Volume 24 — Nebraska Reports

<p>1.• Bastardy: jurisdiction of county judge. The county-judge has jurisdiction to hear proceedings instituted under chapter 37 of Compiled Statutes, entitled “Illegitimate Children.”</p> <p>2. -: RESIDENCE OF MOTHER: PROSECUTION, WHERE COMMENCED. Where an unmarried woman resided in the county of C., and while so residing in the said county became pregnant, but prior to ber confinement, and for that purpose, she was removed to the Home of the Friendless, in the county of L., and the child was there born, it was Reid, That a prosecution in bastardy could be there maintained upon her return to the county of C., there being no proof that- she had permanently abandoned the county of C. as her residence.</p> <p>3. -: evidence. Ordinarily the decision of a trial court in favor of a plaintiff in error cannot be assigned as error upon which to base a reversal of a judgment; hence in proceedings in bastardy, where the attorney conducting the prosecution instructed the prosecutrix to turn the face of the illegitimate child so that the jury could observe it, and which, upon objection being made thereto, was held by the court to be improper, no error could be assigned.</p> <p>■4. -: argument OF attorney. In proceedings in bastardy, where the defendant, although present in court, did not take the witness stand as a witness in his own behalf and deny the charge made by the prosecutrix, it was held competent for the attorney for the prosecutrix, in arguing the case to the jury, to refer to such want of denial on the part of the accused.</p> <p>5. Evidence examined, and Held, To support the verdict of the jury.</p>

<p>1. Counties: erection oe new county erom old county. Under the provisions of Sec. 10, Art. I. of Chap. 18, Compiled Statutes of 1887, it is the duty of the county board to make an order providing for the submission of the question of the erection of a new county to a vote of the people of the county to be affected, at the next succeeding general election, when a petition therefor, stating and describing the territory proposed to be taken for such new county, together with its name, and signed by a majority of the legal voters residing in the territory to be constructed from such county, shall be presented.</p> <p>2. -: -. When it is sought to erect from a county more than one. new county, and petitions for the submission of the proposition to erect such new counties are severally presented, they may be separately submitted at the same election, without reference to the number of propositions to be voted upon thereat.</p>

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

<p>Appeal from the district court of Saline county. Tried below before Broady, J.</p> <p>cited: Comp. Stat., Ch. 78, Secs. 83, 91, 97.</p>

<p>1. Evidence. Under the code of civil procedure a written contract is admissible in evidence under a general allegation that the party contracted, without indicating how.</p> <p>2. Trespass de bonis asportatis: damages. In an action in the nature of trespass de bonis asportatis, by a mortgagee of goods, in possession, against a sheriff, for wrongfully levying on the same, where the value of the goods taken does not exceed the amount or balance actually due on the debt for which said goods were held, the actual value of the goods, Held, To be the measure of the plaintiff’s damages, and where a verdict exceeded the amount of such value the plaintiff was required to remit the excess, or the verdict would be set aside.</p>

Original application for a writ of habeas corpus. First. That construction should be given the bastardy act, and the previous adjudications thereof, which will most nearly effect the object of the statute, best promote the ends of justice between the parties interested, and most certainly accomplish the common weal. Second.

<p>1. The Evidence considered, and Held, Insufficient to sustain the verdict.</p> <p>2. Negotiable Instruments: principal and agent. J. B. D., a banker, had in his possession a note, past due, for collection, on account of the payees, applied to the maker, O. P., for payment, who was unable to pay in cash, took from him in payment a note made by one C. H., not yet due, agreeing to afterward deliver the note of C. P. to him, but retained the same until after the C. H. note became due, which not being paid, returned the note of C. P. to the payees with the C. H. note attached thereto. In an action by the payees against C. P. on his note, commenced about a year after the maturity of the C. H. note, which was unpaid and uncollectible, it being in evidence that J. B. D. had no authority to take the C. H. note in payment of the C. P. note, and there being no evidence of any notice or knowledge on the part of the plaintiffs that said note had been taken in payment, Held, That the plaintiffs were not bound by the agreement of J. B. D. to take said note in payment, and a verdict for the defendant set aside and a new trial granted.</p>

<p>1. Real Estate: deed : mortg-ase. Where an absolute deed is given to secure a loan, it will be treated as a mortgage.</p> <p>2. -: bona eide PURCHASER: Redemption. Where certain real estate was conveyed to one E. F. G., by an absolute deed, and by E. F. G. to his brother, H. J. G., the origina deed being in fact a mortgage, Held, 1st, That H. J. G. had notice of sufficient facts to put him upon inquiry, and that he was not a tona fide purchaser. 2d, That the plaintiffs were entitled to redeem, upon paying the amount of the loan with interest.</p> <p>3. Usury. Where a borrower goes into a court of equity to seek relief from an usurious contract, he must tender the amount of the principal and lawful interest, and it is the duty of the court in granting relief to render a decree for the actual amount ot the loan, with 7 per cent interest thereon.</p>

<p>Appeal from the district court for Douglas county. Tried below before Neville, J.</p> <p>cited: Campbell v. Thomas, 42 Wis., 441. Thayer v. Luce, 22 O. St., 62. Drury v. Young, 58 Md., 546. McWilliams v. Lawless, 15 Neb., 135. Baybold v. Baybold, 20 Pa. St., 308. Bailey v. Sweeting, 9 C. B. N. S., 843. Argus v. Mayor, 55 N. Y., 495. Clark v. Gifford, 10 Wend., 310. Brittain v. Work, 13 Neb., 347.</p> <p>cited: Comer v. Baldwin, 16 Minn., 172. Prutsman v. Baker, 30 Wis., 644. Parker v. Parker, 1 Gray, 409. Campbell v. Thomas, 42 Wis., 437.</p>

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

<p>Error to the district- court for Holt county. Tried below before Kinkaid, J.</p> <p>cited : King v. Poole, 36 Barb., N. Y., 242. McLean v. Wayne Circuit Judge, 52 Mich., 257. Ex parte Langston, 8 Ohio, 599. Clepper v. State, 4 Texas, 242. Ex parte Robinson, 6 McLean, 355. Henry v. Tupper, 1 Williams (Vt.), 518. American Bank v. Lnloes, 7 Md., 380. Con-over v. Mayor, He., of N. Y., 25 Barb. (N. Y.), 513.</p> <p>cited: Bouvier’s Law Dictionary, 15 Ed., Vol. 2, p. 26. Freeman on Judgments, 3 Ed., Secs. 117,118. Sheldon v. Newton, 3 O. St., 494. Pemberton v. Pollard, 18 Neb., 435. '</p>

<p>1. Criminal Law: felony: information. Ia a prosecution upon an information charging a felony, the district court, after information filed, will not, upon a motion to quash, inquire into the form and validity of the complaint upon which the preliminary examination before a magistrate was had, the crime alleged being the same.</p> <p>2. -: defective indictment: information. Where an indictment is returned by a grand jury, which, upon motion to quash, is found to be defective, it is not error for the district court to permit the county attorney to withdraw the indictment and file an information charging the same offense as that contained in the indictment.</p> <p>3. Burglary: information. Sec. 48 of the criminal code describes and defines the crime of burglary. Where a preliminary examination was held upon a complaint charging the crime of burglary with the intent to steal, and the information filed by the county attorney in the district court charges the same offense, hut with the intent to commit a rape, it was held that the same crime, to-wit, burglary, was described, both in the complaint and in the information.</p> <p>4. Criminal Law: caption to information. Where an information was filed in the district court, the caption of which was, “ The State of Nebraska,” and the prosecution thereunder was conducted in the name of “ State of Nebraska,” this was held to be sufficient compliance with the provisions of See. 24 of Art. 6 of the Constitution, which requires that “ all process shall run in the name of the state of Nebraska, and all prosecutions shall be conducted in the name of the state of Nebraska.”</p>

<p>1. Recognizance. In an action on a recognizance taken by a justice of the peace on a complaint and proceedings under chapter 37 of the Compiled Statutes; Held, That the recognizance was valid against a security, although it was not entered of record on the appearance docket of the district court, under section 383 of the criminal code.</p> <p>2. Docket: nunc pbo tunc obdee. The omission of docket entries of established facts from papers properly before the court may be corrected by nune pro tunc orders of the court.</p>

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

<p>1. Mechanic’s Lien. The lien secured to “ Any person or subcontractor ” -by the provisions of section 2, Chap. 59 of the Laws of 1881, entitled “An act to amend chapter 42 of the General Statutes, entitled, ‘ Mechanics’ Liens,”’ does not depend upon the terms of a contract or agreement expressed or implied with the owner of such house, etc., or his agent mentioned in the first section of said act.</p> <p>2. -. The above named act, Held, Not to be in derogation of the provisions of the constitution of the United States, which prohibits the several states from passing “any law impairing the obligation of contracts,” by reason of its provisions being construed to apply to buildings already under contract at the time of the taking effect of said act, so as to give a lien thereon for all labor, skill, and material furnished therefor after the taking effect of said act,</p>

