Volume 22 — Nebraska Reports

<p>1. The Fiscal Year commences on the first day of December of each year. '</p> <p>2. Appropriations by Legislature. The appropriations made hy the legislature where there is no provision limiting particular cases to a shorter period, extend to the end of the first fiscal quarter after the adjournment of the next regular session.</p> <p>3. -: sinking test well. .Where an appropriation was made by the legislature of 1885 for the purpose of sinking a well in the salt basin, and the legislature of 1887 adjourned sine die March 31st, 1887, Held, That the appropriation of 1885 continued in force until August 31st, 1887. People v. Swigert, 107 111., 494; People v. Lippineott, 64 Id., 256; People v. Needles, 96 Id. 575, approved and followed.</p>

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

<p>School District: power of officers. The duties devolved upon the members of the school district board, or upon the moderator and director, by section 8 of chapter 79, Comp. Stat., can only be performed by those two officers acting in.eonjune- • tion. Any attempt on the part of either of them to perform such duties alone and without the joint action of the other, is ineffective and void.</p>

<p>1. Th.e evidence examined, and Held, Not sufficient to sustain the verdict.</p> <p>2. A verdict so clearly wrong as to induce the belief on the part of the reviewing court that it must have been found through mistake, or some means not apparent in the record, will be set aside and a new trial awarded.</p>

<p>Error to the district court, for Saline county. Tried below before Morris, J.</p> <p>cited: Kingsbury v. Smith, 13 New Hamp., 109. Hyde v. Noble, 13 Id., 494. Farley v. Lincoln, 51 Id., 580.</p> <p>cited: Casev. Lane, 21 Kan., 217.</p>

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

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

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

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

<p>Contract: rescission: payment: tender. D. company purchased of- P. & J a herd of cattle and calves, ranch, the possessory right of herding range, and miscellaneous oufit of herding and ranching property, situated at and known as “ The Chadron Creek Ranche, ” on Chadron Creek, in Sioux county, Nebraska. The purchase price was $76,530, $50,000 of which was paid down, the remaining sum, $26,530, was to be paid on or before the 26th day of June, next ensuing the date of purchase, April 7th, 1883; also a sum equal to the running expenses of the herd from December 26th, 1883, to the day of payment. There was a hill of sale, expressing the terms of sale as above, signed by P. & J., and placed in escrow in a bank at Cheyenne, Wyoming Territory, with the following memoranda: “Placed in escrow with Morton E. Post & Co., this 10th day of April, 1884, to he delivered to said Dakota Stock & Grazing Company, Limited, upon compliance by said company with the terms of within instrument, such compliance to he evidenced by the acknowledgment in writing thereof by Price & Jenks, otherwise to be returned to Price & Jenks.” About the 4th day of June, the agent of D. Co. informed P. & J. personally, at the city of Chicago, that he was on his way to Cheyenne, and the Chadron Creek ranch, for the purpose of closing up said husiuess. On the 6th he wrote them from Council Bluffs, Iowa, requesting them to come or send an order toChadron Creek, whereby, on their part, the business might be settled up; and again on the 10th, he telegraphed them from Cheyenne to the same purpose. On the 11th P. & J. replied by telegraph from Chicago: “Impossible to make delivery or settlement now. Will be in Cheyenne prepared June 26th.”</p> <p>In an action by D. Co, to rescind said contract and recover hack the money paid thereon, Held,</p> <p>1. That D. Co. was not in default by reason of its not paying ox tendering the $26,530 due on the contract of purchase, and a sum equal to the expense of keeping the herd, as provided in the contract, at the hank of Morton E. Post & Co., at Cheyenne, P. & J. declining to give any assurance that the property at Chadron Creek ranch would be delivered, or the dominion thereof turned over to it on that day.</p> <p>2. That P. & J. were in default in failing and refusing to take the necessary steps to enable them to deliver the possession, control, and dominion of the property to D. Co. on the 26th day of June, or sooner, in case D. Co. chose to make payment and “take over” the property before that date, and in failing to-deliver, the property sold on the date last above mentioned.</p> <p>3. That upon the facts and law above stated, D. Co. may rescind the contract of purchase, and recover back the money paid thereon.</p>

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

<p>1. National Banks: jurisdiction. Actions and proceedings against any association nnder the national hanking act may he brought in any state, county, or municipal court, in the county or city in which such association is located, having jurisdiction in similar cases. This applies to a penalty under section 5198 of the United States Rev. Statutes.</p> <p>2. -: -: In such cases the state courts do not exercise a new jurisdiction conferred upon them, hut their ordinary jurisdiction derived from their constitution under the state law. Claflin v. Houseman, 93 U. S., 130.</p>

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

<p>.1. Mechanic’s Lien: construction of statute. The lien of mechanics and material men upon a building or improvement in the construction of which labor or material isused, exists alone by virtue of the statutes creating it. Such statutes are remedial, and must be liberally construed.</p> <p>2. -: description op PROPERTY. An affidavit for a mechanic’s lien, which describes the improvement as situated upon the south-west corner of lots four, five, and six, in a specified block in a city or village, and giving the name of the owner, would be sufficient, under chapter fifty-four of the Compiled Statutes, as to the description of the property sought to be affected by the lien.</p> <p>3. -: -. The fact that an affidavit for mechanic’s lien contains a description of more land than will be subject to the lien will not render the proceeding void, if not done with a fraudulent intent.</p> <p>4. -: improvement on property. Where it was alleged in the affidavit that the lumber was sold to H. E. B. for C. E. B., the owner of the property, and it was shown upon the trial to the satisfaction of the court that the material was furnished for the express purpose of making an improvement upon the property of C. E. B., these facts will support a finding that the material was sold upon a contract, to be used in the improvement named.</p>

<p>Equity protects a parol gift of land equally with a parol agreement to sell it, if accompanied by possession, and the donee, induced by the promise to give it, has made valuable improvements on the property. Neale v. Neale, 9 Wall., 1.</p>

<p>1. negotiable Instruments: guaranty: alteration. One B. sold to D. thirty-six head of ponies for the sum of $900, and' took his note therefor, due in sixty days. B. insisting upon, cash or a guaranty of the note, an arrangement was made with one L., a banker, who executed a receipt and guaranty as follows:</p> <p>Received of B. B. Briggs the following described note for collection: John J. Dunbar, July 28, 1879, $900, Sept. 28,1879, and guarantee the payment of said note.</p> <p>B. B. BrjGGSr Wa. Lamb.</p> <p>Upon an answer alleging the alteration of the guaranty by the erasure of the name of Briggs after execution and delivery of the guaranty by Lamb, Held, That the question must be submitted to the jury, and it was the duty of the jury to answer special interrogatories submitted to them relating to such alleged-alteration.-</p> <p>3. -: -: consideration. Where one L. guaranteed the note of D., in consequence of which one B. delivered certain personal property to D., Held, A sufficient consideration for the guaranty.</p> <p>3. -: -: evidence. A guarantor who has testified in an action on the note by the payee against the maker may, in an action by the payee against such guarantor, be asked on cross-examination if on the former trial he had not testified to certain facts, stating them, and his admission that he so testified will render it unnecessary to introduce proof of such testimony. But if proof that the witness so testified is afterward introduced, ordinarily it will be error without prejudice.</p> <p>4. Trial: verdict. Section 295 of the code provides that, “ When by the verdict either party is entitled to recover money of the ’ adverse party, the jury in their verdict must assess the amount of recovery. ’ ’ A general verdict, therefore, in favor of a guarantor will not authorize a judgment against him based on a special finding of the jury that a specified sum was due the payee from the maker of the note, there being a dispute as to whether the guaranty of L. was jointly with B. or for the whole amount.</p>

