Volume 18 — Nebraska Reports

<p>1. Creditor’s Bill: petition. 'Where after judgment and. before the issuance of execution thereon, the defendant removed to another county, and the plaintiffs issued an execution to the original county, -which was returned wholly unsatisfied for want of goods or lands, upon a creditor’s bill being brought to subject a certain other judgment to the payment of said first named judg-. ment, on the ground that said last named judgment was held in secret trust for the debtor in said first named judgment, and said bill contained an averment “that the said defendant, William H. Thompson, has no property whatever subject to sale on execution,” Held, Sufficient.</p> <p>2. -: defense: estoppel. W. H. T., a merchant, being indebted to S.,sold Ms entire stock to L., taking time notes in payment, and afterwards, upon a colorable sale thereof, transferred said notes to B. S. brought suit against W. II. T., and attached the goods in the bands of L., claiming that the sale from W. H. T. to L. was fraudulent and void. L. replevied tlie goods. Afterwards, S. abandoned Ms attachment, and by stipulation released all claim for a return of the goods. B., having sued L. on the notes and obtained judgment, S. brought a creditor’s suit against B. and others to have the judgment of B. against L. applied to the payment of his judgment. Eeld, That B. is estopped to set up and claim as a defense to such suit that S. obtained satisfaction of his debt by means of his attachment of the said goods.</p> <p>3. -: attorneys’lief. S. and P,, the attorneys who obtained the judgment for B. against L., having been made defendants in said creditor’s suit for the purpose of cutting off their lien on said judgment for their fees, Eeld, That no question of notice of such attorneys’ claim of lien could arise in said case, and that if such question could arise, that actual notice is sufficient under the statute.</p>

<p>1. Liquors: damages by sale op: action by pauper. A poor person dependent for support upon a relative, according to the provisions of chapter 67, Comp. Stat., may, in his own name and for his own benefit, maintain an action against a vendor of intoxicating drinks for the loss of such support, caused by the death of such relative, when such death occurs in consequence of the traffic of such vendor in intoxicating drinks, without any action of the county commissioners in that behalf.</p> <p>A Challenge to Jurors. When such action is brought against two or more defendants they are entitled to no more peremptory challenges of jurors than where the action is against a single defendant.</p> <p>3. Instructions. Certain instructions prayed by defendants and •refused by the court examined, and Held, Properly refused.</p>

<p>1. Infant. Contracts of an infant, other than for necessaries, are-voidable only, and upon coming of age ho may affirm or avoid in his discretion.</p> <p>2 ---. If an infant purchase personal property and give his promissory note therefor, he can not, upon arriving at the age of twenty-one years, retain the property and plead infancy as a, defense to the note.</p>

<p>1. Murder: verdict oe lower degree on second trial. Where on a trial for murder the defendant is found guilty of a lower degree of homicide than the highest degree charged in the indictment, and on his motion a new trial is granted, the effect of granting a new trial is to set aside the whole verdict and leave the case for retrial upon the same issues as upon the first trial.</p> <p>2. Jurors: competency. If upon examination of a juror it is shown that he has an opinion founded upon newspaper reports, and it shall satisfactorily appear that the character of such opinion is such that it will not interfere with his rendering an impartial verdict, it is not error to admit him to the jury.</p> <p>3. Attorney: argument objected to, exceptions must be taken. When it is alleged that an attorney, in the argument of a cause on trial to a jury, went outside of the record and appealed to the passions and prejudices of the jury, the attention of the court should he called to the language and conduct of the attorney hy the proper objection and a ruling had thereon by the court. If the objection is overruled and an exception taken to the ruling, the question may he reviewed in the supreme court upon the decision of the trial conrt. Without such ruling and exception there is nothing for the reviewing court to consider. ,</p>

<p>Error to the district court for Cass county. Tried! below before Pound, J.</p> <p>Sections-466-472, and 473, Civil Code. Seymour v. Street, 5 Neb.,. 85. Freeman Judgments, § 442. Soroggs v. Tutt, 23 Kan., 181. Angelí v. Martin, 24 Id., 334. Baker v.. Hammer, 31 Id., 325. Gillette v. Morrison, 7 Neb., 263. Carter v. Jennings, 24 Ohio State, 188. Civil Code, § 1047. Freeman Executions, 29, 30.</p> <p>Wright v. Sweet, 10 Neb., 190. 2 Nash PI. & Pr., § 417. Tyler v. Winslow, 15 Ohio State, 364.</p>

<p>1. Railroad: exercise or power op eminent domain: damages. While the statute authorizes a railroad corporation to go upon the land of an individual, if need he, and locate its line of road over such land, and permits either the corporation or the land-owner to institute proceedings to condemn the right of way, yet, before the corporation can appropriate such right of way by entering upon the land and constructing its road across the same, the damages must have been appraised and the amount thereof paid to the land-owner or deposited with the county judge. O. & N. W-R.R- v.Mmh, 4 Neb., 21. Ray v. A. <& N. R.R., 439. If the damages are not awarded and deposited the corporation is liable in trespass.</p> <p>2. -:--: how par statute exclusive. The statutory mode of acquiring the right of way and ascertaining the damages therefor is exclusive as to the manner of assessing the value of the land taken with damages to the residue of the tract, hut does not include damages to the possession caused by the wrongful entry upon the land before condemnation.</p> <p>3. --:--: MEASURE OP DAMAGES. The measure of damages in such case does not, before the award of the commissioners, include the value of tbe land taken.</p>

<p>Error to the district- court for Gage county. Tried below before Broady, J.</p> <p>B. & O. R. R. v. Sulphur Springs, 2 Am. & Ena:. R- R. Cases, 166. Billinger v. N. Y. B. Ii. Co., 23 N. Y., 51. B. B. Co. v. Steven, 73 Ind., 278. Brahe v. B. B., 17 Am. & Eng. R. R. Cases, 59. Chase v. N. Y. B. B. Co., 24 Barb., 273.</p> <p>Gordon v. Buchanan, 5 Yerg., 72. Friend v. Wood, 6 Gratt., 184. Michaels v. B. B., 30 N. Y., 571. McArther v. Sears, 21. Wend., 190. Cooley Torts, 640. McMahon v. Bavidson, 12 Minn., 357. C., B. L & P. B. B. v. Moffit, 75 111., 524. Clarh v. Lebanon, 63 Me., 393. Simpson v. Kimbertin, 12 Kan., 355.</p>

<p>1. Trial: thebe trials: verdict sustained. When, a case has been tried three times, the verdict of the jury each time being in favor of the plaintiff, the court will not set aside the third verdict as being against the weight of evidence, unless it is clearly wrong.</p> <p>2. Instructions given set out in the opinion, Held, Not erroneous.</p>

<p>1. Dower: court may assign. When a -widow is entitled to dower in the lands of which her husband died seized, and her right to dower is not disputed by the heirs or devisees, or any person claiming under them or either of them, it maybe assigned to her in whatever county the lands may lie, by the county court of the county in which the estate of the husband is settled, upon the application of the widow.</p> <p>2.--:--: PRACTICE. In order to oust the county court of such jurisdiction the right of the applicant to such dower must be disputed by presenting an issue of fact, which, if established by proof, would defeat her claim of dower, and such issue must be one which the county court by its organization is unable to try.</p> <p>3. Homestead: county court may assign. A county court has jurisdiction to set aside a homestead to a widow by virtue of its general jurisdiction in matters of probate and the settlement of estates.</p> <p>Note. — County court has exclusive jurisdiction in probating wills. Loosemore v. Smith, 12 Neb., 343. Pettit v. Blach, 13 Id., 152. Homestead rights of wife. McMahon v.Speilmam, 15 Neb., 654. Dideman v. Birlchaicser, 16 Id., 686. Stout v. Rapp, 17 Id., 462. McHugh v. Smiley, Id., 626. — Rep.</p>

