Volume 9 — Nebraska Reports

Error, to the district court of Richardson county. Tried below before Weaver, J. The facts of the case appear in the opinion. cited 2 Parsons Notes and Bills, 570, 571. Kountz v. Kennedy, 68 Penn. State, 187. Merrick v. Dowry, 4 Ohio State, 61, and authorities cited in brief of attorney for defendant, on page 63. Kevin v. De Grand, 15 Mass., 436. Brown v. Straw, 6 Neb., 536. Horst v. Wagner, 43 Iowa, 373. McRaven v. Orisler, 53 Miss., 542. Hervey v. Harvey, 15 Maine, 357.

<p>1. Assignments. An assignment for the benefit of creditors, ■ which authorizes the assignee to “ sell and dispose of the property, and generally convert the same into money, upon such terms and conditions as in his judgment may appear jusi and for the interest of all parties interested,” is not void upon its face.</p> <p>2.--An assignment for the benefit of all creditors, being as between them just and equitable in its nature, will not he declared void, unless it is clearly so.</p> <p>3. -: assignee. The .clerk of a district court may act as assignee, and his approval of his own bond does not render his acts void. But he may be required at any time to give additional security.</p>

W. H. Asbby and Daniel Freeman were owners in fee simple of a certain lot in tbe city of Beatrice, Gage county.

This was an action brought by Hattie May in the district court for Richardson county upon two promissory notes executed by John May, the first for $1,000 to one Kooken, and by him assigned to the plaintiff, and the second for $728.81 directly to the plaintiff'. Plaintiff and defendant were husband and wife, and the notes sued on were made and delivered and suit brought thereon while they occupied that relation.

Error, to York county district court. Tried before Post, J. The case is stated in the opinion. 1. The verdict does not comprehend the whole issue, and should have been set aside. Warner v. Hunt, 30 Wis., 200. Appleton v. Barrett, 22 Wis., 568. Child v. Child, 13 Wis., 17. Smith v. Phelps, 7 Wis., 211. Handy v. Levin, 5 Ohio, 228, 239, 259. Boynton v. Page, 13 Wend., 425. Bemus v. Beekman, 3 Wend., 667, 672, 674. Black v. Winterstein, 6 Neb., 224.

Tried below before Post, J. The action was brought by the Columbus State Bank on a promissory note for $1000 against Smith, the maker, which was indorsed by Johnson, payee, and delivered to said Bank before maturity. The note was dated March 8, 1877j and by its terms became due and payable January 23, 1879.

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

<p>Error to the district court of Lancaster county. Tried below before Pound, J. Tbe facts appear in the opinion.</p> <p>cited Bump on Fraudulent Conveyances, 347, 404) 408, 409. Evans v. Chapin, 20 How. Pr., 289. Bow v. Plainer, 16 N. TT., 562. Bur-rill on Assignments, §§ 96,134, 228. Strong v. Carrier, 17 Conn., 319. Pobins v. Embry, 1 Smedes & Marshalls’ Ch., 207. Pingree v. Comstock, 18 Pick., 46. Mulford v. Shirk, 26 Penn. State, 473. Derby v. Weyrich, 8 Neb., 174. Garnor v. Frederick, 18 Ind., 507. Brooks v. Nichols, 17 Mich., 38. Smith v. Mitchell, 12 Mich., 180. Heckman v. Messinger, 49 Pa. St., 465. Bellows v. Fartridge, 19 Barb,, 176. White v. Monsarrat, 18 B. Monroe, 809. Brice v. De Ford, 18 Md., 489. Watkins v. Wallace, 19 Mich., 57. .Wilt v. Franklin, 1 Binn., 514. Finlay v. Dickerson, 29 111., 9. Whipple v. Dope, 33 111., 334.</p> <p>The instrument offered in evidence as an assignment was properly excluded.</p> <p>1. Because it was not recorded within the time and in the manner contemplated by statute, and is therefore void. Laws of 1877, p. 26, §§ 1 and 7. Gen. Stat., 248, § 5. Hooker v. Hammill, 7 Neb., 234.</p> <p>2. Because it contains no description of the property assumed to be conveyed. Bump on Fraudulent Conveyances, 347, 349, Draheley v. DeForest, 3 Conn., 273. Wilt v. Franklin, 1 Binn., 514. Burd v. Smith, 4 Dali., 76. Grow v. Buby, 5 Mo., 484.</p> <p>3. Because it contains reservations for the benefit of the debtors. Nichols v. McFwen, 17 N. Y., 22. Clark v. Bobbins, 8 Kan., 574.</p> <p>4. Because it confers upon the assignee authority “ to compound for choses in action ” (of the assignors), “ taking a part for the whole, where the said party of the second part ” (the assignors) “ deems it expedient to do so,” and otherwise confers unrestricted authority upon the assignee. Hutchinson v. Lord, 1 Wis., 286. Haines v. Campbell, 8 Wis., 187.</p> <p>5. Because the assignment purports to be a joint conveyance by the partnership and the individuals composing it, and it therefore confuses the separate funds which, partnership and individual creditors are each respectively entitled to have applied to the satisfaction of their claims.</p>

