Volume 42 — Nebraska Reports

<p>Error from the district court of Washington county. Tried below before Scott, J.</p> <p>cited: Robinson v. Mathwick, 5 Neb., 252; Doody v. Vaughn, 7 Neb., 31; State v. Otoe County, 6 Neb., 133; Damp v. Town of Dane, 29 Wis., 428; Williams v. Holmes-, 2 Wis., 96; Warren v. Brown, 31 Neb., 8; Beatty v. Beethe, 23 Neb., 210; Howard v. Dakota County, 25 Neb., 233; Throckmorton v. State, 20 Neb., 647; In re Minneapolis R. Co., 38 Minn., 157; Kemerer v. State, 7 Neb., 132.</p> <p>cited: Davis v. Commissioners of Boone County, 28 Neb., 837.</p>

<p>Error from the district court of Madison county. Tried below before Powers, J.</p> <p>cited: Williams v. Bosson, 11 O., 62; Keith v. Goodwin, 31 Vt., 268; Chapeze v. Young, 9 S. W. Rep. [Ky.], 399 ; Brandt, Suretyship, 230; Oldham v. Broom, 28 O. St., 41; Adams v. Flanagan, 36 Vt., 400.</p> <p>cited: Norton v. Coons, 3 Denio [N. Y.], 132; Warner v. Price, 3 Wend. [N. Y.], 397; Norton v. Coons, 6 N. Y., 33; Story, Contracts, sec. 584; Price v. Edwards, 11 Mo., 526; Knox v.Vallandingham, 13 S. & M. [Miss.], 526.</p>

Heard below before Eerguson, J. A statement of the case appears in the opinion. It is not the province of the courts to decide that any particular act passed by the legislature in the exercise of its police power, and, as a health law, is unconstitutional, unless it plainly appears to be so on the face of the act. (In re New Yorh JS.

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

<p>Appeal from the district court of Dakota county. Heard below before Norris, J.</p> <p>cited: Marshall County High School Co. v. Iowa Evangelical Synod, 28 la., 360; Finlayson v. Finlayson, 3 L. R. A. [Ore.], 801; Knápp v. Bailey, 79 Me., 195; Miller v. Edgerton, 38 Kan., 36; Fairchild v. Rasdall, 9 Wis., 380*; Clifton v. Jackson Iron Co., 74 Mich., 183; 2 Parsons, Contracts, 782; Bolt v. Rogers, 3 Paige Ch. [N. Y.],. 154; Goudy v. Gebhart, 1 O. St., 262; Hendrickson v. Evans, 25 Pa. St., 441; Payne v. Britton, 10 Ark., 53; Blystone v. Blystone, 51 Pa. St.j 374; Nellis v. Clark, 20 Wend. [N. Y.], 24.</p> <p>cited: Munson v. Carter, 19 Neb., 293; Borden v. White, 44 N. J Eq., 291; Pinger v. Finger, 42 N. W. Rep. [Minn.], 289; Catalani v. Catalani, 24 N. E. Rep. [Ind.], 375; Nolan v. Nolan, 43 N. W. Rep. [Mich.], 1078; Dunn v. Dunn, 7 Atl. Rep. [N. J.], 842; Whipple v. Barton, 3 Atl. Rep. [N. H.], 922; Tañere v„ Pullman, 29 N. W. Rep. [Minn.], 171; Davis v. Dean, 26 N. W. Rep. [Wis.], 737; Samson v. Samson, 25 N. W. Rep. [Ia.], 233; Crawford v. Hoeft, 24 N. W. Rep. [Mich.], 645; Smith v. Smith, 19 N. W. Rep. [Wis.], 47; Ashton v. Thompson, 18 N. W. Rep. [Minn.], 918; Sprague v. Hall, 17 N. W. Rep. [Ia.], 743; Thorn v. Thorn, 16 N. W. Rep. [Mich.], 324; Hanna v. Wilcox, 5 N. W. Rep. [Ia.], 717; Watkins v. Brant, 1 N. W. Rep. [Wis.], 82; Ikered v. Beavers, 7 N. E. Rep. [Inch], 326; Oakley v. Ritchey, 28 N. W. Rep. [Ia.], 448; Bledsoe v. Bledsoe, 1 S. W. Rep. [Ky.], 10; Saunders’ Appeal, 6 Atl. Rep. [Conn.], 193; Woodbury v. Woodbury, 5 N. E. Rep. [Mass.], 275; Porter v. Throop, 11 N. W. Rep. [Mich.], 174; June v. Willis, 30 Eecl. Rep., 11; Webber v. Sullivan, 12 N. W. Rep. [Ia.], 319; O’Neil v. O’Neil, 14 N. W. Rep. [Minn.], 59; Maix v. McGlynn, 88 N. X., 357; Smith’s Will, 52 Wis., 543; Smith v. Smith, 19 N. W. Rep. [Wis.], 47; Weller v. Weller, 19 N. E. Rep. [N. X.], 433; Goodrich v. Shaw, 40 N. W. Rep. [Mich.], 187; Fitch v. Reiser, 44 N. W. Rep. [Ia.], 214.</p>

<p>1. Trial: Directing Verdict. Where there is testimony which should he submitted to the jury, an instruction which withdraws the case from, them is not proper, and it is not error to refuse to give it.</p> <p>3. Evidence. Iu a civil action, when a fact may be fairly and reasonably inferred frond other and all the facts and circumstances proved, it may be taken as established.</p> <p>3. Railroad Companies: Failure to Fence Track: Injury to Live Stock: Damages. The evidence held sufficient ,to sustain the verdict.</p>

<p>1. Instructions. It is not error to refuse to give instructions requested to be given which have been substantially expressed in the instructions prepared and read to the jury by the court on its own motion.</p> <p>2. Damages: Negligence: Fence on Highway: Collision: Instbuctions. The action of the district court in refusing to give to the jury certain instructions requested by the defendant examined, and held no error in such refusal.</p> <p>3. Evidence on Former Trial: Witnesses. To render the testimony of a witness given during the former trial of a cause admissible in evidence during a subsequent trial it must be shown that the witness, whose testimony it is thus sought to introduce, is absent from the state or without the jurisdiction or beyond reach of thq, process of the court.</p>

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

<p>Summons: Finding as to Defendant’s Residence: Review. The finding of the district court, as to the actual place of residence of a defendant served with summons by leaving a copy thereof at his alleged usual place of residence, will not he disturbed when such finding has been made on consideration of conflicting evidence.</p>

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

<p>Review: Bill of Exceptions: Defective Certificate': Af- ... firman ce. . The sole question being as to the sufficiency of the evidence to sustain the findings of fact made by a refer.ee, whose allowance of the bill of .exceptions fails to show that it contains all the evidence adduced, the judgment of the district court' is affirmed. Following Turner v. Turner, 12 Neb., 161, and Omaha ... ,' & tN. W. B. Co. v. Menk, 4 Neb., 24. .</p>

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

<p>1. mechanics’ Liens: Statements. It is not necessary to the . sworn statement and claim of lien required to he filed by sub- " ’ ' contractors that there should be attached thereto a copy of the written contract under the terms of which the rights of such • ■ ■, subcontractor have accrued; neither is it necessary that the ownership of the property benefited should be set forth therein.</p> <p>2. —-: Itemized Accounts. Where the itemized account filed with the sworn statement and claim of lien .disclosed when the furnishing of labor or material began and ended, it is not essential that as conclusions the same facts should be restated.</p>

Error from the district court of Douglas county. Tried below before Ferguson, J. The facts are stated by the commissioner. As no special damages are alleged, no cause of action is stated in the petition unless the article complained of is libelous per se. (Geislerv. Brown, 6 Neb., 254.) The language of the publication is not libelous per se.

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

<p>1. Vendor and Vendee: Contract oe Sale: Registration. Where the owner of real estate contracts in writing to sell and convey the same to another, and such contract is duly signed, witnessed, and acknowledged by such owner and recorded in the office of the register of deeds in the county where such real estate is situate, then one who purchases and receives a conveyance of said real estate from said owner takes such real estate subject to the rights therein of the vendee in said contract.</p> <p>■2. -: -: Rescission. In such case the vendee in said contract of sale is not entitled to a rescission thereof because of the sale and conveyance of the real estate by the owner to a third party.</p>

. Error from the district court of Cass county. Tried bel'ow before Chapman, J. The opinion contains a statement of the case. cited: General Statutes, 1873,sec. 83; Consolidated Statutes, sec. 508; Merchants Union Barb Wire Co. v. Chicago, R. I. & P. B. Co., 70 la., 105; Butler v. City of Passaic, 44* N. J. Law, 171; City of Quincy v. Chicago, B. & Q. P. Co., 92 111., 21; Burlington & M. R. R. Co. v. Reinhackle, 15 Neb., 279; Blakeley v. Chicago, K. & N. R. Co., 25 Neb.,…

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

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

<p>1. Review: Admission oe Incompetent Evidence: Harmless Error. A judgment will not be reversed because of the admission of incompetent evidence, where no possible prejudice resulted.</p> <p>2. -. The evidence held sufficient to sustain the verdict.</p>

