Volume 40 — Nebraska Reports

<p>1. Fire Insurance: Proof of Loss: Evidence. Ordinarily, in an action on an insurance policy containing a provision to the effect that the insured shall furnish to the company written proof of his loss within sixty days after the fire, the plaintiff, in order to recover, must establish on the,trial that such proof was duly furnished, or that the same was waived by the defendant.</p> <p>2. Pleading: Waiver of Proof of Loss. Where the answer filed to the petition puts in issue the execution and delivery of the policy, the defendant thereby waives the terms of the policy relating to the preliminary proof of loss.</p> <p>3. Proof of Loss: Objections: Waiver. In case the preliminary proof of loss submitted to the company is unsatisfactory, it should return the same to the insured within a reasonable time, stating in what respect it is considered defective, and if it fails to do so, but rejects such proof on the ground that the same was not furnished in proper time, it cannot afterwards avail itself of the insufficiency of such preliminary proof.</p> <p>4. Evidence. The omission of the plaintiff to introduce in evidence a paper or document essential to his case is cured by the defendant afterwards putting in evidence such paper or document.</p> <p>5. Pire Insurance: When Action on Policy Accrues. Wheie an insurance company denies the making of the policy and all liability thereunder, and absolutely refuses to pay the loss, the right of action of the insured immediately accrues, although the policy contains a clause giving the company an option either to pay the loss or replace the property damaged within a specified time.</p> <p>6. -: Renewal op Policy: Payment op Premium: Tender. An agent of an insurance company, duly authorized to take and approve risks and to insure, issued a policy of insurance extending credit for the premium, although the policy acknowledged the payment thereof. Prior to any loss the full amount of such premium was tendered by the insured to such agent, but the money was not received owing to the fact that the latter was about to enter a railroad car, and would not accept the money. Before the agent returned home the property was destroyed by tire. Afterwards, but prior to instituting suit on the policy, the amount of premium was paid to the company and the same was retained by it with full knowledge of all the facts. Held, That such payment related back to the time the tender was made to the company’s agent, and that the company could not avail itself of the condition contained in the policy that “this company shall not be liable by virtue of this policy, or any renewal thereof, until the premium therefor shall be actually paid,” to prevent a recovery.</p> <p>7. Action on Policy: Evidence of Value of Property. In an action to recover for a loss under a policy, it is competent for the insured, who was acquainted with the value of the property destroyed at the time of the fire, to testify as to such value.</p> <p>8. Witnesses. It is not the proper practice to permit a witness to answer a question without objection, and then move to have the testimony excluded.</p> <p>9. Objections to the rulings of the trial court on the admission and exclusion of testimony examined and considered, and said objections overruled.</p>

<p>1. Jurors: Challenges: Evidence: Review. Where the trial court overruled defendant’s challenge for cause to a juror, and the record is silent as to the manner in which the juror was dismissed, and does not show that the defendant was compelled to exhaust his peremptory challenges to exclude him from the jury, and the record does disclose that the party challenged was not one of 'the jurors who tried the case, held, that, so far as indicated by the record, there was no prejudicial error in overruling the challenge to the juror.</p> <p>2. "Witnesses. In the cross-examination of a witness it is competent to interrogate him in regard to any interest, pecuniary or otherwise, and the extent of such interest he may have in the result of the trial of the case in which he is testifying, as affecting his credibility.</p>

<p>Replevin: Attached Property: Justification op Attaching: Officer. Where an officer attached property which was after-wards taken from him under a writ of replevin issued in an action by parties who claimed to be the owners and entitled to the immediate possession of the property, it devolves upon the officer to show his authority by a regularly issued writ of attachment. If he alleges as a justification his possession under the attachment process, this is necessary to prove his right of possession and the value of his possession if the action is decided in his favor.</p>

Under similar statutes to ours, other courts have held that the officer was liable only where the defendant in replevin suit excepts to the sufficiency of the sureties on the bond. ( Westervelt v. Bell, 19 Wend. [N. Y.], 531; Wilson v. Williams, 18 Wend.- [N. Y.], 585; Cobbey, Replevin, sec. 695, and cases cited.)

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

Error from tbe district court of Douglas county. Tried below before Davis, J. The opinion contains a statement of the case. The public has demanded rapid transit. A higher degree of care is required of the public than under the horse car system. (Carson v. Federal Street & Pleasant Valley R. Co., 15 L. R. A. (Pa.), 257, and cases cited.) Passengers and traveling public are bound to look out for approaching trains when crossing an electric street car track.

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

<p>1. Trespass: Title. An action of trespass guare clausum can only be maintained where the plaintiff bad title or possession at the time of the acts complained of. Chicago, B. I. & P. B. Co. v. Shepherd, 39 Neb., 523, followed.</p> <p>2. -: -. So where the trespass complained of consists of the occupation of the land by railroad tracks, and the entry and construction of the tracks is admitted to have been beyond the period of limitations for such an action, the plaintiff, to recover, must show title in himself to the land occupied.</p> <p>3. Boundaries: Parol Evidence. Where the description in a deed contains a call to and along a line, the true location of which is uncertain, parol evidence is admissible to show that at the time of the conveyance a particular line was in the community generally recognized by the name used in the deed.</p> <p>4. -: Maps as Evidence. Maps proved to be in common and accepted use in the commijnity at the time of the conveyance are likewise admissible for the same purpose.</p> <p>5. Adverse Possession. In order to create title by adverse possession, the possession, in addition to other elements, must be exclusive for the period of limitations.</p> <p>6. Trespass: Evidence of Title. Evidence that a roadmaster in charge of the construction of a side track over certain land, when a person claiming to be the owner of the land objected to the construction of the track, promised such person that he would be paid for the land occupied, is insufficient to prove that the company entered under a license from the claimant and in recognition of his title.</p> <p>7. -: -. Nor will a license be implied from the fact of occupancy for a long time without objection on the part of the claimant, the claimant relying on adverse possession during that period to establish his title.</p> <p>8. Adverse Possession: Corporations. A corporation chartered by an act of congress and incompetent to acquire title to land in this state may still maintain a possession adverse to all persons except the state. Myers v. MeOavock, 39 Neb., 843, followed.</p> <p>9. Review: Assignments of Error. In order to obtain a review of alleged errors the petition in error must assign the same with such particularity as to enable the court to determine the precise ruling complained of.</p>

<p>Error from the district court of Douglas county. Tried below before Davis, J.</p> <p>See opinion for citations.</p>

Error from the district court of Butler county. Tried below before Bates, J. The company is not liable for a failure fo keep in repair at a village street crossing the planking between the rails constituting a sidewalk.

<p>1. Usury: Interest. Where a national bank loans money at a usurious rate which is included in the note, in an action to enforce the contract the interest is forfeited. Following Sail v. First Nat. Bank of Fairfield, 30 Neb., 99.</p> <p>2. negotiable Instruments: Consideration: Usury. A promissory note given for already accrued interest, in part usurious, was without consideration, and suspension of the right of collection between its date and maturity in no way operated to supply this essential element otherwise lacking.</p> <p>3. Chattel Mortgages: Consideration for Note. A mortgage gives to the mortgagee no right of possession of the chattels mortgaged when the note thereby secured is wholly without consideration.</p>

<p>1. The damages to owners of land assessed in establishing public roads, whether the county is under township government or the commissioner system, cannot lawfully be paid from the general fund of the county, but should be paid out of the road fund belonging to the road district in which the land taken for the highway is situated.</p> <p>2. An injunction lies at the suit of a taxpayer of the proper county to restrain the issuance by the county clerk of a warrant on the county treasurer for an illegal or unauthorized purpose, and to enjoin the payment of such warrant by the county treasurer.</p>

<p>1. Bill of Exceptions: Allowance. The judge of the district court, who passes upon a preliminary motion in a case, may properly settle a hill of exceptions preserving the evidence introduced upon the hearing of such motion, notwithstanding another judge presided at the trial of the case upon the merits.</p> <p>2. -: Time to Serve. The time for preparing and serving such a bill of exceptions, where no time is given to reduce the exceptions to writing, begins to run from the final adjournment of the term of court at which the decision upon the motion was made, and not from the close of the term at which the final judgment in the case was rendered.</p> <p>3. -: Time to Present for Allowance: Notice: Amendments. Where amendments are proposed to a bill of exceptions, the draft of the bill, with the proposed amendments, must be presented to the trial judge within ten days after the return of the same to the party seeking the allowance of the .bill, upon five days’ notice to the adverse party or his attorney of record of the time and place of such presentation.</p> <p>4. -: -: -: Waiver: Amendments. When the party suggesting amendments to a bill of exceptions appears before the judge and insists that his amendments be allowed,without making any objections as to the sufficiency of the notice, or that the bill was hot submitted to the judge in time, he waives all objections as to the sufficiency of the notice, and as to the time the bill was presented to the judge for his approval' and signature.</p>

<p>Res Adjudicata. A judgment in full force is a complete bar to a subsequent action between the parties thereto, or their privies, upon the same subject-matter litigated in the first suit.</p>

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

<p>1. Sale: Rescission oe Contract. One who seeks to rescind a contract is required to place the other party in statu quo by returning the property received thereby within a reasonable time.</p> <p>2. -: -: Evidence. Evidence examined, and held not to prove a return of the property or notice of an election to rescind within a reasonable time.</p>

<p>Beview: Evidence. This case presents questions of fact only, and the evidence held sufficient to sustain the judgment of the district court.</p>

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

Heard below before Holcomb, J. The burden of proof was on the bank, when the question of usury was raised by.the answer, to show that it was a bona fide purchaser for value without notice. (Darst v. Backus, 18 Neb., 231.) The wife has a right to mortgage her property, if she so desires, and the consideration moving to the husband is sufficient to sustain the mortgage, when it is entered into voluntarily on her part.

