Volume 36 — Nebraska Reports

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

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

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

Original application for mandamus to compel the respondent, Charles Yan Camp, county clerk of Knox county, to call to his assistance two disinterested electors of the twentieth representative district, and with them compare the abstracts of votes cast at the election held November 8, 1892, made by the canvassing boards of the counties of Knox and Boyd for representative, and returned to said county clerk of Knox county by the county clerks of said counties, and issue to the…

<p>1. Rape: Admissibility of Evidence. In a charge of rape, where no complaint was made for about seven months after the commission of the alleged offense and not until concealment by reason of pregnancy was no longer possible held, that the statements of the prosecutrix were not admissible in evidence, but independent facts, such as the condition of her clothing at the time, are admissible.</p> <p>2. -: -: Evidence. Proof of deformity of prosecutrix, as by the want of a hand, is proper, as tending to show diminished power of resistance.</p> <p>3. -: -. A charge of rape made months after the alleged commission of the same, where there were no marks Of violence on the person or clothing of the prosecutrix, or evidence of excitement, or change in.her demeanor, cannot be sustained unless there is very strong corroborating proof of the commission of the offense.</p> <p>4. -: -. Where the accused testifies in his own behalf and admits the sexual intercourse, but denies the use of force, it is for the jury to determine the facts from the testimony.</p> <p>5. -: -. Instruction's taken together, held, to state the law correctly.</p> <p>6. -: Trial: Conduct or Juror. A juror will not be permitted to state to his fellow jurors, while they are considering their verdict, facts in the ease within his own personal knowledge. He should make the same known during the trial and testify as witness in the case.</p>

<p>1. Allegata et Probata. A party is not allowed to allege in his petition one cause of action and prove another upon the trial. The allegata and probata must agree.</p> <p>2. Sufficiency of Evidence in Action for Services Rendered. The evidence in the case held insufficient to support the verdict.</p>

Heard below before Appelget, J. The plaintiff’s money was a trust fund. It can be followed into the assignee’s hands, and under sec. 24, ch. 6, Comp. Stats., should be paid in full as a preferred claim. (National Bank v. Insurance Co., 104 U. S., 54; Harrison v. Smith, 83 Mo., 210; Peak v. Ellicott, 30 Kan., 156; Englar v. Offutt, 70 Md., 78; Farmers & Mechanics Bank v. King, 57 Pa. St., 202; McLeod v. Evans, 28 N. W. Rep. [Wis.], 173.)

<p>1. Criminal Law: Confessions. In a criminal prosecution the confession or admission of the accused is not alone sufficient to justify a conviction. That the crime charged has been committed must be established by other testimony. A voluntary confession may be proved for the purpose of connecting the accused with the offense.</p> <p>2. -; Burglary: Proof. On a trial for burglary, under section 48 of the Criminal Code, an essential element of the crime is that the breaking and entering were committed in the night season, and unless this element is proved beyond a reasonable doubt, the accused should be acquitted.</p> <p>3. -: -: Pleading. In such a ease the intent with which the breaking and entering were done must be proved as laid in the information.</p> <p>4. -: Sufficiency of Evidence. Evidence in the case held insufficient to sustain the verdict and judgment.</p>

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

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

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

<p>Error from the district court of Douglas county. Tried; below before Wakeley, J.</p>

<p>1. Contingent Fund Appropriated for Governor’s Office: Discretion op Governor: Mandamus. The governor is vested with a discretion in the use of the contingent fund appropriated by the legislature. He may in his discretion use said fund for the purchase of stationery needed by the state, hut will not he required by mandamus to approve a warrant drawn against it on account of books and stationery ordered by him.</p> <p>2. -: Office Supplies. In the fund for books, blanks, and printiug in the governor’s office there still remains unexpended tbe sum of $152. Held, That this sum should be applied to the payment of blanks furnished for said office.</p>

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

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

<p>1. Action: When Commenced. An action is begun in this state by filing a petition in the district court upon which summons is issued which is served on the defendant.</p> <p>2. Mechanics’ Liens: Foreclosure: Summons: Limitation of Actions. A mechanic’s lien continues in force for two years after the date of filing the lien, and in case an action is brought to foreclose the same, until judgment is recovered and satisfied. If a summons is issued before the expiration of the two years from the filing of the lieu, it may be served afterwards within the statutory time, but if not issued until after the expiration of two years, an action to enforce the lien will be barred.</p> <p>3. -: -: New Promise Proof. Held, That the proof failed to show a new promise of the purchaser of the property to pay the debt.</p>

<p>1. Action on Replevin Bond: Pleading. Held, That, the petition states a cause of action, and that the new matter in the answer was not material.</p> <p>2. Waiver of Jury Trial: Objections: Review. Where objection is made that the record fails to show that a jury was waived and the cause tried to the court, it must appear that the objection was made and overruled in the trial court. It is unavailing if made for the first time in the supreme court.</p>

Error from the district court of Harlan county. Tried below before Gaslin, J. The defendant in error Goble is not liable upon the bond, because the plaintiff in error was substituted for the Commercial National Bank without his consent after the giving of the bond and during the pendency of the action in the district court. (Phillips v. Wells, 2 Sneed [Tenn.], 154; Harris v. Taylor, 3 Id., 541; Irwin v. Sanders, 5 Yerg. [Tenn.], 287; Smith v. Roby, 6 Heisk. [Tenn.], 546.)

Original application for mandamus to compel the respondent, Charles Van Camp, county clerk of Knox county, to call to his assistance two disinterested electors of the twentieth representative district, and with them compare the abstracts of votes cast at the election held November 8, 1892, made by the canvassing boards of the counties of Knox and Boyd for representative, and returned to said county clerk of Knox county by the county ■clerks of said counties, and issue to the…

<p>1. Liquors: Dealer’s Bond : Construction : Liability of Sureties. An undertaking will be strictly construed in favor of sureties and tbeir liability will not be extended by construction beyond their specific agreement.</p> <p>2. -: -: -. The term traffic in intoxicating drinks, as used in section 15, chap. 50, Comp. Stats., will, in action on a license bond, be held to mean the sale or furnishing of liquors to third persons, and not the use thereof by the saloon-keeper.</p> <p>3. -: - Injuries by Saloon-Keeper while Intoxicated : Liability of Sureties for Damages. S., a saloon-keeper, while intoxicated in his own saloon, shot and killed the plaintiff's husband. Held, That' the drinking of the 1 iquor by S. was not the traffic in intoxicating liquor within the meaning of the law, or such as will render his sureties liable in' an action upon his bond.</p> <p>4. Error Proceedings: Parties in Supreme Court. The second point of the syllabus in this case in 29 Neb., 612, overruled.</p>

<p>Executions: Lien of Levy on Personalty: Replevin: Liability of Sheriffs. A sheriff levied an execution upon a quantity of personal property as belonging to one H., the judgment debtor. A portion of this property was taken under an order of replevin in favor of the wife of H. She gave a bond and the property was delivered to her. Afterwards, on the trial of the cause, judgment was rendered against her, whereupon she returned the property to the officer. He thereupon levied an execution in favor of another party on a part of said property and sold the same and applied the proceeds in satisfaction of said execution. Held, That the lien of the first execution was not divested and that the officer was liable to the first execution creditor.</p>

<p>Error from the district court of Nance county. Tried below before Marshall, J.</p>

<p>Appeal from the district court of Box Butte county. Heard below before Kinkaid, J.</p>

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

<p>Error from the district court of Douglas county. Tried below before Doane J.</p>

<p>1. Sales: Fraud of Purchaser: Rescission. Where goods were sold to be paid for on delivery, either in cash or secured note payable in thirty days, but the purchaser fraudulently managed to obtain possession of the property without complying with the conditions, the purchaser was insolvent and mortgaged the property in question to secure pre-existing debts, held, that the seller, upon discovery of the fraud, could rescind the sale and reclaim the goods from the mortgagee.</p> <p>2. The first clause of the syllabus in Henry v. Vliet, 33 Neb., 130, overruled.</p>

<p>Error from the district court of Saunders county. Tried below before Marshall, J'.</p>

