Volume 37 — Nebraska Reports

<p>1. Review: Exhibits: Evidence. Exhibits, which the reeoid shows were offered in evidence, will not be presumed to have been withheld from the consideration of the jury, iu support of a contention that the verdict was unsupported by the evidence.</p> <p>2. -: Bill of Exceptions: Omission oe Testimony: MisRECITALS. If the hill of exceptions discloses that without doubt important evidence has been therefrom omitted, the settlement and authentication of the bill of exceptions will not control, though therein the recitations are to the contrary, and in such case the verdict will not he disturbed as contrary to the evidence.</p> <p>3. -: A PARTY ASKING THE COURT TO GIVE AN INSTRUCTION to the jury cannot complain because this request is complied with, even though such instruction incorrectly states an issue to he tried.</p>

<p>Appeal from the district court of Gage county. Heard - elow before Appelget, J.</p>

Controversy involving the validity of the legislative appropriation of 1893 for impeachment proceedings, submitted to the supreme court under the provisions of section 567 of the Civil Code.

<p>1. Master and Servant: Negligence op Foreman: Liability op Master. Where a foreman, having charge of laborers, directs one of them to perform certain work, in such manner and under such circumstances as to subject the said laborer to great danger of injury, the company for whom the said foreman is acting cannot shield itself from liability for damage under such circumstances caused directly to such laborer by the negligent order of such foreman, upon the ground that the only negligence imputable to the foreman consisted in the performance of an act of mere manual labor in setting in motion the agency which caused the injury, and that thereby the foreman, as to such act, was reduced to the grade of a co-servant of the injured party.</p>

<p>1. .Corporations: Purchase of Corporate Property by Officer at Judicial Sale. An officer of a corporation for pecuniary profit, who in good faith purchases at j udicial sale the property of the corporation, will be protected in such purchase, . provided he shows affirmatively that he has, as indicated, paid the full value of the property of which he so became the purchaser.</p> <p>2. -: -: Fraud: Action by Stockholders: Limitation of Actions. A stockholder of a corporation who seeks as such to impress with an express trust the property of such corporation regularly sold at j udicial sale to an officer of such corporation should commence proceedings within a reasonable time after such sale, and must, when such proceedings are unreasonably delayed, establish by a preponderance of the evidence the facts upon which such trust is based.</p> <p>3. -: -: -:--: -. The lapse of four years after the discovery of the alleged frauds, or of such facts as were sufficient to demand such investigation by plaintiff as would have disclosed the alleged frauds, bars an action brought for relief upon the ground Of such fraud.</p> <p>4. Amendment After Trial: Harmless Error. After the submission of an equitable action for final determination, there was no prejudicial error in refusing an amendment of plaintiff’s petition proposed to meet the alleged proofs, where, upon a full consideration of all the evidence upon appeal in this court, it is found that the relief prayed must in any event be denied.</p>

<p>1. Election Contest: Appeal From County Court: Issues in Appellate Court. In an election contest the incumbent, having dismissed before j udgment a paragraph of his answer alleging the improper refusal to count certain ballots, cannot by an original amendment in the district court, over the contestant’s objection, set up the same matters as to which he had entered a dismissal in the county court.</p> <p>Ü. Elections: Marked Ballots. The indorsement of the name “Eagleham,” he not being one of the election judges, upon a ballot, was within the inhibition of the statute forbidding the marking of his ballot by an elector, and vitiates said ballot.</p> <p>3. -: Australian Ballots: Cross Made With Pencil Instead of Ink. While the statute requires that the cross which signifies the preference of the elector shall, in ink, be placed in a space designated for that purpose, a ballot upon which such preference is indicated by a cross made with a lead pencil, outside the space designated, but opposite the name of the choice of the elector, should be counted according to such manifest intention.</p>

<p>Fraudulent Transfer of Property from Husband to Wife: Wipe as Witness. Under tlie provision of section 331 of the Code of Civil Procedure, a wife, over her husband’s objection, cannot be required to testify as to facts which, it is claimed by the adverse party, would show that a transfer of property from her husband to herself was fraudulent. Neither can the husband under like circumstances be compelled to testify as against his wife.</p>

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

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

<p>1. Review: Conflicting Evidence. When the evidence upon which a decree has been entered is conflicting, the finding of the district court will not he disturbed upon appeal if there is sufficient evidence upon which such decree may he fairly based.</p> <p>2. Divorce: Residence. In a proceeding for a divorce the statutes of Nebraska recognize the right of each party to reside in a county different from that in which the other resides; whether or not they so reside, is' a question of fact to be determined upon the evidence.</p> <p>3. -: Condonation : Evidence. A wife may condone the cruelty of her husband, but the husband, to avail himself of such con-donation, must establish the same by clear and satisfactory proofs.</p>

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

<p>-1. Appeal from County Court: Order for Transcript: Neglect of County Judge. A defeated party to an action in the county court, who promptly orders a transcript of the proceedings to be prepared for the purpose of appealing the case, . will not he denied the right of appeal because the county judge fails to prepare the transcript within thirty days after the rendition of judgment.</p> <p>2. -: Delay in Piling Transcript: Objection: Waiver. Where a transcript for the purpose of appealing a case to the district court is filed after the statutory period has elapsed, the appellee by filing pleadings and contesting the case on its merits waives his right to object to the delay, even- though this action he taken after the overruling of a motion by him made challenging the validity of the appeal.</p> <p>3. Sale of Commodity: Implied Warranty. Where one contracts to supply a commodity in which he deals, to he applied to a particular purpose of which he is aware, under such circumstances that the buyer necessarily trusts to the judgment of the vendor, there is an implied warranty that the commodity shall he reasonably fit for the purpose to which it is to he applied.</p> <p>,4. -: -: Breach of Contract: Measure of Damages: Instructions. Where the law provides a definite measure of damages the court should instruct the jury specifically how the damages should he assessed, and an instruction stating a general principle in the admeasurement of damages, broader than is applicable to the particular case presented, and not qualified by other instructions, is erroneous.</p> <p>5. -: -: -: Consequential Damages: Pleading: Instructions. Where only consequential damages are claimed they must he specially pleaded, and in such cases the j ury should he confined by the instructions in assessing the amount of recovery to the consideration of such damages as are so pleaded.</p> <p>6. -: Breach or Warranty: Consequential Damages from breach of warranty in the sale of chattels cannot be recovered where the vendee, by exercising ordinary prudence and judgment, could have avoided the consequences complained of.</p> <p>7. -:-: Consequential Damages: Recovery. A sold lime to B for the purpose of plastering a building, the circumstances j ustifying a finding that A impliedly warranted the lime to be reasonably fit for the purpose intended. The lime was used by B in plastering the building. The work proved defective, and the evidence sustained a finding that the defect was in the quality of the lime. B thereupon papered the side walls and replastered the ceilings with another material. He then brought suit against A to recover the cost of such papering and replastering. Held, That in such case this expense could not be recovered unless it was shown: First, that the defect in the lime could not, by a person accustomed to use such materials, have been discovered before it was used in making plaster and applied to the walls, and, secondly, that the mode of remedying the defect was reasonable and did not exceed in cost that of re-' plastering with the same kind of material of good quality.</p> <p>8. -: Implied Warranty: When Broken. In the sale of a special kind of a known general material for a particular purpose, the circumstances implying a warranty that the material is reasonably fit for the purpose intended, if the special material sold requires a different manner of use or treatment in applying it to the purpose intended than that required in the use- or treatment of the same general material of other kinds, and .this different requirement is known to the vendor and not to the vendee, the warranty is broken if the vendee uses and treats the material as similar material is customarily treated, and if so used it does not prove reasonably fit for the purpose.</p> <p>9. -: -: -; Instructions. An instruction is erroneous which states the foregoing rule but omits the requirement of a warranty in the sale, the fact of such warranty being in issue, and leaves the jury to infer that there may in such case be a recovery in the absence of a warranty.</p> <p>10. --:,Breach oe Warranty: Trial: Evidence: Review. The trial court may, in its discretion, require that offers of evidence objected to be made in such a manner as not to reach the ears of the j ury, and should adopt this course where the offer to be made threatens to prejudice the party objecting if heard by the jury. A verdict will not, however, be disturbed because of the refusal of the trial court to so order, unless it is apparent from the record that there was an abuse of discretion.</p>