<p>Stare Decisis. The conclusion and decision announced on a former hearing of this case (38 Neb., 1) are approved and adhered to.</p>

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

Heard below before NevÍlle, J. The burden of proof is on the contestant, when he seeks to introduce the ballots to overturn the official count, to-establish by affirmative evidence that they have been preserved substantially in the manner and by the officers prescribed by the statute; that they are the genuine ballots cast by the voters, and that they have not been tampered with.

<p>1. Admission of Evidence: Objections: Review. The sustaining of an objection to an answer which was immaterial to the issues on trial, presents no question for review; and this result is not avoided subsequently by copious offers to prove facts, entirely outside the scope of both the question and answer, to which the objection had already been sustained.</p> <p>2. Instructions not complained of in the motion for a new trial cannot be reviewed in the supreme court, even though their correctness is challenged by the petition in error and in argument of counsel.</p>

<p>1. Mortgage Foreclosure: Appraisement: Validity of Sale. Where jflaintiffs, having joint interests in a mortgage, in their petition declared the mortgage wholly due and collectible because of non-payments according to stipulations therein contained, consistently with which declaration the prayer was for the ascertainment of the whole amount secured by such mortgage, in which foreclosure proceeding a decree for much less than was really due was entered, held, in proceedings to enforce said decree, that the deduction by the appraisers from the value of the property of the balance omitted from the decree, as being a subsisting lien on the property, vitiated the sale made on such, basis of deduction adopted by the appraisers.</p> <p>2. -: Election to Declare Debt Due: Pleading. After ' default of defendants, the filing of an amended petition, differing from the original only in omitting the averments of an election by plaintiffs according to the terms of the mortgage declared upon to consider it wholly due and collectible, was not operative-to repudiate such election, even though, in the absence of express stipulation to that effect, plaintiffs might have had the right to-reconsider the election made and .pleaded as aforesaid.</p> <p>3. -: Pleading: Decrees. An amended petition, filed after an answer was due from defendants, who had made no appearance and who never had notice of the filing of such amended petition, formed'no basis for a valid judgment or decree against, said defendants. Under such circumstances a decree could only he entered conformably to the averments and prayer of the original petition.</p>

Exceptions by the county attorney to the decision of the district court for Gage county, Bush, J., presiding. Filed under the provisions of section 515 of the Criminal Code.

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

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

Original action to wind up the affairs of the state bank of Wahoo, Nebraska, under the banking law of 1889. The receiver appointed by the court filed a petition for an order requiring W. H. Dickinson, Sr., and others to answer and show cause why the undivided one-half interest in the Wahoo Electric Light Company should not be converted into assets of the bank.

Heard below before Davis, J. The facts are stated by the commissioner. contending that the contract was beneficial to the infant and should be sustained, cited: Breed v. Judd, 1 Gray [Mass.], 455 ; Baker v. Lovett, 6 Mass., 78; Wheaton v.East, 5 Yerg. [Tenn.], 41; Rad-ford. v. Westoott, 1 Uesau. [S. Car.], 596. In some cases it has been held that services of counsel for an infant in regard to his estate are necessaries.

<p>1. Fraudulent Conveyances: Proof of Fraud: Presumptions. Fraud is never to be presumed. It must be proved. A ■ creditor of a vendor seeking to invalidate a sale upon the grounds of fraud must prove facts from which a legitimate . inference of fraudulent intent can be drawn. Evidence simply-justifying a suspicion is not sufficient. Jaege v. Kelley, 52 N. " Y., 274, followed.</p> <p>2. -: -: -: Burden of Proof. In the absence of evidence to the contrary, honest and fair dealing in all transac- : tions are to be presumed; and if any person claims that there ' was fraud in any transaction, it devolves upon such person to ■ prove the fraud, and it does not devolve upon the party charged with committing the fraud to prove that the transaction was honest. Long v. West, 31 Kan., 298, followed.</p> <p>3. Preferring Creditors: Evidence of Fraud. Farwell v. ' ’ Wright, 38 Neb., 445; Kilpatriclc-Koch Dry Goods Company v. Mc-Pheeley, 37 Neb., 800; Jones v. Loree, 37 Neb., 816; Temple v. Smith, 13 Neb., 513; Smith v. Schmitz, 10 Neb., 600, cited, ap- ■ plied, and approved.</p>

<p>1. Receivers: Attachment: Banks. The property of an insolvent hank, prior to the appointment of a receiver therefor or putting the sheriff in possession thereof by order of a court or judge, is not exempt from seizure by attachment or other legal process at the suit of its creditors.</p> <p>2. Attachment Lien. The lien acquired by the levy of an attachment upon the property of an insolvent bank is not vacated-by the subsequent appointment of a receiver for such bank.</p> <p>3. Receivers: Insolvent Bank. The receiver of an insolvent bank takes the assets thereof incumbered' with all valid liens thereon which attached prior to his appointment.</p> <p>4. Judgments: Receivers: Intervention. The receiver of an insolvent bank who intervenes in an action to which said bank is a party, thereby submits himself to the jurisdiction of the court in which such suit is pending, and can only review the judgments and rulings of such court in the same manner as any other litigant.</p>

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

<p>1. Sales: Harvesting Machines: Contracts: Warranty: Notice of Defects: Evidence. A manufacturing company sued a farmer for the price of a harvester delivered to him hy its agent under a contract of sale and warranty, which provided; “That the harvester was to be paid for when tested and found to do good work; that if on starting the machine it should in any way prove detective or fail to work, the purchaser should give prompt written notice thereof to the agent from whom he purchased it, and allow sufficient time for a person to be sent to put it in order, and the defective part, if any, replaced, the purchaser rendering necessary and friendly assistance.” The harvester was delivered to the farmer on Safurday evening. Monday morning, following, the employes of the agent, with the assistance of the farmer, tested the harvester, and it failed to work properly. Of this trial and failure of the harvester the agent was informed on Monday evening by his employes. Wednesday evening, following, the larmer, in person, verbally notified the agent of the trial of the harvester and its failure to work, and the agent then promised to send a person Thursday morning, “bright and early,” to put the harvester in order. The farmer’s grain was then ripe for harvesting; he waited for the person whom the agent was to send until 1 o’clock in the afternoon Thursday, and, such person failing to appear, the farmer then went to a neighboring village to procure a machine to harvest his grain; and while there employes of the agent offered to then go with the farmer and put the machine he had purchased in order. This offer the farmer declined, and returned the harvester to the agent. Held, (1) That it seems the agent was not entitled to a written notice of the failure of the harvester to work, when his own employes started and tested the harvester; (2) that, in any event, the written notice of the failure of the harvester to work was waived by the agent by his agreeing to send a person on Thursday morning to put the harvester in order; (3) that the findings of the jury that the farmer allowed the agent sufficient time to send a person to put the harvester in order, and that such agent did not send such person for such purpose within a reasonable time, were supported by the evidence.</p> <p>•. Sandwich Mfg. Co. v. Feary, 34 Neb., 411, overruled. 2.</p>

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

<p>1. Criminal Law: Trial: Jury: Reporter’s Notes. On a trial for felony, the jury, after having been sent out to consider of their verdict, returned into court and requested to have the testimony of two of the witnesses for the prosecution read to them. By direction of the trial judge, the court reporter read from his notes the evidence requested by the jury. The prisoner was present in court in charge of the sheriff; his counsel was not present and had no notice of the transaction. Held, Reversible error. Jame-son v. State, 25 Neb., 185, distinguished.</p> <p>2. Assault with. Intent to Commit Murder: Evidence. The evidence in this case examined, and held, not sufficient to-sustain a conviction for an assault with intent to commit murder.</p>

Error from the district court of Buffalo county. Tried below before Holcomb, J. The defense of ultra vires is a special defense, which can only be raised when pleaded, and the action having been tried in the justice court upon general denial, under which the plea of ultra vires could not be raised, there was error in the action of the district court-in permitting an amended answer to be filed raising this question.

Heard below before Harrison, J. The opinion contains a statement of the case. The records of Hall county, in order that the plaintiff should recover, must show a true and correct title in fee-simple in the plaintiff. (21 Cent. Law Journal, p. 164, and cases cited; Cornell v. Andrews, 15 Cent.

