When did you receive the information which led you to bring this creditor's bill? Answer. In the fall of 1883. Q. Did you have any knowledge of the facts set forth in the petition before that time? 4. No, sir. Q. Did any of the members of your firm, to your knowledge? A. No sir, they did not." On cross-examination the witness further testified: "Q. You say you knew nothing of the facts set up in this bill until the fall of 1883? A. Yes, sir. Q. You knew you had an indebtedness against James W. Davis & Co. ? A. Yes, sir. Q. You knew you had got judgment against them? A. Yes, sir. Q. You knew Mrs. Davis had the title to this land? A. I did not know anything about it until Mr. Hall came to me and told me. Q. You did not know Mrs. Davis had this land? A. I don't remember whether I knew anything about it or not. Q. You knew where Mr. and Mrs. Davis lived? A. I knew they lived out there. Q. You knew there was considerable land that they were living on, didn't you? A. I knew there was some land out there they claimed to own, but I didn't know anything at all about that until Mr. Hall came and told me. Q. Didn't know anything about what?-about their living there? A. About that we could make that judgment against them. Q. What fact was it you learned in 1883? A. Mr. Hall came to me and told me that he thought he had a good way of making that claim I had against James W. Davis and associates. Q. That was what you learned then? A. Yes, sir. Q. Was this fact you referred to when you said you never learned it until 1883? A. Yes, sir. Q. The other facts you knew about,-your having a judgment, and about Maj. Davis and Mrs. Davis living on the land out there, and about their having a considerable quantity of land and the title being in Mrs. Davis,-you knew all that? A. I knew they owned some land out there. I didn't know what shape it was in until Mr. Hall came and told me about it. Q. Until he came and told you he could make the amount of that judgment? A. Yes, sir. Q. That is the fact you learned in 1883? A. Yes, sir. Q. The other facts in the petition you knew long before? A. What facts do you have reference to? Q. Those you have stated in the petition and have sworn to,-you knew them before 1883, except the fact that Mr. Hall told you that he could make the amount of your judgment, and that was the fact that you learned,-that was the new fact? A. Yes, sir." This is the force of the plaintiff's testimony. The statute (section 12, Civil Code) provides that an action for relief on account of fraud shall be commenced in four years, but the cause of action shall not be deemed to have accrued until the discovery of the fraud. This section was construed by this court in the case of Parker v. Kuhn, 21 Neb. 413, 32 N. W. Rep. 74, and the construction given in the syllabus of the report is that "an action for relief on the ground of fraud may be commenced at any time within four years after a discovery of the facts sufficient to put a person of ordinary intelligence and prudence on an inquiry which, if pursued, would lead to such discovery." It may be said, without doubt, that there is no evidence of the discovery of any fact whatever by the plaintiffs within four years next before the commencement of the suit. Indeed, the only occurrence testified to by the plaintiff as a witness, as having come to his knowledge within the statutory time, is that his attorney, in 1883, told him that "he thought he had a good way of making that claim I had against James W. Davis and associates." If the land was paid for with the money of James W. Davis, either individually or associated with others, and the title taken in the name of Elizabeth Davis, to defraud creditors, the entire transaction was completed as early as 1874. It does not appear that the plaintiffs discovered any fact in reference to the transaction subsequent to that year. The conclusion, then, is that at the date of the action any claim which the plaintiffs might once have had for relief growing out of the alleged fraudulent character of the transaction was barred by statute.

The evidence upon the third point, as to the insolvency of Davis at the time of the purchase of the land, or the payment for it, or the ownership of the

money invested, will not be considered, as, whatever might be our conclusion upon such examination, it could not relieve the case of the bar of the statute. The judgment of the district court is affirmed. The other judges concur.

WARREN et al. v. BARSBY.

(Supreme Court of Nebraska. November 15, 1888.)

ATTACHMENT-FRAUD-ATTORNEY AND CLIENT-CONVERSION BY ATTORNEY.