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

<p>1. Petition in. Action on Hote. In an action upon a promissory-note when a copy of the note sued upon is set out as a part of the petition, it must he-alleged that there is due thereon from the adverse party to the plaintiff a specific sum, unless these facts - may he inferred from others pleaded. Gage v. Roberts, 12 Neh., 276.</p> <p>2. Pleading not Amendable in Supreme Court on Original Motion. When on a hearing on error in the district court leave is asked to amend a pleading to correspond with an order of the county court and such leave is refused, this court in the exercise of its appellate jurisdiction cannot grant leave for such amendment when asked by an original motion filed in this court.</p> <p>Note.- — In Humphries v. Spofford, 14 Neb., 488, on appeal leave was given plaintiff to amend petition in the district court so as to correct a mistake, on payment of costs, the cause being remanded to the district court for that purpose. — Rep.</p>

<p>1. Trial: conclusion from undisputed facts a question for jury. Where the existence of a state of facts is undisputed, and where upon such facts different minds may honestly draw different conclusions from them as whether or not such facts establish negligence or the absence thereof, the question as to the conclusion to he arrived at is a proper question for the trial jury, and not for the court.</p> <p>2. Instructions to Jury. Where an instruction to a jury states a proposition clearly and distinctly, and without limitation or qualification, it is not error for the court to refuse to re-instruct the jury upon the same proposition, hut with the addition of a clause limiting the force of the instruction when such limitation would he against the interest of the party asking the instruction. Or, if error, it would he error without prejudice.</p> <p>3. -. When an instruction is once given it is sufficient, and it is not error for the court to refuse to repeat it to the jury.</p> <p>4. -. It is not error for the trial court to refuse to instruct a jury upon questions not involved in the case on trial. Instructions should he confined to the issues in the case.</p>

<p>Appeal from the district court of Gage county. Tried below before Broady, J.</p> <p>Decree should be set aside. Freeman on Judgments, § 492. 3 Pomeroy Eq-Jur., §§ 1365, 1371, note 2. Erie li. R. v. Ramsey, 45 N. Y., 637. Holland v. Frailer, 22 Gratt., 136. Pearce »- Olney, 20 Conn., 544. Moore v. Barclay, 16 Ala., 158. Adams v. Adams, 51 New Hamp., 388, and cases cited. Plaintiffs should have decree ordering sheriff to execute deed to Armstrong or his assignee, Buchanan. 2 Jones Mort., § 1652. Rorer'Jud. Sales, §§ 438, 950-954. Huxley v. Rice, 40 Mich., 73. Deed was not disaffirmed. Bool v. Mix, 17 "Wend., 119. Irvine v. Irvine, 9 Wall., 617-Goodnow v. Lumber County, 31 Minn., 168. Keil v. Healey, 84 111., 104. Bingham v. Basley, 55 Tex., 281. Jones v. Jones, 46 Iowa, 473. 2 Kent Com., 237. Bigelow v. Kinney, 3 Vt., 353. Terry v. McClmtock,41 Mich.-, 492.</p> <p>Colby v. Brown, 10' Neb., 414. 2 Kent Com., 238, note a. Tyler on Infancy, §,- 31. Bay lis v.- Finely, 3 Maulé & Selw., 482. Curtan v. Patton, 11 Sergt. & Rawle, 311. Tucker v. Mor eland, 10-Peters, 58. Jackson v. Carpenter, 11 Johns., 539. Chapin v. Shafer, 49 N. Y., 407. Vaughan v. Parr, 20 Ark'., 600. Prout v. Wiley, 28 Mich., 164. Jones Mortgages, 1371-3. Phillips v. Reeder, 18 N. J. Eq., 95. Hogendobler v. Lyon, 12 Kan., 276. Halstead v. Shepard, 23-Ala., 558. Bigelow v. Topliff, 25 Vt,, 273. Lansing v. Montgomery, 2 Johns., 382. Bigelow Estoppel, 593-4, 541, 601. 2 Smith’s Leading Cases, 662.</p>

<p>Officers: must perform work for compensation allowed by statute. A public officer must discharge all tbe duties pertaining to Ms office for. the compensation allowed by law, and will not he allowed compensation for extra work unless it is authorized by statute.</p>

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

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

<p>1. Judicial Sale: notice oe sale. The provisions of the code which require public, notice of the time and place of the sale of real estate upon execution to be given “for at least thirty days before the day of sale, by advertisement in some newspaper,” etc., are not satisfied by one publication of the notice at least thirty days before the day of sale.</p> <p>2. -: -. The word “for,” as used in the section above quoted, means “during,” and the notice must be published for or during thirty days before the day of sale. Whitaker v. Baker, 12 Has., 493, approved.</p> <p>3. Statutes: repeal by implication. A statute will not be considered repealed by implication unless the repugnancy between the new provision and the former statute is plain and unavoidable.</p>

<p>County Bonds: limitation on issue. Under the provisions, of the act of 1873, as amended in 1883, authorizing counties to issue bonds “to pay the outstanding unpaid bonds,warrants, and indebtedness of a county,” such bonds, with those previously issued and unpaid, cannot exceed ten per cent of the assessed valuation of the county.</p>

<p>1. Administration of Estate: removal of administrator: resignation of trust. Where an administrator is about to-remove from the state he may resign his trust, and an order of the proper tribunal discharging bim'cannot be attacked in a collateral proceeding. Cobb, Oh. J. dissents.</p> <p>2. -: power of administrator de bonis non. An administrator de bonis non has the same powers in administering the-estate as the first administrator, and will take np the business-, of settling the estate at the point where his predecessor ceased-to act; therefore where the first administrator had filed a petition in the proper court for the sale of real property of the decedent for the payment of debts due from the estate, a license to sell may be issued to the administrator de bonis non upon the petition previously filed. In such case the administration is continued by the same official — the administrator, although a different person.</p> <p>3.--: • JURISDICTION: PETITION TO SELL REAL ESTATE NOT’ SUBJECT TO ATTACK IN COLLATERAL PROCEEDING. A petition for license to sell real property for the payment of debts of an estate, filed in the court having exclusive original jurisdiction, and which was acted upon by that tribunal and tre&ted as sufficient, is not, in the absence of fraud or collusion, subject to attack in a collateral proceeding. The want of verification of a petition is not an element of jurisdiction.</p> <p>4. -: --: The authority to grant a license to sell real estate carries with it the implied power to determine the necessity for such sale and the sufficiency of the pleadings presented to the court for that purpose.</p> <p>5. -: evidence. Where the record of an administrator’s sale of real estate, or any paper or instrument pertaining to the same is lost, destroyed, or cannot be found, the statute authorizes the party affected to prove the contents as in case of other lost instruments. Evidence, Held, To have been improperly excluded.</p> <p>6. Jurisdiction. Titles to real property acquired under proceedings of courts having jurisdiction cannot be attacked in collateral proceedings.</p>

