Volume 7 — Nebraska Reports

<p>1. Deed: mistake in grantee's name. A mistake or abbreviation in the name of a grantee in a deed does not necessarily invalidate the deed, but such mistake or abbreviation may be explained and made certain and definite by extrinsic evidence</p> <p>2. -. ■ The habendum in a deed cannot divest the estate vested by the grant in the deed; and when it is repugnant to the grant it must be treated as of no validity or effect.</p>

Tried below, before Pound, J. The facts appear in the opinion. Where a person signs his name in blank as surety to a bond, and hands it to his principal to have completed and signed by others and handed over to the proper authority, he makes that person his agent for the whole business, and is estopped and bound by his action, without regard to any secret instructions as to any conditions on which it should be completed and filled. McCormick v. Bay City, 23 Mich., 457.

The act in question is clearly directory. BLurford v. City of Omaha, 4 Neb., 350. It clearly comes within the rule laid down in People v. Allen, 6 Wend., 486.

<p>Appeal: actions oe replevin in justice’s court. In an action of replevin to recover possession of specific property, commenced before a justice of Hie peace, and tried by a jury, an appeal may be taken from the judgment of tlie justice of the peace to the district court, without regard to the amount in controversy.</p>

It was an action of replevin brought by Allen, the defendant in error, against McCleery, plaintiff in error, to recover possession of a stock of lumber, etc., which the latter had levied upon, as sheriff, under a writ of execution, as the property of one Yan Alstine, the execution debtor. Allen claimed title by virtue of an assignment made to him by Yan Alstine, for the benefit of all the creditors.

Heard upon a demurrer to the petition before Weaver, J., who sustained the demurrer and entered judgment dismissing the case. cited Burrows v. Stoddard, 3 Conn., 160. Clark v. Skinner, 20 Johns., 465. Hartwell v. Bissell, 17 Johns., 128. Miller v. Adsit, 16 Wend., 335. Poole v. Symonds, 1 N. H., 289. Story on Bail, §§ 94, 105. Selleek v. Phelps, 11 Wis., 380. Aeker v. White, 25 Wend., 613. Thayer v>. Hutchinson, 13Vt., 504. Hunt v. Robinson, 11 Cal., 262.

Tried below before Pound, J. The case was originally brought by Doody before a justice of the peace, for trespass upon lands. Defendant justified under claim that the loeus m quo was a public road. Judgment for defendant, and plaintiff appealed to the district court.

This was an appeal from the district court of Lancaster county, being tried there before Pound, J. 1. A railroad and all its appurtenances are treated in law as one entire thing, and cannot .be taxed or sold for taxes in parcels. The Toledo & Wabash R. R. Oo. v. Oily of Lafcvyette, 22 Ind., 262. North Hampton Ooumty v. Lehigh Goal Oo., 75 Penn. St., 461. Iiilliard on Taxation.

<p>Appeal from the district court of Douglas county. Tried below before Savage, J., who rendered judgment in favor of defendant.</p>

Original application for mandamus. The constitution, by abolishing the inspectors and creating the board of public lands and buildings as their successors, did not annul the appointments made by the board of inspectors in pursuance of the powers conferred upon them by law. Const., secs. 5, 14, Art. XYI. The physician of the penitentiary is expressly by statute made an officer. Gen. Stat., 1036, 1042.

<p>Error to the district court for Saliue county. The facts appear in the opinion.</p> <p>cited Frink v. Flanagan, 1 Gilm., 35. Cutler v. Rathbone, 1 Hill, 204. Adams v. Hubbard, 30 Mich., 104. WilUams v. West, 2 Ohio State, 82. Grace v Mitchell, 31 Wis., 533. Wise v. Withers, 3 Oranch, 331. FlUott v. Piersol, 1 Pet., 340. Grumond v. Raymond, 1 Conn., 46. Gould v. Scannell, 13 Cal., 430. Wa/rner v. Hunt, 30 Wis., 200. Black v. Winterstein, 6 Neb., 224.</p> <p>cited Gen. Stat., 552. Bilbo v. Henderson, 21 Iowa, 56. Booth v. Ableman, 16 Wis., 460. Macklot v. City of Davenport, 17 Iowa, 379. Carney v. Doyle, 14 Wis., 270. Reynolds v. Sallee, 2 B. Monroe, 8. Saffel v. Wash, 4 B. Monroe, 92. Cromwell v. Owings, 7 Harris & J ohnson, 55. Wiley v. Kelsey, 9 Ga., 117. Bridges v. Nicholson, 20 Ga., 90. Harnson v. Wea/re, 4 Iowa, 13. Billings v. Russell, 23 Penn. State, 189. Moore v. Robinson, 6 Ohio State, 302. Simpson v. Hart, 1 Johnson’s N. Y. Oh., 91. Wesson v. Chamberlain, 3 Com-stock, 331. Cochran v. Boring, 17 Ohio State, 409. Newman v. City of Cincinnati, 18 Ohio, 323. Buell v. Cross, 4 Ohio, 330. Goss v. McClaren, 17 Texas, 107.</p>

