petent to pursue the cross-examination to the end. In the absence of such showing, or that the plaintiffs were prejudiced thereby, this court cannot say this was an abuse of discretion.

Error is predicated on the giving of instructions. We think the instructions given, so far as they go, fairly state the law, and are confined to the facts in issue.

Another error complained of is the refusal of the court to give the special instructions asked by the plaintiff,-especially the following: "The burden of proof is on the plaintiffs to prove the issues and claims made by them by a preponderance of the evidence; that is, that they are the owners of said cattle, and are entitled to the immediate possession thereof. But by the terms of the contract the defendants are to assume the burden of proof, and prove that all cattle which have died during the time said cattle were in their possession were lost from causes other than from want of proper feeding." We think this instruction states the law correctly, and should have been given. If the instruction had been signed by the parties, as required by section 275, Civ. Code Prac., a refusal to give this would have been reversible error. The instruction was not signed, and this court will presume it was refused for such reason. Morisette v. Howard, 62 Kan. 463, 63 South. 756.

Complaint is also made of the conduct of counsel for defendants, consisting of prejudicial statements made by him to the jury in his argument of the cause. If these statements were prejudicial, and affected materially and substantially the rights of plaintiffs, it would be good cause for a new trial. The statement complained of is: "Gentlemen of the jury, you should return a verdict for McNair, and enable him to pay for the feed he has put into these cattle, and to pay the men employed by him." We are unable to see how this statement affected materially the substantial rights of the parties. It certainly could not have been accepted by the jury as a reason why they should return a verdict for the defendants; and while it was not a proper statement to make, and the court should have withdrawn it from the jury, it is not of that material and substantial character that this court could say it probably influenced the jury to the prejudice of the rights of plaintiffs.

An application was made to set aside the sixth and seventh special findings of the jury for the reason that there was no evidence to sustain such findings. These findings are within the issues joined by the pleadings, and are questions of fact, upon which coutradictory evidence was submitted at the trial. The jury, who heard this evidence, and who was competent to determine the weight and credibility to be given the testimony, found on these questions. Under the rule long established by this court, we may not now enter into an examination of the

testimony to determine upon which preponderates.

The judgment of the court belo firmed. All the justices concurring.

(65

CHANDLER v. RICHARDSON (Supreme Court of Kansas, Divisi June 7, 1902.)

PARTITION-WHO MAY BRING-WII TION BY WIDOW.

1. One out of possession cannot m action for partition of real prope one in possession claiming title to property, unless he first establishe and right of possession to a port property in an action for the recov property, or joins a cause of act recovery of real property with his partition. The reason for rule s ton v. Fyfe (Kan. Sup.) 68 Pac lowed.

2. Where a will is deposited in the probate judge by the testato his death the will is produced in opened. and read in the presence isees of the real property desc one of the witnesses to the will, and an entry is made upon the probate judge of the election of take under the will, and that t mitted to probate, held, the pr under the will, and did not d heirs of the testator.

(Syllabus by the Court.)

Error from district court, L R. F. Thompson, Judge.

Action by A. B. Chandler a Richardson and others. Judgn ants, and plaintiff brings error. Argued before SMITH, ( POLLOCK, JJ.

Geo. D. Abel and David Ri tiff in error. C. B. Daught Weeks, for defendants in erro

POLLOCK, J. In the yea Blount died testate, seised land. By the terms of his w devised to his son, Josiah with the maintenance of his Blount, during her life. S was made, it was by the te the office of the probate ju and the following entries this will were entered up that court: "November 1 of John Blount one will for was received the 12th day at twelve o'clock a. m. Probate Judge.” "Marc above called for by John ered to him this date. Judge." "March 27, 1879 of John Blount one will, v G. M. Wellman, Probate entries were made in Bo following entries were 1 "The seal to the above Blount was broken and read in open court on t

T

vas held was not ought by for the ever, the ction with ement out would not the father d that the ud. Under ay institute 1 is made by or terminate on was pendtlement was e the statute Late, authorize roceeding, and ould constitute the case is of ort of the view cluding the disd, we cite State . E. 711; Com. 427.

istrict court will es concurring.

(65 Kan. 144)

UINT.

s, Division No. 1. *02.)

DENCE-DEFENSES.

been regularly apoffice, entered upon months engaged in luties of such office, lofendant to be such at one charged with sting such officer in cannot justify on the ment and oath of office unty clerk as provided t. 1901.

