Volume 17 — Nebraska Reports

Tried below before Norval, J. The opinion, taken in connection with that filed when the case was before this court at the July term, 1882, states the facts of the case. 6 Wait’s Actions and Defenses, 571. Wolf v. Marsh, 54 Cal., 228. Wells’ Res Adjudicata, § 613 et seq. Lesse v. Clark, 20 Cal., 417. Parker v. Pomeroy, 2 Wis., 122.

<p>1. Guardian and Ward: action on guardian’s bond, A. right of action on a guardian’s bond, to recover the amount remaining in the hands of the guardian, first accrues to the ward, when such amount is ascertained by the county court on the settlement of the guardian’s final account.</p> <p>2. Trial: objections to evidence. An objection to the admis-. sion of any evidence, on the ground that the petition fails to state a cause of action, may be taken at any time during the progress of the trial, and is not waived by answer or failure to demur. Ourtis & Co. v. Cutler, 7 Neb., 315.</p>

<p>Constitutional Law: sale of tax certificates. Under the constitution of this state requiring all taxes to he levied upon property so that each person shall pay his just proportion of the same, and prohibiting the legislature from releasing any of such taxes or commuting the same in any manner whatever, the legislature has no power whatever to authorize county commissioners to sell and assign certificates of tax sales of real estate purchased by the county for less than the amount of taxes due-thereon, where the property if sold will bring the full amount of such taxes.</p>

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

<p>1. Statute of Frauds: part performance. Part payment of the purchase price of real estate is not such part performance as to take an oral contract of sale out of the statute of frauds.</p> <p>2. Real Estate : sale. An oral agreement for the sale of real estate must possess the elements of certainty, and he established by clear and satisfactory proof.</p>

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

<p>1. Judgment: vacating: trial. In proceedings under sections 602 and 603 of the civil code to vacate a judgment rendered at a previous term of court, if errors of fact are alleged issue may be joined and a trial had. In such case the court must first pass upon the grounds to vacate the judgment. If sufficient is shown, the court must next enquire into the cause of action or defense. Both issues being found in favor of the petitioner, the judgment should he vacated and a new trial granted, but not otherwise.</p> <p>2. -: -: -. In case the defendant in such proceeding, being in court and resisting the application, fails to controvert the allegations of fact in the petition they should be treated as admitted, and if sufficient is alleged to warrant the vacation of the judgment it is not error for the court to decide the matter upon the facts so alleged and admitted to be true without the formality of a trial.</p> <p>3. -: construction or statute. The provisions of section 318 of the civil code are not applicable to proceedings under sections 602-3 to vacate judgments rendered at a previous term of court. They are only applicable to the causes named in section 314, when the grounds there specified could not with reasonable diligence have been discovered before the adjournment of court.</p> <p>4. -: •-: pleading. The allegations of the petition for vacation of a judgment rendered at a previous term examined, and Held, Sufficient.</p>

<p>1. Criminal Law: recognizance. A criminal recognizance requiring a person who has heen charged with the commission of a felony and held to hail hy an examining magistrate to appear before the district court, on a day certain, to answer the charge preferred against him, is a sufficient compliance with section 307 of the criminal code, if the date fixed in the recognizance for the appearance of the accused is in fact the first day of the next term -of said court.</p> <p>2. -: -. A recognizance taken hy an examining magistrate and signed hy all the obligors, is sufficient and will hind all, whether their names are entered in the body of the same or not. provided it complies with the law in other respects.</p> <p>3. Demurrer. A demurrer admits all allegations of the pleading to which it is made, and if an exhibit attached to a pleading is not “made a part” thereof, the pleading will yet be held good on demurrer, if the facts stated therein, including the giving of the instrument, are sufficient to constitute a cause of actipn.</p> <p>4. Becognizance taken by County- Judge: seal not required. “Where a county judge, acting as an examining magistrate, requires the accused to enter into a recognizance for his appearance at the next term of the district court, and such recognizance is given with sureties which are approved by such county judge, the endorsement of such approval upon the recognizance is not required to be attested by the seal of the county judge.</p>

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

<p>Motion for rehearing.</p>

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

This was an action brought in the district court of Antelope county, before Tiffany, J., for the issuance of an injunction restraining the defendant Wilson, county clerk, and other county officers, from removing their respective records from Oakdale to Neligh, which had been declared the county seat of said county by virtue of a special election held therein Oct. 2, 1883, under the provisions of art. III., chap. 17, Compiled Statutes.

<p>Error to the district court of Hamilton county. Tried below before George W. Post, J.</p> <p>Letson v. Kenyon, 1 Pac. Rep., 562. Sornberger v. Lee, 14 Neb., 193.</p> <p>Stoddard v. Roane, 16 Ohio State, 566. Pickett v. King, 34 Barb., 193. Angelí on Limitations, 249. Winchell v. Hicks, 18 New York, 567. Roosevelt v. Marks, 6 Johns. Ch., 266. Marienthal v. Mosler, 16 Ohio State, 566.</p>

Tried below before Wakeley, J. The action was one of ejectment brought by Boggs & Hill against Housel. They claimed title as grantees of the original owner of the lands in controversy. Housel claimed title under tax deeds dated May 12, 1875, and April 19, 1876, with possession from 1875. The action was commenced in 1880.

<p>•Error to the district court for Seward couuty. Heard below before Savidge, J,, sitting for Norval, J.</p>

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

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

<p>1. Malicious Prosecution: evidence. In an action for malicious prosecution growing out of a criminal prosecution before a justice of the peace, the complaint and warrant are competent evidence even though they are so unskillfully drawn as to be open to an objection, in the criminal proceeding, for informality, if a criminal act is charged therein.</p> <p>*2. -: -: When a complaint charges that a person, naming him, “has unlawfully and feloniously taken, stolen, and carried” the property ‘‘off,” and in other respects sufficiently charging the crime of larceny, this wiU be held sufficient to sustain an action for malicious prosecution, where the party charged was arrested under a warrant issued upon such complaint, if the prosecution is shown to be malicious and without probable cause.</p> <p>3. -: arrest on warrant. Where a constable has a warrant for the arrest of a person charged with a crime, goes to him, informs him of that fact, reads the warrant to him, and informs him that he is under arrest, and the person thus arrested submits to the authority of the constable, agrees to go with him to the office of a magistrate for the purpose of trial, hut by the consent of the officer goes to the magistrate’s office_ alone and again submits himself to the custody of the officer and of the magistrate, procures an adjournment of the cause for a week and gives the necessary undertaking, with the required surety, for his appearance upon the day to which the cause is adjourned, and on that day appears for trial, this is a sufficient arrest and imprisonment upon which to base an action for malicious prosecution.</p>

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

<p>Mandamus: abatement. An. application for a peremptory writ of mandamus against a sole incumbent of a city office will abate 'upon such, incumbent ceasing to hold or occupy such office, except in cases where such incumbent may resign such office for the purpose of evading such writ.</p>

<p>Appeal from the district court of Eichardson county. Heard below before Broady, J.</p> <p>Palmer v. Windrum, 12 Neb., 494. Calce v. Pede, 49 Conn., 483. Young v. Darrell, U. S. Supreme Court, 1883. Huter v. Glasgow, 79 Penn. State, 79. Northwestern Insurance Co. v. Nelson, 12 Rep.,- 161. Fitzgerald v. Fitzgerald, Id., 720. Dolph v. Barney, 14 Am. Law Reg., 748. Washburn v. Boesh, 13 Brad., 268. 6 Wait’s Actions and Defenses, 472.</p> <p>H. & M. v. Finch, 3 Ohio State, 449. Hodge v. Gilman, 20 111., 441. Mon-tag v. Linn, 23 111., 551. VanHorn v. Bell, 11 Iowa, 465.</p>