<p>1.Instructions Upheld. The instruction, of the court to the jury examined, and Held, Free of objection in point of law, and as favorable to the accused as the evidence would justify.</p> <p>2. Confession. When no confession ■ or admission of guilt has, been made by a party on trial for a criminal offense, it is immaterial what inducements may have been held out to him for the purpose of obtaining a confession or admission of guilt.</p> <p>3. Argument of Attorney. Where the language used by the-district attorney or assistant counsel, in opening a case or summing up to a jury, is deemed prejudicial to the accused, “ the attention of the court should be called to it, by proper objection, and a ruling had thereon. If the objection is overruled and an exception taken, the question may be reviewed in tbe supreme court upon the language, objection, ruling, and exception being made a part of the record by a proper bill of exceptions, but not otherwise.” Bradshaw v. State, 17 Neb., 147.</p> <p>4.--. Held, Not error on fhe part of the court to allow counsel for the state, in summing up to the jury, to comment upon the presumption of guilt arising from the possession, by the accused, of recently stolen goods, without explanation of such possession, even where counsel fail to state the law with technical accuracy.</p> <p>5. Evidence Sufficient. The evidence in the case, Held, Sufficient to sustain the verdict.</p>

<p>Error to the district court for Gage county. Tried below before Broady, J.</p> <p>Wray v. Gilman, 1 Miles, 75. Culbertson v. Cabeen, 29 Tex., 247. Maxwell's Justice, 1883 Ed., 185/ Maxwell's PI. & Pr., 3d Ed., 499-500. Stacy v. Stichton, 9 Iowa, 399. Kigel v. Schrenldenin, 37 Mich., 174. Drake Attachment, § 104. Wray v. Gilmore, 1 Miles, Pa., 75. Barnard v. Sibre, A. K. Mar., 580. Willis v. Lyman, 22 Tex., 268. On debt not due, cited : Cross v. McMacldn, 17 Mich., 511. Drake, § 107. On foreign judgment, cited : Davenport v. Barnett, 51 Ind., 329. Story Confl. Laws, 8th Ed., 821. Mason v. Butchell, 101 U. S., 638. II. 8. v., Denny, 6 Biss., 501. Child v. Powder Works, 45 N. H., 547. McGilvray v. Avery, 30 "Vt., 538. Barnes v. Gibbs, 31 N. J. Law, 320.</p> <p>Ellison vi Tallón, 2 Neb., 15. Tallón v. Ellison, 3 Neb., 73. Hilton v. Boss, 9 Id., 409. Drake, §§ 102, 418. Tessier v. Crowley, 16 Neb., 369. King v. Vance, 46 Ind., 246. Maxwell v.'Stewart, 22 Wa.ll., 77. Waples Attachment, § 3, and cases cited in note 1.</p>

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

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

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

<p>Error to the district court for Lancaster county. Tried below before Mitchell, J.</p> <p>Wells v. Turner, 14 Neb., 445.</p> <p>Civil Code, §§ 951, 952. McCormick v. Thompson, 10 Neb., 491.</p>

<p>1. . Purchaser at Judicial Sale not Affected by Subsequent Opening of Judgment. A purchaser in good faith of lands the title of which was acquired through judicial proceedings upon constructive service, will not be affected by the subsequent opening of the decree under section 82 of the Code.</p> <p>2. -. Where a decree is vacated under section 82 of the Code, and an answer filed by the defendant denying the facts stated in the petition and praying for a dismissal of the action, the subsequent dismissal of the suit by the plaintiff will not affect the title of a purchaser in good faith while the decree was in full force.</p>

<p>1. Chattel Mortgage: description of property. Where the property was described in a chattel mortgage as “ one bay horse eight years old, weight about 1,200,” ánd it was stated in the mortgage that the mortgagor, who was a resident of the county, was “lawfully possessed of said goods and chattels,” ReM, Sufficient to put a purchaser on inquiry.</p> <p>2. -: EXECUTION OF MORTGAGE BEFORE PAYMENT FOR CHATTELS. Where a party purchased horses upon condition that he should pay for them by a certain date, and paid for them at the time agreed upon, but before doing so he executed a chattel mortgage on them, Held, That so far as the mortgagee was concerned the title of the mortgagor related back to the date of purchase.</p> <p>3. Replevin: demand: costs. Where a defendant is rightly in possession of property the plaintiff must demand possession thereof before bringing an action of replevin, otherwise the defendant will not be liable for costs.</p> <p>4. -: answer: general denial insufficient. A mere denial by the defendant in his answer of the facts stated in the petition is not an assertion of ownership of the property; and does not waive a demand where such demand is necessary before bringing suit.</p>

<p>Appeal from Lancaster county. Tried below before-Mitchell, J.</p> <p>Wi/ng v. MeDowell, Walk. Ch., 183. Growning v. Behn, 10 B. Mon., 385. Uhl v. Bau, 13 Neb., 360. Morse v. Godfrey, 3 Story, 389. Gafford v. Stearns, 51 Ala., 443. Powell v. Jeffries, 4 Scam., 391. Zorn v. B. Co., 5 S. C. (Richardson), 97-98. Manhattan Go. v. Eversión, 6 Paige,, 457. Cary v. White, 52 N. Y., 141. Holbrooh v. Tirrelly ■ 9 Pick., 108. Gilbert v. Bulltly, 5 Conn., 264. Fawcetts v. Kimmey, 33 Ala., 264. Kearsing v. Kilian, 18 Cal., 494. Blolmes v. Trout, 7 Peters, 213. Howard v. Huffman, 3 Head., 563. Hall v. McDuff, 24 Me., 3121 Parher v. Kane, 4 Wis., 12.</p> <p>Edminster v. Higgins, 6 Neb., 265. Bhea v. Reynolds, 12 Neb.,. 128. Galway v. Malchow, 7 Id., 285. Chicago v. Witt,. 75 111., 211. Eenno v. Sayre, 3 Ala., 478. Colder v. Chapman, 52 Pa. St., 359. IAghtner v. Mooney, 10 Watts, 407. Jjosey v. Simpson, 3 Stoekt. Ch., 246. Cooh v, Travis, 20 N. Y., 402. St. John v. Conger, 40 III., 535.</p>

<p>1. County not Liable for Taxes Paid by Treasurer to State, School Districts, etc. Where a county treasurer collects and pays over taxes for the state and for school districts and other municipalities less than and within the county, such county is not liable to the tax payer for such taxes, even if illegally levied, and this would he true whether he sought to recover hack such taxes under the provisions of the revenue law or as a general creditor of the county.</p> <p>2. Limitation: statute not applicable to delinquent taxes. The statute of limitations prescribing the time within which a civil action may be brought under the code of civil procedure, has no reference to the time within which delinquent ‘ taxes may be collected by distress, and is not applicable thereto.</p>

