Volume 32 — Nebraska Reports

<p>Opinion Evidence. In an action of replevin of live stock, including a gray mare thirteen years old, and otherwise described, the defendant having called and examined twelve witnesses (as to the value of the stock), all of whom were neighbors of the original owner and mortgagor of the stock, and were acquainted with the quality and value of it, and testified accordingly, the plaintiff offered in rebuttal a witness who testified that he had been in the stock business exclusively for the last five years, and was acquainted with the market value of horses and neat cattle in the fall of 1887, but had never seen the stock in controversy. The plaintiff put the Q. What was the value, at that time, of a gray mare thirteen years old, weight about 1,100 or 1,200 pounds, without any blemish? To which, as incompetent and immaterial, objection was made and was sustained. Held, No error.</p>

<p>1. Pleading: Irrelevant Amendments. On the trial of a cause the defendant obtained leave to amend his answer by alleging “ that after making the sales named he (plaintiff) complained that the prices were too high as named by defendant and made no effort to sell the same, but neglected the same, to the defendant’s damage and injury.” Held, That the matter involved in the amendment, not being pertinent to the cáse, was calculated to raise a false issue and distract the. attention of the jury from the real questions for their determination.</p> <p>2. Instructions set out in the opinion held -to be erroneous.</p>

<p>1. Exemptions: Review. In an action of replevin by the head of the lamily against the sheriff, claiming certain property as being exempt, held, that the evidence sustained the judgment of the court below that the property was exempt.</p> <p>2. Petition, set out in the opinion, held, to state a cause of action.</p>

<p>Appeal from the district court for Johnson county. Heard below before Bboady, J.</p> <p>The property for which the lien is claimed is not an il appurtenance.” (Frey v. Drahos, 6 Neb., 1; Beers v. Knapp, 5 Ben. [U. S.], 104; Phillips, Mech. Lien, secs. 177, 178, 366; Baldwin v. Merrick, 1 Mo. App., 281; Lothian v. Wood, 55 Cal., 159; Baum v. Covert, 62 Miss., 113; Riehardsonv. Koch, 81 Mo., 264; Stout v. Sawyer, 37 Mich., 313; Colman v. Goodnow, 29 N. W. Rep., 338; Clark v. Schatz, 24 Minn., 300.) The notary in Missouri had no lawful authority to administer an affidavit to be used in this state. (2 Jones, Liens, sec. 1451; Benedict, Hall & Co. v. Hall, 76 N. Car., 114; Chandler v. Hanna, 73 Ala., 390; People v. Tioga, 7 Wend. [N. Y.], 516; Stanton v. Ellis, 16 Barb. [N. Y.], 319; Lovev. McAlister, 42 Ark., 183; Christman v. Floyd, 9 Wend. [N. Y.], 340; 'Haight v. Proprietors, 4 Wash. C. C. [U. S.], 601-6 ; Richards v. State, 34 N. W. Rep., 346.) A homestead is not subject to a mere lien for material such as this one. (Bowkev v. Collins, 4 Neb., 496; Frazier v. Syas, 10 Id., 118; Thompson, Homesteads, sec. 40; Aultman v. Jenkins, 19 Neb., 211; Swift v. Dewey, 20 Id., 109; Betts v. Sims, 25 Id., 175; Duncan v. Moore, 7 So. Rep., 221; Richards v. Shears, 11 Pac. Rep., 607; Walsh v. MoMenomy, 16 Id., 17 ; Roberts v. Riggs, 1 S. W. Rep., 431, and note; ICeller v. Struck, 18 N. W. Rep., 280; Duncan v. Bateman, 23 Ark., 327, 389; Pitts v. Bomar, 33 Ga., 96; Cogel v. Mickow, 11 Minn., 475.) A mechanic’s lien which is to operate upon a homestead must be in writing, signed by husband and wife (Barnes v. White, 53 Tex., 628; Campbell v. Fields, 35 Id., 751; Lyon v. Ozee, 66 Id., 95; Franklin Land Co. v. Wea Gas Oil Co., 23 Pac. Rep., 630), and must describe the property to be charged (Hammond v. Wells, 7 N. W. Rep., 218; Stout v. Sawyer, 37 Mich., 313.)</p> <p>The oath was sufficient. (Wood v. St. P. R. Co., 44 N. W. Rep., 308.) The homestead is not exempt from execution on mechanics’, laborers’, or vendors’ liens. They arise by operation of law. (Colpetzer v. Wardens, 24 Neb., 113; Cohn v. Hager, 30 Ark., 25.) The Texas citations are not in point, as the laws of that state expressly provide that no lien can be obtained on the homestead unless the contract of furnishing is in writing signed by the husband and wife and acknowledged by her. (2 Sayles’ Stats., art. 3,174. Neither is Cogel v. Mickow, 11 Minn., 475, auihority. (See Thompson, Homesteads, sec. 373.) Thii claim is for both labor and material, and all the statutes giving liens against the homestead are the outgrowth of equitable ideas. (Thompson, Homesteads, 373.) This question was before the supreme court of Arkansas, and the lien was held good against the homestead. (Anderson v. Seamans, 49 Ark., 475; Gulledge v. Freddy, 32 Id., 433; Murray v. Fapley, 30 Id., 568.)</p> <p>As to definition of mechanic: 2 Zell’s Enc. Die. [Ed. 1876], 1612; 3 Imperial Die. [Ed. 1883], 141; Webster’s Die. [Ed. 1890]. Only pure material men and furnishers are excluded by the homestead act. ('Richards v. Shear, 70 Cal., 187 ; Pitts v. Bomar, 33 Ga., 96 ; Walsh v. 3IeMen-omy, 74 Cal., 356.) Plaintiff complied with requisite conditions. (Goss v. Helbing, 77 Cal., 190; Doolittle v. Plenz, 16 Neb., 156.) A liberal construction of the lien law is advisable.</p>

<p>Mechanic’s Lien: Incomplete Agreement to Waive. In an action by a material-man to foreclose a mechanic’s lien the owner of the property answered in substance that one P. & Co. were the lowest bidders for the erection of the buildings; that, they being unable to give bond, the material-man agreed with him that in consideration of furnishing certain material to P. & Co. for the erection of the building, he would waive his lien upon the same, etc. The testimony showed that a memor- . andum was made of the terms of the agreement, but that it was to be reduced to writing and signed by the parties. Before the agreement was reduced to writing and signed, the owner let the contract for the erection of buildings to P. & Co. Held, That under the proof the contract was not to be complete until signed by the parties, and that the material-man was entitled to a lien.</p>

<p>Master and Servant: Injuries Outside Scope oe Employment. In an action by a girl thirteen years of age to recover damages for the loss of three fingers cnt off in a straw cutter while in the employ of the defendant, the defense in substance was that the operating of the straw cutter was no part of her duties, and that she operated that machine'voluntarily and without the knowledge of the defendant. Held, That a clear preponderance of the evidence sustained the defense and that there was no material error in the instructions.</p>

<p>1. Mortgages: Foreclosure: Collateral Attack.. In 1857 one R. J. T. executed a mortgage on certain real estate in.Douglas county. In 1872 an action was brought to foreclose the mortgage, service by publication and a decree of foreclosure, and sale had under which the real estate was sold, the sale confirmed, and a deed made to the purchaser. Held, That if the court had jurisdiction, any errors committed by it in the course of the proceedings were not subject to collateral attack.</p> <p>'2. -: -: Service by Publication. Where the defendant was a non-resident of the state, an affidavit for publication in which it was set forth that the action was brought to foreclose a mortgage of real estate in Douglas county, that the defendant was a non-resident and absent from the state and could not be served with a summons therein, was sufficient to authorize service by publication.</p> <p>3. -: -: Notice: Publication. A noticeof the pendency of an action to foreclose a mortgage published five consecutive weeks in a weekly newspaper is a good publication, although one week longer than necessary.</p> <p>4. -~: -: Proof of Publication sworn to by the bookkeeper of the company printing the same, is sufficient evidence prima facie of that fact. The proof may also be made by any person having actual knowledge of the fact.</p> <p>5. Jurisdiction: Tests: Collateral Attack. 'The sufficiency of the petition is not a test of jurisdiction, as the court may commit an error in holding it sufficient; but this, if the court had jurisdiction, will not render the judgment subject to colateral attack. (Trumble v. Williams, 18 Neb., 144.)</p>

<p>1. Mortgages: Refusal to Discharge: Penalty. Any mortgagee, his personal representative or assignee, after full performance of the condition of the mortgage, whether before or after a breach thereof, who shall, for the space of seven days after being thereto requested, and after tender of his reasonable charges, refuse or neglect to discharge the same or to execute or acknowledge a pertificate of discharge or release thereof, shall be liable to the mortgagor, his heirs »r assigns, in the sum of $100 damages, and also for all actual damages occasioned by such neglect or refusal.</p> <p>2. -:’-: Assignment. The word “assignee” applies to any assignee of the mortgage without regard to the form of the assignment.</p> <p>3. -: Transfer of Debt Carries Security. The note or debt is the principal thing, and the mortgage a mere incident, ' and the party to whom the note or debt is transferred becomes thereby the owner of the security, and on being paid the note or debt, he may be required to acknowledge satisfaction of the mortgage, and it is his duty, if need be, to provide himself with authority to satisfy the mortgage of record.</p>

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

Tried below before Neville, J. In order that successive occupants may tack the periods of possession, it is not only necessary that there should be priority between them but the holding must be under the first entry.

<p>Attachment: Grounds: Evidence. T. & Co. obtained an attachment against one D. upon a promissory note before the same, was due, on the ground that he had fraudulently disposed of his property with intent to defraud his creditors and was about to dispose of his property with that object in view. Held, That a clear preponderance of the evidence tended to show that the transaction was bona fide and not to defraud creditors.</p>

<p>Error to the district court for Lancaster county. Tried below before Chapman, J.</p> <p>Griswold v. Shaw, 79 111., 449; Kirkland v. Sullivan, 43 Tex., 233; Fawellv. Comm., 11 Miss., 127; Mattingly v. Bosley, 2 Webber, 50 Mich., 142. Ilill v.</p> <p>Maxwell, PI. & Pr., 440-1; Smith v. Anderson, 18 Md., 520.</p>

<p>1. Pleading. A motion filed by the defendants to strike out several words in tbe plaintiff’s petition, held, properly overruled.</p> <p>2. National Banks: Usury: Jurisdiction or State Courts. The courts of record of the state have jurisdiction in actions brought under secs. 5197 and 5198 of the Revised Statutes of the United States to 'recover from national banks the penalty for knowingly taking, receiving, reserving, or charging a greater rate of interest than is allowed by law.</p> <p>3. Review: Res Adjudicata. The questions of law involved in the case were settled in Schuyler National Banlc v. Bollong, 24 Neb., 821 and 825, and there is no material error in the record.</p>

<p>Review. In the ease set forth in the opinion, held, that there is no error in the record, and the judgment is affirmed.</p>

Heard below before Beoaly, J. contending that the proposition submitted did not need to be accompanied by a provision for the levy of a tax to pay the principal: Fremont Bldg. Ass’n v. Sherwim, 6 Neb., 48, 53; U. 8. v. Bodge Co., 110 U. S., 156, 161-2.