• Impeachment proceedings before the supreme court commenced under the provisions of section 14, article 3, of the constitution.

Impeachment proceedings before the supreme court commenced under the provisions of section 14, article 3, of the constitution.

<p>. Impeachment trial before the supreme court under the provisions of section 14, article 3, of the constitution.</p>

Heard below before Wakeley, J. Good-will is a proper subject of sale or bequest. (Green- . wood, Public Policy, p. 729.) The good-will of a business is property and held and treated as independent of either the stock, fixtures or place.

Original action to wind up the affairs of the Commercial & Savings Bank of Kearney, Nebraska, under the banking law of 1889. Henry Gibbons, receiver, filed a petition for an order to require the Mutual Loan & Investment Company and S. 5. St. John to surrender and deliver to him, as receiver of tbe Commercial & Savings Bank of Kearney, certain notes and other things of value obtained by them from John Barnd, cashier, and wrongfully withheld.

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

Error from the district court of Douglas county. Tried below before Doane, J. The cashier of the bank had no authority to buy shares: of stock in the insurance company and pay for the same, with funds of the bank, or to accept the same in payment of a note not due. (Sandy River Bank v. Merchants & Mechanics Bank, 1 Bissell [U. S.], 146; Lamb v. Cecil, 25 W,.

<p>1. Mortgages: Release Without Payment at Request of Mechanics’ Lienholders: Priorities: Estoppel. M. held a mortgage on certain city lots, on which the owner desired to negotiate a large loan for the purpose of building thereon a hotel, contracts for furnishing the material for which were held by H. & C., who promised M. in writing if he would release his mortgage they would pay him the amount thereof out of the payments made to them for material from time to time as the building progressed. M. released. Payments for material were made to H. & 0., hut they paid nothing to M. In a suit by H. & C. to foreclose mechanics’ liens on the lots and hotel, held, that the release by M. of his mortgage was a sufficient consideration for the promises of H. & C.; that they were estopped from claiming liens on the property prior to M., and that their liens should he charged with the amount due M. on his mortgage.</p> <p>2. Mechanics’ Liens: Priorities. Under the law of this state the lien of a mechanic or laborer attaches at the commencement of the furnishing of material,' or at the commencement of the performance of labor by him, and not from the beginning of the construction of the improvement on which he labors or for which he furnishes material.</p> <p>3 -. -. Interest to Which Lien Attaches. A person commencing-to furnish material for, or commencing to labor on, an improvement on real estate must at the time take notice of the interest and title in the premises of the person with whom be contracted, as shown by the public records, as his lien for labor or material, aside from the improvement itself, attaches only to such interest.</p> <p>4. Mortgages: Mechanics’ Liens: Priorities. A party taking a mortgage on real estate is bound, at the time, to know whether material has been furnished or labor performed in the erection, reparation, or removal of improvements on the premises within the four prior months.</p> <p>5. -: -: -. The lien of a mortgage on real estate, taken while a building is in process of erection thereon, is subject to the claims of material-men and laborers for material already and thereafter furnished, and for labor already and thereafter performed in the erection of such building, when the commencement of such furnishing of material, or the commencement of the performance of such labor, was prior to the record of said mortgage.</p> <p>fi. Mechanics’ Liens: Intervening Mortgages: Priorities: • Classification of Liens. Under the Nebraska statute there are no priorities amongst liens for material furnished or labor performed; but this rule of equality applies only to those lienors who commenced the furnishing of material, or commenced the performance of labor on the faith of the same estate; as, if A, B, and C commence the furnishing of material for an improvement on certain real estate, and afterwards the owner mortgages to D, and thereafter E, F, and Gf commence the performance of labor on the improvement; here the liens of A, B, and C are prior to D’s mortgage and prorate amongst themselves, being of the same class and attaching to the same estate; while the liens of E, F, and Gr would he subject to D’s mortgage but would prorate amongst themselves, being of the same class and attaching to the same estate.</p> <p>7. -: Proceedings to Perfect: Affidavit. The oath attached to the “ account of the items ” for material furnished and for which a lien was claimed, was as follows: “ J. A. B., being first duly sworn, * * * says, * * * is a * * * correct * * * of material furnished by this affiant. * * , * Signed, Capital City Planing Mills, per J. A. B., Sec’y.” The account of the items was headed, “M. I. B., To Capital City Planing Mills, Dr.” Held, To show that the lien was claimed by the Capital City Planing Mills and not by J. A. B., and a substantial compliance with the statute. „</p> <p>8. -: -: -. The oath required by section 3, chapter 54, Compiled Statutes, may be made by the agent of the claimant of a lien, whether a person or corporation.</p> <p>9. -: -: Limitation: Evidence. When more than four months intervene between items of an account for material furnished a mechanic’s lien will not attach for the items preceding the hiatus, unless it is made to appear by competent evidence that all the items were furnished pursuant to one contract; and the affidavit attached to the “account of the items” is not competent evidence to prove that fact.</p> <p>10. -: Material-Man’s Right to Lien: Conditions of Sale Contract: Waiver. A vendor of an elevator, furnished for and put up in a hotel in process of erection, by contract with the owner retained in himself the title until the fixture should he paid for, and reserved the right to retake possession thereof if default should be made in the payment for the same. Held, Not a waiver of the vendor’s right to a material-man’s lien on the hotel and the land occupied by it.</p> <p>11. -: Assignment: Taking Mortgage Security: Merger. The assignee of a mechanic’s lien is subrogated to all the rights of his assignor; and the taking of a mortgage by the assignee on the property affected by the lien, the consideration of which mortgage was used in the purchase of the lien, will not merge the latter in the mortgage, unless it appears such was the intention of the parties and justice requires it. That intention-may be established not only from the acts and declarations of the assignee but from a view of the situation as affecting his interests.</p> <p>12. Indemnity Bond: Principal and Surety: Rights of Surety: Unauthorized Delivery: Ratification. The agent of the obligeo in an indemnity bond against mechanics’ liens presented the obligation to H. and D. and requested them to sign it as sureties ; promising them that A.,S., and one Hughes, whose names were printed in the body of the bond as sui'eties, would also sign it. H. and D. signed on the agreement with the agent that if the others named as sureties did not sign, the bond should be “invalid.” None of the others named as sureties signed, and the agent, without the knowledge of H. or D., erased the other sureties’ names by drawing an ink line across them and delivered the bond in this condition to her principal. Held, The delivery of the bond was unauthorized and H. and D. were not liable thereon; and held farther, that H. and D.’, by afterwards taking security to protect themselves from loss (being then ignorant of the fact that the other sureties had not signed), did not thereby ratify the delivery of the bond, as the knowledge of the existence of a right or defense and the intention to relinquish it must concur in order to estop a party by waiver.</p>

