Omaha daily bee., 1896-09-18

court, upon which was based a former
judgment of reversal scarborough against
Myrick, &c n. w r.. 500. being shown by
the amended transcript 10 have resulted
from an error in the transrribing OF the
proceedings below ana the other questions
presented having. Oh the former hearing
Eeen resolved in favor of the defendant in
error: the judgment of the district court
will be affirmed. .
County Commissioners Lancaster County.
Error from Ii ncaster county. Anirmed.
Opinion by Judge Harrison.
In an action for mandamus the applica-
ton for the writ shall DE by motion sup
ported by, an affidavit in. which the facts
ings in civil actions under the code are or
dinarily, is insufficient Wen depended upon
plication thus made should be denied and
"f Dd1idso the a MaTIGFii crosby MsRy 2So Appeal from
Douglas county. Affirmed. Opinion by
Judge Harrison.
Fraud is never presumed, but must be
clearly proved in order to entitle a party to
relief on the ground that it has been prac-
2. The finding of a trial judge based upon
conflicting evidence when there is sufficient
evidence to support it will not be dis
overall against M&sshans. Error from
Judge Harrison.
Objection that the appralsement made as
a part of the proceedings in a judicial sale
is too low or too high muat be made. and
with a motion to vacatc the appraisement,
be filed in the cause in which the sale is
about to be effected, before the sale.
g0gght against Fl Fo X ,s aS Neb'' $50;
Critics against Hart. Error from Merrick
county. Affirmed. opinion by Judge Har-
rison.
The property of an insolvent, either per-
son or partnership. is not a trust fund in
the hands OF the debtor in favor Of cred
fund" The creditors do not merely be-
cause of such relation to the debtor have
any recognizable or enforceable lien on
the property of the debtor, nor is there any
trust character attaching to it which in
terfcres with a bona fde sale of it by the
debtor.
2. A firm heavily indebted at the time
may sell a large portion of It's property,
and receive in consideration therefor the
promissory notes Of the purchaser. and
dence that the sale was fraudulent. They
are but facts to be considered in connec-
tion with all other facts and circumstances
adduced in evidence on the trial, on the
question of fraudulent or good faith char
acter of the transfer.
3. The question of fraud in a transfer of
property, as affecting the rights of the
creditor of the vendor, is one of fact, to be
determined In each case from the evidence
ing on such question Is based on conflicting
evidence it will not be disturbed, unless
Spurck against Dean. Error from Hall
county. Affirmed. Opinion by Judge Har-
rlSOn.
A bill Of exceptions should be authenti-
Gated by the certificate of the clerk of the
trial court to entitle it TO examination and
consideration in the supreme court.
q. Questions of fact and upon conflicting
testimony. are to be decided by the trial
court, and a verdict will not be set aside
on the ground of the want of sufficient
evidence to support 1t, unless the want is
so great as to show that the verdict is
GrundradG' &c Hebb, S22SM. "" "s
3. Where, in an action to recover an
wages for work and labor performed at an
agreed price, there Is "A conflict in respect
to the amount agreed upon, evidence OF the
value, at the time of the contract of the
work performed is competent and admls-
johnson against Milwaukee & Wyoming
Investment Company. Error from Merrlck
Reversed and remanded.
Errors IN respect to glyinf instructions
for a new trial, If assigned in group and
any one OF the instructions against the as
assignment must be oVerruled. Spears
against Chicago BpEliRgt9 % & Quincy Rail
2. when the special findings of facts
are inconsistent with the general verdict,
the former control the latteTi ana the court
2Sl, Code of Civil Procedure,
3. Where there are several special find
ings OF facts and among them one which
can but be and is a conclusion or an in
fsp9 SI fssti GFa wron from W S9G Ss STsra and roa 1T is
!, The Tatidcation by a principal OF the
unauthorized act OF an agent may be either
express or implied. Taylor against Con-
nor, 4 Miss, 722.
s. The acceptance or retention by the
after knowledge Of the facts, OF
the fruits of an unauthorized act of an
agent, is a ratification of the agents act,
and 1t relates back to the time of the act
and makes 1t as II the agent had been en-
powered, to perform 1t az it's date, and the
Is bound in all respects as If he
himself had been the actor. Hughes
against Ins. Co, 30 Neb., G27.
G. II the principal desires to repudiate
the unauthorized act OF his agent, he must
AS soon as ne acquires knowledge OF the
facts, return, or tender "A return, OF any
benefits by him received as the proceeds
them.
T. Proof OF the ratification by the prln-
cipal OF the unauthorized acts OF the agent |
was competent in an action Of repleyin