Volume 15 — Nebraska Reports

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

<p>Practice in Supreme Court. There is no principle of law decided herein, as there was none involved in the case. Judgment helow affirmed. '</p>

<p>1. Trial of Eight of Property: practice. When an order of attachment is issued by a county judge, in a case in which the county court has jurisdiction concurrently with the district court, and chattels, seized upon such attachment, are claimed by a person other than the defendant in such attachment suit, proceedings for the trial of the right of such property should be commenced and conducted under the provisions of sections 486 and 487 of the civil code.</p> <p>2. Records: presumption. When a record, brought to this court on error, speaks of an order of attachment issued by a county judge, but fails to state in what amount it was issued, or to otherwise describe it, it will be presumed.to have been issued in a case in which the county court had jurisdiction concurrently with the district court.</p>

<p>1. Parties. A slight variance in. tlie name of one of the parties in th e j udgment from that in the execution will not vitiate it, where it is apparent from the pleadings and proceedings that the parties are the same.</p> <p>U. -: ACTION. The objection that the plaintiff has not legal capacity to sue must he made, if at all, by the defendant before judgment. The objection is not available to a stranger.</p>

Tried below before Tieeany, J. The petition filed in the cause there is as follows: 1.

<p>Building Contract. Where a contractor agrees to erect a building in a certain manner he must comply with his agreement; and no plea of lack of skill of himself or any of his workmen or sub-contractors will constitute a defense for a failure to comply with the contract.</p>

<p>Error to tbe district court foi Douglas county. Tried below before Neville, J.</p> <p>cited Cropsey v. Averill, 8 Neb., 160.</p>

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

This ivas an action of ejectment brought in the district court of Richardson county. The plaintiffs in error, who were plaintiffs below, claimed the land in controversy, as the widow and heirs at law of one Thomas Hodkins, deceased. It was admitted upon the trial that the patent for the land was issued and delivered by the United States to the said Thomas Hodkins,'and that he thereby became the owner in fee simple.

<p>Appeal from tbe district court of Saunders county. Heard below before George ~W. Post, J.</p> <p>cited: Phillips, 167, 389. Jones v. Swan, 21 Iowa, 181. Howard v. Veazie, 3 Gray, 233. McCall v. Eastwick, 2 Miles (Penn.), 45. Gilcrest v. Gottschalk, 39 Iowa, 311. On right of non-resident to have lien, cited: Greenwood ■ v. Mfg. Co., 2 Swan, 130. Atkins v. Little, 17 Minn., 342. On authority of agent, cited: Williams v. Webb, 2 Disn., 430. Phillips, 366.</p> <p>contended that decree must be affirmed or appeal dismissed. Wilcox v. Sounders, 4 Neb., 570. On right to lien, cited: Gen. Stat., chap. 42, §§ 1, 7. Bottomly v. Grace Church, 2 Cal., 92. Houghton v. Blake, 5 Id., 240. Hill v. Bishop, 25 Ill., 349. Hills v. Elliott, 16 Sergt. & Eawle, 56. Bailey v. Adams, 14 Wend., 201. Gorman v. Sagner, 22 Mo., 137. The statute, § 7,- excludes the idea of an agent making affidavit to secure the lien.</p>

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

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

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

Error tó tbe district court for Nemaha county. Tried below before Davidson, J. 1. The property covered by the bill of sale and replevied was absolutely exempt from judgment creditors by force •of the statute without any action of any one to give the exemption effect. Comp. Stat., p. 600, § 530. Maxwell Justice Pr., pp.’ 98, 99. William v. Golden, 10 Neb., 434. 2. The property being exempt was not the subject of a fraudulent sale as to creditors.

<p>Practice in Supreme Court. In a case brought to this court on . error or appeal, and no brief is furnished or filed for the use of the court, as required by rule VII., or, for cause shown, the operation of such rule he suspended as applicable to such ease, the judgment or decree will be affirmed, unless there is error plainly apparent on the face of the record.</p>

<p>liegotiable Instruments: obtaining- by duress and fraud. One who obtains a note and mortgage from an irregular practitioner of medicine by means of threats to send him to the penitentiary for having made an alleged indelicate, indecent, and „ injurious examination of the daughter of the former while treating her for supposed suppression of the menses, obtains no lawful property in such note or mortgage, and the same will be enjoined.</p>

Heard below before George W. Post, J. 1. Action cannot be maintained except by those holding a legal title to the land. Sec. 57, Comp. Stat., 394 The State v. S. O. & P. R. R., 7 Neb., 376. 2. A lease for a term of years, or even an equitable title, is not sufficient to entitle a party to relief in an action to quiet title. Thomas v. White et al., 2 O. S., 551. 3.

Tried below before Gaslin, J. Plaintiff in error was not liable as a common carrier, but only as a warehouseman. Hutchinson on Carriers, 109, 310. Germania Ins. Go. v. Railroad, 72 New York, 92. Liability of plaintiff in error ceased when freight was removed from cars and placed in warehouse. Francis v. Dubuque & Sioux Oily R. R., 25 la., 60. Story on Bailments, sec. 448. Thomas v. B. & P. Co., 10 Mete., 472. Platte v. Hibbard, 7 Cow., 497. Roberts v. Turner, 12 Johns., 232.

Tried below before Weaver, J. The opinion states the case., 1. Partnership property is liable for partnership debts before a dissolution of partnership, but after a dissolution of the partnership and a transfer of the property by the firm, either to a co-partner or to any other person, the creditors of the partnership lose that lien the law gives them upon a partnership property. Wilson v. Kellogg, 11 Ohio, 394. Smith v. Howard, 20 Howard’s Pr. Rep., 121.

, presiding. Payment to Hoagland Brothers was wrongful, because they had no claim under the mechanic’s lien law. The money was owing to plaintiff alone. In no event could they lay claim under the law in question to any lien on defendant’s in error property, or upon funds in its hands owing the plaintiff in error, certainly not upon so much of said funds as has been ordered paid over by precedent authority. Copeland v. Mantón, 22 Ohio State, 398.

<p>Cities of the Second Class: pees oe police judges. Cities of the second class are not liable for the fees of police judges where, for non-payment thereof, violators of city ordinances are required’to work, as provided in Sec. 31 of the act incorporating such cities.</p>

Heard below before Savage, J., May 19, 1881. Consent cannot confer jurisdiction, nor convert that into an information which is not in law. Boyle v. State, 17 Ohio, 225. No objection comes too late which discloses the fact that a person has been put to answer a crime in a mode violating his legal constitutional rights.

Tried below before Neville, J. The opinion contains a comprehensive summary of the evidence. 1. The petition in the foreclosure suit alleges ownership in Kuhns of the Noyes note and mortgage. This is a mere formal allegation, for the purposes of suit, and an effort was made by Kountze, as appears from his testimony, to have this allegation corrected in accordance with the facts.

<p>1. Statute of Frauds: evidence. Testimony of a parol promise to pay for a stove, given to the jury without objection, was withdrawn and excluded by the court on the ground that the-promise was to pay the debt of another, and not being in writing,, was within the statute of frauds. Evidence examined and promise, Held, Not within the statute.</p> <p>2. Practice. Held, also, That it is not good practice to permit testimony to be given without objection, and then ask to have it, excluded.</p> <p>3. -. Ordinarily where an objection to testimony is not made-when it is offered, and before it has gone to the jury, it should be deemed waived.</p>

The plaintiff had judgment before Pound, J., in the district court of Cass county on the 21st day of November, 1879, declaring the title to the north half of the northwest quarter of section 30, in township 11 north, of range 9 east in Cass county to be in her, and that defendant Sargent had no interest therein. On the 7th day of January, 1880, Sargent by his attorneys served a notice on plaintiff of a* motion to open the said judgment under sec. 82 of the civil code.

On the 11th of March, 1882, Eoggencamp brought suit, in the district court of Lancaster county against Joel N. Converse, Anna E. Converse, and David S. Gray, trustee-of J. N. Converse & Co., claiming title by advers'é possession for more than two years to the following described lands: So much of the west half of the west half of the north-east quarter of section number ten, township number eight, range number eight east, as lies north of the center line of what was and is…

In 1881, Shiley bought of the Sandwich Manufacturing Company, through H. M. Miller, the agent of said company, an Adams & French harvester. He gave his note in part payment and a second-hand Marsh harvester for the balance. This was sold by Miller to another party.