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

<p>Appeal from Otoe county, Hayward, J., presiding.</p>

<p>1. Fraud: intent a question of fact. The question of fraudulent intent is generally determined from the existence of other facts which tend to establish it. The question of the existence of facts showing a fraudulent intent are alone for the jury to determine and not for the court. Hedman v. Anderson, 6 Neb., 392.</p> <p>2. -: chattel mortgage. A chattel mortgage of a stock of goods containing a clause by which the mortgagor is given possession, with power of sale in the usual course of trade, the proceeds to go in satisfaction of the mortgage debt, although by our statute made presumptively fraudulent, is not conclusively so, and may, by satisfactory evidence, be shown to have been made in good faith. Turner n. Killian, 12 Id., 580.</p> <p>3. Assignment: preferred creditors. A debtor has the right to prefer his creditors and to pay or secure those preferred. The execution of chattel mortgages to preferred creditors, if made in good faith to secure bona fide debts, even if made to a considerable number of such creditors at or about the same time— no trust being created — will not constitute an assignment for the benefit of creditors if not so intended.</p>

<p>Street Railroad: consent of erectors: vote required. Where the question of giving consent to a street railway company to construct and maintain a street railroad upon the streets of the city of O. was submitted to the electors of said city on the day of the general city election, and the ballot upon that proposition was taken at the same place, by the same election officers, and but one poll list made, and the votes were canvassed and returned, in some of the precincts and wards, upon the same tally sheet and return; but in all of the wards a separate ballot box was prepared into which the vote upon the proposition was deposited, but without other formality to separate the vote from the vote of the general election, it was held that in order to give the required consent the affirmative of the proposition must receive a majority of all of the votes cast a such election.</p>

<p>Ho error in the judgment of the-district court being shown, tho judgment is affirmed,</p>

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

<p>Error to the district court for Cass county. Tried below before Pound, J.</p> <p>on question of damages, cited: Milbourn v. Belloni, 34 Barb., 607. Jones v. Nathrop, 1 Pac. Rep., 435. Griffin v. Colver, 16 N. Y., 489. Milwaukee B. R.v. Kellogg, 94 U. S., 469. Bird-sail v. Carter, 11 Neb., 143. Field on Damages, sec. 281. On relaxation of costs, cited: Maxwell’s Justice, 72. JBliss v. Long, 5 Ohio, 276. Russell v. Giles, 31 Ohio State, 293. Stokes v. LCare, 11 Wis., 389.</p> <p>cited: Faulkner v. LLlamp, 16 Neb., 179. Birdsall v. Carter, 11 Id., 143.</p>

<p>Conveyance: insolvent grantor. The mere fact that a grantor in a deed is insolvent will not render the conveyance of real estate made by him to a creditor upon adequate consideration fraudulent and void.</p>

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

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

<p>1. Justice of Peace: date op judgment: evidence. In an action before a justice of the peace the trial was commenced on the 16th day of February, 1886, following the entry of judgment was the date, “ Feb. 17th, 1886,” Held, That an affidavit showing that the judgment was actually rendered at the latter date might he received, as such affidavit did not vary or contradict the record, hut merely explained to what the date related.</p> <p>2. Costs: motion to retax. Before judgment for costs will he reviewed in the supreme court, there must he a motion to retax sustained or overruled, in whole or in part, by the trial court.</p>

<p>Exemption. Under the provisions of section 531 of the civil code, no property of a debtor is exempt from execution or attachment on a debt for laborer’s wages ; while under the provision of section 531a, the wages of laborers who are heads of families are exempt from the operation of execution or attachment process. In an action by A against B, for wages, and in which a judgment was obtained, and whereon he sought to appropriate the wages of B by process in garnishment, B being the head of a family, and the wages sought to be appropriated having been earned within sixty days immediately prior to the service of process in garnishment, it was Held, That the wages of B were exempt. Section 531a having been enacted as an independent act, long, subsequent to the passage of section 531, and being the last expression of the legislature upon the subject, must prevail.</p>

<p>1. Practice in Supreme Court: error: presumption. In a case brought on error to a district court, to reverse a judgment of that court reversing a judgment of a justice of the peace, and upon examining the petition in error to said justice of the peace and the record certified by him, it appears that there is reversible error assigned, it will be presumed by this court that it was upon such errors that the judgment of the justice was reversed, and not upon other errors assigned, which are believed not to be reversible.</p> <p>2. Justice of Peace: default: trial. A judgment was rendered by a justice of the peace against S. and S., defendants. Within ten days R., attorney of S. and S., appeared before the justice, “offered to confess judgment for the costs in this case, and moved the court to set aside the default heretofore rendered in this case and set said cause for trial,” which offer and motion was in writing and signed by attorney for the defendants. Whereupon the justice made the following entry in the docket of the case: “Motion sustained, default set aside, and trial set for the 8th day of May, 1886, at 1 o’clock in the afternoon of said day,” signed officially by the justice. Notice being given thereof as provided by statute, on the 8th day of May, 1886, parties appeared, and on motion of plaintiffs the j ustice refused a new trial. Held, Error, and the judgment of the district court reversing the same affirmed.</p>

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

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

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

<p>Fraud.: trial: conflicting testimony. Plaintiff alleged in his petition that he had employed defendant S. as agent to purchase certain real estate, for a given price; that under such employment S. purchased the property for a less price than he was directed to give, and caused the title to be conveyed to a third party, who was an intimate friend; that soon thereafter the holder of the legal title conveyed it to S., who, for the purpose of deceiving plaintiff, withheld his deed from record and suppressed the fact of the purchase from plaintiff. The allegations of agency and fraudulent intent and action were denied. In an action against S. for a conveyance of title to plaintiff it was held that the controlling question in the case was one of fact: Was S. employed by H. as his agent for the purchase of the property ? The finding of the trial court upon this question, upon a sharp conflict of testimony, being in favor of defendants, is decisive of the case.</p>

■ Error to the district court for Cass county. Tried below before Chapman, J. on necessity that officer prove his authority to attach, cited : Oberfelder v. Kavanaugh, 11 Neb., 483. Mathews v. Densmove, 43 Mich., 461. Wait Fraudulent Conveyances, Sec. 297. Inconsistent defenses. Derby v. Gallup, 5 Minn., 119. Maxwell’s PI. and Pr., 132. Adams v. Trigg, 37 Mo., 141. Special findings in verdict. National Bank v. Peek, 8 Kan., 660.

<p>1. Limitation of Actions. When it appears on the face of the petition that the cause of action arose at such a period that, under the statute of limitations, no action can be maintained thereon, the defendant may demur to the petition on the ground that the facts stated therein are not sufficient to constitute a cause of action. Peters v. Dunnells, 5 Neb., 460.</p> <p>2. -: COUNTY TREASURER’S BOND. An action on the bond of a county treasurer is barred by the statute of limitations after the lapse of ten years from the time the cause of action accrued.</p>

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

<p>Forcible Entry and Detention. Wfiere the testimony shows that a party is in possession of real estate under a contract of purchase, an action of forcible entry and detainer will not lie to oust him from such possession. Dawson v. Dawson, 17 Neb., 671. O., B. & Q. JR. B. v. Skupa, 16 Id., 341. Streeter v. Ralph, 13 Id., 390. Pettit v. Black, 13 Id., 154.</p>

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

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

<p>Question decided is same as in preceding case.</p>

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

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

Original' action in the nature of quo warranto to test the right of respondents to hold offices as judges of election in the fourth ward of the city of Lincoln under the provisions of Laws 1887, Ch. 39.

