Volume 34 — Nebraska Reports

<p>Error to the district court for Hall county. Tried below before Harrison, J. •</p> <p>cited: Butler v. Kennard, 23 Neb., 359; Nicholas v. Jones, Id., 816; Anderson v. Cox, 16 Id., 10.</p>

<p>Error to the district court for Platte county. Tried! - below before Post, J.</p> <p>cited, contending that the order was not final, Welsh v. Calhoun, 22 Neb., 166.</p>

<p>Sale: Conditional Contract Por: Validity. A contract for the sale and delivery of personal property upon condition that the title is to remain in the vendor until the purchase price is paid, is invalid, as against purchasers in good faith, judgment and attaching creditors of the vendee, without notice, unless a copy of the contract is verified and filed in the manner pointed out in section 26, chapter 32, of the Compiled Statutes.</p>

<p>1. Criminal Law: Obstructions on Railroad Track. Held, That the evidence justifies the finding of the jury that the defendant was guilty of willfully and maliciously placing an obstruction upon the railroad track as alleged in the information.</p> <p>2. -: Confessions. When the crime charged is fully established by competent testimony, the free and voluntary confession of the defendant may be proven for the purpose of connecting him with the offense. .</p> <p>3. --: Conviction on One Count, Acquittal on Another. The information contains two counts, each charging a separate offense. There was a verdict of guilty under one count, and an acquittal of the other, though the evidence would have j ustified a convection of both offenses charged. Held, That the findings are not inconsistent with each other, and that the accused was not prejudiced by the findings returned in his favor.</p> <p>4. -: The venue of an offense may be proven like any other fact in a criminal case. It need not be established by direct testimony, nor in the words of the information, but if from the facts in evidence the only rational conclusion which can be drawn is that the crime was committed in the county alleged, the proof is sufficient.</p> <p>5. -: Variance. There is no variance between the allegations of the second count of the information and the evidence introduced in support thereof.</p> <p>6. -: Sentence: Review. When the sentence imposed in a criminal case is within the limits fixed by statute, it wiil not be disturbed, unless it appears that there has been an abuse of discretion.</p>

<p>1. Judgments: Setting Aside After Term: Final Order. An order setting aside a judgment under the provisions of section 318 of the Code, on grounds discovered subsequent to the adjournment of the term at which such judgment was rendered, is a final order and may be reviewed on petition in error.</p> <p>2. -; -; Pleading: Diligence. In such proceeding it must affirmatively appear that the grounds alleged could not with reasonable diligence have been discovered during the term at which the verdict was rendered or decision made, and a petition which contains no allegation of diligence is -fatally defective.</p> <p>3. Verdict: Impeachment: The Testimony of Jurors will not be received to impeach or avoid their verdict in respect to matters which essentially inhere in the verdict itself, as that they agreed to the verdict from motives of ill-will toward the unsuccessful party or a third party supposed to be directly interested in the controversy, or other matters resting alone in the breasts of the jurors.</p> <p>4. New Trial: Petition examined, and held, not to state facts sufficient to entitle the petitioner to a new trial.</p>

<p>1. Judgments: Setting Aside in Equity. The jurisdiction of courts of equity to set aside judgments at law will be exercised only when it appears that the judgment complained of is unconscionable, and when the party applying had no opportunity to make defense, or was prevented from so doing by accident or the fraud of the opposing party.</p> <p>2. -: : Laches. Equity will not interfere to relieve a party who, being under no disability, has failed to make his defense at law on account of his own negligence.</p> <p>3. -: : Fraud which is available as a ground for avoiding a judgment by a court of equity, must have intervened in the action or proceeding in which the judgment was obtained. Fraud in an antecedent transaction not connected with the judgment is not of itself sufficient.</p> <p>4. -: : Evidence examined, and held, not sufficient to entitle plaintiff to relief against certain judgments rendered against them by confession.</p>

<p>1. Attorneys: Embezzlement.- In a prosecution under section 121 of the Criminal Code, for embezzlement as an attorney at law, the fiduciary character of the accused, which is the distinguishing feature of the crime of embezzlement, should be distinctly charged.</p> <p>2. Criminal Law: Information: Accused Entitled to a Copy. The right conferred upon the accused in a prosecution for a felony by section 436 of the Criminal Code, to a copy of the indictment or information, and one day to prepare for trial, is a substantial right, to deny which is error.</p> <p>3. -: -: Amendment. When an information for a felony is insufíicient for want of a material averment, it is error for the trial court to permit an amendment supplying such deficiency, and require the accused, over his objection, to proceed with the trial immediately, refusing him a copy of the amended information, and the statutory time to plead thereto.</p> <p>4. .-; -: -. Whether an information may be amended without the consent of the accused by adding thereto material allegations, without which it fails to charge a crime, not determined.</p>

Heard below before Cochean, J. cited, contending that a construction which exempted the five-year limitation from applying to places which were at the time county seats would make the statute unconstitutional because special legislation: State v. Elliott, 23 N. E. Rep. [O.], 931; State, ex rel. Oblinger, v. Spande, 34 N. W. Rep. [Minn.], 164; Nichols v. Walter, 33 Id., 800; State, ex rel.

<p>1. Removal of Causes: Trial: Commencement. Where a jury is called into the box and the jurors examined on their voir dire and accepted but not sworn, it is the commencement of a trial under the Code, and it is too late thereafter to seek to remove a cause into the United States court.</p> <p>2. -: Failure to Show Grounds. Where there is no copy of the petition, on which an order of removal by a federal court is made, presented to the trial court, and the order itself fails to show any ground therefor, the district court is not required to surrender its jurisdiction, but may proceed with the trial of tha cause.</p> <p>3, Affidavit for bondsmen examined, and held, to be insufficient.</p>

<p>Error to the district court for Cheyenne county. Tried below before Hamer, J.</p> <p>cited, as to the improper questions by the prosecutor: State v. Red, 63 la., 69; People v. Lyons, 49 Mich., 78; Lamb v. State, 6 Cent. Rep. [Md.], 775i</p>

<p>Appeal from the district court for Douglas county. Heard below before Doane, J.</p> <p>cited, on the question of exemption: Turner v. B. Go., 19 Neb., 241; U. P. P. Co. v. Smersh, 22 Id., 755; Moore v. P. Co., 43 la., 385.</p> <p>cited, on same point: Turner v. P. Co., 19 Neb., 241; Albrecht v. Treitschlce, 17 Id., 205. '</p>

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

<p>Quantum Meruit: Part Performance: Benefits Retained. In an action to recover on a contract for services performed where the adverse party has retained the benefits thereof, he will be liable foT the value of such services in excess of any damages he may have sustained by a failure to fully perform the contract.</p>

<p>Agency: Unauthorized Acts: Personal Liability. When one who assumes to act as another’s agent, without authority so to do, signs the name of the other as maker of a due bill, he is not personally liable in an action thereon, unless it contains apt words to charge him as such.</p>

Tried below before Doane, J. cited the following authorities as determining the nature of certificates of deposit: 2 Wharton, Ev., sec. 925,and cases; Daniels, Neg. Inst., secs. 1702, 1702a, and cases; Brett v. Ming, 1 Ela., 447; Mills v. Barney, 22 Cal., 240; Coye v. Palmer, 16 Id., 158; Ford v. Mitchell, 15 Wis., 334; 1 Randolph, Com. Pa., sec. 2, and cases cited; Cate v. Patterson, 25 Mich., 191 ; Story, Prom.

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

<p>Elections: Contest: Bill of Exceptions Necessary. In proceedings in the district court to contest an election held for the purpose of locating a county seat, the evidence should be preserved by bill of exceptions, the same as in other cases, and, in the absence of such a bill, it will be presumed that the evidence was sufficient to support the finding and judgment.</p>

Original action in nature of quo warranto. cited: Sutherland on Statutory Con., sec. 430; State, ex rel. Jones, v. Graham, 16 Neb., 74. The relator’s construction of the law cannot be accepted because it leads to irreconcilable conflict between sec. 53, ch. 18, Comp. Stats., and sec. 55, ch. 18, and sec, 7, ch. 26.

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

<p>Error to the district court for Hall county. Tried below before Harrison, J.</p> <p>cited: Deering on the Law of Negligence, sec. 17; Thompson on Negligence, p. 1172; Shearman & Red field on the Law of Negligence, sec. 31; Rice v. Me Comas, 21 Neb., 198, and cases cited; Hutton v. Arnett, 51 111., 198; Rhutasel v. Stephens, 27 N. W. Rep. [Ia.], 786, and cases cited.</p>

<p>Wrongful Attachment: Justice of the Peace Has No Jurisdiction. An action for a wrongful suing out an attachment under which the property of the debtor was seized, is one for malicious prosecution, and a justice of the peace has no jurisdiction.</p>

<p>1. Sheriff: Serving Election Notices: Fees. The only compensation for serving election notices, to which a sheriff is entitled, is five cents a mile for each mile actually and necessarily traveled.</p> <p>2. -: -: -. Where a sheriff at thé same time and places posts notices of two elections, he is only entitled to mileage for one trip.</p>

<p>. 1. Interest: Unsettled Accounts do not draw interest until the expiration of six months from the date of the last item therein.</p> <p>2. Review. Evidence examined, and held, not to sustain the judgment.</p>

<p>1. An instruction not based upon the evidence, although correct as a legal proposition, is good ground for the reversal of a judgment, if it has a tendency to mislead the jury.</p> <p>2. Contracts: Breach : Measure of Damages. In the sale of a harvester, the vendor agreed to furnish needed repairs for the machine for the period of two years, free of charge. In an action upon the notes given for the purchase price, the court instructed the jury, in effect, to return a verdict for defendants in case they found that plaintiff failed to furnish such repairs when requested by defendants. Held, Error, and that the measure of damages for the breach of the contract by the plaintiff in such case is the value of such repairs.</p> <p>3. -r-: Agency: Ratification. A party will not be permitted to adopt that part of a contract made by his agent which is beneficial to him and reject the remainder. He must adopt his acts as a whole.</p>

<p>1. Elections: Ballots: Requirement as to Marking,Directory. The provision in section 20 of the act approved March 4, 1891, known as the “Australian ballot law,” for the marking of ballots with ink, is directory only, and ballots, if in other respects regular, will, in the absence of fraud, be counted, although marked with a pencil.</p> <p>2. -: -: A peremptory mandamus will not be allowed, requiring the judges and clerks of election to count ballots rejected by them, after such ballots have been returned to the county clerk and are beyond their control.</p>

Tried below before Gaslin, J. cited': State v. Ensign, it Neb., 529; Colby v. Berger, 13 Id., 463. cited, contending that a judgment for costs was not a sufficient foundation for error proceedings: Sprick v. Washington County, 3 Neb., 255; Nichols v. Hail, 5 Id., 195; Riddle v. Yates, 10 Id., 511; Woods v. Colfax County, Id., 552; Cozine v. Hatch, 17 Id., 696; Whitall v. Oressman, 18 Id., 508; Wilkinson v. Carter,22 Id., 189; Civil Code, sec. 572; Jacobs v. Morrow, 21 Neb.,…

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

Heard below before Wakeley, J. The purpose of the contract was to defeat competition, and whether such purpose was accomplished or not is immaterial.

<p>Error to the district court for Douglas county. Tried below before Doane, J.</p> <p>cited: Vanslyak v. Mills, 34 la., 375 ; Frederick v. Ballard, 16 Neb., 559; Fisk v. Tank, 12 Wis., 306; Pa. B. Co. v. Titusville, 71 Pa. St., 350; Sutherland on Damages, pp. 401-403; Passenger v. Thornburn, 34 N. Y., 634.</p>

Original application for mandamus. Where the constitution defines the circumstances under which a right may be exercised, the specification is exclusive. (Cooley, Constitutional Limitations, p. 78.) The legislature cannot add to the constitutional qualifications of voters.

