Volume 26 — Nebraska Reports

<p>Appeal from the district court of Douglas county. Heard below by Wakeley, J.</p> <p>cited: McKesson v. Hawley, 22 Neb. 696; Pettit v. Black, 13 Neb. 153; Whitehorn v, Cranz, 20 Neb. 398; Wade, Notice, secs. 17 — 21; Perry, Trusts, secs. 18,19; Willard’s Eq. Jur., sec. 186.</p> <p>cited: Perry on Trusts, sec. 830; Pomeroy’s Equity, sec. 754; JDeBussehe v. Alt, L. R. 8 Ch. D. 286, 314.</p> <p>cited: Perry on Trusts, 3d. Ed., secs. 141, 228, 230, 850, 869.</p>

<p>Appeal from the district court of Lancaster county. Heard below before Chapman, J.</p> <p>cited: Bacon v. Cobb, 45 111. 47; Field’s Briefs, vol. 5, sec. 407; 1 Pom. Eq. Jur., sec. 455; Crigg v. Landis, 4 C. E. Green, 350; Grey v. Tubbs, 43 Cal. 362; Fry on Specific Performance, sec. 711, and on page 415, note; Rogers v. Saunders, 16 Me. 99; Waterman, Specific Per. Cont. 596, 597, sec. 436; Mott v: Riehtmyer, 57 N. Y. 50; Singer Co. v. Forsythe, 108 Ind. 334; 9 N. E. Rep. 372; Carr, Adm’r,v. ILays, 25 Cent. L. I. 32; Fry, Specific Per. 406, note 7.</p> <p>cited: North v. Kizer et at., 72 111. 172; Bishop v. Busse et al., 69 111. 403; Wheeler v. Knaggs, 8 Ohio, 173; Robinson v. Cheney, 17 Neb. 673; Postv. Garroio, 18 Neb. 683; JDiehenson v. State, 20 Neb. 81.</p>

<p>, Error to the district court for Holt county. Tried below before Tiffany, J.</p>

<p>Error to the district court for Cass county. Tried below before Chapman, J.</p> <p>cited: Greenleaf on evidence, 275; Hamilton v. Thrall, 7 Neb. 210; Brondberg v.Babbott, 14 Id. 517; O’Leary v. Lskey, 12 Id. 136; Baier v. Humpall, 16 Id. 127; Rothe v. Rothe, 31 Wis. 572; Curtis & Co. v. Cutler, 7 Neb. 317; Caldioell v. Dickson, 26 Mo. 61; Thomas v. Thomas, 15 B. Mon. (Ky.) 185; Shepard, v. White, 11 Tex. 356; Woodman v. Chesley, 39 Me. 50.</p> <p>cited: Wyche v. Green, 11 Ga. 159; Kerr on Fraud and Mistake, 417; Coquillard v. Hovey, 23 Neb. 622. .</p>

Appeal .from the district court of Dixon county. Heard below before Powers, J. cited: IJiston v. Hood, 3 So. Rep. 747; Abell v. Cross, 17 la. 174, and cases; Frazier v. Miles, 10 Neb. 113; Colton v. Rupert, 27 N. W. Rep. 520; Wade on the Law of Notice, sees. 1334,1335; Patrióle v. Leach, 12 Fed.

<p>Error to the district court for Red Willow county. Tried below before Gaslin, J.</p>

<p>Error to the district court for Lancaster county. Tried below before Chapman, J.</p> <p>cited: Herman on Chattel Mortgages, secs. 81, 178; Cool v. Roche et al., 20 Neb. 550; Jones on Chattel Mortgages, second edition, sec. 69; Boone on Mortgages, sec. 267.</p> <p>cited: Jones on Chattel Mortgages, sec. 481; Kreuzer v. Cooney, 45 Md. 582; Hart v. Ten Eych, 2 Johns. Ch. 62, 108; Robinson v. Holt, 39 N. H. 557; Hamilton v. Rogers, 8 Md. 301.</p>

<p>1. Estoppel: Principal and Agent: Evidence. Where the whole tenor and purport of the testimony of three witnesses on the part of the defendant was to the effect and tended to prove that at the commencement and during the entire progress of the negotiations for the sale of the land, involved in the suit of P. L. W., who held the same hy tax title, to the defendant, the plaintiff who afterward bought in the general title thereof and hy this suit seeks to oust the defendant from the same, which he holds by deed from P. L. W., given pursuant to a salé made upon such negotiation, acted for and in concert with P. L. W., either as his agent or as joint owner with him of said land, and made certain statements to defendant as to the title of P. L. W. to the land, held, no error on the part of the trial court to instruct the jury in the following language: “Sixth. If you believe from the evidence that the plaintiff as the agent of his father (the said P. L. W.) or part owner of the premises in question, made certain statements, whether true or false, to the defendant, and whereby he induced him to purchase the premises in good faith and for a valuable consideration, and that the said defendant acted upon them, believing them to be true, the plaintiff is now precluded from asserting the contrary, and you must find for the defendant; for it is a rule of law that where one by his words or conduct willfully causes another to believe in a certain state of things and induces him to act on that belief so as to alter his own previous condition, the former is concluded from averring against the latter a different state of things.”</p> <p>2. Evidence: Hearsay Evidence. Where a witness was called npon to testify as to words spoken to him in a language which he did not understand, and which were interpreted to him into his own language by an interpreter known to him, and in whom he confided, (in the presence of the speaker,) such testimony, held, unobjectionable as hearsay evidence. See Fabrigas v. Mostyn, 20 S. T. 122,123; S. C., 2 Wm. Bl. 929.</p> <p>3. Error without Prejudice. One of the principal issues presented was that arising upon the allegation of the defendant in his answer that the plaintiff, as the agent of his father, P. L. W., in order to induce defendant to purchase said land, assured him that at the expiration of four years from the date of the conveyance thereof, he, the defendant, would have an absolute title in fee simple; and there being evidence tending to prove that the plaintiff made such an assurance to the defendant before and at the time of the conveyance of the land by P. L. W. to the defendant, also that before and at the time of the making of such assurance the plaintiff was the general legal adviser of the defendant, held, that an instruction which, to the substance and general purport of the one quoted in the first clause of this syllabus, added words to the effect that if the jury should find that the defendant, in the purchase of said land, acted upon the said statements and representations of the plaintiff, “ believing what plaintiff said and represented to him, the defendant, was true, and relied upon and acted upon said representations of plaintiff as their legal adviser, then you are instructed that the plaintiff cannot recover in this action,” if error, which is not decided, was error without prejudice to the plaintiff.</p> <p>4. Evidence: Tlx Deed: Tax Receipts. Where the defendant prayed as alternative relief that he might be subrogated to the rights of his grantor, who held the land in controversy under a tax title, to a return of the money paid by him for such tax title, as well as for a return of taxes subsequently paid by defendant on said land in case of the failure of said tax title, held, that the admission of the informal and void tax deed under which defendant’s grantor claimed to hold said land, and of the receipts for subsequent taxes paid by defendant on the land, for the purpose of establishing the amount of an alternative recovery therefor, was no error.</p>

<p>Error to the district court for Douglas county. Tried below before Hopewell, J.</p> <p>cited: Forsyth v. Hooper, 11 Allen, 422; Deforest v. Wright, 2 Mich. 368; DeOraff v. N. Y. C. & H R. R. R. Co., 76 N. Y. 131; Atchison, Topeka & Santa Fé R. R. Co. v. Wagner, 7 Pacific Reporter, 204; City of Lincoln v. Walker, 18 Neb. 245; Swords v. Edgar, 59 N. Y. 35; Staple v. Spring, 10 Mass. 72; House v. Metcalf, 27 Conn. 631; Nugent v. Boston, 12 At. Rep. 797.</p> <p>cited: Cooley on Torts, pp. 531 and 532; Shearman and Redfield on Negligence, sec. 503; Bears v. Ambler, 9 Pa. St. 194; Leonard v. Storer, 115 Mass. 86; Wabash R. R. Co. v. McDaniels, 107 U. S. 454; Hough v. R. R. Co., 100 Id. 213; Burke v. Witherbee, 98 N. Y. 582; Cooley on Torts, p. 727.</p>

