Volume 31 — Nebraska Reports

<p>1. Building Contract: Waiver. Held, That a provision in a building contract that “no new work of any description done on the premises, nor work of any kind whatsoever, shall be considered as extras unless a separate estimate in writing for the same before it is commenced shall have been submitted by the contractor to the superintendent and proprietor and their signatures obtained thereto,” may be subsequently waived by the parties by parol.</p> <p>2. -: Extra Materials: Owner’s Liability. The owner of a building is liable for work and materials furnished by the contractor in its construction not called for by the original written contract, where the owner, or his authorized agent, by a subsequent oral agreement, promised to pay therefor, or knew that the contractor would charge for the same as extras, and assented thereto or permitted the same without objection.</p> <p>3. -: Damages. When a contractor omits to furnish materials called for by his contract, he is liable therefor in damages to the owner.</p> <p>4. -: Delay in Completion. A building contract provided for the completion of the building by a specified date, “ provided there be no interference from labor strikes.” It was held, that the fact.that the mechanics quit work upon the building on account of the contractor failing to pay them their wages as agreed, did not release the contractor from completing the building by the time agreed upon.</p> <p>5. -: Review. Held, That the judgment to the extent of $719.62 is unsupported by the evidence.</p>

Heard below before Morris, J. cited, as to the bill of exceptions, cases referred to in opinion; on the question of jurisdiction: Robinson v. Mathwiclc, 5 Neb., 252; Doody v. Vaughn, 7 Id., 28; 8. C. & P. R. Co. v. Washington Co., 3 Neb., 41; Frees v. Ford, 6 N. Y. 176; Yates v. Lansing, 9 Johns. [N. Y.], 437; Reynolds v. Stansbury, 20 O., 353; Wheeler v~. Raymond, 8 Cow. [N. Y.], 314; Bloom v. Burdick, 1 Hill [N. Y.], 130; State, ex rel.

Heard below before Wakeley, J. to the contention that government land could not be pre-empted in trust for another: St. Peter v. Bunker,5 Minn., 153; Pan-dad v. Bdart, 7 Id., 359; Plosmer v. Wallace, 97 U. S., 575; Bohall v. Billa, 114 Id., 47; Harkness v. Underhill, 1 Black [U. S.], 316; Myers v. Croft, 13 Wall. [U. S.], 291; Smiley v. Sampson, 1 Neb., 56; Warren v. Van Brunt, 19 *Wall. [U. S.], 646; Leggett v. Dubois, 5 Paige [N. Y.], 114; R. Co. v. Durant, 95 IT.

<p>Criminal Pleading: An Information alleging that W. T. was deceived of property hy the false pretenses and representations of J. R. R. made to W. G-. T., without alleging his agency for the principal, is not a sufficient allegation, nor is it Q. E. D. that J. E. J. intended to defraud W. T.</p>

<p>1. Liquors: License: Action eor Obstructing: Issue. In an action of C. & O. against H. & P. and M., for maliciously obstructing their application for license to vend malt, spirituous, and vinous liquors, an allegation that the city council ordered the city clerk to" issue such license to the plaintiffs upon the payment of the license fee of $1,000, which they took with them and tendered to the city treasurer, and demanded of the city clerk to issue and deliver to them the license, which demand the clerk, being instigated by the other defendants, H. & P., wrongfully refused, held, not sufficient to constitute a cause of action.</p> <p>2. -: -: Payment of Fee Necessary. Under sec. 5,, chap. 50, Comp. Stats., known as the Slocumb law, an applicant, granted license to sell malt, spirituous, and vinous liquors upon payment of the amount of the license fee, is required to pay the same into the treasury before the issuance of the license, and no formal tender of tne amount to the treasurer, without payment, will support an action against another officer refusing to issue the license.</p>

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

<p>Bank Examiners: Compensation. Under the act of March 29, 1889, requiring banks, corporations, firms, and individuals transacting a banking business to report their resources and liabilities to the auditor of public accounts, and providing for their yearly examination, the fees of bank examiners, appointed by the board of state officers under the act, are to be strictly in conformity to section 8 of the act, and any resolution or order of the board of state officers prescribing any other rule or rate of compensation is without authority and void. •</p>

<p>Error to the district court for Lancaster county. Tried below before Field, J.</p> <p>cited, contending that possession, to be adverse, must be under claim of right: Gatling v. Lane, 17 Neb., 79; Jackson v. Johnson, 5 Cow. [N. Y.], 92; Magee v. Magee, 37 Miss., 152; Angelí, Lim., 410-11; Gay v. Mitchell, 35 Ga., 141; Brown v. Gay, 3 Me., 126; McNamara v. Beaton, 82 111.,-498; Skinner v. Crawford, 54 la., 119; Wood, Lim., 513; Colvin v. B. V. Land Ass’n, 23 Neb., 80; Ewing v. Burnet, 11 Pet. [U. S.], 41; McCracken v. San Francisco, 16 Cal., 635.</p> <p>cited: Horbach v. Miller, 4 Neb., 47; Haywood v. Thomas, 17 Id., 241; Tex. v. Pflug, 24 Id., 669; Levy v. Yerga, 25 Id., 766.</p>

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

<p>Error to the district court for Otoe county. Tried below before Chapman' J.</p> <p>cited on the first point discussed in the opinion: Perkins v. Simonds, 28 Wis., 90; Maffit v. Clark, 6 W.&S. [Pa.], 260; Coke, Litt., 12a; 2 Black., Com., 243; Butler v. King, 2 Yerg. [Tenn.], 116; Shippon v. Izard, 1 S. & R. [Pa.], 223; Gardner v. Collins, 2 Pet. [IT. S.], 58; 5 Hilliard, Real Prop., 207; Baker v. C half ant, 5 Whart. [Pa.], 477; Torrey v. Shaw, 3 Edw. Ch. [N. Y.], 362. As to the second point: Riggs v. Palmer, 115 N. Y., 506, and the following maxims: Crimen omnia ex se nata vitiat, 5 Hill [N. Y.], 523, 531 ; Jus ex injuria non oritur, 4 Bingh., 639; Broom’s Leg. Max., 738, note; Jus descendit, et non terra, Coke, Litt., 345.</p> <p>The question of descent is governed by sec. 33, ch. 23, Comp. Stats., not by sec. 30. Attainder, forfeiture, etc., were long since abolished. (Williams, Real. Property, 126; State Const., art. 1, secs. 3, 16; Federal Const., art. 1, sec. 9, subdiv. 3.) As to the second point discussed in the opinion: Owens v. Owens, 100 N. Car., 240.</p>

Exceptions from the district court for Douglas county, Hopewell, J., presiding. Filed under the provisions of sec. 515, Criminal Code. cited: Smails v. White, 4 Neb., 353; Jones v. Davis, 6 Id., 33; State v. Page, 12 Id., 386. cited: Sovereign v. State, 7 Neb., 409.

Original application for mandamus. The supreme court may issue a mandamus against even the governor to compel him to perform a purely ministerial duty (Maxwell, Pl. & Pr. (1889), p. 735; Magee v. Board, 10 Cal., 376); and the duties of the state canvassing board are ministerial only (Hagge v. State, 10 Neb., 51; Long v. State, 17 Id., 61; Glarh v. McKenzie, 7 Bush [Ky.], 523; People v. Hillard, 29 111., 414).

<p>Res Gestee: The Declarations or an Agent made after the transaction to which they relate is fully completed and ended are not competent to be given in evidence as a part of the yes gestee.</p>

Tried below before Nor val, J. cited, to the contention that the dheck-holder could .not sue the bank on its refusal to pay: Natl. Bank v. Millard, 10 Wall. [U. S.], 152 — 58; Bankv. Whitman, 94 U. S., 343; Hopkinson v. Forster, L. R. 19 Eq., 74; Caldwell v. Bank, 26 U. C. C. P., 294; Bellows Falls Bank v. Rutland, eto., R. Co. Bank, 28 Yt., 470; Carr v. Natl. Security Bank, 107 Mass., 45; Case v. Henderson, 23 La. Ann., 49; JEtna Natl.

<p>1. Murder: Complaint: Informality. In a complaint before an examining magistrate it was alleged that tbe accused “then and there unlawfully, willfully, maliciously, and feloniously, and of his deliberate and premeditated malice, did kill and murder Hiram Roten and William Ashley.” To this charge the accused pleaded “ not guilty,” and waived an examination and was thereupon committed to jail. Upon an information being filed against him in the district court he filed a plea in abatement to such indictment on the ground that the complaint failed to charge him with murder in the first degree and therefore he had not waived an examination for that crime. In the, original complaint he was charged with killing two persons, whereas in the information he was charged with killing but one of them. Held, That the plea in abatement was properly overruled and that the complaint, though informal, did charge murder.</p> <p>2. -■ — : Case Stated. The accused committed a burglary by breaking into a school house and taking a clock and other property therefrom. Soon afterwards two of the officers of the district, following up the tracks of horses and the wagon to the residence of the accused, demanded the clock, which the accused delivered to them. He then followed them out doors and when they were a short distance from the house going away he shot each of them through the head, killing them instantly. Held, That a verdict of murder in the first degree would not be set aside nor the sentence reduced.</p> <p>3. -: Premeditation: Duration. To warrant a conviction of murder in the first degree it is not necessary that the evidence show that the accused deliberated over the matter and formed the purpose to kill, for weeks, days, or hours before committing the crime. The law fixes no particular length of time for premeditation and deliberation as the criterion to distinguish murder in the first from the lower degree thereof, but leaves each case to be determined from the circumstances surrounding it.</p>

<p>Bill of Exceptions: Affidavits used in the district court on the hearing of a motion, as to sustain or discharge an attachment, must he embodied in a bill of exceptions to be available in the supreme court.</p>

<p>Agent: Cannot Pledge Principal’s Goods. While an agents entrusted with the sale of goods may, in the ordinary course oi business, sell such goods and bind his principal, yet he cannot pledge the goods as security for his own debt, even though he give a chattel mortgage thereon and waive the foreclosure thereof.</p>

