Volume 5 — Nebraska Reports

court for Otoe county. The plaintiff in error was jointly indicted with one McElroy and several others, for burglary and larceny. He was tried separately, found guilty of grand larceny, and sentenced to five years imprisonment in the penitentiary. He then sued out a writ of error to this court. cited Gurry v. State, 4 Neb., 545. 3 Wharton Crim. Law, 3160. State v. Berlin, 24 La. An., 46. Eastwood v. People, 3 Park. Cr., 25.

<p>Error to the district court of Merrick county. The cause was submitted upon the stipulation set forth in the opinion.</p>

<p>Error from the district court of Lincoln county.</p>

<p>1. Execution: sale: disposal of proceeds. Under the statute (civil code, Sec. 484) the money raised on an execution sale of a debtor’s land can be apportioned pro rata only to judgment creditors of such debtor, who have executions issued during the term at which the judgments were rendered or within ten days thereafter, or where two or more executions are issued and placed in the hands of the officer on the same day, and in the latter case preferable liens shall not be affected by such apportionment.</p> <p>2. -: -: statutory construction. The clause in the statute, “In all other cases, the writ of execution first delivered to the officer shall be first satisfied, ” must be construed as relating to executions in the hands of the officer at the time of the sale, and not to any executions returned by the officer with or without a levy thereon.</p> <p>3. -: -: rights of purchaser. A sale upon execution vests in the purchaser all the rights of the judgment debtor to the property, but that right is subject to all liens prior to the lien of the judgment on which the execution sale is made.</p> <p>4. -: lien of judgment. Under the act of February 27, 1873, (Gen. Stat., 613), the lien of a judgment, whether rendered prior or subsequent to its passage, is preserved for the period of five years after its rendition, and it is sufficient if the execution is taken out and levied at any time before the expiration of five years next after the rendition of the judgment.</p>

On the eighth day of December, 1874, the defendant in error caused a transcript of the judgment to be filed in the office of the clerk of the district court of said county. At the date of the filing of this transcript Eaton was the owner of two feet off the east side of lot ten, and twenty feet off the west side of lot eleven, in block one hundred and twenty-one, in the city of Lincoln, in said county ^ and was at said time occupying said premises as a homestead.

The opinion states the case submitted, as a part of tbeir argument, an opinion prepared by Hon. Isaac F. Eedeield in support of their position that the court below erred in its instructions to the jury, and in rendering judgment against the plaintiff in error for the amount of unpaid assessment levied on the shares of stock, subscribed by the plaintiff in error to the capital stock of the Omaha Hotel Company. The opinion of Judge Eedfield is as follows: CUMULATIVE REMEDIES.

Judgment there being entered against the plaintiff in error, he brought the cause here by petition in error. The opinion states the facts necessary to an understanding of the case.

<p>1. Pleading: contract: averments of petition. In actions on contract, the plaintiff must aver performance of the conditions precedent to be performed on his part to constitute a cause of action against the defendant; unless the necessary averments are made which will take the case out of the general rule, and fix the defendant’s liability without such performance.</p> <p>2. Contract: conditions precedent: waiver. If waiver of the condition precedent by defendant is pleaded, then the question whether the defendant has or has not waived his legal rights, and by his own acts become estopped from denying his liability under the contract, is a question of fact, which is alone within the province of the jury to determine upon the testimony in the case, under proper instructions by the court, defining what constitutes such waiver.</p>

<p>1. Appeal from Probate Judge. A party appealing from a judgment of a probate judge has ten days "within which to give the undertaking in appeal; and until the second day of the term next thereafter to deliver the transcript to the clerk of the appellate court. ‘</p> <p>2. -. The case of Smails v. White, 4 Neb., 353, cited with approval.</p>

This was a petition in error to reverse a judgment of the district court for Otoe county. It was an action brought to foreclose a mortgage given by Holly and wife to Alexander Majors on real property in Nebraska City, dated May 30, 1860, to secure a note for $4,000, given by Holly to Majors, and payable on or before the first day of August, 1861.

