Volume 13 — Nebraska Reports

Tried below before Post, J. The sixth finding 'of facts by the referee is as follows : Sixth — That in the summer or early fall of 1876, the defendant, George W. Steele, then the acting manager of the Alexis Mercantile Association, in a conversation at Council Bluffs, Iowa, with A. J. Crittenden, one of the plaintiffs, and others, stated and represented to the said plaintiffs, for the purpose of obtaining an extension of the time of payment of a portion of said indebtedness…

Tried below before Post, J. Verbal lease was absolutely void. Comp. Stat., chap. 32, secs. 3, 5. Proofs do not show tenancy from year to year. One essential ingredient in such a tenancy is the agreement to pay an annual rent. Morrill v. Maohman, 24 Mich., 286. The rent agreed upon in this case was $40 per month. The statement of the defendant in error that it was $480 per year is at most but a conclusion or computation.

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

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

Tried below before Weaver, J. 1. At the time of the sale under the execution Zeigler notified the McCormicks that he had no title to the grain levied on, and warned them not to buy. The judgment was satisfied in full by the McCormicks, so they are not entitled to have that satisfaction set aside and a new execution awarded. The authorities to the contrary mainly imply a warranty at an execution sale or are based upon a statute. We have no statute.

This was an action brought in the district court of Lancaster county, by Roggencamp against Ensign, as sheriff of said county. Roggencamp was the mortgagee of certain chattels. P. J. and Mary A. Grant were the mortgagors, and Ensign, as sheriff, levied upon and sold said property to satisfy an execution issued on a judgment against P. J. Grant.

This was an action brought in the county court of Hamilton county upon a promissory note executed by L. C. Predmore, payable to the order of C. J. Hinman, and by him transferred to the plaintiffs. Defendants defaulted and judgment was rendered in favor of plaintiffs. Hinman took the cause to the district court on a petition in error, where, on trial before Post, J., the judgment of the county court was reversed.

<p>1. Won-Suit. If neither tlie petition nor the evidence adduced upon the trial show the plaintiff to he. entitled to any relief whatever, a judgment of non-snit is proper.</p> <p>2. Money paid under Mistake — Recovery back. To authorize the recovery of money paid for a valid consideration, on the ground of its having been paid under a mistake of fact, it must he, shown that the party receiving it is in some way responsible for the mistake.</p>

Tried below before Barnes, J. The facts are fully set forth in the opinion. Evidence shows that Cole & Pilsbury were agents of Mabie Brothers. Agency may lie inferred from acts of parties. 1 Bouvier’s Law Die., 100. Columbus Company v. Hurfor'd, 1 Neb., 157. And same defenses can be interposed as if action had been brought by principal. Taintor v. Prendergast, 3 Hill, 72. Huntington v. Knox, 7 Cusb., 371. Counsel should have been allowed to argue cause to jury.

This was an action of replevin brought by the Lincoln and Northwestern Railroad Company against Dora Dcitrichs in the district court of Platte county, to recover possession of a one-storv frame dwelling located on block 66, in the city of Columbus. The cause was scut to a referee, who reported as follows-: First.

Appear from the district court for Platte county. Heard below on exceptions to report of referee, by Post, J. Exceptions overruled, and judgment for defendants. cited Muebsehman v. Baher, 7 Wis., 542. cited Young v. Morgan, 9 Neb., 171, and authorities there cited.

<p>1. 'Contract: construction. As a general rule, a contract must be construed by reference to the provisions contained in it, and not by anything de hors-, but in some cases the court will look to the subsequent acts of the parties under it.</p> <p>2. ------:--. Where hoth parties to a contract, with a full knowledge of its terms, hy their action under it have given it the same construction, it is a safe rule to adopt that construction, whore there is a possible doubt as to its meaning, in estimating damages under it.</p> <p>3. School Teacher: certificate: wages. A proper certificate of qualification is essential to warrant a school hoard in paying a teacher from the public school ñmds. The prohibition of the statute, however, is upon the district hoard, and not upon the teacher; and where, during a part of a term, the teacher was • without a certificate, notwithstanding which x>ayment for the time was made, in an action to recover wages due for the last month of the term during all of which the teacher had a certificate, Held, That the amount so paid could not he set off against what was due for the last month.</p>

<p>Criminal Law: concealing horse thief: practice. At the November term, 1880, of the district court of F. County, T. J. W. was indicted, tried, and convicted of horse stealing. On the same day J. R. was indicted, tried and convicted for having coneealed the said T. J. W., shortly after he had stolen the said horse, knowing him to he a horse thief. T. J. W. brought his case to this court on error, where the judgment of the district court against him was reversed, and the cause remanded to the district court, in which last named court the said T. J. W. was discharged on his personal recognizance, to appear at the next term of court. The case of J. B. being also before this court on error, held, Without examining the errors assigned, that the judgment of the district court be reversed.</p>

<p>1. Counties: bids for supplies. All bids for books, blanks, and stationery, for supplies for county officers must be filed with the county clerk on or before the first day of January. The commissioners have no authority to consider a bid filed thereafter.</p> <p>-: -. Bids must substantially conform to the advertisement, and should specify the price at which articles will be furnished. A bid to furnish articles “ at what it cost to lay them down” is too indefinite and no award can be made thereon.</p> <p>-: -. The omission of two articles of insignificant value, held, Not to invalidate a bid otherwise in proper form.</p>

<p>Error to the district court for Madison county. Tried below before Barnes, J.</p> <p>cited Blair v. West Point Mfg. Co., 7 Neb., 146. Mills v. Miller, 3 Neb., 95. Burbank v. Bilis, 7 Neb., 156.</p> <p>cited Orr 'o. Seaton, 1 Neb., 107. Mulhollan v. Seoggin, 8 Neb., 202. Hardy v. Miller, 11 Neb., 395.</p>

<p>Schools: contract WITH teacher. Thestatutespecially authorizes the director of a school district to employ teachers either with the assent of the moderator and treasurer, or one of them, or by then direction. A contract with a teacher therefore, entered into on behalf of the district by the director and treasurer without the assent of or notice to the moderator, is valid.</p>

Tided below before Barnes, J. cited 6th Wait’s Actions and Defenses, 163, et-seq. The notes were made in Illinois, and the laws of that state govern this case. Under those laws the machine would be liable to execution or attachment against the maker of the notes. JJIoGormiah v. Hadden, 37 111., 370. Murch v. Wright, 46 Id., 487. Latham v. Sumner, 89 Id., 233.

