Volume 23 — Nebraska Reports

<p>1. Criminal Law: confessions. While the confessions or statements of a third party, not made in the presence of the accused, are inadmissible in any form in a prosecution against a prisoner charged with the offense of aiding and abetting such third party in the commission of a murder, yet it is competent to prove the statements of the accused, made against his interests, in a conversation in which he is informed that a confession has been made by such third party, he being the principal indicted with the accused, hut not in custody, and in suéh case the whole conversation between the witness and accused may be given in evidence.</p> <p>2. -: EVIDENCE: CONVICTION OF felony. A witness was called and examined by the prosecution. On his cross-examination he was asked if he had ever been convicted of a felony and sentenced to prison. He answered that he had been convicted of the crime of forgery by the district court of Arapahoe county, Colorado, and that, he served a part of the term for which he was sentenced, when he was pardoned by the governor of that state. The conviction was also proven by other testimony, to which the prosecution made no objection, the fact being virtually admitted. On the part of the defense the record of the conviction was offered in evidence, to which objection being made it was excluded. Held, No error, or if erroneous it was without prejudice, the fact having been already unquestionably established.</p> <p>3. -: impeaching witness. Impeachment is an attack upon the present credibility of a witness, and an impeaching witness who testifies that he knows the general reputation of the person attacked for truth and veracity will not be excluded from giving testimony as to such reputation at the time of the trial, and permitted only to testify to the reputation of the witness at a prior time. The true question is, what is his reputation at the time he testifies.</p> <p>4. -: MUEDER: INSTRUMENT WITH WHICH CRIME COMMITTED. This indictment charged the murder to have been committed with a “ bludgeon. ’ ’ The testimony left it in doubt as to whether death was produced by a blow with a bolt or club. The court instructed the jury that if the death was produced with a blow with a bludgeon, bolt, or club, it would be sufficient as to the manner of producing death. Such instruction was held correct.</p> <p>5. -: evidence: reasonable doubt. In criminal prose cutions the jury must be satisfied of defendant’s guilt beyond a reasonable doubt from the evidence. They must not go outside of the evidence. Hence an instruction that the evidence includes not only the sworn testimony of the witnesses who have testified, but all the circumstances surrounding the tragedy, was erroneous.</p> <p>6. -: statutory definition oe crime. While it is doubtless advisable and perhaps better to use the statutory language descriptive of a crime in an instruction, yet where words are used which convey the same meaning and import, and which cannot be misconstrued by the jury, the instruction may not be thereby rendered erroneous. ‘</p> <p>7. -: INSTRUCTIONS TO jury: duty of trial court. It is the duty of a trial court to submit to the jury, by way of proper instructions, such principles of law as may be applicable to the case on trial as it appears from the evidence, and also such principles as should be applied to witnesses who are interested in the result, or whose testimony should be weighed with special care and caution as accomplices. But it is not proper to discuss the policy of using such witnesses. This should be left to counsel in the argument.</p> <p>8. -: trial. The jury alone are the judges of the weight of evidence. Therefore an instruction that, “evidence of good character is entitled to great weight when the evidence against the accused is weak or doubtful, but is entitled to very little weight when the proof is strong,” was held to be erroneous.</p> <p>9. -: Instructions examined together, and found erroneous.</p> <p>10. -: presumption or innocence. In the absence of evidence to the contrary, the law presumes every one innocent, and this legal presumption of innocence is a matter of evidence, to the benefit of which the party accused is entitled. Garrison v. The People, 6 Neb., 275.</p>

<p>1. Negotiable Instruments: transfer op note after maturity. Where a negotiable promissory note is transferred after due, its non-payment is a suspicious circumstance, and if the note has been paid, in whole or in part, before the transfer, such purchaser will take subject to such payment. Davis v. Neligh, 7 Neb., 78.</p> <p>2. -: -: garnishment. Where a negotiable promissory note is transferred by endorsement after maturity, the legal title is thereby vested in the indorsee, and the amount due on the note cannot thereafter be garnished in the hands of the maker as a debt due to the original holder, whether the maker has notice of the transfer or not.</p> <p>3. Garnishment. A garnishee cannot be charged as the debtor of the defendant unless it appear affirmatively that at the time of the garnishment tjie defendant had a cause of action against him for the recovery of a legal debt due or to become due by the efflux of time.</p>

<p>1. Trial: new trial on ground of neglect of attorney : discretion of COURT. On the hearing of a motion in the district court to vacate a judgment rendered in the absence of the defendants, and grant a new trial on the ground of accident or surprise which ordinary prudence could not have guarded, against, it was shown by the affidavit of the male defendant that he had employed B., the firm of S. & D., and F., attorneys, in the order named, to attend to the caseon the partof defendants; that he went away with the understanding that the last employed of said attorneys was to attend to the case for defendants, and that through some misunderstanding on the part of F., said attorney, said cause was allowed to go by default, Keld, That in. the absence of an affidavit of said F., showing the facts constituting such alleged accident or surprise, or a showing why such affidavit could not be produced, it was not an abuse of discretion on the part of the district court to overrule and deny such motion.</p> <p>2. Affidavit of Merits should be made by a party to the action seeking relief by the proceeding in which it is made, and should, state that he had fully, fairly, and truly stated his cause of action, or ground of defense, to his counsel, naming him, and' that thereupon he had been advised by such counsel that he has a good and sufficient cause of action or defense on the merits.</p>

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

<p>1. Ejectment: stipulation as to evidence: copies of deeds. In an action in ejectment it was stipulated between the parties, that certified copies of the record of deeds should be used in evidence without proof of the loss of the originals, and that such copies contained all that the originals contained. Plaintiff offered in evidence a certified copy of a deed executed by the-Lincoln Land Association, a corporation, which was objected to for the reason that the copy did not show that the original deed was under the seal of the corporation, that is, that no impression of the seal was thereon. The objection was overruled, and the copy admitted. Held, Correct, it being recited in the deed that the seal of the corporation was thereto affixed.</p> <p>2. Limitation of A ction. The statute of limitations will not run in favor of an occupant of real estate, unless the occupancy- and possession are adverse to the true owner, and with the-intent and purpose of the occupant to assert his ownership of the property. His possession must be as owner and adverse to, every other person.</p> <p>3. Ejectment: Uefense. answer. In an action in ejectment by the vendee against the vendor, the only defenses presented by the answer were a general denial of the allegations of the petition, and a plea of the statute of limitations. On the trial defendant sought to prove that he had not been paid the consideration for which he sold the land. The testimony was excluded. Held, Correct, as no equities were presented by the answer.</p>

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

<p>1. Hew Trial. A motion for a new trial must be made in the court below in order to entitle a party to a review of the case by petition in error, where the alleged errors occurred upon the trial of the cause.</p> <p>2. Trial: special findings. Where the findings of fact, found specially by a trial court, were not excepted to and are in favor of the party appealing, they will be taken as correct and will not be questioned by the supreme court.</p> <p>3. Judgment Lien: foreclosure of other liens: parties. The filing of a transcript of a judgment of the county court in the office of the clerk of the district court, during the pendency of a suit to foreclose a mechanic’s lien or mortgage, would only create an incumbrance upon the equity of redemption of the defendant in the foreclosure proceedings, and such judgment creditor would not be a necessary party to such action. The judgment lien, being created pendente lite, would be extinguished by such foreclosure.</p>

<p>Error to the district court for Webster county. Tried below before" Gaslin, J.</p> <p>Tessier v. Englehart & Co., 18 Neb., 173.</p> <p>Shot-well v. Harmson, 22 Mich., 414. Butcher v. Bank, 2 Kan., 70.</p>

, the following decree was rendered, from which defendant Gouff appeals: “This cause came on for hearing upon the petition, answer, reply, and evidence, and on consideration thereof the court finds for the plaintiff1, and that there was a partnership between plaintiff and defendant in the construction of the bridge mentioned in plaintiff’s petition, and that the profits in the construction thereof were to be equally divided between the plaintiff, Daugherty, and defendant…

<p>Motion to dismiss.</p>

<p>Original application for mandamus.</p> <p>Col-well v. Chamberlin, 43 N. J. Law, 387. Fiebleman v. State, 98 Ind., 516. Timm v. Harrison, 109 111., 593-Logge v. State, 17 Neb., 140, State v. Berha, 20 Id., 376-Peoplev. Hoffman, 97 111., 234.</p> <p>Town of Martinsville v. Frieze, 33 Ind., 507. Jones v-Commissioners, 21 Mich., 236. Tuscaloosa Bridge Co. v. Olmstead, 41 Ala., 9. Lehman v. McBride,. 15. Ohio State,. 601.</p>

<p>Error to the district court for Thayer county. Tried below before Morris, J.</p> <p>Adams v. Nebraska Oity National Bank, 4 Neb., 373. Cline v. Libby, 46 Wis., 129. Hall v. Sampson, 35 N. Y., 274.</p> <p>Sutro v. Hoile, 2 Neb. 192. Aultman, Miller & Co. v. Mallory, 5 Neb., 180.</p>

t for Cherry county. Tried below before Tiffany, J. Plaintiff’s interest not subject to levy and sale upon execution. Williams v. MeGrade, 13 Minn., 174. Hasbrouek v. Bouton, 60 Barb., 413. Maxwell PI. and Pr., 4th Ed., 582. Replevin proper. Wells on Replevin, Secs. 97, 626, 644. Jaekson v. Hubbard, 36 Conn., 10. Evidence insufficient to constitute estoppel. Grant v. Oropsey,.8 Neb., 208. Estoppel not available as a defense. B. & M. li. li. Go. v. Harris, 8 Neb., 142.