<p>1. Usury. An agreement to pay annually in advance the highest legal rate of interest for the use of money, does not make the contract usurious.</p> <p>2. -: Coupon Notes: Interest. Where a party loans money at the maximum rate allowed by statute and coupon notes are taken for the interest, which stipulate that interest shall be allowed thereon after maturity, at ten per cent, the contract is not thereby tainted with the vice of usury. In such case no interest will be allowed on such coupons.</p> <p>3. -: Pleading: Evidence. JBeld, That the answer does not allege sufficient facts .to constitute a plea of usury, and that the evidence fails to prove that the contract was usurious.</p>

<p>Error from the district court of Hamilton county. Tried below before Bates, J.</p>

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

<p>Error from the district court of Douglas county. Tried below before Irvine, J.</p> <p>Burnham v. Boston, 10 Allen [Mass.], 290; South Omaha v. Cunningham, 31 Neb., 316; Omaha v. Randolph, 30 Id., 699; Lincoln v. Walker, 18 Id., 250; Valparaiso v. Donovan, 28 Id., 406; Lincoln v. Smith, 28 Id., 762.</p> <p>Rice v. Montpelier, 19 Vt., 470; Cassidy v. Stockbridge, 21 Id., 319; Spar hawk v. Salem, 83 Mass., 30; Scranton v. Hill, 102 Pa. St., 378; Skyes v. Powlet, 43 Vt., 446; Wheeler v. Westport, 30 Wis., 403; Kellogg v. Northampton, 4 Gray [Mass.], 65; Smith v. Wendell, 7 Cush. [Mass.], 498; Howard v. North Bridgewater, 16 Pick. [Mass.], 189; Shepardson v. Cole-rain, 13 Met. [Mass.], 55; Goodin v. Des Moines, 55 Ia., 67; Blake v. Newfield, 68 Me., 365; Chicago, B. & Q. R. Co. v. Barnard, 32 Neb., 306; People v. Cook, 8 N. Y., 67; Kelsey v. Northern Light Oil Co., 45 Id., 509; Neuendorff v. World Mutual Life Ins. Co., 69 Id., 389; Baulea v. New York & H. Ry. Co., 59 Id., 356; Toomey v. South Coast Ry. Co., 3 C. B. n. s. [Eng.], 146; Hyatt v. Johnston, 91 Pa. St., 200; Ryder v. Wombwell, L. R. 4 Exch. [Eng.], 39; Schuylkill & Dauphin Improvement Co. v. Munson, 14 Wall. [U. S.], 442; Pleasants v. Pant, 22 Id., 120; Commissioners of Marion Co. v. Clark, 94 U. S., 284; Griggs v. Houston, 104 Id., 553; Bagley v. Cleveland Rolling Mill Co., 21 Fed. Rep., 159 ; Bagley v. Bowe, 105 N. Y., 179; Bulger v. Rosa, 119 Id., 460; Longley v. Daley, 46 N. W. Rep. [So. Dak.], 247.</p>

<p>Master and Servant: Justification for Discharge of Servant Before Expiration of Term of Employment : Evidence. The plaintiff was employed for one year at a salary as superintendent and general manager of a large packing house, but was discharged before the expiration of the year. In an action to recover salary for the time after his discharge, held, that the proof showed such neglect of duty on his part as to justify his discharge.</p>

<p>Error from the district court of Saline county. Tried below before Morris, J.</p>

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

<p>Additional Representation in Congress: Election Proclamation:-Mandamus to Governor: Jurisdiction. .By the apportionment act of February 7, 1891, Nebraska is entitled to six representatives in congress after the 3d day of March, 1893. In an action to compel the governor to call • an election for three additional members of congress to fill a vacancy caused by the want of representation in the present congress, held, that the question was a political and not a judicial one; that by reason of improved methods the census was more rapidly taken and the returns classified than formerly, so that the population of each state was known a few months after the enumeration was made, and that to deprive those states entitled to increased representation for two years was unjust, but congress must provide the remedy.</p>

<p>1. Railroad Companies: Damage by Fire From Locomotive: Negligence. In an action to recover damages for loss occasioned by railway fires it devolves on the plaintiff to prove by a preponderance of the evidence that the fire was communicated by sparks or cinders from the railway engines.</p> <p>2. -: -:--: Evidence. It need not be proved that any particular engine was at fault, but it will be sufficient if it is proved that the fire was set by any engine passing over the defendant’s railway, and the evidence may be wholly circumstantial, as, first, that it was possible for fire to reach the plaintiff’s property from the defendant’s engines, and, second, facts tending to show that it probably originated from that cause and no other.</p> <p>3. -: -: Proof of Negligence Unnecessary. "Where the proof shows that a fire originated from an engine running over the defendant’s railway, it is unnecessary for the plaintiff to show affirmatively any defect in the construction or condition of the engine, or any negligence in its management. Negligence will he presumed from the fact that fire was set out.</p> <p>4. Review: Evidence held to sustain the verdict, and there is no-material error in the record.</p>

<p>1. Remedy for Indefinite Pleadings. Where the allegations of a pleading are indefinite, the remedy is hy motion to have the same made more definite and, certain.</p> <p>2. Action to Recover Penalty for Taking Usurious Interest : Right of Inspecting Defendant’s Books : Order for Inspection: Power.of Court. The plaintiff in a civil action made a written demand upon the defendant for an inspection and copy, or permission to take a copy, of certain specified entries in a. certain book belonging to, in the possession of, and under the control of the latter, relating to the merits of the suit, which demand was not complied with within four days. Held, That under section 394 of the Code the court in which the action is pending, or the judge thereof in vacation, has the power, on motion and notice to the defendant, to order that an inspection and copy, or permission to take a copy, of such entries shall be given within a specified time, and on a failure of the defendant to comply with such order, the court may exclude the entries from being given in evidence, or-if wanted as evidence by the plaintiff, may direct the jury to presume them to be such as the plaintiff by affidavit alleges them to be.</p> <p>3. -: Limitation. The limitation of two years within which suit may be brought against a national bank, under section 5198 of the Revised Statutes of the United States, for taking usurious interest, begins to run from the time when the usurious interest is paid.</p>

<p>Error from the district court of Holt county. Tried below before Kinkaid, J.</p>

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

<p>1. Receipt: Contract: Parol Testimony. A written receipt may be explained or contradicted by parol testimony. But when it embodies a contract it cannot be contradicted, but is conclusive upon the parties, in the absence of fraud or mistake. Rule applied.</p> <p>2. Certificate of Deposit: Interest: Demand. In an action upon a demand certificate of deposit it was held, in the absence of any agreement as to interest, that interest is to he computed at the rate of seven per cent from the time payment of the certificate was demanded of the defendant, and in case no such demand has been made, then from the date of the commencement of the action.</p> <p>3. Evidence: Instructions. Held, That there is no error in the charge of the court, and that the evidence sustains the verdict of the jury.</p>

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

<p>Ejectment: Proof of Adverse Possession: Review. Evidence examined, and held to sustain the finding and decree of the district court.</p>

Error from the district court of Lancaster county. Tried below before Tibbets, J. Joseph S. Barwick brought suit against The Unioii Insurance Company of California and The German-American Insurance Company of New York, to recover upon their policies the amount of insurance written by each upon his wholesale stock of cigars and tobacco. The causes were tried together, and judgment rendered against each of the defendants.

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

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

<p>1. Railroad Companies: Negligence : Fences : Gates at Farm: Crossings. Under the statute, where a railway has been in operation in any county of the state for six months, it is its duty to erect and maintain on the sides of its road, except at crossings of public roads and within the limits of cities and villages, suitable and amply sufficient fences to prevent cattle, horses, etc., from getting on the railroad. Gates at farm crossings are a part of the inclosure of the railroad and must be suitable and .amply sufficient to prevent stock from getting on the track.</p> <p>2. -: --: Action to Recover Value of Stock Injured and Killed on the Track. Seld, That the petition states a cause of action.</p> <p>3. -: Negligence in Maintaining Gateway and in Handling Trains: Evidence: Instructions set out in the opinion are not erroneous.</p> <p>4. -:-:-: Instructions set out in opinion held properly refused.</p>

Error from the district court of Douglas county. Tried below before Hopewell, J. The officer executing a writ of replevin is not liable for the sufficiency of the sureties on the replevin bond where the defendant fails to except thereto. (Wester veil, v. Bell, 19 Wend. [N. Y.], 531; Wilson v. Williams, 18 Id., 585; Cobbey, Replevin, sec. 695.) A constable who approves the sureties on a replevin bond is protected by the provisions of sec. 189 of the Code.

