of itself or its employés; Pacific Express Co. v. Foley, 46 Kan. 457, 26 Pac. Cited in note in 32 Am. Dec. 504, on limitation of carrier's liability; in 88 Express companies-Duties. Cited in note in 61 Am. St. Rep. 364, 368, 3 KAN. 212, GOFF v. RUSSELL Default judgment-Proof of case before the judge.—Cited in Union Pac. Cited in note in 20 L. R. A. (N. S.) 15, on necessity of jury to compute dam- Issue of summons-Defects in præcipe.-Cited in Manspeaker v. Bank of Cited in note in 20 L. R. A. 426, on effect of writ or process issued without 3 KAN. 215, ROOT v. MCGREW Homestead exemptions-Impairment of contract.-Cited in note in 87 3 KAN. 217, BUTCHER v. AULD Partner-Compensation.-Cited in note in 17 L. R. A. (N. S.) 391, 415, on 3 KAN. 221, BURNES v. McCUBBIN, 87 AM. DEC. 468 Forfeiture of contract for breach of condition.-Cited in Union Pac. Ry. Unlawful detainer.—Cited in note in 120 Am. St. Rep. 51, on unlawful de- tainer. 3 KAN. 227, BOSTON v. WRIGHT Appeals in attachment cases. Cited in Gates v. Sanders, 13 Kan. 411, holding that an attachment is merely auxiliary, so that an appeal only from the judgment will not bring up the dissolution of the attachment; Butcher v. Taylor, 18 Kan. 558, holding that a justice's order dissolving an attachment is not a final judgment, so as to be appealable. Sufficiency of notice to defendant served by publication in attachment case. Cited in Rapp v. Kyle, 26 Kan. 89, holding that a notice to a defendant, served by publication, that an attachment had been levied on his property, was not fatally defective because it did not state that, in case of his default, an order for the sale of the attached property would be entered. Action for wrongful attachment-Time to sue. Cited in Kerr v. Reece, 27 Kan. 469, holding that an action for wrongful attachment may be begun as soon as the attachment is dissolved, though the main action is not yet determined. Who may move to discharge attachment.-Distinguished in Bank of Santa Fé v. Haskell County Bank, 54 Kan. 375, 38 Pac, 485, holding that a judgment creditor, whose execution has been levied on property of the debtor, subject to a prior attachment, may move to discharge the attachment, though he cannot come into the main action. Intervening parties-Interest in litigation. Cited in Goodrich v. Williamson, 10 Okl. 588, 63 Pac. 974, holding that, in an action by the transferee of a note against the maker, a creditor of the husband of the payee could not intervene, claiming that the note was made to the payee in fraud of her husband's creditors, and praying that the proceeds of the note be given to the intervener. Cited in note in 23 L. R. A. (N. S.) 541, on right of other claimants of property to intervene in attachment. 3 KAN. 231, GARRETT v. WOOD Jurisdiction of justice in replevin-Determination. Cited in Leslie v. Reber, 4 Kan. 315, holding that the proof of value, and not the action of the appraisers, determines the jurisdiction of the justice of the peace in replevin. Form of judgment for defendant in replevin.-Cited in Hall v. Jenness & Cohen, 6 Kan. 356, holding that a judgment for defendant in replevin, where the property has been delivered to plaintiff, must be in the alternative, for a return of the property, or for its value if return cannot be had. Measure of damages for wrongful attachment. Cited in Brasher v. Holtz, 12 Colo. 201, 20 Pac. 616, holding that where judgment is rendered for the claimant of attached property, and it cannot be returned, the damages are the value of the property at the time of levy, with interest, and not the value of the use for the time of detention. 3 KAN. 237, MCCARTY v. BAUER Obligation of professional men to their employers. Cited in Branner v. Stormont, 9 Kan. 51, as to the implied contract of a surgeon as to his skill and the care to be given the patient. Officers-Liabilities. Cited in note in 90 Am. Dec. 730, 731, on liability of officer to individual for failure to perform public duties. 3 KAN. 242, SHAW v. SEARS Elements of tender.—Cited in Latham v. Hartford, 27 Kan. 249, holding that an offer to pay a certain sum to avoid trouble, coupled with a denial of any liability, is not a tender which entitles the plaintiff to a judgment for the sum offered. Cited in note in 77 Am. Dec. 476, on sufficiency of tender. 3 KAN. 244, SWARTZEL v. DEY Review of discretion of trial court as to order of trial.-Cited in St. Joseph & D. C. R. Co. v. Dryden, 17 Kan. 278, holding that the refusal to open the case to allow plaintiff to put in further evidence, after a demurrer to the evidence had been sustained, was a matter in the discretion of the trial court, and not reviewable except in case of abuse. Review of amount of damages.—Cited in Choctaw, O. & G. R. Co. v. Burgess, 21 Okl. 653, 97 Pac. 271, to the point that a judgment for damages will be reversed when they are greatly excessive, or so much so as to indicate passion or prejudice in the jury. Cited in note in 26 L. R. A. 392, on power of appellate court over verdict for excessive damages. Libel and slander-Justification.