Volume 19 — Nebraska Reports

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

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

Eeroe to the district court for Richardson county. Tried below before Broad.y, J. contended: 1. That the mortgage given should be construed as an assignment in its legal effect. Brown v. Webb, 20 Ohio, 389. Bates v. Coe, 10 Conn., 293. Perry v. Holden, 22 Pick., 269. Wallaoh v. Wylie, 28 Kan., 138. Winstead v. Plulme, 32 Kan., 572. Jeffrey v, Greenbaum, 20 N. W: R., 775. 2. That defendants •could not be heard for the purpose of having the attachment dissolved.

The action was brought by plaintiff to recover taxes for 1881 paid by him under protest. Judgment below before Nor-YAL, J., dismissing the action. cited: Cooley Taxation, 14-16. Hoyt v. Commissioners, 23 N. Y., 224. Lyman v. Fishe, 17 Pick., 234. Story Confl. Laws,'39, 42, 46. cited: Jones v. Seward County, 10 Neb., 154. Goldgart v. People, 106 Ill., 27. People v. Gardner, 51 Barb., 352. Wilcox v. Pilis, 14 Kan., 601. People v. Trustees, 48 N. Y., 390.

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

<p>1. Replevin: non-suit impeopee. In an action of replevin the trial court should in no case grant a non-suit, but in case of the plaintiffs failing to prove his cause of action the court should retain the cause for the purpose of taking the proper proofs and rendering the appropriate judgment.</p> <p>2. Instructions to the jury examined, and Séld, Rightly given and refused.</p>

<p>Error to the district court for Lancaster county. Tried below before Pound, J.</p> <p>cited: Milton v. State, 6 Neb., 144. Mutual Hail Ins. Go. v. Wilde, 8 Neb., 427. Holland v. Griffith, 13 Neb., 475. Shapleigh & Go. v. Dutcher, 15 Neb., 564.</p> <p>cited: St. Louis v. State, 8 Neb., 405. Parrish v. State, 14 Neb., 61. Murphy v. State, 15 Neb., 383. S. G. & P. R. R. v. Finlayson, 16 Neb., 578.</p>

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

<p>Appeal from the district court of Lancaster county.</p>

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

<p>1. School District Bonds. The bonds sued on purport to be signed by Peter Robertson, moderator, John G. 'Winclder, director, and William Richards, treasurer. They were dated October 16, registered October 23, and negotiated and issued by the district after the latter date. The said William Richards having been appointed director, and having accepted said office October 22, Held, That he will be presumed to have signed the said bonds after his appointment, notwithstanding the date of the bonds.</p> <p>2. -. There was evidence to the effect that the name of John G. Winclder, director, was not placed on the bonds by his own hands; that he'being of advanced age and feeble health had about that time always made use of Ms son as Ms amanuensis to write his name to all papers, and the bonds were signed in that way; and there also being evidence that Mr. "Wmckler treated the signature purporting to be Ms to the bonds as his own, by participating in the negotiation and sale of the bonds, Held, That the bonds are the valid bonds of the district,</p> <p>3. -: statute oe limitation's. There being evidence that the county commissioners levied taxes on the taxable property in said school district for the purpose of paying the interest on said bonds, and to provide a sinking fund for the final redemption of the same; that such taxes were collected by the county treasurer and paid on said bonds within five years next before the commencement of said action; Held, That such payment was sufficient to take the bond upon, which it was paid and endorsed out of the statute of limitations.</p>

<p>Appeal from Lancaster county district court. Tried below before POUND and Mitchell, J. J.</p>

<p>Attachment: affidavit : case stated. Affidavit for attachment contained, among others, the following allegation: “And that the defendant, D. McG-.,is ahont to convert,his property, or a part thereof, into money for the purpose of placing it beyond the reach of his creditors.” On motion to discharge the attachment on the ground and for the reason that the facts stated in the affidavit for attachment are untrue, and it appearing by affidavit that on the day of the issuance of the attachment the defendant executed and placed on record two deeds to his wife, by each of which he conveyed to her a lot of land, for a nominal consideration, respectively; and one of said conveyances being explained and shown not to be fraudulent by the respective affidavits of defendant and his wife, but the other conveyance not being explained, nor in any manner accounted for, or even alleged to have been made in good faith, or for a valid consideration, the order of the district court discharging said attachment reversed.</p>

<p>Ereoh to tbe district court for Johnson county. Tried below before Broady, J.</p> <p>cited: Stenton v. Jerome, 54 N. Y., 480. Lockwood v. Thorne, 11 N. Y., 170. Daniels v. Wilber, 60 Ill., 526. Champion v. Jos-lyn, 44 N. Y., 653. Wilson v. Wilson, 14 Com. Bench, 626. Jones v. Dimn, 3 Watts & S., 109. Kennedy v. Goodman, 14 Neb., 585. Roberts v.. Totten, 13 Ark., 609.</p> <p>cited: 1 Nash PI. and Pr., 757. 5 Wait’s Pr., 666. Slee v. Bloom, 20 Johns., 669. Kronenberger v. Binz, 56 Mo., 121. Horan v. Long, 11 Tex., 230. Sutphen v. Cushman, 35 Ill., 186. Ruffner v. Hewitt, 7 West Va., 585. Terry v. Sickles, 13 Cal., 427.</p>

<p>1. Public Records: pee book. The record known as the fee hook, kept by the clerk of the district court, is a public record.</p> <p>2. -: examination. Any person interested in the examination of a public record may do so free of charge.</p>

<p>1. Trial: original petition as evidence. When a cause is being tried upon an issue formed by an amended petition, answer, and reply, tbe original petition, if inconsistent with the amended petition,.is competent evidence for the purpose of proving admissions inconsistent with the claim and testimony of plaintiff upon the trial. And where such pleading is verified by the oath of the party filing it, and it is shown that the contents were known and understood at the time of such verification, and where the determination of the cause depends upon the unsupported testimony of the party thus contradicted, such evidence would he entitled to weight. But if the testimony offered by both parties tended to support the allegations of the amended petition, and it is not shown that the party verifying the original pleading knew its contents, not understanding the language in which it was written, the rule would not apply with so much force.</p> <p>2. Specific Performance: sale op part op homestead. Where a defendant and his wife sold a part of their homestead and executed their joint conveyance therefor and delivered the deed to the purchaser, and where it was afterwards ascertained that the premises were encumbered by judgment liens .which could be enforced against the deeded premises and the deed was surrendered to the seller and a lease taken for six years, ■ with the understanding and agreement that at the end of that time the judgment liens would be canceled and the contract of sale then carried out, the purchaser will be entitled to receive the deed at the expiration of the six years, or when the judgment liens are removed, and such right will date, so far as the homestead rights of the grantors are concerned, from the delivery of the deed by them.</p> <p>3. Conveyance by Deed: redelivery ob surrender does not divest title oe grantee. Where a deed of conveyance of real estate is executed and delivered to a purchaser, such execution and delivery vests the title of the grantor in the grantee and a redelivery or surrender of the deed unaccompanied with the purpose of rescinding and annulling the contract of purchase will neither divest the grantee of the title nor operate as an estoppel against him.</p> <p>4. Specific Performance: evidence: decree. In an action for the specific performance of a contract for the sale of real estate where the prayer is for general relief it was Seld, That if the facts stated in the petition and proved on the trial showed that the contract had been performed and the conveyance made, and that the proper relief would be a decree quieting the title of the plaintiff, such decree should be entered as would protect the plaintiff in the enjoyment of the property in question. But that such decree should be subject to the payment of the unpaid part of the purchase .money as is shown to be unpaid and of the taxes paid by the defendant as accrued liens after the execution and delivery of the deed.</p>

