Volume 33 — Nebraska Reports

<p>1. Husband and Wife: Trusts: 'Assignment por Creditors. A. A., a widow who had received a homestead and other property as a bequest from her deceased husband, married L. C. A. and allowed him to sell the homestead and buy other lands with the proceeds, taking the title in his own name, which he also sold, and upon buying the third or fourth farm, at the request of A. A., the title was taken in the name of A. A. and L. C. A., as tenants in common. Afterwards, L. C. A. traded the farm, of the value of $1,400, for a stock of groceries, and A. A. joined in the deed of the farm upon the promise of L. C. A. to pay her the one-half of the consideration received by him therefor. L. C. A. proceeded to carry on trade upon the said stock of groceries, and in such trade contracted debts, which, being unable to pay, made an assignment under chapter 6, Comp. Stats. In an action by A. A. against the assignee to establish her claim against the estate of L. C. A., held, that she could recover.</p> <p>2. Evidence considered, and held, to sustain the verdict and judgment, except as to the excess required to he remitted.</p>

<p>Error to the district court for Boone county. Tried below before Tiffany, J.</p> <p>cited: Peter v. Compton, 1 Smith’s Lead. Cas. [8th Am. Ed.], 614; Brown, Stat. of Frauds [4th Ed.], 332; 3 Parsons, Cont. [6th Ed.], 39, 57; Stone v. Dennison, 13 Pick. [Mass.], 1.</p> <p>cited: Connolly v. Giddings, 24 Neb., 131; Walker v. JR,. Co., 1 S. E. Rep. [S. Car.], 336; Bullock v. Turnpike Co., 3 S. W. Rep. [Ky.], 129; R. Co. v. Scott, 10 S. W. Rep. [Tex.], 99; 1 Addison, Cont. [Am. Ed.], 318, sec. 212.</p>

<p>1. Bill of Exceptions: Failure of Judge to Sign. Excuses for the failure of the judge, before whom a cause was tried, to sign a bill of exceptions which is not signed, cannot be considered as a reason for sustaining the bill.</p> <p>2. -: -. A bill of exceptions must be authenticated in some of the modes provided by law to authorize a reviewing court to act upon it. If a judge refuses to settle and sign a a bill duly presented to him for that purpose, the court, in a proper case, will compel action on his part and endeavor, as far as possible, to save the rights of the parties, but it cannot give credence to an unsigned bill.</p> <p>3. Petitions set out in the opinion, liberally construed, state a cause of action, and alter verdict will be sustained.</p>

<p>Rehearing of case reported 28 Neb., 39.</p> <p>For a synopsis of the briefs of counsel see former report. In addition to the cases there given :</p> <p>cited: White Lake Lumber Co. v. Russell, 22 Neb., 129; Yearsley v. Flanigen, 22 Pa. St., 491; Odd Fellows’ Hall v. Masser, 24 Id., 510.</p> <p>cited: Davis b. Livingston, 29 Cal., 283; Walker v. Hauss Hijo, 1 Cal., 184; Bottemly v. Grace Church, 2 Id., 90; McCormick v. Water-works, 40 Id., 185; Dudley v. R. Co., 30 Am. & Eng. R. Cases [Mich.], 236; Oppenheimer v. Morrell, 12 Atl. Rep. [Pa.], 307; 2 Jones, Liens, secs. 1234, 1235, 1251, 1352, 1634, 1672; Knapp v. R. Co., 6 Mo. App., 205; Perkins v. Pike, 42 Me., 141; Willemette T. & M. Co. v. Remide, 1 Ore., 169; Odd Fellows’ Hall v. Masser, 64 Am. Dec. [Pa.], 675; Zeigler v. Galvin, 45 Hun [N. Y.], 44; Jones v. Walker, 63 N. Y., 612; Foster v. Dohle, 17 Neb., 631; Marrenger v. Paxton, Id., 634; Hommel v. Lewis, 104 Pa. St., 465; Power v. McCord, 36 111., 214; C. & St. L. R. Co. v. Watson, 85 Id., 531.</p>

<p>1. Error of Proceedings: Motion eor New Trial. In order to review the proceedings in the trial of an equity cause by petition in error, a motion for a new trial must he filed in the district court the same as in an action at law.</p> <p>2. ■-•: -. The failure to file such a motion is.not sufficient grounds for dismissing the petition in error.</p>

<p>Original application for mandamus.</p> <p>cited: Ciarle v. Dayton, 6 Neb., 192; State v. Gathers, 22 Id., 792.</p> <p>cited : U. P. R. Co. v. Buffalo Co., 9 Neb., 452; B. & M. R. Co. v. Clay Co., 13 Id., 370; Rogers v. -Walsh, 12 Id., 30; Blair v. Lantry, 21 Id., 259; 15 Am. & Eng. Ency. Law, 1222.</p>

<p>Error to the district court for Valley county. Tried below before Tiffany, J.</p> <p>cited, as to the motion for a new trial: Tidd’s Prac., marginal, p. 911, and cases; Sperry v. Dickinson, 82 Ind., 138; Graham v. Henderson, 35 Id., 195; Easton v. Calendar, 11 Wend. [N. Y.], 96; Richards v. Walton, 12 Johns. [N. Y.], 434; Gray v. Richardson, 18 Pick. [Mass.], 417; Shirley v. Lunenburg, 11 Mass., 384; Smelters v. Rainey, 14 O. St., 288; Buckingham v. Bank, 21 Id., 131; Blanchard v. Gregory-, 14 O., 415. As to the jurors: Curry v. State, 4 Neb., 549; Brunell v. R. Co., 5 Id., 453.</p> <p>cited, as to the motion for a new trial: Real v. Hollister, 20 Neb., 112; 17 Id., 661; Wiggenhorn v. Kountz, 23 Id., 691; Long v. Clapp, 15 Id., 424; Dutcher v. State, 16 Id., 33; Dunn v. Gibson, 9 Id., 513; Feeney v. Mazelin, 87 Ind., 229; Estey v. Burke, 19 Id., 87; Teters v. Hinders, Id., 93; Fichbredt v. Angerman, 80 Id., 208; Bank v. Colter, 61 Id., 153; Robertson v. Gartshwiler, 81 Id., 463; Boyd v. Anderson, 102 Id., 221; Sperry v. Dickinson, 82 Id., 138; Thompson, Trials, sec. 2721; Boldt v. Budwig, 19 Neb., 739, 746. As to the jurors: Bohanan v. State, 18 Neb., 57. As to the sixth instruction: Rogers v. Millard, 44 la., 466; Sackett’s Instruction to Juries [2d Ed.], 22; Thornton’s Instructions to Juries, sec. 201; Union Ins. Co. v. Buchanan, 100 Ind., 63; Bowers v. Thomas, 22 N. W. Rep. [Wis.], 710;. Flanders v. Cottrell, 36 Wis., 564; Stetler v. R. Co., 49 Id., 609; Marschuetz v. Wright, 50 Id., 175, 178; Hoffman v. Gordon, 15 O. St., 211; Chamberlain v. R. Co., Id., 250; Hogg v. Mfg. Co., 5 O., 410; Pugh v. Callotoay, 10 O. St., 493; Scott v. Sheakly, 3 Watts [Pa.], 50. As to the separation of the jury: Abbott’s Trial Brief, 183, 184; Warner v. R. Co., 52 N. Y., 437; Tyrrel v. Lock-hart, 3 Blackf. [Ind.], 136; Reitenbaugh v. Dudwick, 31 Pa. St., 131; Bolster v. Cummings, 6 Me., 85; Sutliff v. Gilbert, 8 O., 405; Mason v. Massa, 122 Mass., 477* Brown v. Dean, 123 Id., 254 ; Maclin v. Bloom, 54-Miss., 365.</p>

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

<p>Error to the district court for Buffalo county. Tried below before Hamer, J.</p> <p>cited: Duke v. Brandt, 51 Mo., 221 — 226; Moore v. Kent, 37 la., 20.</p> <p>cited: Peed v. Whitney, 7 Gray' [Mass.], 533; Lobdell v. Hayes, 4 Allen [Mass.], 186; Hopkinson v. Dumas, 42 N. EL, 296; Hamlin v. Hamlin, 19 Me., 144; Beebe v. Lyle, 73 Mich., 114; WhitaeJcer v. Vansehoiaek, 5 Ore., 113; Farnum v. Loomis, 2 Id., 29; Cornog v. Cornog, 3 Del. Ch., 414; Bush v. Bush, 5 Id., 144; Latham v. MeLain, 64 Ga., 320; Woodhull v. Reid, 1 Har. [N. J.], 128 ; Hamilton v. Hughes, 6 J. J. Mar. [Ky.], 581; Heed v. Ford, 16 B. Mon. [Ky.], 114; Gulley v. Ray, 18 Id., 107; Worsham v. Callison, 49 Mo., 206; Morse v. Thorsell, 78 111., 600; Steele v. Magie, 48 Id., 396; Greenbaum v. Austrian, 70 Id., 591; Glenn v. Clark, 53 Md., 580.</p>

<p>Error to the district court for Stanton county. Tried below before Norris, J.</p> <p>cited, as to the description: Price v. Comas, 21 Neb., 198; Wiley v.Shars Id., 716.</p> <p>cited, as to the wife’s agency: Moffitt v. Oressler, 8 la., 122; Wood Mach. Co. v. Grow, 30 N. W. Rep. [la.], 609; Furman v. R. Co., 17 Id., 599; McLaren v. Hall, 26 la., 297; Miller v. Hollingsworth, 33 Id., 224; 9 Am. & Eng. Ency. of Law, 839, sec. 3.</p>

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

<p>Appeal from the district court for Lancaster county. Pleard below before Field, J.</p> <p>cited: Johnson v. Hahn, 4 Neb., 139; Feet v. O’Brien, 5 Id., 362; Pettit v. Blank, 8 Id., 59, 123; JLynam v. Anderson, 9 Id., 378; Miller v. Hurford, 13 Id., 13; Cooley, Taxation, 13, 359, 364;, Neb. City v. Gas Co., 9 Id., 346, and cases.,</p> <p>cited: Kittle v. Shervin, 11 Neb., 67; Cooley, Taxation, 300; JLynam v. Anderson, 9 Neb., 379; Clother v. Maher, 15 Id., 6; State v. Graham, 17 Id., 45; Wood v. Helmer, 10‘ Id., 68; Turner v. Althaus, 6 Id., 54; Otoe Co. v. Brown, 16 Id., 400.</p>

<p>Error to the district court for Holt county. Tried •below before Kink aid, J.</p> <p>cited: 5 Am. & Eng. Ency. of Law, 25, 26, and cases; Pierce v. Jung, 10 Wis. 25; Jaquith v. Hudson, 5 Mich., 123; IÁnde v. Thompson, 2 Allen [Mass.], 456; Easton v. Canal Co., 13 O., 79; Cushing v. Drew, 97 Mass., 445; Ryan v. Martin, 16 Wis., 59; 1 Sutherland, Damages, 475-530; Brennan v. Clark, 29 Neb., 385.</p>

<p>Error Proceedings: Time. Final judgment was rendered on the 8th day of July, 1890, and transcript and petition in error filed in the supreme court on the 9th day of July, 1891. Held, That the proceedings in error were not commenced in time. ■</p>

Tried below before Groff, J. cited, as to the pre-existing debt as a consideration, cases referred to in the opinion. As to the release of the indorser: Smith v. Worman, 19 O. St., 150; Clark v. Barnes, 34 N. W. Rep. [la.], 419; Gilchrist v, Gough, 63 Ind., 576; Craft v. Russell, 67 Ala., 9; Soule v. Shotwell, 52 Miss., 238; Gibson v. Connor, 3 Kelly [Ga.], 47; Bank v, Wallace, 12 N. E. Rep. [O.], 439; Daniel, Neg.