A. and B. were in partnership in buying and shipping grain from Fairmont and Geneva, in Fillmore county, to the city of Chicago, the residence of A. A. sent his agent to Fairmont, who, finding that B. was improperly using the money furnished by A. for the purpose of carrying on the partnership business, employed an attorney, and in B.'s absence ordered the local banks to pay no more of B.'s checks until a settlement of the partnership affairs was made. B. retained defendant as his attorney, to protect his interest in the settlement, and in any litigation which might follow. A basis of settlement was agreed upon subject to the approval of A., and which was to be submitted to him by B. and A.'s agent in Chicago. Prior to B.'s departure for Chicago he received a check for $500, the property of the firm, and delivered it to defendant, his attorney, who converted it into money. There was evidence from which the district court could find that A.'s agent, while in Fairmont, agreed with defendant that A. would pay the fees due defendant for his services in case the settlement was made. The settlement was approved by A., and the partnership continued. In an action by A. against defendant for the $500, an attachment was procured upon the ground that the debt was fraudulently contracted by defendant; which attachment was, on motion of defendant, discharged upon the ground that the proofs failed to sustain the allegations of the affidavit. Held no error. (Syllabus by the Court.)

Error to district court, Fillmore county; MORRIS, Judge.

Action by N. H. Warren & Co. against John Barsby for money had and received. From an order discharging an attachment plaintiffs bring error. J. P. Maule, for plaintiffs in error. J. W. Eller, for defendant in error. REESE, C. J. The principal action in this case was instituted in the district court of Fillmore county by plaintiffs in error against defendant in error, for the recovery of the sum of $500, alleged to be due plaintiffs from defendant. The allegations of the petition were to the effect that the plaintiffs and one James Peabody constituted a partnership under the firm name of James Peabody & Co., the purpose of which was buying and shipping grain at Fairmont and Geneva, in Fillmore county. That the capital with which the business was carried on was furnished by plaintiff. That on and prior to February 1, 1886, Peabody was using money furnished by plaintiffs, for the purpose of buying grain, in enterprises outside of the partnership business, and for his own benefit. They employed an attorney, who in connection with their agent, who had come from Chicago, their place of business, called upon Peabody for the purpose of ascertaining the facts, and effecting a settlement. That defendant, who was an attorney, was employed by Peabody to assist him in the matter then in hand, and in any litigation which might follow. That, pending these negotiations, Peabody received a draft or check from the firm of Richardson, Baily & Baily, payable to James Peabody & Co., and which he indorsed and delivered to defendant, who converted the same to his own use, and refused to account to plaintiffs for the money received thereon. That at the time defendant received the check he had full knowledge of the condition of the business of James Peabody & Co., and that the money represented by the check belonged to the firm. That prior to the commencement of the suit the partnership of James Peabody & Co. had been dissolved, and all of its assets belonged to plaintiffs. An affidavit for an attachment was filed, in which it was alleged that the suit for the $500 had been instituted; that that amount, with interest, was due for money had and received by defendant for plaintiffs; and that defendant fraudulently contracted the debt. An attachment was issued, and certain money, due defendant, was garnished in the hands of his debtors.

Defendant then moved to discharge the attachment, for the reason that the statements of facts set forth in the affidavit, on which the attachment was issued, were untrue. The motion to discharge was submitted to the district court upon a number of affidavits, where it was sustained, and the attachment discharged. Plaintiffs bring the cause, so far as the attachment proceedings are concerned, to this court for review, by proceedings in error. The question of fact having been submitted to the court upon testimony more or less conflicting, it only becomes necessary to inquire whether enough is shown, on the part of the defendant, to sustain the decision of the district court. There was evidence which would sustain a finding of the district court that, during the temporary absence of James Peabody from Fairmont, the agent of the plaintiffs appeared there, and notified the local banks to pay no more of Peabody's checks until a settlement could be had. That upon Peabody's return he retained defendant as his attorney to assist in the settlement, and protect his (Peabody's) rights. That, in a conversation between plaintiffs' agent and defendant, plaintiffs' agent stated that plaintiffs would pay defendant his reasonable attorney's fees, and requested that they be made as reasonable as possible, under the circumstances. A settlement was agreed upon, subject to the approval of plaintiffs, who were commission merchants in the city of Chicago; and plaintiffs' agent and Peabody were about starting to Chicago to submit the settlement to plaintiffs for their approval or rejection. That about this time, and before their departure for Chicago, Peabody received the check referred to, informed defendant of the fact, and requested his advice as to what use should be made of it. That defendant stated that, for the present at least, the entire business of the partnership had been suspended, whereby Peabody's revenues were cut off; and that, if litigation should follow, money would be necessary for the payment of such fees and expenses as would have to be met; and suggested that the check be placed in his hands for that purpose, which was done. The plan of said settlement was approved by plaintiffs, and the partnership continued until the expiration of the term for which it was formed. That, in a subsequent settlement between Peabody and defendant, it was agreed that defendant was entitled to a compensation of $400. This was deducted from the amount realized from the check, the remaining $100 being left in defendant's hands, but which was afterwards appropriated in payment of other claims against Peabody.