<p>Rehearing of case reported in 22 Neb. 183.</p>

<p>1. Special Election for Voting Bonds: Liability of County for Publishing Notice. Where a county board calls a special election, in a township of the county, under the provisions of sections 14-17 of chapter 45 of the Compiled Statutes of 1887, for the purpose of voting upon .a proposition for the issuance of the bonds of such township in aid of the construction of a railroad, and gives notice of the election in a newspaper published in the county, it was held, that the county was liable for the expenses of publishing the notice for the special election.</p> <p>2. -: -. In giving the notice and causing the same to be published, issuing the bonds, and collecting the tax, the county board act as the officers of, and on behalf of the county, and not as the agents of the township.</p>

<p>Error to the district court for Clay county. Tried below before Morris, J.</p>

<p>Appeal from the district court of Frontier county. Heard below before Cochran, J.</p>

<p>Error to the district court for Adams county. Tried below before Gaslin, J.</p>

<p>Practice: Affirmance of Judgment in Supreme Court. Where a judgment of the district court has been simply affirmed in the supreme court, the clerk of the district court upon receiving a mandate to that effect may issue an execution on the original judgment. On a simple affirmance no action of the trial court is necessary before issuing an execution.</p>

<p>Original application for mandamus.</p>

<p>Contract: Statute op Frauds: Consideration. A petition which states that the defendant was a contractor for the grading of a certain railway; that he had certain employes and subcontractors under him engaged in the grading who furnished their own teams; that he verbally employed the plaintiff to care for and furnish “ all medical treatment and medical and surgical service and medicine which the plaintiff might render to • said horses and mules” of the said parties; that in pursuance of said contract the plaintiff rendered certain services and furnished certain medicine for the horses and mules of the said parties which amounted to |49.50, an itemized copy of the account being set out in the petition, and it being claimed that there is due from the defendants to the plaintiff the sum above specified; Held: 1. That if the allegations of the petition are true, the promise was direct to pay for the services, if rendered. 2. If the services were rendered in pursuance of the promise, there was sufficient consideration.</p>

Tried below before Post, J. cited: Balsley v. St. L. A. & T. H. JR,. JR. Co., 119 111. 68; see collection of' cases, Am. and Eng. Encyc. of Law, Yol. 2, p. 756, title, “Carriers of Passengers,” paragraph 25, sub-title, “Lessors and Lessees;” G. W. Railway v. Blake, 7 H. & N. 987; Quimby v. Vanderbilt, 17 N. Y. -306; W. St. L. & P. Ry. v. Peyton, 106 111. 534; JL. &.

<p>1. Homestead: Mortgage. A mortgage on a tract of land, including a homestead, executed by a married man without the concurrence' and signature of the wife, is invalid for the purpose of impairing, disencumbering, or in any manner effecting such homestead or its appurtenances. (See Swift v. Dewey, 20 Neb. 107.)</p> <p>2. -: -. If the husband and wife own a tract of land, a part of which is claimed as a homestead, and both execute a mortgage on the whole tract to secure a debt, and the husband afterward executes a mortgage upon the part not covered by the homestead, to secure his debt, and judgments are rendered or filed in the district court against the husband, and the first mortgagee forecloses, making the other mortgagees and judgment creditors parties, the second mortgagees and judgment creditors cannot insist that the homestead be sold; and the decree will direct the part not covered by the homestead to be first sold, and if the proceeds satisfy the first mortgage, that the homestead be reserved from sale. The second mortgagees and judgment creditors must rely on the surplus, if any, arising from the sale of the' part not exempt from execution as a homestead.</p> <p>3. --: -: Foreclosure: Takes. Where the plaint^, who is the assignee of the first mortgagee, purchased the mortgaged property at tax sale, prior to the transfer of the note and mortgage to him, and the mortgage so transferred contains a provision that in case of default on the part of the mortgagor to pay the taxes, the mortgagee may pay them and be entitled to legal interest thereon at the same rate as is provided for on the original debt, the plaintiff, upon the foreclosure of the mortgage and tax lien, will be entitled to interest at twenty per cent upon the amount so paid, prior to the transfer of the note and mortgage to him, under the provisions of section 119 of the revenue law; but upon taxes paid subsequent to the transfer of the mortgage, he will be entitled to interest at the legal rate therein stipulated, no effort being made to obtain title through the tax-sale proceedings.</p>

<p>Error to the district court for Lancaster county. Tried below before Hayward, J.</p> <p>cited: Harris v. Kennedy, 4 N. W. R. 651; Wiley v. Shars, 21 Neb. 712; Jones on Chattel Mortgages, secs. 644, 645, 662.</p> <p>cited: Jones on Mortgages, 3d Ed., vol. 2, sec. 971; Shaver v. Williams, 87 111. 469; Banta v. Qarmo, 1 Sanford Ch. (N. Y.) 383; Anglade v. St. Avid, 67 Mo. 434.</p>

<p>Error, to tbe district court for Harlan county. Tried below before Gaslin, J.</p>

<p>1. Railroads: Fencing: Construction of Statute. Section 1 of the act of 1867 requires every railroad company in the state, within six months after its line of railroad, or any part thereof, is open, to erect and thereafter maintain fences on the sides of said railway, or the part thereof open for use, suitably and amply sufficient to prevent cattle, Lorses, sbeep, and bogs, from getting on tbe track, except at the crossings of public roads and highways, and within the limits of towns, cities, and villages, etc.</p> <p>3. ;-: —:-: -. The provisions of section 18, chapter 2, Compiled Statutes, defining a lawful fence, apply alone to the inclosing of lands, and do not apply to the fencing of a railway. That matter is governed by section 1, article 1, chapter 72, Compiled Statutes.</p>

<p>Error to the district court for Richardson county. Tried below before Broady, J.</p>

<p>Statute of Frauds: Agreement. S. S. H. held a judgment for $653 and costs, against Dr. A. N. L., who owned a stock of drugs and notions worth from $1,500 to $3,000, and owed debts amounting to about $1,500, besides the said judgment of S. S. H., for one of which debts C. C. E. was surety. S. S. H. resided at H., in R. county; A. N. L. at S., in R. county, and C. C. E. at . L., in L. county. A. N. L. was afflicted with a fatal disease, and known to be near his end, when C. G. E. went to S., visited A. N. L., talked with him about his condition and affairs, examined into his business, stock, books, etc. Coming away, he left a proposition with one J. C. Lincoln, to be presented to A. N. L., to the effect that he, C. C. E., would pay $1,500 of the debts of A. N. L., specifying them, and including the debt-for which C. C. E. was surety, in consideration of a bill of sale of the stock of drugs and goods, fixtures, accounts, books, notes, etc. Upon reaching his home C. C. K. wrote and posted a letter to S. S. H., as follows: “I have just returned from a trip to see Dr. Long; he is very near his end, and will die in a short time. I looked over his business, and find it in good shape. If J. C. Lincoln and myself have time, we can pay every debt with the goods, and have quite a sum left for his wife. Now I don’t want you to make any costs or trouble, as his wife says she will give it all to the lawyers before she will pay it; but I think in a short time after his death we can arrange a settlement with you so you and she will be satisfied. So don’t listen to any lawyers or any one, and if we can arrange it, you will get your just dues, as I hold control of the stock, and will let you know when I go down, which will be ■ in a few days alter his burial. So keep quiet, and if anything you want to know write me. ” This letter was received by S. S. H. while on his way to the county seat to issue execution against A. N. L. -and levy on his goods; but, relying on said letter, he desisted. Three days after the date of said letter, J. C. Lincoln, as agent of C. C. K., presented said proposition to A. N. L., who accepted the same and executed a bill of sale of said goods, books, accounts, notes, etc., to C. C. K., and delivered the same, together with the keys and possession of the store, etc., to J. C. Lincoln,as agent for C. C. K. Thereupon C. C. K. entered into possession of said store, and sold and disposed of the goods and collected the notes and accounts. In an action by S. S. H. against C. C. K. for the amount of his judgment, held, that the said letter, taken in connection with the action of S. S. H. in giving the time required by C. C. K., and not making costs or otherwise interfering with C. C. K. in the control and disposition of said goods, contained all the elements of an agreement in writing to pay said judgment, upon a sufficient consideration, and was good under the statute of frauds</p>