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

<p>Forcible Entry and Detention. The action of forcible entry and detainer under the statute being a civil remedy to recover the possession of premises unlawfully and with force withheld from the plaintiff, it will be sufficient to sustain the charge of •forcible detainer, that the party unlawfully in possession refuses to vacate the premises on lawful notice so to do. Campbell v. Cooneradt, 22 Kans., 704, approved and followed. Myers v. Koenig, 5 Neb., 419.</p>

Tried below before Pound, J. 1. But for the stipulation and decree in the former action curtailing the rights of the defendant Stewart’s •dominion, he might lawfully have done all that he is charged with doing; that is, have diked his land against the flow of surface water. There was no course for the water that had been lost in the morass, and it is but ordinary straggling surface water that in times of rain and Hood came out over these lands. These Stewart might •divert.

Tried below before Wakeley, J. The date fixed in the notice must correspond with the termination of the lease. Wade on Notice, Secs. 583-610. Waters v. Young, 11 Ehode Island, 1. Steward v. Harding, 2 Gray, 335. Boynton v. Bodwell, 113 Mass., 531.

<p>1. Jurisdiction: foreign judgment. The judgment of a state court duly authenticated as prescribed by law, where there is jurisdiction, is conclusive as an adjudication upon the subject-matter of the suit.</p> <p>2. -: -: fraud. But fraud perpetrated in securing such judgment, and by which it was obtained, would be a good defense to an action thereon if properly pleaded in the answer, and the decision of an inferior court overruling a demurrer thereto will be affirmed.</p>

.Original application for mandamus. The case is stated in the opinion. The fact that the relators, by the terms of the statute, might make the application to the district court of the county or district where the road was operated, does not take away or interfere with the jurisdiction of this court, and the statute could not take away the jurisdiction of this court. The object of a mandamus is not to supersede legal reitiedies, but rather to supply a lack of them.

<p>Error to tbe district court for Saline county. Tried below before Morris, J.</p> <p>1. Evidence. Oleson v.- State, 11 Neb., 276. Laugh-tin v. Stale, 18 Ohio, 99. Johnson v. State, 17 Id., 593. 2. Power of trial judge. State v. Lee, 80 North Car., 484. Epps v. State, 19 Ga., 118. Shirwin v. People, 69 111., 55. Fisher v. People, 23 Id., 283. Wright v. State, 69 lad., 163.</p> <p>1. Evidence. McCombs v. State, 8 Ohio State, 643. State v. Kinney, 44 Conn., 153. Brown v. People, 36 Mich., 204. Phillips v. State, 9 Humph., 246. People v. Gage, 28 N. W. E., 835. 2. Authority of judge to question witnesses. Hill v. State, 5 B. J. Lea, 730. State v. Lee, 80 N. C., 484. Com. v. Galavan, 9 Allen, 271. Palmer v. White, 10 Cush., 321. Wharton Evidence, Secs. 281, 496.</p>

<p>Error to the district court for Saunders county. Tried below before Marshall and Post, J.J.</p> <p>after citing numerous cases (including City of Elgin v. Eaton, 83 111., 535. G. & E. I. JR. JR. v. Loeb, 118 Id., 203. Hutchinson v. Parkersburg, 25 West Va., 226. Fowle v. N. H. & N. P. P., 107 Mass., 352; 112 Mass., 334. Same v. McAley, II N. E. Rep., 67. Peardon v. San Francisco, 66 Cal., 501. Gottschalk v. P. R., 14 Neb., 550. Penn. R. R. v. Euncan, 111 Penn. State, 352. Blanchard v. Kansas City, 16 Fed. Rep., 444. Higney v. Chicago, Í02 111., 67. Harmon v. City of Omaha, 17 Neb., 548), made the following points:</p> <p>1st. In every case where, under authority of law, a public work for public use has been erected, no specific detail or plan thereof being provided therefor by law, then the plan, method, and details must be adopted by the company or corporation performing the work, and that when it has adopted and completed such work, it will be treated as a permanent structure, and the corporation held to intend to use, occupy, and enjoy such work in the mannér contemplated by its character, and for the time and purpose authorized by its charter; and</p> <p>2d. That, as to any and all persons whose property is not actually taken, but whose property is “damaged” or “injuriously affected” by such public work or structure, as constructed or completed, whether properly or improperly, it owes the duty and obligation, and that this duty and obligation may be enforced by such person by an action to recover such damages.</p> <p>3d. That this action is one complete in itself to recover for all “ damages ” which the “ property ” in its entirety has sustained.</p> <p>4th. That the measure of damages in such cases involves a comparison between the value of the property before the erection of the public work and after the completion in the manner in which it was done.</p> <p>5th. That this action accrues to the owner of the property at the time of the erection of the structure.</p> <p>6th. That no subsequent grantee of such owner can maintain any action for any injury to the same property, based upon the conditions or character of such structure.</p> <p>7th. That this action, under the constitution, for all damages accruing to' the plaintiff's property, having accrued in 1877, it is now barred by the statute of limitation.</p> <p>8th. That general public policy, adopted by the people, engrafted upon the fundamental law of the state, is, that umultiplicity of suits” against corporations, private or municipal, engaged in carrying on works for public uses, shall be avoided. That all such corporations shall, once for all, on demand of an injured party, make just compensation for all damages they may inflict upon private property by an act, proper or improper, done by them in the exercise of the powers conferred upon them to construct and maintain such work.</p> <p>To sum up this whole matter in a sentence* we say that defendant’s bridge and approaches are legally located, and defendant has a legal right to maintain a bridge and approaches at this point, but the bridge and approaches are not properly built, and this improper construction causes gorges, overflows, and consequent damage to adjoining proprietors in the spring of the year, and therefore the bridge and approaches are unlawful — a nuisance periodically, recurring at long intervals — a nuisance in the common legal significance of the word — and by the authority of at least every* well considered case upon the subject, a new cause of action accrues for each recurring damage. Uline v. N. Y. O. R. R., 101 New York, 98. Gould on Waters, section 412, and cases cited. New Salem v. Eagle Mill Co., 138 Mass., 8. Union Trust Company v. Cuppy, 26 Kan., 754. Brown v. Cayuga & Susquehanna R. Co., 12 N. Y., 486. Conhoeton Stone Co. v. B., N. Y. & E. R. Co., 52 Barb., 390. Beehwith v. Grisioold, 29 Barb., 291. Buryea v. Mayer, 26 Hun, 120, 122. Waggoner v. Jermaine, 3 Denio, 306. Mahon v. N. Y. C. R. Co., 24 N. Y., 658. Van Hoosier v. H. & St. J. R. Co., 70 Mo., 145. ■ Biehson v. C, R. I. & P. Ry. Co., 71 Mo., 575. Bare v. Hoffman, 79 Pa. St., 71. Wheatley v.' Chrisman, 24 Pa.St., 298. Fell v. Bennett, 5 Atlantic Rep., 17 (Pa.) Cooper v. Hall, 5 Ohio, 320. MeElroy v. Goble, 6 O. S., 187. Thayer v. Brooks, 17 Ohio, 489. Delaware & Raritan Canal Co. v. Wright, 21 N. J. L., 469. Delaware & Raritan Canal Co. v. Lee, 22 N. J. L., 243. Prentiss v. Wood, 132 Mass., 486. Staple v. Spring, 10 Mass., 72. Carl v. Sheboygan & F. D. L. R. Co., 1 N. W. R., 295 (Wis.) Ramsdale v. Foote, 13 N. W. R., 557 (Wis.) Cain v. G, R. I. & P. R. Go., 3 N. W. R., 736 (la.) Drake v. O., R. L. & R. R. Co., 19 N. W. R., 215 (ia.)</p>

