Volume 27 — Nebraska Reports

<p>1. Homestead. Where a homestead was selected or . severed from the separate property, of the husband, and at the time of his death he resided upon it with his family, the title thereto vested in his wife during her life, exempt from the payment of any debt or liability existing against either the husband or wife at the time of the death of the husband, except such as were valid liens as against the husband at the time of his death.</p> <p>2. -. In such case neither the life estate vested in the wife; nor the remainder vested in the heirs of the decedent or wife, would be liable for the debts of either husband or wife existing at the time of the death of the husband; and this would be the case whether they occupied the property as a homestead or not, the exempt quality of the property not depending upon such occupancy.</p>

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

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

<p>Trial: Evidence: Presumption. The cause was tried ts the district court on conflicting evidence. All presumptions being in favor of the findings and judgment, and no reason being shown why the rule should not be applied to this case, the judgment ■ is aflirmed.</p>

<p>Error to the district court for Douglas county. Tried below before Wakeley, J.</p> <p>cited: Armstrong v. Morrill, 14 Wall., 121,145,146 ; 3 Washburn on Real Property, 5th Ed., 148; Sedgwick & Wait on Trial of Title, 2d Ed., sec. 746; Wood on Limitations, p 577.</p> <p>cited: Am. and Eug. Encyc. of Law, vol. 1, p. 273; Parsons v. Viets, 9 S. W. Rep., 908.</p>

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

<p>Appeal from the district court of Otoe county. Heard below before Chapman, J.</p> <p>cited: Doolittle v. Tice, 41 Barb., 181; Wood on Limitation of Actions, 514, sec. 257; Gatling v. Lane, 17 Neb., 83.</p> <p>cited: Horbaeh v. Miller, 4 Neb., 47; Gatling v. Lane, 17 Id., 79; Haywoodv. Thomas, Id., 240; Pettit v. Blade, 13 Id., 152; Stettnisehe v. Lamb, 18 Id., 626.</p>

<p>1. Criminal Law: Civil Liability. A village has authority to levy a reasonable occupation tax which conforms to the requirements of the constitution and. statute; but such tax is a mere civil liability to be collected by levy and sale of property and not by arrest and imprisonment.</p> <p>2. -: License: Takes. Where it is necessary to license a traffic — as the sale of intoxicating liquors — or a particular kindof business which if not licensed and regulated may be used to defraud individuals or the public, the right to punish by imprisonment for a failure to pay the license fee and take out license is unquestioned, because such power is necessary for the preservation of order and welfare of society, but this power does not apply to a mere occupation tax.</p>

<p>1. Practice: Demurrer. To obtain tbe review of a decision sustaining or overruling a demurrer, tbe party must suffer a judgment in chief to be rendered on tbe demurrer; if he answers over and goes to trial upon the merits, be waives tbe demurrer and cannot assign the judgment upon the demurrer as error. (Poltinger v. Garrison, 3 Neb., 221, and cases cited in the opinion.)</p> <p>2. The evidence examined, and held, to sustain the verdict.</p>

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

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

<p>1. Garnishment. An attaching creditor has no greater right» against the garnishee than were possessed by the defendant in the action, therefore where a debt has been assigned in good faith for a valuable consideration before the notice to the garnishee, the assignee will be protected; and if after a garnishee has answered and before judgment he is notified by the assignee,, of the assignment of the claim to him before the service of no-. tice, the garnishee should at onee bring the matter to the attention of the court by filing a supplemental answer. A garnishee who before answer has notice that the defendant in the action had assigned the debt to another before the notice of garnishment was served must state that fact in his answer to be protected from an action by the assignee of the debt.</p> <p>2. Practice. Where the controlling facts in a case do not sustain the judgment, it will be set aside.</p>

<p>1. Partnership. An ostensible partner retiring from a firm must give notice of his retirement or he will be liable to creditors of the continuing firm or partner, who either carries on the business, or is charged with the duty of liquidating the business of the partnership.</p> <p>2. -: dissolution. To affect the rights of one dealing with a partnership firm, actual notice of its dissolution must be brought home to him. ( Johnson v. Totten, 3 Cal., 343.)</p>

<p>Error to the district court for Saunders county. Tried below before Marshall, J.</p> <p>cited: Clark v. Fislm’, 1 Paige Ch. (N. Y.), 171 [19 Am. Dec., 402]; Obis v. Thom, 23 Ala., 469 [58 Am. Dec., 303]; Smith v. State, 55 Ala., 1; Cook v. State, 4 Zab. (N. J.), 852; Van Zandt v. Ins. Co., 55 N. Y., 179; Conners v. State, 47 Wis., 523.</p>

<p>1. Replevin: Damages. Where a sheriff levied an execution upon a stock of drugs contained in a drug store, and took them into his possession as the property of A, and they were replevied from the sheriff by B, who claimed to be the owner, and upon a jury trial the drugs were found to be the property of B, the trial jury, in estimating the damages due to B by reason of illegal deteution of ^he property by the sheriff, will not be confined to the net income of the store at or about the time of the levy. They may take into consideration all other elements of damage shown upon the trial, such as the closing of the store, the handling of the goods in making the inventories, etc., and in such case, where about one week of time intervened between the levy by the sheriff and the restoration of the goods to the plaintiff in the action, by the coroner, under the proceeding in replevin, a verdict for one hundred and fifty dollars damages was not excessive.</p> <p>2. -: -. In an action of replevin against the sheriff by a third party, and stranger to the execution, who had the goods in his possession at the time of the levy by the sheriff, and where the sheriff justifies under such execution in order to maintain his possession, he must show by competent proof his authority for such seizure. In case he fails to do so, the plaintiff in the action will be entitled to judgment for the possession of the goods and his damages. ‘</p>

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

<p>1. Practice: Appeabance. When a defendant appears specially for the purpose of challenging the jurisdiction of the court over him on the grounds of a defect in the service of summons, if the objection is overruled, an answer to the merits of the case without further objection to the jurisdiction, followed by a trial thereon, will be deemed a general appearance, and the objection waived.</p> <p>2. Action Quantum Meruit: Evidence. In an action upon the quantum, meruit for compensation for services performed upon the request of the defendant, and which employment was denied by such defendant, it was not error for the trial court to permit the plaintiff to testify that the defendant represented that the services would be worth, and that he would guarantee the payment of that sum, etc.; theoffer as to pricenot havingbeen accepted by the plaintiff. Such evidence would not establish an express contract as to the price to be paid.</p> <p>3. -: -. In such case, when the defendant alleged in his answer that the plaintiff’s services were rendered exclusively for ' the water works company, and that he hail been fully paid therefor, it was held not erroneous for the trial court to exclude from the consideration of the jury a receipt for ¡51,000, executed by the plaintiff to the water works company, there being no proof that the employment, nor payment, by the water works company was intended to cover the whole time of the plaintiff and his efforts on behalf of the defendant in securing the adop- . tion of his pump.</p> <p>4. “Instructions: Exceptions. A general exception to instructions given is insufficient. Each specific instruction which is claimed to be erroneous must be distinctly pointed out and specifically excepted to.”.(ErooJcs v. Butcher, 22 Neb., 644.)</p> <p>5. Evidence examined, and held, sufficient to sustain the verdict.</p>

