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THE ADVOCATE AND NEWS.
16 JANUARY 19, Protection for Young Orchards-Trees Killed by Axle Grease. (Continued from page 6.) have been killed. The apricots were In jured most, the pears next, end the I Juris withstood the barbarous treat ment better than any of the others, al though some of every kind were killed wJlb It. The best protection of all Is wire screen, such as Js used for mosquito bars. Buy It In rolls eighteen inches wide, then out it across into strips six inches wide, roll these strips tightly around an old broom handle so that they will stay curled, then spring them around the tree and sink the lower end au inch Into the ground. As the tree grows the wire will expand and will protect the trees from borers and sun scald in the summer, and from mice and all kinds of n; jits in the winter. The strips can be ?:t and curled in the barn on a rainy day, and a boy can take them in a bushel basket and spring them around the trees very rapidly. They are much cheaper and much better in every way than strips of lath. The ex pense for the screen wire would be about a cent a tree for the common wire. The aluminum-covered wire la much tetter, as it will last much longer and Is much more pliable; but at present price dt costs about twice as much as the common wire. The price for this protection is merely nominal when com pared with the value of the tree. A fruit tree that has lived through the first summer In the orchard Is worth $1, and It is better to spend another dollar in protecting It than to lose it and have to replant. It would be a great job to tie strips of lath around 2,000 or 3,000 trees; be sides, the laths may cramp the trees too tightly, or the strings may break and the laths fall off, but the wire screen will not blow off or fall off, and it will expand and adjust Itself to the size of the tree as the tree grows. No grease of any kind should ever be put on a living fruit tree. Most washes, aside from soapsuds, are dangerous experi ments. Even orchards that are sprayed the most seem to bear the least in the long run.T. W. Harrison, In Rural New-Yorker. Potatoes for Fancy Prioes. One of the essential points in profit able farming is to be a good salesman, and to be a good salesman one must know the requirements of the market where the product Is sold. During the past few years there has been an In creasing demand for potatoes which bako well and Which can be placed on the table mealy and palatable. Unfor tunately one cannot tell from the ap pearance of a tuber whether It will cook soggy or mealy. The weight of each tuber in a dozen of equal size might be the same to a fraction of an ounce, yet one will be mealy and the other soggy. Some time ago the brine test was strongly advocated and trial has proved it reliable and inexpensive. A tank Is constructed holding any desired number of bushels of potatoes, and a box with a slatted bottom Is made to fit inside this tank and handled with rope and pulley. Make a brine at a specific gravity of I. I., the weight of the brine - being ascertained by the hydrometer, an inexpensive article. Fill the tank about half full of this brine. Select good-sized white potatoes with netted eklna and place them In the slatted box a few at a time, letting the box down into the brine. The tubers con taining 18 per cent, or more of starch wlil sink to the bottom, those contain ing less floating. Take off all the float ing ones and keep In bins separate from the others; rinse all the potatoes in clear water. The light ones can be read ily sold at a good price for "fancy bak ers," and the heavy ones will bring the average price, as the brine will not In jure them in the least In Pennsylvania a tenant may feed hay or grain which Is his personal pro erty to a cow which la also his personal property and the resulting manure be comes real estate and belongs to the owner of the farm which the tenant rents. Hence the tenant should keep only such stock as will produce the greatest returns in milk or meat and not keep stock as mere machines for the making of manure to enrich the land lord's land. Dr. Pierce's Pleasant Pellets are small, sugar-coated granules; agreeable to take. Children like them. If the drug gist wants to sell you some other pills that pay him better, just think of what pays you. You will receive a sample package free if you will send your name and