Tried below before Barnes, J. The life of Bergtold’s mortgage having limited in advance to one year it ceased to be of any forcé whatever as against the plaintiffs in error after that time, and the repeal of the law under which it was recorded could not have operated to give, it new life, as its life had been limited to one year, unless, etc., and the policy of our law has been to require such instruments to be recorded.

Original application for a mandamus to compel the levy of a tax to pay school district bonds placed on market and sold to plaintiff a bona fide purchaser for value.

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

<p>Marriage: formal but void: cohabitation: support. A man formally married to a woman, who, because of her insanity, which he discovered very soon afterwards, was incapable of entering into the marriage contract, and continuing thereafter voluntarily to cohabit with her as his wife, is under a legal obligation to support her. And having furnished such support, he cannot, upon a decree of separation on the ground of the invalidity of the marriage, make the same a charge against her separate estate.</p>

This was an appeal from a supplemental decree rendered in the district court of Madison county by Barnes, J., as follows: And now, on this day, this cause coming on to be heard, upon the application of the plaintiff to revise and alter the decree made and entered at the last term of this court, in this cause, to-wit: to vacate and set aside that part of said decree requiring the defendant to convey to the plaintiff the real estate mentioned and described in said decree, and…

Appeal by plaintiff from a decree of the district court of Platte county, Post, J., presiding. 1. The judgment not being a lien on the land when Wells conveyed the same to Kruger, he had a right to make whatever application of the purchase money he pleased. 2. The agreement was not ehampertous. 4 Bl. Com., *135. Putney v. Fcurnhcm, 27 Wis., 187. Nebraska City v. Cas Company, 9 Neb., 339. Stearns v. Felker, 28 Wis., 597. 1.

Action on the bond of Van Sickel, county treasurer of Buffalo County. Judgment below before Gaslin, J., for the amount claimed, and the sureties brought the case here for review on a petition in error. The opinion states the facts. cited: Vivan v. Otis,.24 Wis., 518. County of Mahaska v. Ingalls, 16 Iowa, 81. Bessinger v. Dickerson, 20 Iowa, 261. Warren Co. v. Warde, 21 Iowa, 88. Board of Supe>'viso7's of Jefferson Co. v. Jones, 19 Wis., 61.

<p>Appeal from the district court of Dodge county. Heard below before Post, J.</p> <p>cited JB. & M. JR. JR. v. Saunders County, 9 Neb., 511. State, ex rel. Jones, v. Lancaster County, 6 Neb., 485. Gee v. JMJoore, 14 Cal., 473. Smith v. Pronin, 4 Allen,' 516. Doyle v. Coburn, 6 Allen, 71. McDonald v. Crandall, 43 111., 231. Hewitt n. Templeton, 48 111., 369.</p> <p>cited inter alia Dillon on Mun. Corp., sec. 18. People v. Mahaney, 13 Mich., 494. Cooley Const., Lim., 144. Pleuler v. The State, 11 Neb., 547. Haight v. IToide, 19 Wis., 472. McCabe v. Mazsuchelli, 13 Wis.. 534. Phelps v. Rooney, 9 Wis., 70. White v. Clarke, 36 111., 288. Leiz v. Diabler, 12 Cal., 327. Higby v. Willard, 45 Iowa, 586.</p>

Appeal by defendant, The Lincoln & Northwestern Railroad from a decree of the district court for Seward county, Post, J. presiding, enjoining the delivery of certain county and precinct bonds to said defendant. A precinct can issue its bonds in excess of the limitation of ten per cent to which a county is ícstricted. State v. Lancaster County, 6 Neb., 214.

<p>Usury. Where an agent entrusted with the money of his principal to loan exacts a bonus or commission from tho borrower in addition to lawful interest the contract will he tainted with usury.</p>

Tried below before Post, J. 1. Where a corporation is divided and a new corporation is formed out of a part thereof, the remaining part of the original corporation, in the absence of statute or agreement to the contrary, retains the name, property, powers, rights, and privileges, and remains subject to all its obligations and duties. Town of Depere v. Town of Bellevue, 31 Wis., 120. Hampshire v. Franklin, 16 Mass., 78. North Yarmouth v. Skillings, 45 Me., 133.

The facts appear in the report of the referee set forth in opinion. The mortgage to Smith The power in the mortgage was to sell at “private sale” or at public auction. The mortgagor had a right to contract with reference to the mode of foreclosure. Herman on Chattel Mortgages, secs. 206, 209, 211. 2 Jones on Mortgages, sec. 1778. Mortgage was valid, mortgagees were in possession and mortgagor had no property therein subject to levy or sale. Campbell v. Leonard, 11 Iowa, 489.

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

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

<p>Application for hearing of motion to quash.</p>

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

<p>Practice in Supreme Court. Only sucli matter should be included in a transcript brought to this court as is necessary to a correct understanding of the case.</p>

<p>Application for leave to amend petition in error.</p>

Tried below before Weaver, J. The purchaser, by his deed, acquires all the right, title, interest, and claim of the former owner, and of the state and county, in and to the land, and the lien of the taxes previously assessed thereon, being included within these terms, is divested. It merges in the title conveyed to the purchaser.

<p>Error to the district court for Clay county. Tried below before Weaver, J.</p> <p>cited: Thompson on Homestead, secs. 820, 821. Wallaoev. Laioyer, 54 Ind,, 509. Bowman v. Smiley, 81 Borní. State, 225. McGlushey v. McNeely, 8 111., 578. TJndley v. Miller, 67 111., 244. Butt v. Green, 29 Ohio State, 667. Borland v. O’Neal, 22 Cal., 504. Bonnell v. Botoman, 53 111., 460.</p>

Tried be-below before Weaver, J. against right of defendant™ error to sue, cited: Code, sec. 32. Camden Bank v. .Rodgers, 4 How. Pr., 63. Clark v. Phillips, 21 Id., 87. Billings v. Jane, 11 Barb., 620. On question of settlement, cited: Douglass v. White, 3 Barb. Ch., 621. Palmer-ton v Huxford, 4 Denio, 166. Bull v. Bull, 43 Conn., 455. United States v. Child, 12 Wall., 232. ' Fisher v. May, 2 Bibb, 449. Reed v. Bartlett, 19 Pick., 273.

