and De Bord went that same evening to Council Bluffs, and Mayhew obtained a note for $1,000 and a mortage securing it, to be executed to him by Leora Sweigert and Amos Sweigert upon their home in that city. This note and mortgage he immediately assigned to the plaintiff. McMurchy continued his investigation, and the next day told Mayhew that the amount of the shortage was continually increasing, and that he was satisfied that the note and mortgage so assigned to plaintiff was not sufficient to cover the amount of the shortage that the books would show when his investigation was finally completed. He demanded and insisted on having security to double the amount of the defalcation. Thereupon Mayhew attempted to raise the money among his friends to pay off the shortage, but was unsuccessful, and he applied to the defendant Boucher, who was a friend of his, and who belonged to the same order as he did, to assist him. A conversation was had between Boucher, Mayhew, and McMurchy, in which it was stated by Boucher that Mayhew's friends were unable to raise the money, and McMurchy was asked if a note signed by Mayhew and a number of his friends would be accepted in place of the money. McMurchy replied that he was taking a different course in this case from that usually taken by the plaintiff in cases of embezzlement; that he would wire the president of the plaintiff, and ascertain if such a note would be received. The next day he exhibited a message to Boucher to the effect that plaintiff would receive a note for $1,000, due in six months, with interest at the rate of 7 per cent., signed by Mayhew and his friends as security, which security should be approved by Mr. De Bord, in lieu of the money. Thereupon De Bord made out the note, which was signed by Mayhew and Boucher, who took it, and made a canvass among the friends of Mayhew, members of the lodge to which he belonged, in order to obtain additional signatures. It is established beyond question that Boucher, at the time he procured the signatures of each of the other defendants, informed them that the plaintiff had discovered that Mayhew was short in his accounts to the amount of about $1,000; that McMurchy, acting for the plaintiff, had told him (Boucher) in Mayhew's presence that, in case the money was not paid or the security given within a few days, the plaintiff would prosecute Mayhew for embezzlement, and send him to the penitentiary; that if the money was paid, or the note in question signed and delivered, then no prosecution would be had. Each one of the defendants testified that upon being told these facts by defendant Boucher they signed the note in question for the purpose of preventing such criminal prosecution. It is further shown that none of the defendants owed the plaintiff anything, or had any interest in the transaction whatever except to assist Mayhew and prevent a

criminal prosecution. It is further shown that the fact of the giving of the Council Bluffs mortgage of $1,000 to the plaintiff was made known to the defendants, and each of them, and it is admitted by the plaintiff that it agreed that, if the note in question herein was paid promptly when it became due, it would retain the Council Bluffs mortgage, and the defendants should have the benefit of the same for their indemnity. It was further shown that when the investigation which was made at that time was completed so that the plaintiff was ready to receive the note in question, the shortage apparently amounted to $931.56; that thereupon the note was delivered to McMurchy or De Bord, and there was indorsed as a payment thereon the sum of $68.45, so as to make it correspond with the amount of the shortage which had been thus ascertained. It is further shown that when the note became due it was not paid, but was protested, and that thereupon defendant Boucher wrote a letter to the plaintiff, setting forth the facts claimed in the answer of the defendants that the note was given for the sole purpose of preventing the criminal prosecution of Mayhew.

The only point in dispute in this record is whether or not McMurchy told Mayhew, and also told Boucher in Mayhew's presence, that, if the note was not given or the money paid within a few days the plaintiff would prosecute Mayhew for embezzlement, and send him to the penitentiary; and, if the matter was thus arranged and settled, no prosecution should be had. The testimony upon this point is conflicting. Boucher testifies positively to these facts. His evidence is, in substance, as follows: That Mayhew, the principal on the note, called upon him about May 24, 1894, and stated that he (Mayhew) had been found to be short several hundred dollars in his accounts with his employer, the Smith Premier Typewriter Company, and that the auditor of the company had threatened a criminal prosecution unless the amount should be paid forthwith; that on the following day Mayhew, with McMurchy, the auditor of the company, called upon him, and McMurchy stated that Mayhew was short five or six hundred dollars; that his instructions from the home office were that whenever he found any employé of the company to be short in his accounts to take no risk, and not to delay, but cause arrest and prosecute; that he had wired the president of the company about Mayhew's shortgage, and had received a reply to take no chances, but prosecute; that out of friendship for Mayhew he had not followed instructions to prosecute, and would not do so if the amount should be either paid or secured; that, unless Mayhew should raise the money at once, he would have to begin a criminal prosecution against him. The following extracts are from Boucher's testimony: "Q. Was there anything said in

