Volume 38 — Nebraska Reports

<p>Appeal from the district court of Sherman county. Heard below before Hamer, J.</p>

<p>Judgment Based on Conflicting Evidence: Review. As the appeals by both parties present only questions of fact, as to each of which there was evidence sufficient to sustain the findings of the district court, its judgment is affirmed.</p>

<p>1. Pleading: Correction of Name of Party: Discretion of Trial Court. It is within the discretion of the trial court, in furtherance of justice, upon such terms as shall be proper, to allow the amendment of any pleading and process by correcting the name of a party thereto.</p> <p>2. -: -: Prejudice. Where an amendment has been permitted by which the given name of the plaintiff is changed, no prejudice will be presumed from the mere fact of the change. Resulting prejudice, if any there was,must be made affirmatively to appear.</p>

<p>1. Trial Upon Pleadings. Where a case is submitted solely upon the pleadings, the party seeking affirmative relief must, by the pleadings alone, show himself entitled to the relief sought. In such case the question is not, upon whom rests the burden of proof; but who, upon the facts established by the pleadings themselves, is entitled to judgment?</p> <p>2. Mandamus: Applications : Where Made. An application for a mandamus as between private persons or corporations, as to matters involving only private rights and liabilities, should be made, in the first instance, in the district court of the proper county; the accumulation of appeal and error cases in this court rendering it improper for it to exercise jurisdiction in any class of cases wherein it has not exclusive jurisdiction.</p> <p>Maxwell, C. X, dissenting. As I understand the point here decided, it is proposed to refuse to hear an application for mandamus in any case between private persons. To this I cannot give my assent, as it is liable to work injustice.</p>

Heard below before Church, J. Even if there was not a bona fide sale from the plaintiff to the defendant Scharman of the lands described in the land contracts in controversy, still the plaintiff, by her conduct in clothing the defendant Scharman with the indicia of ownership of the lands in controversy, and in permitting him to hold himself out to the world as the owner of the lands, and thus gaining a credit in the commercial world, and particularly with the defendants…

<p>Review: Briefs: Practice. Where no briefs are filed by either party in a ease brought here on error, this court will examine the pleadings and evidence, and if they support the judgment rendered, it will be affirmed. To obtain a review of specific errors they must be pointed out in the brief of the party complaining. Phoenix Ins. Co. v. Reams, 37 Neb., 423, followed.</p>

Error from the district court of Colfax county. Tried below before Post, J.' 1 High, Injunctions [2d ed.], secs. 125, 126, and cases cited; 7 Lawson, Rights, Rem. & Pr., 3702, and cases cited; Scofield v. State Ncetional Bank of Lincoln, 9 Neb., 316; Young v. Morgan, 9 Neb., 169.

Error from the district court of Sioux county. Tried below before Kinkaid, J. Improvements owned by claimants on public lands held by virtue of filings made under the pre-emption, homestead, and timber culture laws of the United States are property subject to taxation. (Mo Williams v. Bridges, 7 Neb., 423; Brooks v. Hiatt, 13 Neb., 503; Carkins v. Anderson, 21 Neb., 364; Paxton Cattle Co. v. First Nat.

Error from the district court of Holt county. Tried below before Norris, J. It is improper for the court to require counsel to prejudge the facts he expects to develop by a certain class of testimony, or for the court in any manner to indicate his idea of certain evidence proposed or offered.

Error from the district court of Custer county. Tried below before Gaslin, J. The opinion contains a statement of the case. Until the patent is issued the fee of the land remains in the United States. After payment of the purchase money by the entryman, and the receipt of it by the officers of the United States, the government may still decline, on various grounds, to perfect his title by the execution of a patent.

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

Heard below before Doane, J. The facts are stated in the opinion. The administrators should be allowed in their final account for money paid out of the funds of the estate to discharge debts legally due and owing from said estate, notwithstanding said claims were not filed and allowed by the probate judge before the final account of the administrators had been filed. (Sims v. Sims, 30 Miss., 341; Haralson v. White, 38 Miss., 178 ; Hill v. Buford, 9 Mo., 505;.

Error from the district court of Hall county. Tried below before Harrison, J. The facts are stated in the opinion. The company owes trespassers upon its tracks for right of way but one duty, to-wit, to use all possible efforts to avoid injury to them after they are discovered upon its tracks or right of way. If it has performed that duty, it is not liable to them for any injury they may sustain.

Error from the district court of Douglas county. Tried below before Doane, J. The word “hostile,” when applied to the possession of an occupant of real estate holding adversely, is not to be construed as showing ill will, or that he is an enemy of the person holding the legal title, but means an occupant who-holds and is in possession as owner, and, therefore, against all other claimants of the land.

<p>Ejectment: Title by Prescription: Permissive Occupancy. The decree in this case is affirmed, the facts and law being essentially the same as in the case of Smith v. Hitchcock, 38 Neb.,. 104, decided at the present term.</p>

Error from the district court of Custer county. Tried below before Gaslin, J. The opinion contains a statement of the facts. Where several persons are employed in the same general service, and one is injured by the carelessness of another, the employer is not responsible, though the negligent servant is a superior in grade of employment to the one injured (Deering, Negligence, sec. 204), and this rule includes foreman, superintendent, and boss.

Error from tbe district court of Madison county. Tried below before Norris, J. The court below sustained a motion to strike out, as redundant, scandalous, and irrelevant, certain portions of the answer. The ruling is assigned as error. The answer and motion are set out in the opinion. Reversed. Eraud may always be alleged where it exists and cannot be proved without being alleged, where it is germane to the issue and forms one of the cardinal facts constituting the defense.