<p>1. Fugitives From Justice. Section 330, d seq., of the Criminal Code contemplates that the charge of the crime against the person to be arrested and delivered up must be made in the state where the offense was committed. The charge must be to some court, magistrate or officer, in the form of an indictment, complaint, or other accusation known to the laws of such state or territory, and be pending; and a complaint made before a magistrate in this state which fails to allege that such charge is pending against the accused in the state where it is alleged the offense was committed, will not confer jurisdiction on such magistrate.</p> <p>2. False Imprisonment: Evidence. In an action for false imprisonment against three defendants, one of whom had procured the issuance, by one of the others, who was a justice of the peace, of a warrant, by virtue of which the other, who was a constable, had arrested and imprisoned the plaintiff, held, that the warrant and complaint, on which it was issued, were properly admitted in evidence.</p> <p>3. -: -. In the action described in the second clause of this syllabus a part of the damages sustained by the plaintiff consisted of the fees and expenses of a proceeding in habeas corpus in the county court by which he was released from such imprisonment : Held, That the docket of the county court, containing the entries of such proceedings, was properly admitted in evidence.</p>

<p>1. Trial: Evidence: Books oe Science. A table showing the expectancy of life in healthy persons of different ages, printed in a law book of general acceptance and authority in the courts of this state, as the Carlisle tables of expectancy, is admissible in evidence in cases where such evidence is applicable.</p> <p>2. -:-: Error Without Prejudice. In an action by a widow on behalf of herself and infant child against defendants, saloon keepers and their sureties, the cause of action being the selling of intoxicating liquors to the husband and father of the plaintiff and her said child, by reason of the drinking of which he became and was intoxicated, and that while so intoxicated and endeavoring to board a moving freight train on a railroad be was run over by the cars and killed, on the trial there was introduced in evidence an excerpt in the form of a table of expectation of life, but which contained no intrinsic evidence of authenticity: S'éld, That while said excerpt was erroneously admitted in evidence, as it was more favorable to the party-excepting than was the Carlisle table of expectation as contained in a law book which was properly admitted in evidence, it was error without prejudice to the plaintiff in error.</p> <p>3. Evidence: Error. To entitle a plaintiff in error to a review of the ruling of the court below on the rejection of testimony it is required that the party complaining shall have made an offer of the testimony, clearly indicating what he expects to prove by the witness in response to the question propounded and overruled by the court. (Yates v. Kinney, 25 Neb., 120, and cases cited.)</p> <p>4. Instructions given and refused examined, and held, no reversible error in their giving or refusal.</p> <p>5. The evidence considered, and held, to sustain the verdict.</p>

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

<p>Error to the district court for Hitchcock county. Tried below before Gaslin, J.</p> <p>cited: Schouler, Executors and Administrators, sections 325, 326, 339; Lindley on Partnership (Ewell), p. 1044-1047; Hoyt v. Sprague, 12 Chicago Legal News, 25; Sage v. Woodin, 66 N. Y., 578.</p> <p>cited: Maxwell’s PI. & Pr., 32; Trowbridge v. G'oss, 7 N. E. Rep., 347.</p>

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

<p>iCreditor’sBill: Husband and Wife. In an action in the nature of a creditor’s bill, to set aside a deed made to the wife of a judgment debtor, by the vendor of real estate, in order that the real estate might be applied to the payment of the plaintiffs’ j udgment, there was sufficient evidence presented to the trial court to sustain the finding that the husband, while in a prosperous financial condition, caused to be conveyed to his wife one hundred and sixty acres of land in the county of B., which conveyance was made in the year 1883. In the year 1886 it appears that the wife sold the real estate, realizing by such sale a large increase upon the amount invested at the time of the purchase; that she permitted the husband to take the money received from the sale and apply it to the payment of the indebtedness of a partnership of which the husband was a member; that soon after the partnership failed and became insolvent, when the husband repaid to his wife out of the partnership assets the money which he had received from her, and which had been devoted to the use of the partnership; that with this money, by direction of the wife, the husband purchased the real estate in controversy, and that they had borrowed a large sum of money upon the real estate, which, together with the money received from the husband, was applied to the construction of the house thereon, rendering the property valuable; that the money expended in purchasing the property and in constructing the building thereon was equal to the amount borrowed upon the credit of the property added to the amount formerly loaned by the husband to the wife. In such case the decree of the district court dismissing the creditor’s bill was affirmed.</p>

<p>Error to the district court for Hamilton county. Tried below before Normal, J.</p> <p>cited: Schultz v. McLean, 18 Pac. Rep. (Cal.), 775; Gage v. Mayer, 7 N. E. Rep. (111.), 97; Jones v. Null, 9 Neb., 254; Smith v. Buse et al, 28 N. W. Rep. (Minn.), 220; Meskimenv. Day, 10 Pac. Rep. (Kan.), 14; Brown v. Swift, 1 S. W. Rep. (Ky.), 474; Gale v. Shillock, 29 N. W. Rep. (Dak.), 661; Taylor v. Courtnay, 15 Neb., 190.</p> <p>cited: Freeman on Judgments, secs. 126-135 ; Hardy v. Miller, 11 Neb., 397; McPherson v. Bank, 12 Id., 205; McKeighan v. Hopkins, 14 Id., 361.</p>

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

<p>1. Account Stated: Sale of Liquors: Evidence. In an action by R. and D. against G-. and J., on an account stated, -which account consisted of five bills of goods sold and delivered, amounting in the aggregate to $568.40, the defendants answered, first, by a general denial, and second, “ for a counter-claim that the amount claimed to be due of the accouut set out by plaintiffs is for in- ■ toxicating liquors sold by plaintiffs to defendants between the 20th of October, 1883, and July 13, 1885; that on and between said dates plaintiffs sold to defendants intoxicating liquors to the amount of $2,453.58, and that all the other goods sold during said period by plaintiffs to defendants amounted to only $150; and said defendants have, on and between December 19, 1883, and March 13, 1886, paid to plaintiffs various sums of mon^y, amounting in all to $1,710.63, which was paid for intoxicating liquors, except $150, and that all the time between and including the said dates plaintiffs were engaged in the business of wholesale dealers in malt, spirituous, and vinous liquors, in the city of Omaha, Nebraska, without having taken out a license for such sales,” etc. Held, that such answer amounted to a plea of confession and avoidance, and rendered proof of their account or of the statement thereof by the plaintiffs unnecessary; and upon proof by the defendants of the matter pleaded in avoidance would amount to a full defense.</p> <p>2. Liquors: Sale. A liquor dealer must have a license from the city or county in which his store is kept. With such license he may send out agents and take orders in any part of the state, for goods to be selected and forwarded from the stock kept in such store, and is not required to obtain a license from the authorities of each city or county in which contracts are made therefor by such agent. (Sang v. Gillelt, 14 Kan., 140.)</p> <p>3. -:--: Evidence. The defendants having pleaded in avoidance of the action that the intoxicating liquors, for which in part the action was brought, were sold by the plaintiffs without first having obtained license therefor, it was incumbent upon them to prove prima facie that, at the time of such sales pro ianto, the plaintiffs were without such license; an instruction to that effect, held, properly given.</p> <p>4. -: -: Instructions. The third paragraph of instructions, given by the court on its own motion, and the first and third instructions asked by the defendants, and refused by the court, examined and held, properly given and refused.</p> <p>5. Instructions. An instruction or a series of instructions headed “Instructions given by the court on its own motion,” and so placed in the record as to be clearly separate and distinguishable from the instructions presented by the parties, held, a sufficient compliance with the terms of the act of February 25, 1875.</p>

