Volume 44 — Nebraska Reports

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

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

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

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

<p>1. Trial: Admission oe Evidence: Harmless Error. Prejudicial error will not be implied from the introduction in evidence of a petition verified by affidavit, in which petition were contained only such statements as were afterwards by said affiant - repeated on his oath in the course of the trial in which such petition was introduced in evidence, and in relation to which statements there was thereupon accorded and fully exercised the right of cross-examination.</p> <p>2. Evidence: Letters. Where the handwriting in which was affixed the signature to a letter was identified as that of one of the parties to the action on trial, such letter, if otherwise competent and relevant, is admissible in evidence, even though the signature thereto is denied by the testimony of the party charged with writing it.</p> <p>3. Trial: Opening and Closing. Where, with the tacit consent of his adversary, a party litigant had assumed the burden of proof until the case was ready for presentation to the jury,, the refusal of the district court at that stage of the proceedings to permit the hitherto consenting party to open and close is fully approved.</p>

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

<p>Evidence to Vary Terms of Contract of Guaranty. Upon the faith thereof, goods were furnished to the party in whose favor there was executed by the defendant to plaintiffs this written guaranty: “In consideration that S. A. Maxwell & Co. furnish to M. Stoughton merchandise to the amount of $762.32 on credit, I, for value received, hereby guaranty due payment thereof.” In a suit to recover the purchase price of such goods, less in amount than above named, evidenced by notes of Stoughton, held, that it was not competent to vary the terms of said written guaranty by evidence that the credit contemplated thereby had been in advance, by agreement between plaintiffs and defendant, limited to a certain fixed period of duration.</p>

Heard below before Irvine, J. The facts are stated by the commissioner. If the debt for which the note was given was a partnership debt, then there is no equity in the claim that the execution was not a lien upon the partnership property, because it would only be levying upon property belonging to the partnership for a firm debt, and this could be done whether the execution ran against them individually or as a partnership.

<p>1. Corporations: Railroad Companies: Participation in Relief Department: Ultra Vires: Presumption. The scheme of the Burlington Relief Department, organized and conducted by the Chicago, Burlington & QuiDcy Railroad Company and its employes, examined and set ont in the opinion, and held, (1) as said railroad company is a corporation and no part of its charter is set out in the pleadings or evidence in the record, the court is unable to determine whether the act of the railroad company in participating in the organization and conduct of the Relief Department is within or without the express or implied powers conierred by its charter; (2) in the absence of all evidence on the subject, the court cannot presume such act of the railroad company is ultra vires.</p> <p>2. Contracts with. Belief Department of Bailroad. Company : Consideration: Construction: Public Policy: Estoppel. The contract signed by an employe of said railroad company on becoming a member of said Relief Department, to-the effect that if he should be injured and receive moneys from the relief fund of said Relief Department on account thereof, that the acceptance of such relief fund should operate as a release of such employe’s claim against said railroad company for damages because of such injury, construed, and held, (1) that such contract of an employe did not lack consideration to support it; (2) that the promise made by the employe to the relief department for the benefit of the railroad company was available to the latter as a cause of action or defense; (3) that such contract was not contrary to public policy; (4) that the effect of such contract was not to enable the railroad company to exonerate itself by contract from liability lor the negligence of itself or servants; (5) that the employe did not waive his right of action against the railroad company, in case he should be injured by its negligence, by the execution of the contract; (6) that it is not the execution of the contract that estops the injured employe, but his acceptance of moneys from the Relief Department on account of his injury after his cause of action against the railroad on account thereof arises.</p> <p>3. Eelease and Discharge: Acceptance of Money from Relief Department: Right of Employe to Recover for Negligence of Railroad Company. An employe of said railroad company and a member of said Relief Department was injured through the negligence of the railroad company. After his inj ury there was paid to him from the funds of the Relief Department $60 on account of suoh injury. The employe accepted this money and then sued the railroad company for damages for negligently inj uring him. There was no showing that such employe was induced to become a member of said Relief Department, or execute said contract of release, or accept the money paid to him by said Relief Department, through fraud or mistake. Seld, That the employe could not recover.</p>

<p>Review: Evidence: Failure to Release Mortgage. There is no question of law involved in this case. The evidence examined, and held to support the finding of the jury, and the judgment is affirmed.</p>

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

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

Error from the district court of Richardson county. Tried below before Bush, J. cited: 2 Black, Judgments, sec. 857; McElmoyle v. Cohen, 13 Pet. [U. S.], 312; Chew v. Brumagen, 13 Wall. [U. S.], 497; Keeler v. Elston, 22 Neb., 310; 4 Wait, Actions & Defenses, p. 192, and authorities cited; Nicholas v. Farwell, 24 Neb., 180; Eaton v. Hasty, 6 Neb., 427; Spies v. Whitney, 30 O. St., 69; Braddee v. Brownfield, 4 Watts [Pa.], 474; Packer v. Thompson, 25 Neb., 688; Pringle v.…

<p>1. Partnership: Accounting: Evidence. The evidence held sufficient to sustain the findings of the trial court.</p> <p>2. Set-Off: Insolvency: Equity. The provisions of the Code of Civil Procedure in regard to set-off are not exclusive. The insolvency of a party against whom the set-off is claimed is a sufficient ground for a court of chancery to allow it in cases not provided for by statute. Thrall v. Omaha Hotel Co., 5 Neb., 295, followed.</p>

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

<p>Appeal from the district court of Lancaster county. Heard below before Tuttle, J.</p> <p>cited: Fry’s Election Case, 71 Pa. St., 302; Dale v. Irwin, 78 111., 170; Vanderpoel v. O’Hanlon, 53 la., 246; Pedigo v. Grimes, 13 N. E. Rep. [Ind.], 703; Biddle v. Wing, Clarke & Hall, Digest of Contested Elections, 504; Barnes v. Adams, 2 Bartlett, Cases of Contested Elections, 760.</p> <p>cited: Behrensmeyer v. Kreitz, 135 111., 591; Dale v. Irwin, 78 111., 170; Paine, Elections, sees. 69, 70; Sturgeon v. Korte, 34 O. St., 535; Pvtnam v. Johnson, 10 Mass., 487; Lincoln v. Hapgo^d, 11 Mass., 350; Sanders v. Getchell, 76 Me., 158.</p>

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

<p>1. Pleading: Amendment. This court may, under the provisions of section 144 of the Code, allow amendments in order to conform the pleadings to the facts proved in the trial court, provided such amendments do not change substantially the cause of action or defense.</p> <p>2. -: Amendments After Judgment. But amendments will not be allowed after judgment which change substantially the nature of the action or defense.</p> <p>3. Beview: Bill of Exceptions. The only means provided for the ascertainment by this court of the character of the evidence introduced before the district court is a bill of exceptions authenticated in the manner prescribed by law.</p>

■ Error from the district court of Douglas county. Tried, below before Doane, J. The facts are stated by the commissioner. If there is any evidence to support a verdict, it is errbr to direct the jury to find for the defendant. (Johnson v* Missouri P. R. Co., 18 Neb., 690.) The petition was modeled after the petition sustained in Booker v. Puyear, 27 Neb., 346.

Error from the district court of Douglas county. Tried below before Keysor, J. Tbe court erred in considering and determining the question of partnership between the defendants. (Drake, Attachment, sec. 418; Alexander v. Brown, 2 Dis. [O.], 396; Hermann v. Amedee, 30 La. Ann., 393; Kuehn v. Paroni, 19 Pac.

Heard - below before Wheeler, J. cited: 1 Bates, Partnership, sec. 559; 2 Bates, Partnership, secs. 679, 707, 824; Warren v. Martin, 24 Neb., 273; 3 Pomeroy, Equity Jurisprudence, secs. 1280, 1283. The assets of an insolvent partnership are a trust fund for the payment of partnership creditors. (Till’s Case, 3 Neb., 261; Poop v. Herron, 15 Neb., 73; Caldwell v. Bloomington Mfg.

Error from the district court of Lancaster county. Tried below before Hall, J. % An alteration is immaterial when the law would supply the matter added. (Burnham v. Ayer, 35 N. H., 351; Western Building & Loan Association v. Fitzmaurice, 7 Mo.