<p>1. Pleading: petition on an account. The action was on an account, a copy of which was attached to and made a part of the petition. The account was between the plaintiff in error and F. L. Stetson & Co., and showed a balance in favor of the latter. There being no assignment of the account by F. L. Stetson & Co. to David R. Stetson, the defendant in error, nor any allegation showing ownership» in him, Held, That the petition would not support the judgment in his favor.</p> <p>2. Attachment: succeeding orders oe. Several orders of attachment in an action may be issued at the same time, or in ' succession ; but in such case only a single affidavit is necessary.</p>

<p>Appeal from Lancaster county. Heard below before Pound, J.</p>

<p>Error to the district court for Saline county. Heard below before Weaver, J.</p> <p>cited: Commercial Bank v. Hughes, 17 Wend., 94. Chitty on Bills, 218. Pollard v. Bowen, '57 Ind., 232. Sheldon v. Horton, 43 N. Y., 97. Bryant v. Wilcox, 49 Cal., 47. Barclay v. Weaver, 19 Penn. St., 396. Jones v. Fales, 4 Mass., 252. Curtis v. Martin, 20 111., 557. Wood v. Price, 46 Id., 436. If there has been in fact a waiver of demand or notice, drawer is held in case of non-payment. Tucker & Co. v. Fairbanks, 98 Mass., 101. Parson v. Dickenson, 23 Mich., 56. Coddington v. Davis, 1 New York, 86. Spencer v. Harvey, 17 Wend., 489. Andrews v. Simms, 33 Ark., 777. '</p>

Tried below before Gaslin, J. contended' that the law authorized the building of the road along the highway. Gen. Stat., 187, 188; that such occupation by a railroad is a legitimate use thereof and the legislature could grant this power. Murphy v~ Chicago, 29 111., 279. Hinchman v. Patterson, 17 New Jersey Eq., 75. Milbowrn v. City, 12 Iowa, 246. Clinton v. Cedar Rapids, 24 Id., 455. On subject of additional burthen, cited: Cooley Const. Lim., 555.

<p>Appeal from Otoe county. Tried below before Pound, J.</p> <p>cited:' Brown on Statute of Frauds, § 370. Colman v. Carrigues, 18 Barb., 66. Underwood v. Hitohoox, 1 Ves., Sen., 279. 1 Greenl. on Ev., § 268. MoHon v. Dean, 13 Metcalf, 386. Wright v. Weeks, 25 N. Y., 153. Poland, v: O’Conner, 1 Neb., supra. 2 Parsons on Contracts, 552. Smith v. Finch, 8 Wis., 245. Horn v. Duddington, 32 Wis., 75. Pomeroy on Specific Performance, § 165, et seq.,page 223.</p> <p>cited: Sugden on Vendors, 193, 200, 201, 203, 205. Barry v. Coombe, 1 Pet.. 640. Bryant v. Boose, 55 Ga., 438. Hurley v. Brown, 98 Mass., 545. Hull v. Noble, 40 Me., 549. Qartrell v. Stafford, 12 Neb., 545.</p>

Tried bélow before Morris, J. The sureties upon the bond of a sheriff containing the usual conditions that he will account for all moneys that may come into his hands as such sheriff, are liable only for moneys which their principal is authorized and bound by law to receive in his official capacity as sheriff — not for that of which he becomes the voluntary custodian. People v. Pennock, 60-N. Y., 421. State v. Woodman, 36 Ind., 511. U. S. v. Boyd, 15 Pet., 187.

<p>1. Criminal Law. An indictment for murder by striking with a knife is not objectionable for duplicity, by reason of stating that the accused made an assault and feloniously, etc., did strike the deceased and inflict a mortal wound, etc.</p> <p>H, .-: murder: defense. Where a wound is the mediate cause of death, it is no defense that the immediate cause was erysipelas which set in in consequence of the wound.</p>

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

<p>1. A Bill of Exceptions, though agreed to by the attorneys of both parties by stipulation, unless settled and signed by the judge or clerk, will be quashed on motion.</p> <p>S. Practice in Supreme Court. Where the only objection to the judgment is, that the verdict is not sustained by the evidence, and for any cause the bill of exceptions be quashed or stricken from the files, the judgment will be affirmed.</p>

<p>Practice in Supreme Court. Tlie paper claimed to be a bill of exceptions being quashed, and there being no point raised, or question involved in the case, which can be considered without an examination of the testimony on which the judgment-was rendered, the judgment must be affirmed.</p>

Clark recovered judgment in this court in 1878 against the commissioners of Buffalo county on a mandamus to compel them to levy a tax and to draw warrants thereon, and deliver the same to him through the clerk until the full sum of $19,577.50 and interest thereon at ten per cent per annum from June 11th, 1873, should be fully paid. In obedience to this mandate levies were made and warrants issued to liquidate said judgment for the years 1877,1878,1879,1880, and 1881.

<p>1. Pleading: petition. The petition, Held, To state facts sufficient to constitute a cause of action against the defendants in favor of the plaintiffs.</p> <p>2. Liquor Selling: action by widow and children. Under the code system of pleading and the provisions of the statute now in force, known as chapter 50, Compiled Statutes, an action can he maintained by the widow and infant children, jointly or severally, whose husband and father has lost his life in consequence of intoxication, against any and all persons, jointly or severally, who sold, gave, or furnished any intoxicating liquor which was drank by him on the day or about the time of such intoxication.</p> <p>3. -: -: evidence. On the trial of such case it is competent to prove the physical condition and health of deceased, his habits of industry, his avocation, the monthly or annual product of the same, and whether any and all of the plaintiffs are of such tender age as to render them entirely dependent upon their parents for support.</p> <p>4.. -: -: construction. The word “beer,” without restriction or qualification, denotes an intoxicating malt liquor, and is within the meaning of the words “intoxicating liquors” as used throughout the statute.</p> <p>5, -: -: evidence. This class of actions is brought for the loss of support, not for the loss of the society or companionship of deceased; hence, proof of the lack of affection, synrpathy, or respect for deceased on the part of the adult plaintiff, is inadmissible.</p> <p>6. -: -: -: instructions to jury. There being evidence tending to prove that the deceased was intoxicated on the fatal day, and it being contended on the part of the defendants that he was not intoxicated, notwithstanding such evidence, because they had not sold him enough liquor to make him intoxicated, Held, That it was not error on the part of the court to instruct the jury that “it was not necessary on the part of the plaintiffs to prove that the defendants sold all the liquor to the said John Bauer that may have produced his intoxication,” etc., nor to allow counsel for the plaintiffs to urge to the jury that, rather than reject the evidence before them of the intoxication of the deceased, they might presume that he obtained and drank liquor otherwhere which also contributed to his intoxication.</p> <p>7. -: -: -. Evidence offered by defendants to prove that on the fatal night,,on account of its unusual darkness, another person in that vicinity lost his Way, and still an other had great difficulty in keeping it; also, that deceased had on a former occasion, on a bright moonlight night, lost his way, etc., was properly rejected.</p> <p>:8. -: -: -. The evidence in the case, Held, Sufficient to sustain the verdict.</p> <p>®. Trial: instructions. When, upon a trial, a party presents an instruction consisting of four propositions, each perfect in itself, with a fifth one reiterating and emphasizing the said propositions, it is not error on the part of the court, having given the four propositions in charge to the jury, to detach and refuse to •give the filth one, without regard to the law of such proposition, •or its applicability to the facts of the case.</p>

Tried below before Pound, J. The lease in question was simply a parol lease, good for a year, and determinable at the pleasure of either party at the end of the year. The owner of the fee, Mrs. Smith,, served on Coumbe, January 15, 1883, a notice to quit at. the expiration of the first year, viz., Eeb. 15,1883.