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

<p>Eeeoé from the district court of Lancaster county. Tried below before Pound, J. The opinion states tbe case.</p>

<p>1. Practice: motion for new trial. To obtain the review of a case in the supreme court, a party dissatisfied with either the verdict or judgment in such case, must file the proper motion and in this way present the questions of law fairly and fully to the court below.</p> <p>2. Pleading: replevin. Under the statute, upon a plea of general denial, in actions of replevin, the defendant may have affirmative relief in damages.</p>

<p>Application for mandamus.</p>

Tried below before Lake, Cii. J. The case is stated in the opinion. cited the various sections of the revenue law bearing upon the duty of the county treasurer in the collection of taxes, and Thomas v. Auditor of Hamilton Country, 6 Ohio State, 113. cited The People v. Schuyler, 4 New York, 173. Harris v. Hanson, 11 Me., 241. Ohio v. Jennings, 4 Ohio St., 418. Skinner v. Phillips, 4 Mass., 69. State v. Shaclclett, 37 Mo., 280. Strunk v. Oeheltree, 11 Iowa, L58.

, sitting in the district court for Cuming county. The case is stated in the opinion. Under the provisions of our law no trust can be created, nor will any trust be implied, or result, unless the same be made in writing and signed by the party declaring the same, unless by some act or acts of the cestui gue trust, and the trustee, they bring themselves within the exception named in the statute, to-wit: “unless by act or operation of law.5> Gen. Stat., 892, Sec. 3.

Error from tbe district court of Lancaster county. It was an action brought by Wasbburn and Leiby against Tbe Atchison & Nebraska Railroad to recover damages for injury to certain horses and mules received from them by said railroad company as comriion carriers to carry over its railroad.

The commissioners of that county in May, 1872, entered into a contract with certain parties for the erection of a court house and jail. In part payment thereof they issued warrants to the contractors upon the court house fund levy of that year. In April, 1873, this levy was stricken from the assessment roll by order of the commissioners, and the county treasurer instructed to return all moneys collected by virtue of said tax to the persons having paid the same.

Tried below before Pound, J. The opinion states the case. I. The doctrine as finally settled in this country by the clear weight of authority is, that when one person contracts with another, who is a skillful, competent, and reliable person, for tlie doing of a piece of work or job, the.performance of which is not in itself a nuisance, and the contractor has the entire control and management of doing said work or job to the exclusion of the employer, he in no wise…

This was an application for a mandamus requiring John B. Dinsmore, county clerk of Olay county, to call to bis assistance two disinterested electors in said county and proceed to re-canvass the votes cast at an election held in said county on the twentieth day of September, 1875, for the relocation of the county seat.

Error from the district court of Otoe county. It was an action upon an account, a copy of which annexed to the petition, contains one hundred and thirty items, under one hundred and twelve different dates, from November, 1866, to December 31, 1872, and amounting to $10,960.65; and has twenty-six different credits, amounting to $8,332.26. The sections of the civil code providing for the reference of causes are as follows: Sec. 298.

Error from tbe district court of Eicbardson c.ounty. Tried below before Weaver, J. The opinion states the ca!se. I. A judgment lien is superior to an unrecorded deed, and, therefore, stronger than a mere verbal sale, as set up in plaintiff’s petition. Freeman on Judgments, Sec. 366. Gower v. Doheney, 33 Iowa, 36. MoFadden v. Worthington, 45 111., 362. Bennet v. FooJes, 1 Neb., 465. II.

This was an information in the nature of a quo warranto, brought in this court in the exercise of its original jurisdiction.

Indictment for forgery found in the district court of Jefferson county. Defendant found guilty, sentenced to the penitentiary for eighteen months, and sued out this writ of error. The cause was tried below before Weaver, J.

The case was thus: Plaintiffs sold to one Johnson a Buckeye mower and reaper, receiving from him two notes payable to them. Afterward, Thomas B. Parker recovered a judgment against Johnson, issued execution thereon, which was placed in the hands of defendant, who was at the time a constable, who levied on the machine and took the same into his possession for the purpose of satisfying the debt of Johnson, and plaintiff replevied the machine from defendant.

Error from the district court of Kearney county. Tried below before Post, J. It was an indictment for murder and came before this court in 1876, being reported in é Neb., 277. The accused being then ■ awarded a new trial procured a change of venue to Kearney county, where he was found guilty of murder in the second degree and sentenced to imprisonment in the penitentiary for thirty years. He again brought the cause here upon writ of error.

