within that species of injuries contained in the definition of nuisances, as quoted above. From a consideration of findings of fact in this case, and the authorities, we are of the opinion that this is an action for damages for creating a nuisance, and not for the commission of a trespass upon the real property of the respondent. And so holding, we are of the opinion that that part of the judgment of the court below requiring the appellant to pay the costs of suit was error. That part of the judgment taxing the costs to appellant is reversed.

HARWOOD and DE WITT, JJ., concur.

(13 Mont. 190)

LEGGAT v. LEGGAT. (Supreme Court of Montana. May 15, 1893.) FRAUD IN PROCURING DEED-RECONVEYANCE AND ACCOUNTING-EVIDENCE-LIS PENDENS-RECIT

ALS IN DEED.

1. Where the findings of the jury were advisory, and were adopted by the court, and are not attacked on appeal, error, if any, in refusing to sustain a challenge to a juror for cause, is immaterial.

2. In an action to compel the reconveyance of land procured by fraud, many lots having been conveyed by defendant between the date of the deed to him and the commencement of the action, evidence that a lis pendens had been filed by plaintiff was admissible: the notice being material for the purpose of framing the decree, should plaintiff prevail.

3. In an action to compel the reconveyance of land, procured by plaintiff's attorney by fraud, there was no error in admitting evidence that he could have realized more by selling the land in separate lots than by selling it as a whole, it being conceded that he paid an inadequate price for it.

4. In an action to compel the reconveyance of land, procured by fraud, and for an inadequate price, evidence as to the salable value of the land at the time of trial, two years after the conveyance to defendant, is inadmissible.

5. Evidence as to the value of the land several years before the conveyance, and that it had not since depreciated, is, in effect, as to the value of the land at the time of the transaction, and is admissible.

6. In an action to compel the reconveyance of land, procured by fraud, and for an inadequate consideration, and for an accounting by defendant for profits realized from sales of portions of the premises, evidence of the consideration received by defendant for the portions so sold, as recited in deeds by him, is admissible, such recitals being prima facie evidence as to the consideration.

Appeal from district court, Silver Bow county; John J. McHatton, Judge.

Action by Ruth F. Leggat against Roderick D. Leggat. From a judgment for plaintiff, defendant appeals. Affirmed.

The other facts fully appear in the following statement by DE WITT, J.:

This action was brought by plaintiff to compel the reconveyance of real estate from defendant to her, alleged to have been obtained from plaintiff by fraud, also for an account for profits realized by defendant in sales of portions of the premises. The plaintiff alleges in her complaint that she is a resident of the state of Missouri; that prior to March 19, 1888, she was the owner of an undivided one third

of the Leggat & Foster addition to the city of Butte, Silver Bow county, Mont.; that on December 15, 1887, she executed to defendant her power of attorney, constituting defendant her attorney to manage and sell plaintiff's property in Silver Bow county, Mont.; that defendant accepted said trust, and acted as her attorney until her revocation of that power December 27, 1888; that defendant is the brother-in-law of the plaintiff,-brother of her deceased husband,-and that she placed confidence in his friendship, integrity, and honor; that on March 19, 1888, the defendant fraudulently procured from plaintiff a deed of said one third of the Leggat & Foster addition. The complaint sets up in detail the acts which plaintiff claims were fraudulent. Among those acts it is alleged that defendant telegraphed to James G. Butler, of St. Louis, who is a friend of the plaintiff, as follows: "Will Frank [meaning plaintiff] take two thousand dollars for his [meaning her] interest in the Leggat & Foster addition? [Signed] R. D. Leggat." Plaintiff caused an answer to be telegraphed: "Yes, if you advise it; otherwise, no. This was on the 6th and 7th of March, 1888. The consideration is alleged to be grossly inadequate. It is alleged that about this time the de. fendant, being attorney in fact of plaintiff, was offered by another person $3,000 for her said one-third of the property. It is also alleged that just about the same time another one-third was actually sold for $3,000, and that defendant knew this fact, and did not communicate it to plaintiff; also, that defendant knew the value of the property, and concealed the same from plaintiff; that by reason of defendant's false representations and advice, which plaintiff believed and relied upon, and on account of the concealment of facts, plaintiff executed and delivered to defendant a deed of the one-third interest for $2,000. It is further alleged that since defendant received the deed he has received' as his share from the sale of lots the sum of $2,390, and that many more lots remain unsold.