<p>Error from the district court of Gage county. Tried below before Bush, J.</p>

Error from tbe district court of Lancaster county. Tried below before Chapman, J. Tbe opinion contains a statement of facts. There was no competent proof of submission to arbitrators. Evidence of the oral agreement entered into by counsel was incompetent. (Sec. 7, ch. 7, Comp. Stats., 1889.) cited Burnham v. Smith, 11 Wis., 270.

Error from the district court of Lancaster county. Tried below before Chapman, J. The facts are stated in the opinion. contending the building was vacant or unoccupied within the meaning of the policy and that the company is not liable, cited: Farmers Ins. Go. v. Wells, 42 O. St., 519; American Ins. Co. v. Padjield, 78 111., 167; Ashworth v. Builders Mutual Fire Co., 112 Mass., 422; Corrigan v. Connecticut Fire Ins. Co., 122 Mass., 298; JEtna Ins.

Error from the district court of Lancaster county. Tried below before Chapman, J. The clause in the policy limiting the time to six months from date of fire within which suit should be commenced is not binding under the facts disclosed by the record.

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

Error from the district court of Gage county. Tried below before Appelget, J. The parties having agreed that the corners were lost and to have the line surveyed, and acquiesced in the survey at the time and for two years thereafter, they are estopped from disputing the line thus agreed upon. The court will sustain an agreement that has been fully executed. (Trussel v. Lewis, 13 Neb., 418, 419; Brown v. Caldwell, 13 Am.

Error from the district court of Gage county. Tried below before Appelget, J. In the absence of an agreement to repair on the part of the landlord, the premises are hired in the condition in-which they are at the time of the demise, and the rent is-supposed to be arranged with reference to such condition. In such case, the landlord is under no obligation to repair,, and the lessee, if he wishes any repairs, must make them at his own expense.

Error from the district court of Gage county. Tried below before Broady, J. The second instruction correctly states the law as applicable to this case. (McKinster v. Hitchcock, 19 Neb., 100 Bull v. Harris, 31 111., 487; Straubher v. Mohler, 80 111.,. 21; Chubbuck v. Vernam, 42 N. Y., 432; Sutphen v„ Cushman, 35 111., 186 ; Kronenberger v. Binz, 56 Mo., 121 Chatham v. Niles, 36 Conn., 403.)

<p>Error from the district court of Gage county. Tried below before Bush, J.</p>

<p>Counties: Liability for Salary of Deputy County Clerk. A deputy county clerk is to be paid his salary out of the fees received by the county clerk in excess of the amount which he is authorized to retain. The county is not liable for such salary.</p>

<p>Error from tbe district court of Gage county. Tried below before Bush, J.</p> <p>Albertson v. State, 9 Neb., 430; Ryan v. State, 5 Neb., 276; State v. Ream, 16 Neb., 684; Ragoss v. Cuming County, 36 Neb., 375.</p>

<p>Error from the district court of Johnson county. Tried below before Broady, J.</p>

Error from the district court of Buffalo county. Tried below before Church, J. A tender of a deed by a vendor in a land contract must be made before an action can be maintained in equity for a foreclosure.

<p>Deeds: Escrow: Delivery Before Compliance With Conditions: Evidence of Authority: Review. The finding of the trial court that the deed executed by the plaintiff and deposited in escrow with a third person, to be delivered to the vendee on the performance by the latter of certain conditions, was delivered by the depository in escrow by instructions of the vendor before the conditions of the holding had been complied with, considered to be sustained by the evideuce in the case.</p>

<p>1. Counties: Population: Office of Register of Deeds. Each county in this state having a population of 18,003 or more, as shown hy the last national census, was entitled to elect a register of deeds at the last general election.</p> <p>2. -: -: -. A county having less than 18,003 inhabitants at the national census of 1890 was not entitled to elect such an officer, even though the state census of 1885 shows it possessed more than the above number of inhabitants.</p>

<p>Error from the district court of Keith county. Tried #below before Hamer, J.</p>

Error from the district court of Red Willow county. Tried below before Cochran J., The facts are stated in the opinion. The note and mortgage are admitted, and also default in the payment thereof. The plaintiff is therefore entitled to the possession of the property, unless the defendant can establish payment or satisfaction of the mortgage in some way.

<p>Review in Trial Court: Waiver oe right to Appeal. Where,, in an equitable proceeding, the unsuccessful party secures a re-examination by the district court of the questions at issue, upon an application in the nature of a bill of review, although by motion, instead of a petition, he will be held to have waived his right to appeal from such decree.</p>

<p>1. Review on Error: Motion for New Trial: Assignments of Error. One who desires to have reviewed, upon petition-in error in this court, alleged errors occurring at the trial, is required to assign the rulings complained of to the trial court in a motion for a new trial.</p> <p>3. Error Proceedings: Failure to Assign Errors: Dismissal. The failure to assign alleged errors as grounds for a new trial is not of itself sufficient reason for the dismissing of a petition in error by this court.</p> <p>3. --: -: -: Practice. But whenever it appears, from an inspection of the record in any cause, that the petition in error presents no question of law or fact for review by this court, such cause will he considered as submitted on its merits and the judgment or decree affirmed.</p>

