Volume 20 — Nebraska Reports

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

<p>Cities of Second Class: vacancy in office or police judge. In 1881, N. City was a city of the second class, having not less than fifteen hundred inhabitants. In that year W. was elected police judge of that city and was re-elected in 1883 and 1885, and qualified, and has continuously performed the duties of the office. In 1886, N. City was declared a city of the second class, having not less than five thousand inhabitants, and S. was elected police judge thereof, and thereupon brought an action to oust the incumbent from that position and to be installed therein; Held, There being no provision in the statute declaring the ofilce of police judge vacant, that the mere change from a city of the second class of the minimum number of fifteen hundred to a city of the secondAlass of not less than five thousand inhabitants did not vacate the office of police judge, the duties in each case being substantially the same.</p>

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

<p>Petition upon an undertaking for appeal examined and held'sufficient.</p>

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

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

<p>Practice in Supreme Court, Decree modified to correspond with the special findings of fact by the trial conrt.</p>

<p>Verdict: INSTRUCTIONS. Where the verdict is the only one that should have been returned by the jury under the evidence, it -will not be set aside, notwithstanding the court may have given .an instruction upon a matter not in issue in the case.</p>

<p>1. Trial: EVIDENCE INSUFFICIENT TO SUSTAIN FINDING. Where, upon the trial of a cause, facts are proved on the part of the plaintiff by parol testimony within the pleadings, sufficient to establish the plaintiff’s cas e prima facie, and none of such testimony being contradicted, the defendant proves by record evidence, also within the pleadings, such facts as establish a complete defense, such evidence taken together will not sustain a finding for the. plaintiff.</p> <p>2. Recognizance. A recognizance for the appearance of an accused person to answer to an indictment for felony, taken before and approved by an officer or person unauthorized by law, or where under the facts of the case the taking thereof is unauthorized by law, so that the same fails to be binding under the statute, Held, Also to be void as a common law obligation.</p>

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

<p>Quo warranto to test the right of respondent to exercise the office of register of deeds in Cass county.</p>

<p>Appeal: limitations as to time. In actions in equity either party may appeal from the judgment or decree rendered or final order made by the district court to the supreme court. In order to do so the party appealing shall, within six months after the date of the rendition of the judgment or decree, procure from the cleric of the district court, and file in the office of the .cleric of the supreme court, a certified transcript of the proceedings had in the cause in the district court.</p> <p>-: -. The time within which to perfect such appeal begins to run at the date of the rendition of the judgment or decree, which is the date on which the court formally announces its conclusion and judgment, and not the date on which the clerk in vacation enters the judgment on the journal bearing the date of the annunciation by the court.</p>

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

<p>1. Covenant, warranty: pleading and proof. In an action on a warranty deed for a breach of the covenant for quiet enjoyment, the plaintiff must allege and prove that he has been turned out of the possession of the granted premises, or of some-part thereof, or has yielded the possession thereof to the paramount title.</p> <p>2. A Motion for a Hew Trial must be made in the terms substantially in which it may be allowed, within the rules of law, or it will he denied.</p> <p>3. Covenant. The covenant for title, or of seizin, is an assurance-to the purchaser that the grantor has the very estate, in quantity and quality, which he purports to convey. If he has not such title, his covenant is broken immediately upon its being made.</p>

<p>Elections: canvassing vote. Where the election returns ini due form are made by the judges and clerks of an election, and the poll book so returned shows the entire number of votes cast at the election, and the tally sheet the number cast for a particular candidate, it is the duty of the board of canvassers to canvass the votes so returned, and to correct any error of the election hoard, apparent on the face of the returns, in adding up the votes cast for a candidate.</p>

Tried below before Broad y,- J. The benefit of the statute of limitations may be waived, and will be, unless pleaded. Taylor v. Courtnay, 15 Neb., 196. Atchison & N. JR. Co. v. Miller, 16 Neb., 664. A mortgage foreclosure is not barred after the lapse of five years from the time the cause of action accrued. Hale v. Christy, 8 Neb., 264. Stevenson v. Craig, 12 Neb. 464. Cheney v. Cooper, 14 Neb., 415. Herdman v. Marshall, 17 Neb., 259.

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

Heard below before Beoady, J. To establish usury in a loan made by an agent it must appear that the agent charged more than the legal rate, and that the principal authorized such unlawful charge, or in some way knowingly got some benefit from it. Call v. Palmer, 6 Sup. Ct. Rep., 301, affirming Palmer v. Call, 1 Fed. Rep., 737. Bingham v. Myers, 1 N. W. Rep., 613. Jordan v. Humphrey, 18 N. W. Rep., 450. Ballinger y. Bawrlancl, 87 111., 513. Boylston v. Bain, 90 111., 285.