Tbis was an action of replevin. The defendant, who was plaintiff in the court below, claimed tbe title and right of possession to the property in question, by virtue of a bill of sale from John 0. McMahon to Mary McMahon, his wife, and a sale from Mary McMahon to himself.

Tried below before Post J. There is a sufficient statement of the facts contained in the opinion. The contract sued on is not the contract of the district. It should be in writing and have consent of moderator or treasurer indorsed thereon. Laws 1875, p. 117, sec. 6. It is simply the contract of one Leavitt, and he alone is responsible. It does not bind the district. People, ex rel. Hunter, v. Peters, 4 Neb., 254.

The actipn there was to foreclose a mortgage .executed by Samuel Jones to William Null. Rebecca Jones was the wife, and the other defendants were heirs of Samuel,'.who had died before the commencement of the action. The case came to this court, upon demurrer to the petition, at the January term, 1877, and is reported 5 Neb., 500.

Indictment against John Fisk, containing three counts and charging him in substance : 1. Rape on Maud A. Fancy, a woman. 2. Rape on Maud A. Fancy, a female child. 3. Assault with intent to commit a rape on Maud A. Fancy, a female child.

The action there was brought by Jones against the A. & N. R. R. to recover $327 and interest from the first day of December, 1876, for medical services rendered one Nelson Russell, who was injured on the railroad track by the cars owned and operated by defendant company. Upon a trial had before Pound, J., and a jury, a verdict was rendered in favor of Jones for $128.25, upon which judgment was entered, motion for a new trial being overruled.

The facts are as follows : In 1875 Benjamin Bowers commenced an action to foreclose a mortgage made by one Horner to Mm. Bindley had purchased the land from Horner, and he, with Horner, and Liebengood, who held a prior mortgage lien upon the premises, were made defendants. Liebengood had previously obtained a decree on his mortgage (which he held by assignment from Cochran and Taylor), and Horner, the mortgagor, had taken a stay therein for the period allowed by the statute.

Heard there before Post, J., upon a petition in error to the county court of said county, where a demurrer of the defendant to the petition of plaintiff had been overruled, and defendant electing to stand by the demurrer, a judgment was rendered for the full amount claimed. This judgment was affirmed by the district court, and defendant there sought by his proceedings in error here to obtain a reversal of both said judgments. 1.

Heard there on demurrer to the petition, which was sustained and the action dismissed. The opinion contains the substance of the petition and states the case. Under the statute there is no action-at-law nor suit in equity, as such. If the facts stated in the petition disclose that the plaintiff is entitled to the relief prayed for, relief will be granted. Civil Code, §§ 2, 90. Wilcox v. Saundevs, 4 Neb., 569. Turner v. Althaus, 6 Neb., 55.

<p>1. Officers: compensation oe public oeeicebs. A public officer must discharge all the duties pertaining to his office for the compensation allowed by law, and will not be allowed compensation for-extra work unless it is authorized by statute. ■</p> <p>2.--: county clbkks. The compensation allowed county clerks iby the act to amend the revenue law, approved February 18, 1877, of four cents for each description of lots and lands upon the tax list and duplicate, is in excess of the limitation of $1,500, and is for extra services.</p>

Heard below before Weaver, J., upon objections to a confirmation of tbe sale of certain real estate sold under an execution issued upon a judgment rendered in favor of Brown & Brother and against Gilbert & Artist. Objections overruled and sale confirmed. Plaintiffs had a right to have the whole proceedings inquired into, and the jurisdiction of the court rendering the judgment examined by the district court. Buckingham ¿- Co. v. Granville Alexandria Society, 2 Ohio, 361.

