Volume 6 — Nebraska Reports

Tried below before Griffey, J. The facts were as follows: ^On the twentieth of November, 1874, the Grange .Company, of Cuming County, was the owner of a certain frame grain elevator warehouse, situated on ground leased by them of the Sioux City and Pacific R. R. in West Point.

<p>Application for Mandamus.</p>

<p>1. Constitutional Law: appropriations. The rule observed as to appropriations in the case of The State, ex rel. Roberts v. Weston, 4 Neb., 216, applies only to those officers whose salaries are fixed by the constitution itself, and not to those whose compensation is left to the discretion of the legislature. As to the latter, specific appropriations by the legislature are necessary to authorize their payment from the state treasury.</p> <p>2. -: Legislative appropriation. Section six of the act of February 24th, 1875, providing for a state board of immigration, is not a sufficient appropriation of money by the legislature to authorize the auditor to draw his warrant on the state treasury for the payment of the incidental expenses incurred by the secretary of the board.</p>

Tried below before Post, J. The case is stated in the opinion. - I. The facts stated in the answer, which are admitted by, the demurrer, operated as a license to defendant, and such a license becomes irrevocable when, as in this case, defendant, acting under the same, has expended a large amount of money for the purpose of enjoying such license. 2nd American Leading Cases, page 751, where -the subject is fully discussed in note. Beriek v. Kern, 14 Serg. and Rawle, 267.

Error from tbe district court of Otoe county. Tried before Gantt, J., at tbe March term 1878.

Tried below before Savage, J. The facts appear in the opinion. I. This act clearly falls within the decision of the court, in Emails v. White, 4 Neb., 353, and is unconstitutional in that regard. II.

Action to recover under section ten, Gen. Stat., 201, double tbe value of certain hogs of Emeline Baty, killed by the cars of the Atchison & Nebraska R. R. Oo. Yer-dict and judgment below in favor of said Emeline Baty, and the railroad company bring the cause here by petition in error.

Original application for injunction. The facts appear in the opinion. inter alia, read the provisions of the road law, Sections 15, 16, Gen. Stats., 954, contending that the law applied to public highways and public bridges, and not to any toll road or bridge or any private enterprise; that a toll bridge was not a public highway but strictly a private enterprise, and no authority existed under the statutes of Nebraska to aid any such enterprise by voting precinct bonds; that…

This was an action brought by Charlotte K. Turner, to restrain the city of Omaha from collecting taxes assessed upon the lands of the plaintiff, lying within the incorporate limits of the city of Omaha, but remote from the business or residence portion of said city, not subdivided into blocks and lots, and used exclusively for agricultural purposes. Also, to recover from said city certain of said taxes paid by the plaintiff.

<p>1. Arbitration.',, In an action on an award, the defendant may set up as a defense that the arbitrators considered "matters not submitted to them, or omitted to consider matters which were submitted, and may prove such matters in bar.</p> <p>2. -: evidence. Arbitrators are proper witnesses to testify concerning what matters were presented before them, and whether or not they had considered all the matters referred.</p> <p>3. Practice: insteuctions to juey : veedict. Where, from the testimony in a case, the facts are in dispute, it is error for the court to direct the jury how they shall find a verdict.</p>

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

Tried below before Weaver, J. The opinion states the facts of the case. I. If by the testimony it be found that Dunn, at the time he conveyed the land, was insolvent, this does not vitiate the transfer; the statute does not deprive a man of the power to sell or otherwise dispose of his property although he may be insolvent. Peoot v. ArmeUn, 21 La., 667. Smith v. Henry, 2 Bailey, 118.

<p>1. Practice: Bill of exceptions. Where evidence has been in- : troduced in the court below, which is not properly a matter of , record, a pariy who desires to avail himself of it in the supreme , court, must preserve the same by a bill ol exceptions.</p> <p>2.-: -Affidavits of jurors in support of a motion for a } new trial, which are not embodied in the bill of exceptions, will not be considered by the supreme court.</p> <p>3.-: Costs in cases where justice of the peace has jurisdiction. Where a justice of the peace has jurisdiction of an action, and it has been brought in any other court, the plaintiff cannot recover costs. ‘ j</p>

Ereoe from district court of Douglas county. Tried below before Savage, J. The case is stated in the opinion. I. The complaint charged' petit larceny and nothing else. The jury find the complaint to be true. There is no finding either by the court or jury that any offense other than petit larceny had been committed.