<p>1. Kailroads: Liability as Common Carriers. A railroad company operating a line of railroad in this state, is a common carrier, and cannot, under the provisions of the constitution, limit its liability as such by special agreement with a shipper.</p> <p>2. Trial: Incompetent Evidence. When upon a trial, evidence, incompetent or illegal but which tends to prove the case of the side offering it, is admitted without objection, and considered by the jury in agreeing upon their verdict, the incompetency or illegality of such evidence will not he considered on error or appeal.</p> <p>3.--: Verdict: Special Finding: Error Without Prejudice. When upon a trial to a jury immaterial or improper questions for special findings are submitted to a jury at the request of a party afterward complaining, and the jury is discharged without answering such questions, held, error without prejudice.</p>

<p>Error to the district court for Brown county. Tried below before Kinkaid, J.</p>

<p>1. Attachment: Levy on Exempt Property: Petition. Where, in an action against a sheriff for wrongfully selling exempt property under a final process, the petition alleged the seizure, and sale, and the filing of an affidavit with the officer showing the exempt character of the property; that it was exempt; that the plaintiff was a resident of the state, the head of a. family, and that she was not the owner of a homestead; and. that the property was of a particular value stated in the petition; it was held, that the petition stated facts sufficient to constitute a cause of action.</p> <p>2. -: --•: Rights of Claimant: Liability of Officer. Where, after the levy of an attachment upon exempt property, the defendant filed an affidavit of exemption and inventory of all her property, by.which she claimed that the property was exempt under the provisions of section 521 of the Civil Code, and the officer having the process failed to call appraisers or to take any steps to ascertain whether or not the property was exemp^ it was held, that the decision of the j ustice of the peace before, whom the action was pending, sustaining the attachment, was not conclusive upon the defendant in the action, but that she might maintain replevin, or sue for the value of the property.</p> <p>3. -: -: Husband and Wife: Right of Wife. . Where the property levied upon consisted of household goods, such as bedding, dishes, bed-clothing, etc., belonging to the wife, and by the departure of her husband, for temporary or permanent purposes, the maintenance and support of the family devolved upon the wife, she was entitled to the exemption as the head of the family.</p>

<p>Practice: Appeal and Ebbob. An action at law, or a final order in any special proceeding therein, can he reviewed only on error; but an action in equity, or any special proceeding therein in the nature of a final order, may be reviewed on appeal.</p>

<p>Original proceeding to contest election of defendant as county attorney of Howard county.</p>

<p>Error to the district court for Gage county-. Tried below before Broady, J.</p> <p>cited: Sears v. Brink, 3 Johnson, 214; Rogers v. Kneelcmd, 10 Wend. 250; Kerr v. Shaw, 13 Johns. 236; Taylor v. Pratt, 3 Wis. 674; Saunders v. Wakefield, 4 Barn. & Aid. 595;, Pish v. Hutchinson, 2 Wils. 94; Anderson v. Hayman, 1 H. Black. 121; Emerick v. Sanders, 1 Wis. 79, and cases therein cited.</p> <p>cited: Code,, sections 381, 382.</p>

<p>Error to the district court for Loup county. Tried below before Harrison, J.</p>

<p>1. Trial: Verdict. Where a cause was submitted to a jury upon the demand of a plaintiff and cross-demand of a defendant, and the jury returned a verdict in favor of the plaintiff, but showing an allowance of a part of the defendant’s set-off, it was not error on the part of the district court to refuse to order the jury to retire and return in their verdict the amount allowed to the defendant on his set-off.</p> <p>2. -: -: Remittitur. The evidence examined, and the verdict found to be excessive; and in default of the filing of a remittitur, judgment to be reversed. In case such remittitur is filed, the judgment to be modified and afiBrmed.</p>

<p>Error to the district court for Cass county. Tried below before Chapman, J.</p> <p>cited: Robison v. Uhl, 6 Neb. 328; Brunswick v. McClay, 7 Id. 137; Turner, Frazer & Go. v. Killian, 12 Id. 580; Severance v. Leavitt, 16 Id. 439; Cfurrie et al. v. Knight et al., 34 N. J. Eq. 485; Wallen jr. v. Rossman, Sheriff, 45 Mich. 333; Fearey v. Cummings, 41 Id. 376; FTedmanv. Anderson, 6 Neb. 392; Doyle v. Stevens, 4 Mich. 87; Bump on Fraud- • ulent Conveyances, 3d Ed., 136; Densmore v. Tomer, 14 Neb. 393; Doyle v. Stevens, 4 Mich. 87; Gaboon v. Marshall, 25 Cal. 201; Billingsley v. White, 59 Pa. St. 464; Gutting v. Jackson, 56 N. H. 253; Mead v. Noyes, 44 Conn. 487.</p> <p>cited: Morrdw v. Reed, 30 Wis. 81; Janvrin v. Fogg, 49 N. H. 340; Jones on Chattel Mortgages, secs. 176, 190, 336; Thash v. Norment, 5 Mo. Appeals, 545; Bump on Fraudulent Conveyances, 3d Ed., p. 603; Waples on Attachments, pp. 425, 426, 427,428, and authorities cited; Seidentopf v. Annabil, 6 Neb. 524; People v. McAllister, 19 Mich. 215, 217.</p>

<p>Error to the district court for Colfax county.. Tried below before Marshall, J.</p> <p>cited: National Bank v. Garlinghouse, 22 Ohio St. 492; Davis v. Iiandall, 115 Mass. 547; Barnet v. National Bank, 98 U. S. 555; Stephen v. Monongahela National Bank, 111 Id. 197; Driesbaeh v. National Bank, 104 Id. 52; Bankv. Gruber, 91 Pa. St. 377; Windsor v. McVeigh, 93 U. S. 274-284; Freeman on Judgments, p. 116-122, and cases cited; Herman on Estoppel and Res Adjudicata, p. 110; Aspden v. Nixon, 4 How. 467; Houston v. Musgrove, 35 Tex. 594; Wanzer v. Howland, 10 Wis. 8; Damp v. Town of Dane, 29 Wis. 420; The State v. Richmond, 6 Foster, (N. H.,) 232, and cases cited; Gilliland v. Adm’r of Selles, 2 O. St. 227; Withers v. Patterson, 27 Texas, 494; Pilley v, Cody, 4 Colo. 109.</p> <p>cited: Herman on Estoppel and Res Adjudicata, p. 451; Ela v. McConihe, 35 N. H. 279; Beam, v. MacComber, 35 Mich. 457; Bail-way Co. v. McCarthy, 96 U. S. 258; Bastís v. Bolles et al., vol. VI New Eng. Rep., p. 82; Bigelow on Estoppel, p. 601; Lounsbury v. Catron, 8 Neb. 469; Buchanan v. Dorsey, 11 Id. 373; Strong v. Irwin, 12 Id. 446.</p>

<p>1. Beal Estate Mortgage: Indemnity Mortgage Transferred: Foreclosure by Assignee. Plaintiff purchased of defendant certain real estate upon which a mortgage had previously been executed by defendant to a third party. To indemnify plaintiff against loss resulting from the foreclosure of said mortgage, and against damages resulting from the lien thereby created, defendant executed to plaintiff a mortgage on other-real estate, which mortgage, as collateral security, plaintiff assigned to his co-plaintiff. The mortgage to the third party was foreclosed, the land purchased of defendant by plaintiff sold at judicial sale, the sale confirmed, and a deed executed to the-purchaser. In an action by plaintiff to foreclose the indemnity-mortgage, it was held, that said mortgage was assignable, and that the suit could be maintained thereon by the assignee.</p> <p>2. -: -: Eviction. In such case the condition of the indemnity mortgage being to save plaintiff harmless from all-suits, decrees, judgments, orders of sale, executions, and all damages growing out of the breach of warranty, it was held, that an eviction from possession was. not necessary, it having, been shown that the title had been transferred to the purchaser under the foreclosure of the mortgage to indemnify against which the mortgage in this suit was given.</p>

<p>1. Contracts: Duress. It is those contracts only which are made under fear of unlawful imprisonment, and not those made under fear of imprisonment which would he legally justifiable, that can be avoided for duress.</p> <p>2. Embezzlement: Chattel Mortgage: Ratification. A party being charged with embezzlement, executed a chattel mortgage to secure the debt, and retained possession of the mortgaged property for about a year and a half, when he delivered the possession thereof to the mortgagee. In an action of replevin thereafter brought by the mortgagor to regain possession of the property, held, on the facts proved, that he had ratified the mortgage.</p> <p>3. Contracts. Duress which will avoid a contract is either by unlawful restraint or imprisonment; or, if lawful, it must be accompanied by circumstances of unnecessary pain, privation, or danger, or when the arrest, though made under legal authority, is for an unlawful purpose.</p> <p>4. Evidence. Where papers or letters which are pertinent to the issue are offered in evidence on the trial of a case, they should be admitted. The court will not take notice how they were obtained, nor will it form a collateral issue to determine that question.</p>