<p>Practice in Supreme Court. The supreme court can review an action at law only by proceedings in error. And where it appeal's from the record that no exceptions were taken to the ruling of the court below, and no steps taken to call the attention of the court to the alleged errors, they will not be reviewed by this court.</p> <p>Note. — See Robertson v. Hall, 2 Neb., 17.. Furnas v. Nemaha County, 5 Neb., 367. Morrill v. Taylor, 6 Neb., 236. Frey v. Drahos, 7 Neb., 194. Horbaah v. Miller, 4 Neb., 43. Heard v. Dubuque County Bank, 8 Neb., 10, and oases cited. — Rep.</p>

The action there was by Steele, Johnson & Go. against Marsh and McPherson, to recover the amount due on a certain promissory note executed by Mai’sh to McPherson, and by the latter indorsed to plaintiffs. Upon affidavit of the plaintiffs that Marsh was a nonresident, an order of attachment issued and property of Marsh taken thereunder. Marsh moved to discharge the attachment on the ground that no undertaking had been given. Motion overruled by Pound, J. and exceptions taken.

On the 10th day of January, 1878, Moore filed in tbe county court of Lancaster county, Nebraska, bis affidavit and bill of particulars in replevin. Tbe property, tbe possession of which be sought to recover, was described as two horses, and in tbe bill of particulars their value was alleged to be one hundred and fifty dollars. He prayed for a return of tbe property, and also a judgment for two hundred dollars, bis damages.

The facts were as follows: The defendant in error was engaged in the business of manufacturer of and dealer in cigars and tobacco in Lincoln, in 1877 and 1878, and the plaintiff in error kept a billiard-room, where he dealt in cigars purchased of defendant. The books of defendant in error show a continuous dealing during the year 1877 and up to February, 1878. By express agreement between the parties bills were made out and due and payable at the end of every month.

The petition filed in the action was as follows: The above named plaintiff complains of the above named defendant for that on and before the 11th day of March, 1872, Thomas H. Hyde, then of Lancaster county, in the state of Nebraska, was the owner, and lawfully possessed of the following described real estate, situate in said county, to-wit: Lot four in block 86, and lots one and two in block 84, excepting 20 feet off of the south end of said lots one and two, in the city of…

<p>Practice: appeal not allowed aeter stay taken. If a stay of the order of sale under a decree of foreclosure he ta^ ken, no proceedings on appeal from such decree can afterwards he had. [Laws 1875, p. 50.]</p> <p>Note. — Prior to the passage of the statute cited, a contrary rule prevailed. White v. Blum, 4 Neb., 555. — Hep.</p>

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

Tried before Weaver, J. The opinion states the case. 1. The defendant was prosecuted for the crime of bastardy, and the power of the state, wielded by the district attorney, was brought to bear against him. On behalf of the plaintiff in error we say that there is no such crime as bastardy known to the law. The proceeding under the bastardy act is in no sense a criminal proceeding, but, on the contrary, it is one of a civil nature merely.

Error lo the district - court of Lancaster county. Tried below before Pound, J. The facts appear in the opinion. 1. What is the character of the organization known as the Nebraska State Grange of the Patrons of Husbandry? It is difficult to bring it within the true definition of any branch of the law or fix upon it the duties and liabilities incident to any department of the law.

Tried below before Post, J. The opinion contains a statement of the facts in the case. 1. The notice to quit was insufficient, and should not have been received in evidence. Held: sufficient in the above cases to warrant a decree for specific performance. Any act may be proved which tends to show that the relation of landlord and tenant does not exist. Edwards v. Spry, supra. Armstrong v. Eattenhorn, 11 Ohio, 272. Brown on Statute of Frauds, § 478. 1.

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

It was an action of forcible entry, and detainer, brought by defendant in error against plaintiff, in the county court of Washington county; finding and judgment for defendant in error. Plaintiff in error prosecuted a petition in error to the district court of Washington county, Nebraska, where the findings and judgment of the county court were affirmed by Sava&e, J. To reverse the judgment of the district court, this petition is prosecuted in this court.

aline county. Tried below before Pound, J., sitting in that county. The opinion states the case. 1. It is urged for the defense that the note is founded upon an illegal consideration, for the reason that it was to aid in the erection of buildings. This cannot be so. Dillon Mun. Cor., Sec. 382, Note 1. State v. Collins, 6 Ohio, 126. Odineal v. Barrit, 24 Miss., 9. Bryan v.Dyer, 28 111., 188. Brimhall v. Van Ham-pen, 8 Minn., 13. State, ex. rel.

