his intentions from the beginning were to detect the wrongs of others, and finally to return the money received by himself, it would not excuse his misconduct. It is a lame apology to say that he committed an offense in order to detect the commission of another. What he did was done purposely and willfully. It was done in his official capacity, and for a pecuniary benefit to himself. From his own admissions, it must be held that it was fraudulently and corruptly done, and therefore the court rightly held that he had forfeited his office.

An attack is made upon the act authorizing the payment of bounties on the scalps of wild animals (chapter 90, Laws 1889), because it purports to repeal chapter 73 of the' Laws of 1873, instead of the Laws of 1885. It may be remarked, however, that the act purports to repeal all laws in conflict with that enacted. However, the validity of the law is a matter of no importance so far as this proceeding is concerned. Whether valid or invalid, he was guilty of official misconduct in wrongfully colluding with others to perpetrate a fraud upon the county. He acted in his official capacity, and, as before stated, if he had not officially signed the orders, the money could not have been obtained. Neither is it any excuse for him that the chairman of the board of county commissioners did not join with him in the execution of the orders. The county clerk is authorized to sign all orders issued for the payment of money upon demands or claims allowed against the county. They were signed by him in his official capacity, and the fact that the orders were irregularly issued will not exempt him from the consequences of his faithless and fraudulent conduct. The judgment of the district court will be affirmed. All the justices concurring.

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 1874. He alleged that the company was liable in not having its right of way inclosed 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 the evidence, upon the ground that there was a variance between the allegations and the proof. Railroad Co. v. Caldwell, 8 Kan. 247.

2. After the court had overruled this demurrer of the defendant to the plaintiff's evidence, the defendant offered evidence upon its defense

as to the sufficiency of the fastenings at the time of the injury. After the evidence was concluded, the defendant 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 allegations of the bill of particulars. Held, that the court did not err in refusing to so charge the 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 I could not recover.

4. It was 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 same as any other part of the fence, unless, as between it and another person, it is relieved therefrom by contract, either express or implied. Such contract will not be implied from the mere fact that the only person benefited thereby is the owner of the land subservient to the right of way.

(Syllabus by the Court.)

Error from district court, Nemaha county; J. F. Thompson, Judge.

Action by Nicholas Pfrang against the Missouri Pacific Railway Company to recover damages for killing of horses. Judgment for plaintiff. Defendant brings error. Affirmed.

Waggener, Horton & Orr, for plaintiff in John Stowell and R. C. Bassett, for defendant in error.

error.

MAHAN, P. J. The defendant in error sued the railway company to recover the value of horses alleged to have been killed by the railway company. He sought to recover-First, under the statute of 1874, making railway companies liable for such damages without regard to negligence in case they failed to properly fence their right of way; and, second, for the reason that the railway company caused the injury, negligently running their trains over the horses after they had escaped and gotten upon the right of way. The petition alleged that the railway company was also negligent in not providing proper fastenings for a gate, being part of their right of way fence between the right of way and the land upon which the plaintiff's horses were being pastured. that both the statutory liability under the act of 1874 and the common-law liability against the railway company were charged. It appeared upon the trial, in addition to the contention that the original fastenings upon the gate were defective and insecure, that the railway company had negligently permitted the fastenings to become more insecure, and it was through this negligence that the horses escaped and got upon the railway track. It is contended in behalf of the railway company that inasmuch as the allegations of the petition charge that, in the construction of the gate, the railway company was negligent, there was a variance between this proof and the allegations

So

of the petition. Counsel says that this question was raised by their demurrer to the evidence, by their requesting peremptory instructions in its favor, and by their special instructions asked in its behalf. The company did not, upon the trial, make any objections to the introduction of evidence, on the ground that it did not correspond with the allegations of the petition, but joined in the trial of that issue, and offered evidence thereon upon its part. Under the provisions of sections 133 and 134 of the Code of Civil Procedure, as construed by the supreme court in the case of Railroad Co. v. Caldwell, 8 Kan. 247, this was not reversible error. The supreme court, speaking by Judge Brewer in that case, says: "Something of an argument might be made to show that this was no case of variance, but rather a case in which only a part of the allegations of the petition are proven. But waiving this, and conceding it to be a case of variance, still, as it is such a case as would manifestly require the court to give leave to amend the petition to conform to the facts proven, and as the defendant could not justly claim to be prejudiced by such amendment, we do not think the judgment ought to be disturbed because no formal amendment has actually been made." The plaintiff in error did not 'contend that it was misled, but was apparently ready to meet the issue presented by the evidence.

