land, receiving no profits therefrom, and that
it was uninclosed and unimproved prairie
land, no damages can be awarded for use and
Occupation.-Griffey v. Kennard, (Neb.) 791.
ELECTIONS AND VOTERS.
Formation of counties, see Counties, 1.
Conduct of elections.
1. The facts that the judges at an annual
village election could not read or write the
English language, and that a person who held
the office of village recorder, and was a can-
didate for re-election to such office, acted as
clerk of such election, are not sufficient to in-
validate the election of two persons as trus-
tees who were in nowise connected with the
irregularity.-State v. Bernier, (Minn.) 368.
2. The fact that the ballots cast at an an-
nual village election were read and canvassed
by the clerk of election, and not by the judges,
will not invalidate the election.-Id.
3. Nor will the failure of a village council
to file or publish the financial statement of
the village prior to the election.-Id.
4. An annual village election is not void be-
cause no registered poll-list was made or
posted prior to such election.-Id.
5. Nor because the village council did not
designate the places in the village for the
posting of notices thereof.-Id.
6. Nor because the village council failed to
designate a place for holding and judges to
act at such election.-Id.
striking therefrom two votes said to have
been illegally cast, thus changing the result
of the election. Held, that they had no au-
thority to change the returns of the election
board, and that mandamus would lie to com-
pel them to canvass the returns as received.
-State v. Wilson, (Neb.) 31.
1. Under Code Iowa, § 390, which provides
that "if * *
sixteen years embezzle," etc., "without the
any person over the age of
consent of his employer
of another which has come into his possession
by virtue of such employment, he is guilty of
larceny," etc., the indictment need not allege
the particular nature of the employment by
ant's possession; and, if the same has already
virtue of which the money came into defend-
been set forth, an averment that the money
came into defendant's possession "by virtue
Jamison, (Iowa,) 508.
of such employment" is sufficient.-State v.
2. Under Code Iowa, § 390, which provides
"embezzle and fraudulently convert," etc.,
that if any person over the age of 16 years
"money," etc., he shall be guilty of larceny,
an averment in the indictment that defendant
"did
fraudulently embezzle and con-
vert," etc., sufficiently follows the statute.
was presented, no sufficient effort had been
made to settle with the owner, but that such
effort was made before the proceedings were
moved in before the probate court, the peti-
tion will be allowed to stand without being
resworn to or presented anew.-Grand Rapids
& I. R. Co. v. Weiden, (Mich.) 294.
7. Under Laws Mich. 1887, act 208, providing 1. Where the evidence in condemnation pro-
that on the filing with the board of canvass-ceedings shows that, at the time the petition
ers of a petition by one aggrieved by the
count of votes made by the inspectors of elec-
tion, and his complying with certain other
requisites, a committee shall be appointed,
who shall open the ballot-boxes, and make a
recount and return to the board, who are to
accept the same as correct, anything in pre-
vious returns notwithstanding, it is the duty
of the board of city canvassers, where the
proper petition is filed, and other requisites
are complied with, to grant a recount of votes
cast for alderman, there being no provision
making the board or common council judges
of the election and qualification of aldermen;
and it cannot refuse because the votes were
counted twice by the inspectors with the same
result, with which the board was satisfied,
that the number of votes cast corresponds
with the poll-list, that relator was present at
the count, and made no objection for mistake
or fraud, and that he stated that he did not
think that there was fraud or intentional er-
ror, and he desired to offer no proof.-State v.
Board of City Canvassers, (Mích.) 11.
Changing returns.