<p>Practice. No question of law is involved in the case. The judgment of the district court is found to be sustained, in part, by the evidence in support of some of the items charged in the petition of defendant in error. As to other items charged, the judgment of the district court is not sustained by sufficient evidence and is reversed unless defendant in error remits $332 therefrom within sixty days, in which case the judgment of the district court is affirmed for $678, with legal interest from its date. The costs in this court, in case such remittitur is filed, will be equally divided between the parties.</p>

<p>Further consideration of case reported in 25 Neb., 313.</p>

<p>1. Verdict. The evidence examined, and held, to sustain the verdict.</p> <p>2. Instructions given and refused, the giving and refusal of which are complained of, examined, and held, properly given, and refused.</p>

<p>1. Affidavits used in the district court will not be considered in this court in error proceeding^, unless made part of the record, which can ordinarily be done only by means of a bill of exceptions. (Walker v. Lutz, 14 Neb., 274.)</p> <p>2. Conversion: Damages. In an action for the wrongful taking and conversion of goods, the fair market value of the goods at the time and place of the taking is, ordinarily, the true measure of damages. This is so where the defendant is a sheriff and seeks to justify the taking under an execution; and where the good faith of such officer is undoubted.</p> <p>3. An Instruction asked for by defendant, held, properly refused,. as not applicable to, nor based upon, the evidence in the case.</p> <p>4. Evidence. The reception in evidence of the replevin bond in another action, and the overruling of defendant’s objection to' “ any evidence regarding such replevin bond,” held, no error.</p> <p>5.--. The rejection of the schedule of appraisement of the property replevied in the former case, as well as of oral testimony of the value of said goods as fixed by the appraisers, when offered in evidence, held, no error.</p> <p>6. The damages given by the verdict are not excessive.</p>

<p>Error to the district court for Fillmore county. Tried below before Morris, J.</p> <p>cited: Parchen v. Anderson, 5 Pac. Rep., 588; Gulley v. Edwards, 51 Am. Rep., 614; Pomeroy’s Equity, vol. 1, sec. 105; 1 Perry on Trusts, sec. 166; Gooh v. Tullís, 18 Wall., 332.</p> <p>Williams, cited:. Weil v. Lankins, 3 Neb., 387; Weinland v. Cochran, 9 Id., 482; Crowell v. Horacek, 12 Id., 625.</p>

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

<p>Partnership: Contract : Construction. Where the terms of a written agreement of partnership are somewhat vague and ambiguous, the practical construction of the contract of the partees themselves is entitled to great, if not controlling, influence.</p>

<p>Error to the district court for Hayes county. Tried below before Cochran, J.</p> <p>cited : Wells on Replevin, sec. 94 ; Cassel v. Western Stage Co., 12 la., 48 ; Kay v. Noll,»20 Neb., 380.</p>

<p>1. Mortgage: Consideration. In aa action in equity to cancel a note and mortgage upon the ground that they had been given to indemnify the mortgagee as surety on an appeal bond, and that the surety had been required to pay nothing thereon, the defendant answered by cross-petition praying for the foreclosure of the mortgage, and a decree was rendered in his favor for the amount claimed. It appeared from the evidence that $90 had been included in the note and mortgage to indemnify the mortgagee against possible damages in signing an appeal bond, and that he had suffered no loss thereby. Held, That the decree should be reduced $90 with 12 per cent interest thereon, that being the rate allowed in the decree.</p> <p>2. Evidence. Held, That the proof failed to show that the plaintiff was entitled to protection as a Iona fide purchaser of the note before maturity.</p>

<p>Error to the district court for Webster county. Tried below before Gaslin, J.</p> <p>cited : Maxwell’s PI. and Pr., 4th Ed., 121, 146 ; Hedges v. Roach, 16 Neb., 674; JEtna Ins. Co. v. Baker, 71 Ind., 102; Aurora City v. West, 7 Wall., 93; Cooke v. Graham’s Admr., 3 Crauch (U. S.), 235; Fox v. Wray, 56 Ind., 426 ; Wood on Limitation of Actions, p. 128, sec. 64; p. 139, sec. 68; p. 172, sec. 71; Bell v. Morrison, 1 Pet. (U. S.), 361; Fort Scott v. Hickman, 112 U. S., 150; Mayberry v. Willoughby,■ 5 Neb., 372.</p>

<p>Appeal from the district court for Lancaster county. Heard below before Chapman, J.</p> <p>cited : Freeman on Judgments, sec. 819 ; Bigelow on Estoppel p. 45 ; Truesdell v. Searles, 104 N. Y., 164; Clemens v. Brillhart, 17 Neb., 336; Ransom v. Schmela, 13 Id., 77; Jones on Chattel Mortgages, 245-^Bispham’s Eq. Jur., 52; Estes v. Wilcox', 67 N. Y. 264; Rogers on Expert Testimony, sec. 135, p. 186.</p> <p>cited: Wait on Fraudulent Conveyances, secs. 26, 27, 28, 44; Lalhrop v. Bampton, 31 Cal., 17; Clements v. Moore, 6 Wall., 315, 316; Phipps v. Sedgwick, 95 U. S., 3; Story’s Eq. Jur., sec. 1258; Perry on Trusts, secs. 217, 828, 829 ; Winchester v. Charter, 102 Mass., 275, 276; Kempner v. Churchill, 8 Wall., 364.</p>

. Error to the district court for Hamilton county. Tried below before Norvau, J. The testimony offered by defendant contradicting their own witness Updike was inapplicable except for impeachment, and inadmissible. (Hooper v. Browning, 19 Neb., 427-8; Strader v. White, 2- Id., 359, 360; 1 Green Ev. (10th Ed.), sec. 442.) Defendant seeks to enforce the penalty in the case of notes made more than a year before cause of action accrued, and is barred by sec. 13 of the Code.

Tried below before Wakeley, J. The wife has a legal right to support from the husband. (Schouler, Husband and Wife, sec. 66.) Failure to support is a wrong for which there should be a remedy. Courts of equity have taken jurisdiction to decree alimony independent of a suit for divorce. (Butler v. Butler, 4 Litt. (Ky.), 202; Galland v. Gcdland, 38 Cal., 265; Graves v. Graves, 36 la., 310; Garland v. Garland, 50 Miss., 694.

