Volume 11 — Nebraska Reports

The plaintiffs in error were indicted at a special term of the court called in that county, commencing February 25, 1879, for the… Held: and to provide for the payment of fees and expenses incurred in the arrest and prosecution of such persons, and to repeal an act entitled ‘ An act to authorize the judges of the district court to designate the county where an indictment may be found, and the person tried for any felonious offense charged to have been committed in any…

<p>Municipal Corporations: special assessments: construction op sewers. In 1878, the mayor and council of the city of Omaha divided the city into sewer districts, numbered one and two, district one being about two and one-half miles in length, by one and three-fourths in width. They thereupon let contracts for the construction of a main sewer in the channel of a creek in said district, at a cost exceeding $30,000, and assessed all the real estate in the district for its payment, on the ground of benefits. Held, that special assessments could only be levied upon property specially benefited, and only to the extent of the benefits.</p>

<p>Error to the district court for Lancaster county;-* Tried below before Pound, J.</p>

<p>Appeal by defendants from a decree of the district court of Clay county. Tried below before Weaver, J.</p>

It was an action for the foreclosure of a mortgage given as security for the payment of certain notes, tried before Weaver, J., who rendered a judgment upon the notes in favor of plaintiffs for the sum of $568.31 and costs, but refused to “ enforce said mortgage, it being against.equity and conscience.” Plaintiffs thereupon brought the cause here by petition in error.

Original application for an injunction to restrain defendant from issuing a tax deed upon certain property owned by. plaintiffs, in pursuance of a sale for taxes tbereon, plaintiffs contending that the same were void.

Tried below before Weaver, J. Beyond the facts stated in the opinion it may be added that the defendant Harkendorf was the executor of John G. Falsken, and the other defendants are devisees under his will bequeathing the land in controversy.

It was an action for damages, arising out of the alleged negligence of the defendant in transmitting and delivering to the plaintiff a telegraphic dispatch in terms different from those in the message left for transmission.

<p>Error to the district court of Adams county. Tried below before Gaslin, J.</p> <p>No brief on file.</p> <p>cited Wiley v. Starbuek, 44 Ind., 298. Billingsley v. Dean, 11 Ind., 331. Sperry v. Horr, 32 Iowa, 184.</p>

<p>Original application for a writ of habeas corpus.</p>

<p>1. Elections: contesting elections : notice. A notice of contest of election which states that the contestant was an elector of the district, the points of contest, the office contested, and the date at which its duties commenced, the person selected to-take depositions, and the time and place of taking the same, is sufficient.</p> <p>2, -: -: depositions. The persons selected to take depositions, if they refuse to take testimony offered relating to the points of contest, may, after entering upon their duties, he compelled hy mandamus to proceed.</p>

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

It was an action by Turner against O’Brien to recover damages for causing the said Turner to be arrested and imprisoned on a charge of grand larceny. The defendant alleged in justification- that he was the owner of grain purchased at sheriff’s sale, and that plaintiff knowing this, took a portion - thereof, threshed, and hauled it away, and that defendant upon advice of a competent attorney caused the arrest and* imprisonment of plaintiff.

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

<p>Error to the district court of Stanton county, Tried below before Barnes, J.</p> <p>cited Bump on Bankruptcy, 6th Ed., 385. Mc-Kibbon v. Martin, 64 Penn. St., 352 (3 Am., 588).- In-galls v. Merrick, 102 Mass., 351 (11 Am., 360). Marsh v. Armstrong, 20 Minn., «81 (18 Am., 355).</p> <p>cited Ketchum v. Watson, 24 111., 591. Lake v. Morris, 30 Conn., 301. Gadbury v. Nolen, 5 Penn. State, 320. JDewart v. Clement, 48 Id., 413. Burrows v. Stebbins, 26 Vt., 650. Vance v. Boynton, 8 Cal., 554. Monroe v. Mussey, 1 Oregon, 188, England v. Commercial Insurance Co., 16 La. Ann., 5. Brown v. Keller, 2 Grant, 144. Bump on Fraudulent Conveyances, 60-103.</p>

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

<p>Equity: title by attachment proceedings. In May, 1857, one U. entered a tract of land in Douglas county, and in September of that year mortgaged one half of" the same for $675, payable in eighty-seven days. The mortgage was recorded, and afterwards, on the twentieth of March, 1858, was assigned to one R., who advanced an additional sum to IT. on the land, and took an assignment of the certificate. On the twelfth of April, 1858, an action by attachment was commenced against U., and the land in question attached, service being had by publication. Judgment was thereafter recovered, the lands sold, the sale confirmed, and a deed ordered, but no deed executed. In 1863, 1870, and 1876, motions requiring the sheriff to execute a deed were sustained, and a deed was made in 1876. In 1866, R. took a conveyance of the land from U., and in 1868 conveyed to D. Held, in an action by the heir of D. to quiet title, that the attachment proceedings divested TJ. of title and were notice to third persons of the pendency of the action.</p>

<p>Error' to the district court of Lancaster county. Heard on exceptions to report of referee before Pound, J.</p> <p>cited Pártelo v. Harris, 26 Conn., 480. Mfield v. Gaston, 12 Iowa, 218. Steele v. Ward, 25 Iowa, 535.</p> <p>cited Hanson v. Buckner, 4 Dana, 252. Bogard v. Gardley, 4 Smedes & M., 302. Mohawk Bank v. Atwater, 2 Paige Ch., 54. Young v. White, 25 Miss., 146. Bump on Fraudulent Conveyances, 216. I/yne v. Bank of Ken- ■ tacky, 5 J. J. Marsh., 545. Constantine v. Twelves, 29 Ala., 607. Blakeney v. Kirkley, 2 Nott & McCord, 544. Clark v. Bcpexo, 25 Penn. State, 516.</p>

<p>Pleading: foreclosing mortgage: answer: res ad judicata. In a foreclosure suit where several parties are made defendants as lien holders, subsequent purchasers, or lessees of the mortgaged premises, their several answers claiming rights as such lien holders, subsequent purchasers, or lessees, may be regarded also as cross-petitions for relief as against their respective co-defendants as well as against the plaintiff. And any such defendant, regularly served with process, who fails to answer any material allegation contained in the answer of his co-defendant is bound thereby as well as by the decree founded thereon, and unless he appeals therefrom the same becomes as to him res adjudícala.</p>

The action was founded on two promissory notes. Defense, that notes were given in consideration of a threshing machine which the plaintiffs sold and delivered to defendants, with certain warranties accompanying the sale, etc.; that the machine did not work as warranted, whereby defendants were damaged, etc. Trial below before Pound, J., and a jury, resulted in a verdict for defendants, and plaintiffs brought the case up upon a petition in error.

The case was replevin to recover possession of certain personal property which the defendant, Batie, had mortgaged to secure notes executed by him to Reynolds, who assigned same to Eirst National Bank of Eremont, who assigned same to Tompkins.