<p>Error to the district court for Richardson county. Tried below before Broady, J.</p> <p>People v. Buster> 11 Cal., 215. Pomeroy’s Legal Remedies, Sec. 390. Smith’s Leading Cases, 584. Roose v. Perkins, 9 Neb., 311.</p> <p>Roose v. Perkins, 9 Neb., 304. King v. Bell, 13 Id., 409. Kerkow v. Bauer, 15 Id., 150. Buekmaster v.. MeFlray, 20 Id., 557.</p>

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

<p>Replevin: sufficiency of undertaking. A coroner, sheriff, or constable having served an order of replevin of personal property, under the provisions of chapter XI. of title XXX. of the , civil code, is not bound to receive or accept as sufficient an undertaking as provided for by section 1037 of said code, unless the same is executed by one or more sufficient sureties who are residents of the county in which the action is pending.</p>

<p>Trial: misconduct op jury. During the progress of the trial of the cause in the district court, while the court had adjourned for dinner, the defendant took two certain members of the jury in said cause, who were engaged in trying the same, into a public liquor saloon, and treated them to intoxicating liquors, which was then and there drank by said jurors : Held, That the verdict he set aside and a new trial granted.</p>

<p>1. Bonds of City in aid of County Bridge. The provisions of section 77, chapter 14 of the Compiled Statutes, authorizing a city in certain cases to appropriate the sum of five dollars per lineal foot to aid in the construction of a county bridge, do not preventa city situated on a stream like the Loup river, from issuing bonds to aid in the construction of a public bridge across such river.</p> <p>2 -. Such bonds may be used to construct a bridge on a public thoroughiare leading into such city, although the bridge is outside of the corporate limits.</p>

<p>Error to the district court for Johnson county. Tried below before Broady, J.</p> <p>Deposit of corn constituted sale and not bailment. Benj. on Sales, 5. Chase v. Washburn, 1 Ohio State, 247. MeConnell v. Hughes, 29 Wis., 537. Johnston v. Brown, 37 Iowa, 200. Hart v. Ten Fyek, 2 Johns. Ch., 108. Adams v. Wildes, 107 Mass., 123. Replevin does not lie. Wood v. Fales, 24 Penn. State, 246.</p> <p>Schindler v. Westover, 99 Ind., •395. Wells’ Replevin, Sec. 312-316. Young v. Miles, 20 Wis., 615. Sexton v. Graham, 53 Iowa, 188. Ryder v. Hathaway, 21 Pick., 305. Chapman v. Shepard, 39 Conn., 413. Cushing v. Breed, 14 Allen, 380.</p>

<p>Chattel Mortgage: sale by mortgagor: waiver by mortgagee. In an action of replevin where the plaiutiff claimed possession of certain mares under a chattel mortgage dated January 10, 1S-3, given to secure the sum of $212.75, due Deeemberlst of that year, on which had been paid a sum exceeding $90y there was testimony tending to 'show that in February, 1884,. the mortgagor had sold the mortgaged property as his own at public vendue, to parties who knew of the existence of the mortgage; that prior to the execution of á note, one of the purchasers inquired of the mortgagee as to the right of the mortgagor to sell, and he said, “ I guess it is all right. I gave Henry-leave to sell her, provided he gave a mortgage on a team as. good as the one I sold him.” The purchaser thereupon executed a note to the mortgagor for the purchase price of the mare, and! soon afterwards the mortgagor executed to the plaintiff a mortgage upon another span of horses, which facts in relation to the-waiver of the first mortgage, and the taking of the second, were denied by the plaintiff. Held, That a clear preponderance of the testimony established such waiver, and that the plaintiff was. not entitled to recover.</p>

<p>'Chattel Mortgage: sale by mortgagee : rights op creditors. A mortgagee of goods which were subject to the claims of other creditors, sold such goods at private sale. Held, That :as against such creditors he must account for the value of the goods. Second, the question of value was one for the jury to determine.</p>

<p>Error to the district court for Frontier county. Tried below before Gaslin, J.</p> <p>Ex parte Eads, 17 Neb., 146. In re Baleom, 12 Id., 317. Btate v. Ensign, 11 Id., 532. Bewail v. Btate, Wright, 483. Wasson v. Canfield, 6 Blackf., 409. Btate v. Hinkle, 27 Kan., 311. Com. v. Barney, 10 Cush., 480. Btate v. Warren, 14 Tex., 407. Warren’s Ohio Criminal Latv, 55.</p> <p>Franklin v. State, 8 N. E. Rep., 695. Fx fiarte Maulé, 19 Neb., 273. State v. Hurds, 19 Id., ■317. Shular v. State, 4 N. E. Rep., 870. Fx parte Johnson, 15 Neb., 513.</p>

Appeal by defendants from a decree rendered in Johnson county district court, Broady, J., presiding, perpetually enjoining them from the opening of a public road between sections 20 and 29, in township 5, range 11 east, in said county. Maxwell’s PI. and Pr., 551. High Injunctions, Sec. 394. Nichols v. Salem, 14 . Gray, 490. New Albany, etc., R. Co. v. Connelly, 7 Ind., 32. Throckmorton v. State, 20 Neb., 653. Tigard v. Moffitt, 13 Id., 56.5. Hopkins v. Keller, 16 Id., 571.

<p>Mills and Mill Dams: nuisance : injunction. In an action by tbe owner of a mill propelled by water, to enjoin the owner of another mill erected below him on the same stream from raising his dam to such a height as to back tbe water upon his mill wheels, the testimony showed that the back-water from the lower dam when it was first erected did not reach within two hundred yards of the plaintiff’s mill, and that afterwards the-back-water extended to and impeded the operation of the wheels of such mill, there being considerable fall between. Seld* That while there was no testimony as to the height of the lower dam when first erected, or at the time of the trial, yet it did clearly appear that the back-water on the plaintiff’s mill was the direct result of raising the defendant’s dam, and that the plaintiffs were entitled to an abatement of the nuisance and to an injunction.</p>

<p>Taxes: tax sale : illegal tax deed : lien oe purchaser : INTEREST. In an action by the purchaser' of .laud at a tax sale held in the year 1872 for the delinquent taxes of 1871, where he also paid the prior taxes on said land for 1870, and the subsequent taxes for 1872, 1873, and 1874, for the settlement of his title and interest in said land, and for a lien thereon for the amount bid at said sale, and the amounts paid for said taxes, and where, upon the trial, the court found that the taxes for which •said sale was made were legally assessed and levied, and said sale legal and regular, but that the plaintiff’s title to said land 'had failed by reason of the illegality of his tax deed therefor, Held, That the plaintiff was entitled to a lien upon said land for the amount bid at said sale, and the several sums paid for prior and subsequent taxes, together with interest on said several sums from, the date of said sale, and said several payments respectively, at the rate of 40 per cent per annum up to the expiration of two years from the date of said sale, and at the rate of 12 per cent per annum thereafter.</p>

<p>Motion to quash bill of exceptions.</p>

<p>County Judge: disqualification : power of appointee. A person appointed, by the county board to act in place of the-county judge during the disqualification of such county judge from acting in any cause or matter before him, -will continue to act until the whole cause or matter is disposed of, including every matter and thing connected therewith, which might or could be officially done or performed by the county judge, were-he not disqualified to act in. such cause or matter.</p>

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

<p>1. Petition examined, and Held, To constitute a cause of action.</p> <p>2. Trial: final judgment: stipulation for review in supreme COURT. The decision of the district court in sustaining a motion for a new trial after a cause has been tried to a jury and verdict returned, is not a subject of review until after a final judgment is rendered in a cause. (Artman v. IVest Point Manufacturing Co., 16 Neb., 572.) But where after verdict, and pending a ruling of the court upon a motion for a new trial, it ' is stipulated that the ruling of the court thereon may be reviewed by the supreme court, without reference to a subsequent trial, and that in case a new trial is refused upon review by the supreme court, the decision of the district court is affirmed, the cause shall be dismissed ; or in case a new trial is granted, and upon review the order should be set aside and a judgment absolute rendered in the supreme court for the amount of the verdict, the. supreme -court will, be governed by the stipulation, review the case, and render such judgment as the district court should have rendered.</p> <p>3. -: -: --. In such cases, the recognized rule, that in deciding the motion for a new trial the ruling of the district -court will not beimolested, unless there is an abuse of discretion does not apply with its usual lorce, and the supreme court will examine the -case, in the exercise of the jurisdiction conferred by the stipulation, without reference to,such rule.</p> <p>4. -. The rule, that a trial jury must be the sole judge of questions of fact, where the testimony is contradictory, adhered to.</p>

<p>Error to the district court for Lancaster county. Tried below before Morris, J.</p> <p>Miller v. Finn, 1 Neb., 254. In re Cooper, 93 N. Y., 507. Bank v. St John, 25 Ala., 566. Bigelow Estoppel, 578— 582. C. & N. W. R. R. v. Auditor, 53 Mich., 81. 0. Sc M. R. R. Co. v. Wheeler, 1 Black, 286. Muller v. Dows, 94 U. S., 444.</p> <p>Brown v. Hurst, 3 Neb., 356. Whiteley v. Davis, 20 Neb., 504. Sherman v. Bates, 15 Id., 18.</p>

<p>Error to the district court for Lancaster county. Tried below before Pound, J.</p> <p>JDwin v. Hadett, 4 Ohio State, 436. Allen v. Miller, 12 Id., 374.</p> <p>Cropsey v. Wiggenhorn, 3 Neb., 108. Civil Code, Sec. 72.</p>

<p>1. Forcible Entry and Detention. In an action of forcible-detention, under the statute, to recover the possession of premises unlawfully withheld, it is sufficient to maintain the action that the party in possession refuses to vacate the premises on lawfn-l notice.</p> <p>2. —-: notice. A notice to the occupying party, signed by the-authorized agent or attorney of the lawful claimant, and duly served, is a sufficient notice for the recovery of the possession of premises unlawfully occupied.</p> <p>3. The Weight of the Evidence being for the plaintiff in the court below, and having been followed by the jury in their verdict, the verdict and judgment sustained.</p>

