Volume 30 — Nebraska Reports

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

Tried below before Broady, J. The contract was executory. (Fletcher v. Peck, 6 Cranch [U. S.], 136.) One party to such a contract may rescind it without the consent of the other. (Bishop, Contracts [2d Ed.], sec. 837; Clark v. Marsiglia, 1 Denio [N. Y.], 317.) The latter cannot sue as on a completed contract; his remedy is in damages for what he has suffered in not being permitted to perform.

<p>Appeal from the district court for Red Willow county. Heard below before Cochran J.</p>

Tried below before Norris, J. cited, on the contention that the measure of damages was the difference in value of land before and after fire: B. & M. R. Co. v. Beebe, 14 Neb., 463 ; Drake v. R. Co., 63 la., 310; Brooks v. R. Co., 34 N. W. Rep. [la.], 805; Wallace v. Gooda'l, 18 N. H., 456; Longfellow v. Quimby, 33 Me., 457; Chip-man v. Hibberd, 6 Cal., 162; Van Deusen v. Young, 29 Barb. [N. Y.J, 9; US. v. Taylor, 35 Fed.

<p>1. Garnishment: Banks: Service on Book-keeper. In garnishment proceedings against a bank, where the president and cashier are absent, notice and a copy of the order of attachment served upon the book-keeper thereof during business hours is sufficient.</p> <p>2. -: Delivery by Garnishee to Dependant. A garnishee duly served with notice and a copy of the order of at-' tactiraenfc against a defendant, who, after such service, delivers money or property then in his possession. to the defendant, will not thereby be released from liability to the plaintiff in the attachment.</p>

<p>Error to the district court foi’ Gage county. Tried below before Broady, J.</p> <p>cited,as to the motion for a continuance: Williams v. State, 6 Neb., 334; Johnson v. Dinsmore, 11 Id., 394; Hair v. State, 14 Id., 503; Newman v. State, 22 Id., 355; Parks v. Council Bluff's Ins. Co., 28 N. W. Rep., 424.</p> <p>cited on the same point: Stevenson v. Sherwood, 22 111., 238 [annotated, 74 Am. Dec., 140].</p>

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

<p>Appeal from the district court for Douglas county. Heard below before Wakeley, J.</p> <p>cited : Collins v. Megraw, 47 Mo., 497; Anderson v. Armstead, 69 111., 453; Jones v. Pothast, 72 Ind., 158; MoCormiok v. Law-ton, 3 Neb., 452.</p> <p>cited: Doolittle v. Goodrich, 13 Neb., 296; Willard v. Magoon, 30 Mich., 273; New-comb v. Andrews, 41 Id., 518; Laur v. Bandow, 43 Wis., 563; Flannery v. Bohrmayer, 46 Conn., 558; Wendt v. Martin, 89 111., 139; Price v. Seydel, 46 la., 696; Jones v. Walker, 63 N. Y., 612; Spinning v. Blackburn, 13 O. St., 131; Wright v. Hood, 49 Wis., 235.</p>

<p>1. National Banks: Usury. Where» national bank loans money at a usurious rate, which is included in the note, in an action to enforce that contract the interest is forfeited. Where illegal interest has been charged, but not paid, an action cannot be maintained to recover it back.</p> <p>3. -: -: Payments Applied on Principal. Where payments are made, generally to a national bank, on a promissory note which includes unlawful interest, they will be applied on the principal.</p> <p>3. Trial: Practice. If there is no evidence in a ease presenting questions of fact, it is not error for the trial court to take it from the jury.</p>

Tried below before Powers, J. The execution of the note was not an issue before the county judge, and, therefore, could not be made one in the district court. (O’Leary v. Islcey, 12 Neb., 137; Baier v. Hmnpall, 16 Id., 128; FuUer v. 8chroeder, 20 Id., 636 ; Ruddieh v. Vail, 7 la., 44.) As to the fourth instruction asked by defendant: Newton Wagon Co. v. Deirs, 10 Neb., 292; Turner v. O’Brien, 11 Id., 108; TJ. P. R. Go. v. Ogilvy, 18 Id., 639.

<p>1. Trial: Directing Verdict. If a trial court directs a verdict for either party, in a case where the testimony is conflicting upon a material fact, it is error.</p> <p>2. ———: Right op Argument. In a case tried to a j ury, where a material fact is in dispute, either party has an absolute right , to have his counsel argue the question of fact to the jury.</p> <p>S. The instructions requested by the defendant were properly refused.</p>

<p>Error to the district court for Cass county. Tried below before Chapman, J.</p> <p>cited: Jones, Mortgages, sec. 710; Otoe County v. Mathews, 18 Neb., 466; Forgyv. Merryman, 14 Id., 513.</p> <p>cited: Mills, Eminent Domain, secs. 65, 74; Desty, Taxation, pp. 1, 2, 6, 7; Severin v. Cole, 38 la., 463; Jones, Mortgages [2d Ed.], secs. 708,1625-31; Graham v. Flynn, 21 Neb., 232, and cases; Merriam v. Co fee, 16 Id., 451.</p>

<p>Error to the district court for Cuming county. Tried below before Norris, J.</p> <p>cited, as to the admission of testimony regarding the consideration : Ervin v. Saunders, 1 Cow. [N. Y.], 249 [13 Am. Dec., 520]; Thompson v. Ketcham, 8 Johns. [N. Y.], 190 [5 Am. Dec., 330]; Stackpole v. Arnold, 11 Mass., 27 [6 Am. Dec., 150]; Harrison v. Morrison, 40 N. W. Rep. [Minn.], 66; Curtice v. Hokanson, 38 N. "W. Rep. [Minn.], 694; Miller v. Edgerton, 15 Pac. Rep. [Kan.], 894; Parker v. Morrill, 3 S. E. Rep. [N. C.], 511; Dolsen v. DeQanahl, 8 S. W. Rep. [Tex.], 321; Armstrong v. Scott, 36 Fed. Rep., 63; Gallery v. Bank 2 N. W. Rep. [Mich.], 193; 2 Parsons, Notes and Bills, p. 501; Gridley v. Dole, 4 Comst. [N. Y.], 486; Hunt v. Adams, 7 Mass., 518; Pitt v. Ins. Co., 100 Mass., 500; Jones v. Jeffries, 17 Mo., 577; Hoare v. Graham, 3 Camp. [Eng.], 57 ; Anspach v. Bast, 52 Pa. St., 356; Harris v. Galbraith, 43 III., 309; Benjamin, Sales, [4th Ed.], sec. 452; Campbellv. Flemming, 1 Ad. & E. [Eng.], 40; Parsons, Contracts, [7th Ed.] p. 208; Shields v. Pettee, 2 Sandf. [N. Y]., 262; 3'Randolph, Com. Paper, sec. 1899; St. Louis Ins. Co. v. Homer, 9 Mete. [Mass.], 39; Eaves v. Henderson, 17 Wend. [N. Y.], 190; Clark v. Platt, 49 Ala., 86; Featherston v. Wilson, 4 Ark., 154; 2 Phil., Evid., 673, n. 495.</p>

<p>Appeal from the district court for Hitchcock county. Heard below before Cooi-iran, J.</p> <p>Citations of counsel are, in the main, referred to in opinion.</p>

<p>1. Judgment: Suit to Enjoin. In an action to enjoin a judgment upon the grounds that the plaintiff has a valid defense to the same, and that it was rendered through a breach of duty of his attorney, the facts constituting the alleged defense must he pleaded so that it may appear that on a re-examination of the case the result would probably be different.</p> <p>2. Insurance: Proof of Loss : Objections to proof of loss on a policy of insurance must be specific and not general — as the proof or any part thereof may be waived.</p> <p>3. Review. Upon the pleadings and proof, held, that the judgment was right.</p>

<p>1. Evidence examined, and held, to sustain the verdict.</p> <p>2. Trial: Right to Open and Close. Where upon the issues joined the plaintiff is required to introduce any evidence in support of his case, he will be entitled to open and close.</p>

<p>Appeal from the district court for Fillmore county. Heard below before Morris, J.</p> <p>cited as to fraudulent representations of intended use of land: Barber v. Lyon, 15 la., 37; Richardson v. Blcight, 8 B. Mon. [Ky.], 584; Rumph v. Abercrombie, 12 Ala., 64; Wyche v. Greene, 16 Ga., 49; Walker v. Hunter, 27 Id., 331; Hileman v. Wright, 9 Ind., 126; Woodruff v. Water Power Co., 10 N. J. Eq., 489; Abbott v. Abbott, 18 Neb., 505; Bishop, Contracts, sec. 665; Clark v. Tennant, 5 Neb., 556; Carpenter v. R. Co., 9 C. E. Green Ch. [N. J.], 249.</p> <p>contending that the deed embodied all agreements between the parties, and that their rights could not rest partly in writing and partly in parol, cited: McClure v. Campbell, 25 Neb., 58-9; Marshall v. Gridley, 46 111., 250; JPurinton v. R. Co., Id., 297, 299, 300; Waldron v. R. Co., 55 Mich., 420; Druse v. Wheeler, 22 Mich , 442, 443; Cedar Rapids, ete., R. Co. v. Boone Co., 43 la., 45; Conwell v. R. Co., 81 111., 232; Pierce on Railroads, p. 133, n. 2; 520.)</p>

Heard below before Field, J. A condition annexed to a devise which discourages or interferes with the marriage relation is void. (Potter v. McAlpine, 3 Demarest [N. Y. Sur. Rep.], 108; Conrad v. Long, 33 Mich., 78; Wren v. Bradley, 2 De Gex & Srn. [Eng.], 49 ; Brown v. Peak, 1 Eden [Eng.], 140; Tennant v. Braie, Tothill [Eng.], 241; 1 Story, Eq.

Tried below before Chapman, J. The application for removal was properly made to the federal court. (Fish v. Henarie, 32 Fed. Rep., 422; Malone v. JR. Co., 35 Id., 628; Kaitel v. Wylie, 38 Id., 865.) The right to remove accrues to any non-resident defendant, when there 'is a controversy between him and a citizen of a state where suit is brought (Fish v. Henarie, supra); and the right is not confined to cases where the controversy is separable (Whelan v. JR. Co., 35 Fed.