<p>Error to the district court for Gage county. Tried below before Davidson, J.</p> <p>Mears v. Morrison, Breese, 174. Kersted v. Railroad, 69 N. Y., 345. Taft v. Brunter, 9 Johns., 334. Stone v. Wood, 7 Cow.,, 451. 1 Wash. Real Prop., chap. 10, § 2. Gartrell v.. Stafford, 12 Neb., 545. Holland v. Hoyt, 14 Mich., 238. Kittle v. St. John, 7 Neb., 73. Allen v. Saunders, 6 Neb., 443.</p> <p>Nutt v. Humphrey (Kan.), 3 Pacific Rep., 787. Butler v. Kaulbaeh, 8 Kan., 668. Walsh v. Barton, 24 Ohio State, 28. Benj. Sales, § 219, 3d Amer. Ed. Schuyler v. Leggitt, 2 Cow.,, 660. Koplitz v. Gustavus, 48 Wis., 48. Wade on Notice, § 586.</p>

<p>1. Telephone Companies: discrimination not allowed. When a corporation or person assumes and undertakes to sup ply a public demand, made necessary by the demands of the commerce of the country, such as a public telephone, such demand must be supplied to all alike without discrimination.</p> <p>2. -: -: TELEPHONE COMPANY IS PUBLIC SERVANT. Respondent is the owner of and is conducting a system of public telephone exchanges in Nebraska and Iowa, including in its circuit about fifteen hundred telephone instruments, supplied by it to that number of subscribers, upon the terms fixed by itself. Relator applied to be admitted as a subscriber and was refused. He tendered a full compliance with all the rules of the company. His place of business was accessible, no reason being shown why his request should not be granted. Held, That' the telephone is a public servant in the commerce of the country, and that respondent having undertaken to supply the demand must supply all alike without discrimination, and that having undertaken to supply the demand in the city of L., wherein relator resides, and being fully able to furnish him with a telephone instrument the same as its other subscribers, it was its duty to do so.</p> <p>3. -: MANDAMUS LIES TO COMPEL FURNISHING OF INSTRUMENTS. Telephone companies being common carriers of news, all persons are entitled to equal facilities in the enjoyment of the benefits to be derived from the use of the telephone, and where no good reason is assigned for a refusal by a telephone company to furnish a telephone instrument to a person who desires to become a subscriber, and tenders a full compliance with all the rules established for other subscribers, a writ of mandamus will issue to compel such company to furnish such person with the necessary instruments.</p>

<p>1. Sale: GOOD-WILL. The good-will of a mercantile or other business is property for which, in a proper case, the purchaser is liable.</p> <p>2. Assignment set forth in opinion, Held, To be absolute and without limitation.</p> <p>3. Hew Trial: COSTS. Where upon a new trial being granted the plaintiff was permitted to amend his petition by stating more fully a cause of action arising on his contract—not a new cause of action, Held, That an order requiring him to pay only a part of the costs then accrued would not he set aside.</p>

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

<p>Practice in Supreme Court. When no question of law is presented in a petition in error, nor raised hy the record, and there is sufficient evidence to sustain the verdict, the judgment of the trial court will he upheld.</p>

<p>Complaint before Magistrate. A complaint in a criminal prosecution must be sufficiently specific to negative the innocence of the party sought to be charged with an offense. And when the statute mates it a crime to injure growing trees, “the property of another,” it is necessary that the ownership of the injured property be alleged, giving the name of the true owner.</p>

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

<p>1. Negotiable Instruments. A note in the following form: “October 4, 1882. On March 1, 1883, for value received, I promise to pay Anna M. Wilson or order four hundred dollars, with interest from this date. This note shall become due immediately upon Anna M. Wilson delivering possession to me of the north-west quarter of section 12, town 6, range 6E., in Gage county, Nebraska.” Signed. Held, To be negotiable.</p> <p>2. -: bona pide purchaser. A holder of negotiable paper who takes it before maturity for a valuable consideration, in the usual course of trade, without knowledge of facts which impeach its validity between antecedent parties, holds it by a good title. Johnson v. Way, 27 O. S., 374.</p> <p>3. -: -: evidence. To defeat a recovery thereon it is not sufficient to show that he took it under circumstances which ought to excite suspicion in the mind of a prudent man. Id.</p> <p>4. -: -: -. To have that effect it must be shown that he took the paper under circumstances showing bad faith or want of honesty on hii part. Id.</p> <p>5. -: -:--. Circumstances tending to show bad faith or fraud in taking such 'paper are admissible in evidence, and the establishment of such bad faith or fraud, whether by direct or circumstantial evidence, subjects the holder of paper so taken to defenses existing between antecedent parties. Id.</p>

<p>Appeal to District Court. Where on appeal to the district court the defendant answers the cause of action set forth in the plaintiff’s petition without objection that it is not the same as was tried in the court from which the appeal is taken, he will be deemed to have waived all objections upon that ground.</p>

<p>1. County Clerk: numerical index: fees. The numerical' index of instruments affecting the title of real estate filed in the office of the county clerk, which he is required to keep, is a public record, and fees received by him for a certified copy of the same must be reported to the county board.</p> <p>2. -: -: -: mandamus. Where the law has provided a tribunal to which the county clerk is required to report the fees received by him by virtue of his office, it is the duty of such tribunal to require him to make such report, and a mere taxpayer cannot (unless it refuses to act) proceed against such clerk by mandamus to return certain fees in his report.</p>

<p>Schools: division of district: adjustment of indebtedness. Under the school law in force in 1878, where a new district was formed in whole or in part from one or more districts possessed of a school-house or other property, it was the duty of the county superintendent to ascertain and determine the amount justly due to such new district from the district out of which it may have heen in whole or in part formed, and no action can he maintained hy the new against the old district to recover for its share of such property without such determination.</p>

<p>Error to the district court for Richardson county. Tried below before Gaslin, J., sitting for Broady, J.</p> <p>Angelí Water Courses, § 4. Hoyt v. Hudson, 27 Wis., 661. Evlriok v. Richter, 37 Wis., 226. Cooley Torts, 575. Flagg v. Worcester, 13 Gray, 601.</p> <p>JDavis v. Londgreen, 8 Neb., 43. Boyd v. Conklin, 20 N. W. R., 598, and cases cited.</p>

<p>Error to the district court for Gage county. Tried below before Weaver, J.</p> <p>Leach v. Sutphen, 11 Neb., ,527. Main_v. Cooper, 25 N. Y., 186. Winterfield v. Stauss, 24 Wis., 894. Bridewell v. Bancroft, 4 W. L. M., 617. Mecharn v. McKay, 37 Cal., 154. Mitchell v. Davis, 20 Cal., 47. Taylor’s Landlord and Tenant, 790. Gray v. Gray, 3 Litt., 465. Caswell v. Ward, 2 Doug., 374.</p> <p>Nebraska cases referred to in opinion. Taylor’s Landlord and Tenant, 437, 439. Perrin v. Pepper, 34 Mich., 292. Williams v. Sprigg, 6 Ohio State, 585. Carr v. Williams, 10 Ohio, 310.</p>

<p>Constitutional Law: amendments to constitution. The votes necessary to adopt an amendment to the constitution under the provisions of sec. 1, Art. XV. of the same, must he a majority of all those cast in the state at that election for senators and representatives.</p>