Plaintiff tendered-and made good in court her tender-the original consideration, with interest and the cost of making a deed. She alleges that the one-third value of the lots remaining unsold is five or six thousand dollars. She demands a reconveyance and an accounting. An answer was filed, which denied all the alleged equities of plaintiff. The case was tried by the court, with a jury. No special verdiet was found, but elaborate special findings were made by the jury. In view of the alleged errors which are to be considered in deciding the case, it is unnecessary to recite these findings. It is sufficient to note that the jury fully and completely found facts for the plaintiff sufficient to entitle her to a judgment. Neither the sufficiency of the findings, nor the evidence to support them, is now attacked. The court, upon motion, adopted the findings of the jury, and rendered judgment. A notice of lis pendens had been filed at the commencement of the action. The judg ment of the court protects bona fide purchasers from the defendant during the pe

riod between the giving of the deed by plaintiff to defendant and the filing of the notice of lis pendens. The judgment then requires a reconveyance to plaintiff of the lots remaining unsold. It also takes into account the amount of money tendered by plaintiff to defendant, and renders judgment against defendant for the further sum of $1,400 over and above the amount of the tender; that is, plaintiff was allowed to withdraw her tender, and take judgment for $1,400, the sum of those two amounts being what was found due on the account. The defendant moved for a new trial, which was denied, and from that order, and the judgment, he appeals. There were no specifications that the findings were not supported by the evidence, and counsel for appellant, upon the argument, concedes that no attack is made upon the findings. The appeal is made solely upon alleged errors of law, which are set forth as they are discussed in the opinion below.

Robinson & Stapleton, for appellant. Wm. Scallon, for respondent.

DE WITT, J., (after stating the facts.) The appellant contends that his challenge for cause to juror Heilig should have been sustained. But, if this were error, it is not now material, because the findings were advisory, and were adopted by the court, and are not now attacked.

Appellant claims that it was error to allow the introduction in evidence of the notice of lis pendens filed by plaintiff. The notice was objected to as immaterial and irrelevant. But we are of opinion that, as counsel said when offering the notice, it was material for the purpose of framing the decree if judgment should, as it did, go for plaintiff. There were many lots sold by defendant between the date of the deed by plaintiff to him and the date of the commencement of this action.

The appellant also contends that the court erred in allowing witness Cobban to testify that more could have been realized by selling the lots separately than by selling them all together. But the defendant was the attorney in fact of plaintiff, and was in a fiduciary relation to her. Не was under a duty to do the best he could for plaintiff. The testimony of Cobban simply tended to the effect that the trustee could have done better than he did for his cestui que trust. We are of opinion that there was no error in admitting this testimony. This evidence was pointed at the value of the property. Even if such admission should be considered error, it would not be error upon which the case could be reversed, for it is conceded, by virtue of the findings of facts, which appellant does not attack, that the property was of a greater value than that paid by appellant to respondent, and that the price that he paid was not a fair and just price.

The appellant claims that it was error to exclude the following question asked by him of witness Cobban: "Is it a fact that no money can be borrowed on any of the property in the Leggat & Foster addition, outside of what is in the Belmont; that the banks won't loan a dollar on it,

and men won't loan money on it,-for the reason that the title is in conflict?" This case was tried on the 10th of July, 1891. The defendant received his deed from plaintiff March 19, 1888. Therefore the question before the court was not the salable value of the property at the time of the trial, some two years after the time the defendant obtained the deed of the property. It is observed that the question excluded was as to the value of the property at the time of the trial, and that evidence was properly excluded.