The sections of the statute cited and construed by the court, are as follows: “To levy and collect license-tax on auctioneers, contractors, * * * , dram, shops, saloons, lAquor sellers, * * * , and regulate the same by ordinance.” Subd. IY, Sec. 31, Gen. Stat., 144. * This provision was adopted March 1, 1871. At that time the following section of the criminal code was in force. Sec. 350, Ohap. 29. Revised Statutes, 1866.

It was an action brought by William A. Brown, to recover the sum of four thousand five hundred and thirty dollars, and interest from September 7th, 1874, for printing and publishing the “ delinquent tax list ” of said county, as required by the provisions of an act of the legislature of Nebraska, entitled “An act to provide relief for delinquent tax-payers,” approved February 27, 1873. Gen. Stat., 940.

Error from the district court for Hall county. Tried below before Post, J. The facts appear in the opinion.

• Appeal from the district court for Cuming- county. Tried below before Savage, J. The opinion states the facts in the case. The admission of the testimony to show the error in the entry, is incompetent and irrelevant. Where contracts have an ascertained and fixed meaning, the acts of the parties under which the contracts are made are inadmissible. Giles v. Gomstoch, 4 N. Y., 270. 1 Best on Ev., 223, and citations.

<p>1. Practice: motion for new trial. In. an action at law, in order to obtain a review of the case in tiie supreme court, tbe party-aggrieved must have presented to tbe court below, by motion for a new trial, bis objections to tbe judgment or order of tbe court, and bave obtained a ruling tbereon.</p>

This was an original application for a mandamus' against the county commissioners of Otoe county, to compel them to draw their warrant upon the treasurer of the county for the sum of $812.36, alleged to be due the relator on account of an award made in his behalf by appraisers appointed to view and assess damages accruing to the relator by reason of the laying out and opening of a public road through his premises in Otoe county.

This was au appeal from Platte county. The cause was heard below before Post, J., on demurrer to the petition, and judgment rendered against the plaintiff. The facts necessary to an understanding of the case are stated in the opiidon. S. S. McAlister, for appellant, cited 3 Washburn Real Property, 273. 1 Greenleaf Ev., Sec. 265. 6 Hill, 469. 4 Scam., 452.

This was an indictment for the murder of Henry King in Washington county on the 16 th of May, 1876. The trial before Savage, J., and a jury, resulted in the conviction of Milton of murder in the first degree, and sentence that he be executed on the 22d day of September following. He sued out this writ of error. The facts necessary to an understanding of the case appear in the opinion.

Error from the district court of Nemaha county. Tried before Pound, J. The action was originally begun in the probate court by Uhl, October 15, 1873, for the recovery of an attorney’s fee. The defendant, Banks, answered and demanded a jury November 3,1873. Jury struck and venire issued November 4,1873, and on same day the cause was continued by consent to December 2, 1873. On the twenty-ninth of November Uhl filed his motion to dismiss the action.

Tried below before Weaver, J. The two cases were substantially the same and were argued together. The actions in the court below were for the foreclosure of mortgages given to secure the payment of five notes for §70.00 each, due respectively in one two, three, four, and five years from their date. The defense was usury, and that the notes were given as a bonus to secure the loan of §500 at ten per cent interest.

Error from the district court for Lancaster county. Tried below before Pound, J. It was an action brought by High to recover $500 which he claimed to have deposited in the defendant bank, but which the bank claimed was put by the plaintiff into the bank by Eaton, its cashier, in his individual capacity, and to be used by Eaton for his and High’s benefit in purchasing margins on wheat.

