Volume 46 — Nebraska Reports

<p>Error from the district court of Johnson county. Tried below before Babcock, J.</p> <p>Welch v. Boston & B. B. Corp., 14 R. I., 609; Phillips v. Village of Kalamazoo, 53 Mich., 33; Labar v. Crane, 49 Mich., 561; Olson v. Neal, 63 Ia., 214; Johns-tone v. Sutton, 1 T. R. [Eng.], 544; Ash v. Marlow, 26 O., 119.</p> <p>Cooley, Torts [2d ed.], 214; Griffis v. Sellars, 31 Am. Dec. [N. Car.], 422; Womack v. Circle, 32 Graft. [Va.], 324; Payson v. Caswell, 22 Me., 212; Severance v. Judkins, 73 Me., 376; Turner v. O’Brien, 5 Neb., 543; Wertheim v. Altschuler, 12 Neb., 594; Palmer v. Keith, 16 Neb., 93; Painter v. Ives, 4 Neb., 126; Bodwell v. Osgood, 3 Pick. [Mass.], 379; Marshall v. Betner, 17 Ala., 832; Sweet v. Negus, 30 Mich., 406.</p>

<p>1. Death by Wrongful Act: Pecuniary Injury: Pleading. A petition under chapter 21, Compiled Statutes, for the death of ■ the plaintiff’s intestate by the wrongful act of the defendant is fatally defective, which fails to show that the person or persons for whose benefit the action is brought have sustained pecuniary injury by the death of the deceased.</p> <p>■2, -: -: -. Nor will the petition in the absence of such allegation support a judgment for nominal damages. [Burst v. Detroit City B. Co., 84 Mich., 539.)</p> <p>3. -: -: -. Anderson v. Chicago, B.n& Q. B. Co., 35 Neb., 95, distinguished.</p> <p>4. Seview. The court will not review a judgment1 of the district court upon allegations of error where the successful party is clearly entitled to judgment on the pleadings.</p>

<p>1. Contempt: Nature or Proceedings. Proceedings in contempt are criminal in their nature, and the rules of strict construction applicable to criminal proceedings are to govern therein.</p> <p>2. -: Appeal Bond: Injunction. An appeal bond in an action for inj unction which omits a material condition prescribed by law is insufficient and will not operate to supersede a decree of the district court dissolving an order of injunction and continue the order in force during the pendency of the appeal to this court.</p> <p>3. -: Sufficiency of Complaint. The complaint or information in this case examined, and held insufficient to sustain the conviction and sentence of plaintiff in error.</p>

<p>1. Contempt: Nature of Proceedings. A proceeding against a party for contempt in this state is in the nature of a criminal prosecution and governed by the rules of construction and practice applicable thereto.</p> <p>2. -: Review of Proceedings. A judgment for contempt may be reviewed on error in tbe supreme court in the same manner as criminal cases.</p> <p>3. -: -. In order to secure a review of errors committed during a trial in proceedings for contempt such errors must first be submitted to the court wherein such proceedings were had by a motion for new trial.</p> <p>4. -: Defects in Information: Practice. Formal defects in an information and warrant or order of arrest must be taken advantage of by objections made in the proper manner before going to trial, otherwise they will be deemed waived.</p> <p>5. -: Disobedience of Order of Injunction. The proceedings in this case examined, and held fully within the jurisdiction of the trial court as conferred upon it by section 260, Code of Civil Procedure.</p>

<p>1. ’ Contribution: Principal and Surety: Payment by Renewal oe Note. If a note signed by a principal and two or more sureties is discharged hy the execution and delivery of a new note executed hy the principal and one of the sureties, and the surety is forced to pay the last note, this does not entitle him to, and he cannot, compel his co-surety or co-sureties on the first note to contribute. The execution and delivery of the second note was not a payment of the first note by the surety alone. It but effected a change in the form of contract.</p> <p>2. -: -: -. A promissory note to be executed for the purpose of discharging a prior note signed by a principal and two sureties was presented by the principal maker to one of the sureties for his signature, it then bearing the signatures of the principal and other surety on the prior note. Held, In the absence of any agreement or understanding with’ his co-surety on the prior note in regard to his signing the second note as surety, he had the right to refuse to sign the second note, or he could sign it in such manner as to limit or modify his liability and make it other than that of a surety, and, if he did so sign it, the surety, being compelled to pay it, could not exact contribution from him.</p> <p>3. negotiable Instruments: Principal and Surety. The opinion in the case of Slump v. Richardson County Banh, 24 Neb., 522, examined and distinguished.</p>

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

<p>1. Review: Stipulation Filed Below After Judgment. A stipulation of the facts filed in the district court after its judgment has been rendered cannot he considered upon proceedings for the review of such judgment in the supreme court.</p> <p>2. ---: Record. Where the questions presented in error proceedings are dependent upon the existence of certain facts there can he no review of such questions in the absence of a showing that any evidence was introduced upon the trial in the district court.</p>

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

<p>Error from the district court of Polk county. Tried below before Bates, J.</p> <p>Dixon County v. Barnes, 13 Neb., 294; Brown v. Otoe County, 6 Neb., 111; Bowers v. Bice, 19 Neb., 578; Lamb v. Briggs, 22 Neb., 144.</p> <p>State .v. Silver, 9 Neb., 85; State v. Ream, 16 Neb., 681; Palo Alto County v. Burlingame, 32 N. W. Rep. [Ia.], 259; Board of County Commissioners v. Sheehan, 43 N. W. Rep. [Minn.], 690; Chicago, B. & Q. R. Co. v. Bernard, 32 Neb., 306; Thompson v. Pioneer Press Co., 33 N. W. Rep. [Minn.], 861; Bowers v. Rice, 19 Neb., 578; McNamara v. Gabon, 21 Neb., 590; Black v. Gabon, 24 Neb., 248; Marsh v. Snyder, 14 Neb., 8; Lewis v. Watrus, 7 Neb., 477 ; Crowell v. Johnson, 2 Neb., 156; Wausau Boom Co. v. Plumer, 5 N. W. Rep. [Wis.], 54.</p>

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

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

<p>1. Supreme Court: Jurisdiction. The supreme court is one of' limited jurisdiction, both original and appellate. Its original jurisdiction is prescribed and limited by the constitution, and its appellate jurisdiction is prescribed and limited by statute.</p> <p>2. Final Order: Setting Aside Verdict: Review. An order of the district court setting aside the verdict of a jury and granting a new trial during the term at which the verdict is returned, and before judgment, is not a final order, and therefore not reviewable by a proceeding in error. (Artman v. West Point Mfg. Co., 16 Neb., 572.)</p> <p>3. Creditors’ Bill: Validity op Judgment: Pleading. The foundation of every creditors’ bill is an unimpeachable judgment, and the plaintiff who exhibits such bill as a condition precedent to his right to relief is required to plead and prove his ownership of a valid and unsatisfied judgment.</p> <p>4. Judgments: Collateral Attack: Appeal: Supreme Court: Estoppel. Johnson sued ■ Parrotte for damages in a district court. The jury returned a verdict in favor of Johnson, and . Parrotte filed a motion for a new trial. Pending the ruling of the district court on this motion the parties eniered into a stipulation, as follows: “That if the court shall grant a new trial herein, that the said plaintiff may review said order granting a new trial by petition in error to the supreme court; and that if said supreme court shall confirm said order granting a new trial, that judgment absolute shall be rendered against the plaintiff, dismissing said action with costs; but if said supreme court reverse said order, then judgment absolute shall be rendered against the defendant for amount of verdict and costs herein.” The district court sustained Parrotte’s motion for a néw trial. Johnson then prosecuted a petition in error to the supreme court, which reversed the order of the district court and, in pursuance of said stipulation, rendered a personal j udgment in favor of Johnson and against Parrotte for the amount found by the jury. This judgment Johnson subsequently made the basis of a creditors’ bill in the district court and obtained a decree canceling, as fraudulent, the conveyance of certain real estate made by Parrotte and subjecting such real estate to the payment of said judgment. On appeal of Parrotte from this decree, held, (1) that it was not enough that this court rendered the judgment after reversing the order made by the district court; that such order of the district court must have been a final order to invest this court with jurisdiction to review it; (2) that the order of the district court sustaining Parrotte’s motion for a new trial was not a final order within the meaning of section 581, Code of Civil Procedure; (3) that the supreme court had no original jurisdiction and acquired no appellate jurisdiction of the suit of Johnson v. Parrotte, and therefore its judgment was void; (4) that Parrotte, neither by reason of having been a party to the stipulation aforesaid, nor by reason of having had in the district court and in the supreme court a suit in equity for a new trial of the original action had estopped himself from assailing this judgment as void; (5) that a void judgment is in reality no judgment at all. It is a mere nullity. It is supported by no presumptions and may be impeached in any action direct or collateral. (1 Black, Judgments, sec. 170.)</p>