It was also objected that the testimony of J. H. Harper was improper, in that he testined as to the purchase of lots in the Leggat & Foster addition in 1881, and the value of the lots. But the witness also testified that there had been no depreciation in the value since 1881. His testimony was therefore to the effect that the value at the time of the transaction between plaintiff and defendant was at least as great as it was in 1881.

Charles F. Booth, county clerk and recorder, was a witness. He was testifying from the county records as to the deeds made by defendant for lots which he had sold after he had acquired the title, in March, 1888. As the witness testified from the records as to these lots, by their description and dates, he also mentioned the considerations named in the deeds. The defendant objected to the prices of the lots being given, in that the prices mentioned in the deeds were not the measure of damages. It is quite true that the considerations named in the deeds are not at all conclusive. But such consideration was a statement over the signature of defendant, and, we are of opinion, was at least prima facie evidence, with some slight tendency to show what was the consideration. Whatever prima facie tendency there was in this testimony could easily have been rebutted if the facts were otherwise.

Charles S. Warren was a witness. In rebuttal he was testifying in regard to some lots in the addition, which had been sold to Sargeant. It was not objected that this testimony was incompetent, but that it was not proper to be given in rebuttal. But the Sargeant sale had been mentioned by defendant, and we are of opinion that the matter of allowing plaintiff, in rebuttal, to introduce what Warren said as to the value of the premises was a matter of discretion with the lower court, and no injury suggests itself, as resulting from the action of the court.

The foregoing are the alleged errors which appellant has presented for our consideration. We are of opinion that none of these points are well taken, and that the judgment must therefore be affirmed.

PEMBERTON, C. J., and HARWOOD, J., concur.

shall be valid as against the rights of any other person than the parties thereto unless accompanied by delivery, or the mortgage provide that the mortgagor may remain in possession,

and be accompanied by affidavits of the parties thereto, and be acknowledged and recorded, applies to a bill of sale made by a debtor to his creditor, and a contemporaneous agreement that if the debt is paid within a fixed time the bill of sale shall be canceled, and, such formalities not being observed, the transaction is void as to the debtor's assignee for the benefit of creditors.

2. Where the property embraced in such bill of sale consists of barrels of whisky, and they are merely marked by the creditor's agent with a cross and the creditor's name, and moved fr their position in the debtor's warehouse out into the middle of the room, there is no delivery.

Appeal from district court, Silver Bow county; John J. McHatton, Judge.

Action by Nelson Story and another against B. W. Cordell and another. From a judgment or plaintiffs, defendants ap. peal. Reversed.

The other facts fully appear in the following statement by DE WITT, J.:

This action is in replevin for the recovery of certain barrels of whisky. The plaintiffs are creditors of defendant Cordell. Defendant Sutton is the assignee for the benefit of the creditors of said Cordell. The plaintiffs, as creditors of Cordell, about the 21st day of November, 1889, went to him for a settlement of their account. Cordell was a merchant in Walkerville, Silver Bow county. By reason of his indebtedness to the plaintiffs, he turned over to them the barrels of whisky, which are the subject of this action. The facts of this "turning over of the whisky," as the witnesses call it, were as follows: The whisky was in the warehouse of defendant Cordell. When the managing agent of the plaintiffs went to Cordell to collect the account, Cordell gave to the plaintiffs a bill of sale of the whisky. This bill of sale was absolute on its face. But accompanying the bill of sale was an agreement between Cordell and the plaintiffs that if Cordell paid this indebtedness within a period fixed in the agree. ment the bill of sale should be canceled, as the witness expressed it. In any event the agreement was that the bill of sale was a security for the payment of the indebtedness, and if said indebtedness were paid within the time mentioned the sale should be considered as null. Thereupon, the agent of the plaintiffs marked these barrels of whisky with the names of the plaintiffs, and also by cutting a cross upon the barrels. He took the whisky from where it was stored, in the back room of the store, and placed it in the center of the room. It was left in the possession of Cordell in that place, in his warehouse. The only acts tending to show a delivery from Cordell to the plaintiffs were the moving of the barrels of whisky from one place in the store to another, and the marking, as above described. Cordell continued in the possession of the said building, the front room of which appeared to be used as a salesroom, and the back room as a ware. house. Thereafter, and on November 25th, Cordell made a general assignment for the benefit of creditors to Sutton, the other