It was an indictment for the murder of one Stultzman, on the eighth day of February, 1879. The defendant was arrested on that day, and on February 10th, Gaslin, J., made an order directing a special term of court to be held commencing February 15th. A grand and petit jury were ordered, indictment returned on that day, and on the day following the defendant was tried, convicted, and sentenced to be hung.

■ Error to the district court for Washington county. Tried below before Savage, J. The facts appear in the opinion. 1. The court, in the exercise of its discretion, could have confirmed the sale, or set it aside. Rorer on Judicial Sales, § 108, and eases cited. 2. But it could not make a contract for the parties other and different from that made when the bid was accepted. This it attempted to do, and the order is therefore erroneous. Rorer, § 108, and eases cited. 1.

The action there was brought by plaintiff, Young, to restrain the sale of certain real estate, alleged to be her sole and separate property, which had been levied on by the sheriff of said county by virtue of an execution issued under a judgment recovered by Morgan & .Gallagher against one Compton and said plaintiff.

court for Dodge county. The facts are as follows: In 1873 Levi and Andrew Baker, partners, bought of the firm of Case & Co.' a threshing machine, for which they gave their notes, amounting to about $600. These notes came into the possession of 'William Malchow, who had acted as the agents of Case & Co. in making the sale of the machine to the Bakers.

Tried below before Post, J. The facts appear in tke opinion. Under sec. 37, Gen. Stat., 385, a penalty of fifty dollars is given to the party injured, to be recovered ’as debts of the same amount are recoverable by law, without reference to the amount of injury or overcharge, whether five cents or fifty dollars, hence there can be not a donbt it is a “penalty,” arising under the general laws of tbe state.

It was an indictment charging Joseph Brown with having sold to one Cyrus Langworthy one pint of whiskey, without first having obtained a license therefor from the proper authorities. On the trial before Post, J., it was claimed by the defendant that at or about the time of the selling, the purchaser stated that he wanted the whiskey for medical purposes, and not as a beverage.

Tried below before Pound, J. The opinion states the case. The motion to open up tbe judgment and decree under section 82 of the code of civil procedure, is overruled by the court; and tbe last motion filed is sustained, the court holding that the affidavit for publication of the summons was defective, and that the court thereby had acquired no jurisdiction of the defendant. This amounts to an indirect or collateral attack on the j udgment and decree originally rendered.

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

The petition filed in the action is as follows: The said plaintiff complaining of said defendants for cause, states: First, That on or about the first day of October, a.d. 1877, the said plaintiff sold and delivered to said defendants, Erancis Shaffer and John Stump, co-partners as above, goods and chattels at the said defendants5 special instance and. request, for the sum of eighty-seven and ninety-four-one-hundredths dollars ($87.94), no part of which has been paid, and…

Heard below before Weaver, J., on demurrer to the petition; demurrer overruled, and judgment for plaintiff. Defendants below, Smith et. al, brought the case here to reverse said judgment. 1. The petition contains nowhere an allegation that the condition of the undertaking was broken.

demurrer was on the 18th day of December argued and sustained by the court, and an order entered accordingly. Afterwards, on the 9th day of January, 1878, a stipulation, signed by the attorneys of both parties, was filed in said cause, by which the journal entry of December 18th was erased, and another entered sustaining the demurrer, dismissing the action, and rendering judgment against the plaintiff for costs.

Appeal by plaintiff from a decree rendered by Post, J., in the district court for York county. The opinion contains facts sufficient to an understanding of the case here. 1. The defense of usury is not available in this case. Gen. Stat., 447. It is not sufficient to declare the note or contract illegal, but it must be absolutely void in order to plead usury against a note or contract in the hands of a bona fide assignee. Chitty on Bills, 116. 2 Kent Com., 80.

<p>Mortgage Foreclosure: statute or limitations. In 1858, 0. executed a mortgage, due in one year, upon certain lands in this state. In 1872 an action was instituted to foreclose the same, no payments having been made thereon, and certain parties holding tax deeds on the lands were made defendants, who demurred to the petition. Held, 1. That it being apparent from the face of the petition that the debt was barred, the demurrer was properly sustained. 2. That parties holding tax deeds were not proper parties to the proceeding to for-close; but that, having been made parties, the plaintiff must recover, if at all, on the strength of his own title, and not upon the weakness of the defendant’s title. 3. That the statute of limitations is one of repose, and an action to foreclose a mortgage is barred when the statute has run against the note or debt, under the law as it stood before the amendment to the act of limitations, approved February 12th, 1869.</p> <p>Note. — It was held in Eyger v. Ryley, 2 Neb., 20, Peters v. Dunnells, 5 Neb., 460, and Hurley v. Estes, 6 Neb., 386, that where the debt is barred by the statute of limitations, no action can be maintained on the mortgage. But under the amendment made in 1869 to section six of the civil code (Gen. Stat., 268), it was held (Maxwell, Oh., J., dissenting), in Hale v. Christy, 8 Neb., 264, that an action to foreclose a mortgage could be brought in ten years, although the note had been barred. — Rep.</p>