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

<p>Error from the district court for Seward county. The opinion states the case.</p> <p>cited Hcurrison v. King, 9 Ohio State, 388. Ward v. Howard, 12 Id., 158. Lane v. Morse, 6 How. Pr., 394. Vincent v. People, 5 Parker, 88. Goolc, v.. Staats, 18 Barb., 407. Patterson v. Gulmcure, 2 Disn., 505.</p>

Error from tbe district court of Lancaster county. Tried before Pound, J. The facts appear in the opinion. I. The court erred in permitting the state to filé a substituted complaint. Gcmawcuy v. State, 22 Ala., 772. Revnhcurt v. State, 29 Ga., 522. Bradshaw v. Commonwealth, 16 Grat., 507. Sometimes the court permits a copy to be filed, but it must be proved to be an exact copy. This is a new and original complaint. II.

Tried below before Post, J., who rendered judgment in favor of the defendants in error setting aside and vacating a former decree against them in said court at the October term, 1875. The decree thus vacated was rendered in an action begun September 14, 1875, summons in which was made returnable “by the eighteenth day of October, A.D. 1875,” default taken, and decree entered October 20 1875. cited Bank of TJ. 8. v. Moss, 6 How., 31. Green v. Hamilton, 16 Md., 317.

Error from the district court of Buffalo county. Tried below before G-aslin, J. The action there was upon the petition of Dayton, a taxpayer, in behalf of himself and all others, taxpayers of said county, against the board of county commissioners. Clark was not made a party to the action, but in the course of the proceedings, the other defendants making default, he was admitted to defend as the real party in interest.

This action was brought in the district court of Nuckolls county, upon a petition of the plaintiff, to restrain the defendants from building bridges in that county without; letting the contract for the building of the same to the lowest responsible bidder, and also to enjoin the board from auditing and paying a large number of accounts already accrued in the hiring of hands, and for the purchase of material for the erection of bridges, except where the contract for the same…

This was an application for a mandamus to,compel the commissioners of Lancaster county to issue $20,000 in the bonds of Capitol precinct, and to place the same in the hands of a trustee to be delivered to the relator upon compliance with the terms upon which the bonds were issued.

<p>1.Pleading: reply. A reply must be made to all tbe material allegations of new matter contained in an answer, or they will be taken as true.</p> <p>2.--: ,--. evidence. When new matter'set up in an answer is denied by the reply, the burden of proof is on tlie party alleging tbe same as a defense.</p> <p>3.Chattel Mortgage: A mortgage of goods and chattels witb possession and power of sale in tbe mortgagor, is void against tbe creditors of sucb mortgagor.</p> <p>4.--: If tbe instrument on its face is one tbe law will not sanction as against creditors, it is tbe duty of tbe court to pronounce it fraudulent as to them.</p> <p>5. -: WHEN FRAUDULENT INTENT A QUESTION FOR THE JURY. Where an instrument is not void upon its face the question of fraudulent intent is a question of fact which should be submitted to the jury.</p>

, Error from the district court for Buffalo county. The facts are sufficiently stated in the opinion. The facts stated in defendant’s answer do not constitute a defense. 1. False representations to constitute fraud must be made concerning an existing fact. 2. False representations promissory in their nature are not sufficient to found an action for fraud. 3.

<p>Error from the district court for Cass county. The facts appear in tbe opinion.</p>

Error from tbe district court of Otoe county. The cause was tried in that court in 1873, before Mason, Ch. J., and a decree, enjoining the collection of a tax levied on the property of Meadville for the payment of certain bonds, entered. It was brought here by the treasurer of the county upon petition in error.

Error from the district court of Lancaster county. Tried below before Savage, J. The opinion states the case. The defendant in error claims that by virtue of section one hundred and four of the revenue law, his deeds are prima facie evidence of the facts set forth in that section. But the record shows that a substantial pre-requisite of the statute had not been complied with, viz: the taking of the oath by the assessor. What then is the condition of defendant in error?

This was an action for libel brought in the district court of Otoe county.

The plaintiffs Aultman, Taylor & Co., recovered judgment against the defendants in the probate court of York county for the sum of $438.79, and caused a transcript thereof to be entered in the district court. Execution issued, and after a levy and sale of some property there remained a balance due of $384.77.