<p>1. Rape: Evidence. While in a prosecution for rape, or an assault with intent to commit rape, the state may only inquire of the prosecutrix whether she made complaint of the injury, and when and to whom, but not as to the particular facts which she stated, still the defense, in cross-examination, may inquire as to such particular facts.</p> <p>2. -: -: Review: Unfounded Assignments of Error. In a prosecution for an assault upon a girl under the statutory age of consent, with intent to commit a rape, whether the girl consented or resisted is immaterial, and to constitute the offense it is, therefore, unnecessary to prove that the defendant intended to use force if necessary, to overcome her resistance.</p>

Error from the district court of Dodge county. Tried below before Marshall, J. The case is stated by the commissioner. The act under consideration is void because the title contains more than one subject.

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

Original application for mandamus to compel the governor to approve the bond of relator as treasurer of the board of trustees of the institution for the blind at Nebraska City. State v. Bacon, 6 Neb., 286; Curtis v. Allen, 43 Neb., 184; State v. Plambech, 36 Neb., 401; Beck v. Jackson, 43 Mo., 117; Cooley, Constitutional Limitations, 184; Pleuler v. State, 11 Neb., 547; State v. Smith, 35 Neb., 24; People v. Morgan, 90 Ill., 558; Wilcox v. People,'90 Ill., 186.

<p>Accounting: Decree for Plaintiff: Report of Referee. Evidence examined, and held to support the findings of the referee. His report is confirmed and a decree entered in this court in compliance therewith.</p>

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

Error from the district court of Dodge county. Tried below before Marshall, J. The opinion contains a statement of the case. The sheriff is liable for the use of excessive force or violence whether inflicted wantonly or otherwise. {Krug v. Ward, 77 Ill., 603; Blythe v. Tompkins, 2 Abb. Pr. [N. Y.], 468; Parsons v. Harper, 16 Gratt. [Ya.], 64; Fox-hall v. Barnett, 22 Eng.

<p>Contracts: School Lands: Appraisement. The decision in State v. McPeaJc, 31 Neb., 139, followed.</p>

<p>1. Appeal: Final Order. An appeal cannot be prosecuted from the district court to this court until after a final judgment or final order has been entered in the action.</p> <p>2. Final Order: Temporary Injunction: Appeal. An order continuing in force during the pleasure of the court a temporary injunction theretofore issued is not final, and is, therefore, not appealable.</p> <p>3. -: Appeal. Horn v. Queen, 5 Neb., 472, distinguished.</p>

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

Tried ' below before Sullivan, J. Plaintiff in error, standing in loco parentis, had the right to reasonably chastise the child to enforce her authority. (Snowden v. State, 12 Tex. App., 105; Gormon v. State, 42 Tex., 221; Dowlen v. State, 14 Tex. App., 61; 1 Am. & Eng. Ency.

<p>1. Contempt: Review of Proceedings. Presumptions and'intendments will not be indulged in order to sustain convictions for contempt of court.</p> <p>2. -: -: Evidence. To sustain a conviction for contempt it should appear that the language or conduct imputed to the accused is contemptuous per se, or, if it may be contemptuous or innocent according to the circumstances of the case, it should appear from the record to have been employed in its culpable sense.</p> <p>3. Attorneys: Appearance Before Judge: Contempt. It is the right of an attorney at law to refuse a retainer which would require his appearance before a particular judge. And a candid statement to the court or judge, in respectful language, of the reasons for such a course will not of itself sustain a conviction on the charge of contempt.</p>

Exceptions to rulings of the district court for Richardson county. Tried below before Babcock, J. The case was filed in the supreme court under the provisions of section 515 of the Criminal Code.

<p>1. Justice of tlie Peace: Jurisdiction: Offenses. The jurisdiction of justices of the peace is by section 18, article 6, of the constitution limited to offenses for which the penalty prescribed does not exceed three months’ imprisonment in the county jail, or a fine not exceeding §5100.</p> <p>2. -: -. . The only authority of a justice of the peace under section 17, Criminal Code, previous to the amendment thereof in 1893, was that of an examining magistrate.</p> <p>3. Appeal: Jurisdiction or ' Trial Court. Where the trial court is without jurisdiction of the subject-matter of an action, the appellate court will not acquire jurisdiction thereof by ap«</p>

Tried below before Tibbets, J. The facts are stated in the opinion. The information does not state an offense under the law. [Gee Wo v. State, 36 Neb., 241.) The verdict of the jury and judgment of the court are not sustained by the evidence. (People v. Phippin, 37 N. W. Rep. [Mich.], 888.) The act under which the information was filed is unconstitutional.

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

<p>1. Incorporation of Failing Partnership: Liability oe Corporation for Partnership Debts. Where a partnership engaged in a general mercantile business, in straitened and failing circumstances, incorporated, and the assets and business of the partnership were transferred or assigned to the corporation and appropriated to its objects and purposes, the business of the partnership being continued by the corporation, the corporation was presumptively liable for the partnership debts.</p> <p>2. Corporations: Ratification of Acts of Agents or Officers. The acts of an agent or officer of a corporation which he was not authorized to perform may be ratified by it. The approval may be by express action or indirectly. It may be proved by evidence of a direct recognition or acceptance of the act or an acquiescence, or may be an inference from the facts and circumstances shown.</p> <p>3. Fraudulent Conveyances: Sale of Goods: Grounds of Attachment. Statements by a debtor engaged in a general mercantile business disclosing a determination to defeat the claim of a creditor, and arrangements made in pursuance of such intention, combined with the further facts that the stock of goods has, during several months, been as rapidly as possible converted into cash by sales, and depleted in the aggregate several thousand dollars and no satisfactory account given of the disposition of moneys derived from the sales, may be sufficient to sustain an attachment on the stock of goods on the grounds of a fraudulent disposal or concealment of property.</p>

Tried below before Chapman, J. The facts are stated by the commissioner. The following cases are cited in support of the assignment that the court erred in overruling the motion for a change of venue: Richmond v. State, 16 Neb., 391; State v. Grafton, 56 N. W. Rep. [Ia.], 257. The court should have compelled the county attorney to elect whether he would prosecute for prize-fighting or murder.

