Volume 43 — Nebraska Reports

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

Eriiob from the district court of Lancaster county. Tried below before Tibbets, J. See opinion for statement of the case. The account was sold in Iowa. To support this action the act must have been wrongful or punishable in Iowa, where it took place. Whatever would be a good defense to the action if brought there, must be a good defense here and everywhere.

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

<p>1. A recognizance for an appeal from a conviction for a misdemeanor before a justice of the peace is invalid, if the court where, and before which, the prisoner is to personally appear is not stated in the recognizance.</p> <p>2. Questions Not Raised Below: Review. The constitutionality of sections 152, 153, and 154 of the revenue law of 1879 is not decided.</p>

<p>1. Failure to Except to Order Overruling Motion for New Trial: Review. In a cause brought to this court on error we will not review the evidence for the purpose of ascertaining whether it sustains the finding or verdict, nor the rulings on the admission or exclusion of testimony, where no exception was taken to the order of the court below overruling the motion for a new trial.</p> <p>2. Sufficiency of Findings. Held, That the findings support the judgment.</p>

<p>1. Assault With. Intent to Ravish Child: Intention of Accused: Evidence. In a prosecution for an assault with intent to-ravish and carnally know a female child under the age of consent (Criminal Code, sec. 12) the fact that the intention of the prisoner at the time of the assault proved was to have carnal knowledge of the prosecutrix with her consent and not otherwise is immaterial.</p> <p>2. -: Evidence. The prisoner, who had tendered his services to see the prosecutrix, nine years of age, home from a dance in the village of their residence, attempted while on the way from the dance hall to decoy her into a barn at or after the hour of midnight, and desisted only when he found the barn was locked. About that time, hearing some persons approaching, he seized her in his arms and hastily carried her into a privy in the rear of a store near by, and seventy-five feet from the sidewalk. While in his arms he prevented her from crying out hy putting his hands over her mouth; and, according to her testimony, he thrust his finger down her throat, lacerating it severely and causing her considerable pain. When he entered the privy with the prosecutrix the latter stumbled and fell, when the prisoner pushed her head down through one of the holes in the seat. At that point some men on the street hearing her cries hastened to her relief, but were compelled to break the door of the privy which the prisoner had locked on entering. Held, To sustain the verdict of assault with intent to ravish, under sections 12 and 14, Criminal Code.</p> <p>3. Criminal Law: Intoxication: Evidence. While intoxication is no excuse for an assault committed when under the influence thereof, it is proper to be considered by the jury for the purpose of determining whether the prisoner was at the time in question capable of entertaining the specific intent charged.</p>

Tried, below before Bates, J. The facts are stated in the opinion. The information fails to charge the accused with any crime other than assault and battery. (Consolidated Statutes, sec. 5595; Buchanan v. State, 13 S. W. Rep. [Tex.]v 1000.) The court should have separated the state’s witnesses during the trial. (1 Greenleaf, Evidence, 432.) Proof of the physical condition of the prosecutor at the time of the trial was erroneously admitted in evidence.

<p>Usury. Where a note was given, for $1,750, the amount of a loan, it being agreed between the parties to the loan that it was to hear interest at ten per cent per annum, the loan to run for five years and the note given was made to draw interest at seven per cent per annum and the sum of $208.50 was retained from the amount of the loan as and for a payment of interest in advance, and this sum, together with the seven per cent to be collected semi-annually during the existence of the loan, not amounting to more than ten per cent per annum for the amount of the loan, held, not a usurious transaction.</p>

<p>Appeal from the district court of Douglas county. Heard below before Hopewell, J.</p> <p>cited: Pearsoll v. Chapin, 44 Pa. St., 13; Seylar v. Carson, 69 Pa. St., 81; Dillon v. Merriam, 22 Neb., 151; Doney v. Courtnay, 24 Neb., 583; Wardell v. Union P. P. Co., 103 U. S., 651; Pettit v. Black, 8 Neb., 52; Grant v. Lloyd, 12 Sm. & M. [Miss.], 191; Des Moines & M. B. Co. v. Alley, 3 McCrary [U. S. •C. C.], 589; Reedv.Exvm, 84 N. Car., 430; Flash v. Willcerson, 20 Fed. Rep., 257; Clements v. Moore, 6 Wall. {IT. S.], 299; Boyer v. Barr, 8 Neb., 68; Fay v. Parker, 53 N. H., 342; Albrecht v. Walker, 73 111., 69; Boose v. Perkins, 9 Neb., 304; Riewe v. McCormick, 11 Neb., 261; Boldt v. Budwig, 19 Neb., 739Homan v. Baboo, 2 Neb^ 291; Aultman v. Steinan, 8 Neb., 109; Swift v. Dewey,. 20 Neb., 107; Buchanan v. Griggs, 20 Neb., 165.</p>

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

<p>Review: Failure to File Briefs. No brief having been file® by either party, the judgment, conforming to the pleadings and the evidence, is affirmed. Following Damon v. City of Omaha, 38 Neb., 583.</p>

Error from the district court of Thayer county. Tried below before Hastings, J. contending there was error in the court’s charge to the jury, cited: Moorhead v. Adams, 18 Neb., 574; Wasson v. Palmer, 13 Neb., 378.

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

<p>¡Review: Conflicting Evidence. A finding and j udgment of the district court will not be disturbed when the evidence upon which the cause was tried was conflicting, without a decided preponderance in favor of appellant.</p>

<p>1. Attachment on Land: Levy: Posting Copy. A levy of an order of attachment on real property by posting a copy thereof is not effective as against third parties, when there is an occupant of such property.</p> <p>2. -: Levy Upon Equitable Interest. If there is no possesion of real property by an attachment defendant having an ec u hie interest therein, no valid levy and sale can be made upuii such equitable interest, neither can it under such circumstances be subjected otherwise than by invoking the aid of a court of chancery. Following Dworah v. More, 25 Neb., 735.</p>

<p>Usury: Interest on Note. In a suit by the original payee of a promissory note tainted with usury, sucb payee is not entitled to recover any interest whatever, and can recover only the actual amount of money advanced by him in consideration of the execution of such note, diminished by all payments of both principal and interest made thereon.</p>

Error from the district court of Knox county. Tried below before Allen, J. cited: Cobbey, Chattel Mortgages, see. 434; Deeter v. Sellers, 102 Ind., 458; Nichol v. Stewart, 36 Ark., 612; Du/rkee v. Stringham, 8 Wis., 1. cited: 1 Lindley, Partnership, sec. 11; Pleasants v. Pant, 22' Wall. [U. S.], 116; Chapman v. Lipscomb, 18 S. Car., 222; Dils v. Bridge, 23 W. Ya., 20; Beckwith ». Talbot, 2 Col., 639; 17 Am. & Eng. Ency. Law, 852; Plunkett v. Dillon, 3 Del. Ch., 498.

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

Tried below before Norris, J. Statements of facts and proceedings appear in the opinion of the commissioner. The fourteenth instruction, given by the court on its own-motion, was erroneous. (Leonard v. Territory, 7 Pac. Rep-[Wash.], 873; Commonwealth v. Miller, 139 Pa. St., 77.) The court erred in giving the fifteenth instruction on its own motion. It is erroneous to give an instruction which is more in the nature of an argument than a statement of the law.

Error from the district court of Gage county. Tried below before Appelget, J. The facts are stated by the commissioner. It was an abuse of discretion for the trial court to overrule the motion for a continuance.

Error from the district court of Douglas county. Tried below before Irvine, J. The opinion contains a statement of the case. The language complained of was not in itself libelous, and there was in the petition no colloquium or innuendo laid by the defendant in error by which it could be made so. The court erred in not entering judgment for the plaintiff in error notwithstanding the verdict.