<p>Error from the district court of Washington county.</p>

Error from the district court of Richardson county. Tried below before Weaver, J. Billings was defendant in the court below, and judgment being rendered against him, he brought the cause here by petition in error. The opinion states the case.

<p>1. Practice: vacation of judgment. The power given to courts of record by section 602 of the civil code, to vacate or modify their own judgments or orders after the term at which they are made, does not confer original jurisdiction.</p> <p>2. -: -. The power thus conferred is only that of further proceedings, for the causes enumerated, in an action after judgment; and are therefore merely special proceedings in an action, and are not an original action, and therefore not appealable.</p> <p>8. -: review of judgment. Section 584 of the civil code provides that proceedings to review a judgment of the district court, in such a case, shall be by petition in error.</p>

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

. Plaintiff, as executor of the estate of William D. Shell enbarger, brought the action to foreclose a mortgage made by Julia A. Biser to William D. Shellenbarger, February 21, 1872, on lot one, in block six, in Brown’s addition to the city of Brownville, and recorded at four o’clock p. m. of the same day, and made Julia A. Biser, Forest K. Biser, and Cyrus W. Wheeler defendants.

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

Error from the district court of Johnson county. The opinion states the case. I. The petition must state all the facts necessary to constitute a cause of action. Held: that the indorsee by his own laches made the note his own and discharged the indorser and as to him this must be considered payment, and the indorsee was compelled to convey. Hall v. Green, 14 Ohio, 500.

The opinion states the case. insisted that a bank failing to demand payment of a note or bill left with it for collection, becomes liable to the owner for the amount; it is bound to demand payment of the makers, and to cause notice of non-payment to be given to all the indorsers. Sm-edes v. Utica flank, 20 Johns., 372. Fdbens v. Mercantile Bank, 23 Pick., 330. Ayrault v. The Pacific Bank, 47 ,N. Y., 570. Bank of Washington v. Triplett, 1 Pet., 25.

<p>Error from the district court of Cuming county.</p>

<p>1. Practice: verdict. An order of the court below overruling a motion for a new trial for the reason that the verdict of the jury was against the weight of evidence, will not be disturbed, unless it be very clearly so.</p> <p>2. -: preponderance of evidence. Mere preponderance of testimony against the verdict is not enough to warrant the court in disturbing it.</p> <p>3. -:--. It is not the number of witnesses produced by a party, nor their language alone, that should be looked to in determining whether a new trial should be granted, but all the surrounding circumstances should be taken into the account and given due weight.</p>

Error from the district court of Richardson county. The opinion states the facts of the case. cited Herrick v. Baldwin, 17 Minn., 209. McOramer v. Thompson, 21 Iowa, 244, 249. Murray v. Graham, 29 Id., 520. Rainbolt v. Eddy, 34 Id., 440.

Error from the district court of Kearney county. It was.an action of replevin brought by the commissioners of Kearney county, against Kent to recover the possession of a certain fire proof iron safe. The plaintiffs gave a delivery bond and took possession of the safe. The safe had been, up to the 29th day of November, 1873, in possession of the plaintiffs.

Error from the district court of Otoe county. It was an action brought by Brock against Hopkins, and the petition alleges that in May, 1872, the latter was county clerk and ess officio clerk of the district court for Otoe county; that at said term the plaintiff.

<p>Error from the district court of Otoe county.</p>

<p>1. Judicial Sale. A purchaser at judicial sale, under a decree of • foreclosure, takes the property subject to whatever liens may exist thereon at that time.</p> <p>2.-: taxes. And if such purchaser, after the sale, pay delinquent taxes that have accumulated thereon, he is not entitled to be reimbursed out of the purchase money as against the lien of a junior mortgagee.</p>

<p>1. Practice: error. Where the judgment of a justice of the peace is taken on error to the district court and reversed, and the original case retained for trial in that court, such judgment of reversal is a final judgment, and may be reviewed by the supreme court without waiting for the final disposition of the original case in the supreme court.</p> <p>2.--: waiver of error. The failure to except to such judgment of reversal, and to take steps to set it aside until after the original case has proceeded to final judgment, will be deemed a waiver of all errors committed in its rendition.</p>

Error from tbe district court of Douglas county. Tried below before Lake, Oh. J. The opinion states the facts necessary to an understanding of tbe case.