<p>1. Revivor of Judgment by Default: Defense: Defective Service of Summons. Where service upon a defendant is made by leaving a copy of the summons at his residence and judgment is taken against him thereon by default, he may, in an action to revive the judgment, show that the place of service was not his place of residence; that he nor any member of his family had notice of the action until after judgment had been rendered against him, together with any other defense to the judgment.</p> <p>2. -: -: Review: Injunction. In an action to revive a dormant, judgment certain defenses were set up which tended to show that the court when it rendered the judgment had no jurisdiction of the defendant and that he had a defense to the action. A demurrer to the answer was sustained. Held, That the defendant should have prosecuted error from the ruling on the answer and that he could not bring an action by injunction to enjoin the judgment and set up substantially the same facts as were set forth in his answer.</p>

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

<p>Error from the district court of Cass county. Tried below before Field, J.</p>

<p>1. Evidence: Verdict: Review. The evidence being in writing and practically undisputed as to the amount due the plaintiff, a verdict for a sum greatly less cannot be sustained.</p> <p>2. Private Banks: Corporations: Liability of Stockholders: Unpaid Stock. W. and T. were conducting a private bank at L., and on November 1, 1887, organized a corporation with an alleged capital of $50,000, of which they retained a controlling interest. They turned over the deposits and assets of the private bank to the new corporation, and notes were taken from a number of the stockholders for the amount of their stock. Held, That the stockholders were liable for the unpaid stock held by each, and for a sum equal to the shares so held by each for all liabilities of the bank accruing while he was a stockholder.</p> <p>3 De Facto Corporations. The proof tends to show a de facto corporation and not a partnership.</p> <p>4. Banks: Failure to Publish Notice op Condition: Liability op Stockholders. The debts having been contracted by the bank before it was in default, the provisions of sections 136 and 139 of the corporation law do not apply.</p> <p>5. Misjoinder of Causes of Action: Waiver op Defect. Where there is a misjoinder of causes of action which plainly appears on the face of the petition, the adverse party should demur for that cause. If he fails to do so he will waive the defect.</p>

Tried below before Appelget, J. The plaintiff in error was indicted for fraudulently disposing of mortgaged property. Prom an order overruling his plea in abatement he commenced a proceeding in error. Dismissed. The writ of error is available to any person convicted of a crime, but can issue only in those cases where the judgment of the lower court is final. In this case the plaintiff in error has been convicted of no crime, nor has-final judgment been entered.

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

Exceptions to the decision of the district court for Fillmore county, Morris, J., presiding. Filed under the provisions of section 515 of the Criminal Code. Except tions overruled.

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

<p>1. De Facto Officer: Payment of Salary: Liability of County to De Jure Officer: Mandamus. Where a county has once made payment of the salary of a county office, to one actually in possession of the office, performing its duties with color of title, before his right to the office has been determined against him by a competent tribunal, it cannot afterwards be compelled to pay the same salary to the de-jure officer.</p>

Tried below before Tibbets, J. The ordinance requiring the street railway company to constitute its conductors agents for the sale of tickets is illegal and void. It is unreasonable and exceeds the police power of the state.

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

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

<p>1. False Pretenses. In a prosecution for obtaining money by false pretenses the gist of the offense consists in obtaining the money of another by false pretenses, with the intent to cheat and defraud.</p> <p>2. -: Evidence. The proof tends to show that the accused acted in good faith and in the reasonable belief that the draft would be paid.</p>

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

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

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

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

<p>1. County Officers: Ineligibility: Authority of County Board to Declare Vacancies and Make Appointments: Hold-Over Officers. A county board is not authorized to declare vacant a county office and make an appointment to fill such vacancy on the sole ground that an officer electis ineligible and therefore unable to qualify. The incumbent of such office has a right to qualify within ten days after it is ascertained that his successor elect is ineligible, and upon qualifying in the manner provided by law will be entitled to hold over until a successor is elected and qualified.</p> <p>2. -: Action to Recover Emoluments from De Facto Officer. Where a claimant of an office sues a de faeto officer to recover the emoluments thereof received by the latter, the plaintiff’s title to the office is put in issue, and in order to recover he is required to prove that he is the de jure officer.</p> <p>3.--:-: Hold-Over Officer: Sufficiency of Evidence. Evidence examined, and held not sufficient to sustain a finding that the defendant in error qualified as treasurer of D. county in the manner and within the time prescribed by law, so as to entitle him to hold over as his own successor, the treasurer elect having been adjudged ineligible.</p> <p>4. -: -: Eligibility of De Facto Officer: Res AdJUDICATA. Held, That the judgment in State, ex rel. Richards, v. McMillen, 23 Neb., 385, is conclusive of the question of the eligibility of the relator therein to the office of treasurer of Dawes county by election at the general election in 1885, but not of his eligibility to said office by appointment in the month of January, 1886.</p>

<p>Review: Evidence in the record held sufficient to sustain the yerdict and judgment of the district court.</p>

<p>1. Eminent Domain: Condemnation Proceedings: Substitution op Indemnitor. A railroad company which has appro, priated private property for right of way purposes, on appeal to the district court from an award of damage is not entitled to have a third party substituted and made a party in its stead, on the ground that such person has agreed to indemnify it for money expended for right of way.</p> <p>2. Intervention. To entitle a third party to intervene in an action he must have some interest in the subject of the controversy. A mere contingent liability to answer over to the defendant, without any privity with the plaintiff, is not sufficient.</p> <p>3. Jury: Discretion op Trial Court: Review. In superintending the impaneling of a jury some discretion is necessarily confided to the court, and the excusing of a juror for came will not be held ground for reversal, unless there appears to have been an abuse of discretion.</p> <p>4. Eminent Domain: Trial op Appeal prom Award op Damages: Photograph op Premises: Evidence. Where on a trial an inspection of the premises in question is proper, but impracticable or impossible, a photographic view thereof is admissible.</p> <p>5. -: -: Evidence. On trial of a condemnation proceeding it was not error to admit evidence tending to prove that the property in question (a tract of twenty-one acres adjoining the city of Plattsmouth) was susceptible of subdivision into smaller lots, by reason of which it was more valuable, and that in consequence of the construction of the railroad track subdivision; thereof was rendered impossible, whereby the value of the tract was greatly impaired.</p> <p>6. -: -: -: Annoyance prom Passing Trains. In such case, proof of annoyance by smoke and ashes from passing trains is admissible where the railroad track is constructed near the dwelling of the property owner, not as an independent element of damage, but as evidence tending to prove the value of the property after the construction of the track.</p> <p>7. -: -: Witnesses: Volunteer Evidence: Exceptions: Review. Where a witness volunteers-testimony not responsive to any question, and which is immaterial under the issues, the complaining party should object thereto or move to strike it out of the record. A new trial will not be allowed on account of such volunteer evidence when no objection is made to it at the time of the trial.</p> <p>8. Vacancy of Highway: Reversion: Eminent Domain. Where a public highway is vacated and abandoned as such by lawful authority, the land included therein reverts to the abutting proprietors and cannot be appropriated by a railroad company for right of way without making compensation to such proprietors.</p> <p>'9. Evidence examined, and held, to prove a mere expression of opinion of parties named in the record, and not an offer of compromise, and is therefore admissible under the issues.</p> <p>10. Instructions set onfc examined, and held, notsubject to criticism by the plaintiff in error.</p>