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

<p>1. Briefs: Misconduct of Attorneys : Insinuations and Imputations of Unfairness and improper motives to the trial judge are highly improper and prejudicial to the party making them.</p> <p>2. Instructions: Authority or Attorney to Bind His Client. Where the question at issue was whether an alleged agreement had been made in a case pending, by an attorney of record for one of the parties, there being no controversy with respect to the extent of his authority, it is not error to refuse an instruction defining the power of an attorney to contract in the name of his principal.</p> <p>3. -. The trial court is not required to charge the jury in the exact language requested. It is sufficient if the substance of an instruction be given.</p> <p>4. Review: Harmless Error. A judgment will not be reversed on account of errors not prejudicial to the complaining party.</p> <p>5. Evidence of value examined, and held sufficient to sustain the judgment of the district court.</p> <p>6. Attachment: Liability or Garnishee: Unsatisfactory Disclosure. In an attachment suit it was stipulated that L., a garnishee, who had taken possession of a stock of goods to satisfy a mortgage executed by the defendant, should answer by affidavit “showing fully the amount of money remaining in his hands from sale of stock formerly belonging to the defendant,” and that upon» the payment of said money into court, less the amount of his mortgage and expenses, the garnishee should be discharged. Held, No defense in an action by the plaintiff against the garnishee after answer for an unsatisfactory disclosure, the cause of action alleged being the conversion of the stock of goods while in his possession.</p>

Error from the district court of Buffalo county. Tried, below before Hamer,. J. The opinion contains a statement of the case. Tbe plaintiff below was negligent in not getting off the car while he could safely do so. (Raben v. Central la. JR. Co., 35 N. W. Rep. [Ia.], 64, and cases cited.) Plaintiff below was negligent in that, finding the train in motion and going faster than he expected, he stepped from the car onto the platform.

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

<p>Appeal from the district court of Doúglas county. Tried below before Davis, J.</p>

<p>1. Master and Servant: Appliances: Negligence op Master: Liability por Injury to Servant. It is the duty of a master to furnish for* the use of his servant in the course of his employment, proper and safe appliances and instruments for the performance of the services required. And if the master fail so to do, he is liable for such damages as are the direct result of such negligence, unless the servant himself is guilty of such negligence as contributes directly to the injury; and this rule applies irrespective of whether the appliances and instruments so furnished were animate or inanimate.</p> <p>2. --: Furnishing Servant with Vicious Horse: Knowledge: Personal Injuries: Instructions. Where a master, a corporation, furnished a horse for the use of its servant in the line of his employment, wherein said horse injured the servant, the jury were properly instructed that even if they should find the horse was vicious and dangerous, still that the plaintifi could not recover unless the jury further found from the testimony that the master, through its managers or officers, knew, or by the exercise of proper care and diligence might have known, of the vicious and dangerous character of the horse.</p> <p>3. -: Vice-Principal: Evidence: Instructions. The evidence in this case justified the jury in finding that the agent who, in the employ of a common master with the servant, directed the said servant to use the horse, whereby said servant was injured, was not his mere co-servant, but in giving the instruction aforesaid was a vice-principal, and the master was, therefore, properly held liable for the inj uries received by the servant in obeying such instruction.</p>

<p>Appeal from the district court of Lancaster county. Heard below before Hall, J.</p>

<p>Error from the district court of Thayer county. Tried! below before Morris, J.</p>

Error from the district court of York county. Tried below before Smith, J. The opinion contains a statement of the facts. Cross-examination is limited to the facts elicited by the examination in chief.

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

<p>Seview: Instructions: Exceptions: Assignments oe Error. To obtain a review by the supreme court of an alleged erroneous ruling of the district court in the giving or refusing of an instruction, an exception must be taken to such ruling at the trial, and specifically assigned as error here in the petition in error.</p>

Error from the district court of Webster county. Tried below before Beall, J. The facts are stated in the opinion. The district court of Webster county was without jurisdiction. The action cannot be maintained against N. T. Jones, justice of the peace, outside of Hitchcock county.

Error from the district court of Lancaster county. Tried below before Tibbets, J. The facts are stated in the opinion. Tbe findings and decree in the divorce suit were conclusive evidence of cruelty of the husband, and competent evidence that the wife had just cause to leave her husband’s house and board and lodge with plaintiff.

Error from the district court of Lancaster county. Tried below before Tibbets, J. The facts are stated in the opinion.

Heard below before Doane, J. The facts are stated in the opinion. Here was a person who, having owned property, had by his own act transferred it to another, and executed a deed therefor. Is he not estopped from relying on his possession as evidence to subsequent purchasers that he claims title to the premises? A large and respectable line of authorities answers this question in the affirmative. (Wade, Notice, sec. 299; Scott v. Gallagher, 14 S. & R. [Pa.], 333; Newhallv.

Error from the district court of Gage county. Tried below before Broady, J. The opinion contains a statement of the case. Fraud is never presumed, but must be proved by the party asserting it, by a fair preponderance of evidence (Miller v. Finn, 1 Neb., 288; Clark v. Tennant, 5 Neb., 557; Missouri Valley Land Co. v. Bushnell, 11 Neb., 197; Clemens v. Brillhart, 17 Neb., 337; Western Ins.

Error from the district court of Lancaster county. Tried below before Hall, J. The action was by the First National Bank of Lincoln to recover $3,400 and interest from Leonidas K. Holmes as indorser of a promissory note of that sum executed by J. G. Hutchins and C. H. Hutchins. The defense pleaded by Holmes is set forth in the opinion.

• Error from the district court of Butler county. Tried below before Wheeler, J. Motion by defendants in error to dismiss on the ground that the order complained of in the petition in error is not a final order. The order sought to be reviewed vacates a judgment by default and grants defendants leave to answer. Motion sustained.

Error from the district court of Stanton county. Tried below before Powers, J. The opinion contains a statement of the case. • The answer of the defendant denies the several allegations of the petition and presents the question of the statute of frauds as one of the issues in the case. By the general denial the defendant had a right to avail itself of the invalidity of the agreement under the statute of frauds. It was unnecessary to plead the statute as a special defense.

Error from the district court of Douglas county. Tried below before 'Irvine, J. The motion to grant a new trial was set for hearing before the justice after the expiration of four days from the rendition of the verdict, and the justice was then without authority to entertain the motion. (Compiled Statutes, Code, sec. 983; Vaughn v. O’Conner, 12 Neb., 478.) The remedy sought is not the proper one. The remedy was by direct proceedings to correct the errors complained of.

