Volume 35 — Nebraska Reports

Tried below before Broady, J. Whether a rule or regulation of the school authorities is reasonable or valid is- a question of law for the court. (Fertich v. Michener, 111 Ind., 472; State v. Vanderbilt, 18 N. E. Rep. [Ind.], 366.) The rule in the case at bar is reasonable and proper. (King v. Sch. Board, 71 Mo., 629; Burdick v. Babcock, 31 la., 562; Abel v. Clark, 24 Pac. Rep. [Cal.], 383; Beskins v. Gore, 85 Mo., 485.

Tried below before Clarkson, J. Gadsden’s testimony is irrelevant, and hearsay or derivative. (Stevens, Dig. of E.v., art. 62.) To hold Gadsden’s testimony competent is contrary to public policy, for the following reasons: (a.) Since it was repetition of the language of another, that language might not have been correctly repeated, either through original misapprehension, subsequent failure of memory, or willful misrepresentation.

Original proceeding in nature of quo warranto. The executive may move without preferring charges, serving notice, or having a formal trial. (State v. MoGarry, 21 Wis., 496; Wilcox v. People, 90 111., 186; Eddoffv. Dist. of Col., 135 U. S., 240; Keenan v. Perry, 24 Tex., 253.) A constitutional question is clearly recognized, and where the question is addressed to the discretion of the department called upon to make the construction, the decision is final.

Tried below before Field, J. Liability of a city for the acts of its employes “is based upon the right which the employer has to select his servants, to discharge them if not competent, and to direct them while in his employ.” (Kelly v. New Yorh, 11 N. Y., 432.) It is the duty of a municipal corporation to beep its streets in a reasonably safe condition for public use (Lincoln v. Walker, 18 Neb., 251; Same v. Gillilan, Id., 119; Same v. Holmes, 20 Id., 39; Same v. Woodward,…

<p>1. Attachment: Order Discharging : Review. In reviewing an order of the district court or a judge thereof, discharging an attachment, the evidence being conflicting, the same presumption prevails in favor of the correctness of the ruling complained . of, as in cases of finding and judgment upon a formal trial.</p> <p>2. -: -: -. The order of a judge discharging an attachment in such case will not he disturbed by this court unless it is clearly against the weight of evidence.</p>

Tried below before Doan®, J. Plaintiff having by acquiescence permitted defendant to construct and operate its railroad over his land, trespass, ejectment, or injunction will not lie. (Right v. Beard, 13 East [Eng.], 210; Hamlin v. R. Co., 61 Wis., 515; M. & N. R. Co. v. Strange, 63 Wis., 178; Goodin v. Canal 'Co., 18 O. St., 169; St. Julien v. R. Co., 33 Am. & Eng. R. Cases [La.], 92; Pierce, Railroads, 169; L. N. A. & C. R. Co. v. Soltweddle, 36 Am. & Eng.

Tried below before Hopewell, J. cited, that the declarations of Duncan as to the ownership of the property should have been received: Dorsey v. Dorsey, 3 H. & J. [Md.], 506; Striclderv.

<p>Error to the district court for Douglas county. Tried below before Doane, J.</p> <p>cited: Engster v. State, 11 Neb., 542; Holmes v. Bailey, 16 Id., 305; Ahlman v. Meyer, 19 Id., 68; Holmes v. Bell, 3 Cush. [Mass.], 322; N. E. Mtg. Sec. Co. v. Aughe, 12 Neb., 506; Perkins v. Conant, 29 111., 184.</p> <p>cited: Charter v. Stevens, 3 Denio [N. Y.], 33.</p>

Tried below before Doane, J. The court erred in refusing the instruction asked. (Dillon, Munic. Corp., sec. 1015; Craig v. Sedalia, 63 Mo., 417; Brotan v. Glasgow, 57 Id., 157; Cooley, Torts, 745 and cases cited.) The court erred in admitting the testimony of Neis Christensen. (Spielman v. Flynn, 19 Neb., 346.) The city is not relieved of its liability by virtue of its contract with Thompson, the contractor.

<p>1. Assault: Words of Provocation alone will not justify an assault, although they may constitute a ground of mitigation of damages.</p> <p>2. -: Street Railways: In Ejecting a Passenger from the street car the conductor can use no more force than is necessary for that purpose, and if he do so the company will be liable.</p> <p>3. -: MEASURE OF Damages. The rule as to the measure of damages as stated in the tenth paragraph of the instructions in McClure v. Shelton, 29 Neb., 374, 375, approved.</p>

<p>1. Keview: Objections Not Raised Below. "Where the clerk of the court and deputy sheriff were interested in the result of the action, and hence in drawing the jury and talesmen, but no objection was made until after the trial, held, that the objections should have been presented to the trial court before the trial, otherwise they cannot be considered by the supreme court.</p> <p>2. A finding of fact set out in the opinion held contrary to the weight of evidence.</p> <p>3. Instructions copied in the opinion held to be erroneous.</p>

Tried below before Field, J. ■The reply should have been stricken from the files. (O’Leary v. Ishey, 12 Neb., 136; Courtnay v. Price, Id., 189; Dillon v. Russell,■ 5 Id., 488; Williams v. Evans, f> Id., 218; Maxwell, PI. & Pr., 108; Durbin v. Fisk, 16 O. St., 534.) As to other points: Savage v. Aiken, 21 Neb., 610; Moore v. Besse, 30 Cal., 570; Smith v. Weage, 21 Wis., 442'; Harris v. Harris, 10 Id., 468; Vaughn v. R. Co., 9 Am. & Eng.

<p>Attachment: Replevin. On the 27th of January, 1890, one T. executed a chattel mortgage to M. upon his stock of “ dry goods, notions,” etc., and the book accounts, to secure the payment ol' the sum of. §1,453.47. On the 30th of the same month M. executed a mortgage' to the S. Co. upon his stock of flour, etc.,- to secure the sum of §85.75. On the next day two suits of attachment were brought against T., which were levied upon a part of the goods mortgaged, whereupon the mortgagees brought replevin against the sheriff and reclaimed the goods. On the trial of the cause the jury returned a verdict in favor of the sheriff for $405.47, and found the value of the goods in possession of the mortgagees to be $1,700, and of the book accounts $489. It appeared also that the mortgagees were in possession, selling the goods at private sale. Held, That if it was conceded that the mortgagees’ lien was superior to that of the attaching creditors, which we do not decide, still, there is sufficient to pay all the liens, and without a showing of prejudice to the mortgagees the judgment would not be reversed.</p>

Tried below before Morris, J. The court erred in giving the first instruction (Lincoln v. Walker, 18 Neb., 244; Hough v. R. Co., 100 U. S., 213), and in giving the third instruction. As to the fourth instruction: Johnson v. R. Co., 18 Neb., 699; 3 Sutherland, Damages, 182; Chicago v. Scholten, 75 111., 468; McIntyre v. R. Co., 37 N. Y., 287 ; R. Co. v. Kirk, 90 Pa. St., 15; R. Co. v. Barron, 5 Wall. [U. S.], 90; Grotenkemper v. Harris, 25 O. St., 510; Penn.

<p>Error to the district court for Douglas county. Tried below before Doane, J.</p> <p>cited: Huling v. B. Co., 9 Sup. Ct. Rep. [Kan.], 604 j Lewis, Em. Domain, see. 414.</p>

<p>Original application for mandamus.</p> <p>cited: Angelí & Ames, Corp., 239, 679; People v. Com’rs, 4 Neb., 157; Bouton v. Supervisors, 84 111., 384; State v. McMillan, § Jones [N. Car.], 174; Com’rs v. Batty, 10 Neb., 176.</p> <p>cited, contending that mandamus would not lie: Howland v. Eldredge, 43 N. Y., 457; People v. Brennan, 39 Barb. [N. Y.], 651; Seymour v. Ely, 37 Conn., 103; State v. Nemaha Co., 10 Neb., 33; State v. Nelson, 21 Id., 572; Dixon v. Judge, 4 Mo., 286; Dane v, Derby, 89 Am. Dec. [Me.], 729, and note; State v. McCrillus, 4 Kan., 214; State v. Supervisors, 29 Wis., 79; Dosier v. Howe, 28 Kan., 353; Gushing v. Stoughton, 60 Mass., 389; Nelson v. Milford, 7 Pick. [Mass.], 18; Simmons v. Hanover, 23 Id., 188; Bancroft v. Linfield, 18 Id., 556; Boone Go. v. Armstrong, 23 Neb., 766; State v. Glarey, 25 Id., 403.</p> <p>cited, contending that the county was liable for costs: Tatloeh v. Louisa Co., 46 la., 138; Jordan v. Osceola Co., 59 Id., 388; Bouton v. Supervisors, 84 111., 384 Cushing v. Stoughton, 60 Mass., 389; Dosier v. Howe, 28 Kan., 355; Thomas v. Wilton,. 40 O. St., 516; Windbum v. Litchfield, 22 Conn., 226; People v. Stocking, 50 Barb. [N. Y.], 573; Stanton Co. v. Madison Co., 10 Neb., 308.</p>

