Volume 28 — Nebraska Reports

Tried below before Broady, J. If. the testimony in rebuttal, as to the agreement between Griffin and Aldrich for the settlement of the judgments upon which the executions were issued, was admissible at all, the burden of showing payment of such judgments rested on defendant in error. A mortgagor of chattels, so long as he holds possession, has such an interest as can be levied on.

Heard below before Field, J. Sec. 2, art. 2., ch. 54, Comp. Stats., providing for a lien for laborers and material men, is a remedial statute and should be liberally construed. (Rogers v. Omaha Hotel Co., 4 Neb., 48.) The evident intention of the legislature, as gathered from the act itself, was that a railroad company should see that all material used in construction was paid for by the contractor.

Heard below before Wakeley, J. To establish an agreement for sale sufficient to entitle o.ne to specific performance it must appear that there was a “ clear accession on both sides to one and the same set of terms.” (Lanz v. McLaughlin, 14 Minn., 72; Hamlin v. Wistar, 31 Minn., 418 [18 N. W. Rep., 145]; 2 Story, Eq.

Tried below before Chapman, J. Leading questions, on direct or redirect examination, are not permissible. (1 Greenleaf, Ev., sec 434; Smith v.-Shoemaker, 17 Wall. [U. S.], 630.) The evidence shows that 'the land was occupied through mutual mistake; and in this regard the case differs from Tex v. Pflug, 24 Neb:, 666; hénce the possession was not adverse.

Heard below before Doane, J. Ch. 54, Comp. Stats., gives the material man alien upon buildings “and” the land on which they stand. If the lien does not attach to the buildings as such, but only because they are a part of the land, the words in the statute preceding “and” would be meaningless surplusage, and such a construction will not, if it can be avoided, be given to a legislative act. There is no provision making the lien dependent on the land or title thereto.

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

Tried below before Harrison, J. Mere statements under oath, or conclusions of a party, are not proof. (2 Bouvier, Law Diet. [15th Ed.], 748; Greenleaf, Ev. [14th Ed.], 1; Jameson v. Butler, 1 Neb., 118; State, ecc rel. Barries, v. Thateh, 5 Id., 96; Ingalls v. Nobles, 14 Id., 274.) The granting of a continuance is discretionary with the trial court. {Holt v. State, 11 Ohio St., 691, and cases supra.)

Tried below before Norval, J. Before the company can be held liable under the conr demnation act (see. 97, ch. 16, Comp. Stats.), it must have appropriated some portion of the land to be affected. (B. & M. R. Co. v. Reinhaelcle, 15 Neb., 279; R. V. R. Co. v. Fellers, 16 Id., 169; C., K. The embankment and the trench were proper elements to consider in assessing damages.

<p>Error to the district court for Douglas county. Tried below before Wakeley, J.</p> <p>cited: PZoilman v. Steele, 18 Neb., 652; Churchill v. Holton, 38 Minn., 519; Ludlow v. Dole, 62 N. Y., 617.</p>

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

<p>Error to tbe district court for Richardson county. Tried below before Appelget, J.</p> <p>cited: C., B. & Q. R. Co. v. Magee, 60 111., 529 ; Indianapolis & C. R. Co. v. Adkins, 23 Ind., 340, 345; Indianapolis, P. & C. R. Co. v. Shimer, 17 Ind., 295; Russell v. Hanley, 20 la.,219 ; Vanhorn v. Burlington, C. R. & JY. R. Co., 63 la., 67 ; Pames v. Boston & W. R. Co., 14 Allen, [Mass.], 151; Maynard v. Boston & M. R. Co., 115 Mass., 458 ; Brooks v. N. Y. & F. R. Co., 13 Barb. [N. Y.], 594.</p> <p>cited: C.& A. R. Co., 92 III., 247; Baler v. G, B. & Q. B. Co., 73 la., 389 [35 N. W. Rep., 460].</p>

Tried below before Field, J. The animal was killed at a point where the company was not required to fence. (Clary v. B. & M. R. Co., 14 Neb., 232.) The mere fact of the killing is not evidence of negligence. (3 Wood’s Railway Law, 1547.) The train was running not more than four miles an hour, while a speed of eighteen miles through a city is not negligence. (B. & M. R. Co. v. Wendt, 12 Neb., 76.) The animal was running at large at a place where the city ordinance forbade it.

Tried below before Broady, J. The agreement between Gadd and Meier, that the former was to be substituted as the debtor of the company without its knowledge, does not constitute a payment of the premium.

<p>Error to the district court for Loup county. Tried below before Harrison, J.</p> <p>cited: Oropsey v. Averill, 8 Neb., 151; Fox v. Abbott, 12 Id., 331; R. V.‘ R. Co. v. Sayer, 13 Id., 282; Newlean v. Olson, 22 Id., 719; Wells on Replevin, secs. 388, 394; 2 Sutherland on Damages, pp. 8, '46.</p> <p>cited: Orr v. Seaton, 1 Neb., 107; Oropsey v. Wiggenhorn, 3 Id., 117; Crowell v. Galloway, Id., 219; Kane v. People, 4 Id., 512; Aultman v. Steinan, 8 Id., 113; Burnham v. Doolittle, 14 Id., 215; White v. Merriam, 16 Id., 96; Thrailhill v. Daily, Id., 116.</p>

<p>1. Usury: Evidence: Review. In an action to forclose a real estate mortgage, by the transferee of the note and mortgage, the defense was that the only consideration for the note was usurious and unlawful interest promised upon a loan of $1,000, and a denial of the purchase by plaintiff of the note for value before maturity, and without notice of defenses. Upon the trial it was stipulated and agreed in open court, that if a certain witness were present he would testify “ that the entire consideration for which the note and mortgage were given was for usurious interest on the loan of money ” referred to. No evidence was of fered for the purpose of contradicting the fact. Upon appeal to the supreme court it was held that objections could not be there made for the first time to the evidence as the statement of a conclusion, and not of the existence of facts from which the conclusion could be drawn.</p> <p>2. --: Bona Fide Holder. The evidence examined and found to sustain a finding, that the plaintiff had not shown himself to be a bona fide holder of the note.</p>

Tried below before Grope, J. No verdict can be corrected after the jury’s discharge. (Davis v. Neligh, 7 Neb., 78; Longfellow v. State, 10 Id., 105; Code, secs. 290,291.) The verdict in this case is inconsistent and no valid judgment can be founded’upon it. (New-son v. Saffin, 7 Ohio, 587; Meredith v. Kennard, 1 Neb., 316.) The judgment should have been for the plaintiff.

Tried below before Field, J. An instruction is erroneous which tends to mislead the jury or withdraw from it a question of fact. [Esterly v. Van Slyke, 21 Neb., 614; Severances. Melich, 15 Id., 614; Harrison v. Baker, Id., 46; Meredith v. Kennard, 1 Id., 319.) A party has a right to have instructions given without modification when they are proper and not covered by other instructions.