<p>Appeal from the district court of Gage county. Heard below before Weaver, J.</p> <p>The second defense in the answer is not a counter-claim-Walker v. Millard, 29 N. Y., 375. Thorpe v. White, 13 Johns., 56. 1 Parsons Notes and Bills, 197. Loomis v. Eagle Lank, 10 Ohio State, 327. Edgerton v. Page, 20. N. Y., 281. Puffy v. Punean, 35 Id., 187. On signature of judge to decree, cited: Nuckolls v. Irwin, 2 Neb., 66. Clough v. State, 7 Id., 321. Wise v. Frey, 9 Id., 220. Gillette v. Morrison, Id., 400. Defect in description in order of sale does not invalidate proceedings. Decree itself is authority for the action of the sheriff, not the order of sale. Rector v. Rotton, 3 Neb., 177. See also Douglass v. McCoy, 5 Ohio, 522. Longworth v. Rank, 6 Id., 536. Armstrong v. McCoy, 8 Id., 128. Spiller v. Nye, 16 Ohio, 16. The confirmation of the sale cured irregularities. Rorer on Judicial Sales, 108. Phillips v. Dawley, 1 Neb., 320. Crowell v. Johnson, 2 Id., 146. Day v. Thompson 11 Id., 125.</p> <p>On subject of counter-claim, cited: Pomeroy Rem., § 738. Bliss Code PL, §§ 125, 372 and cases cited note 1, page 447. Smith v. Fife, 2 Neb., 10. Gordon v. Renner, 49 Mo., 570. Allen v. Shaakleton, 15 Ohio St., 145. Isham v. Davidson, 52 N. Y., 237. Norris v, Tharp, 65 Ind., 47. On defects of affidavit for publication, cited: Atkins v. Atkins, 9 Neb., 191. McGavock v. Pollock, 13 Neb., 535. Shields v. Miller, 9 Kan., 390. Forbes v. Uycle, 31 Cal., 342. Claypoole v. Houston, 12 Kan., 324. On insufficient description of property, cited: Cobenv. Trowbridge, 6 Kan., 385. 1 Jones on Mortgages, § 66 and cases cited. On notice of publication, cited: Crow-ell v. Qallowa/y, 3 Neb., 215. Fanning v. Hrapfl, 14 N. W. R., 728. Even if no order of sale was necessary, sheriff could not sell until he had given the notice required by law. Rorer, § 99. Wade on Notice, § 1088. Collins v. Smith, 15 N. W. R., 192. Wescott v. Archer, 12 Neb., 345. Wheatley v. Terry, 6 Kan., 427.</p>

<p>1. Mortgage to secure payment of county bonds. Where a party has executed a mortgage of real property to secure the repayment to the county of the amount of certain coupon bonds, voted by the electors of the county, and issued by ■ the county commissioners, and delivered to such person to aid him in building a water grist mill, an action will not lie in equity to remove said mortgage, as a cloud on the title of the plaintiff to such real property, without first paying off such mortgage, according to the terms thereof, or returning to said county the value of such coupon bonds.</p> <p>2. A petition in an action in the nature of an action guia timet to remove a cloud from the title of land, which tails to contain an allegation that the plaintiff owns, or claims such land, or has title thereto, is demurrable.</p>

Heard below before Weaver, J., the facts being as follows: Prior to February 1, 1879, the plaintiff owned and ivas in possession of lot 11, block 3, Beatrice. She had mortgaged the premises, a foreclosure had been had, and, pursuant to an agreement between her and Smith and Dunbar the latter bid off the premises, Smith furnishing the money.

Tried below before PouND, J. 1. The limitation clause of the act of Februaryl5th,l869, as amended June 6th, 1871, § 105, General Statutes of Nebraska, is no bar to this action. This clause is unconstitutional. Gfroubeok v. Seeley, 18 Mich., 329. Walby tx Callender, 8 Mich., 430. Quindon v. Rogers, 12 Mich., 169. Case v. Dean, 16 Mich'., 12.

<p>Error to the district court for Lancaster county. Tried1 below before Gaslin, J., sitting for Pound, J.</p> <p>cited;: Miiliop & Kingman v. Doane et al., 31 Iowa, 400, and cases cited. Frazier v. Mills, 10^ Neb., 113. Morrill v.. Taylor, 6 Neb., 246. Galway, Semple & Co. v. Malohow,. 7 Neb., 285. Mansfield ¶. Gregory, 11 Neb., 298. Bessett v. St. Albans Motel Co., 47 Ver., 313. Day v. Wash-burn, 24 Howard, 352. Dodge v. Gh'iswold, 8 N. H., 425.. Mills v. Bloch, 30 Barb., 550. 'Almy v. Platt, 16 Wis.. 172. Weinland v. Cochran, 9 Neb., 480. Crowell v. Moracek, 12 Neb., 622. Williams v. Lowe, 4 Neb., 382„</p> <p>cited: Gh'eenway v. Thomas, 14 Ill., 271. Getsler v. Saroni, 18 Ill., 511. Dewey v. Eckert, 62 Ill., 218. WilHams v. Miehenor, 11 N. J. Eq., 520. Drake on Attachment. Cooper v. Reynolds, 10 Wallace, 308. Civil Code, § 82. Howard v. JEntreken, 24 Kan., 428. Taylor v* Boyd, 3 Ohio, 354.</p>

<p>1. Sale. When anything remains to he done between the buyer- and seller before the goods are to be delivered, a present right of property does not attach in the buyer.</p> <p>2. -: EXECUTORY contract. An agreement to sell and transfer property at prices to be afterwards determined, is an. executory contract.</p>

Tried below before Pound, J., where the prisoner was convicted .of murder in the second degree and sentenced to the penitentiary for life.

<p>1. Attachment: ground for. The fact that a debtor designs to sell his property, or to remove it beyond the jurisdiction of a court, when not accompanied by an intent to defraud his creditors, is not ground for an attachment.</p> <p>2.--. Affidavits examined, and the order of the district judge discharging the attachment sustained.</p>

<p>1. Warranty. To make a representation of the vendor, as to the quality of the thing sold, a warranty, it must have been relied ore by the vendee.</p> <p>'2.--. If the vendor merely give his opinion or judgment upon a matter of which he has no special knowledge, and on which the buyer may be expected also to have an opinion and to exercise his judgment, it is not a warranty.</p> <p>3. -. If there he any doubt upon the evidence whether the seller intended to make an affirmation, or to express his own opinion merely, the matter should be submitted to the jury.</p> <p>■4. New Trial: cumulative evidence. A new trial will not be granted on the ground of newly discovered evidence which is merely cumulative.</p>

P. R. R. over his land, etc. There was a trial, and ■a verdict in favor of Hays for $275. This verdict was set ■aside on motion of Hays and a new trial granted. At the second trial, before Dayidson, J., verdict in favor of Hays for $860, judgment, motion for new trial overruled, and ■.the R. R. company came up on a petition in error. cited: Sutherland Dam., 810. Woodward v. Leavitt, 107 Mass., 453.

<p>Witness: OPINION. Without a showing, there is no presumption that a witness is competent to give a reliable estimate of the market value of land; and where one’s competency is challenged, before he should be permitted to express an opinion it should be made to appear that he has in some way become qualified to-do so.</p>

<p>Practice: cross appeals. Where each party appealed to the district court from, the assessment of damages "by the commissioners appointed to assess the damages occasioned by the taking of the right of way over the lands of plaintiff for the railroad of defendant, Held, That a motion by defendant to dismiss the plaintiff's appeal for the want of notice of such appeal was rightfully denied.</p> <p>■2. Eminent Domain: railroad: evidence. On the trial of a right of way case a witness may state that the taking of a right of way across plaintiff’s farm in a diagonal direction from the n. e. corner to the s. w. corner is a damage to the remaining and severed pieces of land, and may state in what such damage consists.</p> <p>■ 3. Cross-examining Witness. A party who on eross-examination of a witness asks him an immaterial question is concluded by his answer and cannot call another witness to impeach him.</p> <p>4. The Instructions copied at length in the opinion, Held, To present the case fairly to the jury.</p>

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

<p>Removal from Office. The trial and ousting from office of a sheriff, for corruption, under paragraph 5 of see. 1, art. II., chap. 18, Compiled Statutes, hy the hoard of county commissioners, is not the exercise of judicial power, nor of the power of impeachment ; hut of a quasi political and administrative power, not denied to such bodies hy the constitution.</p>

<p>1. Railroads: TAXES.' It being the duty of the state auditor under the provisions of section 39 of chapter 77, compiled statutes, in case of any railroad company in this state -whose property is situated in more than one county, failing to list its property to him for taxation, as therein provided, hy the third day of March of each year, to proceed to obtain the facts and information necessary to such taxation, in any manner that may appear most likely to secure the same correctly, it will he presumed in the absence of proof, that the property of such company lawfully taxable by the state board of equalization, was for the year or years in question properly taxed by the said state board.</p> <p>2 -: -. The property of a railroad company which should properly be assessed by the state board of equalization, is not rendered assessable by the precinct assessor, nor taxable by the county board, by reason of the failure of the officers of the railroad company to list the same to the state auditor, or of the state board of equalization to assess the same.</p> <p>3.--: depot AND depot GROUNDS of a railroad actually used by the company in the operation of such railroad, or kept for the use thereof in the transaction of such increased business as may be reasonably anticipated in the near future, is taxable only as adding vali.e to the mileage of the main line and side track of such railroad, under the provisions of chapter 77, compiled statutes, entitled Revenue.</p>

Appeal and cross-appeal from the district court of Lancaster county, Pound, J., presiding. The facts sufficient to an understanding of the case are fully stated in the opinion. cited: Monnett v. Sturges, 25 Ohio St., 384. Pruyn v. Milwaukee, 1 Wis., 386. Thompson v. Pichel, 20 Iowa, 490. Warner v. Juif, 38 Mich., 622. Brewster v. Wakefield, 1 Minn., 352. Union Ins’n v. Boston, 129 Mass., 82. Corcoran v. Doll, 32 Cal., 82. Beckwith v. Trustees, etc., 29 Conn., 286.