Heard below before Norval, J. Defendant should not have been granted affirmative relief. (Code, secs. 429, 262, taken from Ohio Code; Klonne v. JBradstreet, 7 O. S., 326 ; Boone, Code Pleading, secs. 101, 102.) Some of the findings below are clearly wrong and should be set aside. {Mfg.

Tried below before Gaslin, J. The record was introduced in evidence without proper foundation, as required by sec. 13, ch. 73, Comp. Stats., 1887. The evidence fails to establish a subsisting legal title in the Franklin Town Company, such as is necessary when defendant in ejectment sets up an outstanding legal title. {Jackson v. Hudson, 3 Johns., 375; 3 Am. Dec., 501; Bennett v. Horr, 47 Mich., 221; McDonald v. Schneider, 27 Mo., 405; Sutton v. McLeod, 29 Ga., 589).

Heard below before Morris, J. The trial court’s construction of the lease, restricting appellants’ right to the natural flowage, involves a contradiction in the terms, and should be rejected. ' (Bishop on Contracts, sec. 384.) Every lease implies a covenant for quiet enjoyment, and landlord may not enter without lessee’s consent. (Sherman v. Williams, 113 Mass., 481; Mayor v. Mabie, 13 N. Y., 157; Dexter v. Manley, 4 Cush.

<p>The former decision in this case reported in 23 Neb., 371, adhered to.</p>

Appeals from the district court for Wayne county. Heard below before Norris, J. Misrepresentations were made by appellee, and whether fraudulent or not, if acted upon by another to his prejudice, are grounds of relief in equity, (Morgan v. Hardy, 16 Neb., 427). Mutuality of obligation is a necessary element in contract. (State v. Barker, 4 Kas., 380). As to the requisites of a decree of specific performance; Pomeroy, Eq. Jur., Vol. 3, Sec. 1,405 N. 1.

'Tried below before Powers, J. There is no proof that R. E. Stevenson acted with knowledge, and in this respect the case differs from Peckinbaugh v. Quillin, 12 Neb., 586, and McCormick v. Stevenson, 13 Id., 70. The witness Angeline Bromley is disqualified by sec. 329 of the Code. A degree of interest no greater has frequently been held sufficient to exclude-(Ransom v. Schmela, 13 Neb., 73 : Wamsley v. Crook, 3 Id., 344; 1 Green.

<p>Reese, Ch. J., dissenting.</p> <p>Rehearing of the case reported in 25 Neb., 372.</p>

Tried below before Norval, J. The petition is insufficient, and the verdict contrary to law. Something must be done which would give the right of action independent of the conspiracy, to make the latter the subject of a civil action. (Cooley on Torts, 125, and cases cited; Bailey, Onus Probandi, 49.) And the plaintiff must show actual damage as a result thereof. (Kimball v. Harman, 34 Md., 407; 6 Am.

Tried below before Gaslin, J. A county is a gitast-corporation and through .its board may employ necessary counsel. (Platte Co. v. Gerrard, 12 Neb., 251; Hammond v. Meadville, 6 Id., 227.) There may be implied contracts with corporations as with individuals.

<p>Attachment: Dissolution foe Misjoinder of Causes. A cause of action in a petition upon a debt not fraudulently contracted, if coupled -with a cause of action upon a debt which was fraudulently contracted, and an order of attachment covering both counts issued upon an affidavit alleging that “ said defendant fraudulently contracted the debt and incurred the obligation for which this suit is brought,” held, to vitiate such order of attachment and justify its discharge. (Mayer v. Zingre, 18 Neb., 458.)</p>

Tried below before Broady, J. Agency to receive a check payable to order, implies no authority to endorse it in the principal’s náme. (Dodge v. Bank, 20 O. S., 234 [30 O. S., 1].) To justify a refusal to pay money on the ground of former payment, bank must show that its payee was authorized to receive payment. (Citizens’ Bank v. Importers’, eto., Bank, Nyi & Corp., Law Journal, Vol. IV, No. 23, p. 540.) The depositions were immaterial and irrelevant.

<p>1. Pleading, In an action by M. against B., the petition alleged that defendant sold and endorsed, without recourse, to plaintiff a promissory note, past due, secured by mortgage on land and chattels; that upon suit to collect said note, the makers answered, proving that, except as to an insignificant portion of the consideration, the note was given for usurious interest in which the plaintiff lost the amount thereof, etc. The defendant answered that at the time of the sale and endorsement of the note by him to plaintiff, he informed the plaintiff of each and every defect therein, etc. The plaintiff moved for an order requiring the defendant to make his answer specific; that he state in what manner he informed the plaintiff of the defects in said note, and bf the defenses thereto, and for a further order requiring him to separate his second paragraph, and show what portion thereof is relied upon as a defense, and what portion is intended as affirmative relief, set-off, or counter claim against the plaintiff; which motion was overruled; 7ield, not reversible error.</p> <p>2. Trial: Cross-Examination. Held, That when a party on cross-examination asks a witness an immaterial or irrelevant question, he is concluded by the answer, and will not be permitted to call a witness to contradict i t.</p> <p>3. --: Failure to Read Instructions to Jury. The statute provides that the court must read over all instructions which it intends to give, and none others, to the jury, etc. Held, That the refusal or failure hy the court to read to the j ury an instruction which it announces as given, and writes thereon as given, and files as such, is reversible error.</p>

Heard below before Norris, J. The petition is as follows : “That on or about the-day of April, A. D. 1881, the above named J. R. Morris, a regular authorized and licensed minister of the Baptist faith, together with the other plaintiffs above named and numerous other parties, all residents of the village of Battle Creek, being desirous of having a place of religious worship erected in the village of Battle Creek, entered into an agreement whereby a church building was to be…

Tried below before Chapman, J. The constable’s return showing no service because of non-payment of fees was sufficient and justifiable. (Murfree on Sheriffs, sec. 1072; Jones v. Qupton, 65 N. C., 48; Carlisle v. Soule, 44 Vt., 265; Adams v. Dinkgrave, 26 La. Ann., 626 ; Atkinson v. Hulse, 30 Ark., 760.) There is a plain distinction between felonies and misdemeanors. The latter are not covered by the Criminal Code in providing for payment of costs.

Heard below before Appelget, J. Defendants Easterday and Pella are strangers to the contract and cannot plead usury. (Sternbergv. Callanan, 14 la., 255; Drake v. Chandler, 18 Gratt. [Va.], 909; Stephens v. Muir, 8 Ind., 352; Huston v. Stringham, 21 la., 36; Farmers’, ete., Bank v. Kimmel, 1 Mich., 84; Loomis v. Eaton, 32 Conn., 550; Ransom v. Hays, 39 Mo., 445.) Defendant Dunlap is estopped'to set up usury as a defense. (,Mechanics’ Bank v. Townsend, 29 Barb. [N. Y.], 569.

