Volume 16 — Nebraska Reports

<p>Corporation: subscriptions to stock. "Where articles of incorporation, fix the amount of the capital stock, the entire amount must he subscribed before a stockholder is liable to assessment for the accomplishment of the main object of the corporation' unless the articles otherwise provide, or there is a waiver of the conditions.</p>

<p>Practice: dismissal of action. When the summons served on the defendant was issued after the statute' of limitations had harred the action, Meld, That a motion to dismiss on that ground was properly sustained.</p>

<p>Error to tlic district court for Gage county. Tried below before Davidson, J.</p> <p>cited: Phelps v. Westfiord, 124 Mass., 286. DeWitt County v. Wright, 91 Til., 529. Cooper v. County, 64 Ind., 520. Bay v. Cook, 2 Zab., 343.</p> <p>■cited: Trustees v. Ogden, 5 Ohio, 23. Board v. Trustees, 21 Ohio State, 373.</p>

Er~aor~ to the district court for Seward county. Tried belo* before SAVIDGE, J., sitting for N0RVAL, J. Cox was plaintiff there, obtaining judgment against Anderson. cited: McDonald ~. Bceing 5N.W.R.,441.Charltonv.Wood,11Heisk., 19.1Wait'sActionsandDefenses,289. cited: Cliilton v. Butler, 1 E. D. Smith, 150. Hanfo~?d v. Shapter, 4 Daly, 243.Stewartv.Mather,32Wis.,344.Potvinv.Curran, 13Neb.,303.

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

<p>Appeal from the district' court of Fillmore county. Heard below before Morris, J.</p>

Eeeoe to the district court for Cass county. Tried below before Mobbis, J., sitting for Pound, J. • contended that the promise was one of suretyship or guaranty to answer for the default of Schindler, and therefore void unless in writing. Compiled Statutes, p. 287, § 8. Rose v. O’Linn, 10 Neb., 364. Mallory v. Gillett, 21 N. Y., 412. The promise “to see it paid” was necessarily collateral. Skinner v. Conant, 2 Vermont, 453. Kinlooh v. Brown, 1 Rich■ardson (S. Car.), 223.

<p>1. Statute of Limitations: new promise. A writing signed by the party, as follows: “I am sorry that you have had to pay the notes of Frank Pilloud and myself, upon which you was security for us. I can not at this time pay you the money, but propose to pay you my share, which I am told is about $413. I hope to be able to pay you soon, but I will let you know in a few days what I can do.” Held, To take the debt out of the statute of limitations.</p> <p>2. -: new promise after debt barred. A partial payment, acknowledgment of the debt, or promise to pay, made after the debt is barred, will revive it.</p> <p>3. Practice: opening and closing. A defendant is not entitled to the opening and closing on a trial, unless he by his answer admits the allegations of the plaintiff’s petition and relies entirely upon matter of defense set up in his answer.</p> <p>4. -: verdict of jury. The verdict of a jury upon questions of fact submitted to them is final, unless such verdict is manifestly wrong.</p>

<p>1. Summons: indorsement. In actions other than for the recovery of money only no indorsement of the summons is necessary. .</p> <p>2. --: -. But where an unnecessary indorsement is made, if it states the nature of the relief demanded in such general terms as-will apprise the person served of the prayer of the petition, it is sufficient.</p>

Tried ■below before Morris, J. ■ The case was one where Martin & Noble, defendants,, made an agreement with plaintiff for the purchase of plows, which was carried out and an alleged settlement made by the agent of plaintiff and Noble, one of the defendants. Suit was brought to recover the amount due according to-said settlement.

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

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

Tried below before Gaslin, J. Action against the county for services rendered in examination of accounts of the treasurer.

<p>Quo Warranto: judgment of ouster. Upon the facts found Ry the referee in this cause, the correctness of which is not questioned, judgment of ouster is rendered.</p>

<p>1. Bill of Exceptions: authority to settle and allow. “ The judge who heard or tried a case” in the district court has authority to settle and allow a bill of exceptions in a case tried before him after the expiration of his term of office.</p> <p>2. -: mandamus.' Such judge having the power or authority to act, the law makes it his duty to exercise the authority, and in a proper case a writ of mandamus will issue requiring him to act.</p>

<p>1. Appeal: approval op bond. Where an appeal is sought to .he°taken from the judgment of a county judge, and appellant flies his appeal hond in the proper amount, with two sureties, within the time required by law, the acceptance of such hond by the county judge and spreading it upon the docket is a sufficient approval of the bond, unless the party desiring to take the appeal is notified of the fact that the county judge refuses to approve the bond and sureties.</p> <p>2. -: practice: waiver. Where such a bond is filed, and afterward, and before the transcript is filed in the district court, the appellant procures additional and satisfactory sureties, if the transcript is filed in the district court in the proper time, and both parties appear and by agreement the time for filing the petition by the appellee is extended beyond the time fixed by law for filing the same, the appellee cannot remain silent until he is in default for want of a petition and then dismiss the appeal because the bond was not filed with the county judge within the time required by law.</p>

This case came here on appeal by plaintiff, from Adams county, Gaslin, J., presiding. After being so docketed, a petition in error was filed by plaintiff, and without further action the cause was argued and submitted at the January term, 1882. At the July term, 1882, the court of its own motion ordered a• reargument, which took place at the present term. I. Neither the charter nor powers of attorney conveyed the legal title.

<p>An Affidavit taken before an- attorney in tbe ease may, on motion, be stricken from tbe files.</p>

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

<p>Statute of Limitations: acknowledgment of existing liability. The debtor wrote and sent a letter to the plaintiff— creditor—within less than four years next before the commencement of the action on the account, saying, with reference to the claim, “ If ever I get able, I will pay every dollar I owe to you and all the rest. You can tell all as soon as I get anything to pay with, I will pay. As for giving a note, it is of no use, I will pay just as quick without a note as with it.” Held, That the letter acknowledged an “existing liability,” and thereby took the case out of the operation of the statute of limitations.</p>

<p>1. Guardian and Ward. Where a petition for the appointment of a guardian for a child six or seven years of age was signed in the name of the child, and a guardian was appointed and gave hond, etc., Held, Sufficient to give the court j urisdietion.</p> <p>H. -: SALE OF BEAL estate OF WABD. Where the records of the probate court show a license to a guardian to sell the real estate of his ward, a sale and confirmation thereof, and the execution of a deed to the purchaser, it will he presumed twenty- . two years afterwards, in an action by the ward to recover the land, that the necessary steps were taken to procure the issuing of the license.</p> <p>'3. -: settlement. A settlement by a ward after be oomes of age, with his guardian, acceptance of tbe proceeds of sales made by him, and discharge of tbe guardian and sureties on bis bond, is a ratification of bis acts.</p> <p>4. -: limitation. No action can be maintained by a ward to recover lands sold by his guardian unless the action is commenced within five years next after tbe ward comes of age.</p>

<p>1. Trusts. A, B, and C agreed together orally to buy a tract of land, each to contribute one-third of the price, and to have an undivided one-third of the land, the title to be taken in the name of C. The land was purchased in pursuance of the agreement, the consideration being contributed equally. Eeld, That a trust resulted in favor of A and B.</p> <p>2. -: sale. Where the entire purchase price was $3,500, of which $1,000 was paid when the deed was received, $500 to be paid in January following, and $2,000 in two years from 'the date of sale; and more than sufficient of said real estate had been sold by the person holding the legal title to meet the deferred pay- ■ ments, Eeld,, That the sales being made of the joint property inured to the benefit of all.</p>

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

<p>Constitutional Law. The classification of the cities of the state into classes and sub-classes, and the conferring upon them of corporate powers by acts of the legislature of a general nature, yet the provisions of which are applicable to but one of such classes or sub-classes, is not repugnant-to any provision of the constitution.</p> <p>-: CITIES of SECOND CLASS: road tax : The provisions of the act of March 1, 1883, requiring the county treasurer to pay over to the treasurer of cities of the second class having over ten thousand inhabitants all moneys arising from the levy of road tax against or upon property in said city, are not in violation of the vested rights of the county or any officer thereof.</p> <p>3. -: --: -. Such provisions apply as well to such moneys in the hands of such county treasurer, at the time of the taking effect of said act, as to those levied and collected thereafter, yet are not, for that reason, objectionable as being retrospective.</p>