Tried be- ' low before Broady, J. . ■ 1. When distinct offenses are charged in seperate counts of an indictment, the jury must either return a general verdict,.or else respond to each charge in their finding; especially where -the offenses • charged áre made separate and distinct by statute, and subject to different degrees of punishment. Hurley v. State, 6 Ohio, 404. Wilson State, 20 Ohio, 26. Buch v. State, 1 Ohio St., 61., Riflemaher v. State, 25 Ohio St., 395.

Heard below before Bkoady, J. The facts were as follows: At the general election in April, 1885, the defendants were elected mayor, councilmen, etc., of the city of Beatrice, Nebraska.

<p>1. Pleading: answer: general denial. An answer, consisting of a general denial of each and every allegation in the petition, places in issue all the allegations contained therein. • Donovan v. Fowler, 17 Neb., 247.</p> <p>2. -: -: mechanic’s lien. In an action to foreclose a mechanic’s lien on.real estate for material furnished in the construction of a building thereon, an answer consisting of a general denial is a denial of the allegations of-the sale of the material for the purpose alleged, and of the ownership of the real estate upon which the lien is sought to be established, and the burden of proof is upon the plaintiff to prove all facts necessary to the existence of such lien.</p>

Motion to correct mandate, etc., in case reported 18 Neb., 121. 1. A court of equity will not issue an injunction to restrain the execution of its own decree. McReynolds v. Ilarshaw, 2 Ired. Eq., 196. Rickett v. Johnson, 8 Cal., 34. Gorhamv. Toomey, 9 Cal., 77. Platto v. Deuster, 22 Wis., 482. Payton v. Rdf, 34 Wis., 86. Endter v. Lennon, 46 Wis., 299. 2. Where there is a statutory remedy for correcting a decree obtained by fraud such remedy is exclusive.

<p>1. The Evidence examined and Held to sustain the verdict.</p> <p>2. Trial: conduct of attorney. Where it is alleged that an attorney in the argument of a cause on trial to a jury made misstatements of the evidence, and went outside of therecord in his statements of the facts proved on the trial, the attention of the court should he called to the language and conduct of the attorney by the proper objection, and a ruling had thereon by the court. If the objection is overruled and an exception taken, the question may he reviewed in the supreme court, upon the language, objection, ruling, and exception being made a part of the record by the proper bill of exceptions, but not otherwise. Bradshaw v. The State, 17 Neb., 147. The case of The Cleveland Paper Co. v. Banks, 15 Neb., 20, examined and distinguished.</p>

<p>1. Township Organization. The question of adopting township organization was submitted to the legal voters of R. county at the.general election in 1883, and was adopted by a majority of the legal voters of said county voting at said election, but no organization of the board of supervisors has yet taken place. Held, That township organization is in force in R. county, to be complete upon the organization of the board of supervisors as provided by law.</p> <p>3. —1-: discontinuance. An election to discontinue township organization, unless authorized by statute, is of no avail, and votes cast thereat are nullities.</p> <p>3. -: change or county government. In a county which has adopted township organization, the board of county commissioners continue t<? act until the board of supervisors has met and organized.</p>

Heard below before Beoady, J. An attorney cannot prove his authority to appear for a party by a letter from a third party, even though an • attorney, asking him to .appear. Westbrook v. Blood, 50 Mich., 443; S. C., 15 N. W. Rep., 544. The burden of proof is on the attorney to show that he was authorized to appear. State Bank v. Green, 8 Neb., 307; S. C., 1 N. W. Rep., 210. Where a.plaintiff has not authorized the institution of a suit, the entire proceedings are void.

<p>Error to the district court for Cass county.</p>

Broady, J. A gift by a debtor to his son, prior to insolvency, is not fraudulent as to subsequent creditors. Plinde’s Lessee v. Longworih, 11 Wheat., 200. Sexton v. Wheaton, 8 Wheat., 229. It will be considered as an advancement. Vanzant v. Davies, 6 Ohio St., 52. Infancy cannot be used as a protection for fraud. Tyler, Inf. & Cov., p. 140, § 94. Elliott v. Horn, 10 Ala., 848, 353.

<p>Appeal from the district court of Otoe county. Tried below before Hayward, J. •</p>

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

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

<p>Error to the district court for Otoe county. Tried below before Hayward, J.</p> <p>cited: Nason v. Best. 17 Kan., 408. Grant v. Marshall, 12 Neb., 488.</p> <p>cited: Sedgwick & Wait, Trial of Little, §§ 401-403. Wade on Notice, §§ 636-638. Miller v. Hurford, 13 Neb., 23.</p>

<p>Error to the district court for Otoe county. Tried below before Hayward, J.</p> <p>cited: Horton v. Green, 66 North Carolina, 596. Tewkesbury v. Bennett, 31 Iowa, 83. Baker v. Henderson, 24 Wis., 509.</p>

Tried before Mitchell, J. • 1. The construction and -interpretation of a power of attorney is strictly confined to the express authority given therein. Martindale’s Conveyancing, sec. 235. Brantley v. Southern Ins. Co., 53 Alabama, 554. Force v. Dutcher, 18 New Jersey Equity, 401. 2. The certificate of purchase or payment of tax in jtself conveyed no estate. Cooley’s Taxation, ed. 1879, pp. 352, 353,and 454. Tilson v. Thompson, 10 Pickering, 359. Alexander v. Bush, 46 Pa.

