Volume 12 — Nebraska Reports

<p>Action for Death. An action for causing the death of a human being must be brought by the personal representatives of the deceased.</p>

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

<p>1. Bridges on county lines. On application for a mandamus to compel the county commissioners of Buffalo and Kearney counties to repair the biidge across the Platte river between said counties south of Kearney city, Held, That the bridge being constructed by Buffalo county alone, Kearney county could not be compelled to aid in keeping it in repair.</p> <p>2. -: discretion of county commissioners. Where there are not sufficient funds in the county treasury to repair all the bridges in a county, the court will not control the discretion of county commissioners as to what bridges they shall repair, unless there is a clear abuse of the trust.</p>

<p>Fraud. One Leach, purchased eighty acres of land from one Wallis, an agent of Lomison, for the sum of $680.00, $340.00 being paid in cash, and a note and mortgage being made for the residue. The mortgage was not recorded. Leach sold and conveyed to one Gilmore, subject to the mortgage. Gilmore commenced an action by attachment for taxes paid by him on the land. This attachment was levied on the note and mortgage in question, which were sold 'to Leach for the sum of $26.00 ; Iield, That the transaction was fraudulent and did not divest the title of Lomison to the note and mortgage.</p>

<p>Error to the district court of Lancaster county. Tried below, before Round, J. The case is cited in the opinion.</p> <p>cited Hibbard v. Weil dKahn, 5 Neb., 41. Shellenbarger v. Biser, 5Neb., 195. ‘ Code, sec. 38. Seager v. Burns, 4 Minn., 141. Daily v. Litchfield, 10 Mich., 29. Agardv. Valencia, 39 Cal., 292. Crosby v. Davis, 9 Iowa, 98.</p> <p>cited Kegg v. The State, 10 Ohio, 75 and note. Patton v. Sheriff, 2 Ohio, 395. Shuee v. Ferguson, 3 Ohio, 136. Benhcwn v. Corwin, 2 Ohio State, 36-43. Kellogg v. Griffin, 17 Johns, N. Y., 273. Dickman v. Cook, 17 Johns, N. Y., 332. Rickards v. Cunningham, 10 Neb., 417.</p>

Tried-below before Pound, J. The opinion states the case. Assignment cannot be vacated by the defendants by showing that there was fraud or misrepresentation on the part of the debtor in the creation of the debt. Horwitz v. Ellinger, 31 Md., 492. Matlison v. Damerest, 4 Robt., 161. Pearce v. Jackson, 2 R. I., 35. Reinhardt v. Blc. of Ky., 6 B. Mon., 252. Kennedy v. Thorpe, 51 N. Y., 174. S. C. 2nd Daily 258, 3 Abb. Pr. N. S. 131. Waverly Bank v. Halsey, 57 Barb., 249.

<p>1. Equity Pleading. When a petition in equity, filed hy ,judgment creditors of the defendant to subject his “interest” in certain real estate to the payment of the judgment, fails to show tliat such interest is merely eqitable, or so clouded by apparent but really fraudulent and unreal claims, as would render the title of a purchaser at execution sale uncertain, no case for equitable cognizance is presented, and the action will be dismissed.</p> <p>2. -: EQUITABLE INTEREST IN LAND COUPLED W.ITH THE actual possession. An equitable interest in land, coupled with the actual possession, may be reached by a seizure and sale milder an ordinary execution at law.</p>

<p>Void County Warrants : consideration, yiie plaintiff bought of the defendants what she supposed were, and what purported to be, the warrants of York county, but which having boon issued by the county commissioners of that county, without authority of law, wore void and of no value. Action to recover the price paid. Held, That tho pretended warrants were not a valid consideration for the money paid therefor, and that the plaintiff was entitled to recover it back.</p>

This was an original application for a mandamus to •compel the respondent, as county treasurer of Emmas county, to pay a registered warrant of that county for the year 1879, without preferring the warrants of 1880 to the warrants of 1879, previously registered, in disbursing the revenue of the year 1880, collected by him. contended that warrants must be paid in the order of registration, without regard to the year in which the levy is made. Comp. Stat., Chap. 93.

. Tried below before Post, J. The action was originally brought by Kilmer against I. D. Neihardt and C. J. Neihardt for the conversion of a corn planter, corn cultivator and a ■cow, which the latter had levied upon and sold as sheriff and deputy sheriff to satisfy an execution issued on a judgment against Kilmer. The execution sale took place on the 27th of December, 1875.

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

Plaintiff filed a claim for medical services, etc., in the county court, against the estate of McWhirter, amounting to $459.00. The county court having allowed $35.00, Martin appealed, and on trial in the district court, before Post, J., and a jury, obtained a verdict and judgment for the same sum only, and thereupon brought the cause here for a review on a petition in error. Plaintiff was a competent witness. Anthony v.- Stinson, 4 Kan., 220. Book of account was admissible.

Tried below before Gaslin, J. The opinion states the case. Mortgage was void. Place of sale should have been Kearney county. Gen. Stat., 482. Powers had a right to purchase the horse before mortgage was placed on file. Travis v. Bishop, 18 Met., 304. Fuller v, Paige, 26 111., 358. Mayham v. Coombs, 14 Ohio, 428. Herman on Chattel Mortgages, 307, Pierce Brothers must bear the loss, Smith v. Worman, 19 Ohio State, 145.

<p>Error to the district court for' Otoe county. Tried in district court before Pound, J. The opinion states the case.</p>

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

Eeror to the district court for Hamilton county. Tried below, before Post, J. The facts of the case are stated in the opinion.

Tried below before Gaslin, J. The case is stated in the opinion. Indictment is insufficient. 1 Bishop on Criminal Law, sec. 429. Demurrer to plea in abatement should have been overruled. Demurrer admits ■ facts set up in plea, and indictment ought to have been set aside. Manslaughter is not a degree of the crime of murder, but is a separate and distinct statutory offense, and as such is not within sec. 487 of the criminal code of Nebraska. Comp. Stat., 737.

