Volume 47 — Nebraska Reports

Error from the district court of Lancaster county. Tried below before Harr, J. Heard on. motion of defendant in error to affirm the judgment of the trial court.

Motion by appellee to dismiss appeal from a ■decree of the district court of Sarpy county on the ground that it was not taken in time.

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

Error from the district court of Douglas county. Tried below before Ferguson, J. The issues are stated in the opinion. There was error in receiving in evidence the answers to leading questions. (Swan v. Swan, 15 Neb., 453; Obernalte v. Edgar, 28 Neb., 70; St. Paid Fire cG Marine Ins.

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

Heard below before Holoomb, J. Tbe opinion contains a statement of the case. The title of Nora M. Jones was litigated by-Moore & Jones in the name of. Bobert A. Moore and Charles E. Hanson, and she is bound by the decree of this court in the former case. (Tarleton v. Johnson, 25 Ala., 300; GlafíÁn v. Fletcher, 7 Fed. Bep., 851; Burns v. Gavin, 118 Ind., 320; Parr v. State, 17 Atl.

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

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

<p>1. Justice of the Peace: Misconduct oe Oeeicer. A justice of the peace has no jurisdiction to hear and determine an action brought against a public officer for misconduct in office. Rule applied.</p> <p>2. Judgment of Reversal Upon Finding of Error. Held, That the findings are sufficient to support the judgment.</p>

<p>1. Appeal: Parties. The parties to a judgment, or their privies, alone can prosecute an appeal or petition in error.</p> <p>2. -: -: Dismissal. A petition in error will he dismissed where it is prosecuted by one who has no interest in the controversy, and against whom no judgment hass been entered.</p>

<p>Error from the district court of Buffalo county. Tried below before Holcomb, J.</p> <p>References: Hornv. Queen, 4 Neb., 108; Thompson v. Sharp, 17 Neb., 71; Luce v. Foster, 42 Neb., 818; White v. Gray, 61 N. W. Rep. [Ia.], 173; Senn v. Joseph, 17 So. Rep. [Ala.], 543; Taylor v. Evans, 29 S. W. Rep. [Tex.], 172; Graham v. Reno, 38 Pac. Rep. [Colo.], 835; Erslcine v. Mellrath, 62 N. W. Rep. [Minn.], 1130; Fischer v. Hetherington, 32 N. Y. Sup., 795; Beardsley v. Pope, 32 N. Y. Sup., 926; Smithson v. Smithson, 37 Neb., 539; Gluts v. Garter, 12 Neb., 113; Stoll v. Sheldon, 13 Neb., 207; Dalton v. West End Street R. Go., 34 N. E. Rep. [Mass.], 261; Harper, v. Nat. Ufe Ins. Go., 5 O. O. A., 509.</p>

Error from the district court of Seward county. Tried below before Bates, J. See opinion for statement of tbe case. . Tbe policy was forfeited by taking subsequent-insurance on tbe same premises. (2 M,ay, Insurance [2d ed.], sec. 364; Phoenix Ins. Co. v. Copeland, 8 So. Rep. [Ala.], 48; German Ins. Co. v. Heiduk, 30 Neb., 288; Reed v. Equitable Fire & Marine Ins. Co., 24 Atl. Rep. [R. I.], 833; Zimmerman v. Home Ins.

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

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

Error from the district court of Merrick county. Tried below before Marshall, J. The facts are stated by the commissioner. A defendant has the right to insist that all of the facts essential to the existence of a cause of action against him and in plaintiff’s favor be stated in the petition. (Bell v. Sherer, 12 Neb., 409; First Nat.

<p>Temporary Injunction: Final Order: Review. The orders sought to be reviewed upon petition in error, being only for the dissolution of a temporary restraining order, and in denial of a temporary injunction, it is held that neither of these is a final order, and this proceeding is therefore dismissed. Following Bartram v. Sherman, 46 Neb., 713.</p>

Error from the district court of Valley county. Tried below before Thompson, J. The opinion contains a statement of the case. Under the evidence there was no breach of legal duty by defendant below towards plaintiff’s intestate, and the injury from which he died was caused by his own negligence proximately contributing thereto. It was error to refuse to direct a verdict for defendant.

<p>Principal and Agent: Authority: Evidence: .Ratification. When the extent of an agent’s authority is in issue, no special instructions having been given to him, his actual authority to do a particular act in connection with the transaction may be inferred from proof that the principal had authorized or ratified similar acts in connection with past transactions of the same character, and entrusted to the agent under similar circumstances.</p>

<p>Review: Sufficiency of Evidence. This case presents only a question of fact. Evidence held sufficient to sustain the verdict.</p>

<p>1. Guardian and Ward: Removal oe Guardian. The county-court has power to remove a guardian, upon notice, when he has become incapable of discharging his trust or evidently unsuited therefor. (Compiled Statutes, ch. 34, sec. 28.)</p> <p>2. -: -. The disability justifying a removal need not be one arising after the appointment. A guardian may be removed whenever found unsuitable.</p> <p>'3.- --■: -. The word “unsuitable” in the statute applies to any case where the guardian is incapable or not in a situation to properly protect his .ward’s interests.</p> <p>4. -: -. Corruption or malfeasance is not necessary to authorize the removal of a guardian. Evidence of a failure to properly protect the ward’s rights is sufficient proof of “unsuitability.”</p>

<p>1. Attorney and Client: Release oe Debtor. An attorney employed to collect a debt has not by virtue of his general employment authority to release a debtor except upon payment of the full amount of the debt in money.</p> <p>2. -: -. Evidence examined, and held, insufficient to authorize attorneys to make a contract as claimed by plaintiff for the release of a judgment.</p>