<p>Contract: 111:801831011: TRIAL: instructions to juey. There being evidence before the jury tending to prove a rescission by W. of the contract between him and M., an instruction stating the supposed facts of the case, and telling the jury that if they believed such facts from the evidence they should find for the defendants, but which instruction ignored and left out the question of rescission and the evidence thereof; Held, Erroneous, and a new trial awarded, although iri other and former instructions the court had properly instructed' the jury upon the law of rescission and its application to the case before them.</p>

<p>1. Injunction: effect of the obdeb. An order of injunction only restrains the defendant or defendants to the action in which the same is issued, and such persons acting in or occupying a subordinate position to him, or them, as may be named, described, or in some manner designated in such order.</p> <p>2. Contempt. Proceedings in contempt are in their nature criminal, and the strict rules of construction applicable to criminal proeeédings are to govern therein. Van Zant v. Arg. Mining Co., 2 McCrary, 644.</p>

<p>1. Evidence: lostpapebs: secoudaby evidence. Where it is sought to prove by a member of a law firm after its dissolution that he has made search for certain instruments sent to the firm and that he cannot find them, in order to admit secondary evidence of their contents it must he made to appear that he retained the possession of the same, and that search was made in such places as the instruments, if in existence, in all probability would be found.</p> <p>2. School District Bonds. Where the execution and validity of certain school bonds were denied; Meld, That unless there was some proof of their issue, sale, or ratification by the district, the court should direct a verdict for the defendant.</p>

<p>1. Railroad: liability bob injüby to employe. The under hoss of a gravel train gang was directed' by his immediate superior to take men and dig out a car which had been partly covered and derailed by a fall of gravel from a high bank near by, and in pursuance of such order proceeded to dig out the car, and while so employed was killed by the embankment caving in. Prior to that time the custom had been to station a watchman to give notice to the.workmen of danger from the falling bank, which was omitted on that occasion. Held, That the company was liable.</p> <p>3. -: -. The conductor of a gravel train on a railroad, with a gang of men under his immediate control, in the employ of the railroad company, is, as to such men, the vice-principal of the railroad company and not a fellow servant.</p> <p>3. --: -. A sub-boss under tbe immediate control and direction of tbe conductor or tbe person in charge of a gravel train is not, as to such conductor .or person in charge of tbe train, a fellow servant. ■</p>

<p>1. Bill of Exceptions. Affidavits used in the' trial court to he available for a review of the question in the supreme court must he embodied in a bill of exceptions.</p> <p>2. Default: judgment. Where an answer or other pleading of a. defendant is properly on file no judgment by default can be entered against him.</p> <p>3. Answer: amendment. An answer filed in the district court,. hut entitled “ in the county court,” is amendable, and if applicable to the petition cannot be disregarded.</p>

<p>Mandamus: supersedeas bond. Where a peremptory writ of mandamus was granted by the district court against a street railway company to compel it to run cars over a certain portion of its line, and the railway company sought to have the judgment reviewed in the supreme court and to compel the district court to fix the amount of the supersedeas "bond; Held, That there was no provision of the statute requiring such court or judges to fix the amount of the undertaking in such case.</p>

<p>1. Amer'cement. In all proceedings against sheriffs or other officers for failure to return writs of execution, etc., the inquiry is permitted whether the debt could have been collected, and whether its collection has been prejudiced by the acts of the defendant. Orooker v. Melielc, 18 Neb., 227.</p> <p>3. -: damages. In such cases the actual loss sustained by the plaintiff in the value or availability of his security by reason of the act or negligence of the defendant is the measure of his damages.</p>

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

<p>1. Mandamus: justice of peace: pleading. Upon an application for a mandamus by a person who has duly received a certificate of election to the office of justice of the peace to compel the delivery to him hy the late incumbent of said office of the dockets and papers appertaining thereto, the cause of action necessary and proper to he set out in such application consists solely in his having been canvassed in, declared elected, awarded a certificate of election, taken the oath, and given the bond required by law, and the respondent having refused or failed to deliver up to him such dockets, papers, etc., on de- ‘ mand.</p> <p>2. -: -: ANSWER. To such application or relation nothing may be properly pleaded in answer which does not deny or put in issue some or all of the above facts.</p>

<p>1. Liquors: CONSTRUCTION of statute. The provisions of sec tion 3, chapter 50, of the Compiled Statutes of 1885, by which it is provided that upon an objection, protest, or remonstrance being filed against the issuance of a license to sell intoxicating liquors, the county board, city council, or village trustees shall appoint a day for hearing the case, is mandatory, and the board, council, or trustees have no authority to issue a license without appointing a time for hearing a remonstrance filed and investigating the same.</p> <p>2. -: practice IN issuance of license. Where a petition is filed asking a board having authority to issue a license to sell malt, spirituous, and vinous liquors, and a remonstrance is filed in opposition thereto, in which it is charged that during the year last passed the petitioner had violated certain provisions of chapter fifty of the Compiled Statutes of 1885, the board has no right to issue the license but must appoint a time for hearing the remonstrance if the allegations are sufficiently specific.</p> <p>3. -: REMONSTRANCE against license. The village clerk is the clerk of the board of village trustees. A remonstrance filed in the office of such clerk is “filed in the office where the application is made,” and is sufficient.</p> <p>4. -: -: time OF filing remonstrance. Where an application is made to a board for license to sell intoxicating liquors and notice thereof duly given, remonstrances and objections to the issuance of the license may be filed at any timt, before the license is granted. The time for the filing of remonstrances is not limited to within two weeks after the filing of the application, for license.</p>

<p>Trial. In cases tried to a court without the intervention of a jury, the finding on questions of fact is entitled to the same respect in the supreme court on appeal as would he accorded to the verdict of a jury under like circumstances, and will not he interfered with unless clearly wrong.</p>

