term of the court having jurisdiction of the offense, the prisoner shall be set at liberty by the court unless the delay shall happen on the application of the prisoner. * This is undoubtedly a statutory definition of the constitutional provision which exists in all our state constitutions, as well as in the federal organic law, to wit, that the defendant in a criminal case shall be entitled to a speedy trial. This speedy trial was undoubtedly analogous to the right which obtained to the defendant at the common law, and which was recognized by the judges who held court under the commission of both oyer and terminer and gaol delivery. Under these commissions, it was the custom of the judges to proceed against the prisoners who were in confinement, and, except upon occasion shown, to clear the jail of all offenders two or three times a year. 4 Bl. Comm. c. 19; Hale, P. C. c. 5; U. S. v. Fox, 3 Mont. 512; Harrington v. State, 36 Ala. 236; Bouv. Law Dict. tit. "General Gaol Delivery." Our statute seems to contemplate the same procedure, but gives the right to the defendant to insist upon his discharge, by proper proceedings, if he be not tried within the designated time. With reference to the case of criminals under indictment, the statute has been construed by the supreme court in Re Garvey, 7 Colo. 502, 4 Pac. Rep. 758. The statute has likewise received a very recent consideration and construction by the supreme court on a proceeding instituted by Graves for his release for the failure of the people to try him. The opinion in that case is not on file, having been delivered by Judge Goddard orally; but in it the same general doctrine was adhered to, and the court then cited, with approval, Ochs v. People, 124 III. 399, 16 N. E. Rep. 662. So that we may take it to be true that the act has received a definite and established construction, with reference to cases of prisoners under indictment. This construction undoubtedly is that, if the prisoner be not tried on or before the second term, he is entitled, absolutely, to his discharge. What that term is, these cases in our state, and the one cited from Illinois, clearly settle; and that is that the second term is the second one following the term at which the indictment is found, so that it would appear to be the third term, rather than the second. This, however, is not true. There is great reason for the construction which the court has given to the statute, and it is very clear, from other statutory provisions, that the term of the indictment could not have been intended by the legislature to be counted as the first term, in this estimate of time. Under sections 948, 949 of the General Statutes, the capias which is issued for the arrest of the prisoner is returnable at the next term of the district court thereafter it is issued, and the sheriff is directed to admit the prisoner to bail on a bond conditioned for the appear

This

ance of the indicted person on the first day of the next district court to be holden in that county. Of course, there is a proviso in the statute which permits a capias to be is sued returnable instanter, but this exception is without bearing on the general practice prescribed by these sections. It is thus evident, regardless of the argument ab inconvenienti, which seems to be the principal basis of the Illinois decision, that our statute necessarily excludes the term at which the indictment is found, in the computation of time for the purposes of discharge. construction and this practice do not operate definitely to settle the present contention. In this case the defendant was not indicted at the September term, to which he was recognized to appear, and both that term and the January term elapsed without any steps having been taken to prosecute him by the people. When the indictment was found, at the March term, two full terms had elapsed without proceedings, and it therefore becomes necessary to determine whether this entitles the prisoner to his release. We must so conclude. A very different state of facts is to be considered where a defendant is arrested and examined before a magistrate, who recognizes him to appear at the next term of the district court, and commits him to jail in default of the required bail. There is nothing in the statute which compels the district attorney to indict at the first or any ensuing term. The legislature evidently overlooked the necessity for some statutory requirement in this regard, and left the case to be governed by the discretion of the law officers of the state, as modified by the right conferred by the habeas corpus act. If this latter right is not to be held to control, it will be within the power of the law officers of the people to hold the defendant in jail, subject only to his right to a discharge in case, after indictment, the people should not proceed within the time limited. If, on the other hand, it is holden that this duty of the people to proceed must be exercised within the time prescribed by the habeas corpus act, then it is absolutely indispensable that that time should commence to run at some fixed point, so that this right and privilege may become definite and certain. It seems a reasonable construction to hold that the commitment by the justice is the point to be taken thereafter, from which the terms must be counted during which the people must proceed, or the defendant be entitled to his release. If this be true, then two full terms did elapse after his commitment to jail without bail before the people took action, and, having failed to proceed on or before the second term, the defendant was entitled to his discharge. If this construction do not prevail, and the present indictment was in time, the people need not have tried the defendant at the March term; but the trial could have been postponed until the ensuing

September term, and the defendant be remedless in the premises. He would thus have been in confinement for upwards of a year, which, in the case of an innocent person, would be an inconceivable wrong and gross injustice. To obviate this difficulty, it is no hardship on the people to require them to indict the defendant at the term to which he is recognized to appear, and then give him that speedy trial which he is guarantied by the constitution, and which was his right even at the common law. For these errors the judgment of conviction must be reversed. The judgment will be reversed, the case remanded to the district court, with directions to that court to set aside the judgment of conviction, and its order denying the prisoner's petition for a discharge, and to enter an order discharging him from custody. The case will be reversed for further proceedings in conformity with this opinion.

