Volume 39 — Nebraska Reports

Error from the district court of Douglas county. Tried below before Hopewell, J. The opinion contains a statement of the case. contending that there was error in the instructions, cited: Wagner v. Gage County, 3 Neb., 242; Fremont, E. & M. V. R. Co. v. Whalen, 11 Neb., 591; Sohaller v. City of Omaha, 23 Neb., 332; Chicago, K. & N. R. Co. v. Wiebe, 25 Neb., 544.

Error from the district court of Douglas county. Tried below before Doane, J. The opinion contains a statement of the case. All transactions between husband and wife are presumed to be fraudulent, and the burden is upon the wife to show by the clear and indisputable preponderance of the evidence the consideration for the claim which she makes against the estate of her husband when such claim is made as against the rights of creditors.

Appeal and error from the district court of Lancaster county. Heard below before Field, J. The facts are stated in the opinion. A rule never to be lost sight of in determining the liability of a surety or guarantor is that he is a favorite of the law, and has a right to stand upon the strict terms of his obligation when such terms are ascertained. This is a rule universally recognized by the courts, and is applicable to every variety of circumstances.

Error from the district court of Douglas county. Tried below before Irvine, J.' The opinion contains a statement of the case. But one Christian name is recognized by the courts. (Maxwell, Pleading & Practice, p. 87; Choenv. State, 52 Iud., 347; Phillips v. Evans, 64 Mo., 17.) Where parties are known by different names, either one may constitute the Christian name in contemplation of law.

The burden of proof was upon the plaintiff. There is no evidence that the defendant’s servant, in the management of the engine, unlawfully and unnecessarily opened the valves, and frightened the plaintiff’s horses. The motion to direct a verdict for defendant should have been sustained.

Error from the district court of Lancaster county. Tried below before Hall, J. The opinion contains a statement of facts. In the second instruction there are the following errors: The instruction requires proof of plaintiff’s title, proof whereof had been waived in open court, so that it was no longer in controversy.

<p>Error from the district court of Lancaster county. Tried below before Hall, J.</p> <p>cited: Wood-bury v. Obear, 7 Gray [Mass.], 467; Williams v. Brown, 28 O. St., 547.</p> <p>cited : Shaber v. St. Paul R. Co., 28 Minn., 108; State v. Manchester & L. R. Co., 52 N. H., 528; Foxworthy v. City of Hastings, 25 Neb., 133.</p>

Heard below before Hastings, J. Where the original contract is tainted with usury, all subsequent renewals or extensions of the same are also tainted with the vice of usury. (National Bank of Wintered, v. Eyre, 52 la., 114; Exley v. Berryhül, 33 N. W. Rep. [Minn.], 567; Cottrell v. Southwick, 32 N. W. Rep. [Ia.], 22; Richards v. Kountze, 4 Neb., 205.)

<p>Judgment for Too Small an Amount: Evidence: Review. Where, on the review of a judgment of the district court in an action at law, the uncontradicted evidence shows that the plaintiff in error should have recovered a larger sum, this court will reverse the cause.</p>

<p>Criminal Law: Review. In order to secure a review in this court of alleged errors occurring at the trial, such errors must be pointed out in a motion for a new trial, addressed to the district court, and a ruling obtained thereon.</p>

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

<p>1. Pleading: Reply: Confession and Avoidance. A general denial in the reply puts in issue only the truth of allegations of new matter in the answer. Facts in the nature of a confession and avoidance must be specially pleaded.</p> <p>2. The conclusion announced on a former hearing of fchis case, 32 Neb., 490, adhered to.</p>

In condemnation proceedings the court should hold the condemning party to a strict observance of the statute. (Republican V. R. Co. v. Fink', 18 Neb., 82; Omaha & N. W. R. Co. v. Menlc, 4 Neb., 21; Ray v. Atchison & N. R. Co., 4 Neb., 439.) The description of the land taken, contained in the petition and other papers in the condemnation proceeding, is insufficient to give the county judge jurisdiction. {Pennsylvania R. Co. v. Porter, 29 Pa.

The signing of the lease by the lessees, and taking possession of the leased premises, and paying rent under the lease, which lease was accepted by the lessor and placed upon record, and rent received under it, made it a perfect, binding lease for one year upon both parties, even though it may not have been signed by the lessor.

Heard below before Wakeley, J. The opinion contains a statement of the case. The affidavit for a lien shows the venue to be Webster county. The attesting seal is that of a notary public of Douglas county. The affidavit was insufficient, and the filing of the paper did not create a lien. (Secs. 5, 6, ch. 61, Comp. Stats.; Blair v. West Point Mfg. Co., 7 Neb., 347; Colman v. Goodnow, 36 Minn., 9; Davis v. Rich, 2 How.

Error from the district court of Douglas county. Tried below before Doane, J. The mere change of the name of a corporation does not affect its rights, property, or credits. (Rosenthal v. Madison & Indianapolis Plank Road Co., 10 Ind., 358; Town of Reading v. Wedder, 66 111., 80; Chiles v. Bridges’ Heirs, Litt. Sel.

Heard below before Wakele'y, J. The opinion contains a staiement of the case. The word “heirs,” as used in the will, was intended to mean, and does mean, children. (Barton v. Tuttle, 62 N. H., 558; Moore v. Lewis, 4 O. Circuit Court, 284; Davis v. Davis, 39 N. J. Eq., 14; Jarvis v. Quigley, 10 B. Mon. [Ky.], 106; Haley v. Boston, 108 Mass., 579; Haverstick’s Appeal, 103 Pa.

Error from the district court of Douglas county. Tried below before Hopewell, J. The facts are stated in the opinion. Where a person is taken or inVeigled by force, fraud, or other means into the jurisdiction of the court for the purpose of getting service upon him, the service is bad and the court will acquire no jurisdiction. (In re Robinson, 29 Neb., 135; Wyokojf v. Packard, 20 Abb. N. Cas. [N. Y.], 420; Compton v. Wilder, 40 O. St., 130; Van Horn v. Great Western Mfg.

<p>1. Mortgages: Purchase op Premises by Trustee: Deficiency Judgment. Where several parties purchased real property, the title being taken in the name of one of them as trustee for all the purchasers, and the deed of conveyance to him recited, as part of the consideration for the conveyance, that the grantee named as trustee agreed and assumed to pay a mortgage in existence upon the premises conveyed, held, that upon an averment of the above facts in the petition there should not be inferred of necessity the conclusion that the cestuis que trust, for whom the trustee was acting, were individually liable for a deficiency which might remain unsatisfied upon the foreclosure sale of the mortgaged premises. Following Beeves v. Wilcox, 35 Neb., 779.</p> <p>2. An agreement to pay an existing mortgage, as part of the consideration for a conveyance of mortgaged premises, need not be inserted in the deed, neither must it necessarily be in writing. Such an agreement is an independent undertaking of the party making it, the conveyance affording sufficient consideration to sustain it when its existence is established by a preponderance of evidence. Following Bockwéll v. Blair Savings Bank, 31 Neb., 128.</p> <p>3. Cestuis Que Trust: Finding Upon Conflicting Evidence: Review. In the trial court there was evidence that the agreement of the trustee, in whom was vested the title, that he would assume and pay an existing mortgage, was made upon the authority of and to bind the cestuis que trust, contradicted by other evidence upon that proposition. Held, That the finding of the trial court in favor of said cestuis que trust should not be disturbed.</p> <p>4. Bill of Exceptions: Settlement by Clerk. A clerk can settle a bill of exceptions upon agreement of parties only when the unanimous consent of all the parties interested is shown by a stipulation to that effect attached to the proposed bill of exceptions, signed either by the parties themselves or their attorney of record in the case wherein the bill is proposed, or by an attorney or agent whose special authority to sign is affirmatively shown.</p> <p>5.” A bill of exceptions to be settled by the clerk upon agreement of parties, must be acted upon by such clerk within the time fixed by statute, or within the time allowed by the court or j udge for the settlement of such bill of exceptions.</p>

<p>Rape: Review of Evidence. Where the only question presented was as to the sufficiency of the evidence to sustain the verdict, and there is found ample evidence in its support, the judgment of the district court must be affirmed.</p>

Error from the district court of Douglas county. Tried below before Hopewell, J. The facts are stated in the opinion. Although the facts may not be such as to make this a case of technical duress, it amounts to undue influence, and the plaintiff should recover.

