Error to district court, Dodge county; MARSHALL, Judge.

William F. Harris was indicted for assault with intent to commit rape. He was found guilty, and sentence of conviction was entered on the verdict. He brings error.

J. E. Frick and R. J. Stinson, for plaintiff in error. The Attorney General, for the State.

REESE, C. J. Plaintiff in error was indicted by the grand jury of Dodge county for the crime of assault with intent to commit rape upon Catherine Moaker, a female child. After a plea of not guilty, a trial was had, which resulted in a verdict of guilty as charged in the indictment. This verdict was returned on the 6th day of February, 1888. A motion for a new trial was filed on the 9th day of the same month, and on the same day an amended or substituted motion was filed, which we here copy: "Comes now the defendant in the above-entitled cause, and moves the court for a new trial in said action, and to set aside the verdict heretofore returned in said cause, and for cause thereof shows: (1) That the verdict is not sustained by sufficient evidence. (2) That the verdict is contrary to the evidence. (3) That the verdict is contrary to law. (4) Irregularity in the proceedings of the court, and abuse of discretion by the court, by which the defendant was prevented from having a fair and impartial trial, as appears from the affidavit of William F. Harris and others attached hereto, and made a part hereof. (5) Misconduct of the jury in deliberating upon and the manner of agreeing upon a verdict, as appears from the affidavits of the several jurors hereto attached and made a part hereof." On the 11th day of February the motion was overruled, and judgment and sentence of conviction entered on the verdict. Upon the hearing of the motion for a new trial no evidence was offered in support of the fifth assignment in the motion. On the 14th day of February plaintiff gave notice to the prosecuting attorney that on the 18th day of the same month, and during the same term, he would apply to the district court for an order setting aside the judgment, and granting a new trial, on affidavits to be on file on the 16th. On the day set, to-wit, the 18th, the motion was called for hearing, upon the affidavits of jurors and others impeaching the verdict. The prosecutor then moved to strike from the files the affidavits of the jurors. Affidavits of other jurors having been filed by the state, plaintiff in error objected to the reading of certain parts thereof. He also moved for leave to file affidavits in rebuttal, to which the prosecuting attorney objected. These motions and objections were all submitted to the court, which, upon consideration, overruled all except the motion of plaintiff in error for leave to file affidavits in rebuttal, which was sustained, and to the adverse rulings of the court both plaintiff in error and the prosecution excepted. Plaintiff in error brings the cause to this court by proceedings in error, assigning for such error substantially the following grounds: First, the verdict is not sustained by sufficient evidence; second, the verdict is contrary to law; third, the court erred in refusing to set aside the verdict of the jury, and grant a new trial, upon the ground of the misconduct of the jury; fourth, the court erred in overruling plaintiff's objection to the consideration of the affidavits of jurors in support of the verdict; fifth, the court erred in not vacating the judgment, and granting a new trial.

It is insisted by the defendant in error that the court had no power or authority to vacate its judgment, and hence there could be no error in refusing to do so; and in support of this Ex parte Holmes, 21 Neb. 324, 32 N. W. Rep. 69, is cited. That case was where the motion for a new trial was not filed until the next term of court after the one at which the judgment had been rendered, and some six months after Holmes had been taken to the penitentiary in execution of the sentence. In this case, all the proceedings were had during the term at which plaintiff was tried. The authority of courts of

record over their own judgments, during the term at which they were rendered, has generally been considered ample for the purpose of correcting errors, or of preventing a failure of justice in any other respect. Com. v. Weymouth, 2 Allen, 144; King v. Price, 6 East, 323; Burnside v. Ennis, 43 Ind. 411; Lee v. State, 32 Ohio St. 113; U. S. v. Harmison, 3 Sawy. 556. There is nothing in the statute of this state, governing motions for new trials, which requires a decision thereon at or within any particular time. Had judgment not been rendered prior to the 18th day of February, we know no rule which would have prevented plaintiff in error from presenting evidence in support of his motion at any time before the submission thereof, even though the three days in which the motion might be filed had expired. If this is true, we can see no reason why the court might not examine the evidence, and vacate its judgment, if it appeared that the accused had not had a fair trial. It appears that the motion and affidavits were heard and overruled, and the ruling of the court thereon is the error assigned.