<p>Error to the district court for Johnson county. Tried below before Broady, J.</p> <p>London v. Headen, 76 N. Car., 72; Street v. Bryan, 65 Id., 619.</p>

<p>1. Trespass: Justification: Burden of Proof. When a party-cuts down a fence on the lands of another, and afterwards at. tempts to justify the act on the ground that the fence is within a public road, he must prove by a preponderance of the evidence that the fence at that point was within the limits of a legally established public highway.</p> <p>2. Highways: User: Wild Land. The existence of a legal public road over the premises of a private person may be shown by user alone, but in such case the user must have been with the knowledge of the owner and have continued the length of time necessary to bar an action to recover the title to land. This rule, however, does not apply when the user is of wild, uncultivated prairie land. (Graham v. Hartnett, 10 Neb., 517.)</p> <p>3. Trespass : Injunction. The defendants have repeatedly torn down plaintiff’s fence in order to pass over his lands, and have threatened to continue to do so. Held, That the plaintiff is entitled to relief in equity by injunction in order to prevent a multiplicity of suits.</p>

<p>Error to the district court for Webster county. Tried below before Gaslin, J.</p> <p>on the question of the acknowledgment of the debt: Bolfe v. Billoud, 16 Neb., 21; Devereaux v. Henry, Id., 55; Elder v. Dyes', 26 Kan., 604; Bissell v. Jaudon, 16 O. St., 506-7.</p> <p>Fort Scott v. Hickman, 112 U. S., 150; Watson v. Moore, 1 Car. & K. [Eng.], 627; Sibert v.. Wilder, 16 Kan., 176; Schmucker v. Sibert, 18 Id., 109; Clawson v. McCune, 20 Id., 337; Kierstead v. Brown, 23 Neb., 595; Sherer v. Piper, 26 O. St., 476 ; Melby v. Osborne, 29 N. W. Rep., 58; Dailey v. Coons, 64 Ind., 546; Jennings Co. v. Verbarg, 63 Id., 108; Draper v. Hatfield, 124 Mass.,. 53; Bangs v. Hall, 2 Pick. [Mass.], 368; Danforth v. Culver, 11 Johns. [N. Y.], 146; Hanson Towle, 19 Kan., 273.</p>

<p>Liquors: Information: Duplicity. Under the provisions of section 11 of chapter 50 of the Compiled Statutes, each act of selling any of the liquors named in the section, as well as the act of giving away any of them without a license so to do, is a crime. An information which charges in the same count the selling and giving away of two or more of the liquors named in the section, is defective, and is liable to a motion to quash. (State v. Pischel, 16 Neb., 490.)</p>

<p>1. Practice in District Conrt. A rule of the district court which provides that an action in which the statutory time for filing a reply has expired, or will expire one week before the first day of the next succeeding term, whether issue has been joined or not, may be noticed for trial at such term by either party, by filing with the clerk one week before the commencement of the term, and no action, not so noticed, will be docketed for trial of tried upon an issue of fact, except by consent of both parties, held, not to' apply to cases which are for hearing on error.</p> <p>2. Exemptions: Wages. Under the provisions of section 531a of the Code, the wages for sixty days’ services of laborers, mechanics, or clerks, who are heads of families, in the hands of their employers, are absolutely exempt from execution, attachment, or garnishment.</p> <p>3. -: Necessaries. The provisions of section 531 of the Code, which read * * * “ Nor shall anything in this chapter be construed to exempt from execution or attachment property of the value of more than five hundred ($500) dollars for any debt contracted by any person in purchase of the actual necessaries of life for himself or family,” do not apply-to debts contracted by the head of a family for groceries and provisions furnished him as supplies for a boarding house.</p>

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

<p>Xiareeny From tlie Person: Specific Yalue Need Not be Proved. In a prosecution under sec. 113a of the Criminal Code for larceny from the person, the prisoner was charged with stealing a silver watch and found guilty without specific proof of the value of the watch; held, no error.</p>

<p>1. Elections: Contest: The Stipulation of the parties set out in the opinion, held, to have submitted to the trial court only the twenty-one scratched ballots, and the questions arising as to counting or rejecting them, confined to the-form and substance of the ballots at the time of filing the stipulation by the parties.</p> <p>2. The finding and judgment of the trial court, held, to be in accordance with the provisions of secs. 80 to 100 inclusive, chap. - 26, Comp. Stats., in the absence of any record evidence to the contrary.</p>

Tried below before Clarkson, J. The right of the prisoner to be present at the time the jury viewed the premises was one which he could not waive. (Carroll v. State, 5 Neb., 35; Bürley v. State, 1 Id., 391; 1 Chitty’s Crim. Law, 700, 720; Fraedrioh v. Fliette, 25 N. W. Rep. [ Wis.], 28'; State v. Berlin, 24 La.

<p>Insurance: Misdescription of Premises Not Fatal. A misdescription of the land on which property insured is situated, will not of itself prevent a recovery in case of loss of the property by fire, nor is it necessary to reform the policy to entitle the assured to recover.</p>

<p>1. Mechanics’ Liens: Pleading. In an action to foreclose a mechanic’s lien, the defendant pleaded payment and set out certain cheeks, etc., to support his plea. The plaintiff in his reply alleged that $150 of the amount so paid was for extra work (describing it) which had been performed on the building by the plaintiff at the defendant’s request. Beld, That a motion to strike this allegation out of the-reply was properly overruled.</p> <p>2. -: -. Where damages were claimed by the defendant in his answer for a failure to complete the buildings in the time specified, the plaintiff in his reply alleged that the delay was caused by certain acts of the defendant (stating them) and not by the fault of the plaintiff, held, properly pleaded.</p> <p>3. Evidence, held, to sustain the judgment of the court below.</p>

<p>Error to the district court for Antelope county. Tried, below before Powers, J.</p> <p>Miller v. FLurford, 13 Neb., 24; Tharp v. Brenneman, 41 la., 251; State v. Kinkaid, 23 Neb., 641; State v. Ueland, 14 N. W. Rep. [Minn.], 59; Baldwin v. Shine, 2 S. ~W. Rep. [Ky.], 168.</p> <p>State v. Dodge Co., 20 Neb., 596.</p>

<p>Appeal from the district court for Cuming county. Heard below before Kinkaid,. J.</p> <p>Hurley v. Estes, 6 Neb., 386; Flagg v. Mann, 2 Sumner [U. S.], 533; Page v. Foster, 7 N. EL, 394.</p> <p>Littlejohn v. Turner, 40 N. W. Rep. [Wis.], 621; McEindley v. Nourse, 40 N. W. Rep. [Ia.], 750; Conlee Lumber Co. v. Meyer, 38 Id., 117; Wilson v. Moore, 13 Neb., 240.</p>

Nuckolls county. Tried below before Morris, J. The consideration of a note may be questioned in a suit between the original parties. (Search v. Miller, 9 Neb., 30; 1 Daniel, Neg. Inst., secs. 174, 187, 805.) Mutual debts, demands, or simple contracts do not per se extinguish each other. (Willy v. Collins, 9 Ga., 240; Post v. Carmalt, 2 W. & S. [Pa.], 72.) Set-off is permissive but not compulsory. (Himes v. Barnitz, 8 Watts [Pa.], 39.) Campbell was an innocent purchaser.

<p>1. Jurors: Bias. A juror in a criminal prosecution, disclosing on his voir dire that he has an opinion as to the guilt or innocence of the accused, based on rumor, and what he has heard in the court room, which will require evidence to remove, is incompetent, though he may state that he can render an impartial verdict under the law and evidence. (Miller v. State, 29 Neb., 437; Curry v. State, 4 Neb., 548; Cowan v. State, 22 Id., 523; Olive v. State, 11 Id., 1.</p> <p>2. The evidence examined, and held, not to sustain the verdict.</p>

<p>1. Liquors: Damages: Pleading. The precis of the statute, sec. 18, chap. 50, in an action against a licensed liquor seller, and his sureties, for injury by an intoxicated teamster, driving violently and negligently against the vehicle of plaintiff, held, to be a sufficient statement of the cause of action. (See Maxwell, PI. & Pr. [1889], 308; Kerlcow v. Bauer, 15 Neb., 154.)</p> <p>2. Review: Alleged Excessive Yerdict. That a verdict is excessive, and was rendered under the influence of passion and prejudice, assigned as an error in a civil action for review; held, that there must be some testimony or fact of record to support the conclusion.</p> <p>3. Trial: Challenge: Eeeoe Without Peejudice. If a challenge to an incompetent juror be overruled, and he is afterwards peremptorily challenged and excluded, and the record fails to show that the party’s peremptory challenge was exhausted, held,, that the error of overruling the cause for challenge was without prejudice. {Burnett v. B. <& if. B. B. Co., 16 Neb., 332.)</p>

<p>Liquors: Gift. On an information for the violation of see. 11,-chap. 50, Comp. Stats., 1889, charging the accused with unlawfully and knowingly giving away intoxicating liquor, not being licensed as a dealer nor having a permit as druggist, held, that the information charged no misdemeanor without charging that the giving away was a pretext to evade the provisions and penalties of the law. (Stale v. Ball, 27 Neb., 601.)</p>

<p>1. Chattel Mortgages: Provisions for Seizure by Mortgagee Construed. Where a chattel mortgage provides that the debt shall draw interest and shall be paid at certain stated times, and thereby is an implied agreement that the mortgagor shall remain in possession of the property until there is a default in payment, a provision that “ if the mortgagee shall at any time feel unsafe or insecure, he may seize and sell the property, ” will not authorize such mortgagee, without evident cause, to seize and sell such property before the debt becomes due.</p> <p>2. —--: -. The words “feels unsafe and insecure” do not mean that he may exercise an arbitrary discretion in the premises, but the mortgagor must be about to do, or has done, some act which tends to impair the security. (Newlean v. Olson, 22 Neb., 717.)</p>

<p>Rehearing of case reported 28 Neb., 90.</p>

<p>Wills: Contest: Costs May be Taxed Against Estate. In a contest of the validity of a will, prosecuted in good faith, and on tenable grounds, under sec. 44, chap. 20, Comp. Stats., held, that the costs of the contestant may be charged against the testator’s estate according to the judgment of the court.</p>

<p>landlord and Tenant: Alleged Lease Construed. An instrument in the form of a lease was drawn up between W. D. N., as party of the first part, and E. C. B. and Mrs. E. C. B., as parties of the second part, whereby W. D. N. purported to lease to E. C. B. and Mrs. E. C. B. a certain hotel building from the 25th day of August, 1888, to the 25th day of August, 1889, E. C. B. and Mrs. E. C. B. agreeing to pay to W. D. N. as rent • for said building $690, as follows: $50 cash, $55 on the 25th day of September following, and $55 on the 25th day of each and every month for the first six months, and $60 on the 25th day of each and every month during the last half of the aforesaid year. And it was agreed that the rent due or to become due should be a perpetual lien until paid, on all property of said lessees on said premises; and that upon the non-payment of the whole or any portion of the said rent at the time when the same is promised to be paid, or failure to keep any of the terms of said lease, the said W. D. N. might, at his election, either distrain or foreclose a chattel mortgage. This instrument was signed by E. C. B. and Mrs. E. C. B. and delivered to W. I). N., but was never signed by W. D. N. E. C. B. and Mrs. E. C. B. paid each monthly installment of rent up to and including that due December 25, on which day they abandoned the building, of which W. D. N. had notice. Thereupon W. D. N. brought suit for the rent to become due, and attached the hotel furniture of the tenants, the B.’s. On error, held, that the instrument claimed to be a lease not having been executed by W. D. N., vested no estate in the B. ’s, they were only liable for rent for the time they actually occupied the building.</p>

<p>Error to the district court for Johnston county. Tried below before Broady, J.</p> <p>People v. Sweeney, 22 N. W. Rep. [Midi.], 50; Curry v. State, 4 Neb., 545; Marion v. State, 20 Neb., 233; State v. Kogan, 62 la., 106; 2 Thompson, Trials, 1695.</p>

