complaint; that it tended to show the character of his business. The crime charged was not a single purchase or sale, but the practice of buying and selling certain kinds of such goods; and the evidence that there were in his store other kinds of second-hand goods, to wit, tools, tends to prove such practice.

I cannot agree with the majority on this point. In my opinion, the prosecution has no right in this way to set up one-half or onequarter of an entire offense, and then prove the whole. It nowhere appears how much of this alleged second-hand stock consisted of tools, and how much of it consisted of the other articles enumerated by the witness. The second-hand tools might have formed the principal part of his stock, and not an incidental or minor item.

The order appealed from is affirmed.

BUCK, J., absent, took no part.

On Motion for Reargument.

(April 24, 1895.)

PER CURIAM. One of the grounds of the motion for reargument is that the court did not decide the point made in the argument .that there is not sufficient evidence to sustain a conviction. The point was in fact decided by the court, but by inadvertence such decision was not put in the opinion. While the evidence is short, and not very full, it is wholly uncontradicted. There was no crossexamination, and no evidence in rebuttal. We are of the opinion that the evidence was sufficient to sustain the conviction.

STATE ex rel. ZEGLIN v. BOARD OF COM'RS OF CARVER COUNTY et al. (Supreme Court of Minnesota. April 25, 1895.) MANDAMUS-REFUSING LIQUOR LICENSE.

The granting or refusing a license to sell intoxicating liquors is vested in the discretion of the board of county commissioners, and the exercise of their discretion cannot be controlled or reviewed by mandamus.

(Syllabus by the Court.)

Appeal from district court, Carver county; Francis Cadwell, Judge.

Action on the relation of Reinhold Zeglin for mandamus to the board of commissioners of Carver county and L. Streukens. The alternative writ was quashed, and relator appeals. Affirmed.

J. L. Macdonald, for appellant. P. M. Morrison, County Atty., for respondents.

MITCHELL, J. On September 7, 1893, the relator applied to the respondents for a license for one year from that date to sell intoxicating liquors at a place named. The board appointed November 14, 1893, as the day for hearing the application, and upon such hearing adopted the following resolution: "Resolved, that the bond of said R. Zeglin, upon his application, be approved, and that the said license to sell at said place be granted to him to expire July 1, 1894, being for one year from July 1, 1893; said license being so granted pursuant to stipulation, upon which prosecution of said Zeglin for sale of intoxicating liquors at said place without license, instituted by indictment found by the grand jury at September term of court, was dismissed." Upon receipt from the clerk of the board, a few days afterwards, of a license conforming to this resolution, the relator returned it to him, notifying him that he refused to receive it, and demanding that a license be issued to him for one year from September 7, 1893, which was refused. On July 25, 1894, the relator applied for and was granted an alternative writ of mandamus to the respondents, "to correct and change the date of the commencement of the year of said license from July 1 to September 7, 1893," or show cause why they had not done so. On the hearing the court, on motion of respondents, quashed the alternative writ, on the ground that it did not state facts sufficient to entitle the relator to the relief asked for. Whether a license to sell intoxicating liquors shall be granted or refused rests in the discretion of the board of county commissioners, in the exercise of which they act judicially, and not ministerially, and therefore their action cannot be controlled or reviewed by mandamus. While it appears from the resolution cited that the board for certain reasons attempted to give the offered license a retroactive effect, yet, bearing in mind that this cannot be done, that a license takes effect, as authority to sell, only from the date it is actually issued,--it is apparent that, in legal effect, the license which the board resolved to grant relator was from November 14, 1893, to July 1, 1894. If the relator was not satisfied with the license which the board thus offered him, he was under no obligations to accept it. He had a right to refuse it, as he did, and demand a return of his money, but the board cannot be compelled to grant him any other or different license. The unreasonable and unexcused delay of the relator in applying for the writ for over eight months, and until the time for which he had applied for a license had so nearly expired, might, perhaps, also be a reason why the court, in its discretion, would have been justified in quashing the writ. But it is unnecessary to consider that question. Order affirmed.

Abandonment.

Of homestead, see "Homestead."

ABATEMENT AND REVIVAL.

The defense of prior action pending must be
pleaded.-Witte v Foote (Wis.) 1044.

Right of defendant mortgagee in an action to
set aside a mortgage of goods attached by plain-
tiff to defendant by alleging that he had been
previously garnished by plaintiff while in pos-
session of the goods, and that the garnishment
was dismissed.-Toledo Sav. Bank v. Johnston
(Iowa) 748.

Under Gen. St. 1894, § 5164, a father may
maintain an action in his own name for injuries
to his minor child, without alleging that it was
brought for the benefit of the child.-Buechner v.
Columbia Shoe Co. (Minn.) 817.