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

Rehearing of case reported in 41 Neb., 563. in arguing that the evidence submitted was hot sufficient to sustain a finding in favor of the plaintiff upon the merits either in an action at law or in equity, cited: Emery v. Johnson, 37 Neb., 53; McClanahan v. McKinley, 52 la., 222; Dickson v. Knox, 71 la., 728; Poland v. Brownell, 131 Mass., 138; Salem India Rubber Co. v. Adams, 40 Mass., 256; Brown v. Leach, 107 Mass., 364; Ely v. Stewart, 2 Md., 408; Whiting v. ILill, 23…

<p>Review: Sufficiency of Evidence. No question was presented in this ease except the sufficiency of the evidence. The evidence was held sufficient.</p>

<p>Error from the district court of Saliue county. Tried below before Morris, J.</p> <p>cited: Stewart v. Hawley, 21 Wend. [N. Y.], 552; Harman v. JBrotherson, 1 Denio [N. Y.], 537; Weaver v. Deuendorf, 3 Denio [N. Y.], 117; Horton v. Auchmoody, 7 Wend. [N. Y.], 200; Carter v. Dow, 16 Wis., 317; Wall v. Trumbull, 16 Mich., 228; Comstock v. Crawford, 3 Wall. [U. S.], 396; Long v. Burnett, 13 la., 28; 2 Freeman, Judgments, 524, 529; Brown v. Wood, 1 Bailey [S. Car.], 457; Butler v. Potter, 17 Johns. [N. Y.], 145; Busteed v. Parsons, 54 Ala., 393; Maries v. Townsend, 97 N. Y., 590; Bamberger v. Kahn, 43 Hun [N.. Y.], 411; Cooley, Torts, 460; Savacool v. Boughton, 5 Wend. [N. Y.], 170.</p>

<p>Error from the district court of Otoe county. Tried below before Chapman, J.</p> <p>cited: Wortendyke v. Meekham, 9 Neb., 21; Dobbins v. Oberman, 17 Neb.,. 163; Sedgwick v. Dixon, 18 Neb., 545; Koehler v. Dodge, 31 Neb., 328; Helme/r v. Commercial Bank, 28 Neb., 47; Cropsey v. Averill, 8 Neb., 152; Western Cottage Organ Co. v. Boyle, 10 Neb., 409; Coakley v. Christie, 20 Neb., 509; Bank of Orleans v. Barry, 1 Denio [N. Y.], 116; Suydam v. Westfall, 2 Denio [N. Y.]. 205; Shriver v. Lovejoy, 32 Cal., 574; Missouri Loan . ink v. Garner, 1 Mo. App., 200; Bond v. Storrs, 13 Conn., 412; Dye v. Dye, 21 O. St., 86; Commercial Bank v. French, 21 Pick. [Mass.], 486; Buchner v. Liebig, 38 Mo., 188; Scott v. Shirk, 60 Ind., 160; Hamilton v. Vought, 5 Yroom [N. J.], 191; 2 Randolph, Commercial Paper, sec. 998; Goodman v. Simonds,' 20 How. [U. S.], 343; Bank of Pittsburgh v. Neal, 22 How. [U. S.]s 96; Murray v. Lardner, 2 Wall. [U. S.], 110.</p> <p>cited: Shawv. Clark, 49 Mich., 384; Lakev. Reed, 29-Ta., 258; Myers v. Bealer, 30 Neb., 281; National Bank of North America of Boston v. Kirby, 108 Mass., 497; Parsons v. Jackson, 99 U. S., 434; New-ell v. Gregg, 51 Barb. [N Y.], 263; Chouteau v. Allen, 70 Mo., 339; Dillon v. Scofield, 11 Neb., 419; Wilson v. Burney, 8 Neb., 39; Burr v. Boyer, 2 Neb., 265; Parsons,. Contracts, 17, 26 and note 3; Byles, Bills, p. 241; Enterprise Distilling Co. v. Bradley, 17 111. App., 509; Atén v. Brown, 14 III. App., 453; Norman v, Waite, 30 Neb., 302; O’ -Leary v. Iskey, 12 Neb., 136; Courtnay v. Price, 12 Neb.,. 192.</p>

<p>1. Homicide. Evidence examined, and held sufficient to sustain the verdict of manslaughter.</p> <p>2. -•: Instructions. An instruction in a prosecution for murder to the effect that the jury may, if the evidence warrants, convict of murder in the first degree, murder in the second degree, or manslaughter, is not objectionable on the ground that it excludes a verdict of acquittal and requires the jury to convict of a felonious homicide, particularly where in other paragraphs they are cautioned against conviction unless satisfied of the guilt of the prisoner beyond a reasonable doubt.</p> <p>3. -: -: “Malice.” It is proper to instruct that “malice,” in its legal sense, denotes that condition of. mind which is manifested by the intentionally doing of a wrongful act without just cause or excuse. It means any willful or corrupt intention of the mind.</p> <p>4. -: Justification. The hare belief of one assaulted that he is about to suffer death or great bodily harm will not of itself justify him in taking the life of his adversary. There must exist reasonable ground for such belief at the time of the killing, and the existence of such grounds is a question of fact for the jury.</p> <p>5. -: "Weight of Prisoner’s Testimony. It is not error in a trial for murder to instruct that the jury may take into consideration the interest of the prisoner in weighing his evidence. (St. Louis v. Slate, 8 Neb., 405.)</p> <p>6. Instructions. Mere non-direction by the trial court affords no ground for the reversal of a judgment unless proper instructions have been asked and refused. (Sill v. State, 42 Neb., 503.)</p> <p>7. Mew Trial: Nicwly-D'iscoveked Evidence. It is not error to refuse a new trial on the ground of newly-discovered evidence when the statements, in the affidavit upon which it is based, are contradicted by the sworn evidence of the proposed witness.</p>

<p>1. Taxes: Collection. The warrant required by law to be attached to a tax list when it is delivered to a county treasurer for collection is the source of his power and authority to resort to the proceedings provided by statute for enforcing the collection of the taxes when it becomes necessary so to do. If no warrant is so attached he lacks the authority to compel the payment of the taxes.</p> <p>2. -: -: Authority. Where the tax list was prepared by the county clerk by transcribing the assessment into two books and Ihe warrant directing the treasurer to collect the taxes contained in the list was attached to but one of the books, and it was admitted that the two books constituted the tax list for the year, the warrant attached to the one book was a sufficient authorization to the treasurer to collect any taxes in the list as shown in either book, in any manner provided by law.</p> <p>3.-: Lien: Extent. The taxes assessed on personal property are not confined as a lien to the property upon which they are assessed, but are a lien upon all personal property owned by the person assessed, during the existence of the taxes, from and after the delivery of the tax list to the county treasurer for collection.</p> <p>4. -: -: Enforceable by Replevin. The county treasurer is ordinarily restricted in the enforcement of the collection of taxes to the use of the remedies provided by statute, but where, as in this case, the taxes are a lien on the property and he seeks to gain possession by virtue of such lien and the property is in the possession of other parties who claim the right of possession and contest the treasurer’s right to take the property, the legislature having failed to provide any means or remedy, the right to resort to the proper legal proceeding is implied, and replevin being the proper action, he may maintain such an action and have his right to possession adjudicated.</p> <p>5. --: -: Priority. The lien of the taxes held superior in this case to the liens created upon the property by chattel mortgages executed, subsequent to the delivery of the tax list to the county treasurer.</p>

<p>Error from the district court of Dawes county. Tried b'low before Kinkaid, J.</p>

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

Heard below before Tibbets, J. The sheriff's sale was an alienation within the meaning of section 7, chapter 23, Compiled Statutes. (Smith v. Addle-man, 5 Blackf. [Ind.], 407 ; Powell v. Monson & Brim-field Mfg. Go., 3 Mason [U. S.], 374; Wood v. Morgan, 56 Ala., 397; Price v. Hobbs, 47 Md., 359.) And the value at the time of such alienation should be the basis of computing the dower interest.

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

<p>Foreclosure: Decree: Effect as to Parties Disclaiming. In an action to foreclose mortgages persons who were made defendants upon allegations charging them with being the owners of the equity of redemption, but against whom no personal relief was sought, cannot be heard to complain of a decree affecting merely the land when by their pleadings they have disclaimed all interest therein.</p>

Heard •below before Kinkaid, J. cited, contending that there was error in admitting the record of assignment: Buck v. Gage, 27 Neb., 306; that no receiver should have been appointed: Sea Ins. Co. v. Stebbins, 8 Paige Ch. [N. Y.], 565; Morris v. Branchaud, 52 Wis., 191; Burlingame v. Farce, 12 Hun [N. Y.], 148; Smith v. Kelley, 31 Hun [N. Y.], 387; Haas v. Chicago Building Society, 89 111., •502. cited as to the appointment of the receiver: Jacobs v. Gibson, 9 Neb., 382.