<p>1. Burglary. In an indictment for burglary, it is necessary that the name of the owner of the building broken into should be given, and for this purpose the person in the visible occupancy and control of the premises, at the time of the burglary, may be set out as the owner, whether he be the owner of -the title or a tenant.</p> <p>2. -. In such case it is also necessary that the indictment contain an averment that the breaking was with intent to steal property.within the building. ■</p>

<p>Appeal from the district court of Lancaster county. Heard below before Field, J.</p> <p>cited: State, ex rel. Damman, v. Commissioners, 4 Wis. (414) 432, and cases cited; Kerr v. Day, 14 Pa. St., p. 112; Champion v. Brown, 6 Johnson’s Chancery, 398; RerJoins v. Hadsell, 50 111. 218; Souffrainv. McDonald, 27 Ind. 269; Hall v. Center, 40 Cal. 63; Hibbeler v. Quiheart, 12 Neb. 526; Hurd v. Hall, 12 Wis. 136.</p> <p>cited: Gay’s Case, 5 Mass. 419; Rogers v. Rediclc, 10 Neb. 332.</p>

<p>Divorce and Alimony. Under section 22, chapter 25, Compiled Statutes, a district court or supreme court, upon appellate proceedings, (in the same case,) may, after a divorce is granted at the suit of the husband, make a decree for alimony in favor of the wife, out of the property of the husband, even though the decree of divorce be against the wife, for any of the enumerated causes except the adultery of the wife.</p>

<p>1. Petition examined, and held, sufficient -when assailed after judgment.</p> <p>2. Evidence examined, and held, under the issues as formed by the pleadings, sufficient to sustain the verdict.</p> <p>3. Instructions. Objections to instructions, or to the want thereof, not made to the district court, cannot be entertained by the supreme court.</p>

<p>Error to the district court for Kearney county. Tried below before Gaslin, J.</p> <p>cited: Cobb v. Prell, Am. Law Register, N. S., vol. 22, p. 609; Rudolf v. Winters, 7 Neb. 125; Lowry v. Lillman, 59 Wis. 197; Wall v. Schneider, Id. 352; Murry v. Ochdtree, 59 Iowa, 435; Barnard v. Bachhaus, 52 Wis. 593; Tombli/n v. Callen, 28 N.W. Rep. 573; First National Bank v. Oskaloosa Packing Co., 23 Id. 255.</p> <p>cited: 1 Green-leaf Ev., sec. 45, p. 200; Michel v. Ware, 3 Neb. 229; Comp. Stat. 1887, sec. 13, chap. 92.</p>

<p>1. Railroads: Contracteor Grading: Work: and Labor. C. & Co. were contractors to grade the road-bed of a certain railway, and sublet a portion, of the contract to one D. D. was insolvent, and had taken the contract for less than the amount required to grade the same. C. & Co., finding the amount due for labor exceeded the estimates, and to prevent the filing of liens against the railway, which they had agreed to prevent, demanded and obtained from D. the pay-rolls, and undertook to pay the hands employed by D. One B. D., having rendered services ibr D. as foreman on said contract, and with his team, presented his account for such services to C. & Co., who paid only in part: Held, That C. & Co. were liable for such services.</p> <p>2. -: -: Consideration. The prevention of filing liens for services rendered in grading the railway was á sufficient consideration between employes of such subcontractor in grading the railway road-bed, and the contractor, who had agreed to save the railway company harmless from such liens.</p>

<p>Appeal from the district court of Lancaster county. Heard below before Chapman, J.</p> <p>cited: Yassar v. Camp, 11 N. Y. 44; Abbott’s Trial Evidence, p. 289; Iron Co. p. R. R. Co., 91 N. Y. 155; Booth p. Bierce, 38 Id. 463; White v. Corlies et al., 46 Id. 467; O’Neill p. James, 43 Id. 84; Story’s Equity Jurisprudence, vol. 2, p. 425, 437.</p> <p>cited: Whitehorn p. Oram, 20 Neb. 398; Richardson v. Hardwick, 106 IJ. S. 252; Quick v. Wheeler, 78 N. Y. 300; Smith p. Reynolds, 3 Mc-Crary, (C. C.,) 157; Faulkner p. Hebard, 26 "Vt. 452; Gregory v. Cameron, 7 Neb. 419; Maynard- v. Tabor, 53 Me. 511; Curtis p. Blair, 26 Miss. 309; Baker p. Holt, 56 Wis. 100; Tompkins v. Batie, 11 Neb. 153; Horacek v. Keebler, 5 Id. 357-8; Robinson p. Cheney, 17 Id. 673; Gartrell v. Stafford, 12 Id. 679.</p>

<p>Error to the district court for Dixon county. Tried below before Powers, J.</p> <p>cited: Wells on Jurisdiction of Courts, sections 36, 70, 82, (p. 71,) and 271; King v. Merritt, 34 N.W. Rep. 696; Miehle v. Hides, 19 Kas. 582; Taylor v. Brobst, 4 G. Greene, (la.,) 534; People v. Huber, 20 Cal. 81; Atkins v. Atkins, 9 Neb. 202; Jackson v. McLean, 1 S. E. Rep. 785; Hawes on Parties to Actions, section 58; 2 Bates’s Pleadings, Parties, and Forms, 981; Freeman’s Void Judicial Sales, section 17; Dickison v. Dichison, 16 N. E. Rep. 862; Wade on the Law of Notice, section 1296; Noyes v. Barber, 4 N. H. 409; Freeman on Judgments, section 125; Galbraith v. Fleming, 27 N.W. Rep. 581.</p> <p>cited: Boltz v. Stoltz, 41 O. St. 540; Pope v. Mead, 99 N. Y. 201; Probate Law and Practice, (Herrick and Doxsee,) 372; Shawan v. Loffer, 24 Iowa, 218, 226, 227; .Kline v. Moulton, 11 Mich. 370; Miller v. Hoberg, 22 Minn. 249; Bussell v. Erwin’s Adm’r, 41 Ala. 292; Golding v. Golding’s Adm’r. 24 Id. 122.</p>

<p>Appeal from the district court of Pawnee comity. Heard below before Appelget, J.</p> <p>cited: Pa. B. Go. v. Lippincott, 3*0 Am. & Eng. R. R, Cases, 399; Hammersmith, eta., Go. v. Brand, L. R. 4 H. L. 171; Republican Valley R. R. Go. v. Linn, 15 Neb. 234; Rorer on Railroads, p. 33, and authorities cited; Gottschalk v. G. B. & Q. B. B Go., 14 Neb. 550, 560; Hatch v. Vt. Cent. B. B. Go., 25 Vt. 49-64; Pittsburg & Lake Hie B. B. Co. v. Jones, 111 Pa. St. 204; Begina «, The Metropolitan Board of Works, 3 B. & S. 710; Chase-more v. Richards, 7 H. L. Ch. 349; Picket v. The Metropolitan By. Go., L. R. 2 H. L. 175; Metropolitan Board of Public Works v. McCarthy, 7 Id. 243; Tisloe v. Grader, 1 Blackf. 353; Kellogg v. Bicharás, 14 Wend. 116; Stone v. Vance, 6 Hammond, (Ohio,) 246.</p> <p>cited: Republican Valley R.R. Co.v. Fellers, 16 Neb. 169; Cogs-well v. JST. Y. N. II. & II. R. R. Co., 27 Am. & Eng. R. R. Cases, 376; Rigney v. City of Chicago, 102 111. 64; Gottschalk v. G. B. & Q. R. R. Co., 14 Neb. 550; B. & M. R. R. Co. v. Reinhackle, 15 Id. 279; O. & R. V. R. R. Co. v. Rogers, 16 Id. 117.</p>

