premiums are all cash, and the period of temporary insurance dating from the time of lapse: Ordinary Life Policies.—Ages at Issue. No. of premiums paid. 1.. 5.. 20... 15... 20... Age, 20 years. Years. Days. 184 286 14 228 214 Age, SO years. Years. Days. 275 45 285 80 268 Age} U0 years. Years. Days, 19 99 356 137 747 Age, 50 years. Years. Days. 64 275 323 98 395 Age, 60 years. Years. Days. 324 81 115 162 349 “Features of the Mound City.—All policies non-forfeitable after one afanual premium is paid. Travel in the United States, British Provinces, Canada, or Europe, unrestricted. None but really extra-hazardous occupations restricted. A loan of one-third the premiums allowed if desired. Thirty days’ grace allowed in payment of premiums. Especial attention is called to the non-forfeiture plans of this company. A great advantage this company has, is, the ability to make its investments in localities where high rates of interest prevail, and where consequently better returns can be made to policyholders. In the west and south, first-class real-estate loans bring from eight to ten per cent., while in the east six and seven per cent, are the best rates to be obtained. “An annual premium of $100, compounded for twenty years at eight per cent, gives, $4,576.10; the same at six per cent., $3,678,55; difference in favor of a western or southern company, $897.55. To a practical business man this is a point of great interest, as he can see by a glance the advantages a policy-holder in a company investing at eight per cent, has over one, whose company can only obtain six per cent. A. B. Hakd, Agent, Lawrence, Kansas.” Stevens also at this time and afterward told Twining that he (Stevens) would receive the premium falling due in any particular month up to the first day of the next month thereafter. His testimony upon this subject is as follows: “ §Mesiio«.-State what was the custom of the defendant, if it had established any, as to the payment of yearly premiums upon policies at the time such premiums became due. “Answer.-The company had established no custom excepting in so far as I did it myself. I had established it so that if I got my money on the first of the month after it was due it was all I required. “ Question.-State whether you communicated any such fact to Twining. “Answer-1 believe I did in taking his application for another policy. Twining called at our office occasionally. I, think the other policy was in February 1871. He was frequently in the office conversing about the other policy. . “ §Mesiion.-State what you said to Twining as to the practice of the company, and your practice, in requiring prompt payment of premiums, and as to whether you should require it. “Answer.-1 don’t think I ever stated to him anything as to the custom of the company. One of the inducements that I held out to him for taking another policy was, that if he paid the money at any time during the month it would be sufficient; that I had to forward the money the first of every month, and if I could only have the money then it would be all I required; that if he paid the money at the first of the month after it became due, it would do; that I had to send off my report on the first of each month. * * * “I said we didn’t care about having the money paid when due if it was only paid on the first of the month following. I was talking about the policy I then proposed to issue. I said, that if he paid the money at any time during the month it would be all we would require. Myself and my partner were the only agents here. I had to report once a month. I did not ask the company about it, and the company never authorized me to extend the time for payment of premiums on policies. I never told Twining about my power. All I told was, that if I had the money on the first day of the month it was all I required. It was before and after this policy in suit was executed that I talked about the time of paying the yearly premium. I can’t say whether or not I ever told Twining I would extend the time of payment of premiums on the policy in suit.” “ I had no authority from the company to give credit for premiums until the first of the month succeeding the time when they became due. It was a matter of convenience to myself and the customer that I extended the time.” John Charlton then testified in behalf of plaintiff as follows: “ I am an insurance agent at Lawrence—both life and fire insurance. Have been in the business nearly seven years. I was acquainted with the custom of insurance companies by their agents at Lawrence as to receiving of annual life premiums during the years 1870 and 1871. It was the custom of such agents during those years to receive the annual premium falling due during the month at any time previous to the first day of the month following.” This is all the evidence there was upon this subject. One of the instructions of the insurance company to the agent Henry reads as follows : “5th. Receipts for the renewal of premiums, signed by the president, or secretary, will be sent to you, which you will countersign and deliver on the payment of the premium, on or before the day on which it is due, or within thirty days thereafter, but not afterward, until a new certificate from the physician is sent to the office and returned to you approved. The agent will in person or by mail notify the applicant ten days previous to the time when the renewal premium is due; and if not paid when due the notice will be repeated.” The instructions of the company on the same subject to the agents Stevens & Anderson read as follows: “13. You will be furnished with a register, in which you will enter all policies, and renewal receipts sent to you for collection. “ 14. Eenewal notices will be sent you in time to give policy-holders ample notice of their dues. “15. When a renewal premium is paid, you will deliver the renewal receipts, first countersigning the same as evidence of payment to you. Eenewal receipts must be signed by the president, (or vice-president,) or secretary of the company • no others are valid.” Sometime about the last of December 1870, or first of January 1871, said policy was returned to the company at St. Louis and canceled, and a new one was issued in lieu thereof just like the original in every respect except that it represented the age of Twining to be forty years instead of thirty-nine, and increased the annual premium to be $156.50 instead of $150.95—the $5.55 increase being added because of the addition of one year in the age of the insured. This new policy was delivered to Twining, and he paid the additional amount of $5.55 on the first premium. This was about January 19th 1871. This new policy is the one now sued on. The second annual premium has never been paid. Whether the company ever gave Twining any special notice in writing of the time when said second premium became due, is not shown. On October 24th 1871, Twining died. The plaintiffs, who are the heirs of said Twining, after giving due notice then commenced this action on said new policy. The main question to be détermined is, whether the plaintiffs are entitled to recover the whole amount ($5,000) for which the life of Twining was originally insured, (less the amount of the second annual premium,) or are entitled to recover only the amount of a paid-up policy to be determined accord-n§ ° stipulations of said new policy. The plaintiffs (defendants in error) claim that they are entitled to recover the whole amount for which the life of Twining was originally insured. And they claim the same upon the following grounds and for the following reasons: 1st. They claim that the insurance for $5,000 was absolutely unconditional and non-forfeitable in every respect and particular. They claim that the insured, by paying the first annual premium, purchased an absolute, unconditional, nonforfeitable insurance for $5,000 for the whole of his life, and that no subsequent ■ failure to pay any of the subsequent annual premiums could in any manner or degree destroy, lessen, or abridge such insurance, except possibly that the overdue premiums might be' considered as debts due from the assured to the company, and might (after the death of the insured) be set off against the claims of the beneficiaries. 2d. The plaintiffs also claim that the first annual premium was not paid until October 24th 1870, notwithstanding the evidence of Henry to the contrary, and that by such payment the insured purchased an insurance for $5,000 for a full year from October 24th 1870, (and this, notwithstanding the policy and the evidence in the case,) and that the year for which such insurance was purchased did not terminate at the beginning of the 24th of October 1871, but that it included all.of that day. That is, we suppose that the plaintiffs will admit that in order for them to be entitled to the $5,000 insurance which they claim by virtue of said purchase, the insured must have died within the year for which such purchase was made, and that he did not die after the completion of such year. If so, then the plaintiffs in effect claim that a year is not ended with the close of the 365th day, or with the beginning of the 366th day, after the commencement of such year; but that it is ended only on the beginning of the 367th day. They in effect claim that a year, beginning on the first day of January of any year would not end at the close of the 31st day of December following, but would end only on the beginning of the 2d day of the next January, and that all of the first day of the second January would belong to the first year. And if this claim of the plaintiffs is correct, then it would seem to follow that a child born on any day of the year, would not be a year old on the first anniversary of its birthday, but would be a year old only on the next succeeding day; that such anniversary would belong to the first year of its life, and not to the second; that a young man born on any day of the year would still be a minor on the 21st anniversary of his birthday, and must wait until the beginning of the next day before he could claim to be of full age; that three days’ notice in any case would not be complete on the beginning of the fourth day after the service of the same, but would be complete only on the beginning of the fifth day after such service; that the twenty days given to a defendant within which to answer would not expire at the termination of the twentieth day after the return-day of the summons, but that the defendant would have the whole of the twenty-first day within which to answer. (Contra, see Neitzel v. Hunter, ante, p. 221.) Now while these things would seem to follow from the plaintiffs’ claim in this respect, it is possible they would not follow. It is possible that in computing a year’s time the 366th day (and the whole of it) may be considered as a mere point in time, indivisible, and at which or during which the year may be considered as completed or not completed as justice and the preservation and protection of rights would require. Usually (as laid down by the authorities) if the time is to be computed from an act, or from an act done, (as in this case,) the year would terminate at the close of the 365th day; but where the time is to be computed from a date or from the day of a date, the year would terminate only at the close of the 366th day. 3d. The plaintiffs also claim that, as the company issued certain circulars, one of which the agent Stevens handed to Twining, showing that the company, in order to prevent forfeitures and to save policies from lapsing, had adopted two methods of insurance, between which policy-holders could choose, designating one of said methods as “paid-up policies,” and the other as “temporary insurance,” and describing each, therefore that the plaintiffs may now choose the second method, although Twining at the very time he became a policy-holder, and afterward, by accepting said policy and holding it chose the first. The first method is simply the one stipulated for in the policy sued on in this case. The second method is as follows: Where a policy-holder fails to pay a premium the company will nevertheless continue the policy in force for the full amount of the insurance less said premium and interest as long as four-fifths of the net value of said policy, after deducting loans, will as a single premium carry such insurance. In the present case said insurance would have been carried nineteen days from the failure to pay the premium,-and Twining died within that time. 4th. The plaintiffs also claim that, as the company instructed its agent Henry to give notice (written, or printed, and in addition to the notice given by the policy itself,) to policy-holders when their premiums became due, and as it was not shown in this case whether any such notice was ever given to Twining, or not, therefore that the plaintiffs should recover the full $5,000 insurance in this case. 5th. The plaintiffs also claim that the statements made by the agent Stevens to Twining concerning his (Stevens’) custom to receive premiums at any time up to the first of the month next after they became due, and his statement that he would so receive Twining’s premiums, taken in connection with the custom generally of insurance agents at Lawrence to receive the premiums coming due to their respective companies at any time up to the first of the month next after the same became due, constituted a waiver on the part of the insurance company itself of payment being made strictly within the time prescribed by the insurance policy, and therefore that neither Twining nor his heirs lost anything by failing to pay said second premium at the time it became due, which was October 15th 1871, or prior to the death of Twining, which occurred October 24th 1871, just nine days after said second premium became due, and this, notwithstanding the indorsements on Twining’s policy stating that the insurance company’s agents had no authority to make any waiver for the company. Responding now to the foregoing claims made by defend ants in error, we decide the questions therein presented, as follows. As to the first and second claims: Twining did not ^y payment of the first annual premium purchase an absolute, unconditional, non-forfeit-able insurance for $5,000 for the whole of his life, nor for any other time extending beyond the 15th of October 1871. By said payment he purchased an insurance for said amount up to the 15th of said October, and after that time for such an amount (the court below finds it to be $371.78,) “fully paid up” as could have been purchased with the net value of the policy, and nothing more, with the privilege however of paying the subsequent annual premiums at the time they became due, and by such subsequent payments keeping the insurance up to $5,000. In this we simply reaffirm the decision made in this case when it was formerly here, and reported in 12 Kas. 475. 