Volume 48 — Nebraska Reports

Error from the district court of Johnson county. Tried below before Bush, J. The opinion contains a statement of the case. The sureties are released because the evidence fails to bring their liability within the conditions of the bond.

Error from the district court of Madison county. Tried below before Allen, J. The warrants attached to the tax-books were not liens on the property in controversy when the mortgages were given. (Hill v. Figley, 23 Ill., 418; Binkert v. Wabash R. Go., 98 Ill., 218; Ream v. Stone, 102 Ill., 364; Hill v. Palmer, 32 Neb., 632.)

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

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

Error from tbe district court of Douglas county. Tried below before Keysor, J. Tbe facts are stated in tbe opinion. Permitting a reply to be filed during a trial is a ground for continuance where new issues are raised. (Taylor v. Hefner, 4 Blackf. [Ind.], 387*.) Mere knowledge of tbe seller that tbe buyer intends to put tbe goods to an unlawful use, where they may be lawfully used, will not make tbe sale illegal or prevent tbe recovery of tbe purchase price.

<p>Criminal Law: Inpokmations Filed in Vacation: Habeas Corpus. Under tlie provisions of chapter 108 of the Laws of Nebraska passed in 1885, the requirement that “all informations shall he filgd during term, in the court having jurisdiction of the offense specified therein,” is mandatory, and an information, upon which the accused is tp he tried for felony, is void if filed in vacation.</p>

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

<p>Appeal from the district court of Douglas county. Tried below before Irvine and Walton, JJ.</p>

<p>Appeal from th.e district court of Buffalo county. Heard below before Holcomb, J.</p> <p>References:' Mansfield v. Gregory, 8 Neb., 432; Wright v. Smith, 11 Neb., 343; Gollingwood v. Broion, 10 S. E. Rep. [N. Oar.], 868;- Norton v. Birge, 35 Conn., 250; Hoyt v. Jones, 31 Wis., 399; Day v. Thompson, 11 Neb., 123; Sterns v. O’Connell, 35 N. Y., 109; Foorman v. Wallace, 17 Pac. Rep. [Cal.], 681; Gassert? v. Hendrick, 16 Pac. Rep. [Cal.], 242; Frey v. Clifford, 44 Cal., 335; Sehluter v. Harvey, 65 Cal., 158; Hannahs v. Felt, 15 la., 143; Garter v. Champion, 8 Conn., 549; Peck v. Webber, 7 How. [Miss.], 658; People v. Cameron, 7 Ill., 468; Lyon v. Sand-ford, 5 Conn., 544; Munroe v. Luke, 19 Pick. [Mass.], 41; Lincoln Rapid Transit Co. v. Bundle, 34 Neb., 559.</p> <p>References: Harral v. Gray, 10 Neb., 18Q;'Galway v. Malchoio, 7 Neb., 285; Mansfield v. Gregory, 8 Neb., 432, 11 Neb., 297; Hubbart v. Wallcer, 19 Neb., 94; Keeling v. Hoyt, 31 Neb., 453.</p>

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

<p>1. Surface Water: Damages. The doctrine of this court is the rule of the common law, that surface water is a common enemy, and an owner may defend his premises against it hy dike or embankment, and if damages result to an adjoining proprietor hy reason of such defense, he is not liable therefor.. .</p> <p>2. -: -: Negligence. But this rule is a general one and subject to another common law rule, that a proprietor must so use his own property as not to unnecessarily and negligently injure his neighbor.</p> <p>3. -: ———: -. And therefore every proprietor may lawfully improve his property by doing what is reasonably necessary for that purpose, and unless guilty of some act of negligence in the manner of its execution, will not be answerable to an adjoining proprietor although he may thereby cause the surface water to flow on the premises of the latter to his damage; hut if in the execution of such enterprise he is guilty of negligence, which is the natural and proximate cause of injury to his neighbor, he is accountable therefor. Anheuser-Busch Brewing Association v. Peterson, 41 Neb., 897; Lincoln Street R. Go. v. Adams, 41 Neb., 737; Lincoln & B. H. R. Go. v. Stitherland, 44 Neb., 526; Oity of Beatrice v. Leary, 45 Neb., 149, and Jacobson v. Pan Boenmg, 48 Neb., 80, followed and afflrmed.</p> <p>4. "Witnesses: MesiobaNda. A memorandum which it appears was prepared at the time of the fact in question or soon afterwards, which the witness knew to he correct at the time it was made, may he used by the witness to refresh his memory. (Atchison, T. & 8. F. R. Go. v. Lawler, 40 Neb., 356.)</p>

<p>1. Surface Water: Damages. In this state the common law rule prevails that a proprietor may, by harriers or otherwise, protect his land from surface water coming from or across adjacent lands, and for injuries occasioned to others from a proper exercise of that right, he is not responsible. Morrissey v. Chicago, B. & Q. R. Go., 38 Neb., 406, followed.</p> <p>2. -: Negligence: Damages. If in the execution of such object such proprietor is guilty of negligence which is the natural and proximate cause of injury to the adjoining proprietor, he is accountable therefor. Anheuser-Busch Brewing Association v. Peterson, 41 Neb., 897, followed.</p> <p>3. -: -: -. One may not accumulate surface waters on his own land and by means of a ditch discharge them in a volume upon the land of another. Fremont, E. & M. 7. R. Go. v. Marley, 25 Neb., 138, followed.</p> <p>4. -: -: -. The former decisions of this court reviewed, and held, to be in harmony with the foregoing principles.</p> <p>5. -: -: Injunction. Against a continuing injury to land caused by an unlawful discharge of surface waters by an adjoining proprietor, equity will afford relief by injunction.</p> <p>6. -: -: -: Damages: Evidence. In such case it is not necessary for the plaintiff to prove that actual injury occurred before the suit was brought. The remedy is in such case preventive, and will be granted on proof that the acts complained of, unless restrained, will result in damage.</p> <p>7.-: -: -. To such an action it is no defense that the injury is in part threatened by the acts of another. The plaintiff has his remedy against each one contributing thereto.</p> <p>8. Actions: Malice. Where one has a valid cause of action against another, his motive in instituting it is immaterial, and the fact that it is inspired by malice is no defense.</p>

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

Heard below before Babcock, J. The facts are stated by the commissioner. A right of drainage through the lands of another is an easement requiring for its enjoyment an interest in lands which cannot be conferred by parol.

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

Tried below before Bush, J. Tbe facts appear in tbe opinion. In absence of an information and an opportunity to defend, tbe finding and judgment against plaintiff in error axe erroneous. Tbe court erred in finding plaintiff in error guilty of contempt for filing an affidavit wbicb only set forth facts having a tendency to show prejudice on part of the judge. The judgment imposing a fine and imprisonment is not based upon findings of fact, and is therefore erroneous.