<p>1. Liquors: Cancellation of License: Partial Repayment of Fee. It is the settled law of this state, where a liquor license has been issued by a city council, and on appeal such license is canceled, that the licensee is entitled to a repayment pro tanto of the sum paid for the same for the unexpired time. Jjydick v. Korner, 15 Neb., 500, and State v. Weber, 20 Neb., 473, followed.</p> <p>2, Review. Seld, That the findings are contrary to the admitted facts in the case.</p>

<p>1. Fraudulent Conveyances: Consideration. It is firmly established in this state that a pre-existing debt is a sufficient consideration for a chattel mortgage, and protects the mortgagee to the same extent as had there been a new consideration.</p> <p>2. -: Preferences. Another rule equally well settled by a long line of judicial decisions is that an insolvent debtor may in good' faith pay or secure one creditor to the exclusion of others.</p> <p>3. -: Chattel Mortgages : Possession. Although the possession of mortgaged chattels by the mortgagor raises the presumption that the mortgage was fraudulent, yet such presumption is not conclusive, but may be overthrown by evidence showing that the instrument was given in good faith.</p> <p>4. -: -. The presumption of fraud arising from the possession of mortgaged chattels by the mortgagor remains only so long as he retains possession. There is no such presumption after the mortgagee obtains possession of the property.</p> <p>5. -. Certain instructions given and refused not reviewed, because of the insufficiency of the assignments relating thereto in the petition in error.</p> <p>6. Chattel Mortgages: Foreclosure. Mortgaged chattels should • be disposed of according to' the stipulation of the mortgage and the provisions of the statute relatiug to the foreclosure of chattel mortgages. If the mortgagee does not do so, that, of itself, will not invalidate the lien of the mortgage. If he fails to sell the property, or if he disposes of the same in a mode contrary to the stipulation of the parties, or the requirements of the statute, the mortgagee must account for its value.</p>

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

<p>xteview. A cause tried in the district court to a jury cannot he reviewed in this court before a final judgment has been entered upon the verdict in the court below.</p>

<p>1. Principal and Surety. The relation of principal and surety-may exist without the knowledge or consent of the principal, provided it is voluntarily assumed by the surety for the accommodation of the beneficiary and based upon a sufficient consideration.</p> <p>2. -: Negotiable Instruments: Fraud. In an action on a note by the payee against two makers, one answered alleging that he was surety thereon for the other, that he was induced to sign said note by means of the representations of the plaintiff to the effect that he had been requested by the principal to become surety for him, the principal, but that such statement was-wholly false, and made for the purpose of fraudulently inducing him to become a party to said note. Held, To state a defense.</p> <p>3. Evidence examined, and held to sustain the judgment complained of.</p>

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

Heard below before Iryine, J. The opinion contains a statement of the case. The copy of the mortgage should be admitted in evidence and considered. (Minor v. Tillotson, 7 Pet. [U. S.], 99; Proprietors of Braintree v. Battles, 6 Vt., 399; Peay v. Picket, 3 McCord [S. Car.], 322.) The mortgage is not fraudulent, and if it were, the defendants cannot complain.

<p>A justice of the peace in this state has no authority to settle a bill of exceptions by which it is sought to preserve the testimony used in the hearing upon a motion to discharge an attachment.</p>

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

<p>Review: Interlocutory Orders. An order of a district court which, in effect, determines that an appeal from an inferior court had been perfected in due time allowed by law for such purpose and places the case upon its docket for adjudication, held, not a final order and not subject to review upon error to this court.</p>

<p>County Board: Passing on Claims. Where a claim is presented to a county board for its examination and allowance or rejection, in the examination of such claim the board acts judicially, and its order or judgment allowing or disallowing the claim is conclusive unless reversed in appellate proceedings.</p>

<p>Review. In this case there is presented by the argument of plaintiff in error only the sufficiency of the evidence to sustain the verdict. As this evidence was conflicting, the conclusion reached by the jury will not be disturbed.</p>

Error from the district court of Nemaha county. Tried below before Broady, J. cited, as to the wife’s right of action: Lynch v. Knight, 9 H. L. Cas. [Eng.], 577; Westlahe v. Westlahe, 34 O. St., 621; Mehrhoff v. Mehrhoff, 26 Fed.

Error from the district court of Douglas county. Tried below before Davis, J. cited in support of the direction of the verdict: Hyatt o. Brooks, 17 Neb., 33; Lent v. Burlington 6s M. B. JR. Co., 11 Neb., 201; Burlington 6s M. R. B. Co. v. Wendt, 12 Neb., 76; Post v. School District, 19 Neb., 135; Burns v. City of Fairmont, 28 Neb., 866; Hughes v. Ins. Co.'of North America, 40 Neb., 626.

<p>Appeal: Waiver by Payment Must be Voluntary. A motion of an appellee to dismiss an appeal because of the payment by appellant of the judgment from which an appeal had been taken must be overruled when it is shown that such payment was not voluntary, but was made to avoid a sale of appellant’s property . on an execution issued for the satisfaction of the aforesaid judgment.</p>

Error from the district court of Perkins county. Tried below before Church, J. The animal was not running at large. (Bouvier’s Law Dictionary; Thompson v. Corpstein, 25 Cal., 653.) Hansen is chargeable with Fatchett’s negligence and cannot recover.

Error from the district court of Hitchcock county. Tried below before Welty, J. Defendants should have been allowed to plead sufficient facts to show that the charges were acted upon by the church. (Hale v. Wiglon, 20 Neb., 83.) The plea of privilege was sufficient and the evidence proffered thereunder was wrongfully excluded.

<p>1. A new trial is a statutory remedy, and can be granted by a court of law only upon the grounds, or some of them, provided for by the statute.</p> <p>2. Review. An assignment, “ Errors of law occurring at the trial,” is sufficient, in a motion for a new trial, to enable the district court to determine whether it erred in admitting or rejecting evidence; but under such an assignment in a petition in error the supreme court cannot review anything.</p> <p>3. -: Verdict: Conclusiveness. The supreme court is not invested with authority by the constitution or laws of the state to set aside the verdict of a jury, having for its support sufficient competent evidence, even though this court may be of opinion that had it been the triers of the case, it would have reached a different conclusion.</p> <p>4. Trial by Jury. To have disputed questions of fact, put at issue in actions at law, tried and determined by a jury is one of the rights guarantied by the constitution of the state to its citizens.</p> <p>5. The evidence examined, and held to support the finding of the jury that “The instrument introduced in evidence in controversy is not the last will and testament of Carl Julius Gasch, deceased.”</p>

Error from the district court of Douglas county. Tried below before Ferguson, J. cited, as to the relative rights of traveler and company: O’Neill v. Drydoclc E. B. & B. B. Co., 29 N. E. Rep. [N. Y.], 85; Shea v. St. Paul City B. Co., 52 N. W. Rep. [Minn.], 902. In support of the instructions; Omaha Horse B. Co. v. Doolittle, 7 Neb., 485; Union P. P. Co. v. Pasmussen, 25 Neb., 813; Lynn & B. P. Co. v. Boston & L. P. Co., 114 Mass., 88.

<p>1. Attachment: Pleading. In an action accompanied by attachment proceedings the filin'g by the defendant of a motion to dissolve the attachment does not excuse him from pleading to the petition. Although such motion be pending, if he fail to plead to the petition within the time provided by law, his default may be entered and the plaintiff proceed to judgment.</p> <p>2. -: Motions: Renewal. The court should not entertain-a second motion where one for the same purpose has been overruled, unless leave to file is specially given; and whether such leave shall be given rests in the discretion of the trial court. Livingston v. Coe, 4 Neb., 379, followed.</p> <p>3. -: -: Filing. A motion to discharge an attachment, to be available, must be filed before judgment in the action, but if so filed the court may rule thereon after judgment. Moline,. Milburn <Sb Stoddard Co. v. Curtis, 38 Neb., 520, followed.</p> <p>4. -: Error Proceedings: Implied Affirmance. In an. action begun in the county court, that court made an order sustaining an attachment and rendered judgment in the action for the plaintiff. The defendant prosecuted error to the district court, assigning error in both orders. The district court reversed the j udgment but made no express order in relation to-the order sustaining the attachment. The defendant did not. except to this ruling and did not thereafter in any way call upon the district court to rule upon the order sustaining the attachment. Held, That this in effect amounted to an affirmance of the order of the county court sustaining the attachment, and that the district court was justified in refusing to entertain an independent motion to discharge for the same reasons as alleged in the motion in the county court.</p>

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

Original application for mandamus. cited, to the contention inter alia that a warrant prima facie valid should be paid: Ray v. Wilson, 10 So. Rep. [Fla.], 613. The warrant is invalid because no annual appropriation bill was passed by the council within the first quarter of the fiscal year.