<p>1. Quieting Title: Parties. Any person claiming title to real property in this state, whether in or out of possession, may maintain an action against any person or persons claiming adversely, for the purpose of determining such estate and quieting title. Foree v. Stubhs, 41 Neb., 271, followed.</p> <p>2. --: -. Such an action may be maintained by a remainder-man during the continuance of the particular estate.</p> <p>3. Execution: Void Decree: Quieting Title. Where a judicial sale and conveyance of land have been made under a void decree, a court of equity will not give affirmative relief to the person whose estate was sought to be divested unless he shows some equitable interest in the land. Hughes v. Housel, 33 Neb., 703, followed.</p> <p>4. Mortgages: Rights of Holder of Notes. The assignee of notes secured by mortgage, even though the assignment be without consideration, succeeds to the right of the mortgagee to have redemption made as a ■ condition of canceling the mortgage. Loney v. Gourtnay, 24 Neb., 580, followed.</p> <p>5. Principal and Agent: Ratification. A principal who ratifies a contract made for him by another must adopt all the instrumentalities employed by such agent to bring it to a consummation. Joslm v. Miller, 14 Neb., 91, followed.</p> <p>6. -: -: Husband and Wife. Therefore, where A purchased land and caused it to be conveyed to his wife, he giving at the time of the conveyance a mortgage in own name upon the land to secure a portion of the purchase money, the wife, by accepting the deed, adopted also the mortgage. It became an equitable mortgage upon the land.</p> <p>7. -: -: -. The fact that the husband was not authorized in writing to act in the matter is immaterial. The statute of frauds is not applicable to such a case.</p> <p>8. Estoppel: Creditors’ Bill: Mortgages. A conveyance was made which was void as against creditors, and, as part of the same transaction, a purchase-money mortgage was executed on the same land. A creditor caused the land to he subjected to the payment of his judgment. A portion of the land was sold, completely satisfying the judgment. The former creditor afterwards became- the assignee of the mortgage. Held, That he was. not es-topped by the creditors’ bill and proceedings thereon from foreclosing the mortgage upon that portion of the land which had not been subjected to the payment of his judgment.</p> <p>9. Quieting Title: Mortgages: Oeeer to Redeem. A mortgagor, in order to remove the cloud cast upon his title by a sheriff’s deed executed in pursuance of a void foreclosure, must offer to pay what is equitably due under the mortgage.</p> <p>10. -: -: -. When a mortgagor seeks such affirmative relief he is not relieved from the necessity of offering to redeem by the fact that the statute of limitations has barred the mortgagee’s right to foreclose. Mérrima v. Q-oodlett, 36 Neb., 384, followed.</p> <p>11. Limitation of Actions: Mortgages: Bill to Redeem. The statute of limitations begins to run against a bill to redeem from the time when, the mortgage having matured, the mortgagee enters into open and notorious possession of the premises under claim of ownership.</p> <p>12. -. Whether the period of limitations in such case is four or ten years is not decided.</p> <p>13. Adverse Possession: Mortgages: Sheriffs’ Deeds. A mortgagee, under a mortgage purporting to incumber the fee, sought to foreclose against the fee, bought the land at the foreclosure sale, and the sheriff’s deed purported to convey the fee and was immediately recorded. He entered into actual possession of the land. The foreclosure was void. The plaintiffs undertook to annul the deed. They were remainder-men after a life estate, the tenant of which was not a party to the suit. By their petition they admitted that the mortgagee had by the proceedings obtained the life estate; but the proof showed that the proceedings were void as to the life tenant as well as to the,plaintiffs. Held, That the mortgagee’s possession was adverse to the plaintiffs, and not merely for the life estate.</p> <p>14. Limitation of Actions: Mortgages: Offer to Redeem. The plaintiffs having undertaken to have both the mortgage and proceedings to foreclose it declared void, and the court having determined that while the foreclosure was void the mortgage was not, an opportunity to amend the petition by offering to redeem was denied, the proof showing that the right to redeem was barred by the statute of limitations.</p>

Original application for writ of habeas corpus. The opinion contains a statement of the case. The petitioner not having had an opportunity to return to the state from which he was taken, should only have been tried for the offense for which he was extradited. (9 Am. & Eng. Ency. Law, 252; State v. Hill, 40 Kan., 338; In re Robinson, 29 Neb., 135; In re Gannon, 47 Mich., 481; Ex parte McKnight, 28 N. E. Rep. [0.], 1034; Gompton v. Wilder, 40 0.

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

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

<p>1. Negotiable Instruments: Want oe Consideration: Pleading. Want of consideration in an action on a promissory note is new matter wbicb must be specially pleaded, and is not available as a defense under a general denial.</p> <p>2. Dismissal. The plaintiff may, as a matter of right, under section 430 of the Civil Code, dismiss his action without prejudice at any time before its final submission to the. court or jury.</p>

<p>1. Sales: Fbaud of Purchaser: Pleading and Proof. Proof of false statements knowingly made by the purchaser of goods, whereby he is shown to be possessed of a large amount of property over and above his liabilities, is admissible under an allegation that, being insolvent, he knowingly concealed his insolvency from the vendor.</p> <p>2. -: Replevin: Ratification: Election of Remedies. A vendor who is induced to part with possession of property through the fraud of the purchasers has his election to rescind the contract and reclaim the property sold, or to ratify the sale and pursue his ordinary remedy by an action on the contract.</p> <p>3. -: -: -: -. But such remedies are not concurrent, and by electing to pursue one, with a knowledge of the facts, he waives his right to the other.</p>

Error from the district court of Lancaster county. Tried below before Holmes, J. The issues appear in the opinion. The application praying for a license at 229 M street did not give the excise board or the court jurisdiction to grant a license to open a saloon at 229 South Thirteenth street. (State v. Weber, 20 Neb., 467; Dexter v. Toim Council, 21 Atl.

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

<p>1. Partnership: Dissolution: Action at Law Between Partners. The decision in relation to certain questions in this case, which were announced in a former opinion, for a report of which see 45 Neb., 582, herein reaffirmed, and having been stated in the syllabus, will not be here restated.</p> <p>2. Principal and Surety. Parties who signed the bond of one of the members of a copartnership, conditioned for the due and faithful performance of his duties, in and concerning the business in which the firm engaged, held, not released from their obligation thus assumed, by an increase in the amount of the capital invested in the business.</p>

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

<p>1. Attachment: Affidavit. An affidavit for an attachment setting forth the grounds therefor in the language of the statute is sufficient.</p> <p>2. Garnishment. Error cannot be predicated by a judgment debtor upon the making of an order upon a garnishee to pay money into, court, or the refusal to vacate such order, when such debtor disclaims any interest in the money garnished.</p>

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

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

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

<p>1. Bill of Exceptions: Authentication. A bill of exceptions in a- cause tried in the district court must be authenticated by the certificate of the clerk of such court, to entitle it to be considered in the supreme court.</p> <p>2. Transcript: Motion for New Trial. A paper purporting to be a motion for a new trial cannot be considered, unless certified to in the transcript by the clerk of the district court.</p>

<p>1. Failure to Authenticate Bill of Exceptions: Review. In. the absence of a certificate of the clerk of the district court authenticating the bill of exceptions, it will be presumed that every essential averment in the petition not negatived by the verdict was proven, and that the instructions refused were properly denied.</p> <p>2. Instructions: Exceptions: Review. Instructions not excepted to when given cannot be reviewed in the appellate court.</p> <p>3. Review: Assignments oe Error. The fifth paragraph of the court’s charge to the jury not considered, because the giving was not properly assigned for error in either the motion for a new trial or petition in error.</p>

<p>Transcripts: Authentication: Instructions. Where there is no error sufficiently assigned in the petition in error to challenge the attention of the supreme court, except such as are claimed to have arisen upon the alleged giving or refusal to give instructions, an entire failure to authenticate these alleged instructions precludes the consideration of assignments of error with respect thereto.</p>

Heard below before Doane, J. Tlie facts are stated by tbe commissioner. Payment of the sum-awarded was a condition precedent to the termination of the lease. (People’s Bank v. Mitchell, 73 N. Y., 406; Clemens v. Murphy, 40 Mo., 122; Friar v. Grey, 5 Exch. [Eng.], 584; Gadby v. Martinez, 11 Ad. & E. [Eng.], 720; Pomroy v. Gold, 43 Mass., 500;' McFadden v. Mc-Oann, 25 la., 252; Goodwin v.'Lynn, 4 Wash. C. O. [U. S.], 714; Wells v. Smith, 2 Edw.

