further testified that 117 head were turned over to plaintiff; that 5 head had perished in a storm, the 1st of May, of those originally inspected; and that, after plaintiff had taken the stock away, there were 15 left on the farm, and 2 cows left out for milk. worth $30 per head, and those thus sub- | lings about $13 per head." This witness stituted not to exceed $12 per head. The plaintiff's expenses from the 25th of April to the 14th of May, when he received the cattle, was that of the board of two men, and his own, back and forth from Hastings to Newark, and telegraphing, and two trips to Minden to get the mortgages fixed up, which required 34 days; boarding at Hastings for 3 men, at $2 per day, $33; his own boarding, with that of the three men, up to May 14th, was $75. There were other expenses, getting deeds recorded, and two trips to Minden, and for the plaintiff's time expended, 18 days, at $10 per day, $180. The plaintiff introduced the deed from the defendant and his wife for the quarter section, stipulated to be conveyed to the plaintiff, containing the usual contract of warranty, except as to two certain mortgages, of $700 and $300, amounting to $1,000, and the taxes of 1888; claiming in his testimony that, of the interest paid up to the 1st of June on the $700 lien, $31.50 was due from defendant, and on the $300, $20.25 was also due, as the accrued interest, prior to the transfer of the property. The testimony of plaintiff relating to the settlement with defendant is given in full, as follows: "Question. State when you had your last conversation with the defendant, and what it consisted of. Answer. It was May 13th, when witness came down from Newark, after defendant had settled with Radford, and witness wanted to make arrangement to get away the next day. Defendant had charges against witness for keeping the cattle from April 7th to May 13th. Witness was not to have paid these charges, but he refused to deliver the cattle, and gave instructions to his men not to deliver them until the charges were paid. After being delayed so long, witness was willing to do most anything so he could get away. Defendant demanded pay, and after talking some time he told witness, 'You pay me $25,and you can take the cattle.' Witness said that he had got to pay it, he supposed, as he must get away; but he said that he did not consider it due, and that it was no settlement, and there would be a settlement hereafter. So witness gave him a check for $25, left his house and got the cattle,-got 117 head of them,-not then knowing about the changes in the herd until he got possession of them." Robert Radford, a witness for the plaintiff, testified that he resided at Newark; was acquainted with the parties; was present at the time they came there to inspect the cattle purchased by plaintiff of defendant, about April 7, 1888; knew the cattle there,-about 133 or 134 head; they were not all defendant's cattle, part belonging to witness; Samuel Tweed was the agent in charge of defendant's cattle there. "Question. What conversation had you with Tweed, if any, or what did he do, if you know, in regard to the changing of these cattle? Answer. There were about 13 of the best cows taken out, and other stock put in their place. Q. What was the value of those cows at that time, and what of the yearlings substituted? A. The cows $30 per head, and the yearV.45N.w.no.1-4 Fred Radford, a witness for plaintiff, testified that he resided at Newark; was acquainted with the parties to this suit; was first acquainted with the plaintiff, April 7, 1888, when he came down to inspect the cattle, which witness was herding and feeding, and which plaintiff took away May 14th. "Question. What cattle, if any, had been substituted? Answer. There were 13 of the best cows taken out, and yearling cattle put in their place, between the 15th and 20th of April. Q. Who were you working for? A. Under Tweed, who was foreman for Brown. He instructed me to make the change. The cows taken out were worth $30 per head, and the yearlings substituted from $12 to $13 per head; they were poor. Two cows, two steers, and a heifer died and were lost in the storm of May 1st." The defendant was sworn as a witness, and testified, in reference to the alleged settlement between the parties, that the last deed made by plaintiff, for the two lots omitted in prior deed, was delivered on April 27th. That the next time witness saw plaintiff was at witness' house, in Hastings, on May 12th, when he had conversation on matters pertaining to the stock. He left on a freight train for Newark, on that day, to see Radford, and came back in the evening, and made arrangement to meet at witness' house on May 14th, and May 