This was a petition in error to reverse an order of .the district court, Gaslin, J., presiding, for Adams county, dissolving an attachment issued in the action. but by leave of court J. H. Broady filed a brief containing substantially the same argument made by him in Marsh v. Steele, ante p. 96.

Heard there upon demurrer to the petition before Ga.slin, J., demurrer sustained, and action dismissed as to defendants, who were sureties on the bond upon which the action was brought.

The plaintiff in error was indicted at the October Term, 1878, for the murder of Florence Booth, on the 10th day of October.

<p>Error to the district court for Q-age county.</p> <p>cited Laws of Neb., 1875, p. 60. Mercer v. Doe, 6 Ind., 80. La Flume v. Jones, 5 Neb., 259. Merritt v. Borden, 2 Disn., 503.</p>

Tried below before Weaver, J., sitting in that county. The opinion contains a statement of the case. The referee finds as a fact that “ The agencies of responsible and reputable companies having an established business are recognized and treated by insurance agents as valuable property or interest, etc.” The parties both treated it as property at the time the defendant sold it to the plaintiff for $900.

<p>Powers of County Judge: practice: costs. A county judge has the ordinary powers and jurisdiction of a jüstice of the peace; and in an action before him, under such jurisdiction, where the plaintiff in his bill of particulars claims the sum of $50, but recovers only $15, he is entitled to costs. Geere v. Sweet, 2 Neb., 67. Beach v. Oramer, 5 Id., 98. Ray v. Mason, 6 Id., 101, approved. [Lake, J., dissenting.]</p>

Heard before Post, J., on motion of defendant to quash an execution issued by the clerk upon a transcript filed in his office of the proceedings and judgment of the county (formerly probate) court of Douglas county. Motion sustained and exceptions taken by plaintiff. 1.

This was an action brought in the district court of Lancaster county to foreclose a mortgage executed by E. Mary Gregory and John S. Gregory to Silas Pratt, January 1, 1874, to secure a note of $1100, due Nov. 20, 1876, with 7 per cent interest, given by third parties, and made payable to the order of E. Mary Gregory; and to secure also $100, due Eeb. 1, 1874, and of a sum annually to make up the rate of interest on the $1100 note to ten per cent per annum.

The action was on the 28th day of June, 1873, commenced in the name of R. H. Dickey, probate judge of Otoe county, Nebraska, for the use and benefit of Mary E. Davenport, and in name of Mary E. Davenport, widow and legatee of William Davenport, deceased, against Benjamin M. Davenport, executor of the last will and testament of William Davenport, deceased, and Joshua IT. Buel as surety of said executor, and one Mary E. Deweese.

Tried below before Post, J. There is sufficient statement of the case in the opinion. 1. The act of accepting a bill of exchange is like the making and delivering of a promissory note; it is the execution of a promissory note, a contract by which the acceptor undertakes to pay the amount mentioned in the bill or in his acceptance to the payee according to the tenor of his acceptance. The mere drawing a bill is no contract with the acceptor.

■ This was a re-hearing of the case reported ante p. 241, granted upon application of the plaintiff. The court erred in giving the following instruction to the jury: Sixth instruction — “Every man is presumed to intend and contemplate the ordinary and natural consequences of his own acts. The law presumes deliberate and premeditated malice from the deliberate and unnecessary use of a deadly weapon in such manner as naturally tends to destroy human life.

Tried below before Post, J. The facts appear in the opinion. 1. There is a defect of parties plaintiff. The action should have been brought by the legal representatives of the deceased. The widow cannot maintain the action. Statutes, 272, secs. 1,2; p. 853, sec. 577. Davis v. Justice, 31 Ohio State, 364. Weidner v. Banian, 26 Ohio State, 522.

Tried below before Gaslin, J., sitting in that county. The ease is fully stated in the opinion. 1. Corporations have only such powers as are specially given by their charters, and national banks have no power to take deeds of trust or mortgages on real estate as security, and have no power not conferred by Congress. An injunction will be granted to prevent a sale by the bank of such mortgaged property. Matthews v. Shinker, 62 Mo., 329. Beaty v. Knowles, 4 Pet., 152.