<p>1. Eminent Domain: Local Assessments: Special Benefits. The only foundation for a local assessment lies in the special benefits conferred upon the property assessed, by the improvement to pay which the assessment is made, and an assessment beyond the benefit so conferred is a taking of property for public use without compensation, and therefore illegal.</p> <p>2. Metropolitan Cities: Local Assessments: Unsubdivided Tract. Under the law relating to cities of the metropolitan class, where an improvement extends through an unsubdivided tract of land, such tract is not subject to local assessment to pay for such improvement to a greater distance from the improvement than the average distance to which assessments on subdivided lots are levied.</p>

<p>1. Libel: Defense. In a prosecution for libel it is no defense that the writing was a repetition of previous oral publications and that the defendant was induced to make the written publication by acts of the person concerning whom the libel was published.</p> <p>2. -: Privileged Publication: Malice. The libel alleged was published of and concerning a school teacher at a meeting of the school district called for the purpose of receiving any charges which might be made and transmitting them to the county superintendent. Held, That the occasion was not one of absolute privilege, and that the defendant was liable at least on proof of express malice in the publication.</p>

<p>Mortgage on Lands in Different Counties: Sufficiency of Release. A mortgage was made on lands in Dodge, Douglas, and other counties. Subsequently an instrument was executed and delivered by the mortgagee, reciting the execution of the mortgage and describing it, but reciting that it conveyed the Dodge county lands, describing the same, but making no reference by description to the other land. The instrument then proceeded as follows: “I do hereby acknowledge that the said mortgage and the note accompanying the same is redeemed, paid, and satisfied, and I do hereby release all my claim to the premises covered by said mortgage, and do release and quitclaim unto [the mortgagors], their heirs and assigns forever, the premises covered by said mortgage, and do release all obligations due me by virtue of said note and mortgage.” This instrument was acknowledged and was recorded in Dodge county, but not in Douglas. Subsequently an action was brought to foreclose tbe mortgage on the Douglas county land against one who had purchased after the execution of the release, but without notice thereof. Held, (1) That the release extended to all land described in the mortgage, and was not restricted to the particular tract described in the recital; (2) that, in the absence of allega-, tions and proof of fraud or mistake, it operated to discharge the whole mortgage.</p>

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

Error from the district court of Douglas county. Tried below before Keysor, J. The facts are stated in the opinion. Attachment proceedings may be commenced in the county where property can be found, and summons sent for service to the county where the defendant resides.

Error from the district court of Douglas county. Tried below before Ferguson, J. The opinion contains a statement of the case. The court erred in refusing to admit testimony as to conversations with E. W. Whipple, deceased. (Shain v. Forbes, 23 Pac. Rep. [Cal.], 198; Hess v. Lowery, 122 Ind., 225; Kansas Mfg.

<p>1. Fraudulent Conveyances: Preferring- Creditors. An intention to defraud ought not to be inferred from the mere fact that by pledging his personal property and mortgaging his real estate a debtor has given a preference to one or more of his creditors.</p> <p>2. Judicial Sales: Title or Purchaser: Fraud. A purchaser of real property at judicial sale, duly confirmed, takes a title which cannot be assailed because of fraud in a prior transfer of the decree under which such sale was had, provided the aforesaid judicial sale itself was in all respects free from fraud and collusion.</p>

Heard below before Bates, J. The facts are stated by the commissioner. A majority of the members of a religious society cannot change the purpose for which its property was acquired by changing the corporate name of the society. (Baker v. Eucker, 79 Cal., 365.) Even if the majority of the members of a church society should secede, such secession would forfeit the right of the seceders to the common property, and the minority remaining become entitled to its exclusive use.

<p>Review of Conflicting Evidence. There being no question of law involved in this ease, and the finding of the district court being supported by sufficient competent evidence, its decree is affirmed.</p>

<p>1. Mechanics’ Liens: Acceptance of Note: Waiver of Lien. When a material-man or laborer takes the promissory-note, draft, or bill of exchange of the owner for the amount due the former from the latter for labor or material furnished for an improvement on real estate, there is no conclusive presumption of law that such note, draft, or bill of exchange was given or accepted in payment and discharge of the debt of which it was an evidence, nor does the law presume that such material-man or laborer thereby intended to waive his right to a mechanic’s lien under the statute.</p> <p>2. -: -: Intention to Waive Lien: Question foe Juey. In such case, whether a note was so taken and accepted in discharge and payment of the debt, and whether the material-man or laborer by taking the note intended thereby to waive his lien under the statute, are questions of fact to be determined from all the facts and circumstances in evidence in the case.</p> <p>3. -: Written Contract: Account of Items. Where the contract between an owner and a material-man for the erection of an improvement upon real estate is in writing, then the filing of such contract or a copy thereof with the verified “account of items” is essential to invest such material-man with a lien under the statute.</p> <p>4. -: Foreclosure: Oral Contract: Yariance Between Affidavit and Petition: Estoppel. Where the contract between the owner and the material man is verbal, the fact that by inadvertence or mistake the material-man alleges in his affidavit, filed with the “ account of items ” for the purpose of obtaining a lien, that the contract'was in writing, does not estop him, in a suit to foreclose a lien, from alleging and proving that the contract was in fact a verbal one, nor does it render the verified “account of items” filed to obtain a lien, incompetent evidence.</p> <p>5. -: -: Cross-Petition of Claimant: Failure of Owner to Answer: Review. A contractor brought suit to foreclose a mechanic’s lien. The owner and a number of material-men were made defendants. One of the material-men filed an answer in the nature of a cross-petition, claiming a lien upon the premises of the owner for material furnished in the erection of the improvement thereon. To this cross-petition the owner filed no answer. Held, That the owner could not be heard to object on appeal to the correctness, except as to the amount of the finding and decree of the district court in favor of such material-man.</p>

Heard below before Wakeley, J. A statement of facts appears in the opinion. The rights of the creditors in the land in controversy are superior to any claims of the wife for money advanced to her husband in 1871.

Original application for mandamus. See opinion for statement of the case. The county treasurer of Douglas county lias authority, and it is his duty, to sell real estate upon which the city of Omaha bas duly levied a special assessment authorized by law, and which special assessment is delinquent and unpaid, there being no general taxes of any kind delinquent against the property upon which the assessment was levied and is delinquent.

Error from the district court of Douglas county. Tried below before Ferguson, J. The opinion contains a statement of the case. The evidence clearly justifies the conclusion that no consent was ever given by the company to the removal of the goods in question, and that no notice of such removal was ever given until after the fire occurred, and that no waiver of the conditions of the policy, actual or by implication, can be claimed.

<p>1. County Courts: Calendars. Under tlie provisions of section 15, chapter 20, Compiled Statutes, it is the duty of the county judge, qu the first day of each term of the county court, or as soon thereafter as practicable, to prepare a calendar for all the causes for trial at such term, arranging the cases thereon in their numerical order, and setting the same down for trial, in the same order, for particular days during such term.</p> <p>2. -: -: Presumption of Correctness. It will be presumed by tbe appellate court, in the absence of any showing upon the subject, that such calendar was prepared and the causes set down for trial" in strict compliance with the terms of the statute.</p> <p>3. -: Default: Judgment. In cases brought in the county court which are not within the jurisdiction of the justice court, where no answer is filed on or before the first day of the term, in a cause to be tried at such term, the plaintiff is entitled to have the default of the defendant taken and proceed to judgment on any succeeding day of the term, upon proving his damages.</p> <p>4. -: Motion to Vacate Judgment by Default: Review. Where judgment on default has been entered by the county court against a defendant and which he seeks by motion to have vacated because the same was prematurely rendered, the motion must be accompanied by an answer showing a meritorious defense, either in whole or in part, to the action. • If no defense is alleged, it is not error to overrule the motion to vacate the judgment.</p>

<p>1. Trial: Arguments: Opening and Closing: Harmless Error. In trials by the court without the assistance of a jury, it is not reversible error to deny the party holding the affirmative leave to open and close the argument, where it is apparent from the record that he has not been prejudiced thereby.</p> <p>•2. Argument on Motion to Dissolve Attachment: Opening and Closing. Olds Wagon Co. v. Benedict, 25 Neb., 372, distinguished.</p> <p>3. -Attachment: Dissolution: Burden of Proof. Where the allegations of an affidavit for attachment are put in issue by a motion to discharge, it is not sufficient for 1he plaintiff to establish .his good faith and reasonable grounds for believing the statements of his affidavit to be true. He is required to establish the truth of such statements to the satisfaction of the court.</p>

<p>Error to the district court for Douglas county. Tried below before Scott, J.</p> <p>The opinion contains a statement of the ease.</p> <p>The license fee cannot be sustained as an exercise of the taxing power. (Dillon, Municipal Corporations, sec. 357; Templeton v. City of Teloamah, 32 Neb., 545.)</p> <p>The requirement of a license fee cannot be upheld as an exercise of police power, (Tiedeman, Municipal Corporations, sec. 123; City of Leavenworth v. Booth, 15 Kan., 627; Mühlenbrinck v. Long Branch Commissioners, 13 Yroom [N. J.], 364; City of St. Paul v. Traeger 25 Minn., 248.)</p> <p>cited: Tiedeman, Limitations of Police Power, p. 274; People v. Mulholland, 82 N. Y., 324; City of Chicago v. Bartee, 100 111., 57; Kinsley v. City of Chicago, 16 N. E. Rep. [111.], 260; 1 Dillon, Municipal Corporations, pp. 441, 442; 2 Beach, Public Corporations, sec. 1255; City of Cincinnati v. Buckingham, 10 O., 261; City of Cincinnati v. Bryson, 15 O., 643.</p>

<p>1. Chattel Mortgages: Liens. The mortgagee under a chattel mortgage acquires a lieu only upon the property conveyed and not the legal title thereof.</p> <p>2. Fraudulent Conveyances. Evidence examined, and held to sustain the decree of the district court.</p>

Tried below before Keysor, J. The opinion contains a statement of the case. The complaint was insufficient. It failed to set out the ordinance under which the accused was prosecuted.