Tried below before Weaver, J. The facts appear in the opinion. ¡ 1. Usury must be specially pleaded, and there must be no uncertainty with reference to the parties committing it. The answer in this cáse charges that the plaintiffs contracted for usurious interest, but does not state with whom. Unless the unlawful contract was made with the defendants, they cannot plead it in defense of this action.

Tried below before Pound, J., and a Jury. Yerdict for plaintiff there. Judgment. Motion for a new trial overruled. Cause brought up by defendant, Kennedy, upon petition in error. The facts of the case are sufficiently stated in the opinion. 1. The president of a national bank is its chief ex-' ecutive officer, and has a general supervision of its affairs — notice to him will be notice to the bank. MgCann v. State, 4 Neb., 324, and cases there cited.

Tried below before Savage, J., and a jury. Tbe case is stated in the opinion. This judgment should be reversed, because the plaintiff was only entitled to recover the value of the paid-up policy to which he was entitled, and the only evidence as to its valne proved it to be less than the amount which he owed the company. The plaintiff could not recover upon the theory of a rescission of his contract with the company, because the parties could not be put in statu quo.

<p>Attorney’s Fees: injunction. K. obtained a temporary order of injunction against D. for a certain period of time, upon executing a bond with surety in the sum of $500. No steps were taken to dissolve this injunction, and no counsel appeared for D. until the order had expired by operation of law, when counsel appeared for D., and resisted an application for another order, which was allowed upon the deposit of a certain sum of money by K., and afterwards dissolved: Held, that D. cannot recover damages for the alleged payment of attorney’s fees, in an action on the bond given upon the allowance of the first order.</p>

<p>1. Landlord and Tenant: termination of lease. When by the terms of a lease of real estate for five years, the lessee may terminate the lease at the end of either year, upon giving to the lessor six days’ written notice, such written notice must be served on the lessor, as required by the contract.</p> <p>2. -: evidence. Parol testimony is not admissible to prove the surrender of leased premises. Under the statute of frauds, such surrender can only be done by some note or memorandum in writing, subscribed by the party surrendering the same.</p>

<p>Appeal from the district court for Dodge county. Tried below before Post, J. •</p> <p>cited Ba/nk of Steubeiwille v. RLoge, 6 Ohio, 17. Chitty on Contracts, 6 Ed., 533.</p>

Tried below before Valentine, J. The facts appear in the opinion. Where set-off is allowed against a plaintiff, the indorsee of a note after maturity, for equities between antecedent parties, no set-off which arose after the .transfer will be available against the indorsee. 2 Daniel on Negotiable Instr., sec. 1,437. Davis v. Miller, 14 Gratt., 8. And the burden of proof of the date of the indorsement and of ownership is on the defendant. 2 Harrison, N. P. 1,235. 1 Greenlf.

Tried' below before Valentine, J., and a jury. Verdict for defendant. Tbe facts appear in tbe opinion. Tbe testimony offered by tbe defense shows tbat tbe transfer by J. B. Thomson, tbe payee mentioned therein, to L. Kryger, was made prior to tbe alleged sale of tbe bouse by Mr. Thompson; and tbat tbe order referred to was made nearly a year before tbe settlement between Mr. Thompson and Mr. Neligh, when they bad a settlement of thousands of dollars.

This was an action brought in the district court for Lancaster county, on the first day of June, 1877, by W. H. B. Stout against The State of Nebraska, for breaches of a contract, entered into by tbe said Stout and the board of prison inspectors on behalf of the state, for the erection of a penitentiary, on land selected and owned by the state. This contract was made June 14, 1870, under the provisions of an act approved in 1870. Gen. Stat., 1032.