Error from the district court of Cuming county. The facts necessary to an understanding of the case are stated in the opinion. cited Story on Bills, 14, 189, 191, 193, 417. Shirts v. Overjolm, 60 Mo., 305. Chapman v. Bose, 56 New York, 137. Putnam v. Sullivan, 4 Mass., 45. Douglass v. Matting, 29 Iowa, 498. Zimmerman v. Bote, 75 Penn. State, 188. Beed v. Arnold, 10 Kan., 102. Whitaker v. Parker, 42 Iowa, 585. King v. Donahue, 110 Mass., 155.

<p>Error from the district court of Dodge county. The opinion states the case.</p> <p>cited Ferris v. Bramble, 5 Ohio State, 109. State v. Berry, 12 Iowa, 58. Williams v. Holmes, 2 Wis., 129. Thatcher v. Powell, 6 Wheat., 119. Dolphin v. Pedley, 27 Wis., 469.</p>

Error from the district court of Richardson county. The facts necessary to an understanding of the case are stated in the opinion.

<p>Appeal from the district court of Johnson county. The opinion states the ease.</p> <p>cited Nycurn v. McAllister, 33 Iowa, 375. Watson v. Voor-Jiees, 14 Kan., 328. Frisbie v. Whitney, 9 Wall., 187. Myers v. Croft, 13 Id., 291. Bobbins v. Bunn, 54 111., 48. In Be Cross, 2 Dillon Circuit, 320. Bector v. Botten, 3 Neb., 172. Ewing v. Howard, 7 Wall., 499.</p> <p>cited Baggs v. Loudenback, 12 Ohio, 156. Rains v. Scott, 13 Ohio, 115. Corcoran v. Powers, 6 Ohio State, 37. Morton v. Butherford, 18 Wis., 298. McFarland v. Carr, 16 Id., 259. Eyger v. Byley, 2 Neb., 25. Miller v. Little, 47 Cal., 348. Dawson v. Merrill, 2 Neb., 124. Dittingham v. Fisher, 5 Wis., 480. Webb v. Hoselton, 4 Neb., 308.</p>

There was a stipulation in the cause as follows: “ It is stipulated and agreed by the parties hereto, that the following are facts in this cause: “ 1. That defendants, Michael Yoakam and Mary E. Yoakam, made and delivered to plaintiff, James E. Jones, a mortgage to secure payment of a certain note, on the premises described in petition, said note dated April 21, 1873. “ 2. That said mortgage was recorded on the 23d of April, A. D. 1873, in county clerk’s office. “ 3.

Eeeoe from the district court of Richardson county. Tried below before Weaver, J. It was an action brought by Miller, as treasurer of that county, to recover of Miles the five per cent fee allowed county treasurers, by section 20 of chapter 22, General Statutes.

Information in the nature of a quo warranto, brought in the district court of Richardson county, before Weaver, J., on the relation of Eller, district attorney of the first district. To the information, Ryan, the respondent, filed-an answer, to which the relator demurred; and upon a hearing thereof, the demurrer was sustained, and the judgment of ouster duly entered.

This was a petition in error, filed by tlie district attorney, to take the opinion of this court upon points which arose on the trial below, before Pound, J., and ruled in favor of Way, who had been indicted in the district court of Lancaster county for the crime of adultery. The testimony as to subsequent improper familiarities should have been admitted. Whar. Or. Law, 261, 599 and 2663. Bish. Stat. Crimes, Secs. 682 to 784. Thayer v. Thayer, 101 Mass., 111.

Error from tbe district court of Franklin county. The opinion states facts sufficient to an understanding of the case. It must be conceded that tbe defendant, under tbe act of congress, was clearly entitled to the patent for the land in controversy, and that no condition attaches to it by force of congressional legislation — and if any trust attaches, it must be outside of the statute.

