Volume 41 — Nebraska Reports

Error from the district court of Dodge county. Tried below before Marshall, J. , . ; A statement of the facts appears in the opinion. The plaintiff has entirely failed to prove any actionable negligence on the part of the defendant’s employes in any respect stated in the petition, or to account for the falling or bursting of the piece of coal mentioned therein.

<p>1. Husband and Wife: Suretyship. In this state a married woman may contract as surety for her husband. Smith it. Spaulding, 40 Neb., 339, followed.</p> <p>2. Married Women: Sueety foe Husband: Consideration. The contemporaneous lending of money to the husband is á sufficient consideration for the wife’s signing a note evidencing such indebtedness, and a .clause in such a note pledging her separate estate is binding upon her, although she personally xer ceived no consideration therefor.</p>

<p>Review: Evidence: Instructions. The only questions arising relating to the sufficiency of the evidence and the ápplicabilty of certain instructions thereto, it was held that.the evidence was sufficient to sustain the verdict, and the instructions applicable to the evidence.</p>

<p>1. Fire Insurance: Sufficiency of Notice of LÓsS." Where - : 'a policy of insurance simply requires that notice Of los'ft shall he given to the company át a specified office in writing,' and that ¡>i ^payment,’shal,l be made upon receipt of proper proof,.apd dpps , not, specify, ytherwi^se of what such notice and.proof shall cop- < ’ ' sist^ if' notice of-' the loss be sent in writing to the' office specified (1 ■'■’ '»hd:the'company makes no objection on accoUritfif tile forth of the notice and makes no demand for' other or further proof, sfich notice is a sufficient compliance with the terms of the policy.</p> <p>2. -: -: Oral Notice: Agency. This rnleyh'él'd-’ to apply where oral.notice was given to the local agent of the.com- " pany and lie, at the request of the insured, communicated the •' fact of the loss in writing to the specified office of the éompáhy, < k, it being held that; without regard to his authority as agentj:of , .the company, .the facts proved constituted him-the:agent ,pf th6 ..insured to give notice of loss. , .</p> <p>3.. ——;—: Authority of Agents: Waiver. A clause in apolipy prohibiting agents from waiving any of its terms or conditions does not prevent the insured from showing that the cómpáüy, ■ through its' proper agents, accepted acts of the insured -as'a Sufficient compliance with the terms of the policy-. • . •-j ...</p> <p>4. Record for Review: Transcript. A transcript of’the rec^ . ord authenticated by the certificate of the clerk of the- district court is conclusive evidence of the contents of the pleadings upon which the case was tried.</p> <p>5. Fire Insurance: Action on Policy: Limitation: Estoppel. Where a policy' provides that no action shall he sustáined ünless ■' • ''commenced within six months after a loss shall occur,if the:in- ’ sured is reasonably induced by the conduct or statements of the , company’s agents-to believe that the claim will be paid .without . suit and therefore withholds bringing suit until after that period, the insurer' will in such case be estopped from claiming the ben- : efit of such clause in the policy. ' '<•’ :</p> <p>6. Trial: Review. Cértain rulings of the trial court on' the ad-;i:'mission of evidence examined', and held not to be erfoneons.</p>

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

<p>1. Chattel Mortgages: Debts of Third Persons: Voluntary Assignments. A chattel mortgage is not void as constituting a prohibited assignment for creditors solely for the reason that it is made to secure the payment of debts to third persons as -well as to the mortgagee. Hamilton d. Isaacs, 34 Neb., 709, and-Jones v. Loree, 37 Neb., 816, followed.</p> <p>2. Review: Verdict: Sufficiency of Evidence. The discretion of a trial judge to set aside a verdict as not sustained by the evidence is greater than that of an appellate court. Where a verdict has for its support substantial, competent evidence, and the trial judge has refused to set it aside as being without support, this court will not disturb the verdict, although the evidence, upon examination, may seem of doubtful credibility.</p> <p>3. i-: Trial: Instructions: Assignments on Error. The objection that the trial judge failed to instruct the jury upon the law of the case is not raised by the assignment that the court erred in giving such instructions as were given, those instructions upon the subjects to which they related being correct.</p>

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

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

<p>Heview. This case involves questions of fact only, and the.'conclusion of the trial court being in accordance with the evidence, the judgment will not he disturbed.</p>

<p>1. Contracts: Construction. Where the parties to a contract have, with a knowledge of its terms, given it a particular construction, such construction will generally he adopted by the courts in giving effect to its provisions.</p> <p>2. Chattel Mortgages. A mortgage of personal* property. with possession and power of sale in the mortgagor, for his own ¡benefit, is void as to his creditors and subsequent purchasers in good faith.</p> <p>3.-¡ 'Possession by Mortgagor: Presumption of Fraud. A chattel mortgage, where the mortgagor retains possession of the property conveyed, is, under section 11, chapter 32, Compiled Statutes, entitled “Frauds,” presumptively fraudulent as to creditors of the mortgagor and subsequent purchasers in good faith.</p> <p>4. — .....: -: -: Burden of Proof. In all such cases the burden is upon the mortgagee, or those claiming through him, to overcome the presumption of fraud by proof that the - . mortgage was executed in good faith.</p>

<p>1,-Trespass by Officer in Execution of Writ: Liability OF Plaintiff. "One who delivers to an officer, a valid writ, without directions as to the manner of its service, will not he liable for torts committed by the latter while engaged in the execution thereof. ' 1</p> <p>2. -: — : -. But one who, with a knowledge of the facts, ad- ■ vises an abuse of a process of court by an officer, such as a' tres- . ■ I' pass against the person or property of another, or subsequently ratifies suoh unlawful act, will be deemed a wrong-doer from the . beginning.</p> <p>3.. ■-: -: Damages. Compensation for mental suffering of the injured party is a legitimate-element of damage in actions 'for trespass to property where the unlawful act is inspired by fraud, malice, or like motives.</p> <p>4.---: -: -. But in cases where the wrong consists in . i the. taking or destruction of personal property without fraud, malice, or other aggravating circumstances, the measure of damage is compensation for the plaintiff’s loss, which is ordinarily the value of the property with such incidental damage as may ■ ■ -be shown to be the natural and proximate result of the act .: > charged. "</p>

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

Heard below before Bartow, J. See opinion for statement of the case. The testimony shows that appellees were not, at the time of levying the attachment, actually residing upon the property claimed to be a homestead, and had not been so residing thereon for more than four months previous to that time. Actual occupancy is necessary in order to make the homestead exemption available to a claimant.