<p>1. Mechanics’ Liens: How Secured. Under the mechanic’s lien law of this state the person who furnishes any material for the construction of a building by virtue of a contract, express or implied, with the owner thereof, is entitled to a lien thereon for the amount due for the same, upon filing a sworn statement of his account with the register of deeds of the proper county within four months of the time of furnishing such material.</p> <p>2. Deeds: Paeol Contract to Keconvey: Constructive Notice. Where an absolute deed, properly executed and acknowledged, is given and intended only as a mortgage, and the contract to reconvey rests in parol, the proper recording of the instrument is constructive notice of the interest of the grantee in the property therein described.</p> <p>3. -: -: Mechanics’ Liens: Priority. Such lien is superior to a mechanic’s lien for materials lurnished under a contract entered into with the grantor after the recording of such deed.</p> <p>4. Pleading. Every material averment in a petition, not denied by the answer, for the purposes of the action will be taken as true.</p>

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

<p>1. Tax Liens: Foreclosure by County. Under the statutes in force since February 15,1877, a county treasurer is not compelled, to seize and sell personal property of the taxpayer for real estate taxes before offering the realty.</p> <p>2. -: -. The proviso clause of section 1, article IV, chapter 77, Compiled Statutes, restricting the foreclosure of tax liens by counties to cases where the amount due on the tax certificate exceeds the sum of $200, is inimical to the provisions of,' section 4, article IX, of'the constitution, and is void.</p> <p>3. -: -. Power is conferred upon counties to foreclose-tax liens by sections 1 and 2, article V, chapter 77, Compilech Statutes.</p> <p>4. Demurrer: A Misjoinder of parties plaintiff is not a cause-for demurrer.</p> <p>5. Tax Liens: Foreclosure: Irregular Assessment. In 186 ft-the town of L. was incorporated, and there was included in its. boundaries certain agricultural lands not platted. Subsequently it was incorporated as a city of the first class, including the-same unplatted lauds, and the proper city authorities assessed the lands in question and levied taxes thereon for municipal purposes. The lands were subsequently sold for taxes, and a. tax certificate was issued to the purchaser. In an action to foreclose the tax lien it was held, that the action of the county commissioners incorporating the town was not void, though the unplatted lands were included, and that the taxes in question were-valid.</p>

Heard below before Wakeley, J. The mode of levying the tax (according to benefits) is the measure of the power, and if levied in any other mode it is unauthorized and void. (Zottman’s Case, 20 Cal., 102; Paving Co. v. Painter, 35 Id., 699; Murphy v. Louisville, 9 Bush' [Ky.], 189.) This assessment is void, because based on the cost of the work, and not on special henefits assessed and apportioned.

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

<p>1. Appeal: Identity oe Issues. Where a cause has been appealed to the district court and an amended petition filed which contains the same cause of action set forth in the court below, but the facts are set out more in detail, a motion to strike the new matter from the petition held to be properly overruled.</p> <p>2. Lease: Contract by Lessee to Pay Taxes Does Not Include Special Assessments. While in a general sense the word “taxes” includes special assessments, and special assessments are made under the taxing power, yet there is a clear distinction between the two; special assessments are a peculiar class of taxes which are laid upon property benefited according to some equitable rule, while taxes, as generally understood, mean the burdens imposed by the government for state, county, city, township or school district purposes; in other words, the money necessary to defray the expenses of government. A promise by a lessee of real estate to pay all taxes upon the property does not apply to special assessments for the construction of a sewer.</p>

<p>1. Jurors: Motion to Quash Panel: Verification. A motion to quash the panel of jurors, because not drawn in proportion to the number of electors of the several precincts of a county, was verified by the attorney upon mere belief. Held, Not sufficient to justify the court in quashing the panel.</p> <p>2. -: -: Waiver. After the jury was called into the box the attorney who had filed objections to the panel waived all objections to the jury, and also his peremptory challenges. Held, A waiver of objections that the jury was not properly drawn.</p> <p>3. Review. The verdict and judgment conformed to the proof, and are affirmed.</p>

Heard below before Chapman, J. cited; Deerfield v. Conn. Riv. R. Co., .144 Mass., 338; Mueller-v. Fruen, 36 Minn., 274; Gould, Waters, sec. 329; Angelí, Watercourses, sec. 203 et seq.; Washburn,. Held: 47 Wis., 340; 0. & Ind. R. Co. v. Zinn, 18 O. St., 417; Barker v. Salmon, 2 Met. [Mass.], 32; Brown v. King, 5 Id., 173; Ashley v. Ashley, 4 Gray [Mass.], 197; James v. R. Co., 91 111., 554; Schallv. R. Co., 35 Pa.

<p>1. Negligence: Damages Fbom Construction oe Seweb: Review. In an action against a contractor for the construction of a sewer for damages to a brick building from settling, caused by the negligence of the contractor in the excavation for the sewer, held, that, in view of the sharp conflict in the evidence, the judgment of the court below would he affirmed.</p> <p>2. -: -. The contractor was justified, as shown by the evidence, in not prosecuting the work at night or on Sundays.</p>

<p>^Review. Where the testimony is conflicting and does not preponderate in favor of either party to such an extent as to show that it is clearly wrong, the judgment will not he set aside.</p>

Tried below before Wakeley, J. Evidence of fraud or undue influence cannot be given under the general issue in ejectment. (A. & N. R. Co. v. Washburn, 5 Neb., 122; B. & M. R. Co. v. Lancaster Co., 7 Id., 37; Feet v. O’Brien, 5 Id., 360; Jones v. Seward Co., 10 Id., 161; Ins.

<p>Appeal to the district court for Phelps county. Heard below before Gaslin, J.</p> <p>cited: Oliver v. Hawley, 5 Neb., 444; Vogle v. Ripper, 34 111., 100; Oroswellv. Labree, 81 Me., 44; Wilson v. Hayes, 12 Am. St. Rep. [Minn.], 758; Shephard v. Whetstone, 1 N. W. Rep. [Ia.], 753; Rowley v. Jewett, 6 Id., 354; First Natl. Bank v. Oarson, 27 N. W. R,ep. [Mich.], 589; Weaver v. Bromley, 31 Id., 839; Greenleaf, Ev., sec. 655; Robinson v. Ins. Co., 25 la., 430; Bank v. Shaffer, 9 Neb., 1; Gillette v. Smith, 18 Hun [N. Y.], 10; Smith v. Smith, 13 Am. St. Rep. [S. Car.], 633. „</p> <p>cited: Wilcox v. Saunders, 4 Neb., 572; Union Natl. Bank v. Roberts, 45 Wis., 373; Croswell v. Labree, 81 Me., 44; McCauley v. Gordon, 64 Ga., 221; Morehead v. Bank, 5 W. Ya., 74; Needles v. Shaffer, 60 la., 65; 2 Dan., Neg. Inst., secs. 1410, 1412; Savings Bank v. Shaffer, 9 Neb., 1; Booth v. Powers, 56 N. Y., 22; Vogle v. Ripper, 34 111., 100; Smith v. Smith, 13 Am. St.'Rep. [S. Car.], 633.</p>

<p>Banks: Checks: Dishonor: Diligence. On Friday, November 16,1888, the firm of L. & S., of V., Nebraska, drew a check on the State Bank of Y., in which they had funds, in favor of M. B. & Co., of 0.,in this state, and transmitted the same by mail to M. B. & Co. at O. In the letter which contained the check were the words in redink: “Rush this check through.” The cheek was received by M. B. & Co. on Saturday after its date and by them indorsed and delivered to the Nebraska National Bank for its face value, and without notice to rush the check. The bank at O. had previously had dealings with the State Bank at Y. and had found it more prompt in remitting collections than the other banks at that place, and it at once sent the check to the bank on which it was drawn for payment. It ' was received on Monday morning alter its date and on the next day the State Bank transmitted to the Nebraska National a draft on a bank in L., where it had no funds, which check was refused, of which the drawers were duly notified. On Tuesday night after the date of the check the bank at Y. stopped payment, and the ofScers absconded, leaving no money or property of the bank. Held, That the Nebraska National Bank had shown reasonable diligence and had acted in good faith and that L. & S. were liable as drawers of the check.</p>

Heard below before Marshall, J. The compromise and entry of satisfaction was meritorious and should be sustained. (Boyce v. Berger, 11 Neb., 401; Treitschke v. Grain Co., 10 Id., 361; Paine v. Wilcox, 16 Wis., 230-1.) A notice that a motion had been filed to. set aside the entry of satisfaction, falls far short of giving the court jurisdiction to make a decree, setting aside the entry.