The petition states, among other things, the organization of the Nebraska Leather Company, plaintiff’s possession and interest as stockholder therein, and conveyances to defendants of the real estate belonging to the corporation by the president, one Holcomb, and one Baldwin, claiming to act as secretary, without any authority of the stockholders or board of directors, without consideration, and for a fraudulent purpose of benefiting Holcomb and Baldwin, and that they had…

It was an action brought to recover the penalty imposed for taking of illegal fees by Gen. Stat., 885. Comp. Stat., 280. Plaintiff had judgment, and Cobbey, defendant, then brought the cause up by petition- in error. A party cannot by contract abridge or sign away his statutory rights. Curtis v. O’Brien, 20 la., 876. Gittings v. Baker, 2 Ohio St., 21. To incur the penalty imposed by statute, the act must be knowingly and corruptly done, whether the statute provides so or not.

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

Action quia timet brought by defendant in error in the district court of Seward county. Trial there before Post, J., resulted in favor of plaintiff, and defendant Gregory brought cause here on a petition in error.

Tried below before Sava&e, J. The suit should have been brought in the name of Rebecca O. Bonner, the beneficiary. • Swan v. Snow, 11 Allen, 224. James Bonner was the real party in interest. The wife had no vested interest in the policy. Lemon v. Phoenix L. Ins. Co., 38 Conn., 294.

<p>Original- action in quo warranto.</p>

Original application for mandamus. No brief on file. contended, 1st, Mandamus not the proper action to try the right to the office; and, 2d, the statutes (Laws 1879, p 241) did not authorize an election in 1880.

It was an action brought by Rose for the recovery of damages alleged to have been sustained by him in consequence of his removal from a train of the B. & M. R. R. Co. The plaintiff in his petition alleged that the weather was exceedingly warm at the time, and that he was ill, which fact was known to the conductor, and that he was willing and offered to pay a reasonable compensation to the conductor in charge of the train, and that the conductor removed him and he was…

Tried below before Pound, J. The pre-emption contract, and payments and improvements under it, was not a mere option agreement to purchase. Perkins v. Hadsell, 50 111., 216. If it were, its terms had been waived and varied by the parties. The reply put in issue conditions precedent. Birdsall v. Carter, 5 Neb., 517. Nichols v. Hail, 4 Neb., 214. Livesey v. Hotel, 5 Neb., 50. Kellogg v. Lavender, 9 Neb., 418. The question of waiver is one of fact. Page v. Greeley, 75 111,, 400.

One Blair contracted to sell one Bushneli certain lots, then assigned his interest to the S. C. & P. R. R. Co., appellee’s grantor. Bushneli, who was to make deferred payments and pay subsequent taxes, assigned his interest to Pollock. Action to collect deferred payments and taxes paid. Defendants demurred, and demurrer being overruled, answered. Decree for plaintiffs and sale ordered, from which defendants appeal. Tried below before Savage, J. cited Q-en.

<p>Appeal from the district court for Richardson county. Tried below before Weaver, J.</p> <p>cited Story’s Eq. Jur., secs. 384 to 392,1536. 1 Greenl. Ev., 207. Tyler on Inf. & Cov., 448. Bussell v. Long, 3 N. W. R., 75. Hatch v. Gray, 21 la., 29. Schweizer v. Tracy, 76 111., 350. Young v.- Hibbs, 5 Neb., 433. Bank v. Shaffer, 9 Neb. 1.</p> <p>contended that plaintiff’s possession was notice of her rights, and that she occupied the land as a homestead. Cited on question of estoppel McAfferty v. Conover, 7 Ohio St., 105. Moore v. Beavies, 15 Kans., 150. Johnston v. Turner, 29 Ark., 280. Thompson on Homesteads, sec. 408.</p>

Error from the district court' for Saunders county. Tried below before Post, J. contended there was a waiver of the forfeiture of the contract, and whether there was or not was a question for the jury. Dilleber v. Insurance Go., 76 N. Y., 570. Prentice v. Ins. Co., 77 N. Y., 483. Insurance Co. v. French, 30 Ohio St., 240. A non-suit should not have been granted. , Sutton v. Wauwatoosa, 29 Wis., 33. Grant v. Cropsey, 8 Neb., 209. State Ins. Co. v. Todd, 83 Pa. St., 272.

<p>Appeal: waiter: jurisdiction. Appeal by plaintiff in error to the district court from the award of damages to her by the appraisers appointed to assess the damages to property holders caused by a change of grade of a street of the city. After. a jury was empaneled and sworn, and a witness sworn and examined by appellant, and cros's-examined by appellee, appellee moved to dismiss the appeal for the reason that the same was not taken in time. Motion sustained and the appeal dismissed. On error to this court, held, that whatever might have been the right of the appellee, had it moved in time, after allowing the appeal to stand for a year and a half, 'and participating in the selection of a jury to try the cause and actually entering upon the trial, it was too late to avail itself of such rights, and that to entertain a motion to dismiss for such cause at that stage of the trial was error.</p>

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

The action was brought to recover for work and labor performed by McComber for Parcell. The answer contained four counts. 1. A general denial. 2. That labor sued for was performed under a contract for a year’s service, Oct. 1, 1876, to Oct. 1, 1877; that Mc-Confber left employment Mar. 15,1877, without cause, etc. 3. A repetition of contract set up in the 2d count, its abandonment by McComber, and claiming damages by reason thereof. 4.

<p>Error to the district court of Dodge county. Tried below before Post, J.</p> <p>cited Fouty v. Fouty, 34 Ind., 433. State v. Prather, 44 Id., 287. Hazlett v. Burge, 22 la., 535. Morrison v. Koch, 32 Wis., 254.</p> <p>cited Shaeffer v. Shade, 7 Blaekf., 178. Nowlan v. Gain, 3 Allen, 261. Miller v. Barber, 66 N. Y., 558. Faribault v. Slater, 13 Minn., 223. Smith Lead. Cas., 284, 301.- Cooley on Torts, 491. Sandford v. Handy, 23 Wend., 260. Sharp v. May err, 40 Barb., 256. 2 Wharton Ev. Simar v. Gonady, 53 N. Y., 298. 3 Wait’s -Actions and Defenses, 436. Allen v. Hart, 72 111., 104. Martin v. Jordan, 60 Me., 531.</p>

<p>Original application for a writ of habeas corpus.</p>

Tried below before Pound, J. The contract, being by parol, falls within the statute of frauds. A payment by cestui que trust of a part of the purchase money does not relieve against the express provision of the statutes. Gr. S., chap. 25, § 8. Bank v. McGoniga, 8 Neb., 245. Sugdon on Vendors, sec. 911. Brown on Stat. Frauds, sec. 98 (3d Ed.) 1 Perry on Trusts, sec. 135. Holmes v. Holmes, 44 111. 168. Green v. Drummond, 31 Md., 71. Barnet v. Dougherty, 8 Casey, 371.