<p>Appropriations for Current Expenses of State: Aor Construed. The title of house roll No. 207, passed and approved April 10,1893, is as follows: “An act making appropriation for the current expenses of the state government for the years ending March 31,1894, and March 31,1895, and to pay miscellaneous items of indebtedness owing by the state of Nebraska. ” Section 1 of said act provided: “That the following sums of money, or so much thereof as may be necessary, are hereby appropriated out of any money in the treasury not otherwise appropriated, for the payment of the current expenses of the state government ' for the years ending March 31, 1894, and March 31, 1895, and to pay miscellaneous items of indebtedness owing by the state of Nebraska. * * ■* Miscellaneous: * * * Arrest and return of fugitives from justice, rewards offered, officers’ fees and mileage for conveying prisoners to and from the peniten- ■ tiary, and juvenile offenders to the industrial schools at Kearney , and Geneva, $20,000.” Held, That no part of this sum was ap-propriated for the payment of indebtedness owing by the state for “ arrest and return of fugitives or for officers’ fees and mileage for conveying prisoners to and from the penitentiary,” unless such indebtedness was incurred after March 31, 1893.</p>

<p>1. Promissory Motes: Principal and Surety: Release of Surety. The extension of time of payment of a note to the principal, by the payee, upon sufficient consideration, without the knowledge of the surety, releases the surety; and evidence clearly directed to proof of such facts properly pleaded is competent.</p> <p>2. Trial: Admissibility of Evidence:-Motion to Strike Out: Review. Where the admissibility of evidence is for the first time called in question by a motion to strike it out of the record, it is very questionable whether, under any circumstances, a review can be had of the ruling of the district court upon such motion.</p> <p>3. Be view: Weight' of Evidence. A verdict will not be dis- . . turbed because unsupported by the evidence, unless it is clearly so.</p>

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

<p>1. Forcible Entry and Detainer: Wrongful Entry Under Claim of Title. An action for the forcible detention of real property may be maintained by one whose complete possession thereof has been ended by the wrongful entry of another, even though such entry was made under claim of a paramount title.</p> <p>2. -: -. A person who claims the paramount title to real property in the undisputed possession of another cannot, by surreptitiously obtaining possession thereof, place such former possessor at any disadvantage as to the assertion of his rights or the enforcement of his remedies in respect thereto.</p>

<p>Establishment of Streets: Acquiescence of Property Owners: Estoppel: Representations. The owners of a tract of land, having platted it as an addition to an adjacent town, so as to show what appeared to be the prolongation of its streets, though not so designated, and having for the period of eight years acquiesced in the grading and public use of such apparent streets, the erection of sidewalks thereon, and the construction of costly improvements upon adjacent private property in such manner that if the existence of such streets is denied these improvements will be rendered comparatively useless; and having represented to one party, who, on the faith thereof, pur•chased a portion of said addition adjoining said apparent streets that such portion would abut upon the same as streets, are es-topped to deny the existence of the streets through such addition of which they have thus superinduced such belief, and the reliance thereon of the parties who have acted upon the faith of such appearances, acts, and representations.</p>

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

<p>1., Mechanics’ Liens: Vendor Contracting for Improvement: Priorities. The vendor in an executory contract for the sale of land will subject his rights in the property to be conveyed to a mechanic’s lien by directly, though in conjunction with the vendee, contracting for those improvements for the construction of which such mechanic’s lien is sought to be enforced.</p> <p>2. -: -: -. If a vendee in possession of real 'property by virtue of an executory contract for the purchase of the same, erects improvements thereon, the rights of the vendor in said property are not thereby, of necessity, postponed to the lien of the mechanic or malerial-man under the mechanics’ lien law. Such postponement can only be predicated upon a contract of the mechanic or material-man with the vendor directly, or through his agent, and such essential contract must be proved as, must any other necessary proposition of fact.</p>

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

<p>Statute of Frauds: Parol Contract for Payment of Money on Resale of Land. A parol contract between a plaintiff and defendant provided: That the plaintiff should enter his voluntary appearance to a suit then pending, to foreclose a mortgage on real estate owned by him and waive the nine months’ stay of sale of the premises allowed him by law; in consideration of "which, defendant should bid in said premises at the sale under the foreclosure proceedings at the amount of the decree, interest, and costs, resell the same at private sale, and pay to plaintiff the amount realized in excess of the bid. Held, A valid contract and not within the statute of frauds, sec. 3, ch. 32, Comp. Stats.</p>

<p>1. Constitutional Law: Indians: Naturalization. The act of congress approved February 8,1887, entitled “An act to provide for the allotment of lands in severalty to Indians on the various reservations and to extend the protection of the laws of the United States and the.territories over the Indians, and for ■ other purposes,” is not in conflict with article 1, sectioii 8, of the constitution of the United States, which provides .that congress shall have power “to establish an-uniform rule of naturalization.”</p> <p>3. Indians: Allotments of Land Under Federal Law: Citizenship. By the provisions of said act all Indians born within the territorial limits of the United States to whom allotments of land in severalty have been made under the provisions of said law, or other law or treaty, and all Indians, born as aforesaid, who have voluntarily taken up their residence in the United States separate and apart from any tribe of Indians therein, and adopted the habits of civilized life, are made citizens of the United States, and such Indians residing in this state are citizens thereof.</p> <p>3. -: -: -. The actual issuance or receipt by an Indian of a patent for lands allotted to him under the act is not necessary to constitute him a citizen of the United States., When he has accepted the land allotted, taken possession thereof and otherwise complied with the law, he becomes entitled to his patent and his citizenship attaches. . ■ ’' '</p> <p>4..Elections: Australian Ballot Law: Nominations: Regularity of Certificate. An objection that the “ convention, ” “primary meeting,” “committee,” or “electors” nominating a candidate for a public office had not the legal authority to make such nomination, must be made before the election and in the manner provided by section 136, chapter 26, of the Compiled Statutes ; and if not so made, the legal authority of such “ convention,” etc., to make such nomination — the certificate thereof being in an apparent conformity with the provisions of the election law — will, in the absence of fraud, be conclusively presumed.</p> <p>5. : Objections to Form of Official Ballot. By the provisions of section 141, chapter 26, of the Compiled Statutes a candidate may make objections to the ballots as printed by the county clerk, and invoke the power; of? the courts to correct any error or omission in the name or description of his competitor; but if such candidate neglects to make such objection until after the election, he cannot then object to the result because of any error in the political designation of his-competitor on said ballots, without a showing of fraud and that the error by deceiving the electors prevented a full and fair expression of the voters’ will.</p> <p>6. --:-: Statutory Construction. Such a construction of an election law as would result in the disfranchisement of large bodies of voters because of an error of some public officer should not be adopted where the language of the statute is susceptible of any other.</p> <p>7. -: -: - — . Innocent irregularities of election officers which are free of fraud and have not prevented a free and 1 ... fair expression of the popular choice will not vitiate the result of an election unless the legislature has expressly so declared-</p>

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

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

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

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

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

Error from the district court of Lancaster county. Tried below before Strode, J. When an act is valid in part and invalid in part, and it appears that the invalid part was the inducement for the enactment of the valid part, the whole enactment must be treated as void.