that conversation about the company refraining from prosecuting? A. Yes, sir. Q. What was it? A. McMurchy said that, unless the amount was paid forthwith, or immediately secured, until the money could be procured within a day or two, criminal proceedings would be at once instituted, and Mr. Mayhew would be arrested; and that, of course, if the money should be forthwith paid, or the security furnished, that he would not be arrested and prosecuted. Q. What was this proposition that he said he would lay before the company? A. Whether or not the company would accept a note, due in six months or a year, from Mr. Mayhew and his friends, for the amount of the shortgage that should develop." The witness further testified that he received the note from the attorney of the company, and took it to the other signers, and stated to them, among other things, that Mayhew was short with the company about a thousand dollars; that the company was about to prosecute him, but would refrain from doing so if a note with sufficient signers could be procured; and thereupon the others signed the note. The other defendants testified that these statements were made to them. In answer to a direct question the witness said: "It was expressly stated by Mr. McMurchy upon at least one occasion, and I think upon each and every occasion when the matter came up, that the company would accept this note, and would not prosecute Mr. Mayhew." Mayhew was never prosecuted for embezzling from the company. A letter from the witness to the president of the company, written when the note came due, was received in evidence. In that letter it was stated that the writer and the other signers of the note were induced to sign upon the promise of the company, through McMurchy, that, if they should sign, then Mayhew would not be prosecuted. A letter from the president in reply was received in evidence. Therein the writer stated that McMurchy had instructions from the company to prosecute all defaulting employés, but that the company had in this instance instructed him to take a note properly secured instead. cross-examination of Mr. Boucher by Mr. De Bord the following testimony was given: "Q. Did Mr. McMurchy ever promise to you, or say in your hearing, that the consideration of this note was that Mr. Mayhew was not to be prosecuted? A. He did. Q. When and where? A. He said that on the morning after I had submitted to him the proposition of giving a note instead of paying the cash, and at the time when he had said that he had received word from the Smith Premier Typewriter Company that they would accept a six-months' note, to be approved by you in lieu of the cash. Q. Where did that occur? A. In my office." Boucher's testimony was fully corroborated by the evidence of Mayhew. Mr. Moores, one of the de

On

fendants, on cross-examination, testified: "Of course, when I put my name to a piece of paper, if necessary, I expect to make that name good, if possible; but in this case it was done to prevent the Smith Premier Typewriter Company prosecuting Mayhew. I had every confidence to believe that Mr. Mayhew and his friends would pay this amount, and this signing the note was but a temporary step to stop criminal prosecution against him." The testimony of the other defendants was to the same effect. McMurchy, who testified in the case, denied that he made the statements detailed by Mr. Boucher and Mr. Mayhew. It does appear, however, in McMurchy's testimony, that Mayhew continued to try to interest his friends in the matter, and a proposition was made to Mr. De Bord and himself in Mr. De Bord's office in the New York Life Building that certain of Mr. Mayhew's friends would sign a note with him for $1,000. McMurchy said: "I stated at that time that we were acting not in accordance with the plans set forth by the president of the company in cases of embezzlement, and that I would be compelled to communicate with Mr. Smith before I could accept anything of the sort." Mr. McMurchy further testified in answer to this question: "Did you- In this conversation with Mr. Boucher, was there mentioned between you any reason why the proceedings in the case of shortage in accounts of embezzlement in the Mayhew case should be some different from others? A. Yes, sir. I think I said to him, after the proposition by Mr. Mayhew, that some of his lodge friends would help him out." Mr. McMurchy, on being asked a question by Mr. De Bord, stated: "You advised me that it would be best not to prosecute, and that the settlement as made would be the best thing; that Mayhew was a young man, quite prominent; that he had committed no crime previous to that time, and that circumstances connected with the case were an excuse for his embezzlement." He further testified, in speaking of Mr. Mayhew, as follows: "At the time he was presented with the accusation that he had embezzled these amounts he stated that he was preparing to pay them, and at all times and all through his conferences with me it was towards his paying up the amount that he had appropriated. Q. State whether you ever remember of Mr. Mayhew's breaking down, and crying, and begging for leniency. A. Yes. Q. He did that several times? A. Yes, he did that in your presence and in mine." The court asked Mr. McMurchy the following question: "Q. What was the object.--what did you understand at the time, if the note had not been given or security had not been given,-what did you understand would occur? A. I did not understand anything, for the reason that I would be compelled to follow instructions from Syra

cuse, from Mr. Smith, in that respect." It had been previously shown that Mr. McMurchy's instruction from Syracuse or from Mr. Smith was in all cases where there was a shortage to immediately prosecute for embezzlement, and take no chances.