<p>Tried below before Chapman, J.</p> <p>Abbott v. Qatch, 13 Md., 314. Miller v. MeOaffrey, 9 Penn. State, 245. Trustees v. Platt, 5 Brad., 567. Puff v Pinaldo, 55 N. Y., 664. McConey v. Wallace, 22 Mo. App., 377. 2 Sutherland Damages, 490. Dermott v. Jones, 2 Wall., 1.</p> <p>Escott v. White, 10 Bush., 169. Morrisey v. Schindler, 18 Neb., 672. Clarice v. Pope, 70 111., 128. Lovelock v. King, 1 M. & E., 60. Goldsmith v. Eland, 26 Ohio State, 101.</p>

<p>Chattel Mortgage: first and second mortgage: sale of property: rights of mortgagees. A executed to B a chattel mortgage upon a horse, and other property, to secure the notes of A to the amount of $460.40. Afterwards, but before the maturity of the notes secured by the mortgage, A executed to C a chattel mortgage on the same property, to secure a note for $142, expressly stating in the mortgage that it was subject to the mortgage executed to B. Afterwards A and B sold the horse to D for its full value, and applied the proceeds of the sale to the partial payment of A’s debt to B. Upon the horse, being delivered to D under his purchase, C asserted his mortgage, and took possession of the property for the purpose of foreclosure, when B replevied it. Held, That the sale of the horse to. D by A and B, being made in good faith and for the full value, 'effectually foreclosed the title of A, as well as that of C, and that, as against A and C, B was entitled to the property.</p>

<p>1. Vendor and Vendee: sale: misrepresentations as to value or property. Where a vendor and purchaser stand on an equal footing, the expression of opinions as to the value of property will not usually he considered so material that misstatements will constitute fraud. Where, however, the purchaser resides near the property, and has knowledge of its value, and the owner is a resident of another state, and has no knowledge on that subject, statements of the purchaser representing the property to he greatly beneath its true value, and that the vendor’s title has been conveyed by sale for taxes, will be sufficient to avoid the deed given to such purchaser.</p> <p>3. -:--: CANCELLATION OE DEED. Where a person desiring to purchase real estate knows its value, and when asked by the vendor, a resident of another state, and who has no knowledge of such value, as to the worth of such property, designates a sum greatly beneath its worth, as he well knows, and such statement is relied upon by the vendor and a sale effected, it may be sufficient to authorize a cancellation of the deed at the suit of the vendor.</p> <p>3. -: — : -: fraud BY yerdee. If suck purckaser does. any act or makes any declaration witk tke intention of misleading the seller, and preventing him from ascertaining the-real situation of the property, and at tke same time conceals from kim a fact or facts wkich he knows to he material, he is-guilty of a fraudulent deception.</p>

<p>1. Evidence examined, and Held, To sustain the verdict.</p> <p>2. Negligence: injuries to person: guard around area IN PUBLIC STREET OF city. The owner of a hotel had constructed an area-way under the sidewalk, for an elevator to lower baggage about twelve feet to the basement of the hotel, and as a guard had placed a rail of gas pipe, about seven feet six inches in length, by from two to three inches in diameter, in iron posts about two feet above the edge of the sidewalk. This rail was so arranged as to be taken out when baggage was to be raised or lowered by the elevator. , The fastenings at one end of the rail had become loose and unsafe, of which the proprietor had notice. One W., a patron of the hotel, on leaving same, in conversation with a friend, leaned against the rail in question, which gave way and precipitated him partly into the area-way below, causing him to strike on the edge of the sidewalk, from which he sustained severe injuries. Held, That it was the duty of the hotel company to keep the rail in question in a safe condition, and that it was liable for the injuries sustained by W.</p>

<p>1. Principal and Agent: sale by agent. Where an agent for the sale of real estate conceals from his principal material facts relative to the value of the property to be sold, and by a subterfuge fraudulently purchases the property from his principal in the name of another, for less than its value, the principal may, by proper proceedings in equity, rescind the sale and require a reconveyance of the property from the agent. But this rule would have no application if the agent, in good faith and without any design to obtain the property for himself, sold it to a purchaser, reported the sale to his principal, giving the terms and conditions thereof, and after the ratification of the sale by the principal, purchased the land from the party to whom it had been sold and received a conveyance from him, no fraud having beén perpetrated against his principal.</p> <p>2. Trial. Questions of fact are for the trial court to determine, and a decision thereon will not be molested by an appellate court unless manifestly wrong.</p>

<p>Hoads: establishment: opening. Under section 31 of chapter 78 of the statutes, providing for the establishment of roads, Held, That a party having due notice, under said statute, of the establishment of a public road over his premises, and having neglected, within the time provided, to remove his fences, the enforcement of penalty and costs for such neglect is not an abridgement of his rights under sections 3 and 15 of article I. of the constitution of this state, and he is not -thereby deprived of his property without due process of law.</p>

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

<p>Error to the district court for Holt county. Tried below before Tiffany, J.</p> <p>6 Waite’s Practice, 139. U. S. v. Hudson, 7 Crancb, 32. Yates v. People, 6 Johns., 337. Neiohouse v. Newhouse, 12 Pac. Eep., 422. Const., Sec. 20, Art. I. State v. Jaynes, 19 Neb., 697.</p>

<p>Exceptions filed by county attorney of Douglas ■county. Tried below before Groff, J.</p> <p>1 Bishop’s Crim. Proe., 1112-1119. State v. Rivers, 27 N. W. Rep., 781. State v. Parish,22 Iowa, 284.</p> <p>Stevens v. State, 191 Neb., 648. Parks v. State, 20 Neb., 515.</p>

<p>Error to the district court for Douglas county. Tried below before Wakeley, J.</p> <p>Lott v. Ross, 38 Ala., 156. Mayor v. Hartridge, 8 Ga., 23. Warring v. Savcmnah, 60 Ga., 99. Dubuque v. Northwestern Ins. Có:, 29 Iowa, 9. People v. Thurber, 13 111., 554. North America Ins. Co. v. Com., 87 Penn. State 173. Glasgow v. Rowse, 43 Mo., 479. Ins. Co. v. Com., 133 Mass., 162.</p> <p>State v. R. R. Co., 45 Md., 361. Cons., Sec. 1, Art. IX. Paul v. Virginia, 8 Wall., 168. Telegraph Co. v. LAeb, 76 111., 172. Leavenworth v. Booth, 15 Kan., 627. People v. Davenport, 91 N. Y, 574. People v. Commissioners, 76 N. Y., 73. Worth v. R. R. Co., 89 N. C., 291.</p>

<p>Municipal Corporations: gearing streets: damages: BENEFITS. In awarding just compensation for property damaged for public use, general benefits shared by the public at large cannot be considered, while special benefits to the property damaged may be.</p>

<p>Appeal from the district court of Lancaster county. Heard below before Pound, J.</p> <p>Bu/rt v. Wilson, 28 Cal., 632. Durant v. Bacot, 2 Beasley, 201. Adams v. Stevens, 49 Me., 362. Durham v. Ins. Co., 22 Fed. Eep,, 468. Thompsonville Scale, etc., Co. v. Osgood, 26 Conn., 16. Ellis v. Himnicut, 71 Ga., 637.</p> <p>Smith v. Sands, 17 Neb., 498. Perry on Trusts, Sec. 847. Blackburn v. Randolph, 33 Ark., 119. McKeiqhan v. Hopkins, 19 Neb., 38.</p>

Appeal frorp. the district court of Lancaster county Heard below before Pound, J. Alleged frauds were not cured by order of confirmation, Ereeman Executions, 433. Taylor v. Courtnay, 15 Neb., 190. While Grow v. White Wing, 3 Kan., 276. Sale may be set aside after confirmation. Adams v. Seeor, 6 Kan., 542. Coates v. Bank, 23 Ohio State, 415. Me Keighan v. Hopkins, 14 Neb., 361. Purchaser is trustee for judgment debtor. 1 Perry Trusts, 3d Ed., Sec. 215. Herman Executions, 342.

<p>Error to the district court for Lancaster county.. Tried below before Chapman, J.</p> <p>Lloyd v. Matthews, 51 New York, 124. Sussdorf v. Schmidt, 55 Id., 319. Potvin v. Ourran, 13 Neb., 303. Anderson v. Cox, 16 Id., 10. Earp v. Cummings, 54 Penn. State, 394. Jones v. Adler, 11 Am. Law. Reg., 53.</p> <p>Wylie v. Marine National Bank, 61 N. Y., 416.</p>

<p>Creditor’s Bill: pleading: inconsistent defences. Plaintiff’s action was in the nature of a creditor’s bill, alleging the re. covery of his judgment, that it was unsatisfied, and that the real estate, sought to be levied upon was purchased by the j udgment debtor, defendant, but that he procured the title to be conveyed to his brother, for the purpose of defrauding his creditors. Defendantanswered admitting that the title was held by his brother, who was, in fact, the owner of the property, but alleging that he was the head oí a family, and that he had occupied the premises as a homestead since long prior to the recovery of the judgment by plaintiff, and asking that, in case the property should be held by the court as belonging to him, that his homestead rights be protected, the property-not being capable of fraudulent alienation, or subject to execution. Upon motion of plaintiff, he was compelled to elect upon which defense he would stand. Seld, Error, the defenses not being inconsistent.</p>

<p>1. Municipal Corporations: cities of second class: passing ordinances. In a city of the second class, containing a population of less than five thousand, the common council consisted of four councilmen,' elected to said office. Upon the final passage of an ordinance to redistrict the city and increase the number of wards, upon the calling of the yeas and nays, two answered and voted yea, and two failed to vote, whereupon the mayor voted yea, and declared the ordinance passed. The proceedings, Held, To be void.</p> <p>2. -: void ordinance. Incumbents superseded by council-. men elected -under, or by virtue of, such void proceedings, are entitled to be restored by due process of law; but the legal, organization of the city, and the acts of the councilmen defacto, within the purview of the statute, will be recognized and. upheld.</p>