<p>Error to the district court for Hall county. Tried below before Post, J.</p> <p>Contract of Stabler & Deisher was not binding on plaintiff. 1 Parsons on Contracts, 54. Long v. Colburn, 11 Mass., 97. Magill v. Hinsdale, 6 Conn., 464. Hancock v. Fairfield, 30 Me., 299. Merchant’s Bank v. Hayes, 7 Hun., 530. Hayes v. Crutcher, 54 Ind., 260. On question of warranty cited: Nichols v. Hail, 4 Neb., 210. Edgerly v. Gardner, 9 Neb., 130. On damages, cited: Field, 266, 275. Crosby v. Watkins, 12 Cal., 85. Hamilton v. McPherson, 28 New York, 72. McClary v. S. C. & P. R. R., 3 Neb., 54. Berry v. Dioinel, 44 Me., 255.</p> <p>On question of agency, cited: 2 Smith’s Leading Cases, 432. Story on Agency, 259. Lawrence v. Taylor, 5 Hill, 107. Stoiy on Sales, sec. 77. Hovey v. Blanchard, 13 New Hamp., 145. Woodbury v. Lamed, 5 Minn., 339. On damages: Kelley v. Peterson, 9 Neb., 81. Baldwin v. Blanchard, 15 Minn., 489. Field, 238, et seg. Hadley v. Baxendale, 9 Exch., 341.</p>

<p>Error to the district court for Gage county. Tried below before 'Weaver, J.</p> <p>Bill of particulars insufficient. Gage v. Roberts, 12 Neb., 276. K. P. R. R. v. Taylor, 17 Kan., 569. Bowen v. School District, 10 Neb., 265. B. & M. R. R. v. York Co., 7 Neb., 487. There should be a finding. Smith v. Silvis, 8 Neb., 164. Sprich v. Washington Cownty, 3 Neb., 255.</p> <p>cited: Bell vt Sherer, 12 Neb., 409. Bliss on Code PL, sec. 439. Wilcox v. Toledo, 43 Mich., 588, 589. Finding. Swan’s Treatise, 209. Rucas v. San Francisco, 28 Cal., 591,</p>

<p>1. Bill of Exceptions. A bill of exceptions must be submitted to the adverse party for examination and amendment before being signed by tbe judge, and if not thus submitted, may be' quashed.</p> <p>2. '-: If there is no receipt or other evidence in the record, an affidavit stating the delivery of the bill to the adverse party must show when and to whom the bill was delivered.</p>

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

Tried below before Weaver, J. Note and mortgage should be construed together. 1 Jones on Mortgages, sec. 76. Muzzy v. Knight, 8 Kan., 456. Kennion v. Kelsey, 10 Iowa, 443. Mortgage subject to conditions of note. 1 Hilliard on Mortgages, 286. ■ 2 Jones on Mortgages, 902. Tender unavailing. Batmders v. Frost, 5 Pick., 267. Graham v. Linden, 50 N. Y., 547. The construction of note and mortgage must be such as to give effect to the terms of each. 2 Parsons Cont., 501.

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

<p>Practice in the Supreme Court. An alias summons in proceedings in error, issued more than one year from the date of the final order sought to be reviewed, is of no effect, being issued after the bar of the statute is complete.</p>

<p>1. Summons: service on corporation. Where the president or chief officer of a corporation is absent from the county, service may he made upon the treasurer.</p> <p>2. Confirmation of Sale in Vacation. A judge of the district court has authority, under section 498 of the code, in vacation to confirm a sale of real estate made upon execution.</p>

<p>Appeal from Saline county. Heard below before Weaver, J.</p>

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

<p>Error to the district court for Lancaster county. Tried below before Pound, J. The facts appear in the opinion.</p> <p>The agreement is void. Taylor v. Boardman, 24 Mich.,</p> <p>287. Richardson v. Johnson, 41 Wis., 100. Marcy v. Marcy, 9 Allen, 8. Eiseley v. Malchow, 9 Neb., 180. Bald/win v. Palmer, 10 N. Y., 232. Scott v. Thomas, 1 Seam., 58. Erben v. Lorillard, 19 N. Y., 299. Browne on the Statute of Frauds, 118, 131, 134.</p> <p>cited: Doyle v. Knapp, 3 Seam., 337. Tompkins v. Phillips, 12 Georgia, 52. Warren v. Whitney, 24 Maine, 561. Hubbard v. Coojidge, 1 Metcalf, 84. Perry v. Buckman, 33 Vermont, 7. Sanford v. Huxford, 32 Mich., 313. Randle v. Harris, 6 Yerger, 508. Berry v. Graddy, 1 Met. (Ky.), 553. Burr v. Wilcox, 13 Allen, 269.</p>

Parol evidence should have been admitted to explain the intention of the parties, and the court erred in excluding that offered. Leggit v. Buckhalter, 30 Miss., 421. 2 Leading Cases in Equity, Hare & Wallace Notes, 670. Boggs v. Taylor, 26 Ohio State, 604. Painter v. Painter, 18 Ohio, 265. Alger v. Kennedy, 49 Vermont, 109. Goddard v. Bulon, 9 American Decisions, 663.

<p>1. Witnesses against Executor. A person-who is precluded by statute from testifying against' an executor cannot, by transferring his interest during the pendency of the action, be rendered competent to testify.</p> <p>2.--: transfer of interest. A transfer by a plaintiff ol bis interest in the action to a co-plaintiff during the pendency of the suit will not justify a court in dismissing the action.</p>

<p>1. Habeas Corpus:' pleading. A petition for a writ of habeas corpus must state the facts which constitute the illegal restraint. It is not sufficient to allege that the petitioner is illegally restrained of his liberty. Where no copy of the petition is set forth in the record, error cannot be predicated on the refusal of the court below to admit certain evidence offered.</p> <p>2. -: evidence. Where a petition for habeas corpus is presented for alleged want of probable cause, it should set forth all the testimony taken before the examining magistrate.</p>

. against title to the act, cited Cooley Const. Lim., 148. Stale, ex rel. Jones, v. Lancaster County, 6.Neb., 474. 3 West Ya., 5,88. 20 Ind., 490. in favor of constitutionality of the law, cited Cooley Const. Lim. (2d Ed.), 143, 144. Bonorden v. Kriz, ante p. 121.

<p>Motion to strike petition in error from files.</p>

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

Tried below before Savage, J. The act incorporating the company authorized it to mortgage its franchise. In such ease the road becomes an indivisible entire thing, and a mortgage of its property covers everything used in operating the road. Pierce v. Emery, 32 N. H., 484.. Phillips v. Winslow, 18 B. Mon., 431. Willinch v. Morris Canal Co., 3 Green (N. J. Eq-.), 377. Phila., &c., P. Co. v. Wollper, 64 Pa. St., 366. Galveston v. Cowdrey, 11 Wall., 459.