The assignee of a judgment creditor's claim
on the bond of a constable, under
may sue
How. Ann. St. § 6988.-Montgomery v. Mar-
tin (Mich.) 578.

A joinder in a petition of a cause of action for
malicious prosecution of one for the damage to
plaintiff's business by arresting occupants of
her place of business, and one for slander aris-
ing out of the same transaction, is proper.-
Dinges v. Riggs (Neb.) 74.

Between partners, see "Partnershin."

In equity, see "Equity."

Acknowledgment.

Acts.

Administration.

See "Executors and Administrators."

Admissions.

As evidence, see "Evidence."

ADULTERY.

Under How. Ann. St. § 9279, a married man
may be prosecuted on complaint of the husband
of his paramour. - Wilson v. Gratiot Circuit
Judge (Mich.) 293.

Evidence considered, and held inadmissible.
-People v. Fowler (Mich.) 572.

ADVERSE POSSESSION.

Erroneous instruction as to whether the
planting of willows upon a strip of marsh land,

ACTION.

See, also, "Abatement and Revival"; "Appear
ance"; "Continuance"; "Election of Reme-
dies"; "Limitation of Actions"; "Lis Pen-
dens"; "Parties"; "Pleading"; "Practice in
Civil Cases"; "Trial"; "Venue in Civil Cases."
Against city, see "Municipal Corporations."
By and against husband and wife, see "Hus-
band and Wife."

For price, see "Sale."

On bond, see "Bonds."

On contract, see "Contracts."

On injunction bond, see "Injunction."
On note, see "Negotiable Instruments."
On policy, see "Insurance.'

Particular actions, see "Assumpsit"; "Breach
of Marriage Promise"; "Creditors' Bill";
"Death by Wrongful Act"; "Deceit"; "Di-
vorce"; "Ejectment"; "False Imprisonment":
"Forcible Entry and Detainer"; "Injunction"
"Libel and Slander"; "Malicious Prosecution";
"Mandamus"; "Partition"; "Quieting Title
-Removal of Cloud"; "Quo Warranto"; "Re-
plevin"; "Specific Performance"; "Trespass";
"Trover and Conversion."
v.62N.w.-72

the right to cut them, constituted adverse pos-
session. Kurz v. Miller (Wis.) 182.

A continuous and notorious possession which
is not adverse to the legal title will not give title
by prescription.-Chloupek v. Perotka (Wis.) 537.

Occupation of a shanty on wild lands, while
removing timber, does not show possession as
against the legal owner.-McKinnon v. Meston
(Mich.) 1014.

Evidence that a person took adverse pos-
session of land "about" May 1, 1866, and re-
mained in possession until "about" May 1, 1886,
does not prove title by adverse possession after
20 years.-Allis v. Field (Wis.) 85.

Sufficiency of evidence to show that the land
in dispute was conveyed by one in adverse pos-
session thereof, so as to allow his grantee to
tack his possession to his own for the purpose
of obtaining title.-Allis v. Field (Wis.) 85.

AFFIDAVIT.

The jurat or certificate of the officer enables
the affidavit to be read in evidence as the oath
of the party whom such officer certifies made
the oath.-Bantley v. Finney (Neb.) 213.

The certificate of a notary public to an affi-
davit is presumptive evidence of the facts stat-
ed in such certificate, including the statement
that affiant signed the affidavit.-Smith v. John-
son (Neb.) 217.

Agency.

See "Principal and Agent."

AGRICULTURAL SOCIETIES.

Where an agricultural society offers premiums
for races to be conducted under the rules of the
American Trotting Association, one entering a
horse is not bound by an agreement between the
members of such association to submit questions
as to right to premium to such association, since
the advertisement did not notify him that the
society was a member thereof.-Moshier v. La
Crosse County Agricultural Soc. (Wis.) 932.

Alcoholic Liquors.

See "Intoxicating Liquors."

Alienation.

APPEAL.

See, also, "Certiorari": "Error. Writ of"; "Ex-
ceptions, Bill of": "New Trial."

Costs on appeal, see "Costs."

In criminal cases, see "Criminal Law."

Where the costs incurred are trifling, an appeal
will not be tried on its merits for the purpose of
determining the right to such costs.-Thomas
v. Craig (Minn.) 1133.

In an action to enjoin a sale under execution,
the court, pending appeal, properly suspen is its
judgment dismissing the petition and dissolving
the injunction.-Winter v. Coulthard (Iowa) 732.
An order denying a new trial made before
judgment, is reviewable on an appeal from the
judgment.-Granger v. Roll (S. D.) 970.

