Volume 4 — Nebraska Reports

William IT. Menk brought his action in that court upon an award made in his favor by commissioners under •the provisions of section ninety-seven, chapter eleven of the General Statutes, for damages occasioned by the appropriation, of a part of lots nine and ten in block thirty-four of the town of Blair, taken by the Ornaba and Northwestern Eailroad Company for right of way.

This action was brought on a judgment rendered in the circuit court of Whiteside County, Illinois, on the 9th day of June, A. D. 1866. The cause was commenced in the district court on the 15th day of November, A. D. 1873. Blodgett, who was defendant there, plead the statute of limitations, which provides that an action on a foreign judgment can only be brought within five years after the cause of action shall have accrued. Oen’l Statutes, Sec. 10, p. 525.

Tiib action was commenced by Lorin Miller on tlie twelfth day of October, A. D. 1872, against John A. Horbach, to recover the possession of a tract of land, describing the same by metes and bounds, formerly known as block 172-gr in tbe city of Ornaba. Miller claimed title through Moffat, to whom Horbach and wife had deeded the premises on the sixteenth day of January, A. D., 1858.

This was an application to this court, in the exercise of its original jurisdiction, for a writ of mandamus. The facts in the case sufficiently appear in the opinion of the court without setting forth the application at lengtlu The statute regulating contested elections for county officers, and which is construed by the court here, is as follows: “Seo. 26.

This was an appeal from a judgment of the district court for Douglas County, brought into this court under the provisions of the act of Mar. 3,1873, Gen. Stat., 716. No notice of appeal was given and the transcript filed in this court did not contain the testimony adduced on the trial of the cause in the court below. Docme for Appellees moved to dismiss the appeal for these reasons.

This, was an action of tort. Judgment overruling a motion to discharge an attachment issued in the cause, being given against Handy, defendant in the court below, he brought the cause here by petition in error. The opinion states the facts of the case. I. An action' of tort is one brought to recover damages.

Tbe plaintiff in error was indicted at tbe October term, A. D. 1873, of tbe district court of Johnson county,witb George W. Waldo, and Celeste Randall, for tbe murder of George G. Randall in March, 1873. A change of venue was granted, and the cause transferred to Pawnee county. The plaintiff in error made application to the court for a separate trial, which was granted, and the cause tried at a special term of court held in Pawnee county during the month of February, 1874.

This action was brought by Henry H. Harris and William M. Foster, against Samuel D. Mercer, they being the assignees of Rose Brothers, with whom Mercer had entered into a contract for the erection of a dwelling house in the city of Omaha.

Seymour and Wardell having brought suit in tbe court below against William P. Young, the cause was called for trial at tbe November term, A. D., 1873, of said court, and submitted to tbe jury at 4 o’clock, P. PI., on tbe third day Of that term.

Error from tbe district court of Nemaba County. Petition in equity to subject lots numbered nine, ten, and eleven, of tbe north-west quarter, and the sontb-west quarter of section three, town four, range fifteen east, and the north east quarter of section three, town four north, of range fifteen east, and the south-west quarter of the south-east quarter of section thirty-four, town five north, of range fifteen east, to the payment of a claim held by Alexander Blalce against…

<p>Error to the district court of Lancaster County.</p>

On the 13th day of September, A. D., 1866, one Joseph Deroin being seized in fee of certain tracts of land in Richardson county, conveyed the same to Henry S. Jennings, by a deed of warranty. Jennings afterwards conveyed portions of said laud to the different defendants, and one tract thereof by mortgage to O. P. Mason, who sold and assigned the same to defendant Ritter.

This case came up from Nemaha county. It originated in the police court of the city of Brownville, and was a complaint, under an ordinance of that city, against Minnie G. Cook for maliciously breaking, with a cudgel, five beer glasses of one John Wagner, in his place of business in said city. The proceedings were had on the 5th day of April, A. D. 1873. The defendant plead guilty, and was fined three dollars and costs.

