Volume 21 — Nebraska Reports

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

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

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

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

<p>Summons: service: A summons was issued by a justice of the peace and delivered to the sheriff of the county for service, who returned the same with the manner of service endorsed thereon, as follows: “ August 23, 1884. Received this writ, and on the 23d day of August, 1884, I served the same on the within named defendant, H. J. Palmer, by leaving a copy of the within summons with George Palmer, and by him, the said George Palmer, in my presence at the time of said service delivered, the same being a true copy of the within summons with all endorsements thereon certified by me to be a true copy to said H. J. Palmer,” properly signed by the officer; Held, To be a compliance with the requirements of section 911 of the civil code, and that the service gave jurisdiction.</p>

<p>1. Landlord and Tenant: attornment: termination oe LEASE. A leased of B certain real estate for an indefinite term, rent to be paid monthly in advance. B afterwards leased the same property to C for the term of one year, subject to the lease of A, the rent accruing from A to be paid to C. A refused to recognize C as her landlord, and failed to pay rent to him. In an action by C for the possession of the property, it was Held ■ that the grant of the reversion by B to C was effectual without an attorment by A to C, and held, also, that C, the assignee of the reversion, was entitled to collect the rent accruing after the execution of the conveyance to him which had not been paid to B prior to notice of the assignment. In such case the failure to pay rent to C would terminate the lease of A.</p> <p>2 -=-: FORCIBLE ENTRY AND DETENTION : NOTICE. In the absence of a stipulation to the contrary, where a tenant fails and refuses to pay rent according to the terms of his lease when due, such refusal terminates the lease, and by section 1021 of the civil code he is ‘‘holding over his term,” and liable to an action for the forcible detention of the property. In such case no other notice than the three days’ notice to quit, provided by Sec. 1022, Id., is necessary.</p>

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

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

<p>1. Replevin: answer, general denial. In replevin, the plaintiff’s cause of action depending essentially upon Iiis right to the immediate possession of the property in controversy, a general denial by the defendant puts in issue not only such right of possession,, but every collateral fact necessary to the establishing of the same. In such case, Held, That an answer containing a general denial will not be required to be made more definite and certain.</p> <p>2. -: DAMAGES. In replevin damages, other than legal interest on the value of the property as found, for the detention of the property, are recoverable only in case of a return. If the property is not returned the measure of damages is the value of the property as proved, together with lawful interest thereon from the date of the unlawful talcing. See Romberg v. Hughes, 18 Neb., 579.</p> <p>3. Warranty. Plaintiff’s contract of warranty construed.</p>

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

<p>Deed: conveyance by one of feeble mind: undue influence. C., a man past 70 years of age, afflicted with senile cerebral atrophy to such an extent that his mind and memory were so impaired that he often did not know his own sons with whom he had resided all their lives, would olten become lost in his own house, door-yard, and orchard. Being possessed of a farm of the value of nearly twenty thousand dollars, and being the father of thirteen sons and daughter, all mature men and women, the fruits of three several marriages, his third wife being dead, and the youngest son -being married and occupying the old homestead with C., the father, a claim was presented to C. by an attorney on behalf of one Mrs. S., a daughter of the last wife of C. by a former husband, for her share of $1,500, alleged to have been received by C. of money inherited by his said last wife from a deceased uncle’s estate in the year 1844, and some of the sons of C., by the said last wife, including the said youngest of said sons, co-operated with the attorney to effect a settlement of the claim of Mrs. S., their half sister, as well as the claim of the six sons and daughters of C. by his said last wife to the balance of said $1,500. Whereupon, C. executed and delivered to the said six sons and daughters by his said last wife, a deed of general warranty of and to his said farm (the same being his entire possessions), reserving to himself a life estate therein and excepting from the covenant of warranty the claim of Mrs. S. for no other consideration than the said claims. In an action commenced in the name of C., and which at his death was revived in the name of his seven sons and daughters by the two former marriages; Held, That the judgment and decree of the district court, whereby the said deed was vacated, annulled, and declared of no force or effect, be affirmed.</p>

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

<p>1. . Mechanics’ Lien: proceedings to perfect lien. Under sec. 2 of mechanics’ lien law of 1881, any person who shall furnish any material to a contractor for the construction of any building shall be entitled to a lien thereon for the amount due him from such contractor for the same, upon filing a sworn statement of such amount with the proper county clerk within sixty days from the time of furnishing such material.</p> <p>2. -: -: material man. All payments within the sixty days by the owner of the building to the original con. tractor will be at his own risk; and as against one furnishing material for the construction of the building, the fact that the original contractor is indebted to the owner will not prevent the material man from enforcing his lien for such material against such building and the lot on which it stands.</p> <p>3. -: contract as construed in Ballou v. Blade, 17 Neb., 389, adhered to.</p>

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

<p>1. Justice of Peace: offer to confess judgment: costs. Where, in an action for money before a justice of the peace, it is shown by the docket of the justice that prior to the day of trial the defendant offered to confess judgment in favor of the plaintiff for a certain sum, which the plaintiff refused to accept, there is no presumption that the offer was not in writing, and in such case the decision of the district court on a motion to tax costs to plaintiff for the reason that the judgment did not exceed the offer, will not be molested. ,</p> <p>2. Judgment: offer to confess. An offer to confess judgment duly made in the court where the action is brought, under section 1,004 of the code of civil procedure, need not he renewed in the appellate court in order to make it available to the party making it on final judgment. Kleffel v. Bullock, 8 Neb., 336.</p>