14th, and he came on that day. "Question. Who was there? Answer. My wife, Miss Teeter, the plaintiff, and myself. There was a short talk about the stock, about the feed-bill, and of the stock that had perished. When he got through he came in to settle. He stated that, in my absence, he had been to some inconvenience in not getting his stock," and asked who witness thought should stand the loss of the 7 head that had perished. Witness thought the plaintiff should, as they were his cattle, and then they turned to the feed-bill for 125 head of cattle, 7 head of horses, and 4 colts. He suggested that, as he had been put to trouble and expense, witness ought to make some allowance on the feed-bill, and mentioned some items, such as recording two deeds, $2; abstracts on same, $2; interest unpaid to date of deed, $27; taxes, $14.50 and $16.54. Those, he thought, witness ought to pay, -a total of $52.15. He stated that if he paid Radford's bill of $23.60, for taking care of the cattle, witness ought to call it square with him; to which witness replied he did not think it fair he should stand such a bill, but that if plaintiff would give him $25 he would call it all square, and jump the whole matter and a settlement; and the plaintiff said he would do it, and sat down and wrote a check, and witness gave him a receipt for the whole business. Q. What was said about plaintiff's expenses subsequent to April 20th, including the pay and board of his men; or what did he come to your house for, if you know, on May 14th? A. He said he came to settle our matters on the feed-bill, as he wanted to close it up, and get away. Q. Were all matters of difference between you considered? A. Yes, sir; all matters were talked over,-taxes, interest, cattle that had died, feed-bill, and everything. Q. Previous to that time had you loaned him money, and, if so, how much? A. Yes, sir; $25, about the 8th of April, which was included in the settlement. Q. Have you had any transactions with him since? A. None." This testimony of defendant is, in the main, corroborated by that of his wife and of Florence Teeter. The evidence on the part of the plaintiff below, under the seventh cause of action. as set out in the petition, to say the most to be claimed for it, was scarcely sufficient to sustain a verdict thereon, had there been no alleged settlement between the parties of their business transactions; and the whole of the evidence applicable, as well on the part of the plaintiff as on that of the defendant, tends to prove that there was such a settlement on May 14, 1888, and that it embraced the several claims of the plaintiff set up in the seventh cause of action. But such settlement clearly did not embrace the claim for shortage in the delivery❘ of the cattle bargained for, and the substitution of inferior stock for those of greater value, as set out in the eighth and ninth causes of action, and in the testimony of the plaintiff and the two witnesses Radford, for the plaintiff testified that, at the time of the alleged settlement, before the cattle were turned over to him, he was not aware of the deficiency. There is some confusion in the evidence as to the precise number of cattle to which the plaintiff was entitled. The stipulation called for all the cattle in defendant's herd, not less than 125, not including late calves. In the examination of witnesses by plaintiff's counsel there is no attempt to prove, and certainly no proof, that there were in the herd, at the time of the sale, more than 125 head. There was proof that Radford claimed to own 10 head of the cattle; and also that there were 17 head-15 yearlings and 2 cows-on Feather's place belonging to defendant. It is possibly the theory of the plaintiff that, as the defendant sold him the herd, not less than 125, and as there were 10 or more on the place additional, and the defendant had an equal number, not in the herd, but on another farm, the plaintiff was entitled to those, equal to the number of Radford's, which were in the herd at the time of the sale and inspection by the parties. This theory, to my mind, is not admissible. There is no pretense that the plaintiff counted the cattle at the inspection, and it does appear in writing and throughout the transaction that the number was limited to 125. As claimed by the plaintiff below, in his petition, 118 were delivered and received, leaving a deficiency of 7. There is proof that 5 head were lost by storm, on the 1st of May, between the sale and the delivery. According to the evidence of the defendant, and of two witnesses, that loss was one of the accounts embraced in the settlement of May 14th; and the plaintiff, testifying as to the same transaction, makes