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

<p>1. Adverse Possession. Where land is especially adapted to the purposes of grazing and hay growing, and one claiming ownership thereto has every year for a period of more than ten years cut the grass, and harvested and disposed of the hay from such portions of the land as its character permitted, so using the land in connection with, and in the same manner as he used other tracts owned or claimed by him and adjacent thereto, there being at different periods fences or plowed strips not entirely enclosing the whole, but of such a character as to indicate a connection between the tracts, and where the person so using the land paid all the taxes thereon, and at intervals warned off trespassers and distrained cattle thereon found grazing, held, that such acts constituted actual, continuous, notorious, and adverse. possession for the statutory period.</p> <p>2. -: Color of Title: Statute of Limitations. A tax deed purporting on its face to convey title to land, although void for failure to comply with the statute, affords color of title under the general statute of limitations.</p> <p>3. -: Claim by Non-Resident: Possession by Agent. One may plead adverse possession and is entitled to the benefit of the statute relating thereto, although he was a non-resident and absent from the state during a portion or all of the period covered by his possession.</p> <p>4. --:-: The Possession of One’s Agents is, for the purpose of the statute of limitations, ihe possession of the principal.</p>

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

<p>Intoxicating Liquors: License to Sell: Mandamus to Revoke : Village Board. A board upon which is imposed the duty of hearing and determining applications for licenses to sell liquors will be compelled by mandamus to convene and revoke a license granted, where the essential proceedings requisite to the granting of a lawful license have not been complied with.</p>

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

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

<p>Original proceeding in nature of quo warranto.</p>

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

Error from the district court of Box Butte county. Tried below before Kinkaid, J. An appeal undertaking is filed in time when it is delivered to the county judge at 9:30 P. M. of the tenth day after judgment. {Dale v. Doddridge, 9 Neb., 143; McGavock v. Pollack, 13 Id., 537; Helphenstine v. Vincennes National Bank, 65 Ind., 589.) A paper is said to be filed when it is delivered to the proper officer and by him received to be kept on file. '{Sutton v. McCoy, Wright [O.], 95;…

<p>Attachment: Motion to Quash: Amendment of Affidavit. An affidavit for the issuance of an attachment may be amended by leave of the court, even after a motion to quash the proceedings is filed, because of that particular defect.</p>

<p>Equity: Contracts: Fraud: Rescission. Held, That as between the plaintiff and Peycke the proof failed to show fraud, and that as the plaintiff had refused the offer to redeem the cheese company’s stock by paying the amount for which it was taken as security with interest thereon, the judgment would be affirmed.</p>

<p>1. Judgments: Revivor: Limitations: Jurisdiction. Seld, That the court had jurisdiction of the subject-matters and the parties served.</p> <p>2. -: -: Proof. That the proof fully sustained the order of the court reviving the judgment.</p> <p>3. -: -: Limitations. The limitation of one year in which to revive an action on motion does not apply to a proceeding to revive a judgment.</p> <p>4. -: -: Action by Administrator: Parties. Seld, That the action was properly brought in the name of the administrator.</p>

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

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

<p>Ejectment: Boundabies: Establishment op Lost Coenees. The question involved was the location of a government corner when the original corner had been tampered with, and there were three points alleged to be the true corner. There being no one to identify positively any point as the correct corner established by the government, held, that surveys from known government corners both north and south and east and west of the comer in dispute, by which it was located on a line with other corners on both of said lines, and each land-owner would thereby be given the full amount of land called for by his patent, would be preferred to a survey which was not begun at a known government corner and lacked many of the elements of certainty, and which gave one of the land-owners much more than he was entitled to under his patent, and the other less.</p> <p> </p>

<p>Attachment: Property in Hands op Garnishee: Subsequent Levy and Sale: Liability op Officer. In an action by attachment a garnishee was ordered to hold sufficient property of the debtor to satisfy the debt, which he failed to do. After the garnishment another creditor levied an attachment on a part of the property in the garnishee’s hands, and upon satisfaction of the garnishee’s claim sold the remainder under the second attachment, neither the officer nor his attorney having notice of the garnishment. Seld, That under the testimony the officer under the second attachment was not liable to the attaching creditor under the first attachment for the amount of his claim.</p>

Error from the district court of Valley county. Tried below before Harrison, J. When the court gives a prejudicial instruction on a proposition not before the jury, the judgment in such a ease should be reversed. (Holmes v. Boydston, 1 Neb., 358; Bunbier v. Bay, 12 Id., G04; Newton Wagon Co. v. Biers, 10 Id., 292; Turner v. O’Brien, 11 Id., 108; Steele v. Russell, 5 Id., 216; Smith v. Evans, 13 Id., 316.)

<p>Replevin: Evidence: Review. In an action of replevin the proof failed to show any right of the defendant to the possession of the goods. The judgment was therefore set aside and a' new trial granted.</p>

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

<p>Questions submitted to the supreme court by the board of public lauds and buildings.</p>

Error from the district court of Howard county. Tried below before Harrison, J. The facts are stated in the opinion. The court erred in sustaining the challenge for cause made by plaintiff below to the juryman Salter. He was examined by counsel and the court. The evidence disclosed no circumstance from which a suspicion of bias in. the mind of the juror for or against either party could arise.

<p>1. Criminal Law: Costs. Where a person is convicted of a criminal offense it is the duty of the court in which the conviction was had to render j udgment against the prisoner for the costs of prosecution, and the court may make it a part of the sentence that the party be imprisoned in jail until the costs are paid, or secured to be paid, or he is otherwise legally discharged. (Criminal Code, secs. 509, 501.)</p> <p>2. -: -: Imprisonment eor Non-Payment. A defendant in a criminal case confined in jail for the non-payment of the costs assessed against him, and who is unable to pay the same, is not entitled to be discharged from further imprisonment for such costs, under see. 528 of the Criminal Code, where it appears he has not been imprisoned at least one day for each three dollars of the costs.</p>

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

<p>1. Criminal Law: Conviction op Several Offenses: Separate Sentence. Where a person has been convicted at the same term of court of several distinct offenses, each punishable by imprisonment in the penitentiary, whether charged in separate informations or in separate counts of the same information, the court may impose a separate sentence for each offense of . , which the prisoner has been found guilty.</p> <p>2. -: -: -. In such case the judgment should not , fix the day on which each successive term of imprisonment j should begin, but should simply direct that each successive term should commence at the expiration of the one imposed by the previous sentence.</p> <p>3. -: Separate Sentence. If the same offense is charged in different counts of an information, and there is a conviction on each count, but a single sentence should be pronounced upon all the counts for the one entire offense.</p> <p>4. -: Forgery: INFORMATlbN. . An information which charges the forgery of an instrument and the fraudulently uttering of the same instrument by the same person charges but one crime, and in case of conviction but one penalty can be inflicted.</p> <p>■5. -: Separate Sentence: Habeas Corpus. To an information containing two counts, one. charging the petitioner with the forgery of a certain bank check, and the other with the uttering of the same instrument, a general plea of guilty was entered. Thereupon the court sentenced him upon the first count to imprisonment in the penitentiary for the period of one year from the 9th day of May, 1892, and upon the other count a like imprisonment was imposed for the term of one year from May 9, 1893. By good conduct the petitioner saved two months of his first sentence, and having served out the term under such sentence, he applied for his release on habeas corpus. Held, That the second sentence was illegal and void, and that he was entitled to be discharged from further imprisonment.</p>

Motion in supreme court by defendant in error to allow a reasonable attorney’s fee, under the valued policy act of 1889.