<p>1. Summons: Service by Publication: Jurisdiction. Jurisdiction of the defendant cannot be acquired by service by publication, in an action for the recovery of money, under the third clause of section 77 of the Code, unless the defendant is a nonresident of the state, or a foreign corporation having property in this state, or debts owing to him, which are sought to be taken by some provisional remedy, or to be appropriated by judicial proceedings.</p> <p>2. -: -: -. In such an action where the defendant has within the state no property, nor debts owing to him, jurisdiction will not be acquired over his person by the publication of the summons.</p> <p>3. -: -: -. For the purpose of ascertaining its jurisdiction in such a case, it is competent for the court to hear testimony, when the question of jurisdiction is properly raised by the defendant.</p> <p>4. Appearance: Waiver of Defects in Notice. When a defendant appears and files a motion to dismiss the suit because of defects in the service by publication, he thereby waives all irregularities and defects in such service.</p>

<p>Error from the district court of Buffalo county. Tried below before Holcomb, J.</p> <p>cited : Taylor 'Tilden, 3 Neb., 339; Kellogg v. Huntington, 4 Neb., 96; Nickerson v. Needles, 32 Neb., 240; Hubbard v. Quisenberry, 28 Mo. App., 20.</p> <p>cited: Hilton v.. Doss, 9 Neb., 406; Constitution, sec. 24, art. 1; Code, secs. 908, 950, 988, 1085; Osborne v, Canfield, 33 Neb., 330.</p>

Error from the district court of Johnson county. Tried below before Bush, J. A wife may contract with her husband and become his creditor. (Lipscomb v. Lyon, 19 Neb., 515; Hill v. Louse, 32 Neb., 637.) It is not a fraud upon other creditors' for a husband to make his wife a preferred creditor. (Lipscomb v. Lyon, 19 Neb., 515.) cited: Stevens v.. Carson, 30 Neb., 550; Thompson v. Leonig, 13 Neb., 386; Steele v. Coon, 27 Neb., 598; Swartz v. McClelland, 31 Neb., 648.

Tried below before Wheeler, J. The facts are stated in the opinion. The trial court’s eleventh instruction was wrong in stating that the law presumes a person intends the natural consequences of his act. (State v. Neal, 37 Me., 470; State v. Stewart, 29 Mo., 420; Curry v. State, 4 Neb., 54.5; People-v. Sweeney, 55 Mich., 586.) A hoe handle used to strike but once, is not a deadly weapon, and the court should not have assumed it was.. The question was for the jury.

<p>Judgments: Lien on Vendor’s Interest in Land: Executions. A judgment recovered in the district court against the vendor of land which is situate in the county in and for which-the court is held, who has not, at the time of the recovery of the judgment, executed and delivered a deed ior the land or received all the purchase money, is a lien upon the interest of the vendor in the land, viz , the unpaid purchase money; and a levy of an execution issued upon such judgment on the land, and a. sale thereunder will pass to the purchaser the interest of the vendor.</p>

Error from the district court of Gage county. Tried below before Broady, J. The opinion contains a statement of the case. There is no warranty of soundness in the instrument sued on. When a party sells a horse and warrants as to particular defects, his warranty is confined to those defects.

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

<p>Error from tbe district court of Lancaster county. Tried below before Hall, J.</p> <p>cited: Berggren v. Berggren, 24 Neb., 764; King v. Jackson, 25 Neb., 466.</p>

<p>Appearance: Waiver or Jurisdiction. The question -whether , or not the district court has jurisdiction of the subject of the action and of his person cannot be raised by one -who, in respect to such subject, has voluntarily appeared and presented his claim, by proper pleading for adjudication by such court.</p>

<p>1. Review: Conflicting Evidence. When the only question on appeal presented is the sufficiency of disputed evidence to sustain the findings of fact made by the district court, the judgment appealed from will be affirmed.</p> <p>2. Mechanics’ Liens: Sworn Statement: Time to File. A subcontractor is entitled to no lien for material unless affirmatively he establishes by proof that within sixty days from the date whereon the last item of material was furnished by him he filed in the proper office a sworn statement, in compliance with the requirements of section 2, article 1, chapter 54, Compiled Statutes.</p>

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

<p>Ejectment: Review. The questions of law suggested by plaintiff in error in this case not examined, as the evidence fails to show that appellant is in anywise interested in any part of the property in controversy.</p>

Tried below before Marshall, J. The facts are stated by the commissioner. The admission of evidence for only one purpose was erroneous, because not followed by a proper instruction limiting it to that purpose. (Scott v. Moliinnish, 15 Ala., 662; Letton v. Young, 2 Met. [Ky.], 558.) The presumption of innocence remains with the defendant in a case where self-defense is interposed, and the burden of proof never shifts from the state to the defendant.

<p>Error from the district court of Dawes county.</p>

<p>Error from the district court of Madison county. Tried below before Norris, J.</p> <p>cited: Maxwell, Justice Practice, 126; Hiteheoch v. MeKinster, 21 Neb., 148; In re Garst, 10 Neb., 78; Osborn v. Shotwelly 33 Neb., 348; Johnson v. Jones, 2 Neb., 137; Kepley v. Irwin, 14 Neb., 300; Rector Holy Trinity Church v* United States, 12 Sup. Ct. Rep., 512.</p>

<p>•Rehearing of case reported in 39 Neb., 8.</p>

<p>1. Negotiable Instruments: Fraud: Burden of Proof. In an action by an indorsee of a promissory note against the maker, where the defendant pleads frand in the inception of the note, the burden is upon the plaintiff to show that he is a bona fide holder for value. Following Violet v. Bose, 39 Neb., 660.</p> <p>2. -: -: -. The appellant’s failure to make the proof required, under the circumstances above indicated, necessitates an affirmance of the decree entered by the district' court.</p>

Error from the district court of Franklin county. Tried below before Gaslin, J. See opinion for statement of the case. Statements of the agent at the time of effecting the insurance are not admissible, after the contract has been reduced to writing and delivered by the company and accepted by the assured, to change or vary the terms of the policy. Parol evidence is never admissible to vary the terms of a written instrument. (Wilkins v. State Ins.

Original application for mandamus to compel the-county clerk of Holt county to accept and approve the appeal bond of John Skirving who sought to appeal from a judgment of the board of supervisors removing him from the office of clerk of the district court for official misdemeanors.

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

<p>1. Replevin: Evidence. Evidence in the case examined, and held to sustain the judgment of the trial court.</p> <p>2. -: Demand. Where a defendant in replevin did not come into possession of the property rightfully, or when he contests the case on the trial on an affirmative qlaim of right to the possession of the property, it is not necessary for the plaintiff to-mate proof of demand and refusal, in order to recover costs.</p>

<p>1. Administration of Estates: Acceptance of Benefits Under Will. One who accepts benefits under a will must, as a rule, conform to all of its provisions and renounce every right inconsistent therewith.</p> <p>2. -: -: Allowance to Widow. A testator by will left-to bis widow certain property accompanied by the following condition: “ The bequest to my wife, Mrs. M. F. C., is in lieu of all appropriations that the law would give her, except one year’s support, which I desire she shall have.” The widow, on proof of the will, filed in the county court an instrument in writing by which she in express terms consented to all of the provisions thereof. She was subsequently allowed support for one year. Held, That having elected to accept the provisions of the will she is not entitled to a further allowance for her support pending the settlement of the estate.</p> <p>3. -: -: -: Construction os' Statute. The provision of the first subdivision of section 176, chapter 23, Compiled Statutes, for an allowance to the widow of certain property of her deceased husband “as well when she receives the provision made for her in the will of her husband as when he dies intestate,” refers to the property mentioned in that subdivision only.</p> <p>4. -: -: -. Qodman Converse, 38 Neb., 657, overruled.</p>

<p>Attorney and Client: Dismissal: Review. An attorney commenced an action for his client in the district court, and on the day set for the trial of the case his client did not appear, and . the court, on motion of defendants, dismissed the action. After-wards the attorney filed a motion, the object of which was to secure a reinstatement of the cause and to be allowed to intervene and prosecute the action for the purpose of obtaining his fees on the ground that the defendants had effected a secret settlement with the plaintiff and paid her a considerable sum of money to dismiss the case or remain away at the time of trial, and thus procure the dismissal. The motion was supported by affidavits, to which the defendants were allowed to, and did, file counter-affidavits. The court, on hearing, overruled the motion. Held, Upon examination of the showings made in favor of and against the allowance of the motion, that the ruling of the district court was not erroneous.</p>

<p>Error from the district court of Buffalo county. Tried below before Church, J.</p> <p>cited: White v. Woodruff, 25 Neb., 797; Smith v. Boyer, 29 Neb., 76; Newlean v. Olson, 22 Neb., 717; Iiodghins v. Hook, 23 Cal., 581; Warner v. Carlton, 22 111., 415; Pyle v. Warren, 2 Neb., 241; Marsh v. Burley, 13 Neb., 262; Brunswick v. McClay, 7 Neb., 138; Severance v. Leavitt, 16 Neb., 439; Lortonv. Fowler, 18 Neb., 224; Densmore v. Tomer, 11 Neb., 118; City of Lincoln v. Holmes, 20 Neb., ■39; Campbell v. Holland, 22 Neb., 588.</p> <p>cited: Ticknor v. McLelland, 34 111., 471; Bull v. Griswold, 19 111., 631; Thompson v. Wilhite, 81 111., 356; Johnson v. Walker, 23 Neb., 736; Bartling v. Behrends, 20 Neb., 211; Tootle v. Dunn, 6 Neb., 93; Western Ins. Co. v. Putnam, 20 Neb., 331; Brown v. Herr, 21 Neb., 113; Clemens v. Brillhart, 17 Neb., 335; Bradford v. Bradford, 60 la., 201; Lavassar ■v. Washburne, 50 Wis., 200 ; Jack v. Broxon, 60 la., 271; Hollins v. Jackson, 19 N. W. Rep. [Mich.], 947.</p>

Error from the district court of Holt county. Tried below before Kinkaid, J. The opinion contains a statement of the case. Where the policy requires written notice of the loss to be furnished, and also requires the furnishing of proofs of loss, both are conditions precedent to the plaintiff’s right to recover. (Cornell v. Milwaukee Mutual Ins. Co., 18 Wis., 407; American Central Ins. Co. v. Hathaway, 23 Pac. Rep. [Kan.], 428; Farmers Ins.