8. The judges and clerks of the election in
the village of N. duly certified the returns of
the election held April 5, 1887, to the board of
trustees of said village, and they were duly
delivered to the village board without change
or mutilation. On a canvass of the returns,
the trustees, as a board of canvassers, re-
ceived evidence, and changed the return by
2. Where the proposed improvement would
cause the overflow of a large portion of plain-
tiff's land, alleged by him to be very valuable,
and the opinions of witnesses as to its value
differed widely, and the court was of opinion
that the jury must have been unduly influ-
enced by the evidence of the amount and price
of the hay produced thereon as against the
evidence of its market value, and that, consid-
ering all the evidence, the damages were ex-
cessive, there being no clear preponderance of
evidence in favor of the verdict, the court's
action in granting a new trial should not be
disturbed.-Whitely v. Mississippi W. P. &
B. Co., (Minn.) 753.
3. Where a land-owner appears before com-
missioners appointed upon petition duly filed,
and is heard in respect to his damages, and
be deemed to have submitted to the jurisdic-
thereafter appeals from their award, he will
tion of the court, and to have waived irregu-
larities in the proceedings for the appoint-
ment of the commissioners.-Id.
4. Under Comp. St. Neb. c. 16, § 97, as
amended in 1883, where, on an appeal from an
Conclusiveness of finding.
award of damages for property taken for right | Grand Rapids & I. R. Co. v. Weiden, (Mich.)
of way of a railway, the verdict is less than 294.
the amount of the award, neither the railway
nor the land-owner will be liable for all the
costs of the appeal; but such costs should be
divided between the parties.-Burlington &
M. R. Co. v. Spere, (Neb.) 35.
5. In an appeal from an award of damages
for property taken for right of way purposes,
if appellant fails to obtain a more favorable
judgment than was given by the commission-
ers who made the award from which the ap-
peal is taken, such appellant will be liable for
all costs occasioned by the appeal.—Atchison
& N. R. Co. v. Plantt, (Neb.) 33.
Compensation-Evidence.
6. In condemnation proceedings for taking
for a railroad a strip through a farm, it is
proper to ask the witnesses what is the differ-
ence between the value of the farm without
the railroad across it, and its value with the
railroad across it.-Sigafoos v. Minneapolis,
L. & M. Ry. Co., (Minn.) 627.
7. Where the company's witnesses had
stated their opinion of the difference in values
between the value of a farm before and after
a right of way is taken across it, it was prop-
er, on cross-examination, in order to test the
value of their opinions, to ask them if in their
judgments it would make any difference that
the owner had no right to cross the right of
way taken.-Id.
Measure of damages.
8. It was error, under Gen. Laws Minn. 1887,
c. 174, § 2, providing for crossings to be built
by the land-owner, and maintained by the
railroad company, to charge the jury, on ap-
peal from the award of commissioners in pro-
ceedings to acquire a right of way through
plaintiff's farm for railway purposes, that, no
crossings having been reserved to plaintiff,
he was not, as a matter of law, entitled to
any, and that his damages should be assessed
accordingly.-Schmidt v. Minneapolis, L. &
M. Ry. Co., (Minn.) 487.
9. Certain crossings made by the company,
at the owner's request, in constructing the
road over his farm, being apparently only
temporary, it was right in the court to decline
to charge that the amount of the verdict
should be the difference in the values with-
out the railroad, and with the railroad "with
the crossings over and under the track now
there."-Sigafoos v. Minneapolis, L. & M. Ry.
Co., (Minn.) 627.
10. In considering benefits to that portion
of an entire tract not taken, only such as re-
sult directly and peculiarly to the particular
tract are to be allowed, and not remote or
speculative benefits resulting from a rise of
property generally by reason of the improve-
ment. Whitely v. Mississippi, W. P. &. B.
Co., (Minn.) 753.
12. The finding of a jury of inquest in con-
demnation proceedings is not conclusive as
to the damages; and where it appears that
the amount awarded was much smaller than
any testimony in the case warranted, and that
the jury entirely disregarded proper elements
of damages, the finding will be set aside.—Id.
See, also, Creditors' Bill; Fraudulent Con-
veyances; Injunction; Mortgages; Part-
nership; Quieting Title; Specific Perform-
ance; Trusts.
Laches, see Specific Performance, 3.
Parties, see Waters and Water-Courses, 2.
Action by attorney general.
1. A bill in equity will lie at the suit of the
attorney general to restrain a municipal cor-
Taggart v. City of Detroit. (Mich.) 714.
poration from discontinuing a public market.
Reformation of contract.
