THE PEOPLE v. MCCALLUM.

that the official bond of any officer is no security for the want of faithful discharge of any additional duty which may from time to time be imposed upon such officer by

law.

To settle any point which might again arise under this law, I have considered the broad question whether county clerks can be required to give any other bond than that given as county clerks before they can demand the right to exercise the duties of clerk of the District Court. This question is not fairly presented by the record in this case, and this point might have been dismissed, in my opinion, with that suggestion. It is alleged simply that McCallum, “failed and neglected," to give the bond contended for; not that he refused so to do. For reasons, some of which I have already alluded to, it may have never occurred to McCallum, that any other bond than that given was required. The very conduct of the relator in accepting and acting for a time under a deputyship given him by the defendant, was cal culated to induce that ignorance of such requirement; and before the court undertook to exercise the inherent right of supplying itself with a clerk when none is provided, or before the relator can ask that McCallum be dismissed and himself be instated, it should appear, that by order of court or otherwise, McCallum was required to present his bond for approval, and that he refused so to do. I could not consent to see one driven from an office, in which the partiality of his fellow citizens had placed him, for innocently neglecting to meet a requirement of the law which, perhaps upon the sligthest intimation, would have been cheerfully complied with.

Some further point, if I understood counsel, was sought to be made, that the defendant has not alleged in his answer the making of a proper bond, as county clerk even. After setting out his election in October, 1869, as County Clerk of Otoe county, the defendants answer recites, the making of

THE PEOPLE v. MCCALLUM.

a bond signed by several persons named, "conditioned for the faithful performance, of all the duties required by law of said George R. McCallum, in consequence of his said election." This condition, I understand, is complained of as not being for the faithful performance of his duties as County Clerk, &c. As is the usual phraseology, I can hardly believe this point was urged with any confidence. If it were necessary to recite the giving of a bond at all, there can be no mistaking what is there set forth for any other effort to aver that fact. It would seem that none, but the wilfully blind, could fail to discover, that "the duties required by law in consequence of his said election" immediately following the averment of his election as county clerk, means the duties of county clerk. If it is susceptible of any other interpretation, it may be said to be ambiguous. That is not a cause for demurrer. The court may, in such cases, be asked to order the pleadings to be made more certain.-Olcott v. Carroll, 39 N. Y. 436.

The judgment of the court below overruling the demur rer, must be sustained.

Judgment affirmed.

MASON, Ch. J. dissented to that part of the above opin ion in regard to the bond of McCallum.

HOMAN V. LABOO.

Homan v. Laboo.

1. INSTRUCTION TO JURY after they have retired. It is perfectly proper when a jury returns into court and requests further instructions, for the judge, in the presence of the parties or their counsel, to repeat what he has already said, or add whatever is proper in the case, which will aid them in reaching a conclusion.

2.

-: Presumptions of correctness. If the record does not show that it contains all the testimony, it will be presumed that there was evidence which would justify a charge of the court, although it does not appear at large.

8. REPLEVIN: Demand. Under the Code, in Nebraska, in an action of replevin. in which ownership in the plaintiff is established, proof of demand by him of the defendant of the property before suit, is not necessary to maintain his action.

4.

5.

6.

:

If, at the service of the order, the defendant is not the owner of, or has not a special interest in the property but holds the same innocently, only nominal damages can, without demand, be recovered by him.

If such be the fact he should so plead, and then he will have nominal damages and costs.

If such be the fact, but he alleges property in himself, bemand need not be proved in order to maintain the action against him.

This was an action of replevin of a pair of mules, brought by Homan against Laboo and Ward, in the District Court for Otoe county.

Laboo answered separately, alleging that he was the owner of the property.

The cause was tried to a jury. The plaintiff was sworn on his own behalf, and testified that he was surety for Ward in a replevin suit pending before a justice of the peace, in Douglas county, and that Ward placed the mules in his possession as security. While they were there, Ward came to him and told him he had gotten one Jennings to take his place on the bond, and would get him, Homan, released from his liability thereon, with which the latter

HOMAN V. LABOO.

expressed satisfaction. The following morning, Ward went to the plaintiff's stable before he was there, and told the man in charge that he had arranged with Mr. Homan that he should have the mules, and then took them away. Homan had been compelled to pay the bond which he was on for Ward. He found the animals in Laboo's possession and brought this action.

Laboo showed that he purchased them of Ward just after they were taken from Homan's stable. The bill of exceptions did not show whether it contained all of the testimony or not.

After the jury had been charged by the court, and had retired and had deliberated sometime, they returned into court saying, that they could not agree because of differences of law and of fact. The court then instructed them as follows: "Although you may believe from the evidence that the defendant, Ward, left the mules in controversy with the plaintiff Homan, and that he obtained possession of them from Homan by false and fraudulent representation, yet if Homan, after having parted with them, let them remain in Ward's possession two or three months, and permitted Ward to hold them out to the world as his own property, and Ward sold them to Laboo, an innocent purchaser, then you should find for the defendant, Laboo. If, in this par ticular case you find no demand, you should find for the defendant.

The jury returned a verdict for Laboo for three hundred and thirty-eight dollars and seventy-three cents, upon which judgment was entered.

The plaintiff brings the cause here by petition in error.

Calhoun and Croxton, for plaintiff in error.

No one can give what he has not himself; and, therefore, no one can give a good title who has no good title.-1st

HOMAN v. LABOO.

Parsons on Contracts, book 3, Ch. 4, p. 520; McGrew v. Browder, 14 Mart (La.) 17; Roland v. Grundy, 5 Ohio, 202; Browning v. Magill, 2 Har. & J. 308; Dame v. Baldwin, 8 Mass. 518; Wheelwright v. Depeyster, 1 Johns. 479; Hosack v. Weaver, 1 Yates, 478; Lance v. Cowan, 1 Dana, 195; Ventress v. Smith, 10 Peters, 161.

Where a person has acquired property by fraudulent representations, he acquires no right in the property, and the owner may retake the same, in the same manner as he would be permitted to retake stolen property.—2nd Parsons, part 2 ch. 3, p. 786; Hodgeden v. Hubbard, 18 Vt. 504.

If a vendee (or person) obtains possession of goods or chattels by fraud he can derive no rights, and the vendor (owner) can lose none by such delivery.—Earle of Bristol v. Willsmore, 1 B. & C. 514; Hussey v. Thornton, 4 Mass. 405; Donahue v. Cromartie, 21 Cal. 80; 1st Parsons on Contracts, book 3, ch. 4, p. 527.

We claim that no demand was necessary in this case. And, if necessary, we refer to the decision of this court, recently made in a case to us unknown.

T. B. Stevenson, for defendant in error.

It is not error to instruct the jury in open court even after they have retired to consider of their verdict.-Code, Title 9, Sec. 287; O'Connor v. Guthrie & Jordan, 9 Iowa, 80; State of Iowa v. Pitts, 9 Iowa, 343.

All the instructions taken together, especially in a civil. case, must be erroneous to sustain error. One single para. graph of the instructions, though, if alone erroneous, is not sufficient.

There is no error in the instructions in this case, as the case was replevin in detinet, and there is no proof that Peter Laboo wrongfully took, or obtained the property by