DUNBAR, HADLEY, CROW, and ROOT, JJ., concur.

RUDKIN and FULLERTON, JJ. (dissenting). There are but two conceivable reasons why the verdict should be set aside in this case: First, because one of the jurors was separated from his fellow jurors for a few minutes, in company with a sworn officer of the court having him in charge; or, second, because the same juror entered a public saloon and took a drink of whisky during the progress of the trial. We cannot believe that the majority intends to lay down the rule that a verdict must be set aside every time a juror enters a public saloon or takes a drink of whisky during the progress of a trial. Those who are familiar with the habits of 12 men picked up from the ordinary walks of life know full well the results that would follow from the adoption of any such rule. Nor did the withdrawal of the juror from his associates, under the facts disclosed in the record, constitute a separation of the jury in legal contemplation. "The presumption will not be indulged that a separated juror was tampered with in the immediate presence of the officer having him in charge." 12 Ency. Pl. & Pr. p. 572, Even where there is an improper and unauthorized separation of the jury, according to the great weight of authority, the only effect of the separation is to throw upon the state the burden of rebutting the inference that injury or prejudice may have resulted to the accused by reason of the separation. Id. pp. 568-570. It is unnecessary for us to consider what the proper rule should be in this jurisdiction under such circumstances, but we refer to the majority rule for the purpose of showing that in a case like this, where there has been no separation in fact, and where it is affirmatively and conclusively shown that no prejudice resulted, a new trial should not be granted. While the conduct of the bailiff and juror is properly subject to censure and criticism, the parties to the action were in no manner responsible for their shortcomings.

We think proper punishment meted out to the juror and the officer for their contumaclous conduct in disobeying the orders of the court would fully satisfy the demands of public justice, and that the new trial should be denied.

2. SAME-DESCRIPTION-SUFFICIENCY.

A tax deed which gives a full description of a single city lot in the recital that it was subject to taxation, and in subsequent recitals as to sale, assignment of certificate, and of the conveyance of the property the lot is not redescribed, but only referred to as "said property," "the real property above described," and "the property last hereinbefore described," is not void for insufficient description of the property sold and conveyed, where the deed recites that the whole lot was sold; that being the least quantity bid for the taxes charged against it.

[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Taxation, §§ 1519, 1520.] (Syllabus by the Court.)

Error from District Court, Montgomery County; Thos. J. Flannelly, Judge.

Action by Charles E. Gibson against Godfrey Hammerburg. Judgment for defendant, and plaintiff brings error. Affirmed.

A. L. Billings, for plaintiff in error. A. L. Wilson, for defendant in error.

JOHNSTON, C. J. In an action to recover a lot in the city of Cherryvale the result turned on whether a tax deed purporting to convey the lot, and under which Godfrey Hammerburg held, was valid on its face. The defect relied on by Charles E. Gibson, who held under a conveyance from the original owner, was that a full description of the land was not given in the granting clause of the tax deed. In the first of the tax deed, and as a part of the recital that the lot was subject to taxation, it is fully and accurately described. In the succeeding parts, reciting the sale, the assignment of the certificate of sale, the failure to redeem from the sale, and the final grant and conveyance to the assignee, the lot is referred to as "said property," "the real property above described," and "the property last hereinbefore described." There can be no uncertainty or doubt as to the property taxed, sold, or intended to be conveyed. Only one description is given in the deed, and that is complete and perfect. The whole of the parcel taxed was sold for the taxes. It was the least quantity bid for the taxes charged against it, and the whole of it was conveyed by the deed. Reference is made to McDonough v. Merten, 53 Kan. 120, 35 Pac. 1117, where it was said that a second description was necessary. There, however, a quarter section of land was taxed, and the deed did not show the quantity of land sold for taxes, or that what was sold was the least quantity bid for the taxes against the property. It was therefore held that the omissions were fatal to the validity of the conveyance. Here it is recited that the purchaser "having offered to pay the sum of $7.38, being the whole amount of taxes, interest, and costs then due and remaining unpaid on said property for all of said property, which was the least quantity bid for, and payment of the said sum having by him been made to the said

