Volume 29 — Nebraska Reports

<p>Appeal from the district court for Buffalo county. Heard below before Grope, J.</p> <p>cited: C. & G. E. R. Go. v. Vosburgh, 45 111., 311; Donlin v. Eaegling, 80 Id., 608; Wolff v. McQavock, 29 "Wis., 290; School District v. Estes, 13 Neb., 52; Mercer v. Harris, 4 Id., 77; School District v. Randall, 5 Id., 408; Banister v. Patty, 35 Wis., 215.</p> <p>cited : School District v. Estes, 13 Neb., 52; Kdwell v. R. Co., 11 Gratt. [Va.], 676; Barker v. R. Co., 27 Vt., 766 ; Boody v. R. Co., 3 Blatchf. [U. S.], 25; Henegan v. U. S., 17 Ct. Cl., 275; C. & G. E. R. Co. v. Vosburgh, supra; Leavers v. Cleary, 75 111., 349 ; Nickerson v. R. Co., 17 Fed Rep., 408 ; Topliff v. Topliff, 122 U. S., 121; Nesbit v. R. Co., 2 Spears [S. Car.], 697*; Gallagher v. D. C., 19 Ct. CL, 564; Church v. Florence Iron Works, 45 N. J. L., 129; Norton ¶. Browne, 89 Ind., 333; Smith v. Bristol, 32 la., 24; McGrann v. R. Co., 29 Pa. St., 82; 33 Id., 530; Williams v. Fitsmaurice, 3 FI. & N. [Eng.], 844; Mellen v. Ford, 28 Fed. Rep., 639; W. U. R. Co. v. Swift, 75 111., 496; Leavenworth v. Rankin, 2 Kan., 357.</p>

<p>Private Writings: Notice to Produce: Evidence Aliunde. Where a party to an action desires to give evidence, dliuntle, of the existence or contents of a private writing which has been delivered to the adverse party, the better practice is to serve a timely notice upon such party, or his attorney, to produce the writing at the trial. But such notice may he dispensed with upon proof that such party has said that such writing has been lost or destroyed.</p>

Tried below before Powers, J. The fácts seem to warrant the conclusion that the plaintiff took the paper under circumstances showing bad faith on his part, and he cannot recover. (Johnson v. Way, 27 Ohio St., 374; Dobbins v. Oberman, 17 Neb., 163; Citizens Bank v. Ryman, 12 Id., 542.) In order to impeach the bonajides of defendant in error’s holding, it must be shown that he purchased the note with notice of its infirmities, which is not done here.

<p>Error to the district court for Red Willow county. Tried below before Cochran, J.</p> <p>The contentions and citations of counsel are the same as in Britton v. Boyer, 27 Neb.,. 522.</p>

Heard below before Wakeley, J. cited, on the point as to who is a bona fide purchaser: Temple v. Smith, 13 Neb., 514; Hoyt v. Schuyler, 19 Id., 657; Bolman v. Lucas, 22 Id., 814; as to implied and constructive notice: Sargeant v. Ingersoll, 7 Pa.

<p>Error to the district court for Frontier county. Tried below before Cochran, J.’</p> <p>cited: Search v. Miller, 9 Neb., 26; Philpott v. Newman, 11 Id., 299; Weltonv. Beltezore, 17 Id., 399; Code, secs. 199, 238.</p> <p>cited: Temple v. Smith, 13 Neb., 513; Smith v. Sands, 17 Id., 498; Meyer v. Stone, 21 Id., 717; Williams v. Eikenherry, 22 Id., 210; State, ex rel. Herslviser, v. Kinleaid, 23 Id., 641; Williamson v. Wachenheim, 12 N. W. Rep., 302; Nelson v. Smith, 28 111., 495; Harrison v. Jacquess, 29 Ind., 208; Chapel v. Clapp, 29 la., 191; McDonald v. Gaunt, 30 Kan., 693; Castro v. lilies, 22 Tex,, 479; Gardinier v. Otis, 13 Wis., 460*.</p>

Tried below before Marshall, J. The affidavits for a new trial were insufficient, as the evidence offered was merely cumulative, and a proper effort to obtain it in time for trial does not appear to have been made.

<p>1. Injunction: Action on Bond: Counter-Claim: Res Adju-DICATA. One S. leased to a lithographing company certain premises for the purpose of carrying on its business therein. The company commenced to put in a steam engine and to erect a smoke stack and steam pipe in order to operate its machinery by steam power. S. thereupon commenced an action to enjoin it from putting in the same, alleging injury to the building, his business, etc. A restraining order was obtained which was after-wards modified to allow the company to erect the smoke stack and steam pipe, put in the steam engine, and operate its machinery by steam, etc. The court also appointed a commissioner “ to see that no precaution or provision necessary to malge said smoke stack secure and safe shall be omitted.” After-wards S. dismissed the injunction suit. In an action by the company on the inj unction bond, S. ignoring the order in the injunction suit sought to set up the same fact, as a defense and for affirmative relief. JHeld, That all questions as to the right of the company to erect and maintain the things named were decided in the former action and that unless new facts were presented sufficient to entitle S. to relief he could recover nothing on his alleged counter-claim.</p>

Tried below before Gaslin, J. The time of delivery is limited by the terms of the written contract to June 10, 1888. The breach, if any, was complete on that day, and evidence to fix liability must be confined to that particular time.

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

<p>County Clerks: Duplicate Tax List: Fees Not Allowable For. The county clerk of a county under township organization is entitled to four cents per line for preparing the tax list, hut is not entitled to any compensation for the making of a duplicate.</p>

Tried below before Hamer, J. The land should not have been seized until the chattels were exhausted. (Code, 477; 1 Washburn, R. P. [3d Ed.], 4b6, n.) Sec. 483 of the Code requires the goods to be first exhausted, and is mandatory. (Goodman v. Boggs, 12 Neb., 18; Bartholomew v. Hook, 23 Cal., 279; Place v. Riley, 98 N. Y., 5.) Sullenger v. Buck, 22 Kan., 28, is based on a statute different from ours.

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

Heard below before Wakeley, J. The contracts were sent by appellees to Crew, as their agent, and they cannot now question his action as against appellants who acted in good faith. (Garland v. Wells, 15 Neb., 298; Webster v. Wray, 17 Id., 579.) They are bound by his apparent authority.

<p>Appeal and Error: Summons: Failure to Serve in Time. The transcript of the judgment of the district court was filed with the clerk of this court more than six months after the rendition of the judgment. A notice of appeal was issued and service accepted by the defendants, who made no general appearance. Sixteen months after the date of the judgment a petition in error was filed, and summons issued thereon, which was served on the defendants. Held, On objection being made, that the supreme court acquired no jurisdiction, and that the proceedings must be dismissed.</p>

Original application for a writ of habeas corpus. Where one is illegally arrested in one state and, by fraud, deceit, or other means, inveigled into another state, the latter acquires no jurisdiction over him. (Van Horn v. Mfg.

<p>Error to the district court for Cuming county. Tried below before Kinkaid, J.</p> <p>cited, as to the amendment of the transcript: Maxwell, PI. & Pr. [5th Ed.], 716; Fox v. Meaoham, 6 Neb., 534-5; Adams v. Thompson, 18 Id., 543-4.</p>

<p>Error to the district court for Saline county. Tried below before Morris, J.</p> <p>cited: Winona, etc., R. Co.v. Waldron, 88 Am. Deo., 100 [11 Minn., 515].</p> <p>cited: Yates v. Kinney, 25 Neb., 122; R. V. R. Co. v. Hayes, 13 Id., 489; Johnson v. Farrotte, 23 Id., 238 ; Boohwalter v. Lansing, Id., 201; Burrell v. Hart, 25 Id., 610; C.,K. & N. R. Co. v. Wiebe, Id., 542.</p>

Tried below before Field, J. The holdings in Smith v. Albany, 61 N. Y., 444, Long v. Boone, 36 Ind., 60, and Currie v. Seh. List, 35 Minn., 165, are not sustained by the weight of authority. Contracts like the one under discussion are but voidable at most, and then only for fraud and collusion, in the absence of which they will be enforced. (Mayor v. Muzzy, 33 Mich., 61; Albright v. Chester, 9 Rich. L. [S. Car.], 399; Junkins v. Seh. Dist., 39 Me., 222-; Geer v. Seh.