<p>1. Stay of Execution: bond mat be amended. The filing of a stay bond under the provisions of section 477e of the civil code is such a proceeding as is referred to in the last clause of section 144 of the code, and such bond may be amended.</p> <p>2. -: -. Where a judgment debtor has in good faith, and within the time provided by law; filed a bond for stay of execution, and which bond has been approved by the proper approving officer, notice of such approval being given such debtor; and where it is afterwards ascertained that such bond fails to conform to the requirements of law, and upon application being made upon notice or leave to amend, and such leave being granted by the court, and the defective bond being amended, such amended bond, upon an application for a mandamus to compel the issuance of an execution will be held good, and a writ of mandamus denied.</p>

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

<p>1. Attachment: undertaking. An undertaking in attachment, signed by the attachment plaintiff as principal and a firm or partnership as surety, is prima fade good. Cobb, Ce. J., dissents.</p> <p>2. -: bond: sureties. Under the provisions of section fourteen, page 73, of the Compiled Statutes, an attorney-at-law should not he allowed by the clerk to become surety upon an attachment undertaking. But if the clerk, in violation of such statute, approves such undertaking, the surety is bound thereby, and the undertaking will be held good upon a motion to discharge an attachment, for the reason that “no undertaking has • been filed as required by law.”</p>

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

<p>Execution: SEVERAL writs. When two or more writs of executions against the same debtor are delivered to an officer on the same day, no preference can be given to either; if a sufficient sum of money be not made to satisfy all the executions, the amount shall be distributed to the several creditors in proportion to the amount of their respective demands. This rule applies to executions issued by justices of the peace.</p>

Original application for mandamus. The ordinance under which respondent claimed the license money is as follows: “Obdinance No.- 2. “An ordinance to license and regulate, and to prohibit without license, the sale of malt, spirituous, and vinous liquors in the city of Wymore, Gage county, Nebraska, and to punish the sale of intoxicating liquor without license, or to minors, insane persons, habitual drunkards, and Indians, and after certain hours and on certain days, and to…

<p>1. Indictment. In charging the commission of an offense in an indictment, it is not necessary that the exact words of the statute he used, provided the words employed are the equivalents in meaning of those contained in the statute.</p> <p>2. --: CHARGING SHOOTING WITH intent to kill. In an indictment under section 16 of the code for shooting with intent to kill the word “ maliciously” was omitted, hut it was alleged that the act was “unlawfully, willfully, purposely, and feloniously ” done. Held, That these words included the full signification of the word “maliciously,” and that verdict would not he set aside in the indictment quashed as not stating an offense.</p>

<p>1. Landlord and Tenant: surrendering lease. Where a lessee was in possession of a farm under a lease from the owner for a term of five years, which lease gave the lessee an option to huy the farm at any time during the term, at a specified price, and within the second year of the term he received and accepted a new lease from the owner for a term of two years, which second lease contained a clause that the lessee would, at the end of said term, quietly and peaceably yield up possession of the said premises unto the lessor in as good condition as the same were when entered upon, ordinary wear or damage by fire excepted, HeM, A surrender of the former lease by operation of law.</p> <p>2. Trial: evidence. The question of the admissibility of evidence on the ground of relevancy cannot be raised in a cause tried to a court without a jury.</p>

<p>Appeal from Burt county. Heard below before Wakeley, J.</p>

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

<p>1. Answer: general dental. An answer consisting of a general denial of each and every allegation in, the petition places in issue all the allegations contained therein.</p> <p>2. -: -: burden of PROOF. In an action upon a promissory note (in the district court) an answer consisting of such general denial is a denial of the execution of the note, and the burden of proof is upon the plaintiff to establish its execution and delivery before it is admissible in evidence.</p>

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

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

<p>Contract: construction. The contract, as set up in the petition and stated at length in the opinion, Seld, Not void, as contravening the provisions of any statute repugnant to justice against the general policy of the common law, or as tending to impede the due administration of justice.</p>

<p>1. Assignment: peepebeing cbedxtobs. The act of the legislature of 1877 relating to voluntary assignments, Compiled. Statutes, 1881, Chap. 6, did not prevent a debtor in failing circumstances from preferring a creditor by a separate and independent conveyance unconnected with the transaction of making an assignment.</p> <p>2. --: -: chattel mortgage. When a debtor executed a chattel mortgage to secure the payment of a Iona fide pre-existing debt, and soon thereafter executed a general assignment of his property for the benefit of his creditors, but which assignment was abandoned by the .assignee and all parties interested, and the mortgaged property taken possession of by the mortgagee, the mortgage will be upheld even though it was executed on the same day and near the same time at which the assignment was executed.</p> <p>3. -: verdict: special verdict: effect. When the general and special verdicts of a jury are consistent with each other ■ and’are supported by sufficient evidence,' the special, verdict will be treated as final upon all questions directly passed upon by such verdict.</p> <p>4. Evidence: cross-examination: re-examination. When a witness was called to testify as to the value of a stock of goods which he had been called to appraise, and when the value as given by him in his testimony exceeded the value as ascertained by the appraisement, and upon cross-examination it was shown that he was present at a sale afterwards made, and for the purpose of showing that his valuation of the whole stock wás wrong, it was sought to be shown by him that the goods were well sold, that he made purchases at such sale, and the whole proceeds were much less than the valuation fixed by him, it was not error for the court to permit the witness to testify on re-examination as to what goods he and others bought, what they paid, and what was their value, for the purpose of showing the correctness of the estimate of value as testified to in his examination-in-chief.</p>

<p>1. Verdict Sustained. On -the facts proved, Held, That the verdict is sustained by a preponderance of the evidence.</p> <p>2. Argument of Attorney. An attorney Will not be permitted in the argument of a.case to the jury to make assertions or insinuations of the existence of facts not in evidence. If he 4° so the verdict may be set aside; but to authorize the setting aside of the verdict the statements must have been of such a character as may reasonably be supposed to have influenced the jury.</p>

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

<p>1. Res Adjudicata. When certain questions presented by the record in a case are decided by the supreme court, and no motion for a re-hearing filed, the court will adhere to such decis" ion in that case at least, if it is a second time brought into the court for review. Hiatt v. Broolcs, ante p. 33.</p> <p>2. Taxes: foreclosure of tax lien. Where a decree for a lien for taxes upon- two tracts of land was general as to both, and not upon each tract, Held, That the decree would not therefore be reversed, but apportioned on the several tracts in proportion to the amount of taxes due thereon.</p>

<p>1. Pleading: petition. The petition substantially set out in the opinion, Held, To state cause of action.</p> <p>2. -: double aspect. The petition though primarily framed for the purpose of a judgment guia timet, yet, Held, Sufficient to sustain judgment of foreclosure.</p> <p>3. Mortgage: purchase of outstanding title. A mortgagee. in possession before foreclosure, buying or paying off an outstanding lien for the purpose of protecting his possession, shall have what he has paid with legal interest and no more.</p> <p>4. -: rents and profits. A mortgagee in possession of 'productive real property before foreclosure, Held, Liable for net. rents and profits.</p>

<p>Justice of Peace: appearance: setting aside judgment. A defendant in a ease 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, will not be entitled to have the judgment against him set aside as provided in section 1001 of the civil code.</p>

<p>1. Usury: costs. In an action on a contract where it is plead that illegal'interest has heen contracted for or taken or reserved, and the truth of such plea shall be proved or admitted, the defendant is entitled to recover costs.</p> <p>2. -: -. Such recovery will not be confined to the costs made or incurred on question of usury, but will apply to the costs of the action.</p> <p>3. Costs: motion to re-tax. A motion for re-taxation of costs made necessary by mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order, may be made at any time within three years after judgment upon reasonable notice to the adverse party, or his attorney in the action..</p>