—Cited in note in 91 Am. St. Rep. 299, on justification in slander and libel. Same-Charge of unchastity.—Cited in note in 24 L. R. A. (N. S.) 591, on slander and libel in charging woman with unchastity. Same-Truth as defense. Cited in note in 31 L. R. A. (N. S.) 144, on truth as defense to civil action for defamation. 3 KAN. 250, STATE v. BARNETT, 87 AM. DEC. 471 Information-Necessity of alleging preliminary examination.—Cited in State v. Finley, 6 Kan. 366; State v. Geer, 48 Kan. 752, 30 Pac. 236-holding that an information need not allege that accused has had a preliminary examination, though he must have had one in fact. Same-Amendment.—Cited in State v. Cooper, 31 Kan. 505, 3 Pac. 429, holding that, where the information charges a crime in the past tense, but alleges the date of commission as subsequent to the date of the information, it may properly be amended. Same-Language of statute.-Cited in State v. Foster, 30 Kan. 365, 2 Pac. 628, holding that an information charging that defendant did pass, utter, and publish as true, does not charge mere conclusions, but facts, and, being in the language of the statute, is sufficient; State v. Beverlin, 30 Kan. 611, 2 Pac. 630, holding that an information charging that defendant "did commit an assault and battery" was not open to the objection that it charged a mere conclusion, though the statute used the words "assault and beat"; State v. Morrison, 46 Kan. 679, 27 Pac. 133, holding that the information need not use the exact language of the statute, but other words of the same meaning are sufficient. Validity of law authorizing prosecution by information.-Cited in State v. Whisner, 35 Kan. 271, 10 Pac. 852; In re Wright, 3 Wyo. 478, 27 Pac. 565, 13 L. R. A. 748, 31 Am. St. Rep. 94-holding that a law authorizing prosecution of crimes by information violates neither the state nor federal Constitution; State v. Newton, 74 Kan. 561, 87 Pac. 757, holding that the fifth amendment to the United States Constitution, forbidding that any one be held to answer for a capital or otherwise infamous crime unless on presentment or indictment by a grand jury, applies only to the federal courts, and does not preclude prosecution by information in state courts; State v. Tucker, 36 Or. 291, 61 Pac. 894, 51 L. R. A. 246, holding that prosecution of crime by information does not deprive the accused of due process of law. 11 NOTES ON KANSAS REPORTS (242-276 Time of offense-Necessity of pleading and proof.-Cited in State v. Harp, 31 Kan. 496, 3 Pac. 432; Cecil v. Territory, 16 Okl. 197, 82 Pac. 654, 8 Ann. Cas. 457; State v. Myrberg, 56 Wash. 384, 105 Pac. 622-holding that, except when time is an essential element of the offense, the exact time of commission need not be stated in the information, but it need only appear that it was within the period of limitations; State v. Peak, 9 Kan. App. 436, 58 Pac. 1034, nor proved at the trial. Cited in note in 3 L. R. A. (N. S.) 1021, on charge of time and place in indictment for homicide. Lack of preliminary examination-Mode of objection.-Cited in State v. Woods, 49 Kan. 237, 30 Pac. 520, holding that the objection of a failure to give defendant a preliminary examination must be raised by plea in abatement; Canard v. State, 2 Okl. Cr. 505, 103 Pac. 737, 881, 139 Am. St. Rep. 949, holding that, on demurrer to an information for failure to show that defendant had had a preliminary examination, it will be presumed that the examination was held or waived. Indictment for robbery.-Cited in note in 70 Am. Dec. 190, on indictment for robbery. 3 KAN. 257, JOHNSON v. REYNOLDS Liability of hotel keeper-Distinction between boarder and guest.Cited in Haff v. Adams, 6 Ariz. 395, 59 Pac. 111, on the distinction between a boarder and a guest, as bearing on the hotelkeeper's liability for loss of property. Cited in note in 7 Am. Dec. 451; 62 Am. Dec. 590; 105 Am. St. Rep. 937on who are guests at inn; in 18 Am. Rep. 133; 99 Am. St. Rep. 601-on liability of innkeepers for injury to, or loss of, guest's property. 3 KAN. 263, MONTGOMERY v. STATE Objections to jurors and grand jurors.-Cited in State v. Jackson, 27 Kan. 581, 41 Am. Rep. 424, holding that an objection to a juror in a criminal case, that he was not an elector, because he had served in the Southern army in the Civil War and his disqualification had not been removed, is too late when first made by motion for new trial and in arrest; State v. Donaldson, 43 Kan. 431, 23 Pac. 650, holding that a plea in abatement to an indictment, alleging that two of the grand jury were not on the assessment roll, and that others were residents of a city of the second class and had not yet registered as voters, is bad; In re Wilson, 140 U. S. 575, 11 Sup. Ct. 870, 35 L. Ed. 513, holding that an objection to the composition of the grand jury is waived when not taken as required by statute. Grand jury-Organization.