<p>Error to the district court for Richardson county. Tried below, before Weaver, J. The facts appear in the ■opinion.</p> <p>cited: Brookover v. Esterly, 12 Kansas, 149. Wolfley v. Rising, 12 Kansas, 635. Duebner v. Koeboke, 42 Wis., 319. Tannahill v. Tuttle, 3 Mich., 111. Eggleston v. Munclay, 4 Mich,, 295 — 304. Robinsonr-. Fitch, 26 Ohio St., 659, 1 Parsons Contracts 571, note. Faulkner v. Meyers, 6 Neb., 418. Orchard v. Rackstrazu, 9 Com. B., 698. Grinnell v. Cook, 3 Hill, 485. Ingalbee v. Wood, 33 N. Y., 578. Lewis v. Tyler, 23 Cal., 364. Willis v. Barrister, 36 Vt., 220. Gooclnich v. Willard, 7 Gray, 183. Perkins v. Boardman, 14 Gray, 481. Brackett v. Bzdlard, 12 Met., 308. Cardinal v. Edzoa/rds, 5 Nev., 86. Legg v. Willard, 17 Pick., 140.</p>

Tried below, in 1878, before Valentine, J., of the sixth district. The opinion states the ease. Promise is void, not being in writing. Gen., Stat., 393. [Comp. Stat., Chap. 32.] Deposition of Elliott was inadmissible. And see also Second National Bank v. ■Grand Lodge, 8 Otto, 123. cited: Nelson v. Boynton, 3 Met., 402. Shelton v. Brewster, 8 Johnson, 376. 2 Parson Contracts, 9.

<p>Motion to dismiss appeal.</p>

<p>Appeal by defendant from a decree of tbe district court, of Hamilton county, Post, J., presiding.</p>

Tried below, before Savage, J, The action was to recover the value of a cow owned by Wendt, and killed by cars of the railroad in Omaha. cited Saint Louis-Ii. R. v. Linder, 39 111., 433. Railroad v. Parker, 29 Ind., 471. G. d M. R. R. v. Patehin, 16 111., 198. R. R. Co. v. Phelps, 29 111., 447. Vandergrift v. Rediker, 2 Zab., (N. L) 185. C. é N. W. R. R. v. Goss, 17 Wis., 428. St-ucks v. M. d- R. R., 9 Wis., 213. dark v. S. d U. R. R., 11 Barb., 112.

contended that plaintiff was entitled to a jury trial; Mills v. Miller, 3 Neb., 94; Lamaster v. Scofield, 5 Neb., 148;-that section 13, of act relative to practice in county courts (referred to in opinion,) was unconstitutional. White v. City of Lincoln, 5 Neb., 505. St. Paul é Sioiow City B. B. v. Gardner, 19 Minn., 132., Norval v. Bice,. 2 Wis., 22,

Appeal by defendants from a decree rendered in the district court, by Pound, L, confirming the report of. S. L Tuttle, referee, and * perpetually enjoining the defendant treasurer from executing a tax deed to certain property of plaintiffs, etc. 1. Only one assessor’s oath is required. Sec. 12, Chap. 66, Gen. Stat., 2. The board had power to raise assessment 20 per cent. Dundy v. Richardson County, 8 Neb., 516.

Tried below, before Post, J. The case came here in 1879, and is reported 8 Neb., 344. Yerdict and judgment in favor of plaintiff Huffman. 1. Bond admitted in evidence is not identical with that set out in petition. The variance is fatal. 1 Green-leaf Ev., sec’s 66, 58 and 66. 2 Id., sec’s 11 and 160. . 2. Bond is void because it differs from the statutory requirements in several respects. Gen. Stat., 99. Sex-son v. Kelley, 3 Neb., 104. Cutler v. Roberts, 7 Neb., 13. Silvcrv.

Appeal by plaintiff from Cuming county. Heard ■ below, before Barnes, J., and petition dismissed. The case is stated in the opinion. 1. The decision in 10 Neb., 172, is conclusive so far as the allegations against Sonnenschein are concerned. 2. As to averments against Drahos and Sonnenschein .charging fraud, etc,, see Kueh v. Sandford, 1 Leading Cases, 48.

Tried below, before Weaver, J., and a jury. The action was in replevin by Allen against Shroaf, to recover possession of a sow. The 'answer interposed was a general -denial, under which Shroaf as a defense claimed to have a lien on the animal under the herd law. Verdict and judgment for Allen.

<p>Practice: default: judgment. At the June term of the district court the petition of plaintiff was stricken from the files with leave to verify and refile the same within a given time. After that^ime had elapsed and the petition not being filed, B., the attorney of defendant, informed him of such fact, and that he need give the case no farther attention until advised hy him, said attorney. At the December term following, B., another attorney, made a voluntary and unauthorized appearance on behalf of said defendant, and moved to dismiss said canse for want of a petition on file. The court denied said motion and allowed plaintiff to refile his petition instanter, and gave the defendant sixty days in which to answer. B. knew of the appearance and motion of L., and supposing that defendant had substituted L. as his- attorney, gave the case no further attention, and defendant had no notice of such proceedings. At the March term following the plaintiff having complied with the order of December, the cause was, tried in the absence of defendant or an answer, and judgment for the plaintiff. At the same term defendant moved for a new trial, to be let in to defend and showed cause; motion denied. Held error, and new trial awarded with leave to defendant to answer.</p>

Tried below before Pound, J. The opinion states the ease. 1. The attachment can only operate upon the rights of Bunn existing when it was made. The purpose of an attachment is simply to secure to the creditor the property which the debtor had at the time it -was made so that it may be sold to satisfy the debt after judgment is obtained. If Bunn had no right to or interest in the land at the time, then Gross acquired none by his attachment.

Tried below before Weaver, J. The facts appear in the opinion. 1. The district court erred in dismissing the case.. Wortenclyke v. Meehan, 9 Neb,, 221. Savings Bank v, Scott, 10 Neb., 83. 2. Possession of a negotiable instrument is prima facie evidence that the holder is the proper owner and lawful possessor of the same, and the burden of proof is on the opposite party to show the contrary. Collins v. Gilbert, 4 Otto, 753.

Tried below before Post, J. The opinion states the case. 1. Having received a deed to tbe land from the plaintiff in error, tbe defendants are estopped to assert that she bad no title to convey in order to defeat a recovery on said note given for tbe purchase price of said lands. Finclley v. Horner, 9 Neb., 537. Walker v. Sedgwick, 8 Cal., 398. Bigelow on Estoppel, 1st. ed. 414, 415. 2. The court should have given plaintiff judgment on tbe note. McNeady v. Hyde, 47 Cal., 481.