Error from the district court of Nemaha county. The petition of the plaintiff in the court below, Higgins, states that on January 1, 1871, he sold and absolutely conveyed with full warranties, the premises described in the petition to William Adams, and took two promissory notes for the unpaid purchase money. That on April 17,1873, said William Adams died, leaving the defendants, except Edminster, his heirs, and that said Edminster was duly appointed administrator.

It was an action of replevin tried below before Post, J., wbo rendered judgment for defendant in the sum of one dollar damages and costs of suit.

Error from the district court of Fillmore county. Tried below before Weaver, J. Tbe opinion states tbe case. -I. It was error on tbe part of tbe district court to overrule tbe plea in abatement. 1. Tbe court can amend an irregularity, but cannot amend to confer jurisdiction. Uallett v. Bighters, 13 Howard Pr., 43, 46. 2. All records of judgments should «bow jurisdiction of tbe person on tbeir face. Nothing can be intended in their favor on the question of jurisdiction.

<p>1. Board of public lands and buildings,-. The state hoard of public lands and buildings have not, under the provisions of -the constitution, or the act of February 13, 1817, authority to appoint and remove officers of state institutions.</p> <p>2. Mandamus. Action by mandamus will lie to compel an officer to deliver up property of the state, held by him without any right or authority at law.</p> <p>3. Institution for the Blind. The institution for the blind is not, within the meaning of section 19, Art. Y, of the constitution, an educational institution, and therefore is within the control of the board of public lands and buildings. Gantt, J., dissenting.</p>

Error from the district court for Richardson county. Tried below before Weaver, J. The cause was begun in the county court of that county and a default entered; Dec. 4,1876, trial was had, the plaintiff in error appearing and cross examining the witnesses, and judgment was entered for defendant in error for $500.00 and costs.

Error from the district court for Lancaster county. Tried below before Weaver, J. The opinion states the case. cited 8 Cowen, 600. 6 Bo'sw., 668. 6 Johns., 502. 19 La. Ann., 180. 22 Texas, 650. 10 Minn., 216. cited Van Vleet v. OUn, 4 Nevada, 98. James v. Brooks, 6 Heisk. (Tenn.), 150. Austin v. Bainter, 50 111., 308. Lowe v. Traynor, 6 Coldw., 633. Field v. Holland, 6 Cranch, 8. Orgañn v. Ramsey, 3 Humph., 580. Blair AJ?mr. v. Dockery, 24 Wis., 502.

<p>Error from the district court of Cass county.</p> <p>cited Lessee of Muhlenb%urg,s Heirs v. Florence, 5 Ohio, 248. State v. Tomlinson, 11 Iowa, 401. McCoy v. The People, 65 111., 439. Sfeiger v. The State, 32 "Wis., 400.</p>

<p>. 1. Judgment in Criminal Cases: A judgment of an inferior court in a criminal action is conclusive, unless appealed from, or reversed on proceedings in error.</p> <p>2. -: Habeas conus is not a proper proceeding to review such judgment; nor will the court, upon such writ, look beyond the judgment and re-examine the charges on which it was rendered, or the decisions upon questions of law raised on the trial of such case.</p>

Error from tbe district court of Lancaster county. Burr, tbe defendant in error, brought suit for tbe foreclosure of a mortgage, executed by plaintiffs in error, November 1, 1871, to W. F. Cbapin upon certain real estate to secure a note of J. W. Matthewson for $250, due sixty days from date. The petition alleged the loss of the note and the assignment of the debt and mortgage to Burr.

Error from tbe district court of Sauuders county. Tried before Post, J. Judgment below was given in favor of Wiggenhorn and Green against Parmalee and Johnson, who brought the cause here by petition in error. Further facts appear in the opinion. „ The court erred in excluding the testimony offered by defendants showing the contract between the parties, and the partial delivery and payment and performance by defendants under the contract with O. M. Carter and Wiggenhorn.

Error from the district court of Richardson county. It was an action of replevin brought by the plaintiffs in error against the defendant in error for the recovery of a threshing machine which had been purchased by Uhl at an execution sale. Plaintiffs in' error claimed title by virtue of a purchase from the defendant in execution prior to the levy. Judgment below by Weaver, J., in favor of Uhl, and Robison and Maus brought the cause up by petition in error.