<p>Error to the district court for Lancaster county. Tried below before Pound, J.</p> <p>cited: Miliani v. Tognini, 7 Pac. Rep., 279. Lawrence v. Fox, 20 N. Y., 268. Vrooman v. Turner, 69 N. Y., 280. Garnsey v. Rodgers, 47 N. Y., 233. Cooper v. Foss, 15 Neb., 520.. Stewart v. Snetting, 15 Neb., 502. Bond v. Dolby, 17 Neb., 494. Carman v. Kelly, 5 Hun. (N. Y.), 283.</p> <p>cited: Tweddle v. Atkinson, 1 B. & S., 393. Halsted v. Francis, '31 Mich., 113. Exchange Bank v. Bice, 107 Mass., 37. Anderson v. Fitzgerald, 21 Fed. Rep., 294. Clapp v. Lawton, 31 Conn., 95. Garnsey v. Rogers 47 N. Y., 233. Lake Ontario Shore B. B. v. Curtiss, 80 N. Y., 223. Austin v. Seligman et al, 18 Fed. Rep., 519. Dow v. Clark, 7 Gray,, 198. Nat. Bank v. Gi'and Lodge, 98 U. S., 123. Merrill *• Green, 55 N. Y., 270. Bordee v. Treat, 82 N. Y., 385. Mackintosh v. Faiman, 38 How. Pr., 145.</p>

Tried below before Mitchell, J. It is contributory negligence for a person passing along a street to go upon a part of it which he knows or perceives to be dangerous. Moans v. Utica, 69 N. Y., 166. Belton v. Baxter, 54 Id., 245. Chicago v. Me Given, 78 111., 347. Coates v. Canaan, 51 Yt., 131. Wilson v. Charlestown, 8 Allen, 137. There was no contributory negligence. It was a question for a jury to determine whether a party injured exercised due care.

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

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

<p>Error to the district court for Lancaster county. Tried below before Mitchell, J.</p> <p>cited : Austin v. Cambridgeport, 21 Pick., 224. Stearns v. Harris, 8 Allen, 598. Dale v. Hunneman, 12 Neb., 221:</p>

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

<p>Covenant: eviction: pleadins and proof. In an action on warranty deed for a breach of the covenant for quiet enjoyment the plaintiff must allege and prove that he has been turned out' of the possession of the granted premises, or of some part thereof, or has yielded the possession thereof to the paramount title.</p>

<p>1.', Parties: transfer of plaintiff’s interest pendente lite. Where an action has been commenced the transfer by the plaintiff of his interest in the subject of the action to , another will not prevent the prosecution of the suit to its termination in the name of the original plaintiff.</p> <p>2. Railroads: eminent domain: mortgage on property taken. Where real estate — as a town lot — upon which there is a mortgage duly recorded is taken by a railroad company for right of way purposes in the exercise of its right of eminent domain, and the whole of the lot is taken, the condemnation money being paid to the mortgagor and holder of the legal title, in an action against such railroad company by the mortgagee to foreclose the mortgage, the question as to whether by the condemnation proceedings the railroad company acquired the fee to the property or an easement is not deemed material and is not decided. The whole of the property being taken, the effect upon the mortgagee’s security is the same.</p> <p>3. --: -: parties. Where a railroad company, in the exercise of its right of eminent domain, seeks to appropriate private property to its own use for the purpose of right of way, by condemnation and appraisement, all persons having an interest in tjie property, including mortgagees, should be made parties to the proceeding by proper notice, and if such company fail so to do, and pay the money to a person not entitled thereto, such proceeding and payment are void as to all persons not parties thereto.</p> <p>4. -: mortgage: payment of condemnation money. In case of such proceedings to condemn real estate upon which there is a mortgage of record, the condemnation money found due tho owner of the land should be applied first to the payment of the amount due upon the mortgage and the remainder to the holder of the legal title. In case such payment is not made or tendered to the mortgagee by proper notice of the proceeding, he is not affected thereby, and may foreclose his mortgage as against the railroad company by proper action.</p> <p>6. Mortgage: foreclosure: parties. The proceeding to foreclose a real estate mortgage is void as to all persons interested in the subject of the suit, who are not parties to the action. Therefore, if such persons are not made parties another action may he instituted either by or against them for the purpose of determining their rights. If against them it may he by the purchaser of the property sold under the first foreclosure.</p>