1. As Code 1887, c. 6, authorizing an aetion aided by attachment on a debt not due in certain cases, permits defendant to traverse the affidavit and provides that, if plaintiff fails to substantiate the cause alleged, the attachment shall be dissolved, and the action dismissed, a judgment for plaintiff on a trial by the court, where the affidavit has been traversed, cannot be sustained unless there is a finding on the facts alleged as ground for the attachment.

2. Where there is in the record no finding by the court of the facts alleged as ground for attachment in an action on a debt not due, and plaintiff's evidence is not such as would justify a finding of the existence of such grounds, the omission of the finding is not cured by presumptions from a judgment entry in his favor.

3. As Acts 1891, p. 248, provide that in actions in a county court in a county of the first class, either party shall be entitled to a jury without advancing the fees therefor, it is not in the power of the court to refuse a jury for failure to advance the fees.

4. Even if the court could by rule require a jury to be asked for before the day set for trial, where the record does not show such a rule, refusal of a jury demanded on that day must be held error.

Error to Arapahoe county court.

Action by Tanquary and Gibson against Charles S. Woods. There was a judgment for plaintiffs, and defendant brings error. Reversed.

John F. Tourtelotte and W. T. Hughes, for plaintiff in error. N. Q. Tanquary, for defendants in error.

BISSELL, P. J. On the 1st of September, 1891, Tanquarý and Gibson commenced this action against Woods, the plaintiff in error, to recover some $1,700. The debt was evidenced by 14 promissory notes, all dated the 29th of December, 1890, and due at varyv.34p.no.8-47

ing periods from 6 to 19 months after date. When the suit was started, only three notes of $100 each had matured, though a fourth, which fell due on the 29th of September, had reached its maturity, except as concerned the days of grace. To obviate the objection of the nonmaturity of the paper, the plaintiffs, as to each unmatured obligation, alleged a fraudulent transfer of property, and fraud in the contraction of the debt. At the time the complaint was filed, the plaintiffs sued out an attachment, and observed the statute by filing an affidavit which set up the fraud charged in the complaint, and stated that the action was brought upon a contract for the direct pay ment of money, and on certain promissory notes. The defendant traversed the attach ment. He also answered, denying the alle gations of the complaint, and set up some affirmative matter which need not be noticed. Without further stating the history of the cause, it is sufficient to say that on the 7th of December, 1891, the case stood on the docket of the county court on the traverse and the issue formed by the pleadings when the court set the case for trial for the 21st of December, 1891. When the case was called in its regular order the defendant demanded a jury to try the attachment issues. This the court denied, on the assigned grounds that a jury had not been asked for prior to the day of trial, and the fees were not advanced to pay for one. The trial pro ceeding, the defendant waived a jury as to the main issue, and the court heard the evidence, and, according to the language of the entry, found "the issues herein joined for said plaintiffs, and assessed their damages in the sum of sixteen hundred dollars, where. fore it is ordered, etc., that plain.

tiffs have and recover of, etc., the sum of etc." This is the only entry in the record, and it contains no finding or judgment concerning the alleged grounds for attachment. The defendant assigns error, and contends the plaintiffs were not entitled to judgment without both proofs and finding as to the alleged ground for complaint.