Heard below before Hall, J. Tbe opinion contains a statement of tbe case. There can be no partition of property owned in sever-alty.

<p>1. Pleading: Peactice. Where a petition contains several causes of action the trial court should, on the motion of the defendant, require them to he separately stated and numbered. (Schuyler Nat. Bank v. Bollong, 24 Neb., 821.)</p> <p>2. Contracts: Fbatjd: Rescission: Retubn oe Peopeetv. One who seeks to rescind a contract on the ground of fraud must, within a reasonable time, offer to return the property or consideration therefór received by him, provided it be of any value.</p> <p>3. -:-: -: -. Property, the loss of which would in any way result in disadvantage or inconvenience to the adverse party, must, in such case, be returned although it possesses no intrinsic or market value.</p> <p>4. Building and Loan Associations: Sale oe Stock: Pbato: Rescission. The plaintiff, a subscriber to the stock of a foreign building and loan association, sued to recover money paid for such stock, alleging a rescission of his contract of subscription on account of the false and fraudulent representations of the defendant’s agent. Held, In the absence of evidence to the contrary, that said stock is presumed to be of some value and its surrender is a condition precedent to the right to rescind.</p>

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

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

<p>1. Intoxicating Liquors: License Fees: Payment. There exists no authority in this state to grant license to sell intoxicating liquors without payment in full of the fee prescribed by law, and.a license issued without such payment of the fee is invalid.</p> <p>2. Malicious Prosecution. A person may institute a criminal prosecution when the apparent facts are sufficient to induce a discreet and prudent-person to believe that the party to be accused has committed the crime with which he is to be charged, and although the accused may be adjudged innocent, the complainant will not be liable in an action for malicious prosecution.</p> <p>3. Arrest Without Warrant. “Every sheriff, deputy sheriff, constable, marshal, or deputy marshal, watchman, or police officer shall arrest and detain any person found violating any law of this state, or any legal ordinance of any city or incorporated village, until a legal warrant can be obtained.” (See Criminal Code, sec. 283.)</p> <p>4. Action to Recover Damages for Malicious Prosecution: Veedict eoe Plaintiee. Evidence examined, and held insufficient to support the verdict.</p>

<p>1. Vendors’ Liens: Mechanics’ Liens: Pbiobities. A person who furnishes materials for use in the erection of buildings on land to one in possession thereof under contract of sale may acquire a mechanic’s lien on the premises for any unpaid amount of the price of the materials, hut if there is no agreement between the vendor and vendee of the land that the improvements shall be made, the lien can only attach to the interest of the vendee and will be subsequent and inferior to the lien of the vendor for any balance of the purchase price for the land remaining unpaid.</p> <p>2. Conflicting Evidence: Review.' A finding of a trial court on a point in respect to which the evidence is conflicting, hut which there is sufficient evidence to sustain, will not he disturbed.</p>

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

<p>1. Replevin: Title oe Third Pebson. It is a good defense to an action in replevin to prove title and right of possession in a third person.</p> <p>2. Chattel Mortgages: Failure to Register. ' A chattel mortgage is good between the parties thereto, and all others, except creditors of the mortgagor or subsequent purchasers and mortgagees in good faith, though not filed as required by statute.</p> <p>3. -: Consideration. Extension of time for the payment of a debt is a sufficient consideration for a chattel mortgage given by the debtor to secure such indebtedness.</p> <p>4. Res Judicata: Parties. A judgment is binding upon the parties thereto and their privies, as to the issues adjudicated.</p> <p>5. Landlord and Tenant: Removal oe Trade-Fixtures. In the absence of an agreement or consent of the landlord, a tenant cannot remove trade-fixtures after the expiration of the tenancy, or after the tenant has surrendered possession. (Friedlander v. Ryder, 30 Neb., 783.)</p> <p>6. Chattel Mortgages: Removal oe Fixtures. A chattel mortgagee has no greater rights than a tenant to remove mortgaged fixtures after the tenant has quit possession. Free v. Stuart, 39 Neb., 220, followed.</p>

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

<p>1. Judgment on Pleadings. It is error to render a judgment for the plaintiff upon the pleadings, without evidence, for a larger sum than is hy the answer admitted to be due him.</p> <p>2. -: Awsweb. When a cause is decided by the court on the petition and answer, without evidence, such matters of defense in the answer as are well pleaded, in the absence of a reply, are to be considered as established.</p> <p>3. Action on Supersedeas Bond: Set-Oee. In an action upon a super-sedeas bond against the principal and sureties thereon, a legal claim due from the plaintiff to such principal may be pleaded as a set-off.</p> <p>4. -: Form oe Judgment. In such an action a judgment for the plaintiff should, under section 511 of the Code of Civil Procedure, state which defendant is the principal debtor -and which are sureties.</p> <p>5. -: -. Mannagan v. Cleveland-, 44 Ñeb., 58, distinguished.</p>

Error from the district court of Douglas county. Tried below before Walton, J. The opinion contains a statement of tte case. There is no proof of mental weakness or loss of understanding at the time of making the deed, immediately before, nor at any time thereafter, sufficient to nullify the deed.

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

<p>1. Review: Refusal to Make Funding. No ground of complaint is presented by the refusal of the court to make a finding in support of which there had been offered no sufficient evidence.</p> <p>2. Treasurer’s Deeds. A county treasurer’s tax deed under the present condition of the statutes of this state is invalid either with or without a seal.</p> <p>3. Void Tax Deeds: Holders of Tax Liens: Reimbursement: Subro-gation. Where a tax deed of the treasurer is invalid because no seal of the treasurer is attached thereto or because the statute authorizes no such seal, the holder thereof is entitled to reimbursement for the amount of such taxes as he has paid upon his ' purchase, and subsequent taxes properly paid, and in respect thereto to be subrogated to the rights of the public as to the liens of such taxes and interest.</p>

<p>Tax Liens: Fokeclosuke: Validity of Tax Sale. While the holder of a certificate of purchase at a tax sale may foreclose his lien when the tax deed issued pursuant thereto is invalid by reason of an irregularity in the proceedings leading up to such sale, this rule cannot be invoked, when, in his petition, such purchaser alleges that the treasurer made the sale to him without authority of law and without any jurisdiction in the premises.</p>

<p>■Questions of Pact: Evidence: Instructions: Review. Wlien there is involved merely a question of fact, its determination rests with the jury, and the district court is therefore held properly to have admitted evidence to establish such fact and properly to have refused to instruct, upon request, that, from certain evidence stated, a certain presumption arose and that certain other evidence stated established other facts.</p>

Error from the district court of Loup county. Tried below before Thompson, J. Where defendant is not guilty of negligence or laches and has filed a sufficient affidavit for a continuance on the ground that his witnesses are absent, he should not be compelled to go to trial because the plaintiff admits that the absent witnesses, if present, would testify as alleged in the affidavit, and it is error to permit the plaintiff to introduce witnesses to contradict the facts thus…

Tried below before Scott, J. Tbe facts are stated in tbe opinion. Tbe plea in abatement was based on tbe fact that in tbe original complaint, wbicb was type-written and upon wbicb Hoover was bound over to tbe district court, tbe word “purposely” was interlined in some person’s band-writing. An evident alteration of an instrument is generally presumed to bave been made after tbe execution thereof.