Error from the district court of Douglas county. Tried below before Davis, J. The facts are stated in the opinion. contending that the instructions directing the jury to allow damages for injury to business are erroneous, and that the verdict is not supported by the evidence, cited : Lawrence v. Hagerman, 56 111., 77; Campbell v. Chamberlain, 10 la., 337; Lowenstein v. Monroe, 55 la., 82; Watson v. Sutherland, 5 Wall. [U. S.], 74; North v. Peters, 138 U. S., 271; French v.…

<p>Review: Sufficiency of Evidence. There being no question of law involved in the consideration of this case, the evidence examined, and held, to support the verdict.</p>

<p>1. Action Quia Timet. In an action having for its object the declaration of a trust in land in favor of the plaintiff and the quieting of title in him it is incumbent upon the plaintiff to affirmatively establish an equitable title in himself, and if he fail to do so, the nature of defendant’s title, or the existence of any title in defendant, is immaterial.</p> <p>2. Pleading. Under the Code two or more defenses can be interposed to the same cause of action, provided they are not inconsistent with one another; and they are not inconsistent unless the proof of one necessarily disproves the other.</p> <p>3. A plea of estoppel may be joined with a general denial when the averments by way of estoppel are not inconsistent with such denial.</p> <p>4. The conclusion of the court in the former opinion in this case, 34 Neb., 782, as to the sufficiency of the evidence, reaffirmed.</p>

<p>1. Voughtv. Foxworthy, 38 Neb., 790, reaffirmed.</p> <p>2. Judicial Sales: Appraisement: Confirmation. The provisions of the statute requiring a sheriff to deduct from the real value of the lands levied upon the amount of liens and incumbrances prior to that of the mortgage which the property is ordered sold to satisfy, being for the sole benefit of the plaintiffs, the defendant, owner of the equity, cannot be heard to object to the confirmation of the sale because such liens and incumbrances were not deducted in making the appraisement. Craig v. Stevenson, 15 Neb., 362, lollowed.</p> <p>3. Notice of Judicial Sales: Publication. The statute providing for notice of sales of land upon execution or foreclosure does not require that the newspaper in which such notice is published shall have a general circulation in any particular city or portion of the county.</p> <p>4. Order of Sale: Notice to Defendant. It is néither fraudulent nor unfair for the plaintiff in a foreclosure case to proceed with all legal dispatch after the time of redemption has expired, nor is he required to give the defendant notice of the issuance of the order of sale. •</p> <p>5. Excessive Costs: Motion to Retax. If excessive costs have been taxed in the proceedings incident to the sale, the remedy is by a motion to retax costs, and not by objection to the confirmation of the sale.</p>

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

Heard below before Hopewell, J. The facts are stated in the opinion. The property in dispute constitutes a “fixture” in thé proper legal sense of that term.

<p>1. Supplemental Answer: Notice. A district court, on motion, may permit a defendant to file a supplemental answer, setting up facts material to his defense which have occurred subsequent to the filing of the original answer. Notice of the motion should be served on the adverse party; but the failure to give notice is not reversible error, where the application is presented in open court in the presence of the other party or his attorney of record, and the order is granted without any objection being urged that notice was not served.</p> <p>2. Judgment: Expiration of Lien: Effect of Execution. A judgment becomes dormant and ceases to be a lien on the real estate of the judgment debtor in five years from the date thereof, unless an execution is sued out on such judgment within said period. In case an execution is issued and returned in such time, it will continue the lien of the judgment for five years from the date of such execution.</p> <p>3. ■ — ——: -. The commencement of an action by a judgment creditor within five years from the date of his judgment to subject real estate of the defendant to the payment of the judgment, and the pendency of such action after such period, will not have the effect to prevent the judgment from becoming dormant or operate to prolong the lien of the judgment.</p> <p>4. Dormant Judgments: Liens. When a judgment becomes dormant, its lien is lost as against a mortgage executed by the judgment debtor and recorded during the continuance of the judgment lien.</p>

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

<p>1. Criminal Law: Delay in Trial: Discharge of Accused. A defendant in a criminal prosecution who has never been committed to jail, or otherwise detained in custody, is not entitled to be discharged, under the provisions of section 390 of the Criminal Code, on the ground that he has not been brought to trial before the end of the second term after the finding of the indictment or the filing of the information.</p> <p>2. -: -: -. The provision of section 391 of the Criminal Code, for the discharge of any person indicted who after having given bail shall not be brought to trial before the end of the third term of court held after the finding of such indictment, is held to exclude the term at which the indictment is found.</p> <p>3. Rape: Evidence: Instructions. In a prosecution under section 11 of the Criminal Code, for rape upon the daughter of the accused, fourleen years of age, an instruction that “the amount of struggle and resistance necessary to be shown is not the same in all cases. A strong, able-bodied woman could protect herself when a child could not; and a father could overcome and subdue the will of his child when a stranger could not,” is not objectionable on the ground that it gives undue prominence to the age of the prosecutrix and her relation to the accused.</p> <p>4. -: Coreobo ration op Prosecutrix. In a prosecution for rape it is not essential that the prosecutrix be corroborated by-other witnesses as to the particular acts which constitute the offense. It is sufficient if she is corroborated as to material facts and circumstances which tend to support her testimony as to the principal fact, provided the jury must besatisfied from a consideration of all of the evidence, beyond a reasonable doubt, of the guilt of the accused. (JPager v. State, 22 Neb., 332.)</p>

<p>1. Statute of Frauds. A party who has cared for and fed certain stock for another, the bill therefor, or a part of it, being unpaid, the stock, with some' other chattel property of his debtor, being in his possession under a verbal lien to secure the payment of the balance due on his account, such lien to be valid so long as such property shall remain in said creditor’s possession, who is induced by the direct promise of a third party, such third party claiming a prior lien on the live stock so held, by reason of a chattel mortgage, that said third party will pay the account so due said first party if he will release from his possession such stock and chattels, to so release and surrender possession of the property, and this action is an advantage or benefit, or forwards the interests, of the party making such promise, can maintain an action against such promisor, the promise not being within : the statute of frauds.</p> <p>2. The instructions given by the court on its own motion, and instructions requested by defendant in error and given, and instructions requested by plaintiff in error and refused examined, and held no error in either the giving or refusing.</p>

<p>1. Instructions. Where the principles embodied in instructions asked on behalf of one of the parties to an action have already been stated to the jury by the court, it is not prejudicial error to refuse the reiteration requested.</p> <p>2. An instruction abstractly correct as to propositions of law is properly refused when inapplicable to any state of facts in support of which evidence has been introduced.</p> <p>3. Witnesses: Limitation or Cross-Examination. While great latitude must of necessity be given in the cross-examination of witnesses charged with participation in fraudulent transactions which are the subject-matter of the defense pleaded, yet this latitude is subject to limitation in the sound judicial discretion of the trial judge, and unless it is made to appear in this court that such discretion has been exercised to the injury of the complaining party, the judgment will not be' reversed merely because of such limitation.</p>

Heard below before Wakeley, J. The facts are stated in the opinion. The affidavit did not conform to the statute. {Hays v. Mercier, 22 Neb., 661.) A joint lien cannot be had, when, as in this case, the houses are separate and distinct. The statute is not complied with by filing a joint, lien, and hence no lien attaches.