<p>1. Husband and Wife. In an action for ladies’ furnishing goods, where it is sought to charge the separate estate of the wife, upon the ground that the credit had been given to her and not to her husband, the plaintiff testified that she had copied the account from the books of original entry and had then given such books to her children for scrap books, and that they had mutilated or destroyed the same. The contest being whether the credit was given to the husband or wife, held, that the failure to preserve and produce the books, of original entry, under the circumstances, was ground of suspicion.</p> <p>2. Practice. Ordinarily, where the clear weight of testimony is against the verdict, so that it is apparent that it is wrong, the judgment will be reversed.</p>

<p>Appeal from the district court of' Johnson county. Heard below before Broady, J.</p> <p>cited: Miles v. Caldwell, 2 Wallace, 35; XI. 8. Manfg. Co. v. Stevenson, 17 N.W. Rep. 934; Plerman on Estoppel, sec. 467; M’Lurev. Wheeler, 6 Rich Eq. (S. C.) 343; Dexter v. Harris, 2 Mason, 531; Stewart v. Johnson, 30 O. St. 24; Walsh v. Rutgers Co., ' 13 Abb. Pr. (N. Y.) 33; MoKernan v. Neff, 43 Ind. 503.</p> <p>cited: Brigham v. McDowell, 19 Neb. 412; Nelson v. Bevins, Id. 715; Wells, Res Adjudicata, secs. 229,235, 248, 249; Hapgood v. Ellis, 11 Neb. 131, 142.</p>

<p>Motion to modify sentence of plaintiff in error.</p>

<p>Counties: Division: Election of Officers. Where a new county is created by the division of a larger one, the county commissioners elected at an election ordered by the governor in such new county for the election of officers, merely continue in office until the next general election for such officers, and until their successors are elected and qualified.</p>

<p>1. Pleading. Objections to a pleading when attacked by a motion-to require it to be made more definite and certain, should specifically point out the alleged defects; and a motion to require “the plaintiff to make the allegations in his petition more specfic and certain,” without further particularity is too general to assign-error upon, after an adverse ruling.</p> <p>2. Instructions examined and found not prejudicially erroneous.</p>

<p>Appeal from the district court of Lancaster county. Heard below before Chapman, J.</p>

<p>Error to the district court for Gage county. Tried below before Broad y, J.</p> <p>cited: W. A. Wood Mowing and Reaping Machine Co. v. Crow, 30 N.W. Rep. 609; Winch v. Baldwin, 28 Id. 62; Clanton v. Des Moines & O. S. R. Co., 25 Id. '277; Walsh v. Culbertson’s Estate, 38 Id. 631; Parsons on Contracts, vol. 1, p. 44; Campbell v. Sherman, 49 Mich. 534.</p>

<p>1. Elections: Contesting Election. A complaint filed in an election contest mil be held sufficient in substance if the statute which prescribes what its contents shall be, is followed.</p> <p>2. Judgment. The decision of a special tribunal, where it has jurisdiction of the subject-matter and parties, is conclusive, unless reversed or modified in. the mode provided by law. (State v. Nelson, 21 Neb. 572.)</p> <p>3. Elections: Contest: Parties. A contest of an election is an adversary proceeding, and, where the election to be contested is one upon the question of relocating a county seat, persons or localities having an interest adverse to the contestant, or some of them, are necessary parties to the contest, and such interest must he shown by the complaint.</p>

<p>Error to the district court for Saline county. Tried below before Broady, J.</p> <p>cited: Mills v. Miller, 4 Neb. 444; Coffing v. Taylor, 16 111. 457; Congregational Society v. Perry, 6 N. H. 164; Brown-v. Bellows, 4 Pick. (Mass.) 192; Chase v. Strain, 15 N. H. 535; U. S. v. Packages, 17 Ploward, 96; De Castro v. Brett, 56 Plow. Pr. (N. Y.) 484; Perkins v. Giles, 50 N. Y. 228 ; Morse, Arbitration and Award, 171, 172; 6 Wait’s Act. & Def. 526.</p> <p>cited: Plall v. Vanier, 6 Neb. 85; McDowell v. Thomas, 4 Id. 544; Bmúain v. Curtis, 27 111. 374; Johnson v. Noble, 38 Am. Dec. 485; Stewart v. Cass, 42 Id. 534.</p>

<p>Error to the district court for Gage county. Tried below before Broady, J.</p> <p>cited: Carr v. Selden, 4 N. Y. 91; Teallv. Felton, 1 N. Y. 547; South v. The State of Maryland, 18 How. (U. S,) 403; Haggart’s Trustees v. Lord President, 2 Shaw, Scotch App. 134; Yates v. Lansing, 5 Johns. 282; Randall v. Brigham, 7 Wall. 523; Gray v. Pentland, 2 S. & R. 23; Larkin v. Noonan, 19 Wis. 83*; Mayo v. Sample, 18 Iowa, 306.</p> <p>cited: King v. Root, 4 Wend. 113; S. C.,21 Am. Dec. 109; White v. Nichols, 8 How. (U. S.) 266; Palmer v. Concord, 48 N. H. 217; Pierce v. Oard, 23 Neb. 828; Ellsworth v. Hayes, 37 N.W. Rep. (Wis.) 252; 4 Wait’s, Act. & Def. 305; Cooley on Torts, 211 to 21.6; Howard v. Thompson, 21 Wend. (N. Y.) 319; Fawcett v. Charles, 13 Id. 473; Elam v. Badger, 23 111. 498; Wyatt v. Buell, 47 Cal. 624; Bourreseau v. Detroit, 30 N.W. Rep. (Mich.) 376.</p>

<p>Error to the district court for Richardson county. Tried below before Appelg-et, J,</p> <p>cited: First National Bank v. Yooum, IT Neb. 328; Slaughter’s Administrator v. Gerson, 13 Wall. 379; Lord & Jenness v. Goddard, 13 How. 198; Taylor v. Leith, 26 Ohio St. 428; Veasey v. Doton, 3 Allen, (Mass.,) 380; Benjamin on Sales, vol. 1, sec. 641.</p> <p>cited: Phillips v. Jones, 12 Neb. 213; Benjamin on Sales, 560, note; Jackson v. Collins, 39 Mich. 557; 561; 3 Wait’s Act. & Def. 431, 432; Dillman v. Nadlehoffer, 7 N. E. Rep. (111.) 88, and note citing many cases.</p>

<p>Error to the district court for Lancaster county. Tried below before Field, J.</p> <p>cited: Slaughter People, 2 Douglas, (Mich.,) 334, note; Inhabitants of Saco v. Wentworth, 37 Me. 165; State v. Moss, 2 Jones’s Law (N. C.) 66; Work v. State, 2 Ohio St. 296; Burns v. LaGrange,. 17 Texas, 415; Ex parte Siebenhauer, 14 Nev. 365; Cooley, Constitutional Limitations, 390 to 397; Tiedeman’s Limitation of Police Power, 184; Comity of Amador v. Kennedy, 11 Pac. Eep. 757; Chicago v. Iiumpff, 45 111.. 90.</p> <p>cited: Tiedeman’s Limitation of Police Power, 187; Ex parte Koser, 60 Cal. 189; The State, ex rel. Hahn, v. Hardy, 7 Neb. 377; Horr & Bemis’s Municipal Police Code, sec. 139; City of Canton v. Nist, 9 Ohio St. 440; Johns v. State, 78 Ind. 332; Cincinnati v. Bice, 15 Ohio, 225.</p>

<p>Appeal from the district court of Gage county. Heard below before Broady, J.</p> <p>cited: 3 Suth. on Dam. 587, and cases cited in note; Phillips v. Jones, 12 Neb. 213, 215; Munroe v. Pritchett, 50 Am. Dec. 203; Ghatam Furnace Co. v. Moffatt, 18 N. E. Rep. (Mass.) 169; Cooper v. Sahlesinger, 111 U.S. 148; Bower v. Fenn, 90 Pa. St. 359.</p> <p>cited: Babcock v. IAbbey, 53 How. Pr. (N.Y.) 255; Starr v. Bennett, 5 Hill, (Id.) 303-306; White v. Seaver, 25 Barb. (Id.) 242; Sawyer v. Prickett, 19 Wall. 146.</p>

<p>Appeal from the district court of Lancaster county. Heard below before Field, J.</p>