<p>1. Chattel Mortgage. Under the provisions of see. 11, chap. 32, Comp. Stat., a chattel mortgage, although filed for record, is prima facie fraudulent as to creditors and bona fide purchasers, if the mortgagor retains possession of the mortgaged property. And the person claiming under such mortgage must make it appear that the same was made in good faith in order to recover. Pyle v. Warren, 2 Neb., 252, adhered to.</p> <p>2.--. Certain property levied upon, 11eld, Not to be included in a sale under a decree of foreclosure. Lake, Ch. J., dissenting.</p>

<p>Attachment: non-iijgsidjgnts. One S. in May, J881, came from Illinois to this state, with the intention of abandoning his former residence and residing- here; hut his wife remained in Illinois until October of that year. In J anuary, 1881, an action by attachment was commenced against B. and wife upon the ground that they were non-residents. Hehl, That the attachment could not be sustained.</p>

<p>Appeal from Douglas county. Heard below before Savage, J.</p>

<p>1.. Practice in supreme court. After a cause is submitted to the court, on the merits, it is too late to raise the otfjeetion that Hie bill of exceptions was not presented to the adverse party for correction and amendment before being signed by the judge.</p> <p>2. Divorce and alimony. Decree for alimony modified by reducing the same from $5,500 to $3,000, and an allowance for attorney fees and expenses from $2,000 to $1000.</p>

<p>City of First Class: election. In April, 1881, one M. was elected treasurer of the city of Omaha for the term of two years. In December of the same year M. died, whereupon the mayor of said city appointed B. to fill the vacancy. The appointment was confirmed by the council, B. qualified, and toolc possession of tlie office. At the city election in April, 1882, certain voters of said city, without any resolution of the city council or proclamation of the mayor, cast their ballots for S. and I). S. having a majority of all the votes cast. In a proceeding by quo warranto to oust B. from the office of treasurer and installs, therein, Meld, That as the city election in April, 1882, was not a general election in said city, votes cast to fill a vacancy in the office of treasurer, without a resolution of the city council or proclamation of the mayor, were nugatory.</p>

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

<p>Mandamus. An applicittion for mandamus must show that the relator is entitled to the writ, otherwise it will he refused.</p>

<p>Motion to strike petition in error from the files.</p>

<p>Motion to quash summons.</p>

<p>Error to the district court for Butler county. Tried below before Post, J.</p> <p>cited Steel v. Kurz, 28 Ohio State, 191.</p> <p>cited: Wilson v. Bumstead, 12 Neb., 1. Code, sec. 454. Woodward v. G. & N. W. B. B., 23 Wis., 400. Railway Co. v. Keely, 23 Ind., 133. Stafford v. Drew, 3 Duer, 627. Commonwealth v. R. R., 11 Cush., 517. Comp. Stat., 215, 232. 2 Kent’s Com., 136. 2 Bouvier Law Die., title “Next of kin.”</p>

<p>Justice of Peace: entering judgment on Sunday. In an action tried to a jury in a justice court the jury retired at 10:30 p.M. on Saturday, and returned their verdict into court at 7:30 a.m. on Sunday. Held, That it was the duty of the justice to render judgment immediately upon the receipt of the verdict.</p>

<p>Guardian and Ward. A judge of the district court has authority at chambers in a proper case to grant license to a guardian to sell the real estate of his ward.</p>

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

<p>Error to the district court for Dixon county. Tried there before, Isaac Powers, Jr., referee.</p>

<p>Mechanic's lien. In November, 1880, one M. contracted -with G. to erect a bouse and fiirnisb tbe material. M. thereupon purchased lumber for tbe erection of said dwelling in bis own name, the credit being given to him, and after the erection of the building, left the state without paying for the lumber. A mechanic’s lien was thereupon filed against the lot on which the building' was erected and appurtenances, for the amount of the claim, and judgment was thereafter rendered against G-. for the amount and the premises were sold. Seld, That as the testimony failed to show that M. was the agent of &., the judgment and lien could not be sustained under the lien act in force at that time.</p>

The action was replevin by Housel who claimed title as mortgagee under chattel mortgage. The defendant, Cremer, claimed title by virtue of a voluntary assignment made by Agnes M. McKelligon, mortgagor of the jiroperty. The assignment was made subsequent to the mortgage. Before the trial Agnes died, and at the trial Housel was not permitted to testify as a witness.

<p>Error to the district court for Lancaster county. Tried below before Pound, J.</p> <p>cited: Coleman v. ■ Meade, 13 Bush., 358. Wylie v. Marine Bk., 61 N. Y., 415. Sehwartze v. Yearly, 31 Md., 270. MeGavoek v. Woodlief, 20 How., 221. Middleton v. Findlar, 25 Cal., 76.</p> <p>cited: Love v. Miller, 53 Ind., 294. JKoek v. Fmmerling, 22 Howard, 69. Pearson v. Mason, 120 Mass., 53. Lest v. Norton, 43 Com., 219. Simonson v. Kissiek, 4 Daly, N. Y., 143.</p>

<p>Error to the district court for Platte county. Tried below before Post, J.</p> <p>cited Bump on Bankruptcy, 9th Ed., 754. Bay v. Wight, 119 Mass., 426. Maxwell’s PI. and Pr., 352. McCormick v. Bickering, 4 New York, 276. Jaffray v. Orane, 50 Wis., 352.</p>

Tried below before Pound, J. 1. If there was not a variance, the evidence ought to show that the prisoners stole a cast-iron balance-wheel and that it was stolen at some particular time. But the evidence shows a trespass perhaps on one day, and a removal of part of the wheel after it had been destroyed on the same day, and at least one day intervened between the carrying away of the first part and the carrying away of the last. If a larceny was committed, when was it?

<p>1. Verdict Without Evidence. Evidence examined and found insufficient to support the verdict, a new trial is ordered.</p> <p>2. Instructions. Where an instruction, though correct as an abstract proposition of law, submits to the jury a question not in issue, and has a tendency to mislead, it is good ground for the reversal of the judgment. Rule applied.</p>

Tried below before Savage, J., upon appeal from an award of damages made in the county court in favor of Brown for property in Omaha, condemned and appropriated by the railroad.