<p>Railroads: right of way: damages: appeal: costs. Under section 97, chapter 16 of the Compiled Statutes, as amended in 1883, where on appeal from an award of damages for property taken for right of way of a railway, and the verdict is less than the amount of the award, neither the railway company nor the land owner will he liable for all the costs of the appeal; hut ordinarily such costs should he divided between the parties.</p>

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

<p>1. Forcible Entry and Detention. In an action of forcible entry and detainer, where the defendant pleaded that he had erected a bake oven and building on the lot at a cost of $500 under an agreement with the lot owner that he would pay him the actual cost of such bake oven and building at any time he desired to give up possession, and that in pursuance of said contract he offered to take $400 for said improvements, which the lot owner refused to pay, Held, Upon the facts stated, not to constitute a defense.</p> <p>'2. -: statute of FRAUDS. The contract above mentioned might have been performed within one year, and therefore was not void undér the statute of frauds because it was not in writing, and an action could be maintained thereon and the value of the property recovered.</p> <p>•3. Beal Estate Deed, When a Mortgage: lease. Where the owner of real estate executes an absolute deed as security for the payment of money, and receives a defeasance in writing, the transaction is a mere mortgage, and the mortgagor, in the absence of a contract to the contrary, is entitled to retain possession of the property; and a lease executed by the grantee in the deed will not entitle the lessee to the possession.</p>

<p>1. Summons: service on.husband: no service on wife: judgment. Where the return to a summons against husband and wife shows that the husband was served personally, but fails to show that the wife was summoned, it will not support a judgment by default against the wife.</p> <p>2. Judgment: satisfaction: execution: levy. A labor judgment was rendered against husband and wife, and an execution issued thereon, placed in the hands of a constable, and the constable, accompanied by the plaintiff’s guardian and attorney, went to the residence of the'judgment debtors, and after various propositions accepted a note from said debtors due in nine months, and secured by a second chattel mortgage on a cabinet organ; the constable was thereupon directed by the plaintiff’s attorney to return the execution without a levy, no fraud being shown. Held, That while a jury might be justified in finding that the note and mortgage were taken in satisfaction of the judgment, they at least extended the credit nine months, and that a levy made six weeks after taking said note and mortgage was unauthorized.</p>

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

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

Original information in quo warranto. 1. The charter of a railroad corporation is the law of our state and the articles of incorporation made thereunder, and is the measure of its power, and the enumeration of those powers implies the exclusion of all others. And the leasing of its franchise and the conveyance of all its property to a competing railroad corporation is beyond the powers of this corporation, and is a willful act of misuser and against public policy. Penn.

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

<p>Ejectment: evidence: damages. In an action in ejectment, where the evidence shows that the defendant was not in the actual possession of the real estate in dispute, receiving no profits therefrom, and that it was uninclosed and unimproved prairie land, no damages can be awarded for use and occupation.</p>

<p>'The Evidence, Held, To sustain the finding and judgment of the district court.</p>

<p>Error to the district court for Eed Willow county. Tried below before Gaslin, J.</p> <p>cited: Anderson v. Hawhe, 3 N. E. Eep., 566. Hind’s Eevised Statutes of 111., 1852, p. 191, Secs. 11 and 12. G-arrish v. Seaton, 34 N. W. Eep., 485.</p> <p>cited: Martin v. Judd, 60 111., 78. Ritter v. Hoffman, 10 Pac. Eep., 576. Graft v. Clark, 38 Iowa, 237. Thomas v. Mueller, 106 111., 36. Sherman v. Bradely, 11 111., 622. Adam v. Arnold, 86 111., 185.</p>

<p>Appeal from the district court of Furnas county. Heard below before Cochran, J.</p> <p>cited: 1 Devlin on Deeds, Sec. 476, p. 470.</p>

<p>1. Contract; time. The contract set out in the case examined, and Held, That time was not of its essence.</p> <p>2. -: notice. The notice set out in the pleading and evidence, Held, Not to apply to the defendant or to the class of purchasers to which he belonged.</p> <p>3. Specific Performance. The evidence of fluctuations in the market value of the land embraced in the contract, Held, Not sufficient under the facts and circumstances of the case to deprive the defendant of his right to a specific execution of the contract for a conveyance of the land upon the tender and payment plead and proved.</p>

<p>1. Wills: CONSTRUCTION 03? WILL: ESTATE 33Y CURTESY. The last will and testament of M. contained the following clause: “Item 3. The farm I purchased from the Welchouse heirs I direct to be sold either at private or public sale, as my executors shall see fit, and the money arising to be equally divided between my daughters, J. M., E. P., R. M., A. M., R. M., and S. M., the share pertaining to my daughter, E. P., to be retained in the hands of my sons, E. Z. M. and G. C. hi., who are hereby appointed trustees for that purpose, and who shall retain the same in trust for the benefit of said E. P. and her children, her husband to have no control over the same whatever; but the said trustees may, with the consent of said E. P., invest the same as they may deem best, so my daughter and her children shall have the benefit of the same without control from her husband.” The share pertaining to the said E. P. of the said fund, being retained by the said trustees, was invested by them in land, the title to which was taken to themselves as such trustees; the habendum, clause of the deed therefor being as follows: ‘ ‘ To have and to hold the said real estate with its appurtenances to the said second parties as trustees of said E. P., they being appointed as such trustees by the will of their father, E. M., of, etc., for her sole and separate use and benefit so long as she may live, and after her death for the use and benfit of her children; the said trustees having the power to sell and convey said land or any part thereof on the written request of said E. P., and her joining with them in any such conveyance.” The said deed also contained the following clause: “ It is further expressly understood and agreed by and between the parties to this deed that said W. D. P., ‘ the husband of said E. P.,’shall have the right to occupy, farm, and control said land tor her so long as he may live or the legal title thereot remains in said trustees.” E. P. died intestate, leaving her husband, the said W. D. P., and their three children surviving her. Held, That W. D. P. took no estate in the said land as tenant by the curtesy.</p> <p>2. -: -. It is a rule in the construction of deeds or wills, that the intention of the grantor or testator, as manifested by the words of the writing in connection with surrounding circumstances, must be carried into effect, provided in so doing no rule of law is violated or sound policy disturbed. Poole v. BlaMe, 53 111., 495.</p>

<p>1. Libel and Slander: instructions to jury. An instruction to a jury by the district court, that an alleged libelous article set out in the petition was libelous per se, examined and sustained.</p> <p>2. -: damages: evidence. In an action for damages resulting from the publication of a libelous article in a newspaper it was Held, Error for the trial court to admit proof of, and instruct the jury to consider, the wealth of the defendant, in estimating the damages which the plaintiff should recover; exemplary damages not being recoverable in this state.</p> <p>3. Construction of Written Instruments, when a Question for Jury. The general rule is, that it is the province of the court to construe written instruments and contracts entered into between the parties to the action; but where an instrument between one of the parties to the suit and a third party is collaterally introduced in evidence, the effect of which depends not merely on its construction and meaning, but also upon extrinsic facts and circumstances, the inferences to be drawn from it are inierenees of fact and not of law, and being open to explanation, must be submitted to the trial jury.</p>

Error .to the district court for Holt county. Tried below before Tiffany, J. on misconduct of jury, cited: Proffatt on Jury Trials, Sec. 388. Special damages must be pleaded. Maxwell’s P. & P., page 90, note. 1 Sutherland on Damages, 763. Adams v. Barry, 10 Gray, 361.