<p>1. Replevin: petition. A petition in replevin is sufficient if it contain proper allegations that the plaintiff is the owner of the property in dispute and entitled to its immediate possession, and that it is unlawfully detained by the defendant. It is not necessary that it should contain averments that the property was not taken in execution on any order or judgment against the plaintiff or for the payment of any fine, .tax, or amercement assessed against him, or hy virtue of an order of delivery in replevin or in other mesne or final process against'him. These allegations are required only in the affidavit to he filed at the commencement of the action.</p> <p>2. Evidence examined, and Seld, Sufficient to sustain the verdict.</p>

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

<p>■ Error to tlie district court for Hamilton county. Tried below before Norval, J.</p>

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

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

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

<p>Internal Improvements: bonds: precinct bonds: election. Under the provisions of section 14, chapter 45, of the Compiled Statutes of 1885, to authorize the county commissioners to call a special precinct election for the purpose of voting bonds in a precinct in aid of works of internal improvements, etc., a petition signed by not less than fifty freeholders of sucb precinct must be presented to sucb county commissioners, setting forth the nature of the work contemplated, the amount of bonds sought to be voted, the rate of interest, and the date when the principal and interest shall become due. An election called and held without such petition is of no validity.</p>

<p>3. Chattel Mortgage: description or property. On January 9th, 1885, one A. executed a chattel mortgage to one P. on certain cattle, described as follows: “ Ten head of two-year-old past steers, valued at thirty-five dollars per head. * * * * The above described chattels axe now in my possession, are owned by me, and are free from all incumbrances in all respects. ’ ’ And on the next day said A. executed a chattel mortgage to one M. on nine head of cattle, described as follows: “Ninehead of two and three-year-old steers situate on farm, south of Bennet, Nebraska, 11 miles. The above described chattels are now in my possession, are owned by me, and are free from all incumbrances in all respects.” A., at the time of executing said mortgages, possessed ninety-eight head of steers of the description named on his farm south of Bennet, and the steers mortgaged were not separated from the others, but the description applied equally to the ninety-eight steers owned by A. Held, First, that the mortgages created no liens upon any specific steers, and, as against an attaching creditor, were a nullity.</p> <p>2. -: attachment: rights oe creditor. The fact that before the levy of the attachment, certain steers had been separated from the whole number and claimed under the second mortgage, would be unavailing as against such creditor, unless it was also shown that at the time the mortgage was executed there was an agreement that it should apply to such steers.</p>

Heard below before Mitchell, J. 1. A quit-claim deed acts as an estoppel. Franklin v. Kelley, 2 Neb., 111. The holder of title under a quit-claim is protected by statute. Morris v. Daniels, 35 O. St., 406, 420. A quit-claim deed in a chain of title does not deprive him who claims under it of the character of a bona fida purchaser.. Chapman v. Sims, 53 Miss., 154. Brown v. Banner Coal Co., 97 111., 215. MeConnel v. Feed, 4 Scam., 117. Morgan v. Clayton, 61 111., 40.

<p>1. Clerk District Court: election : mandamus. In an action by mandamus, where it appears that the office of clerk of the district court of S. county became vacant by the removal of ,M. more than thirty days before the general election of 1886, that upon the canvass of the votes cast at said election, F., the relator, was declared duly elected to said office, which said canvass and declaration is duly evidenced by a certificate of election, issued and delivered to F. under the hand and official seal of the county clerk; that said F. has taken the oath of office, and filed the bond as required by law, which bond was duly approved, and has thereafter demanded the said office and the books, and papers belonging thereto of D , who had been appointed to said office by- the board of county commissioners, which was refused, Held, That a writ of mandamus would issue without inquiry as to the form of the notice of said election or of the ballots cast thereat.</p>

<p>1. Township organization: vacancies in town offices. "When, in a new town, erected by the county board, in the division of the county into towns or towr.sh'ps, at the first meeting of said board, the offices of the town board, as well as of the town clerk, are all vacant, it is the duty of the county clerk to fill such vacancies as well as all other vacancies in the offices of such town by appointment.</p> <p><i. -: mandamus. In a proper case, such duty will he enforced by mandamus.</p>

<p>1. Roads: opening: notice: petition. Where the testimony tends to show that notices for the location of a public road not signed were duly posted and a petition thereafter presented to the county commissioners, signed by more than ten landholders praying for the location of such road as was described in the notices, and a public road was thereupon located, opened, ,and traveled for more than ten years, Seld, A valid public road.</p> <p>2. -: petition BY owner or band. A petitioner for the location of a public road over his own land is not entitled to notice of the pendency of such petition. He is, in fact, a plaintiff in the proceeding, and where a petition signed by the requisite number of landholders has been acted upon by the proper authorities aid a road located, a grantee of such petitioner cannot enjoin the use of the road upon the ground of want of notice to his grantor.</p>