<p>1. Malicious Prosecution. In a case of malicious prosecution .the right of action accrues whenever the criminal prosecution is disposed of in such a manner that it can not he revived, and the prosecutor, if he proceeds further, will be put to a new- one. Casebeer v. Drahoble, 13 Neb., 465.</p> <p>2. Jury Judge of Fact. Questions of fact, and upon conflicting testimony, are to be decided by the 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 Marsh Harvester Co. v. Qrun-. drad, 16 Neb., 529.</p> <p>3. Malicious Prosecution: probable cause : proof or malice. A person in the lawful possession of property, either real . or personal, may by force defend against an unlawful invasion of his rights, if such invasion is by force and violence, providing such resistance is necessary to the protection of such rights, and provided such resistance is within proper bounds, and does not become aggressive. And where in such case the person making the unlawful attack causes the person attacked to be arrested for a crime in making such defense, such arrest will be without probable cause, and if caused with the intent and purpose of wrongfully injuring the person arrested, it will be held sufficient, proof of malice.</p> <p>4. False Imprisoument: evidence: malice. In an action of false imprisonment it is incumbent upon the plaintiff to prove by a preponderance of testimony that the criminal prosecution was without probable cause and was malicious. But where, the-want of probable cause, is clearly shown, and all the facts and circumstances of the case are before the jury, they may find from the facts showing a want of probable cause, that the prosecution was malicious.</p> <p>■5. -: probable cause: malice. While ordinarily the question of what constitutes probable cause for a criminal prosecution does not depend necessarily upon whether the offense has, in fact, been committed, nor whether the accused is innocent or guilty, yet where before the commencement of a criminal prosecution the promoters of such prosecution were possessed of full knowledge of all the real facts in the case, and knew that the party charged was not guilty of the alleged offense, proof of the real facts in the case may be made for the purpose of showing a want of probable cause and malice.</p>

<p>Railroads: liability for stock killed : negligence. Under the provisions of section one of the act of 1867, Compiled Statutes 1835, Ch. 72, where a railroad corporation neglects to maintain fences and cattle-guards along its road, and horses get thereon, and are injured or killed by the engines or trains running on the road, the railroad company is liable to the ownef in damages therefor, and the negligence of the owner in allowing the horses to escape from him will constitute no defense to the action.</p>

<p>Constitutional Law: appropriation by legislature. Under tie provision of the constitution of the state, that “no money shall be' drawn from the treasury, except in pursuance of a specific appropriation made by law,” the auditor of public accounts has no authority to draw a warrant upon the treasury for commissions due county treasurers for money collected by them and paid into the treasury, unless a specific appropriation had been made for that purpose.</p>

<p>Chattel Mortgage: replevin by mortgagee. In an action of replevin by a mortgagee of chattels against the sheriff for talcing such chattels on an attachment at the suit of a creditor, and it clearly appearing from the evidence that the sale or assignment of the 'goods as evidenced by the mortgage under which the plaintiff claims was made in good faith, and without any intent to defraud such creditor, or any creditor of the mortgagor, and that such mortgage was duly'recorded, the plaintiff is entitled to recover, although there was not that, immediate delivery followed by an actual and continued change of possession of such chattels as is contemplated by Sec. 11 of Chap. 32, of Comp. Stats.</p>

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

<p>Appeal from Burt county. Tried below before Neville, J.</p>

<p>Justice of Peace: liability fob wrongful issue of attachment. Where an action by attachment is brought before a justice of the peace against a non-resident of the state, and his-property attached and sold, the justice will be liable if the cause of action is not founded on contract, judgment, or decree.</p>

<p>1. Constitutional Law: enrolled bill prima eacie evidence oe the passage oe LAW. The certificate of the presiding officer of a branch of the legislature that a bill has duly passed the house over which he presides is merely prima fade evidence of that fact, and evidence may be received to ascertain whether or not the bill actually passed.</p> <p>2. -: evidence. The journals of the respective houses are records of the proceedings therein, and if it should appear from them that a hill had not actually passed, the presumption in favor of the certificate would he overthrown and the act declared invalid.</p>

<p>1. negligence: contributory necklioence : burden oe prooe. In an action for negligence, where the plaintiff can prove his case without disclosing any negligence on his part, contributory negligence is a matter of defense, the burden of proving it being on the defendant.</p> <p>2. -: EXCAVATION IN STREETS OE CITY. A person traveling in a public street, if he exercise ordinary care, has a right to be absolutely safe against all accidents arising from obstructions or imperfections in the street. And if a person is authorized to make an excavation in the street, he is hound at his peril to-’ protect the same and leave the street in as safe condition as it would be if the excavation had not been made.</p>

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

<p>1. Insurance: contract defined. A contract by which one party for a, consideration promises to make a certain payment of money upon the destruction or injury of something in which the-other party has an interest, is a contract of insurance, whatever may be the terms of payment of the consideration by the assured, or the mode of estimating or securing payment of the sum to be paid by the insurer in the event of loss.</p> <p>2. -: case stated. Upon the facts appearing in the record, Meld, That defendant was a mutual insurance company, and as such must comply with the provisions of the act of June 1st, 1873, and receive the certificate of the auditor of the state before transacting business.</p>

<p>1. Counties and County Officers. Counties and county boards can only exercise such powers as are expressly granted by stat, ute, and such grant of power must be strictly construed.</p> <p>2.--: bonds FOR jail. Under the -provisions of the law of 1879, now in force, county commissioners have no authority to. issue county bonds for the purpose of raising money to build a jail, and a vote of the people of the county instructing them to. issue such bonds will confer no authority so to do.</p>

<p>Error to the district court for Cass county. Tried below before Pound, J.</p> <p>Leabow v. Renshaw, 61 Mo., 292.</p>

<p>1. Sale of Eeal Estate: commission to agent. In an action to recover for the value of services as agent in selling real estate, and there is testimony tending to show that the plaintiff rendered some service, hut did not effect a sale, an instruction that if the jury believe that he rendered some service he is entitled to recover on a giianium mermt is not improper.</p> <p>2. -: -. Where there was evidence tending to show that the plaintiff rendered no services whatever in effecting a sale of real estate, an instruction to the effect that if the jury should so find the plaintiff would not he entitled to recover is based upon evidence in. the case, and is not inconsistent with the first instruction.</p>

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

Injunction will not be granted where the parties are in dispute concerning their legal rights until the right is established at law. Mammouth, ete., Appeal, 54 Pa. St., 183. Minnig’s Appeal, 82 Pa. St., 373. Corning v. Troy, eto.h 40 N. Y., 191 — 207. The injury being completed, injunction will not lie. Davis v. Londgreen, 8 Neb., 47. Coker *o. Simpson, 7 Cal., 340. And if the trespass be temporary or fugitive there is no ground for the granting of an injunction.

<p>1. Garnishment after Judgment. In proceedings in garnishment after judgment, under section 249 of the Civil Code, if it is found that the garnishee is indebted to the execution defendant, the order of the court should be that the garnishee pay the amount found due. If the order is not complied with, it may • he enforced by execution, as in oases where an ordinary judgment is rendered.</p> <p>2. -: practice: garnishee estopped. When a garnishee, prior to the time when it is required to answer as -to its indebtedness, fi'es an answer as in an ordinary action, and issue being joined thereon a trial is had and other witnesses are examined, without objection to the course pursued, such garnishee will not be permitted to question the regularity of the proceedings in the appellate court.</p>

<p>1. Husband and Wife: conveyance: trust. Where an aged husband conveys certain property to Ms wife for the support of himself and family, and the trust was deliberately created, and is clearly established, it will not be set aside because of tbe disagreement and separation of tbe parties.</p> <p>2. -: -: appointment oe trustee. Where a husband conveys property to Ms wife for tbe support of bimself and family, upon tbe disagreement and separation of tbe partiesthe court may, when it is deemed advisable to tbe due administration of tbe trust, appoint a new trustee.</p>

<p>Husband and Wife: conveyance to wire. Where a husband in advanced years conveys property to his wife for the purpose of having it held in trust for him, and the wife, contrary to the intention of the husband, and in violation of the trust, conveys it to third parties, and with the proceeds thereof or with the money or property of the husband purchases other property and receives the title in her own name, upon their separation equity may require an accounting, and make such decree as to the property owned at the time of the decree as will protect the interests of both the husband and wife.</p>