<p>1. Sheriffs: Conversion: Embezzlement. A sheriff is an officer elected to an office of public trust in this state, and for the conversion to his own use of any moneys that shall come into his hands by virtue of his office may be prosecuted for embezzlement under section 121 of the Criminal Code.</p> <p>2. -: -: -: Information. Where a sheriff by virtue of an order of sale issued upon a decree of foreclosure had sold the lands therein described and collected the amount of the bid of the purchaser, which, before an order of the court directing to whom it should be paid out had been made, he had converted to his own use, it was not essential in an information against such officer to allege to whom such money belonged, and an allegation of that kind should be rejected as surplusage when the information independently of such allegation fully stated the facts above indicated.</p>

Error from the district court of Douglas county. Tried, below before Irvine, J. The facts are stated in the opinion. The water company has the right and power to make and' enforce the regulation providing for a charge for shutting off and turning on water, provided it is a reasonable rule and free from the charge of unlawful discrimination. (Dartmouth College v. Woodward, 4 Wheat. [U. S.], 518; Girard Life Ins. Co. v. City of Philadelphia, 88 Pa.

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

<p>"-«-w X. UUUUJ.UWW1 *1 uv.v xv vvuguu VV» AVTiOU V/H C1AL/JL in this court the judgment of a district court, no motion for a new trial having been filed, this court will look into the record to ascertain if the pleadings state a cause of action or defense and support the judgment or decree rendered; but this court will not go back of the verdict rendered by the jury or the findings of fact made by the trial court to review anything done or any proceeding had.</p> <p>2. Laborers’ Liens: Separate Contracts: Evidence. Where labor is performed for a contractor on an improvement on real estate at two different periods of time, and more than sixty days intervene between the last labor day of the first period and the first labor day of the second period, the presumption is that such labor was performed under two different contracts. Buchanan v. Selden, 43 Neb., 559, followed.</p> <p>3. -: -: Claim por Lien: Time to Pile. In such ease, ■to entitle the laborer to a lien under the statute (Compiled Statutes, 1895, sec. 3667) for the labor performed during such first period of time, he must file in the office of the register of deeds a sworn statement of the labor performed and the amount due him therefor from the contractor within sixty days of the last day on which he labored during such first period of time.</p> <p>4. Mechanics’ Liens: Separate Contracts: Tacking. The mechanics’ lien law will not be so construed as to enable a laborer to tack one contract to another and procure a lien for all the labor performed under two or more contracts by filing in the office of the register of deeds a sworn statement of the labor performed and the amount due him therefor within sixty days of the date of performing the last labor performed in pursuance of the last contract. Central Loan & Trust Go. v. O’Sullivan, 44 Neb., 834, followed.</p>

Error from the district court of Webster county. Tried below before Gaslin, J. See opinion for statement of the case. Municipal corporations have the power to enter into contracts by committees on behalf of the proper officers. {Hitchcock v. Galveston, 96 U. S., 348.) Municipal corporations may ratify unauthorized expenditures which they deem beneficial, and such ratification is equivalent to previous authority.

<p>1. Action to Quiet Title: Judgment eor Dependant. Evidence held sufficient to sustain the finding of the trial court.</p> <p>2. -: Adverse Possession: Evidence. Occupancy of land by permission of and subservient to tbe true owner will not establish a title by adverse possession.</p>

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

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

<p>1. Admission of Evidence: Estoppel. A party who asks his adversary to offer in evidence a written instrument of doubtful competency cannot be heard to urge in this court, when the instrument was immediately offered, that it should have been excluded as incompetent.</p> <p>2. Sales: Contract for Measurement of Property: Evidence of Weiq-ht. Where hay was sold with the understanding that 420 cubic feet were to be computed as a ton, evidence to show that the actual weight of such a volume of hay was less than a ton was properly excluded.</p> <p>S. Instructions. Certain rulings of the court in giving and refusing instructions presenting no legal questions of general interest examined, and held not erroneous.</p>

<p>1. Arrest and Detention of Felons: Homicide: Duty of Sheriff. A sheriff or other police officer, in arresting or preventing the escape of a felon, may use such force as is reasonably necessary, even to the taking of life; but if the felon can be taken, or his escape prevented, without killing the offender, and he be slain, the officer is guilty of at least manslaughter.</p> <p>2. -: -: Evidence. Held, That a conviction of manslaughter is sustained by the evidence.</p>

<p>' l. Negligence: Death Caused by Falling Wall: Evidence of Severity of Storm. In an action for negligently permitting a brick wall to remain unsupported, in consequence of which it fell upon and killed the plaintiff’s intestate, the defense alleged being that the falling of said wall was occasioned by a wind storm of such unusual force and severity as to be denominated as the act of God, held not error to permit the introduction by the defendant of evidence tending to prove that there had been since the date in question (two years, three months, and twenty-three days) no storm of equal severity.</p> <p>2. -: -: --. Evidence examined, and held to sustain the judgment of the district court.</p> <p>3. Measure of Damages: Instructions: Review. This court will not consider objections by the plaintiff below to instructions relating to the measure of damage where he has failed to recover on the cause of action alleged.</p>

Error from the district court of York county. Tried below before Wheeler, J. See opinion for statement of the case. The contracts and orders were in writing and should control. They cannot be contradicted by oral testimony. (Zucker v. Karpeles, 50 N. W. Rep. [Mich.], 373; Strange v. Wilson, 17 Mich., 341; Clark v. Tennant, 5 Neb., 549; Western Ins.

Tried, below before Kinkaid, J. The case is stated by the commissioner.

<p>Error from the district court of Saunders county. Tried below before Marshall, J.</p> <p>Hunter v. Silvers, 15 Ill., 174; Sutherland v. Goodnow, 108 Ill., 528; Thiebaud v. First Nat. Bank, 42 Ind., 212; Bradford v. Patten, 108 Mass., 153; Barnett v. Feary, 101 Ind., 95; Eichorn v. Peterson, 16 Ill. App., 601; Reed v. Campbell, 4 Atl. Rep. [N. J.], 433; Elevator Co. v. Brown, 36 O. St., 660; Blumenberg v. Myres, 91 Am. Dec. [Cal.], 560; Crommelin v. Thiess, 70 Am. Dec. [Ala.], 499; Schuyler v. Smith, 51 N. Y., 309.</p>

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

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

<p>1. Statutes: Construction. Special provisions of a statute in re- . gard to a particular subject control general provisions.</p> <p>2. Administration of Estates: Distribution: Appeal. Under section 304, chapter 23, Compiled Statutes, the right to appeal from a final order of distribution made by a county court in the settlement of au estate of a deceased person is limited to “any person aggrieved.” In order to enable a party to appeal in such case he must have been injuriously affected by the order or decree.</p> <p>3. Executors and Administrators: Distribution: Appeal. The executor of an estate, as such, cannot prosecute an appeal from a final order of distribution made by the county court, where he is not pecuniarily affected by such order.</p> <p>4. County Courts: Settlement op Estates: Review. A county court has power to so far open up the settlement of a former account of an executor as to correct any error or mistake therein, except as to items in dispute which have been previously heard and determined by the court.</p> <p>5. -: -: -. An executor may appeal from an adverse decision of the county court upon his petition to correct an error or mistake in the settlement of his former account.</p> <p>6. -: -: Wills. The county court may order the distribution of the personal estate remaining in the hands of an executor after the payment of all debts and charges of administration, though an action brought against him by an heir and devisee is pending in the district court for a construction of a clause in the will relating alone to the disposition of certain real estate, where it appears that the opinion and decision of the court as to the meaning and legal-effect of said provision, when obtained, would not assist the executor in the discharge of the duties of his trust.</p>

Rehearing of case reported in 34 Neb., 284. By permitting the defendant’s grantor, the Chicago, Kansas & Nebraska Railway Company, to enter upon the land and fully construct and operate its road thereon without objection or protest, knowing all the time just what was being done, the plaintiff is estopped to maintain ejectment.