William S. Horn brought suit against William W. Queen alleging in his petition that one A. O. Combs had purchased a tract of land in Lancaster county, by preemption certificate, of the Burlington and Missouri River Railroad Company, which Combs afterwards sold and transferred to Horn; that thereupon, under the contract of purchase, he entered into the possession and enjoyment of said premises, a considerable portion of which he broke up and prepared for cultivation; that…

The district court having rendered a decree foreclosing a mortgage executed by the defendants, Catherine L. Ingalls brought the cause here to reverse that decree. The facts fully appear in the opinion of the court. contended that Catherine L. Ingalls, at the time of the execution of the mortgage in question, was not of sufficient capacity to.convey or to execute the same. Such want of capacity is sufficient ground for avoiding the contract.

This action was commenced in the district court of Washington county, on the seventeenth day of July, 1813, by Ezra Ives against Edward Painter.

<p>Motion to dismiss appeal.</p> <p>cited. Faxt/re v. United States Express Co., 23 Ind., 48. Bigelow v. Wilson, 1 Piole., 485. Verges v. Roush, 1 Eeb., 345. Wiggins x). Peters, 1 Mete., 127. Avery v. Stewart, 2 Coxm., 72. Redgrave v. Baptist Church, 1 Web., 345.</p>

The opinion states the case. I. ■ At common law, a person could not convey property by covenant of seizin, without being in actual possession thereof; and hence that covenant run with the land and was a covenant for possession. This principle was supported by various acts of champerty in England, and in some of the states of this country, and by reason of which it was held by the courts in some states, that no action was maintainable before eviction.

Ebbob to the Douglas county district court. On the fourth day of September, 1871, the plaintiffs in error commenced suit against the defendant in error to restrain the sale of certain real estate which the defendant as county treasurer offered for sale for the taxes of 1870. The petition alleged, that from the time such tax became due the plaintiffs had and still have an abundance of personal property in the county of Douglas, out of which the tax could have been made.

This was an application to tbis court for a writ of man-damns.

Leonard and Schmidt brought an action in the district court of Lancaster county, against Adam Bax, husband'of Louisa E. Bax, the defendant in error, in which an order of attachment was issued and levied on a promissory note, executed by one George Douglas to the said Louisa E. Bax, Douglas being served as garnishee.

The opinion states the case. I. The issuance of the summons in this case was not the issuance of a summons in the case of Isaiah Coppock against O. J. Martin. Cen'l Stat., Seo. 64, 533. The summons did not give the name of Isaiah Coppock either in the body of it nor in the indorsements thereon, the name Isaiah being omitted, and the name Isaac being used. A person cannot have two christain names at one and the same time. Bacon's Abr., vol. 7,p. 7 (.B.), 1.

The defendant in error brought action upon a promissory note, made by J. O. Mackoy & Co., J. IT. Lacey, and J. M. Mackoy, to James W. Watson cashier, and alleged that the note was executed and delivered to and for the use and benefit of the bank.

The case was brought into that court by apjjeal on behalf of Eich and Hanlin, against whom judgment had been rendered by default in the probate court, in favor of W. S. Stretch. The statute concerning appeals from judgments of Justices of the peace, is as follows: “(900.) Sec. 1008.

Error from the district court of Douglas county. The action was upon a promissory note executed December 7th, 1867, by George M. Mills and others, who were sureties, to Alvin Saunders and Alfred Burley. It was given as part consideration for the west thirty-four feet of lot seven, in block one hundred and twenty, in the city of Omaha, sold by Saunders and Burley to Mills by deed with covenants of warranty and against incumbrances.

The facts are as follows: On the fifth day of April, 1871, James D. Brown, plaintiff, and Thomas M. Boyer, one of the defendants, entered into a written contract, under which the former furnished the latter a herd of cattle consisting of cows and young stock, estimated at an agreed price of thirteen hundred and sixty-five dollars. Boyer agreed to take good care of the herd for three years from the first day of April, 1871.