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

<p>Fire Insurance: Conditions of Policy: Premium Note: Payment: Forfeiture: Waiver. A policy of insurance provided that upon the failure of the insured to pay the premium note therein described in fall at maturity, such policy should cease to be in force and continue null and void while said note remained unpaid. Said note not having been paid at maturity-the insurance company accepted as a credit thereon an amount of money largely in excess of the premium earned, and left the note with its local agent for collection. Subsequently, and before the premium so paid had been earned and before the note had been paid in full, the property insured was destroyed by fire. Held, That the policy was voidable only at the election of the insurance company, and that by receiving and retaining the part payment after default and retaining the note for collection, it waived the right to insist upon a forfeiture thereof.</p>

<p>1. Liquors: License: Appeal from Tillage Board: Stay of Proceedings. An appeal by a remonstrant from an . order of a village board under the provisions of section 4, cbap. 50, Comp. Stats., in order to have the effect of a stay and prevent the issuing of license to. the applicant, must be taken immediately and perfected as soon as a transcript can with reasonable diligence be procured and filed in the district court. Lydiek v. Korner, 13 Neb., 10.</p> <p>2. -:-: -: -: Mandamus. License was allowed on the 9th day of May. The remonstrant immediately gave notice of an appeal, knowing that the district court for the county would convene pursuant to adjournment on the 18th day of the same month, and that the next session thereof would be in September following. A transcript was demanded for the first time on the 19th, after the final adjournment of the district court, and filed on the 20th. It appears that a transcript could with reasonable diligence have been procured and filed within twenty-four hours from the time the license was allowed. Held, That the appeal was not taken in time to have the effect of a . stay, and a peremptory mandamus should not be allowed to compel the village board to revoke and cancel a license issued on the 18th after the final adjournment of the district court.</p>

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

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

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

<p>1. Negotiable Instruments: Checks: Presentment: Reasonable Time: Release of Indorsee. On Saturday, the 31st day of May, 1890, about the close of banking hours, oneM. indorsed in blank and deposited to his credit in a bank in Wymore, Nebraska, certain cheeks drawn to his order by one B. on a bank in Cortland, Nebraska. Wymore and Cortland are twenty-seven miles distant from one another, but connected by telegraph, telephone, and railroad lines, and a mail left Wymore at 6 P. M. daily, arriving at Cortland at 9 P. M. the same day. The Wymore bank made no inquiry of the Cortland bank as to whether the checks were good, nor did it at any time advise the Cortland bank that it held the checks, but on the day of their receipt, mailed said checks to a bank in St. Joseph, Missouri, which bank sent them by mail to a bank in Omaha, Nebraska, and this latter bank sent them by mail to the bank in Cortland, at which they arrived on June 5, and were then protested for non-payment. Seld, That the Wymore bank did not present the checks for payment to the Cortland bank in a reasonable time, and that the indorser, Miller, was thereby discharged.</p> <p>2..-: -: -: Diligence. An ordinary check is not designed for circulation, bub for immediate presentment, and to charge an indorser must be presented with all due dispatch and diligence consistent with the transaction of other commercial business.</p> <p>3. -: -: -: -. Greater diligence is required in presenting ordinary eheeks for payment than in presenting bills of exchange. Whether an ordinary check has been presented • for payment by the indorsee thereof in such a reasonable time as to hold the indorser must be determined from the facts and circumstances of each particular case.</p> <p>4. Banks and Banking: Custom and Usage: Checks. No custom or usage among bankers as to the manner of presenting ordinary checks for payment will relieve them from the legal duty of presenting such checks for payment within a reasonable time.</p> <p>5. Checks: Indorsers: Presentment: Damages: Evidence. In a suit by an indorsee against the indorser of an ordinary check, where the defense is that the check was not presented for payment within a reasonable time, inquiry as to whether the indorser was damaged by reason of the failure to present the check for payment is immaterial.</p>

<p>1. Legislative Appropriations: Claims Against State: Approval: Duties oe State Oeeicees. Under the provisions of section 9, article 9, of the constitution, all claims upon the state treasury are to he examined and adjusted by the auditor and approved by the secretary of state before any warrant for the same shall be drawn. This applies to all appropriations, specific as well as general.</p> <p>2. -: -: Commissioner General: Vouchers. The original vouchers approved by the commissioner general are to be presented to the auditor so that he may see that the claim is one for which an appropriation has been made.</p>

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

<p>1. Review: Non-joinder of Parties: Evidence examined, and held to sustain the verdict.</p> <p>2. Trial: Officer in Charge of Jury: Review. It is not reversible error to permit a jury to remain in charge of a deputy sheriff while deliberating upon their verdict without his being specially sworn by the court in that behalf.</p>

<p>1. Courts of Equity: Jurisdiction. Where courts of equity have assumed jurisdiction of a particular class of cases their jurisdiction in such eases will continue notwithstanding, in the development of legal means, redress becomes attainable in courts of law.</p> <p>2. -: Remedies Not Within Provisions oe Code. It is not the object of the Code to abolish existing remedies in cases ■where no provision is made therein for the prosecution of actions. Cases involving substantial rights, which are clearly outside the provision of the Code, may be prosecuted in accordance with the practice previously recognized in courts of common law and equity.</p> <p>3. -: -: Decree of Divorce: Action to Vacate fob Fraud: Pleading. In the petition it is alleged that the defendant therein, plaintiff’s husband, in the year 1878, procured a decree of divorce in this state by means of fraud and perjured testimony. At said time and until recently the plaintiff resided in the state of Pennsylvania; that the only service upon her was by publication in a local newspaper and that she was not aware of the whereabouts of her husband or of said action or decree until the time of the filing of her petition eleven years later. Held, To state a cause of action, since the remedy by petition for a new trial under the Code is inadequate, and that the court which allowed the decree may, in the exercise of its general equity powers, vacate it upon proper showing of fraud and imposition.</p> <p>4. -: Decree Obtained by Fraud: Validity: Collateral Attack. A judgment or decree procured by fraud is not void in the sense that it can be assailed in a strictly collateral proceeding, but is voidable merely at the election of the party defrauded thereby.</p> <p>4. -: -: Action to Vacate Divorce: Jurisdiction of Court in Different County. One S. procured a divorce from his wife by decree of the district court of Fillmore county in 1878 upon constructive service. In 1889 the latter commenced an action in the district court of Douglas county to set aside and annul the said decree, on the ground that it was procured by means of perjury, and for a divorce on the ground of desertion and failure to support. Held, That the cause of action is primarily to vacate the decree of the district court of Fillmore county, and that the district court of Douglas county does not have jurisdiction thereof.</p>

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

Error from the district court of Jefferson county. Tried below before Morris, J. Under the contract, or ordinance, the defendant receives three thousand dollars per annum, which amount is levied as a special tax and paid by the taxpayers of the city of Eairbury, of which plaintiff is one, as alleged in his petition.

