Volume 14 — Nebraska Reports

Tried below before Savage, J. 1. A receiver of stolen property must have received the property from some person who is guilty of the‘larceny as a principal offender, and if it be shown that he received the property from another receiver, he cannot be convicted. 1 Wharton’s Criminal Law, § 990. 2 Bishop’s Criminal Law, § 1140 and cases cited. Desty’s American Criminal Law, § 1476. 2. The defendant was indicted for receiving property belonging to a corporation.

<p>Paymentburden of proof. Where an account is admitted to be correct, but it is alleged that it is paid, the burden of proof is upon the defendant to prove payment.</p>

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

<p>Ejectment: action on undertaking given on removal oe cause to supreme court. Action on a supersedeas undertaking in an ejectment case, taken to the supreme court on error. The language of the undertaking is, “ That the said Harbach during the possession of said property, will not commit or suffer to be committed any waste thereon, and if the judgment be affirmed, he, said Harbach, will pay the said Miller the value of the use and occupation of the property from the date of this undertaking until the delivery of the possession,” etc. Evidence on the trial not disputed, that at the date of the undertaking the property consisted of one and six or seven-tenths acres of land near the center of a large, enclosed, and cultivated field without improvements, except a root-house of but nominal value; hut sometime afterwards parties not in privity with either party to the said undertaking, erected two small frame dwelling houses on said premises. The trial court instructed the jury inter alia as follows: “2. The fact that the houses in question may not have been on the premises, or been fit for occupancy at the time when the bond was given, should the jury find such to be the fact, does not prevent the plaintiff from recovering the value of the rent and occupation, as found by the jury, after the erection of the houses, and while fit for occupancy,” and refused instructions requested by the defendant to the opposite effect. Held, error and a new trial awarded.</p>

Tried below before Post, J. contended that the act of March 1st, 1875, being subsequent to the act of 1867, is to be given its full force and effect; that the railroad company is not bound to fence against stock restrained from running at large by 1'aw; that the law charges the defendant in error with negligence, notwithstanding his hogs escaped without his actual fault; that the plaintiff in error is not charged absolutely, and if at ali, only in the absence of contributory…

<p>County: liability yob, costs. The county is not liable for defendant’s witness costs, where he is indicted for a felony.</p>

<p>Practice in Supreme Court. A motion for a rehearing must distinctly specify the grounds upon which it is based.</p>

<p>1. Levy of Taxes by County Commissioners: estimates. County warrants having been drawn on a fund in the treasury or tax levied for their payment, county commissioners have no authority to include in their estimates, and levy taxes in excess of the maximum fixed by law, an additional sum for the payment of such warrants as have not been paid out of former levies. In such case when the ordinary taxes are insufficient to pay the claim, the remedy provided by statute is to fund the debt.</p> <p>2. -: -. In a proper case, county commissioners will be compelled to include in their estimate of taxes for the current year a sufficient amount, within the limits fixed by law, to pay claims against the county.</p>

Original application for a writ of babeas corpus. 1. The pretended amendment was pretended to be passed at a special meeting of the city council, wbicb pretended special meeting was void for want of a sufficient call and notice of the time, place, and object of said special meeting, and for want of a journal record of the submission of said call and object, and the disposition made thereof. Bey v. Jersey City, 19 N. J. Eq., 412.

<p>Foreclosure of Mortgage: deceit by attorney. One P. employed certain attorneys to foreclose a mortgage in his favor upon certain real estate. They thereupon commenced an action and obtained a decree of foreclosure. Afterwards they claimed to have discovered that a portion of the mortgaged premises had been released and other real estate taken in lieu thereof, and they thereupon employed another attorney to obtain a decree setting aside the decree of foreclosure, to have the property claimed to he released declared discharged from the mortgage, and to foreclose the mortgage upon the remainder of lands first mortgaged, and upon that taken in lieu of that released. A decree was obtained as prayed. On appeal to the supreme court the plaintiff filed an affidavit wherein he stated that the second action was commenced and carried on without his knowledge or authority; that he was satisfied with the first decree; which facts were not denied. He also stated that he was informed and believed that his attorneys had purchased the land released, iri another’s name, for a trifling sum. Meld, That the decree in the second action would be set aside and the petition dismissed.</p>

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

Tried below before Weaver, J. 1. Action at law is proper remedy. Turner v. Althaus, 6 Neb., 54. JErskine v. Van Arnsdale, 15 Wallace, 75. Stephan v. Daniels, 27 Ohio State, 527. 2. Sale was illegal and void. Johnson v. Hahn, 4 Neb., 189. I/ynam v. Anderson, 9 Id., 368. 3. The payment of a demand under compulsion of legal process, accompanied by a protest, is not a voluntary payment. Atwell v. Zeluff, 26 Michigan, 118. Cooley on Taxation, pp. 568-9.

<p>1. Pleading: DEPARTURE. In an action of replevin commenced and tried before a justice of the peace, no bill of particulars was filed by the plaintiff, nor objection made by the defendant on that account. On appeal to the district court the plaintiff filed its petition, in which the property replevied was described differently from the description thereof in the plaintiff’s affidavit in the justice’s court. Held, No departure.</p> <p>2. Replevin: practice. The affidavit in an action of replevin before a justice of the peace described the property as “ one school-house about 14x24 feet in size, composed of sod and'lumber, now situated on the south-west quarter of section 29,” etc. On appeal to the district court plaintiff filed its petition, in which the property is described as “All the boards, planks, and lumber, and windows, benches, doors, and desks, which form a part of a certain school-house composed partly of sod and dirt, and partly of lumber, the dimensions of said school-house being about 24 feet in length, and 14 feet in width, and situate on the south-west quarter of section 29,” etc. Held, Not to set forth a different cause of action.</p> <p>3. Pleadings in District Court on Appeal from Justice of the Peace. In an action in the district court on appeal from a justice of the peace, the plaintiff filed its petition, to which the defendant filed his answer in the nature of a plea of the general issue, and afterwards filed a motion to strike the said petition from the files “for the reason that the said petition contains and sets forth a different cause of action than that set forth in the court below,” which motion was sustained. Held, Error.</p>

<p>Payment of Taxes under Protest: action to recover back: demand. Under the provisions of section 144 of the revenue act, when an alleged illegal tax is paid under protest to a county treasurer, the said treasurer receives it as the agent of the state school district, etc., for the benefit or under the authority or by the request of which the same was levied, as well as of the county, and in order to lay a foundation for legal proceedings to recover such illegal taxes paid under protest, demand thereof must be made of state treasurer, school district treasurer, etc., within the time limited by statute.</p>

<p>Bill of exceptions. Where an attorney of record, to -whom a hill of exceptions is presented for examination, proposes amendments thereto without objection, he cannot afterwards he heard to complain that it was not presented to him within the statutory time.</p>

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

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

<p>1. Referee: bill op exceptions. A trial was had before a referee, who made a report, and the testimony and exceptions taken before him were returned to the court, but not signed. Exceptions were filed to the report, which were overruled, and judgment entered on the report, and the judge signed the bill of exceptions taken before the referee. Held, That as no objection was made in the district court to the bill of exceptions because not signed by the referee, the objection will not be considered by the supreme court.</p> <p>2. Bill of Exceptions. The fact that the certificate of the judge does not show that the bill of exceptions contains all the testimony is not ground for quashing the bill.</p> <p>8. -. Where a bill of exceptions purporting to contain all the testimony is submitted to the adverse party for amendment, and such party certifies that he has no amendments to propose to the same, the court will presume that such bill contains all the evidence, notwithstanding the certificate may not fully so certify.</p>

<p>Error to the district court of Johnson county. Tried below before Weaver, J.</p> <p>On refusal to give ninth instruction asked for, cited: State v. Orotean, 24 Yer., 14. 4 Broom & Hadley’s Com., 631. Fisher v. The People, 23 111., 294. Nelson v. The State, 2 Swan, 237. Falk v. The People, 43 111., 331. Wharton’s Crim. Practice, sec. 711. On refusal to give fifth instruction asked for, cited Lyons v. The People, 68 111., 271. Seventh instruction given by court was erroneous. Wharton’s Ev., sees. 716, 734. Court’s ninth instruction was misleading. 2 Whart. Crim. Law, secs. 1019-1021.</p> <p>cited Olioe v. The State, 11 Neb., 1.</p>

