Volume 8 — Nebraska Reports

Error from Washington county district court. Tried below before Savage, «J. The cause of demurrer is for the reason that the complaint did not state facts sufficient to constitute cause of action against the defendant. By the demurrer the defendant admits that the facts and allegations in the petition are true.

Tried below before Pound, J. The case is stated in the opinion. No exception was taken at the time the order of confirmation was made, deed Was executed same day and filed by the purchaser, Curson, for record. Curson had no notice of the motion filed by defendants to open the confirmation. This was error. Williams v. Cummins, 4 J. J. Marsh, 687. JEckstine v. Calderwood, 34 Cal., 658. Lysen v. Bremer, 13 Iowa, 461. Osborn v. Cloud, 21 Iowa, 238. Cline v. Green, 1 Blackf., 53.

<p>Error to the district court for Jefferson county. Tried below before Weaver, J. The facts appear in the opinion.</p> <p>cited Austin v. Bums, 16 Barb., 643. Edwards on Bills, 136. Sam-stag v. Conley, 64 Mo., 476. Bank of Trenton v. Cay, 63 Mo., 33. 1 Parsons on Notes and Bills, 37. 2 Id., 117. Nicholson v. Bank, 3 8. L. E., 953. Woods v. North, 84 Penn. State, 407.</p> <p>cited Sperry v. Horr, 32 Iowa, 184. Stoneman v. Byle, 35 Ind., 103. Gaar v. Louisville Banking Company, 11 Bush., 180. Dietrich v. Baytir, 23 La. Ann., 767. Zimmerman v. Anderson, 67 Penn. State, 421. Bobinson v. Lair, 31 Iowa, 9. Arnold v. Bock Biver Co., 5 Duer, 207. Dinsmore v. Duncan, 57 N. Y., 573. White v. Smith, 77 El, 351. Kirk v. Dodge County Mutual Insurance Co., 39 Wis.., 138. Collins v. Bradbury, 64 Me., 37. Daugherty v. Berry, 38 Ind., 15.</p>

<p>1. Practice: error: eiisai, order. An order of a judge of a district court dissolving a temporary injunction is not final, but interlocutory merely, and insufficient to support a petition in error before final judgment in tbe action.</p>

<p>1.Injunction. Where public officers are proceeding under a claim or color of right to impair either private or public rights, an injunction may be granted to restrain them.</p> <p>2. -: who mat maintain. Tax payers of the proper county may maintain an action for themselves and all other tax payers of the county, to restrain the county commissioners from an illegal exercise of their powers to the injury of such tax payers.</p> <p>3. -: relief granted. To entitle a party to such relief, it must appear that his rights will be greatly or irreparably affected by the acts sought to be restrained, and the right must be clear and the remedy at law inadequate.</p>

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

Error from Lancaster county district court. Tried below before Pound, J. cited same' cases as those by plaintiff in Heard v. Dubuque Bank, ante p. 10, and also 1 Parsons Notes and Bills, 803. Fraliek v. Norton, 2 Mich., 130. Ayrey v. Fearnside, 4 M. & W., 169. Goolidge v. Buggels, 15 Mass., 387. Our statute says all promissory notes drawn for any sum or sums of money certain, shall be negotiable.

Original application for mandamus. The language of the constitution is so explicit we can hardly conceive how there could be any misconception or disagreement as to its application, that all moneys arising under a general law, whether derived from fine, penalty, or license, shall go to the county fund, and that all moneys arising under, and by virtue of any city ordinance passed within the scope of the city’s power, and not repugnant to any general law, shall go into the…

Error from the district court for Douglas county. Upon a trial of the cause in that court a verdict in favor of the plaintiff for $2,847.50, was returned into court, and defendant moved to set the same aside and for a new trial.

<p>1. Fees of Sheriff for boarding prisoner. Under the act of 1877, to amend Section. 5, of Chapter 19, of the Revised Statutes, authority is given the county commissioners to fix the compensation of the sheriff for boarding prisoners at such sum as they may deem just and proper, not exceeding seventy-five cents per day, nor more than three dollars per week when the prisoners are confined more than one week.</p>

Error from tbe district court of Lancaster county. Tbe opinion states tbe case. 1. Tbe payment of tbe judgment by tbe defendant in error, wbo was one of tbe parties thereto, extinguished it, and bis only remedy was by action against Taylor.. Bank of Saline county v. Abbott, 3 Denio, 181. Ontario Bank v. Walker, 1 Hill, 652. Breston v. Stall-worth, 37 Ala., 402. White v. Brown, 5 Dutch, 307. Briley v. Sugg, 1 Dev. & B. N. C. Eq., 366. Wyman v. Davenport, 9 Mass., 138.