Tried below before Pound, J. The case is stated in the opinion. 1. Plaintiff in error had, in 1868, in order to help the county authorities and raise money for the treasury, purchased at tax sale a large number of tracts of land, paid the amount of tax therefor into the treasury, and taken certificates of sale thereon.

Tried below before Post, J. The facts appear in the opinion. 1.

Error, to the Otoe county district court. The action was brought by the gas company against Nebraska City to recover $291.66 for gas furnished under contract to the city during the month of June, 1877. To the fourth, fifth, and seventh paragraphs of the answer (the substance of which is set forth in the opinion) a demurrer was filed, which was sustained and exceptions taken.

The action there was brought to recover of the city of Crete certain moneys alleged to have been collected from saloon keepers as a license tax prior to the taking effect of the present constitution, November 1, 1875.

- The action there was brought by Nuckolls against J. A. Ware, John H. Tomlin, and R. E. McComas.

The action there was brought by Fulton to recover the sum of $495.05 for work and labor performed by him in the grading of M .street, in the city of Lincoln, between 16th and 18th. Upon the trial below defendant moved for a non-suit, which was sustained by the court, Pound, J., presiding, to which plaintiff took exceptions.

Tried there before Post, J., and judgment for plaintiff. The opinion states the case. 1. If the description is such as to apprise the owner and persons proxiosing to bid of the exact locality intended it is sufficient. Cooley on Taxation, 282, et seq.. Taiman .v. White, 2 N. Y., 66. Lafferty v. Byers, 5 Ohio, 458. Blakeley v. Bestor, 13 EL, 708. Dunn v. Balyea, 6 Watts & Serg., 475. Stewart v. Sehoenfelt, 13 Serg. & Eawle, 360. Willistonv. Colket, 9 Penn. St., 38.

It was an action brought to foreclose a mortgage given by Jacob Gish, deceased, to John G. Jacobs, the plaintiff, on the 12th day of March, 1874, to secure the purchase money in part of the lot upon which the mortgage was given.

Tbe action was one of replevin brought by the Drummetts against the McCormicks to recover property bought by the latter at a sheriff’s sale under an execution issued in their favor against Adam Ziegler, the step-father of the Drummetts. Upon a trial before Weaver, J., verdict and judgment were given in their favor, to which McCormicks took exceptions. Further facts appear in the opinion. 1.

In the county court, where the action was brought, Ramge, plaintiff there, had verdict and judgment in his favor, which was affirmed on error in the district court. Held: they cannot waive that which they have no power to control; that is, they cannot, by appearing- on a day after said term has expired, give the court, even by consent, that which the legislature has expressly provided 'it shall not have. Consent cannot give jurisdiction to the' subject matter.

, of the fifth district, sitting in that county. The facts appear in. the opinion. 1. It is the duty of the trial court to use all proper means to fully determine the issues involved in an action, and thereby conclude litigation.

In the years 1876, 1877, and 1878, the treasurer of the city.of Crete collected the sum of $3,700 as license money for the sale of intoxicating liquors, under ordinances of said city passed pursuant to the city’s general powers and the authority of chapter 53 of the criminal code.

<p>Error to the district court of Buffalo county. Heard below before Gaslin, J. The opinion states the case.</p>

1. By our statutes, when an appeal is taken from the county court to the district court the latter becomes possessed of the entire case with all its incidents, and carries its own judgments into execution without any intervention of the lower court.- The judgment of the county court is expunged and the court itself divested of all control over, or power in, the case.

The action was for the specific performance of a contract which, with the facts prior and subsequent to its execution, are set forth in the opinion sufficient to an understanding of the case. Defendants below had judgment before Pound, J., dismissing the case, and plaintiff appealed. 1. Time is not of the essence of this contract. Dorsey v. Hall, 7 Neb., 464. Hoagland v. Latourette, 2 New Jersey Eq., 254. Huffman v. Hummer, 17 Id., 264. King v. Ruekman, 21 Id., 599. 2.