no mention of the loss, though examined in rebuttal, after the defendant's testimony was closed, and is questioned by a juror as to his receipt of the cattle in a condition different from that at the time he bought them, and says nothing of the loss of cattle by death, or that defendant disclaimed any such loss. There is evidence that a number of the cattle were wrongfully exchanged for others of less value, which were subsequently delivered to the plaintiff. The difference of value of those taken out of the herd and of those substituted the plaintiff is entitled to recover. There is a wide difference, however, between the plaintiff's estimate of the number thus taken and substituted, and of the consequent loss sustained, and that of the apparent weight of evidence in the case on those points. those points. He does not, however, claim to have any exact knowledge of the number or the value of those taken and exchanged. The witness R. Radford, who was in possession of the premises where the cattle were herded and fed, states that the number taken out was 13 cows, valued at $30 each, $390, and there were substituted 13 yearlings, valued at $13 each, $169; on account of which the plaintiff's loss would be $221. The witness F. Radford, who was the herder under Tweed, the defendant's foreman, testified that he made the exchange, under the orders of the foreman, corroborating this estimate of the num ber and value of the cattle taken out and substituted. It would seem to satisfactorily establish the estimate as stated. On either theory, that the loss of the five cattle of the herd by storm was the plaintiff's loss, or that his claim for them was embraced in the settlement of May 14th, there would still appear to be two head of cattle to be accounted for by the defendant. The plaintiff's evidence, fixing the average value of the cattle at $27 each, in the absence of other evidence as to the fact, will be accepted as correct; thereby finding the additional sum of $54 due the plaintiff, and a total of $275, on account of the cattle due from the defendant. The verdict in the court below to this extent we find sustained. To a larger amount it does not appear to be supported by the evidence. There was evidence of a mortgage lien on the land conveyed to the plaintiff greater than the amount excepted in the covenant of warranty, but it is not claimed that such excessive lien had been discharged, nor will it be claimed that an action lies therefor until it has been discharged. In addition to the finding of $275, the plaintiff would be entitled to interest thereon from May 14, 1888, to the date of judgment, June 4, 1889, amounting to $20.25. It is therefore considered that the judgment of the district court will be reversed, and the cause remanded for further proceedings, unless the defendant in error shall, within 30 days from the filing of this opinion, enter a remittitur in the office of the clerk of this court of the sum of $204.75 as of the date of the judgment in the court below, and in that case the judgment is otherwise affirmed. Judgment accordingly. The other judges concur. (28 Neb. 785) BROWNLEE v. DAVIDSON. (Supreme Court of Nebraska. Feb. 18, 1890.) JUDGMENT-CORRECTION OF RECORD-DEFICIENCY JUDGMENT. 1. A district court has power to correct at a subsequent term of court any errors or defects in the record of its judgments which occurred through the mistake or neglect of its clerk, so as to make the judgment entry correspond with the judgment actually rendered. 2. Notice must be served on the opposite party of an application to correct such errors. It will be presumed that notice was given, in the absence of a showing to the contrary. 3. Before error can be predicated upon the failure of a district court to render a deficiency judgment, it must appear that the court refused to render one when requested to do so. (Syllabus by the Court.) Error to district court, Otoe county; CHAPMAN, Judge. Edwin F. Warren, for plaintiff in error. D. T. Hayden, for defendant in error. NORVAL, J. In 1887 an action was brought in the district court of Otoe county, by Ebeneezer Brownlee in his life-time, against the defendant, Jane C. Davidson. From the allegations of the amended and supplemental petitions it appears that Mrs. Davidson owned the life-estate in certain lands in Otoe and Nuckolls counties, and refused to keep the taxes paid thereon; and to protect the interests of the remainder-men, the plaintiff, Brownlee, for himself and others, paid the same, amounting to several hundred dollars. The object of this suit is stated in the prayer of the amended and supplemental petition thus: "Wherefore plaintiff prays for a decree ordering, adjudging, and decreeing