the answer to be filed? The record is wholly silent as to what showing was made by the defendant. It does not appear that the court abused its discretion in this regard. Tefft v. Firey, 22 Kan. 761; Davis v. Wilson, 11 Kan. 75; Brown v. Holmes, 19 Kan. 567.

2. That there was error in rejecting the testimony of Charles Wingrove, the husband of the plaintiff. His testimony was offered generally, without specifying in any manner that the testimony offered concerned transactions in which the witness had acted as the agent of the plaintiff. The husband is an incompetent witness for the wife, except concerning transactions in which he acted as the agent of the wife. Our attention is directed to a power of attorney in the record made by plaintiff, which sets forth that "Charles Wingrove is appointed and constituted the lawful attorney in fact for plaintiff; with authority to bring suit in all courts, to defend her in court, to sign her name to papers pertaining to or connected with any suit for or against her, and to appear for her." This power of attorney was not offered in evidence on the trial of the case. It appears to have been offered in a preliminary hearing, before the court, when the right of Charles Wingrove to appear as an attorney in the case was challenged. This power of attorney in no way tended to prove that the witness had acted as agent for the plaintiff in transactions about which he proposed to testify. He was offered, so far as the record shows, as a witness for all purposes. Error will not be presumed; it must be shown. There is no error apparent in the rejection of this testimony. The husband was an incompetent witness, unless the plaintiff should show, or offer to show, that the testimony offered concerned transactions in which he acted as her agent. Paulsen v. Hall, 39 Kan. 365, 18 Pac. 225; Code Civ. Proc. § 323. The other offers of testimony which were rejected were offers of secondary evidence, to prove title to the real estate in question. No foundation was laid for secondary evidence. In a supplemental brief the plaintiff seems to abandon this alleged error, and rely upon the fact "that title to the land did not have to be proven"; that "possession was the only thing necessary to be shown."

3. It is contended that the court erred in sustaining the defendant's demurrer to the evidence. The plaintiff claimed to be the owner of the land upon which the crops and timber in controversy were growing; that her damage amounted to $225; and that the damage was done by trespassing cattle, owned or in the possession of the defendant. In or der for the plaintiff to recover, she must prove (1) that she was the owner of the land in controversy to the extent of showing a right paramount to any right of the defendant; (2) that her crops and land were damaged by trespassing cattle; (3) that the cattle were owned by or were under the control of the defendant. As to the first proposition, the

record shows a lack of proof of title, legal or equitable. The evidence does not prove possession, nor the right of possession. The proof of possession by the plaintiff would be proof of title as against a wrongdoer. It may be said to be prima facie evidence of title, and, in the absence of other testimony, would be sufficient to sustain a judgment in favor of plaintiff. Not one word of evidence is contained in their record which proves or tends to prove that plaintiff was in possession of the real estate in question. The evidence does not prove, nor is there any evidence which tends to prove, that the plaintiff had title to the land in controversy, possession of it, or that she had the right of possession, at any time previous to the commencement of this action in the trial court. As to the second proposition, the petition of the plaintiff states and the evidence shows that the land upon which the damages were done and suffered was uninclosed. The land not being inclosed by a lawful fence, before she could recover for damages done by cattle, she would be required to prove that the cattle were trespassing; that is, that they were unlawfully upon the land. This she could do by proving that the herd law had been put in operation in Clay county by order of the board of county commissioners, in pursuance to chapter 193, Laws 1872. No effort was made to prove that the herd law was in operation in said county. It is argued by the plaintiff that where cattle are driven on the land in possession of another, and damage is thereby occasioned, the wrongdoer cannot set up the want of a lawful fence as a justification of his conduct. This proposition seems to be correct in principle and law. In the case under consideration the petition says that "the defendant wrongfully drove his cattle, and other cattle in his possession, into and upon such lands. But there is no proof of this allegation in the record. The evidence simply shows the cattle to have been permitted to run at large unattended. The failure of the plaintiff to prove that the cattle were unlawfully upon. the land justified the court in sustaining the demurrer to the evidence. From what we have said, it follows that the court properly overruled the motion for a new trial. The judgment is affirmed. All the judges concurring.