Error from tbe district court for Cass county. Tried below before Pound, J. contended that tbe county treasurer was tbe agent of tbe county, and as sucb received tbe moneys sued for, because tbe act of receiving tbe “redemption money” is provided by law. Gr. S., 922, § 64. Tbe county is not liable. Onderdonk v. Brooklyn, 31 Barb., 505.

Error from the district court for Cass county. Tried below before Pound, J. Instruction No. 2 (recited in the opinion) takes from the jury the right to find whether there had been a delivery of the property to the plaintiff. . Meredith v. Kennard, 1 Neb., 319. Meyer v. M. P. P. P. Co., 2 id., 338. Billings v. McCoy, 5 id., 191. Hail Ins. Co. v. Wilde, 8 id., 431. Gillet v. Corum, 5 Nans., 612. Price v. Mahony, 24 la., 582.

Error from the district court of Cuming county. Heard below by Barnes, J. The title of a case is as much a part of the petition as any other part. Code, see. 89.' Moreover, this is a suit not against the partnership but the individual members. Smith v. Gregg, 9 Neb., 213.

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

327, 333), for tbe taxes of 1876, including among others a road tax of four dollars per quarter section. Even if tbe road tax was illegal, it could not defeat tbe tax deed or render tbe sale invalid. Laws 1879, sec. 142, p. 334.

The plaintiff in error obtained a judgment against the Omaha Horse Railway Company, for damages for personal injuries sustained by her while a passenger upon one of the cars of the company, caused, as alleged, by the negligence of the driver of the car.

Heard below by Weaver, J. The pretended contract between Peacock and his wife being at most a verbal one, is of no force against creditors. Beade v. Livingston, 3 Johns. Oh., 483. Siddle v. Needham, Slip. Ot., Mich. The deed to Mrs. Starrett was made after the death of Mrs. Peacock, and upon the death of the wife, Peacock’s interest by curtesy was liable for his debts, and a conveyance of it was void as to creditors. Beade v. Livingston, supra. Bayard v. Hoffman, 4 Johns.

Re-hearing of the case reported in 10 Neb., 150, where it is stated at length. A mortgagee, under a mortgage containing covenants of warranty, so far as is necessary to protect his interest, is entitled to the benefits of the covenants as completely as a grantee under a deed containing such covenants. Rawle on Covenants, pp. 26, 27, 29, 32, 344, 346. 2 Wash. Real Prop., 159. White v. Whitney, 3 Met., 81. Harper v. Perry, 28 la., 58. Lockwood v. Sturdevant, 6 Conn., 378.

The action there was to recover damages alleged to have been sustained by reason of a defective sidewalk in the city of Crete. Trial below before Weaver, J., and a jury, resulted in a verdict of $300 for plaintiff, upon which she had judgment, and the city brought the case here for review upon a petition in error.

<p>1. Assault and Battery: who abb fkincipals in. In an assault and .battery, not only he who is the actor or actual perpetrator of the offense, but he also who, being present when the act is done, aids and abets therein, is a principal and liable as such at the suit of the injured party.</p> <p>2. -: -. Evidence examined and held sufficient to warrant a verdict against the defendant as principal in the battery complained of.</p>

<p>1. Replevin. One M. purchased a building occupied by R., as tenant, and without giving him the statutory notice to quit, recovered possession of the building by an action of replevin. Held, that replevin was not the proper remedy, and R. was entitled to recover all damages sustained.</p> <p>2. Damages. Exemplary or punitive damages cannot he recovered.</p>

<p>Forcible Entry and Detainer: vekdict. In an action of forcible entry and detainer, where the only errors assigned are that the judgment is against the weight of evidence, it will not be reversed, unless it is clearly wrong.</p>

Original action in mandamus. When a sale of realty for taxes has occurred and a defective deed executed and delivered to the purchaser thereon, the tax purchaser is entitled to a valid deed, and the treasurer can be compelled to execute a second one. Johnson v. Chase, 30 Iowa, 308. Cray v. Coan, 30 Iowa, 536. State v. Winn, 19 Wis., 304. Woodman v. Clapp, 21 Wis., 353. Maxcy v. Claburg, 1 Gilm., El., 26. Clippinger v. Tuller, 10 Kas., 377. Bank v. Mersereau, 3 Barb., Ch. 578.

Error from the district court for Otoe county. Tried below before Pound, J. Action by a mortgagee against mortgagor, after foreclosure, on the covenants to “ keep all taxes paid,” for moneys paid to redeem land from tax sale. The extinguishment of the debt extinguishes the mortgage for every available purpose. Halsey v. Reed, 9 Paige, 446. Blunt v. Walker, 11 Wis., 348. Howry v. Hood, 12 Wis.,429. Jones on Mortgages, 77. Rawle on Cov., 459. Sherman v. Sherman, 3 Ind., 337.

Error from the district court for Gage county. Tried below before Weaver, J. The machine being a mere chattel security for the note, and never having been reduced to possession by the creditor, the failure to foreclose the lien and apply proceeds in payment of the debt did not discharge the surety. JBurr v. Boyer, 2 Neb., 265. 1 Story Eq. Jur., sec. 501. Brant on Suretyship, sec. 390. Hays v. Ward, 4 Johns. Ch., 131. Jones v. Tincher, 15 Ind., 308.

<p>1. Rape. To constitute the crime of rape, where it appears that at the time of the alleged offense the prosecutrix was conscious and had the possession of her natural mental and physical powers, and was not terrified by threats or in such position that resistance would be useless, it must appear that she resisted to the extent of her ability.</p> <p>2. -: evidence. In a prosecution for rape the prosecutrix may be asked whether she made complaint of the injury ; but the particulars, when not a part]of the res gestee, are not evidence of the truth of her statement, and cannot be given as evidence in chief.</p>

Error from the district court for Lancaster county. Heard below by Pound, J. contending that the article is libelous per se, being printed and published, and hence special damages need not be averred, cited Rarr v. Moore, 87 Pa. St., 385. Tryon v. Foening News Assn., 39 Mich., 636. Tillson v. Robbins, 68 Me., 295. ITolt’s Law of Libel, 218-223. Steele v. Southwick, 1 Am. Lead. Cases, 123. Whitney v. Janesville Gazette, 5 Biss., 330. Dexter v. Spear, 4 Mason, 115.

Error from the district court for Saline county. In 1876,1877, and 1878, the treasurer of the city of Crete turned over to the county treasurer certain license moneys collected under a city ordinance. Plaintiff, who is treasurer of school district No. 2, which embraces said city, brought suit to recover the said moneys from the present county treasurer.