After a decision on appeal, a petition for
leave to apply to the trial court for a rehear
ing will be denied, where no diligence is shown.
In re Johnson (Mich.) 294; Sherwood v. Cen-
tral Michigan Sav. Bank, Id.

Appealable judgments and orders.

An order denying a motion to strike out an
allegation in an answer as scandalous is not
appealable.-Dewald v. Dewald (Wis.) 175.

ALIENS.

Where a minor of foreign birth came to the
state when nine years old, with his father, who
declared his intentions, and served in the army
during the war, and the minor, one month be-
fore becoming of age, declared his intentions,
and was repeatedly elected to public office, but
never took out naturalization papers until Jan-
uary, 1895, he was eligible to be elected to the
office of county auditor in November, 1894.-
State v. Streukens (Minn.) 259.

ALTERATION OF INSTRU-
MENTS.

Whether an alteration is material is a ques-
tion of law for the court.-Fisherdick v. Hutton
(Neb.) 488.

An immaterial alteration in a written instru-
ment, without the knowledge of a party there-
to, will not invalidate it.-Fisherdick v. Hut-
ton (Neb.) 488.

The erasure of a name of the payee of a
note, and the substitution of another without the
consent of the maker, renders the note void,
even as to a bona fide holder.-Erickson v. First
Nat. Bank (Neb.) 1078.

Amendment.

Of constitution, see "Constitutional Law."
Of pleading, see "Pleading."

ANIMALS.

Killed or injured by locomotive, see "Railroad
Companies."

The herd law (Comp. St. c. 2, art. 3) is appli-
cable to cultivated lands in cities of the met-
ropolitan class. Lingonner v. Ambler (Neb.)
486.

A landowner who holds trespassing animals to
secure his lien for the trespass is liable to the

An appeal does not lie from an order refusing
to dissolve an attachment, after the attachment
has been released on a bond.-Thomas v. Craig
(Minn.) 1133.

An order extending the time for filing a bill
of exceptions after waiver of right of appeal is
appealable.-Ray v. Hixon (Wis.) 922.

Sufficiency of an order dismissing the com-
plaint, to constitute a final judgment. - Law-
rence County v. Meade County (S. D.) 957.
Requisites.

An exception to a final judgment is unneces‐
sary to a review of the cause.-Erck v. Omaha
Nat. Bank (Neb.) 67.

In order to obtain a review for misconduct
of the jury, the facts showing such misconduct
must be submitted by affidavits to the district
court on a motion for a new trial.-Houston v.
City of Omaha (Neb.) 251.

The directing a verdict on the evidence, if
erroneous, is properly specified in a motion for
new trial as "error of law occurring at the
trial."-Sioux Banking Co. v. Kendall (S. DJ
377.

Comp. Laws, § 5216, limiting the time in
which an appeal from an order may be taken,
to 60 days, has no application to an order deny-
ing a new trial made before the entry of the
judgment.-Granger v. Roll (S. D.) 970.

Where a case is not docketed within the stat
utory period, through the neglect of the clerk
below to prepare the transcript, the appeal wil
not be dismissed.--Continental Building & Loan
Ass'n v. Mills (Neb.) 478.

Notice.

A de facto deputy clerk of court may receive
notice of appeal.-Wheeler & Wilson Manufg
Co. v. Sterrett (Iowa) 675.

Bonds.

A bond executed on appeal by defendant in a
forcible detainer suit is not void because no spe
cific sum of money is specified therein as a pea-
alty.-Morrison v. Boggs (Neb.) 473.

When the interests of several defendants are
inseparable, an appeal by one brings up the
whole case, but all persons interested must be
made parties.-Polk v. Covell (Neb.) 240.

One of several defendants having separate and
distinct defenses may appeal from the county
court to the district court without joining his
codefendants.-Polk v. Covell (Neb.) 240.

Assignments of error.

Rulings on evidence cannot be considered un-
less the particular errors are specified in assign-
ments of error.-Edney v. Baum (Neb.) 461.
"That the court erred in granting defendant's
motion to dismiss the motion" is a good assign-
ment of error.-Ermentrout v. American Fire
Ins. Co. of Philadelphia (Minn.) 543.

To obtain a review of the rulings on the ad-
mission or rejection of evidence, the petition in
error must specifically designate the rulings
complained of. - City of Chadron v. Glover
(Neb.) 62.

An assignment "errors of law occurring at the
trial" presents nothing that can be reviewed by
the supreme court on a petition in error.-Hous-
ton v. City of Omaha (Neb.) 251.

An assignment of error, "Irregularity in the
proceedings of the court and jury, by which
plaintiff was prevented from having a fair
trial." is insufficient.-Houston v. City of Oma-
ha (Neb.) 251.