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

<p>1. Instructions must be considered together and not by selection of detached paragraphs thereof.</p> <p>2. -: Harmless Error. A slight error in an instruction -will not cause a reversal of the judgment, where it is manifest the party complaining was not prej ndiced thereby.</p> <p>3. An assignment of error for the overruling of a motion for new trial is bad, if it fails to specify to which of the several points set up in the motion the assignment applies. (Glaze v. Parcel, 40 Neb., 732.)</p> <p>4. Bill of Exceptions: Time of Serving: Extension. It is not error to deny a motion for the extension of time for preparing and serving a bill of exceptions, where the party seeking such extension has not used due diligence in that behalf.</p>

Motion by appellees to dismiss appeal from a decree of the district court of Lancaster county on the ground that the cause was not docketed in the supreme court within six months from rendition of judgment. Appellant resisted the motion on the ground that the delay in docketing the appeal resulted solely from the failure of the clerk below to prepare a transcript.

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

Error from the district court of Cuming county. Tried below before Norris, J. T. M. Franse and P. M. Moodie, contra, cited, contending that the property was subject to attachment as Yoder’s: Forrest v. Nelson, 108 Pa. St., 481; Peck v. Heim, 17 Atl. Rep., [Pa.]. 984; Carleton v. Sumner, 4 Pick. [Mass.], 516; Dresser Mfg. Co. v. Waterston, 3 Met. [Mass.], 18; Mixer v. Cook, 31 Me., 340; Bowen v. Burk, 13 Pa.

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

<p>1. Partnership: Evidence. Where it is sought to charge a de» fendant as a copartner, the allegations of the petition being put-in issue by the answer, the plaintiff is required to prove either a partnership in fact, or that the answering defendant permitted himself to he represented or held out as a partner in such way as to warrant third persons in making contracts relying upon-his credit.</p> <p>2. -: -: Directing Verdict. Evidence examined, and held not to sustain the allegation of partnership, and that the-district court did not err in directing a verdict for the defendant.</p>

<p>Replevin: Evidence of Ownership: Pleading. An allegation-of general ownership in an action of replevin is not supported by-proof of a mere lien or olher special ownership. {Musser v. King, 40 Neb., 892; Randall r. 1 erss is, 42 Neb., 607.)</p>

Error from the district court of Douglas county. Tried below before Davis, J. The opinion' contains a statement of the case. Street railway companies are common carriers of passengers and are liable for the slightest negligence.

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

Error from the district court of Madison county. Tried below before Allen, J. cited, contending that the sixty-day limitation was reasonable and valid: Sherrill v. Western Union Telegraph Co., 109 N. Car., 527 j Young v. Western Union Telegraph Co., 65 N. Y., 165;. Massengale v. Western Union Telegraph Co., 17 Mo. App., 259; Cole v. Western Union Telegraph Co., 33 Minn., 227;.

Error from the district court of Clay county. Tried below before Hastings, J. The answer was a substantial confession of the averments of the petition and offered no matter of defense.

<p>1. Usury: Pleading. To constitute a plea of usury there must be a statement of the contract claimed to be usurious, with whom it was made, its terms and character, and the amount of interest agreed upon to be reserved, taken, or received.</p> <p>2. -: Admission or Testimony. The rulings of the trial judgo in admitting certain testimony held erroneous.</p> <p>3. -: Evidence. The finding of the jury and verdict in this case held to be manifestly wrong and not sustained by the evidence.</p>

<p>1. Mortgages: Foreclosure: Action to Recover Debt: Election. Under the provisions of sections 847, 848, 849, 850, and 851 of the Code of Civil Procedure, which should he construed together, and when so construed show that it was the intention of the law-maker not to allow two actions for the one debt to he pending or prosécuted concurrently in point of time, a creditor whose debt is secured by mortgage may either commence and ■ prosecute to judgment an action at law for the recovery of the ■ amount of the debt, or enforce ils payment by means of forel closure; but, having elected which means he will first adopt, and commenced proceedings accordingly, he must exhaust the remedy so chosen before resorting to the other. ■</p> <p>2. -: -: Authority to Bring A ction eor Debt. Where a mortgage debt is secured by the Obligation or other evidence' of debt of any other person besides the mortgagor, the mortgagee' cannot, daring the pendency orafter decree rendered in the action to'foreclose the mortgage, enforce such obligation or evidence of debt in an action at law, unless authorized to commence such' action by the court having j urisdiction of the suit of foreclosure.</p> <p>3. -: -: -: Pleading. The lack of authorization to bring such an action is not a defense necessary to be pleaded, but the contrary should be alleged, or at least proved by the plaintiff, as, without such authorization, the action cannot be maintained.</p> <p>4. -: -: -: Parties. A mortgagee, who by indorsing the notes evidencing the debt which a mortgage is given to secure becomes liable for their payment or for the payment of any sum or balance remaining after foreclosure of the mortgage and application of the proceeds of a sale made under the decree upon the indebtedness, is a proper party to an action to foreclose the mortgage, and as such cannot be sued at law for the recovery of the amount of the debt during pendency or after j udgment in such foreclosure proceedings without leave obtained of the court having jurisdiction of the action of foreclosure to commence such suit at law.</p> <p>5. Pleading and Proof. The pleadings and evidence in this case held insufficient to sustain the verdict.</p>

Error from the district court of Douglas county. Tried below before Keysor, J. cited, contending that agency could not be proved merely by declarations of the alleged agent: 1 Greenleaf, Evidence [14th ed.], sec. 114, and cases there cited; Cleveland Stove Co. v. Hovey, 26 Neb., 624; contending that plaintiffs in error owed the implied duty to sell at South Omaha': The authorities cited in the opinion, and Phy v. Clark, 35 111., 377-382.

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

Error from the district court of Douglas county. Tried below before Doane, J. cited, contending that the judgment should have been set aside: Sec. 602 of the Code; McCann v. McLennan, 3 Neb., 25; Town of Storm Lake v. Lowa Falls & S. C. Ii. Co., 62 la., 218; Callarían v. JEtna Nat.

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

<p>1. H'eview: Conflicting Evidence. Where the evidence was conflicting the verdict reached will not be disturbed unless clearly unsustained by the proofs.</p> <p>2. Trial: Failure to Except to Testimony: Waiver. When ■ testimony has been received without objection, the question of itscompetency is waived, and such testimony will not afterwards be eliminated from the records merely because upon proper timely objection it would have been excluded. Following Oberfelder v. J£avanaugh,tl9 Neb., 427.</p>

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

Heard below before Tibbets, J. cited: Doolittle cited, contending that the material-man was entitled to a joint lien: Wakefield v. Latey, 39 Neb., 285; Phillips, Mechanics’ Liens, sees.. 374, 376; Mandeville v. Reed, 13 Abb. Pr. [N. Y.], 173; Bowman Lumber Co. v. Neioton, 72 la., 90; Leiois «. Saylors, 73 la., 504; Stockwell v. Carpenter, 27 la., 119; Millsap v. Ball, 30 Neb., 728; Bohn 'Mfg.

Error from the district court of Douglas county. Tried below before Keysor, J. cited in addition to cases discussed in the opinion: Turner v. Lord, 4 S. W. Rep. [Mo.], 420; Austin v. Richardson, 1 Gratt. [Va.], 310; Farni v. Tesson, 1 Black [U. S.J, 309; Bragg v. Murray, 6 Munf. [Va.], 32; Garrett v. Shove, 9 Atl. Rep. [R. I.], 901; Irwin v: State, 10 Neb., 325.

Error from the district court of York county. Tried below before Bates, J. The National Masonic Accident Association is a mutual concern, a fact which is determined by the statute under which it is organized. (State v. Crilchelt, 37 Minn., 13;. JBlock v. Valley Mutual Insurance Association, 52 Ark., 201; Masonic Aid Association v. Taylor, 50 N. W. Rep. [S. Dak.], 93; State v. Whitmore, 75 Wis., 332; Commonwealth v. Equitable Benevolent Association, 18' Atl.

