Volume 10 — Nebraska Reports

<p>Error to the district court of Douglas county. Heard there upon demurrer to the petition before Savage, J.</p> <p>cited The , People v. Postwick, 32 N. Y, 450. Smith v. The Bank, 32 Vt., 341. Illinois G. B.,v. McCullough, 59 111., 170. Souverbye v. Arden, 1 John. Oh., 240. Berry v. Anderson, 22 Ind., 40.</p> <p>cited Tool Company v. Norris, 2 Wall., 53. Marshall v-. B. B. Co., 16 How., 314. Wood v. McCann, 6 Dana (Ky.), 366. Clippings- v. BLepbaugh, 5 Watts & S. (Pa.), 315. Mills v. Mitts, 40 N. Y., 543. Bryan v. Beynolds, 5 Wis.; ‘ 200. Collins v. Merrill, 3 Met. (Ky.), 163. Trustees v. Ilimes, 5 Pa. St., 452. Crawford v. Wick, 18 Ohio St., 190. Mayne v. Griswold, 3 Sanf., 463. Field v. Wilson, 6 B. Mon., 479. Badger v. Badger, 2 Wall., 87. District Township v. Boomer, 40 Iowa, 601. Humphrey v. Mattoon, 43 Iowa, 556. Bigelow on Fraud, 455. Lott v. De Graffenried, 10 Rich Eq., 346.</p>

<p>Pleading: evidence : burden of proof. M. brought an action in the district court upon a promissory note made by K., who answered, alleging that he had sold certain real estate to M., the price of which was to be applied on said note. M., in his reply, admitted the purchase of the real estate for the sum stated in the answer, but alleged that he had paid the purchase money to certain parties at the request of K. Held, that the burden of proving said payment devolved on M.</p>

A judgment, regular upon its face, is conclusive against the defendant, and the homestead right cannot be tried on motion to set aside sale. Rector v. Rotton, 3 Neb., 171. Cook v. King, 8 Cal., 347. Slaughter v. Detiney, 15 Indiana, 49. State v. Melengue, 9 Ind., 715. Perkins v. Bragg, 29 Ind., 507. Savings Bank v. Wheeler, 20 Kansas, 630. The homestead claimed must “ be owned and occupied ” by the defendant. State Bank v. Carson, 4 Neb., 478. Baton v. Ryan, 5 Neb., 47.

<p>Original application for an alternative writ of mandamus.</p>

<p>Motion to re-instate appeal.</p>

<p>Mandamus: petition. The petition for mandamus must state all the essential facts necessary to entitle the party to the relief sought. And where the payment of money by a public officer is the object in view, it must distinctly appear that there is a fund from which the desired payment can legally be made.</p> <p>NOTE. — The application must show a prior demand and refusal,. and set forth facts which clearly impose on the respondent a duty which the law enjoins upon him as resulting from an office, trust, or station. Kemmerer v. State, 7 Neb., 133. On the hearing for a peremptory writ omissions in the alternative cannot be supplied by a reference to the affidavit or application on which it was allowed. State, ex rel. v. School District, 8 Neb., 93. Where the relief sought is to compel the payment of bonds issued to aid the construction of works of internal improvement, there should, be.in the application a particular description of such works. The State v. Thorne, 9 Neb., 459. — Rep.</p>

This was an original application for a mandamus to compel the county commissioners of Dodge county to meet and levy a tax upon all the property of Eremont precinct in said county sufficient to pay a judgment recovered by the relator in the United States circuit court for the district of Nebraska at the May term, 1879, and to place such levy upon the tax roll for 1879. cited Dillon on Mun. Corp., sec. 687-690. High on Extraordinary Legal Remedies, sees. 380, 395, 396.

<p>1. Taxes: sale of lands for taxes at private sale. The relator alleges that on the twentieth day of November, 1879, ho tendered to the county treasurer the taxes, penalty, interest, and costs due on lots * * *, and demanded a tax certificate for said lots at private sale, which was refused. Held, that the county treasurer had no right or power to sell real estate for taxes at private sale until after his report of sales of real estate at public sale is made and filed in the office of the county cleric, and that a tender and demand to purchase land or lots for taxes at private sale, made before such report is made and filed, gives no right to the writ of mandamus to compel such sale.</p> <p>2. -: -. Real estate can only be sold for taxes to those who offer to pay and do pay the amount of all taxes, penalty, interest, and costs due on any parcel of land or town lot, or the smallest portion of the same.</p> <p>3. Mandamus. Even an alternative writ of mandamus will only issue out of this court when the relator shows himself clearly entitled to the relief demanded.</p>

<p>1. Powers of County Commissioners: drawing warrants. County commissioners have no authority to draw warrants after fifty per cent of the amount levied for the year is exhausted, unless there is money in the treasury to the credit of the particular fund for the payment of the same. If they do so they are personally liable thereon.</p> <p>2. -: -, C. and YV. applied for a mandamus to compel the board of county commissioners of C. county to draw a warrant in their favor on the general fund of said county. It was admitted that fifty per cent of the levy of 1879 was exhausted, and that there were registered warrants outstanding against said fund in said county for at least double the amount of money in the general fund in the treasury. Held, that warrants must be paid in the order of their entry upon the record, and that no warrant can be drawn on the treasury in excess of the fifty per cent unless there are funds therein available for the payment of that particular warrant.</p>

<p>Original application for mandamus.</p>

This was an action of ejectment brought by Haller against Blaco in the district court of Washington county. The plaintiff relied on a treasurer’s tax deed ■executed under the provisions of the revenue law of 1869 [Gen. Stat., 918, 923], to support his claim of title to the land in dispute. This was excluded under objection by the defendant, and judgment entered in his favor before Savage, J. cited McReady v. Sexton, 29 Iowa, 856. Turner v. Yeoman, 14 Ohio, 217.

Tried below before Pound, J. The opinion states the case. contended that mesne process alone is dissolved by bankruptcy. Myers v. Mott, 29 Cal., 359. That the lien of the attachment becomes merged in the judgment. Drake on Attachments, sec. 224, a. Bagley v. Ward, 37 Cal., 121. Gen. Stat., 560, 562.

Original application for mandamus. Statutory proceedings to try the right of property are not appealable, and if they were, MeClung could neither appeal nor prosecute a petition in error, because he was not a party to the' record. He had no other adequate remedy, and therefore mandamus will lie. Nash, 729. 2 Penn. Rep., 1024. 2 N. J. Rep., 225. 2 John. Rep., 371. People v. Justices of Chenango, 1 Johnson’s Oases, 179; and 2 Caine’s Cases in Error, 319.

Tried below before Post, J. The official return of officers who so neglect and violate their oaths of office should not be received in evidence, but other evidence should have been produced on behalf of the party claiming under such terms. Either the ballots should have been produced or the electors themselves summoned. See McCrary’s Law of Elections, 228 and 229, and cases there cited. Littlefield v. Green, 1 Chicago Legal News, 230. Brightley’s Election Cases, 493.