address to the World's Dispensary Medical Association, Buffalo, N. Y. Published January 19, 1898. Appellate Court Syllabi. Kansas Court of Appeals, Northern De partment, Eastern Division. No. 2L William L. ChalllsH, plaintiff In error, vs. John A. Woodburn, et al., defendants in error. Error from Nemaha County District Court. MOTIONS DENIED. Per Curiam. The Judgment of the trial court rendered In this action was reversed and the case remanded for further proceedings in an opinion of this court, delivered January 9, 1896, 2 Kan. App. 652. John Worthy, since deceased, was a party to the action In tho District court. Martha E. Worthy, Pres cott G. Hale and William W. Gurley were appointed executors of the estate of John Worthy, deceased, on January 4, 1893. No proceeding for the revivor of the action in the name of such executors has been taken in the District court, nor in the Court of Appeals. The case is now pre sented to the court: (1) By the motion of Charles D. Hldwell and Sarah L. Bldwell, defendants in error, to recall the mandate and set aside the Judgment and dismiss the action. (2) The motion of William L. ChaUIss, that the Judgment rendered by this court bo modified so as to show that the lien of the estate of John Worthy, de ceased, is a first and prior lien upon the realty In controversy. An examination of the record in this case shows that William L. ChaUIss does not question the validity, nor priority, of the Worthy mortgage; that defendants in error are not in position to question either the validity or priority of the Worthy mortgage in this action. John Worthy and his executor! were not in court at the time Judgment was rendered by the Court of Appeals. Neither John Worthy, nor hla executors, were necessary parties to the determination of tho controversy in this case. They were not parties to the action at the time the opinion of this court was delivered. All of the necessary parties to the termination of the real controversy In this action were in court. The motion to recall the mandate, to set aside the Judgment and dismiss the action, will be denied; and the motion to modify the Judgment will be denied. Each party will be taxed with the costs of his motion. AH the Judges concurring. Filed January 6, 1898. A true copy. Attest: W. II. THOMPSON. ISeal. Clerk. Kansas Court of Appeals, Northern De partment, Eastern Division. No. 270. The Missouri Pacific Railway Company, plaintiff In error, vs. W. S. Bontrager, defendant In error. Error from tho District Court of Nemaha County. AFFIRMED. Per Curiam. This case and that of the Missouri Pa cific Railway Company vs. Nicholas Pfrang, Just decided, both grew out of the same accident, Pfrang and Bontrager each owned horses which were killed by the railway company's train on its right of way, the same questions of fact and law are involved in both cases, and the same Judgment will necessarily follow. The Judgment of the District Court will be affirmed. Mahan, P. J., concurring. Wells, J., hav ing been of counsel, not sitting. Filed January 6, 1S98. A true copy. Attest: W. H. THOMPSON, ISeal.l . Clerk. Kansas Court of Appeals, Northern De partment, Eastern Division. No. 2G9. The Missouri Pacific Railway Company, plaintiff in error, vs. Nicholas Pfrang, defendant In error. Error from Nemaha County District Court. AFFIRMED. Syllabus. Mahan, P. J. 1. The plaintiff sought to recover of the railway company damages for horses killed by It in the operation of Its road under the act of the Legislature of 1S74. He alleged that the company was liable In not having its right of way enclosed with a good and. lawful fence at the time of the injuries complained of in this, that it negligently constructed a gate, at an opening in its right of way, with defective fastenings, etc. Plaintiff, on the trial, without objection, proved that the fastenings of the gate had become unsafe, had remained so a long time and were when the horses escaped on the track. Held, that the court did not err in overruling a demurrer to tho evi dence upon the ground that there was a variance between the allegations and the proof. (Railway Co. v. Caldwell, 8 Kan. 247.) 