.)

t court, Ellis county;

onvicted of resisting an Affirmed.

devisee in a will who shall know of the existence thereof, and have the same in his power and control for the term of three years, unless within that time he shall cause the same to be offered for or admitted to probate; and by such neglect the estate devised to such devisee shall descend to the heirs of the testator." We are of the opinion this contention cannot be sustained. While the record made is meager in the extreme, yet sufficient appears therefrom to show the will was not withheld from probate, but was, upon application made to the probate judge, the proper custodian under the law, shortly after the decease of the testator, produced, opened, and read in open court in the presence of one of the attesting witnesses, the devisees of the property, and another; that the widow made her election to take under the will, and a record of its admission to probate was entered upon the will. From these entries, while the same should have been made in a more formal way upon the records of the court, yet it sufficiently appears that the court considered and determined the question of admitting the will to probate, and did admit the will to probate. The order so made is as binding and conclusive as though entered in a more formal manner. In our opinion, the real estate in controversy passed under the will. and did not descend to the heirs of the testator. Allen v. Allen, 28 Kan. 18.

It follows, from what has been said, the plaintiff could not maintain the action brought, and that the judgment of the district court is right upon the merits, and must be affirmed. All the justices concurring.

(65 Kan. 117)

STATE ex rel. BALES v. BAKER, (Supreme Court of Kansas, Division No. 1. June 7, 1902.)

BASTARDY-DISMISSAL OF PROCEEDINGS

EFFECT.

1. The prosecutrix in a bastardy proceeding, although a minor, may at any time before final judgment, and without the consent of the county attorney or other person, dismiss the proceeding, if she shall enter of record an admission that provision for the maintenance of the child has been made to her satisfaction.

2. Such admission and dismissal, if obtained without deception or fraud, is binding upon the prosecutrix and the state, and is an effectual bar to another prosecution for the same cause and purpose.

(Syllabus by the Court.)

Error from district court, Sedgwick county; D. M. Dale, Judge.

Action by the state, on the relation of Nellie Bales, against Albert Baker. Judgment for defendant, and plaintiff brings error. Affirmed.

Argued before DOSTER, C. J., and JOHNSTON, CUNNINGHAM, and ELLIS, JJ.

James F. Conly, Co. Atty., and Amidon & Conly, for plaintiff in error. T. B. Wall, for defendant in error.

JOHNSTON, J. On December 17, 1898, Nellie Bales instituted a bastardy proceeding in the name of the state against Albert Baker before a justice of the peace of Sedgwick county. Baker was arrested and brought before the justice, and upon payment of $80, which was accepted by the prosecutrix, she acknowledged that provision for the maintenance of the bastard child had been made to her satisfaction; and that admission was formally entered upon the docket of the justice, and the prosecution dismissed. After the settlement and discharge, and on July 1, 1899, a second prosecution was begun by the prosecutrix against Baker in the Wichita city court, in which the county attorney participated, and the defendant was recognized to appear at the next term of the district court for trial. In the district court the defendant set up the first proceeding and discharge as a bar to the maintenance of the second. The state, in reply, admitted the institution of the first prosecution, the payment of the money by the defendant, the acknowledgment of the prosecutrix of satisfactory payment, and that her admission had been entered of record in the docket of the justice; but it was alleged that the county attorney did not participate in that prosecution, and did not consent to the discharge of the defendant. It was also alleged that at the time of the discharge the prosecutrix was a minor of the age of 17 years, and that after she became 18 years of age she disaffirmed her action in the first proceeding, and immediately brought the second one. The defendant moved for judgment in his favor on the pleadings, which motion was allowed, and the defendant discharged.

The question presented for determination in this review is whether the first prosecution, the admission by the prosecutrix that satisfactory provision had been made for the maintenance of the child, and the entry of record of the admission, together with the discharge of the defendant, is a bar to further prosecutions. The statute provides that: "The prosecuting witness may at any time before final judgment dismiss such suit, if she shall enter of record an admission that provision for the maintenance of the child has been made to her satisfaction. Such entry shall be a bar to all other prosecutions for the same cause and purpose." Gen. St. 1901, § 3335. It is conceded that, under the provision quoted, the first prosecution, the record admission of the prosecutrix, and the discharge of the defendant constitute an effectual bar to this prosecution, unless the absence of the county attorney and the minority of the prosecutrix save it from the bar. The contention on behalf of the state is that under the general provisions of the statute the contract or release of a minor is not binding if it is disaffirmed after majority is reached, and that the entry of satisfaction by a minor ought