<p>Error to the district court for Hall county. Tried below before Harrison, J.</p> <p>cited: 1 Greenleaf, Ev., sec. 578; Randolph v. Loughlin, 48 N. Y., 458; Van Wych v. Maolntosh, 14 Id., 442; Vinton v. Reolc, 14 Mich., 294; Doe v. Newton, 5 Ad. & E. [Eng.], 514; Jumpertz v. People, 21 111., 375; State v. Fritz, 23 La., 55; Williams v.Drexel, 14 Md., 566 ; Smith v. Walton, 8 Gill [Md.], 86 ; Calkins v. State, 18 O. St., 366; Bragg v. Col-well, 19 O. St., 413; Strother v. LuQas, 6 Pet. [U. S.], 763.</p> <p>cited: Huff v. Nims, 11 Neb., 365 ; Calkin v. State, 14 O., 222; Fisher v. Butcher, 19 O., 406.</p>

<p>Error to the district court for Washington county. Tried below before Groee, J.</p> <p>Blair Savings Bank, cited: Cooper v. Foss, 15 Neb., 515; 1 Jones, Mortgages [2d Ed.], secs. 740-1, and citations.</p>

<p>Justice of the Peace: Cannot Purchase Judgment for Costs. Sec. 1101 of the Code of Civil Procedure makes it unlawful for a justice of the peace to purchase a judgment upon any docket in his possession, and this prohibition applies to an interest in a judgment rendered for costs.</p>

<p>Appeal from the district court for Webster* county. Heard below before Gaslin, J.</p> <p>cited : Bank of Muskingum, v. Carpenter, 7 O., 71; Cheeseman v. Kyle, 15 O. St., 15; Ellis v. Carlisle, 16 Miss., 552; Suceession of Yarborough, 16 La. Ann., 258; Ferry v. West, 40 Miss., 233; Little v. Little, 36 N. H., 224; Oruikshank v. Cruikshank, 9 How. Pr. [N. S.], N. Y., 350; Trigg v. Moore, 10 Tex., 197; Wood, Lim., sec. 157; Tindal v. MeMillan, 33 Tex., 484; Cullerton v. Mead, 22 Cal., 96; Johnston v. Johnston, 36 la., 608; Perry, Trusts, sec. 867; Wilcox v. Jackson, 10 N. W. Rep., 665; Betters v. Farrell, 13 Id., 319 ; Mollison v. Mills, 25 Id., 631; Brewster v. Kendrick, 17 la., 479; McAfee v. Phillips, 25 O. St., 374; Smiley v. Sampson, 1 Neb., 87, 89; State v. Button, 25 Wis., 109.</p> <p>cited: Ellison v. Lindsley, 33 N. J. Eq., 258; Ln re Holt, 45 la., 301; McKindley v. Nourse, 67 Id., 118; Smith v. Wheeler, 12 N. W. Rep., 626; Ln re Burdick, 10 Daly [N. Y.], 49; Brewster v. Kendrick, 17 la., 479.</p>

Original application for mandamus. cited, contending that the act of 1883 impaired the obligation of contracts : Fletcher v. Peck, 6 Cranch [U. S.], 87-136 ; Davis v. Gi'ay, 16 Wall. [U. S.], 203; Dikeman v. Dikeman, 11 Paige Ch. [N. Y.], 484; Goenen v. Schroeder, 8 Minn., 387; Greenfield v. Dorris, 1 Sneed [Tenn.], 548; Robinson v. Howe, 13 Wis., 385; Coffman v. Bank of Ky., 90 Am. Dec., 313. cited: Cooley, Const.

<p>Error to the district court for Saline county. Tried below before Morris, J.</p> <p>cited : Perry v. Patterson, 5 Humph. [Tenn.], 133; State Bank v. Eoans, 3 Green Law [N. J.], 155 [28 Am. Dec., 400, and note at 408]; People v. Bostwick, 43 Barb. [N. Y.], 1 [32 N. Y. 445]; Smith v. United States, 2 Wall. [U. S.], 219 ; Cutler v. Roberts, 7 Neb., 5; Letcher v. Bates, 22 Am. Dec., 92; Woodworth v. Bank, 10 Id., 239; Murfree, Official Bonds, sec. 760; Caffrey v. Dudgeon, 10 Am. Rep., 134; Draper v. Wood, 17 Id., 92; Nash v. Fugate, 18 Id., 640; Sharp v. U. S., 28 Am. Dec., 679, notes; Hessell v. Johnson, 6 Am. St. Rep., 334 [63 Mich., 623]; Taylor Co. v. King, 5 Am. St. Rep., 666.</p> <p>cited: Cutler v. Roberts, 7 Neb., 4; McCormick v. Bay City, 23 Midi. 457; Carroll v. Buggies, 69 la., 275; Taylor Co. v. King, 34 N. W. Rep., 774; State v. Peck, 53 Me., 284; Chicago v. Gage, 99 111., 593; Drury v. Foster, 2 Wall. [U. S.], 24; Kopplekom v. Huffman, 12 Neb., 98 ; Lee County v. Welsing, 30 N. W. Rep., .481; Wiley v. Moor, 17 Serg. & R. 438; Wright v. Harris, 31 la., 272.</p>

<p>1. Elections: Contest. A party in contesting an election set, forth in his petition the names of 161 persons whom it was alleged were illegal voters, and who voted in favor of the proposition contested. Also that a considerable number of illegal votes were cast by persons whose names were unknown to the plaintiffs. To sustain these allegations the proof failed to show that the persons objected to did not reside within the city, and in the. ward in which the returns showed that they had voted. Held, The proof was insufficient to show that fraudulent or illegal votes were cast.</p> <p>2. -: -: Proof of Illegal Voting. One of the modes of proving that illegal or fraudulent votes were cast in a ward of a city or other subdivision is to call a resident on one of the blocks in said ward and prove by him who were residents and voters residing on the lot on which he resides. If he is acquainted with ail the residents and voters on such or other blocks, he may testify thereto. Otherwise witnesses from the several houses, lots, or blocks must be called to show who are occupants and voters in the several buildings on said block or blocks at the time of the election. The proof maybe extended in this manner over the disputed territory, and the fraudulent names deducted from the whole vote cast in such ward or other division. '</p> <p>3. -: -: -. Where it is sought to have an election declared fraudulent because the votes cast are grossly in excess of those cast at previous and succeeding elections, the proof should show the number of votes cast at at least two general elections preceding, as well as those cast at the elections following, together with any explanation tending to show the cause, or the want of it, for the increase, and if fraud is clearly established in the excessive votes the court may reduce the vote to the average number theretofore cast, or in case of gross fraud reject it altogether.</p> <p>4. -: -: Case Stated. An election was held in the county of C. to issue the bonds of the county, at which the city cf P. cast more than 2,200 votes. The election was held in June, 1889, and to prove that the election was fraudulent the contestant introduced the number of votes cast at the city election in said city in the spring of 1889, and also at the election in November, 1889, being about 1,300 votes; but did not introduce the number of votes cast at the general election in 1888, nor at the general election in 1887. The court found the number of legal voters in the city at the time of the bond election to be 1,928. HeXd, That without proof that the votes cast at the general elections of 1888 and 1887 were greatly less than the number of votes cast at the bond election, the court could not reject votes at the latter election as being excessive and therefore fraudulent and unknown voters.</p>

<p>Error to the district court for Webster county. Tried below before Gaslin, J.</p> <p>cited; People v. McCallum, 1 Neb., 203; Dorsey v. Hall, 7 Id., 463; Holmes v. State, 17 Id., 74; Mo. Valley Land Co. v. Bushnell, 11 Id., 192 ; Astley■ v. Reynolds, 2 Strange [Eng.], 915; Harmony v. Bingham, 12 N. Y., 109; Coche v. Porter, 2 Humph. [Tenn.], 15; Brumagim v. Tillinghast, 18 Cal., 272; Wortman v. Conynham, 1 Pet. C. C. [U. S.], 211; Brown v. Baker, 9 Port. [Ala.], 503; Bark v. Campbell, 15 Johns. [N. Y.], 456.</p>

<p>Error Proceedings: Not Barred by Attempted Appeal. A recovered a judgment against B in the county court of Greeley county for 857.10 on August 17, 1888, and on the 24th day of the same month B filed an appeal bond in said court, which was duly approved. On the 18th day of September, 1888, a transcript of the judgment was filed in the district court of the county for the purpose of taking an appeal! Subsequently, on motion of A, the district court dismissed the appeal because the transcript was not filed in that court within thirty days after the rendition of the judgment. Afterwards B prosecuted a petition in error to the district court from the judgment of the county court. Held, That the attempt to appeal was not a bar to the proceedings in error.</p>

<p>Appeal from the district court for Lancaster county. Heard below before Field, J.</p> <p>cited: Devlin, Deeds, sec. 738; Pemberton v. Pollard, 18 Neb., 435; Bosenfield v. Chada, 12 Id., 25; Kennedy v. Green, 3 M. & K. [Eng. Ch.], 719; Fellows v. Wise, 55 Mo., 413; Wood v. Carpenter, 101 U. S., 135; Yaney v. Cothran, 32 Fed. Rep., 687; Carr v. Hilton, 1 Curtis [U. S. C. C.], 390; Buckner v. Calcott, 28 Miss., 434; Price v. Peed, 13 West. Rep., 510; Bayard v. Norris, 5 Gill [Md.], 483; Green v. Early, 39 Md., 229.</p> <p>cited: Mansfield v. Gregory, 8 Neb., 432; Harralv. Gray, 10 Id., 189; Reynolds v. Cobb, 15 Id., 381; Westheimer v. Reed, Id., 664; Clark v. Tennant, 5 Id., 549; Gehling v. Hinton, 12 Id., 557; Altman v. Steinan, 8 Id., 114; Q-esswell v. Mc-Caig, 11 Id., 227.</p>

Tried below before Powers, J. cited, contending that the petition should have been made more definite and certain by attaching copies of the notes: Code, sec. 124; Dorrington v. Meyer, 8 Neb., 214; By an v. State Bank, 10 Id., 527. That the signatures of co-makers, after the delivery of the note, require a new consideration : 2 Randolph, Com.