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

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

Heard below before Powers, J. cited, on the point that appellee was estopped from asserting an equitable title, since in the ejectment suit he had remained silent in reference thereto: Niven v. Belknap, 2 Johns. [N. Y.], 573; Hall v. Fisher, 9 Barb. [N. Y.], 17; Bank v. Bank, 50 N. Y., 575; Blair v. Wait, 69 Id., 113; Chouteau v. Gocldin, 39 Mo., 229; Dickerson v. Colgrove, 100 U. S., 578; Jamison v. Miller, 64 la., 402; Tiffany v. Anderson, 55 Id., 405; Beebe v. Wilkinson,…

<p>Homestead: Value Exceeding Statutory Limit: Liens. In an acLion in the nature of a creditor’s bill to collect a judgment on premises held as a homestead the value of which exceeded $2,000 subject to certain liens, held, that a decree applying the excess over $2,000 subject to the liens existing against the homestead prior to the commencement of the action was supported by the weight of testimony.</p>

<p>Error to the district court for Kearney county. Tried below before Gaslin, J.</p> <p>cited: A.&N. R. Co.v. Washburn, 5 Neb., 122; Kinnick v. R. Co., 29 N. W. Eep. [Ia.], 772; Lindsley v. R. Co., 33 N. W. Eep. [Minn.], 7; Wilson v. Hamilton, 4 O. St., 722; K. P. R. Co. v. Nichols, 9 Kan., 235; St. L. & S. R. Co. v. Pormon, 72 111., 504; Agnew v. Costa, 27 Cal., 425; Clark v. R. Co., 4 Kernan [N. Y.], 570; Jfaslin v. R. Co., 14 W. Ya., 180; Angelí,' Carriers [5th Ed.], sec. 214; Lawson, Contracts of Carriers, sec. 16.</p> <p>cited: Parrish v. Stale, 14 Neb., 60; 1 Am. and Eng. Ency. of Law, 174, 177; Phil., etc., R. Co. v. Anderson, [6 Am. & Eng. E. Cases, 407] 94 Pa. St., 351; R. V. R. Co. v. Fink, 18 Neb., 93; Gleeson v. Va. M. R. Co., 28 Am. and ,Eng. E. Cases, 202; Balt., etc., R. Co. v. Sulphur Springs, etc., Pist., 96 Pa. St., 65; Nugent'v. Smith, L. E. 1 C. P. D. 19, 423.</p>

<p>Error to the district court for Gage county. Tried below before Bjroady, J.</p> <p>cited: McCormick v. Stevenson, 13 Neb., 72 ; Romberg v. Hughes, 18 Id., 581; Rcrnson Mfg. Co. v. Richards, 35 N.W. Rep. [Wis.], 40; Thomas v. Richards, Id., 42; Hoagland v. Van Mten, 22 Neb., 681.</p>

<p>Error to the district court for Platte county. Tried below before Post, J.</p> <p>cited: Dunbier v. Day, 12 Neb., 596; Meyer v. R. Co. 2 Id., 312; Turner v. O’Brien, 5 Id., 543; Cooley, Torts, 210, 211, 213; Ross v. Langworthy, 13 Neb., 495; 1 Addison, Torts [6th Ed.], 225 and cases cited.</p> <p>cited: Johnson v. Miller, 29 N. W. Rep. [Ia.], 743; Ross v. Langworthy, 13 Neb., 492; Chapman v. Dunn, 56 Mich., 31; A. & N. R. Co. v. Bailey, 11 Neb., 333; Moller v. Moller, 22 N. E. Rep. [N. Y.], 169.</p>

Tried below before Crawford, J. All objections to jurisdiction must be made by the party in person and cannot be raised by counsel. (1 Bouvier, L. D., title “Appearances;” 1 Chi tty, Pleadings [10th Am. Ed.], 428 ; Knox v. Summers, 3 Cranch [U. S.], 496.) The tendency of this court’s holdings has been against special appearances. (Maxwell, Just.

Tried below before Hamer, J. Defendant in error, having accepted the shipping receipt and brought suit upon it, was bound by its terms. (Whit-worth v. R. Co., 87 N. Y., 413; Carsure v. Harris, 4 G. Greene [la.], 516 ;• Hutchinson, Carriers, secs. 240,241, 243, 248, 265.) As the testimony shows that the loss did not occur on defendant in error’s line, it is not liable. (Jenneson v. JR. Co., 5 Pa.

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

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

<p>Error to the district court for Lancaster county. Tried below before Field, J.</p> <p>Cornish & Tibbetts, oontra, cited: Humphries v. Spafford, 14 Neb., 488; Homan v. Steele, 18 Id., 652; Mc-Heighan v. Hophins, 19 Id., 33; Carmichael v. Dolan, 25 Id., 335; Code, secs. 144, 145.</p>

<p>Motion to strike transcript and petition in error from files.</p>

<p>Error to the district court for Gage county. Tried below before Morris,, J.</p> <p>A contract not alleged to be written will be presumed to be verbal. (Carr v. Hays, 110 Ind., 408; Burrow v. Terre Haute, ete., Co., 107 Id., 432; Langford v. Freeman, 60 Id., 46; Goodrich v. Johnson, 66 Id., 258; Borrington v. Meyer, 8 Neb., 215; B. & M.B. Co. v. Kearney County, 17 Id., 511, and cases cited.) A written warranty does not extend to defects Avhich are visible or known to the vendee. (Long v. Hides, 2 Humph. [Tenn.], 395 [41 Am. Dec., 214]; Benjamin, Sales, 616.) As to the extent of warranties in cases similar to this: Richardson v. Broion, 1 Bing. [Eng.], 344; Budd v. Fairmaner, 8 Id., 48, and citations; Anthony v. Hoisted, 37 L. T. [N. S.], 433; Benjamin, Sales [1889 Ed.], 815, sec. 935. A false statement in good faith and believed to be true is not actionable. (8 Wait’s Act. & Hef., 273; Taylor v. Leith, 26 O. St., 428.) An actionable Avarranty must have been relied upon. (Halliday v. Briggs, 15 Neb., 219, and cases; Proctor v. McCoid, 14 N. W. Rep. [la.}, 208; Abbott, Tr. Ev., p. 349, sec. 87; Schuyler v. Rv,ss, 2 Caines [N. Y.], 202; Chandler v. Ijopus, 1 Smith L. C., 299-320; Kyev. Alcohol Works, 51 la., 129; Bennett v. Buchan, 76 N. Y., 386; Leland v. Stone, 10 Mass., 459; McCormick v. Kelley, 9 N. W. Rep. [Minn.], 675; Marshall v. Brawhorn, 27 Ga., 275.) As to the instructions requested: the first, Greenleaf, Ev., sec. 461; Bowers v. People, 74 111., 418; GUI v. Crosby, 63 Id., 190; Gott'ieb v. Hartman, 3 Colo., 60; the fifth; Halliday v. Briggs, 15 Neb., 219; McCormick v. Kelley, 9 N. W. Rep., 675, and cases; the ninth, Benjamin, Sales, [1889 Ed.], 817, sec. 938; Broion v. Bigelow, 10 Allen [Mass.], 242; Muloany v. Rosenberaer, 18 Pa. St., 203; Vandewalker v. Osmer, 65 Barb. [N. Y.], 556.</p> <p>A .written warranty is to be construed most strongly against the maker of it. (Benjamin, Sales, p. 611.) The instrument in this case, fairly interpreted, insures the horse as valuable for the stud. (Benjamin,.Sales, sec. 613, note; Little v. Woodworth, 8 Neb., 283; Patrióle v. Leach, Id., 536.)' The injury was one whose effect was internal and hidden, aud plaintiff is not chargeable with notice thereof. (iShewalter v. Ford, 34- Miss., 417; Fisher v. Pollard, 2 Head [Tenn.], 314; Thompson v. Botts, 8 Mo., 710; Ccdlaway v. Jones, 19 Ga., 277; Benjamin, Sales, p. 611.) A warrantor may bind himself against visible and known defects. (Finney v. Andrus, 41 Yt., 631; First National Bank v. Grindstaff, 45 Ind., 158; Fletcher v. Young, 69 Ga., 591.)</p>

<p>Error to the district court for Colfax county. Tried below before Marshall, J.</p> <p>Cases cited by counsel are in the main referred to in opinion.</p>

<p>1. Pleading.' 'When the facts constituting.a canse of action or defense are stated in a pleading as a matter of information and belief, and not positively, an objection to this mode of statement cannot be raised by demurrer, nor by objecting to the introduction of testimony at the trial. The objection can only be taken • by motion. (Slouteriburg v. Lyirand et al., 13 O. St., 228.)</p> <p>2. Negotiable Instruments: Equitable Defense: Notice. Where a purchaser of negotiable paper, before maturity, takes it ■with knowledge of iacts which impeach its validity between antecedent parties, or with a belief based upon circumstances brought to his knowledge before the purchase that the maker had a defense to the note, such purchaser is not an innocent holder, and the paper is subject to the defenses existing between the maker and payee.</p> <p>3. Evidence: Substitution. Before the contents of a written instrument can be established by oral testimony, the loss of the instrument-must be accounted for.</p>

Tried below before Norris, J. The insured were bound to know that additional insurance in violation of the terms of the contract would prevent a recovery. (Havens v. Ins. Co., 111 Ind., 90; Clearer v. Ins. Co., 32 N. W. Rep. [Mich.], 660; Cook v. Anamosa, 66 Ia., 427; Russell v. Ins. Co., 42 N. W. Rep. [Ia.], 654; Clarke v. R. Co., 5 Neb., 314.) Any violation of lawful conditions imposed by the insurer, releases him from liability. (Wood v. Ins.

<p>1. negotiable Instruments: Transfer: Defenses: Notice. Where, in an action upon a promissory note bought by an indorsee, the defendant in the answer alleged that the note was made and delivered to the. payee to be held by him as security and guaranty that one W., whom the payee had agreed, for the consideration of $1,500, to take into equal partnership in his business, the same to be paid out of W.’s share of the net proceeds of the business, would remain in said partnership and iaitkiully perform his duty as such partner until said sum of $1,500 should be fully paid by the application of W.’s share of the net proceeds, and that said W. had faithfully performed, etc., and alleging notice of such defense to the plaintiff at the time of the purchase of said note; upon the pleadings and evidence, held, that the plaintiff could not recover without proof that he both bought and paid for the note before the receipt by him of notice of such defense.</p> <p>2. Conveyance. The paper writing, purporting to be an article of agreement, set out in the opinion, held, not to convey title to the land described.</p> <p>3. -: Written Contract: Novation. The existence of a written contract or instrument, duly executed between the parties to an action and delivered, does not prevent the party apparently bound thereby from pleading and proving that contemporaneously with the execution and delivery of such contract or instrument the parties had entered into a distinct oral agreement which constitutes a condition on which the performance of the written contract or agreement is to depend.</p>

<p>1. Railroads: Farm Crossings: Statutes Construed. Section 106 of chap. 16, Comp. Stats., construed, and held, that the “causeway or other adequate means of crossing,’’ which railroad corporations are required to make and keep in repair, when any person owns land on both sides of any railroad, and when requested so to do, is an adequate means of crossing such railroad track and right of way by such owner on foot or horseback, with wagon or carriage, or with domestic animals under his control, hut is not required to he adequate to the free passage of unherded cattle or other domestic animals wandering unrestrained from one side of the railroad to the other.</p> <p>2. ——-: -: -. Section 1 of chapter 72 construed, and held, that the railroad corporations to which the provisions of said section apply are required, under the penalty of the liabilities therein specified, to erect and maintain fences on both sides of their railroad “suitably and amply sufficient to prevent cattle, horses, sheep, and hogs from getting on the said railroad, except at the crossings of public roads and highways, and within the limits of towns, cities, and villages;” that this includes the space on either side opposite to private or farm crossings of the railroad, at which points such corporations are required to make or leave openings iu such fence with gates or bars to close and secure such openings ; but are not required to put in cattle guards at such private or farm crossings.</p>