Error from the district court of Douglas county. Tried below before Doane, J. See opinion for a statement of the case. The court erred in permitting the plaintiff Nelson to testify to the falsity of the slanderous charges alleged to have been made concerning him by the defendant Laing. (Cooley, Torts, p. 207; Greenwood v. Cobbey, 26 Neb., 449; Briggs v. Garrett, 111 Pa.

<p>1. Contracts: Equity: Specific Performance. Courts of equity-in the exercise of their jurisdiction to compel the specific performance of contracts, will generally enforce the contract only as it was made by the parties, and will not make a new contract or enforce the performance of an act upon conditions other than-those agreed upon by the parties in the contract.</p> <p>2. Specific Performance : Optional Contracts. The assignee of an optional contract for the sale of land, the contract providing that payment of a portion of the purchase money shall he deferred, cannot substitute his own personal liability for that of the original vendee and compel a conveyance upon tender of his own notes for the deferred payments.</p> <p>3. Vendor and Vendee: Specific Performance: Tender. In order to enforce a conveyance by a vendor under an optional contract of sale the vendee or owner of the contract must comply with, or tender compliance with, the terms of the contract. Therefore, where the contract was with A and provided for payments of $1,500 in cash, $1,000 in one year and $1,000 in two years from the date of the deed, and A assigned the contract to B, the depositing in a bank, with notice to the vendor, of C’s check for $1,500, and the notes of D for the deferred payments, together with a mortgage upon the land securing them, and the draft of a deed conveying the land to D, was not a compliance with the terms of the contract, and specific performance was properly refused.</p> <p>4. Mice v. Gibbs, 33 Neb., 460, overruled.</p>

<p>1. Error Proceedings: Record of Review. The jurisdiction of this court in error proceedings extends only to the affirmance or the reversal, vacating, or modifying of a judgment according to the record made in the district court. Original evidence, by affidavits or otherwise, cannot be here received to alter, contradict, or avoid that record.</p> <p>2. Chattel Mortgages: Replevin by Mortgagee: Attachment: Review. In an action of replevin by a mortgagee of chattels against a sheriff who has taken them on attachment against the mortgagor, the defendant cannot be permitted to recover merely upon the finding of the jury that the value of the mortgaged chattels was sufficient to satisfy both the mortgage and the attachment, regardless of the bona fides of the mortgage. If the mortgage was good, the mortgagee was entitled to the full security afforded him thereby, and he is entitled to have the proceedings adjudging it void reviewed in this court. McDonald v. Bowman, 35 Neb., 93, in this respect overruled.</p> <p>3. Attachment: Lien Pending Review of Order to Discharge. Where an order is made discharging an attachment, the filing of a petition in error and the filing and approval of a supersedeas bond within the time fixed by the court, not to exceed twenty days, operate to continue the lien of the attachment in force pending error proceedings. The issuance of a summons in error within that time is not necessary for that purpose.</p> <p>4. Chattel Mortgages: Fraud of Mortgagor: Evidence. Declarations of a mortgagor of chattels, made after the execution of the mortgage, are admissible in an action between the mortgagee and creditors of the mortgagor for the purpose of establishing a fraudulent intent on the part of the mortgagor. Sloan v. Coburn, 26 Neb., 607, followed.</p> <p>5. -: -: -. If such declarations are made while the mortgagor remains in possession of the property, they are admissible as part of the res gestee,. Campbell v. Holland, 22 Neb., 587; White v. Woodruff, 25 Neb., 797, and Cunningham v. Fuller, 35 Neb., 58, followed.</p> <p>6. Instructions: Review: Assignments of Error. An assignment of error as to the giving en masse of certain instructions will be considered no further than to ascertain that any one of the instructions was properly given. Hiatt v. Kinlcaid, 40 Neb., 178, followed.</p> <p>7. New Trial: Review. In an action by several plaintiffs, where there was a verdict against all, a motion for a new trial, made by them jointly, must be overruled if the verdict was correct against one-of them. Scott v. Chope, 33 Neb., 41, followed.</p>

<p>1. Sufficiency of Evidence to Support Verdict. Upon a re-examination of the evidence, held, that it is insufficient to sustain a verdict for a sum so small as found by the jury. Porter v. Sherman County Banking Co., 36 Neb., 271, affirmed.</p> <p>2. Usury: Action to Recover Deposits: Agency. Where a partner in a banking partnership, or an officer of a banking corporation, is the agent of an individual for the management of his property, and such .agent collects rents and, under an agreement with the principal, invests the proceeds at usurious rates, keeping an account in the bank in which he deposits all sums realized, the bank cannot set up usury as a defense to an action by the principal against it to recover his deposits.</p> <p>3. Mew Trial: Joint Motion. In an action against several defendants, where there was a verdict against all, a motion for a new trial made by the defendants jointly must be overruled if the verdict was correct against any one of them. Scott v. Chope, 33 Neb., 41, followed.</p> <p>4. Judgment Upon Review in Supreme Court: Appeal. Except where the decision of an appellate tribunal necessitates a trial of an issue for which the constitution guaranties a trial by jury, it rests in the discretion of the appellate tribunal, upon the reversal of a judgment, to enter in the appellate court a proper judgment or to remand the case to the'court from which it was appealed, either with directions to enter a specific judgment, for a retrial of particular issues, or for a new trial of the whole case. Such discretion should be exercised in such manner as to best and most surely accomplish the ends of justice. '</p> <p>5. Proceedings in Error: Order to Remand Cause. The plaintiff below brought this case to this court on error, complaining of error in the assessment of the amount of recovery. The defendants filed a cross-petition in error, assigning many errors. The defendants having joined in the motion for a new trial, and the verdict being clearly right in its direction against one of the defendants, the court was precluded from examining the questions sought to be presented affecting only the rights of the others; but the plaintiff being entitled to a reversal of the judgment against that one defendant because of error in the assessment of the amount of recovery, the court refused to remand the case for a reassessment of damages only and awarded a new trial of the action.</p>

Heard below before Beall, J. A judicial sale may be set aside for fraud or unfairness of any kind. (McKeighan v. Hoplcins, 19 Neb., 34; Paulett v. Peabody, 3 Neb., 196; Taylor v. Courtnay, 15 Neb., 190; Aldrich v. Lewis, 28 Neb., 502.) The case was taken up immediately after the filing of affidavits by the plaintiff, and no time was given to prepare and file affidavits. The court erred in overruling the application for a continuance.

The undisputed testimony shows that the appellant and those on whose behalf he brings this action stood by and permitted, without complaint or objection, the Kearney & Black Hills Railroad Company to complete its part of the contract, at a large expenditure of money, on the result of the election and the faith and expectation that it would receive the bonds.

<p>1. Permanent School Fund: Loans: State Officers. By section 1, article 8, of the state constitution the sole power to manage, loan, and invest the permanent school funds of the state is lodged with a board composed of the governor, secretary of state, treasurer, attorney general, and commissioner of public lands and buildings; and said board caunot be deprived of its functions by legislative enactment, nor can the legislature confer authority upon a single member of said board, or any other person, to invest any portion of said trust funds.</p> <p>2. Constitutional Law: School Fund: State Treasurer. Section 2i>, chapter 80, of the Compiled Statutes of 1893, in so far as it attempts to authorize the state treasurer alone to invest moneys in his hands belonging to the permanent educational funds of the state, contravenes section 1, article 8, of the constitution, and is therefore inoperative. .</p>

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

<p>1. Boundaries: Location of Government Cornees: Evidence. Field notes and plats of the original government survey are competent evidence in ascertaining where monuments are located, in case a government corner is destroyed, or the point where it was originally placed cannot be found, or the location of the original corner is in dispute; but when it is shown by uncontradicted evidence that a section corner was located by the government surveyors at a certain point, such location must control, even though it is at a place different from that given in the field notes and plat.</p> <p>2. -: -: Review. Evidence examined and considered, and held to support the finding of the jury.</p>

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

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

Error from the district court of Lancaster county. Tried below before Tibbets, J. The facts are stated in the opinion. To entitle a defendant to have default and judgment set aside he must furnish not only satisfactory reasons in excuse for his default, but he must accompany his motion by his proposed answer, duly verified, so that the court may see whether he has a defense to „the action.

<p>1. Married Women: Surety fob Husband. A married woman in this state may contract as surety for her husband.</p> <p>2. -: -: Consideration. The extension of time of pay; ment of her husband’s past due indebtedness is a sufficient con-, sideration to support her contract as his surety for such debt.</p> <p>3. Abatement. An objection on the ground that there is another action pending for the same cause must he made before a trial on the merits or it will he waived.</p> <p>4. Review. Parties will as a rule he restricted in this court to the theory upon which the cause was prosecuted or defended in the court of original jurisdiction. ' ;</p>

Original action to wind up the affairs of the Nebraska Savings Bank, of Lincoln, Nebraska, under the banking law of 1889. The First National Bank of Lincoln, Nebraska, and others, filed in this case in the supreme court a petition for an order upon the receiver of the Nebraska Savings Bank to allow the amount due upon certain notes as claims against the latter. The petitioners held collateral security for the payment of the notes, but alleged it was insufficient.