<p>1. Liquors: revocation by proper authorities or license • to sell. Section 92 of chapter 13 of the Compiled Statutes of 1887, governing cities of the first class in this state, provides “ that the license of a person selling intoxicating liquors shall he revoked hy the mayor and council, upon conviction of the licensee of any violation of any law, ordinance, or regulation appertaining to the sale of such liquors. Where the holder of a license was convicted of the violation of the law pertaining to the sale of intoxicating liquors, in the police court of the city of Lincoln, and the fact of such conviction was duly certified hy the police judge to the mayor and council, it was Held: Krst. That the mayor and council were authorized and required ’ .to revoke the license. Second. That no notice to the licensee of such proposed action was necessary. Third. That such revocation cotila be declared by resolution, and that the passage of an ordinance was not necessary.</p> <p>2. -: -: ORDER OF REVOCATION BY CITY COUNCIL: ' PRESUMPTION AS TO PRESENCE OF MAYOR. In Such case, where the resolution directed the marshal to notify the licensee that the license had been revoked by the mayor and council, there could be no presumption that the mayor was not present at such meeting, it being his official duty to preside at all meetings of the council.</p> <p>3. Constitutional Law. Section 92, chapter 13, Compiled Statutes of 1887, JECeld, Constitutional.</p>

<p>Elections: residence as a qualification for office. The relator was el ected to the office of county treasurer at the annual election held November 3,1885. At that date he had been a resident of the state for five months only, but was otherwise eligible. At the commencement of the term his residence in the state had been continuous for seven months. Held, That being ineligible to-such election at the date thereof, under a fair construction of Sec. 1, Art. VII. of the constitution, and See. 64, Chap. 26, Comp. Stats., such ineligibility was not removed, for the purposes of that election, by reason of six months’ continuous residence previous to the commencement of the term.</p>

<p>Appeal from the district court of Douglas county. Heard below before Hopewell, J.</p> <p>Goodenow v. IAehfield, 59 Iowa, 266. Kent v. Kent, 2 Mass., 538. Collins v. Jennings, 42 Iowa, 447.</p> <p>Strong v. State, 4 N. E. Reporter, 293. Dale v. Doddridge, 9 Neb., 138.</p>

<p>Railroads: injuries to stock: negligence: evidence. In an action against a railway company to recover damages for the loss of a cow killed by its engine, the defense was that the cow was killed on the public road, and without negligence on the part of the company. The engineer testified that the engine struck the cow on the crossing of a public road over the railway, and carried or threw her thirty or forty feet, but there were no marks on the ground indicating that the cow had been struck at that point. The distance from the road crossing to the cattle guard was forty-three feet, and from that point to a place where there were marks on the railway track tending to show that the cow had been struck was fifty-four feet, the cow being thrown from eight to twelve fe.et east and south of that point. Held, First, that the evidence failed to show that the cow was killed on the road crossing. Second, that a clear preponderance of the evidence showed the railway fence to be in a defective and imperfect condition, and that the cow was killed within the right of wav.</p>

<p>Appeal from the district court for Burt county. Heard below before 'Waiceley, J.</p> <p>Thompson v. Loenig, 13 Neb., 387. Knowltonv. Hawes, 10 Neb., 535. Bump Fraudulent Conveyances, 200. State Bank v. Harrow, 26 Iowa, 426.</p>

<p>1. Cities of the Second Class and Villages: cemeteries. The provisions of chapter 15 of the Session Laws of 1887, page 330, providing for the more efficient management and care of cemeteries and cemetery grounds in cities of the second class and villages, has no application to “ cities of the second class of over 5,000 inhabitants,” as created by Art. II. of Chap. 14, of the Compiled Statutes of 1885, but is limited to Art. I. of said chapter, and to Chap. 14 of the Compiled Statutes of 1881.</p> <p>2. -: GOVERNMENT OE NEBRASKA CITY. Nebraska City, being a city of the second class having over 5,000 inhabitants, is governed by the act of March 1, 1883, as amended by Chap. 14 of the Session Laws of 1885, which act confers upon the city the right to enact ordinances for the purpose of purchasing, holding, and controlling cemeteries.</p> <p>3. -: STATUTORY CONSTRUCTION. As to whether chapter 15 of the Session Laws of 1887 is repealed by the provisions of chapter 12, Id., subsequently enacted, quaere.</p>

<p>Cities of Second Class and Villages: annexing territory. The city council of the city of W., by a vote of two-thirds of all the members elect, adopted a resolution to annex to said city certain contiguous territory, describing it, and thereupon the city filed a petition in the district court, together with an accurate plat of the territory sought to be annexed, and prayed for the annexation of such territory, the petition stating all the facts required by section 99, Chap. 14, Comp. Stat. Objection being made that the power conferred on the district court was legislative and not judicial, Held, That as a condition of such annexation the court was required to find the allegations of the petition to be true, and that such territory or a part thereof would receive material benefit from its annexation to such city, or that justice and equity required such annexation, and to enter a decree accordingly. The questions, therefore, are so far of a judicial character that the courts may be invested with jurisdiction to determine them.</p>

<p>County Treasurer: neglect to register warrants. 'A county treasurer is not liable for the penalty provided by section 12 of chapter 93, Compiled Statutes of 1885, for the failure to register a county warrant presented to him for such registration, prior, to the expiration of ten days after it is issued, that time being given in which an appeal may be taken by a taxpayer, and within which the county clerk is prohibited from delivering the warrant.</p>

Ekrob to tbe district court for Richardson county. Tried below before Appelget, J. on instruction No. 2, given by court at request of prosecutor, cited: State v. Woolverton, 8 Blackf., 453. Rlath v. Braunsdorff, 40 Wis., 107. Beecher v. Anderson, 45 Mich., 544. State v. Schultz, 57 Ind., 19. State v. Frishy, 90 Mo., 530. State v. Mumford, 1 Dev., 519. Bonohoe v. State, 14 Texas Ct. App., 643.

<p>Original application for mandamus.</p> <p>Comp. Stat., Sec. 42, Ch. 28. Sec. 491c, Code. State v. Eeiclthe, 12 Neb., 175. State v. Sovereign, 17 Id., 175.</p> <p>Hayha v. Webster County, 18 Neb., 131. U. 8. v. Hill, 7 U. S. Sup. Ct. Rep., 510.</p>

<p>Appeal from Judgment of Justice: riling transcript. C. A. "W. obtained a judgment in a justice court against W. J. W., . July 1, 1884. Within ten days thereafter W. J. W. presented to, and filed with, the justice an undertaking for an appeal, which was approved, but failed to present to, and file with, the clerk of the district court a certified transcript of the proceedings, including the undertaking," on or before the second day of the next term of the said court, held more than thirty days after the rendition of said judgment. At the October, 1886, term of said court, two terms of court having intervened, C. A. W. filed a transcript of the proceedings of the justice, and on his motion the cause was docketed, and a judgment entered in his favor similar to that entered by the justice. On error, Held, That the right of C. A. W. to proceed in that manner was not limited to “ the same term” at which ~W. J. W. first became in default, and that the judgment be upheld.</p>

<p>Motion for rehearing of case reported 22 Neb., 681.</p> <p>Bliss Code Pleading, Sec. 51. 1 Nash Pleading, 38. Maxwell Pi. and Pr., 22, and cases cited.</p>

<p>1. Eminent Domain. The right of enflnent domain gives the legislature the control of private property for public uses, and ior public uses only, and in case of a railway this right is restricted to “so much real estate as may be necessary for the location, construction, and convenient use of its road.”</p> <p>2. —:-• : CONDEMNATION FOB RAILROAD PURPOSES : BUILDING ON EIGHT OF WAY : AWARD : OPTION OF OWNER TO remove. Where real estate is necessary for the location, construction, and convenient use of a railway, and there is a building on such real estate, and the commissioners, in making the award of damages in condemnation proceedings, find the value of the real estate without the building, and an additional sum with the building, and give the owner an option to take the value of the real estate and the building, or the value of the real estate with Ihe right to remove the building, the owner cannot, after receiving compensation in iull for the land and the building, sue the company for the value of the building, upon the ground that it had misappropriated it by selling it to other parties who had removed it from the right of way.</p> <p>3. - : RIGHT OF RAILROAD TO CONDEMN BUILDINGS. The right of a railway company to condemn buildings situated on real estate necessary for its use is an incident to such right to condemn, and the owner must be paid full value for the land and the building.</p>

<p>1. Real Estate: conveyance: rents not accrued. Rent reserved by lease of real estate, and not accrued at the time of a conveyance of the reversion, passes with such conveyance to the grantee. Every conveyance of real estate passes all the interest of the grantor therein, unless a contrary intent can be reasonably inferred from the terms used.</p> <p>2. -: -:. CONSTRUCTION. In the construction of an instrument conveying real estate, it is the duty of the court to carry into effect the true intent of the parties, so far as such intent can be collected from the whole instrument, and so far as such intent is consistent with the rules of law. Comp. Stat., 1887, Ch. 73, Sec. 53.</p> <p>3. -: -: case stated. On the 29th of April, 1885, A executed .to B a lease to certain real estate, for a term of one .year from March 1, 1885, the rent reserved being a share of the crop, to be delivered on or before January 1, 1886. Under . this lease, B took possession of the premises. On the 30th day of April, 1885, and while the tenant was in possession, A sold the real estate to C, conveying the same by warranty deed “subject to a lease which expires March 1,1886.” Held, That C was entitled to the rent reserved ; the limitation in the deed only being intended as a recognition of the rights of the lessee, and a limitation upon the covenants of warranty contained in the deed.</p>

Eeeoe to the district court for Douglas county. On trial below before Neville, J., the court gave, among others, the following instructions to the jury, to-which defendants [plaintiffs in error] excepted: 1. The plaintiff sues to recover the sum of five hundred dollars, alleged to be due plaintiff from defendant as a balance due upon the assignment of a certain contract with the city of Omaha. 2.

Eeeoe to the district court for Gage county. Tried below before Beoady, J. Defendant guilty of gross laches, and not entitled to relief. Covington v. Saix/ent, 27 Ohio State, 233. Pope v. Hooper, 6 Neb., 179. Towng v. Morgan, 9 Id., 173. Setting aside judgment during term at which rendered is discretionary, but aliter as to setting aside after term-closed. Smith v. Pimiey, 2 Neb., 145. Siuchslager v. McKee, 40 Iowa, 212. Miller v. Albaugh, 24 Id., 128.