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

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

<p>1. Cities Second Class: claims. The word “claims” in section 80 of the chapter relating to cities of the second class applies alone to those arising upon contract, and not upon tort—as for the death of a person through the negligence of the city.</p> <p>2. Judgment for costs reversed and taxed to the city.</p>

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

<p>1. Pleading. New matter to fie available as a defense must fie pleaded.</p> <p>2. Insurance. No merely teelmical objection, not materially affecting the risk, is available as a defense in an action on a policy of insurance to recover for the loss of the property insured.</p>

<p>Error to the district court for Madison county. Tried below before Barnes,. J.</p> <p>cited: Addison on Torts, 868. Boss v. Langworthy, 13 Neb., 495. Wertheim v. Altchuler, 12 Neb., 594. Atkinson v. Free Press, 46 Mich., 384. Barr v. Moore, 87 Penn. A, 385. Pennington v. Meeks, 46 Mo., 217. Bodgers v. Klime, 56 Miss., 808. Cooley on Torts, 182.</p> <p>cited: Drake ■on Attachments, §§ 173, 732,734, 736. Levy v. Brannan, 39 Cal., 485. Ganea v. 8. P. B. B. Co., 51 Cal., 140. Fortmam v. Bottler, 8 O. S., 552. Turner v. O'Brien. Neb., 543. Stone v. Swift, 4 Pick., 389. Alexander v. Harrison, 38 Mo., 258. 1 Am. Leading Cases, pp. 258 276. 2 Addison on Torts, § 865. 1 Hilliard on Torts, pp. 416 note “a,” and 421. Reed v. Samuels, 22 Texas, 114. Brooks v. Jones, 11 Ired., 260. Raver v. Webster„ 3 Iowa, 502. Gaddis v. Lord, 10 Iowa, 141.</p>

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

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

, Tried below before Nor val, J. The verdict of the jury found the right of possession of the property in dispute to be in the defendant in error, and awarded him $50 damages. Building was part of freehold. 1 Washburn on Real Property, §§ 5-7 and 148. Orest v. Jack, 27 Am. Dec., 353, and cases cited. Lunquist v. Teneych, 40 Iowa, 219. Huebschmann v. McHenry, 29 Wis., 655. Warner v. Fountain, 28 Id., 405. W. TJ. Tel. Co. v. ’Ry. Co., 11 Fed. Rep., 7.

<p>A Verdict or finding will not be set aside as being against the weight of evidence unless it is clearly wrong.</p>

<p>Registration of Bonds: fees. Where a county presents its refunding bonds to the auditor for registration, it must pay one-fourth of one per cent upon the dollar for each bond registered.</p>

Tried below before Morris, J., sitting for Pound, J. cited: Comp. Stat., chap. 50, § 19. Geere v. Sweet, 2 Neb., 76. Beach v. Oramer, 5 Neb., 98. Ray vv Mason, 6 Id., 101. Martin v. Grover, 9 Id., 263. This action is on liquor dealer’s bond, and law says u damages and expenses ” may be recovered in any court of competent jurisdiction. Expenses and costs are synonymous. 1 Bouvier, 370.

<p>Upon the facts stated in the opinion, Held, To he no error in the record.</p>

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

<p>Appeal from the district court of Madison county.</p> <p>cited the cases referred torn opinion and 2 Pomeroy’s Equity, § 917. 2 Stoi'y’s Equity, § 1520. Willard’s Eq., 364.</p>

<p>Appeal from tbe district court of Saunders county Tried below before Post, J., oh exceptions to report of referee.</p>

Error* to the district court for Saline county. Tried below before Weaver, J. Baier was defendant in the court below and before the justice.

<p>1. Bill of Exceptions. Where a trial is had and verdict returned, a party excepting must reduce his exceptions to writing within the time fixed hy law after the close of the term at which the trial was had, and the continuance of the hearing of the motion for a new trial to a subsequent term will not extend the time in which to prepare a hill of exceptions.</p> <p>2.--: Affidavits not embodied in a hill of exceptions may he stricken out of the transcript.</p>

<p>1. Criminal Law: autrefois acquit: plea of. The defendants were indicted, upon arraignment plead not guilty, and a j ury was impaneled to try the cause. The defendants objected to any testimony being given in support of the indictment for the reason that it did not charge the commission of a crime. The obj ection was sustained and the jury discharged without a verdict and without objection by the defendants ; Held, That this did ■not constitute an acquittal which could be plead and maintained as a plea in bar to a subsequent indictment.</p> <p>2. -: -: PRACTICE. When a plea in bar is interposed to a prosecution upon indictment, which is clearly insufficient, a demurrer may be filed thereto without resorting to the formality of impaneling a jury to try the issue presented by the plea. But if the plea states facts which, if true, would constitute a bar to further prosecution, the truth of the plea must, in the absence of a valid agreement to proceed otherwise, be ascertain-’ ed by a jury.</p>

<p>1. Practice: bill op exceptions. Where evidence has been introduced in the court below, which is not properly a matter of record, a party who wishes to avail himself of it in the supreme court must preserve the same by a bill of exceptions. Ray v. Mason, ,6 Neb., 101.</p> <p>2. Judgment: presumption in favor of. It is a settled rule op law that] every presumption is in favor of the correctness of a judgment of a court of general jurisdiction until the contrary is made affirmatively to appear. Credit Fonder v. Rogers, 10 Neb., 184.</p>

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

Tried below before Morris, J. Plaintiff’s negligence was the proximate cause and his employment by defendants, at most, but the remote cause of the injury, the plaintiff therefore should not recover. Trow v. Vermont It. It. Co., 24 Vt., 487. Callahan v. Warne, 40 Mo., 131. Galena, Dunhith M. P. Co. v. Vandergrif, 34 Id., 55. Redfield on Railways, 330. Michigan P. B. Co. v. Leahey, 10 Mich., 193. Stilson v. Hannibal & St. Joe R. R. Co., 67 Mo., 671.

Appeal’from Richardson county. Heard below before Davidson, J. The action was brought there to settle the interest of plaintiff and defendant as tenants in common, to quiet title and obtain a partition of the land in controversy. Plaintiff claimed title through Mary Jane Hare, to whom the undivided one-half of the land had been conveyed by her husband.

<p>1. Mechanic’s Lien. "Where A agreed to erect and did erect three houses for B, one upon each of three adjoining lots, for an entire sum, Held, That a mechanic’s lien attached to all the lots and the buildings thereon.</p> <p>2. -: items of account. Where a mechanic enters into a contract to erect a building or buildings for a specified sum, the contract being entire, he need not make a detailed statement of his labor and materials, but the entire job may be set down as a single item.</p> <p>8. -: liability of PURCHASER. A party purchasing a building within four months from the time it was erected or repaired takes it subject to any legitimate claim arising under the mechanic’s lien law for erection or repairs.</p> <p>4. -: APPORTIONMENT AMONG SEVERAL LOTS.. Where G., the owner of three adjoining lots, contracted with D. & C. to erect a house on each of said lots, the contract being entire; in an action to enforce a mechanic’s lien thereon, Held, That the cost and expense of erecting all the houses would be apportioned among the lots according to the value of the labor and materials . expended on each.</p>

<p>Appeal to the district court of Cass county. Heard be-r low before Potjñd, J.</p>

<p>Railroads: obstruction by bridge: damage to adjoining LAND. The O. and R. Y. R. Co. constructed a railway bridge across the Platte river, the piers being twenty feet apart from center to center. An ice gorge having formed above the bridge, by which the water of the river was thrown out of the channel, whereby the property of B. was injured and destroyed, Eeld, That there being sufficient evidence tending to prove that the opening* between the piers were not sufficient to permit the free passage of such quantities of ice and water as might reasonably be expected to occur occasionally, the verdict would not be set aside.</p>