<p>Practice in Criminal Cases: continuance. Plaintiff in error was prosecuted upon information filed by the district attorney, charging, in two counts, the forging, and uttering as true and genuine, a promissory note. The information was filed on the 11th day of October. He was placed upon his trial on the 19th day of the same month. Prior to the day of trial he'filed a motion for a continuance, and which was supported by his affidavit, in which it was alleged that he could prove by four witnesses, naming them, all non-residents of the state and none of whom were present, that the notes were placed in his hands for the purpose of sale by one B., and that, as requested, he sold the notes simply as an accommodation, and returned all the money to the person for whom the sale was made; the residence of two of the witnesses out of the state was given, so that their depositions might be taken. The proposed evidence being material, and sufficient time for procuring their deposition not having elapsed, it was Held, That the district court erred in overruling the motion for a continuance.</p>

<p>1. Pleading: answer: waiver. The filing of an answer by which issue is joined upon all the averments of the petition, is a waiver of exceptions to the decision of the court in overruling a special demurrer.</p> <p>2. Depositions: authority of notary public. The fact that a notary before whom a deposition is taken has his office in a room occupied by the attorneys who represented the party taking the deposition, is not of itself sufficient to warrant the exclusion of the deposition when offered to be read upon the trial. The practice of taking depositions in the office of an attorney interested in the cause is objectionable, yet there is no law to prohibit it.</p> <p>3. Continuance. A motion for a continuance is addressed to the sound legal discretion of a court, and its decision thereon will not be reversed unless there has been an abuse of such discretion.</p> <p>4. -. Where an affidavit in support of a motion for a continuance on account of the absence of a document necessary to be used in the cause as evidence is filed, it should affirmatively appear thereby, not only that the party seeking the continuance has been diligent in trying to procure such document, but that it is at least probable that the evidence can be had in case the adjournment should be granted.</p>

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

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

<p>Appeal from the district court of Dodge county. Tried below before Post, J.</p> <p>cited: Donner v. Redenbaugh, 16 N. W. R., 127. Thimes v. Stumpff, 33 Kan., 53. Stout v. Rapp, 17 Neb., 462. Dennis v. Omaha National Bank, 19 Id., 675. McGoon v. Ankeny, 11 111., 558. Hudson v. Malloy, 40 Cal., 299. JBraclshaw v. Hurst, 11 N. W. E., 672. Ott v. Sprague, 27 Kan., 620.</p>

<p>. Appeal from the' district court of Otoe county. Tried below before Pound, J.</p> <p>cited: Ass. Reformed Church v. Theological Seminary, 4 N: J. Eq., 77. Lucas v. Case, 9 Bush, 302. Qroesbeech v. Dunscomb, 41 How. Pr., 302. Ferraría v. Vasconcelles, 23111., 56. First Presbyterian Church v. Cong. Society, 23 Iowa, 567. Winebrenner v. Colder, 43 Penn. State, 244. Perry on Trusts, Secs. 727, 734. Feizel v. Trustees, 9 Kan., 592.</p> <p>«cited: Luoas v. Case, 9 Bush., 297. People v. German Church, 53 N. Y., 103. German Reformed Church v. Seibert, 3 Penn.' State, 282. Ren v. Bolton, 12 N. J. Law, 206. Burr el v. Church, 44 Barb., 282. Miller v English, 2 Plalst. Ch., 304.</p>

<p>Constitutional Law: boundaries on county. The act of the territorial legislature of March 7th, 1855, entitled “An act defining the boundaries of counties therein named, and for other purposes,” in so far as it defines the boundaries of Blackbird county, is inoperative and void, as being in violation of the act of Congress approved May 30, 1854, entitled “An act to organize the territory of Nebraska,” and which reserved from within the boundaries of the territory the Indian reservation of which said Blackbird county was a part.</p>

<p>1. Larceny: information :, An information charging a defendant with the crime of larceny in the following form : “ That on oar about the 22d day of May, in the year of our Lord one thousand eight hundred and eighty-five, one James F. McCoy, late of said county of Madison, and state aforesaid, unlawfully, willfully, and feloniously, one brown gelding of the value of $150, of the personal property of one Victor Cavalin, did convert to his own use, with the intent to steal the same, the said James F. McCoy, then and there being the bailee of said property,” Held, To be insufficient to support a verdict of guilty and judgment thereon as not alleging that the crime was committed within the jurisdiction of the court in which the information was filed.</p> <p>2. -: verdict. The verdict by which the defendant was found guilty of larceny “ in manner and form as charged in the first count or paragraph of the information,” without ascertaining the value of the property alleged to have been stolen, is insufficient, under the provisions of section 488 of the criminal code, to sustain a sentence of imprisonment in the penitentiary.</p>

<p>Error to the district court for Johnson county. Tried below before Broady, J.</p> <p>cited: Clarice v. O. & 8. W Ii. B., 5 Neb., 331. Civil code, Sec. 92.</p> <p>cited: 1 Nash. PL and Pr., 142. Turner v. Killian, 12 Neb., 580. Burgess v. Everett, 9 Ohio State,, 429. Tessier v. B,eed, Jones & Co., 17 Neb., 105.</p>

<p>Fraud: evidence. The evidence examined, and Held, To sustain the finding and decree of the district court, and not to present a case of fraud or undue influence.</p>

<p>1. Ditches and Drains: jurisdiction of county board. In a proceeding to establish a drain or ditch, under chapter 89 of Compiled Statutes, the jurisdictional facts are, first, a petition signed by one or more owners of land to be affected by the proposed ditch; second, the bond provided by statute; third, that the proposed improvement is necessary, and will be conducive to the health, convenience, and welfare of the public; and fourth, the statutory notice.</p> <p>2. -: ■ -. The failure of the county bqard to find that the signers of the petition are owners of lands to he affected is not j urisdictional.</p> <p>3. --: -: objections. A party objecting to the construction of a proposed ditch should act with reasonable promptness in urging his objection, and should not wait until the completion of the improvement before alleging an entire want of authority to make the same.</p>

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

<p>1. Schools: construction or statute. The -word “ school ” in Sec. 2, Art. 1., Chap. 77, Comp. Stat., means an institution of learning, and is not limited to the lower grades of schools.</p> <p>2. -: exemption prom taxation. Property used exclusively as an institution of learning is not subject to taxation while thus used.</p>

<p>1. Cities of Metropolitan Class: chief of police. The appointment of the respondent, as chief of police of the city of O., by the board of fire and police commissioners appointed by the governor under section 145 of an act entitled “ An act. incorporating metropolitan cities, and defining, regulating, and prescribing their duties, powers, and government,” approved March 30, 1887, under the facts and circumstances as set out in the answer, Held, A legal appointment within the scope and meaning of the said act.</p> <p>2. -: constitutional law. The provision of the above-mentioned act, whereby it is made the duty of the governor to appoint a board of fire and police commissioners for each city of the metropolitan class ; Held, Not to be repugnant to the constitution.</p>