The action was upon four promissory notes, executed by Richards, the plaintiff in error, dated April 6, 1870, payable one year after date with interest at the rate of ten per cent per annum, secured by mortgages upon real estate situated in Omaha, and made payable to the order of John A. Parker.

Error from tlie district court of Cuming county. The case was brought into that court, by appeal from the probate court, and tried de novo. The jury returned a verdict in favor of the defendant in error for five hundred dollars. This verdict was set aside, and at the second trial the verdict was again for defendant in error, but without damages. Motion for a new trial overruled. Judgment against plaintiff, who brought the case here by petition in error.

This was an application for a mandamus against tbe respondent, to compel him to draw bis warrant for $166.66, salary alleged to be due tbe relator on tbe first of January, 1876, for tbe months of November and December, 1875, and representing the increased compensation due tbe relator under tbe provisions of tbe constitution taking effect November 1, 1875.

The plaintiff.in error was indicted at the March term, A. D., 1875, of the district court for the murder of James McGuire, on the twenty-seventh day of September, A. D., 1874, in… Held: that it-was not necessary that the record should show that the defendant was asked if he liad any legal cause why judgment should not be pronounced against him. State v. Stiefle, 13 Iowa, 603. Statutes of Nebraska similar to that of Iowa. Gen. Stat., 832, See. 495. Iowa Statutes, See. 3065.

Original application for Mandamus. It set forth that tlie relator bad, on tlie first day of February, 1875, been duly appointed, commissioned and qualified as adjutant general of tbe state, by bis excellency Silas Garber, Governor, and that be bad ever since performed tlie duties of that office and was fully entitled to tbe emoluments thereof; that the legislature at its session in 1873, appropriated tbe sum of four hundred and fifty dollars per annum as the salary of the…

This was an appeal from a decree dismissing plaintiff’s petition rendered by Hon Samuel Maxwell, sitting in the district court of Cedar county. It was a petition in equity, filed by the appellant, against P. C. Nissen, Henry Filber, Peter Johnson, and Mrs. Christina Meng, widow of Jesse P. Meng, deceased.

This was an application fox Mandamus to compel the defendant, as treasurer of a school district, to pay an order drawn upon him by the director and moderator. The order was in payment of material furnished by the relator to the school district, under an alleged contract entered into by the relator and certain officers of the district for the erection of a school house.

The facts are fully set forth in the opinion. The two cases involved the same question and were argued together. A subscription to the stock of a railroad company, conditioned to be paid when $5,000 was raised for a certain purpose, is a conditional contract. Chase v. Sycamore The answer sets up certain fraudulent representations on the part of the plaintiff below, and also sets up a parol agreement between the parties, said to have been made prior to the making of the note.

<p>1. Practice: mandamus. Application for the writ should be made by motion, accompanied by an affidavit setting forth the facts upon which it is based. A petition, verified in the same manner as a pleading in an ordinary civil action, is insufficient.</p> <p>2. Officers: resignation. The acceptance of a resignation of a municipal office, by the authorities to whom it is tendered, is not necessary to make the same effective.</p>

The opinion states the facts of tlie case. to the point that the plaintiff did not, by filing his petition in the district court, waive the error committed by that court in the reversal of the judgment of the justice of the peace, cited, Shoff v. Wells, 1 Neb., 168. Minor v. Smith, 13 Ohio State, 78. PowelVs Appellate Proceedings, 207. Nor was it necessary for Lash to except to the ruling of the district court in reversing the judgment of the justice.

Original application for Mandamus to compel the defendant to pay over money belonging to a school district, of which the relator was treasurer. An alternative writ was allowed, and upon the coming in of the answer, the cause was sent to a referee to take the testimony. The facts are fully set forth in the opinion of the court.