<p>1. Contracts : action. ' One T. raised a crop of wheat on shares on the land óf P., the contract being- that P. was to have one-half of the wheat and pay one-half of the threshing. T. procured the threshing- to be done, paid one-half of the same and g-ave Ills note for the remainder, which was paid before the trial. Before the note was paid T. brought suit against P. for one-lialf of the threshing. Held, That as T. was liable for the threshing he could maintain the action.</p> <p>2. Counter-claim. An answer setting up a counter-claim must state facts, not mere conclusions of law.</p>

<p>1. Trial of Appeals in District Court. When an appeal is taken from the county court to the district court, the case is to be tried in the appellate court upon the issues that were presented in the court from which the appeal is taken.</p> <p>2. Error: conflicting testibiony. Where there is a direct conflict in the testimony, and the only question presented is the ■credibility of witnesses, the verdict will not be disturbed.</p>

<p>Error to the district court for Knox county. Tried below, before Barnes, J. The- facts appear in the opinion,</p> <p>cited Revised Codes of Dakota, (Civil Code) §§ 1654, 1659, 1688, 1895. Smith v. Damn, 6 Hill, (N, Y.) 543. Union Bank v. Custer Executors, 3 New York, 203. Douglass v. Howland, 24 Wendell, 35. Whitney v. Groot, 24 Id., 82. Allen v. Bightmere, 20 Johns, 365. Horsen v. Pike, 16 Ind., 140. -McNaughton v. Conklin, 9 Wis., 9. 1 Parsons on Contracts, 478, (note i). Id., 14, (note e). Parsons Mercantile Law, 67.</p> <p>1. The petition should have contained an itemized statement or copy of bill of goods furnished Eldridge. Maxwell’s Pleading and Practice, pp. 175-6.</p> <p>2. The petition should have contained a general averment of notice of acceptance of the guaranty. See Centred Savings Bank v. Shrine, 48 Mo., 456. Lawrence v. McColmount, 2 How., 426. Louisville Mcvnf’g Go. v. Welch, 10 How., 461. 2 Parsons on Contracts, (sixth edition) p. 13. Smith v. Anthony, 5 Mo., 504. Douglas v. Reynolds, 7 Pet., 113. Russell v. Clark, 7 Craneh, 69. Edmonson v. Drake, 5 Pet. 624. Lee v. Dick, 10 Pet., 482. Tuckerman v. French, 7 Me., 115. Bradley v. Carey, 8 Me., 234. Craft v. Isham, 13 Conn., 28. Oajces v. Weller, 13 Yt., 106. Lowry v. Adams, 22 Yt., 166. Babcock v. Bryant, 12 Pick., 133. Mussey v. Rayner, 22 Pick., 223.</p>

Tried below before Post, J. The case is stated in the opinion.' 1. Title passes without acknowledgment. Burbank v. Ellis, 7 Neb., 164. 2.

Tried below before Weaver, J. The bill of exceptions consists of an agreed statement of facts, as follows : It is agreed by the parties that by an order of attach- ■ ment in favor of John Koskis and against Thomas L, Noakes, that under said attachment personal property was seized as the property of Thomas Noakes.

<p>1. Bill of Exceptions. A referee has authority to sign a bill of exceptions which may contain all the evidence taken by him, but to be available where objection is made that the finding is not supported by the evidence, his certificate must show that the bill contains all the evidence.</p> <p>2. -. Such bill of exceptions is not to be signed by the judge, and is not subject to the provisions of section 311 of the code, for settling bills of exceptions. '</p>

<p>■Construction of Drains. Drains or levees for the reclamation of wet or overflowed lands can he constructed across tho lands of others, and the cost assessed thereon, except by consent, only in cases where the public welfare will be subserved.</p>

<p>Application for rehearing of the case, ante p. 19.</p>

Original application for mandamus. An alternative writ was issued at July Term 1880, and upon a hearing thereof, with return of respondent, and -report of referree appointed to take testimony, a peremptory writ was-awarded.

<p>1. Partnersliip Name : "CSE of. One member of a partnership has no right to give a promissory note in settlement of his individual debt, unless duly authorized by his co-partner, or it is afterwards ratified by him.</p> <p>2. -. Evidence reviewed and held to be inadequate to prove either assent or ratification.</p> <p>3. Instructions to Jury. When, in consequence of a mis-statement of the pleadings, an instruction has a tendency to confuse or mislead the jury, it is good ground for a new trial.</p>

. This was an action, brought in the district court for Franklin county, to enjoin the defendants, county commissioners and county clerk, from issuing $80,000.00 of bonds voted to aid in the construction of the Republican Valley Railroad Company. The bonds were voted in ■June, 1878, The assessed value of taxable property for that year was $802,000.00.

This was an action in district court for Lancaster' county, for the foreclosure of a mortgage, given by defendants to secure a note of $1,000, payable to Henry Atkins, and by him assigned to plaintiff. Defense — usury, and the court, Pound, L, presiding, so found. Decree for plaintiff for $536.65, and judgment against her for costs. She appeals.

Tried below, before Weaver, J. The facts Eippear in the opinion. ' 1. A man cannot stand by and see his property sold under an execution against another without opposition,, and then claim the property. Danmielv. Gorham, 6 Cal., 44. Bond v. Ward, 7 Mass., 123. Taylor v. Seymoivr, 6 Cal., 512. Vose v. Stickney, 8 Minn., 79. Wellington r. Sedgwick, 12 Cal., 476. Killey v, Scannell, 12 Cal., 73. Dunlap v. Berry, 5 111., 327. Lewis v. Whittmore, 5 N. H., 577. 2.

Heard below before Barnes, J,, on demurrer to petition. Demurrer sustained and action dismissed. 1. The action was rightfully brought in name of treasurer. Gen. Stat., 912, See. 87. Laws 1879, 311, Sec. 89. In the collection of these taxes under the warrant issued to him he has assumed an express trust, and as trustee-of such trust may maintain the action. Civil code, Sec'.-30. Regents v. McConnell, 5 Neb., 423. 2.