said sums of money, and the interest thereon, a lien upon the said described lands, and upon the interest of the said defendant therein; that unless the same shall be paid by a certain day, to be fixed by the court, that the interest of the said defendant in and to said lands, to-wit, her life-estate therein, or so much thereof as may be necessary, may be sold as upon sales under mortgage foreclosure; that out of the proceeds arising from such sale there may be paid-First, the costs of this action, and of such sale; second, the sum so as aforesaid to be found due this plaintiff for taxes paid and interest, and for such other or further order or relief in the premises as equity and good conscience may suggest, the circumstances of this case considered. The defendant answered, and on the 7th day of June, 1888, the court found the issues in favor of the plaintiff, and "adjudged, ordered, and decreed that the plaintiff have and recover of and from the said defendant the sum of $970.89 and costs; and it is further ordered, adjudged, and decreed that the said plaintiff have a lien upon the interest of the defendant in said premises for said sum so found due, and costs." The remainder of the decree is the same as in mortgage foreclosures. On the last day of the succeeding term of court in Otoe county, to-wit, November 16, 1888, the defendant filed with the clerk of said court her application for the correction of said journal entry, stating therein, among other grounds, "that by a mistake in the preparation of said | 99 decree personal judgment was rendered against said defendant, and in favor of said plaintiff, for the aforesaid sum; whereas, no such judgment or finding has been entered by said court, or asked for in plaintiff's petition, but that the same was an error and mistake which should be corrected by this court." On the 4th day of January, 1889, the plaintiff procured an order of sale to be issued on said decree, the Otoe county lands were sold thereunder, sale confirmed, and the sheriff ordered to execute a deed to the purchaser at said sale. On the 2d day of May, 1889, the said district court entered upon its journal the following correction of the journal entry of June 7, 1888, to-wit: "This cause came on for hearing on the motion of the defendant to modify the decree and correct the entry of judgment heretofore made in this case, which motion was duly submitted to the court at the November term, 1888, thereof; and the court, being well advised in the premises, doth find that on the 7th day of June, 1888, a decree was entered in the above case in favor of the plaintiff, and against the defendant, for the sale of the defendant's life-estate in certain lands in the state of Nebraska, described in plaintiff's petition; but that, by an error or mistake of the party preparing the decree in said case, a personal judgment was entered against the said defendant, whereas no personal judgment was rendered, or intended to be rendered, by the court against the defendant in said cause. It is therefore considered and ordered by the court that the said decree, and the entry of said judgment, be modified and corrected to conform to the original findings of the court, so that the plaintiff shall have a lien only upon the life-estate of the defendant in said lands, and that the same be sold to pay the sum found due by said decree, and that all that portion of said decree purporting to render a personal judgment against said defendant should be, and the same is hereby, set aside." On the 13th day of May, 1889, the plaintiff filed a motion to have this last decree vacated, because the district court had no jurisdiction at that time to make such entry, and that the original judgment was right and proper. This motion of the plaintiff was overruled on the 17th day of June, 1889, the plaintiff took an exception, and brings the case here by petition in error, Ebeneezer Brownlee having died since the entry of the decree in the lower court, the cause was revived in this court in the name of his executor, John Brownlee. It is urged that the original decree corresponds with the one actually rendered. The finding in the modified decree does not sustain the petition. It states that, "by an error or mistake of the party preparing the decree in said cause, a personal judgment was entered against the said defendant; whereas, no personal judgment was rendered, or intended to be rendered, by the court against the defendant. Whether this finding was based upon the recollection of the learned district judge, his entry on the trial docket, or on evidence taken, is not disclosed by the record. The evidence not being before us, the presumption is that the finding of the court is sup 99 We do ported by the evidence. The principal | firm name of Bowlly and Knox. hereby acknowledge ourselves sureties for STATE ex rel. STRANGE V. COCHRAN. (Supreme Court of Nebraska. Feb. 19, 1890.) JUSTICE'S JUDGMENT-STAY OF EXECUTION. 