Tried below before Marshall, J. The place was dangerous and defendant in error had knowledge of and could have avoided it. He was guilty of contributory negligence and cannot recover. (City of Erie v. Magill, 101 Pa.

Heard below before Chapman, J. Even if the affidavit is defective, objection to service of process cannot be considered after confirmation. (Gilbert v. Brown, 9 Neb., 94.) The same rules apply to an attachment sale as to an execution sale. (Helmer v. Rehm, 14 Neb., 220.) Confirmation of sale cures all irregularities in-the proceedings. (MoKeighan v. Hopkins, 19 Neb., 40; O’Brien v. Gaslin, 20 Neb.', 350.) Order of confirmation is final and not subject to collateral attack.

<p>1. Evidence examined, and held, sufficient to sustain the verdict of the jury.</p>

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

<p>Error to the district court for Holt county. Tried below before Kjnkai.d, J.</p> <p>cited: Code, secs. 30, 45; Rogers v. Hotel Co., 4 Neb., 54; Mills v. Murry, 1 Id., 327; McWilliams v. Bridges, 7 Id., 419; Pomeroy, Remedies, etc., 124-8, 135; Allen v. Miller, 11 O. S., 374; Smith v. It. Co., 23 Wis., 267; 1 Randolph, Commercial Paper, secs. Ill, 114; Maupin v. MoCormioh, 2 Bush [Ky.], 206; Sea v. Glover, 1 Bradw. [111. App.], 335; People v. Bagnell, 31 Cal., 409; Gehr v. Hagerman, 26 111., 438; Coleman v. Roberts, 1 Houck [Mo.], 97; Hiohey v. Ryan, 15 Mo., 63; Russ v. Steamboat, 9 Iowa, 375 ; Farquhar v. Dallas, 20 Tex., 200; Doev. Thomason, 11 B. Mon. [Ky.], 235. .</p>

<p>1. Tax Title: Limitations. “An action to foreclose a tax lien on real estate may be brought on a tax certificate when it is alleged in the petition that a deed would be invalid if issued. In such case a cause of action would accrue at the expiration of the time within which the land owner might redeem, and suit might be brought at any time within five years thereafter.” (Parker v. Maiheson, 21 Neb., 546.)</p> <p>2. -: -: Case Stated. A purchased real estate at tax sale on the 18th day of November, 1875; the property was not redeemed by the land owner within the two years allowed for redemption. No deed was taken by the purchaser at the tax sale. On the 18th day of April, 1883, and more than five years after the expiration of the time for redemption, plaintiff commenced this action to foreclose the tax lien. Held, That the cause of action was barred by limitation. (See Parker v. Matheson, supra.)</p>

Heard below before Broady, J. Section 144, chapter 77, Compiled Statutes, is inapplicable here (1) because it refers to taxes, while this is a proceeding to restrain the collection of an assessment, and there is a plain distinction between taxes and assessments (Hanscom v. Omaha, 11 Neb., 41; Opinion of Judges, 58 Me., 591; ITilbish v. Catherman, 64 Pa.

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

Tried below before Chapman, J. That construction of a contract is to be adopted which will support rather than avoid it. (Bigelow v. Benedict, 70 N. Y., 202; Clay v. Allen, 63 Miss., 426.) The burden of proving the contract illegal is upon defendants (Irwin v. Williar, 110 U. S., 499; Coahrell v. Thompson, 85 Mo.,. 510); and there must be more thau a mere suspicion of illegality.

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

Tried below before Gaslin, J. Under township organization, the supervisor is ex-offiaio overseer of the poor (Comp. Stats. 1887, ch. 18, sec. 37); and county is liable only when it has a lawful poorhouse.

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

Tried below before Kinkaid, J. The overruling of the motion for continuance by the county court was an abuse of discretion, which is sufficient ground for a new trial. [Ingalls v. Noble, 14 Neb., 272; Singer Mfg. Co. v. MoAllister, 22 Id., 362.) The affidavit was sufficient, because it stated the evidence intended under the rule in Jamesonv. Butler, 1 Neb., 118; Williamsv.

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

Heard below before Field, J. Appellant had a right to adopt its present corporate name and to be protected in its exclusive use even though a part thereof consisted of the geographical word “Nebraska.” (Newby v. R. Co., Heady [U. S. C. C.], 609.) Eegarding tiio name simply as á trade-mark, appellant has this right.

Tried below before Powers, J. A misrepresentation as to the market value of property is not actionable. (Chrysler v: Canaday, 90 N. Y., 272; Hartman v. Flaharty,-SO Ind., 472; King v. Mills, 10 Allen [Mass.], 548.) Under the circumstances, it was proper on cross-examination to show plaintiff’s experience in the real estate business and his knowledge of the value of lands.

Tried below before Cochran, J. The garnishment proceeding was the only method of appropriating the surplus value of the goods in possession of the mortgagees. [Burnham v'. Doolittle, 14 Neb., 214; Carte v. Fenstermaher, 14 O. S., 457); and it enabled testimony to be introduced tending to show fraud, which in a mere attachment would not have been admissible. Conduct of parties may be shown, to establish fraudulent intent. (Wait, Fraud.

• Error to the district court for Holt county. Tried below before Norris, J. The contract is not divisible, and an act which avoids it as to part of the property avoids it as to all. (1 Wood, Fire Ins., 384; May, Ins., sec. 277; Garver v. Ins. Go., 69 la., 202; Plath v. Ins. Co., 23 Minn., 479; Kelly v. Ins. Co., 6 Atl. Rep., 740; Gottsman v. Ins. Co., 56 Pa. St., 210; Trustees v. Williamson, 26 Id., 196; Leev. Ins.

Tried below before Marshall, J. The alleged parol contract was not complete in itself, as the policy was to be issued in order to fulfill it. (Fish v. Cottenet, 44 N. Y., 538; Ellis v. Ins. Co., 50 Id., 402; Postv. Ins. Co., 43 Barb. [N. Y.], 361; Sunburn v. Ins. Co., 16 Gray [Mass.], 448; Ins. Co. v. Roessle, 1 Id., 336.) In case of a loss while the alleged parol contract remained executory the assured’s remedy would be in equity alone. (Ins.

<p>Error to the district court for Buffalo county. Tried below before Hamer, J.</p> <p>Mere voluntary dismissal of a criminal prosecution is not prima facie evidence of malice. (Adams v. Lisher, 3 Blackf. [Ind.], 445; Lindsay v. Lamed, 17 Mass., 190; Ivers v. Bartholomew, 9 Conn., 309; Kidder v. JParhhurst, 3 Allen [Mass.], 393; Cooley on Torts, 185.) The question of probable cause is one of law and fact, and should not have been submitted to the jury except as to the facts. (Turner v. O’Brien, 5 Neb., 547; .Boss v. Langworthy, 13 Id., 495; Boyd v.Oross, 35 Md., 194.)</p> <p>No exceptions were taken to the instructions below, and there is nothing for this court to review. In the Nebraska cases cited by counsel for plaintiff in error the instructions were too favorable to defendant, and the judgment was for that reason reversed. If the instructions in this ease are open to the objection urged by counsel for plaintiff in error, they would for that reason be clearly favorable to him and, if excepted to, would not warrant a reversal.</p>

Tried below before Gaslin, J. The act of a special agent outside the scope of his authority is void, unless ratified, but does not affect the validity of what he was authorized to do. (Davenport Savings Association v. Ins. Co., 16 la., 74; Bangor Boom Corporation v. Whiting, 29 Me., 123.) All persons are bound to inquire into the extent of a special agent’s powers.