<p>Error from the district court for Douglas county. Tried below before Savage, J.</p> <p>cited Gillette v. Morrison, 9 Neb., 395.</p> <p>cited Helling v. N. E. Mort. Co., 10 Neb., 611. ■ High v. Bank, 6 Neb., 155. Seymour v. Street, 5 Neb., 85.</p>

<p>Error from the district court for Douglas county. Tried below before Savage, J.</p> <p>cited Gage v. Chesebro, 5 N. W. Rep., 881. Hedman v. Anderson, 6 Neb., 400. Pártelo v. Harris, 26 Conn., 480. Steele v. Ward, 25 la., 535. Brown v. Eoree, 7 B. Mon., 357. Bryne v. Becker, 42 Mo., 264. Foster v. Hill, 12 Pick., 89. Bancroft v. Blizzard, 13 Ohio, 30. Tagg v. Miller, 10 Neb., 442. Weinland v. Cochran, 9 Neb., 480.</p>

<p>Appeal from the district court for Lancaster county. Heard below before Pound, J.</p>

Error from the district court for Lancaster county. Tried below before Pound, J. argued the case upon the facts alone. The proceedings in attachment are a nullity. Drake on Att., sec. 28. Kinear v. Shands, 36 Mo., 379. Haynes v. Gates, 2 Head (Tenn.), 598. Stacey v. Stichton, 9 Iowa, 399. Moore v. Dickerson, 44 Ala., 485. Dickenson v. Coioley, 15 Kan., 269. Davis v. Eppinger, 18 Cal., 379. Moore v. Pillow, 3 Humph., 448. Webster v. Steele, 75 HI., 544.

Appeal by defendants from an order of confirmation rendered by Savage, J., in an action tried in the district court for Washington county. See 8 Neb., 297, and 9 Neb., 165. cited Duncan v. Dodd, 2 Paige, 99. Blackburn v. S. R. Co., 3 Fed. Rep., 689. ' Roreron Judicial sales, 163. cited Rorer on Judicial sales, secs. 108, 585. Paulett v. Peabody, 3 Neb., 196. La Flume v. Jones, 5 Neb., 256. Rosenfield v. Chada, 10 Neb., 421. Code, sec. 52. Wiley v. Angel, Clarke, 217.

<p>Original application for writ of habeas'corpus.</p>

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

<p>1. Former Suit in Bar. Action of forcible entry and detention. Answer, former suit in bar. Evidence — suit between tbe same parties for tbe forcible entry and detention of the same property in tbe county court. Judgment of non-suit. Cause taken to tbe district court, on error, by the plaintiff. Judgment of the district court that tbe county court bad no jurisdiction of tbe action. Meld, no bar to tbe present action.</p> <p>2. Abuse of Discretion. After defendant had rested his case, be applied to tbe justice for leave to withdraw bis rest, for the purpose of showing “bow Pence came into possession, that Pence holds under Dorrington, and that Dorrington has deed to land from Lowe, and Dorrington bought bouse from Raw.” Application refused. In the light of the facts in tbe case, held, no abuse of discretion.</p>

<p>Appeal from Gage county. Tried below before Weaver, J.</p> <p>The conveyance from Charles A. to William T. Savage was not fraudulent as to creditors. Felton v. Dickinson, 10 Mass., 287. Brewer v. Dyer, 7 Cush., 337. Carneigie v. Morrison, 2 Met., 381. Barker v. Bucklin, 2 Den., 45. D. H Canal Co. v. Bank., 4 Den., 97. Burr v. Beers, 24 N.Y,, 178. Bealls v. Bealls, 20. Ind., 163. Allen v. Thomas, 3 Met. (Ky.), 198. Bohanan v. Pope, 42 Me., 93. Orocker v. Higgins, 7 Conn., 342 (347.) Thompson v. Gordon, 3 Strob. (S. C.), 196. Lucas v. Chamberlain, 8 B. Mon., 276. Beers v. Robinson, 9 Barr., 229. Dearborn v. Parks, 5 G-reenl., 31. Jackson v. Hoffman, 9 Cow., 271. Johnson v. Gilbert, 4 Hill, 178. Crown v. Curtis, 2 Conn., 225. Barker v. Bucklin, 2 Den., 45. Smith v. Pinch, 2 Seam., 321. Jones v. Palmer, 1 Doug., 370. Thompson v. Gordon, 3 Strob. (S. C.), 196. Cordell v. McNiell, 21N. Y., 336. Pike v. Brown, 7 Cush., 133. Haydon v. Christopher, 1 J. J.' Marsh, 382. Robbins v. Byers, 10 Mo., 538. Maxwell v. Harris, 41 Me., 559. Barringer v. Warden, 12 Cal., 311. Kutzmyer v. Hnnis, 27 N. J. (L.), 371. The notice in the attachment proceedings commenced by Aiken was insufficient to give court jurisdiction and Aiken any title. It was not published four consecutive weeks. Eirst insertion July 27, 1876, the fourth and last, Aug. 14, 1876, being only 18 days. Atkins v. Atkins, 9 Neb., 191, and cases cited. Webster v. Reid, 11 How., 437. Rape v. Heaton, 9 Wis., 328. Northrop v. Shepard, 23 Wis., 513. Senichka v. Lowe, 74 HI., 274. Faulkner v. Guild, 10 Wis., 569. Pollard v. Wegener, 13 Wis., 569. Claypool v. Houston, 12 Kan., 321. McMerrin v. Whelan, 27 Cal., 300. Shields v. Miller, 9 Kan., 390. Boyland v. Boyland, 18 111., 552. Brownfield v. Dyer, 7 Bush., 505.</p> <p>The conveyance to William T. Savagé was fraudulent, and the burden of proof is on the donee to repel the presumption of 'fraud. Bump, on Eraud. Conv. and cases collated on pp. 259, 270, also Johnson v. Dick, 27 Miss., 277. Weisiger v. Chrisholm, 28 Tex.', 790. Butler v. Break, 7 Me., 166. Gillitte v. Phelps, 12 Wis., 393. Merrile v. Lock, 41 N. H., 491. Purkett ¿- Polarlc, 17 Cal., 332. Ferguson v. Gilbert, 16 Ohio St., 88. Jones v. Taylor, 2 Atk., 600. Bump. Fraud. Conv. 95, 96. Mrs. Savage took with notice. G. S., 536, secs. 79, 80, 85. Bennett’s Lessee-v. Williams, 5 Ohio, 461. Wade on Notice, § 348 p. 151. The notice of publication was sufficient. The affidavit of the publisher shows that it “ was published in said newspaper in said county four consecutive weeks, and four times once in each week; that said fourth publication of said notice and said fourth consecutive week of said four consecutive publications, was made and completed on the 14th day of August, a.d. 1876.” The first publication was made on the 27th day of July. The statute does not require four weeks’ notice. A publication of the notice in four consecutive weeks is what is required. It is no objection to the publication of the notice that four full weeks did not elapse between the first and last days of publication, or that a period longer or shorter than seven days intervened between the successive issues of the paper. Oleott v. Robinson, 21 N. Y., 150. Rockendorf v. Taylor’s lessee, 4 Pet., 349. Bachelor v. Bachelor, 1 Mass., 256. Pier-son v. Bradley, 48 111., 250. Gass v. Bellows, 31 N. II., •501. Sheldon v. Wright, 5 N. Y., 497. Wade on Notice, sec. 1076, 77, 78, 79, 1101. Maxwell’s PI. and Pr., 51.</p>

Error from the district court for Adams county. Tried below before Gaslin, -J. The action was on a promissory note given by Yocum to one Clark, in payment of a package of cloth, etc., and by Clark assigned to plaintiff.