<p>1. Mandamus: bight to maintain. Where by law it is made the special duty of the incumbent of a public office to perform certain ministerial duties as such officer, and such duties cannot be legally performed by any other person to the full extent required by law, a writ of mandamus will issue upon the application of any person interested to compel the performance of such ministerial duty.</p> <p>2. Liquors : wholesale dealeb. The ordinance of the city of Omaha makes it the duty of the city marshal, on the first day of each and every month, to ascertain and report to the city council the names of all persons or firms engaged in the liquor traffic in said city, giving their place of business, whether licensed or unlicensed, and to notify any unlicensed liquor dealers to at once • cease the traffic, and to make complaint against all persons selling liquor without license. Seld, That the ordinance applies to all persons engaged in the liquor traffic, and it is the duty of the marshal to comply with the requirements of the ordinance without reference to the quantity of liquor sold at each sale by the person engaged in the traffic.</p> <p>2. -: -. The act entitled “An act to regulate the sale of malt, spirituous, and vinous liquors,” etc., approved February 28, 1881, Compiled Statutes, chap. 50, commonly known as the “ Slocumb ” law, applies alike to all persons who are engaged in the sale of malt, spirituous, and vinous liquors. Wholesale dealers are not exempt from its provisions.</p>

<p>Construction of Statute. .The “act concerning counties and county officers,” approved March 7,1879, did not take effect till September 1st of that year. The provisions of section 26 of that act have no application to valid county bonds issued before September 1st, 1879.</p>

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

<p>1. Verdict: special findings. Where, upon, the trial of a cause to a jury, special findings are returned by the jury which are inconsistent with the general verdict, the special findings must control the general verdict, and the court should render judgment accordingly.</p> <p>2. Forcible Detention: lease not expired. In an action for the forcible detention of real property by a lessee who is charged with holding over after the expiration of his term, if upon trial it is ascertained that the term for which the real estate was leased has not yet expired, the cause should be dismissed at the costs of the plaintiff in the action.</p> <p>3. Verdict: special findings: judgment. Where special findings are submitted to a jury by a justice of the peace upon the request of a plaintiff over the objections of a defendant, and the findings of the jury are against such plaintiff and in favor of the defendant, and are inconsistent with the general verdict; which is in favor of the plaintiff, the justice should render judgment in accordance with the facts found by the special verdict.</p>

<p>3. Opening Judgment: service of notice. The proceeding under section 82 of the civil code, to open a judgment or decree rendered upon service by publication only, is a continuation of the original action, the exercise of a right existing by virtue of the character of the service, and the attorney for plaintiff in the action continues to be such, at least for the purpose of service of notice to open the judgment or decree, until the expiration of the time within which the motion to open the judgment may be made.</p> <p>3. -: -. In such proceeding service of notice of the application upon the attorney for plaintiff in the action is a sufficient service under section 575 of the civil code.</p> <p>3. -: order interlocutory. An order opening a judgment or decree under the provisions of section 82 of the civil code is an interlocutory order, made necessary by the character of the service, and by the application of the defendant in the action within the time and in the manner fixed by law.</p>

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

<p>Constitutional Law: jury eee. The constitution does not deprive the legislature of the aiithority to impose a reasonable jury fee to he taxed as a part of the costs against a person convicted of an offense.</p>

<p>1. Fraud: conveyances to defraud creditors: evidence. Where there are fraudulent transfers of property to prevent the collection of debts, it is the duty of the court to ascertain if possible the time and manner of the creation of the several debts in order to determine whether the transfers were made after the debts were incurred, or with an intention to create debts.</p> <p>2. --: presumption'. Fraud will not be imputed where the circumstances and facts upon which it is based may consist with honesty of purpose.</p> <p>3. -: burden of proof. A party attacking the validity of a transaction assumes the burden of proof.</p> <p>4. Parent and Child. A father.may emancipate his minor son and relinquish all right to his future earnings, and such relinquishment may he implied from circumstances. •</p>

<p>1. Mortgage Foreclosure: sale: confirmation. Where, after the foreclosure of a mortgage and a sale of the mortgaged premises to the beneficiaries under the decree, and the confirmation of the sale, the mortgagor satisfies the decree, the money so received by the beneficiaries will avoid the sale and confirmation.</p> <p>2. -: DEED TO PURCHASER: NOTICE TO DEBTOR. When a long period of time elapses between the confirmation of a sale and the execution of the sheriff’s deed, the debtor should be notified of the application for an order requiring the then sheriff to execute a deed to the purchaser.</p>

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

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

<p>1. Married Women: possession of peopeety by husband. At common law, in order to constitute a reduction of the personal property of the wife to the possession of the husband so as to vest the title to the property in him, the act and the intent to so hold the property, must exist. The mere receiving of the money of the wife as agent or trustee with the purpose of investing it in real estate in the name of the wife would not he such reduction if the investment were made prior to the existence 01 the indebtedness to the satisfaction of which the property is sought to be appropriated.</p> <p>2. -: debts. Real estate purchased with money inherited by the wife from the estate of her father and placed in the hands of the husband as agent or trustee for the purpose of having it invested in real estate in the name of and for the wife, will not be held liable for the separate debts of the husband, where the money was invested in such real estate after the passage of the act of 1871 relative to the rights of married women, and before the existence of the indebtedness of the husband for the satisfaction of which the property is sought to be applied.</p> <p>3. Findings Sustained. Conclusions of law reported by the referee, Held, Sustained by the findings of fact.</p>

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

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

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

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

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

<p>¡Practice in Supreme Court. Assignments of error Which in any manner bring before the court a question presented by the record -will not be stricken out of the petition in error.</p>

<p>Error to the district- court for Lancaster county. Tried1 below before Pound, J.</p>

<p>3. Husband and Wife: mortgage not signed by wife: dower. Where a mortgage upon real estate was executed by a husband alone, and afterwards a second mortgage upon the same premises was executed by both husband and wife, which mortgage was thereafter foreclosed, both husband and wife and the - first mortgagee being made parties, a sale under the decree was thereafter had, the sale confirmed, and a deed made to the purchaser, but the proceeds of the sale were not sufficient to satisfy the first mortgage, Held, That the wife’s right of dower in the mortgaged premises was barred.</p> <p>$.--: foreclosure of mortgage: wife’s dower interest. A married woman who has not joined Yrith her husband in the execution of a mortgage upon real estate not the homestead, if made a party defendant in an action to foreclose the mortgage, must assert her inchoate right of dower in the mortgaged premises or she will be barred by the decree.</p>

<p>Appeal from the district court- of Dodge county. Heard below before Post, J.</p>

<p>1. Constitutional Law: amendment of mechanic’slien law. The act entitled “An act to amend chapter 42 of the General Statutes of Nebraska, entitled ‘Mechanics’Liens,’” approved February 28, 1881, examined, and, Held, Not inimical to the provisions of section 11, of article 3, of the constitution, which is in the following words: “ No bill shall contain more than one ... , ,, , , • subject, and the same shall be clearly expressed m its title, And no law shall be amended unless the new act contains the section or sections so amended, and the section or sections so •amended shall be repealed.” Nor is the said act affected by any irregularity attending its passage through the various stages of legislation.</p> <p>2. Mechanic’s Lien: apportionment of lien. The building cofitracted for and erected being a unit, and the contract for its erection containing a convenient method of apportioning its cost between the two owners, the same will be adopted by the court as a proper method of apportioning, the lien upon the separate lots upon which it is situated.</p> <p>3. -: DELIVERY OF MATERIALS AT DIFFERENT DATES. The lumber furnished by plaintiff for the erection of defendants’ building was delivered in five parcels of nearly equal value— one on the 12th, one on the 14th, one on the 17th, one on the 20th, and one on the 28th days of September, and the sworn statement for lien was filed for record on the 25th day of November of the same year; Held, That the same constituted but one delivery, and that the lien was filed in due time to cover the whole.</p> <p>4. --: PAYMENTS BY contractor. All payments of money made by the contractor to the plaintiffs or their executor on general account, or the application of which were not made by him, and which were received after the first delivery for defendants’ building, should be apportioned between the several .accounts of plaintiffs for lumber by them furnished for the several buildings of the said contractor then in course of construction, in proportion to the amount due and remaining unpaid for each at the time of each such payment.</p>

