3. Where the caption of information was, "The State of
Nebraska," and prosecution thereunder was conducted in
the name of "State of Nebraska," this was held to be suf-
ficient compliance with the provisions of Sec. 24 of Art. 6
of the Constitution, which requires that "all process shall
run in the name of the state of Nebraska, and prosecu-
tions shall be conducted in the name of the state of Ne-
braska." Id............
4. Mittimus entitled "The State of Nebraska,
County" is not void. State v. Banks.............
5. Where a party has been duly charged with making
threats to murder a certain individual, and has had an ex-
amination before a justice of the peace, and been required
to enter into a recognizance for his good behavior and to
keep the peace, and it is clearly shown that the threats
were made by the accused, the court will not on habeas
corpus discharge him. Id.
6. Depositions in criminal cases; judge has power to pre-
scribe method of taking; witnesses may be further exam-
ined. Gandy v. State .......
7. Prosecuting attorney endeavoring to dissuade witnesses
from testifying, Held, Guilty of misconduct. Id.............. 717
8. Names of witnesses should be endorsed on information
before day set for trial. Id...........
9. Presence of bailiff in jury room during their deliberations,
Held, To vitiate verdict. Id..........
Misconduct of jury in reading from copy of Compiled
Statutes, Held, Sufficient to vitiate verdict. Harris v.
State.
Will construed, and Held, That husband took no estate by
curtesy in land in question. McCulloch v. Valentine......... 215
1. Rule of, in cases of trespass de bonis asportatis, by mort-
gagee of goods. Hamilton v. Lau.....
2. In case of trespass. Everton v. Esgate..........
3. In case of ejectment not awarded for use and occupation,
where defendant is not in actual possession. Griffey v.
Kennard............
4. In estimating damages in cases of libel, wealth of defend-
ant should not be considered. Rosewater v. Hoffman........ 222
5. May be recovered under prayer of petition for general
relief. Everton v. Esgate........
6. In action on bond conditioned that the principal will be
responsible as guarantor of the payment of certain notes
sold by him to obligee, measure of damages is the aggre-
gate or face value of such notes negotiated and delivered
to the obligee, within the time and the terms and condi-
tions of the bond. Lombard v. Mayberry............
Debtor and Creditor.
A creditor of an insolvent may obtain from him payment in
full of a bona fide debt, and such payment may be made in
property, provided its fair value does not exceed the
amount of the debt, and such creditor will not for that
cause alone be chargeable with intending to delay or de-
fraud the creditors of the debtor. Elwood v. May Bros..... 373
See REAL ESTATE.
Witness to deed must be without a certain, legal inter-
est therein. Child v. Baker...........
2. Rule of construction; intention of grantor governs. Mc-
Culloch v. Valentine........
3. 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 a deed an escrow. Wier v. Batdorf... 83
4. Where a contract for the sale of real estate is entered
into by parol, and a deed thereupon made by the grantor,
and left in the hands of his agents to await the arrival of
the money of the grantee, Held, There having been no deliv-
ery of the deed, that it was not available as a memoran-
dum of a contract; nor would a certain mortgage and notes
executed by the grantee, but not delivered, constitute part
of such memorandum. Wier v. Batdorf.............
In criminal cases, manner of taking prescribed by judge;
parties may further examine and cross-examine witnesses.
Gandy v State.......
1. In giving or withholding from jury questions for special
findings of fact.
Floaten v. Ferrell.........
2. In granting new trial. Smith v. Groves.........
Dismissal of Action.
Notice of motion to dismiss for want of prosecution must be
served upon adverse party; action dismissed without no-
tice, reinstated. Berggren v. Berggren......
Courts of general jurisdiction have power to set aside decree
of divorce obtained by fraud. Wisdom v. Wisdom............ 551
Docket.
1. Defendant not being in actual possession of land, nor
receiving any profits therefrom, land being uninclosed and
unimproved, no damages can be awarded for use and occu-
pation. Griffey v. Kennard....................................................
2. New trial granted on the ground of newly discovered
evidence. Smith v. Groves........
Where plaintiffs claim through their father, deceased,
his death and their minority will not arrest the running
of the statute of limitations. Hardy v. Riddle................. 670
Elections.
1. Upon canvass of certain election returns, board of can-
vassers received evidence and changed the returns by
striking therefrom two votes said to have been illegally
cast. Held, That they had no authority to change the
returns, and mandamus would lie to compel them to can-
vass the returns as received. State v. Wilson.................. 139
2. Mandamus does not lie to compel canvassing board to
canvass a return of election, which during its transmittal
to them has been opened and altered. State v. Kavanaugh 506
Embezzlement.
Attorney at law not liable for embezzlement of client's
money until lien discharged. Van Etten v. State........ 734
Eminent Domain. See RAILROADS.