Tried below by Weaver, J. The action there- was brought by Anderson Bailey as administrator to recover damages Resulting from the death of his infant daughter, Alice N. Bailey, on account of the carelessness and negligence of the defendant company. Y erdict and judgment for plaintiff in sum of $2,000.00, from which the defendant prosecuted its petition in error. cited, inter alia, R. R. Co. v. Stout, 17 Wallace 657.

Tried below before Pound, J. cited Uhl v. May, 5 Neb., 157. Metz v. State Bank, 7 Id., 165. Dorsey v. Hall, Id., 460. The rule laid down in Filley v. Duncan, 1 Neb., 134, should certainly be maintained in this case where a non-resident party took his title while it was in force, if it may be deemed to be in any manner shaken since. Stiles v. Murphy, 4 Ohio, 92. Packer’s Appeal, 6 Penn. St., 277. Lea v. 'Hopkins, 7 Id., 492.

<p>Error to tbe district court of Butler county. Tried below before Post, J.</p> <p>cited Loving v. Pairo, 10 Iowa, 288. Biek v. Burdett, 1 Paige, 305.</p>

Appeal by defendants from a decree rendered against them in the district court of Saline county, Weaver, J., presiding, perpetually enjoining the coleetion of taxes assessed and levied upon the property of plaintiff for the year 1874. cited Cooley on Taxation-, 195. Saxton v. Nims, 14 Mass., 315. Grommet v. Pearson, 18 Maine, 344. Palmer v. Boling, 8 Cal., 384. Hartwell v. Boot, 19 Johns., 345. Guy v. Washburn, 23 Cal., 111. Lessees of Wardv.

Tried below before Weaver, J. Property pledged as security or occupying the position of surety is discharged under similar circumstances to those which discharge an individual surety, and anything which will discharge an individual surety will discharge such property. Brandt on Suretyship and Guaranty, 21, 23. Gahn v. Niemcewicz, 11 Wend., 324. Niemcewicz v. Gahn, 3 Paige Ch., 614. 1 Hilliard on Mortgages, 494.

<p>Corporation: EomrEiTtniE or franchise. Repeated and wilful acts of misuser or nonuser by a corporation which are of the essence of the contract between it and the state, constitute a just ground of forfeiture of the franchise.</p>

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

<p>School Law: mandamus. One B., moderator of a school district, refused to sign a- report to the county clerk of the lawful taxes voted by his district at the annual meeting. Held, That it being a duty enjoined by law, he would be compelled by jnandamus to sign the same.</p>

<p>Error to the district court for Gage county. Tried below before Weaver, J.</p> <p>cited Irwin v. Oroxton, 3 Neb., 453. 3 Dallas, 321. 7 Crunch, 108. 9 Howard, 314. French v. People, 77 111., 537. 4 Neb., 569. 5 Neb., 567.</p> <p>cited Wilson v. Shoriek, 21 Iowa, 298. 3 W. L. M., 141. Hathaioay v. Jones, 20 Ark., 109. Riddle v. Yates, 10 Neb., 510. Nichols v. Ilail, 5 Neb.</p>

The action there was on a promissory note given by Huff to one Byrne, and by the latter assigned to plaintiff. Trial below before Weaver, J., and a jury. Verdict and judgment for plaintiff, and Huff, defendant, brought cause here on a petition in error. cited 3 Green-leaf Ev., sec.' 106, note 1. 1 Chitty Pleading, 483, note 2. cited Gen. Stat., 583, see. 344. Myers v. Toscan, 3 N. H., 67. Reid v. The State, 20 Georgia, 681. Clark v. Wyatt, 15 Ind., 271.

<p>1. Liquor License not Assignable. E. P. held a license from the city to retail malt, spirituous, and vinous liquors. He sold out his stock in trade, furniture, and fixtures to the defendant, and assigned his said license to him. Held, that such license so assigned to him was no defense to an indictment against defendant for selling such liquors “without first having obtained a license therefor.”</p> <p>2. A License issued contrary to the statute confers no authority to vend malt, spirituous, or vinous liquors. B. P. held a liquor license issued under the authority of the mayor and council of E. City. He sold out his saloon and assigned his license to the defondant, who petitioned the mayor and council to transfer the said license to him. The council thereupon ordered the said license to be transferred to the defendant. The city clerk thereupon issued an original license (in form) to the defendant, who proceeded to retail spirituous liquors under it, and was indicted therefor. Held, that such license was no defense to such indictment.</p>

The defendants in error brought their action in the district court of Gage county to recover possession of lot three, in block sixty-five, in the city of Beatrice, and to recover rents and profits thereof. The plaintiff in error in his answer claimed title to the premises under a tax deed dated Eeb. 11, 1868, made and recorded more than ten years prior to the commencement of this suit, and alsos et up the occupying claimants? law. .

Appeal trom a decree rendered by Savage, J., of the district court for Douglas county. cited Peet v. O’Brien, 5 Neb., 362, 365. Wemier •v. Purler, 4 N. W. R. (Mich.), 306. The remedy of foreclosure was repealed by act of 1879, sec. 183, p. 349. Saving clause saves only rights, not remedies. Sedgwick on Statutory and Constitutional law, 108. Bennett v. Hargus, 1 Neb., 419. Van Inwagen v. Chicago, 61 111., 31. Hunt v. Jennings, 5 Blaekf., 195.

This was an action to foreclose a mechanic’s lien brought in the district court of Gage county by Le Poidevin & Co. against Griggs & 'Warner. The case was heard on demurrer to the petition before Weaver, J., who overruled the same, and defendants failing to plead further, judgment was rendered against them, to reverse which they brought the cause here on a petition in error. cited 1 Parsons on Contracts, 8. 1 Chitty Pleading, 294-295. Phillips’ Mechanic’s Lien, 440-457.

Injunction to restrain defendants from selling, upon execution, property described in the petition, alleged to be the homestead of plaintiff. The cause was brought in the district court of Richardson county, and upon a hearing there before Weaver, J., decree was rendered in favor of plaintiff, from which defendants appeal. cited Thompson on Homesteads, secs. 10, 40, 73, 291, 292, 293. Cooper o. Cooper, 24 Ohio State, 488.

