preme court, the record of which is alleged to contain a copy of the proceedings that was introduced in evidence. When the case was settled, the defendant objected to the attempt to incorporate the records of a cause in another court by a mere reference thereto. The proceedings in question cannot be treated as a part of the record in this case, nor can they be considered in this review. The papers and proceedings to which we are referred, not having been included in this case made, were never served upon the bank, and hence no amendments thereto could have been suggested by it. The papers and proceedings were therefore never settled by the district court as a part of this case made. The original case made in the other cause to which we are referred is a permanent record of the supreme court, and there is no authority to take the same out and place it in the control of the district court. The theory of proceedings in error is that each transcript and case made shall be complete in itself. It has been said that "each proceeding in error is distinct and independent of the other, and the errors assigned in each proceeding are to be determined upon its own record. In determining errors assigned in this proceeding, we must look alone to the matters and things revealed by the present record, and cannot examine or be governed by anything on the files of this court in a former proceeding in error, although it was brought to review a former judgment rendered in this case." Railroad Co. v. Andrews, 34 Kan. 563, 9 Pac. 213. If the practice was allowed of making cases by reference to other records in this court, it would follow that a plaintiff in error might refer to any record or document on file in any of the public offices of the state, and thus the court would be required to gather up and consider, as a part of the case, that which had never been served upon opposing counsel nor settled by the court as a part of a true and correct case made. Such a practice, while it might lessen the trouble and expense of those making a case, would lead to uncertainty and confusion; but as the issues and proceedings of a cause can be easily abridged, and may be so tersely stated in a case made, the argument of convenience and necessity can have little weight. It has been held that the evidence and proceedings in the record of one cause could not be considered in another and different cause in an appellate court, even upon the stipulation of parties that it should be considered in the latter. Lowe v. Riley (Neb.) 60 N. W. 96; Jungeman v. Brewing Co., 38 Mo. App. 458, 463. See, also, Rich v. Starbuck, 45 Ind. 310; Mayberry v. Morse, 39 Me. 105; Elliott, App. Proc. § 197. In the absence of the evidence upon which the decision of the district court rests, we cannot say that its judgment is without support. Judgment affirmed. All the justices concurring. (55 Kan. 113) STATE v. KINDIG. (Supreme Court of Kansas. April 6, 1895.) CRIMINAL LAW-CHANGE OF VENUE-TRIAL ON CERTIFIED RECORD. 1. Where a change of venue of a criminal cause is actually made by a district court to some other county in the same district in which the offense is alleged to have been committed, upon the written application of the defendant that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against him that he cannot have a fair trial therein, such order is not fatally defective because it omits to specify the cause of removal. 2. Where a criminal cause is properly removed for trial from one county to another county in the same judicial district, the district court, having jurisdiction of the cause by such removal, may try the defendant upon a certified transcript of the record and proceedings, and such trial court has authority to require the defendant to plead to a certified transcript of the information, instead of upon the original information. 3. Section 10 of the bill of rights guaranties to the accused in a criminal cause a trial by a jury of the county or district in which the offense is alleged to have been committed. This constitutional right or personal privilege may be waived with the consent of the accused, but this provision of the bill of rights is of the highest importance, and, unless the removal of the cause to a county in a different judicial district is clearly shown by the record to have been made with the consent of the accused, the removal is without any authority of law. 4. The record in this case examined, and held not to show that the accused waived his constitutional right to be tried within the judicial district in which the offense with which he is charged is alleged to have been committed. (Syllabus by the Court.) Appeal from district court, Thomas county; Charles W. Smith, Judge. R. O. Kindig was convicted of receiving a deposit for his bank, knowing the bank to be insolvent, and appeals. Reversed. On the 7th of October, 1893, an information was filed in the district court of Decatur county charging