In re Walsh. fraudulently uttering the same instrument. From the in formation itself it appears that the check described in the second count as having been fraudulently uttered by the petitioner was the same instrument as that described in the first count as having been forged by him. Both acts were parts of the same transaction, and constituted but one crime, and the court had no power to impose separate sentences upon each count. Wharton, Criminal Pl. & Pr. [9th ed.], sec. 251, states the rule thus: "Where a statute makes two or more distinct acts, connected with the same transaction, indictable, each one of which may be considered as representing a phase in the same offense, it has in many cases been ruled that they may be coupled in one count. Thus, setting up a gaming table, it has been said, may be an entire offense; keeping a gaming table, and inducing others to bet upon it, may also constitute a distinct offense; for either, unconnected with the other, an indictment will lie. Yet, when both are perpetrated by the same person at the same time, they constitute but one offense, for which one count is sufficient, and for which but one penalty can be inflicted." The above doctrine is abundantly sustained by the authorities. (Johnston v. Commonwealth, 85 Pa. St., 54; In re Snow, 120 U. S., 274; Woodford v. State, 1 0. St., 427; Hinkle v. Commonwealth, 4 Dana [Ky.], 513; Commonwealth v. Eaton, 15 Pick. [Mass.], 273; Devere v. State, 5 O. Ct. Court, 509; State v. Egglesht, 41 Ia., 574.) In the last case the supreme court of Iowa decided that where a person at the same time and as part of the same transaction passed four forged checks, he was guilty of but one offense, and that there could not be a separate conviction for uttering each instrument. (See State v. Hennesy, 23 O. St., 339; State v. Benham, 7 Conn., 414.) The precise question we are considering was passed upon in the case of Devere v. State, supra. That was a prosecution for forgery before the court of common pleas, the indictment containing two counts, one charging the defendant In re Walsh. with the forgery of a promissory note, and the other with the uttering of the same instrument. A verdict of guilty was rendered on both counts, and she was sentenced by the court to confinement in the penitentiary for five years under the first count, and a like term under the second count, the last term to commence at the expiration of the first. She prosecuted error to the circuit court, where it was held under a statute relating to forgery, almost like our own, that the falsely making and the fraudulent uttering of the same instrument by the same person constitute a single offense and subject the guilty party to but one penalty. Bentley, J., in delivering the opinion of the court, says: "Upon a careful consideration of the authorities our conclusion is, that it satisfactorily appears from the record that in falsely making and fraudulently uttering the instrument set out in the indictment, the accused committed but one offense; that the 'making and uttering' of the same instrument by the same party were, in contemplation of law, connected and consecutive parts of but one transaction, and became and were so merged as to render the accused guilty of the crime of forgery, but not of having committed a double crime under the statute. It results that this double sentence, imposed as before stated, was without authority of law, and the judgment pronouncing such sentence must be reversed, and the cause remanded to the court of common pleas for judgment and sentence upon the verdict of the jury as for a single offense pursuant to law." There can be no doubt of the soundness of the doctrine stated in the foregoing quotation. Where the different counts in an information charge the same offense, in case of a conviction on each count the rule is to render a single sentence upon all the counts for the one entire offense. It follows from these views that the imprisonment of the prisoner was unlawful, and that he should be discharged. PRISONER DISCHARGED. THE other judges concur. German Ins. Co. v. Eddy. GERMAN INSURANCE COMPANY OF FREEPORT ET AL. V. AMBROSE EDDY. FILED JUNE 30, 1893. No. 5014. 