<p>ERROR to the district court for Douglas county. Tried below before Neville, J.</p> <p>cited: B. & M. It. It. v. Thompson, 1 Pac. Rep., 622. Mooney v. U. T. It. It., 14 N. W. R., 343. Conley v. Chileote, 25 Ohio State, 320.</p> <p>cited: Pwndt v. 'Clary, 13 Neb., 407. Fitzgerald v. Hollingsworth, 14 Neb., 188. Pierce v. C. & N. W. R. R., 36 Wis., 288. Thompson’s Exemptions, §§ 833, 838. Jones v. Comings, 6 N. H., 497.</p>

<p>1. Liquors: action against saloon keepeb: petition. Where the allegations in a petition filed by a wife and minor children against a saloon keeper for loss of means of support, caused by liquor sold to the husband and father, are that liquors were sold to the husband and father in quantities sufficient to produce intoxication, which Wm. H. T. drank and thereby “ became intoxicated, and while in this drunken condition R. (the saloon keeper) • continued to furnish him such intoxicating liquors,” an allegation thereafter made, that by reason of the use thereof‘‘he has become an habitual drunkard,” is not irrelevant.</p> <p>2. -: -: -. The words “in a great measure,” qualifying the allegation of loss of labor and support by the husband, Held, Sufficiently definite.</p> <p>3. Trial: objection to petition, tyhere objection is made on the trial of a case for the first time, that the petition does not state facts sufficient to constitute a cause of action, the court should, if possible, sustain the petition, or permit an amendment thereto to be made instanter.</p> <p>4. Evidence examined, and v.erdict Held, To be excessive, with leave to plaintiffs to remit from the judgment the sum of |295.66$.</p>

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

<p>Error to the district court for Richardson county. Tried below before Mitchell, J., sitting for Broady, J.</p> <p>cited: Watson v. Voorhees, 14 Kan., 328. Godfrey v. Thornton, 1 N. W. R., 362. Mnlloy v. Ingalls, 4 Neb., 115. White v. Gilbert, 10 Neb., 539. Harrison v. Mo-Whirtir, 12 Neb., 152. Tucker v. Allen, 16 Kán., 312. Jones v. Evans, 7 Dana, 96. Osterhout v. Shoemaker, 3 Hill, 513. Edgell v. Hagens, 5 N. W. R., 136.</p>

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

<p>1. Contract to Dig Well: CONDITIONS: waives. H. and W, entered into a written contract by which H. agreed to dig á well for W., the compensation to depend upon the quantity of water produced, the measurements to he made in the manner provided for in the contract. The well was completed and the water measured by H., but not in strict compliance with the method provided for in the contract. W. was not present at such measurement. He made no measurements himself an driver sought to have any made. The measurements made by H. showed that the quantity of water secured was equal to the amount required by the contract. Held, That the failure of W. to procure any measurements to be made was a waiver of that part of the contract and that the fact that the measurement was not made in strict compliance with the contract did not of itself constitute a defense.</p> <p>2.-: -: yehdict. In such case the testimony showing a substantial compliance with the contract, the requisite quantity of water being secured, a verdict of the jury in favor of H. will not be disturbed..</p>

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

<p>1. Municipal Corporation: aid to internad improvements. A city of the second class may make donations to railroads or other works of internal improvement in an amount in the aggregate not to exceed ten per cent of the assessed valuation,' and bonds issued for water-works which the city owns, and for other city purposes, cannot he computed as a part of such ten per cent.</p> <p>2. -: -: certification. Bonds issued by a city as a donation to a railroad must have the certificate of the secretary and auditor of state indorsed thereon, and if such bonds do not have such certificate such officers will not he required to certify refunding bonds based on such prior bonds.</p>

<p>1. Municipal Corporations: aid to internal improvements. A city has authority -under the statute to donate to one or more railroads or other worts of internal improvement its bonds not to exceed in the aggregate ten per cent of the assessed valuation; and bonds issued for water-works owned by the city or other city purposes are not to be computed in making up the aggregate which the city may donate.</p> <p>2. -: -: STATUTORY authority. The authority for a ciiy to issue bonds to aid in the construction of railroads or other" works of internal improvements is expressly conferred by sec.T, chapter 45, Compiled Statutes.</p> <p>3. -: -: -. The word “ aid ” as used in the statute . may include donations.</p> <p>4. -: -: DUTY OF AUDITOR AND SECRETARY OF STATE. The provision in the constitution requiring the secretary and auditor of state to endorse on bonds issued as a donation to a railroad or other work of internal improvement, that such bonds were “issued pursuant to law,” requires no legislation to carry it into effect, but it is the duty of such officers in a proper case to make such endorsement.</p> <p>6. -: -: -. The provision applies to all bonds issued for that purpose, and not alone to the five per cent in excess of the ten per cent first issued.</p> <p>6. -: -: mandamus. Sec. 31, chapter 9, Compiled Statutes, authorizes a city in a proper caseto institute a proceeding to compel the certification of bonds issued by such city.</p>

<p>1. Exemption. Sixty days wages of a laborer, mechanic, or clerk who is the head of a family are exempt from execution, attachment, or garnishment, and it is the duty of the employer summoned as garnishee, when knowing the facts, to state them in his answer.</p> <p>2. -: GARNISHMENT. Where there was no charge of bad faith on the part of the employer in failing to state in the answer in garnishment that the wages were exempt, and in pursuance of the order of the court paid the money into court where the debtor claimed it as exempt, and filed a motion supported by affidavits for its delivery to him, which motion was overruled, the debtor will, so far as the garnishee is concerned, be concluded by the garnishment proceedings and cannot afterwards bring an action against the garnishee to recover the debt.</p>

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

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

<p>Municipal Corporations: defective sidewalk: damages. In an action to recover damages against a city for injuries caused by a defective sidewalk, where the proof shows that the sidewalk was defective at the time of the injury and had been so for a long time prior thereto, of which defect the street commissioner had actual notice, and that such defect caused the injury, the verdict will not be set aside as being against the weight of evidence.</p>

Tried below before PouND, J. cited: TIanawalt v. State, 24 N. W. R., 489. Yoimy v. Makepeace, 103 Mass., 50. On arraignment and plea, cited: Aylesworth v. State, 65 Ill., 301. Ch’eater v. State, 54 Ind., 159. Grigg v. People, 81 Mich., 471. On opinion of expert .witnesses, cited: Stilling v. Thorp, 54 Wis., 528. Com. v. Sturtivant, 117 Mass., 130. cited: State v. Weber, 22 Mo., 321. State v. Cassady, 12 Kan., 650.

