Buffalo County Bank v. Hanson. tion. Hansen thereupon brought this action. The defendant below (plaintiff in error) answered that Hansen was indebted to the bank for rent, and that it had collected said sum and applied the same upon said debt. It also pleads the same as a set-off. On the trial of the cause the jury returned a verdict in favor of the defendant in error. Two questions are presented by the record, viz.: First, Was the lease from Gamble to the defendant in error surrendered to the bank at or about the time Hansen sold his stock of goods? and second, Could the bank apply the proceeds of a note left with it as collateral upon a specific matter and apply it upon a distinct and independent claim not connected with the business of the bank? In Wheeler v. Walden, 17 Neb., 122, it was held that a surrender of a lease by operation of law may be effected by any agreement between the parties that the term shall be terminated which is unequivocally acted upon by both. It has been held that an actual and continued change of possession by the mutual consent of the parties is a surrender by operation of law, whether the possession is delivered to the landlord himself, or to another for him. (Hall v. Burgess, 8 D. & R. [Eng], 67; Reeve v. Bird, 1 C. M. & R. [Eng.], 31; 4 Wait's Act. & Def., 212.) So the acceptance of possession by the landlord and accepting an under tenant or an assignee as his tenant, followed by an actual possession by the latter, will operate as a surrender. (Clemmens v. Bloomfield, 19 Mo., 118; Shepard v. Spaulding, 4 Metc. [Mass.], 416; Schieffelin v. Carpenter, 15 Wend. [N. Y.], 400; Grimman v. Legge, 8 Barn. & Cress. [Eng], 324; Witman v. Wotry, 13 Wis., 638; 4 Wait's Act. & Def., 213.) The case of Schieffelin v. Carpenter contains an elaborate review of the authorities up to the year 1836, and clearly establishes the rule that a written lease may be surrendered by any agreement between the parties which both have acted upon. Buffalo County Bank v. Hanson. A bank has a general lien on all moneys, funds, and paper securities of a depositor in its possession for the amount of the general balance. (Ford v. Thornton, 3 Leigh [Va.], 695; McDowell v. Bank of Wilmington, 1 Harr [Del.], 369; Beckwith v. Union Bank, 4 Sandf. [N. Y.], 604; Commercial Bank v. Hughes, 17 Wend. [N. Y.], 94; Marsh v. Oneida Bank, 34 Barb. [N. Y.], 298; State Bank v. Armstrong, 4 Dev. [N. Car.], 519; Bank of U. S. v. Macalester, 9 Pa. St., 475; National Bank v. Insurance Co., 104 U. S., 55; Scott v. Franklin, 15 East, 428; Bank of Metropolis v. New England Bank, 1 How. [U. S.], 234; 2 Am. & Eng. Encyc. of Law, 97.) In some of the states this rule does not extend to deposits of money. (Fourth Natl. Bank v. City Natl. Bank, 68 Ill., 398; Gordon v. Müchler, 14 Reporter [La.], 520; Morgan v. Lathrop, 12 La. Aun., 257; 2 Am. & Eng. Encyc. of Law, 98.) In the case at bar the bank claimed the right to apply money collected by it upon securities of the defendant in error to the payment of the rent for the room in question-a matter entirely disconnected with banking. It is very clear that had it converted the securities to its own use it would have been liable for the same, and it could not, without the consent of the owner, apply the proceeds to the payment of the claim. It is apparent that there is no error in the record and the judgment is THE other judges concur. AFFIRMED. Nichols v. Miller. NICHOLS, SHEPARD & Co. v. J. L. MILLER ET AL. [FILED APRIL 13, 1892.] Sale: WARRANTY: ACTION ON NOTE. In an action upon certain notes given for a threshing machine and engine, the defendant admitted the execution of the notes but pleaded a breach of • warranty and damages; that the machine had been taken by the plaintiff under a chattel mortgage and sold. The testimony tended to show that the machine was defective and that the plaintiff had failed to make it work properly after notice of the defects, and that the purchaser had acted in good faith and had paid $156 on the machine. Held, That a verdict for $200 in favor of the purchaser would not be set