<p>Error to the district court for Furnas county. Tried below before Gaslin, J.</p> <p>cited : Boardman v. Halliday, 10 Paige, 232. Hinkel v. Stephens, 3 Pac. Rep,, 531. Cohn v. Beall, 61 Miss., 399. Stewart v. Otoe Co., 2 Neb., 177. School District v. Stough, 4 Neb., 357. Goldman v. Conway County, 10 Fed. Rep., 888. Baker v. Johnson County, 33 Iowa, 151. De Cordova v. Galves.-ton, 4 Tex., 470. Perry v. Parish of Vermillion, 21 La., -645. Justices v. Orr, 12 Ga., 137. Carroll v. Board of Police, 28 Miss., 38.</p> <p>cited: Brewer v. Otoe County, 1 Neb., 373. 1 Dillon on Municipal Corporations, sec. 112.</p>

<p>Judgment in County Court.' In an action in the county court on a promissory note, where the sum claimed was less than $200, judgment was rendered as follows: “ It is the opinion of the court that Anton Cabon is indebted to the plaintiff in the sum of $117.90, and attorney’s fee. It is therefore considered by me and adjudged that the plaintiff have and recover from the defendant, Anton Cabon, the sum of $117.90 and $3.46 attorney fees, together with the costs of this suit, $4.25. — J. B. Sharot, Co. Judge.” Held, That the judgment was not void, and that the district court erred in striking the transcript from the files.</p>

<p>1. Husband and Wife: power of attorney to convey property OF WIFE. One B., a married man, being considerably in debt, obtained a power of attorney from his wife as follows: “In my name, place, and stead, to sign my name to all conveyances of real estate to which I have any right of dower, as to real estate both in the city of Chicago, Illinois, and in the town of Loup City, Sherman county, Nebraska, -giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever required and necessary to be done in and about the premises, etc., * it being intended to convey hereby all my right, title, and interest in and to the above described real estate.” Afterwards certain real estate of the husband, in Loup City, was transferred to the wife and conveyed by the husband under the above power, the wife having notice that transfers of such property were being made by the husband in her name. Held, That, in view of the testimony, the words, “it being intended to convey hereby all my right, title, and interest in and to the above described real estate,” were tobe construed as authority to the husband to make such conveyances.</p> <p>2. -: - — —CONSTRUCTION OF POWER. Where the evident purpose of a power of attorney is to enable the attorney in fact to control and convey lands obtained after the execution of such power, it will be so construed.</p>

<p>1. Interest. In the absence of an agreement in relation to interest, the rate fixed by statute is seven per cent; and in an action on an executor’s bond to recover for money which the executor had. been ordered to pay, but failed, interest on the amount due is to be computed at seven per cent.</p> <p>2.--. Interest in this state is allowed as compensation for the withholding of or the use of money, and not as punitive damages for the wrongful withholding thereof.</p>

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

<p>■Contract: construction: time. On the 8th day of May the parties entered into a contract in writing, by which T. sold to L, a land contract for a quarter section of land held by T. from a land grant railroad company, for the price of 51,200, L. paying 5456 down in cash, and note of another party which was received as cash, and agreeing to pay on or before July 1 balance of $750, and the balance of full payment in one year after June 1, 1886, with interest at 10 per cent per annum. The writing contained the following clause, “And this contract is to be construed strictly as to payments.” No payment was made July 1. July 6, T. -notified L. by letter of the cancellation of the contract, and returned the note received in first payment. July 10, L. tendered to T. the amount of the July payment, with six dollars additional to cover interest, etc. In an action by L. against T. for specific performance of the contract, Held, That time was not of the essence of the contract, and that, under the facts and circumstances of the case as adduced at the trial, L. had not been guilty of gross negligence in making the July payment.</p>

<p>Partnership: payment by partner op individual indebtedness. In an action by copartners against a vendor for tbe proceeds of a bank check made by the partner, as manager of a firm of grain dealers, on their bank deposit, for house furniture for his separate use, Held, That it may be presumed, without allegations to the contrary, that the check was given on account of the partner’s interest from profits in the business of the firm.</p>

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

<p>1. Instructions: exceptions. A general exception of one sentence to a charge to the jury of ten paragraphs of instruction, made as memorandum at the close of the charge, 1 ‘ that the defendant excepts to each and every one of the above instructions separately,” Held, To be “ clearly insufficient to permit an examination of the instructions,” or to review the case on illegibly written affidavits of cumulative and newly discovered evidence not material to the issue. 22 Neb., 644.</p> <p>2. Trial: new trial. A new trial will not be granted on evidence superinduced by extrajudicial statements by the trial judge, not in accord with the record of the proceedings of the trial.</p>

<p>Error to the district court for Madison county. Tried below before Crawford, J.</p> <p>cited: Herman v. Edson, 9 Neb., 157. Foster v. Fierce County, 15 Neb., 48. Manzy v. Hardy, 13 Neb., 37. Mays v. Cincinnati, 1 Ohio St., 278. City of Marietta v. Slocomb, 6 Ohio St., 471. Phillips v. Jefferson County, 5 Kas., 412.</p> <p>cited: Boston Glass Co. v. Boston, 4 Mete., 481. Grim v. School Eist., 57 Penn. St., 434. Cobb v. Charter, 32 Conn., 361. Chandler v. Sanger, 114 Mass., 364. Cooley on Torts, 507. Harmony v. Brigham, 12 N. Y., 99. Chandler v. Sanger, 114 Mass., 364. First Nat. Bank v. Watkins, 21 Mich., 483.</p>

<p>1. Pleading: inconsistent counts: motion to strike. Where an amended petition is filed, the second and third counts of which are in conflict with the first, the proper motion is to strike out the inconsistent matter, of require the plaintiff to elect upon which cause of action he will proceed.</p> <p>2. -: CHARACTER OE ACTION DETERMINED BY PRAYER. In cases of doubt, where the pleader has stated a cause of action in equity, and also one at law, in such a manner as to leave it uncertain which one he intended to pursue, resort may be had to-the prayer for relief to determine the character of the action.</p> <p>3. -: MISJOINDER. Where a cause of action in equity is set forth in a petition — as to remove a cloud from the title of real estate — -and in the second count facts to show the plaintiff’s right to an action of ejectment are pleaded, both being for the same tract of land, a demurrer on the ground of misjoinder will not lie.</p> <p>4. Parties. In an action brought by the person holding the legal title to real estate, to remove a cloud therefrom and quiet the-title, all persons having an adverse interest may be made defendants.</p>

Original application for a writ of mandamus. An appeal is a valuable right, and being in furtherance of justice, the laws relating to it are to be liberally construed, and it devolves upon the justice, by the prompt performance of his duty, to aid in perfecting such appeal.

<p>Error to the district court for Red Willow county. Tried below before Cochran, J.</p>

<p>1. Sale: declarations oe vender: evidence. Declarations-of a seller of goods, made after the sale and delivery of such goods, and entirely disconnected with the transaction, are not • admissible in evidence against the purchaser.</p> <p>2. -: -. Declarations of a person engaged in the mer- • cantile business as to the amount of an inventory of his assets, such declaration being made to a stranger about two weeks be-■fore the sale of his stock, are not admissible in evidence against the purchaser, who had no notice of the same, to prove the value of the goods, for the purpose of showing that the trans- - action was fraudulent.</p>

<p>Error to the district court for Cedar county. Tried below before Crawford, J.</p> <p>cited: Sec. 238, Code. Waples on Attachment, 29. Ex parte Bank, 7 Hill, 177. , Steinbach v. Leese, 27 Cal., 299. Bangs v. McIntosh, 23 Barb., 601. People v. Sutherland, 81 N. Y., 7. Miller v, Brinherhoff, 4 Denio, 118.</p>

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

<p>1. Practice in Supreme Court. Alleged errors of law occurring at the trial, in the exclusion of certain evidence, examined and. overruled.</p> <p>2. Injuries to Stock: instructions to jury. In an action by G-. F. against A. H. F., for the negligent driving and management of a team of horses let for hire by G-. F. to A. H. F., by means of which the team was driven upon a barb wire fence and! injured, and where there was no evidence tending to connect G. F. in any manner with the existence of such fence, Held, Not error on the part of the trial court to refuse to give an instruction to the jury tending to make the existence of such fence across the road an excuse or justification to A. H. 1?. for the injury.</p> <p>3. Trial: discretion of court. Upon the trial of such cause, Held, To be within the legal discretion of the trial court to give or withhold from the jury questions for special findings of fact.</p>

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

<p>Insurance: condition op policy: action on policy: trial: EVIDENCE. In an action on a policy of insurance, where the policy- contained a clause in the following words, “and it is expressly understood and agreed by the parties hereto that application and survey No. 184,108, made by the assured, is hereby made a part of this policy and a warranty, on the part of the assured, and that this policy is issued upon the faith of the statements in said application and survey, as they thus appear, in writing therein only," and the application endorsed on the said policy contained the following: “8. Chimneys what kind? Galvanized iron cap. * * * 17. Granary, its size, age, condition,- and present cash value? * * * 18. Its direction and distance from house ? N. W. 100 feet. * * * 22. Is it incumbered in any way: if so, how much and when due? The entire incumbrance none.” Gn the trial there was evidence on the part of the defendant tending to prove: 1, That there was no galvanized iron cap on the chimney or roof; 2, That the granary . was only forty-six feet distant from the house; 3, That at the date of the application and insurance there was a valid and subsisting mortgage on the insured premises for $500. At the close of the evidence, the plaintiff moved the court to strike from the record, and exclude from the jury, all the testimony of the defendant with reference to the incumbrances upon the premises described in the policy of insurance, and all the testimony with reference to the galvanized iron cap upon the building, and all the testimony with reference to the distance of the house from the granary, which motion was sustained by the court. Held, Error, and a new trial granted.</p>