<p>1. Chattel Mortgages: Description of Property. A description in a chattel mortgage which suggests inquiry, by the aid of which a party will be able to ascertain the location of property and to otherwise identify it, is sufficient.</p> <p>2. -: -: Evidence. The description in the mortgage, under which one party claimed in this case, held sufficient to create a lien on the property described, in favor of the mortgagee or his assigns, and the evidence sufficient to warrant a finding that the party who afterwards purchased the property had actual notice of the lien created by the mortgage.</p> <p>3. Instructions: Review. Instructions to a jury should be considered together and as a whole, and their meaning and effect determined from their construction when so considered, and not by selecting and referring to detached paragraphs or portions alone, and when thus weighed they are found to be correct, no error can be predicated upon the action of the court in giving them.</p> <p>4. Instructions given and refused by the court examined, and held no error in either the giving or refusing.</p>

<p>Payment: Conclusiveness of Receipt as to Strangers. As against strangers thereto, a receipt is incompetent evidence of the payment thereby acknowledged; for, as against such strangers, such receipt is. but the hearsay declaration of the party who signed it, made without' opportunity for his cross-examination, and independently of the sanction of his oath.</p>

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

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

<p>1. Fraudulent Conveyances: Evidence: Question fob Juey. Where the existence of a fraudulent intent in making and receiving a transfer of a debtor’s property is to be determined by evidence collateral to the writing, whereby was effected the alleged fraudulent transfer, such question is determinable alone by the jury. Following Houck v. Heinzman, 37 Neb., 463.</p> <p>2. -: —*-: -: Review. Where a bill of sale of a stock of goods was made by a debtor in failing circumstances to one of his creditors, who 'took the bill of sale with the agreement that he was, to receive the property, make sales from it, and with the proceeds reimburse himself for antecedent indebtedness due him, and for advances made to discharge levies upon the said stock, and after such reimbursements were complete to return to the debtor whatever should remain of such stock, held, that a verdict sustaining the contention that such transfer was fraudulent as against existing creditors of the maker of the bill of sale should not be disturbed.</p> <p>3. Depositions: When Admissible in Evidence. Whether or not the deposition of a witness should be received in evidence must be determined from the facts in existence at the time of the trial, and if at that time it is shown that the witness does not reside in, or has removed from, the county wherein the trial is proceeding, his deposition, otherwise unobjectionable, is receivable in evidence. •</p>

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

Error from the district court of Douglas county. Tried below before Wakeley, Doane, and Davis, JJ. The opinion contains a statement of the case.

<p>Landlord and Tenant: Injuries to Property: Burden of Proof. A land-owner sued his tenant for damages for injuries inflicted by her on his property during her occupancy thereof. The tenant answered that whatever injury she had done to the property was by the direction and permission of the land-owner. To this he replied by a general denial. The court instructed the jury: “The burden of proof is upon the plaintiff to make out his case.i He must satisfy you by a preponderance of the evidence that the things complained of were done by the defendant without authority from him and the amount of damage done.” Held, Error; that the defense was an affirmative one, and the burden of proof was upon the defendant to prove it. Williams v. Evans, 6 Neb., 216, followed.</p>

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

<p>L Sales: Delivery of Goods to Carrier: Effect. The general rule is that the delivery of goods to a .carrier consigned to the purchaser thereof is a delivery to such purchaser, and that the title of the goods so delivered to the carrier at once vests in the purchaser; but this rule is not a universal one, and whether applicable in any case, depends upon the facts, circumstances, and contract between the seller and the purchaser in the-case.</p> <p>2. -: Estoppel. It seems that a defendant sued on a contract for goods of a. certain quality and price is estopped from interposing the defense that the goods were inferior in quality to those he had contracted for when it is shown that he, without protest or objection, converted to his own use the goods fur- • nished him under said contract, and the defect in such goods was apparent on inspection.</p> <p>3. -; — : Evidence. The evidence in this case examined, and held to support the findings of the jury, that the coal sued for herein was to be delivered at Grand Island, and that the coal delivered was inferior in quality to that contracted to be delivered.</p>

<p>1. Master and Servant: Negligence. The evidence in this case examined, and held to support the findings of the jury, that the injury sued for herein by the defendant in error was not caused or contributed to by his negligence, but resulted from the negligence of the employes of the plaintiff in error.</p> <p>2. Personal Injuries: Damages. The law, for a temporary injury, awards damages to the party injured through the negligence of another, not as a punishment of the negligent party, but as compensation for the pecuniary loss sustained and the pain and suffering endured by the injured party.</p> <p>3. Negligence: Personal Injuries: Review. It is only after the most careful deliberation that this court will reduce the amount awarded by a jury to a party who has been injured through the negligence of another; and not then if such award has for its support sufficient competent evidence.</p> <p>4. -: -: -: Remittitur. The amount awarded the defendant in error by the jury in this case held not supported by the evidence and a remittitur ordered.</p>

<p>1. Negligence: Railroads: Evidence. Railroads cannot be operated without noise; and if teams are frightened by the usual noise arising from a prudent and proper management of a train or engine, the railroad company is not liable for an injury resulting from said noise; and whether the noise complained of resulted from a prudent operation of the railroad or its appliances is a question to be determined from the circumstances and other evidence in the case. That the noise complained of was unnecessarily made is not of itself evidence that its making was negligence. To be evidence of negligence the noise must have been made under such circumstances and surroundings as to time, place, and situation of the parties as to show neglect to exercise that degree of care which a reasonable man would have exercised under the circumstances. Omaha & B. V. B. Co. v. Brady, 39 Neb., 27, followed and reaffirmed.</p> <p>■2. -: -: -. The evidence in this case examined, and held to support the finding of the jury that the proximate cause of the injury to plaintiff was his own negligence and not the negligence of the agents of the defendant in error.</p>

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

<p>1. Error Proeeediügs: Review: Motion foe New Trial. Errors alleged to have occurred upon the trial of a case in the district court will not he reviewed here on petition in error, unless the record discloses a motion for a new trial in the district court and a ruling thereon. This rule applies as well to equity-cases brought here by petition in error as to cases at law.</p> <p>2, Mechanics Liens: Landlord and Tenant : Cost of Improvements : Ratification. Where a tenant ereets buildings upon leased property without authority from the landlord, and the landlord afterwards acknowledges the expense of erecting .such buildings as a proper charge by the tenant against him, and. settles w^h the tenant upon that basis, such facts constitute a ratification of the tenant’s acts, and render the landlord’s estate subject to a mechanic’s lien arising out of such improvements.</p> <p>3.' --: -: PAYMENT. In such case the payment by the landlord to the tenant of the cost of the improvement does not defeat the lien.</p> <p>4. Limitation of Actions: Pleading. The defense of the statute of limitations, if not raised either by demurrer or answer, is waived, and when sought to be raised by answer, in order to preserve the defense, the answer must be good against demurrer.</p> <p>•5. -: -. An answer alleging merely that the action was not brought within the time required by law, or until after the lien had expired by lapse of time, states conclusions merely and is insufficient.</p>

