Volume 25 — Nebraska Reports

<p>Township Organization: election of supervisors. The-city of A. was included within the town of A., in the county of.' H., which was under township organization. An election for the selection of a supervisor was held in the township, whichi included the city of A., and at which the electors of the whole township voted. It was Held, That the relator was not electees as a supervisor from the city of A., another candidate, who resided outside the city boundaries, within the town, having received a greater number of votes at the election so held.</p>

<p>Counties: erection of new counties : practice : costs. The defendants constituted the hoard of county commissioners of Cheyenne county. Petitions were filed in the proper offices • of the said county, praying the submission of the question of its subdivision-and the erection of new counties. Among them was the petition of the relator and others, for the submission of the question of the erection of Potter county. The board refused to act upon his petition, and he applied to the supreme court for a writ of mandamus to compel action. Upon the submission of an interlocutory question, it was held by the court that it was their duty to act. Soon after that decision the board acted upon the petition, finding that it was not signed by the requisite number of electors to entitle them to its submission. - The other propositions being submitted, the county was subdivided, without regard to the propositions contained in the petition named. It was Held, That the object of the writs of mandamus being only to compel action, relators were not entitled to the' writ, but that they were entitled to recover all costs made on account of the proceeding for mandamus prior to the action of the county board.</p>

<p>Error to the district court for Antelope county. Tried below before Powers, J.</p> <p>cited: Sec. 1011, Code, Comp. Stat., 1887.</p> <p>cited: Slaven v. Iiellman, 24 Neb., 646.</p>

<p>Exceptions taken to the district court for Saline county, Morris, J., presiding. Filed under the provisions of Sees. 515, 517, Criminal Code.</p> <p>cited: Anschicks v. The State, 6 Tex. Ct. App., 524. Lawrence v. Commonwealth, 30 Gratt., 845. Joiner v. The State, 62 Ga., 560. State v. Tillman, 30 La. Ann., 1249. State v. Erickson, 45 Wis., 86. Fizell v. The State, 25 Wis., 364. People v. McDonald, 9 Mich., 150. Crosswell v. The People, 13 Mich., 429. Commonwealth v. Sugland, 4 Gray, 7. Gosha v. The State, 56 Ga., 36. -</p> <p>cited: Blackburn v. State, 22 Ohio State, 102. O’Meara v. The State, 17 Ohio State, 515. Oliver v. The State, 4 American Crim. Law, 523. Pegina v. Day, Eng. Law and P., 722.</p>

Tried below before Powers, J. The court below erred in refusing to quash the panel of the petit jury. Ensign v. Harney, 15 Neb., 330. The-application for a change of venue should have been allowed. Sec. 61, Code of Civil Procedure. Richmond v. State, 16 Neb., 389. Simmerman v. State, 16 Neb., 618.

<p>1. Railroads: damages for right of way: evidence. In an action to recover damages for real estate condemed for right of way for a railway company, a witness who testified that he resided near the land condemned, and was acquainted with the value of the real estate in that vicinity at the time of the condemnation, is prima facie a competent witness to prove the-amount of damages sustained hy the land owner.</p> <p>2.--: ---:--. While the date of filing a petition to-condemn real estate for right of way of a railroad is deemed the time when the appropriation takes place for the purpose of assessing damages, yet proof is not limited to that particular day;: and where the petition was filed in June, and a witness testified to the value in the following August, the evidence was held, admissible.</p>

<p>1. Appeal: JURISDICTION. Where a cause is tried before a justice of the peace, and on appeal in the district court without objection to the jurisdiction of the court, and the want of jurisdiction does not appear on the face of the papers, the objection will not be considered in the supreme court.</p> <p>2. Vendor and Vendee: taxes. A vendor who sells real estate after the first day of April of any year, in the absence of a contract to the contrary, is, under the statute, liable for the taxes on such real estate for that year.</p> <p>3. Taxes: lien. Taxes become a lien upon real estate on and after the first day of April in each year, and a party who executes a conveyance with a covenant against incumbrances, in effect assumes the payment of taxes on the land sold for that year, and parol evidence of a contract made with the vendee before the making of the deed to pay such taxes, is not admissible to vary the terms of the covenant.</p> <p>4. Evidence: secondary evidence. Proof of the contents of certain letters is not admissible without showing a loss or destruction of such letters.</p>

<p>Error to the district court for Douglas county. Tried below before Neville, J.</p> <p>cited: Railroad Company v. Commissioners, 98 U. S., 545. Rogers v. The Inhabitants of Greenbush, 58 Me., 390' (4 Am. Repts., 292). Meeks v. McClure, 49 Cal., 623 (22 Am. Repts., 520).</p> <p>cited: Helphrey v. Redick, 21 Neb., 84. 49 Cal., 623. Dimmett v. Appleton, 20 Neb., 210.</p>

<p>Costs: sheriff’s fees: ITEMIZATION. In the taxation of costs, there was allowed to the defendant, upon the dissolution of the-attachment, an item of sheriff’s fees of $190 for “ care, preservation, and custody of attached property.” The charge was not itemized, except as above, nor was it contained in the sheriff’s, return, but appears to have been taken from the fee book of the district court. The order of the district court, denying the defendant’s motion to retax the said item of fees, Held, Error, and the court instructed to require the sheriff to itemize the particulars of said charge, and make a showing of the facts upon which, it is founded.</p>

<p>Appeal from the district court of Custer county. Tried below before Hamer, J.</p> <p>cited: Cool v. Roche, Hall ■& Ray, 20 Neb., 660. Hait v. Remide, 20 N. H., 285. Whitney v. Heywood, 6 Cush., 82. Barrows v. Turner, 50 Me., 127. Hide v. Williams, 17 Barb., 523.. Kanoga v. Taylor, 7 Ohio State, 134. Smith v. McLeon, 24 Iowa, 322. Bank of 77. S. v. Boris, 2 Hill, N. Y., 451. Bank <o. Cushman, 121 Mass., 490. Streeter v. Poor, 4 Kan., 412. Sencerbox v. McGrade, 6 Minn., 334 and 484.</p> <p>■cited: Jones on Chattel Mortgages, Sec. 129.</p>

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

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

<p>1. Sale: fraud. Every sale made by a vendor of goods and chattels in his possession or under his control, unless the same be accompanied by an immediate delivery, and be followed by actual and continued change of possession of the thing sold, is presumed to be fraudulent, as against subsequent purchasers in-good faith, unless it shall be made to appear on the part of the person claiming under such sale that the same was made in. good faith and without intent to defraud such purchasers; therefore, under our statute of frauds, the delivery of possession of property sold is not necessary to protect the purchaser as against subsequent purchasers, provided the purchase is shown to have-been made in good faith.</p> <p>2. -: - — . By our statute the retention of possession by the seller is, at most, only prima facie evidence of fraud, which may be rebutted by proof. Robinson v. XJhl, 6 Neb., 328.</p> <p>3. -: -: question of FACT. In all cases arising under our statute the question of fraud in a sale is one of fact, and not of law. Id.</p> <p>4. Instructions to Jury. If one or more of the paragraphs in the charge of the court to the jury misstates the law upon a material point, such error will not be cured by other paragraphs,, which state the law correctly. Wasson v. Palmer, 13 Neb., 376»</p>

<p>'Insurance Companies: taxation. The provisions of chapter 06 of the Session Laws of 1887, amending section 38 of an act to provide a system of revenue, being chapter 77 of the Compiled Statutes of 1885, was not intended, to exempt insurance companies from the payment of a license tax on their occupation or business within the limits of cities of the second class and villages, when imposed by ordinance. The purpose of the exemption in the latter clause of the section being only to relieve such companies from taxes, fees, or licenses under the laws of the state which might be imposed by general law, under the provisions of section one of article 9 of the constitution.</p>

<p>Mechanics’ Lien: pleading: petition: work and labor. A petition, on account for labor performed in the construction of a building under a certain contract, which alleges the execution of a contract, the performance of the labor thereunder by the plaintiff, the acceptance of the work hy defendant, and the amount due thereon, with the usual prayer for judgment, Held, To state a cause of action, when assailed by demurrer.</p>

<p>Error to the district court for Douglas county. Tried below before Groee, J.</p> <p>cited: Main v. Cooper, 25 N. Y., 181. Cassidy v. Clark, 62 Ga., 412. Davidson v. Phelps, 9 .Yerg., 93. Young v. Freeman, 15 N. J. Law, 30. Jordan v. Walker, 52 Iowa, 647. Houzik v. Delaglise, 65 Wis., 494. Grohousky v. Long, 20 Neb., 365. Datoson v. Datoson, 17 Id., 671. Pettit v. Blaak, 13 Id., 154. C., B. & Q. B. R. <o. Skupa, 16 Id., 346.</p> <p>cited: Baker v. Wiswell, 17 Neb., 58. Poland v. O’Connor, 1 Id., 50. Barton v. Patríelo, 20 Id., 654. Smith v. Kaiser, 17 Id., 186. Maxwell Justice Practice, 250.</p>

<p>Error to the district court for Douglas county. Tried below before Wakeley, J.</p> <p>cited: Voorhees »_ Bank, 10 Pet., 474. Bowler v. Huston, 32 Am. Rep., 679. Sanders v. Hall, 15 Pac. R., 197. Freeman Judgments, Sec. 281. Cou/nty of Buena Vista v. 72. 72., 49 Iowa, 657.. Gregory v. Bovier, 19 Pac. R., 232.</p> <p>cited: Ileiser v. New York, 9 N. E. Rep., 866. Orandall v. Bacon, 20. Wis., 639. Gould v. Loughran, 19 Neb., 392.</p>

<p>1. Interest. “Any rate of interest -which may be agreed upon, not exceeding ten dollars per year upon $100, shall be valid upon - any loan or forbearance of money, goods or things in action; •which rate of interest so agreed upon may be taken yearly, or for a shorter period, or-in advance, if so expressly agreed.” Sec. 1, Chap. 44 of Compiled Statutes of 1887.</p> <p>•2.--. This section forbids the allowance of interest in excess of ten per cent upon any loan or forbearance of money, and where the interest provided for in a promissory note is the maximum rate allowed by law, and is represented by coupons providing that interest shall be allowed thereon after maturity at the maximum rate, no interest will be allowed on such coupons.</p> <p>■3. -. The former opinion in this case, 23 Nebraska, 536, modified.</p>

<p>Error to the district court for Adams county. Tried below before Gaslin, J.</p> <p>cited: Code, Sec. 951. Wells’Jurisdiction, Sec. 68. Henchelv. Wheeler, 51 ’Wis., 363. Nimmickv. Mathieson, 32 Wis., 324. Barker v. Baxter, 1 Pinney, Wis., 407. Brondberg v. Babbott, 14 Neb., 517. ,</p> <p>cited: Code, Secs. 1034, 1035, 1037, 1038, 1039.</p>

<p>1. Limitation of Actions: foreign judgment. A judgment of a superior court of a state of the Union, other than this state, sued on in this state, Held, A foreign judgment, within the intent and meaning of section 10 of the code of civil procedure, and that an action thereon must he commenced within five years after the cause of action shall have accrued.</p> <p>2. -: evidence. The evidence introduced under the answer-setting up the har of the statute of limitations examined, and Held, To sustain the verdict.</p> <p>3. Instructions given and refused, considered, and Held, Properly given and refused.</p> <p>4. Trial: special verdict. In an action on a foreign judgment. the court submitted to the j ury certain questions of fact for their special findings thereon. Held, No error.</p>

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

<p>1. Negotiable Instruments: protest: notice. Where the endorser receives his mail at the place where the note endorsed is payable, a notice of non-payment, duly placed in the post-'office and actually received by him-on, the day following the last day of grace, is sufficient to charge him as endorser.</p> <p>2. -:: pleading. Petition, Held, To state a cause of action against the maker and endorser of a promissory note.</p>

<p>1. Principal and Agent. A special agent who acts within his apparent power will bind his principal by his contracts, even if he has received private instructions which limit his special authority; but if he exceed his apparent power his principal will not be bound.</p> <p>2. -: evidence. Upon the facts proved, Held, That the agent did not have absolute power to make a sale, and the same was subject to approval by his principal.</p> <p>3. Trial: evidence: usage. Where both the plaintiff and defendant called witnesses to establish usage, neither can assign error in the admission of such testimony.</p>

<p>• Error to the district court for Adams county. Tried below before Gaslin, J.</p> <p>cited: Rlattsmouth v. Mitchell, 20 Neb., 232. Tuck v. Ripon, 52 Wis., 200. Oliver v. Oity, 69 Mo., 83. Weave v. Fielding, 110 Mass., 336. Fifth instruction: Baltimore v. Marriott, 9 Md., 174. Nebraska Oity v. Rathbone, 20 Neb., 292. Negligence: Railroad v. Goodman, 15 Wall., 401. Lincoln v. Walker, 18 Neb., 247.</p> <p>cited: Rlattsmouth v. Mitchell, 20 Neb., 228.</p>

Tried below before Norris, J. on filing substituted petition and forcing defendant below to trial, cited :■ Code, Sec. 137. Opinions of witnesses: F., F. & M. V. R. R. v. 'Lamb, 11 Neb., 595. B. & M. R. R. v. Beebe, 14 Neb., 471. B. & M. R. R. v. Sehluntz, 14 Neb., 423. O. & A. R. R. v. U. & K W. R. R., 67 111., 145. G. & R. R. R. v. Ball, 5 Ohio State, 573. Admission of certificate of entry of title: Code, See. 411. Comp. Stat., Secs. 13, 40, Ch. 73.