Error from the district court for Dodge county. Heard upon demurrer to the petition before Post J. Demurrer sustained. Cause brought up by petition in error. cited Pettigrew v. The Village of Evansville, et ah, 25 Wis., 223. Butler v. Peck, 10 Ohio St., 334. Tootle v. Clifton, 22 Ohio St., 247-253. High on Injunctions, Sec. 498, 500-510. Washburn on Easements, 353, et seq. Kauffman v. Griesnier, 26 Penn. St., 407. Martinv. Piddle, Id., 415. Martin v. Jett, 12 Louisiana, 501.

<p>Appeal from Washington county.</p> <p>cited den. Stat., p. 98. Bicharás v. Kountze,£ Neb., 200. Philo v. Butterfield, 3 Neb., 256. Cheney v. Woodruff, 6 Neb., 151. Jenness v. Cutler, 12 Kan., 500, 512.</p>

I. The authority for the treasurer to sell plaintiff’s real estate for these years, and these whole proceedings, if we are correct in our conclusions, must be based on the sale of 1871, made in September, 1872. Now what are the facts as disclosed by the testimony of the case ? Briefly recapitulated they are: 1. There is no assessment for the year 1871, and consequently no power to levy a tax. 2.

Error from Lancaster county. Two points were especially relied on in the court below. 1. That the petition does not show that the state is the real party in interest. 2. That the petition does not show that the money was deposited pursuant to any law or authority. Hpon the first point we say: The defendants are not in a position on this demurrer to contest this point.

Error from the Lancaster county district court. 1. Where the civil action is based upon acts which constitute a crime under the laws of the state, no punitive damages can be allowed in the civil action. Austin v. Wilson,A Cush., 273. Fay v. Parker, 53 N. H., 342. Tabor v. Hutson, 5 Ind., 322. Nolsaman v. Picket, 18 Ind., 350. Humphries v. Johnson, 20 Ind., 190. 'Cherry v. McCall, 23 Ga., 193. Southwick v. Ward, 7 Jones (N. C.), 64. Freese v. Trip, 70 111., 496.

Error from the district court for Otoe county. The case is stated in the opinion. Payne was defendant below and, judgment being rendered against him, brought the cause up by petition in error.

<p>1. Indictment for Murder: proop. To justify a conviction • under an indictment for murder, it must be proved either that the accused personally committed the deed, or else was present at its commission, aiding and abetting therein, or, in other words, was a principal in the first or second degree.</p> <p>2. -: -. But facts showing that the prisoner was accessory only, whether before or after the fact, will not warrant a conviction under an indictment for murder.</p> <p>3. Admissions of Prisoner. When the prosecutor depends upon tlie admissions of the prisoner to establish guilt, if they be reconcilable, and none are disproved, they must he taken all together.</p> <p>4. Principal in felony: presence at its commission. Evidence merely showing the accused to have been present at the commission of the felony, without more, is not sufficient to make him a principal therein.</p> <p>5. Error: evidence: motion eor new trial. When the error complained of concerns the admission or rejection of testimony on the trial, the record must show that the alleged error was specifically assigned in the motion for a new trial. And it is not enough merely to allege — “Eor errors in the ruling of the court in allowing evidence objected'and excepted to by the defendant.”</p> <p>6.-: improper conduct op counsel. If it be assigned for error that “the prosecuting attorneys improperly conducted themselves in the argument of the case to the jury,” to the prejudice of the prisoner, the record must show that the particular matter complained of'was brought to the attention of the court below, and was made one of the grounds of complaint in the motion for a new trial.</p> <p>Note. — -By statute, in various states, the common law rule requiring a prior conviction of the principal has been relaxed, and an accessory may be indicted or tried without averring or proving such conviction. People v. Bearss, 10 Cal., 68. 3 Greenleaf E v., g 46.</p> <p>By the Ohio Crimes Act, from which section one of the Nebraska Criminal Code of 1873 is taken, aiding, abetting, and procuring a crime to he committed is made a substantive, independent offense, not in any way dependent for its punishment on the conviction of the principal offender. Noland v. The State, 19 Ohio, 131. — Hep.</p> <p>7. Instructions to jury. Instructions to the jury must be based upon and be applicable to the evidence; and it is error to instruct the jury that they may find a material fact, of which there is.no evidence from which it may be legally inferred. .</p> <p>8. Confessions: facts brought,to light by. Any circumstance tending to establish the prisoner’s guilt may be proved, although it was brought to light by an admission of the prisoner, inadmissible, per se, as having been obtained by improper influence.</p> <p>9. Separation of jury. The court may, even in a capital case, permit the jury to separate during the adjournments of court, up to the final submission of the case to them. But when permitted to separate they should be admonished by the court as to their duty.</p>

Original application for mandamus. An alternative writ was granted at the April Term, A.D. 1878, and the cause being continued to this term, was submitted on the pleadings.