<p>Error to the district court'for Hamilton county. Tried below before Norval, J.</p> <p>cited: Rorer on Judicial Sales, Sec. 658. Piel v. Prayer, 30 Ind., 332. Atkins v. Atkins, 9 Neb., 191. Frazier v. Mills, 10 Id., 113. Harris v. Hardeman, 14 Howard (U. S.), 336. Borden v. Fiteh, 15 Johnson, 121 (8 Am. Dec., 225). Story on Agency, Sec. 210. McLaren v. Hall, 26 Iowa, 297. Williams v. Neth, 31 N. W. Rep., 630.</p> <p>cited: Warren v. Pick, 17 Neb., 242. Gregory v. Tingley, 18 Id., 320. Wyant v. Tnthill, 17 Id., 497. Neligh v. Keene, 16 Id., 407. O'Brien v. Gaslin, 20 Id., 347. McKeigan v. Hopkins, 14 Id., 361.</p>

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

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

<p>1. Petition: motion to strike. A motion to strike a petition from the files is proper only in cases where there is defect in matters of form required by the statute, such as a defective verification.</p> <p>2. -: verification. Objections to the verification of a petition being merely technical, must be made before objections are made to the matter in the petition itself, or the defect will be waived.</p> <p>3. Motions. A second motion based upon substantially the same grounds as the first cannot be filed except by leave of court, and should not be permitted except for sufficient cause.</p> <p>4. Affidavit. An affidavit to a petition, and also for writ of replevin, was signed, “ Frank Delone & Co., per P. B. Murphy, Ag’t,” the affidavit otherwise being in proper form. Held, That while the names of the principals should have been omitted, yet, as the affidavits were properly sworn to by the agent, they were sufficient.</p> <p>5. Evidence examined, and Held, To sustain the verdict.</p> <p>6. Replevin: verdict. "Where the word “possession” is omitted from the verdict in an action in replevin, but the special findings of the jury and the evidence show that the plaintiff is the owner of the property, and entitled to the possession thereof, the verdict will not be set aside because of the defect.</p>

<p>Original application for a writ of mandamus.</p> <p>cited: Stanton v. Madison County, 10 Neb., 306. Comp. Stats., Sec. 2, Art. 2, Ch. 80. Crim. Code, Sec. 534.</p>

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

Heard below before Tiffany, J. cited cases stated and commented upon in the opinion. cited: Comp. Stat., Ch. 52, Sees. 1, 14, and 17. Field’s Lawyers’ Briefs, 112. 1 Bishop Marriage and Divorce, Sec. 13. Stewart Marriage and Divorce, Sec. 28. Patterson v. Gains, 6 How., 550. Blanchard v. Lambert, 43 Iowa, 228.

<p>•1. Attachment: garnishment: case stated. E., J. &Co., and L., E. & Co., each having claims against one L. T., a retail merchant, who was in failing circumstances, severally sued, took out orders of attachment, which were served by the sheriff bv attaching the goods of L. T., worth about §6,000. The Blue Valley Bank held a chattel mortgage on the goods for about §2,500, upon which it replevied the goods from the sheriff. E., J. & Co. and L., E. & Co. then each took out process iu garnishment in their several actions, which were duly served on the said hank as garnishee. Afterwards, L. S.," who was also a ■ creditor of L. T., obtained five judgments against him. in the ■ county court, and caused executions to be issued thereon, and placed in the hands of J. C. F., a constable, who, by virtue there- ■ of, seized the balance of said goods, of the value of about §3,000, ■remaining in the possession of the garnishee, bank, after the satisfaction of its mortgage, and sold the same at public vendue, retaining the proceeds. The bank answered as garnishee in the several cases, setting up the facts as above. Before the ■causes of K., J. & Co. and L., E. & Co. v. L. T. were, or could ■be, brought on for trial and judgment in the district court, the balance of the goods had been seized and converted by J. O. F., as above stated, and the Blue Yalley Bank had ceased to exist. In an action in the nature of equity by B., J. & Co. and L., E. & Co., against all of the other parties here named, except L. T., for the purpose of enforcing their liens upon the proceeds of said goods in the hands of J. C. F., Held, That by the service of the several orders in garnishment on the said bank, the goods of L. T. in its possession, over and above sufficient thereof to satisfy its mortgage, were constructively placed in the custody of the law, and the plaintiffs in garnishment had an equitable lien thereon for the amounts of their respective claims.</p> <p>2. —-■: -. Whether J. C. F., constable, by virtue of the executions in his hand, obtained legal possession of said goods is not decided.</p> <p>3. -: -. But his possession of said goods, if legal, was subject to the rights and equitable liens of the plaintiffs in garnishment.</p> <p>4. -: -. For the reasons set out at length in the opinion, Held, That the plaintiffs in garnishment have not lost their respective rights to the proceeds of the sale of said goods by laches.</p>

<p>Appeal from the district court of Hamilton county. Tried below before Norval, J.</p> <p>cited: Jones on Mortgages, Secs. 1118, 1128, 1678. Barton v. Land Co., 27 Kan., 634. Parsons v. Moses, 16 Iowa, 440. Morgan v. Walbridge, 56 Vt., 405. Smoot v. Smoot, 12 Lea, 274. French v. Qrenet, 57 Tex., 273. Bright v. Boyd, 1 Story, 478. Putnam v. Ritchie, 6 Paige, 390. Renard v. Brown, 7 Neb., 449. MiUer v. Finn, 1 Neb., 254.</p> <p>cited : Wetmore v. Roberts, 10 How. Pr., 51. Miohles v. Dillaye, 17 New York, 80. Talbot v. Braddil, 1 Yern., 184. Poole v. Johnson, 17 N. W. Rep., 900, and cases cited.</p>

<p>1. The Evidence upon which the decree of the district court was rendered is examined, and found to sustain the decree.</p> <p>2. Contract: reformation.- rights of parties. Where a contract is reformed by a court of equity, the rights of the parties must be measured by the contract as reformed. Therefore where H. sold real estate to Y., the contract being that Y. should pay the taxes after the year in which the sale was made, but by mistake in writing the bond for a deed the scrivener omitted that part referring to the taxes, and upon Y. failing to pay the taxes, H. was compelled to do so, for the purpose of protecting his security for deferred payments, it was Held, That upon a reformation of the contract H. was entitled to a repayment of the taxes, with lawful interest.</p> <p>3. -: -: -: IMPROVEMENTS ON LAND. Where in such sale a part of the real estate included in the contract was certain tracts of land upon which H. held a lease from the state, and which contracts of lease, after assignment, were returned to him for a temporary purpose, he retaining at least a partial possession of the land, upon a reformation of the contract so as to make it include the leased land, it was Held, That he was entitled to compensation for necessary permanent improvements made upon the land, for his use, hut not entitled to such compensation for temporary and movable improvements, he being given the right to remove them.</p> <p>4. -: -: COSTS. Where a plaintiff brings his action to reform a contract, which is resisted by the defendant, and the defendant files a cross-petition, seeking the reformation of the contract in another particular, which is resisted by plaintiff, and both parties are successful in procuring the reformation asked, it was Held, That under the peculiar circumstances of the case the costs of the suit should be equally divided, and one-half taxed to each party.</p>

<p>Appeal from the district court of Lancaster county. Heard below before Hayward, J.</p> <p>cited : Perry on Trusts, Secs. 274-288, and cases cited. Wade Notice, Sec. 17. Wittes v. Chandler, 1 McCrary, 276. Williamson v. Berry, 8. How., 495.</p> <p>cited: Brane v. Gunter, 19 Ala., 731. Shepherd v. MoJEvers, 4 John. Ch., 136. Ch'uger v. Halliday, 11 Paige, 314. Wilson v. Towle, 36 N. H., 129. 1 Perry Trusts, 3d Ed., Sec. 268 and note 2. Id., Sec. 285-7. Singleton v. Scott, 11 Iowa, 589, 597. Gray v. Brignardello, 1 Wall., 627. Shriver v. Lynn, 2 How., 43. Rorer Judicial Sales, Sec. 56. Rogers v. Dill, 6 Hill, 415. In re Price, 67 N. Y., 233. In re Ellison, 5 Johns. Ch., 261.</p> <p>cited: Mills v. Paynter, 1 Neb., 444. Miller v. Finn, 1 Neb., 289. State v. Buffalo County, 6 Neb., 461. Jennings v. Simpson, 12 Neb., 565. McGavockv. Pollack,. 13 Neb., 537. Bryant v. Estabrook, 16 Neb., 220. Gould v. Loughran, 19 Neb., 392. McCormick v. Paddock, 20 Neb., 489. Wash. Real Prop., 3d Ed., 478 and notes. Jackson v. Delaney, 13 Johns., N. Y., 537. Freeman on Judgments, 151. Joyce v. McAvoy, 31 Cal., 274. Benson v. Oilley, 8 O. S., 604. Tyler Infancy and Coverture, 52, 172, 289 et seq.</p>