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

<p>Husband and Wife: separate property of wife. In an action of replevin instituted by a married woman for the possession of personal property levied upon by the sheriff under execution against her husband, it was shown by uncontradicted ■evidence that the property in dispute was purchased by and for her, with means furnished by herself, and through the aid of her father, as surety at the bank. It was Held, That the property ■so purchased would not be subject to seizure, upon final process ¡against the husband, even though in the management and use ■of the property the husband was permitted to have charge of it, in connection with others employed for that purpose, and even though the property was listed for taxation in his name.</p>

<p>1. Constitutional Law: eailroads: foreign coepoea. XION: CONSOLIDATION. "While section 8 of article XI. of the •constitution of this state provides that no railroad corporation, •organized under the laws of another state, or of the United States, and doing business in this state, shall be entitled to exercise the right of eminent domain, or have power to acquire the right of way or real estate for depot or other uses,-until it •shall have become a bo_dy corporate, pursuant to, and in accordance with, the laws.of this state, it does not prohibit existing railroad companies, one of which is a domestic corporation, from "becoming a body corporate by consolidation, instead of by the formation of a new corporation, providing such consolidation is made pursuant to the laws of this state permitting the same, and by which it becomes “ a body corporate pursuant to, and in accordance with, the laws of this state.”</p> <p>'2: -: -: -: CASE STATED. The Chicago, Burlington & Quincy Railroad Company was a corporation organized under the laws of the state of Illinois and of the state of Iowa, and operating a railroad from the city of Chicago, in Illinois, to a point on the Missouri river, in Iowa, opposite the city of Plattsmouth, in this state, and the Burlington & Missouri River Railroad Company in Nebraska was a corporation organized under, and by virtue of, the laws of this state, operating a railroad from the city of Plattsmouth to Kearney. These two corporations consolidated their stock and franchises into one joint stock company, to be known as the Chicago, Burlington, & Quincy Railroad Company under the provisions of section 114 of chapter 16 of the Compiled Statutes of 1887. It was Held, That by virtue of such consolidation, and the compliance with the laws of this state, that the corporation created thereby became a body corporate, pursuant to, and in accordance with, the-laws of this state, and was, therefore, not a foreign corporation.</p>

<p>Corporations. The defendant, Held, To he a domestic corporation, and not a corporation organized under the laws of another state,, or of the United States.</p>

<p>Corporations.' The defendant, Held, To he a domestic corporation and not a corporation organized under the laws of another state, or of the United States.</p>

<p>1. Homestead. The title to a homestead, exempt under the laws of this state to a family consisting of husband and wife, with or without other members, cannot be divested, or incumbered, by deed, unless such deed be executed and acknowledged by both husband and wife. Auttman & Taylor v. Jenkins, 19 Neb., 209. Bo Harden v. Kriz, 13 Id., 121. Larson v. Butts, 22 Id., 370.</p> <p>2. Estcppel. Evidence relied on to estop a wife, the second head of a family, to deny the validity of the title of a purchaser of her exempt homestead by conveyances which she did not execute and acknowledge, examined, and Held, Insufficient to establish an estoppel.</p>

<p>1. Criminal Law: TRIAL. On a trial for felony,’the jury, after, having been sent ont to consider of their verdict, returned into court, announced that they had not been able to agree, and requested to have the testimony of the principal witness for the prosecution read to them from the reporter’s notes, which being ■agreed to in open court by the attorneys on either side, was accordingly done. Held, That while the practice would not be encouraged, a conviction would not be reversed for that cause.</p> <p>S, The Evidence examined, and Held, To sustain the verdict.</p> <p>3. Instructions to Jury. The instructions complained of considered, and Held, That applying the same to the evidence, they contain no reversible error.</p>

<p>Error to the district court for Holt county. Tried below, before Post, J. '</p> <p>cited: Romberg v. Hughes, 18 Neb., 579.</p>

<p>Error to the district court for Red Willow county. Tried below before Cochran, J.</p> <p>cited: Code, Sec. 41. Estee’s Pleadings, third edition, Yol. 3, Secs. 4507-4519.</p> <p>cited: Fritz v. GrosnieJclaus, 20 Neb., 431.</p>

<p>Parties: intervention. A party who claims to he the owner of goods which are in controversy in an action of replevin may intervene in the case, upon filing a petition before judgment alleging his ownership, etc.</p>

<p>Error to the district court for Madison county. Tried below before Norris, J.</p> <p>cited : Story on Agency, Sec. 37. McMillan v. Mackenzie, 2 Green (Iowa), 268-271.</p>

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

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

<p>1. Railroads: eminent domain : evidence. Where persons are shown to be familiar with the value of a particular piece of land, across which a railroad has been built, they may be permitted as witnesses to testify as to the value of such tract immediately before the location of the road, and to the value thereof immediately afterwards.</p> <p>2. -:---:--. In such ease, it is competent for the witness, in estimating the value of such real estate after the location of the road, to take into consideration all elements caused by the construction of the road which would tend to diminish the value of the property.</p>

<p>Error to the district court for Douglas county. Tried below before Hopewell, J.</p> <p>cited: Commonwealth p. Jackson, 132 Mass., 17. Cowan v. State, 22 Neb., 525.</p> <p>cited: Smith v. State, 17 Neb., 362. People v. Gray, 66 California, 271. Mayer v. People, 80 N. Y., 364. Copperman v. State, 56 N. Y., 592. Commonwealth v. Eastman, 1 Cush., 189. Commonwealth v. Jeffries, 7 Allen, 548. People v. Gray, 66 Cal., 271. Trogclon v. Commomoealth, 31 Grattan, 872. Bielschofsky v. People, 3 Hun, 40. Wood v. United States, 16 Peters, 341.</p>

<p>Courts: records of district court. Section 27 of chapter 1:) of the Compiled Statutes of 1887, makes it the duty of the clerk of the district court to keep a record of the proceedings of the court, under the direction of the judge of such court. The supreme court has no jurisdiction or authority to exercise the functions of the district court in the matter of the preparation of the records of said court. Its jurisdiction, except in certain cases, being appellate and not original.</p>

<p>Error to the district court for Richardson county. Tried below before Broady, J.</p> <p>cited: Morrissey v. Kinsey, 16 Neb., 17. Rose v. O’Linn, 10 Neb., .364. MaUory v. GiUett, 21 N. Y., 412. . Clapp v. Webb, 52 Wis., 641. Langdon v. Richardson, 12 N. W. Rep., 622. Cole v. Hutchinson, 26 N. W. Rep., 319. Stud,ley v. Barth, 19 N. W. Rep., 568.</p> <p>cited: Grant v. Wolf, 34 Minn., 32. Sanders v. Classon, 13 Minn., 379. Maddox v. Pierce, 74 Ga., 838. Larson v. Jensen, 53 Mich., 427.</p>

<p>Error to the district court for Dakota county. Tried below before Crawford, J.</p> <p>cited : McCabe v. Board of Commissioners, 46 Ind., 382. Williams v. Holmes, 2 "Wis., 97. Commissioners of Wabaunsee County v. Muhlenbaaher, 18 Kan., 132. Denning v. Corwin et al., 11 Wend., 647. Oallatian v. Cunningham, 8 Cow., 370. Robinson v. Mathwich, 5 Neb., 254-255. Mossmanv. Forrest, 27 Ind., 235.</p> <p>cited.: Keyes & . Crawford v. Tate, 19 Iowa, 123. Robinson v. Mathwich, 5 Neb., 252. State, ex rel.. Sims, v. Otoe County, 6 Neb., 130. Dood-y v. Vaughn, 7 Neb., 28. State v. Berry, 12 Iowa, 58. Willis v. Spoule, 13 Kas., 268. Beebe v. Seheidt, 13 O. St.,. 416.</p>

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

<p>Error to the district court for Antelope county. Tried below before Norris, J.</p> <p>cited: Roop v. Herron, 15 Neb., 80. Rosenbaum, & Co. v. Hayden & Co., 22 Neb., 748. Morrissey t>. Schindler, 18 Neb., 672. Smith v. Or egg, 9 Neb., 216. Thompson v. Stetson, 15 Neb., 112.</p> <p>cited: Maxwell’s Pleading and Practice, 4th edition, 28. Skinner v. Stoeks, 4 B. and Aid., 437. Bliss’ Code Pleading, 24. Medbury v. Watson, 6 Mete., 246. Bowen v. Billings, 13 Neb., 443. Smith v. Jones, 18 Neb., 483. Parsons on Partnership, 348 and 349, and notes.</p>

<p>Guaranty. Oue M., desiring to purchase a hill of goods, procured' and sent to one I. the following guarantee:</p> <p>“Oxford, Neb., July 18,1885.</p> <p> “T.F. Indermill, St. Jo, Mo.: </p> <p>“ Dear Sir — Please ship goods ordered hy T. E. McLain; we-will guarantee payment of first order upon receipt of goods.</p> <p>“Yours, etc.,</p> <p>“Oxford Bank,</p> <p> 11 Per 31.” </p> <p>Relying on this guaranty, I. furnished goods to M., of the alleged value of §142, on which M. paid §60. In an action hy I. against the guarantor to recover the balance, Held, That the . guarantor was liable.</p>

<p>Appeal from the district court of Adams county. Tried below before Gaslin, J.</p> <p>cited: Wheatley v. Tuft, 4 Kas., 245. Bennett v. Sticlcney, 17 Vt., 531. Taylor v. Coryell, 12 S. & R., 243. Midvaney v. Lovejoy, 15 Pac. Rep., 181.</p> <p>cited: Gardner v. Hall, 29 111., 277. Spangel v. Dellinger, 42 Cal., 148. Arnott v. Webb, 1 Dillon, 362. Hall v. Banning, 1 Otto, 160. Gilman v. Gilman, 126 Mass., 26. Freeman on Judgments, Sec. 98. Websteir v. Hunter, 50 Iowa, 215. Ferguson v. Crawford,, 70 N. Y., 253.</p>

<p>Error to the district court for Johnson county. Tried below before Chapman, J.</p> <p>cited: Mills v. Miller, 4 Neb., 443-444. Hutton v. Maines, 28 N. W. Rep., 9. Cummings v. Baars, 31 N. W. Rep., 449.- Guensey v. American Ins. Co., 17 Minn., 104. Neoins v. Dunlap, 33 N. Y., 678. Miner v. Hess, 47 111., 170, and cases cited.</p> <p>cited: McKmster v. Hitchcoclc, 19 Neb., 100. Brown v. Herr, 21 Neb., 113-128. Kerr on Fraud and Mistake, pp. 54-55.</p>

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

<p>Appeal from the district court of Cuming county 1 Heard below before Crawford, J.</p> <p>cited: Washburn v. Wash— burn, 9 Cal., 475. Wood v. Wood, 5 Ired., 674. Cornish v. Cornish, 23 N. J. Eq., 208. Carter v. Carter, 62 111.,, 439. Pierce v. Pierce, 33 Iowa, 238.</p>