(6 Kan. App. 334) STATE v. KNOBY.

(Court of Appeals of Kansas, Northern Department. C. D. Nov. 15, 1897.) INTOXICATING LIQUORS-ILLEGAL SALESINDICTMENT-SUFFICIENCY.

1. An information charging "that on or about the fourth day of November, A. D. 1896, in the county of Lincoln, and state of Kansas, one Luther Knoby did then and there unlawfully sell, barter, and give away spirituous, malt, vinous, and fermented intoxicating liquors without taking out and having a permit therefor as provided by law, and then and there not being lawfully and in good faith engaged in the busi

ness of a druggist," is not direct and certain as to the offense charged. It leaves the defendant uncertain as to which of the two offenses he will be required to meet,-"without taking out a permit therefor," or whether he is to meet the charge that the sale was made by him having a permit, and "not then and there being lawfully and in good faith engaged in the business of a druggist."

2. An information charging "that on or about the 25th of November, A. D. 1896, in the county of Lincoln, and state of Kansas, one Luther Knoby did then and there unlawfully own and keep a place where intoxicating liquors were sold, bartered, and given away in violation of law, and did then and there permit persons to resort for the purpose of drinking intoxicating liquors as a beverage, and intoxicating liquors, then and there being kept for sale, barter, and delivery in violation of law, such place being in a building located on lot 12, block 28, in the town of Sylvan Grove, in Lincoln county, Kansas, to the common nuisance of the people of said county and state, contrary to the statute in such cases made and provided,' sufficiently describes the location to sustain a judgment of conviction thereunder.

(Syllabus by the Court.)

Appeal from district court, Lincoln county; R. F. Thompson, Judge.

Luther H. Knoby was convicted of a violation of the prohibition law, and appeals. Affirmed in part, and reversed in part.

Geo. D. Abel, for appellant. F. H. Dunham, E. A. McFarland, and L. C. Boyle, for appellee.

MCELROY, J. The defendant was prosecuted upon information for a violation of the prohibitory law. The jury found him guilty as charged in the third, fourth, and fifth counts of the information, from which he appeals.

The counts on which the defendant was convicted are as follows: Third count: "That on or about the 4th day of November, A. D. 1896, in the county of Lincoln, and state of Kansas, one Luther Knoby did then and there unlawfully sell, barter, and give away spirituous, malt, vinous, and fermented intoxicating liquors without taking out and having a permit therefor as provided by law, and then and there not being lawfully and in good faith engaged in the business of a druggist." Fourth count: "That on or about the 1st day of November, A. D. 1896, in the county of Lincoln, and state of Kansas, one Luther Knoby did then and there unlawfully sell, barter, and give away spirituous, malt, vinous, and fermented intoxicating liquors without taking out and having a permit therefor as provided by law, and then and there not being lawfully and in good faith engaged in the business of a druggist." Fifth count: "That on or about the 25th day of November, A. D. 1896, in the county of Lincoln, and state of Kansas, one Luther Knoby did then and there unlawfully own and keep a place where intoxicating liquors were sold, bartered, and given away in violation of law, and did then and there permit persons to resort for the purpose of drinking intoxicating liquors as a beverage,

and intoxicating liquors then and there being kept for sale, barter, and delivery in violation of law, such place being in a building loca ted on lot 12, block 28, in the town of Sylvan Grove, in Lincoln county, Kansas, to the common nuisance of the people of said county and state, contrary to the statute in such cases made and provided." The sufficiency of the information was challenged by motion to quash motion to require the plaintiff to file a bill of particulars setting forth the facts constituting the alleged violation of law attempted to be charged.