<p>1. Error: supersedeas bond. Ordinarily the filing of a supersedeas bond is not essential to secure a review of a cause upon error. Such bond is only necessary if a stay of proceedings is desired pending the review of a judgment or final order.</p> <p>2. Final Judgment: exceptions. It is not necessary that exception be taken to a final judgment to entitle a party to have it reviewed.</p> <p>3. Replevin: damages. Where the defendant in replevin lawfully held the property by virtue of a levy under an execution, the amount of which he was required to collect (the verdict being in his favor), the measure of his damages, within the value of the property, was the amount due upon the execution with legal costs and charges.</p>

<p>1. Parties: intervenors. Under the code of civil procedure of this state new parties to an action by way of intervention are permitted only where the intervenor claims some interest in the subject of the action. In an ordinary action on a promissory note, and in which action an order of attachment has been issued and levied upon real estate the title to which is held by a third party, the question of the ownership of the real estate cannot be adjudicated by the intervention of the holder of the title, that question not being involved in any degree in the action. In such case a judgment against the maker of the promissory note, and an order that the attached property be sold, will not debar the holder of the legal title from afterwards claiming' title to the real estate.</p> <p>2. Attachment: land of non-resident: creditor’s bill. Where an attachment is levied upon real estate belonging to a non-resident debtor, or which it is claimed is owned by him, whether held in his own name or not, the attaching creditor acquires a lien upon the interest of the debtor, if any, in the land, which he may enforce after .judgment by an action in the nature of a creditor’s bill. Such an action may be maintained even though the original judgment was obtained without other service than by publication in a newspaper.</p> <p>3. Creditor’s Bill: consideration: fraud. In an action in the nature of a creditor’s bill for the purpose of subjecting real estate to the payment of a judgment obtained upon a promissory note, the question of the consideration or purpose for which the note was executed is an immaterial one. Wlhere it is alleged that the note was given only as a memorandum to show the amount to be paid to the payee out of the proceeds arising from the sale of property placed in the hands of the maker by the payee for sale, and that the maker of the note, contrary to his instructions, exchanged the property for real estate, causing the title to be taken in the name of his wife, and the holder of the note brought an action thereon, attached the real estate, procured a judgment for the amount due, it was. ffeld, That sqch action on the part of the payee was an abandonment of any equities he might have arising out of the original contract, and in order to subject the real estate to the payment of his judgment it would he necessary to prove the fraudulent character of the conveyance the same as any other-creditor.</p>

<p>1. liquors: action by married woman: evidence. In an, action by a married woman, for herself and minor children, for damages for loss of means of support caused by the sale of intoxicating liquors to her husband, producing his intoxication and failure to provide for his family, after proof of facts tending to show that before such intoxication he provided for and supported his family, and that afterwards, and during the time of the intoxication, he failed to support the family, it is not error to allow the wife to testify as to the amount necessary to support the family in ordinary comfortable circumstances, suitable for people in her condition. Such testimony would not he competent as establishing the measure of damages, but would be competent as tending to inform the jury as to the value of the means of supportof which the plaintiff in theaction hadbeen deprived.</p> <p>3. -: -: —;-: error without prejudice. When upon a trial of such action for damages, the defendant, a druggist, by his answer denied the sale of liquors to the husband, hut upon the witness stand testified that he did on one or two occasions sell him liquor with quinine in it for malaria, and upon cross-examination he was, over the objection of his attorney, required to state whether he had a permit or license to sell liquors, JHeld, That his failure to claim the protection of a license or permit was, for the purposes of that trial, an admission that none existed, and therefore if there was error in the ruling of the court it was without prejudice.</p> <p>3. Instructions: exceptions. Objections to instructions to a trial jury will not be noticed by the supreme court, unless the attention of the trial court is first called to them by the proper exceptions taken at the time the instructions were given. .</p> <p>4. Trial: verdict. Questions of fact, and upon conflicting testimony, are to be decided by the trial jury, and a verdict will not he set aside on the 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. Sycamore, etc., Co. v. Grundrad, 16 Neb., 529.</p> <p>■5. Liquors: sale to husband: damages. The rule of law, that where damages are suffered from the wrongful act of another the person suffering the injury must make all reasonable exertions to protect himself from the consequences of such wrongful acts, lias no application to actions by a married woman for herself and children for loss of means of support caused by the wrongful sale of intoxicating liquors to the husband and father.</p> <p>6. -: sale by druggist. A druggist without a permit is absolutely prohibited from selling intoxicating liquors upon any pretext. Such druggist with a permit is equally prohibited from selling except in the best of faith, and strictly for the purposes specified by law.</p> <p>7. The evidence examined, and found sufficient to sustain the verdict.</p>

<p>Action on Promissory Note: defense. Where, in an action on certain promissory notes the maker, as a defense, alleges false representations of the payee by which he was deceived and sustained damages, Held, That if the evidence fails to establish false representations technical objections based thereon will not be considered.</p>

<p>Action on Account: judgment not supported by evidence. In an action on an account, where a jury is waived and a trial had to the court, if the judgment is not supported by the evidence it will be set aside.</p>

<p>Mills and Mill-dams: costs. In proceedings in ad quod damnum where there is no resistance the plaintiff is liable for the costs, and the provisions of sections 565 and 570 of the code in regard to permitting judgment for a specified sum to be rendered against the plaintiff do not apply.</p>

<p>1. Trial: verdict. Questions of fact, and upon conflicting tes-. timony, are to be decided by tbe trial jury, and a verdict will not be set aside on the 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. Sycamore Co. v. Grumdrad, 16 Neb., 529. ,</p> <p>2. Replevin: trial : levy : evidence. Where, in an action of replevin of property levied upon by an officer as the individual, property of A, and the property is claimed by the plaintiff as the partnership property of A & B, and upon trial the jury find specially that the property in controversy was the sole property of A at the time of the levy, the question of the right of the creditors of A to levy upon the partnership property of A & R becomes unimportant, and the refusal of the trial court to admit testimony tending to prove that the indebtedness of the partnership exceeded the assets, Held, Not prejudicial to plaintiff.</p>

<p>Appeal from Nemaha county district court, Pound, J.,, presiding.</p> <p>Fletcher v. Daugherty, 13 Neb., 224. Mallory v. Railroad, 35 New York,, 174. McLelland v. Bishop, Ohio, 1884.</p> <p>Pope v.. Hooper, 6 Neb., 181. Schooley v. Romain, 31 Md., 574. Bank v. Beck, 8 Kan., 660. Wortendyke v. Meehan, 9-Neb., 229.</p>

<p>1. Railroad: eminent domain: appeal: trial: argument Where a railroad company has condemned real estate for right, of way, and an appeal from the award of damages has been taken, to the district court, the land-owner on the trial is entitled to, open and close.</p> <p>2. Instructions asked and refused or objected to must be specifically pointed out in some way in the motion for a new trial.</p> <p>3. Damages for Right of Way: jury viewing premises* Where, in a trial to recover damages for right of way across a. tract of land, the jury were permitted by the court to view the. premises, the verdict will not be set aside unless it is clear that, the jury erred.</p>