<p>Criminal law. A verdict of guilty cannot be sustained where the evidence fails to show that the accused committed the offense charged.</p>

<p>Error to the district court for Johnson county. Tried below before Weaver, J.</p> <p>cited: Kirch v. B. & W R R, 17 Maryland, 32. Giles v. B. & M. R B., 55 N. H., 552. McDonnell v. P. & N. A. R. B., 115 Mass., 564. Bailroad v. Champ, 75 111., 577. Perkins v. Bailroad, 29 Me., 307. Jackson v. Bailroad, 25 Verm., 150. On contributory negligence, cited: Mimger v. T. B. B. Co., 4 N. Y., 349, 359. Cwrry v. C. & N. W. B. B. Co., 43 Wis., 670. Lawrence v. B. B., 42 Wis., 322. Albany Law Journal, 430. D. & M. B. B. Co. v. Miami Co., Ohio, 6 Central Law Journal, 436. Pittsburg, Ft. W. & C. B. B. v. Methven, 21 Ohio State, 586. B. & M. B. B. v. Wendt, 12 Neb., 77.</p> <p>cited, inter alia: Hinman v. Bailroad, 28 Iowa, 491. Bay City v. Austin, 21 Mich., 390. Bailroad v. Cory, 39 Ind., 48. Walsh v. Bailroad, 8 Nev., 110. Bailroad v. Peacock, 25 Ala., 229. Corwin v. Bailroad, 13 New York, 42.</p>

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

Ekroe to the district court for Washington county. Tried below before Sayage, J. On deposition of March, cited Payne v. Briggs, 8 Neb., 75. Verdict contrary to evidence, deceased being guilty of contributory negligence. Michigan Central v. Colman, 28 Mich., 447. Cooley on Torts, 346. Simmons v. Bail-road, 6 Ohio State, 105. Warner v. A. Y. Central B. B., 44 N. Y., 465. Bailroad v. McLaren, 62 Ind., 566. Cases cited by plaintiff in error are railroad cases and not applicable.

<p>1. Promissory Note: lex loci. A promissory note made in Nebraska, but payable in New York, Held, That its validity is to be determined by the laws of Nebraska.</p> <p>2. Usury. A party who makes a usurious loan through an agent takes the contract subject to all the instrumentalities employed by the agent in its consummation.</p>

Tried below before Pound, J. It was an action of ejectment brought by the railroad, their title being derived by patent from U. S. Government, of date June 28, 1875. Defendant claimed by virtue of pre-emption entry made by Daniel Doyle, Nov. 5, 1864, and from whom, the same having passed through several hands, the defendant finally acquired the improvements, and in 1872 homesteaded the land. cited: Fenwieh v. Gill, 38 Mo., 510. Quinn v. Kenyon, 38 Cal., 499.

<p>Error to the district court for Richardson county. Tried below before Weaver, J.</p> <p>cited: Gray v. Earl, 13 Iowa, 188. Bliss on Code Pleading, sec. 339. Erisbie v. Eangworthy, 11 Wis., 376.</p> <p>cited: Richardson v. Steele, 9 Neb., 483.</p>

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

<p>Error to the district court for Dixon county. Tried below before Barnes, J.</p> <p>cited: B. &. M. It. R. v. Pick & Son, 7 Neb., 242. Haskins v. Alcott, 13 Ohio State, 216. Ruth v. Lowrey, 10 Neb., 260.</p>

<p>Error to the district court for Douglas county. Tried below before Savage, J.</p> <p>cited: Du Laurens v. St. Paul R. R., 15 Minn., 49. Vcm-Jcirlc v. Railroad, 76 Penn. State, 66. Toledo & Wabash R. R. v. Wright, 34 American Reports, 285.</p> <p>Bisséll v. R. R. Co.,, 25 N. Y., 442. Dietrieh v. Perm. R. R. Co., 71 P. St., 432. Goetz v. R. R. Co., 50 Mo., 472. R. R. Co., ■v. Fitzgerald, 47 Ind., 79. 'Powell v. R R. Co., 25 Ohio St., 70.</p>

The action was one to foreclose a mortgage given by S. D. Beals to plaintiff in 1871. The defense was in substance that Beals had paid the note, which the mortgage was given to secure, to Robinson, attorney for Joseph Ward, the husband of plaintiff, and on trial below before Pound, J., defendant had judgment.

Tried below before Weaver, J. 1. The entry made by a pre-emptor, when once consummated by performance of the conditions and payment made, is equivalent to purchase at the date of such location. Therefore the title of Rider and his right to compensation is as though full payment had been made June 7th, 1870. Prior to this date defendant had made no location of its line on these lands.

<p>1. Verdict: evidence. Evidence examined and found sufficient to support the verdict.</p> <p>2. Error: exception. In order to lay the foundation for reviewing a ruling of the trial court on the admission of evidence, an exception is necessary.</p> <p>3. Affidavits. It is only where affidavits are not otherwise a part of the record that their incorporation in a bill of exceptions is required.</p> <p>4. Juror: prejudice. "When the conduct or appearance of a juror during the trial is relied on to show prejudice, its effect must necessarily be left almost exclusively to the judgment of the presiding judge.</p>

<p>Eeeoe to the district court for Colfax county. Heard below before Post, J.</p> <p>cited: Oranson v. Smith, 37 Mich., 309. Helm v. First National Bank, 43 Ind., 167. Crittenden v. White, 23 Minn., 24. Hollida v. Hunt, 70 111., 109. Note to last case, 22 Am. Reports, 67. Grover & Baker Sew. Mach.. Co. v. Butler, 58 Ind., 454.' Walter A. Wood Mowing-Machine Co. v. Caldwell, 54 Ind., 270. Gilman v. Philadelphia, 3 Wall., 713. Ex parte Robinson, 2 Bissell, 309.. McCulloch v. State of Md., 4 Wheat., 426. Gibbons v. Ogden, 9 Id., 1. Brown v. Maryland, 12 Id., 419. Sinnof v. Davenport, 22 How., 227. Ward v. Maryland, 12 Wall., 418. Woodruff v. Parham, 8 Id., 130.</p> <p>The right to use the thing patented in defiance of a state law for police regulation is not secured. Jordan v. Overseer, 4 Ohio, 295. Vanire v. Paine, 1 Har., 65. Patterson v. Kentucky, 7 Otto, 501. See Cooley Const. Lim., 713-716, as to “ police regulation.” The right to “ make,”' “ use,” “ vend ” being one thing, inseparable, and the fact, that the Supreme Court of the U. S. has recognized and sustained the light of a state to even prohibit the “ use” within its limits, it must by fair implication follow that a right to regulate the manufacture, use, or sale exists in the state. Gibbons v. Ogden, 9 Wheat., 210. Haskell v. Jones, 86 Penn. State, 173.</p>

<p>Error to the district court for Clay county. Tried below before Weaver, J.</p> <p>cited: State v. Jennings, 4 Ohio State, 418. Chapman v. Weimer, Id., 481. People v. Schuyler, 4 Conn., 173. Archer v. Noble, 3 Greenleaf, 418. 1 Parsons Contracts, 520. 2 Id., 773. Tootle v. Dunn, 6 Neb., 99. 2 Hilliard on Torts, 143.</p>

<p>Taxes: unincorporated banks. The bank made the following report to the assessor for assessment for the year 1881:</p> <p>Assessor for G. Precinct, Seward county, Nebraska.</p> <p>Name and Location oe bank or firm.</p> <p>Name, State Bank of Nebraska. Location, Seward, Neb.</p> <p>VALUE.</p> <p>1. The amount of property on hand or in transit.....,® 8,356 12</p> <p>2. The amount of funds in the hands/of other banks, bankers, brokers, or others, subject to draft.......... 15,962 46</p> <p>8. The amount of cheeks or other cash items, the amount thereof not being included in either of the preceding items.............................................. 267 32</p> <p>4. The amount of bills receivable, discounted, or purchased, and other credits due or to become due, including accounts receivable, and interest accrued but not due, and interest due and unpaid... 4,436 32</p> <p>5. Tbe amount of bonds and stocks of every kind, State and county warrants, and other municipal securities, and shares of capital stock of joint stock of other companies or corporations, held as an investment, or any way representing assets.... 000 00</p> <p>6. All other property appertaining to said business other than real estate (which real estate shall be listed and assessed as other real estate is listed and assessed under this chapter).............................. 000 00</p> <p>7. The amount of deposits made with them by other parties............................................... 29,022 22</p> <p>8. The amount of all accounts payable, other than current deposit funds.............................. 000 00</p> <p>9. The amount of bonds and other securities exempt by law from taxation, specifying the amount and kind of each, the same being included in the preceding fifth item............................................. 000 00</p> <p>The board of equalization thereupon fixed the amount, for which said unincorporated bank was assessable and taxable for said year, at §24,585.90. Held, Correct, and the action of said board sustained.</p>

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

Tried below before Savage, J. 1. Alleged agreement to give the mortgage was not in writing, nor was any memorandum of it signed or made by either Andrew or Alice Bevins. It was therefore void by the statute of frauds, without reference to where the title was. Nor was there any fact or circumstance to take the agreement out of the statute.