<p>Error to the district court for Dakota county. Tried below before Crawford, J.</p> <p>cited: Burt v. Saxon, 1 Hun., 551. 2 Jones on Mortgages, Secs. 1189-1191. Hilliard, Secs. 449, 585. Union Central life Ins. Co. v. Bonnell, 35 Ohio State, 365. Maxwell’s PI. and Pr., 310, 311. 1 Bate’s Pleading, 577. Scheibe v. Kennedy, 25 N. W. R., 646.</p> <p>cited : 1 Nash PI. & Pr., 344. 2 Estee PI. & Pr., 250. Maxwell’s PI. & Pr., 250. Pope v. Hooper, 6 Neb., 180. Mundy v. Whittemore, 15 Id., 650. Miller’s PI. & Pr., 173. Insurance Co. v. Bonnell, 35 Ohio State, 365.</p>

<p>Error to the district court for Platte county. Tried ■below before Post, J.</p> <p>cited: 1 Redfield Railways, 548. Shearman & Redfield Negligence, 578. Stevens v. P. B. Co., 18 N. Y., 422. Coni. Imp. Co. v. Stead, 95 U. S., 165. R. R. Co. v. Houston, Id., 697. Pence v. R. R. Co., 19 N. W. R., 785. Chase v. R. R. Co., 5 Atlantic Rep., 771. Williams v. R. R. Co., 24 N. W. R., 422.</p> <p>cited: Railroad Company v. Stout, 17 Wall., 657. A. & N. R. R. Co. v. Bailey, 11 Neb., 332. City of Lincoln v. Gillilan, 18 Id., 115. Hutchinson v. R. R., 21 N. W. R., 212. Greany v. R. R. Co., 5 N. E. R., 425. Ernst v. R. R. Co., 35 N. Y, 9.</p>

Exceptions filed by county attorney of Richardson county (Broady, J., presiding), under the provision of sections 515 ei seq., of the criminal code.

<p>1. Justice of Peace: appearance. A party who has appeared in an action before a justice of the peace and entered into an agreement continuing the cause, may appeal from the judgment rendered against him before such justice. Gleghorn v. Waterman, 16 Neb., 230. Orippenv. Church, 17 Neb., 306.</p> <p>2. -: APPEAL. Under Sec. 1008 of the code as it existed in 1885 a party appealing from the judgment of a j ustice of the peace had until the second day of the succeeding term of the district court in which to file the transcript, and the plaintiff had twenty days thereafter in which to file his petition. Therefore, where an appeal had been properly taken by a defendant, a motion made by.him on the first day of such term to dismiss the cause for want of prosecution was premature, and should have be*,n overruled.</p>

<p>Error to tlie district, court for York county. Tried below before Norval, J.</p> <p>cited : Jackson v. Timmerman, 7 Wend., 436. Seward v. Jackson, 8 Cow., 406. Hilliard New Trials, Sec. 127. Williams v. Harts-horn.- 30 Ala., 211. 3 Sutherland Damages, 578.</p> <p>cited: 3 Sutherland Damages, 592. ' Drew v. 'Beall, 62 111., 165.</p>

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

This was a rehearing of case reported 20 Neb., 566. The former judgment was by a majority of the court (Maxwell, Ch. J., and Cobb, J.), adhered to. Reese, J., dissented, and filed the opinion which follows, Maxwell, Ch. J., commenting thereupon, and expressing the views of the majority of the court on the law of the case. The cases cited by counsel are commented upon in the opinion of Judge Reese.

<p>Ekrok to the district court for Yalley county. Tried below before Tiffany, J.</p> <p>cited: State v. Chwrm, 19 Mo., 233. State v. Loche, 35 Ind., 419. Commonwealth v. Young, 15 Gratt., 664. Enders v. People, 20 Mich., 233. State v. Saunders, 63 Mo., 482. Maxwell’s Crim. Proc., 129. 3 Greenleaf Ev., Sec. 88. Abbott v Omaha Smelting Co., 4 Neb., 420.</p> <p>cited Maxwell’s Crim. Proc., 130. 2 Chitty Crim. Law, 1002. Credit Fonder v. Rogers, ■ 10 Neb., 184. People v. Hughes, 29 Cal., 260.</p>

<p>Error to the district court for Johnson county. Tried below before Broady, J.</p> <p>cited: Dinsmore v. Stimbert, 12 Neb., 435. Grimes v. Farrington, 19 Neb., 45. Frankhouser v. Ellett, 22 Kan., 127. Bonns v. Carter, 20 Neb., 577. Kay v. Noll, Id., 389. Read v. Wilson, 22 111., 377. Jones’ Chattel Mortgage, Sec. 351. Till’s Case, 3 Neb., 262. Roop v. Herron, 15 Neb., 78.</p> <p>cited: Herman Chattel Mortgages, Sec. 104. Beal v. Williamson, 14 Ala., 55. Bioh v. Levy, 16 Md., 74. Boop v. Herron, 15 Neb., 73. Nixon v. Nash, 12 Ohio State, 647. Belknap v. Wendell, 31 N. H., 92; Wallaeh v. Wylie, 28 Kan., 138. ' Winner v. Hoyt, 28 N.' W. R., 380.</p>

Error -to the district court for York county. Tried below before Norval, J. Contract was compromise and settlement. Baldwin v. Davis, 63 Iowa, 231. Courts will not disturb it. Prichard v. Sharp, 51 Micb.,432. Action should have been on contract, not note. Billings v. Vanderbeck, 23 Barb., 546. cited: 2 Parson Contracts, *681. Goodrich v. Stanley, 24 Conn., 613.

<p>1. Counties: crimes in unorganized counties : venue. Under Chap. 10 of the Revised Statutes of 1866, all unorganized counties were attached to the nearest organized county directly east, for election, judicial, and revenue purposes ; therefore, where a murder was alleged to have been committed in the county of Sioux, the party accused of committing the same could not be indicted and tried for the offense in Cheyenne county, it being directly south of Sioux county.</p> <p>2. Criminal Law : lost indictment. Inhere the record of the indictment against a party accused of committing a crime has been omitted or lost or destroyed, the court will receive secondary evidence as to the essential facts stated in the indictment which conferred jurisdiction on the trial court.</p>

Tried below before Neville, J. upon the question of the effect of the discharge in bankruptcy, cited: Croman v. Cotting, 104 Mass., 245. Seymour v. Street, 5 Neb'., 93. On statute of limitations. Blodgett v. Utley, 4 Neb., 25. Hedges v. Poach, 16 Id., 673. Sage v. Ha/wley, 16 Conn., 106. Campbell v. White, 22 Mich., 193. Gilman v. Cutts, 3 Foster, 376. cited: Commonwealthv. Brenneman, 1 Rawle, 311. Millet' v. Howell, 2 111., 499. Perkins v. Lougee, 6 Neb., 220.

