of 6 per cent. per annum from the 25th day of July, 1894. The defendant in error answers by general denial, and for a second defense alleges that plaintiffs in error are indebted to him in the sum of $9.12, with interest from July 28, 1894. The case was tried to a jury on the 30th day of March, 1895, and resulted in a verdict for defendant in error for $9.48. The plaintiffs below bring the case here. The right to a review is challenged for the reason that the amount or value in controversy, exclusive of costs, does not exceed $100. Extended comment upon the testimony cannot be made. From the admissions of plaintiffs in error, judgment could not be rendered in their favor for more than $92.63. It is contended that the judgment rendered in favor of defendant in error for $9.48 should be considered a part of the amount or value in controversy. Plaintiffs in error admit their indebtedness to defendant in error in the sum of $5.17. This would leave only $4.31 of defendant in error's judgment over which there could be any controversy. Add this to $92.63, the amount for which judgment could have been rendered under the admissions of plaintiffs in error, and we have $96.94 in controversy. Thus, upon the theory most favorable to plaintiffs in error, it affirmatively appears, from an examination of the record, that the amount or value in controversy, ex-` clusive of costs, and for which judgment could have been legally rendered in the court below, does not exceed $100. The case will be dismissed.

(7 Kan. App. 629)

EQUITABLE MORTG. CO. v. VORE et al. (Court of Appeals of Kansas, Southern Department, C. D. May 14, 1898.) DEMURRER TO EVIDENCE-HARMLESS ERRORAPPEAL.

1. "Upon a demurrer to evidence, the court cannot weigh conflicting evidence, but must consider as true every portion of the evidence tending to prove the case of the party resisting the demurrer." Wolf v. Washer, 4 Pac. 1036, 32 Kan. 533.

2. The incompetent evidence admitted, and the instructions of the court relating thereto, examine 1. Held, that the admission of the testimony was not prejudicial to the rights of plaintiff in error.

3. Where there is competent evidence which, fairly and reasonably considered, supports the verdict, it will not be disturbed.

(Syllabus by the Court.)

Error from district court, Sumner county; James A. Ray, Judge.

J. D. Patterson, one of the defendants in error, purchased the real estate, and assumed and agreed to pay the amount due the Equitable Mortgage Company on its note and mortgage. Ledrue Guthrie was the "correspondent of the company at Wellington, Kan., and through him the loan was made to James Vore." The plaintiff in error commenced this action to foreclose the mortgage. The defendants Patterson filed their separate answers, admitting, as stated in plaintiff's brief, the execution of the note and mortgage, that they had assumed and agreed to pay the amount due the company, and alleging "that, when the said note and mortgage was executed and as a part of the same transaction, the company had executed to said Vore a written agreement providing, in substance, that said Vore might make payments to said company at any time before the note became due, to be applied on said note, and that when Patterson had bought said land said Vore had assigned in writing said written agreement to him, and that on the 16th day of June, 1888, Patterson had paid one Ledrue Guthrie, for the plaintiff, the sum of $400, to apply on said note; that Guthrie was the agent of plaintiff when said payment was made, and authorized and empowered by plaintiff to receive the money on said note, and to receipt therefor, and that Guthrie had executed to Patterson a written receipt for the money at the time payment was made; and alleging, further, that he had not defaulted in the payment of interest on said note, but had always promptly paid the plaintiff all interest as the same became due and payable." To this answer the plaintiff filed a verified reply. The issue between the plaintiff in error and defendants in error John D. and C. F. Patterson was tried to a jury. At the beginning of the trial it was agreed "that the only issue to be submitted to the jury on the trial of said cause is whether the defendants Patterson are entitled to a credit of $400 on the note and mortgage sued on in this action, by reason of having paid said sum of money to one Ledrue Guthrie to apply on said note and mortgage; and that the jury, under proper instructions from the court, may be instructed to find a general verdict for the plaintiff, or for the defendants, as the law and the evidence may warrant; and that, if the verdict was for the plaintiff, the court may determine the amount due said plaintiff under the pleadings and evidence." The jury returned a verdict in favor of the defendants. A motion for a new trial was overruled by the court, and judgment rendered in favor of the defendants Patterson, and against the plaintiff, for costs. The plaintiff below brings the case here for review.