<p>Original application for habeas corpus.</p>

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

<p>ÍPrial: misconduct of party. When a jury was sent in charge of a bailiff of the district court, with the sheriff and county surveyor, a distance of eight miles to view and examine real estate alleged to be damaged by the overflow of water, and while examining the land, it being noon, the bailiff, by order of the sheriff, procured and caused dinner to be served at the house of defendant in error, without his solicitation or the solicitation of the jury—there being no other convenient place to procure it— the dinner being obtained by the bailiff, to be paid for by him, and where, in such case, it was affirmatively shown that defendant in error had no conversation with the jury upon the subject of the case on trial, it was JReld, That no misconduct on the part of the defendant in error or of the jury was shown which would require a new trial.</p>

<p>1. New Trial after Judgment: petition: allegations. In a petition for a new trial under section 318'of the civil code, on the ground of the misconduct of the jury and the successful party, where the petition is not filed for more than ten months after the return of the verdict and four months after judgment was rendered on the verdict, it is not sufficient to allege that the plaintiff “could not with reasonable diligence have discovered or ascertained the misconduct” sooner. The petition should state the facts showing what efforts have been made to discover the misconduct, or failing to do so, facts should be stated which would excuse the making of such efforts.</p> <p>2. Occupying Claimants. Whether in case of the assessment of the value of improvements under section five of the act of 1883, entitled “ An act for the relief of occupying claimants,” etc., the remedy is exclusive and the failure to object to the verdict of the appraisers within the time fixed by said section is a waiver of the right, qutere.</p>

<p>Occupying Claimants: assessment op damages: In an action against D., an occupant, for the possession of real estate, judgment was in favor of the plaintiff. D. removed the cause to the supreme court for review hy proceedings in error, where the judgment of the district court was affirmed. After the filing of the mandate from the supreme court, in the office of the clerk of the district court, and at the first term thereafter, the defendant filed a request for a jury to assess the value of lasting improvements made upon the land. Held, That the request was made within time—and not too late—and that the district court did not err in ordering the jury to he impaneled.</p>

<p>Railroads: appeal prom assessment op damages por right op WAY: trial IN district court. Where an appeal is taken from the appraisement of damages to real estate caused by the construction of a railroad, the owner of the land becomes the plaintiff in the district court to the extent that it becomes necessary for him to prove his damage in case the railroad company, appellant, fails to appear for trial. In such case, when the railroad company is appellant, it is error to dismiss the appeal for the reason that the appellant company is in default for want of an answer.</p>

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

<p>1. Practice in Supreme Court. The main question is one of fact and conflicting testimony, and presents no question of law.</p> <p>2'. Parent and Child. A father possessing a farm and a herd of cattle let the same to his son to farm, the product of both to be divided between them on the terms of two-thirds to the former and one-third to the latter; there being a certain cow in the herd which the father had given to the son before he became of age, and which had been kept and raised in.coxnmon with other cattle on the farm, and was placed and kept as a part of the herd and so treated by the parties, Held, That so far as the rights of third persons were concerned the produce of said cow formed an indistinguishable part of such stock.</p> <p>3. -: -. By a gift from a father to an infant daughter of a calflto raise and have as her own, without intention on his part that it will be taken off of his farm for many years, if ever, he does not part with his dominibn over it, so as to prevent his recapturing it in his own name and right from the hands of a wrong-doer.</p>

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

<p>1. Contract for Sale of Beal Estate Construed. A contract for the sale of real estate contained a provision that the consideration should “be paid in carpentering at $2.50 per day,” the purchaser to have five days’ notice when his services were required, “and to complete payment within twelve months if work is called for,” and “to be allowed twenty per cent discount on any part of lirice of lots paid in cash.” Held, 1, That the purchaser had the entire twelve months in which to make payment, and that it was optional with him to make payment either in labor or money. 2, That the vendor without the assent of the purchaser could impose no new conditions on the purchaser, and forfeit his rights under the contract before the expiration of the year.</p> <p>2. Specific Performance. Where a contract in relation to real estate has been deliberately entered into by competent parties, and is not open to objections of fraud, undue means, etc., in obtaining it, a court of equity will carry out the intention of the parties by specifically enforcing its obligations.</p> <p>S.-: estoppel. An action to enforce specific performance of a contract for certain lots was pending several years, and during this time certain parties erected a wooden building on one of the lots, which was not a fixture. This building the plaintiff after-wards rented for a short time but claimed to be the owner of the lot. Held, That he was not thereby estopped from enforcing his contract.</p>

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

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

<p>1. Practice in Supreme Court on Appeal. In cases tried to a court -without the intervention of a jury the finding on questions of fact upon conflicting testimony is entitled to the same respect in the supreme court on appeal as wonld be accorded to to the verdict of a jury under like circumstances, and will not be interfered with unless clearly wrong. Bank of Cass Co. v. Morrison, ante p. 341.</p> <p>2. Interest. Where a promissory note, by its terms, fixes a legal rate of interest per annum “from date until paid,” such note will draw interest at the agreed rate after as well as before maturity. And the judgment or decree rendered thereon will draw the same rate of interest notwithstanding the legal rate upon judgments and decrees may be reduced after the execution of the note.</p> <p>3. Mortgage on Beal Estate Assumed by Purchaser. When, in the purchase of real estate, the purchaser assumes and agrees to pay a debt secured by a mortgage upon the real estate so purchased, and retains a part of the purchase price for that purpose, in a proceeding against the mortgagor and such purchaser to foreclose the mortgage, the question as to whether the mortgagor had a mortgageable interest in the real estate is an immaterial one and would not affect the liability of the defendants for the payment of the debt.</p>

<p>1. Judicial Sale. Real estate appraised and advertised under an order of sale before the return day of the writ may be sold after the return day.</p> <p>2. -: confirmation. A sale of real estate under an order of sale, where the notice is not published at least thirty days before the sale, will be set aside on motion; but if the sale is confirmed without objection, in the absence of fraud the purchaser will acquire a good title.</p>

<p>Sale: purchaser: liability of fraudulent grantee. A fraudulent grantee who obtains property of am insolvent debtor, with notice that the purpose of the debtor is to hinder and defraud his creditors, cannot be protected as against such creditors, and if he sell the property to a Iona fide purchaser he is liable to the creditors for the value bf the property, less any valid liens existing against it when the alleged purchase was made.</p>

<p>Original action in nature of quo warranto.</p>

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

<p>Appeal from Kearney county. Heard below before CrASLIN, J.</p>

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

<p>County Judge : disqualification. Tie disqualification from acting on tlie part of a probate or county judge mentioned in sections 3 and 35 of chapter 20, Comp. Stat., does not extend to such official acts of said judges as are merely ministerial, such as filing papers and issuing process.</p>

<p>1. Adultery: indictment. An indictment under Sec. 208 of the criminal code, against a husband for deserting his wife and living and cohabiting with another woman in a state of adultery , must allege the offense substantially as in the statute.</p> <p>2. -: WIFE COMPETENT WITNESS. Under a statute permitting a husband or wife to testify in a criminal proceeding for a • crime committed by one against another, Held, That on the trial of a husband on an indictment for adultery, the wife was a competent witness against him.</p> <p>3. Marriage, How Proved. Marriage maybe proved by an eyewitness, and if followed by cohabitation its validity will he presumed.</p>

<p>Exemption: homestead. A person possessed of a homestead on which he resides, although his title may be a contract of sale and the property encumbered for nearly its entire value, is not entitled to $500 in addition in lien of a homestead, nor can he pledge his homestead as security for a debt, and while possessed of the homestead claim $500 in lien thereof</p>