Error from the district court of Buffalo county. The plaintiff in error -was indicted for murder at the March term, 1876, of the district court for Kearney county. The cause was taken on change of venue . to Buffalo county, where the prisoner was tried at the March term, 1876, of that county, found guilty of manslaughter, and sentenced to imprisonment in the penitentiary for the term of ten years.

Error from the district court of Seward county. The facts are stated in the opinion. The note sued on is a negotiable instrument and assigned before due to Thomas, who held the note when the defendant Buck was garnished.

This was an action brought by the defendants in error in the county court of Lancaster county. The action was to recover $172 principal and interest, and $17.20 attorney’s fees, on a promissory note for $150, executed August 5, 1875, by the plaintiff in error, payable to the order of defendants in error. On the first day of Feb ruary, 1877, the defendant in error filed his petition in the said county court to recover the said sums of money.

Error from tbe district court of Lancaster county. Tbe opinion states tbe facts of tbe case. Tbe revised ordinances are sufficiently authenticated. Dillon Mun. Corp., 287. Bloek v. J aeksowoille, 36 111., 301. And there being no ambiguity, they will be strictly construed. MeChoskey v. Grorrwiell, 11 New York, 601. Benton v. Wickwvre, 54 Id., 226. The ordinance expressly gives the plaintiff a salary, and riot wages as the defendant contends.

Error from the district court of Lancaster county. Tried below before Pound, J. The facts appear in the opinion. Pratt, the assignor of Hartley, defendant in error; could have had no interest in the payment of the Cullen mortgage, or been damnified by its non-payment, unless he had asswmed and agreed to pay it himself when the premises wére conveyed to him, and had actually done so.

Error from the district court of Lancaster county, to which the cause was taken by change of venue from Oass county. Tried below before Pound, J. The facts are stated in the opinion. cited Sec. 15, Statutes at Large, 39, Ohap. XX. Rev. Stat., U. S., 418. Sec’s. 2,264 — 2j267. Johnson v. Towsley, 13 Wall., 72. Shepley v. Cowan, 91 U. S. 330. cited Lester’s Land Laws vol. 1, pages 34, 48 234, 278. Act July 7, 1870, U. S. Statutes at Large, 188.

Error from the district court of Gage county. Tried below before Weaver, J. The facts necessary to an understanding of the,case are stated in the opinion.

This was an action upon a promissory note, purchased by Stone and Easley, from the payee, Tercelte Kencleur. Judgment below was given by Weaver, J., against Hosford, the maker of the note, to reverse which .he brings the case into this court by petition in error. There are but three words of negotiability in promissory notes, etc., known to-our law. They are “ Order,” “ Bearer,” and “ Assigns;” without these words they are not negotiable commercial paper.

The opinion states the case. i/nter alia, contended that it was not necessary for plaintiff to have been in possession when the action was commenced, to entitle him to recover for the annual value of the use of the land. It was only necessary for the plaintiff to re-enter after the trespass was committed, to entitle him to recover. Rowland v. Rowlcmd, 8 Ohio, 40, 41.

Error from the district court of Burt county. The facts appear in the opinion. “The authorities are uniform that a deed of trust, such as those of which we have been treating, places the legal title in the trustee.” 2 American Law Register,’ 755. Anderson v. Holloman, 1 Jones’ Law, 169. Thorn-hill v. Gilmer, 4 Smedes & Marshall, 153. Sargent v. Howe, 21 111., 148. Hannah v. Carrington, 18 Ark., 85. Ooolc v. Dillon, 9 Iowa, 407. Tailor v. King, 6 Munf., 358.

Error from the district court of Platte county. Tried below before Post, J. A statement of the case appears in the opinion. This mortgage had the marks of fraud because it was general, without exception of his apparel or anything of necessity, and the mortgagor was to continue in possession and use such articles as his own, and the transaction was inconsistent with the conveyance. 1 Smith’s Leading Cases, 2d Ed., pages 34, and from 40 to 51 inclusive.