<p>3. Summons in county court. It is sufficient in a summons issued by a county judge, to describe the plaintiff’s cause of action in general terms. Summons held sufficient.</p> <p>2. -: motion to quash : judgment. Where a defendant filed a motion to quash a summons, which was overruled, and he refused to appear further in the action, held, That judgment against him without showing an entry of a default, would not be disturbed.</p>

<p>I. Bill of Exceptions. It is the duty of the adverse party, upon receiving a hill of exceptions, to propose amendments thereto,. and return sucli bill with his proposed amendments within the time limited by statute to the party proposing the bill.</p> <p>2. -. A judgment was rendered in February, 1880. Court adjourned sine die on the 21st day of March thereafter, forty days having been given to reduce the exceptions to writing. The bill was prepared and submitted to the attorney for the adverse party, on the 24th day of April, who permitted it to remain in his office until the 7th day of June, but proposed no material amendment'there t o. On the 8 th day of June the bill was presented to the judge, who afterwards signed the same. Held, That the bill would not be quashed on the motion of the attorney for the adverse party, because not signed within the time limited by statute.</p>

<p>Application for leave to file a motion for a rehearing, in the ease reported 11 Neb., 328.</p>

<p>1. Practice in Supreme Court: divorce: error. A decree of divorce and alimony was rendered November 18tlr, 1880, and a transcript of tho proceedings and a petition in error filed in the supreme court July 27th, 1881, no motion for a new trial having been filed in the court below. Meld (more than six months having1 elapsed since the rendition of the decree,) that none of the errors assigned in the proceedings of the court could be considered. In such case, the sole question presented is the sufficiency of the petition to sustain the judgment.</p> <p>2. --: appeal. An appeal in equity causes will lie to the supreme court from a final order or judgment of the district court, in which case no motion for a new trial is necessary. But if an equity cause is taken on error to the supreme court, the same procedure must be had as in an action at law.</p> <p>3. Alimony. A decree, declaring alimony alien upon real estate, reversed.</p>

<p>False representations. In an action for false representations as to the quality of certain Kansas lands, exchanged for property in the city of Lincoln, at §1,500.00, it appearing that the lands were nearly worthless, a judgment for §500.00 damages was sustained.</p>

Tried below before Post, J. The opinion states the case, 1. The set-off should have been allowed. Code, sec. 103. Pomeroy on'Remedies, 752, and note. Parsons v. Nash, 8 How. Pr., 454., Stevens v. Able, 15 Kan., 584. 2.

Tried below, before Post, J. The opinion states the facts of the case. cited Story’s Equity, Sec. 761. Edwards v. Fry, 9 Kan., 422. Holcomb v. Dowell, 15 Kan., 882. Kirk v. Hamilton, 102 U. S., 68. General denial was. sufficient to admit evidence offered, 2 Nash. PI. & Pr.,_ 1209, 1210. Wintermute v. Montgomery, 11 Ohio State, 442. Crary v. Goodman, 12 N. Y., 266. Richardson v. Steele, 9 Neb., 488.

Tried helow, before Post, J. The opinion states the case. The plaintiff is entitled, not simply to such sum as the property would bring at forced sale, hut to such a sum as the property is worth in the market, to persons generally, if those desiring to purchase were found who were willing to pay a just and full value for his property. Patterson v. Boom Co, 3 Dill., 465. Lawrence v. Boston, 119 Mass., 126. Somerville R. R. v. Doughty, 22 N. J. L., 495.

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

<p>Compiled Statutes: statutes construed. In sec. 2 of the act providing for a compilation of the statutes of this state, approved February 26th, 1881, is a provision: “That the said Guy A. Brown” (the compiler), “shall furnish to the state of Nebraska, all copies of said statutes which may be required by the state at a price not to exceed two dollars and fifty cents per copy. * « ® * Said statutes to be published on or before July 1st, 1881.” Afterwards, in the general appropriation act of the same session, in designating one of the objects provided for, this language was used, viz: “For the purchase of 3,500 copies of the statutes published under the provisions of an act to provide for the publication of a compilation of the statutes, the same to be distributed ' by the secretary.of state to the same officers that the general statutes of 1873 were distributed, $8,750.00.” Held, that under these provisions the compiler was authorized to deliver at once, and demand payment for 3,500 copies, without reference to whether that many were required by the present necessities of the state or not; the last of the above provisions containing a legislative designation of the number to be furnished.</p>

<p>1. Replevin. Action by D. to recover a quantity of corn, which, he had grown upon a tract of land held by him as a homestead, under the law of the United States, and for which he held the usual receipt of the receiver of the local land office. K., the defendant in the action, was also a claimant of the land as a preemptor, but his claim had been rejected by the register and receiver, from whose decision he had taken an appeal, which was. still pending before the Secretary of the Interior. Both were in possession, each of a xiortion of the land. When the corn was ripe, and during a temporary absence of D., and without his consent, K. harvested and claimed the corn as his own. Yer-dict and judgment for D. sustained.</p> <p>2. Receiver’s Receipt. The usual duplicate receipt of the receiver of a land office is proof of title against all hut tlio holder of a patent.</p> <p>3. Register and Receiver. The rulings of tlio register and receiver as to the rights of respectivo claimants to lands under the laws of the United States cannot ho questioned collaterally.</p>

Heard below, on demurrer to the petition, by Post, J., Demurrer sustained and cause dismissed. The action is not for money loaned, but for money “paid,” and it is not necessary to state that the indebtedness was lawfully incurred. Maxwells PI. & Pr., 152, 153. 1 Nash PL & Pr., 151, and cases cited. cited The People, exrel. Hunter v. Peters, 4 Neb., 255, School District v. Stough, Id,, 357. Merrick County v. Batty, 10 Neb., 176.

Heard ■below before Post, J., on demurrer by Seehler & Brother-ton to petition of Stark, plaintiff there. Demurrer overruled, and judgment in favor of Stark for amount ■claimed.

The •action there was brought by Gerrard and Whitmoyer. The ■cause was sent to a referee who reported the following facts: First. That in the year 1873, the Burlington and Missouri River Railroad Company were the owners of certain ■lands in Platte county, Nebraska, subject to taxation, which were omitted from the tax rolls for said year 1873. Second.