<p>1. Murder. Intent or purpose to kill is essential to constitute the crime of murder in the first or second degree as defined by sections three and four of the criminal code, and this intent must be specifically and directly averred as part of the description of the offense in every indictment for either of those crimes.</p> <p>2. -: averments of indictment. An averment that the accused “ feloniously, purposely, and of deliberate and premeditated malice ” did make an assault on the deceased, and that he then and there “ feloniously, purposely, and of his deliberate and premeditated malice did shoot ” the deceased with a gun loaded, etc., inflicting a mortal, wound, of which the. deceased then and there instantly died, does not satisfy the requirements of the law ; for though the accused may have purposely and of deliberate and premeditated malice assaulted the deceased and shot him, it does not follow that the shooting was with the design and purpose to produce death.</p> <p>3. -: -. Where the purpose to kill is not averred by way of description of the offense, the omission cannot be aided by the ordinary formal conclusion of the indictment, which avers that “ so ” the jurors do find and say that the accused “ did in manner and form aforesaid feloniously, purposely, and of his deliberate and premeditated malice kill and murder” the deceased. Such allegation being nothing more than a legal conclusion arising from the facts previously stated, cannot cure any defects in the premises on which it assumes to be predicated.</p> <p>4. -: Instruction numbered thirteen copied from instruction numbered nine in Williams v. The State, 6 Neb., 334, and printed therein at page 336, criticised, and the concluding words thereof held unnecessary.</p>

<p>Error to the district court for Buffalo county. Tried below before Morris, J., sitting for Hamer, J.</p> <p>cited: Stephen’s Evidence, Art. 56. 1 Greenleaf Ev., Sec. 55. 1 Best Ev., Sec. 261.</p>

This was an action commenced in the Cass county district court June 19, 1886, by the Commercial Bank of Weeping Water against Lawrence Holland and Tewksbury & Cooper, to recover the sum of $7,474.17, made up as follows: Balance upon a $4,000 note — $2,474.17. One note of $3,000, given by Holland to Tewksbury & Cooper and by them indorsed to the bank. Overdraft on defendant’s bank account, $2,000.

<p>1. Parties: rights op interventor. Defendant in error bank commenced its action in the district court of Saline' county against defendants in error Holland, upon a promissory note, executed by said Hollands to plaintiff in error, and by him alleged to have been endorsed to the bank. Plaintiff in error appeared and presented his answer, by which he denied the ownership of the notes by the bank, and alleged that he was the owner thereof and entitled to the proceeds of any judgment rendered thereon. He also filed his application to be admitted as a party to the action. The application was refused, and he was not permitted to file his answer. Held, Error.</p> <p>2. Plea in Abatement: waiver op error. At that time an action was pending in the district court of Cass county, instituted against him by defendant bank. After having been denied the right to intervene in the case pending in Saline county, he filed his answer in the district court of Cass county, in the cause therein pending, wherein he charged the bank with the conversion of the note upon which the suit had been brought in Saline county, and demanded judgment for the amount thereof, and which action is now pending. Held, A waiver of the error of the district court of Saline county, and an abandonment of his right to prosecute error thereon in the supreme court.</p>

Tried below before Wakeley, J. cited; Carney v. Carney, 7 Baxter, 284. Riehl v. Evansville Foundry Assn., 3 N. E. Rep., 633. Hunsinger v. Hoff&r, 11 Id., 463. Testimony of assignor as to his intention to defraud, inadmissible. Monteith v. Bax, 4 Neb., 166. Sixth instruction asked for by plaintiff below should not have been given. Bump Fraudulent Conveyances (3 Ed.), 208. Fifth instruction given by the court is misleading. City of Orde v. Childs, 11 Neb., 252.

Original application for mandamus, and submission of the same under Sec. 567 of the civil code. cited: Mayor v. Newton, 23 Ala., 660. Traver v. Merrioh Co., 14 Neb., 333. Lowell v. Boston, 111 Mass., 463. Guernsey v. Burlington, 4 Dill., 374. Township v. Beasley, 94 U. S., 313. Bank v. Chillieothe, 7 Ohio, 354. Hubbard v. Sadler, 10 N E. Rep., 426. Mills v. Gleason, 11 Wis., 493. State v. Madison, 7 Id., 688. Wyandotte v. Zeitz, 21 Kan., 653.

<p>Error to the district court for Cherry county. Tried below before Tiffany, J.</p> <p>Kesee v. O. & N. W. R. R., 30 Iowa, 83. Slossen v. Burlington Ry., 14 N. W. R., 244. Kellogg v. Railroad, 26 Wis., 230. Fahn v. Reiohart, 8 Wis., 106. 1 Thomp. on Neg., 119.</p> <p>cited: B. & M. R. R. v. Westover, 4 Neb., 276. Kellogg V. a & K W. R.B., 26 Wis., 230. Moak’s Underhill on Torts, 287. Thompson Neg., 167-169.</p>

<p>Original application for mandamus.</p> <p>cited: G. S., 1873, Sec. 114. Iowa Code, Sec. 1275. Right of eminent domain. JB. & O.R. R. Co. v. Koontz, 4 Am. & Eng. Railroad Cas., 108. Dietrich v. Lincoln & Northwestern R. R. Co., 13 Neb., 361. C., St. P., M. & O. R. R. Co. v. Limdstrom, 16 Id., 254. Right to the lands in question. Gottschallc v. Lincoln & Northwestern R. R. Co., 14 Neb., 390. Mills on Eminent Domain, 351. Hobart v. Ford, 6 Nev., 77. Perm. R. R. v. N. Y. R. R., 23 N. J. Eq., 157.</p> <p>cited: Rorer on Railroads, 38. Atkinson v. M. & C. R. R., 15 Ohio State, 33. Hull-v. G, B. & Q. R. R., 21 Neb., 371. Halbert v. St. Louis, K. C. & N. R. R. Co., 45 Iowa, 23.</p>

<p>1. Slander.: issues : evidence. In an action for damages for defamation of. character, when the speaking of the words are admitted and their truth alleged in justification, it is error without prejudice to permit a witness to testify to the speaking of words of substantially the same meaning and import, and give as his understanding of the words used the same meaning as is charged in the petition and justified in the answer, that issue being settled by the pleadings.</p> <p>2. Error Without Prejudice. Error cannot he predicated upon the ruling of a trial court admitting or excluding immaterial testimony, when it is apparent that no prejudice could result to either party, whatever the ruling might he.</p> <p>3. Evidence: reputation. When a witness is called for the purpose of testifying to the general reputation of a party for chastity, his examination-in-chief should be confined to general reputation, and not as to what particular persons, or how many, the witness may have heard speak of the person whose reputa- ' tion is sought to be attacked.</p> <p>4. Instructions: exceptions. A general exception to instructions given is insufficient. Each specific instruction which is claimed to be erroneous must be distinctly pointed out and specifically excepted to.</p> <p>5. Evidence examined, and Held, To sustain the verdict.</p> <p>6. A Eew Trial will not be granted on the ground of newly discovered evidence, when such evidence is merely cumulative.</p> <p>7. Damages awarded by the jury, Held, To be excessive.</p>