<p>Statutes: Amendment: Constitutionality: County Bonds. The act of the legislature, approved February 26,1889, amending the second division of section 25 of chapter 18 of the Compiled Statutes of 1887, relating to county buildings and offices, as amended by the act of March 31,1887, having been considered in the cases of State, ex rel., etc., v. Babeoclc, 23 Neb., 128, Fenton v. Yule, 27 Id., 758, Baird v. Todd, and Jameson v. Bielcson, Id., 782, and held valid and in force from its passage and not obnoxious to sections 11 and 15 of article 3 of the constitution of this state, held, that the seventy-five bonds of the denomination of 81,000 each, issued by the county of Adams and dated July 1,1889, for the purpose of erecting a court house and jail, are issued in. accordance with law and are valid, and that it is the duty of the county clerk to levy the tax for the payment of the annual interest and a sinking fund for the final redemption of the principal according to the tenor of the bonds, and for this purpose the relator will take his writ.</p>

<p>Error to the district court for Hall county. Tried below before Tiffany, J.</p> <p>cited: Wells, Eeplevin, sec. 178, p. 94; Ames v. Boom Qo., 8 Minn., 467 ; Burnham v. Doolittle, 14 Neb., 214; Carty v. Fenstemalcer, 14 O. St., 457.</p> <p>cited : Burnham v. Doolittle, 14 Neb., 214; Skinner v. Beynich, 10 Id., 323.</p>

Heard below before Wake ley, J. The real estate conveyed to Helen Livingston by Theodore and Thomas was charged with a trust, so far at least, as Thomas was concerned. (Perry on Trusts [3d Ed.], secs. 139, 144; 4 Kent [13th Ed.], 529; Puss v. Mebius, 16 Cal., 350; Merle v. Mathews, 26 Id., 455; Powell v. Mfg.

Error, to the district court for Lancaster county. Tried below before Field, J. The limitation clause in the policy is unreasonable and since a similar provision in a city charter has been held void (Foxworthy v. Hastings, 23 Neb., 772), this clause should not be enforced. (Mason v. Ins. Co., 39 N. Y., 46 ; Westchester F. Ins. Co. v. Lodge, 9 Ins. L. J. [Mich.], 909 ; Wilson v. State F. Ins. Co., 7 L. C. Jur., 283 ; May, Ins., sec. 478, n. 1).

<p>Error to the district court for Buffalo countv. Tried below before Hamer, J.</p>

<p>1. Malicious Prosecution: Right of Action : When Accrues. In a case of malicious prosecution the right of action accrues whenever the criminal prosecution is disposed of in such a manner that it cannot be revived, and the prosecutor, if he proceeds further, will be put to a new one. (Casebeer v. Drahoble, 13 Neb., 465 ; Casebeer r. Bice, 18 Id., 203.)</p> <p>2.--: Probable Cause. To entitle the plaintiff to recover in such an action he must prove a want of probable cause, malice of the defendant, and that the criminal prosecution is ended.</p> <p>3. -: -: Instructions. It is the duty of the court to instruct the jury what facts constitute probable cause, and it is error not to do so.</p> <p>4. -: -: Complainant: When Protected. Where a party before instituting a criminal prosecution makes a full, fair, and honest statement to the county attorney of all the facts bearing upon the guilt of the accused of which he has knowledge, or could have ascertained by reasonable diligence, and in good faith acts upon his advice, he cannot be held liable for malicious prosecution. If the party withholds from counsel any material facts, then such advice will not protect him.</p> <p>5. -. Palmer v. Keith, 16 Neb., 91, distinguished.</p>

<p>1. Elections: Cities of First Class : Councilmen : Vacancies. Where a vacancy occurs in the office of councilman in a city of the first class, less than thirty days prior to the annual city election, it cannot be filled at that election.</p> <p>2. Q,u.o Warranto: Information Must Show Relator’s Right. When an information is filed by a private person to oust the incumbent from an office and instate the relator therein, it must state facts showing the relator’s right to the office. (State v. Stein, 13 Neb., 529.)</p>

<p>Motion to dismiss.</p>

<p>Error to the district court for Johnson county. Tried below before Broady, J.</p> <p>cited: Bishop, Contracts [2d Ed.], secs. 745-7, 751-5; Davis v. Henry, 13 Neb., 497; Fereau v. Frederick, 17 Id., 117; Schofield v. Ford, 56 la., 370; Gerrish v. Glines, 56 N. H., 9; 1 Wait, E. & Pr., 904; Abbott, Tr. Ev., sec. 31, p. 406; Gillespie v. Brown, 16 Neb., 461; Yerger v. Ban, 56 la., 77; Peters v. Ham, 62 Id., 656 ; Ward v. Watson, 24 Neb., 592; Falcott v. Crippen, 18 N.W. Rep. [Mich.], 392; Standard Paper Co. v. Freie Press Co., 30 Id. [Wis.], 298; Crippen v. Fletcher, 23 Id., 56 [56 Mich., 386]; Chicago Lumber Co. v. Fisher, 18 Neb., 334; Collins v. Myers, 16 O., 547; Hoagland v. Van Etten, 22 Neb., 684; Grimes v. Canned, 23 Id., 191.</p> <p>cited: Brooks v. Dutcher, 22 Neb., 644; Bussell v. Bosenbaum, 24 Id., 769; Earle v. Burch, 21 Id., 703.</p>

<p>1. Bill of Exceptions: Essential on Review. In a record without pleadings in which it appeared from a journal entry of the judgment that the plaintiff’s cause of action arose from defendant’s live slock trespassing upon cultivated ground and the defendant’s answer an award of arbitrators, under the herd law, as a bar to the action, held, that a bill of exceptions exhibiting the evidence on which the j udgment was rendered was required to review it.</p> <p>2. -: Stipulation of Facts Insufficient. Where a, stipulation of facts between the parties to a trial in the district court is presented without a bill of exceptions, this court will not accept it as the whole of the evidence upon which the findings and judgment of the court below were predicated unless it is brought up on a proper bill of exceptions.</p>

<p>1. Replevin: Description of Property. The matter in dispute is whether or not two bay mares, named “Kit” and “ Jule,” were in controversy in an action of replevin, it being contended by the plaintiff that he never took possession of them, under the writ, and for that reason the defendant could not have a return thereof. Held, That although the mares in question were not described in the petition by the names stated, yet they were properly described therein as “two bay mares five years old.”</p> <p>2. Review: Trial to Court: Evidence. Where a jury is waived and the cause tried to the court, the objections to evidence will not be ground for the reversal of the judgment, provided the judgment is based on lawful and proper evidence.</p>

<p>Error to the district court for Cherry county. Tried below before Norris, J.</p> <p>cited: Wells, Replevin, sec. 651.</p> <p>cited: Bradwell v. Stubbert, 17 Neb., 488 ; Gurney v. Gwrney, 38 O. St., 658; Wells, Replevin, secs. 113, 115, 654; Sutro v. Hoile, 2 Neb., 191; TJhl v. JRau, 13 Id., 357; Seheble v. Jordan, 1 Pac. Rep., 121; Singer Mfg. Co. v. Sammons, 49 Wis., 316; Seeley v. Garey, 5 Atl. Rep., 666.</p>

Tried below before Norris, J. Defendants admit in the stipulation that they willfully entered upon plaintiff’s premises; hence they could acquire no rights to the bricks manufactured thereon. (2 Kent, Com., 363; Betts v. Lee, 5 Johns. [N. Y.], 348 [4 Am.

<p>Stare Decisis. The former decision in this case, reported in 27 Neb., 256, adhered to.</p>

<p>Error to the district court for Sarpy county. Tried - below before Groff, J.</p> <p>cited: Dubois v. Jackson, 49 111., 49; Tinkler v. Cox, 68 Id., 119 ; Beeves v. Webster, 71 Id., 307; Jasseyv. Delius, 65 Id., 469; Kahn v. Wood, 82 Id., 219; Humes v. Scruggs, 94 U. S., 27; Knowlton v.Mish, 17 Eed. Rep., 198; Bobinson v. Brem, 90 111., 353; Wilson v. Loomis, 55 Id., 352; Patton v. Gates, 67 Id., 165; Elijah v. Taylor, 37 Id., 247; Brown-ell v. Dixon, 27 Id., 197; Wortman v. Price, 47 Id., 24; Glover v. Alcott, 11 Mich., 478; Hallowell v. Horter, 35 Pa. St., 380; First Nat. Bank v. Bartlett, 8 Neb., 329; Lipscomb v. Lyon, 19 Id., 515.</p> <p>cited: Deck v. Smith, 12 Neb., 394; Broadwater v. Jacoby, 19 Id., 80.</p>

<p>Real Estate: Contract : Rescission : Fraud Not Shown. M. J. C. held a quarter section of land in Nebraska, mortgaged for $100, -which she deeded to J. E. L. in exchange for an improved lot in Collins’s addition to Denver, employing J. C. K., an attorney, and certain real estate agents, who negotiated the exchange, and also a loan of $225 on the Denver lot on deed of trust, under which the lot was subsequently sold. C., being without land or lot, brought her bill against L. and K., setting up her own mental disability to contract, and conspiracy by defendants to defraud her of the land, praying that the title be restored, and not offering to restore the lot. The court, finding that there was neither conspiracy nor acts of fraud, confirmed the title in J. E. L. Held, on examination of the evidence, that it was amply sufficient to sustain the findings and judgment of the district court.</p>

Tried below before Groff, J. on the point that the reversal of the judgment entitled plaintiff in error to an order of restitution from the district court, cited: Freeman, Judgments, sec. 481, 482; Reynolds v. Harris, 14 Cal., 667; Rolaeh v. Shafer, 46 IcL, 275; Ranh v. Ranh, 6 Pet. [U. S.], 19; Delano v. Wilde, 11 Gray [Mass.], 17 ; Flemings v. Riddick, 5 Gratt. [Va.], 272 [50 Am.