This was an action, brought in the Lancaster district court, to recover damages for the destruction by fire, of plaintiff’s trees, straw, etc., on his premises. The fire was communicated by sparks or coals from a railway engine to dry grass and weeds, on its right of way, and passed thence over intervening lands to plaintiff’s farm, situated a half-mile from the track. The season was a dry one, and at the time of the fire a heavy wind prevailed.

Error from the district court of Buffalo county. It was an indictment for murder against the plaintiff in error and two others, upon which separate trials were had. That of the plaintiff in error resulted in a verdict of guilty, and. he brought the cause here upon writ of error. The regular term of court for the county of Buffalo was fixed by law to be liolden on the second Monday of September.

Error from the district court for Douglas county. Ti-ie action in the court below was the foreclosure of a mortgage on real* estate. The decree was rendered in 1873, and the sheriff of Douglas county appointed a sjiecial master commissioner to make the sale. The order of sale was issued June 10, 1875, and at the sale, on the 20th day of July, 1875, the plaintiff bid in the property in his own name.

This was an application for an injunction to restrain the collection of road and school taxes assessed, in the year 1874, against lands of the plaintiff lying within the county of Lancaster.

This was an action brought by the plaintiff in error, a married woman, in the district court of Lancaster county, against Hoselton, to whom she had executed a promissory note, secured by a mortgage on her separate,estate, and Monell and Lashley to whom the note had been transferred. Before the assignment of the note, she executed a deed of trust to the same premises, in which the defendant Lantz, was named as trustee.

It was an action of ejectment. The land in controversy was entered by William A. Stone. On the 22d day of April, 1865, it was sold for taxes under the revenue act then in force. The treasurer of the county executed a tax deed therefor on the 17th day of June 1867, and Sutton, who was the assignee of the purchaser and the owner of the tax title, went into possession. He afterwards sold to Young.

This money was collected under an act of congress authorizing tbe re-imbursement to the territory of Nebraska of certain expenses incurred in repelling Indian hostilities, and by virtue of that act tbe amount proved up and allowed by tbe general government was paid by drafts on the treasury of tbe United States, which with all tbe subsequent indorsements are as follows: Draft No. 3373. No. 3619.

This was an appeal from a decree rendered by Hon. George B. Lake, sitting in tlie district court of Douglas county, granting a perpetual injunction, restraining the defendants from levying a special assessment upon real estate abutting upon a public street in thp city of Omaha, to pay one-half the expense of grading the same. The material facts in the case appear in the opinion.

This was a petition in error from a final order of the district court of Lancaster county, dismissing an appeal taken by the defendants from a judgment of the probate court in a civil action therein determined, in May, 1875. in contending that the appeal act of 1875 was unconstitutional, cited The People v. McCollum, 1 Web., 199. Cooley Const. Lim., 151. State v. Silver, 9 Nevada, 227. Winona v. Waldron, 11 Minn., 515. People v. Mahoney, 13 Mich., 497.

This was a petition in error to reverse a judgment of tbe district court of Dixon county, obtained against plaintiff in error, wbo was- defendant there. The facts appear in the opinion. contended, that the district could set up any defense which it would have had in an-action brought by the payee of the orders sued on, and cited the following cases : Dillon on Mun. Corp., 406, 407, 412. Halstead v. The Mayor, 3 New York, 430. Thomas v. City of Richmond, 12 Wall., 349.

<p>Partition: accounting for rents and profits. In a partition suit, the defendant was held properly charged with rents and profits received by his son-in-law, who held title to the premises by virtue of a tax title, it appearing in evidence that the defendant was an active agent in procuring such title, bidding the premises off at private tax sale, and that the rents paid to his son-in-law were paid by defendant’s direction. Held, also, that the defendant was properly charged with the rental value of a portion of ihe premises, he occupying them in person, and refusing to rent them to others.</p>

Error from tlie district court of Otoe county. Mason and Walker brought suit in that court upon an account for the services of a stallion, performed under a contract by which Starring agreed to pay a certain price for such service. Starring answered, admitting that he made an agreement, for the services of the horse, with one Mastin, the agent or partner of Mason and Walker, and alleging that he paid Mastin in full for such services.