<p>Appeal from the district court for Douglas county. Heard below before Wakeley, J.</p> <p>cited: Pom., Eq. Jur., vol. I, secs. 401-4, vol. II, secs. 19, 418, 419, 609, 610, 649, 664, 687, 818; Bleakley’s App., 66 Pa. St., 187; Van Cott v. Prentice, 10 N. E. Rep. [N. Y.], 257; Rapalje & Lawrence’s Law Die., 268; Herman, Estoppel, 1216, sec. 1085; Goodspeed v. Fuller, 46 Me.,141; Draperv. Shoot, 25 Mo.,197 [69 Am. Dec., 462]; Hammond v. Woodman, 41 Me., 177 [66 Am. Dec., 219]; Bob!: v. Bobb, 4 S. W. Rep. [Mo.], 511; Parker v. Kuhn, 21 Neb., 425-26 ; 1 Washburn, R. P. [4th Ed.], ch. 2 ; 3 Wait’s Act. & Def., secs. 99,102; 6 Id., secs. 2,10; Turner v. Hall, 60 Mo., 271; Putnam Free Sch. v. Fisher, 34 Me., 172; Sch. List. v. Benson, 31 Me., 381 [52 Am. Dec., 218]; Brandt v. Ogden, 1 Johns. [N. Y.], 156; Jackson v. Parker, 9 Cow. [N. Y.,] 74; Kirke v. Smith, 9 Wheat. [U. S.], 241; Fuqat v. Pierce, 49 Mo., 441; Ewing v. Burnett, 11 Peters [U. S.], 41.</p> <p>cited: Cutler v. Tuttle, 4 C. E. Gr. [N. J.], 549 ; Shroser v. Isaacs, 1 Stew. [N. J. Eq.], 320; Slocum v. Marshall, 2 Wash. C. C., 397; Newton v. Preston, Pr. Ch. [Eng.], 103.; Wright v. King, Harr. Ch. [Del.], 12; Enos v. Hunter, 4 Gilm. [111.], 211; O’Hara v. O’Neil, 2 Eq. Cas., Ab. [Eng.], 745; Cottington v. Fletcher, 2 Atk. [Eng.], 155; Ambrose v. Ambrose, 1 Cox P. Wm. [Eng.], 321; Bolt v. Rogers, 3 Paige [N. Y.], 156; Starkes v. Littlepage, 4 Rand. [Ya.], 372; Hershey v. Weiting, 14 Wright [Pa. St.], 244; Freeman v. Sedwick, 6 Gill [Md.], 28, 39 ; Stewart v. Iglehart, 7 Gill & J. [Id.], 132; Rapalje & Lawrence, Law Die., 96-7; Hall v. Sawyer, 47 Barb. [N. Y.], 119; Story, Agency, secs. 3, 25, 126 (and note 3), 133 (and notes 1 and 2); Perry, Trusts, secs. 1, 783; Dupont v. Wertheman, 10 Cal., 354; Mottv. Smith, 16 Id., 536 — 557; Blum v. Robertson, 24 Id., 140; Mch. Bk. v. Bk. of Columbia 18 U. S., 326; Beals v. Allen, 18 Johns. [N.Y.], 363; Hubbard v. Elmer, 7 Wend. [N. Y.], 446; Rossiter v. Rossiter, 8 Id., 494; North River Bank v. Aymar, 3 Hill [N. Y.], 263; Cox v. Robinson, 2 Stew. & Porter [Ala.], 91; Stow v. Wyse, 7 Conn., 214; Ins. Co. v. Poe, 53 Md., 28 [13 Am. Law Reg., 663]; Mechanics Bk. v. Schaumburg, 38 Mo. 228; Nesbitt v. Helser, 49 Id., 383; Sanford v. Handy, 23 Wend. [N. Y.], 260; Brantly v. S. Life Ins. Co., 53 Ala., 554; Wickham v. Knox, 33 Pa. St., 71; Watson v. Hopkins, 27 Tex., 637; Tlmrman v. Wells-Fargo Ex. Co., 18 Barb. [N. Y.], 500; Holtsinger v. Corn Ex. Bk., 6 Abb. Pr. [N. S.], 292; Bpadone v. Manvel, 2 Daly [N. Y.], 263; Clark v. Meigs, 10 Bosw. [N. Y], 337; Mwm v. Com. Co., 15 Jobas. [N. Y.], 44; Davenport v. Buckland, Hill & D. [N. Y.], 75; Fellows v. NoHhrup, 39 N. Y, 117; Cuyler v. Merr¡field, 5 Hun [N. Y], 559; Hetzelv. Barber 69 Barb. [N.Y.], 1; Hoytv. Hoyt, 17 Hun. [N. Y.], 192; Nixon v. Hyserott, 5 Johns. [N. Y.], 58; Allen v. DeWitt, 3 N. Y., 276; Dunshen v. Goldbaeher, 56 Barb. [N. Y.], 579; Haywood v. Thomas, 17 Neb., 237, 241; Gatling v. Lane, 17 Id., 77; Jackson v. Wood-ruff, 1 Cowen [N. Y.], 276; Jackson v. Luquere, 5 Id., 221; Hull v. (]., B. & Q. li. Co., 21 Neb., 373; Bailey v. Irby, 2 Nott & McCord [S. Car.], 343; Union Caned Co. v. Young, 1 Whart. [Pa.], 426; Parker v. Kuhn, 21 Neb., 413.</p>

<p>Review. Held, That there is sufficient testimony to sustain the verdict.</p>

<p>Error to the district court for Gage county. Tried below before Appelget, J.</p> <p>cited: Bellows v. West Fork, SO N. W. Rep. [Ia.], 582; Skinner v. Dayton, 19 Johns. [N. Y.], 573*; Gaines v. Miller, 111 U. S., 395; Com. Bank of Buffalo v. Warren, 15 N. Y., 577; Herr-mans v. Clarkson, 64 Id., 171; 1 Dillon, Mun. Corp., sec. 463; Hoyt v. Thompson, 19N. Y., 207; Olcottv. Tioga It. Go., 27 N. Y., 546; Medomak Bank v. Curtis, 24 Me., 38; Whitnel v. Warner, 20 Yfc., 425; Essex Turnpike v. Collins, 8 Mass., 292; Lyndeborough Glass Co. v. Mass. Glass Co., Ill .Id., 315; Sandwich Mfg. Co. v. Shiley, 15 Neb., 109.</p> <p>cited: Fulton v. Lincoln, 9 Neb., 363; Wheeler v. Plattsmouth, 7 Id., 279; Merriam v. Otoe Co., 15 Id., 413; Omaha Nat’l Bank v. Omaha, Id., 334.</p>

<p>1. Schools: A Moderator of a school district is not required to take an oath of office.</p> <p>2. -: Officers De Facto. When a person elected to the office of moderator of a school district fails to file with the director of the district his written acceptance of the office, hut immediately after his election enters upon the discharge of his official duties, by presiding at school district meetings, countersigning school orders, and performing all other duties required by law of such officer, without objection from any one, for more than a year, held, that the failure to file a written acceptance did not forfeit his title to the office.</p>

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

<p>Appeal from the district court for Cass county. Heard below before Chapman, J.</p> <p>cited: Liggett v, Morgan, 11 S. W. Rep. [Mo.], 241.</p> <p>cited: Horbach v. Miller, 4 Neb., 32; Gatling v. Lane, 17 Id., 83; Haywood v. Thomas, Id., 240; Mayberry v. Willoughby, 5 Id., 368; Campau v. Lubois, 39 Mich., 274; Tex v. Pflug, 24 Neb., 667; Levy v. Yerga, 25 Id., 766; Middlesex v. Lane, 21 N. E. Rep., 228 ; Friclc v. 8inon, 17 Pac. Rep., 439; Biggs v. Biley, 15 N. E. Rep., 253; Byers v. Sheplar, 7 Atl. Rep., 182.</p>

<p>Error to the district court for Red Willow county-Tried below before Cochran, J.</p> <p>cited: First Natl Bank of Omahav. Bartlett, 8 Neb., 319; Van Beuzer v. Peacock, 11 Id., 245; Bice v. Irwin, 11 N. E. Rep. [Ind.], 488 ; Chapman v. Summerfield, 14 Pac. Rep. [Kan.], 235 ; Gerald v. Gerald, 6 S. E. Rep. [S. Car.], 290; Hoes v..Boyer, 9 N. E. Rep. [Ind.], 427; Kennedy v. Powell, 34 Kan., 22; Rudershausen v. Atwood, 19 111. App., 58 ; Payne v. Wilson, 41 N. W. Rep. [Ia.], 45; Popendick v. Frobenius, 33 N. W. Rep. [Mich.], 887 ; Bull v. Merill, 36 Id., 677; Rockford Boot & Shoe Co. v. Mastín, 39 N. W. Rep. [Ia.], 219 ; Buhl v. Peak, 37 N. W. Rep. [Mich.], 876 ; Miller v. Krueger, 13 Pac. Rep. [Kan.], 641; Bailey v. Kan. Mfg. Co., 32 Kan., 73; Clemens v. Brillhart, 17 Neb., 336 ; Hedge v. Glenny, 39 N. W. Rep.[Ia.], 818 ; Citizens Hat’l Bank v. Webster, 41 Id., 47 ; Wooden v. Wooden, 40 N. W. Rep. [Mich.], 460; Moorman v. Gibbs, 39 N. W. Rep. [Ia.], 832; Cornel v. Gibson, 16 N. E. Rep. [Ind.], 130; Tomlinson v. Mathews, 98 111., 178.</p> <p>cited: Willard v. Foster, 24 Neb., 213; Richardson v. Boty, 25 Id., 424; Hedges v, Rooch, 16 Id., 674; Brown v. Rodgers, 20 Id., 547 Grimes v. Sherman, 25 Id., 843.</p>

<p>Appeal from tbe district court for Douglas county. Heard below before Groff, J.</p> <p>cited: McClelland v. Sanford, 26 Wis., 595; Miner v. Hess, 47 111., 170; Harter v. Christoph, 32 Wis., 247; McTucher v, Taggart, 29 la., 479; Strayer v. Stone, 47 Id., 336; Ivinson v. Hutton, 8 Ott. [U. S.], 79; Story, Eq. Juris., sec. 164 ; MaGoren v. Avery, 37 Mich., 120 ; Else v. Kennedy, 67 la., 376;' Wellon v. Merriok Co., 16 Neb., 83; Hill, Trusts, 265*; Burke v. Smith, 16 Wallace [U. S.], 390; Godden v. Khnmell, 99 U. S., 201; Warev. Galveston, 111 Id., 170; Bank Ü. S. v. Daniel, 12 Peters [U. S.], 52*; Lewis v. Marshall, 5 Peters [U. S.], 470*.</p>

<p>Error to the district court for Lancaster county. Tried below before Field, J.</p> <p>cited: Code, secs. 1011, 1012; Berggren v. B. Co., 23 Neb., 620.</p>

Tried below before Field, J. cited, on the contention that the complaint was defective: State v. Pisohel, 16 Neb., 490, 608; State v. Doyle, 11 R. I., 574; Bishop, Statutory Crimes, see. 1037, and cases cited in note 2. The same strictness is not required of a complaint as of an indictment. (Bayard v. Baker, 76 la., 220; Kingman v. Berry, 40 Kan., 625; Ex parte Maulé, 19 Neb., 273; Ex parte Eads, 17 Id., 145; Parker v. State, 4 O. St., 565; Bishop, Crim.