<p>Original insolvency proceedings. Instituted under the provisions of ch. 37, Law 1889.</p> <p>Letton & Ilinshaw, for intervenor, cited: ■Fonner v. Smith, 31 Neb., 107; Roberts v. Corbin, 26 la., 315; Morse on Banking, 376; First Natl. Bank of Cincinnati v. Coates, 3 McCrary [U. S.], 9; German Savings Bank v. Adae, 8 Fed. Rep. [Mo.], 108; Id., 540; 2 Dan., Neg. Inst., 528-37; 2 Parsons, Notes & Bills, 58, 59; Butcher v. Importers & Traders Natl. Bank, 59 N. Y., 5.</p>

<p>1. Interest: Penalty of Higher Rate, for Non-payment Not Enforced. Where money has been loaned at a specific rate of interest, as ten per cent, and the note contains a provision that if not paid at maturity the maker shall pay twelve per cent thereafter, the higher rate is in the nature of a penalty, and the contract rate will continue as before the maturity of the note. (Weyriehv. Hobelman, 14 Neb,, 432.)</p> <p>2. -: Coupons: Usury. Where a loan was made for five years at ten per cent, the interest being represented by coupon notes due in five years with interest from maturity, the loan being made at a time when the statute authorized twelve per cent, held, that a contract, legal when made, would be enforced notwithstanding a change in the statute reducing the rate of interest; second, that all the notes would be considered as parts of one transaction, and that if they, taken together, did not exceed the limit fixed by law for the exacting of interest, the contract would not be tainted with usury.</p>

<p>Motion to modify judgment.</p>

Tried below before Tiffany, J. Remote or speculative damages resulting from injuries to credit, business, character, or feelings cannot be recovered. (Drake on Attachment, sec. 175; Reidharv. Berger, 8 B. Mon. [Ky.], 160; State v. Thomas, 19 Mo., 613; Donnell v. Jones, 13 Ala., 490; Floyd v. Hamilton, 33 Id., 235; Higgins v. Mansfield, 62 Id., 269; Pollock v. Gantt, 69 Id., 373; Holliday v. Cohen, 34 Ark., 707; Oberne v. Gaylord, 13 Bradwell [111.

Tried below before Harrison, J. cited, as to the rejection of testimony, cases referred to in opinion. Failure to request different instructions waives objections to those given. (Post v. Garrow, 18 Neb., 688; Klosterman v¡ Olcott, 25 Id., 387; Woodruff v. White, Id., 753; N. A. & G. R. Co. v. Wright, 17 N. E. Rep. [Ind.j, 584; Hyde v. St. Louis Boole & News Co., 32 Mo.

<p>Original application for mandamus.</p> <p>cited: Ganet’s Appeal, 33 Pa. St., 94; Coxe v. Wolcott, 27 Id., 154; Steiner v. Coxe, 4 Id., 26 ; Rogers v. Johnson, 70 Id., 224; Blackwell on Tax Titles [5th Ed.], secs. 716, 717; Oullahan v. Sweeney, 79 Cal., 537; Broughton v. Journeay, 51 Pa. St., 31; Tug River Coal Co. v. Brewer, 15 Si W. Rep. [Ky.], 1117; Kinsworthy v. Austin, 23 Ark., 375; Coming v. Davis, 44 la., 622; Wright v. Sperry, 21 Wis., 331; Torrington v. Richershauser, 41 Kan., 486; Hicks v. Nelson, 45 Id., 47; People v. Cady, 6 N. Y. Sup., 546.</p> <p>cited : Davis v. Huston, 15 Neb., 31; Comp. Stats. 1889, ch. 77, secs. 123, 142; Zahradnicek v. Selby, 15 Neb., 582; Cooley on Taxation, 323, 324.</p>

<p>Limitation of Actions: A Proceeding by Mandamus is barred by the statute of limitations at the expiration of four years from the time, the right to the writ accrued.</p>

<p>Original insolvency proceeding. Instituted under the provisions of Ch. 37, Laws of 1889.</p>

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

Original application for a writ of habeas corpus. Acts of executive clemency are to be liberally construed in favor of a prisoner. (Wyrral’s Case, 3 Coke’s Eng. Rep., part V, 50; State v. Blalock, Phillips’ Law [N. Car.], 242; Ex parte Hunt, 10 Ark., 284.) The petitioner is entitled to good time from, date of sentence.

Tried below before Norris, J. It was the duty of the board to receive the proof offered. (Clark v. Holmes, 1 Doug. [Mich.], 390; State v. Nemaha Co., 10 Neb., 33; State v. Nelson, 21 Id., 578.) The filing of a petition properly signed is jurisdictional. The board is an inferior tribunal, and the facts which give it jurisdiction must appear on its record. (Smith v. Rice, 11 Mass., 513; Henry v. Esles, 127 Id., 474; Hallv.

Tried below before Field, J. The board of public lands and buildings had power to make the contract, and require the bond. [Knapp v. Swaney, 23 N. W. Rep. [Mich.], 163; Balter v. Bryan, 64 la., 561). Plaintiff could maintain the action in his own name on the bond and contract. (Shamp v. Meyer, 20 Neb., 223; Baker v. Bryan, 64 la., 561; Emmett v. Brophy, 42 O. St., 82.) The board had no right to insert into the contract the provision to pay for materials and laborers’ wages.

Tried below before Kinkaid, J. The phrase “ & Co.” following plaintiff’s name in the title should be treated as surplusage. (O'Callaghan ». Bode, 24 Pac. Rep. [Cal.], 269; Kenyon v. Semon, 45 N. W. Rep.' [Minn.], 10; Weisz v. Davey, 28 Neb., 566 (distinguished); Walgamood v. Randolph, 22 Neb., 493.) Demurrer will not lie. (Nelson v. Highland, 13 Cal., 74; Gardner v. McClure, 6 Minn., 250; Bank v. Tillará, 26 .Md., 446; Bank v. Smith, 17 How.

<p>1. Summons: Service: Husband and Wire. Where an action is brought against a husband and wife, the latter must be lawfully served with process, or appear voluntarily in the case, to be bound by the judgment.</p> <p>2. Supreme Court: Opinions: Syllabus. There is an unwritten rule in this court that the members thereof are bound only by the points stated in the syllabus of each case. Each judge in the body of an opinion necessarily must be permitted to state his reasons in his own way, without binding the members of the court to assent to all such reasoning, although they may concur in the conclusions reached.</p>

<p>Criminal Law: Reasonable Doubt. In a prosecution for grand larceny the court instructed the jury: “On the question of reasonable doubt the court instructs the jury that the term ‘reasonable doubt,’ as used in these instructions, means a doubt which has some good reason for it arising out of the evidence in the case; such a doubt as you are able to find a reason in the evidence for,” etc. Held, Erroneous, and cause for reversal of the judgment.</p>

<p>Liquors. Mandamus Granted at Chambers to Revoke License. A remonstrance against the issuance of a license for the sale of intoxicating liquors was duly filed with the licensing board in which causes fatal to the granting of a license were assigned and proof introduced tending to sustain such charges. The board overruled the remonstrance and granted a license to the applicant; whereupon the remonstrants appealed to the district court and afterwards applied to a judge of the district court at chambers for a peremptory writ of mandamus to compel the board to revoke the license until the decision on the appeal. The judge thereupon granted the writ. Held, There being no controversy as to the essential facts as above stated, the judge had authority to grant the writ.</p>

Tried below before Broady, J. The trial in the district court determined the amount of damages due to Boerner. (Mills, Eminent Domain, sec. 216; Montmorency Gravel Road Co. v. Stockton, 43 Ind., 328; Blakely v. R. Co., 25 Neb., 207; Lajlin v. R. Co., 33 Fed. Rep. [Wis.], 422; G, K. & N. R. Co. v. Wiebe, 25 Neb., 547; F., E. & M. V. R. Co. v. Whalen, 11 Id., 585.) Where a portion of the real estate is taken, the remedy by statute for all damages is exclusive.

<p>1. Grand Larceny: Felonious Intent Essential. Held, That the seventh instruction given by the court on its own motion is defective, in that it omits the element of felonious intent. To justify a conviction in a prosecution for grand larceny,the taking of the goods must have been with felonious intent.</p> <p>2. Instructions. It is not error for the court to refuse to give an instruction where the same, in substance, has already been given.</p>

<p>Error to the district court for York county. Tried below before Bates, J.</p> <p>cited: Oity of Champaign v. McMurray, 76 111.,353; N. P. R- Go. v. Paine, 119 U. S., 564.</p>

<p>Error to the district court for Nemaha county. Tried below before Broady, J.</p> <p>cited, as to indorsement of names on information: Gandy v. State, 24 Neb., 717; Parks v. State, 20 Id., 517; People v. Hall, 12 N. W. Rep. [Mich.], 667; Reg. v. Frost, 9 C. & P. [Eng.], 147; Rex v. Lord, 2 Doug. [Eng.], 59. As to the challenge of juror: 4 Am. & Eng. Ency. Law, 828; O’Brien v. People, 36 N. Y., 276; Walter v. People, 32 Id., 160; As to interest of accused: 2 Thomp., Trials, secs. 2423, 2445; Saekett, Instructions, 36. As to evidence of good character: 2 Thomp., Trials, sec. 2444; Saekett, Instructions, 651, 652; Harrington v. State, 19 O. St., 269; Wharton’s Crim. Ev., sec. 66, and note; State v. Northrup, 48 la., 583; People v. Garbutt, 17 Mich., 9; Long v. State, 23 Neb., 35; Remsen v. People, 43 N. Y., 6; Caneemi v. People, 16 Id., 501; Stover v. People, 56 Id., 319; Comm. v. Leonard, 140 Mass., 473.</p> <p>cited, as to testimony of accused : Rider v. People, 110 111., 13; Greed v. People, 81 Id., 569;-Dell v. Oppenheimer, 9 Neb., 454; Knowles v. People, 15 Mich., 412; Newell v. Wright, 8 Conn., 323; 2 Thompson, Trials, sec. 2445. As to evidence of good character: Greed v. People, 81 111., 569; Williams v. State, 52 Ala., 412; Long v. State, 23 Neb., 48; State v. Vansant, 8 Mo., 67; State v. Jones, 78 Id., 278; People v. Samsel, 66 Cal., 99; Sackett, Instructions, pp. 652, 653, .secs. 46, 47.</p>

The appeal by one defendant, under such a condition of facts as this, brings up the whole record.

<p>Error to the district court for Hitchcock county. Tried below before Cochran, J.</p> <p>cited : Tilden v. Streeter, 45 Mich., 533; Hale v. Cole, 8 S. E. Rep. [W. Ya.], 516; Pomeroy’s Eq. Jur., sec. 866; Perkins v. Lougee, 6 Neb., 220; Hansen v. Berthelsen, 19 Id., 440; Courvoirsier v. Bouvier, 3 Id., 55; Tatge v. Tatge, 26 N. W. Rep. [Minn.], 121; McClain v. McClain, ION. W. Rep. [Ia.], 333; Dyar v. Walton, 7 S. E. Rep. [Ga.], 220; Barr v. O’Donnell, 18 Pac. Rep. [Cal.], 429; Finlay son v. Finlayson, 21 Pac. Rep. [Ore.], 57; Feeney v. Howard, Id.,' 984; Perry, Trusts, sec. 215; McVay v. McVay, 10 Atl. Rep. [N. J.], 178; O’Brien v. Caslin, 20 Neb., 351; Shafter v. Huntington, 19 N. W. Rep. [Mich.], 11.</p> <p>cited: Courvoirsier v. Bouvier, 3 Neb., 51; Falsken v. Harkendorf, 11 Id., 82; Bartlett v. Bartlett, 15 Id., 593; Hansen v. Berthelson 19 Id., 433; Hartman v. Streitz, 17 Id., 557; Mathew v. Beaman, 24 O. St., 615; Harvey v. Gardner, 41 Id., 642; Catalani v. Catalani, 24 N. 33. Rep. pnd.], 375.</p>

<p>1. Review. Evidence examined, and judgment held to be against the weight of evidence.</p> <p>2. Estoppel: Tax Sale: Redemption. In 1872 one M. and wife executed a mortgage upon certain lots in the city of Lincoln. This mortgage was foreclosed and the property purchased by an assignee of the mortagee. The sale was duly confirmed and a deed made to the purchaser. In 1883 the grantees in the deed paid all taxes due on the lot from 1871. In 1880 M. made a quitclaim deed of said lot to J. A. M., who afterwards conveyed to one Gr., who then conveyed to Mrs. S. In 1S81 S. purchased the lots at private tax sale, and after the redemption from tax sale by the grantees under the sheriff’s deed, accepted the money paid for the redemption of the lots. Held, That he was thereby estopped from claiming title to such lot as against such grantees and their assigns.</p>

<p>Bight of Way: Conveyance by One RailroId to Another. A land-owner executed a deed to certain lands, to the R. V. Ry. Co., óf 100 feet in width for right of way to said railway company, “its successors and assigns, for right of way and for operating its railroad only.” An assignee of the original grantee conveyed to. another railway company forty-two and one-half feet of its right of way across the plaintiff’s land, thus making two roads upon such right of way. Held, That the second railway was an additional burden on the land, and plaintiff is entitled to recover.</p>