As a

Manifestly the error is well laid. general proposition, the maturity of the obligation is as essential as the existence of the debt to entitle the plaintiff to bring his suit. This general principle must control the plaintiff's right to recover, unless the case be brought within the scope of that statute which permits a plaintiff to bring suit on an unmatured debt. Chapter 6, Code 1887, is the one which authorizes a writ of attachment to issue, and prescribes the steps which plaintiff must take to secure it. The section which relates to unmatured claims provides that wherever the affidavit states any of the causes save four which authorize the issue of the writ the action may be commenced, and the writ issued upon a debt not due. The judgment entered must be with

rebatement of the interest. A subsequent section permits the defendant to traverse the affidavit, and put in issue the matters alleged, and then enacts that if the plaintiff substantiate any one of the causes alleged the attachment shall be sustained. It also provides that if he fail to substantiate any cause, the attachment shall be dissolved, and the action shall be dismissed if the debt be not due. It likewise directs the trial of the issue by jury, unless that method of trial be waived by the parties. The act of 1891 concerning jurors (Sess. Laws 1891, p. 248) enacts that in any action pending before a county court in a county of the first class either party shall be entitled to a jury without advancing the fees therefor. These statutory requirements easily dispose of this case. The affidavit which was filed to secure the writ has been subjected to some criticism, but the regularity and form of it need not be considered, since it certainly charges that fraud which authorizes a plaintiff to commence a suit on unmatured paper, and all technical defects in affidavits of this sort are the subject of amendment if they are aptly and promptly attacked. The decision is very safely rested on the indisputable basis that there must be a finding, either by a court or by a jury, of the facts alleged as the basis of the attachment, and a formal entry declaring them to exist, in order to entitle the plaintiff to a judgment on his unmatured paper. So far as can be discovered by the record, the traverse of the attachment was never disposed of, and there was at no time during the trial of the case a finding on the issue which it made concerning the existence of the fraud alleged. The matter seems not to have been considered by the court, or, if it was, he made no finding or entry concerning it. Lacking these, a subsequent judgment is evidently not justified. The reason of the omission would seem to be evident from the manifest failure of the plaintiffs to offer evidence which sustained their charge of a fraudulent disposition of the property. The plaintiffs' evidence having been read, it is impossible therefrom to deduce a conclusion which would justify an affirmative finding on this question. Since this is true, this court is unable to disregard the omission, and on the presumptions arising from the entry sustain the judgment. When the court denied the defendant a jury to try the issue made by the traverse he committed an error equally fatal to the recovery. We have adjudged a finding upon this subject indispensable, and, as the statute gives the defendant the right to the determination of a jury on this question, it must be error to refuse it, unless a valid statutory reason can be assigned therefor. We can discover none. It is insisted in argument that it is legitimate for the court to require that a defendant shall advance the fees as a condition precedent to this mode of trial, and that the

court has full power to provide by its rules that the request for a jury shall precede the day fixed for the trial. The first proposition is disposed of by the statute of 1891 and the attachment act in the Code. The first provides that in county courts in counties of the first class either party shall be entitled to a jury without the prepayment of fees; the second enacts that the issue formed by the traverse shall be tried by a jury, unless that mode of trial be waived by the parties. The record discloses not a waiver, but an affirmative demand for a jury. The failure of the court to concede this right to the defendant is necessarily a fatal error, unless it was incumbent upon the defendant to make his demand at some earlier date. We do not decide whether the court could by rule provide the time within which the demand should be made, or otherwise the demanding party be precluded. It is enough in this case to say that the record contains no rule of court, and shows no practice, requiring the defendant to make the demand at an earlier day. We must therefore assume that his request was in due time, and that its refusal was error. Because of these errors committed by the trial court in respect of the entry of judgment and the mode of trial the judgment will be reversed, and remanded for further proceedings in conformity with this opinion.

1. It is not error to permit a witness who is accustomed to seeing trains of cars pass, and who says that he can tell whether they are moving fast or slow by the sound, to testify that a train which he heard distinctly, but did not see, was going pretty fast.

2. Questions of fact are settled in the trial courts. We look no further than is necessary to see that there is competent evidence to sustain the findings, and in this case we find sufficient evidence to support the verdict.

3. When the court, in its general instructions, fairly gives the law applicable to the case, it need not give instructions asked by a party, which merely embody the same principles in different language.

(Syllabus by the Court.)

Error from district court, Coffey county; Charles B. Graves, Judge.

Action for personal injuries by Frederick Hildebrand against the Missouri Pacific Railway Company. Plaintiff had judgment, and defendant brings error. Affirmed.