<p>Appeal from the district court for Lancaster county. Heard below before Field, J.</p> <p>Sanity of a testator is presumed. (1 Jarman, Wills, 104; Schouler, Wills, sec. 174; 1 Redfield, Wills, 32; Bush v. Megee, 36 Ind., 69; Moore v. Allen, 5 Id., 521; Herbert v. Berrier, 81 Id., 1; Sloan v. Maxwell, 2 Green, Ch. [N. J.], 563; Chandler v. Ferris, 1 Harr. [Del.], 454, 460; Thompson v. Kyner, 65 Pa. St., 368; Egbert v. Egbert, 78 Id., 326; Baxter v. Abbott, 7 Gray [Mass.], 71; Banker v. Banker, 63 N. Y., 409; Chrisman v. Chrisman, 28 Pac. Rep. [Ore.], 6; Elkinton v. BrioJc, 15 Atl. Rep. [N. J.], 391; Cotton v. Ulmer, 45 Ala.; 378; Meeker v. Meeker, 75 111., 266; 1 Williams, Exrs., 20; Groom, v. Thomas, 2 Hagg. [Eng.], 433.) Hence contestants were entitled to open and close. {Bates v. Bates, 27 la., 110; Moore v. Allen, supra; Turner v. Cook, 36 Ind., 129; Herbert v. Bereier, 81 Id., 1; 1 Thompson, Trials5 secs. 237, 239; Rogers v. Diamond, 13 Ark., 475'; McDaniel v. Crosby, 19 Id., 533; Tobin v. Jenkins, 29 Id., 151; Edeleji v. Edelen, 6 Md., 288; Brooke v. Toimshend, 7 Gill [Md.], .10; Higgins v. Carlton, 28 Md., 115; Marshall v. Davies, 78 N. Y., 414.) Most of the cases cited on this question by appellee present different issues from this case, or were rendered under statutes arbitrarily fixing the procedure. . The instructions as to the wife’s right to influence a testator should have emphasized the fact that the will must represent his wishes at the time when it was made. (Schouler, Wills, 227, 228, 236; Turner v. Cheesman, 15 N. J. Eq., 243, 264; Gardiner v. Gardiner, 34 N. Y., 155; Dean v. Negley, 41 Pa. St., 312; Haydoek v. Haydoek, 33 N. J. Eq., 494; Marx v. MeGlynn, 88 N. Y., 357; Baldwin v. Barker, 99 Mass., 79, 84; Rollwagen v. Rollwagen, 63 N. Y., 504.) Especially should the conduct of a second wife, charged with unduly influencing a testator, be scrutinized. (Cases last cited, and Mullen v. Helderman, 87 N. Car., 471; Schouler, Wills, sec. 236.) The instructions are vicious because of reiterations. {Olive v. State, 11 Neb., 30, 31; Parrish v. State, 14 Id., 60; Merkow v. Bauer, 15 Id., 150; Mopplekom v. Huffman, 12 Id., 95; Marion v. State, 16 Id., 349.) As to the refusal of the twelfth and thirteenth instructions asked: Schouler, Wills, 226, 236; 1 Redfield, Wills, 510; Haydoek v. Haydoek, supra; Griffith v. Diffenderffer, 50 Md., 466; Mooney v. Olsen, 22 Kan., 69; Bates v. Bates, supra; Lynch v. Clements, 24 N. J. Eq., 431-5; Rollwagen v. Rollwagen, 63 N. Y., 504; Gay v. Gillilan, 5 S. W. Rep., 7; Harvey v. Sullens, 46 Mo., 147; Reynolds v. Adams, 90 111., 134. As to the exclusion of the expert testimony: In re Norman’s Will, 33 N.W. Rep. [la.], 374; Schneider v. Manning, 12 N. E. Rep. [111.], 267; Kempsey v. McGinniss, 21 Mich., 123.</p> <p>Under a statute like ours, the executor must prove capacity of testator. (Tqjfv. liosmer, 14 Mich., 309, 318; Kempsey v. McGinniss, 21 Id,, 123; Aikin v.Wecherly, 19 Id., 482; Williams v. Robinson, 42 Vt., 663; Roberts v. Welch, 46 Id., 164; Comstock v. Hadlyme, 8 Conn., 254; Knox’s Appeal, 26 Id., 22; Robinson v. Adams, 62 Me., 369; Sutton v. Saddler, 3 C. B. N. S. [Eng.], 87; Brooks v. Barrett, 7 Pick. [Mass.], 96; Crowninshield v. Crowninshield, 2 Gray [Mass.], 524; Baxter v. Abbott, 7 Id., 83; Syme v. Boughton, 85 N. Car., 367; Delafield v. Parish, 25 Ñ. Y., 9, 29, 34; Boardman'v. Woodman, 47 N. IT., 120; Beazley v. Denson, 40 Tex., 425; Evans v. Arnold, 52 Ga., 169, 182; Schouler, Wills, secs. 170, 184; Will of Silver-thorn, 68 Wis., 372; 1 Whart., Ev., sec. 530; 1 Green-leaf, Ev., sec. 77; 1 Jarman, Wills, notes by R. & T., 105; Schouler, Exrs. & Admrs., sec. 73; McMechen v. Mc-Mechen, 17 W. Va., 683; Gerrish v. Nason, 22 Me., 438; Hardy v. Merrill, 56 N. H., 227; Carpenter v. Calvert, 83 111., 63, 71; Baldwin v. Parker, 99 Mass., 79; Kerr v. Hansford, 31 W. Va., 679; Hathaway’s Appeal, 46 Mich., 327.) As to the effect of drunkenness on testamentary capacity: Peck v. Cary, 27 N. Y., 9; Pierce v. Pierce, 38 Mich., 412; Estate of Gharky, 57 Cal., 274; Estate of Johnson, Id., 530; Schramm v. O’Connor, 98 111., 541; VanWyck v. Brasher, 81 N. Y., 262. As to what constitutes testamentary capacity: Will of Silverthorn, 68 Wis., 372; Meeker v. Meeker, 75 III., 266; Rutherford v. Morris, 77 Id., 410; Trish v. Newell, 62 Id., 197; Carpenter v. Calvert, 83 Id., 63, 71; Chafin’s Will, 32 Wis., 557; Lewis’s Will, 51 Id., 101; Jackman’s Will, 26 Id., 104; Will of Sarah Blakely 48 Id., 300; Kempsey v. MeGinniss, 21 Mich., 140; Higgins v. Carlton, 28 Md., 115 ; 1 Jarman, Wills, 112; Thompson v. Kymer, 65 Pa. St., 368; Harvey v. Sullens, 46 Mo., 247; Bundy v. Mo-Knight, 48 Inch, 502; Aikin v. Weckerly, 19 Mich., 482; Horn v. Pullman, 72 N. Y., 269. As to the value of expert testimony on testamentary capacity: Will of Sarah Blakely, 48 Wis., 305; Fraser v. Jennison, 3 N. W. Rep., 882; Kempsey v. McGinniss, 21 Mich., 139; Pierce v. Pierce, 38 Id., 417; Parish Will Case, 29 Barb. [N. Y.], 627; Carpenter v. Calvert, 83 111., 62. Bequest of another’s property is not positive evidence of incapacity. (1 Jarman, Wills, 113; Schneider v. Koester, 54 Mo., 500; Snow v. Benton, 28 111., 306.) Nor is an unequal division of the property. (1 Jarman, Wills, 112; Coleman v. Robertson, 17 Ala., 81; Gamble v. Gamble, 39 Barb. [N. Y.], 373; Trumbull v. Gibbons, 2 Zab. [N. J.], 117 ; Rutherford v.. Morris, 77 111., 397.) The instructions are well supported by authority. (Pierce v. Pierce, 38 Mich., 412; Latham v. Udell, 38 Id., 238 ; Wallace v. Harris, 32 Id., 380; Marring v. Allen, 25 Id., 505; Brick v. Brick, 66 N. Y., 145 ; Children’s Aid Society v. Loveridge, 70 Id.,.387, 394; Gardiner v. Gardiner, 34 Id., 155 ; Monroe v. Barclay, 17 O. St., 302; Robb v. Graham, 43 Ind., 1; Carpenter v. Calvert, 83 111., 62; Roe v. Taylor, 45 Id., 485; Pingree v. Jones, 80 Id., 177; Yoe v. McCord, 74 Id., 33; Tawney v. Long, 76 Pa. St., 106; Jackman’s Will, 26 Wis., 104; McKeone v. Barnes, 108 Mass., 344; 1 Jarman, Wills, 36, 131, 144; McLntire v. McConn, 28 la., 480; Rankin v. Rankin, 61 Mo., 295; Latham v. Schaal, 25 Neb., 535; Bradford v. Vinton, 26 N. W. Rep. [Mich.], 401; Rutherford v. Morris, 77 111., 410.</p>

<p>Appeal from the district court for Eillmore county. Heard below before Morris, J.</p> <p>cited: Tootle v. Dunn, 6 Neb., 93; Parmer v. Keith, 16 Id., 91; Hindds Lessees v. Longworth, 11 Wheat. [U. S.], 213*; Stoll v. Gregg, 23 Neb., 231; Stoddard v. McLane, 56 Mich., 11; Newman v. Willetts, 52 111., 98; MoKibben v. Barton, 1 Mich., 213; Jones v. Green, 1 Wall. [U. S.], 331; Weil v. Jjanhins, 3 Neb., 385; MoElwain v. Willis, 9 Wend. [N. Y.], 549; Chicago Dock Co. v. Me-; Kenzie,4S 111., 289; Eiseley v. Maichow, 9 Neb., 174; Pickards v. Cunningham, 10 Id., 417; Cahill v. Bigelow, 18 Pick. [Mass.], 369; Hall v. Soule, 11 Mich., 494; Bohannon v. Pace, 6 Dana [Ky.], 194; Garrett v. Garrett, 27 Ala., 687; Huffman v. Ackley, 34 Mo., 277; Houser v. Lamont, 55 Pa. St., 311; Beal v. Brown, 13 Allen [Mass.], 114; Standley v. Miles, 36 Miss., 434; Harden v. Babcock, 2 Met. [Mass.], 99; Emerson v. Slater, 22 How. [U. S.], 28; Clopper v. Poland, 12 Neb., 69; Nelson v. Boynton, 3 Met. [Mass.], 396; Fitzgerald v. Morrissey, 14 Neb., 199 ; Mills v. Brown, 11 la., 314; Mallory v. Gillett, 21 N. Y., 412.</p> <p>cited: Downie v. Ladd, 22 Neb., 534; Maxwell, PI. & Prac. [4th Ed.], 607; Lounsbury v. Catron, 8 Neb., 477; Burnham v. Doolittle, 14 Id., 217; Garty v. Fenstemaker, 14 O. St., 461; Brashear v. West, 7 Pet. [U. S.], 608; Drake, Attachment [4th Ed.], 453; Burlingame v. Bell, 16 Mass., 318; Swett v. Brown, 5 Pick. [Mass.], 178; 2 Wade, Attachments, 331, 333; Smith v. Sands, 17 Neb., 498; 2 Pomeroy, Eq. Juris., 745, 785; Wharton, Ev. [3d Ed.], 1014; Clopper v. Poland, 12 Neb., 70; Nelson v. Boynton, 3 Met. [Mass.], 396 ; Fish v. Hutchinson, 2 Wils. [Eng.], 94; Jackson v. Rayner, 12 Johns. [N. Y.], 291; Robison v. Uhl, 6 Neb., 328; Uhl v. Robison, 8 Id., 272; Eiseley v. Malchow, 9 Id., 180; Lloyd v. Strobridge^ 10 Chicago Leg. News, 1; Ely v. Ormsby, 12 Barb. [N.Y.], 571; Davis v. Caverly, 120 Mass., 415; Mallory v. Gillett, 21 N. Y., 412; Farley v. Clem-land, 4 Cow. [N. Y.], 432; Wills v. Brown, 118 Mass., 138; Case v. Citizens Bank, 2 Woods [IT. S.], 23; Gatch v. Fitch, 34 Fed. Rep. [IT. S.], 566-70; Irons v. Nat’l Bank, 6 Bissell [IT. S.], 301; XI. 8. v. Knox, 102 U. S. S. C. Rep., 422; Ball, Nat’l Bks., 231; Kennedy v. Gibson, 8 Wall. [IT. S.], 506; Hooker v. Ilammi/l, 7 Neb., 235; Wait, Fraud. Con., 223; Seymour v. Wilson, 19 N. Y., 418; O'irer v. Moore, 23 Cl St.,479 ; Starr v. Starr, 1 O., 321; Bump, Fraud. Con., 76-100; Gregory v. Whedon, 8 Neb., 377.</p>

<p>1. The evidence examined, and held, to sustain tlie findings and judgment of the district court.</p> <p>2. Real Estate: Contract for Sale: Occupation: Statute of Frauds. The deposit of building material, of from, ten to fifty wagon loads of sand, from 2,000 to 10,000 feet of lumber, and from 2,000 to 10,000 bricks, with a tool and lime house, or box ten feet square, upon an otherwise unoccupied and vacant town lot, from which portions of such material were from time to time hauled away and used by the owner in buildings then being buiLt or repaired by him on other lots, the balance remaining on the lot, all with the knowledge and implied consent of the owner of the title to the lot, held, not to point unmistakably to a contract between the owner of the lot and the owner of the building material, and tool box, for the sale of the lot, nor to constitute such a possession of the lot by the owner of the building material as amounted to a part performance of a verbal contract for the sale of the lot by the former to the latter, nor such as would take it out of the operation of the statute of frauds.</p> <p>3. -: -: Purchaser: Notice: The same held, not to constitute notice to a subsequent purchaser of the lot.</p>