<p>Appeal from the district court for Gage county. Heard below before Appélget, J.</p>

<p>1. Witnesses: Credibility: Question or Pact. In an action by A, B & C against D to recover for money had and received by . the defendant “ to and for the use of the plaintiffs,” etc., the answer of the defendant in effect alleged payment. Held, There being a direct conflict in the evidence that the question of the credibility of .the witnesses was for the jury, and the preponderance of evidence against the verdict not being so great as to show that it was clearly wrong, the verdict would not be set aside.</p> <p>2. Supreme Court: Submission Without Briers. Where a cause is submitted without briefs pointing out objections to instructions given or refused, such instructions will not be examined.</p>

<p>1. Eminent Domain: Damages : Witnesses. Where witnesses are shown to be familiar with the value of a particular piece of land across which a railroad has been built, they are competent to testify as to the value of such tract of land immediately before the location of the road and to the value thereof immediately afterwards. (B. V. B. B. v. Arnold, 13 Neb., 485 ; N. E. N. B. Co. v. Frazier, 25 Neb., 53-4.)</p> <p>2. -: Elements oe Damage. Where there is a stone quarry upon the right of way which will he destroyed by reason of the grading and road-bed, witnesses familiar with the value of such quarry may he interrogated in regard to the same, as its Value is a proper element of damages for the consideration of the jury. So where a dwelling house is situated on the right of way and will become the property of the company condemning the land.</p> <p>S. Instructions set out in the record, held, properly given, and those refused tvere not based on the evidence.</p> <p>4. Damages: Interest : Error Without Prejudice: Where the amount of the verdict exceeds the award of the commissioners the jury should he instructed to allow interest on the value from the time of condemnation. (S. & P. B. Co. v. Brown, 13 Neb., 318.) Where, however, such instruction was withheld by the judge at the request of the attorneys for the railway company upon an agreement that if the verdict exceeded the award the court might add interest thereto, held, that_as the verdict did exceed the award, therefore the land owner was entitled to interest on the value as found by the jury, and that a judgment for interest on the verdict, although irregular, was error without prejudice.</p>

Tried below before Appelget, J. The leases not having been recorded, could not affect the rights of innocent third parties and were besides attempts to charge a thing not in esse, as they were made before planting the wheat. (Lanphere v. Lowe, 3 Neb., 131; Boggs v. Thompson, 13 Id., 403.) Conclusive evidence was necessary to show that the chattel mortgage was modified. [Sloan v. Beaker, 26 N. W. Rep. [Minn.], 730 ; Guernsey v. Am. Ins.

Tried below before Doane, J. The company is not required to warrant the safety of the servant or the perfection of the appliances, but only to use reasonable care to prevent accident. (Smoot v. B. Co., 67 Ala., 13; Col., eto., B. Co. v. Troesch, 68 111., 545; B. Co. v. Arnold, 31 Ind., 174; Cayzer v. Taylor, 10 Gray [Mass.], 274; Gilman v. B. Co., 10 Allen [Mass.], 233; Coombs v. New Bedford Cordage Co., 102 Mass., 572 ; Gibson v. Pac.

<p>1. Homestead. “ The homestead law in force when a contract was entered into is the law applicable to such contract.” (McHugh v. Smiley, 17 Neb., 620.)</p> <p>2. -: Legislature Cannot Diminish Vested Right. Under the homestead law of 1867, the homestead of a debtor is not liable to a sale upon attachment or execution, so long as it is owned and occupied as a homestead by the debtor. While a judgment will continue to be a lien upon it, which will become operative upon sale, or abandonment, yet it is not within the power of the legislature, by subsequent enactments, to diminish the right conferred by that law and acquired (as against the debts then in existence) by residence and occupation.</p> <p>3. -: What Constitutes. In its inception, the substance of a homestead is a parcel of land on which the family resides. It is constituted by residence and selection according to law. Where these things exist, the homestead becomes a right in the premises, exempted by law from forced sale.</p> <p>4. -: Case Stated. S. was the owner of a homestead of about eighty acres situated near the city of O., upon which he resided with his family and which under the homestead law of 1867 was exempt from sale for the satisfaction of judgments rendered upon indebtedness contracted prior to the repeal of said law. By a subsequent act of the legislature the city of O. was authorized to extend its boundaries, which it did, and .which, when so extended, included the land of S., but to which he did not consent. It was held, that by bringing the property within the corporate limits of the city the homestead exemption was not diminished.</p>

<p>Error to the district court for Douglas county. Tried below before Hopewell, J.</p> <p>cited: 1 Pai’sons, Contracts (6th Ed.), 70; Mechem, Agency, secs. 204, 207; Story, Agency, secs. 474-5; Buckeley v. Ket ellas, 6 N. Y., 348; Howard v. Bay, 61 Id., 368; Grant v. Moore, 29 Cal., 653; Smith v. JR. Co., 15 Neb., 583 — 6; Clark v. Gell, 17 Id., 286; Aultman v. Reams, 9 Id., 490; Ross v. Bang-worthy, 11 Id., 492; 2 Greenl., Ev., sec. 454; Cooley, Torts, 182; Abbott, Trial Brief, sec. 20.</p>

<p>Appeal from the. district court for Johnson county. Heard below before Broady, J.</p> <p>cited: Esty v. Snyder,, 41 111., 363; Mcllvoy v. Cochran, 3 Litt. (Ky.), 454; Cook v. Larkin, 19 La. Ann., 507; Pintará v. Tackington, 10 Johns. (N. Y.), 104* ; Baker v. Dwmbolton, Id., 240*.</p> <p>cited: Hale v. Christy, 8 Neb., 268; Stevenson v. Craig, 12 Id., 464 ; Cheney v. Cooper, 14 Id., 415; Herdman v. Marshall, 17 Id., 259.</p>

<p>Assignment: Novation not Proved. S. D. M. entered into a contract in writing with L. and B., whereby he agreed to sell and convey certain city lots in an addition to O., and they agreed to pay him therefor the sum of $1,800, as follows: $200 on the last payment of a certain house, and the balance at the rate of $50 per quarter, Commencing six months from the date of the contract, with interest at the rate of eight per cent per annum, payable quarterly. Afterwards L. and B. assigned their interest in said contract to M. E. B., S. D. M. ratifying the assignment in writing. Subsequently S. D. M. assigned said contract to J. L. M. and J. T. in writing on the back thereof, as follows: “Omaha, Neb., June24,1887. Assigned to J. L. M. and J. T., and payment guaranteed. S. D. M.” There being $291.21 due on said contract, J. S. M. and J. T. brought suit against S. D. M. upon the guaranty. The defense was a novation of said contract, by which J. L. M. and J. T. agreed to look to the assignees of M. E. B. for payment, and to release S. D. M. Upon the evidence, held, no proof of a novation.</p>

Tried below before Grope, J. cited: Code, secs. 99, 565; Shelton v. French, 33 Conn., 489; Wills v. Willets, 35 111., 88; Armstrong v. Spears, 18 Ohio St., 373. The rule excluding parol evidence applies only to the language of the contract; surrounding circumstances are proper to be considered in order to understand the intention of the parties.

<p>Bastardy: Death or Complainant: Revivor. L. M., an unmarried-woman, having made complaint, under the statute relating to illegitimate children, before a justice of the peace against C. K., who was arrested and brought before said justice; and she having been examined before said justice and her examination taken down in writing, after the birth of her illegitimate child; and said L. M. having died; the action was revived in the district court in the name of the county as plaintiff. Upon the trial the plaintiff offered in evidence the examination of L. M. before the justice, which was rejected. Held, Error.</p>

<p>Appeal from the district court for Douglas county Tried below before Grope, J.</p> <p>cited: Morrison v. Paxton, 17 Neb., 634; Foster v. Dohle, Id., 631.</p>

Ebeob to the district court for Douglas county. Tried below before Doane, J. The Pullman Palace Car Company is not liable either as a common carrier or asan innkeeper. {Blumv. Southern P. P. G Co., 1 Flippin [U. S.], 500; Pullman P. C. Co. v. Smith, 73- 111., 360; Woodruff S. & P. C. Co. v. Diehl, 84 Ind., 474; Clark v. Burns, 118 Mass., 275; Lewis v. N. Y. S. C. Co., 143 Id., 267; III. Cent.