2. A husband and wife executed a mortgage
intended to cover 160 acres, but by mistake it
was drawn to cover only 40 acres. Defend-
ants B. and C. purchased the land subject to
the mortgage and understanding that it cov-
ered the whole 160 acres. Subsequently de-
fendant D. discovered the mistake, and pro-
cured a conveyance of a part of the land from
the other defendants. The portion so con-
veyed included 40 acres, which, when the
mortgage was executed, was occupied by the
mortgagors as a homestead, and D. contended
that the mortgage could not be so reformed
as to cover this, the wife not having actually
signed a mortgage of it. Held, that D., hay-
ing purchased with knowledge of the mistake
and with intent to defraud, could not make
this defense.-Ford v. Daniells, (Mich.) 708.
3. Where in a suit to reform a contract it
appears that plaintiff knew before he signed
the contract of the mistake in it, and called
the scrivener's attention to it, but he did not
understand it, and defendant testifies that the
instrument contains the agreement exactly,
the suit will be dismissed.-Ellison v. Fox,
(Minn.) 358.
4. A grantor of land by absolute conveyance
cannot sustain an action to have his deed de-
clared a trust deed where his only competent
evidence shows merely that he was allowed
to retain possession after sale, and where he
has allowed valuable improvements to be
made on the land by the occupant and appar-
ent owner, and presents no reasonable excuse
for a year's delay in pressing his claim.-Buf-
fum v. Porter, (Mich.) 600.
5. Where a description in a deed to com-
11. Where the land-owner is using his prop- plainant conveyed less land than was intend-
erty in lucrative business, in which the focal-ed by both parties, thereby increasing the ad-
ity and surroundings have a bearing on its joining lot, the owner of which knew of com-
value, he is entitled not only to the money plainant's occupancy, improvements, and
value of the property itself, but also to such correct boundaries, the latter is entitled in
compensation as will reimburse him for the equity to have his deed corrected so as to ex-
interruption of his business and its damage press the mutual intention of the parties
by the changed condition of the locality. thereto.-Probett v. Walters, (Mich.) 320.*
6. On intervention in a suit to cancel a note
isfactory cause be shown for the delay.-Id.
11. A bill of review, attacking a decree of
foreclosure upon the ground that it was ren-
dered for $50 too much, should be dismissed,
the amount being insufficient, in Michigan, to
give chancery jurisdiction.-Id.
ERROR, WRIT OF.
See, also, Appeal.
stipulating for attorney's fees in case of a
suit, and a mortgage given to secure it, it was
agreed that plaintiff should pay intervenor a
certain sum agreed upon as his liability on
the note, and that intervenor should pay de-
fendant M. such amount as the court should
decide he was entitled to as a bona fide hold-
er of the note. Plaintiff paid intervenor the
amount, and the note and mortgage were or-
dered to be delivered up and canceled. The
court then found in favor of M. for a certain
Service of summons in error on the attorney
amount, but disallowed him attorney's fees. of record who tried the case below is suffi-
Held no error, as by the agreement the inter-cient, though he may not appear in the case in
venor stipulated to pay M. only the amount the supreme court.-Kinney v. Hickox, (Neb.)
found due him by the court.-McCormick v.
Lundburg, (Iowa,) 409.
7. In an action to recover a sum of money
on a written agreement, on cross-petition al-
leging mistake of fact and praying for gener-
al relief, it appeared that plaintiff's intestate
was a general agent of defendant; that on his
death, leaving his accounts unsettled, plaintiff
and defendant arranged a settlement which
showed a balance due to decedent's estate;
that an entry in defendant's books was, by
mistake, included in the settlement, and in
consequence the balance due was increased to
the amount in controversy. Defendant wrote
plaintiff six days after the agreement was
signed claiming an error in the settlement;
two days later plaintiff answered that he knew
nothing of defendant's books; that he based
his views on intestate's books. The settle-
ment allowed plaintiff a considerable sum
more than he was entitled to as shown by said
books. Held, that there had been a mutual
mistake, and defendant was entitled to relief.