<p>Partnership: CREDITOR’S bill. In an action in the nature of a creditor’s bill, where the defendants in their answer admit the recovery of the judgment and the return of an execution thereon unsatisfied, but allege that such return is untrue, and that the firm at the time of the levy of the execution was possessed of sufficient property on which to levy to satisfy the same, but the court below found that the return conformed to-the facts, Held, That the evidence sustained the judgment.</p>

<p>Original application for mandamus.</p> <p>cited: Dill, on Mun. Corp., 2d edition, 2d vol., Sec. 666. State, ex rel. ITahn, v. Hardy, 7 Neb., 379. Wadleigh v. Gilman, 12 Maine, 403.</p>

<p>Error to the district court for Harlan county. Tried below before Gaslin, J.</p> <p>•cited : Dobson v. Dobson, 7 Neb., 296. Rep. R. R. Co. v. McPherson, 12 Neb., 480. Mellhaney v. Holland, 111 Penn. State, 634. Horn v. Miller, 20 Neb., 98. Haas v. Reese, 18 Kas., 450. Hall v. Howard, 39 Mich., 219.</p> <p>cited: Johnson v. State, 42 O. S., 207. Hoagland v. Schnorr, 17 O. S., ■30. Herig v. Nougaret, 7 O. S., 480. Hanes v. R. R. Co., 40 O. S., 95. Chap. 23,'sections 234, 236, 237, p. 367, Comp. St. Neb., 1887.</p>

<p>Error to the district court for Kearney county. Tried below before Gaslin, J.</p> <p>cited: Busch v. Hagenrick, 10 Neb., 415. Clarke v. O. & S. W. IL B., 5 Neb., 319. Cook v. Smith, 54 Iowa, 637. Sherman v. Kismiller, 17 S. & R. (Penn.), 45. Graham v. Graham's Exrs., 10 Casey (Penn.), 475. Wood Master and Servant, page 126.</p>

<p>Error to the district court for Holt county. Tried below before Kinkaid, J.</p> <p>cited Holmes v. State, 17 Neb., 74. Estee’s Pleadings, 3d Edition, Sec. 202-3070. Cutler v. Wright (8 Smith), 22 N. Y., 472. Hall v. Bartlett, 9 Barb., 297. Freeman v. Frank, 10 Abb. Pr., 370. Humphry v. Taggart, 38 111., 228. Boom v. St. Paul Foundry & Manfg. Co., 22 N. W. R., 538.</p> <p>cited: Code, Sec. 196. dark v. Norton et al., 6 Gilfillan (Minn.) Reports, 412. Pettygrove v. Hoyt, 11 Maine, 66. Chambers v. lFerfe?’S, 7 Cal., 390. Mitchum v. Stanton, 49 Cal., 304. •Collins v. Hough, 26 Mo., 150. Balsley v. Hoffman, 13 Penn. St., 606.</p>

<p>Cities of Second Class : bonds bor public buildings. Section 52 of article 2 of chapter 14, Compiled Statutes of 1887, confers upon cities of the second class, having more than five thousand and less than twenty-five thousand inhabitants, the right to provide ior the erection and government of all useful and necessary buildings for the use of the city. Under this authority, It was Held (under the rule stated in State v. JBabcoelc, 22 Neb., 614), That the city of K., being within the class named, had the right to issue its bonds for the purpose of erecting necessary buildings Jor the use of the city, such power being incident to and necessary for the carrying out of the authority expressly granted.</p>

<p>Error to the district court for Frontier county. Tried below before Cochran, J.</p> <p>cited: Crowell'v. Galloway, 3 Neb., 219. Orippen v. Church, 17 Neb., 304. Smith v. Borden, 22 Neb., 487. Ciarme v. Nelson, 15 Neb., 440.</p>

<p>1. Replevin: pleading: evidence. In an action of replevin a general denial puts in issue every material allegation of the petition. And under it the defendant may give evidence of any special matter which amounts to a defense fo the plaintiff’s. - cause of action.</p> <p>2. Attachment: replevin: liens. Where a sheriff levies an order of attachment in his possession upon peisoual property, other orders may be levied upon the same property, subject to-the prior levy, so long as he retains possession of and dominion-over the property so levied upon. And, if the lfevy is not wrongful, a lien will be created to the extent of the amount 'represented by the attachments in his hands. But if after such levy the property is taken from his possession in an action of replevin he receives other orders of attachment, no lien will be-created upon the property thereby.</p> <p>3. -: -: JUDGMENT. In such case, in an action of replevin, where the finding and decision of the district court is in. favor of the sheriff, the judgment should be for the amount due upon the orders of .attachment in the hands of the sheriff, and under which a levy had been made prior to the execution of the: order of replevin.</p>

<p>Appeal from the district court of Lancaster county. Heard below before Chapman, J.</p> <p>cited: Parker v. Fhslow, 102 111., 272. Dunham, v. Griswold, 100 N. Y., 224. Young v. French, 35 Wis., 111. Bank v. Geary, 5 Peters, 114. Boyce v. Berger, 11 Neb., 399. Scott v. Scott, 2 Central Rep., 800. Skinner v. Reynick, 10 Neb., 323. Forgy v. Merryman, 14 Neb., 513.</p> <p>cited : Nill v. Comparet, 16 Ind., 107. Burton v. Burton, 28 Ind., 342. Sage v. Harpending, 49 Barb., 174. Brueggeman v. Jurgensen, 24 Mo., 87. Shields v. Trammell, 19 Ark., 51. Jefferies v. Jefferies, 117 Mass., 184. Martindale’s Law of Conveyancing, Sec. 29, p. 29. Bayliss v. Williams, 6 Cold., Tenn., 440.</p>

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

<p>Error to the district court for Merrick county. Tried; below before Post, J.</p> <p>cited : Warrem v. Martin, 38 N. ~W. Rep., 849. Livingston v. Roosevelt, 4 Johnson, 251. 1 Lindley on Partnership, 325. Sackett’s Instructions to Juries, 334. Addison on Contracts, Vol. 3. Ottawa Gas L. Co. v. Graham, 28 Ilk, 73.</p> <p>cited: MeKinster v. Plitehcoclc, 19 Neb., 104. Kennedy v. Goodman, 14 Id., 588. Keller v. Kellei-, 18 Id., 368. Sackett’s Instructions to Juries, 50-1 — 2. Powell v. P. R. R., 65 Mo., 658. 3 Greenleaf Ev., Sec. 197. Freeland v. Heron, 7 Crunch, 147. Iiayes v. Kelley, 116 Mass., 300. Stvaubher v. Mohler, 80 111., 21. Bailey v. Bensley, 87 Id., 556. Hcidenheimer v. Ellis, 3 S. W. R., 666. Cobb v. Arundell, '26 Wis., 553.</p>

cited: Giles v. Little, 104 U. S., 293. Tt is the universal rule in construction of wills, to ascertain the intention of the testator from the words of tire-will, and if they be ambiguous, then and not till then, from the words of the will and the circumstances of the testator at the time of his death. Millett v. Ford, 109 Ind., 159, and cases cited. Taubenlmn v. Lunz (111.), Vol. IT N. E. R., 456, and cases cited. Allen’s Fixers, v. Alleny 18 How., 385.

<p>Error to the district court for Saline county. Tried below before Broady, J.</p> <p>cited: MoKeighan v. Hopkins,' 19 Neb., 33. Code, Sec. 13. Angelí on Limitatious, 6 Ed., ■ Sec. 72. Lamb v. Clark, 5 Pickering, 193. 1 Thompson on Negligence, 45. Wharton on Negligence, 2 Ed., Sec. 73. ’</p>

<p>County Clerk: fees: mandamus. Defendant was the duly elected and qualified county clerk of Franklin county. During his term of office an application was made to the supreme court for a peremptory writ of, mandamus, requiring him to Certify and report the collection of certain lees, which it is alleged that he has failed to report. To this relation he filed his answer, controverting, its principal allegations. Subsequent to that time he filed a supplemental answ;er, alleging that since the filing of his original answer his term of office liad expired. To this a general demurrer was interposed by the relator. It was Held, That the facts stated did not constitute a defense, aud the demurrer was sustained.</p>

<p>Original action in equity.</p> <p>cited: Wells on Jurisdiction, Sec. 73. Const., Sec. 2, Art. VI. Biggs v. Blue, 5 McLean, 148. Holmes v. Campbell, 12 Minn., 221. State v. 'Ledford, 6 Ired., 5. Mayor v. Pilhington, 2 Atk., 302. 3 Blaekstone Com., 392. Bateman v. Willoe, 1 Sell, and Lef., 201. 20 Cal., 114. Owens v. Panstead, 22 III, 168.</p> <p>cited: Attorney General v. Ins. Co., 2 Johns. Ch., 371. Storey Equity Jur., Sec. 893. West v. Mayor, 10 Paige Ch., 539. Sehceppe v. Com., 65 Penn. State, 51. Bradshaw v. State, 19 Neb., 644.</p>

<p>Error to the district court for Cass county. Tried below before Field, J.</p> <p>cited: Mills on Eminent Domain, Sec. 110. Williams v. B. R. Co., 50 Wis., 76. Houghton v. G., I). &■ M. R. Co., 47 Iowa, 370. Ry. Col v. Sehurmeir, 7 Wall., 272. Barney v. Keokuk, 94 U. S., 324. Kittle v. Shervin, 11 Neb., 65. Beane v. Todd, 22 Mo., 90. State v.. Powers, 4 Zabr., 406. Randle v. Williams, 18 Ark., 380. Bouden v. East Saginaw, 41 Mich., 18. Jenkins v. Jenkins, 63 Ind., 415. S. C., Am. Rep., 229. Matheivson v.. Thompson, 12 R. I., 288.</p> <p>cited: C., M. & St.-P. Ry. Co. v. City of tabula, 13 Am. & Eng. R. R. Cases, 443. Otoe County v. Mathews, 18-Neb., 466. B. & M. R. R. Co. v. Buffalo County, 14 Neb., 51. Union Paeifie R. R. Co. v. Hall et al., 91 U. S~ 343.</p>

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

<p>Error to the district court for Buffalo county. Tried below before Hamer, J.</p> <p>cited: Vibbard , m. Johnson, 19 Johns., 77. Armstrong v. Percy, 5 Wend., 536. Case v. Hall, 24 Wend., 102.</p> <p>cited: Parsons on Contracts, 3d Yol., 213, 7th Ed. Schouler on Personal Property, Yol. 2, 584. Bert v. Dewey, 40 N. Y., 283. Sutherland on Damages, 2d Yol., 418, and notes 465.</p>

<p>Appeal from the district court of Gage county. Heard below before Broady, J.</p> <p>cited : 1 Greenl. on Ev., Sees. 275, 281. Beers v. Beers, 22 Mich., 42. Morrisson v. Lovejoy, 6 Minn. (Gill.), 117. Allen v. Furbish, 4 Gray, 504. Skinner v. Hendrick, 1 Am. Dec., 43, and note. Erwin v. Saunders, 1 Cowcn, 249 (13 Am. Dee., 520). 1 Greenl. on Ev., Sec. 281, and eases cited in note c. Curtis v. Hokanson, 38 N. W. Rep., 695. Payne v. Ladue, 1 Hill, 116.</p> <p>cited: 1 Greenl. Ev.-,, Sec. 284. Morrissey v. Schindler,-18 Nebi, 673.Bernhard v. Brunner, 4 Bosw/, 528. Broadwell v. Broadwell, 1 Gilm., 599. Ayres v. Milroy, 53 Mo., 518. Pepper v. State, ex rel. Harvey, 22 Ind., 399. Jackson v. Sheldon, 22 Me., 569. Devlin on Deeds, Sec. 312. Morgan v. Hardy, 16 Neb., 427.</p>

<p>Error to the district court for Hitchcock county. Tried below before Cochran, J.</p> <p>cited : Code of Civil Procedure, Sec. 283. Central Law Journal, 25th Vol., 173. Rolfe v. Pilloud, 16 Neb., 24. Hilton v. Ross, 9 Neb., 406. Steele v. Dodd, 14 Neb., 496. Heffron v: State, 8 Fla., 73. Millerd v. Thorn, 56 N. Y., 402. Elwell v. Chamberlin, 31 N. Y., 614.</p>