Under an assignment of error "Misconduct
by the jury," the action of the court which it is
claimed amounted to misconduct must be stated
in the petition in error.-Houston v. City of
Omaha (Neb.) 251.

An assignment of error, that "there was error
of law occurring at the trial duly excepted to,'
is not sufficient to obtain a review on the ad-
mission of testimony.-Schelly v. Schwank (Neb.)
1069.

An assignment of error for the overruling of a
motion for new trial must specify to which of
the points in the motion it applies.-Stein v. Van-
nice (Neb.) 464.

An assignment in a petition in error, "errors
of law occurring at the trial, excepted to at the
time," is too indefinite to secure a review of rul-
ings on the admission or exclusion of testimony.
-Mullen v. Morris (Neb.) 74.

An assignment in the petition in error that the
court erred in overruling the motion for a new
trial is too indefinite where the motion for a
new trial assigns several different grounds.-
City of Chadron v. Glover (Neb.) 62.

Where the instructions sought to be reviewed

exception to the ruling complained of.-City of
Chadron v. Glover (Neb.) 62.

Where the certificate of a clerk, attached to
the record on appeal, is materially altered with
the evident intention to mislead a court, the tran-
script will be stricken from the files.-Felber v.
Boyd (Neb.) 1059.

Where the record does not show any ruling by
the court on a motion for judgment "non ob-
stante veredicto," there is nothing to be re-
viewed.-Barr v. Kimball (Neb.) 196.

In the absence of a bill of exceptions, objec
tions to an instruction applicable to a certain
class of testimony cannot be considered.-Nel-
son v. Johnson (Neb.) 244.

The word "proceedings" in Code Civ. Proc.,
relating to the transcript on appeal, includes cer-
tified copies of the pleadings on which the case
was tried.-School Dist. No. 49 of Adams Coun-
ty v. Cooper (Neb.) 1084.

Where an appeal is required to be heard on a
certified transcript of the proceedings, an appeal
cannot be heard on the original pleadings,
though the parties may so stipulate.-School
Dist. No. 49 of Adams County v. Cooper (Neb.)

1084.

Where, after entry of a decree in equity, an
order is made correcting an error therein, the
time within which the evidence must be filed
commences to run from the day of entry.-Calef
V. Cole (Iowa) 24.

Propriety of striking out from the record the
opinion of the judge of the district court.-Me-
Lean v. Ficke (Iowa) 753; Beach v. Same, Id.

Where the bill of exceptions and the printed
record are contradictory, the appellate court will
not review findings of fact. -Green v. Stacy
(Wis.) 627.

-

An assignment that the verdict is not sustain-
ed by the evidence. will not be considered where
it appears that important evidence in the case
is not contained in the bill of exceptions.-Oma-
ha Fire Ins. Co. v. Berg (Neb.) 862.

Where appellee's abstract denies the correct-
do not contain all the evidence, it will be taken
ness of appellant's abstract, and avers that both
as true, if not contradicted, and error in refusing
a new trial for insufficient evidence will not be
considered. - Hendericks v. City of Council
Bluffs (Iowa) 675.

the appellate court, the court below has no
Where the original papers have been sent to
power to amend the record unless, on applica-
tion to the appellate court, the record is re-
manded for that purpose.-Moore v. Booker
(N. D.) C07.

An assignment of error relating to the admis-
sion of evidence of a certain witness, will be
overruled if any of the evidence of that witness
is competent.-Eagle Fire Co. v. Globe Loan
& Trust Co. (Neb.) 895.

An assignment that the court erred in over-
ruling defendant's demurrer, which contains five
distinct grounds, without pointing out the error,
is not good.-Esty v. Magee (Iowa) 673.

An assignment of error that the verdict is
against the weight of the evidence is not good,
but it should be that the verdict is not sustained
by sufficient evidence.-Barmby v. Wolfe (Neb.)
318.

Record.

The giving and refusal of instructions will
not be reviewed unless the record discloses an

How matters brought into record.
To authenticate a document attached to the
record as the bill of exceptions, a certificate of
the clerk of court is necessary.-Martin v. Fill-
more County (Neb.) 863.

An affidavit in support of a motion for a new
trial, to be available on appeal, must be embod-
ied in a bill of exceptions.-Chicago, R. I. & P.
R. Co. v. Griffith (Neb.) 868.

A document attached to a record as the
bill of exceptions, must be shown to be such by
a certificate of the clerk of the court.-Yenney v.
Central City Bank (Neb.) 872.

Affidavits used on the hearing of a motion
for new trial will not be considered unless in-
cluded in a bill of exceptions.-Gray v. Godfrey
(Neb.) 41.

The court cannot determine the character of
the issues tried by affidavits, but only by means