<p>1. Conditional Deed: Agreement to Reconvey : Disability. Oue T., a man nearly eighty years of age, was desirous of obtaining a Joan of money on a quarter section of land, but the loan agent objected on the ground that the company he represented would not make a loan to a person of great age. The loan agent thereupon suggested that the land be conveyed to J., a son of T., a man about J'ort.y years of age, who would procure the Joan and give the security. This course was pursued and the loan obtained. Held, That a preponderance of the testimony established the fact that the conveyance to J. was not intended to be absolute, but to enable him to effect the loan; and, in an action by the father thereafter brought, J. would be compelled to reconvey, subject to the security for the loan.</p> <p>2. Wills: Admissibility in Evidence. Before the death of the testator, his will is not admissible in evidence to show title in a devisee.</p> <p>3. Supreme Court: Death of Party After Submission. The plaintiff, having died after the cause was submitted to the court, but before judgment, and it being apparent that the defendant had rights in the premises, the cause is remanded to the district court, with leave to the parties to file supplemental pleadings and take further testimony, and for the court to settle the ultimate rights of .the parties.'</p>

<p>1. Ifew Counties: Formation: Conflicting Propositions. A county board cannot lawfully submit, to be voted upon at the same election, two propositions to erect from a county two new counties, when the territory described in one proposition embraces a part of that included in the other. When conflicting petitions for the submission of the question of creating new counties are presented, it is the duty of the county board to grant the petition that is first filed, provided it meets all the requirements of the law, and refuse to submit the others.</p> <p>2. -: -: Area. New counties cannot be formed so as to reduce the county from which they are created to a less area than the constitutional limit.</p>

<p>Original information in nature of quo warranto.</p> <p>Ottenstein v. Alpaugh, 9 Neb., 240; Bazzo v. Wallace, 16 Id., 293; Malicie v. McDermots, 25 Id., 267; State v. Buffalo Co., 6 Id., 460; Kemerer v. State, 7 Id., 132; State v. Harrison, 113 Ind., 434; Johnston v. Wilson, 2 N. BL, 202; State v. Sheldon, 10 Neb., 452; Thomas v. Burrus, 23 Miss., 550; People v. Woodruff, 32 N. Y., 355; People v. Benfield, 45 N. W. Rep. [Mich.], 135;. McGregor v. Supervisors, 37 Mich., 388; Mechem, Pub. Officers, sec. 266; People v. Van Slych, 4 Cow. [N. Y.], 324; People v. Fitzsimmons, 68 N. Y, 514; Hole v. Field, 10 Bush [Ky.], 144; Saunders v. Owen, 12 Mod. [Eng.], 199*.</p> <p>People v. Weston, 3 Neb., 322; White v. Blum, 4 Id., 561; State v. Palmer, 10 Id., 205; White v. Lincoln, 5 Id., 514; Sexson v. Kelley, 3 Id., 107.</p>

<p>Error to the district court for Lancaster county. Tried below before Chapman, J.</p> <p>cited, contending that a principal is not criminally liable for sale of liquor by an agent, unless express or implied consent is shown: 1 Bishop, Cr. Law, seos. 402^-5; 2 Id., sec. 1155 ; Lathrope v. State, 51 Ind., 192; O'Leary v. State, 44 Id., 91; Wreidt v. State, 48 Id., 579; Hipp v. State, 5 Blackf. [Id.], 149; Com. v. Briant, 142 Mass., 463; Com. v. Stevenson, Id., 466; Com. v. Nichols, 10 Met. [Mass.], 259; Anderson v. State, 22 O. St-., 305; Mullinix v. People, 76 111., 215; Needy v. Howe, 72 Id., 135; Pennybaher v. State, 2 Blackf. [Ind.], 484; Parker v. State, 4 O. St., 564; Seibert v. State, 40 Ala., 60; Barnes v. State, 19 Conn., 398; Ewing v. Thompson, 13 Mo., 132; State v. Borgman, 2 Nott. & McCord [S. Car.], 34; -State v. Bohles, 1 Rice [S. Car.], 145; Martin v. McKnight, 1 Overt. [Tenn.], 330; Caldwell v. Sacra, Litt. Select. Cas. [Ky.], 118; State v. Mahoney, 23 Minn., 181; 4 Erskine’s Speeches, 137; Coke, Litt., 152a, 389a; 3 Coke, Inst., 138.</p> <p>cited, contending that ignorance on the part of the accused, of sale by his agent, was a mistake of fact which would not excuse a violation of the statute: State v. Denoon, 5 S. E. Rep. [W. Ya.], 315; 1 Whart., Cr. Law, sec. 247; People v. Blake, 52 Mich., 566; People v. Roby, 18 N. W. Rep. [Mich.], 360; Riley v. State, 43 Miss , 397; Com. v. Kelley, 140 Mass., 441; Dudley v. Sautbine, 49 la., 650; Eaircl-oth v. State, 73 Ga., 426; Com. v. Emmons, 98 Mass., 6; Halstead v. State, 41 N. J. L., 552; State v. Hartfiel, 24 Wis., 60.</p>

<p>1. Municipal Corporations: Vacated Streets: Title. L. was the owner of and resided in his dwelling house upon two adjoining lots of McCormick’s addition to the city of O., hounded north by Harney street, east by Twenty-ninth- (Twenty-eighth) street, and'south by Half Howard street. The streets and blocks of tbe addition, as laid out and platted, did not cor- • respond with those of the adjacent portions of the city previously laid out and platted. In order to correct and remedy this irregularity and inconvenience, the city, by ordinance, closed Twenty-eighth street and opened Twenty-ninth avenue through said addition west of the two lots and dwelling of L. in such manner as left a strip eight feet wide between the west one of the two lots and Twenty-ninth avenue; whereupon the city caused the damages to abutting property owners on Twenty-eighth street, including L., to be appraised, and was about to offer the vacated ground of said street at public sale, when'L. commenced Ms suit for injunction as to the whole proceedings. UeM,'That the fee simple title to the vacated street is in the city of O.</p> <p>2. -: -. The city possessed the power to vacate the street.</p> <p>3. -: -. Upon its vacation no title therein passed or reverted to L. as the owner of abutting property.</p> <p>4. -:•-•: DAMAGES. As the owner of such abutting property, L. was entitled to damages, in addition to any suffered, as one of the community at large.</p> <p>5. -: -: Remedy: Presumption. The provision by appraisement of damages, made by the city, presumed to be adequate for that purpose.</p> <p>6. The pleadings and facts in evidence fail to present a case for injunction against the city authorities.</p>

<p>Original application for mandamus.</p> <p>Cases cited by counsel are in the main referred to in opinion.</p>

<p>1. Pleadings: Liberal Construction. Under the Code, pleadings are to be liberally construed, and if' with such construction a petition states a cause of action against a defendant and in favor of the plaintiff, a demurrer thereto should be overruled-</p> <p>2. Petition: Exhibit Made Part Or. The facts on which a plaintiff bases his right to recover should be stated in a systematic and orderly manner, and not by making a mere exhibit a part of the petition- An exhibit, however, if made a part of- a petition, is to be considered, and if the facts therein stated, in connection with those in the petition proper, show a liability of the defendant to the plaintiff, a demurrer that the facts stated therein are not sufficient, cannot be sustainedo</p>

<p>Error to the district court for Gage county. Tried below before Appel get, J.</p> <p>cited: Ransom v. Getty, 14 Pac. Rep. [Kan.], 487 ; Teal v. Bilby, 123 U. S., 572; Mansfield v.JDole, 61 111., 191; Rey v. Toney, 24 Mo., 600 [69 Am. Dec., 414]; Wood v. Remide, 9 N. E. Rep. [Mass.], 831; Malaney v. Taft, 15 Atl. Rep. [Yt.], 327; Mills v. Qilbreth, 74 Am. Dec., 487.</p> <p>cited: Maynard v. Buck, 100 Mass., 40, 49; Best v. Yates, 1 Yent. [Eng.], 268; Lech v. Maestaer, 1 Camp. [N. P.], 138 ; Schouler, Bailment [2d Ed.], secs. 23,101; Edwards, Bailment, 236 ; Story, Bailment, sec. 443; 2 Parsons, Contracts, 131.</p>

<p>1. Real Estate: Option: Condition Precedent. The defendant gave the plaintiff a written proposition to sell certain real estate in the city of Omaha, for a specified price, conditioned that the plaintiff should pay within six months his note given to the defendant for merchandise, and pay the one-half of the price named during 1873 and the balance in 1874. Held, That thepayment of the note within the time limited was a condition precedent to the plaintiff’s right to accept the offer.</p> <p>2. -: -: Acceptance. Such proposition, to he binding, must he accepted on the conditions proposed within the specified time, unless the party making the offer continues it to the time of acceptance.</p> <p>3. -: - — : Specific Performance Denied. Under the evidence it was held, that the plaintiff is not entitled to a specific performance of the agreement.</p>

<p>1. Husband and Wife: Conveyances Between: Burden of Proof. In a contest between a wife and a creditor of her husband, over property transferred to her by him, after the debt is contracted, she must establish that she is a bona fide purchaser, by a preponderance of the evidence.</p> <p>2. --: -: -. The fact that the wife had possession of the property, claiming ownership, when it was attached by the creditor of the husband, does not relieve her of the burden of proving that the transfer was not made to her for the purpose of hindering, delaying, and defrauding such creditor.</p>

<p>1. Eoview: Bill oe Exceptions Essential. Alleged errors and matters of exception which are not properly subjects of record, must be preserved in writing and certified as required by statute, in order to be considered by the supreme court; and affidavits in support of, or in opposition to, any proceeding in the court below, must be embodied in a bill of exceptions.</p> <p>2. -: Stipulation Insueeioient. A stipulation of the attorneys in a cause stating that the record is a correct transcript of the proceedings, or that the files annexed .are the original files, and that the transcript may be accepted as the bill of exceptions, may be sufficient to justify the judge in the court belowin signing the same as a bill of exceptions, but forms no sufficient basis for the supreme court to consider the same as a bill of exceptions, without having been settled and signed as such. (See Credit Fonder v. Rogers, 8 Neb., 34.)</p>

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

<p>1. Husband and Wife: Creditor’s Bill. In a creditor’s bill brought to subject certain real estate conveyed by a husband to his wife, the proof clearly established the fact that the consideration which paid for the real estate was derived from the separate estate of the wife, but that the title was taken in the name of the husband under a parol agreement to convey to her on demand. The court below having found in favor of the wife, held, that the judgment was supported by the clear weight of evidence.</p> <p>2. -: -. field, That the proof failed to show that the creditor had relied upon the husband being the owner of the property in extending certain credit.</p>

Tried below before Harrison, J. cited, as to the motion to make more definite: Louisville, eto., Canal Co. v. Murphy, 9 Bush [Ky.], 522; Pomeroy, Remedies, secs. 529 — 31; Maxwell, PI. & Pr., pp. 73, 85, 203. cited, as to the affidavit for new trial: Qorache v. Hintz, 13 Neb., 397,and citations; Maxwell, PI. & Pr., 440; Hilliard, New Trials, sec. 38.

Original application for mandamus. The clerk cannot evade his liability to the county by qualifying as a notary public and abstracter, and performing as such work which he is authorized by law to do as clerk. (State v. Sovereign, 17 Neb., 175.) ' He must report all fees whether official and fixed by law or not.

On rehearing. cited, as to the sufficiency of the third count: If hite v. Nicholls, 3 How. [U. S.], 284; King v. Root, 4 Wend. [N. Y.], 136; O’Donaghue v. McGovern, 23 Id., 26; People v. Haley, 12 N. W. Bep. [Mich.], 671; Eviston v. Oramer, 47 Wis., 659.