<p>Appeal from the district court of Butler county. Heard below before Post, J.</p> <p>cited : Pachwood v. Gridley, 39 111., 388. liusselman v. MeElhenny, 23 Tnd., 4. 2 Daniel on Negotiable Instruments, Sec. 815. Wortendyke «. Meehan, 9 Neb., 229. Crandall v. Viekery, 45 Barbour, 3 56. Dresser v. Mo., eta., R. R. Co., 93 U. S., 92.</p> <p>cited: 'Crosby v. Grant, 36 N. H., 273. Dobbins v. Oberman, 17 Neb., 163. 1 Daniel Negotiable Instruments, Sec. 28.</p>

<p>Error to the district court for Lancaster county. Tried below before Chapman, J.</p> <p>Instructions: Potter v. C., B. I. & P. B. B. Co., 46 Iowa, 399. Dassler v. Wisley, 32 Mo., 498. McKinney v. Hartman, 4 Iowa, 154. Sandwich Manufacturing Co. v. Shiley, 15 Neb., 111. McPherson v. Wiswell, 19 Neb., 117. Acceptance: Wade on Notice, Sec. 391. Brandt on Suretyship and Guaranty, Sec. 158. Kellogg v. Stockton, 29 Pa. St., 460. Steadman v. Guthrie, 4 Met. (Ky.), 147. Lee v. Dick, 10 Peters, 482. Validity of bond: Ernst v. Cummings et al.} 55 Cal., 179. Magee v. East, 49 Cal., 141. Brandt on Suretyship and Guaranty, Sec. 9. Morrell v. Cowan, Law Rep., 6 Ch. Div., 166. Boyd v. Moyle, 2 C. B., 644. Usury: Edwards on Bills and Notes, Sec. 519.</p> <p>cited: Wilcox v. Draper, 12 Neb., 151. Brandt on Suretyship and Guaranty, Sec. 164. Smith & Crittenden v. Dann, 6 Hill, 543. Sed. 144, Code Civil Procedure.</p>

<p>Error to the district court for Johnson county. Tried below before Broady, J.</p> <p>cited: Boyer v. Barr, 8 Neb., 68. 2 Sutherland on 'Damages, 291 to 394, 302 to 306. St. Peter's Church v. Beach, 26 Conn., 355. Titus v. Corbins, 21 Kas., 722. BLoioett v. Scoggins, 48 Cal., 356. Falk v. Waterman, 49 Cal., 224. Fairbanks v. Witter, 18 Wis., 287. Kelley v. Rogers, 21 Minn., 147. Day v. Woodworth, 13 Howard, U. S., 363.</p> <p>cited: Craker v. Chicago & Northwestern R. R. Co. 36 Wis., 679. Hewlett v. Oruchley, 5 Taunt., 277. Pierce v. Oard, 23 Neb., 828.</p>

<p>¡Schools: division op districts. The duty imposed upon a county superintendent of public instruction by the first numbered clause of section 4 of chapter 79 of the Compiled Statutes, in relation to the division of school districts, the change of school district boundaries, and the formation of new districts, is a quasi-judicial duty; from his final decisions in regard to which, an appeal lies to the district court of the proper county, and which this court will not control by mandamus.</p>

<p>Error to the district court for Holt county. Tried below before Tiffany, J.</p> <p>cited: Jones on Chattel Mortgages, Sec. 129. Smith ■v. Waggoner, 50 Wis., 155. Richardson v. Copeland, 6 •Gray, 536. Washburn Real Prop., Vbl. 1, 3. Ottumwa Woolen Mill Co. v. Hawley, 44 Iowa, 57. Adams v. Beadle, Wl Iowa, 439. Sowden v. Craig, 26 Iowa, 156. Richardson v. Copeland, 6 Gray, 536. Bostal v. McCad>don, 35 Iowa, 318. Teaff v. Hewitt, 1 O. St., 511. Jones •on Chattel Mortgages, Sec. 132. Wade on Notice, 2 Ed., •Sec. 273.</p> <p>■cited: Jones on Chattel Mortgages, Sec. 129. Ford v. Cobb, 20 N. Y., 344. Myrick v. Bill (Dak.), 17 N. W. Rep., 268. Corcoran v. Webster (Wis.), 6 N. W. R., 513. Raymond v. Morrison, 13 N. W. R., 332. Wightman v. Spofford, 8 N. W. R., 680.</p>

<p>Appeal from the district court of Otoe county. Heard below before Pound, J.</p> <p>cited : Smith v. White, 5 Neb., 405. Richardson v. Pratt, 20 Id., 196. Comp. Stat., 1881, Sec. 3, p. 488.</p> <p>cited: Hibbeler v. Gutheart, 12 Neb., 531. Ewing v. Baldwin, 24 Kan., 88. State v. Graham, 21 Neb., 329.</p>

<p>Error to the'district court for Douglas county. Tried below before Groff, J.</p> <p>cited : Mitchell v. Haraourt, 62 Iowa, 349. Votaw v. Diehl, Id., 676.</p> <p>cited: Lipscomb v. Lyon, 19 Neb., 522.</p>

<p>Error to the district court for Kearney county. Tried below before Gaslin, J.</p> <p>cited: Smith v. Silvis, 8 Neb., 168. Leighton v. Stuart, 10 Neb., 224. Huckabee v. Nelson, 54 Ala., 14. -Lenoir v. Moore, 61 Miss., 400.</p> <p>citedt McCormick v. Stevenson, 13 Neb., 70. 6 Wait’s Actions . and Defenses, 140.</p>

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

<p>1. Principal and Agent: sale by agent : payment r evidence. Plaintiff brought an action against defendant for • the purchase price of a wagon, which it alleged it had sold, to defendant. The defense pleaded by the answer was, that defendant had purchased the wagon from plaintiff’s agent nob knowing of his agency, but believing the wagon belonged to the vendor ; that he had paid therefor, with the exception of twenty-five dollars, for which he offered to let judgment be rendered in favor of plaintiff. It was shown that the agent was deceased. On the trial the court permitted defendant when upon the witness stand to state the contract of purchase from the deceased, plaintiff at the time ' objecting. Held, No error, and not a violation of the provisions of section 329 of the civil code ; plaintiff not being in any sense the representative of a deceased person in the suit.</p> <p>2. -: TRIAL : EVIDENCE. Upon the introduction of plaints iff’s evidence in chief, it produced evidence tending to show . that its agent, who was deceased, conducted his business as an agency, and not in his own name. This evidence was met by defendant with testimony which tended to show otherwise, and that to all appearances the deceased had conducted the business as his own. On rebuttal, plaintiff offered additional testimony tending to support his theory of the case in that particular, which, upon objection being made, upon the ground that the testimony offered was not proper as evidence in rebuttal, was excluded by the court, Held, No error.</p>

<p>Error to the district court for Adams county. Tried below before Gasltn, J.</p> <p>cited: Thompson <o. The People, 4 Neb., 528.</p> <p>cited: Bex v. Gilbert, 1 Moody Crown Cases, 185. Corn-, ■v. Wilde, 5 Gray (Mass.), 83. Ainsworth v. State, 11 Tex. Ct. of App., 339. Beg. v. Slowly & Humphrey, Í2 Cox C. CL, 269. Wharton Crim. Law, Sec. 947 (9th Ed.)</p>

<p>Error to the district court for Adams county. Tried below, before .Morris, J. , ,</p> <p>cited: Daniels on Neg. Inst., Vol. 1, 528, Secs. 667, 669, 697. Bouvier’s-Daw Dictionary, defining “endorsement,” note 6. Brandt, on Suretyship and Guaranty, Secs. 79, 84, 168, 169. Wait’s Act. and Def., Vol. 7, 364, Sec. 1. Green t>. Dodge, 2 Ohio Rep., 431 to 440, and notes. Newton Wagon Co. v. Diers, 10 Neb., 289, and cases there cited.</p> <p>cited: Hanee v. Miller, 21 111., 636. Burnham v. Qatlentine, 11 Ind., '295. Heard v. Dubuque County Bank, 8 Neb., 10.</p>

<p>Chattel Mortgage: fictitious name : sale of property by mortgagor under another name. A purchased certain personal property from B on time, and for the purpose of securing the purchase price executed a chattel mortgage on the property purchased. The purchase was made and the chattel mortgage executed under an assumed and fictitious name. The parties to the transaction being unacquainted, the vendor supposed the name given was the true name of the purchaser. The purchaser stated that his residence was in Webster county, which was correct, and the mortgage was duly filed in the proper office in that county. Subsequent to the filing of the mortgage A sold the property to C, under his true name, after C had examined the records for chattel mortgages executed by A, and finding npne. In an action of replevin by B against C for the possession of the mortgaged property, It was Held, That B should recover judgment.</p>

<p>3. Appeal: practice. A judgment was rendered against defendant in the county court. Within ten days thereafter he filed an undertaking for appeal. Subsequently, but more than thirty days after the rendition of the judgment, he filed his ■transcript in the district court, whereupon defendant, in error filed his motion for a judgment in his favor, similar to that entered by the county court, without filing an additional transcript. The motion was sustained and judgment entered accordingly. Held, No error.</p> <p>‘2. Constitutional Law. Chapter 97 of the Session Laws of 1887, being, “ An act to amend section 1011 of the code of civil procedure, and to repeal said original section,” Held, To be constitutional, in so far as it was amendatory of the section referred to, and to that extent, at least, valid.</p> <p>3.--: amendment of statutes. Where a statute contains invalid or unconstitutional provisions, if the valid and invalid are capable of separation, only the latter are to be disregarded. Board of Supervisors v. Stanley, 105 U. S., S. Q. Rep., 305.</p>

<p>1. Building Contract: bond : mechanic’s lien. Where the contractor for the erection of a building gave a bond with sureties to “faithfully perform all the covenants and agreement contained in the building contract,” etc-, and the building contract provided that he was “ to furnish all the material, such as lumber, hardware, brick, lime, sand, paints, oils, etc., as maybe necessary to complete said house according to the plans and specifications, Held, That a failure to pay for such materials, whereby a mechanic’s lien was filed on the building and lot, was a breach of the condition of the bond, and rendered the builder and his sureties liable thereon.</p> <p>2. Trial: bebíanding cause rob judgment. Where a district-court remanded a cause tried in the county court and taken on error to the district court to the county court to certify in the judgment that a certain party was surety, Held, That while the district court had authority to modify the judgment in that regard, the surety in whose favor the judgment was modified could not complain of the procedure.</p>

<p>Error to the district court for Pawnee county. Tried below before Broady, J.</p> <p>cited : Muldon v. Place, 6 Pac. Rep., 479. Haskins v. Citizens Bank, 12 Neb., 39. Sprague v. Haight, 6 N. W. Rep., 275. Morgan v. Bishop, 21 N. W. Rep., 263. Bank v. Benjamin, Id., 523. Ensign v. Boggencamp, 13 Neb., 32. Whereait v. Ellis, 31 N. W. Rep., 762;</p>

<p>1. Stare Decisis. Upon questions involving the construction of. a law of Congress, the decision of the supreme court of the United States is the supreme law, and by which the state courts, are bound.</p> <p>2. Taxes: shares oi? stock in national banks. .“In the assessment and taxation of shares of national hank stock, the owners thereof, having no other credits or moneyed capital, are entitled to deduct their bona fide debts from the value of sucli shares of stock.” Wasson v. Bank (Indiana), 8 N. E. Rep., 97.</p>

Appeal and cross-appeal from the district court of” Webster county. Heard below before Gaslin, J. cited: Blullhorst v. Scharner... 15 Neb., 59. Nelson v. Hurford, 11 Neb., 465. 2 Parson’s Notes and Bills, 420. Darst v. Baahus, 18 Neb... 231. Wortmdyhe u. Meehan, 9 Neb., 229. cited: Daniel on Neg. Int., Sec. 803. cited: N E. M. Si Co. v. Aughe, 12 Neb., 504. Amble v. Tt'imer, 17 'N. J_ Eq., 242. Masterson v. Grubbs, 70 Ala., 406. Barr Collier, 54 Ala., 39.