<p>Eeeoe to the district court for Douglas county. Tried below before Savage, J.</p> <p>cited: Siohle v. Marsh, 44 How. Pr., 91. Hinge v. Judson, 24 N. Y., 64. Boehne v. Murphy, 46 Mo., 57. De Colyar on Guarantees, 214, also 240 to 248.</p> <p>cited: Reed v. Fish, 59 Maine, 358. Lawton v. Mauer, 10 Bich. Law (So. Car.), 323. Wilde v. Haycraft, 2 Duvall (Ky.), 309. Bussier v. Chew, 5 Phila. (Pa.), 70. Boston & Sandwich Glass Co. v. Moore, 119 Mass., 435. Kay v. Groves, 6 . Bing., 276. Kay v. Groves, 3 Moore & Payne, 634. Oremer v. Higginson, 1 Mason, 323. White v. Reed, 15 Ct., 457. Congdon v. Read, 7 Bhode Is., 576. Aldrichs v. Higgins, 16 Serg. & Bawle, 212. Hall v. Rand, 8 Ct., 560. Sallee v. Mengy, 1 Bailey Law (So. Car.), 620.</p>

<p>1. Replevin: action on undertaking. The penalty in an undertaking in replevin fixes the limit to which a recovery can he had for the value of the property taken in an action on the undertaking.</p> <p>2. -: - — . Where executions in favor of five different creditors were at the same time placed in the hands of a sheriff, and levied upon the same goods which were claimed by a third party, and taken by replevin upon his giving an undertaking, judgment in replevin being rendered in favor of the sheriff, he assigned the undertaking to the execution creditors, who brought a joint action thereon. Held, That the action could he maintained.</p>

<p>Error to the district court for Lincoln county. Tried below before Gaslin, J.</p> <p>cited: Tyler on Ejectment, 75. 2 Washburn, 194-6. 2 Story’s Equity, 478. 6leage v. Hydi/n, 6 Heisk, 73. Morton v. Green, 2 Neb., 45.</p> <p>cited: High-town v. Williams, 38 Ga., 597. Dae v. Johnson, 3 111., 522. Conger v. Converse, 9 la., 554. JBrooJcs v. Chaplin, 2 Vt., 381.</p>

<p>Railroads: hamaoes from overflow of ■water. An instruction charging the jury “ that notwithstanding the fact that the railroad company when it constructed its bridge did so in a prudent manner, according to the best information it could obtain at the time of its construction, yet, if it subsequently appeared that its construction was such that damages would result from the gorging of ice against the bridge, and that damages would result to the plaintiff and other property holders in the vicinity of the bridge, by reason of the overflow of ice and water in consequence of said gorge, and the defendant had the time and the opportunity and means, by a reasonable effort on its part in that behalf, to avoid or prevent such damage, it was its duty so to do; and it was required to use all reasonable effort to avert such damages, and if it failed so to do it is liable to plaintiff for the damages sustained by him as resulted directly from such failure,” Held, Erroneous, and a new trial awarded.</p>

<p>1. Evidence. Where there is a conflict of evidence, if it be sufficient to support the finding, the judgment will not be disturbed.</p> <p>2. Statute of Frauds. The statute of frauds relative to the sale of land will not enable one who has accepted a conveyance of real estate to escape paying for it simply because the contract of purchase was not in writing.</p> <p>3. Deed: PKOOF of execution. The certificate of acknowledgment of a notary public, with his official seal attached, is sufficient proof of the due execution in another state of a deed of real estate lying in this state.</p>

<p>Error to the district court for Clay county. Tried below before Weaver, J.</p> <p>cited: Cole v. Saoket, 1 Hill, 516. Loby v. Barber, 5 Johns., 66. Day-tan v. Trull, 22 Wend., 345. Aloook v. Hopkins, 6 Cush., 484. Mills v. Lumsdas, 16 111., 161. Harris v. Johnston, 3 Cranch, 311. Jones v. Savage, 6 Wend., 658. Raymond v. Merchant, 3 Conn., 150. Smith v. Lockwood, 10 Johns., 367. 2d Dan’l Neg. Inst., 274. Edwards on Bills, 204. Jennison v. Parker, 7 Mich., 355. Phoenix Ins. Co. v. Allen, 11 Id., 501. Booth v. Smith, 3 Wend., 67. 2 Parsons Notes and Bills, 154-181. Edwards on Bills, 198,201-445. Redfield & Bigelow’s Leading Cases, 637-642. 2 Dan’l Neg. Inst., 275.</p> <p>cited: 2 Dan’l Neg. Inst., 276. Larzier v. Nevin, 3 West "Va., 622. Story on Notes, 550. Cornwall v. Gould, 4 Pick., 448. Ripley v. Green, 2 Verm., 129. Bishop v. Rowe, 3 M. & S., 362. 2 Parsons Notes and Bills, 183.</p>

<p>Officers : county surveyor : mal-administration. Repeated acts of removal of government section corner-stones by a county surveyor, under a claim of right so to do for the purpose of rectifying the original government survey, amount to willful mal-administration in office within the meaning of seo. 1, article II., chap 18, Compiled Statutes.</p>

<p>• Reheabing and further consideration of case reported 12 Neb., 75.</p>

The case was one wherein Hollingsworth caused a garnishee process to be served upon the plaintiff Fitzgerald, on the 15th of September, 1880, in a suit wherein Ezra Lines was defendant and Hollingsworth plaintiff, claiming that Fitzgerald was indebted to Lines on a contract for grading. Judgment below before Pound, J., in favor of Hollingsworth. cited: Taylor v. B. & M. It. JR., 5 Iowa, 114. Dwight v. Banlcs, 10 Met., 58. Grant v. Shaw, 16 Mass., 341.

This was an action brought in the district court for Lancaster county, by Meyer against Converse, Montcrief, and Houck, on an account for goods sold and delivered,, the petition alleging that said defendants were partners doing business under the firm name of A. W. Houck & Co. On trial before Pound, J., and a jury, verdict and judgment in favor of Meyer against Converse and Houck and in favor of Montcrief.

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

<p>1. Practice: findings. The code, see. 297, does not require the court to separate its findings of fact, but merely “ the conclusions of fact found separately from the conclusions of law. ” Maxwell, J., dissenting.</p> <p>2. Forcible Entry and DetaiAer. A party who has never been in possession of land cannot maintain an action against the owner of the fee for an alleged forcible entry and detention.</p>

<p>Error to the district court for Johnson county. Tried below before Weaver, J.</p> <p>cited: Osborn v. Farmers Bank, 16 Wis., 36. Bressler v. Pi/ndell, 12 Mich., 225. Brown v. Hazen, 11 Mich., 219. Walker v. Richards, 39 N. H., 259. Jaekson v. Raynor, 12 Johns., 291. Simpson v. Patten, 4 John., 422. Watson v. Ramdall, 20 Wend., 201. Stern v. Dinker, 2 E. D. Smith, 401.</p> <p>cited: Pose v. O’Linn, 10 Neb., 367. Olopper v. Poland, 12 Neb., 70. Dearborn v. Parks, 5 Greenleaf, 81. Serge v. Williams, 1 Saund., 211, note 2. Williams v. Leper, 3 Burr, 1886. Colt v. Pool, 17 Mass., 236.</p>

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

This was an indictment for rape committed upon one Coral Comstock, daughter of the defendant. The trial below before Post, J., in the district court for York county, resulted in a verdict of guilty, and sentence of prisoner to imprisonment in penitentiary for life, to reverse which he prosecuted this writ of error. Affidavits for continuance were sufficient. Jameson v. Butler, 1 Neb., 118. Johnson v. Dinsmore, 11 Neb., 393. Williams v. The State, 6 Neb., 337.