The circumstances in this case are such as to corroborate the testimony of Mr. Boucher. It is proper to observe that Mr. Mayhew had assigned the note and mortgage for $1,000 to plaintiff to pay his shortage, which was then understood to be less than that amount. He had made restitution in full, so far as was then known. If he was not threatened with a criminal prosecution unless he should procure the note in question, thus securing double the amount of his shortage, and was not promised immunity in case he should do so, why was he breaking down, crying, begging for leniency, and making such strenuous efforts to comply with the plaintiff's demands? If there had been no threat to prosecute Mr. Mayhew, and no agreement to refrain from such prosecution, it is difficult to conceive why, or for what consideration, the note in question was given by these defendants. They were not particularly interested in the transaction. It would have made no difference to them whether Mr. Mayhew paid his debt to the plaintiff or not. Neither of them was in any way financially interested in the matter, nor in any manner security therefor. For want of space we do not feel justified in quoting any more of the testimony. It is apparent that the finding of the trial court was based upon conflicting evidence, and is entitled to the same weight and consideration as the verdict of a jury. After a full examination of the whole record, we are unable to say that the finding of the court was clearly wrong, and therefore it will not be disturbed. If the consideration for the giving of a note is the suppression of a criminal prosecution, the transaction is illegal and void, and no recovery can be had thereon. Buck v. Bank, 27 Mich. 293, 15 Am. Rep. 189; Clark, Cont. 431; Tied. Com. Paper, 183; Sumner v. Summers, 54 Mo. 340; Roll v. Raguet, 4 Ohio, 400, 22 Am. Dec. 759; Henderson v. Palmer, 71 Ill. 579, 22 Am. Rep. 117; Peed v. McKee, 42 Iowa, 689, 20 Am. Rep. 631. It is not material in this case that no criminal prosecution was actually commenced. "A promise not to institute a prosecution is as illegal a consideration as the dismissal of a prosecution already instituted." Tied. Com. Paper and Roll v. Raguet, supra. The court having found that the plaintiff had threatened to prosecute Mayhew for his shortage, and send him to the penitentiary, and agreed that, if the shortage was paid or secured by the giving of the note in question, no prosecution would be instituted, it follows that the judgment of the court upon such finding, declaring the note in question illegal and void and dismissing this action, was right, and should be affirmed.

For the foregoing reasons, we recommend that the judgment of the district court be affirmed.

OLDHAM and POUND, CC., concur.

PER CURIAM. For the reasons stated in the foregoing opinion, the judgment of the district court is affirmed.

RAWLES v. REICHENBACH et al. (Supreme Court of Nebraska. June 4, 1902.) HOMESTEAD-CONVEYANCE-CONTRACT OF

PURCHASE ASSIGNMENT-EVI

DENCE-USURY.

1. The homestead of married persons in this state cannot be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife.

2. Where a husband and wife are occupying premises as a homestead, held by either under a contract of purchase, the contract cannot be assigned, so as to create a lien upon the premises, except by an instrument executed and acknowledged by both husband and wife.

3. Evidence examined, and held sufficient to show the homestead character of the premises at the time of the assignment of the contract.

4. Evidence examined, and held to sustain the defense of usury, and that the debt had been fully paid and discharged.

(Syllabus by the Court.)

Commissioners' opinion. Department No. 1. Appeal from district court, Polk county; Bates, Judge.

Action by Mary J. Rawles against Samuel A. Reichenbach and another. Judgment for plaintiff, and defendant Reichenbach appeals. Affirmed.

Matt Miller, for appellant. M. A. Mills, F. D. Mills, and H. C. Beebe, for appellees.

DAY, C. Mary J. Rawles, a married woman, commenced this action in the district court of Polk county against S. A. Reichenbach and her husband, S. B. Rawles, praying that an assignment of a certain school-land sale contract, which assignment had been made by said S. B. Rawles to S. A. Reichenbach, be canceled and set aside; that the title to said premises be established and confirmed in the plaintiff as against the defendant Reichenbach; that said premises be decreed to be the homestead of the plaintiff; and that the defendant Reichenbach be restrained and enjoined from making any claim to said premises by virtue of the assignment of the said contract. The grounds upon which the plaintiff based her claim for relief were (1) that she was the owner of said schoolland sale contract, and that the assignment thereof by S. B. Rawles was made without her authority or consent; and (2) that the premises sought to be conveyed by the assignment of the contract were at the time the homestead of the plaintiff and her family, and that she did not join in the conveyance, or authorize it to be made. The plaintiff also made