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

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

Tried below, before Pound, L The opinion states the case. cited Burley v. The State, 1 Neb., S96. Preuitv. State, 5 Neb., 375. Mc-Elvoy v. State, 9 Neb., 157. Clark v. Saline County, 9 Neb., 516. 1. The plea in abatement does not state that sec. 66á was not complied with; it only claims the county commissioners did not select the names, as required by law.

Heard below on demurrer to the petition, by Weaver, J. Demurrer sustained and cause dismissed.

The action was brought by Tilford for damage done to his crops by cattle of Keith and Barton. On trial in district court, before G-aslin, J., and a jury,'he obtained a verdict and judgment for $100 and costs, to reverse which Keith and Barton came here upon a petition in error. cited Hwford v. Omaha, 4 Neb., 350. Dudley v. Mayheio, 3 N. Y., 9, Cole v. Muscatine, 14 Iowa, 296. Johnston v. Louisville, 11 Bush., 527. State, ex rel., v. Marlow, 15 Ohio State, 134.

<p>1. Pleading i action on note. In an action upon a promissory note it is sufficient to allege the making and delivery of the-note, set out a copy of the samo, and allege that there is due •thereon frdin the maker to the plaintiff a specified sum.</p> <p>2. -: --. Under section 129 of the code, where a copy of the instrument sued upon is set out as a part of the petition, it must ho alleged that there is due thereon from the adverse party to the plaintiff a specific Sum, unless these facts may he inferred ’ from others pleaded.</p>

<p>Appeal from Douglas comity. Tried below before Savage, J.</p>

<p>Debtor and Creditor: marshalling assets. Only tlie creditor of a common debtor can compel a creditor having two or more liens, while the plaintiff has but one, to exhaust the fund not-covered by the plaintiff's lien, before resorting to the other.</p>

Appeal fipm the district court of Seward county. The facts are as follows : On the 6th day of October, A. D. 1865, Samuel G. Bingamon made a homestead entry,, under the United States homestead law of 1862, upon the north half of the southeast quarter, and the south half of the northeast quarter of section 19, town 9, range-4 east in Seward county of this state.

<p>Homestead: death op husband: purchase op outstandjt ' notes by wife. One G-., executed certain promissory notes secured by mortgage on his homestead, and soon thereafter died. Iiis widow then purchased the notes with her own funds, took an assignment thereof and filed them as claims against the estate. Held, that in no event in the absence of a showing that the estate was insolvent, would she be compelled to resort to the mortgaged property for the payment of the same.</p>

Tried below before Gaslin, J. The facts, sufficient to an understanding of the point decided here, appear in the opinion.

Tried below, before Savage, J. The opinion states the.case. cited Wharton Crim. Law, sec. 2976, Bacons Abr., Title “Bail,” Commonwealth v. Coleman, 2 Met., (Ky,) 382. The State v. Holmes, 23. Iowa, 458. State v. Newton, 22 Wis., 536. This case does not come within the rule contended for by the plaintiff in error.

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

<p>Application for writ of habeas corpus.</p>

<p>Error to the district court for Madison county. Heard below before Barnes, J, The opinion states the case.</p> <p>cited sec. 129, Civil Code. Swan’s Pleadings, 181. Ohio Life Inswrmce Go. v. Goodwin, 1 Handy, 81. Memphis v. Newton, 2 Handy, 165.</p> <p>cited B. & M.B. B. v. Dick & Son, 7 Neb., 242, Bliss on Code Pleading, sections 282, 233, 306, 307.</p>

<p>Error: vinal order. An. order discharging garnishees is an order affecting a substantial right, in a special proceeding, that may he reviewed on error before final judgment in the action.</p>

<p>Appeal from Lancaster county. Tried below, before Pound, J.</p> <p>cited Cooley on Taxation, 249, 253, 254. B. é M. v. Lancaster County, 4 Neb,, 293. Bite v. Walker, 44 Iowa, 458. State v. Commission■ers, 21 Kan., 434.</p>

<p>Joint Debtors: bevivob of judgment. Judgment was rendered in a county court against A., B., C. and D., a transcript of which was tiled in the district court. The plaintiff having died, on proceedings to revive in favor of his administrators the action was dismissed as to D., and a new judgment rendered against A., B. and C. Held, that the judgment being a joint liability, the revivor must be in that form.</p>

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

<p>Service by Publication in Supreme Court. When a petition in error is filed in the supreme court, and it is necessary to obtain service upon the defendant in error by publication, such publication must bo made four successive weeks in a newspaper published in Lancaster county.</p>

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

<p>1. Attachment: issuing summons. Where the real estate of a debtor is levied upon under an attachment, and an affidavit is filed stating- that he is a non-resident, and service of summons cannot be made upon him in the state, no summons need be issued.</p> <p>2. --: service by publication. Where an attachment is levied upon the real estate of anon-resident, and service of summons is not made upon him, the court possesses no power to render judgment against him and order a sale of his property to satisfy the same, unless publication has been made as required by law, and the notice should contain a description of the property attached.</p> <p>S. Proof of Publication. The publisher of a newspaper, or any one acquainted with the facts, may make proof of publication.</p>

<p>Bill of exceptions on part of State. A prosecuting attorney presenting a bill of exceptions to the supreme court under the provisions of section 483 of the criminal code, must obtain leave of court to file tlie same.</p>

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

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

Tried below before Barnes, J. It was an action in replevin commenced by the present plaintiff in error against the said defendant in error for the recovery of certain personal property.

Tried below before Post, J. The action was brought to enjoin defendants in error from the collection of a judgment which they had obtained against plaintiff in the county court, on the ground that, it was defective in form. Action dismissed. cited Demming v. Weston, 15 Wis., 236. Spriek v. Washington County, 3 Neb., 255. cited Freeman on Judgments, sections 46-55. Van Qeasal v. Hillyard, 1 Houston, 515. Churchy. Crossman, 41 Iowa, 373.

<p>Application for writ of habeas corpus.</p>

The action was brought in that court by Rogers et al., against Bennett et al., to recover the value of eleven -acres of corn, alleged to have been converted by said Bennett et al. to their own use.