4 Methods of insurance; option of assured. As to the third claim: As Twining by accepting and holding his said policy chose one of the two methods of insurance adopted by the insurance company to prevent forfeitures, his heirs cannot now abandon that method and choose the other. The fourth claim of defendants in error, plaintiffs below, is wholly untenable. The fifth claim of defendants in error we are inclined to think is tenable. Good faith and fair dealing would hardly permit an insurance company to allow its agents to use words and acts which would naturally mislead the insured and then to take advantage of the mistakes _ 0 or errors of the insured brought about by such words and.acts. We shall assume that counsel for plaintiff in error are correct in construing that the indorsements on Twining’s policy in effect state that no agent of the conjpany has any authority to waive the time for the payment of any premium. And assuming that the indorsements so state, then they are not strictly true. The agent Henry, who procured for Twining his first policy, had authority from the company to waive payment of premiums after they became due for thirty days. And the company itself printed and published circulars, copies of which Stevens gave to Twining both before and after Twining’s second policy was issued, stating, “Thirty days grace allowed in payment of premiums.” Now Twining may have supposed that the agent Stevens who procured said second policy had the same authority to waive the time for the payment of premiums that Henry had. And Twining may have supposed from said circulars alone that the company would waive payment of premiums for thirty days. Stevens stated to Twining before said second policy was issued, as well as afterward, that he would receive the premiums at any time after they became due up to the first of the month next thereafter; and he made these statements before the policy was issued to induce Twining to take said policy. And it was the custom of Stevens, as well as of all the other insurance agents at Lawrence, to receive premiums after they became due up to the first of the month next thereafter. Now it must be presumed that the insurance company knew of the custom of its own agent. A principal is always presumed to know what his agent does within the general scope of his agency. The knowledge of the agent in such cases is the knowledge of the principal. And as the agent at Lawrence adopted this custom, and in pursuance thereof received premiums up to the first of the month next after they became due, it must be presumed that the insurance company knew the same, and adopted the same. There is no evidence that the company ever found any fault with its agent for adopting this custom, and Stevens was still its agent when this suit was tried. It must therefore be presumed that the company itself adopted said custom; and if so, then the statements of its agent Stevens to Twining, made in pursuance theroof, would be binding upon the company—not perhaps as a contract, but as a waiver of payment within the strict time prescribed by the policy, which waiver Twining had a right to depend on until notice should be given to him that some other custom was adopted. It would hardly seem like justice for the agents of an insurance company to be permitted to adopt some custom, and then to make statements "(and we might almost say agreements) upon the strength of such custom, and then, after such custpm and such statements and agreements have had their effect in inducing particular action or non-action on the part of the assured, for the company itself to come in and repudiate such custom, statements, and agreements. We think that under such circumstances neither Twining nor his heirs have lost anything by the failure to pay said second annual premium at the time it became due; and as Twining died before the first of the month next after the same became due, his heirs may now Tecover the full amount of the insurance, less the amount of said annual premium. If Twining had lived until after the first of the month next after his said premium became due, and had then died within thirty days after such premium became due, whether his heirs could recover such amount it is not necessary for us to decide in this case. That is, it is not necessary for us to decide (further than we have already decided) what the effect of the company’s publishing that “Thirty days grace allowed in payment of premiums” would be in other cases. As tending to sustain the foregoing propositions with regard to waiver, and especially in cases where the words and acts of the company’s agents would tend to mislead the policy-holder unless a waiver were presumed on the part of the company, we would refer to the following authorities: N. Y. Life Ins. Co. v. McGowan, 18 Kas. 300; Helme v. Phila. Life Ins. Co., 61 Penn. St. 107; Mayer v. Mutual Ins. Co., 38 Iowa, 304; Thompson v. St. Louis Mut., 52 Mo. 469; Ruse v. Mut. Ben. Life Ins. Co., 26 Barb. 556; Ins. Co. v. Wilkinson, 11 Am. Law Reg. 486, 495; Howell v. Knickerbocker Life Ins. Co., 44 N. Y. 277. The judgment .of the court below will be affirmed. All the Justices concurring.	[ -80, 110, -12, 61, 8, 96, 32, -101, 91, -32, -92, 115, -39, -54, 21, 127, -42, 13, -43, 122, -44, -73, 7, -94, -46, -14, -47, -59, -79, 95, -18, -2, 72, 48, 10, -99, -26, -56, -63, -100, -50, 12, -88, -20, -39, 80, 52, 121, 82, 83, 117, -118, -13, 42, 29, -37, 41, 44, 123, 41, -111, -7, -117, 7, 127, 18, 49, 38, -104, 69, 88, 46, -104, -79, 9, -23, 91, -90, -122, 116, 99, -103, 8, 102, 103, 37, 17, -49, -68, -100, 55, -38, -99, -89, -74, 88, 3, 13, -66, 29, 116, 16, -121, 126, -18, 20, 28, 60, 1, -117, -14, -78, -49, 118, -101, 7, -1, -125, -96, 113, -52, 32, 93, 71, 56, -109, 15, -98 ]
The opinion of the court was delivered by Horton, C. J.: This was an action to recover from the railroad company damages for injuries to a colt owned by the defendant in error, together with a reasonable attorney-fee for the prosecution of'the suit. The liability of the railroad company was based upon the provisions of ch. 94, laws of 1874, pp. 143, 144. Judgment was rendered for the defendant in error for $40 as his damages, and $25 as the attorney-fee. Upon the trial in the district court, the following questions and answers were admitted against the objections and exceptions of the railroad company. From John Tracy, a witness produced by the defendant in error: “ Did you know plaintiff’s colt that was killed, and Mr. Snyder’s colts? Ans.-I know all the colts.” “.How did the plaintiff’s colt compare with Snyder’s ? Ans.-They are in appearance about the same kind of colts. I am not a good judge, but would call them about the same value.” From John Watkins, also produced by the same party: “State what was the value of Snyder’s colts last November, (the month Harper’s colt was wounded.) Ans.-Snyder’s colts were worth $50 apiece. They were good colts. I offered that for them.” There was error in permitting the witnesses Tracy and Watkins to thus testify. The policy of the law, independent of other reasons, requires that the best evidence within the control of the party introducing testimony should be produced. It was not claimed or asserted that direct proof of the value of the colt was wanting. On the other hand, the record-shows that the plaintiff in the court below had other persons attending the trial in his behalf, who knew the value of the colt in question, and were competent witnesses in the case. The only purpose of submitting the testimony quoted, must have been to increase the actual value of the colt, prior to its injuries, by comparative or indirect evidence, and thus to obtain damages in excess of its real worth. Such testimony, if permitted in cases of this character, where as a general rule the sympathy of the jury is with the party suing, and against the corporation, would furnish an imaginary rather than an actual basis for recovery, and would naturally tend to the giving of excessive damages. If the competency of such testimony was indorsed by this court, in all similar cases hereafter, instead of proving the known or true value of animals wounded or killed by the agents or cars of railroad companies, counsel seeking to recover large damages, to prove values, would introduce witnesses to show by their evidence the appearance of the animals wounded or killed with other like animals of great value, and supplement such proof with the testimony of the values of the other animals. Such proof is deceptive, and certainly liable to mislead a jury. In the absence of any necessity of adopting proof of this kind, the courts should not allow its admission. Again, the law is well settled that all evidence should be confined to the points at issue. The attention of the jury should not be distracted by immaterial or irrelevant matters. The reasons why this rule should be maintained are obvious. If not enforced, trials would be injuriously prolonged, the real issues obscured, and verdicts taken on side issues. In the ease at bar, one of the questions at issue was the value of Harper’s colt in November 1874. Instead of being directed closely to this issue, the minds of the jury were diverted by the evidence of Tracy and Watkins to Snyder’s colts and their value. If one witness could testify concerning the value' of Snyder’s colts, then many others could likewise have been introduced for the same purpose, and the result would be greatly unfavorable to the corporation against which the damages were claimed. The evidence offered and objected to was unnecessarily circuitous, was calculated to distract the jury from the real issues, was seemingly designed to prejudice the rights of the plaintiff in error, was not the best evidence at hand, and should have been rejected. The counsel for the defendant in error suggests that, admitting the inadmissibility of the testimony, the court was justified in its rulings, as the attorney of the plaintiff in error on the trial did not state the reasons for his various objections. As a general rule this of course should be done, and we refer to the many decisions of this court in support of the reasonableness of the rule; but in this case the evidence was so im proper, its incompetency so obvious and incurable, we think the objections sufficiently definite for the plaintiff in error to avail itself of the error of the court. As to the other questions presented by the counsel for plaintiff in error, we need only say that they have been settled by the adjudications of this court adverse to the positions maintained in his brief, and we*do not feel inclined to reopen the discussion concerning them. See K. P. Rly. Co. v. Mower, 16 Kas. 573; Hopkins v. K. P. Rly. Co., 18 Kas. 462. For the error in admitting incompetent testimony, the judgment of the district court will be reversed. All the Justices concurring.	[ 112, 126, -83, -67, 10, 96, 34, -120, 69, -95, -90, 115, -23, -54, 5, 43, -10, 61, 85, 43, 86, -109, 87, -29, -46, -109, 123, -51, 49, 72, -32, 87, 77, 48, -22, 85, 102, -54, -47, 92, -50, -116, -69, -20, -7, 120, 48, 62, 118, 79, 49, -98, -13, 46, 28, 83, 105, 58, 107, -71, -48, 113, -82, -123, 109, 2, -79, 2, -100, 35, -40, 62, -104, 49, 1, -8, 115, -76, -126, -43, 33, -117, 12, 102, 103, 1, 125, -55, 124, -88, 47, -2, -113, -89, -78, 80, 11, 105, -106, -99, 56, 64, -121, -4, -20, 77, -40, 100, 3, -113, -106, -93, -17, 102, -98, 83, -53, -91, 22, 117, -59, -86, 93, 5, 114, -101, -113, -113 ]
The opinion of the court was delivered by Horton, C. J.: This was an action commenced in the district court of Leavenworth county, to recover damages for libel. The petition alleges in substance, that the defendant was editor, proprietor, and publisher, of the Leavenworth Daily Commercial, a newspaper printed in the city of Leav enworth, and that on the 20th of January 1875, there was published in the said paper, of and concerning the plaintiff, a certain false and malicious libel, in words as follows, to-wit: “The insurance department of our state will in all probability be subject to. a thorough investigation, as a bill has already been introduced into the senate to investigate. This is right. Every insurance company in the state is willing an investigation be had. Mr. Russell, ex-superintendent, invites it, and the present superintendent is anxious for the same. “There is a cadaverous-looking individual of Leavenworth loafing around here who seems exceedingly anxious for an investigation, in hopes that the superintendent will be done away with and the department presided over by the auditor. A clerkship in the dim distance makes him enthuse. I cannot blame Castle much, knowing that board and other bills too numerous too mention have been pressing him for some time, and then doubtless the Northwestern Life would be glad to hear from him as he was published as a defaulter to that company. He is one of the most promising individuals (to his landlords) I know of, and the cry of fraud from such a completely played-out insurance agent has but little bearing with an intelligent body of legislators. If his caliber was as large as his bore, he would be a success. Jack.” In answer to the petition, defendant set up three defenses, first, an admission that the article complained of was published in defendant’s paper, .of and concerning the plaintiff, but denied that the same was published with malice; second, that defendant had no personal knowledge of the publication of the article at the time of its publication, with the further allegation, that the several matters and things in the article, complained of as defamatory, were true, and published for justifiable ends and purposes; and third, a general denial. To the answer plaintiff filed a reply, denying generally, save and except what was admitted, all the allegations in the answer. When the case came on for trial, it was submitted to a jury, and plaintiff obtained a verdict for $1,250, whereupon defendant gave notice of motion for a new trial, which was filed, and after being argued was by the court sustained, upon the ground that the court had erred in its instructions to the jury. The plaintiff excepted, and has brought the case here for review. It appears from the record that the court below granted the motion for a new trial on the ground that the jury was misdirected by the following instructions, viz.: “ The fact of the language being true, is not alone an answer to the charge, but can only be shown in mitigation of damages. “It is not a defense simply to show the truth of the matter published, but the party must go further, and show that it was not only true, but that he acted with good motives and for a justifiable end, and that he had some purpose in view that was. justifiable. If that be the case, if he acts honestly for good purposes and for justifiable ends, and what he says is true, then he is to be excused or acquitted.” In this condition of the case, we must first inquire whether the instructions above set forth were improperly given on the trial. If erroneous as a statement of the law controlling the case, they certainly may have misled the jury. If correct in principle, and applicable under the issues presented, the court erred in granting a new trial for the reason given. An examination of this question will lead to a brief review of the law of libel in both criminal and civil prosecutions, so far as to consider and determine when a defendant may be permitted to give the truth in evidence as a full justification of alleged libelous matter. It was at one time the rule of the common law, that the truth of the charge, however honorable and praiseworthy the motives of the publisher, could not be given in evidence in a criminal prosecution. Hence originated the familiar maxim, “The greater the truth the greater the libel.” This doctrine was based upon the theory, that where it was honestly believed a particular person had committed a crime, it was the duty of him who so believed or so knew, to cause the offender to be prosecuted and brought to justice, as in a settled state of government a party grieved ought to complain for an injury to the settled course of law; and to neglect this duty, and publish the offense to the world, thereby bringing the party published into disgrace or ridicule, without an opportunity to show by the judgment of a court that he was innocent, was libelous; and if the matter charged was in fact true, (thereby insuring social ostracism,) the injury caused by the publication was much greater than where the publication was false. A false publication, it was contended, could be explained and exposed; a true one was difficult to explain away. As an additional reason for this rule, it was also held that such publications, even if true, were provocative of breaches of the peace, and the greater the truth contained therein the greater the liability of hostile meetings therefrom. That this was the true rule of the common law has been denied by many of the ablest jurists in both England and America, who maintained that the liberty of the press consisted in the right to publish with impunity, truth, with good motives and for justifiable ends, whether it respected government, magistracy, or individuals. It certainly was derived from' the polluted source of the star-chamber, and was considered at the time an innovation, but like some other precedents, although arbitrarily and unjustly established, it came to be followed generally by the courts, and sustained as the law of the land. In 1804, in the state of New York, this principle of law was recognized and asserted in the case of The People v. Croswell. In that case the defendant was prosecuted for libel for having published in his newspaper, at Hudson, in that state, called the Wasp, the charge against Thomas Jefferson, then president-,, that he (Jefferson) paid Callender for calling Washington a traitor, a robber, and a perjurer. The defendant, through his counsel, Alexander Hamilton, applied to the judge at the circuit to put ofif the trial to obtain the testimony of Callender to prove the publication true. Lewis, C. J., presiding, denied the motion, because the testimony was inadmissible, as the truth of the facts charged as libelous did not amount to a complete justification. 