<p>1. Practice in Supreme Court. On a motion to dismiss a cause out of the supreme court, the sufficiency of the assignments of error in the motion for a new trial will not be considered.</p> <p>2. Bill of Exceptions. "When a bill of exceptions is properly-presented to a judge for his signature within sixty days from the rising of the court, it is no cause for dismissing an action that the bill was signed after the expiration of sixty days from that time.</p> <p>3. -. When it does not appear at what time a bill of exceptions was presented to a judge for his signature, it will be presumed to have been presented within the period required by the statute.</p>

<p>Practice: mandamus. An application for a mandamus, verified upon information and belief, where there is no appearance on the part of the defendants, is sufficient cause for refusing either a peremptory or an alternative writ. The motion for the writ should be made upon an affidavit setting forth the facts on which it is based. The State, ex rel. Roberts, v. The Mayor, 4 Neb., 260, adhered to.</p>

Error from the district court of Dodge county. The facts appear in the opinion. The law is well'settled that where advances have been made on the strength of a subscription, before notice of a withdrawal, a legal liability is incurred, and cannot be avoided, even though the promise to pay be not in writing. General Statutes, 393. Johnson v. Wabash College, 2 Indiana, 555. McAuley v. Billmger, 20 John., 89. 1 Parsons on Contracts, 453. Harrison v. Bike, 10 Indiana, 140.

Error, from Lancaster county district court. The facts appear in the opinion. ' It is admitted that when a bank pays out money through mistake that it can, under ordinary eircumstanc'es, recover the same back.

Error from the district court for Adams county. It was an action of replevin brought by Steinan for the recovery of the possession of a threshing machine, and the horse power connected therewith. The property had been sold by Aultman, Taylor & Co. to one Peter Deiken, a resident of Adams county, for the sum of $710, and notes of Deiken taken in payment thereof.

<p>1. Corporation: liabilities or stockholders; Where the president and a majority of the board of directors of a corporation fail to make and publish the notice required by the statute, of all the existing debts of the corporation, the stockholders will be jointly and severally liable for all debts contracted by such corporation, while the officers are thus in default.</p> <p>2. -: rights or stockholders. One or more of the stockholders of a corporation may compel its officers, by mandamus, to make and publish the statement required by the statute.</p>

This was an .appeal from the district court of Otoe county. The facts appear in the opinion. citing the case of Beet v. O’Brien, 5 Neb., 360, contended that the fact of ownership of personal property at the time the tax became delinquent must be pleaded, and that it had not been pleaded in this case. The plaintiff must allege some fact or facts which, if admitted by demurrer or otherwise, would justify the court in decreeing the sale void.

This was an application for a peremptory writ of mandamus commanding the defendants to lay out and establish a ditch or drain for the purpose of draining certain lands described in the application, in accordance with the authority vested in the defendants by the provisions of an act entitled “ An act to drain marsh or swamp lands,” approved March 8,1873. Gen. Stat., 1057. cited Cooley on Taxation, 16. French v. Teschemaker, 24 Cal., 518. Buncombe v.- Prindle, 12 Iowa, 1.

Error from Saunders county district court. It was-, an action brought by McMillan against Lynam and Miley, for malicious prosecution, in causing said McMillan to be arrested upon a warrant issued by a justice of the peace, charging him with the crime of burglary. There was a trial by a jury1 and verdict in McMillan’s favor for $275. Motion for a new trial overruled. Exceptions. Cause brought up upon petition in error. Further' facts appear in the opinion.

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

<p>Error, from the district court for Dodge county. The facts are sufficiently stated in the opinion.</p>

<p>1. Practice: within what time proceedings in error must be commenced. By the act of the legislature, approved February 15th, 1877 [Laws, 1877, p. 14], entitled, “An act to amend section one of an act entitled, ‘ An act to amend section five hundred and ninety-two of the code of civil procedure, approved February 24th, 1875,’ ” one year is given from the rendition of the judgment, or the making of the final order complained of, within which to commence proceedings in error thereon. And this act applies to all judgments or final orders . entered after it took effect.</p> <p>2. Appeals from Judgments of Justices of tlie Peace: piling transcript in appellate court. The judgment in question was rendered by a justice of the peace on the 14th of April, 1877. The statute in force at this time-regulating appeals in such cases required the transcript from the justice’s docket to be filed in' the appellate court by the second day of the next succeeding term. [Gen. Stat., 686]. Before the transcript was filed, and on the first day of June following, the act approved February 19th, 1877, entitled “ An act to amend section one thousand and eight, etc., of the code of civil procedure,” took effect, by which the transcript was required to be filed within thirty days from the rendition of the judgment. Meld, that this statute was inapplicable to the appeal in question, and that it was properly perfected under the law as it stood wlion the judgment was rendered. Held further, that even if this act were applicable, still as section 1011 of the code had not been changed, a failure to file the transcript, unless continued beyond the second day of the next succeeding term, could not prejudice an appeal otherwise regularly taken.</p>