<p>Bastardy: costs. One J. was tried under the bastardy act, and the jury returned a verdict of not guilty. The court therefore rendered judgment against him for the costs incurred by him. Held, That as the proceeding was in the nature of a civil action to enforce the performance of a civil and moral obligation, the support by a father of his child, the court had authority, under sec. 623 of the code, to apportion the costs.</p>

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

Tried below before Pound, J. 1. Summons should have been quashed. Humphrey v. Candee, 2 Cow., 509. Burgess v. Stilt, 12 How. Pr., 401. 2. The equity of redemption cannot be reached by garnishment. Drake on Attachment, secs. 560, 561. Williams v. Railroad, 36 Maine, 201. Hassie v. God With Us, 35 Cal., 378. cited: Fiwnell v. Burt, 2 Handy, 207. Casly v. Fenstemaker, 14 Ohio State, 457. Faulkner v. Meyers, 6 Neb., 418. Wheeler v. Newbold, 16 N. Y., 392.

Tried below before Pound, J. The action was one of attachment, and the error complained of was in the overruling of a motion by plaintiff to confirm the sale of real property attached.

Tried below before Weaver, J. Including two separate and distinct tracts in deed creates no presumption that they were assessed and sold as one tract. Laws of 1869, § 62, p. 203. Nelson v. Boimtree, 23 Wis., 371. Silliman v. Frye, Gilm., 664. The deed' was admissible. As to seal, see Huey v. Van Wie, 23 Wis., 613. Putney v. Outler, 11 N. W. R., 437. Greenleaf on Evidence, § 503. Gen. Stat., § 32, p. 237. On limitation of actions, cited Cooley on Taxation, 376.

<p>• 1. Election contest: appeal: bond. In a contested election case, an appeal was taken to the district court, the bond being signed by sureties, but not by the appellant. On motion to dismiss, because the bond was not filed by the appellant, the motion was sustained. Held, To be error.</p> <p>2. Appeal: costs: stipulation. Where a party enters into a stipulation to pay all costs in case no appeal is taken, and fails to pay the costs, he cannot insist upon the stipulation to prevent an appeal.</p>

<p>Railroads: guards around cuts. A railroad company is not required within the limits of a city, to place guards around a cut, away from a public thoroughfare, to prevent animals, grazing near the cut in violation of law, from falling down the bank.</p>

<p>Practice in justices’ court: vacation of judgment. A defendant having entered an appearance to the action by filing a motion for security for costs, hut not appearing on the day of trial, is not entitled as of right, under sec. 1001 of the code, to have the judgment against him set aside.</p> <p>Error: waiver of. Taking an order for leave to plead in the district court after an erroneous reversal of the judgment of a justice of the peace, the order being afterwards vacated, is not a waiver of the error, nor does it estop a party from prosecuting error to this court on the judgment of reversal.</p>

<p>Error to the district court for Seward county. Tried below before Post, J.</p> <p>cited: Greenleaf on Evidence, sec. 51. 1 Wharton’s Evidence, sec. 29, and note 3. Mailler v. Propeller Co., 61 N. Y., 312. Maginn v. Railroad, 115 Mass., 240. Gov. v. Campbell, 17 Ala., 566. McCartney v. The Territory, 1 Neb., 121. Bank v. Whinfield, 24 Wend., 419. Jackson v. Tuttle, 7 Cowen, 364.</p> <p>Plaintiffs did not establish a fulfillment of warranty. Schultz v. Lepage, 21 111., 159. Berdell v. Berdell, 80 111., 607. Christ v. Wray, 76 111., 205. R., R. I. & St. L. R. R. Co. v. Rafferty, 73 111., 62. Richey’s testimony was competent. Brooks v. McDonnell et al., 41 Wis., 139. Taylor v. Boggs, 20 O. S., 516. If irrelevant and incompetent, yet by plaintiffs’ cross-examining Richey upon all his testimony, and by calling Gerrans to disprove the same matter, is a waiver of the error. Oropsey v. Averill, 8 Neb., 158. 1 Greenleaf Ev., sec. 421. Flagg v. Mann, 2 Sumn., •487. • Donalson v. Taylor, 8 Pick., 390. Bu/rden v. People, 26 Mich., 165.</p>

Clark recovered judgment against Yearnsbaw in the county court of Lancaster county. Execution issued and returned nulla bona. Affidavit for garnishment and summons issued to Foxworthy, garnishee. Finding by the court that Foxworthy had $227 belonging to Yearnshaw, etc., and an order that same be paid into court, and judgment that Clark have and recover of and from Foxworthy the said sum and costs.

<p>1. Practice: submitting cause on pleading. Where a cause is submitted to the court on the petition, answer, and reply without evidence, only such matters of defense in the answer as are admitted by the reply, either by a failure to deny or by admission, are to be considered as established.</p> <p>2. -: reply : admissions. An admission in a reply that the title to certain lands mortgaged was at the time of the execution of the mortgage in the United States, is not a valid defense, provided the mortgagor afterwards acquired title to the same.</p>

<p>Appeal from Justice of the Peace. On the facts stated in the record, Held, That an appeal would lie from the judgment of a justice of the peace to the district court.</p>

<p>Error: judgment against evidence. Where the only questions presented to a reviewing court for determination are questions of fact, the judgment will he affirmed, unless it is clear that it is against the weight of evidence.</p>

<p>Error to the district court for Dixon county, where the ■cause had been removed on change of venue, and tried before Savage, J.</p> <p>cited: State v. Keim, 8 Neb., 67. First National Bank v. Gandy, 11 Neb., 431. Welton v. Adams & Co., 4 Cal., 37. Dale v. Bwrleigh, 1 Dak., 227. Hartwell v. Page, 8 Wis., 53. Burmagim v. Tallant, 29 Cal., 503. Poorman v. Mills, 35 Cal., 118. Bank of Orleans v. Merrill, 2 Hill, 295. Miller v. Austin, 13 How., 218. Naglee v. Palmer, 7 Cal., 543. Payne v. Gardner, 29 N. Y., 169. Downs v. Phoenix Bank, 6 Hill, 299. Robinson v. Gardiner, 18 Grat., 95. Downs v. Phoenix Bank, 6 Hill, 297, 299. Parley v. County of Muskegon, 32 Mich., 144. Young v. Hibbs, 5 Neb., 433. Elliott v. Miller, 8 Mich., 132. Ward v. Sehool District, 10 Neb., 294. State v. Sheldon, 10 Neb., 455.</p> <p>cited: The State v. Prather, 44 Ind., 287. State v. Grammar, 29 Ind., 530.</p>

<p>1 Attachment: LETT: irregularities. The sheriff levied an order of attachment on certain lands as property of the defendant. After schedule, appraisement, and return of writ, he applied to the court on his own motion for leave to amend his return. Without any showing the court granted such leave. Whereupon the sheriff canceled his schedule, appraisement, and return, and returned said attachment — no property found to attach, etc. Held, Not good practice, and that in a proper case this court would set aside such cancellation of the original return and restore the levy. But held,further, That such error did not affect the subsequent proceedings in the case, there being an appearance by the defendant.</p> <p>2. Promissory Note: signature by marks. Action on promissory note for 51500.00 purporting to be signed by defendant, decedent, by mark. Proof, that decedent was very old, infirm, and nearly blind ; that he owed plaintiff thirty dollars, borrowed money, for which he was willing to give his note; that plaintiff presented the note in suit, representing it to be for said sum of thirty dollars, whereupon decedent authorized plaintiff to write his name to the note, and then made his mark to said signature, without reading the note. After verdict for defendant, plaintiff assigned for error that he was entitled to judgment for the thirty dollars, borrowed money, but did not offer to amend his petition. Judgment for defendant affirmed.</p>