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

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

<p>Error from the district court of Douglas county. Tried below before Irvine, J.</p> <p>Eaton v. Hasty, 6 Neb., 427; Thrailhill v. Daily, 16 Neb., 116; Berggren v. Berggren, 24 Neb., 764; O’Dear. Washington County, 3 Neb., 122; State v. Gaslin, 25 Neb., 72; Brusa v. Sandwich Mfg. Co., 28 Neb., 827.</p>

Exceptions to the decision of the district court for Gage county, Appelget, J., presiding. Piled by leave of the supreme court under the provisions of section 515 of the Criminal Code.

Error from the district court of Lancaster county. Tried below before Tibbets, J. The opinion contains a statement of the case. It was incumbent on defendant in error to prove that he had filed his claim in the office of the city clerk. (Comp. Stats. Neb., sec. 36, ch. 13a.) The statute is valid. Such provisions are uniformly enforced in other states.

<p>1. Homicide: Sufficiency oe Evidence. In order to sustain a conviction for a felony on purely circumstantial evidence the circumstances pointing to the guilt of the accused must be of so conclusive a character as to exclude every other reasonable hypothesis.</p> <p>2. -: -. 'It is not sufficient that the circumstances when considered together create a probability, although a strong one, of the guilt of the accused.</p> <p>3. -:-. To sustain a conviction for murder or manslaughter the corpus delicti must be established beyond a reasonable doubt; and where the circumstances relied on to prove that death was caused by the criminal act of a person other than the deceased are consistent with the theory that death was produced by natural causes, there is failure of proof.</p> <p>4. -: -. Evidence examined, and held not sufficient to exclude the hypothesis that death was produced by natural causes.</p>

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

<p>1. Sale: Lien or Unrecorded Chattel Mortgage: Notice. One who purchases personal property with knowledge of a prior, unrecorded mortgage thereon, takes subject to the lien created by such mortgage.</p> <p>2. Evidence examined, and held to sustain the finding that the plaintiff, who claims under a bill of sale of personal property, had actual notice of a prior, unrecorded mortgage thereon.</p>

Error from the district court of Cass county. Tried below before Chapman, J. The opinion contains a statement of the case. Though a chattel mortgage, absolute in form and given for a definite sum as being due from, the mortgagor, was in fact given only to indemnify the mortgagee against liability as joint maker with the mortgagor on certain notes, yet this would not invalidate the mortgage, if in fact a bona fide liability existed upon such notes.

Heard below before Chapman, J. The facts are stated in the opinion. It is not claimed the owner of the fee ever authorized the building of the structures, or even knew they were constructed. No lien, therefore, attached. (Sec. 1, ch. 54, Comp. Stats.; Stevens v. Lincoln, 114 Mass., 478.) The lien could not attach to a greater interest than the lessee had in the premises.

Error from the district court of Johnson county. Tried below before Broady, J. The opinion contains a statement of the case. It was error to overrule the motion for leave to amend defendants’ answer. (Sec. 14, ch. 32, Comp. Stats.; Loebv. Millner, 21 Neb., 392.) The county court is controlled by the same law in the entering of judgments as is a justice of the peace, and must render-judgment within four days from the time of trial.

Error from the district court of Johnson county. Tried below before Broady, J. The opinion contains a statement of the case. Where waters of a stream disperse themselves over low ground, without any well marked course, but gather- up lower down into a defined channel, they are not surface water while in the dispersed state, and interference with them gives the inj ured party a right of action.

<p>Liability of Principal for Storage of Goods in Agent’s Store-Boom After Expiration of Agent’s Individual Lease: Landlord and Tenant. After the expiration of a lease to a retail dealer in agricultural implements, some of the implements were permitted for a time to remain in the room wherein the business of said dealer had been carrier! on, after which said implements were turned over to the plaintiff in error. Meld, That these facts did not render liable the plaintiff in error for the storage of said goods after the expiration of the term of the lease, even though in said retail business the lessee had been the agent of the plaintiff in error, no such relation having been disclosed by said lessee or at all acted upon by the lessor.</p>

Original action in the nature of quo warranto to oust defendant of its franchise. Action dismissed. A former opinion in this case upon a demurrer to the information is reported in 24 Neb., 143.

Error from the district court of Buffalo county. Tried below before Hamer, J. The opinion contains a statement of the case. The mortgages were voluntarily made without the knowledge of some of the mortgagees. By the mortgages Wright & Gregg conveyed all their property. The mortgages were, therefore, fraudulent and void, as being against the assignment law of this state. (Ch. 6, Comp. Stats.; White v. 'Cotzhausen, 9 Supreme Ct. Rep., 309; Kellog v.. Biehardson, 19 Fed.

<p>Error from the district court of Johnson county. Tried below before Broady, J.</p> <p>Keybers v. Me Comber, 67 Cal.,'395; Kilpatrick v. Callender, 34 Neb., 727.</p> <p>Code, sec. 530; Williams v. Golden, 10 Neb., 434; Frazier v. Syas, 10 Neb., 117; State v. Sanford, 12 Neb., 430; Chesney v. Francisco, 12 Neb., 626-; Desmond v. State, 15 Neb., 439.</p>

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

<p>Wrongful Seizure and Sale Under Writ of Attachment: Liability of Sheriff: Review. There is no question of law involved in this case, and the verdict of the jury being the only one that should have been rendered on the testimony, the judgment is affirmed.</p>

Error from the district court of Adams county. Tried below before Gaslin, J. The facts are stated in the opinion. The bill of lading was the written contract of the parties. Parol evidence to prove a prior verbal agreement contradicting its provisions was inadmissible. (Delaney v. Linder, 22 Neb., 280; Goss v. Lord Nugent, 5 Barn. & A. [Eng.], 64*; MoNish v. Reynolds, 95 Pa.