3 Johns. (N. Y.) Cases, 336. This case attracted so much attention that, after a verdict of guilty had been rendered,' and while the case was pending in the courts of New York on a motion for a new trial, the legislature of that state passed a law providing that in every prosecution for writing or publishing any libel, it should be lawful for the defendant, upon the trial, to give in evidence, in his defense, the truth of the matter contained in the publication charged as libelous, and that such evidence should not be a justification, unless it should be further made satisfactorily to appear that the matter charged as libelous was published with good motives and for justifiable ends. Since the adoption of the New York statute declaratory of the law of libel in criminal actions, nearly every state in the Union has made the subject a matter of constitutional or statutory provision. The wise framers of our own constitution, peculiarly acquainted with the beneficial influences of free discussion and a free press, as participants in the historical incidents and conflicts surrounding the settlement of the territory of Kansas, modified the tyrannical and harsh rule of the common law as stated in the star-chamber of England, and thereafter generally understood and interpreted, by providing in section 11 of our bill of rights, that— “The liberty of the press shall be inviolate; and all persons may freely speak, write, or publish their sentiments on all subjects, being responsible for the abuse of such right; and in all- civil or criminal actions for libel, the truth may be given in evidence to the jury, and if it shall appear that the alleged libelous matter was published for justifiable ends, the accused party shall be acquitted.” Nevertheless, these framers, in a spirit of wisdom, and to preserve order, were careful not to give, as against the interests of the public, complete license even to the truth when published for the gratification of the worst of passions, or to affect the peace and happiness of society. They prescribe that the accused should be acquitted, not on proof of the truth of the charge alone, but it should further appear' the publication was made for justifiable ends. Following the intendment of the constitution, the legislature afterward provided in the act relating to crimes and punishments that — “In all prosecutions or indictments for libel, the truth thereof may be given in evidence to the jury, and if it appears to them that the matter as charged as libelous was true, and was published with good motives and for justifiable ends, the defendant shall be acquitted.” (Sec. 272, Gen. Stat. 376.) But the law-makers, jealous of the liberty of the press, and fearing the construction of the law by the courts in such prosecution, further provided in a succeeding section of the same act, that— “In all indictments or prosecutions for libel, the jury, after having received the. direction of the court, shall have the right to determine, at their discretion, the law and the fact.” (Sec. 275, Gen. Stat. 377.) While the rule of the common law, as generally applied,' was so exacting and rigorous to the defense of justification in criminal prosecutions for libel, a different doctrine was applicable in civil cases. In the case of King v. Root, 4 Wend. 114, 139, Chancellor Walworth clearly states this difference as follows: “The difficulty which existed in England, previous to Mr. Fox’s libel act, was, that in criminal prosecutions the defendant was not permitted to give the truth in evidence; and yet the jury were required to imply malice. But in civil cases, the defendant was permitted to give the truth in evidence as a full justification. Such was declared to be the law by the judges at the time that bill was under discussion in parliament, and there never has been any alteration of the law in England on this subject in civil suits.” The case of King v. Root, supra, was originally tried at one of the circuits in New York before Hon. Samuel R. Betts. The defendants, King and Verplanck, were editors of the New York American, printed in the city of New York in 1824. These editors published concerning one Root, lieutenant-governor of that state, among other things, that in August of that year he addressed the state senate, then in session, “while blind with passion and rum, when he was unwashed, unshaven, haggard, with tobacco-juice trickling from the corners of his mouth, and in a condition outraging all order, decency and forbearance.” Root brought a civil action to recover damages for the alleged libel, and the defendants admitted the publication and pleaded the truth as justification. The trial judge instructed the jury, “if the defendants had only published the truth, they had an unquestionable right to do that, and they must be acquitted.” Blackstone; in his Commentaries, asserts that the truth could always be given in civil cases in justification of libel, and seems to consider the defendant’s exemption in such instances as extended to him in consideration of his merit in having warned the public against the evil practices of a delinquent. He says that it is damnum absque injuria, intimating that the acts of the defendant, who justifies a libelous publication, does not constitute a wrong in its legal sense, and then proceeds to observe that this is agreeable to the reasoning of the civil law. (3 Bl. Com. 125.) This is illogical; and Starkie bases this exemption on the better reason, that in such instances the plaintiff has excluded himself from his right of action at law by his own misconduct, and not to any merit appertaining to the defendant. When a plaintiff is really guilty of the.offense imputed, he does not offer himself to the court as a blameless party, seeking a remedy for a malicious mischief; his original misbehavior taints the whole transaction with which it is connected, and precludes him from recovering that compensation to which all innocent persons would be entitled. (Folkard’s Starkie on Slander and Libel, Am. ed., § 692.) There are many good and sufficient reasons why a publisher of a statement, true in fact, yet given to the public with a malicious design to create mischief, should be amenable to the criminal laws, and yet not be liable in a civil action. On general principles no right to damages can be] founded on a publication of the truth, from the consideration) that the reason for awarding damages in every such case fails.] The right to compensation in point of natural justice is founded on deception and fraud which have been practiced by the defendant to the detriment of the plaintiff. If the imputation is true, there is no deception or fraud, and no right to com pensation. The criminal action in libel is supported to prevent and restrain the commission of mischief and inconvenience to society. Take the case of two men who agree to engage together in fisticuffs: the law for the protection of the peace of society, and to prevent greater collisions, may arrest and punish both combatants, and yet neither may be able to recover from the other personal damages. Where a person makes the publication solely to disturb the harmony and happiness of society, or to maliciously annoy and injure the feelings of others, or to create misery by exposing the latent and personal defects of associates or acquaintances, the interests of the public require some preventive notwithstanding the truth of the publication. This is furnished by the criminal law. But mere injury to the imagination or feeling, however malicious it may be in its origin, or painful in its consequences, is not properly the subject of remedy by an action for damages. Such offenses being unconnected with any substantive right, are incapable of pecuniary admeasurement and redress. They admit of no exact definition; and, therefore, to extend a remedy to such injuries generally, would be productive of great uncertainty and inconvenience, and open far too wide a fielpl of litigation. Again, it seems to be clear that a party who acquires an advantage by concealing the truth, which he could not have attained to had he divulged it, so far is guilty of fraud in the concealment that he cannot upon any principle claim a right to acquire that benefit, and therefore cannot complain that he is injured by the publication of the truth. (Starkie, id., 35.) In this view the truth hurts no one. In accordance with the doctrine that the defendant is justified in law, and exempt from all civil responsibility, if that which he publishes be true, it is provided in the civil code, section 126, that— “In all actions mentioned in the last section, (libel and slander,) the defendant may allege the truth of the matter charged as defamatory, and may prove th'e same and any mitigating circumstances, to reduce the amount of damages, or he may prove either.” This section of the code may be construed to mean, “in actions for libel or slander, the defendant may allege the truth of the matter charged as defamatory, and may prove the same (as a defense or full justification,) and (he may also allege) any mitigating circumstances (in the same answer) to reduce the amount of damages, or he may prove either (the truth as a defense, or mitigating circumstances to reduce the damages.)” In other words, under the code, the truth is a full justification in a civil action; and in the absence of justification, mitigating circumstances may be proved to reduce the damages; and justification .and mitigation may be set forth in the same answer, and the defendant may prove either, or both. (Gen. Stat., 653.) If it be contended that within the provision of the constitution, the proof of the truth as a defense in a civil action is no justification, except it be also made to appear that the publication was had for justifiable ends, we answer, that in view of the rule of law applicable in such cases at the time of the adoption of the state constitution, we do not think such a construction proper. It is not in accordance with the spirit or the letter of that instrument. It provides that in civil and criminal actions the truth may be given in evidence to the jury, and where an accused is on trial, that is, where a person charged with a crime for the publication of alleged libelous matter is being tried, he is not to be acquitted except the publication is true and the same was published for justifiable ends. In that event only is the accused party entitled to an acquittal. The word “accused” is used in the constitution; and an “accused” being one who is charged with a crime or misdemeanor, it cannot well be said to apply to a defendant in a civil action. If the motive of the party publishing the truth is to be considered in civil suits, under the constitution, then this section quoted, instead of operating to the protection of individuals charged in personal actions for damages for the publication of alleged libelous matter, as was doubtless intended by the framers of the constitution, would have the effect to hold parties responsible in cases where at the common law they would be entitled to a verdict. The constitution contains no grant of powers to the legislature. It is only a limitation on the exercise of its authority; and the legislature, in its discretion, has the right to pass any act not violative of the state or federal constitutions. The object of section 11 of the bill of rights was to prevent the passage of any law in Kansas restraining or abridging the liberty of speech and of the press. By it, the harsh rule of the common law, as generally recognized in libel prosecutions, was greatly modified; but we cannot seriously think that it was intended thereby to abrogate that principle of the common law—sustained and upheld under the exacting and arbitrary construction of libels in England—that proof of the truth is a complete justification in all civil actions. Nor can we believe that thereby it was intended that the legislative power of the state was forever deprived of conferring the right upon a defendant in a civil action of libel to plead the truth of the words charged as a full and complete defense. To assert otherwise would be to assert that the constitution abridged and curtailed the liberty of the press in civil actions more than the common law—more than the provisions of the constitutions of other states. The modification of the common law by the constitution we construe in favor of the liberty of the press, not against it. To conclude otherwise would be to ignore the popular sentiment in Kansas at the adoption of the constitution, and assume that the successful contestants in behalf of a free press were forgetful in their victories of its powerful influences in their behalf, or had unwittingly deprived themselves of rights allowed in England under the sway of despotic monarehs and the rule of arbitrary judges. The constitution of Rhode Island provides, “in all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be sufficient defense to the person charged.” And it was held in that state that the truth of the charge is a good defense in a civil action for libel. (Perry v. Mann, 1 R. I. 263.) From our review of the authorities, the provision of our constitu .tion, the civil and criminal codes, we deduce these important principles: First: In all criminal prosecutions, the truth of the libel is no defense unless it was for public benefit that the matters charged should be published; or in other words, that the alleged libelous matter was true in fact, and was published for justifiable ends; but in all such proceedings the jury have the right to determine at their discretion the law and the fact. Second: In all civil actions of libel brought by the party claiming to have been defamed, where the defendant alleges and establishes the truth of the matter charged as defamatory,such defendant is justified in law, and exempt from all civil responsibility. In such actions the jury must receive and accept the direction of the court as to the law. Under this view, the court below misdirected the jury in a very material point, and properly, on attention being again called to the matter by a motion for a new trial, granted such motion, and set the case again for hearing. The instructions given might have been applicable in a criminal proceeding, where the motive of the publication is important, and where the jury have the right to determine the law as well as the fact; but were erroneous in a civil action, where the facts charged were proven in justification. The instructions assumed that the truth is not a full and complete defense unless it was shown to have been published for good purposes and justifiáble ends. This is not correct. If the charges made by the defendant are true, however malicious, no action lies. (Root v.King, 7 Cow. 613, 632; Townsend on Slander and Libel, § 211; Foss v. Hildreth, 10 Allen, 76; Baum v. Clause, 5 Hill, 196; 1 Stark on Sland. 