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

<p>1. Partition: not maintainable by one out of possession. A party out of possession of real estate, -whose title is denied, cannot maintain an action of partition against one in possession claiming the title to said land. He must first establish his estate in the land.</p> <p>2. Administration of Estates: sale by executor : title acquired. Where an executor files a petition in the proper court for license to sell real property belonging to the estate of the testator, and the heirs and devisees sign a waiver of notice and enter an appearance in the case, or are duly served with notice, such notice will continue until the debts mentioned in the petition are paid by the sale of the real property described therein, and a purchaser under a license issued on such petition, who has paid the purchase price, the same being applied to the payment of the debts against the estate of the testator, and the sale having been confirmed and a deed made to such purchaser, may . rely upon the title so acquired as against collateral attack from the heirs and devisees of- such testator.</p> <p>3. Partition: equity jurisdiction. While in a proper case a court of equity will retain a petition for the partition of real estate, where the title of the plaintiff is denied or is not clear, until he can try his title at law, yet, where it is apparent from the whole record that the plaintiff has no interest in the premises, the right will be denied.</p>

<p>1. Municipal Corporations: contracts of officers. The city council of a city of the second class, or any committee or member thereof, officer or department of the corporation, cannot incur any expense or enter into any contract, whether the object of the expenditure shall have been ordered by the city council or not, unless an appropriation shall have been previously made concerning such expense; except in cases where the proposition has been sanctioned by a majority of the legal voters of the city, etc.</p> <p>2. -:--: liability of OFFICERS. Where the mayor and council of a city of the second class drew an order upon the cemetery fund of such city for 5716.66, there being at the time 51,000 in such fund in the treasury of such city, and applied the proceeds to the payment of lands purchased as an addition to the cemetery of such city, but no appropriation had been previously made concerning such expense; Held, No act of ratification being proved, that the mayor and clerk were liable for the amount drawn on such order.</p>

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

<p>1. Witnesses. Under the provisions of the statutes of this state the parties to a civil action are competent witnesses, and each may be compelled to testify in favor of the adverse party the same as any witness.</p> <p>2. Notary Public: deposition: contumacious witness. A notary public has power to commit for contempt a witness who refuses to give his deposition in a proper case.</p>

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

<p>1. Errors must be assigned in Motion for Hew Trial. In an action at law, to obtain a review of errors which have occurred during the progress of a trial, they must be assigned in the motion for a new trial.</p> <p>2. Chattel Mortgage: priority or liens. A chattel mortgage, executed by the mortgagor in possession of the property as owner, although the legal title was not to pass to him until the chattels were paid for, where such contract of conditional sale was not filed for record, will take precedence over the secret lien of the party claiming to hold the legal title.</p> <p>3. Assignment of Error: verdict. Where the only assignment of error in the motion for a new trial is that the ‘ ‘ verdict is contrary to the facts,” the verdict will not be set aside unless clearly wrong.</p>

<p>1. Receiver. All order appointing a receiver in a ease brought for the forelosure of a mortgage without notice served on the defendant, or his solicitor, as required by section 267 of the code of civil procedure, Held, to be void.</p> <p>2. -: liability for money collected. Money collected by a receiver acting under a void appointment, as such, maybe recovered from him by the party entitled to it in an action for money bad and received to the use of the plaintiff.</p>

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

<p>1. Execution: stay: writ to issue against debtor and sureties. Where, upon a judgment rendered in a county-court, in a sum exceeding two hundred dollars, exclusive costs, a stay has heen taken by filing a bond with sureties in accordance with the provisions of the statute, and such judgment is not paid within the time limited by law and the terms of such stay bond, it is the duty of the county judge, upon demand, to issue a joint execution against the property of all of the judgment debtors and sureties in such stay bond, describing them as debtors and sureties therein.</p> <p>2. -: -: mandamus. In a proper case such duty will be enforced by mandamus.</p>

<p>Application for habeas corpus.</p>

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

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

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

<p>1. Justice of Peace : practice. Bill of particulars examined and Held, Sufficient when attacked after judgment in a cause where the parties had appeared and a trial was had upon the merits of the case.</p> <p>2. -: procedure. "Where jurisdiction appears, all matters relating to the form of procedure injustice courts will he construed with great liberality.</p>