<p>1. Ejectment. In order that á plaintiff may recover real estate in an action of ejectment, his description of the land in dispute mñst.be such as would enable a competent surveyor to locate it by referring to deeds, writings, or known objects by which the exact land can be identified.</p> <p>2. -: description oe property. Plaintiff claimed the possession of certain lots and blocks in Lane’s addition to Pleasant Hill, describing them by their numbers. The addition was surveyed and platted in 1871, after which the proprietor sold the lots described in plaintiff’s petition, and which had, by mesne conveyances, been transferred to plaintiff. The plat is described by the.record as being south and west of the original town of Pleasant Hill, “on south-east J of section 9, town seven (7), range three (3) east, Saline county, Nebraska.” No other description, location, or monuments are given. There is no plat of the original town of Pleasant Hill. The certificate of the surveyor described it as “ part N.E. £ S.E.J, Sec. 9, T. 7, E. 3 east. * * “W. C. 50 links, S.N.E. corner of S.E. walnut stake 2 inches square, one foot long, var. 10° 30/ east.” No other description or monuments are given. In 1877 the proprietor sold and conveyed to defendant the land on which the survey had been made, describing it by the government survey, and not as a platted town. At that time, and prior thereto, the land was used as a farm, and has been so used by defendant since his purchase, until the commencement of this action. It was Held, That as the lots were incapable of identification, plaintiff could not recover.</p>

<p>Justice of Peace: absence of defendant on day of trial. Where a defendant has entered his appearance in an action, and absents himself on the day of trial, he is not entitled to have the judgment against him set aside under section 1001 of the. civil code of Nebraska. Strine v. Kauffman, 12 Neb., 423.</p>

<p>Wills. A will in the following words, “ I give, bequeath, and devise unto my wife, L. J. P., all my real estate, and all the remainder and residue of my personal estate after paying my debts and funeral expenses, and to her heirs in fee simple, for Che maintenance and support of my said wife and my infant child, O. D. P.,’r Held, That upon the payment of the debts and funeral expenses of the testator, and the death of L. J. P. without having disposed of the e'state,a trust resulted in favor of C. D. P., sole heir at law of the testator, in the whole of the residue and remainder of the estate.</p>

<p>Judgment: dormant judgment: revivor. A judgment was- » recovered in a county court, a transcript thereof filed in the district court, on which an execution was issued and returned unsatisfied. No further proceedings were had in said cause until after the lapse of nine years, when a motion and-affidavit were filed to revive the judgment. The parties thereupon stipulated “that the judgment herein sought to be revived was obtained, and that since the same was rendered five years have elapsed with no execution having been issued thereon,, and no attempt made to collect said judgment, and that the judgment became dormant. That the same was dormant four and a half years before any steps whatever were taken to revive-the same, and that no part of said judgment has ever been paid.” Held, That the plaintiff was entitled to an order of revivor. Wright v. Sweet, 10 Neb., 191. Hunter v. Leahy, 18 Neb., 80.</p>

<p>Ma-damns by City Treasurer against County-Treasurer. Where a county treasurer lias collected and holds in his hands moneys belonging to a city, and npon demand of the treasurer of such city refuses to pay the same, he may compelled by mandamus to make such payment. In such case the city treasurer is not compelled to bring an action on the county treasurer’s bond to recover the amount due.</p>

<p>Error to the district court for Sarpy county. Tried below before Wakeley, J.</p> <p>Graham v. Hartnett, 10 Neb., 517.</p> <p>Washburn Easements, 107. Hart v. Red Cedar, 24 N. W. R., 410. State v. Wertzel, 22 Id., 150. Moore v. Roberts, 25 Id., 564.</p>

<p>Malicious Prosecution: evidence. In an action for malicious prosecution, where it does not appear, by a preponderance of the evidence, that the defendant, before commencing the criminal prosecution on which the action is brought, truly, fully, fairly, and in good faith stated to counsel all of the facts of the case known to him, or which with reasonable diligence he could ascertain or discover, and was afterwards advised by such counsel to institute such criminal prosecution, and that the defendant instituted the same in good iaith and without malice, believing the plaintiff to be guilty of the offense charged, a judgment for the plaintiff will not be reversed on the ground that the verdict is not sustained by the evidence.</p>

<p>Error to the district court for Adams county. Tried below before Morris, J.</p> <p>Youngs v. Kent, 46 N. Y., 672. Code, Sec. 134. Schofield v. Bank, 9 Neb., 321. Faulkner v. Klamp, 16 Id., 178. Brown v. Montgomery, 20 N. Y., 291. Redman v. Insurance Co., 4 N. W. R., 591. McCann v. McLennan, 2 Neb., 290.</p> <p>Houghton v. Townsend, 8 Plow. Pr. R., 441. Western Horse and Cattle Insurance Co. v. Scheidle, 18 Neb., 495. 12 Barb., 576. 33 Id., 621.</p>

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

<p>Error to the district court for Saline county. Tried below before Morris, J.</p> <p>2 Daniels Neg. Inst., Sec. 1513, Genoa v. Woodruff, 92 U. S., 502. Auroia v. West, 7 Wall., 105. Arents v. 'Commonwealth; 18 Gratt., 776. Mills v. Jefferson, 20 Wis., 50. Antonio v. Lane, 32 Tex., 405.</p>

<p>1. Justice of Peace: granting new trial. A justice of the peace has no authority to grant a new trial except for fraud, partiality, or undue means. Templin v. Synder, 6 Nebraska, 491. Cox v. Tyler, 6 Nebraska, 297.</p> <p>2. Legal Holidays. Where the statutes designate certain days, as the 25th day of December, 1st day of January, etc., as legal holidays, and. prohibit courts from transacting business on such days, except, etc., the restriction is confined to the days named in the statute, and where any of such days fall on Sunday, the succeeding Monday is not to be observed as such holiday except so far as it may affect the presentment and demand of commercial paper.</p> <p>3. -: continuance OF causes. Where a cause is continued to a day on which the court is prohibited from transacting business, as Sunday, or a legal holiday, the continuance will extend to the first day thereafter on which it can legally transact business.</p>

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

<p>1. Summons: service on corporation. Under Sec. 912 of the civil code, a summons against a corporation may be served upon its chief officer, if he be found in the county ; if not so found, then upon its cashier, treasurer, secretary, clerk, or managing agent; or if none of these can he found, by copy left at the office or usual place of business of such corporation, with the person having charge thereof. This, as well as section 914, applies to foreign corporations, except where there are special provisions to the contrary.</p> <p>2. Enjoining Judgment: pleading. Where it is sought to enjoin a judgment upon the ground that the plaintiff has a defence to the action, and it would be inequitable and UDjust to enforce the judgment, the facts constituting- the .alleged defence must be pleaded, and it is not sufficient to merely allege that plaintiff had such a defence.</p> <p>3. Railroad; failure to deliver goods. Upon the facts proved, Held, That the loss was not occasioned by the act of God, and that the plaintiff was liable for the loss.'</p>

<p>1. Appeal from Justice of Peace. Under sections 1008 and 1011 of the code as it existed in 1886, an appellant had thirty days from the rendition of the judgment in which to file his transcript in the district court, and until the second day of the next term of the district court, after the thirty days. Union Pae. B. B. Co. v. Mar.ston, 22 Neb., 721.</p> <p>:2. -: jurisdiction op district court. Where a transcript is filed by either party on or before the thirtieth day, or on or before the second day of the first term of the district court occurring after such thirtieth day after the rendition of the judgment, the court will thereby acquire jurisdiction of the case. Id.</p> <p>3. Judgment: injunction: pleading and proof. Before a judgment of a district court will be enjoined on the ground of the want of jurisdiction in such court to render it, such want of jurisdiction must be made to appear by allegation in the pleadings, as well as by proof.</p>

<p>Trespass: possessory right insufficient to maintain. 'T. G.,in 1881, entered upon a certain forty acre tract of land cornering with her farm, which land had been patented to David Mc-Conaghy in 1869, upon an entry thereof made many years before, and which she, T. G., had purchased at tax sale, for delinquent taxes. She erected a fence on said land, which, with her fence on her own land, which cornered with said forty acre tract, and the Elkhorn river on one side, enclosed a part of said land, which enclosure she used as a pasture for stock from 1881 to the day of the alleged trespass. On the 15th day of June, 1835, F. W. W., having received a deed of said forty acre tract of land from the grantee of said patentee, went upon said land, notified T. G. to remove her stock therefrom, which she refused to do. He, on the same day, commenced the erection of a wire fence, which, with the other fences and the river aforesaid, enclosed the whole of said land, including the parts thereof enclosed by the fence of T. G. On the day following, F. W. W. finished,his fence, and just before its completion drove the stock of T. G. through said fence and off of the land (except one horse which was lariated on the land). T. G. almost immediately, and on the same day, broke down the said wire fence and drove her stock back on the land. In an action of trespass by F. W. W. against T. G. for breaking the fence and returning her stock to said land, Held, That F.’ W. W. was not in such possession of the land as to authorize him to maintain the action.</p>