The opinion states the case. I. The set-off, by an equitable proceeding of independent mutual claims under certain circumstances, is a right long recognized. And the insolvency of one of the parties is of itself a sufficient ground for allowing the other party to insist upon this right. Lindsey v. Jackson, 2 Paige, 581. Pond v. Smith, 4 Conn., 297. Gay v. Gay, 10 Paige, 369. Simson v. Hart, 14 John., 63. Jeffries v. Evans, 6 B. Mon., 119. E. LI.

This was an appeal from a decree rendered by Griffey, J., in tbe district court of Cuming county. It was an action for the foreclosure of certain mortgage deeds alleged to have been executed and delivered by the defendant, John D. Neligh and Catharine B. Neligh, to secure the payment of a certain promissory note for $1,000, payable to the order of Elizabeth BE. Hall, alleged to have been made, executed, and delivered by said John D. Neligh.

Error from the district court of Johnson county. The city of Tecumseh and others were defendants below, and judgment being rendered against tbem, they brought the cause here by petition in error. The amount sued for, and recovered, was for license moneys received by the city treasurer, for licenses issued by the city council under authority given by the criminal code. The section giving this authority is as follows: Sec. 586.

<p>Error from the district court for Johnson county.</p>

<p>This was a motion for a rehearing of the cause argued at the January Term, A. D. 1876, and reported in 4 Neb., 458.</p>

It was an indictment for murder and resulting in the conviction of the prisoner, and judgment that he be executed, he sued out a writ of error to this court. •

Error from the district court of Johnson county. It was an action for the replevin of five calves, brought by •Keebler against Iloracek. The jury found in favor of Keebler, and assessed his damages for the wrongful detention of the property at five dollars. Judgment entered on the verdict, and IToracek brought the cause here by petition in error. cited General Statutes, 780. Bloom, v. Richards, 2 Ohio State, 388.

<p>Appeal from the district court of Otoe county. Tried below before Pound, J. The case is stated in the opinion.</p> <p>cited Gen. Stat., Chap. 66, Sees. 51, 61. Laws 1875, 107. Dale v. MeJEvers, 2 Cow., 118. Parker v. Baxter, 2 Gray, 185. Isaacs v. Decker, 41 Ind., 410. Oldhams v. Jones, 5 B. Mon., 458. Smith v. Smith, 15 Kan., 290. Gwrl v. Watson, 25 Iowa, 35. Gillettv. Webster, 15 Ohio, 623. Wakeley v. Nicholas, 16 Wis., 588.</p> <p>cited Johns,n v. Hahn, 4 Neb., 139. Cooley on Taxation, 407. Blackwell on Tax Titles, 171. Gatterlin v. Douglass, 17 Ind., 214. Hart v. Henderson, 17 Mich., 218.</p>

<p>1. Practice-in Supreme Court. The only mode of reviewing in this court the judgment of inferior courts, and tribunals exercising judicial power, in civil cases, is by appeal or petition in error.</p> <p>2. -. This court will not review a decision of the county commissioners, made while acting as a board of equalization, on an agreed statement of facts, when none of the statutory steps have been taken to bring the case here.</p>

<p>Statute of Limitations: construction of. The statute of limitations must not be construed as merely raising a presumption of payment, but as a statute of repose. 1.</p> <p>--:--. To take a debt out of the statute, there must be an unqualified acknowledgment of the debt as originally due, and a promise to pay it; and if the promise is conditional, the condition must be performed before an action can be maintained on the promise. 2.</p> <p>Partnership. The act of one partner, during the existence of the partnership and within the legitimate scope of the partnership business, will bind the other partners; but, upon the dissolution of the partnership, and a notice thereof, such agency, as well as the relations of partners, cease to exist, and the authority to create new contracts is revoked, and the relation of partners to their creditors then becomes that of joint debtors. 3.</p> <p>4. -: statute of limitations. A promise by one joint debtor will not take a debt out of the statute of limitations as to his co-contractors, unless he is specially and severally authorized by them for that purpose.</p>

This was an indictment for murder found in the district court of Jefferson county. The cause was removed for trial to Thayer county, and resulted in the conviction of the prisoner. He then sued out this writ of error. cited Doyle v. The State, 17 Ohio, 222. Portis v. The State, 23 Miss., 578. Stevens v. The State, 3 Ohio State, 453. -Burley v. The State, 1 Neb., (¡96. 1 Bishop Grim. Prac., Sec. 921. Nebraska Criminal Code, Secs. 453, 456, 457, 458.