<p>Review : Action Commenced in County Court. Errors of law occurring at the trial will not be reviewed in the supreme court upon a petition from the county court to the district court in a civil action tried to the couifty court without a jury.</p>

<p>1. Work and Labor: Petition. A petition alleging that there is due from defendant to plaintiff, for laborer’s wages for work and labor done and performed by the plaintiff for the defendant at her request, in the years 1886, 1887, and 1888. the sum of $466.55, no part of which has been paid, states a sufficient cause of action, although subject to a motion to make more definite and certain. (Tessier v. Reed, 17 Neb., 105.)</p> <p>2. Witnesses: Refreshing Memory. A witness who had taken short-hand notes of certain testimony at a former trial is competent to testify to the facts in evidence from her own recollection, while refreshing her memory from her notes, if she states that she does remember the testimony that the witness gave on the former trial. (Lipscomb v. Lyon, 19 Neb., 511.)</p>

<p>1. Bastardy: Form of Judgment. In a bastardy case,-where the jury return a verdict of guilty against the defendant, it is ordinarily the duty of the court to charge him with such sum or sums, for the maintenance of the child, as it shall deem proper, and require him to give security to perform the order.</p> <p>2. -: Death of the Mother: Custody of Child. If the mother be dead the child may be placed in the care of the putative father, in which case no order for the payment of money will be necessary. The judgment, however, continues subject to modification during the minority of the child, and if the child is ill-treated by its father or those having its care, the court, upon the proper application, may make such further order as may be necessary for its maintenance and protection.</p> <p>3. Review. There being no bill of exceptions, and error not affirmatively appearing, the judgment is affirmed.</p>

<p>1. Sale: Alleged Defects: Statute of Frauds. In an action to recover a balance due upon 3,646f bushels of corn at thirty-five cents per bushel, the answer was a plea of the statute of frauds. The testimony showed that the corn was to be delivered at Wayne, and was so delivered on the cars and was shipped to Minneapolis to the defendant, who, without conferring with the plaintiff, ordered the corn sold for fifteen and three-fourths cents per bushel as being damaged. Held, That he was liable for the contract price, and the plea of the statute of frauds was unavailing.'</p> <p>2. - — : -: Acceptance. A buyer who accepts grain with knowledge of its quality, is bound for the contract price.</p>

<p>1. Banks: Action on Note: Corporate Capacity. The maker of a note, payable to a bank, cannot, in an action on the note, raise the question of the incorporation of the bank.</p> <p>2. Corporations: Capacity Need Not be Pleaded. At common law, a corporation may sue and be sued by the corporate name, without an averment of the act of incorporation, and the Code has not changed the common law in that regard.</p>

<p>Error to the district court for York county. Tried below before Smith, J.</p> <p>Middleton v. State, 52 Ga., 527; Childers v. State, Id., 106; Garrett v. Gonter, 42 Pa. St., 143; State v. Bell, 29 la., 316; Mooney v. State, 33 Ala., 419; State v. Garvey, 11 Minn., 154; Pigman v. State, 14 0., 555; 1 Bishop, Crina. Law, .see. 492; Tallafers v. Com., 77 Ya., 411.</p> <p>Maxwell Crim. Proa, 227; Pigman v. State, 14 O. St., 555; People v. Rogers, 18 N. Y., 9; Rafferty v. People, 66 111., 118; Polín v. State, 14 Neb., 546, 547; St. Louis v. State, 8 Id., 415; Murphy v. State, 15 Id., 389 ; Ingramv. State, 24 Id., 39; Clough v. State, 7 Id., 341; Olive v. State, 11 Id., 30; 1 Greenleaf, Ev. [14th Ed.], sec. 380; Carrol v. State, 5 Neb., 31; Brown v. State, 18 O. St., 509; Allen v. State, 10 O. St., 287.</p>

<p>Assault and Battery. One R. was convicted of assault and battery committed upon one Mrs. W. Held, That the proof fails-to sustain the charge.</p>

<p>Error to the district court for Valley county. Tried below before Tippany, J.</p> <p>Albertson v. State, 9 Neb., 433; Stewart v. Carter, 4 Id., 564; Huffman v. Kopplekom, 8 Id., 344; Athens v. Kersinr/er, 2 W. L. M., 474; Hunter v. Com’rs, 10 O. St., 519; Thorne v. Adams County, 22 Neb., 825.</p>

Tried below before Post, J. The issues made by the pleadings should have been submitted to the jury if there was any evideuce, however slight, introduced in their support. (Johnson v. if.

<p>Eminent Domain: Private Bridges: Compensation. OneB. was possessed of a bridge 180 feet in length, over the North Loup river at the town of B. The county commissioners, upon a petition duly signed, located a public road to and over said bridge, and thereby appropriated it to public use. An appraiser was afterwards appointed by the county board, who found the value of the bridge to be $610. Thecounty board rejected the claim,but on appeal to the district court this sum with interest was allowed. Meld, That the owner of the bridge was entitled to compensation. McCann v. Otoe Co., 9 Neb., 324, distinguished.</p>

<p>Error to the district court for Adams county. Tried below before Gaslin, J.</p> <p>on the questions of agency and compensation : Milligan v. Davis, 49 la., 126; Veazie v. Williams, 8 How. [U. S.], 134; Foster v. Swazey, 2 W. & M. [U. S.], 217 ; Hatch v. Taylor, 10 N. H., 538; Fouch v. Wilson, 59 Ind., 93; Moses v. Bierling, 31 N. Y., 462; McClave v. Paine, 49 Id., 561 ; Woods v. Stephens, 46 Mo., 555; Stewart v. Mather, 32 Wis., 344; Cook v. Fiske, 12 Gray [Mass.], 491; Timberman v. Craddock, 70 Mo., 638; Tyler v. Parr, 52 Id., 249 — 50; Anderson v. Cox, 16 Neb., 10; Potvin v. Curran, 13 Id., 303; Stubendorfv. Hoffman, 23 Neb., 360.</p>

<p>Error to the district court for Dakota county. Tried below before Norris, J.</p> <p>Bose v. O’l/inn 10 Neb., 364; Duffy v. Wunsch, 1 Am. Rep. [N. Y.], 514; Mallory v, Gillett, 21 N. Y., 413; Pfeiffer v. Adler, 37 Id., 164; Brown v. Weber, 38 Id., 184.</p> <p>1 Parsons, Contracts, 217, 220; 3 Id. [7th Ed.], 21; Watldns v, Perkins, 1 Ld. Rayru. [Eng.], 224; Bird v. Gammon, 3 Bing. [N. C., Eng.], 883.</p>

<p>1. Officers: Change oe Teem and Compensation: Constitutional Law. In the absence of any constitutional prohibition, or affirmative provision, fixing the term of office of any officer or his compensation, the legislature may change such term or com- , pensation, and such change of term or compensation will apply as well to the officers then in office as to those to be thereafter elected.</p> <p>2. -:--: -. Where an office is created by the constitution, the compensation of the officer can neither be increased nor diminished during his term of office.</p>

Tried below before Morris, J. contending that a. limitation of liability was valid, even where the carrier was negligent: 1 Lawson, Cont. of Carriers, eh. 5; Hart v. R. Co., 2 McCreary [U. S.], 333; Hart v. R. Co. 112 U. S., 338; St. L., I. M. & S. R. Co. v. Weakly, 8 S. W. Rep. [Ark.], 134; Harvey v. R. Co., 74 Mo., 538; Graves v. R. Co., 137 Mass., 33; Squire v. R-Go., 98 Id., 239; L. & N. R. Co. v. Sherrod, 35 Am. & Eng. R. Cases, 611; Durgin v. Am. Exp. Co., 20 Atl.

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

<p>.1. Bill of Exceptions: Motion for New Trial: Judges Exchanging. Where, after a verdict has been returned in the district court, the judge of another district who tried the cause ceased to preside and returns to his own district, before the motion for anew trial is heard and determined, the motion may be passed upon by the court where the case is pending where the judge of that district is sitting, and the court has authority to allow not exceeding forty days from the adjournment of the term to prepare and serve the bill of exceptions.</p> <p>2. -: Unavoidable Delay in Serving. When a party, without fault on his part, has been prevented from preparing and submitting to the adverse party his bill of exceptions within the time allowed by law, on account of the inability of the court reporter to furnish a transcript of the testimony in time, the judge who tried the case should sign and allow the bill when presented to him.</p> <p>3. -: Duty of Judge to Sign. When a proposed bill of exceptions is served upon the adverse party, after the period has elapsed within which it should have been submitted and signed, and the bill is returned to the party seeking its allowance without proposing any amendments or making any objections as to the time he received it, the judge should allow the bill.</p>

<p>Error to the district court for Cass county. Tried below before Chapman, J.</p> <p>Schaller v. Omaha, 23 Neb., 325; Cincinnati v. Penny, 21 O. St., 499; Pontiac v. Carter, 32 Mich., 164; Crawford v. Delaware, 7 O. St., 459.</p> <p>cases referred to in opinion, and. Reardon v. San Francisco, 7 Am. & Eng. Corp. Cases, 454.</p>

Tried below before Harrison, J. The holding in N E. Mtge. Co. v. Aughe, 12 Neb., 504, is a mere diotum and is contrary to the better rule as held ■elsewhere. (Porter v. Mount, 3 Am. Law Reg. [N. S.], 493; Wheaton v. Hibbard, 20 Johns. [N. Y.], 291; Schroeppel v. Corniny, 6 N. Y., 107; Tiffany v. Boatman’s Savings Inst., 18 Wall. [U. S.J, 375; 3 Parsons, Cont. [1866 Ed.], 127, and notes.) Especially if the payment is involuntary, it may be recovered back.

<p>1. Bailroads: Death of Employe: Alleged Negligence. Reid, That the evidence does not tend to show that the death of the plaintiff’s intestate was caused by the negligence of the defendant.</p> <p>2. Trial: Directing Verdict. When, in a case tried to a jury there is no conflict in the evidence, and no inferences about which reasonable men might differ, to be drawn from the facts and circumstances proved, the court may direct the verdict which shall be returned.</p>