<p>1. Practice: continuance: new trial. While an application for a continuance is addressed to the discretion of the court, yet where a party has been diligent, and it appears that there has been an abuse of discretion, operating to his prejudice in the final determination of the case, a new trial will be granted.</p> <p>2. -: evidence: instructions. Where, under the issue made by the pleadings, proof of a material fact devolves on the defendant, and no testimony is offered on either side, it is error for the court to instruct the jury to find for the defendant.</p>

<p>i. Mechanic's Lien. In an action to enforce a mechanic’s lien the relief sought by enforcing the lien does not constitute a separate cause of action.</p> <p>2. Pleading: demurrer : parties. A demurrer for defect of parties defendant will not lie unless it appears on the face of the pleading demurred to that necessary parties defendant are wanting.</p> <p>3. ■-: demurrer: misjoinder. A demurrer for misjoinder of causes of action will lie only where the joinder itself is forbidden, such as uniting a cause of action in tort with one arising upon contract.</p> <p>Judgment: default. The authority to render judgment by default follows from the failure to answer within the time limited by law, and it is sufficient prima facie if it appear in the judgment that the defendant has failed to answer or demur.</p> <p>Attorney Fees. There is no authority to allow attorney fees in actions founded on instruments executed since June 1, 1879.</p>

Error, to the district court for Nemaha county. Tried below before Pound, J. A past consideration or a moral obligation is a sufficient consideration for a promise. 1 Pars, on Cont., 471-2 and note d. Gleason v. Dyke, 22 Pick., 393. Payment of taxes was a moral obligation resting on defendant. Payment by plaintiff was for bis benefit. Pettit v. Black, 8 Neb., 62. Her v. Colson, 8 Neb., 331. Wood v. Helmer, 10 Neb., 65. See also Wells v. Mann, 45 N. Y., 327.

<p>1. County Commissioners: redemption erom tax sale. County commissioners have no control over moneys collected by tbe county treasurer on redemption of lands frdm tax sale. Such funds are required to be held by the treasurer “subject to the order of the purchaser, his agent, or attorney.”</p> <p>2. -. And when money is wrongfully exacted in the nominal redemption of lands, where no -sale was in fact made, to the extent of the taxes and interest actually due, it is a payment; beyond this it is an unauthorized exaction, for which the treasurer but not the county is liable.</p>

Tried below before Pound, J. Evidence shows Blazier made a good tender. Refusal to accept cannot prejudice him. Lytle v. State of Arkansas, 9 How., 314. Patent to Benson passed no title as against possession and- claim of Blazier. Stark v. Starrs', 6 Wall., 402. The right granted under the act of 1869 is analagous to a homestead right and is not assignable. Lawson v. Merrille, 2 Neb., 118. Eraud may be shown. Franklin v. Kelley, 2 Neb., 79. 1 Greenleaf Ev., sec. 284.

Tried there before Weaver, J., upon an indictment against Wells for horse-stealing. Verdict of guilty and that value of horse stolen was $21. Wells moved for a new trial, assigning as one ground of the same that the jury had rendered a verdict under a misapprehension of the legal effect of the same.

50 against the estate of James C. Johnson, deceased. Upon a trial before Post, J., judgment was rendered in favor of plaintiff for the sum of $156.55, and against him for the costs, to reverse which he brought the cause here upon a petition in error.

Heard below before Round, J. The relation of a replevin bond given under our statute to a subsesequent error or appeal bond given in the same case is that of principal to a supplemental obligation; and therefore the replevin bond must pay'the debt to the relief of the appeal bond. Hartioell v. Smith, 15 Ohio St., 200. Parsons v. Briddock, 2 Vernon, 608. Cowan v. Duncan, 1 Meigs, 470. Ploioe v. Frasier, 2 Rob., La., 424. Sayler v. Boss, 15 Ind.,. 130.

Trial below befóte Weaver, J. Parties cannot object to confirmation of sale on ground that title of the property sold is defective. Phillips v. Hawley, 1 Neb., 322. Buekinghamv. Granville Society, 2 Ohio, 361. Question of titlé cannot be litigated on the confirmation of the sale. Herman on Executions, 433. Terrell v. Anchauer, 14 Ohio, 80. Bolgiano v. Cook, 19 Md., 375. Toddv. Dowd’s Heirs, 1 M etc., (Ky.), 281. Voor-Jiees v. Bank, 10 Peters, 469. Me Cleary v. Faber, 6 Penn.

Tried below before Post, J. cited State v. Keim, 8 Neb., 68. Ferley v. County of Muskogon, 32 Mich., 182, and cases cited. Shelton vs. The State, 53 Ind., 331. Commercial Bank v. Hughes, 17 Wend., 94. Laws 1879, sec. 91. General Statutes, 749, sec. 124. The account at the bank was in the name of “York county, Nebraska, by L. J. Gandy, treasurer.” The money deposited was “public money.” The law will not compel payment of individual debts of treasurer out of this money.

, presiding in absence of Post, J. The case was heard here and decided at January term, 1880, but a motion for a rehearing having been made, the opinion was reserved by the court until the filing of the opinion on the motion at the present term.

<p>1. Referee, mew teial. A referee to whom a cause is referred to take testimony, and report to the court upon all the issues of fact and law, has no authority to grant a new trial.</p> <p>2. -. In case the decision of the referee is unsatisfactory, and a new trial is desired, the motion must be made to the court, as directed in the code df civil procedure, sees. 314 to 318, which alone has the power to grant it.</p> <p>3. -. Exceptions to the report, although proper practice in certain cases, as where it fails to cover all the issues submitted, or the conclusion drawn from the facts fo ind is unwarranted,, and the like, cannot supply the place of a motion for a new trial for matters proper to be included therein.</p> <p>4.--. "Where no exception is interposed to an order granting or overruling a motion for a new trial, the result is always deemed to have been satisfactory to the parties at the time, and they cannot afterwards be heard to complain.</p>

<p>S?erformanee: contract tor work and labor. In an action for work and labor, the answer admitted the performance of the same, but alleged that the services were to be rendered gratuitously. Judgment being rendered for the defendant, held, that as the defendant had failed to prove that at least a portion of the services sued for wore to be gratuitous, the judgment must be reversed.</p>

<p>Principal and Agent: contract: conversion: demand. Where, by the terms of a written contract, one P. constituted T. his agent to loan money and take securities for the payment of the same, and expressly provided that the authority could be revoked at the request of P. in writing, Held, that a demand for the securities in writing, signed by a party claiming to be an attorney of P., without an order in writing, or proof of his authority, was not sufficient to authorize P. to maintain an action for the face value of the securities.</p>

Appeal by plaintiff from a decree rendered in the district court for York county, dismissing plaintiff’s suit for the foreclosure of a mortgage: The answer does not set up any defense, consequently the plaintiff is entitled to a decree on the pleadings; it is defective in two essential particulars: 1st, it contains no plea of coverture, and 2d, it admits the execution and delivery of the deed or mortgage, in which case the consideration cannot be enquired into for the…

<p>Error to the district court for Hall county. Tried below before Post, J.</p> <p>cited Stoi’y Prom. Notes, see. 235. Townsend v. Star Wagon Co., 10 Neb., 615. Spies v. Gilmore, 1 Com-stock, 321.</p> <p>cited 1 Parsons Notes and Bills, 427, 567. Smith v. Philbrick, 10 Gray, 252. 1 Daniel Neg.Instr., 510,567. Brents,executor, v. Bank of Metropolis, 1 Pet., 89. Anderson v. Drake, 14 John., 114. Sussex Bank v. Baldwin, 2 Harrison, 487. State Bank v. Hurd, 12 Mass., 172. Meyer v. Hibsher, 47 N. Y., 265. Adams v.~ Sherill, 14 How Pr., 297.</p>