<p>Error Proceedings: Failure to Commence in Time. Proceedings do reverse, vacate, or modify judgments of the district ■courts must he commenced in the supreme court within one year from the rendition of the final judgment (Code,.sec. 592), and if commenced after the period named, they may he dismissed on motion.</p>

<p>1. Officers: Illegal Fees: Joinder oe Causes. In an action to recover the penalty for taking illegal fees for making out and certifying to certain transcripts of judgments the testimony tended to show that eight of the transcripts were demanded at one time, and were received together and paid for in one sum, although separately itemized in the hill. Held, That an instruction which in effect directed the jury to find that there were eight separate causes of action was properly refused.</p> <p>2. -:-: Penal Statute. While an officer taking illegal fees is liable to the full penalty of the law, yet the statute, being highly penal in its nature, will not he extended by construction or implication beyond the clear import of its language.</p>

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

<p>1. Action Quia Timet. In an action by B. & D. to quiet the title to certain real estate in the city of Omaha it appeared that one H. had conveyed the land in 1857 to one M., with covenants of special warranty; that M. died during the war, and D. M. succeeded to his rights in the land ; that, in 1871, D. M. brought an action of ejectment against H. and recovered judgment; that the judgment was still in full force and that B. & D. possessed the title of D. M.: Held, That a decree quieting the title of B. & D. was fully sustained by the evidence.</p> <p>2. -: Verdict : Date oe Filing Omitted. That the failure of the clerk to mark the date of filing on the verdict of a jury will not prevent it from being introduced in evidence in a proper case.</p> <p>3. -. Held, That the decree was right and fully sustained by • the evidence.</p>

Heard below before Appelget, J. By using the west half of the highway the public retained its rights over the east half, though it did not use the latter for more than five years. (O’Dea v. State, 16 Neb., 242; Moore v. Roberts, 64 Wis., 538 [25 N. W. Rep., 564], The road having been used by the public for at least thirteen years, it will be presumed that it had been duly established by the commissioners.

<p>1. Sale: Delivery. A delivery of personal property by a vendor to a vendee may be actual or symbolical, but it must be by some act indicating a purpose to pass possession of the property, absolutely, to the vendee in order to entitle the vendee to maintain an action of replevin for its possession.</p> <p>2. -: Refusal to Deliver. In such ease where the vendor refuses to deliver the property in accordance with the terms of his contract of sale, the vendee’s remedy would be an action upon the contract for damages for failure to perform the contract of sale.</p> <p>3.--:--: Replevin Not the Remedy. Plaintiffs in error through their agent sold and agreed to deliver to defendant in error a bill of trees and shrubbery and received part payment therefor at the time of the contract. The delivery was to be made at a future day. On the day set for the delivery .of the property plaintiffs in error refused to deliver the same until the whole amount of the purchase price was paid by defendant in error. When defendant in error tendered the amount unpaid and replevined the property, it was held, that replevin would not lie.</p>

Heard below before Broady, J. Where complainant is guilty of an offense similar to that charged as the basis of the application, no relief can be given. (Mattox v. Mattox> 2 Ohio, 234; Wood v. Wood, 2 Paige [N. Y.], 108; Horne v. Horne, 72 N. Car., 530; Hall v. Hall, 4 Allen [Mass.], 39; Handy v. Handy, 124 Mass., 394; Nagel v. Nagel, 12 Mo., 53.) One guilty of a breach of the marriage vow cannot be allowed to cancel the marriage relation, or enforce rights growing out of it.

Error .to the district court for Douglas county. Tried below before Doane, J. The affidavit for attachment is insufficient and all subsequent proceedings were coram non judice, and void. (Drake on Attachment, sec. 487 et scq.; Greenwaultv.

<p>Error to the district court for Lancaster county. Tried below before Field, J.</p> <p>cited: Ridge-way v. Wharton, 6 H. L. Cas., 268; Lyman v. Robinson, 14 Allen [Mass.], 254; Methudy v. Ross, 10 Mo. App., 106; Brown v. N. F. C. R. Co., 44 N. Y., 86; Martin v. N. W. Fuel Co., 22 Fed. Rep., 596; Matthewson v. Burr, 6 Neb., 320; Severance v. Melich, 15 Id., 614; Housel v. Thrall, 18 Id., 488.</p>

Tried below before Hopewell, J. A servant assumes the ordinary risks of an employment, though it be a hazardous one. (Hayden v. Mfg. Co., 29 Conn., 558, and cases cited; 3 Wood, Railway Law, p. 1452.) As to the rule in the case of explosions: Rosee v. Buehanan, 51 N. Y., 476; Indiana, eta., R. Co. v. Toy, 91 111., 474; Columbus, eto.,R. Co., v. Arnold;, 31 Ind.,'174; Marshall v. Welwood, 38 N. J. L., 339; Green, ete., R. Co. v. Brcsmer, 97 Pa.

<p>Appeal from the district court for Cuming county. Heard below before Crawford, J.</p>

<p>1. Slander. The petition in an action of slander is examined, and held, to .state a cause of action.</p> <p>2. -: Words Actionable Per Se. Words falsely and maliciously spoken of a person, which impute the commission of some criminal offense, involving moral turpitude, for which the party, if the charge he true, may he indicted and punished hy law, are actionable per se, and no special damages need he alleged nor proved in order to maintain the action.</p>

<p>1. The Evidence examined, and held, to sustain the findings and decree of the district court.</p> <p>2. New Trial: Newly Discovered Evidence. A new trial will not be granted on the ground of newly discovered evidence where the evidence alleged to be newly discovered is merely cumulative to evidence given upon the trial.</p> <p>3. -: -: Case Stated. The defense having been predicated upon the alleged facts that the plaintiff had contracted to place twenty inches of concrete under a certain party wall and had only placed a footing of fourteen inches of concrete thereunder, and the defendant having at the trial called and examined witnesses, including himself, who testified to such facts in respect to the thickness of the concrete as put in, a motion for a new trial, upon a showing that since the trial defendant had discovered evidence that the said concrete footing was in fact only twelve and a half or thirteen inches thick, held, rightly refused.</p>

Tried below before Groff, J. The state had no right to proceed on mere information by the county attorney, and without preliminary examination. (4 Am. & Eng. Encyc. of. Law, 730; Cr. Code, secs. 286, 288, 300, 585; People v. Smith, 25 Mich., 497; People v. Chapman, 62 Id., 290; State v. Louver, 26 Neb., 757.) The caption of the complaint, or information, determines nothing.

Heard below before Doane, J. An injunction in a case of this kind will not be refused because the damage is slight, or because it entails expense and inconvenience to the aggressors. (Stockport Water Works v. Potter, 7 H. &N. [Eng.], 100; Clowes v. Stafford-shire Potteries Co., L. R. 8 Ch. App., 125; Goodson v. Richardson, 9 Id., 224; Wilts v. Swindon Water Works Co., 9 Ch. App., 451.) The pollution of streams cannot be adequately compensated for by damages.