<p>Appeal from the district court for Clay county. Heard below before Morris, J.</p> <p>Kansas Mfg. Co. v. Gandy, 11 Neb., 450; Lininger v. Herron, 23 Id., 199, 200; Bump, Fraud. Con., 25, and citations; McKibbin v. Martin, 64 Pa. St., 356; Humphries v. Freeman, 22 Tex., 45; Connelly v. Walker, 45 Pa. St., 449; Bentz v. Rockey, 69 Id., 76; White v. Graves, 7 J. J. Marsh. [Ky.], 523; Kissam v. Fdmondston, 1 Ired. Eq. [N. Car.], 180; Garland v. Rives, 4 Randolph [Ya.], 282; Swinford v. Rogers, 23 Cal., 234 ; Fullerton v. Viall, 42 How. Pr. [N. Y.], 294; By rant v. Young, 21 Ala., 264; Schmidt v. Opie, 33 N. J. Eq., 138; Sands v. Codwise, 4 Johns. [N. Y.], 536; Van Winkle v. Smith, 26 Miss., 491; How v. Camp, Walker’s CIi. [Mich.], 427; Jones v. Reeder, 22 Ind., Ill; Smith v. Sands, 17 Neb., 498 ; Riggs v. Murray, 2 Johns. Ch. [N. Y.], 565; Halbert v. Grant, 4 B. Mon. [Ky.], 585, and caoes.</p> <p>Kansas Mfg. Co. v. Gandy, 11 Neb., 448; Martin v. Stubbings, 20 111. App., 392; Stevenson v. Craig, 12 Neb., 469; Denison v. Gibson, 24 Mich., 187; Wheelwright v. De Peyster, 4 Edw. Ch. [N. Y.], 232; Loomer v. Wheelwright, 3 Sandf. Ch. [N. Y.], 135; Wilcox v. Todd, 64 Mo., 388; Purvis v. Carstaphan, 73 N. Car., 575; Hanford v. Bockee, 20 N. J. Eq., 101 ; Agnew v. Merritt, 10 Minn., 308; Wallace v. Hudson, .37 Tex., 456; Wolfv. Banning, 3 Minn., 202; Spear v. Ward, 20 Cal., 659 ; Neimcewicz v. Gahn, 3 Paige Ch. [N. Y.], 614; 11 Wend. [N. Y.], 312; Knight v. Whitehead, 26 Miss., 245; Vartiev. Underwood, 18 Barb. [N. Y.], 561; Smith v. Townsend, 25 N. Y.', 479; Bank of Albion v. Burns, 46 Id., 170; Burr v. Boyer, 2 Neb., 265; Schroepell v. Shaso, 3 N. Y., 457 ; Hayes v. Ward, 4 Johns. Ch. [N. Y.], 130; Smith v. Tunno, 1 McCord [S. Car.], 443 ; notes to Pees v. Berrington, 2 Vesey [Eng.], 540; Pledge v. Buss, Johnson [Eng. Ch.], 663; McCollum v. Hinckley, 9 Yt., 143; Leffingwell v. Freyer, 21 Wis., 393.</p> <p>Harkins v. Bailey, 48 Ala., 376; Elwood v. May Bros., 24 Neb., 373; Davis v. Scott, 22 Id., 154; Deitrich v. Hutchinson, 20 Id., 52; Covanhovan v. Hart, 21 Pa. St., 495; York Co. Bank v. Carter, 38 Id., 446; Lininger v. Raymond, 12 Neb., 19; Grimes v. Farrington, 19 Id., 44; Nelson v. Garey,15 Id., 531; Bierbower v. Polk, 17 Id., 268 ; Grant v. Cropsey, 8 Id., 208; Newman v. Mueller, 16 Id., 527; Betts v. Sims, 25 Id., 181.</p>

<p>Appeal from the district court for Lancaster county. Heard below before Chapman, J.</p> <p>Shuman v. Willets, 17 Neb., 478; Haines v. Spanogle, Id., 637; Hanlon v. 'Wilson, 10 Id., 138; Fisher v. Moolich, 13 Wis., 358; Seh. Fist. v. Maeloon, 4 Id., 79; Bomier v. Caldwell, 8 Mich., 463; McHugh v. Smiley, 17 Neb., 620; Uhl v. May, 5 Id., 157; Filley v. Hopkins, 1 Id., 134; Pa7'ks v. Jackson, 11 Wend. [N. Y.], 464; McKinziev. Pei'rill, 15 O. St., 168.</p>

<p>Error to the district court for Valley county. Tried below before Harrison, J.</p> <p>Fisher v. Herron, 22 Neb., 183; Aultman v. Obermeyer, 6 Neb., 265 ; Wake v. Gh'iffin, 9 Id., 47; Monteith v. Bax, 4 Id., 170 i Thompson v. Lorenig, 13 Id., 386; First Natl. Bank v. Bartlett, 8 Id., 329; Hoagland v. Wilson, 15 Id., 322; Collins v. Mack, 31 Ark., 685, 694; Lucas v. Flinn 35 'la., 9-14; Payne v. State, 60 Ala., 80-86; Holbrook v. Holbrook, 30 Vt., 433; Bay v. Bell, 24 111., 444-454; Nute v. Nute, 41 N. H., 60; Bressler v. People, 117 111., 422; State v. McDonald, 65 Me., 466; People v. Devine, 44 Cal., 452-459; Stephens v. People, 19 N. Y., 549.</p>

<p>1. Limitation of Actions: Agency : Conversion. When an agent is appointed to collect money and remit to the principal alter deducting his charges, no time being stated when the remittance is to be made, the statute of limitation commences to run in favor of the agent from the time he receives the money.</p> <p>2. -. Mere silence or concealment by the defendant, without affirmative misrepresentation, will not toll the statute.</p>

<p>Error to the district court for Cherry county. Tried below before Kink aid, J.</p> <p>Foi't Leavenworth P. Co. v. Lowe, 114 U. S., 525; U. 8. v. Cornell, 2 Mason [U. S.], 60; Commonxoealth v. Clary, 8 Mass., 72; Mitchell v. Tibbetts, 17 Pick. [Mass.], 298; 2 Story, Const., sec. 1225; 1 Kent Com., 429; Sinks v. Reese, 19 O. St., 306; 1 Desty, Taxation, 55; 6 Op. Att’y Genis., 577.</p>

<p>1. Schools: Money .Can Be Drawn from the treasury of a school district in the payment of contractors for the erection of a school house only by orders on the treasurer signed by the director and countersigned by the moderator. (State, ex rel. CooJc, r. Bloom, 19 Neb., 562.</p> <p>2. -: Mandamus. "Where the treasurer of the district, having funds in his hands for that purpose, refuses to pay such order, issued in full compliance with the provisions of law, peremptory mandamus will enforce the payment.</p>

<p>Error to the district court for Douglas county. Tried below before Doane, J.</p> <p>Burnett v. 72. Co., 16 Neb., 336; Lincoln v. Gillilan, 18 Id., 117; Pendils v. 72. Co., 34 N. Y. Sup., 481; Keller v. 72. Cb., 24 How. [N. Y.], 172; Hoyt v. Hudson, 41 Wis., 105; New Jersey Ex. Co. v. Nichols, 33 N. J. L., 434; Hoth v. Peters, 55 Wis., 405; Pa. 72. 72. Co. v. Bighter, 42 N. J. L., 180; Shearman & R., Neg., sec. 11; Wharton, Neg., sec. 420; 1 Greenl. Ev., sec. 88; Omaha Horse Ry. v. Doolittle, 7 Neb., 481; Cooley, Torts, 812.</p> <p>A. & N. R. Co. v. Bailey, 11 Neb., 336; Omaha Horse Ry. Co. v. Doolittle, 7 Id., 481; Burnett v. R. Co., 16 Id., 336; 'Dinooln v. Walker, 18 Id., 247.</p>

Tried below before Gaskin, J. A cause must be tried in the district courUon the same issues as in the lower court, and a motion to strike .from the pleadings such matters as were not raised below is proper. (O’Leary v. Iskey, 12 Neb., 137; Courtnay v. Price, Id., 188; Fuller v. Schroeder, 20 Id., 636; Sells v. Haggard, 21 Id., 360.) Plaintiff was not damaged because he had paid nothing and was insolvent; hence, he could not recover.

<p>Garnishment: Property Assigned by Garnishees. . In an action under section 225 of the Code against garnishees who had denied any indebtedness to the judgment debtor, and the fa'-ts relied upon by them for a defense clearly showed that they had money of the debtor accredited to them in their bank account, subject to garnishment, though assigned to avoid that remedy, and the claimants appeared and testified for the defense, with judgment for the plaintiff, held, no error, and the judgment below affirmed.</p>

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

<p>Error to the district court for Lancaster county. Tried below before Field, J.</p> <p>Foxworthy v. Hastings, 23 Neb., 778; Touealih v. Omaha, 25 Id., 825; Holmberg v. Handle, 16 Id., 337; Liberman v. State, 26 Id., 466; Woods v. Colfax Co., 10 Id., 554; Gudtner v. Idilpatricle, 14 Id., 351; Ifonell v. Terwilliger, 8 Id., 362; Aseh v. Wiley, 16 Id., 43.</p> <p>Fractional Sch. Fist. v. Joint Board, 27 Mich., 3; Stewart v. ICalamazoo, 30 Id., 69; People v. Maynard, 15 Id., 463; Shumway v. Bennett, 29 Id., 452; South Platte Land Co. v. Buffalo Co., 15 Neb., 605; Blanchard v. Bissell, 11 O. St., 96; People v. Carpenter, 24 N. Y., 86; Woo Sung v. People, 107 111., 653; Schriber v. Langdale, 66 Wis., 616 ;■ Dillon, Mun. Corp., sec. 183; Powers v. Co. Com’rs., 8 O. St., 285; Turner v. Althaus, 6 Neb., 54; Kountze v. Omaha, 5 Dillon [U. S.], 443; B. Co. v. Com’rs, 98 U. S., 545; State Trenton Iron Co. v. Yard, 13 Yroom [N. J.], 363; State v. Piper, 17 Neb., 617; Ex rel. Selden v. Berka, 20 Id., 379; Pleuler v. State, 11 Id., 547; Jones v. Graham, 16 Id., 74; Boggs v. Washington Co., 10 Id., 300; State v. Page, 12 Id., 387 ; State v. Palmer, 10 Id., 206 ; People v. ■McCollum, 1 Id., 182; Ballou v. Black, 17 Id., 392; State v. Beam, 16 Id., 683; Com’rs of Hamilton Co. v. Miguels, 7 O. St., 109; Holmes v. Mattoon, 111 111., 28; Chester v. Wilson, 15 111. App., 239; Com’rs v. Kelsey, 120 111., 484 ; Cooley, Const. Lim., 192.</p>

<p>1. Seal Estate: Possession Notice to Pt7kchasbb. A party buying real property which is in the actual possession and occupancy of another person, is charged with notice of any right, title, or interest which such occupant has in such property.</p> <p>2. The evidence examined, and held, to sustain the findings and decree of the lower court.</p>

<p>Ejectment: Break in Chain of Title Supplied by Parol.In an action of ejectment, where a deed was omitted in the chain, of the defendant’s title, but there was proof tending to show that such a deed had, in fact, been executed but not recorded, held, that a judgment in favor of the defendant conformed to the testimony and is affirmed.</p>

<p>1. Instructions. Where instructions requested by a party have been previously given in substance by the court on its,own motion, it is not error to refuse to give the instructions so requested.</p> <p>2. -. Instructions requested must be applicable to the testimony and state the law correctly in order to predicate error upon the refusal to give the same.</p>

Tried below before Doane, J. The adverse nature of the possession as well as the fact thereof must be shown by a clear and positive proof. (Colvin v. B. V. Land Ass’n, 23 Neb., 80.) Possession by one other than the owner is always presumed to be permissive and not adverse. (Angelí, Lim., sec. 384.) The occupant must hold the property exclusively and adversely to the true owner and to the world.