<p>Error to the district court of Nemaha county. Tried below before Pound, J. There is a sufficient statement of the case in the opinion.</p> <p>cited Emery v. Pease, 20 N. J., 64. Stewart v. Carter, 4 Neb., 564. Jones v. Steamboat Cortes, 17 Cal., 497. Pomeroy on Remedies, see. 453, 57-60. Conaughty v. Nichols, 42 N. Y., 83. Wright v. Hooker, 10 N. Y., 51. Bliss on Code Pleading, sec. 120.</p> <p>cited Gren. Stat., 539, sec. 92. Bliss on Code pleading, secs. 119, 423. Nash PI. & Pr., 52. Fox v. JR. JR. Go., 2 Handy, 170. Pom. on Rem., 627, § 576. Sturges r. Burton, 8 O. St., 215. Ferguson v. Gilbert, 16 0. St., 88. Muzzy v. Bed-lie, 13 "Wis., 445. Ford v. Mattice, 14 JIow. Pr., 91. Churchill v. Churchill, 9 How. Pr., 552. Dunning v. Thomas, 11 How. Pr., 281. Lackey v. Vanderbilt, 10 How. Pr., 155. Swan’s PI. &Pr., 213.</p>

<p>1. Election; canvassers: their duties : mandamus. The alternative writ contained the following charge: “That the votes polled in the several precincts were returned to you by the judges thereof, and that you, as clerk of said county, calling- to your aid two electors of said county, protended to canvass and count the votes cast at the said election, * * * and with the fraudulent purpose of declaring that the said proposition had been carried by the votes of the electors of the said county, and without any legal cause whatever, you rejected the vote of Paddock precinct, and neglected and refused .to count the same. * * *” In his answer the respondent, the county clerk, set up a copy of the record of said canvass, in which he says: “And we further certify that there was no legal returns of votes from the precinct of Paddock, in said county, for the reason that there is no evidence that all the judges and clerks of said election in Paddock precinct were qualified, as provided by law, and for the reason that it appears that one Thomas W. Wing was not qualified to sit as a judge at said election in said precinct, and for reasons not herein enumerated.” Held, That the said canvassers had no power to inquire into the qualifications of the judges or clerks of the election, nor to reject or throw out returns actually received from any precinct for any cause whatever. And that the said clerk would be compelled by mandamus to complete the said canvass. Held, also, that if sections 64 and following of an act entitled “ An act to provide a general election law, the procedure relative to contested elections and the filling of vacancies in office,” approved March 1, 1879 (Laws, p. 240), be held to apply to cases of this character, and be further held to be a complete remedy at law, that said provisions could only apply to a case where the relator has an opportunity to avail himself of the benefit of the said act, with all of its privileges as to time.</p>

<p>Error to tbe district court for Lancaster county. Tried below before Pound, J. The opinion states the case.</p> <p>cited Potters Dwarris on Statutes, 224. Morrill v. Taylor, 6 Neb., 236. Z7. S. v. Case of Hair Pencils, 1 Paine, 406. Marsh v. Supervisors, 42 Wis., 502. Sumner v. Sherman, 13 Vermont, 612.</p>

Heard there before Pound, J., upon objection to confirmation of sale of defendant’s real estate. Objections overruled and exceptions taken.

<p>1. Practice in Criminal Cases: preliminary examination. ’Where a person accused, of an offense is arrested and taken before a magistrate for examination, and is discharged, such discharge does not. bar another examination for the same offense, before the same or another magistrate, upon a new complaint being filed. An examination is not a trial.</p> <p>2. -: change or venue. ¡The act providing for a change of venue in civil and criminal proceedings before justices of the peace, approved March 25, 1871 [Gen. Stat., 718], applies to all proceedings, whether civil or criminal, before justices of the peace. And the affiant, in his affidavit for a change of venue, may also state any objections that be may know to exist against the nearest justice to whom the cause could be transferred, and if he fail to do so such objections will be waived. But one change can be made for the same cause in the same proceeding.</p>

Tried below before Pound, J. in support of the point that a married woman who signs a note is presumed from that fact to intend to charge her separate estate with its payment, cited: Webb v. Hoselton, 4 Neb., 308. Glaflin v. Van Wagoner, 32 Mo., 252. Sehafroth v. Ambs, 46 Mo., 114. Whitesides v. Cannon, 23 Mo., 457. Bank v. Taylor, 62 Mo., 338. Burnley v. Thomas, 63 Mo., 390. Beering v. Boyle, 8 Kan., 525. Wicks v. Mitchell, 9 Kan., 80. Miner v. Pearson, 16 Kan., 27.

<p>Interest: Partnership. In the spring of 1874 0. was the owner of a livery stable and stock on 9th street, Omaha. He also bought a lot on 15th and Parnham streets for the purpose of erecting a new stable thereon; had paid $5,000 on such purchase, and given a mortgage on the said lot for $7,000, the balance of the purchase money. On the first of May of said year he entered into partnership with W. The livery, stock, and interest of O. in the lot on 15th and Parnham streets were estimated at $19,000. "W. was to put in an equal amount. He, ~W., was to go on and put up a new building for their business on the said lot, furnishing the means therefor ; and if the cost thereof should fall short of the amount put in by O., then the amount was to be made' up in some other way. W. completed the erection of the building in September of that year, at a cost of $13,755.99. The amounts severally drawn out of the business by the plaintiff and by the defendant in each of the four and a half years of the partnership were nearly equal; but during such time the defendant from time to time paid in money to the partnership in excess of that paid in during the same time by the plaintiff; so that at the time of the dissolution the deficiency of defendant amounted only to $594.42. Ho demand was ever made on defendant by plaintiff that he make good his deficiency, nor did the business of the firm require the same. Held, that the plaintiff was not entitled to interest on such deficiency or any part thereof.</p>

The action was brought there to set aside and perpetually enjoin the collection of a special tax levied upon real estate of plaintiffs, by the city council of the city of Omaha, to defray the expense of bringing a part of Earnham street to the established grade.

<p>Criminal Law: avrit or error: einal judgment. G-. and B. were indicted for murder, and on the trial of the cause the jury, after remaining out several hours, returned into court with a written statement that they had agreed to disagree. The court apparently becoming satisfied that they could not agree discharged them in the absence of the accused and without their consent. The accused then moved for their discharge, which motion was overruled. Held, That the ruling of the court upon the motion was not such an order as can be reviewed on error before final judgment.</p>

<p>1. Practice in Criminal Cases: verdict. On the trial of one L. for felony, after the cause had been submitted to the jury, and'while they were considering their verdict, the court adjourned until the following morning. After the adjournment, the jury, having agreed upon a verdict, wore conducted into the court room and delivered their verdict of guilty upon one count in the indictment, and wore discharged by the judge. Held, a privy verdict and of no force and effect, not having been affirmed in open court.</p> <p>2. -: -: aeeidavit OE attorney. On the hearing of a motion for a new trial one of the attorneys for the accused made an affidavit that the verdict was received by the judge during an adjournment of the court, which was not denied. The contents of the affidavit were stated to the court, and the affidavit itself handed to the district attorney for examination, but it was not filed until after the hearing. Held, the objection, if any, must be made to its introduction as evidence ; and if not so made is waived.</p>