Error from the district court of York county. Tried below before Miller, J. The facts are stated by the commissioner. The sight draft was negotiable. (Compiled Statutes, sec-1, ch. 41; Green v. Raymond, 9 Neb., 295.) Plaintiff in error had a lawful right to assign the sight draft to a third person and give the latter the benefit of the collateral security.

<p>Appeal from the district court of Cass county. Heard, below before Chapman, J.</p> <p>See opinion for authorities upon the propositions discussed.</p>

<p>Municipal Corporations: Occupation Tax: Telegraph Companies: Interstate Commerce. Regardless of any doubt respecting the soundness of the conclusion heretofore announced in this cause, the court is bound to adhere thereto by reason of of the decision subsequently rendered in Postal Telegraph Gable Co. v. City of Charleston, 14 Sup. Ct. Rep., 1094.</p>

<p>1. Criminal Law: Assault With Intent to Murder: Proof. An essential element of the crime of assault with intent to commit-murder is the actual intent to take life, and when an offense is constituted by statute of an act combined with a particular and specific intent, proof of the intent is just as indispensable as proof of the act.</p> <p>2. —-: Information : Instructions. Where an information contained two counts, one of assault with intent to commit murder and the second of an assault with intent to do great bodily injury, and there was no evidence to support the charge set forth in the first count, it was error which was calculated to confuse and mislead the jurors, and prejudicial to the parties on trial under the complaint, to submit to the jury the question of the guilt or innocence of such parties of the crime charged in the first count, although they were not convicted of such crime.</p>

<p>1. Judgments: Collateral Attack: Injunction. The fact that a judgment has been rendered without jurisdiction by an inferior court does not in an independent proceeding in the district court justify a perpetual injunction against the prosecution of any action or remedy in respect to the cause of action Upon, which the judgment without j urisdiction was rendered.</p> <p>2. -:--: -. The evidence examined, and found not-to justify the decree entered in the district court.</p>

<p>Bridges: Unsafe Condition: Damages: Liability of County. For an injury caused by an unsafe condition of a county bridge' a county is liable in damages notwithstanding the fact that no notice of such condition had, previous to the occurrence of the accident, been given to any officer of the county concerned.</p>

Heard below before Church, J. One who has a direct legal interest in the result of a cause in which the adverse party is administrator of a deceased person is not a competent witness therein.

<p>1. Pleading: Judgments. Where a defendant files no pleading except a demurrer to the petition on the ground that it does not state a cause of action, other defendants answering and presenting issues, a decree reciting that the case was heard on the pleadings and evidence, then finding the facts as alleged in the petition and granting to plaintiff the relief prayed, will he treated as an order overruling the demurrer and entering judgment thereon.</p> <p>2. Tender Before Maturity of Debt. When a debt is payable on a day certain, the creditor is not required to accept payment before that day, and he loses no rights nor does the debtor gain any because of atender made before the debt matured.</p> <p>3. Mortgages. A mortgaged land to B; he subsequently borrowed money of C and mortgaged the same land to secure the debt. It was the intention of A and C to discharge B’s mortgage out of C’s loan, but B’s mortgage had not matured and B refused to accept payment. Whereupon, by agreement between A and C’s agent, the latter withheld from the loan the amount of B’s debt to secure C against B’s mortgage. Default was made on both mortgages. Held, That the withholding of the money on such terms did not excuse A from his obligation to piy C his debt as it matured; that, at the suit of the mortgagees, B was entitled to foreclose for the amount of his debt, C for the amount actually paid to A, — that is, the face of his note less the amount withheld as security against B, — and that the district court did not abuse its discretion in awarding costs against the mortgagor.</p>

<p>Appeal from the district court of Richardson county. Heard below before Bush, J.</p> <p>cited: Boyd v. Boyd, 1 Harp. Eq. [S. Car.], 144; Atkins v. Atkins, 13 Neb., 272; Smith v. Smith, 19 Neb., 706; MoConahey v. MoConahey, 21 Neb., 463; Small v. Small, 28 Neb., 843.</p> <p>cited: Vert v. Vert, 54 N. W. Rep. [S. Dak.], 655.</p>

<p>1. School Districts: Appeal Bonds. When a school district. appeals to the district court 1'rom a judgment rendered by a justice of the peace, it must enter intoan appeal bond as required by section 1007 of the Code of Civil Procedure.</p> <p>2. -: -: -. The giving of such bond, within the time prescribed by statute, is necessary to confer j urisdiction of the appeal upon the appellate court.</p> <p>3. Constitutional Law: Eight of Appeal. The constitutional provision which declares that “ the right to be heard in all civil cases in the court of last resort, by appeal, error, or otherwise, shall not be denied,” does not prohibit the legislature from prescribing reasonable rules and regulations for the review of a cause by appeal, such as requiring a bond to be given.</p>

Error from the district court of Lancaster county. Tried below before Hall, J. See opinion for statement of the case. The court erred in its presentation of the issues to the jury, and in instructing the jury that the burden was upon the plaintiff only to prove the value of the building insured. (School District v. Holmes, 16 Neb., 486; Chicago, St. P., M. & O. P. Co. v. Lindstrom, 16 Neb., 254; Dins-more v. Stimbert, 12 Neb., 433; Phenix. Ins.

. Heard below before Field, J. There is a statement of the case in the opinion. Each partner, virtute offieii, possesses an equal and general power and authority in behalf of the firm to transfer, pledge, exchange, or apply, or otherwise dispose of, the partnership property or effects for any and all purposes within the scope and objects of the partnership, and in the scope of its trade and business.

Error from the district court of Douglas county. Tried below before Keysor, J.' The case is stated by the commissioner. It was the duty of the company to provide reasonable means for the passage of surface water. It could not with impunity treat all surface water coming naturally upon the ■right of way as a “common enemy,” and erect artificial barriers against it without regard to the rights of others.

<p>Error from the district court of Valley county. Tried below before Harrison, J.</p> <p>cited: Schuyler Nat. Rank v. Rollong, 24 Neb., 822; Brown v. Second Nat. Bank of Erie, 72 Pa. St., 209; Tyler, Usury, 456; New England Mortgage Security Co. v. Sandford, 16 Neb., ■890; Manning v. Tyler, 21 N. Y., 567; Anglo-American Band, Mortgage & Agency Co. v. Brohman, 33 Neb., 409.</p> <p>cited: Hall v. First Nat. Bank of Fairfield, 30 Neb., 99; 1 Vycoff v. Longhead, 2 Dali. [U. S.], 92; Turner v. Calvert, 12 S. & R. [Pa.], 46; Mus-grove v. Gibbs, 1 Dali. [U. S.], 216; Kirkpatrick v. Houston, 4 W. & S. [Pa.], 115; Lamb v. Lindsey, 4 W. & S. [Pa.], 449; Thomas v. Shoemaker, 6 W. & S. [Pa.], 179; Oyster v. fo-ngnecker, 4 Harris [Pa.], 269; Craig v. Pleiss, 2 Casey [Pa.], 271; Bliss, Code Pleading, sec. 118,</p>