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

<p>1. Trial: Defense of Insanity: Opening and Closing. The plaintiff alleged the payment to a third person of specific sums of money for the benefit and at the request of the defendant. The answer made no denial of the allegations of the petition, but pleaded insanity as a defense. Held, That under this state of the issues the defendant was required to first introduce testimony and was entitled to the opening and close of the case.</p> <p>2. Insanity: Action on Contract. The defense of insanity may be interposed to an action upon a contract without restoring what the insane person received thereunder, in cases where the ability does not remain of restoring what was received in specie.</p> <p>3. Instructions: Review. Instructions will not be reviewed unless the record discloses jfchat exceptions were taken thereto, and. where error is assigned upon the refusal of a group of instructions en masse, they will he considered no further than to ascertain that some one of the group was properly refused.</p>

<p>1. Conversion: Pleading. In order to state a cause of action for conversion it is sufficient to allege ownership generally without stating how such ownership was acquired.</p> <p>2. Tenancy in Common. Where there is a contract between the owner of land and another person whereby such other person is to cultivate the land and harvest the hay for a share thereof, but where the relation of landlord and tenant is not created, and there is no specific agreement as to the possession of the land, the parties become tenants in common of the grass and hay.</p> <p>3. Trover and Conversion. In such a case if one of the parties to such contract seize the whole crop either before or after severance, and dispose of it in denial of the other’s rights, the other may maintain trover for his share.</p> <p>4. Special Findings: Discretion of Court: Review. The submission of questions to the jury for special findings is a matter within the discretion of the trial court, and the submission or refusal to submit such questions will not be reviewed except for abuse Of discretion.</p>

<p>1. Assignments of Error: Instructions: Review. An . assignment of error as to the giving en masse of certain instructions will be considered no further than to ascertain whether any one of such instructions was properly given. Hiatt v. Kinkaid, 40 Neb., 178, followed.</p> <p>2. Ifegligenee. If one attempts to pass over a place of danger, the , law requires him to exercise caution commensurate with the obvious peril; but this means that the law only requires of the party to exercise ordinary care, the danger and his knowledge thereof considered.</p> <p>3. Municipal Corporations: Liability for Negligence of Contractor. "Where a municipal corporation is vested by law with authority to construct a public improvement and lets the building of such improvement to a contractor to be by him constructed in such manner as is prescribed by the corporation, such contractor becomes, by virtue of such contract, the agent of the corporation, and it will be liable for an injury resulting from the negligence of such contractor in the manner of the construction of such improvement.</p> <p>4.'-: Duty to Keep Sidewalks and Streets in Repair. . A municipal corporation is charged by law with the duty of at all times keeping its streets and sidewalks in a reasonably safe condition for travel by the public.</p> <p>5. -: -. No municipal corporation, by any act of its own, can devolve this duty on another so as to relieve itself from a liability resulting from its failure to perform such duty.</p> <p>6. -: Liability for Negligence of Contractor. A municipal corporation, by contracting with another to construct an improvement for it, does not and cannot thereby abdicate its control over the stieets or public grounds of such corporation, nor thereby exonerate itself from liability for an injury result-, ing from the negligence of such contractor in the manner of the ' performance of his contract.</p> <p>7. -= — : Improvement of Streets: Notice of Danger. If a , municipal corporation rightfully causes an improvement to be constructed or other work to be done, whether by an independent contractor or otherwise, it is bound to take notice of the character of the work and its condition, whether safe or dangerous; and is bound to take notice of the condition, whether safe or dangerous, of its streets and grounds as affected by the prosecution or performance of suqh improvement or work.</p> <p>8. —;-: -. City of Omaha v. Jensen, 35 Neb., 68, followed and reaffirmed.</p> <p>8. -: Liability for Negligence of Contractor: Estoppel. The legal basis of the liability of a municipal corporation for an injury sustained by the negligence of an independent contractor constructing a public improvement for such corporation examined, and declared to be not necessarily based upon the doctrine of respondeat superior, but upon the doctrine that a municipal corporation, charged by law with the performance of a public duty, when sued for an injury for its failure to perform such duty, is estopped from alleging that it had delegated the performance of such duty to another, or had by contract exempted itself from liability for such injury resulting from its failure to perform such duty.</p>

Exceptions to the decision of the district court for Lancaster county, Strode, J, presiding. Filed under the provisions of section 515 of the Criminal Code. • .

<p>Appeal from the district court of Madison county. Heard beiow before Powers, J.</p>

<p>1. Review: Assignments of Error: Bill of Exceptions. This court cannot review errors alleged to have been committed by a district court in the admission and rejection of evidence unless such errors are preserved in a bill of exceptions and specifically alleged in a petition in error here.</p> <p>2. Assignments of Error. If a litigant is of opinion that atrial court erred in its ruling, and desires to review such error in this court, he should specifically state in his petition in error here the identical action of the district court which he claims was erroneous.</p> <p>3. Appeals from the decision of a county board should be entered, tried, and determined in the district court the same as appeals from justices of the peace.</p> <p>4. Appeal from County Board: Issues in Appellate Court: Review. A district court should never proceed with the trial of an appeal from a county board, until the parties to such appeal have made up the issues therein, by filing the proper pleadings in the case; and where such an appeal is tried in the district court without pleadings, and brought here on error, this court will not examine the evidence for the purpose of ascertaining what the issues litigated were.</p> <p>5. Costs: Motion to Retax: Review. For this court to review an error alleged to have been committed by a district court in rendering judgment against a party for costs, the party against whom the j udgment is rendered must file a motion in the district court to retax such costs and then come here from the ruling of the district court upon such motion.</p> <p>6. Review: Assignments of Error: Costs. Wilkinson v. Carter, 22 Neb., 186; Hiatt v. Kinkaid, 40 Neb., 178; Jewett v. Osborne, 33 Neb., 24, and Vincent v. State, 37 Neb., 672, followed and reaffirmed.</p>

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

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

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

<p>1. When no motion for a new trial is made in an equity case, the sufficiency of the evidence to sustain the finding will not be reviewed on petition in error.</p> <p>2. Review: Bill oe Exceptions. This court will not consider an assignment in a petition in error that the verdict of the jury, or the finding of the court, is not supported by the evidence, unless the evidence is before the court by a proper bill of exceptions.</p>

<p>1. Evidence: Subscribing Witnesses: Signatures. In case a subscribing witness is absent from the county in which the suit is pending, or if he denies or does not recall the execution of the instrument to which his name is subscribed as such witness, its execution may be established by other competent evidence.</p> <p>2. Sufficiency of Evidence: Instructions. Held, That the evidence sustains the verdict, and that there is no error in the charge of the court.</p>

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

<p>Dismissal: Fees of County Officers: Mandamus. This canse is governed by the opinion filed herewith in State, ex rel. Board of Supervisors of Bolt County, v. Eazelet, 41 Neb., 257.</p>

<p>1. Indictment and Information: Objections : Waiver. Objection to an indictment or information on the ground of duplicity must be made before verdict, or it will be held to -have been waived. '</p> <p>2. -. Different criminal acts which constitute parts of the same transaction, such as burglary with intent to steal particular property, and larceny of the property described, may be charged in the same indictment or count thereof.</p>

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

- Heard below before Irvine, J. The plaintiff cannot maintain this suit to quiet title because he has neither the legal title nor the actual possession of the land.

