Volume 45 — Nebraska Reports

Error from the district court of Antelope county.. Tried below before Allen, J. The facts appear in the opinion. The amount sued for is a penalty. In an action for damages the true measure of plaintiff’s recovery is the damage actually sustained. (Atchison & N. R. Co. v. JBaty, 6 Neb., 40; Boyer v. Barr, 8 Neb., 71; Roose v. Perkins,. 9 Neb., 315; Riewe v. McCormick, 11 Neb., 264; Boldtv..

<p>1. Negotiable Instruments: Accommodation Maker. An accommodation maker is one who executes commercial paper without consideration in order to enable the payee, or holder, to thereby obtain credit.</p> <p>2. -: -: Principal and Surety. One who executes a promissory note as surety for another is not an accommodation maker.</p> <p>-3. -: -: Admission oe Evidence. Rule applied to evidence in support of several signers claiming to be accommodation makers.</p> <p>4. -: -:--: Review. A judgment will not be reversed on account of error in the admission of evidence not prejudicial to the party complaining.</p>

Original application for mandamus to compel the auditor of public accounts to register certain bonds issued by the school district to secure the payment of indebtedness evidenced by its warrants owned by the State Bank of Pender. cited: 1 Dillon, Municipal Corporations, sec. 65; County of Scotland v. Thomas, 94 U. S., 682; County of Cass v. Gillett, 100 U. S., 585; County of Rails v. Douglas, 105 U. S,, 728; Commissioners of Jefferson County v. People; 5 Neb., 127; Lancaster…

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

Heard below before Walton, J. The facts are stated by the commissioner. A creditor is in equity entitled to the benefit of any security for the payment of a debt given by the principal debtor to the surety, although the creditor did not originally rely upon the credit of such security or even know of its existence; and-a creditor has an equitable right to be substituted to the benefit of any such security for a debt which the principal debtor has given to his surety.

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

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

<p>Original application for mandamus to compel the respondent to approve a supersedeas bond.</p>

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

Application of E. Charles Francis, intervenor, for appointment of a receiver to control mortgaged property pending appeal from á decree of foreclosure rendered by the district court of Douglas county.

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

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

<p>Error from the district court of Douglas county. Tried below before Keysor, J. .</p> <p>cited: Pullman Palace Car Co. v. Missouri P. R. Co., 115 U. S., 587.</p> <p>cited: Hutchinson, Carriers, secs. 130, 344; Furman v. Union P. R. Co., 106 N. Y., 579; Colgate v. Pennsylvania R. Co., 102 N. Y., 120; Missouri P. R. Co. v. Young, 25 Neb., 651; Ladue v. Griffith, 25 N. Y., 364; St. Louis, K. C. & N. R. Co. v. Piper, 13 Kan., 505; Mercantile Mutual Ins. Co. v. Chase, 1 E. D. Smith [N. Y.], 115; Home Ins. Co. v. Western T. Co., 51 N. Y., 93; Bulkley v. Naumkeag Steam Cotton Co., 24 How. [U. S.], 386; Claflin v. Boston & L. R. Co., 7 Allen [Mass.], 341; Devereaux v. Barclay, 2 B. & Aid. [Eng.], 704; Forbes v. Poston & L. R. Co., 133 Mass., 154; Weyand v. Atchison, T. &. S. F. R. Co., 75 Ia., 580.</p>

Error from the district court of Washington county. Tried below before Scott, J. See opinion for statement of the case. The order of confirmation is erroneous, because no copy of the appraisement was deposited with the clerk of the district court. (MoKeighan v. Hopkins, 14 Neb., 367; Jones v. Mill, 9 Neb., 254.) The failure of the appraisers to deduct and enumerate prior incumbrances made the order of confirmation erroneous.

<p>1. Appeal Bonds: Approval by Justice of the Peace. An undertaking given for the purpose of appealing a case from a-justice of the peace to the district court is approved by the justice, if he receives it, examines it, and expresses himself as “satisfied,” and retains it in his custody.</p> <p>2. Alteration of Instruments. Where a written instrument is altered by one not claiming under it, the party claiming under it may still enforce it so long as its original character is susceptible of proof.</p> <p>3. Appeal Bonds: Alteration: Liability of Sureties. Therefore, where, after an appeal undertaking had been approved by the justice, some of the sureties erased their names therefrom, this did not release them from liability, and consequently did not release their co-sureties, the obligee not knowing of or consenting to the change.</p> <p>4. -: -. The fact that the justice knew of the erasure was not material. It was beyond his power after approving the bond to deprive the obligee of his security.</p>

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

Heard below before Davis, J. The facts are stated by the commissioner. Evidence of a parol agreement by the vendees to assume payment of the mortgage is inadmissible. (Lewis v. Day, 53 Ia., 575; Remington v. Palmer, 62 N. Y., 31; Conover v. Brown, 29 N. J. Eq., 510.) The recital in the deed that the land is sold subject to a mortgage should not be made the basis of a deficiency judgment against the purchaser.

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

<p>1. Waste: Injunction. Although the rule of the common law in relation to waste has been greatly relaxed in favor of the tenant, the preventive jurisdiction of courts of equity by means of injunction is still freely exercised in favor of the reversioner against a tenant in possession, whenever the threatened acts amount to a manifest injury to the estate and a wanton abuse of the tenant’s rights.</p> <p>2. -: Bights op Life Tenant. It is not waste for a life tenant to remove timber so as to fit tbe land for pasture or cultivation, provided he does not in so doing damage or diminish the value of the inheritance, and his acts are conformable ^o the rules of good husbandry. (Wilkinson v. Wilkinson, 59 Wis., 557.)</p> <p>3. -: Injunction Against Life Tenant: Evidence. Evidence examined, and held to sustain the allegation of waste by the reversioners against the defendant, a tenant for life.</p> <p>4. Equity: Exercise of Jurisdiction: Practice. When a court of equity has acquired jurisdiction of a cause for any purpose, it may retain it for all purposes, and proceed to a determination of all of the matters put in issue by tbe pleadings. (Morrissey v. Broomal, 37 Neb., 766.)</p> <p>5. Estrepement: Injunction: Damages. Under our system, tbe reversioner in an action to stay threatened waste by a tenant for life may recover for waste previously committed, provided there be some connection between the injury done and the acts threatened.</p> <p>6. Estates: Payment of Taxes. As between a tenant for life and tbe reversioner tbe former is required to pay taxes assessed against the estate.</p> <p>7. -: Waste: Damages: Counter-Claim. Finding against the defendant on the cause of action alleged in her counterclaim held sustained by the evidence.</p>

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

Heard below before Harrison, J. The opinion contains a statement of the case. The decree canceling appellant’s mortgage should be set aside. The only lien on the mortgaged property superior to that of appellant is the claim for city and county taxes. The mortgage is not invali.d on the ground that the security is excessive. [Grimes v. Farrington, 19 Neb., 44; Smith v. Boyer, 35 Neb., 46; Hershiser v. Higman, 31 Neb., 531; Whitney v. Levon, 34 Neb., 443; First Nat.