Tried below before Field, J. Unauthorized appearance by attorneys confers no jurist diction, and judgment entered in such a case is a nullity, (Price v. Ward, 1 Dutch. [25 N. J. L.], 225; Osborn v,_ Bank, 9 Wheat. [U. S.], 829; Shelton v. Tiffin, 6 How. [U„ Sj, 186; Sherrard v. Nevius, 2 Carter [Ind.], 241; Hess v. Cole, 3 Zab. [23 N. J. L.], 116; Anderson v. Hawhe, 115. 111., 33; Parker v. Spencer, 61 Tex., 155; Oritchfield -v. Porter, 3 O., 521; Frye v. Calhoun County, 14…

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

<p>1. Insanity: Validity of Contract Between Father and Son. One F. W., father of E. F. W., assisted in paying and securing certain debts of his son, and received a bill of sale from the son of certain personal property which he took possession of. The proof clearly established the fact that the son, a year or' more before the execution of the bill of sale, had been injured and his mind affected so as to incapacitate him to transact business, and that his father had knowledge of these facts. In an action of replevin by the son to recover the property, the contract, not being for necessaries, was held void.</p> <p>2. Subrogation. It is probable that in a proper proceeding the father may be subrogated to the rights of creditors of his son, whose debts he apparently in good faith paid, or secured, in whole or in part.</p>

Heard below before Wake ley, J. Refusal of insurance companies to pay, and their denial of liability on the policies, estop them from claiming benefit of provision in policy allowing sixty days for payment of loss. (Allegre v. Md. Ins. Co., 6 H. & J. [Md.], -337; Hoffeeker Bros. v. Ins. Co., 5 Houst. [Del.], 101; Williamsburg Ins. Co. v. Cary, 83 111., 453j State Ins.

<p>X. Ejectment: Contract to Reconvey. In January, 1884, one E. D. M. leased eighty aeres of school land from the state and in February of the same year entered into a contract with one C. P. to surrender his lease to him, and he, C. P., was to advance the first payment and purchase the land from the state, taking the contract in his own name, and E. D. M., upon the repayment of the money advanced and interest thereon, was to receive •an assignment of the contract. In July, 1885, E. D. M. died intestate and without issue. C. P. filed his claim against the ■estate ior the money loaned, interest, and taxes paid and after-wards withdrew the same and assigned the contract to the plaintiff, the father of E. D. M. Neither E. D. M. nor his wife, the defendant, had paid any part of the money loaned and paid out by C. P. Held, That, stripped of all questions of descent which do not control, the plaintiff stands in the shoes of C. P. and the defendant must perform the contract of E. D. M., and the plaintiff is entitled to a decree of foreclosure and sale for the amount due.</p> <p>H. -. A mortgagee cannot maintain ejectment to recover possession of real estate.</p> <p>3. -. The plaintiff must possess a legal estate to maintain ejectment.</p>

<p>1. Breach, of Contract: Damages: Pleading. Damages which necessarily result from the injury complained of may be re's covered without any special statement of the same, and a motion to make the petition more “definite and certain,” by stating in what manner the plaintiff has been damaged by the matters complained of, and the nature and character of such damages, was properly overruled.</p> <p>2. Contract: Failure to Perform. No exceptions were taken to the instructions nor any ruling of the court on the trial, and it being admitted that the defendants below had failed to comply with their contract to.lay out and open a public road, the building of a railway on the proposed route will not relieve them from the payment of damages for the failure to perform.</p>

<p>County Boundaries. The boundaries of an organized county cannot be lawfully changed, so as to add to such county adjoining unorganized territory, unless a majority of the inhabitants of such territory so petition the county board of the county to which it is proposed to be added, nor unless the proposition has received the sanction of a majority of the voters of such county at an election duly called and held therein for that purpose.</p>

<p>ZReview: Practice: A Motion for a New Trial is necessary to obtain a review by petition in error of the rulings of the trial court on the admission or exclusion of testimony, or to secure a review of the evidence for the purpose of determining whether it is sufficient to sustain the finding and judgment.</p>

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

Tried below before Doane, J. Surety may stand on terms of his contract, and if material variation be made therein, without his consent, he will be discharged.

<p>1. Proceeding in Error: Joint Judgment: Defect of Parties: Waiver. While all the parties to a joint judgment that is sought to be reviewed by this court by a petition in error should be made parties herein, yet, where the cause is submitted to this court on its merits, and no objection is interposed, that there is a defect of parties until after such submission, it will be taken to constitute a waiver of the absence of proper parties.</p> <p>2. Pleadings: Allegations Taken as True Unless Denied. Every material allegation ot new matter in a pleading not denied by the answer or reply, for the purposes of the action is to he taken as true.</p> <p>3. Proof of Admitted Pacts: Harmless Error. The admission of testimony to prove a fact admitted by the pleadings is error without prejudice, for which a judgment will not he reversed.</p> <p>4. Introduction of Evidence: Order Discretionary. The order in which a party shall introduce his testimony rests in the discretion of the presiding judge.</p> <p>•§. Building Contract: Measure of Damages for Breach. Where a building is not erected within the time limited by the building contract through the default or uegleet of the contractor, the owner is entitled to recover his damages thereby sustained. In such ease it is not error for the owner to prove that the building had been leased for a stipulated sum and that the tenant was to take possession as soon as the work was completed, when it is shown that the reasonable rental value exceeded the amount of rent reserved by the lease.</p> <p>ij. Credibility of Witness: How Tested. It is competent to show on cross-examination of a witness that he is hostile or unfriendly towards one of the. parties, and if he deny such fact, it is proper to contradict him by proving his declarations or-statements made out of court. Such evidence, to be admissible, must tend to sbow that the witness entertains such hostility at. the time of the trial.</p> <p>7. -: -: Discretion on-Trial Court. '-The extent to. which a witness may he cross-examined for the purpose of showing his bias is within the discretion of the trial court, and unless there has heen an abuse of.discretion the judgment will not be-reversed.</p> <p>8. Excluded Testimony: Admitting Cures Error.- Where offered testimony is excluded, the error, if any, is cured by the. subsequent admission of the same evidence.</p> <p>. 9. Building Contract: Sureties on Bond. A building contract contained a provision to the effect that the owner, during the progress of the work, might make changes or alterations in the-plans of the building, and that the making thereof should not avoid the contract. In an action upon the contractor’s bond it was held that the making of reasonable changes, which did not. materially increase the costs of the building beyond the contract price, will not release the sureties.</p> <p>10. -: -. A surety cannot urge the default of his principal as a ground for discharge from his, obligation.</p> <p>11. -: Change in Plans. When the plans and specifications for a building are changed after the contract is signed, without the knowledge or consent of either of the parties, the same will not vitiate the contract.</p> <p>12. Instructions. JSeld, That there is no reversible error in the. charge of the court, and that the instructions requested, which-were not given, were properly refused.</p>

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

Tried below before Chapman, J. Where several carriers unite to complete a line of transportation and receive goods for freight and give a through bill of lading, each carrier is the agent of all the others to accomplish the carriage and delivery of the goods, and is liable for any damage to them, on whatever part of the line the damage is received. (Texas & P. P. Co. v. Fort, 9 Am. & Eng.

<p>1. Continuance: Absent Witness: Affidavit. In an action upon a policy of insurance it appeared that the loss occurred December 24, 1889; that suit was begun May 9, 1890, and the issues made up June 30, 1890; that at the September term of the district court the case was passed till November 24th, when the trial was set for the 28th, on the morning of which day the defendants’ attorneys filed certain affidavits, in which they stated, in substance, that the state agent was absent; that they did not know of his whereabouts; that he possessed important papers and that they could not safely proceed to trial without him, but failed to state what papers he possessed, or what they expected to prove by him, or any reason for the failure to take his deposition. Held, That the court did not err in overruling the motion for a continuance.</p> <p>2. Fire Insurance: Building in Course of Erection: Loss Before Occupancy. Where the testimony showed that the agent had power to and did issue the policy; that he filled out an application for insurance upon a building in process of construction, to be signed by the owner, and stated in the application that the building was being erected, although it was intended for the use of tenants and was stated in the policy to be so occupied, held, that, construing the several provisions of the application together, it did appear that the building was in course of construction, and being burned before it was completed, the fact that the building was vacant was no defense.</p> <p>3. -: Agent’s Authority. As the agent had power to issue the policy, he had authority also to make any changes as to the person entitled to the benefit thereof which did not increase the risk; therefore, where the policy was for $1,000 and a mortgage named in the application for $700 was executed by the insured, an assignment of so much of the policy as would cover the mortgage was authorized by the agent. Held, Within his powers.</p> <p>4. Evidence held to sustain the verdict, and there is no material error in the instructions.</p> <p>•6. Valued Policy Act. No particular objection has been pointed out in the statute of 1889, and it is sustained.</p>

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

Tried below before Eield, J. It was error for the court to instruct the jury that the possession by an accused person of property proved to have been recently stolen is sufficient to fasteu the guilt of its larceny upon the accused prima facie, and calls upon him to prove the innocence of his possession. (People v. Ah Ki, 20 Cal., 178; Thompson v. People, 4 Neb., 529 ; Peoplev.