Heard upon demurrer to petition before Pound, J., who sustained the same, and rendered judgment dismissing the cause for want of jurisdiction.

Heard upon a demurrer to the petition before Pound, J., who sustained the same and rendered judgment dismissing the cause for want of jurisdiction. insisted that plaintiffs were duly and legally employed, and that the services they rendered were under a contract with the state, authorized bylaw; that by act of 1867 power and authority were granted the governor: 1.

This was a case brought up by petition in error from the district court for Butler county. It was an action brought by White to recover $188.09, money alleged to have been paid for school lands of the state purchased by White, but which, as alleged in the petition, the officer acting for the state had no authority to sell.

Tried below before Pound, J., who found upon the issues joined in favor of the defendant. The opinion states the case. 1. The secretary of the interior decided against Starks for the simple reason that he had previously, as was claimed by said secretary, had a filing on lands subject to private entry, and that filing prevented him from making any other valid filing on lands wbicb were not subject to private entry.

Tried below before Weaver, J., and a jury. Yerdict for defendant. The opinion states the case. If the defendant bid off the lands at the tax sale, he bid caveat emptor, and the defendant was bound to know before he bid that the officer had done all that the law required him to do. Cooley on Taxation 522, and cases there cited.

<p>1. Practice in Supreme Court: dismissal of actions., Where judgment was rendered May 17th, 1877, and a petition in error was filed in the supreme court, December 13lh, 1877. Held, on a motion to dismiss for want of jurisdiction, that the motion must be sustained.</p> <p>2. -: -. Cases may arise where it would be proper to set up the limitation by answer; but where it appears on the face of the papers that they were not filed within the time prescribed by the statute, the defect may be taken advantage of by motion.</p>

This was a petition in error to reverse a judgment of the district court for Lancaster county, Post, J., of the fourth district, presiding. The facts appear in the opinion. cited Renard v. Sampson, 12 N. Y., 561. Baxter v. Downer, 29 Yt., 412. Reed v. McGrew, 5 Ohio, 375. Mwnford v. Wilson, 15 Mo., 540. Berry v. Bacon, 28 Miss., 318. Begg v. Jerome, 7 Mich., 145. Judah v. Trustees, 16 Ind., 56. Dexter v. Snow, 12 Cush., 594.

<p>1. County Board: powers. The board of county commissioners have no power to review, vacate, or set aside its former adjudications.</p> <p>2. -: AUDITING COMPENSATION OE PUBLIC OFFICERS. Where the compensation for services rendered for the county is definitely fixed by law, the audit of the same and drawing a war- - rant therefor, by the board, are merely ministerial duties unattended with tlie exercise of any official discretion, and therefore, in such case, the board cannot make such compensation any greater nor any less than that fixed by the law.</p> <p>3. Mandamus. The application for a writ of mandamus- must show a prior demand and refusal, and must set forth facts which clearly impose upon the respondent a duty which the law enjoins upon him as resulting from an office, trust, or station.</p> <p>4. -, If the relator sets up in his application a claim, the payment of which is not allowed by law, it is a fatal objection to a mandamus.</p>

<p>Error to the district court for Cuming county.</p> <p>cited Stewart v. Brown, 37 N. Y., 350. Howard v. Janes, 50 Ala., 67. Newton v. Howe, 29 Wis., 536. Gilmans v. Williams, 7 Wis., 329. Servanti v. Busk, 43 Cal., 238. Brown v. Harris, 67 North Carolina, 140. Badcliff v. Wood, 25 Barb., 52. Ereeman on Executions, 342. Carpenter v. Harrington, 25 Wendell, 370. Ford v. Johnson, 34 Barb., 365. Bobinson v. Wiley, 15 N. Y., 494.</p> <p>cited Sutcliffe v. Bohrmcm, 18 Ohio, 181. Gaylord, Son <& Co. v. Imhoff c& Co., 26 Ohio State, 317. Tills’ Case, 3 Neb., 261. Central Law Journal, vol. 4, p. 527. Id., vol. 5, pp. 364, 390.</p>