<p>Error to the district court for Douglas county. Tried below before Estelle, J.</p> <p>cited: Simmerman v. State, 14 Neb., 569;' Preuit v. State, 5 Id., 377; Pound v. State, 43 Ga., 88; Dillon v. People, 8 Mich., 357; People v. Smith, 26 Cal., 666; State v. Merrill, 2 Dev. [N. Car.], 277; Hatcher v. State, 18 Ga., 463; 1 Roscoe’§ Crim. Ev., 137, 155; Wharton, Crim. Ev., secs. 25-56; Commonwealth v. Shepard, 1 Allen [Mass.], 581; McCall v. State, 14 Tex. App., 362; Owen v. Owen, 22 la., 274; State v. Brainard, 25 Id., 580; State v. O’Hagan, 38 la., 506; State v. Mathews, 20 Mo., 55; Milton v. State, 6 Neb., 144.</p> <p>cited: Kerr, Homicide, 142; Montgomery v. State, 11 O., 424; State v. Downs, 91 Md., 19; Brown v. State, 110 Ind., 486; State v. Johnson, 102 Id., 247; State v. Smith, 10 Nev., 106; People v. Moan, 65 Cal., 532; Williams v. State, 2 Tex. App., 271; Wharton & Stilles’ Med. Jur., sec. 834; Wharton, Crim. Law, sec. 152 et seq,; State v. Morea, 2 Ala., 275; Midland Pao. R. Co. v. McCartney, 1 Neb., 398; Greenleaf, Ev. [14th Ed.], 53; 1 Phillips, Ev., 169; Roscoe’s Crim. Pro., 248, subdiv. 2; Goersen v. Commonwealth, 99 Pa. St., 388; State v. Harrold, 38 Mo., 496; Stout v. People, 4 Park. [N. Y.], 71; State v. Daubert, 42 Mo., 242; State v. Adams, 20 Kan., 311; Haskins v. People, 16 N. Y., 344; 1 Bish., Crim. Pro., sec. 491; Slide v. Folwell, 14 Kan., 105; Russell v. Rosenbaum, 24 Neb., 769; Cleveland Pa. Co. v. Banks, 15 Id., 23; Weir v. R. Co., 19 Id., 213; H. & G. I. R. Co. v. Ingalls, 15 Id., 129.</p>

<p>Garnishment: Order Conclusive. In a proceeding of garnishment in aid of execution, under sections 244-249 of the Code, where the garnishee has been properly served with summons and appeared and answered, and an order been made by the - court requiring him to pay a certain sum owing by him to the debtor into court, such order is final and will be conclusive un-, . . less appealed from.</p>

<p>1. Witnesses: Competency. Under section 329 of the Code, a person, having a direct legal interest in the result of an action in which the adverse party is the representative of a deceased person, is precluded from testifying to any transaction or conversation had with such deceased person, unless the evidence of the deceased has been taken and read on the trial by the adverse party in regard to such transaction or conversation, or unless such representative has introduced a witness who has testified in regard to such transaction or conversation.</p> <p>2. Descent: Administration. On the death of an intestate his lands immediately descend to his heirs subject to the right of possession by the administrator, pending administration, and to his power to sell the real estate to pay the debts of the estate, in case the personal property is insufficient for that purpose.</p> <p>3. Action Quia Timet: Death of Plaintiff: Revivor. Where, pending an action to set aside a deed to real estate, and to quiet title, the plaintiff dies intestate, the action may be revived and continued in the names of the heirs at law of such deceased person.</p> <p>4. Revivor. The mode provided by title 13 of Civil Code, for reviving actions by conditional order of revivor, is not exclusive. Section 45 of the Code confers authority upon the court to allow the action to be prosecuted by or against the representatives or successors in interest of a deceased party. For this purpose supplemental pleadings may be filed and summons served as in the commencement of an action. (Fox v. Abbott, 12 Neb., 333; Carter v. Jennings, 24 O. St., 182.)</p> <p>5. --. Held, That the present case was properly revived in the names of the heirs of the deceased plaintiff.</p> <p>6. Evidence held to sustain the findings and decree of the district court.</p>

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

<p>Error to the district court for Douglas county. Tried below before Hopewell, J.</p> <p>cited: Breeding v. Stoneman, 6 J. J. Marsh. [Ky.], 377; Gilmore v. Wilbur, 18 Pick. [Mass.], 517; Whiting v. Sullivan, 7 Mass., 107; Harrison v. Buhe, 14 M. &W. [Eng.,], 139; Berringer v. Iron Co., 41 Mich., 305; R. V. JR. Co. v.Linn, 15 Neb., 240; George v. State, 16 Id., 318; Sang v. Beers, 20 Id., 374.</p> <p>cited: Williams v. Evans, 6 Neb., 219; McPherin v. Bussell, 41 N. W. Rep. [Ia.], 301; O. Life Ins. Co. v.. Goodin, 10 O. St., 557; Dillon v. Bus-sell, 5 Neb., 489; Cropsey v. Averitt, 8 Id., 157.</p>

<p>1. Banks: Collections: Default of Correspondent: Liability. Where a bank receives for collection a note or bill payable at a distant point, with the understanding that such collection is an accommodation only, or that it shall receive no ' compensation therefor beyond the customary exchange, and it transmits such paper to a reputable and suitable correspondent at the place of payment, with proper instructions for the collection and remittance of the proceeds thereof, it will not be liable for the defaults of such correspondent.</p> <p>2. ———: -: -: -. In such case the holder will be held to have assented to the employment in his behalf of such agents as are usually selected by banks in the course of business in making collections through correspondents, and the correspondent so selected will, in the absence of negligence by the immediate agents and servants of the transmitting bank, become the agent of the holder only.</p> <p>3. ; -: --. The exchange which is usually charged by banks for the transmission of money from one place to another, is not a sufficient consideration to support an implied undertaking to answer for the default of a correspondent, selected to make collections for customers according to the course of business of banks.</p>

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

<p>Error to the district court for Lancaster county. Tried below before Field, J.</p> <p>cited: Duncan v. Hennen, 13 Pet. [U. S.], 230; People v. Ins. Co., 73 N. Y., 437; People v. Dunston, 3 N. Y. Sup., 522; People v. Mayor, 5 Barb. [N. Y.], 43; Laimbee v. Mayor, 4 Sandf. [N. Y.], 109; People v. Angle, 17 N. E. Rep. [N. Y.], 413.</p> <p>cited: Davis v. Mayor, 1 Duer [N. Y.], 451; Halstead v. Mayor, 5 Barb. [N Y.], 218; Cooley, Const. Lim., 234, 260; Carrón v. Martin, 69 Am. Dec. [N. J.], 584; St. Paul v. Laidler, 72 Id. [Minn.], 89; Law v. People, 87 111., 387; Oliver v. Keightley, 24 Ind., 514; McCoy v. Briant, 53 Cal., 247; Leavenworth v. Norton, 1 Kan., 432; Sherman v. Carr, 8 R. I., 433; Huesing v. Rock Island, 128 111., 465; St. Louis v. Tel. Co., 96 Mo., 623.</p>

Heard below before Field, J. New matter must be specifically pleaded in the reply as in the answer. (Kimberling v. Hall, 10 Ind., 407; Hatch v. Coddington, 32 Minn., 92; Bliss, Code Pleading, sec. 211; Ockenden v, Barnes, 43 la., 619.) It is not the province of a reply to introduce new causes of action. (Hastings Sch.

<p>Original application for mandamus.</p> <p>cited: State v. Roderick, 23 Neb., 505; Roberts v. Adams Co., 20 Id., 411.</p>

<p>Error to the district court for Pawnee county. Tried below before Broady, J.</p> <p>cited: Boose v. Perkins, 9 Neb., 305; 1 Sutherland, Damages, sec. 2; State v. B. Co., 22 Neb., 330; Leach v. Wagon Co., 14 Id., 106; Bowen v. Crow, 16 Id., 556; Dicey, Parties, p. 14, sec. 12; 1 Parsons, Contracts, 11, 13; Barton v. Petit, 7 Cranch [U. S.], 200; Fox v. Abbott, 12 Neb., 330.</p> <p>cited: Leach v. Wagon Co., 14 Neb., 109; Witte v. Lockwood, 39 O. St., 143; Snowden v. Tyler, 21 Neb., 215; Boldt v. Budwig, 19 Id., 739.</p>

<p>1. Boarding Prisoners: Compensation: Liability op County. In recovering compensation for boarding prisoners, no discrimination is to be made between those committed for a violation of the criminal laws of the state, and the penal ordinances of a city of the metropolitan class, and the county will be liable to the sheriff for such compensation.</p> <p>8. -: -: Liability op City. The city, however, will be liable to the county for the amount so expended for prisoners under the penal ordinances of the city.</p>

<p>1. Dismissal: Motion to Reinstate: Improper Denial. Id March, 1888, one F. brought an action against E. to recover for various trespasses upon real estate, which it was alleged had occurred about March 15, 1884, etc. Issues were joined and the case noticed for trial April 4,1889. On the morning of that day neither F. nor his attorney were present in court, and the case being reached in the regular call of the docket was, on motion of the defendant, dismissed for want of prosecution. A motion, supported by two affidavits, to reinstate the case was filed on the next day. The motion was overruled. Held, That the action should have been reinstated, particularly as the statute of limitations would have run against many of the claims if a new action was brought.</p> <p>2. -: -: Affidavits. When affidavits filed in support of a motion to reinstate a case are not denied, for the purpose of the motion they will be taken as true.</p> <p>3. Briefs: Improper Insinuations. Where the character of the parties or the attorneys is not involved in the case, all imputations or insinuations against them in the briefs, are improper and prejudicial to the party making them. Nor will the court sanction insinuations against the trial judge.</p>

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

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

<p>Error to the district court for Saunders county. Tried below before Post, J.</p> <p>cited: Maxwell, PI. & Pr., 139, 700, 702; Jones, Mortgages, sec. 1473; Bowen v. Wood, 35 Ind., 268; Aldrich v. Lapham, 6 How. Pr. [N. Y.], 129; Drury v. Clark, 16 Id., 424; Rosenfield v. Chada, 12 Neb., 25; Stockwell v. Carpenter, 27 la., 119; Belmont v. Smith, 1 Duer [N. Y.], 675; Monroe v. West, 12 la., 119; Merrett v. Pearson, 76 Ind., 44; Carson’s Lessee v. Boudinot, 2 Wash. [U. S.], 33; Irish u. Lundin, 28 Neb., 84; Null v. Jones, 5 Id., 500; Mills v. Bice, 3 Id., 76; Huston v. Craighead, 23 O. St., 198; Vose v. Woodford, 29 Id., 246; Campbell v. Boggs, 48 Pa. St., 524; Bowman v. Sanborn, 18 N. H., 205 ; Plumer v. Clark, 59 Wis., 646; Sturges v. Burton, 8 O. St., 215; McKinney v. McKinney, Id., 423; Sheets v. Baldwin, 12 O., 121; Riley v. Corwin, 17 Hun [N. Y.], 597.</p> <p>cited cases referred to in opinion.</p>

<p>1. County Board: Rulings on Claims Against County: Appeal. An appeal will lie from the action of a county board in allowing or rejecting claims against the county, but to authorize such an appeal it must appear from the proceedings of the board that they have taken final action upon such claim by either allowing or rejecting the same in whole or in part.</p> <p>2. -: -: Mandamus: Set-Off. Mandamus will issue in a proper case, to compel a county board to act upon a claim against the county where final action has been refused, but in a proceeding in mandamus the court will not determine the validity of any offset set up by the county.</p>

<p>Error to the district court for Hamilton county. Tried below before Bates, J.</p> <p>cited, as to the validity of the votes: Cooley, Const. Linn, 599, 616, 618; People v. Maynard, 15 Mich., 463; Panning v. Carpenter, 20 N. Y., 447; Dobson v. Dobson, 7 Neb., 296; Parker v. Kuhn, 19 Id., 396; State v. Leavitt, 33 Id., 285; Ft. Dodge v. Dist. Twp., 17 la., 85; Barry v. Lauek, 5 Cold. [Tenn.], 588; Foster v. Scarff, 15 O. St., 532; People v. Salomon, 46 111., 415.</p>