1. Verdict for damages to land owner for right of way of
railroad will not be set aside if based on testimony.
Omaha Belt R. R. Co. v. Johnson.......
2. Question of damages one for jury. Id...............
The rule that he who seeks equity must do equity will be
applied wherever the adverse equity grows out of the very
transaction before the court, or where it is so connected
with the subject-matter of the action as to be presented
in the pleadings and proofs, with full opportunity to the
adverse party to explain or refute the claims. Loney v.
Courtnay.........
580
Escrow. See DEED.
Estoppel.
1. A party who knowingly, though it may be done pas-
sively, permits another to purchase land and expend
money thereon, under the supposition that he is the owner,
and without such party making known his own claim,
will not be permitted afterwards to exercise his legal
rights against the purchaser. Forbes v. McCoy................ 702
2. In case stated, Held, That plaintiff was estopped to claim
under the mortgage sought to be foreclosed. Id.............. 702
3. Where contract is entire but one action can be main-
tained thereon. Kahn v. Kahn.........
4. In case stated, where intervenor did not question the
legality of contract, but sought to obtain the benefit of
the same and secured a judgment, it was Held, That he
could not afterwards insist upon illegality of contract.
Russel v. Rosenbaum.........
1. Written contract admissible in evidence under a general
allegation that the party contracted, without indicating
how. Hamilton v. Lau.......
2. Declarations of seller, made after sale and delivery, not
admissible against purchaser. Rogers v. Thurston ............................
3. Admission of memoranda to refresh recollection of wit-
ness; general rule. Schuyler National Bank v. Bollong...... 825
4. In case stated, Held, That the negotiable instruments
were admissible in evidence for the purpose of fixing the
amount of recovery without proof of their execution,
although such execution was denied by the answer. Lom-
bard v. Mayberry.....
In creditor's bill, Held, That evidence showed property
not subject to the payment of judgment. Callahan v.
Powers........
In case stated, Held, That evidence tending to show that
the real estate in question was necessary to said company
was properly excluded. C., B. & Q. R. R. Co. v. Hull...... 740
7. Burden of proof on plaintiff corporation to show that it
was and is a corporation as alleged in petition. Aultman,
Miller & Co. v. Leahey...........
8. Burden of proof on defendant so show that machine,
price of which is sued for, was worthless, he having ad-
mitted sale and purchase and price agreed to be paid. Id. 289
9. General denial in answer of sureties upon building con-
tract; burden of proof on plaintiff to show that labor
and material furnished to complete building were within
the terms of contract and necessary to its fulfillment.
Plummer v. Shellhorn..........
10. In cases of murder in the first degree; burden of proof
is on the prosecution. Beers v. State.........
Where usury in original transaction is proven, burden
of proof is on purchaser to show bona fides of his purchase.
Knox v. Williams....
12. Presumption that judge signing order of attachment
was judge of the county where the order was made.
Reed, Jones & Co. v. Bagley......................
13. Presumption that check of firm, given by one partner,
was on account of the partner's interest from profits in
the business of the firm. Warren & Co. v. Martin........... 273
14. Where record shows discharge of bankrupt, presumption
is that assignment was executed. Hale v. Christy............ 746-
15. In action on policy of insurance, testimony on behalf of
company tending to show that certain statements made by
the assured and indorsed on the policy were false, should
be admitted. State Ins. Co. v. Jordan......
16. In case of attachment. Warren v. Barsby................
17 In cases of libel, wealth of defendant should not be con-
sidered. Rosewater v. Hoffman........
18. In cases of injuries to person by railroad; evidence of
negligence in not blocking frogs and switches. M. P. R.
R. Co. v. Lewis.........
19. In cases of bastardy. Ingram v. State..........
Executor. See ADMINISTRATION OF ESTATES.
1. Property in hands of garnishee not liable to sale on exe-
cution against debtor. Northfield Knife Co. v. Shapleigh... 635
2. Injunction lies to restrain such sale.
Forcible Entry and Detention.
1. Where defendant pleaded that he had erected certain
improvements under an agreement with the owner that he
would pay him the actual cost of the same, and that in
pursuance to said agreement he offered to take $400 for
said improvements, which the owner refused to pay, Held,
Not to constitute a defense. Connolly v. Giddings............ 131
2. Said contract was not void under the statute of frauds,
and an action could be maintained thereon and the value
of the property recovered. Id................
3. While justice of the peace or county judge cannot
decide controverted questions of title, yet he may receive
deeds, mortgages, or other evidence for the purpose of de-
termining the right of possession. Connolly v. Giddings..... 134
4. Bond on appeal, in proper form, signed by at least two
sureties, duty of justice to approve the same.
Clark.........
Sureties need not sign bond in presence of justice; if
justice require proof of genuineness of signatures, or of
sufficiency of sureties, he should make it known when
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