<p>1. Practice: error: assignment of error. On a proceed. ing in error, when the assignment is “ that the finding of the said court is against the law and the evidence,” and no specific error of law is pointed out in the motion for a new trial, and the judgment being clearly warranted, by the finding of all the issues in favor of the defendant, the only question raised is simply whether the verdict of the court, upon the facts, is supported by the evidence.</p> <p>2. Chattel Mortgage: possession of property by the mortgagor : presumption of fraud from. In a controversy between the mortgagee and creditors of the mortgagor concerning mortgaged property found in possession of the latter, evidence showing that the mortgage “ was made in good faith, and withoutintent to defraud such creditors,” is imperatively required to . overcome the legal presumption of fraud arising from such possession.</p> <p>3. -: -: --. In order to prevent such presumption of fraud in favor of creditors of the mortgagor, and the necessity of proof by the mortgagee of good faith in the execution of the mortgage to overcome it, an actual and continued change of possession of the mortgaged property is required.</p> <p>4. --: -: -. And where the mortgaged property, consisting of two billiard tables, kept by the mortgagor, a saloon keeper, in his saloon, for the use of his customers, was permitted to remain in his possession, although placed nominally in the charge of his bar-tender, and used in the business of the mortgagor; Held, That there was no such “ actual and continued change of possession ” as the statute requires to prevent the presumption of fraud as to creditors of the mortgagor.</p>

Tried below before G-aslin, J. The facts are sufficiently stated in the opinion. Where the return is made in accordance with the statute by the taxpayer, such return is conclusive as to the articles enumerated and the value of non-enumerated property. Matheson v. Town of Mazomanie, 20 Wis., 191. Ketehum v. Town of Mukwa, 24 Wis., 303. White v. Gity of Appleton, 22 Wis., 639.

<p>1. Practice: setting aside verdict. Where there is sufficient testimony to warrant a jury in finding a verdict, it will not be set aside as being contrary to the evidence simply because, in the opinion of the court, a preponderance of the testimony is against it, it being exclusively the province of the jury to weigh the evidence, and judge of the credibility of the witnesses. But the rule has no application where there is an entire failure of proof.</p> <p>2. -: -. L. .brought an action against M. for money paid by him as surety. M. in his answer pleaded payment by the conveyance of certain real estate. The testimony showed that M. had conveyed real estate to L. to enable him to sell and convey the same, and apply the proceeds on the amount due from the defendant. It also appeared that L. had failed to sell the real estate. Held, the proof failed to show payment.</p>

Tried below before Valentine, J. Tbe facts necessary to an understanding of the points passed upon by the court appear in the opinion. 1. Held: and very properly we think, that the application to transfer the jurisdiction to the United States court, came too late.

Tried below, before Weaver, J. cited Teeumseh Town Site Gase, 3 Neb., 267. Mills v. Paynter, 1 Neb., 443. Pams do Barones v. Murphy, 3 Minn., 125. Leech v. Banch, 3 Minn., 448. ¡Gastner v. Gunther, 6 Minn., 134.

Appear from Richardson county, by defendant, The State Bank of Brownville, Nebraska. As between the judgment debtor and creditor there is no need of indexing at all, except as mere matter of convenience, all must admit. As between them, all must admit that the judgment was a lien from the time of filing, whether indexed or not.

Tins was an appeal from a decree rendered in the district court for Lancaster county. Tried below before Pound, J\, who found the amount due plaintiffs to be the sum of $220.38, and that there was still to become due from the defendant Graham the sum of $10.17 per month, for each and every month yet to elapse before the stock in the plaintiffs’ association shall become of the value of $200 per share.

Tried below before Weaver, J. This plaintiff was within the statutory provisions. He was, it is true, the owner of various parcels of land in that county, but as none was subject to exemption as a homestead under the laws of this state, he stood in the same position as though he had no lands, town lots, etc. A government “homestead” is a very different thing from a “ homestead ” under the laws of this state. It is not of the same nature or quality.

Tried below before Weaver, J. The petition sets up as a ground of reversal and new trial, a fraudulent concealment of facts on the part of defendant, which, if known, would have resulted in a verdict in favor of the plaintiff instead of the defendant. Both the facts and the concealment of them are admitted by the demurrer.