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

<p>Error to the district court for Cass county. Tried below before Pound, J.</p> <p>'The remedy provided by statute is complete. Mills on Eminent Domain, 87. Lindell’s Adm’r v. Hannibal & St. Joe It. It. Co., 36 Mo., 543. Smith v. Chicago It. R. Co.,. 67 Ill., 198. Little Miami It. JR. Co. v. Whitacre, 8 Ohio State, 590. Ilovey v. Mayo, 43 Me., 332. Spangler’sAppeal, 64 Pa. St., 387. On fourth instruction, cited:. C. B. Railroad v. Twine, 23 Kan., 594. On question to< Reinhackle, cited: Stone v. Railroad, 68 Ill., 394.</p> <p>cited: Haynes-v. Thomas, 7 Ind., 38. C. B. R. R. v. Twine, 23 Kan., 585. Park v. R. R., 43 Iowa, 639. Laeldand v. R. R.,. 31 Mo., 180. Street Railway v. Oumm-insville, 14 Ohio-State, 523. Gottsehalk v. C. B. & Q. R. R., 14 Neb., 550, Dillon Mun. Corp., § 557 and note. Id., § 496 and note 1..</p>

The petition alleged in substance that, on the 25th of December, 1879, plaintiff purchased of the county treasurer certain tracts of land for the delinquent taxes of 1879; that said lands were not reported by the auditor of the state to the county clerk of said county as lands becoming taxable for the first time, but were assessed without being reported or forwarded by the auditor for such purpose; that the sale of such lands for taxes to the plaintiff by the treasurer of…

Tried below before Morris, J. reviewed the testimony at length, and cited, inter alia: Temple v. Smith, 13 Ind., 514, and cases cited. Burrill Assignments,, § 341. Bump., 89. Glenn v. Glenn, 17 Iowa, 501. cited: Thornton v. Hook, 36 Cal., 223. Nieholsv. Patten, 18 Me., 231. Fijield v. Gaston, 12 Iowa, 218. Clarkv. Tennant, 5 Neb.,. 557. Howe v. Howe, 99 Mass., 89. King v. Moon, 42 Mo., 551. Linn v. Wright, 18 Tex., 317. Waterbury v. Sturtevant, 18 Wend., 353.

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

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

<p>Appeal from Wayne county. Heard below before Barnes, J.</p>

<p>Debtor and Creditor: sale. A sale by one member of an insolvent firm of bis individual property at a fairprice, in payment of bis antecedent personal indebtedness, without any secret trust or benefit reserved to himself, and by which a preference is given to such creditor over those of the firm, is opposed to no principle of law, and will he upheld.</p>

Tried «below before Pound, J. The case came before this court in 1881, being reported, 12 Neb., 28. After reversal here, and the making up of issues below, the plaintiff Rogers recovered judgment for the amount sued, and defendant Walsh brought the case up on a petition in error. cited: Chitty on Bills, § 247, and cases cited. Lambert v. Heath, 15 M. & W., 486. Osborn v. Nicholson, 13 Wall., 659. Boyce v. Table, 18 Id., 548. Otis v. Ouflom, 2 Otto, 427.

<p>X. Attachment: affidavit. An affidavit for an attachment that states in effect a claim for which an attachment will lie; that it is just; the amount which the affiant believes the plaintiff ought to recover; and one or more of the grounds for an attachment, need not in addition state that the defendant has property within the jurisdiction of the court subject to attachment.</p> <p>2. -: UNDERTAKING. Where the ground of the attachment is that the defendant is a non-resident, no undertaking is required.</p> <p>3. -: return on writ. Where the return on the writ of attachment shows a levy upon the property, the calling of apx>raisers, the appraisement of the property, etc., and states that the appraisement is returned herewith but fails to describe the property levied upon, such description being fully stated in the appraisement, Held, That after judgment the return is sufficiently certain.</p> <p>4. An Affidavit for Publication which states that service of summons cannot be made within the state on the defendant to be served by publication, and facts bringing the case within section 77 of the code, is sufficient without referring to that section.</p> <p>5. Publication: notice : description of property. Where the description of attached in'operty in a notice by publication includes the property attached, it is not void, although the description be in general terms.</p>

Heard below before Dayidson, J., on exceptions to report of W. R. Kelly, Esq., referee. contended that it is not enough to show that the conveyance was made without consideration and for the purpose of placing the property beyond the hazard of business; it must be further shown that the conveyance was made with the expectation of contracting debts, and at the same time intending never to pay them. Lyman v. Cessford, 15 Iowa, 229. Bump On Fraudulent Conveyances, 317.

<p>1. Taxestax deed. The revenue law of 1869 provided that after the expiration of two years from the date of purchase, where lands were not redeemed, the treasurer on production of the certificate of purchase should execute a tax deed, etc.; and this certificate was to be canceled, and filed with the county clerk. Held, That the production of the certificate was a condition precedent to the authority of the treasurer to execute a deed, and that he had no power afterwards to execute deeds to correct errors in former tax deeds.</p> <p>2.---•:--: seal: The revenue law of 1879 requires the treasurer to attest the execution of a tax deed by his seal. Held, That a tax deed to be valid must be so attested.</p> <p>3. -: LIEN OE PURCHASER. Where a sale of land for taxes is invalid under the revenue law of 1869, the tax purchaser may enforce the tax lien for the amount of the taxes, and 12 per cent interest thereon.</p>

<p>Appeal from Adams county. Heard below before Morris, J.</p>

<p>Appeal from Lancaster county, Pound, J., presiding.</p>

<p>Trial: misconduct on attorney. On the adjournment of a trial from Saturday to Monday, two of the jurors in the case requested as a favor and obtained from an attorney of one of the parties, his horse and buggy to carry them home and return on the following Monday. A verdict having been returned in favor of the attorney’s client, it was set aside and a new trial awarded.</p>

<p>Bonds: iktjsiíkst. The proper authorities of the city of Omaha were duly authorized to issue $100,000 bonds due in 20 years, with interest at six per cent, payable semi-annually. The bonds to be sold at not less than par. They issued bonds conforming in all respects to the authority, except the interest, which was five per cent. The bonds were sold above par. Held, The rate of interest being within the authority conferred, the bonds were valid.</p>

<p>Error to the district court for Dixon county. Heard below before Barnes, J., on exceptions to report' of referee.</p>

<p>Verdict. When, under the provisions of section 293 of the code of civil procedure, the court shall have instructed the jury that if they render a general verdict to find upon particular questions of fact stating the same in writing, and directing a written finding thereon, the jury shall fail to agree to a finding upon the whole or a part of such questions, hut shall find a general verdict, it is error on the part of said court — over the objection of the defendant, against whom is the said general verdict, to receive such verdict, and judgment thereon will he reversed.</p>

<p>Appeal and cross appeal from Lancaster county. Heard below before Pound, J.</p>

<p>1. Judicial Sale. The mortgaged premises consisting of three city lots upon which were situated a dwelling-house and appurtenances, some isortion of which extended to and upon each of the said lots, were properly sold in gross, and the sale upheld.</p> <p>2. -: appraisement. The provisions of the statute requiring a sheriff to deduct from the real value of lands levied on, etc., the amount of all liens and incumbrances fortaxes or otherwise, prior to the lien of the judgment under which the execution is levied, etc., being for the sole benefit of the plaintiff in such proceeding, may be waived by him.</p>

<p>Railroad: fences. A railroad company which fails to fence its track at a place where by statute it is required to fence, is liable for stock killed or injured on its track by its engines or cars, and the mere negligence of the owner of the stock is no defense.</p>

<p>1. Eminent Domain: judgment: execution. Where a lot was condemned hy a railroad company, the money deposited with the county judge, an appeal taken to the district court, and a verdiot rendered in favor of the lot owner, it is the duty of the district court to render judgment on such verdict, and an execution may he issued thereon.</p> <p>2. -: railroad cannot abandon lot. After a judgment in the district court for the value of real estate condemned hy a railroad company, it cannot abandon the same and in that way avoid the payment of the judgment.</p>