<p>1. Liquors: Dealer’s Bond: Sureties. Where a liquor dealer’s bond contains no provision for the payment of all damages which may be adjudged against him under the license law, no action can be maintained against the sureties thereon for damages resulting from the sale of intoxicating liquors by the principal in the bond.</p> <p>2. --: -: Action by Married Woman: Instructions: Measure op Damages. In an action for damages by a married woman against a saloon-keeper for loss of means of support resulting from the sale of liquors to her husband, it is error to instruct the jury that habits of the husband prior to the acts complained of are immaterial. Although the fact that he drank to excess will not defeat a recovery, yet such fact may properly be considered by the jury as affecting the measure of damages.</p> <p>3. Defendants' instructions, as modified by the court, were properly given.</p>

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

Heard below before Wakeley, J. In a proceeding in equity to enforce a tax lien the court will look to the statute and not to the assessment as the foundation of such lien, and will regard the amount of taxes against the property, as borne upon the books of the county, as unalterably established.

Tried below before Appelget, J. The order appointing a receiver was void; and money collected thereunder may be recovered by the party entitled to receive it, in an action for money had and received. (Johnson v. Powers, 21 Neb., 292.) The prevailing rule is that the process, regular on its face, is sufficient to protect the officer against personal responsibility in serving it; but when he claims property under it, he must show a valid judgment.

<p>Error to the district court for Box Butte county. Tried below before Kinkaid, J.</p>

<p>■Appeal from the district court for Saunders county. Heard below before Marshall, J.</p>

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

Tried below before Tibbets, J. The plaintiff in error appeared as defendant in justice’s court and was entitled to appeal. The issues can be made up in the appellate court, and the trial court erred in sustaining the motion of plaintiff below to strike out that portion of the amended answer setting up a counter-claim. (Smith v. Borden, 22 Neb., 488; Andrews v. Mullin, 14 Id., 248; Sanchez v. Candelaria, 23 Pac.

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

Original application for mandamus. An executive officer may be required to perform ministerial or executive duty, though party interested may have a remedy at law against him for failure to do so.

Tried below before Hopewell, J. The adjudication on merits of defense that premises were leased for unlawful purposes, had in the former action on the same lease, is a bar to maintenance of that defense in this case. (Danziger v. Williams, 91 Pa.

<p>1. Mortgages: Principal and Agent. A person who received an application through an agent for a loan upon real estate sent a draft for the amount of the loan, payable to the mortgagor, to his agent, one C. at S., and instructed him to have certain liens on the property satisfied. The agent procured the indorsement of the mortgagor on the draft and retained the same on the pretense of satisfying the liens, but instead of doing so absconded with the money without paying the claims. Meld, That the proof failed to show a delivery of the draft to the mortgagor, and did show that C. was intrusted with the same as agent of the lender.</p> <p>•2. -: Failure of Consideration: Cancellation. The loan having failed, a mortgage for the commission in procuring the same was properly canceled.</p> <p>•3. -: -: Bona Fide Purchaser: Judgment Against Assignor. The note and mortgage being void and having been transferred to a Iona fide purchaser, judgment was properly rendered against the party making the assignment.</p>

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

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

<p>Error to the district court for Lancaster county. Tried below before Field, J.</p> <p>Six separate actions were commenced by Solomon Gotthelf against The St. Paul Fire & Marine Insurance Company, The Hamburg-Bremen Fire Insurance Company, The Anglo-Nevada Assurance Corporation, The North British & Mercantile Insurance Company, The Oakland Home Insurance Company, and The United States Fire Insurance Company. By agreement of the parties the actions'were consolidated and tried together. Judgment was rendered for plaintiff below, to reverse which each defendant prosecuted proceedings in error.</p> <p>The facts as pleaded did not constitute a waiver of prooí of’ loss. (Blossom v. Lycoming Ins. Co., 64 N. Y., 162; Brink v. Hanover Ins. Co., 70 N. Y., 593; Von Genechtin v. Citizens Ins.. Co., 39 N. W. Rep. [Ia], 881; Briggs v. Fireman’s Fund Ins. Co., 31 N. W. Rep. [Mich.], 616; Beatty v. Lycoming County Mutual Ins. Co., 66 Pa. St., 9.) The award was final as between the parties. (Goodridge v. Dustin, 5 Met. [Mass.], 363; Wheeler v. Watertown Ins. Co., 131 Mass., 1; Koon ,v. Hollingsworth, 97 111., 54; Kim-ball v. Walker, 30 Id., 482; Burchell v. Marsh, 17 How.. [U. S.], 344; Hadaioay v. Kelly, 78 111., 286; Tynan v. Tate, 3 Neb., 390; Holmes v. Aery, 12 Mass., 134.</p> <p>The facts alleged in the petitions and proved on the trial show complete waiver of proof of loss. (Franklin Ins. Co. v. TJpdegraff, 43 Pa. St., 359; Blake v. Ins. Co., 12 Gray ![Mass.], 265; Susquehanna Ins. Co. v.Staats, 102 Pa. St., 529; Graves v. Washington Ins. Co., 12 Allen [Mass.], 391; Phoenix Ins. Co. v. Barnd, 16 Neb., 89; Carroll v. Girard Ins. Co., 72 Cal., 297; Bammessel v. Brewers Ins. Co., 43 Wia., 463.)</p>

<p>1. Deed: Presumption of Delivery and Acceptance. When a deed, which is beneficial in its character to the grantee named therein, is properly acknowledged and recorded, the presumption of law is that it was delivered by the grantor and accepted by the grantee.</p> <p>2. -: Record: Recitals. Where a deed, beneficial to the grantee, recites that it is executed for the purpose of correcting an error in a prior deed between the same parties, the record thereof is evidence of the facts therein recited.</p> <p>3. Bona Fide Purchaser of Real Estate. Where a claim to real estate can be sustained only upon the ground that the person asserting it is a subsequent purchaser in good faith, such person is required to show affirmatively that he purchased without notice of the equities of another, and relying upon the apparent ownership of his grantor.</p> <p>4. On the evidence in the record, held, that the defendant is not an innocent purchaser for value.</p> <p>5. Statements of Agent: Estoppel. Statements of an agent with authority to collect rents and care for the property of his principal will not be received in disparagement of the title of the latter so as to work an estoppel in favor of one who purchased from a stranger claiming adversely to such principal.</p> <p>6. Quitclaim Deed: Acceptance by Grantee. One who accepts a quitclaim deed from his grantor is bound, at his peril, to ascertain what equities, if any, exist against his title.</p>

Tried below before Gaslin, J. Unless authorized by statute, terms of court cannot be held in different counties at the same time in any district having but one judge.

<p>1. Trial: Opening and Closing. When, in an action on a note on the issue made by the pleadings, the plaintiff would be required to prove any fact to entitle him to recover, he has the right to open and close. If, however, the defendant in his answer admits the plaintiff’s cause of action, but sets up new matter, such as usury for a defense, so that the defense would fail without proof of such new matter, the defendant is entitled to open and close.</p> <p>2. Directing Verdict. Where, from the testimony before the jury, different minds might draw different conclusions, it is error to direct a verdict.</p> <p>3. Usury: Promissory Note: Bona Fide Holder: Onus ProBANDI. When usury is clearly established in the transaction, the burden of proof is on the person holding the instrument to show that he is a bona fide holder for value before maturity.</p>

<p>1. Marriage: Solemnized by Unauthorized Person: Validity. Where a marriage is solemnized before any person professing to be a justice of the peace, minister of the gospel, or other person authorized by law to solemnize marriages, and it is consummated with the full belief, on the part of the persons so married, or either of them, that they have been lawfully joined in wedlock, the marriage will be valid, although the person before whom it was solemnized had no authority.</p> <p>2. -: License Not Essential to Validity. A license to marry is bub a preliminary step in the proceedings. It takes, the place of proclamation of the bans in a church as practiced, under the British ecclesiastical law, and, while the solemniza* tion of a marriage without a license would render the party performing the ceremony liable, it will not affect the validity of the marriage, if otherwise legal.</p> <p>3. —:-: Foreign Laws: Failure to Plead. In the absence of pleading and proof to the contrary, the laws of another state will be presumed to be like our own.</p> <p>4. Action by Wife Against Husband. On the facts set forth in the petition, held, that the wife could not recover from her-husband upon the cause of action therein stated, but that she was entitled to have satisfaction of a former judgment for alimony set aside and the judgment reinstated. Leave given to. remit $1,375 from judgment.</p>

<p>1. County Treasurer: Fees: Counties Under Township Organization. Sec. 20, ch. 28, Comp. Stats., allows the county-treasurer certain fees “on all moneys collected hy him,” etc Sec. 87, ch. 77, provides that “The county treasurers shall be ex-officio county collectors of taxes within and for their respective counties, and in -counties under township organization, town treasurers shall be the collectors of taxes in their respective townships, ” and sections 89 and 90 provide the manner in which taxes are to be collected. Held, That the words “on all moneys collected by him” (the county treasurer) refer solely to such taxes as he has collected from the taxpayers, and that he is not entitled to fees on moneys paid to him by township treasurers.</p> <p>2. The finding and judgment upon other matters submitted are right and need not be reviewed at length.</p>

Tried below before Gaslin, J. The trial court was without authority to change the decree at a subsequent term by petition filed after stay of execution had been entered. (Miller v. Hyers, 11 Neb., 474; Sullivan v. Clark, 12 Id., 578; Banks v. Hitchcock, 20 Id., 315.)