<p>Counties: relocation or county seat: returns or election. A special election was held in Gr. county for the purpose of voting upon the question of relocation of the county seat. At one of the precincts in the county sixty votes were cast, forty-seven of which were in favor of relocation and thirteen against. The returns of the election officers were duly certified, sealed, and delivered to one of the judges of the election, to be by him delivered to the county clerk. When delivered to the county clerk the returns showed evidences of having been opened and resealed. Upon being opened, it was found by proof submitted to the canvassing board that sixty-one names had been added to the poll list, the tally list removed and anew one substituted, showing one hundred and twenty-one votes cast, the official returns of the officers obliterated and new ones substituted, showing that one hundred and seventeen votes had been cast in favor of the relocation and four against. On proof of these facts by the election board of that precinct, the canvassing board required the election board to file correct returns, which was not done, and the canvassing board refused to canvass the illegal and forged return. Upon an application for mandamus to compel them to do so, it was Held, That the writ should be denied.</p>

<p>1. Verdict. Upon an examination of the testimony, the verdict of the jury upon questions of fact is sustained, as not being so clearly and manifestly against the weight of the evidence as to require a reversal by the supreme court.</p> <p>2. Warranty. Where a reaper and binder was purchased under a printed warranty to the effect that, if properly managed, it would cut one acre per hour or ten to twelve acres per day in a workmanlike manner, the purchaser being allowed to cut five acres on trial, and in case anything proved defective due notice should be given to the vendor’s agent and time allowed to send a person to put it in order, and that if it did not work, and the fault was in the machine, it would be taken back, or the defective parts replaced, or the money paid for it refunded, it was Held, That the instruction of the trial court to the jury, in substance, that if .there was a warranty and a breach thereof as alleged in the answer, the defendant had the right, within a reasonable time, to return the harvester and rescind the contract, was not error, it having been fully proven by both parties that notice was given of the alleged defects, and time allowed to plaintiff to put the machine in order.</p>

<p>1. Liquors: license : appeal. Where an application is made to the city council for a license to sell intoxicating liquors, to the issuance of which a remonstrance is filed, and upon a hearing a license is ordered to issue, it is the duty of the council, upon notice of appeal being given, to withhold the license until the expiration of a sufficient time within which an appeal may be taken to the district court by the remonstrants. Where a license is issued and the appeal is taken, it is the duty of the council to recall such license, until the appeal is decided by the district court, and in case of their refusal mandamus will issue to compel action.</p> <p>2, -: -: -. An appeal to the district court from the decision of the city council, under the provisions of Sec. 4, Chap. 50, Compiled Statutes of 1887, is in no sense a proceeding in error, but is an appeal requiring a decision upon the merits of the case.</p>

<p>Error to the district court for Eichardson county. Tried below before Appelget, J.</p> <p>on right of appeal, cited: Points v. Jacobin, 12 Kan., 50. Clendenning v. Crawford, 7 Neb., 475. On surety-ship, cited: Brandt, Sec. 226. Bunker v. Barron, 8 Atl. Eep., 253. Instruction No. ,3, erroneous. IPouak v. Graham, 6 N. E. Eep., 595. Warner v. Price, 3 Wend., 397. Instruction No. 4. Story Eq. Jur., Sec. 493. Instructions 7 and 11 asked for should have been given. Bussell v. Failor, 1 Ohio State, 327. Baogott v. Mullen, 32 Ind., 332.</p> <p>Veach, cited : Wilcox v. Baben, 38 N. W. Rep., 844. Brandt Surety-ship, Sec. 226. Oldham v. Broom, 28 Ohio State, 53. McNaughton v. Partridge, 11 Ohio, 232. McKee v. Hamilton, 33 Ohio State, 14.</p>

Heard below before Chapman, J. contended that the deeds showed upon their face that the transaction was a gift. 1 Devlin Deeds, Sec. 11. Such gift is irrevocable. Burt v. Jones, 8 N. W. Rep., 93. Dawson v. MeFaddin, 34 N. W. Rep., 338. KeUogg v. Adams, 8 N. W. Rep., 115. cited: 1 Story Eq. Jur., 292. Taylor v. Taylor, 8 How., 200. Boney v. Hollingsworth, 23 Ala., 698.

<p>1. Pleading: answer: burden of proof. Where the answer of certain sureties upon a bond to secure the fulfillment of a building contract contains a general denial, it devolves upon the plaintiffs to prove that labor and material furnished by them to complete the building were within the terms of the contract, and necessary to its fulfillment.</p> <p>2. Instructions set out in the opinion, Held, To be erroneous.</p>

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

<p>Error to the district court for Gage county. Tried below before Broady, J.</p> <p>•cited: Hollingsworth v. Flint, 101 U. S., 591. Johnston v. Jones, 1 Black (U. S.), 209. MoCool v. Smith, 1 Black {U. S.), 459. Hardy v. Johnson, 1 Wall. (U. S.), 371. Dawson v. Porter, 2 Ohio, 305. Axtell v. Worden, 7 Neb., 186. B. & M. Pt.B. Qo. v. Dobson, 17 Neb., 450. Sully v. Huehl, 30 Iowa, 278. Slack v. Wood, 9 Grattan, 40. Taliaferro’s Adm’r v. Bank, 23 Ala., 755. ' Orozier v. Cooper, 14 111., 141. Butler v. Vassault, 40-Cal., 74. Duncan v. Dyon, 3 Johns. Ch., 356. Richards v. Nuckolls, 19 Iowa, 555. . Carson v. Henderson, 8 Pac. Rep., 727.</p> <p>cited : Nolan v. Grant, 53 Iowa, 392. Hoskins v. Hattenback, 14 Iowa, 320. Ins. Co. v. Granger et al., 62 Iowa, 272. Spears v. Mr. Ayr, 66 Iowa, 721. Jones v. Singleton, 45 Cal., 92. Gas Right Co. v. Green et al., 21 la., 335. Deere & Co. v. McConnells, 15 Iowa, 273.</p>

<p>Divorce: power of court to set aside decree. Courts of general j urisdiction have power to set aside or vacate decrees of divorce after the term at which the decree was rendered, when obtained by fraud.</p>

<p>Appeal from the district court of Gage county. Heard below before Broady, J.</p> <p>cited: 2 Addison Contracts, 416 (8th Ed.).</p> <p>cited: Addison Contracts, Sec. 530 (Morgan’s Ed.). Loyd v. Collett, 4 Bro. ■C. C., 469. Colby v. Gadsen, 34 Beav., 416. Bispham’s Eq., Sec. 376.</p>

<p>1. Search "Warrant: replevin : injunction. Where a plaintiff, by means of a search warrant and an action of replevin, obtains possession of certain drafts of which he claims to be the owner, and applies the same to his own use, he cannot refuse to prosecute the action, nor can he enjoin the defendant from proceeding therein.</p> <p>2. Reference of Causes. A purely legal action cannot be referred except by consent of the parties, as in such case, neither party can be deprived of his right of trial by a jury.</p> <p>3. Bill of Peace. A bill of peace will lie only in cases where one claims or defends against many, or many claim or defend against one, except in certain cases, where the right has been satisfactorily established at law.</p>

<p>Appeal from the district court of Otoe county. Heard below before Hayward, J.</p> <p>cited: 'Mazier v. Johnson, 11 Neb., 404.</p>

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

<p>1. Chattel Mortgage. The statute requires a chattel mortgage, or “ a true copy thereof,” to be filed in the office of the county clerk, who “ shall endorse on such instrument, or copy, the time of receiving the same, and shall keep the same in his office for the inspection of all persons.” Held, That the party claiming under a mortgage so filed could not withdraw the instrument, from the office and proceed under the statute to foreclose.</p> <p>2. -: terms ÓE payment. The notes accompanying a. mortgage are evidence of the debt and the times of payment,, and where certain notes stating' definitely the amounts and times of payment -were duly signed by tbe maker, and a chattel mortgage on certain property to secure the same party in blank, but to be filled up in the ordinary form, was also signed, Held, That a provision in the mortgage inserted without the mortgagor’s knowledge or consent, changing the times of payment from that stated in the notes, was not binding on him.</p>

<p>Error to the district court for Richardson county Tried below before Appelget, J.</p> <p>cited: MaClay v. Worrall, 18 Neb., 44.</p> <p>cited: Monroe County v. Teller, 51 Iowa, 670. Speed-ling v. Worth Coimty, 68 Id., 152.</p>

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

<p>A Finding and Judgment of the district court -will not be reversed upon the ground that the judgment is not sustained by sufficient evidence, where the evidence is conflicting, if there is enough which, if believed by the trier of fact, would be sufficient to sustain the judgment were the same uncontradicted.</p>

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

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

<p>Error to the district court for Lancaster county. Tried . below before Hayward, J.</p> <p>cited : Secs. 137, 144, code.</p> <p>cited: Tessier v. Orowley, 16 Neb., 372, and cases cited. Ashton v. Jones, 14 Neb., 429.</p>