<p>Interest: May be Recovered on Coupons. A gave a promissory note for §1,200, due in five years, secured by mortgage with interest at seven per cent, to B. Five coupon interest notes were given, each for $84, to draw interest at ten per cent from the time they became due. In an action to foreclose the mortgage, 1mid, that as the parties could agree upon any rate of interest not exceeding ten per cent, and as the interest on the coupons, together with the interest on the principal debt to the time it became due, did not exceed ten per cent, interest on the coupons could be recovered.</p>

<p>Real Estate: Option: Lease. In 1864 one H. leased for three years three and one-fifth acres of land in O. to S. at a yearly rental of $35, with the right to purchase for $1,6U0. S. thereupon took possession and erected two houses thereon, one for his own family and one for his foreman. He then removed his family into one of said houses and has resided there ever since. In 1873 a new lease was made by H. as executor, and also a “proposition to S. to purchase said premises” for $1,946, with twelve per cent interest, “ and what may be found due for taxes paid by me for 1864, ’65, ’66, ’67, >68, ’69, ’70, ’71, and interest at twelve per cent,” and stating that “this proposition is made to enable S. to acquire title to said premises as a homestead, and this option to purchase shall continue during the lease he now holds,” etc. A large amount of credits and moneys was paid by S. to H. on prior indebtedness, apparently on the contract. In 1878 a new lease was executed by H. as executor, under which S. continued in possession. Held, That the proposition to purchase remained opén to S. to be accepted at any time during the existence of his lease, and that the lease of 1878 was in effect but a continuation of that of 1873 and 1864, and that S., on payment of the amount due on the purchase, with twelve per cent interest, together with the amount of taxes with twelve per cent interest thereon, was entitled to a conveyance.</p>

Tried below before Morris, J. A married woman is still under disabilities. To charge her separate estate the debt must be contracted for her benefit and on the credit of such estate. (Yale v. Dederer, 18 N. Y., 265 [72 Am. Dec., 503]; Hale v. Christy, 8 Neb., 264; Savings Ban lev. Soott, 10 Id., 83; Barnumv. You/ng, Id., 309; Kan. Mfg.

<p>1. negotiable Instruments: Limitations. In an action to foreclose a mortgage on real estate there were five notes, each » for $60, due and payable in one, two, three, four, and five years. The notes were dated February 29,1876, and the summons in the action, served on the defendant, was dated February 9,1888. Seld, That in an action to foreclose the mortgage the notes continued as evidence of the debt for ten years from the time they each became due, and that only the first of the above notes was barred.</p> <p>3. -: Usury : Transfer. Certain notes given for grossly usurious interest, and secured by a secón d mortgage on real estate, were transferred to a bona fide holder for one-half of their face value, the claim of the purchaser being that the security might be inadequate. In an action by his executor to foreclose the mortgage, held, that the same rule would be applied as where the original consideration was wholly fraudulent, and the recovery would be restricted to the amount paid by the purchaser, with legal interest thereon.</p>

Tried below before Morris, J. The provision in the will directing that the real estate should descend-to the “legal heirs” was void in so far as it attempted to create an estate by purchase. Where a devise purports to give to an heir an estate which is precisely the same as the one he would inherit, he will take by descent and not by purchase.

Heard below before Broady, J. The German Baptist church has legal capacity to own the property described in the petition. (Trustees v. Froislie, 37 Minn., 447 [35 N. W- Rep., 260].) Seceders from a congregation part with their interest in the church property, and the latter belongs to the portion which adheres to the old doctrines, (Fernstler v. Seibert, 114 Pa. St., 196 [6 Atl.

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

Tried below before Broady, J. The amount claimed below being $75, was within the jurisdiction of the justice. (Code, secs. 906, 1103.) Hence, plaintiff below could not recover costs. (Code, sec. 621; Beach v. Cramer, 5 Neb., 98; Ray v. Mason, 6 Id., 101; Moore v. Darrow, 11 Id., 462; Rosenbaum v. Dunston, 16 Id., HI; Wilde v. Boldt, Id., 539.) Statutes providing for costs must be strictly construed.

<p>1. Partnership: Accounting : Reference. In an action to dissolve a partnership, and for an accounting, the case was referred to a referee, who made findings of fact and in favor of the plaintiff for a sum in excess of that claimed in the petition. Exceptions to the report were thereupon filed, which were overruled, but the judgment was reduced to the sum claimed in the petition with interest thereon. Held, No error.</p> <p>2. Report and judgment fully sustained by the evidence.</p>

Tried below before Marshall, J. Municipal corporations are not insurers against accidents. (Chicago v. McGiven, 78 111., 852; 'Atohison v. Jensen, 21 Kan., 575.) Injury alone is not a sufficient ground of recovery; it must be shown that the walk was dangerous, and that plaintiff in error had notice. (City of York v. Spellman, 19 Neb., 357; City of Plattsmouth v. Mitchell, 20 Id., 228.) Defendant in error was guilty of contributory negligence and cannot recover.

<p>Appeal from the district court for Fillmore county. Tried below before Morris, J.</p>

<p>1. Findings: Essential to Validity oe Judgment. In all actions tried by the court, there must be a general finding, and, when requested by one of the parties, a /special finding ; and if this finding be vague, uncertain, or indefinite, it will not sustain a judgment, (bpriclcv. Washington Co., 3 Neb., 253.</p> <p>2. -: -. Issues properly presented to a trial court must be decided either by finding by the court or verdict of the jury before a judgment can be rendered.</p>

Tried below before Marshall, J. As Billeter and the engineer were in the same employment, for a common purpose, requiring the co-operation of both, they were fellow-servants, and even if the injury did result as charged, defendant in error cannot recover.

<p>Original application for mandamus.</p> <p>cited: 2 Joyce, Inj., 1304, 1305; 1 High, Inj. [2d Ed.], sec. 3; 2 Id., secs. 1247,1271, anjj citations; Slayton v. Hulings, 7 Ind., 144; Armstrong v. St. Louis, 3 Mo. App., 151; Page v. Mayor, 34 Md., 564; Fremont v. Orippen, 10 Cal., 211; Babcock v. Goodrich, 47 Cal., 508; Cal. P. B. Co. v. Cent. P. R. Go., Id., 531; Price y. Riverside, etc., Co., 56 Id., 434; People v. Judge, 1 Mich., 361; People, ex rel. La Grange, v. State Treasurer, 24 Id., 469 ; State v. Wright, 10 Nev., 175; State v. N. E. R. Co., 9 Rich. Law [S. Car.], 247; People v. Hilliard, 29 111., 413; Miller v. Mayor, 47 Ala., 163; Hilliard, Inj., secs. 1 — 5 ; 2 Kent Com., 546; N. W. Mut. Ins. Co. v. Hotel Co., 37 Wis., 125 ; Audenreil v. Phila. R. Co., 68 Pa. St., 375 ; 2 Story Eq. Jur. [13th Ed.], 873; People v. Canal Appraisers, 73 N. Y., 443.</p> <p>cited: Hides v. Michael, 15 Cal., 107; Cohen v. Gray, 70 Id., 85; 2 Daniel, Ch. Pr. [5th Ed.], 1666.</p>

Original action in nature of quo warranto. The supreme court has jurisdiction of the subject-matter and of the person of respondent. (Const., art. 5, sec. 2; State v. Allen, 5 Kan., 213; Stale v. Wilson, 30 Id., 661.) The statutory remedy by contest is merely cumulative. (Comp.