defendant in this action. That assignment included the whisky above described. All of the assigned property, with this whisky, clusive possession of the same. He refused was delivered to Sutton, and he took exto deliver the whisky to plaintiffs upon their demand. The case was tried to the court below without a jury, and the decision and judgment were in favor of plaintiffs. Defendants moved for a new trial, which was denied, from which order and from the judgment they appeal. The con tention of the appellants, and the point raised upon this appeal, is that the sale from Cordell to the plaintiffs was, in effect, an attempt to create a chattel security, and that as the instrument (bill of sale) was not verified and filed as a chattel mortgage, nor the actual delivery of the chattels made, it was void as to Sutton, the assignee; the respondents contending, on the other hand, that the sale, even if construed as a mortgage, was good as between Cordell and plaintiffs, and that Sutton, assignee, steps into the position of Cordell, assignor, and has no more rights than Cordell, and therefore cannot hold the property as against the sale from Cordell to the plaintiffs.

F. T. McBride, for appellants. W. I. Lippincott, for respondents.

DE WITT, J., (after stating the facts.) We are of opinion that the contentions in this case are determinable under the provisions of our law in reference to personal property securities, (chapter 92, div. 5,

General Laws," Comp. St.) That chapter provides, among other things, as fol lows: "The provisions of the foregoing sections of this chapter shall extend to all such bills of sale, deeds of trust, and other conveyances of goods, chattels, or personal property as shall have the effect of a mortgage or lien upon such property." Section 1549, Id. It is perfectly clear that the bill of sale in this case falls within the purview of this section. The transaction between Cordell, the debtor, and Story & Co., his creditors, in which the bill of sale was given, was intended to "have the effect of a mortgage or lien upon" the whisky. Therefore, this transaction being subject to the provisions of chapter 92, section 1538 is applicable, and that section is as follows: "No mortgage of goods, chattels, or personal property shall be valid, as against the rights and interests of any other person than the parties thereto, unless the possession of such goods, chattels, or personal property be delivered to and retained by the mortgagee, or the mortgage provide that the property may remain in the possession of the mortgagor, and be accompanied by an affidavit of all the parties thereto, or, in case any party is absent, an affidavit of those present, and of the agent or attorney of such absent party, that the same is made in good faith to secure the amount named therein, and without any design to hinder or delay the creditors of the mortgagor, and be acknowledged and filed as hereinafter provided." Applying the law to the facts, we observe that the possession of the personal property was not delivered to and

retained by Story & Co., who were in the relation of mortgagees, as described in section 1538. Nor again, was the instrument-bill of sale-which, by section 1549, is to be treated as a mortgage, accompanied by the affidavit mentioned in section 1538, nor was it acknowledged as therein provided. Applying the further provisions of section 1538, we observe that the transaction was void as against the debts and interests of any other person than the parties thereto. The rights of persons (which rights Sutton represents) other than the parties to that transaction having interfered, that transaction is void as to those rights. The judgment is therefore reversed.

PEMBERTON, C. J., and HARWOOD, J., concur.

(51 Kan. 330)

STATE v. GLAVE.

(Supreme Court of Kansas. May 6, 1893.) RAPE-WAIVING ARRAIGNMENT AND PLEA-COMMENTS ON DEFENDANT'S EVIDENCE.

1. Where the defendant in a criminal case announces himself ready for trial, and goes to trial without formal arraignment or plea having been entered, and at an early stage of the trial, on attention being called by one of the counsel of the state to the fact that the defendant has not been arraigned, he waives formal arraignment, and is afterwards convicted and sentenced, held, that he cannot thereafter complain of a want of formal arraignment and entry of a plea.