<p>Stock: Pledgee Entitled to Dividends. One W. loaned a. stockholder in a national bank the sum of $1,000, for -which such stockholder gave his note due in one year with interest, and to secure the payment of said note, assigned a certificate for ten shares of stock in such bank. At the expiration of the year new stock was issued, and ten shares were transferred as security for said debt, the certificate of stock containing a power of attorney to the cashier of the bank to transfer said stock on the books of the bank, etc. Most of the officers of the bank had notice of the assignment to W. of the stock as security. The principal of the note was afterwards paid, but the interest being unpaid, an action was brought to recover a dividend declared while W. was the assignee of the stock. The principal defense of the hank was that all transfers must he made on the books of the hank. Held, That as the officers of the bank had notice that W. was holding the stock as security, and made no objection, that they must pay the dividend to the party entitled to it —the person then holding the stock, and that the rules of the hank to the contrary constituted no defense.</p>

<p>Appeal from the district court for Lancaster county. Heard below before Chapman, J.</p> <p>Agnes v. Newark, 37 N. J. L., 415; Bogert v. Elizabeth, 27 N. J. Eq., 568; State v. Newark, 3 Dutch. [N. J. L.], 191; Omaha v. Sehaller, 26 Neb., 526; Ticle-water Co. v. Costar, 3 C. E. Green [N. J.], 518; Morrison v. Hershire, 32 la., 271; Wolf v. Keokuk, 48 Id., 129; Springfield v. Green, 120 111., 275-6; Hanscom v. Omaha, 11 Neb., 42, 43; Lembeck v. Jersey City, 3 Stew. [N. J. Eq.], 554; Washington Ave., 69 Pa. St., 352; Hartford v. West Middle List., 45 Conn., 462; Dyar v. Farm Village Corp., 70 Me., 527; Chicago v. Larned, 34 111., 203; Johnson v. Milwaukee, 40 Wis., 316; State v. Elizabeth, 8 Yroom [N. J.], 142.</p> <p>Springfield v. Green, 120 111., 269; Williams v. Mayor, 2 Mich., 560; People v. Mayor, 4 N. ~Y., 419 ; Nichols v. Bridgeport, 23 Conn., 189; Wray v. Pittsbu/rg, 46 Pa. St., 365 ; Burnes v. Atchison, 2 Kan., 454; St. Joseph v. O’Donoghue, 31 Mo., 345 ; Burnett v. Sacramento, 12 Cal., 76; Yeatman v. Crandall, 11 La. Ann., 220 ; Maloy v. Marietta, 11 O. St., 636; State v. Bean, 23 N. J. L., 335; Bondv. Kenosha, 17 Wis., 284; City of Fairfield v. Ratcliff, 20 la., 396; McGehee v. Mathis, 21 Ark., 40; Palmer v. Stumph, 29 Ind., 329; Borgan v. Boston, 12 Allen [Mass.], 234; Cooley, Tax,, 449-50; Cooley, Const. Lim., 449, 508; Weeks v. Milwaukee, 10 Wis., 258; Touzalinv. City, 25 Neb., 817; Kittle v. Shervin, 11 Id., 75-7 ; B. &. M. R. Co. v. Seward, 10 Id., 216 ; Welty, Assessments, secs. 302, 314, 320 ; Burk v. Altshcul, 6 Pac. Rep. [Cal.], 393; In re Bowden, 88 N. Y., 553 ; In re Merriam, 84 Id., 596 ; Cuming v. Grand Rapids, 46 Mich., 159 ; Beniteau v. Detroit, 41 Id., 116; Strowbridge v. City, 8 Or., 79.</p>

<p>1. Mandamus: Issue at Chambers. A judge of the district court at chambers granted an alternative writ of mandamus to which the respondent made a return, and the case was submitted on the writ and returned to the judge while holding court in a county adjoining that in which the mandamus proceedings were instituted. The return was held insufficient and a peremptory writ awarded. Held, There was no issue of fact to be submitted to a jury and a peremptory writ was properly issued.</p> <p>2. New Counties : Officers. Where a new county is created, the county commissioners elected at the election ordered by the governor for the organization of the county, merely continue in office until the next general election for such officers and until their successors axe elected and qualified. (State v. Field, 26 Neb., 393.)</p>

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

<p>Appeal from the district court for Washington county. Heard below before Clarkson, J. '</p> <p>Christy v. Vest, 36 la., 285; Gary,Prob. Law, 27; Noakes v. Sivitzer, 12 Neb., 160; Shipman v. Butterfield, 11 N. W. Eep. [Mich.], 283; Ex parte Maxwell, 79 Am. Dec., 65; Russell v. Hartt, 87 N. Y., 19; Jaeobs v. Morrow, 21 Neb., 233; Jones v. Green, 1 Wall. [U. S.], 330; Board of Public Works v. Columbia College, 17 Id., 530.</p> <p>M. P. R. Co. v. McCartney, 1 Neb., 398; Mills v. Miller, 2 Id., 317; Crópsey v. Wiggenhorn, 3 Id., 117; Uorbach v. Miller, 4 Id., 43; Bazzo v. Wallace, 16 Id., 293; Atkinson v. Plasty, 21 Id., 663.</p>

<p>Cheeks: A Yerbal Acceptance of a check by the drawee is valid and binding as if the acceptance was in writing.</p>

<p>Error to the district court for Sarpy county. Tried below before Clarkson, J.</p> <p>as to the forfeiture clause: Gorton v. Ins. Co., 39 Wis., 121; Shakey v. Ins. Co., 4.4 la., 540, and eases; Am. Ins. Co. v. Story, 8 Ins. Law Jour. [Mich.], 691 and cases; Garlick v. Ins. Co., 44 la., 553; Blackerby v. Ins. Co., 15 Ins. Law Jour. [Ky.], 556; Wall v. Ins. Co., 36 N. Y., 157; Williams v. Ins. Co., 19 Mich., 451; Muhleman v. Ins. Co., 6 W. Ya., 508; Watrous v. Ins. Co., 35 la., 582; Am. Ins. Co. v. Leonard, 80 Ind., 272; McIntyre v. Ins. Co., 13 Ins. Law Jour., 216; Thompson v. Ins. Co., 104 U. S., 252; Willcuts v. Ins. Co., 81 Ind., 300; Klein v. Ins. Co., 104 U. S., 88; Knickerbocker Life Ins. Co. v. Pendleton, 112 Id., 696; Beadle v. Ins. Co., 3 Hill [N Y.], 161; Wheeler v. Ins. Co., 82 N. Y., 543; Holly v. Ins. Co., 105 Id., 437; Wall v. Ins. Co., 36 Id., 157; American Ins. Co. v. Leonard, 180 Ind., 272; Shrimp v. Ins. Co., 17 Ins. Law Jour., 703; N. W. Mut. L. Ins. Co. v. Amerman, 119 111., 329; Bush v. Ins. Co., 2 Th. & C. [N. Y.], 629; Morse v. Ins. Co., 5 Id., 409; Q'itchett v. Ins. Co., 9 Id., 594; Armstrong v. Ins. Co., 12 Id., 675; Wilson v. Ins. Co., 4 R. L, 141; Mitchell v. Ins. Co., 51 Pa. St., 402; Vose v.'Ins. Co., 6 Cush. [Mass.], 42; Chase v. Ins. Co., 22 Barb. [N. Y.], 527; Bartholomew v. Ins Co., 25 la., 507; Healey v. Ins. Co., 5 Nev., 268; Winnesheik Ins. Co. v. Holzgrafe, 53 111., 516; Dickinson v. Ins. Co., 41 la., 286; Stockton v. Ins. Go., 33 La. Ann., 577; Todd v. Ins. Co., 34 Id., 63; L. L. & G. Ins. Co. v. Van Os., 63 Miss., 431; Hambletonv. Ins. Co., 6 Bissell [U. S.], 91; Hollisv. Ins. Co., 65 la., 454. As to proof of loss and alleged waiver thereof: German Ins. Co. v. Heiduk, 30 Neb., 288; Mehurin v. Stone, 37 O. St., 58; Palmer v. Sawyer, 114 Mass., 13; 2 Chitty, PI. [7th Ed.], 459 ; Nichols v. Larkin, 79 Mo., 264; Lanitz v. King, 6 S. W. Rep. [Mo.], 263; Welsh v. Ins. Co., 413; Sch. List. v. Shoemaker, 5 Neb., 37; B.& M. R. Co. v. Harris, 8 Id., 142'; Wilson v. Butler, 33 Eng. Com. Eaw, 956; P., W. & B. R. Co. v. Howard, 13 How. [U. S.], 307 ; Owen v. Ins. Co., 57 Barb. [N. Y.], 521; Wood, Ins., sec. 411; May, Ins., 465; Planters Ins. Co. v. Deford, 38 Md., 400; Troy F. Ins. Co.v. Carpenter, 4 Wis., 25; Harmony v. Brigham, 2 Kern. [N. Y.], 99; Beatty v. Ins. Co., 66 Pa. St., 9; Smith v. Ins. Co., 1 Allen [Mass.], 297; Connell v. Ins. Co., 18 Wis., 387; Knickerbocker Ins. Co. v. Gould, 80 111., 388; Brink v. Ins. Co., 6 Ins. L. Jour., 707 [S. C., 70 N. Y., 593] ; Underwood v. Ins. Co., 57 N. Y., 500; Bumstead v. Ins. Co., 12 N. Y., 81; Worsley v. Wood, 6 T. R. [D. & E.’s], 710.</p> <p>Wood, Ins. [2d Ed.], 75-6; Carson v. Ins. Co., 62 la., 433.</p>

<p>Error to the district court for Dakota county. Tried below before Powers, J.</p> <p>Niles v. Frier, 35 la., 41; Monty v.Arneson, 25 Id., 383; State v. Harris, 36 Id., 137; Wahemanv. Chambers, 69 Id., 169; Fear son v. Distillery, 72 Id.,-348; Welton v. Mo., 91 U: v. Harris, 8 Id., 142; Wilson v. Butler, 33 Eng. Com. S., 275; Co. of Mobile v. Kimball, 102 Id., 691; Brown v. Houston, 114 Id., 622; Cooley v. Board, 12 How. [U. S.J, 299; Bowman v. R. Co., 125 U. S., 465; Cooper Man. Co. v. Ferguson, 113 Id., 727; Slate v. Saunders, 19 Kan., 127; State v. Stilsing, 20 Atl. Rep. [N. J.], 65.</p> <p>Kanaga v. Taylor, 7 O. St., 142; Gassett v. Godfrey, 26 N. H., 415; Shelton v. Marshall, 16 Tex., 344; Sherlock v. Ailing, 93 U. S., 99 ; Bartemeyer v. Iowa, 18 Wall. ^U. S.], 129; Beer Co. v. Mass., 97 U. S., 25; Kidd v. Pearson, 128 Id., 1; Pearson v. Distillery, 72 la., 348.</p>

<p>Error to the district court for Douglas county. Tried below before Clarkson, J.</p> <p>Orr v. Seaton, 1 Neb., 107; Mulhollan v. 'Scroggin, .8 Id., 203; Sang v. Lee, 20 Id., 667; Woodward v. Backus, 20 Cal., 138; Freeman, Judgmts., secs. 99, 102, 106, 109, 540, 541; Bailey v. Taaffe, 29 Cal., 423; Wooster v. Woodhull, 1 Johns. CIl [N. Y.], 539; Adams v. Hickman, 43 Mo., 168; Hale v. Bender, 13 Neb., 66; Haggerty o. Walker, 21 Id., 596; Clutz v. Carter, 12 Id., 113; Stevens v. Boss, 1 Cal., 94; Cockle Mfg. Co. v. Clark, 23 Neb., 705; 1 Greenl. Ev., sec. 275; Weinberger v. Ins. Co., 5 So. Rep. [La.], 728; Conrowv. Conrow, 16 Atl. Rep. [Pa.], 522; Miller v. Butterfield, 21 Pac. Rep. [Cal.], 543; Genet v. Canal Co., 24 J. & S. [N. Y.], 27.</p>

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

<p>1. Bill of Exceptions: Extension of Time for Preparing.. Where a district court has given a party forty days from the adjournment of a term to reduce his exceptions to writing, the judge has authority to extend the time in which to prepare and serve a hill of exceptions, for a period not exceeding forty days additional, when it appears that the party seeking the bill has used due diligence. Such power exists, notwithstanding the period first allowed expired before the application for an extension of time was made.</p> <p>2. -: -: Notice of such an application to the adverse party is not indispensable to jurisdiction.</p> <p>3. Continuance: Discretionary with Trial Court. An application for the postponement of a trial to a later day in the term, or for the continuance of a cause, is addressed to the sound legal discretion of the court, and the ruling thereon will not be disturbed, in the absence of a showing that there has been an abuse of dircretion.</p> <p>4. A motion for a new trial must he filed at the term of court the verdict is rendered, and, except for newly discovered evidence, within three days after the return of the verdict, unless unavoidably prevented.</p>