Error from the district court of Nuckolls county. Tried below before Hastings, J. The opinion contains a statement of the case. It was an abuse of discretion for'the court to refuse to submit questions for special findings. (Floaten v. Ferrell, 24 Neb., 352; Nebraska & Iowa Ins. Co.v. Christiensem, 29 Neb., 581; Doom v. Walker, 15 Neb., 347.) The court erred in refusing to admit in evidence the contract releasing the company from liability for damage arising from fire.

<p>Error from the district court of Douglas county. Tried below before Keysor, J.</p> <p>cited: Missouri P. B. Co. v. Hays, 15 Neb., 224; Blakeley v. Chicago, K. & N. B. Co., 25 Neb., 212; Bepublican Valley B. Co. v. Linn, 15 Neb., 234; Chicago, K. & N. B. Co. v. Hazels, 26 Neb., 375; City of Plattsmouth v. Boeck, 32 Neb., 297.</p> <p>cited: Dearborn v. Boston, C. & M. B. Co., 24 N. H., 179; Watson v. Pittsburgh & C. B. Co., 37 Pa. St., 469.</p>

<p>1. Review: Questions in Appellate Court. Where a case is brought to this court on petition in error, to review the decision of the lower court on a motion of a purchaser to vacate the confirmation and set aside a judicial sale of real estate, only such questions as were presented in the lower court, or to which its attention was called and its ruling taken or requested, will be reviewed or considered in this court.</p> <p>2. Judicial Sales: Caveat Empior. The former decision in this case (Norton v. Nebraska Loan & Trust Co., 35 Neb., 466) approved and adhered to.</p>

<p>Error from the district court of Dixon county. Tried below before Norris, J.</p> <p>cited: Finch v. Hartpence, 29 Neb., 368; Sterner v. Wilson, 68 la., 714; Brooks v. Wright, 19 Kan., 501; Bethel v. Woodworth, 110. St., 393.</p> <p>cited : Riddle v. Yates, 10 Neb., 510; Nichols v. Hail, 5 Neb., 194; State v. Babcock, 20 Neb., 528; Mordecai v. Lindsay, 19 Plow. [U. S.], 199; Dowell v. Caruthers, 26 Kan., 720; Street v. Francis, 3 O., 277; Wetherbee v, Johnson, 14 Mass., 420; Sampson v. Welsh, 24 How. [U. S.], 207; Mills v. Brown, 16 Pet. [U. S.], 525; Fink v. Denny, 75 Ya., 663; Hansbrough v. Stinnett, 22 Gratt. [Ya.], 593; Tower v. Lamb, 6 Mich., •362; Cox v. Carr, 79 Ya., 28.</p>

Petition of attorney general for rules relative to original cases in the supreme court. The substance of the petition is stated in the opinion.' Section 2, article 4, of the constitution confers upon the supreme court original jurisdiction in civil cases in which the state shall be a party. That the legislature cannot take away, nor impair, this jurisdiction, either by expréss action or by non-action, is an elementary proposition’.

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

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

Error from the district court of Madison county. Tried below before Norris, J. The facts are stated by the commissioner. The execution being valid and regular on its face, and there being property in the possession of the judgment debtor, owned by him, the title to which was unquestioned, the defendants will be liable irrespective of the fact that plaintiff gave defendant Crabtree no indemnity bond.

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

<p>1. Mortgages: Stay of Execution of Decree of Foreclosure: Time to File Request. But lor the provisions of the statute, the plaintiff in a foreclosure suit would he entitled to-immediate execution of his decree upon its rendition. By the statute it is provided, however, that the defendant in a decree of foreclosure may stay the execution of the same by filing with the clerk of the court in which said decree is rendered a written request for a stay of execution thereof within twenty days from the date of its rendition. This is a statutory remedy, and is only obtained by a strict compliance with all the required conditions. Time is an essential element in the proceeding and one which neither the court nor the judge thereof can disregard. If a delay in filing such request beyond the limited time occurs, the right to the remedy is gone, and the plaintiff holds his decree discharged from this means of staying its execution.</p> <p>2. -: Foreclosure: Order for Stay of Execution: Time. An order of a district court recalling an order of sale in a decree foreclosing a real estate mortgage, and permitting the defendant in such decree to file with the clerk, more than twenty days after its rendition, a request for a stay thereof, is not void.</p> <p>3. --•: -: -: Review. Such an order is one affecting a substantial right made upon a summary application in an action after judgment, is a final order, and may be reviewer! on error.</p> <p>4. Order to Recall Execution: Review. The filing in this court of a petition in error to review such order, and the execution, approval, and filing of a supersedeas bond therefor required by the district court, does not vacate or suspend such order.</p> <p>f>. Mandamus. The remedy by mandamus is the last resort of the litigant. It is only when all other remedies have failed that he is entitled to this writ.</p> <p>6. Review by Mandamus. Mandamus will not issue when its effect would be to reverse or vacate an order of a court or tribunal having jurisdiction to make such order, although the same may be palpably erroneous ; and especially is this so when such order is one that may be reviewed on error or appeal. (McGee v. State, 32 Neb., 149; State v. Cotton, 33 Neb., 560; People v. Gar-nett, 130 111., 340.)</p>

Error from the district court of Adams county. Tried below before Gaskin, J. See opinion for statement of the case. The surety on the supersedeas bond should be bound only in the event of an actual affirmance of the judgment in whole or in part. He has a right to stand upon the strict construction of the'language of the bond. (Drummond v. Hus son, 14 N. Y., 60; Watson v. Husson, 1 Duer [N. Y.], 242; Gregory v. Obvian, 13 N. J. Law, 11; Wilson v. Churchman, 6 La.

<p>1. Mechanics’ Liens: Estoppel. A building contract between the owner and contractor provided: “The contractor hereby covenants and agrees that all materials and labor used in said building shall be promptly paid for, so that the same shall not become the subject of a lien against said premises, * * * and the owner shall have the right to retain, out of any payment due or to become due, an amount sufficient to indemnify her against any claim for materials or labor.” Held, That this agreement did not estop the contractor from filing a lien upon the premises.</p> <p>2. -: Subcontractor. One who furnishes material used in the construction of an improvement is not excluded from the benefits of the mechanic’s lien law solely because the materials so used were furnished to a subcontractor of a subcontractor.</p> <p>3. Pleading: Mechanics’ Liens: Appeal. A subcontractor brought a suit to foreclose a mechanic’s lien. The owner, the original contractor, and a material-man were made defendants. The material-man filed an answer, in the nature of a cross-bill, claiming a lien upon the premises of the owner for material furnished in the erection of the improvement. To this cross-bill the owner filed no answer, i{eld, That the owner could not be heard to object, on appeal, to the correctness of the finding and decree of the district court in favor of the material-man.</p> <p>4. Review. Where a finding of fact is made by a district court on conflicting evidence, this court will decline to disturb such finding, unless it appears that the same is unsupported by competent evidence.</p>

Heard below before Powers, J. The commissioner stated the facts in the opinion. The assignment, to be valid, must be indorsed on the contract. (Shuman v. Willets, 17 Neb., 482; MoCraney v. Griffin, 13 la., 313; Emerick v. Clemens, 26 la., 332; Green v. Day, 31 la., 328.) In case of a doubtful and ambiguous law, the contemporaneous construction of those who have been called on to carry it into effect is entitled to great respect.

<p>Error from the district court of Adams county. Tried below before Gaslin, J.</p> <p>cited: Bishop, Contracts, secs. 321, 886; In re Empress Engineering Co., 16 Ch. Dlv. [Eng.], 125; Glass v. Glass, 71 Ind., 392; Grangers Life & Health Ins. Co. v. Hamper, 73 Ala., 325 ; Scovill v. Thayer, 105 U. S., 143; Abbott v. Omaha Smelting Co., 4 Neb., 419; Mokelumne Hill Canal •& Mining Co. v. Woodbury, 14 Cal., 427; Livesey v. Omaha Hotel Co., 5 Neb., 50; Estabrook v. Omaha Hotel Co., 5 Neb., 76 ; Ticonic Water Power & Mfg. Co. v. Lang, o Am. Corp. Cases [Me.], 414; Belfast & M. L. R. Co.v. Cottrell, 66 Me., 185; Gar ling v. Baechtel, 41 Md., 305; McCann v. American Central Ins. Co., 4 Neb., 256; St. Paul, S. & T. F. R. Co. v. Robbins, 23 Minn., 439; Nelson v. Blakely, 47 Ind., 38; Thrasher v. Pike County R. Co., 25 111., 393; Strasburg R. Co. v. Echternacht, 21 Pa. St., 220; Aihol Music Hall Co. v. Carey, 116 Mass., 571; Rikhoff v. Brown’s Rotary Shuttle Seioing Machine Co., 68 Ind., 388; Indianapolis Furnace & Mining Co. v. Herkimer, 46 Ind., 142; Galena & S. W. R. Co. v. Ennor, 116 111., 55; Quick v. Lemon, 105 111., 578; Abbott v. Omaha Smelting Co., 4 Neb., 416; Ward v. Brigham, 127 Mass., 24.</p> <p>Harrod v. Hamer, 32 Wis., 162; First Nat. Bank of Favenport v. Favies, 43 la., 424; Cross v. Pinchneyville Mill Co., 17 III., 54; McClure v. Wilson, 43 111., 360; Trustees Baptist Education Society v. Carter, 72 111., 247; Griswold v. Trustees of Peoria University, 26 III., 41; Braun v. City of Chicago, 110 111., 186; City of Beardstown v. City of Virginia, 81 111., 545.</p>