treasurer the said property was stricken off to him at that price." It therefore appears that a single lot was taxed, a single lot was sold, and a single lot was conveyed, and the appropriate references to the lot as first described in the deed designates the property sold and conveyed with "ordinary and reasonable certainty," and that is all that is required. Haynes v. Heller, 12 Kan. 381; Dodge v. Emmons, 34 Kan. 732, 9 Pac. 951. There is a further contention that the deed is bad because it does not show the notice of tax sale, that a certificate of sale was given, and that the certificate was presented to the county clerk preliminary to the execution of the deed. While these details are mentioned in the statute, they are not prescribed in the statutory form of deed. Where the statute prescribed the form of a deed, a compliance with that form is sufficient. Hobson v. Dutton, 9 Kan. 477. The deed in question closely follows the statutory form, and, being good on its face, it furnishes prima facie evidence that the required notices were given, that the proceedings were regular, and that every step necessary to its validity was taken. There is, further, a recital in the deed, as prescribed by the statute, that the sale was made in substantial conformity with all the requisites of the statute. Duncan v. Gillette, 37 Kan. 156, 14 Pac. 479, is cited as an authority that the recital of the facts above stated are essential to the validity of the deed. In that case the deed was made under a special statute, providing for a resale of lands bid in by the county and which remained unredeemed for five years after the first sale without any one offering to purchase the same for the taxes, penalties, and charges. The statute did not prescribe the form of the deed in such cases, and hence it was held that the deed should show compliance with the special authority under which it was issued and that the essential steps prescribed by that statute had been taken.

The court ruled correctly in holding that the tax deed was valid on its face, and hence its judgment must be affirmed. All the Justices concurring.

(72 Kan. 429)

HAM v. BOOTH et al. (Supreme Court of Kansas. Dec. 9, 1905.) 1. TAXATION-TAX DEFD-VALIDITY.

A tax deed is not void for failing to give the residence of the assignee of the certificate of sale, where such assignee is a foreign corporation and the recital states that it is a corporation organized and existing under the laws of a designated state.

2. SAME DESCRIPTION OF LAND.

In the beginning of the tax deed the tract of land was accurately described, and there was a recital that, as it could not be sold for the taxes charged against it, the county treasurer bid it off for the county. In subsequent recitals as to assignment of the certificate of sale and of the conveyance the first description was referred to in plain terms, without redescribing

the land. Held, that the deed is not void for failing to repeat the description or for indefiniteness of description of the land conveyed..

[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Taxation, §§ 1519, 1520.]

3. SAME FORM OF DEED.

A substantial compliance with the form prescribed by statute for the execution of tax deeds is suflicient.

[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Taxation, § 1504.]

(Syllabus by the Court.)

Error from District Court, Rooks County; Chas. W. Smith, Judge.

Action between W. B. Ham and Henry Booth and others. From the judgment, Ham brings error. Affirmed.

W. B. Ham, in pro. per. Peters & Bowersock and O. O. Osborne, for defendant in er

ror.

JOHNSTON, C. J. This action involves the title to a quarter section of land in Rooks county. W. B. Ham claimed it under a regular chain of conveyances from the United States down to himself, and Henry Booth asserted title under a tax deed to James F. Houlihan and a transfer from Houlihan to himself. There is no dispute as to the validity of any of the conveyances on either side, except the Houlihan tax deed, and the case turns upon whether that instrument is void upon its face. The district court held it to be prima facie valid, and this court is of the same opinion. The deed conforms so closely to the form prescribed by statute that a recital of the same at length is unnecessary, and hence special reference will be made only to the part claimed to be defective. It recites the assessment of the taxes upon the land, describing it in detail; the default in the payment of the taxes; the exposing of it to public sale for taxes in conformity to the statutes; that it could not be sold for the taxes charged against it, and therefore it was bid in by the county; and the assignment of the tax certificate and of the interest of the county in the property "to the Eastern Banking Company, a corporation organized and existing under the laws of the state of Connecticut." Then followed a recital of an assignment to Houlihan, the payment of subsequent taxes, and the final grant and conveyance of the land to him. It is argued that the deed is faulty in failing to give the residence of the assignee, the Eastern Banking Company. Assuming that a statement of the residence of the purchaser and assignee is a requisite part of a tax deed, as the plaintiff plausibly contends,, the question remains whether it is not substantially done in this case.