' Appeal from the district court of York county. Heard below before Bates, J. The fact's are stated in the opinion by Commissioner Ragan. An action quia timet to declare a judgment not to be a lien on property claimed as a homestead and to debar the creditor from claiming such lien cannot be maintained by a judgment debtor, nor by any one, while the judgment debtor remains the owner of the property.

.. Error from the- district court of Lancaster county* Tried below before Hall, J. See opinion for statement of the case. It was unnecessary to allege that all the stock' had been subscribed. It was sufficient to allege that more than ten percent of the stock had been subscribed.

■ •Error from the . district court of Lancaster county. Tried below before Tibbets, J. -cited, contending that there was such misconduct both on the part of defendants below and of the jury as warranted a reversal: Ensign v. Harney, 15 Neb., 330; Knight v. Free-port, 13 Mass., 218; Thompson, Trials, sec. 2605; Stampofski v. Steffens, 79 111., 303; Ortman v. Union P. R. Co., -32 Kan., 419; Winslow v. Morrill, 68 Me., 362; Bradbury / v. Cony, 62 Me., 223; Sanderson v. Nashua,…

<p>Limitation of Actions: Residence in Another State. Under section 21 of the Code of Civil Procedure, providing that “when a cause of action has been fully barred by the laws of any state or country where the defendant has previously resided, such bar shall be the same defense in this state as though it had arisen under the provisions of this title,” an action is barred in this state when the defendant has resided in another state for the full period of limitations under the laws of that state, even though the cause of action arose here and the defendant resided here when it arose.</p>

<p>1. Fraudulent Conveyances: Evidence. In an action by an attaching creditor of a mortgagor to vacate the mortgage for fraud plaintiff pleaded that “ on the 17th day of April, lo90, and before the levy of the attachment * * A and B conveyed,r the land to the mortgagee. This the answer admitted. Held, That evidence that the mortgage was not delivered until after the levy of the attachment was irrelevant and foreign to the issues.</p> <p>2. -: Pleading. In such case a general averment in the answer denied in the reply that the mortgage was prior to all other liens, does not prevail against the specific pleading of fact, and does not put the date of delivery of the mortgage in issue.</p> <p>3. Amendments will not be allowed after judgment where their effect would be to substantially change the cause of action or: defense.</p> <p>4. Amendments will not be allowed where to do so would prejudice the rights of the adverse party.</p> <p>5. Stare Decisis. First Nat. Bank of Wymore v. Myers, 38 Neb.,. 152, reaffirmed.</p>

<p>1. Evidence examined, and held sufficient to sustain the verdict.</p> <p>H. Landlord and Tenant: Parol Agreement por Repairs. Where a tenant is not obligated by his lease to make any particular repairs a subsequent parol agreement, whereby certain extensive repairs are agreed upon, the landlord promising to pay the cost thereof above a certain sum, is valid and will be enforced.</p> <p>3. --: -Consideration. In such case the making of the repairs by the tenant and his promise to pay a portion of the cost constitute a sufficient consideration for the landlord’s promise.</p> <p>4. Depositions: Objections First Raised at Trial. It is not reversible error ior the trial court to refuse to strike out' a portion of the answer of a witness in a deposition because the answer stated the witness’ conclusion as to the effect of the language used by one whose conversation is related, instead of repeating the language itself, the answer being probative in its character and material to the issues, and no objection having been made until the deposition was read at the trial.</p> <p>3. Pleadings: Amendments: Use op Original in Argument. Where an amended pleading has been filed the original loses its force as a pleading, and the adverse party may not read it to the jury or comment upon it in argument without first offering it in evidence.</p>

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

Error from the district court of York county. Tried below before Wheeler, J. A policy which do^g not, conform to the agreement of the parties, whether by fraud or mistake, may be reformed in equity, and damages for a loss decreed in the same case; but such non-conformance must be conclusively proved. ■(Milligan v..Pleasants, 21 Atl. Rep. [Md.j, 695; Cooper v. Farmers’ Mutual Fvre Ins. Co., 50 Pa. St., 299; Patterson v. Benjamin Franklin Ins. Co., 81 Pa.

<p>1. A telegraph, company is a public carrier of intelligence, with rights and duties analogous to those of a public carrier of goods or passengers.</p> <p>2. Telegraph Companies: Regulation. Section 7, article 11, of our constitution limits the legislature in the regulation of telegraph companies to the correction of abuses and prevention of unj ust discrimination.</p> <p>3. -: Rates : Discrimination. Not all discrimination in rates is unj ust. In order to constitute an unjust discrimination there must be a difference in rates under substantially similar conditions as to service.</p> <p>4. -: -: -: When Prohibited. Chapter 89a, Compiled Statutes, regulating telegraph companies, prohibits, first, all partiality or discrimination between patrons in the handling of business ; second, all partiality or discrimination in rates for similar services ; third, partiality or discrimination as to terms of payment or delivery ; and fourth, all discrimination in favor of persons transmitting dispatches to the greater distance.</p> <p>-5. -: ----In so far as the act referred to forbids unjust discrimination, and disregarding the penalties imposed by the act, it merely declares principles recognized by the common law.</p> <p>8. --: -: -: What Constitutes. Either under the common law or the statute a telegraph company must charge for its services no more than a reasonable rate; under like conditions it must render its services to all patrons on equal terms ; and it must not so discriminate in its rates to different patrons as to give one an undue preference over another.</p> <p>7. -: -: -: -. It is not an undue preferénce to make to one patron a less rate than to another, where there exist differences in conditions affecting the expense or difficulty of performing the service, which fairly j ustify a difference in rates.</p> <p>8. •-: -: -: -: Verdict Against Evidence. Where it is shown that a difference in rates exists, but that there is also a substantial difference in conditions affecting the difficulty or expense of performing the service, no cause of action arises without evidence to show that the difference in rates is disproportionate to the difference in conditions. A jury cannot be permitted to find such disproportion without evidence.</p>

<p>Highways: Location: Damages: Road Funds. . The damages sustained by the land-owner by reason of the location of a public highway cannot be paid out of the county road fund, but must be paid out of moneys in the road fund of the road district in which the laud taken lor the highway is situated. Aclcerman v. Thummel, 40 Neb., 95, followed.</p>

<p>1. Trial. Under section 281a of the Code of Civil Procedure, an action in which the issues have been joined during term time may " be placed upon the trial docket and tried at such term of court.</p> <p>2. -. Causes are to be tried in the district court in the order in which they are entered upon the trial docket, unless the court, in the exercise of a sound discretion, shall direct otherwisi.</p> <p>3. Interest on Taxes: Rate. On the foreclosure of a valid tax sale certificate the holder is entitled to recover interest on the amount bid at the sale and on the several sums paid for subsequent taxes on the property, at the rate of twenty per cent per annum, from the date of the sale and said payments respectively until the expiration of two years from the date of the purchase, and ten per cent interest thereon after that period.</p> <p>4. Attorney’s Fees: Costs: Tax Salks. The holder of a tax lien, based upon a valid tax sale, on obtaining a decree foreclosing the same, is entitled to an attorney fee of ten per cent of the amount of the decree.</p>

<p>Judgments: Modification After Term. The power of a district court to vacate or modify its own judgments after the term at which they were rendered is limited to the grounds for granting such relief enumerated in section 602 of the Code of Civil. Procedure.</p>

<p>1. District Courts: Judges: Authority at Chambers. “The •judges of the several district courts, as such, have no inherent authority at chambers whatever, but only such as the statutes give them." Ellisv. Karl, 7 Neb., 381, followed.</p> <p>2. -: -: -: Injunction. The authority of district judges at chambers in injunction cases is limited by law to the power “to grant, dissolve or modify temporary injunctions ” and does not include a final disposition of the cause, either by dismissal or otherwise.</p> <p>3. Injunction Bonds: Action Before Termination of Suit. No right of action accrues upon an injunction bond given on the granting and issuance of a temporary injunction in an action commenced to obtain a perpetual injunction until the final determination of the suit in which the temporary order was granted, and an action at law instituted on the undertaking prior to the final disposition of the cause is prematurely brought and cannot be maintained.</p> <p>4. -: -: Evidence. Held, that the evidence in this case does not show a final determination of the suit in which the injunction bond upon which it is based was given.</p>

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

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

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

Error from the district court of Douglas county. Tried below before Doane, J. The opinion contains a statement of the case. Where a policy of insurance contains a stipulation that if the assured shall have or shall subsequently obtain additional insurance upon property insured, without the consent of the company indorsed in writing on the policy, the same shall be void, said stipulation is material, and lawful, and will be upheld. (Herman Ins.