<p>Mortgage Foreclosure: ducks*: jurisdiction. One F., in 1869, executed á mortgage upon certain real estate to one M., and in the year 1871 conveyed a portion of such real estate to one E. F., who in 1874 conveyed the same to L. F., and in that year F. conveyed other portions of the mortgaged premises to D. F. In 1875 an action of foreclosure was commenced and F. and wife and L. F. were made defendants. Service was had upon F. and wife by publication, but no service was had upon L. F., who was a non-resident of the state. Default was taken against the defendants, and a decree of foreclosure and sale, the decree stating that “the defendants having been duly served with notice and brought into court herein.” Held, That D. F. was not concluded by the recital in the decree as to notice from showing want of jurisdiction.</p>

contended that the petition did not state facts sufficient to constitute a cause of action; that the plaintiff must be the debtor, a resident of the state and the head of a family, and at the time of the levy actually engaged in the business of agriculture; that the petition must show that the debt, to satisfy which the property in question was levied on, was not for clerks’, laborers’, or mechanics’ wages, etc.; that in order to claim and derive the benefit of the exemption…

<p>Mortgage Foreclosure: payment op taxes by mortgagee. D. and ~W., holding a mortgage against S., paid certain faxes due on the mortgaged property, and in a petition to foreclose the mortgage alleged that they paid the same to protect the security, and asked to have such taxes added to the mortgage debt. The defendant answered the petition without denying that the payment was to protect the security, alleged certain irregularities in the proceedings and assessment, which, if true, would have rendered a tax deed void; but did not allege that the lands were not subject to taxation, nor that the tax, if lawfully assessed, would not be a valid charge on the land, nor any ground for equitable relief. Held, on demurrer, the answer constituted no defense.</p> <p>Note. — See Peet v. O’Brien', 5 Neb., 361. Wood v. Helmer, ante page 65, and note. — Rep.</p>

<p>Appeal from Cuming county, Barnes, J.</p>

Owen W\ Cotton brought an action in the district court of Lancaster county against E. Mary Gregory, John S. Gregory, and others, alleging in his petition that in January, 1875, he owned certain lots in the city of Lincoln, and on the twentieth of February following, he and his wife executed their certain “ serowl” or writing, and delivered the same to McMurtry & Gregory to be the deed of Cotton and wife, and to be thereafter delivered to E. Mary Gregory, the grantee in said…

This is a petition in error brought to reverse an order of the district court for Washington county, made November 26, 1879, in an action brought to foreclose a mortgage made by John H. Green, in which the State Bank of Nebraska was plaintiff and John H. Green and John I. Redick were defendants.

<p>Appeal from Johnson county. Tried below before Weaver, J.</p> <p>cited Gen. Stat., 392, sec. 6. Brown on Frauds, secs. 437, 448. Fry on Spec. Perf., sec. 378. Blanchard v. McDougall, 6 Wis., 166, 168. . Fisher v. Moolick, 13 Wis., 321, 324. Burtch v. Hogge, Har. Gh. (Mich.), 31. Bomier v. Caldwell, 8 Mich'., 463, 475. Morgan v. Bergen, S Neb., 213.</p> <p>cited Poland v. O’Connor, 1 Neb., 50. Char pot v. Sigerson, 25 Mo., 63. Weed v. Terry, 2 Douglass (Mich.), 344. Wilson v. Wilson, 6 Mich., 9. Story’s Equity, sec. 764. Tier-man v. Gibney, 24 Wis., 190. Knoll v. Harvey, 19 Wis., 99. D’Wolf v. Pratt, 42 111., 198. Hartwell v. . Black, 48 HI., 301. Deniston v. Hoagland, 67 HI., 265. Cooper v. Carlisle, 17 N. J. Eq., 525. Smith v. Crandall, 20 Md., 482. Wallace v. Brown, 10 N. J. Eq., 308.</p>

<p>Evidence. In the case made, Held, that the evidence is not sufficient to sustain a decree of divorce on either cause of action stated in the petition.</p>

Action to recover damages for breach of the covenants of warranty in a deed.

Tried below before Post, J. cited Const, art. 9, sec: 1, 6, People v. Hibernia Bank, 51 Cal., 243, in support of the proposition that debts due are not property, and therefore are not taxable; and further argued that the purchase of the bonds was in the ordinary course of business, and not to evade taxation, referring to the evidence, particularly to the ledger, showing purchases of bonds other than those in question, in 1873 and 1876. cited Smith v. The State, 43 Ala., 344.

<p>Conversion: pleading. One Z. brought an action against 0. for the conversion of certain goods. 0. answered that he took the goods under certain writs of attachment, and that the same had been sold under an order of the court to satisfy a judgment in an action in favor of C. and L., and against the St. J. F. Oo. The plaintiff replied that the St. J. F. Oo. had no corporate existence. Held, on demurrer, that whether such company had a corporate existence or not, it could not avail the plaintiff, as he must recover, if at all, upon his right to the goods in question.</p> <p>Note. — Although a corporation may be so defective as to render its franchise wholly invalid in a proceeding against it.by the state, still its corporate existence, when acting under color of its franchise, cannot bo questioned in a collateral proceeding. Lincoln B. §■ S. Ass’n v. Graham, 7 Neb., 177. Abbot v. Omaha Smelting Co., 4 Neb., 420. A general denial in an answer to a suit brought by a corporation does not put in issue the corporate character 'of such corporation or its power to bring the suit. National Life Ins. Co. v. Robinson, 8 Neb., 455, 456. — Rep.</p>

Tried below before Weaver, J. A court of equity will restrain the collection of a tax which is illegal and void, if the tax deed provided by law, to be given in case of sale for such tax, is made by statute prima facie evidence of the regularity of all the proceeding, from the valuation of the land by the assessor up to the execution of the deed inclusive. High on Injunctions, 206, 207, sec. 368. Cooley on Taxation, 543. Blackwell on Tax Titles, 483, 485.

<p>1. Evidence: book account. One O., a blacksmith, was in the habit of keeping his accounts for blacksmithing in small books (pass books, apparently), and when a book was filled, carrying the unsettled accounts forward into a now book, the old one being destroyed. Held, in an action on an account thus kept, that he could refresh his memory from these secondary books, and his testimony that the several items of account were correct as charged, although he could not remember the dates of the several items without referring to the account, was properly received.</p> <p>2. Tender. A plea of tender and payment of a specified sum into court is an admission that the sum tendered is due the plaintiff. It differs in that regard from an offer to permit judgment to be taken for a specified sum, as provided by section 1004 of the code.</p>

This was a re-hearing of the case reported in 8 Neb., 457, to which reference may be made for any further statement beyond that contained in the following opinion. cited Mattis v. Robinson, 1 Neb., 1. United States v. Duncan, 4 McLean, 607. cited Weichselbaum v. Curlett, 20 Kan., 709. Bettisin v. Budd, 17 Ark., 546. Jackson v. Rowland, 6 Wend., 666. Ferguson v. Ftter, 21 Ark., 160. Taylor’s Land and Ten., see. 705.