<p>1. Judgments: Restraining Collection: Irregularities: Review. A court of equity will not enjoin the collection of a judgment at law on account of mere irregularities or errors on the part of the trial court. Errors at the trial or in the proceedings must be corrected in the trial court or by direct proceeding in the appellate court.</p> <p>H. Judgments by Default: Validity of Order Setting Aside: Irregularities: Assignment: Lien of Assignee : Cancellation. One Y. obtained judgment by default against P. in the county court of C. county. Within ten days thereafter P. filed a petition to vacate said judgment for various reasons, but containing all the allegations necessary to entitle him to have it set aside under the provisions of section 1001 of the Code. A summons was issued for Y. and personally served, giving him more than five days’ notice of the time set for hearing said petition. At the time named Y. appeared and demurred to the petition, but made no objection on the ground that P. had mistaken his remedy. The court having ordered that the judgment be set aside and P. allowed to answer, the case was continued from time to time on the application of Y. and finally dismissed for want of prosecution. Y. subsequently executed an assignment of said judgment to B., who procured a transcript of so much of the proceedings in the county court as included the judgment and caused it to be filed and docketed in the office of the district court of said county and demanded and threatened to procure an execution thereon and cause the lands of P. in said county to be sold to satisfy said pretended judgment. In an action by P. to enjoin such execution and levy and to remove the cloud upon his title caused by said pretended judgment, held, that the action of the county court in setting aside said judgment upon the petition instead of a motion was a mere irregularity and the order in question is not void for want of jurisdiction.</p> <p>3. Evidence examined, and held to sustain the decree of the district court.</p>

<p>1. Administration: Allowance to Widow: Appeal from County Court: Issues in Appellate Court: Juey Trial. On appeal by the executor or heir at law from an order of the county court making an allowance out of the funds of the estate-of a deceased person for the support of his widow, the district, court will try and determine the issues involved in the same manner as on appeals in civil cases. It is error in such case to refuse a jury trial upon the demand of either party to the controversy.</p> <p>2. Evidence examined, and held not to sustain the finding and judgment of the district court.</p>

<p>1. County Clerks: Deputies: Salaries: County Board. Under the provisions of sec. 42, ch. 28, Comp. Stats., where the fees of the county clerk exceed $1,500, the county hoard may appoint such number of deputies as may be necessary aud fix their salary at not to exceed §>700, the same to be paid out of the fees received by the clerk.</p> <p>2. -: -: -:-. Where the county board has appointed a deputy and fixed his salary, and he has actually rendered the service, those facts may be proved even if there is no record of the order in the minutes of the county board.</p> <p>3. County Board: Orders: Collateral Attack. Where the county board has before it a matter which it may reject or allow, and its action thereon will be final unless appealed from, its-order in the premises cannot be attacked collaterally, except, for fraud.</p>

<p>1. Contract to Convey Heal Estate: Laches: Specific Performance. One A. purchased certain real estate, and in pursuance of the contract entered into possession of the property and made improvements thereon. The contract contained a provision that time should be the essence of the contract. Held, That the circumstances of the case were not such as to make time the essence of the contract, and that a failure to perform at the day would not prevent the specific enforcement of the contract.</p> <p>2. -• : -: Waiver. Where time originally is the essence of the contract, and the contracting party intends to insist on the stipulation and to put an end to the contract, he must do no act that can be construed into a waiver of the stipulation.</p> <p>3. Tax Lien: Foreclosure: Decree: Title. A tax lien on the land itself takes precedence of all other liens, and a decree foreclosing the same, and a sale thereunder, where all persons affected thereby are before the court, transfers to the purchaser under the decree an absolute title in fee of the land.</p> <p>4. -: -: -: Redemption. If parties affected are not before the court their remedy is au action to redeem. If the court had jurisdiction the decree cannot be treated as void.</p> <p>5. Quieting Title: Equity. A plaintiff filed a petition to remove a cloud from his title caused by an outstanding contract for the sale of the land, and also to remove a cloud caused by a mortgage, which it was alleged was barred by the statute of limitations. Held, That to entitle him to affirmative relief he must do equity by paying the amount due on the mortgage ; but as the court had dismissed his petition for want of equity, he would not be required to pay the amount due on the tarred mortgage.</p> <p>6. Mortgage Foreclosure: Limitations. An action to foreclose a mortgage is barred in ten years from the time the debt becomes due, or from the date of the last payment or a new promise to pay the same, and under section 17 of the Code the time is not extended by the absence of the defendant from the • state.</p>

<p>Error from the district court of Saline county. Tried below before Morris, J.</p>

<p>Action to Declare Deeds Mortgages and Redeem Land: Compromise Before Trial: Enforcement. A conveyed certain real estate to B by an absolute deed to secure the payment of a loan. The trust character of this deed was recognized by the grantee, who at various times promised that upon a sale of the property he would pay him the surplus in excess of the loan and interest. Afterwards A brought an action against B to redeem, and offered to pay the loan with interest. While the action was pending A and B entered into a stipulation as to the amount which A should pay to B, whereupon he would recover the premises. Held, That in the absence of fraud or misrepresentation the agreement was binding upon the parties, and would he enforced.</p>

Original application for mandamus. The title to an office is not to be passed upon or adjudicated in mandamus. (State v. Jai/nes, 19 Neb., 161; People v. Goetting, 30 N. E. Rep. [N. Y.], 969.) The relat- or’s certificate of appointment, with his official bond, was prima facie evidence of his title to the office, and the only question for the county judge was the sufficiency of the bond and sureties. He could not inquire into the validity of relator’s title.

Error from the district court of Holt county. Tried below before Kinkaid, J. A defendant against whom, a judgment is rendered in the county court, by default and in his absence, has the right to appeal after he has applied to have the judgment set aside, under the provisions of see. 1001 of the Code, and been denied. (Clendenning v. Craioford, 7 Neb., 474; Oudtner v. Kilpatrick, 14 Id., 347; Adams v. Thompson, 18 Id., 543.)

<p>1. Bastardy: Evidence. In a prosecution for bastardy the guilt of the defendant is not required to be established beyond a reasonable doubt. In such a proceeding a preponderance of the evidence is sufficient.</p> <p>2. -: -. The evidence in the case, although conflicting, is sufficient to support the verdict.</p> <p>3. -: -: Review. The rulings of the trial court on the admission of testimony examined and approved.</p>

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

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

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

<p>1. Voluntary Assignment: Fraudulent Conveyance of Chattels by Assignor: Replevin by Assignee. The fact that a chattel mortgage was executed a few hours previous to the making of a voluntary assignment by the mortgagor for the benefit of creditors is not conclusive evidence of fraud so as to entitle the assignee to recover the mortgaged property as a part of the assigned estate.</p> <p>2. -: -:-: Rights and Authority of Assignee. Under the provisions of sections 42 and 43 of the assignment law, the rights of the assignee to recover property fraudulently transferred by the assignor are similar to those of a judgment creditor and must be enforced according to the forms of law. He is not authorized to forcibly seize and take property on the assumption that it was transferred by his assignor in fraud of the rights of creditors.</p> <p>3. Review: Evidence. Held, That the judgment of the district court is warranted by the findings of the referee.</p>

<p>1. Master and Servant: Contract: Discharge of Employe: Action for Damages: Allegations and Proof. In an action for wrongful discharge before the termination of his employment, the plaintiif must show that he is ready and willing to complete his contract.</p> <p>2. -: -: -: -: -. S. contracted for the service of himself and son for a given time at the rate of $50 per month. He alone went into the service of H., his employer, and was subsequently discharged before the termination of the period named in the contract. It does not appear that he ever tendered the services of his son, or that the latter was ready or willing to enter the employment of H. Held, That the discharge of S. was not a breach of the contract for which he could recover in an action for being wrongfully discharged, although he may recover in a proper action for the value of his services.</p>

Error from the district court of Gage county. Tried below before Broaly, J. There is no proof of the posting of notices of sale as required by Gen. Stats., sec. 56, p. 286; sec. 83, p. 291; sec. 90, p. 292, sec. 404, p. 593. Proof of posting the notices should be made by affidavit of the party who posted the same, stating when, where, and by whom the notices-were posted.