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

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

Error from the district court of Webster county. Tried below before Beall, J. Where an insolvent mercantile firm sells all its available property to one who is execution proof, and takes in payment Ms unsecured, long-time notes, it is a fraud on other creditors. {Pilling v. Otis, 13 Wis., 533; Knowlton v. Haioes, 10 Neb., 534; Beels v. Flynn, 28 Neb., 575; Seymour v. Wilson, 19 N. Y., 417; Smith v. Sands, 17 Neb., 498.)

<p>1. Highways: Petition to Open: County Board. A petition is not essential to confer jurisdiction upon a county board to open section line roads under section 46, chapter 78, Compiled Statutes. The only limitation upon the discretion of the board in that respect is the fundamental one of compensation for private property taken or damaged. Itose v. Washington Cowity, 42 Neb., 1, followed.</p> <p>2. -: Order to Open. An order of a board of supervisors instructing the county clerk to cause a section line road to be resurveyed and to enter such survey when made of record is not an order for the opening of such section line road within the meaning of said section 46.</p> <p>3. -: Dedication oe Land: Evidence. The evidence examined, and held to sustain the finding of the district court that the defendant in error had not dedicated certain real estate to the public for use as a highway.</p>

<p>1. Contracts: Pleading: Burden of Proof. When suit is brought upon a contract, a general denial puts the making of the contract in issue, and the burden devolves upon the plaintiff of establishing it substantially as alleged.</p> <p>2. Subscriptions: Pleading: Evidence: Principal and Agent: Instructions. Suit was brought on a subscription contract, alleging an absolute subscription. The answer contained a general denial. The evidence tended to show that the defendant had authorized the plaintiff’s solicitor to enter his name for a certain amount subject to certain conditions; and that the solicitor had subscribed defendant’s name without embodying such conditions in the contract. Held, (a) That the issue presented was not whether there had been a breach of the conditions which would constitute a defense, but was whether the defendant had authorized the contract which the solicitor had undertaken to make for him; (6) that the defendant was not bound by the acts of plaintiff’s solicitor beyond the actual authority conferred upon him; (c) that the defendant was entitled to have this theory of the case submitted to the jury.</p> <p>3. Evidence: Lost Books: Subscription. The book in which the subscription was entered was proved to have been lost. Held, That the plaintiff might prove its contents by parol evidence, although there were in existence similar books also used for subscription purposes, substantially like the one in question, and not offered in evidence.</p>

<p>1. Action on Bank Deposit: Tbial: Pleading: Amendment by AGREEMENT: Practice. H. sued the T. Bank on a deposit. The hank answered by a general denial. During the trial, it undertook to-prove payment. Objection being made to the relevancy of the proof, an agreement was made in open court whereby the bank was allowed twenty days to amend its answer “in any manner,” with the same effect as if presently filed, and the trial proceeded. The instructions given excluded from the jury the consideration of the issue of payment which was finally tendered by the amended answer, filed after trial, but within the stipulated time. Held, That the plaintiff was bound by the terms of his stipulation, and that the judgment must be reversed for failure to submit the issues finally framed, to the jury.</p> <p>2. Practice: Trial. The practice of proceeding with a trial subject to a future amendment of the pleadings, criticised.</p>

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

Error from the district court of Douglas county. Tried below before Scott, J. See opinion for statement of the case. Speed alone, uncoupled with any other fact or circumstance, is insufficient to show gross negligence on part of a railroad company.

<p>1. Landlord and Tenant: Evidence of Contbact. The relation oí landlord and tenant, like other contract relations, does not necessarily depend upon an express agreement, hut may be implied from the conduct of the parties.</p> <p>2. Tenant from Year to Year: Evidence. A general'occupancy by one other than the owner of land will be treated as a tenancy from year to year, whenever the reservation of rent or other , circumstances plainly indicate an agreement for an annual holding.</p> <p>3. -: Termination of Tenancy. , The tenancy can, in such case, be terminated only by agreement, express or implied, or by notice for the time and in the manner prescribed by law.</p>

<p>1. Action for Wages: Verdict for Plaintiff. Evidence, although conflicting, helé to sustain the verdict and judgment complained of.</p> <p>2. Evidence: Collateral Pacts. Evidence of collateral facts corroborative of the statements of parties with respect to the principal contention is confined to such transactions as shed some real light upon the question at issue. As a rule, the circumstances surrounding the parties, their relations toward each other and the subject of the controversy at the time of the transaction involved, are proper subjects of proof.</p> <p>3. Wages: Special Contract: Evidence: Collateral Pacts. In an action to recover for services rendered under a special contract the defense alleged was that such services were by agreement performed as an equivalent for the plaintiff’s board and lodging during the period named. Evidence that on or about the date of the agreement alleged by the defendant a third person, in his (defendant’s) presence and hearing, offered to employ the plaintiff at substantial wages for worli of the same general character, was rightly admitted as bearing upon the reasonableness of the plaintiff’s claim, and in some degree corroborative of the plaintiff’s testimony.</p>

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

<p>Conflicting Evidence: Review. Evidence, although conflicting, hold sufficient to sustain the order appealed from.</p>

<p>Appeal from the district court of Cass county. Heard below before Ci-iapman, J. i</p>

<p>1. Witnesses: Former Trial: Recollection oe Testimony oe Deceased Person. The evidence of a witness, given or used on the trial of a cause and who has since died, is competent on a subsequent trial of the same action, and where not in the form of deposition or preserved in any manner prescribed or contemplated by law, may be stated by any person who heard it given and who recollects and can state it substantially.</p> <p>2. --: -. Before a witness can be allowed to give his recollection of the evidence of a deceased witness, it must be shown, as a foundation for the introduction of such evidence in such manner, that it was given or taken for use in a former action between the same litigants, that the party against whom it was given had, from the manner of its reception, an opportunity to cross-examine the deceased witness, that it involved the same subject-matter, and that the witness called to state it recollects and can repeat in substance the evidence of the deceasd witness.</p> <p>5. -: -: -. Where, in a trial before the judge of a district court without the intervention of a jury, a witness was allowed to state his recollection of the evidence of a witness given at a former trial of the case who had since died, no sufficient foundation having first been laid for the introduction of the evidence in such manner, and the witness making statements in giving his evidence, which would have completed the foundation for its introduction, it renders the evidence competent for consideration in the determination of the issues in the action and cures the error, if any, committed by its admission.</p> <p>4. Ejectment: Void Tax Deeds. A void tax deed affords color of title in an action of ejectment in which adverse possession of real estate for the statutory period of ten years is relied upon as a defense.</p> <p>6.-: Advebse Possession: Statute oe Limitations. To establish title to real property in this state by virtue of the operation of the statute of limitations there must have been maintained by the party asserting it an actual, continuous, notorious, and adverse possession of the premises under claim of ownership during the full period required by the statute. (Gatling v. Lane, 17 Neb., 77; Lantry v. Parker, 37 Neb., 353.)</p> <p>6.-:-: -. The evidence in this case examined, and held to show such acts in respect to a piece of land not suitable to general farming purposes, but fit for grazing, and a portion of which was what is termed “hay land,” as constituted actual, continued, notorious, and adverse possession for the time required by statute.</p>