<p>1. If ew Trial. When the finding and judgment of the trial court are supported by sufficient evidence a new trial will not be ordered unless prejudicial error affirmatively appears.</p> <p>2. Deed: warranty: possession. If the grantee of a conveyance of land, without the knowledge or consent of his grantor, surrender possession to one claiming under an adverse title, he cannot thereafter maintain an action upon the covenants of warranty contained in thh deed from his grantor, without alleging and proving that the title to which he surrenders is paramount to the title received from his grantor.</p> <p>3. -: evidence: forgery. When a deed is introduced in evidence, and it is shown by sufficient testimony that the alleged grantor has been absent from the state and his whereabouts unknown for more than ten years, and a claim of title under such deed is made for the first time, the alleged deed having existed more than twenty-three years, the admission of evidence impeaching the deed as a forgery, Reid, Competent.</p>

<p>1. Practice: NEW TRIAL: verdict. A verdict will not be set aside and a new trial ordered on account of a conflict in the testimony, except where it is clearly wrong.</p> <p>2. -•: prejudicial error must be shown. A new trial will not he ordered unless it appears that the party complaining has been deprived of a substantial right. Error without prejudice is not sufficient to warrant the setting aside of a verdict.</p>

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

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

<p>1. Railroad: demurrage. A railroad company is not entitled to charge demurrage for freight standing in its cars, unless by virtue of contract or statutory law, or possibly by such use and custom as may have acquired the force of law.</p> <p>2.---: expense: unloading freight. A railroad company cannot collect charges for unloading freight which it converts to its own use at the time of such unloading.</p> <p>3. -: COMMON CARRIER: increase of charges for transportation. A railroad company, as a common carrier, cannot legally increase the charges for transportation by wrongfully diverting freight from its proper course in transit.</p> <p>4. Practice: prejudicial error must appear. A new trial will not be ordered unless prejudicial error is shown by the record.</p>

Tried below before Pound, J. Defendants oifered to show that they had been garnished on the 13 th of June, and that' no claim was laid to the goods until the 25th; and offered the proceedings in garnishment, which was ruled out by the court. This we think is clearly error, as it would have tended to prove that the defendants in error had not claimed the goods in transitu.

<p>1. Practice: WAIVER OR EXCEPTION. If a defendant, after the overruling of a demurrer, answer to the merits, he thereby waives his exception to the ruling of the court on such demurrer. Harral v. Gray, 10 Neb., 186.</p> <p>Attachment: affidavit: not necessary to fully set OUT FACTS CONSTITUTING THE l'LAINTIFF’S CAUSE OF ACTION. In stating “the nature of the plaintiff’s cause of action” in an affidavit for an attachment, it is not necessary to state the facts constituting the cause of action; a condensed statement of the general nature of the claim is a sufficient compliance with the requirements of section 199 of the code of civil procedure.</p> <p>3. Bill of Exceptions: affidavits. Affidavits used on a hearing in the district court must be preserved by a bill of exceptions in order to be considered by the supreme court. Aullman v. Sowe, 10 Neb., 8.</p> <p>4. Guaranty: when action accrues. When an affirmative contract is made upon sufficient consideration to pay a debt of the promisee, upon the failure of the promisor to comply with his contract, the promisee may have his action at once without proof of damnification. Such a contract distinguished from a contract of indemnity.</p> <p>5. Fraud. Facts considered and Held To be proof of fraudulent intent.</p>

<p>1. Affidavits in support of a motion for a new trial which are not embodied in the bill of exceptions, will not be considered by the supreme court.</p> <p>2. Motion for New Trial. The supreme court will not consider questions occurring on the trial of a cause that have not been presented to the trial court by a motion for a new trial.</p>

<p>Practice. This ease presents no question of law, and turning on a question of fact upon which there was conflicting testimony, the verdict and judgment will not he disturbed.</p>

<p>1. Taxes: void sale : liability of county. Under the provisions of section 71 of the revenue law (Gen. Stat., 924), it is only when hy such mistakes or wrongful acts of the treasurer or other officer as are not matter of record nor which are participated in by the purchaser, land has been sold contrary to the provisions of said act, that the county is to save the purchaser harmless.</p> <p>2. -: title of purchaser: statute of limitations. The title acquired by a purchaser at tax sale might be said to fail when it should be pronounced invalid by the judgment or decree of a court of competent jurisdiction over the subject matter. Feet v. O’Brien,, 5 Neb., 360. And when such title has failed by reason of the land having been sold contrary to the provisions of the revenue law, “ by mistake or wrongful act of the treasurer or other officer,” it is then that the statute of limitations commences to run against the purchaser and in favor of the. county.</p>

<p>Error to the district court for Gage county. Tried below before Weaver, J.</p> <p>This would not justify a verdict on the warranty of Long. May-berry v. Willoughby, 5 Neb., 375. Boelclen v. Hardenbwrgh, 37 N. Y. Sup. Ct., 110. Woodward v. Cowing, 41 Me., 9. Iliff v. Brazill, 27 Iowa, 131. Parsons on Partnership, 95. Norton v. Thatcher, 8 Neb., 191. Huckabee v. Nelson, 54 Ala., 14. Powers v. Irish, 23 Mich., 429. Richards v. Walton, 12 Johns., 434. Dickson v. Burke, 28 Tes., 117. Puller v. Robb, 26 Ill., 246. Nickerson v. Chrisman, 28 Mo., 134.</p> <p>Damages 'recoverable. Field, §§ 273, 288, 274, 906. Sutherland, 435. Long testifies that he and Smith were jointly interested. What that joint interest was does not appear, but jury were justified in finding it sufficient to make them partners. Nebraska Railway v. Lett, 8 Neb., 251. 1 Lindley on Partnership, 236. Chapman v. Mur ah, 19 Johns., 290. Osgood v. Lewis, 2 liar. & Gill., 495. Long was authorized by Smith to sell his interest in the sheep, and an authority to sell such property carries with it an authority to warrant'. Schuchardt v. Allens, 1 Wallace (U. S.), 359. Andrews v. Kneeland, 6 Cowen, 354. Taylor v. Oreen, 8 C. & P., 316. 2 Addison on Cont., § 631 (Morgan’s Ed.), and cases cited in note 1.</p>

<p>Error to the district court for Lancaster county. Tried below before Pound, J.</p> <p>cited: Story’s Agency, 111. Reitz v. Martin, 12 Ind., 307. Meyer v. Baldwin, 52 Miss., 263. Carter v. Burnham,, 31 Ark., 213. Smith’s Mercantile Law, 171. White v. Cooper, 3 Penn. St., 135. Wheeler v. Plattsmouth, 7 Neb., 279. MeDonell v. Dodge, 10 Wis., 92.</p> <p>cited: Starring v. Mason, 4 Neb., 367, Furnas v. Franhman, 6 Neb., 429. Fatman v. Leeb, 41 Incl., 133. Kerslake v. Schoonr maker, 1 Hun., 436. Presoott v. Jones, 13 Neb., 534.</p>

<p>Error to the district court for Platte county. Tried below before Post, J.</p> <p>cited: Hays v. Wihox, 17 N. W. R., 110.</p> <p>cited: Smith v. McLean, 24 Iowa, 322. Winter v. Landphere, 42 Id., 471. Golden v. Cockril, 1 Kan., 259. Brown v. Holmes, 13 Id., 482. Jones Chattel Mortgages, §§ 53-61. Herman, §§ 38-40. Jordan v. Hamilton County Bank, 11 Neb., 503.</p>

<p>Appeal from the district court of York county. Tried below before George W. Post, J.</p> <p>cited: Aultman v. Obermeyer, 6 Neb., 260. Winans v. Peebles, 32 N. Y., 423. Action quia timet not proper. State v. S. C. & P. R. R., 7 Neb., 376. Description insufficient. 3 Wash. Real Prop., 381. Wofford v. MeKinna, 23 Tex., 44. Defendant’s title is good against plaintiff’s unrecorded deed. 3 Wash. Real Prop., 339. Bell v. Twilight, 18 N. H., 159. Trull v. Bigelow, 16 Mass., 406.</p> <p>cited: 3 Wash. Real Prop., 407, 408. McDonald v. Early, ante p. 63. Orook v. Vandevoort, 13 Neb., 507. Hanlon v. Wilson, 10 Neb., 138.</p>

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

<p>Exemption: waives. Where exempt property has been levied upon, the giving of a redelivery undertaking by the debtor is not a waiver of the exemption.</p>