Error from the district court of Douglas county. Tried below before Keysor, J. The facts are stated by the commissioner. Denial of liability after expiration of time for furnishing proofs of loss is not a waiver of the proofs. (Wood, Eire Insurance, p. 725; Metropolitan Safety Fund Accident Association v. Windover, 27 N. Ip. Rep. [III.], 538; Van Kirk v. Citizens Ins.

<p>1. negotiable Instruments: Payment: Notice to Transferee. Where a negotiable promissory note has been before maturity indorsed to a third person, the maker of the note must, in order to avail himself of the defense of payment before the indorsement, plead and prove that the plaintiff had notice of such payment before the indorsement.</p> <p>2. Bill of Exceptions : Documents: Authentication. In order to authenticate a document attached to a record as the bill of exceptions settled in the district court, there must be a certificate of the clerk of the court to that effect.</p> <p>3. -: Allowance by Clerk. The mere stipulation of coun.sel that the clerk of the court may sign and allow a bill of exceptions Í3 pot sufficient to confer authority upon him to do so. In order to confer such authority it must appear that the judge is dead; that he is prevented by sickness or absence from signing and-allowing the bill, or the parties or their counsel must agree upon the bill of exceptions and attach thereto their written, stipulation to that effect. Scott ». Spencer, 42 Neb., 632, followed.</p>

<p>1. Executions: Distribution op Proceeds op Sale. Where two or more judgments in favor of different plaintiffs and against the same defendant are entered at the same term of the district court, and executions are issued thereon during the term, or within ten days thereafter, and delivered to the sheriff, although on different days, which are levied upon the "debtor’s goods and chattels, the money arising from the sale under any or all of such writs, if insufficient to satisfy all the executions, must he apportioned pro rata among the several execution creditors.</p> <p>2. -: -. Where two or more writs of execution against the same debtor are delivered to the officer on the same day, in distributing the fund raised thereon, or upon any one of such writs, each creditor is entitled to a pro rata application of the money.</p> <p>3. -: -. In every case not enumerated above the execution first placed in the hands of the officer for service has preference and must be first satisfied.</p> <p>4. J udgments: Transcripts From Inferior Courts. The filing of the transcript of a judgment of a justice of the peace or county court with, and the docketing of it by, the clerk of the district court do not make it a judgment of the district court.</p> <p>5. Executions: Distribution of Proceeds of Sale. Two executions were issued against H. upon judgments of the district court during the term at which they were entered and placed in the hands of the sheriff, who levied the writs upon the personal property of the debtor, and subsequently, at the same term of said court, several transcripts of judgments recovered against H. before a justice of the peace were filed in the district court, and executions were immediately issued thereon by the clerk and delivered to the officer, which were levied upon the same property subject, to the other levies. Sold, That the money raised on the sale of the property must be first applied pro rata to the satisfaction of the writs first delivered to the officer, and next to the payment of the other executions in the order of their priority.</p>

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

Tried below before Scott, J. Plaintiff in error having had a preliminary examination on a complaint charging the forgery of one instrument, the filing of an information by the county attorney charging the forgery of another instrument was without jurisdiction and void. ( White v. State, 28 Neb., 341.) An immaterial variance should be disregarded. (Moore v. State, 20 Tex.

<p>1. Counties: County Board: Proceedings. County commissioners cannot legally transact county business except at a regular session of the county board, or one specially called by the county clerk of which notice is given in the mode provided by law.</p> <p>2. -: Location op Drainage Ditches: Validity op Proceeding. On July 9, 1892, a petition for the location ond construction of a ditch was filed with the county clerk of B. county, and on the same day the county commissioners adjourned to meet on August 2, following. On July 16, without any special session of the county board being called, two members of the board1, of county commissioners, together with the county surveyor, met at the office of the county clerk, and upon consideration of said! petition located the proposed ditch and ordered the construction» thereof. Held, That the proceedings were a nullity, and the special assessments levied for the purpose of paying for such improvement were absolutely void.</p> <p>3. Injunction: Restraining Collection of Void Taxes: Parties. A party who is not guilty of laches may invoke the aid of a court of equity to restrain the collection of a void tax or assessment.</p>

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

<p>1. Municipal Corporations: Road Taxes: Statutes. The provision of section 49 of the act of March 29, 1889, for the incorporation of cities of the first class, that “theroad taxes collected from property in the city shall be paid to the city treasurer and expended as the council may direct,” has reference merely to such taxes as are by general law collected for the use of the city as a road district, and was not intended as a repeal of the provision of section 76 of the general road law for the distribution of the county road fund.</p> <p>2. Statutes: Constitutional Law. But assuming the legislature by the act first above mentioned to have intended a repeal of the-provision of the general road law for the distribution of the-county road fund so far as it affects cities of the first class, it i& within the restriction contained in section 11, article 3, of the-constitution and, therefore, void.</p>

<p>1. Registration, of Tax Deeds. The provision of the revenue taw for the recording of treasurer’s tax deeds is mandatory in the sense only that it is made the duty of the register of deeds to record such conveyances when presented for that purpose, accompanied by the fee prescribed by law.</p> <p>% County Treasurers: Tax Deeds: Collection of Registration Fees. A county treasurer is not entitled as a condition to the execution and delivery of a tax deed to demand and collect the fee allowed the register of deeds for recording the evidence upon which such conveyances are issued.</p>

<p>1. Intoxicating Liquors: Death From Drunkenness: Action Against Saloon-Keeper: Damages: Question eor Jury. H., a section foreman, left his home in company with a friend on a hand-car to transact business in the city of K., four miles distant, where they arrived about 5:45 P. M., and wenifdirect to the saloon of C., and each drank whiskey. They returned to the saloon twenty or thirty minutes later and again drank whiskey, and where H. remained, except at short intervals, until nearly 11 P. M.,in the meantime drinking three or four glasses of beer in said saloon. About the hour last named they started to return home on the hand-car, but were run down by a fast passenger train and H. instantly killed. One of the station men observing that the deceased was drunk and staggering, cautioned him against starting ahead of the passenger train, which was due to arrive in ten minutes. The evidence of C. tended to prove that they did not observe the train until about the instant of the collision, although both were aware that it was then due. Held, The question whether the liquor furnished by C. contributed to the fatal result so as to render him liable in an action under the statute by the widow of the deceased was properly submitted to the jury.</p> <p>2. -: -:-: Evidence. It is immaterial whether the deceased was on account of drunkenness physically incapable of jumping from the hand-car, or whether he was thereby rendered insensible to the peril of his position until to'o late to escape. The foregoing evidence accordingly held admissible under an allegation that “Said H., on account of his drunken condition, was unable to alight Irom said hand-car and was struck,” etc.</p> <p>3. -: -: -: -. Held, On the evidence adduced, that the drunkenness of the deceased was the primary cause of the fatal accident, and that the court did not err in refusing to submit to the jury the question of the negligence of the railroad company.</p> <p>4. Damages: Evidence. Evidence examined, and held sufficient to sustain the verdict in favor of the plaintiff below.</p>

Error from the district court for Clay county. Tried below before Hastings, J. The facts are stated in the opinion. When the injury happened the persons through whose instrumentality it was inflicted must have been engaged in doing an act for the person sought to be charged with liability. (Wood, Law of Master & Servant, sec. 281 Roddy v. Missouri JP.