It was shown by the affidavits of F. F. Knew and F. C. Fymm, who were not jurors, that Mr. Knew was the police judge of the city of Fremont, and had his office in a room adjoining the jury-room, the two being connected by a door; that one of the jurors, on the second day of their deliberation, and on the date on which the verdict was rendered, returned to Judge Knew's office the Compiled Statutes of 1885, and that another juror returned to said office a copy of Webster's Unabridged Dictionary, both of which had been in the jury-room while the jury were deliberating, and both of which belonged to Judge Knew, and had been taken from his office; that, prior to the return of the books referred to, the witnesses had heard loud reading in the room where the jury were. This is, in part, supported by the affidavit of the bailiff who had charge of the jury; and who, when the retirement of any of them was necessary, conducted them out and in through the office referred to. Stated in general terms, it is shown by affidavits of five of the jurors that, during the deliberation of the jury, one of their number procured a copy of the Compiled Statutes referred to, and read to the whole jury section 12 of the Criminal Code, in which it is declared that "if any male person of the age of eighteen years or upwards shall carnally know or abuse any female child under the age of fifteen years, with her consent, every such person so offending shall be deemed guilty of rape," etc.; that he also turned to that portion of the statutes referring to new trials in criminal cases, reading the same, and arguing therefrom that, if the part of said section read by him did not apply to the case, a new trial would be granted by the court, and that he persistently and repeatedly read the section of the statute referred to. It was conceded by the other members of the jury, who made affidavits on the part of the state, that the books referred to were used and the sections read; but it was claimed by some that the reading did not affect their verdict, and that, although they were some two days deliberating, the contention in the jury-room was not upon the matters read from the books,-the dictionary being used only for the purpose of ascertaining the meaning of the word "intent." It was shown by affidavits that neither plaintiff in error nor his attorneys had any knowledge of the facts above detailed at the time the motion for a new trial was argued and submitted. It must be conceded that if the question was properly presented to the trial court, and upon competent evidence, the misconduct of the jury was clearly sufficient to vitiate the verdict. We know of no rule of law that would permit trial jurors to procure statutes or other law-books, and base their judgment upon such provisions as they might discover, rather than upon the instruction of the court. It must also be borne in mind that in this case the charge was for an assault upon a child which was shown to be less than 12 years of age, and therefore the section referred to was the more liable to mislead the jury; the prosecution being under another provision of the criminal law.

It is the well-established rule of law, as held in all courts, so far as we know, (unless the rule be changed by statute,) that affidavits of jurors will not be received for the purpose of impeaching or avoiding their verdict in respect to a matter which essentially inheres in the verdict itself, as that the juror was mistaken in a computation, or misunderstood a witness, or did not comprehend the instructions of the court. The reason for the rule is that, the matters referred to being alone within the breast of each juror, it would be impossible to rebut any statements which might be made by the juror. See cases cited in Cowles v. Railroad Co., 32 lowa, 515, and in Perry v. Bailey, 12 Kan. 539. I think it may further be said that the rule adopted by the greater number of courts, both in this country and in England, is that affidavits of jurors will not be received in any case for the purpose of impeaching or avoiding their verdict; but to this there are a number of exceptions, and, to our mind, the opposite rule is much more reasonable and promotive of justice. This is confined to such overt acts as may be seen or heard, and about which all the jurors present may testify with equal knowledge. Thus, where a verdict for damages is ascertained by aggregation and division, without subsequent ratification; or where it is made to depend upon chance; or where a part of the jury become so intoxicated as to destroy their ability to deliberate and exercise reason and judgment; or where witnesses are surreptitiously called before them, and permitted to detail the principal facts; or where it appears that one of the jurors was familiar with the facts of the case, and by reason of his suppression of the fact of such acquaintance he procures himself to be accepted as a juror, and in the jury-room asserts such knowledge, and assumes the role of both witness and advocate, and procures a verdict; and the like,-all of which, being matters of sight and hearing, are susceptible of proof or contradiction by the testimony of others. In such cases we can see no danger in permitting proof of the facts by the affidavits of the jurors themselves. As said by Mr. Justice BREWER in Perry v. Bailey, supra: "If the jury have been guilty of no misconduct, no harm has been done by permitting their testimony to be received. If the jury have been guilty of misconduct, but such misconduct was not of such a nature as to prejudice the rights of the parties, the modern rule is to let the verdict stand, and simply punish the offending juror. But if such misconduct has wrought prejudice, not only should the juror be punished, but the verdict should also be set aside." This doctrine is fully sustained by the supreme court of Kansas in Johnson v. Husband, 22 Kan. 277; and by the supreme court of Iowa in Wright v. Telegraph Co., 20 Iowa, 195, where the cases are reviewed with considerable care by Mr. Justice COLE. See, also, Cowles v. Railroad Co., 32 Iowa, 515; Grinnell v. Phillips, 1 Mass. 529; Kruidenier v. Shields, 30 N. W. Rep. 681; Crawford v. State, 2 Yerg. 60; Elledge v. Todd, 1 Humph. 43; Norris v. State, 3 Humph. 333; U. S. v. Reid, 12 How. 361. It appears from the record that the district court entered upon an examination of the question of the misconduct of the jury, but doubtless thought it best to follow the more ancient and popular rule, that the verdict could not be impeached by the affidavits of the jurors who composed the panel. There is no doubt but that the rule adopted by the district court is supported by the greater number of authorities; but, as we have said, the arguments in favor of the rule here adopted are, it seems to us, much more cogent and reasonable. The decision of the district court is therefore reversed, the judgment vacated, and the cause remanded for further proceedings according to law. The other judges concur.