<p>Error to the district court for Franklin county. Tried below before Gaslin, J.</p> <p>cited, as to the bill of exceptions: Scott v. Waldeck, 11 Neb., 526; Morehead v. Adams, 18 Id., 571; Gibson v. Gibson, 24 Id., 409; Seward v. Klenck, 30 Id., 775. As to the execution and filing of conveyances: Hershiser «. Higman, 31 Neb., 531; Tripp v. Natl. Bank, 48 N. W. Rep.[Minn.], 5; Banks v. Barbed Wire Co., 20 Neb., 315; Batten v. Smith, 22 N. W. Rep. [Wis.], 807; Kan. Mfg. Co. v. Gandy, 11 Neb., 418. Under the common law the term month meant a lunar month. (2 Blackstone, 141; 2 Coke, Lit., ch. 2, sec. 303; Barksdale v. Morgan, 4 Mod. Rep. [Eng.], 185 ; Bacon v. Hooper, 6 T. R. [Eng.], 224; Redmond v. Glover, 1 Dud. [Ga.], 107; Rives v. Guthrie, 1 Jones [N. Car.], 84; Boring v. Hailing, 15 Johns. [NY.], 119; Glenn v. Hebb, 17 Md., 265; State v. Jacobs, 2 Harr. [Del.], 548.) According to the spirit and intent of the law the transfer should operate as a general assignment for the benefit of all creditors. (White v. Cotzhausen, 129 U. S., 339; Preston v. Spaulding, 120 111., 208; Rochester v. Armour, 8 S. Rep. [Ala.], 780; Putney v. Freisleben, 11 S. E. Rep. [S. Car.], 337; Wilks v. Walker, 22 S. Car., 108; Miner’s Natl. Bank Appeal, 57 Pa. St., 193’; Winner v. Hoyt, 66 Wis., 227; Straw v. Jenks, 43 N. W. Rep. [Dak.] 941; Kellog v. Richardson, 19 Fed. Rep. [Mo.], 70; Kerbs v. Ewing, 22 Id., 693; Freund v. Yagerman, 26 Id., 812; Welch v. Sachet, 12 Wis., 270; Day v. Griffith, 15 la.,. 104; Hood v. Brown, 2 O., 266; Jackson v. Richards, 6 Cow; [N. Y.], 617.</p> <p>As between the parties a pre-existing debt is a sufficient consideration to support a subsequent mortgage. ( Ward v. Parlin, 30 Neb., 376; Jordan v. White, 38 Mich., 253; Cooley v. Hobart, 8 la., 358.) A debtor may prefer his creditors. (Davis v. Scott, 22 Neb., 154; Joiner v. Van Alstyne, Id., 172; Bonus v. Carter, Id., 504; Bierbower v. Polk, 17 Id., 268; Nelson v. Garey, 15 Id., 531; Grimes v. Farrington, 19 Id., 48; Lining er v. Raymond, 12 Id., 19.)' The findings of a referee, like the verdict of a jury, will not be set aside unless they are clearly wrong. (State v. Bennett, 19 Neb., 191; Brown v. O’Brien, 4 Id., 199; Hartley v. Dorr, 15 Id., 451; Potvin v. Curran, 13 Id., 302.) When months are mentioned in a statute, they are understood to be calendar months. (Glore v. Hare, 4 Neb., 132.)</p>

<p>Error to the district court for Douglas county. Tried below before Clarkson, J.</p> <p>cited: Laws v. Vincent, 16 Neb., 215; Commonwealth v. Hanley, 9 Pa. St., 513; Dillon, Mun. Corp., sec. 220; McCall v. Byram Mfg Co., 6 Conn., 428; Cordiell v. Frizell, 1 Nev., 130; Queen v. Durham, 10 Mod. [Eng.], 146; People v. Runhle, 9 Johns. [N. Y.], 147.</p>

<p>Forgery: Insufficient Evidence. In a prosecution for uttering a forged promissory note, knowing it to have been forged, fieM, that the proof was insufficient to sustain the verdict.</p>

<p>1. Arson: Information: Names of Owners. In an information for arson in setting fire to a building tbe ownership thereof may be alleged to be in the party in possession because the offense is against the habitation. Where, however, the offense charged is the burning of .certain “ stacks of wheat of the value of $300,”, etc., the names of the owners thereof must be alleged and proved.</p> <p>2. -: Instructions as to Yalujb. Under a statute which declares, “if any person shall willfully or maliciously set fire to, or burn or cause to be burned, any barrack or stack of hay, wheat, etc., * * * the property of another, of the value of $30 or upwards, ” an instruction thit if the property “is of some value you will find said Edward Hoagland guilty,” is erroneous.</p> <p>3. -: Reasonable Doubt. An instruction that “If you find the defendants tendered a reasonable doubt ” is erroneous, as it in effect shifts the burden of proof onto the accused. The true rule is that if upon all the evidence the jury entertain a reasonable doubt of the guilt of the accused they should acquit.</p>

Tried below before Morris, J. There must first be proof of corpus delicti,.and second, proof connecting the defendant therewith. [In re Balcom, 12 Neb., 317; In re Carleton, 11 Id., 99; Ex parte Barker, Id., 309.) The police judge, therefore, had no power to commit to jail.

<p>1. Error Proceedings: Time: Rule Changed. Proceedings in error in the supreme court may be commenced within one year from the time the motion for a new trial is overruled. Hollenbeck v. Tarkington, 14 Neb., 430, overruled.</p> <p>2. District Court: Adjournment: Evidence. A cause in the seventh district was submitted to the judge of the ninth district and by him taken under advisement and held for many months, and a decision rendered at a time to which it was claimed the court had been adjourned. No journal entry showing such adjournment was produced, and the affidavits were too uncertain to justify the court in holding that there was an adjourned term.</p> <p>3. Tax Deeds: Redemption. Upon the record presented, held, that the tax-deeds did not convey the title to the land, and the plaintiff would have the right to redeem upon paying the taxes due, with interest thereon.</p> <p>4. Dismissal Without Prejudice. After a cause is submitted to the court the right of the plaintiff to dismiss the cause without prejudice without leave of court is at an end.</p>

<p>1. Sale: Warranty: Waiver of Defects. A written warranty of a reaper contained these provisions: “If on starting a machine it should in any way prove defective, or fail to work, the purchaser shall give prompt written notice to the agent from whom he purchased it, aud allow sufficient time fora person to be sent to put it in order, and the defective part, if any, replaced, the purchaser rendering necessary and friendly assistance.” Held, That a substantial compliance with these provisions was necessary to entitle the purchaser to rescind the contract and return the machine.</p> <p>2. -: -: -. That the manufacturers had acted with reasonable promptness after notice of the defect, in sending experts to adjust the machine and put it in running order, and that the refusal of the purchaser to permit them to adjust the machine and put it in order was a waiver of the defects.</p>

Heard below before Wakeley, J. The three appellants are purchasers in good faith (Aultman v. Patterson, 14 Neb., 58; Bishop, Contr., secs. 748, 753; Bank v. Ellis, 30 Minn., 270; De Couroey v. Collins, 21 N. J. Eq., 357; Lowe v. Wing, 56 Wis., 31; Rockwell v. Humphrey, 57 Id., 410), and for value. {Thurman v. Stoddard, 63 Ala., 336; Fellows v. Prentiss, 3 Denio [N. Y.], 512; Appleton v. Parker, 15 Gray [Mass.], 173; Kittle v. Wilson, 7 Neb., 76; Daniel, Neg.

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

<p>Illegal Fees: Action for Taking: Parties Plaintiff. An action to recover the penalty imposed by section 3034 Consol. Stats, (sec. 34, ch. 28, Comp. Stats,), for the taking of illegal fee-i by an officer, can only be brought by the party injured or damaged by the taking of such fees.</p>

<p>1. Bailment: Depositum: Negligence. Held, That the evidence j ustified the jury in finding that the defendant was a bailee without hire, and that the bailee was guilty of gross negligence.</p> <p>2. -: -: Liability oe Bailee. A gratuitous bailee is liable for injury to property entrusted to his care occasioned by gross negligence.</p> <p>3. -■: -: The Instructions given fairly stated the case to the jury, and those requested by defendant were properly refused.</p>

<p>Error to the district court for Sarpy county. Tried below before Clarkson, J.</p> <p>cited: House v. Wilder, 47 111., 510; Oleson v. Hendrickson, 12 la., 222; Robinson v. R. Co., 30 Id., 401; R. Co. v. Shuckman, 50 Ind., 42; R. Co. v. Henks, 91 111., 406.</p> <p>cited: Jammers v. Nissen, 4 Neb., 245.</p>

<p>Final Order: Quashing Summons is Not. An order of the district court quashing the service of a summons cannot he reviewed by this court before final judgment is rendered in the action.</p>

<p>1. Judicial Notice: Political Events. Courts will take notice, without proof, of events which are generally known within the limits of their jurisdiction. . This will include changes in the office of the chief executive and such acts of public and general -interest as may be said to be conspicuous events in the history of the state.</p> <p>2. Quo Warranto: Relator Must Show the Better Title. One who seeks by quo warranto proceeding to obtain possession of an office held by another must show that he has a better title to such office than the incumbent.</p> <p>3. -: Abandonment of Office by Relator. When the only claim of the relator to an office is the right to hold over after the expiration of his term, on the ground that the respondent, his successor elect, is ineligible, and while the action is pending and undetermined he voluntarily abandons the office in controversy and surrenders it to the respondent, such act will disqualify him to further prosecute as relator, and amounts to-an abandonment of the action.</p>

<p>Original application for mandamus.</p> <p>cited: State v. Andrews, 11 Neb., 523; Statev. Weber, 20 Id., 467; Pelton v. Drummond, 21 Id., 492; State v. Reynolds, 18 Id., 431.</p>

<p>Error to the district court for Sarpy county. Tried below before Doane, J.</p> <p>cited: Temple v. Smith, 13 Neb., 514; Jones v. Hetherington, 45 la., 681; Savage v. Hazard, 11 Neb., 328; JDorrington v. Minniok, 15 Id., 401; Lane v. Starkey, Id., 289 ; Herrmann, Chat. Mort., 229, 236; Brunswick v. McClay, 7 Neb., 138; Anderson v. Peterson, 25. N. W. Rep. [Wis.], 541; Freeman v. Rawson, 5 O. St., 1; Harman v. Abbey, 7 Id., 218; Totten v. Ellison, 3 Neb., 75.</p> <p>cited: Hedían v. Anderson, 6 Neb., 400; Chicago Jjumber Co. v. Fisher, 18 Id., 337; Aultman v. Steinan, 8 Id., 114.</p>

<p>Rehearing of case reported 33 Neb., 354.</p>

<p>Corporations: Pleading. An action for personal injuries was - brought against “ G. F. S. & Co., a corporation formed and doing, business in Douglas county, Nebraska.” In the answer and amended answer of G. F. S. & Co. they styled themselves the defendants,-and denied that the corporation was formed under the laws of Nebraska, but made no denial that it was a corporation. An amended petition was thereupon filed against S. & Co., a corporation formed under the laws of Illinois and doing business in Nebraska. To this amended petition the corporation answered as-defendant and denied the injuries of the plaintiff and pleaded negligence on his part. Held, There being no denial of the corporation of S. & Co. and G. F. S. & Co., that, so far as the pleadings show, they formed one and the same corporation, and that the place where the corporation was formed was not a material fact in the case.</p>

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

<p>Error to the district court for Buffalo county. Tried below before Church, J.</p> <p>cited : Wilson v. Gerhardt, 9 Colo., 585; Wall v. Hind, 4 Gray [Mass.], 356; Damb v. Hoffman, 3 E. D. Smith [N. Y.], 361; Bailey v. Wells, 8 Wis., 141; Shaw v. Partridge, 17 Yt., 626; Smith v. Harrison, 42 O. St., 180; Kittle v. St. John, 7 Neb., 75; Thomas v. Nelson, 69 N. Y., 118; Toiler. Orth, 75 Ind., 298; Melting v. Beaker, 96 Pa. Sfc., 182; Allen v. Saunders, 6 Neb., 442; Auer v. Penn, 99 Pa. Sfc., 370; Meyer v. Smith, 33 Ark., 627.</p> <p>cited: C., K. & N. It. Co. v. Wiebe, 25 Neb., 542; Whitehead v. Clifford, 5 Taunt. [Eng.], 518; Everett v. Williamson’s Trustees, 12 S. E. Rep. [N. Car.], 187, and cases cited; Bank of U. S. v. Maaalester, 9 Pa. Sfc., 475; Wyckoff v. Anthony, 90 N. Y., 442; Colbrooke, Collateral Securities, 83; Mason Savings Bank v. Bangs, 84 Ky., 135.</p>

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

<p>1. Duress: Conveyances: Husband and Wipe. In an action by a wife against her husband and his sister to set aside a conveyance of real estate of the wife alleged to have been conveyed - under duress, there was testimony tending to show such duress on the part of the husband, and that the grantee was not a bona fide purchaser. Held, That a decree that the purchaser pay the plaintiff the sum of $500 and assume a certain mortgage on the property or be barred, was supported by the evidence.</p> <p>2. -: -: -. There was no error in permitting the plaintiff to dismiss the case as to the husband.</p> <p>3. -: -: -. The testimony shows that the plaintiff and Edward C. Goodrich were husband and wife and the decree so fiuding is in conformity to the proof.</p>