<p>1. Usury: bona eide purchaser: onus probandi. Where usury iu the original transaction for which a negotiable promissory note is given is proved, it devolves on the holder to show 'either that he is a bona fide purchaser before maturity without notice, or that he purchased from oue who had purchased said note in good faith before due and without notice.</p> <p>2. -: -: PAYMENTS APPLIED PRO TANTO. Every subsequent security given for a loan originally usurious is subject to the plea of usury, and when the proof of usury is sufficient the court will apply all payments of interest as a payment pro tanto of the principal.</p> <p>3. Chattel Mortgage: tender. An absolute tender of the .amount due upon a promissory’note secured by chattel mortgage — the tender being made the day after the debt is due, hut kept good. — will have the effect to divest the lien of the mortgage.</p>

<p>Error to the district court for Cass county. Tried' below before Chapman J.</p> <p>cited: McConnell v. Denham, 34 N. W. R., 298. Bigeloiv v. Andress, 31 111., 322. 2 Wade on Attachment, 3. Code, Sec. 267. Id., Secs. 213, 214, 269, 274.</p> <p>cited: Code, Secs. 95, 213, 215, 218. Mathews v~ Smith, 13 Neb., 178. Brashear v. West, 7 Peters, 608» Swett v. Brown, 5 Pick., 178. Faulkner v. Myers, 6 Neb., 418.</p>

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

<p>1. Bes Adjudicata: former jud&ment. Ordinarily the test as to whether a former judgment is a har to an action is to ascertain whether the same evidence will sustain hoth the present and the former action.</p> <p>% -: -. If different proof is required to sustain two actions, a judgment in one of them is no bar to the other.</p> <p>3. -: -: CONVERSION. A furnished certain lumber and other material to one B, on a contract that B should purchase the lumber for a certain price or might return the same by paying a stipulated sum for the use thereof. The lumber and other material was left in the possession of C; whereupon A brought an action against G upon the Contract, and failed in the action, judgment being rendered in favor of C. A thereupon brought an action against C for conversion of the lumber and other material. BeM,. That the former judgment was not a bar.</p>

<p>Error to the district court for Douglas county. Tried below before Hopewell, J.</p> <p>cited Bazzo v. Wallace, 16 Neb., 292.</p> <p>cited: Torbet v. Coffin, 6 Ohio, 33.' Wasson v. Heffner, 13 Ohio State, 573.</p>

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

<p>Error to the district court for Douglas county. Tried before Wakeley, J.</p> <p>cited: Clay v. Tyson, 19 Neb., 530.</p> <p>cited: Simpson v. Patten, 4 Johns., 422. Duffy v. Wemsch, 42 N. Y., 243. Fullam v. Adams, 47 Vt., 401.</p>

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

<p>1. Ejectment: statute of limitations. Plaintiff’s grantor was tlie owner of forty acres of wild and uncultivated land adjoining the cultivated and enclosed land of defendant. During, the ten years just prior to the commencement of this suit defendant leased the land of plaintiff’s grantor for the purpose of herding his stock thereon, the contract of lease having reference only to the uninclosed land. After plaintiff’s purchase he caused his land to be surveyed, and found his east line to be. about fifteen feet within the enclosure of defendant. In ejectment for the strip thus enclosed by defendant, it was Sold, That the leasing qf the unenclosed land would not prevent the running of the statute of limitations as to the strip in dispute,, it being enclosed as a part of defendant’s farm and occupied by him as owner.</p> <p>2. Adverse Possession. If one by mistake inclose the land of another and claim it as his own to certain fixed monuments or boundaries, his actual and uninterrupted possession for the statutory period will work a disseizin and his title will be-perfect.</p>

<p>Error to the district court for Lancaster county. Tried ■below before Field, J.</p> <p>cited : Baldwin <o. Merriam, 16 Neb., 47. Gregory v. Lincoln, 13 Neb., 357. Macher v. May, 4 Bibb, 43. South v. Thomas, 7 Monroe, 60.</p> <p>cited : McKesson v. Hawley, 22 Neb., 692. Clark v. Rotter, 32 Ohio State, 49. Waldo v. Rice, 14 Wis., 386. Clark v. Richards, 15 New Jersey Law, 347. Carrier v. Sale, 3 Allen, 328.</p>

<p>Error to the district court for Johnson county. Tried below before Broady, J. .</p> <p>cited: 1 Greenleaf Evidence, 512, note to Sec. 462. 1 Daniels Neg. Instr., Secs. 672, 673.' 2 Id., Secs. 1357, 1358. Seiner v. Brook, 3 Ohio State, 308. Soman v. Baboo, 2 Neb., 297. Dinsmore v. Stimbert, 12 Id., 438.</p> <p>cited: People v. Bostwiok, 43 Barb., 9. Sharp v. U. S., 4 Watts, 21. Chamberlain v. Brewer, 3 Bush, 561. Pepper v. State, 22 Ind., 399. Seeley v. People, 27 111., 173. Anderson v. Warne, 71 111.,, 20. Eapalje Witnesses, Sec. 266. Wharton Grim. Ev., 432. Comp. Stat., Code, Sec. 339.</p>

<p>Appeal from the district court of Douglas county. Heard below before Wakeley, J.</p> <p>cited: 1 Greenleaf Evidence (13th Ed.), Secs. 27, 205. Hoyt v. Gelston, 13 Johns., 141. McCann v. McLennan, 3 Neb., 25. Comp. Stat., Sec. 7, Chap. 7. Inloe v. Harvey, 11 Md., 519. Snowman v. Harford, 62 Me., 434. Wade on Notice, Sec. 338. Bank v. Hopkins, 2 Dana, 395. Freeman Judgments, Sec. 262. Ravis v. Ravis, 26 Cal., 38. Holland v. Griffith, ÍS Neb., 474.</p> <p>cited: Williamson v. Culpepper, 16 Ala., 211. Eiland v. Radford, 7 Ala., 726. Hall v. Savill, 3 G. Green., 37. Belton v. Avery, 2 Root, 279. Uhl v. May, 5 Neb., 160. ' Jones v. Harvester Co., 8 Id., 451. Whitehorn v. Cranz, 20 Id., 398. Lamont v. Cheshire, 65 N. Y., 42. Everts v. Agnes, 4 Wis., 354. Qrimstone v. Carter, 3 Paige Clr., 436.</p>

<p>■County Court: amending docket entries. In a term case a county court may, upon the motion of a party to an action, upon due notice to the adverse party, amend a docket entry to conform to the facts, the practice in that regard being assimilated to that of the district court.</p>

<p>1. Estoppel. One M. borrowed $2,000 of one E. C., and executed anote therefor, with F. as security. To secure F., M. and wife executed a mortgage upon a lot possessed by them in the city of O. When the note became due an action was brought against M. and F., and judgment recovered for $2,286, being principal and interest thereon, and an execution was duly issued and levied upon the aforesaid lot owned by M. At the sale F. caused the lot to be purchased in the name of one Y., to whom he was indebted, F. paying the purchase price. F. notified Y. of the purchase, but made no mention of his mortgage, nor made any claim to any interest in the lot. Held,, That as against Y. he was estopped to claim under the mortgage.</p> <p>'2. -. A party who knowingly, though it may be done passively, permits another to purchase land and expend money thereon, under the supposition that he is the owner, and without such party making known his own claim, will not be permitted afterwards to exercise his legal rights against the purchaser.</p>

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

<p>Error to the district court for Douglas county. Tried below before Wakeley J.</p> <p>cited: Herman Estoppel, Sec. 228. Allen v. Saunders, 6 Neb., 436. Buck v. Devereaux, 9 Neb., 110. 2 Sutherland Damages, 475. Huntington v. JR. JR. Co., 7 Am. Law Reg., 143.</p> <p>cited: James v. Allen County, 44 Ohio State, 226.</p>

<p>Administration of Estates. B was duly appointed administrator of the estate of A, deceased; C became B’s sole surety upon the administrator’s bond; B was removed from his administratorship upon the complaint of C, upon the charge of squandering the estate, and C was appointed as his successor. C, upon rendering his account as administrator de bonis non of the estate of A, was charged with the penalty of B’s bond. C afterwards died intestate, and D was appointed administratrix of his estate. E was appointed second administrator de bonis non of the estate of A. E, as such administrator, filed his claim against the estate of C for the full amount of the penalty of the administrator’s bond given by B and C, which was disallowed, and from which he appealed to the district court, where the judgment of the county court was affirmed. Upon error to the supreme court the judgment of the district court was affirmed, and it was held that the liability of the estate of C to the second administrator de bonis non of the estate of A could be fixed only upon the settlement of C’s accounts as first administrator de bonis non; and after tbe allowance of all just credits bis estate would be liable for the balance found due.</p>