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

<p>Conversion: Return of Goods: Mitigation oe Damages. An owner or party entitled to goods which have been converted who subsequently has them, or a portioh thereof, returned to him or receives a portion of the proceeds of a sale of the goods or some of them, is not thereby barred of his rights of action for the original wrongful taking but proof of such facts, or either of them, will be available in mitigation of damages.</p> <p>2. Defenses. The fact that property has been taken from a party wlio converted it, under or by virtue of legal process, or in. any manner, presents no defense to an action against him by the owner or person entitled to it, for its conversion, unless it further be shown that such owner or person entitled to the property has. received it or the proceeds of any sale which may have been made of it.</p> <p>3. -: Measure oe Damages. The measure of damages in an action of conversion, by the mortgagee of personal property, against the sheriff or other officer who has levied and taken the property by virtue of the process issued in favor of creditors of the mortgagor, is the actual market value of the property when converted, with interest thereon from such time, deducting therefrom the market value of any of the property afterwards returned to the mortgagee or which he has received, or the proceeds of any of the property of which he has received the advantage, and not in any event to-exceed the amount due on the mortgage debt.</p> <p>4. --. As to the conclusions stated in the three foregoing paragraphs, the decision on the former hearing of this case reported in. 35 Neb., 492, approved and followed.</p> <p>5. Law of the Case: Ineertor Courts: Review. The determinations of questions presented to this court in its review of the proceedings, of an inferior tribunal become the law of the case, and, ordinarily, will not be re-examined in a subsequent review of the proceedings of the inferior tribunal on a second trial or hearing of the cause.</p> <p>6. Review: Assignments oe Error. In order to present for review the-rulings of a trial judge in excluding testimony the particular rulings complained of must be referred to in the petition in error.</p> <p>7. Conversion: Sale oe Goods: Proceeds: Evidence. Held, That there-was no evidence from which it can be determined whether the mortgagee had received the benefit or should be charged with the proceeds of certain property sold by a receiver and for the conversion of which the mortgagee was in this action asking a recovery.</p> <p>8. Constitutional Law: Right oe Aereat,: Aeeirmance: Penalty. “Under the constitution of 1875, a party may, as a right, have a cause reviewed either by appeal or on error, in the court of last resort, and the legislature has no authority to impose a penalty of five per cent upon the affirmance of the judgment.” Moore v. Herron, 17 Neb., 703, followed.</p>

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

Ekrob, from the district court of Keith county. Tried below before Neville, J. The facts and issues are stated in the opinion. The evidence should have been passed upon by the jury, and it was error to direct a verdict for plaintiff.

<p>1. Instructions: Exceptions. Exceptions should be taken separately to instructions, and not en masse.</p> <p>2. -:-: Review. An exception to instructions numbered 1, 2, 3, 4, 5, 6, 7, 8, and 9, given by the court to the jury on its own motion, is in substance and effect a general exception to the whole charge, consisting of nine paragraphs, and such exception is not available on review, if any one of the instructions was correct and free from criticism.</p> <p>3. —-•: Assumption oe Fact. It is not reversible error to refuse an instruction based on an assumption of fact in issue in the case.</p> <p>4. Negotiable Instruments: Considebation. A lack of consideration is no defense to negotiable paper in the hands of an innocent purchaser for value in the usual course of business before maturity.</p>

Error from tbe district court of Douglas county. Tried below before Dueeie, J. Tbe opinion contains a statement of tbe case. 1. Tbe county board as an executive or administrative body bad no power to comply with tbe demand of Keller and Doane for tbe return of tbe money paid by them on account of tbe purchase of the lots in Douglas Addition.

<p>Counties: Void Sale oe Land: Pukchase Money. This case is controlled by the decision in Steriberg v. State, 48 Neb., 299, decided herewith.</p>

<p>1. Names: Account. In an action upon an account tlie plaintiff should sue in his Christian name, instead of his initial letters.</p> <p>2.-: Objections: Appeal. Objection that a plaintiff has not sued in his full Christian name may be made at any time before judgment, even in the district court on appeal.</p> <p>3. Husband and Wife: Necessabies: Wife’s Sepabate Estate. Under section 1, chapter 53, Compiled Statutes, the wife is surety for her husband for the payment of debts contracted for necessaries for the family, but her separate estate is not chargeable until after a judgment has been obtained against the husband for such indebtedness, and an execution issued thereon returned unsatisfied.</p> <p>4. -:-:-. Held, That the verdict is without evidence to support it.</p>

<p>1. Mechanics’ Liens: CONTRACTS. The right to a lien secured hy the-provisions of section 2, article 1, chapter 54, Compiled Statutes, does not depend upon the terms of the contract between the owner of the building and the original contractor, but upon the ground that the subcontractor furnished materials or performed labor in the erection of the building, and that he has complied with the-requirements of said section.</p> <p>2. -: Subcontractors. To entitle a subcontractor to a lien, he-must file in the office of the county clerk, within sixty days from the date of the last item of material furnished or labor performed, the sworn statement required by said section 2.</p> <p>3. -: Degree for Defendants. Evidence examined, and held to. sustain the decree of the district court refusing plaintiffs a lien.</p>

<p>1. Restraining Order: Supersedeas. The provisions of section 677 et scq. of the Code of Civil Procedure, providing for the execution of a supersedeas bond upon the dissolution of a temporary injunction, have no application to a mere restraining order granted to prevent the commission of an act until a hearing can be had upon an application for a temporary injunction.</p> <p>2. -: Cottntt Judge. A county judge possesses the power to allow a restraining order pending a hearing of an application for a temporary injunctional order.</p> <p>2. -: Time. A restraining order ceases to be operative on the expiration of the date fixed by its terms.</p> <p>4. -: Undertaking. An order granting a temporary injunction does not become effective until an undertaking is executed by the party applying for the writ.</p> <p>5. -: -. A bond given to secure a restraining order will not give effect to a temporary injunction subsequently allowed in tbe same case. A new bond must be executed on tbe granting of tbe latter order.</p> <p>6.-: -. Where a temporary injunction bas never been operative, owing to tbe failure to give tbe undertaking required by statute, the giving of a supersedeas bond, upon tbe dismissal of tbe suit by tbe court, would not give tbe order of injunction any validity.</p>

<p>Review: Sufficiency oe Evidence: Bill oe Exceptions. Where there is presented by appeal only the sufficiency of the evidence to sustain the judgment of the district court, such judgment will be affirmed when there is to be found in the record no bill of exceptions.</p>

Heard below before Hall, J. Tbe facts and issues appear in tbe statement of tbe commissioner. It is essential to tbe validity of a judgment that tbe court find, either specially or generally, upon tbe facts in controversy.