The third and fourth counts of the information were filed under the provision of section 386 of the crimes act, which reads: "Any person without taking out and having a permit to sell intoxicating liquors, as provided in this act, or any person not lawfully and in good faith engaged in the business of a druggist, who shall directly or indirectly sell or barter any spirituous, malt, vinous, fermented, or other intoxicating liquors, shall be deemed guilty of a misdemeanor, * Section 386 creates two separate and distinct. crimes in relation to the sales of intoxicating liquor. One is: "Any person without taking out and having a permit to sell intoxicating liquors as provided in this act, * who shall directly or indirectly sell or barter any spirituous, malt, vinous, fermented, or other intoxicating liquors shall be deemed guilty of a misdemeanor." The other: “Any person not lawfully and in good faith engaged in the business of a druggist who shall directly or indirectly sell or barter any spirituous, malt, vinous, fermented or other intoxicating liquors, shall be deemed guilty of a misdemeanor." These counts of the information are based upon both of these provisions. Under the first clause of the paragraph a person is guilty who, without having a permit to sell intoxicating liquors, sells the same; under the second clause, a person having obtained a permit as a druggist, but who at the time of selling the intoxicating liquors is not lawfully and in good faith engaged in the business of a druggist, violates the statutes. Under the first clause, evidence should be produced to show that the person charged has not taken out a permit to sell intoxicating liquors; and, under the last clause, evidence should be produced showing that, although the person charged has a permit, he is not lawfully and in good faith engaged in the business of a druggist. It will be observed as to the third and fourth counts that the defendant is charged: "Did then and there unlawfully sell, barter, and give away spirituous, malt, vinous, and fermented intoxicating liquors without taking out and having a permit therefor as provided by law, and not then and there being lawfully and in good faith engaged in the business of a druggist." In what particular the sale was unlawful is not pointed out by the information. Each of these counts are indefinite and uncertain for the reason that each charge two

separate and distinct violations of law. Section 104, Code Cr. Proc., reads: "The indictment, or information, must be direct and certain as it regards the party and the offense charged." This information is not direct and certain as to the offense charged. It leaves the defendant uncertain as to which of the two offenses he will be required to meet. He does not know whether the state proposes to show that such sale was made "without taking out and having a permit therefor," or whether he is to meet the charge that the sale was made by him having a permit, and "not then and there being lawfully and in good faith engaged in the business of a druggist." The charges in these counts contradict each other.

Complaint is made that the court erred in overruling the defendant's plea in abatement, for the reason that the defendant's name was incorrectly spelled Luther "Knobby." In the plea in abatement he states that he is known by the name of Luther "Knoby," and that such is his true name. The court overruled the plea in abatement, and ordered that all further proceedings in this case should be had against the defendant in his true name, Luther "Knoby." Code Cr. Proc. 224. The court properly overruled the plea in abatement.

Complaint is made that the court failed to define "reasonable doubt." The court might very properly have defined reasonable doubt upon request of the defendant. We see no error in the court failing to define this term, inasmuch as the defendant did not request such instruction. There are few errors which are available in this court unless an exception is saved in the trial court. As a rule, a party must ask the court for such instructions as he desires to have submitted to the jury before he can be heard to complain.

The fifth count of the information is drawn under the provisions of section 392. This count of the information is sufficient to sustain the conviction. The building and location of the business is sufficiently described. The conviction and sentence should be sustained as to this count. The judgment will be affirmed as to the conviction under the fifth count of the information, and the judg ment of conviction under the third and fourth counts of the information will be reversed, and the case remanded for a new trial thereon. All the judges concurring.

(6 Kan. App. 330)

BOARD OF COM'RS OF CLOUD COUNTY v. CITIZENS' NAT. BANK OF CONCORDIA et al.

(Court of Appeals of Kansas, Northern Department, C. D. Nov. 15, 1897.) APPEAL-CASE-MADE-AMENDMENT.