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

Heard below before Norris, J. The reason for the rule which allows adverse possession to ripen into title is not the merit of the occupant’s claim, but the bad policy of permitting lauds to lie uncultivated.

<p>Appeal from the district court for Wayne county. Heard below before Norris, J.</p> <p>cited on the question of adverse possession: Harvey v. Tyler, 2 Wall. [U. S.], 328; Linh v. Doerfer, 42 Wis., 391; Colvin v. JR. V. Land Ass’n, 23 Neb., 80; Washburn v. Cutter, 17 Minn., 361; Gatling v. Lane, 17 Neb., 80; Haywood v. Thomas, Id., 237; Gue v. Jones, 25 Neb., 634; Heaton v. Fryberger, 38 la., 185 ; Angelí, Limitations, sec. 384; Buswell, Limitations, sec. 227.</p> <p>cited on the question of jurisdiction: Gregory v. Bank, 16 Neb., 411; Snowden v. Tyler, 21 Id., 199; Horn v. Miller, 20 Id., 99 (dissenting opinion and cases cited); Sloan, v. Sloan, 5 South. Rep. [Fla.], 603; Evans v. Schafer, 21 N. E. Rep., 448 ; Wyland v. Mendel, 37 N. W. Rep.. [Ia.], 160. On the question of adverse possession: Gatling v. Lane, and Haywood v. Thomas, supra; Clapp v. Bromagham, 9 Cow. [N. Y.], 530; Whitney v. Wright, 15 Wend. [N. Y.], 171; Fosgate v. Herkimer Mfg. Co., 12 Barb. [N. Y.], 352; Jackson v. Johnson, 5 Cow. [N. Y.], 74; Jackson v. Barcl, 4 Johns. [N. Y.], 230; Briggs v. Prosser, 14 Wend. [N. Y.], 227; Montgomery Co. v. Severson, 64 la., 326; Cooper v. Morris, 7 Atl. Rep. [N. J.], 427; Jackson v. Camp, 1 Cow. [N. Y.], 610; Sherry v. Freaking, 4 Duer [N. Y.], 452; Jackson v.Warford, 7 Wend. [N. Y.], 62; Finlay v. Cook, 54 Barb. [N. Y.], 9; McMillan v. Wehle, 13 N. W. Rep. [Wis.], 694; Probst v. Church, 129 U. S., 191; Hacker v. Horlemus,él N. W. Rep. [Wis.], 965; Jackson v. Wheat, 18 Johns. [N. Y.], 44; Smith v. Lorillard, 10 Id., 356; LaFrambois v. Jackson, 8 Cow. [N. Y.], 611; Humbert v. Trinity Church, 24 Wend. [N. Y.], 604; Baldwin v. Ratcliff, 17 N. E. Rep. [111.], 794; McConnell v. McCotinell, 64 N. C., 342; 1 Am. &Eng. Encyc. Law, 255, 274, 277, 279, 290, 292; Hassett v. Ridgley, 49 111., 201; Booth v. Small, 25 la., 177; Clancey v. Houdlette, 39 Me., 451; Corning v. Troy Iron Wlcs., 44 N. Y., 577 ; Murphy v. Hoyle, 33 N. W. Rep. [Minn.], 220; Simpson v. Downing, 23 Wend., 322; Paine r. Hutchins, 49 Yt., 314; Miller v. R. Co., 71 N. Y., 380; Gage v. Hampton, 127 111., 87 [S. C., 20 N. E. Rep., 13]; Kelly v. McKeon, 31 N. W. Rep., 325, note, 326; Bates v. Campbell, 25 Wis., 613; Hart v. Bloomfield, 5 So. Rep. [Miss.], 620; Stettwisohe v. Lamb, 18 Neb., 626; MoNeely v. Lang an, 22 O. S., 32; Mansion v. Lowe, 43 Ala., 271; Tex v. Pflug, 24 Neb., 666; Levi v. Yerga, 25 Id., 766 ; Trussel v. Lewis, 13 Id., 417; Murray v. Hudson, 32 N. W. Rep. [Mich.], 891; Turner v. Stevenson, 40 Id. [Mich.], 735 ; Brobst v. Brook, 10 Wall. [U. S.], 519; Forey v. Bigelow, 56 la., 381; Clement v. Perry, 34 Id., 564; Mooney v. Cooledge, 30 Ark., 655; Kerr v. Hitt, 75 111., 57; McQuiddy v. Ware, 20 Wall. [U. S.], 14; Key v. Jennings, 66 Mo., 356; Samuels v. Borrowsoale, 104 Mass., 207 ; Coleman v. Billings, 89 111., 183; Leeper v. Baker, 68 Mo., 400; Stephens v. Leaoh, 19 Pa. St., 262; Barrett v. Stradl, 41 N. W Rep. [ Wis.], 442; Lessee of Smith v. Trabue’s Pleirs, 1 McLean [IT. S.], 87; MeCagg v. Heaoook, 42 111., 157; Ewing v. Burnet, 11 Pet. [IT. S.], 41; Wright v. Mattison, 18 How. [U. S.], 50; Barrett v. Love, 48 la., 103; Shawler v. Johnson, 52 Id., 473; Clark v. Thompson, 37 Id., 536; Hintrager v. Hennessy, 46 Id., 600; Housel v. Boggs, 17 Neb., 96 ; Meade v. Gilfoyle, 24 Id., 413.</p>

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

<p>1. Banks; Checks: Dishonor: Diligence. L. & S., residents of V., in this state, on Friday, November 16, sent by mail a cheek on a bank at Y. to M. B. & Co. at O., Neb. This was received ■ by M. B.. & Co. on .the next day. The payee on the same day endorsed the check and delivered it to the Nebraska National Bank at O., which, on the same day, transmitted the same by mail to the hank at Y., on which it was drawn, for payment. On Tuesday, November 20, the bank at Y., in payment of the ■ . cheek, sent a worthless draft to the bank at O., which the latter . refused to receive, and on the same day notified M. B. & Co. of • that fact, and on the next day notified L. & S. The testimony showed that the bank at Y. was in a failing condition when L. & S. drew and sent the check on it and that they stated that fact ‘ to M. B. & Go. in the letter transmitting the check. In an action against the drawers they demurred to the petition. Reid, . That if the facts stated in the petition were true, the Nebraska National Bank had shown due diligence and was entitled to recover.</p> <p>2. -: -: Negligence: Pleading. The facts as to the alleged neglect of the Nebraska National Bank in the selection of the payee of the check, as its agent for the collection of the same, should be set up by answer, and do not appear from the statement in the petition in such a manner as to defeat a recoTery.</p>

Tried below before Norris, J. cited as to the burden of proof of jurisdictional facts: Felton v. Drummond, 21 Neb., 495; State v. Hanlan, 24 Id., 608. . cited on the same point: State v. Weber, 20 Neb., 467; Steinkrause v. Hurlbert, Id., 520; State v. Hanlan, supra.

<p>1. Schools: License Money: Distribution. Where a portion of more than one school district is within the limits of an incorporated village, the moneys received by its corporate authorities for liquor licenses will be equally divided between such districts.</p> <p>2.--: -: Village Treasurer: Mandamus. When such moneys have been received by the village treasurer, who, upon demand, refuses to pay the amount belonging to the district entitled thereto, such district may by mandamus compel him to pay the same.</p>

<p>Error to the district court for Furnas county. Tried ■below before Cochran, J.</p> <p>No briefs filed.</p>

Tried - below before Gaslin, J. As defendant once had possession,’though he afterward parted with it, replevin is the proper remedy.