<p>Practice: proceedings in error: when deemed “commenced.” . A proceeding in error is not to Be deemed “commenced” within the meaning of section-592 of the code of civil procedure, when personal service can he obtained, until a summons is issued which shall he duly served, as the statute directs.</p>

Error from the district court of Lancaster county. The facts appear in the opinion. cited Wharton on Agency, sections 71 and 72. Story on Agency, sec. 244. Wedderspoon v. Rogers, 32 Cal., 571. Boorman v. Mills $ Go., 35 Cal., 119. White v. Brown, 14 How. Pr., 282. Witherspoon v. Van Dolar, 15 How. Pr., 266. Starlde on Evidence, sec. 32. Deshon v. Merchants Ins. Go., 11 Met., 209. Miller v. Parker, 2 Met. (Ky.), 616. Stanton v. Miller, 58 N. Y., 203.

<p>1. License Moneys: where they belong. Under See. 5, Art. Till of the Constitution of 1875, all moneys arising from licenses granted in cities of the second class for the sale-of malt, spirituous, and vinous liquors, belong exclusively to the common school fund of the cities respectively in which they are collected.</p> <p>2. -: constitutional law. The act of the legislature, entitled “An act to legalize the collecting or receiving and expending moneys collected or received by virtue of any levy made by any city of the second class, or incorporated town, upon dram shops, liquor dealers, or saloons, for a license tax, or a license for the sale of malt, spirituous, or vinous liquors, or intoxicating drink, in cities of the second class, or incorporated towns,” [Laws 1877, p. 171], being repugnant to Sec. 5, Art. VIII of the Constitution, is void.</p>

Error from the district court for Adams county. It was an action on a promissory note for $700, given by William L. Smith & Co., dated June 15, 1874. Judgment having been rendered against him, Smith brought the cause up by petition in error. • Further facts appear in the .opinion.

This was an appeal by defendant from a decree rendered against it in the district court for Douglas county, directing said defendant to deliver np certain school district bonds issued by the plaintiff, and placed in the hands of R. G-. King & Co.,bankers at Stanton, Neb., and by them delivered to defendant. These bonds are negotiable and subject to the law of commercial paper.

<p>Error from the district court for Butler county. The facts appear in the opinion.</p> <p>cited Bump on Fraudulent Conveyances, 242. Mmroe v. May, 9 Kan., 466. Bobb v. McBride, 28 Iowa, 386. Cook v. Blaine, 37 Ala., 350. Brewer v. Granger, 45 Ala., 580. Morris v. Tennent, 56 Ga., 577. Fogg v. Fogg, 40 N. EL, 285.</p> <p>cited Bowker v. Collins, 4 Neb., 494. State Bank v. Carson, Id., 498. Charles v. Lambertson, 1 Iowa, 439. Christy v. D¿er, 14 Iowa, 438. Elston v. Bobinson, 23 Iowa, 208.</p>

<p>Constitutional Law.- The act of February 2, 1875, entitled “ An act authorizing school district No. 56 of Richard son county to issue bonds for the purpose of erecting a school building, procuring a site therefor, and setting aside funds to pay the same ” [Laws, 1875, p. 281], being repugnant to Sec. 1, of Art. VIII of the constitution of 1866, is void.</p>

Error from the district court of Platte county. The facts appear in the opinion. 1. The objection of defendant as to the regularity of the appointment of Early as deputy treasurer of plaintiff Kummer, and that the decease of Platt made the distress after his death for taxes delinquent in his life-time void, have been settled by the judgment of this court in this case. Hedman v. Anderson, 6 Neb., 392.

Error from the district court for Adams county. The opinion states the case. I. Where there is no joint purchase or joint incurring of debt, hut a purchase by one to whom alone credit is given, a subsequent joint interest in the property purchased and in the business and profits depending upon it, carries no liability for the original debt. Parsons on Contracts, 172. Story on Partnership, 248, sec. 134. Sylvester v. Smith, 9 Mass., 119-121.