<p>1. Negligence: Evidence. A verdict for negligence may be supported by inference, but the inference must be the logical, probable, and reasonable deduction from proved or conceded facts.</p> <p>2. Personal Injuries : Explosives. Kilpatrick v. Mchardson, 37 Neb., 731, adhered to.</p>

<p>Eewards: Counties. Section 296 of the Criminal Code, authorizing counties to offer rewards for the detection or apprehension of persons charged with a felony, does not authorize the payment of such reward until conviction. This condition applies as well to an offer made simply for the apprehension of a person as to one made for detection and apprehension.</p>

Error from the district court for Adams county. Tried below before Gaslin, J. The opinion contains a statement of the .case. Courts of. law cannot compel indemnity. (Randolph' Commercial. Paper, sec. 1697; Mowery v. Mastr 14: Nebí, 512; Pierson v. Hutchinson, 2 Camp. [Eng.], 211; Ex parte Greenway, 6 Yes.

<p>Error frdm the district court of Adams county. Tried below before G-aslin, J.</p>

<p>1. Appeal: Record for Review: Transcript: Authentication. In order to effect an appeal to this court from a judgment of the district court it is necessary to file with the clerk of this court, within six months from the rendition of the judgment, a transcript of the proceedings, authenticated by the certificate of the clerk of the district court. Such requirement is j urisdictional and cannot be waived by the parties, and the filing of the original pleadings in the district court does not take the place of such certified transcript.</p> <p>2. Review: Imperfect Transcript: Affirmance. Where a transcript of the judgment is the only paper filed here authenticated by the certificate of the clerk of the district court, and such judgment was one within the jurisdiction of the district court to render, the judgment will be affirmed.</p>

<p>1. National Banks: Guaranty. While a national bank may not lend its credit for the accommodation of others, still it may guaranty the payment of commercial paper as incidental to the exercise of its power to buy and sell the same.</p> <p>2. -: -: Powers or President: Ratification. A, being indebted to a national bank and being the holder of certain negotiable notes, indorsed them generally and delivered them to the president of the bank, who negotiated them for value to C, at the same time executing in the name of the bank a written guaranty of payment. Prom the proceeds of the sale A’s debt to the bank was canceled. Held (following People's Bank v. National Bank, 101 U. S., 181), (1) That the guarantying of the notes under such circumstances was within the powers of the bank; (2) that the authority of the president to execute the guaranty would be conclusively presumed in favor of the purchaser acting without notice to the contrary; (3) that the retention and enjoyment by the bank of the proceeds of such transaction constituted a ratification of the president’s act.</p> <p>3. ——■—: -: Evidence: Instructions. Where the evidence ' on behalf of the plaintiff suing upon such a guaranty tended to establish the state of facts set forth in the foregoing paragraph, it was error for the trial court, in the giving and refusal of instructions, to withhold from the jury the law as above stated.</p>

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

<p>Review: Evidence. No question of law was involved in this case, and the evidence was held sufficient to sustain the finding of the district court.</p>

<p>Error from the district- court of Burt county. Tried’ below before Clarkson, J.</p> <p>cited: Jones v. Johnston, 18 How. [U. S.], 150; Hagan v. Campbell, 33 Am. Dec. [Ala.], 280; Boorman v. Sunnuchs, 42 Wis.,. 235; Lynch v. Allen, 32 Am. Dec. [S. Car.], 671; Wood-bury v. Short, 17 Yt., 387; Warren v. Chambers, 25 Ark.,. 120; Murry v. Sermon, 1 Hawks [N. Car.], 56; Hopkins Academy v. Dickinson, 9 Cush. [Mass.], 544.</p> <p>cited: Lammers v. Nissen, 4 Neb., 250; New Orleans v. United States, 10 Pet. [U. S.], 717; Lovingston v. County of St. Clair, 16 Am. Rep. [111.], 516; Schurmeier v. St. Paul & P. R. Co., 10 Minn., 82; Jones v. Pettibone,2 Wis., 308*; Barnes v. City of Racine, 4 Wis., 486; Kraut v. Crawford, 19 la., 549; Shelton v. Maupin, 16 Mo., 128;' Warren v. Chambers, 25 Ark., 120; Municipality No. £ v. Orleans Cotton Press, 17 La., 122; Steamboat Magnolia v. Marshall, 39 Miss., 109.</p>

Error from the district court of Holt county. Tried below before Bartow, J. A forthcoming bond, reciting the sheriff’s seizure of certain property under a writ of detinue in the case, and conditioned for the delivery of it with other property if the suit fails, estops plaintiff from showing that such property was not so seized, or that it did not go into his possession under the bond. (Hill v. Nelms, 5 So. Rep. [Ala.], 797; Case v. Steele, 8 Pac.

<p>Exemption: Executions: Failure' or Sheriff to Call Appraisers. Where personal property is seized under an execution against a debtor, who has neither lands, town lots, nor houses subject to exemption, and an inventory, under oath, is made and filed by such debtor as provided by section 522 of the Code, it is the duty of the officer holding the writ to call appraisers to determine the value of the property, and the neglect or refusal of the officer to do so will not deprive the debtor of his exemptions, but he may sue for the value of the property.</p>

Tried below before Marshall, J. The opinion contains a statement of the case. The recognizance was entered into, filed, and approved by the justice within the time required by the statute. The. fact that the recognizance was signed did not invalidate it, and it was not necessary to enter it on the docket of the justice. (Irwin v. State, 10 Neb., 325; State v. Moran, 24 Neb., 103; Millikin v. State, 21 O. St., 635.) The court erred in dismissing the appeal.

<p>1. Mechanics’ Liens: Limitation of Lien. A mechanic’s lien will not be continued in force beyond the statutory period of two years except as to such persons, including mortgagees, as are made parties to an action to foreclose within such period.</p> <p>■2. -: Summons. In all cases the summons must be issued before the bar of the statute is complete, although sufficient if served thereafter.</p>

Tried below before Scott, J. The facts are stated in the opinion. Filing the motion to quash the indictment did not constitute a contempt of court. (Rapalje, Contempts, sec. 28; Mullin v. People, 24 Pac. Rep. [Col.], 880; In re Dalton, 26 Pac. Rep. [Kan.], 673; Ex parte Curtis, 3 Minn., 274; Neel v. State, 9 Ark., 259; Dunham v. State, 6 la., 245; State v. Anderson, 40 la., 207; MaFadden v. Reynolds, 11 Atl. Rep. [Pa.], 638; Thomas v. People, 23 Pac.

<p>Error to the district court for Burt county. Tried below before Dueeie, J.</p> <p>cited : State v. Patrick, 28 Am. Rep. [N. Car.], 340; State v. Morey, 2 Wis., 362; Thompson v. State, 4 Neb., 524; Turner v. O'Brien, 5 Neb., 548; Baldwin v. State, 12 Neb., 66; Meadv. State, 25 Neb., 447; Polin v. State, 14 Neb., 540; Langford v. State, 32 Neb., 782; People v. Brown, 48 Cal., 256; State v. Tucker, 76 la., 233; State v. Manley, 74 la., 561; State v. Brown, 25 la., 561.</p> <p>The description of the animals given in the information filed in this case is sufficient. (State v. Mansfield, 33 Tex., 129; People v. Stanford, 64 Cal., 27 ; People v. Littlefield, 5 Cal., 355; Perry v. State, 37 Ark., 54; Matthews v. State, 24 Ark., 484; Brown v. State, 44 Ga., 300; Grant v. State, 2 Tex. App., 163.)</p>

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

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

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

<p>1. Replevin: Findings: Review. An action of replevin was commenced in the district court and the property taken under the writ and delivered to the plaintiff. The parties to the action waived a jury and submitted the case to the court for decision upon a stipulated statement of the facts. The court made a general finding for defendants, containing no valuation of the property, and rendered a judgment for money only, based upon such finding. Held, That both finding and j udgment were erroneous, to such an extent as to call for a reversal of the case.</p> <p>2. Mortgages: Foreclosure: Growing Crops. A matured crop of corn standing ungathered upon land sold at judicial sale, which was not considered or taken into account by the appraisers in arriving at the value of the premises sold, did not pass to the purchaser at the judicial sale, but remained the property of the mortgagor who had planted and cultivated it.</p>