<p>1. Criminal Law: Forgery: Uttering Forged Notes: Information: Sentence. Where a verdict of guilty is responsive separately to each of two counts of an information, which counts together charge hut one crime, such a verdict should, in entering judgment upon it, be treated as though both elements of the crime had been embraced in a single count.</p> <p>2. -: Error in Entering Judgment: Review: Practice . Where there is found no error in the record, except an irregularity in entering judgment upon the verdict, a cause will be remanded to the district court with instructions to enter judgment on the verdict in the manner prescribed by law. Following Dodge v. People, 4 Neb., 220.</p>

<p>1. Embezzlement: Evidence: .Conversion: Principal and Agent. That the relation of debtor and creditor exists between a principal and his agent, and that on balancing the account the agent would be found indebted to his principal, are not alone sufficient to sustain a verdict finding the agent guilty of embezzling or converting to his own use the property of his principal.</p> <p>2. -. The terms “shall embezzle” and “convert to his own use,” found in section 121 of the Criminal Code, are synonymous; but embezzlement is the fraudulent appropriation by an agent of the property of another.</p> <p>3. -: Evidence: Conversion: Intent. To sustain the conviction of an agent for embezzling or converting to his own use the property of his principal, the facts must warrant the conclusion that such conversion was made by the agent with a felonious intent.</p>

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

<p>Sheriff's and Deputy Sheriffs: Fees: Counties: Pleading. Section 42, chapter 28, Compiled Statutes, in relation to compensation of certain county officers and their deputies, construed, and held, (1) to provide that in counties having over 25,000 inhabitants there shall be one deputy sheriff whose salary shall be $900 per year, and that there may be additional deputies in such counties, but only when found necessary by the county board, and in such case the county board shall fix the number, the time of employment and compensation of such additional deputies, not to exceed $700 per year; (2) that the principal is not liable absolutely for the payment of his deputies’ salaries. Such salaries are to be paid out of the fees earned and collected.</p>

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

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

<p>1. Insolvent Partnership: Rights of Creditors and Partners: Distribution of Assets. The order for a rehearing in this ease was as follows: “Rehearing allowed on the following question: Is this case, in view of the pleadings and the evidence, one calling for the application of the rule whereby partnership assets are to be applied to tbe payment of partnership debts in preference to debts of an individual partner?” Upon a reexamination of the case the conclusion of tbe opinion rendered at tbe former bearing in relation to tbe question for consideration on rehearing, approved and adhered to. (For opinion see Perhins v. Butler County, 44 Neb., 110.)</p> <p>2. -: -: -. Tbe points decided at the first bearing of tbe case having been then set forth in the syllabus of tbe opinion, they need not and will not be restated here.</p>

<p>1. Appeal and Error: Election as to Remedy: Waiver of Appeal. A ease will not be considered in this court as both au appeal and a proceeding in error. A party must elect which remedy be will pursue, and having filed a petition in error, must be presumed to have selected that remedy.</p> <p>2. Pleading: Amendments. The amended petition in this case does not state a new and different canse of action from that set forth in the original petition, and objections to it on that ground were properly overruled by the trial court.</p> <p>3. Fraudulent Conveyances: Action for Cancellation: Equity. This action, as disclosed by the pleadings, was to set aside an alleged fraudulent transfer of property and reach and appropriate to the payment of judgments against the debtor his moneys or property claimed to have been concealed, and was equitable in its nature and triable by the court without the intervention of a jury.</p> <p>4. -: -: Proceedings in Aid of .Execution. The right to such an equitable action existed prior to the enactment of the statute providing for proceedings in aid of execution, and still exists. The statutory remedy did not supersede or destroy it.</p> <p>5. -: -: Finding for Plaintiff. The evidence examined, and held sufficient to support the findings of the trial court.</p> <p><5. Trial to Court: Admission of Incompetent Evidence: Harmless Error. In trials of fact to the court without the intervention of a jury, if sufficient competent evidence is admitted to sustain the findings of the court, the case will not be reversed on the ground of the admission of immaterial and incompetent evidence.</p> <p>7. Actions: Plea in Abatement. The plea in abatement of another action pending in the same court between the same parties, regarding the same subject-matter and in which the relief sought is practically the same, is a good defense to a second action, and the fact that one is an action at law and the other in equity is immaterial.</p> <p>8. -: -: 'Pleading and Proof. To constitute a good defense, however, it is necessary for the party seeking the abatement of the present action, by reason of the pendency of that already commenced, to plead and prove the connection of the former action to the same subject-matter, the relations of the parties therein to be the same as that in the case in which the plea is interposed, and that the relief sought is practically identical with that sought in the second action.</p>

Heard below before Hopewell, J. The opinion contains a statement of the case. Fraud will never be imputed when the circumstances and facts upon which it is predicated may consist with honesty and purity of purpose.

Tried below before Strode, J. The facts are stated by the commissioner. A juror during deliberation upon the verdict made statements of facts in the case within his own personal knowledge. These statements were prejudicial to plaintiff in error and are grounds of reversal. (Richards v. State, 36 Neb., 18; Wood River Bank v. Dodge, 36 Neb., 708; Anshicks v. State, 6 Tex.

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

Original application for mandamus to compel the respondent to issue a warrant in payment for property purchased for the use of the University of Nebraska in accordance with the certificate of the board of regents.

<p>Error from the district court of Madison county. Tried below before Norris, J.</p> <p>Driesbach v. Second Nat. Bank, 14 Otto [U. S.], 52; Farmers & Mechanics Bank v. Hoagland, 7 Fed. Rep., 159; Barnet v. Second Nat. Bank, 98 U. S., 555; Higley v. First Nat. Bank, 26 O. St., 75; Central Nat. Bank v. Pratt, 115 Mass., 539.</p> <p>First Nat. Bank of Whitehall v. Lamb, 50 N. Y., 95; Hintermister v. First Nat. Bank of Chittenango, 64 N. Y., 212; National Bank of Auburn v. Lewis, 75 N. Y., 516; First Nat. Bank v. Commonwealth, 9 Wall. [U. S.], 353.</p>

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

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

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

' Original application for mandamus to compel the respondent, as county clerk of Franklin county, to enter upon his fee book and pay into the county treasury the fees received by him for making the tax list for the year 1891. Douglas County v. Timme, 32 Neb., 272; State v. Shearer, 29 Neb., 477. Richardson County v. Mussleman, 25 Neb., 625; People v. McCall, 65 How.

<p>1. Constitutional Law. The term “due process of law,” as employed in section 3, article 1, of the constitution of this state, relates primarily to the lemedy for wroDgs to persons and property rather than to matters of substantive law.</p> <p>2. —-—: District Irrigation Law : Bonds: Taxation. The act approved March 26, 1895, known as the “District Irrigation Law,” provides that when bonds are authorized by a vote of any irrigation district, application may be made to the district court of the county in which such district or part thereof is situated for an order confirming and approving the same. At the time set for hearing, and after notice by publication to all concerned, any person interested in said district may appear and resist such application, and the court may examine into and determine all questions pertaining to the organization of the district as well as the regularity of the voting and issuing of such bonds. Held, Not to contemplate the taking of property without due process of law, by means of taxation, within the prohibition of the state or federal constitution.</p> <p>3. Irrigation. Districts: Corporations: Officers. Irrigation districts organized under our laws are public, rather than municipal eorpoi ations, and their officers are public agents of the state.</p> <p>4. Statutes: Construction.- Power of Courts. While it is within the province of the judiciary to declare invalid acts evidently not designed to subserve public interest, if the subject-matter of legislation be such that there is any doubt of its character, or if by any reasonable, construction it can be held to be for the welfare of the public, the will of the legislature should » prevail over any mere doubt of the court.</p> <p>5. Constitutionality of District Irrigation Law. .The district irrigation law does not conflict with the constitution by authorizing the taking of property for private use only.</p> <p>6. Taxation. The power of taxation is an attribute of sovereignty having its source in the necessities of organized society, and the limits of its exercise depending, in the absence of express limitations upon such power, upon the exigencies of the public. That power has been committed by the people to the discretion of the legislature, and for an abuse of the trust thus imposed the remedy is by appeal to the people themselves in the manner prescribed by law.</p> <p>7. -: Validity of District Irrigation Law. The district irrigation law is not unconstitutional on the ground that the power thereby conferred upon districts to levy taxes is without limitation.</p> <p>8. Constitutionality of District Irrigation Law. Nor does said act conflict with the constitution on the ground that the effect thereof is to confer legislative power upon county boards.</p> <p>9. Taxation. The provision of section 1, article 9, of the constitution, for uniform taxation, relates to the revenue required for the general purposes of state and municipal government only, and has no application to taxes or assessments levied for local improvements. ,</p> <p>10. Corporations: Seals. Corporations, both municipal and private, may, in the absence of limitations, express or implied, as an incident to their general corporate powers, adopt and use a common seal.</p> <p>11. Validity of Tax Deeds: Treasurer’s Seal. Larson v. Dickey, 39 Neb., 463, and Dickey v. Paterson, 45 Neb., 848, distinguished.</p>