<p>1. ^Negotiable Instruments: Indorsement as Collateral; Action by Pledgor. In an action by J. H. C. against A. B. J. and H. P. J., the cause of action set out in the petition was a a promissory note executed and delivered by defendants to plaintiff. The answer of defendants alleged that prior to the commencement of the action the plaintiff was indebted to T. &B. in a sum greater than the sum due on said note, and that plaintiff, to secure said sum to T. & B., indorsed the said note in blank and delivered it to T. & B. as collateral security for his said indebtedness, and that at the time of the commencement of the action the note still remained in the hands of T. & B. as collateral seeurifcy for said indebtedness, and that defendants were duly notified thereof. A general demurrer to the answer was sustained. Held, Error. '</p> <p>2. -: Consideration: Diseased Animals: In the action above described defendants also answered as a second defense that the note sued on was given plaintiff by defendants for the purchase price of a certain horse bought by defendants of the plaintiff; that said horse was at the time affected with the glanders, an infectious and contagious disease, as the plaintiff well knew, and the defendants did not know, etc. A general demurrer to this defense was sustained. Held, Error.</p>

<p>Mortgage: Land Contract Treated As: Foreclosure; Stay. In an action brought on a land contract, in the prayer of the petition such contract was treated as a mortgage; in the answer of defendant said contract was alleged to have been executed and delivered as a mortgage, and the judgment was both in form and substance a decree of foreclosure and sale of mortgaged premises. Held, That a stay of the execution of said judgment upon the request of defendants, without bond, would be upheld as that of a mortgage.</p>

. Heard below before Wake let, J. Under the law in force in 1879 (the year when the waiver is alleged to have occurred) the husband alone could not waive the homestead right. ([IBubbell v. Canady, 58-111., 425; Bonorden v. Kin, 13 Neb., 121; Beecher v. Baldy, 7 Mich., 506; Amphlett v. Hibbard, 29 Mich., 298; Herron v. Knapp, 40 N. W. Rep. [Wis.], 149.) The fact that husband and wife are not living together does not change the rule.

<p>Error to the district court for Douglas county. Tried below before Hopewell, J.</p> <p>cited: Barlass v. Braasch, 27 Neb., 212; Bernstien v. Brown, 23 Id., 64.</p>

Heard below before Chapman, J. The written agreement is a declaration of trust signed by Carter as settlor, and by Gibson as trustee. (1 Perry, Trusts, sec. 260; 1 Lewin, Trusts, [8th Ed.], 200; 2 Story, Eq. Jur., sec. 964; Field v. Arrowsmith, 3 Humph. [Tenn.], 442; Flint v. Clinton, 12 N. H., 432.) There is always a strong presumption of acceptance of a trust. (Furman v. Fisher, 4 Coldw. [Tenn.], 626.) The instrument constituted an express, executory trust.

<p>1. Removal of Causes: Mortgages : Foreclosure. In an action brought by a citizen of Wisconsin in the district court of Madison county, to foreclose three real estate mortgages, the mortgagors and all parties holding judgment liens against the mortgaged premises were made defendants. M. F. & Co., hav* ing a judgment lien, filed an answer in the nature of a creditor’s bill, setting up that the mortgagors were insolvent and that the mortgages and two certain judgments which were apparent liens on the land, were each given without consideration and for the sole purpose of defrauding M. F. & Co. Held, That there was in the suit a separable controversy wholly between citizens of different states and that the cause was removable on the application of M. F. & Co., under the third clause of sec. 2 of the removal act of March 3,1887.</p> <p>2. -. That the order of removal made in the cause, to transfer the entire suit to the federal court, was proper.</p>

<p>1. Elections: Ballots: Superfluous Names. Ballots cast at an election for justice of the peace in the Third district of the city of Lincoln containing the names of three persons, when but one person is to be elected to that office, are, under sec. 40, chap. 26, Compiled Statutes, void, and cannot be counted for any one for that office.</p> <p>2. -: -: Extrinsic evidence cannot be received to explain or contradict such a ballot.</p> <p>3. -: -: Wording. Ballots cast in said district for P. for the office of justice of the peace are not invalidated as to him because they also contain the name of B. “For justice of the peace of the First district” and that of C. “For justice of the peace of the Second district.”</p>

<p>Schools: License Money: Distribution. Money received for liquor license, issued by a county board, belongs exclusively to the support of the common schools of the county in which the license was issued, and nob to the school district in which the liquors are sold.</p>

<p>1. Veterinary Surgeon: Professional Skill : Liability. A veterinary surgeon, in the absence of a special contract, engages to use such reasonable skill, diligence, and attention as may be ordinarily expected of persons in that profession. He does not undertake to use the highest degree of skill, nor an extraordinary amount of diligence. In other words, the care and diligence required are such as a careful and trustworthy man would be expected to exercise.</p> <p>2. -: -: -. Held, That the petition fails to state a cause of action.</p>

Tried below before Hamer, J. The instruction is erroneous because it is not based on the evidence (Ndhardt v. Kilmer, 12 Neb., 38; Oity of Crete v. Childs, 11 Id., 257); also, because it raises the issue •of accord and satisfaction, which was not pleaded. (Boone, Code Pleading, sec. 67; Piercy v. Sabin, 10 Cal., 30; Berdell v. Bissell, 6 Colo., 162.)

<p>Error to the district court for Cedar county. Tried below before Norris, J.</p> <p>cited : Code, sec. 985 ; Comp. Stats., ch. 20, sec. 26 ; Bode v. Welch, 29 O. St., 19; Harrington v. Heath, 15 O., 483; Yale v. Edgerton, 11 Minn., 184; Papke v. Papke, 30 Id., 260; Minneapolis Harvester Works v. Hedges, 11 Neb., 46; Whiter. Merriam, 16 Id., 96.</p>

<p>Error to the district court for Merrick county. Tried below before Marshall, J.</p> <p>cited: Field, Damages, pp. 476, 483-4; Cooley, Torts, pp. 167, 313-14; 2 Greenleaf, Ev., sec. 95; Stetlar v. Nellis, 60 Barb. [N. Y.], 525.</p> <p>cited: Cooley, Torts, 193-5; Field, Damages, 483; Fosbmder v. Svitka, 16 Neb., 499.</p>

<p>1. Summons: Defective Service: Objections too General. A defendant who appears in a ease to object to the jurisdiction of the court over him by reason of defective service of summons must point out specifically the defects complained of, and an objection “that no certified copy of the summons therein has been served on the defendant as required by law “ is too general to be available. (Freeman v. Buries, 16 Neb., 328).</p> <p>. 2. Technical Error: Party Alleging, Must Be Free From. A party who alleges error by reason of a technical defect in the proceedings must himself be free from a like fault when he invokes the action of the court to correct the error.</p>

Tried below before Gaslin, J. cited, in support of the contention that the portion of subdivision 58 which seeks to exempt the city from liability is unconstitutional: Holmberg v. Hauch, 16 Neb., 337; Boggs v. Washington Co., 10 Id., 297; Tecumseh v. Phillips, 5 Id., 305; State v. Lancaster Co., 6 Id., 474; Messenger v. State, 25 'Id., 674; White v. -City of Lincoln, 5 Id., 516; Lves v. Norris, 13 Id., 252; City of Lincoln v. Walker, 18 Id., 249; People v. Mahany, 13 Mich.,…

Tried below before Doane, J. The sum fixed was a penalty (1) because the damages could be easily ascertained (1 Sutherland, Damages, 508 ; 2 Greenleaf, Ev. [14th Ed.], 267; Wilous v. Kling, 87 111., 107; Noyes v. Phillips, 60 N. Y., 408; Duttaghan v. Fitch, 42 Wis., 679; Watts v. Camors, 115 U. S., 353; Lansing v. Dodd, 45 N. J. L., 525 ; Shreve v. Brereton, 51 Pa.

<p>1. Assignment for Creditors: Omissions. One W. P. R., who was engaged in the mercantile business, and being unable to pay his debts, promptly assigned his property to J. E. R. and C. C., who signed his notes in favor of his creditors for about $3,000. The assignment provided that J. E. R. and C. C., jointly with a person to be named by the creditors, should “run and close out said store and collect said notes and accounts to the best advantage for the benefit of my creditors,” etc. (naming certain persons). The testimony shows that the intention was to include all creditors of W. P. R. and the contract was accepted by such as were known, but through mistake three were omitted. On a petition being filed by one of the omitted creditors for a receiver and other relief, and all parties being before the court, held, that all creditors, including those omitted in the conveyance of W. F. R. to J. E. R. and C. C.,were entitled to be paid in equal proportions.</p> <p>2. -. The question of the validity of the conveyance does not arise in the case.</p>

<p>Appeal from the district court for Gage county. Heard ■below before Broady, J.</p> <p>cited as to the want of •of notice: Code, secs. 602-4; Pringle v. Dunn, 39 Wis., 435; Williams v. Williams, 13 N. W. Rep. [Wis.], 274; DLettrich v. Wilson, 12 O. St., 136 ; Wright v. Sweet, 10 Neb., 192; Brown v. Edgerton, 14 Id., 454.</p>

- Error to the district court for Seward county. Tried below before Norval, J.- The guaranty was not an indorsement, as that term is used in the law merchant. (Trust Co. v. Nat’l Bank, 101 IT. S., 68 ; Snevily v. Ekel, 1 Watts & S. [Pa.], 203; Lamourieux v. Hewitt, 5 Wend. [N. Y.], 307 ; Miller v. Gaston, 2 Hill [N. Y.], 188.) The description in the chattel mortgage was insufficient.