Tried below' before Weaver, J. The case is stated in the opinion. Plaintiff claims that the proofs show that he was intoxicated and drunken when the deed in question was executed. That he was still more so when the defendant, Greorge Phifer, obtained possession of the paper. That there was no delivery of the deed to defendants, and that defendants fraudulently gained possession of the same and placed it on record.

Error from the district court of York county. It was an action of replevin for a pair of mules, in which the defendant’s title was derived by purchase at a sale under execution issued upon two judgments in two actions tried before a justice of the peace, in which one Lock was plaintiff, and Wood and Button were defendants. Upon the trial below, before Gaslin, J., sitting in the district court for York county, and a jury, the court charged the jury as follows: “ Third.

<p>Practice: Transcripts of records. A transcript must show when, where, and the court before which the proceedings were had, so that it shall appear from the record that they were had before a court known to the law, and are eorcmjudice.</p>

Error from tbe district court of Eichardson county, the case being thus: Challiss, Druery & Co. obtained a judgment in the county court of Eichardson county against George Eoy and John H. Meyers, a partnership firm, doing business in Falls Cityj as Eoy & Meyers, and caused an execution to be issued and levied upon property belonging to the firm.

Error from the district court of Cass county. The cause came to this court in 1868, the judgment below being reversed, and cause remanded for a new trial. It is reported 1 Neb., 339. Maxwell’s Digest, 395. The cause was again tried before Lake, Oh. J., and resulting in a verdict in favor of Hasty, Eaton, the defendant below, brought the case up by petition in error in 1872.

Error from the district court of Lancaster county. The cause was tried before a referee, whose report was confirmed and judgment rendered by Lake, Oh. J., at the April term of said court, A.D., 1875, in favor of Frankman for the sum or $237.50. The defendants there, Furnas, Irish & Co., brought the cause here by petition in error. Further facts, necessary to an understanding of the points decided, appear in the opinion.

Error from the district court for Cuming county. The cause was first brought here in 1876, and is reported in 4 E eb., 211. A new trial resulting in a verdict against the plaintiffs, the cause was again brought up by petition in error, but there being no final judgment entered, it was remanded to the district court for further proceedings. 5 Neb., 194. Judgment being there entered on the verdict, and the cause brought to this court, it was tried during the present term.

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

Error from the district court of Douglas county. Tried below before Savage, J. The case is stated in the opinion. The petition in the court below shows that the tenant “ abandoned said premises and refused to pay any more rent for the same, or to recognize any liability thereafter to pay rent to plaintiff under said contract of leasing.” Afterwards the landlord sued and recovered the second month’s rent. This action is to recover the rent for the remaining part of the year.

Error from the district court of Richardson county. It was an action against Cameron upon a bond for stay of execution on a judgment rendered in the probate court. Judgment was rendered against him in the court below, Weaver, J., presiding, to 'reverse which he brought the cause here by petition in error. At common law there' was no such thing as stay of execution by bond or undertaking. This is an invention of modern legislation, and is., the creature of the statute.

Error from the district court of Colfax county. Tried below before Post, J. The facts of the case appear in the opinion. If the defendant had the right under the statute of the United States to hold this land as exempt from sale on execution, or otherwise, for the reasons claimed, he has waived that right by not making his claim before judgment and order of sale. Rector v. Rotten, and cases there cited, 3 Neb., 171.

This was an application for a peremptory writ of mandamus to compel the board of county commissioners of Buffalo county to levy a tax for tbe payment of a claim audited and allowed the relator by the said board.

Error from the district court of Douglas county, the' case being as follows: In May, 1874, one John T. Edgar commenced proceedings in bankruptcy in tbe U. S. district court of Nebraska, against one William Malcbow, doing business at West Point.

Original application for a mandamus to compel the county commissioners of Lancaster county to complete township organization in said county by dividing the county into towns, appointing town officers, etc., as provided by an act of the legislature entitled “ An act to provide for township organization,” Laws, 1877, 71. Further facts appear in the opinion.