<p>1. Railroads: power of eminent domain: ejectment: trespass. The remedy given by statute to land-owners for injuries sustained by taking land for railways is exclusive of all other remedies. But this rule-does not preclude the land-owner from bringing ejectment for the possession of real estate illegally occupied by a railroad. Where a railroad company without consent of the owner takes and occupies real estate as a part of its right of way without pursuing the statutory method of appraisement and condemnation, and thus making its possession rightful, it is, as all others under like circumstances would be, a trespasser and cannot justify its possession. In such case the usual common law remedies are available to the owner.</p> <p>2. -: -: defective proceedings. . Where proceedings to condemn real estate, instituted and carried through by a railroad company, are so defective as to be void for want of jurisdiction, such proceeding will afford no defense to an action of ejectment instituted by the land-owners to recover the possion of the land taken and occupied by the railroad for right of way purposes.</p> <p>3. -: -: constitutional law. The constitutional guaranty that ‘ ‘ the property of no person shall be taken or damaged for public use without just compensation therefor” makes it incumbent upon a railroad company, or other governmental agency, exercising the right of eminent domain, to render such compensation before the right to appropriate the property will exist, and in case of failure to agree upon the damages accruing from the taking, the railroad company must proceed to condemn under the forms of law (unless such proceedings are instituted by the land-owner); and in case of failure so to do the possession of the real estate by the company for railroad or other purpose will be illegal, and ejectment may be maintained .•by the land-owner.</p> <p>4. -: -: WITHDRAWAL OF DEPOSITED CONDEMNATION MONEY. Where a railroad company condemns private property to public use and deposits the condemnation money with the county judge of the proper county, in accordance with law, and takes possession of the condemned land, the subsequent withdrawal of the deposit from the county judge, for the reason that the proceedings were illegal, will be an abandonment of all right to claim the possession of the real estate under such proceedings. Cobh, J., dissents.</p> <p>6. -: -: service by publication. Where, in a proceeding to condemn the right of way through or over the real estate of a non-resident, notice is given by publication in a newspaper, that if the owner fails to apply for an assessment of damages by a date named, then the railroad company will apply therefor, and that the appraisement will be made at the premises on a day and hour named in the notice, such publication will give no authority for the assessment of damages nine months after the day fixed therefor in the notice.</p> <p>6. -: -: -. Where it is sought to exercise the right of eminent domain in the condemnation of the real estate of a non-resident and notice of such intention is given by publication, the publication must be made in one newspaper four successive weeks. .The publication of such notice in' a daily newspaper a- part of the time and the remainder of the time in a weekly, (the papers being sent to different sets of subscribers . in different localities,) will not confer jurisdiction and all proceedings thereunder will be void.</p> <p>7. Limitation of Actions: real estate: possession. A party in order to acquire title to land by the statute of limitations must not only have a possession adverse to the true owner, but must occupy the same as the owner during the entire statutory period.</p> <p>8. -: -: ejectment: property condemned by railroad. In an action in ejectment against a railroad company for real estate occupied by it as a part of its right of way, the company claimed title to the property by reason of the statute of limitations. Within the ten years last preceding the commencement of the action the railroad company sought to condemn the property to its use under the provisions of the statute for the condemnation of real estate. These proceedings were instituted against the real owner by name, and the condemnation money deposited with the county judge for him. It was Held that these proceedings amounted to a recognition of the ownership of the person against whom they were instituted, and would arrest the running of the statute, even though the proceedings were void for want of jurisdiction by reason of a failure to comply with the law in the publication of the notice.</p>

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

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

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

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

<p>1. Trial: jurors: challenges. Where objections are made to certain jurors, and the record fails to show that the party exhausted his peremptory challenges, the objection will be unavailing in the supreme court.</p> <p>2. Witnesses: cross-examination. A witness cannot be cross-examined as to an independent collateral matter in no way connected with the subject of the action, in order to show contradictory statements made by him, for the purpose of impeaching his credibility.</p> <p>3. Liquors: sale: evidence. The sale of intoxicating liquor in a saloon may be proved by circumstantial evidence, and where the circumstances establish such sale the jury will be justified in disregarding the positive assertion of the bar-tender that the liquor sold by him was not intoxicating.</p> <p>4. -: -: PRESUMPTION. An instruction that “If you shall find from the evidence thatthe deceased went into the saloon of the defendant, and that the business of the defendant was to sell intoxicating drinks, and that deceased was sober when he went into the saloon, and that he came out of the saloon intoxicated, these facts raise a presumption that such person obtained intoxicating liquor in such saloon, but such presumption may be overcome by the proofs and circumstances; and if you shall find from the evidence that deceased did not procure liquor from the defendant that caused him to be intoxicated, or that contributed thereto, you should find for the defendant,” Held, Not erroneous.</p> <p>5. -: -- — : INSTRUCTIONS. Instructions referred to in the opinion Held, Properly refused.</p> <p>6. -: -: damages. Held, Excessive, and leave given to remit §500 from the judgment within thirty days.</p>

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

<p>Medicine: physicians : complaint fob practicing without qualifications. The complaint under which plaintiff was convicted charged that at a time and place named plaintiff in error did “ Commit the offense of practicing medicine, claiming to be a physician, in violation of the provisions of chapter 55 of the Compiled Statutes of the state of Nebraska, in this, that having registered under section 2 of said chapter, he was not entitled to make such registration or to practice as a physician, not being possessed of any of the qualifications in section 4 of said chapter, ” etc. It was Held that the complaint did not state facts sufficient to constitute an offense and that the accused was improperly placed upon his trial thereunder.</p>

<p>Motion to dismiss.</p>

<p>1. Trial. Questions of fact and upon conflicting testimony, are to be decided by the trial court, or jury, and a finding or verdict will not be set aside on the ground of a want of sufficient evidence to support it unless the want is so great as to show that the verdict is manifestly wrong.</p> <p>2. Insurance: note given in payment op premium. A promissory note given for the premium on an insurance policy issued by an insurance company which had not complied with the laws of the state in filing its statement and procuring the ■certificate of the state auditor authorizing it to issue policies, is void as between the parties to the contract, and cannot be enforced.</p>

<p>1. Party Under- Indictment in County other than his Residence, not Liable to Civil Action there. A party who is charged with a criminal offense in a county- other than that in which he resides, and who has given bail for his appearance at the next term of the district court of such county, and who in pursuance of such bail, attends said, court at the time and place stated, and who upon the trial is discharged, is not liable to be served in such county with process in a civil action until after a reasonable time has elapsed to enable him to return to his home.</p> <p>2. --. The immunity is not confined to witnesses, but extends also to parties.</p>