<p>1.Practice: error : exceptions. When errors of law and irregularities occurring at the trial are the grounds on which' a new trial is moved, in order to entitle a party to a review of the decision of the court on the motion an exception is necessary.</p> <p>2.-: errors must be -specifically pointed out. In proceedings in error, if the petition below set forth a good cause of action, in a matter within the jurisdiction of the court., in order to obtain a review of the judgment, the particular ground upon which it is claimed to be erroneous must be specifically pointed out; otherwise it will be presumed that the judgment is right.</p> <p>3.-: special finding: waiver of. Where the court is requested under tie statute to state its findings .of fact and of law separately, and omits to dó so, if no exception be taken, this will be considered as a waiver of the demand, and an acquiescence in a general finding upon the issues.</p>

This was a petition in error to reverse a judgment of the district court for Ouming county. The case came before this court in 1877, and is reported 6 Neb., 1. At the adjourned November term, 1877, of the district court of Cuming county, held January, 1878, the case was again tried. A jury being waived, a trial was had to the court, and a special finding of the facts and the law made.

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

The action was brought there by Thrall against Hamilton and others to recover the sum of fifteen hundred dollars damages, on account of the alleged failure of said last named parties to comply with the terms of a certain contract entered into by said Thrall with one Horbach, trustee for Hamilton and others, the material portions of which are set forth in the opinion.

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

<p>1. Execution Sale. Where there is no prohibition in the statute, a sheriff, who has levied an execution upon real or personal property of the debtor before the return day of the writ, may sell such property after the return day thereof. And this rule applies to an order of sale.</p> <p>2. -: PRACTICE: MOTION TO SET ASIDE SALE. A motion to set aside a sale, or order confirming a sale of real estate, should point out specifically the errors complained of. General objections are too indefinite to be considered.</p> <p>3. -: -: -. An affidavit in support of a motion to set aside an order confirming a sale, which alleges that the attorney for the plaintiff before the sale promised to purchase the premises “ at the full amount called for in the decree, unless the same were purchased by some one else at a higher bid,” there being no allegation that any one-desiring to purchase the premises was thereby deceived, or prevented from bidding, or that the premises could be sold for a higher price than that already bid, is not sufficient to authorize the court in setting aside the sale.</p>

<p>1. Practice: final judgment. Where a demurrer to a petition is sustained in the court below, to authorize a review of the case by the supreme court, there must be a final judgment dismissing the case.</p> <p>2. -: -. The recitals in the record were as follows: “This cause coming on to be heard on the demurrer to the plaintiff’s petition heretofore filed, the court, after hearing the argument of counsel thereon, and after due consideration, sustained said demurrer and rendered judgment for the defendant and against the plaintiff, for the costs of this action taxed at $11.20:” Meld, not a judgment, but a mere recital that one had been rendered for costs.</p>

Originan application for an injunction against the commissioners of Saunders county, who it was'alleged would allow, as precinct assessors had done, certain exemptions on account of the cultivation of timber and fruit trees, under act of 1869. General Statutes, 88.

Tried below before Weaver, J. The facts appear in the opinion. The main point in the case seems to be as to the verdict and the judgment rendered thereon. The plaintiff offered at the trial of the cause below to prove that the property could be returned to defendants, and that the same was ready to be delivered to defendants on an order of the court. This evidence the court excluded and charged the jury as asked by the defendants in their second instruction.

Tried before Weaver, J. The facts appear in the opinion. The court should have sustained the demurrer to the fifth defense. The words of the answer show plainly that the indebtedness incurred by the alleged agent was the individ/ual indebtedness of the agent.

The case is stated in the opinion. It is the common law that a partnership, as such, cannot maintain an action as a partnership. A suit by initials, except where expressly authorized by statute, is a fatal description of the person. Serf & Go. v. Shulze, 10 Ohio, 264.

Tried below before Weaver, J. The case is stated in the opinion. This question brings up for construction only the sixth . section of said act. The right of way is granted completely by that section. It is the only subject matter of that section, and none of the other sections are connected by the slightest relations of context with it. It is encumbered with no limitations, no conditions, no restrictions.

This was an appeal from a decree of the district court of Buffalo county, by Gaslin, J. dismissing plaintiff’s petition. cited Sioux Oity c& Pacific P. R. v. Washington Cou/nty, 3 Neb., 43. Postlewaite v. Cleghorn, 43 111., 428. A tax founded on an assessment which, from corrupt or malicious motives, is made excessive may be enjoined in equity. Cooley on Taxation, 547. Albany da C. R. R. Co. v. Canaan, 16 Barb., 244.