<p>1. Building Contract: subcontr actors: release. The firm of B. & Y. entered into a contract with S. to build a house for him in the city of O., for a stipulated price. B. & Y. let the contract for gas-fitting and plumbing to D. & W. S. was to make payments to his contractors monthly, upon estimates. While the work was in progress, and B. & Y. were indebted to D. & W. for about the sum of 518, they applied to S. for payment in excess of the estimate. This S. agreed to make if they would procure a release from some of the subcontractors. They thereupon procured from D. & W. the following:</p> <p>“Omaha, Neb., June 26, 1886.</p> <p>“We, the undersigned, accept W. F. Baker for contract on plumbing at J. S. Shropshire’s house.</p> <p>“Duncan & Wallace.”</p> <p>Held, That the above release, when read in the light of the surrounding circumstances, applied alone to the monthly estimate then due.</p> <p>2. -: -: evidence. The weight of testimony tends to show that D. & W. had refused to go on with the contract under B. & V., who had failed, and that S. had thereupon employed them to complete the work under his direction.</p>

<p>Error to the district court for Douglas county. Tried Relow before Hopewell, J.</p> <p>cited: B. & M. JR. R. Co. v. Beebe, 14 Neb., 463. Yost v. Conroy, 92 Ind., 464. Teerpenning v. Corn Exchange Ins. Co., 43 N. Y., 279. Benn. JR. JR. Co. v. Mareharit, 27 Am. Law Reg., 381. Julia Building Ass’n v. Bell Telephone Co., 88 Mo., 258. City of Denver v. Bayer, 7 Colo., 113. - Chicago & Bacific JR. JR. Co. v. Francis, 70 111.', 238. Page ■m. Chicago, MilwaiJcee & St. Paul JR. JR., 70 111., 328. ■City Council' of Montgomery v. Townsend, 80 Ala., 489. ■City of Bhawneetown v. Mason, 82 111., 337. G. C. & ■Sanie Fe R. R. Co. v. Eddins, 60 Texas, 656. Spencer v. R. R. Co., 23 West Va., 406. Moore v. City of Atlanta, ”7 Ga., 611. City of Atlanta v. Greene, 67 Ga., 386.</p> <p>cited: Mills on Eminent Domain, 2 Ed., 1888, Sec. 165. Snyder v. Western R. R. Co., 25 Wis., 61. Shattuclc v. Stoneham, etc., 6 Allen (Mass.), 116. Carter v. Thurston, 58 N. H., 104.. Snow-v. Boston & Maine R. R. Co., 65 Me., 280. M. P. R. R. v. Hayes, 15 Neb., 227. Brainard v. Boston R. R., 12 Gray, 407. Wichita, etc., v. Kuhn, 16 Pac. Rep., 76.. Gottschallc v. L. & N. W. R. R. Co., 14 Neb., 389. R. V. R. R. Co. v. Fellows, 16 Neb., 169. Chicago v. Taylor, 8 Supreme Court Reporter’, 820. Sutherland on Damages, 3d Mol., 434. Mills on Eminent Domain, paragraph 206.</p>

<p>Error to the district court for Nemaha county. Tried below before Appelget, J.</p> <p>cited: Pomr. Eq., Secs. 823,836,837. Loomis v. Armstrong, 29 N. W. Rep., 870. LCee v. Kee, 2 Gratt., 117. Betters v. Fanoell, 13 N. W. Rep., 319. Johnson v. Johnson, 26 Oliio St., 357. Allen v. Clark, 2 Blackf., 343. Oliver & Baum v. Bray, 4 Ohio, 193. Shoemaker v. Brown, 10 Kas., 392. Darrah v. Boyce, 29 N. W. Rep., 102.</p> <p>cited: Loose-more v. Smith, 12 Neb., 343. Kirk v. Bowling, 20 Neb., 263. Code of Civil Procedure, Sec. 580. Rogers v. Redick, 10 Neb., 332. State v. Meeker, 19 Neb., 450. Pomr. Eq. Jur., Yol. 3, Sec. 1154, p. -96-106 in., and foot-notes. Cox v. John, 32 O. St., 532. Abbott’s Ex’rs-v. Cole’s Adm’s, 5 O., 87. Rogers v. Weaver, 5 O., 536.</p>

<p>1. Corporations — Municipal:' bonds fob water-'works. Cities of the second class having more than 5,000 and less than. 25.000 inhabitants may issue bonds for the purpose of constructing, maintaining, and operating a system of water-works for such city, but the authority to do so must be conferred upon the officers of such city by a majority vote of the people at an election held for that purpose, and of which four weeks’ notice must be given by publication in a newspaper published within the county in which such city is located.</p> <p>2. -: paving bonds. The same rule must be applied to-the issuance of “ paving bonds” when issued under the authority of subdivision LVIII. of section 52, article 2, of chapter 14 of. Compiled Statutes.</p> <p>3. Mandamus. In an application for a writ of mandamus to compel the state auditor to register and certify municipal bonds, a writ will not issue until a strict compliance with all the prerequisites of the statutes is shown.</p>

<p>- Error to the district court for Webster county. Tried below before Gaskin, J.</p> <p>cited: Carrol vl Girard Fire Ins. Co., 13 Pac. Rep., 863.' Carberry v. German Ins. Co., 8 N. W. Rep., 406. Home Ins. Co. v. Dulce, 43 Ind., 418. Protection Ins. Co. v. Pherson, & Inch, 417.</p> <p>cited: Gere v. Council Bluffs Ins. Co., 67 Iowa, 272. Redman v. JEtna Ins. Co., 4 N. W. Rep., 591. Phoenix Ins. Co. v. Badger, 53 Wis., 283. Wood on Fire Ins., Sec. 430, 747. Code,. Sec. 128. Lane v. Maine Mutual Fire Ins. Co., 28 Am. Dec., 150. Roper v. Clay, 18 Mo., 383. Kittips v. Putnam Ins. Co., 28 Wis., 472. Phillips v. Protection Ins. Co., 14 Mo., 220. Keeney v. Putnam Ins. Co., 71 N. Y.,, 403. McBride v. Rep. Fire Ins. Co., 30 Wis., 562. Harrimanv. Queen Ins. Co., 49 Wis., 71. JEtna Fire Ins. Co. v. Tyler, 16 Wend., 402. Rogers v. Traders Ins. Co.,. 6 Paige Ch., 583. Blalce v. Ex. Ins. Co., 12 Gray, 265. Carson v. Jersey City Ins. Co., 14-Vroom, 300. Wood on Fire Ins., Sec. 492.</p>

<p>Error to the district court for Douglas county. Tried below before Wakeley, J.</p> <p>cited: Ontario-Bank v. Root, 3 Paige, 478. Champlin v. Parrish, 11 Paige, 408. Fry on Specific Performance, Sec. 166. Sunderson v. Jackson, Langdell’s Select Cases on Sales, 340. Allen v. Burk, 2 Md. Cli. Dec., 534. Legal v. Miller, 2 Ves., Sen., 299. Mainwaring v. Baxter, 5 Ves., 458. Jjanz v. McLaughlin, 14 Minn., 72. Palmer v. Scott, 1 Russell & Mylne (Eng. Chancery), 394. Justice v. Lang,. 52 N. Y., 323. Garirell v. Stafford, 12 Neb., 553. Champion v. Joslin, 44 N. Y., 653. Greenleaf on Evidence-,(13th Ed.), Sec 603, and cases cited in note 8. Guihman v. ICearn, 8 Neb., 507. Maxwell’s Pleadings and Practice (1885), 636. Richmond v. Gray, 3 Allen, 25. Storey v. Krewson, 55 Ind., 397. Eliason v. Henshaw, 4 Wheaton, U. S., 225. Rommel v. Wingate, 103 Mass., 327-Pinner v. Sharp, 23 N. J. Eq., 274.</p> <p>cited: 1 Story’s Equity (11 Ed.), Sec. 736 and note. 1 Parsons-on Contracts, 511. Otis v. Payne (Tenn.), 8 Southwestern Rep., 848. Johnston v. Trippe, 33 Federal Rep., 530.-Qartrell v. Stafford, 12 Neb., 545. Moses v. McClain. (Ala.), 2 Southern Rep., 741. Hollis v. Burgess (Kas.) 15 Pac. Rep., 536. 1 Parsons on Contracts, 46, et seq. Wade on Notice, Sec 382. Post v. Qarrow, 18 Neb., 682.. Kellogg v. Lavender, 9 Neb., 425. Welch v. Darling (Vermont), 7 Atlantic Rep., 547. Johnson v. Me Cruder, 15 Mo., 365. Ledbetterv. Walker, 31 Ala., 176. Marston ■v. Roe, 8 Ad. & E., 15. Coleman v. Garrigues, 18 Barb., 60.</p>

<p>Error to the district court for Saunders county. Tried below before Post, J.</p> <p>cited: O. & R. V. R. R. Co. v. Brown, 14 Neb., 170. O. & R. V R. R. Co. v. Brown, 16 Neb., 161. Brown v. The Cayuga & Susquehanna R. Co., 12 N. Y., 486. Lawrence v. The Great Northern R. R. Co. (16 Ad. & El.),, 643.</p> <p>cited: Hilliard on New Trials, 267. Owens v. Kansas City, do., R. R. Co., 8 Southwestern Rep. (Mo.), 350. Sioux Oily & Pacific R. R. Co. v. Finlayson, 16 Neb., 578. Cardwell v. Bridge Co., 113 U. S., 205. Pound v. Turok,. 95 U. S., 459. O. & R. V. R. R. Co. v. Brotan, 14 Neb.,. 173. Bedford, eic., R. R. Co. v. Rainbolt, 21 Am. and Eng. R. R. Cases, 466. Kansas Pacific R. R. Co. v. Miller, 2 Colo., 444. Grote v. R. R. Co., 5 English R. R. and Canal Cases, 649. Ward v. Louisville, etc., R. R. Co., 3 Am. and Eng. R. R. Cases, 506. Bellinger v. N. Y. C. R. Co., 23 N. Y., 42. Field’s Law of Damage?, 19.</p>

<p>Error to the district court for Sarpy county. Tried' below before Wakeley, J.</p> <p>cited: 1 Jarman on Wills, 37, 39, 41, 44. Redfielcl on Wills, Sec. 43, 529. ' Pool’s Heirs v. Pool’s Executor, 33 Ala., 146. Tyler v. Gardiner, 35 N. Y., 593.</p> <p>cited: In re Will of Carroll, 7 N. W. Rep., 434. 1 Jarman on Wills, 5 Am. Ed., 131, note E. Bradford v. Vinton, 26 N. W. R., 401. ' Samson v. Samson, 25 N. W. R., 233-237. Storer v. Zimmerman, S N. W. R., 827,</p>

<p>I. Error without Prejudice. Where evidence is introduced without objection to prove certain facts, a party cannot predicate error thereon ; and the same rule will apply if a party excepts to the introduction of certain evidence, and afterwards introduces the evidence objected to, or that of a like character.</p> <p>Ü. An Instruction’ in a party’s favor is not ground for reversing a judgment against him.</p> <p>3 Railroads: damages foe eight of way. In an appeal from the award of damages sustained by a land owner from the location of a railway across his land, he is entitled to full compensation for the land actually taken, and for such damages to the residue of the land as are equivalent to the diminution in value thereof — general benefits not to be considered.</p> <p>4. Instructions set out in the opinion, Held, To be substantially correct.</p>

<p>Error to the district court for Brown county. Tried below before Kinkaid, J.</p> <p>cited: 1 Greenleaf on Evidence, Sec. 218. Walrath v. State, 8 Neb., 87. Wharton Crim. Ev., Sec. 689, 552. 1 Green. Ev., 254. JMJoElvoy v. State, 9 Neb., 165. Sehleneker v. State, 9 Neb., 300. Preuit v. People, 5 Neb., 377. Simmerman v. State, 14 Neb,, 568, Craft v. State, 3 Kas., 450.</p> <p>cited: JHeldt v. State, 20 Neb., 496. Ballard v. State, 19 Neb., 615. Wharton’s Crim. Ev., 8th Ed., 673. Maxwell Crim. Pro., 227, note 1. Johnson v. State, 10 Tex. (App.), 571. Bussell v. State, 53 Miss., 367. Fisher v. State, 64 Ind., 435.</p>

<p>Accord and Satisfaction. The rule is, that where the damages are uncertain, accord and satisfaction before judgment by one of several joint wrong-doers is satisfaction as to all; but the discharge of a party not shown to be a joint wrong-doer will not operate as a discharge of the other defendants.</p>