<p>Conversion: Damages: Evidence. Where the action is for the value of property alleged to be wrongfully detained by the defendant, and for damages for such wrongful detention, it is reversible error for the plaintiff, over proper objections, to testify as a conclusion the amount of damages she has sustained independently of the value of such property. Ragan, C., dissents.</p>

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

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

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

Heard below before Hall, J. Where the evidence shows that an absolute deed is given and intended as security, it should be considered a mortgage, and the right of redemption cannot be limited in time or to a particular person. (Wright v. Mahaffe, 40 N. W. Rep. [Ia.], 112; Scudder -v. Trenton Delaware Falls Co., 23 Am.

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

Heard below before Broady, J. The mistake made by the board of supervisors in substituting the word “township” in the call and notice of election for the words “county of Gage” contained in the petition of the freeholders, was an immaterial clerical error, which could have had no effect upon the result of the election, and could not, consequently, effect its validity. Ch. 45, sec. 14, Comp.

<p>Appeal: Trial De Novo: Findings: Evidence: The Supreme Court, though trying a case de novo on appeal, will not disturb the finding of the district court unless the finding and decree cannot be reconciled with any reasonable construction of the tes* timony.</p>

<p>1. Fraudulent Conveyances: Evidence. Direct proof of fraud can seldom be obtained, nor is such evidence absolutely essential to establish the fraudulent purpose of the parties to a pretended transfer of property; but such fraudulent purpose may be shown by the conduct of the parties, the details of the transaction, and all the surrounding circumstances.</p> <p>2. -: -. The evidence in the present case examined, and held to be sufficient to sustain a finding that an alleged transfer of a stock of goods was made for the purpose of hindering, delaying, and defrauding creditors,</p> <p>3. Sufficiency of Evidence to Sustain Verdict: Review. When a jury has decided a question of fact properly submitted, and the trial judge has overruled a motion for a new trial, then, if the record discloses competent evidence on which the finding may have been based, such finding cannot be disturbed by the supreme court.</p> <p>4. Fraudulent Conveyances: Conversion: Action Against Sheriff: Justification: Evidence. Where a suit in attachment was brought against a vendor of a stock of goods on the ground that the sale was fraudulently made to defeat creditors, a sheriff seized the goods, j udgment was rendered sustaining the attachment, and ordering the goods sold. Held, That the record of said attachment proceedings, the same being in force, was competent evidence on behalf of the sheriff in a suit brought against him for the unlawful conversion of said stock of goods, in which suit he pleaded justification under said attachment proceedings, and that the sale to plaintiffs with their knowledge was fraudulently made to defeat the creditors of their vendors.</p>

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

<p>■¡Negotiable Instruments: Installments Dub on Different Dates: Option of Holder to Declare Debt to be Due on Default: Notice to Maker. _ A promissory note payable in installments, tbe consideration of which was the procuring of a loan for the maker by the payees, contained a provision that if default should be made in the payment of any installment when due, the whole note should become due at the option of the holder. Held, First, that the failure to pay any installment rendered the whole note due at the election of the holder; Second, that in the absence of a showing of fraud, want of consideration, or illegality in the contract, a court of equity would enforce the contract as made by the parties; Third, that the , holder was under no legal obligation to notify the maker that by reason of the default he had elected to declare the whole note due; Fourth, that the court would not, on motion of a stranger, in default of an appearance by the maker and a plea of usury by him, add the amount of the commission note to the interest on the loan for five years in order to taint the transaction with usury.</p>

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

<p>Bastardy: Death oe Child: Abatement oe Action. The prosecution of the father of a bastard child, under chapter 37, Compiled Statutes, does not abate by the death of the child pending the prosecution.</p>

<p>Usury: National Banks: Action to Recover Penalty: Ju-; risdtction.of State Courts. The courts of this state have, jurisdiction in actions brought to recover the penalty provided by the acts of congress for the charging and taking by national banks, fox the loan of money, a greater rate of interest than allowed by the laws of the state of their domicile.</p>

<p>1. Review: Proceedings in Error: New Trial. The supreme court will not review alleged errors of law occurring in a trial to the district court unless a motion for a new trial is made there and a ruling had on such motion.</p> <p>2. Appeal: Time por Filing Transcript: Jurisdiction. The supreme court is without jurisdiction to try a case on appeal where the transcript therefor is not filed here within six months after the rendition of the judgment sought to he appealed from.</p>

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

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

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

<p>1. Attachment: Garnishment: Aeeidavit. In order to found proceedings in garnishment in aid of an attachment, it is necessary that the affidavit required hy law he filed in the court issuing the process before notice is served upon the garnishee.</p> <p>2. -: -: Jurisdiction: Special Appearance. In order that proceedings in garnishment may be pleaded against third parties, it must affirmatively appear from the record that the steps were taken necessary to confer j urisdietion, and a voluntary' appearance and answer hy the garnishee does not supply the place of such jurisdictional proceedings.</p> <p>3. -,-: -: Priorities. Under section 946 of the Code, where several attachments are levied upon the same property, or the same persons are made garnishees in several cases, the justice issuing the order first served may, upon motion of any of the plaintiffs, determine the amounts and priorities of the several attachments; and he has authority to do this as well when the validity of some of the attachments or garnishments is disputed as when their validity is unquestioned.</p> <p>4.'-- — : A Determination oe Priorities so had constitutes an adjudication which cannot he collaterally attacked.</p> <p>■5. County Courts: Power to Vacate Judgments. The county court, acting within its special jurisdiction, has power to vacate judgments and final orders during the term at which they were-rendered.</p> <p>6. -: -. In cases within the jurisdiction of a justice of the peace a county judge possesses only the powers of a justice, and can only vacate judgments and final orders in cases where justices are expressly authorized so to do.</p> <p>7. -: -. A county court acting within its special jurisdiction may vacate its judgments or final orders for irregularity in obtaining the same upon proceedings had in pursuance of sections 602 to 610, inclusive, of the Code.</p> <p>8. -: -: Validity of Order: Collateral Attack. An order vacating such judgment or final order is not void for want of a finding that the applicant had a valid defense or cause of action. The want of such finding renders the proceedings, at ■ most, only irregular or erroneous, and they are not on that account open to collateral attack.</p>

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

<p>1. Trover and Conversion: Pleading. A petition in an action in the nature of trover averred ownership generally of certain chattels in the plaintiff. The defendant denied plaintiff’s ownership and alleged ownership in one B. F. S., and a seizure by defendant under proceedings against B. F. S. Held, That the title to the chattels was properly put in issue by these pleadings, and that plaintiff’s case was sustained by proof of ownership in Mrs. S., and a chattel mortgage made by Mrs. S. to the plaintiff.</p> <p>2. Voluntary Assignments: Preferred Creditors. The assignment law, Compiled Statutes, chapter 6, does not deprive insolvent debtors of their common law right to prefer creditors. The law merely prohibits preferences (with certain exceptions named in the act) when made in the assignment itself and preferences made within thirty days before an assignment actually executed, with notice upon the part of the creditor preferred that the debtor was then insolvent or contemplating insolvency.</p>

