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10 70M. John W. Russell vs. Mary E. Seery, Adminis tratrix of the Last Will of James Seery, De- Error from Shawnee County. REVERSED. Syllabus. By thx Coubt. Johnston, J. 1. Awards of arbitrators made in pursuance to the statute are to be liberally construed. and should not be set aside upon any grounds other thin those named In the statute. 2. Error of j udgmen t by arbitrators as to the effect or weight of evidence is not a ground for setting aside an award. 3. Where the contending parties expressly agree that no oaths shall be administered to arbitrators, and that the testimony of wit nesses unsworn shall be received, neither of them will be allowed to make the omission to administer oaths to arbitrators and witnesses a ground of objection to the award after a re sult adverse to him has been reached. All the justices concurring. A true copy. Attest: C. J. BROWN, seal Clerk Supreme Court 6984. The Bolen Coal Company vs. The Whittaker Brick Company. Error from Wyandotte County. AFFIRMED. Syllabus. , BythxCoubt. Johnston, J. L Where a creditor splits up a running ac count which constitutes a single cause of ac tion and recovers upon a part of the same, such adjudication constitutes a complete bar to a recovery on the remaining portion of the account. 2. In an action before a justice of the peace upon a verified account no bill of particulars or verified dental was filed by the defendant. Held, That while the correctness of the ac count was admitted by the defendant, it did not prevent him from setting up and establish ing the defense of ret adjudicata. All the justices concuirlng. A true copy. Attest: C J. BROWN, seal Cierk Supreme Court 6991. George W.'Frey vs. Amon Butlerand George N. Kingsbury. I I Error from Norton County. REVERSED. Syllabus. BythkCoubt. Johnston, J. Unless a debtor has by express declaration or unequivocal act relinquished the right to claim an exemption of personal property seized upon execution, he may make the claim at any time before the day of sale ; and the fact that a debtor who was entitled to claim two horses only claimed one of them at the time of levy, and informed the officer that be would not claim another 'at the present time,'' will not constitute a waiver nor preclude him from claiming another at any time prior to All the justices concurring. A true copy. Attest: C.J.BROWN, skal Clerk Supreme Court 6990. The Chicago Lumber Company vs. E. J. Allen, E. G.Allen et al. Error from Norton County. REVERSED. Syllabus. BythxCoubt. Johnston, J. L Under the mechanics' lien law as It ex isted in 1888, if the consideration agreed to be paid by the owner of land to a contractor for the construction of a building on such land is insufficient to pay for all the labor and ma terial expended thereon, any sub-contractor who has obtained a legal Hen against the prop erty Is entitled to a pro rata share of the con tract price, which lien may be enforced against the owner's property, although the owner may have paid thj full amount of the contract vice to the contractor or to a part of the pub-contractors. 2. Where some of the material findings of the court are Inconsistent with each other, and not In harmony with the testimony, and It is manifest that the case was tried upon an incorrect theory, the findings and judgment will be set aside and a new trial granted. All the justices concurring. A true copy. Attest: C. J. BROWN, fsiALl Clerk Supreme Court. 6994. John B. Lafeyth vs. The Emporia National Bank. Error from Lyon County. REVERSED. Stllabus. BythxCoubt. Johnston. J. B who owned a herd of cattle, gave to L. a nrss mortgage upon louneen oi uem, iau wi a bank ie gave another mortgage on some oli these as well as upon the remainder of the herd. Both mortgages were duly recorded, the bank's debt being overdue. And supposing that Ita mortgage covered the whole of the cattle and was superior to all other liens.lt agreed with B. that he should make a public sale of them, and that the proceeds should be applied In payment of the mortgage debt which It held against B. The bank sent one of its office's to the sale to assist tt, but mainly to protect the interests of the bank, aa it claimed the cattle under 1U mortgage, and al the sale two of the cattle Indaded la iha mortgage to L. were sold and the proceeds of the sale taken to and retained br the bank. Held, That the action of the bank In aiding ana assisting a. in me saie made it liable to L. as for a conversion of the two animals wrongfully sold. All the justices concurring. A true copy. Attest: C. J. BROWN, sxal Clerk Supreme Court 7014. The First National Bank of Clay Center, Kan sas, vs. S. D. Beegle. Error from Clay County. AFFIRMED. Syllabus. By thx Coubt. Johnston, J. A crop of corn was planted and grown upon mortgaged land by the mortgagor. In ac cordance with a judgment of foreclosure the land was sold without reservation on the last day of September. Four days before the sale of the land the mortgagor sold the crop of corn to another. The corn was then mature, but there had been no physical severance of the same from the land at the time of the ju dicial sale. Held, That the vender of the mortgagor was entitled to the crop, and that the same did not pass with the soil to the pur chaser of the land. Held, further, That tho sale of the corn by the mortgager constituted a constructive severance of the same from the land. All the justices concurring. A true copy. Attest: C. J. BROWN, sxal Clerk