Scofield c& Ireland, for plaintiff in error, said that in the cases relied upon by the defendant, the mortgage was the only evidence of the debt, with no provision that in case of default the mortgagee was to do anything except take possession of the property in payment of his debt if he saw fit to do so. Such is not the case at bar.

The plaintiff in error having appealed to the district court from a judgment rendered against him by a justice of the peace, and the district court dismissing the appeal, he came here by petition in error.

(with -whom was E. F. Wcm'en for McCann), cited Harris v. Wilson, 7 Wend., 57. Jones v. Hurlbut, 39 Barb., 403. Williams v. Souter, 7 Iowa, 443. Lyon v. Daniels, 14 Penn. State, 197. contended that the declarations of McCann as to who composed the firm, were clearly competent, as he was a partner, and the partnership was still in existence, and as the plaintiff was corroborated by the testimony of McCann and Converse, the proof of hiring and by whom hired was complete.

This was an action upon a promissory note, brought in the district court for Thayer county, in which an attachment was issued and levied upon land owned by Livingston.

This was an appeal from a decree rendered by lion. Samuel Maxwell sitting in the district court for Douglas county. It was an action to compel an account, and for the redemption of four shares of stock in the Council Fluffs and Nebraska Ferry Company held by the defendants. The finding in the court below was in favor of the plaintiff, an account stated by a referee, and a final decree rendered against the defendants for $7,532.42.

<p>1. Judicial Sale. A sale of mortgaged premises was made under a decree of foreclosure which found the amount due plaintiffs to be $724.58, and the amount due two of the defendants, senior mortgagees, $2887.50. The order upon which the sale was made, stated the amount of the decree to be for $724.58, omitting the amount found due the senior mortgagees. The plaintiffs became the purchasers for $36S4. Afterwards upon motion of the mortgagors, plaintiffs assenting thereto, the sale was set aside, but upon motion of the senior mortgagees, this last order was vacated, the sale confirmed, and purchase money ordered paid into court, Held, that there having been no sale under the decree in favor of the senior mortgagees, they were not in a position to insist upon a confirmation of it.</p> <p>2. -, It is not the design of the law to permit each mortgagee, in such cases, to have a separate order of sale, for the amount found due him, but the order must be as broad as the decree, and issue for the entire amount found due therein, to pass a perfect title by the sale.</p> <p>3. Practice in the Supreme Court. The date of filing indorsed on a transcript by the clerk in a cause brought to the supreme court, is merely prima facie evidence of the time at which it was received by him. The court will correct a mistake made in the date, to the prejudice of either party, and affidavits will be received for the purpose of determining when the transcript was delivered to the clerk.</p>

Error from Otoe county district court. It was a conviction'upon an indictment for assault with intent to commit murder. The defense was insanity. Exceptions taken to refusal of instructions to tlie jury requested on belialf of the prisoner, and to charge of the court. Yerdict of guilty, judgment and sentence. Cause brought liere by writ of error. The instructions requested were: First. The- burden- of proof is on the prosecution to show sanity.. Second.

<p>1. Constitutional Law; duties of justices of the peace. A justice of the peace must hold his office in the precinct for which he is elected. The act of 1875 {Laws, p. 58), authorizing justices in cities and towns “to hold their offices in other precincts,” etc., is unconstitutional.</p> <p>2. Mandamus will lie against a justice of the peace to compel him to hold his office in the precinct for which he was elected, and any citizen thereof may maintain the action.</p>

<p>Error to the district court of Richardson county.</p>

This was a petition in error to reverse a judgment rendered against S. O. Abbott for the sum' of $2792.18, in the district court of Douglas county. He was sued there, with several others as co-partners, under the firm name of The Register Smelting and Refining Company, and on the trial asked - the court to instruct the jury as follows: 1.