<p>1. Foreclosure of Mortgage: action quia timet: estoppel. E. was the owner of real estate upon, which, and other lands, Y. held a mortgage, and upon which B. held a tax deed. E. died intestate, leaving R. E. his sole heir at law. C. administered on the estate of E. V. brought suit to foreclose his mortgage, making C. and B. defendants, but not E. E. The trial court rendered a decree in favor of V. foreclosing his mortgage, and finding due him thereon, §1,908.04, and finding and decreeing that the tax deed of B. conferred upon him a valid title to the land conveyed by it. It was afterwards discovered that by mistake of the court the decree in favor of Y. was too great in amount, that the amount due him on said mortgage was only §1,681.87. Thereupon the respective attorneys of Y. and C. made and filed in said court a stipulation for the modification and correction of said decree as to the amount thereof only, and upon their request B. also signed said stipulation. It. K. after-wards, in consideration of the release and satisfaction of said mortgage, made a quit-claim deed to Y. of all the lands covered by said mortgage. B. afterwards conveyed the land covered by his tax deed to W., and Y. conveyed the same land to Y. In an action between Y. and W. involving the title to said last mentioned land, Held, That Y., as grantee of Y. with notice, was not estopped to deny the title of W. derived from B.</p> <p>2. The Pleadings and evidence examined, and Held, To sustain the judgment.</p>

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

<p>1. Partnership. Evidence examined, And Held, To sufficiently establish partnership relations between Blake and Maurer to sustain the verdict and judgment.</p> <p>2. -: PURCHASE OF GOODS BY ALLE<jpD PARTNER : TRIAL : evidence. An alleged partner of M. having ordered goods of a wholesale house, to be shipped to M. at Omaha, some time after the shipment and receipt of the goods at Omaha the vendors drew on M. for the price of the goods, in favor of a bank at O. The draft was presented to M. at his place of business, by a messenger of the bank, but was not accepted or paid. In an action by the vendors against M. for the price of the goods, on the trial M., being on the stand as a witness in his own behalf, was asked the following question : “ What did you tell the messenger?” which was, under objection, refused. Held, No error.</p> <p>3. -: -: -. While on the stand as a witness in his own behalf, M. having testified as to all of the agreement and transactions between himself and B., who ordered the goods, was asked the following question: “Was there any authority in Mr. Blake to order the goods for you?” which, being objected to, was refused. Held, No error.</p> <p>4. Instructions considered, And Held, Applicable to the evidence and pleadings in the case.</p> <p>6. Parties: omission of one party : plea in abatement. When a party is omitted who is liable to be jointly sued, upon a personal contract, the objection, where it does not appear on the face of the petition, can only be taken by answer in the nature of a plea in abatement, and if this be omitted, the defendant will be chargeable with the whole debt.</p>

<p>1. Criminal Law: joinder oe oeeenses in indictment for misdemeanor. In the case of misdemeanor several distinct offenses of the same kind may be joined in the same indictment. See State v. Gwmmer, 22 Wis., 441.</p> <p>2.--:--: sentence. In such cases a separate sentence should be passed on each count of the indictment upon which . the defendant is found guilty by the verdict of the jury.</p> <p>3.--:--: continuance: discretion of court. In such case the granting or the refusal of an application for a continuance is largely within the discretion of the trial court. To enable a court of review to find reversible error in the refusal of such application, it must be shown that there was an abuse of such discretion.</p>

<p>1. Trial: evidence. A conversation had after the commencement of the action, but before court, between the attorney for the plaintiff and a man who was afterwards subpoenaed and called by defendant as a witness, as to the probable result of the suit and the line of prosecution which, in the opinion of the attorney, would insure success on the part of the plaintiff, Held, Inadmissible in evidence on the part of the defendant.</p> <p>3. -: argument of ATTORNEY. Certain remarks of counsel for the plaintiff in his closing argument to the jury were objected to by counsel for the defendant, and the objection overruled by the court. Held, That although there was departure from the rules of propriety and legitimate debate by counsel for the plaintiff, which should not have been approved by the trial court, yet, as such line of argument does not appear to have been continued or persisted in after objection, the overruling of the objection is not deemed reversible error.</p> <p>3. -: conflicting evjdence. There was a conflict of evidence as to the ownership of a part of the property replevied, two witnesses testifying to one state of facts, and one witness testifying to another and different state of facts. Held, That the question raised by this conflicting evidence was for the jury, and not for the court of review.</p> <p>4. The Instructions given and refused examined, and Held, Correctly given and refused.</p>

<p>1. Injunction: petition. A party who seeks to enjoin a judgment on the ground that it was obtained by fraud and misrepresentation, must state the facts constituting the grounds for relief</p> <p>2.--: fraud. Where a creditor, in dealing with persons unaccustomed to business, assures them that if there is any mistake that he will correct it when they come to pay the notes then being giyen, and they rely upon his honesty and representations, and are thereby induced to confess judgment for a greater sum than is actually due, a court of equity may grant relief.</p> <p>3. Evidence in behalf of both plaintiff and defendant examined, and found to be too indefinite to warrant a decree for either.</p>

<p>1, Liquors: license. The design of the law regulating the traffic in intoxicating liquors is to place the traffic in such liquors solely in the hands of peaceable, law-abiding persons. Therefore, if it is made to appear to the licensing board that the applicant for license during the preceding year has been guilty of the violation of any of the provisions of the act, as by selling intoxicating liquors to an habitual drunkard, the board “ shall refuse ” to issue a license to such applicant.</p> <p>2. -: -. A member of a village board who signs a petition for a license to a certain person to sell intoxicating drinks in such village, thereby debars himself of the right to act upon such petition; in other words, he cannot be petitioner and judge in the same case, and if without his vote the board is equally divided, no valid license can be issued.</p>

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

<p>1. Exemption. The rule as applied in' The People v. MeClay, 2 Neb., 7, adhered to, that where the debtor has neither lands, town lots, nor houses subject to exemption, he may in lieu thereof hold personal property of the value of $500; and it is the duty of the officer levying the execution, when the debtor files an inventory of all his property, to call three disinterested freeholders of the county to appraise such property, and if its value does not exceed $500, return it to the owner.</p> <p>2. -. If the officer neglect or refuse to call appraisers, the debtor may by mandamus compel him to act, or may bring an action against him for non-performance of his duty, or may enjoin the sale under the execution, upon the ground that the ■ officer is proceeding illegally under a claim of right. Johnson v. Sahn, 4 Neb., 149.</p>

<p>1. Taxes: foreclosure of tax lien. A brought suit in the district court to remove a cloud upon his title to real estate caused by a treasurer’s tax deed to the defendant in the action, and in which he was successful in the district court. The defendant appealed to the supreme court, where the decision of the district court was reversed, upon the ground that A did not pay or offer to pay the taxes justly chargeable to the property, and the cause was remanded to the district court, with permission to A, upon payment of costs, to amend his petition by making the offer to pay taxes, and proceed with the case; but it is not shown that any further action was taken in the case. In a suit brought by the defendant in that action tofforeclose his lien upon the real estate, for taxes paid under his purchase, and against the grantees of A, It was Held, That the judgment of reversal in the former case was not a bar to either party, and that a decree of foreclosure must be rendered in favor of plaintiff for the amount to which he was entitled by law.</p> <p>2.--:--: evidence. In such case, where the action was to quiet the title of the holder of the tax deed, or in the case of the, failure of his title for a foreclosure of his lien, and where the tax deed showed upon its face that it was void, it was not error for the district court to refuse to receive it in evidence for any purpose.</p> <p>3. -: -. In an action to foreclose a tax lien, a technical defense, such as the omission of the oath from the assessment roll, there being no objection to the fairness of the assessment itself, will be unavailing.</p> <p>4. -: -. An agreement between a tax-payer of a county or city and such corporation, that certain services were to be rendered by him in consideration that his taxes were to be canceled, will not avail the tax-payer in an action between him, or his grantee, and the purchaser of real property at tax sale, notwithstanding he may have performed his part of the con- • tract, it not appearing that the county or city had complied with its contract and paid the taxes.</p>

<p>1. Statutes. Section 2 of chapter 42 of the Session Laws of 1887' is not repealed or modified hy section 1 of chapter 44 thereof.</p> <p>2. -: county clerk: eees eor tax list. Under the provisions of said chapter 42, the county clerk is entitled to four-cents per line for preparing the tax list, hut is not required to-enter the same on his fee hook.</p>

<p>Justice of Peace: new trial : change of venue : appearance. Where judgment was rendered by a justice of the peace against a defendant, in his absence, after appearance and adjournment of the cause, which judgment was upon defendant’s motion set aside under the provisions of section 1001 of the civil code, and the defendant thereupon filed a motion for a change of venue, which was granted, the cause being sent to another justice, where both parties appeared, and upon the demand of the plaintiff a jury trial was had upon the merits of the case, It was Sell, That by the appearance and trial of the cause before the second justice the plaintiff waived whatever error might have been committed by the first justice of the peace in setting aside the judgment and granting a new trial.</p>

<p>1. County Treasurer: fees. The compensation of county-treasurers, for moneys collected by them, is fixed by section 20 ■of chapter 28 of the Compiled Statutes, and cannot exceed ten» per cent on the first 53,000; four per cent on all sums over '$3,000 and under $5,000; and two per cent on all sums over $5,000 (school moneys excluded); and in computing the amount ■collected, for the purpose of charging percentage, all sums, from whatever funds derived, shall be included together (except the school fund), the fees to be charged to the different funds pro rata, and be allowed but once.</p> <p>'2. -: —-: FOWEE of county board. Where the compensation for services rendered by a county officer in his official capacity is definitely fixed by law, the auditing of the same by the county board is a ministerial duty, unattended with the exercise of any judicial discretion, and therefore, in such case, the board cannot make such compensation any greater nor any less than that fixed by the law.</p>

<p>1.Ejectment: jurisdiction. S. brought an action in a district court of the late territory of Nebraska against P., who was a non-resident, obtained an order of attachment, which was levied upon a city lot. Service was had upon P. by publication, only. No appearance was made by P. Judgment by default was regularly entered, order issued for the sale of the attached lot, sale made and confirmed. There being an execution issued for a supposed deficiency, certain lands situated in the same county were levied on and sold by the sheriff, and bought in by S. In an action of ejectment by the grantee of P. against the-grantee of S. for the said land, Held, That the same was a direct proceeding against the colorable levy, sale, and deed of said land to £., which are void.</p> <p>2. Taxes: deed. A tax deed under the act of 1861, not executed under the official seal of the county treasurer, Held, Void.</p> <p>3. Adverse Possession. Evidence introduced for the purpose of proving the adverse possession of the land in question for the period of ten years before the commencement of the suit, examined, And Held, To sustain the verdict and j udgment.</p>

<p>Appeal from the district court of Sherman county. Heard below before Gaslin, J. '</p>

<p>Common Carriers. The M. P. Railway Company received a piano at W., to be carried to L. and delivered to a connecting common carrier for transportation to P. At L. the track of the M. P. railway crossed the track of the B. & M. railroad, the tracks and stations being connected by a “ Y.” The piano was carried to L. by the M. P. Railway Co., and delivered to two draymen to be transferred to the B. & M. Railroad Co. at its station. Before delivery to the last named railroad company, and ’ whiie in the possession of the draymen, it fell oat of the wagon and was broken, and was not received by the agent of the B. & M. Railroad Company. It loas Held, That the verdict of the jury in favor of the owner of the piano in an action against the M. P. Railway Company was sustained by the evidence, and that by, the instructions of the court the question as to whether the draymen or the B. & M. Railroad Company was the connecting common carrier was fairly submitted to them for decision.</p>

<p>Error to the district court for Douglas county. Tried below before Wakeley, J.</p> <p>cited: Thompson on Homestead and Exemptions, Sec. 45. Bell v. Keaoh, 14 C. L. J., 298. Wilson v. McElroy, 32 Pa. St., 82. Waugh v. Burhet, 3 Grant Cas., 319. Wade v. Jones, 20 Mo., 75. Sallee v. Watson, 17 Ala., 482. Smyth Homestead and Exemptions, Secs. 520, 521, 524, 532, 441. Wilson v. Coohran, 31 Texas, 677. Brigham v. Bush, 33 Barb., 598.</p>

<p>■Constitutional Law. State warrants issued in pursuance of an appropriation, and secured by a levy of taxes for their payment, are “ state securities,” within the provisions of section 9, article 8 of the constitution of this state.</p>