<p>Sales: Fraud: Rescission. The views expressed and rules announced in the opinion rendered in this case at the time of its original hearing in this court (34 Neb., 863) affirmed and adhered to.</p>

Heard below before Hastings, J. The facts appear in the opinion. Injunction will not be granted unless the applicant has a clear and well-established right to the remedy. (Snowden v. Noah, 14 Am. Dec. [N. Y.], 547; Hinchman v. Patterson Horse R. Co., 86 Am. Dec. [N. J.], 252; Rhodes v. Dunbar, 98 Am. Dec. [Pa.], 221; Roath v. Driscoll, 52 Am. Dec. [Conn.], 352; Sheldon v. Rockwell, 76 Am.

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

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

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

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

<p>Appeal from the district court of Johnson county. Heard below before Broady, J. *</p> <p>cited: Walsh v. Rogers, 15' Neb., 311; Hamlin v. Meadville, 6 Neb., 227; Reakner v. Warner, 22 O. St., 275.</p>

Heard below before Doane, J. The facts are stated by the commissioner. The lower court was not justified, under the law and the evidence, in postponing the mechanic’s lien of the Bohn Sash & Door Company to the mortgage lien of Jeffries & Sons, trustees, and certain mechanics’ liens. The doctrine of estoppel does not apply. (De Nayer v. State Nat. Bank, 8 Neb., 108; Mills v. Graves, 38 111., 455; Commonwealth v. Moltz, 10 Pa.

<p>Review: Sufficiency of Evidence. This case examined, and held that the verdict of the jury was supported by sufficient competent evidence, and the judgment of the district court is affirmed.</p>

<p>Review: Sufficiency of Evidence. This case examined, and held that the verdict of the jury was supported by sufficient competent evidence, and the judgment of the district court is affirmed.-</p>

Error from the district court of Merrick county. Tried below before Marshall, J. The facts are stated by the commissioner. Where a judgment has been satisfied, no valid sale can be made under an execution issued thereon. The defendant in error cannot, therefore, recover.

<p>1. Elections: Contest: Character of Action. The proceeding for contesting an election provided for by chapter 26, Compiled Statutes, 1893, is, strictly speaking, neither an action at law nor in equity. It is a summary proceeding of a political character, and the proceeding cannot be maintained by any person unless authority therefor is found in the statute itself.</p> <p>2. Review: Pleading: Practice. This court in an action at law or in equity will, on its own motion, look into the record of a case brought here on appeal or error, for the purpose of determining whether the p 'tition upon which the action is founded states a cause of action, and whether the court has jurisdiction of the subject-matter of the suit.</p> <p>3. -: -: -. In a special proceeding founded solely upon a statute it is not only the privilege, but it is the duty of this court, on its own motion, to look into the record of the proceeding brought here and determine whether such proceeding is authorized by such statute, and whether the party prosecuting the proceeding is by the statute authorized to do so.</p> <p>4. Elections: Right of Elector to Contest: Dismissal. When one elector of a county, in his own name and on his own behalf, seeks to defeat the presumed will of the people of his county upon any subject as declared by a canvass of their votes at an election, and for that purpose invokes the provisions of a special statute for contesting the validity of such election, then the special statute invoked must, expressly or by necessary implication, authorize such elector to maintain in his own name and on his own behalf such proceeding, or it will be dismissed.</p>

Heard below before Irvine, J. The facts are stated by the commissioner. contending that the failure to serve notice to redeem upon Miles and Thomsen did not invalidate appellant’s title, cited: Kessey v. Connell, 68 la., 430; Parker v. Cochran, 64la., 757; Burdick v. Connell, 69 la., 458; Clifton Heights Land Co. v. Ban-dell, 47 N. W. Rep. [Ia.], 905; Hillyer v. Farneman, 65 la., 227. cited: Cooley, Taxation [ed. 1883],p. 363; Zahradnicekv.

Error from the district court of Clay county. Tried below before Morris, J. The facts are stated in the opinion. The court erred in not submitting to the jury the issue as to whether or not any or all of the claim of defendant in error had been paid.

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

Error from the district court of Johnson county. Tried below before Broady, J. The facts are stated by the commissioner. If assured willfully changed his invoices by increasing the amounts, and then swore said changed bills were true and correct, and presented them to the insurance company for the purpose of inducing it to make a more favorable settlement with him, he should not recover, and the court erred in refusing to thus instruct the jury. (Virginia Fire & Marine Ins.

<p>Error from, the district court of Saline county. Tried below before Morris, J.</p> <p>cited: 2 Bates, Partnership [ed. 1888], sec. 849; Younglove v. Liebhardt, 13 Neb., 557; Miner v. Lorman, 56 Mich., 212; Lamed v. Ayers, 41 Mich, 677; Casey v. Brush, 2 Caines’ Case3 [N. Y.], 293; Murray v. Bogert, 14 Johns. [N. Y.], 318; Westerlo v. Evertson, 1 Wend. [N. Y.], 533; 2 Chitty, Pleading [ed. 1879], p. 215; Parsons, Partnership, p. 268; Be Jarnette v. McQueen, 68 Am. Dec. [Ala.], 164; Bruce v. Eastings, 98 Am. Dec. [Yt.], 592; Borven v. School District, 10 Neb., 265; Emery v. Pease, 20 N. Y., 62; Howard v. Patrick, 38 Mich., 795; Whitney v. Purrington, 59 Cal., 36; Hanks v. Baber, 53 111., 292; Johnson v. Wilson, 54 111., 419; Holyoke v. Mayo, 50 Me., 385.</p>

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

Heard below before Hopewell, J. The facts are stated in the opinion. Appellees are not judgment creditors of Morris H. Sloman. They allege and prove only a judgment against the firm of Sloman Bros. (Morrissey v. Schindler, 18 Neb., 672; Herron v. Cole Bros., 25 Neb., 692; Ruth v. Lowrey, 10 Net)., 260; Leach v. Milburn Wagon Co., 14 Neb., 106.) The judgment upon which the creditors’ bill is based is not a domestic judgment.

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

<p>Error from the district court of Saline county. Tried below before Bush, J.</p> <p>cited: Elshire v. Schuyler, 15 Neb., 561; McGlay v. Worrell, 18 Neb., 52; Wardell v. McConnell, 23 Neb., 152; ICerkow v. Bauer, 15 Neb., 150; Jones v. Bates, 26 Neb., 693; Roose v. Perkins, 9 Neb., 304; Curran v. Percival, 21 Neb., 442; Murphy v. Curran, 24 111 App., 475; Steele v. Thompson, 42 Mich., 594; Raymond v. Miller, 34 Neb., 381; Was-son v. Palmer, 13 Neb., 378; Morehead v. Adams, 18 Neb., 569; Sandwich Mfg. Go. v. Sliiley, 15 Neb., 109.</p> <p>cited: Roberts v. Taylor, 19 Neb., 184; Buckmaster v. McElroy, 20 Neb., 557; Warrick v. Bounds, 17 Neb., 411; McDougal v. Giacomini, 13 Neb., 431; Gaunt v. Wainman, 3 Bing. N. C. [Eng.], 67; Marchant v. Erring-ton, 6 Bing. N. C. [Eng.], 79; Bissell v. Spring Valley Township, 124 U. S., 225; Daggett v. Daggett, 143 Mass., 516; Phillips v. Boot, 68 Wis., 128; Bantz v. Barnes, 40 O. St., 43; Arnold v. Barkalow, 73 la., 183; Black, Intoxicating Liquors, sec. 300; Miller v. Patterson, 31 O. St., 419.</p>

<p>1. Justice of the Peace: Judgment by Default. Where judgment has been rendered by default against a defendant in his absence, it is the duty of the justice of the peace by whom it has been rendered to set aside such judgment upon compliance on the part of the defendant with the conditions prescribed by section 1001 of the Code of Civil Procedure.</p> <p>% -: Order Opening Judgment. Before defendant can be held to a compliance with the third condition prescribed in section 1001 of the Code of Civil Procedure, the justice of the peace by whom the judgment was rendered should make such order as to opening the judgment, and as to the time and place of the trial to be had, as will enable the defendant to give the notice required by the statute.</p>