<p>■Appeal from the district court for Burt county. Heard below before Clarkson, J.</p>

Tried below before Morris, J. cited, as to right of assignee to sue on contract of guaranty in his own name: Craig v. Parkis, 40 N. Y., 181; Stillman v. Nortlvrup, 17 N. E. Rep. [N. Y.], 379; Waldron v. Marring, 28 Mich., 493; Bank v. Carpenter, 41 la., 518. cited: Brandt, Suretyship, secs. 35,36, 97; 3 Kent, Comm., 183; 2 Parsons, Contracts, 3; 9 Am. & Eng. Enc. Law, 76; 1 Bouv., Law Die., 645; 4Lawson, Rights, Remedies, & Pr., 2737; 2 Daniels, Neg.

<p>1. Special Tribunal: Jurisdiction Exclusive. Where a statute upon a particular subject has provided a special tribunal for the determination of questions pertaining to such subject, the jurisdiction of such tribunal is exclusive, unless otherwise expressed or clearly implied from the act.</p> <p>2. County Superintendent: Jurisdiction: School Districts. The county superintendent in this state has exclusive original jurisdiction in all matters pertaining to the division of counties into school districts.</p>

<p>1. Constitution: Laws : Title or Act. The provision of section 11, articles, of the constitution, that “No bill shall contain .more than one subject, and the same shall be clearly expressed in its title,” has no application to laws in force at the time of the adoption thereof.</p> <p>2. -: Special Legislation: Agricultural Societies. Tb© provision of section 12, chapter 2, Compiled Statutes, entitled “Agriculture,” for the payment to agricultural societies complying with the provisions thereof, of a sum equal to three cents for each inhabitant from the county general fund of the several counties, does not conflict with the provisions of section 15t article 3, of the constitution.</p> <p>3. -: Legislative Power. The legislature has authority under-the consiitution to determine what purposes are matters of public concern, so as to render taxation therefor admissible.</p> <p>4. Agricultural Societies: Defined. Agricultural societies are not corporations within the ordinary meaning of the term, but rather agencies adopted by the state for the purpose of promoting the interests of agriculture and manufacturing.</p> <p>5. -: Aid by Taxation: Mandamus to County Board. In a mandamus proceeding to compel the board of supervisors to include in the estimate of expenses for the current year the amount payable to an agricultural society by provision of statule, the fact that another society in the same county has complied with the conditions necessary to entitle it to demand payment from, the county is no defense where it does not appear that such society is making any. claim upon the county for funds under the-provisions bf the statute.</p>

<p>1. Cumbering Record: Costs. Where unnecessary papers are included in the transcript, as the original petition where there is an amended one, the summons and return to the same, together with motions and demurrers to the petition where no point is made upon such pleadings or papers, the costs of the same will' be taxed to the party at fault.</p> <p>2. Trusts: Rights of Trustee. The members of an association joined together and purchased a tract of land near 0., the title being taken in the name of a trustee. The laud was platted into eighty-four lots, seven acres being reserved for the trustee. One lot was given to J. B. for services, and the other lots were conveyed to the several shareholders, who each received his deed in full satisfaction of the trust. Held, That a grantee from a shareholder could not open up the trust and require the trustee to account and convey to him land not included in his purchase, and that there was no equity in his petition.</p> <p>3. -: Laches: Enforcement of Stale Claims. It is not the policy of the law to enforce stale claims which are asserted after the witnesses are dispersed or dead.</p> <p>4. Statute of Limitations. The action is barred by the statute of limitations.</p>

<p>1. Mortgage: Promissory Note: Forged Signature: Weight of Evidence. In an action to foreclose a mortgage upon real estate, the jury found that the purported maker did not sign either the note or mortgage, and the verdict being set aside, substantially the same findings were made by the trial court. A number of genuine signatures of the defendant were submitted to the jury and court for a comparison of handwriting, and such signatures are preserved in the record; but”the proof fails,to reach that degree of certainty to show that the judgment of the court below is clearly wrong.</p> <p>2. -: Forgery: Cancellation of Lien. Held, That the evidence tended to establish the fact that the mortgage was a forgery, and that a j udgment canceling the apparent lien caused by such mortgage on the real estate was right.</p>

Tried below before Hopewell, J. Where decree has once been entered, no supplemental order can be made without notice, and the findings in the original decree are conclusive upon the parties thereto. (Mulvey v. Carpenter, 78 111., 586;’ Blalce v. McMurtry, 25 Neb., 291; Symns v. Noxon, 29 Id., 404.) The amendment of the petition did not change the object of the action, which was the enforcement of plaintiffs’ right to the land.

<p>Allowance by County Judge of Claim Against Estate of Decedent: Collateral Attack. An order of a county-judge, duly made without fraud' or collusion, allowing a claim against the estate of a deceased person is a final order, and unless appealed from will be conclusive and have the effect of a judgment and not be open to collateral attack.</p>

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

<p>1. Beal Estate: Breach of Contract to Convey: Petition. Held, That the cause of action set forth in the petition relates solely to the breach of contract of the defendant to convey the real estate described in the petition.</p> <p>2. -: -: Measure of Damages. In case of the breach of an executory contract to convey real estate where the vendor having title refuses or puts it beyond his power to convey, and no part of the consideration has been paid, the measure of damages which the vendee is entitled to recover is the value of the land at the time the contract should have been performed less the contract price.</p> <p>6. -: -: -: Nominal Damages. Where the land is of less value than the contract price, the vendee is entitled to recover nominal damages for the breach of contract.</p>

Tried below before Harrison, J. An action arising upon an attachment bond is an action on a contract. (Raymond v. Oreen, 12 Neb., 218.) Attachment will not lie for unliquidated damages resulting from the breach of contract, unless there is something in the contract itself which affords a rule by which they may be estimated.

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

<p>1. Pleading: Sufficiency of Petition When Attacked After Judgment. Petition and exhibit set out in opinion held sufficient after judgment to Sustain it, as the defendant who could avail himself of the defense does not object.</p> <p>2, Jurisdiction: Summons: Defendants Residing in Different Counties. Where there is no charge of collusion or fraud between the indorser and holder of a promissory note as to the liability of such indorser, and an action is brought against him in the county where he resides within the state, and service had on him there, a summons may be issued and served on the makers in other counties of the state.</p>

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

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

<p>1. Pleadings: Amended Supersede Original. Defendant having filed an answer to the petition, and plaintiff thereupon filing, an amended petition, to which defendant answers without making the original answer part of the second answer, the case stands for trial on the amended pleadings, and the original pleadings are disregarded.</p> <p>2. Action for'Money Had and Received: Defense Under Contract Must be Pleaded. Where the defendant claims money as due him under a contract with the plaintiff, he must plead the facts showing his right to retain the same.</p> <p>3. -: Pleadings: General Denial: Facts in Issue. In an action in substance for money had and received, a general denial only puts in issue the receipt of the money.</p>

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

Tried below before Post, J. contending that the bidder at foreclosure sale, having acted under mistake, and on misrepresentation of the sheriff as to title, should be relieved from the performance of his bid, cited: Paulett v. Peabody, 3 Neb., 196; Brasher v. Ingham, 4 Id., 531; Laight v. Pell, 1 Edw. Ch. [N. Y.], 577; Yates v. Little, 6 McLean [U. S. C. C.], 511. Court of equity will not interfere where party seeking relief is guilty of negligence. (2 Pomeroy, Eq.