<p>1. Constitutional Law: deputies fob state officers. Sec. 26, Art. 5 of the constitution, prohibits the creation of a new executive department, but does not prohibit the appointment of a deputy by the auditor, treasurer, secretary of state, or commissioner of public lands and buildings.'</p> <p>2. -: -: “clerk” defined. The word “clerk,” in Sec. 24, Art. 5 of the constitution, is used in the same sense as at common law, viz., a person employed in an office, who writes or registers in proper form the transactions of the tribunal or body to which he belongs.</p> <p>3. -: -: -. The prohibition against “clerk hire” in the office of the attorney general does not preclude the legislature from providing for a deputy or assistant attorney general.</p> <p>4. -- — :--: stenographer. A stenographer is one skilled in the art of writing in shorthand, by using abbreviations or characters for whole words, and does not come within the common law definition of the word clerk.</p>

<p>“Work and Labor: evidence. In an action to recover for work and labor, the defendant on the trial admitted “that the services performed were reasonably worth ¡¡>16 per month, if there was a contract established, either express or implied.” Held, That the weight of testimony tended to establish a contract between the plaintiff and defendant for the payment of such services.</p>

<p>Error to the district court for Lancaster county. Tried below before Field, J.</p> <p>cited; Cor-field v. Coryell, 4 Wash. C. C., 371. Campbell v. Morris, 3 H. & McEL, 535. Ward v. Morris, 4 H. & McEL, 330. Bowlin v. Byon, 25 N. W. Rep., 766.</p> <p>cited: Strauder v. West Virginia, 100 U. S., 303. Virginia v. Rives, Id., 313. People v. King, 18 N. E. Rep., 245. Mayor v. Miln, 11 Peters, 102. Cooley Const. Lira., 3 Ed., 390. Donnell v. State, 48 Miss., 661.</p>

<p>Error to the district court for Douglas county. Tried ' below before Hopewell, J.</p> <p>cited: Addison on Torts, Wood's Ed., Yol. 1, Sec. 564. Dynen v. Leaeh, 26 Law J. Exch., 221. Nashville, eta., JR. JR. Co. v. Elliott, 1 Cold. (Tenn.), 611. Mad River, eto., R. R. Co. v. Barber, 5 Ohio State, 541. Strahlendorf v. Rosenthal, 30 Wis., 674. JKroy v. C'., R. I. & JP. R. R. Co., 32 Iowa, 357. Gibson v. Pacific, R. R. Co., 46 Mo., 163. Wonder v. Baltimore R. R. Co., 32 Md., 411. Coombs v. New Bedford Cordage Co., 102 Mass., 572. Palor v. C., B. & Q. R. R. Co., 52 111., 401. Fry v. Dubuque & S. W. R. R., 45 Iowa, 416. Benton v. Central Railroad, 42 Iowa, 192.</p> <p>cited: Cooley on Torts, 549. 2 Thompson on Negligence, 944. Gibson v. Pacific R. R. Co., 46 Mo., 163, B. & M. R. R. Co. v. Crockett, 19 Neb., 138. C. & N W. R. R. v. Swett, 45 111., 197. Shanny v. Androscoggin Mills, 66 Me., 420. T., P. & W, R, R, Co. v. Conroy, 68 111., 560.</p>

<p>Attachment: damages : negligence. Where a professional person is employed to render certain service in the line of his profession, and the testimony when construed most strongly against him tends to show mere negligence in performing the same, from which his employer suffers damage, such employer will not he entitled to an attachment against the property of such person in an action to recover such damages upon the ground that he had fraudulently contracted the debt.</p>

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

<p>1. Foreign Judgment: revivor: statute op limitations; ■ A judgment was recovered against one A, in the state of Iowa, in the year 1866. Afterwards he removed to this state, and prior to the year 1886 had resided herein eight years. In the latter year, however, he returned to Iowa, where personal service was, had upon him to revive the judgment. The judgment was-thereupon revived, and an action brought thereon in this state. Held, That as the judgment of revivor had been obtained within five years before bringing the action in this state, it was not barred by our statute of limitations, which requires an- action; on a foreign judgment to be brought within five years.</p> <p>2. -: jurisdiction. Where the courts of another state have jurisdiction of the subject-matter and the parties, the merits of the controversy must be tried in such tribunals, and no defense is available in an action on such judgments in this state which could have been interposed in such courts.</p>

<p>Error to the district court for Pawnee county. Tried below before Broady, J.</p> <p>Service of process: Cleghorn v. Waterman, 16 Neb., 226. Leaehv. Milburn Wagon Co., 14 Neb., 106. Whitman v. Keith, 18 Ohio St,, 134. B. & M. R. R. Co. v. Dieh & Son, 7 Neb., 242. Amendment of petition: Field v. Morse, 8 How. Pr., 47. Hollister v. Livingston, 9 How. Pr., 140. Bliss Code Pleading, Sec. 306. Verdict against evidence: Kemmil v. Wilson, 4 Washington, 308. Bough-ton v. U. S., 12 Court of Claims, 337. Right to maintain action: Hays v. Hathorn, 74 N. Y., 486. Towne v. Wason, 128 Mass., 517. Woodsum v. Cole, 10 Pac. Rep., 331. Morse v. Godfrey, 3 Story, 364, 389. Instructions : Levi v. Latham, 15 Neb., 509. Sons of Temperance v. Brown, 9 Minn., 157. Bliss Code Pleading, Sec. 246, 247, 249. State v. Taylor, 12 Ohio State, 133. ü S. Bank v. Stearns, 15 Wend., 314. Lord v. Bigelow, 8 "Vt., 445.</p> <p>cited: Civil Code, Sec. 144. Heed v. Beardsley, 6 Neb., 493. Mills v. Miller, 3 Neb., 87. Farris v. Merritt, 63 Cal., 118. Hawes.on Parties, Sec. 35. Overall v. Filis, 32 Mo., 326. Carper v. Hunger, 62 Ind., 481. Hunter v. Levan, 11 Cal., 12. Bulles v. BeForest, 19 Conn., 201. McWilliams v. Bridges, 7 Neb., 419. 1 Parsons Notes and Bills, 218.</p>

Original application for mandamus to compel defendants to register bonds issued by tbe city of Wahoo, and delivered to the relator. cited: State v, Holden, 19 Neb., 249. cited: State v, Kinzer, 20 Neb., 176. People v. Porter, 6 Cal.,.26. State, ex rel. McHenry, v. Jenkins, 43 Mo., 265. State v. Robinson, 1 Kan., 17.

<p>Error to the district court for Douglas county. Tried below before Neville, J.</p> <p>cited : B. &■ M. B. B. Co. v. Bebee, 14 Neb,, 463. Yost v. Conroy, 92, Ind., 464. City of Denver v. Bayer, 7 Col., 113. C. & P.. B. B. Co. v. Francis, 70 111., 238. Eberhart v. C., M. & St. P. By., Id., 347. Gottschalk v. G, B. & Q. B. B 14 Neb., 551.</p> <p>cited: Sohaller v. Omaha, 23 Neb., 325.</p>

<p>1. Sale: declaration op vendor: evidence. The declaration of one from whom a party obtains title to property, made after the transfer of title, and in derogation thereof, is inadmissible for the purpose of defeating such title. But where the vendor, being examined as a witness to prove a sale, was asked, on his cross-examination, whether he had not, at a time subsequent to the alleged sale, offered to sell the same property, as. the owner thereof, to another, which he denied, it was Held, Legitimate, for the purpose of impeachment only, to call other witnesses to prove the fact.</p> <p>2. Replevin: attached property: evidence. Where an. officer attaches property found in the possession of a stranger, claiming title, in an action of replevin therefor by such stranger, the officer, in order to justify, must not only prove that the attachment defendant was indebted to the attachment plaintiff, but that the attachment was regularly issued.</p>

<p>Error to the district court for Johnson county. Tried. below before Broady, J.</p> <p>cited: Vander■lip v. Derby, 19 Neb., 167. _8tate v. Weber, 20 Neb., 471, 472. State v. Corn's. Cass Co., 12 Neb., 54.</p> <p>cited: Small v. Orne, 79 Me., 78. Sec. 3, Chap. ■50, Compiled Statutes. Corbett v. Duncan, 63 Miss., 84.</p>

<p>1. Execution: levy. An execution issued on an ordinary judgment at law, if levied on a mere equity in real estate, the debtor not being in possession, and the legal title being in the name of another, will not pass the title of such equitable owner to the purchaser.</p> <p>2. Power of Attorney: sufficiency. A power of attorney which fails to authorize the donee of the power to convey property of the principal is not sufficient to justify the making of a deed under such power, and thereby convey the title of the principal.</p> <p>3. Divorce. A stipulation set out in a decree of divorce, Held, Sufficient to show community of property between the divorced parties.</p> <p>4. Foreign Judgment. Objections to a transcript of a judgment of another state, that it contains no certificate of the presiding judge “that the attestation is in due form of law,” must be specific.</p> <p>5. Ejectment: improvements. In an action of ejectment, where there is proof tending to show that the defendants were in possession under an execution sale made several years before the bringing of the suit, and that they had made certain improvements on the real estate, paid taxes thereon, etc,, Held, That before ^ writ of restitution will be issued, the plaintiffs below must pay the value of such improvements and the amount paid for taxes, with interest thereon.</p>

<p>Error to the district court for Douglas county. Tried below before Hopewell, J.</p> <p>cited: Organ Go. v. Boyle, 10 Neb., 412. Wade on Notice, 2 Ed., Sec. 84, 55. Daniels Neg. Inst., Sec. 769a. Daniels Neg. Inst., Sec. 1202. High v. Merchants Bank, 6 Neb., 155. Cheney v. Stone, 29 Fed. Rep., 885. Dobbins v. Oberman, 17 Neb., 163. Johnson v. Way, 27 Ohio State, -374. Neillsville Bank v. Tuthill, 30 N. W. Rep.,. 154. National Bank v. Johnson, 104 U. S., 271. Citizens Bank v. By-man, 12 Neb., 542. Baity v. Smith, 14 Ohio State, 396.</p> <p>cited : Bulen v. Oranger, 25 N. W. Rep., 189. Stanton County v. Can-field, 10 Neb., 389. Glenn v. Gleason, 15 N. W. Rep., 661. Norris v. Cargill, 15 Id., 148. Pullen v. Pullen, 5 Atlantic Rep., 640. Clark v. Pease, 41 N. EL, 414. Woi-tendyke v. Meehan, 9 Neb., 229. Cummings v. Thompson, 18 Minn., 246. Atlas Bank v. Doyle, 9 Rhode Island, 76. Dresser v. M. & I. By. Construction Co., 93 U. S., 92. Mann v. Second National Bank of Springfield, 1 Pae. Rep., 579. '</p>

<p>1. Instructions asked by plaintiff in error, Held, Rightly refused by the trial court.</p> <p>3. Execution: levy : evidence. A statement made by J. A. W., the husband of the defendant in error, to the effect that he desired to hasten certain corn to market to prevent the same being taken in execution to pay the rent of the land on which the corn was raised, the corn involved in the suit at bar not having then. been produced, and there being no evidence of agency on the part of J. A. 'W'., Held, Inadmissible in evidence to sustain a levy on the last named corn made upon an execution issued on a judgment against J. A. W., rendered for the rent of the land on which the first named corn was raised.</p> <p>3. The Instruction numbered 3, asked by plaintiff and given by the trial court, examined and approved.</p> <p>4. Verdict Against Evidence. There being no sufficient evidence to sustain the verdict for damages, Held, That the judgment would be reversed unless all of such damages except a nominal sum be remitted within the time specified.</p>

<p>Corporations — Municipal: paying bonds. The ninth proviso to the act entitled “ An act to amend sections 27 and 58, and to add subdivisions LYOT, and LIX. to section 52 oi'arlicle 2 of chapter 14 of the Compiled Statutes, relating to cities of the second class having over five thousand (5,000) inhabitants, and to repeal said original sections 27 and 58, and all acts and parts of acts in conflict with this act,” approved March 30, 1887, Held, Not to apply to, limit, or qualify the provisions of section 2 of said act, which authorizes and empowers the mayor and council to issue “ district paving bonds ” for the purpose of paying the cost of paving, macádamizing, or repaving the streets and alleys in any paving district, exclusive of the intersections of streets and space opposite alleys therein.</p>