<p>1. Elections: Legislative Canvass: Duty of Speaker. At the general election of 1890, T. H. B., who was eligible, was a candidate for the office of auditor of public accounts, and received, as shown by the returns, a plurality of all the votes cast for said office;.within twenty days thereafter, J. B., who was also a candidate for said office at said election, served upon T. H. B. notice of contest of the election to said office, and of the times and places of taking testimony in support of his contest; which testimony was taken and forwarded to the secretary of state before the meeting of the legislature. On January 6, 1891, both houses of the legislature met and were duly organized by the election of S. M. E. speaker of the house of representatives, and of other officers, who took the oath of office, on which day each house of the legislature assembled in the hall of the house of representatives to be present at the opening and publishing, by the speaker, of the returns of said election for officers of the executive department, which had been sealed up and transmitted by the returning officers to the secretary of state, directed to the speaker of the house of representatives, which returns had been delivered to S. M. E. as speaker, who refused to open and publish the same in the presence of a majority of both houses of the legislature. Upon an application by T. H. B. for mandamus against the speaker to compel the performance of said duty, held, that it was the duty of S. M. E.,immediately upon the organization of the house, and before proceeding to any other business, to open and publish said returns of election.</p> <p>2. -: -: -. That to perform said acts was especially enjoined upon S. M. E. by law as a duty resulting from his office of speaker of the house of representatives.</p> <p>3. -: -: -. That the,duty so imposed upon him was a ministerial duty positively imposed by law, in regard to which he was vested with no discretionary power.</p> <p>4. -: -: -: Mandamus. That it was a duty which would be enforced by writ of mandamus.</p> <p>5. -: -: Publication of Returns Not to be Postponed. That S. M. E. was not relieved of this duty by a vote or resolution of the joint convention of the two houses directing him not to open and publish said election returns until after the trial and determination of the pending contest, nor by the vote, or resolution, of said joint convention referring said returns to the consideration of a committee.</p>

<p>The finding complained of and the evidence upon which the same was made, examined and held, that there was no error in the finding.</p>

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

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

<p>Fraudulent Conveyances: Attachment. The defendants were engaged in the mercantile business and were indebted to the plaintiff in the sum of $708.76. Soon after this debt became due they executed a chattel mortgage on their entire stock of goods, fixtures, safe, etc., to the father of one of the defendants and an uncle of the other, then residing in Iowa, to secure the sum of $2,217.82. This mortgage was made in the absence of the mortgagees, apparently without their knowledge or acceptance, and was filed for record on the day it was made. An attachment was thereupon levied upon the goods of the defendants, who, to sustain the mortgage, filed an affidavit stating that said mortgage was given to secure a valid indebtedness from these defendants to saidW. H. Butler and Edmund Jeffries of $2,217.82. Held, That to sustain the mortgage the facts should have been alleged showing how and for what the indebtedness was incurred, and that in the absence of such showing the proof was not sufficient to establish the fact that the mortgage was bona fide.</p>

<p>Summons: Service by Special Constable. Sec. 1094 of the Code authorizes a justice of the peace in certain cases to deputize a person to serve a summons. In making the appointment it is not necessary to state therein that the justice was requested to make it, nor that it was expedient to do so, as these facts will be presumed from the appointment itself. All that the statute requires is that the writ itself show the deputation, and this may be done by addressing the writ to a particular person. {Saslcins v. Citizens Bank, 12 Neb., 41.)</p>

<p>Error to the district court for Nance county. Tried below before Post, J.</p> <p>cited : Dawson v. McFaddin, 22 Neb., 131; Potter v. Smith, 35 N. W. Rep. [Mich.], 916 ; Poullain v. Poullaim,, 4 S. E. Rep. [Ga.], 92; Hurley v. Cox, 9 Neb., 232 ; Uhl v. May, 5 Id., 160 ; Filley v. Duncan, 1 Id., 134; Knapp, Partition, 79, 310,377 — 8,381; 3 Wait, Actions& Defenses, 149, 176; Bussell v. Mandell, 73 111., 140; Bawson v. Fox, 65 Id., 200.</p> <p>cited: Kerr, Fraud & Mistake, 315, 316; Plennessy v. Woolworth, 128 U. S., 438; Burke v. Bay, 41 N. W. Rep., 240; Pierson v. Ballard, 20 Id., 193; Mansell v. Loree, 21 Mich., 497; Thomas v. (h'iffith, 25 N. W. Rep., 900; Edwards v. Fry, 9 Kan., 417 [26 Am. Dec., 664, and note] ; Wright v. Wright, 31 Mich., 380; Appeal of Holthouse, 12 Atl. Rep., 340; Nippolt v. Kammon, 40 N. W. Rep., 266 ; Devlin, Deeds, secs. 145, 150; Jervis v. Smith, 1 Hoffman Ch. [N. Y.], 470; Lord v. Underdunek, 1 Sandf. Ch. [N. Y.], 46.</p>

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

<p>1. Self-Defense. While a person has the right when assaulted by another in such a manner as to excite in him a reasonable belief that he is in danger of losing his life or receiving great hodily injury, to resist the attack by using such force as is apparently necessary to defend himself, yet, if after he has secured himself from danger, he takes the life of his assailant, in the spirit of revenge, he cannot claim exemption from punishment on the ground of self-defense.</p> <p>2. A motion for a new trial in a criminal case, to avail the party making, must he filed at the term of court at which the verdict is returned, and, except for newly discovered evidence, within three days after the verdict was rendered, unless unavoidably prevented.</p> <p>3. Review. Held, That the verdict is sustained by the evidence and that the sentence was not excessive.</p>

. A motion for a new trial and ruling thereon is necessary before error proceedings can be prosecuted. (Hull v. Miller, ■6 Neb., 128; Liclity v. Clark, 10 Id., 475; Kepner v. Sniveley, 19 O., 296 ; Hutchinson v. Eaton, 9 Wis., 205 ; K. Y., etc. It.

<p>1. Rape: Assault on Child. An assault by a male person of the age of eighteen years or upwards, with intent to carnally know a female child under the age of fifteen years is punishable in this state as an assault with the intent to commit a rape.</p> <p>2. -: -: Consent Immaterial. In a prosecution for an assault upon the perspn of a girl under the statutory age of consent, with intent to commit a rape, it is not necessary to allege or prove that the acts were done against her will. “Whether she consented or resisted is immaterial.</p> <p>3. Information: Verification by Notary: Waiver. An information in a criminal prosecution must be sworn to before a magistrate authorized to administer oaths, and not before a notary public. Defects in the verification of an information not raised until after verdict are waived.</p> <p>4. Jury: Selection: Objections to the mode of selecting petit j urors must be made before trial to be of any avail.</p> <p>5. Criminal Law: Testimony of Accused. When the defendant in a criminal case testifies in his own behalf, it is not error to charge the jury that in weighing his testimony they might consider his interest in the result of the trig!.</p> <p>3. Witnesses: Competency: A Child possessing sufficient capacity to understand the nature and obligations of an oath is a competent witness.</p> <p>7. Evidence examined, and held, insufficient to sustain the verdict.</p>

<p>1. Instructions given and refused examined and considered, and held, properly given and properly refused.</p> <p>2. The evidence examined and considered, and held, that the judgment is excessive to the amount of $132, which the defendant is required to remit or judgment reversed, but upon remittitur being filed within the time limited the judgment to stand affirmed as modified. <</p>

Qujebe submitted by legislature as to constitutionality of contest proceedings under a joint resolution not signedi by governor and lieutenant governor.

<p>Complete Record: Waiver. Under section 444 of the Code it is the duty of the clerk to make a complete record of a case as soon.as it is finally determined unless such record or some part thereof be duly waived. To constitute a waiver of such record it is necessary that both the plaintiff and defendant, at the term in which the final judgment is rendered, agree that no such record shall be made.</p>

<p>1. Review: Evidence: Must be Preserved in Bill of Exceptions. Where affidavits or other evidence are used on the hearing of a motion for a change of venue in the district court, such evidence must be preserved in a bill of exceptions to be available in the supreme court.</p> <p>2. Mechanics Liens: Assignment: Bes Adjudicata. Where certain lien-holders had assigned their liens to one H., who brought an action thereon in his own name and obtained judgment, which- judgment was afterwards reversed in the supreme court and the cause remanded for further proceedings, whereupon one of the lien-holders brought an action on his own account in his own name, held, that the judgment of the supreme court was not a bar to the action.</p> <p>3. Review. The evidence upon the material points being conflicting and nearly equally balanced, the judgment is affirmed.</p>

Tried below before Kinkaid, J. cited, contending that the payment was not voluntary and could be recovered back: Fargusson v. Winslow, 25 N. W. Rep., 942; Shaw v. Woodcock, 7 Barn. & C. [Eng.], 73; Parker v. Ry. Co., 7 Eng.

