brought to recover against a stockholder as such, but upon the agreement to pay the sum of $5,000 to the use of the corporation thereafter to be organized, and for the purposes named in the contract. Counsel for defendant presents his brief, which, in effect, is a reargument of the question raised and decided upon the former hearing, and we do not feel called upon to repeat or reargue the questions which were there decided. We must adhere to our former opinion. The judgment should be affirmed. 1. A petition of the plaintiff alleging overpayments to the defendant under a contract of lease and rental, which from the evidence were voluntary payments, held not to state facts sufficient to constitute a cause of action. 2. If the facts stated do not constitute a cause of action, filing an answer by defendant is not a waiver of the defect. Farrar v. Triplett, 7 Neb. 240; O'Donohue v. Hendrix, 13 Neb. 255, 13 N. W. Rep. 215. 3. A defect in a petition which would be fatal to recovery may be taken advantage of at any time. Railroad Co. v. Crockett, 17 Neb. 572, 24 N. W. Rep. 219. 4. Voluntary payments cannot be recovered back. Herman v. Edson, 9 Neb. 152, 2 N. W. Rep. 368. 5. Money paid by mistake may in some cases be recovered back in an action at law, but in such cases the mistake must be pleaded and proved. Foster v. Pierce Co., 15 Neb. 50, 17 N. W. Rep. 261. (Syllabus by the Court.) Error to district court, Adams county; GASLIN, Judge. Action by William M. Willis against Mercy Renfrew for an accounting. Verdict and judgment for plaintiff. Defendant brings error. Reversed. Batty, Casto & Dungan, for plaintiff in error. COBB, C. J. The plaintiff below, on December 6, 1888, alleged that on the 18th day of February, 1886, in the county of Adams, this defendant and plaintiff entered into a written agreement and contract, of which the following is a true and correct copy: "This writing witnesseth that Sylvester Renfrew and William M. Willis, of the county of Adams, state of Nebraska, hereby covenant and agree that if the said Willis shall well and truly make the payments as hereinafter written and set forth to be made by him, each and all, when the same shall become due and payable, and faithfully perform all his part as set forth in this writing, he shall be privileged to occupy and use all that part of sections 25-10-9 and 25-10-10 lying north of the south channel of the Platte river in Hall county, Nebraska, for the term of five years from and after the first day of March, 1886, and no longer. In consideration of which privilege and use, and as rental therefor, the said Willis hereby agrees to pay to the said Renfrew eight hundred dollars per annum, to be paid on or before the last day of December of each year, to-wit, eight hundred dollars on the 31st day of December, 1886, and eight hundred dollars on the 31st day of December of each year thereafter until and including the year 1890, and as early as the first day of March of each year to execute and deliver to the said Renfrew full and ample security for the payment of the rental of that current year, by mortgage or otherwise, that shall be satisfactory to the said Renfrew. Said Willis shall, as a further consideration for the use of said premises, deliver to the said Renfrew ten tons of good hay in stack, on the place, from each year's cutting, to be removed at the pleasure of said Renfrew. It is further agreed that the said Willis shall mow the grass on the land lying south of the pasture fence and west of the railroad each year for hay, wherever the willows do not render the mowing of the same impracticable, and properly stack and care for the hay thereon, and any willow patches not practicable for mowing may be plowed and cultivated to exterminate the willows, then seed to tame grass, and such willow patches not mown or plowed by said Willis during the two first years may be plowed and used by said Renfrew during the balance of this agreement without otherwise affecting or changing the terms or payments of rental. Said Willis shall not make any changes in the buildings or fences now on the place other than necessary repairs: nor shall he make any repairs or improvements on said premises at the expense of said Renfrew without his written consent thereto. It is espe cially agreed by the parties hereto that in case the said Willis shall fail to make any or either of the payments as above written when the same shall become due and payable, or to give the securities therefor, at the time and in the manner set forth, to the satisfaction of the said Renfrew, then and in that case the said Renfrew may at his option declare this agreement forfeited by the said Willis, and re-enter and take full possession of said premises with or without due process of law, and from and after the time of such failure on the part of said Willis his right to occupy and use the premises or any part thereof shall cease: provided, that the right to so declare forfeiture and re-enter and take possession shall in no wise bar the said Renfrew from recovering any unpaid rental that may have accrued at the time of regaining such possession, or any damage he may have sustained by reason of such failure on the part of the said Willis. Said Willis shall so watch and care for the premises, and the buildings, fences, wells, wind-mill, and tanks, etc., thereon, as to prevent unnecessary waste or decay. He shall not lease or let the premises, or any part thereof, to any person or persons whomsoever, without the written consent of the said Renfrew. He shall at the expiration of five years, as above written, vacate the premises to the said