<p>1. Appeal: motion fob new trial: bill of exceptions. Where plaintiff filed his petition in equity in the district court, and to which defendant presented a demurrer, the ground of demurrer being that the petition did not state the facts sufficient to constitute a cause of action, and such demnrrer being sustained, it was held that neither a motion for a new trial nor bill of exceptions was necessary in order to obtain a review in the supreme court by appeal.</p> <p>2. Mechanic’s Lien: affidavit. An affidavit for a mechanic’s lien in the following form:</p> <p>“State of Nebraska,! Chase County. Iss’</p> <p>“J. P. Hays, being first duly sworn, on his oath says, that tho foregoing account of work, labor, and skill is a true and correct account of the work, labor, and skill done and performed and furnished by this affiant for the said Thomas Mercier, under a verbal con tract for the erection of a storehouse building for tho said Thomas Mercier, upon the following described lot, piece, or parcel of land, viz.: Lot number one in block number four in tbe town of Imperial, Chase county, Nebraska, according to the-recorded plat and survey of said town, now of record in the office of the county clerk of said county. And this affiant further says that he has and does hereby claim a lien on the said premises as above described for the full amount of his said account for labor, work, and skill, to-wit, the sum of $161.50, together with interest thereon at the rate of 7 per cent per annum from this date, and further affiant says not.” Se Id, Sufficient when assailed by demurrer.</p>

<p>Appeal from the district court of Nuckolls county. Heard below before Morris, J.</p> <p>cited: Jones on Mort., Sec. 1474. Short v. Nooner, 16 Kan., 220. Webb v. Moselton, 4 Neb., 313. Lyon v. MaCuffey, 45 Am. Dec., -675.</p> <p>cited: White Lalte Lamber Co. v. Stone, 19 Neb., 402. Jaelcson v. Austin, 15 Johns., 477. Boone on Mortgages, Sec. 75. Claris v. Butler, 32 N. J. Eq., 664. Campbell’s Appeal, 36 Penn. State, 247. Lyle v. Ducomb, 5 Binn., 585.</p>

<p>Exceptions from Madison county.</p>

<p>Error to the district court for Red Willow county. Tried below before Gaslin, J.</p> <p>cited: Lancaster v. State, 9 Tex. App., 393. People v. Gates, 13 Wendell, 311. Hite v. State, 9 Yerg., 357. Grummond v. State, 10 Ohio, 510. U. S. v. Keen, 1 McLean, 429. Wharton Cr. PI. and Pr. (8 Ed.), 184.</p> <p>cited: Sec. 412, Crim. Code. Guthrie v. State, 16 Neb., 671. State v. Barlcer, 64 Mo., 282. State v. Myers, 8£ Id., 558.</p>

<p>Appeal from Justice of Peace: undertaking. In an action pending before a justice of the peace, judgment was rendered in favor of plaintiff and against defendant. Defendant appealed to district court. At a. succeeding term of the district court plaintiff moved the court for an order requiring a further undertaking on appeal. The motion was sustained and defendant ordered to give a further undertaking within twenty-five •days, and that if not filed in said time the appeal to he dismissed. The undertaking was not filed within the time prescribed by the order, but at the succeeding term of court defendant appeared and filed a showing in effect that the security upon the undertaking for appeal was sufficient, and asked further time in which to file additional undertaking, if one were required. Time was granted by the district court. Held, No error, the first order requiring the additional security not being complied with and the court not having lost its jurisdiction of the case.</p>

<p>1. Parties: The real party in interest under section 29 ■ code is the person entitled to the avails of the suit. of the</p> <p>2. -: assignee. A mere assignee having no interest in the result of the suit, but who obtains an assignment upon a promise to pay the assignor the amount he may derive from the action, is not the real party in interest under section 29, and cannot (maintain the action.</p> <p>3. Mechanic’s Lien: defense. While the owner ‘of a building is liable to material men and laborers under our mechanic’s lien law, for material furnished or labor performed for a contractor on such building, yet, as a different rule prevails for asserting such lien, the owner may plead as a defense the fact that the labor or material was furnished to a contractor and that no lien has been obtained.</p>

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

<p>Appeal from the district court of Lancaster county. Tried below before Hayward, J.</p> <p>cited: Williams v. Gash, 27 >Ga., 507. Bannon v. Brandon, 34 Penn. State, 263. Wilson v. Bicharás, 1 Neb., 342. , Hearst v. Púgil, 44 Cal., 230. Green v. Turner, 38 Iowa, 112. Frink v. LeBoy, 49 Cal., 314. Jones Mortgages, Secs. 1152, 1153, and 1159.</p> <p>cited: Grawford v. Taylor, 42 Iowa, 260. Clark v. Potter, 32 Ohio State, 49. Knowlton v. Walker, 13 Wis., 264. Waldo v. Bice, 14 Id., 286.</p>

<p>1. Negotiable Instruments: draft: acceptance. The drawee of a draft wrote across the face thereof the words, “ Excepted Sept. 18. L. B. Maben. ” Séld, A valid acceptance.</p> <p>2. -: -: evidence. Parol evidence that such was the purpose of the writing, not being inconsistent with the writing itself, is admissible.</p>

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

<p>Practice in Supreme Court. The plaintiff in error filed a petition in error in the supreme'court, upon which a summons in error was issued and served on the defendant, hut failed to file a transcript of the proceedings of the trial court. The defendant afterwards filed a motion to dismiss for the failure to file a transcript, and served notice upon the plaintiff’s attorney of the pendency of such motion. Held, That the motion must be sustained.</p>

<p>Appeal from- the district court of Lancaster county. Tried below before Pound, J.</p> <p>cited: Wallingford v. Burr, 15 Neb., 207. McDonald v. Hewitt, 15 John., 349. Joyce v Adams, 4 Seld., 291. Langdell’s Select Cases, 464, -529, 1010.' Benj. oh Sales, Sec. 374-5. Bhindler v. Houston, 1 N. Y'., 261. CooJcev. Millard, 5 Lans., 243. Artcher ©. Zeh, 5 Hill, 205.</p>

<p>1. Mortgage Foreclosure: consideration: evidence: In an action to foreclose a mortgage given for part of the purchase . money, the defenses were failure of consideration and fraudulent representations in the sale of the property. Held, That the proof failed to establish the defenses.</p> <p>2. -: priority oe liens. Where it is sought to give the lien of a junior mortgage precedence over the lien of a senior mortgage, the claim must be based either on an agreement to that effect or on the superior equity of the junior mortgage.</p>

<p>Error to tbe district court for Pierce county. Tried below before Tiffany, J.</p> <p>cited : Murphy v. Lyons, 19 Neb., 689. Forbes v. Hyde, 31 Cal., 342. Filis v. Karl, 7 Neb., 381. Blair v. West Point Mnfg. Co., 7 Id., 146. McGavock v. Polloek, 13 Id., 536. In re Dill, 32 Kan., 668.</p> <p>cited : Crowell v. Johnson, 2 Neb., 156. Neligh v. Keene, 16 Id., 408. Tracy v. Sachet, 1 Ohio State, 54.</p>

<p>cited: Adams v. Neb. City Nat’l Bank, 4 Neb., 370. Ahlman v. Meyer> 19 Neb., 68. Jones Chattel Mort., Sec. 426. Huebner v% Koebke, 42 Wis., 319. Smith v. Post, 1 Hun, 516. Wells v. Chapman, 13 N. W. R., 842. Bobinson v. Pitch, 26 Ohio State, 663.</p> <p>cited: Boy v. Goings, 96 111., 361. Jones Chattel Mort., Sec. 431.</p>

<p>Error to the district court for Buffalo county. Tried below before Hamer, J,</p> <p>cited: Dobson v~ Dobson, 7 Neb., 299. Horn v. Miller, 20 Id., 103. Sec*. 1001, Civil Code.</p> <p>cited: Wilson v. Stories, 2: Southwestern Rep., 346.</p>