<p>Error to the district court for Cuming county. Tried below before Wakeley, J.</p> <p>cited: AtJcins v. Atkins, 9 Neb., 191 ' Frazer v. Miles, 10 Id., 113; Murphy v. Lyons, 19 Id., 689.</p> <p>cited: Miller v. Myers, 11 Neb., 474; McCreary v. Bratt, 9 Id., 122; Sullivan Sav. Inst. v. Clark, 12 Id., 578 ; Sandwich Mfg. Co. v. Shiley, 15 Id., 110; Gillespie v. Sawyer, Id., 536; State v. Graham, 21 Id., 355; Fulton v. Levy, Id., 478; Anderson v. Armstead, 69 111., 452; Foster v. Bettsworth, 37 la., 415; Eikenberry v. Edwards, 67 la., 14 [24 N. W. Rep., 570]; Pitcher v. Dove, 99 Ind., 175; Vaughn v. Sheridan, 50 Mich., 155; Gardner v. Warren, &2 Id., 309; Hornv. Cole, 51 N. H., 287; Stevens v. Dennott, Id., 324; Storrs v. Barker, 6 Johns. Ch. [N. Y.], 166; Voorhees v. Olmstead, 3 Hun [N. Y.], 744; Phyfe v. Riley, 15 Wend. [N. Y.], 248; Continental Bank v. National Bank, 50 N. Y., 575; Blair v. Wait, 69 N. Y., 113; Kuhl v. Mayor, 23 N. J. Eq., 84; Mill v. Pay son, 3 Mass., 560; Parsons v. Wells, 17 Mass., 419; Clark v. Coolidge, 8 Kan., 189; Waterson v. Rogers, 21 Id., 529; Rudd v. Matthews, 79 Ky., 479; Rice v. Bunce, 49 Mo., 231; Gillett v. Eaton, 6 Wis., 30; Tollman v. Ely, Id., 244; Stark v. Brown, 12 Id., 572; Racine Co. Bank v. Lathrop, Id., 466; Chynoweth v. Tenney, 10 Id., 397 *; Hennessey v. Farrell, 20 Id., 46; Morgan v. R. Co., 96 U. S., 716; Dickerson v. Col-grove, 100 Id., 578; Quick v. Milligan, 9 N. E. Rep., 393; Beidman v. Goodell, 9 N. W. Rep. [Ia.], 900; Clark v. Ralls, 24 Id., 567; Nichols v. Schaffer, 30 N. W. Rep. [Mich.], 383; 2 Pomeroy, Eq. Jur., see. 802; Herman, Estoppel, 1053.</p>

Tried below, before Crawford, J. Evidences of title, suck as patents, deeds, etc., were improperly received since no question of title can be litigated in this form of action.

Tried below before Broady, J. The guaranty was not an indorsement in the sense of cutting off the maker's defenses. (Lamorieux v. Hewitt, 5 Wend. [N. Y.], 307; Miller v. Carton, 2 Hill [N. Y.], 188; Snevily v. Ehel, 1 W. & S. [Pa.], 203; Cannon v. Norton, 14 Yt., 178; Andrews v. MeCoy, 41 Am. Dec., 72; Omaha Nat. Banh v. Wallcer, 5 Fed. Rep., 399; Trust Co. v. Nat. Banh, 101 U. S., 68.) One who takes paper as collateral security is not a bona fide holder for value.

Heard below before Wakeley, J. cited, on the question of the statute of limitations: Clew v. Traer, 57 la., 459 ; 115 U. S., 528 ; Laird v. Kilbourne, 70 Id., 83; ParJcer v. Kuhn, 21 Neb., 413; O’ Dell v. Burnham, 21 Wis., 562; Martin v. Smith, 1 Dill. [U. S.], 85. The only fact that appellant claims to have learned, which would take this case out of the statute, was as to the nature of the transfer to and by Mrs. Davis.

Heard below before Appelhet, J. Under sec. 4, subd. 1, chap. 79, Comp. Stats., a written petition was a jurisdictional requirement. (State, ex rel. Donovan, v. Palmer, 18 Neb., 644; Cowles v. School District S3, Id., 659.) So, also, is notice of time and place of changing boundaries. (Windsor v. McVeigh, 93 U. S., 274; 1 Herman, Estoppel, etc., p. 74.) The orders of a county-superintendent, who acts outside of his jurisdiction, are subject to collateral attack.

<p>1. Demurrer: Pleading Over: Waives Defects. Where there is a failure to state a material fact in.a petition and a demurrer thereto is overruled and the defendant answers the petition, to which answer a reply is made setting up facts which should have been stated in the petition and which, if alleged therein, would have made it sufficient to resist a demurrer, and the case without objection is tried upon the issues thus made, and judgment rendered for the plaintiff, it will be too late for the defendant to rely upon his demurrer. (Poitinger v. Garrison, 3 Neb., 221.) In other words, the pleadings taken together present the necessary facts to entitle the plaintiff to recover.</p> <p>2. Finding and judgment sustained by the clear weight of evidence.</p>

<p>1. Religious Societies: Disturbance: Information. An information against certain parties charging that at certain times and places they did “ willfully, maliciously and unlawfully interrupt, molest, and disturb a religious society, to-wit, 1 The Welsh Presbyterian church,’ and the members thereof while said members were met to perform the duties enjoined upon them and appertaining to them as members,” etc., is sufficient to sustain a conviction.</p> <p>2. -: Expulsion of Members. A church organization may make rules by which the admission and expulsion of its members are to be regulated and the members must conform to these rules. If, however, it has no rules on the subject, those of the common law prevail, and before a member can be expelled notice must be given him to answer the charge made against him and an opportunity offered to make his defense, and an order of expulsion without such notice and opportunity is void.</p>

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

<p>Appeal from the district court for Eillmore county. Heard below before Morris, J.</p> <p>cited Taylor v. Court-nay, 15 Neb., 199; Paulett v. Peabody, 3 Id., 196.</p>

• Error to the district court for Gage county. Tried below before Broady, J. cited, on the first assignment of error: 2 Benjamin on Sales (Corbin), 1016 — 17; on the eighth and fourteenth assignments : Code, secs. 29, 42; Mills v. Murfy, 1 Neb., 327 ; Kellogg v. Lavender, 9 Id., 419; Mattis v. Boggs, 19 Id., 698; Maxwell, PI. & Pr., 33; Bliss, Code PI., secs. 61, 62; on the thirteen^ assignment: Marhel v. Moudy, 11 Neb., 213, Kersonbroeh v. Martin, 1-2 Id., 376; City of…

<p>The Evidence examined and considered, and held, to sustain the verdict.</p>

Heard below before Norval, J. contended, inter alia: Courts of equity, even in the absence of a statute, will vacate a judgment on account of unavoidable casualty, etc. (Horn v. Queen, 4 Neb., 108 ; Douglas Co. v. Connell,15 Id., 617; Thompson v. Sharp, 17 Id., 71; Dringer v. Receiver, 8 Atl. Rep. [N. J.], 811; 2 Pomeroy, Eq.

<p>1. Personal Injuries: Contributory Negligence: Question of Fact. In an action lor damages for injury to the person from the fall of a scaffold erected to lay the brick walls of a building by masons or laborers, held, that the contributory negligence of the injured party is a question for the jury to decide under the facts in evidence.</p> <p>2. The Instructions of the court to the jury given and refused examined and considered, and held, rightly given and refused.</p> <p>3. The Evidence examined and considered, and held, to sustain the verdict.</p>

Tried below before Norris, J. While it is true that, under section 24 of the Code, the action should have been brought in the individual names of the partners, yet the mistake was one of form only, and the rights of defendants were in noway prejudiced. Moreover, a plea in abatement, not a motion to dismiss, is the proper remedy. (Smelt v. Knapp, 16 Neb., 53; Oilman v'.

<p>1. Statute of Limitations: Account Stated. An action was brought by A against B upon an account for threshing grain in the years 1879, 1881,1882. The action was brought in 1884, the. summons served on the defendant being dated March 22 of the latter year. Held, That as more than four years had elapsed the item for threshing in 1879 was barred by tbe statute of limitations.</p> <p>2. -: Conversion. In May, 1879, B loaned to A a boar of a valuable variety of swine upon a contract to return the same in ten or fifteen days, and pay a certain consideration for his use. A did not return the animal as he had promised, and in June following B requested that the animal be returned, which was not done, and A afterwards castrated and sold the animal. Held, That while B could waive the tort and set up his damages as a set-off to an action on contract, yet that the statute of limitations began to run from the time of the demand for a return of the animal in June, 1879.</p>

Tried below before Powers, J. Under sec. 17, eh. 32, Comp. Stats., a fraudulent conveyance is void only “as against the person so hindered, delayed, or defrauded.” There must ,be both an intent to defraud and a,n actual hindrance of creditors. (Aultman v. Heiney, 59 la., 654; Baldwin v. O’Laughlin, 28 Minn., 68; Rice v. Perry, 61 Me., 145; 8ellv. Bailey, 119 Ind., 51; Knight v. Glasseoclc, 51 Ark., 390; ■ Mason v. Pierron, 63 Wis., 239; Wait, Fraud. Conv., sec. 143.)