It is contended that the trial court erred in overruling the demurrer of plaintiff in error to the evidence of defendants in error, for the reason that the evidence did not

show that Ledrue Guthrie was the agent of plaintiff in error to accept the payment made by J. D. Patterson. Applying the rule that "upon a demurrer to evidence the court cannot weigh conflicting evidence, but must consider as true every portion of the evidence tending to prove the case of the party resisting the demurrer" (Wolf v. Washer, 32 Kan. 533, 4 Pac. 1036), the ruling of the trial court was correct.

It is further contended that the trial court erred in admitting certain testimony. Incompetent testimony was admitted. The court said: "Mr. Patterson in his testimony stated that Mr. Guthrie told him that he was the agent of the company, and had authority to collect this money, and that he paid Mr. Guthrie supposing that he was the agent of the company. You are instructed that it is not competent for a party to prove that an individual was an agent by the declarations of the supposed agent. The reason for this rule is very plain. If parties were authorized to act upon the declarations of individuals in that way, no man could protect himself against impostors and designing men. If a man could act upon such statements, any man might go to your banker and state that he was your agent to withdraw your deposits from the bank. The bank would pay him, and when you demanded your money the banker would prove that he claimed to be your agent in withdrawing your money, and relieve itself from paying, and you would be defrauded of your money. Therefore you cannot consider the declarations of Mr. Guthrie or the suppositions of Mr. Patterson unless the testimony shows that the plaintiff, the Equitable Mortgage Company, had so acted as to authorize Mr. Guthrie to make the supposition." Under this instruction, the incompetent testimony admitted was not prejudicial to the plaintiff in error.

It is further contended that the trial court erred in overruling the motion for a new trial, for the reason "that all the evidence in the case did not show or prove that Ledrue Guthrie was the agent of plaintiff in error to receive payment of the $400 paid by defendants in error on the principal of the note sued upon." The evidence is too voluminous to be commented upon in this opinion. There is competent testimony which, fairly and reasonably considered, supports the verdict. Our supreme court have said that, "where there is a conflict in the testimony of witnesses, it is the exclusive duty of the jury to weigh and determine what facts such evidence proves, and, when there is any proper evidence which supports the verdict or findings of the jury, such verdict or findings will not be set aside, although the apparent weight of the evidence is against the verdict or findings; but where there is no evidence to support a verdict or a finding, and much more where the verdict or findings are against all the evidence in the case,

they should be set aside." Railway Co. v. Cassity, 44 Kan. 207, 24 Pac. 88. We find nothing in the case that will justify a reversal. The judgment of the district court is affirmed.

BLANTON v. PHELPS & BIGLOW WINDMILL CO. et al.

(Court of Appeals of Kansas, Southern Department, C. D. May 14, 1898.)

APPEAL OBJECTIONS-WAIVER. Questions concerning insufficiency of pleadings and irregularities in some of the proceedings connected with the trial of the case will not be considered by an appellate court where the record shows that such questions were not presented to the trial court.

(Syllabus by the Court.)

Error from district court, Barber county; C. W. Ellis, Judge.

Action by N. B. Blanton against the Phelps & Biglow Windmill Company and another. Verdict and judgment for the windmill company, and plaintiff brings error. Affirmed.

W. W. S. Snoddy, for plaintiff in error. N. B. Carskadon, for defendants in error.

PER CURIAM. This action was brought in the district court of Barber county by N. B. Blanton to perpetually enjoin the collection of a judgment alleged to be void, which had been rendered by a justice of the peace of that county upon two promissory notes in favor of the Phelps & Biglow Windmill Company. That company and the sheriff of Barber county were the parties defendant. The judgment was for $256.32, and the notes had been given for a windmill apparatus in pursuance of the terms of a prior contract under which the machinery had been furnished and set up. The petition alleged that, while a summons had been issued by the justice of the peace, and had been returned as having been served by leaving a copy at Blanton's usual place of residence, he was not, in fact, aware of the pendency of the action until the judgment had been entered, and an execution issued thereon. It is also alleged that Blanton had a complete defense to the action upon the notes, in this: that the consideration therefor had wholly failed, the windmill being utterly worthless. At the commencement of this action the district judge granted a temporary injunction. The defendants' answer contained a general denial only. The trial proceeded before a jury as if the windmill company was plaintiff and Blanton defendant, without objection from either party. The testimony on behalf of plaintiff related to the contract, the setting up of the machinery, and its unsatisfactory character. The defendants introduced evidence tending to prove that the windmill was according to the terms of the contract, and that Blanton, by his conduct, had waived his alleged defense against the