<p>1. Bill of Particulars of Set-off. In an action before a justice of tbe peace, it is only in cases where the plaintiff, his agent, or attorney requires the defendant to fie a bill of particulars of his set-off that it is necessary to do so.</p> <p>2. -: evidence. "Where the plaintiff in his bill of particulars has set out the entire account — the credits as well as the debits —and the only question is as to the amount due thereon, proof may be received as to such account without the defendant pleading the same items as a set-off.</p>

<p>Election: canvassing betuens: mandamus. A board of canvassers of tbe returns of an election possess no authority to throw out the returns of election from certain precincts and refuse to canvass such votes, and if they do so they may be compelled by mandamus to reassemble and complete the canvass. 1</p> <p>Mandamus. If the remedy by action is not adequate, mandamus will lie against public officers for neglect of official duty. a.</p>

<p>1. School Meetings: women may vote a sd hold or Rice. The act allowing women possessing the qualifications therein prescribed to vote at school meetings is not in conflict with the constitution, and is valid. Women are eligible also to the office' of school trustees.</p> <p>2. --: WHEN HELD: ADJOURNMENT. The annual school meeting of each school district for the election of officers is required to he held on the first Monday of April of each year, and there is no authority to adjourn the election to another day.</p> <p>3. Quo Warranto. The attorney general is the proper officer to • institute proceedings in quo warranto in the supreme court, and not a district attorney.</p>

<p>Bill of exceptions from Antelope county on behalf of plaintiff, filed under secs. 515, 516, criminal code.</p>

<p>Error to the district court for Lancaster county. Action to recover $67.50 as commission on sale of a lot in city of Lincoln. Tried below before POUND, J.</p>

<p>Appeal from Buffalo county. Heard below before Gaslin, J.</p>

<p>1. Appropriation of Public Money. The auditor of public accounts has uo authority to draw his warrant upon the state treasury for money except in pursuance of a specific appropriation made by law.</p> <p>2. -. The act of Peb’y 28, 1883, entitled “An act making appropriations for the current expenses of the state government,” etc., does not appropriate any money for the purpose of returning prisoners from the penitentiary to the counties in which they were convicted, for retrial.</p> <p>3. Compensation: salary to cover. The warden or other officers of the penitentiary drawing a salary from the state are not entitled to any increase of compensation for services imposed by law in returning prisoners for retrial.</p>

<p>1. Infant: custody of. Where ail infant child, eight, months of age, is in the custody of its grandparents, its mother being dead, and it appearing that it would be more for the benefit of the infant to remain with them than to be put under the care of the father, the court will refuse to direct the infant to be delivered to him.</p> <p>2. Interest of Child only to be Considered. In such a controversy for the custody of the child the order of the court should be made with a single reference to the best interests of such ehild.</p>

<p>Fees of Printer Publishing Legal Notice. A printer publishing a notice required to be published by section 23 of the revenue law, is entitled to such compensation therefor as may be agreed upon by such printer and the person desiring such publication. If no compensation has been agreed upon, then such printer is entitled to a fair compensation for such printing and publication, to be alleged and proved as in other cases.</p>

<p>1. Wills. The prohate of a will and the issuing of letters testamentary ase prima fade evidence of the death of the testator.</p> <p>2. Taxes: redemption from tax sale: notice. Notice of the time when the redemption of lands 'from tax sale will expire must be given by the tax purchaser or his assignee before the expiration of the time to redeem.</p> <p>3. -: deed: seal. "Where the law requires a tax deed to ' be executed under the seal of the county treasurer, a scroll is not sufficient.</p>

Bill of exceptions from Dakota county, Barnes, J., presiding, brought to this court under the provisions of section 515, criminal code. cited: XI. 8. v. Bough, 6 McLean, 277. State v. Fletoher, 5 N. H., 257. Rex v. Robison, 2 Burrows, 799.

<p>1. Assignment: subsequent fraud. Where a valid assignment is made for the benefit of creditors, no fraudulent act of the, assignor after the taking effect of such assignment will vitiate it. Nor will a failure on the part of the assignee to account for money or property of the assigned estate have that effect.</p> <p>2. -: possession of assigned estate. It is necessary for the assignee to take possession of the assigned estate, but so far as the formal act of taking possession is concerned, no stricter rule applies than in case of ordinary purchase. A formal delivery of the keys to storehouses, safe, and shops, accompanied by a pointing out and surrender of possession of stock in pens, horses, harness, wagon, etc., in barns, is sufficient.</p> <p>3. -: partner may execute. One of two partners, with the consent of the other, may, convey real estate of the firm by an assignment in the name of the firm.</p> <p>4. -: consent, what is. Where one of two partners absconds, taking with him the available funds of the firm, leaving it insolvent and in the exclusive control of the other partner, this will imply consent on the part of the absconding partner to any sale, conveyance, or assignment of the partnership property by the remaining partner, which may be necessary for the payment of partnership debts.</p>

Indictment for murder in the second degree. Verdict — manslaughter. Sentence — ten years in penitentiary. Trial before Nor val, J. Comp. Stat., 713. Dying declarations. 1 Greenleaf Ev., § 158. Palees v. People, 2 Neb., 157. Starkey v. People, 17 111., 17. Montgomery v. State, 11 Ohio, 424. People v. Phillips, 1 Park. Cr., 306. Uncommunicated threats.. Holler v. State, 37 Ind., 57. Horrigan & Thompson Cases on Self Defense, 490. Stokes v. People, 53 N. Y., 164. Evidence.

<p>1. Justice of peace: appeal. In an action before a justice of the peace, the defendant appeared specially and objected to the jurisdiction of the justice. The objection was overruled, and the defendant not appearing further, judgment was rendered against him. He then filed an undertaking for an appeal which was duly approved. Afterwards he filed a motion to set aside the default, which was sustained, and the plaintiff not appearing to prosecute, the action was dismissed. Held, That after an appeal was taken by a party and pending, the justice could not set the judgment aside on the motion of such party.</p> <p>2. Jurisdiction. Where judgment is taken by default, an appeal taken to the district court by the party in default, and the transcript is filed in the district court by the appellee, he thereby waives objection to the jurisdiction.</p>

Tried below before Pound J. The policy contained the following provisions: “If * * * the premium note shall be due and unpaid * * * In every such case this policy is void.

<p>Appeal from Cass county. Heard below before Pound, J.</p> <p>Treasurer had authority to make second tax deed. Mc-Gready v. Sexton, 29 IoWa, 356. Hwrley v. Street, Id., 429. Lorrain v. Smith, 37 Id., 67.</p>

<p>1. Liquor Selling: cancellation of license: treasurer not liable. Where a remonstrance against issuing a license to sell liquor was overruled by a city council, the amount required for the license paid to the city treasurer, and no appeal having been taken within a reasonable time, and license issued, Held, That the subsequent cancellation of the license by the district court, the money having been paid into the treasury, did not render the treasurer liable for the repayment of the money.</p> <p>2. -: -. refunding license money. Where a license is canceled the court should direct repayment pro tanto of the amount paid for the same for the unexpired time.</p>

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

<p>1. Libel: practice: argument op counsel: In an action for libel where the defendant justifies and pleads the truth of the charge and that the publication was founded upon rumor and was without malice, Held, That the question of malice being in issue the plaintiff was entitled to open and close.</p> <p>2. -: evidence. In an action for the publication of an alleged libel in a designated newspaper, the republication of the same matter in other papers is not admissible in evidence.</p>

<p>Error to the district court for Lancaster county. Tried below before Pound, J.</p> <p>cited: Elliott v. Dudley, 19 Barb., 326. Spuclc v. Leonard, 9 Brad., 174. Meroein v. Mack, 10 Wend., 461. Smith v. Sloan, 37 Wis., 285. Kimbro v. Bullitt, 22 How., 256.</p> <p>cited: Parsons Part., 61. Smith v. Knight, 71 111., 148. Peokv. Lust, 38 Iowa, 93.</p>

<p>1. Officer De Facto: acts valid. The acts of an officer de facto are not void.</p> <p>2. Office: eight TO hold. The right of an incumbent to hold an office will not be enquired into collaterally. Such can only be done by a direct proceeding instituted for that purpose.</p> <p>3. Habeas Corpus: imprisonment must be unlawful. Where a person has been duly convicted of a misdemeanor and ordered to pay a fine, or in default thereof be committed to the jail of the county until such fine and the costs are paid, he cannot be discharged upon a writ of habeas corpus without first complying with the judgment of the court.</p>