<p>1. Evidence. Held, That a preponderance of the testimony sustained the finding of. the court below as to the amount due from the defendant to the plaintiff.</p> <p>2. - Mechanic’s Lien. A mere inchoate right to a mechanic’s lien is not assignable; such lien passes with an assignment of the debt only where it has been perfected under the statute.</p> <p>3. Justice of Peace: jurisdiction: costs. Where a justice of the peace has jurisdiction of the cause of action and it is brought in the district court the plaintiff will not be entitled to recover costs.</p>

<p>1. - Appeal to Supreme Court. In a case brought to thé supreme court on appeal, where it is claimed that the finding and decree of the district court is not supported by the.evidence, such finding will not be disturbed if the testimony is conflicting unless it appears that the finding is clearly wrong.</p> <p>2. Divorce: teial: evidence. In an action for divorce, tried to the district court without a jury, the fact that incompetent evidence was admitted over the objection of the party complaining, will not of itself require a reversal of the decree, if upon the whole case there was sufficient competent evidence admitted to sustain it.</p> <p>3. -: -: alimony: decebe modified. Where it was shown that the husband was possessed of property of the value of $2,200, and the wife was.possessed of $500 worth of property in her own right, it was held that a decree allowing the wife $800 of alimony and $150 attorney’s fees, was excessive, and the decree for alimony was modified, and the sum of $500 allowed ; in addition to the attorney’s fees, it not appearing that the wife had contributed to the common fund.</p>

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

<p>All the parties in a joint judgment are necessary parties to a petition filed by one of their number to reverse it, and may be made so as plaintiffs or defendants, in conformity with the provisions of the code as to parties to civil .actions. Smefters v. Rainey, 14 O. S., 287.</p>

<p>Judgment: collection without execution: commission. The commission of one per cent authorized by sec. 11, chap. 28, of the Compiled Statutes, on money collected on judgment without execution by a justice of the peace or a county judge is to be paid by the judgment debtor.</p>

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

<p>1. Conversion; evidence * ownership oe property. In an action against a sheriff for taking and carrying away a stock of millinery goods and notions, the point in dispute being whether the goods were the property of B. F. S., or of his wife, Mrs. B. F. S., it having been proved that both of them had up to a certain point of time, under some authority and in some capacity, ' , __ exercised control over the said stock of goods and the store in which the same was kept, Held, Competent on the part of the defendant, who claimed under Mr. B. F. S., to prove any fact connected with the business of the Stumps, which from its nature must have1 been known to Mrs. S., inconsistent with her claim of ownership.</p> <p>2. -: -: - — . ' The fact that gdods purchased, for said business at different times, extending over a period of four or five years, and amounting to several thousand dollars, had been shipped to B. F. S., and all correspondence in relation to such goods and purchases had been carried on between the wholesale merchant selling such goods and B. F. S., and in his name, Seld, To afford some .evidence, however slight, that B. F. S. was acting in the capacity of owner rather than that of clerk, agent, or manager.</p> <p>3. Trial: examination op witness. A trial court will always allow a witness to explain an error, mistake, or oversight in his testimony when he requests to do so before leaving the stand. At what point of time is a matter of discretion with the court.</p> <p>4. Evidence: proop op lease. Where a lease purporting to have been executed by and between strangers and a party to the suit is offered in evidence, and its execution is not admitted by the opposite party, such execution must be proved. Where such lease purports to be signed by a subscribing, witness, proof of such signature being the genuine handwriting of the witness is sufficient.</p> <p>5. Witnesses: cross-examination. A witness for defendant. being under cross-examination, plaintiff’s counsel asked him whether he had not at a certain time and place — naming them— offered certain inducements of a pecuniary nature — specifying the same — to Mrs. B. F. 8., if she would “ come up and testify in the county court” (the said Mrs. S. having afterwards given her deposition on the part of the plaintiff). Defendant’s objection to such question, Held, Properly sustained.</p> <p>6. Conversion: evidence. When an officer attaches property found in the possession of a stranger claiming title, in an action for such taking, the officer, in order to j ustify it, must not only prove that the attachment defendant was indebted to the attachment plaintiff, but that the attachment was regularly-issued.</p>

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

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

This was a matter coming before the court upon a letter addressed to it by the auditor of public accounts, which letter is as follows: “The Honorable Supreme Court, State of Nebrasha. “ Gentlemen — In the transaction of business in my office it has become necessary for me to know the law regarding the capital, if any, required of a life insurance company organized within the state of Nebraska. “ If it is not inconsistent with your duties, in order that I may fully understand…