<p>Original application for mandamus.</p>

<p>1. Municipal Corporation: Grading Streets: Damages. In an action against a municipal corporation for damages sustained by a lot owner by reason of the excavation of a street in front of the property, for the purpose of reducing it to an established grade, the question of the proper method of proving damages cannot be for the first time raised in the supreme court.</p> <p>2. -: -: -. Special benefits, which should be deducted from damages sustained by real estate by reason of a public improvement, must be such as specially benefit the particular property damaged, aside from benefits conferred upon other property generally in the neighborhood of or adjacent to the improvement.</p> <p>3. Instructions examined and no error found in such as were given, or in refusing those not given.</p>

<p>Practice. The case depending almost exclusively on an examination of questions of fact, the evidence is reviewed, and held, to sustain the'decree of the district court.</p>

<p>Error to the district court for Playes county. Tried below before Cochean, J.</p>

<p>1. Evidence: False Weights and Measures. In an action by B., wbo was tbe owner and vendor of certain beef cattle and fat hogs, against F., the purchaser of said cattle and hogs, for falsely weighing the same and refusing to correctly weigh and give the true weight thereof, to the plaintiff’s damage, upon the evidence, facts, and circumstances, set out at length in the opinion, held, that the opinion of witnesses of long experience in raising, feeding, handling, and weighing, cattle and hogs, was admissible in evidence, for the purpose of establishing the falsity of such weight.</p> <p>2. Evidence examined, and held, to sustain the verdict.</p>

<p>Assumpsit. W., who was temporarily absent, was the owner of a frame building on the lot of an owner who was about to commence an excavation for the purpose of rebuilding, and who had given out his intention to tear the frame building down unless it was immediately removed. S., a friend of W., applied to K., engaged in removing irame buildings, and employed him to remove the building to a designated lot, informing him that he was' acting for W., who had a chattel mortgage .on the building and was amply able to pay; but that if he did not, he, S., would see that he had his pay. On these terms, K. moved the building to the extent of his contract, and went after W. for his wages; but not finding him at his place of business, and getting no satisfaction for his labor, sued S. as principal. Held, That S. was liable.</p>

<p>1. Action quia timet: Taxes. In an action guia timet, for the purpose of removing the cloud cast.by a tax title, from real property, and to quiet the title in him, it appeared that the plaintiff and those under whom he claimed, had been in the exclusive uninterrupted possession of said land for more than ten years, and that said taxes had accrued and said tax deed been executed more than ten years before the bringing of the action. Held, That as the plaintiff sought equitable relief from said taxation and tax deeds, notwithstanding the statute of limitations, he must, as a condition of relief, do equity by paying such taxes and interest.</p> <p>2.--: -: Attorney’s Fee. In such action where a decree is rendered upon an answer or cross-petition of a defendant for such taxes, interest, and disbursements, or either of them, an attorney’s fee equal to ten per cent thereon will be awarded.</p> <p>3. Real Estate: Title: Meeger. Where the general owner of real property receives a deed therefor from a person holding a tax title to said property, the title conveyed by such deed will become merged in the title of such general owner.</p>

<p>Information in the nature of a quo warranto.</p>

<p>1. Bastardy: Plea: Trial. One P, being charged under the bastardy act with being the father of a bastard child, was recognized to appear before, the district court to answer to the charge. He thereupon appeared in that court and entered a plea of ‘.‘not guilty,” and a trial was had which resulted in a verdict of guilty. This verdict was afterwards set aside and a second trial had, which resulted in 'a verdict of guilty. Held, That the plea of “ not guilty” having been entered on the first trial, it was unnecessary to again enter the plea on the second trial. Quiere .- Whether the failure to enter the plea before trial would affect the verdict.</p> <p>2. - — : Evidence. On a trial under the bastardy act the complaining witness testified that the defendant had sexual intercourse with her on a day named. The defendant, thereupon, while testifying in his own behalf, denied that he had intercourse with her on that day. Held: 1. That any question relating to the situation of the plaintiff and defendant while together on that day, or about, that time, was proper on cross-examination. 2. That the denial of sexual intercourse on the day named was not a denial that such intercourse had taken place.</p> <p>3. Errors -which occur on the trial must he assigned in the motion for a new trial, or they will not he considered.</p> <p>4. Verdict. Held, -That the verdict was sustained by the evidence.</p>

<p>1. Action: Real Party in Interest : Trial : Question for Jury. One T. being the owner of certain real estate, desired to sell the same, and employed M. & B.,real estate agents, to effect a sale at a specified price. The price was advanced from time to time until about June 1,1887, when M. & B. employed one S. to find a purchaser on the terms specified, which, in two or three days afterwards, he did. S. thereupon brought an action against T. for his commission, and was defeated. M. & B. thereafter brought an action against T. to recover commission for the sale, when the judgment against S. was pleaded in bar.' Held: First, that the judgment against S. would not bar a recovery by M. & B. Second, that the remedy of S. to recover compensation was against M. & B. Third, that questions of fact must be submitted to the jury, and an instruction in effect withdrawing such questions from the jury, was erroneous.</p> <p>2. -: Bar. A finding and judgment against one who from want of interest cannot maintain the action, will not bar the real party in interest from bringing and maintaining the suit.</p>

<p>Error to the district court for Johnson county. Tried below before Broady, J.</p>

<p>1. Fraud: Sale of Personal Property: Evidence. Where the grantor of personal property was heavily indebted at the time of the conveyance, and soon after the transfer made statements in derogation of the tona fides thereof on his part, in a contest between the grantee and the creditors of the grantor over the property, the creditors alleging the sale to have been fraudulent, such statements are proper to be proven for the purpose of showing fraud on the part of the grantor at the time of the conveyance, but not for the purpose of showing fraud on the part of the grantee, or of impairing his title.</p> <p>2. Attachment: Replevin: Damages. Where property is replevied from an officer who has possession by virtue of a levy of an order of attachment, and the trial of the replevin suit results in a verdict and judgment in favor of the officer, his measure of damages is the amount due the attachment plaintiffs at the time of the levy of the order of replevin, (within the value of the property,) and not including writs of attachment which came into his hands after he had been divested of his possession by the'replevin proceedings.</p> <p>3. Chattel Mortgage. "Where a debtor, for the purpose of securing a debt, conveys personal property to his creditor, giving him the’possession thereof with authority to the creditor to sell the same and account to the debtor for the surplus after paying the debt so secured, together with the necessary expenses of sale, etc., the instrument by which the conveyance was made will be treated as a chattel mortgage as well between the grantee and the creditors of the grantor as between the parties to the transfer.</p> <p>4. Instructions given to a jury upon the trial of a cause must be-applicable to the evidence adduced.</p> <p>5. "Verdict. Evidence examined, and held, not to sustain the verdict.</p>

<p>1. Trial: Evidence: Question foe Juey. A question of reasonable time arising upon parol evidence, witbin which a purchaser of certain school-land leases was required to go upon, examine the land, and decide whether it proved to be of the quality as represented, there being a dispute as to the facts, and conflict of evidence, held, to be a question of fact and not of law.</p> <p>B. Real Estate: Contract of Sale: Breach: Forfeiture. In an action for the breach of a contract to take back certain school-land leases purchased by the plaintiff from the defendant, and repay the purchase price therefor, in case the land should not prove to be of the quality as represented, held, that the fact that at the time that the plaintiff offered to reassign the leases to the defendant and demanded the performance of the contract, there was rent or interest past due on the said leases for which they might have been declared forfeited by the state board of educational lands and funds, constituted no defense to the action.</p>

<p>Error to the district court for Lancaster county. Tried below before Field, J.</p> <p>cited: Benjamin on Sales, 4th Am. Ed., secs. 181,1040; Rodgers v. Phillips, 40 N.Y. 519; Stafford v. Walker, 67 111. 83; Barton v. Kane, 18 Wis. *262; Downer v. Thompson, 6 Hill, 208; Smith v. Rettee, 70 N.Y. 13; Bishop on Contracts, sec. 679; Farrar v. Peterson, 52 la. 420; Stoddart v. Warren, 7 Reporter, 517; Stilwell v. Mut. Life Ins. Go., 72 N. Y. 385.</p> <p>cited: Parsons on Contracts, vol. 1, p. 565; Williams v. Flood, 6 Western Rep. (Mich.,) 175; Downer y. Thompson, 6 Hill, 208; Keith v. Hersehberg Optical Co., 48 Ark. 138.</p>