<p>1. Appearance. A general appearance may be made in the district court by prosecuting error proceedings thereto, by cross-examining a witness whose evidence was taken by deposition, and by consenting to a trial of the merits of the case to the court, in open court, waiving a jury at the same time.</p> <p>2. Review: Failure to File Motion for New Trial. Errors of law alleged to have taken place in the district court cannot be reviewed in this court when no motion for a new trial was filed in the trial court.</p>

<p>Error from the district court of Lancaster county. Tried below before Field, J.</p> <p>cited: Gear, Landlord & Tenant, see. 104; 1 Wood, Landlord & Tenant [2d ed.], p. 311; Witty v. Matthews, 52 N. Y., 512; Mumford v. Brown, 6 Cow. [N. Y.], 475; Foster v. Peyser, 9 Cush. [Mass.], 242; Krueger v. Ferrant, 43 Am. Rep. [Minn.], 223; 12 Am. & Eng. Ency. Law, p. 720; Weigall v. Waters, 6 Term Rep. [Eng.], 488.</p> <p>cited: Johnson v. Dixon, 1 Daly [N. Y.], 178; Ball v. Wyeth, 90 Mass., 279; United States v. Bostwick, 94 U. S., 66; Levey v. Dyess, 51 Miss., 501; Van Wormer v. Crane, 16 N. W. Rep. [Mich.], 686; Phillips v. hteoens, 16 Mass., 238; Wood, Landlord & Tenant, sec. 602; Warner v. Hitchins, 5 Barb. [N. Y.], 666; Miller v. Morris, 55 Tex., 412; Hughes v. Vanstone, 24 Mo. App., 637 ; Myers v. Burns, 35 N. Y., 269 ; Buck v. Rodgers, 39 Ind., 222; Wright v. Latin, 38 111., 293; Lewis v. Chisholm, 68 Ga., 40 ; Warren v. Wagner, 75 Ala., 188.</p>

Error from the district court of Merrick county. Tried below before Sullivan, J. A statement of the case appears in the opinion. In argument reference was made to the following authorities : On the first proposition discussed in the first paragraph of the opinion: Tootle v. Maben, 21 Neb., 618; Easterly v. Van Slyhe, 21 Neb., 611; Newton Wagon Co. v. Diers, 10 Neb., 284; Turner v. O’Brien, 11 Neb., 108; Steele v. Russell, 5 Neb., 211; Smith v. Evans, 13 Neb., 314.

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

Error from the district court of Clay county. Tried below before Morris, J. The opinion contains a statement of the case. The acceptance of rent on a lease is a waiver of all defaults then existing. (Collins v. Hasbrauch, 15 Am. Rep. [N. Y.], 412; Hornbroohs v. Lúeas, 49 Am. Rep. [W. Va.], 277; Wolffe v. Wolffe, 44 Am.

<p>Sheriffs : Mileage. For conveying insane patients to the hospital a sheriff is entitled, to mileage at the rate of five cents per mile and not at the rate of ten cents per mile.</p>

Error from the district court of Lancaster county. Tried below before Tibbets, J. The facts are stated by the commissioner. Everything talked of before the written contract was signed was merged in that contract, and the court erred in allowing witnesses to testify, over plaintiff’s objections, to matters previously discussed. (2 Parsons, Contracts, pp. 679, 680; Kainv.

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

<p>1. Replevin: Judgment: Harmless Error. A defendant in replevin, where the issues are found in his favor, that he had the right of possession merely of the property in controversy at the commencement of the action, and that the property cannot be returned, is entitled to a judgment for the value of such possession, together with damages for withholding the property; but in such case the failure to find the value of the defendant’s right of possession, or to render judgment for the same, is not an error of which the plaintiff can complain.</p> <p>2. Evidence: Damages. A party cannot testify as to his opinion of the amount of his damages, but the facts upon which the court or jury can make such estimates are to be given.</p> <p>3. Replevin: Buildings: Damages. In an action of replevin for a building, injury to personal property therein occasioned by the removal of the building cannot be recovered by the defendant as an element of damage.</p> <p>4. -: Evidence: Estoppel. The evidence in the case h/M not to sustain the findings and judgment.</p>

Application to supreme court by plaintiff in error to be released on bail pending proceedings to review a judgment of the district court for Douglas county, whereby he was sentenced for having committed the crime of larceny as bailee. Application allowed.

Error from the district court of Adams county. Tried below before Gaslin, J. * The facts are stated in the opinion. A condition cannot be ingrafted by parol upon a conveyanee of real estate. An oral promise to warrant title is within the statute of frauds.

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

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

<p>Heview: Findings and Judgment: Variance. Where the facts admitted by the pleadings and established by the special findings of the trial court are at variance with its final judgment, such judgment in an error proceeding must be reversed.</p>

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

<p>1. Taxation: Validity of Sale for Portion of Taxes. A county treasurer cannot make a valid public or private sale of real estate for non-payment of delinquent taxes due thereon, unless in such sale are included all taxes, with interest and costs, then delinquent against such real estate. State v. Helmet,. 10 Neb., 25, Tillotson v. Small, 13 Neb., 202, and O'Donohue v. Hendrix, 13 Neb., 257, reaffirmed.</p> <p>2. -: Purchasers at Sale. The rule of caveat emptor applies-with full force to a purchaser of real estate sold for the non-payment of delinquent taxes. Pennoek v. Douglas County, 39 Neb.,. 293, re-affirmed.</p> <p>3. -: Sales: Discharge oe Taxes Not Included. The sale of real estate by a county treasurer for delinquent taxes due thereon for one year does not discharge either state, county, or city taxes assessed against such real estate for prior years, which taxes were not included in such sale.</p> <p>4. -: Liens: Foreclosure. The only way by which a valid’ tax assessed against real estate in this state can be discharged, is by the payment of such tax, unless such real estate be sold therefor and the holder of the tax lien fails to bring suit to foreclose the same for five years after the expiration of the time to-redeem.</p> <p>5. -: -: Sales. The tax sales and liens mentioned in sections 119 and 181 of the revenue law of 1879 have reference-only to valid tax sales and valid liens arising therefrom.</p> <p>6.--: Sales: Eeturn: Private Sales. Until a county treasurer has made a return to the county clerk of his county of the-public sale of lands for taxes held by him in pursuance of section 109 of the revenue act of 1879, he has no authority to sell lands at private sale for delinquent taxes due thereon.</p> <p>7. Invalid Tax Sales: Eights oe Purchasers: Subrogation.. Where a sale made of real estate for taxes is invalid the purchaser thereat, for the taxes for which he purchased the real estate, and for all prior and subsequent taxes existing against said real estate paid by him because of his purchase, becomes subrogated to all the rights of the public to the liens existing against said real estate for such taxes, and entitled to the same rate of interest, and no greater, on the taxes paid, which the delinquent taxes were drawing when he paid them. Dillon v. Merriam, 22 Neb., 151, reaffirmed.</p> <p>8. -: Cancellation oe Certieicate: Attqrney’s Fee. Where an owner of real estate brings suit to cancel an alleged invalid tax sale certificate, and the holder of such certificate admits, in his answer to the action, its invalidity, asks to be subrogated. to the rights of the public to the lien for the taxes on which said certificate is based, and to foreclose such lien against said real estate, he is not entitled to an attorney’s fee of ten per cent of the amount of the decree he may recover, to be taxed as part of the costs in the case.</p> <p>9. Taxes: Foreclosure of Lien: Attorney’s Fee. Whether a holder of a tax lien, on obtaining a decree foreclosing the same, is entitled to an attorney’s fee under section 181 of the revenue law of 1879 is not to be determined by the status of the lien-holder in the case. Whether he be a plaintiff or a defendant is wholly immaterial. The test as to whether such lien-holder is entitled to an attorney’s fee is whether the lien foreclosed has for its basis a valid tax sale. If the sale on which the lien is based was valid, then the holder of the lien is entitled to an attorney's fee. If the sale was invalid, he is not entitled to the attorney’s fee.</p> <p>10. -: Invalid Sale : Action to Cancel Certificate : Tender: Burden of Proof: Evidence. An owner of real estate brought suit to cancel a tax sale certificate and taxes assessed against said' real estate for certain years and paid by the holder of the certificate. The owner alleged in his petition, in general terms, that the tax sale certificate was void ; that the taxes paid were never assessed against the real estate and were not liens thereon. At the same time he tendered into court an amount of money which he alleged was sufficient to pay and discharge said tax liens for said years. The holder of the tax certificate admitted its invalidity, asked to be subrogated to the rights of the public to the lien for the taxes on which said certificate was based, and taxes paid by him assessed against said real estate by reason of his purchase thereof, and prayed to foreclose said tax lien and taxes against said real estate. Held, (1) That the owner, by his tender of a sum of money in payment of the taxes for certain years, thereby admitted that the taxes appearing against said real estate on the treasurer’s books for said years were legally assessed against it; (2) that the burden of showing that any of the taxes for any of said years had never been assessed against the real estate, were for any cause illegal, had been discharged, or that they were not liens upon the real estate, was upon the owner; (3) that the holder of the tax sale certificate and tax liens, to prove his case and establish his lien, was only required to prove what amount of taxes he paid, when he paid them, and the tax sale certificate and tax receipts of the treasurer of the county were competent evidence for that purpose.</p>

Heard below before Wakeley, J. The facts are stated by the commissioner. Any assignment of the contract was subject to all equities, not only between the parties thereto, but to all equities which third persons could enforce against the assignor.