<p>1. Agency. A principal is bound equally by the authority which he actually gives, and by that which, by his own act, he appears to give. - (Webster v. Wray, 17 Neb., 579.)</p> <p>a. The apparent authority of an agent which will bind a principal is such authority as au agent appears to have by reason of the actual authority which he has or which he exercises with the knowledge and ratification of the principal.</p> <p>3. An authority to an agent to buy and ship specifieS commodities and to make cash advances on the same to be delivered, held, not to be authority, nor to give semblance of authority, to guarantee in the name of the principal an obligation of K., as purchaser, to pay B. & Co., vendors, for cattle sold on thirty days’ time.</p>

<p>1. Written Instruments: Construction. A chattel mortgage on certain buildings in course of erection and upon a leasehold interest, an assignment of the lease, and a contract between the parties in relation to the subject-matter were executed on the same day. Held, That in determining the rights of parties thereunder they would be construed together.</p> <p>2. -: -: Contract: Mortgage. Certain buildings situated upon leased land were mortgaged to one B. and an assignment of the lease executed to him and a contract entered into between the parties which provided “ that he (B.) shall have and take immediate possession of the property this day mortgaged to him by Anderson and wife, and Edling and wife, being the building and improvements on lot 8, in block 56, in the city of Omaha, Nebraska, including the lot. But the said Bradford, when he shall have been paid in full the amount due him upon said mortgage, is to surrender possession of said property to Anderson and Edling, and he hereby agrees with them to reassign to them the lease this date by them assigned to him. ” The mortgage also contains a provision that said Bradford shall have the right to collect all rents, issues, and profits thereof as further-security for the notes below described, and said rents are hereby assigned to him for that purpose, the same to be credited upon said notes as fast as the same are collected, save and except so much thereof as may be necessary shall be applied in the payment of the ground rent and insurance and such taxes as these mortgagors are bound to pay on said property.” Held, That it was the duty of Bradford to apply the rents in payment of insurance, taxes, ground rent, and interest on the notes, and that he could not declare a forfeiture and sell the property under the mortgage before the first note became due.</p> <p>3. -:-:-:■- — : Accounting. Plaintiff is entitled to an accounting and to redeem the property.</p>

<p>Error to the district court for Burt county. Tried below before Doane, J.</p> <p>cited: 2 Dillon, Mun. Corp., sec. 1018; Higert v. Greenoastle, 43 Ind., 574; Japes v. Portage, 5 N. W. Rep. [Wis.], 31; Estelle v. Lake Crystal, 6 Id. [Minn.], 775; Plattsmouth v. Mitchell, 20 Neb., 228, and cases, cited; Gregory v. Lincoln, 13 Id., 356; Ray v. St. Paul, 42 N. W. Rep. [Minn.], 297; Fox-worthy v. Hastings, 25 Neb., 133; Lincoln v. Beckman, 23 Id., 683; Ireland v. Plank Road Co., 13 N. Y., 526; Wood, Nuisances, [2d Ed.], sec. 327, note 1; Johnson v. Milwaukee, 1 N. W. Rep. [Wis.], 189; 2 Thompson, Trials, sec. 1766; Tritz v. Kansas, 84 Mo., 632, 643.</p> <p>cited: 2 Dillon, Mun. Corp., secs. 1003, 1005, 1008, 1010, 1011, 1015, 1016, 101.9, and 1024, and citations; Cartwright v. Belmont, 17 N. W. Rep., 237; Fulliam v. Muscatine, 30 Id., 861; York v. Spell-man, 19 Neb., 357; Kennon v. Gilmer, 4 Mont., 433; Brown v. Elliott, 45 How. Pr. [N. Y.], 102.</p>

<p>Error to the district court for Gage county. Tried, below before Broady, J.</p> <p>cited: S. G. & P. R. Co. v. Frown, 13 Neb., 317; B. & M. R. Co. v. Schluntz, 14 Id., 425; R. Co. v. Finlayson, 16 Id., 581; R. V. R. Co. v. Fink, 18 Id., 93; Schuyler Nat’l Bk. v. Bollong, 24 Id., 825.</p>

<p>1. Tax Liens: Foreclosure In an action to foreclose a tax lien, the owner of the equity of redemption is a necessary party.</p> <p>2. Parties: Non-joinder. Where a demurrer is sustained on the ground of non-joinder of parties defendant, the court should not dismiss the action without giving the plaintiff an opportunity to bring in the absent party.</p> <p>3. Pleading: Misjoinder on Causes When there is a misjoinder of causes of action, the plaintiff should be required either to-elect upon which cause of action he will proceed, or file a separate.petition for each cause of action. When such petitions are filed, an action should be docketed for each petition.</p> <p>4. -: Petition: General Demurrer to Whole. Where a petition contains more than one count, and a general demurrer is directed against the entire pleading, and is not limited to a particular cause of action, if either count is sufficient the demurrer must be overruled.</p>

<p>Findings: Must Conform to Issues. The findings of facts and the judgments must conform to, and be supported by, the allegations of the pleadings on which they are based. (Lipp v. Horbaeh, 12 Neb., 371.)</p>

Tried below before Doane, J. cited, as to the alteration: Savings Bank v. Shafer, 9 Neb., 4; 1 Bates, Partnership, secs. 452 — 3ct,* Daniel, Neg.

<p>Appeal from the district court for Douglas county. Heard below before Clarkson, J.</p> <p>cited : Rex v. Isley, 5 Ad. & Ell. [Eng.], 441; Torington v. Norwich, 21 Conn., 543; Feoplev. Mercein, 3 Hill [N. Y.], 408; Johnson v. Terry, 34 Conn., 259; In re Scaritt, 76 Mo., 565; Clark v. Bayer, 32 O. St., 310; Miner v. Miner, 11 111., 43; In re Qoodenough, 19 Wis., 296.</p> <p>cited : King v. Greenhill, 4 Ad. & Ell. [Eng.], 624; Mercein v. People, 25 Wend. [N. Y.], 98, 101 ; Clark v. Bayer, 32 O. St., 299 ; Hewitt v. Long, 76 111., 409; Miner v. Miner, 11 Id., 43; Cowls v.' Cowls, 3 Gilm. [111.], 435; State v. Barrett, 45 N. H., 15; State v. Smith, 6 Me., 462; Gishwiler^v. JDodez, 4 O. St., 615; In re Waldron, 13 Johns. [N. Y.], 417 ; U. S. v. Green, 3 Mason [U. S.], 484, 485; Marine Ins. Co. v. Hodgson, 6 Cranch [U. S.], 206 ; Schouler, Domestic Relations [2cl Ed.], 338-9; Hurd, Habeas Corpus, 528; 2 Story, Eq. Jur., 1341; State v. Bratton, 15 Am. Law Reg. [N. S.], 359; Dunmain v. Guynne, 10 Allen [Mass.], 272; Lyons v. Blenkin, Jac. [Eng. Ch.], 245.</p>

<p>Error to the district court for Lancaster county. Tried below before Field, J.</p> <p>cited on the question as to the name: Scott v. Ely, 4 Wend. [N. Y.], 555; Miller v. Foley, 28 Barb. [N. Y.], 630, and cases; Mead vl Haws, 7 Cow. [N. Y.], 332; Griswald v. Sedgwick, 6 Id., 456; Gurnsey v. Lovell, 9 Wend. [N. Y.], 319; Farnham v. Hildreth, 32 Barb. [N. Y.],.277; People v. Ferguson, 8 Cow. [N. Y.], 102; People v. Smith, 45 N. Y., 772, 784; Waterbury v. Mather, 16 Wend. [N. Y.], 613; Grandad, v. Beach, 7 How. Prac. [N. Y.], 271; Osborn v. Mc-Oloskey, 55 Id., 345; Hancock v. Bank, 93 N. Y., 85; Frank v. Levi, 5 Rob. [N. Y.], 599; Bank v. Magee, 20 N. Y., 363; Gardner v. Kraft, 52 How. Pr. [N. Y.], 499.</p> <p>cited on the same question: Eggleston v. Son, 5 Rob. [N. Y.], 640; Cooper v. Burr, 45 Barb. [N. Y.], 9 ; England v. N. Y Pub. Co., 8 Daly [N. Y.], 375; Linton v. First Nat’l Bk., 10 Fed. Rep., 897; Pancho v. Texas, 8 S. W. Rep., 476.</p>

Tried below before Doane, J. after contending that the doctrine of Wagner v. Gage Coimty and Schaller v. Omaha was intended to establish a rule of practice, and not a principle of the law of property, cited : Corn. v. Middlesex, 9 Mass., 388; Livermore v. Jamaica, 23 Yt., 361; Harvey v. P. Co., 47 Pa. St., 428; Troy & B. li.

<p>Municipal Corporations: Eminent Domain: Damages: Special Benefits Not Deducted. Where land is taken by a municipality for the opening of a street, the owner is entitled to the value of the land taken, without deduction for benefits.</p>

<p>1. Pleading: Reference to Pacts Previously Stated. While the facts constituting separate and distinct causes of action or defense are required to be separately stated, so that each count is distinct from every other and complete in itself, yet, where a fact has been stated once in a pleading in a cause, it may be referred to in any subsequent pleading, or subsequent count of the same pleading, and, by proper reference, he made a part thereof.</p> <p>2. -: The Answer construed, and held, to state all the essential facts necessary to constitute a counter-claim for a breach of warranty.</p> <p>3. Warranty: Statements of Partner. In an action against a partnership for a breach of warranty, it is compeieut to prove that one member of the partnership made the representations and warranty for the firm that induced the sale, although the pleading alleges that the warranty was made by the firm. A partnership is bound by the representations and warranties made in the sale of its goods by a member thereof.</p> <p>4. -: -: Evidence: Pleading. In such an action, it is not necessary to prove each representation set up in the pleading, but it is sufficient if any one of the material representations averred is established which induced the purchase.</p> <p>5. -: -: -. The testimony offered by the plaintiffs to establish propositions of compromise made by the defendants, was rightly excluded.</p> <p>6. -: -: -. In a suit for a breach of warranty brought by A against B, it is not competent to prove the representations made by C to D in the sale of the same kind of goods.</p> <p>7. Instructions. Held, That the instructions correctly embodied the law applicable to the case.</p>

<p>Referee: Should Sign Bill of Exceptions. In a case tried before a referee, it is bis duty to sign any true exceptions taken to any order or decision made by him in the case. Such bill of exceptions is not to be signed by the judge. {Light v. Kennard, 10 Neb., 330; Turner v. Turner, 12 Id., 161.)</p>

<p>Error to the district court for Lancaster county. Tried below before Field, J.</p> <p>cited: Dobson v. Dobson, 7 Neb., 21)6; it. V. M. Co. v. McPherson, 12 Id., 480.</p> <p>cited: Nuckolls v. Irwin, 2 Neb., 65; Verges v. Roush, 1 Id., 113; Giore v. Hare, 4 Id., 131; Horn v. Miller, 20 Id., 104; U P. P. Co. v. Marston, 22 Id., 722; Gifford v. B. Co., 20 Id., 538.</p>

Tried below before Broady, J. cited, contending that the sureties were released by variations in the plans : Miller v. Stewart, 9 Wheat. [U. S.], 680; Polak v. Everett, L. R. 1 Q. B. D. [Eng.], 669; U. S. v. EEillegas, 3 Wash.

<p>1. Insolvency: Sureties: Transfer of Property ip. A firm engaged in the mercantile business, being indebted in .about the sum of $18,000, for which A, B, and C were separately liable as sureties for about equal portions of said debt, sold their stock of goods, including real estate and other property, to said sureties, who jointly assumed all the debts for which they were severally liable. Held, That this was a sale and not an assignment, and if made in good faith would be sustained.</p> <p>2. -: -: Liability. The sureties, so far as appears, did not take the property for the benefit of one or more creditors of the debtor other than themselves, but they became absolutely liable for the debts which they had assumed, whether the property received was of sufficient value to pay said debts or not. Bonus v. Carter, 20 Neb., 566,distinguished.</p>

Tried below before Post, J. The district court of Wyoming, where the wife and children were domiciled, awarded the custody of the latter to the wife, and that decree is still in force. (Cooley, Const. Lim., 404; Kline v. Kline, 10 N. W. Rep., 825.) Defendant in error is not the head of the family because he has formed no part thereof since the divorce.