<p>1. Amendment: Costs. OneH. was permitted to file an amended petition upon payment of costs. He paid a large amount of costs aud filed an amended petition on which the case was tried and a decree rendered. Held, That as the court below had deemed the order of the court as to payment of costs satisfied by trying the cause and rendering a decree, if more costs were still due, the remedy of the defendant was a motion to retax, and that should additional costs still be due from the plaintiff it would not be cause for the reversal of the judgment.</p> <p>2. Mechanics’ Liens: Assignment: Foreclosure. One H. brought an action to foreclose a mechanic’s lien and there being a number of small liens against the same property they were assigned to him and an action brought thereon in his own name. Held, That as the assignment of such liens was in the interest of economy not only on behalf of the lien-holders but also on behalf of the defendant, therefore an order of the court continuing such liens in force and permitting the plaintiff to acquire the beneficial interest as well as the legal title would be sustained.</p> <p>3. Review. Where the proof is conflicting and of such a character as to leave it uncertain what the facts are, the finding of the trial court ordinarily will not be disturbed.</p> <p>4. —»-. The judgment is in conformity to the proof and there is no material error in the record.</p>

<p>1. Illegal Fees: Where a Clerk oe the District Court takes fees, in excess of that limited by law, he is liable to the party injured for the penalty provided by section 34, chapter 28, Compiled Statutes.</p> <p>2. -: Joinder oe Causes. . The receipt by such officers of several items of illegal fees from the same person as one transaction constitutes but one cause of action.</p>

<p>1. Judgments: Res Adjudicata. Where a party recovers a judgment upon a contract, the original cause of action is merged in the judgment, which, if in full force and effect, may be pleaded in abatement to a subsequent suit between the same parties on the same cause of action.</p> <p>2. -: Satisfaction. Where a judgment remains unsatisfied, suit .may be brought, and a recovery had upon the judgment.</p> <p>3. A finding by the trial court of the amount due the plaintiff in the case, upon which no final judgment has been rendered, is not a bar to a subsequent suit for the same cause of action.</p> <p>4. Judgments: Presumption. Where the transcript of a judgment rendered by a j ustice of the peace on the verdict of a jury gives the names of the jurors and shows that no objection was made to the manner of selecting the jury, it will be presumed . that the jury was selected in the mode pointed out in the statute.</p>

<p>Error to the district court for Box Butte county. Tried below before Kinkaid, J. •</p>

Heard below before Appelget, J. cited, contending that the deed to Hollebaugh was merely a quitclaim, and that no estate could pass until the death of the wife: Xoung v. Glippinger, 14 Kan., 148; Blanchard v. Brooks, 12 Pick. [Mass.], 47; Comslock v. Smith, 13 Id., 116; Allen v. Holton, 20 Id., 458; Wright v. Shaw, 5 Cush. [Mass.], 56; Miller v. Ewing, 6 Id., 34; Gee v. 3Ioore, 14 Cal., 472; Kimball v. Semple, 25 Id., 452; Hall v. Nate, 38 N. II., 422; Olney v. Hull, 21…

<p>1. Bill of Exceptions : Settlement. A bill of exceptions must be authenticated by the judge before whom the cause was tried, or, in case of agreement, by the clerk of the district court; and the judge has authority under the statute after the expiration of his term of office to sign such bill.</p> <p>Í2. General Denial. Under a general denial in the answer the question at issue is the truth of the facts stated in the petition. Facts in the nature of confession and avoidance must be pleaded.</p>

<p>1. Municipal Corporations: Unsafe Streets. In an action by an executrix against the city of South Omaha for causing the death of the testator by negligently leaving Twenty-sixth street unguarded at a point a short distance north of the intersection of said street with Twenty-seventh street, the testimony showing that Twenty-seventh street runs in a northwesterly direction where it intersects Twenty-sixth street, and that for a considerable distance north of the intersection the space between the two streets is but a few feet in width, and that the excavation was made on Twenty-seventh street near the intersection of said streets, held, that the questions of fact were fairly submitted to the jury.</p> <p>2. -: -. If a person make an excavation so near the line of a public street that one lawfully passing along said street may accidentally fall into it, it is the duty of the person making such excavation to erect barriers as a protection against such accidents, and if he fails to do so and a person falls into such excavation and sustains injuries, he will be liable for such neglect.</p> <p>3. -: -: Defenses: Intoxication, when relied on as a defense, must be pleaded. Under a general denial the only proof admissible is to establish or disprove the facts stated in the petition.</p>

Exceptions to the district court for Gage county, Broady, J., presiding. Filed under the provisions of sec. 515 of the Criminal Code. cited: Sedgwick, Statutory Construction, 282, 358; Rex v. Inhabitants, 1 T. E. [Eng.], 96;. Mattel• of Schooner Industry, 1 Gall. [U. S.], 114, 117, 118 ; 77. S. v. Athens Armoryf 35 Ga., 344; 77.

Heard below before Tiffany, J., and Hareison, J. The parol agreement did not taint the original notes with usury. (Butterfield v. Kidder, 25 Mass., 512; Allen v. Turnham, 3 So. Rep., 854; Richards v. Kountze, 4 Neb., 206; Bell v. Oppenheimer, 9 Id., 454; Bank v. Wagner, 9 Pet. [U. S.], 378; Bushby v. Finn, 1 O. St., 410; Hotel Co. v. Wade, 7 Otto [U. S.], 13.

<p>Appeal from the district court for Douglas county* Heard below before Wake ley, J.</p> <p>The statute of frauds can be pleaded only by parties and privies. (Richards v. Cunningham, 10 Neb., 420; Hansen v. Berthelsen, 19 Id., 441.) Notice must be alleged. (LarCe v. Krehle, 22 la., 406; Clapp v. Cedar Co., 5 Id., 58; TJther v. Rich, 37 Eng. C. L., 784; Fitch v. Jones, 85 Id., 238; Bailey v. Bidwell, 13 M. & W. [Eng.], 73; Hancoch v. Hale, 17 Fla., 808; Langdell, Eq. PI., sec. 185; Bigelow, Fraud, 130.)</p> <p>The warranty deed to Feeney cannot be defeated by parol proof of an express trust. (Shafter v. Huntington, 19 N. W. Rep., 11; Cook v. Barr, 44 N. Y., 156; Brown v. Bronson, 35 Mich., 415; Cobb v. Cook, 49 Id., 11; Jones v. Van Doren, 18 Fed. Rep., 619; Randall v. ConRans, 23 N. W. Rep., 531; Fairchild v. Rasdall, 9 Wis. 379; Pavey v. Ins. Co., 56 Id., 221; Hansen v. Berthelsen, 19 Neb., 433; O’Brien v. Gaslin, 20 Id., 347; Cour~ voirsier v. Bouvier, 3 Id., 55; Thomaston v. Stimson,%l Me., 195; Bryant v. Crosby, 36 Id., 562; Richardson v. Woodbury, 43 Id., 206.) Even if a trust existed, service of summons upon Feeney, the alleged trustee, and a decree against him, binds Kinsler. (Perry, Trusts, 328 ; Story, Eq. Jur., 1275; Mackey v. Coates, 70 Pa. St., 350.) The deed is not sufficiently clear and certain for a trust deed. (Shade v. Bessinger, 3 Neb., 140; Wharton, Ev., 1033.)</p>

<p>Promissory Note: Signer After Delivery: Liability. A promissory note due in ten months from, date and payable to bearer was given by H. M. and B. F. M. About two months after the execution of the note the original holder sold the same to one J. at a discount of five per cent with accrued interest, and at J. ’s request signed said note immediately to the left of the signatures of the original makers; the reason being, as testified to by him, that there was not room on the paper under the names of the original signers. After the note became due it was transferred to one A., who brought an action thereon against the original holder. Held, That the proof showed that the original holder was liable as maker of the note.</p>

<p>Error to the district court for Phelps county. Tried below before Gaslin, J.</p> <p>cited : Johnson v. Preston, 9 Neb., 474; Morrison v. Neff, 18 Id., 134; Marsh v. Mitchell, 25 Wis.^ 706.</p> <p>cited : Jones v. Kimble, 19 Wis., 430; Moreland v. Page, 2 Clarke [la.], 139; Johnson v. Preston, 9 Neb., 475-6.</p>

<p>1. Clerk of District' Court: Superfluous Certificates. There were five certificates of the cleric of the district court, four of them being dated August 5, 1889, and attached to separate stipulations in the district court; and one certificate dated August 24, 1889, to the record proper. Held, That the four certificates dated August 5, 1889, were entirely unnecessary and tended to cumber the record.</p> <p>% Partnership: Profit Sharing. The mare sharing of profits where third persons have not been led to believe there was a partnership does not create a partnership unless there was one in fact.</p> <p>3. -: -. But participation in the profits of a business where there is testimony tending to show that the persons sharing the same took them as principals in a joint business in which each had an express or implied authority to bind the other will warrant a court or jury in finding that there was a partnership.</p>

Tried below before Powers, J. cited, contending that, in the absence of express statutory prohition, a county may employ counsel: Smith v. Mayor, 13 Cal., 531; Hornblower v. Duden, 35 Id., 670; Clark v. Dyon Co., 8 Nev., 181; Ellis v. Washoe Co., 7 Id., 293; Tatloclc v. Louisa- Co., 46 la., 138; State v. Patterson, 40 N. J. L., 186; Memphis v. Brown, 2 Wall. [U. S.], 289-321; Memphis v. Adams, 9 Heisk. [Tenn.], 518; Butcher v. Camden, 29 N. J. Eq., 478; Wilhelm v. Cedar Co.,…

<p>cited: State, ex rel. Goff, v. County Board, 20 Neb., 595; S. C. & P. P. Co. v. Washington Co., 3 Id., 30; South Platte Land Co. v. Buffalo Co., 7 Id., 253; Dundy v. Biehardson Co., 8 Id., 508; McKee v. Supervisors, 53 Id., 477.</p>

Tried below before Norris, J. cited, contending that the bonded debt was not a lawful charge against territory subsequently annexed : Bineman v. B. Co., 7 Neb., 310; 1 Dill., Mun. Cor., sec. 104; Phillips v. Albany, 28 Wis., 340; Davenport v. Dodge Co., 105 U. S., 237; Blair v. Ckming Co., Ill Id., 363. cited: 1 Dillon, Mun. Corp., 212; 77. S. v. Memphis, 97 U. S., 284; Powers v. Wood Co., 8 O. St., 285.