<p>Error from the district court of Gage county. Tried below before Broady, J.</p> <p>Holmes v. Boydston, 1 Neb., 346; French v. Ramge, 2: Neb., 254; Sycamore Co. v. Sturm, 13 Neb., 215; Bridges v. Lanham, 14 Neb., 369; Denver, T. & G. R. Co. v. Hutchins, 31 Neb., 572.</p>

Error from the district court of Douglas county. Tried below before Keysor, J. The opinion contains a statement of the case.

<p>Master and Servant: Defective Appliances: Personal Injuries: Evidence: Review. In an action for personal injuries, the only question being the sufficiency of the testimony to sustain the verdict, and the testimony being ample on.every material point, the verdict will not be set aside.</p>

<p>Original application for mandamus to compel the respondents to sign a bill of exceptions. Writ denied.</p> <p>Cobb v. Thornton, 8 How. Pr. [N. Y.], 66; Bank of Rochester v. Emerson, Í0 Paige [N. Y.], 115; Davidson v. Myers, 24 Md., 538.</p>

Heard below before Appelget, J. Russell v. Lau, 30 Neb., 812. Transcripts of judgments rendered in the county court become liens when filed in the office of the clerk of the district court. (Sec. 18, eh. 20, Comp. Stats.; Eaton v. Ryan, 5 Neb., 47; Lamb v. Sherman, 19 Néb., 681.)

Original application for writ of habeas corpus. The facts are stated in the opinion. The purpose of holding a person in custody to answer at a trial according to the law of the land, is not to punish him, but to secure his attendance at the trial. The constitution provides for release on bail, and that excessive bail shall not be required.

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

<p>1. Statute of Frauds: Sufficiency- of Memorandum. The written memorandum required by section 9 of our statute of frauds (ch. 32, Comp. Stats.) may be made out by connecting two or more separate papers, such as the written correspondence between the parties.</p> <p>2. -: -. It is not essential in such case that each paper be signed by the party sought to be charged, provided those not thus signed are referred to with reasonable certainty in those which are signed.</p> <p>3. -: -: Parol Evidence. But the relation to each other of the documents relied upon to satisfy the requirement of the statute must appear on their face and cannot be established by parol evidence.</p>

<p>Validity of Mortgage Upon Life Estate. Under the provisions of section 17, chapter 36, Compiled Statutes, if the homestead was selected from the separate property of either husband or wife, it vests on the death of the person from whose property it was selected in the survivor for life, and afterwards in his or her heirs forever, etc. This life estate the survivor may mortgage, and the purchaser under the decree of foreclosure will acquire the life estate.</p>

<p>1. A motion to dissolve an attachment, to be available, must be made before final judgment in the action. Where such a motion has been made and heard before the trial of the cause, and taken under advisement, the court may, after judgment for the plaintiff, rule upon the motion.</p> <p>2. An affidavit for attachment is not void, although purporting in its opening clause to be that of a corporation plaintiff, where it sufficiently appears from the whole affidavit that it is that of the agent of the corporation, and that such agent in fact made oath thereto and signed it.</p> <p>3. An affidavit for an attachment may be amended by leave of court, even after a motion to quash the writ is filed, because of that particular defect. (Struthers v. McDowell, 5 Neb., 491.)*</p> <p>4. Bill of Exceptions. A County Judge has no power or authority to sign a bill of exceptions preserving the evidence used in the hearing of a motion to discharge an attachment. (Baer v. Otto, 34 O. St., 11.) Maxwell, C. J., dissenting.</p>

<p>Fraudulent Conveyances: Rights oe Creditors: Notice to Purchasers: Evidence. In an-action which involved the good faith of the purchaser of an entire stock of goods of the value of $4,500, which were paid for by the transfer of eight lots in an addition to Sioux City, of the alleged value of $2,400, to the seller’s wife, and the remainder in notes of third parties, having some time to run, held, that the proof and instructions were too much restricted to submit the matter in full to the consideration of the jury.</p>

<p>Original application for injunction to restrain the collection of taxes.</p> <p>South Platte-Land Co. v. Buffalo County, 7 Neb., 257; Burlington &■ M. It. It. Co. v. Cass County, 16 Neb., 138; Touzalin v. City of Omaha, 25 Neb., 817; Earl v. Duras, 13 Neb., 234; Sutherland, Statutory Construction, secs. 235, 237, 238.</p> <p>McGee v. State, 32 Neb., 149.</p>

<p>Rehearing of preceding case, 38 Neb., 543.</p>

<p>Error from the district court of Douglas county. Tried below before Ferguson, J.</p>

<p>On an appeal from.an award of damages for the construction of a viaduct it appeared from the proof that the damages were grossly inadequate. The verdict and judgment, therefore, are set aside and the cause remanded for farther proceedings.</p>

<p>Rehearing of case reported in 32 Neb., 238.</p>

<p>Error from the district court of Douglas county. Tried below before Ferguson, J.</p>

Error from the district court of Douglas county. Tried below before Ferguson, J. The opinion contains a statement of facts. Judgments regularly entered become final at the end of the term. The court thereafter has no power to vacate the same except upon the grounds enumerated in section 602 of the Code. (Freeman, Judgments [3d ed.], sec. 96; Carlow v. Aultman, 28 Neb., 672.) Upon appeal from a justice court the appellant is not obliged to notify the appellee.