Error from tbe district court for Gage county. Tbe case is stated in tbe opinion. Tbe defendants, county commissioners, claim tbe property as tbe property of Gage county, and under the pleadings tbe burden was on them to show that fact, but no evidence was introduced wbicb would' show a dedication of tbe blockto tbe public. A dedication of a block to public uses can only be made by tbe owner of tbe property. Hoole v. Attorney General, 22 Ala., 190.

Error from tbe Lancaster county district court, being brought there by appeal from justice’s court. Scoggin obtained judgment by default. Mulhollan moved to set aside default and judgment. Motion denied, and he brought the cause up by petition in error. contended that defendant in error not having complied with orders of the court requiring him to attach exhibits to the petition, that Mulhollan would have until the next regular answer day to file answer. G-en..

k Error from the district court for Lancaster county. The facts are fully set forth in the opinion. 1. Declarations of a cashier made in the course of business of the bank, and pertinent thereto, are admissible against the bank. Merchants Bank v. Rudolf, 5 Neb., 540. Drew v. Kimball, 43 N. H., 282. Glaflin v. Farmers Bank, 35 Barb., 540. 2.

Error from the district court of Richardson county. The opinion states the case. 1. A party is required to make out a case by his pleadings, and not leave it to .conjecture or inference. And where the language of a pleading is doubtful in its meaning, the most unfavorable construction must be adopted against tbe pleader, as he is presumed to state his case most strongly in his own favor. Lemon v. Stevenson, 86 111., 49.

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

<p>1. Action against State. No action can be maintained on claims against the state which have not been presented to the auditor for adjustment. The State v. Stout, 7 Neb., 89, adhered to.</p> <p>2.--: authority or attorney general. Where the petition fails to state a cause of action against the state, the assent of the attorney general to a judgment thereon will not aid the judgment.</p>

<p>Corporations. A corporation is liable the same as a natural person for the tortious acts of its servants or agents in the course of their employment. But to make a corporation liable for such acts they must be committed in the course of the agent’s employment, or connected with the transaction of tl^e business of the corporation.</p>

The case is stated in the opinion. I. A person who bids off property at a foreclosure sale becomes a quasi'party to the foreclosure suit, so as to subject himself to the jurisdiction of the court; and on proper application in the action, the court will make an order to compel him to pay in the amount of his bid. Ogelvie v. Richardson; Atkinson v. Richardson, 14 Wis., 157-8. Readrick v. Watkins, 8 Humph., 520.

Error from the district court of Douglas county. We contend that this action could be maintained, even if the case of Wren v. Bemis had already been decided in favor of Wren, for under the facts set forth in the petition, Bemis was entitled to possession without reference to who held the legal title. Ereeman on Executions, sec. 475. Wetherbee v. Dunn, 36 Cal., 157. Duse v. Clark, 34 Cal., 664. Maynev. Jones, 34 Cal., 483.

Error from the district court for Lancaster county. The action there was brought by the State National Bank against the plaintiffs in error and defendants in error, upon a draft drawn by Lincoln, one of the defendants in error, upon the plaintiffs'in error, endorsed by Lowrey, Lincoln & Co., and cashed by the bank.

Action in the district court for Lancaster county upon two promissory notes, one being for $2,000 and one for $3,000, executed by 8. McConiga, ¥m. O. Lincoln, W. E. Chapin, and McConiga & Lincoln. The defense to the action is set forth in the opinion. Upon the issues presented the jury returned a verdict for the defendants, and the plaintiff brought the cause up by a petition in error.

Error from the district court for Lancaster county. The case is stated in the opinion. 1. The court erred in its instruction to the jury and in not instructing the jury as to the legal effects of the construction contract, as requested by plaintiff in error. Beatty v. Gates, 4 Ind., 154. Myer v. Midland P. B. B., 2 Neb., 339. Arctic Pire Ins. iJo. v. Austin, 69 N. Y., 470.

The case is stated in the opinion. 1. The note of a married woman given during coverture (except to improve her separate estate) is absolutely void, such note cannot be recovered on even after death of husband. Thomas v. Passage, 54 Ind., 106. Kantrowitz v. Prather, 31 Ind., 92. Sharpe v. Clifford, 44 Ind., 346. 2.

Tbis case came up from Richardson county. It was an action of replevin brought by the plaintiff in error against the defendants in error, for the recovery of a threshing machine which had been purchased by Uhl at execution sale. The case came before this court at the October term, 1877, on exceptions by Robison and Maus, to the refusal of the district court to give certain instructions to the jury on the trial there.

The plaintiff in error was county clerk of Stanton county, and as such made out the tax-list and duplicate thereof for that county for the year 1877.