<p>Error to the district conrt for Douglas county. Tried • below before Neville J.</p> <p>cited: 1 Whart. Crim. Law, 711. Commonwealth v. Searle, 2 Binney, 332. People v. Pathbun, 21 Wend., 509. United States v. Carter, 2 Cranch C. C., 243. United States v. Mitchell, 1 Bald. ,366.</p>

Tried below before Hayward, J. The mere slipperiness of a sidewalk, occasioned by ice and snow, not accumulated so as to cause an obstruction, is not ordinarily such a defect as will make the city liable for damages occasioned thereby. Stanton v. Springfield, . 12 Allen, 566. Nason v. Boston, 14 Allen, 508. Cook v. Milwaukee, 24 Wis., 270. Ward v. Jefferson, Id., 342. Cook v. Milwaukee, 27 Wis., 191. Chicago v. Me Given, 78 111., 347, 1875.

<p>Replevin: gist on action. The action of replevin, or, as it is sometimes called, the action for the delivery of personal prop- • erty, is a statutory proceeding, in which the right of the plaintiff to the immediate possession of any of the chattels involved in , the suit, and their wrongful detention by the defendant, constitute the gist of the action. The pleadings, evidence, and judgment should be confined to these points, and questions necessary to their elucidation. °</p> <p>Note. — Gist of action is unlawful detention of property. Haggard v. Wallen. 6 Neb., 272. Moore v. Kepner, 7 Id., 294. Right of property and possession thereof only can be tried. Gillespie v. Brown & Byan Bros., 16 Neb., 462.' — -Rep.</p>

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

<p>Criminal Law: complaint by officer : security for costs. . Section 287 of the Criminal Code, yyMcIi authorizes magistrates to require a complainant, in a prosecution for a misdemeanor, to become liable and give security for costs, has no reference to prosecutions instituted by prosecuting officers when acting in the discharge of a duty imposed upon them by law ; and in such case, when a complaint is presented to a police judge of a city by the marshal, it is the duty of the police judge to issue his-warrant, and in case of a refusal, mandamus will lie to compel action.</p>

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

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

<p>Appeal from Douglas county district court. Heard belo w before Wake ley, J.</p>

<p>1. Appeal: failure to file abstract and brief. An appeal ■will not be dismissed for the mere failure of the appellant to file an abstract and brief within the time required by statute, unless it is apparent that the neglect is wilful, or that the appeal was not taken in good faith.</p> <p>2. -: LEAVE GIVEN TO APPELLANT TO FILE PETITION IN ERROR. Where the same relief can be given either by an appeal or proceedings in error, a transcript filed in the supreme court for an appeal, more than six months but less than one year from the rendition of the decree in the court below, will not be stricken from the files, but the appellant will have leave upon such terms as may be just to file a petition in error. On the failure.to comply with the order to file the petition in error, the appeal will be dismissed.</p> <p>3. Judgment: final order. An order before judgment dissolving a temporary injunction is not a final order and not appealable ; but an order overruling an application to set aside a default and for leave to answer maybe appealed or reviewed on error.</p>

<p>1. Pleading: partnership: firm; name,, An allegation in a hill of particulars “that they (the plaintiffs) are wholesale .dealers in furniture, and that their place of business is Lincoln, Nebraska,” is'sufficient under the statute to allow them to bring an action in the firm name.</p> <p>2. Attachment: affidavit by attorney. An affidavit for an attachment made by the attorney for the plaintiff, wherein he “ swears that he is the authorized attorney of the plaintiff in the above entitled action; that he has commenced an action,” etc., where it appears from the whole affidavit that the action was brought by the plaintiff, is not void.</p> <p>3. Practice: endorsement of papers. The failure to entitle the papers in a case, or to properly entitle them if it is apparent to what case they relate, is not sufficient to justify'the court in dismissing the action.</p>

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

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

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

<p>1. Taxes: sale: redemption. The failure of a tax purchaser to give notice to the owner or occupant of the real estate to redeem, at least three months before the time of redemption, expires, although fatal to the obtaining.of a tax deed, is not indispensible to enable the holder of the tax certificate to bring an action to foreclose the tax lien.</p> <p>2. -: -: costs. The failui’e to serve such notice may require the plaintiff to pay the costs where the owner or occupant comes forward and tenders the amount due at the time suit is brought.</p>