A case-made for the court of appeals cannot be amended or supplemented in this court by inserting anything therein or attaching anything thereto which did not belong to the case-made, and constitute a part thereof, when it was orig

inally settled and signed by the judge, and attested by the clerk, of the court below. (Syllabus by the Court.)

Error from district court, Cloud county; F. W. Sturges, Judge.

Action between the board of commissioners of Cloud county, Kan., and the Citizens National Bank of Concordia, and others. From the judgment the commissioners bring error, to correct case-made. Overruled.

Theo. Laing and W. W. Caldwell, for plaintiffs in error. L. J. Crans and A. L. Wilmoth, for defendants in error.

WELLS, J. This case is before the court upon a motion to correct the case-made. It appears that when the case-made was prepared the instructions of the court, as given to the jury, had been mislaid, and could not be found, and a statement to that effect was inserted in the record. We are now presented with a certificate of the judge that the instructions have been found, and a copy thereof has been attached to said certificate; and we are asked to amend the case-made by striking out that part thereof in relation to their being lost, and inserting the instructions as certified to have been given. This raises the question as to the right of an appellate court to amend a case-made. In Parker v. Machine Co., 24 Kan. 31, it was held that a motion for a new trial could not be supplied by stipulation of counsel. In Giles v. Austin, 54 Kan. 616, 28 Pac. 811, it was held that, where a motion for a new trial in another case had been accidentally inserted in the casemade in place of the one actually filed therein, it was fatal to a consideration thereof. In Snavely v. Buggy Co., 36 Kan. 106, 12 Pac. 522, it was held that "a case-made for the supreme court cannot be amended or supplemented in the supreme court by inserting anything therein or attaching anything thereto which did not belong to the case-made, and constitute a part thereof, when it was originally settled by the judge, and attested by the clerk of the court below." This last case seems to be decisive of the question at issue herein, but it seems to be thought by the plaintiff in error that the decisions of our supreme court upon this question have not been uniform or consistent; but this appears only upon a superficial view, and not upon a careful consideration of all of the decisions. In Railroad Co. v. Whitbeck (Kan. Sup.) 48 Pac. 18, the supreme court held that the seal of the trial court could be attached to the casemade even after one year. In Russell v. Anthony, 21 Kan. 450, it held that service of the case could be shown by outside evidence. In Wilson v. Janes, 29 Kan. 233, it was held that evidence could be heard to show the matters pertaining to the settling and signing of the case. In Heaton v. Bank (Kan. App.) 47 Pac. 576, this court held that, "when the record does not affirma

re

tively show the amount or value of the subject-matter in controversy, evidence aliunde the record is admissible to establish that fact." In Jones v. Kellogg, 51 Kan. 263, 33 Pac. 997, it was held that "the ruling of the lower court, or of the judge thereof, complained of and assigned for error, must be shown by, and embodied in, the casemade itself, and they cannot be shown by any other or extrinsic evidence; but other matters or things to make the case viewable may generally be shown by extrinsic evidence." Although in the last above cited case the question was as to the service of the case within the time fixed by the court, and thus clearly within the authority of Wilson v. Janes, supra, yet Judge Horton, in deciding it, on page 272, 51 Kan., and page 998, 33 Pac., says: "While it has always been held by this court, where the case has been brought to this court upon a case-made, and not upon a transcript, that the rulings of the lower court, or of the judge thereof, complained of and assigned for error, must be shown by, and embodied in, the case itself, and that they cannot be shown by any other, or by extrinsic, evidence,-not even by the certificate of the judge himself,-yet we have about as uniformly held that all other matters or things to make the case reviewable may be shown by extrinsic evidence, or in other words, by evidence outside of the case-made. The decisions, however, of this court upon this subject have seldom been reported; for usually, in overruling a motion to dismiss a petition in error upon the ground that the case upon which it was founded had not been made and served within the proper time, or was otherwise irregular, the court has overruled the motion without delivering any written opinion upon the question." From a careful consideration of these cases, it will be seen that the decisions are harmonious and consistent in holding that the case-made as signed by the judge, cannot be amended, but, as to matters and things other than the rulings of the lower court, or judge thereof, necessary to make the case reviewable, they may be generally shown by evidence aliunde the record. The motion will be overruled. All the judges concurring.