<p>Tax Deeds: Injunction to Restrain Issuance: Evidence. Where the plaintiff’s right-to have enjoined the issuance of a treasurer’s deed depends upon his affirmatively show- ■ ing that the sale, pursuant to which such deed is to he issued, was made in violation of an injunction prohibiting it, there must, to entitle to the relief prayed, he evidence of the very essential fact that at the time of the tax sale such decree was in existence.</p>

<p>Estoppel: Chattel Mortgages: Distribution oe Proceeds of Sale: Stipulations. In an action begun to subject goods and the proceeds of sales of goods in the hands of an agent of defendants to the payment of a claim held by the plaintiff against the common debtor of both the plaintiff and the defendants, the plaintiff is held not to have disclosed a right superior to that of the defendants by merely showing that the goods and proceeds sought to be reached had originally been taken possession of by an agent of defendants by virtue of defective mortgages, especially in view of the fact that there was subsequent to such possession taken an agreement made by the parties that the action should proceed to judgment according to the rights of each after the proceeds of the sales of the goods had been remitted to defendants, which remittance had accordingly been made, there being no evidence of fraud practiced or participated in by the defendants, against whom judgment is sought for the amount of such proceeds.</p>

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

<p>1. Replevin: Rescission of Sale: Fraud: Pleading and Proof. A plaintiff in replevin may under a petition alleging generally ownership and right of possession in himself, and a wrongful detention by defendant, prove fraud inducing a previous sale by plaintiff to defendant, and a rescission because thereof. It is not necessary to specially plead the fraud.</p> <p>2. Sales: Rescission: Chattel Mortgages. One who takes a pledge or mortgage of personal property to secure a preexisting debt is not entitled to protection as a bona fide purchaser against an action to rescind a sale of the property previously made to the pledgor or mortgagor. Tootle v. First Nat. Bank of Ohad/ron, 34 Neb., 863, followed.</p> <p>.2. -: -: Return of Purchase Money. In general, when a vendor seeks to rescind a sale for fraud he must return or offer to return any portion of the purchase money which he may have received; but he need not do so when the property has been damaged by the fraudulent vendee to an amount equal to the purchase money so received.</p>

<p>Time to Prepare Bill of Exceptions: New Trial: Mandamus. Where a trial has been had and a motion for a new trial sustained, the time for preparing a bill of exceptions embodying the evidence on that trial is fixed at the latest by the term at which the motion for a new trial was sustained, and not by the term at which final judgment was rendered, or at which a new trial was had, or a new trial after such second trial denied.</p>

<p>Error from tbe district court of Antelope-county. Tried below before Bartow, J.</p>

<p>1. Mandamus: Payment of Judgment. A writ of mandamus-to compel county officers .to pay judgments against the county is not void because the judgments were void.</p> <p>2. ■ — -: -: Contempt. In such case the nullity of the-judgments was a defense to the application for a mandamus. The district court having jurisdiction of the parties, had jurisdiction to determine the validity of the-judgments, and a writ of mcmdcmius issued in that case cannot be resisted' because the issue was erroneously determined.</p>

<p>1. Estoppel in Pais. To constitute an estoppel in pais tile person sought to be estopped must have conducted himself with the intention of influencing the conduct of another, or with reason to believe his conduct would influence the other’s conduct, inconsistently with the evidence he proposes to give.</p> <p>2. -: Commission Merchants: Drafts: Acceptance. B. & F., live stock commission merchants at South Omaha, wrote to the U. Bank a letter saying: “We will pay H. & M.’s drafts until further notice for the cost or value of stock shipped to us here with or without bill of lading attached.” Held, That B. & F. thereby obligated; themselves to accept drafts made in pursuance of such letter of credit, provided they were in fact for the cost or value of stock then shipped; the bank in discounting drafts taking the risk of that fact, but the risk being transferred to B. & F. upon their acceptance of the drafts.</p> <p>3. -:--: ■ — -; -. Under the letter of credit above quoted, a draft was drawn October 23, and accepted October 29. On October 29 a large shipment of stock was made. November 8 another draft was drawn not covered by stock shipped, unless the shipment of October 291 should be applied thereto. There was no evidence that the bank in receiving the last draft relied on the acceptance of the former as not including the shipment of October 29. Held, That under the circumstances B. & F., in defense of an action based on their refusal to accept the last draft, were not estopped from showing that the earlier draft had been covered in part by the shipment of October 29, the day of its acceptance.</p> <p>4. -: -: -: -: Instbuctions. An instruction under such circumstances, to the effect that the bank had a right to rely from the acceptance of the earlier draft upon the fact that stock to cover it had been shipped prior to the date of its acceptance, and that B. & F. could not apply the shipment made on that day to its payment, was erroneous.</p> <p>5. -: -: -: -. The estoppel contended for would not arise beyond forbidding B. & F. to apply to the payment of the earlier draft shipments of stock of which they could not reasonably have known at the time of accepting such draft.</p>

<p>1. Pleading: Amendments. Notwithstanding the liberal provision for amendment of pleadings, the subject is one resting largely in the discretion of the trial court, and its rulings in that regard are not, in the absence of an abuse of discretion, the subject of review by this court.</p> <p>2. Chattel Mortgages: Title to Chattels. The title of property pledged by chattel mortgage remains in the mortgagor until divested by means of foreclosure proceedings. (Musser v. King, 40 Neb., 892.)</p> <p>3. •-: Foreclosure: Delay. One who takes possession of mortgaged chattels in order to satisfy his lien thereon by means of notice and sale in the manner prescribed by law, does so with the implied obligation to proceed without unreasonable delay and with due regard for the rights • of the mortgagor.</p> <p>4. -: Use oe Chattels: Damages. The mortgagee’s right to the use of chattels mortgaged is, in the absence of a special agreement, merely such as is incident to the foreclosure proceeding,' and the breach of his obligation in that regard is an actionable wrong.</p>

<p>Error from the district court of Douglas county. Tried below before Hopewell, J.</p> <p>, References: Gould v. Evansville £ G. R. Go., 91 TJ. S., 526; Burner v. Hevener, 26. Am. St. Rep. [W. Va.], 948; Ober v. Gallagher, 3 Otto [U. S.], 199; Ward v. Todd, 103 U. S., 327; Haines v. Finn, 26 Neb., 380; Mason v. Hartford P. & F. R. Go., 19 Fed. Rep., 55; Parker v. Ormsby, 141 U. S., 81; Morris v. Gilmer, 129 U. S., 315; Des Moines 'Navigation & Railroad Go. v. Iowa Homestead Go., 123 U. S., 552; Skillern v. May, 6 Cranch [U. S.], 267; McCormick v. Sullivant, 10 Wheat. [U. S.], 192; Holmes v. Oregon & G. R. Go., 9 Fed. Rep., 236; Setttemier v. Sullivan, 97 U. S., 444; Ertoin v. Lowry, 7 How. [U. S.], 172; Ex parte Watkins, 3 Pet. [U. S.], 206; Kennedy v. Georgia State Bank, 8 How. [U. S.], 610; Noonan v. Bradley, 12 Wall. [U. S.], 129; Whyte v. Gibbes, 20 Hoto. [U. S.], 541; Daniels v. Tibbets, 16 Neb., 666.</p> <p>References: Mersnean v. Werges, 3 Fed. Rep., 378; Yannerson v. Leverett, 31 Fed. Rep., 366; Schribar v. Platt, 19 Neb., 630; Blacklook v. Small, 127 U. S., 96; Cameron v. McRoberts, 3 Wheat. [U. S.], 591; Bank of United States v. Moss, 6 How. [U. S.], 31; United States v. Huckabee, 16 Wall. [U. S.], 414; Morgan v. Plumb, 9 Wend. [N. Y.], 287; Bottorf v. Wise, 53 Ind., 34; Miles v. GaldweM, 2 Wall. [U. S.], 35; Sturtevantv. Randall, 53 Me., 154; Perkins v. Parker, 10 Allen [Mass.], 22; Hunger-ford’s Appeal, 41 Conn., 322; Jackson v. Schoonmaker, 2 Johns. [N. Y.], 229; Clapp v. Maxwell, 13 Neb., 542; Taylor v. Larkin, 12 Mo., 104; Waddle v. I she, 12 Ala., 308; Hughes v. United States, 4 Wall. [U. S.], 236; Colby v. Parker, 34 Neb., 510; Stover v. Tompkins, 34 Neb., 465.</p>