<p>1. Conflicting Testimony, new trial. Where there is conflicting testimony, although the court may incline to the opinion that the result of the trial ought to have been somewhat different from that reached by the jury, this is not a good reason for setting aside their verdict.</p> <p>2. -: --. If testimony is conflicting, it is within the province of the jury to determine what portion shall be received^ and what rejected. The court may lay down rules by which the credit of witnesses may be tested, but the application of those rules should be left entirely to the jury.</p>

Tried below before Post, J The action was commenced before John N. Edwards a justice of the peace, by Charles Synder against Christian Templin, et al., for damages sustained for the alleged wrongful conversion, by the said Templins, of certain goods and chattels, claimed to belong to said Synder. October 2, 1876, the cause was tried to a jury, who returned a verdict for the Templins, and in whose favor the justice rendered a judgment accordingly.

Tried below before Pound, J., and a jury. Yerdict against Reed for $850. Judgment. Motion for a new trial overruled. Exceptions, and cause brought up by petition in error. The facts are sufficiently stated in the opinion. 1. The court could not lawfully permit the amendment in this action. Lake v. Morse, 11 111., 587. Locke v. Daugherty, 48 Penn. State, 88. Bwr v. Boss, 19 Ark., 250. Peek v. Sill, 3 Conn,, 157. Atkinson v. Glapp, 1 Wend., N. Y., 71. 2.

This was a petition in equity, filed in the district court for Platte, county, by John P. Becker and Henry B. Ooolidge on behalf of themselves and others, creditors of Lester Platte, whose claims had been presented to be approved and allowed by the county court for said county against Lafayette Anderson.

Tried below before Pound, J. It was error to render judgment in favor of Gerhardt Albers. He was beyond the jurisdiction of the court. Being dead he was but a fictitious person, and the judgment is a nullity. Ford v. Doyle, 37 Cal., 346. MeKvnlay v. Tuttle, 43 Cal., 572. Tov/ng v. Piehens, 45 Miss., 553. McCreery v. Everding, 44 Cal., 284. cited Freeman on Judgments, Sec. 153. Gregory v. Haynes, 13 Cal., 591. MeCreery v. Everding, 44 Cal., 284.

This was an original application for a mandamus to compel payment by the treasurer of the balance claimed to be due the relator on certificates of indebtedness issued by the inspectors of the state penitentiary, íd pursuance of law, to the contractor for the building of the penitentiary, and by him assigned and transferred to the relator. The total amount held by the relator was $39,507.66.

Tbe action was upon a promissory note, aud was brought by S. D. Rieman, a non-resident. During the pendency of the action, and after the issues therein were made up, tbe cause was revived in tbe name of Jennie Rieman, as administratrix. Hendrix appeared specially, and filed objections to the revivor.

The casé was tried below before Post, J., and is stated in the opinion. Undoubtedly the first attachment was void, because issued without the previous order of the judge of the court. Accordingly, the plaintiff moved the court for another attachment, presenting at the same time an amended petition and another affidavit. Upon these papers he was entitled to the order.

Error from tbe district court for Otoe county. Tried below before Pound, J. It was an action brought by Meacham against Fox, a justice of the peace, and the sureties on his official bond, for damages sustained by Meacham on account of a levy and sale of his property under an execution issued against him by Fox. Judgment below for $500 and costs was given in his favor.

Error from the district court of Johnson county. Tried below before Weaver, J. The opinion states the case. cited 1 Smith’s Leading Oases, 1111. Wood v. Steel, 6 Wall., 89. Low v. Merril, 1 Pinney, 310. Britton v. Dierker, 16 Mo., 591. Simpson v. Davis, 119 Mass., 269. Hunt v. Gray 35 New Jersey Law, 227. . An alteration in law is where the change made is Buch as to make the instrument express something different from the contract entered into between the parties.

The action there was in equity to enjoin the collection of a tax levied upon the real and personal property of the plaintiffs.

The plaintiff in error, upon an indictment for grand larceny, found against him in Buffalo county, was found guilty and sentenced to imprisonment in the penitentiary for the term of four years. Upon the trial before G-aslin, J., and a jury, the contents of a letter, purporting to have been written by the prisoner to his wife, was offered in, evidence.