<p>1. Railroads: right of way: damages. The sale of a lot or parcel of ground to a railroad company for right of way purposes, and the receipt of the consideration therefor, does not estop the owner from claiming damages to other remote and detached real estate injuriously affected by the construction of such railroad; and such sale will not be held to be a full satisfaction of all damages to other property unless such was the intention of the parties at the time of making the contract.</p> <p>2. -: action for damages to REAL estate. Where real estate is damaged by the construction of a railroad, but no part thereof is appropriated to the use of such road, an action at law for such damages may be maintained.</p> <p>3. Instructions. Where it is claimed that instructions given to a jury were too general, and where a more explicit charge was not requested, the objection cannot be entertained.</p>

<p>Error to the district court for Lancaster county. Tried below before Pound, J.</p> <p>on rescission of contract cited: Barnett v. Stanton, 2 Alá., 181. Desha’s v. Robinson, 17 Ark., 228. Chance v. Corn’s Clay Co., 5 Blackf., 441. Pettus v. Roberts, 6 Ala., 811. Buel v. Tate, 7 Blackf., 55. Calhoun v. Davis, 2 Ind., 532. Teter v. Hinders, 19 Ind., 93 and 128. Conner v. Henderson, 15 Mass., 319. Vendee should have returned goods. 1 Parsons Cont., 593. See also Blackburn v. Ostrander, 5 Neb., 222. Praise of article or affirmation of soundness when exposed for sale is not a warranty, unless so intended by the parties, and such intention must be proven. House v. Fort, 4 Blackf., 493. Duffer v. Mason, 8 Conn., 25. P/noin v. Maxwell, 3 Murph., N. C., 241. Foster v. Caldwell, 18 Vt., 1,76. 5 Wait’s Actions and Defenses, 562.</p> <p>cited: Jones v. Edwards, 1 Neb., 170. First National Bank v. Yocum, 11 Id., 329. Phillips v. Jones, 12 Id., 213. Dittle v. Woodworth, 8 Id., 281. Thurston v. Blanchard, 22 Pick., 18. Coghill v. Boring, 15 Cal., 218.</p>

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

<p>Original application for mandamus.</p> <p>cited: Burroughs on Public Securities, 300-308. 2 Daniels Neg. Instr., 537-570. Knox v. Aspinwall, 21 How., 539. Town of Coloma v. Eaves, 92 U. S., 484. Humboldt Township v. Long, 92 Id., 642. Third National Bank v. Seneca Ealls, 15 Reporter, 779. State, ex rel. Kimball, v. School District, 13 Neb., 82. 2 Dillon Mun. Corp., 511. State v. Van Horne, 7 Ohio State, 331. State, ex rel. Gregory, v. School District, 13 Neb., 78. State, ex rel. Hopper, v. School District, 13 Neb., 466.</p> <p>cited: . Burroughs on Public Securities, 329, 331. Adams v. State, 82 111., 132. Scipio v. Wright, 101 U. S., 665. Harsh-man v. Bates County, 92 U. S., 569. McClure v. Town-shiv of Oxford, 94 Id., 429. Lewis v. Commissioners, 1 McCrary, 377.</p>

<p>Criminal Law: punishment. A justice of the peace in a proper case may impose a fine not to exceed one hundred dollars, or sentence to imprisonment not to exceed three months, hut cannot as a punishment for the same offense impose both fine and imprisonment.</p>

<p>1. Taxes: action on deed: foreclosure of lien. The holder ' of a tax deed may bring an action upon the deed and allege that the title acquired thereby has failed, and in the same petition seek to foreclose his tax lien.</p> <p>2. -: TAX SALE: power OF COMMISSIONERS. County commissioners possess authority under the act of 1875 to purchase for their respective counties real estate advertised and offered for sale, and not sold for want of bidders. And they may assign the certificates to a purchaser.</p> <p>3. -: tax deed: form. A tax deed which fails to allege that the sale was had at a place designated by statute, or is not attested by the official seal of the treasurer, is invalid.</p>

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

<p>1. Taxes: tax deed. Under the revenue law of 1869 a tax deed that fails to show that the sale was made at the place designated hy law is invalid.</p> <p>2. -:--. The treasurer of a county has no authority to issue a second deed upon a canceled certificate in the clerk’s office.</p> <p>3. -: —-: seal. A tax deed must he attested hy the official seal of the treasurer.</p> <p>4. -: -: sale: eoem oe deed. A tax deed and the validity of the sale are to be tested hy the law in force when the sale took place.</p> <p>5. -: -: limitation. The statute of limitations does not begin to run in favor of the holder of a tax deed hy merely recording the same. To avail himself of the benefits of-the statute his possession must he actual and adverse and continued for the statutory period.</p>

<p>Appeal from a decree of the district court of Johnson county, Pound, J., presiding.</p>

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

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

<p>Appeal from the district court of Douglas county. Heard below before Neville, J.</p> <p>on first point stated by court in its opinion, cited: Miller v. Hurford, 11 Neb., 384. People v. Auditor, 30 Mich., 12. Bobbins v. Barron, 34 Id., 517,- and 32 Id., 36. Waimer v. Porter, 42 Id., 569. Peet v. O’Brien, 5 Neb., 360. Second point: Louisville v. Bank, 3 Met. (Ky.), 148. Hooser v. Buckner, 11 B. Mon., 183. Third point: Z7. S. v. Freeman, 3 How., 556. Fourth point: Peet v. O’Brien, 5 Neb., 360. 89 Wis., 444. 52 Iowa, 141. Fifth point: Cooley Taxation,. 284. Burroughs Public Securities, 211. 63 Penn. State, 36. 2 Watts, 334. 58 Maine, 533. 60 Id., 27. 87 111., 353. 50 Mo., 198.</p> <p>cited: Cooley Taxation, 258 352. Miller v. Hurford, 13 Neb., 21. Green v. Lunt, 58 Maine, 518. Lyman v. City, 56 Penn. State, 488. Stewart -v. Shoenfelt, 13 S. & R., 360. Peet v., O’Brien, 5 Neb., 360.</p>

<p>Motion suggesting diminution of record.</p>

<p>1. Appearance. A defendant or appellee may appear in court specially and make a motion to dismiss the case, for the want of jurisdiction, or to quash or strike from the files any jurisdictional paper, without thereby making a general appearance in the case.</p> <p>2.--: justice of peace: appeal. A defendant, in a case before a justice of the peace, who has appeared “ at the return day of the summons,” or attended “ at the time to which a trial has been adjourned,” and has made the necessary bill of particulars, will not be entitled to have the judgment against him set aside, as is provided in section 1001 of the civil code, nor will he be denied the right of appeal.</p> <p>3. Justices of Peace': docket entries. Such entries as are required by law to be made in a justice’s docket, or a transcript thereof certified by the justice, or his successor in office, is evidence of the facts therein stated. But no voluntary entry of other facts in such docket will be received in evidence.</p>

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

<p>1. Foreclosure of Tax Liens. The amendment of 1871 to the revenue law, authorizing the foreclosure of tax liens, applies to taxes then due which were a lien upon real estate.</p> <p>2. -: limitation. The statute of limitations does not begin to run against the right to foreclose the tax lien until the title acquired by the tax deed fails.</p> <p>3. -: payment op subsequent taxes, A purchaser at tax sale may pay all taxes thereafter accruing which are legally chargeable against the land'purchased, and add the same to his claim in the enforcement of his lien,</p>

<p>Constitutional Law. That part of “An act to prevent the fraudulent transfer of personal property,” approved February 13, 1877, which makes it criminal to remove mortgaged property n out of the county within which such property was at the time of the execution of the mortgage, Held, Unconstitutional, as not being expressed in the title of the act.</p>

On trial below before Neville, J., the following instructions were given, to which the defendant excepted: “2d. Before you can convict you must be satisfied from the evidence beyond a reasonable doubt of the truth of the following propositions: “1. That the bridge in question was a public bridge. “ 2. That thé road upon which it was placed was a public road at the time of the alleged destruction. “ 3.