<p>1. Will: probate. In February, 1873, one S., a resident of Wayne county, Michigan, made a will, and soon thereafter died. Said will was thereupon duly admitted to probate in the proper court of Wayne county, Michigan, and soon afterwards in the probate court of Gage county, Nebraska, certain lands belonging to the estate of S., being situated in said county, which lands were afterwards sold by the executors under a power in said will. Held, The probate court of Gage county, in 1873, having jurisdiction, the admission of said will to probate in 1873 was valid, and that said court properly refused to again admit said will to probate in 1883.</p> <p>2. Summons: service by publication : prooe. Where publication has actually been made for the time and in the manner required by law, the failure to file proof of such publication before the hearing will not render the judgment void.</p> <p>3. Will: probate : endorsement : evidence. The certificate to be endorsed on a will, required by section 160 of the Decedents Act, is not essential to the validity of the probate thereof, but merely provides that a will so certified, and the record thereof, or a transcript of such record, duly certified, may be read in evidence in all courts within this state, without further proof.</p> <p>4. -: jurisdiction oe probate court: presumption. Where a probate court has jurisdiction in admitting a will to probate, all presumptions are in favor of the regularity of its proceedings, and in a collateral attack upon such probate the court will not inquire into the degree of proof required by the probate court.</p> <p>5. -: -. Mere irregularities in the proceedings, where the court has jurisdiction, are not subject to collateral attack.</p>

<p>1. Sale of Stock: incorrect weight; evidence. One B. sold forty-two head of fat steers and one hundred and four fat hogs to F. at an agreed price per one hundred pounds. The stock was weighed on the scales of F. and delivered, and on the succeeding day it was discovered that the scales were incorrect. In an action by B. against F. tó recov*er the difference between the weight of the stock given and the actual weight, Held, That a preponderance of the evidence! slÍQ.Jved fthá'tí the1- scales of-F. were incorrect, and that B. had thereby sustained damages.</p> <p>H. -: -: rights.of seller :.consideration. ,-Where • • a.party- sold'stock-to-be .paid ior,,by. weight;., andl said.stock was weighed on the scales of the buyer, which on the next day were found to have been out of order, and to have favored the buyer, Held, That the seller was entitled to have the stock weighed - correctly, and that a promise by him to pay the buyer a bonus to weigh the stock correctly was without consideration.</p> <p>3. -: -: ratification OF CONTRACT. Where one F. purchased forty-two fat steers, which were delivered and accepted by him, and on the succeeding-day, at the request of the seller, reweighed forty-one of said steers, but refused to accept the forty-second, but retained possession of said steer, and after-wards disposed of the same, Held, A ratification of the origi- ' nal contract, and the purchaser was liable to the seller for the purchase price agreed upon.</p> <p>4. Instructions: exceptions. Instructions not excepted to cannot be reviewed in the supreme court.</p>

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

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

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

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

<p>1. Taxes: foreclosure Off lien: limitation. An action to foreclose a tax lien on real estate may be brought on the tax certificate, when it is alleged in the petition that a deed would be invalid if issued. In such case the cause of action would accrue at the expiration of the time within which the land owner might redeem, and suit may be brought at any time within five » .years thereafter.</p> <p>2. -: -: --: A. purchased land at tax sale, on the 5th of February, 1878. A deed was refused by the treasurer, when demanded, for the reason that no notice was given of the expiration of the time for redemption, and that the sale was void. On the 21st day of February, 1885, more than five years after the expiration of the time for redemption, he commenced this action to foreclose the tax lien. Held, That his cause of action was barred by limitation.</p>

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

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

<p>1. Evidence Conflicting. When the evidence is conflicting and. it is apparent that some of the witnesses — the defendants — were mistaken, and that their testimony was disregarded by the court, the judgment will not be set aside as being against the weight of evidence.</p> <p>2. Infancy: mortgage by infant. Where an infant purchases real estate, and receives a conveyance thereof, and at the same time executes a mortgage upon the land to secure notes given for the purchase money, such mortgage is voidable only, not void; and when, on reaching his majority, he sells and conveys such real estate, he thereby confirms the mortgage.</p>

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

<p>1. Tenant in Common: chattels. Where a joint owner of personal property assumes without authority to sell the interest of his co-tenant, the latter may repudiate the sale and sue for the conversion of the property, or he may ratify it and sue for his share of the money received.</p> <p>2. -: -. If one tenant in commón of a chattel, without authority sell it, an action for conversion by his co-tenant will lie against him.</p>

<p>1. Judgment: lien. Where judgment is recovered in a district court against a vendor who has sold certain real estate in the same county hut has not made a deed therefor, nor received the whole of the purchase money, such judgment is a lien on the vendor’s interest in the land.</p> <p>2. -: -. A party purchasing real estate subject to a judgment lien has notice of the extent to which such property may be subjected in satisfying the judgment, and where a vendor had retained the legal title in his own name and afterwards became security for the purchaser for money to enable such purchaser to build a house on such land and received a lien on such house which he failed to record; Held, That a purchaser under said judgment acquired all the interest of the vendor, including the lien on said house, the aggregate not to exceed the amount of the judgment lien. That is, he acquires the interest of the judgment debtor in the real estate.</p>

<p>1. Negotiable Instruments: evidence of payment in part: burden OF proof. Where an action was brought upon a promissory note for the sum of $250, and it appeared that originally the loan had been made for $500, that a number ofrenewals had been had, and it was claimed by the payee that the note sued on was for the balance of the original loan; Held, That a letter written by the payee to the maker, as follows: “ Lincoln, Neb., June 1, 1883. Mrs. M. W. Butts — Your letter received, and we credit $300 on note, ” imposed on the payee the burden of showing that the note referred to in such letter was not that held by the payee against the defendant.</p>