<p>1. Limitation of Actions: account. In an action on an account, in which a bar by the statute of limitations might be pleaded as a defense, the plaintiff alleged, in substance, that prior to the commencement of the suit the defendant executed to plaintiff a deed to certain real estate in another county, but that such deed, although absolute on its face, and containing no reference to the account, was only intended as a mortgage to secure the debt. Upon the trial it was insisted that the execution of the deed or mortgage was an acknowledgment of the debt or liability in writing, and therefore if the statute of limitations had otherwise run against the action it was thereby taken out of the limitation. It was held that the execution of the deed, even if intended as a mortgage only, was not an'acknowledgment in writing of an existing liability, debt, or claim, within the provisions of section 22 of the civil code, there being no reference made to the debt in the deed.</p> <p>2. -: -. In such action, the items of the account had nearly all been furnished more than four years prior to the commencement-of the suit, the plaintiff’s testimony was to the effect that the debt had been contracted under a special contract providing for the payments to be made for a part of the material within thirty days after it was furnished, the remainder when defendant’s dwelling-house was completed, the demand for that which had been furnished on the thirty day’s credit was barred by the statute of limitations at the .time of the commencement of the action. It was held that, if this testimony was correct, the district court erred in rendering j udgment for the whole claim.</p> <p>3. -: -: JUDGMENT. In such ease it was the duty of the court to apply all the payments made before the bar of the statute, to the liquidation of that part of the debt which was barred; and if any part of the plaintiff’s claim was not barred, to Tender judgment thereon for the amount due.</p>

<p>Appeal from the district court of Gage county. Tried :below before Appelget, J.</p> <p>Thompson Homesteads, Secs. 342 — 4. Magee v. Magee, 51 111., 501. Lassen v. Vance, 8 Cal., 271. Nichols v. Over acker, 16 Kan., 54. Fournier v. Fournier, -45 Mich., 417. Jacoby v. Orowe, 30 N. W. R.", 441. Smith v. Cremer, 71 111., 185. Fitzhugh v. Smith, 62 111., 486. Poole 'v. Gerrard, 65 Am. Dec., 488. Wells v. Lamb, 19 Neb., 356. Fdgell v. ILagens, 5 N. W. R., 138. Wilson v. Christopher son, 53 Iowa, 481. Brown v. Russell, 105 Ind., 46.</p> <p>Aultman Taylor Co. v. Jenláns, 19 Neb., 209. Goodrich v. Brown, 63 Iowa, 247. Moore v. Reaves, 15 Kan., 150. Stinson v. Richardson, 44 Iowa, 373. Amphlett v. Hubbard, 29 Mich., 298. Barnett v. Mendenhall, 42 Iowa, 296. Dye v. Mann, 10 Mich., 291. Morris v. Ward, 5 Kan., 239. Bliss Code Pleading, Sec. 396. Sandwich Mnfg. Co. v. Trindle, 33 N. W. R., 79. Vaughn v. Black, 29 N. W. R., 523. 25 Cent. Law Journal, 125.</p>

<p>■Conversion: evidence. The plaintiff’s cause of action was, that the defendant and one H. had taken possession of certain horses and wagon, the property of one MeG., on which plaintiff held a chattel mortgage, and sold the same; the defense was a general denial. The point of contention being the identity of certain horses and wagon sold by defendant and II. with the mortgaged property, the evidence on which point was conflicting, the plaintiff offered, and the court admitted in evidence, a written offer of compromise and settlement made by him to defendant, and-several letters written by defendant to plaintiff in response to such offer of settlement and compromise. Held, Error, and a new trial awarded.</p>

<p>Error to the district court for Thayer county. Tried Ibelow before Morris, J.</p> <p>Armstrong v. Freeman, 9 Neb., 11. Phans v. DeRoe, 15 Id., 631. Newman v. Mueller, 16 Id., 523. Bond v. Dolby, 17 Id., 491.</p> <p>Mich. Air Line R. R. v. Barnes, 6 N. W. R., 651. R. R. v. Birkett, 62 111., 332. Fitzgerald v. Fitzgerald, 16 Neb., 413. Green v. Chicago, 97 111., 370.</p>

<p>1. Attorney and Client: fees. Where an attorney enters into a contract with a client to prosecute an action to final judgment for a stipulated sum, and such attorney employs a second one to assist him in the case, the client will not be liable for fees for such second attorney, unless he, in some manner, requests his employment or retention in the case.</p> <p>a, -: FEES OF ATTORNEY EMPLOYED TO ASSIST. Where an attorney residing in a particular county brought an action in the district court of another county, and after the filing of the petition wrote to a firm of attorneys in the county where the action was brought, requesting them to file the proper pleadings to make up the issues, and informed them that to enable them to do so his client would call upon them to state the necessary facts, and saying, “I will see you paid for your trouble,” and the client thereupon called upon said attorneys a number of times, and they filed the necessary papers to make up the issues, and assisted in the trial of the case, and in procuring a decree for the client, nothing being said by her to them about the contract made by her with the attorney who filed the petition, and they had no knowledge of such contract, Held, That the client was liable for the fees of the attorneys employed to assist in the case.</p> <p>3. -: guaranty OF payment. A promise by a party to “ see you paid for your trouble,” is not an absolute promise to pay, but a guaranty that payment shall be made.</p>

<p>Error to the district court for Saunders county. Tried below before. Marshall, J.</p> <p>S. O. & P. R. R. Co. v. Brown, 13 Neb., 320. R. V. R. R. Co. v. Finh, 18 Id., 82. Shawang v. Love, 15 Id., 142.</p> <p>Latham’s Appeal, 9 Wall., 145. Baoon v. Lawrence, 26 111., 53. Qoodenow v. Perry, 12 Iowa, 350. Fall River R. R. v. Chase, 125 Mass., 483.</p>

<p>1. Pleading: petition: action on contract. .The allegations of a petition in an action should consist of “ a statement of the facts constituting the cause of action,” hut not of the collateral evidence by which such facts are to he established ; and where an action was brought upon a contract in writing, set out in the petition, whereby the payment of all notes taken by defendants as the agents of plaintiff was guaranteed, but the contract was so written as to render it doubtful whether the guaranty was of notes taken prior or subsequent to the execution of the guaranty, and where the petition contained the allegation that it was intended by the parties to the contract that the guaranty should apply to the notes taken subsequent thereto, and also contained letters written by defendants to plaintiff tending to show such to have been the intention of the parties, it was held that the order of the district court striking the letters out of the petition, upon defendant’s motion, was correct.</p> <p>2. Contract: construction. While it is the province of the courts to construe contracts, yet where the meaning of a contract is obscure and depends upon facts aliunde in connection with the written language, the question of construction may he one of fact for the jury. First Nat. Bank v. Dana, 79 N. Y., 108.</p> <p>3. Guaranty: defense : verdict. In addition to the matter of the construction of a written guaranty of the payment of certain promissory notes, in an action thereon, the defendants pleaded as a defense the want of diligence on the part of the plaintiff in the collection of the notes described in the petition, and by which they were discharged from their undertaking as such guarantors. It was held that, although the verdict of the jury might not he sustained by the evidence as to the interpretation of the contract, there was sufficient evidence upon the latter branch of the case, under the instructions of the court as given, to sustain the verdict. .</p>

<p>Error to the district court for York county. Tried below before Norval, J.</p> <p>Judge v. Vogel, 38 Mich., 569. Careio v. Mathews, 49 Id., 302. Gaviganv. Scott, 51 Id., 375. Comstock v. Smith, 20 Id., 344. Thompson v. Toeing, 13 Neb., 386. Koch v. Rhodes, 10 Id., 445. Ford v. Williams, 24 N. Y., 359.</p> <p>Broadwater v. Jacoby, 19 Neb., 77. Masters v. Marsh, Id., 462.</p>

<p>Res Adjudieata: estoppel. In an action upon two of three promissory notes given for the purchase price of a reaper and mower, it was shown that an action had been brought upon .the other of said notes by the plaintiff against the defendant, and that in that case the defendant had answered, alleging a breach of warranty in the sale of the machine on the part of the plaintiff, damages arising therefrom, and that two other notes, negotiable in form (being the ones sued on in this case), had been executed and delivered to the plaintiff. The trial in that case resulted in a judgment in favor of the defendant for a sum equal to the purchase price of the machine. It was Held, First, That such an adjudication was not a bar to the plaintiff’s right to recover on the two notes sued on in this action. Second, That in an action upon the remaining two notes, the judgment in the former action estops the defendant from setting up in defense any breach of the contract upon the plaintiff’s part.</p>

<p>Original application for mandamus.</p> <p>Brown v. Jones, & Nev., 374. Steppaoher v. Beneau, 25 Miss., 114. Moore-v. Devol, 14 Iowa, 112. Wells Questions, Law, and Fact, 15.- Lloyd v. JBrinck, 35 Tex.,1. High Ex. Leg. Rem., Sec. 235. Williams v. Saunders, 5 Cold., 81. Ex parte Bradstreet, 7 Pet., 634. U S. v. Peters, 5 Cranch, 115. Haight v. Turner, 2 Johns., 371. Manor v. McCall, 5 Ga., 522. State v. Judge, 13 La. Ann., 481.</p> <p>People v. Judges, 20 Wend., 658. Ex parte Hoyt, 13 Peters, 279. Ex parte Whitney, Id., 404. High Ex. Leg. Rem., Sec. 188.</p>

<p>1. Bill of Exceptions. Objections to matters of formina bill of exceptions, by which it is sought to quash the bill, must be made within a reasonable time after the bill is filed in the appellate court; and where not made for more than a year after the filing of the transcript, and after the case is set for trial and the plaintiff has prepared and printed his briefs on the main issue, such objections will be deemed to be waived.</p> <p>2. -: SETTLEMENT. Where an original bill of exceptions is sent by the clerk of a district court to the supreme court, it is his duty to certify the same ; but this objection may be waived by the parties, and will he deemed to be waived where the- bill is treated by the adverse party as perfect, either by affirmative acts or long acquiescence.</p> <p>3. Trial: instructions to jury. The act of 1875, relating to instructions to juries, requires all instructions to be in writing and filed with the clerk before being given to the jury, unless the writing is waived, etc. Even if delivered orally, the statutes seem to require them to be reduced to writing and filed with the clerk before the case is finally submitted, in order that exceptions may be taken by either party, if desired, and that the jury may have the benefit of such instructions in considering their verdict.</p> <p>4. -r: ORAL INSTRUCTIONS. Where instructions were delivered orally and reduced to writing by Ibe stenographic reporter, and inserted in the bill of exceptions, but not certified by the judge, Held, That a motion to strike them out of a bill would be sustained.</p>