<p>Error to the district court for Douglas county.' Tried below before "Wakeley, J.</p> <p>cited: Dillon Mun. Corp., §§ 493-5. Bigelow Estoppel, 558-60. Bauer v. Gottmanhausen, 65 111., 499. Diehl v. Zangar, 39 Mich., 601. Stafford v. King, 30 Tex., 273. Minhler v. The State, 14 Neb., 181. Morrison v. Neff, post.</p> <p>cited inter alia: BarMnson v. MeQuaid, 54 Wis., 473. Woods v. Robinson, 58 Tex., 655. Lampe v. Kennedy, 45 Wis., 23. Allen v. Reed, 51. Cal., 362. Tyler Boundaries, 284.</p>

The action was brought there by Lundstrom to recover damages on account of the death of his intestate occurring in the manner stated in the opinion. The accident occurred while the deceased was in the employ of the St. Paul & Sioux City Railroad, who had disposed of its road to the defendant below prior to bringing of this action. Trial below before Wakeley, J. and a jury, with verdict and judgment for plaintiff of $5,000 and costs.

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

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

<p>1. Municipal Corporation: special assessment: notice. Notice in some form must be given to a property owner before a special assessment upon Ms property becomes fixed and irrevocable.</p> <p>2. -: -: -: injunction. When an improvement has been made along a public street, to which the owner of property abutting thereon has made no obj ection till after its completion, upon a bill being filed by him to enjoin the assessment for want of notice, he must do equity by paying the amount which his property is benefited by the improvement.</p>

<p>1. Railroad: crossing public highway: damage to adjoining LAND. Where a railroad is constructed across a highway on a level materially below the level of the highway, it is the duty of the railroad company, at its own expense, to adapt the level of the highway to that of the railroad, by proper gradients.' And if the making of the necessary cuts and gradients on the highway for such purpose is a damage to adjoining lands the railroad company will be liable therefore.</p> <p>2. -: eminent domain: damages. There being testimony tending to show that defendant’s land was damaged, was isolated, • and rendered inaccessible by reason of the taking of the right of way, and the cuts and fills rendered necessary by the construction of the railroad, and the jury having been permitted to view the premises, a verdict for an amount of damages which seems to be reasonable and not extravagant will be upheld.</p> <p>3. -: -: verdict. In such case the verdict can not be held to be excessive.</p> <p>4. -: -: evidence. The owner of land taken for right of way by a railroad company, having resided upon and improved it for several years, who swears that he knows what it is worth, is a competent witness on the question of its value. B. &M. B. B. Oo. v. Sclihmtz, 14 Neb., 421.</p> <p>5. -: -: -. So, too, are other persons who have resided for several years in the immediate neighborhood of the land, and who seem, upon examination, to be well informed of its situation, condition, and value. Id.</p>

<p>Error to the district court for Washington county. Tried below before Neville, J. •</p> <p>cited: Hull v. State, 2 N. W. R., 175. Zweifel v. State, 27 Wis., 399. Cottrell v. State, 9 Neb., 125.</p> <p>cited: Jones v. State, 14 Neb., 210. State v. Nichols, 13'N. W. R., 153. State v.' McGlothlen, 9 Id., 883. Ex parte Cottrell, 13 Neb., 193.</p>

Tried below before George W. Post, J. 1. The petition does not show that the court had jurisdiction of the subject matter. 2. There is no memoranda in writing stated'in the petition showing a complete and completed contract. The memoranda must contain in writing the substantial terms of the contract expressed in such certainty that they may be understood without resorting to parol evidence; and this must be shown by the petition.

<p>Motion to dismiss.</p>

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

<p>Taxes: foreclosure of men. Under the act approved Feb. 19, 1875, for the foreclosure of tax liens, an action may he brought on a tax certificate after the time to redeem has expired. If the action is properly brought within five years, the court may include in the decree money due upon tax certificates of sales made more than five years before the commencement of the action.</p>

<p>Rehearing of case, ante p. 80.</p>

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

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

<p>Lien of Judgment: VJSNDOIS'S XNTBREST n~ LAND. Where judgment is recovered against one who has agreed to sell land but made no deed nor received the whole of the purchase money, it is a lien on the vendor's interest in the land, and a purchases under the judgment is entitled to the money remaining unpaid.</p>

<p>Railroads: occupation op, land belonging to dieectoe: ejectment does not lie. R. was one of the original projectors of the O. & N. W. R. R., owned more than one-fifth part of its capital stock, and was an active member of its board of directors during the whole life of said corporation. In 1869 the line of the road was laid out and established, and the first ten miles graded passing over and occupying a tract of land belonging to R. No objection was ever made by R. to the occupation of his land by said railroad track. In May, 1871, the first twenty-six miles of the railroad, including that part crossing the land of R., was conveyed by said railroad company by deed of trust to secure the payment of certain bonds therein described. In 1878 the said deed of trust was foreclosed in equity, and the said railroad sold to satisfy the principal and interest due on said bonds. Defendant holds its title to said railroad under such sale. After-wards R. brought ejectment against defendant O. & N. N. R. R. Co. to eject it from said land. Held, That such action could not be sustained.</p>

<p>1. Witnesses: cross-examination. When a witness is cross-examined on a matter collateral to the issue, he cannot, as to his answer, he subsequently contradicted by the party putting the question. 1 Whart. Ev., I 559.</p> <p>2.--:--. The test of whether a fact inquired of in cross-examination is collateral, is, would the cross-examining party be entitled to prove it as a part of his case tending to establish his plea? Id.</p>

<p>1. Real Estate: fraudulent sale : consideration. Upon tlie evidence set out in the body of the opinion, Held, That the price at which the real estate in question was sold by the attorney in fact of the vendor was not so grossly inadequate as to be notice to the vendees or subsequent mortgagee of any fraudulent intent on the part of said attorney, even if such intent existed at that time.</p> <p>2. -: POWER OP ATTORNEY: TERMS OP SALE. P. gave M. a power of attorney to sell and convey a tract of land. M. conveyed the land to B. and B., and under an arrangement contemporaneously made, whereby McE. was to make a loan of money to B. and B. to enable them to pay for said land, took notes and a mortgage from B. and B. payable to himself, and immediately endorsed the notes and assigned the mortgage in his individual capacity to McE., who thereupon paid the money, into the hands of a land agent, who immediately passed it over to M. Held, That the same was a sale for cash within the terms of the power of attorney, and not a barter, nor a sale on time.</p>

<p>1.Appearance. A defendant who appears specially in a case for the purpose of objecting to the jurisdiction of the court over his person must specifically point out the defect which it is claimed prevents the court from acquiring jurisdiction.</p> <p>2. --: change of TENUE. A defendant by filing an affidavit for a change of venue enters a general appearance in the action.</p> <p>3. Sill of Particulars. A bill of particulars in a justice’s court which sets out a copy of the notes sued on, and alleges that there is due thereon from the defendant to the plaintiff a specified sum, is sufficient.</p>

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

<p>Error to the district court for Cass county. Tried below before Morris, J., sitting for PouND, J.</p> <p>on competency of juror, cited: Profatt Jury Trial, 177. Hathaway v. Helmer, 25 Barb., 29. On negligence, cited: 1 Thompson, 157, et seq., Id., 1105, 1108. Thurber v. Harlem Bridge, 60 New York, 326. Me Govern v. N. Y. Central, 67 Id., 418.' Cooley Torts, 675. New Haven v. Vanderbilt, 16 Conn., 421.</p> <p>cited: 2 Rorer Railways, 1032. Align v. Boston, 105 Mass., 77. Butterfield v. Western, 10 Allen, 532. Burns v. Boston, 101 Mass., 50. Mullherrin v. Delaware B. B., 81 Penn. State, 366.</p>