<p>Appeal from the district court of Douglas county Heard below before Wakeley, J.</p> <p>See opinion for authorities cited.</p>

<p>Taxation: Sale of Land Not Subject to Assessment: Recovery of Purchase Money from City. The law applicable to this case was settled by this court at this term in Pennoclcv. Douglas County, 39 Neb., 293,’ and on- the authority of that case the decree appealed from in this case is affirmed.</p>

<p>1. Municipal Corporations: Defective Streets: Repairs. The duty ordinarily resting upon a city to maintain its streets and sidewalks in a reasonably safe condition for travel in the ordinary mode is remitted during the time occupied in making repairs or improvements.</p> <p>2. -: -: -. But in such case the city is free from liability only for such obstructions or unsafe conditions as are reasonably necessary for the purpose of performing the work and such as are maintained only for the time reasonably required for making such improvements.</p> <p>3. -: -: -: Negligence. And where a street is rendered unsafe for travel in the ordinary modes by improvements in progress thereon the city must exercise reasonable care to protect the public from the consequences of such unsafe condition.</p> <p>4. -: -: Negligence: Notice: Liability for Injuries. While a city is liable only for injuries resulting from defects brought to its notice or' existing under such circumstances that ignorance of the defect amounts in itself to negligence, still, when the defect is caused by the direct act, order, or authority of the city, notice is necessarily implied.</p> <p>5. -: -: -: Instructions. In an action for injuries sustained from the defective condition of a street caused by grading operations preparatory to paving, the court instructed the jury that it was the duty of the city to use reasonable care in keeping the sidewalk in a reasonably safe condition, and if the city failed so to do and maintained a dangerous condition for a considerable time it would be liable. Held, Erroneous for not stating the rule fixing the city’s duty and. liability as defined in the first, second, and third of the above paragraphs,- and in charging the city for an unsafe condition maintained for a considerable time instead of an unreasonable time.</p> <p>'6. Review. The evidence examined, and held to conform to the allegations of the petition and to be sufficient to sustain the verdict.</p>

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

<p>Appeal from the district court of Douglas county. Heard below before Wake ley, J.</p> <p>The opinion contains a statement of the case.</p> <p>The rule that a purchaser may, by order, be compelled to comply with the terms of his bid applies only to proceedings involving the general equity jurisdiction, and do not apply to an administrator’s sale. (Eorer, Judicial Sales, sec. 161.)</p> <p>The court ought not, upon the facts proved, to have made the order, even had it the power. The rule caveat emptor has no application until after the sale is closed by delivery of deed and payment of purchase money. (Ormsby v. Perry, 6 Bush [Ky.], 553; Graham v. Bleakie, 2 Daly [N. Y.], 55.)</p> <p>A sale by an administrator under an order of the court, of lands of a decedent, is a judicial sale. The district court had jurisdiction to make and enforce the order appealed from. (Rorer, Judicial Sales, sec. 148; Comp. Stats. Neb., ch. 23, secs. 67-122; HaUeak v. Guy, 9 Cal., 181, 195; Vandever v. Baker, 13 Pa. St., 121, 126; Grignon’s Lessee v. Astor, 2 How. [U. S.], 319; Jones v. Head, 1 La. Ann., 200; Lynch v. Baxter, 4 Tex., 437; Woi'thington, Adm’r, v. 3fa Roberts, 9 Ala., 300; Phillips v. Hawley, 1. Neb., 320, 321.)</p> <p>A purchaser at a judicial sale may be attached or committed as for contempt for a disobedience of an order to pay into court the purchase money. (Lansdown v. Elderton, 14 Yes. [Eng.], 512; Goodwin v. Simonson, 74 N. Y., 133; Brasher v. Cortland, 2 Johns. Ch. [N. Y.], 505; Coulter v. Herrod, 27 Miss., 685; Seaman v. Hicks, 8 Paige Ch. [N. Y.], 655; Phillips v. Hawley, 1 Neb., .320; Rorer, Judicial Sales, sec. 149.)</p> <p>The order was properly made on the facts proved. The order of the court directing sale subject to the incumbrances was in conformity to the statute, and appellant was chargeable with notice by the terms of the order, and the requirements of the statute. (Comp. Stats. Neb., eh. 23, sec. 99.)</p>

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

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

<p>1. Pleading: Defense of Usury. The Code of Civil Procedure provides that a pleader shall state facts and not conclusions; and it is essential to a plea of usury that it state with whom the agreement alleged to be- usurious was made, when made, where made, and the facts which it is alleged make the transaction usurious. It must also state the amount of interest agreed to be paid, taken, or reserved, or that was paid, taken, or reserved, in the transaction.</p> <p>2. -. This was a' suit on a contract. The answer of the defendant, set out in the opinion, held, not to state facts sufficient ' to constitute the defense of usury.</p>

<p>Appeal from the district court of York county. Heard below before Wheeler, J.</p> <p>The opinion contains a statement of the case.</p> <p>A purchaser who has actual notice of the claim of a third party in the property purchases subject to such right, although the instrument under which the third party claims is not of record. (Railsbaek v. Patton, 34 Neb., 490; Russell ii. Longmoor) 29 Neb., 209; Patríele v. Paulson, 34 Neb., 416.)</p> <p>If one party has a lien on or interest in two funds for a debt, and another party has a lien on or interest in one only of the funds for another debt, the latter has a right in equity to compel the former to resort to the other fund, in the first instance, for satisfaction, if that course is necessary for the satisfaction of both claims. (Story, Eq. Juris., sec. 633; Ingalls v. Morgan, ION. Y., 178; Kurdig v. Landis, 135 Pa. St., 612; Fassett v. Muloele, 5 Col., 466.)</p> <p>The clear meaning of section 1796, Cobbey’s Statutes, is, that an unrecorded mortgage is void as to creditors absolutely without qualification, and that it is void as to subsequent purchasers and mortgagees in good faith; in other words, the qualification “in good faith” applies to “subsequent purchasers and mortgagees” alone, and not to creditors. This is the construction which is placed upon identical statutes in other states. (Jones, Chattel Mortgages [3d ed.], sec. 318; Farmers Loan & Trust Co. v. Hendrielcson, 25 Barb. [N. Y.], 484; Tyler v. Strang, 21 Barb. [N. Y.], 198; Tiffany v. Warren, 37 Barb. [N Y.], 571; Sayre v. Hewes, 32 N. J. Eq., 652; Houle v. Condon, 40 O. St., 569; Brothers v. Mundell, 60 Tex., 240; Pyle v. Warren, 2 Neb., 241; Ransom v. Sehmela, 13 Neb., 76; Earle v. Bureh, 21 Neb., 702.)</p> <p>If a party has two mortgages to secure a debt, both of them due, and there is any advantage which will accrue to him by foreclosing either one first, the law allows him to exercise his option as to the order of foreclosure. (Swift v. Redhead, 76 111., 374; Cutler v. Ammon, 21 N. W. Rep. [Ia.], 604; Clarice v. Banerofi, 13 la., 320.)</p>

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

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

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

Error from the district court of Polk county. Tried below before Miller, J. The extent of the homestead is to be determined by the value of the land, and not by the value of the claimant’s interest therein. (Yates v. MoKibben, 66 la., 357; Raber v. Ound, 110 111., 589.) cited: Thompson, Homestead & Exemption, secs. 656-663; Boone, Law of Mortgages, p. 319; Quinn’s Appeal, 86 Pa. St., 447; Hill v. Johnston, 29 Pa.