not to bind the state, since neither the county attorney, nor any officer of the state, consented to the steps taken in the first proceeding. It will be observed that the bastardy proceeding is wholly statutory, and in the statute we must find the solution of the questions raised by the state. As has frequently been held, the proceeding authorized by the statute is not strictly civil or criminal, but partakes somewhat of the nature of both. It has a procedure peculiar to itself, and hence the general provisions of the Civil and Criminal Codes do not apply, except so far as they are made applicable by the statute itself. Gen. St. 1901, c. 47. Under the statute no one can originate the proceeding except the mother of the bastard child, and she cannot do so unless she is an unmarried woman. No distinction is made in the statute between adults and minors, nor does it provide that a minor shall be represented by next friend or guardian. While the proceeding is brought in the name of the state on relation of the mother, and the county attorney is required to assist in the prosecution, he cannot institute the proceeding on his own motion; nor is his consent required to a settlement and dismissal of the prosecution by the mother. The statutes of some of the states provide that a settlement and dismissal by the prosecutrix are not effectual without the consent of some public officer. Instead of such a limitation, our statute leaves it wholly to the option of the mother whether a proceeding shall be commenced at all, and she is given the exclusive discretion and power to terminate the prosecution. In view of the interest which the public has in the provision that is made for the support of bastard children, it would seem to be a prudent provision to give some public officer supervisory control of such proceedings, but that is a matter for the legislature, and not for the courts. Whether minor or adult, the mother may begin the proceeding without the consent of any one, and may obtain a judgment without regard to whether she has reached majority or not. The minority of the prosecutrix would not be a good defense to a proceeding brought by her, and, that being true, a judgment rendered in such case that is free from fraud is necessarily binding on the plaintiff. The judgment of dismissal based on an admission of record of the prosecutrix is a judicial proceeding, and can no more be disregarded than a judgment against the defendant making an award for maintenance and education, and fixing the times and terms of payment. The statute expressly provides that any unmarried woman who is the mother of a bastard child may begin the proceeding, and may dismiss it if she shall enter of record that provision for the maintenance of the child has been made to her satisfaction. Such an entry and dismissal made at any time before final judgment is "a

bar to all other prosecutions for the same cause and purpose." No exception is made in the statute of proceedings brought by minors, and the court would not be justified in ingrafting such a provision, or one requiring the consent of the county attorney, upon it. Gleason v. Commissioners, 30 Kan. 492, 1 Pa. 384, 2 Pac. 644. Of course, if the admission and dismissal had been obtained by deception and fraud, it would have no binding force; but here no fraud or overreaching of the prosecutrix is alleged, and, as we have seen, the only ground for ignoring and avoiding the admission and dismissal was the minority of the prosecutrix and the absence of the county attorney. To sustain its contention, the state relies largely on State v. Baker, 89 Iowa, 188, 56 N. W. 425, in which it was held that a settlement made by a minor was not a bar to an action subsequently brought by the state to recover the support for the bastard child. In that case, however, the agreement was not made in connection with the prosecution. It was an agreement out of court by the mother that she would not assert that the defendant was the father of the child, and it was alleged that the agreement was obtained by fraud. Under the statute of Iowa any one may institute the proceeding, but no provision is made by which the mother can control or terminate the prosecution. Since no action was pending when the attempted settlement was made by the mother, and since the statute of Iowa did not, as in this state, authorize the mother to terminate the proceeding, and provide that the dismissal would constitute a bar to other prosecutions, the case is of little authority here. In support of the view that the first prosecution, including the dismissal, is a bar to the second, we cite State v. Carlisle (Ind. Sup.) 52 N. E. 711; Com. v. Weaver, 9 Pa. Dist. R. 427.

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

(65 Kan. 144)

STATE v. QUINT. (Supreme Court of Kansas, Division No. 1. June 7, 1902.)

RESISTING OFFICER-EVIDENCE-DEFENSES. A deputy sheriff had been regularly appointed, taken the oath of office, entered upon and had been for several months engaged in the performance of the duties of such office, and was known to the defendant to be such deputy sheriff. Held, that one charged with the misdemeanor of resisting such officer in the service of process cannot justify on the ground that the appointment and oath of office was not filed with the county clerk as provided by section 1745, Gen. St. 1901. (Syllabus by the Court.)

Appeal from district court, Ellis county; Lee Monroe, Judge.

Peter Quint was convicted of resisting an officer, and appeals. Affirmed.

Argued before DOSTER, C. J., and JOHNSTON, CUNNINGHAM, and ELLIS, JJ.