<p>1. Parol Evidence: Negotiable Instbtjjients: Indobsements. The words “without recourse,” following the name of the first, and preceding the name of the second indorser of a hill or note, may he shown by parol evidence to apply to the former instead of the latter.</p> <p>2. Negotiable Instruments: Indorsements: Evidence. As against a subsequent dona fide holder, the liability created by the indorsement in blank of a bill or note cannot be varied by parol evidence; but, as between the original parties to such an indorsement, the terms of the contract is a proper subject of inquiry, and may be established by parol evidence. (Holmes ¶. First Flat. Bank of Lincoln, 38 Neb., 326.)</p> <p>3. -; -: --. Plaintiffs in error, on the evidence in the record, held, not liable as indorsers.</p>

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

<p>Action Against Sheriff for Fees Wrongfully Received and Retained: Judgment eor-Defendant. Evidence in the case examined, and held not to sustain the finding and verdict of the jury in the trial court.</p>

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

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

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

Error from the district court of Douglas county. Tried below before Davis, J. The facts are stated in the opinion. Reference: Ryder v. Burlington, G. R. & N. R. Go., 1 N. W. Rep. [Ia.], 747. The sureties have a right to stand upon the strict terms of their obligations. (.People v. Chalmers, 60 N. Y., 154; Chase v. McDonald, 7 Har. & J.. [Md.], 160; Law v. East India Go., 4 Yes. [Eng.], 824; Lang v. Pike, 27 0.

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

<p>1. Replevin: Pleading: Evidence: Chattel Mortgages. An allegation of general ownership, in a petition and affidavit in replevin, is not supported by the introduction of the chattel mortgage under which the plaintiff claims the right of possession of the property replevied. (Musser v. King, 40 Neb., 892; Randall v. Persons, 42 Neb., 607; Sharp v. Johnson, 44 Neb., 165; Gamp v. Polloclc, 45 Neb., 771.)</p> <p>2. Replevin by Mortgagee: Verdict eor Plaintiee. Meld, That the evidence fails to sustain the verdict.</p>

<p>1. Pleading and Proof. A party is not required to prove an. averment which is admitted by the pleading of his advefsary.</p> <p>2. Action on Appeal Bond: Executions. The issuing of an execution is not a condition precedent to the right' of a judgment creditor to maintain an action against the surety on an appeal undertaking given to enable the judgment debtor to appeal. (Flannagan v. Cleveland, 44-Neb., 58.)</p> <p>3. Principal and Surety: Appeal Bonds: Continuance. The mere continuance of a cause on appeal, without the consent of the surety on the appeal bond, will not release such. ' surety. (Howell v. Alma Milling Co., 36 Neb., 80.)</p> <p>4. -: -. Judgment was recovered before a justice of the peace against two makers of a promissory note, who jointly appealed to the district court. The undertaking of the surety on the appeal bond was to pay any judgment rendered against the appellants. Held, That the surety is liable, notwithstanding judgment in the appellate court was only against one of the appellants.</p>

<p>1. Justice* of the Peace: Final Order: Appeal. It is only from a final judgment of a justice of the peace that am appeal lies. (Riddle v. lates, 10 Neb., 510.)</p> <p>2. Dismissal of Appeal. Where a district court has properly dismissed an appeal from a justice of the peace, such order-of dismissal will not be reversed merely because a bad reason was assigned for tbe decision. Leake v. Gallogly, 34 Neb., 859,'followed.</p>

<p>Error from the district court of Lancaster county. Tried below before Strode, J.</p> <p>• References: Wilson v. Burney, 8 Neb., 39; Rockcrea,u v: Guidry, 24 La. Ann., 294; Ohio & M. R. Go. v. Alvey, 43 Ind., 180; Glough v. Buck, 6 Neb., 343; Meyer v. Shamp, 26 Neb., 729.</p> <p>References: Russell v. Rosenbaum, 24 Neb., 769; Laidlato v. Morrow, 44 Mich., 547; Roy v. Baucus, 43 Barb. [N. Y.], 310; State v. Duncan, 37 Neb., 631; Bryan v. Duncan, 19 D. C., 379; Turner v. Sioux Gity & P. R. Go., 19 Neb., 247.</p>

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

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

<p>1. Vendor and Vendee: Misrepresentations: Evidence: Rescission. One who, as an inducement to a sale of land, in good faith states to the vendee that reliable third persons have represented the land to him as being of a certain character, and who at the same time states that he has no personal knowledge in regard to the land, does not thereby adopt such representations as his own, and rescission cannot be had merely because they prove false.</p> <p>2. -: -: -: -. The statement that such third persons are reliable, being merely the expression of an opinion, is insufficient to charge the vendor in an action to rescind, at least where he honestly believed them reliable when the statement was made.</p> <p>3. Mistakes: Equity: Misrepresentations. The jurisdiction of equity to relieve against mutual mistakes is, in general, confined to cases where, because of such mistake, the minds of the parties never met, and there was therefore no contract, and to cases where the contract made was not correctly expressed by the instrument evidencing it. Relief cannot be given because of misapprehensions in regard to a collateral matter, as in regard to a fact incidentally affecting the value of the subject-matter of the contract, there being no deception or wrongful concealment.</p>

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

<p>1. Descent and Distribution: Construction of Statute. A. died intestate, leaving surviving him neither issue, nor father, mother, brother, or sister. There were surviving four children of a deceased brother, eight children of a deceased sister, and three children of a deceased daughter of such sister. Held, That under our statute of descent the twelve surviving nephews and nieces took each one-twelfth part of the intestate’s land, per capita, and that the grand-nephews and grand-nieces took nothing.</p> <p>2. -. Such a case falls within the fifth subdivision of section 30, chapter 23, Compiled Statutes, and not within the third subdivision.</p> <p>3. -. Inheritance per stirpes does not obtain under our law except where affirmatively provided.</p> <p>4. -. The rule of inheritance per stirpes is in general applied only from necessity, as where the heirs are of unequal degree of kinship to the intestate. Where they are o£ equal degree, they take as principals.</p> <p>¡5. -. It is the object of our statute to cut off inheritance per stirpes among collaterals where at any point beyond the children of brothers and sisters the surviving kindred are of unequal degrees. In such case those nearest in degree take the estate to the exclusion of those more remote.</p>

<p>1. Instructions: Failure to Number: Review. In order to-present for review the failure of the district court to properly number instructions, exception must at the trial have been taken on that especial ground.</p> <p>2.-: Citations: Harmless Error. While instructions. should not be submitted to the jury with authorities noted thereon, still prejudice will not be presumed from, the mere citation on the instruction of a volume and page of the reports. Sioux City & P. R. Oo. v. Finlaysonr 16 Neb., 578, followed.</p> <p>3. Slander: Special Damages. Words spoken imputing an. indictable offense, are actionable per se, and no special damage need be proved.</p> <p>4. -: Measure oe Damages. Evidence examined, and held sufficient to sustain a verdict for $1,000.</p>

Error from the district court of Douglas county. Tried below before Ogden, J. The opinion contains a statement .of the case. The agent had no power to waive the condition The policy and application constitute the contract. {Adema v. Lafayette Fire Ins. Co., 36 La.. Ann., 662; Glvrisman v. State Ins. Go., 18 Pac. Rep.. [Ore.], 466; Byers v. Farmers Ins. Go., 35 O. St.„ 606; Fitzrandolph v. Mutual Relief Society, 17 Can.