This was a bill of exceptions, filed by the district attorney, to take tbe opinion of this court upon points which aro e in the trial below, before G-aslin, J., and ruled in favor of Page,

<p>1. Replevin: damages recoverable on appeal: practice. In an action of replevin properly brought before a justice of the peace and appealed to the district court, if the ends of justice require it, as where by an increase in the value of the property pending the appeal it exceeds the jurisdiction of the lower court, the appellate court, by amendment, may permit an increase of the alleged value, and a recovery may be had accordingly.</p> <p>2. -: -: conversion. Where property has been de- • livered to the plaintiff at the commencement of the action under an order of delivery issued by a justice of the peace, who, on the trial, decides in favor of the defendant, and orders a return, from which an appeal is duly taken to the district court, if between the entry of judgment by the justice and the perfection of the appeal, the defendant take and convert the property under the same claim of right, such conversion may be shown as a means of estimating the damages.</p> <p>3. Married Women. Personal property, the proceeds of money derived by the wife from her father’s estate in 1854, in the state of New "York, and which she and her husband, in good faith, have at all times treated and regarded as exclusively her own, although it may have been in their joint possession, and he may have exercised such acts respecting it as under the common law would have amounted to a reduction of it to his own possession,, and rendered it liable for his debts, is, nevertheless, by the act of 1871, relative “to the rights of married women,” secured to her against any indebtedness of her husband to which she is in no way individually answerable.</p> <p>4. -■. The fact that the husband was accustomed to list the property for taxation as his own, is not conclusive on the question of ownership; it is at most only evidence proper to be submitted to the jury on that question.</p>

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

The action was brought in that court to enforce the specific performance of an alleged contract for the sale of a tract of land in that county. The contract was as follows : This contract made and entered into' this 14th day of February, 1880, by and between W. H. Sowle of Los Angelos, California, party of the first part, and B. L. Matthews of Fairbury, Nebraska, party of the second part.

<p>Referee: practice. The right of a referee to proceed with a trial of issues referred to him. by order of court, does not extend beyond the time at which he is directed to make his report.</p>

<p>1. Warrants on State Treasury: appropriation : constitutional law. Warrants on the state treasury can only be drawn in iiursuance 0f specific appropiations made by law. Cons., Sec. 22, Art. III.</p> <p>2. Legislative Appropriation. An appropriation for objects-described thus : “ Fugitives from justice, rewards for escaped convicts, sheriffs’ fees for conveying convicts to penitentiary, etc., $18,000,” cannot be drawn against in payment of sheriff’s' fees for conveying juvenile offenders to the state reform school.</p>

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

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

<p>Appeal from the district court of Jefferson county. Tried below before Weaver, J.</p> <p>cited Mulloy v. In-galls, 4 Neb., 117. Jackson v. King, 4 Cowen, 207. S. C. 15 American Dec., 357. Burgess v. Pollock, 53 Iowa, 273. (S'. C., 36 Amer. Rep., 219. Stewart’s Executors v. Lispenard, 26 Wend., 255. Blanchard v. Nestle, 3 Denio, 37. Franklin v. Kelly, 2 Neb., 117. Staples v. Wellington, 58-Maine, 453. Chandler v, Barrett, 21 La. An., 58. Lewis' v. Baircl, 3 McLean, 56. Hix v. Whittemore, 4 Metcalf, 545.</p>

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

<p>Practice in Justices’ Courts: vacation of judgment. Where a defenclan t lias entered his appearance to the action, and absents himself on the day of trial, he is not entitled to have the judgment against him set aside, under sec. 1001 of the code.</p>

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

This was an action on a promissory note for $90.00, dated Sept. 29, 1879, and payable six months after date, to the order of Laird & Dezendorf. The note came into . the hands of plaintiffs, who alleged that it was bought by them in good faith, for a valuable consideration, and without notice of any failure in consideration or defect.

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

<p>Motion to dismiss proceedings in error, in case from ■Otoe county.</p>

<p>Error to the district court for Douglas county. Tried below before Savage, J.</p> <p>cited Williams v. Bank, 1 Ind., 230, Justice v. Charles, 7 Blackf., 122. Railroad Company v. National Bank, 102 U. S., 14. Swift v. Tyson, 16 Peters, 1-20. McCarty v. Roots, 21 How., 432, 438-9. Heywood v. Watson, 1 M. & P., 268. Poirier v. Morris, 20 Eng. L. & Eq., 103. Atkinson v. Brooks, 26 Yt., 669. Quinn v. Hard, 43 Yt., 375. Russell v. Slater, 47 Yt., 273. Blanchard v. Stevens, 3 Cush., 162. Cidver v. Benedict, 13 Gray, 7. Stoddard v. Kimball, 6 Cush., 469. ' Fisher v. Fisher, 98 Mass., 303. Roberts v. Hall, 37 Conn., 205. Cobb v. Doyle, 7 R. I., 550. Williams v. Little, 11 N. H., 66. Bowman v. Millison, 58 111., 36. Payne v. Bensley, 8 Cal., 260, Armour v. McMichael, 36 N. J. L., 92. Maitland v. Citizens Bank of Baltimore, 4 Md., 540. Valette v. Mason, 1 Carter (Ind.), 288. Bank of Chwrlestmonv. Chambers, 11 Rich. (S. C.), 657. Boatman’s Saving Institution v. Holland, 38 Mo., 49.</p> <p>oited Story on Promissory Notes, secs. 104, 404, 438. Johnson v. Weed, 9 Johns., 310. Stevens v. Anderson, 30 Inch, 391. 24 Pick., 21. Welch v. Allington, 23 Cal., 322. Sheeley v. Maucleville, 6 Cranch., 253. Haines v. Peaice, 41 Md., 228. Summerville v. H. & St. Joe R. R., 62 Mo., 391.</p>

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

<p>Pleading: petition. The petition of the plaintiffs, the substance of which is set out in the opinion, held, to state facts sufficient to constitute a cause of action on the part of the plaintiffs, against the defendants.</p>

Oliver Stevenson brought an action in the district court of Otoe county, on the 24th of June, 1880, to foreclose a mortgage executed May 23, 1870, and due six months thereafter, by William R. Craig, and Rowena S. Craig, his wife, to said Stevenson, to secure a note of William R. Craig of that date. The title to the property covered by the mortgage was in the wife, and the same was claimed by her as her separate property.