<p>Appeal from the district court for Hamilton county.</p> <p>cited : Pomeroy, Remedies, sec. 337; Ourtis v. Tyler, 9 Paige Ch. [N. Y.], 432; King v. Whiteley, 10 Id., 465; Klapworth v. Dressier, 78 Am. Dec. [N. J.], 69, and note; Jones, Mortgages, sees. 755, 758, 760; Boone, Id., sec. 128; Keller v. Ashford, 133 IT. S., 610; Shamp v. Meyer, 20 Neb., 226; Crowell v. Hospital, 27 N. J. Eq., 655; Biddell v. Brizzolara, 64 Cal., 361; Stuart v. Worden, 42 Mich., 154; Vrooman v. Turner, 69 N. Y., 280; Dunning v. Leavitt, 85 Id., 35; Simson v. Brown, 68 N. Y., 355; Garnsey v. Rogers, 47 N. Y., 233; Lake Ont. R. Co. v. Curtiss, 80 N. Y., 223; Natl. Bank v. Grand Lodge, 98 U. S., 123; note to Austin v. Seligmen, 18 Fed. Rep. [N. Y.], 523; Merriman v. Moore, 90 Pa. St., 78; Dean v. Walker, 107 111., 540; Northern Dispensary v. Merriam, 59 How. Pr. [N. Y.], 226; Waring v. Somborn, 82 N. Y., 604; Bull v. Tits-worth, 29 N. J. Eq., 73; Conlan v. Grace, 30 N. W. Rep. [Minn.], 883; Clapp v. Maxwell, 13 Neb., 542; Maxwell, PI. & Pr., 599, 600.</p> <p>cited : Cooper v. Foss, 15 Neb., 516; Bond v. Dolby, 17 Id., 491; Keedle v. Flack, 27 Id., 836; Rockwell v. Bank, 31 Id., 128; Milliani v. Tognini, 7 Pac. Rep. [Nev.], 279; Merriman v. Moore, 90 Pa. St., 80; Putney v. Farnham, 27 Wis., 187.</p>

<p>Error to the district court for Lincoln county. Tried below before Hamer, J.</p> <p>cited : Campbell v. Sutton, 12 Neb., 524; Miller v. Rolph, 8 Id., 439.</p>

<p>Error to the district court for Douglas county. Tried below before Doane, J.</p> <p>cited: Eehhart v. Wilson, 10 S. <& R. [Pa.], 52; Geary v. Bennett, 27 N. W. Rep. [Wis.], 336; Frazier v. McGloslcy, 60 N. Y., 338; Boldtv. Budwig, 19 Neb., 744, 745; Rosewater v. Hoffman, 24 Neb., 230, and cases.</p> <p>cited: Tootle v.- Jones, 19 Neb., 558; Townshend, Slander & Libel [4th Ed.], secs. 392, 394; Cribble v. P. P. Co., 25 N. W. Rep. [Minn.], 710; Reneway v. Thorp, 43 N. W. Rep. [Mich.], 863; Newell, Defamation, Slander & Libel, sec. 35; Reitan v. Goebel, 22 N. W. Rep. [Minn.], 291; Wabash Pr. & Pub.Co. v. Cmmrine, 21 N. E. Rep. [Ind.] 904; Craker v. R. Co., 36 Wis., 657; Cooper v. R. Co., 66 Mich., 26L</p>

<p>Railroads: Crossings: Repair: Negligence. It' is the duty of every railroad company in the state to properly construct and maintain in good repair crossings over all public highways on the line of its road, so that the same shall be safe and convenient for travelers, so far as it can do so without interfering with the safe operation of the railroad. If it is negligent in that regard, and by reason thereof a person without fault is injured in his property while traveling over a defective crossing, the corporation owning or operating such railroad is liable for the damages sustained.</p>

<p>Error to the district court for Adams county. Tried below before 'Gasuin, J.</p> <p>cited; Marseilles Mfg. Co. v. Morgan, 12 Neb., 68.</p>

<p>Conveyances: Defective Abstract: Remote Damages. A party who was the actual owner of a farm and in possession! thereof, traded the same, subject to a mortgage of |800, but the grantee, in consequence of the omission of a deed in the grant- or’s chain of title on the record, was unable to effect a loan on the farm, in consequence of which the mortgage was foreclosed! and the grantee evicted. No fraud was charged against the; grantor and he afterwards procured a second deed to supply the; missing link in his chain of title. Held, That damages for the; loss of the iarm were too remote and could not be recovered, against the grantor.</p>

<p>1. Garnishment Sale: Eights ov Third Party: Purchaser With, Actual Notice. A mother loaned her son $2,000 and received from him a chattel mortgage upon a crop of corn in the field; 876 bushels of this corn were stored with E. M.& Co., when one M. recovered a judgment against the son, and the officer being unable to levy upon the property returned the execution unsatisfied, whereupon proceedings in garnishment were instituted against E. M. & Co., who answered, admitting the possession of the corn, and an order of "sale was thereupon issued to the officer, who levied upon the corn and advertised it for sale at a time and place stated. An hour or two before the time stated for the sale the mother instituted an action of replevin, and notice thereof was served upon the officer before the sale, and the plaintiff also had notice of the mother’s claim, but notwithstanding purchased the corn. Held, That a verdict in favor of the mother was supported by the clear weight of evidence.</p> <p>2. -: -: -. A purchaser who has actual notice of the claim of a third party in the property, purchases subject to such rights, although the instrument under which the third party claims is not upon record.</p> <p>3. Witnesses: Evidence. Where a witness has testified that certain things transpired in the presence of a party to the suit and such party in his testimony says that he does not remember whether or not the things stated took place, this is not a denial of the testimony of the first witness.</p>

Appeal to the district court for Lancaster county. Heard below before Chapman, J. The contract of conveyance is an entire and inseparable one, and consequently cannot be rescinded in part and enforced as to the residue. (Miner v. Bradley, 22 Pick. [Mass.], 457; 1 Wait, Actions & Defenses, 75; Kelly v. Humboldt Fire Ins. Go., 5 Cent. Rep. [Pa.], 484; Gottsman v. Ins. Co., 56 Pa.

<p>1. Chattel Mortgages: Duress. Held, That the evidence failed to show that the ’chattel mortgage under which the defendan t claims title was executed under duress.</p> <p>2. -: -: Ratification. That the instructions complained of conformed to the proof on the question of ratification.</p>

Tried below before Appelget, J. It is an elementary principle that an appeal by any party to the case carries to the appellate court the whole case, and all parties connected with the case must follow it. (Wilcox v. Saunders, 4 Neb., 572; Rogers v. Russell, 11 Id., 362; O’Leary v. Lskey, 12 Id., 136; Hawaii v. Brewer, 16 Id., 444; Bells v. Haggard, 21 Id., 361; TJ.

Tried below before Broady, J. Having paid the mortgage Billings had the right to sue on the policy. {Ins. Co. v. Davenport, 37 Mich., 613; Hatch v. Ins. Co., 13 Rep. [Colo.], 293; Coates v. Ins. Co., 58 Md., 172; Art. 18, Am. L. Reg., 737; V. F.& M. Ins. Co. v. Feagin, 9 Rep. [Ga], 173.) On the question of waiver: Butz v. Ins. Co., 76 Mich., 263; Phoenix Ins. Co. v. Barnd, 16 Neb., 90; Oshkosh G. L. Co. v. Ins. Co., 71 Wis., 454; Titus v. Ins. Co., 81 N. Y., 410; Ins.

<p>Error to the district court for Gage county. Tried below before Broad y, J.</p> <p>cited: A. & N. JR. Co. v. Washburn, 5 Neb., 124; B. & JMJ. IL Co. v. Lancaster Co., 7 Id., 38; Jones v. Seward Co., 10 Id., 161; Ins. Co. v.Barnd, 16 Id., 90; JR. Co. v.JLimdstrom, Id., 263.</p> <p>cited: Search v. Miller, 9 Neb., 30; 1 Dan., Neg. Iiist., sec. 812; 2 Id., sec. 1220; 1 Herman, Est. and Res Ad., 24, 38, 40; Id., 143Ó-1 ; U. P. P. Co. v. McCarty, 8 Kan., 125; Wescott v. Brown, 13 Ind., 83; Larum v. Wilmer, 35 la., 244; Knowlton v. Parsons, 10 Neb., 505.</p>

Tried Sbelow before Tiffany, J. The defense of duress cannot be set up by a stranger or surety. Before such defense will prevail, there must have been some consideration exacted for a corrupt agreement to ¡not prosecute a felony. (Oak v. Dustin, 3 New Eng. Rep. £Me.], 614; Am. Crim. Law, sec. 10; Bishop, Contracts, 494, 720; Heaps v. Dunham, 95 111., 588; Taylor v. Cottrell, 16 Id., 93). As to the defense of duress: Hilborn v. Buclcnam, 3 New Eng.

Tried below before Broad y, J. cited, contending that the excluded testimony was competent: Bliss, Code PI., sec. 347; Dobson v. Pearce, 12 N. Y., 156; Grimes v. Sherman, 25 Neb., 848; 1 Jones, Mort., secs. 285, 287, and cases cited; Id., sec. 288, cases cited in note 6; Anthony v. Anthony, 23 Ark., 479; Piercer.

Tried below before Appelget, J. In an action on an instrument for the payment of money, a general denial is inconsistent with a plea of no consideration, and substantially admits the execution of the instrument. (School Dist. v. Holmes, 16 Neb., 486; Douglas v. Matting, 29 la., 498; Dinsmore v. Stimbert, 12 Neb., 433.)

<p>1. Corporations: Issue op Stock: Shareholders’ Prior Right to the Increase. A corporation can issue its'stock only by direction of the corporation, and unless there are stipulations in its charter to the contrary, its stockholders are entitled pro rata to a preference in the purchase of the new stock.</p> <p>2. -: -: Injunction. Stock held to have been illegally issued and injunction properly granted.</p>

<p>Error to the district court for Gage county. Tried below before Appelget, J.</p> <p>cited: Moore v. Kepner, 7 Neb., 291; Lininger v. Raymond, 9 Id., 40; Pratt v. Donovan, 10 Wis., 320.</p> <p>cited: Deroin v. Jennings, 4 Neb., 100; Stevenson v. Anderson, 12 Id., 86; Singer Mfg. Co. v. Doggett, 16 Id., 611.</p>

Tried below before Appelget, J. The summons was served by reading, and this court has held such service insufficient. (Newlove v. Woodward, 9 Neb., 502.) Attachment is a statutory proceeding, and can. be prosecuted-only in the manner pointed out by statute. (Miller v. Mason, 51 la., 239; Waples, Attachment, 372.) A valid judgment against the principal defendant is essential to authorize a judgment against the garnishee. (Frisk v. Reigelman, 75 Wis., 499; 8 Am. & Eng. Ency.

<p>1. Account: Assignment: Consideration. Where there is au absolute assignment of an account, so that the assignor parts with his entire interest therein, as between the parties the amount of consideration therefor is not a material inquiry.</p> <p>2. -: -: -: Defenses. If there was a defense to the account when assigned, and the assignee is a mere donee, the same defense may be interposed as if the action was by the assignor. If the assignor claims as a bona fide purchaser and the rights of creditors are affected, the amount and kind of consideration become material.</p> <p>3. -: -: -. No defense having been shown against the account, error of the court in restricting the cross-examination of certain witnesses as to the consideration for the assignment held not prejudicial.</p> <p>4. Review. Evidence held to sustain the verdict, and there is no error in the record.</p>

<p>Sale: Breach of Warranty: Waiver. In an action upon an account for oil the answer was, in substance, that the goods were of au inferior quality and a warranty. It appeared that a considerable part of the oil had been returned and accepted ; that oil of the value of $26.05, to which no objection had been made, had been retained; that $5.39 had been paid on the account, in addition to the amount sold from the barrels returned. Held, That a verdict for the defendant would not be sustained.</p>

Tried below before Morris, J. Where the purchase money is to be paid when the goods are delivered, the plaintiff must plead and prove that he was able, ready, and willing to pay the purchase money at the time and place of delivery.

<p>Error to the district court for Kearney county. Tried below before Gaslin, J.</p> <p>cited: Pope v. Hooper, 6 Neb., 185; Turney v. Young, 22 111., 253; Rorer, Void Jud. Sales, sec. 10; Morris v. Hogle, 37 111., 155; Huntington v. Finch, 3 O. St., 448; Hoard v. Hoard, 41 Ala., 590; Guy v. Pierson, 21 Ind., 18; Johnson v. Johnson, 30 111., 215; Gerrard v. Thompson, 12 Ind., 636; Valle v. Fleming, 19 Mo., 454 ; French v. Hoyt, 6 N. H., 370; Rankin v. Miller, 43 la., 11; Michel v. Hicks, 19 Kan., 578; Sibley v. Waffle, 16 N. Y., 180; Winston v. McLendon, 43 Miss., 254.</p> <p>cited: Keene o. Sallenback, 15 Neb., 200; Scudder v. Sargeant, Id., 102; McClay v. Foxworthy, 18 Id., 295; Sheldon’s Lessee v. Newton, 3 O. St., 494-508 ; Paine’s Lessee v. Mooreland, 15 O., 436; Robb v. Lrwin’s Lessee, Id., 700; Bnevely’s Lessee v. Lowe, 18 Id., 368; Benson v. Cilley, 8 O. St., 605; Trumble v. Williams, 18 Neb., 145; Seward v. Didier, 16 Id., 62; Seymour v. Ricketts, 21 Id., 240.</p>

<p>Stare Decisis. Errors assigned overruled, and former judgment adhered to.</p>

<p>1. Lis Pendens. Under section 85 of the Code, as it existed prior to 1887, where an action had been brought which affected the title or possession of real estate, and tummons had been served or publication made, third parties were charged with notice of the pendency of the action, and while the action was pending could acquire no interest in the subject-matter as against the plaintiff’s title.</p> <p>2. -: Stare Decisis. In the case of Little v. Giles, 25 Neb., 313, and 27 Id., 179, it was decided that Miles had no interest in the property in controversy, and hence his grantees took no interest therein.</p>

Motion to dismiss cross-appeal, quash bill of exceptions, and compel an election. The appeal sought now to be docketed here is in no sense a “cross-appeal,” because it does not affect appellants Kent and Tarr. (Emerick v. Armstrong, 1 O., 513; Ewers v. Rutledge, 4 O. St., 210; Lowrenz v. Penn, 10 W. L. J. [O.], 75; Glass v. Greathouse, 20 O., 512; Hamilton v. Whitney, 19 Neb., 307.) An appellant may dismiss his appeal, notwithstanding his adversary has also appealed.