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

Tried below before Hamer, J. A creditor’s bill cannot be maintained unless there has been an action at law. (Weil v. Lankins, 3 Neb., 384; Weinland v. Cochran, 9 Id., 482, and cases; Crowell v. Lloracek, 12 Id., 625; Brush v. Kinsley, 14 O., 23; Pomeroy, Eq. Jur., sec. 1415; Tyler v. Peatt, 30 Mich., 63.) The decree for alimony was an order in personam and could not have been rendered upon service by publication.

Tried below before Marshall, J. The judge must decide on the admissibility of evidence. This often involves an inquiry into facts, and when it does, he alone determines it, the jury taking no part therein, and having no power to revise his findings.

<p>1. Murder: Indictment: Election of Counts. One count of the indictment charged the defendant and one S. with having purposely and of their deliberate and premeditated malice killed the deceased. Two other counts charge that the killing was done in an attempt to perpetrate a robbery upon the deceased. Held, That they charged the same offense and it was not necessary for the state to elect which count it would rely upon.</p> <p>2. --: Confessions: Admissibility. Where a prisoner, while under arrest and without threat, promise, or expectation of hopes or favor, voluntarily makes a confession, the same may be proven on the trial.</p> <p>3. -: —-: Severability. The jury is not bound to give every part of a confession the same credence, but they can accept one part as true and reject such portion as they believe from the evidence is untrue.</p> <p>4. -: Insanity: Burden of Proof. When insanity is relied upon as a defense and testimony has been introduced which rebuts the presumption that the defendant was sane, the burden is upon the state to establish by the evidence beyond a reasonable doubt that the accused was sane at the time of committing the act charged.</p> <p>5. -: -. Held, That the instructions fairly presented to the jury the issue of insanity.</p>

<p>The petition set out at length in the opinion, held, to state a cause of action.</p>

<p>cited, as to the instruction: State v. Stout, 31 Mo., 406; State v. Cushing, 29 Id., 215; State v. Mc-Davitt, 69 la., 549.</p> <p>cited on the same point: Sackett, Instructions [2d Ed.], sec. 3; Green v. Janey, 4 Com. Law, 524; Rudolph v. Lane, 57 Ind., 115; Bierbach v. Goodyear, 54 Wis., 208.</p>

<p>1. Schools: Change of District Boundaries: Notice. Under subdivision 1, section 4, chap. 79, Compiled Statutes, where a petition is presented to the county superintendent for a change in the boundaries of two school districts, it is indispensable that three notices, containing an exact statement of the proposed change and the time when the petition will be presented to the county superintendent, be posted in three public places, one of which places shall be upon the outer door of the school house, if there be one, in each district affected,.at least ten days prior to the time the petition is to be presented to the county superintendent.</p> <p>2. -: -: -: Proof of Posting. The affidavit of proof of posting such notices should state where each of the three were posted and the day of posting the same; and in a direct proceeding attacking the jurisdiction of the superintendent in the premises it is not sufficient to state that they were posted in three public places ten days before the presentation of the petition, but the time and place: of posting must appear.</p>

Tried below before Field, J. cited: JB. & M. JR. Co. v. York Co., 7 Neb., 487; JB.& M. R. Co. v. Young Bear, 17 Id., 670; Thompson v. Stetson, 15 Id., 112; B. & M. R. Go. v. Kearney Co., 17 Id., 515. cited, contending that the affidavits charging contempt were sufficient: Jordan v. Wapello County, 69 la., 177; Stark v. Williams, 18 Nev., 430; that the sufficiency of the original petition cannot now be .questioned: Cave May, etc., R. Co. v. Johnson, 35 N. J. Eq., 422..

<p>1. Administrator: License to Sell Rea» Estate: Proof.. One K-, a resident of Gage county, died in the year 1872. He-was owing considerable sums, and one T. was appointed administrator of his estate. There was but little personal estate except that granted to the widow and it became necessary to sell real estate. A petition was thereupon duly presented to JudgeGantt, who made an order to show cause why license should not be issued to sell such real estate. This order was duly published in one of the newspapers of Gage county. No sale toot ■ place under this order and a second order to show cause was-duly made by the same judge and published in the same manner as the first. Under this order the proof tended to show a license was granted by the judge, a sale had, which was afterwardsduly confirmed by him and a deed made to the purchaser. UCeldr That sufficient appeared by the record to show a valid sale of the real estate and that the purchaser thereunder acquired the-title of the decedent at his death.</p> <p>2. -: -: Parol Evidence. Where papers in a case have-been lost, as the license to sell real estate, proof that snch license or other papers actually existed at the time of the sale maybe shown by parol or other secondary evidence.</p>

<p>Error to the district court for Douglas county. Tried below before Wakeley, J. »</p> <p>cited: State, ex rel., Taylor, v. Supervisors, 64 Wis. 220; Sehend v. Aid Soo., 49 Id., 237; People v. Com’rs, 7 Wend. [N. Y.], 477; Com. Bank v. Canal Com’rs, 10 Id., 26; People ex rel. Lawrence, v. Supervisors, 73 N. Y., 173 ; People, ex rel. Qer. Am. L. & T. Co., v. Richards, 99 Id., 621; Peopie, ex rel. Sav. Bank, v. Cromwell, 102 Id., 481; People v. JR. W. & O. B. Co., 103 Id., 95; High, Ex. Leg. Rem., sec. 554.</p>

Tried below before Broady, J. The American rule is that upon sale to an agent, supposed to be a principal, the seller may look to the real principal for payment, unless latter has settled with the agent or the state of their account makes it inequitable to> hold the principal.

<p>Appeal from the district court for Richardson county. Heard below before Broady, J.</p> <p>Lincoln Land Co., cited : Spitznagle v. Vanhessch, 13 Neb., 338; Becker v. Anderson, 11 Id., 497.</p> <p>cited: Merriman v. Hyde, 9 Neb., 113; Wait, Eraud. Con., 146-7; Snell, Eq. [1st Am. Ed.], 35, 83; Perry, Trusts, 219, 220; 1 Story, Eq. Jur., secs. 108, 109, 4326 and 631; 2 Id., 1199; Frakes v. .Brown, 2 Blackf. [Ind.], 295.</p>

<p>Husband and Wife: Separate Funds: Estoppel: Creditors. A wife inherited considerable money from her father, which money she loaned to her husband without taking any evidence of indebtedness, and he invested the same as he saw fit. With a portion of the funds so loaned by his wife the husband opened and conducted a hotel in his own name as proprietor, and incurred debts for articles furnished in running the hotel. After such debts were contracted the husband made a bill of sale of the furniture and business of the hotel to his wife, but there was no change in the possession nor in the management of the business. Thereupon, a creditor of the husband for goods furnished to the hotel instituted proceedings by attachment, whereupon the wife brought an action of replevin and reclaimed the goods. Meld, That as the wife had permitted her husband to do business in his own name with her property and incur debts on the faith that he was the owner thereof, the rights of such creditors were superior to hers. (Boy v. McPherson, 11 Neb., 197.)</p>

<p>1. Larceny: Possession or Stolen Goods: Presumption Refuted. The possession of stolen property soon after the theft may be sufficient to warrant a conviction if no facts appear in evidence to repel the presumption of guilt. Where in a prosecution for the larceny of a horse a witness called for the state testified that he had seen the prisoner riding the horse alleged to have been stolen and inquired of him if he had been trading, whereupon he answered “Yes,” held, that this testimony must be submitted to the jury, and that an instruction which virtually withdrew it from the jury was erroneous.</p> <p>2. -: -: -. Where there is testimony tending to show that the accused came honestly by the property, and such testimony creates a reasonable doubt in the minds of the jury that he stole the property, he will be entitled to an acquittal. {Thompson v. People, 4 Neb., 529, 530.)</p>

<p>1. Exemptions: Head of Family: Wife of Absconded Husband Is. Where a husband has absconded from the state and the maintenance and support of the family thereby devolves upon the wife, and it appears that neither she nor her husband is the owner of lands, town lots, or houses, subject to exemption as a homestead, she, as the head of the family, is entitled in lieu thereof to goods of the value of $500.</p> <p>2. -: Appraisement: Oeeicer’s Duty. After the levy of an attachment upon exempt property the defendant filed an inventory of all her property as well as that of her husband, and claimed that the property was exempt under the provisions of section 521 of the Code. Beld, That it was the duty of the officer to call appraisers to appraise the property described in the inventory.</p>

Original application for mandamus, cited, as to the validity of the bonds: State, ex rel. Gregory, v:Soh. Dist. 13-Neb., 81; State, ex rel. Kimball, v. Soh. Dist. Id., 89; Hopper v. Soh. Dist., Id., 470; Soh. Dist. v. Holmes, 16 Id.,. 486. cited: State, ex reh Otto,v. Sch. Dist. 16 Neb., 182; Burroughs, Pub., Securities, 329, 331,

<p>1. Taxes: Exemption oe Internal Improvements Unconstitutional. The effect of the provisions of the “ act setting aside the revenue arising from the taxation of works of internal improvement to pay the bonds issued to construct or complete the same,” approved February 20, 1875, is to exempt the works of internal improvement within a precinct which has issued its bonds to aid in the construction of the same from paying any state, county, precinct, or school tax, until such bonds are paid, and is therefore in contravention of section 1 of article 9 of the constitution.</p> <p>2. -:-. The act, so far as it has the effect to exempt works of internal improvement from the payment of a school tax lawfully levied thereon, conflicts with that part of section 4, article 8, of the constitution, which provides * * * “andsuch other means as the legislature may provide, shall be exclusively applied to the support and maintenance of common schools in each school district in the state.”</p> <p>3. -: Constitutional Law: The Word “Means,” as used in said clause, includes moneys arising from annual donation for school purposes levied under legislative authority. (District Township of Dubuque v. County Judge, 13 la., 250; Crosby v. Lyon, 37 Cal., 242.)</p> <p>4. -: -. The act of February 20,1875, took effect prior to the adoption of the present constitution and was valid when passed. Its provisions are in force as to all internal improvement bonds issued by a township, precinct, city, or village, after the passage of the act and prior to the adoption of the constitution.</p>