<p>Error to tbe district court for Gage county. Tried below before Broady, J.</p> <p>cited: Story, Eq„ Jur., 636; Willard, Eq. Jur., 337-8; Maxwell, PI. & Pr., 669; Davenport Plow Co. v. Mewis, 10 Neb., 321; Lee v. Gregory, 12 Id., 284; Traphagenv. Irwin, 18 Id., 199; Fassett v. Traber, 20 Ohio, 544.</p> <p>cited: McCreery v. Schaffer, 26. Neb., 173; Armitage v. Toll, 64 Mich., 412.</p>

<p>1. A motion to quash, a bill of exceptions will be effective only where there there has been a neglect to comply with the statutory requirements in making up the bill, or other like cause, and cannot be predicated on the failure to file a motion for a new trial.</p> <p>2. A motion for a new trial must be in writing, and must specify causes therefor, which are sufficient in law to authorize the granting of the same. An oral motion, or one in writing, in which no cause or causes for a new trial are assigned, will not justify the granting of a new trial, nor will the overruling of such a motion be sufficient to present errors of law to either the trial or reviewing court.</p> <p>3. A plea of tender in an answer is an admission that the amount tendered is due the plaintiff.</p> <p>4. Review: Conflicting Testduony. There being a direct conflict in the testimony, the matter was proper for the consideration and determination of a jury, and where the conflict is in oral testimony and involves the question of the credibility of the witnesses, the court ordinarily will not review such testimony.</p>

Heard below before Hamer, J. Where, as in this case, notes have been given but the ■ account is not adjusted, an itemized statement is not imperative, and the mechanics’ lien law should be liberally construed in order to give effect to its provisions. (Rogers v. Hotel Co.,.A Neb., 54; Manly v. (Downing, 15 Id., 637; Mfg.

<p>1. Appeal: Time: Bill oe Exceptions Not Essential. In order to bring a cause into this court by appeal, the appellant must, within six months from the date of the rendition of the judgment, or decree, or making of the final order appealed from, file with the clerk of this court a certified transcriptof the proceedings had in the cause in the court below. It is not essential to jurisdiction that such transcript should contain the depositions, testimony, or proofs offered in evidence in the lower court.</p> <p>2. -. The first clause of the syllabus in Jefferson Co. v. Saxon, 10 Neb., 14, is modified.</p> <p>3. -. A notice of appeal is not necessary to confer jurisdiction.</p>

Heard below before Field, J. Bona fide purchasers at a sale under the authority of a judgment not suspended by stay of proceedings, acquire rights which no subsequent reversal can impair.

<p>1. Pleading: New Matter. All new matters constituting an entire or partial defense to a cause of action must be pleaded.</p> <p>Ü. The cross-examination of a witness should be confined to tbe matter covered by tbe examination in chief.</p> <p>3. Trial: Evidence: Error. When tbe trial court sustains an objection to a question propounded to a witness on his examination in chief, tbe party desiring tbe evidence must offer to prove tbe facts sought to be elicited by tbe question in order to predicate error upon such ruling.</p> <p>•4. The Evidence examined, and held, to sustain the verdict.</p>

<p>1. Stoppage in Transitu. Where goods are sold on time the vendor cannot claim the right to stop said goods in transit without showing that the vendee is insolvent, and that the goods have not come into his actual or constructive possession.</p> <p>2. -. The attachment of such goods while in the possession of the carrier, by a general creditor of the vendee, does not destroy the right of stoppage in transitu.</p> <p>3. Supreme Court: Objections Not Raised Below. When there is no answer in the record brought to this court, but it appears that the cause was tried by both parties without objection, as though an answer had been filed denying the allegations of the petition, this court will treat the case in the same ■ way.</p>

<p>Í. Replevin: Right oh Possession Essential. In order to. maintain an action of replevin, the plaintiff must show such an interest in the property claimed as entitles him to its immediate possession.</p> <p>2. Landlord and Tenant: Lien. Where a tenant agrees to deliver to his landlord, as rent, a specified number of bushels of corn for each acre planted, and there is no agreement that the rent shall be paid out of the corn to be raised by the tenant, held, that the landlord has no lien upon the corn raised on the leased premises, and cannot maintain replevin against the tenant for any portion of such corn.</p>

<p>1. Statutes: Construction. When statutes are so clearly inconsistent with and repugnant to each other that both cannot be executed, the last in time prevails.</p> <p>2. Cities of First Class: Justices of the Peace. Cities of the first class are entitled to three justices of the peace, one to be elected from each of the three districts by the qualified electors of said district.</p> <p>3. Elections: Ballots: Wording. At an election held in the third district of the city of Lincoln for the election of a justice of the peace therein, ballots were cast designating the office “For justice of the peace for the First district,” and others were cast therein “For justice of the peace for the Third district,” held, that the words describing the district did not constitute a part of the legal designation of the office, and should be treated as surplusage.</p> <p>4. -: Imperfect Canvass: Mandamus. Where the board of canvassers of au election have canvassed but a portion of the returns and issued a certificate of election, mandamus will lie in a proper case to compel them to reassemble and canvass the returns correctly, and issue a certificate to the one found elected from the whole returns, notwithstanding the person to whom the certificate of election had been issued had qualified and entered upon the discharge of the duties of the office.</p>

<p>1. Fraudulent Conveyances. H. A. S. applied to K., J. & Co., wholesale dealers at O., to purchase goods, on credit, for the firms of S. & Co. at Neligh, and S. & Co. at Norfolk, and for the purpose of obtaining credit represented “that said firms were composed of his hoys ; that they were good boys; had some money; that he was behind them and was worth $25,000.“ Goods to the amount of $859.15 were, upon these representations, sold on credit, and shipped, part to S. & Co. at Neligh and part to S. & Co. at Norfolk. About the time the goods shipped to Neligh were received there, a copartnership was formed at that place, in the name and style of Shorey & Co., the only members of which were Mary P. S. and Ella M. S., the wife and daughter of H. A. S., which firm received the said goods in store and proceeded to sell them at retail. The goods shipped to Norfolk were received in store and put on sale at retail by J. L. S. & Co. of that place, a firm of which J. L. S., a son of H. A. S., was the sole member. H. A. S. was, in fact, never a partner in either of said firms and denied his liability. K., J. & Co. sued out an attachment, which on motion of defendants was discharged. On error, held, that the transaction was, in law, an assignment and disposition of said goods by the debtor firms, with intent to defraud their creditors.'</p>

Tried below beiore Powers, J. In Nebraska alimony was not a lien on real estate prior to May21,1883. (Swansenv.Swansen, 12Neb., 210; Brothertonv. Brotherton, 14 Id., 186.) Hence the decree of May 12, 1883, which sought to subject the fee to a lien for alimony, was void, that being the only relief asked for. (Fithian v. Monies, 43 Mo., 502; Wood v. Stanberry, 21 Ohio St., 142; Howev. MoGivern, 25 Wis., 525; Moore v. Edgefield, 32 Fed.

Tried below before Norris, J. The policy was an Iowa contract, and the laws of that state are as much a part of the policy as though printed on its face. The Nebraska statutes do not give the district court of Madison county jurisdiction, as the summons was served only on the local special agent of the company. [State Ins.