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

<p>1. Bill of Exceptions: Authentication. A bill of exceptions in a cause tried in tbe district court must be filed with tbe cleric of that court, and if the original bill is to be used in the supreme court, it must be authenticated by ' the certificate of the cleric of the trial court.</p> <p>2. Review: Assignments oe Error. Assignments of a petition in error which can be reviewed only in connection with a hill of exceptions will be disregarded where no authentic bill is contained in the record.</p> <p>3. -: Affirmance. The petition in error presenting no Question of law or fact for review, the judgment is affirmed.</p>

Heard below before Tuttle, J. See opinion for statement of tbe case. The petition merely alleges that the deed was made and executed, without any allegation of delivery. The proof also fails to show delivery of the deed. The plaintiff has no title to the lot except as one of the heirs of Hannah Brown.

<p>1. Review: Assignments or Error. Assignments of error relating to the giving and refusal of instructions cannot, be considered unless the record discloses that exceptions; were taken at the trial.</p> <p>2. -: -: Waiver. Assignments of error not presented by the briefs or oral argument, will be treated as waived.</p>

Error from the district court of Douglas county. Tried below before Davis, J. The facts are stated by the commissioner.

Rehearing of case reported in 46 Neb., 724, on application for mandamus to compel the officers of Red Willow county to remove their offices from Indianola to McCook. The issues appear in the opinion and in the former report of the case. Blank ballots, and ballots from which it is impossible to determine the elector’s choice, are not votes, are void, and should not be counted. (Old-know v. Waimoright, 1 Wm.

Error from the district court of Douglas county. Tried below before Ambrose, Duefie, and Keysor, JJ. . The opinion contains a statement of the case. The act in question does not violate the following provisions of section 11, article 3, of the constitution: “No bill shall contain more than one subject, and the same shall be clearly expressed in its title.

Original action in the supreme court to recover from defendants upon the official bond of John E. Hill for his second term as state treasurer, the sum of $236,364.62. There was a trial to a jury, resulting in a verdict for defendants. Heard on motion of the state for a new trial and on motion of defendants for judgment on the verdict.

Error from the district court of Douglas «county. Tried below before Ambrose, J. The opinion contains a statement of the case. The provisions of section 48 of the city charter do not apply to viaducts existing at the time they went into operation, but to those only to be thereafter constructed.

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

Original application for a writ of prohibition forbidding the respondent from entertaining, any proceeding or making any order in a certain cause pending in the district court for Lancaster county. Prohibition is a remedy provided by the common law against encroachment of jurisdiction and is regarded as generally applicable unless abrogated by positive and express statutory enactment.

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

<p>1. Appeal Bonds: Additional Security: Practice. If, in an appeal to the district court from a judgment of a justice of the peace, the appeal bond is believed to be insufficient, it is proper for the appellee to file a motion asking the court to order a change or renewal of such undertaking.</p> <p>2. -: -: -: Dismissal Nisi. In such a case, if the court is satisfied of the insufficiency of the appeal undertaking, it may make the order requested, and it is proper practice to fix the time within which such change or renewal shall be effected and to enter a dismissal of the action for a non-compliance with such order.</p> <p>3. Conflicting Evidence: Review. The finding of a trial court on conflicting testimony will not be disturbed on error or appeal, unless clearly and manifestly wrong.</p> <p>4. Order for Sufficient Appeal Bond: Evidence. The evidence examined, and held to' sustain the findings of the trial court.</p>

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

<p>1. Merger of Estates. Whenever a person acquires a greater and a lesser estate in the same property and there is no intervening estate, the lesser does not further exist as a separate estate but is destroyed by or is considered in law as merged in the greater, but when, in such a case, an intention that the estates remain separate and distinct is expressed or may be implied or inferred, no merger can ensue but the intention will prevail.</p> <p>2. Mortgages: Collateral Notes: Deeds: Merger. A mortgagee acquired the title to the mortgaged property, and in 'the deed by which it was conveyed to him it was stated that the title was passed “subject to a mortgage of three hundred dollars which grantee hereby assumes and agrees to pay.” Held, That it was evident from this that the intention was to continue the life of the lien of the mortgage and no merger ensued as between the parties, or against a dona fide purchaser of the notes secured by the mortgage, and the deed, if recorded, was notice of the fact of such intention to parties who subsequently purchased the premises, and also afforded such notice to parties to whom it was so exhibited as to bring to their knowledge the existence of the clause in the deed, and who afterwards bought the property.</p> <p>3. Vendor and Vendee: Mortgages: Release: Bona Fide Purchasers oe Notes. Where parties before buying real estate examine the records and find the property to be encumbered by a mortgage, and apply to the mortgagee for information and are by him told that he has received a conveyance of the title, and a deed from the mortgagor to the mortgagee conveying the property is exhibited to them, and such deed contains a clause by which the grantee assumes and agrees to pay the indebtedness secured by the mortgage, and they subsequently buy the property at a time when, to their knowledge, the mortgage debt had not matured, they are chargeable with such notice as required them to make further inquiry and are not innocent purchasers, and a bona fide purchaser of the mortgage notes, at a date prior to the time of the purchase of the property by such parties, may enforce the mortgage as against their rights, and this, notwithstanding at the time they purchased the premises the mortgagee released the lien of the mortgage of record.</p>

<p>Review: Bill oe Exceptions. A decree of the district court cannot be reviewed upon a question of fact, when the evidence has not been preserved by a bill of exceptions duly-settled and allowed.</p>

<p>1. Agency: Evidence. Agency cannot be proved by the mere declarations of one assuming to act in that capacity.</p> <p>2. Review: Findings: Practice. The finding of a jury will be set aside where there is not sufficient evidence to support it.</p>

Tried below before Scott, J. The editor-in-chief of a newspaper is liable as for contempt for articles which appear in the columns of his paper, though it is affirmatively-shown that he had no knowledge of the articles until after publication. (People v. Wilson, 64 111., 195; State v. Frew, 24 W. Ya., 416; Commonwealth v. Morgan, 107 Mass., 199; People v. Stapleton, 33 Pac.

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

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

<p>1 Mechanics’Liens: Waiver: Notes. The mere fact that the owner of real property has l n his note for a portion of the amount due for materials furnished for making erections on his property does not relieve such property from a mechanic’s lien filed against the same for the entire amount of the material so furnished.</p> <p>2. -: -: -. Where a party has furnished materials for the improvement of real property and in all respects has complied with the mechanic’s lien law in respect thereto, his rights will not be held destroyed • merely because in taking a note for the amount due he has described himself by the fanciful designation of the “Western Cornice Works,” where there is no claim that thereby anyone was misled or injured.</p>

Heard below before Marshall, J. The facts are stated by the commissioner.

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

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

Error from the district court of Lancaster county. Tried below before Tibbets, J. Heard on motion of plaintiff in error for leave to withdraw the record for the purpose of submitting to the lower court an application to insert exhibits omitted from the bill of exceptions.