The statute prescribes the form of a tax deed and provides that it shall be substantially followed. A literal compliance, however, with that form, is not required. A departure from the statutory phrase will not invalidate the deed, if the idea in the prescribed re

cital is fairly included and stated in other words. Bowman v. Cockrill, 6 Kan. 311; Mack v. Price, 35 Kan. 134, 10 Pac. 521. The deed, instead of stating that the assignment was made to the Eastern Banking Company, of a certain county and state, recites that it was made to "the Eastern Banking Company, a corporation organized and existing under the laws of the state of Connecticut." In effect this was a statement that the company resides in the state of Connecticut. A corporation is an artificial being which exists only in contemplation of law, and its residence, so far as it can be said to have one, is in the state which creates it It may exercise a permissive right to do business in other states, but may not migrate to another sovereignty. Its home, its residence, as has been often held, is in the state of its creation, and the recognition it receives elsewhere is accorded under the rules of interstate courtesy and comity. Williams v. Metropolitan Street Railway Co., 68 Kan. 17. 74 Pac. 600, 64 L. R. A. 794, 104 Am. St. Rep. 377; Bank of Augusta v. Earle. 13 Pet. (U. S.) 519, 10 L. Ed. 274; Shaw v. Quincy Mining Co., 145 U. S. 444, 12 Sup. Ct. 935, 36 L. Ed. 768; 1 Clark & Marshall on Private Corporations, 356; Thompson on Corporations, § 688. Since a corporation is a creation of the state, its residence may be said to be a state residence, and the naming of a county or principal place of business is not important for the purpose under consideration. A substantial compliance with the statutory form is sufficient, and the purpose of the tax law respecting residence is subserved when there is a recital in the deed of the state in which the corporation was organized and now exists.

Another objection made to the deed is that only one description of the land is contained in it. That is the description first given of the quarter section, and in reciting the sale and conveyance of the land appropriate reference is made to the first description, which appears to be accurate and complete. There was but a single tract taxed, and, as it could not be sold for the taxes charged against it, the county treasurer bid it off for the county. As the county is not a voluntary or competitive bidder, it necessarily took the entire traet. Larkin v. Wilson, 28 Kan. 513; Mack v. Price, supra. There being no division of the property in the sale, the recital of the sale, assignment, and conveyance by such terms as "said property" and "the real property above described" shows definitely that the same tract was referred to throughout the instrument, and that the description is in no sense indefinite. Haynes v. Heller, 12 Kan. 381; Dodge v. Emmons, 34 Kan. 732, 9 Pac. 951; Gibson v. Hammerburg (just decided) 83 Pac. 23.

It is argued that the deed does not recite the presentation of the certificate to the county clerk preliminary to the issue of the

deed, but this is not required in the form prescribed by statute. Nor is there anything substantial in the objection that the deed is not made in the name of the county. In this respect it follows the statutory form, which, as to the conveyances to which it applies, must be deemed sufficient. Gibson v. Hammerburg, supra.

The judgment of the district court will be affirmed. All the Justices concurring.

(72 Kan. 110)

MISSOURI PAC. RY. CO. v. OLDEN. (Supreme Court of Kansas. Nov. 11, 1905.) 1. FENCES-TRESPASSING ANIMALS.

The fence law of 1868 modified the common-law rule of liability for damages done by trespassing animals, and relieved the owner thereof from all liabilities for damages resulting therefrom, except trespasses committed on lands inclosed with the legal fence described in the act.

2. SAME HERD LAW-ADOPTION-E"FECT.

The herd law of 1872 (Laws 1872, p. 384, c. 193), where adopted, is a readoption of the common law in this respect as it existed prior to the enactment of the fence law of 1868. 3. SAME.

The fence law of 1868, which defines the kind of fence with which land must be inclosed before the owner can recover damages committed by trespassing stock, has no application for any purpose in counties where the herd law of 1872 (Laws 1872, p. 384, c. 193) has been adopted.

(Syllabus by the Court.)

Error from District Court, Jackson County; Marshall Gephart, Judge.

Action by Orlo E. Olden against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Waggener, Doster & Orr, for plaintiff in error. Hayden & Hayden and John D. Myers, for defendant in error.