<p>1. Negligence. The evidence is examined, and held, sufficient to sustain the finding by the jury of negligence on the part of plaintiff in error, and the absence thereof on the part of defendant in error.</p> <p>2. Injuries to Person: Damages. Where in an action for damages by reason of a personal injury, the court instructed the jury among other things that in case they found for the plaintiff in the action they could take into consideration bodily pain and suffering, loss of time and reduction of plaintiff's ability to earn money in her business and calling; the instruction was sustained as being applicable to the evidence produced on the trial.</p> <p>3. Instructions: Exceptions. The ruling of the district court refusing to give an instruction asked must he excepted to in order to justify the supreme court in reviewing it.</p> <p>4. The Verdict and judgment held to be not excessive under the evidence.</p>

<p>1. Instructions. “ If an instruction assume the possible existence , of a state of facts which tbe jury have no right to find, there being no evidence, it is error.” {City of Crete v. Childs, 11 Neb. 253.)</p> <p>2. -. Where, upon a jury trial, an instruction is given by which it is sought to include the whole of the ease necessary to a verdict in favor of one of the parties to the action, all elements necessary to the conclusion should be embodied in the instruction; otherwise it should not be given.</p>

<p>Error to the district court for Douglas county. Tried below before Groff, J.</p> <p>cited: Pa/nnell v. State, 29 Ga. 681; The King v. E’Eon, 3 Burr. 1514; People v. Vermilyea, 7 Cowen, 388; Brill v. Lord, 14 Johns. 341; Louisville, N. A., etc., R. Co. v. Fahey, 3 N.-E. Rep. 389; Quinn v. Higgins, 63 Wis. 664; Cowan v. State, 22 Neb. 525; State v. Jones, 50 N. H. 369.</p> <p>cited: Maxwell’s Crim. Procedure, p. 566; 1 Russell on Crimes, note 1, p. 27, (9th Ed.;) Webb v. State, 9 Texas Appeals, 490; Wharton on Evidence, (3d Ed.,) sec. 451; Carr v. State, 23 Neb. 749.</p>

<p>Error to the district court for Lancaster county. Tried below before Field, J.</p> <p>cited: Maxwell’s Pleading and Practice, 167; 2 Shearman & Red-field on Negligence, 478; Grand Rapids & Ind. R. R. Co. v. Huntley, 38 Mich. 537; Union Pacific Ry. Co. v. Young, 8 Kas. 658; Sexton v. Cook County, 114 111. 147; Vigeant v. Scully, 20 111. App. 437; Lawson, Expert and Opinion Evidence, 86; Fairbanh v. Hughson, 58 Cal. 314; Beach on Contributory Negligence, 7; Railroad. Co. v. Jones, 95 U. S. 439.</p> <p>cited: Frick v. St. Louis, K. G. & N. By. Go., -75 Mo. 595; Bohan v. The Milwaukee, Lake Shore & Western B. B. Go., 58 Wis. 30; Worthen v. Grand Trunk By. Co., 125 Mass. 99; Patterson, Railway Accident Law, 424; Yam Horn v. B. C. B. & N. By. Co., 59 Iowa, 33; Hoppe, Adm’r, v. Chicago, Milwaukee & St. Paul By. Co., 61 Wis. 357; Bowen v. N. Y. Cent. B. B. Co., 18 N. Y. 408; C. & A. B. B. Co. v. Kellam, 92 111. 245; Brown v. N. Y. Cent. B. B. Co., 34 N. Y. 404.</p>

<p>Guardian and Ward. In an action by tbe guardian of a person alleged to be insane, to cancel a deed of conveyance of real estate, the court below found that there was a failure to prove insanity, and that the conveyance was valid. Held, That the finding and judgment were sustained by the proof.</p>

<p>Error to the district court for Red Willow county. Tried below before Cochran, J.</p>

<p>1. Occupying Claimants: Improvements. Occupying claimants of land who have made lasting and valuable improvements thereon, but have afterwards been evicted, are entitled to compensation for such improvements in all cases where they, or the persons under whom they claim title, derived the same from lawful public authority.</p> <p>2. -: -: Tan Title. The words, “such tax titles,” and “ such tax deeds,” in the proviso of section 11, chapter 63, Compiled Statutes of 1887, do not relate to words of like import previously occurring in the chapter; and the word “such ” being restrictive in its meaning, was evidently designed to apply to a particular class of tax deeds not described, and not to tax deeds generally. A person claiming title under a tax deed and making lasting and valuable improvements on the land, paying taxes, etc., is entitled to compensation, for the same.</p> <p>3. -:--. While the intention of the law is that compensation shall be made for such improvements before a writ of restitution will be issued, yet where the application was properly filed, and an amended application made within six months afterwards, it will not debar a party from recovering.</p>

<p>1. Taxes: Void Sale. Where a county treasurer sells lands for taxes which were not liable to taxation, and upon which no taxes were due, the tax purchaser may recover from the county the amount paid by him, with interest thereon.</p> <p>2. -: -: Liability of County. Where a county has caused land which is not taxable to be assessed and taxes levied thereon under which the land is afterwards sold and attempted to he conveyed, and the county from year to year afterwards causes said land to he assessed and taxes levied thereon, the tax purchaser may pay such taxes to protect his supposed lien, and, upon the failure of his interest in the land, may recover the amount he has so paid, with interest thereon, from the county.</p> <p>3.--: -: -. Where a county has caused certain real estate to be assessed, and taxes to be levied thereon, a tax purchaser may presume that the property was taxable, and is not required to make a further examination of that fact as a condition of maintaining an action against the county for the purchase money, and interest, and taxes thereafter paid to protect the tax lien which was believed to exist.</p>

<p>Husband and Wife. In an action against a wife to recover for meat nsed in keeping a restaurant, the testimony showed that the restaurant had heen purchased by the husband and carried on in his name, and that the account was charged in the surname of the husband and wife. Held, That a verdict in effect that the wife was not liable for the debt, was supported by the clear weight of evidence.</p>

<p>Error to the district court for Boone county. Tried below before Tiffany, J.</p>

<p>1. Husband and Wife. In an action by attachment against a husband, the wife brought an action of replevin and recovered possession of the goods and had judgment in the court below. It appeared that the parties had formerly lived in Iowa and were possessed of a valuable farm and considerable personal property; that there was a first mortgage on the farm of from $8,000 to $9,000, also a second mortgage for more than $2,000, and chattel mortgages to the latter party on the personal property. The land was sold under the first mortgage and redeemed by the second mortgagee, who thereupon foreclosed his chattel mortgages and purchased the property, and after satisfying his own claim, delivered the surplus to tbe wife. Held, No fraud being charged or proved in the premises, that the wife took a good title as against the creditors of the husband.</p> <p>2. -. The fact that the husband lists his wife’s property for assessment in his own name, or even pays the taxes thereon, is not conclusive that he is the owner of the property.</p>

<p>Error to the district court for Dixon county. Tried, below before Powers, J.</p> <p>cited: Dillon v. Linder. 36 Wis. 344; Davis v. Justice, 31 O. St. 363; Bar-net v. National Bank, 8 Otto, 559; Potter’s Dwarris on Statutes, pp. 162, 228, 229, 275.</p> <p>cited: Ashton, v. Jones, 14 Neb. 428.</p>

<p>Original application for mandamus.</p>

<p>1. Conveyance: Deed Shown to be Mortgage. F., the owner of a farm in Webster county, negotiated a loan of money thereon from one Fay, of New York, through T., a loan and investment agent at Hastings. The mortgage upon the farm was executed to Fay, hut delivered to T., who attended to the collection of the interest, and, from the character of his dealings with Fay, was the moral guarantor of the interest and principal. F. made default in the payment of interest. T. being absent, wrote to one D., his local and general agent, that he would assume the mortgage in consideration of a warranty deed of the farm. Thereupon D. applied to F., and informed him that he was sent by T. to demand the interest,and that unless some arrangement was made, the mortgage would be foreclosed; that if F. would make them a deed of the farm, they would take the land and sell it, and whatever was over after paying the mortgage, taxes, and expenses, they would return to him; and that F. might have the same privilege, in which case he could turn over the proceeds sufficient to pay the mortgage. Thereupon F. executed a warranty deed of the farm to T., and delivered it to D. This deed, as between F., and T., held, to be a mortgage.</p> <p>2. -: -. A deed, absolute in its terms, may be shown by pároli to have been given for the purpose of securing the payment of money; in which case, as between the parties, such deed will be construed to be a mortgage only.</p>