<p>Railroads: Fencing in City Limits. A railroad company is not required to fence its right of way within the limits of a city, town, or village. And where the larger portion of its depot and station grounds are within such limits, the company is not required to fence that part of such grounds extending outside of the city limits, and upon which abuts a platted addition to such city, when it appears that such grounds are constantly used, and are necessary for the proper transaction of its business as a common carrier.</p>

<p>Error to the district court for Lancaster county. Tried below before Chapman, J.</p> <p>cited: Chapman v. Kimball, 7 Neb., 399 ; Post v. Campau, 42 Mich., 90; Fritz v. Pusey, 31 Minn., 368; Prescott v. Trueman, 4 Mass., 630; Mitchell v. Warner, 5 Conn., 527; Carter v. JDen3 Za.b [N. T ] 273; Bronson v. Coffin, 108 Mass., 175; Garyv. Daniels, 8 Met. [Mass.], 482; Huyele v. Andrews, 113 N. Y., 85; Roche v. ZJllmann, 104 111., 1; Sharp v. Cheatham, 88 Mo., 498; Richardson v. Tobey, 121 Mass., 457; Dowling v. Henning, 20 Md., 179; Eno v. Vecchio, 4 Duel' [N. Y.], 53; Bloch v. Isham, 28 Ind., 37; Ingalls v. Plamondon, 75 111., 123; Platt v. Eggleston, 20 O. St, 414; Keteltas v. Penfield, 4'E. D. Smith [N. Y.], 134; Savage v. Mason, 3 Cush. [Mass.], 500; Andrea v. Haseltine, 58 Wis., 395; Haslett v. Sinclair, 76 Ind., 488; Maine v. Cumston, 98 Mass., 317; Brown v. McKee, 57 N. Y., 684; Spurr v. Andrew, 6 Allen [Mass.], 420; Lamb v. Danforth, 59 Me., 322; Russ v. hteele, 40 Vt., 310; Wilson v. Cochran, 46 Pa. St., 233; Bank v. Hill, 48 Ind., 52; Beach v. Miller, 51 111., 206; Kellogg v. Malin, 50 Mo., 496; Haynes v. Young, 36 Me., 557; Kellogg v. Ingersoll, 2 Mass., 101; Butler v. Gale, 27 Vt., ' 739; Hubbard v. Norton, 10 Conn., 422; Rawle, Cov. for Title [5th Ed.], 79/81 — 2; Clark v. Conroe, 38 Vt., 469; Gerald v. EUey, 45 la., 322; Butt v. Riffe, 78 Ky., 352? McGowen v. Myers, 60 la., 256; Blake v. Everett, 1 Allen [Mass.], 248; .Cathcart v. Bowman, 5 Pa. St., 319; Morgan v. Smith, 11 111., 199; Ginn v. Hancock, 31 Me., 42; Rosenberger v. Kellar, 33 Gratt. [Va.], 489; Mackey v. Harmon, 34 Minn., 168; Giles v. Dugro, 1 Duer [N. Y.], 331;. Mohr v. Parmelee, 43 N. Y., 320; 2- Washb., R. P. [4th Ed.], 300, 363; 3 Id., 468, 470,474; Mitchell v. Stanley, 44 Conn., 312; Roberts v. Levy, 3 Abb. Pr., (N. S.) [N. Y.], 311; Bertram v. Curtis, 31 la., 46 ; Cole v. Hughes, 54 N. Y., 444; Hendricks v. Starks, 37 N. Y., 106.</p> <p>cited : Rawle, Covenants for Title, 79, 80; Whitbeek v. Cook, 15 Johns. [N .Y.], 483; Vaughn v. Stuzaker, 16 Ind., 340; Goodtitle v. Aiker, 1 Burr. [Eng.], 133; Coretyou v. Van Brundt, 2 Johns. [N. Y.], 357; Lewis v. Jones, 1 Pa., 336; Peck v. Smith, 1 Conn., 103, 147; Hendricks v. Stark, 37 N. Y., 106; Waterman v. Van Every, 3 Alb. L. J., 304; Ogden v. Jones, 2 Bosw. [N. Y.], 685; Ingalls v.Plamondon, 75 111., 118; 2 Washb., R. P. [3d Ed.], 275; Bouvier’s Die., “Party Wall,” and authorities cited ; Walters v. Pfeil, 1 Mood. & M. [Eng.], 362; 3 Kent’s Com., 437; Partridge v. Gilbert, 15 N. Y., 601; Andrae v. Ilaseltine, 58 Wis., 395; Sanders v. Martin, 2 Lea [Tenn.], 213; Brooks v. Ourtis, 50 N. Y., 639 ; Mc-Gittigan v. Evans, 8 Phila., 264.</p>

<p>Error to the district court' for Douglas county. Tried below before Doane, J.</p> <p>cited: Goodwin v Ees Moines, 7 N. W. Rep., 411; Beardsley v. Hartford, 50 Conn., 529; Sparhawh v. Salem, 1 Allen [Mass.], 30; Tisdale v. Norton, 8 Met. [Mass.], 388; Zettler v. Atlanta, 66 Ga., 195; Starh v. Lancaster, 57 N. H., 88; Cobb v. Standish, 14 Me., 198; O. & Li. V P. Co. v. Martin. 14 Neb., 296.</p> <p>cited: Palmer v. Lincoln, 5 Neb., 136; 2 Thompson, Negligence, 745, 746, 762, 787; Cant-well v. Appleton, 37 N. W. Rep., 813; Burnham v. Boston, 10 Allen [Mass.], 29.0 ; Goochoin v. Des Moines, 7 N. W. Rep., 411; Glidden v. Moore, 14 Neb., 90; Willard, v. Newberry, 22 Yt., 458; Batty v. Duxbury, 24 Yt., 155 ; Bay v. St. Paul, 42 N. W. Rep. [Minn.], 297; Fox-worthy v. Hastings, 23 Neb., 772; Warner v. Holyoke, 112 Mass., 362.</p>

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

Heard below before Field, J. cited on the point that the contract was personal and could not be assignedRapalje & Lawrence, L. D., p. 282; Chitty, Contracts, 671.

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

<p>Appeal from the district court for Douglas county. Heard below before Doane, J.</p> <p>cited: Henderson v. Connelly, 123 111., 98; Hill v. Gill, 42 N. W. Rep. [Minn.], 294; Hilton v. Merrill, 106 Mass., 528, and cases cited, Paulsen v. Manske,. 18 N. E. Rep., 275; Savoy v. Jones, 2 Rawle [Pa.], 343; Biekel v. James, 7 Watts [Pa.], 9; Woodward v. Leiby, 36 Pa. St., 437; Bollin v. Cross, 45 N. Y., 768; Haekett v. Badeau, 63 Id., 476; Justice v. Parker, 12 N. W. Rep., 553; Keller v. Denmead, 68 Pa. St., 449; Botsford v. B. Co., 41 Conn., 464; Seitz v. P. Co., 16 Kan., 133; Atkins v. IAttle, 17 Minn., 320; Hunt v. Johnson, 19 N. Y., 279; Parkist v. Alexander, 1 Johns. Ch. [N. Y.], 394; N. 8. Ins. Co. v. Shriver, 3 Md. Ch. Dec., 381; 2 White & Tudor, Lead. Cas. Eq. [4th Am. Ed.], part 1, 204; Bank of Greensboro v. Clapp, 76 N. Car., 482; Monroe v. West, 12 la., 121; Jones, Mort., secs. 364, 375, 469, 576; Platt v. Griffith, 27 N. J. Eq., 207; Moroney’s App., 24 Pa. St., 372; Taylor v. La Bar, 25 N. J. Eq., 222; Macintosh v. Thurston, Id., 242.</p> <p>cited: Neil v. McKinney, 11 O. St., 58; Logan v. Taylor, 20 la., 297 ; Cochran v. Wimberly, 44 Miss., 503; Zeigler’s Ap., 69 Pa. St., 471; Hickox v. Greenwood, 94 111., 266; Mills v. Mil-burn, 7 Md., 315; Kline v. Lewis, 1 Ashm. [Pa.], 31; Brooks v. Lester, 36 Md., 65; Walker v. Burt, 57 Ga., 20; Holmes v. Ferguson, 1 Or., 220; Gillespie v. Bradford, 7 Yerger [Tenn.], 168; Scales v. Griffin, 2 Doug. [Mich.], 54; Burbridge v. Marcy, 54 How. Pr. [N. Y.], 446; Knapp v. Brown, 45 N. Y., 207; Phillips, Mechanics’ Liens, secs. 71, 73, 88, 89, 243, 244, 245, 246, pp. 130, 131; Oliver v. Davy, 34 Minn., 292; Orr v. Batterson, 14 B. Mon. [Ky.], 100; Millard v. West, 50 la., 616; Thaxter v. Williams, 14 Pick. [Mass.], 53; Rees v. Ludington, 13 Wis., 308; Jessup v. Stone, Id., 521; Perkins v. Davis, 120 Mass., 408; Guy v. Corriere, 5 Cal., 511; Campbell’s App., 36 Pa. St., 247; Stoner v. Neff, 50 Id., 258; Ansley v. Pasahro, 22 Neb., 962; MeGinniss v. Purrington, 43 Conn., 143; Callaway v. Freeman, 29 Ga., 408; Seitz v. R. Co., 16 Kan., 133; Trustees v. Young, 2 Duv. [Ky.], 582; Franeis v. Sayles, 101 Mass., 435; Conant v. Brackett, 112 Id., 18; McCarty v. Carter, 49 111., 53; Leissmann v. Lovely, 45 Wis., 420; Lauer v. Bandow, 43 Id., 556; Dutro v. Wilson, 4 O. St., 101; Johnson v. Dewey, 36 Cal., 623; McClintock v. Criswell, 67 Pa., 183; Hervey v. Gay, 42 N. J., 168; Craig v. Swinnerton, 8 Hun [N. Y.], 144; Nat’l Bk. Metropolis v. Sprague, 20 N. J. Eq., 13; Wilkersoh v. Rust, 57 Ind., 172; Muldoon v. Pitt, 54 N. Y., 269.</p>

<p>1. Mechanic's Lien: Paramount to That oe Vendor. Where a vendee of real estate, under a contract of sale, containing a stipulation that the purchaser shall construct a building upon the premises, erects a building thereon, the laborer or material-man is entitled to a lien against the property paramount to the lien of the vendor.</p> <p>2. -: Filin» Claim. Under section 2 of the mechanic’s lien law a-subcontractor, to obtain a lien, must make out and file with the recorder of deeds of the county where the building is erected a sworn statement of the amount due from the contractor for labor and materials, within sixty days from the performing of the labor and furnishing of the materials.</p> <p>3. -: Limitations. The contractor cannot maintain a suit against the owner until after the expiration of that time.</p> <p>4. -: Set-Off. If a building is not constructed according to contract, the owner is entitled to offset any damages he may have sustained thereby, and the lien attaches for the amount actually due after deducting such damages.</p>

<p>1. Master and Servant: Injuries: Negligence. Where an employer negligently provides his workmen with improper and unsafe apparatus with which to perform the work, and the workman, without any fault on his part, is injured owing to the employer’s neglect to provide suitable, safe, and proper appliances, the employer is liable for the injury.</p> <p>2. Review. Held, That the evidence sustains the verdict and judgment.</p> <p>3. The instructions examined, and held, to have been properly given.</p>

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

<p>Appeal from the district court for Richardson county. Heard below before Appelget, J.</p> <p>See opinion for citations of counsel.</p>

Tried below before Morris, J. cited, to the contention that the order was not reviewable: Wil-f son v. Shepherd, 15 Neb., 15; Seidentopf v. Annabil, 6 Id., 524; Drake, Attachment, sec. 419; Talbot v. Pierce, 14 B. Mon. [Ky.], 195.