<p>1. The evidence considered, and held, to sustain the verdict and judgment.</p> <p>2. The instructions given, and those requested and refused, examined, and held, properly given and refused.</p>

<p>Exemptions: Head of Family: Wife of Disabled Husband Is. A husband and wife were living together as such. The husband was, and for the two years last past had been, by reason' of being from his childhood crippled in his right arm, and having his left arm broken by accident, and afflicted of rheumatism, neuralgia, and erysipelas, unable to do any kind of work or labor, and being entirely without money, property, or means, beside the clothes which he wore, had neither done nor contributed anythingfor the support of the family; while the wife, during the whole of said time, had, by renting a house, which she did in her own name, subletting rooms therein, and by keeping boarders, sol'ely supported the family. Held, That, for the purposes contemplated by sections 521, 522, and 523 of the Code of Civil Procedure, the wife was the head of the family.</p>

<p>1. Mechanics’ Liens: Estoppel to Deny Title. In an action by tbe S. O. L. Co. to foreclose a mechanic’s lien upon a lot, therein described, against M. S. L. and E. A. L., in the petition it was alleged that at the date of the lien (June 5, 1888), M. S. L. and E. A. L. were the owners of said lot in fee simple. M. S. L. and E. A. L. answered by a general denial. Afterwards, the C. I. Co. presented a petition alleging that M. S. L. and E. A. L. sold and conveyed to said C. I. Co., on July 1, 1889, all their right, title, and interest in and to said lot, and praying to be permitted to defend the action under the answer filed by Jf. S. L. and E. A. L., which was granted. A decree being rendered for the plaintiff, on appeal by the C. I. Co., held, that it was estopped to deny either its own title or the title of M. S. L. and E. A. L. in the said lot.</p> <p>9. The evidence examined, and held, to sustain the verdict.</p>

<p>Error to the district court for Burt county. Tried below before Wakeley, J.</p> <p>State, ex rel. A. & N. JR. Co., v. Board Co. Com’rs, 4 Neb., 537; Smails v. White, Id., 353; Hurford v. Omaha, Id., 350; 2 Dillon, Mun. Corp., sec. 673.</p>

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

<p>Original application for injunction.</p> <p>By. Co. v. Prescott, 16 Wall. [U. S.], 603; By. Co. v. McShane, 22 Id., 444; N. P. B. Co. v. Traill Co., 115 U. S., 600; Van Brocklin v. Anderson, 117 Id., 151.</p> <p>Hagenbuck v. Beed, 3 Neb., 17; Eoe v. State, 21 Ga., 50; Cody v. Bernard, 45 Id., 85; Scofield v. Perkerson, 46 Id., 350; Pulían v. BCinsinger, 2 Abb. [U. S.], 94; South Platte Band Co. v. Crete, 11 Neb., 344; Craioford v. Burrell, 53 Pa. St., 219; Tucker v. Ferguson, 22 Wall. [U. S.], 573; Adsitv.Leib, 76 111., 198; Peoria v. Kidder, 26 Id., 351; Huston, ete., B. Co. v. Presidio Co., 53 Tex., 518; Harrison v. Vines, 46 Id., 15; Bellinger v. White, 5 Neb., 399; White v. 'R. Co., Id., 398 ; Wallace v. Seymour, 7 O., 156; 3 Pomeroy, Eq. Jur., sec. 1399; Cooley, Tax., 543; 1 High, Injunctions, secs. 497, 498.</p>

<p>Error to the district court for Fillmore county. Tried below before Morris, J.</p> <p>Coke Dittleton; secs. 2906, 305 -,Pulteney v. Townson, 2W. Blackstone [Eng.], 1226; Kirkland v. Krebs, 34 Md., 93; Fagan v. Bently, 32 Ga., 534; Dennis v. Bank, 19 Neb., 677; Wegman v. Childs, 41 N. Y., 159; TJlshafer v. Stewart, 71 Pa. St., 170; Woodward v. Baker, 10 Or., 491; Elasser v. Plaines, 18 Atl. [N. J.], 1095.</p> <p>Tessier v. Englehart, 18 Neb., 167; Eaton v. Hasty, 6 Id., 424; Marx v. Kilpatrick, 25 Id., 107.</p>

<p>Cheeks: Alleged Overpayment. In an action to recover an overpayment of money, it appeared that the payment had been made by a check on a bank for $160, although the drawee claimed that it was for $60, and no more; that he had received no greater sum thereon, ffeld, That the proof clearly established the fact that the check was for $160, and that he had received that amount.</p>

<p>Tax Liens: Decree of Foreclosure by Default: Rights of Grantee of Unrecorded Deed. One S. conveyed certain real estate to Mrs. W., but through neglect the deed was not recorded. W. took possession of the land aDd rented the same to one B. One A. thereupon brought an'action to foreclose atax lien and made S. and B. parties, but not W. A decree foreclosing the tax lien was thereupon taken by default. In an action by W. to vacate the decree, and for leave to intervene and answer, held, that the vacation of the decree and order permitting intervention, were properly made.</p>

<p>Appeal from the district court' for Butler county. Heard below before Post, J.</p>

Original application for mandamus. The franchise ordinance is a contract, and is to be interpreted in the light of the surrounding circumstances, and the intent of the parties. (Singer Mfg.

<p>Error to the district court for Hamilton county. Tried below before Norval, J.</p> <p>Freeman v. Burles, 16 Neb., 328; Brownv. Goodyear,29 Id., 376; Crowell v. Galloway, 3 Id., 215; Gwynne, Sheriffs, 473-7; Stewart v. Stringer, 41 Mo., 400; Knowles v. Lord, 4 Whart. [Pa.], 500; Slayton v. Chester, 4 Mass., 478; Messer v. Bailey, 31 N. H., 9; White River Bank v. Doivners, 29 Vt., 332; Irons v. Keystone Mfg. Co., 61 la., 406; Rowell v. Klein, 44Ind., 290; "Wade, Notice, secs. 1378, 1385 ; Johnson v. Jones, 2 Neb., 133; Cheever v. Lane, 3 Cole [la.], 296.</p> <p>Aultman v. Steinman, 8 Neb., 109; Cobbey v. Wright, 23 Id., 250; Owens v. Ranstead, 22 111., 161; Wendell v. Mugridge, 19 N. H., 109; Waring v. McKinley, 62 Barb. [N. Y.], 612; Wheeler v. R. Co., 24 Id., 414.</p>

<p>negotiable Instruments: Note eor Property Purchased Under Foreclosure: Sale Vacated. One.S., holding a second lien on mortgaged premises, purchased the property at a sale under the decree of foreclosure and paid the costs of the action, but failed to pay the purchase money. Afterwards, he, with others, executed a note to the bank of A. for the amount of the purchase money for the use of the sheriff and delivered the same to one F., to be held until a motion to set aside the sale should be determined. The motion was overruled and the • sale confirmed, whereupon the sheriff took the note to the bank and obtained the money thereon. The sale was afterwards set aside on a petition thereafter filed. The bank had no interest in the foreclosure proceedings, but simply loaned the money. Meld, That it was entitled to recover.</p>

<p>Infants: Disaffirming.Contracts After Majority: Reasonable Time. An infant who had signed a note as surety dis-affirmed the contract a year and a half after coming of age. The court below found this was within a reasonable time. Held, That under the stipulation of facts in the case it did not appear that the judgment was erroneous.</p>

<p>1. Pleading: Action foe Breach of Contract. In an action for breach of contract, the petition sets up the terms of the contract, avers performance on the part of the plantiffs of the conditions to be performed on their part, and alleges non-performance by the defendant of the stipulations on his part to be kept and performed. Held, Sufficient as against a demurrer.</p> <p>2. Evidence, held, sufficient to sustain the verdict.</p>

<p>1. Usury: Bona Fide Purchase: Evidence. In the foreclosure by A. R. of a mortgage of real estate to secure notes given by M. S. for usurious interest on a loan of §1,000 from B. M., the defense was usury, and a denial of the purchase for value before maturity, and without notice. The plaintiff introduced astipulation in evidence that “ the mortgagor’s husband, if present as a witness, would testify that the entire considerations o£ the note and mortgage were given for usurious interest to secure the loan from B. M., and that such statement may be used in evidence on the trial.” No contradictory evidence was offered. Held, That the admission of this evidence was not reversible error, on appeal, and that the burden of proof of purchase before maturity without notice of usury, was on the plaintiff.</p> <p>2. -: -: Evi lence examined, and found to sustain the defense that the plaintiff was not a bona iU\e holder.</p>

<p>1. Judgment by Confession. Under secs. 433 and 436 of the Civil Code, judgments by confession can only be entered by the debtor personally with the assent of the creditor; or by an attorney who shall, at the time of making the confession, produce the warrant of attorney for making the same, the original or a copy to be filed with the clerk of the court in which judgment is entered.</p> <p>2. -. Held, That a sale upon execution issued on judgment confessed in a county court, not in compliance with the provisions of the statute, was void.</p>

<p>Error to the district court for Kearney county. Tried below before Gaslin, J.</p> <p>Worthen Collector v. .Quinn, 12 S. W. Rep. [Ark.], 156.</p> <p>Binlcert v. R. Co.T 98 111., 218; Ream v. Stone, 102 Id., 359; Kirkwood v,. Magill, 6 Kan., 540.</p>

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

<p>Error to the district court for Gage county. Tried below before Broady, J.</p> <p>Kempton v. State Ins. Co., 17 N. W. Rep. [Ia.], 194; Washington Fire Ins. Co. v. Kelly, 32 Md., 421; Kitts v. Ins. Co., 56 Barb. [N. Y.], 184; Morrison v. Ins. Co., 18 Mo., 265; Phelps v. Ins. Co., 9 Bosw. [N. Y.], 404; Trumbull v. Ins. Co., 12 O., 305; Stetson v. Ins. Co., 4 Mass., 330; Ilill v. Mut. Pro. Co., 59 Pa. St., 474; Masters v. Ins. Co., 11 Barb. [N. Y.], 624; Reynolds v. Ins. Co., 34 Md., 280; Brown v. King, 5 Met. [Mass.], 173; Proprietors v. McFarland, 12 Mass., 325; Sellers v. Hayes, 17 Ala., 749; Phoenix Ins. Co. v. Barnd, 16 Neb., 90; Gibson,v. Parlin, 13 Id., 292.</p> <p>Carpenter v. Ins. Co., 16 Pet. [U. S.], 495; Byers v. Ins. Co., 35 O. St., 615 ; Ins. Co. v. Archer, 36 Id., 612; Davidson v. Ins. Co., 32 N. W. Rep. [Ia.], 514; Dupreau v. Ins. Co., 5 L. R. A. [Mich.], 671; W. Mass. Ins. Co. v. Piker, 10 Mich., 279; Johannes v. Standard Fire Office, 70 Wis., 196; Germond v. Ins. Co., 2 Hun [N. Y.], 540; II. & G. I. R. Co. v. Ingalls, 15 Neb;, 128 ; Seton v. Slade, 7 Yesey [Eng.], 265; Craig v. Leslie, 3 Wheat. [U. S.], 577; JBtmt Ins. Co. v. Tyler, 16 Wend. [N. Y.], 385; Wood v. N. W. Ins. Co., 46 N. Y., 421; Farmers Mut. Ins. Co. v. McCulloch, 21 O. St., 176.</p>