-Worsley v. Burlington Ins. Co., (Iowa,) 161.*
8. Defendant, in an action for balance of ac-
count alleged to be due under a written agree-
ment, filed a cross-petition alleging mistake
of fact, and praying for general relief. It ap-
peared that there were two balances in favor
of plaintiff,- -one on an account for items due,
and another for those not due; that the bal-
ance on the first account (which was the
amount sued for) was due owing to one item
being credited by mistake; that relief as to
the first account was only asked. Held, that
defendant was entitled to deduct the amount
so credited by mistake from the balance com-
ing to plaintiff on the latter account.-Id.
Bill of review.
9. A bill which, although filed as an origi-
nal bill, is in effect a bill of review, not sworn
to, nor accompanied by a sworn showing, filed
after long delay, without leave or security,
as required by rule of court, should be dis-
missed.-Sanford v. Haines, (Mich.) 777.
10. A bill of review should be dismissed
when it appears that the plaintiff therein
knew of the decree complained of for six years,
and of the sale thereunder for two years be-
fore filing said bill, and acquiesced therein, no
reason being shown for such delay, as under
the rules of court a bill of review must be filed
within the time fixed by law for appealing,
unless for newly-discovered evidence, or sat-
The leaving of a deed by a grantor in the
hands of his agents, awaiting the arrival of
certain funds of the grantee, does not make
such deed an escrow.-Wier v. Batdorf, (Neb.)
22.*
Under a deed to the trustees of a Baptist in-
stitution conditioned that the property shall
never be subject to nor sold for any indebted-
ness of the institution, and if the Free-Will
Baptists shall fail to keep a good school on
said premises, then they shall be sold, and
$1,500 of the proceeds be given to the Free-
Will Baptist Church of Wilton, provided they
erect a church within three years; if not, to
revert to the heirs, if the property is sold un-
der foreclosure of a mechanic's lien, to which
said trustees are not made parties, and the
school thereupon goes into the hands of an-
other denomination, the heirs are not thereby
entitled to possession, since such a sale passes
no title. Butterfield v. Wilton Academy,
(Iowa,) 390.
by the justice, and not by the district court of
K. county.-McBride v. Lathrop, (Neb.) 32.
3. A creditor, whose debt arose under a
contract with an agent, having represented
to the principal that he made no claim against
it for such debt, but that he had charged the
same to the agent, and that it had been paid,
will not be estopped from subsequently assert-
ing his claim against the principal, where
there is evidence to show that the principal,
in offering to settle with the agent prior to
such representations, considered such debt as
unpaid, and that the final settlement was in
accordance with such offer.-Guest v. Bur-
lington Opera-House Co., (Iowa,) 158.*
4. Where, on a sale of personal property on
execution, the sheriff made the sale in terms,
but without authority, "subject" to a certain
mortgage, the execution creditor, having pur-
chased the property under that condition, can-
not deny its effect.-Cable v. Byrne, (Minn.)
See, also, Deposition; Witness.
Competency and admissibility, see Assump-
sit, 5, 6; Breach of Marriage Promise, 3-5;
Damages, 5, 6; False Pretenses, 5, 6;
Fraudulent Conveyances, 6-12; Homicide,
10-15; Intoxicating Liquors, 17-21; Rape,
2-7; Replevin, 8, 9; Sale, 6-15; Seduction,
1, 2; Trover and Conversion, 3, 4.
In criminal cases, see Criminal Law, 20-22.
Opinion evidence, see Wills, 3, 4.
Reception of evidence, see Trial, 3-6.
Rulings on evidence, see Appeal, 30.
Weight and sufficiency, see Appeal, 28, 29.
Declarations and admissions.
1. In trover, where plaintiff alleges that he
is entitled to certain chattels on a certain
farm, and to crops raised thereon, on consid-
eration of his supporting his parents during
their lives, evidence by defendant that the
father, since deceased, told defendant and
other people, in plaintiff's absence, that the
property belonged to him (the father) is not
admissible.-Carr v. McCarthy, (Mich.) 241.