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

Ereoe to the district court for Saunders county. Tried below before Post, J. cited, on the question of contributory negligence: Pa. R. Go. v. Aspell, 23 Pa. St., 147; G., B. & Q. R. Co. v. Hazzard, 26 111., 373; C., B. & Q. R. Co. v. Dewey, Id., 255; Burrows v. R. Co., 63 N. Y., 556; Bon v. Ry. Pas.

<p>1. Review: Motion for New. Trial: The Assignment in a. motion for a new trial, of errors of law occurring at the trial, is sufficient to entitle a party to review the rulings of the district court on the admission or rejection of testimony.</p> <p>2. Evidence: Collection Registers or loan registers are inadmissible in evidence as books of account.</p> <p>3. Witnesses: Refreshing Memory. A witness may refresh his-memory from a memorandum made at or near the time the transaction mentioned in it took place, even though the memorandum was not made by himself, if, after seeing it, he has a personal recollection of the facts therein stated, and can testify of them of his own recollection.</p> <p>4. -: -. Such memorandum is admissible without the corroborating testimony of the person who made the same, if beyond the reach of the process of the court, his whereabouts being unknown, upon proof of his handwriting.</p> <p>6. Evidence: Error Cured. Error cannot be predicated upon the exclusion of testimony, where it is subsequently received in, evidence.</p> <p>6. Principal and Surety: Bond Guaranteeing Payment of Notes. The firm of W. & W. gave a bond to L., with sureties,, by the terms of which the sureties guaranteed the payment, thirty days after their maturity, of all notes secured by chattels or real estate, which W. & W. should sell to L. Held, That the-sureties are not liable for the payment of any note transferred by their principals to the obligee in the bond, for a consideration other than money at the time paid or promised to be paid.</p> <p>7. Instructions: Non-Prejudicial Error. A verdict will not be set aside for the giving of an instruction uncalled for by the evidence, if not prejudicial to the rights of the party complaining.</p> <p>8. --: Inference. When a material fact may be inferred from the testimony in a case, it is proper to submit such inference to the jury by instruction.</p> <p>9. -. Held, No reversible error in the charge of the court.</p>

Tried below before Field, J. Objections to the jurisdiction of a sheriff’s jury are not waived by an appeal from their award. (Schroeder v. R. Co., 44 Mich., 387 ; Slough v. R. Co., 33 N. W. Rep. [Ia.], 149; Kannev.

<p>Executions: Injunction Denied. A petition in equity alleged! that the plaintiffs therein commenced an action against J. P. G., constable, to recover possession of specific chattel property before a justice of the peace; that thereafter, by stipulation between the parties to said action, the same was continued “until the case of <?. W. L. et al. v. N. Sheriff, then pending in the district court, should be finally determined, and it was. further stipulated that the said justice of the peace should then render judgment in said cause in accordance with the judgment of the district court in said cause of G. W. L. el al. v. iV. JET.; that thereafter the said justice of the peace, unlawfully and without jurisdiction, or any notice to plaintiffs, rendered a judgment in said cause in favor of defendant therein, J. P. G., and against the plaintiffs for a return of said property or for the value thereof, assessed at $164.25, and costs $12.15; that the said cause of G. W. L. el al. v. N. S. was tried in the district court, with judgment for the defendant, but which judgment was afterwards reversed upon error in the supreme court; that a transcript of. said judgment rendered by the justice of the peace was filed in the district court of G. county and entered upon the records of said court, and execution was issued thereon directed to the defendant W. C., sheriff of D. county; that said sheriff then had said execution and threatened to levy on the property of the plaintiffs to satisfy the same, with prayer for injunction, etc. On error for the sustaining of a demurrer to the petition, held, that the petition does not state facts sufficient to constitute a cause of action.</p>

<p>Error to the district court for Richardson county. Tried below before Appelget, J.</p> <p>cited: Bonus v. Carter, 20 Neb., 566; Wellington v. Went-worth, 8 Met. [Mass.], 548; 1 Addison, Torts, 497; St. John v. O’Connell, 7 Port. [Ala.], 466; Yale v. Saunders, 16 Yt., 243; Perry v. Corby, 21 Fed. Rep. [Mo.], 737; Winner v. Hoyt, 28 N. W. Rep. [Wis,], 380; Brown v. Work, 30 Neb., 800.</p> <p>cited: Miller v. Finn, 1 Neb., 288; Clark v. Tennant, 5 Id., 557; Ahlman v. Meyer, 19 Id., 66; West. Ins. Co. v. Putnam, 20 Id., 334; Brown v. Hurst, 3 Id., 356; Seymour v. Street, 5 Id., 89; Blackburn v. Ostrander, Id., 219; Converse v. Meyer, 14 Id., 191; Everett v. Hobleman, 15 Id., 376; McCormick v. Loughran, 16 Id., 89; Durrell v. Hart, 25 Id., 610; Maxwell, Just. Prac. [5th Ed.], 603; Faulkner v. Meyer, 6 Neb., 414; Taylor v. Ryan, 15 Id., 579; Nelson v. Garey, Id., 535; Fletcher v. Daugherty, 13 Id., 224; Langdonv. Buel, 9 Wend. [N. Y.], 80; Brown v. Phillips, 3 Bush [Ky.], 656; Hopkins v. Thompson, 2 Port. [Ala.], 433; Holmes v. Sprowl, 31 Me., 73; Pratt v. Harlow, 16 Gray [Mass.], 379; Worthington v. Hanna, 23 Mich., 530; Peckinbaugh v. Quillin, 12 Neb., 586; Hamilton v. Lau, 24 Id., 59; Bonns v. Carter, 20 Id., 566.</p>

<p>Negotiable Instruments: Fraudulent Transfer by Bailee: Bona Fide Purchaser. A promissory note made by R. in favor of F. was secured by a mortgage on real estate. About tbe time the note became due the payee indorsed it in blank and delivered it to one S. to effect a trade with a third party. S. did not effect the trade but disposed of the note for his own benefit to one W. for goods for about two-thirds of its face value. Afterwards the maker and payee of the note entered into an agreement by which it was paid in full and the mortgage discharged. Afterwards W., the purchaser of the note from S. and who had possession of the same, brought an action thereon against F. as indorser. Held, That as the indorser had clothed S. with apparent authority to dispose of the note, that the indorser was bound by this action of S.; but as he had disposed of the same in fraud of the rights of his employer, the transferee could recover only the amount paid with interest thereon.</p>

<p>1. Attorney’s Lien: Paramount to Set-Off. The lien of an attorney upon a judgment obtained by him to the extent of his reasonable fees and disbursements, is paramount to any rights of the parties in the action or to any set-off.</p> <p>2: -: Reasonable Fees. The question of what were reasonable fees, having been put in issue and determined by the trial court, held, that the evidence sustained the judgment.</p>

<p>Partnership: Profit Sharing: Creditors. One R. entered into partnership with Van H. & Co. in the business of buying stock, Van H. & Co. to furnish the money, and the profits and losses to be equally divided between the parties. R. purchased several car loads of fat cattle, which were paid for by Van H. & Co., and sold the same, but before payment a creditor of R. sought by legal proceedings to appropriate the money to the payment of his claim, whereupon Van H. & Co. filed a petition of intervention in which they set up the facts in relation to the partnership. Eeld, That the proof sustained the petition for intervention, and that there was a partnership, but failed to show any profits to R. in the transaction, and therefore nothing which could be applied to the claim of H.</p>

<p>1. Chattel Mortgages: Clause Allowing Seizure by Mortgagee. A clause in a chattel mortgage providing that the mortgagee may, at any time he feels insecure, treat the debt as due and take and sell the property, will not authorize the seizure and sale of the property unless the mortgagor is about to do, or has done, some act which tends to impair the security.</p> <p>2. The evidence examined, and held, not to sustain the verdict and judgment.</p>

<p>Adverse Possession: Tax Liens. Where a person has been in the actual, open, exclusive, adverse possession of lands as owner for ten years he thereby acquires an absolute title in fee, free from the lien created by a tax deed on the property issued more than ten years prior to the commencement of the action to foreclose such tax deed. (D’Qeite v. Sheldon, 27 Neb., 829; Alexander v. Wileox, 30 Id., 793.)</p>

<p>Error to the district court for Holt county. Tried below before Hopewell, J.</p> <p>cited: Hansen v. Berthelsen, 19 Neb., 433; Merriam v. Hyde, 9 Id., 120; Hughes o. Davis, 40 Cal., 117; 1 Jones, Mortgages, 336, 339,1108; White v. Lucas, 46 la., 319; Cowing v. Rogers, 34 Cal., 648; Campbell v. Dearborn, 109 Mass., 130; Westlalce v. Horton, 85 111., 228 ; McCarthy v. McCarthy, 36 Conn., 177; Kemper v. Campbell, 44 O. St., 210; Woods v. Shields, 1 Neb., 453; Renard, v. Brown, 7 Id., 454; Kent’s Com., 134; Borrowseale v. Tuttle, 5 Allen [Mass.], 377; Perine v. Dunn, 4 Johns. Ch. [N. Y.], 142; Bishop v. Paine, 11 Yes. [Eng.], 199 ; Cholmley v. Countess, 2 Atk. [Eng.], 267; Foote v. Gibbs, 1 Gray [Mass,], 413; Durant v. Essex Co., 7 Wall. [IT. S.], 107; Wells, Res Adjudícala, sec. 455; Freeman, Judgments, sec. 270; Soh. Dist. v. Brown, 10 Neb., 441; Baird v. Kirtland, 8 O., 21; Buchan v. Sumner, 2 Barb. Ch. [N. Y.], 199.</p> <p>cited: Kyger v-. Ryley, 2 Neb., 27; Gregory v. Hartley, 6 Id., 356; Hansen v. Berthelsen, 19 Id., 433; Merriam v. Hyde, 9 Id., 120; Neafie v. Neafie, 11 Am. Dec. [N. Y.], 380;- Loudenbach v. Collins, 4 O. St., 251; Smith v. Auld, 1 Pac. Rep. [Kan.], 626; Taylor v. Larkin, 49 Am. Dec. [Mo.], 119; Smith v. McNeal, 109 IT. S., 426; McMillan v. Richards, 9 Cal., 365; Goodenow v. Ewer, 16 Id., 461; Green v. Fisk, 103 U. S., 519; Colcord v. Fletcher, 50 Me., 401.</p>