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

<p>Error to the district court for Saline county. Tried below before Pound, J., sitting for Morris, J.</p> <p>cited: jB. & M. v. Lent, il Neb., 201. Phelps v. JR. B., 63 111., .468. Iowa v. Michel, '41 Iowa, 402. Uhl v. Pence, 11 Neb., 316.</p> <p>cited: Dahin v. Allen, 8 Cush., 33. Myers v. Koenig, 5 Neb., 419. Leach v. Sutphen, 11 Id., 527. Streeter v. Bolph, 13 Id., 388.</p>

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

<p>1. Pleading: petition. The petition, as copied in the opinion Held, Not to contain facts sufficient to constitute a cause of action against the defendants other than Van Sickle the principal defendant.</p> <p>2.--: defalcation of county teeasuree. Said petition lays no foundation for the introduction of evidence tending to prove that the defendant Van Sickle committed a defalcation by taking money belonging to one fund to pay warrants drawn upon another fund, or by his taking money by him collected during one term of office, and applying it to purposes which should have been supplied by funds collected in a former term, and by him misapplied.</p> <p>■3. Evidence. The maxim falsus in uno falsus in omnibus, will only be applied in a case where a witness is shown to have willfully testified falsely as to a fact within his knowledge.</p> <p>4. Liability of County Treasurer: defalcation. The payment by a county treasurer, in his third term, of warrants drawn against the several funds during his second term, Held, Unddr the circumstances disclosed by the evidence, no evidence of defalcation during the third term.</p>

Motion to dissolve attachment issued in the cause overruled. Tried below before Davidson, J. on insufficiency of affidavit, cited: Miller v. Chicago, Mil. & St. Paul R. R., 17 N. W. R., 130. Hill v. Hoover, 5 Wis., 354. Sloane v. Anderson, 57 Id., 135. Willis v. Lyman, 22 Tex., 268. Order of attachment should recite filing of necessary affidavit and undertaking. Maxwell P. and P., 431. Nature of claim should be stated in the order as in affidavit.

<p>1. Action between Payee and alleged Maker of Note. In an action between the payee and the alleged maker of a negotiable .promissory note for the contents of such note, no question of endorsement before maturity, or for value, or of ther receipt of such note by the-plaintiff in the ordinary course of business, without notice of defenses or infirmities, can possibly arise.</p> <p>% Evidence. A deposition offered in a case which is wholly irrelevant to the matter in issue between the parties should be ruled out on objection.</p>

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

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

<p>Rape: change of venue. In the trial upon an indictment for rape and assault with intent to commit, the trial coming on a few weeks after the charge was made, the accused filed affidavits of leading citizens showing a strong bias and prejudice against him, so that a fair trial could not be had in that county, and the affidavits filed on behalf of the state did not deny these statements in clear and direct language. Held, That a change of venue should have been granted.</p>

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

<p>1. Taxes: sale: purchase ry county. County commissioners are authorized to purchase at tax sale for. the use of their respective counties, any real estate offered for sale, when the same remains unsold for want of bidders.</p> <p>'2. -: -: certificate. Where a tax sale was made at the time required by law, but the tax certificate was not made until three months afterwards, the sale was held to be valid.</p> <p>3. -: foreclosure of lien by county. After the time for redemption has expired, a county, after having given the notice to the land owner or occupant required by law, may bring an action to foreclose the tax lien, and may include all delinquent taxes whether accruing before or after the sale.</p> <p>4.--■: lien: limitation. The statute of limitations does not begin to run against a tax lien until the title acquired by the tax deed has failed.</p> <p>5. Attorney’s Fee. In the absence of a statute authorizing it, there is no authority in this state.to allow an attorney’s fee, and tax the same as costs in the action.</p>

<p>Motion for rehearing.</p>

<p>Error to the district court for Lancaster county. Tried below before Pound, J.</p> <p>cited : Benjamin Sales, 134. Atwood v. Lúeas, 53 Me., 508. Young v. Wakefield, 121 Mass., 91.</p> <p>cited: MeKnight v. Dunlop, 5 N. Y., 537. Jenness v. Wendall, 51 New Hamp., 63. Benjamin Sales, 167-170. • 4 Wait’s Actions and Defenses, 478.</p>

<p>Insurance: acceptance of premium after loss. An insurance company may waive the payment of the premium at the • time it is due, and if it is afterwards paid after a loss occurs, and is retained and appropriated by the company and the policy delivered, it will be a waiver of the terms of the policy, and the company cannot retain the premium and refuse to pay the loss.</p>

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

<p>Ejectment: action quia timet. When real estate is in the actual possession of another, the proper remedy to recover possession is by an action of ejectment. But if a plaintiff out of possession brings an action to quiet title and sets up the proceedings by which he acquired title, and asks to have the same confirmed and quieted, and the defendant answers in the same manner, both parties submitting their title to the court for adjudication, a decree confirming the plaintiff’s title will be valid; and it is too late after judgment to object to the mode of procedure.</p>

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

Tried below before Gaslin, J., sitting for Pound, J. The action was brought to recover on account for goods sold and delivered. Defendants plead payment and obtained verdict in their favor.

<p>Administration of Estates. A citizen and resident of this state died at his home in L. county owning property in this state and in the state of Illinois. Letters of administration of his estate were granted by the probate court of A. county, in Illinois, to the plaintiff in error, who applied to the district court of L„ county, in this state, for license to sell the real estate. Held, That such administrator had no authority as such in this state, and such license could be legally, granted only to an administrator appointed by the probate court of L. county, in this state, that being the place of domicile of the deceased at the time of his death.</p>

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

<p>1. Judgment on Service by Publication: opening. A party against whom a judgment or decree has been rendered, upon service by publication, must show that he has an interest-in the subject of the action and that he is entitled to be heard in a defense thereto, before he can be entitled to have the decree or judgment set aside under the provisions of section eighty-two-of the civil code.</p> <p>2. -: STRANGER TO RECORD CANNOT OPEN. The provisions . of section eighty-two of the civil code include within their meaning, only parties against whom a judgment or decree has been rendered, and does not include strangers to the record who-after the rendition of the judgment or decree have purchased an-interest in the subject of the suit.</p>

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

<p>Chattel Mortgage: retention or possession. Under the provisions of section 11, chapter 32, Compiled Statutes, a chattel mortgage, although filed for record, is prima facie fraudulent as to Iona fide purchasers, if the mortgagor retains possession of the mortgaged property. And the person claiming under such mortgage must make it appear that the same was made in good faith, in order to recover. Pyle v. Warren, 2 Neb., 252, and Marsh v. Burley, 13 Id., 261, adhered to.</p>

<p>1. Petition. Where the allegations of a petition are vague and indefinite, the remedy is by motion to make definite and certain.</p> <p>2.--demurrer. Where the allegations of a petition are indefinite, but the language, when given its ordinary meaning shows a liability of the defendant in favor of the plaintiff, a demurrer on the ground that the facts stated do not constitute a cause of action should be overruled.</p> <p>3. -: construction. A petition is to be construed according to the liberal rules of the code.</p>

<p>Rehearing of case reported 15Neb., 56.</p>

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

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

<p>Error to the district court for Saline county. Heard below before Morris, J., on confirmation of report of referee.</p>

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

<p>Appeal from Thayer county district court. 'Heard below before Moréis, J.</p>

<p>Error to the district court for Pawnee county. Tried below before Davidson, J.</p> <p>cited: Johnson v. Hunt, 22 Am. Law Reg., N. S., 777. White v. Gray, 68 Me., 579. Cushing v. Wyman, 44 Id., 121. Kroner v. Heim, 75 N. Y., 574. Clifton v. Litchfield, 106 Mass., 34. Simmons v. Hamilton, 56 Cal., 493. Blackburn v. Ormsby, 41 Penn. State, 97. Pettis, v. Pay, 12 R. I., 344.</p> <p>cited: Brady v. Dwrbrow, 2 E. D. Smith, 78. 7 Waifs Actions and Defenses, 381. Treadwell v. Himmelmann, 50 Cal., 11. Whitney v. Cook, 53 Miss., 551. Griffiths v. Owen, 13 M. & W., 63. Good v. Cheesman, 2 B. & Ad., 328.</p>