<p>1. Beplevin: Findings: Value of Property. Where, by a special finding on sufficient evidence, there was fixed the value of replevied property upon which the mortgage of the plaintiff was operative, a judgment rendered on a general verdict limited to the same amount will not be disturbed.</p> <p>2. Trial: Special Findings: Review. A special finding will not be assumed to be in conflict with the general verdict of a jury, unless clearly so made to appear.</p> <p>3. -: -: -. A special finding, though clearly unsustained by the evidence, must be disregarded when the fact established by it is clearly irrelevant to the issues on trial.</p>

<p>Review. Findings of fact made by the district court upon conflicting evidence, on appeal will not be disturbed.</p>

<p>Error from the district court of Gage county. Tried, below before Bush, J.</p> <p>cited: Hershiser v. Delone, 24 Neb., 382; Speer v. Craig, 16 Col., 478; Tulloch v. Belleville Pump & Skein Works, 31 Pac. Rep., [Col.] 229.</p> <p>cited : Pottinger v. Garrison, 3 Neb., 223; Harral v. Gray, 10 Neb., 188; Dorrington v. Minnick, 15 Neb., 400; Buck v. Reed, 27 Neb., 67.</p>

<p>1. Surface Water: Municipal Corporations: Negligence: Damages. The Big Blue river flows south through the city of Beatrice and crosses Court street at right angles. The plaintiff’s property is situate on the north side of this street and west of the river. Mary and Scott streets are south of and parallel to Court street. Cedar street extends north and south and opens into Court street immediately south of the plaintiff’s property. A draw, having its origin in the hills some miles southwest of plaintiff’s property, meandered north and east to Cedar street, thence north to Court street, and there emptied into a ditch or drain extending down Court street to the river. This draw, in connection with the ditch in Court street, was a natural conduit through which the surface waters from rains and melting snows on-a large area of couutry found their way to the Blue river. The city of Beatrice, on the petition of the plaintiff and other property owners, graded and paved said Court street and filled up the ditch therein, thus damming the draw in front of plaintiff’s property. To carry off the waters that were accustomed to go down said draw the city built dikes across it at Scott and Mary streets and cut ditches down said streets from the draw to the river. During the heavy rains in the spring of 1892 the waters came down said draw to Court street, and being there obstructed by the filled ditch, overflowed the street and flowed on plaintiff’s premises and damaged them. She sued the city, alleging that it had negligently omitted to provide suitable outlets for the waters that were accustomed to come down said draw after having filled the ditch in Court street, and that such negligence was the proximate cause of the damage to her property. Held, (1) That the evidence sustained the finding of the jury that the plaintiff’s property was damaged by the overflowing waters which came down the draw to Court street and were unable to escape to the river by reason of the ditch in Court street being filled and the draw thereby obstructed; (2) that the overflow of the waters which damaged plaintiff’s property was brought about by the act of the city in filling the ditch in Court street and failing to provide sufficient outlets down Mary and Scott streets or elsewhere to carry the waters from the draw into the river; (3) that such negligence on the part of the city was the proximate cause of the injury sustained by the plaintiff. *</p> <p>2. -: Damages. The doctrine of this court is the rule of the common law, that surface water is a common enemy and an owner may defend his premises against it by dike or embankment; and if damages result to adjoining proprietors by reason of such defense he is not liable therefor.</p> <p>3. -: -: Negligence. But this rule is a general one and subject to another common law rule, that a proprietor must so use his own property as not to unnecessarily and negligently injure his neighbor.</p> <p>4. --: -: -. And, therefore, every proprietor may lawfully improve his property by doing what is reasonably necessary for that purpose, and unless guilty of some act of negligence in the manner of its execution, will not be answerable to an adjoining proprietor, although he may thereby cause the surface water to flow on the premises of the latter to his damage; but if in the execution of such enterprise he is guilty of negiigence, which is the natural and proximate cause of injury to his neighbor, he is accountable therefor. Lincoln & B. S. It. Co. v. Sutherland, 44 Neb., 526, and cases there cited followed.</p> <p>■5. -: -: -: Evidence. The city had the right to take such steps and perform such acts as in its judgment were necessary to protect its street from surface waters; but while it had this right, it was charged with the duty of exercising it with ordinary care. It was bound to know that this draw was the natural conduit through which the surface waters were wont to find their way to the river, and when it filled up the ditch in Court street into which this draw emptied it was charged with the duty of constructing sufficient ditches and outlets to carry the surface waters coming down the draw to the river.</p> <p><6. Municipal Corporations: Drainage: Negligence: Damages. It seems that negligence may be imputed to a municipal corporation and it may be made liable for damages resulting therefrom if its council and mayor, acting in good faith, adopt an insufficient or defective scheme or plan of drainage.</p> <p>7. -: -: -: -. The act of the city in building dikes at Scott and Mary streets, and cutting ditches along those streets to the river, were ministerial acts.</p> <p>8. -: -: -: -. Whether such ditches were properly constructed, and were of sufficient capacity for the purposes intended, were questions of fact; and whether their construction in the manner that they were constructed amounted to negligence on the part of the city was also a question of fact.</p> <p>S. Estoppel: Damages. The plaintiff by petitioning the city to grade and pave Court street did not estop herself from claiming damages as the result of the negligent omission of the city to provide suitable outlets for carrying off the water from the draw.</p> <p>Í0. Instructions. Instructions in a case should be few in number and should present to the jury the law applicable to the issues in the case in simple language and terse sentences. Numerous instructions or instructions with long and involved sentences are move likely to confuse the jury and lead it astray than to enlighten it and direct it to the material points of the case.</p>

<p>1. Municipal Corporations: Powers: Electric Ligiitinu System. The power conferred upon cities of the second class having over 5,000 inhabitants, to provide for and regulate the lighting of the streets, implies the power to erect and maintain an electric lighting system for that purpose.</p> <p>2. -:-: -. From the power to provide for and regulate the lighting of streets, however, no power can be implied to erect or maintain a lighting system for the purpose of supplying light to private buildings.</p> <p>3. -: -: - — . The latter power is conferred on such cities by Session Laws of 1889, chapter 19.</p> <p>4. -: -: -: Appropriations. That act, in providing for the levy of a tax and the issuing of bonds for erecting and maintaining a lighting system, provides how money must be raised for the purpose when it is not already available; but where a city already has in its general fund sufficient unapproprinted funds, it may appropriate and use those funds for the purpose of erecting a lighting system.</p> <p>-5. -: -: -: -. A city of the second class having more than 5,000 inhabitants may make special appropriations for improvements at other times in other ordinances than the. annual appropriation bill, provided such appropriations first receive the sanction of a majority of the electors either by petition or at an election.</p>

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

Error from the district- court of Richardson county.. Tried below before Babcock, J. Failure to publish the notice required by sections 130' and 131, chapter 16, Compiled Statutes, is a fatal defect; without such notice there can be no valid incorporation;, it is a condition precedent to the creation of a valid corporation. (lleinig v. Adams & Westlake Mfg. Co., 81 Ky., 3C0; Kaiser v. Lawrence Savings Bank, 56 Ia., 104; Clegg v. Hamilton, 15 N. W. Rep. [Ia.], 865; Fisfeldv.

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

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

<p>Chattel Mortgages: Ownership: Review: Sufficiency of Evidence. This appeal involves only questions of fact, and, upon careful consideration of all the evidence, the judgment appealed from is found fully sustained by the proofs.</p>

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

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

<p>1. Religious Societies: Regularity of Ecclesiastical Proceedings: Courts: Review. Courts -which have no ecclesiastical jurisdiction will neither review nor revise the proceedings or judgments of church tribunals where therein are involved only questions of church discipline. Following Pounder v. Ash, 44 Neb., 672.</p> <p>2. -: -: -: -. There exists no power in courts of equity to supply lacking remedies for the regulation of the affairs of a church organization within itself. As a voluntary association it alone has the power, and, if necessary, must itself provide means for the adjustment of all matters with respect to its internal polity which do not affect the rights of the citizen or the j urisdiction of the state.</p>

<p>Contracts: Refusal to Convey Land: Damages. Where one accepts of a conveyance of real property upon the express condition that it is to be by him conveyed to another, his willful refusal to so convey renders him liable for such damages as shall thereby be caused to the party entitled to receive conveyance, either by expenses of litigation rendered necessary, or from the loss of an opportunity to sell such lands at a good price while conveyance is wrongfully withheld.</p>