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

<p>1. Constitutional Law: Statutes: Supreme Court Commissioners. Under the act approved March 9, 1893, authorizing the supreme court to appoint three supreme court commissioners to assist in disposing of the business of the supreme court, three commissioners were appointed who duly took the oath required by law, and prepared certain opinions in cases pending in the supreme court. The syllabus of each case was examined by the court and approved by it, and the opinion then filed under the general rule of court that when so filed it should stand as the judgment of the court. Held, Notin conflict with the constitution of the state.</p> <p>2. Supreme Court Commissioners: Duties. The commissioners themselves file no opinions. It is their duty to examine records, hear arguments, consider the authorities bearing upon the questions involved, and write opinions conforming to their views. In all these respects they- are to act independently of the court, but their opinions have no force or effect until the syllabus of each case is approved by the court and filed by it.</p> <p>3. -: Motions eor Rehearing. Motions for rehearing may be filed as in cases where the opinions have been prepared by the court, and such motions will be considered by the court. If there is probable error a rehearing will be granted.</p>

Error from the district court of Gage county. . Tried below before Appelget, J. The instructions should be applicable to the evidence introduced on the trial. It is error to disregard this rule. (Oity of Lincoln v. Holmes, 20 Neb., 47; Stough v. Stefani,. 19 Id., 468; Ballard v. State, Id., 619; Meredith, v. Kennard, 1 Id., 319; Neihardt v. Kilmer, 12 Id., 38; Republican V. R. Co. v. Finh, 18 Id., 92.) Instructions should be in writing. (Ch. 19, secs. 52, 56, Comp.

<p>1. TrialInstruct ions: Requests: Objections: Waiver. -It is ■ .the duty of,the court on its own motion to state the issues as presented by the pleadings to the jury. If, however, it fails to 'dó só, a request to that effect must he made, and upon the failure, an exception taken. If no exceptions are taken and the objec- ; ff tion not assigned in' the motion for a new. trial, it will be deemed • waived. • .. ," ’ . ’ t</p> <p>%• Instructions held to state the law- correctly. • ■</p> <p>3. The evidence, being conflicting, was fairly submitted to’ thfe . jury- • . :</p>

<p>1. Partnership: Firm Property: Sale by Individual: Mortgage by One Partner to Secure Firm: Debt: Conversion. Where there is no sufficient reason for making a sale of the whole of the partnership property, one partner, without consultation with, or consent of, his copartner, cannot sell the firm property. If, however, the firm is insolvent, one partner in the firm name may in a proper case give security on a stock of goods to secure a bona fide debt of the firm.</p> <p>Ü. Instructions as to duress held, to state the law correctly.</p>

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

<p>1. Ruling on. Motion for Hew Trial: Pinal Order. An order denying a motion for a new trial is not final in such a sense as to constitute a final judgment, nor is a mere judgment for costs. ' ■</p> <p>2. Review Before Entry of Final Judgment: Error Proceedings: Dismissal. The rulings of the district court cannot be reviewed in this court before final judgment has been entered upon the merits of the case in the court below.</p>

<p>Appeal from tbe district court of Perkins county.' Heard below before Church, J. /</p>

<p>1. Liquors: Application for License: Remonstrance: Village Board: Jurisdiction: Order for Hearing. Doe-notice having been published for the full time fixed by the statute, precedent to the hearing of an application for a license to sell liquors, the village board, before which such application is pending, has jurisdiction of the subject-matter, and in case a remonstrance has been filed within the statutory time, should fix' an hour of some subsequent day for hearing the application and remonstrance.</p> <p>2. -:-:-:-: Time of Hearing by Consent.' After a village board has jurisdiction of the subject-matter of an application to sell liquors, and the time has fully expired for filing a remonstrance, and one has been filed, the petitioners and remonstrators may consent to a hearing at as early time as they choose, and in such case cannot be heard to allege that suck hearing was premature.</p> <p>3. —-: -: Hearing'Before Village Board: Judicial Acts: Review. In considering whether or not a license to sell liquor should be granted, a village hoard acts in a judicial capacity, and its refusal to hear competent testimony relevant to objections made in remonstrance against the granting of such license, presents a sufficient reason for the reversal of an order granting a license.</p>

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

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

<p>'Summons: Time or Service: Forcible Detainer: Jurisdiction oe County Court. A summons in an action of forcible detainer, issued and served three days prior to.the day appointed for trial, including the day of service, is sufficient to confer jurisdiction over the person of the defendant.</p>

Error from the district court of Otoe county. Tried below before Chapman, J. The facts are stated in the opinion. The judgment of the justice of the peace in the forcible entry and detainer proceeding was conclusive between the parties thereto, and until reversed was final.

<p>Error from the district court of Franklin county Tried below before Mor,ris, J.</p>

<p>1. County Boards: Examination of Claims: Judicial Acts: Judgments. The county hoard, in the examination of claims against the county, acts judicially, and its judgments or orders in such cases are conclusive unless reversed or set aside on appeal.</p> <p>2. Judicial Acts: Officers: Mandamus will not lie to compel officers exercisingjudicial functions to makea particular decision, or to set aside or vacate a decision already made.</p>

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

Appeal, from the district court of Buffalo county. Heard below before Hamer, J. The facts are stated in the opinion. The false and fraudulent representations made by the officers and agents of the defendant company as to the character of the road for which the bonds were sought to be voted were made for the purpose of deceiving the electors, thereby inducing them to vote in favor of the bond proposition. Equity will lend its aid to relieve the people under such circumstances.

<p>1. Trial: Review: Evidence: The Instructions of the court should direct the attention of the jury only to facts in support of which evidence has been introduced upon the trial. When an instruction is not founded upon the evidence, and is calculated to mislead the j ury in considering the facts of the case, the judgment must be reversed.</p> <p>2. negligence: Explosives: Personal Injuries: Evidence: Instructions. To sustain a verdict for damages on account of an injury suffered by reason of alleged negligence of the defendants, there must be evidence that such injury resulted from the negligence charged. Such causation cannot be left to the mere conjecture of the jury.</p>

<p>1. Trial: Change of Venue: Misconduct of Jury: Review. Where only questions of fact are involved, as respects either the ruling of the trial court upon motions supported and resisted by affidavits, or upon the sufficiency of the evidence to sustain the verdict, such rulings will not be disturbed unless clearly wrong.</p> <p>2. An Instruction requested, which directed a verdict for either party upon an issue of fact which ignored the material question of fact in issue, was properly refused.</p> <p>3. Instructions. The trial court cannot properly be requested to instruct the jury what comparative importance shall by the jury. be"attached to instructions given, even though a portion of such instructions was given at the request of one of the parties to the action.</p>

<p>Conflicting Evidence: Review. The record presenting but a question of fact to be reviewed upon conflicting evidence, the judgment of the district court is affirmed.</p>

The facts are stated in the opinion. Erom the facts as disclosed by the evidence there is noprivity between Layton and the Omaha Varnish Company by reason of his purchase from Bodine of his shares of stock, and he would not be liable to it in an action for unpaid subscriptions, and for the same reason he is not liable at the suit of creditors of the insolvent corporation against its stockholders to enforce payment of their claims. (Cook,.

district court of Lancaster county-Heard below before Hall, J. The opinion contains a statement of the case. The court erred in overruling the motion to transfer the case to the law docket and impanel a jury for the trial of the same, and erred in refusing to impanel a jury in the equity court to try the issues of fact.