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

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

<p>Costs. 3D. sued M. & H. in the county court for a balance of §154.67. M. & H. answered denying D.’s cause of action and setting up an offset against him amounting to §138. The jury found that there was due from the defendants to the plaintiff upon the cause of action set forth in his hill of particulars, the sum of §198.40, and that there was due from the plaintiff to the defendants upon their set-off the sum of §118.40. That there was therefore found to be due to the plaintiff from the defendants the sum of §75.00. Held, on error, that the plaintiff was not entitled to costs.</p>

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

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

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

<p>Execution: Stay o», waiter ov error. J. L. obtained a judgment of foreclosure, etc., v. .T. G. M. and M. P. M. They within the time limited by statute filed a written request for a stay of execution, which was duly entered. After the expiration of-the stay, an order of sale issued and was placed in the hands of R. W. H., sheriff, for execution. Whereupon J. G. M. commenced an action, and.obtained an injunction against J. L. and R. W., sheriff, setting up usury in the note and mortgage, and that he was hindered by excusable mistake, unavoidable accident, etc., from making said defense to the original suit. Held, on error to this court, that by taking the stay, J. G. M. waived any error in the proceedings, and was estopped to attack such judgment in any way.</p>

<p>■Garnishment. Defendant in error was the assignee of a note and chattel mortgage, executed by G-. P. H., and J. H., his wife, mortgage on household goods claimed by J. H. Edward Ainscow, husband of defendant in error, acting for her, together with G-. P. H., took-the goods to plaintiff in error, who was an auctioneer, who agreed to sell the goods on the chattel mortr gage and pay the proceeds, less 10 per cent commission, to defendant in error. While the sale was progressing plaintiff in error was served with process of garnishment as a debtor of Sr. P. H. He did not notify defendant in error of such proceedings, and made his answer and disclosure therein without revealing on whose account he received the goods, nor that defendant in error was the owner of the chattel mortgage, nor that J. H. claimed to own the goods. The justice ordered him to pay the proceeds of said goods into court, which he did upon receiving a bond of indemnity from one of the garnishing creditors. On suit by defendant in error for the proceeds of said goods, Held, that said order and payment thereon by the plaintiff in error constituted no defense to such action.</p>

This was an application for an injunction brought in the district court for Richardson county. The petition alleges that defendant Horner had recovered a judgment against one Findley, and caused an execution, issued thereon, to be levied upon the property in controversy as the property of Findley.

<p>1. County Bonds: sale oe by commissioneks : change oe bid. The respondents advertised for the sale of county bonds under one of two plans; one plan being for their delivery on the first day of January, 1881, with payment for the whole amount to be then made; the other for their delivery and payment of bid in installments. Among the bids received for the bonds was one by the relator according to the first plan, and one by Ezra Millard according to the second plan. Of these two bids, the commissioners considered that of Millard the best, but they permitted the relator subsequently to modify his bid so as to make it preferable in their estimation to Millard’s, and thus changed, formally accepted it. Held, That such modification and acceptance were without authority of law, and void.</p> <p>2. -. While the commissioners have power to accept or reject such bids, they have no power to permit one to be privately amended so as to make it better than another, or to render it acceptable to them.</p>

<p>Error to the district court for Butler county. Tried below before Post, J.</p> <p>cited 11 Central Law Journal, 203. Glark o. Sisson, 22 N. Y.,,312. Tyler on Usury, 421. Philo v. Butterfield, 3 Neb., 259. Cheney v. White, 5 Neb., 261. Cheney v. Eberhardt, 8 Neb., 423.</p> <p>cited Palmer v. Call, U. S. Circuit Court of Iowa, Opinion by Judge Love. Tyler on Usury, 103,156,172. Condit v. Baldwin, 21 N. Y., 219. Dragnet v. Wigley, 11 East, 43. Solastie v. Mellville, 7 Barn & Cress, 427. Coster v. Del-wink, 8 Cowen, 299. Smith v. Marine, 21 N. Y., 219. Bell v. Day, 32 N. Y., "165. Baxter v. Buck, 10 Yt.; 548. 16 N. J. Eq., 537. 44 Iowa, 32. 45 Iowa, 46, and the result summed up in 17 Albany Law Journal, 119.</p>

<p>Chattel Mortgage. Where the statute provides that a chattel mortgage shall be void “as against the creditors of the mortgagee” unless the mortgage or a true copy thereof shall be filed and recorded as directed by law, and the mortgagor dies in possession of the property, leaving an insolvent estate, Held, 1. That under the law in force in 1875, a chattel mortgage must be acknowledged to entitle it to ho recorded. 2. That the mortgage being void as to creditors, the mortgaged property became assets in the hands of the executor for the payment of debts of the estate.</p>

Tried below before Post, J., Action of replevin by Hamilton County Bank against George W. Jordan to recover property on which it claimed title by virtue of a chattel mortgage from Rule and others. Defense: title by prior mortgage on same property. Judgment below for plaintiff, to reverse -which Jordan, the defendant, brought the cause here. Jordan having prior lien, the only right of the Bank was to redeem. Miller v. Finn, 1 Neb., 301. Renard v. Brown, 7 Id., 454.

Tried below before Weaver, J. If the note is regular commercial negotiable paper, fraudulent representations made to obtain it will not vitiate in the hands of a bona fide purchaser before due for value. Edwards on promissory notes, p. 325. Davis v. Bartlett et al., 12 Ohio State, 537. Wortendyhe v Meehan, 9 Neb., 229.

<p>1. Taxes: constitutional law. Where a road tax levied in in 1876 without regard to valuation, at the rate of four dollars per quarter section was added to taxes for which lands were sold, held, That said tax, being illegal, avoided the tax deed.</p> <p>2. -: ILLEGAL SALE l OWNER NOT LIABLE EOR EXPENSES. Where a sale of land for taxes is illegal, the owner of the land is not liable for the expenses inaurred by the tax purchaser in serving notice on occupants or owners of the land of his intention to obtain a deed, nor for the expenses of procuring the deed.</p>

<p>Appeal by defendant from a decree of the district court for Butler county. Tried below before Post, J.</p>

Heard before Post, J., on demurrer to petition. Demurrer overruled and defendant Simmons electing to stand thereon, judgment -was rendered against him, to review which he brought the cause up on a petition in error. Contract is void, and the court will not lend its aid to its- enforcement by decreeing specific performance or otherwise. Nor can value of labor under said illegal contract be recovered. Clark v. O. S. W. R. Ii., 5 Neb., 314. . 1 Story on Con., § 769.