<p>Error to the district court of Gage county. Tried below before Broady, J.</p> <p>cited: Seeord v. JR. Co., 18 Eed. Rep. [Minn.], 221; 3 "Wood Ry. Law, p. 1505, sec. 392; Robinson v. R. Co., 7 Gray [Mass.], 92; Mad River R. Co.v. Barber, 5 O. St., 568; Summersell v. Fish, 117 Mass.. 312; Wharton, Negligence, [2d Ed.], sec. 237.</p>

<p>Error to the district court for Franklin county. Tried below before Gaslin, J.</p> <p>cited: Foster v. Dohle, 17 Neb., 631; Marrener v. Paxton, Id., 634; MeCormicIc v.'Lawton, 3 Id., 449; Meyers v. Le Poidevin, 9 Id., 536; Lawton v. Case, 73 Ind., 60; Simpson v. Dalrymple, 11 Cush. [Mass.], 308; Willard v. Magoon, 30 Mich., 273; Clark v. Sohatz, 24 Minn., 303; Wilcox v. Kieth, 3 Ore., 372; Carey v, Wintersteen, 60 Pa. St., 395; Davis v. Alvord, 94 U. S., 545; Phillips, Mechanics’ Liens [2d Ed.], secs. 18, 338, 387, 403, 428.</p>

<p>1. Mechanics’ Liens: Foreclosure: Petition Liberally Construed. In an action by a material-man to foreclose a mechanic’s lien it was alleged that “in pursuance of said verbal contract the plaintiff furnished said material to the said defendant A. C. Winan for the erection of said house on and between October 10,1887, and December 23, 1887, for the sum of $394.57, in the aggregate. ” Held, That, construing the allegations of the petition liberally, it was to be inferred that the materials so furnished were used in the construction of the building.</p> <p>2. -: Foundation oe the Eight. The right of a material-man to a lien upon a building, does not result from the contractor being an agent of the owner, but from having furnished such contractor materials which were used in the erection of the building.</p>

<p>1. Instructions: Review. There being a conflict of testimony upon material points in the case, the testimony was properly submitted to the jury, and the verdict is supported by the weight of evidence.</p> <p>2. -. Where the court had given full instructions upon the issues involved in the case, it is not error to refuse to give additional instructions.</p>

<p>Error to the district court for Valley county. Tried below before Tiffany, J.</p> <p>cited: Brewer v. Wright, 25 Neb., 305.</p>

<p>1. Bills of Exceptions: Extending Time eor Filing. The Code authorizes the court to grant forty days from the final adjournment of the court in which to prepare a bill of exceptions. If this time is insufficient, the court, or a judge thereof, may extend the time in which to prepare such bill an additional forty days. If the j udge before whom the cause was tried is absent from his district, another judge of the same district where there are two or more, may make an order extending the time.</p> <p>2. --: -. "Where the orders extending the time do not exceed eighty days from the adjournment of the court sine die, this court will not review the action of the judge in extending the time.</p> <p>3. -: Amtdavits used on a hearing in the district court must be preserved in a bill of exceptions to be available in the supreme court.</p> <p>4. Review. There being no material error in the proceedings, the judgment is affirmed.</p>

<p>1. Offices: Vacancies: Construction oe Statutes. Where a law creating an office specifically provides' how vacancies occurring in such office shall be filled, such provision, and not the general law on the subject of vacancies, governs and controls the method of filling vacancies in such office.</p> <p>2. County Attorney: Vacancy. Where a vacancy occurs in the office of county attorney, it is the duty of the county board to fill the same by appointment, and the appointee will hold his office until a successor is elected and qualified.</p> <p>3. -: Election. A county attorney can only be elected at a general election held in even numbered years.</p>

<p>Error to the district court for Buffalo county. Tried below before Church, J.</p> <p>cited, as to the effect of the transfer: Jones, Chat. Mortgages, sec. 503; Ramsdell v. Tewksbury, 73 Me., 197; Crain v. Pain, 4 Cush. [Mass.], 483. As to measure of damages : Kerr v. Drew, 90 Mo., 147, and cases; Booth v. Ableman, 20 Wis., '21; Seaman v. Luce, 23 Barb. [N. Y.], 240; MoNorton v. Akers, 24 la., 370.</p> <p>cited: Mundy v. Whittemore, 15 Neb., 649.</p>

<p>Debtor and Creditor: Claims Assumed by Third Party: Compromise with Creditors. S. was engaged in the mercantile business, and being largely indebted to wholesale houses for his stock of goods, sold out his business to W. & H., who gave their three promissory notes as part of the purchase price. In order to secure the payment of the amounts due the creditors of S., by agreement of all the parties, including W. & H., the notes were placed in a hank at Auburn as trustee, with a list of the creditors and the amount due each, with instructions to use so much of the money paid to the hank on the notes as was necessary to pay the creditors of S. Subsequently H., without the knowledge of S., compromised with the wholesale men by discounting their claims. In an action by S. on two of the notes it was held, that H. was entitled to he credited only with the amounts actually paid by him in settlement of the claims.</p>

<p>Error to the district court for Douglas county. Tried below before Clarkson, J.</p> <p>cited, contending that the motion to quash constituted a general appearance: Porter v. C. & N. W. P. Go., 1 Ñeb., 15; Crowell v. Galloway, 3 Id., 220; Aultman v. Steinan, 8 Id., Ill; Bell v. Olmsted, 18 Wis., 71-5.</p> <p>cited: Carlisle v. Corran, 2 S. W. Rep. [Tenn.], 26; Bellv. Olmsted, 18 Wis., 75-80; Freeman v. Burks, 16 Neb., 328; Cleghorn v. Waterman, Id., 226.</p>

<p>1. Elections: Registration. The city of N. is a city of the second class having more than 2,500 inhabitants, and is divided into four wards. The city is within N. precinct, which is six miles square and contains, outside of the city, about 300 voters. The county board has organized the territory above described,, into a voting precinct, the votes to be cast in the city of N. Held, That the powers of a board of registration of the city of N. did not authorize such board to register any voter outside of the city limits.</p> <p>2. -: Polling Places. That every legal voter of the precinct is entitled to vote at the place provided for that purpose by the county board, although such place may be within the limits of • a city of the second class; and where there is more than one voting place in such city, he may vote at any one of them.</p> <p>3. -: -: County Board Must Provide. It is the duty of the county board to provide a suitable number of polling places to accommodate the voters of the county, and no doubt the board may be compelled, in a proper proceeding, to provide proper facilities.</p>

Tried below before Broady, J. ' Strunk and Lipp should not have been allowed to intervene. (Bennett v. Whitcomb, 25 Minn., 148; Cornell College v. Iowa Co., 32 Id., 520; Harwood v. Quimby, 44 Id., 385; Van Qorden v. Ormsby, 55 Id., 657; Kimbro v. Clark, 17 Neb., 403.) Nor should they have been permitted to file and be heard upon their motion to discharge the attachment. The court erred in discharging the attachment.

<p>1. Specific Performance: Waiter of Benefits Under a Decree. One W. brought an action against C. for specific . pferformance of a contract for the sale of land. He alleged in his petition that “on the 2d and 12th days of October, 1882, he paid the installments of both principal and interest, due in three and four years after said last mentioned date, at the office of Russell & Holmes,” etc., and had duly performed the conditions of the contract on his part. The court rendered a decree of specific performance in his favor, whereupon he withdrew the money placed with Russell & Holmes for O. Held, An abandonment of the benefit of the decree.</p> <p>2. --: -. In this case the court will not consider whether or not Russell & Holmes are liable to C. for the money.</p> <p>3.’-: — : -: Costs. The court below granted W. relief on the condition that he pay the amount with seven per cent interest to the clerk of the court within sixty days. Held, That as C. was entitled to the consideration for the land without further cost, that W. must pay interest at the contract rate, all costs in both courts, and the sum of one hundred dollars to Cheney’s attorneys.</p>

<p>1. Real Estate: An Agreement for the Exchange of real estate, to be enforced specifically, must be mutual in its character and certain in its terms. These are indispensable requisites to the granting of relief. Where the testimony is conflicting as to the terms of a verbal contract for the exchange of lands, the finding of the court thereon will be upheld, unless it is clearly wrong.</p> <p>2. A contract to be'enforced must be just and fair in all its parts and not a hard or unconscionable bargain.</p>

<p>1. Appeal: Identity of Issues: The Petition examined, and held, to state the same cause of action sued on in the court from which the appeal was taken.</p> <p>2. Continuance: Error in Denying: Cured. When amotion for the adjournment of a cause for a specified time is overruled, and the trial does no.t take place until the period asked for has elapsed, the error, if any, in not granting the motion in the first instance, is cured.</p>

<p>Assignment for Creditors: Conveyance to Assignee: Mandamus to Sheriff. Where, after an assignment is made to a sheriff for the benefit of the creditors of the assignor, the creditors choose an assignee to -succeed the sheriff in snch trust, who qualified by entering into an undertaking as required by law, it is the duty of the sheriff to immediately execute and deliver to such assignee a deed of quitclaim of all real estate conveyed by the assignment, and in default thereof mandamus will lie to enforce the performance of the duty.</p>

<p>1. Tax Liens: Foreclosure: Limitations. An action to foreclose a tax lien must be brought within five years after the cause of action accrued.</p> <p>2. -: -: -: Case Stated. The plaintiff on November 5,1877, purchased certain real estate at tax sale and on May 10, 1880, he surrendered the certificate of purchase, and received a tax deed for the land, which was invalid for defects apparent upon its face. On the 23d day of January, 1890, suit was instituted to enforce a lien for taxes paid. Held, That the action was barred.</p>

<p>1. County Court: Bill of Exceptions. In a term case in a county court the authority to prepare a bill of exceptions, in any case where such bill is authorized, continues during the entire term without any order of the judge extending the time, and he may sign a correct bill at any time before the term closes.</p> <p>2. -: -: Attachment. Section 236e of the Code, which authorizes the filing of a petition in error upon an order of a court discharging an attachment, is general in its application and applies to all courts having jurisdiction in civil actions. Therefore a county judge may sign a bill of exceptions in any case where an attachment has been discharged by him.</p>

Original application for mandamus. cited, contending that evidence aliunde as to the vote was not admissible: B. & M. R. Co. v. Lancaster Co., 4 Neb., 307; Eddy v. Wilson, 43 Vt., 362; Soh. List. v. Atherton, 12 Met. [Mass.], 105; Morrison v. Lawrence, 98 Mass., 219; 1 Dillon, Mun.