R. O. Kindig, as cashier and manager of the State Bank of Oberlin, with having on the 12th of July, 1893, unlawfully re ceived a deposit of $63.25 for said bank, when he knew the bank at that time was insolvent. At the October term of the court for 1893 of Decatur county the state, with leave of the court, filed an amended information. Thereupon the defendant filed his written application for the court to grant him a change of venue to the district court of some other county in the Seventeenth judicial district, upon the ground "that the minds of the inhabitants of the county of Decatur, the county in which the said case is now pending, are so prejudiced against the defendant that a fair trial cannot be had therein." This application was supported by 25 affidavits. After hearing the application, and being fully advised thereof, the court made the following order: "The venue of said cause is changed to Cheyenne county, in said Seventeenth judicial district, and the trial of said cause is set for the November, 1893, term of said district court, sitting in and for said county and state." The trial of the case was continued from the November term of 1893 to the April term of 1894. At the April term of the district court of Cheyenne county for 1894, and on the 5th day of April, the venue was changed from Cheyenne county to Thomas county, in the Thirty-Fourth judicial district. The record on that point reads: "Counsel for defendant thereupon called the court's attention to paragraph 5238, Gen. St. Kan., and especially to the third clause thereof, viz. that the court had heretofore been counsel for the state in said cause. Thereupon it appearing to, and being within, the knowledge of the judge presiding and the court that theretofore, as county attorney of Decatur county, Kansas, where said cause was originally begun and filed, as such officer, he had verified, filed the information therein, and acted as counsel for the state in the said cause, therefore, and for such reasons, it is ordered, considered, and adjudged by the court that the venue in said cause be changed to the county of Thomas, in the state of Kansas, the same being within the Thirty-Fourth judicial district of the said state. And it is further ordered by the court that the clerk of the district court in and for Cheyenne county, Kansas, forward, forthwith, to the clerk of the district court of Thomas county, Kansas, a true, correct, and complete transcript of all pleadings, complaints, informations, recognizance, and records of said cause. To which order of the court the defendant then and there asked an exception to be entered." At the June term of the court for Thomas county for 1894, when the state attempted to offer evidence, the defendant objected to the introduction of any testimony, upon the ground "that the court had no jurisdiction to hear and try the case, and also upon the ground that the jury were not impaneled from the county or district in which the offense was alleged to have been committed." This objection was overruled. On the 23d day of June, 1894, the jury returned a verdict of guilty against the defendant. Subsequently the defendant filed a motion in arrest of judgment, and also for a new trial. These motions were overruled. The court sentenced the defendant to confinement to the state penitentiary for the period of three years, and also adjudged that he pay the costs of the prosecution. The defendant appeals. Bertram & McElroy and J. R. Hamilton & Son, for appellant. John T. Little, Atty. Gen., and C. Angevine, for the State. HORTON, C. J. (after stating the facts). It is insisted that the district court of Cheyenne county had no jurisdiction of this case on a change of venue from Decatur county, because the order of removal was made prior to any plea to the information, and because the removal did not specify the cause therefor. Section 179 of the Criminal Code reads: "Every order for a removal of any cause, under the foregoing provisions, shall state whether the same is made on the application of the party or on facts within the knowledge | of the court or judge, and shall specify the cause of removal, and designate the county to which the cause is removed." It is claimed upon the part of the state that a plea of not guilty was entered before the application for removal of the cause was granted, but that the plea was unintentionally omitted from the record. This, however, is immaterial. It is held to be better practice to arraign the defendant, and require him to plead to the information before making an order for a change of venue; but where the defendant applies for the change, and has the benefit of arraignment in the county to which the cause is transferred, he has no right to complain that the change was made before his arraignment. Hudley v. State, 36 Ark. 237. See, also, Ex parte Cox, 12 Tex. App. 665. As the removal was actually made upon the application of the defendant, and as he had