<p>1. Corporations: Liability for Torts of Officers. The term. “scope of authority,” as used in the law defining the liability of corporations for the tortious acts of their officers and agents, is not susceptible of a precise definition, but is limited to acts in some way incident to the employment and duties of such agents and having some relation to the obvious purpose of their appointment.</p> <p>2. -: -: Sale of Bonds: Construction Company. A railroad company delivered to a construction company its bonds which had been earned by the latter in building certain lines of road. Afterward the directors of the construction company, a majority of whom were officers of the railroad company or controlled by it, voted to sell said bonds, then worth their face, to the stockholders of the construction company pro rata, according to the number of shares held by each,-at a discount of ten per cent. The minority stockholders not being able to take and pay for the amounts thereof allowed to them, bonds were by a subsequent resolution disposed of at the same rate to the directors interested in the railroad company. No part of the proceeds thereof were returned to the last named company nor did it profit in any way by the transaction. Held, In an action by the minority stockholders of the construction company against the railroad company for an accounting, that the action of the directors named in disposing of said bonds at a discount was not within the scope of their authority as officers of the last named corporation and that said company is not liable for the loss thereby occasioned.</p> <p>3. -: -: -: -. The fact that such bonds may have been withheld for a considerable time after they were earned by the construction company, to the damage of the latter in the loss of promised subsidies and prospective profits, although actionable in the proper proceeding, will not render the railroad company liable for loss by reason of the negligent or corrupt action of the directors of the last named company in disposing of said bonds for less than their value.</p> <p>4. Damages. In all actions for damages the wrong done and the injury sustained must bear toward each other the relation of cause and effect, and the damages must be the natural and proximate consequence of the act complained of.</p> <p>5. Corporations: Officers: Conspiracy: Ratification. Held, (1) From an examination of the evidence, that the loan to the construction company of $2,500,000 of the bonds of the railroad company by the president of the latter was a personal transaction in which said corporation was in nowise interested, and not made in pursuance of a conspiracy to which it was a party, having for its purpose the wrecking of a construction company; (2) that the last named company ratified said transaction by receiving and appropriating the bonds, and subsequently paying interest thereon with the knowledge and consent of all the stockholders.</p> <p>6. Contracts: Pleading. The illegality of an agreement, unless disclosed by the pleadings or proois of the party claiming through it, must, in order to be available to the adverse party, he specially pleaded.</p> <p>7. Public Policy : Contracts. Agreement examined in the light of the evidence, and held not void as against public policy.</p> <p>S. Payment. A debt will not be extinguished by the payment of a less sum .thau the amount actually due, unless based upon a new and sufficient consideration.</p> <p>8. Release and Discharge: Consideration. The settlement of a doubtful or disputed claim is generally a sufficient consideration for a compromise; but in order to have such effect it is essential that there he in fact a dispute or doubt of the rights of the parties. An arbitrary refusal to pay, based on the mere pretense of the debtor, made for the obvious purpose of exaetiug terms which are inequitable and oppressive, is not such a dispute as will of itself support a compromise resulting in a reduction of the amount of his indebtedness</p> <p>10. Corporations: Contracts by Directors Who are Members of Two Rival Companies: Validity. Persons who are directors of two corporations have no implied authority to bind either by contracts with respect to subjects in which their interests are adverse; and all such agreements, unless subsequently ratified, may be avoided at the suit of non-consenting stockholders.</p> <p>11. Equity: Rescission: Duress. When money is paid or concessions exacted through necessity in order to obtain property illegally withheld, where its detention is accompanied by immediate hardship or irreparable injury, such transaction may be avoided on the ground of compulsion, although perhaps not amounting to a technical duress.</p> <p>12. Principal and Agent: Ratification. Acquiescence by a principal in the fraudulent or unauthorized act of his agent is in effect a new agreement made with an intent to condone the wrong done, and will not be inferred from doubtful evidence, but should be established like any other material fact, by the party asserting it.</p> <p>13. Equity: Rescission: Laches. Mere lapse of time, unaffected by other circumstances, will not bar the right to rescind a voidable transaction, since it is not for a wrong-doer tb impose extreme vigilance or promptitude as conditions to the exercise of . the rights of the injured party.</p> <p>14. -: -: -: Evidence. But the failure of the injured party to object after knowledge of the wrong is evidence of ratification, and may, especially when long continued, be sufficient of itself to warrant a finding for the party alleging such faet.</p> <p>15. Parties: Objections. Objection on account of the absence of parties who are not indispensable to a determination of a controversy should be made by answer or demurrer, otherwise the court may determine the rights of the parties before it.</p> <p>16. Removal of Causes. The courts of this state will not examine an order of the circuit court of the United States remanding a cause for want of jurisdiction in order to determine whether such proceeding is in accordance with the practice of that court. Such an inquiry should be made only in the court by which the order is made.</p> <p>17. Receivers: Garnishment. It is no objection to the appointment of a receiver of a corporation, in an action by a stockholder for and accounting in its behalf against a corporation indebted to it, that the debtor corporation was summoned as garnishee of the first named corporation in an action against it by attachment, where the attachment proceeding has been abandoned and judgment entered for damage only, without any reference to the garnishee.</p> <p>18. Courts: Jurisdiction. It is a rule recognized alike by state and federal tribunals that the court which first acquires jurisdiction of the subject of an action will retain such jurisdiction until the final determination of the controversy.</p> <p>19. Amount of Decree. Fitzgerald v. Fitzgerald,' & Mallory Construction Co., 41 Neb., 374, so modified as to authorize a decree in. favor of the plaintiff for $300,906.33.</p>

<p>Mandamus: Review. A mandamus proceeding under our Code of Civil Procedure is an action at law and can be reviewed only on error and cannot be appealed. State v. Lancaster County, 13 Neb., 223, followed.</p>

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

<p>1. Instructions: Assignments of Error. Where instructions are grouped in the respective paragraphs of a petition in error in which the giving or refusal to give them is assigned as error, such errors will be examined no further than to determine that of those given one was correct, or of the instructions refused the action as to one was not erroneous.</p> <p>2. Assignments of Error. An assignment in a petition in error that “there was error of law occurring at the trial, duly excepted to ” is not sufficient to obtain a review of the action of the court upon the admission of testimony.</p> <p>3. Review: Sufficiency of Evidence. Where there is sufficient evidence to sustain a verdict it will not be disturbed.</p>

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

<p>Street Railways: Negligence of Motor man: Personal Injuries: Evidence. The evidence in this case considered, and found not to sustain the verdict upon which judgment was rendered;</p>

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

<p>1. Instructions: Exceptions: Review. The refusal to give an instruction requested cannot be reviewed in the absence of an exception.</p> <p>2. Review: Evidence: Omissions From Bill of Exceptions. The assignment that the verdict is not sustained by the evidence cannot be considered, where from the bill of exceptions it appears, without question, that therefrom has been omitted evidence which may be important.</p> <p>3. Trial: Admission of Evidence: Review. The ruling sustaining an objection to a question cannot be reviewed where there was made no tender of evidence which an answer, if permitted, would disclose.</p> <p>4. Pleading: Motion to Strike: Harmless Error. It was not error to overrule a motion to strike out portions of a petition where, by reason of such ruling, it does not appear that the moving party was prejudiced.</p> <p>5. -. Courts very properly refuse affirmatively to direct what language must be employed in drafting pleadings.</p>

Error from the district court of Merrick county. Tried below before Marshall, J. The facts are stated by the commissioner. The owner of the lower estate may, without incurring liability for damages, erect a dike or embankment to prevent the flow of surface water on his land, even though it it may cause the water to back up and overflow adjoining lands.

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

Error from the district court of Douglas county. Tried below before Keysor, J. See opinion for statement of the case. The company made defense upon the merits of the case, contending and answering that the policy was void, whereby it cannot now be heard to allege and rely upon a want of proof of loss. (Phenix Ins. Co. v. Bachelder, 32 Neb., 490.) Oral testimony is not admissible to show that the title was held in trust. (Bichiell v. Lancaster City & County Fire Ins.

Error from the district court of Otoe county. Tried below before Chapman, J. The opinion contains a statement of the case. The action must fail, because there was a mortgage upon the insured premises at the time of the fire, the existence of which had not been disclosed to the company. (Waller v. Northern Assurance Co., 10 Fed. Rep., 232; Bowman v. Franklin Fire Ins. Co., 3 Ins. L. J. [Md.], 935; Ilinman ■v. Hartford Fire Ins.

Error from the district court of Washington county. Tried below before Scott, J. The facts are stated by the commissioner. Where a policy requires the furnishing of proofs of loss as a condition precedent to a right of recovery on the policy the proofs must be furnished. (German Ins.