a tender in court, for the use and benefit of the defendant Reichenbach, of $69.12, to reimburse him for payments made to the state of Nebraska on said contract during the period he was holding the same. The answer of the defendant Reichenbach admitted the marital relation of the plaintiff and S. B. Rawles, and denied generally the other allegations of the petition, and alleged that upon different dates he had loaned various sums of money to the defendant S. B. Rawles for the purpose of making payments to the state of Nebraska upon the said school-land contract; that on January 12, 1892, he had loaned to defendant Rawles $596.20 for the purpose of making payments upon said school-land contract, and, in order to secure the payment of this sum, defendant Rawles on said date assigned to him the said contract; that since that date the defendant had advanced and paid to the state of Nebraska, to keep said contract from becoming forfeited, the sum of $69.12. Reichenbach prayed that he have a lien upon the premises for the sums above named, with interest thereon. By his answer the defendant S. B. Rawles admitted the cause of action alleged in the petition, and, by way of answer and cross petition as against the defendant Reichenbach, alleged that in February, 1889, he and his wife and their children moved onto the land described in the said contract, and have ever since resided thereon, and occupied the same as a homestead; that the premises are of less extent than 160 acres, and of less value than $2,000; and that neither the plaintiff nor himself since February, 1889, have owned any other lands or town lots which they could claim or occupy as a homestead. He further denied that he borrowed from Reichenbach $596.20, or any other sum, at any time, to make payments upon said contract, and alleged that the indebtedness sought to be enforced by Reichenbach grew out of a usurious contract between himself and Reichenbach, and that the sums borrowed by him had been paid. He prayed that the assignment made by him of the land contract be declared null and void, that the premises be decreed to be the homestead of the plaintiff and himself, and that the various sums paid by him to Reichenbach be applied in full payment of the principal sum which may be found to be due to said Reichenbach. Το the cross petition of Rawles, Reichenbach filed a general denial. The trial resulted in a decree in favor of Mary J. Rawles, based upon findings that she was the owner of the schoolland sale contract, and that the assignment thereof by her husband was without her consent, and also that the premises were the homestead of the plaintiff and her family; and it was decreed that the clerk pay to the defendant Reichenbach the sum of $69.12, tendered to him on account of payments advanced by him upon the contract. The court also found that the defendant S. B. Rawles on January 12, 1892, was indebted to Reich

enbach on two promissory notes,-one for $225.50, dated March 1, 1890, and one for the sum of $325, dated April 24, 1889; that the notes were renewed from time to time, and that the notes now held by said Reichenbach against Rawles upon which a recovery is sought are renewals of said notes, and are not based upon any other consideration; that the original notes were usurious; that on March 1, 1890, said S. B. Rawles entered into a verbal contract to pay interest upon said indebtedness at the rate of 18 per cent., and that said Rawles has paid to said Reichenbach on said indebtedness the sum of $753.82, and that said sum so paid is more than sufficient to pay the principal of all sums of money loaned by Reichenbach to said Rawles; and that, after applying the payments made by said Rawles to discharge the principal, there is nothing due the defendant Reichenbach. And on the issues between the defendant Reichenbach and Rawles, the court found for the defendant Rawles. From this decree the defendant Reichenbach has brought the case to this court by appeal.

The record in this case is quite volum:nous, and the testimony upon all the questions presented is conflicting, and, with respect to the amount of the payments made by Rawles to Reichenbach, is very unsatisfactory. In our opinion, however, the evidence fairly establishes that the plaintiff was the owner of the school-land sale contract, which had originally been issued to one J. H. Haine, and by him sold to the plaintiff, but by an error the assignment thereof was made to S. B. Rawles. To correct this mistake, S. B. Rawles executed to the plaintiff an assignment of the contract upon a separate paper, which was attached to the contract. This latter assignment was removed by S. B. Rawles without the knowledge or consent of the plaintiff, and an assignment made by him to defendant Reichenbach as security for certain indebtedness owed by S. B. Rawles. The testimony also shows that, at the time of the assignment of the contract by Rawles to Reichenbach, the plaintiff and her family were occupying the premises as a homestead, and that the plaintiff did not join in the assignment,-in fact, it was made without her knowledge. Section 4, c. 36, Comp. St., provides that "the homestead of a married person can not be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife." This statute has been construed by this court on a number of occasions, and the plain import of its provisions has been upheld. Violet v. Rose, 39 Neb. 660, 58 N. W. 216; Whitlock v. Gosson, 35 Neb. 829, 53 N. W. 980; France v. Bell, 52 Neb. 57, 71 N. W. 984. In Giles v. Miller, 36 Neb. 346, 54 N. W. 551, 38 Am. St. Rep. 730, it is said: "The ownership need not be of an estate in fee simple, but the owner of the

equitable title, occupying under a contract of purchase, may claim the exemption of the statute."