The second assignment of error is that, under the undisputed evidence, the railway company was not liable for any damages. The third is that the trial court erred in refusing to sustain its demurrer to the plaintiff's evidence; and, fourth, that the trial court erred in refusing to give judgment in favor of the plaintiff in error upon its motion therefor, because the findings of fact by the jury and the undisputed evidence entitled the company to such judgment. These three assignments will be considered together. They are based upon the variance heretofore alluded to. This is deducible from the argument presented in support of these assignments. Counsel for the company say that the court had no right to enlarge the issues in the case by its instructions, and present to the jury a case not made by the pleadings. The conclusion upon the first assignment likewise controls these three. The court committed no error therein.

The fifth, sixth, and seventh assignments of error are to the effect that the court erred in not giving to the jury a binding charge to find for the defendant-First, upon the pleadings; second, upon the pleadings and the evidence; and, third, from the pleadings and the evidence as it related to the stock law of 1874. From a close scrutiny of the record, we cannot say that the evidence of the plaintiff lacked anything to entitle him to recover prima facie. The petition alleged a cause of action both under the statute and the common law. The evidence showed a

right prima facie to recover upon either theory of the case. So that it was a question for the jury to determine from all the evidence whether the plaintiff was entitled to recover. Upon the conclusion of the trial, there was conflicting evidence to be weighed by the jury, and the court would have invaded the province of the jury by giving the instructions requested. The jury found in its special findings for the plaintiff in error, upon the question of its common-law liability, and based its general verdict upon the company's failure to maintain a fence on its right of way.

The eighth assignment of error is in the refusal of the court to charge the jury as follows: "Under the statute of 1874, a railway company whose railroad is not inclosed with a good and lawful fence to prevent animals from being on such road is liable to the owner of such animals for killing or injuring them in the operation of the railroad, without regard to any question of negligence in the management or operation of trains; but a railroad company whose railroad is inclosed with such a fence cannot be held liable in any case under said statute of 1874." The court did not give this instruction verbatim in its general charge; yet it did in substance give it.

The ninth assignment of error is that the court refused to give to the jury the sixth instruction requested by the defendant, to the effect that unless the evidence showed that the company's negligence was in the original construction of the gate, and not by reason of any negligence in maintaining the gate, the plaintiff could not recover under the statute of 1874. This contention has been disposed of hereinbefore.

The tenth assignment of error is in the court's refusal to charge the jury as requested by the defendant in its seventh instruction. This was given in the general charge almost verbatim.

The eleventh assignment of error is that the court did not charge the jury as requested by the defendant in its eighth request. This instruction was likewise given in the court's general charge.

The twelfth assignment of error is in refusing to charge the jury as follows: "If you find that the landowner considered the fastenings defective or insufficient, but made no complaint thereof, although having frequent opportunity, and said horses were turned into the field without taking any additional precaution for fastening the gate, then the landowner was guilty of contributory negligence, and the plaintiff cannot recover under said statute of 1874." In the first place, the question of contributory negligence was one to be left to the jury upon the facts. It cannot be said that, because the landowner made no objection to the character of the fastenings on the gate, the plaintiff would be thereby chargeable with contributory negligence. There was no relation of principal

and agent existing between the plaintiff and the landowner.

The thirteenth assignment of error is in refusing to charge the jury as requested by the defendant in its fifteenth request. The substance of this request is embodied in the general charge as favorably to the defendant as though its request had been granted.

The same is true of the fourteenth assignment of error.