Error from the district court of Pierce county. Tried below before Kinkaid, J. See opinion for statement of the case. There is no privity of interest between the sureties on the first and second bonds. The liability incurred by a surety on an official bond is for the term for which the’officer was elected, and the courts have universally held that the liability of a surety on such bond is to be strictly construed according to the terms of the bond.

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

<p>1. Fraudulent Conveyances: Sales : Change oe Possession. Where a sale of goods is not followed by an actual and continued change of possession, the presumption is that the sale was made with the intention of hindering, delaying, or defraud- ' iug creditors of' the vendor, and in a contest with such creditors the burden is on the vendee to prove that he purchased in good ' faith and for value.</p> <p>2. -: -: -: Burden of Proof. Therefore, where there was evidence in a contest between a vendee and creditors of the vendor tending to show that there had been no change of possession, it was error to instruct the jury that the burden of proof was on the creditors to establish fraud.</p> <p>3. -. A conveyance of goods for the purpose, on the part of the vendor known to the vendee, of hindering, delaying, or defrauding creditors is void as to such creditors, even though the vendor be not insolvent.</p> <p>4. -. All persons who were creditors of the vendor at any time while the goods remained in his possession or under his control are within the protection of the statute against fraudulent conveyances.</p>

<p>1. Trespassing Animals: Duty op Distrainor to Peed. The owner of live stock taken up under the herd law by the owner of cultivated lands, on which they are found .trespassing, is not, while the stock remains in the possession of the land-owner by virtue of his lien, under obligations to feed, water, or care for such stock. Such obligations devolve upon the lienor.</p> <p>2. -: --: Degree oe Care. In keeping the stock and caring therefor the lienor is required to exercise only such care as would be exercised by a person of ordinary prudence- under the circumstances.</p> <p>3. -: Arbitration: Res Adjudicata: Damages to Stock. The authority of arbitrators appointed under the herd law is merely to appraise the damages and costs sustained by the landowner, and, therefore, any right of action which may accrue to the owner of the stock by reason of the former’s negligence in keeping the same is not barred by the fact that the statutory arbitration was had and damages assessed and paid.</p> <p>4. Instructions. An instruction which misstales the law is not cured by other instructions stating it correctly, because the jury would be left in doubt as to which paragraph was correct. ( Was-son ■i>. Palmer, 13 Neb., 376.)</p>

Error from the district court of Clay county. Tried', below before Hastings, J. See opinion for references to authorities upon the propositions discussed.

Heard below before Ferguson, J. See opinion for statement, of the case. The alteration of a note in any material part renders it wholly invalid as against a party not consenting thereto, even in the hands of an innocent purchaser.

<p>a. Briefs: Waiver or Error. Assignments in a petition in error not argued in the brief of the plaintiff in error will he considered waived.</p> <p>32. Criminal Law: Errors. During Trial: Review. In order to obtain a review of alleged errors occurring during the trial the attention of the district court must he challenged to the same in a motion for a new trial, and such alleged errors must he specifically assigned in the petition in error.</p>

<p>1. Ejectment: Occupying Claimants: Report or Appraisers: . Objections. Objections to the.report of appraisers made under the provisions of the occupying claimants act (ch. 63, Comp. Stats.) should be filed on or before the second day of the term of the district court next after the filing of the appraisement with the clerk of the court, where such report is made and filed in vacation.</p> <p>2. -: -: -: -: Review. The court may permit such objections to be filed out of time, but ,it is not reversible error to refuse so to do, where no abuse of discretion is shown.</p> <p>3. -: -: Appraisement. The appraisers appointed under ■ said law are required to make their appraisement from a view of the premises. They have no authority to take the testimony of witnesses.</p> <p>4. -;-: Improvements: Measure or Recovery. Where an occupying claimant is allowed for valuable and lasting improvements made while in possession, the measure of his recovery is the amount the real estate increased in value by reason of snch improvements, and not the cost of making the same. (Fletcher v. Brown, 35 Neb., 660.)</p> <p>5. Limitation of Actions: Tax Liens. The statute of limitations relating to the foreclosure of tax liens is no bar to the recovery of taxes under the provisions of the occupying claimants’ act.</p>

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

Tried1 below before Tibbets, J. The court erred in not instructing the jury that under-the information the prisoner could be convicted of assault and battery. (Thurman v. State, 32 Neb., 224; Penderson v. State, 21 Tex. App., 485.)

Heard below before Norris, J. The facts are stated in the opinion. The stipulation for payment of an attorney’s fee doe» not render the note non-negotiable. (Sea v. Glover, 1 111» App., 335; Garlón v. Kenealy, 12 M. & W. [Eng.], 139 ~ German Mutual Fire Ins. Co. v. Franck, 22 Ind., 364-Chicago Railway Equipment Co. v. Merchants Nat. Bank., 136 U. S., 268.) A provision in a note allowing the payee to declare the debt due does not impair the negotiability of the instrument.

Heard below before Holcomb, J. A statement of the case appears in the opinion. To support the contention that' the mortgage was not executed under duress the following cases were cited: Mundy' v. Whittemore, 15 Neb., 647 ; Wilson Sewing Machine Co. v. Gurry, 25 N. E. Rep. [Ind.], 898; Sornborger v. Sanford, 34 Neb., 499; Harmon v. Harmon, 61 Me., 231; Plant v. Gunn, 2 Woods [U. S.], 372; Thorn v. Pinkham, 24 Atl.

<p>1. Religious Societies: Regularity of Ecclesiastical Proceedings: Review by Civil Courts. Where a local church organization is a member of an association of congregations having a set of general rules for the government and conduct of all its members and officers and the orders and judgments of the association are binding upon the minor organizations or .congregations composing it, its decisions, in so far as they relate exclusively to church affairs and government, are absolute and will be so regarded by legal tribunals.</p> <p>2. -: -: -. Courts which have no ecclesiastical jurisdiction will not review or revise the proceedings during trial by, ' or judgments of church tribunals, constituted by the organic laws of the church organization, where they involve solely questions, of the church organization and discipline or infractions of the laws and ordinances enacted by its ruling body for the govern- ■ ment of its officers and members.</p> <p>3. -: -: Removal of Clergymen: Review of Proceedings: Injunction. Where charges have been preferred against a minister of the gospel, and he has been adj udged guilty by the highest tribunal of the church organization before which the matter has been presented, and deposed from the ministry and expelled from membership in the church, courts will recognize such judgments of the church tribunal and enforce their observance when regularly brought to their notice, and in an action for the purpose will en join the one against whom they were rendered from further acting in the capacity of a minister or enjoying the rights of a member of the particular church organization, aud will also enjoin such party and members of the' local congregation or others who have combined with him. from excluding from the church building and property and its use for any proper purpose, or from disturbing them in orduring such use, parties, ministers appointed to take charge of the congregation and church, by the then, so far as the evidence in the case before the court discloses, recognized and appointive power, or in so excluding and disturbing a presiding elder of the church from or in its proper occupancy or use or any members in good standing who desire to worship therein in a regular manner and ac-' ■cording to the established rules and ordinances of the church,'. where it further appears that the church property was conveyed to the organization or its trustees, for church 'purposes and in , such a manner that it is subject to the control of the general association or governing power of the church and its rules and laws.</p>

<p>Instructions: Burden of Proof: Harmless Error: Review. An instruction is not of necessity prejudicially erroneous because its meaning is obscure; and although therein the burden of proof is unintelligibly defined, a cause will not therefore be reversed when the record shows that another instruction was given which, with clearness, placed such burden upon the defendant in error.</p>

<p>Partnership : Evidence op Membership. Where it was sought to hold the defendant liable as a member of a partnership firm, the mere statements, of one who claimed to be acting for, and as a member of, said firm were not competent to establish the disputed partnership relation.</p>

<p>Replevin: Verdict: Direction for Defendant: Evidence. In this case there were involved only questions of fact, as to which the evidence was such as fully justified the direction given the jury to find for the defendant in error.</p>

Error from the district court of Lancaster county*. Tried below before Strode, J. The facts are stated by the commissioner. The measure of damages is the market value of the landat the time and in the condition it was taken. Testimony in conflict with this rule is inadmissible. (Blakeley v. Chicago, K. & N. R. Co., 25 Neb., 207; Republican Valley R. Co. v. Arnold, 13 Neb., 485; Harris v. Schuylkill R.. H. S. R. Co., 21 Atl.