Tried below before Scott, J. The facts are stated in the opinion. If the plaintiff in error is guilty of murder as charged in the information, the crime was committed July 29, 1893, and he should have been tried under the laws then in force. By chapter 44, Session Laws, 1893, the jury, in finding a conviction of murder in the first degree, must fix the penalty and say by their verdict whether the defendant shall suffer death or imprisonment for« life.

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

<p>1. Rape. The word “abuse,” in the sense in which it is used in section 12 of the Criminal Code, is synonymous with the word “ravish.” Following Palin v. State, 38 Neb., 862.</p> <p>2. -¡Instructions. An instruction, in effect that carnal abuse does not necessarily mean abuse by sexual intercourse, attempted or accomplished, held erroneous.</p>

Error from the district court of Gage county. Tried below before Babcock, J. The opinion contains a statement of the case. The court erred in giving the tenth paragraph of the instructions asked by plaintiff. (Elshire v. Schuyler, 15 Neb., 561; Ramiz v. Barnes, 40 O. St., 45; Emory v. Addis, 71 Ill., 273; 3 Am. & Eng. Ency.

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

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

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

Error from the district court of Merrick county. Tried below before Sullivan, J. See statement in opinion and a former report in 35 Neb., 554. A manager of a live stock company would have authority to sell its cattle without any provision in the charter or by-laws creating the office of manager. (Hamm v. Drew, 83 Tex., 77.) Every person dealing with a corporation is bound to take notice of its by-laws as well as of its articles of incorporation.

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

Tried below before Norris, J. The facts are stated in the opinion'. The court erred in overruling the objections of accused to summoning jurors by special venire. (Dupont v. McAd.010, 9 Pac. Rep. [Mont.], 925; Lincoln v. Stowell, 73 Ill., 246; Kennon v. Gilmer, 4 Mont., 450.) Where insanity is once shown to exist it will, unless from a temporary cause, be presumed to continue until the contrary is made to appear.

Error, from the district court of Douglas county. Tried below before Davis, J. The facts are stated by the commissioner. The contract made by the giving and acceptance of the deed with the condition as written was such that’ it could benefit only the grantors and their heirs. The form of the contract is well known to the law, and it is equally well known that under such a contract no third parties, under any circumstances, can derive any benefits or legal rights whatever.

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

<p>Error from the district court of Lancaster county. Triéd. below before Tibbets, J.</p> <p>See opinions for reference to authorities.</p>

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

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

Error from the district court of Douglas county. Tried below before Irvine, J. The opinion contains a statement of the case. The employer, by law, owes a duty toward the employe independent of any action on the part of the employe, and that is, to furnish suitable and safe machinery and appliances for the performance of the labor required of the employe, and the more dangerous or hazardous the employment the greater the care and duty.

<p>1. Replevin: Affidavit: Justice of the Peace. The affidavit required by the provisions of the Code of Civil Procedure, in an action commenced beiore a justice of the peace to recover the possession of specific personal property, is the basis of the action and is jurisdictional and must be filed before a valid writ can issue.</p> <p>2. -: -. Where the original affidavit in an action of replevin contains a defective statement of the necessary averments of the plaintiff’s rights or claims, it may be amended to make clear or certain that which was indefinite or uncertain.</p> <p>3. -: -: Amendment: Corporations. When in an action of replevin, instituted by a corporation or partnership, the affidavit is made by some person for the corporation or partnership, it must, in its averments, refer to the rights and claims of • the corporation or firm and not those of the affiant, and if, in each necessary allegation, it refers to the claims of the affiant, the affidavit will be treated as in favor of the affiant individually, and insufficient to authorize the issuance of an order of delivery in favor of the corporation or firm, and where such writ was issued and is attacked by motion to quash on the ground of insufficiency of the affidavit, such affidavit may not be amended so as to make it one in favor of the corporation or partnership.</p>

<p>1. Appeal from Justice Courts: Transcribís. In error proceedings from a justice of the peace to reverse a judgment because it was alleged by affidavit that less than six jurors found the verdict upon which was based such judgment, the recitations of the transcript must prevail over contradictory statements embodied in the affidavit.</p> <p>2. Trial: Verdict: Waiver of Objections. A litigant who does not object to mere irregularities in receiving a’verdict, when the existence of such irregularities is known to him at the time they occur, cannot complain of them for the first time upon error proceedings in the district court.</p> <p>3. Contracts: Damages: Set-Off. A cause of action arising upon contract may properly he pleaded by way of set-off in an action brought for the recovery of damages. ' Following Raymond v. Oreen, 12 Neb., 215.</p>

<p>1. Contracts: Public Policy: Unlawful Consideration. No action can be maintained on a contract the consideration of which is either wicked in itself or prohibited by law.</p> <p>2. --: -: -: Sales. Plaintiff sued the defendant for the purchase price of beer to which the defendant by way of counter-claim pleaded payment for a license to sell beer, which, as defendant alleged, plaintiff had agreed to furnish to enable defendant to make such sales. By reply, plaintiff alleged a custom in accordance with which a retail traffic in beer had been carried on by defendant under and by virtue óf a license held by the plaintiff, which traffic in legal effect was a violation of the statute of Nebraska regulating traffic in liquors. Held, That for the purchase price of beer sold under these circumstances plaintiff was not entitled to recover against the defendant.</p>

<p>1. Erroneous Judgments: Collateral Attack. In a collateral proceeding a judgment irregularly rendered cannot be assailed on that ground, provided the court which rendered such judgment had proper jurisdiction.</p> <p>2. Review: Conflicting Evidence. Questions of fact determined upon conflicting evidence will not be reviewed in the supreme court.</p>

<p>Original application for mandamus to compel the respondent to register certain bonds of Boyd county.</p>

Error from the district court of Pawnee county. Tried below before Bush, J. The Opinion contains a statement of the case. Plaintiff in error should be permitted, to. present its claim for allowance and to share in the distribution of the assigned estate, though the claim was not filed within the time fixed by the county court. (Powers v. Hill, 27 Mo.