1. To obtain a stay of execution on a judgment rendered by a justice of the peace, it is sufficient if, within 10 days after the rendition of the judgment, a surety approved by the justice enter, on the jus tice's docket, into an undertaking with the adverse party "conditioned for the payment of the amount of such judgment, interest, and costs, and costs that may accrue." The judgment debtor need not sign the undertaking. 2. Undertaking examined and held sufficient. (Syllabus by the Court.) Original application for mandamus. Chapman & Geisthardt, for relator. Stevens & Love, for respondent MAXWELL, J. On the 30th day of October, 1889, the relator recovered a judgment against John Bowlly and John Knox, before the respondent, a justice of the peace. On the 4th day of November thereafter, the judgment debtors caused to be filed with said justice an undertaking for the stay of execution, as follows: "A. H. Strange v. Allen Bowlly and John Knox, partners doing business under the "The State of Nebraska, Lancaster County-88.: W. T. Stevens and D. L. Love, being duly sworn, depose and say that we are residents and householders and freeholders within Lancaster county, in the state of Nebraska; that we are sureties in the foregoing bond; that we are worth, in real estate therein, the sum of $500 beyond the amount of our debts; and that we have property liable to execution in the state of Nebraska equal to $500. W. T. STEVENS. D. L. LOVE. "Sworn to before me, in my presence, by W. T. Stevens and D. L. Love, this 6th day of November, 1889. S. T. COCHRAN, Justice of the Peace. "The foregoing recognizance and sureties taken and approved by me this 6th day of Nov., A. D. 1889. S. T. COCHRAN, Justice of the Peace." It is claimed that the instrument in question is void because not signed by the principal debtors; and Gregory v. Cameron, 7 Neb. 414, is cited to sustain that position. In that case the judgment exceeded $100; and in such case, where judgment was rendered in the county court, the provisions for staying execution were the same as in the district court. Gen. St. 1873, p. 267. Section 481 of the Code, as it existed at that time, required the judgment debtor, in order to obtain a stay of execution, to enter into a bond to the plaintiff with one or more sufficient sureties, etc. The court held, and properly, that the instrument filed in that case was not a bond, and therefore not a compliance with the statute. Section 1049 of the Code, however, does not require the judgment debtor to give a bond, but merely to procure the undertaking of one or more sureties, resident of the county, as the justice shall approve, "conditioned for the payment of the amount of the judgment, interest and costs, and costs that may accrue." The undertaking in question contains more than the statute requires. Whether some of its provisions could be carried into effect we need not now stop to inquire. It does provide that the sureties will pay the judgment, interest and costs, and costs that may accrue, and is signed by them. The principal is not required to sign the undertaking; and we have no authority nor inclination to inject words into the statute. It is apparent that the stay is a valid obligation, and the writ is therefore | denied. Judgment accordingly. The other judges concur. (28 Neb. 810) RICHARDSON COUNTY V. HULL. (Supreme Court of Nebraska. Feb. 19, 1890.) CLAIMS AGAINST COUNTIES-ERRONEOUS TAXATION. A cause of action against a county under the provisions of section 71 of the revenue act of 1869, is a claim against a county, within the meaning of section 37, c. 18, of the Compiled Statutes, and no action can be maintained on such claim other than by presenting the same to the county board for audit and allowance. Richardson Co. v. Hull, 24 Neb. 536, 39 N. W. Rep. 608. (Syllabus by the Court.) On rehearing. For former report, see 39 N. W. Rep. 608. Edwin Falloon and E. A. Tucker, for plaintiff in error. E. W. Thomas and C. Gillespie, for defendant in error. lon, in his work on Municipal Corporations, § 939, in speaking of actions like this, uses this language: "An important class of actions, in form ex contractu, remains to be noticed. We refer to actions against municipal corporations to recover back money paid to them for taxes. They are usually brought in assumpsit for money had and received, "etc. To hold that a demand for taxes illegally collected by a county is a "claim," within the meaning of section 