<p>Habeas corpus.</p>

<p>1. Landlord and Tenant: tenant holding over. Where a lessee of agricultural lands on shares for the term of one year holds over for another year by the consent of the landlord no different or other contract as to the terms of the lease having been made, in an action for rent the law will imply an agreement to hold for the year upon the terms of the prior lease.</p> <p>2. -: mobtgagb or CROP by tenant. In such case the tenant may mortgage his interest in the crop raised without the consent of the lessor, and the mortgagee will hold the title of the lessee to the mortgaged property, but subject to all the rights of the lessor, and such mortgage will be no violation of his rights.</p> <p>3. Referee: practice. A conclusion of law of a referee, even if erroneous, upon an immaterial or unimportant question in the ease, will not vitiate his report or require it to he set aside by the court to which it is returned, if the findings and conclusions are in other respects correct.</p>

<p>1. Roads: damages on opening. Where a public road is located alongside of a railway previously constructed and in- operation, the jury in awarding damages to the land owner for such public road cannot consider as an element of damage the fact that teams passing along such road might be frightened by the cars and run away and injure this land owner’s fences or crops.</p> <p>2. -: -: INSTRUCTION TO JURY. The jury should be instructed as to what constitutes the proper elements of damage and an instruction that the jury should allow the land owner “ any incidental damages sustained by reason of the location of the road,” etc., without stating what constitutes incidental damages, is liable to mislead the jury.</p>

<p>Contract: coekcion isr making: equity jubisdiction. Where coercion is not sufficient to amount to duress, but a social or domestic force is exerted on a party which controls the free action of his will, and prevents voluntary action in the making of a contract or execution of deed for real estate, equity may relieve against the same on the ground of undue influence.</p>

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

Bill op EXCEPTIONS from Platte county, Post, J., presiding, filed by district attorney under the provisions of section 515, criminal code.

Bill op exceptions from Dodge county, Post, J., presiding ; filed by the district attorney under the provisions of sec. 515, criminal code.

<p>1. Liquors: bond of seller. A liquor dealer’s bond with sureties, was given to the village of Hebron, instead of the state of Nebraska. Held, That such bond was not therefore invalid; and that a wife may maintain an action thereon for loss of means of support caused by intoxicating liquors sold to her husband. Huffman v. Koppellcom, 8 Neb., 344,followed. 8exson v. Kelley, 3 Id., 104, distinguished.</p> <p>2. -: -. The bond is for the use of any person who may be injured by the sale or giving away of intoxicating liquors by the person licensed or his agent, and the obligee is not necessarily nor usually the party interested.</p> <p>3. -: -: APPROVAL. Where the bond of a liquor dealer is filed with the clerk and retained by him, and the principal in the bond then engages in the sale of intoxicating liquors, the sureties cannot plead as a defense to the bond that no formal approval was endorsed on such bond.</p> <p>4. -: -. The recital in a bond signed by the principal and sureties that “ a license to sell malt, spirtuous, and vinous liquors as provided by law, was issued to the principal ” is sufficient prima faeie as against them to show the issuing of license.</p> <p>5. -: -: liability OR SURETY. Where the same surety signs the bonds of two or more dealers he will be liable on each, and the validity of such bonds will not be affected.</p>

<p>1. Criminal Law: evidence of pbisoneb. At common law, where the accused was not permitted to testify in Ms own behalf, the testimony of the prosecutrix might he sufficient to warrant a conviction for rape; but under the statute, where the accused avails himself of the right to testify and clearly and explicitly denies the commission of the oifense, there must be testimony corroborating that of the prosecutrix to authorize a conviction. Oleson v. State, 11 Neb., 276. Mslc v. State, 9 Neb., 62.</p> <p>2. Rape: evidbivcb. To authorize a conviction for rape the testimony must show that the prosecutrix resisted to the extent of her ability. Evidence examined, and Held, Insufficient.</p> <p>3. Evidence: objection! Where a question is asked a witness to which objection is made, which is sustained, the party desiring the evidence must offer to prove the facts sought to be introduced in evidence.</p> <p>4. Criminal Law. An escape is not necessarily an admission of guilt.</p>

<p>Homestead: liability foe debts. Where a homestead of greater value than 82,000 is transferred from a hushand to his wife without consideration, and still occupied as a homestead, the surplus in value over 82,000 will he liable in the hands of the wife for debts of the husband contracted before the transfer, in the same manner as though the title had remained in the hus-, band.</p>

<p>1. Justice of the Peace: jurisdiction. Where the amount claimed does not exceed $200, and where an action is brought against a sheriff for the value of property sold by him under an execution in his hands, and there is no charge of misconduct, a justice of the peace has jurisdiction.</p> <p>2. Trial: evidence: stenographer's record. A certified copy of the stenographic reporter’s record of proceedings in the district court is admissible in all cases where the original would be; and where the partiés stipulate that the evidence of a witness on a former trial may be used instead of taking his deposition the stipulation should be enforced.</p> <p>3. -r: -: STATUTORY CONSTRUCTION; Sec. 394 of the code for the inspection of books, papers, or documents in the hands of the adverse party, does not apply to copies of a public record open to the inspection of both parties; and a copy of which may be obtained by either or both parties upon payment of the necessary fees.</p> <p>4. Continuance. Where material testimony is suppressed, without which the party in whose favor it was taken cannot safely proceed to trial, the court, upon the application of such party and upon such terms as may be just, should grant a continuance.</p>

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

<p>Assignment for Creditors. That part of section six of chapter six of the Compiled Statutes, which requires an assignment of property for the benefit of creditors to be recorded within twenty-four hours after its execution, construed, and the word “execution” held to include the delivery of the assignment and the surrender of control over it.</p>

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

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

<p>Appeal from the district court of Douglas county. Heard below before Wakeley, J.</p> <p>cited: Fox v. Meacham, 6 Neb., 535. Williams v. Fowler, 2 J. J. Marsh, 405. Freeman Judgments, 489, 517, 519.</p> <p>cited: High on Injunctions, §§ 88, 97,131. Crandall v. Bacon, 20 Wis., 639. Stokes v. Knarr, 11 Wis., 407.</p>

<p>MotioN to dismiss.</p>

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

<p>Appeal from the district court for Johnson county. Heard below before Beoady, J.</p> <p>cited: Matthews v. Sowle, 12 Neb., 404. Stoll v. Sheldon, 13 Neb., 209. Qraul v. Strutzel, 53 Iowa, 712.</p> <p>cited: Layet v. Gano, 17 Ohio, 466. 1 Parsons Contracts, 42. Dinsmore & Co. v. Stimbert, 12 Neb., 438.</p>