Renfrew in good condition and without notice. Witness our hands this 18th day of February, 1886. SYLVESTER REN FREW. W. M. WILLIS. CLARA B. PARR, Attest." (2) That under and by virtue of said agreement the plaintiff entered upon and took possession of the premises described in the same on the 1st day of March, 1886, and remained in possession of said premises for the period of two years from said 1st day of March, 1886. (3) That during the said time the plaintiff paid and delivered to the said defendant the following sums of money and property, to-wit: During the year 1886 from the 1st day of March thereof up to and including the 4th day of July, 1887, hay and cash to the amount of.. -The same being rent for said premises under the contract aforesaid. $ 800 00 800 00 71 05 175 00 237 51 1,519 66 145 00 50.00 50 00 24 00 $3,372 22 "$350. Hastings, Nebr., February 26, 1886. On or before the 26th day of February, 1887, for value received, I promise to pay to the order of Sylvester Renfrew three hundred and fifty dollars, with interest at the rate of ten per cent. per annum, payable annually, from date until paid. W. M. WILLIS." There is now due the defendant from the plaintiff rent for 1886 and 1887 as follows: The sum of $1,710, with interest at 7 per cent. per annum from the 1st day of January, 1888; total, $1,879.20. There is due on the $650 note as follows: Principal, $650; interest at 10 per cent. from February 26, 1886, to May 20, 1889, the sum of $210.34; total, $560.34. There is due on the $350 note as follows: Principal, $350; interest from February 26, 1886, to May 20, 1889, at 10 per cent., $110.82; total, $460.82. There is due on the $200 note as follows: Principal, $200; interest from April 9, 1887, to May 20, 1889, at 10 per cent. per annum, $42.21; total, $242.21,--making due from the plaintiff to the defendant from all sources the total sum of $3,442 57. There has been paid on said indebtedness from time to time the sum of $2,645.61, leaving a balance due to the defendant from the plaintiff in the sum of $796.69, for which amount, with costs of suit, this defendant asks judgment. The plaintiff replied-First. That according to the terms of the lease as set forth in plaintiff's petition the rent to be paid by the plaintiff to the defendant for the prem (4) Plaintiff further alleges that the money was paid to the defendant, and the labor was done and performed by the plaintiff for the defendant, at defendant's special instance and request, by virtue of the contract and agreement aforesaid. (5) That of the money paid by the plain-ises therein described was $800 in cash, and tiff to the defendant, the defendant is entitled to a credit of $1,600, and no more, for the rent of the premises for the period of two years beginning on March 1, 1886, and ending on March 1, 1888. (6) That the balance of said money, towit, $1,772.22, is wholly due and unpaid from the defendant to the plaintiff. The defendant answered that she admits the making of the lease mentioned in said petition. Further answering, says that the plaintiff only occupied said premises two years, and on account of the rent there was due the defendant $1,600 in money, and 20 tons of hay; that said 20 tons of hay were reasonably worth the sum of $110. The defendant therefore says that there was due her on account of the rent of said premises described in said lease the sum of $1,710. The defendant further says that the said plaintiff, for a valuable consideration, executed and delivered to the said Sylvester Renfrew, during his life-time, the following promissory notes, to-wit: $200. Hastings, Nebr., April 9th, 1887. One year after date, for value received, I promise to pay to Sylvester Renfrew, or order, two hundred dollars, with interest thereon at the rate of ten per cent. per annum from date until paid. WM. M. WILLIS. "$650. Hastings, Nebr., February 26th, 1886. On or before the 26th day of February, 1888, for value received, I promise to pay to the order of Sylvester Renfrew six hundred and fifty dollars, with interest at the rate of ten per cent. per annum, payable annually, from date until paid. W. M. WILLIS. 10 tons of hay, cut, and delivered to the defendant in the stack; but that on account of loss of hay during the first year the said premises were occupied by the plaintiff under said lease, and by reason of other losses sustained by the plaintiff in the management of said premises, the said lease was changed like this, to-wit, the defendant releasing said Willis from bis obligation under said lease to cut and deliver to the said defendant the 10 tons of hay as provided in said lease. Second. Plaintiff, further replying, says that, at the end of the first year, said written lease was abandoned, and by mutual agreement between the plaintiff and the defendant held for naught, and that a new oral lease for the same premises was entered into, whereby the plaintiff was to pay for the use of said premises the sum of $800, and no more; that said sum of $800 has been fully paid for the year expiring March 1, 1888. Third. Plaintiff, further replying, says that the $800 note mentioned in the defendant's answer was given by the plaintiff to the defendant for money borrowed by the plaintiff of and from the defendant; that said note was secured by a chattel mortgage upon a large amount of personal property, to-wit, live-stock be longing to said plaintiff; that on the 8th day of March, 1888, said live-stock was sold at public sale, the proceeds of the sale thereof, negotiable promissory notes, were by the plaintiff turned over and delivered to the said defendant in full liquidation