2. After the court had overruled this de murrer of the defendant to the plaintiffs evidence, the defendant offered evidence upon its defense as to the sufficiency of th fastenings at the time of the injury. After the evidence was concluded, the de fendant requested a peremptory charge to find for the defendant upon the ground that the evidence was not sufficient to entitle the plaintiff to recover under the allega tions of the bill of particulars. Held, that the court did not err In refusing to so charge tho Jury. 3. It was not error for the court to refuse to say to the Jury that unless the evidence showed that the company's negligence was in the original construction of the gate, the plaintiff could not recover. 4. It wan not error in such case for the court to charge the Jury upon the case as made by the evidence, notwithstanding this variance. 5. If In construction of a right of way fence a railway company puts in a gate as part of such fence, it is bound to keep the same in repair the tame as any other part of the fence, unless as between it and an other person it Is relieved therefrom by contract, either express or implied; such contract will not be implied from the mere tact that the only person benefited thereby is the owner subservient to the right of way. Filed January 6, 1898. A trua copy. Attest: W. II. THOMPSON. ISeal. Clerk. Kansas Court of Appeals, Northern De partment, Eastern Division. No. 285. The Smith Frazer Boot and Shoe Com pany, a corporation, plaintiff in error, vs. O. L. White and William White, defend ants In error. Error from Brown County District Court. REVERSED. Syllabus. Mahan, P. J. 1. The defendants In error made an as signment for the benefit of creditors, in Missouri, in which State both parties re sided. The plaintiff in error was a sched uled creditor. After distributing part of the funds of the trust, the assignee paid the remainder into court and was dis charged. Two years thereafter, by order of the court, the clerk, in distributing this fund, paid plaintiff in error on its claim JS.5U, which they credited on the account so scheduled. This suit was brought on the account to recover the balance thereof. Held, that this payment by the Clerk of the court was not within the provisions of soc. 24 of the code, and did not toll tho statute of limitations. 2. Where a defendant, as u defense to an action arising in another State, interposes a plea of the statute of limitations, and avers that he came into this State more than three years prior to the commence ment of the suit, the burden is upon him to maintain the issue arising upon that avei ment. Filed January 6, 1898. A true copy. Attest; W. H. THOMPSON, Seal. Clerk. Kunsas Court of Appeals, Northern De partment, Eastern Division. No. 290. Jennie Fisher, plaintiff In error, vs. W. F. Moore, N. T. Jackman and George N. Nichols, co-partners, doing business un der the firm name and style of W. F. Moore & Co., defendants In error. Error from Wyandotte County District Court. REVERSED. Syllabus. Mahan, P. J. In an action by a mortgagee to recover the value of personal property, against a stranger to the mortgage, as for cover slon, if any part of the property Is suffi ciently described In the mortgage to charge a purchaser thereof with constructive no tice by record, it is error for the court to sustain an objection to the introduction of evidence as to all of such property be cause of its invalidity in not sufficiently describing the property. Filed January 6, 1898. A truo copy. Attest: W. H. THOMPSON. Seal. Clerk. Kansas Court of Appeals, Northern De partment, Eastern Division. No. 314. W. E. Sterne, plaintiff in error, vs. John Atherton, defendant in error. Error from the District Court of Shawnee County. AFFIRMED. Syllabus. Wells, J. 1. The Legislature has made provisions through paragraphs 1192-1200-1204-1205 and 1206, General Statutes 1889 for the enforce ment of the liability provided for in sec tion 2, article 12, of the constitution of the State. 2. An allegation in a petition filed No vember 22, 1893, "That on the 18th day of September, 1892, the said bank suspended all its business and since such time has performed no business whatsoever," is a sufficient averment of the dissolution of the corporation under paragraph 1200, Gen eral Statutes 1889, to authorize a suit by a creditor of said bank against a stock holder thereof. 3. Under paragraph 1204 above referred to, a stockholder of a banking corporation, which has been dissolved having debts un paid, is primarily liable, in an action brought under said action against him, In the amount provided by statute. ..