Motion by appellee to quash the transcript of appeal from a decree of the district court of Cedar county on the ground that the certificate of the clerk has been altered.

Error from the district court of Adams county. Tried below before Beall, J. The power of the legislature over municipal boundaries is absolute and no inferior body has power to act, unless specially delegated by the legislature. (15 Am. & Eng. Ency. Law, 1002, 1003, 1023; Boone, Corporations, sec. 285; Dillon, Municipal Corporations [4th ed.], secs. 182, 183, 185; City of Wahoo v. Dickinson, 23 Neb., 430; Maddrey v. Cox, 11 S. W. Rep. [Tex.], 541.)

Error from the district court of Jefferson county. Tried below before Broady, J. The facts are set out in the opinion.

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

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

<p>Error from the district court of Dodge county. Tried below before Sullivan, J.</p> <p>cited: Jones v. Thomas, 8 Black. [Ind.], 428; Smith v. Hague, 25 Kan., 246; Beckman v. Sikes, 35 Kan., 120; Scriven v. Moote, 36 Mich., 64; Lane v. King, 8 Wend. [N. Y.], 584; Shepard v. Philbrick, 2 Den. [N. Y.], 174; Simers v. Salius, 3 Den. [N. Y.], 219; Gillett v. Balcom, 6 Barb. [N. Y.], 370; Jewett v. Keenholts, 16 Barb. [N. Y.], 193; Gardner v. Finley, 19 Barb. [N. Y.], 320; Howell v. Schenck, 24 N. J. Law, 89; Pitts v. Hendrix, 6 Ga., 452; Sherman v. Willett, 42 N. Y., 146; Borrell v. Dewart, 37 Pa. St., 134; Tripp v, Hasceig, 20 Mich., 254; Lathrop vi Nelson, 4 Dill. [U. S.], 194; Taylor v. Cooper, 10 Leigh [Ya.], 317; Wagner v. Cohen, 6 Gill. [Md.], 102; Taylor v. Courtnay, 15 Neb., 197; Day v. Thompson, 11 Neb., 128.</p> <p>cited: Sornberger v. Berggren, 20 Neb., 399; Whitmarsh v. Cutting, 10 Johns. [N. Y.], 361; Cassilly v. Rhodes, 12 O., 88; Houtz v. Showalter, 10 O. St., 124.</p>

<p>1. Res Adjudicata: Accounting. Where a decree has been rendered determining certain issues in a case and reserving the case for further proceedings to carry out the first decree, as for an accounting, the supplemental proceedings cannot be made the means of relitigaling any issues determined by the first decree.</p> <p>2. Accounting : Review. Evidence examined, and held, sufficient to sustain the finding of the trial court.</p>

<p>Error from the district court of Lancaster county. Tried below before Tibbets, J.</p> <p>cited: Western Union Telegraph Go. v. Foster, 64 Tex., 220; Cincinnati, H. & I. R. Co. v. Carper, 112 Ind., 26.</p>

Error from the district court of Antelope county. Tried, below before Allen, J. An attempt to prevent an election by injunction amounts to nothing. Parties are not guilty of contempt for refusing to obey such an injunction. (2 High, Injunctions [2d ed.], 1286; Guebelle v. Epley, 28 Pac. Rep. [Col.], 89;-Smith v. McCarthy, 56 Pa.

Error from tlie district court of Lancaster county. Tried below before Tuttle, J. The facts are stated in the opinion. The provision for suspending the policy in case of default in payment of the premium note is not Unreasonable. (Phenix Ins. Co. v. Baehelcler, 32 Neb., 490 ; St. Paul Fire & Marine Ins. Co. v. Coleman, 43 N. W. Rep. [Dak.], 693; Williams v. Albany City Ins.

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

<p>1. Appeal from Justice of the Peace: Procedure in Appellate Court. Where a party to a judgment rendered by a justice of the peace files an undertaking for an appeal within ten days after the date of the judgment, but fails to file a transcript of the proceedings in the district court within thirty days-next following the rendition of the judgment, the appellee may file such transcript, and have the cause docketed; and the district court is authorized, on his motion, either to dismiss the appeal, or enter judgment in his favor similar to that rendered by the justice. Wilde v. Preuss, 33 Neb., 790, followed.</p> <p>2. --: -: Replevin. The above rule applies to actions of replevin before a justice of the peace, as well as to all other civil causes determined injustice courts.</p> <p>3. Replevin: Judgment: Harmless Error. Where judgment is. entered in favor of the defendant in an action of replevin merely for damages for withholding the property and costs, the plaintiff cannot complain that no judgment was rendered against him. either for a return of the property, or for the value thereof, in case a return cannot be had, or the value of the possession of the-same. In such case the failure to render an alternative judgment is error without prejudice to the plaintiff.</p>

<p>1. Criminal Law: Review: Sufficiency of Evidence: Opinion of Attorney General. Ordinarily, a judgment of conviction in a criminal prosecution will be reversed whenever the attorney general, after an examination of the record, declines to submit a brief in behalf of the state on the ground that such judgment is not supported by the evidence.</p> <p>2. Rape: Sufficiency of Evidence. Evidence examined, and held not to sustain a conviction on the charge of rape.</p>

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

<p>1. Review: Findings of Court: Motion foe New Trial. A motion for a new trial is as essential to a review in this court by petition in error, where the judgment or order complained of is based upon findings of the court, as upon the verdict of a jury.</p> <p>2. Motion for New Trial. Primarily the office of a motion for a new trial is to afford the court an opportunity to correct errors in its own proceedings without subjecting parties to the expense and inconvenience of appeal or petition in error.</p> <p>3. Courts: Power to Correct Errors. The power to correct errors in their own proceedings is inherent in all courts of general jurisdiction, and in the exercise of that discretion they are governed not alone by this solicitude for the rights of litigants but also by considerations of justice to themselves as instruments provided for the impartial administration of the law.</p> <p>4. Review: Discretion of Trial Court. A stronger case will be required for interference by this court on account of an order setting aside a verdict resulting in a second trial on the merits of a cause than where the motion therefor is denied. (Bigler v. Baker, 40 Neb., 325.)</p> <p>5. Payment: Duress. Payments or concessions exacted from the owner of property unlawfully withheld, in order to obtain possession thereof, where the detention is accompanied by immediate hardship or irreparable injury, may be avoided on the ground of compulsion, although not amounting to technical duress. (Fitzgerald v. Fitzgerald <& Mallory Construction Co., 44 Neb., 463.)</p> <p>6. -:'-. But one threatened with civil process, unaccompanied by any act of hardship or oppression, is required to make his defense in the first instance to the merits of the claim, and cannot postpone litigation by paying the demand and afterward maintain an action therefor.</p>

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

<p>1. Fraudulent Conveyances: Transactions Between Relatives: Evidence. Where property is conveyed from one relative to another as a payment of an .alleged past due indebtedness, and thereby creditors of the party making the conveyance are deprived of their just dues and claims, the transaction will be scrutinized or examined very closely, and its bona fides must be clearly established. Plummer v. Pummel, 26 Neb., 147, followed.</p> <p>3, Review: Conflicting Evidence. The finding of a-trial court based upon conflicting evidence will not be disturbed on appeal to this court unless clearly wrong.</p> <p>3. Fraudulent Conveyances: Evidence. The evidence in this case examined, and held, sufficient to sustain the findings of the district court.</p>

<p>Error from the district court of Pierce county. • Tried below before Jackson, J.</p>

Error from the district court of Lancaster county. Tried below before Hastings, J. A party to a contract who has facilities and opportunities for examining and ascertaining the true state of affairs, has mo right to rely upon the representations of the other party. {Parker v. Moulton, 114 Mass., 99; Mooney v. Miller, 102 Mass., 217; Poland v. Brownell, 131 Mass., 138.) To avoid a contract on the ground of false representations it must be shown that the representations were…