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

<p>Error to the district court for Phelps county. Tried below before Gaslin, J.</p> <p>cited: 2 Morse, Banking [3d Ed.], 911, 931; Vickrey v. Sav. Ass’n, 21 Fed. Rep., 773; Carroll v. Bank, 30 W. Ya., 518; Saloy v. Bank, 39 La. Ann., 90; Cody a. Bank, 55 Mich., 379; Janes v. Milliken, 41 Pa. St., 328; 1 Daniels, Neg. Inst. [3d Ed.], sec. 340; Wood v. Bank, 129 Mass., 358; 2 Parsons, Cont. [7th Ed.], 743; Seligman v. Clothing Co., 69 Wis., 410; Bliss, Code PI., sec. 383; Wagner v. Stocking, 22 O. St., 297; Thrall v. Hotel Co., 5 Neb., 295; Ferguson v. Milliken, 42 Mich., 441; Shipman v. Lansing, 25 Iíun [N. Y.], 290; Phoenix Bank v. Risley, 111 U. S., 125; Wait, Fraud. Couv., sec. 280; Brown v. Herr, 21 Neb., 125; Hartman v. Biller, 62 Pa. St., 37; Confer v. McNeal, 74 Id., 115.</p> <p>cited: Bobbihs v. Oberman, 22 N. W. Rep., 357; Johnson v. Way, 27 O. St., 374; Lawrence v. Bank, 6 Conn., 521; 1 Morse, Banking, 326; Falkland v. Bank, 84 N. Y., 150.</p>

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

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

<p>Error to the district court for Dawes county. Tried below before Kinkaid, J.</p> <p>cited, as to the instructions : Paine v. Kohl, 14 Neb., 580; Eaton v. Carruth, 11 Id., 231; McPherson v. Wis-well, 19 Id., 117; as to the contract: State, ex rel. Garter, v. Sch. Disk, 22 IcL, 48; Iiazen v. Lerehe, 11 N. W. Rep., 413; Brown, v. Soh. Disk, 10 Atl. Rep., 119; Soh. Disk y. Iferoer, 9 Id., 64; Gottoway v. Ogden, 28 N. W. Rep., 764.</p> <p>cited: Everett v. Sch. Disk, 30 Mich., 249.</p>

<p>1. Taxes: Constitutional Limit. Under sec. 5, art. 9, of the constitution county authorities cannot assess taxes the aggregate of which shall exceed one and a half dollars per one hundred dollars valuation, unless authorized by a vote of the people of the county.</p> <p>2. County Warrants: Cannot be Issued Beyond Statutory Limit. As under the present statute each warrant must specify the amount levied and appropriated to the fund upon which it is drawn, and the amount already expended of such sum, and any warrant drawn after seventy-five per cent of the amount levied for the year is exhausted, where there are no funds in the treasury for the payment of the same, shall not be chargeable against the county, it will be impossible for any county to issue warrants in excess of the amount authorized by the statutes now in force without amending such statutes.</p> <p>3. Statutes: Amendment: Constitutionality. An act not complete in itself, but clearly amendatory of a former statute to which it does not refer, is within the constitutional inhibition and void. (Smails v. While, 4 Neb., 353; Sovereign v. State, 7 Id., 409.)</p> <p>4. County bonds: Issue: Submission to People. The legislature has authority to pass a law to authorize the county board of any county of the state “to issue bonds of the county to an amount not exceeding three per cent of the assessed valuation of the county'for the year 1890, and not exceeding the sum of $20,000, for the purpose of raising money to purchase grain to - be planted and sown for the purpose of raising crops for the year 1891, and for feeding teams used in raising said crops.” The question of issuing such bonds must be submitted to the people in the mode provided in sections 27 and 28, art I, chap. 18, Compiled Statutes, and they cannot he issued on a mere petition for the issuance thereof signed hy a majority of the electors of the county.</p> <p>5, Special legislation. Under sec. 15, art. 3, of the constitution no special law can be enacted where a general law can he made applicable.</p>

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

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

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

<p>1. Conveyances: Parol Promise of: Enforcible After Part Performance. In 1879 one F., being possessed of 120 acres of land in this state, proposed to a married daughter and her husband that if they would remove on to forty acres of the land, build a house thereon, and break up and cultivate the same, and pay the taxes, they could have the land. In pursuance of this promise the daughter and her husband moved upon the land, broke up and cultivated the same, and erected a house thereon, which is their home. In an action of ejectment by the father against the daughter and her husband the foregoing facts were pleaded as an equitable defense to the action, and the j ury having returned a verdict in favor of the daughter, held, that the verdict was sustained by the clear weight of evidence.</p> <p>2. -: -: -. Where a father makes a parol promise to a child to convey to him or her a tract of land if the latter will move on to the same, erect a house thereon, and break up and cultivate the land, all of which is done in reliance upon the promise, equity will enforce the agreement.</p>

<p>Continuance: Absent Witnesses. Where a motion for a continuance of a cause, made in the district court by a defendant on account of the absence of a co-defendant as a witness, is supported by affidavit which sets out specifically what facts the witness would testify to and that there was no other person by whom the facts could be proven, and it appearing that the testimony is material under the issues, that diligence has been used to obtain it in time for the trial, and that such testimony can he procured by the next succeeding term of court, held, that the continuance should be granted.</p>

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

<p>1. Judgment: Cancellation: Burden of Proof. In an action by a judgment debtor to cancel a judgment obtained against him on the ground of payment, the burden is upon him to prove that the judgment has been paid.</p> <p>2. The evidence in the case sustains the findings of the district court.</p>

<p>Error to the district court for Holt county. Tried below before Norris, J.</p> <p>cited: Preston v. Spaulding, 10 N. E. Rep., 903; Winner v. Hoyt, 28 N. W. Rep., 380; Prout v. Vaughn, 52 Yt., 457; Miners’ Rank App., 57 Pa. St., 199; Richmond v. Mills, 11 S. ~W. Rep., 960; Ronns v. Carter, 22 Neb., 518; Kellogg v. Richardson, 19 Fed. Rep., 70.</p> <p>cited: Grimes v. Farrington, 19 Neb., 45; Ronns v. Carter, 20 Id., 575; Davis v. Scott, 22 Id., 157.</p>

<p>Error to the district court for Butler county. Tried below before Post, J.</p> <p>cited s Cooley, Torts, 52; McPherson v. Wiswell, 26 N. W. Rep., 916; Maxwell, PI. & Pr., 431; Omaha Horse By. Co. v. Doolittle, 7 Neb., 486.</p>

Apeal from the district court for Douglas county. Heard below before Wakeley, J. cited: Bonus v. Carter, 20 Neb., 566; Winner v. Hoyt, 28 N. W. Rep., 380; 1 Story, Eq. Jur. [13th Ed.], 296; Id., 300, 301 and note (4). cited: Pomeroy’s Eq. Jur., secs, 959, 1051, 1077 and cases cited: Bunker v. Miles, 30 Me., 431; Tynes v. Grim-stead, 1 Tenn. Ch,, 508; Marshall v. Joy, 17 Yt., 546; Grumley v. Webb, 44 Mo., 444; Nenendorff v.'Ins.

<p>Original application for mandamus.</p> <p>cited: Stale v. Weatherby, 17 Neb., 554; Stough v. Sch. Dist., 4 Id., 361; State v. Sah. Dish, 10 Id., 551; Jibrrow v. Wood, 35 Wis., 59; Trustees v. Van Alien, 87 111., 303; Rulison v. Post, 79 Id., 567; Murphy v. Board of Directors, 30 la., 429; Perkins v. Board of Directors, 56 Id., 476; State v. Mizner, 50 Id., 145.</p> <p>Sewell v. Board of Education, 29 O. St., 91; Board of Education v. Minor, 23 Id., 211; Stewart v. Southard, 17 O., 402; Donahue v. Richards, 38 Me., 378; Hodgkins v. Rockport, 105 Mass., 475; Downer v. Lent, 6 Cal., 94; Hines v. Lockport, 50 N. Y., 236; Mills v. Brooklyn, 32 Id., 489; In re Church St., 49 Barb. [N. Y.], 455; Jordan v. Hanson, 49 N. IT., 199; Gregory v. Burke, 37 Conn., 365; Wilson v. Mayor, 1 Den. [N. Y.], 599; Kendall v. Stokes, 3 Plow. [U. S.], 87 ; Ramsey v. Riley, 13 O., 157; Draper v. Noteware, 7 Cal., 276; Steele v. Dunham, 26 Wis., 393 ; Shipley v. Bank, 10 Johns. [N. Y.], 484; People v. Stevens, 5 Hill [N. Y.], 616; Peoplev. Judge, 21 Wend. [N. Y.], 20; People v. Supervisors, 11 N. Y., 563; People v. Judges, 1 Doug. [Mich.], 319; St. Luhe’s Oh. v. Slaelc, 7 Cush. [Mass.], 226; James v. Com., 13 Pa. St., 72; Trustees v. Van Allen, 87 111., 303; State v. Webber, 108 Ind., 31; State v. Mizner, 50 la., 145.</p>

<p>Appeal from the district court for Platte county. Heard below before Marshall, J.</p> <p>contending that remedies at law should first have been exhausted : McConnell v. Dichson, 43 111., 99; Bigelow v. Andress, 31 Id., 322; McDowell v. Cochran, 11 Id., 31; McDermutt v. Strong, 4 Johns. Ch. [N. Y.], 689; Stone v. Manning, 2 Scam. [111.], 531; Manchester v. McKee, 4 Gilm. [111.], 511; Adsit v. Sanford, 23 Hun [N. Y.], 45.</p> <p>cited, in reply to the contention: Drake, Attachment, see. 225; 3 Pomeroy, Eq. Jur., sec. 1415; Cornell v. Radioay, 22 Wis., 264; Bech v. Burdett, 1 Paige [N. Y.], 305; Keene v. Sallenbaah, 15 Neb., 200!</p>