-'lied January 6, 1S98. A true copy. Attest: W. H. THOMPSON, ISeal. Clerk, Kansas Court of Appeals, 'Northern De partment, Eastern Division. No. 303. W. W. Kimball Co., plaintiff in error, vs. Mattle Raw, defendant In error. Error from the District Court of Wyan dotte County. REVERSED. Syllabus. Wells, J. 1. R. purchased a piano of K. and exe cuted a sale note for $2.10 a part of th price agreed to be paid in installments o, $12 each month. After nearly three year K. demanded payment of the balance diK on said sale note and threatened that if said umount was not paid, to take said piano under said sale note, unless K. would executo a new Bale note for the balance clalmec. ar.u to prevent such taking and a sale thereunder she signed said renewal noto and contract. Held, that this did not constitute such duress as to avoid said renewal contract. 2. Although said "original contract may huvtf been procured by falsely represent ing that said piano was worth a sum greatly in exoess of Its actual value, yet, the renewal having been made with a knowledge of that fact, such fraud was waived and cannot now be used to defeat the enforcement of said renewal contract. Filed January 6, 1898. A true copy. Attest: W. II. THOMPSON, Seal. clerk. Kansas Court of Appeals, Northern De partment, Eastern Division. No. 313. Swofford Bros. Dry Goods Company, plain tiff In error, vs. M. S. Berkowltz, defendant in error. Error from Wyandotte County Court of Common Pleas. REVERSED. Syllabus. Mahan, P. J. 1. Plaintiff charged the defendants with the conversior of goods, for the purpose of charging them with the acts and dec larations of a third person as their agent. Tho plaintiff proved that this person had at the time, in this possession, an account or statement of goods sold by the defendants to the plaintiff, and of which he was de manding payment. Held, that this was not sufficient proof of agency upon which to charge the defendants with such tortuous acts and declarations respecting the same. 2. For the purpose of showing that the defendants ratified the acts of this person, the plaintiff proved that the defendants subsequently bought the goods in contro versy at a sale made by a constable; that this constable's deputy took the goods at the Instance of the person claimed to havo been acting as the agent of the defend ants: Held, not to be sufficient proof to establish a ratification of any tortuous acts of Buch person. 3. The petition alleges that "the defend ants the Swofford Brothers Dry Goods Company, carried away and converted to their own use, etc.," the goods in contro versy: "that after the wrongful and un lawful conversion of said property on the part of said Swofford Brothers Dry Goods Company, by and through their duly and legally authorized agents, plaintiff made a demand of said defendant for said goods, etc.," held, that this is not such an alle gation of appointment or authority as con templated by sec. 108 of the code; that these allegations did not require a verified answer to create an issue as to the un lawful taking or conversion of the goods. Filed January 6, 1898. A true copy. Attest: W. II. THOMPSON. Seal. Clerk. Kansas Court of Appeals, Northern De partment, Eastern Division- No. 393. J. S. Perkins, receiver of the Argentine Bank, a corporation, plaintiff In error, vs. Samuel Johnson, et al., defendants in error. Error from Johnson County District Court. DISMISSED. Syllabus. McElroy, J. 1. A condition precedent for a party who seeks by the Judgment of the Court of Ap peals to increase the burdens of one Joint judgment debtor, and thereby relieve the burdens of another, is that he bring them both into court; and where all of such Jolnt Judgment debtors to be affected are not brought into court, the petition in error should be dismissed . i'iled January C, 1898. A true copy. Attest: W. II. THOMPSON. Seal. Clerk. State of Kansas, ss. I, W. H. Thompson, Clerk of the Kansas Court of Appeals, in and for the Northern Department, Eastern Division, do hereby certify the above and foregoing to be true, full and complete copies of the syllabi in the therein entitled causes as the same re main on file in my office. Witness my hand and the seal of said court, affixed at my office, in Topeka, Kan gas, this 14th day of January, A. D.. 1898. ISeal. W. H. THOMPSON, Clerk Kansas Court of Appeals, Northern Department, Eastern Division. Wanted Your Laundry Vork. PEERLESS STEAM LAUNDRY, 118-114 Wft Eighth 8t, Telephone 833.