Tried below before Chapman, J. It was error to overrule the motion to strike out the sheriff’s testimony. The confession was inadmissible. (3 Russell, Crimes [9th Am. ed.], 367; Kelly v. State, 72 Ala., 244; Redd v. State, 69 Id., 255 ; Young v. State, 68 Id., 569 ; Commonwealth v. Knapp, 9 Pick. [Mass.], 496; Queen v. Doherty, 13 Cox C. C. [Eng.], 23; Reg. v. Bate, ■11 Id. [Eng.], 686; Reg. v. Warringham, 2 Den'. C. C. [Eng.], 447; Sherrington’’s Case, 2 Lew.

<p>Mortgages: Foreclosure: False Representations: Defense: Pleading. To maintain an action for damages for false representation, the plaintiff must allege and prove (1) what representation was made; (2) that it was false; (3) that plaintiff believed the representation to be true, (4) relied on and acted upon it, (5) and was thereby injured.</p>

Error from the district court of Dawes county. Tried below before Kinkaid, J. The facts are stated in the opinion. The evidence shows that defendant had parted with the legal title to the attached property, as well as with the possession of the same. He therefore had no such interest therein as would support a motion to dissolve.

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

Error from the district court of Gage county. Tried ■below before Broaly, J. The facts are stated in the opinion. If the several mortgages are corfstrued separately and as independent transactions, then they and each of them are woid as covering all of the property of the debtor, and ¡property greatly in excess of the debt.

<p>Trial: Contract in Evidence: Construction: Instructions. Where, upon atrial, it appears that the rights of the parties depend upon a contract between them in evidence, it is the duty ' of the court to construe such contract according to its legal effect; and the refusal to give an instruction correctly construing such contract, and pertinent to the issues, is erroneous.</p>

Heard below before Doane, J. The facts are stated in the opinion. contending that appellant’s property, two miles from that portion of the street opened and extended and not abutting on the street improved, is not “adjacent” within the meaning of the statute authorizing the assessment, and that no valid assess-ment can be made on account of special benefits, cited: Rapalje & L. Law Die.; Anderson Law Die.; Bouvier Law Die.; People v. Schermerhorn, 19 Barb. [N. Y.], 556;…

Error from the district court of Merrick county. Tried below before Post, J. The opinion contains a statement of the case. to support the contention that to maintain replevin it was unnecessary to return or tender back the unpaid notes given < by the purchaser, because the sale was conditional and the properly belonged to the plaintiff when the defendants failed to perform the contract, cited: Marston v. Baldwin, 17 Mass., 605; Harkness v. Bussell, 118 U. S., 663; Albright…

. Appeal from the district court of Dawson county.. Heard below before Hameb, J. The facts are stated in the opinion. The law gives a married woman the right to bargain, sell, and convey her property. It enlarges her,rights by saying that she may enter into any contract with reference to her property in the same manner and with like effect as-a married man may in relation to his property.

Error from the district court of Saline county. Tried below before Gaslin, J. The facts are stated in the opinion. The plaintiff in error is so far a resident of Illinois as to be subject to garnishment in the courts of that state. (.Wells, Jurisdiction, sec. 29; Hannibal & St. J. R. Go. v. Crane, 102 111., 249; Burlington & M. R. R. Co. v.. Thompson, 47 Am. Rep. [Kan.], 497; Connor -v. Hanover Ins. Co., 28 Fed.

Error from the district court of Valley county. Tried below before Harrison, J. The facts are stated in the opinion. The mortgage was taken for a sum greatly in excess of the debt due the mortgagee, and for that reason is void as to creditors.

Heard below before Norris, J. cited: Darst v. Backus, 18 Neb., 233; Knox v. Williams, 24 Id., 633. A purchaser of the equity of redemption who agrees to pay the mortgage indebtedness as part of the purchase price of the premises cannot plead usury as a defense in a foreclosure proceeding. (Cheney v. Dunlap, 27 Neb., 405; Hough v. Horsey, 36 Md., 181.)

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

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

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

Error from the district court of Douglas county. Tried' below before Hopewell, J. The facts are stated in the opinion. The plaintiffs in error are liable upon the note as indorsers only. (Ellis v. Brown, 6 Barb. [N. Y.], 282; Spies v. Gilmore, 1 Comst. [N. Y.], 321; Cottrell v. Conklin, 4 Duer [N. Y.], 45; Moore v. Cross, 19 N. Y., 227; Bacon v. Burnham, 37 Id., 614; Phelps v. Vischer, 50 Id., 69; Slack v. Kirk, 67 Pa.

Heard below before Hall, J. cited i' Skyrme v. Occidental Mill & Mining Co., 8 Nev., 220; Kneeland, Mechanics’ Liens [2d ed.], sec. 8; Hallahanv. Herbert, 11 Abbott Pr.

Error from the district court of Knox county. Tried below before Norris, J, The question of bias or prejudice of other justices is a question of fact, and the justice before whom the objection is made is competent to decide the question from evidence, and is not conclusively bound by the statement of the applicant. (McOrory v. McOrory, 36 N. ~W. Rep. [Wis.], 604.)

Heard below before Hamer, J. The facts are stated in the opinion. A contract of separation between husband and wife is legal and should be enforced. (Galusha v. Galusha, 116 N. Y., 635; Randall v. Randall, 37 Mich., 563; Desbrough v. JDesbrough, 29 Hun [N. Y.], 592; Carpenter v. Osburn, 102 N. Y., 552; Dillinger’s Appeal, 35 Pa.

<p>1. Pleading: Remedy for Defect. Where a pleading is sufficient in substance, but wanting in form, or completeness, the remedy is by motion, and not by demurrer.</p> <p>2. Conversion: Pleading: Defense of Arbitration and Settlement: Evidence. In an action for the value of property alleged to have been converted by the defendant, the answer was “ That * * * the defendant had a full and complete settlement, and a full and complete arbitration and settlement, of all matters and things in dispute, which settlement and arbitration included all matters and things in controversy between plaintiff and the defendant at the time, and, more especially, the matter referred to in the petition.” Held, To present the issue of settlement as a distinct and separate defense, and that the defendant is not confined to proof of the arbitration alleged.</p> <p>3. Evidence examined, and held sufficient to sustain the judgment of the district court.</p>

<p>, Error from the district court of Clay county. Tried below before Morris, J.</p> <p>cited: Smart v. Hart, 44 N. W. Rep. [Wls.J, 514; Clark v. Phelps, 4 Cow. • [N. Y.], 202; People v. Judges of Dutchess County, 23 Wend. [N. Y.], 360; Harrington v. People, 6 Barb. [N. Y.], 612; Tompkins v. Hyatt, 28 N. Y., 355.</p>