229; Rayne v. Taylor, 14 La. An. 406.) The plaintiff in error contends that the instructions could not have been prejudicial to the defendant in error, as the plea of justification was insufficient in form, and therefore the district court erred in granting a new trial. The answer among other things alleged “ that the matters charged as de famatory were true.” No motion was filed in the case to make the answer more definite or certain; no demurrer was presented; no objection taken to the evidence of the truth of the charge, as we can ascertain; and from the record we must assume that' the case was tried on the theory that the defendant was attempting to show as justification the truth of the publication, and we may assume that the evidence tended to prove the truth of the publication. Under these circumstances the point now made by counsel of the plaintiff as to the immateriality of the instructions is not well taken. The case was heard by the district court on the supposition that the plea of justification was sufficiently formal — the instructions of the court discuss what is necessary to be shown to make the truth a full justification, and the jury having been misdirected in the hurry of the trial, no error was committed in setting aside the verdict. Had the action of the court been otherwise, on proper application, we would have reversed the judgment. If any delay has resulted to the plaintiff in error in obtaining a speedy trial, it has been caused by the pendency of this proceeding in error in this court, where it was brought by the plaintiff. For this action the defendant in error was not responsible. The order of the district court setting aside the verdict of the jury in the case and granting a new trial is affirmed. All the Justices concurring. “And this brings us to the ‘law of libel.’ * * We frequently notice in the newspapers of the day, and especially those conducted by the younger and more inexperienced journalists, the idea put forth or asserted, that whatever is true may be published by any newspaper with impunity. No more fearful mistake is made by any journalist regarding the conduct of his paper. ‘ The greater the truth, the greater the libel,’ is a familiar law maxim. * * * XHis rule was founded upon the doctrine, that where it was honestly believed a particular person had committed a crime, it was the duty of him who so believed, or who so knew, to cause the offender to be prosecuted, and brought to justice; and to neglect this duty, and yet publish the offense to the world, thereby bringing the party published into disrepute and general disgrace without an opportunity to show by the judgment of a court that he was innocent, was slanderous, or libelous; and if the matter charged was in fact true, thereby insuring social ostracism, the injury caused by the publication was much greater than where the publication was false. A false publication could be explained and exposed—a.true one was difficult to explain away. This rule of the common law still obtains in some of the American states. In some it has been modified, and in others it has been nearly abrogated. In Kansas it has been only modified. Here, the general rule still is, ‘the greater the truth, the greater the libel.’ The modification is found in our bill of rights—thus: ‘“Sec. 11. The liberty of the press shall he inviolate; and all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such right; and in all civil or criminal actions for libel, the truth may be given in evidence to the jury, and if it shall appear that the alleged libelous matter was published for justifiable ends, the accused party shall be acquitted.’ “The meaning of this clause is, that if the ‘alleged libelous matter’ be m fact true, ‘the truth may be given in evidence,’ and a verdict rendered for the defendant in any action, civil or criminal, if it shall satisfactorily ‘appear that the alleged libelous matter was published for justifiable ends.’ But it requires both propositions to constitute a justification—the libelous matter must be true, and the ends for which the publication was made must have justified or warranted the publication. Publishing facts, solely to injure another, and not to benefit or protect the public, is not justifiable, but libelous; and publishing falsehoods, even though believed to be true, and from the best of motives to the public, is also libelous. This we believe is the correct construction of the clause in question. Journalists and others will therefore see that their first duty, before publishing a damaging statement against any one, is, to see to it that they get the truth; and next, to be sure that they are not actuated by personal spite, or malice, or partisanship merely, but that the interests of the public require the publication of the facts. And let them remember this—that if in a given case, a defendant in a libel suit should be able to prove his statement true, and yet unable to show that the public interests justified the publication, such proof and such failure of proof would be conclusive of the fact that his publication was malicious, and therefore libelous. If Kansas editors and journalists would study the ‘law of libel’ somewhat, we think Kansas journalism would be improved.” The views so expressed appear to have been correct with respect to ci'iminal actions, but not so with respect to civil actions for damages. The distinction made by the court in the Gastle-Houston case, between civil and criminal actions did not, when announced, satisfy either class of the former ■disputants. Editors and journalists generally, contending for the “largest liberty” for the press, (which with some means the fullest freedom, without legal responsibility for its abuse,) regarded the decision of the court as right with respect to civil actions, but as erroneous with respect to criminal prosecutions; while many lawyers, and the more conservative among the journalists and public men generally, regarded the decision of the court as a proper exposition and construction of $ 11 of the bill of rights with respect to criminal actions, yet as erroneous with respect to civil actions. Immediately upon the announcement of such decision the general discussion was reopened. While it was conceded that the law was settled by the decision of the court, the correctness of the decision itself, upon principle and authority, was not universally acquiesced in. Some of the discussions then appearing in the newspapers are valuable contributions upon “The Law of Libel” in Kansas, and it may not he unprofitable to preserve them in connection with the official report of the case decided. To this end the following articles are appended. The two articles signed “G.” were written by Hon. Kobert Crozier, of Leavenworth, formerly the Chief Justice of the Supreme Court, and now Judge of the First Judicial District. The writer of the article signed “D.” resides at Atchison, and is a lawyer of eminence, ability, and experience. The Law of Libel. —To the Editor of the Commonwealth: In the case -of Castle v. Houston, recently decided by the supreme court of this state, it was held that in a civil action for libel, the truth of the alleged libelous-matter was a complete defense. In the opinion of the court, delivered by Chief Justice Horton, the following may be found: “First: In all criminal prosecutions the truth of the libel is no defense, unless it was for public benefit that the matters charged should be published; or in other words, that the alleged libelous matter was true in fact, and was published for justifiable ends; but" in all such proceedings the jury have the right to determine at their discretion the law and the fact. “Second: In all civil actions of libel brought by the party claiming to have been defamed, where the defendant alleges and establishes the truth of the matter charged as defamatory, such defendant.is justified in law, and exempt from all civil responsibility. In such actions the jury must receive and accept the direction of the court as to the law.” Doubtless the court was right in the first of these propositions, but that it was correct in the second, is not so clear; and I beg to submit, modestly, some considerations bearing upon the subject. The following constitutional and statutory provisions are cited by the Chief Justice as applicable in the matter: “The liberty of the press shall be inviolate; and all persons may freely speak, write nr publish their sentiments on all subjects, being responsible for the abuse of such right; and. in all civil or criminal actions for libel, the truth may be given in evidence to the jury, and if it shall appear that the alleged libelous matter was published for justifiable ends, the accused party shall be acquitted.”—Section 11, Bill of Fights. “In all prosecutions or indictments for libel, the truth thereof may be given in evidence to the jury; and if it appears to them that the matter charged as libelous was true, and was published with good motives and for justifiable ends, the defendant shall be acquitted.”—Section 272, Crimes Act. “In all indictments or prosecutions for libel, the jury, after having received the direction of the court, shall have the right to determine, at their discretion, the law and the fact,”—Section 275, Crimes Act. “In all actions mentioned in the last section, (libel and slander,) the defendant may allege the truth of the matter charged as defamatory, and may prove the same, and any mitigating circumstances, to reduce the amount of damages, or he may prove either.”— Section 126, Civil Code. After stating the undeniable fact, and giving Mr. Starkie’s reasoning in defense thereof, that in civil cases, in England, the truth is a complete defense, and having showed quite conclusively that the same rule obtains in the state of New York, the Chief Justice proceeds to argue that, notwithstanding the above quoted constitutional provision, the law is the same in Kansas; and of course he is right, unless this provision compels a different conclusion. In examining the subject it is to be constantly borne in mind, that the question is, What is the law? not, What should it be? As to the latter, different opinions may be entertained; but as to the former, there should be but one. The Chief Justice concedes that in criminal cases, by reason of the constitutional provision above quoted, the truth of the alleged libel, of itself, is not, nor can it be made a complete defense; but he claims among other reasons, that because of the use of the word “accused,” the whole section, so far as the truth being an incomplete defense is concerned, is limited to criminal cases. That such was not the intention of the framers of the constitution, it seems to me is conclusively shown by the history and language of the section. In the officially published proceedings of the convention it appears, (pp. 100 to 103,) that on July 15th 1859, Mr. Hutchinson, chairman of the committee on preamble and bill of rights, reported, among other things, the following as the eleventh section of the proposed bill of rights: “Sec. 11. The liberty of the press shall be forever inviolate, and all persons may freely speak, write, or publish their sentiments on all subjects, being responsible for the. abuse of such right.” On July 18th, (p. 194,) the report of the committee being before the convention for consideration, Mr. Ingalls offered the following amendment, which was adopted: "At the close of the section, add t.he following words: 1 and in all actions for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the alleged libelous matter is true, and was published for justifiable ends, the accused party shall be discharged or acquitted.’ ” The report of the committee, thus amended, together with other portions of the constitution, having been referred to the committee on phraseology and arrangement, on July 25th, (p. 345,) that committee through Mr. In-galls, its chairman, reported it back with amendments—among others the following : “In section 11, strike out word‘forever.’ i! ~ ” Before ‘actions’ read, (insert,) lcivil> or criminal.1 After word ‘jury,’ read, ‘and if it shall appear.’ Strike out words, ‘is true, and.’ Strike out‘discharged or.’” “ i! * , “The several amendments recommended by the committee on phraseology and arrangement were then considered and concurred in, by sections.” Had the section remained as amended upon the motion of Mr. Ingalls, on July 18th, there would have been strong ground for the position that the words “accused,” “discharged,” and “acquitted,” limited the word “actions,” to criminal proceedings; not so much because of the words “accused,” and “acquitted,” (as they would be admissible, and sometimes are used, in civil proceedings,) but because of the word “discharged,” which is used in reference to persons in criminal or quasi criminal proceedings alone. According to lexicographers, “accused” sometimes means “charged,” “called to account;” and “acquitted,” would be as appropriate in a civil as in a criminal proceeding for libel, as in either case the verdict for the defendant at common law would be “not guilty.” As to the word “acquitted,” the Chief Justice doubtless would agree with me, inasmuch as he cites with approval the case of King v. Root, 4 Wend. 414, a civil ac tion in which the trial judge instructed the jury that in a certain contingency, “the defendants must be acquitted.” But the section was not permitted so to remain. The attention of the convention was specially called to the language used; and as if for the sole purpose of prohibiting a construction that would limit the word “actions” to criminal proceedings, the committee on phraseology asked the convention to insert immediately preceding the word actions the very words of all others the most appropriate for that purpose, viz., “ civil or criminal,” and also to strike out “ discharged,” a word peculiarly appropriate in criminal proceeding. Had the conceded object of the convention been to prevent the very construction now placed upon the section by the supreme court, it would be difficult, in the light of history, to conceive of a more direct mode of attempting its accomplishment. The Chief Justice attempts to fortify the position taken by the court by referring to the sections of the statutes above quoted; but in this, it seems to me, he is at least inconsequential, if not unfortunate. After quoting and commenting upon the constitutional provision, he says: “Following the intendment of the constitution, the legislature afterward provided in the act relating to crimes and punishments, that in prosecutions, or indictments for libel,” etc., (setting out sections 272 and 275 above quoted.) Now, instead of the legislature “following the intendment of the constitution” in the enactment of these sections of the crimes act, they were in fact enacted by the territorial legislature in February 1851)—five months before the convention met to frame the constitution, and more than two years before the first legislature under it assembled. (Gen. Laws 1859, pp. 280, 281, 263, 267; Comp. Laws 1862, pp.338, 339, ?§263, 267.) Again: The Chief Justice says: “In accordance with this doctrine * * * it is provided in the civil code, section 126,” etc., (copying the section above quoted.) This section originated in New York in 1849, under a constitutional provision expressly limited to “criminal prosecutions or indictments.” In 1852 the legislature of Ohio somewhat modified and adopted it, the language of their constitution being, “In all criminal prosecutions for libel,” etc. In 1858 the territorial legislature of Kansas copied it from the Ohio code, verbatim; reenacted it in the revision of 1859, and it was carried into the revision of 1868, without the change of a word or letter, and so it stands to-day.