SLOMAN v. BODWELL et ux.

(Supreme Court of Nebraska. November 14, 1888.)

FACTORS AND BROKERS-REAL-ESTATE AGENTS COMMISSIONS.

Upon the facts proved, held that the plaintiff, a real-estate agent, had failed to procure a purchaser for the defendant's property, and therefore was not entitled to a commission.1

(Syllabus by the Court.)

Error to district court, Douglas county; HOPEWELL, Judge.

Action by Samuel A. Sloman against F. P. Bod well and wife for real-estate agent's commissions. Judgment for defendants, and plaintiff brings error. J. P. Breen, for plaintiff in error. Parke Godwin, för defendants in error. MAXWELL, J. In the year 1886 the plaintiff was a real-estate agent in the city of Omaha, and the defendants, who are husband and wife, were at that time possessed of certain real estate in that city, which they desired to sell. The plaintiff addressed a letter to them, making inquiries in regard to the defendants' property, and the price of the same. In answer to this letter Mr. F. P. Bodwell, the husband, wrote to the plaintiff: "I offer for sale residence and two lots, S. E. cor. 11th and Martha Sts. Has good barn, coal-house, and pump and rainwater in the kitchen of house, which is finely finished inside and out. Lots have 132 ft. frontage on 11th and 148 ft. on Martha St. Fine large shade-trees, and all in good shape. For the whole, $6,500; and can take $2,500 cash, and 3 years or more time for bal.," etc. The plaintiff, on receiving the defendants' proposition, wrote to him that he would not purchase the property himself; but, if he so desired, he would place the property on his books, and endeavor to sell it for him. To this proposition the defendant answered, in substance, that the property was already in the hands of a real-estate agent for sale. He could not give him the exclusive right to sell the same, but, as the agent was making but little effort to sell the property, therefore, if the plaintiff could find a purchaser, he might do so. The plaintiff seems to have been active in the matter, and a few days afterwards took a Mr. Morgan to see the premises. Both plaintiff and Mr. Morgan examined the premises twice, and afterwards an agreement was entered into between Morgan and the defendants for the sale of the "west half of lot three, block one, S. E. Rodger's addition, (132x148;) price, $6,500. Terms, $2,500 cash; balance on or before 1, 2, 3, or 4 years, at 8%." There was also a provision for Morgan to pay $100 cash in hand, and that the defendants should finish certain rooms. At a time agreed upon, Mr. Morgan, the plaintiff and defendants, went to the office of Byron Reed to execute a deed and mortgage and notes for the unpaid purchase money. While there, Mr. Morgan claims to have discovered for the first time that the lot was not 148 feet in length, but only 1423 feet. The exact measurement of the half lot appears to be 132x144 feet. Mr. Morgan refused to take the property unless a deduction of $500 was made in the price. This the defendants refused to make, and, upon Morgan refusing to complete the contract, they returned the $100, paid by him to them when the contract was entered into. The also paid the plaintiff the cost of the abstract. The plaintiff claims that the sale to Morgan failed solely because the defendants had misrepresented the size of the half lot, and therefore he sues for his commission. On the trial of the cause the jury found for the defendants, and judgment was entered on the verdict dismissing the action.