<p>1. School District: boundaries. The power to change the boundary of a school district rests with the county superintendent, and is to be exercised by him at his discretion, only upon petition signed by one-third of the legal voter's of such district.</p> <p>2. -: -: DISCRETION OF COUNTY SUPERINTENDENT. No cause of action will accrue to the district, as a corporation, against the county superintendent for the manner in which he may exercise his discretion in changing the boundary of such district upon a petition signed by at least one-third of the legal voters thereof.</p>

<p>1. Injuries to Person: negligence. A stranger in an incorporated village after night-fall, passing along a public street between the post-office and one of the principal hotels, came to a break in the sidewalk. Instead of turning back, he endeavored to descend to the ground (a distance of about three feet), at the end of the sidewalk. In so doing in a careful manner, he fell upon a saw bench, which had been left on the ground at the end of said sidewalk, whereby he was injured. JECeld, Not guilty of contributory negligence.</p> <p>2. Evidence. The rule as to proof of written intruments and records, Reid, Not to preclude that of oral testimony of the existence of such instruments and records, preliminary to their introduction or proof of loss.</p> <p>3. -: admissibility. Held, Also, that the order of the admission of evidence is a matter of discretion with the trial court.</p> <p>4. Trial: verdict. The jurors, on their retirement, proceeded to mark down the sum of damages, according to the opinion of each juror respectively, which several sums they added together, taking the gross sum as a dividend, taking their own number as a divisor, and agreed upon the quotient as the amount of their verdict, and returned it into court as such, without any agreement in advance of ascertaining such quotient. Reid, That this method was within the rule of propriety, and not obnoxious to the law.</p>

<p>Error to the district court for Richardson county. Tried below before Broady, J.</p> <p>Hutchinson v. Hubbard, 31 N. W. R., 245. Woolheather v. Rislty, 38 Iowa, 491. Rafferty v. Buckman, 46 Id., 195. Warrick v. Rornids, 17 Neb., 411.</p> <p>Wight-man v. Devere, 33 Wis., 579. King v. Bell, 13 Neb., 414. Roberts v. Taylor, 19 Id., 184.</p>

<p>Error to the district court for Lancaster county. Tried below before Chapman, J.</p> <p>Snow-den v. Craig, 20 Iowa, 477- Humphries v. Marshall, 12 Ind., 609. Brady v. O’Brien, 23 Cal., 244. Van Valkenburg v. Huff, 1 Nev., 142. First instruction. St. Louis v. State, 8 Neb., 406. Callanan v. Shaw, 24 Iowa, 441. Shellenbarger v. Nafus, 15 Kan., 547. Evidence inadmissible under the pleadings. Baldwin v. B. B., 4 Gray, 333. Agnew v. Johnson, 22 Penn. State, 471. • Plimpton v. Gardier, 64 Maine, 360.</p> <p>Oity of Lincoln v. Walker, 18 Neb., 245. Lrvin v. Wood, 4 Robt., 138. Congreve v. Morgan, 18 N. Y., 84. Hart v. Mayor, 9 Wendi, 607.</p>

<p>-1. Evidence examined, and Meld, To sustain the verdict.</p> <p>2. Evidence. In an action for the price of certain grain alleged to have been delivered by the plaintiff to the defendant, the weigh cheeks issued by the agent of the defendant in the usual course of business are competent evidence for the purpose of proving the number of bushels or pounds of grain delivered.</p> <p>3. -: PARTNERSHIP. In an action against a company or partnership composed of persons whose names are given in the petition, the certificate of partnership, as shown by the records of the county, is admissible for the purpose of showing the names of the members of such firm or partnership.</p> <p>4. A Hew Trial will not be granted for errors not prejudicial to the party complaining.</p> <p>5. Impeaching Witness. One of the methods of impeaching a witness is by showing that he has made statements out of court at variance with his testimony. This rule may be applied to party to action as well as to a disinterested witness, and the fact that the matter upon which a witness testified may involve an admission which might be proved as having been made against his interest would not change the rule.</p> <p>6. Sale: market value oe grain. Where, in an action for the purchase price of grain alleged to have been delivered upon a contract by which the price was fixed and agreed upon, the answer being a general denial, the parties upon the trial offered evidence, without objection, tending to show the market value of the grain at the time of its delivery, it was proper for the court to instruct the jury, in substance, that, if they found that the grain was actually delivered and no contract was made as to the price, the plaintiff might recover the value of the grain so delivered.</p>

<p>1. Riparian Rights: accretions: trespass. Where an island in the Platte river had been surveyed by the United States and sold to a party who received a patent therefor, such party or his grantee will become the owner of any accretions to such island or of land formed by avulsion from, the washing away of the upper part of the island and the sudden formation of new land on the lower end thereof, and a party cutting trees growing upon the land so formed will be liable to the owner thereof in trespass.</p> <p>% -' — : -: filum AQTL33. While the general rule is, that a grant of land on a stream not navigable includes all islands or parts of islands between the shore and the centre thread of the stream, unless reserved, yet, where there is a clear reservation of the islands, either expressly or by necessary implication, they Bo not pass to the grantee, and the filum aqux which bounds the grant is the centre thread between the shore and the island. In such cases two fila agiiee are established — one on each side of the island.</p> <p>3. -: MAIN-LAND: ISLANDS: SEPARATE SURVEYS. Where the main-land and an island have been separately surveyed, and purchased by different parties as distinct tracts, the grantees of the main-land cannot claim the island as included in their grant.</p> <p>4. Motion for New Trial. Where two or more parties are sued jointly, and there is a verdict and judgment against them, and either defendant desires to raise a question peculiar to himself in the motion for a new trial, he should file a separate motion and not join with the other defendants.</p>

<p>■ Error to the district court for Dixon county. ■ Tried below before Crawford, J.</p> <p>Jones v. Seward County, 5 Neb., 561. Lynam v. Anderson, 9 Id., 376. Sumner & Co. v. Colfax County, 14 Id., 524.</p>

<p>Motion to dismiss proceedings iu error from Adams county.</p>

<p>1. Practice: transcript for supreme court. Where no objection is made to the summons, or to the return of the officer thereon, such summons should be omitted from the transcript. So with journal entries not involved in the case, and the costs of such immaterial matter, if the proper motion is made, will be taxed to the party at fault,</p> <p>2. Evidence. The testimony, Held, To sustain the substantive allegation of the petition.</p> <p>3. Answer: general denial : evidence. Wh.ere the answer is a general denial, the testimony will be confined to facts which tend to prove or disprove the allegations of the petition, and a defendant will not be permitted to interrogate witnesses on cross-examination upon matters not involved in the issue but in the nature of an affirmative defense.</p> <p>4. Damages: attorney fees. As vindictive damages cannot he recovered in this state, attorney fees are not recoverable in actions of tort, except where specifically provided for by statute.</p>

<p>Election: tie vote: mandamus. In an application for a mandamus against the incumbent of a county office, requiring him. to deliver the books, papers, and moneys of the office to the relator, who claimed the office by virtue of a He vote at the election, and a determination of such tie in his favor by lot, Held, That the certificate should show specifically the manner in which such lot was determined ; and where it is shown that the respondent was not present, and took no part in such determination, the certificate should show that the county clerk drew for him, and that in such drawing and the determining of such lot, the said clerk, for the respondent, was an actor, equally with the relator, and that such lot was conducted and determined in such manner as to preclude the possibility of forethought or design on the part of any of the actors or canvassers by which the determination of the lot might have been influenced to the disadvantage of the respondent.</p>

<p>Error to the district court for Hamilton county. Tried below before Norval, J.</p> <p>Salsbury v. Philadelphia, 44 Penn. State, 303. Moon v. Howard County, 97 Ind., 176. Roberts v. Pottawatomie County, 10 Kan., 29. Hendrieles v. Commissioners, 35 Kan., 483.</p> <p>Cage Co. v. Fulton, 16 Neb., 5. Ti-ustees v. Ogden, 5 Ohio, 23.</p>

<p>Hon-resident Pauper: county not liable eor medical services. A non-resident became sick in Aurora, tbe county-seat of Hamilton county. He had neither money nor property with which to 'procure medical aid. A druggist furnished medicine upon the order of a physician who attended him in his sickness. No application was made to the overseer of the poor, nor to the county board, for aid, and the medicine was furnished without any solicitation or direction from any person having authority to create an indebtedness against the county. In an action against the county upon an account for the medicine fur-nished, it was Held, That there was no legal liability against the county.</p>

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

<p>Error to the district court for Fillmore county. Tried below before Morris, J.</p> <p>1 Daniel Neg. Inst., Sec. 154. Fletcher v. Blodgett, 16 Vt., 26. Perry v. Bigelow, 128 Mass., 129. Costello v. Crowell, 127 Id., 293. Benedict v. Cowden, 49 N. Y., 396. Springfield Bank v. Merrick, 14 Mass., 322. Forméis Bank v. Frwing, 78 Ky., 266. Blake v. Coleman, 22Wis., 416.</p> <p>1 Daniels •Neg. Inst., 153, 156. Riley v. Bickens, 19 111., 29. ICnoles v. Hill, 25 111., 288. Hollen v. Davis, 59 Iowa, 144.</p>

<p>Error to the district court for Hall county. Tried below before Tiffany, J.</p> <p>Ruge v. State, 62 Ind., 388. National Assw. v. Miller, 2 S. W. Rep., 900. Hkhn, dson v. Goddard, 23 How., 28. Moore & Cozvne v. Ilerron, 17 Neb., 700. Polin v. State, 14 Id., 546.</p> <p>Hemmensv. Bentley, 32 Mich., 89. Beithmiller v. People, 44 Mich., 284. Estes v. Mitohell, 96 Mass., 156.</p>