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

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

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

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

<p>1. Default: answer. Unless a default is caused by the gross laches of a defendant, or his authorized attorney, he should be permitted to answer upon such terms as to the payment of costs as may be prescribed by the court, at any time before judgment is rendered; and where it is apparent that the answer presents a meritorious defense, the court must permit the answer to be filed.</p> <p>2. Practice in Supreme Court: correcting record. . The affidavit of the clerk of the district court cannot be resorted to for the purpose of correcting a transcript of the record certified to by him. If a false or erroneous record is certified to by him it should be corrected by a certified transcript of the record as it is.</p> <p>3. Answer examined, and held to state a defense.</p>

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

<p>1. Money Had and Received: evidence : foreign judgment. On the 26th day of July, 1886, plaintiff instituted this action against defendant upon a count for money had and received. Upon the trial,for the purpose of sustaining his case, he introduced evidence tending to prove an account stated on the 12th of August, 1871. He also introduced a stipulation entered into between the parties, in a suit pending in the circuit court of Adams county, Illinois, dated October 25th, 1877, whereby- defendant consented to a judgment in that action. The stipulation was admitted over the objection of defendant; Held, Error, as not tending to prove the allegations of the petition.</p> <p>2. Pleadings: replication. A plaintiff can recover only on the cause of action stated in his. petition. It is not the province of a reply to introduce a new or different cause of action from that stated in the petition.</p> <p>3. Account Stated: interest. Where an action is prosecuted upon an account stated by a defendant, and in which he charges himself with interest on money in his hands at the rate of ten per cent per annum, this will imply a promise to pay interest at that rate, if the proof shows the statement to have the effect of an account stated.</p> <p>4. Money Had and Received: evidence: pleadings. If in an action for money it is shown that payments have been made or money collected upon the same account after the commencement of the suit, by j udgment in a foreign court or otherwise, the recovery can only be for the balance remaining due. But before a -defense of that kind can be made, the issue must be presented in the pleadings.</p>

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

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

<p>1. Corporations: recovery on note given before organization perfected. Where after articles of incorporation were drawn np and signed by the promoters of a cattle company, but before they were recorded or filed for record in the office of the county clerk, and before the time fixed in such articles for the commencement of the business of such corporation, a president was selected for the corporation, by such promoters, and the president, in the presence and with the approval of all of such promoters, executed and delivered to one M. a note, in payment for, and in consideration of, the sale and delivery of certain horses, cattle, ranch, and other property to said corporation, which, after the perfecting of the said corporation and the time fixed for the commencement of the business thereof, came into its hands as its property, and continued to be used and enjoyed by it as such ; Seld} That the endorsee of M. could recover on said note.</p> <p>2.. Pleading: replication. Where a defendant in an action alleges by way of answer any matter in bar of the plaintiff’s action, the plaintiff may, by way.of reply, allege any fact or facts not inconsistent with the facts alleged in his petition, by reason of which the defendant may be estopped to avail himself of such defense.</p> <p>3. Negotiable Instruments: consideration. The sale and relinquishment of an inchoate homestead, or other possessory right upon the public domain, together with the ranch and other improvements thereon; Held, To constitute a good and valid consideration for a promissory note.</p>

<p>1. Constitutional Law: district judges. A bill to reapportion the state into judicial districts, and to provide judges therefor, passed the legislature in due form, but before being signed by the governor was changed,- reducing the number of judges to one in the second district. Held, That the act being complete in itself as to the first, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth districts and capable of being executed, was not affected by the invalidity of that part of the act relating to the second district. State v. MeLelland, 18 Neb., 243; State v. Robinson, 20 Id., 96, distinguished. That the provision in regard to the second district was null and void.</p> <p>2. -: -. The act of 1885, providing for two judges in the second district, is valid, and the number of such judges cannot, under the constitution, be changed oftener than every four years.</p> <p>3. -: -: appropriation. The appropriation made by the legislature of $95,000 for the payment of salaries of nineteen judges of the district court, is an appropriation in gross to be applied as far as necessary to the payment of the salaries of all judges of the district courts.</p>

<p>1. County Court: jurisdiction. The county court of the county of which a deceased intestate was an inhabitant or resident has jurisdiction to appoint an administrator when these facts are shown and it is made to appear that an administrator is necessary. This jurisdiction is conferred by section 177 of chapter 23 of the Compiled Statutes.</p> <p>2. -:--. During the first thirty days after the death of an intestate, the right of administration is conferred upon the nextofkin (or widow, if there is one), or such person as they may select, if suitable and competent to discharge the trust. Alter the expiration of that time the right is conferred upon'the principal creditors of the estate. If no such persons are competent or willing to accept the trust, it is the duty of the county judge to select such other person or persons as he may think proper (Sec. 178, Id.), and for this purpose the discretion is vested in the county judge, to be exercised for the best interest of the estate and those interested therein.</p> <p>3. -: PETITION FOR APPOINTMENT OF ADMINISTRATOR. After the expiration of the thirty days provided by section 178, chapter 23 of the Compiled Statutes, within which the widow or next of kin of an intestate may apply for administration of an estate, it is not necessary that a petition for the appointment of an administrator should allege that the person whose appointment is sought is the next of kin or selected by the next of kin to the intestate. Nor would it be necessary after the expiration of about two years after the decease to allege that there were no creditors competent or willing to accept the trust, in order to confer jurisdiction upon the county judge to appoint some other suitable person.</p>