For any further understanding of the case, beyond the statement of it in the opinion, reference may be had to Kittle v. DeLamater, 3 Neb., 325. relied mainly upon the decision of the court in the same case, as reported in 3 Neb., they contending that the law as there laid down would prevent any recovery on the note, and citing the same cases as before in support of that view. contended, that within the meaning of the New York statute, there must be a publication of the…

<p>Error to the district court of Gage county.</p>

The plaintiff alleged that the defendant, E.B. Stephens, executed and delivered to him two promissory notes and two mortgages upon real estate, to secure the payment thereof, and asked for a decree of foreclosure, and that the mortgaged premises should be ordered sold to pay said notes.

<p>State Boundaries. A change in the main channel of the Missouri river, does not alter the boundary line between Iowa and Nebraska, as established by Congress. It remains as before, in the old abandoned river bed.</p>

Error from the district court of Richardson county. It was a suit to enjoin the operation of defendant’s road across plaintiff’s premises, unless payment was made of a judgment recovered by him against the Burlington & Southwestern R. R., for damages sustained by the location of that road, it being alleged that the latter road had sold out to the defendant, who completed the construction, etc. A demurrer to the petition was sustained, plaintiff excepted, and brought the…

<p>' Erkoü from the district court of Douglas county. The opinion states the facts in the case.</p>

It was an action for injuries sustained by defendant in error near, a crossing of the railroad, and the trial below resulted in a verdict for him, the damages being assessed at $8,500. Of this amount $3,500 was remitted, and judgment entered against tbe company for $5,000, to reverse which they brought the cause here by petition in error. cited, Shearman and Red field on Negligence, Sees. 9, 595. 8 tuche v. Mi and M. R. R., 9 Wis., 202.

but by leave of the court George W. Docme appeared on behalf of some of the holders of the bridge bonds, and in opposition to the application cited, Internal Improvement Act, Laws, 1869, 92. Acts appropriating lands donated to the state for purposes of internal improvement to the erection of certain bridges, passed in 1869 and 1871. Hallenbeeh, v. Llahn, 2 Web., 398. Dillon on Mim. Oorp., See. 588. Sharpless v. Mayor, 21 Penn. State, 496. Bute v. Muscatine.,8 Wall., 575.

This was a petition in equity, filed by Henry T. Clarke, in tbe district court for Douglas County, and tried before Chief Justice Lake, by whose judgment it was dismissed for want of equity. Tbe plaintiff appealed.

<p>Homestead. Judgment was recovered against C., in April. He was at that • time the owner of certain real estate, and in October following entered upon and occupied the same with his family. While in possession, execution issued, levy and sale made. Held, that the premises were not exempt as a homestead.</p>

This was an action to foreclose a mortgage, executed by defendants, Wilcox and wife, upon certain property in Brownville, Nemeha county, on the third day of February, 1872.

This was an action brought in the district court of Richardson county to recover a judgment against certain lands and lots in said county for the delinquent taxes of the years 1870 and 1871, under the provisions of an act passed February 27, 1873, entitled “an act to provide relief for delinquent tax payers.” Geñ. 8tat., 940. D. PI.

Tins was an information in tbe nature of a quo warranto, filed in tlie district court of Cheyenne county, to test the right of Thomas Kane to hold the office of county treasurer of that county.

<p>1. Promissory Note: consideration. Where the statute of a state prescribes certain words to be inserted in the body of a negotiable note, given for a patent right, subjecting it to all the defenses as if owned by the original promisee, Held, that if the note is executed in the ordinary form — omitting the words prescribed — a bona fide purchaser of the same before maturity and without notice, takes it divested of all equities between the original parties, and may enforce the payment thereof.</p> <p>2. Mortgage: assignment. A bona fide purchaser for value of a negotiable promissory note, secured by a mortgage, before maturity and without notice, takes the mortgage as he does the note, discharged of all equities which may exist between the original parties. Following Webb v. Hoscltony ante., p. 308,</p>