<p>Error to the district court for Cass county. Tried below before Chapman, J.</p> <p>Civil Code, Sec. 484. Davidson v. Waldron, 31 111., 121. Ohittenden v. Rogers, 42 Id., 100. Wood v. Augustine, 61 Mo., 46. Gresson v. Stout, 17 Johns., 116. Lininger v. Raymond, 12 Neb., 19. • Minor v. Herriford, 25 111., 344.</p> <p>Herman Chattel Mortgages, 68. Mitehéll v. Badgett, 33 Ark., 387. Freeman Ex., Sec. 341. Hunt v. Louelcs, 38 Cal., 372. Buchanan v. Tracey, 45 Mo., 437. 1 Bouvier, 34. Farrington v. Sinclair, 15 Johns., 428.</p>

<p>Report of Referee. A cause was referred to a referee, for the purpose of taking testimony and reporting certain facts thereon to the court. Testimony was taken, and the referee made his report. After the report was filed, exceptions were filed thereto, together with a motion to set the report aside. In support of and opposition to these motions, affidavits were filed, by which it became apparent that there was a clear misunderstanding between the referee and counsel at the time the evidence was taken, and that, by reason of such misunderstanding, one party to the action was prevented from introducing his testimony. Held, That notwithstanding the referee acted in good faith, the report would he set aside.</p>

Tried below before Tiffany, J. Instructions asked for on question of intoxication, should have been given. Smith v. State, 4 Neb., 288. State v. Westfall, 49 Iowa, 328. Premeditation and deliberation not shown. Milton v. State, 6 Neb., 137. Schlencker v. State, 9 Id., 241. Graft v. State, 3 Kan., 450. Threats. People v. Bezy, 67 Cal., 223. Clarke v. State, 78 Ala., 474. Reasonable doubt. Cowan v. State, 22 Neb., 519. Argument. Borden v. Briscoe, 36 Mich., 255.

<p>Counties: claim for services oe attorney in defending indigent PRISONER. The certificate of the judge of the district court, that a claim ior compensation to counsel appointed hy such court to conduct the defense of a person charged with felony, has “been examined and allowed by the court,” is not conclusive upon the county commissioners as to the amount which should be allowed for such services. It is prima fade evidence that the amount allowed by the district court is correct, but the county board has the right to re-examine the account and allow so much as they may think j ust.</p>

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

<p>Limitation of Actions: cities of second class. The general provisions of the code, limiting the time in which actions may be brought, applies to cities of the second, class having more than five thousand inhabitants, etc., and an action against such ' a city for negligence, by reason of which a party has sustained injury, will lie against it if brought within the time thus limited, notwithstanding a provision in the act creating such cities, that the action shall be brought within six months.</p>

<p>1. United States Homestead: public road. Where a party has entered land under the homestead law of the United States, and made final proof, and complied with the law on his part to entitle him to a patent, he may make a valid dedication of a portion of said land for a public road, although the patent has not been issued.</p> <p>2. Roads: dedication. Ten years uninterrupted use of a public road will create a presumption' of dedication, but a much shorter period will be sufficient, where the act of the owner from which the dedication is inferred is clear and unequivocal, and accompanied or immediately followed by public use.</p> <p>3. —-: -. Unless there is some clear' and unequivocal manifestation of an intention to dedicate, dedication will not be presumed until after the lapse of ten years.</p> <p>4. -: EVIDENCE: TRESPASS. A party owning land, in fencing the same, left a strip along the section line, a rod or more in width, apparently for the use of the public for a public road, and it was traveled as such; but there was no proof of dedication or an intention to dedicate any of the land within the enclosure. Held, That without such proof the jury would not be justified in finding that any of the land within the enclosure had been dedicated to public use, and, therefore, a road overseer who removed the fence as an obstruction to the highway would be liable for the trespass.</p>

<p>Eeeoe to the district court for Saline county. Tried below before Moeeis, J.</p> <p>2 Parsons Contracts,'501. Thayer v. Lapham, 13 Allen, 26. Robinson v. Payne, 58 Miss., 690. Pratt v. Pratt, 42 Mich., 174. Grant v. Dabney, 19 Kan., 388. Robertson v. French, 4 East., 130.</p> <p>Glass v. Hulbert, 102 Mass., 41. Osborn v. Phelps, 19 Conn., 72. Elder v. Elder, 10 Me., 86. MeNaughlin v. Partridge, 11 Ohio, 223. Hunt v. Rousmaniere, 2 Mason, 342.</p>

<p>Contract: specific performance. The parties contracted with each other, June 2, 1884, for the purchase and sale of certain real estate in Crawford county, Missouri, and Council Bluffs, Iowa, respectively, executing deeds, and depositing them, together with defendant’s certified check for $500 additional consideration, in the Merchants National Bank of Omaha, to be paid when the defendant should ascertain that the plaintiff has a good title to the Crawford county land, the parties agreeing to make good any deficiency of title, respectively. In an action for specific performance, Held, That the plaintiff, in tendering an abstract of title, including a sheriff’s deed to purchaser at tax sales, and his own deed of -warranty, on the 8th of September, 1884, was possessed of a good, marketable title; that he had complied with his contract within a reasonable time, and that the defendant be required to accept and specifically perform the terms of the contract.</p>

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

<p>Error to the district court for Wayne county. Tried below before Crawford, J.</p> <p>Freeman Judgments, Secs. 123, 127. Thatcher v. Powell, 6 Wheat., 119. Gray v. Larrimore, 4 Sawyer, 638. Wade on Notice, Secs. 1029,1031. King v. Harrington, 14 Mich., 532. Cissell v. Pulaski County, 10 Fed. Eep., 893. Sioux City & P. P. Co. v. Washington Countv, 3 Neb., 41. Spiers v. Halstead, 71 North Carolina, 209.</p> <p>Fulton v. Levy, 21 Neb., 478. McCormick v. Paddock, 20 Id., 486. Fouts v. Mann, 15 Id., 172. Carey v. Peeves, 32 Kan., 718. Grebe v. Jones, 15 Neb., 315. Gillespie v. Thomas, 23 Kan., 138. O’Brien v: Gaslin, 20 Neb., 347. Taylor v\ Courtnay, 15 Id., 190. Foreman v. Carter, 9 Kan., 674.</p>

<p>Error to the district court for Red Willow county. Tried below before Gaslin, J.</p> <p>Matthews v. Sowle, 12 Neb., 398. Fultz v. Winter, 9 Pac. Rep., 316. Stillman v. Fitzgerald, 33 N. W. Rep., 564. Webb v. Paxton,- 32 Id., 749. McDonald v. Boeing, 5 Id., 439. Williams v. McGraw, 18 Id., 227.</p> <p>Potvin v. Curran, 13 Neb., 304. Martley v. Dorr & Co., 15 Id., 452. Anderson v. Cox, 16 Id., 10. Newman v. Mueller, 16 Id., 523.</p>

<p>1. Deceit: evidence. In order to maintain an action for deceit, it is not only necessary to establish the telling of an untruth, knowing it to he such, hut it is equally necessary that it he shown that the plaintiff had a right to rely, and did rely, upon the representations made, and that he altered his condition in consequence thereof, and suffered damages thereby.</p> <p>2. -: --. A defendant when sued for damages resulting from an alleged misrepresentation of facts by him, cannot be-heard to contend that he was not a person upon whose information the plaintiff had a right to rely.</p> <p>3. Instructions to a jury must be based upon the evidence adduced upon the trial.</p> <p>4. ---. An instruction by which it is sought to cover the whole-case, and upon which, if met by the evidence, the jury is instructed to find in a certain way, should include all the elements, necessarily involved in the case and within the evidence.</p> <p>5. Fraudulent Representations. A plaintiff instituted his-. action against a defendant upon a promissory note executed by such defendant. The petition contained a second count, or cause of action, in which it was alleged that the promissory note was given for the purchase price of a number of sheep sold to the maker of the note, hut that another party, who was made defendant, was jointly interested in the purchase of the sheep, with the maker of the note, and should have signed the note, whereby he was indebted to the plaintiff, etc. Upon a demurrer to the petition being filed by the person who had not signed the note, the action was voluntarily dismissed as to him, which dismissal was an abandonment of the second count in thee petition. It was Eeld, That in an action afterwards brought, by the plaintiff against such third party for fraudulent representations as to the financial standing of the maker of the note, the prior suit was not a bar to the action.</p>

<p>1. Libel and Slander: privileged communications. Every person having reasonable and probable cause to believe that a crime has been committed, has the right to communicate his suspicion to a magistrate having jurisdiction of the case; but the existence of reasonable, and probable cause for the suspicion is essential to make the communication privileged.</p> <p>'2. -: -. One P., a merchant, applied to a justice of the peace for a warrant against one O., a married woman, on the ground that she had taken a pair of overshoes of the value of $1.15 from his store. The justice assured P. that he was acquainted with 0., and that she would not commit the act complained of, and that there was a mistake, and offered to pay for the overshoes, and refused to issue a warrant. A few hours afterward, P. again applied to the justice for a warrant, saying, in effect, that O. had stolen three pairs of shoes from his store, and he could prove it. The justice again refused to issue a warrant, saying, in effect, that P. was mistaken. On the next day, P., with a constable, went to the residence of O., without process, and in the presence of her husband and children charged Mrs. O. with the larceny of the shoes, and under threats of arrest procured payment for the shoes, and one dollar and a half for costs. There was of testimony tending to show that Mrs. O. had paid for the shoes when they were procured. Held, That the communications of P. were nob privileged, and that a verdict against him for $325 was fully sustained by the evidence.</p>

Tried below before Neville, J. Title acquired by adverse possession may be made basis of ejectment suit. Horbach v. Miller, 4 Neb., 31. Pederieh v. Searle, 5 Serg. & R., 236. Ford v. Wilson, 35 Miss., 490. Pre-emption within limits-of city. Byron Reed, 12 Hill’s Leading Cases, 74. Lewis v. Seattle, 2 Copp L. L., 1018. Minter v. Cromelin,. 18 How., 87. Root v. Shields, 1 Woolw., 362. Statute-of limitations.

<p>Contempt. The power to punish for violation of its orders or judgments is inherent in every court having common law jurisdiction,, without any expressed statutory authority.</p>