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

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

<p>Error from the district court of Cedar county. Tried below before Powers, J.</p>

<p>1. Mandamus: A Relator having a personal right to he enforced by mandamus may bring an action in the name of the state on his relation.</p> <p>2. -: Trust Funds Held by Clerk of District Court. On the facts stated in the petition, the defendant held the money and notes in controversy as trustee, and it was his duty to pay and deliver the same to the parties entitled thereto.</p> <p>3. --: Demurrer Overruled and leave given to answer in five days.</p>

<p>Error from the district court of Cass county. Tried below before Field, J.</p>

<p>1. Conviction for Larceny: Evidence Held Insufficient to sustain the verdict.</p> <p>2. Criminal Law: Larceny: Examination of Witnesses. To justify the proving of contradictory statements of a witness for the purpose of impeaching him, the answer of the witness on cross-examination must be material so that the cross-examining party would be allowed to give it in evidence. (Smith v. State, 5 Neb., 181.)</p> <p>3.-: Character of Accused: Impeachment of Witnesses. Where a person on trial for a crime has not himself put his general character in issue, the state cannot do so on the pretext of impeaching a witness by disproving the statements of the witness.</p>

<p>1. Attachment: Indemn ifying Bond. An officer in whose hands an attachment is placed to be levied upon goods of the debtor in the action may, where there is doubt as to the ownership of the goods, demand an indemnifying bond from the plaintiff in the attachment.</p> <p>2. -: Action on Indemnifying Bond: Fraud by Officer Executing Writ: Pleading. If an officer, by collusion and fraud, should permit a judgment to be wrongfully rendered against him, these facts may be pleaded to an action on such bond, together with a statement of the plaintiff in attachment that the property levied upon was that of the debtor in attachment.</p> <p>3. -: -: -: Defense. The fact that an officer permits judgment to be rendered against him for an alleged-wrongful levy without making a defense, although a circumstance which with others may show fraud, yet in order to do so it must appear that a defense was available.</p>

Error from the district court of Cuming county. Tried below before Powers, J. Gardels filed a motion to open the judgment and be allowed to defend, supported by affidavits, showing that as soon as summons had been served upon him he had employed counsel to defend the suit, and that he only failed to make a defense because he was led to believe that the action would be dismissed. This motion should have been sustained.

<p>Review. Where the principal error relied upon is that the verdict is against the weight of evidence the verdict will not he set aside, unless it is clearly wrong.</p>

<p>Action, for Wrongful Sale of Land by County Treasurer: Proper Party Plaintiff : Holder of Legal Title. One M. purchased certain lands at tax sale and had the certificates and deeds made to one A., his sister. He testified that he had money belonging to her to invest and that he purchased the property in question. It was sought to impeach this testimony by showing that after the purchase he had made statements that on account of domestic difficulties he had taken the title in the name of his sister. Held, That as the money paid purported to be that of the sister and the titles were taken in her name she could maintain an action against the county treasurer and his sureties for the wrongful sale of the property.</p>

Appear from the district court of Holt county. Heard below before Kinkaid, J. A promise in a note to pay attorneys’ fees is valid and may be enforced where suit is brought upon default in payment. (Harvey v. Baldwin, 24 N. E. Rep. [Ind.], 347; Roisterer v. Carpenter, Id., 371; Smock v. Ripley, 62 Ind., 81; Ogborn v. Eliason, 77 Id., 394; Smith v. Silvers, 32 Id., 321; Farmers & Merchants National Bank v. Barton, 21 Ill.

<p>Error from the district court of Webster county. Tried below before Gaslin, J.</p>

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

<p>Error Proceedings: Review: Motion for New Trial. This court will not review alleged errors occurring during the trial of a cause in the district court by petition in error, unless a motion for a new trial was made in the trial court, and a ruling obtained thereon.</p>

<p>1. Municipal Corporations: City Council: Ordinances. In a city of the second class, containing a population of less than five thousand, an ordinance of a general character may be presented, read, and adopted by the city council thereof on the same day, provided the rule requiring such ordinances to be fully read on three different days is dispensed with by a vote of three-fourths of the members of the council.</p> <p>2. -: Liquor Licenses: Ordinances. Certain provisions contained in the ordinance of the city of Gr., regulating the license and sale of liquors, held valid.</p> <p>3. -: --. No license for the sale of intoxicating liquors, issued by a city of the above class, cau extend beyond the municipal year in which it shall be granted.</p> <p>4. -: -: Notice of Application. Action cannot be taken by a city council on an application for a liquor license until at least two weeks’ notice of the filing thereof has been given in the mode provided by law.</p> <p>5. -:-: Petition for License : Remonstrance : Burden of Proof. Where a remonstrance in opposition to an application for such a license denies that the petition is signed by the requisite number of resident freeholders, the burden is upon the applicant to prove by competent evidence that the same is signed by the required number of qualified petitioners, and if he fails so to do, a license should be refused.</p> <p>45. -: -: -. It is not necessary to state in such a petition whether the applicant desires to sell at wholesale or retail.</p>

<p>Error from the district court of Lancaster county. Tried below before Hall, J.</p>

Original application for mandamus to compel the respondent, ás treasurer of Hamilton county, to offer at public sale all lands and lots upon which the taxes assessed, for the year 1891 remain delinquent.

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

<p>Voluntary Assignments: Chattel Mortgages: Fraud. Where a chattel mortgage was made and taken by a creditor of the mortgagor upon all his property, its purpose being not only to secure a debt due the mortgagee, but also to secure other creditors of the mortgagor not named therein, whose rights are not expressly reserved from the operation of the assignment law of this state, such mortgage is held void as an irregular, prohibited voluntary assignment.</p>

Heard below before Bates, J. The civil courts having no ecclesiastical jurisdiction, cannot review or question ordinary acts or church discipline, or excision, and only have judicial power in eases arising from conflicting claims of parties to the church property and the use of it.

Heard below before Chapman, J. When the mode agreed upon for fixing the price is not the essence of a contract to convey real estate, and the agreement is substantially for a sale at a fair price, upon a failure of the parties to determine the amount, the court, looking to the substance rather than to the form of the contract, will adopt some other means of arriving at the price, and of thus carrying out the agreement in its essential features.

<p>1. Appropriation for Library Building for State University : Auditor or State: Vouchers. Under the provisions of the act making an appropriation for the current expenses of the state for the years ending March 31, 1892, and March 31, 1893, etc., approved April 6, 1891, whereby an appropriation of $37,000 was made for fire-proof library building at the state university, no part of said appropriation can be drawn except upon proper vouchers filed with the auditor of public accounts.</p> <p>2. -: Disbursement or Money: Definition of Voucher. The term “ voucher,” when used in connection with the disbursement of money, means a written or printed instrument in the nature of a bill of particulars, account, etc., which shows on what account and by what authority a particular payment has been made.</p> <p>3. -: -: Vouchers. There is no authority for the secretary of the board of regents of the state university to draw any money appropriated for the university or any of its buildings except upon vouchers duly certified.</p> <p>4. Appropriations by Legislature: Lapse. No appropria- . tions made by the legislature will lapse before the end of the first fiscal quarter after the adjournment of the next regular session, unless there is a special provision in the act itself providing that if it is not used by a certain time that it shall lapse.</p> <p>6. The fiscal year begins on the first day of December of each year.</p>

Error from the district court of Holt county. Tried below before IIopewele, J. The plaintiff nowhere alleges that she is or was at the time of the alleged conversion the owner or entitled to the possession of the note which she accuses the defendants of having wrongfully and unlawfully converted to their own use. The petition does not state a cause of action.

<p>Negotiable Instruments: Bona Fide Purchaser: Evidence: Review. Where undisputed proof showed a want of consideration for a promissory note, and the proof fails to clearly establish the fact that the plaintiff was a bona fide purchaser for value before maturity, a verdict and judgment in favor of the defendant will not be set aside.</p>

<p>1. Action to Quiet Title: Deed: Forgery: Evidence. In an action to set aside a deed as a forgery, the deed, together with a signature of the grantor, which was admitted to he gen- : nine, and received in evidence, were examined through a microscope and the signature of the grantor to the deed held to he genuine.</p> <p>2. -: -: -: -. The oral testimony tended to-prove that the deed was genuine.</p> <p>3. Deed: Certificate of Acknowledgment: Impeachment. Where a deed is acknowledged in due form before a proper officer, it can be impeached only by clear, convincing, and satisfactory proof that the certificate is false and fraudulent.</p>

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

<p>1. Married ■Women.: Liability foe Necessaeies foe Family. Under the provisions of section 1, chapter, 53, Compiled Statutes, which declare “ that all property of a married woman not exempt by law from sale on execution or attachmenf'shall be liable for the payment of all debts contracted for necessaries furnished the family of said married woman after execution against her husband for such indebtedness has been returned unsatisfied,” the wife is in fact surety for her husband and judgment must be recovered against her before her separate es" tate can be levied upon and sold for such necessaries.</p> <p>2. -: -: Pleading. If from the facts stated in a petition it appears that the plaintiff is entitled to any relief, a general demurrer will not lie.</p>