<p>1. Corporations: Officers: Use of Name as Trustee. Where the president of a loan company consented that securities in the nature of trust deeds should be made to himself, described as trustee, he thereby gained no right to use such designation to the injury of the company of which he was president and which was in fact the beneficiary named or contemplated in such trust deeds.</p> <p>2. Equity Jurisdiction. One who submits to the determination of a court of equity his claim of a right to employ the designation of himself as trustee to the disadvantage of the beneficiary, and prays the judicial recognition and enforcement of such right, has no cause to complain if such court having taken jurisdiction of the subject-matter for said purpose administers complete relief as between all the parties to such litigation.</p> <p>3. Loan Companies: Corporate Officers: Use of Name as Trustee. The facts in this case stated, and held to justify the decree entered in the district court.</p>

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

<p>Sch.ools and School Districts: Erection of Building: Appropriation of Funds: Authority of Directors. Certain sections of chapter 79, Compiled Statutes, 1893, entitled “Schools,” construed, and held, (1) that the electors of a school district, and they alone, at their regular annual meeting, or at a special meeting called for such purpose, have power to direct the building of a school house; (2) that the district hoard of a school district has no power or authority of law to appropriate the funds of a school district to the erection of a school house, unless first authorized so to do by a vote of the electors of such school district; (3) that when a school, district owns a school house site and has the money in its treasury sufficient to build a school house, which money was raised for that purpose, the electors of such school district, at any regular annual meeting, or at a special meeting called for that purpose, may direct the building of a school house on the school site, and that such school building be paid for out of the funds on hand for that purpose; (4) that the electors at such meeting may designate the school hoard to act as the agent of the district to superintend the construction of such school house; (5) that if no one is designated by the electors of the school district to superintend the construction of a school building directed to he built, then the school board of such district has authority to make contracts and superintend the erection of the school building ordered; (6) that the electors of a school district are not obliged to select the members of the school hoard as agents to superintend the construction of a building ordered to he built, hut may select such person or persons as, in their judgment, will best subserve the interests of the school district.</p>

<p>Appeal from the district court of Saline county-Heard below before Hastings, J.</p> <p>cited: Hager v. Peed, 11 O. St., 626; American Savings Bank v. Harrington, 34 Neb., 597.</p> <p>cited: Stewart v. Lispenardt 26 Wend. [N. Y.], 255; Blanchard v. Nestle, 3 Den. [N. Y.], 37; Staples v. Wellington, 58 Me., 453; Wamsley v. Crook, 3 Neb., 350; Ransom v. Schmela, 13 Neb., 77; Magenau v. Bell, 13 Neb., 248; Housel v. Cremer, 13-Neb., 300; Kimball v. Kimball, 16 Mich., 211; Grand!' Gulf Railroad & Banking Co. v. Bryan, 8 S. & M. [Miss.], 275; Kelton v. Hill, 59 Me., 259; Hollister v. Young, 41 Vt., 160.</p>

Error from the district court of Buffalo county. Tried below before Hamer, J. The facts are stated by the commissioner. The exception clauses relied upon are not only valid but commendable. They are enforceable under the general principle of the law of contracts. (2 Parsons, Contracts, 494*, 500*, 505*; Robertson v. French, 4 East [Eng], 135; Universal Life Ins.

<p>1. Review: Issues Below: Defective Record. The action of the district court in refusing to strike out the pleadings in a cause appealed from a justice of the peace, because presenting issues not made before the justice, cannot be reviewed unless the record discloses what issues were presented before the justice.</p> <p>2. Pleading: Pledges: Evidence. Suit was brought upon a note by the pledgee thereof. The defendant pleaded that the debt for which the note was pledged had been paid. Held, That, under this answer, evidence that the pledgee had taken other security and agreed to release the note was inadmissible.</p> <p>3. Negotiable Instruments: Payment: Principal and Agent. Payment of money on a note at a bank where it is made payable, when the note has not been left there and is not produced, is not a payment of the note. In such case the person receiving the money becomes the agent of the payor, not of the payee.</p> <p>4. -: -. Evidence examined, and held insufficient to sustain the verdict.</p>

Tried below before Wheeler, J. The opinion contains a statement of the case. The greatest latitude should be permitted in examining jurors to ascertain whether they are biased or prejudiced. The accused should not only be permitted to ask the jurors the direct question as to whether or not they have such bias or prejudice, but should be permitted to ask them any question from which the inference of bias or prejudice may be drawn. (Monaghan v. Agricultural Fire Ins.

Motion by plaintiff to vacate a bond given to supersede confirmation of sale and deficiency judgment rendered by the district court of Douglas county, and to quash the bill of exceptions. The case was heard below before Ambrose, J.

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

Err’or from the district court of Madison county. Tried below before Jackson, J. The facts are stated in the opinion. An agent who receives money for his principal is liable as principal, so long as he stands in his original situation, and until there has been a change of circumstances by his having paid over the money to his principal, or done something equivalent to it.

<p>1. Conflicting Evidence: Review. A verdict will not be set aside by a reviewing court as being against the evidence where upon a material issue in the case the evidence is conflicting.</p> <p>2. Trial: Admission on Testimony. Error cannot be predicated upon the exclusion of a certain line of testimony, where the same is subsequently received.</p> <p>3. Partnership: Contracts. Where one partner, during the existence of the partnership, entered into a contract with another within the scope of the partnership business, the firm will be bound thereby.</p>

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

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

Objection by defendant in error to jurisdiction of supreme court on the ground that there was no legal service of summons in error.

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

Original action in the nature of quo warranto, on the relation of the attorney general, to determine which of the respondents is entitled to hold the office of superintendent of the hospital for the insane at Lincoln. The facts are stated in the opinion. The power exercised by the governor in hearing charges against respondent Hay and in removing him from office was administrative and not judicial.

<p>1. Practice: Actions in Rem: Notice of Cross-Bill. Where, under our practice, the defendants to an action in rem are required to disclose their interests in the subject of the controversy, notice of a cross-bill is to be regarded as a proceeding in the cause designed to assist in the prosecution thereof, and accordingly interlocutory in character.</p> <p>2. Jurisdiction: Validity of Decree. In such case a decree based upon a cross-bill filed by a single defendant after answer day, his co-defendants having made no appearance, is irregular merely, and not void for want of jurisdiction.</p> <p>3. notice of Cross-Bill. Arnold, v. Badger Lumber Co., 36 Neb., 841, distinguished.</p>

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

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

<p>Intoxicating Liquors: Saloon-Keeper’s Bond: Construction: Liability on Sureties: Evidence. Statements in the conditions of the bonds of retail liquor dealers, which were as follows: “Now, if the above bounden shall not,during the continuance of said license, keep a disorderly house, * * * and shall pay all damages, fines, and forfeitures that may be adjudged against said '‘ * *, under the provisions of chapter 61 of the General Statutes of the state of Nebraska passed at the sixteenth legislative assembly, and approved February 28, 1887, then, in such ease, the above obligation to he void, otherwise in full force and effect,” — held, to refer to chapter 61 of the Laws of Nebraska, 1881, as arranged and published by the secretary of state as authorized by law, and as the chapter designated contained the liquor law, the statements in the bonds sufficiently referring to the liquor law and its provisions, the bonds were valid, and it was error to exclude them from the evidence ' in a case on the ground that the liquor license act, or law, was not described or referred to in the conditions of the bonds.</p>

<p>Mortgage Foreclosure: Confirmation op Sale: Review. In an error proceeding to secure a review of an order of confirmation of a sale of real estate, made by virtue of an order of sale issued to enforce a decree of foreclosure of a mortgage, where an examination of the record and evidence presented and considered on the hearing of the motion to confirm the sale, discloses that the conclusion reached by the trial judge was fully sustained by such record and evidence, the order of confirmation will be affirmed.</p>

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

<p>1. Corporations: Ownership of Dividends. Dividends declared by a corporation upon shares of its stock belong to the parties in whose names the shares of stock are registered in the books of the corporation at the time the dividends are declared, but such dividends may be made the subject of a valid contract, in like manner and to the same extent as other personal property.</p> <p>2. Tort-Feasors: Damages. One who interferes with personal property not his own, at the instance and request or by the authority of another who is not the owner of the property or authorized to act, is a wrong-doer and, as such, liable to the owner of the property for his wrongful act.</p> <p>3. Corporations: Ownership of Dividends: Evidence. The admitted, coupled with the undisputed facts, in this case fully warranted the trial court in directing the jury to return a verdict for plaintiff for the amount claimed.</p>

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

Error from the district court of Douglas county. Tried below before Davis, J. cited, as to the right to recover attorneys’ fees: Miles v. Edwards, 6 Mont., 180; 1 Sutherland, Damages, p. 141; High, Injunctions, secs. 973, 974; Ah Thaiev.QuanWan, 3 Cal., 216; State v. Wakeley, 28 Neb., 437. cited: High, Injunctions, secs. 1685, 1692; Hicks v. Michael, 15 Cal., 107; Winkler v. Roeder, 23 Neb., 709; Atkins v. Gladioish, 25 Neb., 390; Oelrichs v. Spain, 15 Wall. [U. S.], 211.