<p>1. Statutes: Constitutional Law. Courts will not hesitate t# declare invalid acts of the legislature when found to be in substantial conflict with the fundamental law of the state.</p> <p>2. -: -. The fact that a statute is within the letter of the constitution is not sufficient. It must also be in substantial compliance with the spirit and purpose thereof.</p> <p>3. -: -. An act which violates the true meaning and intent of the constitution and is an evasion of its general express or plainly implied purpose is as elearly void as if in express terms prohibited.</p> <p>4. Constitutional Law: Permanent School Fund: Transfer to Other Fund. The prohibition of section 9 of article 8 of the constitution, against the transfer of the permanent school fund to any other fund, is an express limitation upon the powers of the legislature; and the restraint thus imposed cannot be disregarded upon the pretense of a supposed necessity resulting from a change of conditions, or in deference to the judgment of the legislature.</p> <p>5. —;-: Transfer of Funds: State Treasurer. By the act of 1891, amendatory of section 25, article 1, chapter 80, Compiled Statutes, it was provided that the state treasurer should pay warrants drawn against other funds out of the permanent school fund, and hold them as an investment of the permanent school fund. Held, To contemplate a transfer of that fund to other funds, and, therefore, in conflict with section 9, article 8, of the constitution.</p> <p>6. Permanent School Fund. By the provision of the constitution above cited the state is made the trustee of the permanent school fund.</p> <p>7. -: Investment in State Warrants. If, as trustee for said fund, the state desires to invest the same in state warrants, it '..must do so on terms of equality with other investors, and cannot enforce the sale to it by holders of such securities.</p> <p>8. State Treasurer: Liability for Transfer of Funds. An act of the legislature for the transfer of the permanent school fund to the general fund of the state is no protection to the treasurer, and the latter is liable to the school fund for all money disbursed : inpursuance of such' an act. • ■ ' ’</p> <p>9. --: Duty to Register Warrants. It is the duty of the treasurer, on demand of the holder, to register state warrants in the order presented, when not paid for want of funds.</p> <p>10. -: Warrants on General Fund: Rights of Holders. ...... The holder of general fund warrants is not required to receive in ' " payment thereof money known to belong to the permanent school fund, where such payment would amount to a misappro- . . priation of such fund by the treasurer.</p>

<p>1. An assignment of error, as to the admission of incompetent, irrelevant, and immaterial evidence at the trial of a cause, will not be considered in this court unless the particular rulings so claimed to be erroneous are specifically pointed out in an assignment of error in the petition in error.</p> <p>2. The verdict of the jury on the trial of a cause, based upon. conflicting testimony, will not be disturbed by this court unless manifestly wrong.</p> <p>3. Estoppel: Sales: Attachment: Replevin. Where a stock of boots and shoes were ordered shipped to a firm, unknown to them, by one claiming to act as their agent, but who was in noway authorized so to act, and such firm received and paid the freight on said stock, and, after holding them for about thirty days, allowed the party so ordering the goods to remove them from their store and to another town, and a creditor of a firm, of which such party was formerly a member, attached the goods, and upon inquiring of the firm making the original shipment was told by a member of the firm that they claimed no-title to the goods, and they would make no interference in the attachment proceedings and further advised the prosecution of the attachment proceedings to judgment and sale, held, that such statements made to the representative of the attaching creditors, where he, on the strength of said statements, incurred in their behalf additional expenses in prosecuting the proceedings in attachment, worked an estoppel of the shipper of said' goods, and concluded the firm from setting up a title to them in a subsequent action of replevin to recover the possession of the goods from the officer holding them by virtue of the levy of writs issued in said attachment proceedings.</p>

<p>1. Bsview: Motion for New Trial: Affidavits: Bill of Exceptions. Affidavits used as evidence on the hearing of a motion in the district court will not be considered in this court in reviewing the action of the lower court in passing upon the motion unless they are presented in the form of a bill of exceptions.</p> <p>2. -: -: -: -. Where a motion for a new trial, on the ground of newly discovered evidence, is overruled, the party who presented the motion is not entitled to a review of the decision of the trial court as to this ground of the motion unless all the testimony (in this case in the form of affidavits) used on the hearing of the motion is preserved and set out in the bill of exceptions.</p> <p>3. Pleading. All material allegations of new matter contained in an answer are admitted and must be taken as true if no reply is made to them.</p>

<p>Conflict of Law's: Breach of Covenant: Lex Loci. Where-land situate in the state of Iowa was sold and the conveyance therefor was executed in the state of Nebraska, and there had been several prior conveyances, each of which contained a covenant of warranty against incumbrance, and of each of which: there was the same existing breach, held, that the law of Iowa, or the law of the place in which the land is situate, will govern the rights of the parties in the enforcement of the covenant, in so far as it relates to the question of the covenant running with the land.</p>

<p>1.' Instructions: Harmless Error: Review. A new trial will not be granted because of the action of the trial court in giving an instruction, if erroneous, where it appears from the verdict rendered by -the jury that the party complaining of the giving of the instruction has not been prejudiced thereby.</p> <p>2. Costs: Procedure to Review Judgment For. The general rule is that in order to obtain a review of a j udgment for costs, ' it is necessary that a motion to retax the costs be made and presented to the lower court, and its ruling had thereon.</p> <p>.3. Instructions: Review. It is error to give an instruction which is not predicated upon and pertinent to the issues in the case as joined by the pleadings and applicable to the testimony adduced.</p> <p>4. Damages: Services: Part Performance of Contract: Instructions. An instruction given by the court on its own motion examined, and held not based upon and applicable to the pleadings and testimony, and further erroneous, in that it stated an incorrect rule or measure of damages, and to be calculated to mislead the jury, and prejudicial to the rights of plaintiff in error.</p>

Error from the district court of Cuming county. Tried below before Norris, J. When the jury retired they took with them into the jury . room without plaintiff’s consent, a note which had not been introduced in evidence. This was shown by affidavit to be prejudicial to plaintiff. The court erred in refusing a new trial for misconduct of the jury.

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

Heard below before Wakeley, J. The opinion contains a statement of the case. The agreement, although not in writing, is such as a court of equity will enforce. (Briton v. Van Cott, 33 Pac.