The question as to whether or not plaintiffs could recover in the principal action, on these facts, is not before us. The only question presented by the record is whether, upon a finding by the district court of the facts above stated, its decision that defendant had not fraudulently contracted the debt should be reversed. While it is not quite While it is not quite clear to our minds as to what the decision of the district court might have been, or perhaps should have been, we do not feel that we would be justified in reversing the decision made. Plaintiffs in their affidavits aver that their agent, by whom the agreement or promise of payment of fees was alleged to have been made, had no authority to make such agreement. This is also stated in the affidavit of the agent, and in which he also denies having made the agreement sworn to by defendant. As we have said, there was sufficient to sustain the finding of the court that the agreement or promise was made. If that was true, the question of the authority of the agent to make it would become immaterial, so far as this inquiry is concerned, unless it was shown that defendant knew of the want of such authority; for, if he relied upon it, it could not be said that he fraudulently contracted the debt, even though the agent might have had no authority to make the promise. Error not appearing atfirmatively upon the face of the record, the decision of the district court upon the motion to discharge the attachment is affirmed. The other judges concur.

STATE ex rel. LANHAM v. BABCOCK.

(Supreme Court of Nebraska. November 14, 1888.)

STATES AND STATE OFFICERS-WARRANTS-APPROPRIATIONS.

Under the act approved March 31, 1887, to provide for "selling of all unsold lots and lands belonging to the state of Nebraska lying and being in the city of Lincoln, and to provide for the appropriation of funds arising from said sale," a sale of the lots and lands mentioned was had, the amount of the sale being $78,878; $30,995.33 of which was cash in hand, $23,928.17 in notes due in one year, and $23,946.52 in notes due in two years. Held, that by the terms of the act there was an absolute appropriation of $78,-78; upon which warrants could be drawn to carry into effect the purpose of the act. (Syllabus by the Court.)

Mandamus.

Application for writ by John Lanham to compel H. A. Bab

cock to draw a warrant on a fund in favor of relator.

Charles O. Whedon, for relator. H. A. Babcock, for respondent.

MAXWELL, J. This is an application for mandamus to compel the defendant to draw a warrant on the capitol building fund in favor of the relator. The relator alleges in his petition "that by virtue of the provisions of an act of the legislature, entitled An act to provide for the selling of all unsold lots and lands belonging to the state of Nebraska, lying and being in the city of Lincoln, and to provide for the appropriation of funds arising from said sale,' approved March 31, 1887, the board of public lands and buildings of said state, in the year 1887, after advertising as required by said act, and in compliance with law, sold as by said act required, the said lots and lands in said act mentioned for the sum of $78,878.00; of which amount $30,995.33 was paid in cash, $23,928.17 in notes due in one year, and $23,946.52 in notes due in two years. That after said sale, and after the capitol building had been inclosed, the said board of public lands and buildings, after due advertisement for proposals, awarded to affiant the contract for laying out and improving the capitol grounds, on behalf of the state," etc. The relator then sets out a copy of his contract, and alleges "that after entering into said contract, and giving a bond for the faithful performance thereof, affiant entered upon said work, and the same is now in progress; that affiant has received under said contract several estimates for work done and material furnished, which have been presented to the auditor of public accounts, who has drawn his warrants upon the capitol building fund for the several amounts thereof; that for material furnished, and labor performed in the month of September, 1888, an estimate has been prepared, and allowed by the superintendent of said work, and certified as being correct by said superin-tendent, and approved by the secretary of state and the commissioners of public lands and buildings, as president and secretary of the capitol building board; that said account is just and correct, and is wholly unpaid, and there is due from said state to affiant, upon said estimate for work and material done and furnished under said contract, the amount of said estimate, $6,298.50; that said account and estimate have been presented to the auditor of public accounts of the state of Nebraska, and he has been requested to draw his warrant on said capitol building fund for the amount thereof; that said auditor refused, and still refuses, to draw said warrant for the amount of said account or estimate, for the sole and only reason that all cash received from the sales of said lots and lands has been expended; that of the said notes, given as a part of the purchase price of said lots, and received as a part of the proceeds of said sales, more than $30,000.00 are yet unpaid, and are now held by the state; that the said auditor contends that he is not authorized by law to draw a warrant on said capitol building fund until the money due or to become due on said notes is paid into the treasury of the state, or until a sufficient amount has been paid in to pay said warrant or