the benefit of arraignment in Cheyenne county, there was no material error in transferring the case to that county for trial before the plea was entered. State v. Potter, 16 Kan. 80. The better rule is that the statute should be literally complied with, and the ground for a change be fully spread on the record. But it appears in this case that the removal was actually made upon the written application of the defendant, and the showing made by him upon affidavits that he could not have a fair trial in the county where the information was filed. The application of the defendant for a removal of the cause must be read in connection with the order of the court granting the same, and therefrom it appears that the removal was allowed upon the application of the defendant, and for the cause specified therein. 2. It is next insisted that the district court of Cheyenne county committed error in entertaining jurisdiction of the cause after removal, and requiring the defendant to plead to a certified transcript of the information. Not Nothing but a transcript of the record and proceedings is authorized to be transmitted by the district clerk to the county to which the case is removed. State v. Riddle, 20 Kan. 711. SO. 3. It is further insisted that the removal of the cause from Cheyenne county, in the Seventeenth judicial district, to Thomas county, in the Thirty-Fourth district, was without authority of law. By section 10 of the bill of rights, a defendant in a criminal cause is guarantied a trial by a jury of the county or district in which the offense is alleged to have been committed. Undoubtedly the provision securing to the accused a public trial, within the county or district in which the offense is committed, is of the highest importance. It prevents the possibility of sending him for trial to a remote district, at a distance from friends, among strangers, and perhaps parties animated by prejudices of a personal or partisan character. But a defendant may waive his constitutional right or personal privilege by his consent. State v. Potter, supra; In re Holcomb, 21 Kan. 628. Upon the part of the state it is insisted that the removal of the cause from Cheyenne county to Thomas county was made with the consent of the defendant, and that he cannot now complain. But we do not so read the record. The defendant did not make any written or oral application for the removal of the cause to Thomas county or to any different district. After the cause had been removed to Cheyenne county, counsel for the defendant called the court's attention to section 173 of the Criminal Code, and especially to the third subdivision thereof, which provides for transferring a case to a different district, "where the judge is in any wise interested or prejudiced or shall have been counsel in the cause." But when the court made an order removing the case to Thomas county the defendant objected, and had his exception entered of record. Again, when the case was called for trial in Thomas county, the defendant raised the question of the jurisdiction of the court, and objected to that court proceeding with the trial. Under paragraph 1965, Gen. St. 1889, of the act concerning district courts, a judge pro tem. may be selected "when the judge is interested, or has been of counsel in the case or subject matter thereof, or is related to either of the parties, or otherwise disqualified to sit." So, under the statute, a defendant may be tried before a judge pro tem., where the district judge is disqualified by interest or otherwise, or he may, with his consent, have the cause removed to a different district. In this case there was no express consent on the part of the defendant to have the cause removed from his district. The most that can be said is that he consented inferentially to such removal by calling the court's attention to section 173 of the Criminal Code. He did not expressly request that the cause be transferred to a different district under the provisions of that section. On the other hand, he expressly objected to the transfer. If counsel for the defendant misled the court at first in referring to section 173 of the Criminal Code, defendant is not concluded, because he objected to the order to transfer. Before the order of removal was entered of record, the court was fully informed that the defendant did not consent, but positively objected to having his cause sent to a different district. The constitutional guaranty, securing to an accused a trial within the county or district in which the offense is committed, ought not to be annulled upon a mere inference or implication. Therefore, upon the record, we cannot say that the defendant consented to the removal of the cause to a different district, or that he waived his constitutional right to be tried in the district in which the offense is alleged to have been committed. Under the provisions of the constitution and the statute, the removal of the cause from Cheyenne county to Thomas county, against the objection of the defendant, was without authority of law. The cause is pending in Cheyenne county, and all proceedings subsequent to the attempted removal from that county must be ignored. The case may proceed to trial in Cheyenne county, as if no removal had been attempted. The judgment will be reversed, and cause remanded for further proceedings in accordance with the views herein expressed. All the justices concurring. (55 Kan. 124) CITY OF LARNED v. JORDAN. (Supreme Court of Kansas. April 6, 1895.) ELECTION OF REMEDIES-INSOLVENT BANK-TRUST FUND ESTOPPEL. 