<p>Error from the district court of Polk county. Tried below beforé Bates, J.</p>

<p>1. Mortgages: Mechanics’ Liens: Priority: Privity or Contract. Where a party sells real estate and takes a mortgage for part of the purchase price, and postpones the lien of the mortgage to that of another mortgage given to obtain a loan, at the request of the purchaser, in consideration of his promise to use the money derived from the loan in making improvements on the premises, such promise being included and expressed in the purchase-money mortgage, held,'that this did not constitute the mortgagor the agent of the mortgagee in making the contract for the erection of the building; that there was no privity of contract between the mortgagee and the laborers on, or furnishers of material for, the building; and that mortgagee was not a promoter of the building scheme, or operations; and that the mortgage lien would not be subordinated to the liens for labor done and material furnished, — the commencement of such labor and furnishing material being subsequent to the recording of the mortgage.</p> <p>2. Mechanics’ Liens: Interest to Which Lien Attaches. “A person commencing to furnish material for, or commencing to labor on, an improvement on real estate must, at the time, take notice of the interest and title in the premises of the person with whom he contracted, as shown by the public records, as his lien for labor or material, aside from the improvement itself, attaches only to such interest.” (Henry <& Coatsworth Co. ». Fisherdiclc, 37 Neb., 207.) .</p> <p>3. -: Mortgages: Priority. Where a party receiving a mortgage for a part of the purchase price of real estate takes it subject to a mortgage given for a loan, the consideration for' making the mortgage subject to the loan mortgage being the promise on the part of the mortgagor to use the loan so obtained for putting improvements on the premises, and the mortgagor pays the mortgagee a portion of the loan money on the purchase price as a cash payment, it being shown that the mortgagee had no knowledge that this was done, the mere fact of receiving such money will not entitle the mechanics’ lien-holders who commenced to perform work and furnish material for the buildings erected on the premises subsequent to the time of recording the purchase-money mortgage, in a suit for foreclosure of the mortgage and the liens, to a decree giving, the liens priority over the mortgage, or to have the said mortgage lien postponed or made subordinate to the mechanics’ liens in the amount of the sum so paid to the mortgagee.</p> <p>4. -: -: -. Where a party, purchaser of real estate, gives a mortgage to the vendor of such real estate to secure the balance of purchase price unpaid, and such mortgagee, in consideration of improvements being made and buildings erected on said real estate, allows said mortgage to become subsequent in priority to mortgages made to secure a loan for the purpose of erecting such improvements, said mortgage thereby made subsequent containing a clause whereby the mortgagor agrees to use all money procured by such loan mortgages in the erection of such buildings, and fails to do so, held, that the lien of the mortgage of said vendor should not be subordinated to the liens of the mechanics and material-men who commenced to perform labor and furnish material subsequent to the recording of said mortgage.</p> <p>5. -: -: -. A mortgage on real property in this state does not convey any title or vest any estate either before or after conditions broken, but merely creates a lien upon the mortgaged property; and the mortgagee’s interest in the property mortgaged is not such an interest as constitutes him an owner within the meaning of the mechanics’ lien law, and as a general rule his mortgage lien will not he subordinated to mechanics’ liens predicated upon claims for labor and material, the performance and furnishing of which were commenced on a date subsequent to the record of the mortgage, pursuant to a contract with the mortgagor.</p>

<p>1. Rulings on Admission of Evidence: Review. The ruling of the trial court, sustaining objections to questions and answers in a deposition offered to be read at the trial, and ex-eluding the testimony from the jury, examined, and held correct, and no error in such action.</p> <p>2. Erroneous Admission of Evidence: Instructions. Where erroneous evidence is admitted by a court, and in the instructions to the j ury such evidence is withdrawn by the court from their considei ation, held, that such withdrawal by the court cures the error committed in the admission of the evidence.</p> <p>3. Instructions. The refusal of a trial court to give to the jury instructions asked by parties to the case, when instructions already given by the court on its own motion embody, though in different phraseology, the substance of instructions asked, held, no error in such refusal.</p> <p>4. Review. Objections to instructions to a trial jury will not be noticed by the supreme court,- unless the attention of the trial court is first called to them by the proper exceptions taken at the time the instructions were given. (Warrick v. Bounds, 17 Neb., 412.)</p> <p>5. Sufficiency of Evidence: Review. Questions of fact are to be decided by the trial jury, and a verdict will not be set aside on the ground of a want of sufficient evidence to support it, unless the want is so great as to show that the verdict is manifestly wrong. [Warrich v. Bounds, 17 Neb., 412; Sycamore Marsh Sarvester Co. v. Qrmdrad, 16 Neb., 529.)</p>

<p>Taxes: Injunction to Restrain Collection. The plaintiff filed a petition praying for an injunction to restrain a county and its officers from the forcible collection of a tax against personal property, averring, as grounds therefor, that the tax was illegal or unauthorized.' The evidence discloses that he listed the property for taxation, the schedule on its tace being a list of his individual property, signed by him and sworn to individually, and not as manager for a company, for whom he alleges in •his bill for injunction that he listed the property, and to whom he stated it belonged, the taxes being charged to him in the tax lists as transcribed from the assessor’s book. Held, That this was not such a state of facts as would entitle him to have the collection of the taxes enjoined or restrained as illegal or unauthorized, as such entry or charge on the tax list was the result or consequence of his own voluntary act.</p>

<p>Taxation: Property of Religious Societies: Exemption. The exemption by section 2, article 1, chapter 77, Compiled Statutes, of “property which may be used exclusively for religious purposes ” does not extend to property owned by a religious society separate and distinct from that on which is situated its church edifice, the mere intention in the future to erect such an edifice on said property not so occupied, and the accumulation of the present rents arising therefrom for that purpose, not being sufficient to bring the property within the purview of the statute referred to.</p>

<p>1. The damages recoverable for the refusal of a bank to pay a check, drawn upon it by one who has funds with the bank wherewith to make such payment, should not exceed such amount as reasonably and fairly in the natural course of things would result from such refusal.</p> <p>2. Damages. General damages are such as the jury may give when the judge cannot point out any measure by which they are to be ascertained except the opinion and judgment of a reasonable man. Special damages are such as by competent evidence are directly traceable to defendant’s failure to discharge his contract obligations, or such duties as are imposed upon him by law.</p> <p>3. Introduction, of Improper Evidence: Effect : Review. When a party litigant has, by an evasion of the adverse ruling of the court, intentionally and willfully introduced evidence of facts improper for consideration by the jury, it must be presumed that such improper evidence has had a prej udicial effect, und the verdict should accordingly be set aside.</p>

The plaintiff below was guilty of contributory negligence. There was no evidence to show any failure on the part of the company to do its whole duty. There was therefore no question of negligence on the part of the company to submit to the jury, and the motion to direct a verdict for defendant below should have been sustained.

<p>1. Review: Conflicting Evidence. Where there is a mere conflict in the evidence and the verdict is not clearly unsupported thereby, the judgment of the trial court will not be reversed merely because in this court it may appear as an original question that the preponderance of proof was with the party other than the one in whose favor the verdict was returned.</p> <p>2. Personal Injuries: Damages: Instructions. In an action to recover damages for injuries charged to have been inflicted by a street railway company, an instruction, designed to embrace all elements essential to a recovery, sufficiently met requirements as to the absence of contributory negligence by requiring the use of “ordinary care and diligence” by plaintiff, — the term “ordinary care and diligence” being subsequently by instructions fully defined.</p> <p>3. negligence: Question for Jury: TriAl. The jury alone must determine the existence of negligence, contributory or otherwise, as a question of fact, subject to the judgment of the court as to whether or not sufficient proof has been made to justify its consideration, and after the rendition of a verdict, whether or not it is contrary to or unsustained by the evidence. It is not the duty of the trial court to instruct what inferences of fact must or must not be deduced from proofs offered to establish the existence or absence of negligence.</p>

Heard below before Wakeley, J. The opinion contains a statement of the case. The appellant contends that she has a right to show by the tax list that the delinquent taxes for the year 1885 were not carried forward upon the tax list of 1886, and in consequence thereof that the appellant had no notice the taxes for the year 1885 were delinquent.