<p>Motion to dismiss.</p>

Tried below before Powers, J. Sec. 12, ch. 89a, Comp. Stats., does not seek to regulate the business of telegraph companies; it simply makes them liable for mistakes in transmitting messages, and does not conflict with the interstate commerce clause of the federal constitution. (Fuller v. R. Co., 31 la., 205; 17 Wall., 560; Johnson v. C. & P. Elevator Co., 7 S. C. Bep., 254; Pembina, eta., Co. v. Pennsylvania Co., 8 Id., 737; Smith v. Alabama, Id., 564; Morgan’s R. & 8.

<p>1. Default: Premature Judgment. Where a summons, issued by a j ustice of the peace, is made returnable at 10 o’clock A. M., and the defendant does not appear, the justice, before rendering judgment by default, must wait one hour — till 11 a. m., common time.</p> <p>2. -: -: Time: Common and Standard. If standard time is intended, the justice should so designate it in the summons. In the absence of proof to the contrary, the presumption is that common time was intended.</p>

<p>1. Action Quia Timet: Ejectment. When both parties to a suit by their pleadings claim title to the same tract of land and each asks to have his title quieted, it is too late after decree for the losing party to urge for the first time that the proper remedy was by an action of ejectment.</p> <p>2. - — . In an action quia timet, neither party is entitled to two trials.</p>

<p>1. Decree: Vacation: Grounds. The district court has no power to vacate or modify its own judgments or orders after the term at which said judgment or order was made, unless there exists at least one of the grounds mentioned in section 602 of the Code. Held, That the matters stated at length in the opinion were not sufficient to entitle the plaintiffs in error to a vacation of the decree.</p> <p>2. Cross-Petition: Notice. When a defendant in an action files his answer and cross-petition within the time fixed hy law, he is not required to give to the other parties to the suit any notice of the filing of such pleading.</p> <p>3. Judicial Sale: Notice by Publication. Where the first publication notice of a sheriff’s sale was made March 16, the last April 13, and the notice was published in every issue of the paper between the date of the first publication and April 16, the day of sale, held, sufficient.</p> <p>4. Foreign Corporations: Title to Real Estate. While section 1 of chapter 65 of the Laws of 1887 was in force, C. Aultman & Co., a foreign corporation, purchased real estate in this state at a judicial sale, held, that its title is valid against every one hut the state, and can he divested only hy proceedings brought by the state for that purpose.</p> <p>5. Error Proceedings: Equity Causes: Motion eor a New Trial Necessary. In order to review the proceedings in the trial of an equity cause by a petition in error, a motion for a new trial must be filed as in an action at.law.</p>

<p>Original application for appointment of receiver. Filed under provisions of sec. 14, ch. 37, Laws 1889.</p>

<p>Error to the district court for Colfax county. Tried below before Marshall, J.</p> <p>cited, as to the second assignment: Tiffany v. Nat. Bank, 18 Wall. [U. S.], 409; Barnet v. Banh, 98 U. S., 555 ; U. S. v. Chouteau, 102 Id., 611; Hubbell v. Gale, 3 Yt., 266; Colburn v. Bwett, 1 Mete. [Mass.], 235; U. B. v. Lathrop, 17 Johns., [N. Y.], 4; Teall v. Felton, 1 Comst. [N. Y.], 537 ; Ely v. Feck, 7 Conn., 239; Damson v. Champlin, Id., 244; Mo. Biv. Tel. Co. v. 1st Nat. Bk., 74 111., 217; Francisco v. Gilmore, 1 Bos. & P. [Eng.], 179 ; Woodgate v. Knatchbull, 2 T. R., 154; 1 Bl., Com., 86; 1 Kent, Com., 397 et seq.; as to the third assignment: Code, secs. 19, 62; McNamara, Nullities, sec. 6; Miller v. McLntyre, 6 Pet. [U. S.], 61; Bicard v. Davis, Id., 124; Holmes v. Trout, 7 Pet. [U. S.], 171; Johnston v. Dish Col., 1 Mackey [D. C.], 427; Hewitv. Penn. Bteel Co., 24 Eed. Rep., 370; Alexander v. Pendleton, 8 Cranch [U. S.], 462; Wright v. Hart, 44 Pa. St., 454; Trego v. Lewis, 58 Id., 463; Williams v. Bando'n, 10 Tex., 74; Wood v. Folsom, 42 N. H., 70; Gorman v. Judge, 27 Mich., 138; B. & M. B. Co. v. Lancaster Co., 4 Neb., 307; Clark v. O. & 8. W. B. Co., 5 Id., 318; McKeighan v. Hopkins, 19 Id., 33; Ala. Gt.Bo.B. Co. v. Smith, 81 Ala., 229; Holliday v. Jackson, 21 Mo. App., 660; as to the fourth assignment: Marshall v. Vicksburg, 15 Wall. [U. S.], 146; National Bank v. Johnson, 104 U. S., 271; Hinterminster v. 1st Nat. Bk., 64 N. Y., 212; as to the fifth assignment: Hogg v. Buffner, 1 Black [U. S.], 115 ; Gruber v. 1st Nat. Bk., 87 Pa. St., 465; Ln re Wild, 11 Blatchf. [U. S.], 243 ; Bhinkle v. 1st Nat. Bk., 22 Ohio St., -516; Wheelock v. Lee, 64 N. Y., 247; Howserv. Melcher, 40 Mich., 185'; Carpenter v. Vail, 36 Mich., 226; Lynch v. Merchants’ Nat. Bank, 22 W. Ya., 554.</p> <p>cited: Johnson v. Jones, 2 Neb., 136; Schuyler Nat. Bank v. Bollong, 24 Id., 825 ; U. S. Rev. Stats'., secs. 5197-8.</p>

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

Tried below before Hamer, J. The allegations of the petition are wholly insufficient to warrant the admission of any evidence tending to hold the bondsmen liable.

<p>1. General Denial: Affirmative Proof Not Admissible Under. Where the answer is a general denial, the issue presented by the pleadings is the truth of the allegations of the petition. Under such an issue affirmative proof in favor of the defendant cannot be received, and an instruction submitting such proof to the consideration of the jury is erroneous.</p> <p>' 2. Real Estate Agents: Contract of Employment. Where a landowner employs an agent to procure a purchaser for his real estate upon certain terms and conditions, the contract of employment need not be in writing.</p> <p>3, -: -. Upon the facts proved, held, that the plaintiff had performed the contract on his part and was entitled to recover.</p>

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

Tried below before Powers, J. The money sued for belonged to Brown county, not to Holt. (F., E. & M. V. JR. Co. v. Brown County, 18 Neb., 518.) A distinction is to be made between an irregular tax and one absolutely illegal. The tax in this case was illegal. (F., E. & M. V. R. Co. v. Brown County, supra.).

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

<p>Appeal from the district court for Lancaster county. Heard below before Field, J.</p> <p>cited : Ballou v. Black, 17 Neb., 398; Foster v. Bohle, Id., 633.</p> <p>cited.: Wallace v. Flierschman, 22 Neb., 204; Foessenecker v. Weatherby, 16 Id., 94.</p>

Tried below before Chapman, J. The testimony of defendant in error shows that the snow and not the opening caused him to fall; as this was a cause independent of the culpable defects in the sidewalk, the city was not liable.