<p>1. Pleading. New matter constituting a defense in whole or in part is not available under a general denial, but should be specially pleaded. - '</p> <p>2. Evidence: Attorney and Client: Privileged Communications. Information voluntarily entrusted to an attorney at law, where the relation of attorney and client does not exist, ia not a privileged communication under the provisions of the Code of Civil Procedure.</p>

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

<p>Sufficiency of Complaint for Constructive Contempt.</p>

<p>1. Indictment and Information: Duplicity: Burglary. Different criminal acts constituting parts of the same transaction, such as burglary with intent to steal particular property, and the stealing of such property, may be charged in the same indictment or count thereof. (Aiken v. State, 41 Neb., 263.)</p> <p>2. Larceny: Evidence: Instructions. It is not error in a prosecution for larceny to charge that “the proof is deemed to be beyond a reasonable doubt when the evidence is sufficient toim. press the judgment and understanding of ordinary prudent men with a conviction upon which they would act in their own most important affairs or concerns of life.” (Polin v. State, 14 Neb., 540; Willis v. Slate, 43 Neb., 102.)</p> <p>3. Criminal Law: Instruction as to Penalty. Where the jury have been fully advised respecting the distinction between grand larceny and petit larceny, it is not error for the trial court to add that they have nothing to do with the question of the penalty, and that it is their duty to render a verdict in accordance with the evidence without regard to its effect upon the accused. (Ford v. State, 46 Neb., 390.)</p> <p>4. Instructions. Certain instructions held properly refused, the propositions therein embraced having been given by the court on its own motion in language quite as favorable to the accused.</p> <p>5. Larceny: Evidence. Evidence examined, and held to sustain the conviction on the charge of larceny.</p>

Original application for mandamus to compel the members of the state board of purchase and supplies to meet with the relator and make estimates, and purchase provisions and supplies for the penitentiary.

Tried below before Kinkaid, J. The opinion contains a statement of the case. The information was not made or filed by an officer authorized by law to do so. (Richards v. State, 22 Neb., 145; White v. State, 28 Neb., 341.) The court erred in overruling the application of plaintiff in error to be discharged for want of prosecution. (_Zrt re MeMiclten, 18 Pac. Rep. [Kan.], 473; People v. Morino, 24 Pac.

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

Tried below before Bush, J. See opinion for statement of the case. The court erred in refusing plaintiffs in error a reasonable time in which to prepare for trial after the name of the witness Levi Shores had been indorsed on the information. (Johnson v. Dinsmore, 11 Neb., 394; Newman v. State, 22 Neb., 355; Gandy v. State, 27 Neb., 707; People v. Evans, 72 Mich., 367; Elliott v. State, 34 Neb., 48.)

<p>Final Order: Review. An order sustaining a motion to quash a summons is not reviewable until followed by a final judgment of dismissal.</p>

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

Original application for mandamus to compel the respondents to reconvene as a board of canvassers and recanvass the votes cast in Furnas county, at the last general election, for the office of judge of the fourteenth judicial district of Nebraska.

<p>Usury: Set-Off. Lanham v. First Nat. Banin of Orete, 46 Neb., 663, followed.</p>

Original application for mandamus to compel the respondents to reconvene as a board of canvassers and recanvass the votes east in Dawes county, at the last general election, for the office of judge of the fifteenth judicial district of Nebraska.

<p>Appeal from the district court of Madison county. Heard below before Sullivan, J.</p> <p>Exley v. Berryhill, 30 N. W. Rep. [Minn.], 436; Whereatt v. Ellis, 30 N. W. Rep. [Wis.], 520; Nuckolls v. Lnoin, 2 Neb., 60; Flagg v. Cooper, 54 N. Y. Sup. Ct., 50; Loomis c. ■ Second German Building Association, 37 O. St., 392; Leonard’s Appeal, 94 Pa. St., 180; Kittanning Lns. Co. v. ■ Scott, 101 Pa. St., 449; Cope’s Appeal, 96 Pa. St., 294; ;Holmes v. Bush, 35 Hun [N. Y.], 637.</p>

Error from the district court of Holt county. Tried below before Chapman, J. The opinion contains a statement of the case. In an argument against the contentions that chapter 11, Session Laws of 1893, is void for uncertainty, and that the act creates no tribunal, in case of a disagreement of the companies, to determine their respective rights, reference was made to the following authorities: Texas Express Co. v. Texas & P. R. Co., 6 Fed.

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

Tried below before Bush, J. The practice of giving instructions detailing the evidence and calling the attention of the jury to particular portions of the testimony, thus giving such testimony undue prominence, has been disapproved.- (City of Lincoln v. Beckman, 23 Neb., 677 ; Marion v. State, 20 Neb., 233; Long v. State, 23 Neb., 33; Market v. Moudy, 11 Neb., 213; Burley v. Marsh, 11 Neb., 291; Kersenbrock v. Martin, 12 Neb., 376.)

<p>1. Corporations: Subscriptions for Stock The mere mismanagement of the affairs of a corporation will not release a stockholder from his obligation to pay for the stock subscribed by him.</p> <p>2. Trial: Directing Verdict. It is the duty of atrial court to direct a verdict lor the plaintiff if the evidence would not support a finding for the defendant.</p> <p>3. -: -: Evidence The evidence examined, and held to justify an instruction of the district court to the jury to return a verdict for the plaintiff.</p>

<p>1. Final Order: Review. An order to be final and reviewable on error or appeal must dispose of the merits of the case and leave nothing for the further judicial determination of the court.</p> <p>2. Order Dissolving Temporary Injunction: Review. No provision of the Code makes an order dissolving or modifying a temporary injunction reviewable except in connection with the final judgment rendered in the action of which the temporary injunction is an incident.</p>

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

Error from the district court of Madison county. Tried below before Powers, J. The authority totax costs is strictly statutory. Every item entered against a party must find its warrant in some statutory provision. There is no statutory authority permitting an officer to return as fees, or a court to tax as costs, anything for the care or custody of attached property upon dissolution of the attachment.

Original application for mandamus to compel the county officers of Red Willow county to remove their offices from Indianola to McCook.

Rehearing of original application for mandamus to compel the county officers of Red Willow county to remove their offices from Indianola to McCook. For former opinion, see 46 Neb., 724. Heard on motion of relator to strike out portions of the answers. The issues are stated by the commissioner.

<p>Error from the district court of Butler county. Tried below before Post, J.</p> <p>Marsh v. Burley, 13 Neb., 261; Pyle v. Warren, 2 Neb., 252; Severance v. Leavitt, 16 Neb., 439; Bullis v. Brake, 20 Neb., 171; South Omaha Nat. Bank v. Chase, 30 Neb., 444; Norton v. Pilger, 30 Neb., 860; Gillilan v. Kendall, 26 Neb., 82; Edminster v. Higgins, 6 Neb., 265; Rhea v. Reynolds, 12 Neb., 132.</p> <p>Weseott v. Archer, 12 Neb., 349; Ruser v. Union Distillery Co., 24 N. Y. Sup., 101; Rhode Island Hospital Trust Co. v. Keeney, 48 N. W. Rep. [N. Dak.], 341.</p>

<p>1. Railroad Companies: Negligence in Setting Out Fire: Damages. In an action against a railroad company for negligently setting out a fire, destroying plaintiff’s property, the evidence, without contradiction, showed that a certain engine of the railroad company which passed the place where the fire originated, at such a time that it might have set out the fire, was equipped with the most approved appliances, and was in good condition, but there was no direct evidence that this engine did set out the fire, and there was evidence that it was set out by a different engine. Held, That the issue of negligence in the construction and maintenance of the engine setting out the fire was properly submitted to the jury.</p> <p>2. -: -:-Instructions. Certain instructions, presenting no new question of law, construed, and held applicable to the evidence.</p> <p>3. -: -: Duty or Land-Owner to Protect His Property. The construction of a railroad- near one’s premises does not require one to forbear the ordinary use of his land, nor to take unusual precautions to guard against the consequences of probable negligence on the part of the railroad company. One is only required to take such precautions as a person of reasonable prudence would take to protect his property. (Omaha Fair & Exposition Association v. 3Iissouri P. B. Co., 42 Neb., 105.) . ></p> <p>4. Damages: Interest: Negligence.- Where property -is destroyed by the negligence of another, the owner will be entitled to interest on the value of the property from the time of its destruction. (Fremont, E. & M. V. E. Co. v. Marley, 25 Neb., 138.)</p>

Heard below before Irvine, J. See opinion for statement of the case. Gillespie v. Union Stock Yards Nat. Bank, 41 Fed. Rep., 231, 137 U. S., 411. The bank did all that could be required of it in reference to the drafts. Had the bank paid the drafts contrary to the orders of Fitch, it would have been liable to him. (Marzetti v. Williams, 1 B. & Ad. [Eng.], 415; Patterson v. Marine Nat. Bank, 18 Atl. Rep. [Pa.], 632; First Nat. Bank v. Mason, 95 Pa.