of the said note of $800, whereby the same was and has been fully paid and satisfied. Fourth. Plaintiff, further re plying, says that the two notes, one for $650 and the other $350, as described and set forth in defendant's answer, were made and delivered by the plaintiff to the defendant, and were secured by real-estate mortgage upon certain real estate situated in the city of Hastings, Adams county, Neb.; that on the 16th day of August, 1889, said defendant instituted in the district court of Adams county, Neb., a proceeding for the purpose of foreclosing said mortgage, whereby to satisfy the said notes; that said case of foreclosure on said notes is still pending and undetermined in this court; that the property se. cured by said mortgage is amply sufficient in full to more than satisfy the principal and interest on said notes, together with the costs of the foreclosure. The plaintiff denies each and every other allegation in the defendant's answer contained. On May 25, 1889, there was a trial to a jury, with a verdict for the plaintiff for $838.17. The defendant's motion for a new trial being overruled, judgment was entered on the verdict. The plaintiff in error assigns the following for review: (1) Error in allowing any evidence to the jury, for the reason that the petition fails to state a cause of action. (2) In excluding defendant's Exhibit 4. (3) The verdict is contrary to law, and not supported by any evidence. The record discloses the history of this action in a clouded multiplicity of accounts between two neighbors, landlord and tenant, running through four years, under the contract set forth. The balance claimed by the defendant on the trial was $796.69, and the verdict for the plaintiff was $838.17, though the amount claimed was $1,772.22. However scrupulously or carelessly the accounts of their transac tions were cast up and rendered by these parties to each other will not be the subject of review. Those questions of fact may be again considered by a jury, and the questions of law only are to be considered here. The first objection is believed to be well taken,-that the petition fails to state a suflicient cause of action. It appears at the opening of the trial the defense objected to the introduction of evidence for that reason. The answer of the defendant did not waive that defect; nor are the defects in the substance of the petition cured by the answer. If the petition failed to state a sufficient cause of action, it will not support the present judgment. We find that the former decisions of the court support these propositions. Farrar v. Triplett, 7 Neb. 240; Haggård v. Wallen, 6 Neb. 272; O'Donohue v. Hendrix, 13 Neb. 255, 13 N. W. Rep. 215; Thompson v. Stetson, 15 Neb. 112, 17 N. W. Rep. 368. The petition, then, must stand on its allegations, unaided by any other pleading or proceeding in the case, and to it alone our attention is directed. The right of the defendant, after judgment, to object to the petition on this ground will not be questioned. The objection on the trial was urged that if the payments were in fact made, as set out in the petition, from October 8, 1887, to April 7, 1888, they were voluntary payments, without any allegation that any part of the $3,348.22 was made by mistake of the plaintiff, or superinduced by any fraud practiced by the defendant. If the payments were voluntary, and if it does not appear upon what account, claim, or pretext $1,772.22 of the total sum was paid over to the plaintiff in error's testator in his life time, it is then clear that the petition in this case will not support the judgment, on the ground that voluntary payments cannot be recovered back in an action at law. Herman v. Edson, 9 Neb. 152, 2 N. W. Rep. 368; Foster v. Pierce Co., 15 Neb. 48, 17 N. W. Rep. 261. The allegation of the petition that these payments were made at the special instance and request of the defendant, by virtue of the contract set forth, when no part of the sum of the verdict was claimed to be due on the contract, is neither a device nor an evasion, but in this case is simply a negation, with the strong presumption that, if paid at all, the money was voluntarily paid. In the absence of allegation or proof to maintain the obligation of such payments, the first assignment of error is sustained. The second assignment is for error in excluding a memorandum of settlement between the parties in the life-time of defendant's testator, and in his hand writing. While such memorandum might have been useful and proper to refresh the memory of the witness who testified to its purport, we think it was properly excluded as a settlement between the parties, with such_instruction to the jury, and is over ruled. From what has been said, the third assignment, that the verdict is contrary to law, and is not supported by the evidence, must be sustained, and the judgment reversed. The cause is remanded to the district court for further proceedings in accordance with law. The other judges concur. STATE ex rel. EBLE v. LEAVITT et al. (Supreme Court of Nebraska. Oct. 23, 1891.) REGISTRATION OF VOTERS - PLACE OF VOTINGPROVIDING POLLING PLACES. 1. The city of N. is a city of the second class, having more than 2,500 inhabitants, and is divided into four wards. The city is within N. precinct, which is six miles square, and contains outside of the city about 300 voters. The counscribed into a voting precinct, the votes to be ty board has organized the territory above decast in the city of N. Held, that the powers of a board of registration of the city of N. did not authorize such board to register any voter outside of the city limits. 