<p>1. Homestead. The homestead law in force when a debt is contracted governs as to the rights of the creditor and debtor in that case.</p> <p>3. -: stipulation construed. Where in a stipulation of facts it was agreed that the debt “accrued in the summer of 1877,” a homestead law having taken effect on the 1st day of June of .that year, Meld, That as the word “summer” is frequently used to indicate the warmest season of the year, it will not be presumed that the debt accrued after the 1st day of June,</p>

<p>Appeal from Washington county. Heard below before Wakeley, J.</p>

<p>Municipal Corporation: damages by filling in street. A city is liable under the constitution of this state to a lot owner for such damages as he may sustain by filling in the street in front of his lot above the level of the same, when the buildings were erected on the lot before the grade was established.</p>

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

<p>Specific Performance: trusts. In 1865 and 1867 the Homestead Society of Dubuque, Iowa, purchased a tract of land adjoining the city of Omaha, and divided the same into lots known as Hartman’s addition to Omaha, the title being in J. G. Hartman, as trustee for the members of the society. One B. rendered valuable services as secretary for said society, and in 1867 or 1868 was given lot 32 in said addition as compensation therefor. He took possession of said lot in 1868 and enclosed the same, and retained possession till his death. In 1869 B. died, leaving-a will in which he devised said lot to his widow. The will was. duly admitted to probate, and afterwards the widow sold and conveyed all her right, title, and interest in said lot to one S., who brought an action against the trustee and his son, who had notice of the transaction before purchasing, to obtain a deed for said lot. Held, That S. was entitled to a specific execution of" the contract.</p>

<p>1. Jurisdiction. To give the court jurisdiction in an action against a defendant who resides in and was served with summons in another county than that in which the suit is brought, the defendant who resides in or is served with summons in the county where the action is brought must have a real and substantial interest in the subject of the action adverse to the plaintiff; hence if a surety is discharged by the creditor extending the time of payment without his consent, he is not a necessary or-proper defendant.</p> <p>2. -: RESIDENCE: APPEAL: APPEARANCE. A defendant who. resides in a different county from that in which the action is. brought, and denies the jurisdiction of the court over his person, should have the ruling of the court on his objections thereto, reviewed on error and not by appeal. By appealing he enters, a general'appearance. Pearson v. Kas. Manfg. Go., 14Neb., 211,</p>

<p>1. Mandamus: intervention by citizens. An alternative writ of mandamus was issued, to compel the county clerk and board of canvassers of G. county to re-assemble and canvass the-votes of said county for county seat. The board at once proceeded to canvass the votes as commanded in the writ, and made due return thereof. On the return day certain citizens of that county asked leave to intervene, upon the grounds of collusion and fraud between the relator and defendants. Leave-was granted.</p> <p>2. -: CANCELING WRIT AFTER ISSUANCE. The court, during-the term at which it is issued, may, for sufficient cause, cancel an alternative writ of mandamus and all proceedings thereunder, where it is made to appear that the writ should not have been, issued.</p>

<p>1. Civil Damages: pleading. In an action by the personal representatives of a deceased person to recover damages for his death, it must be alleged in the petition that the' deceased left a widow or next of kin, or both, according to the fact.</p> <p>2. Pleadings: amendment. An objection made for the first time on the trial of a case that the petition does not state facts sufficient to constitute a cause of action is not to be encouraged, and if the defect complained of can be cured by amendment, the court should permit an amendment to be made instanter and let the trial proceed. The want of a material averment, however, where objection is made, is not cured by the verdict.</p> <p>3. -: revocation of authority to sue. Where an administratrix had authority when the action was commenced to bring an action to recover damages for the death of the intestate, a subsequent revocation of the authority must be specially pleaded, and is not put in issue by a denial of her authority “ to sue or recover in and maintain this action.”</p> <p>4. Administration: new administrator: revivor of action. Where, from any cause, the powers of an administrator cease, an action commenced by him will not therefore lapse; but upon the appointment of a new administrator the prosecution of the action will proceed.</p>

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

<p>Principal and Agent. A principal is bound by the acts of his agent to the extent of the apparent authority conferred on him.</p>

<p>1. Practice: order of introducing testimony. Upon a trial the testimony should be introduced in the order in which the issues are presented by the pleadings. Where the plaintiff, at the beginning of the trial, and before the defendant had produced any evidence, introduced testimony to sustain the allegations of his reply, and which should have been introduced only for the purpose of rebutting testimony offered to sustain the allegations of defendant’s answer, it was Held, Not to be error for the trial court, upon motion, to order the testimony stricken out.</p> <p>2. Bill of Exceptions: testimony. WTien testimony is offered and excluded, the bill of exceptions must set forth the testimony thus offered and rejected. McMillan v. Malloy, 10 Neb., 228.</p> <p>3. Evidence, Held, Not sufficient to show that a settlement and payment of money was obtained by duress.</p>

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

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

<p>1. Office: vacancy. Where it appears prima fade that acts or-events have occurred subjecting an office to a judicial declaration of being vacant, the authority having the power to fill such vacancy, supposing the office to be vacant, may proceed, before procuring a judicial declaration of the vacancy,- to appoint or-elect according to the form of law a person to fill it. Leal v. Jones, 19 Ind., 356.</p> <p>: COUNTY JUDGE: TEMPORARY APPOINTEE. A vacancy 2. may exist in the office of county judge, although the duties of such office are being discharged by a person temporarily appointed by the proper authority.</p> <p>3. -: -: case stated. Upon the pleadings and evidence in the case, Held, That at the date of the filing of the information herein, the respondent, John E. Hart, was not entitled to the office of county judge of Franklin county, but did unlawfully intrude himself thereinto and did unlawfully hold and exercise the duties, franchises, and jurisdiction thereof.</p>

<p>1. Pleading: stating cause of action. In a petition for goods, wares, and merchandise sold and delivered, the items, in stating the account in the following words: “ To insurance, $6, ” “To balance on oats, check, $6.30,” without explanation, Seldt Not sufficient to constitute a cause of action.</p> <p>2. Verdict. Upon the whole ease, Held, That the verdict of the jury is not sufficiently unjust or unsupported by the evidence to. justify a reversal of the judgment.</p>

<p>State University; power of regents over funds. The regents of the university, in the absence of an appropriation by the legislature, have no power to dispose of the endowment fund or that derived from the § mill tax. Regents v. McConnell, 5 Neb., 423, State v. LiedtJce, 9 Neb., 468, adhered to.</p>

<p>1. Constitutional Law: special legislation: organization oe counties. A special act of the legislature, which provides, that certain territory, the boundaries of which are given, shall be designated Harlan county, appoints certain persons commissioners, and requires them within thirty days to call an election for the purpose of electing county officers and selecting a. site for a county seat, is not in conflict with the constitution, which inhibits the conferring of corporate powers by special act.</p> <p>2. Registration of Voters. The registration law is to be used as a shield and not as a sword; as a means to prevent illegal' voting, and not to disfranchise the voters of a county or its subdivisions; therefore, where a statute limits the time for holding an election to a less number of days than is required for the registration of voters, and no registration is had, the votes cast at such election will not on that account be illegal.</p> <p>3. County Seat: location: irregularities in election. At am election held in Harlan county on the 3d day of July, 1871, in pursuance of the statue, the place which received a majority of all the votes cast thereby -became the county seat of that county; and the court will not in collateral proceeding, fourteen years afterwards, inquire into irregularities at such election where no direct proceedings have heen had to set it aside, and the place thus designated has been in fact the county seat since the year 1876.</p>