<p>1. Conveyance of Homestead: Acknowledgments: Certificate of Notary: Impeachment. A certificate of acknowledgment of a deed or mortgage, in proper form, can be impeached only by clear, convincing, and satisfactory proof that the certificate is false and fraudulent.</p> <p>8. Evidence in this case considered, and held insufficient to overcome the officer’s certificate and the evidence in favor of the execution and acknowledgment of the instrument.</p>

<p>1. Conversion: Defenses: Mitigation of Damages. When goods have been converted, and the owner afterwards receives the whole or a portion thereof back, or the proceeds arising from their sale, he does not thereby bar his right of action for the original wrongful taking, but such fact may be shown in mitigation of damages.</p> <p>2. -: -: -. In an action for conversion it is no defense to show that the property has been taken from the wrongdoer by a third party, by legal process or otherwise, unless the original owner has received it, or had the benefit of the proceeds thereof, where the same has been sold.</p> <p>3. -: Measure of Damages. In an action by a mortgagee for conversion against a sheriff who has levied on the property at the suit of a creditor of the mortgagor, the plaintiff is entitled to receive as damages the actual market value of the property at the time of the conversion, with interest from that date, less the market value of that portion of the property subsequently recovered or the proceeds of which plaintiff has had the benefit, and not exceeding the amount remaining unpaid on the mort-¡' gage.</p> <p>4. Weight of Evidence. Held, That the verdict is against the-evidence.</p>

■ Original application for writ of habeas corpus, A sentence takes-effect from the day it is pronounced [In re Fuller, 34 Neb., 581), and a subsequent sentence fixing a different term is a nullity. [People v. Messer rey, 76 Mich., 223; People r. Kelley, 44 N. W. Rep. [Mich.], 615; Ex parte Lange, 18 Wall. [U. S.],.163; Brown v. Bice, 57 Me., 55; In re Mason, 8 Mich., 70; Sennott v. Swan, 16 N. E. Rep. [Mass.], 451; People v, Liscomb, 60 N. Y., 559; People v. Jacobs, 66 N.…

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

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

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

<p>1. Pleading: Answer Denying Material Allegations Sufficient When Assailed for the First Time by Motion for New Trial. A denial in an answer of all material allegations in the petition, although faulty, will be held sufficient when assailed for the first time by motion for a new trial, par- - ticularly where it is treated at the trial as putting in issue the allegations of the petition.</p> <p>2. Review: Harmless Error. A judgment will not be reversed on account of errors which could not have prejudiced the party complaining.</p> <p>3. Evidence examined and held to sustain the judgment complained of.</p>

<p>Review: Findings or Trial Court. In this court the presumption is in favor of the correctness of the finding of fact by the trial court, and such finding will not be reversed unless clearly wrong. ( . ,</p>

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

<p>1. Covenant of Warranty: Action for Damages for Breach: Attachment. The action of covenant was in form and substance ex contractu, and an action und.er the code by a covenantee for damage on account of the breach of a covenant of warranty, after eviction under a paramount title, is for a debt arising under-a contract, which may be recovered by attachmént.</p> <p>2. -: -: Petition: Failure to Attach Written Instrument. An objection to a petition on the ground that an instrument on which the action is based, or a copy thereof, is. not attached, should be made by motion before answer.</p> <p>3. ———: -: -. In an action for the breach of a covenant of warranty by the covenantee after eviction under a paramount, title, it is not necessary to set out the facte attending the eviction or particularly describe the adverse title. It is sufficient to allege in general terms an eviction under a title paramount to that of the covenantor.</p> <p>4. -: -•: When Action Accrues. A cause of action on-a covenant of warranty, or for a quiet enjoyment, does not accrue in favor of the covenantee until eviction or surrender by reason of a paramount title.</p> <p>6. --: -: -. A cause of action accrues to a covenantee on his covenant of warranty, or for quiet enjoyment, upon eviction by the purchaser under a prior mortgage.</p> <p>6. -: -: Proof of Paramount Title. One who voluntarily surrenders to a third party asserting an adverse title, must, in an action against his covenantor for a breach of warranty, establish the validity of the title he has recognized.</p> <p>7. -: Breach: Measure of Damages. The measure of damages for the breach of a covenant of warranty, or for quiet enjoyment, is the consideration paid for the land, with interest, and the costs and expenses incurred in the suit by which the covenantee is evicted; and if the latter is obliged to purchase an outstanding title in order to protect his own, he may recover the amount paid for such paramount title, not exceeding the consideration paid by him.</p>

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

Tried below before Wakeley, J. . On the facts stated in the petition plaintiff had a right to rescind the contract and reclaim the deposit as between himself and the bank. Where there is fraud, title to the deposit does not pass to the bank. (Knowles v. Lord, 4 Whart. [Pa.], 500; King v. Fitch, 1 Keys’[N. Y.], 444; Niohols v. Michael, 23 N. Y., 264.) Assignee is not a bona fide purchaser.

Tried below before Morris, J. contending that the contract was a sale and not a bailment of chattels, cited : Mallory v. Willis, 4 N. Y., 85; Foster v. Pettibone, 7 Id., 435; Chase v. Wash-burn, 1 O. St., 244; Lonerganv. Stewart, 55 111., 44; Richardson v. Olmstead, 74 Id., 213; Bailey v. Bensley, 87 Id., 556; Grier v. Stout, 2 111.

Tried below before Marshall, J. Where authority is conferred by an express agreement the. extent thereof must be ascertained from the agreement or instrument itself, and cannot be enlarged, modified, or controlled by evidence of implied authority at variance with that which was given expressly.

<p>1. Contest of Election: Evidence: Preservation op Bal-' lots. In a contest of election the ballots cast at the election constitute the primary evidence to determine the rights of the respective parties. It must appear, however, that they have been preserved substantially in the manner and by the officers prescribed by the statute. If they have been placed in a position to be tampered with by interested parties, the burden of proof is on the party offering them in evidence to show that they are in the same condition as when sealed up by the several election boards.</p> <p>2. -: Jurisdiction op District Court. The district court has jurisdiction in case of contested election in relation to township organization.</p> <p>3. Statutes: Validity: Repeal by Implication. Repeal by implication is not favored, and a statute will not be declared so repealed unless the repugnancy between the new statute and the old one is plain p,nd unavoidable.</p> <p>4. --: -: Township Organization. Held, That the several statutes in relation to township organization to which objections are made are valid and are to be construed together; that section 7 of the act of 1891 in reference to elections, was designed to apply to future elections and does not affect art. 4, sec. 4, chap. 18, Comp. Stats., which provides for .temporary organization.</p>

<p>1. Mutual Fire Insurance: Premium: Notes: Assessments: Judgment: Executions. Where premium notes have been given to a mutual insurance company, assessments to be made thereon from time to time as losses occur, in case an assessment ■ is not paid in thirty days after personal demand therefor or by letter, the company may recover for the whole amount of the deposit note with costs, and executions will thereafter be issued on such j udgment as assessments for losses may require.</p> <p>2. -: Assessments: Default in Payment: Forfeiture: Waiver. Where there is a default in paying assessments and the company does not declare the policy forfeited, but continues to make further assessments as losses occur, it will be a waiver of the cause of forfeiture.</p>

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

<p>Replevin: The Evidence in this case examined and considered, and held insufficient to support the verdict of the jury.</p>

<p>1. Ejectment: Admission of Evidence : Discretion of Trial Court. Permitting the introduction in evidence of records of deeds duly recorded, for the purpose of proving title to real estate in an action in ejectment, instead of requiring the production of the original deeds, rests largely in the discretion of the trial court, and its ruling thereon will be regarded as conclusive unless there has been an abuse of discretion.</p> <p>2. -: -: Sufficiency of Objection. The admission of a deed in evidence was objected to at the time by the adverse party as incompetent, immaterial, and irrelevant. Held, That the objection was not specific enough to reach defects in the execution of the instrument, as that it was not witnessed.</p> <p>3. Evidence: Objections: Waiver. Ordinarily objections to the admission of testimony not made when offered are waived and cannot be urged for the first time on appeal to this court.</p> <p>4. Deed: Description of Real Estate. Real estate is sufficiently described in a conveyance when the' deed refers for identification to another deed specifically mentioned therein, which contains an accurate description of the property sold. .</p> <p>5. -: Identity of Grantor. In the body of a deed and in the certificate of acknowledgment the grantor was correctly described as Archibald T. Finn. The deed was signed as Arch. T. Finn. The certificate of acknowledgment identified the party mentioned as grantor as known to the officer to be the person whose name is affixed to the instrument and who executed the same. Held, That it sufficiently appeared that “Archibald T.” and “Arch. T. ” were one and the same person.</p> <p>6. -: Identity of the Name of a grantor or grantee is prima facie evidence of identity of the person.</p> <p>7. Conveyance of Real Estate: Construction of Instrument. Under the provisions of section 53, chapter 73, Compiled Statutes, in construing an instrument conveying real estate, when by any reasonable interpretation the granting clause and the habendum can be reconciled, effect must be given both.</p> <p>8. -: -. The premises of a deed were, “do hereby grant, sell and convey unto J. P. C.” The habendum clause was “ to have and to hold said premises with the appurtenances unto the said J. P. C. for and during the term of his natural life, and at his decease the same shall descend in equal shares to his children,” naming them. Held, That the deed conveyed á life estate to J.P. C. with remainder to his children therein mentioned.</p>

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

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

Exceptions to the decision of the district court for Lancaster county, Hall, J., presiding. Filed under the provisions of section 515 of the Criminal Code. The defendants were arrested on a complaint charging them with violating section 241 of the Criminal Code, by playing base-ball on Sunday, as an exhibition at which ah admission fee was charged. The case was' tried on a stipulation of facts before the county judge.