<p>An Appeal to the Supreme Court 'will only lie upon a final order or decree.</p>

<p>1. Judgment: revival of. The revival of a judgment is but a continuation of the original action. Where it is sought to revive an action upon the ground that the cause has abated by reason of the death of the defendant, the only questions at issue upon such motion are, First, the death of the defendant; Second, the substitution of the administrator and heirs of the estate. In that proceeding, if the cause of action survive, the court has no authority to inquire into the merits of the case.</p> <p>2. -:-. The right to revive an action is not dependent on the discretion of the court or judge making the order, but, under the conditions and within the time limited by statute, is a matter of right.</p> <p>3. -: -. An action pending against a deceased person at the time of his death, may, if the cause of action survive, be prosecuted to final judgment; and the executor, administrator, or heir may be admitted to defend the same.</p>

Heard before Savage, J., who refused the application made by the relator for a mandamus to compel the defendant to levy certain taxes, according to an estimate made by the relator. The motion was for a writ requiring the levy of eight mills, or of arate which would raise the amount estimated to be necessary.

Appeal by defendant from a decree rendered by Pound, J., presiding in the district court for Cass county. The case is stated in the opinion.

Eeeoe to the district court for Saline county, to which the cause had been brought on error from the county court. cited Lupton v. Cutter, 8 Pick., 298. Core v. ClAsby, Id., 555. Tucker v. Clisby, 12 Id., 22. Sanford v. Bliss, Id., 116. Brice v. Masterton, 85 Ala., 483. Lightfoot v. Rupert, 38 Id., 666. Kimball v. Mulhern, 15 111., 208. Case v. Ingersoll, 7 Kan., 367.

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

, in the district court of Cuming county. The appeal was taken by The State Rank of Nebraska and Kirby & Howe, defendants, who had recovered certain judgments against Malchow, after the recording of a mortgage given by him to plaintiffs. Further facts appear in the opinion. A judgment lien takes priority over a defective or unrecorded mortgage. Van Thorniley v. Peters, 26 O. S., 471. Freeman on Judgments, Sec. 86. Hopping v. Burnam, 2 G-. Greene, 39.

Tried before Post, J. The facts of the case appear in the opinion. 1. The plea of non detinet admits the right of property in the plaintiff, and only puts in issue the detention by the defendant. Ingalls v. Bulldey, 15 111., 224. Wells v. McClemiing, 23 111., 358. Homan v. Ldboo, 1 Neb., 204. Bowie v. Biggs, 38 111., 320. Chandler v. Lvneoln, 52 111., 74. 1 Ohitty Pleadings, 488, 499. 2.

Tried below before Post, J. The court will observe that the accident or surprise of which we complain, took place after the term when the trial at law was had, and of course, after the power of the court who tried the cause had terminated. The county court could have granted a new trial within ten days by granting an appeal, but after that time it had no power to relieve.

, foreclosing a mortgage, given by Nesbitt to Bennett, and by Mm assigned to plaintiff, upon certain lands in Nemaha county. cited Nesbitt v. Campbell, 5 Neb., 429. Board v. Seoville, 18 Kan., 32. Ma/rcha/nd v. Bell, 21 La. Ann., 33. McBermot v. Bonegan> 44 Mo., 85. Estoppels in pais are not favored.

This cause came up on error from Otoe county. It was tried there before Pound, J., and a jury. The declarations of Eider as to who composed the firm are clearly inadmissible to charge McCann. Pleas-ants v. Font, 22 Wall, 116. Converse v. Shambaugh, 4 Neb., 376. McPherson v. Rathbone, 7 Wend, 216. Nelson v. Lloyd, 9 Watts, 22. Cottrell v. Van Dusen, 22 Vt., 511. Jennings v. Estes, 16 Me., 233. Lambert v. Smith, 1 Oranch O. Ct., 361. Thompson v. Richards, 14 Mich., 172.

This case came here upon appeal on part of defendants from a decree rendered by Yalentine, J., in the district court for Cuming county. The cause was heard upon a demurrer to the petition, demurrer overruled, and injunction, to restrain issuance of bonds, made perpetual.

It was an action in replevin brought by M. B. Cutler, sheriff of Cass county, Nebraska, the defendant in error, to recover the possession of specific personal property, under section 182 of civil code. Trial had before Gaslin, J., and a jury. Yerdict for Cutler, upon which judgment was rendered. The petition does not state a cause of action. Turner v. Boby, 8 N. Y., 193. Cornell v. Barnes, 7 Hill, 35. Loomis v. Wheeler, 18 Wis., 524.