<p>1. Estoppel: judgment: bes adjudicata. In order to constitute a former adjudication which can he pleaded in har of a recovery, the judgment pleaded must he in an action between the same parties, or their privies, and upon the same subject-matter as the cause in which the defense is presented.</p> <p>2. Attorney and Client: pbivileged communications: evidence. Where an attorney is employed to prosecute an action to foreclose a mortgage, and before the final foreclosure is consummated, and during the litigation, the plaintiff denies the authority of his attorney to prosecute a collateral action which, if prosecuted, would work an estoppel on plaintiff; and where in a subsequent action in which the question of the authority of the attorney to act becomes important, for the purpose of determining the rights of parties affected by the first decree, it is not a violation of the law of privileged communications to allow the attorney to testify as to his employment, and as to the instructions given him by his client, or as to his approval of the course pursued by the attorney. Especially is this the case where the relation of attorney and client has ceased and the authority of the attorney is called in question by the client, and in a case where equities of third parties are to be settled without detriment to the rights of the client.</p> <p>3. Mortgage: foreclosure: jssw mortgage: priority op LIENS. A executed a mortgage to B on.' certain lands to secure the payment of a sum of money. Afterwards, and during the existence of the lien created by the mortgage, A, upon the conditional consent of B (the condition being that the new security should be of equal value with the old), exchanged part of the real estate mortgaged for other real estate of less value, receiving the difference in cash, and executed a new mortgage on the property received by him in exchange for that previously mortgaged, receiving a release, which he failed to have recorded, and conveying the land described in the first mortgage to the purchaser. B was a non-resident. The mortgage was placed in the hands of attorneys for foreclosure who had no knowledge of the execution of the second mortgage, nor of the release of the part of the property described in the first mortgage. They obtained a decree of foreclosure against the property described in the first mortgage. Service of summons upon the owner of the property released was had by publication. By mistake of the attorneys this released property was not déscribed in the published notice. After the decree had been rendered the attorneys brought suit to correct the decree and modify it so as to omit the released premises and include that described in A’s second mortgage. In this proceeding the purchaser from A made a general appearance. The decree was modified as prayed. A appealed to the supreme court, where the action was dismissed on the motion of B, as having been instituted and carried on without his authority. B had knowledge of the existence of the second action, and did not disaffirm until informed of all the facts. While this second suit was pending B’s attorneys purchased of A’s grantee the property released from the first mortgage at about one-eighth of its value, and had the deed made to another in trust for them. Soon afterwards they sold the land for its value and retained the proceeds, the purchaser having constructive knowledge of all the proceedings. In an action by this purchaser to enjoin the sale of the land under the decree, and for the purpose of having the real estate of A included in the second mortgage sold first, it was Held, That as between such purchaser and A he was entitled to have the property conveyed by A’s second mortgage sold first, but that after such sale, if any deficiency existed, the land purchased by him should be sold to satisfy the same.</p>

<p>1. Verdict Sustained. For reasons set out at length in the opinion, Held, That there was evidence before the jury to sustain their verdict.</p> <p>2. Witnesses: impeachment. Before a witness can be contradicted by showing by the oath of another witness that he has made statements out of court inconsistent with his testimony, he must be interrogated as to whether he has made such statements, and his attention called to the time and place of making them, and to whom made.</p> <p>3.Evidence: admission's. The statements or admissions of a party to a suit can be proved against him only when such statements or admissions are so connected with the main transactions involved in the litigation as to be material to the issue or issues in the case.</p>

<p>Appeal from the district court of Seward county. Heard below before Noryal, J.</p> <p>cited: Prout v. Wiley, 28 Mich., 167.' Irvine v. Irvine, 9 Wall., 617.</p> <p>cited: 1 Broom & Hadley’s Com., § 524, and cases cited. Bing-ham on Infancy, 65. Iones v. Jones, 46 Iowa, 466. Prowl v. Wiley, 28 Mich., 164. Wamsley v. Orooh, 3 Neb., 352.</p>

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

<p>Municipal Corporations: officers: salary of clerk. Where at the tíme of the election of the clerk of a city of the second class no ordinance had been passed fixing his salary, an ordinance passed- during his term of office fixing his salary at $300 per annum is not within the inhibitions of the law that the compensation shall not be increased or diminished during his term of office. Pwreell v. Parks, 82 Ill., 346. Rucker v. Supervisors, 7 W. Va., 661, followed.</p>

ORIGINAL application for mandamus. cited: Code, §§ 588, •593. State v. Jaynes, 26 N. W. R., 711. cited: Ex 'aparte Thatcher, 2 Gilm., 168. Hannon v. Commissioners, ‘89 N. C., 123. Atherton v. Sherwood, 15 Minn., 251. State v. Sheldon, 10 Neb., 453. And claimed that remedy • was by quo warranto. People v. Olds, 3 Cal., 17. State, ■ex rel. Lytle, v. Douglas County, 18 Neb., 506.

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

<p>Contract: beeach. In an action on contract for damages for ■withdrawing certain cattle from the herd of the plaintiff during the herding season, -it being stipulated in the contract that plaintiff should not receive more than two hundred head of cattle in his herd, and it being admitted by the plaintiff on the stand as a witness in Ms own behalf, that when defendant's cattle were withdrawn from the herd there were 203 other cattle in the herd; and it also appearing from the evidence that plaintiff’s herd ground was scant and probably deficient; Held, Error on the part of the court to refuse an instruction giving a fair expression of the law as to the right of the defendant to remove his cattle under such state of facts.</p>

<p>Eeeoe to the district court for Fillmore county. Tried below before Moeeis, J.</p> <p>cited: Spurgeon v. Clemmons, 6 Neb., 307. Yowng v. Makepeace, 103 Mass., 53. Altschuler v. Algaza, 16 Neb., 631. McCoy v. People, 65 Ill., 439. State v. Mead, 45 Iowa, 469. Zweifel v. State, 27 Wis., 396.</p> <p>cited: 1 Green-leaf Evidence, 514, 515. Euffies v. State, 7 Wis., 567. Eddy v. Gray, 4 Allen, 435. Pauli v. Padelford, 16 Gray, 263. Commonwealth v. Moore, 3 Pick., 194.</p>

<p>Eeeoe to tbe district court for Dixon county. Tried below before Ceawfoed J.</p> <p>cited: 2 Greenleaf Ev.,, §§ 636, 640. Aultman v. Reams, 9 Neb., 487. Carlisle v. Kinney,''(Ah Barb., 363. Salt Springs Bank v. Wheeler, 48 N. Y., 495.</p> <p>cited: Benj. .'Sales, § 701. Kein v. Tupper, 52 N. Y., 550. Parson’s Mercantile Law, 42, note 1.</p>

<p>Error to the district court for Dixon county. Tried below before Crawford, J.</p> <p>cited: Hanlon v. Wilson, 10 Neb., 138- McCormick v„ Drummett, 9 Neb., 384. Friedhoff v. Smith, 13 Neb., 6. Rickards v. Cunningham, 10 Neb., 417.</p> <p>cited: Morrissey v. Kinney, 16 Neb., 17. McDonnell v. Dodge, 10 Wis., 92. Wallingford v. Burr, 15 Neb., 204.</p>