(6 Kan. App. 295)

CASNER v. GAHLMAN. (Court of Appeals of Kansas, Northern Department, C. D. Nov. 15, 1897.)

TAX SALES-NOTICE-REDEMPTION NOTICE. 1. Under paragraph 6955, Gen. St. 1889, a notice of the sale of lands for the nonpayment of taxes which does not state that the sale will be made by the county treasurer is defective, and a sale based upon such notice is voidable.

2. There is no authority for including in the redemption notice under tax sale the amount paid by the county for advertising the property for sale, nor the amount paid by the purchaser

for a tax certificate. The notice should state "the amount of taxes charged, with interest." (Syllabus by the Court.)

Error from district court, Saline county; R. F. Thompson, Judge.

Action by Joseph Gahlman against Nicholas Casner. Judgment for plaintiff. Defendant brings error. Affirmed.

Fred. W. Casner, for plaintiff in error. Burch & Burch, for defendant in error.

MCELROY, J. This was an action commenced in the district court of Saline county by Joseph Gahlman, defendant in error, as plaintiff, against plaintiff in error, as defendant, for the recovery of the N. E. 4 of section 17, township 16, range 1 W. The plaintiff below, in his petition, alleges ownership and right to the possession of the lands described. The defendant answered by general denial, and, further, by way of cross petition, and alleged ownership and actual possession under tax deed. The plaintiff replied, admitting possession in the defendant, the execution, delivery, and existence of the tax deed, and alleges that errors sufficient to invalidate the tax deed existed therein in the proceedings anterior to the issuance of the tax deed. A trial was had before the court, without a jury, upon the pleadings and an agreed statement of facts. The findings and judgment of the court were for the plaintiff (defendant in error), and against the defendant (plaintiff in error). Motion for a new trial was filed and overruled, and the case presented to this court for review.

It is conceded by the parties to this action that the defendant in error holds the legal title, and is entitled to the possession, of the real estate in controversy, unless such title was devested by the tax proceedings culminating in the tax deed under which plaintiff in error claims. Two questions are presented and argued to this court:

1. Was the notice given of the tax sale a sufficient notice under the statutes? The notice as published reads: "Notice is hereby given that the following described lands and town lots, or so much thereof of each tract as may be necessary for that purpose, will on Monday, October 27, 1890, and during the next succeeding days thereafter, be sold at public auction at my office, in the court house in Saline county, Kansas, for the taxes and charges due thereon for the year A. D. 1889." Before any real estate can be sold at tax sale on account of nonpayment of taxes thereon, notice of such sale is required to be given, in accordance with paragraph 6955, Gen. St. 1889, which is as follows: "The county treasurer shall, between the first and tenth of July in each year, make out a list of all lands and town lots subject to sale, describing such lands and town lots as the same are described on the tax roll, with an accompanying notice stating that so much of each tract of land or town lots described in said list as

may be necessary for that purpose will, on the first Tuesday of September next thereafter, and the next succeeding days be sold by him at public auction, at his office for taxes and charges thereon." By this statute, the legislature has determined and expressed what shall be the essential and necessary elements of this notice: (1) Description of land or lots to be sold; (2) certainty as to the day of sale; (3) that the sale shall be an official sale by the county treasurer; (4) that the sale shall be at public auction; (5) certainty as to the place of sale. The notice does not state that the sale will be conducted by the county treasurer. This sale, to be a legal one, must be an official sale. The treasurer is an agent of the state. This sale might be conducted by any county officer or any auctioneer, only that the legislature has seen fit to require such sale to be made by the treasurer; not only that the sale be made by the treasurer, but the legislature has seen fit to require that the notice of the sale shall set forth that the sale will be made by the county treasurer. This requirement of the notice is as peremptory as any other requirement of the notice. It is within the power of the legislature to determine what the notice shall contain, and, when determined, such determination is conclusive. The notice is defective and insufficient, and the sale based upon the same is a voidable sale.