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

Frederick Hildebrand, who was plaintiff below, while crossing the tracks of the Missouri Pacific Railway Company, on F street, in Leroy, received injuries, for which he brings this suit. F street runs north and

south; the railroad tracks, nearly east and west. The south track is called the "House Track," and runs on the south side of the depot, which is located two blocks west of the crossing and of the water tank and coal chutes. The next track is the main line, distant about 73 feet from the house track. North of the main track are other sidings, which are numbered 1, 2, and 3, respectively; the track nearest the main track being desig nated as "No. 1," and distant therefrom about eight feet. Nos. 1 and 2 are nearer together, and No. 3 is about 19 feet north of number 2. Plaintiff and his little girl, nine years old, crossed these tracks, on their way home, about 6 o'clock in the evening. Plaintiff himself testified that cars were standing on the south track, and that there were cars standing, he thought, on the main track. That, after crossing the south track, he looked both ways. Did not see or hear any train moving. Thought he was safe, and drove on. That, just as soon as he got past the standing cars, he looked west, and saw a train coming about 80 or 100 feet away. His horses were already on the track. He slapped his lines, and "hollered" to his horses to go. They jumped right quick, but the caboose, which was being pushed ahead of the engine, struck the hind end of the wagon. The wagon box was thrown off, bottom side up, on the north side of the north track, and plaintiff thrown out on the ground beyond it. The horses ran away. There was great conflict in the evidence as to the track the engine and caboose which caused the injury were on. The engineer, fireman, and other witnesses testified that they were on the main track, while plaintiff and his little girl testified that they were on one of the side tracks, but they did not seem to be clear whether it was No. 1 or No. 2. The testimony of other witnesses as to the location of pieces of the broken wagon tended to corroborate plaintiff's statement. There was evidence tending to show that the bell of the engine was not rung, nor any other signal given, and the train hands testified that they were going at about eight miles an hour. The jury rendered a verdict in favor of plaintiff for $500, and also answered a large number of special questions.

B. P. Waggoner, David Kelso, and W. A. Johnson, for plaintiff in error. Geo. E. Manchester and J. I. Wolfe, for defendant in

error.

ALLEN, J., (after stating the facts.) The first matter alleged as error is in permitting Otto Hines, who was in the section house a little distance north of the tracks, and who did not see the train at the time, but who heard the rattle and escape of steam from the engine, to testify as to the rate of speed at which it was going, and that it was going pretty fast. He stated that he was accustomed to seeing and hearing trains pass by,

and could tell by the sound. We think there was no error in this ruling.

The jury found that the engine was running "at a rapid speed." The testimony of the engineer, Snyder, that he was not running over eight miles an hour, hardly tends to contradict this finding, for eight miles an hour, in a yard where there are many tracks obscured from view by standing cars, is a somewhat rapid speed.

The principal claim of the plaintiff in error is that the court erred in overruling the demurrer to plaintiff's evidence. We think there was sufficient evidence to challenge the consideration of the jury, and that the demurrer was rightly overruled.

Complaint is also made of the refusal of the court to give certain instructions asked by plaintiff. While some of the instructions asked were correct declarations of the law, the general instructions given by the court were very full and fair, and embodied, in substance, all that the defendant was entitled to, and therefore no error was committed.

It is apparent from the briefs that the defendant's principal grievance is that the jury believed the plaintiff's witnesses, rather * than the defendant's. Of course, it was their duty to determine what was truth, and what falsehood, where witnesses squarely contradicted each other. Their decision has been approved by the trial court, and no power rests with us to reverse their findings, where there is evidence to sustain them. Railway Co. v. Fox, 41 Kan. 715, 21 Pac. Rep. 797; Hodgden v. Larkin, 46 Kan. 454, 26 Pac. Rep. 700. Judgment is affirmed. All the justices concurring.

(52 Kan. 264)

CHICAGO, K. & W. R. CO. v. PONTIUS. (Supreme Court of Kansas. Nov. 11, 1893.) INJURIES TO EMPLOYE-NEGLIGENCE OF COEM

PLOYE.

A bridge carpenter employed by a railroad company in loading timbers on a railroad car for transportation to another point on the company's line may recover damages from the company, under section 93, c. 23, Gen. St. 1889, for injuries sustained while so employed, occasioned by the negligence of a coemploye. Railway Co. v. Harris, 6 Pac. Rep. 571, 33 Kan. 416; Railroad Co. v. Koehler, 15 Pac. Rep. 567, 37 Kan. 463.

(Syllabus by the Court.)

Error from district court, Dickinson county; M. B. Nicholson, Judge.