GREENE, J. This was an action to recover the value of three mules and one colt alleged to have been killed by the negligence of the Missouri Pacific Railroad Company while operating its train on the Central Branch Railroad. The defendant answered by a general denial, and also alleged contributory negligence on the part of the plaintiff in permitting his animals to run at large, in violation of the herd law of 1872 (Laws 1872, p. 384, c. 193), which was in force in the county when the stock was killed. To this answer the plaintiff filed a general denial. The trial resulted in a verdict and judgment for plaintiff, to reverse which the defendant prosecutes error to this court.

When the plaintiff had submitted his evidence to the jury, the defendant demurred, making the following points: First, that the testimony did not fairly or reasonably tend to show that the Missouri Pacific Railroad Company was operating the Central

Branch Line when the stock was killed; second, that the testimony of the plaintiff established the fact that the inclosure from which the stock escaped was not fenced with a legal fence-such a fence as is provided for in chapter 40, Gen. St. 1901-and therefore the plaintiff was guilty of contributory negligence. Without setting out in full the testimony which leads us to the conclusion, we feel quite well satisfied that there was sufficient testimony to justify the court in overruling the demurrer on the first point. The stock were being pastured in a stock field, and escaped therefrom without plaintiff's fault-unless he was negligent in not maintaining the legal fence contended for by defendant-and wandered along the highway to the track of the Central Branch Railroad Company, and passed over an insufficient cattle guard upon the track, where they were killed by a passing train. The field in which this stock was being pastured was inclosed with posts, upon which were nailed three wires in some places and only two in other places. This did not constitute such a fence as is denominated as legal fence by chapter 40, Gen. St. 1901.

Plaintiff in error contends that in a herd-law county, if stock escape from an inclosure without the owner's fault, he cannot recover damages against a railroad company for killing them, unless such inclosure was protected by a legal fence. With this we do not agree. In 1868 the general fence law was passed, being chapter 40, Gen. St. 1901. The effect of this law was so to modify the common law that the owner was not liable for damage committed by his trespassing stock, except to those whose lands were inclosed with a legal fence. The act defined a legal fence, and also provided means whereby it could be determined whether a fence complied with the requirements of the statute. This law is in operation in every county in the state, except in those which have availed themselves of the herd law of 1872. The adoption of the herd law is a readoption of the common law in this respect, and the owner of cattle is liable for damages committed by them in a herd-law county, regardless of the fence law. The fence law was not intended to, and does not, furnish a rule by which to determine whether the owner of stock in herd-law counties is guilty of negligence in inclosing them. The adoption of such a rule would be equally dangerous to the railroad company and the owner of the stock. Under such a rule the owner of breachy and unruly stock might inclose them in the weakest fence provided for in the statute, and if they broke this inclosure and escaped, and went upon a railroad track and were killed, he could recover, because he had a legal, fence, notwithstanding he might know the inclosure was not sufficient to restrain them. In a herd-law county one cannot recover against a railroad company

for damages to stock if he permits them to run at large, or if he places them in a pasture inclosed with a legal fence which he knows or has reason to believe will not restrain them, and they escape therefrom. The care and diligence that every man is required to exercise in the protection of himself or property is ordinary care, in view of all the surrounding circumstances. If the stock killed were the ordinary farm stock, and the owner had the pasture inclosed with an ordinary fence, such as is generally required to restrain that kind of stock, and they escape without his fault, he is not guilty of negligence, and is not guilty of permitting the stock to run at large, and he may recover, regardless of the fence law. This is the rule adopted in this state. Missouri Pacific Ry. Co. v. Johnston, 35 Kan. 58, 10 Pac. 103; Osborne v. Kimball, 41 Kan. 187, 21 Pac. 163; A. T. & S. F. R. Co. v. Riggs, 31 Kan. 622, 3 Pac. 305; K. P. Ry. Co. v. Wiggins, 24 Kan. 588.