Error from the district court of Douglas county. Tried below before Irvine, J. On appeal to the district court from a lower one, the cause must be tried de novo, with the issues precisely the same as at the trial below. {O'Leary v. Isleey, 12 Neb., 136; Baler v. Humpall, 16 Neb., 127; Union B. JR. Co. v. Ogilvy, 18 Neb., 638; Fuller v. Sehroeder, 20 Neb., 631; Bishop v. Stevens, 31 Neb., 786.)

<p>1. It is the province of the jury to determine the credibility of witnesses and the weight which should be given their testimony.</p> <p>2. Credibility of Witnesses: Review. A jury is not required to decide a disputed proposition of fact merely by a count of witnesses, but should determine which are the most worthy of credit; and, where the evidence is conflicting, a verdict based upon the testimony of the minority of the witnesses will not be disturbed by this court on error or appeal, unless it is manifestly wrong.</p> <p>3. Action on an Account: Payment: Instructions. Held, That the instructions fairly submitted to the j ury the disputed question of fact in the case.</p>

Motion to dismiss appeal from a decree of the district court of Washington county, and motion to strike the motion to dismiss from the files. Heard below before Scott, J. Appeal dismissed.

Error from the district court of Lancaster county. Tried below before Hall, J. The facts are stated in the opinion. A member of a voluntary unincorporated association cannot maintain an action in his own name upon'a contract made with the association.

<p>Beal Estate Agents: Review of Judgment for Commission. In an action by a real estate agent to recover a commission alleged to have been earned by himself in procuring a satisfactory purchaser of the real property of the defendant, the sole matter in controversy having been whether payment was essentially conditioned upon the happening of a subsequent event, the verdict of a jury upon that point, being supported by competent evidence under proper instructions of the court in respect to the matters in controversy, will not be disturbed.</p>

<p>Review: The only assignment or error in tlais case being that the trial judge was wrong in a certain conclusion of fact, tbe evidence examined, and held to support tbe court’s finding, and its decree affirmed.</p>

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

, 96. The motion was referred, to the supreme court commissioners, and, upon their recommendation, was overruled. Maxwell, C. J.,' dissented from the order'overruling the motion, and filed the opinion following

<p>A second forfeiture of a recognizance, incurred because the principal a second time failed to appear according to the condition of his obligation, will not be vacated and canceled on the return of the principal after such forfeiture, where sufficient excuse is not shown for his failure to appear before the forfeiture taken, and the record shows that the prosecution has been deprived of proofs by the delay. Rule applied.</p>

<p>A forfeiture of a recognizance will be vacated and canceled on the payment of costs, where, after the default and on the same day, the principal voluntarily appears in court, in case sufficient cause is shown for his failure to appear according to the obligation of his recognizance.</p>

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

Heard below before Hastings, J. The facts are stated in the opinion. Lilies v. Kellogg, 37 Neb., 259. To constitute a dedication of private property for public streets an intention on the part of the owner to dedicate is absolutely essential, and unless such intention can be found in the facts and circumstances, no dedication exists.

Heard below before Field, J. The vendor who sells his property with stipulation that the vendee build, subjects his property to liens for such construction. This liability he cannot absolve by after-wards conveying and taking a mortgage for purchase money. By the mere device of circuity he cannot free the property of the' equity of lien fastened upon it by his contract. (Bohn Mfg.

<p>Appeal from the district court of Gage county. Heard below before Appelget, J.</p> <p>See opinions for authorities upon the propositions discussed.</p>

<p>Error Proceedings: Record for Review. Where a proceeding in error is prosecuted from the judgment of a justice of the peace to the district court, a petition in error must be filed in that court, specifically enumerating the errors relied on for a reversal of such judgment; and to enable the supreme court to review the judgment of the district court on said error proceeding, the petition in error, on which the district court acted, must be incorporated into the record brought here. ■</p>

<p>Executors and Administrators: Probate Courts: Allowance to Widow. Under subdivision 2, section 176, chapter 23, Compiled Statutes, 1893, a probate court bas authority to make an allowance to a widow out of the personal estate or income of the real estate of her deceased husband, necessary for her maintenance, according to her circumstances, during the settlement of the estate, although the husband, by his will, lawfully disposed of all his property and the widow has accepted the provisions of such will.</p>

Error from the district court of Holt county. Tried below before Bartow, J. The facts are stated in the opinion. In the absence of statutory power a board of supervisors is without authority to sign, settle, and allow a bill of exceptions.

Heard below before Wakeley, J. The opinion contains a statement of the case. Where one of two tenants in common conveys the entire estate by warranty deed to a purchaser, and the purchaser enters into possession under such deed and receives the rents and pays the taxes, his possession is construed as coextensive with the estate conveyed by the deed, and becomes adverse to his co-tenant from the moment of entry.

<p>Error from the district court of Cass county. Tried below before Field, J.</p>

Error from the district court of Lancaster county. Tried below before Field, J. The facts are stated in the opinion.

Heard below before Field, J. The opinion contains a statement of the case. The plaintiff is entitled to a prior lien for the balance of his purchase money under and by virtue of the terms of the contract of sale. (Neil v. McKinney, 11 O. St., 58; Zeigler, Balter No.attempt is made to reform the contract. The evidence admitted attempting to show there was a verbal agreement that a building should be erected was incompetent. (Bast v. Fix’st Nat.

Error from the district court of Douglas county. Tried below before Davis, J. By the amended petition four breaches are álleged: First, the failure to pay over the sum of $236,361.60; second, the deposit in and loan to the Capital National Bank of Lincoln, in Lancaster county, of $236,361.60 and over; third, the deposit in and loan to the Merchants National Bank, in Douglas county, of $80,510 and over; fourth, the deposit in and .loan to the United States National Bank, in…

Heard below before Norris, J. The opinion contains a statement of the case. The land in controversy is not subject to taxation by the state while the legal title thereto is in the United States and held to secure unpaid purchase money not yet due. (Van Brocldin v. Tennessee, 117 U. S., 151; Wisconsin C. B. Go. v. Price County, 133 U. S., 496; Kansas P. B. Co. v. Prescott, 16 Wall. [U. S.], 603; Union P. B. Co., v. McShane, 22 Wall. [U. S.], 444; White v. Burlington & 3Í.