Supreme Court 6998. J. F. Kingsley vs, R. M. Purdom. Error from Allen County. AFFIRMED. Syllabus. By thx Court. Allxn. J L A principal debtor, whose debt is secured by mortgage on property owned by another person, cannot by purchase of the obligation given to secure the payment of the debt and causing the same to be assigned to his agent, foreclose the mortgage and subject the mort gaged property to the payment to him of the debt Such attempted purchase operates as a payment of the debt 2. The evidence In this case supports the findings of fact made by the court All the justices concurring. A true copy. Attest: C.J.BROWN, skalI Clerk Supreme Court 7002. O. F. Roe vs. Adella Roe. Error from Montgomery County. REVERSED. Syllabus. By thx Coubt. Allxn, J L Where a husband obtains a valid decree of divorce from his wife, in another state, and no order Is made with reference to alimony, or a division of the property of the parties, the wife cannot long afterwards, In an action brought in this state by her to obtain a divorce and alimony, obtain a decree for alimony alone in the absense of any showing that the law of the state where the divorce was granted is different from that of Kansas. 2. The final judgment In an action granting a divorce settles all property rights of the parties, and Is a bar to an action af terward-t brought by either party to determine the question of alimony, or any property rights which might have been settled by such judg ment All the justices concurring. A true copy. Attest: C. J. BROWN, sxal Clerk Supreme Court 7012. The Missouri Pacific Railway Company vs. J. A. Yawger. Error from Rush County DISMISSED. Syllabus. By thx Coubt. Allxn, J Chapter 245 of the laws of 1889, deprives this court of jurisdiction to review an order made by a district court on a motion to re-tax costs where no other matter Is brought here for re view. Horton, C J., concurring. Johnston, J, dissenting. A true copy Attest: C. J. BROWN, sxal Clerk Supreme Court 703a The St John & Marsh Company vs John G. CornwelL Appeal from Stafford County. REVERSED. 8YLLABUS. BY THX COUBT. ALLXNj. 2. An agent of a non-resident corporation having general charge of its local business in a Kansas town, has no Implied authority to collect debts due his principal by a contract for his own personal board, and a person ow ing such principal a debt who furnishes the agent board, under an agreement that such agent shall give blm credit for the amount thereof on the principal' debt does so at his own risk. 1 Where nnder such a contract the agent gives the debtor credit on the books of the principal for parts of his board and charges such amounts against himself, and deducts the Min from bis salary, and the credit arc made known to the principal, who makes no objection thereto, or inquiry concerning the same, these facta alone do not amount to a rat ification of the agent's unauthorized contract binding the principal for the amount due from the agent for board and not so credited. All the justices concurring. A true copy. Attest: C. J. BROWN, sxal Clerk. Supreme Court 9439. In re John E. Carr. Original proceeding in habeas corpus. PETITIONER DISCHARGED. Syllabus, By thx Coubt. Allxn, J. Chanter 127. of the laws of 1877, does not au thorize a survey by order of a district court of that part or a mine wmcn is jocatea oeyona the state line, in the state of Missouri, even though the only means of access thereto la by a deep shaft located in Kansas. Horton, C. J., concurring. Johnston. J., concurring specially. A true copy. Attest: C.J.BROWN, skal Clerk Supreme Court 6826. The Atchison, Topeka & 8anta Fe Railroad Company, and The Southern Kansas Kail way Company vs. W. M. Arnold and S. M. Ar nold. Error from Sumner County. REVERSED. Syllabus. BythxCoubt. , Allxn, J. Plaintiffs owned lots fronting on W. avenue 150 feet from First street Defendants lawfully constructed their railroad along F. street crossing W. avenue. Under direction of the city authorities defendants graded W. avenue, in front of plaintiffs premises, as directed by the city engineet. Held, That defendants are not liable to piaintins for injuries to tneir property caused by such grading. ah me justices concurring. A true copy. Attest: C J. BROWN, skal Clerk Supreme Court 6881. Scott E. Poor vs. M. M. Tuston, et al. Error from Dickinson County. REVERSED. Syllabus. BythxCoubt. Allxn. J Case reversed on the authority of Muse vs, Wafer. 29 Kas., 279. All the justices concurring. A true copy. Attest: C. J. BROWN, skal Clerk Supreme Court 6848. The City of Topeka, et al vs. D. W. Bout well. Error from Shawnee County. REVERSED. Syllabus. By thx Coubt. Allxn, J 1. Where pertinent questions of fact are stated In writing and handed to the court by a party at the conclusion of the testimony to be submitted to the jury for their findings thereon, It is error for the trial court to' refuse to submit them. 2. The city council of the city of Topeka has the power by ordinance to require the keepers of boarding houses, restaurants and hitols to furnish the street commissioner the name of persons liable to poll tax, boarding or lodging In their houses, and to Impose a flntffor refusal to d i so. a A judgment duly rendered by the police court of a city cannot be held void because of defense of which the prisoner did not avail himself. i. Ordinance No. 91 of the city of Topeka, approved May 12, 1870, permitting prisoners committed to the city prison for the violation of a by-law or ordinance of the city, necessary for the preservation of order and the welfare of society, to be employed by the city marshal at labor either on the streets or public work of the city, or In a public or private place, being credited l a day on the judgment for each day's work performed, Is not la conflict with Sec. 6 of the bill of rights of the constitu tion of the state, or article 13 of the constitu tion of the United States prohibiting slavery and involuntary servitude. 