<p>Error to the district court for Johnson county. Tried below before Broady, J.</p> <p>cited, contending that the contract was entire: Onthbertson v. Ins. Co., 96 N. Car., 480, 487; Hinman v. Ins. Co., 36 Wis., 159, 169; Schumitsch v. Ins. Co., 48 Id., 26, 30; Plath v. F. Ins. Ass’n, 23 Minn., 479; Carver v. Ins. Co., 69 la., 202, 204; Bowman v. Ins. Co., 40 Md., 620, 632; Biggs v. Ins. Co., 88 N. Car., 141; Russ v. Ins. Co., 29 Up. Can., Q. B., 73; Havens v. Ins. Co., Ill Ind., 90, 96, 97; Qottsman v. Ins. Co., 56 Pa. Sfc., 210; Agri. Ins. Co. v. Montague, 38 Mich., 548, 551; Barnes v. Ins. Co., 51 Me., 110; Lovejoy v. Ins. Co., 45 Id., 472; Hartshorne v. Ins. Co., 50 N. J. L., 427 ; Hathaway v. Ins. Co., 64 la., 229; Brunswick Sdv. Inst. v. Ins. Co., 68 Me., 313 ; Lee v. Ins. Co., 3 Gray [Mass.], 583; Kimball v. Ins. Co., 8 Id., 34, 38; Brown v. Ins. Co., 11 Cush. [Mass.], 280; Moore v. Ins. Co., 28 Gratt. [Ya.], 508.</p> <p>cited: Clark v. Ins. Co., 6 Cush. [Mass.], 342; Howard v. Ins. Go., 3 Denio [N. Y.], 301; Manley v. Ins. Co., 1 Lans. [N. Y.], 20; Stetson v. Ins. Co., 4 Mass., 330; Com. Ins. Co. v. Spankneble, 52 111., 53; West Branch Ins. Co. v. Helfenstein, 40 Pa. St., 289; JEtna Ins. Co. o. Tyler, 16 Wend. [N. Y.], 385; Ayres v. Ins. Co., 17 la., 176; Scanlon v. Ins. Co., 4 Biss. [U. S.], 511; State Ins. Co. v. Schreck, 27 Neb., 527.</p>

Tried below before Field, J. cited, contending that a bill of exceptions was not necessary: Belcher v. Skinner, 28 Neb., 91; Freeman v. Burks, 16 Id., 328; Cook v. Hester, 21 Id., 369; TJ. P. B. Co. v. Smersh, 22 Id., 751. cited: Change of venue; Maxwell’s Justice Prac., 49 ; Bank of Cleveland v. Ward, 11 O., 128 ; Davis v. Rivers, 49 la., 435; Hall v. Barnes, 82 111., 228 ; Sloan v. Smith, 3 Cal., 410; People v. Wright, 5 How. Pr. [N. Y.], 23.

Tried below before Clarkson, J. cited, contending that on an information drawn under sec. 113a, Criminal Code, the accused could not be convicted of robbery : 2 Bishop, Crim. Law, sec. 1166; 1 Wharton, Crim. Law, sec. 854; 2 Archibald, Crim. Prac. & PI., 1290; Shinn v. State, 64 Ind., 13; McCloskey v. People, 5 Parker, Crim. Rep. [N. Y.], 305. cited, as to- the definition of larceny: 2 East, P. C., 553; Hickey v. State, 23 Ind., 21.

<p>1. Bastardy: Degree op Evidence Required. In a prosecution for bastardy a preponderance of the evidence is sufficient to justify a conviction, and the defendant may be found guilty upon the unsupported evidence of the complainant.</p> <p>2. -: Review. Held, That there was no error in the charge of the court, and that the instructions denied were properly refused.</p> <p>3. -: Evidence: An Oeeer or Compromise made by a defendant in a bastardy proceeding, not accepted, is not admissible in evidence. The rule does not exclude the admission of particular facts tending to show guilt.</p> <p>4. -: -: Marriage. Where the complainant has testified that she was unmarried at the beginning of the action, it is proper to prove, on cross-examination, any fact or circumstance tending to show that she was married when the suit was instituted.</p> <p>5. -: -. Testimony that the complainant had sexual intercourse with men other than the defendant, outside the period of gestation, is inadmissible to evidence.</p>

<p>1. Liquors: License: Application: Signers After Publication of Notice. After a petition for a liquor license was filed with the city clerk and notice thereof was given, the city council permitted other freeholders to sign the petition. Held, No error, and that it was not necessary to republish the notice after such amendment.</p> <p>2. -: -: -: The Evidence examined, and held, that the application for a license was signed by the requisite number of qualified petitioners.</p> <p>3. -: -: Applicant Disqualified by Prior Violation OF Law. Where, on the hearing of a remonstrance against the granting of a liquor license, it is satisfactorily proven that the applicant has, within a year, sold intoxicating liquors to a minor, or has, during the same period, sold adulterated liquors, the applicant is not entitled to a license.</p> <p>4. -: -: -: Proof. Such violations of the law may be established by the records of a court showing the conviction of the applicant, or by any other competent evidence.</p> <p>6. -: -: The Objection that there was no ordinance in force authorizing the granting of a saloon license, cannot be raised for the first time in the supreme court.</p>

<p>1. Res Adjudicata: How Pleaded. The party relying upon a former adjudication as a defense must aver in his answer in what court the judgment was rendered, and plead facts showing that the recovery was upon the same subject-matter and between the same parties, or their privies, as the suit in which the defense of res adjudicata is made, and that the judgment is in full force.</p> <p>2. -: -. The failure to allege when the former adjudication was had will not invalidate the plea, although it is good ground for a motion to make more definite and certain.</p> <p>3. -: The Answer construed, and held, to state sufficient facts to constitute a bar to the action.</p> <p>4. Fraud: Avoiding Judgment: Pleading. In order to avoid a judgment on the ground of fraud in obtaining it, the facts constituting the fraud must be pleaded and proved.</p>

Heard below before Morris, J. If security and note are taken expressly as payment, a lien for the account is lost, notwithstanding the statute. ('McCoy v. Quick, 30 Wis., 521; Crooks v. Finney, 39 O. St., 57; Rose v. Persse, 29 Conn., 256; 2 Jones, Liens, 1518, 1519.) Security accepted as payment waives the lien. (Kinzeyv.

<p>Appeal from the district court for Hamilton county. Heard below before Tiffany, J., sitting for Norval, J.</p> <p>cited, as to the account: 2 Perry, Trusts, p. 474, sec. 821; Blauvelt v. Ackerman, 23 N. J. Eq., 495; Albertson v. State, 9 Neb., 431; Taylor, Ev., 344; Powell’s Ev., 294; 1 Green!., Ev.,sec. 79; Christy v. Douglas, Wright [O.], 485; Abbott, Trial Ev., 461; 1 Wait, A. & D., 193-4; Langdon v. Roane, 6 Ala., 518. As to the construction of the contract: 2 Pom., Eq. Jur., p. 480-2, secs. 957, 958; Story, Agency, sec. 210; Catron v. Shepherd, 8 Neb., 315, 316; Masters v. Freeman, 17 O. St., 323; May v. Babcock, 4 O., 334; Sch. Dist. v. Estes, 13 Neb., 53; Harbach v. Miller, 14 Id., 13.</p> <p>cited, as to the construction of the contract: 2 Parsons, Contracts, 547, 548,550; Qreenstine v. Borchard, 50 Mich., 434; Haney v. Cady, 3 Id., 431; Brovm v. Smith, 11 Reporter [N. Y.], 510; Hinnemann v. Rosenbach, 39 N. Y., 100; Long v. R. Co., 50 Id., 76; Wiggin v. Goodwin, 63 Me., 389; Ripley v. Paige, 12 Vt., 353; Fitchburg v. Lunenburg, 102 Mass., 358; Elliott v. Weed, 44 Conn., 19; Cockburn v. Alexander, 6 M., G. & C. [Eng.], 814; Kirk v. Hartman, 63 Pa. St., 97; McCormick' v. Huse, 66 111., 315; Wharton, Contracts, 658; Abbott’s Trial Ev., 485; Blackmer v. Davis, 10 Reporter [Mass.], 365; Colleger. Charlesworth, 54 Mich., 523; Olson v. Ins. Co., 29 N. W. Rep. [Minn.], 125; Barney v. New-comb, 6 Cush. [Mass.], 56. As to what are profits: Jones v. Davidson, 2 Sneed [Tenn.], 447; Andrews v. Boyd, 5 Greenl. [Me.], 203; People v. Supervisors, 4 Hill [N. Y.], 23; Masterton v. Mayor of Brooklyn, 7 Id., 62; Shea v. Donahue, 15 Lea [Tenn.], 160; Lindley, Partnerships, 791, 806.</p>

Eerob to the district court for Douglas county. Tried below before Doane, J. The plaintiff is entitled to interest, under the statute. (Whitwell v. Willard, 1 Met. [Mass.], 216; Sweet’s Law Die., title “Account”; Anderson’s Law Die., title “Account,” and cases; Rensselaer v. Reid, 5 Cowan [N. Y.], 587; Beclc v. Devereaux, 9 Neb., 109.) Aversion to the taking of interest has prevailed generally among nations in a low stage of civilization. (Ency.

<p>Usury: How Pleaded. An answer setting up the defense of usury must state'the particular facts oí the alleged agreement in order that the court may see that it was in violation of the statutes of the state. It is not sufficient to allege that the “ bond * * was given in payment of usurious interest by,a contract for the payment of the same.”</p>

<p>1. Wills: Description: Mistake. An error in the description in a will, either of the legatee or of the subject-matter of the devise, will not avoid the will if sufficient remain to show with reasonable certainty what was intended.</p> <p>2. -: -: -. Where a testator devised lots 4 and 9 and the west one-half of 10 in block 32, in the city of Lincoln, and he was not the owner of lot 4, but did own lots 3, 9, and the west one-half of 10, and those were all the lots possessed by him in that block, 'held, that lot 3 passed by the will.</p> <p>3. -: Bona Fide Contestants: Costs Taxed to Estate. Where an estate of considerable value was devised to the wife of the testator and her children, and the children of the testator by a former marriage were practically disinherited, and sufficient grounds existed to justify them in contesting the will, the costs anda reasonable attorney’s fee to the attorneys for the contestant will be taxed to the estate.</p>

<p>Error to the district court for Douglas county. Tried below before Doane, J.</p> <p>cited: Livermore v. Rhodes, 27 How. Pr. [N. Y.], 506; Young v. Cooper, 12 Neb., 616; Drake, Attachment, sec. 75, and cases; Rosenfteld v. Howard, 15 Barb. [N. Y.J, 546; Reed® v. Noxon, 48 111., 323; Rosenthal v. Wehe, 58 Wis., 621; 1 Wade, Attachment, sec. 98, and cases; Stone v. Coveil, 29 Mich., 359.</p>

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

<p>Parol Evidence: A Written Contract Cannot be Waived, qualified, or contradicted by parol evidence of a prior or contemporaneous agreement between tbe parties.</p>

Heard below before Harrison, J. contending that the burden was upon the city to establish the facts as to the resolution: Hassett v. Chirtis, 20 Neb., 162; Donovan v. Fowler, 17 Id., 247; Maxwell’s PI. & Pr., 127; Garrison v. Aultman, 20 Neb., 311; Aultman v. Leahey, 24 Id., 289; Flummer v. Shellhorn, Id., 535. cited: Maxwell’s PI. &.Pr., pp. 128, 130; Guthmanv. Guthman, 18 Neb., 105; Natl. Ins.