2. The testimony of a defendant who has taken the witness stand and given testimony to be considered by the jury may be commented on by counsel in the same manner as the other testimony in the case, and it is not error in such a case to permit counsel for the state to comment on his failure to testify with reference to material matters within his knowledge.

3. The evidence examined, and found ample to sustain the verdict.

(Syllabus by the Court.)

Appeal from district court, Osborne county; Cyrus Heren, Judge.

Otto Glave was convicted of rape, and appeale. Affirmed.

Mitchell & Robertson and J. B. Larimer, for appellant. John T. Little and M. E. Smith, for the State.

ALLEN, J. The defendant, Otto Glave, was convicted of the crime of rape committed on Mary E. Cook, a child under the age of 18 years.

The first error alleged by the appellant is that the defendant was not arraigned, or called on to plead to the information before the trial. The record contains this statement: "The parties announced themselves ready for trial," after having recited that "the defendant was present in person and with his attorneys." After the first witness had been sworn, and had testified with reference to some unimportant matters, the attention of the court and counsel was called to the fact that the defendant had not been formally arraigned, and counsel for the defendant were asked whether they would waive

formal arraignment, to which one of the counsel for the defendant replied, "Yes, I guess we will waive at this time. Thereafter the trial proceeded without objection on the part of the defendant. Under the former decisions of this court, the failure to arraign te defendant, and to require him to plead before the commencement of the trial under the facts above stated, is not such error as will require a reversal of the judgment. State v. Lewis, 10 Kan. 157; State v. Cassady, 12 Kan. 550. In the case of State v. Wilson, 42 Kan. 596, 22 Pac. Rep. 622, cited by counsel for appellant, the record failed to show that the defendant announced himself ready for trial, or consented to go to trial, and, after the jury were sworn, he made a motion to be discharged from custody because of want of service of a copy of the information, and because he bad not been arraigned and required to plead. We do not think the decision in that case in conflict with the earlier cases cited, and the conclusion reached in this.

Various objections were made to the introduction of testimony, and exceptions were preserved to the rulings of the court thereon. Motions were also made to strike out the testimony of certain witnesses. It is unnecessary to comment on them separately. We have examined the record, and find no substantial error in it in regard to these matters. The defendant himself took the witness stand, and testified with reference to his having heard conversations between Lafe Bacon, a witness for the state, and one Hasemeyer, a witness for the defendant. It is contended that material error was committed by the trial court in permitting counsel for the prosecution, in summing up the case to the jury, to comment on the failure of the defendant to testify with reference to the principal matters in issue; and the following language, used by E. F. Robinson, one of the counsel for the prosecution, is mentioned as seriously objectionable: "You know the court, in your hearing, in passing on the evidence, told you from the bench that the defendant might prove acts of lewdness on her part; and they did not do it." "Silence is the strongest proof against him." "No man that can deny it is silent." "He [the defendant] does not even deny it." J. K. Mitchell, of counsel for the defendant, interrupted with the statement, "The defendant denied the charge by bis plea of not guilty." Robinson retorted, "No, he waived it." And M. E. Smith County attorney, in his argument to the jury said, "He don't deny but that he is the father of the child. These remarks were excepted to by the defendant at the time. It is contended by counsel for appellant that the defendant took the witness stand merely for the purpose of making a statement on a preliminary matter in order that the testimony of another witness in his behalf might be received; that by so doing he did not fully assume the attitude of a witness; and it is claimed that his testimony was to the court, and not to the jury. This contention, however, is not correct. The testimony given by the defendant went to the