<p>Appeal from the district court of Chase county. Heard below before Cochran, J.</p> <p>cited: Bliss, Code Pleading, 100; Maxwell, Pleading & Practice, 25; Swenson v. Moline Plow Co.', 14 Kan., 387; Shellenbarger v. Biser, 5 Neb., 195; Burroughs v. Ellis, 38 N. W. Rep. [Ia.], 141; McDowell v. Lloyd, 22 la., 448; Cleveland v. Booth, 44 N. W. Rep. [Minn.], 670; Lowenstein v. Phelan, 17 Neb., 429; Pope v. Hooper, 6 Neb., 178; Fletcher v. Daugherty, 13 Neb., 224; Jachson v. Blodgett, 5 Cow. [N. Y.], 202; Richards v. Kountze, 4 Neb., 207; Holmes v. Andrews, 16 Neb., 296; Young v. Brand, 15 Neb., 601; Peet v. O'Brien, 5 Neb., 360; Johnson v. Hahn, 4 Neb., 139.</p> <p>cited: Colby v. Lyman, 4 Neb., 430; Forren v,. Klohe, 10 Neb., 373; White v. Bartlett, 14 Neb.,. 320.; Stratton v. Reisdorph, 35 Neb., 314; Studebalcer Mfg. Co. v. McCargur, 20 Neb., 500; Ch’ouse v. Holman, 19 Ind., 30; Moffitt v. Roche, 76 Ind., 75; Ranlcin v. Mayor, 9 la., 297; Bressler v. Martin, 34 111. App., 122; Benton v. Barnet, 59 N. H., 249;. Hardy v. Milter, 11 Neb., 395; Young v. Brand, 15 Neb., 601; Schoenheit v. Nelson, 16 Neb., 235.</p>

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

<p>1. Mechanics’ Liens. 'The failure of an account and its accompanying statement filed to secure a mechanic’s lien to disclose affirmatively that such filing is within the requisite time to entitle to the lien claimed, operates to defeat the relation back of such lien as against liens in existence before the filing of such account.</p> <p>2. -: Mortgages: Priorities. A mortgage, from the date of being filed for record, takes priority of mechanics’ liens for labor done or material furnished when no part of such labor was done and no part of such material was furnished before such mortgage was filed. Following Henry & Coatswirtlt Co. v. Fisherdiek, 37 Neb., 207, and Hoagland v. Lowe, 39 Neb., 397.</p>

<p>Error from the district court of Saunders county. Tried below before Bates, J.</p> <p>cited: Jenkins v. Jeffrey, 29 Pac. Rep. [Wyo.], 189; Randolph County v. Ralls, 18 111., 30; Wells, Jurisdiction, p. 48; 12 Am. & Eng. Ency. Law, pp. 299, 302, 303; 1 Boone, Code Pleading, sec. 259; Bispham, Equity, secs. 92, 138, 142, 143, 148; Keech v. Sandford, 1 White & T. L. Cas., 62; Perry, Trusts, sec. 427; Featherstonaugh v. Femoick, 17 Yes. [Eng.], 298; Johnson’s Appeal, 8 Atl. Rep. [Pa.], 36; Jenkins v. Doolittle, 69 111., 415; Baker v. Disbrow, 18 Hun [N. Y.], 29; Baker’s Appeal, 13 Atl. Rep. [Pa.], 494.</p> <p>cited: Parsons, Contracts, [7th ed.], ch. 13; Second Nat Bank of St. Louis v. Grand Lodge, 98 U. S., 123; Bishop, Contracts, sec. 318; Perry, Trusts, sees. 2, 95.</p>

<p>Heview: Attachment. The overruling of a motion to dissolve an attachment of mortgaged chattels, presented by the mortgagor - alone, will not be reviewed when upon the hearing of the motion it was shown that the rights of the mortgagor had been foreclosed under the mortgage referred to, and when there is in the record evidence sufficient to justify the conclusion that the mortgage was by the mortgagor executed with intent to defraud or delay his creditors.</p>

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

<p>1. Review: Action on Insurance Policy: Traite. ■ By a-clause-in an insurance policy issued by defendant it was provided that no suit should be maintainable unless commenced, .within one year from the loss. A petition was filed within the time limited to recover for an alleged loss of a part of the property insured. The question as to whether or not jurisdiction had.been obtained of the defendant was presented by its motion tp, djspaiss, far-the. alleged reason that the action had not heen commenced within the time limited by the contract for that purpose.' JBeld, That the ruling adversely to defendant must be deemed conclusivé when presented for review neither by its motion for a'new-trial nor by its petition in error. ,, ,,; :,</p> <p>2. Limitation of Actions:. Conte acts. The provision of section 19, title 2, Code of Civil Procedure, that‘‘.an actipn .shall.be deemed commenced, within the meaning of this title, as-to the defendant, at the date of the summons which is served on him,’ ’ is applicable to the limitations of the statute designated'as title 2 aforesaid, and cannot be used tó supplements special distinct1 limitation created solely by agreement of the,parties thereto, ,,.</p>

Error from the district court of Madison county. Tried below before Powers, J. The facts are stated by the commissioner. There was not sufficient evidence to support a verdict for the plaintiff, and there was such contributory negligence on his part as should have precluded a recovery under proper instructions of the court. (Sutton v. New York C. & JET. JEl. It. Co., 66 N. Y., 243; Lewis v: Baltimore & 0. B. Co., 17 Am.

<p>Conspiracy: Evidence: Review. The record in this case examined, and found to contain no evidence to support the verdict of the jury rendered against the plaintiffs in error.</p>

Error from the district court of Holt county. Tried below before Bartow, J. See opinion for authorities upon the questions discussed.

<p>1. Review: Briefs: Misconduct of Attorneys. It is conduct reprehensible in the highest degree for counsel in their briefs and arguments in this court to indulge in reflections upon the integrity of the district judges. Briefs filed herb containing such reflections will not be considered by this court, but ordered stricken from the files.</p> <p>2. Judgments: Power ofjCourts to Modify. The power of a district court over its own judgment during the term at which it is rendered is entirely discretionary; but the discretion of the court as to the vacation or modification of a judgment ends with the adjournment of the term at which such judgment was rendered, and neither the court nor the judge has any authority to vacate or modify a j udgment rendered by it after the term at which it was rendered, except for the causes and in the manner prescribed by the statute, and except in the exercise of its general equity powers. Smith v. Pinney, 2 Neb., 139, followed.</p> <p>3. Petition to Vacate Judgment: Grounds: Pleading. A defendant, after the close of the term of court at which a judgment was rendered against him, filed a petition to vacate such judgment on the grounds that neither he nor his counsel was present during such term of court, nor had any knowledge of the date of the session before its adjournment; that he wrote the clerk of the court, inquiring for the date of the term prior thereto, but received no reply; that by the usual route of travel he lived and was served with summons four hundred and fifty miles from the place of holding said court; that he employed one of a firm of three lawyers to defend his case, but the counsel so employed was in attendance upon the supreme court during the session of court at which such judgment was rendered, and neither of his partners knew anything of defendant’s case, nor had anything to do with its management. Held, That these facts do not show that defendant was prevented by unavoidable casualty or misfortune from defending his suit, within the meaning of section 602 of the Code of Civil Procedure, and that, therefore, the petition does not state a cause of action.</p> <p>4. Attorney and Client: Cutíes of Member of Law Firm. When one member of a law firm is retained or employed, such employment or retainer is that of the entire firm, and it is the duty of the attorney retained or employed to fully inform his partners of all engagements he has undertaken on behalf of the firm, and impart to' them all the facts within his knowledge bearing upon the case.</p>

<p>1. Attachment: Pleading. Attachment, though sometimes called an ancillary or auxiliary proceeding, is nevertheless, in all essential respects, a suit. The affidavit of a plaintiff made to obtain the writ of attachment, and the affidavit of a defendant, when made, denying the truth of the averments of the plaintiff, constitute the pleadings in the proceeding.</p> <p>2. Motion to Dissolve Attachment: Trial: Opening and Closing. The party issuing the attachment is entitled to the opening and closing on the hearing of a motion to dissolve, and ' on him is the burden of proof. Olds Wagon Co. v. Benedict, 25 Neb., 372, followed. (Dolan v. Armstrong, 35 Neb., 339.)</p> <p>3. Attachment: Trial on Motion to Dissolve: Issues: Evidence. Where the grounds for the issuing of an attachment are alleged in the language of the statute, and the defendant denies by affidavit the truth of the averments made to obtain such attachment, and moves to dissolve the same, the court before whom the proceeding is pending should by an order require the plaintiff in attachment, within a reasonable, fixed time, to file such affidavits or other evidence as he desires or relies upon to sustain the averments made by him to obtain the issuing of the attachment writ; and the defendant, in a reasonable, fixed time thereafter, to file such affidavits or other evidence as he desires or relies upon to traverse, explain, or avoid the case made by the plaintiff’s evidence; and the plaintiff, in a reasonable, fixed time thereafter, to file such affidavits or other evidence as is applicable in rebuttal.</p>

Error from the district court of Custer county. Tried below before Hamer, J. The facts are stated by the commissioner in the opinion.