<p>1. Party in Interest. The real party in interest, under section 29 of the Code. of Civil Procedure, is the .person entitled to the avails of the suit.</p> <p>2. Sales: Gifts: Conversion: Parties. Except as against his creditors, one may sell his property for a nominal consideration or give it away; and if he does either, his vendee or donee is the real party in interest in a suit for the conversion of such property.</p> <p>3. Action Against Sheriff: Damages: Evidence. Evidence examined, and held wholly insufficient to sustain the verdict of the jury.</p>

<p>1 Review: Remittitur. Where the only reversible error in the record is that the amount of the recovery is excessive, this court will affirm the. judgment upon the excess being remitted, if the evidence will support the remainder of the finding.</p> <p>2. Evidence. The law requires the production of the best evidence obtainable, and if the primary evidence is lost, then secondary evidence satisfies the rule.</p> <p>3. -: Lost Records. Where the files of a case have been lost, — such as papers in an attachment proceeding, — that such papers existed, and their contents, may be proved by parol, the proper foundation having been laid for the introduction of secondary evidence.</p> <p>4. -: Original Papers and Opeicial Records: Practice. The practice of introducing in evidence in a case on trial the papers and files belonging to another case, or the original records of an office, is not to be commended. If such files or records are needed as evidence certified copies should be procured for that purpose.</p> <p>5. Fraudulent Conveyances: Bona Fide Purchasers: Attachment: Damages. Certain instructions of tlie trial court set out in tlie opinion and approved.</p>

Error from the district court of Douglas county. Tried below before Davis, J. Tbe facts are stated in tbe opinion. There was a clear departure from tbe terms of tbe contract Tbe testimony offered to prove tbe alteration in tbe terms of tbe agreement should have been received. {Hills v._ Rue, 4 Pa. St., 348; Anderson v. Bellenger, 87 Ala., 334; Farnsworth v. Coots, 46 Mich., 117; Kimball v. Baker, 62 Wis., 529; Stull v. Hance, 62 111., 52; Phillips v. Singer Mfg.

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

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

<p>1. Action to Recover Money Forcibly Taken from Debtor: Verdict for Plaintifí. Evidence examined, and held to sustain tbe verdict.</p> <p>2. Pleading: Instructions: Statement of Issues. Where pleadings contain matters of evidence rather than ultimate facts, the court sufficiently states the issues by stating tersely the ultimate facts pleaded, and disregarding such evidentiary facts.</p> <p>S. Witnesses: Evidence: Jury. A jury is not bound to blindly accept as true all testimony which is not directly contradicted or impeached. The testimony of a witness should be weighed in connection with all the facts in the case. Instructions substantially to that effect are not erroneous.</p> <p>4. Trover and Conversion: Recovery oe Money Forcibly Taken from Debtor. Money taken forcibly and without the consent of the owner may be recovered back; and the fact that the owner was indebted to the wrongdoer in an amount as great as the sum taken is no defense.</p> <p>5. Instructions: Evidence. It is not error to refuse to give instructions directing the jury what degree of importance should be attached to particular evidence.</p>

Error from the district court of Webster county. Tried below before Beall, J. The issues are stated by the commissioner. The order of the court sustaining the motion of defendant in error to dismiss this cause was erroneous. In an action of replevin both parties are actors. On the plaintiff’s failure to prosecute, the defendant becomes the real plaintiff in the action. (Aultman v. Reams, 9 Neb., 487; Moore v. Herron, 17 Neb., 697; Wilson v. Wheeler, 6 How.

Heard below before Wheeler, J. The facts are stated in the opinion. More than the mere preponderance of evidence is necessary to establish the claim that a deed absolute on its face is a mortgage. (Gadman v. Peter, 6 Sup. Ct. Rep. [U. S.], 957; Tilden v. Streeter, 8 N. W. Rep. [Mich.], 502; Hoioland v. Blake, 97 U. S., 624; Woodworth v. Carman, 43 la., 504; Walker v. Farmers Bank, 14 Atl. Rep. [Del.], 819; Satterfield v. Malone, 35 Fed. Rep., 451; Lance’s Appeal, 4 Atl.

Error from the district court of Hall county. Tried below before Harrison, J. The facts are stated in tbe opinion. The assured, J. Nelson Jones, has no standing or rights under the policy. The pleadings and evidence show that long prior to the loss he parted with all interest he may have had in the property. (McOlusJcey v. Providence Washington Ins. Co., 126 Mass., 306; ¿Etna Ins.

Heard below before Holcomb, J. The opinion contains a statement of the case.

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

<p>1. Satisfaction of Judgment. The district court may, on motion and satisfactory proof that a judgment had been fully paid or satisfied by the act of the parties thereto, order it discharged and canceled of record.</p> <p>2. Replevin: Alternative Judgment: Satisfaction. The plaintiff against whom in an action of replevin judgment had been rendered for the return of the property in dispute, or for the value ihereof in case it could not be returned, paid the amount of costs assessed against him, also the damage awarded for the wrongful detention of the property, and thereupon made a sufficient tender of said property to the defendant. Held, A discharge of the alternative judgment, and that satisfaction thereof should on his motion be entered of record.</p>

<p>Sufficiency of Evidence: Review. This case presents questions of fact only, and tlie judgment, being supported by sufficient evidence, should not be disturbed.</p>

Error from the district court of Gage county. Tried below before Babcooic, J. The defendant should be required to compensate plaintiff for damages as a. condition precedent to constructing and using a crossing over the latter’s right of way. {Nichols v. Arm Arbor & 7.

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

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

<p>1. Review: Assignments oe Error. To present for review errors alleged to have occurred during the trial of a cause the assignment should, in apt words, set forth some matter for which a motion for a new trial is authorized hy the Code of Civil Procedure.</p> <p>2. -: -. An assignment of error that “The verdict is contrary to the evidence and is so exceedingly small as to clearly appear to have been given under the influence of passion, prejudice, or undue means,” does not raise the question of error in assessment of the amount of the recovery by the jury independently, or aside from the consideration of the influence of passion, prejudice, or undue means.</p> <p>3 -: -. Neither is such question presented by the portion of the assignment quoted, contained in the foling words: “The verdict is contrary to the evidence.” Error in the assessment of the amount of recovery, whether too large or too small, has been specifically stated in the Code as one of the grounds of a motion for new trial (Code, sec. 314), from which it is clear that it was not included in either of the other causes.</p> <p>4. Railroad Companies: Damage to Residence Property: Verdict eor Plaintiee. Held, That a consideration of all the evidence discloses that the jury were not governed by passion, prejudice, or undue means in the assessment of the amount of recovery.</p> <p>5. Instructions: Repetitions. It is not error. to refuse to give an instruction requested in behalf of either party to a cause, where the subject-matter of the instruction is fully stated and explained in the charge of the court to the jury.</p> <p>6. -: Harmless Error. It is not error calling for a reversal of a judgment to give an instruction which could not, and it is clear did not, prejudice the rights of the complaining party.</p>

<p>1. Railroad Companies: Damages eob Killing Lite Stock: Negligence. Evidence examined, and held to present a question of negligence on the part of the defendant in the action, for the determination of the jury, and to support their finding on such question.</p> <p>2. Instructions: Harmless Error. The giving of an instruction which is not applicable to the issues or evidence in a case does not call for a reversal of the judgment when no prejudice' resulted to the rights of the complaining . party.</p> <p>3. -: Negligence. The refusal ’of the trial court to give certain instructions requested by plaintiff in error, examined and held not erroneous.</p> <p>4. -: Harmless Error. Where, in the trial of a cause, instructions are given which in substance- are objectionable and some of which are in conflict, but it appears that the jury were not misled thereby and no prejudice resulted to the rights of the complaining party, there is not sufficient cause for a reversal.</p>

<p>1. Negligence: Construction op Dangerous Buildings. The owner of real property in exercising his own tastes and inclinations as to the character of a building he will erect thereon, has no right to build and maintain a structure which, by reason of defects or inherent weakness either in material or construction, is liable to fall and do injury to an adjoining owner or the public.</p> <p>2. -: -: Damages. If a building falls because of defects in material and workmanship reasonably within the knowledge of the owner thereof, and thereby inflicts injury upon adjoining owners or their property or any person lawfully in its vicinity, the owner is liable for the damages ensuing therefrom.</p> <p>3. -: Cause op Injury. A party is only answerable for the natural, probable, reasonable, and proximate consequences of his acts; and where some new efficient cause intervenes, not set in motion by him, and not connected with, but independent of, his acts, not flowing therefrom, and not reasonably in the nature of things to be contemplated or foreseen by him, and produces the injury, it is the proximate and dominant cause.</p> <p>4. -: -. The question of the proximate cause of an* injury is one for the jury, but when their decision thereof is clearly and manifestly wrong it will be set aside.</p>