<p>Party Walls: Agreement Binds Purchasers. An agreement between adjoining owners in relation to a party wall erected on tbe division lines of tbeir lots is binding on the parties and those who purchase subject to such agreement, and creates an equitable charge upon the lots.</p>

<p>1. Vendor and Vendee: Action for Purchase Money. One H. owned certain real estate which he sold to P. and H. for $20,000. P. was to have an undivided one-third part and H. . two-thirds. *P. gave his check to H. for $300, and afterwards' gave another check for $1,700, which, with other obligations, completed his portion of the payment. H. contends that thereupon he agreed with P. to return the checks in question to him, provided he would reconvey one-half of his interest in the land, while P. contends that the checks were cashed by him, he paying $1,700 for them. In an action by H. against P. to recover the face value of the checks, held, that the action was not one to enforce a parol contract for the sale of real estate, but to recover the purchase money.</p> <p>2. Tbe verdict is sustained by the clear weight of evidence.</p> <p>3. Remarks of an attorney held to be improper, but as the verdict is right it will not be set aside.</p>

<p>Error to the district court for Otoe county. Tried below before Chapman, J.</p> <p>cited, as to the fourth and fifth instructions: Paine v. Kohl, 14 Neb., 580; Marled v. Moudy, 11 Id., 219; Eaton v. Carruth, Id., 234; Kersenbrock v. Martin, 12 Id., 376; U. P. R. Co. v. Ogilvy, 18 Id., 639; Morse v. Traynor, 26 Id., 599; Beitrich v. Hutchinson, 20 Id., 52; Merredith v. Kennard, 1 Id., 312; Harrison v. Baker, 15 Id., 46; Howell v. Sewing Mach. Co., 12 Id., 184; Matthewson v. Burr, 6 Id., 321; Steele v. Russell, 5 Id., 215; Camp v. Sturdevant, 16 Id., 695; Newton Wagon Co. v. Biers, 10 Id., 291; Galloway v. Hicks, 26 Id., 536; Fitzgerald v. Meyer, 25 Id., 82; McPherson v. Wiswell, 19 Id., 117.</p>

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

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

<p>Error to the district court for Gage county. Tried below before Appelget, J.</p> <p>cited: Muldoon v. Levi, 25 Neb., 459; U. P. B. Co. v. Mavston, 22 Id., 721.</p> <p>cited: Oppenheimer v.. McClay, 30 Neb., 654.'</p>

' Appeal from the district court for Buffalo county. Heard below before Hamer, J. cited, contending that mutuality was not required in unilateral contracts': Pomeroy, Spec. Perf., sec. 169, and notes; Moses v. M’Clain, 2 S. Rep. [Ala.], 742, 744; Hall v. Center, 40 Cal., 67; R. Co. v. Flanagan, 3 Am. St. Rep. [Ind.], 675; Crawford v. Payne, 19 la., 172.

<p>1. See syllabus of tbe original opinion.</p> <p>2. Res Gestae: False Representations: Signers to Petition eor Railroad Bond: Election Induced By. Where, in the course of the canvassing and electioneering to induce a sufficient number of freeholders of a certain town to become signers of a petition to the county board for an election for the issuance of bonds to be donated to a railroad company, certain representations, promises, and inducements were' falsely and fraudulently made and held out by the railroad company to such freeholders, and which resulted in such freeholders becoming signers to said petition, held, that such representations, promises, and inducements, although made at a time and meeting previous to the. time at which said freeholders became signers, were nevertheless a part of the res gestos.</p> <p>3. -: -: -: Agents. Where two agents of a railroad company were engaged in the common purpose of soliciting the freeholders of a town to become signers to a petition for the calling of an election to vote bonds, and one of said agents made certain pledges and promises, and held out certain inducements to said freeholders who shortly afterwards were by the other of the said agents presented with said petition, and signed the same, held, that such pledges, promises, and inducements were a part of the res gestx.</p>

<p>Contract: Work and Labor: Performance. In an action upon a contract to exterminate the prairie dogs upon a certain tract of land, held, that there had been a substantial compliance with the terms of the contract and that the plaintiff was entitled to recover.</p>

<p>1. Attachment: Liens: Priority. The bank of V., located at V., in Saunders county, received $1,785 from D., and issued to him a certificate of deposit signed by S., the presidí nt. After-wards the bank stopped payment, when D. began an action against the bank in Butler county, and caused an attachment to be levied on certain personal property of S. On the next day one B. began an action by attachment against S. in Saunders county, and the same was levied on the property previously levied upon in favor of D. Held, That the attachment of B. constituted the first lien on the property.</p> <p>2. -: Grounds: Pleading. In this state an action is begun in the district court by filing a petition and issuing a summons thereon which is served on the defendant, and an attachment is ancillary thereto. Where, therefore, the petition makes no claim of liability against a defendant, stating no fact irom which such liability may be inferred, there is no ground of attachment against him.</p> <p>3. -: Priority: An Amended Petition afterwards filed, which alleges a liability of the defendant to the plaintiff, will not take precedence of liens of other creditors which have attached since filing the original petition.</p>

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

<p>Error to the district court for Gage county. Tried below before Appelg-et, J.</p> <p>cited: Shaw v. How-land, 32 Kan., 154; Freeman, Executions, sec. 273; Cox v. Hall, 18 Yt., 191; Peterson v. Foil, 67 la., 402; Mc-Mannus v..Loe, 43 Mo., 206;- Clark v. Bales, 15 Arlt., 452; Williams v. Sheldon, 10 Wend. [N. Y.], 654; McIntyre v. Green, 36 Ga., 48; Vosburgh v. Mqak, 1 Cush. [Mass.], 453; Williamson v. Fischer, 50 Mo., 198'; Turner v. Killian, 12 Neb., 580; Noble v. Himeo, Id., 193.</p> <p>cited: Hall v. Smith, 14 Bush [Ky.], 604; 11 Am. & Eng. Ency. Law, 1015, note 3, and cases cited; Dicey, Parties to Actions, 431; Bliss, Code PI., sec. 83.</p>

<p>Error to the district court for Dawson county. Tried below before Hamer, J.</p> <p>cited, contending that the probate court was without jurisdiction, and its grant of administration void: Hawes, Jurisdiction of Courts, sec. 74; Patitto v. Barksdale, 22 Ga., 358; Crosby v. Leavitt, 4 Allen [Mass.], 411; Embry v. Millar, 1 A. K. Marsh [Ky.], 221; Christy v. Vest, 36 la., 286; Miltenberger v. Knox, 21 La. An., 399; Pinney v, MaQregory, 102 Mass., 189; Thomas v. People, 107 111., 517; Stevenson v. Superior Ct., 62 Cal., 60; Griffith v. Frazier, 8 Cranch [U. S.], 9; Quits v. Haskins, 9 Mass., 543; Holyoke v. Haskins, 5 Pick. [Mass.], 20; Wales v. Willard, 2 Mass., 120; Milia v. Simmons, 45 Wis., 334.</p> <p>cited, in reply to the contention: Gary’s Prob. Law, secs. 33, 34, 36, 37, 178; Schouler’s Ex. and Adm., secs. 24, 25, 27, 92; Lees v. Wetmore, 12 N. W. Rep. [Ia.], 238; Hobson v. Ewan, 62 111., 146; Schnell v. Chicago, 38 Id., 390; Bowles v. Rouse, 3 Gilm. [111.], 408; Wales v. Willard, 2 Mass., 120.</p>

<p>Error to the district court for Gage county. Tried below before Broady, J.</p> <p>cited: Wasson v. Palmer, 13 Neb., 378; Ballard v. State, 19 Id., 619; Fitzgerald v. Meyer, 25 Id., 82; Greer v. Blanchar, 40 Cal., 194; Schuyler Nail. Bank v. Bollong, 24 Neb., 828; Peck v. Lake, 3 Lans. [N. Y.], 136; Tibbetts v. Sternberg, 66 Barb. [N. Y.], 201; Van Livery v. Fitzgerald, 21 Neb., 36-41; Thompson, Trials, 1970, and cases; St. Louis Brewing Co. v. Bodeman, 12 Mo. App., 573.</p>

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

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

<p>Error to the district court for Adams county. Tried below before Gaslin, J.</p> <p>No briefs filed.</p>

<p>1. Evidence: Value of Goods Delivered : In an action based in part upon tbe fraudulent representations by tbe defendant as to the quality and value of goods sold and delivered, held, that evidence of the value of goods actually delivered was admissible.</p> <p>2. -: Parol Cannot Contradict Written. A contract in writing having been declared on, and set out at length in the petition, which contained a clause providing that ‘ ‘All of said goods are to be selected by the said G. M. T.,” defendant, evidence by parol to the effect that plaintiffs had contracted with G. M. T., defendant, for goods of a different fashion, make, style, and quality, from the goods actually selected by him, held, erroneously admitted.</p> <p>3. -: Must Agree With Pleadings: The rule of law is inflexible that the allegations and the proof, allegata et probata, must agree.</p>

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

<p>Original application for mandamus.</p> <p>No briefs filed.</p>

Exceptions from the district court for Douglas county. Tried below before Hopewell, J. The act of 1889 did not provide for the collection of a tax; it merely prescribed a condition precedent to the transaction of business in Nebraska by foreign insurance companies. (People v. Thurber, 13 111., 554; Walker v. Springfield, 94 Id., 364; III. Mut. Fire Ins. Co. v. Peoria, 29 Id., 180; East St. Louis v. Wehrung, 46 Id., 392; Euoatv.