<p>Error to the district court for Hall county. Tried below before Post, J.</p> <p>cited den. Stat., secs. 10, 34, 39, chapter 13. Dillon Mun. Corp,, sec. 373, note 1; sec. 388, note 1. Follmer v. Nuckolls County, 6 Neb., 204. Ohio v. Yeatman, 22 Ohio State, 546. Bradford v. The State, 7 Neb., 109. S. C. P. B. B. v. Washington Co., 3 Neb., 42. The People v. Commissioners, 4 Neb., 157.</p> <p>Corporations will not be permitted to avail themselves of the plea of ultra vires to defeat an action on an executed contract, i. e., one on which the other party has fully relied in expending his money and performing labor, and this wholesome rule is applicable alike to private and municipal or public corporations. Nor do we understand that there is any conflict of authority on this point. We are aware that there are cases which may at a glance seem to conflict with the foregoing, but a careful reading will show the mistake. Dillon on Mun. Corp., sec. 388. Clark v. Dayton, 6 Nebraska, 192. Follmer v. Nuckolls County, Id., 204. San Francisco Cas Co. v. San Francisco, 9 Cal., 453. Argenti v. San Francisco, 16 Cal., 255. Pixley v. B. B. Co., 33 Cal., 183. Fisher v. Trustees of School Dish, 15 Barb., 323. State Board of Agriculture v. B B., 47 Ind., 407. Kneeland v. (filman, 24 Wis., 39. Duncombe v. City of Fort Dodge, 38 Iowa, 281. City of Memphis v. Brown, American Law Register, N. S. Yol. II., 629. Cincinnati v. Cameron, 33 Ohio State, 362. Field on Corporations, sections 262-269. Moore v. Mayor, 73 N. Y., 238. dreen’s Brice’s Ultra Yires, notes to pages 373-5. Bigelow v. Perth Amboy, 1 Dutcher, 297. McPherson v. Foster, 43 Iowa, 64. Miner’s Ditch Co. v. Zellerbach, 37 Cal., 578.</p>

It was an action for the foreclosure of a mortgage on a petition filed in the district court by the appellant April 1, 1879. The mortgage debt is evidenced by a promissory note for $1,000, dated July 1, 1876, payable in five years after date, and bearing interest from date at 10 per cent, interest payable annually.

<p>1. Judgment: presumption in payor op. It is a settled rule of law that every presumption is in favor of the correctness of a judgment of a court of general jurisdiction until the contrax-y is made affirmatively to appear.</p> <p>2. -: -. ' Where nothing whatever is shown, if evidence were necessary to have authorized the particular decision complained of, it will he presumed that the evidence was before the court.</p> <p>3. Bill of Exceptions. If a party rely upon the fact that there was no evidence in a case where evidence was necessary, he must establish it by a proper bill of exceptions.</p>

<p>Error to tbe district court of Richardson county. Tried below before Weaver, J.</p>

Heard below before Pound, J. Sweet in 1871 recovered a judgment against Wright. No execution was ever issued. In 1879 Sweet commenced proceedings to revive. In answer to the petition for revivor defendant Wright set up payment on the note, for which no credit was given, and facts which, he claimed entitled him to equitable relief against the judgment, also plead nul tiel record.

<p>Error to the district court of Cuming county. Tried below before Barnes, J.</p>

<p>Original application for mandamus.</p>

<p>Appeal from Cass county. . Tried below before Pound, J.</p>

Original application for a mandamus to compel the respondent to proceed as city marshal of David city in the execution of certain official duties required of him by law.

• Heard there before Barnes, J., upon demurrer to defendant’s answer, which was overruled and judgment given for defendant. cited 2 Kent’s Commentaries, 479 and 480, and notes. Ddgerly v. Gardner, 9 Neb., 130. Russell £ Go. v. Wohler, 7 Neb., 468. Rarmlee v. Adolph, 28 O. S., 15. Byers v. Ohapin, 28 O. S., 301. Rogers Co. v. Niles Go., 11 O. S., 52. cited 1 Nash PL, 148. Gen. Stat., 544, sec. 127. Hayden v. Anderson, 17 Iowa, 158. 1 Parsons on Notes and Bills, 175, 203.

Tried below before Post, J. Tbe altering of tbe assessment rolls by deducting tbe $100 for eacb acre of trees planted makes tbe whole assessment void, at least so far as the deductions are concerned, and equity will give relief so as to place tax payers in the same position as though said deductions had not been made. State of Nevada v. Manhattan Mining Co., 774. American Corporation Cases, page 614. Fenton v. Fellows, 33 Mich., 199, 204. The City of Galesburghv.

These were three eases brought up on error to the district court of Nemaha county, and were argued together. The following facts appear : Januai’y 1, 1878, Jacob Bunn, a banker, of Springfield, Illinois, failed, and made- a voluntary assignment to Brown - for the benefit of creditors. Bunn owned lands in Illinois and Nebraska, and his assignment was made under the Voluntary Assignment Law of Illinois, in force July 1, 1877.

Tried below before Pound, J. The question here was, had the plaintiffs below a special property as the mortgagee of Zeruah C. House ? Rogers v. Arnold, 12 Wend., 30, 35. If the issue as to the property of the plaintiff is either not found at all, or is found for the defendant, the plaintiff cannot have judgment. 2 G-r. Ev., sec. 563. Bemus v. Beckman, 3 Wend., 667, 672. Rogers v. Arnold, 12 Wend., 30, 34.

<p>Error to the district court of Saunders county. Tried below before Post, J.</p> <p>cited 7 Wait’s Actions and Defenses, 358. Harris v. Bathbon, 2 Abb., 326. Glacius v. Black, 50 N. Y., 145. Smith v. Brady, 17 N. Y., 173. Allen v. Curies, 6 0. S., 505. Larkin v. Buck, 11 O. S., 561. Witherow v. ' Witherow, 16 Ohio, 238. Olmstead v. Beale, 19 Pick., 528. Miller v. Goddard, 34 Me., 102. Badgleyv. Heald, 4 Gillman, 111., 64. Hansell v. Erickson, 28 111., 257. Decamp v. Stevens, 4 Blackford, 24. Hayward v. Leonard, 7 Pick., 180. Bishop v. Brice, 24 Wis., 480.</p> <p>cited McDonald v. Montague, 30 Vt., 357. Kinney v. Sprague, 3 Ind., 59. Britton v. Turner, 6 N. BL, 481. Fenton v. Clarke, 11 Vt., 560. Maxwell’s Justice Practice, 489.</p>

<p>1. Mortgage Foreclosure. B., after executing a mortgage upon certain real estate in this state, removed therefrom, and in an action to foreclose the mortgage, service was had upon him by publication. A decree was taken, and sale had of the mortgaged premises. While the proceeds of sale were in court he filed a motion to open the decree, and filed an answer, setting up certain defenses, and also a motion to retain the proceeds of sale in court until final judgment. Held, that both motions should have been sustained.</p> <p>2. -: oPEsriira decree. In such a case, where it appears that the defendant had no actual notice of the pendency of the action, and has a defense to the same, he may open the judgment, as a matter of right, upon complying with the requirements of the statute.</p> <p>Note. — A party in default may be permitted to answer at any time before judgment is rendered. Blair v. West Point Manufacturing Co., 7 Neb., 156. See also ’Frazier v. Miles, ante page 109. — Rep.</p>

Tried below before Weaver, «J. The petition alleged that plaintiff, at the special instance and request of defendant, performed certain mason work upon defendant’s school-house, for which defendant agreed to pay so much .as the same was reasonably worth, which was $80; that afterwards, to-wit: Sept. 23, 1876, “as evidence of such indebtedness,” the defendant executed and delivered to plaintiff an order upon the school treasurer, signed by the director and moderator, for said…

It was an information in the nature of quo warranto, on the relation of the district attorney, alleging, in substance, that in April, 1879, Gandy was duly elected mayor of the city of Humboldt, in said county, and is still acting as such mayor; that at the time of such election “ he was not an elector, of the state of Nebraska, and not being such, was ineligible to be elected to the said office of mayor of said city of Humboldt, or to any other office of honor or trust in…

Heard below before Pound, J. The case was argued here for plaintiff in error by J. L. Caldwell, upon a brief of -Kelly $ Caldwell and Brown ¿- Marshall. He cited Peter v. Finch, 24 Barb., 514. Sprague v. Smith, 29 Vermont, 421. Knight v. Railroad Co., 56 Me., 234. Marony v. Old Colony Railroad, 106 Mass., 153. Palmer v. Railroad, 3 South Car., 580 (16 American Reports, 750). State v. Overton, 4 Zabriskie, 435. Southern Railroad v. Kendrick, 40 Miss., 374.