<p>1. Liquors: License: Remonstrance: Default. On April 20, 1890, application was made to the trustees of the village of Diller for a license to one C. to sell intoxicating drinks. On the 30th of the same month a remonstrance, signed by a number of persons, against the issuing of license, was filed with the trustees. The trustees thereupon set May 10,1890, at 8:30 P. M., for the hearing of the remonstrance. At the time set the parties appeared, but no proof was offered to sustain the remonstrance. Thereupon the trustees overruled the same and issued the license. Held, That so far as the record disclosed, the trustees had acted in good faith and will not be ordered to cancel the license.</p> <p>2. -: -: -: Bona Fides. About 5 P. M., of the day set for the hearing of the first remonstrance, the relator and others filed a second remonstrance in which they alleged that the applicant was not a man of good character and standing, etc. Held, That the proof was of so conflicting a character as to leave the matter in doubt whether or not the second remonstrance was filed in good faith, and if so, what, if any, proof was offered to sustain the charge.</p>

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

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

<p>1. Sale: Breach oe Contract for: Measure of Damages. Where the seller of personal property fails and refuses to deliver the same to the buyer, the measure of damages for a breach ‘ of contract is the difference between the contract price and the market value of the property at the time and place where it should have been delivered,</p> <p>2. The cross-petition, set out at length in the opinion, held, not to state a cause of action.</p>

<p>Error to the district court for Boone county. Tried below before Harrison, J.</p> <p>cited, as to the agister’s lien: Guthman v. Kearn, 8 Neb., 502.</p>

Heard below before Chapman, J. cited: Irish v. I/undin, 28 Neb., 8-1. cited, contending that the Improve-Company was estopped by the conduct of its officers from denying the liens: Buck-staff v. Dunbar, 15 Neb., 114; McCormick v. Lawton, 3 Id., 149.

<p>Mandamus: Eelator a Private Citizen: Demand Necessary. It is indispensable to demand of the party, if a private individual, against whom application for mandamus is to be made, to perform the duty before the action is commenced. (Tut-ton v. Eberhardt, 14 Neb., 201.)</p>

<p>1. Sale: Fraud: Rescission: Tender or Price: The general rule is that a party who seeks to rescind a contract entered into on fraudulent representation, must return or offer to return the property acquired by such contract within a reasonable time, so as to place the property and the adverse party substantially in the same condition as at the time the property was received. There are some exceptions to this rule, however.</p> <p>2. -: Case Stated. One S. sold goods to B. upon the representation that he (B.) was entirely free from debt, that the goods in his store were paid for and that he was in the habit of discounting his bills and would pay the same within ten days, whereupon goods to the amount of 5500 were sold, to him by S. In ten days from the date of the purchase B. paid 5100, and soon afterwards executed a mortgage for a large amount to his brother and surrendered possession thereunder of his goods. Attachments, etc., were thereupon levied upon the goods, whereupon S. brought an action of replevin to recover the goods previously sold by him, and on the trial paid into court the amount of money paid by B. on the purchase, less the value of the goods sold by B. Held, That as there was uncertainty as to the amount of said goods sold by B., and as the offer to pay the residue of the 5100 was made on the trial, and as soon as the amount was ascertained, it was within a reasonable time.</p>

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

court for Richardson county. Heard below before Appelget, J. Injunction is the proper and only adequate remedy. [Bolton v. MoShane, 25 N. W. Rep. [Ia.], 135; Normand v. Otoe County, 8 Neb., 21; Poirier v. Fetter, 20 Kan., 47.) An action of trespass would settle nothing. [Davis v. Londgreen, 8 Neb., 43; Tamer v. Stewart, 17 Rep., 53; Wilson v. Mineral Point, 39 Wis., 160; Maxwell, PI. & Pr. [4th Ed.], 547-52.) Appellant’s adverse possession for fifteen years should prevent…

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

<p>Error to the district court for Butler county. Tried below before Post, J.</p> <p>cited, as to waiver by pleading over and appeal: Pottinger v. Garrison, 3 Neb., 223; Farrar v. Triplett, 7 Id., 237; Mulhollan v. Sooggin, 8 Id., 202; Irwin v. Nuekolls, 3 Id., 441; People v. B. Co., 39 How. Pr. [N. Y.], 51; Goodrich v. Omaha, 11 Neb., 204. As to amendment: Mills v. Miller, 3 Neb., 87; Hammond v. P. Co., 49 la., 450; Hays v. Turner, 23 Id., 214; Seevers v. Hamilton, 11 Id., 86 ; Williams v. Miller, 10 Id., 344 ; Busch v. Haqenrick, 10 Neb., 415.</p> <p>cited, contending that a new cause of action could not be set up by amendment: ■Shinners v. Brill, 38 Wis., 648; Clarke v. R. Co., 5 Neb., 318-19; Frickett v. Cohu, 1 N. Y. Sup., 436; St'ate v. Turner, 96 N. C., 416; Norris v. Pollard, 75 Ga., 358; Pfeiffer v. Hunt, Id., 513; Sturges v. Botts, 24 Mo. App., 282; Hammond v. Place, Harr. [Mich.], 438; Givens v'. Wheeler, 6 Col., 149; Woodruff v. Dickie, 5 Rob. [N. Y.], 620; Dows v. Green, 3 How. Pr. [N. Y.], 377 ; Sheldon v. Adams, 27 Id., 182; Lottman v. Barnett, ■62 Mo., 170; Lackner v. Turnbull, 7 Wis., 95; Newtonv. Allis, 16 Id., 210; Sweet v. Mitchell, 15 Id., 709; Larkin >v. Noonan, 19 Id., 93; Stevens v. Brooks, 23 Id., 199; Board Supervisors v. Decker, 34 Id., 380.</p>

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

<p>Error to the district court for Cuming county. Tried below before Norris, J.</p> <p>cited: Qrcmt v. Cropsey, 8 Neb., 208.</p> <p>cited : Skinner v. Beynick, 10 Neb., 324; Kruger v. Harvester Co., 9 Id., 526; Horton v. Davis, 26 N. Y., 495; Flennedy v. Brown, 61 Ala., 296; Smith v. Graham, 34 Mich., 302; Johnson v. Thompson, 129 Mass., 398; Parkinson v. Sherman, 74 N. Y., 88; Freeman v. Auld, 44 Id. 50; Comstock v. Smith, 26 Mich., 306.</p>

<p>Grarnishment: Foreign Judgment a Bar. Where a debtor has been compelled to pay a debt by garnishee proceedings in a court of a sister state haying jurisdiction of the subject-matter and the parties, such payment constitutes a complete defense to a subsequent action brought-in this state by the original creditor against the garnishee for the same indebtedness.</p>

<p>Cities: Streets: Change of Grade: Damages. A city is liable under the constitution of this state to a lot owner for such damages as he may sustain by filling in the street in front of his lot above the level of the same, when the buildings were erected on the lot before any grade was established. (Harmon v. City of Omaha, IT Neb., 548.)</p>

<p>1. Fraudulent Conveyances: Husband and Wipe. One M. and. wife, in June, 1881, removed to W., in this state, the * wife being possessed of about $4,000 in money which she permitted her husband to deposit in a bank in his own name and check out at pleasure. M. thereupon proceeded to purchase certain lots, took a deed therefor in his own name and erected* thereon a large frame building having two store-rooms on the-ground floor and tenement apartments on the second floor, some of which were occupied by M. and wife. In May, 1882, one S. loaned M. $500 on a promise to return the same in a few days. In October or November afterwards, M. and wife conveyed the-property in question, without consideration, to the mother of the wife of M., who afterwards conveyed to said wife, who now-claims to own the same and as a homestead. S. reduced his-claim to judgment, and an execution thereon having been returned unsatisfied, a creditor’s bill was filed to subject the property in question. Held, That the equity of the creditor was superior to that of the wife.</p> <p>2. -¡Homestead. As the testimony showed that the property was occupied as a homestead when the debt was centracted and. still is so occupied, that only the excess of $2,000 will be applied, on the judgment.</p>

<p>Error to the district court for Pawnee county. Tried below before Brclydy, J.</p> <p>cited: Hedman v. Anderson^ 6 Neb., 392; Smith v. Schmitz, 10 Id., 601; JBollman v. Lucas, 22 Id., 797; Beds v. Flynn, 28 Id., 575; Lapham v. Marshall, 51 Hun [N. Y.], 36; Bothell v. Grimes, 22 Neb., 526; Flwood v. May, 24 Id., 373; 8 Am. & Eng. Eucy., 753.</p> <p>cited: Smith v. Schmitz, 10 Neb., 601; Lininger v. Herron, 18 Id., 453; Feigley v. Feigley, 61 Am. Dec., 376; Freeman v. Hartman, 45 111., 57; Davidson v. Little, 22 Pa. St., 245; Kuykendall v. McDonald, 57 Am. Dec., 217.</p>

Tried below before Field, J. A notary public has no other authority than that conferred by secs. 6 and 7, cli. 61, Comp. Stats. He has no power to fine. (Rapalje, Contempts, p. 10; Kreiger’s Case, 7 Mo.