The fifteenth assignment of error is, in substance, the same as the twelfth. It attempts to measure the right of the plaintiff to recover against the defendant by the situation of the landowner, to impute to him all the knowledge, and to charge him with the result of the acts of the landowner.

The sixteenth assignment of error is that the court refused to charge the jury as follows: "It does not appear that the plaintiff was under any obligation, duty, or necessity of pasturing his horses on W. S. Bontrager's land. It seems to have been a matter of choice and mere convenience; and if you find that the plaintiff opened, closed, and fastened said south gate when he put his horses into the stock field on January 8, 1893, and had full opportunity of examining the gate and its fastenings at said time, and he then considered and treated them as sufficient, then he ought not now to complain that they were insufficient for the purpose of casting liability upon the defendant for the plaintiff's own benefit." The fact that the plaintiff was not the owner of the land upon which the stock was running, having a` license therefor only, can make no difference as to the liability of the company. The mere fact that he put his horses in through the gate in controversy on the morning of the 8th of January, and had that opportunity of seeing the gate, and how it was fastened, is not sufficient to work an estoppel against him to claim that the fastenings on the gate were not sufficient. Nor can it be said, as a matter of law, from the mere fact that he had that opportunity of inspecting the gate and its fastenings, that he was guilty of contributory negligence, that would bar his right of recovery.

The seventeenth assignment of error is that the court instructed the jury as follows: "A landowner whose farm is divided by a railroad is entitled to necessary crossings, and when the railroad company fences its track through his farm, and constructs gates in the fences at such crossings, the gates being merely a part of the fence, it is the duty of the railroad company to furnish such gates with good and sufficient fastenings, and the omission to furnish such fastenings is negligence." "Where a railroad company at such private crossings constructs a gate with defective and insufficient fastenings, and, by reason thereof, stock stray upon such railroad company's road through said gate, and are struck by said railroad company's train, the company is liable to the owner of 51 P.-58

the stock for the damages sustained; and if such company fails to pay such damages for thirty days after demand, and suit is brought, it is also liable for a reasonable at torney's fee." "A railroad company is not only required to construct a gate with reasonably sufficient fastenings at a private crossing, but it must maintain the same in a reasonably sufficient condition to prevent stock getting through such gate; and if such gate is constructed with sufficient fastenings. and afterwards, through use and wear, the fastenings become defective and insecure, and are permitted to remain in a defective condition, for such length of time that, with ordinary care and diligence, the railroad com pany could have discovered and remedied the defect, then the company is charged with notice of the defect." "If the railway con structed the gate in question with good and sufficient fastenings, and had up to the time of the accident kept the same in good repair. then it was the duty of the owner of the land or the person occupying the land to keep the gate closed and fastened so far as was necessary to keep the animals off the railroad: and there can be no recovery for the loss and injury of said animals, under the statute of 1874, on account of the gate being left open or unfastened by the plaintiff, the landowner. or any neighbor, or any person other than some servant, agent, or employé of said company." The contention in support of this assignment is that a railroad company is not required to erect or maintain gates at a pri vate crossing upon a farm for the convenlence of the landowner whose farm it severs. The case next cited by counsel in support of this contention is Adams v. Railroad Co., 46 Kan. 161, 26 Pac. 439, in which the court says: "And where the railroad company fences its track through his farm, and constructs gates in the fences at such crossings for the accommodation of the landowner or his tenant, the duty rests upon him to keep the gates closed; and if he neglects to do so, and his animals pass through them upon the track, and are killed, without the negligence of those operating the trains, the railroad company is not liable for the loss." In this case the court found it a fact, by way of presumption, that the landowner had left the gate open, and was immediately responsible for the fence not being a perfect fence. It needs no argument to sustain the proposition that the company in such case would not be liable for damages occasioned to the landowner by his own act. The next case cited is Railroad Co. v. Kregelo, 32 Kan. 608, 5 Pac. 15. This was an appeal from award of commissioners appointed to condemn the right of way through the land of the defendant in error. The court says: "As a general rule, the landowner has a reasonable right to farm crossings at such places as the necessities of his farm demand, provided such crossings and the use thereof will not interfere with the paramount rights of the railroad com.