<p>1. Mortgage: lien. A mortgage of real estate merely creates a lien thereon as security for the debt, and is not a conveyance as at common law.</p> <p>2. Homestead. The homestead law in force when a contract was entered into is the law applicable to such contract.</p> <p>-3. -: sale under Aox of 1867. Under the homestead law of 1867 the homestead of a debtor is not liable to sale upon attachment or execution so long as it is owned and occupied by the debtor. A judgment rendered in a court of record in the county where the homestead is situated will be a lien upon such homestead, which will become operative upon the sale or abandonment of the homestead by the debtor.</p> <p>A. -: -: confirmation of SALE. The ex parte confirmation of the sale upon execution of a part of the homestead is not such an adjudication as will deprive a party who actually owns and occupies the same of his right of homestead.</p> <p>■8. --—:--: case stated. On the facts presented by the record, Held, That there had been no sale and abandonment of the homestead, and sheriff’s deeds for portions of the same were annulled, the sales set aside, and the lien of the judgments re-instated.</p>

<p>Rehearing of foregoing case.</p>

<p>Mechanics’ Lien: materials furnished contractor. Under the mechanics’ lien law the lien of a material man for materials furnished for the erection of a building under an agreement with the contractor extends only to such materials as were used in or delivered at the building for use therein.</p>

<p>Appeal from Douglas county. Tried below before Wakeley, J.</p>

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

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

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

Original application for mandamus. I. Railroad corporations have their existence in this and other states only by virtue of an act of the legislature. These corporations are not created for the personal aggrandizement of the corporators, it is only upon the theory that their works will be of benefit to the people at large that their chartered rights are given them.

<p>1. Covenant: evidence: possession of grantor. In an action upon the covenants of a warranty deed for a breach of warranty, proof that the real estate conveyed was a farm recently (before the execution of the deed) purchased from the owner in possession, and soon afterwards sold and conveyed to another person, there being no adverse claimant or assertion of any adverse title by any one, the absolute right, title, and possession being conceded to be in the grantors to the last conveyance, Seld, To be sufficient proof of possession by the grantor, prima fade, to justify the trial court in finding that at the time of the execution of the conveyance the grantors were in possession of the land, and tho covenants of warranty contained in the deed run with the land.</p> <p>-: SUBSEQUENT DEED TO CORRECT OMISSION IN FIRST. Where, on the 24th day of June, 1879, upon the sale of real estate, the conveyance was by deed denominated ‘ ‘ warranty deed ” upon its face, but which deed was of a form in common use in some of the states as a warranty deed, but not of the form used in this state; and where, on the 14th day of February, 1880, the grantor executed and delivered to the grantee a deed of conveyance of the form and kind in common use in this state, containing full covenants of warranty, it was Held, That such facts Were sufficient to justify the trial court in an action commenced on the 8th day of December, 1883, in finding that the second deed was executed for the purpose of correcting the apparent omission in the first one, and that the covenants of warranty of title run with the land and would convey to the grantee the right of the grantor to the covenants of his grantor.</p> <p>3. Trial: action against two defendants: motion foe NEW TRIAL. Where in an action against two defendants charging them with the making and the breach of a joint warranty in the sale and conveyance of real estate, the evidence is sufficient as to one, but insufficient as to the other defendant, the verdict and judgment being against both, and the one against whom the evidence was insufficient made no motion for new trial as to himself alone, the judgment will not be disturbed.</p> <p>•4. Married Women: bound by covenants in deed. Under the provisions of the act of the legislature of 1871, commonly known as “the married woman's act,” Compiled Statutes, Ch, 53, a married woman is liable upon her covenants of warranty in the sale of real estate which is her separate property, whether she be joined by her husband in such conveyance or not; section 48 of Ch. 73, Compiled Statutes, having been passed in 1866, being by said act abrogated to that extent.</p> <p>5. Covenants: evidence oe eviction. Where in an action upon the covenants of warranty of title contained in a deed or conveyance of real estate it is shown that a decree in equity haa been entered against the grantee and plaintiff, setting aside his title and declaring that he held as trustee for the plaintiff in that action, and requiring a conveyance to such plaintiff; and where after such decree the plaintiff in the action conveys the land ta a third party, who, in an action of ejectment, recovers judgment against the present plaintiff for the possession of the property,. Eeld, Sufficient proof of eviction.</p>

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

<p>Forcible Entry and. Detention. In an action of forcible entry and detention, where the testimony shows that the defendant is in possession under a contract for title, the action should he dismissed. Pettit v. Blade, 13 Neh., 154. Streeter v. Bolph, 13 Id., 390. C. B. & Q. B. B. v. Sleupa, 16 Id., 341.</p>

<p>1. Contract for Sale of Beal Estate. Instrument construed, and Held, To be a contract of sale and not a lease.</p> <p>2. -: SIGNED by YENDOE alone. An agreement for the sale j of real estate signed by the vendor alone is valid.</p> <p>3. -: DEFAULT of PURCHASER: FORFEITURE'. In 1880 certain real estate was sold on time, twenty negotiable notes payable at a particular hank being given hy the purchaser, all to he paid within ten years from date. Time was declared in the contract to he an essential element, and on the failure of the purchaser to perform a forfeiture should ensue. In November, 1882, the purchaser did not pay the taxes until five days after the land-had been sold to the defendant for taxes, when the purchaser redeemed the same. The notes due iu 1883 werenot sent to the hank named for collection, and three days after they were due the purchaser paid the amount thereof to the hank. In June, 1884, the vendor returned the unpaid notes to the purchaser and declared the contract forfeited. Held, That the alleged forfeiture dated from that time, and the purchaser not then being in default it was unavailing.</p> <p>4. Payment: place of payment. When a hank is designated as the place at which a purchase money note is to he paid, the maker is not in default in not paying the same until the note is received at the hank.</p>

Motion to dismiss proceedings in error to tbe district court of Richardson county, where the cause was tried before Davidson, J.

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

<p>1. School Lands: lease: forfeiture: notice. Where a lessee of school lands is in default in the payment of rent for the period of six months it is the duty of the commissioner of public lands and buildings to cause notice to be given to him that if the amount due is not paid in six months thereafter the lease will be declared forfeited. After the expiration of six months from the time such notice was given, the board of public lands and buildings may declare such contract forfeited.</p> <p>2. -: jurisdiction of district court. Such order may be reviewed on error in the district court.</p> <p>3. Mandamus Against Board of Public Lands and Buildings. Where a mandamus is sought to compel the board of public lands and buildings to accept the highest bid for the leasing of certain school lands, the writ will be denied unless it is clear that there is an abuse of discretion, and that the sum bid is the full rental value of the lands.</p>

Tried below before Broady, J., upon the following stipulation at facts: It is stipulated in this case that the facts are as follows r The plaintiff owned the animal that was killed. He lived close to the defendant’s railroad track, on the north' side of track. There was a strip of grass land along and near the railroad track, and back from the track on the north; the land was cultivated south of the railroad track, and a few rods away was the Nemaha river.

<p>1. County Court: trial of causes. The provision of the statute requiring the county court to continue all cases undisposed of on the third Monday of each month does not prevent the court from hearing and deciding cases by agreement at any timo during the month.</p> <p>2. Costs. Where costs taxed in a cause appear to be exorbitant or excessive, the proper remedy is by a motion to retax, made to the court where the alleged mistakes are made.</p> <p>3. County Court: attachment: order for sale or attached property. Where the county court issued an order oí sale for the sale of attached property, after judgment, and it is alleged that the court erred in doing so, the judgment containing no order appropriating the attached property to its payment, the proper practice would be to move the county court for a return and vacation of the order of sale. If such motion should be overruled the decision thereon might be reviewed. But the issuance of such order of sale, even if erroneous, would be no reason why the judgment should be reversed.</p>

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

<p>Motion to correct judgments in preceding two cases.</p>