<p>Appeal from the district court for Lancaster county. Heard below before Chapman, J.</p> <p>No right to obstruct a street can be acquired by adverse possession. (Alvord v. Pope, 53 Cal., 437; Hoadley v. San Francisco," 50 Id., 265; Quincy s. Jones, 76 111., 231; Sims v. Chattanooga, 2 Lea [Tenn.], 694; San Francisco v. Sullivan, Id., 603; Jersey City v. Howeth, 30 N. J. L., 521; Sheen v. Stothart, 28 La. Ann., 630; Cross v. Morristown, 18 N. J. Eq., 305.) Encroachments upon a public street are public nuisances. (Wetmore v. Tracy, 14 Wend. [N. Y.], 250; Robbins v. Chicago, 4 Wall. [U. S.], 657; Neoins v. Peoria, 41 111., 503; El Dorado v. Davidson, 30 Cal., 520.) No length of time will legalize a public nuisance. (Follces v. Chadd, 3 Doug. [Eng.], 157; Stoughton v. Baker, 4 Mass., 522; Com. v. Upton, 6 Gray [Mass.], 476; Burbank v. Fay, 65 N. Y., 57; New Orleans v. U. S., 10 Pet.[U. S.], 734; Henshaw v. Hunting, 1 Gray, [Mass.], 203; Com. v. Boston, 16 Pick. [Mass.], 442; Wright v. Tukey, 3 Cush. [Mass.], 290; Fox v. Hart, 11 O., 414; Ellsioorth v. Grand Rapids, 27 Mich., 250; Gaberling v. Wunnenherg, 51 la., 125.)</p> <p>cited cases referred to in opinion, and the following: Forsyth v. Wheeling, 19 W. Va., 318; Gaines v. Hot Springs Co., 39 Ark., 262; Kennebunkport v. Smith, 22 Me., 445; Alton v. Ill Trans. Co., 12 111., 38; Sch. Directors v. Goergis, 50 Mo., 194; Gibson v. Chouteau, 13 Wall. [U. S.], 92; Cooper v. Detroit, 42 Mich., 584; Lancaster Cb. v. Brinthaul, 29 Pa. St., 38; Vicksburg v. Marshall, 59 Miss., 563; Sims v. Frankfort, 79 Ind., 486.</p>

<p>Appeal from the district court for Douglas county. Heard below before Wakeley, J.</p> <p>cited,' contending that all matters connected with the mistake must be clearly shown: Kerr, Fraud and Mistake [Bump’s Ed., 1872], 421, 422, 429, 430, 431, 432; Lyman v. Ins. Co., 17 Johns. [N. Y.], 373; Farley v. Bryant, 32 Me., 474; McDaniels v. Bank, 29 Yt., 230.</p> <p>cited, contending that voluntary deeds could not be reformed: Broun v. Kennedy, 33 Beav. [Eng.], 147; Smith v. Wood, 12 Wis., 425; Eaton v. Eaton, 15 Id., 284; Peteschv. Hambach, 48 Id., 447; Dickinson v. Qlenney, 27 Conn., 109; Minium v. Seymour, 4 John. Ch. [N. Y.], 497; Colman v. Sorrel, 1 Yes. Jr. [Eng.], 54; Lee i}. Henley, 1 Yern.. [Eng.], 37; Acker v. Phcenix, 4 Paige Ch. [N. Y.], 305; Quirk v. Thomas, 6 Mich., 98.</p>

<p>Negligence: A Master is Liable to third persons for damages resulting from the negligence of his servants only when the latter is acting within the scope of his employment.</p>

<p>1. A petition in error must specifically point out the rulings of the trial court, on the admission of testimony, which are relied on for a reversal, or they will not he considered.</p> <p>2. -■: Cities: Change of Street Grade: Damages. When city property is damaged by reason of the grading of the street upon which it abuts, the owner is entitled to remuneration. The difference in the market value of the property with the improvement and that without it, not considering general benefits shared by the general public, is the rule of compensation. In such case special benefits to the property directly attributable to the improvement, may be set off against the damages sustained by the owner. (Schallerv. City of Omaha, 23 Neb., 325.)</p> <p>3. —:-: -: -: The Market Value is not what the property is worth solely for the purpose for which it is devoted, but the highest price it will bring for'any and all uses to which it is adapted, and for which it is available.</p>

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

<p>Appeal from the district court for Buffalo county. Heard below before Hamer, J.</p> <p>cited: State v. Krumpus,. 13 Neb., 321; Jackson v. Creighton, 29 Id., 310; Chopin v. Runte, 44 N. W. Rep. [Wis.], 259; Spear v. Evans, 51 Wis., 42; Mitchelson v. Smith, 28 Neb., 583; First Natl. Bank v. Briggs, 22 111. App., 228; Nichols v. Spermont, 111 111., 633; Monroe v. May, 9 Kan., 476; Colby v. Crocker, 17 Id., 527; Kruger v. Harvesting Co., 13 Neb., 100; 1 Jones, Liens, secs. 30, 31; W., St. L. <& P. R. Co. v. Ham, 114 U. S., 587.</p> <p>cited : Cooper v. Foss, 15 Neb., 515; Shamp v. Meyer, 20 Id., 223; Klapworth v. Dressier, 78 Am. Dec. [N. J.], 83, 84; Devlin, Deeds, sec. 1078; Cooley, Taxation, 542; Pom., Eq. Jur., sec. 804; Forgy v. Merriman, 14 Neb., 514; Bond v. Dolby, 17 Id.,-491.; Kruger v. Harvesting Co., 9 Id., 533.</p>

Heard below before Gaslin, J. cited, contending that compensation should precede or accompany appropriation: Brady v. Bronson, 45 Cal., 643; Sage v. Brooklyn, 89 N. Y., 189; Chapman v. Cate, 54 Id., 146; Mills, Eminent Horn. [2d Ed.], sec. 126; Keene v. Bristol, 26 Pa. St., 46. cited: Chapman v. Gates, 54 N. Y., 132; Sage v. Brooklyn, 89 Id., 196; Smeaton v. Martin, 57 Wis., 364; Woodruff v. Glendale, 26 Minn., 78; Com’rs v. Bowie, 34 Ala., 461; Cooley, Const.'Lim., 560; II.

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

<p>1. Elections: Contest: Time oe Filing Complaint. In a contest of election for a county office the'complaint may he filed at any time within twenty days after the votes of the county are canvassed. The county clerk is required, with two disinterested electors of the county, to canvass the votes within six days after the closing of the polls.</p> <p>2. -: -: -. Where neither the pleading nor proof . shows an earlier date, the twenty days in which to file a complaint in the county court will not commence until the expiration of the time limited in which the canvass may he made.</p> <p>3. Appeal: Reversal oe Judgment on Pleadings. Where a case is decided in the county court on the pleadings alone, the district court, on reversing the case, should remand it for trial on its merits.</p>

<p>Practice: Pleading. In an action to enjoin a judgment the defendant filed an answer asking affirmative relief, whereupon the plaintiff dismissed his petition without prejudice, and asked leave to file a reply in the nature of an answer to the defendant’s answer. This was denied, and judgment entered in favor of the defendant by default. Beld, That the plaintiff should have been permitted to reply.</p>

<p>1. County Court: Appeal: Time. Judgment was rendered in a county court on the 29th of May, and a transcript for an appeal filed in the district court on the 27th of June following. Meld, Filed within time.</p> <p>2. -: Continuance. Where the transcript of the county judge shows a continuance to May 27, and a trial and verdict on May 29, it will be presumed that the trial began on May 27, and continued until May 29.</p>

<p>1. Review. Affidavits used on the hearing of a motion in the district court must be preserved in a bill of exceptions to be available in the supreme court.</p> <p>2. Jury: Deliberation: Misconduct. While a jury was deliberating upon a verdict one of the jurors handed a person outside of a window twenty-five cents, with the request that he would procure apples for the jury. The bystander thus addressed took the money, purchased apples, and on his own account also a quantity of cigars, and passed them in to the jury with the remark that these were-- cigars, giving the name of defendant in the action, but immediately thereafter adding the name of the plaintiff, saying that the jury might consider them from either. Held, That the verdict be set aside; that the court would not permit a jury to be tampered with in this manner, and that prejudice would be presumed. Held, also, that upon the attention of the trial court being called to this infraction of duty by a bystander, that the offender should have been severely punished for contempt.</p> <p>3. Instructions: Must be Read to the Jury. All instructions which are proper to be given to the jury should be read by the court, and if it was clearly shown that instructions asked on behalf of a party had been handed to the jury without reading, thus placing them under a cloud, the verdict against such party would be set aside.</p>

<p>Error to the district court for Adams county. Tried below before Gaslin, J.</p> <p>The statute allows “three days of grace,” and this period cannot be lessened (as it would be here if presentment were required on the second day), because it is regulated by the law of the place of payment. (Thorp v. Craig, 10 la., 461; Shelton v. Dustin, 92 111., 49; 1 Randolph, Com. Paper, 2,31; 2 Am. & Eng. Ency. of Law, 397.) Presentment before the last day of grace is premature (Edgar v. Creen, 8 la., 393;, Griffin v. Goff, 12 Johns. [N. Y.], 423; McFarland v. Pico, 8 Cal., 426; Parsons, Mercantile Law, 106); and will not authorize a protest (Bank of Washington v. Tuflett, 1 Peters [U. S.], 25; Avry v. Stewart, 2 Conn., 69). Sunday is a dies non and should be ignored. (Post v. Qarrow, 18 Neb., 682; Barrett v. Allen, 10 Ohio, 426; Kilgore v. Bulkey, 14 Conn., 362; Bank v. Barnvm, 49 N. Y., 279.) The rule here contended for is announced by this court in State v. King, 23 Neb., 546, and the only contrary statement produced is a mere suggestion of Judge Swan in his “Justice Treatise,” p. 721.</p> <p>The common law, in a case of this kind, requires presentment and demand on the second day. (Reid v. Wilson, 12 Yr. [N. J.], 29; Woods v. Corl, 4 Met. [Mass.], 203; JBussard v. Levering, 6 Wheat. [U. S.], 102; Routh v. Helm,, 6 How. [Miss.], 129; JKuntz v. Temple, 48 Mo., 75; Cwyler v. Stevens, 4 Wend. [N. Y.], 566; 1 Parsons, Bills and Notes, 402; Farnum v. Fowle, 7 Am. Dec. [Mass.], 35; Sanders v. Ochiltree, 30 Id. [Ala.], 551; Sheldon v. Renham, 40 Id. [N. Y.], 271; Ransom v. Mack, 38 Id., 602; 1 Daniels, Neg. Inst., secs. 465, 627; Story, Bills, 338; Thornton v. Stoddert, 1 Cranch [D. C.], 534; Salter v. Burt, 20 Wend. [N. Y.], 205; Bank v. Varnum, 49 N. Y., 279.) Our statute does not change but reaffirms the common law in this regard, and State v. King, 23 Neb., 546, while a dictum, clearly indicates that the common law prevails here. The Ohio statute is almost identical with ours, and Judge Swan’s construction of the former (“ Justice Treatise,” p. 721) is authority.</p>

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

<p>Attachment: Evidence. In an action of replevin brought by a purchaser of goods against the sheriff who had levied an attachment thereon at the suit of a creditor, held, that the evidence sustained the judgment of the court below that there was no intent to defraud creditors.</p>

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

Tried below before Smith, J. cited, as to the service of summons: Palmer v. Belcher, 21 Neb., 58; Freeman, Judgments, secs. 119, 126; Morse v. JEngle, 26 Neb., 247; Lawrence v. Howell, 52 la., 62. As to the relative rights of creditor and surety: Small v. Older, 57 la., 326; Matthews v. Switzler, 46 Mo., 301; Harding v. Tifft, 75 N. Y., 461; Wood v. Callaghan, 61 Mich., 402.

Tried below before Clarkson, J. cited: Wharton, Criminal Evidence, secs. 623, 625, 632, 673, 862. cited, as to the constituents of larceny: Maxwell’s Crim. Proc., 360; 1 Bishop’s Grim. Law, 567; 2 Id., 758 and note 1; Chaplin v.I/ee, 18 Neb., 440; Mead v. State, 25 Id., 444. As to the confessions: 1 Roscoe, Crim.