<p>Error to the district court for Dodge county. Tried below before Post, J.</p> <p>cited: Poplin v. Mwndell, 27 Kan., 138. Merrick v. Wallace, 19 111., 486. Kiser v. Houston, 38 Id., 252. Brooke’s Appeal, 64 Penn. State, 127. Gill v. Fauntleroy, 8 B. Mon., 177. Jordan v. Hamilton Co. Bank, 11 Neb., 501. Mutual life Ins. Co. v. Dake, 87 N. Y., 257.</p> <p>cited: Barney v. McCarthy, 15 Iowa, 510. Whalley v. Small, 25 Id., 184. Sawyer v. Adams, 8 "Vt., 172. Speer v. Loans, 47 Penn. State, 144. Handley v. Howe, 22 Maine, 560.</p>

<p>1. Action on Account: verdict. Where in an action on an account and set-off the testimony is nearly equally balanced, the verdict will not be set aside as being against the weight of evidence.</p> <p>2. Sale: oral acceptance oe order eor goods. Where there is testimony tending to show that an order in favor of one S., upon the firm of C. & C., was orally accepted by said firm, and paid to S. in goods, it is not error for the court to refuse to instruct the jury that, notwithstanding the oral acceptance of said order by C.' & C., they could sue said S. for the value of the goods obtained by him upon said order.</p>

<p>Appeal from the district court of Richardson county. Heard below before Broaey, J. ,</p> <p>cited: Renard v. Brown, 7 Neb., 449. Miller v. Finn, 1 Id., 301. Jefferson v. Coleman, 9 Western Reporter, 74. Bresnaha/n v. Bresnahan, 46 Wis., 385.</p>

<p>Error to the district court for Red Willow county. Heard below before Gaslin, J.</p> <p>cited: Code, Sec. 932. Paine v. Moreland, 15 Ohio, 444. Taylor v. Carney, 4 Kan., 548. Cooper v. Reynolds, 10 Wall., 308.</p>

<p>Eeeoe to the district court for Douglas county. Tried below before Wakeley, J.</p> <p>cited: Sehlueter v. Raymond Pros., 7 Neb., 281. Tingley v. Dolby, 13 Id., 371. Wilson v. Bwrney, 8 Id., 39.</p>

<p>Appeal from the disti’ict court of Fillmore county. Heard below before Morris, J.</p> <p>cited: Tiedeman on Real Property, Sec. 812. Go oh v. Brown, 34 New Hamp., 460. Wheelvrright v. Wheelwright, 2 Mass., 452. Clark v. Gifford, 10 Wend., 313. Barlow v. Hinton, 1 A. X. Marsh, 97. Newlin v. Beard, 6 W. Va., 110. Rhodes v. School District, 30 Maine, 110.</p>

<p>Error to the district court for Madison county. Tried below before Crawford, J.</p> <p>cited : Hall v. Parker, 39 Mich., 287.- Greene v. Kindy, 43 Mich., 282. Harris v. Simpson, 14 Am. Dec., 105, note. 5 Wait’s Actions and Defenses, 191. U S.v. Linn, 15 Peters, 290.</p> <p>cited : Bean v. Parker, 17 Mass., 591. Bv/nn v.Jetmore, 70 Mo., 228. Wood v. Washburn, 2 Pick., 24. Bussell v. Awnáble, 109 Mass., 72.</p>

<p>Error to the district court for Harlan county. Tried, below before Gaslin, J.</p> <p>cited: 1 Randolph Commercial Paper, Sec. 168. 1 Daniels Neg. Inst., Sec.. 533. Parsons Notes and Bills, 590. Levey v. Lank of U~ 8., 1 Bin. (Pa.), 27. Bank of U. 8. v. Bank of Georgia, 10 Wheaton, 333. Ellis v. Ohio Life Ins. Co., 4 Ohio. State, 633.</p> <p>cited: Natl. Bank-of North America v. Bangs, 106 Mass., 441. Ellis v. Ohio-Life Insurance Co., 4 Ohio State, 650. Terry v. Bissell,.. 26 Conn., 23. Third National Bank v. Allen, 59 Mo., 311. Espy v. Bank, 18 Wall., 604. Merchants Bank v. McIntyre, 2 Sandf., 431.</p>

<p>1. Railroads: injury to employe. The foreman of a company of men engaged in the business of repairing bridges, water-tanks, and telegraph lines on a line of railway, who has power to control and direct the movements of his men, will render the company liable for acts of negligence committed by him in the course of his employment, whereby one of the men under his control, without his fault, is injured.</p> <p>2. -: -: negligence oe foreman. A company of men under the control of a foreman engaged in the business of repairing bridges, water-tanks, and telegraph lines along a line of railway, in going to and from their labor on a hand car on such railway, are under the control of such foreman, and his principal is liable for his negligence occurring in the course of his employment.</p> <p>3. Vei'diet, Held, To be sustained by sufficient evidence.</p> <p>4. Instructions set out in the opinion, HeZd, To have been properly given.</p>

<p>Mortgage Foreclosure: defense : consideration. In' an action to forclose a mortgage given to secure two promissory notes, each for the sum of $250, with interest, it appeared as a defense that the notes were given for an alleged stock of goods. ' having hut little or no intrinsic value and salable only as auction goods, the real value of which did not exceed one hundred dollars. Held, That the decree will be reduced to one hundred dollars, with interest from the date of-sale.</p>

<p>«Counties: estimate foe taxes. Where an account' has been duly allowed against a county in a case where the county board had jurisdiction, it is the duty of such board to include the same in its estimates of the taxes to be levied for the ensuing year, and if it fails to do so it may be compelled by mandamus to perform its duty.</p>

<p>1. Witnesses: examination: opinions. A witness on his examination-in-chief, or re-examinatio'n by the party calling him, when on account of his possessing special knowledge, skill, or experience, is permitted to give his opinions or judgment on a question of quality or values, if he is permitted to give the source of his special knowledge, experience, or skill, it will be confined to general statements. And when he is permitted to narrate the facts and circumstances of a special transaction, outside of the case on trial, for the purpose .of enabling the jury to compare the facts and results of such transaction ■with those of the case on trial, and in that manner impress them with the soundness of his opinion or judgment; Held, Error.</p> <p>2. Sale: fraud. To avoid a sale upon the ground that it is fraudulent as to creditors, the purchaser must have knowledge of the fraudulent purpose of the seller, or have notice of such facts tending to show a fraudulent purpose as would put a man of ordinary prudence on inquiry. Temple v. Smith, 13 Neb., 513.</p>

<p>1. Street Railway: travel along public highway: negligence. It is not negligence per se to travel along a public-highway by the side of a street railway track on which a car is moving in the same direction as the party traveling, unless such party places himself in snch position as to be run over or-injured by such street car.</p> <p>2. -: duties OF CAR DRIVERS. The driver of a horse car on at street railway, in driving horses attached to such car, must sit or stand on the front platform or place provided for him, must maintain control of the horses and car, and exercise a reasonable degree of care and watchfulness to prevent collisions and injury to persons crossing or traveling on or over such street.</p>

<p>1. County Treasurer: default in public funds.- action by county. Where a county treasurer is in default in respect to the 'county, state, school district, precinct bond, city, and other funds, and his bond has been canceled and bondsmen discharged by a judgment of the district i ourt of the proper county, an action will lie against him in the name of the proper county for all such funds in respect to which he is a defaulter.</p> <p>% -: -: —-In such case the county proceeds under a form analogous to that of a trustee of an express trust, in respect to all of such funds other than those of the county proper.</p>