The mules were killed February 28, 1902, and the trial was had in September, 1903. On the trial the plaintiff introduced a witness named Ray, who testified that in September, 1903, he had made shipments from Effingham, on the Central Branch Line, and had received bills of lading therefor purporting to be issued by the Missouri Pacific Railroad Company, one of which he produced, and it was offered and introduced in evidence over the objection of the defendant. It is insisted that this was error. The contention is made that presumptions do not operate retrospectively, and that the fact that the defendant was operating this line of road in September, 1903, was not a circumstance which could be considered by the jury as tending to show that it operated the line 18 months previous, or in February, 1902. The admission of this bill of lading was not prejudicial to the defendant, in view of the testimony of Mr. Waggener, one of the defendant's attorneys. He testified as follows: "Q. Do you know how freight bills or bills of lading were made out for freight shipped over what you call the Central Branch Company? A. Yes, sir; I know how some are made out. Q. Is it not a fact they were made out on the blanks of the Missouri Pacific Railway Company? A. That is my judgment. Q. You understand, then, in the matter of receiving and shipping freight, the business was done in the name— so far as the public knew anything about it-in the name of the Missouri Pacific Railway Company? A. In 1899 or 1900 the Missouri Pacific Railroad Company had a lease of the Union Pacific Railroad Company. The Central Branch portion of it was foreclosed, and the Central Branch Railway Company organized and purchased this property. Since that time these blanks that has been in the offices of the Central Branch while the Missouri Pacific operated it were used. Q

Those were the blanks of the Missouri Pacific Railroad Company? A. Yes; had that name on it. Q. So that all contracts were made on Missouri Pacific blanks? A. As I understand all contracts of shipment that have been made, those I have seen, since they got a lease on it, during all that time. Q. Since 1898? A. I think so. Q. And during the year 1902 contracts for the shipment of freight over this line of railroad, which you have spoken of as the Central Branch, were made in the name of the Missouri Pacific Railway Company? A. I could not say all were. I have seen contracts of shipment over the line of the Central Branch Company that were made on the Missouri Pacific Railway Company's blanks. Q. Have you ever seen any other contracts of shipments for freight shipped over that road since 1898 that were not Missouri Pacific blanks? A. No, sir; I have not. Q. Tickets that were sold over that line of road were in the name of the Missouri Pacific Railway Company? A. I could not tell you about that. I don't know that I ever saw one but my judgment is they are. Q. And they were in the year 1902? A. I presume they were. There may be Central Branch tickets. I don't know anything about that. I never bought one over the road, and I could not tell you." That the freight bills used on the Central Branch Railroad were Missouri Pacific blanks was not controverted. Therefore no prejudice resulted to the defendant in the admission of the blank produced by Ray.

The only remaining question that requires our attention is the alleged error committed by the court in refusing to give the thirtysecond and thirty-fifth instructions requested by the defendant. These instructions enumerated a number of facts appearing in the testimony, and the court was asked to instruct the jury that those enumerated would not be sufficient to justify the jury in finding that the defendant was operating the line of railroad at the time the stock was killed. The facts thus enumerated were all circumstances which, considered with the other testimony, tended to prove that the defendant was operating the Central Branch Line when the stock was killed. It would be a dangerous, if not unauthorized, practice for the trial judge to carve out of a general mass of testimony tending to prove an ultimate fact, certain portions of such testimony, and instruct the jury that the existence of the facts thus testified to would not authorize them in finding the ultimate fact. Where testimony has been introduced generally, without objection, tending to prove the existence of a certain fact, and no part of it is withdrawn by instructions, the jury should consider the whole of the testimony in arriving at a conclusion. Evidence offered in a case is offered in its entirety, and should be so considered by the jury. The court

BURCH, J. After listening to a reargument of this cause, and reconsidering it in the light of such argument, the court is satisfied with the conclusions stated in its former opinion, reported in volume 79 of the Pacific Reporter, at page 673. Even if the words "as herein more specifically mentioned and described" related generally to the facts constituting the plaintiff's cause of action, still but one negligent act on the part of the defendant was described, and that was the failure to give the statutory warning.

On the reargument it was suggested that the issues were enlarged by the conduct of the parties at the trial, but a careful examination of the record shows that the defendant at all times protected its rights to have the controversy kept within the limits fixed by the pleadings. The plaintiff in presenting his case did seek to expand his charge of negligence by proving the speed of the train. This effort the defendant vigorously opposed by objections to the testimony before it was given, and by motions to strike it out after it had been admitted. The court, however, approved the plaintiff's course, and refused to exclude the evidence from the consideration of the jury. With a new issue thus thrust upon it against its will, the defendant undertook to make the best of the situation by showing a proper management of the train, taking into account its speed; but, by a request for an instruction, it again sought to limit the jury's inquiry to the single issue presented by the petition. Under these circumstances it cannot be said that the defendant accepted the new issue tendered by the plaintiff's evidence, or consented that it should be tried, or acquiesced in its submission to the jury.