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

<p>1. Review: Assignments on Error. An assignment of error a® to the giving en masse of certain instructions will be considered no further than to ascertain that any one of the instructions was properly given. Hiatt v. Kinlcaid, 40 Neb., 178, followed.</p> <p>2. Replevin: Pleading: Evidence. Under a general denial in. replevin the defendant may show any facts tending to disprove the plaintiff’s ownership or right of possession.</p> <p>3. -: Instructions. Therefore, where the defendant answered by a general denial, followed by a special pleading of facts admissible under the general denial, it was not error for the trial court in stating the issues to the jury to state the defense as consisting of a denial of the plaintiff’s claims.</p> <p>4. -: Partnership Property: Burden on Proof. The defense in an action of replevin being that plaintiff and defendant were partners and the property in controversy partnership property, the burden of proof is upon the plaintiff to establish hi® exclusive right.</p> <p>5. -: -: Value of Possession. Where one partner, by a writ of i eplevin, takes partnership property from the possession of the other, (he value of the latter’s possession should be assessed at the full value of the property, as no accounting can be had in that action to determine defendant’s actual interest.</p> <p>6. Jury: Challenges: Review. Assignments of error based upon overruling challenges to jurors will not be considered unless the record discloses that the challenging party exhausted his peremptory challenges.</p> <p>7. Review: Admission of Evidence. Certain rulings upon the admission of evidence examined, and held not to be erroneous.</p>

<p>1. Appeal from Justice Courts: Appearance in Appellate Courts. Where the law expressly forbids an appeal in a cer- | tain class of cases, the appearance of the appellee does not confer jurisdiction upon the appellate court. In such case there is a want of jurisdiction of subject-matter. Minneapolis Harvester Works v. Hedges, 11 Neb., 46, distinguished.</p> <p>2. -: Jurisdictional Amount. Where a case was tried to a jury in a justice’s court, the right to appeal depends upon the amount claimed in the bill of particulars. Where the prayer is for judgment for $20, the defendant cannot insist upon the allowance of interest in addition to that sum for the' purpose of giving him the right to appeal.</p> <p>3. -: -: Constitutional Law. Sections 985 and 1017 of the Code of Civil Procedure, forbidding appeals from judgments of justices of the peace where not more than $20 is claimed in the bill of particulars and the case is tried to a jury, are not repugnant to the constitution.</p>

Error from the district, court of Adams county. Tried below before Gaslin, J. See opinion for statement of the case. A compromise effected by the parties with all the facts before them, and without fraud or bad faith on the part of either, will not be disturbed. (Thompson v. Sawyer, 14 S. W. Rep. [Ky.], 909; Gilek v. Stock, 33 111.

<p>1. Transcript for Review, The transcript of a record filed in this court for the purpose of appeal imports absolute verity, and in considering the appeal must be treated as the sole and exclusive evidence of the facts.</p> <p>2. Mortgage Foreclosure: Deficiency Judgment: Pleading. It seems that under a prayer for the foreclosure of a mortgage and for general relief a personal judgment may be allowed tor a deficiency.</p> <p>3. -: -: -: Amendment. Where the prayer is in such form, and after confirmation of sale the plaintiff files a motion praying for a deficiency judgment, serving notice thereof upon the defendant, such motion will be treated as an amendment of the prayer of the petition.</p> <p>4. Mortgages: Deficiency Judgments. A judgment for a deficiency may be rendered against one who purchased the mortgaged property after the mortgage was made and in his purchase assumed and agreed to pay the mortgage debt. Cooper v. Foss, 15 Neb., 515, followed.</p> <p>5. --: -. A mortgagee will not be precluded from obtaining a judgment for a deficiency upon the ground that he knowingly procured too great an amount to be found due upon the mortgage when, in the proceedings for the deficiency j udgment, the finding of the amount due in the decree is mutually disregarded and a new accounting had.</p> <p>6. Pledges. In the absence of special equities a pledgee of personal' property will not be required to exhaust his security before enforcing his personal remedy upon the debt.</p> <p>7. -: Provision to Declare Debt Due: Notes. A note and a mortgage securing it, made contemporaneously, are to be construed together. Therefore, where a note is payable on or before a date named and the mortgage contains a provision that in certain contingencies, prior to that date, the mortgagee may elect to declare the whole amount due, held, that such provision in the mortgage authorizes the mortgagee upon the happening of such contingencies to proceed not only to foreclose the mortgage but also to enforce the personal liability upon the note.</p>

<p>1. Review: Failure to Enter Decree. This court will not review on appeal or error a decree rendered by the district court, prior to the formal entry of such decree upon the journal of the trial court.</p> <p>2. -: Memorandum of Decree. A memorandum for a decree made by a judge of the district court upon his calendar will not authorize a review of the case in this court before such decree is extended in due form and apt language upon the court journal.</p>

Error from the district court of Colfax county. Tried below before Marshall, J. The opinion contains a statement of the case. The company is not liable, because the building was unoccupied at the time of the fire. (White v. Phoenix Ins. Go., 20 Ins. L. J. [Me.], 900; Burlington Ins. Co. v. Gibbons, 19 Ins. L. J. [Kan.], 546; Lanoy v. Home Ins. Co., 19 Ins. L. J. [Me.], 878; Continental Ins. Co. v. Kyle, 19 Ins. L. J. [Ind.], 720; Fehsev. Couneil Bluffs Ins. Co., 18 Ins.

<p>Appeal: Appearance: Failure to Depend Before Justice A defendant, who has made a general appearance in an action, before a justice of a peace, may a .peal from a judgment against-him, even though he was not present at the trial, and did not contest the case in said court upon the merits.</p>

<p>1. Mortgages: Judicial Sales: Appointment op Master Commissioner: Discretion op Court. The district court has the power to appoint some proper disinterested person, other than the sheriff of the county, as master commissioner to make the sale of real estate under a decree of foreclosure. Such appointment rests in the sound discretion of the trial court, and its ruling will not be reviewed where no abuse is shown.</p> <p>2. Review: Final Order. The ruling of the district court denying plaintiff’s application for the appointment of a special master commissioner to make the sale of the mortgaged premises is not reviewable in this court prior to the rendition of a final decree of foreclosure.</p>

Error from the district court of Douglas county. Tried below before Ferguson, J. Neither the assignment of a lease nor the acceptance by the lessor of rent from the assignee releases a lessee from a covenant to pay rent. (Bailey v. Wells, 8 Wis., 39; Fletcher v. MoFarlane, 12 Mass., 43; Fort v. Jackson, 17 Johns. [N. Y.], 238; Walton v. Cronly, 14 Wend. [N. Y.], 64; Kunclde v. Wynick, 1 Dal. [U. S.], 305a; Barhydt v. Burgess, 46 la , 476.)

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

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

<p>Appeal from the district court of Douglas county. Heard below before Irvine, J.</p> <p>See opinions for citations.</p>

Error from the district court of Antelope county. Tried below before Robinson, J. See opinion for statement of the case. The imprisonment of plaintiff in error in the common-jail of Antelope county is unlawful, for the reason that the-district court of Antelope county could not acquire jurisdiction of the cause pending against plaintiff in error, or of his person, except with his consent. (Bill of Rights, sec. 11; State v. Knapp, 19 Pac.

<p>1. Voluntary Assignments: Chattel Mortgages. Where several chattel mortgages are made and delivered simultaneously, covering all the property of the mortgagor, to secure different creditors, leaving other creditors unsecured, such transaction does not constitute a voluntary assignment for the benefit of creditors, although there may have been an agreement among the mortgagees to share pro rata in the proceeds of the mortgaged property.</p> <p>2. Replevin: Chattel Mortgages: Evidence. In an action of replevin, where the plaintiff claims possession under a chattel mortgage, it is error to admit evidence tending to prove mere irregularities in the foreclosure of the mortgage by the plaintiff subsequent to the commencement of the action.</p> <p>3. Fraudulent Conveyances: Excessive Security. Where the value of property mortgaged largely exceeds the amount of the debt secured thereby, such fact is a badge of fraud as against creditors; but the question of fraud is one of fact to be addressed to the jury, and not of law.</p> <p>•4. Replevin: Pleading and Proof: Review. Where the plaintiff in replevin alleges an absolute ownership, and the evidence, received without objection, proves a special ownership through a chattel mortgage, the defense successfully interposed being that said mortgage was fraudulent as to creditors, the defendant cannot afterward, in proceedings by petition in error in this court, assert that there is a fatal variance between the petition and the pi o As.</p>

<p>Error from the district court of Gage county. Tried below before Bush, J.</p> <p>cited: Mitchell Winslow, 2 Story [U. S. C. C.j, 630; Langton v. Hortont 1 Hare [Eng. Ch.], 549; Seymour v. Canandaigua & N. F. R. Co., 25 Barb. [N. Y.], 284; Holly v. Brown, 14 Conn., 255; 2 Cook, Stock & Stockholders [3d ed.J, sec. 857; Pierce v. Emery, 32 N. H. 484; Coe v. McBrown, 22 Ind., 252; Raymond v. Clark, 46 Conn., 129; Buck v. Seymour, 46 Conn., 156; Phillips v. Winslow, 18 B. Mon. [Ky.], 431.</p> <p>cited: Herman, Chattel Mortgages, sec. 46, and cases cited; Pennock v. Coe, 23 How. [U. S.], 117.</p>

<p>1. Continuance. The provision of section 961 of the Civil Code, for continuance by a justice of the peace of causes pending before him for a period not exceeding ninety days, has no application to causes in the county court proper and not within the jurisdiction of the county judge as a justice of the peace.</p> <p>2. -. Causes pending in the county court are continued Jby operation of law from term to term until disposed of, and. the court will not lose jurisdiction thereof by reason of delay in bringing them to trial.</p>

Error from the district court of Keith county. Tried below before Church, J. See opinion for statement of the case. Defendant in error cannot repudiate its contract after receiving the benefits thereof, and the court erred in refusing to admit testimony to prove that the city received the benefit of the property purchased. (Clark v. Dayton, 6 Neb.,. 193; Follmer v. Nuckolls County, 6 Neb., 213; Grand Island Gas Co. v. West, 28 Neb., 852; Ward v. Town of Forest Grove, 25 Pac.