<p>1. Practice in Supreme Court. Every ease submitted to this court for review should contain a transcript of the pleadings constituting the issue tried in the district court, otherwise the judgment of the court below will be affirmed.</p> <p>2. Trial: answer or witnesses : objection. When upon a trial a question is put to a witness and answered, although the question or answer, or both, may he afterwards objected to by the opposite party, and the objection sustained by the court, unless such answer be suppressed or withdrawn from the jury by the court, by order or instruction, such answer may be considered by the jury, and, after verdict, will be presumed to have been properly considered by them.</p>

<p>Married Women. Since the act of 1875 [Laws, p. 88] there is no law of this state subjecting the separate property of a married woman to execution or sale for any debt of her husband whatever.</p>

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

<p>1, Railroads: RIGHT op way : title. Where a railroad company institutes proceedings and condemns a right of way across real estate, it cannot, on appeal to the district court, disprove the . title of the person to whom the damages were awarded without pleading his want of title.</p> <p>2. -: -: -. The word “owner” as used in the statute applies to any person having an interest in the estate.</p>

<p>1. Continuance. Ordinarily the decision of motions to continue causes is left to the discretion of the particular court to which they are addressed. It is only where such discretion has evidently been exercised unwisely or abused, to the prejudice of a party, that a reviewing court will interfere.</p> <p>2. -: amudavit bob. The statement of facts in an affidavit for a continuance should be specific of acts done, or of excuses for not doing them, and given with such particularity that an indictment for perjury would lie in case of its being false.</p>

<p>Error to the district court for York county. Tried below before Post, J.</p> <p>cited: Biller v. Roberts, 13 Sergeant & Rawle, 60. Stevens v. Brown, 3 Vermont, 420. Blythe v. Richards, 10 Sergeant. & Rawle, 261. Benny v. Willard, 11 Pickering, 519. Whitaker v. Sumner, 7 Pickering, 551. Granger v. Clarh, 22 Maine, 128. Coohv. Darling, 18 Pickering, 393. Brownv. Turner, 12 Alabama, 752. Lightsey v. Harris, 20 Alabama, 411. Cooper v. Sunderland, 3 Clark, 114. Phillips v. Mwéll, 14 Ohio State, 133.</p> <p>cited: Bond v. Wilson, 8 Kan., 228. Porter v. C. & N. W. B. B., 1 Neb., 14. Watson v. Watson, 6 Conn., 334. Ports v. Table Mountain, 10 Cal., 441. Carr v. Commercial Banh, 16 Wis., 50.</p>

<p>Error to the district court for Nuckolls county. Tried below before Weaver, J.</p> <p>cited: Kittle v. Shervin, 9 Neb., 324.</p> <p>cited: People v. Auditor General, 30 Mich., 12. Otoe County v. Gray, 10 Neb., 568. Pettit v. Black, 8 Neb., 52. Feet v. O’Brien, 5 Neb., 360.</p>

<p>1. Bonds: registration. In registering and certifying bonds issued under the act, “ To authorize the issue of county bonds in certain cases,” approved Feb. 19, 1877, the auditor and secretary of state have no right to review the action of their predecessors upon the original bonds.</p> <p>2. -: vote oe people. In the issue of bonds under this act no vote of the people is required.</p>

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

<p>Principal and agent: A letter from a principal to his agent directing a sale of his real estate is sufficient authority to the agent to sell such property according to the terms of the writing; hut if the authority is denied, and the letter is lost, its contents must he clearly proved to sustain a contract made hy the agent.</p>

Post, J., enjoining the registration of $53,000 coupon bonds of Butler county, and Spurk precinct bonds to the amount of $8,500, and ordering the defendant railroad company to deliver up said bonds, and canceling and annulling the same. The donation was good, and commissioners had power to determine which of the two companies should receive-the aid. Leiosv. The County Com., 12 Kan., 206.

, the defendant in error had recovered a judgment for $3,500 on account of injuries received in the manner stated in the opinion. cited: 1 Thompson on Negligence, 361. Plyth v. Topham, Cro. Jac., 158. Push v. Prainard, 1 Cowen, 78. Howland v. Vincent, 10 Mete., 373. Houmel v. Smyth, 7 C. B. (new series), 781. Pinlcs v. P. B. Co., Best & S., 244. Hardcastle v. B. B., 4 Hurl. & N., 67. Vale v. Bliss, 50 Barb., 358. Bobbins v. Jones, 15 C. B. (N. S.), 221.

The action was one of ejectment, brought by Henry B. Kepley against Nelson Tredo and Samuel,Irwin. Tredo was in possession as tenant of the land, having rented the same of John Irwin, acting as the agent of Samuel Irwin. Service was had on Tredo personally, and on Samuel Irwin, by publication. S. J. Stevenson appeared as attorney for the latter, and filed an answer, verified by John Irwin, agent for Samuel Irwin.

This was an action commenced before the board of county commissioners of Dodge county, on the 23d day of May, a.d. 1882, by the defendant in error against said Dodge county for an allowance of two claims, one for fees for services rendered by himself as sheriff of said county, in a certain preliminary examination wherein the State of Nebraska was plaintiff and Frank M. Lane defendant, amounting to $76.30; and the other for fees of James Huff as justice of the peace, rendered…

A public road was located over land of Miles. He asked for $212 damages; was allowed $48; appealed, and in district court, Weaver, J., recovered $60. The county brought the case here for review on a petition in error. The statutes bearing on the subject are as follows: Compiled Statutes, chapter 78: Sec. 39.

<p>Practice: opening judgment. The relief provided for by see. 82, title IV, part II. of the Oompiled“Statutes, is a right earned by the defendant, by claiming the same, and doing the things therein required of him within the time limited by statute, and is not a question of power on the part of the court.</p>

Heard below before Savage, J. Stebbins was not an innocent purchaser. Savage v. Hazard, 11 Neb., 323. The lien does not exist by virtue of the assignment but by virtue of the judgment, and notice of the judgment carries with it notice of the liens existing by virtue of it, hi whose-soever favor they may exist, and defendant Stebbins cannot be heard to deny that he had notice of this lien when the judgment was of record unsatisfied and unreversed.

<p>Precinct Bonds. A proposition for precinct bonds to a railroad company provided that they Should be issued “ when said road shall be graded, tied, and ironed, and completed ready for the running of trains, and trains running thereon, etc., on or before the 1st day of January, 1880,” Held, That the company, on compliance with these conditions within the time specified, was entitled to the bonds.</p>

<p>Internal Improvements. A water grist mill erected for public use, the rates of toll to be determined by the county commissioners, and being subject to regulation by the legislature, is a work of internal improvement within the meaning of the act of 1869, and bonds voted to aid its construction are valid. Oobb J., dissenting.</p>

<p>A verdict or judgment will not be set aside as being against tbe • weight of evidence unless it is clearly so.</p>

This was an action of ejectment, brought by plaintiff in the district court of Lancaster county, to recover, possession of, block 29 in the city of Lincoln.

<p>Taking Instructions to Jury Room. Upon the trial in the district court, the plaintiff prayed a certain instruction to the jury, which the court took, and upon the left hand margin wrote the words, 11 Asked for by defendant, refused,” andsigned the same officially, which instruction the court then read to the jury, and handed the same to them, and permitted them to take the said instruction to their room and have it with them while deliberating upon their verdict, over the objection of the defendant. Held, Not reversible error, and the verdict for the plaintiff upheld.</p>

<p>Appeal: undertaking: action. Suit brought oii an undertaking entered into for the purpose of appealing from the judgment of a justice of the peace. Held, That the defendants were estopped to deny that an appeal had been taken in the case, in contradiction of their undertaking, executed in conformity to the statute, for the purpose of perfecting an appeal, although no appeal lay from the judgment of the justice.</p>

<p>Railroad: appeal prom award : title. Where a railroad company has condemned certain real estate as the property of A, it cannot pn appeal from the award of damages prove that he is not the owner without pleading such want of title.</p>

<p>1. Negotiable instruments: delivery. One M., as accommodation maker, signed with one Meads a negotiable promissory-note, payable to W. W. did not accept the note for the purpose for which it was intended, but endorsed the same, and delivered it to Meads to enable him to negotiate it. Held, That there had been sufficient delivery of the note to the payee.</p> <p>2. -: -: payment not presumed. An accommodation note endorsed by the p'ayee and delivered to one of the makers before due to be negotiated, is not presumed to have been paid, and a person purchasing the same in good faith, may recover thereon.</p>