Action for personal injuries by Clifford R. Pontius against the Chicago, Kansas & Western Railroad Company. Plaintiff had judgment, and defendant brings error. Affirmed.

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

Clifford R. Pontius was employed by the defendant company as a bridge carpenter, and worked in that capacity at various points on the line of defendant's road. A bridge

was constructed across the Verdigris river, in Greenwood county. The false work used for support in its construction was taken down, and the timbers of which it was composed were hoisted and loaded into cars on the bridge, to be transported to some other point on defendant's road. The timbers were muddy and slippery. The mode of hoisting them was to attach a rope or chain to the timbers, and to raise them by means of a pile driver. When a stick was raised to a sufficient height, a rope was thrown around the lower end of it, and a number of men, of whom plaintiff was one, would pull it out on the car. A chain had been used on the end of the rope to hold timbers which were being hoisted, and several pieces had been raised in that way. The chain, however, was thrown aside, and one piece was raised with the rope. When the men undertook to pull it back on the car, the rope slipped off, the timber fell, and caused the injury for which the plaintiff sues. The jury rendered a verdict in favor of the plaintiff for $2,000.

A. A. Hurd and Robert Dunlap, for plaintiff in error. John H. Mahan, for defendant in error.

ALLEN, J., (after stating the facts.) It is contended by counsel for plaintiff in error that section 93, c. 23, of the General Statutes of 1889, has no application to this case. The section reads: "Sec. 93. Every railroad company organized and doing business in this state shall be liable for all damages done to any employe of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers, or other employes, to any person sustaining such damage." It is urged that the plaintiff, being employed as a bridge carpenter, was not engaged in the perilous business of operating a railroad; that the only ground on which the statute can be sustained is that the business of operating railroads is peculiarly perilous, and that the state has the right to impose liability which did not exist at common law, in the exercise of its police power; that the fact that the defendant is a corporation gives the legislature no right to impose on it a liability to which other corporations and private persons are not subjected; that, in so far as its terms include employes not subjected to the pecu'iar hazards attending the operation of a railroad, it is in conflict with the first section of the fourteenth amendment of the constitution of the United States, which reads: "Section 1. All persons born, or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or

property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." It is argued that the plaintiff was a bridge builder; that the legislature has not selected bridge building as a business attended with peculiar hazards; and that a railroad company cannot be subjected to any greater liabilities to its employes who are engaged in building its bridges, than any other company or private individual engaged in the same business would rest under.

It is true that the record discloses that the plaintiff's general employment was as a bridge carpenter, but at the time the accident happened he was engaged, not in building a bridge, but in loading timbers on a car for transportation over the line of defendant's road. In Railway Co. v. Haley, 25 Kan. 35, it was held that "a person employed upon a construction train to carry water for the men working with the train, and to gather up tools, and put them in the caboose or tool car, is within the statute making railroad companies liable to their employes for injuries resulting from the negligence of coemployes." In the case of Railway Co. v. Mackey, 33 Kan. 298, 6 Pac. Rep. 291, the constitutionality of this law was drawn in question, and this court held it valid. The case was taken to the supreme court of the United States, where the judgment of this court was affirmed, and it was held that this statute "does not deprive a railroad company of its property without due process of law, and does not deny to it the equal protection of the laws, and is not in conflict with the fourteenth amendment to the constitution of the United States in either of these respects." Railway Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. Rep. 1161. In Railway Co. v. Beckwith, 129 U. S. 26, 9 Sup. Rep. 207, a provision in the Code of Iowa authorizing the recovery of double the value of stock killed, or damages caused thereto, by a railroad, when the injury took place at a point on the road where the corporation had a right to fence it, and failed to do so, was before the court for its consideration, and was attacked on the same constitutional ground as the statute we have under consideration, but the court held it valid. In Railway Co. v. Harris, 33 Kan. 416, 6 Pac. Rep. 571, it was held that a section man employed by a railway company to repair its roadbed, and to take up old rails out of its track, and put in new ones, who is injured, without his fault, by the negligence of his coemploye, by permitting an iron rail intended to be placed in the track to fall upon him while he is assisting in removing the rail from a push car on the track, is within the terms of section 1, c. 93, Sess. Laws 1874, and entitled to recover for injuries received through the negligence of a coemploye. In Railroad Co. v. Koehler, 37 Kan. 463, 15 Pac. Rep. 567, it appeared that plaintiff's