<p>1. Property Exempt from Execution. A debtor who is tlie owner of a house which he occupies as a homestead, although incumbered by a mortgage for all it is worth, is not entitled to the exemption provided for by sec. 521 of the code of civil proeedure.</p> <p>2. -: ORDERED SOLD UNDER ATTACHMENT. The property of a debtor seized in attachment and ordered to be sold by the judg- . ment of a court having jurisdiction of it, cannot be released as being exempt from execution as provided by sees. 522 and 523 of the code. ' [Maxwell, J., dissenting.]</p>

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

. Error to the district court for Fillmore county. Tried below before Weaver, J. 1. The fabricated writing was invalid as a lease within the meaning of the statute. Comp. Stat., sec. 1, chap. 73. Definition of lease. 1 Hilliard on Real Property, 261, sec. 2. Definition of rent. 2 Bouvier Die,, 437. There is no rent stipulated for here. The agreement is to quit claim an interest in the premises in consideration of a certain amount of wheat and corn.

It was a suit upon a promissory note, for $900.00, given by Dunbar, for thirty-nine head of Texas ponies, dated July 28th, 1879, and due ninety days after date. The Texas ponies for which the note was»given were bought of Briggs, and the note made payable to the order of Briggs.

Tried below before Weaver, J. 1. Deeds were inadmissible. Conip. Stat., 387, sec. 2. Dicherson v. Davis, 12 Iowa, 353. Beaher v. Anderson, 11 Neb., 497. 2. The deeds were not conveyances so as to pass title. At best they were, as a matter of equity, only contracts to convey. Barr v. Hatch, Ohio, 3, 527, 528. Carr v. Williams eb al., 10 Ohio, 305. 3. The plaintiff in error was not liable for the enhanced rent of the premises caused by improvements put thereon by his own labor.

Tried below before Weaver, J. Deed was without consideration and void. 1 Bouvier Institutes, secs. 576, 578. In this case there was no acceptance of either deed or property, or of the offer to sell. Under decision in -3 Neb., 140, there must have been an absolute sale or nothing. Parties have sworn it was not a mortgage, and court cannot make it such by its finding and decree. If it is a deed, is it upon sufficient consideration? Tootle & Maulé v. Bu/nn, 6 Neb., 99.

Tried below before Weaver, J. cited: Mwrphy v. S, C. & P. P. P. Co., 55 Iowa, 473. Conversation was not sufficient evidence of lease or authority to enter on land. Gen. Stab, 392, sec. 5. And see Hungerford v. Redfiord, 29 Wis., 345. Turley v. Tuaher, 6 Mo., 583. cited: Chicago Rock, Co. v. Kinzie, 49 111., 289. Robison v. Uhl, 6 Neb.? 328. Richards v. Cunningham, 10 Id., 417, and authorities cited.

Action to foreclose a mortgage on real estate in Jefferson county, given by David C. Work and Mary J. Work as mortgagors. The instrument was acknowledged by David C. on the eighth day of November, 1880, and by Mary J. on the tenth day of December following.

Tried below before Pound, J. 1. The laying out of an “addition” to a city of the second class does not vest in the city any control of streets therein, unless they have been accepted by special ordinance for that purpose. Comp. Stat., 121, sec. 77; p. 124, sec. 95. 2. Conveyance to a municipal corporation of land beyond its boundaries for the purpose of a street, is void. Dillon on Mun. Corp., 533, sec. 435. 3.

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

<p>1. Witness: opinion. A witness not shown to have any knowledge in the matter of the construction or operation of railroads, is not competent to give an opinion as to the needs of a railroad company in respect to its depot, or other grounds.</p> <p>2. Evidence: error in the rejection of, cured. When the evidence of a witness is erroneously excluded, if it he subsequently admitted, the error is not a ground for reversing the judgment.</p> <p>3. Railroad: general manager: eminent domain. The decision of the general manager of a railroad company is jprima facie, and in the absence of all evidence to the contrary, a just measure of what is essential to the convenient and proper conduct of its business, and sufficient to warrant the exercise of the power of eminent domain in its behalf.</p> <p>4. -: -. In the exercise of the right of eminent domain by a railroad company for right of way, depot and other grounds, under the statute of this state, one appropriation does not exhaust its power, hut new appropriations may be made from time to time as tbe necessities of the road may require.</p> <p>5. -: -. Where one of the grounds upon which it was sought to enjoin the condemnation of land was that the company, in whose name the proceedings were conducted, had leased its road for a term of years not yet expired, Meld, [That the proceedings were properly taken in the name of such company.</p>

<p>AppeaFfrom Clay county. Tried below before Weaver, J.</p>

Tried below before Pound, J. The possession of personal property does not subject the garnishee to liability to answer in cash for such personal property in his hands. Dolby v. Tingley, 9 Neb., 417. Comp. Stat., 559, sec. 224. Miner v. Barker, 1 Alabama, 421. Estill v. Goodlor, 6 La. Ann., 122. Bed v. Whit-more, 16 La. Ann., 48. Coleman v. Fennimore, 16 Lk. Ann., 253. Frost v. Batrick, 11 Miss. (3 Smed. & M.), 783. Wetherellv. Flanigan, 2 Miles (Pa.), 243.

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

<p>1. Attachment. In a contest between attaching creditors the attachment first levied is entitled to priority.</p> <p>2. Process: caption. A writ commencing “The State 'of Nebraska, Lancaster County,” is sufficient without repeating the words -“The State of Nebraska”before the name of the officer addressed.</p>

<p>1. Administration of Estates: special administrator. A special administrator has authority in a proper case to appear and defend an action against the estate. Such power is to he inferred from the authority to bring and maintain suits; hut his powers cease upon the appointment, and qualification of a general administrator.</p> <p>2. -: -. A special administrator should he appointed hy the court haying authority to grant letters testamentary or of administration.</p>

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

<p>Public Lands of United States: forcible entry and detention. One S, in. 1871 entered a tract of land as a homestead under the United States statute. In 1876 he made final proof and has resided on the land since 1871 claiming the same. After S. made final proof the commissioner of the general land office, without notice, on his own motion, cancelled the entry of S., upon the ground that a filing had been made thereon in 1863 which was uncancelled. In 1881, R. entered the land as a timber culture claim and sought to evict S. by an action of forcible entry. Meld, That the action would not he.</p>