Heard below before Scott, J. The opinion contains a statement of the case. Appellant did not forfeit her right to paid-up insurance through failure to surrender to appellee her original policy within six months from date of default. Time was not made essential by the terms of the p9licy. (Waterman, Specific Performance, sec. 462; May, Insurance, secs. 342, 343 ; Mutual Life Ins. Co. v. French, 30 O. St., 240; Tutt v. Covenant Mutual Life Ins. Co., 19 Mo.

Error from the district court of Dawes county. Tried below before Bartow, J. The facts are stated in the opinion. The petition in this case shows that there was some kind of an assessment, some sort of a levy of taxes, and some kind of a tax list, which, for some reason not stated, was, in point of law, not good as such. This is not sufficient. There must be some facts stated from which the court can see that the assessment is in fact a legal nullity.

Error from the district court of Lancaster county. Tried below before Hall, J. Where any evidence is adduced tending to prove the allegations of the plaintiff’s petition, the cause should be submitted to the jury.

Error from the district court of Lancaster county. Tried below before Hall, J. A married woman can bind her separate property by general engagements. (Davis v. First Nat. Bank of Cheyenne, 5 Neb., 246; Savings Bank v. Soott, 10 Neb., 87.) Where a married woman having a separate estate executes a promissory note,-the presumption arises that she intends to charge her separate estate with its payment.

Tried below before Church, J. When a plea in bar is interposed to a prosecution upon indictment, and it states facts which, if true, would constitute a bar to further prosecution, the truth of the plea must be ascertained by a jury. (State v. Briebnow, 16 Neb., 131.)

Error from the district court of Lancaster county. Tried below before Tibbets, J. The opinion contains a statement of the case.

Heard below before Hall, J. The opinion contains a statement of the ease. The county commissioners have exclusive original jurisdiction in laying out and establishing roads. Held: in states having a constitutional provision like our own, unconstitutional and void.

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

<p>Appeal from the district court of Lancaster county. Heard below before Tibbets, J.</p> <p>Demaray v. Little, 19 Mich., 244; Capital Banh of Topeha v. Himtoon, 35 Kan., 577; Morrisv. Robey, 73 III., 462; Sinnettv. Gralle, 4 W. Va., 600; Gould v. Gager, 18 Abb. Pr. [N. Y.], 32; Griffith v. Hadley, 10 Bosw. [N. Y.], 587; King v. Morris, 2 Abb. Pr. [N. Y.], 296; Seller v. Lingerman, 24 Ind., 264; Davis v. McGee, 28 Fed. Rep., 867; Cardenv. Lane, 2 S. W. Rep. [Ark.], 709; Beanv. Hoffendorfer, 2 S. W. Rep. [Ky.], 556; In re Palmer, 13 Fed. Rep., 870.</p> <p>Neligh v. Keene, 16 Neb., 407; Crowell v. Johnson, 2 Neb., 146; Day v. Thompson, 11 Neb., 123; Wilcox v. Raben, 24 Neb., 368.</p>

Error from the district court of Lancaster county. Tried below before Field, J. The facts are stated in the opinion. The petition states a cause of action against McMurtry and McBride. (Sample v. Hale, 34 Neb., 220; Sepp v. Mc-Cann, 50 N. W. Rep. [Minn.], 246.) The evidence shows a strict compliance with the contract on the part of Layne & Sweet, except when the city waived performance.

Heard below before Bkoady, J. An attorney having control of a judgment for his client cannot, without the consent of his client, expressed or implied, become a purchaser of lands at a sale under execution issued thereon; and if he does so purchase, he becomes, like any other agent, a trustee for his client. Such a trust arises by operation of law and continues until barfed by lapse of time, or until terminated by an election to ratify the purchase, thus giving it validity.

<p>1. Tax Liens: Foreclosure: Pleading. A brought suit against B and others to foreclose tax liens. B, in 1891, answered averring that she had purchased portions of the premises in controversy in 1870 and in 1871 for taxes, the last payment being made in 1874, and asking that her title, interest, and claim be decreed superior to A’s. Held, first, that treating the answer as setting up title in B under the tax sales and deeds issued thereunder, it failed to state any defense against A’s petition to foreclose liens for subsequent taxes; and, second, viewed as an assertion of tax liens, they appeared on the face of the answer to be barred by the statute of limitations.</p> <p>2. An action to foreclose tax liens must be brought within five years after the expiration of the time to redeem. Helphrey v. Redieh, 21 Neb., 80; D’Gette v. Sheldon, 27 Neb., 829; Warren v. Demary, 33 Neb., 327, followed.</p> <p>3. Statute of Limitations: Tax Liens. When land has been sold for taxes and a suit to foreclose the lien therefor is not instituted within five years from the expiration of the time to redeem, the lien is extinguished and ceases to be a charge upon the land. The statute in that respect does not merely operate to defeat the remedy, but limits the duration of the lien itself.</p> <p>4. -: -: Priority. The holder of tax certificates, whose lien is barred by the statute of limitations, has no equity as against the holder of subsequent tax liens whereby he can require such subsequent lienor to discharge the barred liens or admit their priority as a condition for foreclosing his own.</p>

Exceptions to the decision of the district court for Lancaster county, Hall, J., presiding. Filed by leave of the supreme court under the provisions of section 515 of the Criminal Code.