2. Was the final redemption notice a valid notice? Paragraph 6986, Gen. St. 1889, reads: "The county treasurer at least four months before the expiration of the time limited for redeeming lands as aforesaid, shall cause to be published in some paper published in or of general circulation in his county, once a week, for four consecutive weeks (the publication herein provided to be completed at least four months before the day of sale) a list of all unredeemed lands and town lots, describing

each tract or lot as the same was described on the tax roll, stating the name of the person to whom assessed, if any, and the amount of taxes charged, and interest, calculated to the last day of redemption, due on each parcel." In this case, the tax roll, as set forth in the record, shows the amount of taxes charged against the real estate in question to have been $22.22 and interest upon this amount at the rate of 24 per cent. from the date of sale to the last day of redemption amounts to $15.98, making a total of $38.20, taxes for the year 1889 and interest. The taxes of 1890, paid by the purchaser, were $15.58, and the interest upon that sum to the last day of redemption was $10.40, making a total of $25.98; the total sum for the two years, $64.18. This is the correct amount which should have appeared in the redemption notice. The redemption notice stated the amount of taxes charged, with interest calculated to the last day of redemption, to be $64.80, an overcharge of 62 cents. There is no authority for including in the redemption notice the amount paid by the county for advertising the proper

ty for sale, nor the amount paid by the purchaser for the tax certificate, nor any other cost or charge, nor interest upon charges subsequent to the sale. The notice required should state "description of the land as described on the tax roll," the "name of the person to whom assessed," the "amount of taxes charged and interest to the last day of redemption." The requirements of the statute in this respect are mandatory, and not directory merely; and such error invalidates the notice, and renders voidable the deed. We conclude, therefore, that both the notice of tax sale and the final redemption notice are defective and insufficient to sustain the tax deed. The findings and judgment of the trial court are in accordance with the evidence. The judgment of the trial court will be affirmed. All the judges concurring.

(6 Kan. App. 317) YORK-RITCHIE EXCH. & INV. CO. et al. v. MITCHELL et al.

(Court of Appeals of Kansas, Northern Department, C. D. Nov. 15, 1897.) LIMITATIONS RUNNING OF STATUTE-NOTe Due at OPTION OF HOLDER-NOTICE OF TAX SALE.

1. By the terms of a mortgage securing the payment of a note due in five years, the holder has an option to declare the note due in advance of maturity, by its terms, upon the occurrence of defaults of the maker. There is in such case a further extension of time in the parties' contemplation, and the statute of limitation does not begin to run against the cause of action on the note until the holder exercises such option, by declaring the note due or some act equivalent thereto.

2. Upon the question of the validity of the notice of tax sale, the decision in Casner v. Gahlman, 51 Pac. 56, is followed.

(Syllabus by the Court.)

Error from district court, Saline county; R. F. Thompson, Judge.

Action by William W. Mitchell and others against the York-Ritchie Exchange & Invest. ment Company and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

David Ritchie, for plaintiffs in error. Burch & Burch, for defendants in error.

Was

MAHAN, P. J. There are two questions presented in this case. The first is: the plaintiffs' action upon the note and mortgage barred by the statute of limitations? This contention is based upon a condition in the mortgage which is in substance that, whether the holder elect to pay the taxes and insurance premiums upon the mortgagor's default or not, it was distinctly understood that the legal holder might cause the mortgage to be foreclosed, and should be entitled to the immediate possession of the premises, and the rents and profits thereof. This is but one condition. It does not provide in terms that the debt secured by the mortgage shall become due. No action can be maintained upon the mortgage separate from the note.