<p>Error to the district court for Platte county. Tried below before Post, J.</p> <p>Rexford v. Knight, 15 Barb. [N. Y.], 627; M. & O. R. Co. v. Malone, 46 Ala., 391; People v. Nevada, 6 Cal., 143; Gales-burg v. Hawkinson, 75 111., 152.</p> <p>Columbus v. Ins. Co., 25 Neb., 83; Wahoo v. Dickinson, 23 Id., 426.</p>

<p>1. Pleading. Allegations of fact, constituting a defense, set up in defendant’s answer, without reply from the plaintiff, and submitted to the jury over defendant’s objection, held, error in not requiring a reply before the entry of judgment.</p> <p>2. Evidence examined and considered, and found insufficient to support the verdict under the instructions of the court.</p>

<p>Appeal from the district court for Douglas county. Heard below before Wakeley, J.</p> <p>Mutuality in the contract is established where one party only signs. (Miller v. Cameron, 15 Atl. Rep. [N. J.], 842; Justice v. Lang, 42 N. Y., 493; Thayer v. Luce, 22 O. St., 62; Clason v. Bailey, 14 Johns. [N. Y.],484; Garlrellv. Stafford, 12 Neb., 552; Lowber v. Cornnit, 36 Wis., 176; Laythoarp v. Bryant, 2 Bing. [N. C., Eng.], 736*; Fry, Spec. Per. of Cont., 201, 202; Morin v. Martz, 13 Minn., 191; Brumfield v. Carson, 33 Ind., 94; Reed, Stat. of Frauds, sec. 359; Hseley v. Malchow, 9 Neb., 174; Connor v. Hingtgen, 19 Id., 472; Burt v. Wilson, 28 Cal., 632; Ogden v. Ogden, 4 O. St., 182; Switzer v. Sidles, 3 Gil. [111.], 529; Talbot v. Bowen, 10 Am. Dec. [Ky.], 747; Worrall v. Munn, 5 N. Y., 229; 2 Kent. Com., 510; Mc-Crea v. Purmont, 16 Wend. [N. Y.], 460; Old Col. By. Corp. v. Evans, 6 Gray [Mass.], 25; Barstow v. Gray, 3 Greenl. [Me.], 409; Brown, Stat. of Frauds, sec. 366.) A contract in writing may be applied to its proper subject-matter by oral evidence. (Butler v. Davis, 5 Neb., 521; Watson v. Baker, 9 S. W. Rep. [Tex.], 867; Sanborn v. Noehin, 20 Minn., 178; Mansfield v. Hodgdon, 17 N. E. Rep., [Mass.], 544; Thayer v. Luce, 22 O. St., 62; Marriner v. Dennison, 20 Pac. Rep. [Cal.], 386; Black v. Pratt Coal Co., 5 S. Rep. [Ala.], 89; Prater v. Miller, 3 Hawks[N. Car.], 628; Wiswall v. McGowan, 1 Hoff.Ch. [N. Y.], 126.) The description of the property is sufficient. (Bradley v. Packet Co., 13 Pet. [U. S.], 89; Vindquest v. Perky, 16 Neb., 284; Connor v. Hingtgen, . 19 Id., 472.) The statute of frauds must be pleaded specially. (Eiseley v. Malchow, 9 Neb., 174; Gillespie v. Moon, 2 Johns. Ch. [N. Y.], 585; Steele v. Bussell, 5 Neb., 212; Blanchard v. Jamison, 14 Id., 244; B. Co, v. Hayes, 13 Id., 491; Jenkinson v. Monroe, 39 N. W. Rep. [Mich.], 854; Bussell v. Bosenbaum, 24 Neb., 769; Curtis v. Cutler, 7 Td., 318; Gibson v. Parlin, 13 Id., 292.) Adverse possession is established against Crawford and his heirs. (Hardy v. Bid-dell, 24 Neb., 670.)</p> <p>as to the signatures required by the statute of frauds: Worratl v. Munn, 1 Seld. [N. Y.], 244; Ballard v. Walker, 3 Johns. •Cases [N.- Y.], 60; Boget v. Merritt, 2 Caines [N. Y.], 120; Clason v. Bailey, 14 Johns. [N. Y.], 486, and cases; ■Gartrell v. Stafford, 12 Neb., 552; Becker v. Mason, 2 Pac. Rep. [Kan.], 850; Grafton v. Cummings, 99 U. S., 100; Connor v. Hingtgen, 19 Neb., 472. As to the first formal point discussed in the opinion: 2 Story’s Eq., secs. 151-2, ■ 770; Glass v. Halbert, 102 Mass., 24; Elder v. Elder, 10 Me., 80; Osborn v. Phelps, 19 Conn., 83; Westbrook v. Harbeson, 2 McCord’s Eq. [S. Car.], 112*; Best v. Stow, 2 •Sandf. Ch. [N. Y.], 292; Henkle v. B. E. A., 1 "Vesay [Eng.], 317; Motteau v. L. A. Co., 1 Atk. [Eng.], 545. As to the second formal point discussed in opinion : Hamilton v. Harvey, 121 111., 469; Hammer v. MeHldowney, 46 Pa. St., 334; Eggleston v.- Wagner, 10 N. W. Rep. [Mich.], 37 ; Ryan v. Davis, 6 Pac. Rep. [Mont.], 341; Nippolt v. Kammon, 40 N. W. Rep. [Minn.], 267; Holthouse Appeal, 12 Atl. Rep. [Pa.], 340; Waters v. Baker, 9 S. W. Rep. [Tex.], 867; Preston v. Preston, 95 U. S., 202; Capps v. Holt, 5 Jones Eq. [N. Car.], 153; Jordan v. Fay, 40 Me., 130; Bowers v. Andrews, 52 Miss., 596; Fulton o. Robinson, 55 Tex., 404; Johnson v. Granger, 51 Id., 42; Baldwin v. Kerl, 46 Ind., 433; Miller v. Campbell, 52 Id., 127; Mathews v. Jarrett, 20 W. Va., 415; Westfall v. Cottrills, 24 Id., 263; Blankenship v. Spencer, 7 S. E. Rep. [W. Va.], 433; Dobson v. Litton, 5 Cold. [Tenn.], 616 ; Holmes v. Evans, 48 Miss., 247. As to the fourth formal point discussed in the opinion : Taylor v. Williams, 45 Mo., 80; Powell v. Conant, 33 Mich., 396; Pratt v. Eby, 67 Pa. St., 396; Littlefield v. Tinsley, 26 Tex., 352; Pomeroy, Spec. Perf., sec. 203; Jeffries v. Jeffries, 117 Mass., 184; Dobbs v. No7'cross, 24 N. J. Eq., 327; Adams v. Valentine, 33 Fed. Rep. [N. Y.], 1; Pyrke v. Waddingham, 10 Hare [Eng.], 1; Swaynev. Lyon, 67 Pa. St., 436 ; Griffin v. Cunningham, 19 Gratt. [Va.], 571; Park Cornos v. Armstrong, 45 N. Y., 234; Palmer v. Morrison, 10 N. E. Rep. [N. Y.], 144; Butler v. Davis, 5 Neb., 521; Lowes v. Lush, 14 Vesey [Eng.], 547; Seaman v. Vawdrey, 16 Id., 390; Mullins v. Aikens, 1 Heisk. [Tenn.], 535; Fryer v. Rodcafelder, 63 N. Y., 268; Ludlon v. O’Neil, 29 O. St., 181; Horbach v. Miller, 4 Neb., 47; Pettit v. Black, 13 Id., 153 ; Tussel v. Lewis, Id., 417 ; Gatling p. Lane, 17 Id., 79-83; Haywood v. Thomas, Id., 240; Galligher v. Connell, 23 Id., 402; Close v. Stuyvesant, 24 N. E. Rep. [111.], 873; Moore v. Williams, 22 N. E. Rep. [N. Y.],'233; Voughtv. Williams, 24 Id., 197; In re La Due, 54 N. Y., 528 ; Richmond v. Koenig, 45 N. W. Rep. [Minn.], 1093; Fairchild v. Marshall, 42'Minn., 14.</p>

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

<p>Municipal Corporations: Unsafe Sidewalks. In an action against a municipality for damages of a serious nature to the plaintiff, caused by falling through a defective sidewalk, the testimony fully established the unsafe and dangerous character of the walk at the place where the injury occurred, and the serious nature of the injury, and failed to show contributory negligence on the part of the person injured, and there being no material error in the record, the judgment is affirmed.</p>

<p>1. Sale: Warranty Not Proved. In an action upon a note given for a harvester, where certain defects were alleged in violation of a verbal warranty, held, that the evidence failed to establish a verbal warranty, or that the machine was materially defective.</p> <p>2. -: Implied Acceptance. Retaining and using it beyond a reasonable time are deemed a full acceptance of the machine.</p>

<p>Appeal from the district court for Burt county. Heard below before Waiceley, J.</p> <p>Me Oreery v. Schaffer, 26 Neb., 173; Vi. Savings Bk. v. Elliott, 18 N. W. Rep. [Mich.], 806; Armitage v. Toll, 31 Id., 408; Thompson, Homesteads, secs. 264, 265, 277, 318; Westheimer v. Reed, 15 Neb., 664; Wright v. Smith, 11 Id., 343; Dennis p. Omaha Natl. Bank, 19 Id., 677; Zimmer v. Pauley, 8 N. W. Rep. [Wis.], 221; Persifull v. Blind, 11 S. W. Rep. [Ky.], 15; Newton v. Calhown, 68 Tex., 451; Hanlon v. Pollard, 17 Neb., 371; Phipps v. Action, 12 Bush [Ky.], 375; Guy v. Downs, 12 Neb., 533; Sehribar v. Platt, 19 Id., 631.</p> <p>Freeman, Executions, sec. 239; Rector v. Rotton, 3 Neb., 171; Conley v. Chili-cote, 25 O. St., 324; MaComb v. Thompson, 42 Id., 146; Newman v. Franklin, 28 N. W. Rep. [Ia.], 579, Williams v. Moody, 28 N. W. Rep. [Minn.], 510; McDaniel v. Ragsdale, 8 S. W. Rep. [Tex.], 625; Gates v. Steele, 4 S. W. Rep. [Ark.], 53, and cases.</p>

<p>1. Attachment: Motion to Dissolve: Practice. While on a motion to dissolve an attachment the merits of a cause of action cannot he questioned, yet this rule will not prevent the defendant on such motion from stating any pertinent fact to explain the transaction out of which the suit arose, even if in doing so he makes it appear that the sum claimed is too large.</p> <p>2. The evidence in the case fails to show any cause for an attachment.</p>

<p>1. Telegraph Companies: Cannot Limit Liabilities por Nondelivery. Under the provisions of section 12, chapter 89a, Compiled Statutes, a printed stipulation on a message blank to the effect that the telegraph company should not be liable for a failure to deliver an unrepeated message, in a sum greater than that paid for the service, is no defense to an action for damages for delay in delivering an unrepeated message.</p> <p>2. -: Statute Regulating. The title to the act which took effect June. 1, 1883, in these words: “An act to prohibit extortion and discrimination in the transmission of telegraph dispatches,” is broad enough to cover the provisions in section 12 of said act.</p> <p>3. A judgment will not be reversed for error committed in the giving of an instruction when the verdict is the only one that should have been returned under the evidence.</p> <p>4. Error cannot be predicated upon the admission of incompetent testimony, when received without objection.</p>

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

Heard below before Morris, J. Hull v. Baird, 35 N. W. Rep. [Ia.], 612, and cases; State ex rel. Fuller, v. Martin, 27 Neb., 441. As to the power to incur expenditure: 1 Dillon, Mun. Corp., sec. 292, and cases; Cook Co. v. Me Orea, 93 111., 236; Ottawa v. Carey, 108 U. S., 110; Kelly v. Milan, 21 Fed. Rep. [Tenn.], 842; Ravenna v. Pa.