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

<p>Review: Defective Recokd. This court cannot determine that the ruling of the district court upon a motion was without justification, when there is presented for review neither the motion nor the proofs submitted in support of it.</p>

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

<p>Fraudulent Conveyances: Chattel Moktgages. A chattel mortgage which covered all the property of an insolvent debtor, executed under an agreement between the parties thereto that the mortgage should not be filed for record, that the mortgagee should take formal possession of the mortgaged property and hold possession thereof for the benefit and subject to the direction of the mortgagor until by sale or lease of the mortgaged property to the advantage of the mortgagor the debt secured should be paid, and then account to the mortgagor for tbe balance, held fraudulent as to other creditors of the mortgagor who are plaintiffs in this action.</p>

<p>Conflict of Laws: Contracts: Forum of Jurisdiction. Suit on a promissory note. Defense: Consideration for the note, a loan of money made by appellee to appellants at a usurious rate of interest, and that the contract was made in the state of New York and void under the laws thereof. Evidence set out at length in the opinion and held to sustain the finding of the district court that the contract between the parties was made in, and governed by the laws of, the state of Nebraska.</p>

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

Error from the district court of Gage county. Tried below before Babcock, J. The facts are stated by the commissioner. A defendant must plead Ms infancy. (Schermerhom v. Jenhins, 7 Johns. [N. Y.], 373; Roe v. Angevine, 7 Hun [N. Y.], 679; Bryant v. Pottinger, 6 Bush [Ky.], 473; Clemson v. Bush, 3 Binn. [Pa.], 413; Campbell v. Wilson, 23 Tex., 252; Sliver v. Shelbaclc, 1 Dali. [TJ. S.], 165.) The burden of proof is upon the person under disability to make out the defense.

<p>Sales: CONSTRUCTION oe Contract: Agency. Ail agreement between a manufacturing company and a merchant provided: (a.) That the merchant was thereby appointed agent of the manufacturing company to sell its tobacco at such prices as it might direct. (6.) The merchant was to be paid a certain commission on all sales made if he sold the tobacco furnished at the price fixed by the manufacturer. If he sold it for less he was to have no commission. (c.) The merchant guarantied the payment of all tobacco shipped him by the manufacturer, (cl.) The merchant was to execute and deliver his promissory notes, due in sixty days, for all tobacco furnished him by the manufacturer. Held,, (1) Not a contract of agency for the sale of the manufacturer’s goods by the merchant on commission, but a contract of sale; (2) that tobacco furnished the merchant under this contract, upon his giving his notes therefor, became his property.</p>

Error from tbe district court of Douglas county. Tried below before Ogden, J. Tbe opinion contains a statement of tbe case. Tbe trustee’s indorsement of a payment did not take tbe note out of tbe operation of tbe statute of limitations. (Clarke v. Chambers, IT Neb., 90; Mariewthal v. Mosler, 16 O. St., 566; Sornberger v. Lee, 14 Neb., 193; Letson v. Kenyon, 31 Kan., 301; Barger v. Durvin, 22 Barb. [N. Y.], 68; National State Bank v. Rowland, 29 Pac.

<p>1. Specific Performance: Contiiacts: Time. Parties to a contract for tlie sale of land may make time of its essence by a distinct provision to that effect in the contract; and where they have done so, a court of equity will refuse to enforce specific performance in favor of a party who has been in default, unless strict performance has been waived. Morgan v. Bergen, 3 Neb., 209, followed.</p> <p>2. Vendor and Vendee: Contracts: Specific Performance. A contract for the sale of land provided that payment should be made by a certain time and that time was of the essence of the contract. Subsequently a further contract was made recognizing the first as abrogated, and providing that a conveyance would be made upon payment of the purchase money, together with certain independent indebtedness by the vendee to the vendor, on or before a certain other date. Time was also made of the essence of this contract. The purchase money not having been tendei ^ I by the time fined, KeW, that equity would not require a conveyance.</p> <p>3.-;-; Waives of Strict Performance. The fact that the vendor had instituted an action to recover the other indebtedness referred to in the second contract did not constitute a waiver of strict performance; the action not being for any portion of the purchase money of the land.</p>

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

<p>Error from the district court of Lancaster county. Tried below before Strode, J.</p> <p>See opinion for references to authorities.</p>

<p>1. Partnership Property: Individual Transfers. One member of a partnership has no implied authority to dispose of property of the partnership in satisfaction of his individual debt, or for his individual benefit.</p> <p>2. -:-: Notice. One in such case dealing with a partner, knowing that he is receiving partnership property, and that its proceeds are passing to the individual use of the partner, is • charged with notice of such partner’s want of authority, in the transaction.</p> <p>3.-: -: Evidence of Authority: Estoppel. The declarations of the partner conducting the transaction, that he has authority so to do, are insufficient to establish such authority or create an estoppel against the other partners in favor of one relying on such declarations.</p> <p>4. -: -: Ratification. In order to constitute a ratification of an unauthorized act the act relied on as such ratification must be performed with knowledge of the material facts, in the absence of circumstances creating an equitable estoppel.</p> <p>5. Evidence: Admissions. The testimony on another trial of-an officer of a corporation with relation to previous corporate acts cannot be proved as an admission binding upon the corporation.</p> <p>6. Rulings on Evidence. Certain rulings on the admission of evidence presenting no new question of law examined and sustained.</p>

<p>Review: Bill of Exceptions. Tlie petition in error in this ease presenting only questions requiring an examination of the evidence, and there being no hill of exceptions allowed either by the judge or clerk, the judgment is affirmed.</p>