<p>Damages by Stock: negligence of owner. Where A purchased of B an enclosed pasture, paying therefor an extra price, the consideration for such extra price being that A might turn his stock into such pasture and thereby avoid the expense and trouble of having to herd his stock, which was fully understood by B, and where the stock were turned into the field and continued to run there until the pasturage was eaten up, B residing upon the premises and in a position where he could know of any damage being done by the stock, and where he had cribbed Ms corn on the premises and within the inclosure in which the stock were permitted to run, but A had no knowledge of the existence of the crib of corn, and where A’s stock, without his knowledge, ate and destroyed the corn, Held, That A would not be liable for such damage and that there was no question of negligence on his part to submit to a trial jury,</p>

<p>1. Amendment of Pleadings and Judgment. Where real estate in an addition to a city was described as lots 11 and 12 in block 10 of L’s addition to Lincoln, the block not being platted, and a further description by metes and bounds, in which the property is not accurately described, it is not error for the court to permit the petition to be amended to contain a correct description of the property, and amend the decree accordingly.</p> <p>2. Judicial Sale: purchaser must pay price bid. A party by purchasing real estate at a judicial sale subjects himself to the jurisdiction of the court. Phillips v. Pawley, 1 Neb., 320. And the court'in a proper case may compel him to complete his purchase by the payment of the money. Lansdown v. Eldon, 14 Yesey, 512. Exrs. of Brashear v. Cortlandt, 2 Johns. Ch,, 505.</p> <p>3. --: : — : jurisdiction OP purchaser. A purchaser had given his check on a particular bank, payable on the confirmation of the sale, and after the sale was confirmed stopped payment on the check and refused to receive the deed and pay the purchase price; thereupon a motion supported by affidavits was filed to require the purchaser to pay the money, and an order, after due notice, was entered thereon, requiring him to pay the money in thirty days; Held, Proper practice. The court may proceed summarily against the purchaser, and the officer is not required to bring an action, although he may do so.</p>

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

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

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

<p>Officers of State Institutions: appointment and removal. The act defining the powers and duties of the board of public-lands and buildings does not confer upon the board the authority to appoint and remove officers of state institutions of which they have supervision. Such appointments are to be made by the governor. State v. Bacon, 6 Neb., 286. State v. Board of Public Lands and Buildings, 7 Neb., 42.</p>

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

Ebbok to the district court for Gage county. Tried below before Bboady, J. contended that the record showed the assignment was made Sept. 10, at. 1 a.m., that it was handed to deputy sheriff about 4 p.m., Sept. 11, transmitted to the sheriff Sept. 12, and filed same day at 12:12 P.M. Hence, after the signing and acknowledging of said assignment thirty-nine hours elapsed before it was delivered to the deputy sheriff, and fifty-seven before it was filed for record.

<p>1. Counties: advertisement for bids for bridges. Where a county board advertise for bids for tbe erection of a public bridge which will cost to exceed §>500, in a newspaper printed and of general circulation in the county, and also with a considerable circulation throughout tbe state, but one advertisement continued for four consecutive weeks is necessary.</p> <p>2. -: SELECTION OF PAPER TO ADVERTISE in. Where the county board act in good faith, their decision as to the selection of a paper in which to advertise cannot be attached in a collateral proceeding.</p> <p>• 3. Bridges Between A dj oining Count ies. Sections 87 and 88 of tbe road law merely authorize the county hoards of counties separated by a stream to meet and confer together in regard to tbe erection, jointly, of a bridge across such stream, and to enter into a joint contract for that purpose, but in tbe absence of a contract there is no power in one board to erect or repair a bridge across such stream, and compel the other hoard to pay part of the cost.</p> <p>4. Counties: erection and repair of bridges. The court will not control the discretion of the county board as to what bridges they shall erect or repair, unless there is a clear abuse of the trust, even where there are not sufficient funds available to erect or repair all necessary bridges. So long as such board act within the scope of their authority, an injunction will not lie to restrain them.</p> <p>5. -: BRIDGES BETWEEN ADJOINING COUNTIES: PRECINCT BONDS. Where the middle of a stream is the dividing line between two counties, and a bridge is erected across said stream by the county board of one of such counties, without the cooperation of the county board of the other, -the county erecting the bridge may use precinct bonds, voted for that purpose to complete the bridge in the county not co-operating in the erection of the bridge.</p> <p>6. Bridges: injunction does not lie to restrain payment to contractor. A tax payer who seeks to enjoin the payment of money for the erection of a public bridge which he claims, is being constructed in violation of law, must act with reasonable promptness. If he is guilty of gross laches, and knowingly permits the contractor to incur liabilities in good faith in the construction of the greater portion of the work, an injunction will be denied.</p>

<p>Jurisdiction of Justice. A justice of the peace has jurisdiction to the extent of two hundred dollars in an action founded on a. hond, hill, promissory note, or other instrument in writing, for the payment of a sum of money certain. Bullock v. Jordan, 15 Neh., 665. Burton v. Manning, Id., 669.</p>

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

<p>1. Railroads: damage to stock. Under the provisions of sections one and two of Chap. 72, of Comp. Statutes, where a party’s horse gets on the railroad track for the want of a fence, such as the law requires the company to erect and maintain to enclose its track, and while on or near the track is frightened by a passing train, and in its flight is injured by falling through a bridge on the line of the railroad, and no negligence or willful misconduct is chargeable to the agents of the company in charge of the train at the time, and where no injury is done to the horse by any actual collision or contact with the engine or cars of the train, the railroad company will not be liable to the owner of the horse for such injury. See Schurtz v. I. B. & W. JR. B. Co., 107 111. R., 577. \,</p> <p>2. -: -■: STATUTE construed. The true meaning ol sections one and two of Chap. 72, Comp. Stat., is, that the injury to stock must be caused by actual collision; that is, it must be done by the agents, engineers, or cars of the company, or the locomotives, engines, or trains of any other corporation permitted and running over or upon the said road, or the willful misconduct of the train men in the course of their employment to make the company liable. Id.</p> <p>3. -: — : -. Consequential damages resulting from fright to animals, not caused by actual collision, or any negligence or willful misconduct on the part of the servants of the company, are not embraced in the statute. Id.</p>

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

<p>Appeal from Johnson county. Heard below before Broady, J.</p> <p>Morgan v. Bergen, 3 Neb.’, 214. Reynolds v. B. & M. R. R. Co., 11 Id., 186. Lent v. Same, Id., 203.</p> <p>Laird v. Smith, 44 New York, 618. Hull v. Sturtevant, 46 Maine, 34. Bass v. Gilliland, 5 Ala., 76. King v. Ruelcman, '2i N. J. Equity, 356. Guin v. Roath, 37 Conn., 16. Richmond v. Robinson, 12 Mich., 200.</p>

<p>1. Divorce: dower or wire. Under section 23 of Chap. 25,. Comp. St., entitled “Divorce and Alimony,” a wife, upon obtaining a divorce for the canse of misconduct, etc., of the husband, is entitled to dower in his lands in the same manner as if he were dead.</p> <p>13. -: -. If she mate no demand for dower, and the court in mating a division of the property of the husband, in the nature of permanent alimony, awards a sum in gross to her, it will be deemed to include all her interest in the husband’s estate, and will bar her claim for dower, unless a contrary intent is shown in the decree.</p> <p>3. -: decree: alimony. Upon a divorce being granted, a decree in favor of the wife for permanent alimony will bar her right to any . further claims against the estate of the husband.</p>