<p>1. Real property: color oe title. A tax certificate is not sufficient to constitute color of title to real estate.</p> <p>2. Judicial sale: coneirmation. An order confirming a sale of real estate, where there is no fraud or collusion, cannot be attacked collaterally.</p> <p>3. mortgage foreclosure: sale to appraiser: era-itd: redemptioh. Where a defendant acquired title to certain real estate by the foreclosure of a mortgage, and it appeared that the premises had been .appraised at a sum greatly below their value, and were sold to one of the appraisers, who conveyed to the holder of the mortgage, Held, That as the legal title had passed to the purchaser, ejectment would not lie against him; but as there was testimony tending to show collusion amounting to fraud between the appraiser and actual purchaser, the plaintiff, upon payment of all costs, would have leave to amend his petition to redeem the premises, upon the payment to the defendant of all moneys and taxes paid by him on said land, together with interest thereon.</p>

<p>Error to the district court for Saline county. Tried below before Weaver, J.</p> <p>cited: Hadley v. Baxendale, 9 Exch., 341. Paine v. Sherwood, 9 Minn., 315. Booth v. Spuyten Buyvil Co., 60 N. Y., 487, Gilbert v. Kennedy, 22 Mich., 117. 2 Wait’s Actions and Defenses, 454. Griffin v. Colver, 16 N. Y., 489.</p> <p>cited: French v. Bamge, 2 Neb., 254. Howe v. Bryson, 44 Iowa, 159. McFkoen v. McKinnon, 11 N. W. R., 828.</p>

<p>Final Judgment: In an action of ejectment the journal entry , in the following form, to-wit: “Now upon this day this cause came on for hearing, the right of jury being waived, and trial had by the court. After listening to the evidence of sundry witnesses and hearing the argument of counsel, and the court being fully advised in the premises, it is considered by the court that said James Bell should have judgment entered, and stand as against the said defendant. And that the plaintiff recover of and from the defendant his costs herein taxed at §......” Reid, Not a final judgment, and the case remanded for judgment.</p>

<p>1. School District: bonds. In 1873, in pursuance of a request in writing of five persons purporting to be legal voters, a special meeting was called and held of the electors of school district No. 70, of Seward county, and bonds voted, which were sold, and of which the district had the avails. He Id, That as the election was held by bona fide electors of the district, who did .not object to the qualifications of the persons signing the request, the court would presume that they possessed the necessary qualifications.</p> <p>2. -: -. The power to borrow money implies the power to issue bonds or other evidence of indebtedness for its payment.</p> <p>3. -: -: sale: usury. The sale of a school bond for less than its face value, if it is not a device to evade the usury-laws, is not usury-.</p>

<p>Attorney. The ordinary powers of an attorney do not authorize him to enter into an agreement to take about one-third of the face value of a valid judgment in favor of his client, and accept payment of the same in a debt owing by such attorney.</p>

<p>1. Damage to Animals. In an action for the value of a colt alleged to have been injured by the defendant, the only evidence to sustain the action was a threat of the defendant to shoot the plaintiff’s stock if he did not keep it at home, and the fact that the injured animal was found on the defendant’s premises. The jury having found for the defendant, Held, That as there was no testimony tending to show that the defendant committed the injury, the verdict would not be set aside.</p> <p>2. Trial: statement or attorney. On the trial of a cause in. the district court, appealed from a justice of the peace, the attorneys in the case have no right to state to the jury what the verdict was before the justice.</p> <p>-3. Mew Trial. As a general rule newly discovered evidence which is merely cumulative is not cause for a new trial.</p>

<p>Appeal from Platte county. Heard below before George W. Post, J., confirming report of ~W. H. Hunger, referee.</p> <p>cited: Paul v. Detroit, 32 Mich., 108. Mahoney v. Spring Valley, 52 Cal., 159.</p>

<p>Rehearing of case reported 11 Neb., 118.</p> <p>cited: Ransom v. Solivíela, 13 Neb., 73. Orowell v. Ploracele, 12 Neb., 625. Sackett Instructions, 168. Bump on Fraud, 165. On res adjudieata cited: Wales v. I/yon, 2 Micb., 276. Kelly <o. Donten, 70 111., 385. 1 Green. Ev., 522. Key v. Dent, 14 Ind., 86. Bump on Bankruptcy, 260. Russel v. Place, 94 U. S., 606. "Wells, § 17. Duchess of Kingston’s case, 11 State Trials, 198.</p> <p>on question of fraud, cited: Cadbury v. Nolen, 5 Penn., 320. Dewart v. Clement, 48 Penn., 413. Burrows v. Stebbins, 26 Vt., 650. 8haw v. Thompson, 43 N. H., 130. Like v. Morris, 30 Conn., 201. Dexter v. Perkins, 22 111., 143. Vanee v. Boynton, 8 Cal., 554. Van Polt v. Pettier, 10 Cal., 394. Bump’s Fraudulent Conveyances, pp. 131 — 6. Webster v. Peek, 31 Conn., 495. Kitdhmer v. Watson, 24 111., 591. Monroe v. Hursey, 1 Oregon, 188. Res adjudieata: Wells, §§ 14, 282, 440. MoReady v. Rogers, 1 Neb., 127. Benz v. Hines, 3 Kan., 397.</p>

Heard below before Savage, J. First decree was final. Kent Com., 316. Beisel v. Art-man, 10 Neb., 181. Jones on Mort., 1600. Wilson v. Daniel, 3 Dali., 401. State v. Dodge Co., 10 Neb., 24. Plaintiff in this case had no notice that application would be made for a second decree, and was not present in person or by counsel when it was rendered. Entry of record decree was no vacation of fact. Nuckolls v. Irwin, 2 Neb., 60.

Tried below before Weaver, J. The plaintiff in the petition alleged as follows: ‘‘The said John O’Hara, plaintiff, complains of the said •Osceola O. Wells, defendant, and for cause of action says: That the said plaintiff, before and at the times hereinafter mentioned, had had the bone and ligaments of his left arm broken and fractured and displaced, and that the said defendant was a physician and surgeon, practicing as such in the city of Beatrice, Gage county, Nebraska;…

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

<p>Appeal from Johnson county. Tried below before "Weaver, J.</p> <p>The judgment is not a bar. Hull v. Blalce, 13 Mass., 155. Weller v. Moore, 49 Mo., 229. Wharton’s Ev., § 781. 3 Blackstone, 296. Freeman on Judgments, § 261. Home v. Brown, 16 How., 365. Pillow v. Elliott, 25 Texas, 323.</p> <p>cited: Hendrix v. Pieman, 6 Neb., 523. Covington v. Sargent, 27 Ohio, State, 233. Bay v. Valitte, 25 Ind., 43. Sims v. Zone, 24 Penn. State, 243.</p>

<p>Practice. The title to the land in controversy having been obtained by the plaintiff in error through a conveyance from the defendant, in whom it was found to be by the judgment sought to have reversed, to the end that the litigation may cease, and each party left secure in his rights, it is ordered that the petition in error be dismissed at the costs of the plaintiff in error.</p>

<p>Error to the district court for Cass county. Tried below before Pound, J.</p> <p>on question of damages and method of examining witnesses, cited: Railroad Co., in Matter of, 53 Barb., 457. 35 Howard’s Pr. (N. Y.), 420. R. R. Co. v. Hwmmel, 27 Pa. St., 99. R. R. Co. v. Lazarus, 28 Pa. St., 203. M. V. R. R. Co. v. Doran, 17 Minn., 188. R. R. Co. v. Payne, 16 Barb., 273. R. R. Co. v. Young, 33 Pa. St., 175. The damages are to be shown by facts, but must be estimated by the jury, and not of opinions of witnesses. Evansville R. R. v. FitzPatrieh, 10 Ind., 120. Farrard v. C. R. R., 21 Wis., 435. Harrison v. Iowa R. R., 36 la., 323. Alabama R. R. v. Burkett, 42 Ala., 83. F. E. & M. V. R. R. v. Whalen, 11 Neb., 587. City of Parsons v. Lindsay, 26 Kan., 430. Damages outside of right of way. Eaton v. R. R., 59 Me., 520. Mills on Eminent Domain, see. 220. Perry v. Worcester, 6 Gray., 544.</p> <p>on competency of witnesses, cited: Smalley v. R. R., 36 Iowa, 571. Snyder v. R. R., 25 "Wls., 60. Dalzell v. Davenport, 12 Iowa, 440. Damages: R. R. v. MeComb, 60 Me., 290. R. R. v. McClure, 29 Ind., 536. R. R. v. Lee, 13 Barb., 169. Mason v. R. R., 31 Me., 215. Mills on Eminent Domain, secs. 165, 168. Cooper v. Randall, 59 111., 317.</p>