-Cited in note in 27 L. R. A. 781, on organization of grand jury. Same-Qualifications.—Cited in note in 28 L. R. A. 203, on qualification of grand jurors. 3 KAN. 276, WHITE-CROW v. WHITE-WING Rulings on motions as res judicata.-Cited in Benz v. Hines, 3 Kan. 390, 89 Am. Dec. 594; Rice v. Poynter, 15 Kan. 263; Briggs v. Tye, 16 Kan. 285; Mills v. Pettigrew, 45 Kan. 573, 26 Pac. 33-holding that a decision on a motion to confirm a judicial sale is not a bar to a subsequent action between the parties to determine their rights, based on claims of fraud and combination to prevent competition; Watson v. Jackson, 24 Kan. 442, holding that the denial of a motion by a justice to discharge an attachment as to certain articles claimed to be exempt is not conclusive as to their exempt nature in replevin for them by the attachment debtor; Board of Com'rs of Lyon County v. Sergeant, 24 Kan. 572, holding that an order of the county commissioners correcting a personal property assessment was not conclusive in an action to enjoin collection of the tax; Rathbone v. Sterling, 25 Kan. 444, to the point that rulings on motions are not generally res judicata; Capital Bank of Topeka v. Huntoon, 35 Kan. 577, 11 Pac. 369, as to the conclusiveness of the confirmation of a sheriff's sale as to irregularities therein; Western Grocer Co. v. Alleman, 81 Kan. 543, 106 Pac. 460, 27 L. R. A. (N. S.) 620, 135 Am. St. Rep. 398; Havens v. Pope, 10 Kan. App. 299, 62 Pac. 538-that the denial of a wife's motion to vacate the attachment of land levied on in a suit against her husband, attacked both for irregularity and on the ground that she was the owner, while conclusive as to the question of regularity, is not conclusive as to the ownership of the land; Shelby v. Ziegler, 22 Okl. 799, 98 Pac. 989, holding that a ruling on a motion to discharge an attachment as having been levied on exempt property is not conclusive in a subsequent direct proceeding in another action to subject the property to the judgment in the attachment suit. Limited in Board of Com'rs of Wilson County v. McIntosh, 30 Kan. 234, 1 Pac. 572, on the question of the conclusiveness of the decision on a motion to retax costs. Distinguished in Hoge v. Norton, 22 Kan. 374, holding that the granting of a motion to vacate an attachment was conclusive that it was wrongfully obtained, in an action on the attachment bond. Right to remedy by motion and independent suit also. Cited in Kendall Boot & Shoe Co. v. August, 51 Kan. 53, 32 Pac. 635, holding that it was no objection to a pending motion by a claimant of attached goods that the claimant also brought an action of replevin for them; Gale Mfg. Co. v. Sleeper, 70 Kan. 806, 79 Pac. 648; Love v. Cavett, 26 Okl. 179, 109 Pac. 553-holding that the right of one, whose land has been levied on under an execution against another, to move to set aside the levy, does not preclude his bringing an independent suit to enjoin the execution sale; Crist v. Cosby, 11 Okl. 635, 69 Pac. 885, holding that, where an execution is wrongfully levied on property, the party in interest can proceed by motion to vacate in the court out of which it issued, and cannot enjoin the sale in an independent suit. Right of persons not parties to make motions in suit.-Cited in Harrison & Willis v. Andrews, 18 Kan, 535, holding that a person claiming to own property sold on execution against another may move to set aside the sale, though not a party to the suit; Green v. McMurtry, 20 Kan. 189, holding that a party on whom the summons has been served and an attachment levied after the death of the plaintiff is not precluded from moving to set aside both proceedings by the fact that technically he is not yet a party to the suit; Long Bros. v. Murphy, 27 Kan. 375; Knight v. Rhoades, 10 Kan. App. 38. 61 Pac. 869; Sparks v. City Nat. Bank of Lawton, 21 Okl. 827, 97 Pac. 575-holding that one claiming to own attached property may move to vacate the attachment, though not a party to the main suit; Cox Mfg. Co. v. August, 51 Kan. 59, 32 Pac. 636, holding that an assignee for the benefit of creditors may move in a suit against his assignor to discharge an attachment on the property passing by the assignment; Boyd v. Huffaker, 40 Kan. 634, 20 Pac. 459, to the proposition that any one interested in any suit or proceeding may appear therein, and by motion have all his rights and interests protected. Motions to confirm or set aside sale and to vacate levy-Discretion of court. Cited in Treplow v. Buse, 10 Kan. 170; Gapen v. Stephenson, 17 Kan. 613; Halsey v. Van Vliet, 27 Kan. 474; Sparks v. City Nat. Bank of Lawton, 21 Okl. 827, 97 Pac. 575-holding that the confirmation or refusal to confirm a sheriff's sale of land, not being res judicata of the grounds of opposition, is a matter for the discretion of the trial court; Western Grocer Co. v. Alleman, |