Ehror to the-district court for Buffalo county. Tried below before Hamer, J. cited, contending that the judgment was conclusive and could not be attacked collaterally: Jolmson v. Jones, 2 Neb., 133; Keybers v. McComher, 67 Cal., 395; Michels v. Stork, 52 Mich., 260; Pees v. Wetmore, 58 la., 170; Gregory v. Bovier, 77 Cal., 121; McCurdy v. Baughman, 43 O., 78; Cumberland Co. v. Boyd, 113 Pa.

<p>Error to the district court for Saline county. Tried-below before Morris, J.</p> <p>eited: Jones, Chat. Mtgs., secs. 492, 496,801, 803; Pecker v. Silsby, 123 Mass., 108; Dwight v. Dumber Co., 36 N. W. Rep. [Mich.], 752; Clapp v. Campbell, 124 Mass., 50; Landoñ v. Emmons, 97 Id., 37; Ruggs v. Barnes, 2 Cush. [Mass.], 591 ; Earl v. Burch, 21 Neb., 709; Harris v. Lynn, 25 Kan., 281; Campbell v. Wheeler, 69 la., 588; Wykler v. Crane, 53 111., 490.</p> <p>cited: Ln-. inger v. Herron, 18 Neb., 450; Id., 23 Id., 197; Jones, Chat. Mtgs., sec. 435; Charter v. Stevens, 3 Denio [N. Y.], 35; Morris Canal & Banking Co. v. Fisher, 1 Stockt. [N. J.], 667; Same v. Lewis, 1 Beas. [N. J.], 323; Freeman v. Preeman, 17 N. J. Eq., 47; Bird v. Davis, 14 Id., 468; F'orbes v. Parker, 16 Pick. [Mass.], 462; Welch v. Whittemore, 25 Me., 86; Googins v. Gilmore, 74 Am. Dec. [Me.], 472; McConnellv. Leighton, 74 Me., 415, and cases; Pratt v. Stiles, 17 How. Pr. [N. Y.], 221; Haskins v. Kelly, 4 Abb. Pr. N. S. [N. Y.], 73; Stoddard v. Dennison, 7 Id., 315; Coe v. Cassidy, 72 N. Y., 138; Atkins v. Plosley, 3 T. & C. [N. Y.], 326.</p>

<p>1. Penitentiary Imprisonment: Term Dates From Sentence. Under section 518 of the Criminal Code the term of imprisonment of one sentenced to the penitentiary dates from the sentence and not from the delivery of the prisoner to the warden of the penitentiary.</p> <p>2. -: Under the “ Good Time Act,” where the sentence does; not exceed two years, and no charges are registered against the prisoner, he is entitled to a deduction of one-sixth of the term of imprisonment, viz., two months for the first and second years, and in the same proportion for iractional parts thereof.</p>

Tried below before Harrison, J. cited, to the contention that a new trial should have been awarded on the ground of surprise, etc.: Volland v. Wilcox, 17 Neb., 46; Leighton v. Dixon, 42 Kan., 618; Symons v. Bunnell, 80 Cal., 330; Robertson v. Williams, 81. Id., 268; First Natl. Bank v. Harwich, 74 la., 227; Donnelly v. McAdams, 13 Atl.

<p>Error to the district court for Douglas county. Tried below before W arele Y, J.</p> <p>cited: Lucas v. King, 2 Stock. Ch: [N. J.], 277; Overton v. WooJfolk, 6 Dana [Ky.], 371; Kelley’s Heirs v. McGuire, 15 Ark., 555; Perkins v. Simonds, 28 Wis., 90; Warren v. Englehart, 13 Neb., 283; Robert’s Appeal, 39 Pa. St., 417; McWilliams v. Ross, 46 Id., 369; Pierson v. Be Hart, 2 Pen. [N. J.], 73; Walker, Am. Law, 379, 397; 2 Blackstone’s Com., 243; West v. Williams, 15 Ark., 683; Scull v. Vangine, Id., 695; Campbell v. Ware, 27 Id., 65; Beard v. Mosley, 30 Id., 517; Oliver v. Vance, Jr., 34 Id., 590; Miller v. Speer, 38 N. J. Eq., 567; Hart’s Appeal, 8 Pa. St., 32; Walker v. Bunshee, 38 Id., 430; Tillinghast v. Coggershall, 7 R. I., 383; Gardner v. Collins, 2 Pet. [U. S.], 90; Shellenberger v. Ransom, 31 Neb., 61; Prickett v. Parker, 3 O. St., 394; Patterson v. Lamson, 12 N. E. Rep. [O.], 531; Atkins v. Atkins, 9 Neb., 191; Breseev. Stiles, 22 Wis., 120; Ruth v. Oberbrunner, 40 Id., 238.</p> <p>cited: Seymour v. Ricketts, 21 Neb., 240.</p>

Tried below before Appelq-et J. To constitute a legal contract to forbear, there must be a valid promise to do so, so that for some time the holder of the debt has no right to maintain an action thereon. (Mecorney v. Stanley, 8 Cush. [Mass.], 85; Robinson v. Gould, 11 Id., 55; Manterv. Churchill, 127 Mass., 31; Berry v. Pullen, €9 Me., 101; Turner v. Williams, 73 Id., 466; Lambert v. Clewley, 15 Atl.

<p>1. Supreme Court: Practice: Objections Not Raised. No> objection to the procedure to obtain a modification of a decree of foreclosure and sale being made in the district court, the objection will be unavailing if made for the first time in the supreme court.</p> <p>2. Interest. The court'found the amount due on certain notes and mortgages to be the sum of $1,431.60, and afterwards, on motion, reduced the same to $1,374.80. Held, That all the notes were to he considered as parts of one transaction, and that the interest thereon did not exceed the legal limit, and that the court erred in reducing the amount of the decree.</p>

<p>Error to the district court for Gage county. Tried below before Appelget, J.</p> <p>cited, as to the admissibility of the testimony: McElhinney v. Hendricks, 48 N. "W. Rep. [Ia.], 1056; Kan. Mfg. Co. v. Wagoner, 25 Neb., 442; Stevenson v.' Valentine, 27 Id., 343.</p>

<p>Exceptions from the district court for Richardson county. Tried below before Appelget, J.</p> <p>The act is unconstitutional. (Pleuler v. State, 11 Neb., 547; Mette v. Me Guckin, 18 Id., 324; White v. Lincoln, 5 Id., 516; Hamlin v. Meadville, 6 Id., 234; Miller v. Hurford, 11 Id., 381 — 2; State v. Perldns, 53 N. H., 435 ; 2 Green, Crim. Rep., 332.) A physician not holding a permit or license may be prosecuted for having liquors in his possession with the intention of disposing of the same. (State v. Cummings, 17 Neb., 311; State v. Benadone, 44 N. W. Rep. [la.], 218.) The law makes the possession of liquors aprima facie case of guilt. (Thompson v. People, 4 Neb., 529.)</p> <p>cited, contending that the act of 1889 was unconstitutional: State, ex rel. Jones, v. Lancaster Co., 6 Neb., 484; Boggs v. Washington Co., 10 Id., 299; Ives v. Norris, 13 Id., 252; Smails v. White, 4 Id., 353; State v. Pierce Co., 10 Id., 477; Richards v. State, 22 Id., 149; Ryan v. State, 5 Id., 276; Tecumseh v. Phillips, Id., 311 ; A. & N. R. Co. v. Baty, 6 Id., 37; Sovereign v. State, 7 Id., 412; Lancaster Co. v. Hoagland, 8 Id., 38; B. & M. R. Co. v. Saunders Co., 9 Id., 510; Miller v. Hurford, 11 Id., 377 — 381.</p>

<p>Error to the district court for Cass county. Tried below before Chapman, J.</p> <p>cited: Hullv. Miller, 4 Neb., 503; Tattle v. Robinson, 78 111., 332; Maxwell, Justice Pr., 97; Howland v. Fuller, 8 Minn., 50; Borlandv. O’Neal, 22 Cal., 505; State v. Melogue, 9 Ind., 196.</p> <p>cited: Town v. Wilson, 8 Ark., 465; Loomis v. Youle, 1 Minn., 175; King v. Cole, 6 T. R. [Eng.], 640; Wells, Replevin, secs. 650-2, and cases cited; Id., 658; Tripp v. Howe, 45'Yt., 523; Eddy v. Beal, 34 Ind., 161; Baker v. Dubois, 32 Mich., 92; Frink v. Flanagan, 1 Gilm. [111.], 38; Smith v. Emerson, 16 Ind., 355; Haggard v. Wallen, 6 Neb., 271; Sch. Dist. v. Mc-Intie, 14 Id., 48; Maxwell, PI. & Pr., 293; Daniels v. Cole, 21 Neb., 158; Cool v. Boche, 15 Neb., 27; Hall v. Bay, Id.; Butler v. Mason, 16 How. Pr. [N. Y.], 546; Mitchell v. Williams, 4 Hill [N. Y.], 16; Holbrook v. Wight, 24 Wend. [N. Y.], 169; Pyle v. Warren, 2 Neb., 241; Peters v. Parsons, 18 Id., 191.</p>

<p>Life Insurance: Endowment Plan: Policy is Subject to-Claims of Insured’s Creditors. While, ordinarily, a policy of life insurance payable to the wife upon the death of her husband is not subject to be applied in payment of his debts, yet where the policy is in the form of an endowment, a certain sum to be repaid after a specified number of years, the transaction is-in the nature of a loan, the insurance being a mere incident, and where the premiums have been paid by an insolvent debtor, the insurance money on such policy received by the wife during the lifetime of the husband is not transmuted so as to be hers as against creditors of the husband, but is subject to their claims.</p>

Tried below before Field, J. The mandatory injunction and order or writ of assistance, as provisional remedies, are absolutely unknown to our system of jurisprudence. Even in the absence of statutory definition and limitation, neither off these writs or orders has hitherto been used by courts of equity except for the purpose of carrying into effect their final decrees. (Farmers Ry. Co. v. Reno O. C. & P. R. Co., 53 Pa. St., 224; Audenriedv. R. Co., 68 Id., 370; Oalev.

cited, contending that the pendency of the former subs could not be pleaded in abatement: Laflin v. Brown, 7 Met. [Mass.], 576; Hatch v. Spofford, 22 Conn., 484; Downer v. Garland, 21 Yt., 362; Oraig v. Dougherty, 45 Mo., 294; Osborn v. Cloud, 23 la., 104; Moosic v. JR. Co., 13 Atl. Rep. [Pa.], 915; Cox v. Tyler, 6 Neb., 297, 302; Smith v. Lathrop, 84 Am. Dec. [Pa.], 448 and note; Delahayv.