<p>1. Criminal Law: depositions in criminal cases. Where depositions of certain witnesses on behalf of the defendant in a criminal case are taken by a commission appointed by a judge of the district court, such judge has the power under Sec. 460 of the criminal code to prescribe the manner of taking such depositions, the usual mode being by interrogatories and cross-interrogatories, but this will not prevent the attorney of either or both parties Irom airpearing and further examining or cross-examining the witnesses.</p> <p>2.--: misconduct of prosecuting attorney. A prosecuting officer has no right to go to witnesses of a party accused of crime and endeavor to dissuade them from appearing and testifying in the case; nor-will his assumption that such witnesses are unreliable, and may testify falsely, justify him in such conduct. The question of the credibility of the witnesses is one for the jury, and not for the prosecuting officer.</p> <p>3.--: information: witnesses. The names of witnesses-upon which the state relies to prove the charge _against one accused of crime should be endorsed on the information at as early a day as practicable alter the discovery of such witnesses, and in all cases before the day set for the trial of the case.</p> <p>4. Trial: verdict: consideration of case by jury. Where a bailiff remains in a room with a jury during the time such jury are considering their verdict, it is sufficient to vitiate the verdict. The jury should have opportunity for private and confidential discussion. They should be permitted to comment with freedom upon the motives and conduct of parties and witnesses, and without restraint to express their views, which perhaps they could not publicly express without making enemies. The presence of an officer, therefore, for any considerable portion of the time, is an intrusion on this privacy, from which an injury to the accused will be presumed.</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 Hopewell, J.</p>

<p>1. Res Adjudicata. A previous ruling by the appellate court upon a point, distinctly made, may be only authority in other cases, to be followed or affirmed, or to be modified or overruled according to its intrinsic merits, but in the case in which it is made it is more than authority; it is a final adjudication, from the consequences of which the court cannot depart, nor the parties relieve themselves. Phelan v. San Francisco, 20 Cal., 39, quoted in Wells’ Res Adjudicata and Stare Decisis, Sec. 613. Hiatt v. Brooks, 17 Neb., 33. O’Donahue v. Hendrix, Id., 287. Leighton v. Stuart, 19 Id., 546. Nelson v. Bevins, Id., 715. Lane v. Starlcey, 20 Id., 586. Mynning v. Detroit, 35 N. W. R. (Mich.), 811.</p> <p>2. Railroads: right op way: evidence. In a trial where the defense consists of proceedings under the provisions of the statute for the condemnation of certain real estate to the use of a railroad company, evidence was offered tending to prove that said real estate was necessary to said company for the purpose of its business, which evidence was excluded. Evidence tending to prove the condemnation of the real estate by the railroad company was offered and received. It having been held in a former opinion of this court in the same case, that said condemnation proceedings as proved were ineffectual, on account of defects in the notices and other material matters of procedure, without considering and before arriving at the point as to whether the real estate in question was necessary to the railroad company or not, Held, That the fact of said real estate being necessary to the said company, as affecting its power to condemn, is ancillary to that of actual legal condemnation, and that actual legal condemnation not being proved, the exclusion of the evidence under consideration was not reversible error.</p>

<p>Error to the district court for Otoe county. Tried, below before Chapman-, J.</p> <p>cited: Glennyv. Langdon, 89 U. S., 20. Trimble v. Woodhead, 102 Id., 647. Moyer v. Dewey, 103 Id., 301.</p> <p>cited: MeCormioh v. Raymond, 13 Neb., 307. Bmithv. Kinney, 6 Neb., 454.</p>

<p>1. New Trial: evidence. Wherethe evidence taken on the hearing of a petition for a new trial, in an action for personal injury, tends to show that the injury was committed in a somewhat different manner from that testified to by some of the witnesses on the trial, but does not negative the commission of the injury, it is insufficient to justify the vacating of the judgment.</p> <p>2. -: -. The question is not whether a jury might be induced to give a different verdict; but whether the legitimate effect of the new evidence would be to require a different verdict.</p> <p>3. —:--: bill op exceptions. Where a new trial is sought upon a petition filed after the term at which the judgment was rendered, the evidence on the trial as well as the newly discovered evidence must be set out in a bill of exceptions.</p> <p>4.--. Petition, Eeld, Not to state a case for relief.</p>

<p>1. Husband and Wife: deed or wife. Where a wife executes a deed of her real estate, leaving the name of the grantee, the amount of consideration, and the date blank, and delivers such deed to her husband for the purpose of enabling him to sell and convey said real estate, such deed duly filled up in the hands of a bona fide grantee, who purchased the land from the husband and paid the consideration therefor, will be sustained.</p> <p>2. -: -. Where a wife executes a deed in blank as to the name of the grantee, and in other respects, and delivers such deed to her husband to sell and convey her real estate therein described, and the husband thereafter sells said real estate and fills the blanks in said deed and delivers said deed to the grantee, and the wife knowingly uses a part or all of the consideration received therefor in her business, she will thereby ratify the sale and conveyance.</p>

<p>Dismissal of Action. In the district court, where a motion is filed to dismiss an action for want of prosecution, it is the duty of the moving party to serve notice of such motion upon the adverse party. If the action is dismissed for want of prosecution without notice, the appellant may have the cause re-instated upon such terms as to payment of costs as may be deemed just and right, if the application is made in a reasonable time.</p>

<p>Forcible Entry and Detention. Where a party in possession of real estate has an interest in the land itself, which only a court of common law jurisdiction can determine, an action of forcible entry and detainer will not lie against him.</p>

<p>1. Trial: motion for new trial. In a motion for a new trial a general assignment that the court erred in giving each of the instructions given to the jury is too general, and such an assignment will not be considered in the supreme court.</p> <p>2. Action: intervenor : verdict. An action was brought by the plaintiff as the assignee of a claim against a railroad company for rebates and overcharges, and which the railroad company admitted to be due. A third party, by intervention, claimed the fund, and asked judgment therefor. Upon the trial, the plaintiff proved the contract between his assignor and the railroad company, the shipment, and the amount due thereon. There Was nothing in the evidence (in which was no conflict) to show that the intervenor was entitled to the money. The verdict of the jury, however, was in his favor. It was Held, That the verdict could not stand.</p> <p>3. -: -: estoppel. No question as to the legality of the contract between the shipper and the railroad company was presented by the answer of the intervenor, hut upon the contrary he sought to obtain the benefit of the contract, and obtained a judgment in his favor. It was Held, That he could not afterwards be heard to insist upon the illegality of the contract.</p>

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

<p>1. Bastardy: Evidence held to sustain the verdict that the-plaintiff in error was the putative father of a bastard child.</p> <p>2. -: LIMITATION OE ACTION. The fact that a prosecution-under the bastardy act does not take place for more than four years after the birth of the bastard child, will not bar a recovery where there is a clear preponderance of the evidence showing that the party accused is the putative father of the child,, and that the mother, at the first opportunity after its birth, stated to him and to others that he was the father, and asked him to provide for its support, and continued to so insist to the-time the proceedings were instituted — the parties in the meantime being on amicable terms.</p> <p>3.--: expenses. Where there is considerable delay in instituting the proceedings, expenses accruing prior to that time-will not be allowed.</p>

<p>Error to the district court for Merrick county. Tried below before Post, J.</p> <p>cited: Sec. 198, Code. Bank v. Fonda, 32 N. "W. R., 664. Livingston v. Coe, 4 Neb., .381. Dorringtonv. Minnick, 15 Id., 397. 4 Wait’s Action and Defenses, 472, and cases cited.</p> <p>•cited: Llandy v. Prong, 4 Neb., 60. Nouss v. Wright, 14 Id., 457. Maxwell’s Pi. and Pr., 492. 1 Wade Attachments, 22. Elliott v. Jackson, 3 Wis., 571.</p>

<p>Appropriations by Legislature. Under the act approved March 31,1887, to provide for “ selling of all unsold lots and lands belonging to the state of Nebraska lying and being in the city of Lincoln, and to provide for the appropriation of funds arising from said sale,” a sale of the lots and lands mentioned was had, the amount of the sale being $78,878, $30,995.33 of which was cash in hand; $23,928.17 in notes due in one year; and $23,946.52 in notes due in two years. Held, That by the terms of the act there was an absolute appropriation of $78,878, upon which warrants could be drawn to carry into effect the purpose of the act.</p>

<p>Commissions of Beal Estate Agent. Upon the facts proved, Held, That the plaintiíf, a real estate agent, had failed to procure a purchaser for the defendant’s property, and therefore was not entitled to a commission.</p>

<p>1. Limitation of Actions: fraud. An action for relief on the ground of fraud may be commenced at any time within four years after a discovery of the facts constituting the fraud, or of facts sufficient to put a person of ordinary intelligence and prudence on an inquiry, which, if pursued, would lead to such discovery. Parker v. Kuhn, 21 Neb., 413.</p> <p>2. --: -: creditor’s bill. In a creditor’s suit brought by H. & Co. against J. W. D. and E. D., his wife, for relief, on the ground that certain lands conveyed to E. D. in 1873 were bought and paid for out of the money of J. W. D., or of a partnership of which he was a member, and the title taken in the name of E. D., for the purpose of defrauding the plaintiffs, the said J. W. D. and the said partnership being insolvent and indebted to the plaintiffs, the only evidence of any fact or occurrence within four years next before the bringing of the suit was,, that in 1883 plaintiff’s counsel told him that he thought he had a good way of making the claim plaintiff had against J. W. D.,. and associates. EM, That the cause of action was barred by the statute of limitations.</p>