kane county, who has filed a brief in answer to that of the appellants, that inasmuch as the act providing for the committing of juvenile offenders to the state reform school (Laws 1891, p. 195) was passed after the act declaring municipal courts to be courts of record went into effect, and confers jurisdiction to commit juvenile offenders to the reform school upon any court of record, it necessarily follows that the municipal court of Spokane was competent to make the order of which appellants here complain. This argument is based on section 1 of the act, which reads as follows: "When a boy or girl of sane mind between the ages of eight and sixteen years shall, in any court of record in this state, be found guilty of any crime except murder or manslaughter, or who for want of proper paternal care is growing up in mendicancy or vagrancy, or is incorrigible, and complaint thereof is made and properly sustained, the court may, if in its opinion the accused is a proper subject therefor, instead of entering judgment cause an order to be entered that said boy or girl be sent to the state reform school, in pursuance of the provisions of this act, and a copy of said order under the seal of said court shall be sufficient warrant for carrying said boy or girl to the said school, and for his or her commitment to the custody of the superintendent thereof." We think it will appear, from a careful consideration of that section, that it was the intention of the legislature to provide for committing juvenile offenders to the reform school in either of two separate and distinct classes of cases. One is where complaint, is made of incorrigibility, mendicancy, or vagrancy, and is properly sustained; and the other where a boy or girl of the age specified has been tried and found guilty of any crime except murder or manslaughter,-that is, of any other crime included in the category of felonies prescribed in the criminal statutes of the state. For instance, if the accused should be tried and found guilty of burglary, arson, grand larceny, or any other known felony, the judge of the court is vested with discretion either to sentence him or her to the penitentiary or to commit him or her to the reform school. And it is hardly to be supposed that the legislature intended to confer jurisdiction upon municipal courts to try such offenses, especially as jurisdiction of felonies was expressly withheld from such courts, as we have seen, by the act which created them. Such crimes as felonies can only be tried in the superior court and upon indictment or information. Indeed, if the legislature had, by express enactment, conferred jurisdiction of such offenses upon municipal courts, the act would have been unconstitutional and void. Com. v. Horregan, 127 Mass. 450. We think the words, "in any court of record in this state," must mean any court in

which the crimes of murder and manslaughter, as well as other felonies, are triable. The municipal court is not such a one, and we are therefore of the opinion that jurisdiction was not conferred upon it by this section to make the order complained of. Nor did it have jurisdiction to make such an order by virtue of any other section or part of the act, as we will presently see. The judicial power of this state is vested in a supreme court, superior courts, justices of the peace, and such inferior courts as the legislature may provide. Const. art. 4, § 1. Municipal courts, under the constitution, are manifestly inferior courts, for the legislature is empowered by that instrument to provide no other. Section 2 of the act provides that when a boy or girl "between the ages of eight and sixteen years shall be convicted before a justice of the peace or other inferior court of any crime, mendicancy, vagrancy or incorrigibility, it shall be the duty of said magistrate before whom he or she may be convicted to forthwith send such boy or girl, together with all the papers filed in his office upon the subject, under the control of some officer, to a judge of a court of record. He shall then issue an order to the parent or guardian of said boy or girl, or such person as may have him or her in charge, or with whom he or she has last resided, or any one known to be near related to him or her, or if she or he be alone and friendless then to such person as said judge may appoint to act as guardian for the purposes of the cases, requiring him or her to appear at the time and place stated in said order to show cause why said boy or girl should not be committed to the said state reform school for training and reformation." Section 3 provides for the service by the sheriff, or other qualified officer, of the order; and section 4 provides that "at the time and place mentioned in said order, or at the time and place to which it may be adjourned, if the parent or guardian to whom said order may be addressed shall appear, then in his or her presence, or if he or she fail to appear, then in the presence of some competent person whom the said judge shall appoint as guardian for the purposes of the case, it shall be lawful for the said judge to proceed to take the voluntary examination of said boy or girl, and to hear the statements of the party appearing for him or her and such testimony in relation to the case as may be produced, and if upon such examination and hearing the said judge shall be satisfied that the boy or girl is a fit subject for the state reform school, he may commit him or her to said school by warrant." Now, it is evident that the words, "or other inferior court," found in section 2, can refer, so far, at least, as this case is concerned, to no other than the municipal court; and it will be observed that while this court, like a justice of the peace, has jurisdiction under

such a complaint as is here under consideration, in the capacity of a committing magistrate, to send the party charged to a court of record for examination, it has no jurisdiction to make a final order in the premises committing him or her to the reform school. That power is confided solely to the superior judge. For the foregoing reasons we are of the opinion that the judgment of the court below should be reversed, and the appellant Annie Barbee discharged, and it is so ordered.