<p>Error from the district court of Gage county. The opinion states the case.</p>

Error from the district court of Lancaster county. The action was brought by the defendant in error, who was plaintiff in the district court, to enjoin the plaintiffs in error from collecting taxes levied for the year 1871, upon certain lands situated in Lancaster county. A general demurrer was filed by each of the defendants below to the petition, which demurrers were overruled by the court, and judgment rendered permanently enjoining the collection of said taxes.

<p>Error from the district court of Lancaster county. The opinion states the ease.</p> <p>cited Eyeum v. MeAllister, 33 Iowa, 375. Long v. Culp, 14 Kan., 412. Commissioners v. Chipman, Id., 532.</p> <p>cited Hunnewell v. Cass Co., 22 Wall., 464. People v. Cohen, 31 Cal., 210. Owynne v.Eiswanger, 15 Ohio, 367.</p>

Error from the district court of Franklin county. It was an information brought by Hutchinson against Ashburn before the county commissioners, setting forth that said Ashburn, who was one of said commissioners, had been guilty of gross partiality, oppression, corruption, and habitual drunkenness. The other two commissioners assumed jurisdiction, and upon a'trial rendered judgment removing said Ashburn from office. He thereupon took the cause on error to the district court.

Error from the district court of Oolfax county. The facts upon which the cause was tried below appear in the opinion. cited Moore v. Whvtosh, 6 Kan., 39. Welch v. Bryan, 28 Mo., 30. Gen. Stat., 995. cited Act relating to school lands, and Laws of 1875, 123.

<p>1. Contract: conditions of same: evidence. Where a building contract provides that the work shall be done under the direction and superintendence, and to the satisfaction of an architect, to be testified by certificate under his hand, such architect is thereby constituted sole arbiter between the parties, and the parties are bound by his certificate; but if the owner avers that such certificate was procured by collusion and conspiracy between the builder and the architect to cheat and defraud him, then evidence is admissible tending to prove such conspiracy and fraud, and that the building is not erected according to the terms, plans and specifications of the contract, or in a good workmanlike manner.</p>

Error from the district court of Douglas county. Tried -below before Savage, J. It was a re-trial of the cause, granted by this court, and reported in 4th Neb., 545. Eesulting in the conviction of the prisoner he again sued out a writ of error to this court.

Error from the district court of Butler county. Tried below before Post, J. The plaintiff in error commenced the action before a justice of the peace against the defendant for the unlawful and forcible entry into and detention of real property. The bill of exceptions shows that plaintiff offered in evidence a patent of the United States for the lands in controversy, dated March 1, 1875 and recorded May 4, 1875.

This action was brought in the district court, in Lancaster county, by the “ Regents of the University of Nebraska,” against John L. McConnell, to recover of him the sum of about $3,400, moneys belonging to the “Regents’ Fund,” which came into the hands of the defendant as treasurer of the University, under his appointment by the Regency; and which the defendant refused to turn over to the state treasurer, as required by the act of 1875, [Laws of 1875, p. 154,] abolishing…

■ Error from the district court of Nemaha county. Tried below before Weaver, J. Judgment was rendered against Nesbitt who was defendant in the action there, and he brought the cause here by petition in error. The opinion states the case. I. There is no question of negotiable paper in this action. No paper is negotiable in the commercial sense after due.

Error from the district court for Lancaster county. Tried below before Weaver, J. It was an action brought by the defendant in error against the plaintiffs in error, in the probate court of Lancaster county, to recover of the plaintiffs in error the sum of $300, and interest, on a promissory note, dated November 18, 1869. The defendant in error there had judgment; plaintiffs in error appealed to the district court.

Error from the district court of Adams county. Tried below before G-aslin, J. The action was brought upon the written instrument, set forth in the opinion, before a justice of the peace, taken on appeal to the district court and tried before a jury at the April Term, 1876. Defendant there recovered judgment for $45.00, damages and costs of suit.