Error, from the district court for Douglas county. The opinion states the case. 1. The charge on the subject of warranty is liable to no objection. Morrill v. Wallace, 9 N. H., 115. Hahn v. Doolittle, 18 Wis., 196. Randall v., Thornton, 43 Me., 226. Smith v. Justice, 13 Wis., 600. Frey v. Vanderhoof, 15 Wis., 397. Boothby v. Scales, 27 Wis., 627. Wilbur v. Cartright, 44. Barb., 536. Willard v. Merritt, 45 Barb., 295. Beals v. Olmstead, 24 Vt., 115.

<p>County Seat: mandamus. At a special election held in the several precincts of Cass county on the fourteenth day of May, 1878, for the purpose of relocating the county seat of said county, the returns made to the county clerk were canvassed hy him and two disinterested freeholders, etc., of said county, summoned hy him for that purpose. From which canvass and the return thereof, filed in the county clerk’s office, it appears that there were 2,597 votes cast at said election, that 1,061 votes were for Plattsmouth (the present county seat), that 1,538 votes were for places other than Plattsmouth. Relation for peremptory mandamus against the defendants requiring them to call a second election for the relocation of said county seat on the ground that 150 illegal votes were cast at said election in Plattsmouth ; that as all of the votes oast in Plattsmouth were against relocation, except 18; that deducting 132 votes from all those cast against relocation would leave more than three-fifths of all the votes cast at said election in favor of relocation, and that no one place had received a majority of three-fifths. Held, 1. That it was not the duty of the board of county commis-" sioners to canvass the vote in such cases. 2. That no power was given by the statute to the canvassers to reject or throw out votes for the reason that persons not resident electors had voted at such election. 3. That mandamus would not lie against the county commissioners, they not being in default.</p>

<p>Motion to dismiss, proceedings in error.</p>

This was an appeal by defendant from an order confirming the sale of real estate in the district court of Washington county, upon a motion to dismiss which the following opinion was filed. Maxwell, Ch. J. Certain real estate of the defendant was sold at judicial sale and the sale confirmed in vacation. The defendant appeals to this court.

Error from the district court for Otoe county. The facts are fully set forth in the opinion. The word “ defense” as used in the code, secs. 99, 100, must include partial as well as complete defenses, and the defendant should be prohibited from giving in evidence any new matter, either as a complete or partial defense, unless such matter had been set up in the answer. The court can only adjudicate upon the case made by the pleadings. School District v. Shoemaker, 5 Neb., 36.

Error from the District Court for Douglas county. Upon motion to quash bill of exceptions, George W. Ambrose, for defendants, appellees, cited — Mulkr v. Bhlers, 1 Otto, 249. Hill v. Bassett, 27 Ohio'St., 597. Sherlock v. Bank, 53 IncL, 73. Logansport Gas Light Co. v. Davidson, 51 IncL, 472. Higgins v. Malroney, 50 Cal., 444. Nixon v. Fhelps, 29 Yt., 198. Justice v. Harrington, 6 G-a., 578.

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

It is tbe universal rule of law, that where coercive measures become necessary for the collection of the revenues, they shall be first directed to personalty, and the real estate on which the tax is imposed. shall not be resorted to until the personal property is exhausted; and the duties of the officers in the collection of the revenue being prescribed in direct and positive terms, all other modes are excluded. Sioux City and Pacific R. R. Co. v. Washington Co., 3 Neb., 24.

Error from the district court of Dodge county. The facts are given in the opinion. The proceedings in the case were not nullities, and the defendant in error having invoked the jurisdiction of the court, concealing the fact of his minority until after verdict, could not then avoid the consequence of refusing the offer of judgment.

Action on an official bond of the defendant in error, sheriff for Dodge county, to recover for a personal injury. Demurrer to the petition heard and sustained by the district court of Dodge county, and cause removed here by petition in error. 1. That an officer is liable for his acts done colore officii we think is settled by the following authorities: Kane v. TI. P. R. R., 5 Neb., 107-8. People v. Schuyler, 4 Com., 173. Ohio v. Jennings, 4 Ohio S., 419. 2.

Error from the district court for Douglas county. The opinion states the case. I. At the common law a partnership debt cannot be collected from the estate of a deceased partner, unless the survivor is shown to be insolvent. 1. The assets of a partnership must be applied -to pay partnership debts, and the estate of an individual member thereof must be applied to pay his debts.

Error from the district court for Douglas county. Judgment against plaintiff in error who was defendant below. The facts appear in the opinion. The judgment should be reversed, because the plaintiff in error was a married woman, and the services rendered to her and her children were necessaries, for which her husband was alone liable. Medical attendance and medicines are necessaries. Tyler on Infancy and Coverture, page 357, and cases there cited.