<p>Two cases on error and appeal from the district court of Seward county. Heard below before George W. Post, J.</p>

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

<p>Error to the district court for Gage county. Tried below before Weaver, J.</p> <p>cited: Conrad v. Gibbon, 29 Iowa, 120. Downey v. Beaoh, 78 111., 53. Tyler on Usury, 204-217. Bulloch v. Taylor, 39 Mich., 137.</p> <p>cited: Mo. Valley Ins. Co. v. Kittle, 1 McCrary, 234. Dow v. Updihe, 11 Neb., 95.</p>

Tried below before George W. Post, J. Demand must be made after expiration of lease, and while the tenant holds unlawfully. Prickett v. Biller, 16 111., 96. Doran v. Gillespe, 54 111., 366. Clasp v. Paine, 18 Maine, 264. Smith v. Bowe, 31 Maine, 212. The parol evidence of contents of notice to quit was inadmissible. 1 Greenleaf, § 558. cited: Maxwell’s Justice, 249. Swan’s Justice, 249. Leutzey v. Herchelrode, 20 Ohio State, 334.

<p>1. Legislature: clerks to committees. There is no law in this state authorizing a standing committee of either house of the legislature to employ a clerk, therefore a voucher for services so rendered, duly signed hy the officers of the senate, will not authorize the auditor to draw his warrant for the amount so certified.</p> <p>2. '-: -. A clerk rendering services to two committees is not entitled to double compensation therefor.</p>

<p>1. Justice of Peace: bill or particulars. Where a promissory note was left with a justice of the peace who copied the same into his docket and issued summons thereon, Held, A sufficient bill of particulars.</p> <p>2. -: judgments. A justice of the peace having in his possession the evidence of indebtedness upon which the action is brought may render judgment on such evidence of indebtedness in the absence of any of the parties.</p> <p>3. -: -: error without prejudice. A justice must wait one hour after the time set for trial before rendering judgment against a defendant by default; but if he render judgment before the expiration of the hour, and the defendant does not thereafter appear, and it is apparent that there is no defense to the action, it is error without prejudice.</p> <p>4. Summons: service., Whore two defendants were served with summons separately, Seld, Tnat the words “ with all the endorsements thereon,” although appearing but once in the return of the officer, applied to both copies of the summons.</p>

<p>Replevin: finding: judgment. In. an action of replevin, where the goods had been delivered to the plaintiff, the justice before whom the case was tried made a finding as follows: “I do find for the plaintiff and against the defendants for the goods and for all the costs of this action by her expended.” Held, Sufficient to sustain a judgment in favor of the plaintiff.</p>

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

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

<p>Error: vacation of judgment: final order. An order of a district court vacating its own judgment during the term at which it was rendered, is not a final order, and therefore is not reviewahle hy proceedings in error.</p>

<p>1. Error: final obdeb. An order of a district court requiring an attorney in an action to pay money alleged to have Been collected By Bim into court “for tBe use of tBe plaintiff * * * and in default tBat execution issue tBerefor,” is a final order and may Be reviewed By proceedings in error.</p> <p>2. -: peactice. TBe want of a Bill of exceptions or a motion for a new trial is not sufficient to warrant a summary dismissal of proceedings in error.</p> <p>3. Attorney. TBe rigBt of an attorney to enter an appearance for a party in an action can Be called in question only By tBe party Bimself.</p>

This was an action brought in tbe district court of Douglas county against Wright, as a justice of the peace, and the sureties on his official bond, for the wrongful issuance of an attachment. Judgment below in favor of defendants, before Neville, J., and cause brought here for review on a petition in error. 1. The justice is liable where he acts beyond the limit of jurisdiction given him by law, either as regards the subject matter, person, or mode of proceeding.

<p>1. Railroads: damage to timber by fire: ownership of LAND. In an action in the nature of an action on the ease for the negligent use of a locomotive engine by the servants of the defendants by reason of which the timber land of plaintiff was damaged by fire, the plaintiff alleged ownership of the timber land, which was denied by the defendant. Held, That proof that plaintiff had been in the possession of the premises for a number of years next before and at the time of the injury was sufficient evidence of title prima fade.</p> <p>2. Competency of Juror. The whole of the examination, and all of the answers of a juror upon such examination, as to his competency to serve as a juror in a given ease, should be considered together, and if upon such consideration he seems to be competent his challenge for cause by one of the parties should be denied.</p> <p>3. The opinion or estimate of a witness of the amount of damage to the owner of a tract of timber land, or to the land itself, caused by a fire running through it, is not admissible as evidence.</p> <p>4. New Trial: taxation of costs. An erroneous overruling by the trial court of a motion of a defendant for the re-taxation of costs in a case is not a ground for setting aside the verdict of the jury and granting a new trial in the case.</p>

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

Kennard, and by him indorsed in the manner stated in the opinion.

Bill of exceptions from Cuming county district court on behalf of plaintiff filed under the provisions of §§ 515 and 516 of the criminal code. cited: State v. Ferm, 41 Conn., 590. Parker v. The State, 39 Ala., 365. U. S. v. Barry, 4 Cranch, 606. McDevil v. The State, 20 Ohio State. 23 Bishop Statutory Crimes, 443. Comp. Stat., 727, § 412. Wharton’s Grim. Law, 614. State v. Watrous, 13 Iowa, 489.

<p>1. Pleading: construction: presumption. It is a reasonable presumption, and one indulged in the construction of pleadings, that the pleader has stated his case as favorably for himself as the facts warranted. Rule applied.</p> <p>2. Practice: amendment or pleading. Where the ends of justice seem to demand it, leave will be given in the supreme court to amend a petition so as to fully state the cause of action.</p>

Tried below.before Barnes, J. 1. Arbitrators did not pass on all issues submitted to them. Buntam v. Curtis, 27 111., 374. Yudor v. Scovell, 20 New Harnp., 171. Calcord v. Fletcher, 50 Maine, 398. 2. Facts found and conclusions of law should be stated separately. Civil code, §§ 300, 867. Murry v. Mills, 1 Neb., 456. 3. Award is vague and uncertain. Morse, 346. on first point made by plaintiff, cited: Soper v. Franh, 47 Vt., 368. Bush v. Davis, 34 Mich., 190.

<p>1. Attachment: arridavit. Although an affidavit setting forth a ground of attachment substantially in the words of the statute will support the writ as long as it stands unchallenged by a denial, when so challenged its truthfulness must be shown by competent proof of facts, or the attachment will fail. Facts examined and held not to warrant an attachment.</p> <p>2. Ground of Attachment: removal or property. The mere fact of a removal of property out of the jurisdiction of a court, unless it be done with intent to defraud creditors, does not give the right of attachment.</p>

<p>1. Foreclosure sale of real property: appraisement. A court may vacate an appraisement of real property ordered sold under a decree of foreclosure, but unless tbis is done there is no authority for making a second one until the property has he^n twice offered for sale, and remains unsold for want of bidders.</p> <p>2. -: — . The fact that the sale was made in view of a second and unauthorized appraisement is not of itself sufficient ground for setting it aside when in fact it conforms to a prior and valid one as to the price realized. In such case the error is without prejudice.</p>

<p>Error to the district court for Kearney county. Tried below before Gaslin, J.</p> <p>cited: Johnsonv. Dinsmore, 11 Neb., 394. Billings v. MeCoy, 5 Id., 190. Williams v. The State, 6 Id., 338.</p> <p>cited: State v. Boorbaeker, 19 Iowa, 154. Bledson v. Commonwealth, 6 Rand., 673. Jones v. The State, 11 Ind., 357. McLean v. The State, 28 Kan., 373.</p>

Heard below before Barnes, J. At time notice was served an injunction was in full force restraining removal of county seat, offices, etc. The injunction being against the county was binding on all individuals acting for the county. People v. Sturtevant, 5 Seld., 263. Mandamus will not lie. High Ex. Leg. Eem., 23. The State, ex rel. Peed, v. Ramsey, 8 Neb., 291. Eesult of an election cannot be decided by mandamus. The State v. Palmer, 10 Neb., 203.