Error from tfie district court of Douglas county. Ellen Olmstead, as plaintiff in the court below, brought suit to recover damages for injuries alleged to have been sustained by her in stepping into a hole in a sidewalk, on the north side of Douglas street, between Ninth and Tenth streets, in the city of Omaha. All material allegations of the petition are denied by the answer.

Error from the district court of Saline county. Tried below before Weaver, J. • It was an. action of replevin brought by the defendant jn error against the sheriff for property which had been .seized on executions and attachments -which came into the hands of the plaintiff in error, as sheriff, for levy and service issued in numerous actions against William T. Eaton, son of Emerson H. Eaton, the defendant in error, and who was carrying on the business of buying .and selling…

Tried below before Lake, Ch. J. Tbe opinion states the case. It seems almost impossible to add anything by way of argument to the plain words contained in the proviso to section IT of the civil code. The plaintiff refers to section 20 for aid, and upon demurrer to his original petition amends so as to make the averments thereof correspond with that section, and to that end, proof was taken and is set forth in the bill of exceptions.

This was an appeal from the district court of Jefferson county. Tried below before Pound, J. From tbe pleadings and evidence in the cause it appears that in 1869, Calhoun and Croxton, attorneys residing in Nebraska City, Otoe county, sent to Griggs and Ashby, at Beatrice, Gage county, a transcript of a.judgment recovered by them in tbe district court of Otoe county in an action wherein Benjamin F. Hampton was plaintiff and one James Frazier was defendant.

<p>1. Practice: undertaking in attachment:'action on. In an action on an undertaking in attachment’the petition should allege that the order of attachment was wrongfully sued out, or obtained.</p> <p>2. -: -:-. It is not enough to state in the petition that the attachment was quashed, and the property released by proceedings in error.</p>

This was an appeal from a decree rendered by Hon. S. B. Pound, sitting in the district court of Lancaster county, granting a new trial to the plaintiff, in an action before a justice of the peace wherein he was defendant. The case came before this court upon demurrer to the petition and is reported in 4 Neb., 108. A motion to dismiss the appeal was made and overruled, the following opinion being filed: Lake, Oh.

' Error to the district court of Colfax county. Tried below before Post, J. It was an action upon two promissory notes given by plaintiffs in error in part payment of a threshing machine which they had purchased from defendants in error, who sold the same upon the following warranty: “ This machine is ordered, purchased, and sold subject to the following warranty and agreement: That with good management it is capable of doing a good business in threshing and cleaning grain,…

The plaintiff in error and H. N. Cornell were defendants in the court below, and upon the trial plaintiff in error requested the court to give the following instructions to the jury, which the court refused to do, and he excepted. 1. “The court instructs the jury that every material allegation of new matter as a defense, contained in defendant’s answer, not controverted or denied in the reply of the plaintiffs must, for the purposes of the trial, be taken and considered as…

This was a suit in the district court for Jefferson county, brought by defendants in error against plaintiff in error and R. B. Wallace as partners, under the firm name of Struthers & Wallace. Tried below before Pound, J. An attachment was issued in the cause. The affidavit filed in said cause as the basis for the attachment proceedings lacked a venue; Struthers, appeared specially and made a motion to set aside, dissolve, and discharge the attachment.

Tried below before Gantt, J. The case is stated in the opinion. There are two classes of cases where damages may be sustained by a private person as the consequences of the act of a municipal corporation. First, where the corporation, in a careful manner, performs a lawful act without wrong or negligence, but by' such act private property is injured as a consequence.

Tried below before Weaver, J. The case is stated in the opinion. The position that the holder of a note secured by mortgage upon real estate must prove his claim before the administrator, is untenable. Sec. 2, Washburne on Real Property 232. Slaughter v. Foust, 4 Blackford, 379. Shirlcey v. Hanna, 3 Blackford, 403. Harvey v. Thornton, 14 111., 217. But our statute and the decisions of this court expressly authorize the foreclosure of the mortgage. See. 227 Gen. Statutes, 320.

Action brought in tbe district court of Lancaster county, Nebraska, by the above plaintiff against tbe said defendant to recover tbe sum of twenty-two thousand five hundred and twenty-four dollars and fifty-six cents, with interest from the 24th day of ¡September, A. D., 1873, for money alleged to have been received by the said city for license granted by the said city for the sale of malt, vinous and spirituous liquors within the limits thereof.