2. That every legal voter of the precinct is entitled to vote at the place provided for that purpose by the county board, although such place may be within the limits of a city of the second class; and, where there is more than one voting place in such city, he may vote at any one of them. 3. It is the duty of the county board to provide a suitable number of polling places to accommodate the voters of the county, and doubt the board may be compelled, in a proper proceeding, to provide proper facilities. (Syllabus by the Court.) Mandamus. no Application of Charles Eble for a peremptory writ of mandamus to William Leavitt and others, as a board of registra tion, to compel them to register the relator as a legal voter of the city of Norfolk. Writ denied. George H. Hastings, Atty. Gen., for the State. Barnes & Tyler, for respondents. cast his vote at the coming general election, above mentioned; that each of the said several boards of registration, and all of them, refused to register your relator as a legal voter in said city of Norfolk, and still refuses so to do; that the reason assigned for such refusal by each of the several boards of registration is that your relator is not a resident of the city of Norfolk, and has not resided within any of the said wards, or within the incorporate limits of the said city, and is therefore not entitled to register or cast his vote in the said city at the said election; that it is claimed on the part of the said boards, and each of them, that the persons residing outside of the incorporate limits of the city of Norfolk, and within the precinct, as above stated, of which your relator is one, are not entitled to vote within the said city, or in any of the wards thereof, but that a separate polling place should be established outside of the corporate limits of the said city, where your relator and all other legal electors of the said Norfolk precinct so residing outside of the said city limits should cast their votes; and that said persons, including your relator, are not required to register before voting, and are not entitled to be registered for that purpose. (5) That the common council of the said city of Norfolk has never, in any manner, divided the ter MAXWELL, J. The relator alleges in his petition that "he is a bona fide resident of the state of Nebraska, and has been for more than twenty years last past; that he is a citizen of the United States, and a duly and legally qualified elector of the state of Nebraska; that he has resided in the county of Madison, and that portion of said county known and called 'Norfolk Precinct; that he has so resided therein for more than ten years last past, and is entitled to the privilege of casting his vote at the coming general election to be held in this state on the 3d day of November, A. D. 1891. (2) That the city of Norfolk, which is situated within the boundaries of said Norfolk precinct, as aforesaid, is a city of the second class, having more than 2,500 inhabitants; that it is duly organized as such, and is exercising all the rights, duties, privileges, and franchises of such city; that the said city is situated within the boundaries of Norfolk precinct, which said precinct comprises a large amount of territory lying outside of the city limits of said city, and which said territory has residing therein, and in the said precinct, a large number of legal vot-ritory lying outside of the incorporate limers and electors, to-wit, more than 300 in number, who reside outside of the city limits of the said city; that said Norfolk precinct is one of the voting precincts of said county of Madison, duly established by the board of county commissioners thereof; that it comprises a portion of said county 6 miles square, and that the said city of Norfolk, above mentioned, is situated within the said territory, and comprises only a small portion thereof, and but a small portion of the said territory lies within the incorporate limits of the said city. (3) That the said city of Norfolk is divided into wards, voting precincts, as provided by law, to-wit, the 1st, 2d, 3d, and 4th wards; and that the defendants William Leavitt, H. W. Winter, and A. H. Keisan are the duly appointed, qualified, and acting board of registration for the First ward of said city of Norfolk; that E. G. Hielman, L. M. Gaylord, and W. F. Ahlman are the duly appointed, qualified, and acting board of registration in and for the Second ward in the said city; that August Sattler, George Correvon, and C. G. Miller are the duly appointed, qualified, and acting board of registration in and for the Third ward in said city; that E. G. Hyde, G. W. Beymer, and P. H. Nelson are the duly appointed, qualified, and acting board of registration in and for the Fourth ward in said city of Norfolk, aforesaid. (4) That on Wednesday the 14th day of September, 1891, your relator, who resides outside of the incorporate limits of the said city of Norfolk, duly presented himself to each of the several boards of registration above named, and asked and demanded of the said boards, and each of them, that he be registered as a legal voter, to the end that he might be entitled to its of said city, and within said Norfolk precinct, as aforesaid, into wards or voting districts or precincts, and has not attached the same to any ward or wards within the said city; that the board of commissioners of said county has not established a polling place in said precinct outside of said city limits, but offer to do so, if they have the right and authority so to do; that your relator desires to be registered as a legal voter, so that he may