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

Original application for mandamus. An act requiring railroads to maintain suitable crossings falls within the general police power of the state.

<p>Appeal: County Judge: Failure to Prepare Transcript. On September 4, 1888, judgment was rendered against the plaintiffs in error in the county court of K. county, and four days later they filed an appeal bond and demanded of the county judge a transcript, for the purpose of taking an appeal. Through the neglect of the county judge the transcript was not prepared until October 11, and on the same day it was filed in the district court and the appeal docketed. The appellants made a showing of diligence, and that the delay in taking the appeal was caused solely by the failure of the judge to make the transcript at the proper time. On motion of the appellees the appeal was dismissed. Held, Error.</p>

<p>1. Justice of the Peace: Docket Entries: Clerical Mistake Not Reversible Error. Where a justice of the peace •in a case tried before him to a jury enters judgment on the verdict actually returned for the amount therein stated, it will not be reversed because of a clerical error in transcribing the verdict in his docket.</p> <p>2. -: -: -. In a cause pending before a justice of the peace, by agreement of parties on May 18, the trial was continued to May 25, and a jury was selected to appear on the latter date. Without any further date being noted on the docket, the entry shows that the parties and jurors .appeared, cause tried, verdict rendered, and judgment entered thereon. Held, Sufficient to show that the trial was had on the date to which the case was last adjourned.</p>

<p>1. Bills of Exceptions: Omissions of Evidence : Judge’s Certificate Not Conclusive. The certificate of the trial judge attached to a hill of exceptions, to the effect that it contains all the evidence used on the trial, will not he taken as conclusive. where ib appears on the face of the bill that material evidence has been omitted. (M. P. B. B. Go. v. Hays, 15 Neb., 224.)</p> <p>2. Husband and Wife: Joint Business : Property : Ownership : Presumption. In this state a married woman may own property and carry on trade or business on her sole and separate account, and there is no presumption of law that personal property in the possession of the wife while living with her husband belongs to the husband.</p> <p>3. -: -: -: -: Estoppel. A husband and wife were in charge of a millinery store in the city of C. The plaintiffs sold goods on credit to the wife on the representations of the husband that she was the owner of the business. L., S. & Co. and B., T.,W. & Co., not knowing of said representations, or that the wife claimed to own the business, sold on time goods to the husband, which went into the store. Afterwards, the husband absconded and the wile gave the plaintiffs a chattel mortgage on the stock to secure the balance of their claim, and the mortgagee took possession thereunder. L., S. & Co. and B., T., W. & Co. shortly afterwards attached the goods as the property of the husband. Held, In an action by the mortgagee against the sheriff for conversion, that the representations of the husband made to the plaintiff do not estop the officer from showing that the husband was the owner of the property when the mortgage was given.</p> <p>4. Amended Pleadings : Costs. The taxation of costs, as terms for filing amended pleadings, rests in the discretion of the trial court.</p>

<p>Final Order: Ruling on Plea to Jurisdiction is Not. The overruling by the district court of an objection made to its jurisdiction is not a final order, and a petition in error cannot be prosecuted therefrom before final judgment in the action.</p>

<p>1. Banks: Deposits: Mistake. One A. S. on September 25,1886, drew a check for $340.25 on a bank, which check was duly paid, but by mistake charged to the account of D. S. Soon after-wards the mistake was discovered, and, to correct it, D. S. was credited with the sum named. On October 2 thereafter D. S. deposited $250 in the bank, and about that time received his bank book posted up to date. On the 5th of October of the same year he appeared at the bank and stated to the cashier, who had been absent, that a mistake had been made in not giving him credit for the sum claimed. The cashier thereupon, without a full investigation, gave the defendant in error credit on his bank book for the sum stated. The entry was afterwards erased. In an action by D. S. against the bank he testified to making the deposit named, and also to the deposit of $250, and also from what source the latter sum had been received, but failed to show from whence he received the money in dispute. The bank employes having testified that no deposit was made by the defendant in error, as stated by him, and explaining the mistake above set forth, it devolved on the defendant in error, in view of the fact that from his previous deposit account with the bank it did not appear that he had been in the habit of depositing on any day so much money as the aggregate of the sums named, to show from whence he derived the money in dispute he claimed to have deposited, the aggregate being an unusual deposit.</p> <p>2. Review. Where a verdict is against the clear weight of evidence it will he set aside.</p>

<p>1. Murder: A Prosecution for murder may be by information filed by the public prosecutor.</p> <p>■2. -: The Information in the case held sufficient to sustain a conviction of murder in the first degree.</p> <p>3. -: Continuance: Absence of Witnesses. Where a motion for a continuance of a criminal case made by the accused, on account of the absence of a witness, is supported by affidavits stating what the witness would testify to if present, and it appearing that such testimony is materia], that reasonable diligence has been used to procure the same, and that there is a probability of obtaining such testimony by the next term of court, held, the continuance should be granted.</p> <p>4. -: -: Counter-Affidavits cannot be used on the hearing of such a motion.</p> <p>& -: -: Information: Names Indorsed on, After . Filin».' The names of additional witnesses may, in the discretion of the trial court, be indorsed on an information after the filing thereof and before the day of trial. Where the name of a witness is indorsed on the day of trial, but not called and examined, error cannot be based thereon.</p> <p>6. --: Motions Heard in Absence of Prisoner. It is not error to hear arguments in the absence of the accused, on motions and demurrers, before the commencement of the trial.</p> <p>7. -: Jurors: Bias. When a person called to serve as a juror in a criminal case discloses on his voir dire that he has an opinion as to the guilt or innocence of the accused based on rumor and the reading of newspaper accounts of the alleged crime, which will require evidence to remove, a challenge for cause should be sustained, even though he states that he thinks he could render an impartial verdict under the law and evidence. (Curry v. State, 4 Neb., 548.)</p> <p>8. -: Instructions. No prejudicial error was committed in refusing the defendant’s request on the presumption of innocence as the law on that subject had already been correctly stated in the instructions given.</p>

Original application for injunction. Municipal bonds issued without power clearly conferred by law are void and holders are chargeable with notice. (Marsh v. Fulton Co., 10 Wall. [U. S.], 676; Fast Oakland v. Skinner, 94 U. S., 255; Lewis v. Shreveport, 108 Id., 282; Ogden v. Daviess Co., 102 Id., 634; Dixon Co. v. Field, 111 Id., 83; Jonesv. ILurlhurt, 13 Neb., 130; Spurclc v. R. Co., 14 Id., 293.) Registration gives no validity. {Statev.

Tried Delow before Powers, J. cited, on the point that the judgment in replevin was not a bar to the action for an accounting: Cromwell v. Sac Co., 94 U. S., 351 — 6; Lord v. Chadbourn, 42 Me., 429 [66 Am. Dec., 290]; Russell v„ Place, 95 TJ.

<p>Appeal from the district court for Kearney county* Tried below before Gaslin, J.</p>

<p>1. Schools: Bond Proposition: Vote Required. The board of education of the city of 0. submitted at a regular city election a proposition to issue bonds under the provisions of the act entitled “An act relative to public schools in metropolitan cities,” approved March 31,1887, at which election there were cast for the office of mayor 12,337 votes; for the proposition to issue school bonds, 4,930, and against the proposition, 2,992 votes'. Bonds issued in pursuance of the proposition and authority were presented to the auditor of state for registration, and, upon rejection and application for mandamus to the officer, held, that the issuance of bonds was not sanctioned by the vote given.</p> <p>2.--:--: Provision for Interest Unnecessary. Where a proposition to issue bonds is submitted by the board of education under the provisions of the act of March 31, 1887, held, that it was unnecessary that it be accompanied by a provision to levy a tax to pay the interest on such bonds.</p> <p>3.--;--; Funds: Appropriation. Under the provisions of the act of February 7,1871, authorizing the board of regents of the high school, on Capitol square of the city of Omaha, to issue bonds, and of the acts amendatory and supplemental thereto, held, that the board of education of the school district of Omaha, under the authority and sanction of the electors, in accordance with the statute, may expend the public money, from the sale of school bonds, or otherwise, in the erection of school buildings on said square.</p>

Original application for mandamus. Expiration of term of office is not a defense (State v. Warner, 55 Wis., 271; People v. Collins, 19 Wend. [N. Y.], 56; People v. Treasurer, 37 Mich., 351; People v. Supervisors, 100 111., 332); even when, as in this case, the duty is a personal one (State, ex rel. Cressman, v. Barnes, 16 Neb., 37.) An action to recover back the. money is not an adequate remedy, such as will defeat mandamus. (High, Ex.