<p>Action on Jiotes Given for Harvesting Machine: Guaranty: Weight of Evidence. Held, That the testimony failed to show a substantial compliance on the part of the defendant with the terms of the guaranty proved, and that the verdict was against the clear weight of evidence.</p>

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

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

Tried below before Babcock, J. It is lawful for a person to bill any dog found running at large, on whose neck there is no collar, and no action can be maintained for such killing.

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

<p>1. Review: Failure to File Briefs: Submission of Cause Without Argument. Where a cause brought to this court upon appeal or petition in error is submitted upon the record and bill of exceptions 'without either a brief or oral argument, the judgment, ordinarily, will be affirmed without an investigation of the questions presented.</p> <p>2. Conditional Order for Payment of Money: Action Against Acceptor: Pleading. In an action by a payee against the acceptor of a conditional order for the payment of money, the plaintiff must aver and prove that the conditions stipulated in the order have been fulfilled in order to entitle him to recover.</p> <p>3. Trial to Court: Harmless Error: The Admission of Illegal Evidence in a cause tried to a court without a jury is not sufficient ground for the reversal of the judgment.</p>

<p>1. Promissory Note: Fraud in Procuring Signature: Bona Fide Purchasers. When the signature of an illiterate person is obtained to a promissory note by the payee fraudulently inducing him to believe that he is signing an instrument of an entirely different character, without any fault or negligence of the maker, the note cannot be enforced even in the hands of a bona fide holder.</p> <p>2. Sufficiency of Evidence. Held, That the instructions fairly presented the case to the jury, and that the verdict is not contrary to the evidence.</p>

<p>1. Mandamus: Moderator of School District: Refusal to Countersign Orders. It is the duty of the moderator of a school district to countersign all proper orders drawn by the director on the district treasurer, and if he refuses to countersign • such an order, issued in full compliance with the provisions of law, mandamus will lie to compel the performance of such'duty.</p> <p>.2. -: -: Right of County Superintendent to Apply for “Writ. A moderator refused to countersign an order properly drawn upon the treasurer and the matter was submitted for adjudication to the county superintendent, who, after investigation, found that the officer refused to sign the order for insufficient reasons. Held, That under the statute the county superintendent had the right, on behalf of the district, to apply to the proper court for a writ of mandamus to compel the officer to perform his .duty.</p> <p>3. Employment of Teacher: Validity of Contract. A contract of employment of a teacher entered into on behalf of the district by the director and treasurer will bind the district, although the moderator was not consulted concerning the employment. ■> .</p>

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

<p>1. Ejectment: Rights of Occupying Claimant: Improvement and TAXES. To entitle the defendant in ejectment on eviction at the suit of the owner of real estate to recover under-the provisions of the occupying claimants act for improvements and taxes paid while in possession, it must appear that such improvements were mide or such money paid while he was in good faith claiming title, legal or equitable, to the premises derived from some public office or from the United States or the state of Nebraska.</p> <p>2. -: -: -. L., whose only title to real estate was derived from certain tax deeds conceded to be void, executed in favor of C. a title bond conditioned that he would convey said property on payment of the consideration, at the expiration of five years. Subsequently B., the owner, recovered judgment for possession thereof in an action of ejectment against C., in which the latter sought to recover under the occupying claimants act for improvements and taxes paid by him. Held, in the absence of evidence that C. ’s possession, actual or constructive, was by virtue of said bond, or that such money was expended for taxes and improvements, while in good faith relying upon' a title acquired thereby, that a judgment for the plaintiff should not be disturbed.</p>

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

<p>1. Bill of Exceptions: Service on One op Appellees. Where there are two or more principal defendants against whom the plaintiff is seeking to enforce' a claim, there being no particular controversy between them, service of the bill of exceptions upon one of such defendants or his attorney within the time fixed by statute will be sufficient.</p> <p>2. -: Motion to Quash: Time op Filing: Waiver. Where a defendant fails to file a motion to quash until after briefs upon the merits have been made and served the court will consider the objection waived.</p> <p>3. Application of Payments: Rights op Third Parties: While as between the debtor owing several debts and his creditor where the former, at the time of payment of a sum of money, fails to designate the debt on which it is to be applied, the latter may do so, yet there is an exception to this rule, as, where the money was received by the debtor from a third party whose property would be liable for the debt in case the money was not applied upon the third party’s liability.</p> <p>4. Construction of Instruments: Order. The instrument set out in the opinion is an order which, as the drawee refused to accept the same, the plaintiff was not bound to furnish the material mentioned therein.</p>

<p>Appeal from Justice’s Court: Issues in Appellate Court. A cause appealed from a justice of the peace to the district court must he tried upon substantially the same issues in the appellate court as were presented to the justice of the peace, unless some matter such as payment, release, etc., has arisen since the former trial.</p>

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

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

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

<p>1. Review on Error: Motion for'New Trial: Objections to Instructions to the jury must he made in the motion for a new trial, in order to have them reviewed by the supreme court.</p> <p>2. Evidence: Objections to the Rejection of certain testimony considered and overruled.</p> <p>3. The evidence in the case examined and considered, and held, that the damages assessed by the jury are not excessive.</p> <p>4. Sufficiency of Petition. Held, That the petition states a cause of action.</p>

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

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

<p>1. Process: Irregularity of Service: Waiver of Defect. Where there is actual personal service of process upon a defendant, as by reading the summons to him in place of serving a copy of the same, and the delendant does not appear and object on that ground, and judgment is rendered against him, it is not open to collateral attack, as the judgment is not void but voidable.</p> <p>3. -: --: -. If there is any irregularity in the manner of service on the defendant of valid process, he must take-advantage of such irregularity by motion or other proceeding in the court where the action is pending.</p> <p>3. -: Service in Another County. Where an action is instituted by attachment against an absconding debtor in the-county from which he absconded, process may be served upon him in any other county of the state, and a judgment rendered on such service will be valid unless he appears and contests the right to maintain the action there.</p>

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

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

Tried below before Appelget, J. A mortgage of personal property by one partner in his individual name passes no title. (Parsons, Partnership, sec. '95; Clark v. Houghton, 12 Gray [Mass.], 38; Butterfield v. Hemsely, Id., 226; Cummings v. Parish, 39 Miss., 412; Lockwood v. Beckwith, 6 Mich., 168; Chapman v. Devereux, ■32 Yt., 616; Gates v. Watson, 54 Mo , 585.) The mortgage was given to secure a partnership debt, and is valid, though executed by one partner only.

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

<p>1. Replevin: Judgment: Alternative Form. In an action of replevin, where the property has been delivered to the plaintiff, in case a verdict is returned in favor of the defendant, the judgment must'be in the alternative for a return of the property, or the value thereof, in case a return cannot be had, or the value of the possession of the same, and for damages for the unlawful detention. The statute requiring the judgment to be in the alternative form is imperative.</p> <p>2. Instructions: Sufficiency op Evidence. Held, That the cause was submitted to the jury under proper instructions; that the instruction as requested by plaintiff was not applicable to the case, and that the evidence sustains the verdict.</p> <p>3. Direction for Alternative Judgment. The judgment not being in the alternative form, the cause is remanded to the court below to render the proper j udgment upon the verdict returned by the jury. .</p>

Tried •below before Gaslin, J. Local agent is without authority to waive conditions of insurance policy after issue, when he is simply empowered to fix rates, countersign and deliver policies, and collect premiums. (Bowlin v. Hekla Fire Ins. Co., 31 N. W. Rep. [Minn.], 859; Kyte v. Commercial Union Assurance ■Co., 10 N. E. Rep. [Mass.], 518; Hankins v. Rockford Ins. Co., 35 N. W. Rep. [111.], 34; Strickland v. Council Bluffs Ins.

Motion by appellants to require appellees to supply certain exhibits used in the court below, which were not made a part of the bill of exceptions, and motion by appellees to dismiss appeal from the decree of the district court for Douglas county.

Tried below before Harrison, J. Demand for performance must be made before a forfeiture can be adjudged. (Merrifield v. Cobleigh, 4 Cush. [Mass.], 182; Bowman v. Foote, 1 Am. Law Reg., n. s. [Conn.], 360; McQuesten v. Morgan, 34 N. H., 400.) Payment of furniture, fixtures, and pictures by the landlord is, by terms of the lease, a condition precedent to recovery of possession of the premises.