<p>1. Mandamus; demurrer. "Where it is sought to test the sufficiency of a petition for a mandamus, the proper course is to-demur to the petition upon the ground that the facts stated therein do not entitle the relator to the relief sought.</p> <p>2. -: -. Motion to quash for insufficiency, Held, To he a demurrer.</p> <p>3. -: power of railroad commission-. The act of the legislature creating the railway commission, which took effect June 6th, 1885, gives such commission general supervision of all railroads operated hy steam in this state, and requires them, among other things, upon a proper complaint being filed, to investigate the necessity for any addition or change of station houses or stations. A party, 'therefore, who requires the change, addition, or erection of a station, must secure the action of the commission before this court will grant a mandamus to compel a location. The case of State v. B. V. B. B. Co., 17 Neb., 647, was institute, d before the act creating the railroad commission took effect. •</p>

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

<p>1. Evidence: PRESUMPTIONS. It is á rale of law that every presumption is in favor of the correctness of the decisions of courts of general jurisdiction until the contrary isanade affirmatively to appear.</p> <p>2. Administration of Estates: CONFIRMATION or sale. In proceedings for the confirmation of a sale made by an administrator upon a license previously granted it is the duty of the court to confirm the sale and order the execution of conveyances to the purchaser, if it appears that the sale was legally made and fairly conducted, and that the sum hid was not disproportionate to the value of the property. Sec. 88, chap. 23, Comp. Stats.</p> <p>3. -: WAIVER BY ADMINISTRATOR. When an administrator makes application for a license to sell real estate, and a sale is awarded to the extent of an undivided seven-eighths interest, and he accepts such order as final and proceeds to sell the seven-eighths, reports the sale, and procures a confirmation thereof hy the district court, he thereby waives his right to have the order reviewed hy proceedings in error.</p>

<p>Eeeoe to tbe district court for Lancaster county. Tried ■below before Poutstd, J.</p>

<p>1. Schools: TEACHER’S CERTIFICATE GOOD IN ANOTHER COUNTY. ■Where the county superintendent issues a certificate authorizing the person named therein to teach school in such county, the county superintendent of any other county may endorse such certificate, which will render the certificate valid in the county where endorsed for such time as the superintendent shall determine, not to exceed two years nor longer than the certificate was originally intended.</p> <p>2. -: CERTIFICATE CANNOT BE ATTACHED COLLATERALLY. A certificate being issued or endorsement made thereon by the officer specially authorized to make the same, it is presumed to he valid; and in the absence of fraud is not subject to attack collaterally.</p> <p>3.-: REFUSAL OF TREASURER TO PAT TEACHER’S WAGES. Where a teacher when employed by the director and moderator of a school district, and while teaching snch school, possessed a certificate dnly endorsed by the county superintendent, Held,, That the treasurer of the district, in the absence of fraud, could not refuse to pay a warrant drawn by the director and moderator for the teacher’s wages, upon the ground that the endorsement was invalid.</p>

<p>INFORMATION by quo warranto.</p>

<p>1. Wager: demand prom stakeholder. Where a wager is illegal either party may claim the money deposited hy him, from the stakeholder, even after the wager is decided against such party, provided the demand is made before the money is actually paid to the winner.</p> <p>2. -. If the money was actually paid hy the stakeholder to the winner before notice or demand of the loser he will he exonerated.</p> <p>3. -: criminal law. Section 214 of the criminal code does not apply to a mere stakeholder who has taken no part in the illegal transaction.</p>

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

<p>1. Husband and‘Wife. In a case involving transactions between husband and wife in relation to her separate estate, inherited from her father, the same principles of law apply as are applicable to dealings between strangers; but where the effect of sneh dealings is to deprive creditors of their opportunity to subject the property of the husband to the payment of their claims, the facts involved in such transactions will be viewed with suspicion, and proof of their lona fides required.</p> <p>2. Instructions considered, and Held, Properly given and refused.</p> <p>3. Witnesses. A witness who has taken memoranda of facts, at or about the time of their occurrence, and who knows that such memoranda is correct, may hold such memoranda in his hand and testify to the facts, as facts, although he at the time admits that, even with the aid of the memoranda, he does not remember the occurrence of the facts.</p> <p>4. .Evidence: bepobteb’s notes. The report of the short-hand reporter of a district court of the testimony of a witness examined in such court is not admissible as evidence in a future action between the same parties, as documentary or independent evidence.</p>

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

<p>EREOE to the district court for Adams county. Tried ''below before Moeeis, J.</p>

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

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

<p>1. Bill of Exceptions. Affidavits used as evidence upon the hearing of a motion in the district court will not he considered in the supreme court unless preserved as a part of the record by a bill of exceptions, and when such papers are improperly attached to the record they will, upon motion, be stricken from the files. Graves v. Scoville, 17 Neb., 593.</p> <p>2. Appeal: nonsuit. Where an appeal is taken to the district court from the judgment of a justice of the peace, and the plaintiff fails to prosecute his appeal by filing his petition within the time required by law, and no excuse is shown which would justify the delay, it is not error for the district court, on motion and notice to the plaintiff, to nonsuit the plaintiff and render judgment as provided in sections 1010-11 of the civil code.</p> <p>3. Motion: PRACTICE. When a motion is argued and submitted to a court for a decision thereon, it is the duty of the court to decide the same upon the record as it existed at that time, unless the submission is set aside or it is brought to the knowledge of the court that a party desires to be heard upon a different condition of the record. Any papers filed after the submission without leave of the court or the knowledge of the judge will not be considered in reviewing such decision.</p>

<p>Landlord and Tenant. A leased certain real estate to B for the* term of two years, B agreeing to pay therefor the sum of nine hundred, and sixty dollars in installments of forty dollars on the-first day of each month during the term, which extended from January 1st, 1S80, to January 1st, 1882. The lease was in writ- ■ ing. On the -12th of October, 1880, the lessee, for value, and with. the consent of the lessor, transferred his lease by parol to C' who took possession thereunder and held until the 9th of March,. 1881, paying rent to A according to the terms of the lease, whem he vacated and refused to pay rent for the remainder of the year and term; Held, C was liable for the rent whether he occu- , pied the premises or not.</p>

<p>1. Sale: waeeanty: damages. In an action for damages for a breach of warranty or fraudulent representations as to the quality of personal property sold, where there is no rescission of the contract, the measure of damages is the difference between the value of the property as it actually was and what would have been its value had it been as represented at the time the representation or warranty was made.</p> <p>2. Allegata et Probata. The allegations of the petition and the proof must agree.</p>

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

<p>Chattel Mortgage: descbiption of pbopebty: futube peo-dtjcts. A chattel mortgage executed, delivered, and properly-recorded, March 30,1882, and purporting to convey “ one sorrel mule seven years old, one brown mule six years old, * * forty acres of wheat, thirty acres of oats, now growing, seventy-five acres of corn, to be planted, fifty acres of broom-corn, to be planted, tended, and delivered in Juniata. The above described chattels are now in my possession, on section 1, town 7, range 11 W., Adams county, Nebraska, and are owned by me, and free from all incumbrance in all respects;” Held, To convey no title to or lien upon the crop or field of corn raised by the mortgagor on the section of land above described, and levied upon as tlje property of said mortgagor Nov. 25,1882, as against a judgment creditor of said mortgagor.</p>