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

<p>Insurance : Application: Waiver. In an action on a policy of insurance the testimony tended to show that the application was filled out hy the company’s agent who solicited the risk; that the insured was unable to read and not accustomed to transacting much business; that some of the answers in the application were untrue, but there was a conflict in the testimony as to their being read to the insured before the application was signed. It also appeared that after the loss the company sent an adjusting agent who estimated the loss at a specified sum, for which sum a draft was sent to the insured in full of all demands, which he refused to receive. Held, That the testimony supported the verdict and that the company was liable for the loss.</p>

Tried below before Morris, J. cited, contending that the tax was illegal and could be recovered back: Torbitt v. Louisville, 4 S. W. Rep. [Ky.], 345; Hatter v. Greenlee, 26 Am. Dec. [Ala.], 374; Cotter v. Doty, 5 O., 397; CHS', ■v. Bryson, 15 Id., 625; Claflin v. McDonough, 84 Am.

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

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

<p>Review. The instructions of the court examined and approved, and the testimony to the jury found sufficient to support the verdict.</p>

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

<p>Review. The verdict is warranted by the evidence, and no error appearing in the record that could materially affect the merits of the case, the judgment is affirmed.</p>

<p>Error to the district court for Douglas county. Tried below before Groff, J.</p> <p>cited, as to the point discussed in the opinion : Hemmer v. Wolfer, 124 111., 435 ; Turner v. Jenkins, 79 Id., 228; Haworth v. Huling, 87 Id., 23; Miller v. Handy, 40 Id., 448; Harman v. Moore, 112 Ind., 221; Rubush v. State, Id., 107; Harnish v. Bramer, 71 Cal., 155; Nevill v. Pope, 95 N. Car., 346.</p>

<p>School Lands: Fraudulent Assignment of Certificate of Purchase. One W. L. B., an insolvent debtor, was the owner of a school land certificate of purchase issued by the state, covering forty acres of land, on which the amount of unpaid purchase money was $384. The certificate was assigned to P., who at the time had knowledge of the insolvency of W. L. B. No consideration was paid by P. to' W. L. B. for the land, nor did he promise to pay him anything therefor. Subsequently P. paid the amount due the state and took the deed in his own name. The land was worth $1,200. Held, That P. was only entitled far a lien on the land for the amount paid the state, with interest on said sum; and, subject to such lien, the land was liable to the payment of certain judgments recovered against W. L. B.</p>

<p>Fraudulent Conveyances: A Chattel Mortgage executed by a debtor upon all his personal property, of a value greatly in excess of the debt secured, is fraudulent and void as to the unsecured creditors of the mortgagor.</p>

<p>1. Tax Sale: Land Not Taxable: Liability oe County. Where lands are sold for taxes, by a county treasurer, which are not subject to the taxation, the county is liable to the purchaser for the amount paid by him with interest. (Roberts v. Adams Co., 18 Neb., 471; Wilson v. Butler Co., 26 Id., 676.)</p> <p>2.-:-: Presentation of Claim. In such a case the claim should be presented to the county board, and if rejected an appeal may be taken to the district court.</p> <p>3. -: -: Limitations. The tax purchaser, who has neither demanded a deed within five years from the date of the sale, nor commenced proceedings to foreclose the tax certificate within the period of limitation for such actions, is not entitled to have the county refund the purchase money by reason of the invalidity of the tax sale.</p> <p>4. Amendment. The second paragraph of the syllabus in Alexander v. Wilcox, 30 Neb., 793, corrected to read: A tax deed issued more than five years after the date of the tax certificate is invalid.</p>

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

<p>1. Review. Evidence examined, and it not appearing that the verdict is clearly wrong, it is sustained.</p> <p>2. A new trial will not he granted upon newly discovered cumulative evidence, unless the new evidence is of so controlling a character as probably would change the verdict.</p>

<p>1. New Trial: Order Overruling Motion for, Reversed. In an action for the conversion of corn a verdict was returned in favor of the plaintiff. The defendant thereupon filed a motion for a new trial, which soon afterwards was overruled. In consequence of a decision of the supreme court on a similar question the district court, during the same term, reviewed its former ruling on the motion for a new trial and reversed the same, and granted a new trial. Held, That this was within the powers of the court, and under the circumstances was not an abuse of discretion.</p> <p>2. -: ————: Review. On the second trial no evidence was offered by either party, whereupon the court dismissed the action. Held, That it was the duty of the plaintiff to offer evidence in support of his case, and that the supreme court would not review the action of the district court in granting a new trial in advance of the second trial.</p>

<p>Appeal from the district court for Douglas county. Heard below before Clarkson, J.</p> <p>cited: Brown v. Conger, 10 Neb., 238; Savage v.Aiken, 14 Id., 315.</p> <p>cited: Brown v. Conger, 10' Neb., 238; Savage v. Aiken, 14 Id., 315; Merriam v. Gordon, 20 Id., 405; Cheney v. Harding, 21 Id., 68; Merriam v. Calhoun, 15 Id., 569.</p>

<p>Appeal from the district court for Saunders county. Heard below before Marshall, J.</p> <p>cited: Lammes v. Comstock, 20 Neb., 345; Merriam v. Dovey, 25 Id., 622; Parles v. Watson, 20 Eed. Rep. [Neb.], 764; Otoe Co. v. Mathews, 18 Neb., 466; Merriam v. Hemple, 17 Id., 345; Schoenheit v. Nelson, 16 Id., 235; Stettnische v. Lamb, 18 Id., 119.</p> <p>cited: Blackwell, Tax Title, 174; Shepherd v. Burr, 27 Neb., 432; Parker v. Matheson, 21 Id., 546; B’ Gette v. Sheldon, 27 Id., 829.</p>

Tried below before Powers, J. cited, contending that the admission of incompetent testimony was reversible error: Dunbier v. Bay, 12 Neb., 600; High v. Bank, 6 Id., 157; Mseleyv. Malehow, 9 Id., 180. cited, as to the evidence of previous offense: 1 Greenleaf, Evidence [13th Ed.], sec. 53 n.; as to burden of proof: First Natl.

Tried below before Norris, J. The lease contains no forfeiture clause; hence mere failure to pay rent did not work a forfeiture nor entitle the landlord to recover possession. (2 Taylor, Landlord & Tenant, 70; Brown v. Bragg, 22 Ind., 122; Gaskell v. Trainer, 3 Cal., 334.) His only remedy was an action for the rent and to protect his reversionary interests. (1 Taylor, L. & T., 189; 12 Am. & Eng. Ency.

<p>1. Judgments: Insufficient Findings. A judgment is not void for want of a finding of fact to support it. While it is erroneous and subject to reversal by proper proceedings brought for that purpose, yet the lack of such a finding is no cause for enjoining the collection of the judgment.</p> <p>2. -: Injunction. A judgment at law, valid on its face, will' not be enjoined on behalf of the defendant against whom it was rendered, when it does not appear that he has a valid defense to the cause of action upon which the judgment was entered.</p>

<p>Appeal from the district court for Chase county. Heard below before Cochran, J.</p> <p>cited: O., B. & Q. B. Co. v. Paddock, 75 111., 616; San F., N. & B. B. Co. v. Bd. of Equalization, 60 Cal., 12; Bundy v. Bichardson, 8 Neb., 508; S. Platte Co. v. Crete, 11 Id., 344; Thatcher v. Adams Cb.,19 Id., 485; Appelgate v. Ernst, 3 Bush [Ky.], 646; V. & T. B. Co. v. Washington Co., 30 Gratt. [Ya.], 481; Cass Co. v. B. Co., 25 Neb., 356.</p> <p>cited: B. & M. B. B. Co. v. Lancaster Co., 7 Neb., 35; 15 Id., 251; Bed Willow Co. v. B. Co., 26 Id., 660.</p>

Original proceedings to contest election of district judges.. The legislature may increase the original jurisdiction of the supreme court unless prohibited by the constitution. (Cooley, Const. Lim., 206.) Hence the law granting jurisdiction herein is valid.

<p>Appeal from the district court for York county. Heard below before Noryal, J.</p> <p>cited: Roy v. McPherson, 11 Neb., 198; Aultmcm v. Obermeyer, 6 Id., 260; Hoagland v. Wilson, 15 Id., 320; Thompson v. Loenig, 13 Id., 387; Atkins v. Atkins, 18 Id., 476; Fisher v. Herron, 22 Neb., 185; Bogart v. Fisher, Id.; Bartlett v. Gheesbrough, 23 Id., 771; Grimes v. Sherman, 25 Id., 848.</p>

<p>Appeal from the district court for Cass county. Heard below before Field, J.</p> <p>cited: Parker v. Mathew■son, 21 Neb., 547; Helphrey v. Pediok, Id., 83; D’Gette ■v. Sheldon, 27 Id., 829; Alexander v. Wilcox, 30 Id., 793.</p>

Tried below before Hopewell, J. This is an action in personam and does not fall within sec. 17 of the Code. (Manlcin v. Chandler, 2 Brock. [U. 5.], 125; Mills v. Caldwell, 2 Wall. [U. S.], 41; Watkins v. Reed, 30 Fed. Rep. [Kan.], 908; Wood, Dim.

<p>Negotiable Instruments: Failure of Consideration: Bona Fide Holder. The consideration for which a negotiable promissory note was given was a jack warranted by the seller to be a sure foal-getter. In an action upon the note by an indorsee, who purchased the paper before due, in the ordinary course of business, for value, having knowledge of the contract of warranty, but neither he nor the makers of the note had any knowledge that the warranty had failed until long after the transfer of the paper, held, that the defense of breach of warranty was not available against the plaintiff.</p>

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

<p>Justice of the Peace: Appeal: Transcript Filed by Appellee After Time. Where a party to a judgment rendered, by a justice of the peace files an undertaking for an appeal within ten days after the date of the judgment, but fails to file a transcript of the proceedings in the district court within thirty days next following the rendition of the judgment, the appellee may file such transcript and have the cause docketed; and the district court is authorized, on his motion, either to dismiss the-appeal, or enter a judgment in his favor similar to that rendered by the justice.</p>

<p>1. Attorney and Client: Collections: The Petition construed, and held to state a cause of action against an attorney for money collected by him in the course of his employment and in his' hands belongin'g to his client.</p> <p>2. -: -: An Averment in a petition that the defendant neglected and refused to pay a certain sum of money, though requested so to do, is a sufficient allegation of a demand being made.</p>

<p>1. Executions: Partnership Property: Relative Rights op Creditors. N. & Co. recovered a j udgment against C. & G-. upon a joint promissory note, and caused an execution to be issued thereon, which was levied by the sheriff on partnership property belonging to C. & G. Soon afterwards, and before a sale under the execution, C. & G., as a firm, confessed judgment in favor of McP., who thereupon caused an execution to be issued thereon, which was levied by a constable upon the same property as that previously levied upon by the sheriff. In an action in equity by N. & Co., in which they alleged that the debt on which their judgment was based was a firm debt of C. & G., the answer raised the same question, and upon the isues thus formed the court found in favor of N. & Co. Held, That the judgment was supported by the clear weight of evidence.</p> <p>2. Jurisdiction: Objections to Must be Raised Specially. Where the court has jurisdiction of the subject-matter and the parties, and the issues are tried without objection, the court will not on its own motion raise objections to its jurisdiction.</p>