The facts, as shown by the evidence, are substantially as stated above; there being but little conflict in the testimony, except upon one point, viz., the

1As to when a real-estate broker will be considered to have earned his commissions, see Hannan v. Moran, (Mich.) 38 N. W. Rep. 909, and note; Putnam v. How, (Minn.) ante, 258, and note.

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boundaries of the lot. Mrs. E. Bodwell, one of the defendants, testifies that Morgan and the plaintiff came to her house, before the sale, to examine the property, and that she "showed them over the place. I knew the lines of the lot, and knew it was W. of lot 3, block 1, of S. E. Rodger's addition. I showed them all over the lot, and how far it extended, in every direction. I showed them how far the lot went back, and where the stakes were, so that they could see the lines, as there was no fence between our place and Mr. Black's." The plaintiff and Morgan admit that Mrs. Bodwell showed the premises to them, but they deny that she pointed out the lines to them. This matter, therefore, became a question for a jury. Mr. Morgan seems to have been very particular in all matters relating to the contract, and a very reasonable inference to be drawn from his conduct in other respects is that he well knew the exact measurement of the lot before he purchased the same, and the jury would be justified in so finding. Morgan, therefore, seems to have declined to complete his purchase without any valid excuse, and there was a failure on the part of the plaintiff to procure a purchaser for the property in question. The judgment, therefore, is clearly right, and is affirmed. The other judges concur

HART v. BARNES.

(Supreme Court of Nebraska. November 14, 1888.)

1. CONTRACT-IMPLIED.

When a person undertakes any employment, trust, or duty, he thereby, in contemplation of law, impliedly contracts with those who employed him to perform that which he has undertaken with integrity, diligence, and skill; and if he fails to do so it is a breach of contract.

2. ATTACHMENT-WHEN LIES-ACTION EX CONTRACTU-BAILMENT-BREACH OF DUTY. In cases of bailment, at common law, there has always been a choice of forms of action, between actions on the case and assumpsit. Case lies for breach of duty, and assumpsit for breach of promise. A duty arises out of a promise, and the law implies a promise out of most duties. The Code, while abolishing the forms of actions, has preserved to a suitor all the rights and remedies known to the law. Therefore, if a promise is implied, either from a breach of duty or from the undertaking of the defendant, an attachment in a proper case will lie.

3. SAME-AFFIDAVIT-SUFFICIENCY.

The affidavit for an attachment must show "the nature of the plaintiff's claim." If the claim appears in the affidavit to be one for which an attachment may issue, but the statement is not as full as may be desired, reference may be had to the petition.

(Syllabus by the Court.)

Error to district court, Merrick county; POST, Judge.

Action for the recovery of money by Levi C. Hart against Nelson Barnes. From an order discharging an attachment, plaintiff brings error.

John Patterson, for plaintiff in error. A. Ewing and J. W. Sparks, for defendant in error.

MAXWELL, J. The plaintiff brought an action against the defendant in the district court of Merrick county to recover the sum of $9,221.33, and made and filed an affidavit for an attachment against the property of said defendant. An attachment was thereupon duly issued, and levied on the defendant's property. The attorney for the defendant thereupon filed a motion to dissolve the attachment, for the following reasons: "(1) That the cause of action is not one in which the law allows an attachment; (2) because the facts stated in the affidavit are not sufficient to justify the issuing of the same; (3) because the statements of facts in said affidavit are untrue." This motion, after due notice, was submitted to one of the judges at Columbus, and the attachment discharged. In sustaining the motion, the judge filed a written opinion, which is now before us, in which he sums up the reasons for discharging the attachment as follows: "My conclusion is, therefore, that the attach