Tried below before Kinkaid, J. The proof must correspond to the affidavit and writ (Wells on Replevin, sec. 182); and the latter must specify the property to be replevied. (Id., sec. 169; Welch v. Smith, 45 Cal., 230; Stevens v. Townsend, 1 Mich., 92; DeWitt v. Morris, 13 Wend., 456.) The description was insufficient to convey title and hence defective.

Tried below before Broady, J. The description “ The People’s Bank,” plaintiff, is not sufficient under our statute (Code, sec. 24; B. & M. R. Go. v. Dick, 7 Neb., 213); security for costs was not given as required, hence the court acquired no jurisdiction. (Id.; Code, sec. 26.) There was apparently no bill of particulars as required by sec. 1086 of the Code, and therefore no pleading sufficient to support a judgment. The court lost jurisdiction of the persons of defendants.

Tried below before Gaslin, J. A plat, when referred to in a deed, becomes a part thereof. (Washb. R. P., 5th ed., 459-60; Nieolinv. Sehneiderhcrn, 33 N. W. Rep., 33; Neioman v. Foster, 3 How. [Miss.], 383.) The field notes of the original survey are the best evidence of the boundary. (Rev. Stats. U. S., sec. 2396.) Defendant cannot be permitted to show that the river is not where the plat represents it. (Bates v. JR,.

Heard below before Norval, J. The consideration is inadequate and Mrs. Coon is not a bona fide purchaser. (Savage v. Hazard, 11 Neb., 323; Case v. Sawtelle, Id., 51.) Even though he pay a full consideration, the law will not protect a purchaser if the sale was made to hinder or defraud creditors. (Wake v. Griffin, 9 Neb., 52; Gragg v. Martin, 12 Allen [Mass.], 498; Bunn v. Ahl, 29 Pa.

<p>1. Liquors: Gift: Statutory Construction: Indictment. Where an indictment for the violation of section 11 of chapter 50 of the Compiled Statutes contains the charge that the person accused did on a certain day sell and give away intoxicating liquors, it was held that the words “ give away ” did not charge the offense of giving away upon a pretext under the provisions of the section, and that they were mere surplusage and to be ignored by tbe court to which the indictment was returned; also, that the language of the indictment did not necessarily charge the defendant with selling and giving away upon a pretext the particular liquor described in the indictment, and that the only office of the words “ give away ” in the indictment was in substance a charge of the delivery of the liquor sold.</p> <p>2. -: -. The mere giving away of intoxicating liquors when not upon a pretext or with any intention or purpose to violate the law is not necessarily a crime, without reference to the circumstances, condition, or necessity under which the gift was made.</p>

Tried below before Appelget, J. The agreement between Wright and Chamberlain, under which the latter’s interest in the suit arose, was champertous and void. (Backus v. Byron, 4 Mich., 535; Barker v. Barker, 14 Wis., 131*; Allard v. Lamirande, 29 Wis., 502; Wildey v. Grane, 63 Mich., 720; Crim. Code, sec. 159; Keyv. Vattier, 1 O., 142; Boev.

Tried below before Appelget, J. The law requiring an undertaking forms a part of the contract.'(Cutler v. Roberts, 7 Neb., 13.) The undertaking must be executed by one or more sureties. (Code, 926.) If plaintiff in attachment were not required to sign the undertaking but did so, his signature would be null; whereas when he does sign, he is held liable as principal.

<p>Motion to quash bill of exceptions.</p> <p>Cases cited by counsel are referred to in opinion.</p>

Tried below before Broady, J. Defendant in error not only did not accept but even declined the only offer made by the Crosses. The testimony shows that Ellis, through whom defendant claims the Crosses became indebted to him, was not a general agent and was not authorized to employ counsel. There is no precedent or rule of law under the facts by which defendant could become entitled to the possession of the warrant.

<p>Jurors: Competency: Challenge. Plaintiff in error was placed on trial upon an indictment for shooting one P. with the intent to kill him; a juror was called who, upon his voir dire examination, testified that he had such an opinion as to the guilt or innocence of the accused as would take considerable of evidence to remove; that if what he had heard was true, he was prejudiced; that he could not say whether he could sit as a fair and impartial juror and render an impartial verdict upon the evidence and law or not; that he had formed a pretty strong opinion about the case. It was held, that the juror was incompetent and that the decision of the district court in overruling a challenge to him for cause was prejudicial error. Held, also, that the fact that the juror was peremptorily challenged by plaintiff in error, did not cure the error and that he was entitled to a new trial.</p>

Tried below before Broady, J. Under statutes like ours the courts of various states have held that an administrator might maintain ejectment.

Tried . below before Broady, J. The burden was on plaintiff below to show the good faith of the transaction. (Fitzgerald v. Meyers, 25 Neb., 77.) There are no preponderating equities in favor of either party ” and the lien of the mortgages does not attach until delivery, which does not take place until acceptance. (Bank v. Morse, 73 la., 174.) The attachment was an equitable lien covering the surplus, to which mortgagees had no right.

Heard below before Broady, J. All money paid to protect the title was added to and barred only with the debt itself. (Southard v. Dorrington, 18 Neb., 122; Sehoenheit v. Nelson, 16 Id., 237; Miller v. Hurford, 11 Id.,. 385.) The principle is also applied to the case of a mortgagee purchasing an outstanding title. (Comstock v. Michael, 17 Neb., 300.) Taxes are not debts in the ordinary sense of the term.

Tried below before Chapman, J. Even if Winn’s claim be true, that the exaggeration was made to secure a more favorable settlement, the policy is void for breach of condition. (Sleeper v. Ins. Co., 56 N. H., 401; Weidev. Ins. Co., 1 Dill. [U: S. C. C.], 441; Geib v. Ins. Co., Id., 443; Ferriss v. Ins. Co., 1 Hill [N. Y.], 71; Wall v. Ins. Co., 51 Me., 32; Regnier v. Ins. Co., 12 La. [O. S.], 336; Lewis v. Ins. Co., 63 la., 193; Smith v. Ins.

Motion to modify decree. Proceedings to enforce usurious contracts are usually enjoined only if payment is made of amount due. (High, Inj., sec. 1116; Pom., Eq. Jur., sec. 937; Fanning v. Dunham, 5 Johns. Ch., 122, 146; Eiseman v. Gallagher, 24 Neb., 79.) The statute corresponding to ours was not enforced by the New York courts (Livingston v. Harris, 11 Wend. [N. Y.], 329); nor favored by the Minnesota court.