<p>1. Bill of Sale : Goods Subsequently Mingled with Property Transferred. The owner of a mill executed a bill of sale to a bank on a large quantity of flour, feed, and other property in the mill. Prior to the execution of the bill of sale the mill owner had ordered several cars of wheat lroin a warehouse-man in another county, and one car so ordered was shipped one day after the execution of the bill of sale and two days thereafter received at the mill, and a portion or all ground into flour and mixed with the stock in the mill. Held, That in no event did the bill of sale cover that wheat, and the person who claimed to be the owner of the mill was liable for the value of the wheat.</p> <p>2. -:-: Review: Harmless Error. Where the proof on the essential facts in the case is practically undisputed and the verdict conforms to the proof, the verdict will not be set aside even if some of the instructions are not entirely accurate.</p> <p>S. -: -. Where personal property, such as wheat, has been delivered to a mill and wrongfully converted into flour and stored with other flour belonging to the mill owner, the owner of the wheat will be entitled to such portion of the flour as the wheat would probably produce.</p>

<p>Subrogation.: Payment op Notes by Surety. One A mortgaged her separate estate to secure loans from a bank in favor of a private corporation to the extent of $5,000. It was agreed that as each loan was effected the corporation should deposit notes held by it as collateral security for the loan, the security given by it to be merely contingent. A large number of loans were made in this way and notes as collateral deposited with the bank. Afterwards the bank required A to pay the amount due to it. This she did by mortgaging her separate estate, and she thereupon received from the bank the collateral notes held by it. Held, That the testimony clearly established the fact that the notes were held by the bank in good faith before due to secure a loan and debt, and that as A, as surety, had paid the same, she was subrogated to the rights of the bank and stood in its place.</p>

<p>Error from the district court of Boone county. Tried below before Harrison, J.</p>

<p>1. Chattel Mortgage Upon Growing Crops: Notice: Lien: Purchaser of Grain When Harvested. A mortgage upon growing corn is not constructive notice to a dealer in grain who, in good faith, in open market purchases such corn from the mortgagor after the same has been husked by the latter and placed in a pile or crib. But the rule does not prevail where the person who assisted in husking the corn afterwards becomes the purchaser, while it is yet in the same pile or crib, and receives it there, having at the time actual knowledge that it is the same corn he helped harvest. In such case the purchaser will take the corn subject to the lien of the mortgage.</p> <p>2. Joint Owners of Crop: Demand for Division: Replevin. Where corn in a single pile or crib, owned by two tenants in common, is in the exclusive possession of one of such owners, but both being equally entitled to the possession thereof, the other joint owner, if his co-tenant refuses a division when properly demanded, may recover his portion of the grain by an action of replevin.</p>

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

<p>Error from the district court of Dawes county. Tried below before Kinkaid, J.</p>

<p>Error from tbe district court of Saline county. Tried below before Morris, J.</p>

<p>Error from tlie district court of Lancaster county. Tried below before Tibbets, J.</p>

<p>Evidence in the record examined, and held to sustain the finding of the referee in favor of the claimant.</p>

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

<p>Appeal and error from the district court of Platte county. Heard below before Post, J.</p>

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

<p>Error from the district court of Hall county. Tried below before Harrison, J.</p> <p>The city is under no obligations,to make its sidewalks convenient; is under no obligation to any private individual to lay down any walks. The duty imposed upon it by law to repair streets, like its duty to light them, is a duty which courts cannot enforce, although a citizen may suffer injury from the non-action of the city. (City of Freeport v. Isabell, 83 Ill., 442; City of Joliet v. Verley, 35 Id., 58; Sparhawk v. City of Salem, 1 Allen [Mass.], 30; Macomber v. City of Taunton, 100 Mass., 255.)</p> <p>City of Lincoln v. Walker, 18 Neb., 250; Palmer v. City of Lincoln, 5 Id.,, 136; City of Lincoln v. Smith, 28 Id., 762; City of Omaha v. Randolph, 30 Id., 699.</p>

<p>1. Creditor’s Bill: Gtpt: Liability op Third Party: Evidence. The testimony 'tends to show that in 1882, one C., then worth at least $5,000, erected a house and made improvements on the land of his mother, which cost to exceed $2,000. He continued to assist her in a limited degree until 1886, when he died insolvent. In an action by a creditor whose claim had nearly all been contracted after 1882, and who received payment of her share of the assets of the estate of 0. pro rata with other creditors, to subject the estate of the mother to the payment of the residue of her claim, held, that the proof failed to show that 0. was insolvent when he assisted his mother, or that his assisting her caused his insolvency, and that the mother’s estate was not liable.</p> <p>2. --: Evidence. There is proof that would warrant the court in finding that his mother, about 1880, loaned C. $1,050.</p>

<p>1. Criminal Law: Arairs-uoN op Incompetent Evidence: Error Not Cured by Order to Strike Out. In a criminal prosecution, evidence which on its face is clearly incompetent and prejudicial to the accused should not be introduced, and if the prosecution, without a promise to prove other faois to render it competent, is permitted to introduce such evidence and it is thus placed before the jury, an order of the court afterwards made to strike it out does not wholly cure the wrong and may be cause for reversing the judgment.</p> <p>2. Letters written by third parties in another state to third .parties in this, but not in answer to letters written by the accused nor connected therewith, are not admissible in evidence against the accused to prove a material fact in the case.</p>

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

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

Error from the district court of Greeley county. Tried below before. Coffin, J. The issuance of an order of attachment is a ministerial duty and not prohibited on legal holidays by statute. (Place v. Taylor, 22 O. St., 322; In re Worthington, 7 Biss. [U. S.], 455; Glenn v. Eddy, 17 Atl.

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

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

<p>1. Mortgage Foreclosure: Effect of Decree by Default. The rule is that a default by a party defendant is a confession only of such matters as are properly alleged in the petition or complaint. But a recognized exception to that rule is that where in a foreclosure or other kindred proceeding a defendant, who is called upon to disclose and set up his supposed but unknown interest in the subject of the action, makes default, he will be held to have admitted that his interest therein is subject to that of the plaintiff.</p> <p>2. A judgment of a court upon a subject within its general jurisdiction, but which is not brought before it by any statement or claim of the parties, and is foreign to the issues submitted for its determination, is a nullity.</p> <p>3. Mortgage Foreclosure: Default : Decree. In a foreclosure proceeding by N. against the M. Bank, a subsequent mortgagee, and V., their common mortgagor, it was alleged that “The M. Bank claims some interest in the premises, the nature and extent of which is to the plaintiff unknown, but is subordinate te plaintiff’s claim, wherefore plaintiff asks that it be compelled to set the same up or be forever barred.” The defendants all having made default, a decree of foreclosure was entered in which it was found that the M. Bank had no right, title, or interest in the mortgaged property. In a subsequent action by the M. Bank to foreclose its mortgage, held, that the former decree cannot be pleaded as a bar by V. or his grantees.</p>

<p>Error from the district court of Greeley county. Tried below before Harrison, J.</p>

<p>1. Inland Bills of Exchange: Protest. The term “protest,” as applied to inland bills of exchange, includes only the steps-essential to charge the drawer and indorser.</p> <p>2. Bank Checks: Liability op Indorser: Dishonor: Notice. Bank checks in this country are regarded as inland hills of exchange for the purpose of presentment and demand, and notice of dishonor, and do not require a formal protest in order to-charge the indorsers.</p> <p>3. -: Days op Grace: Presentation. They are also due upon presentation, and not entitled to days of grace.</p> <p>4. -: Liability of Indorsee for Collection for Failure. to Protest: Time for Notice. A bank receiving for collection from a correspondent checks drawn upon it by a customer with instructions to protest in case of non-payment, is required, in case payment is refused for want of funds, to give notice to the bank from which they were received not later than the next.</p> <p>day after the dishonor. And when they are held for two days in order to enable the drawer to provide funds for payment thereof a jury will be warranted in finding that the bank intended to accept them and become liable thereon.</p> <p>5. -: -: — : Effect of Delivery to Notary. The general rule is that where a bank delivers a note or bill to a notary public for demand, protest, and notice, it will not be liable for the default of the latter.</p> <p>6. -: -: -: Notary Agent of Bank. But where such bill remains in the bank to be protested for non-payment by the president and manager thereof, a notary public, and who, although aware of the instructions to the contrary, delays noting for protest or giving notice, in consequence of which the indorsers are discharged, such notary will be held to be the agent of the bank, and the latter will be liable for his negligence.</p>