Tots was an indictment against the plaintiff in error, Warren Clough, for the murder of his brother, Nathan Clough, at Seward, Seward county, on the first day of May, A.D. 1876. The cause was taken, upon a change of venue, and tried in the district court for York county, before Post, J., at a term of court held in January and February, 1877.

This was an application for a rehearing of the preceding case, made by J. R. Webster, one of the counsel for plaintiff in error. The application was made upon the following motion: And now comes the said Warren Clough, plaintiff in error, and moves the court here to grant a rehearing of the above entitled cause for the reasons, among others: .First.

This was an appeal from a decree rendered in favor of plaintiff by Post, J., sitting in tbe district court for Dodge county.

<p>1. City Ordinances. The fact that certain provisions of a city-ordinance are void, does not authorize the court to declare void those provisions which relate to the proper subject matter of the ordinance, when they are distinct and separate from those which are void and useless. In such case those provisions which are valid must stand as the law, while the others must be treated as inoperative and of no effect.</p> <p>.2. -: publication of. When one week’s publication of a city ordinance is required, one publication of such ordinance fills the requirements of the law.</p> <p>3. Liquor Selling. It is the province of the legislature to regulate the sale of malt, spirituous, and vinous liquors, and to fix the price of a license to sell the same; and the remedy for a reduction of the price so limited and prescribed by legislative authority, is by application to the legislature itself and not to the courts.</p>

Action in equity. Heard in tbe district court for Saline county, upon demurrer to tbe ■ petition, before Weaver, J\, wbo sustained tbe same and entered judgment dismissing tbe case. Plaintiffs appeal. I. It is contended that tbe commissioners having found and decided that tbe petition was sufficient, that sucb finding is conclusive. This proposition is not sustained by tbe authorities. Botton v. Jaoks, 6 Robert (N. Y.), 166. Broione v. Mayor of N. T., 3 Hun., 385.

Tried below before Pound, J. At common law, a judgment created no lien in tbe real estate of defendant. Shrew v. Jones, 2 McLean, 78.

<p>This was a re-hearing of the case reported in 6 Neb., 85.</p>

Tried below before Savage, J. The opinion states the case. The covenant against incumbrances is a personal one and is broken as soon as made. 3 Wash, on Beal Prop., 390, 421. “ If there be an incumbrance, the covenant, being in prcesenti, is broken as soon as made.” Id. 391. Catheart v. Bowman, 5 Penn. State, 317. Clark v. Swift, 3 Met., 392. Prescott v. Trueman, 4 Mass., 627. Thayer v. Clemence, 22 Pick., 490. Wyman v. Ballard, 12 Mass., 304. Tufts v. Adams, 8 Pick., 647.

Tried below before Gaslin, J. The case is stated in the opinion. 1. The defendant, John T. Brokaw, waived his mortgage security by bringing action on the promissory note secured by said mortgage, obtaining judgment thereon and failing to have an execution issued on the same, and returned unsatisfied in whole or in part, and showing that said defendant has no property whereof to satisfy such execution, except the mortgaged premises.

Tried below before Pound, J. The act is in effect an amendment to sections 83, 85, and 86 of the criminal code, and the new act does not contain the entire sections amended, nor does it repeal them, unless it is by implication of law. The evils guarded against by these salutary and wise provisions of the constitution are too obvious to require argument, to either explain or vindicate them.

Error' to the district court for Lancaster county. Tried below before- Pound, J. The opinion states the case. The pretended stay-bonds were not stay-bonds at all, certainly not such as required by statute, and being purely statutory bonds, were nullities unless made in strict conformity to the statute directing the same.

It was an action upon a promissory note given by McWilliams, as principal, and Patten, as surety, to one Ira D. Bishop, and by him assigned to Bridges. The cause was tried before Pound, J., who rendered judgment in favor of Bridges, and McWilliams, the defendant there, brought the cause up by petition in error. The case shows that Daniel A. Bishop never had a homestead entry, neither was he ever a resident of this state.