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

Error from the district court of Hitchcock county. Tried below before Cochran, J. The facts are stated in the opinion. A buyer who pays the consideration after notice of fraud is not entitled to protection as an innocent purchaser for value.

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

<p>Error from the district court of Sioux county. Tried below before Kinkaid, J.</p> <p>cited: State v. Compton, 28 Neb., 485; Cowles v. School District, 23 Neb., 655; Dooley v. Meese, 31 Neb., 424; State v. Stein, 13 Neb., 532; State v. Hamilton, 29 Neb., 198; State v. Boyd, 31 Neb., 682; State v. School District, 34 Kan., 237; County of Piatte v. Goodell, 97 111., 84; People v. Town of Oran, 121 111., 650.</p>

Tried below before Chapman, J. The facts are stated in the opinion.

<p>Error from the district court of Lancaster county. Tried below before Hall, J.</p> <p>cited: Delaney v. Lindel', 22 Neb., 280; Mateer v. Missouri P. R. Co., 16 S. ~W. Rep. [Mo.], <839; Hinkle v. Minneapolis & St. L. R. Co., 31 Minn., 434; Gulliher v. Chicago, R. L. & P. R. Co., 13 N. W. Rep. [Ia.], 431; Pennsylvania R. Co. v. Shay, 82 Pa. St., 202; Snider v. Adams Express Co., 63 Mo., 383; Wallace v. Chicago, St. P., M. & O. R. Co., 25 N. "W. Rep. [Ia.], 772; Gould v. Cayuga County Nat. Bank, 86 N. Y , 84; Glenn v. Statler, 42 Ia., 109 ; Butman v. Hussey, 30 Me., 263; Moorman v. Collier, 32 Ia., 138; Belger v. Dinsmore, 51 N. Y., 170; Guldager v. Rockwell, 24 Pac. Rep. [Col.], 556; First Nat. Bank, Barnesville, O., v. Yocum, 11 Neb., 332; East Tennessee, V. & G. R. Co. v. Hayes, 10 S. E. Rep. [Ga.], 351; Donne v. Lockwood, 115 III., 490; Gswego Starch Factory v. Len-drum, 57 Ia., 573; Chapman v. Chicago & N. W. R.</p> <p>Co., 26 Wis., 303; Chicago & G. E. R. Co. v. Dane, 43 N. Y., 242; Bolles v. Sachs, 33 N. W. Rep. [Minn.], 864; East Line & R. R. R. Co. v. Scott, 10 S. W. Rep. [Tex.], 99; Harper v. Hassard, 113 Mass., 187; Coffin v. Landis, 46 Pa. St., 431; Franklin Mining Co. v. Harris, 24 Mich., 115; Wilkinson v. ITe ivenriah, 26 N. W. Rep. [Mich.], 140; Stiles v. McClellan, 6 Col., 89; Warner v. Texas & P. R. Co., 54 Fed. Rep., 923.</p> <p>cited: East Tennessee, V. & G. R. Co. v. Staub, 7 B. J. Lea [Tenn.], 397; Moore v. Chicago, B. & Q. R. Co., 65 la., 505; Jessup v. Chicago & N. W. R. Co., 48 N. W. Rep. [Ia.], 77 ; Wells v. Alexandre, 15 L. R. A. [N. Y.], 218; Smith v. Morse, 20 La. Ann. 220; Giles v. Bradley, 2 Johns. Cas. [N. Y.], 253; Seddon v. Rosenbaum, 9 S. E. Rep. [Va.], 326; Michie v. The Governor, 4 Humph. [Tenn.], 486; Hoioard v. D dy, 19 Am. Rep. [N. Y.], 285 ; Tarbox v. Hartenstein, 4 Bax. [Tenn.], 78 ; Ream v. Watkins, 72 Am. Dec. [Mo ], 283; Cake v. Potts-ville Bank, 2 Am. St. Rep. [Pa.], 600.</p>

Error from the district court of Thayer county. Tried below before Hastings, J. The opinion contains a statement of the case. Tbe failure of the assured to furnish proper notice and proof of loss with certificate of magistrate prevents her from, maintaining the action. (Columbian Ins. Co. v. Lawrence, 2 Pet. [U. S.], 25; Leadbetter v. Etna Ins. Co., 13 Me., 265; Inman v. Western Fire Ins. Co., 12 Wend. [N. Y.], 452; Iioumage v. Mechanics Fire Ins.

<p>Parol evidence is incompetent to prove a contemporaneous oral agreement by which it is sought to change or alter the terms of a written, contract and the result of which would be to change the effect of the written contract in a material portion and to insert or read into it a condition or reservation not contained in it, or implied by its terms.</p>

<p>Erroneous Instructions: Review: Harmless Error. Where an erroneous instruction has been given, but an examination and consideration of the whole record of the proceedings at the trial of the case in the district court, and more especially the testimony, convinces that the jury were not misled by such instruction to the prejudice of the complaining jíarty, the giving of the defective instruction will not be sufficient reason for reversing the judgment and granting a new trial.</p>

<p>Error to the district court for Harlan county. Tried below before Gaslin, J.</p> <p>cited: Net's?/ v. Hardin, 135 U. S., 100; State v. Winters, 44 Kan., 723; State v. Coonan, 48 N. W. Rep. [Ia.], 921; State v. Fraser, 48 N. W. Rep. [N. Dak.], 343.</p> <p>cited: State v. Chapman, 47 N. W. Rep. [S. Dak.], 411; Brown v. State of Maryland, 12 Wheat. [U. S.], 419 State v. Shapleigh, 27 Mo., 344; State v. North, 27 Mo., 464; In re Beine, 42 Fed. Rep., 546; In re Harman, 43 Fed. Rep., 372.</p>

<p>Error from the district court of Buffalo county. Tried below before Hamer, J.</p> <p>cited: Holcomb v. Foble, 37 N. W. Rep. [Mich.], 497; Baughman v. Gould, 45 Mich., 483; Convers v. Blumrich, 14 Mich., 108; Webster v. Bailey, 31 Mich., 36 ; Busterud v. Farrington, 31 N. W. Rep. [Minn.], 360; Mohler v. Carder, 35 N. W. Rep. [Ia.], 647; Hawk v. Brownell, 11 N. E. Rep. [Ill-], 416; Long v. Clapp, 15 Neb., 417; Eldridge v. Hargreaves, 30 Neb., 638.</p>

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

<p>Review: SupproiENoy op Evidence: Mechanics’ Liens: Mortgages. Ia this case there was presented on appeal no question save that of the sufficiency of the evidence to sustain the findings of the district court. The proofs upon examination having been' found fully to justify the conclusions questioned, the judgment of the district court is affirmed.</p>

<p>Error from the district court of Douglas county. Tried below before Irvine, J.</p> <p>cited: Farmer v. Gregory, 78 Ky., 475; Dutch v. Mead, 36 N. Y. Super. Ct., 427; Facón v. Daniels, 37 O. St., 279 ; Bellv. Offutt, 10 Bush [Ky.], 638; Wharton v. Stoutenburgh, 35 N. J. Eq., 266; Blight v. Ashley, 1 Pet. [U. S.], 15; Brandon Mfg. Co. v. Morse, 48 Yt., 322; Costigan v. Mohawk & H. B. Co., 2 Denio [N. Y.], 609.</p>

<p>1. Bailroad Companies: Trespasser on Track: Personal Injuries: Negligence: Instructions. In an action against a railway company for personal injuries by it inflicted, the trial court very properly refused to give an instruction requested in which the right of plaintiff to recover was made dependent upon the absence on her part of a very slight want of ordinary care,-when there had already been given instructions in which had been clearly explained the nature and effect of negligence on the part of each party to the suit.</p> <p>2. -:--: Duty of Engineer. Where the plaintiff was injured by a locomotive of the defendant at a place on defendant’s track where such plaintiff had no right to be, and where in fact she was a trespasser, the jury were properly instructed that the engineer was under obligations, as soon as he discovered that plaintiff was on the track, to use all possible means and efforts consistent with the safety of his train and any passenger or persons who might be thereon to avoid injuring the plaintiff, and failing so to do would render the company liable.*</p> <p>3. Infants : Contributory Negligence: Instructions. In a ease wherein the evidence admitted of the application of the principle stated, the trial court properly instructed the jury that the rule of law as to the contributory negligence of a child is that it can only be expected and required to exercise that degree of care and discretion which a child of such age would ordinarily and naturally use and exercise under the circumstances shown in evidence and in the same situation, bearing in mind also the amount of intelligence or want of the same of the child, if any such had been shown by the evidence.</p>

Error from the district court of Adams county. Tried below before Gaslin, J. The facts are stated in the opinion. The plaintiff in error cannot be held to have authorized the indorsement sued on. (1 Daniels, Negotiable Instruments, secs. 292, 294; GulieJc v. Grover, 97 Am. Dec. [N. J.], 728; Davidson v. Stanley, 2 Man. & G. [Eng.], 721; Rossiterv. Rossiter, 24 Am.Dec. [N. Y.], 62; Wood v. MoCain, 42. Am. Dec. [Ala.], 612; Breed v. First Nat.