* But we are told that this section, originally framed and reenacted under constitutional provisions thus limited, when found upon the statute-book of a state whose constitution is in express terms freed from such limitation, may be construed to mean—• “In actions for libel or slander, the defendant may allege the truth of the matter charged as defamatory and may prove the same (as a defense or full justification,) and (he may also allege) any mitigating circumstances (in the same answer) to reduce the amount of damages, or he may prove either (the truth as a defense, or mitigating circumstances to reduce the damages).” Very manifestly this would be legislation, not construction. The constitution of New York says: “In all criminal prosecutions or indictments for libel;” that of Ohio, “In all criminal prosecutions for libel;” and the legislature of each state enacts a státutory provision thereunder long before our constitutional convention meets; yet it is said- that tire very same statutory provisions, under the constitution providing that “In all civil or criminal actions for libel,” etc., may by construction be made to mean precisely the same thing in the latter, as in the former. Is it not putting it mildly to say, that the conclusion of the Chief Justice, from his own premises is inconsequential? The Chief Justice cites but one adjudicated case in support of the position taken by the court. In no state constitution adopted before that of this state, can be found a provision upon this subject similar to that contained in our constitution, except in that of Rhode Island. There the language is, “In all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be a sufficient defense to the person charged.” This language would, to any person not a lawyer, seem to be so plain and comprehensible that comment would be superfluous. Yet a case is cited, and apparently relied upon by the Chief Justice, in which it is said that the truth, in a civil trial, is a complete justification, although published from malicious motives. I deny this case any weight, for two_reasons : first, the language of the constitution of Rhode Island will admit of no such construction; and second, the decision is not that of a court of last resort in that state. The case was a trial before a jury, and the language referred to that of the trial judge in a charge to the jury, evidently uttered in the hurry of a nisi prius trial, upon a point not shown to have been in controversy in the case. It is but charitable to suppose that the charge was given by a judge who overlooked the fact that recently before such trial occurred a constitution embodying the clause above quoted had been adopted in Rhode Island, and that the old charter (which would have authorized such a view of the law) was not then in force. In what I have said I have not the slightest disposition to lessen the great ■ respect the people of the state entertain for the eminent tribunal whose decision is the subject of this communication. I hope I have been actuated by a spirit intensely in favor of the truth upon a subject vastly important to a people so eminently a writing and reading community as ours is known to be. While I hope it is unnecessary for me to say that I have great confidence in the ability, learning, and high purposes of the gentlemen composing the supreme’ court, I cannot think I am exceeding the duty of a citizen when I ask them to reexamine the subject in the light of the foregoing considerations, some of which, very manifestly, were overlooked in arriving at the conclusion reached in the case referred to. Gr. The Law of Libel. —To the Editor of the Champion: Soon after the publication of the opinion in the case of Castle v. Houston, lately decided by the supreme court of this state, a newspaper printed in Kansas City, in commenting thereon severely censured that portion of the decision which held that the truth of a publication, alleged to be libelous, was not a complete defense in a criminal action. The position assumed by that paper, in view of the provisions of our state constitution and criminal statutes, was so palpably absurd that little attention was paid to this adverse criticism. Recently, a correspondent of the “Commonwealth,” writing over the initial “G.,” has sought to attack the decision on other grounds; and while fully indorsing the doctrine of the court criticised by the journal referred to, attempts to question the correctness of the principle that in all civil actions of libel the defendant is justified in law, and exempt from all civil responsibility, if he alleges and establishes the truth of the matter charged as defamatory. The communication is very ably and ingeniously written, and makes the best argument possible on that side of the question. Having had some experience in my own practice, in libel cases, and having, in years gone by, given the subject careful consideration, and differing entirely with “G.”in the prdpositions and arguments advanced by him, I have a few thoughts to suggest in “ reviewing the reviewer.” I read the opinion of the supreme court with great satisfaction and approval, and I assert most unhesitatingly, that the principles of law therein enunciated are based upon authority, reason, and justice; that a correct in terpretation has been given to the provisions of the constitution and statutes quoted in the opinion; and that the members of the supreme court struck the golden mean in deciding, on the one hand, that the malicious and malignant libeler who assails the reputation of another without justifiable ends, solely to gratify his feelings of hate, or envy, or dissension, can be severely punished under the provisions of our criminal laws, even if the charges are true; and, on the other hand, that the impecunious vagabond or graceless scoundrel shall not be able to annoy newspaper editors, and obtain cheap notoriety, from a judgment of one cent and costs in a civil action of libel, as often as he is exposed, because on the trial the editor, although proving the truth of all the publications, fails to satisfy a jury of twelve men that his purposes were entirely worthy and commendable. If it be said, that it is not justifiable (because it cannot serve any good end) to publish a statement of acts committed by a person many years prior thereto, who has afterward reformed and lived uprightly, I answer, that all of this is true, and the opinion of the supreme court points out the protection which the law gives by a criminal prosecution in just such cases. Instead of leaving the matter in the hands of the person assailed, the public prosecutor of each county has the authority to have the violator of the law tried, convicted and punished. In this way, criminal prosecutions for libel are made to subserve a wholesome purpose, and cannot be used merely to aid personal ends, or gratify malice. The decision made in the OastleHouston case is in favor of the liberty of the press; not its licentious use, or abuse. I challenge the production of any respectable authority, of any state north of Mason & Dixon’s line, contrary to the decision, or holding that in a civil action of libel the truth is not a full justification, when sufficiently and properly pleaded. But it may.be answered that our constitution is sui generis; that no other state has ever adopted a constitution so arbitrary and oppressive against the rights of the press. This I deny; and the very answer sought to be given is an argument against the conclusions reached by “G.” The 11th section of the -bill of rights was not intended by its framers to fetter or limit the publication of the truth, except as to authorize the enactment of laws to provide for the public prosecution of publishers of accusations or charges when they were not made for justifiable ends. This, undoubtedly, was on the principle that such publications tend to breaches of the peace, and thus to the disturbance of society at large. “G.” however claims that the history and language of said section 11 of our bill of rights make it clear that in civil actions the truth is not a complete defense, and asserts that when the conclusion of said section provides in what instances the accused party, on trial for libel, shall be acquitted, that the word accused embraces a defendant in a civil action, as much as a party arraigned upon an ipdietment or information. I confess I cannot see the force of the reasoning adopted by the critic in this regard, and am too obtuse to be convinced. If the word accused had not been intended to be limited to parties in criminal proceedings, the committee on phraseology in the constitutional convention would have changed the section to read, “and if it shall appear to the jury that the alleged libelous matter is true and was published for justifiable ends, the defendant in any civil or criminal action shall be exempt from all liability,” or used other words to convey like import. Certainly, if the word accused, taken in conjunction with acquitted, was not intended to be restricted to criminal cases, the committee on phraseology was extremely unfortunate in the use of language. It is said that “accused” sometimes means “charged,” “called to account,” and would be as appropriate in a civil as iri a criminal proceeding for libel. Let us examine this view. It is a settled rule of construction, that in interpreting clauses or provisions of a constitution, we must pre sume that words have been employed in their natural and ordinary meaning. This is but saying that no forced or unnatural construction is to be put upon their language. Bouvier defines “accused” to be, “one who is charged with a crime or misdemeanor.” No other definition is given. Webster defines “accuse,” “to charge with, or declare to have committed, a crime or offense; in law, to charge with an offense, judicially or by a public process; as, to accuse one of a high crime or misdemeanor.” Worcester gives the meaning of “accused,” as, one “charged with a crime,” and of the verb “accuse,” says: “to accuse is a more formal transaction than charge.” While the word “accused” sometimes means “charged,” and “called to account,” these are not its natural and ordinary significations; these are only the secondary, not the primary definitions. The framers of the constitution and the people who accepted it, employed the word accused in its natural sense, viz., “ a person charged with a crime or misdemeanor.” The attempt of “ G.” to construe it otherwise, is an act of subtlety and ingenious refinement to force a meaning which the framers of that instrument, in my humble opinion, never meant. The fact that sections 272 and 275 of the crimes act, and section 126 of the civil code, were enacted prior to the time of the adoption of the constitution, and were retained in the compiled laws of 1862 without change, and were afterward, in 1868, reenacted, as stated in the opinion of the supreme court, is an argument of the legislative construction of section 11 of the bill of rights, as interpreted by our law-makers. Considering the construction of section 126 by the courts of New York and Ohio, (from which states we derive them,) it certainly is an anomalous section to have been retained by the revisers of'1868, if the truth is not a full defense in civil actions of libel. Following the intendment of the constitution, the legislature afterward (viz., in 1868,) provided in the act relating to crimes and punishments, that in all prosecutions and indictments for libel, the proceedings should be had as set forth in said sections 272 and 275 ; and further provided, in 1868, by the reenactment of said section 126, as construed by the New York and Ohio courts, that “in civil actions for libel or slander, the defendant may allege the truth of the matter charged as defamatory, and may prove the same (as a defense or full justification,) and (he may also allege) any mitigating circumstances (in the same answer) to reduce the amount of damages, or he may prove either the (the truth as a defense, or mitigating circumstance to reduce the damages).” “G.” denies the case of Perry v. Mann, cited from 1 R. I. Rep. 263, as of any weight, for two reasons, which he gives as follows: “first, the language of the constitution of Rhode Island will gdmit of no such construction; and second, the decision is not that of a court of last resort in that state. The case was a trial before a jury, and the language referred to that of the trial judge in a charge to the-jury, evidently uttered in the hurry of a nisiprivs trial, upon a point not shown to have been in controversy in the case. It is but charitable to suppose that the charge was given by a judge who overlooked the fact that recently before such trial occurred, a constitution embodying the clause above quoted had been adopted in Rhode Island, and that the old charter (which would have authorized such a view of the law) was not then in force.” To this I answer, that the constitution of Rhode Island will admit of the construction given in Perry v. Mann, supra, notwithstanding its unusual and peculiar terms. According to the law-writers, “good motives and justifiable ends” are shown and sustained in civil cases by proof of the truth alone. “Were the truth in such cases to be no defense, it would follow that a guilty man would be entitled to far greater damages, in respect of a true representation, than an innocent man could claim in respect of a false one.” Unfortunate indeed would be the result if such a doctrine should be established by our court of last resort. Recurring to the Rhode Island authority, I find upon investigation that the opinion was delivered by the Chief Justice of the supreme court of that state in 1849; that the constitution then in force had been framed and adopted in 1842, and there had been no recent change in the organic law, or charter, shortly prior to the trial, as “G.” intimates. On further examination, I find that in 1849 the judicial power of that state was vested in one supreme court, and in such inferior courts as the general assembly might from time to time ordain and establish; that the judges of the supreme court should, in all trials, instruct the jury in the law; and from the statutes of that state, I also ascertain the supreme court then consisted of one chief’ justice and three associate justices, and that they, or two of them, composed the court; that the court had jurisdiction of all actions and pleas of a civil nature, in law and equity, brought legally before it; that such court was required, when requested by the reporter, to communicate to him a statement of their decision or opinion in any case, and from these the reports of that state were published. (P. L. of R. I., 54-88.) ■ Hence it is scarcely possible that the opinion or charge of the supreme court in the case cited could have been uttered in the hurry of the trial; otherwise, when furnished to the reporter, it would have been corrected, if erroneous, or likely to mislead. Even assuming “G.” to be correct in his belief that the word “accused” in the bill of rights was intended to apply to a defendant in a civil as well as a criminal action, still, unless the lltli section is construed to restrict and abridge the freedom of the press, the legislature had the power, by the reenactment of section 126 of the civil code in 1868, attended with the construction given it in New York and Ohio, to make the truth a full justification in civil actions of libel. “Where one state adopts a law from' another, the judicial construction given to the statute in the state where it originated follows it to the state of its adoption.” “G.” concedes that in New York and Ohio section 126 has been construed as interpreted by our court. If our constitution is subject to the construction attempted by “G.,” why the great difference in the provisions of sections 272 and 275 of the crimes act, in relation to libel prosecutions, and section 126 of the civil code, relating to civil actions? Why are the defenses in civil actions of libel and skinder of the same character? Will any one claim that the truth is not a justification in a slander suit? Since our laws were