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

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

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

<p>Appeal from the district court of Washington county. Heard below before Dayis, J.</p> <p>See opinion for statement of the case.</p> <p>Plaintiff is entitled to a lien. (Great Western Mfg. Co. v. Hunter, 15 Neb., 37; Ballou v. Black, 17 Neb., 397; Gatyv. Casey, 15 111., 192; Williams v. Chapman, 17 111., 425; Phillips, Mechanics’ Liens, secs. 16, 17, 215, 344, 345; Manley v. Downing, 15 Neb., 637; Murray v. Bapley, 30 Ark., 573; Williams v. Webb, 2 Dis. [O.J, 430; Hugg v. Hintrager, 45 N. W. Rep. [Ia.], 1035; Reed v. Bagley, 24 Neb., 332; Missouri Valley Lumber Co. v. Weber, 43 Mo. App., 179; Pierce v. Osborn, 19 Pac. Rep. [Kan.], 656; Lamb v. Hanneman, 40 la., 41; Miller v. Faulk, 47 Mo., 264; Rogers v. Omaha Hotel Co., 4 Neb., 54; White Lake Lumber Co. v. Russell, 22 Neb., 129; Hays v. Mercier, 22 Neb., 660; Bohn Mfg. Co. v. ICountze, 30 Neb., 719; Collins Granite Go. v. Devereux, 72 Me., 422.)</p> <p>Munroe is entitled to a lien. (Gray v. Elbling, 35 Neb., 278; Hazard Powder Co. v. Loomis, 2 Dis. [O.], 551; Albright v. Smith, 51 N. W. Rep. [S. Dak.], 592; Millsap ■v. Ball, 30 Neb., 734; Cook v. Murphy, 24 Atl. Rep. [Pa.], ■630; State Mfg. Co. v. Norwegian Seminary, 47 N. W. Rep. [Minn.], 796; St. Paul & Minneapolis Pressed Brick Co. v. Stout, 47 N. W. Rep. [Minn.], 974; Lamb v. Han■neman, 40 la., 41; Skyrme v. Occidental Mill & Mining Co., 8 Nev., 235; Capron v. Strout, 11 Nev., 304; Page v. Bettes, 17 Mo. App., 366; Livermore v. Wright, 33 Mo., 31.)</p>

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

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

Original application for mandamus to compel the county clerk of Burt county to draw in favor of relator a warrant on the county treasurer in payment of a balance claimed for the construction of a ditch, and to require the county commissioners to meet and levy a special tax against the property benefited by the improvement.

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

<p>Usury: Action to Recover Penalty: Venue: Waiver of Objection to Suit in Wrong County. The facts and questions of law involved in this case are substantially the same as in Exeter Nat. Bank v. Orchard, 43 Neb., 579, and on the authority of that case the judgment of the district court in this is affirmed.</p>

<p>Error from the district court of Phelps county. Tried' below before Gaslin, J.</p> <p>cited: 2 Rapalje, Law-Dictionary, p. 854; Aultman v. Siovt, 15 Neb., 586; Sycamore Marsh Harvester Mfg. Co. v. Sturm, 13 Neb., 210; Herring v. Skaggs, 62 Ala., 180; Sanborn v. Herring, & Am. Law Reg., n. s. [N. Y.], 457; Walker v. Milner, 4 E. & F. [Eng.], 745; Passinger v. Thorburn, 34 N. Y.r 634; White v. Miller, 71 N. Y., 118; Milburn v. Belloni, 39 N. Y. 53; Wolcott v. Blount, 36 N. J. Law, 262; Flick v. Wetherbee, 20 Wis., 392; Barr adarle v. Brunton, 8 Taunt.. [Eng.], 535; Maynard v. Maynard, 49 Yt., 297; Brown v. Edgington, 2 M. & G. [Eng.], 279; Haysler v. Owen,. 61 Mo., 270; Smith v. T-mmo, 1 McCord [S. Car.],-443*;; Thurston v. Ludwig, 6 O. St., 1; Crimson v. Russell, 11 Neb., 469.</p>

Error from the district court of Richardson county-Tried below before Bush, J. The facts are stated in the opinion. The demurrer to the petition should have been sustained-(Cutler v. Roberts, 7 Neb., 4; Sharp v. United States, 4 Watts [Pa.], 21; Fletcher v. Austin, 34 Am. Dec. [Yt.],. 698; 1 Wait, Actions & Defenses, 677.) The obligors are in the attitude of sureties with all rights-of the latter. (Cady v. Smith, 12 Neb., 630; Patterson v„ Wyomissing Mfg. Co., 40 Pa.

<p>Error ítodi the district court of Douglas county. Tried below before Hopewell, J.</p> <p>Motion to dismiss proceeding in error.</p>

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

.Heard below before Hall, J. See opinion for statement of the case. A judgment debtor can be held as garnishee. (Skipper «.

<p>1. Review: Questions Not Presented Below. It is a rule of universal application in appellate proceedings that the examination of the reviewing court, whether on appeal or writ of error, will be confined to questions determined by the trial court.</p> <p>2. -: -. Where by a bill in equity relief is sought on two-separate and distinct grounds, and it is affirmatively shown by the record that the decree for the plaintiff rests upon one ground; only, and that the court expressly reserved its decision on the-other, the examination of this court on appeal will he confined to the issue determined by the district court.</p> <p>3. Contracts: Monopolies. The doctrine of the common law that. monopolies are odious and therefore illegal has reference to sucb franchises and agreements as tend to restrict trade, and has no-application to mere police regulations in the interest of the public health or morality.</p> <p>4. Constitutional Law: Police Regulations: Municipal. Corporations. The choice of sanitary measures is a legislative function, which has been entrusted to the various municipal bodies and which the courts will not assume to control.</p>

Error from the district court of Douglas county. Tried below before Davis, J. A statement of the case appears in the opinion. The county board, in determining that the proposition submitted at the election had carried, acted judicially.

<p>Bonds and Contracts of Builders: Breach: Liability or Sureties. It was stipulated in a contract for the erection of a county court house that the contractor should receive eighty-five-per cent of the money earned thereunder, payable on monthly estimates; also “that in each case of payment a certificate shall be obtained by the contractor from the clerk of the county that he has carefully examined the records and finds no liens or claims against said work or on account of said contractor. Neither shall there be any lawful claims against the contractor in any manner, from any source whatever, for work or material furnished on said work.” Held, A promise by the contractor to satisfy the lawful claims of laborers and material-men, and that the sureties on his bond for the faithful performance of the contract are liable for a breach of such condition. (Lyman v. City of Lincoln, 38 Neb., 794.)</p>

Original application for mandamus to compel the secretary of state to certify to the county clerks the names of relators as nominees of the democratic party for the several state offices.

<p>1. Boundaries: Monuments. Where the original mounds or monuments established during a government survey can be identified and ascertained, they will control course and distance.</p> <p>2. -: -: Field Notes: Eyidenoe. Field notes and plats of the original government survey are competent evidence in ascertaining where monuments are located in case a government corner is destroyed, or the point where it was originally placed cannot be found, or the location of the original corner is in dispute; but when it is shown by uncontradicted evidence that a section corner was located by the governinent surveyors at a certain point, such location must control, even though it is at a place different from that given in the field notes and plat. Woods v. West, 40 Neb., 307, followed.</p> <p>3. -: Admission of Evidence. The rulings of the trial court in admitting and excluding evidence examined, and held not erroneous or not prejudicial to the rights of the complaining party.</p> <p>4. New Trial: Newly Discovered Evidence. The showing filed with motion for new trial in support of the grounds of newly discovered evidence and accident and surprise held insufficient.</p> <p>6. -: -■. Where it is sought to set aside a verdict for alleged misconduct of jurors, it must appear ’that the acts upon which the complaint is founded were not known to the party who seeks to take advantage of them, or his counsel, during the progress of the trial in time to have brought them to the attention of the trial court.</p> <p>■6. Trial: Impeaching Verdict: Statements of Jurors: Affidavits. Affidavits made by parties which purport to contain statements made by jurors during alleged conversations with them after the close of the trial of a case and their discharge therefrom, in reference to acts and discussions which occurred in the jury room while the jurors were deliberating upon their verdict, and in regard to which the affidavits of the jurors would not be received, are incompetent and insufficient to aid in impeaching the verdict.</p>

<p>1. Action on Account: Evidence: Review. The evidence in this case examined, and held sufficient to sustain the findings of the trial court and judgment thereon.</p> <p>% Review: Bill or Exceptions. This court will not review testimony in the form of affidavits used in the trial court on the hearing of a motion for a new trial unless such affidavits have been included in and presented by a bill of exceptions. ,</p>

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

See opinion for statement of the case. The burden of showing the proper execution of the bonds is upon the plaintiff. (Donovan v. Fowler, 17 Neb., 247.) The officers of the company had no power whatever to-mortgage its property to secure its indebtedness in the, way it was done, neither at the time of making the debt nor subsequently thereto, nor to deposit the bonds as collateral security. (Tippetts v. Walker, 4 Mass., 597*; Emerson v. Providence Plat Mfg.