Upon the issues presented upon the cross petition of S. B. Rawles, it appears with reasonable certainty that on or about March 1, 1890, Rawles was indebted to Reichenbach upon two promissory notes,-one for $225.50, dated March 1, 1890, and by its terms bearing interest at 10 per cent., and one for $325, dated April 24, 1889, and by its terms bearing interest at the rate of 8 per cent. It also appears that about that time the defendant Rawles entered into an agreement to pay interest upon the indebtedness at the rate of 18 per cent., and for some time paid the interest at that rate, or included the amount in the renewal notes which were given from time to time. The court found that Rawles had paid upon the indebtedness at different times sums aggregating $753.82. While we are unable to arrive at this amount as being the amount of the payments made by Rawles, we think the finding of the court is approximately correct, and that the payments made by Rawles would satisfy the principal loan, with interest thereon at the legal rate.

We therefore recommend that the judgment of the district court be affirmed.

HASTINGS and KIRKPATRICK, CC.,

concur.

PER CURIAM. For the reasons stated in the foregoing opinion, the judgment of the district court is affirmed.

FARMERS' STATE BANK ▼. BALES. (Supreme Court of Nebraska. June 4, 1902.)

JUDGMENT OF JUSTICE-DOCKETING WITH DISTRICT CLERK-DORMANCY.

1. The filing of the transcript of a judgment of a justice of the peace or county court with, and the docketing of it by, the clerk of the district court, do not make it a judgment of the district court. Moores v. Peycke, 62 N. W. 1072, 44 Neb. 405.

2. A judgment rendered by a justice of the peace, a transcript of which is duly filed and docketed in the office of the clerk of the district court, becomes dormant where no execution thereon is issued after five years from the date of its rendition, and the filing of a transcript of such judgment in the district court will not have the effect of keeping it alive for five years from the date of such filing.

(Syllabus by the Court.)

Error to district court, Dixon county; Graves, Judge.

Action by Benjamin Bales against the Farmers' State Bank. Judgment for defendant, and plaintiff brings error. Affirmed.

F. A. McMaster, for plaintiff in error. John V. Pearson, for defendant in error.

HOLCOMB, J. From an order of the district court sustaining a motion to quash an 90 N.W.-60

execution and an order of garnishment issued on a judgment claimed to have become dormant, the judgment creditor prosecutes error. But one question is presented for consideration and argument in briefs of counsel, and that is whether a judgment rendered by a justice of the peace, a transcript of which has been filed in the office of the clerk of the district court, and properly entered on the records thereof, and on which no execution has been issued, becomes dormant after five years from the date of its rendition, or will the filing and docketing of the transcript of such judgment serve to keep it alive for five years from the date of such filing and docketing? Plaintiff in error contends for the latter proposition, while the defendant in error maintains the district court was right in holding to the former as the true rule. The execution quashed by the trial court was issued within five years from the date on which the judgment which had been rendered by a justice of the peace was transcripted and docketed in the office of the clerk of the district court, but more than five years had elapsed from the date of the rendition of the judgment by the justice of the peace. Section 1047 of the Code of Civil Procedure provides that execution for the enforcement of a judgment rendered by a justice of the peace, where it has not been docketed in the district court, may issue on the application of the party entitled thereto at any time within five years from the date of the entry of the judgment or the date of the last execution issued thereon. By section 482 it is provided that, if execution is not sued out within five years from the date of any judgment rendered in any court of record, or if five years intervene between the date of the last execution issued thereon and the time of suing out another writ, the judgment shall become dormant, and cease to become a lien on the estate of the judgment debtor. Section 561 provides that, as to judgment rendered by a justice of the peace, then parties in whose favor they are rendered may file a transcript thereof in the office of the clerk of the district court, which shall be entered and docketed therein in the manner provided; and in the next section (562) it is said such judgment shall be a lien on the real estate of the judgment debtor from the time mentioned with respect to the time of filing the transcript in the same manner and to the same extent as if the judgment had been rendered in the district court. It is urged by the plaintiff in error that by virtue of the language used in the last section we have referred to the filing of the transcript, in the district court, of a judgment rendered by a justice of the peace, gives to such judgment, at the time of the filing of the transcript, all of the qualities as if it were a judgment then actually rendered by the district court,-that is, to all intents and purposes the filing of a transcript of and docketing such judgment makes it, in effect,