<p>Work and Labor: Set-Off: Negligence. In an action by A against B to recover for work and labor performed on a farm, B answered in effect admitting tbe claim of A, but alleging in substance that by reason of the negligence of A in driving a horse of B against a barbed wire fence the horse was greatly injured, in consequence of which he had sustained damages in , the sum of $125 and $20.50 for medicines and attendance, etc. Held, That the testimony failed to show any negligence of A, and that the court did not err in refusing to give certain instructions on the questions which were asked on behalf of B.</p>

<p>Limitations: Quasi-Pen al Actions: Stockholder’s Liability. Section 136 of chapter 16, Compiled Statutes, which makes stockholders in a corporation liable for debts contracted by the corporation while its officers are intdefault in publishing an annual notice stating “ the amount of all the existing debts of the corporation,” is gwrsi-penal, but is not a penalty, the evident purpose being to secure the rights of creditors, and an action to recover such debts is not barred by the statute of limitations in one year.</p>

<p>Error to the district court for Boone county. * Tried below before Tiffany, J.</p> <p>cited: Hedges v. Roach, 16 Neb., 673; Miller v. Mesiah, 15 Id., 646; Williams v. Bates, Id., 566.</p> <p>cited: 1 Bouvier, L. D. [14th Ed.], 90; 1 Greenleaf, Ev. [13th Ed.], 223; Brooks v. Butcher, 22 Neb., 644.</p>

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

<p>Error to tlie district court for Madison county. Tried below before Norris, J.</p> <p>cited: State Ins. Co. v. Jordan, 24 Neb., 358; Bobbitt v. Ins. Co., 66 N. C., 70 [8 Am. Rep., 494]; Patrick v. Ins. Co., 43 N. H., 621 [80 Am. Dec., 197]; Sansum’s Ins. Dig., 491, secs. 28, 29; 1126, sec. 107; 1130, see. 14; 1110, see. 35; 666, secs. 2, 3; 668, sec. 13; 669, sec. 18; Eastern E. Ins. Co. v. Ins. Co., 98 Mass., 420; 2 Wood, F. Ins., sec. 436; 440, N. 3; Spring Oarden M. Ins. Co. v. Evans, 9 Md. 1 [66 Am. Dec., 308]; Smith v. Ins. Co., 1 Allen [Mass.], 297 [79 Am. Dec., 733]; Shoemaker v. Ins. Co., 60 Barb. [N. Y.], 84; Davenport v. Ins. Co., 6 Cu'sh. [Mass.], 340; Murphy v. Ins. Co., 7 Allen [Id.], 239; Patten v. Ins. Co., 38 N. H., 338; 1 Wood, F. Ins., secs. 150, 168, 171 — 2, 231, 401; Berryman, Ins. Dig., 624, 1; 627, 19; 470, 61^68; May on Ins., sec. 290; Indiana Ins. Co. v. Drehm, 88 Ind., 578; Beck v. Ins. Co., 44 Md., 95; Richardson v. Ins. Co., 46 Me., 394 [74 Am. Dec., 495]; Byers v. Ins. Co., 35 O. St., 606; Weinberger v. Ins. Co., 18 Ins. L. J., 192; Frost v. Ins. Co., 5 Denio [N. Y.], 154 [49 Am. Dec., 234]; Southern M. Ins. Co. v. Yates, 28 Gratt. [Ya.], 585; Susquehanna M. F. Ins. Co. v. Swank, 102 Pa. St., 17; Angelí, F. & L. Ins., sec. 148.</p> <p>cited: Home Ins. Co. v. Davis, 98 Pa. St., 280; Clark v. Ins. Co., 6 Cush. [Mass.], 342; Ins. Co. of N. A. v. McDowell, 50 111., 120; Kausalv. Ins. Co., 31 Minn., 17; Fletcher v. Ins. Co., 13 Fed. Rep., 526; Ring v. Ins. Co., 51 Yt., 563; Mullin v. Ins. Co., 56 Id., 39; Manhattan Ins. Co. v. Weill, 28 Gratt. [Ya.], 389; Hartford, etc., Ins. Co. v. Gray, 80 111., 28; Somers v. Assur. Co., 9 Low. Can., 61.</p>

Tried below before Norris, J. contending that the judgment in the federal court was not conclusive, cited: Stezvart v. Thomas, 45 Mo., 42; Bridgeport F. & M. Ins.

Tried below before Morris, J. cited: Johnson v. Payne, 11 Neb., 269. One cannot become a creditor without the debtor’s consent. (Bishop, Contracts, sec. 211; Herman v. Edson, 9 Neb., 157; Phillips v. Jefferson Co., 5 Kan., 412.) Even admitting that the taxes became a part of the mortgaged debt, the whole was extinguished by the release. (Young v. Brand, 15 Neb., 604; Southard v. Barrington, 10 Id., 122; Johnson v. Payne, 11 Id., 271.)

<p>Divorce: Adultery:' The Evidence examined, and held, not to sustain the charge of adultery.</p>

<p>Error to the district court for Douglas county. Tried below before Doane, J.</p> <p>cited: White v. Merrill, 32 111., 511; Smith v. Schulenberg 34 Wis., 41; Butler v. Regents, 32 Id., 124; Juiliiard v. Chaffee, 92 N. Y., 529; Connell v. Vanderwerken, 1 Mackey [D. C.], 242; Am. Bridge Co. v. Murphy, 13 Kan., 33; St. Louis, etc., R. Co. v. Davis, 35 Id., 464; Scott v. Scott, 5 N. E. Rep., 397, and cases; Tompkins v. Hill, 14 N. E. Rep. [Mass.], 177 ; Sanford v. Abrams, 2 So. Rep. [Fla.], 373; Day v. Gardner, 7 Atl. Rep. [N. J.], 365.</p> <p>cited : 2 Parsons, Contracts, 555; 1 Greenleaf, Ev., sec. 305 ; Cummings v. Baars, 36 Minn., 350; Squires v. Amherst, 13 N. E. Rej). [Mass.], 609; Stapleton v. King-, 33 la., 28; Baker v. Nachtrieb, 19 Plow. [U. S.], 126; Aborn v. Rathbone, 54 Conn., 444.</p>

<p>The evidence in the trial court examined, and found sufficient to-sustain the judgment in the court below.</p>

Original application for mandamus. Special privileges cannot be granted by common carriers even when such privileges do not consist in actual transportation. (Q’ouehv. R. Co., 78 Eng. C. L., 255; Marriott v. R. Co., 87 Id., 499; Sanford v. R. Co., 24 Pa. St., 382; Olcottv.

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

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

<p>1. Insurance: Conditions: Waiver: A clause in a policy of fire insurance providing that “the company shall not be liable by virtue of this policy, or any renewal thereof, until the premium therefor shall be actually paid” maybe waived by the company.</p> <p>% -: Leased Premises: Increase of Risk by Tenant. When a tenant, without the knowledge or consent of the assured, erects an addition to the building insured, such change does not avoid the policy, although it contains a provision that it shall be void and of no effect if the risk be increased by any means within the control or knowledge of the assured.</p> <p>3. -: —--: Unlawful Use. The building insured was described in the policy as being occupied as a saloon. It was so occupied by a tenant at the time of the fire, as well as when the policy was issued. The fact that at the time of the loss the building was also used by the tenant for the purpose of prostitution does not invalidate the policy, when it appears that the premises were used for such illegal purposes without the knowledge or consent of the owner, and that the loss did not occur from such use.</p>

<p>Error to the district court for Douglas county. Tfiefl below before Hopewell, J.</p> <p>cited, as to loss of depositions: Cahill v. Hilton, 31 Hun [N. Y.], 114; Code, 314; 1 Bouvier, L. D. [15th Ed.], 52; 1 Burrill, L. D., 16; Story, Eq. Jur. [12th Ed.], sec. 78, and note. As to misconduct of plaintiff: Chamberlain v. Lindsay, 4 T. & C. [N. Y.], 24.</p>

<p>1. Continuance: Affidavit: Sufficiency. An affidavit for a continuance for a period, not exceeding thirty days, of a cause pending in a county court,-which was cognizable before a justice of the peace, is sufficient if it states “that the party cannot, for the want of material testimony which he expects to procure, safely proceed to trial.” (Code, sec. 960.)</p> <p>2.--: Costs. The awarding of costs on the granting of a continuance is discretionary with the trial court.</p> <p>3. Replevin: Reappraisement. There is no authority for reappraisement of property taken in replevin.</p> <p>4. A bill of particulars is not necessary in an act of replevin commenced in the county court where the value of the property is within the jurisdiction of a justice of the peace. If one is filed in such a case, which is defective, it is not sufficient grounds for rendering judgment for the defendant.</p>