<p>1. Foreign Judgment: partnership: pleading. L. and "Ü. brought certain actions in the district court of "Wyoming Territory against a company by the -partnership name, and recovered judgment against the firm, and thereafter brought actions on the judgments in this state against two of the partners, to charge them personally. Held, that to maintain such action it was necessary to allege in the petition, and if denied, prove that the partnership property was insufficient to satisfy the judgments.</p> <p>2. Partnership: pleading : joinder. A firm in Wyoming did business by the name of J. W. F. & Associates, and also as D. S. & Co. Held, in an action against a member of the firm upon a judgment against J. W. D. & Associates, and one against D. S. & Co., that the judgments could he joinedinone action.</p>

<p>Error to the district court of'Buffalo county. Tried below before Gaslin, J.</p> <p>cited Hunter v. Commissioners, 2 W. L. M., 474. Albertson v. The State, 9 Neb., 430. Pomeroy’s Remedies & Remedial Rights, 642. 2 Nash Plead. & Practice, 384. Ohitty’s Pleadings, 300-301. Allen v. Batterson, 7 N. Y., 476. Foster v. Kirkpatrick, 2 Minn., 210. Bowen v. Fmm.erson, 3 Oregon, 452. Gen. Stat., pp. 544, Sec. 129.</p>

The action was in replevin to recover possession of some twelve gross of “Pinus Canadensis,” so-called dip, manufactured by Kennedy for Goodman, under a written contract existing between them; After the commencement of the action, Kennard & Forsythe, claiming an interest in the property replevied, were made parties defendant, and upon final hearing, before Savage, J., judgment was rendered in their favor. cited Aldridge v. Johnson, 7 Ellis & Blackburn, 885.

<p>1. Construction of Statutes; constitutional law. The act • entitled, “An act to enable counties, cities, and precincts to borrow money on their bonds, or to issue bonds, to aid in the construction of works of internal improvement in this state, and to legalize bonds already issued for such purposes,” approved February 15th, 1869, and the act amendatory thereof, approved March 3d, 1870, are constitutional.</p> <p>2. Internal Improvements. The building of a county courthouse is not a work of internal improvement, nor was it contemplated by the above mentioned acts.</p> <p>3. County Bonds: authority for. County bonds issued to raise money to build a court-house recited that they were issued under the authority of the aforesaid “internal improvement” acts. Held, That this reference to a statute which gave no authority was no ground for declaring the bonds invalid so long as ample authority was found elsewhere which had been substantially observed. Held further, That such authority was given in chapter nine of the Revised Statutes, 1866, sections 21, 22, and that the bonds were valid.</p> <p>4. -: -. County bonds may be issued to raise money to meet current expenses in case of a deficit in the county revenue, but to do this, they must be first authorized by “a vote of the electors of the county.”</p>

<p>Error to the district court for Seward county. Tried below before Post, J.</p> <p>cited Brandt on Guaranty, secs. 147,170. Firman v. Blood, 2 Kan., 525. Fuller v. Scott, 8 Kan., 32. Robinson v. Abell, 17 Ohio, 42. Seymour v. Mickey, 15 Ohio State, 519. Crosier v. Chambers, 1 Spencer (N. J.), 256. Cushman v. Dement, 3 Scam., 498. Farkhursi v. Vail, 73 111., 345. Boynton v. Pierce, 79 111., 145. Chandler v. Westfall, 30 Texas, 475. Horton v. Manning, 37 Texas, 23. Van Doren v. Tjader, 1 Nevada, 380. Watson v. Hunt, 6 Gratt (Va.), 633. Clark v. Merriam, 25 Conn., 576. Heard v. Dubuque Co. Bank, 8 Neb., 10. Farmers’ Bank v. Reynolds, 13 Ohio, 104. Fuller v. Scolt, 8 Kan., 32.</p> <p>cited Brandt on Guaranty, sec. 153, and cases cited. Hall v. Newcomb, 3 Hill, 233. S. C., 7 Hill, 416. Miller v. Gaston, 2 Hill, 188. Edwards on Bills, 459. Seymour v. Mickey, 15 Ohio State, 515. Parker v. Riddle, 11 Ohio, 102. Robinson v. Abell, 17 Ohio, 42. Hough v. Gray, 19 Wend., 202. Sturtevant v. Randall, 53 Me., 149. Gaffv. Sims, 45 Ind., 262.</p>

The action was to recover of Ward and his bondsmen certain moneys due the plaintiff, district from Ward the treasurer. To the second count of .the answer the plaintiff demurred, which was overruled, and upon the issues joined trial was had before Post, J., and judgment given in favor of the district, to reverse which Ward and his bondsmen prosecuted this petition in error. cited Dillon on Mun. Oorp., secs. 98 and 99.

<p>Error to the district court of Washington county, the same having been brought on appeal from an order of the defendant in error, disallowing the claim of plaintiff, who as an officer had served process and performed other service in and about the arrest of certain persons charged with having committed the crime of “ willfully and maliciously destroying property.” Upon a hearing before Savage, J., the order of disallowance was affirmed.</p>

Plaintiff asked judgment for a sum claimed to be due from defendant as rent of certain premises. The defendant answered, setting up: 1. A general denial. 2. That defendant leased said farm of the owner for the season of 1875, and he continued to hold possession of said farm, under the same contract, during the year 1876. 3.

Judgment below before Barnes, J., in favor of Madison county, to reverse which Stanton county comes here upon a petition in error. . *

The action there was on a note given by defendant, a married woman, to one John G. Compton, and by him transferred to Barnum. Verdict and judgment before Post, J., for defendant.

<p>Error to the district court for Douglas county. Tried below before Savage, J.</p>

This was an action of foreclosure brought in the district court of Stanton county. A decree was rendered in April, 1877, against the Mewises, and cause continued for the purpose of determining the priorities of lien as between the appellee and Frederick Schellpepper.

<p>Mortgage on Homestead. R. and wife executed a mortgage to S. upon a homestead on the public lands, and after making final proof sold and conveyed said homestead subject to said mortgage to N., who afterwards sold and conveyed the same to B., who purchased subject to said mortgage, and agreed to pay the same. In an action to foreclose the mortgage, held, that B. could not avail himself of the defense that it was invalid.</p>

<p>Error to the district court for Johnson county. Tried below before Weaver, J.</p>

<p>Motion to quash bill of exceptions.</p>

<p>Motion to dismiss proceedings in error.</p>

This was an action of replevin brought in the district court of Colfax county - by the Omaha Book Company against the Sutherlands, to recover certain goods and chattels of the alleged value of $300. The facts necessary to an understanding of the case here are, that Sprecher being indebted to the Book Company, gave thema bill of sale of his stock of goods, which was filed and recorded in the county clerk’s office.