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

<p>1. Attachment: Chattel Mortgages. In the action of an attaching creditor against the debtor, the validity of chattel mortgages made by the debtor to other parties cannot, as agaii.st. such mortgagees, be adjudicated.</p> <p>2. -: Hearing of Motion to Dissolve: Eights of Mortgagor of Attached Chattels. As between plaintiff and defendant alone, upon motion to dissolve an attachment of the chattels mortgaged, the defendant can be heard only because of his residuary, contingent interest which may remain after the said mortgages are satisfied.</p>

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

<p>1. Malicious Prosecution: Pleading. O. charged J. before a justice of the peace wiib the commission of a criminal offeDse. The jury found J. not guilty, and made a special finding in these words: “and that the complaint was made without probable cause.” J. then sued O. for damages, alleging that the prosecution was malicious and without probable cause, and set outiu his petition the special finding of the jury. Held, That it was error to everrule O.’s motion to strike such special finding out of the petition.</p> <p>2. -: Evidence. On the trial J. offered in evidence the verdict of the jury acquitting him of the offense with which O. charged him before the justice of the peace. Held, That that part of the verdict acquitting him was competent, although O. ’s answer admitted that J. had been tried and acquitted. Held further, That it was error to permit the said special finding to be read in evidence to the jury.</p> <p>3. -: -: Harmless Error. The foregoing errors were, however, cured by the instructions of the court, and in this case were held to be without prejudice.</p>

<p>1. Creditor’s BillStatute of Limitations. Under section 12, Civil Code, an action for relief on the ground of fraud can only he commenced within four years after a discovery of the facts constituting the fraud.</p> <p>2. -: -: Fbaudulent Conveyances: Attachment op Pbopebty Fbaudulently Conveyed. The cause of action mentioned in said section is the fraudulent act complained of; and the cause of action accrues when discovered, and it is discovered when the party seeking relief is in possession of sufficient facts to put a person of ordinary intelligence and prudence on an inquiry, which, if pursued, would lead to a discovery of the fraud; and the statute begins to run against a creditor from the discovery of the fraudulent act on the part of his debtor, whether the creditor’s claim has been reduced to judgment or not, as he is not limited to a creditor’s bill in order to obtain relief on the ground of fraud, but may attach the property fraudulently conveyed. Irvine, C., dissents.</p> <p>8. -: -: -: DISCOVERY OE Fraud BY CREDITOR-A party defrauded must be diligent in making inquiry. Means of knowledge are equivalent to knowledge. A clue to the facts which, if followed up diligently, would lead to a discovery, is, in law, equivalent to a discovery. Accordingly, where a party was known by her creditors to have recently failed in business and to be insolvent, conveyed all her real estate by deed recorded October 28, 1884, in the county where she resided; and she, in. conversation with her creditors at that time, said that the object of the conveyance was to beat her foreign creditors; that she had been advised to put her property out of her hands; that she intended to put her property in other hands until she could settle matters; that she had made arrangements by which she could pay all her home creditors; that there were some debts she did not feel bound to pay; that the object of the deed was to secure a debt to the grantee, and the surplus to be paid her; it was held, that these facts were a discovery by the creditors on the date of the recording of said deed that the same was fraudulent.</p> <p>A -: -: -: -: Registration of Fraudulent' Deed. It seems that the fraud, within the meaning of said, section 12, is discovered when the fraudulent deed is recorded in the county where the debtor lives.</p> <p>B. -: -: -: -. On the 28th day of October,. 1884, C., being largely indebted to various parties, conveyed all her property, four city lots, to one R., with a secret agreement between them that R. should sell the lots and retain the amount of the debt owing him by C., and return the surplus property, orproceeds thereof, to C., or such person as she might designate. Held, That this was a fraud on the other creditors of C., but, as this fraudulent conveyance was discovered by them on the date of its record, their suit to set it aside, commenced more than, four years thereafter, was barred; but where it also appeared that while R. held the title to the said four lots, he agreed with C. that if she would find a purchaser for, or sell them, he would pay her, as commissions, all that remained of the lots or their proceeds after the payment to him of her debt. Two of the lots, were sold, R. ’s debt paid, and at C. ’s request the remaining two lots were conveyed to her husband without consideration. Held, That the two lots thus conveyed were C.’s property, acquired from R. by purchase, and were conveyed to C.’s husband for the purpose of defrauding her creditors. Held further, That this was not a continuation or consummation of the fraud of October 28, 1884, but a new and independent one, and as the suit of C.’s creditors to set aside the conveyance of October 28, 1884, also assailed this conveyance of the two lots purchased by C. from R., and conveyed to her husband, and was commenced within four years of the recording of such conveyance, it was not barred as to the lots purchased by C. of R.</p>

<p>Assumpsit: Quantum Meruit: Pleadinq: Prooe: Instructions. Allegations of value in a pleading are not to be taken as true by a failure to deny them; and in all eases founded upon a quantum meruit, where the value of the services is not expressly admitted, the question of value is in issue and must be proved, and submitted to the jury.</p>

<p>Error from the district court of Saline county. Tried below before Morris, J.</p>

<p>1. Chattel Mortgages: Agreement of Mortgagees as to Priority: Fraud. A junior mortgagee of chattels, who agrees with the senior mortgagee and the mortgagor that the goods mortgaged may be sold and the proceeds applied to the payment of the mortgages in the order of their priority as disclosed by the records, cannot, after such sale and appropriation of the proceeds, maintain an action to avoid the senior mortgage for fraud in its inception without proof that the facts constituting the fraud were discovered after the agreement and sale.</p> <p>2.'-: Action to Avoid for Fraud: Pleading. In an action to avoid a conveyance or mortgage for fraud the facts constituting the fraud must be specifically pleaded; a general allegation, of fraud is insufficient.</p> <p>3. -: Foreclosure: An agent for the purpose of selling Goods will not be permitted to sell to himself, even though the-sale be public, and no actual fraud appear. In case he do so, he will be required to account to his principals for any profit, he may have realized.</p> <p>4. --:-: Pleadings: Decree: Review. The findings- and judgment in a case must be based upon the pleadings. A decree in an action between a mortgagor and certain mortgagees of chattels, whereby a mortgage not attacked by the pleadings, and the holder whereof is not a party to the action, is declared void, is erroneous.</p> <p>5. -: -: Unlawful Sale: Rights of Unsecured' Creditors: Conversion. Unsecured creditors of a mortgagor of chattels are entitled to have the mortgages foreclosed as required by law, and a sale otherwise than as the law provides,, although in accordance with an agreement of the mortgagor and mortgagees, is no protection to those participating in the proceeds of the sale. They are liable to account to such creditors-for the value of the goods, less the valid liens thereon.</p> <p>6. -: Lien Upon Stock of Merchandise: Goods Subsequently Purchased. A mortgage upon a stock of merchandise, under that general description, attaches only to such merchandise as was in the stock when the mortgage was executed, and not to any afterwards purchased.</p>

<p>1. Information: Defect in Verification: Waiver. A defect in the verification of an information is waived by pleading to-the information.</p> <p>2. Marriage: Validity: Proof. Marriage is a civil contract requiring in all cases for its validity only the consent of parties capable of contracting. The fact of marriage may be proved by the testimony of one of the parties.</p> <p>S. Adultery: Evidence. Where a defendant is charged with adulterous cohabitation while living with his wife, proof of such adulterous cohabitation during any portion of the period laid in the information is sufficient to sustain the charge.</p> <p>4. -: -. A single act of adultery at a time outside of the period of adulterous cohabitation thus proved is a separate oft fense, for which the defendant may'be punished, although committed within the period of adulterous cohabitation laid in the information.</p> <p>5. -: Marriage Without Solemnizing Officer: Proof: Newly Discovered Evidence : New Trial. In a prosecution for adultery the only evidence of defendant’s marriage was that of the complaining witness, the woman alleged to be defendant’s wife. The marriage relied upon was by words of consent without the presence of a solemnizing officer or of witnesses. A new trial was asked on the ground of newly discovered evidence, the affidavits removing every question of negligence in procuring the evidence. The newly discovered evidence alleged consisted of the declaration of the complaining witness contradicting her testimony as to the marriage. Held, That under these circumstances the motion should have been sustained.</p> <p>6. Motion for Mew Trial: Newly Discovered Evidence. A motion for a new trial should be granted on the ground of newly discovered evidence tending to impeach a witness by showing declarations contradicting his testimony, where such evidence is of so controlling a character that it would probably .change the verdict.</p>