<p>1. Jurisdiction: confirmation of sale. Where a court of general jurisdiction has rendered judgment in a case under which the real estate of one of the defendants has been levied upon and sold, and the sale confirmed and a deed made to the purchaser, the court will not, upon slight evidence, after a great lapse of time, hold that it was without jurisdiction.</p> <p>2. Judicial Sale: amendment of officer’s return. The court, in furtherance of justice, may, after a sale of real estate upon execution, and a return of the officer, permit the officer to-amend the return to conform to the facts; and when it is clear that the amendment should be made, the lapse of eight or nine years will not bar the right; but in such case care must be exercised by the court to prevent an abuse of power.</p> <p>3. --. In this state the confirmation of the sale cures all irregularities in the proceedings.</p> <p>4. Trusts. Lands conveyed by a warranty deed are not subject to a secret trust in favor of the grantor; and particularly is this true where the lands are afterwards sold at judicial sale as the property of the grantee, and conveyed to an innocent purchaser.</p> <p>5. Iufancy. A minor who has conveyed his real estate must dis-affirm his deed within a reasonable time after he comes of age or be barred of the right.</p> <p>6. Limitation of Actions. The act of 1869, which reduced the period of limitation in which an action to recover real estate could be brought from twenty-one years to ten years, and gave , a reasonable time in which to -bring actions before it took effect, applies to causes of action existing before the passage of the statute.</p> <p>■ 7. Deeds: evidence. A deed of real estate, executed in another state before an officer having no seal, to be admissible in evidence must be certified in the manner provided in the statute.</p>

<p>Replevin: dismissal of action. An action of replevin was commenced, before a justice of the peace and a return made by the sheriff showing the value of the goods to be $821.44. The justice then prepared a transcript of the proceedings for the district court, but whether it was filed or not does not appear. Soon afterwards the plaintiff and defendant appeared before the justice and caused the following entry to be made on his docket: “ By agreement of both parties this suit is dismissed "and the .sheriff is ordered to return said goods to the defendant, from whose possession they were taken.” Held, That independently of the question of the jurisdiction of the justice, it was a valid agreement to dismiss the action, and that if the property was in possession of the sheriff it was his duty to return it to the party from whom he had taken it.</p>

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

<p>1. ITew Trial: discretion or court. Motion, for a new trial, whether the grounds therefor are that the verdict is against the weight of evidence, or for accident or surprise, newly-discovered evidence, or for a like cause, are addressed to the sound discretion of the court, and in such cases a decision of the district court in granting a new trial will not be reversed unless there . has been an abuse of such discretion.</p> <p>2. -: decision oe trial judge einal. Upon a motion to set aside the verdict of a jury in which questions of fact are involved, the court hearing the motion becomes the -judge of such ques>tions of fact and his decision thereon must be final unless clearly and manifestly wrong.</p> <p>3. Ba,stardy: evidence. Upon a trial in the district court in a proceeding under the provisions of the statute for the support and maintenance of illegitimate childrenj evidence that plaintiff has had intercourse with other men before the birth of the child, and clearly outside of the period of gestation, is immaterial to the issue and therefore inadmissible in evidence. Evidence of such intercourse is admissible only for the purpose of showing that another than the person charged is the father of the child.</p>

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

<p>1. Replevin: conspiracy and fraud: evidence. The defense in an action of replevin being founded upon an alleged conspiracy between B., the agent of the plaintiff, and R., the maker of the chattel mortgage under which plaintiff claims, to defraud the creditors of R., by means of the making, delivery, and foreclosing of said mortgage, and said B. having been called as a witness by the plaintiff, and being under cross-examination by defendant’s counsel, and having stated, in reply to a question put by counsel, that he went to board with R. shortly after the execution of the mortgage, Held, Error on the part of the court to refuse to allow R. to state, in reply to a question put by plaintiff’s counsel, how he came to go to the house of R. to board.</p> <p>2. -: right of possession: evidence. The question being confined to that of the right to the possession of the property at the date of the commencement of the action, evidence offered by the plaintiff to prove that at the sale of the property on foreclosure of the mortgage some time after the replevin of the same, he used diligence to procure bidders from abroad, and to sell the property at the best price, Held, Properly refused.</p> <p>3. -: frauds: instructions to jury. There being no evidence of a fraudulent intent on the part of R. in executing the chattel mortgage under which plaintiff claims the goods in question, Held, Error on the part of the court to change, alter, and modify the several instructions offered by plaintiff, and set out in full in the opinion, by adding thereto the words, “ or unless he (the plaintiff) had notice of such facts as would lead a man of ordinary prudence and diligence to a knowledge of such fraudulent intent on the part of R.”</p> <p>4. Trial: evidence. There being no evidence before the court that any witness had sworn falsely, but the main witness for the plaintiff, before his final dismissal as such witness, having asked leave to make a correction and retraction of a part of his testimony, Held, Error on the part of the court to give in charge to the jury the maxim Falsus in uno, falsus in omnibus.</p> <p>5. -: issues. Upon the evidence, Held, Error on the part of the court to submit to the jury for their special finding the question whether ‘ ‘ the mortgage of plaintiff is fraudulent and void as against defendant.”</p>