Action in the district court of Douglas county upon a draft dated July 22, 1871, for $5,000 drawn by SHawver on George W. Forbes, payable to tbe order of E. M. Forbes, 90 days from date,' accepted by George W. Forbes, “ payable at the Omaha National Bank twenty-third of October, 1871.” E. M. Forbes was merely an accommodation indorser for the other parties.

<p>1. Jurisdiction: action for divorce. Action for divorce commenced in Gage county, where plaintiff resides. Summons issued to the sheriff of, and served on the defendant in, Nuckolls county. Held, that the action was properly brought in Gage county, and that the service on defendant in Nuckolls county gave the court jurisdiction of the person of the defendant.</p> <p>2. -: service of summons : return. The return on the summons was as follows : “ On the twenty-seventh day of August, 1879, I served the within writ of summons on the within named Elizabeth E. Brown, by reading and delivering a true and certified copy of the original, with all the indorsements thereon, as required by law.” Held, that in the absence of objection or motion to quash for insufficient return, the service was good.</p>

<p>Practice: binding: evidence. To justify a reversal of the finding and judgment of a trial court upon questions ■ f fact the plaintiff in error must at least show a clear preponderance of testimony against such finding and judgment.</p>

<p>Motion to dismiss proceeding in error.</p>

<p>Original application for mandamus.</p>

<p>Error to the district court for Washington county. Tried below before Savage, J..</p>

John Forrer brought an action in the district court of Cuming county, alleging; — 1. That he has the legal title to lot 6, block 10, in the city of West Point, in said county, and that defendant John Kloke sets up an estate and interest therein adverse to the plaintiff 2.

Tried below before Savage, J. distinguishing this ease from Lamb v. Stanton County, 8 Neb., 279, said that in that case Lamb filed his bill for four cents each for every extension of personalty, every description of lands and lots, footings, and recapitulations, upon both, books, which was erroneous, as the law provides only for the number of descriptions of lands and lots.

<p>Error to the district court of Lancaster county.</p>

<p>Judgment: mandamus : garnishment. One W. instituted proceedings by mandamus in the supreme court to compel the county commissioners of 0. county to levy a taz for the payment of a judgment against the county, of which he claimed to be the assignee. It appeared from the record that before the commencement of the action, proceedings in garnishment had been instituted by a creditor of the assignor in the district court of said county for the amount due thereon, which were still pending. Held, that the writ must be denied.</p>

<p>Error to the district court for Stanton county. Tried below before Barnes, J.</p>

<p>1. Practice: exceptions. A party dissatisfied with the ruling of the district court in admitting or rejecting testimony must except to the ruling and assign the same for error in the motion for a new trial.</p> <p>2. -: -. Errors not assigned in the motion for a new trial are waived.</p> <p>3. -: assignment op ekroks. Only such errors as were assigned in the motidn for a new trial are proper to be assigned in the petition in error.</p>

<p>Error to the district court for Otoe county. Tried below before Pound, J.</p>

* Error, to tbe district court for Dakota county. Tried below before Barnes, J. Tbe court erred in admitting tbe evidence of tbe witness Holly Scott, wlien upon tbe preliminary examination it appeared that this witness did not possess sufficient capacity to understand the obligations of an oath, admitting that he did not know that it was wrong to swear to a lie, or that there was any responsibility attaching, either moral or legal, for so doing, possessing no conception of…

Tried there before Pound, J. The important question in this case is whether the purchaser of the bonds — the bonds having failed for want of validity — can maintain his action as upon an implied contract for the consideration paid therefor. Eor a full .understanding of this question we must first see in what the invalidity of the bonds consists.

Tried before Gaslin, J. cited 2 Bouvier Die., 516. B. M. B. B. v. Dick £ Son, 7 Neb., 242. ■ Bliss on Code Pleading, sec. 95. Swan’s Pleading, 101. Mowery v. Mast, 9 Neb., 445.

Tried below before Weaver, J. The production of this note in evidence at the trial by plaintiff established a prima facie presumption of law in its favor, to the extent that it is the holder and proper owner and the lawful possessor of the same; that it took it for value, before due, and in the regular course of business. 1 Parsons on Notes and Bills, 255'. Mosen v. Noonan, 7 Wis., 519. Hendricks v. Judah, 1 John., 319. Bonham v. Wood, 8 N. H., 334.

Heard below before Weaver, J., on demurrer to the petition. The petition shows that the defendants procured a judgment which was absolutely null and void, and had the same entered on the court records, without authority of law as a good and valid judgment, and have had executions issued thereon and levied upon plaintiff’s property, and are harassing and vexing him by sales thereof, to his great and irreparable injury.

<p>Error to the district court for Lancaster county, to which the cause was brought on error from the county court.</p>

<p>1. Execution: eeeect on button upon levy without sale. An execution was duly levied upon a quantity of corn. Whereupon, without more being done, the sheriff, by direction of the judgment creditor, returned the execution to the court whence it issued. Held, that such return was an abandonment of'the levy, and that a sale of the eorn by the judgment debtor subsequent thereto gave to the purchaser a good title as against the judgment.</p> <p>2. Statute of Frauds: available only to pabties or privies. The defense given by the ninth section of the statute of frauds is personal, and can not be interposed by strangers to the agreement.</p>

<p>Judicial Sale: appraisement. Appraisers called to value real estate levied upon by the sheriff must appraise the property at its value in money, and deduct the liens therefrom, specifically enumerating each lien and the amount due thereon. It is not sufficient to appraise the interest of the debtor therein.</p>

Appeal by defendants from a decree rendered in tbe district court of Otoe county.

The plaintiee in error brought an action in the district court of Cuming county, alleging in his petition, in substance, that on the twenty-third day of August, 1877, the defendant, B. Y. Yoder, confessed a judgment in the county court of Cuming county, Nebraska, in favor of one E. EL Lacey, for $409.64 and $2.00 costs of court, and the further sum of $37.00 as an attorney’s fee; that to obtain a stay of execution on said judgment, the said B. Y. Yoder executed his…

The action there was brought by Golden to recover damages from Williams and sureties on his bond, on account of a levy and sale of personal property under an execution placed in hands of Williams as constable, and claimed by Golden to be exempt. Judgment below before Pound J., for Golden, and defendants brought the case up by a petition in error.

<p>Appeal by defendant from a decree rendered by Savage, J., in the district court of Douglas county.</p>

<p>Error to the district court of Washington county. Tried below before Sava&e, J.</p>

<p>Practice: appeal in equity : vinal judgment or order. Action by a school board to enjoin the continuance of certain alleged acts of trespass by the unauthorized occupation of the district school-house for religious worship. The record showed that, on motion of the defendants, an order was made vacating the temporary injunction granted at the commencement of the action, but failed to show any final disposition of the case. Held, 'This was not a final order, and that an appeal would not lie therefrom.</p> <p>Note. — A judgment for costs only is not a final judgment. Sprick ■v. Washington County, 3 Neb., 254. Nichols v. Hail, 5 Neb., 194. Miller v. B. §■ M. R. R. Co., 7 Neb., 227. Exception to final judgment not-necessary. Black v. Winterstein, 6. Neb., 224. Judgment in county court. Lewis v. Watrus, 7 Neb., 477. Judgment must conform to finding. Smith v. Silvis, 8 Neb., 164 and note. — Kep-</p>

The action was originally brought before a justice of the peace, by Miller against Tagg. Miller had judgment there, as well as in the district court on appeal, and Tagg came here on a petition in error.