<p>Error to the district court for Colfax county. Tried before Post, J. The case is stated in the. opinion.</p> <p>cited Board of Education v. Kersinger, 2 W. L. M. Hunter v. Commissioners, 10 Ohio State, 515. Commissioners v. Craft, 6 Kan., 145. Sec. 95 Gen. Stat., 930. Snyder v. The State, 21 Ind., 77. Taggart v. The State, 49 Ind., 42. Cabel v. McCafferty, 53 Ind., 75.</p>

Tried before Post, J. The facts appear in the opinion. 1. A statute which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past, is deemed to be retrospective or retroactive. Sedgwick on Stat. and Const. Law, 2 Ed., p. 160. Society for Prop, of Gospel v. Wheeler, 2 Gallison, 105. 2.

Tried below before Gaslin, J. The case is stated in the opinion. cited 2 Parsons on N. and B., 117, and Note a and 118 and Note d. Brandt on Suretyship and Guaranty, 2, see. 1, and eases there cited. McMillan v. Bull’s Head Bank, 32 Ind., 11. Central Savings Bank v. Shine, 48 Mo., 463. Allen v. Fosgate, 11 How. Pr., 218. Swan’s Pleadings, 109. Brewster v. Silence, 8 N. Y., 215. Draper v. Snow, 20 lb., 337. 7 Kan., 339. 20 Mich., 46.

<p>Original application for an injunction.</p>

Appeal by defendants from a decree of foreclosure rendered against them in Lancaster county district court, Pound, J., presiding. cited Montany v. Rock, 10 Mo., 506. Wiley v. Hight, 39 Mo., 130. Willie v. Green, 2 N. H., 333. SMreley v. Witty, 19 111., 623. Mitchell v. Doggett, 1 Ela., 365. Matlock v. Mallory, 19 Ala., 694. Richards v. Kountze, 4 Neb., 200, and authorities there cited. cited Richards v. Kountze, 4 Neb., 200. Rosa v. Doggett, 8 Neb., 48.

Original application for mandamus. contended tbat tbe respondent, having money in his possession, derived from a special levy, for the specific purpose of paying the interest on the bonds in question, that the act of payment is a naked ministerial duty, clearly incumbent upon respondent, the performance of .which will be ■compelled by mandamus. High on Ex. Remedies, secs. 80, 81, 86, 87, 88, 89, 90, 104, 106, 112, and cases cited.

Original application for mandamus to compel the respondent to draw his warrant on the state treasurer for the sum of $75, balance of salary alleged to be due the relator as deputy commissioner of public lands and buildings for the fiscal quarter ending June 30, 1879.

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

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

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

<p>1. Boundaries. J. brought an action against P. to recover possession of a parcel of land, and sought tore-establish the quarter section corner on the south side of a section by course and distance. Held, that where the jury find that such corner was established by the government surveyors, its location cannot be changed by testimony showing that it is not equi-distant between the south-west and south-east corners of the section.</p> <p>2. -: government survey. Mounds thrown up by the government surveyors as corner, sand quarter section corners, of sections, control course and distance.</p>

This was an appeal by plaintiff from a decree rendered by Savage, J., in tbe district court of Douglas county. Tbe opinion contains a statement of facts sufficient to an understanding of the case.

Plaintiff’s action was in the nature of a creditor’s bill to set aside conveyances by defendant Wiswall to defendant Eord of 850 acres of land in Nemaha county.

Error from district court of Merrick county. Tried before Post, J. The defendant in error brought his action in the county court of Merrick county to recover possession of a certain gun of the value of $75, where judgment was rendered in his favor, and plaintiff in error appealed to the district court.

This is an action brought on a promissory note by the plaintiff in error in the district court of Eranklin county. The note was for $500, and given for a threshing machine. On the trial plaintiff cálled defendant as a witness to prove his signature to the note, and defendant denied that the signature was his.

<p>1. Constitutional law: printing op amendments to bills. Held, That the language of section 11 of Article 3 of the constitution: “ Every bill and concurrent resolution shall he read at large on three different days in each house, and the bills and all amendments thereto shall be printed before the vote is taken upon its final passage,” does not apply to amendments at- . tached to a bill upon the report of a committee of conference after a disagreeing vote of the two houses.</p> <p>2. Act to take effect upon the happening of a future and uncertain event. 11 The event or change of circumstances on which a law may be made to take effect must he such as, in the judgment of the legislature, affects the question of the expedíency of the law; an event on which the expediency of the law, in the opinion of the law-makers, depends. On this question of expediency the legislature must exercise its own judgment definitely and finally. When a law is made to take effect upon the happening of such an event the legislature in effect declares the law inexpedient if the event should not happen, but expedient if it should happen." Buggies, O. J., in Bario v. Bimrod, 8ÍT. Y., 489.</p>