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

<p>1. Trial to Court: Admission or Incompetent Testimony. In a cause tried to the court without the intervention of a jury the admission of incompetent evidence is not reversible error. Following Whipple v. Fowler, 41 Neb., 675.</p> <p>2. Sufficiency of Evidence: Review. The findings of fact of the district court which are supported by sufficient evidence will not be disturbed in error proceedings upon the assignment that the judgment is against the weight of the evidence.</p>

<p>1. Lien, of Judgment. The lien of a judgment does not exceed the actual interest the judgment debtor had in the land at the time a transcript of such judgment rendered by a justice of the peace was filed in the office of the clerk of the district court of the proper county, and such judgment lien is subject to every equity at that time existing against the judgment debtor.</p> <p>2. -: Mortgages. . Where land intended to be included in a. mortgage is omitted by mistake, and a transcript of a judgment against the mortgagor is subsequently filed in the office of the clerk of the district court of the proper county, the lien of the judgment creditor is subject to the equity of the mortgage.</p>

<p>1. Mortgage Foreclosure: Supplemental Petition: Failure to Notify Defendant: Effect of Decree: Evidence. In a suit to foreclose a mortgage the owner of the equity of redemption was personally served and answered in the time fixed by statute, traversing the material allegations of the petition. After such answer day, by leave of court, but without notice to said defendant, the plaintiff filed a supplemental petition to recover moneys which he alleged he had paid out to insure the mortgaged property subsequent to the bringing of the suit. Heldr (1) The court erred in permitting the supplemental petition to he filed without notice thereof to the defendant; (2) the defendant, having answered, was bound to take notice of any reply to such answer which the plaintiff might make, but he was not compelled to take notice of the supplemental petition filed in the case ; (3) the defendant had a right to presume that the court would render no other or different decree in favor of the plaintiff than that prayed for by him in his original petition; (4) that because the defendant had answered the petition of the plaintiff within the time required by law, it would not be presumed that he had actual knowledge of the filing of the supplemental petition; (5) that the plaintiff, by filing the supplemental petition, in effect brought another suit against the mortgaged property and all the parties to the original action; and the defendant, without notice of the filing of such supplemental petition, in the absence of some act of his by which he waived such notice, was no more concluded by the decree rendered thereon than he would have been by a decree rendered in favor of the plaintiff on his original petition without the notice or service of summons ; (6) the evidence examined and found insufficient to support the finding and decree of the district court in favor of the plaintiff on the cause of action set out in his supplemental petition.</p> <p>2. -: Notice of Defendant’s Cross-Bill. To such suit a number of persons were made co-defendants with said owner, hut not served with process. After the answer day of such owner the co-defendants filed answers claiming liens upon the mortgaged property. No notice of the filing of these answers was given the owner either before or after they were filed. Held, (1) That though the Code abrogated the old chancery practice requiring defendants claiming affirmative relief to file cross-bills and serve notice thereof on parties to be affected thereby, it did not abolish the principle that a party is entitled to notice of judicial proceedings instituted against him or his property; (2) that the answers of the co-defendants were in effect suits against the owner of the mortgaged property, and he was not charged with notice of the filing of such answers, because he had been served with process and answered the petition of the plaintiff within the time required by law.</p> <p>3. Parties: Pleading: Notice of Cross-Bills. A party made defendant to an action and duly served with process, is charged with notice of whatever answer any of his co-defendants may file in the action only when such answer is filed by such co-defendant within the time required by law. Arnold v. Badger Lumber Co., 36 Neb., 841, and cases there cited followed and reaffirmed.</p> <p>4. Contracts: Kate of Interest. The mortgage bond made the subject of said suit drew interest at six per cent per annum from date until maturity, and ten per cent per annum after maturity. Held, That a decree based on said bond drawing interest at seven per cent per annum was not one of which the mortgagor could complain.</p> <p>5. Negotiable Instruments: Kate of Interest. Where a note provides for a lawful rate of interest from date until maturity and a higher and lawful rate of interest afterwards, the rate of interest which the note draws from its date to maturity is the contract rate for that time; and the rate which the note draws after maturity is the contract rate from that date within the meaning of section 3, chapter 44, Compiled Statutes, 1893. First point of the syllabus'in Biehardson v. Campbell, 34 Neb., 181, overruled.</p> <p>■6. Contracts: Judgments: Kate of Interest. Said section 3 construed and held, (1) that where parties to a contract for the payment of money have not agreed upon any rate of interest or agreed upon a rate less than seven per cent, the judgment based on such contract draws interest at the rate of seven per cent per annum from the date of its rendition; (2) that where the parties to a contract for the payment of money have agreed upon a rate of interest lawful, greater than seven per cent, the judgment based on such contract will draw the contract rate of interest.</p>

Error from the district court of Buffalo county. Tried below before Holcomb, J. The facts are stated by the commissioner. The petition does not state a cause of action. (Hurst Detroit City R. Co., 84 Mich., 539; Perry v. Georgia Railroad & Ranking Co., 11 S. E. Rep. [Ga.], 605; Smith East and West R. Co., 10 S. E. Rep. [Ga.], 602; Pennsylvania R. Co. v. Lilly, 73 Ind., 254; Gilligan v. New Yorh & IT.

<p>Error from tlie district court of Hitchcock county. Tried below before Welty, J.</p> <p>cited: Taylor v. Coon, 48 N. W. Rep. [Wis.], 123; Qi'egory v. Hartley, 6 Neb., 356; Holmes v. First Nat. Bank of Lincoln, 38 Neb., 326; Bradford v. Prescott, 85 Me., 483; Sturtevant v. Randall, 53 Me., 149; Smith v. Morrill, 54 Me., 48; Patten v. Pearson, 57 Me., 428; Jones v. Childs, 8 Nev., 124; Wright v. Whiting, 40 Barb. [N. Y.], 240; Bellom v. Freeborn, 63 N. Y., 388; Furnas v. Furgin, 119 Mass., 500; Hall v. Nash, 10 Mich., 304.</p> <p>cited: Pale v. Gear, 9 Am. Rep. [Conn.], 353; Charles v. Denis, 24 Am. Rep. [Wis.], 383; Doolittle v. Ferry, 27 Am. Rep. [Kan.], 166; Weller v. Eames, 2 Am. Rep. [Minn.], 150; Churchill v. Hunt, 3 Den. [N. Y.], 321; Valentine v. Wheeler, 23 Am. Rep. [Mass.], 404.</p>

<p>1. Trial to Court: Waiver of Right to Jury Trial: Review. Where the record in a civil case shows that a legal action was tried to the court without a j ury and the record discloses no protest or objection thereto on the part of a litigant, and no application by him for a jury to try the issues, this court will presume that a jury was waived.</p> <p>2. Record for Review. In reviewing cases in this court the transcript filed here is the sole, conclusive, and unimpeachable evidence of the proceedings in the district court. (Chadron Banking Go. v. Mahoney, 43 Neb., 214.)</p> <p>3. Alteration of Instruments: Evidence: Review. Action of replevin for property covered by a chattel mortgage, brought by an indorsee before maturity of the note which the mortgage was given to secure. Defense, the note had been materially altered after its execution and delivery without the knowledge or consent of the maker. Evidence examined, and held to support the finding of the court in favor of the maker of the note.</p>

Error from the district court of Lancaster county.. Tried below before Hall, J. See opinion for statement of the case.