jury, to be weighed by them with all the other testimony in the case. It was given by him for the purpose of showing that he beard conversations between Bacon and Hasemeyer, and the main purpose for which Hasemeyer was called as a witness was to prove that admissions of the defendant made at that time to Bacon were made under duress, and that $10, given by defendant to Bacon, was extorted from him through fear. While the testimony given by the defendant bore but remotely on the main issue in the case, it still was one of many circumstances to be considered by the jury, and we are unable to perceive any line of demarcation which excludes the defendant from the list of witnesses produced in his behalf. We are not called on in this case to decide the question counsel seeks to raise, viz. whether a defendant in a criminal case, who takes the witness stand merely to make preliminary proof of some fact addressed solely to the court,-for the purpose of permitting the introduction of copies of written instruments, for example, or other evidence requiring preliminary proof before its introduction,would thereby subject himself to all of the disadvantages attending his assumption of the attitude of a witness. This question we need not pass upon until properly presented. In this case the testimony given by the defendant went to the jury, and it was competent for the counsel for the state to comment on it. also comment on matters knowledge, and concerning failed to testify, as well as on the testimony he actually gave. Were we to attempt to lay down a rule limiting the argument of counsel based on testimony given by a defendant to those matters directly connected with the testimony given by him, we should meet with great difficulty in its practical application. The purpose of all testimony on the part of the defendant is to overcome presumptions of guilt raised by the testimony on behalf of the state, and all proper and pertinent discussion must be directed to the question of the guilt or innocence of the accused. Some of the remarks made by counsel for the state appear to us objectionable, yet we think comment on the fact that the defendant had taken the witness stand, and had failed to deny his guilt, was permissible; and the remark with reference to his having waived mak. ing a plea, though not strictly proper, having been made as a retort to an interruption by opposing counsel, we think not likely to bave prejudiced the jury. See State v. Pfefferle, 36 Kan. 90, 12 Pac. Rep. 406; State v. Probasco, 46 Kan. 310, 26 Pac. Rep. 749.

They might within his which be

The testimony of the injured witness is commented on, but we find nothing in the record to convince us that her statements were untrue. The birth of her child is conclusive of the guilt of some person. There was abundant evidence to connect the defendant with the crime, and, the jury having given credit to the witnesses for the prosecution, and their verdict having been sustained by the trial court, we find no grounds in the record for saying

1. Under the general law providing for the incorporation of railroad companies, a circular or terminal railroad may be projected and constructed, and a company organized for that purpose may exercise the power of eminent domain. 2. The statute contains no limitation as to the course or length of a projected railroad. may be long or short, circular or longitudinal, provided it is built for a public use, and within the contemplated purposes of the statute.

It

3. A railroad company organized under the general law, cannot shirk or avoid any duty which it owes to the public; and an allegation or claim that the company at some future time intends to neglect the performance of its full duty to the public is not a ground for forfeiture, nor can the question of whether the company intends, in good faith, to carry out the declared objects of its organization be inquired into in quo warranto proceedings. (Syllabus by the Court.)

Original proceedings in quo warranto, in the name of the state, on the relation of John T. Little, attorney general, against Edward L. Martin and others. Judgment for defendants on demurrer to the petition.

The other facts fully appear in the following statement by JOHNSTON, J.:

This is an original proceeding, in the nature of quo warranto, brought in the name of the state by the attorney general, questioning the right of the Union Terminal Railway Company and the other defendants to use and enjoy the powers, privi · leges, and franchises of a railway corporation, and for an ouster from the exercise of such powers, privileges, and franchises. In his petition the attorney general alleges that: "(1) On December 29, 1891, the defendants, Edward L. Martin, Arthur E. Stilwell, Arthur A. Mosher, and James H. Pickering, of Kansas City, Mo., and Omar D. Hall, William Thompson, and J. Jay Spencer, of Kansas City, Kan., associated themselves together with a view of filing a charter and forming a corporation under the laws of the state of Kansas, and on said day they caused to be filed in the office of the secretary of state of the state of Kansas an instrument intended as a charter, in which they named as directors, for the first year, themselves, and also Edward P. Merwin, of New York city, and William S. Taylor, then of Philadelphia, Pa., but now of Kansas City, Mo., and the name of the proposed corporation was therein stated to be the Union Terminal Railroad Company, with an authorized capital stock of $2,000,000, divided into shares of $100 each, and its declared purpose was as follows, to wit: 'This company is formed to acquire, by purchase or lease, or to construct, maintain, and operate, a standard gauge railroad for the