<p>Error from the district court of Douglas county. Tried below before Irvine, J.</p> <p>cited: Shortel v. Young, 23 Neb., 408; Oberfelder v. Kavanaugh, 29 Neb., 431; Mewman v. Morris, 52 Miss., 405; Plumer v. Lord, 5 Allen [Mass.], 460; Preusser v. Henshaw, 49 la., 41; Scott v. Conway, 58 N. Y., 619; Play v. May, 9 Neb., 22; Third Nat. Bank of Buffalo v. Guenther, 123 N. Y., 568; Rankin v. West, 25 Mich., 195; Guttman v. Scanned, 7 Cal., 459; Newan v. Morris, 52 Miss., 405; German Ins. Co. v. Hyman, 34 Neb., 704; Bitter v. Rathman, 61 N. Y., 513; Tillman v. Shackleton, 15 Mich., 447; Duprey v. Sheak, 57 la., 361.</p> <p>cited : Wilson v. Loomis, 55 111., 352; Carter v. Martin, 15 S. W. Rep. [Ky.], 663; Payne v. Thompson, 44 O. St., 192; Bowker v. Bradford, 140 Mass., 521; Art-man v. Ferguson, 73 Mich., 146; Workman v. Price, 47 111., 22; Hyde v. Frey, 28 Fed. Rep., 819; Longdale Iron Co. v. Pomeroy Coal Co., 34 Fed. Rep., 448.</p>

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

<p>Action to Quiet Title: Review of Judgment: Suppiciency op Evidence. The evidence in this case examined, and found to support the finding of the district court, and the decree is affirmed.</p>

Error from the district court of Hall county. Tried below before Thompson, J. See opinion for statement of the case. The refusal of the auditor of public accounts to issue to the company a certificate cannot be pleaded by a member as a defense to an action for an assessment.

<p>Foreign Voluntary Assignments: Validity: Action to Recover Deposit: Rights of Assignees. One France, a citizen of Wyoming, made an assignment there for the benefit of his creditors. At the date of the assignment he had on deposit to his credit, and subject to his check, $-in a bank of this state. The day after the assignment the bank applied the money it held on deposit to the discharge of the unmatured notes of Prance held by it. The assignment law of Wyoming provided that an assignment for the benefit of creditors should be in writing, subscribed and acknowledged by the assignor, and before taking effect filed and recorded in the office of a probate judge; that within twenty days after making an assignment the assignor should make an inventory, verified by his affidavit, of his assets, liabilities, debtors, and creditors, and file the same with the probate judge; that “an assignment for the benefit of creditors is void against creditors of the assignor * * * unless it is recorded, and unless the inventory required is filed * * * within twenty days after the date of the assignment.” The assignees of France sued the bank in a court of this state for the money he had on deposit therein at the date he made an assignment, and on the trial failed to prove that France, within twenty days after making such assignment, made and filed the inventory required by the Wyoming statute, HeJcl, That the assignees were not entitled to recover, as the failure of the assignor to make and file, within twenty days, the inventory required by the law, rendered the assignment absolutely void.</p>

<p>1. Replevin: Pleading and Proof. In replevin, as in all other actions, the evidence should correspond to the allegations in the pleadings,* and where a plaintiff in replevin bases his right to the possession of the property claimed hy reason of a special ownership therein or lien thereupon, he should set out in his petition the facts with reference to such speeialf ownership or lien. Haggard v. Wallen, 6 Neb., 2~1, reaffirmed.</p> <p>2. Allegata et Probata: Variance: Replevin. A litigant cannot plead one thing and prove another. He cannot plead that he is the absolute owner of property and satisfy such plea by proving that he simply has a lien upon it; nor can he plead that he is entitled to the possession of property by virtue of a lien upon it and satisfy such plea by proving that he is the absolute owner of the property.</p> <p>3. Chattel Mortgages: Lien: Title to Property. The legal title to property pledged by a chattel mortgage remains in the mortgagor until divested by foreclosure proceedings and sale in pursuance of law; and until the title of the mortgagor is thus divested the mortgagee has merely a lien upon the property. Musser v. King, 40 Neb., 892, reaffirmed.</p> <p>4. Replevin: Chattel Mortgage as Evidence of Ownership. A plaintiff in replevin pleaded that he was the absolute owner and entitled to the immediate possession of the property replevied. The defense was a general denial. To make his case plaintiff introduced in evidence a chattel mortgage executed to him on the property. Held, Irrelevant under the issues.</p>

Heard below before Wakeley, J. The facts are set forth in the opinion. The courts have general equity powers under the common law to set aside decrees on the ground of fraud, and parties are not limited to the remedy provided by the statutes. The action is riot barred.

<p>1. BUI of Exceptions: Authority op Clerk to Sign. To confer authority upon the clerk of a district court to sign and allow a bill of exceptions it must appear that the judge is dead, or that he is prevented by sickness or absence from his district from signing and allowing the bill, or the parties to the litigation, or their counsel, must agree upon the bill of exceptions and attach thereto their written stipulation to that effect. (Section 311, Code of Civil Procedure.)</p> <p>2. -: -. The mere stipulation of counsel in a case that the clerk of the court may sign and allow a bill of exceptions is ■ not sufficient to confer authority upon him to do so.</p> <p>3. -: Review. Where it is sought to present to this court alleged errors occui-ring at the trial in a district court, a bill of exceptions settled and signed as required by law is indispensably necessary. Edwards v. Kearney, 14 Neb., 83, and Reynolds v. Dietz, 39 Neb., 180, reaffirmed.</p>

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

<p>1. Negotiable Instruments: Action by Indorsee of Note: Defense: False Representations. In a suit by an indorsee of a promissory note against the maker thereof the latter alleged as a defense that the note was given for certain stock in a milling corporation falsely represented by the original payee of the note to be solvent and earning annual dividends of thirty per cent. The undisputed evidence showed that the indorsee purchased the note before maturity, in the usual course of business, for a valuable consideration, and without any knowledge or notice of the defense pleaded by the maker. Held, That the court properly instructed the jury to return a verdict for the indorsee.</p> <p>2. -: -: Proof of Conditional Delivery: Pleading. In said suit the maker of the note offered to prove that the note was not intended to be delivered to the original payee thereof to become his property, except upon the condition that the stock of the milling corporation, for which the note was given, should yield a dividend of thirty per cent per annum; and that the original payee of said note agreed at the time of its execution and delivery to hold it in trust for him, the maker. The answer of the maker of the note did not allege an agreement on the part of the original payee of the note that he would hold such note in trust for the maker. Held, That the evidence offered was irrelevant under the issues and properly excluded.</p>

<p>1. Abandonment of Appeal by Filing Petition in Error. When a case is in its nature appealable and a transcript is filed ■within the time allowed for appeal, but thereafter, and within the time permitted for instituting proceedings in eiior, tin- appellant files and attaches to the transcript a petition in error, he will be held to have abandoned his appeal and elected to proceed in error.</p> <p>2. Partition: Decree: Review. In an action for partition the court found on the trial of the issues that partition could not be made, and in the judgment confirming the interests of the parties ordered a sale of the land. The judgment was held to be irregular, but not without jurisdiction, and as it was not complained of because of this irregularity, either by a motion for a new trial or by assignment of error, held, that it could not be reversed.</p>

<p>Contracts: Sales: Advancement of Money: Part Performance : Recovery of Payment. If a person has advanced money in part performance of a contract and then refuses to proceed, the other party being ready and willing to perform on his part all the stipulations of the agreement, the former will not be permitted to recover back what he has advanced. Walter v. Beed, 34 Neb., 544, followed.</p>

Error from the district court of Nuckolls comity. Tried below before Morris, J. The findings were erroneous in allowing the plaintiff below to recover costs. The amount sued for was within the jurisdiction of a justice of the peace. (Ray v. Mason, 6 Neb., 101; Geerev.

<p>landlord and Tenant: Lease: Change of Contract. A, the owner of land, demised the same to B, reserving as rent one-fourth of the crops ; B sublet a portion of the premises to C for a money rent; C paid a portion of the rent to B and thereafter paid the remainder to B’s administratrix. The administratrix paid the latter sum to A, who accepted the same. Meld, That the payment to, and acceptance by, A of the money operated as a relinquishment of any interest he might have had in the crop raised on the land sublet to C, and evidenced a new contract between A and B’s administratrix, whereby as to this land a money payment was to be received in lieu of rent in kind.</p>

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

Error from the district court of Saunders county. Tried below before Bates, J. The opinion contains a statement of the case. A judge has no authority to allow a writ of attachment outside of his own district, except upon a showing of absence of the judge of the district, or other disability.