<p>1. Injunction: petition. A petition which seeks to enjoin a public officer or a public corporation from controlling public property in accordance with tbe lawfully expressed direction of tbe corporation, must sbow that tbe plaintiff will sustain some special damage not common to tbe public, or tbe petition will not state facts sufficient to entitle bim to tbe relief sought.</p> <p>2. Error Must Affirmatively Appear. Error.,must affirmatively appear of record to justify tbe reversal of a judgment.</p>

<p>1. Judicial Sale: COTraTEMATloir. On proceedings to affirm a sale of mortgaged premises, no objection will be heard founded on an erroneous or imperfect description of the premises in any of the proceedings, unless it be alleged and shown that the party objecting will be prejudiced thereby; nor in cases of personal service or appearance of such party in the action, and such erroneous or imperfect description occurs in proceedings before judgment.</p> <p>2. -: PURCHASE SUBJECT TO MORTGAGE. The purchaser of mortgaged premises, who, as the whole or part consideration lor such purchase, agrees to pay off the mortgage, may he sued upon default of such payment by the holder of such mortgage; or, if he be made a party to a suit to foreclose such mortgage, a judgment may he rendered against him for a deficiency which may remain after applying the proceeds of a sale of the mortgaged premises to the extinguishment of the mortgage debt.</p>

<p>1. Execution: levy by one not an oeeiceb. When a private person, without authority or apx>ointment from any source, assumes to act as a constable, and seizes the chattels of another, he becomes a tresxjasser; and it is no defense to him that he then and there had in his possession an execution against such person issued by a justice of the peace.</p> <p>2. -: -. A sale by such unauthorized p,erson of such chattels as upon execution conveys no title.</p> <p>3. -: -: LIABILITY OF JUDGMENT CREDITOR. The plaintiff in such execution cannot be held responsible for the acts of such person in seizing or converting such chattels, unless he requested or authorized such seizure in fact, or in some way ratified the same.</p>

<p>Railroad: damages for right of way. J. sold and deeded to the railroad company a right of way across his land. The railroad company constructed an embankment for the track of its road along and upon such right of way, and thereby diverted a running stream of water which crossed the right of way, and then, making a half circle, ran back, so that the embankment constituting the string of the how left the bow on the west side of the embankment a pool of standing water. Thereupon, the railroad company instituted proceedings and condemned two small strips of J.’s land, one on each side of the said embankment — one on the east side for the purpose of a ditch to carry the water of said stream between the two points where the same was cut by the said embankment, and the other on the opposite side of the embankment for a “ Y” track — both of said strips being connected along their whole length with the right of way sold and conveyed by said J. to the railroad company. Upon appeal from the assessment of damages for taking said strips of land, the rulings of the district court, as well in the excluding of testimony as in the giving and refusing of instructions, whereby J.’s damages were confined to the value of the land taken, Upheld.</p>

<p>Appeal from Valley county. Heard below before Tiffany, J.</p> <p>cited: Giddings v. Sears, 115 Mass., 505. Lininger v. Raymond, 12 Neb., 25. Mussey v. Noyes, 26 Vt., 462. Curtis v. Leavitt, 15 N. Y., 197. Davis v. Anderson, 1 Kelley, 176. Harkraker v. Leiby, 4 Ohio St., 602. Doremus v. O’Harra, 1 Id., 45. Lyon v. MeLlvaine, 24 Iowa, 9. Dodd v. Hills, 21 Kan., 709 Bates v. Coe, 10 Conn., 280.</p> <p>cited: Burrill on Assignments, 220-224. Atkinson v. Jordan, 5 Ohio, 293. VanPatten v. Burr, 3 N. W. R., 114.</p>

<p>Error to the district court for Lancaster county. Tried below before Pound, J.</p> <p>Description in deed. Williams v. Warren, 21 111., 55Q_ Willey v. Snyder, 34 Mich., 60. Estoppel. Lúeas v. Hart, 5 Iowa, 415. Copeland v. Copeland, 28 Me., 525. Board v. Lincoln, 81 111., 156. Holmes v. Crowell, 73 N. C., 613.. Mayo v. Cartwright, 30 Ark., 407. Creen v. Brettyman, 17 Cal., 401.</p> <p>cited: Wendell v. JaeJcson, 22 Am. Dec., 635. MeAfferty v. Conovers, 7 Ohio St., 104. 34 Ind., 167. 9 N. Y., 197. Bingham on Sales, 425. Frey v. Lrahos, 6 Neb., 9. Mills v. Miller, 4 Neb., 444. 2 Smith’s Leading Cases, 652. Bigelow on Estoppel, 434.</p>

<p>Attachment. Upon examinatian of the evidence, Held, That the ruling of the district court discharging the attachment was not erroneous.</p>

<p>Error to the district court for Douglas county. Tried below before Wakeley, J.'</p> <p>cited: Fairlie v. Hastings, 10 Yes., 126. White v. Miller, 71 N. Y., 118. 1 Greenleaf Ev., 141. Luby v. Hudson River R. R., 17 N. Y., 131. Anderson v. Railroad, 54 N. Y., 340. Ryan v. Gilmer, 2 Mort., 517. Robinson v. R. R., 7 Gray, 92. Paolcet Co. v. Clough, 20 Wall., 528.</p> <p>cited: O. & M. R. R. Co. v. Porter, 92 111., 437. Morse v. Conn. R. R. Co., 6 Gray, 450. Curtis v. Avon R. R., 49 Barb., 148. Maher v. Chicago, 38 111., 273. Dowdall v. Penn. R., 13 Blatch., 403. , Burnside v. Grand Trunk, 47‘ N. H. 554.</p>

Appeal by defendants from a decree of the district court of Lancaster county, Pound, J, presiding. The action was brought to settle án alleged partnership claimed to exist under the contract alluded to in the opinion.

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

<p>1. Liquors: damages. Where, by reason of intoxication, a husband is rendered incapable of providing for his family, the wife may recover against the person furnishing the liquor for the loss of means of support during such intoxication.</p> <p>2. -: -. The statute in effect declares the act of producing intoxication a wrong, and makes every one who has contributed to it by furnishing intoxicating liquor, a wrong doer and liable.</p> <p>3.-: -: evidence. Inan action for loss of meansofsupport, injury to the wife’s health caused by over work is not a proper element of damage.</p>

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

<p>Deceit: promissory note : sale : consideration. One B.having a note of D. in Lis possession, which hehad paid in full out of funds of D., in his bands, afterwards sold the note to W., representing it to be a valid and subsisting obligation against D., and that D. resided near F. in this state, all of wbieb was untrue. Held, ThafW. could recover the consideration paid to B. for the note.</p>

<p>Bonds for Steam Grist Mill Invalid. There is no statute in this state authorizing the voting of aid to steam grist mills, and Bonds voted for that purpose are invalid.</p>

<p>Error to the district court for Otoe county. Tried below before Pound, J. •</p> <p>cited: Hepley v. Irwin, 14 Neb., 300.</p> <p>cited: Neiulove v. Woodward, 9 Neb., 504.</p>

Action in the district court of Bichardson county by Byan to' recover damages arising from the sale of certain property, of which he claimed to be the owner, by Taylor, constable, who had levied on and held it as the property of one Postal, by virtue of an order of attachment issued in a cause wherein LeBlanc was plaintiff and Postal defendant.

<p>1. Taxes: notice of sale. Where taxes levied upon lands in 1879 are delinquent, a notice of the sale of the same for the taxes due thereon must "be published in a newspaper as required by the act of 1877.</p> <p>2. -: -: publication. Such notice may he in a supplement if the circulation of the same is as extensive as that of the paper itself.</p> <p>3. -: redemption: notice. Notice of the time when the redemption of lands sold at tax sale will expire must be'given at least three months prior to the expiration of two years fr.om the dat eof saleto entitle the.party to a tax deed.</p>

<p>Error to the district court for Madison county. Tried below before Barnes, J.</p> <p>cited: Lewis v. Watms, 7 Neb., 477. Byrcl v. Blessing 11 Ohio State, 362. Stockstill v. Railroad, 24 Id., 86. Way v. R. R., 35 Iowa, 585. Ellis v. Ohio, 4 Ohio State, 646.</p> <p>cited: B. & M. R. R. Co. v. Wendt, 12 Neb., 76. Reynolds v. B. & M. R. R. Co., 11 Id., 186. Manzy v. Hardy, 13 Id., 36. Bothioell v. R. R., 13 N. ~W. Rep., 78. Gil-man v. R. R., 17 Id., 520.</p>

<p>Contract: breach : damages. When two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it. Hoadly v. Baxendale, 9 Exchq, R., 341.</p>