A. D. Gilkeson, for appellant. A. A. Godard, Atty. Gen., J. P. Shutts, and W. E. Saum, for the State.

CUNNINGHAM, J. This was an action charging the defendant with the misdemeanor of resisting an officer in the service of a writ of attachment. The officer was a deputy sheriff. The defense was that the appointment and oath of office of such deputy was not filed in the office of the county clerk, as provided by section 1745 of the General Statutes of 1901. It is contended that until such appointment and oath is so filed the deputy is no officer, is not authorized to serve process, and may be resisted in such service. In this case the officer acting as such deputy had been regularly appointed, taken his oath of office, and had been acting as such deputy for nearly a year. It was known to the defendant that he was such deputy. We do not think that in a criminal action, such as this, the defendant can raise the question which he does. Probably the requirement of the section cited is merely directory, and in no sense goes to the qualification of the officer; but, however this may be, the deputy sheriff here was an officer de facto, and as such his acts cannot be called in question collaterally. An officer de facto is one who actually performs the duties of the office that appertain thereto under color of appointment or election. To be sure, there must be a fair color of right, or an acquiescence by the public in his official acts so long that he may be presumed to act as an officer by right of election or appointment. In the case at bar either and all of these conditions were amply complied with. It is well settled that the acts of a de facto ministerial officer, such as a sheriff or constable, are protected like the acts of any other de facto officer. They cannot be collaterally inquired into. In 1 Whart. Cr. Law, § 652, the doctrine is stated as follows: "The officer's title is not at issue in such a proceeding [i. e., a prosecution for resisting an officer in the service of process] when it appears that he is an officer de facto; i. e., the recognized official representative of a government in actual power." 1 Bish. New Cr. Law, 464: "It is probably the better doctrine, though the decisions as to it are not harmonious, that the criminal law will not justify a person in resisting an arrest by an officer de facto on the ground that he is not such de jure." The case of Brown v. State (Tex. Cr. App.) 60 S. W. 548, was a prosecution for an assault on an officer engaged in the discharge of his duty. It was therein shown that the officer assaulted had entered on the discharge of his duties as a deputy sheriff under a valid appointment, but he had not taken the oath of office or filed his appointment for record as required by law. The court, however, held that he was a de

facto officer, and as such, while in the discharge of his duties, was entitled to the protection afforded by the criminal statute. In the case of State v. Dierberger, 90 Mo. 369, 2 S. W. 286, a constable, who had not taken the oath of office or filed his certificate of appointment, was prosecuted for a murder committed while attempting to make an arrest. The court there held (pages 373, 374, and 375, 90 Mo., page 287, 2 S. W.): "The only object the law has in requiring the appointment to be filed in the office of the county clerk is to preserve the record evidence of the fact of such appointment having been made. * The failure to file the appointment cannot deprive the defendant of his right to say that he was a deputy constable. * * The appointment made and constituted him a deputy, and, though he failed to take the oath, he was an officer de facto. The principle of law is well settled that the acts of such an officer are as effectual when they concern the public or rights of third persons as though they were officers de jure." See, also, Weatherford v. State, 31 Tex. Cr. R. 530, 21 S. W. 251, 37 Am. St. Rep. 828; 17 Am. & Eng. Enc. Law (1st Ed.) 13, and cases there cited. In this case the deputy sheriff, having been duly appointed, having taken the prescribed oath of office, and entered upon the discharge of the duties of the office, falls within the protection of the law while serving process, although his appointment had not been filed in the office of the county clerk.

The defendant further suggests that his acts, as shown by the evidence, did not amount to resistance of the officer; that he had a perfect right to do what he did. An examination of the evidence convinces us that the acts of the defendant were of such a character as amply to justify the verdict of guilty which the jury returned against him.

Finding no error in the record, the judgment will be affirmed. All the justices concurring.

(65 Kan. 237)

STATE V. WILSON. (Supreme Court of Kansas. June 7, 1902.)

LABOR LAW-MUNICIPALITIES-SCHOOL DISTRICT.

A school district is a "municipality" within the meaning of chapter 114, Laws 1891 (section 3827, Gen. St. 1901), known as the "Eight-Hour Law."

(Syllabus by the Court.)

In banc. Appeal from district court, AIlen county; H. A. Ewing, Judge pro tem.

James Wilson was charged with violation of the eight-hour law. The information was quashed, and the state appeals. Reversed.

A. A. Godard, Atty. Gen., and Jno. F. Goshorn, Co. Atty. (A. H. Campbell, of counsel), for the State. Chris Ritter, for appellee.

SMITH, J. The defendant, James Wilson, was charged with a violation of section