aside. ERROR to the district court for York county. Tried below before NORVAL, J. George B. France, for plaintiff in error. Sedgwick & Power, contra. MAXWELL, CH. J. This action was brought in the district court of York County by the plaintiff against the defendant to recover upon four promissory notes each for the sum of $175. The notes were dated July 29, 1885. They were given for a threshing machine and engine, the whole price of which was $1,050, upon which the defendant, on the 2d day of September, 1886, paid the sum of $156. The defendants in their answer admit the making and delivery of the notes, but allege a breach of warranty and claim damages in the sum of $550. On the trial of the cause the jury returned a verdict for $200 in favor of the defendants, upon which judgment was rendered. The testimony shows that the separator had been used before the defendants obtained it, but had been repainted; that it had 34 460 62 493n Goodrich v. Cushman. been exposed to the weather and greatly injured. It also appears that it did not do good work; that the engine was not sufficient to perform the service required of it. It also appears that the machinery was mortgaged to the company and afterwards taken by it and sold under the mortgage. So far as we can see the purchasers acted in good faith, and the defects complained of, or many of them, were actual defects in the machinery which the company failed to remedy. It would serve no good purpose to review the testimony at length. No error appears in the record and the judgment is POST, J., concurs. AFFIRMED. NORVAL, J., having tried the case in the district court, did not offer an opinion. IDA E. GOODRICH, APPELLEE, V. A. J. CUSHMAN ET [FILED APRIL 13, 1892.] 1. Duress: CONVEYANCES: HUSBAND AND WIFE. In an action by a wife against her husband and his sister to set aside a couveyance of real estate of the wife alleged to have been conveyed under duress, there was testimony tending to show such duress on the part of the husband, and that the grantee was not a bona fide purchaser. Held, That a decree that the purchaser pay the plaintiff the sum of $500 and assume a certain mortgage on the property or be barred, was supported by the evidence. There was no error in permitting the 2. 3, : plaintiff to dismiss the case as to the husband. : The testimony shows that the plaintiff and Edward C. Goodrich were husband and wife and the decree so finding is in conformity to the proof. Goodrich v. Cushman. APPEAL from the district court for Hall county. Heard below before GASLIN, J. Thompson Bros., for appellant, cited: Fremont Ferry & Bridge Co. v. Dodge Co., 6 Neb., 25; McMurtry v. Brown, Id., 377; Mundy v. Whittemore, 15 Id., 651; Stark, Ev., 711; Wharton, Crim. Ev., sec. 421; Hamilton v. Smith, 10 N. W. Rep. [Ia.], 276; Harmon v. Harmon, 61 Me., 227; Bagley v. Smith, 10 N. Y., 499; French v. Shoemaker, 14 Wall. [U. S.], 322; Dennis v. Crittenden, 42 N. Y., 546; Miller v. Miller, 68 Pa. St., 486; Grant v. Cropsey, 8 Neb., 208; Greenleaf, Ev., sec. 339. R. C. Glanville, contra, cited: Gibson v. Gibson, 24 Neb., 434; Hutchins v. Kimmell, 31 Mich., 126. MAXWELL, CH. J. This is an action to remove a cloud from the plaintiff's title to certain real estate. A decree was rendered in the court below that the defendant, A. J. Cushman, pay to the plaintiff the sum of $500 and assume a certain mortgage for the sum of $400, and that the plaintiff recover costs. The plaintiff claims that Edward C. Goodrich is her husband, and while the action was pending she dismissed the action as to him. It is claimed that in this dismissal the court erred, but no sufficient reason has been stated to show that the ruling was erroneous, and we see no error in the ruling. It is admitted that A. J. Cushman is the sister of Edward C. Goodrich. This is important because there seems to be some difficulty between Goodrich and his wife, the marriage even being denied. The testimony, however, tends to show the cohabitation of the parties and a present agreement of marriage. In Gibson v. Gibson, 24 Neb., 434, it is said: "It is |