<p>Error to tbe district court for Oass county. Tried below before Pound, J. The case is stated in the opinion.</p> <p>cited 1 Greenleaf Evidence, 553, 558. 1 Parsons Contracts, 588. Predeaum v. Bwrnett, 1 C. B. (N. S.),613. Nichols v. Hail, 4 Neb., 210.</p> <p>cited Hears v. Nicholls, 41 111. 207. Leopold v. Van Kirie, 27 Wis., 152. Carter v. Blade, 46 Mov 384. Richmond v. Greeley, 38 Iowa, 666. Hilton v. Dinsmore, 21 Maine, 412. Potter v. Hopkins, 25 Wend., 417.</p>

Tried below before Lake, Oh. J. The case is stated in the opinion. If the deed from Galligher to Patton fail, the conveyances subsequent to it in the defendants’ chain of title fail, and their claim to the property in question is ended. The plaintiff objected to the admission of the deed, because the description in it did not describe-the premises in suit; and because it did not describe any property, and was void for uncertainty.

<p>Error to the district court for Cuming county. Tried below before Griffey, J. The case is stated in the opinion.</p>

This was an action upon a joint and several negotiable promissory note, signed by Lewis & Marsh and defendants in error, in their firm names, dated Lincoln, Nebraska, September 8th, 1873, for payment to order of plaintiffs of $5,500.00, at Union National Bank, Chicago, Illinois, in thirty-five days after date, with interest at twelve per centum after due. Lewis, of the firm of Lewis & Marsh, was of plaintiff’s board of directors.

Tried below before Post, J. It was an action by Turner against O’Brien to recover damages for causing the said Turner to be arrested and imprisoned on a charge of grand larceny. The jury found in favor of the defendant, and Turner brought the cause here by petition in error. To maintain an action for this injury the plaintiff must prove, First. That he has been prosecuted by the defendant, either criminally or in a civil suit; and that the prosecution is at an end. Second.

The facts in the case are substantially as follows: Tennant, the defendant in error, in April, 1874, bought of Clark & French, plaintiffs in error, the furniture of the Wyoming Hotel, in Omaha, for the sum of $7,000. He was to pay in cash at the time of the purchase $1,000. He only paid $850. He gave notes for the balance of $6,000, secured by a chattel mortgage on the goods bought.

Tried below before Post, J. The case is stated in the opinion. Under, the revenue statutes of this state the assessor does not fix the value upon all taxable property. The assessor values part and the owner part. The owner values his “ moneys and credits ” and “ stocks or shares in incorporated companies ” in every instance, except when the owner fails, neglects, or refuses to list, or to take the prescribed oath, then the assessor determines their value.

<p>1. The term “fiscal quarter,” as used in section 19, article III of the constitution, means one quarter of a calendar year, for which the legislature is required to make appropriations for the expenses of the government. The above section of the constitution has no reference to legislative appropriations for 1875 and 1876, made prior to the adoption of the constitution: it was intended solely for the guidance of future legislatures.</p> <p>2. A requisition for the salaiy of an officer should show on its face for what month or quarter and year the same was earned.</p> <p>3. All necessary expenses of the government for the years 1875-1876, should be paid out of the appropriations for such years. Unexpended balances thereof lapse into the treasury, and cannot be drawn out for expenses incurred during the years 1877-1878; nor can the appropriations for 1877-1878 be resorted to for* the purpose of supplying deficiencies of 1875-1876.</p> <p>4. Proceeds of “convict labor” uncollected for the year 1876 may properly be applied in payment of outstanding indebtedness for support of convicts incurred during that year.</p> <p>5. In the absence of a repealing act, or an act of limitation, it does not matter how long after the money provided for in an appropriation act is earned that it is applied for. As to it the act will continue in force and operation until the money is drawn from the treasury.</p> <p>6. By section 30 of the constitution of 1867, provision for the support of the government by the legislature was limited to two years. The money might not have been actually drawn during that time, but the expense must have been incurred or the salary earned, during the two years for which the appropriation was made.</p>