<p>1. Principal and Agent: acts or agents b.inding: evidence. . In an action against a third person on a simple non-negotiable contract, it being alleged in the petition that one of the parties to the contract acted as the agent of the defendant in making said contract, although he did not sign the same as agent or name the defendant as his principal, evidence will he received to show that such nominal party to the contract was authorized to make the same for the defendant, that he in fact did make the same for him, and upon such proof the defendant will he held.</p> <p>2.-: neootiable INSTRUMENTS. No party can he charged . as principal upon a negotiable note or bill of exchange unless his name is thereon disclosed.</p> <p>3. --: bank officers. An exception to this rule arises in a case where officers or clerks in hanking houses, or other persons who are permitted to act as such, receive money or securities over the hank counter and issue therefor drafts, hills, or negotiable certificates of deposit. In all such cases the hanking house is ultimately liable, although such draft, hill,or certificate may he signed by such officer, clerk, or person without disclosing the name of the hanking house.</p>

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

<p>ORIGINAL application for injunction in proceedings relating to the revenue.</p>

<p>’ 1. Municipal Corporations: occupation tax. While cities of the second class having more than five thousand inhabitants have authority to impose a tax on any occupation or business within the limits of the city, yet such ordinances must he so framed as to make such taxes uniform in respect to the classes upon which they are imposed; and such taxes must he reasonable, considering the nature of the business, and not so'high as to prohibit the carrying on of the business.</p> <p>2. -: -. The power to impose taxes is derived alone from the statute, and must be expressly conferred or be necessarily implied.</p> <p>3. -: RECOVERY OE TAXES PAID UNDER PROTEST. The right to recover under the statute illegal taxes paid under protest,. Held, Applicable to a business tax collected under a void ordinance.</p>

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

<p>Error to the district court for York county. Tried below before Nor val, J.</p>

<p>ERROR to the district court for Hitchcock county.</p>

<p>1. Divorce: modifying decbee. An application to modify a decree of divorce is a special proceeding within the meaning of section 581 of the civil code, and an order made therein affecting a substantial right may he reviewed on error. In such case it is not necessary to a review that the order complained of terminates the action or prevents a judgment.</p> <p>2. -: alimony. In such case, where the divorced wife seeks a modification of the decree for alimony, alleging that the decree was obtained by the fraud of the husband and his agents, the district court has authority to require the husband to pay into court a reasonable sum of money, to enable her to prosecute her action.</p>

<p>1. Justice of Peace: setting aside judgment. The order of a justice of the peace, or a county judge in the exercise of the same powers and jurisdiction, in setting aside a judgment rendered in the absence of a defendant, when made under the provisions of section 1001 of the civil code, should be made conditionally only in the first instance, and cannot be finally made unless tbe conditions of the section are complied ■with by the party seeking to open the judgment. If notice isnot given to the plaintiff, as required, the application should be overruled and the original judgment be allowed to stand. The giving of the notice is j uris-dictional.</p> <p>2. -: APPEARANCE: waiver. An application to set aside a judgment under the provisions of section 1001 of the civil code, is a recognition of the regularity of the judgment and a waiver of any objection that the judgment was prematurely rendered.</p> <p>■3.' -: error: review in supreme court. "Where a judgment of a justice of the peace ot county judge is taken on error to the district court and reversed, and the original case retained for trial in that court, such judgment of reversal is a final judgment and may be reviewed by the supreme court without waiting for the final disposition of the original case in the district court. Banks v. Uhl, 5 Neb., 240.</p>

ORIGINAL information by the attorney general, alleging unofficial conduct of respondent as an attorney at law. cited: Ex parte Burr, 9 Wheaton, 530. Ex parte Garland, 4 Wall., 378. Ex parte Robinson, 19 Wall., 512. Dickinson v. Dustin, 21 Mich., 561. People v. Harvey, 41 Ill., 277. Ex parte Tillinghast, 4 Peters, 108.

<p>1. Trial: excluding evidence: eReoe without pbejudice. Where an objection to a question is sustained and the testimony-excluded, if the witness is afterwards recalled and fully examined upon the matters presented by the former interrogatories the ruling of the court in sustaining the objection, even if erroneous, will not be sufficient cause for reversing a judgment unless it should affirmatively appear that the prisoner was prejudiced thereby.</p> <p>2. Witnesses: expeets. Hypothetical questions to experts must be framed so as to fairly reflect facts either admitted or proved by other witnesses and must not assume as proven that which has not been, nor should they be based upon conclusions of fact which can only be found by a jury.</p> <p>3. Criminal Law: teial: witnesses eoe the state. In the trial of a criminal prosecution wherein a defendant is arraigned upon an indictment found by a grand jury, the state is not precluded from the examination of witnesses whose names are not endorsed upon the indictment.</p> <p>4. Evidence: statements op pbisoneb. It is not error to allow an officer who arrested a defendant to testify as to statements made by such defendant while in custody, if it be shown that such statements were made voluntarily and without any induce-mente — of hope or fear — being made or offered by such officer or other person.</p> <p>5. Instructions: clerical mistake of clerk ikt copying. A clerical mistake of the clerk of a trial court in copying an instruction into the transcript will not be sufficient cause for reversing a judgment if it affirmatively appears by the phraseology of the instruction what its original language was, and that such instruction, being upon an immaterial matter, could work no prejudice to the party on trial even if correctly copied.</p> <p>6. -. The charge of the court to a trial jury should be a clear and explicit statement of the law applicable to the facte in the case.</p> <p>7. Criminal Law: insanity as a defense. Where in a criminal case the accused relies upon insanity as a defense, and there is testimony tending to prove such insanity, the burden of proof is on the prosecution to show sanity. Wright v. The People, 4 Neb., 407.</p> <p>8. Instructions to Jury. If one of the paragraphs in the charge of the court to the jury misstates the law upon amaterial point, such error will not be cured by another paragraph which states the law correctly, because the jury would be left in doubt as to which paragraph was correct. Wasson v. Palmer, 13 Neb., 376.</p> <p>9.-. Instructions to a jury must be based upon the evidence adduced on the trial.</p>

<p>Railroads: negligence during construction. A railroad company which has entered into an agreement with a contractor to build a portion, of its railroad, and whose locomotives, cars, etc., used in such construction, are run exclusively under the direction and control of the contractor, will not be liable for damages occasioned prior to the completion of the road, by reason of the negligence of the persons running such locomo- , tives and cars.</p>