<p>1. Action Accruing in Foreign S'ate. A cause of action which accrued in .the state of Iowa under a statute of that state, which is not in contravention of the public policy of the laws • of this state, may be enforced in the courts of this state.</p> <p>2. -: MONEY PAID EOB INTOXICATING LIQUORS. Section 1550 of the Iowa Code of 1873, which provides that “ all payments or compensation for intoxicating liquor sold in violation of that chapter, etc. x * shall be held to have been received in violation of law and against equity and good conscience, and to have been received upon a valid promise and agreement ol ' the receiver x * x to pay on demand * * the amount of such money,” etc., is a civil liability, and entitles the party paying such money to maintain an action to recover the same, or to plead it as a set-off.</p> <p>3. -: -: recovery. Money paid to one who has thus sold intoxicating liquors in violation of law is held wrongfully by him, and the bringing of an action to recover the same, or pleading the same as a set-off is a sufficient demand of repayment.</p> <p>4. -: -: SET-OEE. On the facts stated, Held, That the answer did not constitute a counter-claim, but a set-off.</p>

<p>1, Continuance. In an action for goods sold and delivered where the answer consists of denials alone, it is not error for the court to overrule a motion for a continuance based upon an affidavit of the defendant that he has recently discovered two witnesses in another state by whom he can prove payment.</p> <p>2. Payment must be pleaded to be available as a defense.</p>

<p>1. Demurrer. A demurrer upon the ground of want of legal capacity of the plaintiff to sue will lie only where it appears on the face of the petition that the plaintiff, because of infancy, idiocy, want of authority, etc., is under legal disability.</p> <p>2. Injunction. An injunction will he granted to enjoin a nuisance that shocks the sense of decency, as the keeping of jacks and stallions and standing them for mares near and in plain view of the plaintiff’s dwelling.</p>

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

Bill of exceptions filed by the district attorney to obtain a review of a decision of Crawford, J„ sitting in the district court of Knox county.

<p>Garnishment: order on g-arnishee not conclusive. In art-action by an attachment plaintiff against a garnishee, founded upon an order of court, made upon the answer of such garnishee, to pay money into court, the order requiring such payment is-not conclusive as to the indebtedness of the garnishee, nor as-to his rights, and the question of indebtedness at the time of the service of notice of garnishment may be inquired into in an action brought by the attachment plaintiff against the garnishee. Wilson v. Burney, 8 Neb., 39.</p>

<p>Error to the district court for Colfax county. Tried below before Morris, J., sitting in absence of Post, J.</p>

<p>Action: instructions. Where the action is one for which the • law affords a remedy, an instruction which in effect states that the action should not have been brought is erroneous.</p>

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

<p>1. Marriage: breach op promise: pleading. Where in an action for breach of promise of marriage the promise is alleged to have been made at a certain date, to which the defendant pleaded infancy, it is not error for the court to permit an amended petition to be filed stating other promises and a ratification of the first after the defendant came of age.</p> <p>2. New Trial: newly discovered evidence, which is merely cumulative is not ground for a'new trial, unless the new evidence is sufficient to render clear what was before doubtful.</p> <p>3.--: objections to instructions must be made in motion. Where no objections were made to the instructions in the motion for a new trial they cannot he considered by the supreme court.</p> <p>4. Marriage: action fob. bbeach of peomise. An action for breach of promise, though in form ex contractu, yet it being impossible to fix a rule or measure of damages, the jury must determine 'the same from all the circumstances of each case.</p>

<p>Appeal from Colfax county district court. Tried below before Post, J.</p>

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

<p>1. Trial: verdict. Questions of fact, and upon conflicting testimony, are to be decided by tbe trial jury, and a verdict will not be set aside on tbe ground of a want of sufficient evidence to support it unless the want is so great as to show that the verdict is manifestly wrong.</p> <p>2. Vendor and Vendee: rescission. When, by the terms of a contract of sale of an article of personal property, the property is to be returned to the vendor, if not satisfactory to the vendee, the refusal by the vendor to receive the property will relieve the vendee from the necessity of returning it before he can rescind the contract. Such refusal being a waiver of the vendor’s right to a return thereof.</p> <p>3. The evidence examined and found sufficient to sustain the verdict.</p>

<p>1. County Courts: jurisdiction. The act of February, 1881, increasing the jurisdiction of a justice of the peace from §100 to §200, did not increase the jurisdiction of a county judge, as distinguished from the county court to the same extent.</p> <p>2. -: trial: appearance. December 13th, 1881, an action was commenced in the county court of Cuming county for §122. Summons was issued returnable on the 17th of the same month, and within the December term of said court. The defendant appeared generally and made no objection to the summons. Held, That the case stood for trial at the December term, the general appearance waiving the defects in the summons.</p> <p>3. -: JUDGMENT-ON APPEAL. On trial in the county court the plaintiff recovered judgment for $38.77j-, when (he defendant appealed to the district court, and in that court the plaintiff recovered judgment for $18,00, whereupon the district court refused to render judgment in favor of plaintiff for his costs. Held No error.</p>

<p>Specific Performance: Rescission. A purchased of B a certain lot, paying therefor $50 in cash, and agreeing in the deed as part of the consideration to erect a building of a certain description thereon. Held, That B was entitled to the performance of the contract and in case of the failure of A, after a reasonable'time upon tendering hack the money received, to a rescission.</p>

<p>1. Taxes: tax deed : evidence oe notice to Redeem. A party-claiming under a tax deed under a sale of land for taxes levied since the constitution of 1875 took effect must, where the tax deed fails to recite'the fact, prove that he has given the notice to redeem required by the constitution.</p> <p>2. -- ;--; seal. A tax deed not attested by the seal of the treasurer is invalid.</p>

<p>ORIGINAL action in quo warranto.</p>

<p>Error to the district court for Douglas county. Tried below before Davidson, J., of the first district, sitting for the judges of the third district.</p>

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

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

Original application for mandamus to compel respond ent as county clerk of Phelps county, a county in which township organization was adopted in 1883, to include in notices of election about to be published, etc., as officers to be voted for Nov. 4, 1884, “one county judge, one sheriff, one coroner, one county treasurer, one county clerk, one county surveyor, and one county superintendent of public instruction.”

<p>Appeal from district court of Antelope county. Heard below before Tiffany, J.</p>