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

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

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

<p>Practice in Supreme Court: correction op mandate. An action against a non-resident defendant was instituted in the •district court, the purpose of which was to set aside a treasurer’s tax deed. Service of summons was made by publication, and no appearance being made by defendant, a decree was rendered as prayed. Within five years after the decree the defendant appeared and, under the provisions of section eighty-two of the civil code, sought to' set aside the decree and make‘his defense. Notice of his motion was- served upon the attorney, of.'reeord of the plaintiff in the original action. This service .was quashed ,by the district court for the reason that it was not served upon • plaintiff personally. ' -Upon review by' the' supreme court, the decision of the district court was reversed and the cause remanded, with directions to said court to “reinstate the cause and try the issues presented by the answer of said Merriam, and proceed to final judgment in said cause according to law. ’ ’ Upon the return of the cause to the district court, plaintiff filed “ counter affidavits ” tending to prove that the defendant had actual knowledge of the pendency of the action in .time to have made his defense. Defendant moved to strike these from the files, assigning as the basis of his motion the direction of the supreme court as evidenced by the mandate. Pending this motion plaintiff, by motion, called attention of the supreme court to the irregularity of the mandate in its directions to the district court to “ try the issues, ” etc., instead of the usual form, ‘ ‘ to proceed with the case according to law ’ ’; whereupon it was ordered that the mandate be corrected accordingly. The corrected mandate being returned to the district court, it overruled the motion to strike the counter affidavits from the files, and upon a hearing of the affidavits it was found that defendant had notice of the pend-ency of the action, and his motion to open the decree was denied. Meld, No error; that the correction of the mandate having been made before ijhe final hearing of the motion, it was authority to the district court to proceed as it did. Meld, further, That the direction contained in the original mandate and opinion was not' the application of a legal principle binding upon the supreme court as an adjudication, to be corrected only by a rehearing, but simply a misdirection, which might have been corrected.by the court on its own motion had attention been called to it.</p>

<p>Taxes: liability of county for illegal sale. Where the treasurer of a county has sold lands lor taxes ■which were not taxable and upon which no tax was due, the county is to ho d the purchaser harmless by paying him the amount of principal, interest and costs. Roberts v. Adams Co., 18 Neb,, 471.</p>

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

<p>Jurisdiction: Indian reservations. The courts of this state have no authority to prosecute and punish one Indian for a crime committed against another on the reservation to which they each belong, so long as they maintain their tribal relations.</p>

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

<p>Trial: evidence. The evidence examined and Held insufficient to sustain the verdict.</p>

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

<p>1. Internal Improvements: bonds roe water grist-mill. Where bonds were issued by a precinct to be delivered to certain persons named, upon their executing a satisfactory bond, with approved sureties, to the county commissioners, “conditioned for the erection of a grist-mill on the Little Blue river, east of Spring Ranch, in said precinct; said grist-mill to be first-class in all respects, with capacity for two run of stone, if trade demands,” Held, After the issue of the bonds and erection of mill, where no question is made in the pleadings that the mill is not propelled by water, that it will be presumed from the words, “on the Little Blue river.”</p> <p>2. -: -. Bonds issued pursuant to law for a grist-mill . propelled by water are valid.</p>

<p>Husband and Wife: separate estate or wipe: liability of WIPE. Where a married woman signed a note for a stranger as surety, and thereby enabled him to borrow money, and in an action on the notes alleged in substance that she signed the same only as surety, and 1 ‘ that she received no part of the consideration for which said notes were given, and no benefit accrued from said notes to her or her separate estate,” Held, That as her non-liability can arise only from her inability to enter • into the contract, she must show by her answer that the contract did not concern her separate property, trade, or business.</p>

<p>Bankruptcy: discharge: fraud: injunction. OneM.brought an action in equity to enjoin a sale,upon execution of real estate owned by him, upon tbe ground that since the recovery of the judgment he had been discharged from the debt by proceedings in bankruptcy. To this petition the defendant answered in substance that while said proceedings in bankruptcy were pending the plaintiff was the owner of the real estate in controversy in the name of another, and that he fraudulently failed to list the same as a part of his assets. Held, That the court as a condition of granting relief should apply the maxim “he who seeks-equity must do equity,” and that relief may be denied except, upon condition of paying the debt.</p>

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

<p>1. Trial: evidence. The evidence examined and found sufficient to sustain the finding and judgment.</p> <p>2. Partnership. A partnership formed for the purpose of carrying on a legitimate business, such as buying and shipping fat cattle, will not be held illegal, immoral, or contra donas mores, by reason of sharp or fraudulent practices used or suffered by the parties in the prosecution of such business.</p> <p>3. -: EVIDENCE. Where it is equally the duty of each member of a partnership to see that the certificate of such partnership is recorded, as required by law, neither one of the part, ners can avail himself of the failure to perform such duty in an action between such partners.</p> <p>4. -: -. As between partners, the ultimate facts whence a partnership is deduced are, first, the agreement, and, second, its execution; summed up as the executed agreement. Grover v. Tollman, 8-Nev., 78.</p>