<p>Error to the district court of Richardson county.</p> <p>cited Dralcel/y v. Gi'cgg, 8 Wall, 242. - HioJ&man v. Jones, 9 Wall., 197. Newmmi v. Gity, 18 Ohio, 323.</p>

contended that the verdict was insufficient in law, that the court erred in instructing the jury that the possession of stolen property, unaccompanied by other circumstances of guilt, is sufficient to warrant a conviction, that the court erred in stating to the-jury the charge contained in the indictment, and also, in giving a definition of larceny. Our statute gives no definition of larceny, and consequently, the term is to be understood as meaning the same as at common law.

<p>1. Judicial Sale. The rule of caveat emptor applies to judicial sales, because from the nature of the transaction there is no one to indemnify the purchaser for any loss he may sustain.</p> <p>2. -. Where the sheriff by mistake, levied upon certain tracts of land covered with timber, which were appraised in the aggregate at the sum of $1,634, and plaintiff, relying upon the levy and appraisement, purchased the same for $1,090, procured a confirmation of the sale, anda ' deed from the sheriff, and it was afterwards discovered that the numbers of the land, levied upon and sold, did not include the timber land, but consisted of worthless sand banks on the waters edge of the Missouri river, it was held, on a petition of the purchaser to set the sale aside, that he was entitled to relief, and the rule of caveat emptor did not apply.</p> <p>3. --: COSTS. But as the defendants did not appear to be in fault, it was held, that the costs should be taxed to plaintiff.</p>

This was a motion for an order of the court requiring the clerk to file and enter upon the appearance docket, and other proper records, the application of the relator for a writ of mandamus against the defendants.

Judgment having been rendered against McDowell in the probate court of Jefferson county upon an award of arbitrators, he appealed to the district court, and judgment being rendered there dismissing his appeal, he brought the cause here by petition in error.

It was an indictment for an assault upon Edward Rosewater, with intent to murder. The trial below before Savage, J., resulted in a verdict of guilty, and the sentence of the prisoner to the penitentiary for four years. Fie sued out a writ of error to this court.

<p>1. Practice: APPEALS. The appeal act of March 3, 1873, has no retrospective operation, and does not apply to cases determined previous tot its passage. And 2V that the remedy given by the act is not exchisive, but concurrent with the remedy by error. Gen. Stat., 628-632.</p> <p>2. -: STAY OF EXECUTION. The taking of a stáy of execution, prior to the act of February 23, 1875, is not a waiver of the right to prosecute proceedings in error in the supreme court.</p> <p>3. Railroad Companies: liability of stockholders. In this state, where the amount due from each stockholder in a railroad corporation, on account of subscriptions to its capital stock, equals or exceeds the demand of a creditor of such corporation, a joint judgment therefor may be rendered against all of said stockholders. The stockholders in such case are treated as partners.</p> <p>4.--:--; CONSTRUCTION OF statute. The subdivision of the general incorporation law, entitled “Corporations,” applies to railroad companies organized under said law, and a failure to comply with its provisions renders the stockholders individually liable for the corporate, debts.- Per Lake, Ch. J. *</p>

The cause was first brought here upon appeal, but upon motion the appeal was dismissed, and leave being granted to file a petition in error, the cause was heard on the assignments of error therein set forth. cited: Gen. Stat., 538. 1 Story’s Equity, 159. 1 Wash’s PI., 771. Wells v. Yates, 44 W. Y. 525. Bryce v. Lorilla/r'd Ins. Co., 55 N. Y., 240. Globe Ins. Co. v. Boyle, 21 Ohio State, 120. State v. Boring, 15 Ohio, 507. Ex gyarte Fulton, 7 Cow., 484.

Saunders brought suit against Wilcox in the district court of Douglas county, and judgment being rendered against the latter, he brought the cause here by petition in error. The cause was tried below before Chief Justice Lake. This court united in an affirmance of the judgment, giving in the order of their presentation here the following opinions.