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

<p>Error from the district court of Seward county. Tried below before Bates, J.</p>

<p>Error from the district court of Hitchcock county. Tried below before Welty, J.</p>

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

<p>Error from the district court of Lancaster county» Tried below before Field, J.</p>

<p>Error from the district court of Douglas county. Tried-below before Doane, J.</p> <p>Von Phul v. Sloan, 2 Robinson [La.], 148, 38 Am. Dec., 207; Coolidge v. Payson, 2 Wheat. [U. S.], 75; Story, Bills of Ex. [4th ed.], sec. 249; Schimmelpennich v. Bayard, 1 Pet. [U. S.]; 284; Boyce v. Edwards, 4 Id., 118; Franklin Bank v. Lynch, 52 Md., 270; Murdock v. Mills, 11 Met. [Mass.], 14; Potts v. Whitehead, 23 N. J. Eq., 514; Anson, Contracts [2d Am. ed.], p. 22, 19*; Jordon v. Norton, 4 M. & W. [Eng. Exc. Rep.], 155; Hutchison v. Bowlcer, 5 Id., 535; Tiedeman, Commercial Paper [ed. 1889], sec. 228; First National Bank v. Bensley, 2 Fed. Rep., 609; Hatfield v. Phillips, 9 M. & W. [Eng. Exc. Rep.], 648; Ulster County Bank v. McFarlan, 5 Hill [N. Y.], 432; Nixon v. Palmer, 4 Seld. [N. Y.], 398; Fenn v. Harrison, 3 T. R. [Eng.], 757; Attwood v. Mannings, 7 Barn. & Ores. [Eng.], 278.</p>

<p>1. Real Estate Brokers: When Eight to Compensation Accrues. Where a real estate broker is employed to procure a purchaser of real property, he is entitled to compensation when he has secured a proposed purchaser ready, able, and willing to buy the property on the terms and conditions upon which the said broker is authorized to procure such purchaser. This right to compensation will not be impaired by the subsequent inability or unwillingness of the owner to consummate such sale on the terms prescribed.</p> <p>2.. Witnesses: Cross-Examination: Exception: Discretion OF Trial Judge. The presiding judge, of necessity, is vested with a sound judicial discretion as to limiting the cross-examination of a witness, and where the same question has been three-times propounded, it is not error to prohibit a like question to-be again asked under penalty of forbidding further cross-examination. No exception thereto having been taken, there is in this-court no reviewable question presented.</p>

<p>1. Vendor and Vendee: Judgments: Impeeeeot Index and Docket Entry: Lien on Real Estate: Constructive Notice. The party’s true name was Mary Ann Allely, and she held her real estate by conveyance of record under the name of Mary A. Allely. Held, That a judgment against her, indexed and docketed in the office of the clerk of the district court, “McKaig & Co. v. May Alley,” was not constructive notice to a purchaser of the real estate from Mary Ann Allely.</p> <p>2. Deeds: Identity of Names: Bona Fide Purchasers: Defective Index of Judgment: Constructive Notice. The indexes in the office of the register of deeds disclosed conveyances as follows: “- to Mary A. Allely, deed; Mary A. Allely to Hooper, mortgage; Mary A. Allely to Yickars, mortgage.” Held, That Yickars, by taking a deed of the real estate from Mary A. Allely, so described in body and acknowledgment of the deed, but signed Mary A. Alley, was not thereby charged with notice that a judgment indexed in the office of the clerk of the district court against May Alley was against Mary A. Allely.</p>

<p>Equity: Review by Proceeding in Ebror: Motion for New Trial. In order to review the proceedings in the trial of an equity case by a petition in error, a motion for a new trial must be filed, as in an action at law. (Carlow v. Aultman, 28 Neb., 672.)</p>

<p>1. Review: Sufficiency of Assignment of Error: Motion for New Trial. The statutory assignment, in a motion for a new trial, of “ errors of law occurring at the trial and duly excepted to,” is sufficient to present for review the ruling of the court upon a demurrer ore tenus interposed before the introduction of any evidence.</p> <p>a. Contract of Sale: Damages for Breach: Pleading. In an action for damages for refusing to deliver goods in pursuance of a contract of sale, where no consequential damages are claimed, it is not necessary to allege the market value of the goods.</p> <p>3. Assignment of Error. The failure of a jury, in assessing the amount of recovery, to allow interest upon a sum due upon contract is not presented for review by the assignment, in a motion for a new trial, that the verdict is not supported by sufficient evidence.</p>

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

<p>1. Mechanics’ Liens: Priority: Proof. In a suit to foreclose-a mechanic’s lien, where other incumbrancers by answer deny the facts necessary to create the lien, it is necessary for the mechanic’s lienor, in order to establish his lien as prior to such-other incumbrances, to prove such facts, including the time of, commencing labor or of furnishing material.</p> <p>2. Pleading: Mortgage Foreclosure. An objection to the omission in a petition to foreclose a mortgage, of the averment that no proceedings have been had at law for the collection of the debt secured thereby, must be made prior to the rendition of a decree, as it relates to matter in abatement, and not to a fact affecting the validity of the mortgage.</p> <p>3. -. "Whether a petition may at any time be attacked because of the omission of such averméíit, by another incumbrancer seeking to foreclose his lien in the same action, quiere.</p>

<p>1. Instructions should be given clearly, concisely, and without contradictory statements of the rules by which the jury should be governed. If, however, the instructions are not in compliance with this requirement, the verdict will not be set aside, if, upon the evidence, no other verdict could be sustained.</p> <p>2. Principal and Agent: Sale oe Land: Purchase by Agent. An agent is required to disclose to his principal all the information he has touching the subject-matter of the agency; and his relation to his principal forbids his becoming a purchaser thereof for his own benefit in any way without the full knowledge by the principal of this fact, and the principal’s acquiescence therein with such knowledge. The burden of proving such knowledge and acquiescence is upon the agent.</p> <p>3. -: Duties of Agent: Commission. A commission cannot be collected by the agent for his services as such if he has willfully disregarded, in a material respect, an obligation which the law devolves upon him by reason of his agency.</p>

<p>Appeals from the district court of Lancaster county. Heard below before Chapman, J. '</p>

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

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

<p>Breach, of Contract: Measure oe Damages. In a suit for violation of a contract the courts will not, for the measure of tlie damages, apply a rule which would give- plaintiff a greater compensation for a breach of the contract, than- he could receive had it been performed.</p>

<p>1. Action onBond: Trial: Admissibility of Evidence. Plaintiffs in error, as sureties, signed a bond to a manufacturing company that one W. would pay for all goods to be furnished him by the manufacturing company; one Ward brought suit on this bond against the sureties, alleging that on the date thereof the manufacturing company sold a bill of goods to W.; that he had not paid for the same, and that the manufacturing company had assigned the account to Ward. To sustain this allegation at the trial he offered in evidence a note made by W. to the manufacturing company of the same date as the bond, with evidence that the note was given “for goods delivered, or to bedelivered,” by the manufacturing company to W. Held, Irrelevant under the pleadings.</p> <p>2. -: -: -: Pleading: Sureties: Review. The petition against the sureties also contained a second cause of action, claiming damages for expenses Ward had been put to in prosecuting his claim against W. to judgment. Held, Not to state a cause of action against the sureties. On the trial plaintiff was permitted to read in evidence to the jury protest of the note, showing protest charges, and a transcript of a judgment rendered on said note in favor of Ward, showing constable and justice of the peace costs. Held, Error.</p>