Error from the district court of Douglas county. Tried below before Ferguson, J. Where a witness is beyond the jurisdiction of the court, his testimony given at a former trial between the same parties, with reference to the same subject-matter, is admissible in evidence.

<p>1. Usury: Mortgage Foreclosure: Notes: Consideration. W. & Co., a private bank, lent money to O. upon an agreement for the payment of usury. The business was conducted, between O. and W., one of the partners in the firm of W. & Co. A note was made to the order of W., and a conveyance of land, absolute in form, made to W. to secure the loan. The note was renewed at frequent intervals, usurious interest being paid upon each renewal. Some months after the loan was made the E. National Bank was incorporated and succeeded to the business and assets of W. & Co., W. becoming its cashier. The note continued to be renewed to the order of W. for some years, but finally was renewed to the order of the E. National Bank. O., at the inception of the transaction, did no. know that the money lent to him was that of W. & Co., and there was no evidence to show that at any particular time he learned of that fact or of the fact that renewal notes belonged to the national bank until the first note was made directly to that bank. Held, That in an action by the national bank to foreclose the mortgage, O. was entitled to have all the payments of interest applied as payments upon the principal, and that as these payments, at the time when the first note was made directly to the bank, amounted to more than the original debt, those notes were without consideration and the bank, not being a bona fide holder, could not recover.</p> <p>2. National Banks: Usury. It seems that the remedies given by the federal statutes for usury exacted by national banks are exclusive; but that principle does not prevent a debtor, under the circumstances stated in the foregoing paragraph, from availing himself of any defenses to which he is entitled under the state law, and which accrued before he was aware that the debt was owing to the bank.</p> <p>3. Usury: Kenewals of Loan: Defense. Where a loan is originally usurious, the defense of usury applies to all renewals, and when action is brought upon any note, no matter how remote, the court will apply all payments of interest upon such usurious loan as payments pro tanto of the principal.</p> <p>4. -: -: Statute of Limitations. Such application is made not by way-of set-off or counter-claim, but by way of payment, and the statute of limitations does not bar such a defense.</p> <p>5.--: Judgment Under Federal Statutes: Payments of Usury: Application Upon Principal: Estoppel. After the notes came to be made directly to the bank, O. brought suit against the bank and recovered judgment under the federal statutes for payments of usury made after the bank became the ostensible creditor. Held,, That that action did not estop O. from pleading usury in the earlier transactions with W. and having those payments applied as payments upon the principal.</p> <p>6. Estoppel. Nor was the making of renewal notes directly to the bank and the payment of interest thereon such a recognition of the existence of an indebtedness as would estop O. from pleading the prior usury and payment by reason thereof.</p>

<p>1. Review: Findings of Trial Court. In cases tried to the court without a jury the finding on questions of fact is entitled to the same weight and the same presumption of correctness as a verdict of a jury. The rule is the same whether the case is brought to this court on error or appeal, and applies to all classes of actions.</p> <p>2. Mechanics’ Liens: Vendor and Tendee. Where the owner of land completes negotiations for the sale thereof and the vendee takes possession without the consent of the owner and commences the erection of a building, but fails to make the payment of the purchase money, which by the terms of the sale was to be made upon the delivery of the conveyance, and the vendor refuses to make a conveyance or complete the contract without such payment, no agreement in writing having been executed, the vendor is not charged with liens for labor and material used in constructing the building.</p> <p>3.-: -: Estoppel. The vendor, in such a case, when he learned that the building was in progress, warned those engaged in its erection that they were trespassers and that the person with whom they had contracted had no rights in the property, but subsequently visited the premises and complained of the manner in which some of the work was being performed. The circumstances did not justify an inference that tte mechanics had relied upon his later acts or undertaken or continued their work on the faith thereof. Held, That he was not thereby estopped from asserting his title as against the mechanics’ liens.</p> <p>4. MortgagesCancellation of Release: Mechanics’ Liens. A loan and trust company had contracted to lend the vendee money secured by mortgage upon the premises. The mortgage had been delivered and by the trust company recorded, but no money advanced. The agreement was that the money should not be advanced until the vendee procured title and had expended a certain sum in constructing the buildings, and that the vendee should furnish the trust company a bond conditioned that the buildings should cost a stipulated sum. The vendor refused to convey because of the vendee’s failure to pay the purchase money, and the vendee did not furnish to the trust company such a bond as its agreement required. The trust company then executed releases of its mortgage. Held, That persons claiming liens growing out of the construction of the buildings had no equity by which they could require a conveyance to be made, the releases of the mortgage canceled and the money advanced thereon and applied to the payment of their claims.</p>

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

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

Error from the district court of Fillmore county. Tried below before Morris, J. The facts are stated in the opinion. The motion of defendant to dismiss the case for want of a proper party plaintiff was properly overruled by the justice.

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

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

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

Eekok to the district court for Lancaster county. Tried below before Tibbets, J. A communication is not privileged unless the person to whom it is made is acting for the time being in the character of a legal adviser of the person who makes it. The communication must also be made for the purpose of obtaining professional advice or aid in the matter to which the communication relates.

Error from the district court of Saunders county. Tried below before Bates, J. The facts are stated in the opinion. Au alteration of a promissory note in any material part renders it invalid as against the party not consenting thereto, even in the hands of an innocent purchaser. (Brown v. Straw, 6 Neb., 536; State Savings Bank of St. Joseph v. Shaffer, 9 Neb., 1.) The alteration of the note was a material alteration.

<p>1. Partnership. The evidence in the case examined, and held sufficient to sustain the verdict.</p> <p>2. Instructions: Harmlicss Errob. Objection to an instruction given by the court on its own motion considered, and held, when taken in connection with an instruction given at request of defendant, to so present the issues in the case that although such instruction may have been defective and indefinite its giving was not prejudicial to the rights of defendant.</p> <p>3. Form of Verdict: Judgment: Trial. Objections to the verdict of the jury in this case considered, and held, that the verdict was not so deficient or erroneous, in either form or substance, as to call for a reversal of the case, and that it was proper and correct for the jury in the case, it being one against the individual members of a partnership on an account for articles of merchandise furnished to the firm, to return a verdict against one defendant or member of the firm alone, and that the court did not err in rendering judgment on such verdict.</p> <p>4. Verdict: Objections: Review. Objections to the form and terms of a verdict should be made in the court below at the time of rendition, in order to be available on error to this court.</p> <p>5. Partnership: Action on Account: Judgment Against One Member. In an action against the individual members of a partnership on an account for merchandise purporting to have been furnished to the firm, if the testimony shows that the articles were furnished to one of the persons composing such firm, that the debt sued for was the individual debt of such member or person, a verdict may be returned against such member, and Judgment rendered thereon against him alone.</p>

<p>1. Contracts: Restraint of Trade. Where real estate, consisting of certain lots and the buildings thereon, is sold, and in the granting portion of the deed conveying the same a clause is inserted stating that the property is not to be used for hotel purposes for two years, held, that such restriction as to use of the property, being a limited one, was valid and not au unreasonable restraint of trade in view of the facts developed by the pleadings (the case having been decided upon the pleadings alone), and that such agreement was not within or covered by the prohibitions or provisions of chapter 91a, entitled “Trusts,” Compiled Statutes, 1893.</p> <p>2. Pleading: Allegations of Reply. A plaintiff, in replying to new matter set up in an answer, may allege new matter, not inconsistent with the petition, constituting a defense to such allegations contained in the answer. (Cobbey v. Knapp, 23 Neb., 579.)</p> <p>3. Damages for Breach, of Contract. Where a breach, by defendant, of an actually existing contract between plaintiff and defendant is proven, plaintiff is entitled to at least nominal damages.</p> <p>4. Judgment Upon Pleadings: Review. The pleadings in the case examined, and held, that the court erred in sustaining the motion of defendants for judgment upon the pleadings and in rendering judgment for defendants thereon.</p>