SCOTT, C. J., and REAVIS, DUNBAR, and GORDON, JJ., concur.

(19 Wash. 270)

STATE. TOMMY et al. (Supreme Court of Washington. April 27, 1898.)

MURDER-INFORMATIONS-OATH TO JURY-CONFESSIONS-SEPARATION OF JURY-MALICE.

1. An information for murder, which alleges that the killing was done purposely and with premeditated malice, is sufficient, under a statute requiring only that the crime be charged so as to enable a person of common understanding to know what was intended thereby, though it does not allege that the particular acts or instrumentalities of the killing were done with premeditated malice.

2. An oath administered to the jury is not objectionable because the jury are sworn to render a verdict "according to the law" and the evidence.

3. Harmless error in giving an instruction is not ground for reversal.

4. In the absence of a statement of facts, the appellate court cannot say the trial court abused its discretion in overruling an affidavit for continuance.

5. Where the state disavows any application to a defendant of a confession by his codefendant, and the jury are explicitly instructed as to what must be found against each defendant to warrant a verdict of guilt, the failure to specifically instruct that the confession should not be considered as against the other defendant was not error.

6. The action of the court in permitting the jury to separate, without the consent of defendant, immediately after they were sworn in, is not error, under 2 Hill's Code, § 359, permitting such separation before submission of the cause.

7. A homicide having been shown, malice will be presumed.

Appeal from superior court, Skagit county; J. P. Houser, Judge.

Johnny Tommy and Charley Moses, Indians, were convicted of manslaughter, and they appeal. Affirmed.

Sinclair & Smith and Chambers & Smith, for appellants. I. E. Shrauger, Pros. Atty. (E. P. Barker, of counsel), for the State.

on or about the 5th day of May, 1897, within one year last past, in the county of Skagit, state of Washington, purposely and of deliberate and premeditated malice, kill one Kelly Annan (an Indian), as follows, to wit: The said Johnny Tommy (an Indian) and Charley Moses (an Indian), did, then and there being, knock the said Kelly Annan (an Indian) down with an ax, then and there being, did cut his throat with a pocket knife, and, then and there being, did tie a weight, viz. a sack of sand, to the body of the said Kelly Annan (an Indian), and throw the said Kelly Annan (an Indian) into the Skagit river, from which said wounds and acts the said Kelly Annan (an Indian) died, in said Skagit county, state of Washington; contrary to the statutes," etc. Upon the trial of the cause the appellants were found guilty of manslaughter, and sentenced to a term in the penitentiary. A demurrer was duly interposed to the information on the grounds: First, that the same does not substantially conform to the requirements of the law; second, that more than one crime ig charged therein; third, that the facts charged therein do not constitute a crime; and, fourth, that the same contains matters which, if true, constitute a defense and a legal bar to this action. The appellants, however, assign for their first error the fact that the court overruled the demurrer to the information because the same does not state facts sufficient to constitute a crime. The substance of the argument is that the indictment, while it alleges that the defendants purposely and of deliberate and premeditated malice killed Kelly Annan, does not allege that the particular acts or in. strumentalities of the killing were done with malice deliberate and premeditated, or that they were unlawfully done. We do not think this contention can be sustained. If the killing was done with malice, it must necessarily follow that the particular acts which constituted the murder must have been done with malice. No good purpose can be subserved by holding to these technical requirements of the common law. This court has held, time and again, that these requirements have been displaced by the liberality and common-sense provisions of our statutes. It is true that the statute requires particularity in the crime charged, but this indictment would not have furnished the defendants with any more particular notice of the real crime that was charged, had it been burdened with the repetition of language which the appellants claim should have been employed. Our statute provides that the indictment or information is sufficient if it can be understood therefrom that the act or omission charged as the crime is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is, intended. Tested by the requirements of the statute, this information is sufficient to convey to the defendants the exact crime with which they are charged, for no one would have the