<p>1. Evidence: Impeachment oe Witness: Foundation. In order to lay a sufficient foundation for the introduction of evidence to contradict the statement of a witness, as to a statement alleged or denied by him, it is indispensable that the witness’s attention be called to the declaration alleged or denied to have been made, and that the time and place, when and where, and the person to whom such statement should have been made be cited. All of which must be done with reasonable certainty.</p> <p>2. -: Agent’s Declarations: Not Admitted Against Principal. Where an agent had in his possession a chattel mortgage on certain cattle, and was, as the agent of the mortgagee, making investigations with a view of foreclosing the mortgage upon certain cattle then being shipped by the mortgagor to other parties, and expressed the opinion that the cattle to be shipped were the same cattle described in the mortgage; and in a subsequent action brought by a third party against the mortgagee for the possession of other cattle claimed by the mortgagee to be the cattle described in said mortgage: Held, That such expression of opinion by the agent was not admissible in evidence against his principal.</p> <p>3. Instructions given and refused examined, and held, rightly given and refused.</p>

<p>Error to the,district court for Gosper county. Tried below before Cochran, J.</p> <p>cited: Morrill v. Taylor, 6 Neb¿, 246, and cases.</p>

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

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

<p>Error to the district court for Douglas county. Tried below before Wakeley, J.</p> <p>Under sec. 143, ch. 23, Comp. Stats., no will, until probated, can convey property. (Woodbridge v. Banning, 14 O. St., 330; Pettit v. Black, 13 Neb., 152; Wilson v. Tap-pan, 6 O., 175; Lessee of Swazey v. Blackman, 8 Id., 5; Bailey v. Bailey, Id., 246; Dublin v. Ghadbourne, 16 Mass., 442; Shumway v. Holbrook, 1 Pick. [Mass.], 114.) Letters testamentary, or of administration, have no extraterritorial force. (Schouler, Ex’rs & Adm’rs, sec. 15, pt. 2, secs. 164-5; Kerr v. Moon, 9 Wheat. [U. S.], 565; Wills v. Cowper, 2 O., 129-30; Noonan v. Bradley, 9 Wall. [U. S.], 394; Naylor v. Moffat, 29 Mo., 126.) A court of one state has no right to order sale of land in another. (Schouler, sec. 19; Boyce v. Grundy, 9 Pet. [U. S.], 275.) The principle of equitable estoppel does not apply here. (Rosebrough v. Ansley, 35 O. St., 107; Mc-Oracken v. San Fi'andsco, 16 Cal., 626; Dams v. Davis, 26 Id., 41; Bowman v. Oudworih, 31 Id., 153; Dolaguev. Cress, 71 111., 880; Morgan v. B. Co., 96 U. S., 716; Bigelow, Estoppel, secs. 543-4, 608, and cases; Herman, Estoppel, secs. 752, 754, 947-8-9, 957.)</p> <p>The will, and not the probate, is the foundation of title. On probating the will, it relates back to the testator’s death, and confirms the subsequent acts of those acting under it. (1 Williams, Ex’rs, 158-65; Schouler, Ex’rs, sec. 58; 1 Jarman, Wills, 31; Fleeger v. Poole, 1 McLean [U. S.], 189; Poole v. Fleeger, 11 Pet. [U. S.], 210 — 11; Bicharás v. Pierce, 44 Mich., 444; Spring v. Parhman, 12 Me., 127; DeWolf v. Brown, 15 Pick. [Mass.], 462; Otto v. Doty, 61 la., 23; Olleman v. Kelgore, 52 Id., 38; Carpenter v. Denoon, 29 O. St., 329; 3 Washburn, R. P. [4th Ed.], 308.) As to the doctrine of estoppel: Bou/ndtree v. Den-son, 59 Wis., 530; Pomeroy, Eq. Jur., sec. 658, N. 2; Wilson v. Bigger, 7 W. & S. [Pa.], Ill; Smith v. Warden, 19 Pa. St., 425; Maple v. Kussart, 53 Id., 348; Adlum v. Yard, 1 Rawle [Pa.], 162; Page v. McKee, 3 Bush. [Ky.], 135; Drexel v. Berney, 35 Fed. Rep., 805 [122 U. S., 241]; Rorer, Judicial Sales, pp. 164-7; Burnley v. Stevenson, 24 O. St., 474 [15 Am. Rep., 621]; In re Place, 1 Redfield [N. Y. Surrogate’s Rep.], 276; Favill v. Boberts, 50 N. Y., 222; Gillespie v. Sawyer, 15 Neb., 536; Penn v. Heisey, 19 111., 395; Davidson v. Young, 38 Id., 145; Walker v. Mulvean, 76 Id., 18; Corwin v. Shoup, Id., 246; Gatlin v. Bodman, 6 Ind., 289; Morris v. Stewart, 14 Id., 334; Van Bensselaer v. Kerney, 11 How. [U. S.], 298, and cases; French v. Spencer, 21 Id., 228; jReynolds v. Cook, 83 Ya., 817, and cases.</p>

<p>1. Fraternal Insurance: Forfeit ores: Inebriety: Waiver. One B.,a resident of N. City, in 1883 was initiated as a member of the order of A. O, U. W., and thereafter paid the dues and assessments made upon him until October 29, 1886. A certificate was issued to him as a member of the order, which provided that he was “ entitled to all the rights and privileges of membership in the Ancient Order of United Workmen, and to participate in the beneficiary Jund of the order to the amount of two thousand dollars, which sum shall at his death be paid to his wife, Mary Brand. This certificate is issued upon the express condition that said Joseph Brand shall in every particular, while a member of said order, comply with all the laws, rules, and requirements thereof.” The principal defense was that for several years before his death he was addicted to the excessive use of intoxicating liquors. Held, 1st, The testimony upon that point being conflicting, that the jury would be justified in finding that he did not use liquor to excess; 2d, That even if the finding had been that he was addicted to the excessive use of such liquor, still, as no objection was made during his lifetime on that or any other ground, and there having been no forfeiture, the objection could not be made after his death to defeat the obligation of the order.</p> <p>2. -: Evidence held to sustain the verdict.</p> <p>3. -: No Error in the instructions.</p> <p>4. -: Forfeiture. On the facts stated, held,, that B. was excused from the payment of dues during his illness, and that there was no forfeiture of the certificate.</p>

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

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

<p>1. Judgment: Equitable Relief. A court of equity will not set aside a judgment at law, regular on its face, when it is not shown that the judgment was rendered where no cause of action existed.</p> <p>2. -: -: Laches. On the 6th day of September, 1875, D. M. O. & Co. recovered a judgment against G. & B. in the county court of Stanton county. On July 7,1886, G. & B. commenced this action to cancel the judgment, on the ground that it was obtained through fraud. Held, That G. & B. by laches had lost their right to equitable relief.</p>

Tried below before Harrison, J. cited on the point that a custom could not be proved unless pleaded, nor shown to modify an express contract: Lawson, Usages and Customs, p. 413; Blackett v. Assur' Go., 2 Cromp. & J. [Eng.], 244; Brown v. Foster, 13 Mass., 136; Dixon v. Dunham, 14 111., 324; Partridge v. Ins. Co., 15 Wall. [U. S.], 573; Luche v. Yoakum, 25 Neb., 427.

<p>* Appeal from the district court for Lancaster county. Heard below before Chapman, J.</p> <p>cited: Campbell v. Nesbitt, 7 Neb., 303; DeNayer v. Bank, 8 Id., 108; Phea v. Reynolds, 12 Id., 133; Whitehorn v. Oranz, 20 Id., 398; Richardson v. Hardwick, 106 U. S., 254; Quick v. Wheeler, 78 N. Y., 303; C., etc., R. Co. v. Bane, 43 Id., 242; Gh-egory v. Cameron, 7 Neb., 419; D., etc., Tpk. Co. v. McCoy, 13 O. St., 91; Smith v. Reynolds, 3 McCrary [U. S.], 157 ; Dorsey v. Hall, 7 Neb., 465; Earle v. Burch, 21 Neb., 707; Veith o. MaMurtry, 26 Id., 341; Bane v. Starkey, 15 Neb., 289.</p> <p>cited: Campbell v. Nesbitt, 7 Neb., 303.</p>

<p>1. Vendor’s Lien. A vendor of lands who has contracted to convey, but has made no conveyance, is entitled to a lien for a balance of the purchase money upon the lands in the hands of the vendee’s grantee who took with notice.</p> <p>2. -: Subrogation. Where lands were sold to two persons as co-tenants, one of whom afterwards sold to the other, the vendee agreeing to pay the balance of the original purchase money, and this vendee afterwards granted to a third party under a similar contract, the latter was not, by reason of discharging such balance, subrogated to the lien of the original vendor so as to prevent a lien from attaching in favor of the one who sold to his co-tenant.</p> <p>3. -: Vendee: Notice. A vendee who pays a part of the consideration after notice of an adverse equity is not a bona fide purchaser as to the amount so paid.</p>