<p>Appeal from the district court of Douglas county. Heard below before Wakeley, J.</p> <p>Ruth v. Lowrey, 10 Neb., 272; Miller v. Hurford, 13 Neb., 13; Towle v. Molt, 14 Neb., 227; Wright v. People, 4 Neb., 4! 0; liassett v. Curtis, 20 Neb., 164; Garrison v. Auttman, 20- Neb., 314; Auttman v. Leahey, 24 Neb., 289; Plummer v. Shell-horn, 24 Neb., 535; Olds Wagon Co. v. Benedict, 25 Neb., 375; White v. Woodruff, 25 Neb., 804; Otoe County v. Mathews, 18 Neb., 470.</p> <p>There is a presumption of law in favor of the due performance of official duty by public officers where such duty is enjoined upon them by law. (Taylor v. Wilson, 17 Neb., 88.)</p>

<p>1. Larceny: Sufficiency of Proof: Review. On the trial of this ease the only questions which arose worthy of consideration were as to the sufficiency of the proof to justify a conviction, upon full consideration of which it is found that the verdict of conviction was fully justified.</p> <p>2. Criminal Law: New Trial: Juror’s Knowledge of Character of Accused. Ordinarily, the discretion of the trial judge in overruling a motion for a new trial will not he disturbed when the sole grounds for said motion are admissions of a juror as to his knowledge of the character of the accused, when such ■ admissions have no reference to the facts tried, especially when upon his voir dire examination such juror had answered that he had no bias or prejudice which would prevent impartial action on his part.</p>

Error from the district court of Gage county. Tried below before Hastings, J. The facts are stated by the commissioner. Church property which is used exclusively for religious purposes is not exempt under section 2, article 9, of the constitution, supplemented by section 2, article 1, chapter 77, Compiled Statutes, from special assessments for local improvements in cities of the second class having more than five thousand and less than twenty-five thousand population.

<p>Account Stated: Sufficiency of Evidence. Where plaintiff sued on an account stated, and defendant denied that an account had been stated, but admitted that there was due to plaintiff a less amount than claimed, the finding of the jury sustaining the • defendant’s averments will not be disturbed when, as in this case, they are sustained by competent evidence, no error of law having occurred on the trial.</p>

<p>Larceny: Sufficiency of Evidence. The evidence in this case held not to have justified a. conviction of plaintiff in error of the crime of larceny, as charged in the information against him. ,</p>

<p>1. Negligence: Collision on Street1: Personal Injuries: Evidence. The verdict in this case was sustained by,ample evidence as to all points in issue. A review; of it is .therefore unnecessary.</p> <p>2. Instructions: Review: Assignments oe Er^or. .Where the assignments in the petition in error challenge the correctness in group of any of the trial court’s rulings'either as to the giving or refusing to give instructions, no consideration of such assignment can he had in this court further than to ascertain that the challenge is not well founded as to any instruction in the group in respect to which such assignment is made.</p>

The case is stated in the opinion of Commissioner Ryan. The Construction Company should be allowed for the full amount agreed upon in bonds for building the first one hundred and fifty miles of road. Held: to enter into such a contract. (Bien v. Bear River & Auburn Water Mining Co., 20 Cal., 602; Templin v. Chicago, B. & P. R. Co., 73 la., 548; Taylor, Corporations, sec. 236;.

<p>1. Injunction: Principal and Surety. A court of equity, in a proper case, will restrain the sale of the property of a surety for the satisfaction of a judgment against him, when it appears that the principal debtor has sufficient property liable to execution within the jurisdiction of the court for the satisfaction of such judgment, at least until after the property of the principal debtor has been exhausted.</p> <p>2. -: -- It seems that a court of equity, upon the application of a surety in a judgment, will restrain the sale of such surety’s property for the satisfaction of such judgment until the property within the jurisdiction of the court belonging to his co-surety has been exhausted, when it appears that such surety incurred the obligation on which the judgment is based, at the request of the co-surety and upon his promise to indemnify and save him harmless by reason thereof.</p> <p>3- -: Executions: Principal and Surety. Where the liabilities of sureties in a judgment are all equal, and where the relations between them are not such that one surety is surety or guarantor for the other, a court of equity will not, in any manner, assume to control an officer holding an execution for the satisfaction of a judgment, and will not direct whether he levy the execution upon the property of all the sureties or satisfy the entire judgment out of the property of one of them.</p>

<p>1. Review: Error Proceedings: Failure to Point Out Error. It is no part of the duty of this court to search a record for the purpose of ascertaining if there is error in it. On the other hand, every reasonable presumption will be indulged in favor of the correctness of the judgment of a district court, and any ruling of that court, alleged to be erroneous, must be specifically pointed out to be reviewed here.</p> <p>2. Principal and Surety. Before a surety can recover of his principal, because of his suretyship, he must first have paid the debt of his principal or some part thereof. Stearns n. Irwin, 62 Ind., 558, followed.</p> <p>3. New Trial: Joint Motion: Review. The rule of this court is that a motion for a new trial is indivisible, and when made jointly by two or more parties, if it cannot be allowed as to all it must be overruled as to all. Dorsey v. MeOee, 30 Neb., 657, followed.</p> <p>4. Statute of Frauds: Promise to Answer for Debt of Another. The verbal promise of A to B to indemnify him if he will become surety for C for a debt of the latter to D is not a promise on the part of A to answer for the debt of C, within the meaning of subdivision 2, section 8, chapter 32, Compiled Statutes, 1893. (</p>

Error and appeal from the district court of Douglas county. Heard below before Irvine, J. The facts are stated by the commissioner. The architect was not entitled to a mechanic’s lien. (Comp. Stats., secs. 1, 3, ch. 54; Bank of Pennsylvania v. Gries, 35 Pa. St., 423; Price v. Kirk, 90 Pa. St., 47; Bush v. Able, 90 Pa. St., 153; Foushee v. Grigsby, 12 Bush [Ky.], 75; Pennsylvania & D. R. Co. v. Leujfer, 84 Pa. St., 168.) .

<p>Criminal Law: Evidence op Character. Where a person accused of crime introduces evidence of his good character or reputation it is not competent for the prosecution to put in evidence specific acts tending to prove it to be bad. Olive v. State, 11 Neb., 1, followed.</p>

Error from the district court of Lancaster county. Tried below before Tibbets, J. The sum stipulated to be paid on a breach of the agreement was intended between the parties as liquidated damages. The jury should have been instructed accordingly.

Error from tbe district court of Cass county. Tried below before Chapman, J. Th There was no beneficiary named, and the wife had no right to bring this suit. (Bacon, Benefit Societies & Life Insurance, see. 241, and cases cited; Niblack, Mutual Benefit Societies, see. 166a; Esty v. Clark, 3 Am. Rep. [Mass.], 320, and cases cited.) It was error to instruct the jury that a person could become a member in a manner different from that prescribed by the association.