<p>1. Contracts: Time to Rescind. The right to rescind a contract on the ground of fraud must he promptly exercised upon the discovery of the ground therefor. The continued use or employment of property will, in such case, be construed as an election to affirm the contract under which it was received.</p> <p>2. Building and Loan Associations: Stock: Fraud: Withdrawal oe Stockholders. A stockholder who has for three years acted as a director of a corporation, taking an active part in its management, with notice of its business methods and financial condition, cannot thereafter, in an action against such corporation, recover the money originally paid for his stock on the ground that his subscription therefor was procured by means - of the fraudulent representation of the defendant’s agents.</p> <p>3. Principal and Agent: Notice: Recovery eor Money Paid eor Stock. Nor can he in such case recover as assignee of like claims of other stockholders represented by him as agent, and whose interest as such he was bound to protect, since, by reason of their relations towards him, such stockholders are chargeable with the knowledge possessed by him respecting the affairs of the corporation.</p> <p>4. Pleading. Pacts which merely disprove the allegations of the adverse party do not necessarily constitute new matter within the meaning of the Code, and are, as a rule, admissible in evidence under a general denial.</p> <p>5. Contracts: Evidence oe Breach: Building and Loan. Associations. Evidence examined, and held not to prove the breach by the defendant, a foreign building and loan association, of an alleged agreement to maintain at the plaintiff’s home a local board of directors.</p> <p>6. -: Breach: Rescission. Not every breach of a contract by one party thereto will authorize the other to treat it as rescinded. The failure to perform an independent stipulation collateral to the main consideration, not amounting to a condition precedent, and not such as to prevent the performance by the party so in default, of the principal undertaking, although attended by some loss or inconvenience to the other party, does not absolve the latter from liability, or authorize him to treat the contract as abandoned.</p> <p>7. Corporations: Mismanagement: Withdrawal oe STOCKHOLDERS. Tlie mere mismanagement of tlie affairs of a corporation by its officers or agents does not warrant the withdrawal therefrom of stockholders or the repudiation of the obligations assumed by them as such.</p> <p>8. Constitutional Law: Violation oe Contracts. The act of 1891 relating to building and loan associations (Compiled Statutes, secs. 148a-148r, ch. 16) provides that it shall not be lawful for any foreign building and loan association to transact business in this state without first having filed with the auditor of public accounts a copy of the act under which it was organized, together with its charter or articles of incorporation, a statement under oath showing its resources and liabilities, also the number and cash value of its shares, and appoint an attorney in each county in which it may transact or solicit business, on whom service of process can be made, and with authority to acknowledge service in its behalf; and that any person or corporation doing business in this state as agent for any such association, which shall not have complied with the provisions of said act, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof, be fined, etc. Held, (1) That the primary object of said statute is to bring a designated class of foreign corporations within the jurisdiction of the courts of this state in order to protect persons dealing with them from fraud and imposition; (2) assuming that the purpose of "said act was to declare illegal contracts of non-complying building and loan associations, it is, as to agreements existing at the time of its enactment, a clear invasion of constitutional rights, as impairing contract obligations.</p>

<p>1. False representations as the basis of an action, whether for damages or for rescission of a contract, are such only ,as in some manner actually mislead the complaining party to his damage.</p> <p>2. Actionable fraud must relate to matters material to the transaction involved. Mere collateral inducement, although fraudulently made, of itself affords no ground for the rescission of a contract, or for the recovery of damage against the offending party.</p> <p>3. Corporations: Withdrawal of Stockholder: Becovery of Payments. American Building & Loan Ass’n v. Ravribolt, 48 Neb., 434, followed.</p>

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

<p>1. Recovery for Commissions and Attorney’s Pees. Evidence examined, and held to sustain the judgment complained of.</p> <p>.2. Pleading: Failure to Attach Exhibit. The failure to attach an exhibit, to which reference is made in a pleading, is not of itself ground for a demurrer, provided the matters alleged in such pleadings amount to a cause of action or defense.</p> <p>3. -: --. A pleading in which the only cause of action is for “money due, as per account hereto attached, and marked Exhibit B,” but which is accompanied by no exhibit or allegation showing the nature of the alleged indebtedness, fails to state a cause of action.</p>

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

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

<p>1. Contracts: CONSTRUCTION. Where a contract is ambiguous, a practical construction placed upon it by the parties thereto should prevail over any mere technical interpretation.</p> <p>2. -: -. In case a contract is partly written and partly of printed form, the writing controls in case of inconsistency of provisions.</p> <p>3. Subscriptions: Construction oe Contract. The contract set out in the opinion, between plaintiffs and various subscribers for the erection and equipment of a butter and cheese factory, construed, and held to be several, and not joint, and that each subscriber was liable to the plaintiffs to the amount of his subscription only.</p> <p>4. Corporations: Subscriptions. The subscribers, in pursuance of said contract, incorporated under the laws of this state. Held, That such corporation was not liable on the contract, and that plaintiffs cannot enforce a mechanic’s lien on the property for the amount of the unpaid subscription.</p>

<p>1. Reformation of Deed. A court of equity may reform a deed so as to comply with the intention of the parties.</p> <p>2.-: Evidence. Held, That the decree in this case is sustained hy sufficient evidence.</p>

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

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

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

<p>Railroad Companies: Injuby to House: Recoveby by Plaintiff: Evidence. The evidence in this case examined, and held not to sustain the verdict.</p>

<p>1. Parol Evidence: WRITTEN Agreement: Contradiction: Estoppel. Parol evidence of prior or contemporaneous conditions modifying a written proposition afterwards submitted and acted upon cannot be received in evidence to vary the terms of the writing.</p> <p>2. Counties: Release oe Depositories: Contracts. A county has sufficient authority to raise money otherwise, and an agreement of its treasurer that if money is advanced by a hank for certain county purposes, such bank shall be relieved to a certain extent from liability to the county as a depository is not enforceable.</p>

Heard below before Chapman, J. The facts and issues are stated by the commissioner. The defendant used the wall, to the height of three stories, for about twenty years. If there was no special contract between the owners, this would give him the light to continue its use; but the extent and mode of user define the right. That right, as so defined, was the right to use the wall for three stories only. The right cannot be changed or enlarged.

<p>1. Acknowledgment of Deed. The functions of an acknowledgment to a deed are twofold: (1) To authorize the deed to be given in evidence without further proof of its execution; (2) to entitle it to be recorded; and unless the real estate conveyed or incumbered the homestead of the grantors, an acknowledgment is not essential to the validity of the conveyance.</p> <p>2. Homestead: Deed: Acknowledgment. A conveyance of real estate, such real estate being the homestead of the grantors, is, unless acknowledged, absolutely void.</p> <p>3. Acknowledgment: Act oe Oeeioek. In this state the act of an officer in taking the acknowledgment of the grantor to a conveyance of real estate is a ministerial one.</p> <p>4. Corporations: Oeeiceks. The fact that one is shown to be secretary and treasurer of a corporation will not authorize the presumption that he is a stockholder of such corporation.</p> <p>5. Acknowledgment: Disqualification oe Oeeioek.' What relationship or what interest possessed by an officer disqualifies him from taking an acknowledgment must be determined from the facts and circumstances of the case in which the question is presented, rather than by any general rule.</p> <p>6. -: -. A notary public is not disqualified from taking an acknowledgment of a mortgage made to a corporation, merely because it is shown that he was at the time secretary and treasurer of the mortgagee, it not appearing that he was a stockholder in such corporation or otherwise beneficially interested in having the mortgage made.</p>

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

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

Heard below before Beall, J. The facts are stated by the commissioner. If a person contract with a partnership to contribute his services to the enterprise, for which he is to be compensated by a proportion of the profits, he becomes a member of the firm and liable for its debts, although he does not stipulate to bear any part of the losses.