compiled in 1862, and revised in 1868, why have not the provisions of sections 272 and 275 been substantially embraced in section 126 of the civil code, if like defenses were applicable in civil and criminal suits? No other answer can be given, than that in libel and slander actions of a civil nature the truth has always been deemed a complete justification. This is the reason of the different provisions in these sections of the civil and criminal codes. But further, if the word “accused” applies to civil actions, even then the truth of the publication in a civil action would be a full defense. There can be no basis upon which damages can be founded in a civil action for libel, where the charge is true. In the words of the supreme court: “ Such offenses being unconnected with any substantive right, are incapable of pecuniary admeasurment and redress.” Exemplary or punitive damages cannot be awarded in the absence of compensatory damages; nominal damages are allowed only as compensation, and where the charge is true, but published from unworthy motives, no compensation can be granted; hence no exemplary damage. Therefore no nominal or other damages, and the result, no cause for action. I admit the question involved in this controversy is of vast importance, and I have attempted to consider it in the same spirit of truth and candor as actuated “G.” We are a reading, writing, and publishing people, and if our constitution compels every defendant in a civil action of libel, when the publication is admitted, to not only prove the truth of the publication, but to go further, and by additional evidence establish that it was made for justifiable ends, we need at once a new constitution, which will not shadow forth perpetual apprehension of litigation, and forever terrify the conscientious editor with fear of infinite vexation. If this construction is to be given to that instrument, then its framers were not imbued with the spirit of the age; and instead of “the liberty of the press being inviolate,” we have taken already one step in the path pursued by President McMahon in republican (?) France, where in the case of the radical Mot d’ Ordre, the manager was fined §51,000 for publishing a reflection on that official’s Irish ancestors. Happily, our supreme court has not thus construed the provisions of our constitution in civil cases of libel; and a reexamination of the late libel case would, in view of the authorities bearing upon the matter, if properly presented, only more strongly and forcibly evince the wisdom of the decision already made. In civil actions of libel, the proof of the truth is proof of the “good motives and justifiable ends” of the publication. D. The Law of Libel Again. —To the Editor of the Commonwealth: Soon after the publication of my former article on the law of libel, there appeared in the Atchison “Champion” a communication over the signature “D.,” upon the same subject, to which I beg the indulgence of a brief reply. I controverted the correctness of the decision in Castle v. Houston upon the sole ground that the supreme court had erred in the construction of section 11 of the bill of rights; and, in support of my position, gave the recorded history of the insertion therein of the words, “civil and criminal,” before “actions.” I thought there was some significance in the fact, that after the remainder of the section had been adopted these words were inserted by a direct vote of the convention, while “D.” not only makes no reference to this circumstance, but wholly ignores their presence for any purpose. I conceded that, as originally adopted, by reason of the words “accused,” “acquitted,” and “discharged,” the section might have been reasonably held to apply to criminal proceedings alone, but insisted that the convention meant something by striking out “discharged,” and inserting “civil and criminal.” “D.” differs with me because “accused” was not also stricken out and “defendant” inserted. The bar can judge between us. In regard to the Rhode Island case cited by the Chief Justice, “D.” says: “It is scarcely possible that the opinion or charge of the supreme court in the case cited could have been uttered in the hurry of the trial; otherwise, when furnished to a reporter, it would have been corrected, if erroneous, or likely to mislead.” I suppose this means, that when the Judge furnishes his charge to the reporter for publication, he shall not write out what he actually did say to the jury, if erroneous, but shall write what he should have said. What is to be thought of the morals of such a course, to say nothing of the impropriety thereof? In commenting upon this Rhode Island case, “D.”says: “According to the law-writers, good motives and justifiable ends are shown and sustained in civil cases by proof of the truth alone.” The language of the constitution of that state is: “In all trials for libel, both civil and criminal, the truth, unless published for malicious motives, shall be a sufficient defense to the person charged.” Certainly it must be conceded by the veriest “school-man,” that the words, “trials,” “defense,” and “charged,” are equally proper and appropriate in civil and criminal proceedings. Now suppose, for publishing a libel, a person is proceeded against both civilly and criminally, as may be done: is it to be said, under such a provision, that “good motives and justifiable ends” are shown and sustained by proof of the truth upon the “trial” in the one case, and not in the other? If so, upon what word or phrase can such a distinction be based ? Yet we are told that it must be so because the supreme court of Rhode Island has thus decided; i. e., folly, rained upon judges’ heads, necessarily becomes wisdom when filtered through judicial wigs! In conclusion, I beg to say to my reviewer, that he seems to have wholly misconceived the purpose ,of my former ..communication. It was no part of my object to discuss the policy or impolicy of the provision in our constitution ; but to ascertain the signification of the language used, and show, by its own action, the intention of the convention in framing it, while he, from the supposed impolicy of the provision as construed by me, argues that the convention must have meant nothing in inserting the words “civil or criminal,” and that with, or without them, the section would mean the same. Upon the question of policy, we might agree; upon the question of law, it seems we cannot. G.	[ -76, 104, -16, -81, 8, -96, 42, 90, 123, -95, -89, 115, -23, -30, 5, 125, -10, 45, -43, 106, -46, -105, 23, -29, -106, -77, -37, -121, -77, -53, -4, -2, 76, 48, -118, -99, 6, 74, -59, -36, -114, -115, -119, -12, -40, 72, 60, 107, 52, 75, 113, -2, -13, 42, 24, -61, 9, 44, -38, -87, -45, -79, -102, -105, 125, 18, -125, 6, -68, 67, 114, 46, -80, 49, 8, -20, 83, -90, -122, 117, 39, -87, 8, 102, 99, 33, -107, -26, 44, -88, 47, -13, 13, -89, -78, 105, 43, 8, -98, -99, 113, 16, 7, 120, -29, 20, 29, 100, 1, -118, -12, -93, -49, 40, -100, 31, -25, -93, -92, 81, -59, -92, 93, 103, 51, 57, 30, -84 ]
The opinion of the court was delivered by Brewer, J.: This was an action on an official bond of Andrew Neal, a justice of the peace, to recover moneys received by him by virtue of his office and not paid over on demand to the party entitled to the same. One matter compels a reversal of the judgment so far as the sureties are concerned, and obviates the necessity of inquiry into other alleged errors. The bond given in April 1871, as well as the oath of office of the justice, recites that he has been elected justice of the peace of Franklin township; and for that office the oath is taken, and the bond given. The proceedings had before the justice in which he received the moneys sued for were commenced 29th April 1872, and were had before him as justice of the peace of Netawaka township. No explanation is given of this discrepancy. The name of the township ■ is repeated so often, and in so many different papers, as to exclude the idea of a mere clerical error. Upon the record the fact is patent, that sureties on an official bond given by a justice of the peace of a certain township, in one year, are sought to be held liable for his official acts in a succeeding year as justice of a different township. Of course this cannot be sustained. An official bond only covers the acts of the officer in the office for which it is given; and the office of justice of the peace in one township, is not the same as the office of justice of the peace of another township. It is possible that in fact there was nothing but a change in the name of the township, or a mere change of boundaries of townships, so that the justice at the time of the proceedings was holding the same office as that for which the bond was given. But it is equally possible that he during the year had removed from Franklin to Netawaka township, and vacating the office of justice in the former had been elected- or appointed justice in the latter. But whatever may be the real facts in the case, we cannot go outside the record to indulge in any mere conjectures. Upon the record, as it comes before us, no judgment should have been rendered against the sureties, for they never became bounden for the acts of any justice of the peace of Netawaka township. The same considerations do not apply to the justice, Andrew Neal, for whether he ever gave a bond or not, he acted • as justice of the peace of Netawaka township, and cannot now avoid responsibility for his acts as such justice. As to him, it seems to us that there are really but two questions, and they arise on the admission of two instruments in writing. The first was an official receipt for money given by the justice, Neal, to a constable, and signed “A. Neal, J. P.” The admission of this was objected to as not properly authenticated, and not the best evidence. The objection was not well taken. The signature of the justice with his official title constituted sufficient authentication, and his receipt to the constable was as good evidence of the fact as a minute on his docket that he had received the money. The other document was an assignment of the claim against the justice by the party who originally held it to the plaintiff. This also was objected to as not properly authenticated. There was no proof of its execution. Now the de fendant in error insists that the objection did not raise the question of the execution of the assignment, as it was not an instrument that required any acknowledgment or attestation. Waiving any determination of this question, we think the error, if error there was, not sufficient to compel a reversal. Outside of this assignment there was sufficient evidence of Keller’s ownership of the claim, and not a particle of conflicting testimony. If this assignment had not been admitted, the finding of the court on this question could scarcely have been other than it was. We think therefore that the judgment must be affirmed as to Andrew Neal, and reversed as to the other plaintiffs in error, and remanded with instructions to grant a new trial as to them. The costs of this court will be divided between Andrew Neal and the defendant in error. All the Justices concurring.	[ -112, 104, -40, -34, 74, 96, 46, -104, 107, -15, -95, 115, -85, -125, 17, 115, 119, 121, 17, 106, -41, -73, 115, 75, -16, -78, -53, -51, -79, 76, -10, 87, 12, 48, 10, -35, 102, -120, -27, -44, -50, 5, 42, -19, -33, 104, 48, 61, 80, 73, 117, -102, -9, 46, 28, 103, 105, 44, 75, 45, 80, -16, -99, -49, 79, 20, -111, 38, -100, 7, -24, 62, -104, 117, 1, -24, 122, -90, -122, -12, 45, -103, 40, -30, 98, 17, 117, -17, -96, -56, 46, 90, -105, -26, -106, 88, -29, -83, -74, -99, -3, 16, 7, 124, -22, 5, 25, 44, 7, -54, -58, -95, -115, 60, -98, 3, -17, 41, 48, 81, -51, 102, 92, 101, 56, 19, -113, -48 ]
The opinion of the court was delivered by Brewer, J.: This was an action on an undertaking given under section 511 of the code of civil, procedure. (Gen. Stat., p. 730.) A demurrer to the petition was overruled; and this is the first alleged error: the undertaking is copied in the petition, and the specific objection is, that it does not show that the party for whom it was given was actually in jail. The language of the statute is, “any person imprisoned under the provisions,” etc., while the recital of the undertaking, as well as the averment of the petition, is—“has been arrested and is now in the custody of the sheriff,” etc. In support of this objection the case of Lytle v. Davis, 2 Ohio, 277, decided' in 1826, is cited. And this case it must be conceded is very strongly in point. In it it was held that a bond given for prison limits was void unless the defendant was actually in prison, and that fact was recited in the bond. The binding authority of this decision is invoked upon the rule laid down in Bemis v. Becker, 1 Kas. 248, that where one state boi'rows or adopts a statute of another, it is presumed to take it with the construction placed upon it by the judiciary of that state. That rule is hardly applicable in this case, for the statute then in force in Ohio differs materially from ours, as well as from the later statute of that state. True, there is a general similarity, as there is between the statutes of many states bearing upon this subject-matter, or indeed upon almost any given subject; and the word “imprisoned,” upon which special reliance was placed by the court in that case, appears in our statute as well as in the later one in Ohio. But there is no such identity, actual or substantial, that it can bg presumed that our legislature simply adopted the old Ohio statute, or intended to transfer that statute, with the constructions it had received, to this state. Again, the construction of a single clause or section is often affected by the general system of the law of which it is a part. And it will be remembered that there has been going on for years a wonderful change in the provisions of law concerning imprisonment for debt. At the time of that decision the law still allowed imprisonment for debt, though it must be conceded it was departing from the hardships of the common law. Section 15 of art. 8, of the Ohio constitution of 1802, was then in force as follows: “The person of a debtor, where there is not strong presumption of fraud, shall not be confined in prison, after delivering up his estate for the benefit of his creditor or creditors, in such manner as shall be prescribed by law.” Now neither Kansas nor Ohio tolerates imprisonment for debt except for fraud. Const. Ohio, § 15, art. 1; Const. Kansas, Bill of Rights, § 16. This practically excludes imprisonment except as a punishment for acts criminal, or quasi criminal, and leaves the unfortunate but honest debtor free from any possibility of personal restraint. Now the construction then given to words and phrases in the statutes concerning imprisonment for debt, while perhaps just and fair when considered in reference to the general policy of the law, might be open to severe criticism if insisted upon when used in statutes framed under an entirely different policy. We do not feel therefore bound to follow that decision in the meaning given to the word “imprisoned.” We see no reason why a party should be actually put into a jail, and locked up before he is permitted to avail himself of that statute. The term “imprisoned,” is not generally so limited. Does not the action of false imprisonment lie for any illegal apprehension and detention? Bouvier says in his Dictionary, vol. 1, p. 612, that “as to what will amount to an imprisonment, the most obvious modes are confinement in a prison, or a private house; but a forcible detention in the street, or the touching of a person by a peace officer by way of arrest, are also imprisonments.” It is doubtless true, that there must be an actual arrest and detention; that there is in this respect no mere constructive imprisonment; that as held in the case of Berry v. Adamson, 6 Bar. & Cress. 