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

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

<p>1. ' County Courts: jurisdiction. County courts have juris- ■' diction of actions to recover damages for assault and battery, where the amount sought to be recovered does not exceed #500.00.</p> <p>2. -:--: summons. If the amount claimed does not exceed #100.00, a summons should be issued and served in the same manner as in cases commenced before a justice of the peace.'</p>

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

<p>■County Courts: new trial. A county court is governed by the same statute as a justice of the peace in granting a new trial, and must grant the same, if at all, within four days from the time of ' entering judgment.</p>

<p>1- Appeal: neglect oe officer. Where a party entitled to an appeal uses diligence in endeavoring to perfect the same, the , law will not permit him to be deprived of it through the neglect of the officer whose duty it was to prepare the transcript. Dob-son v. Dobson, 7 Neb., 296, adhered to.</p> <p>2. Dismissal: practice. Where an appeal has been dismissed in the district court, and it is desired to.have the same reinstated, the proper practice is by motion in the same case, and not by an original action.</p>

<p>Verdict against evidence. Where the only error assigned is that the verdict is not sustained by the evidence, it will not he set aside, unless it is against the clear preponderance of the testimony.</p>

<p>1. Fences: common law. At common law, if one of two adjoining owners build a fence on the line between his own and an adj oining lot without an agreement that it shall be built at j oint expense, he cannot recover from the latter one half of the value of the fence, even if he join his fence to such division fence.</p> <p>2.--■: statute. The statute in relation to partition fences and the mode of apportionment and procedure is exclusive.</p>

<p>Rehearing of case, 11 Neb., 265.</p>

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

<p>Mortgage: misdescription oe property. A mistake in the description of property mortgaged may be corrected, and a decree of foreclosure entered in the same action. Certain allegations as to mistake held sufficient to sustain the judgment.</p>

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

Tried below before Weaver, J. The note being barred on its face, burden of proof is upon the plaintiff to show the specific exceptions, -which he alleges in his petition, in order to take the case out of the statute. Funk v. McVay, 21 La. Ann., 192, 267, 278, 276, and 501. Prigman v. East Tenn. R. R. Co., 1 Lea, (Tenn.), 204. Spurger v. Hardy, 4 Mo.

Tried below before Weaver, J. Answer states that agreement to pay in wheat was made after execution of the note, and not at the time, as assumed by court. The defendant can only defend on grounds set up in his answer. VanDykev. Davis, 2 Mich., 145, and cases cited.

<p>1. Usury. A plea of usury, and of payment of interest upon an usurious contract, as payment jiro tanto upon the principal, are.available as a defense in an action on the usurious contract; but when the action is dismissed without prejudice before being submitted to the court, such defense is not such, a set off or counter claim as can be retained and tried by the court.</p> <p>2. Dismissal of Action: removal to tj. s. court. Where a plaintiff dismissed his action and afterwards filed a petition to remove the same to the U. S. Circuit court, it is not error for the court to overrule the motion, there being nothing to remove.</p>

<p>Judgment: release. Tho voluntary release of 0110 joint judgment debtor operates as a release of his co-defendant.</p>

<p>1. Contract: consideration. B. having1 a pre-emption claim upon the public lands, made an arrangement with It., to enter the same with soldiers’ additional eighties and convey to him, R. being paid §300.00. Held, That upon a failure to convey, B. could maintain an action against R. to recover the consideration.</p> <p>2. -:--. Where acts are merely prohibited by statute, and the parties are not in pari delicto, the party upon whom no penalty is imposed- may upon non-performance maintain an aotiou against his co-contractor, to recover the amount-advanced on the contract.</p>

<p>Public Lands: decisions of land officers. Questions relating to settlement on tlie public lands under the pre-emption aet of 1841, are questions of fact, and the findings of the land officers as to such iiicts when affirmed on appeal, are conclusive on the parties, and cannot he reviewed in a collateral proceeding.</p>

This was an action of forcible entry and detention brought before a justice of the peace, by John Campbell, who obtained a judgment of restitution there. William Sutton, the defendant, took the case on error to the district court, and on trial before Pound, J., judgment was. rendered in his favor, reversing the judgment of the-justice, etc., to reverse which Campbell brought the case here on a petition in error.

<p>■School Lands. J. G. was in possession of a piece of school land as lessee, from the state, was in default of the payment of interest thereon, had been notified of such delinquency by the county treasurer, but no proceeding had been taken to dispossess him, when H. G. H. applied to the proper county officers and had the said land appraised, took out a lease for the same, surrendered his lease and applied to purchase the same, and perfected his purchase thereof according to the forms of law, except that the board of commissioners for the sale, leasing, etc., of the school ■ lands, etc., refused to make or deliver to H. G. H. a contract of sale of the said land. Held, That the above facts constitute no cause of action on the part of H. G. H. against J. G. or the state board.</p>

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

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

<p>Error to the district court for York comity. Tried, below before Post, J. '</p>

<p>1. Promissory Notes : bona fide purchaser. A bank purchased secured and unsecured notes before the maturity thereof, for-about tliree-iii'tlis of tlieir face value. In an action on one of the notes, there being- no testimony tending to show their actual value, held, .that the price paid was not sufficient to justify a jury in finding that the bank was not a bona fide purchaser.</p> <p>2. -: pailure op consideration. In an action uxion a promissory note given for fruit trees, the defense was a failure of consideration and breach of warranty, but there was no testimony tending to show the loss of trees or a breach of warranty. Held, a failure to prove the defense.</p>

<p>1. Joinder of Actions. A cause of action to recover tlie possession of land, and for rents and profits,-may be joined.</p> <p>'2. Limitation of Actions. An action for rents and profits is barred in four years, and is not limited to the time of service of summons in the action.</p>

<p>1. Specific Performance. An action for the specific performance of a contract for the sale of real estate is of two fold character, viz: in rem and in personam, and may he Drought against a nonresident defendant in the county whore the land in controversy is situated.</p> <p>2. -: jurisdiction. The jurisdiction of courts of equity, to decree specific performance of contracts for the. sale of real estate, is not limited as in cases respecting chattels, to special circumstances, but is general.</p> <p>3. Vendor and Vendee: title. Where the vendee is willing to accept the vendor’s title, the vendor cannot set uj) as a defense to the action a defect in his title.</p> <p>4. -: statute OP prauds. The statute of frauds only requires the vendor to sign the contract, or memorandum thereof, • for the sale of lands.</p> <p>5. Proving contract by letters. Where a contract is sought to be proved by letters, there must be testimony tending to prove the handwriting, or that they came from the defendant or an authorized agent, or were received in due course of mail in answer to letters mailed to the address of the alleged writer.</p>

Tried below before Weaver, J. The plaintiff in his petition avers: 1. That defendants were partners, as Hinton, Brown & Co. 2. That on Sept. 20, 1877, they were indebted to plaintiff in the sum of $478, and as'such firm gave plaintiff a note therefor, due in fifteen months, (Dec. 1, 1878). 8. That on Dec. 20, 1878, plaintiff was paid part of interest accrued, leaving a balance on said note of $500. 4.