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

<p>1. Estrepement: Evidence: Injunction. An action against one in possession of real estate to restrain alleged commissions of waste thereon was properly dismissed when the court found from the proofs that no waste had been contemplated or committed by either of the defendants.</p> <p>2. Action to Restrain Commission of Waste: Lien on Nursery Stock: Decree. Where one has instituted proceedings to prevent the commission of waste upon real property and for general equitable relief, and the defendant in such suit has pleaded and proved his rightful possession of certain nursery-stock growing on the premises to secure part of the purchase price of said stock remaining unpaid, held, that the court, in conformity with the prayer of said defendant’s answer, properly decreed that such nursery stock should be sold on execution to pay the amount found remaining due.</p>

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

<p>Original application for mcmdamus.</p> <p>cited: State v. Gandy, 12 Neb., 232; State v. Scott, 15 Neb., 147; State v. Leidtke, 12 Neb., 171; State v. Roderick, 23 Neb., 505; Everts District Township of Rose Grove, 77 la., 37; Capital Bank of St. Paul v. School District No. 85, 42 N. W. Rep. [Dak.], 774; Robbins v. School District, 10 Minn., 268; Maher v. State, 32 Neb., 369.</p> <p>cited: School District v. Stough, 4 Neb., 357; Nevil v. Clifford, 24 N. W. Rep! [Wis.], 65; Gehling v. School District, 10 Neb., 239.</p>

Error from the district court of Dodge county. Tried below before Marshall, J. contending that upon the ground of conspiracy the right of plaintiff to recover is complete and unavoidable, cited: Muetze v. Tuteur, 46 N. W. Rep. [Wis.], 124; Cooley, Torts, 421; Albrecht v. Treitschke, 17 Neb., 205; Carew v. Rutherford, 106 Mass., 1; Gregory v. Brunswick, 6 Man. & Gr. [Eng.], 205; Mqpstrick v. Ramge, 9 Neb., 393; Swan v. Saddlemire, 8 Wend. [N. Y.], 676. contending that the…

Heard below before Hopewell, J. The contract was not assignable so as to enable the assignee to require the continuation of the service without the consent of the defendant, and the attempted assignment authorized the defendant to treat the contract as at an end. (jRobson v. Drummond, 2 Barn. & Ad. [Eng.], 303; Pomeroy, Remedies & Remedial Rights, secs. 146, 152; Humble v. Hunter, 12 Q,.

Heard below before Bates, J. In cases of contract for the payment of a sum of money the payment of a less sum will not be a good satisfaction unless it was paid before due, or upon some other new and valid consideration.

Error from the district court of Douglas county. Tried below before Ferguson, J. The facts appear in the opinion. It is negligence to leap from a moving street car. (Hagan v. Philadelphia & G. F. R. Co., 15 Phila. [Pa.], 278.) If passenger signaled the car to stop and the car immediately began to slow down speed, and the passenger, without waiting for the car to stop, did step from the, ear while in motion and was injured, he cannot recover.

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

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

<p>Actions Against Corporations: Venue. Following Fremont Butter & Egg fío. v. Snyder, 39 Neb., 632, the judgment in this case is affirmed.</p>

<p>Adverse Possession. When a person has been in the.actual, visible, exclusive, and uninterrupted possession of a portion of a street in a city, under a claim of right, for ten years, the title thereto vests absolutely in such occupant. Mtyer v. City of Lincoln, 33 Neb., 566, followed.</p>

<p>Unincorporated Associations: Liability of Members. One is not liable for the debts of a voluntary unincorporated association incurred by it at a time when he was not a member thereof, unless by express contract, based on a good consideration, which must be alleged and proved.</p>

<p>1. Homestead: Abandonment. Two things must concur to show an abandonment of a homestead, viz., an intention to abandon and actual abandonment. Eclcman v. Scott, 34 Neb., 817, adhered to.</p> <p>2. -: -. The rule is, that to establish abandonment of a homestead the evidence must show, not only that the party removed from the homestead, but that he did so with the intention of not returning, or after such removal he formed the intention of remaining away.</p> <p>3. -: -: Creditor’s Bill: Fraudulent Conveyances. A man and wife removed from their farm, owned by the wife, to a neighboring town, where they lived for some years in a rented house and in which the man pursued the business of shoe-making. They left a son in charge of the farm and the greater part of their household goods, and all their stock and farming implements also remained on the farm. The wife divided her time between her place of abode in town and the farm, keeping general supervision of the latter and doing there the laundry work and part of the cooking for herself and husband. The man died and the widow sold the farm. In a suit by her creditors to set aside her conveyance as fraudulent, held that, as the evidence did not show that the man and wife left the farm with the intention of not returning, their removal to and residence in town did not work an abandonment of the homestead.</p> <p>4. -: -: Intention. Removing from a homestead and residing temporarily elsewhere for the purpose of business, pleas- ■ ure, or health, will not work an abandonment of a homestead, unless coupled with such removal is the intention not to return, or after removal the intention is formed of remaining away.</p> <p>5. Fraudulent Conveyances: Notice to Purchaser. To avoid a sale upon the ground that it is fraudulent as to creditors, the purchaser must have notice of such facts tending to show such fraudulent purpose as would put a person of ordinary prudence on inquiry. (Temple v. Smith, 13 Neb., 513, adhered to.)</p> <p>6. -: Cancellation op Conveyance: Validity op Decree Without Findings. In a suit by a creditor to set aside a conveyance of real estate on the ground that the same was made to defraud him, to the knowledge of the defendant, the court, without either a general or a special finding against such defendant; entered a decree annulling the conveyance, as prayed. Held, That it was erroneous to pronounce a decree annulling the defendant’s title without either a general or a special finding against him. (Sec. 297, Code Civil Procedure.) Foster v. Devinney, 28 Neb., 416, adhered to.</p>

<p>1. Intoxicating Liquors: License: Constitutional Law. The proviso in section 1, chapter 50, Compiled Statutes, 1893, that “ Provided, Such [county] hoard shall not have power to issue any license for the sale of any liquors in any city or incorporated village, or within two miles of the same,” is not obnoxious to any provision of the constitution, because the inhabitants living within two miles of the corporate limits of the cities and villages of the state, situated in counties not having 150.000 inhabitants, are, by such proviso, deprived of the privilege of having the sale of the liquors licensed within their territory. Pleulerv. Stale, 11 Neb., 547, reaffirmed.</p> <p>2. -: License Law. The Legislature, in the exercise of the police power of the state, may not only control the license and sale of intoxicating liquor therein, but may entirely prohibit such license and sale.</p> <p>3. -: -: Special Legislation. The proviso in said section 1 in said chapter 50, that “Provided, In counties having 150.000 inhabitants the county commissioners may also issue licenses within two miles of any city in said county,” is not obnoxious to section 15 of article 3 of the constitution as assuming to “regulate county and township offices;” nor is said proviso obnoxious to said constitutional provision as class or special legislation.</p> <p>4. Special Legislation: Constitutional Law. An act of the legislature will not be declared special legislation, within the meaning of the constitution, solely because at the time of its enactment there was only one county in the state to which its provisions were applicable. If the law is general in its terms, and restricted by its terms to no particular locality, and operates equally upon all of a group of obj ects, it is not a special law. MeGlay v. City of Lincoln, 32 Neb., 412, followed.</p> <p>5. Violation of License Law: Defense. To an indictment for selling liquors in this state without a license, it is no defense that such sale was made at a time or place or under circumstances which rendered the procurement of a license impossible.</p>

<p>Intoxicating Liquors: License: Constitutional Law. On the authority of Hunzinger v. Stale, 39 Neb., 653, the judgment in this case is affirmed.</p>

<p>Intoxicating Liquors: License: Constitutional Law. On the authority of Hunzinger v. State, 39 Neb., 653, this ease is affirmed.</p>

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

Error from the district court of Lancaster county. Tried below before Hall, J. The facts are stated by the commissioner. Denial of plaintiff’s request to withdraw a juror was such an abuse of discretion as entitles plaintiff to a new trial. (Maxwell, Pleading & Practice, 429: People v. Judges, 8 Cow. [N. Y.], 126.) Defendant was not qualified as an expert to testify to the handwriting of Mrs. McCurday. (Rogers v. Ritter, 12 Wall. [ü.