<p>Railroads: Eminent Domain : Damages. There is no question of law presented for decision, the only contention of plaintiff in error being that the verdict of the jury was not supported by the evidence. The oral evidence submitted to'the jury was conflicting, and the action being for damages to real estate by reason of the construction of a railroad thereon, the jury were sent to examine the premises. It was held, upon an examination of the evidence, that the verdict could not be set aside as unsupported thereby.</p>

Tried below before Field, J. Even had there been a promise to pay there was no consideration. (Nelson v. Boynton, 3 Mete. [Mass.], 396; Morrissey v. Kinsey, 16 Neb., 17; Langdon v. Richardson, 58 la., 610; Easter v. White, 12 O. S., 219; Rose v. O’Linn, 10 Neb., 364.) As to the doctrine of original and collateral promises: Olopper v. Poland, 12 Neb., 70; Fitzgerald v. Morrissey, 14 Id., 201; Orawford v. Edison, 45 O. S., 239 ; Birchell v. Neaster, 36 Id., 331.

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

Tried below before Broady, J. Under a similar state of facts it has been held in Missouri that a car repairer could not recover. (Renfro v. R. Co., 86 Mo., 302; Cagney v. R. Co., 69 Id., 416; Smith v. R. Co., Id., 32.) An employe accepting, knowingly, the risks of a situation, cannot complain if subsequently injured by exposure to them. (Wharton on Negligence, 214.) That one is directed by a foreman to do what is his duty and is injured, does not render the company liable.

Rehearing of case reported in 25 Neb., 382. As to the first instruction, the error is not cured by a subsequent instruction committing the question to the jury (McPherson v. Wiswell, 19 Neb., 117); and the court made no statement to the jury of the issues as raised by the pleadings, which was error. (Potter v. JR. Co., 46 la., 399; Dossier v. Wisley, 32 Mo., 498; MJeKinney •v. Hartman, 4 la., 153; 8andwioh Mfg Co. v. Shiley, 15 Neb., 111.)

Tried below before Wakeley, J. The evidence is insufficient to sustain the verdict, especially as to intent to commit rape. (Thompson v. State, 43 Tex., 583.) An assault with intent to persuade a woman to submit to intercourse is not an assault with intent to commit rape. (.Pleasant v. State, 8 Eng. [Ark.], 372; Charles v. State, 6 Id., 390; Thomas v. State, 16 Tex. App., 539; Petersonv. State, 14 Id., 162; Saddler v. State, 12 Id., 194; Krumv.

Original application for mandamus. Mandamus lies to compel payment of damages for property taken by a municipal corporation. (People v. Lowell, 9 Mich., 144; Higgins v. Chicago, 18 111., 279; Johnston v. Supervisors, 19 Johns. [N. Y.], 275; Treat v. Middleton, 8 Conn., 243; People v. Supervisors, 4 Barb., 64; Harrington v. Com’rs, 22 Pick. [Mass.], 263; State, ex rel.

Heard below before Field, J. The entry on appellant’s land was unlawful, and injunction lies to prevent further occupancy.

<p>Motion for diminution' of record.</p>

<p>1. Criminal Law: Continuance. The facts stated in an affidavit in support of a motion for a continuance, for the purposes of the motion, will he taken as true; and where sufficient facts are stated, a continuance should he granted. (Williams v. State, 6 Neh., 334; Hair v. State, 14 Id., 503, adhered to.)</p> <p>2.--: Counter Affidavits, or affidavits in resistance of an application for a continuance, made upon affidavits, should not be received. (Citations mpra.)</p> <p>3. -: Change of Venue. The statute as to change of venue in criminal cases confers upon the district court in the county where the offense was committed power to order a change of venue to an adjoining county, but such power is confined to the jurisdiction of the county where the offense was committed. State v. McGehan, 27 O. St., 280.)</p> <p>4. -: Private Counsel. The county attorney in a criminal prosecution may have the assistance of counsel employed on private account. (Bolin v. State, 14 Neb., 540; Bradshaw v. State, 17 Id., 151.)</p> <p>5. -: County Attorney: Venue. Upon the removal of a criminal prosecution from the county in which the offense was committed, to an adjoining county upon change of venue, it is not the duty of the county attorney of the former county to follow the case to the latter county, but it is the duty of the county attorney of such adjoining county to represent the state in the prosecution of the case; and in such case where the county attorney of the adjoining county is under the disability of having appeared in the case as counsel for the accused, it is the duty of the court to appoint an attorney to act as county attorney in the prosecution. Reese, Ch. J., dissents.</p> <p>6. -: Jurors: Voir Dire Examination. The sole object of the preliminary examination of proposed jurors in a criminal prosecution upon their voir dire being to ascertain whether they have formed or expressed an opinion as to the guilt or innocence of the accused, and whether they are prejudiced for or against him, held, to be no error in the trial court to refuse to permit the counsel to examine such juror as to what certain remarks of his of and concerning the accused tended to show, or whether such juror would believe the testimony of all witnesses equally alike, etc.</p> <p>7. -: Witnesses: Addition of Names to Information. In a criminal prosecution the names of witnesses cannot, against objection, be added to the information without a showing that they were not known earlier and in time to give the accused notice, in season to anticipate their presence before trial. (People v. Sail, 48 Mich., 482.) Reese, Ch. J., dissents.</p> <p>8. Perjury: Evidence Required. In a prosecution for perjury the falsity of the testimony or oath of the accused upon which the perjury is assigned cannot be established by the testimony of one witness alone. It maybe proved by the testimony of one reliable witness, and such corroborative facts and circumstances as will give a clear preponderance of the evidence in favor of the state; if such preponderence excludes all reasonable doubt of the guilt of the accused, such corroborative facts or circumstances ought, at least, to equal the testimony of a single witness. (Gandy v. State,23 Neb., 436.)</p> <p>9. -: ---. The testimony of the witness referred to must be positive and unequivocal, and no amount of corroboration will be sufficient to sustain a verdict of conviction where the testimony of the witness to be corroborated is in the alternartive, doubtful and equivocal.</p> <p>10. Information: Variance. In a criminal prosecution on information alleging perjury in testifying falsely as a witness to the copy of a lease of farm and crop, signed John M. T., the prosecuting witness, who testified that his name was Jeremiah, and he was not otherwise known, held, that the variance was fatal to a conviction.</p>

Tried below before Field, J. The relation of principal and surety continues after judgment. The surety is entitled to the same rights as before; when he has paid a joint judgment against himself and principal, and taken an assignment of the same, he may be subrogated to the rights of the original judgment creditor. Such surety is entitled to subrogation without a formal assignment, but may insist upon such assignment and enforce it by execution.

Heard below before Broady, J. The act of 1887 could not be amended by designating its title or chapter in afoot note to the Comp. Stats. Sec. 30, ch. 18, might have been repealed, but hardly changed and amended by implication. If repealed, the board had no power to levy the special tax, particularly as the taxing power must be expressly granted and strictly construed (Slate, ex rel.