<p>On motion for rehearing.</p>

<p>(Pending on rehearing.)</p> <p>1. Eeeeivers: Petition: Amendment: During the hearing for the appointment of a receiver the court permitted the plaintiff to file an amended petition, to which the defendants objected but did not ask leave to file amended answers thereto, and it was agreed that the original answers should apply to the amended petition. Held, That the power to grant amendments in furtherance of justice could be exercised by the court on such hearing, a reasonable opportunity being given to the adverse party to plead to the same, and that therefore there was no abuse of discretion.</p> <p>2. - — : Order Appointing, Interlocutory. The appointment of a receiver to take charge of property pendente lite is an interlocutory order, and no appeal therefrom can be taken until after final judgment.</p>

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

<p>1. Evidence s Grading Contract. In an action for the removal of earth at twenty cents per cubic yard, one S. testified that he had cross-sectioned the work before the grading was done, and in substance that the measurements were accurate. A Mr. H. then testified that he and S. had made estimates from the data furnished by S., and from such data a certain number, of cubic yards of earth had been removed. Held, That the evidence of H. was properly received.</p> <p>2. •-: -: Estimates. "Where the engineers of the city have cross-sectioned certain grading to be done for the city, made estimates thereof and filed the same in the engineer’s department, such estimates are admissible ssprima facie evidence of the correctness of such estimates.</p>

<p>Error to the district court for Boone county. Tried below before Tiffany, J.</p> <p>cited: Thompson, Trials, secs. 2280, 2292-4 and cases; Market v. Moudy, 11 Neb., 213; Kersenbrock v. Martin, 12 Id., 375; Long v. State, 23 Id., 50; Atchison v. State, 13 Lea [Tenn.], 278; Shiels v. Stark, 14 Ga.,432; Green v. State, 43 Id., 368; People v. Perry, 65 Cal., 568; Tidwell v. State, 70 Ala., 33; Joseph v. Bank, 17 Kan., 256.</p>

<p>Original information in nature of quo warranto.</p> <p>cited: People v. Sugar Refining Co., 54 Hun [N. Y.], 354; Gibbs v. Gas Co., 9 Sup. Ct. Eep., 553; People v. Chicago Gas Co., 130 111., 268 [7 Ry. & Corp., L. J., 23]; Cook, Trusts, p. 28; Morawetz, Priv. Corp., 376, 421, 656; Neustadt v. Hall, 58 111., 172; Craft v. MaConoughy, 79 111., 346 ; Messenger v. R. Co., 36 N. J. L., 413; Angelí & Ames, Corp., 227; Taylor, Corp., 305, 419, 421; Green’s Brice’s Ultra Yires, 416; Chicago L. Ins. Co. v. Needles, 113 U. S., 574 [5 Sup. Ct. Eep., 681]; People v. Dispensary, 7 Lans. [N. Y.], 806; People v. R. Co., 27 Barb. [N. Y.], 445; Hutchins v. Masterson, 46 Tex., 554; Richardson v. Buhl, 43 N. ~W. Eep. [Midi.], 1102; Franklin Co. v. Lewiston Sav. Inst., 68 Me., 43; Franklin Bk. v. Bank, 36 O. St., 350; Sumner v. Marcy, 3 Woodb. &M. [U. S.], 105; Mutual, etc., Ass’n v. Agency Co., 24 Conn., 159; Cent. R. Co. v. Collins, 40 Ga., 582; Berry v. Yates, 24 Barb. [N. Y.], 199.</p> <p>cited: Cooley, Const. Lim., 393*; 4 Political Science Quarterly, 316; “Facts About Trusts,” (Beach), Forum, Sept., 1889 ; “Railway Federation,” etc., Ry. & Corp. Laio Journal, July, 1889 ; 10 Andover Review, 109; 5 Forum, 384; “Trusts” (Carnegie), N. Am. ■Review, Eeb., 1889, p. 141.</p>

Heard below before Gaslin, J. cited, on the contention that the contract with reference to the sale of beer was not against public-policy: Hill v. Spear, 9 Am. Rep., 205; Shuenfeldt a. Junkerman, 20 Fed. Rep., 357; Traey v. Talmage, 14 N. Y., 162; Feineman v. Sachs, 7 Pac. Rep. [Kan.], 222; Bowman Distilling Co. v. Nutt, 10 Id., 163; Abberger v. Marrin, 102 Mass., 70; Boothby v. Plaisted, 12 Am.

Tried below before Hamer, J. The law will not aid a party capable of taking care of his own interests, who has made a losing bargain, unless deceit, against which ordinary care could not protect him, has been practiced. (Noetling v. Wright, 72 111., 390; MUler v. Craig, 36 IcL, 109 ; Cooley, Torts, 483*, and cases; Bristol v. Braidwood, 28 Mich., 191.) The representations were mere expressions of opinion, on which defendant relied at his peril.

<p>1. Mill-Dams: Indemnity. Where a mill-dam is built across a natural water-course without leave to build or to continue the same obtained under the provisions of the statute, the owner of an adjacent mill and dam, whose mill-power and premises may he affected or injured thereby, may prosecute proceedings for indemnity under the 14th sec. of chap. 57 et seq., Comp. Stats., without recourse to the ad quod damnum under the preceding sections.</p> <p>2.-: The Inquest and proceedings returned by the sheriff under the writ of ad quod damnum not satisfactory to the plaintiff, whose remedy lies under the 14th section et seq. of the mills and mill-dams act, will not be deemed reversible error as to other proceedings for want of consistent application to the remedy sought.</p>

<p>Error to the district court for Franklin county. Tried below before Gaslin, J.</p> <p>cited: Baker v. Daily, 6 Neb., 471; Caldwellv. Cans, 1 Mont., 570; Brandt, Suretyship, sec. 419; Wells, Replevin, secs. 243, 273, 494 ; Lee v. Hastings, 13 Neb., 512; Welbornv.Eskey, 25 Id., 193 [40 N. W. Rep., 960] ; Hunt v. Robinson, 11 Cal., 262, and cases; Wallace v. Clark, 7 Blackf. [Inch], 299; Mason v. Sumner, 22 Md., 312; Seldner v. Smith, 40 Id., 602; Scrugham v. Carter, 12 Wend., 131; Jennings v. Johnson, 17 O., 154; Kaley v. Shed, 10 Met., 309; Sedgwick, Measure of Damages, chap. 20.</p> <p>cited : Weiner v. Yam, Rensselaer, 43 N. J. L., 547; Watkins v. Rage, 2 Wis., 92 (dissenting opinion of Smith, J.); Foster v. Pettibone, 20 Barb. [N. Y.], 350, 363; Hagan v. Deuell, 24 Ark., 216; Woglam v. Cowperthwaite, 2 'Dali [Pa.], 68; Freyv. Leeper, Id., 131; Acker v. White, 25 Wend. [N. Y.], 614; Jones, Chattel Mortgages, 440-442; Ashley v. Waight, 19 O. St., 291; Smith v. McGh'egor, 10 Id., 470; Wells, Replevin, secs. 244,245,246,257,460, and authorities cited; Marseilles Mfg Co. v. Morgan, 12 Neb., 69; Nelson v. Garey, 15 Id., 535 ; Adams v. Neb. City Nat. Bank, 4 Icb, 370; Jones, Chattel Mortgages, secs. 181, 245, 432-3, 440, 442; Turner v. Killain, 12 Neb., 585; Dayton v. People’s Saving Bank, 23 Kan., 421; Pyle v. Warren, 2 Neb., 241; Severance v. Leavitt, 16 Id., 439 ; Cameron v. Marvin, 26 Kan., 627; Brigham v. McDowell, 19 Neb., 407; Story v. O’Dea, 23 Ind., 326.</p>

<p>Fraud: Deeds: Cancellation. The defendant, E. TVT. S., a resident of California, fell heir to an undivided one-third of 320 acres of land, situated near Weeping Water, Nebraska, worth from $25 to $30 per acre, which she had never seen and had no knowledge of its location or value. The plaintiff, desiring to-purchase the real estate, visited E. M. S. and her husband at their home in Oakland, California, and represented to them that the land was wild and unproductive, and that $10- per acre was far above its real worth. Relying upon such statements, the - defendants sold and conveyed the property to the plaintiff. Held, That the vendors were„entitled to have the deed canceled, on account of the misstatements of the vendee.</p>

Tried below before Gaslin, J. In 1887, sec. 214, Grim. Code, was so amended as to omit the words “bet or wager.” Under the statute in its present form, therefore, horse racing is not included. It is neither a gambling device, nor a game of hazard or skill.