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

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

Error from tbe district court of Douglas county. Tried below before Scott, J. Tbe opinion contains a statement of tbe case. Tbe court erred in instructing tbe jury to return a verdict in favor of tbe defendant in error. Tbe questions of fact, as disclosed by the evidence upon tbe trial, were for tlie jury to pass upon, and it was not tbe province of the court to take tbe question of fact from tbe jury.

<p>1. Statutes: Evidence. Printed copies of the statute laws purporting or proved to have been published under the authority of the state are presumptive evidence, and presumptive evidence only, of such laws. The original enrolled act hearing the certificates of the presiding officers of the two houses of the legislature and the approval of the governor, and deposited with the secretary of state, is the controlling evidence.</p> <p>2. -: Amendments: Rape. Chapter 105 of the Session Laws of 1887 is a valid amendment- of section 12 of the Criminal Code, although the repealing clause in the published act purports to repeal section 11 instead of section 12 as theretofore existing; the enrolled act disclosing that the legislature in fact repealed said original section 12.</p> <p>3. Evidence: Words: Criminal Law. When a word used by a witness has a signification so generally known that it must have been understood by the triers of fact, an appellate court will not disregard such, signification or treat the word as unintelligible merely because from motives of decency and propriety lexicographers have ignored it.</p>

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

<p>Contracts: Corporations: Withdrawal op Stockholders: Building and Loan Associations.</p>

<p>1. Executions: Sale Under Dormant Judgment: Collateral Attack. A sale of real estate to satisfy a judgment which, has become dormant under the provisions of section 482, Code of Civil Procedure, is voidable only, and cannot he assailed in a strictly collateral proceeding. (Gillespie v. Switaer, 43 Neb., 772.)</p> <p>2. Validity of Order Not Signed: Judges: Practice. Where the record discloses an order of the district court sufficient in form but omitting the name of the judge by whom it was made, the fact that the sole judge of the district named was at the date thereof disqualified to act in such proceeding by reason of having been attorney for one of the parties raises no presumption against the validity of such order in view of the statute authorizing judges to interchange and hold court for each other.</p> <p>3. Mortgages: Sale by Sheriee Instead oe Master: Coneirmation. Where a decree of foreclosure directs that the mortgaged property be sold by a master therein named, a sale by the sheriff to satisfy said decree under an order subsequently issued by the clerk is voidable at most, and such irregularity is cured by an order of confirmation regularly made.</p> <p>4. Deeds: Attestation. While it is customary to make use of the words “witness” or “witnessed” in attesting the execution of deeds and other instruments affecting the title to real estate, such practice is neither necessary nor universal. Any expression from which it appears that the subscriber in fact witnessed the execution by the grantor sufficiently answers the requirement of section 1, chapter 73, Compiled Statutes.</p> <p>5. Mortgages: Decebe op Foreclosure. The pendency of a proceeding for foreclosure does not terminate with the entry of an order for the sale of the property bound by the lien, but continues as a rule, for the purpose of the enforcement of the decree, until confirmation of the sale and disposition of the proceeds thereof.</p> <p>S.-: Purchaser op Laud: Notice op Sale and Confirmation. One who purchases property bound by a decree of foreclosure is, in the absence of equitable considerations resulting from the circumstances of the particular ease, charged with such notice as the record imparts, and is not entitled to personal notice of sale and confirmation subsequently made in the enforcement of such decree.</p> <p>7. Adverse Possession. Evidence examined, and held to sustain finding against the plaintiff in error upon the issue of adverse possession of property in dispute.</p> <p>8. Trial. Verdict set out in opinion held sufficient to sustain the judgment complained of.</p>

<p>1. Bill of Exceptions: Review. When a hill of exceptions has been quashed, no question can be considered, a determination of which necessarily involves an examination of the bill of exceptions.</p> <p>2. Mortgages: Notice oe Judgment Lien. A party purchased real estate and caused the title to be conveyed to his wife. It was subsequently conveyed to another party, and by this, by direction of the first party purchaser, to a third person who obtained a loan thereon, the proceeds of which were used in discharging liens and incumbrances existing against the property. Prior to the date the loan and the mortgage on the property evidencing it were made, creditors of the first party purchaser, who had obtained judgment against him, procured the issuance of an execution and its levy on the real estate in question, which was returned before the loan was made. Held, That the facts of the existence of the judgment against a party who had not, so far as the record disclosed, been an owner of the real estate, or interested therein, and the issuance of an execution on such judgment and its levy on the property, were not notice to the mortgagee of the rights or interest of the first party purchaser in the property, or any lien of his judgment creditors against it, the mortgagee being shown in all other respects to be an innocent or bona fide mortgagee.</p>

<p>1. Continuance. The ruling of the trial court in refusing an appiication for continuance examined, and held, not erroneous.</p> <p>2. Amendment of Pleading: Record eoe Review: Trial. In relation to the amendment of a petition in an action, during the trial, the allowance of which was assigned for error, the only reference to which in the record was in a journal entry in which appeared the statement, “Now on this day came the parties hereto with their attorneys and leave is hereby granted the plaintiff to amend the petition herein hy interlineation, to which the defendant duly excepts,” held, too indefinite to present for review the question of the propriety of the action of the trial court, there being no statement of what was embodied in the amendment; and furthermore, in order to make any error in such order available for review a statement of what was allowed to he done and the matter of the amendment should have heen made a part of and preserved by the hill of exceptions.</p> <p>3.-: Review. The propriety of granting or withholding leave to amend pleadings, to agree with the evidence in a case, is within the sound discretion of the trial judge, and unless there appears to have heen an abuse of such discretion, no available error is presented.</p> <p>4. Trover and Conversion: Sale: Evidence. Evidence of the careful conduct of a sale, which, as to plaintiff’s rights, was illegal, held properly excluded.</p> <p>5. Evidence: Notice of Sale. Evidence offered to show.notice of the sale by advertisement held incompetent, and therefore rightly excluded.</p> <p>6. Trover and Conversion: Pbice of Goods: Evidence. As a general rule, the prices which goods brought at a public auction are admissible as evidence of their market value.</p> <p>7. Evidence: Memorandum: Identification. A memorandum made contemporaneously with the facts of which it purports to he a record, when supplemented by the oath of the party who made it, or otherwise properly identified, is admissible as independent evidence. No uniform rule can he announced to govern its recepT tion, but its proper identification is an essential prerequisite.</p> <p>8. Admission of Evidence: Objection: Review. It is not ground of reversal in favor of a party who complains of a ruling, by which a general objection to some offered evidence was sustained, that the objection was not specific, if the evidence which was objected to was for any reason properly excluded.</p> <p>9. Instructions: Review. Assignments of error in respect to the failure and refusal of the trial judge to give certain instructions held not tenable, and overruled.</p> <p>10. Assignments of Error. An assignment in a petition in error of “Errors at law occurring at the trial and duly excepted to” is not sufficiently specific to raise and present questions pertaining to rulings of the trial judge in regard to the admission of evidence.</p> <p>11. Conversion: Verdict for Plaintiff. Evidence held sufficient to sustain the verdict.</p>