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

Error from the district court of Dawes county. Tried below before Kinkaid, J. The facts are stated by the commissioner. By holding the premises over the period of the lease,, the defendant became a tenant from year to year.

<p>1. Negligence: Personal Injuries: Pleading. In an action to recover damages for personal injuries, alleged to be caused by the negligence of another, it is not necessary for the plaintiff, in Ms petition, to plead the particular precautions he took to avoid injury.</p> <p>2. -: Instructions. In such an action, where the court correctly instructs the jury as to what constitutes negligence and contributory negligence, it is not, in general, erroneous to refuse instructions directing the attention of the jury to special facts in the case, as demanding greater care than usual.</p> <p>3. Damages for Personal Injuries. Evidence examined, and held to sustain the verdict.</p>

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

Tried below before Welty, J, The facts appear in the statement of the commissioner. The dating back of a promissory note does not render the transaction usurious. (Banks v. Antwerp, 15 How. Pr. [N. Y.], 29; Muir v. Newark Savings Institution, 16 N. J. Eq., 537; Powell v. Jones, 44 Barb. [N. Y.], 521; Bevier v. Coveil, 87 N. Y., 50.)

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

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

Tried below before Norris, J. The opinion contains a statement of the case. The charge of the court was erroneous in authorizing a conviction for assault and battery without defining that offense.

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

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

Error from the district court of Douglas county. Tried, below before Doane, J. The facts are stated in the opinion. cited: Barrett v. Southern P. B. Co., 27 Pac» Rep. [Cal.], 666; Pensó v. McCormick, 25 N. E. Rep» [Ind.], 156; Grogan v. Schiele, 53 Conn., 186; Toomey v. Sanborn, 146 Mass., 28; City of Indianapolis v. Emmelman, 108 Ind., 530; Khron v. Brock, 144 Mass., 516; Gulf, C. & S. F. R. Co. v. Styron, 66 Tex., 421; Powers v. Harlow, 53 Mich., 507; Beck v. Carter, 68 N.…

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

Error from the district court of Madison county. Tried below before Allen, J. See opinion for statement of the case. The plaintiff in error claims the title to the potatoes never passed from him, and that the delivery was inadvertent on his part, made with the expectation that payment would be made in cash on delivery; that when a sale as made for cash the delivery and payment of the consideration are both necessary to pass title.

Error from the district court of Saunders county. Tried below before Wheeler, J. The opinion contains a statement of the case. The motion to strike out certain portions of the petition should have been sustained.

<p>1. Gambling Places: Public Nuisances. A place kept for gambling purposes is a public nuisance.</p> <p>2. Public Nuisances: Right of Private Person to Injunction. A public nuisance, criminal in its nature, will be enjoined at the instance of a private party only upon a showing of some special injury suffered by him aside from that suffered in common with the remainder of the public.</p> <p>3. -: -: Judgment for Defendant. The evidence examined, and held to sustain the conclusions of the trial court.</p>

<p>Trial: Rulings on Evidence: Review. Error cannot be predicated upon the refusal of the district court to permit a witness to answer a certain question, when there was made no offer of proofs which would be elicited if the desired answer was permitted to be made.</p>

<p>1. Pleading: Waiver oe Material Allegation. The want of a material allegation in a petition maybe waived by a failure to challenge attention to it in the district court.</p> <p>2. Conflicting Evidence: Review. Findings of fact upon conflicting evidence will not be disturbed on appeal unless manifestly unsustained by the evidence.</p>

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

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

Heard below before Neville, J. The facts are stated by the commissioner. The appellants contend that the appellee, not being a surety or guarantor of the defendant Winters, nor having any junior lien upon the premises of any kind to protect, and not being under any obligation, moral or legal, to pay the notes and mortgages executed by Winters to Moore, was a stranger. (Suppiger v. Garrels, 20 Ill. App., 625; JEtna IAfe Ins.

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

Error from the district court of Holt county. Tried below before Bartow, J. See opinion for statement of the case. The church failed to keep its interest in the building insured as required by the contract, and the sureties are released. ( Watts v. Shultleworth, 5 Hurl. & N. [Eng.], 235, 7 Hurl. & N. [Eng.], 353.) Where a party has undertaken to do a thing, he is not excused from liability by the occurrence of events which render the performance of his promise impossible.

<p>Municipal Corporations: Drainage for Private Property. The law does not impose upon a municipal corporation the duty of providing drainage for private property within its limits to prevent an inundation thereof caused by the owner of another lot obstructing a water-course by filling his own lot to conform with the established grade of a street.</p>

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

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

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

<p>1. Towns and Villages: Extension of Boundaries. The boundaries of a town or village may, under the provisions of' section 99, chapter 14, Compiled Statutes, be extended so as to-include adjacent lands, provided said territory is in such close proximity to the platted portion as to have some unity of interest therewith iuthe maintenanceof municipal government. (State-v. Dimond, 44 Neb., 154.)</p> <p>2. -: Annexation of Territory: Evidence. Evidence examined, and held to sustain the judgment of the district court, annexing certain adjacent lots and subdivisions of land to a city of the second class.</p>

<p>1. Contracts: • Agreements for Benefit of Third Persons : Actions. As to the points decided in this ease on a former hearing in this court, opinion reported in the 32 Neb., 259, the conclusion and rule therein announced are at this time followed and adhered to.</p> <p>2. Trial. A ruling of the trial court excluding certain evidence examined, and held not erroneous.</p> <p>3. Sufficiency of Evidence. Evidence held sufficient to sustain the verdict.</p>

Error from the district court of Adams county. Tried below before Beall, J. The facts are stated by the commissioner. We contend that under the evidence and the findings of the jury the plaintiff below was not entitled to recover anything.

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

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

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

<p>1. Mechanics’ Liens: Sufficiency of Evidence to Show Contract. Where the testimony is uncontradicted, it is sufficient to show that the owner of the real property to he improved contracted with the claimants of a mechanic’s lien for the work subsequently done, through a person in the employ of such claimants.</p> <p>2. Trial: Admission of Incompetent Evidence: Review. The admission of evidence which, though not competent, is immaterial affords no grounds for the reversal of a decree in equity.</p>

<p>Error from the district court of Douglas county. Tried below before Irvine, «T.</p> <p>cited : Wilson v. Wilson, 30 O. St., 365; Milroy v. Spur Mountain Iron Mining Co., 43 Mich., 231; Buchanan v. Dorsey, 11 Neb., 373; Trimble v. Strother, 25 O. St., 378 ; Judson v. Gray, 17 How. Pr. [N. Y.j, 289 ; Auburn City Bank v. Leonard,, 40 Barb. [N. Y.j, 119; Brewer v. Maurer, 38 O. St., 543; Wood v. Moriariy, 14 Atl. Rep. [R. I.], 855; Domain v. Judson, 26 N. E. Rep. rind.1, 563; Parmalee v. Wiqqenhorn, 6 Neb., 322.</p>