2. Where plaintiff cut logs on land belong-
ing to R., it is proper to exclude evidence as
to what one M., a foreman of R., but having
no authority to bind him, said after the tres-
pass was committed, as to the boundaries of
R.'s and plaintiff's land, in order to show
plaintiff's good faith, especially where it does
not appear that plaintiff was informed of
what M. had said.-Gates v. Rifle Boom Co.,
(Mich.) 245.
an article converted, a witness, familiar with
such value at a neighboring market town, is
competent to express an opinion.-Acrea v.
Brayton, (Iowa,) 171.*
6. In an action for personal injuries, it is
competent to ask a witness, who had worked
with plaintiff before and after the accident,
what was plaintiff's appearance, and whether
he could work as before the accident, or not.
-Winter v. Central Iowa R. Co., (Iowa,) 154.*
Parol evidence.
claimant having notice of the mortgage, parol
7. As between the mortgagee and an adverse
evidence is admissible to show that the mort-
gagor, at the time he gave the mortgage, had
in, and that those in question are of that num-
just the number of wagons mentioned there-
ber.-Clapp v. Trobridge, (Iowa,) 411.
in some particulars, misdescribes the note is
8. Where the validity of a mortgage which,
attacked by a creditor or subsequent pur-
chaser, parol evidence is admissible to show
the real consideration, and what note was act-
ually intended to be described. It is not nec-
essary to the admission of such evidence that
the mortgage be first corrected.-Nazro v.
Ware, (Minn.) 359.*
Competency.
9. Plaintiff's intestate was killed by falling
into an excavation extending beyond the side-
walk, at night. The coroner who attended the
scene of the accident testified that when he
reached the spot he noticed that planks had
been laid over the excavation, and that an
electric light near by made them look like a
stone sidewalk corresponding with the real
walk. Counsel, desiring to ascertain the dis-
tance he was from the excavation when the
sidewalk appeared continuous, asked him:
"Did you not make this statement before the
coroner's jury: 'In walking up G. avenue on
this side,-when you got within ten feet of
this excavation, by reason of the stone wall
and mason's platform built out on the G. side
beyond the walk, consisting of horses and
plank laid across, as it was last night,—as a
person approached it the appearance would be
exactly that of a stone sidewalk?" Held, that
the court did not err in admitting this. The
question was evidently to refresh the witness'
memory, and contained nothing prejudicial to
defendant.-Stone v. Standard Life & Acci-
dent Ins. Co., (Mich.) 710.
10. Plaintiff introduced witnesses to show
the appearance of the walk under like circum-
stances and surroundings on the night suc-
ceeding the accident, and these gave testimony
similar to those who observed the appearance
on the night of the accident. Held, that this
evidence was not incompetent as relating to
facts observed after the time of the accident.
3. In an action for personal injuries, state-
ments by plaintiff, made long after the acci-
dent, that he suffered pain, and could not per-
form certain work, are incompetent.-Winter-Id.
v. Central Iowa R. Co., (Iowa,) 154.
11. In an action by an administrator against
the decedent's father to recover the value of
property alleged to have been wrongfully con-
verted by the father, the defense was that he
had bought the property of the son before his
death. Defendant introduced evidence to show
that his relations with his son were friendly,
and that his son was indebted to him. Held,
that defendant could not object to rebutting
testimony upon the same point, although the
whole of the testimony was irrelevant to the money, but applied the amount of his bid on
issue.-Ransom v. Bartley, (Mich.) 287.
1. A general exception of one sentence to a
charge to a jury of ten paragraphs of instruc-
tions, made as memorandum at the close of
the charge, "that the defendant excepts to
each and every one of the above instructions
separately," is clearly insufficient to permit
an examination of the instructions.-Brooks
v. Dutcher, (Neb.) 780.
Necessary contents.
2. Copies of the contents of documents re-
ceived, or offered and rejected, on the trial of
a cause in the court below, must be inserted
in or attached to the case settled by the trial
judge. It is not enough that the settled case
shows documents to have been received, or
offered and rejected, and that the clerk sends
here, as part of his return, copies which he
certifies to be copies of those so received, or
offered and rejected.-Blake v. Lee, (Minn.)