<p>Error to the district court for Adams county. Tried below before Gaslin, J.</p> <p>Cleaver v. Ins. Co., 65 Mich., 527; Stevens v. Ins. Co., 83 Ky., 7; Mallory v. Ins. Co., 65 Ia., 450; McGowan v. Ins. Co., 41 Am. Rep. [Vt.], 843; Ger. Am. Bank v. Ins. Co., 8 Mo. App., 401; Barnes v. Ms. Co., 51 Me., 110; Dix v. Ms. Co., 22 111., 272; Plath v. Ins. Co., 23 Minn., 479, and cases; Edmonds v. Ms. Co., 1 Allen [Mass.], 311; Abbott v. Ins. Co., 30 Me., 414; Hicks v. Ins. Co., 32 N. W. Rep. [Ia.], 201; Cuthberson v. Ms. Co., 2 S. E. Rep. [N. Car.], 258; Nedrow v. Ins. Co., 43 Ia., 24; Garver v. Ms. Co., 28 N. W. Rep. [Ia.], 555; Ellis v. Ms. Co., 16 Id., 744; Cbm. As. Co. v. Hocking, 2 Am. St. Rep. [Pa.], 571; Keystone Ben. Ass’n v. 'Norris, Id., 572; Va. Ins. Co. v. TVeils, 17 Ins. Law Jour. [Ya.], 26; Cornett v. Ins. Co., 25 N. W. Rep. [Ia.], 673; Phenix Ins. Co. v. Willis, 8 Am. St. Rep. [Tex.], 566; Livesey v. Omaha Hotel, 5 Neb., 64; Suggs v. Ins. Co., 9 S. W. Rep. [Tex.], 676; Vette v. Ins. Co., 30 Fed. Rep. [Wis.], 352; Ins. Co. v. Brim, 12 N. E. Rep. [Ind.], 315.</p>

<p>1. Summons: Service by Deputy: Appointment. Section 125, article 1, chapter 18, Compiled Statutes, confers authority upon a sheriff to depute a person to serve a summons, which appointment must he indorsed upon the process, and signed by the sheriff.</p> <p>2. --: -: The Failure to Date the indorsement will not invalidate the service.</p> <p>3. —=—: -: Return. When a special deputy serves a summons the returns must he made under his oath.</p>

<p>1. Interest: Lex Loci. A promissory note was dated and executed at Cheyenne, Wyoming, and, by its terms, was payable there. The maker was a Wyoming corporation, having most of its property and transacting the greater part o'f its business in Nebraska. The payee was a resident of Wyoming. The note provided for interest at fifteen per cent per annum, which was lawful in Wyoming when the note was made. The note was given for a loan of money and was secured by mortgages executed in Wyoming on certain property of the corporation situated in this slate. The payee and mortgagee refused to pay the money until he examined the records in this state to see if the property was clear from incumbrances. On making examination and finding no liens, the money was paid over in this state and the note and mortgages delivered here. There was evidence tending to show that the agreement for the loan was made in good faith in Wyoming, and not as a device for securing interest in excess of that allowed by the laws of this state. The finding of the district court, that the note is a Wyoming contract, and its validity is not governed by the laws of Nebraska, upheld.</p> <p>2. Chattel Mortgages: Option to Foreclose on Default op Interest Sustained. A mortgage contained a provision that in case of default in the payment of any interest for the space of three days, after the same becomes due and payable, the whole debt should, at the option of the mortgagee, become due and payable forthwith. JE(eld, That the mortgagee, in case of a default in payment of interest for three days, may elect to declare the entire debt due, and bring an action to foreclose the mortgage. .</p> <p>3. -: Foreclosure: Sale: Postponement: Publication. When a chattel mortgage sale is postponed, notice of such adjournment, in case a newspaper is published in the county where the sale is to take place, and the adjournment is for a sufficient ' length of time to permit, must be published in the paper in ' which the original notice of sale was given, and be continued therein in each issue of the paper until the day of sale.</p> <p>4. -: Sale for Less Than Value: Accounting. A mort-. gagee of chattels must comply substantially with the requirements of the statute in foreclosing a chattel mortgage. If he fails so to do in an essential particular, and the property is sold for less than its valuej the mortgagor is entitled to have the value of the property applied to the extinguishment of the debt, and if such value is greater than such debt, the mortgagee is liable to the mortgagor for the difference.</p> <p>5. Continuance: Review. To review an order denying a continuance it is necessary to take an exception to the ruling in the trial court.</p>

<p>Error to the district court for Hall county. Tried below before Harrison, J.</p> <p>Welsh v. Lindo, 1 Cranch [Dist. Col.], 497; Chitty, Bills, 268; Byles, Bills, 266; Uphamv. Prince, 12 Mass., 13; Borden v. Clark, 26 Mich., 410; Fassin v. Hubbard, 55 N. Y., 465.</p> <p>Tallón v. Ellison, 3 Neb., 74; Faulkner v. Klamp, 16 Id., 178; 1 Daniel, Neg. Inst., sec. 670; 2 Randolph, Com. Paper, sec. 720; 3 Greenl., Ev., sec. 109.</p>

<p>Error to the district court for Dakota county. Tried below before Norris, J.</p> <p>as to the indorsement of names on information: Parks v. State, 20 Neb., 517; People v. Evans, 40 N. W. Rep. [Mich.], 473; People v. Quick, 25 Id., 302; Gandy v. State, 27 Neb., 707. As to the separation of the jury: People v. Evans, 40 N. W. Rep. [Mich.], 476; Churchill v. Judge, 23 Id., 212; Cantwell v. State, 18 O. St., 482. As to the 3d instruction: Cowan v. State, 22 Neb., 519.</p>

<p>Continuance: Affidavits of parties to actions for the continuance of the trial for the production of the testimony of absent and distant witnesses, must allege facts and circumstances to be given in evidence from which legal conclusions, constituting a cause of action or defense, may be drawn.</p>

<p>Original proceeding in nature of quo warranto.</p>

<p>1. Sale: Badge op Fraud: An Instruction,requested, by which the jury were told that if they should find from the evidence that at the time the stock of goods in controversy was sold by T. K. H. to this plaintiff, said stock was sold for a sum much less than the real value of the same, such fact, if it be a fact, would be a strong badge of fraud, held, rightly refused.</p> <p>2. Instructions given-considered, and held, rightly given.</p> <p>3. An assignment of error in a petition in error in the follow-lowing language: “ Errors of law occurring during the trial in the admission and rejection of evidence which will more fully appear by reference to the bill of exceptions filed herewith,” criticised and disapproved.</p> <p>4. An offer of evidence not containing sufficient to show its materiality to any one of the issues or points in controversy in the suit, but containing substantive matter irrelevant and inapplicable to any of such issues or points in controversy, held, properly rejected.</p> <p>6. Evidence held to sustain the verdict and judgment.</p>

<p>1. Bastardy: Examination op Complainant : Waiver. The provisions of statute that upon a complaint of bastardy by an unmarried woman to a justice of the peace that she is pregnant, or has been delivered of a child, charging a putative father with the offense, the defendant shall be arrested, and brought to answer, requires the justice to examine the complainant under oath touching her complaint, which examination is to be reduced to writing, are provisions for the protection of defendants, and may be waived without prejudice to their defense.</p> <p>2. -: Evidence. In an action of bastardy upon an answer of not guilty by the defendant, witnesses may be examined on the part of the plaintiff as to the intimate relations apparently existing between the accused at and about the time of the claimed conception.</p> <p>3. -: -: Preponderance op, Suppicient. The proceeding under the bastardy act is essentially a civil one and a preponderance of evidence is sufficient. Altschuler v. Algaza, 16 Neb., 631.</p> <p>4. -: The Evidence examined,and held, to sustain the verdict.</p>

Tried below before Powers, J. The county treasurer is a trustee, and as such must account to his principal, the county, for any gains or profits he may have made in dealing with its funds.

<p>Error to the district court for Pawnee county. Tried below before Broady, J.</p> <p>Puchett v. Pope, 3 Ala., 552; Hubbard v. Dubois, 37 Yt., 94; Langley v. Grill, 1 Col., 71.</p>

<p>1. Pleading: General Denial. Under the Code a general denial goes only to every fact stated in the petition which the plaintiff is under the necessity of proving in order to sustain his cause of action.</p> <p>2. -: New Matter of any kind which constitutes a partial or entire defense to a cause of action must be pleaded in the answer to be available, as a defense.</p>

<p>1. Taxation: National Bank Stock: Debts Cannot Be Deducted From. The owner of national bank stock, in listing his shares for taxation, is not entitled to deduct his bona fide indebtedness from the value of such shares of stock.</p> <p>2. -: Former Doctrine Overruled. The decision on the former hearing of the case, reported in 25 Neb. 468, is overruled.</p>

<p>Error to the district court for Cass county. Tried below before Chapman, J.</p> <p>Tessier v. Lockwood, 18 Neb., 167; Hiatt v. Brooks, 17 Id., 33; Thrall v. Hotel Co., 5 Id., 295.</p> <p>Grant v. Cropsey, 8 Neb., 205; Thomas, Homesteads and Exemption, sec. 379; Reed v. Umbarger, 11 Kan., 206; Burns v. Thornburg, 3 Watts [Pa.], 88; Holmes v. Robinson, 4 O., 91; Boyer v. Clark, 3 Neb., 166; Billings v. McCoy, 5 Id., 187.</p>

<p>Error to the district court for Antelope county. Tried below before Powers, J.</p> <p>Remarks of counsel: Cleveland Pa. Co. v. Banks, 15 Neb., 22; Festner v. R. Co., 17 Id., 283. Alibi: McLain v. State, 18 Id., 160; Stale v. Chee Gong, 19 Pac. Rep. [Ore.], 607.</p> <p>Masters v. Marsh, 19 Neb., 458; Sang v. Beers, 20 Id., 373; Williams v. State, 5 S. ~W. Rep. [Tex.], 659; Miner v. Borman, 33 N. W. Rep. [Mich.], 867; Huckshold v. R. Co., 2 S. W. Rep. [Mo.], 798.</p>

<p>Mandamus: Enforcing Injunction Against County : Ditches. The relator brought an action in the district court of F. county against the said county and the individuals constituting the county board thereof, alleging in his petition, that the said county had unlawfully dug a ditch by means of which the water which falls upon about one thousand acres of land, and formerly found its way into a large number of sags, swamps, and low places thereon, was discharged upon the lands, farm, and homestead of the relator, which were on a lower level, etc., with prayer for an injunction, and for general relief. The district court made and entered a decree perpetually enjoining the respondents from discharging any of the water which accumulated in the sags and swamps on the lands described in the said petition, by means of ditches or otherwise, excepting the natural overflow only onto a certaih parcel of land, describing it, belonging to the said relator, with judgment for the relator for costs. After some delay the relator applied to this court for a peremptory writ of mandamus to enforce the duty imposed upon the said county, and county board, by the said decree of the district court. Held, That it not appearing that such duty could not be enforced by the district court in the due course of law, a mandamus for that purpose would be denied in this court.</p>