cast bis vote at the coming election: that he in good faith applied to the said boards of registration for that purpose. and that they wrongfully and unlawfully refused to register your relator, and to permit him to be registered, in any of the several wards of the said city, and that, unless compelled so to do by a writ of mandamus of this court, your relator will be deprived of his privilege of casting his vote at said election, and that he has no adequate remedy at law in the premises. Wherefore your relator prays for a peremptory writ of mandamus directed to the respondents herein, commanding them to forthwith register the relator as a legal voter in the manner provided by law." The defendants demur to the petition, and the cause is submitted on the demurrer. Section 1. c. 76, Comp. St., provides: "It shall be the duty of the mayor and council of any metropolitan city, or city of the first class, or city of the second class having over 2,500 inhabitants, which shall include all portions of the voting precinct in which said city is situated, to cause to be prepared books for the registration of names and facts required by this act; said books to be known by the general name of Registers,' and to be so arranged as to admit of the entering, under the name of each street or avenue in each election pre- | cinct, and the number of each dwelling on any such street or avenue, if there be a number thereto, and, if there be no number, then under such definite description of the location of the dwelling-place as shall enable it to be readily ascertained and found, the names of all legal voters in each dwelling in each of said precincts, who shall apply for registration. Such register shall be ruled in parallel columns, in which opposite the name of every applicant for registration shall be entered the words and figures hereinafter provided in this act, and shall be of such size as to contain not less than 800 names, and so prepared that they may be used at each election in any city governed by the provisions of this act, until such time as in this act provided for the succeeding general registration, and shall on the inside be in form as follows, to-wit: the corporate limits of a city of the second class, shall correspond with the ward lines in such city, and such precinct shall correspond in number with the wards of the city, and be co-extensive with the same: provided, that, when a ward is divided into two election districts, the precinct corresponding with such ward shall be divided so as to correspond with the election districts: and provided, further, that no justices of the peace or constables shall be elected in such precinct, and every such city shall constitute a district for the election of justices of the peace and con. stables, and in every such district there shall be elected two justices of the peace and two constables at the time provided by law for the election of such officers in other districts." The division of a county into suitable voting precincts is devolved upon the county board of a county. It is presumed that that body will do its duty, It will be seen that the power of the board of registration is confined to voters residing within the city. The provision in the statute that the district "shall include all portions of the voting precinct in which said city is situated" does not extend the powers of the board so as to include voters residing beyond the limits of the city. It is designed to prevent any portion of the city from being omitted. In other words, the registration districts shall include the whole city, so that no voter shall be omitted. Section 60, c. 18, provides: "Each board of county commissioners shall divide the county into convenient precincts, and, as occasion may require, erect new ones, subdivide precincts already established, and alter precinct lines. And whenever any portion of territory containing, in the aggregate, not less than one township of land, and not more than four townships lying contiguous, shall contain not less than fif teen voters, it shall be the duty of the county commissioners, on receipt of a petition, signed by a majority of the legal voters therein, to constitute such portion of the territory a voting precinct." Section 9, c. 14, art. 2, provides: "Precinct lines in that part of any county not under township organization, embraced within and provide a sufficient number to accommodate the voters. The voter necessarily must vote at such place in his precinct as the county board shall provide. This may not be the best or most accessible place for that purpose, but, nevertheless, he must vote at the place provided or not vote at that election. The county board, however, must provide a polling place in each precinct where all the voters therein may be accommodated. The board cannot disfranchise any voters by refusing or neglecting to create a polling place in any precinct. A republican form of government can only be maintained by the untrammeled exercise of the elective franchise, and counting the ballots cast and carrying into effect the will of the electors as declared through the ballot-box. The powers of a board of registration of a city extend only to residents of the city em braced in the election district for which the board is sitting. Such boards have no authority, therefore, to register a voter residing without the limits of the city, although within the voting precinct as established by the county board. The object of registration is to prevent fraud in elections, not to prevent legal voters from casting their ballots. Experience has shown that election frauds, particularly |