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

Tried below before Doane, J. cited, contending that notice of forfeiture was not required: Sexton v. Chicago Storage Co., 21 N. E. Rep., 920,and cases cited; Colton v. Gorham,, 33 N. W. Rep., 76. cited, in reply to the contention: Wilson v. Gerhardt, 13 Pac. Rep., 705;. Hendrickson v. Beeson, 21 Neb., 61; Code, secs. 1020-22. As to the measure of damages for wrongful eviction: Sutherland, Damages, sec. 149, and cases; Mack v. Patchin, 42 N. Y., 167, and cases.

<p>1. I*ease: Fixtures: Lessee Cannot Re-enter to Remove. A tenant in possession under a lease which does not provide that he may remove his fixtures and improvements, cannot, after he has surrendered possession to his landlord, re-enter and remove his fixtures.</p> <p>->. -: -: Rights of Lessee’s Creditor. A creditor, by the levy of an execution upon a tenant’s fixtures, acquires no greater rights therein, or to remove the same, than the tenant had.</p> <p>3. -: Sale of Premises: Notice of Lessee’s Rights. ■When a tenant is in the actual possession of real estate at the time it is sold by the landlord, the purchaser is chargeable with notice of the rights of the tenant.</p> <p>4, -; Fixtures: Must Be Removed Without Injuring Premises. Unless there is a stipulation in the lease to the contrary, a tenant can only remove such improvements erected by him, the removal of which will not materially injure the premises or put them in a worse condition than they were in when he took possession. {Lawphere et al. v. Lowe, 3 Neb., 131.)</p>

<p>Error to the district court for Fillmore county. Tried below before Morris, J.</p> <p>cited: Cooley, Const. Lim. [4th Ed.], 180-1; Antonio v. Gould, 34 Tex., 49; State v, McCracken, 42 Id.’ 383; Smails v. White, 4 Neb., 353; B. & M. R. Co. v. Saunders Co., 9 Id., 510; State v. Lancaster Co., 17 Id., 85; State v. Hurds, 19 Id., 323; Const., sec. 2, art. 3; Newherter v. Price, 11 Ind., 199,; State v. Young, 47 Id., 150; Jones v. Thompson, 12 Bush [Ky.], 394; Rushing v. Sebree, Id., 198; State v. Kinsella, 14 Miun., 395; Boggs v. Washington Co., 10 Neb., 298; Whiter. Lincoln, 5 Id., 514; Ex parte Thomason, 16 Id., 238; Ives v. Norris, 13 Id., 252; Teaumsehr. Phillips, 5 Id., 305; Jones v. Lancaster Co., 6 Id., 486.</p> <p>cited : B. & M. R. Co. v. Saunders Co., 16 Neb., 123; Whiter. Lincoln, 5 Id., 515; People v. Mahaney, 13 Mich., 494; Santo v. State, 2 la., 208 ; Herold r. State, 21 Neb., 50.</p>

<p>Appeal from the district court for Cass county. Heard below before Field, J.</p> <p>cited: Preston v. Van Gorder, 31 la., 250; Jarvis v. Pedo, 19 Wis., 84 ; Sayles v. Davis, 22 Wis., 225; Dougherty v. Henarie, 47 Cal., 14; Blackwell, Tax Titles, 544, and citations; Wygant v. Dahl, 26 Neb., 562; D’Gette v. Sheldon, 27 Id., 829.</p>

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

<p>Fraudulent Conveyances: Unauthorized Preference of Creditors. B. waS the owner of a stock of goods valued at $4,200, and real estate valued at $1,500, and was indebted to ten creditors and firms to the amount of $5,000. The largest creditor was R., amounting to $1,800, not yet due. As security to R., B. delivered to him a mortgage on his real estate and a chattel mortgage of his entire personal property. In an attachment proceeding brought by one of the other creditors, held, that the mortgages to R. constituted a fraudulent disposilion of the property of B. (See W. V. Siorse & Co. v. J. F. Steinrod & Co., 29 Keb., 108.)</p>

<p>Error to the district court for Johnson county. Tried below before Broady, J.</p> <p>cited : Tallón v. FUison, 3 Neb., 75;. Herman, Chattel Mtgs., 235-6 ; Faulkner v. Meyers, 6 Neb., 418; Burnham v. Doolittle, 14 Id., 214; Smith v. Ainseow, 11 Id., 478 ; Reed v. Fletcher, 24 Id., 436, 452; Turner v. Killian, 12 Id., 585, 586; Dcnsmóre v. Tomer, 14 Id., 395; Lee v. Gregory, 12 Id., 284; Davenport Flow Co. v. Merwis, 10 Id., 321; Simmons FIdw. Co. v. Brohaw, 7 Id., 409; Grimes v. Canned, 23 Id,, 187. ■ 1 ■</p> <p>cited: Turner v. Killain, 12 Neb., 586; Jones, Chattel Mtgs., sec. 691, and cases cited; Lininger v. Herron, 18 Neb., 450; 23 Id., 197; Code, secs. 224 — 5, 244-49; Fitzgerald v'. Hollingsworth, 14 Neb., 188; Hollingsworth v. Fitzgerald, 16 Id., 492; .Ciarle v. Foxworthy, 14 Id., 241; Edney v. Willis, 23 Id., 63 ; ■ Smith-v. Ainseow, 11 Id., 478; Reed v. Fletcher, 24 Id., '452.</p>

<p>1. Trusts: Land Grant for Schools: Construction. Under the act of 1869, donating “ Capitol Square ” to the city of Omahaj the grant provided “ that the said property shall be used by said city for the purpose of a high school, college, or other institution of learning, and for no other purpose whatever;" held, that this does not include the mere primary department of the common schools.</p> <p>2. -: Change of Administrators. The substitution of the hoard of education for the hoard of regents of the high school; made by the act of 1871, did not change the character of . the trust but merely of the body which administered the same.</p> <p>3. The words “high school,” as used in the act, may be defined as a school where the higher branches of a common school education are taught.</p>

<p>Appeal from the district court for Cass county. Heard below before Broady, J.</p> <p>cited: People v. Oicott, 16 Mich., 283; Sudbury v. Stearns, 21 Pick. [Mass.], 148; Ex parte Murphy,7 Cow. [N. Y.], 153; People v. Tuthill, 31 N. Y., 550; Judkins v. Hill, 50 N. H., 140.</p> <p>cited: Mc-Crary, Elections [3d Ed.], secs. 547, 548; Knox v. Blair, 1 Bart 521; Brightley, Election Cases, 493; Russell v. State, 11 Kan., 308; Tarbox v. Sughrue, 12 Pac., Rep., 939; Pattern, v. Coates, 41 Ark., Ill; Burrv. Boyer, 2 Neb., 267.</p>

<p>Appeal from the district court for Dodge county. Heard below before Marshall, J.</p> <p>cited: Cooley, Const. Lim. [2d Ed.],. 116; Mays v. Cincinnati, "1 O. St., 268; R. Co. v. Columbus Co., Id., 77 ; State v. Wilcox, 45 Mo., 458; Locke, Civ. Gov., sec. 142; State v. Mayor, 38 N. J. L., 110; State v. Green, 27 Neb., 64; 1 Waterman, Corp., 347; Hildsley v. McEnters, 19 Am. Dec., 61, note 68; Green v. Burke, 23 Wend. [N. Y.], 490; People v. Hopson, 1 Denio [N. Y.], 574; 1 Dillon, Mun. Corp. [3d Ed.], 301, and citations; Ex parte Wolf, 14 Neb., 24.</p> <p>cited cases referred to in opinion.</p>

Tried below before Morris, J. A police judge may exercise only such powers as the statute gives him. (8. C. &P. R. Co. v. Washington Co., 3 Neb., 41; Morrill v. Taylor, 6 Id., 242; Doody v. Vaughn, 7 Id., 32; Brondberg v. Babbott, 4 Id., 519.) Secs. 11, 12, and-25, ch. 50, ...Comp. Stats., fix a,method of procedure which is exclusive. (8.

<p>1. Chattel Mortgages: Retention by Mortgagor: Fraud Presumed. A chattel mortgage, or hill of sale of personal property, not aeccompanied by an immediate delivery and followed .by an actual and continued change of possession of the property sold, mortgaged, or assigned, is presumed to be fraudulent and void as against subsequent purchasers in good faith; and when offered in evidence in an action between the person claiming under it and a subsequent purchaser in good faith, and for value, to be effective, must be accompanied by evidence on the part of the person claiming under such chattel mortgage, or bill of sale, that the same was made in good faith and without intent to defraud creditors or purchasers. A prior recording of the instrument will not supersede the'necessity of such proof.</p> <p>2. -: Failure to Record. Under the act of February 19,1877, sec. 26, ch. 32, Comp. Stats., an unrecorded bill of sale, contract, or lease, wherein the transfer of title or ownership of personal' property is made to depend upon any condition, is void only as against any purchaser or judgment creditor of the vendee or lessee in actual possession, obtained in pursuance of such sale, contract, or lease without notice. As to all other persons or par‘ties, the law remains unaffected by the act,-except in so far as it places conditional leases of personal property upon an equal footing with conditional sales.</p>

Original application for injunction. cited, on the point discussed in the opinion, cases there referred to. cited on the same point: U. P. II. Go. v. Colfax County,4 Neb., 450; State v. Adams County, 15 Id., 568; Angelí, Water-Courses, sec. 466; Olmstead v. Camp, 33 Conn., 532; Lewis, Eminent Domain, sec. 180; Head v. Amoskeag Mfg. Co., 113 U. S., 9; Hankins v. Ta.wrence, 8 Blackf. [Ind.], 266; Boston, etc., Corp. v: Newman, 12 Pick. [Mass] 467.

<p>1. Railroads: Bond Proposition. A proposition to issue bonds to a railway company is in the nature of a contract, upon the acceptance of which both parties are bound by the agreement.</p> <p>2. -: -: Agent: Representations. Where certain petitioners were induced to sign a petition calling an election in K. township, Seward county, upon the representations of au agent of the railway company that the depot would be located on section 16 of said township, when in fact the depot was after-wards located on section 17, held, that the company was bound by the representations of its agents, and that persons who had been deceived thereby and induced to sign the petition might set up such facts to enjoin the issuing of the bonds.</p> <p>3. -: -: Election : Petitioners. At least fifty freeholders, resident of the township, etc., must sign a petition to the county commissioners requesting them to call an election in said township for the purpose of voting aid for a railway. Without a petition so signed by the full number required, the commissioners have no jurisdiction.</p>

<p>Laches: Jud&ment by Default Affirmed. A firm of attorneys rendered service for Dixon county and filed a claim for the same before the board of county commissioners, which claim was rejected. The case was then appealed to the district court, the transcript being filed in March, 1886, and a petition filed in April following. The county filed no answer, nor other pleading in the case, and in April, 1887, judgment was entered against the county, and afterwards a motion made by the county to set the default aside was overruled. Held, That as error must appear to authorize the reversal of the judgment of the district court, and as the county had been guilty of gross negligence in not pleading, and it did not appear that it had any valid defense to the action, the judgment would be affirmed.</p>

<p>Chattel Mortgages : Description: Notice: Priority. In an action by a senior mortgagee against a junior mortgagee for the conversion of two mares which it is alleged were described in the senior mortgage as one dark brown mare, age five years, weight about 1,200 pounds, of the value of $175, and one dark brown mare, right hind foot white, age five years, weight about 1,200 pounds, of the value of $175, and in the junior mortgage as one dark brown mare five years old called “Dolly,” and one light brown mare four years old called “Pet,” held, that the testimony showed that the mares were properly described in the senior mortgage and that such mortgage was duly filed for record; it was notice therefore to the junior mortgagee, of the existence of the lien of the senior mortgagee, and that the senior mortgagee had the superior right.</p>