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

• Appeal from the district court of Cheyenne county. Heard below before Neville, J. The opinion contains a statement of the case. The fifty-three ballots having no mark opposite the name of appellee should not have been counted for him. (State v. Stein, 35 Neb., 859; Spurgin v. Thompson, 37 Neb., 39; Grant v. McCallum, 12 Can. L. J., 113; Woodward v. Sarsons, 32 L. T. R., n. s. [Eng.], 867; Cameron v. Maclennan, 11 Can. L. J., 163; Dionne v. Gagnon, 9 Queb.

Error from the district court of Webster county. Tried below before Beall, J. The facts are stated in the opinion. The note sued upon was without consideration and void as to plaintiffs in error. A surety, in order to recover, must show that the principal at the time of payment was under legal obligation to pay.

<p>1. Insurance: Premium Notes: Waiver of Default. A clause providing that an insurance policy shall he suspended during the time the premium note shall remain unpaid after maturity, is for the benefit of the company and may be waived by the insurer.</p> <p>2. --: -: Action on Notes: Measure of Recovery. A promissory note of date May 11, 1889, and due June 1,1889, was executed and delivered by the party insured to an insurance company for the entire amount of the premium for a policy of fire insurance insuring his property for a stated term. The contract of insurance and the note each contained a statement by which it was agreed that, if the assured failed to pay the note at maturity, the liability of the company under the policy for any loss or damage to the property insured happening thereafter, and during the continuance of such default, should be suspended. Default was made in the payment of the note when due. In a suit on the note a recovery may be had for the full amount of it or any unpaid balance thereof.</p>

<p>1. Guardians’ Sales: Regularity of Proceedings: Title of Purchaser. Defects and irregularities in the proceedings by a guardian for the sale of the real property of his ward will not affect the title of a good-faith purchaser, where so much as section 64, chapter 23, Compiled Statutes, makes essential to the validity of the sale has been complied with.</p> <p>2. -•: -: Jurisdiction: District Court. By “adistrict court of competent jurisdiction,” in subdivision 1 of said section, is meant the district court of the county in which the guardian was appointed.</p> <p>3. Guardian and Ward: Petition to Sell Land: Description of Property. A petition by a guardian for a license to sell the ward’s real estate should describe all the land that the ward owns, and especially that which is sought to he sold; but any description therein will be sufficient, when collaterally assailed, if it provides the means of identifying the property.</p> <p>4. -: -: -. In proceedings to sell the real estate of a ward, the description of the land need not necessarily be more specific, definite, and certain than is required in a conveyance of real properly. Hence a general description of the premises in such petition, as all the real estate of the ward situate in this state, or in any particular county or city therein, is not void for indefiniteness and uncertainty.</p> <p>fi. --: Sale of Land: Regularity of Proceedings. The proceedings of a guardian to obtain authority to sell the land of his ward will not be invalidated by reason of a manifestly false statement in the description of the property in the application and license, when the remainder of the description, after rejecting that which is erroneous, is sufficiently certain to enable the land to be located.</p>

Error from the district court of Madison county. Tried below before Powers, J. Where an uncertain and indefinite demand is based upon allegations of the petition, from which the amount of recovery sought cannot be definitely computed, the petition does not tender an issue, a cause of action is not stated, and such a pleading will not support a judgment. (Carter v. Shotwell, 42 Mo.

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

Tried below before Babcock,' J. Heard on a motion by plaintiff in error to compel the court stenographer of the first judicial district to furnish a transcript of the evidence upon which the case was tried.

<p>Error to the district court for Kearney county. Tried below before Beall, J.</p> <p>Bishop, New Criminal Procedure, sec. 422; Candy v. State, 8 Neb., 483; Aiken v. State, 41 Neb., 264.</p>

<p>1. Breach, of Contract: Damages. In a suit by a contractor against his contractee for damages for the latter’s failure to permit him to perform the work contracted to be doné, the contractor’s measure of damages is the profit he would have made on the contract had he performed it.</p> <p>2. Trial: Absence of Witnesses: Practice. A litigant whose witnesses are absent when his case is called for trial, and who makes no objection then to the trial proceeding on that account, cannot be heard to complain in his motion for a new trial that he was prejudiced by the trial taking place when his witnesses were absent.</p> <p>3. Damages: Evidence. The evidence examined and held to sustain the verdict of the jury.</p>

<p>1. Sales: Estoppel. A purchaser cannot successfully assert a greater interest in personal property than his vendor had, unless the real owner of the property, by his conduct, has estopped himself from asserting his title to the chattel.</p> <p>2. Conditional Sales. Á contract for the sale of personal property upon condition that the title is to remain in the vendor until the purchase price is paid is valid as between the parties, and valid as against third parties dealing with the property without notice, unless such third parties are purchasers, judgment or attaching creditors of the conditional vendee.</p> <p>3. Chattel Mortgages: Sales. A mortgagee of a conditional vendee in possession of chattels is not a purchaser within the meaning of section 26, chapter 32, Compiled! Statutes.</p> <p>á. Conditional Sales: Chattel Mortgages: Replevin. A contract between a manufacturing company and a printing company provided: “The manufacturing company hereby agrees to sell at the sum of $- to the printing company [a printing press, described] to be delivered, boxed, on cars at its factory * * * warranted free from defects of material and manufacture. * * * The printing company hereby agrees to buy such presses * * * and to pay therefor, on receipt of bill of lading of same, cash $-, and the balance in payments, evidenced by purchaser’s notes. * * * The title to the said property shall remain in the seller until the purchase price with interest has been fully paid, and in case of any default in any of the terms of this contract the seller shall have the right to take immediate possession of said property.” The presses were received by the printing company, put up, and used in its business, but it did not make the cash payment nor execute the notes as agreed. The printing company subsequently pledged these presses by a chattel mortgage to a bank to which it was indebted. The bank duly filed its mortgage and took actual possession of the presses. In an action of replevin by the manufacturing company against the bank, held, (1) that the printing company never acquired any title to the presses, and by its default had forfeited its right to their possession as against the manufacturing company; (2) that the manufacturing company was entitled to the possession of the presses as against the bank.</p>

Error from the district court of Buffalo county. Tried below before Holcomb, J. The facts are. stated by the commissioner. The agreement is binding. (State Bank of Nebraska v. Green, 8 Neb., 307; McCann v. McLennan, 3 Neb., 29; Palmer v. People, 4 Neb., 76; Rich v. State Nat. Bank of Lincoln, 7 Neb., 201.) The court had power to set aside the stipulation, and that power was properly exercised.

Error from the district court of Douglas county. Tried below before Davis, J. The opinion contains a statement of the case. After the introduction of the evidence by plaintiff, the court has no authority to dismiss the case and discharge the jury without a verdict. (Dolby v. Tingley, 9 Neb., 417; Smith v. Sioux. City & P. R. Co., 15 Neb., 583; Chicago, B. & Q. R. Co. v. Richardson, 28 Neb., 118; Byrd v. Blessing, 110.