37, c. 18, Comp. St. 1889, is certainly within the letter and spirit of the statute. Section 131, Comp. St. 1889, provides that "when, by mistake or wrongful act of the treasurer or other officer, land has been sold on which no tax was due at the time, or when land is sold in consequence of error in describing such land on the tax-receipt, the county is to hold the purchaser harmless by paying him the amount of principal and interest, "etc. Pay the purchaser, when? After an action has been brought into the courts, and judgment obtained? This would hardly save the purchaser harmless. This section unquestionably authorizes the county board to pay the purchaser without suit. If the board has that authority, then it follows that the claim must be presented to the board for allowance. By pursuing that method, needless litigation would be avoided, and unnecessary expense and costs would be saved both to the county and claimant. After a careful re-examination of the case, we are satisfied that the former decision was correct, and it will be adhered to. The judgment of the district court is reversed, and the cause remanded for further proceedings. The other judges concur. (28 Neb. 814) SKINNER V. STATE. (Supreme Court of Nebraska. Feb. 19, 1890.) ATTEMPT TO RAPE-EVIDENCE. 1. To warrant a conviction for an assault with intent to commit a rape, the evidence must show beyond a reasonable doubt that the accused not only intended to have sexual intercourse with the prosecutrix, but that he intended to use whatever force might be necessary to overcome her resistance, and accomplish his object. NORVAL, J. Upon the filing of the opinion in this case, (24 Neb. 536, 39 N. W. Rep. 608,) a motion for a rehearing was filed on behalf of the defendant in error, and, a rehearing having been granted, it has been resubmitted. The action was brought by Hull to recover of the county $509.43, which had been paid by him for taxes upon a tract of land not subject to taxes. There is but one question in the case, and that is whether the cause of action is of such a nature that it should first have been presented to the county board for allowance. Upon a careful review of the authorities by Judge COBB in the former opinion, it was held that the cause of action was a claim, within the meaning of the statute, and that no action could be maintained thereon other than by presenting the same to the county board for audit and allowance. We are entirely satisfied with the conclusions there reached. We shall not attempt a review of the authorities cited by the defendant in error from other states. They are either from states having statutes different from ours, or are based upon facts unlike the case at bar. The defendant in error cites as an authority Roberts v. Adams Co., 20 Neb. 409, 30 N. W. Rep. 405. The question involved in this action was not presented or discussed in that case. True, the causes of action are alike. Roberts v. Adams Co. was before this court twice, and from an examination of the first opinion, found in 18 Neb. 471, 25 N. W. Rep. 726, it will be seen that in that case the claim was first presented to the county board, and, after being rejected, an appeal was taken to the NORVAL, J. At the January term, 1889, district court, and tried there de novo. In of the district court for Dundy county, an Nance v. Falls City, 16 Neb. 85, 20 N. W. information was filed charging the plainRep. 109, the action was brought to recov- tiff in error with making an assault upon er damages against the city,-an unliqui- one Rhoda A. Rogers with the intent of dated demand,-and it was held that the committing upon her the crime of rape. suit could be maintained in the district He was convicted, and sentenced to impriscourt without having first presented the onment in the penitentiary for two years. demand to the city council for adjustment. The defendant's motion for a new trial We do not question the correctness of that was overruled, an exception was entered decision. It certainly has no application on the record, and he now brings the cause here. This is not an action for damages. to this court for review by proceedings in The amount of the demand sued for here error. Several errors are assigned, but is liquidated, fixed, and certain. When the one of which will be considered, and that county received these taxes there was an is that the verdict of the jury is not susimplied promise to repay them. Judge Dil-tained by sufficient evidence. 2. Held, that the verdict is not sustained by the evidence. (Syllabus by the Court.) Error to district court, Dundy county; COCHRAN, Judge. J. W. McClelland and May & McElroy, for plaintiff in error. Wm. Leese, Atty. Gen., for the State. |