Heard below before Hall, J. Persons who furnish lumber and materials to manufacturers, to be made up into articles used in the construction of buildings, cannot obtain liens against the buildings in which such articles are used. (Great Western Mfg. Co. v. Hunter, 15 Neb., 32; Pitts v. Bomar, 33 Ga., 96; Foster v. Dohle, 17 Neb., 631.) The materials mentioned in the second cause of action are not the proper subject of a lien.

Error from the district court of Lancaster county. Tried below before Hall, J. All civil actions in Nebraska other than proceedings in attachment are commenced with the issuance of the writ of summons which is served on the defendant.

Error from the district court of Douglas county. Tried below before Keysor, J. The opinion contains a statement of the case. The law regards each daily edition as a separate newspaper. (State v. City of South Omaha, 33 Neb., 876; Russell v. St. Paul, M. & M. R. Co., 31 N. W. Rep. [Minn.], 692; Seammon v. Oity of Chicago, 40 111., 146 ; Hull v. Chicago, B. & Q. B. Co., 21 Neb., 371.) Fairchild v. Oity of St. Paul, 49 N. W. Rep. [Minn.], 325; Lambert v. Stephen, 29 Neb., 283.

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

<p>Error from the district court of Pierce county. Tried below before Powers, J.</p>

<p>1. Rape : Evidence. On a trial of an information for an assault ■with intent to commit a rape, it is not necessary to prove the commission of the offense on the particular day named in the-information, provided the same be within the time limited by statute for the prosecution of the offense.</p> <p>2. -: -. As a general rale, it is incompetent for the state in a criminal prosecution to prove that the prisoner at some other time committed an offense similar to the one with which he stands charged. This rule has its exceptions; but whether the crime of rape, or an assault with intent to commit that offense, falls within the rule or its exceptions, is not decided.</p> <p>3. Criminal Law: Proof of Distinct Crimes: Practice. Where a single crime is charged in an information, and the state on the trial, for the purpose of proving the offense alleged, introduces testimony tending to prove similar, but distinct crimes, the proper practice is for the accused to move the court to require the prosecutor to elect on which transaction he will rely for a conviction.</p> <p>4. Tbe word “ abuse,” in the sense it is used in section 12 of the Criminal Code, is synonymous with “ravish.”</p> <p>5. Criminal Law: Presumption op Innocence: Reasonable Doubt. In a criminal prosecution the court instructed the jury, in substance, that the law presumed the accused innocent of the crime charged, and that such presumption continued until his guilt should be established by competent evidence beyond a reasonable doubt. Held, Sufficient to apprise the jury that their verdict must be based upon the evidence in the case alone, and that it was not error to refuse an instruction that “ the information in this case is of itself a mere accusation or charge against the defendant, and is not, of itself, any evidence of the defendant’s guilt; and' no juror in this case should permit himself to be, to any extent, influenced against the defendant because or on account of the information in this case; that your personal opinion as to facts not proven cannot properly be considered as the basis of your verdict. You may believe as men that certain facts exist, but as j urors you can only act upon evidence introduced upon the trial, and from that alone you must form your verdict, unaided, unassisted, and uninfluenced by any opinion or presumption not formed upon the testimony.”</p> <p>6. Argument in Absence of Court: Misconduct of Attorney. On the trial of a criminal cause the county attorney made a portion of his closing address to the jury while the trial judge was absent from the court room, and in said address said prosecutor, over the objection of the accused, misquoted the testimony in a material matter, to which counsel for the prisoner at the time objected, but, owing to the said absence of the judge, no ruling was had thereon. Held, Such error as demanded a reversal.</p>

Tried below before Tibbets, J. It was error for the court to instruct the jury that it devolves upon the defendant to justify his act, on the ground of self-defense, by a preponderance of the evidence. {People v. Coughlin, 32 N. W. Rep. [Mich.], 905; State v. Cross, 26 N. W. Rep. [Ia.], 62; State v. Coleman, 6 S. Car., 185; Preuit v. People, 5 Neb., 378; Vollmer v. State, 24 Neb., 838; Farris v. Commonwealth, 14 Bush [Ky.], 363; Buchner v. Commonwealth, 14 Bush [Ky.], 601;…

<p>1. Mechanics’ Liens: Materials Furnished. The lien of a material-man for materials furnished for the erection of a building by virtue of an agreement with the contractor extends to such materials only as are used in, or delivered at, the building ' for use therein.</p> <p>2. Evidence examined, and held not sufficient to entitle the plaintiff, a material-man, to a lien for materials furnished by virtue of an agreement with the contractor. .</p>

<p>1. Liability of Sheriffs for Failure of Duty in Serving. Writs. A sheriff who has received for service an order of attachment, and garnishee notices for alleged debtors of the defendant, will not be held liable in an action by the plaintiff in the attachment suit on the sole ground that he procured like notices to be served on the same parties as garnishees in a suit by attachment, in which he is plaintiff against the same defendant, after the receipt of the notices first mentioned and before service thereof.</p> <p>2. -Pleading. Petition examined, and held not to state a cause of action.</p>

Error from the district court of Douglas county. Tried below before Doane, J. The court erred in giving the following instruction: “The burden of proof in this ease is on the plaintiff to show by a preponderance of the testimony her right to the possession of the property in controversy at the commencement of this suit; and unless she has satisfied you, by a fair preponderance of the testimony, of her right to such possession, she cannot recover in this action.” It requires…

Motion by appellee to dismiss appeal from the district court of Douglas county, and motion by appellants for leave to file a petition in error. Appeal dismissed. Motion for leave to file petition in error overruled. <

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

Error from the district court of Cuming county. Tried below before Norris, J. A former opinion in this case is reported in 27 Neb., 338.