any warrant which may be drawn on said fund, and therefore, and for no other reason, refuses to draw said warrant for the amount due affiant on said estimate; that said auditor raises no question as to the correctness of the claim and estimate of affiant, or as to the amount due him thereon." The fifth section of the act approved March 31, 1887, provides "that the amount derived from the sale of said lots and lands is hereby appropriated out of the capitol building fund to aid in the completion and the furnishing of said capitol building, and in laying out and improving the grounds around said building, as provided in section 4 of this act." The lands and lots described in the act were required to be sold; the proceeds to constitute a fund for the purpose of improving the grounds around the capitol building, and other purposes. The evident design of the legislature was that this fund should be available as soon as a sale of the lands and lots mentioned took place. The fact that a short credit was to be given each purchaser, if he so desired, does not nullify the appropriation. The amount of the sales, being $78,870, was appropriated, and made available for the purposes for which it was intended. If the whole amount is not in the treasury, the statute has provided that the holder of a warrant shall be entitled to interest thereon, when it is presented to the treasurer, and not paid for want of funds. This being an absolute appropriation of the amount of the sales of the lots and lands referred to, and a large part of this being still unexpended, it follows that the relator is entitled to the writ, which will be issued accordingly. Writ allowed. The other judges concur.

HARRIS V. STATE.

(Supreme Court of Nebraska. November 15, 1888.)

1. JUDGMENT AMENDMENT AND VACATION.

Courts of general jurisdiction have the authority to change, correct, revise, and vacate their own judgments, at any time during the term at which they were rendered, and before rights have become vested thereunder.

2. NEW TRIAL-MOTION-AFFIDAVITS-TIME OF FILING.

While the law requires a motion for a new trial to be filed within three days after the rendition of a verdict, and during the term at which the verdict was returned, yet it is not necessary that the motion should be decided within three days, nor is there anything in the law of this state which would prohibit the filing of affidavits in support of such motion at any time before its submission to the court. 3. SAME MISCONDUCT OF JURY-READING STATUTES IN JURY-ROOM.

Where, in a prosecution under section 14 of the Criminal Code for an assault with intent to commit rape, the person upon whom the assault is alleged to have been made having been shown to be a female child of tender years, and after the cause was submitted to the jury one of the jurors procured a copy of the Compiled Statutes, and took the same into the jury-room, and read therefrom section 12 of the Criminal Code, and especially the latter clause thereof, which refers to the carnal knowledge or abuse of a female child under the age of 15 years, and also read from chapter 46 of the Criminal Code, which provides for motions for new trials, it was held that such misconduct was sufficient to vitiate the verdict.1 4. SAME-AFFIDAVITS TO SHOW MISCONDUCT.

Affidavits may be received for the purpose of avoiding a verdict to show any matter occurring during the trial, or in the jury-room, which does not essentially inhere in the verdict itself; as where a verdict for damages is ascertained by aggregation and average without subsequent ratification, or where it is made to depend upon chance, or where a part of the jury become so intoxicated as to destroy their ability to deliberate and exercise their reason and judgment, or where witnesses are surreptitiously called before the jury, and permitted to detail the principal facts, or any other matter, concerning which all or any considerable portion of the jury may testify with equal knowledge, by having seen or heard the misconduct which is alleged to have occurred.1

(Syllabus by the Court.)

1 As to when a new trial will be granted on the ground of misconduct of the jury, and the admissibility of jurors' affidavits to show such misconduct, see Parshall v. Railway Co., 35 Fed. Rep. 649, and note; People v. Goldenson, (Cal.) 19 Pac. Rep. 161, and note; State v. Harper, (N. C.) 7 S. E. Rep. 730.