Error from the district court for Lancaster county. cited Carothers v. Wheeler, 1 Oregon, 194. Paine v. Mason, 7 Ohio State, 206. Cock v. Bunn, 6 Johns., 326. Code, sec. 892. Gen. Stat., 662. The plaintiffs in error did not file their appeal bond within ten days as provided by section 1007, nor transcript within thirty days next following, and plaintiff in error cannot file appeal undertaking after ten days under section 895, page 662, general statutes.

Appeal by defendant from a decree rendered against him in the Polk county district court. The facts are set forth in the opinion. 1. The petition does not state facts sufficient to constitute a cause of action. The facts which constitute the alleged fraud must be particularly set forth. Arnold ¶. Balcer, 6 Neb., 134.

Error from tbe district court for Lancaster county. Tbe facts of tbe ease are stated in tbe opinion. Tbe mortgage in question was void: First. Because it was not filed till October 21,1876, while E. Mary Gregory purchased and took possession October 4, 1876. Second.

Error from the district court for Dixon county. 1. The verdict of the jury is not sustained by sufficient evidence, and is against the weight of testimony given in this cause. The defendants plead payment, which is denied by the plaintiff.

Error, from Stanton county district court, .the facts appearing in the opinion. It is a good cause for granting a new trial that the party has been surprised by evidence. Sandford Manuf Co. v. Higgins, 14 N. H., 441. When a party or his counsel is taken by surprise on a material point or circumstance which could not have been anticipated, and when want of skill, care, or attention cannot be justly imputed, and injustice has been done, a new trial should be granted.

This was an appeal from the district court of Lan- . caster county, and the facts are set forth in the opinion. 1. It is respectfully submitted that under our statute a judgment is not a lien upon after acquired property. Roads v. Symmes, 1 Ohio, 313. Lessee of Phelps v. Butler, 2 Ohio, 224. Sec. 477 General Statutes, page 605.

Plaintii'k in error was indicted at the October term, a.d. 1877, of the district court for Dodge county, for the murder of his wife by poison on the thirtieth day of May previous. He was put upon trial there on the fifth day of February, 1878, hut the jury did not agree upon a verdict and were discharged.

<p>1. Finding of Court bn Questions of Fact: how treated in the supreme court. In cases tried to the court without a jury, the- finding on questions of fact is entitled to the same respect in the supreme court, on appeal, as would be accorded to the verdict of a jury under like circumstances.</p> <p>2. Usury: loan by agent. It is a salutary rule, and one that should be rigidly applied in all proper cases, that where one who is intrusted with the business of loaning money exacts for its use, either directly or indirectly, by whatsoever shift, or device, interest in excess of the rate permitted by the statute, the transaction is usurious and will be judged accordingly.</p>

<p>Error from tbe district court of Cuming county.. Tbe facts are sufficiently stated in tbe opinion.</p>

Error from Lancaster county district court. The lien obtained by the levy of an execution or attachment is a specific lien; and for that reason, inasmuch as it indicates that the creditor elects to satisfy from that specific property, and probably for a further reason that the levy is in the nature of a purchase through an officer, being accompanied with cost and expense to the credit- or, whenever the matter has been reviewed, it is deemed a lien of higher character than…

This was an action in the nature of a quo warranto, to determine the right of défendants to hold and exercise the duties of the common council of the' city of Wahoo, Saunders county. Judgment below was for defendants, and the cause docketed in this court as an appeal. At the present term, under an order of court made in that behalf, the relator was allowed to file an assignment of error, upon which, with the record, the cause was argued and submitted.

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

Error from the district court for Saunders county. cited Jefferson v. Besley, 5 Wis., 134. Warner v. Board of Supervisors, 19 Wis., 611. 1. We refer the court to sections 34, 35, 38, and 39 (Gr. S. 238-239). The last section requires the clerk “to record in a book, etc., aU proceedings of the board.” The aggrieved party may “ appeal from the decision” (sec. 34), and the clerk shall make a “ complete transcript of the proceedings” (sec. 35).

Error from the district court for Butler county. cited Gen. Stat., 266, sec. 11. Id., 546, sec. 142. 1 W. L. Monthly, 351. 1. The entire subject ■ of amendments, terms upon which they are made, time of answering after filing an amended petition during term, is left to the discretion of the trial court, and the plaintiff in error must show an abuse of that discretion before this court will grant relief. Mills v.- Miller, 3 Neb., 95. O’Dea v. Washington Co., Id., 122.