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

<p>1. Husband and "Wife : deed to wire. A deed of conveyance . of real estate, executed by the husband directly to the wife, in the absence of fraud, and when neither the rights of creditors nor subsequent purchasers intervene, will convey to her such real estate without the intervention of a third party as trustee.</p> <p>U. -: HOMESTEAD. When the husband and wife occupy a homestead, the title to which is in the name of the husband, a deed of conveyance from the husband to the wife, signed^and acknowledged by him alone, is valid, although not signed and acknowledged by the wife.</p>

<p>1. Practice in Supreme Court: jurisdiction. Where judgment was rendered November 5th, 1885, and a petition in error was filed in the supreme court December 24th, 1886, a motion to dismiss for want of jurisdiction was sustained, the-petition in error being filed more than one year after the rendition of final judgment by the district court.</p> <p>2. -: -: stipulation. Prior to the expiration of the time within which' a proceeding in error might be instituted in the supreme court, the defendants in error stipulated with plaintiff in error, waiving the issuance and service of summons in error, and agreeing that the cause might be heard at a term then in session. It was held that such waiver and stipulation did not give authority to plaintiff in error to commence the action after the expiration of the time fixed by statute, and after the final adjournment of the term at which it was agreed the cause . should be submitted.</p>

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

<p>1. Summons: servios on widow and minor child. The return to a summons served on a widow and her minor children in the following form is sufficient:</p> <p>“ This summons came to hand September 4th, 1871, at 2 o’clock R.M., and on this 5th day of September, 1871,1 served this summons on Sarah Sanders in person, and Sarah E. Sanders and Charles Sanders by delivering to each of them atrue and certified copy of this summons, with all the endorsements thereon. All of this done in Nemaha county, state of Nebraska.</p> <p>“Davidson Plasters, Blieriff”</p> <p>2. Mortgage Foreclosure: guardian for minor defendants. In an action to foreclose a mortgage on real estate the failure of the court to appoint a guardian ad litem for minor defendants does not render the decree of foreclosure and sale void; at most, it is erroneous.</p> <p>3. Minors. A female, on reaching the age of eighteen years, ceases to he a minor.</p> <p>4. Limitation of Actions. One who has been in the open, notorious, exclusive, adverse possession of real estate for ten years becomes vested with a valid title to the same.</p> <p>5. Mortgage Foreclosure: mistake in description of premises. Where a mistake was made in the description of certain premises mortgaged, which mistake was carried through all the proceedings to foreclose the mortgage, sale of the premises, confirmation of sale, and deed to the purchaser, but it appeared that the premises intended to he mortgaged had actually been appraised and sold under such mortgage, and the purchaser had taken possession of the same; Held, No injury to the heirs of the mortgagor being shown, that the grantee of the purchaser was entitled to a decree correcting the mistake and quieting his title in said premises, hut at his own cost and expense.</p>

<p>1. Arbitration: AWARD. Where certain matters in difference between A. B. and C. D. were submitted to certain arbitrators, who made verbal award, which was ratified by the aforesaid parties by entering into a written agreement, signed by them and witnessed by said arbitrators; Held, That the parties had thereby accepted of said award, and no action could be brought upon the original items of account submitted to said arbitrators without showing some adequate cause for setting the award aside.</p> <p>2. -: -. Matters not submitted to the arbitrators, or not considered by them in making the award, may be sued on as though no award had been made.</p> <p>3. Testimony, Held, Insufficient to sustain the verdict.</p>

<p>Conversion: There being evidence of facts constituting a conversion of the property of the plaintiff by the defendants and the same having been fairly submitted to the jury by proper instructions, a verdict and judgment for the plaintiff upheld.</p>

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

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

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

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

<p>1. School Bonds: evidence of validity. Official certificates of the calling of an election in a school district for the purpose of voting on a proposition to issue 53,500 in the bonds of said district for the purpose of borrowing money to build a school house, and purchase a site therefor, of the posting up of notices of such election, of the holding of such election, and the result thereof, and of the issuance of such bonds, signed by persons claiming to be the director, moderator, and treasurer of said district, and the judges and clerk of said election, which official certificates were received in evidence upon the agreement and stipulation of parties; Held, To be evidence of the corporate existence of such school district at the date of such proceedings.</p> <p>2. -: registration certificate: evidence. The certificate of the registration of a school district bond, endorsed on such bond,signed by the county clerk under his official seal, and dated April 9,1874, introduced and received as evidence without objection ; Held To be evidence of the corporate existence of the school district by which such bond purported to have been issued.</p> <p>3. -; evidence of validity. The official certificate of the director of a school district, that notice of a certain special school meeting held in said district was given by posting up notices of said meeting twenty days before the holding thereof, in three of the most public places in said district, which certificate was introduced and received in evidence under a stipulation of parties, in which it was recited that such ‘ ‘ stipulation is for the purpose of using the same as testimony, instead of the plaintiff or defendant being obliged to take depositions to prove the same Held, To be evidence of the due publication of the notice of the calling,of such special school meeting.</p>