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

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

<p>1. Instructions. It is the duty of the district court upon the trial of a cause to a jury, to inform the jury by its instructions of the issues in the case on trial. But if on such trial the issues are imperfectly stated, the party desiring a more specific instruction, must call the attention of the court thereto by a request for a correct instruction in order to secure a review of such failure by 'the supreme court.</p> <p>2. --: citations on margin. Ajudgment will not be reversed for the reason that the successful party in the district court, in preparing and submitting to the court instructions to the jury, enters on the margin thereof references to the authorities supposed to sustain the instructions, unless it be shown that the opposite party was prejudiced thereby. But such practice should not be permitted by the courts, and such references should be obliterated before sending the instructions to the jury</p> <p>3. -: construction. Instructions given to a jury must be construed together, and if, when considered as a whole, they properly state the law, it is sufficient.</p> <p>4. Railroads: damages by explosion : negligence. An instruction as follows: “Before plaintiff can recover, you must be satisfied by a preponderance of evidence that the defendant owned and was operating the locomotive boiler and engine thereto attached at the time of the alleged explosion; that there was an explosion of said boiler by reason of negligence on the part of defendant, and that this plaintiff was damaged by reason of said explosion,” Held, Not erroneous when taken in connection with other instructions given to the j ury.</p> <p>5. Master and Servant: damages : negligence. If an employer knowingly furnishes an employe defective machinery with which to work, and which machinery though dangerous is not of such character that it may not be reasonably used by the use of care, skill, and diligence, and the employe in obedience to the requirements of the employer uses and opeiates such dangerous machinery carefully and skillfully, believing there.is no immediate danger, and when it is reasonably probabl it can be safely operated with such care, the employe does not assume the risk, and if he is injured by such machinery without fault or negligence on his'part, the employer -will he held liable for the damages resulting from such injury.</p> <p>6. -: -: INSTRUCTIONS: ERROR NOT PREJUDICIAL. The following instruction was given to th e j ury : “ If the engine furnished by defendant for the use of plaintiff in its service had been in service as long as it could with safety be used without examination and overhauling, and defects existed in the boiler, which could have been ascertained by the exercise of reasonable and ordinary care and prudence, it was the duty of the defendant to have ascertained and remedied such defects, instead of suffering the plaintiff to be exposed to the peril of an explosion, and if the defendant failed to perform such duty it is liable to the plaintiff for the damages which are the direct result of such failure, unless the plaintiff contributed thereto by negligence on his part.” Séld, That the words “instead of suffering the plaintiff to be exposed to the peril of an explosion,” while quite unnecessary, were not prejudicial.</p> <p>7. -: -: notice to agents. The following instruction was given to the jury on the trial: “ Even if the agents of the defendant who had charge of the engines on defendant’s road and the duty of their repair did not positively know that the engine was unsafe, yet if it was in fact unsafe and they had received such reports in regard to it as ought to have put them on their guard and to have led by the use of proper diligence to knowledge of the facts, the defendant must be held to the same liability as if their agents had actual knowledge.” Séld, Not erroneous as not designating particularly the agents by whose knowledge the defendant would belield liable, as, when applied to the evidence, there could be no mistake as to the agents referred to.</p> <p>8. Evidence: experts. Witnesses who show scientific, or practical skill and knowledge and experience as to matteis of which they testify, are competent as experts. The weight to be given to their testimony is for the jury to determine.</p> <p>9. Depositions: objections. Objections to depositions, except upon the grounds of incompetency or irrelevancy, must be reduced to writing and filed before the commencement of the trial, or they must be disregarded by the court. Sec. 390, civil code.</p> <p>10. Evidence: books of science. Books of' science or art are competent evidence when shown to be reputable or standard works.</p> <p>11 Trial: physical examination of plaintiff suing for injuries. It is not error for the court during the progress of a trial to refuse to order the plaintiff, who sues for injuries to hia person, to submit to an examination of his person by physicians who are witnesses for the defendant, in the absence of any showing whatever that justice would be promoted thereby, and especially so when the plaintiff submits to an examination by such witnesses in the presence of the jury.</p> <p>12. Verdict. The verdict is sustained by sufficient evidence.</p> <p>13. -: damages excessive. The case examined and the verdict held to be excessive, and a new trial ordered unless a remittitur of 53,000 is filed, in which case the judgment for 56,250 will be affirmed,</p>

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

<p>1. Statutes: repeal op criminal law: effect of amendment. The repeal of a criminal law by an amendatory act which changes the repealed act only by reducing the punishment, where the repeal and re-enactment were intended to continue in force the uninterrupted operation of the old statute, will apply to crimes committed before 1he new act took effect, and the offender may be punished under the law as amended. Slate v. Wish, 15 Neb., 448, followed and apjjroved.</p> <p>2. Trial: VERDICT. The fact that a man was seen to enter, through a window, a room in which a jury had been sent to deliberate, without proof that the jury were still in the room, will not invalidate a verdict subsequently returned by the juvy, where it is shown by the testimony of the jurors that no person, other than the jurors and bailiff, entered the room in which the jury were actually confined during their deliberations.</p> <p>3. -: absence of prisoner. The voluntary withdrawal of a prisoner from the court room during the progress of his trial, and during the examination of a witness, will not entitle him to a new trial on account of his absence, when it is shown that upon his absence being discovered all further proceedings were suspended until his return, which was but a few minutes, and upon his return the witness was re-examined covering the questions asked during the absence of the prisoner.</p> <p>4. --: exceptions. In order to obtain a review of the proceedings of the district court during a trial there must be an adverse ruling by such court and an exception thereto.</p> <p>5. -•: EVIDENCE OF WITNESS DECEASED SINCE FORMER TRIAL. Where a deceased witness testified upon a former trial of the same party for the same offense, being brought “face to face” with the accused and cross-examined by him, it is competent, upon a subsequent trial, to prove the testimony of such deceased witness, and such proof does not violate the provisions of the constitution of the state which gives to the accused the right to “ meet the witnesses against him face to face. ”</p> <p>6. -----:--: EVIDENCE OF COURT REPORTER AT FORMER TRIAL. Where .a court reporter is sworn as a witness, for the purpose of proving the testimony of a deceased witness, and where such reporter testifies that the notes of the testimony of such deceased witness were accurately taken by him at the time the testimony was given, such notes may be used hv the reporter in giving the testimony of the deceased witness, for the purpose of refreshing his memory, and if necessary he may read the testimony to the jury.</p> <p>7. Evidence in the case examined and held sufficient to sustain the verdict of the jury.</p>

<p>-1. Liquors: indictment for sale of. In an indictment for the sale of intoxicating liquors it is essential that the names of the persons to whom liquors were sold, if known, should be alleged, or the fact of their being unknown should be averred in excuse.</p> <p>2. -: -. In such an indictment it is not necessary to allege the price for which the alleged liquor was sold.</p>

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

<p>Stoppage in Transitu. The right of stoppage in transita may he asserted by the vendor of goods at any time before their delivery to the vendee by the carrier. But if the goods are by the vendee sold to a third party, in good faith, for value, and they are by the carrier delivered to the vendee, who delivers them to his vendee, the lien of. the consignor is lost, and he cannot retake the goods in the possession of such vendee of his vendee. ■</p>

<p>1. Criminal Law: change of venue. An affidavit for- a change of venue on the ground of the bias and prejudice of the people of a county should be made by one knowing the facts which he swears to. One made by a non-resident who shows no means of knowledge is not-sufficient.</p> <p>2. -: -. If a party is unable to obtain affidavits from residents of a county, he may state to whom he applied for the same, the reasons given by each for refusing, and that he was unable to procure affidavits in support of 'his motion because of the refusal of the citizens to give the same.</p> <p>3. -: felony: ARREST by private person. Where a felony has been committed, and there'’ is good cause to believe that a certain party committed the same, a private person may arrest ' such party until a warrant can be procured.</p> <p>4. -: verdict. Evidence examined and held to sustain the verdict of murder in the first degree.</p> <p>5. -: EVIDENCE : ARGUMENT OF DISTRICT ATTORNEY. Where the testimony showed that the plaintiff was a herder on the plains, carried two revolvers and a knife, and made a display of them, and his companion carried four revolvers, Held, That it was not error for the district attorney to speak of him to the jury as “Billy the Kid or Jesse James sort of a cowboy,” as the testimony warranted the language.</p>

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

<p>1. Bastardy: jurisdiction how acquired. In a proceeding under the bastardy act the district court acquires jurisdiction by the filing of the transcript of the proceedings before the justice, based on a proper complaint, arrest of the accused, and order requiring him to appear before the district court for trial. The evidence of the complainant, on the preliminary examination, reduced to writing by the j ustiee and transmitted to the district court, is for the purpose of confirming or impeaching her testimony in the latter court; and errors occurring in the exclusion of testimony on such examination do not affect the jurisdiction.</p> <p>2. Evidence examined, and held to sustain the verdict.</p> <p>3. Bastardy: evidence: instructions to jury. Whereacomplainant testifies that the defendant had sexual intercourse with her at a certain time, and is the father of her bastard child, and two witnesses swear that they had connection with her about the same time, it is not error for the court to refuse to give an instruction that if they believe the last witnesses they should find for the defendant.</p> <p>4.--s—:--■: Where doubt is raised as to the paternity of a bastard child by reason of the complainant’s connection with other men about the time it was begotten, other 'facts may be shown sufficient to satisfy the jury that the accused is the father.</p> <p>5. •-. The proceeding under the bastardy act is essentially a civil one, and a preponderance of evidence is sufficient.</p>