<p>1. Seeds: A Certificate of Acknowledgment to a deed which states that “personally came Catherine Tozier, to me known to be the identical person whose name is affixed to the above instrument as grantor, and acknowledged the same to be her voluntary act and deed,” which certificate is signed by an officer authorized to take acknowledgments, and attested with his official seal, held, valid.</p> <p>2. Government Homestead: Conveyances. Where a person who has taken lands under the United States homestead law commutes his entry, pays the government for the land, and receives the usual final receiver’s receipt, he has the right to sell and convey the land, although the patent has not been issued, and the title which he afterwards acquires by the patent inures to the benefit of his grantee.</p> <p>3. Ejectment: Recovery. In an action of ejectment the plaintiff must recover on the strength of his own title or right to the property, and cannot rely on the invalidity of the defendant’s title.</p> <p>4. -: Res Ad judicata. In a suit brought in the United. States circuit court against G. K. and others to foreclose a real estate mortgage given by G., a cross-bill was filed by K., settingup title in himself to the land, with prayer that his title be quieted. G. appeared and answered the cross-bill, setting up his claim of title and pleaded in bar a former judgment. Upon the trial of said cause the issues were found in favor of K. and a decree was entered quieting and confirming his title to the land. No supersedeas bond was filed and no appeal was taken. The decree of the federal court, which was still in force, was pleaded by K. as a defense to an action of ejectment brought against him by G. to recover the same real estate. Held, That G. was concluded by said decree, and that the same was a bar to the action of ejectment.</p> <p>6. Jurisdiction: Action Pending : Waiver. While the rule founded upon comity which subsists between judicial tribunals is that the court which first acquires jurisdiction of the persons and subject-matter of the action will retain the cause until it is finally determined, yet, where the parties, while such suit is pending and undetermined, submit the controversy therein involved, without objection, to another tribunal having jurisdiction of the subject-matter, the judgment pronounced in the latter court is binding upon the parties. The objection that another suit is pending must be raised by proper pleadings, or it will be waived.</p> <p>6. Former Judgment. Where a former judgment is relied on as an estoppel in another action, it must be pleaded.</p>

<p>1. Exemptions: Fraudulent Conveyances. It is the settled law of this state that exempt property is not the subject of fraudulent sale, and that the vendee of such property takes the same free from the claims of the creditors of the vendor.</p> <p>2. Review. Held, That the charge of the court fairly submitted to the jury all questions of fact in the case, and that the verdict is supported by the evidence.</p>

<p>Review: Partnership. In an action for a partnership accounting, the defendant denied the existence of a partnership, and the evidence upon this question is conflicting. Me Id, That the findings thereon hy the trial court against the plaintiff, not being clearly wrong, will not be disturbed.</p>

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

<p>1. Review. The Yeedict of a Jury upon disputed questions of fact is final, unless it is clearly against the evidence.</p> <p>2. —-: Failure to Take Exceptions. The supreme court will not consider an objection to an instruction where no exception was taken, by the party complaining, at the time it was given.</p> <p>3. -: Undisputed Questions: Submission. Whew a case is tried to a jury, the failure to submit to them an undisputed question of fact is not error.</p> <p>4. -: Offer of Testimony. In order to predicate error upon sustaining by the court of an objection to a question propounded to a party’s own witness, the party must make an offer to prove the facts sought to be elicited by the question.</p>

<p>1. Review: Bill of Exceptions. Where it appears from an inspection of a bill of exceptions that important and material evidence introduced on the trial of the cause has been omitted therefrom, the bill of exceptions will not be considered by this court for the purpose of determining whether the verdict is supported by the evidence.</p> <p>2. -: -. The supreme court cannot review the rulings of the trial court in excluding documentary testimony, where the excluded paper is not preserved by a bill of exceptions.</p> <p>3. -: -. Objections to instructions not considered, for the reason that the charge of the court was not copied into the record brought up.</p> <p>4. -: Damages. Held, That the damages awarded by the jury are not excessive.</p>

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

<p>Error to the district court for Sheridan county. Tried below before Kinkaid, J.</p> <p>cited: Snyder v. Bruñe, 22 Neb., 190; Huffman v. Koppelkom, 8 Id., 347; Ottenstein v.Alpaugh, 9 Id., 239; Koppelkom v. Huffman, 12 Id., 98; Thomas v. Hinkley, 19 Id., 328; Murfree, Official Bonds, secs. 435, 436; Ü. S. v. Tingley, 30 U. S., 115; Horn v. Whittier, 6 N. H., 88, 94; Moore v. Graves, 3 Id., 408.</p>

Ekkok to the district court for Lancaster county. Tried below before Field, J. cited, contending that the sureties were estopped: 1 Herman, Es., secs. 2 to 10; 2 Id., secs. 630-7; Brandt, Suretyship, secs. 29, 30; Duchamp v. Nicholson, 2 Mart. N. S. [La.], 672; Lee v. Clark, 1 Hill [N. Y.], 56; Decker v. Judson, 16 N. Y., 439; Coleman v. Bean, 14 Abb.

<p>1. Statutes. The act approved February 18,1867, entitled “ An act to provide for the payment of judgments against municipal corporations,” article YI, chapter 77, Compiled Statutes, entitled “Revenue,” is not repealed by the provisions of section 77 of the general revenue law.</p> <p>2. -: Construction. It is an established rule of construction that a subsequent statute treating of a subject in general terms and not expressly contradicting the provisions of a prior act, shall not be construed as intended to affect the more particular and positive provisions of a prior act, if any other reasonable construction can be adopted.</p> <p>3. -: Legislative Construction of a statutory or constitutional provision, although not conclusive upon the courts, when deliberately made, is entitled to great weight.</p> <p>4. Taxation: Levy. By provisions of section 77 of the general revenue law it is made the duty of the county board on the last day of the session of the board of equalization to levy taxes sufficient to provide the ordinary revenue of the county and to meet maturing obligations as bonds, coupons, outstanding warrants, etc., and probably judgments existing and unprovided for. In case judgments are subsequently rendered it is made the duty of the board by article YI, chapter 77, Compiled Statutes, to provide funds therefor by levying a special tax.</p>

<p>1. Statutes: Amendment: Assault. The first section of the act approved March 30,1889, entitled “An act to provide for the punishment of persons guilty of an assault upon another with intent to inflict great hodily injury, and for the punishment of persons guilty of an assault upon another with intent to kill the person so assaulted,” section 176, Criminal Code, does not conflict with section 11, article 3, of the Constitution.</p> <p>2. -: -: -. The crime of assault with intent to inflict great bodily injury upon the person assaulted, section 176 of the Criminal Code, is a new and substantive offense.</p> <p>3. -: -: -. The act defining said crime and providing a punishment therefor is not an amendment to the Criminal Code in the sense used in section 11, article 3, of the Constitution.</p>

<p>1. Habeas Corpus: One Who Has Given Bail Not Entitled To. A defendant in a criminal prosecution -who has given bail for his appearance at the next term of court, and is thereby entitled to his freedom, is not entitled to the writ of habeas corpus, since he is not in custody within the meaning of the statute.</p> <p>H, -: -, In such case, if the defendant is desirous of having the legality of the prosecution inquired into by means of the writ of habeas corpus, he should first surrender himself into the custody of the sheriff.</p>

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

Rehearing of ease reported 28 Neb., 310. A sufficient foundation was laid for the introduction of secondary evidence to prove the execution of the deed {Lee v. Bermingham, 30 Kan., 312; Johnson v. Mathews, 5 Id., 123, 124; Douglas v. Wolf, 6 Id., 92), and that the clerk of Pierce county was not within the jurisdiction of the court which tried this case.

<p>1. Review: Evidence examined, and held, to sustain the verdict for defendants in error.</p> <p>2. Conversion by Bailee: Variance. The cause of action set out in the petition is for the conversion of a quantity of broom corn. The evidence proves that the defendants received the corn in question to be sold on commission in Chicago, and that they held it there in anticipation of an advance in the price thereof until the freight and storage charges, together with the amount previously advanced, exceeded the amount realized therefor. Held,, That the variance between the petition and the proofs is material, and that plaintiff cannot recover.</p>

Tried below before Norval, J. If defendant in error was not the actual and bona fide owner she cannot recover (Baldwin v. Ins. Co., 15 N. W. Rep.' [Ia.], 300), and extrinsic evidence is admissible to show that she is not the owner or to show who the owner is. (Abbott’s Trial Ev., 487).

<p>Error to the district court for Polk county. Tried below before Smith, J.</p> <p>cited: Bonus v. Carter, 22 Neb., 495; Martin v. Hausman, 14 Fed. Rep. [Mo.], 166; Woonsocket Rubber Co. v. Falley, 30 Fed. Rep. [Ind.], 808; Housel v. Cremer, 13 Neb., 298; Lininger v. Raymond, 12 Id., 19; Grimes v. Farrington, 19 Id., 48; Nelson v. Garey, 15 Id., 531; Bierbower v. Polk, 17 Id., 268; Sloan v. Coburn', 26 Id,, 608; Aultman v. Aultman, 32 N. W. Rep. [Ia.], 240; Field v. Fisher, 82 N. W. Rep. [Mich.], 838; Gage v. Parry, 29 N. W. Rep. [Ia.], 822; Ingram v. Osborn, 35 N. W. Rep. [Wis.], 304; Davis v. Scott, 22 Neb., 154; Southern White Lead Co. v. Hass, 33 N. W. Rep. [Ia.], 657; Van Patten v. Thompson, 34 Id., 763; Tootle v. Coldwell, 1 Pac. Rep. [Kan.], 329; Dor emus v. O’Harra, 1 O. St., 45; Atkinson v. Tomlin-son, 1 Id., 237 ; Sloan v. Coburn, 26 Neb., 607 ; Keens v. Gaslin, 24 Id., 316; Berrer v. Moorhead, 22 Id., 688; McKeighan v. Hopkins, 19 Id., 33; Buck v. Reed, 27 Id., 70; Dorrington v. Minnick, 15 Id., 400; Waters v. Reuher, 16 Id., 101; PLbey v. Pierson, 30 N. W. Rep. [Wis.], 692; Gallagher’s App., 7 Atl. Rep. [Pa-], 237.</p>

<p>Res Adjudieata: Joint Tort Feasors: Satisfaction by One. In au action for the abuse of process of the court, whereby the plaintiff was wrongfully evicted, all parties charged with the wrong were joined as defendants. One of them demurred on the ground of misjoinder of causes of action, and the demurrer was sustained, and the action proceeded to judgment of $100 against him. He satisfied the judgment. Afterwards an action for the same wrong was brought against the other defendants charged. Held, The damages being unliquidated, that a satisfaction by one joint tort feasor was a bar to further recovery for the wrong.</p>

Tried below before Marshall, J. The rights of an infant are not saved unless the saving clause in the statute of limitations provides in terms for his precise case. (Tyler, Infancy & Covert, sec. 113.) Wherever several persons have a joint interest and one of them is barred by the statute of limitations, the rights of all are barred; and this, though the others are under disability within the saving clause of the statute.

<p>1. Grarnisliment: Exemptions. An action was brought by the K. Co. y. C. & C. to recover $3,820 and interest, and an attachment was duly issued and a garnishee served with notice, who appeared and answered, admitting an indebtedness. Afterwards judgment for the amount claimed was rendered and the garnishee ordered to pay the money into court to abide its further order. The money was thereupon paid into court, where the debtor claimed it as being exempt and the court awarded it to him. Held, Upon the evidence, to be erroneous.</p> <p>2. -: -: Affidavit. A debtor who swears that he has neither lands, town lots, nor houses subject to exemption must negative the possession of any of these, and if he fails to do so the affidavit will be insufficient.</p> <p>3. -: -: Subsequent Transfer. Where at the time an attachment is levied upon property it is not exempt, the debtor cannot by transferring his other property afterwards thereby render the property so levied upon exempt.</p>

Tried below before Cochran, J. Testimony as to the defective condition of the streets at other places beyond the defect which caused the injury was improper. (Dundas v. Lansing, 42 N. W. Rep. [Mich.], 1014; Tiee v. Bay City, 44 Id., 53.) As to contributory negligence: Lincoln v: Gillilan,18 Neb., 120; Plattsmouth v. Mitchell, 20 Id., 230; Omaha Horse By. Co. v. Doolittle, 7 Id., 481; P., Ft. W. & C. R. Co. v. Krickbaum’s Adm’rs, 24 O.St., 119.

<p>Error to the district court for Pawnee county. Tried below before Appel&et, J.</p> <p>cited: Carpenter v. Grisham, 59 Mo., 247; Highway Com’rs v. Hoblit, 19 111. App., 250; Smith v. People, 47 N. A., 330; Whitely v. Platte Co., 73 Mo., 30; Adams v. Clarksburg, 23 W. Va., 203; Port Huron & 8. W. R. Co. v. Voorhees, 50 Mich., 506; Koppikus v. State Cap. Com., 16 Cal., 248; Heyneman v. Blake, 19 Id., 579; Willyard v. Hamilton, 7 O., 449; Harper v. B. Co., 2 Dana [Ky.], 227; Cupp v. Com’rs Seneea Co., 19 O. St., 173; Davis v. Huston, 15 Neb., 28; Bryan v. Kennett, 113 U. S., 179; Kimball v. Alameda Co., 46 Cal., 24; Harper v. Richardson, 22 Id., 251-4; De Moss v. Newton, 31- Ind., 219.</p> <p>cited : Earl of Ailesbury v. Pattison, Doug. [Eng.], 30; Sedgwick, Stat. & Const. Law, 247; People v. Weston, 3 Neb., 324; White v. Blum, 4 Id., 561; Pearce’s Heirs v. Patten, 7 B. Mon. [Ky.], 162; Brown v. Otoe Co., 6 Neb., 117; Dixon County v. Barnes, 13 Id., 295; Cowls v. Cowls, 3 Gilm. [111.], 435; Grattan v. Grattan, 18 111., 167.</p>

Tried below before Hall, J. The assignment is not a process of law, but is merely the act of a private person, and the sheriff stands in the same relation to the property as the owner, with the duties of a trustee superadded. (Housel v. Cremer, 13 Neb., 300.) Every general assignment in' Nebraska must be a deed to be valid.