<p>-1. Judgments: VACATING. Courts of general jurisdiction have the authority to change, correct, revise, and vacate their own judgments at any time during the term, at which they were rendered, and before rights have become vested thereunder.</p> <p>-.2. Trial: motion foe new teial: decision: affidavits. While the law requires a motion for a new trial to be filed within three days after the rendition of a verdict, and during the term at which the verdict was returned, yet it is not necessary that the motion should be decided upon within three days, nor is there anything in the law of this state which would prohibit the filing of affidavits in support of such motion at any time before its submission to the court.</p> <p>3. Criminal Law: trial: misconduct on jury. Where, in a prosecution under section fourteen of the criminal code, for an assault with intent to commit rape, the person upon whom the assault is alleged to have been made having been shown to be a female child of tender years, and after the cause was submitted to the jury, one of the jurors procured a copy of the Compiled Statutes, and took the same into the jury room, and read therefrom section twelve of the criminal code, and especially the latter clause thereof, which refers to the carnal knowledge or abuse of a female child under the age of fifteen years, and also read from chapter forty-six of the criminal code, which provides for motions for new trials, it was Held, That such misconduct was sufficient to vitiate the verdict.</p> <p>4. --: setting aside verdict. Affidavits of jurors may be received, for the purpose of avoiding a verdict, to show any matter occurring during the trial, or in the jury room, which does not essentially inhere in the verdict itself, as where a verdict for damages is ascertained by aggregation and average without subsequent ratification, or where it is made to depend upon chance, or where a part of the jury become so intoxicated as to destroy their ability to deliberate and exercise their reason and judgment, or where witnesses are surreptitiously called before the jury and permitted to detail the principal facts, or any other matter concerning which all or any considerable portion of the jury may testify with equal knowledge, by having seen or heard the misconduct which is alleged to have occurred.</p>

<p>Attachment; affidavit: partnership. A and B were in-partnership in buying and shipping grain from Fairmont and Geneva, in Fillmore county, to the city of Chicago, the residence of A. A sent his agent to Fairmont, who, finding that B was improperly using the money furnished by A, for the purpose of carrying on the partnership business, employed an attorney, and in B’s absence ordered the local banks to pay no more of B’s-checks until a settlement of the partnership affairs was made. B retained defendant as his attorney, to protect his interest in the settlement, and in any litigation which might follow. A basis of settlement was agreed upon subject to the approval of A, and which was to be submitted to him by B and A’s agent, in Chicago. Prior to B’s departure for Chicago, he received a check for $500, the property of the firm, and delivered it to defendant, his attorney, who converted it into money. There was evidence from which the district court could find that A’s agent, while in Fairmont, agreed with defendant that A would pay the fees due defendant for his services, in case the settlement was-made. The settlement was approved by A, and the partnership continued. In an action by A against defendant, for the $500, an attachment was procured, upon the ground that the debt was fraudulently contracted by defendant, which attachment was, on motion of defendant, discharged, upon the ground that the proofs failed to sustain the allegations of the affidavit. Held, No error.</p>

<p>1. Usury. Where a party effected a loan for another of $4,000 for five years at eight per cent, and took notes as a bonus for $350, without interest, due in less than one year from the date of the loan, Held, That interest for five years would not be added to the notes taken for a bonus in order to taint the transaction with usury.</p> <p>2. Pleading. A party charging fraud and misrepresentation must plead the facts, and a mere allegation of fraud or misrepresentation is not sufficient.</p>

<p>Error to the district court for Platte county. Heard below before Marshall J.</p> <p>cited: Cleveland, etc., R. R. Co. v. Long, 24 Ohio State, 133. Chicago v. Sullivan, 17 N. E. Rep., 460. Maxwell PI. and Pr., 447. Hilliard New Trials, Secs. 40, 40a, Ch. 25.</p> <p>cited: Tingley v. Dolby, 13 Neb., 371. Woodward v. Leavitt, 107 Mass., 453.</p>

<p>1. Oaths and Affirmations. A notary public who is clerk of an attorney may administer an oath to verity a pleading prepared by such attorney.</p> <p>•2. Pleading: .'petition: numbering causes of action. Where several causes of action are set forth in a petition without being separately stated and numbered, it is error for the court to overrule a motion of the defendant to require the plaintiff to separately state and number his causes of action. This is a statutory right which, unless the defendant has waived, he may insist upon.</p> <p>.3. -: ACTION TO RECOVER PENALTY UNDER U. S. LAW. When an action is brought to recover a penalty under sections 5197 and 5198 of the Revised Statutes of the United States, upon the ground of taking, receiving, reserving, or charging a rate of interest greater than is allowed by law, it is necessary to allege in the petition that the act was “knowingly done.”</p> <p>4. -: -: jurisdiction. An action to recover a penalty under section 5198 may be brought in any court in the city or county in which such bank is located having jurisdiction in similar cases.</p>

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

<p>1. Justice of Peace: verdict. Where a justice of the peace, in a cause before him tried to a jury, recited in his docket that the jury rendered a verdict in favor of the plaintiff for a specified sum, instead of entering the verdict itself in his docket, Held, Error without prejudice.</p> <p>2. -: finding. Where a judgment is based on a verdict of a jury it is unnecessary for the justice to make findings of fact.</p>

<p>1. Injuries to Person: negligence: question for jury. Where, in an action for damages resulting from a fall into an excavation in a sidewalk, it was shown by the evidence that the plaintiff knew of the excavation across the sidewalk, and that on a dark night he attempted to pass that way, and remembering the defect attempted to pass around it, but by reason of misjudging the distance, and the excavation being unguarded, he fell into it and was injured. It was Held, That the question of his contributory negligence was for the jury to decide under all the circumstances as shown by the evidence.</p> <p>2. Instructions. The modification of instructions set out in the opinion at length, Held, No error.</p> <p>3. Remittitur. Verdict of the jury, Held, To he excessive, and judgment reversed, unless defendant in error enter a remittitur of $2,000 within thirty days.</p>

<p>Error to the district court for Douglas county. Tried below before Groff, J.</p> <p>cited: York’s Case, 9 Met., 91. "WhartonCrim. Ev., Sec. 738. MoElvoy v. State, 9 Neb., 164. 1 Kentucky Law Journal, 162. State v.- McDonell, 32 Vt., 538. Carr v. State, 23 Neb., 749</p> <p>cited: Sehleneker v. State, 9 Neb., 248. Simmer-man v. State, 14 Id., 568. State v. Townsend, 66 Iowa, 741. Preuit v. People, 5 Neb., 384. DeArman v. State, 71 Ala., 351.'</p>

<p>1. Administration of Estates: action by administratrix: jurisdiction. L. died, in Kansas, from injuries there, for which it is claimed that if death had not ensued the Mo. Pac. R. R. Co., the party inflicting them, would have been liable to-an action for damages. The statute of that state provides that an action may be brought against the party by the personal representative of the deceased. The widow, appointed under the laws of Nebraska administratrix of L., brought in the district court of the state a suit against the railway company. Held, That the suit can be maintained, the right of action not being limited by the statute to a personal representative of the deceased appointed in Kansas, and amenable to her jurisdiction. See DennieJc v. Railroad Co., 103 U. S. R., 11.</p> <p>2. -. The distribution of money, if recovered by the widow from the railroad company, might be enforced by the courts of this state in the manner prescribed by the statute of Kansas. Id.</p> <p>3. -: judgment. The judgment of the county court of W. county, Neb., granting letters of administration to the widow, the sole assets of the estate consisting of the claim against the railroad company, Held, Coram, jndiee, and upheld.</p> <p>4. Negligence. The construction and operating of a railroad without blocking its frogs and switches is not negligence per se of which a court will take judicial action upon proof of the fact of such construction and operating, and failure to block the frogs and switches, only.</p> <p>6. -: DAMAGES: evidence. In an action by an administratrix against a railroad company for damages for the death of her husband, where it was alleged in the petition that in constructing its line of railroad the defendant negligently failed to block its switches and frogs, by means of which the deceased, a brakeman employed by defendant, in coupling cars stepped his foot between the rails of the switch, and became fastened there, by reason of which he was run over by the cars and killed, Held, That the plaintiif could not recover without the evidence of practical men that unprotected frogs and switches are inherently unsafe and dangerous when prudently and carefully worked and managed, and that blocking them materially lessens the danger of their use and management, and that such was generally recognized by those engaged in the construction and operating of railroads in the country or vicinity by the adoption and use of such improvement, or of evidence equivalent.</p>