<p>Error to the district court for Otoe county. Tried below before Chapman, J.</p> <p>cited: Smith v. Finney, 2 Neb., 145; Me Gann v. McLennan, 3 Id,, 27; Popev. Hooper, 6 Id., 178; Hansen v. Bergquist, 9 Id.; 277; Volland v. Wilcox, 17 Id., 50.</p> <p>cited : Garrison v. People, 6 Neb., 279; Gooh v. Moore, 100 N. Car., 279.</p>

<p>1. Error Proceedings: Dismissal. When all parties to a joint judgment have not been brought before a reviewing court in proceedings in- error, as either plaintiff or defendant, and no excuse is given for not doing so, the defendant may have the ease dismissed.</p> <p>2. -: Summons: Need Not be Served Within a Year. It is not necessary that a summons in error should be served within one year from the date of the rendition of the judgment sought to be reversed. If the summons that is served is issued within the year it is sufficient.</p>

Tried below before Gaslin, J. No foundation was laid for the admission of the indorsement by the treasurer of the Bridge Company, as he was not shown to have had the authority to make it. (Boone, Corporations, sec. 143; Jaelcson v. Campbell, 5 Wend. [N. Y.], 572 ; Knight v. Lang, 2 Abb. Pr. [N. Y.], 227.) The alteration casts a suspicion on the indorsement, and imposes on defendant in error the burden of proving that the same was made before maturity.

Obiginal application for mandamus. An instrument to be upheld as a statutory bond must comply with all material requirements of the statute. (Cutler v. Roberts, 7 Neb., 4; Gregory v. Cameron, Id., 414.) One of the requirements of the present law is that “ the ■ person against whom judgment may be rendered ” enter into an undertaking; and this law is substantially the same as that construed in Gregory v. Cameron.

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

Exceptions from the district court for Harlan county, Gaslin, J., presiding. Filed under the provisions of section 515, Criminal Code. The sentence must conform to the statute and its special requirements.

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

<p>Appeal from the district court for Hall county. Heard below before Tiffany, J.</p> <p>cited: Thompson v. Davenport, 9 B. & C., 78 [2 Smith’s Leading Cases, 377*]; North v. LaFlesh, 73 Wis., 520 [41 N. W. Rep., 633].</p>

<p>Counties : Actions Against : Claims. A cause of action against a county under the provisions of section 71 of the revenue act of 1869 is a claim against a county within the meaning of section 37 and chapter 18 of the Compiled Statutes, and no action can be maintained on such claim other than by presenting the same to the county board for audit and allowance. (Richardson Co. v. Hull, 24 Neb., 536.)</p>

<p>1. Rape: Assault to Commit: What Constitutes. To warrant a conviction for an assault with intent to commit a rape, the evidence must show, beyond a reasonable doubt, that the accused not only intended to have sexual intercourse with the prosecutrix, but that he intended to use whatever force might be necessary to overcome her resistance and accomplish his object.</p> <p>2. -: -: Evidence. Held, That the verdict is not sustained by the evidence.</p>

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

Tried below before Morris, J. A party may not willfully abandon his case, and, after dismissal in consequence thereof, have it reinstated on motion. Defendant in error’s attorneys had ample notice that the trial would be pushed, but refused to go near, and are thus guilty of laches. (Treutler v. Halligan, 86 111., 39; Swits v. Carver, 20 Id., 578 ; Nispel v. Wolff, 74 Id., 303.) Negligence of the attorney within the scope of his powers is that of the client.

Tried below before Harrison, J. The proceedings under the first information were a legal bar to trial under the amended information. (Const., art. I, sec. 12; Bishop, Criminal Law [5th Ed.], 1016 ; Wells, Res Adjudicata, p. 318; Whitmore v. State, 43 Ark., 274; State v. Ward, 48 Id., 36; People v. Webb, 38 Cal., 479; Weaver v. State, 4 Crim.

Tried below before Tiffany, J. The record must show affirmatively that all the requirements of the statute have been complied with. {People v. Saio, 3 Mich., 121; Gray v. Com’rs, 40 Id., 165; Williams v. Holmes, 2 Wis., 129*; Com’rs v. Muhlenbmker, 18 Kan., 132; Com’rs v. Guttler, 7 Ind., 6; McCabe v. Com’rs, 46 Ind., 382.) The county board is a tribunal of limited jurisdiction, and all facts necessary to authorize its action must appear of record. {Robinson v. Mathwiek, 5…

<p>1. Divorce: Adultery. On the evidence contained in the record, held, that the charge of adultery against the defendant was fully proved, while a like charge against the plaintiff was not sustained.</p> <p>2. Alimony: Grounds. In allowing alimony the court will consider the ability of the husband, the estate, if any, of the wife, and the situation of the parties, and will render such a decree as under the circumstances will be just and equitable.</p> <p>3. -. Decree for $20 per month alimony in addition to the homestead, held, to be excessive.</p> <p>4. Custody of child was, on the proof, properly given to the mother.</p>

<p>Error to the district court for Madison county. Tried below before Norris, J.</p> <p>cited, on the question of the abandonment of the premises: Dennison v. Phoenix Ins. Co., 52 la., 459; Sexton v. Hawk-eye Ins. Co., 69 Id., 101; Fesh v. Council Bluffs Ins. Co., 74 Id., 676; Snyder v. Fireman's Fund Ins. Co., 77 Id., 146; Keith v. Quincy Mut. F. Ins Co., 10 Allen [Mass.], 228; Ashworth v. Builders’ Mut. Ins. Co., 112 Mass., 422; Corrigan v. Conn. Fire Ins. Co., 122 Id., 298 ; Ditch v. Ins. Co., 136 Id., 491; Sleeper v. If. H. F. Ins. Co., 56 N. H., 401; Paine v. Agr. Ins. Co., 5 N. Y., 619; Herman v. Adriatic Ins. Co., 85 Id., 163; Whitney v. Black River Ins. Co., 9 Hun [N. Y.], 39; Barry v. Prescott Ins. Co., 35 Id., 601; Mina Ins. Co. v. Myers, 63 Ind., 238; Niagara F. Ins. Co. v. Drda, 19 111. App., 70; Cook v. Continental Ins. Co., 70 Mo., 610; Fitzgerald v. Conn. F. Ins. Co., 64 Wis., 463; Mina Ins. Co. v. Burns, 5 Ins. L. J., 69; Bennett v. Agr. Ins. Co., 12 Id., 569; 1 Wood, Fire Ins., 216, note.</p> <p>cited on the same point: Phoenix Ins. Co. v. Tucker, 92 111., 64; Stupetski v. Trcmsatlantio Ins. Co., 43 Mich., 373; Shackleton v. Sun Fire Office, 55 Id., 288; Laselle v. Hoboken F. Ins. Co., 43 N. J. L., 468; Cumins v. Agr. Ins. Co., 67 N. Y., 260; Whitney v. Black River Ins. Co., 72 N. Y., 117; Herman v. Merchants Ins. Co., 81 Id., 184; Woodruff v. Imperial Ins. Go., 83 Id., 133; Chandler v. Commerce F. Ins. Co., 88 Pa. St., 223; Franklin Ins. Co. v. Kepler, 95 Id., 492; Atlantic Ins. Co. v. Manning, 3 Colo., 224; Hartford Ins. Co. v. Smith, Id., 422; East Texas F. Ins. Co. v. Dyches, 56 Tex., 565; Williams v. Noy'th Ger. Ins. Co., 24 Fed. Rep., 625; Kelley v. Home Ins. Co., 2 Cent. Law J., 478.</p>

Heard below before Harrison, J. Appellee was a competing bidder for the contract, with full knowledge of the alleged disability of its successful competitor. It was guilty of gross laches in failing to assert its rights as a taxpayer in time, and is now estopped to do so. (Clark v. Dayton, 6 Neb., 192; Follmerv. Nuoholls County, Id., 204; Brown v, Merrioh County, 18 Id., 355; Task v. Adams, 10 Cush. [Mass.], 252; Chamberlain v. Lyndeborough, 23 Am. & Eng.

<p>Review. When a cause is submitted to this court without either a brief or oral argument, and no error appearing upon the face of the record, and the verdict not being against the evidence, the judgment will be affirmed.</p>

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