<p>1. Practice in Supreme Court. In an equity case, brought to this court on error, where there were two defenses sought tob set up in the answer, one of them, so badly pleaded, that no finding, or judgment thereon, for the defendant could be sustained, but the other defense being sufficiently set up in the answer and sustained by the evidence, and there being a general finding and judgment for defendants, Held, That the judgment would not be reversed for the erroneous exclusion of testimony offered by the plaintiff upon and applicable only to the defense so, badly and insufficiently, set up in the answer, although such testimony ought to have been admitted.</p> <p>2.--. The equities of the case being all with the defendants, the judgment in their favor upheld.</p>

<p>Justice of the-Peace: rendition of judgment. “Upona verdict the justice must immediately render judgment accordingly.” And it is error on his part to delay the rendition oí judgment until the next day.</p>

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

<p>1. Injunction by Mortgagee against Mortgagor. A mortgagee can maintain an injunction against his mortgagor and a stranger, who are about to remove buildings from mortgaged premises, and thereby render the security scant or insufficient; add this, without regard to the responsibility or insolvency of the defendants, and for the reason that the mortgagee would be without remedy at law for such loss or depreciation of security.</p> <p>2. Removal by Mortgagor of Buildings on Mortgaged Premises: payment of mortgage debt by deed: action for waste does not lie. While the mortgagor was in possession of mortgaged premises, the defendant removed buildings therefrom which materially depreciated the security, and rendered it scant and insufficient. Afterwards the mortgagee ac- ' cepted from the mortgagor a deed of the premises in full > ayment of the mortgage debt, and sued the defendant for the i ^lue of the buildings removed. 3eld, That as long as the transa ition between the mortgagee and mortgagor was allowed to stand ,as a full payment of the mortgage debt, as between them, it must he regarded as a payment as to strangers. And the mortgagee having been paid, can maintain no action against a stranger for waste of the mortgaged premises while in the legal possession of the mortgagor.</p>

<p>Criminal Law: resisting officer: property cannot be seized by replevin on Sunday. A writ of replevin conveys no authority to a sheriff or his deputy to seize property on the first day of the jveek, commonly called Sunday. And the recap ture on the same day of the property so seized is not a resistance of an officer in the execution of his office.</p>

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

<p>1. Criminal Law: complaint before magistrate. Where a criminal complaint charges the accused in positive terms with the commission of a crime, the addition of the words that, “ the affiant verily believes the defendant is guilty of the facts charged’’ will not render the complaint invalid as not being sworn to positively.</p> <p>3. --: LIQUOR SELLING: STATING TIME OF COMMISSION OF 1 OFFENSE. The complaint charged that, “ on or about the 17th day of February, 1884, that being the first day of the week, commonly called Sunday, the defendant did sell intoxicating liuqors,” etc., in violation of the law. Held, That the time of the commission of the offense was sufficiently stated, the date of the transaction under section fourteen of the liquor law not being a material ingredient of the offense.</p>

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

<p>1. Final Order. A finding by the district court that the allegations of a petition are confessed to be true by a defendant who is in default for want of an answer is not a final order or judgment.</p> <p>2. -. To obtain a review of a case in this court there must be a final judgment upon the merits of the case in the court below.</p>

<p>1. Criminal Law: indictment referring to third persons as unknown. At common law, in cases where an indictment referred'to third parties as persons to the grand jury unknown, if upon the trial it was made to appear that the grand jury did know the names of the persons referred to, the accused would have to be acquitted on the ground of a variance between the allegations of the indictment and the proofs. But it was not necessary for the state to prove the truth of the allegation beyond a reasonable doubt.</p> <p>2.--:--: VARIANCE NOT eatal. The indictment in this case alleged that the sum of $300 was paid to plaintiff in error as a bribe by one C. B., “ and others whose names are to the grand jurors unknown.” The proof showed that the money was paid by C. B. for the purpose alleged in the indictment'. Held, That the variance was not fatal and that the district court was justified, under the provisions of section 413 of the criminal code, in disregarding it.</p> <p>3. -—: BRIBERY: EVIDENCE. Under the allegations of the indictment and the circumstances of the case as shown by the testimony, it was held competent for the state to prove other acts of bribery than those alleged in the indictment for the purpose, of corroborating the principal witness upon material fads involved in the original contract of bribery, and also for the purpose of showing the system, plan, and design of the parties involved in the transaction alleged in the indictment.</p> <p>4. Construction of Statute. Section 305 of the act to incorporate cities of the first class, etc., page 302 of the Compiled Statutes, does not repeal section 175 of the criminal code.</p>

<p>Error to the district court of Dixon comity. Tried below before Barkes, J.</p>

<p>Appropriation:, bower of legislature. The legislature has no authority to make an implied appropriation of money. It must he done by a specific act.</p>

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

<p>1. Homestead: claim op wipe afteb death oe husband. Where a wife voluntarily abandoned her husband several years ^before his death, purchased lots in her own name, erected a house thereon in which she had her home, Held, That upon his death she could notplaim the homestead of her late husband as her own, but that she had a dower interest therein.</p> <p>5. Specific Performance. An oral agreement for the conveyance of real estate when fully performed by the vendee, and possession is delivered to him, will be enforced in equity if clearly established. But vague and uncertain statements as to what a vendor intends to do in the future do not constitute such agreement.</p>

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

<p>1. Negotiable Instruments: possession of bank check: evidence. The possession by A. H. of a bank check payable to the order of P. D. S. was no evidence to P. D. S. that said check had been drawn by the drawer and delivered to said A. H. to enable him, A. H., to obtain money or credit thereon, nor is such possession evidence to go to the jury of such fact.</p> <p>2. -: '-: DELIVERY: EVIDENCE: INSTRUCTION xo jury. There being no evidence properly before the jury that the bank check in question had been delivered to A. H. to enable him to obtain money or credit thereon, an instruction which in effect told the jury that they might so find, 'Held, To be erroneous.</p> <p>3.--: ACTION ON BANK CHECK: WANT OR CONSIDERATION: notice. In an action betweemthe payee and drawer of a bank check, payment of which has been refused by the bank, where the drawer sets up as a defense the want of consideration for the drawing and delivery of such check, it is no answer to such defense that the plaintiff received the same without notice, etc.</p> <p>4. Fraud: instructions to jury. There being no sufficient evidence of fraud before the jury, Held, That an instruction which in effect told the jury that they might find that one of the parties had carelessly or negligently put it in the power of another to perpetrate a fraud on a third was erroneous as not applicable to evidence in the case.</p>

<p>1. Parties: guardian ok insane party: refusal to Appoint ON MOTION TO CONFIRM SALE not error. Whenever, in the course of a suit pending in a court of general jurisdiction, it is made to appear that one of the parties to such suit is insano, or of unsound mind, and such party is not already under guardianship, or in case the general guardian of such party fails to • appear in court and protect the interest of such insane party in such suit, it is the duty of the court to appoint a guardian ad litem for such party. But it is not error for a district court to refuse to appoint such guardian ad litem> where its attention is first called to the insanity of such party upon the hearing of a motion to confirm a sale of real estate made on execution issued on a judgment in an action at law.</p> <p>2. Judicial Sale: ereor in name of defendant. Where a judgment is rendered and an execution issued against Rosina Coons, it is not sufficient reason for setting aside a sale of real estate made on such execution, that the right name of the defendant is shown to be Rosina Kuhn.</p> <p>,3. ---: proof OF publication of notice of sale. The sheriff’s return on the execution shows the notice of sale to have been made in “ The Democrat,” a newspaper published and of general circulation in Platte county, etc. The proof of publication made by the foreman describes the paper as “ The Columbus Democrat.” The, affidavit of one of the publishers of said paper declares that “The Democrat” and “The Columbus Democrat ” are one and the same newspaper. Held, That there is no conflict or inconsistency between the sheriff’s return and the proof of publication.</p>

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

<p>Landlord and Tenant: Rights op lessee : assignment. The lessee of agricultural lands on shares for the term of one year after the crop is produced, and before the same is gathered, may assign his lease or sell his share of the crop without the consent of the lessor, unless prohibited by the terms of the lease or contract, and such assignment or sale will carry to the assignee or purchaser any option .as to the terms of division, or manner of gathering the crop, that the lessee would have Had under the' terms of the lease.</p>