<p>Review: Real Estate: False Representations. In an action by a vendor of real estate to enforce the contract for the sale of certain lots, the defendants answered in substance that the agent of the plaintiff, in selling the same, represented that they were high and dry and level, and that they had no knowledge as to the location of the lots, and relied on said representations, and the lots were not high and dry and level, but on the contrary were situated in a low place. Held, That as the testimony was conflicting, and it did not appear that the judgment was clearly wrong, it would not be set aside.</p>

Tried below before Marshall, J. cited, to the contention that the county had no legal capacity to maintain the action, or authority to incur the expense of rewriting: Inhabitants v. Fiske, 8 Cush. [Mass.], 264; Rasmusson v. Co. Com’rs, 43 N. W. Rep. [Minn.], 3; Hattenbeok v. Hahn, 2 Neb., 397; Stewart v. Otoe Co., Id., 183; McCann v. Otoe Co., 9 Id., 331; State v. Lincoln Co., 18 Id., 283-4. in reply: Parish of Sudbury v. Stearns, 21 Pick. [Mass.], 148; Saioyer v. Baldwin,…

<p>Original application for writ of habeas corpus.</p>

' Appeal from, the district court for Lancaster county. Heard below before Field, J. cited, contending that,. Roth alone could have sued on the contract, and that he was not appellant’s agent: Stone v. Wood, 7 Cow. [N. Y.], 453; Williams v. Christie, 10 How. Pr. [N. Y.], 17 ; Evans v. Wells, 22 Wend. [N. Y.], 331. That the lien would not attach for a furnace: Note to Hubbell v. East Cambridge, 42 Am.

Original application for mandamus. The act of 1877 was repealed by the act of 1883, and the pretended amendment thereof in 1885 is a nullity. (Knox County v. MoComb, 19 O. St., 320; Dutton v. Aurora, 114 111., 138; Stingle v. Nevel, 9 Ore., 62; Haynes v. Cape May, 52 N. J. L., 180; Bennie v. Reis, 80 Cal., 266; Maxwell v. State, 7 S. Rep. [Ala.], 824.) The bonds now sought to be refunded are not internal improvement bonds, and hence the act of 1883 alone applies.

<p>County Bonds: Refunding. County bonds issued to aid in the construction of works of internal improvement can be refunded only under the provisions of the act of February 28, 1883, entitled “An act to authorize eourities to issue bonds for refunding their bonded indebtedness, and providing for registering and certifying the same, and for levying a tax to pay the interest and principal thereof.”</p>

<p>Error to the district court for Douglas county. Tried below before Doane, J.</p> <p>cited: Wood, Landlord and Tenant, 649, 796, 812; Gear, Landlord and Tenant, secs. 1, 87, 88, 89, 91, 92, 128, 915, 926; Wood-falls, Landlord and Tenant, 310; Hall v. Gould, 13 N. Y., 127; Linden v. Hepburn, 5 How. Pr. [N. Y.], 188; JRutzen v. Lewis, 5 Adolf. & El. [Eng.], 277*; Cooley, Torts, 326; Home Life Ins. Go. v. Sherman, 46 N. Y., 370.</p> <p>cited: Wood, Landlord and Tenant [2d Ed.], secs. 511, 845; page 844; Ladd v. Smith, 6 Ore., 316; Thomas v. Nelson, 69 N. Y., 119; Townsend v. Albers, 3 E. Smith [N. Y.], 560; Prentiss v. Warne, 10 Mo., 602; Bloomer v. Merrill, 1 Daly [N. Y.], 485; Morris v. Tilson, 81 111., 607; Elliott v. Aiken, 45 N. H., 30; Fuller v. Ruby, 10 Gray [Mass.], 285.</p>

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

<p>Error to the district court for Hall county. Tried below before Harrison, J.</p> <p>cited: People v. Gosper, 3 Neb., 3.10; Hamilton v. Thrall, 7 Id., 219; Seh. Hist. v. Estes, 13 Id., 53; Harbaohv. Miller, 14 Id., 13; Jones v. Witherspoon, 78 Am. Dec. [N. Car.], 260; Smith v. Jordan, 13 Minn., 264.</p>

<p>1. Pleading: Misjoinder of Causes: Cannot be First Raised in Supreme Court. This court will not notice an objection to a petition on the ground that two causes of action are improperly joined, unless such objection was made.in the trial court.</p> <p>2. Usury: National Banks: Sale of Note by Payee: Evidence. In an action against a national bank to recover double the amount of interest paid on a usurious contract, defendant contended that it had sold and assigned the usurious note to another bank and that in collecting the face of the note from the maker it was acting merely as the agent of the other bank. Held, First, the defendant might evade the penalty for usury by proof of a sale and assignment in good faith of the usurious note; second, the mere assignment of the note by the defendant bank in such case raises no presumption in its own favor of an absolute sale thereof.</p> <p>3. -: Payments Applied on Pbincipal. In the absence of an agreement or understanding to the contrary, payments on a usurious contract will be applied on the principal debt and not on the usury.</p> <p>4. Error Without Erejudiee. A judgment will not be reversed for errors which an examination of the record shows are not prejudicial to the party complaining.</p> <p>5.-: Special Findings. Where special findings are requested in the form of questions for the jury, but such questions or findings do not cover the entire case, and the general verdict may stand although the questions may be answered in the way most favorable to the party offering them, it is not error for the court to refuse to submit them to the jury.</p>

<p>1. Judgments: Injunction: Agreement, by virtue of which a judgment of the district court is sought to be perpetually enjoined, construed, and held, not to include settlement or satisfaction of the judgment in controversy.</p> <p>2. -: Assignee Takes Subject to Attorney’s Lien. The assignee of a judgment takes it subject to the rights of an attorney who'has filed alien in due form for services rendered in procuring such judgment.</p>

Heard below before Hamer, J. There is no statutory provision in this state for the sale of a highway or bridge; and if it is the property of a corporation to the extent of having the mere right of tolls, that would not make it salable.

<p>Error to the district court for Douglas county. Tried below before Hopewell, J.</p> <p>cited: Edmonston v. Shelton, 4 Jones [N. Car.], 451; Baldwin v. Buffalo, 35 N. Y., 375; Cook v. Babcock, 11 Cush. [Mass], 209; Riley ¶. Jameson, 3 N. H., 26; Lund v. Norcross, Id., 50; Jackson v. Sharp, 9 Johns. [N. Y.], 167; Bates v. Norcross, 14 Pick. [Mass.], 228; Kirk v. Smith, 9 Wheat. [U. S.], 241*; Russell v. Davis, 38 Conn., 562; Unger v, Mooney, 63 Cal., 586; Armstrong v. Morrill, 14 Wall. [U. S.], 120; Groft v. Weakland, 34 Pa. St., 308; Angel, Limitations [2d Ed.], 447; IAttle v. Downing, 37 N. H., 367.</p> <p>cited: Stettnische v. Lamb, 18 Neb., 619; Clark v. Potter, 32 O. St., 49; Donovan v. Bissell, 53 Mich., 462; De La, Vega v. Butler, 47 Tex., 529; Hughes v. Pickering, 14 Pa. St., 297; Harper v. Tupley, 35 Miss., 506; Crispen v. Hannavan, 50 Mo., 536; Duren v. Sinclair, 22 S. Car., 361; Hardy v. Middle, 24 Neb., 673.</p>

<p>Rehearing of case reported 29 Neb., 682.</p> <p>cited: Feder v. Solomon, 26 Neb., 266; Dwight v. Over-ton, 35 Tex., 390; Briggs v. Davis, 20 N. Y., 15; 2 Blacks. Com., 326; Deitch v. Hollister, 4 N. Y., 211; Chicago hum. Co. v. Fisher, 18 Neb., 334; Loeb v. Milner, 21 Id., 392; Knox v. Williams, 24 Id., 630; StudebaJcer Mfg¡ Co. v. McCargur, 20 Id., 501; Fuller v. Schroeder, Id., 631; Newlean v. Olson, 22 Id., 717; Lininger v. Herron, 23 Id., 197; Hoffmann v. Mackall, 5 O. St., 124; Mfg. Bank v. Bank of Pa., 7 W. & S. [Pa.], 335; Hewitt v. Huling, 11 Pa. St., 27; McBroon & Woods’ Appeal, 44 Id., 92.; Claflin v. Maglaughlin, 65 Id., 492; Nelson v. Gary, 15 Neb., 532; Burrill, Assignments, sec. 167; Lininger v. Raymond, 12 Neb., 25; Hamilton v. Lau, 24 Id., 64; Rothell v. Grimes, 22 Id., 526; Leffel v. Schermerhorn, 13 Id., 342; Shelly v. Heater, 17 Neb., 505; Elwood v. May Bros., 24 Id., 373; Grimes v. Farrington, 19 Id., 45; Davis v. Scott, 22 Id., 157; Cowles v.'Rickets, 1 Ia., 585; Bonus v. Carter, 20 Neb., 566; Harkrader v. Leiby, 4 O. St., 602; Dickson v. Rawson, 5 Id., 218; Page v. Smith, 24 Wis., 368; Norton v. Kearney, 10 Id., 386; Ray v. Gore, 41 N. W. Rep. [Mich.], 329; Kohn Bros. v. Clement, 58 Ia., 589; Farwell v. Jones, 63 Id., 316; Gage v. Perry, 29 N. W. Rep. [Ia.], 822; Van Patten v. Burr, 52 Ia., 518 ; Sargeant v. Watts, 22 N. W. Rep. [Wis.], 131; Scott v. McDaniel, 3 S. W. Rep. [Tex.], 291; Gilbert v. McCorkle, 11 N. E. Rep. [Ind.], 296; Aulman v. Aulman, 32 N. W. Rep. [Ia.], 240.</p> <p>cited : Winner v. Hoyt, 28 N. W. Rep. [Wis.], 380; Woonsocket Rubber Co. v. Falley, 30 Fed. Rep. [Ind.], 808.</p>

<p>1. Liquors: Application por License: Notice Must be Published Continuously. The applicant for a license to sell intoxicating drinks must cause a notice of his application to be published, at least two weeks in a newspaper published in the county, having the largest circulation therein. This notice is to be continued for two weeks. It is to be published in every issue of the paper. If the paper is published daily, then the notice must be published daily. If the paper is published weekly then weekly publication will be sufficient.</p> <p>2. -: -: The Object of the Notice is to give as wide publicity as possible to the plaintiff’s application so that if any person knows of any violation of the license law by the applicant, or any valid reason why license should not be granted to him, he may come forward and make objection.</p>