<p>Mutual Insurance Associations in Connection with. Railroad Companies: Membership: Estoppel: Waiver. The questions presented by this case being substantially the same as those decided in Burlington Voluntary Belief Department v. White, 41 Neb., 547, the judgment is affirmed for the same reasons.</p>

<p>Appeal from tbe district court of Lincoln county. Heard below before Church, J.</p>

<p>1. Principal and Agent: Agent’s Exclusive Right to Sell Goods: Breach op Contract: Damages. E. & P. claimed to have a contract with the H. Company whereby H. & P. were to have the exclusive right to sell goods manufactured by the H. Company in certain territory and whereby the H. Company was forbidden to sell these goods to others within that territory. At the request of E. & P., a salesman of the H. Company made an estimate to a third person of the price of certain goods, the evidence tending to show that the salesman was introduced to such third person by E. & P. with the statement that anything he did would be satisfactory to E. & P. The salesman sold the goods directly to such third person for the H. Company and not for E. & P. E. & P. sought to recover from the H. Company for profits lost because of such transaction. The H. Company claimed that E. & P. had waived their exclusive right in this instance. The court instructed the jury, in effect, that if E. & P. introduced the salesman to such third person with the statement that any agreement he made would be satisfactory, and if the third person did not then understand that he was to procure the goods from E. & P., then such facts constituted a waiver. Held, Erroneous, because in an action between E. & P. and the H. Company the purchaser’s understanding was immaterial, and it was for the jury to determine from all the evidence whether or not there had been a waiver, this instruction substituting the judgment of the purchaser for that of the jury upon this point.</p> <p>2. -: -: -: -. There also being a claim for damages because of alleged sales by the H. Company to others-within E. & P.’s territory in violation of the contract, held, that the measure of damages because of such sales was the-profit which E. & P. might with reasonable certainty show that they were prevented from realizing by reason of the breach of contract.</p> <p>3. -: -: -: -. A third claim of damages was based upon the alleged failure of the H. Company to deliver toE. & P. goods which they had contracted to sell and deliver. Held, That on this cause of action E. & P. ’s measure of damages was the difference between the price at which the H. Company had agreed to deliver the goods and the market value of such goods at the time and place when and where they should have-been delivered.</p>

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

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

Error from the district court of Saunders county. Tried below before Bates, J. The facts are stated by the commissioner. The court erred in admitting in evidence the plaintiff’s statement of the remark make by the brakeman.

Heard below before Tibbets, Strode, and Hall, JJ. The facts are stated by the commissioner. The number of signers to the request for submission of the proposition to vote bonds is less than one-third of the qualified voters of the district at date of presentation of the petition. The school district being a qitasi-corporation, its powers are limited, and it has no authority except that given by statute, and was without authority to submit the proposition to the electors.

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

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

<p>1. Contributory negligence is a matter of defense, and the burden of its proof is on the defendant. If the plaintiff proves his case without disclosing any contributory negligence, he will be assumed to be free therefrom.</p> <p>2. Death by Wrongful Act: Negligence: Evidence. A fact may be considered as established which may be reasonably inferred from all the facts and circumstances proved in a case; and in civil actions it is sufficient if the evidence on the whole agrees with and supports the hypothesis which it is adduced to prove and it is the duty of the jury to decide according to the reasonable probability of the truth.</p> <p>3. -: -: -. Evidence examined, and held sufficient to warrant the submission of the questions of negligence and proximate cause of the injury to the jury for their consideration and to sustain the verdict rendered.</p> <p>4. Motion to Direct Verdict: Negligence: Evidence. The former decision of this case, reported in 38 Neb., 488, reaffirmed.</p>

<p>1. Statutes should be so construed as to give effect to the intention of the legislature, and if a statute is plain and unambiguous, i h >re is no room for construction or interpretation.</p> <p>3. Our statute of descent is plain and unambiguous, and by its own operation, and solely in accordance with its own terms, vests in the heir such estate as he is thereby entitled to, eo instanti, upon the death of the intestate from whom the inheritance comes.</p> <p>3. Descent in Case of Murder of Ancestor by Heir. The-former opinion in this case, reported in 31 Neb., 61, disapproved.</p>

<p>1. County Boards: Duties: Depositories: Applications: Bonds. Under the provisions of chapter 50, Session Laws of 1891, it is the duty of the county hoard to act on the propositions of each hank to become a depository of current funds of the county, as well as to approve the bond incident to that relation.</p> <p>2. -:-:-: Mandamus. The mere fact that a county treasurer has assumed to designate the bank in which he himself shall deposit current funds of the county, and to fix the penal sum of the necessary bond, confers upon the bank designated no right by mandamus to compel the county board to approve the sufficiency of the sureties on such bond.</p>

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

Error from the district court of Gage county. Tried below before Broady, J. The facts are stated in the opinion. The petition does not state a cause of action.

Error from the district court of Lancaster county. Tried below before Tibbets, J. The facts are stated in the opinion. Executors of Swartz v. Leist, 13 O. St., 419; Torrey v. Deavitt, 53 Yt., 331; Fox v. Wray, 56 Ind., 423; Reeves v. Hayes, 95 Ind., 532; Thomas, Mortgages [2d ed.], sec. 421; Jones, Mortgages [4th ed.], secs. 472, 791, 820, 878, 967; Ahern,v. Freeman, 24 Am. St. Rep. [Minn.], 206; Blight v. Schenck, 51 Am. Dec. [Pa.], 478.

<p>Review: Failure to File Briefs: Affirmance. This cause having been submitted to the supreme court upon the transcript, without either a brief or oral argument from either party the decree of the lower court is affirmed. (Zimmerman Mfg. Co. v. Tower, 40 Neb., 306.) '</p>

<p>Error from the district court of Lancaster eóunty. Tried below before Tibbets, J. ■ • • ¡</p>

<p>1. An assignment in a petition in error as to the admission or exclusion of testimony, which does not indicate what testimony out of a great mass is reierred to or intended, is too indefinite to be considered.</p> <p>•2. An instruction not excepted to at the time it was given cannot be complained of in the supreme court.</p> <p>3. Intoxicating Liquors: Action by Minor Children Against Saloon-Keeper: Loss op Support: Instructions. Held, That the defendants’ first request to charge was not warranted by the evidence, was misleading, and should not have been given.</p> <p>4. -: -. Where, by reason of intoxication, a father is rendered incapable of providing for his family, his minor children may maintain an action for loss of means of support, caused by reason of the intoxication of the father, against the person furnishing the intoxicating liquors, and the sureties on his liquor bond.</p> <p>5. The verdict held to he against the evidence.</p>

Error from the district court of Douglas county. Tried below before Ferguson, J. In absence of default or laches on the part of an appellant his right of appeal cannot be defeated by the absence or neglect of a justice of the peace.

<p>Acts and declarations of conspirators which are parts of the res gestx, and therefore admissible against their co-conspirators, include those only which are done and made during the pend-ency of the conspiracy and in furtherance of its objects.</p>

<p>1. Fraudulent Conveyances: Evidence of Collateral Pacts. In all cases where the issue is fraud considerable latitude will be allowed the party upon whom the burden rests, and evidence will be received of collateral tacts, including subsequent events, provided they shed light upon the transaction involved and tend to explain the motives of the parties.</p> <p>2. -: -: Relevancy. In determining the relevancy of collateral facts in such cases the proximity in point of time to the principal transaction is not the exclusive test, but also whether they are capable of affording any reasonable presumption or inference with reference to such transaction.</p>

Hoard below before Tibbets, J. The agreement of the judgment lienors to purchase the property was of such a character as to invalidate the sheriff’s sale. ( Wooten v.Hinkle, 20 Mo., 290; Stewart v. Nelson, 25 Mo., 309; Miltenberger v. Morrison, 39 Mo., 71; Forelander v. Hicks, 6 Ind., 448; Phippen v. Stickney, 3 Met. [Mass.], 385; Jenkins v. Frink, 30 Cal., 586; Abbey v. Dewey, 25 Pa.