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

<p>.1. Proceedings in Error: Time. Proceedings in error may be commenced in the supreme court at any time within one year from the rendition of the judgment or decree, or final order sought to be reviewed.</p> <p>2. Sufficiency of Petition: Review. A motion for a new trial is unnecessary to present to this court the question whether the petition states a cause of action.</p> <p>3. Quieting Title: Pleading. The petition in an action to quiet title examined, and held to state a cause of action.</p> <p>4. Summons: Service by Publication: Proceeding to Open Judgment. To entitle a party to have a decree rendered against him upon service by publication opened, under section 82 of the Code, it must appear that he had no actual notice of the pendency of the action in time to interpose a defense.</p> <p>5. Notice of Proceeding to Open Judgment: Waiver. Notice of an application, under said section, to open a judgment or decree must be given to the adverse party; but where such party appears and resists the application, it is a waiver of formal notice.</p> <p>6. Quieting Title: Service by Publication. In an action to quiet title to real estate, service by publication may be made upon a non-resident defendant who cannot be summoned in tbe state.</p> <p>7. Summons: Affidavit for Service by Publication. Plaintiff’s cause of action is not required to be set forth in an affidavit for service by publication. It is sufficient if such affidavit states that the defendant is a non-resident of this state, and that service of summons cannot be had upon him therein, and facts showing the action to be one of those mentioned in section 77 of the Code, in which constructive service is authorized.</p> <p>8. -: Service by Publication: Waiver of Defects: Appearance. Where a decree is rendered upon service had by publication, and the defendant subsequently files an answer to the merits, and asks to have the decree opened under section 82 of the Code of Civil Procedure, such appearance is a waiver of all defects and irregularities in the service.</p> <p>9. Names of Parties: Errors: Waiver: Appearance. Except in actions specified in section 23 of the Code of Civil Procedure, it is bad pleading to describe the plaintiff or defendant by the initials only of his Christian name; but if so designated it is merely a misnomer, and if the defendant appears, or is personally served, and no objection on that ground is made in the trial court, the defect is waived.</p> <p>10. -: Judgments. In the absence of a showing to the contrary, it will not be presumed for the purpose of invalidating a judgment rendered against a defendant, that he has any other Christian name than the initials by which he was sued.</p> <p>11. Service by Publication: Defects: Proceeding to'Vacate Judgment. A decree rendered against a defendant upon service by publication alone, he having made no appearance in the cause, and the published notice requiring him to answer on or before a date anterior to the filing of the petition, instead of the third Monday after the completed service, as required by statute, may be set aside on motion of the defendant, as having been irregularly entered, under the provisions of section 602 et seq. of the Code of Civil Procedure. (Wilkins v. Wilkins, 26 Neb., 235.)</p>

Error from the district court of Douglas county. Tried below before Ambrose, J. The opinion contains a statement of the case. The appeal by Iszard from the decree of the district court and the filing of his bond did not divest the district court of power to hear the application and appoint a receiver.

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

<p>1. School Districts: Intoxicating Liquors: License Fees., Moneys arising from a license granted by a village for the-sale of intoxicating liquors belong to the school district in which such village is located, and must be applied to' the support of the common schools in said district.</p> <p>2.-: -: -: Mandamus. Mandamus will lie to compel a village treasurer to pay such moneys to the proper school district, even before the expiration of the municipal year for which such license was issued.</p>

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

<p>Conflicting Evidence: Review. A judgment rendered on a. verdict reached upon consideration of merely conflicting evidence will not he disturbed where there is presented on error proceedings no question other than the sufficiency of the evidence to sustain the verdict.</p>

<p>■1. Review: Judgments: Journal Entries. This court will not- review a judgment rendered by the district court prior to the formal entry of such judgment upon the journal of the trial court. (Ward v. Urmson, 40 Neb., 695.)</p> <p>2.-:,-:-. A memorandum of a judgment made by a judge of the district court upon his trial docket will not authorize a review thereof in this court before the extension of such judgment upon the journal of the district court, in apt language and in due form. (Ward v. Urmson, supra.)</p>

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

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

<p>Sufficiency of Evidence: Review. This appeal involves-only a question of fact. The record examined, and the conclusion reached that the decree of the district court is supported hy sufficient evidence.</p>

Ekrok. from tbe district court of Douglas county. Tried below before Scott, J. Tbe facts are stated by tbe commissioner. Tbe city is directly responsible for tbe unsafe condition of tbe street. It was tbe duty of tbe city to construct tlie sidewalk in front of the lot where the accident occurred. This duty could not be imposed upon the owner of the property.

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

<p>1. Executions: Exemptions: Appraisement: Duty of Officer. When an officer seizes property under execution or attachment, and the debtor makes and files an.inventory under oath in accordance with section 522 of the Code of Civil Procedure, the officer then has but one duty to perform, and that is to call appraisers and have the property levied upon appraised, and, if the appraised value of the property is five hundred dollars or less, release and return the property to the debtor.</p> <p>2.-: -: Unlawful Sale: Conversion. Where an officer makes a levy upon personal property, and the debtor files under oath the inventory required by section 522 of the Code of Civil Procedure, and the officer neglects or refuses to cause the property to be appraised, but proceeds to sell it to satisfy his writ, he is thereby guilty of the conversion of the property.</p> <p>3.-: -: Affidavit: Conversion. Where, in such case, the officer is sued for the conversion of such property, the fact that the averments, or any of them, in the affidavit attached to the inventory were false, affords him no defense to the action.</p> <p>4.-: Conversion: Damages. The only issue available in such an action is the value of the property wrongfully converted. Smith v. Johnson, 43 Neb., 754, and Bender v. Bame, 40 Neb., 521, reaffirmed.</p>

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

Error, from tbe district court of Gage county. Tried below before Babcock, J. The opinion contains a statement of the case. In an action for malicious prosecution a judgment of conviction against the plaintiff is prima facie evidence that there was probable cause for the prosecution, but such evidence may be rebutted by proof that the judgment was based upon false testimony and was without foundation in law.

<p>1. Divorce: Evidence: Collusion. In an action for divorce, even where there is no appearance by the defendant, the trial judge must be satisfied that the case is prosecuted in good faith and without collusion, and that a cause of action exists. He is not bound to accept as conclusive, in all cases, the testimony of the plaintiff, although corroborated in some minor details.</p> <p>2. -: -- — : Review. Where - the testimony in. such a. case, when taken in connection with all the circumstances, is weak and open to suspicion, through a failure to corroborate it on points admitting of corroboration, the action of the district judge in denying a divorce-will ' not be set aside, although the. evidence may have been such that it would have sustained a decree for plaintiff, and in cases of a diuerent character might have required it.</p>

Error from the district court of Douglas county.. Tried below before Ferguson, J. See opinion for statement of the case. Defendant below was entitled to a verdict under the evidence in this case and the court should have so instructed the jury. The release executed by Price upon the last payment was a complete satisfaction of the demand.

Error from the district court of Saunders county. Tried below before Wheeler, J. The facts are stated by the commissioner. Railroad companies are under no obligations to stop their trains, or to slacken the speed, in order to deliver trespassing animals from peril. It was not the duty of the engineer to keep a lookout for cattle.