<p>Error to the district court for Douglas county. Tried below before Doane, J.</p> <p>cited, as to the construction of the two instruments: Goodrich v. Me Clary, 3 Neb., 130; Tootle v. Elgutter, 14 Id., 159; Nidle v. State Bank, 13 Id., 246; Collingwood v. Merchants’ Bank, 15 Id., 121; Delaney v. Linder, 22 Id., 280; Cortelyou v. Maben, Id., 700; Greenleaf, Ev., sec. 277; Edwards v. Clement, 45 N. W. Rep. [Mich.], 1107 ; Begg v. Forbes, 30 Eng. L. & Eq., 508; Etting v. Bank, 11 Wheat. [U. S.], 74; Bank v. Dana, 79 N. Y., 108 ; Edelman v. Yealcel, 27 Pa. St., 26.</p> <p>cited : Shamp v. Meyer, 20 Neb., 223, and cases; Bassett v. Hughes, 43 Wis., 319; Martin v. Martin, 3 Pin. [Wis.], 272, 275; Bowen v. Crow, 16 Neb., 556, 558; Story, Contracts, secs. 535; Bliss, Code PI., sec. 91.</p>

Heard below before Wakeley, J. The act is unconstitutional and is not authority for the proceedings in this case. (Jones v. Com’rs, 5 Neb, 561; Clother v. Maher, 15 Id., 6; Reeves v. Treasurer Wood Co., 8 O. St., 339; Harward v. St Clair, 51 111., 133-4; Cypress Rond v. Hooper, 2 Mete. [Ky.], 350; Hallenbech v. Hahn, 2 Neb., 399.) The proceedings of the county boards were not sufficient to give them jurisdiction to levy the assessments.

<p>Error to the district court for Washington county. Tried below before Clarkson, J.</p> <p>cited: Teeumseh v. Phillips, 5 Neb., 310; While v. TAneoln, Id,, 505; Boggs v. Washington County, 10 Id., 300; State v. Pierce County, Id., 476; Dx parte Thomason, 16 Id., 238; Holmberg v. Hauch, Id., 337 ; Messenger v. State, 25 Id., 674; State v. Judge, 2 la., 282; Davis v. State, 7 Md., 151; Connor v. Mayor, 5 N. Y., 293; Sun 3Iut. L. Ins. Co. v. Mayor, 8 Id., 253 ; Statev. Silver, 9 New, 227; Cooley, Const. Lira., 174-5.</p> <p>cited: Max'well, Crim. Pro., 79; Bishop, Statutory Crimes, sec. 363.</p>

<p>1. Contract: Consideration. Mutual promises are sufficient consideration to make a valid contract.</p> <p>2. -: Rescission. A party to a contract is not entitled to a rescission when he is unwilling to perform his part of the agreement.</p> <p>3. -: Evidence examined, and held, not sufficient to show that the plaintiff signed the contract under duress.</p> <p>4. -: Specific Performance. Reid, That the defendant is entitled to a specific execution of the contract referred to in the opinion.</p>

Original proceeding in nature of quo warranto. The naturalization of Joseph Boyd, the father, in 1890 did not make respondent a citizen. (Dryden v. Swinburne, 20 W. Ya., 89; State v. Adriano, 92 Mo., 70; Gumm v. Hubbard, 97 Id., 311; State v. Penney, 10 Ark., 621; O’Connor v. State, 9 Fla., 234; U. S. v. Keller, 13 Fed. Rep., 82; Heney v. Brooklyn, etc., Soc., 39 N. Y., 333, 335-6.) He could not become a citizen by relation. (In re Robert Desty, 8 Abb.

Original proceeding in nature of quo warranto. A justice of the peace is a township officer, and a vacancy in the office must be filled by the town board. (Comp. Stats., 1887, ch. 18, art. 4, secs. 19, 47; sec. 19, p. 318; sec. 7, p. 387; so held of supervisor, State v. Taylor, 26 Neb., 580.) Relator was entitled to hold until his successor was elected and qualified.

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

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

Tried below before Chapman, J. cited, contending that it would have been error to give the instruction asked : Sheldon v. Williams, 11 Neb., 275; Range v. Brown, 23 Id., 826; Herron v. Cole Bros., 25 Id., 704; Sloan v. Coburn, 26 Id., 608 ; Converse v. Meyer, 14 Id., 190 ; Sandwich Mfg. Co. v. Shiley, 15 Id., 111.

Tried below before Wakeley, J. Necessaries are defined as “anything reasonable that the wife should enjoy.” (Attaioay v.' Hamilton, 3 C. P. Div., 393.) Legal services in divorce cases are necessaries for which the husband may be liable. (Porter v. Briggs, 38 la., 166; Gossett v. Patten, 23 Kan., 340; MeCurley v. Stockbridge, 50 Am. Rep., 229.) Nearly all the cases holding a contrary doctrine are where the wife was plaintiff in the divorce case.

<p>See former report for contentions of counsel.</p>

Tried below before Doane, J. Under a general denial, any evidence which tends to' disprove a fact necessary to recovery, under the cause of action set forth, should be received. (Broadwater v. Jacoby, 19 Neb., 79; Howard v. Hayward, 82 Mass., 356; Sohermerhot'n v. Van Allen, 18 Barb. [N. Y.], 31; Wheeler v. Billings, 38 N. Y., 264; Miller v. Ins. Co., 1 Abb. N. C. [N. Y.], 476; Boomer v. Koon, 6 Hun [N. Y.], 645; Schwarz v. Oppold, 74 N. Y., 307; Gilbert v. Cram, 12 How.

<p>1. Chattel Mortgages: Lien: Duration: Refiling. As be tween the parties to a chattel mortgage the lien thereby created continues so long as there is a subsisting debt, which cah be enforced in the courts. The filing or refiling of a chattel mortgage, as required by statute, is for the protection of creditors and tona fide purchasers without notice, and not for the purpose of continuing the lien as between the parties to the mortgage.</p> <p>2. -: Rights of Mortgagor. Upon the testimony in the record the mortgagee is shown to be entitled to the security to the extent of the debt which the mortgage was given to secure.</p>

Tried below before Field, J. cited, as to the first instruction discussed in the opinion : Phil. R. Co. v. Boyer, 97 Pa. St., 94 ; Baker v. Fehr, Id., 70; City of Lincoln v. Walker, 18 Neb., 244-50; Tohnan v. Syracuse, 98 N. Y., 198. As to the second instruction discussed: Wharton, Neg., sec. 918; Cooley, Torts, 342, 344, 346, 349; Bex v. Huggins, 2 Ld.

Tried below before Hopewell, J. Defendant’s possession was without claim of right and might have continued indefinitely, without tolling the right of entry of the owner in fee. (Ewing v. Burnet, 11 Pet., 41; Slcinner v. Crawford, 54 la., 119; Colvin v. R. V. Land Ass’n, 23 Neb., 80.) Being without the necessary intention which makes it adverse, it will be presumed to continue as it began.

<p>Garnishment: Money Due From Sheriff on Contract Not in Custodia Legis. L. & Co. having recovered judgment in a justice’s court against L. M. for $104.25, and execution having been issued and returned no goods found whereon to levy, affidavit and notice of garnishment were made and served on T. H. B., who appeared and answered, and by which it appeared that he was the sheriff of the county, and had in his hands $62 due to the judgment debtor for the pasturage and keep of certain live stock taken in execution by the sheriff, and sold at the suit of the K. Nat. Bank v. R. M., and which money was part of the proceeds of the sale. Held, That the judgment of the district court affirming that of the j ustice discharging the garnishee on the ground that the sheriff’s money was custodia legis, and not subject to garnishment, was error. The judgment reversed, and judgment for the amount with interest entered against the garnishee.</p>

<p>Error to the district court for Cedar county. Tried below before Kinka.id, J.</p> <p>cited: Murfree, Sheriffs, sees. 839-40.</p>

Ebrob, to the district court for Nance county. Tried below before Post, J. cited, in addition to cases discussed.jn opinion: Jones, Mtges., sec. 722; Parkman v. Welch, 19 Pick. [Mass.], 231; Beuster v. Me Camus, 14 Wis., 333; Kelley v. Whitney, 45 Wis., 110; Stevens v. Cooper, 1 Johns. Ch. [N. Y.],425; Guión v. Knapp, 6 Paige [N. Y.], 35; Benton v% Nicoll, 24 Minn., 221; Warner v. Be Witt, etc., Bank, 4 Bradw. [111.], 305 ; Hall v. Edwards, 43 Mich., 473; McPIughv.

Tried below before Gaslin, J. The city’s liability is now res adjudieata. (Foxworthy v. Hastings, 25 Neb., 133; Weave v. Fitchburg, 110 Mass., 334; Joliet v. Verley, 35 111., 64.) The biased remarks of the juror, vitiate the verdict. (Thornton, Juries, sec. 438; Harrison v. Price, 22 Ind., 1650

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

<p>Error to the district court for York county. Tried below before Noryal, J.</p> <p>cited: Flinn v. Canton Co., 17 Am. Rep., 606; Dooley v. Meriden, 26 Id., 433; Evans v. City of Utica, 25 Id., 165; Dewire v. Bailey, 41 Id., 422; Chicago v. Martin, 49 111., 242; Maxwell, PI. &Pr., 447; Hilliard, New Trials, 504; Montgomery v. Wright, 47 Am. Rep., 423.</p> <p>cited cases' referred to in opinion.</p>

<p>Error to the district court for Platte county. Tried below before Post, J.</p> <p>cited: Van Gelder v. Hallenbeck, 2 N. Y. Supl., 252.</p> <p>cited: Rogers v. Burns, 27 Pa. St., 525; Gatewood v. Palmer, 10 Humph. [Tenn.], 466; Thompson v. Monrow, 2 Cal., 99; Douglass v. McCoy, 24 "W. Ya., 722; Galbraith v. Walker, 95 Pa. St., 481.</p>

<p>Findings: Trial to Court. When an action at law is tried to a court without a jury, the finding of fact by such court is a substitute for, and stands in lieu of, a verdict of a jury, and need be no more specific than the verdict of a jury upon the same pleadings and evidence. (Bansdell v. Putnam,, 15 Neb., 642.)</p>

<p>Homestead: Mortgage : Failure of Wife to Acknowledge. Where a mortgage was given by a married man upon several parcels of real property, including the homestead of the mortgagor upon which he then resided with his family, and the wife of the mortgagor, then occupying the homestead with him, did not acknowledge the mortgage before any officer authorized to take acknowledgment of deeds, in an action brought by an assignee of the said mortgage, held, that the mortgage created' no lien upon the homestead.</p>