<p>Review: Conflicting Evidence : Pleading. A decree of the district court will not be disturbed'on appeal to this court when, the sole question presented is as to findings of fact made by such district court upon consideration of merely conflicting evidence.</p>

<p>Res Adjudicata. A judgment rendered by a court which had j urisdictiou of the parties and of the subject-matter, as between such parties, conclusively settled all questions litigated, subject only to the contingency of a reversal or modification in the same proceeding.</p>

<p>Review: Conflicting Evidence. On appeal where there is such a contradiction and confusion in the evidence that it is uncertain how the issues should have been determined, the judgment of the district court will not be disturbed.</p>

Error from the district court of Lancaster county. Tried below before Hall, J. The facts are stated by the commissioner. The law under which parties contract is part of the contract, and their obligations are determined with reference to it; and they are presumed to have intended the contract shall be construed, and obligations determined by it, as though written in it.

Error from the district court of Lancaster county. Tried below before Strode, J. This was a suit by Anna Riggs against Oliver P. Dinges. The plaintiff in her petition set up three causes of action: First, malicious prosecution; second, damage to plaintiff’s business by arresting occupants of her place of business; third, slander. Plaintiff recovered a verdict and judgment on the second cause of action for one hundred dollars.

Heard below before Holcomb, J. The facts are stated by the commissioner. The payment to Tallant discharged the lien of the mortgage. (Mason v. Beach, 55 Wis., 607; Mallory v. Mariner, 15 Wis., 189; Stewart v. McMahan, 94 Ind., 389; Mahie v. Hatinger, 48 Mich., 341; Coutant v. Servoss, 3 Barb. [N. Y.], 128; Evertson v. Ogden, 8 Paige Ch. [N. Y.], 275; Swartz v. Leist, 13 O. St., 419.) Ricketts & Wilson and Dryden & Main, contra, cited:.

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

Error from the district court of Hamilton county. Tried below before Smith, J. A statement of the case appears in the opinion. cited: 2 Dillon, Municipal Corporations, sec. 1006;. City of Aurora v. Pulfer, 56 111., 270; Raymond v. City■ of Lowell, 6 Cush. [Mass.], 524. Two things must occur to support the action: (1) An obstruction or defect in the crossing by fault of the city;. (2) no want of ordinary care to avoid it on the part of plaintiff below.

<p>1. Review: Rulings on Evidence: Assignments oe Error. To obtain a review of the rulings of the trial court on the admission and rejection of evidence, the petition in error must specifically designate the rulings complained of.</p> <p>2. Instructions: Exceptions: Review. This court will not review the action of the trial court in giving and refusing instructions, unless the record discloses an exception to the ruling complained of.</p> <p>3. -: -: -. The failure of the trial court to mark instructions “given” or “refused” cannot he complained of here .unless an exception was specially taken in the trial court on the ground that the instructions were not so marked.</p> <p>4. Depositions: Ruling on Motion to Suppress. In September a deposition of a witness residing in a distant state was taken on behalf of the plaintiff on due notice, the defendant serving cross-interrogatories as provided by the Code. The officer who took the deposition, instead of transmitting it to the clerk, transmitted it to the plaintiff’s attorney and the deposition was never filed. On December 3 plaintiff’ served another notice of the taking of the deposition of the same witness on December 20. No cross-interrogatories were served, and the witness was not cross-examined. Held, That the court properly overruled a motion to suppress the deposition based on the failure of the notary to propound the cross-interrogatories served on the former occasion.</p> <p>5. Practice: Personal Injuries: Examination by Physicians. Whether it is proper in an action for personal injuries for the court to appoint, on the application of the defendant, a commission of physicians to make a physical examination of the plaintiff, quxre. If such action is proper, the application must be made before the trial commences.</p> <p>6. Review: Assignments oe Error: Motion eor New Trial. An assignment in the petition in error that the court erred in overruling the motion for a new trial is too indefinite for consideration where the motion for a new trial assigns several different grounds therefor.</p> <p>7. Husband and Wife: Action eor Personal Injuries. The disability of a married woman to maintain an action in her own name was removed by the married woman’s act, and she may maintain an action for personal injuries, recovering therein the damages by her sustained as distinguished from any sustained by the husband.</p> <p>8. --: -: Estoppel. Such right of action being her own she is not estopped by her husband’s acts in regard thereto.</p> <p>9. Municipal Corporations: Sidewalks: Repair. Where a city permits a sidewalk to be maintained beyond the sidewalk line as fixed by ordinance, and exercises control thereover, its duty is to maintain the whole walk in repair.</p> <p>10. -: Presentation of Claim for Personal Injuries. Section 80, chapter 14, Compiled Statutes, does not require a claim for personal injuries to be presented to the city council of a city of the second class as a condition precedent to maintaining an action.</p>

<p>1. Beal Estate Brokers: Commissions. Evidence examined, and held sufficient to sustain the verdict</p> <p>2. -: -. In an action by a real estate brokerto recover on a special contract for procuring a purchaser, the contract having been made by one alleged to be the agent of the owner and the authority of the agent being- one of the issues, the court properly refused an instruction stating that the plaintiff was entitled to recover if he was employed by the owner or some one acting for her without stating that Such person must be authorized. to so act.</p> <p>3. -: -: Evidence. Certain rulings on the evidence examined, and held not erroneous.</p>

Application by plaintiff in error to the supreme court for an allowance for fees of his attorney for service rendered .in said court in the case reported in 42 Neb., 684.

<p>Error to the district court for Burt county. Tried below before Ambrose, «T.</p>

<p>1. Railroad Companies: Duty to Fence Tracks: Damage. by Killing Stock. Every railroad corporation in this state is required to fence its tracks, except at the crossings of public roads and highways and within the limits of towns, cities, and villages.</p> <p>2. -: A point one mile distant from the nearest depot grounds not within the limits of any city, town or village, remote from any railroad or highway crossing, and not necessary for use in making up trains, although occasionally used for such purpose, is not within the exception mentioned.</p> <p>3. -: -. Chicago, B. & Q. B. Co. v. Hogan, 27 Neb., 801, and 30 Neb., 686, distinguished.</p>

Error from the district court of Buffalo county. Tried below before Hamer, J. There is a statement of the case in the opinion. The failure to file an affidavit for publication deprived the justice of the peace of jurisdiction and his judgment was void. (Maxwell, Justice Practice [ed. 1889], 330; Code, secs. 59, 60, 78, 932; Blair o. West Point Mfg.

<p>1.'Review: Judgment Non Obstante Veredicto. Whereamotion was made for a judgment non obstante veredicto, but the record does not disclose that such motion was submitted to the judge of the trial court and his ruling obtained thereon and am exception taken thereto if adverse, there is nothing presented by the record for the consideration of a reviewing court..</p> <p>2. Landlord and Tenant: Fraud: Damages: .Recoupment: Cancellation oe Lease. A lessee who was induced to make a lease by the fraudulent statements of the lessor may, in an action by the lessor for rent due, recoup the amount of any damage he may have suffered by reason of such fraud and misrepresentation; or, if he has fully paid the rent, recover the damages-in an action instituted for such purpose; or, on discovering the-falsity of the representations made by the lessor, may rescind the contract of lease; that is, he may have his election of reme- - dies or of courses to pursue.</p> <p>3. Damages: Lease: False Representations. In the case at bar the defendants were induced by the statements of the lessor in regard to the premises to make a lease for, and to occupy them for use in, a particular business, and there being sufficient evidence to sustain a finding of the jury that such representations were false and known to be so when made by the party making them, and without the knowledge of the lessees, and relied upon-by them, and one of the results being necessarily the removal of the parties and the business from the premises to another location, held, there might be recovered as damages the actual, unavoidable expenses of such removal.</p>

Error from the district court of Lancaster county. Tried below before Hall, J. Execution sale of real estate is not justified under a dormant money judgment. (Hervey v. Edens, 6 S. W. Rep. [Tex.], 806; Barron v. Thompson, 54 Tex., 235; Norton v. Beaver, 5 O., 178; Miner v. Wallace, 10 O., 403; Bassett v. Proetzel, 53 Tex., 569; Deutsch v. Allen, 57 Tex., 89; Smith v. Dickson, 9 Ga., 400; Moseley v. Sanders, 76 Ga., 293; Hoskins v. Helm, 14 Am.