<p>Order confirming sale on foreclosure of mortgage. On appeal from an order of the district court confirming a sale of mortgaged premises, held, That this court would not consider a question involving the merits of the original case.</p>

<p>Statute of Limitations. Cause of aciion arose in the state o’f Iowa, where defendant then resided with his family. But he carried on a business at the city of Plattsmouth, in this state, and was personally present at Plattsmouth nearly every day for about three years, when he moved with his family to Plattsmouth, and continued to reside there. Suit commenced after the expiration of four years — in contract, not in writing. Plea of the statute of limitations. Held, that the statute commenced to run at the time of the defendant’s removal with his family into this state.</p>

<p>1. Summons: sebvice : betubn. "When the return to a summons stated that it was served upon the defendant “ by reading to him a true and certified copy of the same, with all the indorsements thereon,” held, insufficient to give the court i jurisdiction, as the statute requires the service to be made by delivering a copy of the summons with the indorsement thereon to the defendant, or leaving the same at his usual place of residence.</p> <p>2. Practice: appeabance. A party may appear specially to object to the jurisdiction of the court for want of proper service of summons.</p> <p>8. Motion for Hew Trial. "Where the judgment of a justice of the peace is taken on error to the district court and affirmed, no motion for a new trial is necessary in that court in ordár to have the judgment reviewed in the supreme court, as the matters involved are purely questions of law.</p> <p>4. Petition in Error: vebieioation. It is unnecessary to add a verification to a petition in error, it not being a plea'ding of fact within the meaning of the code.</p>

<p>Attachment: trial or right or property. Certain property in the possession of and claimed by S. was levied upon under an order of attachment against E. Proceedings were thereupon instituted by S. for a trial of the right of property under the provisions of sections 996, 997, and 998 of the code, and on the trial he was adjudged to be the owner of the property in dispute, and an order was thereupon issued by the justice to require the officer to return the property to the claimant. Held, That a judgment in such proceedings in favor of the claimant is not conclusive as to the ownership of the property, and that the creditor, notwithstanding such judgment, may still contest his right to such property, and that a mandamus will not be granted to compel the officer to comply with the order of the justice.</p>

, presiding, enjoining the collection of taxes levied in the year 1875, to pay school district bonds issued by several districts of that county, and dismissing the petition as to-land road taxes levied for the same .year.

<p>Practice: joinder in demurrer. On error brought to reverse the judgment of the district court sustaining a joint demurrer by several defendants to a petition, charging a joint trespass or wrong to the property of the plaintiff, the court, being of opinion that the petition states a cause of action as against one of the defendants, the demurrer should be overruled as to all of them. The rule of practice in such cases is that a joint demurrer to a complaint by several defendants will be overruled if it state a cause of action against any of those • joining in the demurrer.</p>

Tried there before Pound, J., sitting in the absence of Weaver, J. 1. E.or the selection of a jury there can be no proper mode but that fixed in the statute, and that should be pursued, and upon this the following and many others are instructive cases showing the jealousy with which this subject is viewed. State v. De Rocha, 20 La Ann., 356. McDonald v. Shaw, Coxe, N. J., 6. People v. Goyodo, 40 Cal., 586. Wright v. Stewart, 5 Blackf., 120.

Tried below before Post, J. The opinion states the case. This petition for a new trial is defective because the alleged newly discovered evidence, according to the admission of the defendants in error in their said petition, does not bear upon any of the issues in the original suit (Kruger v. Adams $ French Harvester Co. et al.), thus conceding ,that the same is not material. Code, sec. 314, subdivision 7. 24 Ohio State, 133 and 134. Hilliard on New Tr., chap.

This was an action bi’onght in the district court of Gage county by LePoidevin & Co. against Meyers and La Selle to recover $116.16, and foreclose a mechanic’s lien on a lot belonging to La Selle, which Meyers held by lease. Meyers was not served with summons. La Selle was; appeared in the action, and filed a demurrer, which was overruled.

Upon trial there before Weaver, J., and a jury, verdict was returned in favor of Horner for $411.70. Judgment on verdict and exceptions by Eindley. cited Grant v. Johnson, 5 N. Y., 247. 4 N. Y., 396. 9 Id., 535. 1 Spencer, 214. 15 Wis., 341. 7 Neb., 73. cited 2 Story Con., 946. 2 Wash, on Real Prop., 470. 1 Story Rep., 499. 7 Cranch, 299. 4 Neb., 190.