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

<p>1. Judgments: Procedure to Vacate: Laches. After the close of the term in which a judgment was rendered against him, a judgment defendant filed a petition in equity to vacate the same on the ground that it was irregularly obtained. The irregularity complained of was that the clerk of the court omitted to journalize the judgment immediately upon its rendition. It appears from the evidence that the failure of the judgment defendant to file a motion to set aside the judgment rendered against him during the term at which it was rendered was not caused by the failure of the clerk to journalize the judgment when rendered, but resulted from the laches of the judgment defendant’s counsel. Held. That he could not be permitted to-deny the correctness of the judgment or to renew the controversy.</p> <p>2. Judgment Entry. Whether the neglect or failure of the clerk of a district court to journalize a judgment immediately upon its-rendition is an irregularity within the meaning of subdivision 3 of section 602 of the Code of Civil Procedure, not decided.</p>

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

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

<p>Sales: Merchandise: Time to Deliver: Acceptance: Evidence: Replevin. A merchant ordered some rubber goods from a wholesale house, but the goods were not shipped when ordered. The merchant was called away from home, and before leaving instructed his clerk, whom he left in charge of his business, not to receive the rubber goods if they should come as they had not been shipped in a reasonable time after they were ordered. While the merchant was absent the rubber gmds arrived, and the clerk paid the freight on them and stored them not unpacked in a warehouse belonging to the merchant. A day or two after the merchant returned home he sold his entire stock of merchandise, without an inventory thereof, and delivered possession of it to one G-. At the time of this sale the merchant was not aware that the rubber goods had arrived. The wholesale merchant brought replevin for the rubber goods against the merchant’s vendee. The jury found a verdict in favor of the wholesale merchant. Held, (1) That the evidence sustained the finding; (2) that the sole question was whether the rubber goods had been accepted by the merchant, and the title to said goods vested in him prior to the time he made,the sale of his stock of merchandise to Gr.; (3) that the test was whether, if the wholesale merchant had sued the merchant for the price of the rubber goods, the evidence would sustain a finding in favor of the merchant; (4) that it was the duty of the wholesale merchant to deliver the quality and quantity of goods ordered, and to deliver them within a reasonable time, and the wholesale merchant not having done this the merchant had a right to decline to receive the goods; (5) whether, under all the facts and circumstances in evidence in the case, the merchant did i accept the goods and become liable for their payment to the wholesale merchant, was a question for the jury, and properly submitted by the instructions of the court.</p>

<p>1. Covenant Against Incumbrances: Action foe Breach: Jurisdiction of Justice of the Peace. Ia July, 1882, one Campbell sold and conveyed to one McClure certain real estate by general warranty deed. The deed contained a covenant that the real estate conveyed was free of incumbrances. At the time of the conveyance taxes had been assessed against the real estate for the year, but such taxes were not then due. Campbell neglected to pay these taxes after their maturity and McClure, to prevent the sale of the real estate, paid the taxes and sued Campbell before a justice of the peace to recover the amount so paid. Held, (1) That the covenant against incumbrances was a personal obligation, did not run with the land, and was broken at the time the conveyance was made (Chapman v. Kimball, 7 Neb., 399, followed); (2) that the suit was not an action on a contract for real estate within the meaning of section 907 of the Code of Civil Procedure, nor was the action one in which the title to real estate was sought to be recovered or could be drawn in question; and that a justice of the peace had jurisdiction of the case.</p> <p>2. Taxes: Liability of Vendor for Payment. A vendor who sells real estate after the first day of April in any year, in the absence of a contract to the contrary, is, under the statute, liable forthe taxes on such real estate for that year. (McClure v. Campbell, 25 Neb., 57.)</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 Ferguson, J.</p>

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

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

<p>1. Trial: Procedure: Review. Considerable discretion is vested in the trial judge in controlling and managing the routine proceedings at the trial, and this applies to the opening statements of counsel as well as to other incidents of the trial. The discretion must he a reasonable one, and it is only where there has been a clear abuse of discretion that the error will he corrected by a reviewing court.</p> <p>2. -: Misconduct of Attorney: Ground of Reversal. Where the defendant’s attorney, in his opening statement to the jury, with the permission of the court, and against the objection of the plaintiff, rehearses matters wholly foreign to the issues in the case, and which are calculated to excite the prejudices of the jury, it will furnish good cause for reversing a verdict and judgment rendered for the defendant.</p> <p>3. Hearsay Evidence: Review. B.eld, That the admission of certain testimony referred to in the opinion was reversible error.</p>

<p>Damages: Violation of Promise to Purchase Notes. Where one promises that he will, at a certain price, purchase certain notes, if the person to whom such promise is made shall procure the title to said notes by an exchange therefor of other property, and by such promise causes the proposed exchange to be made, he is bound by hie promise, and is liable for payment of such damages as by the violation of said promise he has caused to the promisee.</p>

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

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

<p>Pleading: Amendment During Trial. The giving of leave to make an amendment of a petition in the course of a trial, when such amendment does not substantially change the nat ire of the plaintiff’s claim, is within the discretion of the district judge.</p>

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

<p>1. Waters: Canal Embankments: Negligence: Damages: Evidence. A farmer sued a canal company for damages for the destruction of his crops, alleging that the canal company had failed to properly keep and maintain its canal embankments in good repair, by reason of which a large quantity of water ran over the banks of said canal on the farmer’s crops. The evidence showed that the farmer’s lands had never been overflowed prior to the construction of the canal; that after its construction his lands were overflowed in 1888,1889, 1890, and 1891; that a part of the embankment of the canal was washed away; that in the year 1891 farmers in the vicinity “ cultivated the canal embankments, which lowered them so that the water would flow over more readily.” Held, That the jury was justified in inferring from this evidence that the canal company had been guilty of negligence in the manner of maintaining the embankments of its canal.</p> <p>2. Negligence: Evidence. A verdict for negligence may be supported by inference when the inference is the logical, probable, and reasonable deduction from proved or conceded facts. {Kilpatrick v. Richardson, 40 Neb., 478.)</p>

<p>1. Action Against Receiver Without Leave of Court: Voluntary Appearance: Waiver: Jurisdiction. ' D. & F., copartners, guarantied in -writing the payment of a debt secured by a real estate mortgage. Litigation ensued between them, and a receiver was appointed to take charge of the copartnership property. The holder of the mortgage brought suit to foreclose the same, making D. & F. and their receiver parties defendant without leave of the court which appointed the receiver. D. & F. and the receiver entered their voluntary appearance to the foreclosure suit. The receiver filed an answer in the nature of a cross-petition setting up a second 'mortgage belonging to D. & F., on the premises in controversy, and was by the decree of the court awarded a foreclosure of such mortgage. The property was duly sold, and after applying the proceeds of the sale to the satisfaction of the decree there still remained a considerable sum due thereon. The holder of the first mortgage then filed a motion for a personal judgment against D. & F. and their receiver for the balance due on his decree. This motion was resisted on the ground that the receiver had been sued without leave of the court which appointed him, and that therefore the court in which the mortgage foreclosure suit was pending had no jurisdiction over him. Held, (1) That the general rule is that a receiver may not be sued without leave of the court which appointed him; (2) but if this rule is applicable to such a case as the one at bar, then the fact that a receiver has been sued without leave is a matter of defense for him in the action where sue'd; (3) that the suing a receiver without permission does not render invalid the process of the court served on him nor prevent the jurisdiction of the court in which he is sued from attaching to his person; (4) that a judgment pronounced against a receiver so sued is not absolutely void for want of jurisdiction; (5) that the receiver having voluntarily entered his appearance in the action, and having asked the court for and obtained affirmative relief, must be presumed to have submitted himself to the jurisdiction of the court and to have waived the defense of being sued without leave of the court which appointed him.</p> <p>2. Mortgages: Deficiency Judgments. The district courts of this state in suits brought therein for the foreclosure of mortgages, on the coming in of the report of sale of the mortgaged premises, are authorized to render a personal judgment and award execution for any deficiency remaining unpaid on the decree. (Sec. 847, Code of Civil Procedure.)</p> <p>3. Courts of Equity: Jurisdiction. When a court of equity acquires jurisdiction over a case for any purpose it may retain the cause for all purposes and proceed to a final determination of all the matters at issue in the case. Morrissey v. Broomal, 37 Neb., 766, followed.</p> <p>4. Guarantor of Note: Liability. One who before maturity unconditionally guaranties the payment of a promissory note becomes absolutely liable upon the default of the maker; and the neglect of the holder of such note to sue the maker does not discharge such guarantor, although the maker becomes insolvent during the time the holder neglects to sue. Huff v, Slife, 25 Neb., 448, followed.</p>