<p>1. Agency: Contract, set out in the opinion, held, to be one of agency and not conditional sale, and that it was unnecessary to file the same for record to protect the principal.</p> <p>2. -. That the agent bad no interest in the property subject to levy and sale under an execution or attachment against him.</p> <p>3. -. The proof fails to establish a different contract from that showing agency.</p>

Rehearing of case reported 33 Neb., 121. The court erred in overruling the motion to strike out all items to and including the year 1872. (Johnson v. Hahn, 4 Neb., 139; Peet v. O’Brien, 5 Id., 362; Pettit v. Black, 8 Id., 59; Lynam v. Anderson, 9 Id., 378.) The remedy by foreclosure can only be pursued under the restrictions of the statute, and is limited to cases involving at least $200.

<p>1. Criminal Law: Information: Changing Alleged Name of Accused. In a prosecution for felony, after the witness had been sworn, the prosecuting attorney asked and obtained leave to make a correction in the name of such witness, by changing the initials of the Christian name from C. A. to H. C. Held, That the prosecuting attorney should be required to show that he was not aware of the mistake until that time, and that if the accused should make it appear that he was misled, the court should continue the case to a later day in the term.</p> <p>2. -: Evidence. To authorize a jury to find averdictof guilty in a criminal case the evidence must point to the accused as the party who committed the offense, and mere conjecture or suspicion, however strong, will not warrant a verdict of guilty.</p>

Tried below before Gaskin, J. A substituted party comes into a suit subject to all the disabilities of him whose place he takes. (Hi & T. Cen. R. Co. v. Shirley, 111 U. S., 358 j Cable v. Ellis, 110 Id., 389; Pirie v. Toedt, 115 Id., 41; Sloane v. Anderson, 111 Id., 236; Young v. Parker, 132 Id., 267; L. & N. R. Co. v. Wangelin, 132 Id., 599; Ohlquist v. Harwell, 13 Fed. Rep. [Ia.], 305; Thouron v. R. Co., 38 Fed.

<p>1. Judgments: Injunction Against: Pleading. Where,in an action to enjoin a judgment which caused an apparent lien upon real estate, the defendant appeared specially and objected to the jurisdiction of the court, and his objections being overruled, he made no further appearance. Held, That all the facts well pleaded in the petition were for the purpose of the action admitted.</p> <p>2. -: -: Garnishment. In a petition to enjoin a judgment rendered in a proceeding in garnishment after judgment, it was alleged that no summons or notice had been served on the garnishee, and that no examination of such garnishee had been had, but that in fraud of his rights the justice found that there was due from him to one H., the debtor, the sum of $100, and rendered judgment accordingly, when, in fact, he was not indebted to H. Held, That the plaintiff was entitled to an injunction.</p> <p>’3. -: -: Effect. In such case the court will declare the judgment void, and not merely set aside the apparent lien of the judgment upon certain real estate.</p>

Heard below before Appelget, J. Where the dissolution is by the death of a partner, a continuance of the business by the survivor with the old assets cannot avail to postpone the old debts to the new ones.

<p>1. Review. Where the testimony is conflicting, and the judgment is not against the clear weight of evidence, it will not be set aside.</p> <p>2. Estoppel in Rais. Where one by his own words willfully causes another to believe in a certain state of facts, as by stating that he is not the owner of certain property, and thus induces him to act on such belief so as to alter his own previous position, as by purchasing the property, the former is concluded from afterwards averring against the latter a different state of things from what he then represented.</p>

<p>Appeal from the district court for Douglas county. Heard below before Wakeley, J.</p> <p>cited: Webster v. Wray, 17 Neb., 579; Lorton v. Russell, 27 Id., 372; Leoy v. Bank, Id., 557; Irish v. hmdin, 28 Id., 84; Millsap v. Ball, 30 Id., 728.</p> <p>cited: Nichols v. Williams, 22 N. J. Eq., 63; Riley v. Farnsworth, 116 Mass., 223; Schmeling v. Kriese, 45 Wis., 325; Stadleman v. Fitzgerald, 14 Neb., 290; Bissell v. Terry, 69 111., 190; Bosseau v, O’Brien, 4 Bis. [U. S.], 395.</p>

<p>Exemptions: Garnishment: Voluntary Payment. In an action to enjoin an execution upon the ground that the judgment debtor had been garnished in a proceeding after j udgment, and had paid the amount owing the judgment creditor into court in pursuance of its orders, the judgment creditor was the head of a family and insolvent, of which facts the .judgment debtor did not deny that he was aware, and that the j udgment in question was exempt property if so claimed, but the debtor in his answers in garnishment failed to state any of these facts, held, that he had not made a full disclosure — in effect, had not acted in good faith with the creditor, and on a claim by the latter that the judgment was exempt, the payment of the money into court is no protection.</p>

<p>Error to the district court for Nemaha county. Tried below before Appelg-et, J.</p> <p>cited: State Natl. Bank v. Haylen, 14 Neb., 480; Lowe v. Higgenbotham, 13 Pac. Rep. [Kan.], 790; Hawkins v. Wilson, 32 N. AY. Rep. [Ia.], 416; Harrison v. Baker, 15 Neb., 43; Simpson v. Armstrong, 20 Id., 512; Dunbier v. Day, 12 Id., 597; Juergens v. Thorn, 40 N. AY. Rep. [Minn.], 559; Erben v. Lorrillard, 19 N. Y., 302; Furst v. R. Co., 72 N. Y., 546; Miller v. Ottaway, 45 N. AY. Rep. [Mich.], 666; Davis v. MeOready, 72 Am. Dec. [N. Y.], 462; Koehler v. Dodge, 31 Neb., 328; Roberts v. Lane, 18 Am. Dec. [Me.], 242; Dobbins v. Oberman, 17 Neb., 166; Heard v. Bank, 8 Id., 15; Magee v. Badger, 34 N. Y., 247; Lake v. Reed, 4 Am. Rep. [Ia.], 210; Chapman v. Rose, 15 Am. Dec. [N. Y.], 401; Phelan v. Moss, 5 Am. Dec. [Pa.], 402; Miller v. Filley, 12 Am. Dec. [Mich.], 306; Helms v. Douglas, 45 N. W. Rep. [Mich.], 1009; N. Y. Iron Mines v. Bank, 6 Id., 823; Belmont Bank v. Hoge, 35 N. Y., 65; Murray v. Lardner, 2 AYall. [U. S.], 110; Merchants Bank v. McClelland, 13 Pac. Rep. [Colo.], 723; National Bank of Republic v. Young, 7 Atl. Rep. [N. J.], 488; Davis v. Seeley, 38 N. W. Rep. [Mich.], 901; Johnson v. Way, 27 O. St., 381; Smith v. Livingston, 111 Mass., 345.</p> <p>cited: Dobbins v. Oberman, 17 Neb., 163.</p>

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

<p>1. Depositions: Admissibility. Under section 372 of the Code, the deposition of a witness may be used only in the following; cases: “First — When the witness does not reside in the county where the action or proceeding is pending, or is sent for trial by change of venue, or is absent therefrom. Second — When, from age, infirmity, or imprisonment, the witness is unable to attend the court, or is dead. Third — When the testimony is required upon a motion, or in any other ease where the oral examination» of a witness is not required.”</p> <p>2. -: -. When a deposition is offered to be read in evidence, it must appear to the satisfaction of the court that for any cause specified in section 372 the attendance of the witness cannot be procured. If the witness is openly within the-county at the time of the trial and is not prevented by age, infirmity, or imprisonment from appearing in court, his deposition cannot be substituted for his personal presence to give testimony if the adverse party object to such deposition.</p> <p>3. Review: Questions Ignored in Motion for New Trial. Where no objection is made in the motion for a new trial that the verdict is excessive, the objection cannot be considered for the first time in the supreme court.</p> <p>4. Drafts: Blank Indorsement: Transfer. A draft payable to the order of the payee and indorsed in blank by him and delivered to a third party is thereafter like a negotiable instrument payable to bearer, and the title will pass by mere delivery.</p>

Tried below before Clarkson, J. cited, contending that the service was sufficient: C., B. A foreign corporation having no business in Nebraska cannot be sued in a Nebraska court by serving a summons on its vice president, who is simply passing through the state. (Fitzgerald v. Con. Co., 137 U. S., 98; G, B. & Q. R. Co. v. Manning, 23 Neb., 558; Porter v. R. Co., 1 Id., 15; St. Clair v. Cox, 106 U. S., 350; Clews v. Iron Co., 44 Fed.

<p>1. Special Damages. Held, That the claim for special damages was frivolous and failed to show a liability of the defendant.</p> <p>2. Measure of Damages: Breach of Contract of Sale. Where the articles contracted for may be purchased in open market the measure of damages on breach of an agreement is the market price on the day appointed for delivery less the contract price when the latter is not paid.</p>

<p>1. Married Women: Contracts. Where the contract of a married woman does not relate to her separate business or estate, she will not be liable as surety on a promissory note unless it appear that she thereby intended to bind her separate estate.</p> <p>Ü. Homestead: Abandonment. Two things must concur to show an abandonment of a homestead, viz., an intention to abandon, and actual abandonment.</p>

<p>Error to the district court for Nemaha county. Tried below before Broady, J.</p> <p>cited: Holland v. Griffith, 13 Neb., 472; Vidor Sewing Mach. Co. v. Day, Id., 408; Smith v. Evans, Id., 314; Sandwich Mfg. Co. v. Feary, 22 Id., 53; Fried v. Remington, 5 Id., 525.</p> <p>cited: Newman v. Mueller, 16 Neb., 523; Dunbar v. Briggs, 18 Id., 94; Cooper v. HaU, 22 Id., 168; Colion v. Shaffer, 23 Id., 724; Boohwalter v. Lansing, Id., 292.</p>

<p>1. Deeds: Undue Influence. In an action to set aside a deeá made by a father in his dotage to his youngest son, held,- that the testimony tended to show. undue influence on the part of the son, and that the father was not in a mental condition to-transact important business.</p> <p>2. Review. The judgment is supported by the weight of- evidence- and is affirmed.</p>

Tried below before Morris, J. The probate court'of the county in which the administrator was appointed has “exclusive original jurisdiction” (Seward v. Didie,r, 16 Neb., 58 ; Maxwell, PI. & Pr., 87; Seymour v. Ricketts, 21 Neb., 240), and the county court of Cass county, in which the lands were located, would have no jurisdiction at all, and any proceedings had before it for a sale of the land located in said county would be utterly void.

<p>1. Justice of the Peace: Summons: Time of Sebvioe. A summons issued by a justice’s court must be served at least three days before the time set for trial.</p> <p>2. Appearance: Motion to Set Aside Judgment Is. The filing of a motion by a defendant to set aside a judgment, under section 1001 of the Civil Code, is a general appearance, and waives all objection to j urisdiction over his person.</p> <p>3. Justice of the Peace: Setting Aside Judgment. • A justice of the peace has no authority to set aside a judgment under said section, where the defendant has neither paid the costs nor confessed judgment therefor.</p>

Tried below before Kinkaid, J. In this case it was necessary only for the plaintiffs to prove, first, that vendee Yates bought the goods in controversy ; second, that vendee practiced deceit and deceived vendors; third, that plaintiffs rescinded the contract. (Far-well v. Hanchett, 9 N. E. Rep. [111.], 58.) The amended petition was framed after the decision in case of Oswego Starch Co. v. Lendrum, 10 N. W. Rep. [Ia.], 900.

<p>1. Review: Preponderance op Evidence. Where, in an action tried to a jury, there is evidence to sustain the verdict, the supreme court will not set it aside and grant a new trial because the bare preponderance of the evidence seems to be against the verdict.</p> <p>2. -: Instructions. Held, That the instructions fairly submitted the issues to the j ury.</p> <p>3. -: When Documentary Evidence is excluded on the trial, the same must be incorporated in the bill of exceptions in order that this court may review the rulings of the trial court thereon.</p>

<p>1. Liquors: Sale: Regulation: Statutes. By section 2187„ Consolidated Statutes, the selling or giving away of intoxicating liquors on the day of a general or special election, or on-Sunday, is made a criminal offense, punishable by imprisonment. Subsequent to the adoption of said section, the legislature, in 1889, enacted section 2572 of Consolidated Statutes, which confers upon the excise board of a city of the first class having over 25,000 inhabitants, the exclusive control of the licensing and regulation of the sale of liquors in the limits of such city, subject to all the restrictions, regulations, forfeitures, and penalties provided by the general law of the state on the subject. Held, That the mere passing of the last section did not have the effect to suspend within the corporate limits of such-cities the piovisions of the first named section.</p> <p>2.--: -: Justice of the Peace: Jurisdiction. A justice of tbe peace has concurrent jurisdiction with the district court to enforce the provisions of said section 2187. A prosecution thereunder may he by indictment or information filed in the district court, or upon written complaint made to a justice of the peace of the county where the offense was committed,</p>