<p>1. Criminal Law: prosecution by information. The act “ to provide for prosecuting offenses on information and to dispense with the calling of grand juries, except hy order of the district judges,” which took effect June 10, 1885, applies to all cases where grand juries were required after the act took effect.</p> <p>2. -: grand jury not summoned unless judge direct. The proceedings by information are exclusive, unless the judge, in a written order filed with the clerk of the court, shall require a grand jury, in which case it shall be drawn in the manner provided by law.</p> <p>3. -: -. The authority to require a jury to be summoned from the bystanders is repealed by implication.</p>

<p>1. Murder: evidence tending to lower grade of homicide SHOULD BE SUBMITTED TO JURY. Upon a trial for murder an instruction to the jury which takes from their consideration, or which is susceptible of being understood by the jury to take from their consideration, certain evidence in the ease tending to lower the grade of the homicide to manslaughter is erroneous, and in such ease, the verdict being a general one and the sentence being for fifteen years in the penitentiary, the judgment will be reversed.</p> <p>2. -: verdict: sentence. In a trial for murder a verdict of guilty which does not ascertain whether it be murder or manslaughter, as required by section 489 of the Criminal Code, confers no power on the court to pass sentence on the accused.</p>

Original application for mandamus to compel respondent to issue and deliver to the sheriff of Otoe county notices of the election to be held in said county Nov. 3, 1885, in which shall be named the office of judge of the district court for the second judicial district. ■

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

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

<p>1. Husband and Wife: deed to trustees fob wife. Where land was conveyed by husband and wife by warranty deed to trustees appointed by the will of her father, for the “sole and separate use and benefit” ofi.the wife, etc., the consideration being derived from the father’s estate a. provision in the deed that the husband “ shall have the right to occupy, farm, and control said lands for Tier (the wife) ” does not create any estate in him, where there is no fraud.</p> <p>2. Judgment of Justice: how made lien on seal estate. The transcript of a judgment of a justice of the peace, to become a lien upon real estate, must be filed in the district court of the county where the judgment was recovered, and cannot in the first instance be filed in the district court of another county.</p>

<p>Error to the district court of Colfax county. Tried below before Post, J.</p> <p>Sec. 124, Criminal Code.</p>

Heard below before Pound, J. Plaintiff claims under a patent issued under act of 1870, and he introduces a patent issued under act of 1820. Then proceeds by extrinsic evidence to show that the land department erred in judgment.

<p>1. Assignment: sale: fraud. The mere sale by a party of a stock of goods to a relative is not of itself a badge of fraud. While a transfer of a stock of goods by a debtor in failing circumstances to his mother and brother is attended with suspicion, from the facility with which a secret trust in favor of the debtor may be created, yet where it is clear that such transfer was made in good faith, upon a sufficient consideration, and not to hinder or defraud creditors, it will be sustained.</p> <p>2. -: sale to relative of assignor. Where a bill of sale of a stock of goods was made to the mother and brother of the debtor to pay debts owing by him to them, Held, That as against other creditors the grantees acquired only the right to have a sufficient amount of the goods sold to satisfy their claims, and the balance was a trust fund for the benefit of other creditors, and the grantees must account.</p>

<p>1. Criminal Law: eailuee oe jury to agree on verdict. The authority of a judge of the district court in the trial of a criminal case to discharge the jury in the event of disagreement, without the consent of the prisoner, can only he exercised after the jury have been in consultation for so long a time that there is no reasonable probability that they will agree.</p> <p>2. -: —.-. Where a cause was submitted to the jury at 7 o’clock P.M., and the jury at 6 a.m. next day reported to the judge that they were unable to agree, and were discharged by him without the consent of the prisoner, or notice to him or his attorney; Held, That the discharge of thejury was unauthorized, and the prisoner was entitled to be released.</p> <p>3. -: -. Where a jury in a criminal case is discharged for any of the causes mentioned in section 485 of the Criminal Code, the record .must show the necessity for such discharge.</p>

<p>1. Attachment: motion to discharge. When a motion to discharge an attachment for the reason that the facts stated in the affidavit are untrue, has been heard on affidavits in support as well as in resistance, decided thereon by the trial court, brought to this court on error, and it appears from an examination of-such affidavits that there is a conflict of evidence, the order of the trial court will not he disturbed unless the preponderance of evidence against it is clear and decisive.</p> <p>2.] -: petition. A cause of action in a petition upon a debt not fraudulently contracted, if coupled with a cause of action upon a debt which was fraudulently contracted, and an order of attachment covering both counts is issued upon an affidavit alleging that “ said defendant fraudulently contracted the debt and incurred the obligation for which this suit is brought,” Held, To vitiate such order of attachment and justify its discharge.</p>

<p>Final Order. An order in an action for divorce awarding the wife alimony and suit money pendente lite to be paid by the husband, cannot be taken by appeal or error to the supreme court before judgment or decree granting or denying a divorce.</p>

<p>Appeal and cross-appeal from .the district court of Otoe county. Heard below before Pound, J.</p>

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

<p>1. Dower of lion-resident. Where a husband conveys lands in this state while his wife is a non-resident thereof, she has no dower interest in the lands thus conveyed. Ligare v. Semple, 32 Mich., 438, approved and followed.</p> <p>2. Divorce: conveyance by husband to defeat alimony. Where a husband, while a divorce suit was pending, conveyed all his property to his daughter, the offspring of the plaintiff and defendant, the apparent purpose being to defeat a decree for alimony, Held, That the burden of proof was on the grantee to show a valuable consideration. Lane v. Starkey, 15 Neb., 285. Gregory v. Whedon, 8 Id., 377. Savage v. Hazzard,, 11 Id., 327.</p> <p>3. Constitutional Law: remedy for creditors. Where an equitable right exists in favor of creditors the legislature may create a legal remedy in their favor that will operate upon, existing judgments.</p>

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

<p>1. Partnership Property. Real estate purchased by a firm with partnership funds, and for the use of the partnership, is the property of the firm although the conveyance be made to one of the parties.</p> <p>2. -: insolvent partnership. The property of an insolvent partnership will be applied in the first instance to the payment of debts due the partnership creditors in preference to the creditors of the individual members of the firm.</p> <p>3. Assignment for Creditors. An assignee for the benefit of creditors under a valid assignment may maintain an action to set aside a sale of real estate under an attachment levied after the execution and delivery of the deed of assignment, where such sale would impair or defeat his title as assignee.</p>

<p>Error to the district court for Douglas county. Heard below before Neville, J.</p> <p>Story Agency, § 201. Me Gants v. Wells, 4 S. C. (Eieh.), 381. Darling v. Stamvood, 14 Allen, 504. Commercial Banh v. Martin, 1 La. Ann., 344. Tiernan v. Commercial Banh, 7 How., 648. Daly v. Banh, 56 Mo., 94. Dorchester v. Banh, 1 Cush., 177.</p> <p>Story Agency, §§ 13, 14, 452, 454. Allen v. Merchants Banh of N. Y., 22 Wend., 215. Montgomery Co. Banh v. Albany City Banh, 3 Selden, 459. Com. Banhv. The Union Bank of N. T., 1 Kernan, 203. Smedes v. Bank of Utica, 20 Johns., 372. Banh of Orleans v. Smith, 3 Hill (N. Y.), ■560. Beeves v. The St. Banh, 8 O. St., 465. American Express Co. v.Haire, 21 Ind., 4. Wingate v. Mech’s Banh, 10 Pa. St-., 104. Borup v. Nininger, 5 Minn., 417. Thompson v. Banh of S. C., 3 Hills (S. C.), 77. Tabor v. Perrot, 2 Gall. (U. S.), 565.</p>