<p>Error to the district court for Douglas county. Tried below before Hopewell, J.</p> <p>cited: Ross v. Gould, 5 Me., 212. Grube v. Wells,, 34 Iowa, 150. Bliatt v. Kirkpatrick, 48 Iowa, 78. Trussel v. Lewis, 13 Neb., 415. Howard v. Reedy, 29 Ga., 154. Brown v. Cockerell, 33 Ala., 45.</p> <p>cited: Gatling v. Lane, 17 Neb., 77. Stettnische v. Lamb, 18' Neb., 619. Yetzer v. Thoman, 17 Ohio St., 130. French v. Pearce, 8 Conn., 439. Hamilton v. Wright, 30 la., 480. Brown v. Leete, 6 Sawyer, 332, 339. Tex v. Pflug, 24-Neb., 666. Grim v. Murphy, 110 111., 271. Meyer v. Weigman, .45 la., 597. Bunce v. Bidwell, 43 Mich., 542. Brown v. Anderson, 90 Ind,, 94. Or ary v. Goodman, 12 N. Y., 266.</p>

<p>Error to the district court for Richardson county. Tried below before Broady, J.</p> <p>cited: 1 Blackstone Com., 454.</p> <p>cited: Walker’s American Law, Secs. 108, 109. 2 Kent Commentaries,, 208. Lebanon v. Griffin, 45 N. H., 558.</p>

<p>Error to the district court for Douglas county. Tried below before Hopewell, J.</p> <p>cited: Thompson on Carriers of Passengers, 209. Beach on Contributory Negligence, 190. Wood’s Railway Law, 1065. Thompson on Carriers of Passengers, 199. Wood’s Railway. Law, 1049. Black Proof and Pleading in Accident Cases, 94. Railroad Co. <v. 8toid, 17 Wallace, 657. City of Lincoln v. Gillilan, 18 Neb., 116. A. & N. R. R. Co. v. Bailey, 11 Neb., 332. State v. Q. T. R. R., 58 Maine, 176. Johnson v. Boston & Maine R. R., 125 Mass., 75. Commonwealth v. Boston & Maine R. R., 129 Mass., 500.</p> <p>cited: Thompson'on Negligence, 417, note 1. Wood’s Railway Law, 1170. Hulbert v. N. Y. C. R. R. Co., 40 N. Y., 145. McDonald v. Chicago & N. W. R. R. Co., 26 Iowa, 124. Warren v. Fitchburg R. R. Co., 8 Allen, 227. Knight v. Portland, 8. & P. R. R. Co., 56 Me., 234. Warren v. Fitchburg R. R. Co., 8 Allen, 227. W heeloclc v. Boston & Albany R. R. Co., 105 Mass., 203.</p>

<p>Error to the district court for Douglas county. Tried below before Groff, J.</p> <p>cited: State v. Wilson, 1 Am. Dec., 216. Williams v. State, 52 Ga., 580. Green v. State, 68 Ala., 539. Stone v. State, 63 Ala., 115. Riñes v. State, 50 Ala., 153. Roscoe Cr. Evidence, 340. 2 Russ, on Crimes, 2. 4 Blackstone Com., 226.</p>

<p>Criminal Law: autrefois acquit. The plaintiff in error was brought to trial before the district court and a jury upon an information for murder in the first degree. The jury, after being sworn, hearing the evidence and charge of the court, retiring and deliberating upon their verdict, were discharged by the court without agreeing upon a verdict. Upon being placed on trial a second time, she offered her plea of former acquittal, in which she alleged that, at the May, 1887, term of said court, the county attorney of said county presented his information against heT for the same offense with which she now stands charged ; that she was duly arraigned in said court on said information, and plead not guilty thereto; that thereupon a jury was duly empaneled and sworn in said cause, and the evidence on the part of the state as well as the defense was all introduced and submitted to said jury; that the jury was thereupon instructed by the court, and that thereupon the jury, in charge of a bailiff of said court, retired to deliberate upon their verdict, and that after said jury had been out a space of twenty hours, and no. more, without agreeing on a verdict, they were brought into-court, when said jury were discharged by the' court without agreeing on a verdict, and without disagreeing, or any other special cause, there being no special necessity for discharging saidjury; that defendant thenand there objected and protested; which said plea was accepted by the court, and to which the county attorney on the part of the state presented and filed a general demurrer. The demurrer was sustained, and the defendant again tried and convicted of murder in the second degree. On error to this court, Held, That the district court erred in sustaining the said demurrer. Judgment reversed and cause remanded with instructions to overrule said demurrer, and for further proceedings.</p>

<p>Error to. the district court for- Johnson, county. Tried, below before Beo.ady, J.</p> <p>cited: Kay v., Noll, 20 Neb., 380, 386', Hammond v. Jewett & Co., 22 Neb., 363. Sandwich Mnfg. Co.v. Feary, Id., 53, Shag-, leigh v. Dutaher, 15 Neb., 563, Smith v. Hans, 13 Neb., 314,</p> <p>cited: Knowltoi\ v.. Haioes% 10, Neb., 535, Shellenbarger v. Biser, 5 Neb., 203. Pomeroy v. Bailey, 43 N. H., 125. Osgood v. Eaton, 63 N. H., 355. Babb v. Clemmson, 12 Serg. & R., 328. Smith et al. v. Sands, 17 Neb., 498. Fredriolc v. Allgaeir, 88 Mo., 598. Bullis v. Drahe, 20 Neb., 171.</p>

<p>Error to the district court for Boone county. Tried below before Tiffany, J.</p> <p>cited : State v. Shuohardt, 18 Neb., 454. Const., Sec. 12, Art. 1. Bishop on Crim. Law, 7 Ed., Yol. 1, Secs. 1015, 1016, 1045. Cooley’s Const. Limitations, 4 Ed., 327. Wharton’s Crim. Pleading and Practice, 8 Ed., Sec. 447.</p> <p>cited: Bohanan v. State, 15 Neb., 212.</p>

<p>1. Railroads: injuries to stock: speed oe cars in city limits : EVIDENCE. Where property is injured by a train of cars in a city, in a suit against the railroad company to recover damages, on the ground of negligence on the part of such company in running the engine at too great a speed, the ordinance of the city limiting the speed of trains to six miles an hour within the corporate limits, is proper evidence to go to the jury on the question of negligence.</p> <p>2.--:--:--: NEGLIGENCE. Where such ordidance imposes a duty upon those in charge of railroad trains, a failure to discharge such duty may be considered by a jury in determining whether such railroad company was guilty of negligence where property has been injured or destroyed.</p> <p>3. Instructions given, examined, and Held, Correct.</p>

<p>1. Municipal Corporations: grading streets: injunc- . TION TO RESTRAIN COLLECTION OR TAXES. “An act to incorporate cities of the first class, and regulating their duties, powers, and government,” approved March 1st, 1881, authorizes the mayor and council to “levy and collect special taxes and assessments upon the lots and pieces of ground adjacent to and abutting upon the street, avenue, * * * thus in whole or in part graded,” etc. Reid, That where a petition for an injunction denied that there was “any street laid out by said city, or any grading done by or in pursuance of any ordinance or direction of said city, or any grading done whatever, and that the lots of said plaintiff hereinbefore described were neither adjacent to or abutting upon the street graded,” which denials for the purpose of the action were admitted by the demurrer to be true, the petition states a cause of action.</p> <p>21 Constitutional Law: payment or taxes under protest: VOID TAX. While the legislature by general law may require a tax-payer, where a tax is levied in pursuance of law, and there are mere errors and irregularities in the proceedings, to pay such tax under protest, and recover the same back in an action at law, yet this will not apply to a tax which is absolutely void.</p> <p>3. Taxes: void tax : injunction. A court of equity will not, enjoin the collection of a tax tor mere errors or irregularities in, the proceedings of the taxing officers — the remedy at law being - ample in such eases; but where a tax is void, such tax-payer ■ may — if not guilty of laches — invoke the aid of such court to . protect his right's.</p> <p>4. Constitutional Law: title to acts. Under the title of.' “An act to incorporate cities of the first class, and regulating-their duties, powers, and government,” a provision declaring-that, “no court or judge shall grant any injunction to restrain the levy, enforcement, or collection of any special tax or assessment, or any part thereof, made or contemplated being made to . pay the cost of any improvement,” etc., is not within the title of the act, and is void. Rolmberg v. Rauclc, 16 Neb., 337.</p>

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

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

<p>1. Insurance Companies: foreign companies: deposits. Under sections 20 and 23 of the Compiled Statutes of 1887, Ch. 43, a foreign insurance company,' to be authorized to transact business in this state, must be possessed of at least $200,000 of actual paid-up capital, exclusive of any assets of such company as shall be deposited in any other state or territory for the special benefit or security of the insured therein, and must deposit in some one ■ of the United States or territories not less than 525,000 for the special benefit of persons insured therein in such company.</p> <p>2. -: -: duty OF auditor. The auditor of public accounts is clothed with authority to issue certificates to foreign insurance companies to transact business in this state, and it is his duty to issue certificates to none but solvent companies, which have complied with the statute of this state in all respects, and his action in the premises will not be controlled by mandamus unless there is a willful disregard of duty.</p>

<p>Error to the district court for Johnson county. Tried below before Broady, J.</p> <p>cited: Kansas Mnfg. Co. v. Gandy, 11 Neb., 451, 452. Herman on Chattel Mort., 125. Jewett v. Preston, 27 Me., 400. Bingham v. Kimball, 17 Ind., 396. Jones •on Mortgages, Sec. 615. Brandt on Suretyship, Secs. 9 to 21. Davidson v. King, 51 Ind., 224. Crossan v. May, <68 Ind., *242. Favorite v. Stidham, 84 Ind., 426. Savings Bank v. Coleord, 15 N. H., 119. Ransom v. Sehmela, 13 Neb., 76.</p> <p>cited: 2 Parsons on Cont., 6. Kelsey v. ELibbs, 13 O. S., 352. Bridges v. Blake, 106 Ind., 332. Churahill v. Bradley, 58 Vt., 403. Sexton v. Wheaton, ■8 Wheat., 250.</p>

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

<p>1. Specific Performance. On the 31st day of July, 1886, G. purchased from T. a city lot, and took a receipt for $50, advanced as part payment of the purchase price, which was $1,800; the terms being that $1,000 cash should be paid on delivery of a ■deed, G. to assume the payment of a mortgage of $750; the receipt containing a stipulation that, “ If finaL payment is not made within twenty days, all rights are to be forfeited.” Possession was not taken by the vendee. At the expiration of the twenty days T. tendered to G. a warranty deed, and demanded payment, which was refused, the reason assigned being that one C. had instituted against T. an action for the specific performance of a contract of sale made on the 9th day of August following the date of the contract made between the parties, but which ' sale was shown to have been made by an agent, without authority, and of which G. had notice. On the twenty-third of June, 1887, G. filed his answer and cross-bill in the suit of C. against T., by which he sought a specific performance and conveyance of the property. In the meantime the property had greatly increased in value, owing to the construction of a cable road in an adjoining street. It was Held, That time was of the essence of the contract, and that 6. could not enforce it.</p> <p>2. -: rescission. In such case the fact that an action had been instituted against the vendor for the purpose of enforcing a contract of sale, which was known to the vendee to be void, and could not he enforced, would not relieve the vendee from the performance of the contract on his part, when demanded by the vendor, and his refusal so to do would be a rescission of the contract on his part.</p>

<p>Q.UA5RE submitted by the legislature.</p> <p>cited: Hollingsworth v. Virginia, 3 Dallas Report, 378. Jamison on Constitutional Conventions, 4th Ed., 588. Green v. Weller, 32 Miss., 650. Koehler v. Hill, 60 Iowa, 543. Prohibitory Amendment Cases, 24 Kas., 700. State, ex rel. Hudd, v. Timme, 54 Wis., 318.</p> <p>cited : Hatch v. Stoneman, 66 Cal., 634. Jamison on Constitutional Conventions, Sec. 538. Koehler & Jjange v. Hill, 60 Iowa, 1883, 543. Warren v. Mayor, etc., 2 Gray, 84. Allen v. Louisiana, 103 U. S., 84.</p>