<p>1. Death by Wrongful Act: Damages: Verdict for Plaintiff. Evidence in an action by an administrator for injuries causing the death of his decedent examined, and held sufficient to sustain the verdict.</p> <p>2. -: -: - — : Evidence. A verdict of $2,400 in such a case held not so clearly excessive as to warrant a reversal, where the deceased was a boy seventeen years old, a competent compositor, able to earn four dollars a day, and his next of kin his father, forty-six years old, a poor man with four younger children, although there was no evidence that the son had as yet supplied his father with any considerable amounts of money.</p> <p>3. Review: Assignments of Error. Other questions raised not being supported by any sufficient assignments in the motion for a new trial or petition in error, not considered.</p>

<p>Conflicting Evidence: Review. The only question presented being one of fact, as to which the evidence is conflicting and apparently evenly balanced, the finding and judgment of the district court should not be disturbed.</p>

<p>1. Judgments: Joint Defendants: Agreement to Exhaust Individual Property: Execution: Injunction. The agreement in this case, quoted in full in the opinion, construed to be one by which the judgment creditor bound himself to first make levy, or cause it to be made, on the property of a designated one of the judgment debtors, within the jurisdiction of the court in which the judgment was rendered and to sell or exhaust the property of this particularly specified debtor for the satisfaction of a balance of tne judgment remaining unpaid, before resorting to or causing levy of execution to be made on property belonging to either of the other debtors.</p> <p>2. Injunction: Execution: Wrongful Levy. Held, That injunction was the appropriate and proper remedy for an attempted violation of the agreement, consisting of a levy and proposed sale of the property of one of the debtors favored by its terms, when it appeared at the time there was property of the debtor, from whose property the judgment was first to be satisfied, within the jurisdiction of the judgment court and subject to execution.</p> <p>3. Executions: Injunction: Estoppel. Certain acts and statements of one of the favored debtors reviewed and-held not to constitute a waiver of his rights under and by virtue of the agreement, or to estop him from asserting them.</p> <p>4. -: -: Costs. The decree held not to be objectionable as restraining the levy and enforcement of the execution in the part thereof with reference to the costs of the case in which the judgment was rendered.</p> <p>5. -: -. The decree and injunction thereby accorded held too broad in that it restrained the sale of any of the property of the one debtor until all the property of the other was exhausted, and that it should have been confined to restraining a levy or sale under the execution herein involved and to this extent it is modified and, as modified, affirmed.</p>

<p>Error from tlie district court of Thurston county. Tried below'before Norris, J.</p>

<p>1. Res Judicata: Execution: Wrongful Levy: Judgment Against Officer: Action on Bond: Damages. Where an officer holding an execution issued on a judgment against A, hy virtue of such execution seizes the property of B, and the latter recovers a judgment against such officer for the value of the property seized, then, in a suit by B against such officer and the sureties on his official bond to recover the amount of the judgment, such judgment is conclusive evidence against the officer : and his sureties as to B’s ownership of the property at the time it was seized by the officer, the amount of the damages and costs sustained by B by reason thereof, in the absence of a showing that the court had no jurisdiction to pronounce the judgment or that it was procured by fraud or collusion. Thomas v. Marlcman, 43 Neb., 823, followed.</p> <p>2. Sheriffs and Constables: Action on Bond: Pleading. And in the suit against the officer and his sureties it is immaterial that the officer was not designated as such in the pleadings or judgment of the suit brought against him by the owner of the property.</p> <p>3.-: -: -: Evidence. And the pleadings and judgment in the action brought by the owner against the officer are competent and relevant evidence in the suit against the officer and his sureties, although such pleadings and judgment show that the owner’s suit against the officer was prosecuted and judgment rendered jointly against him and another.</p>

<p>1. Trespassing Animals: Distrainor’s Lien: Herd Law, One taking up stock trespassing upon his cultivated lands must, in order to preserve the lien allowed for his damages, comply substantially with the provisions of our herd law. (Compiled Statutes, ch. 2, art. 3.)</p> <p>2.-: -: Notice. The question of the reasonable ness of the notice required to he given the owner of stock so taken up, if known, is generally one of fact depending upon the circumstances of the particular case.</p>

<p>Pleading: Verdict: Ejectment. A verdict in order to sustain a judgment must respond to the issues made by the pleadings, or to the allegations of the successful party.</p>

<p>1. Review: Issues Not Raised Below. Cases will, as a rule, be reviewed in this court upon tbe theory upon which they are prosecuted or defended in the court of original jurisdiction.</p> <p>2. -: -: Conversion: Recoupment: Waiver. One who in an action for the conversion of personal property defends upon the sole ground of his alleged superior title, and by his conduct disclaims any special interest in such property or lien thereon, will not, on petition in error in this court, be heard to complain on the ground that he should have been permitted to recoup the amount of a lien existing in his favor upon the property in controversy against the damages awarded for its conversion.</p>

<p>1. Fraud: Pleading. In pleading fraud it is necessary to se.t out the facts relied upon for relief. Mere epithets or conclusions of fraud, without any statement of the facts upon which such charge is predicated, are insufficient.</p> <p>2. Negotiable Instruments: Fraud: Consideration: Pleading. Answer examined and held to charge a failure of consideration only and not fraud in the inception of the notes sued upon.</p> <p>3.-; Indorsements: Consideration: Burden oe Proof. Where the only defense alleged in an action by the indorsee of a promissory note is the failure of consideration, the burden is upon the defendant to overcome the presumption that such note was transferred before due, for value, in the usual course of business. (Tiolet v. Bose, 39 Neb., 660; Kelman v. Oalhown, 43 Neb., 157.)</p>

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

<p>1. Patent for Rand: Collateral Attack: Evidence. The presumptions arise from the existence of a patent evidencing a grant of land from the United States, that all acts have been performed and all facts have been shown to exist which are prerequisites to its issuance, and that the right of the party grantee therein to have it issue has been presented to and passed upon by the proper officers; and such patent is not open to collateral attack.</p> <p>2. Deeds: Town Site Act: Evidence: Ejectment. Where property has been conveyed under the provisions of the act of congress of May 22, 1844, which may be termed the “Town Site Act” (see 5 United States Statutes at Large, 657), by the United States to the corporate authorities of a town or city, or a trustee designated by law, a deed executed by the trustee or the party authorized by law to make tbe transfer, evidences tbe determination, by the party executing it, that all tbe preliminary steps have been taken and necessary requirements complied with, and that tbe person to whom tbe deed runs is tbe one entitled to receive it, and the question of tbe validity of tbe deed cannot be litigated in a collateral proceeding.</p> <p>3. Office and Officers: Evidence. It is a presumption of law that every person performs his duty as an official until tbe contrary is shown.</p> <p>4. Deeds: Erroneous Reference to Statute. A correct designation, in a deed, of tbe legislative act under and by virtue of which it was executed, held, not essential to tbe validity of tbe deed.</p> <p>5. Evidence: Records: Identification. A page of a book was identified as a part of the records of tbe minutes of tbe meetings of tbe “Grandview Company.” Held, Not an identification or foundation for its introduction as showing proceedings bad by tbe board of trustees of tbe “City of Grandview.”</p> <p>€. Deeds: Execution by Trustee of City: Evidence: Ejectment. Deeds were executed purporting to be conveyances of real property by tbe trustees of the city of Grand View, which were signed “A. B. Moore, chairman.” Eeld, That without proof that A. B. Moore who signed tbe deeds was chairman of tbe board of trustees of tbe city of Grand View, tbe deeds did not evidence tbe transfer purported to be made.</p>