528, the mere execution and sending of a bail-bond by a defendant on receiving a message from a sheriff that he has a writ, makes no imprisonment. Again, it is a well-known fact that many counties in this state have been at different times without any jail, and special provision is made for confinement in the jail of one county of persons charged with crime in other counties destitute of jails. (Gen. Stat. 532, §16.) But there is no such provision as to persons arrested on civil process. And as counsel pertinently asks, “must the sheriff wait till a jail is erected before he is authorized to accept the bond?” It is made the duty of the sheriff having process against the person “to arrest such debtor and commit him to the jail of the county until he pay the judgment, or is discharged according to law.” (Gen. Stat. p. 728, § 505.) The sheriff is by law the keeper of the jail. (Gen. Stat. p. 530, § 3.) Now from the moment of the arrest until the final discharge, the debtor is in the custody of the sheriff, and is equally in his Custody whether before or after he has crossed the threshold of the jail. What difference then whether the bond be executed before or after he has so crossed? The purpose of the statute was to give to the debtor taken under process the limits of the county in which to labor or carry on business, so as to make the debt and at the same time prevent his going beyond the reach of process and the watch of the creditor. That purpose is accomplished if the debtor is permitted to give bond as soon as taken into custody. We see no good reason for limiting the meaning of the word “imprisoned” to actual confinement in the jail, but think it may fairly be construed as denoting the actual detention by the sheriff under the writ; and when a debtor is so seized and held, it seems to us he may be considered, in the language of the statute, as one “imprisoned under the provisions of this article.” There was no error therefore in overruling the demurrer to the petition. Afterward the defendants filed an answer setting up two defenses, the first specifically alleging that Quinn was not put into jail by the sheriff, and the other alleging a surrender by the sureties to the sheriff. A demurrer to these two defenses was sustained, and this is alleged as error. But counsel in his brief fails to point out wherein he claims there was error other than in the matter already considered by us, and we shall certainly not seek to find errors when counsel has found none. After the demurrer to the answer was sustained, there was no issue of fact to be tried. The judgment will be affirmed. All the Justices concurring.	[ -16, 120, -35, -2, -54, 0, 47, -104, -69, -93, -89, 83, -87, -42, 0, 49, 117, 97, 81, 120, 85, -73, 55, 65, -10, -13, -55, -41, 49, 79, -18, 118, 76, 32, -46, -43, -26, -56, -57, -44, -114, -123, 42, 73, -48, 72, 48, 15, 20, 11, 49, -113, -29, 34, 24, -49, 107, 44, 73, 45, 80, -71, -67, 13, 75, 7, -127, 38, -104, 7, -56, 52, -120, 17, 3, -24, 115, -106, -122, -42, 111, -103, 45, 98, 102, 32, 101, -19, -120, -72, 12, -38, -99, -89, -47, 80, 106, 73, -76, -67, 116, 84, 39, 126, -26, 5, 93, 108, 5, -49, -74, -77, -51, 116, -106, 99, -61, 33, 32, 65, -60, 50, 93, -25, 121, -109, -50, -38 ]
The opinion of the court was delivered by Brewer, J.: In an action before a justice of the peace certain property was attached as the property of the defendant therein. The defendant in error interposed in that action, under and by virtue of ch. 164 of the laws of 1872, as a claimant of the property attached. A jury was demanded to try this claim. After the trial had been progressing for three days, and before its close, the following proceedings were had and entered upon the docket of said justice, to-wit: “Now comes the claimant in person, and by his attorneys Ady & Eeid, and the attachment-creditor in person and by his attorneys C. S. Bowman, A. L. Green and C. C. Nichols, and consent that the cause proceed no further in this court, and that the jury be discharged from further consideration of this cause, and this action be certified to. the district court of this county, there to be tried. All costs of this suit to follow the result of the action. “Ady & Eeid, for Claimant. “C. S. Bowman, C. C. Nichols, A. L. Green, “Attorneys for Defendant. “The above request is hereby granted by this court, and the jury is discharged; and the court adjourns this 20th of July 1875. A. Markwell, Justice of the Peace.” Thereupon the jury were discharged without returning any verdict; and the justice of the peace, without rendering any judgment in said action, and without any appeal being taken by either party, except as by the agreement above set forth, transcribed the proceedings had in his court, and transmitted the same together with all of the files and papers in said action to the clerk of the district court of said Harvey county. "When the case was called for trial in the district court, and after the impanneling of a jury, the plaintiff in error, the attaching-creditor, (and defendant as against the claimant in these proceedings,) objected that the district court had no jurisdiction. This objection was overruled, and judgment rendered, after trial before a jury, in favor of claimant. The creditor now brings the matter here, and alleges as sole ground of error that the district court had no jurisdiction. He claims that this by the statute was a special proceeding authorized to be had only before a justice of the peace; that the act vests no original or appellate jurisdiction in the district court; that no judgment or order was made in the justice’s court, and no appeal taken in the manner provided for appeals from justices courts, and that as it does not appear that either party claimed in his bill of particulars a sum exceeding twenty dollars, and a jury trial was had, no appeal could be taken even by consent. We think the objection not well taken. It may be conceded for the purposes of this case, that this is a special statutory proceeding, designed principally for the protection of the officer; that it can be commenced only before a justice of the peace; that it is not conclusive upon the rights of the parties; (Armstrong v. Harvey, 11 Ohio St. 527;) and that no provision is made for appeal; and still we think the jurisdiction of the district court must be sustained. It was a trial of the right of property, a matter which could by suit be tried in the district court. True, the proper method to bring this question before that court was by an action of replevin, but still the subject-matter was one of which that court could take cognizance. No objection was made to the form of the proceeding. The paper filed by the claimant, though not a technical petition in replevin, contained the essential facts, that he claimed certain property which the attaching-creditor had through his process, and by a constable, taken possession of. By their written consent to a trial and appearance in the district court, the parties submitted themselves to its jurisdiction. But to sustain jurisdiction, all that is essential is, to show that the tribunal had jurisdiction of the person, and of the subject-matter. The district court is one of general original jurisdiction, and if parties come voluntarily into that court to litigate a matter of which it could take cognizance, and which is within the scope of its jurisdiction, and make no objection to the form of the proceedings, they will not be heard to say that the court had no jurisdiction, or that its judgment is not binding. Reedy v. Gift, 2 Kas. 392; North Mo, Rld. Co. v. Akers, 4 Kas. 453; Carver v. Shelly, 17 Kas. 472; Besher v. Richards, 9 Ohio St. 495. Suppose in this ease, without any preliminary proceedings before the justice, the claimant had filed his statement in the district court, that he claimed the property, and that the constable had it; and the constable had, without process, voluntarily appeared in that court, and gone to trial upon such claim: could he be heard to say, after the trial had commenced, that the court had no jurisdiction? Clearly not. Nor do the prior unfinished proceedings before the justice prevent the district court from obtaining jurisdiction. The judgment will be affirmed. All the Justices concurring.	[ -16, -18, -23, 63, -70, 96, 34, -104, 97, -93, 39, 87, -87, -53, 1, 121, 114, 45, 85, 122, 86, -74, 23, -37, -46, -77, -101, -59, -77, 105, -25, -42, 76, 32, 66, -43, 70, -56, -123, 92, -114, -127, -87, 108, -39, -88, 48, 59, 2, 75, 85, -82, -29, 42, 61, -29, 77, 45, -55, 45, 80, -8, -116, 13, 111, 3, -109, 102, -98, 3, 72, 62, -112, 49, -128, -24, 122, -106, 6, -44, 37, -103, 40, 102, 102, 1, 61, -17, -88, -87, 15, -66, -97, -25, -108, 88, 107, 9, -74, -99, 111, 80, -121, 124, -21, 5, 29, 108, 7, -54, -106, -73, -49, 50, -104, 3, -21, -93, -80, 97, -51, -32, 92, 103, 59, -101, -113, -72 ]
The opinion of the court was delivered by Brewer, J.: The only questions in this case are, whether under the stock-killing law of 1874 proof of demand is essential to a recovery, and if so whether there was such proof. .The first question must be answered in the affirmative, and the second in the negative. The statute is a stringent one, and imposes new burdens upon railroad corporations; and he who would avail himself of its benefits ought to bring himself clearly within its terms. The language of the second section is, “In case such railway company shall fail for thirty days after demand to pay the full value,” etc., “such owner may sue and recover the full value,” etc., “together with a reasonable attorney-fee.” And the third section specifies upon whom the demand may be made. Nor is it a fair construction of the statute to hold, that the first section renders the company liable for the value, and that the steps prescribed in the second section may be disregarded unless attorney-fees are sought to be recovered in addition to the value. The whole act should be construed together, and the conditions of liability prescribed in one section applied to‘ the entire relief obtainable under the act. McNaught v. C. & N. W. Rld. Co., 30 Iowa, 336; Cole v. C. & N. W. Rld. Co., 38 Iowa, 311. The only evidence tending to show a demand in this case is in the following testimony of the plaintiff: “I am the plaintiff in this case, and had two mules killed by the Kansas Pacific Railway Company on Saturday, either the 23d or 24th of October. I called on Mr. Johnson, the railway agent, and he told me I had better get some one to appraise them. The section-boss selected Mr. Johnson,.and I selected Mr. Entsminger, but they could not agree upon the price of the mules, and so called on Mr. Payne, and they placed the value at $135 for the two.” Now under a statute like this, imposing an additional burden, and conditioning that burden upon a demand, it seems to us there should be proof of a direct demand. (See cases cited, supra.) And while of course slight evidence will sustain the finding of a court, or the verdict of a jury, yet in this evidence we see no allusion to a demand. All that appears is, that the plaintiff counseled with an agent of the company, and was advised as to the course he should pursue. It does not appear directly or inferentially that the plaintiff demanded payment. If the fact existed, the witness was present, and the proof was easy. The omission of such proof was fatal. The motion for a new trial, and the petition in error, allege that the finding and judgment were contrary to law. The party must rest his case upon this statute, for there is in his bill of particulars no allegation of negligence, and no evidence of any negligence except in the omission to fence. The judgment will be reversed, and the case remanded for a new trial. All the Justices concurring.	[ -14, 122, -4, -99, 58, 96, 42, -102, 65, -31, 39, 83, -19, -62, 1, 113, -26, -67, -43, 42, 86, -89, 71, -22, -41, -77, 121, -59, 53, 75, 100, 85, 77, 32, 106, -43, -30, -22, 81, 30, -114, 5, -87, -24, -37, 104, 48, 107, 70, 66, -79, -50, 115, 46, 24, -57, 77, 46, -21, 41, -32, 121, -70, -49, 63, 22, -111, 32, -72, 101, -56, 14, 24, 49, 11, -24, 122, -92, -122, 84, 45, -119, -84, 98, 103, 33, 21, -53, 12, -120, 46, -104, -113, -26, 116, 88, 35, 9, -106, -35, 52, 0, -121, -2, -2, 21, 93, 116, 5, -113, -74, -78, -65, 103, -102, 91, -61, -95, 50, 113, -49, -94, 92, 7, 126, -101, -113, -68 ]
The opinion of the court was delivered by Brewer, J.: This was an action to recover rent. The plaintiff’s assignor testified to a full, unconditional contract of lease, delivery of possession to, and occupation by, the tenant. The jury found in favor of the plaintiff! Upon this therefore the judgment would have to be sustained. The other matters upon which the defendant, plaintiff in error, claims that the judgment was wrong are these: The house, the subject of the contract, was upon the military reservation of Fort Leavenworth. It was built in 1863 by the assignor of the plaintiff, Henry Kuhn, and occupied by him continuously until turned over to the defendant in October 1873. It was built under a permit from the military authorities. And the defendant claims that the license granted by the authorities had been revoked, Kuhn notified to remove the building, and that failing so to do, the building had become the property of the United States. Upon the question of this license, the court left it to the jury to say whether the license was to continue as long as Kuhn was in the employ of the government, during the mere pleasure of the authorities, or as long as the building should last. Counsel claims that the court should have construed the license itself, as a question of law, and that its failure so to do was error compelling a reversal. As the record now stands it seems to us the action of the court in this respect is not so preserved that we can declare there was error. At the close of the charge the record shows that the court asked the plaintiff if he had any exceptions to it, and was answered in the negative. A like query was put to the defendant, and was answered thus: “Only in the construction of the license; I take it that it is a matter for the court to construe the license —for the court to settle, and not the jury. From the very nature of the case, it must be such a permission as must be construed by the court as a matter of law, and the court should determine the character of the license itself.” Whether the court after this claim of counsel was made recognized its correctness,- and gave further charge to the jury, the record does not disclose. It nowhere appears that all the instructions are preserved. Further than that, the record reads: “To the refusal of the court to give instructions asked explaining the license, defendant excepted at the time, and excepts.” But the record contains no instructions so asked and refused. We are not advised by anything in it what construction the learned counsel claimed to the district court should be put upon the license; nor does it affirmatively appear that the court did not respond favorably to whatever claim counsel made in this respect. How then can we hold that it erred ? Outside of this question of practice, we concur in the main with the views expressed by the counsel for plaintiff in error in their brief. Mr. Kuhn by his permit obtained no interest in the soil. The building was personal property belonging to him. All his rights arose by virtue of the license; and he who claims rights through a license must show the terms and extent of that license, or it will be held to be merely one revocable at pleasure. The original permit was not in evidence; but in lieu thereof was a letter from Gen. Easton, the chief quartermaster, written sometime two years thereafter, stating that he had at the time given Mr. Kuhn a permit to build the house. There is nothing in that, or in any of the testimony, from which it could be inferred that the license was other than one revocable at pleasure, certainly at least after the termination of Kuhn’s employment in the government service. Upon the revocation of a license, the building does not become forfeited to the land-owner, but the licensee has a reasonable time in which to remove it from the prem ises. What is such reasonable time, is a question of fact for the jury, and may vary with the size and condition of the building to be removed, the time of the year, the condition of the weather, the distance to be moved, etc. The landowner cannot himself prescribe the time within which the removal must be made, so as to preclude all inquiry as to its reasonableness. If the licensee fails to remove the building within such reasonable time, he will lose his rights in it, and it will become forfeited to the land-owner, unless such failure to remove arise from some fault of the land-owner. Of course, if the latter interfere directly or indirectly to prevent a removal, he can-claim nothing on account of the failure to remove. Notwithstanding a revocation of the license, and notice to remove, the land-owner may consent thereafter to the buildings remaining upon the land, and to its lease, or other use for the benefit of the licensee; and whoever leases the building and obtains possession thereof under representations that such consent has been obtained, will be liable to the licensee for the rent, although no such consent was in fact obtained, until at least such reasonable time after the latter has ascertained the mistake as will enable him conveniently to obtain possession and remove the building. It may possibly be that the last proposition would uphold the judgment in this case upon the testimony, giving credit in accord with the verdict of the jury to the testimony of Kuhn rather than to that of Keeling, or at least justify a judgment for* a portion of the rent sued for; but we need not definitely determine that question, as the matters heretofore noticed are decisive. Though to avoid any misunderstanding it may be proper to say, that even according to Mr. Kuhn’s testimony the time for which he has recovered rent was ample to have enabled him, after the discovery of the mistake, to have asserted his rights to the possession as against Keeling, and that any further rights he may have in the premises, if any, are between him and the government. The judgment will be affirmed. All the Justices concurring.	