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

<p>Usury. The evidence examined, and held insufficient to sustain the verdict.</p>

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

<p>1. Pleading: Ruling on Motion for Specific Statement: Review. Where no prejudice has resulted from the ruling of the trial court upon a motion for a more specific statement, such ruling will afford no ground of complaint on error.</p> <p>2. Fire Insurance: Agents: Concurrent Insurance: Consent: Estoppel. Where an insurance agent, with authority to receive premiums and issue policies, exercises such authority with knowledge of the existence of concurrent insurance on the premises, the company is estopped, after a loss, to insist that the policy is void because consent to such concurrent insurance was not given in writing.</p>

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

Error from the district court of Douglas county. Tried below before Iryine, J. The opinion contains a statement of the case. The compromise, settlement, and dismissal of the suit of Campbell & Hervey against Baxter was a sufficient consideration for the payment of the money and the making of the note in controversy.

Error from the district court of Lancaster county. Tried below before Hall, J. The opinion contains a statement of the case. An adjoining owner cannot, by a ditch or canal, empty a natural reservoir, such as a pond, slough or “sag hole,” onto his neighbor.

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

<p>Appeal from the district court of Douglas county. Heard below before Doane, J.</p> <p>Koehler v. Dodge, 31 Neb., 328; Bassett v. Avery, 15 O. St., 299; Simon v. Merritt, 33 la., 537; Sehawaeker, 50 Ind., 592; Kimey v. Kruse, 28 Wis., 183; Hogan v. Moore, 48 Ga.,, 156; Peabody v. Rees, 18 la., 571; Bank of Sonoma County v. Gove, 63 Cal., 355.</p> <p>Davis v. Neligh, 7 Neb., 78.</p>

<p>1. Corporations: Collateral Attack Upon Legal Existence. Where the law authorizes a corporation, and there has been an attempt in good faith to organize, and corporate functions are thereafter exercised, such an organization is a corporation de facto, the legal existence of which cannot ordinarily he called in question collaterally.</p> <p>2. -: Proof of Corporate Existence. Therefore, where a hank brought an action upon a note indorsed to it and the answer denied the corporate existence of the bank, proof showing the adoption and recording of articles of incorporation, and that the bank had acted thereunder for a period of years, was sufficient to establish its corporate existence.</p> <p>3. Negotiable Instruments: Collateral Security: Liability of Pledgee. The Bank of O. indorsed to the Bank of C. certain promissory notes as collateral security for an indebtedness incurred in favor of the Bank of C. Among these was a note of H., upon which suit was brought. H. claimed that the note had been procured from him by the Bank of O. by fraud, and the evidence tended to prove that fact. Held, (a) That in the action upon the note H. could not require the Bank of C. to first exhaust its other collateral; (J) That the fraud being established, the Bank of C. was only entitled to recover to the extent of the unpaid portion of the indebtedness for which the note was pledged; (e) the Bank of C. having surrendered one of the collateral notes and taken in exchange other notes, secured by mortgage, drawn to the order of itself, it was bound to account as if the original note had been paid in full.</p> <p>4. Certain rulings on the evidence examined, and held not erroneous.</p>

Heard below before Wakeley, J. See opinion for statement of facts. The appellee did not have the right under the contract to engage in the several enterprises undertaken by him and appropriate to his own use the profits derived therefrom. (Wood, Master & Servant, sec. Ill; Thompson v. Havelock, 1 Campbell [Eng.], 527; Gardner v. McOulcheon, 4 Bev. [Eng.], 534; 1 Am'. & Eng. Ency.

Error from the district court of Douglas county. Tried below before Davis, J. The facts are stated in the opinion. The justice of the peace had no jurisdiction to issue the warrant of arrest, and bind the defendant over to the district court. The proceedings before the justice were void. The complainant was not a resident of Douglas county.

Error from the district court of Cass county. Tried below before Chapman, J. The facts are stated in the opinion. The alleged representations were not intended for or made to Mrs. Harris. She cannot, therefore, recover. (Bigelow, Fraud, 545; Long v. West, 31 Nan., 298.) All of the representations testified to by Mrs. Harris were promissory in their nature, and in law are not sufficient to base an action upon for fraud and deceit.

<p>Sufficiency of Evidence to Support a Finding that a Child’s Title to Land Was Hot Held in Trust for Her Father: Estoppel. The evidence in the case examined, and held sufficient to sustain the fiudiugs and judgment of the court below.</p>

<p>1. Executions: Liability of Plaintiff fob Directing Wrongful Levy: Sheriffs and Constables: Bonds: Sureties. Where the goods of B are wrongfully levied upon and sold on an execution and attachment against A, and the plaintiffs in those actions directed the levy and sale and indemnified the officer, they are jointly liable with him and his sureties for the wrong. Former decisiou of this branch of the case followed and adhered to. (See Walker v. Wonderliek, 33 Neb., 504.)</p> <p>2, Rulings on Evidence: Review: Assignments of Error. In order to obtain a review in this court of the action of a trial court in the admission or rejection of testimony, the portion of the testimony in which it is claimed the error occurred must be specifically and definitely described or pointed out in the assignment in the petition in error.</p> <p>3,' Instructions: Review: Assignments of Error. Where the errors claimed to have been committed by the trial court, either in the giving or refusing certain instructions, are grouped in one assignment in the petition in error, they will be examined no further than to determine that one of the instructions given was proper and unobjectionable, or one of those refused was rightly refused.</p> <p>4. Review: Sufficiency of Evidence. Where there is sufficient evidence to sustain the finding of a jury, such finding will not be disturbed unless it is clearly wrong.</p>

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

Error from the district court of Douglas county. Tried below before Irvine, J. The opinion contains a statement of the case. The court erred in admitting in evidence the record of the foreclosure proceeding. (Dorsey v. Me Gee, 30 Neb., 670; 1 Greenleaf, Evidence [14th ed.], sec. 522.) A surety is bound in the manner and to the extent provided in the obligation executed by him, and no further.

Error from the district court of Douglas county. Tried below before Ferguson, J. The opinion contains a statement of the case. When a vendee enters upon the performance of a contract to purchase, pays part of the consideration, and makes inexcusable default, he cannot maintain.an action to recover the money so paid.

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

Heard below before Hopewell, J. The opinion contains a statement of the case. The facts and circumstances of the case as disclosed by the record do not in law constitute duress or undue influence.

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

Error from the district court of Douglas county. Tried below before Waiceley, J. The facts are'Stated by the commissioner. The alienation of the property by Crew avoided the policy. ([Hale v. Mechanics Mutual Fire Ins. Co., 6 Gray [Mass.], 169; Loving v. Manufacturers Ins. Co., 8 Gray [Mass.], 28; Crosvenor v. Atlantic Ins. Co., 17 N. Y., 391; State Mutual Fire Ins. Co. v. Roberts, 31 Pa. St., 438; Buffalo Steam Engine Works v. Sun Mutual Ins.