1. Where a party has an election between two inconsistent remedies, and with knowledge of the important facts affecting his right selects one remedy and establishes his claim, he cannot subsequently abandon such remedy, and adopt another. 2. Where a bank having possession of a trust fund belonging to a city, which it had received on deposit from the city treasurer, makes an assignment of all of its property for the benefit of its creditors, and subsequently the city demands of the city treasurer the payment of the money, which he deposited in the insolvent bank, and when this is refused also makes a demand upon the bondsmen of such treasurer, and thereupon one of the bondsmen presents to the assignee of the bank a demand for the amount of the deposit, and alleges therein "that the bank is justly indebted to this affiant as bondsman for the amount of the deposit upon the following claim, to wit: Upon the deposit account as above stated, in the sum of $4,645.18, which this affiant claims as bondsman of F. J. Mathias, city treasurer aforesaid:" and further alleges: "This certificate of proof being made in behalf of G. Krouch and the other bondsmen of said F. J. Mathias, city treasurer;" and the assignee allows to the bondsman the full amount of the demand presented by him, and thereafter issues to such bondsman a check for the amount of the first dividend made upon the claim, and the bondsman turns this over to the city treasurer, and it is credited upon the account of the defaulting treasurer, held, that the city thereby does not become a general creditor of the insolvent bank, nor is it estopped from pursuing the trust fund in the hands of the assignee of such bank. (Syllabus by the Court.) Error from district court, Pawnee county; S. W. Vandivert, Judge. Action by the city of Larned against M. A. W. Jordan, as assignee. Defendant had judgment, and plaintiff brings error. Reversed. At the general election in April, 1892, F. J. Mathias was elected, and in due time qualified, as the treasurer of the city of Larned. in this state. In April, 1893, he was elected, and in due time qualified and continued to perform the duties of treasurer, until July 1, 1893, when he resigned. While city treasurer he was also cashier and general manager of the Pawnee County Bank, of which bank H. Mathias, his father, was president; G. Krouch, vice president; and G. Hartstein, a stockholder. On March 7, 1893, F. J. Mathias received the sum of $5,121.74 belonging to the city, and of his own motion, without any express authority from the city, but with the knowledge of the officers of the Pawnee County Bank, deposited the same in that bank. The real issue in the election at which Mathias was chosen city treasurer was whether the city funds should remain in the First National Bank or be transferred to the Pawnee County Bank. Upon the election and qualification of Mathias, the money was removed by him from the First National Bank, and immediately deposited in the Pawnee County Bank to the credit of the city of Larned, and continued to be so kept till the failure of that bank. All the city moneys received by him were added to this deposit, and all moneys paid out were paid upon checks drawn by him in the name of the city of Larned. This was done openly, and the city officers knew of it at the time, and particularly the finance committee, which from time to time examined and audited Mathias' accounts. The bank closed its doors on July 1, 1893, and made an assignment. M. A. W. Jordan was appointed assignee of the bank, and was thereafter duly elected and qualified, and has ever since been the qualified and acting assignee. Demand was made on F. J. Mathias, as city treasurer, by the proper authorities, for the city funds in his hands. He was unable to comply with the demand, and it was then ascertained that he had defaulted to the amount of $4,645.18. Plaintiff, as one of the creditors of the bank, was duly notified of the time fixed for the election of a permanent assignee, and was also duly notified of the time and place of allowing claims against the estate. F. J. Mathias, as city treasurer, gave a bond to the city, with G. Krouch, H. Mathias, and G. Hartstein as sureties, and after the assignment G. Krouch, as bondsman, appeared and made proof of a claim against the bank as follows: "State of Kansas, Pawnee