<p>1. Constitutional Law: Wages of Laborers. The act to provide for the better protection of the earnings of laborers, servants, and other employes of corporations, firms, or individuals engaged in interstate business, Laws of 1889, chapter 25, is not in conflict with the constitution of Nebraska, either as being broader than its title or as being prohibited class legislation.</p> <p>2. --: -: Damages. Nor does the act seek to impose a penalty for the benefit of an individual. The recovery provided for in the act, of the debt, costs, expenses, and attorney’s fee, is simply a recovery of compensatory damages and not a penalty.</p> <p>3. -. Whether the act is valid, in so far as it makes its violation a crime, is not decided; that portion of the act not being so connected with the rest as to affect the validity of the whole act.</p> <p>4. - Nor is the act in conflict with section 1 of article 4 of the constitution of the United States, requiring that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.</p> <p>5. Garnishment of Wages in Other States: Foreign Corporations. A foreign corporation, having a place of business in Nebraska, which institutes, in another state, attachment proceedings and seizes the earnings of a citizen of Nebraska, exempt under the laws of Nebraska, is subject to the operation of the act; the contract out of which the proceedings arose having been made in Nebraska and being here performable.</p> <p>6. ■-: -: Exemptions: Conflict of Laws. While under the laws and decisions of Iowa a judgment in a proceeding by foreign attachment, whereby earnings of the defendant, a resident of Nebraska, earned in Nebraska and payable there, are seized and applied to the payment of the defendant’s debt, must be treated as within the jurisdiction of the Iowa courts, still the situs of said earnings, for the purpose of determining the right to exemption, is Nebraska. Mason v. Beebee, 44 Fed. Rep., 556, followed.</p>

Error from the district court of Dodge county. Tried below before Marshall, J. The opinion by the chief justice contains a statement of the case. The legislature has not invested the city It is not within the power of the legislature to delegate to one municipal corporation the power to tax a business which is not carried on within the limits of such corporation.

<p>Error from the district court of Saline county. Tried below before Hastings, J.</p> <p>The Carlisle tables of expectancy were not competent evidence.) Shippen’s Appeal, 2 W. N. C. [Pa.], 468; Den-man v. Johnston, 48 N. W. Rep. [Mich.], 567; Sellars v. Foster, 27 Neb., 126; Milton v. State, 6 Neb., 144; Ballard v. State, 19 Neb., 609.)</p> <p>There can be no recovery for alleged services of physicians and nurses, because there was no evidence of the reasonable and fair value thereof. (Meredith v. Kennard, 1 Neb., 319; Neihardt v. Kilmer, 12 Neb., 38; Republican V. R. Co. v. Fink, 18 Neb., 92; Ballard v. State, 19 Neb., 619; Stoughv. Stefani, 19 Neb., 471; City of Lincoln v. Holmes, 20 Neb., 47 ; Rosewater v. Hoffman, 24 Neb., 222; Mills v. Saunders, 4 Neb., 194; Atchison & N. R. Go. v. Baty, 6 Neb., 37.)</p> <p>contending that the Carlisle tables of expectancy were properly admitted in evidence, cited: Oity of Lincoln v. Smith, 28 Neb., 762.</p>

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

<p>Error from the district court of Saline county. Tried below before Morris, J.</p> <p>cited: Klosterman v. Olcott, 27 Neb., 685; Sandwich Mfg. Co. v. Shiley, 15 Neb., Ill; McPherson v. Wiswell, 19 Neb., 117; Grim v. Robinson, 31 Neb., 542; Uhl v. Robison, 8 Neb., 277.</p>

<p>1. Vendor and Vendee:' Right op Occupant: Notice. A person buying real property in the actual possession and occupancy of another is charged with notice of any right, title, or interest which such occupant has in such property.</p> <p>2. -: Quitclaim Deeds: Bona Fide Purchaser. One who holds real estate by virtue of a quitclaim deed from his immediate grantor, whether a purchaser or not, is not a Iona fide purchaser in respect to outstanding and adverse equities and interests against his grantor shown by the record, or which are discoverable by the exercise of reasonable diligence in making proper examination and inquiry.</p> <p>3. Quitclaim Deeds. One who purchases real estate and takes, a quitclaim deed therefor, takes only the interest his grantor has in the property at the time of such conveyance. Pleasants v. Blodgett, 32 Neb., 427, followed and adhered to.</p> <p>4. Vendor and Vendee: Record oe Mortgage. The existence of record of a mortgage on real estate is of itself sufficient to put an intending purchaser of the property on inquiry as to the interest of such mortgagor in such real estate.</p> <p>5. Statute of Limitations. In an action to quiet title the statute of limitations does not begin to run in favor of the defendant until some assertion of ownership or claim to the premises is made by him.</p>

<p>Original application for mandamus.</p> <p>cited: State v. Smith, 11 Wis., 65; People v. Bennett, 54 Barb. [N. Y.], 480; Atkins v. Disintegrating Co., 18 Wall. [U. S.], 301; Taylor v. Taylor, 10 Minn. 107; Bourland v. Hildreth, 26 Cal., 182; Kennedy v. Gibson, 8 Wall. [U. S.], 498; Donohue v. Ladd, 31 Minn., 244; Big Black Creek Improvement Co. v. Commonwealth, 94 Pa. St., 455; Follmer v. Nuckolls County, 6 Neb., 204; People v. Commissioners of the III. & M. Canal, 3 Scam. [111.], 153; Mayor of Jeffersonville v. Weems, 5 Ind., 547; Commissioners of La Grange County v. Cutler, 6 Ind., 354; Stayton v. Hulings, 7 Ind., 144; Hedrick v. Kramer, 43 Ind., 362; State v. Forkner, 70 Ind., 241; Bell v. Davis, 75 Ind., 314; State v. Canton, 43 Mo., 48; People v. Lacombe, 99 N. Y., 43; People v. Commissioners of Taxes of New York City, 95 N. Y., 558; Burch v. Newbury, 10 N. Y., 389; Oswego Starch Factory v. Dolloway, 21 N. Y., 461; Donaldson v. Wood,.22 Wend. [N. Y.], 397; TTdiervliet Turnpike Co. v. McKean, 6 Hill [N. Y.], 619; Commonwealth v. Kimball, 24 Pick. [Mass.], 370.</p> <p>cited: Kemerer v. State, 7 Neb., 130; People v. Yeates,.40 111, 126; Merrill, Mandamus, sec. 291; Smails v. White, 4 Neb., 353; In re House. Roll No. 284, 31 Neb., 505; Sovereign 'v. State, 7 Neb., 412.</p>

<p>1. Vendor and Vendee: Misrepresentations: Deceit. Ordinarily, a mere misrepresentation of the value of real estate which is the subject-matter of the contract is not actionable, although falsely and fraudulently made by the seller and relied upon by the buyer.</p> <p>2. -: -: Rescission op Sale. The rule is otherwise where the purchaser resides a considerable distance from the location of the land, is ignorant of its value, and is prevented from examining the property or from making inquiries as to its condition and value by trick or fraud of the vendor.</p>

Tried below before Allen, J. • The time of imprisonment must be limited in the judgment and set forth in the commitment upon which the prisoner is held in custody; otherwise the judgment and commitment, being indefinite, are void. (Maxwell, Pleading & Practice, 753; State v. Prince, 8 So. Rep. [La,], 591; Howard v. People, 3 Mich., 210; Lowrey v. Hogue, 24 Pac.