Tried below before Pound, J. cited on authority of Scofield to appear as attorney, Field v. Gibbs, 1 Pet., C. C., 155, Reed v. Pratt, 2 Hill, 64. Insurance Co. v. Oakley, 9 Paige, 496. Grant v. White, 6 Cal., 55. Brown v. Nickolls, 42 N. Y., 26. Receiver is officer of court and continues until lie is discharged. Edwards on Receivers, 4. Winfield v. Bacon, 24 Barb., 154, Judgments for or against deceased persons are not void on that account. Collins v. Mitchel, 5 Elor,, 864.

This was an action brought in the district c'ourt for Cuming county, by judgment creditors of John D. Neligh and the West Point Manufacturing Company, for the purpose of subjecting the property and assets of said West Point Manufacturing Co. 'to the payment of their claims; for a determination of the priorities of the respective liens against said property and assets; and for having certain apparent liens against said property and assets, decreed to have been paid.

<p>Motion to dismiss appeal.</p>

<p>1. Practice: judge’s minutes: judgment. The judge’s minutes, as to entries made on the trial docket, are pi-ima/acie evidence of the proceedings in a case, but may be shown to differ from the judgment actually rendered. And the court cannot be compelled to correct its journal from such minutes.</p> <p>2. Stay of Execution. After a party has applied for and obtained stay of order of sale, he cannot have the judgment reviewed on error or appeal.</p>

<p>1. Sheriff: official bond : liability of his sureties. Where a sheriff, with a process ag-ainst the property of one person, seizes, by virtue thereof, the property of another, he is guilty of official misconduct, for which he and his sureties are liable in an action on his official bond. Nor does it.matter as to the liability of his sureties, whether lie do this knowingly and willfully, or through gross carelessness, or mere indifference to official duty.</p> <p>2. Pleading: demurrer. Where,' notwithstanding formal defects in a xietition, enough is alleged to support a judgment in favor of the plaintiff it is not subject to general demurrer.</p> <p>3. Chattel Mortgage: consideration. As to attachment creditors of the mortgagor a pre-existing debt, already due, is a good consideration for a chattel mortgage, and protects the mortgagee to the same extent as would a new consideration, given at the time of making the mortgage.</p> <p>■4. -: possession by mortgagor. A chattel mortgage of a stock of goods containing a clause, by which the mortgagor is given possession with power of sale in the usual course of trade, the proceeds to go in satisfaction of the mortgage debt, although by our statute made presumptively fraudulent, is not conclusively so, and may, by satisfactory evidence, be shown to have been made in good faith.</p> <p>•5. -: fraud is A question of fact. The question whether there was fraudulent intent in the giving of a chattel mortgage is, in all cases, one of fact, and must be raised, if at all, by suitable pleading.</p>

On trial there before Weaver, J., Quillin had judgment, and defendant brought cause here for review on a péti-' tion in error.

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

<p>Error to the district court for Madison county. Heard ■below before Barnes, J.</p>

<p>I. Verdict: disregard of evidence bt jury. When it is: clear that material testimony has been disregarded by the jury, and which if considered and given due weight, would require a different verdict from that returned, a new trial will be granted.</p> <p>2. Incompetent evidence. The admission of incompetent evidence, if it have a tendency to prejudice the party excepting to it, is good ground for a new trial.</p> <p>3. -: good character. In a civil action against an innkeeper by a guest for the recovery of damages occasioned by a loss of goods, evidence of the defendant’s good character for honesty is not admissible.</p> <p>4. Objection to testimony: exception. Where illegal testimony is admitted over objection, to make the objection available on a proceeding in error, an exception to the ruling must be taken.</p> <p>5. -: objection must be specific. Where to a question put to a -witness as to whether he were “acquainted with the general reputation” of the defendant “for honesty,” etc., this objection was made — “Plaintiff objects as before,’ and no previous objection had been made during the examination of this witness, althouglftlierehad been many, and for various reasons, during the examination of others, held, that the objection was bad for indefiniteness.</p> <p>6. Instruction to jury. If an instruction to a jury, on the subject of plaintiff's contributory negligence in the loss of goods atan inn, mention as evidence of such negligence matters that are not so, it is prejudicial error.</p> <p>7.--■. Three credible witnesses, whose testimony on the point was uncontradicted, having sworn positively and particularly to a fact about which they, could not have boon mistaken, and the judge, in his charge to the jury, having suggested that there might be serious doubt on thesubject, and that they might find the evidence “evenly balanced,” held, erroneous.</p> <p>8. ---. And if, by an instruction, a question material to the issue and without any evidence to support it,' be submitted to the jury, it is error.</p> <p>S.-. Where material facts alleged in the petition stand admitted by the answer, the plaintiff has the right to have the jury so instructed, and told that such facts must be taken as true.</p> <p>10. Innkeeper: his duty and responsibility. An innkeeper is bound to take all possible care for the safety and security of the goods, money, etc., of his guests while in his house. And if the goods, or money, of a guest be stolen from the inn, through no fault or neglect of the guest, nor by a companion guest, and there is no evidence to show how it was done, or by whom, the. innkeeper is liable for the loss.</p>

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

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

<p>Order to show cause why an attachment should not issue against respondents for contempt.</p>

<p>Appeal from the district court of Stanton county. Tried below before Barnes, J.</p>

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

<p>Attachment. An attachment by a non-resident partnership in the firm name is not void. The want of legal capacity to sue must be objected to on that ground, or it will be waived.</p>

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

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