1. Attorneys' Fees: ALLOWANCE UNDER VALUED POLICY ACT. Upon the rendition of a judgment in favor of the plaintiff in an action on a tire insurance policy issued since the taking effect of the valued policy act of 1889, where the insured building has been wholly destroyed, the court rendering the judgment is. under said act, authorized to allow a reasonable attorney's fee in favor of the plaintiff and against the insurer, to be taxed as costs in the case. Such allowance can be made only upon proof as to 2. what constitutes a reasonable fee. ·: ——: REVIEW. The question of the allowance of attorney's fee in such a case cannot be raised in the first instance in the supreme court, but the plaintiff must first demand such fee in his petition and present the question to the trial court, and if disallowed, the decision may be reviewed in the appellate court. MOTION in supreme court by defendant in error to allow a reasonable attorney's fee, under the valued policy act of 1889. Motion overruled. Abbott, Selleck & Lane, for the motion. Adams & Scott, contra. NORVAL, J. The defendant in error, Ambrose Eddy, brought three actions in the district court, each on a fire insurance policy issued, respectively, by the German Fire Insurance Company of Peoria, the Queen Insurance Company, and the German Insurance Company of Freeport. The cases were tried as one, and judgment was rendered for the plaintiff. The companies prosecuted error to this court, and the judgment of the trial court was affirmed. It was held that the insured building was "wholly destroyed" within the meaning of that term as used in the valued policy law of 1889 German Ins. Co. v. Eddy. (36 Neb., 461). Subsequently, the defendant in error filed a motion in this court to allow a reasonable attorney fee for services of counsel rendered in both courts. Section 3 of the said act of 1889 (sec. 45, ch. 43, Comp. Stats., 1891) provides that "the court upon rendering judgment against an insurance company upon any such policy of insurance shall allow the plaintiff a reasonable sum as an attorney's fee, to be taxed as a part of the costs." Under the foregoing provision the trial court, upon the rendition of the judgment against the insurance companies upon the policies in suit, was authorized to allow a reasonable attorney's fee in favor of the plaintiff and against the companies, to be taxed and collected with other costs in the case. Proofs should have been adduced before the trial court as to what sum would constitute a reasonable fee. No proof was offered upon that question in the court below, so far as the record before us discloses. Whether the question of the allowance of a sum for attorney's fee in such cases should be submitted at the same time the cause is tried upon its merits, and to the same trier or triers of fact, it is unnecessary now to determine. Although the plaintiff in his petition prayed for the allowance of a reasonable attorney's fee, yet the record fails to show that the question was ever called to the attention of the district court. Had that been done, and a ruling adverse to the plaintiff below been made, then we could have reviewed the decision. But, as already stated, the matter of attorney's fee was not submitted to the court below, but the question is now raised for the first time, after the affirmance of the case on the merits. The jurisdiction of the supreme court to review, reverse, or correct the proceedings of a district court is appellate merely. The question of the allowance of attorney's fee cannot be raised in the first instance in this court. The motion therefore must be overruled. THE other judges concur. MOTION OVerruled. Houck v. Heinzman. DORSEY B. HOUCK, CONSTABLE, V. ELIZABETH HEINZ MAN. FILED JUNE 30, 1893. No. 4966. 1. Fraudulent Conveyances: MORTGAGES: EVIDENCE: QUESTION OF LAW. Where the facts relied upon to render a mortgage fraudulent as to creditors appear upon the face thereof or are undisputed, the question of fraud is one of law for the court. In all other cases it is a question of fact for the consideration of the jury. 2. : : : PERISHABLE PROPERTY. A mortgage will not be declared fraudulent as to creditors on the sole ground that among a large number of separate chattels included therein is a small amount of perishable property which it is impossible to preserve until the maturity of the mortgage debt, although such fact may be considered as evidence of fraud. The question of good faith in such case is one of fact and not of law. ERROR from the district court of Douglas county. Tried below before DAVIS, J. W. H. Thompson and Charles Offutt, for plaintiff in error. Donovan & Evans and Gannon & Donovan, contra. This was an action of replevin in the district court of Douglas county in which the defendant in error, plaintiff below, claimed possession of the property in dispute, towit, two horses, two wagons, and two sets of harness, through a mortgage from her son William Heinzman, while the defendant below claimed as constable by virtue of an order of attachment in an action in which the Omaha Packing Company was plaintiff, and the said William Heinzman was defendant. The first error assigned is the receiving in evidence of the mortgage through which the plaintiff below claimed, without sufficient evidence of its |