' It was a suit in equity, the plaintiff, Brown, alleging fraud on the part of Waters in the sale of certain personal property,.and praying that certain notes and mortgages given in payment of said property be canceled, and that said defendants, Waters and North, to whom it was alleged the notes of plaintiff to defendants were sold and assigned before due, be enjoined .from prosecuting any suit brought on said mortgages or the notes secured thereby.

The action was brought by Bogue, against Morgan, Greene, and Millard, to set aside an assignment' made by Morgan to Greene for the use of Millard of certain personal property therein described. The cause was heard upon a demurrer to the petition, before Savage, J.; demurrer overruled and defendants standing on their demurrer, a judgment was rendered, declaring the assignment fraudulent and void as to Bogue.

It wag an action against Wright and Lawther, brought by the Greenwood Warehouse Company to recover the value of certain flax seed, alleged to have been converted by them. No service was had uponLawther. The Company had judgment below, before Pound, J., and Wright, the defendant there, brought the cause here upon a petition in error.

This was an appeal from a decree rendered by Savage, J., in the district court for Douglas county. The substantial facts in the case appear in the opinion. . I. The law of partnership gives the plaintiff peculiar rights; and he has also the additional rights and equities of one standing in a relation of trust and confidence.

Appeal by plaintiff from the district court of Washington county. Tried below before Savage, J. The opinion states the case.

This was an appeal from an order made by Valentine, J., confirming a sale of certain real estate under a decree of tbe court. cited civil code, sections 493, 497, 510. Freeman on Executions, § 286. Eorer on Judicial Sales, § 677. Harrison v. Rapp, 2 Blackf., 1. Tyler v. Wilkinson, 27 Ind., 450. cited Rector v. Rotton, 3 Neb., 177. Koehler v. Ball, 2 Kan., 161. White Crow v. White Wing, 3 Kan., 276.

This case came up from Cuming county. Heard there upon a demurrer to the petition before Yalentine, J.; demurrer sustained and cause dismissed. Plaintiff appeals. I, Paragraph 10 in plaintiff’s petition was improperly struck out, for the facts stated therein are essential to the plaintiff’s title to entitle him to maintain his action and obtain relief.

Tried below before Yalentine, J. The action was originally brought in the probate court, to recover on a promissory note of $60. Plaintiffs had judgment there, and defendants appealed to the district court. In the district court the defendants set up a counter-claim for $350. The jury returned a verdict for defendants, and judgment was rendered against the plaintiffs for costs.

Original application for mandamus. 1. The county court is a court of record and, except in real actions, has a general jurisdiction, but limited. The county court has a seal, as the 20 th section of the probate act requires all writs to be sealed, which is all the statutory requirement for the district court to have a seal. (Civil Code, § 64.) 2.

<p>Appeals from Justices of the Peace. The statute specially provides that a judgment given in the absence of a party, sued and served with process in a justice’s court, may be set aside, and a trial had in which the defendant can set up all his defenses ; and in such case an appeal will not lie to the district court until after the proper motion shall have been made to set aside such judgment.</p>

Tried below before Weaver, J. I. The judgment rendered in the court below was a good and valid judgment. The statement in the docket that judgment was rendered in favor of the plaintiff, there being but one defendant, sufficiently shows that judgment was rendered against the defendant. ALdrieh v. Maitland, 4 Mich., 205 Fish v. Everson, 44 N. Y, 367. Story v. Kimball, 6 Verm., 541. Little v. Bid-well, 27 Texas, 688. Fimnagan v. Manchester, 12 Iowa, 521.

Tried below before Savage, J. The opinion states the facts of the case. I. Negligence cannot be presumed, but must be proved. Shearman & Redfield on Negligence, Sec. 12. To get out of a car while in motion is negligence. Lucas v. Tanmton P. P. Go., 6 Gray, 64. Riding on the platform is negligence. Riggins v. W. 7., etc., P. B. Go., 2 Bosw., 132.

The court below made the injunction perpetual, and defendants appealed. I. If in this levy to pay interest on bonded indebtedness, there should be found some excess, this will not vitiate the whole tax — the good can be separated from the bad by computation. Frazer v. Seibern, 16 O. St., 615. Obryne v. Mayor Savannah, 41 G-a., 331. OKcme v. Treat, 25 111., 458. Brisco v. Allison, 43 111., 291. City of Ottawa v. Barney, 10 Kan., 270. State v. Allen, 43 111., 456.

This was an appeal from the district court of Lancaster county.