5. The marshal and policeman of a city, and any person aiding and abetting them, are liable in damages for unnecessary cruelties and indignities Inflicted by them on prison ers in their charge. Horton, C. J., and Johnston, J, concurring specially. Allen, J., dissenting from 4th par. of syllabus A true copy. Attest: C. J. BROWN, sxal Clerk Supreme Court 6979. L. M. Hlller vs. The Wichita Overall and 8hirt Manufacturing Company. Error from Cowley County. REVERSED. Stllabus. BythxCoubt. Allxn, J L The fact that a debtor voluntarllTsecures bona fide debts due to some of his creditors, by chattel mortgage. Is not alone sufficient to support an attachment against hla property, on the ground that he baa disposed of his property with the Intent to hinder and delay hla creditors. l Where an attachment is Issued on nego tiable promissory notes not due, It is error for the court to enter judgment thereon before the last day of grace. All the justices concurring. A true copy. Attest: C. J. BROWN, sxal Clerk Supreme Court 6D83. W. A. Erving vs. The Phelps & Blgelow Wind mill Company et al. Error from Kiowa County. REVERSED. Syllabus. BythxCoubt. allxn. J. Where a party seeking to obtain foreclosure of a mechanic's lien, makes service by publi cation on the parties who appear from the records to be the holders of prior mortgages, and where the first mortgage Is owned by a person whose assignment has not been placed on record, and on application of the second mortgagee, before any sale of the encumbered premises, the judgment is opened and such second mortgagee let in to defend, and after ward the holder of the first mortgage moves for leave to answer, and also leave to inter plead, and the court grants leave to Inter plead, but refuses leave to answer, and after ward revokes the order granting leave to Interplead, and refuses all right to be heard, and where no intervening rights have been acquired on the faith of such judgment Held, That the court should have permitted the first mortgagee to answer and have his rights pro tected. All the Justices concurring. . true copy. Attest: C J. BROWN, sxal Clerk Supreme Court 7018. C. A. Hopper vs. C. S. Calhoun. E rror from Pratt Coun ty. REVERSED. Syllabus. BythxCoubt. Allen, J 1. To create a personal liability on the part of a grantee in a deed to pay a prior mortgage on the lands conveyed, where there Is no evi dence to explain the language used, or show ing a mistake, the words used must clearly import that the grantee assumes such pay ment and Held, That the words, "except a mortgage oi sj,17u.uu ana one interest mortgage of f 195.00, both mortgages given to C. S.Cal houn, which mortgages of said second party accept and agrees to pay;" wholly unex plained by other evidence are not sufficient to show an assumption of the mortgages referred to, by the grantee named In the deed. 2. The assumption of such mortgages may be shown by competent evidence outside of the deed. All the justices concurring. A true copy. Attest: C.J.BROWN, oxal. Clerk Supreme Court go: 2. Gottlieb Hofman vs. Peter Demple. Error from Shawnee County. AFFIRMED. Syllabus. By thx Coubt. Allxn, J, In an action brought br a wife to set aside a conveyance of the homestead which wm sub ject to a mortgage, where it appears that her ignsture to me aeea was ootainea oy duress, but that she took no steps for more than a year and a half to set it aside, but on the con trary that its validity was acquiesced In by any attempt was made to cancel or set aside said deed, raid oft such mortgage, and the ex isting tax liens on the premises. Held, That It is not error for the trial court In rendering a judgment cancelling such deed, to subrogate the grantee to the rights of the original mort gagee, and order a sale of the mortgaged prop erty, to repay to the grantee the amount ex pended by him In payment of the mortgage and tax Hens. All the justices concurring. A true copy. Attest C.J.BROWN, sxal Clerk Supreme Court In thx SuPBxif x Coubt ) or thx Statx or Kansas, j I, C. J. Brown, clerk of the supreme court of the state of Kansas, do hereby certify that the foregoing are true and correct copies of the syllabi of the decisions in the above entitled cases as the same appear on file In my office. Witness my hand and the seal of the supreme court this 12th day of February 1894. MAlJ C. J. BROWN, Clerk Supreme Court First published February 14, 1894. Legal Notice. OrXICXOrTHXClTYTBXASUBXB, ) Lawbxncx Kail, February 7, 1894. To Whom it Hay Concern: You are hereby notified that the following named bonds of the city of Lawrence, Kansas, will he paid at the National Bank Republic at the Fiscal Agency of the state of Kansas, In the city of New York, N.Y within thirty day from this date, viz Na'a 1,2 and 3, funding bonds, series "B," amount 9500 each, issue of January 1,1883. Tana for Eala Administrator'i Eale. Improved farm 273 acre, fifteen miles west of Topeka, on the Union Pacific R. R. Must be old at once, even at less than appraised value. Addreet, E. B. Guild, Administrator, Topeka, Kirs as.