The facts of the case are sufficiently stated in the opinion. The mere fact that George J. Jones forwarded by express money to his father is no evidence that his father received the same. Nor can the contents of a letter of instructions accompanying said money, to show what was to be done with said money, be shown, unless it is shown that the same. reached its destination and has been lost. 1 Greenleaf Ev., 88.

The facts appear in the opinion. The whole claim of the defense goes to the legal capacity of the plaintiff to sue. 1. Under the code want of legal capacity to sue is one of the six grounds for demurrer, when appearing on the face of the pleading, and when not so appearing the objection must be taken by answer, otherwise it is waived. Code of Civil Procedure, secs. 95, 96.

This was an action brought by plaintiff to remove the cloud from her title to íot six in block nineteen in West Point, Cuming county.

On the fifteenth day of September, 1874, the Nebraska City National Bank obtained a judgment in the district court of Otoe county against Thomas H. Adams, Wesley Conner, and J. Gordon Conner, and on the twenty-second of October following, caused execution to be issued and levied upon certain personal property in possession of Thomas H. Adams.

This was an appeal by James H. Catron from a decree rendered against him in the district court for Otoe county, wherein he was impleaded with one McWilliams in an action brought by Lounsbury to foreclose a mortgage upon certain property in that county executed and delivered by said McWilliams. 1.

Appeal by defendants from an order of confirmation of the sale of real estate in the district court of Cass county. The case involves a construction of the act for the more equitable appraisement of real property at judicial sale (Laws 1875, p. 60), the first four sections of which are as follows: Suction 1.

This case was brought up on a writ of error to the Clay county district court, where Candy had been tried and sentenced to imprisonment in the penitentiary for the term of one year. cited Ellis v. Karl, 7 Neb., 381. Gen. Stat., 722. Constitution, Art. I, See. 15. cited Gen. Stat., 821, See. 435. 2 Wharton’s Prec., 2.

Appeal by defendant Baldwin from a decree rendered against Mm in the district court for Douglas county. The opinion contains a sufficient statement of the facts in the ease. 1. The possession of land by a tenant is notice of the landlord’s title, and is enough to put subsequent mortgagees or purchasers upon inquiry as to landlord’s title. Dutton v. Warschauer, 21 Cal., 610-28-29. Hanley v. Morse, 32 Me., 287. Daniels v. Davidson, 16 Yesey, 249.

This was an appeal by plaintiff from a judgment rendered against him in the Douglas county district court. The cause was heard below upon plaintiff’s demurrer to the answer of the defendant Hughes, which was overruled and cause dismissed. As there is nothing in the issue relating to estoppel, the court cannot consider it. Estabrook v. Omaha Hotel Co., 5 Neb., 76., Fryes, ex rd., v. The Lexington Big Sandy JR. R. Co., 2 Met. (Ky.), 823-4.

Error from tbe district court for Cass county. Tbe case is stated in tbe opinion. 1. Tbe law is not so unreasonable as to require a tender or demand when it appears from defendant’s conduct that it would be useless, and an absolute refusal to do tbe act for wbicb tbe money is to be paid waives a tender. Vaupel v. Woockoard, 2 Sand., Cban. Rep., 148. Beacham v. Eckford’s Ex., 2 Sand., Chan. Rep., 131. Stone v. Sprague, 20 Barb., 509. Richie v. Huntington, 7 Kan., 249.

This was an appeal by plaintiff from a decree rendered in the district court for Richardson county, Weaver, J., presiding. The cause was tried upon the pleadings and an agreed statement of facts, and having been heard here on the last day of the present term, was by stipulation of the parties submitted to the court, and the decision thereon filed and decree entered in vacation, April 22, 1879.

Error from the district court of Douglas county. The opinion states the case. 1. The. law has become substantially settled that while the married women’s acts excluded the husband during her life from control or of interference with his wife’s separate, real, and personal estate, and give to her alone the power of disposition by deed or will, yet they left the husband the right of curtesy in her real property which remained undisposed of and unbequeathed at her death.

<p>Practice: trial term or court. A cause was tried at the November, 1877, term of the district'court,,and taken under advisement, and a final decree rendered at the March, 1877, term of said court, and the bill of exceptions was signed on the fourth day of May thereafter; Held, on a motion to quash the bill of exceptions, that the trial term continued until a decision was rendered.</p>

Error from the district court for Douglas county. The opinion states the case. 1. To direct a jury simply that “any distinct assertion or affirmation of quality intended to cause the sale and operative thereto, implies a warranty,” without more definite explanation of the nature of the assertion or affirmation, is too broad. And the mischief was not counteracted by the previous general statement on the point of “ naked praise.” Hart v. Wright, 17 Wend., 267.