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

<p>Guardian and Ward. After the death of his ward, a guardian cannot commence or maintain an action for the collection of a debt due such ward.</p>

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

<p>1. Pleading: Joinder of New Parties Defendant: Discretion of Trial Court. The discretion of the district court in permitting the joinder of new parties defendant will not be reviewed unless prejudicial error is shown to have resulted from the manner in which such discretion has been exercised.</p> <p>2. Taxation of Costs: Review. An alleged improper taxation of costs cannot be presented in this court where no motion to retax the same has been made in the trial court. Following Meal v. Honey, 39 Neb., 516; Bates v. Diamond Crystal Salt Co.,36 Neb., 904.</p>

<p>Failure to Obtain Buling Upon Motion for New Trial: Review. This court will not review, upon petition in error, alleged errors occurring during the trial of a cause in the district court, unless a motion for a new trial was made in the trial court and a ruling obtained thereon. Following Jones v. Hayes, 36 Neb., 526.</p>

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

<p>1. Claims Against State: Disallowance by Auditor: Appeal to District Court: Trial. On appeal to the district court from the disallowance of a claim by the state auditor, such claim must be presented and acted upon, upon the same proofs as were submitted in support thereof when the action of the auditor was had thereon.</p> <p>2. Bes Adjudieata. When, by .reason of the insufficiency of the statement or claim originally presented to the auditor, the action of the auditor was justifiable in disallowing the claim presented, and the same has been affirmed in the district court, the rights of the claimant are not thereby adjudicated to such an , extent as that he is precluded from afterwards presenting for allowance to the auditor aforesaid his claim properly to entitle him to an allowance of the same.</p>

■ Judgments and decrees cannot bind strangers to the record, but only parties and privies. (Soak v. Suba, 31 Neb., 228; O’Brien v. Gaslin, 24 Neb., 559; State v. Sioux City & P. R. Go., 7 Neb., 357.) No judgment or decree is admissible in proof of title when the parties against whom it is offered were in possession at the time of the commencement of such suit. (Graves v. Eioart, 11 S. W. Rep. [Mo.], 971; Weed Sewing Machine Go. v. Baker, 40 Fed.

Error from the district-court of Nuckolls county. Tried below before Morris, J. Tbe facts are stated by the commissioner. contending that the defendant is liable for damages, cited: Hussey v. Norfolk 8. R. Go., 98 N. Car., 41; Benton v. Chicago, R. I. & P. R. Go., 8 N. W. Rep. [Ia.], 330. cited : Virginia M. R. Co. v. Roach, 34 Am. & Eng.

<p>1. Carriers: Negligence. By the statutes of this state a common carrier is made an insurer of the safety of its passengers, except as against the gross negligence of such passenger, or his violation of some rule of the carrier brought to such passenger’s notice.</p> <p>2. Common carriers of passengers should be held to the strictest accountability and be required to exercise the highest degree of care and forethought of which the human mind is capable. This rule is founded on principles of public policy and enforced by the courts for the protection of the traveling public.</p> <p>3. Carriers: Personal Injuries: Contributory Negligence. When the proof shows that one was a passenger of a common carrier, and, while such passenger, was injured, the law raises the presumption of the carrier’s liability from the fact of the injury; but this presumption is not a conclusive one; it is such a presumption as in the absence of all evidence as to the cause of the passenger’s injury, would render the carrier liable; and in such case, when the carrier shows that the passenger was injured by stepping from its running train, the presumption of liability raised by law against the carrier is overthrown, and it then devolves upon the passenger to show some justifiable reason for such action to relieve himself from the imputation of gross negligence; and the supposition or belief of the passenger that the train was standing still when he took the step which injured him, is not competent evidence from which the jury may find that the passenger was not negligent, unless accompanied by evidence tending to show circumstances rendering this supposition reasonable, or at least excusable, as, in the absence of such evidence, no reasonable mind could honestly say that the passenger was not guilty of gross negligence, and a verdict for such passenger would be without evidence to sustain it.</p> <p>4. The former opinion in this case, reported in 36 Neb., 642, adhered to.</p>

Error from the district court of Seward county. Tried below before Bates, J. contending that the contract lacks mutuality, cited: Bishop, Contracts, secs. 77, 78, 153; Mason v. Decker, 72 N. Y., 595. in support of the contract, cited: Homan v. Steele, 18 Neb., 652; Biglow, Estoppel, p. 684, and cases cited; Justice v. Lang, 42 N. Y., 493; Weight-man v. Caldwell, 4 Wheat. [U. S.], 84; Ives v. Hazard, 4 R. I., 27.

<p>1. Review: Proceedings in Error. The judgment of a district court, pronounced in an ordinary action at law, can only be reviewed in this court on a petition in error.</p> <p>2. Appeal: Review. An appeal from an order dismissing a suit in the nature of an equitable garnishment, brought to restrain the defendant from- paying money to an alleged debtor of the appellant during the pendency of his suit at law against such debtor, will be dismissed without an examination on its merits, when it appears that appellant failed in his suit at law in the court below to establish his claim, and the judgment in such case has been affirmed by this court.</p>

Error from the district court of Otoe county. Tried below before Hall, J. The facts are stated in the opinion. One of the parties to a suit cannot appeal in his own behalf and ignore his associates. (Wolf v. Murphy, 21 Neb., 472; Hendrickson v. Sullivan, 28 Neb., 790; Curten v. Atkinson, 29 Neb., 612.) The change of venue granted was an abuse of discretion prejudicial to the rights of plaintiff in error.

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

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

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

Error from the district court of Douglas county. Tried below before Hopewell, J. The facts are stated in the opinion. The statute of limitations had not run against the action.

Heard below before Scott, J. The facts are stated in the opinion. The assessment for the regular taxes is void because plaintiffs’ lots, utterly regardless of their value, relative situation, or local condition, were, by the assessor, lumped together, and indiscriminately assessed at a valuation of ten dollars each. (California & Oregon Land Co. v. Gowen, 48 Fed.

<p>1. Witnesses: Cross-Examination. Ordinarily, the cross-exami- ■ nation of a witness should he restricted to matters brought out on his examination in chief. If it is desired to examine the witness upon other matters, the cross-examining party must make the witness his own, and call him as such. Boggs v. Thompson, 13 Neb., 405, followed.</p> <p>2. Admission of Evidence: Objections: Review. Generally, in order to predicate error on the overruling of an objection to testimony, specific ground of objection must have been brought to the attention of the trial court prior to the ruling; but where a general objection to evidence is sustained, the party'against whom the ruling was made cannot urge, as a ground of reversal, that the objection was not specific.</p> <p>3. -: Exceptions: Review. An exception must betaken to the ruling of a trial court on the admission or exclusion of testimony, in order to obtain a review of the question in this court.</p> <p>4. Alteration of Instruments. Where a promissory note has been altered in a material part after its delivery to the payee, without the knowledge or consent of the maker, it is invalid, even in the hands of an innocent purchaser.</p> <p>5. -: Material Alterations. The insertion of the figures “10” in a promissory note, thereby making the instrument draw interest at ten per cent, when no rate of interest was originally specified, is a material alteration.</p> <p>0. Instructions: Harmless Error: Review. A judgment will not be reversed for the giving of an instruction not based upon the evidence, where it is clear that the party complaining of it could not have been prejudiced thereby.</p> <p>V. -. It is not error to refuse to give an instruction not applicable to the pleadings and evidence, although correct as an abstract proposition of law.</p>

<p>Original application for mandamus.</p> <p>cited: Richardson v. Pratt, 20 Neb., 196; Richardson v. Doty, 25 Neb., 420.</p> <p>cited: State v. Eberhardt, 14 Neb., 203; State v. Scott, 17 Neb., 690; People v. Martin, 4 Neb., 54; McGee v. State, 32 Neb., 149; State v. Graham, 21 Neb., 354.</p>