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

<p>Taxes: SALE: eoeeclosuee of lien. K. and G-. were the owners of a certain city lot with a brick building thereon, except that two front feet of said lot extending the whole length thereof were owned in severalty by S. No taxes were paid on said lot; it went to sale for delinquent taxes. Not being sold for want of , other bidders, it was bid in by the county commissioners, who assigned the certificate of sale to S. K. and Gr. became bankrupt; at a public; sale of their estate said lot was bought by T. In a proceeding in equity in the nature of a proceeding in rem. by S. to foreclose the lien for twenty-three twenty-fifths of said taxes upon the south twenty-three feet of said lot, T. answering and defending, Held, That S. was entitled toa judgment of foreclosure, and to ten per cent on the amount found, as an attorney’s fees.</p>

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

<p>1. Or4minal Law:• NRW TRIAL. The grounds upon which a new trial may be granted in a criminal case are prescribed by statute and the motion therefor must be filed at the term at which the verdict is rendered, and, except for newly discovered evidence, within three days after the verdict was rendered, unless unavoidably prevented.</p> <p>2. . One B. was convicted of murder in the second degree and sentenced to imprisonment for life. More than two years after the judgment was rendered he filed a motion for a new trial in the district court where he was tried upon the ground of newly discovered evidence, and supported the motion by affidavits. The district court dismissed the proceedings. Held, 1~ot erroneous.</p>

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

<p>1. Conveyance: Riling deed: notice. Under section 19, chapter 43, of the Revised Statutes of 1866, a deed when filed for record in the county clerk’s office and duly entered in the index, was constructive notice to all the world of the rights of the grantee conferred hy such instrument.</p> <p>2. -: quit claim deed: defective RECORD. Where the grantor in a quit claim deed had previously conveyed the real estate, which deed had been properly entered on the index, hut defectively recorded, and it did not appear that the second grantee was a purchaser in good faith for a valuable consideration and without notice, Held, That the second purchaser was not entitled to protection.</p> <p>3. ' —-: -: title: boha RIDE PURCHASES. A party who claims title under a quit claim deed 'from a grantor who had previously conveyed all his right, title, and interest in the real estate to another, and the effect of the second deed, if sustained, will he to deprive the first grantee of his title, must make a clear case of bonafides on his part before his deed will he sustained.</p>

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

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

<p>1. Judgment: men. A judgment was Tendered in the county court of J. county, arid a transcript thereof filed in the district court of said county, and a duly certified transcript from the district court of J. county was filed in the district court of T. county Feb. 19, 1876. In January, 1878, the debtor and his wife conveyed their real estate in T. county to one S., the deed being acknowledged and recorded May 6th, 1878. Held, That the real estate was subject to the lien of the judgment.</p> <p>2. Judicial Sale: confirmation: deed. A purchaser at execution sale of real estate, upon the payment of the purchase money and confirmation of the sale, becomes the equitable owner of the property, and in a proper case may compel the issuing of a sheriff's deed to himself.</p> <p>3. -: deed. Imperfect recitals in a sheriff's deed of the facts required by section 500 of the code do not render the deed void.</p> <p>4. -: -. The power of the court to compel the issuing of a proper deed to a purchaser at execution sale is a continuing one, and is not exhausted by the issue of a defective deed.</p> <p>5. -: -: A sheriff's deed for lands sold upon execution relates back to the time such lands become liable to the satisfaction of the judgment.</p>

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

<p>Ereoe to the district court for Gage county. Heard below before Beoady, J.</p>

<p>Costs in Mandamus Cases. Judgments for costs in mandamus cases can only be collected by execution in the same way as other judgments. A respondent failing to pay such judgment is not in contempt and cannot be proceeded against therefor.</p>

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

<p>Furthep consideration of case reported in .17 Neb., 478.</p>

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

<p>1. Res Adjudieata. Matters that have been adjudicated in a former suit will not he considered in a second action.</p> <p>2. Husband and wife: mobtg-age: oonsidekation. Where at the time of the execution of a promissory note by the husband he agreed that his wife should execute a mortgage on eer-tain real estate possessed by her to secure the same, which mortgage a few days afterwards was duly executed and acknowledged, and by reason of which the credit on the note was extended two years, Held, That there was a sufficient consideration for the mortgage.</p> <p>3. Purchaser pendente lite. Where a person purchases real estate while an action is pending to subject the property to the payment of a certain debt, the purchaser is chargeable with notice of the claim, and whatever the form of the decree under the issue made by the pleadings, takes subject to the same.</p>

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

<p>1. Petition: demtjkheb. A demurrer to a petition will not lie for a misjoinder of parties plaintiff.</p> <p>2. Specific Performance: pasties. Where the owners of tw® adj oining tracts of land made a joint proposition to sell said land to D. county for a poor farm, which proposition was accepted, Held, That such owners could join in an action to enforce said contract.</p> <p>3. -: -: action against county. Where a board of county commissioners, in pursuance of lawful authority, invite and accept bids for a poor farm, to be paid for out of funds in the treasury for that purpose, the vendors may enforce specific performance of such contract against the county.</p>

<p>1. Public Lands of United States:' subvby: evidence. In the surveys of the public lands of the United States, the meander lines are generally considered as following the windings of streams; but the question whether they do so or not is a question of fact to be determined by evidence aliunde.</p> <p>2. -: MEANDER LINES ALONG- RIVERS. Where there is a strip of tand between the hack of the river and the meander line, an entry of government land hounded hy the meander line will not include such strip.</p> <p>3. -: -: ACCRETIONS. Where lands had formerly extended to the meander line and the testimony showed that there had been % change in the channel of a river of about three-fourths of a mile, hut no accretion to the plaintiffs’ land, Reid, That the boundaries of his land did not extend to the new channel nor beyond the meander line.</p>

<p>2. Rape. In a prosecution for an assault with intent to commit a rape, an instruction that ‘ ‘ there must he an assault and also an accompanying intent, and this intent may he gathered or inferred from cmy circumstances attending the commission of the alleged crime tending in any manner to show such intent in the mind of the defendant at the time,” is erroneous.</p> <p>% -: EVIDENCE. To warrant a conviction in such case, the circumstances when taken together must he of so conclusive a nature as to show the intent heyond a reasonable doubt.</p>

<p>Mechanic’s Lien: case stated. A lumber dealer was furnishing lumber for the erection of a building in the course of erection under contract; the contractor applied at the lumber yard for certain pieces of lumber, stating that the immediate purpose for which he wanted them was to prop up the brick walls; that he might use them in the erection of the building; that if he did not use them in the building he would return them; that if he did use them he would notify the lumberman, so that he might charge them up; four days after the delivery of the last material for said building by the lumber dealer other than the pieces of lumber in question the contractor applied at the office of the dealer, told him that he had used the said pieces of lumber in the building, and to charge them up. Held, That for the purposes of the mechanic’s lien law the said piebes of lumber were furnished at the date of the notification of the lumber dealer by the contractor; that he had used them in the building, and to charge them up.</p>

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