<p>1. Attachment: causes eor. To justify a party in causing an attachment to issue against the property of a debtor, at least one of the causes of attachment mentioned in the statute must exist.</p> <p>2.--:--. Mere insolvency of the debtor, even if it exist, ■is not a cause of attachment.</p> <p>3.--: evidence. On the testimony in the record; Meld, That the attachment was properly dissolved.</p>

<p>1. Judgment: collateral attack. A judgment rendered against a person — and equally so of one rendered, in his favor— after his death is reversible, if the fact and time of death appear on the record, or in error coram nobis, if the fact must be shown aliunde. It is voidable, and not void, and cannot be impeached collaterally. Jennings v. Simpson, 12 Neb., 558, citing Tapien. Titus, 41 Penn. State, 195.</p> <p>2. Jurisdiction: insane defendant: g-ttardían ad litem. A court, by the service of its process, acquires jurisdiction over the person of an insane defendant, and the failure to appoint a guardian ad litem does not render the judgment either void or .voidable. It is at most only erroneous, for which the appropriate remedy is by proceedings in error, and not by an original action to vacate the judgment. See McAllister n. Lancaster County, 15 Neb., 295.</p> <p>3. Summons: service by publication. An affidavit for service by publication is sufficient if it states the nature of the cause of action for which publication may be made, and that service of summons cannot be made upon the defendant or defendants within the state, Fonts v. Mann, 15 Neb., 172, and it is not necessary that the statement that service of summons cannot be made upon the defendant in the state, be made in the language of the statute. If the fact is made to appear by the affidavit it is sufficient.</p> <p>4. -: -: sufficiency of notice. When service of the pendency of the action is made hy publication, if the published notice is so specific as to advise the defendants of their interest sought to he affected by the proceeding it is sufficient. See Gary v. May, 16 Ohio, 66.</p>

<p>1. Criminal Law: confessions as evidence. Where a detective in the guise of a friend induced a suspected party to make a confession of a crime without inducements of any kind except at his request, he said that he had consulted an attorney for the prisoner who said “ he (the prisoner) had better tell the facts of the case, and that they would be likely to do him as much good as anything he could do ; that there was no use lying about it, and he had better tell the truth,” Held, 1, That the alleged confession was admissible in evidence ; 2, That the credibility ■of a witness, who by deceit, misrepresentation, and.other discreditable means has obtained an alleged confession from a prisoner is for the jury, who should be specially instructed on that, point.</p> <p>2. -: reasonable doubt. An instruction that persons sometimes say they are morally certain of the existence of a fact or facts, but have not the evidence to prove it, jbhis — is the condition of mind one is in when convinced beyond a reasonable doubt, is erroneous.</p> <p>3.- : ALLEGATIONS UNCONTRADICTED NOT REGARDED AS proved. Where the defendant in a criminal case has pleaded not guilty, the jury, in order to convict him of the offense charged, must find from the evidence that he is guilty, and the court has. no authority to say to them that certain allegations are uncontradicted, and therefore may be by the j ury considered as proved. The credibility of the witnesses must-be submitted to the jury.</p> <p>4. Instructions: exceptions. Instructions must be excepted to in order to obtain a review of them in the supreme court.</p> <p>5. Criminal Law: evidence oe accused : argument of prosecutor. If a person accused of crime testifies in his own behalf he is to be treated as any other witness, and if he fails to-deny a material fact which has been testified against him, the district attorney may comment upon such omission in his argument to the jury.</p>

<p>1. Mortgage: assignment of note. The assignment of one of a series of notes secured by mortgage, without any accompanying transfer of the mortgage, is an assignment pro tanto of the mortgage.</p> <p>2, -: FORECLOSURE of portion of security. "Where there are several notes secured by mortgage, the holders are entitled to share equally in the common fund, and a foreclosure by a holder of a portion of the notes, without malting the other holders parties, will not bar the right of such parties to bring an action of foreclosure. _</p> <p>3.--: limitation. An action to foreclose a mortgage of real estate may be brought at any time within ten years after the cause of action accrues.</p>

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

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

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

<p>Trial: new trial. Immaterial and irrelevant testimony ad- ° mitted over defendant’s objection, and which may have a tendency to mislead the jury, is good ground for a new trial-Harrison v. Baker, 15 Neb., 43.</p>

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

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

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

<p>1. Petition: sufficiency. A petition, when assailed after a decree, will be held sufficient if the facts stated constitute a cause of action, even though informally and indefinitely stated. Such defects must be corrected by motion before answer or demurrer^ or they will be deemed to be waived.</p> <p>2. Appeal: finding sustained. In a case brought to the supreme court on appeal, where no question of law is involved, and the testimony is conflicting and pretty evenly balanced, the finding of the court will not be disturbed. Callahan v. Callahan, 7 Neb., 38.</p> <p>3. Evidence examined and SeId, to support the finding of the district court.</p>