<p>Replevin -will not lie to oust a tenant from the occupancy of a building.</p>

<p>Error to the district court for Adams county. Tried before Pound, J., in the absence of Gaslin, J.</p> <p>cited: 1 Nash Practice, 555. Mores v. Trioe, 21 Gratt., 556. Kinsdale v. Bank, 6 Wend., 378. Hopkins v. Adams, 20 Yerm., 407. Bosey v. Decatur Bank, 12 Ala., 802. 2 Daniels, 1477 — 8. 2 Parsons on Notes and Bills, 302.</p> <p>cited: Mason v. King, 15 Ohio, 242. 1 Wait’s Actions and Defenses, 166, and cases cited.</p>

<p>Appeal from the district court of Eillmore county. Tried below before Davidson, J.</p> <p>cited: Cheney v. White, 5 Neb., 261. Bellinger v. White, Id., 339. SUrmer v.. Reynick, 10 Neb., 323. Knight v. Leary, 54 Wis., 459., Jones v. Yoakum, 5 Neb., 265. Smith v. Steele, 13 Neb.,. 1. Nyeum v. McAllister, 33 Iowa, 374. Simmons v. Ywrcmn, 11 Neb., 516. Batemcm v. Robinson, 12 Id., 508. Blanchard v. Jamison, ante p. 244. Watson v«. Voorhees, 14 Kan., 328. Robbins v. Burr, 54 111., 48.. Miller v. Little, 47 Cal., 174. Seymou/r v. Saunders, 3 Dül., 437.</p> <p>cited: U. S. Statutes, § 2,290 et seq. Oaks v. Heaton, 44 Iowa, 119. Dawson v. Merrill, 2 Neb., 119. Id., 3 Neb., 458. Brewster v. Madden, 15 Kan., 249. Warren v. Van Brunt, 19 Wall., 654. Evans v. Folsom, 5 Minn., 422. Platte v. U. P. B. B., 99 U. S., 38. Pernn v. Ott, 12 La. Ann., 233.</p>

, and same dismissed. The plaintiff claimed by his petition in the county court $588.60, and that amount was indorsed on the summons, but the judgment was for $500 only and costs, the defendant not appearing except to prosecute proceedings in error to the district court. The error, if any, was without prejudice, and couniy court had jurisdiction to render judgment for amount it did. Dillon v. Bussell, 5 Neb., 484. Reynolds v. Reynolds, 10 Id., 574.

<p>Error to the district court for Colfax county. Tried below before George W. Post, J.</p> <p>cited: 1 Daniels, 35. 1 Wait’s Actions and Defenses, 534, 538, 539, 545-549. 8 Southern Law Review, N. S., 526, and cases cited in notes 4 and 5. Leeds v. Lancashire, 2 Comp., 205. Hartley v. Wilkinson, 4 Maulé & Selwyn, 25. Brandt on Suretyship, § 79. Lang v. Pike, 27 Ohio State, 498. Kingsbury v. Westfall, 61 New York, 360.</p> <p>cited: Bailey v. Freeman, 7 Johns., 280. Nelson v. Boynton, 3 Mete., 400. Bainbridge v. Wade, 16 Q,. B., 89. Henry v. Coleman, 5 Vermont, 402. Brill v. Crick, 1 Messon & Welsby, 232. Sawders v. Bacon, 8 Johns., 485. 2 Parsons Notes and Bills, 517, and cases cited.</p>

<p>Taxes: equalization oe assessments. The power of the county commissioners to equalize assessments or grant any manner of relief against over-assessments (except to refund illegal taxes, paid under protest, in the manner provided by law) can only be exercised while sitting as a board of equalization, and their power to hold such session is limited to a period of ten days, commencing on the third Monday of June of each year.</p>

<p>1. Usury. Where a note and mortgage were given for the sum of §445.15, and only §380 received by the mortgagor, Held, On the facts proved, that the defense of usury was established.</p> <p>3. Report of Referee: conflicting testimony. Where the testimony is conflicting, the report of a referee will not be set aside as being against the weight of evidence unless it is clearly wrong.</p>

<p>Error to the district court for Lancaster county. Tried below before Gaslin, J., in absence of Pound, J.</p> <p>cited: Homer v. Conover, 26 N. J. Law, 138. Allegay v. Nelson, 25 Penn. State, 332. Byrd v. Blessing, 11 Ohio State, 362. 1 Graham & Waterman on New Trials, 162. 3 Id., 675 ei seq.</p> <p>cited: Maxwell’s Practice, 392. Comp. Stat., 572. Green v. Dodge, 6 Ohio, 80. Dorflinger v. Coil, 2 Ohio, 312, and cases cited. Lawson v. Bettison, 7 Ark., 401. Sampson v. Blair, 22 Cal., 200. Chambers v. Lane, 23 Texas, 104.</p>

<p>1. Sheriff: liability of sureties on bond. The sureties on the bond of a sheriff are liable in an action on a judgment of amercement against the sheriff for failing to return an execution.</p> <p>2. Action on judgment of amercement, where brought. An action on a judgment of amercement may be brought against the sureties on an official bond in the county where the amercement was had although none of the defendants reside in such county.</p>

Tried below before Gaslin, J., in absence of Pound, J. Proof that the house was of ill fame must be by fads, not fame. State v. Boardman, 1 Am. Crim. Rep., 351. 2 Bishop Crim. Proc., § 91. Caldwell v. The State, 17 Conn., 467. Selection of grand jury. Comp. Stat., 618, 726. MeElvoy v. The State, 9 Neb., 157. Bwrley v. The State, 1 Id., 397. Right of Gaslin, J., to hold term. Comp. Stat., 201. Ellis v. Karl, 7 Neb., 385. cited: State v. Brwnett, 29 Wis., 435.

Tried below before Pound, J. Indictment for murder in the first degree and sentence of death. Plea in abatement should have been sustained. Burley v. The State, 1 Neb., 396. Premt v. The State, 5 Id., 377. Barton v. The State, 12 Id., 260. Ciarle v. Saline Cownty, 9 Id., 516. State v. Conner, 5 Blackf., 225. Continuance. Wharton’s Crim. Law, § 2,930. Williams v. The State, 6 Neb., 338. State v. Lewis, 1 Bay, 1. Private counsel. Meister v. The People, 81 Mich., 101.

<p>Error to the district court of Platte county. Heard below before George W. Post, J.</p> <p>cited: Southern P. jE. P. v. Peed, 41 Cal., 256. Loeldand v. P. P. Co., 3 Mo., 180. Brady v. DesMoines & Fort Dodge P. P., 10 N. W. R., 754. G. P. & I. P. P. Co. v. Heizel, 38 Mich., 71. Dillon on Mun. Corp., 3d Ed., § 274.</p> <p>cited: Dillon on Mun. Corp., 576. Milbwrn v. Cedar Rapids, 12 Iowa, 246. Barney v. Keohuh, 94 U. S., 340. Ind. P. P. Co. v. Hartley, 67 111., 439. A. & N. R. R. v. Gaviede, 10 Kan., 552. Mercer v. P. P. Co., 35 Penn. State, 99. Brooldyn v. Railroad, 47 New York,. 475.</p>

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

W. Post, J., presiding, wherein the plaintiff in error was convicted of murder in the first degree and sentenced to death.

<p>Error to the district court for Howard county, Nor-val, J., presiding.</p>

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

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

<p>1. Promissory N"otes: The consideration of negotiable promissory notes may be inquired into in an action on tbe notes by the promisee against the maker.</p> <p>2. Account: settlement. A settled account is prima facie correct, and it will not be disturbed except for fraud or mistake in the settlement. But if fraud or mistake is shown the settlement will to that extent be considered as having been made upon mistake or imposition, and the omissions and mistakes will be corrected.</p>