pany." The court was considering the statnte in relation to condemnation proceedings, and said that the statute did not require the company to build and maintain crossings. This is very different from the company's liability for stock killed under the statute of 1874. The next case referred to in counsel's brief is Railroad Co. v. Allen, 22 Kan. 285. This was also an appeal from condemnation proceedings, and has no application to the questions involved herein. The next case cited is Railroad Co. v. Gough, 29 Kan. 94. This was an appeal in condemnation proceedings. The court says that the company was not required by the statute to go to the expense of constructing and maintaining crossings. It refers to crossings over the track, and has no relation to the obligation imposed upon railroad companies to pay for stock killed by them on their line without regard to their negligence. The statute cited in the brief is the same. The next citation is Railroad Co. v. Cosper, 42 Kan. 561, 22 Pac. 634. This is also an appeal in condemnation proceedings, and, as in the other cases cited, the court was discussing the measure of damages to the land through which the right of way was condemned; and incidentally, in that case, the court discusses the right of the owner of the farm to make a crossing. The statute of 1874 imposed upon a railway company a liability to pay for all stock killed on its line of road, in the operation thereof, without regard to negligence. By another section it is provided that railroads which are fenced with lawful fences are exempt from the operation of this statute. So that it is simply a question whether the company had properly fenced and maintained a fence along its right of way. Had there been a contract between the owner of the farm and the railroad company by which the burden of erecting and maintaining this fence had been placed upon the owner of the farm, the result might have been different. But it is not claimed that the obligation of the company was in any manner changed from it to the landowner by any contractual relation between them, express or implied. The obligation still rested upon the company.

The next assignment of error is that the trial court erred in rendering judgment against the company. The evidence supported the findings of the jury, and their findings warranted the judgment. There was no error in the proceedings warranting a new trial.

The twenty-first assignment of error is that the court erred in refusing to sustain the motion of the plaintiff in error to reapportion the costs between the parties. We cannot determine from the record whether the costs from which the company sought to be relieved arose under the contention of the plaintiff that the company was liable at common law. We are unable to determine from the record that the court erred in refusing to retax the costs. We cannot discern from the

SCHOONOVER, J. This is an action for the wrongful conversion of 405 bushels of wheat, of the value of $202.50. The Bank of McCracken held a first, and Ed. F. Madden, plaintiff in error, held a second, mortgage, given by N. B. Drummond on the wheat in controversy and other personal property. Drummond, with the knowledge and consent of the Bank of McCracken, sold to the defendant in error, S. C. Walker, 405 bushels of wheat, of the value of $202.50, which was applied on a debt, not secured by this mortgage, due from Drummond to Walker. The theory of plaintiff in error is that the consent of the bank to the sale of the wheat operated to release the said first mortgage as to the wheat, and that plaintiff in error's mortgage thereby became a first lien, and entitled him to the possession of the wheat. We cannot concur in this view. The bank, as the holder of the first mortgage, had the right to sell the wheat, or to authorize the mortgagor to do so, and apply the proceeds on amount due the bank; and, as against the plaintiff in error, the law makes such application, and reduces the bank's claim or debt by an amount equal to the value of the wheat sold. This is all plaintiff in error is entitled to have done, and all he can equitably claim. If he wishes to redeem the property, he can do so by paying the bank's claim, less the value of the wheat sold; hence his interests are not prejudiced. He is no worse off on account of the sale. Nothing has been done to his injury. He was not entitled to possession of the wheat until the first mortgage was paid or redeemed from. The sale being authorized by law, the title to the wheat

passed to the purchaser, defendant in error. The description of the property in the first mortgage was sufficient to embrace the wheat in controversy. The instructions of the district court, considered as a whole, fairly state the law of the case. The judgment of the district court is affirmed. All the judges concurring.

(7 Kan. A. 695)

STATE BANK OF ST. JOHN v. GRUVER et al.

(Court of Appeals of Kansas, Southern Department, W. D. Jan. 18, 1898.) APPEARANCE-EFFECT-COST BOND-OBJECTIONS. 1. By a general appearance, the defendants submit themselves to the jurisdiction of the court.