Tried below before Bboady, J. In the pleadings but one question could be raised as to attorney fees, viz.: in regard to the existence of a contract for the same. Such contract being alleged, it was error to allow evidence as to quantum meruit. The Code requires new matter constituting a defense to be set up so that the opposing party may meet it.

Tried below before Marshall, J. Villages should not be held liable the same as opulent municipalities endowed with extraordinary powers. Defendant in error failed to use ordinary diligence to prevent the enhancement of the injury, and is guilty of contributory negligence. (Potter v. Warner, 91 Pa. St., 362 ; Hibbard v. Thompson, 109 Mass., 288; Lyons v. R. Co., 57 N. Y., 489; Himtv. Gaslight Co., 1 Allen [Mass.], 349 ; 4 Am. and Eng.

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

Appeals from the district court for Cass county. Heard below before Field, J. For contentions of counsel, see Fenton v. Yule, ante, 758, where the points raised in the briefs are in the main similar.

Tried below before Chapman, J. Secs. 15, 16, and 18 of the act of 1881, commonly known as the “Slocumb Law,” conflict with sec. 11, art. 3, Const. (Teeumseh v. Phillips, 5 Neb., 305; White v. Lincoln, Id., 505; Ex parte Thomason, 16 Id., 238; Ives v. Norris, 13 Neb., 252.) The question of the constitutionality of the act was not before the court in Pleuler v. State, 11 Neb., 547, hence any statement therein relative to such question is an obiter dictum. (Wells, Res.

Tried below before Doane, J. The object of forcible entry and detainer is to protect actual possession, whether rightful or not, against unlawful invasion (Myers v. Koenig, 5 Neb,, 422; People v. Leonard, 11 Johns., 504; St. L., etc., Ass’n v. Reinecke, 21 Mo. App., 478; Lorimerv.

Tried below before Field, J. The decisions cited in defendant in error’s brief were under statutes which- make no exception in regard to railroad fencing, the courts so construing the statute that a fence was often required within the town limits. Our statutes have made the town limits also those of fencing, hence those decisions do not apply here.

Tried below before Broady, J. There is a failure to prove title in Gray. The record shows that he lived some miles from the land; but does not show whether or not the same was improved. If it was not Gray did not even have possession unless he had the legal title. (Yorgensen v. Yorgensen, 6 Neb., 385.) His possession must have been actual, adverse, and continuous.

Tried below before Broady, J. The motion for amercement should have been sustained upon the pleadings alone, as the answer contains no sufficient defense. (Code, 513, 891.) Plaintiff in error was induced to purchase Spicknall & Hassett’s interest by the assurances and return of the sheriff; the latter is therefore liable to the amount thereof with interest.

Tried below before Appel get, J. Payment must be pleaded and is not otherwise admissible in evidence. (Bliss, Code Pleading, sec. 358; Baker v. Kistler, 13 Ind., 63 ; Clark v. Mullen, 16 Neb., 481; Savage v. Aiken, 21 Id., 605; McKyring v. Bull, 16 N. Y., 297.) In an action for money had and received and for services rendered, a general denial is inconsistent with evidence of payment.

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

Heard below before Chapman, J. The acts of 1875 and 1879, providing for the foreclosure of tax certificates, cannot apply here, as they would cut off a claim existing at the time of their passage without allowing a reasonable time to bring an action. (Wood, Limitations, sec. 11; Horbaoh v. Miller, 4 Neb., 3L; Morford v. State, 24 Pa. St., 92; Boone, Code Pleading, sec. 69.) The five-year limitation is not available in this case, as it was not pleaded.

Tried below before Norval, J. A mortgagee cannot, by an action at law, enforce the promise of a third party who assumes the mortgage debt; such promise is primarily for the benefit of the original debtor, and he alone has the right of action. (National Bank v. Grand Lodge,. 98 U. S., 123; 1 Jones, Mortgages, see. 761 (6); Booth v. Ins.

Tried below before Appeeget, J. The petition was fatally defective in alleging an assault merely and not traversible facts.

<p>Original action in nature of quo warranto.</p> <p>Motion to quash summons.</p>

Tried below before Eield, J. Defendant in error was bound to see that the agents had his note in their possession ( Williams v. Walker, 2 Sandf. Ch. [N. Y.], 325, [359]; Osborne v. Kline, 18 Neb., 344-7 — 9); especially would this be true in case of payment before maturity, as it would be the maker’s duty to guard against a sale by the holder to an innocent purchaser.

<p>Error to the district court for Douglas county. Tried below before Wakeley, J.</p> <p>The appeal was taken and perfected in time. (Comp. Stats., ch. 20, secs. 42-46; Casey v. Peebles, 13 Neb., 7; Pazzo v, Wallace, 16 Neb., 293; Morgan v. Btittigan, 10 Western Law Journal, 74; Oeddes v. Bice, 24 O. St., 60; Wadsworth v. Wadsworth, 15 Pac. Rep., 447; Code, sec. 895; Monell v. TerwilUger, 8 Neb., 362; Roesinh v. Monell, Id., 146; Clore v. Hare, 4 Neb., 132; Malicie v. Mc-Permot’s Estate, 25 Neb., 267.) The act of February 28, 1881, comprising secs. 43-46, ch. 20, repealed by implication the act of 1873, relied on by defendant in error. (1 Shars. Blackstone, 88, notes 33, 34; Potter’s Dwarris on Statutes, 113, note 9.) Said act is mandatory and embraces every matter of probate jurisdiction.</p> <p>The act of 1881, which, it is claimed, governs this case, is unconstitutional under sec. 11, art. 3, Const., in that it provides for the right of appeal, and for the forfeiture of the same; the latter subject not being expressed in the title.</p>

Tried below before Chapman, J. The agreement as to the final decree being solemnly executed, and sanctioned by the court, cannot now be amended by it; nor should it be set aside on account of a blunder, or even of fraud, unless the evidence of the latter be conclusive. The instrument itself is evidence not to be overcome by unsatisfactory oral testimony.

Tried below before Field, J. The right to be heard in defense of the issues between the parties is not a jurisdictional one, and the fact that the appellee may have the case dismissed on motion, shows that if such motion were not filed the court would have jurisdiction, all that is necessary to give the latter being a proper showing of diligence (Slaven v. Heilman, 24 Neb., 646; Converse Cattle Co. v. Campbell, 25 Id., 37); and such showing was made in this case.

Tried below before Hopewell, J. The instruction as to the loan, agency and commissions is erroneous, being misleading and without evidence to support it. ( Williams v. State, 6 Neb., 334; Holmes v. Boydston, 1 Id., 358; JDunbier v. Day, 12 Id., 596; Frederich v. Ballard, 16 Id., 564; Washington Ins. Co. v. Merchants’, etc., Ins. Co., 5 O. St., 450; Mutual Hail Ins. Co. v. Wilde, 8 Neb., 431; Housel v. Thrall, 18 Id., 487; U. B. 11.

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