<p>1. Action for Assault and Battery: damages. In an action for assault and battery, the plaintiff, a married woman, having, while testifying in her own behalf, stated that at the time of the battery she was enciente, and that the battery caused her to miscarry, upon her cross-examination she was asked by defendant’s counsel whether her husband was not in the habit of beating her ? To which question the plaintiff by her counsel objected; which objection was sustained by the court. Held, No error.</p> <p>2. —1-: -. A verdict of two hundred and fifty dollars for assaulting and beating an enciente woman so as to produce a miscarriage, Held, Not excessive.</p> <p>3. NTew Trial. On the trial an important witness for the defendant who had been subpoenaed, upon being called did not answer, and was reported to be sick, whereupon the defendant proceeded with his defense without applying to |the court for either a continuance or a delay of the trial. Held, No ground for a new trial.</p> <p>4. -. A new trial will not be granted on the ground of newly discovered evidence, when such evidence, if produced, could have no greater effect than to discredit a party as a witness in his own behalf.</p> <p>5. -: affidavit. It is not sufficient to allege in an affidavit for a new trial on the ground of newly discovered evidence, that the party could not, with reasonable diligence, procure such testimony before the trial. The affidavit must state what particular effort the party has made to procure such testimony. Heady v. Mslibwrn, 3 Neb., 263; Axtell v. Warden, 7 Id., 186; and Tomer v.'Hensmore, 8 Id.; 384, adhered to.</p>

The action was brought there to contest an election held in the city of Lincoln, on a proposition to vote bonds to the defendant company.

<p>Replevin: chattel mortgage on stock: increase; In an action of replevin, commenced January 24, 1880, by J. F. S., against J. W. B., sheriff, the property replevied was described as “about seven hundred bushels of corn in the crib; one sorrel last spring’s colt; twenty-six head of black and white spotted shoats, about ten months old; all being kept on a farm occupied by F. G. S., one mile south of Fort Calhoun, Washington county, Nebraska.” Plaintiff claimed this property by virtue of a chattel mortgage executed by F. G. S. to him April 28, 1879, in which the property was described as “one bay mare eleven years old, named Tony; one gray horse, about nine years old, named Pet; one sorrel mare, four years old, named Bet; fifty head of hogs, from six weeks to two years old; all of said property being owned and kept by me on my farm, near Fort Calhoun, in Washington county, Nebraska; also all grain growing or in the bin or crib on my said farm.” Evidence was introduced that one of said mares was in foal at the date of the mortgage, and dropped the colt replevied sometime afterwards; also that some of the shoats replevied were pigged in the month of May, some in June, and some later. Verdict and judgment for the plaintiff as to all the properly replevied. On error, Held, That as to the colt and shoats, the verdict was not sustained by the evidence. Reversed and remanded.</p>

The action was in replevin by Thompson against Boggs, who, as sheriff, had levied on the property in question to satisfy executions issued on judgments against O’Hara. Judgment below before Savage, J., for Thompson.

<p>Garnishment of License Money. A license to sell intoxicating liquors, granted by the proper authority, not void upon its face, cannot he treated as a nullity and the money paid for the license he garnished as the property of the licensee.</p>

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

Tried below before Weaver, J. Recovery must be a pecuniary recompense for a pecuniary loss. Damages not recoverable for wounded feelings and disgrace. Kearney v. Fitzgerald, 43 Iowa, 568. Nor for loss of society and companionship. Dunleavy v. Watson, 38 Iowa, 400. The pleadings go to the jury.

<p>1. Boundary Lines. T. and H., the owners of a fractional half section of land, in 1864 agreed upon an equal division of the tract and established a line upon which a hedge was set out, and fence erected, and both parties cultivated up to and made improvements upon their respective tracts with reference to this line. Both parties sold and conveyed their respective -interests in the land, the grantees having knowledge of the agreement. Held, That the line thus established would be sustained, particularly in view of the fact that there was testimony tending to show that the action was barred.</p> <p>2. -: statute or limitations. Where the true line can be ascertained, and parties by mistake agree upon an erroneous line as their boundary, believing it to be the true line, they will not be concluded by such agreement from claiming to the true line when discovered, unless the statute a of limitations has run, or equitable reasons exist for establishing the erroneous line. But if the true line cannot be ascertained with certainty, then an agreement establishing a line of division will be sustained.</p>

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

<p>T. Pleading: petition. A petition which states that the plaintiff is the owner of certain real estate by tax deeds, and that the defendants hold a prior judgment, which was a lien upon the land before the sale and conveyance, and seeking to enjoin the sale under an execution issued on such judgment, does not state a cause of action.</p> <p>2. -: -: injunction. In such cáse the defendants have a right to compílete the sale and contest the validity of the tax deeds in an action at law, and a court of equity will not enjoin a sale under the execution unless some equitable ground exists for its interference.</p>

<p>Witnesses. Where the testimony is conflicting the question of the credibility of the witnesses is to be determined by the jury.</p>

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

On trial' below, before Pound, J., the following instructions asked for on behalf of Webster & Burr were refused and exceptions taken: A. The notes having been sent to defendant for collection to the order of Sheffler, they are bound to hold the proceeds' for him, and he not being made a party in this action, you will find for defendants garnishees and against plaintiff.

<p>1. Liquors: action against saloon keepers. Tlie wife of M. sued certain saloon keepers for loss of means of support, caused by the intoxication of her husband from liquors alleged to have been furnished by them. The petition contained twelve counts commencing November 30th, 1876, and terminating in October, 1880, and there was testimony which was uncontradieted tending to sustain two of the counts. Held, That a verdict for the defendants was against the weight of evidence.</p> <p>2. -: evidence. The sale of intoxicating liquors may be . proved like any other fact by circumstantial evidence.</p>

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

Tried below before Gaslin, J. 1. Land purchased with partnership funds, though conveyed to one partner, is partnership property. Kino v. Weeks, 70 N. C., 372. 2. Though title is taken in name of wife of one partner, the land is subject to the debts of the firm. Price v. Hicks, 14 Ela., 565. Foster’s Appeal, 74 Pa. St., 391. Thompson v. Egbert, 3 Thomp. & C. (N. Y.), 474. 1 Hun., 484. Clark’s Appeal, 72 Pa. St., 142. In Be Cook, 3 Bliss., 122. Evans v. Hawley, 35 Iowa, 83.