<p>^Replevin: answer. An answer in replevin containing an allegation that the property was not unlawfully detained by the defendant, nor was plaintiff entitled to the immediate possession thereof, states a defense and is not demurrable.</p>

<p>1. Insurance: title to property insured. A policy of insurance is prima facie an admission by tbe insurers of the title of the insured to the property embraced in the policy.</p> <p>2. Petition examined, and Held, Good when assailed after verdict.</p> <p>3. Insurance: waiver oe premium. An insurance company may waive the payment of the premium after it is due. And > when it is provided in the note given for the premium that if the note be not paid at maturity the company shall have the right to cancel the policy, the failure to cancel it will be deemed a waiver of such right, and in case of loss payment will be enforced. And especially would this be true if payment of the premium was received (even after the loss and without knowledge thereof) and the money held until after suit brought.</p>

<p>1. Fraud. The representation of a fact in the future, and not a ■ mere promise which has been acted upon and turns out to be false, will entitle the injured party to the same remedies as fraudulent misrepresentations of an existing fact.</p> <p>2. Lien of Attorney. An attorney is not entitled to a lien before judgment upon a cause of action for tort, which in case of case of the death of the parties would not survive.</p>

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

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

<p>Railroads: duty to maintain stations. Under the provisions of the constitution and statutes relating to railroads, where a railroad is built through a town of fifteen hundred or more inhabitants, and it is necessary to have a station at that place, the-corporation may be compelled to erect the same with the necessary side tracks, notwithstanding it has a station at the junction of that and another line one and one-half miles distant.</p>

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

<p>Error from Adams county. Tried below before Morris, J. ■</p>

<p>Offer to Confess Judgment: costs. In a case pending in the district court an offer made by defendant to allow judgment to be taken by the plaintiff in a certain amount therein stated and costs, which offer was in writing and filed in the office of the clerk of said court, but was not served upon the plaintiff or his attorney, nor was it made in open court, the plaintiff being present or having notice thereof; Held, Unavailing to throw the costs made after the filing of such offer upon the plaintiff.</p>

<p>Ejectment: pleadings. Where in an action for the recovery of real property the answer of the defendant pnt in issue the title of the plaintiff, hut alleged no equitable defense, a finding and judgment for the plaintiff upheld, notwithstanding there was evidence which, under proper allegations, would have tended to- establish an equitable defense.</p>

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

<p>Action on Appeal Bond: estoppel. Suit brought on an under- ’ taking or bond entered into for the purpose of appealing from the judgment of a justice of the peace; Held, That the defendant was estopped to deny that an appeal had been taken in the case, in contradiction of his undertaking or bond executed in conformity to the statute for the purpose of perfecting an appeal, although the same was filed with the justice of the peace after the expiration of the time limited for that purpose; and the said appeal was dismissed in the district court for the reason of said undertaking or bond haYing been filed out of time. Gudtner v. Kilpatrick, 14 Neb., 347.</p>

<p>Appeal from York county district court. Heard below before Nob val, J.</p>

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

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

<p>1. Error Without Prejudice. A judgment will not be reversed nor a verdict set aside when an error has been committed without prejudice to the party complaining.</p> <p>2. Written Instructions for Jury. The provision of section 54 of chapter 19 of the Compiled Statutes, directing the charge of the court to the jury to be written in consecutively numbered paragraphs, is a right which the supreme court will regard as waived if no objection is made or exception taken at the time the charge is given, or where exception is taken to a particular clause only. Smith v. The State, 4 Neb., 277.</p> <p>3. Trial: questions for jury. Juries are the judges of questions of fact when properly submitted to them in cases of conflicting testimony.</p>

<p>Transcript of Judgment. Any person having a judgment rendered by a county court, without reference to the amount of such judgment or whether rendered hy the county court during a regular term or hy the county judge when exercising the ordinary powers and jurisdiction of a justice of the peace, may file a transcript thereof in the office of the cleric of the district 1 court in any county in this state and cause an execution to issue thereon.</p>

<p>1. Pleading: ANSWER. A denial must be direct and unambiguous and. answer the substance of each direct charge.. Such facts as are not denied are for the purposes of the action taken as true. Harden v. A. <& N. B. B. Co., 4 Neb., 521.</p> <p>2. -: -: specific PERFORMANCE. In an action for the specific performance of a contract to convey real estate, an answer alleging that plaintiff had agreed to construct a building upon the lot when she purchased it, but had failed to do so, no-such condition being contained in the written contract, and no facts being alleged which would show that it would be to the advantage of the defendant to have such building constructed, constitutes no defense to the action.</p>

<p>Statute of Frauds: promise not within statute. The mother of A. was taken sick. A physician was called, who began to treat her. Upon his second visit she became dissatisfied and desired another physician. A. instructed the physician to pay no attention to the complaints of his mother, but to continue the treatment, and he would pay him for his services. Whereupon the physician continued to treat her; Eeld, That the promise was not to answer for the debt of another, but was an original undertaking, and not within the statute of frauds.</p>

<p>1. Bill of Exceptions. Where an order of the district court extended the time forty days from the adjournment of the court in which to “ present ” a bill of exceptions, Held, To mean the time within which to prepare the bill and present the same to the adverse party or his attorney.</p> <p>% -: construction of statute. The statute relating to bills of exceptions being remedial in its nature will be liberally construed.</p> <p>3. -: Papers in a bill of exceptions marked by the initials of the judge, written by himself, will not be stricken out of the bill as not being identified.</p> <p>4. Assignment for Creditors. A creditor under the assignment law of 1877 is not precluded from suing the debtor and recovering judgment upon his claim, but the assigned property will not be liable for the satisfaction of the judgment unless he can have the assignment set aside as being fraudulent against creditors.</p> <p>5.--: insolvent firm. Where a firm is insolvent the partners cannot by a sale to one partner of their interest, three days-before an assignment for the benefit of creditors is made, divest the property of its partnership character so as to defraud partnership creditors.</p> <p>6. Instruction to Jury. An instruction that “you will assess to the plaintiff such damages as from all the evidence in this case you shall find he has sustained by reason of the illegal taking and detention of the personal property,” is vague, and liable to mislead the jury. Wasson v. Palmer, 13 Neb., 376.</p>

<p>1. Criminal Law: libel. A libelous charge made by A against B contained in a letter written and mailed in this state to C, residing in another state, is sufficient to render A liable in this state for the offense.</p> <p>a. -: -: HUSBAND AND WIFE. To render a husband liable for a letter containing libelous charges written by his wife, it must appear either that he aided in or authorized the writing of the libelous matter</p> <p>3. -: -: -: EVIDENCE. Where on an indictment for libel for matter contained in a letter signed in the husband’s name he was found guilty, and the testimony tended ^o show that the letter was written by the wife, and that the husband did not aid in composing or authorize the use of the libelous words, the judgment was reversed.</p>

<p>1. Verdict. Where the evidence on the part of the plaintiff and defendant in an action is nearly equally balanced, the verdict will not be set aside as being against the weight of evidence.</p> <p>2. Attorney and Client. To make a communication from a party to an attorney privileged, the relation of attorney and client must exist between them.</p> <p>3. Replevin: damages. In replevin, damages for the detention of the property are recoverable only in case of a return. If the property is not returned the measure of damages is the value of the property as proved, together with lawful interest thereon from the date of the unlawful taking. Mainer v. Lee, 12 Neb., 452.</p>