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

<p>1. Review: Sufficiency of Pleadings. In error proceedings this court will, on proper assignments of error, review a record to ascertain whether the pleadings support the judgment rendered by the district court, although there was in that court no motion for a new trial.</p> <p>2. Mandamus. A writ of mandamus will not issue where it is not within the power of the respondents lawfully to perform the act sought to be enforced, or where the writ would otherwise be unavailing.</p> <p>3. --. Accordingly where an administrative board is charged with the duty of performing several acts involving expenditures, and there are no funds available sufficient to permit the performance of all, courts will not ordinarily by mandamus direct the board which act to perform and which to leave unperformed.</p>

<p>1. Bill of Exceptions. When a bill of exceptions has been quashed it cannot be afterwards considered for any purpose in the case. Jones v. Wolfe, 42 Neb., 272, followed.</p> <p>2. Review Without Bill of Exceptions: Instructions. In reviewing a judgment on petition in error without a bill of exceptions this court is necessarily confined in an examination of instructions to an inquiry whether the instructions given could under any circumstances be properly given under the pleadings. The refusal of instructions cannot be reviewed.</p> <p>3. Instructions: Harmless Error. The repetition of a proposition of law in the court’s charge is not reversible error unless it be made to appear that tbe defeated party was prejudiced thereby.</p> <p>4. Estoppel: Pleading. A party entitled to an estoppel need not in all cases formally plead the estoppel. If the facts constituting the estoppel are in any way sufficiently pleaded, he is entitled to the benefit of the law arising therefrom.</p> <p>5. Negotiable Instruments: Possession: Evidence. Possession of instruments negotiable by delivery is prima facie evidence of ownership.</p> <p>6. Banks and Banking: Guaranty by President: Negotiable Instruments. A person purchasing negotiable paper from the president of a bank, with a guaranty of payment executed by the president, is justified in relying on the president’s representation that the paper belonged to the bank, and the bank is bound by his representation to that effect, at least where the transaction occurred in the banking house, and while the president was apparently engaged in performing his duties as such officer.</p> <p>7. Instructions: Review. Certain instructions examined, and held not erroneous as applied to the case under consideration.</p>

<p>•Conflicting Evidence: Review. When the record presents questions of fact only, as to which the evidence is conflicting, and apparently evenly balanced, a verdict or finding based . thereon will not be disturbed bythis court.</p>

<p>1. Usury. Where by the terms of a promissory note it is provided that it shall bear interest until maturity at a given rate, and thereafter at a higher lawful rate, such contract is not usurious, nor is the agreement for the higher rate of interest after maturity a mere penalty.</p> <p>2. Interest. It is the duty of the court in computing the amount due on such an instrument to allow interest until maturity at the lower rate and thereafter at the higher rate.</p>

Error from the district court of Buffalo county. Tried below before Holcomb, J. In the argument reference was made to the following -cases: Eckman v. Scott, 34 Neb., 817; Bowen v. Foss, 28 Neb., 373; State Savings Bank of St. Joseph v. Soott, 10 Neb., 86; Webb v. Hoselton, 4 Neb., 308; Davis v. First Nat. Bank of Cheyenne, 5 Neb., 245; Gregory v. Hartley, 6 Neb., 356; Ch'ant v. Cropsey, 8 Neb., 205.

<p>1. Mechanics’ Liens: Contracts. The contract under which the subcontractor furnished material and performed labor, on account of which he filed the lien sought to be foreclosed in this case, held not such a written contract as is contemplated by the provisions of section 3, chapter 54, Compiled Statutes, in regard to mechanics’ liens, wherein it states: “ When any labor has been done or materials furnished as provided on a written contract, the same, or a copy thereof, shall be filed with the account herein required.”</p> <p>2. -: -: Evidence. The evidence examined, and held to sustain the decree of the district court except as to one item, in which particular it is modified, and, as modified, affirmed.</p>

<p>Error from the district court of Douglas county. Tried below before Doane, J.</p> <p>Paul v. Meservey, 58 Me., 419; Jewell ¶. Reddington, 57 Ia., 92; Harris v. Bradley, 9 Ind., 166; 2 Addison, Contracts, p. 854.</p>

Error from the district court of Douglas county. Tried below before Keysor, J. A motion for a new trial is necessary to obtain a review of a case on error to the supreme court. (Harrington v. Latta, 23 Neb., 98; Yates v. Kinney, 25 Neb., 122; Miller v. Antelope County, 35 Neb , 237; Ecklund v. Willis, 42 Neb., 737.)

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

<p>Error from the district court of Webster county. Tried below before Beall, J.</p> <p>References: Evans v. Powis, 1 Exch. [Eng.], 601*; Good v. Chessman, 2 B. & Ad. [Eng.], 328; Sard v. Rhodes, 1 M. & W. [Eng.], 153; Billings v. Vanderbeclc, 23 Barb. [N. Y.], 546; Goodrich v. Stanley, 24 Conn., 613; Bigelow v. Baldwin, 1 Gray [Mass.], 245; Hall v. Smith, 15 la., 584; Merry v. Allen, 39 la., 235; Babcock v. Hawkins, 23 Vt., 561.</p>

<p>1. Subscriptions: Parol Evidence. In an action upon a written subscription parol evidence is not admissible to add conditions to those expressed in the writing sued upon.</p> <p>2. Corporations: Subscriptions: Counter-Claims: Pleading. Where a defendant, by way of counter-claim, alleges that he was induced to make a subscription for the benefit of a corporation upon the faith of a promise contemporaneously made by an agent of such corporation that an amount of capital stock of such corporation equal to such subscription would be issued to him, such subscriber should aver the payment, or, at least, a legal tender, of the amount of such subscription before he is entitled to claim anything by reason of a failure to issue the stock.</p>

<p>1. Chattel Mortgages: Title to Chattels. The legal title to property pledged hy a chattel mortgage remains in the mortgagor and creates merely a lien. Musser v. King, 40 Neb., 892, and Camp v. Pollock, 45 Neb., 771, followed.</p> <p>2. Execution: Sale of Mortgaged Chattels. The title and interest of a mortgagor of chattels therein may be levied upon and sold under execution against him, the mortgagor being in possession.</p> <p>3. -: -: Title of Purchaser. A purchaser at such sale is thereby subrogated to all the rights, but only the rights, such mortgagor had to such property at the time of the levy of the execution thereon.</p> <p>4. -: -: -. A purchaser at such sale takes the property subject to all valid liens and the rights of the holders thereof existing thereon at the time of the levy of the execution under which the sale was made.</p> <p>5. Chattel Mortgages: Execution Sales: Tender of Payment of Debt by Purchaser. An unconditional tender by such a purchaser of the entire debt secured by a chattel mortgage existing against said property, the debt being at the time of the tender due and the tender being kept good, divests the lien of the mortgage and entitles the purchaser to the possession of the property. Tompkins v. Batie, 11 Neb., 147, and Knox v. Williams, 24 Neb., 630, followed.</p> <p>6. -: -: -: Costs. Such a tender, to be good and divest the lien of the mortgage, in addition to the amount of the mortgage debt, must include all reasonable and necessary- expenses which have been incurred by the holder of the mortgage in taking possession of the mortgaged property and in enforcing his lien thereon.</p>

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

Error from the district court of Sarpy county. Tried below before Hopewell, J. The facts are stated by the commissioner. The objection to the hypothetical questions assuming that plaintiff had been unable to work by reason of his injury should have been sustained. The questions assumed a conclusion or ultimate fact, which was for the jury alone to determine.

Error from the district court of Kearney county. Tried below before Beall, J. In argument reference was made to the following cases: State Savings Bank of St. Joseph v. Scott, 10 Neb., 84; Davis v. First Nat. Bank of Cheyenne, 5 Neb., 242; Male v. Christy, 8 Neb., 264; Webb v. Hoselton, 4 Neb., 308; Barnum v. Young, 10 Neb., 309; Gillespie v. Smith, 20 Neb., 455.