<p>Error to the district court for Richardson county, Weaver, J., presiding.</p> <p>cited: 20 Am. Law Reg., 147. Whittem v. The State, 36 Indiana, 204. Cartwrights Case, 114 Mass., 239. State v. Blaalmell, 10 Rich., 35. Wilson v. The State, 57 Ind., 73. Bates’ Case, 55 New Hamp., 325. State v. Murry, 14 Cal., 114. Stephens v. Hill, 10 M. <& W., 28. State v. Holding, 1 McCord, 379. 15 Cent. Law Journal, 42. Ex parte Gh'ace, 12 Iowa, 215.</p> <p>cited: Biehley v. Commonwealth, 2 Dali., 574. Johnson’s Case, 1 Bibb., 578. Ex parte Kearney, 7 Wheat., 44. Cook v. People, 16 Illinois, 534. Pespubliea v. Oswald, 1 Dali., 343. State v. Booty, 32 N. J. Law, 404. Bergh’s Case, 16 Abb. Pr., N. S., 266. Com. v. MoBonall, 5 Cush., 367.</p>

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

This was an action brought in the district court of Thayer county, by Henry Bartlett, who, in his petition claiming title to certain real estate, set up that Elizabeth Bartlett, now deceased, was his wife, that she died in November, 1878, and that there were no children born unto them, having no father or mother living, and that James Roberts and others were brothers and sisters of deceased; that at the date of her death she held deeds to said property ; that she never…

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

Action by plaintiff to recover fees due him as county judge, in an action wherein Berger made complaint before him in a misdemeanor case. The defendants acknowledged themselves on the complaint “as surety and responsible for costs in this ease.” Judgment below before Weaver, J., in district court of Gage county, for defendants. cited: Morton v. Bailey, 1 Scam., 213. Davis v. Farmer, 28 Mo., 54. Moore v. Porter, 13 Sergt. & Eawle, 100.

Action for malicious prosecution, brought in the district court for Gage county. Trial below before Weaver, J., and judgment for defendants. cited 3 Gilm., 306. Cooley on,Torts, 187. Clements v. Ohrly, 61 Eng. Com. Law, 686. Cooley, 133. Wells v. Parsons, 3 Har., 505. Bliss Code PL, sec. 82. Miller v. Milligan, 48 Barb., 30. cited: 1 Greenleaf on Evidence, sec. 51. Malcomson v. Clayton, 13 Moore, 198.

Original action of mandamus to compel the levy of a tax to pay school district bonds. cited: People v. New-berry, 87 111., 41. Trumbo v. The People, 75 Id., 561. School District v. Gowee, 9 Neb., 53. Dean v. Gleason, 16 Wis., 18. Ellis v. Karl, 7 Neb., 389. Fisher v. S. D.No. 17, 4 Cush., 494. Mills v. Gleason, 11 Wis., 493. Panic v. Ghillicothe, 7 Ohio, 354. cited : School D. v. Pér-Icins, 21 Kan., 534. School District v. Thompson, 4 Minn., 280.

<p>1. Replevin: mortgaged property: evidence. In an action of replevin the defendant justified the taking and detention of the chattels replevied by virtue of a chattel mortgage. Plaintiff replied that the said mortgage, after the same was executed and before it was filed for record, had been altered in a material respect, to-wit: by erasing the description of the prox>erty and writing in the description of other and different property without the*knowledge or consent of the mortgagor; also, that the note and mortgage were obtained from the plaintiff by the defendant by fraud and false representations, in this, that the said defendant represented to the plaintiff that he had ownership of certain territory for the manufacture and salekrf certain patented articles; that for tho amount agreed upon, to-wit: three hundred dollars, he, the defendant, would sell and convey to the plaintiff a certain amount of said territory, whereupon plaintiff accepted and delivered the note and mortgage, and for no other consideration; and that said defendant had no right or title to the territory he attempted to convey to the plaintiff. At the trial plaintiff introduced, over the objection of the defendant, a paper, a copy of which is set out in the opinion. Held, Error.</p> <p>2. Verdict against Evidence. When the verdict is so clearly against the weight of evidence as to lead to the conviction that it was the result-of passion, prejudice, or inadvertence on the part of the jury, it will be set aside and a new trial granted. Fried v. Remington, 5 Neb., 525.</p>

Tried below before Weaver, J. claimed that evidence showed that on a day mentioned the parties had made a complete and final settlement of all accounts, indorsements, &c., including liability of plaintiffs in error as indorsers of notes sued on ; hence one who accepts with knowledge of all the facts the avails of a compromise made on his behalf, even without authority, thereby ratifies the settlement; and ratification in that manner of a part of the unauthorized transaction…

<p>Railroads: damage to stock: fencing. The farm of S. was bisected by tbe line of the railroad. The company fenced its line, as required by the act of June 22,1867. S. used the railroad fence on the south side of the road as the north fence of his enclosed pasture and corral. The corral consisted of about three acres, into which in the evening of the night in question he turned his twenty-three head of cattle. At the same time he looked along the line of the railroad fence part of the enclosure, and it was all up and apparently in good condition. In the morning a board was found broken off of this part of the fence, by means of which three of the cattle had escaped— gone on to the railroad track, where two of them had been killed and the other crippled by a passing train. The testimony as to the condition of the fence, as to its soundness, was conflicting, some witnesses swearing that it was rotten, others that it was sound. Verdict and judgment for S. On error, Held, That S. was not guilty of contributory negligence, and the finding and judgment upheld.</p>

<p>1. Railroads: right of eminent domain: evidence. "Where persons are shown, to he familiar with the value of a particular piece of land, across which a railroad has been built, they may be permitted to testify as to the value of such tract immediately before the location of the road, and to the value thereof immediately afterwards.</p> <p>2. -: case overruled. The third point in the syllabus of ' the F. E. & M. V. R. E., 11 Neb., 585, modified.</p> <p>3. Exception to Evidence. An exception must he taken to the admission of improper testimony if it is sought to review that question.</p> <p>4. Charge to Jury. Oral statements made by thejudge to the jury as to the law of the case must he excepted to, to he reviewed on error.</p>

<p>1. Railroad: eminent domain: damages: evidence. Where no objection was made in the court below to direct proof showing the amount of damages sustained by a land-owner by reason of the location of a railroad across his land, the objection is not available on error.</p> <p>2. -: -: ownership oe land. Where a railroad company condemns real estate as the property of a person named, it cannot on appeal from the award, at least without tendering an issue to that effect, disprove such ownership.</p> <p>3. -: -: appeal: pleadings. Where on appeal the only question is the amount of damages, no pleadings are necessary ; but if other issues are involved they must he pleaded to be available.</p> <p>4. Motion for Wew Trial. Objections to the introduction of evidence not assigned in the motion for a new trial cannot be considered by the supreme court. I</p> <p>5. Error: introducing testimony without objection. Where testimony proving the facts complained of was introduced without objection, error cannot be predicated upon objections to the same testimony afterwards introduced.</p>