<p>1. Municipal Corporations: Bonds: Registration: Duty or State Auditor: Injunction: Interest Coupons: Taxes. Municipal bonds bearing date November 1,1889, due in twenty-years, drawing interest at the rate of six per cent per annum payable semi-annually, evidenced by coupons maturing May 1, 1890, and each six months thereafter, issued to aid in the construction of a railroad, were deposited with the auditor of public accounts on the 21st of December, 1889, for certification and registration. The auditor was prevented by injunction proceedings from registering and certifying the bonds until January 1,1891, at which time they were registered and certified. Held, (1) That as a matter of law thq bonds were registered and certified on December 21, 1889; (2) as taxes levied in counties under township organization become due on the 1st day of October after their levy (secs. 83, 91, ch. 77, Compiled Statutes, 1893), (3) therefore, the auditor, when he registered said bonds, should have detached therefrom the coupons thereon which by their terms matured prior to October 1,1890. (Sec. 37, ch. 9, Compiled Statutes, 1893.)</p> <p>2. -: -: Taxes. Said section 37 construed, ondheld that the object of its enactment was to prevent the municipalities of the state from executing and putting upon the market their obligations for the payment of money which would by their terms mature before a tax could be legally levied and become due for the payment of the same.</p> <p>3. -: -. It is settled law that a municipal corporation has no power to issue its bonds in aid of a work of internal improvement unless expressly authorized by statute to do so. Young v. Clarendon Township, 132 U. S., 340, followed.</p> <p>4. -: -: Taxes. The municipal corporation had authority to issue the bonds in question, but it bad no authority to issue and deliver interest coupons which would mature before a tax could be lawfully levied and become due for their payment.</p> <p>5. -: -: Validity or Coupons. That the coupons attached to said bonds which matured prior to October 1, 1890, were issued without authority of law, and were void even in the hands of an innocent purchaser.</p>

Error from the district court of Lancaster county. Tried below before Hall, J. The facts are stated by the commissioner. A delivery by a seller to a common carrier of property billed to the proper destination, but consigned to the seller’s order is not a delivery or tender of delivery to the purchaser.

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

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

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

<p>1. Instructions. An instruction is erroneous which requires a jury to base its verdict on a matter which forms only a portion of the evidence bearing on the principal issue, and disregards, the determination of that issue itself.</p> <p>2. -. Such error is not cured by other instructions stating the issue correctly.</p>

<p>1. Municipal Corporations: Damages: Presentation of Claim: Time: Validity of Requirement. The provision of section 34, article 2, chapter 14, Compiled Statutes, that in order to maintain an action against a city of the second class having more than 5,000 inhabitants, for injury or damage to person or property, the party complaining must file a statement in the office of the city clerk, within six months from the date of the injury, giving the circumstances of such injury and other information, is a reasonable exercise of legislative power, and the filing of such a statement is a condition precedent to maintaining an action for such injury, and compliance therewith must be alleged and proved. City of Lincoln v. Grant, 38 Neb., 369, followed.</p> <p>2. Res Adjudieata: Review. An appellate court, on a second appeal of a case, will not ordinarily re-examine questions of law presented by the first appeal, but where the case was on the first appeal remanded generally for a new trial and the same questions are presented on the second trial, the appellate court is not bound to follow opinions on questions of law presented on the first appeal and may re-examine and reverse its rulings on such questions, and should do so when the opinion first expressed is manifestly incorrect.</p> <p>3. -: -. Siatt v. Broolcs, 17 Neb., 33, modified.</p> <p>4. Action Against Cities: Limitations : Disability , of Plaintiff. Where a statute requires a certain thing to be done within a time specified, as a condition precedent to maintaining an action, the disability of the plaintiff during a portion of the period allowed will not extend the time of performance, provided a reasonable time remain within the period after the disability is removed.</p>

Error from tbe district court of Lincoln county. Tried below before Neville, J. The opinion contains a statement of the case. The record was insufficient to show a judgment. (Gapen v. Bretternitz, 31 Neb., 304; Miller v. Burlington & M. B. B. Co., 7 Neb., 227.) In cases before inferior courts the record must show that the court had jurisdiction.

<p>Error from the district court of Douglas county. Tried below before Ferguson, J.</p> <p>cited: Mayberry v. 'Willoughby, 5 Neb., 368; Hacloley v. Patricio, 3 Johns. [N. Y.], 537; Hurley v. Estes, 6 Neb., 386; Allen v. Miller, 11 O. St., 374; Cobbey v. Wright, 29 Neb., 274; Dunn v. Haines, 17 Neb., 560; Hower v. Aullman, 27 Neb., 251 • State v. School District, 30 Neb., 520; State v. King, 34 Neb., 196; Wanzer v. Eright, 52 Ill., 35; In re Robinson, 29 Neb., 137; Franlclin v. Morris, 26 Atl. Rep. [Pa.], 364.</p>

<p>1. Pleading: Amendments. The allowing of a petition to be amended so as to change the form of the action is permissible where the identity of the cause of action is preserved.</p> <p>2. -: -: Ejectment: Contracts. Plaintiff brought an action in ejectment, and the defendant pleaded a contract entered into by plaintiff for the sale of the premises and demanded affirmative equitable relief. The plaintiff was permitted to file an amended pleading, changing the form of the action from ejectment to that of foreclosure of the contract. Held, Not reversible error.</p> <p>3. -: -. In a proper case the court may permit a pleading to be amended to conform to the proof.</p> <p>4. Killings on Evidence: Review: Assignments of Error. This court will not review the rulings of the trial court on the admission of testimony unless the particular rulings are pointed out in the petition in error.</p> <p>5. Trial to Court: Admission of Incompetent Testimony: Review. In a cause tried without a jury the admission of incompetent or irrelevant testimony is not reversible error.</p> <p>6. Conflicting Evidence: Review. The finding of the trial court, based on sufficient evidence, will not he disturbed on appeal, unless manifestly wrong.</p> <p>7. Estoppel: Pleading: Maxims. The facts constituting an estoppel in pais must be pleaded.</p>

Original action in the nature of quo warranto, on the relation of the attorney general, to determine the rights of rival claimants to the offices of fire and police commissioners of the city of Omaha. The facts are stated in the opinion. The act of 1895, chapter 10, Session Laws, is void because the section of the act it purports to amend and repeal did not exist, and it therefore has nothing to rest on.

Tried below before Scott, J. The opinion contains a statement of the case. Comment upon past proceedings is not contempt. (Storey •v. People, 79 Ill., 45; Cheadle v. State, 11 N. E. Rep. [Ind.], 426; 16 Am. & Eng. Ency. Law, 495.) The language was not per se libelous. (13 Am. & Eng. Ency.