<p>Error from the district court of Douglas county. Tried below before Ferguson, J.</p> <p>cited: Ryan v. State, 5 Neb., 276; Lancaster County v. Lloagland, 8 Neb., 36,; Jamieson v. People, 16 111., 257; Fugate v. McManama, 50 Mo. App., 41; Me Clay v. City of Lincoln, 32 Neb., 416; People v. Maynard, 15 Mich., 463; Rumsey v. People, 19 N. Y., 42; Town of Geneva v. Cole, 61 111., 397; Mullihin v. Oily of Bloomington, 72 Ind., 161; City of St. Louis v. Shields, 62 Mo., 247; Louisville, N. A. & C. R. Co. v. Shires, 108 111., 617; Lincoln Building & Saving Association v. Graham, 7 Neb., 173.</p> <p>cited: People v. McCallum, 1 Neb., 182; Willis v. St. Paul Sanitation Co., 50 N. W. Rep. [Minn.], 1110; State v. Weston, 4 Neb., 216; Smails v. White, 4 Neb., 356; School District v. Paddoclc, 36 Neb., 263.</p>

<p>Beplevin: -Breach of Contract. Where parties litigant had entered into a contract under which the possession of a stock of merchandise was transferred from plaintiff to defendants on a sufficient independent consideration, plaintiff could not found a superior right of possession, such as would entitle him to maintain replevin for said stock, upon an alleged breach of said contract by defendants as to retaining plaintiff in their employ at a certain rate of compensation thereby fixed.</p>

Tried below before Chapman, J. In a prosecution for larceny, witnesses called to testify to: the value of the property stolen must show that they possess knowledge of its value.

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

<p>Error from the district court of Douglas county. Tried below before Krysor, J.</p> <p>cited: Real v. Hollister, 20 Neb., 112; Mills v. Rioe, 3 Neb., 85; Rawle, Covenants, 181, 308; Sedgwick v. Hollenback, 7 Johns. [N. Y.], 380; Blanchard v. Hoxie, 34 Me., 378; Wait v. Maxwell, 4 Pick. [Mass.], 87.</p> <p>cited: West v. Bine, 4 Wash. [U. S. C. C.], 691; Ludlow v. McBride, 3 O., 231; Ward v. McIntosh, 12 O. St., 240; Rdbinoe v. Doe, 6 Blackf. [Ind.], 85; Hill v. Draper, 10 Barb. [N. Y.], 454; Jones v. Nunn, 12 Ga., 469; Nagel v. Macy, 9 Cal., 426; Shumway v. Phillips, 22 Pa. St., 151; Jones v. Bland, 112 Pa. St., 176; Brown v. Colson, 41 Ga., 42;' Day v. Alverson, 9 Wend. [N. Y.], 223; Caldwell v. Kirkpatrick, 6 Ala., 60; Eakin v. Brewer, 60 Ala., 579; Douglas v. Ruffin, 38 Kan., 530; Spitznagle v. Vanhessch, 13 Neb., 338.</p>

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

<p>1. Vendor and Vendee: Quieting Title: Trial: Champerty: Tax Liens. One Wright brought suit against one Grimes to cancel and he allowed to redeem from the lien of a void tax deed held by Grimes against- the land of Wright, and to have the title to said lands quieted in him. Wright employed one Chamberlain, an attorney at law, to institute and prosecute said action, and as compensation for his services in the premises duly executed to him a conveyance for an undivided one-half of the real estate in controversy. While the action was pending Grimes, with actual knowledge that Wright had already conveyed one-half the real estate to Chamberlain and that such conveyance was unrecorded, for a consideration paid to Wright, obtained from him a dismissal of said suit and a quitclaim deed to him, Grimes, for all the real estate involved therein. Held, (1) That the decree of the district court canceling the lien of the void tax deed, and canceling the deed obtained from Wright by Grimes as against an undivided one-half of said real estate, and permitting Chamberlain to redeem one-half of said real estate from the lien of said tax deed, and quieting the title to one-half of said premises in Chamberlain, was correct; (2) that if the contract between Wright and Chamberlain was champertous, it was not a defense of which Grimes could avail himself in this action.</p> <p>2. Trial: Review. If a defendant in a trial court omit to make a meritorious defense which he might have made, he will be bound by the record made there, and cannot interpose such defense for the first time in this court. Courtnay v. Price, 12 Neb., 188, reaffirmed.</p>

<p>1. Stipulation to Admit Affidavit for Continuance as Evidence of Absent Witness: Excluding Testimony: Review. Where a litigant files an application for a continuance on the ground of the absence of a material witness, and the adverse party stipulates in open court that if the application for a continuance be overruled, the affidavit made for a continuance may be read on the trial as the evidence of the absent witness, such stipulation is valid and binding, and every fact which it is alleged in the affidavit the absent witness would testify to which is competent, material, and relevant testimony under the issues the applicant for a continuance is entitled to read from the affidavit in evidence to the jury, and it is reversible error for the court to exclude such evidence.</p> <p>2. Evidence: Affidavit for Continuance. And in such case the facts which the affidavit alleged the absent witness would testify to are not incompetent, irrelevant, immaterial, or improper evidence, because such facts are stated in the form of a conclusion.</p>

<p>1.Judgment Non Obstante Veredicto. Section 440 of the-Code of Civil Procedure provides a remedy substantially like the motion for judgment non obstante veredicto of the common law. Such a judgment can only be rendered when the pleadings of the party in whose favor the verdict was rendered confess facts, entitling the other party to judgment.</p> <p>2.-: Motion eor New Trial. In a case in which a party is entitled to a jury trial, and where the pleadings do not confess the right to a judgment, the court cannot disregard the verdict and enter such judgment as the evidence warrants. If the-verdict is not sustained by the evidence, the remedy is by motion for a new trial on that ground.</p> <p>3.-: -. Where the verdict is general and is unassailed by a motion for a new trial, judgment must, except in the cases stated in the first paragraph of this syllabus, be entered in conformity with the verdict.</p>

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

<p>Error from the district court of Hayes county. Tried below before Cochran, J.</p> <p>cited: Doom, v. Walker, 15 Neb., 339.</p>

Error from the district court of Pierce county. Tried below before Allen, J. The facts are stated in the opinion. The court erred in giving the sixth and seventh instructions on its own motion and in refusing the first instruction requested by plaintiffs.

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

Heard below before Allen, J. The facts are stated in the opinion. The directors and officers of the corporation are trustees of the creditors and must manage the property and assets with strict regard to their interests; and if the directors and officers are also creditors, while the insolvent corporation is under their management, they cannot secure for themselves any preference or advantage over other creditors.

Heard below before Doane, J. A statement of the case appears in the opinion. The assignment of the lease to Yan Kloster was valid, and was recognized as such by the corporation and all other parties who had any connection with the transaction. (Singer Mfg.

Tried below before Jackson, J. See opinion for statement of the ease. cited: State v. Bays, 31 Neb., 514; 11 Am. & Eng. Ency. Law, 638; State v. Brandon, 28 Ark., 410; Black, Intoxicating Liquors, pp. 158 — 221; State v. Barton, 27 Neb., 476. The action taken by the village board before the expiration of the two weeks’ notice of the application for license was void.

<p>Action to Recover Penalty for Taking Usurious Interest: Limitation. The limitation of two years within which an action under the provisions of section 5198, Revised Statutes, United States, may be commenced for the recovery from a national bank of twice the amount of usury paid to it dates from the actual payment of such interest, and not from the bank’s reservation of it from the original loan by way of discount. Following First Nat. Bank of Dorchester v. Smith, 36 Neb., 199, and Smith v. First Nat. Bank of Crete, 42 Neb., 687.</p>

<p>Error from the district court of Saline county. Tried below before Bush, J.</p> <p>cited: Albert v. Fwohig, 35 Neb., 563; Martin v. Miles, 40 Neb., 135; People v. Cieott, 16 Mich., 283; Powers v. Reed, 19 O. St., 189; McCrary, Elections, sec. 463; State v. Marston, 6 Kan., 524: Russell v. State, 11 Kan., 308; Morris v. Valaningham, 11 Kan., 269; People v. Thacher, 14 Am. Rep. [N. Y.], 312.</p> <p>cited: Fnewold v. Olsen, 39 Neb., 59; First Nat. Rank of Madison v. Carson, 30 Neb., 104; Bell v. Byerson, 77 Am. Dec. [Ia.], 145; Bunn v. State, 35 Am. Dec. [Ark.], 61; Con-very v. Conger, 22 Atl. Rep. [N. J.], 549.</p>