County-ss.: Personally appeared before me, the undersigned, a notary public in and for said county and state, G. Krouch, of Larned, Kan., who, being duly sworn, says that he is one of the bondsmen of F. J. Mathias, city treasurer, who deposited the money in his hands in said bank, as city treasurer, to the credit of Larned city; that the city of Larned has demanded the money of this affiant, as city treasurer's bondsman; that the Pawnee County Bank, of Larned, Kansas, is justly indebted to this affiant as bondsman in the sum of four thousand six hundred and forty-five dollars and 18 cents, upon the following claim, to wit: Upon the deposit account, as above stated, in the sum of $4,645.18, which this affiant claims as bondsman of F. J. Mathias, city treasurer aforesaid; this certificate of proof being made in behalf of G. Krouch and the other bondsmen of said F. J. Mathias, city treasurer. All of which is due and payable to himself alone, he having given no indorsements or assignments of the same, or any part thereof; and he further says that he knows of no set-off or other legal or equitable defense to said claim, or any part thereof. Name, G. Krouch. Residence, Larned, Ks. Sworn to and subscribed before me this 6th day of December, A. D. 1893. Witness my hand and notarial seal. [Seal.] George W. Finney, Notary Public." This proof was filed with M. A. W. Jordan, as assignee, and by him allowed as such assignee, on December 6, 1893. On the 13th day of January, 1894, the assignee declared a dividend of 10 per cent. This dividend, upon the claim allowed to G. Krouch, amounting to $464.51, was paid January 15, 1894, by a check of M. A. W. Jordan, as assignee, to G. Krouch, bondsman. This was turned over to T. McCarthy, as city treasurer, who succeeded F. J. Mathias, and it was credited on the account of F. J. Mathias, the defaulting treasurer. On the 23d day of January, 1894, the city of Larned brought an action on the official bond of Mathias, as city treasurer, which suit was subsequently dismissed by it. On August 11, 1894, while the action on the bond was pending, the plaintiff having learned that another dividend was about to be declared by the assignee, and without making any demand upon the assignee to be made a preferred creditor, and without tendering back to the assignee the amount received from G. Krouch, the bondsman of F. J. Mathias, commenced this action, and procured a restraining order to be served upon the assignee, enjoining him from declaring or paying such dividend or any other until the further order of the court. Issues were joined, and the case tried at the September, 1894, term of the court without a jury. Judgment was rendered for the defendant. The plaintiff excepted, and brings the case here. G. P. Cline and Ady, Peters & Nicholson, for plaintiff in error. W. H. Vernon and F. D. Smith, for defendant in error. HORTON, C. J. It is admitted in this case that the money deposited in the Pawnee County Bank was a trust fund, and never belonged to the bank. It is further admitted that the assets of the bank came into the hands of M. A. W. Jordan, as assignee, impressed with the trust. Myers v. Board, 51 Kan. 87, 32 Pac. 658. It seems also to be admitted upon the part of the defendant below that it would have been possible for the plaintiff, at the time the assignee took charge of the assets of the Pawnee County Bank, to have maintained this action to subject all of such assets to the payment of the trust fund; but it is contended that the city had another remedy, which it elected to pursue, and, having made a choice between two inconsistent remedies, it is estopped to claim the other. The contention is that, after the city received notice of the time and place of allowing demands against the estate of F. J. Mathias, the defaulting treasurer, due proof of the account of the city against Mathias was made for the city of Larned; that this was allowed to it as a general creditor; that subsequently the city, as a creditor of the bank, received a dividend of $464.51; that it still retains this money, and cannot now claim the deposit made by F. J. Mathias as a trust fund. If it were true that the city, through its proper officials, had presented to the assignee of the Pawnee County Bank a demand on account of the deposit as a general creditor, and had obtained an allowance of any part thereof, then, having made an election with a knowledge of the important facts affecting its rights, it could not abandon its first election, and adopt the opposite remedy. Plow Co. v. Rodgers, 53 Kan. 743, 37 Pac. 111. But in this case neither the city of Larned, nor its city treasurer, nor any of its officers, presented any demand to the assignee of the bank for allowance. The city demanded the money due from F. J. Mathias of G. Krouch and other bondsmen, and G. Krouch presented to the assignee his demand, alleging "that the bank is justly indebted to this affiant, as bondsman, for