<p>Quieting Title: Cancellation of Contract : Review: Sufficiency of Evidence. On this appeal the only question presented being the sufficiency of the evidence to sustain the decree of the district court, and a full consideration of all the proofs being found to justify such decree, it is affirmed.</p>

<p>Oral Instructions: Criminal Law. Under the provisions of sections 52 to 56, chapter 19, Compiled Statutes, the giving of oral instructions in either civil or criminal cases, without a waiver of the statutory requirement that they be given in writing, is reversible error. An oral instruction, over proper objections, having been given in this case in disregard of the above statutory provisions, the judgment of the district court is reversed.</p>

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

<p>Attachment: Lien of Levy: Purchase Money Notes. The levy of a writ of attachment creates a priority over rights reserved or created by conditions contained in unrecorded notes given by .the attachment debtor for the purchase price of the personal property levied upon.</p>

<p>Appeal from the district court of Dodge county. Heard below before Sullivan, J.</p> <p>cited: 15 Am. & Eng, Ency. Law, 19 ; Knapp v. Brown, 45 N. Y., 207; Muldoon v. Pitt, 54 N. Y., 269; Hickmann v. Pinkney, 81 N. Y., 216; Cornell v. Barney, 94.N. Y,, 394; Boteler v. Espen, 99 Pa. St., 313.</p> <p>cited: O’Neil v. St. Olaf’s School, 26 Minn., 329; Meyer v. Berlandi, 40 N. W. Rep. [Minn.], 513; Laird v. Moonan, 32 Minn., 358; Hill v.. Gill, 42 N. W. Rep. [Minn.], 295; Bohn Mfg. Co. v.. Kountze, 30 Neb., 719; Henderson v. Connelly, 123 111.,, 98; Millsap v. Ball, 30 Neb., 728; Pomeroy v. White Lake Jjumber Co., 33 Neb., 243.</p>

Error from the district court of Douglas county. Tried below before Davis, J. The facts are stated by the commissioner. The surety was released by Burke’s failure to retain the two-hundred-dollar reserve. (Bell v. Paul, 35 Neb., 240; Simonson v. Thori, 31 N. W. Rep. [Minn.], 861; Calvert v. London Dock Co., 2 Keen [Eng. Ch.], 638; Board of Commissioners v. Branham, 57 Fed.

<p>1. Forcible Entry and Detainer: Construction of Statute. Section 1023 of the Code ol Civil Procedure construed. The legislature designed by the enactment of this statute to provide a summary remedy by which the owner of real estate might regain possession of it from one who bad unlawfully and forcibly entered into and detained possession thereof, or one who, having lawfully entered, then unlawlully and forcibly detained possession.</p> <p>2. Justice of the Peace: Jurisdiction: Forcible Entry and Detainer: Pleading. Justices of 1he peace have original, jurisdiction of this class of cases; and it was not the intention of the legislature that the rule which requires the pleader to state the facts constituting his pause of action or defense should be applied to complaints in forcible detainer actions.</p> <p>3. Forcible Entry and Detainer: Pleading. The complaint of unlawful and forcible detention, to be good under this section, need hot aver facts which show that the defendant unlawfully and forcibly detains possession of the premises. The complaint is sufficient if it is in the language of the statute.</p> <p>4. Landlord and Tenant: Lease: Notice. A subtenant is charged with notice of the existence of the tenant’s lease and bound by its terms and conditions.</p>

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

<p>Appeal from the district court of Hall county. Heard1, below before Harrison, J.</p> <p>cited: Bradford v.. Peterson, 30 Neb., 98; Howell v. Hathaway, 28 Neb.,. 807; Scales v. Paine, 13 Neb., 521; McCormick v. Law-ton, 3 Neb., 449-; Studebaker v. McCargur, 20 Neb., 500; Webb v. Hoselton, 4 Neb., 308; Kuhns v. Bankes,- 15-Neb., 92.</p> <p>cited: Baker v. Wiswell, 17' Neb., 52; Goodman v. White, 26 Conn., 317; Ritter «l. Stevenson, 7 Cal., 388; Donahyv. Clapp, 12 Cush. [Mass.],. 440; Rogers v. Dickey, 6 111., 636; St. John v. Hall, 41 Conn., 522; Ballon v. Black, 17 Neb., 396; Dearie v.. Martin, 78 Pa. St., 55; Wendt v. Martin, 89 111., 139;.' Bradford v. Higgins, 31 Neb., 196.</p>

<p>Action by Administratrix against a Railroad Company for Negligently Causing tbe Death, of ber Husband. The evidence examined, and held to sustain the finding of the jury (1) that the proximate cause of the deceased’s death was not the negligence of the railroad company; or (2) that the proximate cause of the deceased’s death was his own negligence; and the judgment is affirmed.</p>

<p>Review: Sufficiency of Evidence. There is no question of law involved in this ease. The evidence examined, and held to support the finding of the jury; aDd the judgment of the district court pronounced thereon is affirmed.</p>

Error from the district court of Hamilton county. Tried below before Wheeler, J. The facts are stated by the commissioner. The signals required by statute to be given when a train is approaching a public street or highway is exclusively for the benefit of persons traveling along such street or highway, and about to cross the railroad at the highway crossr ing. (Clark v. Missouri P. R. Co., 11 Pac.

<p>1. Estoppel: Attachment: Pleading. An attachment having been issued against a defendant, the plaintiff claiming to have acquired a lien by virtue of a garnishment founded upon averments that the garnishee had property of the defendant in his possession, cannot be heard to insist that the defendant is without standing to move a discharge of the attachment because in fact he had no interest in the property.</p> <p>2. Chattel Mortgages: Construction: Voluntary Assignments, Instruments in the form of chattel mortgages will not he held to constitute an attempted assignment for the benefit of creditors because of the contemplated reciprocal trusts imposed on each mortgagee iu favor of the others; because the mortgages provide that they shall prorate one with another; because at the • time the mortgages were made the mortgagor was unable to redeem, conveyed all his property by the mortgages to secure debts greater than the value of the property; and because the parties contemplated that the mortgagees should take immediate possession, — nor does the fact that the mortgages contained a power of sale in accordance with the statutory provisions for foreclosure render the transaction an assignment.</p> <p>3. Voluntary Assignments: Chattel Mortgages. The act in regard to voluntary assignments refers only to assignments intended as such; that is, when a debtor undertakes to make an assignment under the statute he must make it in accordance with it, otherwise it is no assignment and is void. Butthe rules relating to the construction of mortgages and other instruments somewhat akin to assignments, but not intended as such, remain unchanged.</p>

<p>Error from the district court of Douglas county. Tried below before Scott, J.</p> <p>cited: Goodrich v. Downs, 6 Hill [N. Y.], 438; Barney v. Griffin, 2 N. Y., 365; Leitch v. Hollister, 4 N. Y., 214; Suheforth v. Lord, 25 Pac. Rep. [Cal.], 497; Brigham v. Jones, 29 Pac. Rep. [Kan.], 309; Beels v. Flynn, 28 Neb., 575; Iledman v. Anderson, 6 Neb., 399; Tallón v. Ellison, 3 Neb., 75; Montieth v. Bax, 4 Neb., 170; Cleveland Paper Co. v. Banks, 15 Neb., 20; Cadwallader v. Blair, 18 la., 420.</p>

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

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

Tried below before Norris, J. A defendant in a criminal case may avail himself of the statute of limitations under a plea of the general issue. (Bishop, Statutory Crimes, 264; 1 Starkie, Criminal Pleading & Practice [2d ed.], 339; Wharton, Criminal Pleading & Practice, 317; Maxwell, Criminal Procedure, 4; White v. State, 4 Tex. App'., 490.) cited: State v. Yates, 36 Neb., 287.

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

Error from, the district court of Lancaster county. Tried below before Strode, J. See opinion for statement of the case. In an action upon an undertaking for an attachment, a claim due from the obligee in favor of the principal may be made the subject of set-off. (Raymond v. Green, 12. Neb., 215.) The decree below was erroneous in the disposition of the claim for an attorney’s lien. (Tiffany v. Steioart, 60 I Mass., 33.) The attorneys were entitled to a lien.