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

<p>1. Homestead. A tenant in common is not entitled to a right of homestead on the common property as against a judgment in partition in favor of a co-tenant for the value of his interest.</p> <p>2. Partition: jurisdiction OB' court. Where an action in partition is properly brought on a legal title, and the defendant sets up an equitable defense, the court has authority to determine the validity of such defense, and adjudicate upon the rights of the parties.</p> <p>3. -: case stated. Where a certain lot of the value of $2,500 was devised by will to six persons, two of whom conveyed their interests to the defendant, in an action of partition, JBeld, 1st, That where one of the shares was attached to the shares of the defendant without objection, a judgment making the value of such share a lien on the defendant’s portion was not erroneous. 2d, That a balance due from the defendant for rents and profits appropriated by him might be enforced against his interest in the property.</p> <p>4. -: -. Where the premises are incapable of a fair division, the court has power to award a pecuniary compensation to one of the parties for equality of partition.</p>

<p>Attorney Fee. Under a statute which authorizes the allowance of an attorney’s fee in certain cases, proportioned to the amount of recovery, the debtor cannot, by paying a considerable portion of the debt immediately preceding the rendition of judgment, defeat the recovery by the attorney of fees upon the entire sum for which, but for the payment, judgment would have been rendered.</p>

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

Original application for mandamus to compel the-board of county commissioners of Douglas county to allow the amount claimed to be due the state for the care and protection given to insane patients from that county. It was submitted to the court on the following agreed statement of facts: “ In this case it is stipulated and agreed by the relator and respondent,, acting through their respective attorneys, Wm.

- Heard below on report of N. K. Griggs, referee. 1. We contend possession once established in Mrs. Towle by material acts of visible and notorious ownership must be presumed to continue until open, notorious, adverse is proved to have taken place in some one else.. Clements v. Lampkin, 34 Ark., 598, 602. Marston v. Rowe, 43 Ala., 271, 285. Rayner v. Lee, 20 Mich., 384, 386.

<p>Mechanic’s , Lien: appeal: equity jurisdiction. One S. brought an action to foreclose a mechanic’s lien against L. & L. the owner of the fee, P, & Co., material men, being made parties. P.& Co. answered settingup the amount due to them, and claiming a lien. The court found in favor of S. and against P. & Co., and rendered a decree accordingly. P. & Co. appealed, and on the hearing their claim was held to be valid, and the cause was remanded to the court below to enter judgment in conformity to the opinion. Held, 1st, That as the interests of the parties were inseparably connected the appeal brought up the entire •case, and the court must enter a new decree; 2d, That the court •should adjust the equities between S. and L. & L., and if necessary take additional evidence for that purpose.</p>

<p>Original application for mandamus.</p> <p>Johnson v. Hahn, 4 Neb., 143. Blackwell Tax Titles, 172-177. Cooley, 302.</p> <p>Comp. Stat., Ch. 77, §§ 89, 138, 139.</p> <p>Kittle v. Sherwin, 11 Neb., 67. ' Cooley, 34. 2 Desty, 746. Ham v. Miller, 20 Iowa, 450. Annapolis v. Harwood, 32 Md., 471. Shaw v. Pickett, 25 Vt., 482.</p>

<p>Tax Sales: purchase by county commissioners. At all tax sales, public or private, the county commissioners of the proper . county may purchase for the use and benefit of their respective counties any real estate therein which has been offered at public sale for delinquent taxes and remains unsold for the want of other bidders.</p>

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

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

<p>Judgment: lien. A judgment in the district court is not a lien upon an equitable interest in real estate of the debtor.</p>

<p>1. Consideration: promise for a promise. Where several promise to contribute to a common object desired by all, the promise of each is a good consideration for the promise of the others, and can be enforced by suit when the corporation or person to whom the subscription runs has incurred obligations on the faith of such subscriptions, and has complied with the conditions on which they were made.</p> <p>Contract: time. Where a time is fixed in which certain work is to be done, it is not, in general, so far of the substance of the contract that if the work is done, but not until some days later, no compensation can be recovered. In such case an action for the price will be sustained, leaving the defendant to show any injury he may have sustained by the delay.</p> <p>3. -: PRACTICE: AMENDMENT IN SUPREME COURT. Where an action is brought upon a contract instead of a quantum meruit, and all the proof introduced without objection, showing the right of the plaintiff to recover, the supreme court will, if necessary, permit an amendment of the petition to conform to the proof, or remand the cause to the district court for such amendment.</p>

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

<p>Appeal from Hamilton county. Tried below before Norval, J.</p> <p>Burr v. Sim, 4 Wharton, 150. Eagle’s Case, 3 Abbott, 218. Proctor v. McCall, 23 Amer. Decisions, 135. Holmes v. Johnson, 42 Pa. State, 164. Miller v. Beates, 8 Amer. Decisions, 658. Abbott’s Trial Evidence, 74.</p> <p>Jamison v. Smith, 17 Rep., 300. John Hancock v. Moore, 34 Mich., 41. Best Evidence (Morgan’s Ed.), § 409. Tisdale v. Insurance Co., 26 Iowa, 170. Byan v. Tudor, 31 Kan., 366. Hancock v. Insurance Co., 62 Mo., 29.</p>

<p>Error to the district court for Cass county. Tried below before Pound, J.</p> <p>ITidd’s Pr., 641. Myers v. Erwin, 20 Ohio, 382. Ailing v. Sheldon, 16 Conn., 436. Sweet v. Tuttle, 14 N. Y., 465. Manaban v. Gibbons, 19 Johns., 427. Detroit v. Houghton, 42 Mich., 459. Williams v. State, 6 Neb., 334. Miller v. Jeioeti, 5 Pac. Rep., 652. Stearns v. Barnet, 2 Mason, 173. Ross v. Austill, 2 Cal., 183.</p> <p>Puterbaugh’s Practice, 144. 2 Broom & Hadley’s Blackstone, 253. 4 Kan., 37. 9 Id., 104. 15 Id., 495. 33 Mich., 243. 34 Id., 4.</p>

<p>Error to the district court for York county. Tried below before Normal, J.</p> <p>2 Benjamin on Sales, § 1054. Metz & Albrecht, 52 111., 491. Clark v. Dales, 20 Barb., 42. ' Porter v. Bose, 12 Johns.,. 209. Garret v. Gonter, 42 Penn. State, 143. Kitzinger v. Sanborn, 70 111., 146.</p> <p>Avery v. Stewart, 2 Conn., 69. Barrett v.. Allen, 10 Ohio, 426. Salter v. Burt, 20 Wend., 205. Barnes v. Eddy, 12 R. I., 25. 2 Parsons on Cont., 178. and 179 — 4th Ed. 2 Hill, 378, note b. Brooklyn Oil Befinery Co. v. Brown, 38 How., 449.</p>

Tried below before 'Wakeley, J. 1. Defendant can not exonerate itself upon the proposition that the accident resulted from the act of God, unless it shows that it was guilty of no act which contributed to the accident. Shearman & Red field on Neg., p. 6, § 5. Pruitt v. Han. & St. J. B. R., 62 Mo., 527-541. Hutchinson on Carriers, p. 145, § 186. Michaels v. -N. Y. Gen. R. R., 30 N. Y., 564. Read v. Spaulding, 30 N. Y., 630. Bostwiek v. B. & O. R. R. Go., 45. N. Y., 712.