<p>1. Witness: incompetency may be waived. While a party to an action is an incompetent witness when the adverse party is the representative of a deceased person, yet the benefit of the statute may be waived by the party for whose benefit the statute is made, and the witness then becomes competent to testify.</p> <p>2. -: presumption. When the testimony of an incompetent witness is certified to this court the same as any other witness who testified on the trial, and the record shows no objection made on the trial to the testimony of the witness, the presumption follows that the objection was waived.</p> <p>3. Equity Title to Real Property: husband and wipe. When the husband causes his real estate to be conveyed to his wife with the understanding between them, definitely stated, that she will hold the title for him and convey the property to anyone to whom he may sell, or in case he does not sell then to him, a court of equity will enforce the trust upon the death of the wife and compel her heirs to execute it:</p>

<p>1. Mortgage Foreclosure. The purchaser under a decree of foreclosure of a mortgage obtains the title of all the parties to the suit whether their title he that which is set forth in the pleadings or not.</p> <p>2. —; : commissioner’s deed. The deed of a sheriff or master commissioner under a decree of foreclosure divests the mortgagee of all title to or interest in the land mortgaged to the same extent as if he had executed the deed thereto.</p> <p>3. -: tax lien. The mortgagee of real estate cannot purchase the mortgaged premises at tax sale prior to the foreclosure by him and after foreclosure take a tax deed and compel the purchaser at foreclosure sale to redeem. The tax lien if foreclosed at all must he foreclosed with the mortgage.</p>

<p>I. Town Sites: plat. Under the town site act of 1866, the county commissioners of B. county, upon a proper petition being presented to them for that purpose, incorporated the town of K., to include certain boundaries, Held, That their action incorporating the town was not void although certain lands not platted were included.</p> <p>2. -: -: taxes. The town of Kearney was incorporated in 1872, and included in its boundaries sixteen sections of land. It was organized as a city of the second class in December, 1873, and divided into three wards. In 1882 the plaintiff commenced an action to enjoin the city taxes upon its lands adjoining the city proper, and portions of which lands had been sold for city purposes, the sole grounds for the injunction being that the lands in question were not platted at the time of the incorporation of the town. Held, That the action could not be maintained.</p>

<p>Appropriations. There can be no implied appropriation of money by the legislature. The auditor has no authority to draw a warrant upon the treasury except in pursuance of a specific ap- ' . propriation.</p>

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

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

<p>Equity: setting- aside judgment. A suit to set aside or modify a judgment for a cause other than those enumerated in section 602 of the civil code must he founded on some recognized source of equity jurisdiction, such as fraud, accident, or mistake, or the same should he dismissed.</p>

<p>1. New Trial. A motion for a new trial must be filed at the term at which the verdict or decision is rendered, and except for newly discovered evidence within three days after the rendition of the verdict or decision, unless unavoidably prevented.</p> <p>2. -: CONSTRUCTION of stáxutb. The words “ unavoidably prevented” are equivalent in meaning to circumstances beyond the control of the moving party, and do not excuse mere neglect.</p>

<p>Judgment. An offer in writing, but without a signature, to permit the' plaintiff to take judgment for a specified sum and costs is. not sufficient. It must he signed.</p>

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

<p>1. Practice: PREJUDICIAL eeeoe must appeae. The decision of an inferior court in admitting evidence on the trial of a cause ■will not he reversed unless the evidence is before the supreme court, and prejudicial error is shown.</p> <p>2. -: INSTRUCTIONS TO juey. In an action of forcible entry and detention or forcible detention of real property, tried in a justice court, the justice has no authority to charge the jury upon the law of the case.</p>

<p>1. Order of Sale: defects in peevious pboceedings. The failure of the sheriff to legally advertise and offer for sale property which was not sold for want of bidders will not invalidate a subsequent sale made under another order of sale to which'no objection is made.</p> <p>2. Bill of Exceptions. 4-ffidavits used on a hearing in the district court must be embodied in a bill of exceptions to be available in the supreme court.</p>

<p>1. Usury. An usurious note transferred to a bona fide purchaser before maturity, for value, without notice, is not open to the defense of usury.</p> <p>2. Trial. Where a jury is waived the finding of a court will not he set aside as being against the weight of evidence, unless it is clearly wrong.</p>

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

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

<p>Trial to the Court: finding. When an action at law is tried to a court without a jury, the finding of fact by such court is a substitute for, and stands in lieu of, a verdict of a jury, and need be no more specific than the verdict of a jury upon the same pleadings and evidence.</p>

<p>1. Bill of Exceptions. When a bill of exceptions is signed without being submitted to the adverse party for examination and amendment, a motion to quash the same will be sustained.</p> <p>2. -: PRESUMPTION. There being no bill of exceptions, it will be presumed that the evidence sustains the decree of the district court.</p>

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

Appeal by defendants from a decree of the district court of Lancaster county, PouND, J., presiding. on allegations in petition cited: § 850, Code. Gregory v. Hartley, 6 Neb., 356.

Heard below before Post, J. contended that under.the homestead law of 1875, p. 45, the judgments became active by the transfer of the title from McMahon to Griffin, and rendered property liable to sale. Eaton v. Ryan, 5 Neb., 47. That the deeds purport to be for a valuable consideration, and appellees are bound by the recitals therein. 1 Greenleaf Evidence, §§ 24, 25, 571. Bigelow Estoppel, 609. IfcOrea v. Purmort, 30 Am. Dec., 103, 117.

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

<p>Eeeoe to the district court for Douglas county. Tried below before Neville, J.</p> <p>on verdict cited: Omaha Horse Railway v. Doolittle, 7 Neb., 481. Fort Wayne v. Kriehbavm, 24 Ohio State, 119. Continuance. Billings v. MaCoy, 5 Neb., 187. Juror- improperly excluded; Omaha v. Olmsteacl, 5 Neb., 446. Corwein v. Hames, 11 Johns., 76. Hill v.. Wells, 6 Pick., 104.</p> <p>on contributory negligence, cited: 2 Dillon Mun. Corp., § 1020 n. Whittaher v. West Boylston, 97 Mass., 273. Shear & Redf. Negligence, § 414. Continuance. Roberts v. Ward, 8 Blackf., 333. HawJces v. Lands, 3 Gilm., 227. Juror. Wood v. Stoddard, 2 Johns., 194.</p>

<p>Justice of Peace: service of summons. Incases where a justice of the peace has cognizance, a summons served three days including the day of service, before the time set for trial, is sufficient to give the j ustice jurisdiction.</p>

<p>Appeal from the district court of York county. Heard below before Norval, J.</p> <p>cited: Filley v. Duncan, 1 Neb., 134.</p> <p>cited: Drake on Attachment, § 223. Merchants v. O’Connor, 29 Ohio State, 654. Board v. Shaw, 15 Kan., 41.</p>

<p>Jurisdiction of Justices. Under the provisions of section 1103 of the code,, justices of the peace have jurisdiction of causes founded on promissory notes, bonds, or other written instruments, where the sum in question does not exceed two hundred dollars.</p>

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

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

This cause came before the court at the January term¿ 1882, and is reported with a statement of facts in 12 Neb., ■558. After reversal here, the defendants below, by an amended answer, claimed as a set-off the judgment referred to in the opinion.

<p>Conveyance: streets and alleys. Where certain lands in an addition to a city, but not platted, were conveyed by metes and bounds, one of the calls in the deed being a certain number of feet to an alley, thence along said alley, etc., there being in fact no alley at the place indicated, as was well known to the purchaser, but a strip twenty feet in width was reserved for that purpose when the city in fact was extended to that point, Held, That the alley was not a public one, and the purchaser could not enjoin the owner of the fee from erecting bars across the same.</p>

This was a matter coming before tbe court by tbe following document: “Whereas, The constitutionality of the railway commissioner system has been questioned, and there are differences of opinion among the members of this legislature as to the construction of sec. 26 of article V. of the constitution of the state of Nebraska, which provides that ‘No other executive state office shall be continued or created/ “ Therefore be it Sesolved, That the members of the supreme court of…

This was a matter coming before the court by the following letter: “ Office of the Board of Educational Lands and Funds, Lincoln, Neb., Nov. 13, 1883. “To the Supreme Court of the State of Nebraska: “We, the undersigned members of the board of educational lands and funds, would respectfully represent that a doubt exists in regard to the construction of section 9, article 8, of the constitution, and section 29 of an act entitled, “An act' to provide for the registry, sale,…

This was a matter coming before the court upon the report of Guy A. Brown, reporter of the supreme court, stating in substance as follows: 1.