Tried below before Barnes, J. In all cases tbe plaintiff must bave an interest in tbe property sought to be replevied, and must be entitled to tbe immediate possession thereof at tbe time tbe action is brought. Prater v. Frazer, 11 Ark., 249. Baker v. Fates, 16 Mass., 147. Berthold v. Fox, 18 Minn., 50. Hillv. Robinson, 16 Ark., 90. Sprague v. Clark, 41 Vt., 6. Alden v. Carver, 13 Iowa, 253. Moorman v. Quick, 20 Ind., 67. Gartside v. Mixon, 43 Mo., 138.

<p>Error to the district court for Burt county.</p>

<p>' Error to the district court for Clay county. Tried below before Weaver, J.</p> <p>cited Gen. Stat., 632. Smiley v. Sampson, 1 Neb., 83. Dobson v. Dobson, 7 Neb., 296. Horn v. Queen, 4 Neb., 472. Cameron v. Calkins, Northwestern Eep., May, 1880, p. 250. Campbell ‡ Bros, v. Ayres, 4 Iowa, 358. Ballance v. Loomis, 22 111., 82. Story’s Eq. Jul, see. 887, and id., sec. 110-113. Stop-pelf eldtv. Milwaukee R. R. Co., 29 Wis., 688. Oliver v. Fray, 4 Ohio, 175, and note p. 195.</p> <p>cited High on Injunctions, 81, sec. 130-182. 3 "Wait’s Actions and Defenses, 180. 1 N. W. R., 130. Monroe v. Elbert, 1 Neb., 174. Doe, ex dem. Irvine, v. Brown, 6 Ohio State, 12.</p>

<p>Original information in the nature of a quo warranto. Heard here on demurrer to the information.</p>

Tried below before Weaver, J. This case, as shown by the evidence, does not come under the rule insisted on in the Eudolf case. 7 Neb., 125. There the contract was to “ operate in margins,” to the purchase of margins upon grain to be adjusted upon the difference in the market value. In this case the grain itself was purchased and sold; no one had any option except as to which one of the thirty-one days in October the seller might make delivery.

Tried below before Post, J. 1. The court erred in its conclusion of law “ that the plaintiff is estopped from asserting his rights in this action.” We have endeavored to show that there is no evidence to sustain the finding of fact upon which this conclusion of law is based. But if the evidence warranted the finding of fact as found by the court, still the conclusion of law is erroneous.

Appeal by defendant from a decree of tbe district court of Cass county. Tided below before Pound, J. In this case there has been no pretense that plaintiff comes within that class of litigants, living separate and apart from her husband, without an income competent for her support and the maintenance of the suit. She did not ask for alimony pendente lite. Her own testimony shows her ample estate and means of support, and ability to manage the same.

<p>Error, to the district court of Richardson county. Tried below before Weaver, J.</p>

<p>Error to the district court of Pierce county.</p>

This was an action brought in the district court of Johnson county for the foreclosure of a mortgage executed by John A. and Jennie D. Welch, on lands afterwards conveyed to James A. and George S. Welch. James A., who was the owner of the land at the commencement of the suit, alone answered. Upon a trial before Weaver, J., decree of foreclosure was rendered, and James A. Welch appeals. cited JRoode v. The State, 5 Neb., 175. Hoadley v. Stephens, 4 Neb., 434.

<p>Error to the district court of Sarpy county. Tried, below before Savage, J.</p> <p>cited Bit-mars v. Commonwealth, 47 Penn. State, 835. Commonwealth v. Kendig, 2 Penn. State, 448. Warren County v. Warren, 21 Iowa, 84. People v. Treadway, ■17 Mich., 480.</p> <p>cited Latham v, Brown-, 16 Iowa, 118. Stevens v. Breatheven,Wright, 735. Commonwealth v. Ken-dig, 2 Penn. State, 448. , ■</p>

The action there was brought by Errickson, who claimed damages for trespass on a quarter section of land of which he was the lessee, and on which he alleges Delaney grazed his cattle and sheep for two or three months during the summer of 1879.

The cause was tried before Weaver, J. The facts appear in the opinion. The court erred in allowing the papyrograph circulars claimed to have been sent by the indorser, which were dated and received long after the negotiation of the note to plaintiffs, to be read in evidence over the objections of plaintiffs. These circulars were general, and not applicable to anj? particular case.

<p>Quo Warranto: clerk oe district court. Previous to the fall election, 1879, S., county clerk of Ouming county, issued the regular election notices for the several precincts of said county, and inter alia placed thereon, as one of the officers to he elected, that of clerk of ■ the district court. "W. was a candidate for said office at said election, and received a plurality of votes therefor. S., after canvassing said votes with his assistants, as provided by law, refused W. a certificate of election. On quo warranto by ~W. against S. (who is still county clerk, and as such acting clerk of the district court), and proof that according to the census returns for said county for 1880 the population of said county was 5,574 inhabitants, and that the population of said county has been constantly increasing for the past twenty years, Held, That W. was not entitled to said office.</p>

<p>Appeal from County Courts and Justices of the Peace: costs. The plaintiff, in an action commenced in a county court, or before a justice of the peace, who appeals from the judgment, whether for or against him, and does not recover in the appellate court more than twenty dollars, exclusive of interest since the rendition of the judgment appealed from, cannot recover his costs, but shall be adjudged to pay all costs m the appellate court, including a fee of five dollars to the defendant’s attorney.</p>

<p>1. Appeal from Justice Courts. It is only from a final judgment, of a justice of the peace that an appeal lies.</p> <p>2. -. A judgment for costs merely, on the verdict of a jury in favor of the defendant, is not final, and no appeal lies therefrom.</p>

Heelan, the assignee of Grant, was in possession and claiming title to certain personal property, under a deed of assignment made by Grant to him “ for the ben efit of creditors.” Hoagland, as sheriff, levied upon the same by virtue of several executions and attachments sued out by creditors of Grant, and took the property into his possession.

Tried below before Barnes, J. Verdict and judgment for plaintiff, and the McCormicks, who were defendants, come here upon a petition in error. cited 2 Parsons’ Contracts, 35, and note/, 5th ed. Wilson v. Church, 3 Cent. Law Journ., 440. Sutherland v. Wyer, 67 Maine, 64. Howard v. Daly, 61 N. Y., 362. cited Huntington v. 0. £ D. C. JR. JR., 7 Am. Law Peg. (N. S.), 143. Fowler v. Armour, 24 Ala., 194. Thompson v. Wood, 1 Hilton, 93. Taylor v. Dead, 4 Paige, 572.

This was an action brought by Hartnett against Graham, in, the district court of Dakota county, for trespass on land belonging to Hartnett.

Tried below before Weaver, J., who rendered judgment on the verdict of a jury against Ryan, one of the defendants there, for $580.96 and costs of suit. Further facts appear in the opinion. cited Montgomery v. Henry, 10 Mich., 19. Aucker v. Adams, 23 Ohio State, 543. Eaton v. Bartseherer, 5 Neb., 469. An allegation that Hall had no property is no excuse for not issuing execution. Eunlevy v. Tallmadge, 32 N. Y., 457.