<p>Original application for writ of habeas corpus. Prisoner discharged.</p>

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

<p>Trusts: Actions to Enforce. A party who had furnished means to pay for an interest in real property purchased for certain parties contributing thereto and of which, for convenience, the title had been taken in the name of one investor for the benefit of all contributors, is entitled to maintain an equitable action for the enforcement of the trust which, by reason of the foregoing facts, had arisen in his favor against said associate holding title.</p>

Error from the district court of Seward county. Tried, below before Bates, J. A failing bank has the right both to borrow money and to give security for the payment thereof, and may also secure creditors for antecedent debts if done in good faith. ■(Hershiser v. Higrnan, 31 Neb., 534; Davis v. Scott, 22 Neb., 154; Bierbower v. Polk, 17 Neb., 278; Ward v. Par-bin, 30 Neb., 376; Brown v. Williams, 34 Neb., 376; Kavanaugh v. Oberfelder, 37 Neb., 647.) A stockholder who has a…

<p>Errok from the district court of Douglas county. Tried below before Kbysor, J.</p> <p>cited; Canclee v. Pennsylvania P. Co., 21 Wis., 587; Illinois Central R. Co. v. Copeland, 24 Ill., 332; Cray v. Jackson, 51 N. H., 9; Morse v. Brainerd, 41 Yt., 550; Root v. Great Western R. Co., 45 N. Y., 524; Atchison, T. & 8. P. R. Co. v. Roach, 35 Kan., 740; Hill Mfg. Co. v. Boston & L. R. Co., 104 Mass., 122; Ohio & M. R. Co. v. McCarthy, 96 U. S., 258; Peel v. Chicago & N. W. R. Co., 19 Wis., 119; Ogdensburg & L. C. R. Co. v. Pratt, 22 Wall. [U. S.], 123; Texas & P. R. Co. v. Fort, 9 Am. & Eng. R. Cases [Tex.], 392; Texas & P. R. Co. v. Ferguson, 9 Am. & Eng. R. Cases [Tex.], 395; Louisville, N. A. & G. R. Co. v. Nicholai, 30 N. E. Rep. [Ind.], 424; Beard v. 8t. Louis, A. & T. H. R. Co., 79 Ia., 528; Evansville & C. R. Co. v. Androscoggin, 89 U. S., 594.</p> <p>cited: 2 Beach, Railways, sec. 906; Kessler v. New York C. & H. R. R. Co., 61 N. Y., 538; Montgomery & E. R. Co. v. Culver, 75 Ala., 587; Michigan C. R. Co. v. Mineral Springs Mfg. Co., 16 Wall. [U. S.], 318; Croft v. Baltimore & O. R. Co., 1 McA. [D. C.], 492; Kerrigan v. Southern P. R. Co., 81 Cal., 248; Myrick v. Michigan C. R. Co., 107 U. S., 107.</p>

<p>Usury. The facts in this case are substantially the same as those in Upton v. O'Donahue, 32 Neb., 565, and Pierce v. Davey, 43 Neb., 45. On,the authority of those cases the decree of the district court in this action is affirmed.</p>

<p>1. Sales: Warranty. To constitute a warranty it is not necessary that the word “warranty” should be used. It is sufficient if the language used by the vendor amounts to an undertaking or an assertion on his part that the thing sold is as represented. Pat-rich v. Leach, 8 Neb., 530, and Little v. Woodworth, 8 Neb., 281, followed.</p> <p>2. -: -: Evidence: Question for Jury. Whether statements made by a vendor as to the condition or quality of property offered for sale were intended by him to be warranties of the condition or quality of such property, or whether by such statements the vendor intended merely to give his opinion as to the condition or quality of such property, are questions of fact for a jury. Halliday v. Briggs, 15 Neb., 219, followed.</p> <p>3. Estoppel: Sales: Warranty. If a vendor of property knows that representations made by him as to the soundness or condition of the property sold are regarded by his vendee as warranties on the part of the vendor and believed in, relied, and acted .npon as such by the vendee, then the vendor is estopped from asserting that such representations were not warranties.</p>

Error from the district court of Cedar county. Tried below before Norris, J. The facts are stated in the opinion. The title to mortgaged chattels is vested in the mortgagee. He is therefore entitled to recover as a general owner. The petition states a cause of action. (Adams v. Nebraska City Nat. Bank, 4 Neb., 370; Marseilles Mfg.

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

<p>1. Judgment Under Invalid Statute: Validity: Constitutional Law: Jurisdiction. Where a court proceeds in an action according to the provisions of a statute which is unconstitutional, its judgment is not void but at most erroneous, provided its jurisdiction of the action does not depend upon the statute, but exists independently thereof.</p> <p>2. Exemption: Homestead. Lands acquired under the federal homestead law are forever exempt from liability for the debts of the patentee created before the issuing of the patent, and this although the patentee convey the lands and afterwards re-acquire the title.</p>

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

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

Heard below before Welty, J. There is a statement of the case in the opinion, As to title to the water rights and character of the stream the following authorities are cited: Illinois C. R. Co. v. People, 146 U. S., 387; Jones v. Soulard, 24 How. [U. S.], 41; Smith v. (My of Rochester, 92 N. Y., 463; Chenango Bridge Co. v. Paige, 83 N. Y., 178; Avery v. Fox, 1 Abb. [U. S.], 246; The “Montello,” 20 Wall. [ü. S.], 430. The mill is a public nuisance and subject to abatement.

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

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

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

<p>1. Pleading: Election as to Counts: Practice. Error cannot be predicated on tbe refusal of a district court to compel the plaintiff to elect on -which one of two causes of action set out in his petition he will proceed to trial when the two causes of action are identical. The remedy of a defendant in such a case is to move the court to strike out one of the causes of action as surplusage.</p> <p>2. Sales: Bona Fide Purchasers. One who purchases personal property from a conditional vendee, contractee, or lessee in possession thereof, with actual knowledge of the conditions on which his vendor holds possession of such property, is notan innocent purchaser thereof and acquires only such title as his vendor had.</p>

<p>Validity of Tax Deeds. The provision of section 127 of the revenue law, for the execution of tax deeds under the hand and official seal of the county treasurer, being mandatory, it follows that there is under existing laws no authority for a valid conveyance by said officer of lands sold for delinquent taxes. (Larson v. Dielcey, 39 Neb., 465.)</p>

Error from the district court of Douglas county. Tried, below before Davis, J. The facts are stated by the commissioner. The transaction should be governed by the law of Nebraska. Plaintiff in error is not liable, for the reason she did not contract with reference to her separate estate. (Gillespie v. Smith, 20 Neb., 455; Barnum v. Young, 10 Neb., 309; Stale Savings Bank of St. Joseph v. Scott, 10 Neb., 84; Davis v. First Nat.

Tried below before Sullivan, J. The facts are stated in the opinion. The accused was entitled to the benefit of the provision of the act passed in 1893, fixing the punishment for murder in the first degree at death or imprisonment for life, at the discretion of the jury. (State Constitution, sec. 24, art. 3; 15 Am. & Eng. Ency. Law, 712; Brown v. Williams, 34 Neb., 376; Bishop, Written Law, sec. 110a.) Murder cannot be committed until the injured person dies.

<p>1. Pleading: Demurrer. A demurrer searches the entire record, |> and judgment should go against the party whose pleading was first defective in substance. Sower v. Aultman, 27 Neb., 251, and Oakley v. Valley County, 40 Neb., 900, followed.</p> <p>3. Contempt Proceedings: Affidavits: Jurisdiction. In a proceeding to punish for an alleged contempt, not committed in the presence of the court, the affidavit upon which the proceeding is based is jurisdictional, and it must affirmatively disclose sufficient facts to show that the case is one over which the court has jurisdiction.</p> <p>3. -: Willful Disobedience of Order. Unless the disobedience of an order of court is willful there is no contempt.</p> <p>4. Order to Pay Money on Judgment: Disobedience: Contempt. A defendant in a civil action who has failed to comply with an order of court directing the payment by him of a certain sum of money to apply on a judgment recovered therein against him is not liable to punishment as for a contempt in refusing to comply with such order where such disobedience was not willful, but was solely on account of his being insolvent and wholly unable to pay the amount in the order required.</p>

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

Heard below before Sinclair, J. The opinion contains a statement of the case. The irrigation law of 1889 is unconstitutional in so far as it attempts to confer authority to condemn lands for right of way for canals. The act contains more than one subject.