[ -79, -6, -35, -18, -102, 96, 40, -40, 96, -127, 39, 83, -19, -38, 20, 105, -9, 105, 81, 107, 65, -77, 7, 67, -42, -13, -45, -43, -80, 76, -12, 87, 76, 32, -62, -41, -26, -61, -43, 92, -114, -123, 8, 76, -47, 64, 52, 91, 86, 15, 1, -113, -13, 46, 25, -61, -87, 60, -53, 61, -15, -72, -97, 13, 105, 7, -79, 54, -36, 71, 120, 12, -110, 49, 1, -8, 115, 52, -122, 124, 71, -101, 41, 102, 102, 32, 73, -21, -20, -71, 46, -104, -115, -90, -107, 88, 75, 32, -74, -35, 116, 48, 7, 124, -26, 21, 93, 108, 3, -113, -42, -75, 15, 120, -78, -127, -1, -125, -79, 112, -49, -92, 92, 98, 115, -101, -113, -4 ]
The opinion of the court was delivered by Horton, C. J.: On the 10th of March 1877, the motion for a new trial in this action was overruled by the district court, and Karr, the defendant in the court below, was given thirty days in which to make a case for this court. • What purports to' be a “ case-made/’ in the proceedings before us, is signed by the judge, and dated April 13th 1877. But the paper is not attested by the clerk, nor is the seal of the court attached. Hence the same is not authenticated as required by the law. (Sec. 1, ch. 114, Laws of 1871.) We cannot be unmindful of the behests of the law, nor have we any authority to dispense with the statutory provisions of authentication required to a case-made. The paper presented us is not sufficiently authenticated to constitute it a case-made. (Hodgden v. Comm’rs of Ellsworth Co., 10 Kas. 637.) Nor can we accept the case-made as a bill of exceptions. There is nothing in the record to show the paper was filed in term-time—nothing to show that the court was in session on April 13th; and the journal entries of the court, outside of said paper, make no mention of any bill of exceptions being tendered, or allowed, or filed. We cannot presume, in the absence of the proper evidence, and when the record shows that thirty days were given to make a case, that any bill of exceptions was taken, notwithstanding the paper is denominated both a case-made and a bill of exceptions. It is neither. Under such circumstances it is impossible for us to examine the action of the district court in refusing to suppress certain depositions, in admitting alleged incompetent evidence, and in directing the jury, as there is, in legal contemplation, no case-made, bill of exceptions, or other record here. The case will be dismissed. All the Justices concurring.	[ -80, 120, -4, -65, -86, 97, 34, -102, -63, -95, -89, 115, -83, 82, 20, 117, 119, 15, 85, 107, -52, -73, 22, 67, -78, -109, -37, -41, -79, -23, -10, -34, 76, 48, -54, -43, 71, -56, -63, 16, -50, -120, -87, -54, -48, 72, 52, 125, 118, 11, 113, -2, -13, 46, 26, -61, -23, 45, 74, 57, -48, 113, -98, -49, 77, 2, -77, 102, -104, 5, -8, 38, -108, 17, 1, -4, 114, -90, 6, -12, 107, -85, 8, 118, 98, 1, 109, -25, -88, -120, 47, 126, -101, -90, -112, 8, 106, 41, -74, -103, 53, 48, 38, 126, -26, -44, 24, 36, 0, -57, -48, -101, -97, 52, -110, -65, -21, -94, 16, 69, -51, -10, 92, 101, 19, -71, -114, -98 ]
The opinion of the court was delivered by Valentine, J.: This was an action brought by the Chicago Lumber company against the firm of Short & Coats and F. W. Sturges, to recover for building materials sold by the plaintiffs to the defendants Short & Coats, and used in the construction of a building belonging to the other defendant, F. W. Sturges; and also to foreclose a mechanics’ lien. Judg ment was rendered in favor of the plaintiffs and against the defendants, and the defendant F. W. Sturges, as plaintiff in error, now brings the case to this court. The jury before whom the case was tried, found among other things that the building (in the construction of which said building material was used) was completed “on or about the 5th day of April, 1879.” The plaintiffs’ mechanics’ lien was filed on the 18th day of April, of that year.' The jury also found, as facts, that the building material was used in the construction of the building under a contract between Sturges and Short & Coats; that the plaintiffs furnished the building material to Short & Coats, .with the knowledge that it was to be so used; and that the plaintiffs did not furnish the building material upon the)general account or credit of Short & Coats. The plaintiff in error claims that the finding of the jury that the building was completed “on or about the 5th day of April, 1879,” is so indefinite as to be a nullity in law, and that it is not sustained by the evidence. This position of the plaintiff in error, we think, is not tenable. We think the nnding is sufficient, and founded upon sufficient evidence. Even if the building had been completed as many as forty-seven days earlier or as many as thirteen days later than the 5th day of April, 1879, still, the mechanics’ lien, filed, as it was, on the 18th day of April, 1879, would be valid; and the evidence, as we think, shows that the building was completed (so far as the contract upon which this building material was furnished was concerned) on or about the 5th day of April, 1879. There was some confusion with regard to the evidence upon this subject; and it is possible that the building may have been completed much earlier or much later than the 5th day of April, 1879, but we cannot say from the evidence that it was; and therefore we cannot say that the finding was not sustained by sufficient evidence. Indeed, we think there was sufficient evidence to sustain the finding. The plaintiff in error also claims that the finding of the iury that the plaintiff knew that the building material was to be used in the construction of Sturges’s building, and the other findings of like character, are not sufficient to sustain the judgment. He claims that, in order to enable the plaintiffs to procure a mechanics’ lien, the building material should have been sold under a contract or agreement, or understanding that the material should be used in the construction of the building. This claim is probably correct; but we think the building material was sold under at least an implied contract or agreement, and under an express understanding that it was to be used in the construe-. tion of the Sturges building; and this is certainly sufficient, and all that should be demanded. The evidence shows that when the building material was purchased by Short & Coats, they told the parties selling the same that it was to be used in the construction of the Sturges building, at Scandia; and the parties selling the building material sold the same with that understanding and for that purpose. We think that the findings of the jury should have been more definite, and should have left less for construction and interpretation; but still we think they are sufficient to sustain the judgment rendered upon them. The defendants in error, the Chicago Lumber company, have filed in this court a cross-petition in error, claiming that the court below erred in refusing to render judgment in their favor and against the defendants below for interest, found by the jury to be due on their claim for the said building material; and it seems to us that in this respect the court below did err.. The jury found that there was due on the claim for building material, $381 as principal and $40.80 as interest; and calculated the interest from the date of the last item of building material furnished by the plaintiffs below to the defendants Short & Coats; and it seems to us that this was correct. The plaintiffs claimed interest in their petition ; and the evidence seems to show that they were entitled to it. The evidence seems to show that the debt for the building material was due just as soon as the building material was delivered by the plaintiffs to Short & Coats; and if so, the plaintiffs were entitled to interest from that time. (Comp. Laws 1879, p. 509; Gas Co. v. Schliefer, 22 Kas. 468.) The judgment of the court below will be modified, by increasing it so as to include the interest found to be due by the jury. All the Justices concurring.	[ -16, 122, -4, -99, 8, 104, 42, -40, 84, -95, 53, 87, -115, -61, 92, 113, -41, 125, 84, 122, -59, -93, 19, 43, -110, -77, -13, -59, -71, 76, -11, 94, 12, 32, -54, -107, -26, -64, 73, 92, -114, -123, -88, -18, -39, 80, 52, 91, 100, 74, 113, -86, -5, 46, 28, -53, 40, 56, 109, 41, -16, -15, -126, -123, 95, 22, -77, 102, -98, -57, 104, 12, -104, 53, 4, -23, 113, -76, -122, 124, 33, -87, 8, 98, 99, 0, 13, -17, -4, -104, 62, -2, -99, -89, 48, 25, 11, 45, -66, -97, 121, 16, 54, 126, -26, -35, 29, 108, 7, -121, -10, -78, -97, 58, -104, -109, -50, -125, 50, 113, -113, 40, 92, 36, 49, -101, -114, -22 ]
The opinion of the court was delivered by Brewer, J.: This was an action brought by plaintiff in error, plaintiff below, against the defendant, to recover the value of a certain mare alleged to have been run over and killed by an engine belonging to defendant. The case was commenced before a justice of the peace, and a bill of particulars filed. The defendant making no appearance before the justice, judgment was entered in favor of the plaintiff. Defendant appealed to the district court, and the case was there tried by the court, without a jury. The defendant filed no answer, and the case was tried upon the original bill of particulars filed before the justice. Upon the trial the ■court found for the defendant, and plaintiff now brings error to this court. But a single question needs to be considered, for in that we think the district court erred, and on account of that a new trial must be awarded. The substantial portion of the bill of particulars is as follows: “That on or about the 26th day of September, 1880, a locomotive engine attached to a train of cars and owned by the said railroad company, the above-named defendant, and operated by its employés, did carelessly and negligently run against and kill a certain mare, the property of the aforesaid plaintiff, R. A. Stewart, and of the value of one hundred dollars ($100), at a point about one and a half miles west of Wabaunsee station, on said railroad. Plaintiff further says, that at the time, and place where said mare was killed the said railway was not fenced by any kind of a fence whatever, and that on the 28th day of October, 1880, he made a legal demand for the payment for said mare upon said railroad company, which payment has been refused.” On the trial, after testimony showing the killing of the animal by the engine of defendant, and after testimony tending to show that the animal was struck and killed at or near a public crossing, plaintiff offered testimony to prove that there was negligence in the management of the train by employés of defendant, and that in consequence of such negligence the animal was struck and killed. This testimony was objected to, and the objection was sustained. This ruling of the district court seems to have been upon the theory that the action was brought under the stock law of 1874, and that under that law the question of negligence in the actual management of the train is unimportant, the basis of recovery being the lack of a fence to keep the animal off from the track. It is unquestionably true that, if there was nothing in the bill of particulars showing a right of recovery independent of that statute, the question of the manner of the management of the train would be irrelevant and immaterial. If, as in many cases which have heretofore come to this court, the only charge was that the railroad track was unfenced, the ruling of the district court would have been correct. But the bill of particulars charges negligence on the part of the defendant in the management of the train. This, independent of the question of fence, is a ground of recovery. A party whose animals are killed by the engine and cars of a railroad company may charge in his petition that the injury was caused by the negligence and wrong-doing of the defendant in the management of the train, and also that the track was unfenced at the place of injury and where the animals got upon the track, and upon the trial he may prove either or both of these allegations. There is no inconsistency between the two allegations; both may be true — the road may have been unfenced, and the train hands may have managed the train negligently and carelessly. Either will make the defendant liable. Both may be charged in the same petition, and then either or both proven. Whatever criticism may be placed upon the form in which the negligence is charged, it must be borne in mind that no objection was made to this bill of particulars. The defendant went to trial without any motion, demurrer or answer, and hence, if the fact of negligence was distinctly charged, it is .enough. (Rly. Co. v. Kelley’s Adm’r, 23 Ind. 133; Rly. v. Selby, 47 Ind. 471; Fort Wayne v. DeWitt, 47 Ind. 391; Rly. Co. v. Matthias, 50 Ind. 65; Chiles v. Drake, 2 Metc. [Ky.] 146; Carmanty v. M. G. Rly. Co., 5 La. An. 703; A. T. & S. F. Rld. Co. v. Edwards, 20 Kas. 531.) For this error in the ruling of the district court, the judgment must be reversed, and the case remanded for a new trial. All the Justices concurring.	[ -14, 126, -40, -65, 42, 96, 34, -38, 65, -127, -91, 83, -83, -45, 1, 33, -30, -83, 85, 43, 86, -77, 83, -30, -109, -13, 51, -59, -77, 76, -28, -57, 13, 32, 74, 85, -26, -54, -63, 80, -114, 52, -71, -24, -37, -24, 48, 123, 22, 79, 49, -114, -21, 46, 92, 67, 109, 40, 123, 45, -48, 113, -118, -123, 109, 2, -78, 102, -98, 35, 72, 60, -112, 49, 1, -8, 114, -92, -122, -44, 97, -103, 12, 102, 103, 33, 61, -49, -96, -88, 39, -34, -113, -89, -112, 93, 75, 13, -106, -99, 48, 82, 7, 124, -18, -107, 93, 52, 1, -49, -106, -77, -49, 36, -106, 3, -53, -79, 52, 117, -100, -112, 93, 5, 122, -101, -97, -66 ]

Subsets and Splits

No community queries yet

The top public SQL queries from the community will appear here once available.