Tried below before Weaver, J. The opinion states the case. A person is not deprived of his power and dominion over his property by either indebtedness or insolvency, if he sells and disposes of it and applies the proceeds in his discretion to his debts, his purchases, or his maintenance. 9 Ind., 344. 22 Ills., 661. Smith v. Henry, 2 Bailey, 118.

<p>Cities of the Second Class: construction or statutes. The city of L., a city of the second class, having lawful authority, passed an ordinance to suppress houses of prostitution. While this ordinance was in full force a new law for the government of cities of the second class was passed containing authority to the city council to 11 restrain, prohibit, and suppress ” houses of prostitution, and the former act was repealed without a saving clause. Held, That the new act did not repeal existing ordinances.</p>

<p>Error to the district court of Lancaster county.</p>

Appeal by plaintiff from a decree of foreclosure granted in his favor, but for less than the amount claimed, in the district court of Lancaster county. Tried below before Pound, J.

<p>Original application for mandamus.</p>

Error, to the district court of Colfax county. Tried below before Post, J. citing Gen. Stat., 232, 931, and Laws 1875, p. 12, contended that these provisions of the law show that counties have the power to make, alter, and repair roads and bridges within their limits, and where the law imposes a duty upon a county, by its commissioners, to build and repair roads and bridges, it also gives a remedy for injuries resulting from its non-performance. Angelí & Ames on Corps., 214.

<p>Railroad: liability fob issuance of bills of ladina. An agent of a railroad company, authorized to issue bills of lading, issued certain bills to a shipper for five ears of wheat. In fact less than one car load of wheat and about the same quantity of barley was shipped. Drafts were drawn by the shipper against the bills and attached thereto, and were delivered to a bank, which in good faith discounted the same and forwarded them for payment. The drafts being- protested and the shipper having absconded, and leaving no property in the state, held, That as against the bank the railroad company was estopped from denying that it had received the wheats</p>

H. IT. Gray, defendant in error, filed his claim with the county commissioners of Otoe county, asking that the county refund to him $84.11, alleged to have been by him paid into the treasury of said county on March 11, 1875, for the sale to him of certain real estate by the treasurer thereof for delinquent taxes for the year 1873.

This was an action of replevin brought in the county court of York county by Crone against Campbell, deputy sheriff, who had possession of the property by virtue of an order of attachment issued in a suit wherein one Striekler was plaintiff and .said Crone was defendant. Crone claimed that the property was exempt from execution and attachment under the laws of this state.

This case was originally brought in the county court of Gage county by Fanny M. Reynolds against George B. Reynolds, on two promissory notes, together with interest and ten per cent attorneys’ foe. Colby & Hazlett, attorneys for the plaintiff, filed an attorney’s lien for $45, of which notice was given to the defendant.

Appeal by defendant Hass from a decree of foreclosure rendered in the district court of Lancaster county. The facts are sufficiently stated in the opinion. cited Gen. Stat., 875, sec. 15. Id., 248 and 249, secs. 1 to 7. JEdminster v. Higgins, 6 Neb., 269. Metz v. The State Bank, 7 Neb., 171. Gilbert v. Jess, 31 Wis., 110. Intern’l Life Ins. Co. v. Scales, 27 la., 640. Pringle v. Dunn, 37 Wis., p. 449, and cases there cited. Hamilton v. Doolittle, 37 111., 483.

A complaint was filed before a justice of the peace by Johanna C. Errickson against John Delaney, alleging that she had just cause to fear, and did fear, that the said Delaney would commit an injury to the person or property of herself and husband, Charles Errickson; also that her husband was then confined to his bed by reason of wounds received at the hands of said Delaney.

<p>Stay of Execution and Order of Sale: mechanics’ Lien. On a judgment foreclosing a mechanics’ lien and for sale of the building and premises, the defendant is not entitled to a stay of execution and order of sale on more request, without filing a bond with security.</p>

Tried below before Post, J. Verdict against plaintiff in error, and sentence that he be confined in the penitentiary for four years. cited 1 Bishop Grim. Pro., 235. Brown v. The State, 66 111., 344. 1 Wharton Crim. Law, sec. 607. State v. Sandy, 20 Me'., 81.

<p>Replevin: alternative judgment. In an action of replevin . the property replevied consisted of a steam engine, boiler, grate, gauge cock, engine house, pump, etc.; also an office 10x12 feet, and one Fairbanks hay scales complete, which property was replevied from the sheriff, who had levied upon it by virtue of executions in his hands, but had not removed it from where it had formerly been kept and used. The property was not moved On the order of replevin, but allowed to remain in the same place. The judgment upon the trial was “ that the said defendant have a return of the property replevied in this action, and in case the plaintiff fails for twenty days to return to the said defendant the said goods and chattels, that the said defendant have and recover judgment against said plaintiff for the sum of $418.51, the amount of said executions, and interest to date of this judgment, together with his costs.” The evidence shows that within twenty days after the rendition of the said judgment the plaintiff offered to return the said property to the said sheriff, defendant, but that the said sheriff declared that he would not receive it; that some six months thereafter the said Charles H. Frey, sheriff, caused an execution to be issued for the said $418.51’, the alternative judgment. Held, That an injunction restraining the collection of such execution was properly issued and made perpetual.</p>

This was an action in equity brought in the district court of Butler county to set aside an alleged fraudulent conveyance of certain real property by defendant William Schmitz to defendant Charles Schmitz, and subject the same to the payment of a judgment recovered by plaintiffs against “ The Alexis Mercantile Association,” and the individual stockholders thereof, of whom William Schmitz was one.

district court of Dodge county. Tried below before Post, J. cited Gen. Stat., 875, sec. 16. 1 Greenleaf Evidence, sec. 268. Chi tty on Contracts, 4, 370. Cook v. Bradley, 7 Conn., 57. Bridgman v. Wells, 13 Ohio, 43. cited Richardson v. Bates, 8 Ohio State, 257. Gen. Stat., 392, sec. 5 — 872, sec. 1 — 880, sec. 46. Roads v. Symmes, 1 Ohio, 281. Roode v. The State, 5 Neb., 174. Bridgman v. Wells, 13 Ohio, 43.

<p>Practice in Supreme Court: findings of district court. In the case made, held, that where the case made is one of fact only, in order to justify the reversal of the finding of the court helow, this court must'find the testimony to be clearly against the finding;-that in the case at bar the finding is sustained by the evidence.</p>

<p>A Sinking Fund Tax is a tax raised to be applied to the payment of the interest and principal of a public loan, and it can-' not, under the statute, be levied for the payment of floating indebtedness. ¡7. P. Railway Co. v. Buffalo Co., 9 Neb., 449.</p>

<p>Error to the district court of Saline county. Tried below before Pound, J., sitting in the absence of Weaver, J.</p> <p>cited Mowery v. Mast, 9 Neb., 448. Meridith v. Kennard, 1 Neb., 819. High v. Merchants Bank, 6 .Neb., 158.</p> <p>cited Armstrong v. Freeman, 9 Neb., 11. Graham v. Kibble, 9 Neb., 182.</p>