the amount of the deposit, upon the following claim, to wit: Upon the deposit account, as above stated, in the sum of $4,645.18, which this affiant claims as bondsman of F. J. Mathias, city treasurer aforesaid"; and further alleging: "This certificate of proof being made in behalf of G. Krouch and the other bondsmen of said F. J. Mathias, city treasurer,-all of which is due and payable to himself alone." Krouch did not attempt in the presentation of his demand to act for the city, or to present any claim or demand in behalf of the city. Νο allowance was made to the city of Larned by the assignee. The assignee allowed the demand of G. Krouch only. Whether this allowance was properly made or not by the assignee we need not now inquire. The city of Larned could not obtain any dividend from the assignee upon the allowance made to Krouch, and, when the dividend was paid by the assignee, the check was not made to the city or to its city treasurer, or to any officer of the city. The assignee, in accordance with the proof of the demand of Krouch, issued to him a check for the 10 per cent. dividend, amounting to $464.51. This was turned over to the city treasurer, and credited upon the account. If Krouch, as a bondsman of F. J. Mathias, had paid $100 or any other sum to the city treasurer to satisfy a part of the indebtedness of F. J. Mathias, it would have been the duty of the city treasurer to have accepted the same and properly credited it. This is all that was done, according to the record as presented. There is nothing in the record showing that the city of Larned considered itself a creditor of the Pawnee County Bank, or ever presented any demand or ratified the proof of any demand made by any other person to the assignee of the bank, as a creditor. Therefore it does not appear from the record that the city of Larned has attempted to pursue two inconsistent remedies. In fact the city has declined to be recognized as a general creditor of the bank. By accepting the check issued to G. Krouch, as bondsman, and applying this upon its account with F. J. Mathias, the city did not adopt the demand of Krouch as an allowance to the city. McLeod v. Evans, 66 Wis. 401, 28 N. W. 173, 214; City of Leavenworth v. Rankin, 2 Kan. 357. The assignee of the bank did not recognize the city as a creditor in allowing the demand of Krouch, and did not recognize the city as a creditor, or entitled to the allowance or to any part of the dividend thereon, when it made its first dividend payable to G. Krouch, bondsman. Unless Krouch pays voluntarily to the city the dividends that he may receive upon his demand, the city, even if it had not enjoined the payment of further dividends, could not obtain any part thereof. Upon the authority of Myers v. Board, 51 Kan. 87, 32 Pac. 658, the judgment will be reversed, and cause remanded for a new trial. All the justices concurring. (55 Kan. 288) FT. SCOTT, W. & W. RY. CO. et al. v. (Supreme Court of Kansas. April 6, 1895.) INJURY TO PASSENGER-CONTRACT OF CARRIAGE. 1. A written contract with a railway company, signed by the shipper of live stock, providing that such shipper, while being carried upon the train transporting his stock, shall remain in the caboose car attached to the train while the same is moving, is valid and binding between the parties thereto. Such a contract is a reasonable one, intended for the safety and convenience of the shipper, as well as for the protection of the railway company carrying him. It does not contravene any law or a sound public policy. 2. The admitted facts and the special findings of the jury examined, and held thereon that S., a shipper of live stock, who had signed a written contract with the railway company to remain in the caboose car attached to the train carrying his stock, while the same was moving, is not entitled to recover for injuries received by him while voluntarily standing or walking upon a moving car, in violation of the terms of his contract. (Syllabus by the Court.) Error from district court, Harvey county; L. Houk, Judge. Action by J. H. Sparks against the Ft. Scott, Wichita & Western Railway Company and the Missouri Pacific Railway Company for personal injuries. Plaintiff had judgment, and defendants bring error. Reversed. On the 13th day of July, 1883, J. H. Sparks commenced his action against the Ft. Scott, Wichita & Western Railway Company and the Missouri Pacific Railway Company to recover $50,000 for personal injuries which he alleged resulted to him from the negligence of the companies. Trial had at the February term of the court for 1890, before the court with a jury. On the 3d day of March, 1890, the jury returned a verdict in favor of the plaintiff and against the defendants for $10,000, and also made special findings of fact in writing. On the 3d of March, 1890, the railway companies filed their motions for judgment in their favor upon the special tindings of the jury notwithstanding the gen |