<p>1. Railroads : right or way: appeal. Tlie rigM of appeal-from the award of commissioners in the assessment of damages sustained by an owner of real estate by the appropriation of the same to the use of a railroad corporation, may be availed of and perfected by the filing of a tran'script from the county judge of the condemnation proceedings in the district court, or the office of the clerk thereof, within sixty days after the filing of the report containing such award with the county judge.</p> <p>2. -: -: -. When such transcript is not filed, nor sufficient cause shown for such failure, without laches on the-part of the appellant, the appeal will be dismissed.</p>

<p>1. Evidence examined and Held to sustain the verdict.</p> <p>2. Pleadings: amendment. The court, upon such terms as may he just, may permit the amendment of a pleading after the evidence is introduced, and before the cause is submitted to the jury, and unless there is an abuse of discretion in the action of the court, error -will not lie.</p> <p>3. Instructions set out in the opinion, Held, Properly given.</p>

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

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

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

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

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

<p>Error to the district court for Saline county. Tried below before Broady, J, sitting for Morris, J. „</p>

<p>1. Limitation of Actions. Where there is no continuing trust and money received by an agent is not to be paid at a date later than its receipt, the statute of limitations will run in his favor from the time he received such money.</p> <p>2. -. To be valid under the statute, a promise to pay a debt barred by the statute of limitations, must be in writing.</p>

<p>Bill of Exceptions. Where it is sought to review the judgmen of the trial court upon the facts, the evidence must he preserved in a hill of exceptions.</p>

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

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

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

<p>1. Insurance: death of insured engaged in violating LAW. One who had a certificate of insurance on his life in favor of his wife, with an accomplice went into the treasury department of the state in the daytime and demanded money belonging to the state and was given five hundred dollars. He then left the department and had nearly reached the outer door of ■ the capítol, when a policeman, previously placed in a passage way but in the rear, commanded him to halt, and at the same instant fired and killed G. The certificate of insurance above referred to contained a provision that if the insured should “ die while violating any law,” etc., all rights under the certificate should be forfeited. 3eld, That as G. had obtained the money, and was endeavoring to escape when he was'killed, that he was not. at the instant of death violating any law, and there was no forfeiture of the certificate.</p> <p>2. -: stipulation poe . judgment. Where the parties in effect stipulate that in case a recovery can be had on a certificate of insurance the amount will be seven hundred dollars, and the court so finds, the finding will not be disturbed.</p>

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

<p>1. Appeal: trial. An action appealed from the county court to the district court must he tried on substantially the same issues as were presented to the county court, unless some matter, such as payment, release, etc., has arisen since the former trial.</p> <p>2.--: -: pleading. Where change of cause of action does not appear on the face of the petition, it may be set up by answer. 3. Evidence examined and Beld insufficient to sustain the verdict.</p> <p>4. Sale: privilege of use. Where a reaping machine was sold with leave to test the same by using it for one day, Beld, That the word day is to he understood with reference to the usage of farmers in working with such machine.</p> <p>5. -: WARRANTY. Where a machine was sold conditionally, and notes given for the purchase price, which notes were to he ■ returned in case the machine failed to comply with the warranty, Held, That the return of the machine, if properly made, was a sufficient demand of the notes.</p>

<p>1. Roads: establishment: mandamus. An elector residing within five miles of a proposed road, has an interest in the establishing, laying out, opening, and working the same, independent of that which he has in common with the public at' large, sufficient to enable him to maintain an action by mandamus to enforce an ascertained duty in respect thereto by a public board or officer.</p> <p>2. -: -: -. A mandamus will not issue to a county board to cause a section line to be opened and worked as a pub- ' lie road unless it has been judicially ascertained and decided by said board under existing facts and conditions that the public good requires it.</p>

<p>Statute of Frauds: contract not in writing. B. and P. having been in negotiation for the purchase by B. of 2,000 acres of land off the east end of a large tract owned by P., B. wrote to P. as follows: “On the enclosed map you will observe that taking to the dotted lines are about 2,018 acres. Will you include this full amount in the sale? I think it would be better. If you cut off just 2,000 acres a good portion must be described' by metes and bounds, which would be inconvenient, at least.” P. replied: “The land marked out by you contains 2,088.97 acres instead of 2,018 acres as figured by you. This is more than I want to sell. Take out one of the plats marked in similar ink to this, and then B. will have to pay $5.00 per acre for all extra land. Taking out the tract marked (1) will leave 2,002.77 acres, the price for which will be $10,013.85. Doing the same with tract (2) will leave 2,007.69 acres, for which the price will be . $10,033.45.” In an action by B. against P. for refusing to convey the 2,018 acres according to the dotted lines on the map, for $10,090.00, Held, That if there was a contract between the parties for the sale of that specific property, the same was void under the statute of frauds for the want of a contract or some note or memorandum thereof in writing.</p>

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