EXECUTION.
See, also, Attachment; Garnishment.
Issuance and validity.
1. A judgment debtor having died after the
judgment had been docketed and become a
lien upon real estate, the judgment creditor
may enforce his judgment by a sale of such
real estate on execution, after the lapse of one
year, as provided by Gen. St. Minn. 1878, c. 66,
$298, and after the time set for payment of
debts under chapter 53, § 15, notwithstanding
the fact that he had presented his judgment
for payment in the course of the administra-
tion of the estate of the deceased in the pro-
bate court.-Fowler v. Mickley, (Minn.) 634.
Levy on warrant.
2. A warrant for teacher's wages in the
hands of the clerk of the school board, before
delivery or acceptance, is not the property of
the teacher, and a levy thereon under execu-
tion against her fixes no liability on the school
board.-Richardson v. Independent School-
Dist. No. 1, (Dak.) 553.
Sale.
3. The conditions of an execution sale an.
nounced at the opening affect a purchaser,
though he did not come on the ground until
after the announcement, and though the sale
had been suspended for a short time.-Cable
v. Byrne, (Minn.) 620.
his judgment, was admissible, notwithstand-
ing the statement of the sheriff in his report
of sale that he had received the money, and
paid it over to the attorney for the plaintiffs
in the action.-Id.
Distribution of proceeds.
6. The judgment directed that the proceeds
of the property sold should, after payment of
a mortgage thereon, be applied pro rata on
the several judgments of the plaintiffs against
the mortgagor. One of the plaintiffs bid in
part of the property, and received a sheriff's
certificate, and applied the whole amount of
his bid as a payment on his judgment; the
objected. Held that, in a collateral action,
owners of the other judgments never having
in which he is sought to be charged with this
amount as a payment on his judgment, he
cannot object to being so charged because it
was more than his pro rata share under the
terms of the judgment.-Id.
Satisfaction.
husband and wife, and execution placed in
7. A labor judgment was rendered against
the hands of a constable, who, accompanied
by the plaintiff's guardian and attorney, went
to the residence of the judgment debtors, and
accepted a note from them, due in nine
months, and secured by a chattel mortgage.
The constable was directed by plaintiff's at-
torney to return the execution without a levy,
no fraud being shown. Held that, while a
jury might be justified in finding the judg-
ment satisfied, at least the credit was ex-
tended nine months, and a levy made six
weeks after taking said note and mortgage
was unauthorized. Carper v. Woodford,
(Neb.) 39.
Voluntary payment.
8. An execution issued on a dormant judg-
ment before the justice of the peace, though
voidable, is not void, and money paid in dis-
charge thereof, either with or without pro-
test, is a voluntary payment not recoverable
back by action.-Gerecke v. Campbell, (Neb.)
847.*
Supplementary proceedings.
9. Where a judgment debtor was examined,
and an order was issued to his wife, and aft-
erwards to him, to pay over certain money,
and, on his failure so to do, an order of com-
mitment for contempt was issued against
him, such debtor, having been present in
court through all the proceedings, and having
been given a full and fair hearing, is not en-
titled to have the proceedings set aside, on
4. Where a sale of real estate was made by the ground that he was not served with a
a sheriff under a judgment of court, and sub-written order, signed by the judge, as re-
sequently confirmed, it will be presumed,
nothing affirmatively appearing to the con-
trary, that a transcript of the judgment was
delivered to the sheriff, as required by Gen.
St. Minn. 1878, c. 81, § 30.-Clawsen v. Whit
ney, (Minn.) 759.
5. Parol evidence that a judgment creditor,
who bid in a part of the premises, paid no
quired by Code Iowa, §§ 3146, 3147.-McDon-
nell v. Henderson, (Iowa,) 512.
10. Under Code Iowa, § 3136, providing that
an order for the appearance and examination
of a judgment debtor may be obtained on affi-
davit that the debtor has property which he
refuses to apply to the satisfaction of the
judgment, such affidavit is not necessary on a
second examination, which is but the contin-
uation of a former one.-Id.
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