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

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

<p>Liquor Law of 1881. Under tlie law of 1881 [Comp. Stat., 333], the traffic in liquors within the limits of cities and villages can only bo carried on under ordinances duly passed by the corporate authorities thereof. Until this is done, no application can be made and no other step taken towards the procurement of a license to sell liquors within the limits of such corporation.</p>

<p>Motion to quasb" bill of exceptions.</p>

<p>1. Forcible Entry and Detention. An action of forcible entry and detention is not the proper remedy to try questions of title, but merely the right of possession.</p> <p>2. Bill of Exceptions. The provision of section 811 of the code [Oomp. Stat., 571] relative to bills of exceptions do not apply to justices of the peace.</p> <p>3. Motion for ISTew Trial. A motion for a new trial is unnecessary in cases brought to the district court on error from the justice of the peace, where no re-trial of the issues of fact is to be had.</p>

<p>1. Criminal Law: appeal. The'right of appeal under section 324 of the criminal code is restricted to the defendant, and does not apply to a complainant against whom a judgment for costs has been rendered.</p> <p>2. -: costs. Where a jury found that the complaint was without probable cause, and judgment for costs was thereupon rendered against the complainant, and he was committed to jail until the same was-paid, Held, first, that a complainant could not be imprisoned for costs ; second, that costs in such ease was a mere civil liability.</p>

<p>1. Trespass on Uninelosed, Uncultivated Lands. 'While the owner of domestic animals may lawfully permit them to wander upon and depasture the uninclosed, uncultivated lands ■ of others, he has no right to drive them there without the owner’s permission, and if he do so he is answerable for whatever damage they may do while there.</p> <p>2. Error without Prejudice. Where a letter-press copy of a writing is erroneously admitted in evidence, if without it the undisputed evidence is ample to support the verdict, it is error ■ without prejudice, and not a sufficient ground for the reversal of a judgment.</p>

<p>Criminal Law: instruction to jury. An instruction in a trial for malicious shooting, that “the law requires something more than occasional oddity or hypochondria to exempt the perpetrator of an offense from its punishment,” is not erroneous.</p>

<p>1. Criminal Law: Evidence. On the trial of one B. for receiving stolen goods, the statute making the receiving of such goods of the value of $35.00 and upwards a felony, held that it devolved on the state to prove by competent testimony that the value of such goods was at least $35.00.</p> <p>2. - — : — —: Competency of witnesses. A witness before he is competent to testify as to the value of property must show by his testimony that he has knowledge of the value of such property.</p>

, and without having complied with the provisions of that act. Upon a plea of not guilty there was a trial before Savage, J., and a jury. The state gave evidence tending to show that spirituous and malt liquors were sold by- tbe plaintiff in error, in tbe city of Ornaba, on tbe twenty-second day of June 1881; and that he had not procured a license therefor from tbe city, pursuant to said act.

<p>Error to the district court for Cass county. Tried below before Pound, J.</p> <p>No brief on file.</p> <p>cited 1 Greenleaf on Evidence, 158. State v. Wilson, 24 Kan., 189. Hill’s case, 2 Gratt., 607. Dunn v. State, 3 Pike, 229: Moore v. State, 12 Ala., 764. Starkey v. People, 17 111., 17. Brookfield v. State, 1 Sneed, 215. Robbins v. State, 8 O. S., 138, 163. Kilpatrick v. Comm., 7 Casey, 199. Young v. Comm., 6 Bush, Ky., 313.</p>

<p>Negotiable Instruments: conditional acceptance. An order read as follows : “ John H Erck, Esq., Omaha, Nebraska : Sir — Please paj’ to Geo. A. Hoagland or order, six hundred and thirty-five dollars, out of amount due mo on contract for the erection of your store building, when duo,” which was accepted. Held, Pirst, a conditional order. Second, that no recovery could he had thereon unless the acceptor was then or thereafter indebted to Randall, he having failed to complete the building.</p>

Tried below before Pound, J. The omitted recital in the deed is not one of a jurisdictional fact, and tbe instrument is prima fade valid. Maxwell, Ch. J., dissenting in Haller v. Blaco, 10 Neb., 36. Scott v. Pleasants, 21 Ark., 370. Hurlbut v. Dyer, 36 Iowa; 474. Bowman v. Cockrell, 6 Hans., 311. Bibridge v. Kuehl, 27 Iowa, 160. cited Haller v. Blaco, 10 Neb., 36. Moore v. Brown, 11 How., 414. Cooley on Taxation, 338. Lain v. Cooks, 15 Wis., 446.

Trial before Barnes, J., and a jury? with verdict and judgment against tbe railroad for $892.11. cited Tufts v. Gify of Charleston, 4 Gray, 539. Bobb v. Maysville, '3 Met. (Ky.), 117. Penn. B. B. v. Bushnell, 81 Penn. State, 144. ' Central Pacific v. Pearson, 35 Cal., 347. Wagner o. Cage County, 3 Neb., 237. Todd v. Kankakee, 78 111., 530. Shepley v. Baltimore R. R., 34 Mcl., 33G. Saint Paul R. R. v. Matthews, 16 Minn., 341. Lyon and wife v. G. B. M. R. R., 42 Wis., 538.

<p>1. Railroad: kiqi-it or wat : damages. Damages incident to the tailing of land for right of way for a railroad, and for which compensation must be made to the owner, independently of the portion actually appropriated, are the result of facts and circumstances susceptible of proof, and they must bo proved before the damages are allowed.</p> <p>2. Railroad Companies Required to Fence Track. By the law of this state railroad companies are required to fence their track against stock running at large, and failing to do so, are liable to^the owner of any that may be killed or injured in consequence of the omission.</p> <p>ÍS. Track Crossings. And when requested by the owner of land crossed by the road, the company are required to make and keep in good repair an adequate means of crossing the track.</p>

<p>Hight of "Way: damages. Case examined and found to fall within the rules expressed in the case of this plantiff in error v. Whalen, ante 585. For want of testimony to warrant the verdict and for erroneous instructions to the jury, judgment reversed.</p>

<p>Error to the district court for Antelope county. Tried below before Barnes, J.</p> <p>cited Carr ere v. Stafford, 46 How. Pr., 294. Richter v. Poppenhausen, 42 N. Y., 373. Higgins v. Freeman, 2 Duer., 650. Dubois Case, 3 Abb. Pr., 177. Voorhis v. Childs Ex., 17 N. Y., 354.</p> <p>cited Carr v. Catlin, 13 Kans., 394. Sumner v Powell, 2 Mer., 37. Camp v. Grant, 21 Conn., 41. .</p>

The action there was to compel the specific performance of a contract for the sale of real estate situated in Genoa, Nance county.

Tried below before Gaslin, J. Grantor having final receiver’s receipt can make a valid mortgage. 5 Neb., 261. Mortgagee’s mortgage conveys no interest in realty. 2 Wash., 114. 17 Wis., 212. 9 Cal., 426. 36 New York, 44. Assignment of patent conveys no title. 10 Kan., 85. Assignment of contract of public lands is no conveyance of fee. 49 Cal., 398. 12 Win., 644. 35 Mich., 100. 28 Tex., 150.