<p>1. Extradition: Habeas Corpus: Review: Evidence. Where a requisition is made upon the governor of one state by the governor of another state for the return of an alleged fugitive from justice, and the requisition is accompanied by a copy of the complaint filed in the court to which the party whose return is demanded was held to appear by the examining magistrate, and also a copy of the evidence adduced at the preliminary hearing before the magistrate, and on being arrested under a warrant issued by the governor in compliance with the request of such requisition the party sues out a writ of habeas corpus in the district court, or before a judge thereof, and to reverse the order of the district court or judge denying the relief prayed for brings the case to this court by petition in error, the evidence taken at the preliminary hearing will not be examined for the purpose of ascertaining whether it sustains a charge of the crime alleged in the information, nor to determine whether it supports the finding of the examining court that there was probable cause to believe the party had committed the crime with which he was charged.</p> <p>2. -: Requisition: Copy op Indictment: Evidence op Crime: Foreign Law. Where a requisition is accompanied by a copy of an indictment found by a grand jury, the fact that an indictment has been found is at least prima facie evidence that the act charged is a crime and is so regarded in the state where the act was done; and where the policy of prosecution by information has been established by law, and it appears from the record accompanying the requisition that the party whose rendition is asked has been accorded a preliminary examination, as a result of which he was held to appear and answer to the charge in a higher court and has been duly charged with the crime in the higher court in an information filed therein, a copy of which is attached to the papers presented with the requisition to the governor, such information is of as high a grade as a criminal pleading as an indictment, and entitled to the same weight as evidence and will be so considered.</p> <p>3. Habeas Corpus: Review. The proceedings in a hearing on habeas corpus may be reviewed on error; but being in its nature a civil proceeding, such review must be by petition in error.</p> <p>4. -: -. Section 902 of the Code, wherein it states: “Until the legislature shall otherwise provide, this Code shall not affect proceedings on habeas corpus," etc., held, to apply to “the proceedings relating to the application for the writ of habeas corpus and its hearing, and not to the manner of their review or the removal of the case for such purpose.</p> <p>5. -: Motion for New Trial: Review. Where there is a trial in a habeas corpus case and it is sought to review alleged errors occurring during the trial, a motion for a new trial must be made embodying the errors of which complaint is made, and presented to the trial court or judge and a ruling obtained thereon, to entitle the complaining party to such review.</p>

<p>Motion to dismiss proceeding in error on the ground of defect of parties.</p>

Motion to dismiss proceeding in error on the ground that the transcript was not filed within a year from the rendition of judgment.

Motion by appellees to require appellant to give additional supersedeas bond pending appeal from a decree of the district court for Douglas county.

Error from the district court of Saline county. Tried below before Hastings, J. The facts are stated by the commissioner. The petition does not state facts sufficient to constitute a cause of action when it merely alleges that the negligence consists in the failure at the time of construction to block the guard rails and switches.

<p>1. Bridges Across County Boundaries: Repairs: Man damus to County Commissioners: Precinct Bonds. “ Louisville precinct,” a political subdivision of Cass county, voted its bonds to aid in tbe construction of a free wagon bridge across the Platte river. The county commissioners of Cass county issued the bonds voted, sold them and used the proceeds in constructing a free wagon bridge across the Platte river near the village of Louisville, in said county, and at a point where the river is the dividing line between the counties of Cass and Sarpy. The southern portion of the bridge became out of repair and unsafe for travel. The county commissioners of Cass county were notified thereof by three taxpayers and citizens of said county and requested to repair the same. The commissioners refused to make the repairs on the ground that it was not the duty of Cass county to keep such bridge in repair. To compel the commissioners to repair the bridge said taxpayers instituted proceedings in mandamus. Reid, (1) That as the statute makes the middle of the main channel of the Platte river the boundary line between the counties of Cass and Sarpy, the legal presumption is that the south half of such bridge is in Cass county, and that it is the duty of the authorities of said county to keep said portion of said bridge in repair, and that they would be compelled to do so by mandamus proceedings instituted and carried on by and in the name of said citizens and taxpayers; (2) that saidbridgeis not the property of said“ Louisville precinct; ” (3) that such bridge is the property of the public and a part of the public highways of the state.</p>

Heard below before Harrison, J. The facts are stated by the commissioner. The appellee Fannie M. Randall has no right to recover, either directly or as a credit upon her indebtedness on the mortgage, the premiums or stock dues paid before default, and which have been duly forfeited and so declared. (Fowler v. Woodward, 26 Minn., 349; Northwestern Mutual Efe Ins.

<p>Building and Loan Associations: Forfeiture: Cancellation of Mortgages: Foreclosure: Accounting: Payments on Stock. For syllabus see Randall v. National Building, Loan & Protective Union 42 Neb., 809.</p>

Error from the district court of Harlan county. Tried below befóte Gaslin, J. See opinion for statement of the case. The plaintiffs contend that an attorney by signing a bond as surety is bound as such when the bond is approved. (Tessier v. Croioley, 17 Neb., 209.) L. B. McManus was a joint trespasser with the sheriff.

<p>Jurisdiction of County Court of Contest of Election of School District Officer. The jurisdiction conferred upon county courts in section 71, chapter 26, Compiled Statutes of 1893, to hear and determine contests of election of certain officers therein stated, does not include an action to contest the election of a school district officer.</p>

<p>1. County Attorney: Assistant Counsel: Employment: Proof. Where attorneys claim compensation on account of services rendered as assistants of the county attorney in the trial of a criminal cause, they must make proper proof that their employment by the county attorney was under the direction of the district court of the proper county.</p> <p>2. -: -: Trial on Change of Venue: Compensation. Attorneys duly employed by the county attorney of one county to assist in the trial of a cause therein pending are not required or authorized, even on the request of such county attorney, to' follow said cause on change of venue to another county; and if, notwithstanding this fact, they do so, they will not thereby entitle themselves to compensation for such unauthorized assistance as thereafter they may render.</p>

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

<p>Sufficiency of Evidence to Sustain "Verdict: Review. The evidence examined, and held sufficient to sustain the verdict.</p>

Motion to dismiss from the supreme court a'proceeding in error from the district court of Douglas county, affirm the judgments alleged to be erroneous, and, under section 596 of the Code, assess against the plaintiff in error five per cent of the amount due from him. The grounds of the motion were that the plaintiff in error brought the case to the supreme court for the purpose of delay, and failed to file transcript and briefs.

<p>1. Recovery for Commission Due Real Estate Agent: Sufficiency of Evidence. Evidence examined, and held to sustain the verdict.</p> <p>2. Costs: Judgment in District Court: Amount. In an action brought in the district court the plaintiff obtained judgment for $200. Seld, That he was not entitled to recover costs, but that each party is required to pay his own costs.</p> <p>3. -: Review: Motion to Retax. In order to review the question of the taxation of costs a motion to retax must be filed in the trial court and a ruling obtained thereon.</p>

Heard below before Smith, J. The opinion contains a statement of the case. A depositor in an insolvent bank, who also owes it for borrowed money, cannot set off his deposit against such debt, although the deposit consists of the borrowed money. (Hannon v. Williams, 34 N. J. Eq., 255; Bunnell v. Collinsville Savings Society, 38 Conn., 203; Hillier v. Allegheny Mutual Ins. Co., 3 Pa.

<p>1. Larceny: Value of Property: Verdict. The provision of section 488 of the Criminal Code that the jury on a conviction for larceny “ shall ascertain and declare in their verdict the value of the property stolen,” etc., requires a definite finding, and a conviction for grand larceny cannot be sustained upon mere estimate by the jury of the value of the property stolen.</p> <p>2. -: - — : -. A verdict in the following form: “We, .the jury in the above entitled cause, duly impaneled and sworn, do find the defendant James McCormick guilty as he stands charged. Amount, estimated, of stolen property, $95. I. A. Baker, Foreman,” held, an estimate only, and not an ascertainment of the value of the property within the meaning of the statute.</p>

The opinion contains a statement, of the case. A wife executing a mortgage on her separate property to secure the individual debt of her husband occupies the position of a surety.

<p>Mechanics’ Liens: Effect of Taking Collateral Security: Waiver. The right to a mechanic’s lien, or to enforce it by the proper action, if filed, is not lost nor waived by the acceptance of collateral security for the payment of the account for material furnished or labor performed, unless such was the intention of the parties in the giving and taking of such security.</p>

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

Tried below before Neville, J. The facts are stated by the commissioner. An information must be sworn to before a judicial officer authorized to administer the oath, and not before, a notaiy public. (Richards v. State, 22 Neb., 150; Davis v. State, 31 Neb., 252.) The mandate commanding the county clerk to perform an act contrary to the express provisions of the statute was unauthorized and void.

Original action to tvind up the affairs of the State Bank of Wahoo, Nebraska, under the banking law of 1889. Upon demand of Moriz Ladenburger for payment of his-claim in full from the assets of the bank the receiver petitioned the court for instructions.

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

<p>1. Railroad Companies: Duty to Trespassers on Track: Negligence. The engineer in charge of a railroad train may presume that a trespasser discovered on the track is in possession of his senses, that he will appreciate the danger and act with discretion. He is therefore under no obligation to stop his train or even lessen the speed thereof before discovering that such trespasser is in iminent danger of personal injury.</p> <p>2. -: -. Such presumption has no application to persons incapable of caring for themselves, such as the very young and the helpless.</p>