2. The proper way to object to a defective or void cost bond in an ordinary civil action is by a special appearance, or by a motion for additional security for costs.

(Syllabus by the Court.)

Error from district court, Kiowa county; W. O. Bashore, Judge.

Action by the State Bank of St. John against Herman E. Gruver and Maria Gruver. Judgment for plaintiff, who moved to confirm the sale, and defendants moved to have the judgment and sale set aside. From an order vacating the judgment and setting the sale aside, plaintiff brings error. Reversed.

Moseley & Dixon and John W. Rose, for plaintiff in error. B. D. Crawford, for defendants in error.

The pe

DENNISON, P. J. This action was commenced in the district court of Kiowa county, Kan., by the plaintiff in error against the defendants in error, to foreclose a mortgage upon certain lands in said county. tition alleges the execution and delivery of the note and mortgage, and a default thereon. The answer of the defendants is an unverified general denial. Judgment was rendered for the plaintiff. An order of sale was issued, and the land was advertised and sold. The plaintiff filed a motion to confirm the sale, and the defendants filed a motion to have the judgment vacated and the sale set aside. These motions were heard by the court, and the motion to vacate the judgment and set aside the sale was sustained, over the objection and exceptions of the plaintiff. The motion reads as follows (omitting caption): "Now come the defendants herein, Herman E. Gruver and Maria Gruver, and move the court to set aside, vacate, and hold for naught the judgment heretofore rendered in this action against them and the sheriff's sale held thereunder, for the following reasons, to wit: (1) For neglect and omission on the part of the clerk of the court, and irregularities in obtaining said judgment; (2) that said judgment is excessive, and is not sustained by the petition; (3) that the pretended petition upon which

said judgment was and is based does not state facts sufficient to constitute a cause of action against these defendants, or either of them, and to entitle plaintiff to the relief granted and the judgment rendered; (4) for irregularities of the sheriff in making said sale, and selling the property described in petition twice upon the same notice of sale; (5) that said judgment was without jurisdiction on the part of the court to render the same, and is irregular, illegal, and void. Herman E. Gruver and Maria Gruver, Defendants, by B. D. Crawford, Their Attorney." The plaintiff brings the case to this court, and asks for a review of the order of the trial court in sustaining the motion.

The defendants in error have filed no brief, and have not pointed out to us the reasons why the trial court should be sustained. After an examination of the record, we conclude that the order was made because the attor ney for the plaintiff was the only surety upon the cost bond filed therein. This will be the only question considered by us. The defendants, by their general appearance in the case, submitted themselves to the jurisdiction of the trial court; and it is immaterial whether the cost bond filed therein is defective or void. If the bond is defective or void, the defendants should object to the jurisdiction of the court by special appear ance, or by a motion for additional security for costs. The petition in this case states a cause of action. The court could not set aside the judgment because it was excessive, as the plaintiff offered to remit all excesses. There is nothing in the record to show that the land had been sold twice upon the same order of sale. The judgment of the district court is reversed, and the case remanded, with instructions to overrule the defendants' motion to vacate the judgment and set aside the sale. All the judges concurring.

(7 Kan. A. 689) ANGLO-AMERICAN LAND, MORTGAGE & AGENCY CO., Limited, v. HEGWER et al.

(Court of Appeals of Kansas, Southern Department, W. D. Jan. 18, 1898.) EVIDENCE-ACKNOWLEDGED MORTGAGE - DENIAL

OF EXECUTION.

A mortgage properly acknowledged may be introduced in evidence and read without further proof. and, when so introduced and read, it makes a prima facie case, although its execution is denied by a verified answer. (Syllabus by the Court.)

Error from district court, Pratt county; W. O. Bashore, Judge.

Action by Anglo-American Land, Mortgage & Agency Company, Limited, against Ernest G. Hegwer and others on a note and mortgage. Defendants had judgment. Plaintiff brings error. Reversed.

J. F. Perdue, for plaintiff in error. Thompson & Aph and Ellis & Barrett, for defendants in error.