<p>Sales: Obtaining Credit by Misstatement of Financial Condition: Fraud: Rescission. Where an insolvent purchaser of goods makes representations as to his financial condition which he knows do not represent the true condition of his affairs, by reason of which a seller is induced to part with his goods on credit on the faith of such statements, the transaction is fraudulent and the seller may, upon discovering the fraud, rescind the sale and reclaim the goods.</p>

<p>Mortgage Foreclosures: Purchase Money: Mortgage Executed by One oe Three Purchasers: Deficiency Judgment. Three persons jointly purchased three lots in an addition to the city of Lincoln for $3,000, one-fourth cash in hand and the balance on credit. By agreement the title was taken in the name of W., one of the purchasers, and he was to give his note secured by mortgage on the lots for the unpaid purchase money, and these were accepted by the vendor. Held, There being no trust relations involved, and neither fraud, accident, or mistake that the vendor was restricted to the security thus taken and could not recover a deficiency judgment against the purchasers who did not sign the note.</p>

<p>Replevin: Evidence. Upon the conceded facts and the evidence the judgment is right and is affirmed.</p>

<p>Trusts: Sufficiency of Evidence to Establish. ' Evidence held to be insufficient to establish a trust in favor of the plaintiff in the property in controversy.</p>

<p>1. Bill of Exceptions: Affidavits used at the hearing of a motion in the district court, to be available in thi3 court, must be brought into the record by a bill of exceptions.</p> <p>2. Trial: Admission of Incompetent Evidence: Objections: Review. When incompetent or illegal testimony is admitted upon a trial without objection, error cannot be predicated in a reviewing court upon the admission of such testimony.</p> <p>3. Review: Newly Discovered Evidence as Ground for New Trial: Bill of Exceptions. A party is not entitled to review, on appeal or error; the decision of a trial court in denying a new trial upon the ground of newly discovered evidence, unless all the testimony given on the hearing of the motion is set out in a bill of exceptions.</p> <p>4. Sufficiency of Evidence: Damages. Held, That the evidence in the case is sufficient to sustain the verdict, and that the damages assessed by the jury are not excessive.</p>

<p>1. Attachment on Claim Mot Due: Jurisdiction of County Judge : Order Granting. A county judge has jurisdiction, under section 238 of the Code of Civil Procedure, to grant an attachment on a claim not due, upon the proper affidavit being made and filed, showing the existence of at least one of the statutory grounds or causes for issuing an attachment on a debt before due.</p> <p>2. -: Practice: Order Granting, Issued on Affidavit for Attachment. No written application for an order allowing an attachment, other than the filing of the proper affidavit, is necessary.</p> <p>3. -:-: Action Commenced Before County Judge : Issuance of Writ Sufficient. 'When the county judge issues a writ of attachment in a case commenced before him, it is not necessary to the validity of the writ that he should spread upon his docket a formal order allowing the attachment. In such case the issuing of the writ is, in itself, the granting of the order.</p> <p>4. -■: Irregularities: Omission of Seal of County Court? Collateral Attack. The county judge of P. county made an order granting an attachment in an action to be brought in, the district court of the county, and signed the same officially, but he failed to attach thereto the seal of the county court, which order was filed with the clerk of the district court, who. issued a writ of attachment thereon. Held, That the omission of the seal of the county court did not make the order absolutely ' void, but an irregularity which could be taken advantage of only by the defendant in attachment, in the proper mode. The question cannot be raised by third parties in a collateral proceeding.</p> <p>5. Replevin of Goods Taken by Sheriff Under Attachment: Defense : Justification: Burden of Proof. When a sheriff, .under and by virtue of a writ of attachment, levies upon property found in possession of a stranger to the suit, in an action of replevin therefor by such stranger, the officer, to justify the taking, is required to show that the attachment writ was regularly issued; that is, that the writ is regular on its face, and was issued upon a sufficient affidavit by a court having jurisdiction of the parties and the subject-matter of the action..</p> <p>6. -: Irregularities in Attachment Proceedings: Collateral Attack. Where proceedings in attachment are irregular and erroneous, but not void, such errors and irregularities cannot be taken advantage of by third parties in a collateral proceeding. ,</p>

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

<p>Motion to dismiss appeal from a judgment rendered by the district court for Douglas county.</p>

Heard below before Powers, J. Mortgages or conveyances of the homestead without the signature and acknowledgment of both husband and wife are void. {Swift v. Dewey, 20 Neb., 107; Larson v. Butts, 22 Id., 370; Betts v. Sims, 25 Id., 166; Aultman v. Jenkins, 19 Id., 209; MaCreery v.Schaffer, 26 Id., 173; Stinson v. Richardson, 44 la., 375; Howell v. M’ Crie, 14 Pac.

<p>1. Bona Fide Purchaser of Beal Estate: Notice: Pleading. A defendant who claims protection as a bona-fide purchaser of real estate without notice of the plaintiff’s equities is required to deny such notice, although not alleged in the petition.”</p> <p>2. Beal Estate: Parol Trusts : Statute of Frauds: Pleading. Where, in an action to set aside certain conveyances through which the de.'endant claims title to lands, a court of equity has entered final decree in accordance with the prayer of the petition and quieting the title, of the plaintiff, the latter may plead the statute of frauds-in a subsequent action-by the grantor of the defendant to establish a parol trust claimed to have been created in his favor at the time of the conveyance by him to the defendant.</p> <p>3. -: -: -: -: Case Stated. In an action by D. against F., the holder of the legal title to the land in dispute, to set aside certain conveyances through which the latter claimed title, a final decree was entered for the plaintiff in accordance with the prayer of his petition, which decree still remains in force. Subsequently K., F.’s grantor, intervened and filed an answer in which it was alleged that the deed to F. was without consideration, and executed and delivered in accordance with a contemporaneous verbal agreement by which F. was to reconvey to K. on demand of the latter. Held, That D. may plead the statute of frauds as a defense against K., although F. may be willing to recognize the trust.</p> <p>4. Evidence examined, and held, not to establish a trust in parol.</p>

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

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

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

<p>1. Railroad Companies: Negligence: Needlessly Allowing Steam: to Escape: Pleading. In an action against a railway company for negligently, wrongfully, and unlawfully blowing off steam from its engine whereby the plaintiff’s horses were frightened and ran away, breaking his leg, etc., held, that the words employed implied that steam was blown off needlessly and unnecessarily, and as no objection had been made to the petition by demurrer, it was sufficient after verdict.</p> <p>2. -:-:-■: Injuries from Frightening or Horses. A railway company in the legitimate transaction of its business has the right to use steam and is not liable for the proper and necessary use of the same, even if it result in injury to others as by frightening horses and causing them to run away. If, however, an engineer within a city, where teams are constantly passing, needlessly and unnecessarily opens the valves of his engi e and frightens such horses and causes them to run away and commit injury, the company will be liable, provided the plaintiff is free from contributory negligence.</p> <p>3. Evidence: Question for Jury. There being testimony which would warrant the jury in finding a verdict against the defendant, it was properly submitted to them, and the court did not err in refusing to direct a verdict for the defendant.</p>

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

<p>Municipal Corporations: Establishment op Grade: Negligence: Action por Damages por Flooding Cellar: Instructions. Under section 31 of chapter 9, General Statutes of 1873, a city of the second class was authorized to establish the grade of its streets by ordinance. In an action for damages for flooding the plaintiff’s cellar in which his goods were stored, caused by filling up the street adjacent to the lot without the grade being established, held, that an instruction which in effect told the jury that the grade might be established otherwise than by ordinance was erroneous.</p>

<p>Action on Domestic Judgment. In this state an action can be maintained on a domestic judgment.</p>

<p>1. Judicial Sales: Inadequacy of Price: Confirmation. Evidence examined, and held, that the value of property sold by virtue of a decree of foreclosure is not so greatly in excess of the value found by the appraisers as to call for the setting aside of the sale.</p> <p>2. -: --: --: Harmless Error. A sale will not be set aside for irregularities or errors not prejudicial to the party complaining.</p> <p>3.--: -: -: Failure of Purchaser to Pay Off Prior Liens. A sale will not be set aside on the motion of a mortgagor on the ground that the purchaser has not paid off claims adjudged to be prior liens upon the property sold.</p> <p>4. -: Notice: Description of Property. A notice of sale under a mortgage or decree will generally be held sufficient if the property be described as in the mortgage or decree.</p>

Tried below before Hopewell, J. Whenever a broker.or real estate agent seeks to recover his commission he must establish that he has procured a purchaser who is ready and willing and has the financial ability to complete the purchase. ( Vinton v. Baldwin, 88 Ind.,. 104; Lane v. Albright, 49 Id., 275; Reyman v. Mosher, 71 Id., 596; Moses v. Bierling, 31 N. Y., 462; Mooney v. Elder, 56 Id., 238; Hart v. Hoffman, 44 How.

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

<p>Error to the district court for Scott’s Bluff county. Tried below before Church, J.</p>