<p>Judgment: Injunction to Restrain Collection: Grounds. A court of equity will not enjoin the enforcement of a judgment at law unless it appears that plaintiff had at the time of the rendition of such judgment a valid defense, and, if the relief prayed could have been afforded upon due application under section 602, Code Civil Procedure, relating to new trials, it must, in addition, be satisfactorily shown that by reason of fraud or circumstances beyond the control of plaintiff he has been prevented from availing himself of the provisions of the aforesaid section.</p>

<p>1. Creditor’s Bill: Husband and Wife: Dismissal. In an action to subject to the paymentof her husband’s debts real property held by the wife, a finding sustained by sufficient evidence that the said property was wholly acquired by means legally and equitably belonging to the wife, justified the district court in dismissing the action in so far as said property was concerned.</p> <p>2. -: -: -. In an action for the subjection of real property held by the wife to the payment of her husband’s debts, findings sustained by the evidence, that the purchase price of said property was in part paid with the wife’s own means, that there was failure of. proof that the conveyance to the wife was for the purpose of defrauding creditors of her husband, and that said husband was at the time of the trial the owner of property in the county wherein the said trial was progressing, fully justified the dismissal of plaintiff’s action.</p>

<p>.Error from the district court .of Lancaster county.. Tried below before Hall, J.</p> <p>cited: Butler Kennard, 23 Neb., 357; Anderson v. Cox, 16 Neb., 10 ^ Lockwood v. Halsey, 41 Kan., 166.</p> <p>cited: Sherwin v. O' Connor, 24 Neb., 603.</p>

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

<p>Rehearing of ease reported in 37 Neb., 500.</p>

Heard below before Field, J. The facts are stated by the commissioner. The affidavit for service by publication is jurisdictional, and must be authenticated by the certificate of a competent officer. (Atkins v. Atkins, 9 Neb., 191; Frasier v. Miles, 10' Neb., 113; Blair v. West Point Mfg. Co., 7 Neb., 147; Consolidated Statutes, secs. 4887, 4891, 4904.) Courts require a strict compliance governing notice by publication.

<p>Conspiracy: Evidence: Review. The case re-examined, and the former opinion in 40 Neb., 623, adhered to.</p>

Error from tbe district court of Lancaster county. Tried below before Hall, J. cited: Rogers «. Mnphie Hardware Co., 24 Neb., 653; Mwell v. Chambeiimf. 31 N. Y., 611; Aultmanv. Reams, 9 Neb., 487. A full knowledge of all material facts is aii indispensable-condition of ratification; otherwise the receipt and retention of the benefits of an unauthorized act is no ratification of it.

<p>Submission of controversy to supreme court. There is a statement in the opinion.</p>

Heard below before Tibbets, J. The facts are stated by the commissioner. There is no resulting trust, because to prove a resulting trust of the sort pleaded in the answer it must be shown by proof, absolutely clear and satisfactory, that the identical money can be traced into the land while it is the property of the wife.

<p>1. Sheriffs and Constables: Executions: Unlawful Seizure of Property : Action on Bond. Where a constable with a process against the property of one person seizes by virtue thereof the property of another, he is guilty of official misconduct, for which he and his sureties are liable in an action on his official bond. Turner v. Killian, 12 Neb., 580, followed and reaffirmed.</p> <p>H. Res Adjudieata: Wrongful Levy Under Execution: Judgment Against Officer: Action on Bond. Where an officer, holding an execution issued on a judgment against A, by virtue of such execution seizes the property of B, and the latter recovers a judgment against such officer for the value of the property seized, then, in a suit by B against such officer and the sureties on his officiabbond to recover the amount of the judgment, such judgment is conclusive evidence against the officer and his sureties as to B’s ownership of the property at the time it was seized by the officer, the amount of the damages and costs sustained by B by reason thereof in the absence of a showing that the court, had no jurisdiction to pronounce the judgment, or that it was procured by fraud or collusion. Pasewalk v. Toll-man, 29 Neb., 519, reaffirmed.</p> <p>3. Action on Sheriff’s Bond: Pleading. In such a suit against an officer and the sureties on his bond the answer of the sureties alleged “that said judgment was procured by fraud, misrepresentation, and contrary to law.” Eeld, A mere conclusion.</p>

Original application for mandamus to compel the respondents to restore a portion of an abandoned street railway line and to maintain and operate the same.

Heard below before Holcomb, J. The opinion .contains a statement of the cases. Equity protects a parol gift of land, if accompanied by possession, where the donee, induced by the promise to give it, has made valuable improvements. (Dawson v. McFaddin, 22 Neb., 131; Ford v. Steele, 31 Neb., 521; Brown v. Sutton, 129 U. S., 238.) Reasonable certainty is all that is required in proving a parol gift.

<p>District Courts: Power oe One Judge to Set Aside Judgment oe Another: Fraud. Where a judgment is rendered against a defendant in a district court having two judges, by one of the judges thereof, an application at the same term to vacate and set aside such judgment on the ground that the same was obtained upon a forged waiver of service of Bummons and confession of judgment, may properly be heard by whichever judge of the court is presiding at the time the application is presented.</p>

<p>1. Instructions: Failure to Number: Exceptions: Review. The failure of the trial court to number the different paragraphs-of the charge to the jury, or to write the word “given ” on the margin of each instruction, as required by the statute, cannot be relied upon in this court for a reversal of the j udgment where no objection was specifically taken on that ground in the trial court at the time the charge was given.</p> <p>2. Limitation of Actions : Criminal Law. A prosecution for a misdemeanor, where the penalty fixed by statute is restricted to a fine of not exceeding ¡S100 and to imprisonment not exceeding three months, must be instituted within one year from the time such offense was committed.</p> <p>3. Criminal Law: Assault and Battery: Statute of Limitations. On the trial of a prosecution for an assault and battery it is error for the court to charge the jury that it was sufficient if they found the offense was committed within eighteen months prior to the filing of the complaint.</p> <p>4. -: -: -: Harmless Error in Instructions. The giving of such instruction is error without prejudice, where the undisputed evidence discloses that the act charged was committed less than a year prior to the filing of the complaint.</p> <p>t>. Review: Instructions: Assignments oe Error. Instructions of which no complaint is made in the motion for a new trial, or in the petition in error, will not he reviewed in this court.</p>

<p>1. Criminal Law: Indictment and Information. In this state prosecutions for crime may be either upon information or by indictment.</p> <p>2. Information: Time to File. An information must be filed by the prosecutor during the term of court at which the accused is required to appear, in case he is held in jail.</p> <p>3. Criminal Law: Failure to File Information: Discharge of PRISONER. Before a defendant in a criminal prosecution, who'has been committed to jail in default of bail by the examining magistrate, is entitled to be discharged under section 389 of the Criminal Code it must appear that neither an information was filed, nor an indictment was found, against him at the term of the district court at which he is held to answer.</p>

Error from the district court of Gage county. Tried below before Broady, J. See opinion for statement of the case. Defendant’s answer admits the making of the contract as-alleged by plaintiff, and admits.the violation of the contract by itself in the first instance. It then alleges as a defense that, after violating the contract itself, it put an end to the contract because plaintiff did not make payments as stipulated in the contract.

<p>Motion for rehearing of case reported in 42 Neb., 809.</p> <p> Motion overruled. </p>

Error from the district court of Johnson county. Tried below before Babcock, J. In an action for breach of covenant the plaintiff, under an allegation that he was compelled to surrender possession of the land to the holder of the superior title, has the burden of proof and must clearly establish the adverse title to which he has thus surrendered and that is paramount. When the plaintiff yields up possession quietly he does so at his peril.

Error from the district court of Johnson county. Tried below before Babcock, J. Where there is a question of fact to be passed upon by the jury, it is error for the court to direct a verdict. (Grant v. Oropsey, 8 Neb., 205; Eaton v. Carruth, 11 Neb., 235.) It was the duty of the court, under the evidence, to direct a verdict for defendant. (Lent v. Burlington & M. R. R. Co., 11 Neb., 204.)

Error from the district court of Douglas county. Tried below before Keysob, J. See opinion for statement of the case. contending that the appeal to the district court was erroneously dismissed, cited: Wiloox v. Baben, 24 Neb., 368; Lepin v. Paine, 18 Neb., 629; MoHugh v. 8miley, 17 Neb., 626, and cases there cited; Reynolds v. Dietz, 34 Neb., 271; Cooper v. Speiser, 34 Neb., 500; Lamb v. Thompson, 31 Neb.,'448; Fwarsv. Rutledge, 4 O. St., 210; Mattison v. Jones, 9 How.

Heard below before Norris, J. A statement of the case appears in the opinion. Appellant’s mechanic’s lien is superior to the mortgage. (Doolittle v. Plena, 16 Neb., 153; Manley v. Downing, 15 Neb., 639; White Lake Lumber Co. v. Russell, 22 Neb., 129; Rogers v. Omaha Hotel Co., 4 Neb., 58; Great Western Mfg. Co. v. Hunter, 15 Neb., 37; Ballou v. Black, 17 Neb., 389.) Appellant’s corporate capacity was sufficiently shown. (Conard v. Atlantic Lns.