<p>1. Bastardy: Jurisdiction of Justice of the Peace. A justice of the peace has no jurisdiction to try and determine the guilt or innocence of a party charged with being the father of a bastard child.</p> <p>2. A bastardy proceeding is essentially a civil proceeding, and can only be tried on its merits in the district court.</p> <p>3. Bastardy: Examination Before Justice of the Peace: Evidence. The examination by a justice of the peace of a person charged with being the father of a bastard child is in no sense a trial of the merits of the controversy; and the statute does not contemplate .the taking of any testimony in such proceeding on behalf of the party accused. Daly v. Meltndy, 32 ■Neb., 852, followed and reaffirmed.</p> <p>4. The deposition of a witness, who resides in the county where an action originated and is being tried, cannot be read in evidence until it is made to appear that such witness is absent from the county, or by reason of age, infirmity, imprisonment, or death is unable to attend in person at the trial. Everett v. Tidball, 34 Neb., 803, followed and reaffirmed.</p>

<p>1. Mechanics’ Liens: Statement: Description of Property. One who claims the benefits of the mechanics’ lien law must show a substantial compliance with each essential requirement thereof, one of which is that the sworn statement to be filed shall contain a description of the land upon which the labor was done or material was furnished for the purpose contemplated by such law. A description of property in such statement which is en7 tirely inapplicable to the land actually benefited cannot be made effective to any extent for the purpose of subjecting the land actnally built upon to the operation of the lien claimed. Eolmes v. Eutchins, 38 Neb., 601, followed.</p> <p>2. -: -: -: Subsequent Purchasers oe Land: This rule holds good as well in favor of one who was the owner of the land atthetime the improvements were erected as in favor of a subsequent purchaser.</p> <p>3. Estoppel. Whether under certain states of facts the owner might not be estopped from urging'the error in the statement as a defense to the lien, quiere.</p>

<p>1. Review of Ruling on Motion to Set Aside Default. Where a default has been regularly entered against a defendant, personally served with summons, it is largely within the discretion of the court to say whether he shall be permitted to come in afterwards and make defense; and unless it be made to appear that there has been an abuse of discretion by the court below, in this particular, this court will not interfere. Mulhollan v. Seoggin, 8 Neb., 202, and Bernstien v. Brown, 23 Neb., 64, followed.</p> <p>2. Practice: Order to File Answer: Default: Review. The defendants appeared after answer day and filed a demurrer without leave. The plaintiff moved for a default. The court did not enter a default, but gave defendants leave to answer in two days. Held, That the condition imposed of filing an answer within a short time was a reasonable exercise of discretion on the part of the trial court, at least in the absence of evidence of any of the circumstances surrounding the case.</p> <p>3. Trial: Procedure in Trial Court: Presumptions of Regularity: Review. It is the duty of the district court to afford to defendants a full opportunity to present their defense, but it is also its duty to prevent unnecessary delays and discourage frivolous proceedings. In reviewing orders affecting the procedure in a case this court will presume, in the absence of evidence to the contrary, that the district courts have acted with due regard to both principles.</p>

<p>1. Negligence: Railroad Companies: Personal Injuries. Negligence on the part ,of a railroad company cannot be inferred merely from the fact that the act complained of was unnecessary, nor from the fact that a necessary act was performed in an unnecessary manner. In order to justify the inference of negligence the commission of the act in the manner in which it was committed must, under all the circumstances, have implied a failure to exercise that degree of care which a prudent person would exercise under similar circumstances.</p> <p>2. -: Evidence. The evidence in this case examined, and held insufficient to establish negligence on the part of the defendant.</p>

Error from the district court of Douglas county. Tried below before Wakeley, J. The facts are stated in the opinion. Morgan v. Bergen, 3 Neb., 213; Parsons, Contracts, secs. 21, 535; Ery, Specific Performance, sec. 119; Higginbottom v. Benson, 24 Neb., 461. A conveyance of the equity of redemption, absolute in form, may be shown by parol to have been intended as security.

Error from the district court of Jefferson county. Tried below before Broady, J. See opinion for statement of the casei While at chambers, outside of the county where the ac-Ron was pending, the district judge had no authority to order the examination by the physicians. (Consolidated Statutes, secs. 1057-1059.) A court has no authority to make an order requiring a person to submit to a personal examination.

<p>1. Verdict: Form: Sufficiency. In an action to recover money the jury returned a verdict in these words: “We, the jury, duly impaneled in the above entitled cause, do find for the plaintiff, James C. Ziegler, and assess his damages in the sum of $38.59, and interest at seven per cent,” held sufficiently certain to sustain a judgment thereon for plaintiff for $38.59.</p> <p>2. Instructions: Exceptions: Review. An exception is necessary to the review of alleged errors in giving and refusing instructions.</p> <p>.3. Transcript for Review: Omission or Instruction. Error cannot be predicated for the refusing a request to charge, where such instruction is not contained in the record brought to this court.</p> <p>4. Review: Sufficiency of Evidence: Assignments of Error. This court will not review the evidence for the purpose of ascertaining whether it sustains the verdict, where the question is not specifically raised by the petition in error.</p> <p>•5. Rulings on Evidence: Review : Assignments of Error. An objection to the ruling of the trial court on the admission and exclusion of evidence will not be considered, unless the particular ruling complained of is pointed out in the assignments of error.</p> <p>■6. Assignments of Error: Ruling on Motion for New Trial. An assignment of error for the denial of a motion for a new trial is bad if it fails to specify to which of the several points made by the motion the assignment applies.</p> <p>7. Petitions in Error: Failure to Make Assignments Specific. In order to a review of the proceedings of the trial court, the petition in error must assign alleged errors with such particularity as to enable the supreme court to determine the precise ruling of which complaint is made.</p>

<p>Beview: Defective Transcript: Dismissal. Where the transcript filed in this court does not contain the judgment, or final order, of the district court sought to be reviewed, the petition in error will be dismissed.</p>

Error from the district court of Madison county. Tried below before Powers, J. A statement of the case appears in the opinion. Where the dealings between two partners embrace but few transactions which do not make a settlement difficult, one partner may maintain an action at law against the other to recover money.

Error from the district court of Cass county. Tried below before Chapman, J. If property is so constructed as to be a nuisance, the tenant is not liable. (Gillilan v. Chicago & A. II. Go., 19 Mo. App., 411; Swords'v. Edgar, 59 N. Y., 28.) The public should pay damages resulting from' public acts.

<p>Error from the district court of Dodge county. Tried below before Marshall, J.</p> <p>Mercer v. Harris, 4 Neb., 77.</p> <p>Burlington & M. R. R. Co. v. Schluntz, 14 Neb., 421; Sioux City R. Co. v. Brown, 13 Neb., 317.</p>