<p>Malicious Prosecution : EVIDENCE. In an action for malicious prosecution, -where the testimony shows that the object of the criminal proceedings was not to vindicate the law and punish crime, but to coerce the payment of a debt, a malicious motive may be inferred.</p>

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

<p>Unless a bill of exceptions is authenticated in the manner required by law, the supreme court cannot receive and consider it.</p>

<p>1. Improvements on public lands are property, and a sufficient consideration to sustain a promissory note given for the purchase of the same.</p> <p>2. Promissory TTote: defense. The defense to a promissory note was, that it was given for property to which the title had failed. There was testimony tending to show that there was not an entire failure of title. Held, That the plaintiff was entitled to recover for such property, as the title had not failed, and a verdict for the defendant was set aside.</p>

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

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

<p>1. Parties: transfer of interest. In case of a transfer of interest during the pendency of a suit, the action maybe continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted. This substitution may be made as often as there is a transfer of interest.</p> <p>2. Sale: fraud. To avoid a sale, upon the ground that it is fraudulent as to creditors, the purchaser must have knowledge of the fraudulent purpose of the seller, or have notice of such facts tending to show a fraudulent purpose as would put a man of ordinary prudence on inquiry.</p>

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

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

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

<p>1. Constitutional Law. The act approved February 20,1879, for the repayment of taxes levied upon school lands the title of which was in the state, Held, Not in conflict with the constitution. Washington cownty v. Fletcher, 12 Neh., 356, adhered to. Lake, Ch. J., dissenting.</p> <p>2. Mandamus against County. County commissioners will not' he compelled hy mandamus to act upon claims against the county, where no estimates have heen made for taxes to he levied to pay the same, unless there are funds in the treasury for the payment of such claims.</p> <p>3. County Commissioners have no authority to audit claims against the county unless there are funds in the treasury or sufficient taxes have heen levied for the payment of the same.</p>

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

<p>1. Quo Warranto: jurisdiction or supreme court. The supreme court has jurisdiction in a proceeding hy quo warranto to try the right of the relator in the cause to the office of county treasurer. In such case the information must state facts showing that the relator is entitled to the office of which he claims to he unlawfully deprived.</p> <p>i. ■ — -: who may prosecute. A private person cannot appear as relator where he does not claim the right to the office. In such case the prosecution is on behalf of the public, and must be conducted by the proper public officer,</p> <p>3. Elections: county treasurer. Section. 10 of the election law of 1879, which provides that county treasurers shall be ineligible for more than two consecutive terms, has no retroactive effect.</p>

<p>Setting Aside Verdict. To justify the court in setting aside the verdict of a jury because it is not sustained by the evidence, it is not sufficient that the court, if sitting as a jury, would have reached a different conclusion from that arrived at by the jury, but the verdict must be clearly, wrong.</p>

, presiding. The action was to c'ancel certificates of tax sale, and tax deed issued thereon and to set aside proceedings in foreclosure of a pretended tax lien upon section 30, township 25, range 4 east, and to quiet plaintiff’s title to said real estate. Judgment below for defendant.

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

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

<p>Mills and. Mill Dams. In 1869, B. & Co. erected a mill at C., and built a dam across the Blue river for the purpose of obtaining sufficient power to propel the machinery of said mill. In 1870j they acquired the right to raise the dam to ten feet and two inches above low water mark. In 1879 the mill was burned and they then commenced the erection of a larger mill near the former site. In January, 1880, S. commenced the erection of a dam across the same river at a point some considerable distance above that of B. & Co. In July, 1881, B. & Co .sought to raise their'dam to eleven feet above low water mark, thereby overflowing the mill-site of S. Held, That they had no authority to raise their dam above ten feet and two inches.</p>

<p>Appeal from Butler county. Heard below before Post, J.</p>

<p>Partnership. As a general rule an action at law cannot be maintained between partners for work and labor or money'expended on account of the partnership.</p>

<p>1. Lease: forfeiture. In a lease for a term of years of a farm and a lot of cattle there was a condition that on the failure of the lessee to furnish the stock with “sufficient care, food, and water during the winter or feeding season,” the lessor had the right, “at his option,” to terminate it “and take immediate possession of said premises and stock.” Held, That this option could he lawfully exercised only within a reasonable time after the lessor learned of the lessee’s default.</p> <p>2. -. Case examined, and the verdict found to he contrary to evidence, and the instructions to the jury in conflict with the yule here stated.</p>

<p>Attorney’s Fee: evidence: want of to support finding. In the foreclosure of two mortgages, the court below having found, as against all of the defendants, that the plaintiff was entitled to recover an attorney’s fee, on a review of the evidence, Held, That as to two of the defendants the finding was unsupported, and the judgment erroneous.</p>

<p>1. Injunction: trespass. In case of a mere trespass, unless the threatened harm will be great, or the loss therefrom irreparable, and such as cannot be recompensed in damages by an acttion at law, an injunction will not be granted to prevent it.</p> <p>2. -. Under this rule the jietition examined, and Held not to state a cause of action for an injunction.</p> <p>3. -. Evidence examined and Held not sufficient to warrant an injunction.</p>

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

<p>Foreclosure: assignment of judgment in satisfaction. In 1872 a decree of foreclosure for the sum of $1,866.60 was rendered against B. and wife and in favor of B. & Co. In 1873 the wife of B. recovered a judgement for the sum of $872.60 against M. & M., which was stayed. After the expiration of the- time for reviewing the case on error, no hill of exceptions having heen assigned or filed, B. & Co. accepted $400, and released a portion of the mortgaged premises, and received the judgment against M. & M. for the remainder. Afterwards the attorney for B. and wife, in pursuance of a secret agreement with the attorneys of M. & M., agreed that a hill of exceptions should he signed in that case and filed as of the date of the rendition of the judgment. The judgment was thereupon tafeen to the supreme court and reversed, and on a new trial judgment was rendered in favor of M. & M. JHeld, That B. & Co. were entitled to enforce the decree of foreclosure to the extent of the judgment against M. &. M.</p>

<p>Usury: principal and agent. Where a person holding himself out as agent made a loan of $250, and retained $61 out of that sum for commissions, Held, That in the absence of a special denial by the alleged principal of such agency, a judgment finding that such agency existed will not be disturbed. Lakh, Get. J., dissents.</p>