<p>Taxation: Railroad Property. By section 39 of the revenue law personal property of a railroad company outside of Us right of way is required to be listed for taxation by the authorities of the counties in which it is situated, without regard to the use for which it is designed.</p>

Heard below before Church, J. The opinion contains a statement of facts. A homestead, to be exempt, must be owned and occupied by a resident of this state. (Compiled Statutes, sec. 1, ch. 36 ; Bowker v. Collins, 4 Neb., 496.) When Mr. Mallard removed to Colorado with his family and there established his home, where he continued to reside for nearly two years, renting his former homestead in Nebraska, he abandoned his Nebraska homestead and acquired a residence in Colorado.

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

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

Error from the district court of Lancaster county. Tried below before Tibbets, J. The opinion contains a statement of the case. contending that the subscription was without consideration and void, cited: Livingston v. Rogers, 1 Cai.

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

<p>1. Review: Assignments of Error. An assignment of error as to the giving en masse of certain instructions will be considered no further than to ascertain that any one of such instructions is properly given. (Hiatt v. Kinlcaid, 40 Neb., 178.)</p> <p>2. -: -. An assignment in a petition in error, that the trial court erred in refusing to give a group of instructions asked, will he considered no further when it is found that the refusal of any one of such instructions was proper. (Hiatt v. Kinlcaid, 40 Neb., 178.)</p> <p>3, --: -. An assignment of error as to irregularities of the trial court in the preparation and giving of instructions, which assignment does not specifically designate the instruction or instructions complained of, the only allusion made thereto being by affidavits attached to the motion for a new trial, which were not further authenticated, nor incorporated in the bill of exceptions, will not be considered by this court.</p> <p>4. Fraudulent Conveyances: Intention: Question for Jury. Fraudulent intent in the execution of a chattel mortgage on a stock of goods, whereby certain creditors are preferred, is a question of fact and not of law, and one to he submitted to the jury for determination.</p> <p>5. -: Preferring Creditors. An intention to defraud cannot be inferred merely from the fact a preference was given to a certain creditor. (Jones v. Loree, 37 Neb., 816.)</p> <p>6. -: -: Chattel Mortgages. A debtor in failing circumstances may lawfully prefer one or more of his creditors, and secure such creditors by mortgage or conveyance absolute, provided the transaction is in good faith and not made with intent to defraud other creditors. (Costello v. Chamberlain, 36 Neb., 45.)</p> <p>7. Review: Sufficiency of Evidence. The evidence examined, and held sufficient to support the verdict.</p>

Error from the district court of Buffalo county. Tried below before Hamer, J. The facts are stated by the commissioner. The failure of the assured to comply with the requirement* concerning a watchman avoids the policy. (First Nat. Bank of Ballston v. Insurance Company of North America, 50 N. Y., 45; Ripley v. JEtna Ins. Co., 30 N. Y., 136; Glendale Woolen Co. v. Protection Ins. Go., 21 Conn., 19; New York Belting & Packing Co. v. Washington Fire Ins.

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

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

<p>Error from the district court of Lancaster county. Tried below before Hall, J.</p> <p>cited : Mann v. Welton, 21 Neb., 541; People v. Me Clay, 2 Neb., 8; State v. Cunningham, 6 Neb., 92; Maxwell, Pleading & Practice, p.488; Broadwaterv. Jacoby, 19 Neb.,77; First Nat.Bank of Omaha v. Bartlett, 8 Neb., 319; Omaha Horse R. Co. v. Doolittle,7 Neb., 481; Pope v. Hooper, 6 Neb., 178; Shortel v. Young, 23 Neb., 408.</p> <p>cited: Hamilton v. Fleming, 26 Neb., 240.</p>

<p>Evidence Contradicting Terms of Note. Evidence of a parol agreement entered into by the makers and payee of a promissory note contemporaneously with or previous to its execution, whereby it was attempted to be shown that such note was not to become due according to its plain terms, but that its collectibility depended upon the happening of an event in the future, was incompetent, and the jury was properly instructed to give it no consideration.</p>

<p>Error from the district court of Antelope county. Tried below before Kinkaid J.</p>

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

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

<p>Appeal from the district court of Antelope county. Heard below before Allen, J.</p> <p>The action cannot be maintained on account of laches. (North v. Platte County, 29 Neb., 447; Montgomery v. Noyes, 11 S. W. Rep. [Tex.], 138; Terry v. Fontaine, 2 S. E. Rep. [Va.], 743; McCartin v. Traphagan, 11 Atl. Rep. [N. J.], 165; Barnett v. Barnett, 2 S. E. Rep. [Va.], 733; Chamberlain v. Town of Lyndeborough, 14 Atl. Rep. [N. H.], 865; Code of Civil Procedure, sec. 14; Alexander v. Orerton, 22 Neb., 229.)</p> <p>Taxes must be paid in money as provided by law. Collectors cannot receive check in payment. (Cooley, Taxation [2d ed.], 452; 2 Desty, Taxation, 694; Ediott v. Miller, % Mich., 132; Cedar County v. Jenal, 14 Neb., 254.)</p> <p>The legislature intended to do away with the common law proof of payment with reference to taxes, and to provide proof by receipt, or by the entry of payment in the tax books, and no other mode of proof is allowable. (Consolidated Statutes, secs. 3193, 4002, 4006.)</p> <p>The appellees were not guilty of laches. (Boman v. Wathen, 1 How. [U. S.], 189; Jones o. Lloyd, 117 111., •597; Bausman v. Kelley, 38 Minn., 197; Napton v. Leaton, 71 Mo., 358; Platt v. Plait, 58 N. Y., 646; Sedlak y. Sedlak, 14 Ore., 510; Larzelere v. Starkweather, 38 Mich., 96; Learned v. Foster, 117 Mass., 365.)</p> <p>When the taxpayer attends at the office of the proper officer and pays to such officer the amount of his taxes and specifies the purpose for which the money is paid, he has performed the only duty the public requires of him in that regard; and the fact of such payment may be established the same as the payment of any other debt or obligation. {Rambert v. Cohem, 4 Esp. [Eng.], 213; Jacob v. Lindsay, 1 East. [Eng.], 460; Keene v. Meade, 3 Pet. [U. S.], 7; Dennett v. Crocker, 8 Me., 239; Kingsbury v. Moses, 45 N. H., 222; Berry v. Berry, 17 N. J. Law, 440; Leath•erbury v. Bennett, 4 Har. & McH. [Md.], 392; Ford v. Smith, 5 Cal., 314; Hinchman v. Whetstone, 23 111., 185; Adams v. Beal, 19 la., 61.)</p>

<p>1. Negligence: Question eoe Juey. The existence of negligence should be proved and passed upon by the jury as any other fact. It is improper to state to the jury a circumstance or group of circumstances as to which there has been evidence on the trial and instruct that such fact or group of facts amount to negligence per se. At most, the jury should be instructed that such circumstances, if established by a preponderance of the evidence, are properly to be considered in determining the existence of negligence. Missouri P. R. Co. v. Baier, 37 Neb., 235, followed and reaffirmed.</p> <p>2. -: Insteuctions. The court may say what act or omission of a party is evidence of negligence, but it is for the jury to say what conclusion such evidence warrants. Omaha Street B. Co. v. Craig, 39 Neb., 601, followed and reaffirmed.</p>

Error from the district court of Sheridan county. Tried ■below before Bartow, J. The mortgage of chattels vests in the mortgagee the legal title to the things mortgaged. (Robinson v. Fitch, 26 O St., 659; Adams v. Nebraska City Nat. Bank, 4 Neb., 370; Marseilles Mfg. Co. v. Biorgan, 12’ Neb., 69; Nelson v. Garey, 15 Neb., 535; Tallón v. Ellison, 3 Neb., 74; Tompkins v. Batie, 11 Neb., 151; Cobbey, Replevin, sec. 60, and cases cited.)

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