<p>Error to the district court for Johnson county. Tried below before Broady, J.</p>

<p>1. Mills and Mill-dams. Where a mill-dam is built across a natural water course without leave to build or continue the same obtained under the provisions of the statute, one or more owners of lands overflowed or injured thereby, may prosecute proceedings, under the provisions of the statute, against the owner of such mill-dam for the damages caused by such overflow or injury; and neither in the pleadings nor upon the trial will the persons so proceeding be required to negative the existence of other property also overflowed or injured by reason of the erection of such dam,, nor of other persons entitled to damages therefor; nor will the person so proceeding be required to prove or establish any fact which would be necessary or favorable to the owner of such mill-dam in a proceeding by him for leave to build or continue the same.</p> <p>2. -. An allegation of pleading that land was damaged by being “overflowed,” held, established by proof that the water of the stream being set back by the dam and caused to stand at a greater depth in the bed of the stream, by reason thereof percolated through the earth so as to rise and stand therein within one and two feet of the surface.</p>

<p>1. Res Adjudieata. A judgment or ruling of this court in a case or point distinctly and finally made will be held to be the law of the case in which made throughout its course of litigation; without regard to the number of times it may be brought before the court, or to the intrinsic merits of such judgment or ruling. (Hiatt v. Brooks, 17 Neb. 33; Leighton v. Stuart, 19 Id. 546; Marion v. State, 20 Id. 247; Lane v. Starkey, Id. 586.)</p> <p>-.2. Partnership: Guaranty: Action: Pleading. D. W. & S. were a firm owning goods and carrying on a business and owing partnership debts. S. sold out his interest to G., whereupon and in consideration of such sale, the new firm of D. W. & G. guaranteed to pay all the debts of the old firm of D. W. & S. and keep S. harmless in respect thereto. Afterwards, W. sold out his interest to N., whereupon and in consideration of such •sale, the new firm of D. N. & G. guaranteed to pay all the debts of the firm of D. W. & G. and keep W. harmless in respect, thereto. Afterwards, the firm composed of D. N. & G., by the-name and designation of D. N. & Co., sold to M. a one-fourth interest in said goods and business, whereupon said new firm of D. N. G. & M. guaranteed to pay all the debts and liabilities, of the said preceding firm of D. N. & Co. Afterwards D. sold his interest in said goods and business to said M. 3ST. & G., wh® guaranteed to pay all the debts and liabilities of the said firm of D. N. & Co. and to keep D. harmless in respect thereto, including all the debts and liabilities above mentioned. After-wards the said last firm of N. G. & M. was dissolved by the withdrawal of'G., in consideration of which N. & M. guaranteed to pay all the debts and liabilities above mentioned; and afterwards the remaining firm of N. & M. dissolved, M. retaining all the property and effects of the said partnership, and in. consideration thereof guaranteeing to pay all the debts and, liabilities of said last-named partnership, including the debts- and liabilities above described. None of said several firms paid all of the debts of the original firm of D.W. & S.; but after the sale by W. to N., certain of the said debts remaining unpaid, S. and W. were obliged to pay and did pay them. In an action by S. in his sole name against M. on his guaranty to pay said debts and keep him, S., harmless in respect thereto, held, that the-petition without an allegation of the payment of such debts and liabilities by S. aud W. and the assignment of his interest in, such payment by W. to S., is insufficient.</p>

<p>1. Attorney and Client. Where an attorney was employed to defend a prosecution in bastardy and in violation of his retainer sought to appear for the plaintiff in the action, and was perpetually enjoined from so doing, such retainer and injunction will not prevent him from accepting a retainer and appearing for the plaintiff in a suit for damages resulting from a breach of contract for mafriage, the plaintiff and defendant being the same as in the prosecution for bastardy.</p> <p>2. Marriage: Breach of Promise: Damages. The loss of social standing in the community in which a plaintiff in an action for damages for breach of promise of marriage resides, caused by the seduction of the plaintiif, is an element of damages to be ‘considered in such action, and a ruling of the trial court permitting the plaintiff to state in her evidence that since, she had ‘been w sneered at ” upon the streets in the city in which she re-sided, would'not be error requiring the reversal of a judgment rendered upon a verdict in the plaintiff’s favor:</p> <p>•'3. —-: Evidence. In such case it was not error for the court to permit the plaintiff to testify that the defendant was the father of an illegitimate child, begotten by him while the agreement for marriage existed, and on the faith thereof on the part of the plaintiff in the action.</p> <p>*'4. Witnesses: Examination. Where, upon the examination in chief of a'defendant, a question is propounded to him the answer >to which Is excluded, upon objection of the plaintiff, a reviewing‘court will not inquire whether the trial court erred in 'exdlnding the evidence if it appears that the witness was after-'wards interrogated, and testified fully upon the subject upon 'which ‘he was interrogated.</p> <p>■5. Y erdict. 'If he'evidence examined, and held, sufficient to sustain the verdict‘of the .¡jury.</p> <p>'6. Marriage: ©eemch <m IPbomise: Damages. In an action for damages ffdriE breach of [promise of marriage, where there was sufficiétit'évidence to justify the jury in finding that the promise was made, and that the defendant had seduced the plaintiff through and by reason of Baer reliance upon his promise, it was held, that a verdict in favor of the plaintiff for $7,000 damages was not excessive.</p>

<p>Error to the district court for Nance county.- Tried’ below before Post, J.</p> <p>cited: Greenleaf on Evidence, sec. 51; Stephen on Pleading, secs. 84, 85.</p> <p>cited: Schreclcengast v. Ealy, 16 Neb. 514,</p>

<p>.Conversion: Replevin. A instituted an action in replevin against C -'V B fdr'thb possession of certain personal property. The order of • Aplfevinl Was placed in the hands of C, the sheriff, for execution, '‘b/'Viftüé'-of which he seized the property. A executed and ’'■'deliVéi'éd’to' C a replevin bond, with sureties which were ap- ‘ 'pfbVfed^by'tóm; b’utthe property was left in the care of C to the 1 'eitebt'that'if was not delivered manually to A. A and B then ‘''s'é'ttled'the'matter in controversy between them. D, the person *“ fiW wholh 'B'had received title to the property by bill of sale, -' executed aildther bill of sale to E, and C, by direction of A, de1 -liVéi-eá th'é property to E without B’s knowledge or conseut.' ‘ 'In "an a6‘ticiril'by B against C for the value of the property re-J pl'eWbd, it Ms' held, that C was liable, and that neither the 1' exfecutitín bf thfe' replevin bond nor the direction of A to him to 1 'dbli'vfer1 the 'property to E, would constitute a legal excuse rellév.ihg'him'froin'such liability. b l , '. ..i I ■ ■ in</p>

<p>1. Criminal Law: Warrant. A complaint in writing signed by tbe complainant and sworn to before the clerk of the district court within his jurisdiction and filed in the office of the justice of the peace, would be sufficient to require him to issue a warrant thereon._</p> <p>2. -: Information. Where a criminal statute is descriptive of the offense which is declared to be a crime, an information or complaint filed before a justice of the peace, the charging part of which is in the language of the statute, will be held, sufficient.</p> <p>3. Constitutional Law: Section 28 of chapter 61, Laws of 1881, commonly known as the Slocumb law, held, constitutional so far as this case is concerned, without a discussion of the question.</p>

<p>1. Taxes: Deed: Mandamus. In an application for a mandamus to compel the county treasurer to execute to the relator, who was the holder of a certificate of purchase at the tax sale, a tax deed, it was shown that the land had heen redeemed subsequent to the sale; but there was no proof that the person paying the redemption money had authority from the person in whose name the payment was made. It was held, that there was a presumption that the necessary authority was shown to the treasurer to entitle him to receive the money, the acts of public ' officers being presumed to he regular.</p> <p>3. -: -: Redemption. In making such redemption, the amount paid was the taxes with accrued interest; but nothing was paid as printers’ fees, under the provisions of sections 123 and 125 of the revenue law of this state. It was not shown u (upon (the trial that any proof had been left with the treasurer of the amount actually paid for the publication of the notice required by said sections, and that the failure to pay the printers’ fee would not avoid the redemption.</p>