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

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

<p>1. Transcript for Review. The authenticated transcript of the record of the trial court imports absolute verity on appeal, and cannot he impeached by mere statements of counsel in the brief filed.</p> <p>2. —-. Where the transcript of the record of the trial court shows that a reply was filed therein, the defendant will not he heard to insist in this court that the averments in his answer should he taken as true merely because of his failure to have the reply included in such transcript.</p> <p>3. -: Pleadings. Should a party desire to urge in the supreme court that he was entitled to a judgment in his favor upon the pleadings, they must be copied into the transcript.</p> <p>4. Usury: Compound Intebest. A stipulation in a note providing for compound interest does not render the note usurious.</p> <p>5. -: -. Interest, when stipulated for, may be allowed on coupon interest notes, after their maturity, when the amount of interest on both coupon and principal does not exceed the maximum legal rate of interest on the principal sum.</p> <p>6. -: -. Interest will not he compounded when to do so would make the aggregate rate of interest exceed ten per cent per annum.</p>

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

Original application for mandamus to compel respondent, a judge of the district court for Lancaster county, to fix the amount of the supersedeas bond to be given upon appeal from a decree granting relator’s wife a divorce and alimony. Writ denied.

<p>Conflicting Evidence: Review: Landlord and Tenant: Notice. When made upon fairly conflicting evidence, the findings of the district court in support of its judgment must he sustained.</p>

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

<p>1. Voluntary Assignments: Validity ojp Deed: Gabkisiiment. In an action to hold liable as garnishee the assignee of an insolvent firm with respect to property which has come into his hands by virtue of the assignment it is immaterial whether or not the deed of assignment was witnessed, and any ambiguity in such deed will not be so construed as to render it void.</p> <p>2. -:-: Fbaud of Assigkdb. The fraudulent disposition of a part of his property by one about to make an assignment for the benefit of his creditors will not operate to impair the title of the assignee to the remainder, when such assignment is afterwards made to, and acted upon by, the assignee in good faith.</p>

<p>Error from tbe district court of Boone county. Tried below before Thompson, J.</p> <p>References: Piper v. Chicago, M. é St. P. R. Go., 46 N. W. Rep. [Wis.], 167; Guggenheim v. Lake Shore & M. S. R. Go., 33 N. W. Rep. [Mich..], 161; Breckenfelder v. Lake Shore & M. S. R. Go., 44 N. W. Rep. [Mich.], 957; Hendrickson v. Great N. R. Go., 51 N. W. Rep. [Minn.], 1044; Pennsylva/nia R. Go. v. Ogier, 35 Pa. St., 71;' Cahill v. Cincinnati, N. 0. & T. R. Go., 18 S. W. Rep. [Ky.], 3; Ramsey v. Louisville, G. & L. R. Go., 20 S. W. Rep. [Ky.], 162; Bates v. Hew York & N. E. R. Co., 22 Atl. Rep. [Conn.], 538.</p>

<p>Carriers: In juey to Passengee: Recoveey: Evidence. It is only-necessary to a right of recovery against a railroad company to show that the person injured was at the time being transported as a passenger over the defendant’s line of railroad, and that the injury resulted from the management or operation of such railroad. A presumption thereupon arises that such management or operation was negligent, and can he met, only, by showing that the injury arose from the criminal negligence of the party injured, or that the injury complained of was the result of the violation of some express rule or regulation of such company actually brought to the notice of the person injured.</p> <p>2. -: ■ — -—•: -. By the statutes of this state a common carrier is made an insurer of the safety of its passengers, except as against the criminal negligence of such passenger or his violation of some rule of the carrier actually brought to such passenger’s notice. (Compiled Statutes, eh. 72, art. 1, sec. 3.)</p> <p>3. Review: Number of Witnesses. The credibility of witnesses is for the jury, and this court cannot say that the finding of a jury is not supported by sufficient evidence because a greater number of witnesses testified against the finding than testified in its favor.</p> <p>4. Carriers: Recovery for Injuries: Evidence. In a suit by a passenger against a common carrier for damages for an injury alleged to have been sustained while such passenger, when the passenger has shown that the defendant is a common carrier, that he was the carrier’s passenger, and while such was injured, and the extent of such injury, he has made out his case. The carrier then, to escape liability, must show that the injury of the passenger was the result of his criminal negligence, or the result of a violation by him of some express rule or regulation of the carrier actually brought to the passenger’s notice.</p> <p>5. Damages: Negligence. The law awards damages to a party injured through the negligence of another, not as a punishment of the negligent party, but as compensation for the pecuniary loss sustained and the pain and suffering endured by the injured party.</p> <p>6. -: Carriers: Injury to Passenger: Contracts. The relation existing between a common carrier and a passenger is a contractual one, the undertaking of the carrier being to safely transport and deliver the passenger at his destination, and the violation of this contract by the carrier entitles the passenger to recover such damages as will fully compensate him for the injury and loss sustained; but the passenger is not entitled to damages that will put him in a better position than he would have been in had the carrier complied with its contract.</p> <p>7. -: -•: -: Remittitur. The damages awarded a passenger in this case held to be excessive and a remittitur of $1,300 ordered.</p>

<p>1. Mortgages: Assignment oe One of Several Notes. The assignment of a debt secured by mortgage carries the mortgage with it without any assignment of the mortgage itself, and where there are several notes secured by the same mortgage, the assignment of one operates as an assignment of a proportionate interest in the mortgage. Webb v. Eoselton, 4 Neb., 308, and Studebaker Bros. Mfg. do. v. MoOargur, 20 Neb., 500, followed.</p> <p>2. -: Assignment of Debt: Rights of Purchaser. Where the mortgage debt has been assigned, a purchaser in good faith without notice of the assignment will be protected by a release of the mortgage executed by the original mortgagee. Whipple v. Fowler, 41 Neb., 675, followed.</p> <p>3.-: Rights of Junior Mobtgagee. A junior mortgagee who has not been made a party to a proceeding foreclosing a senior mortgage is entitled thereafter to redeem such senior mortgage from the purchaser at judicial sale. Renard v. Brown, 7 Neb., 449, followed.</p> <p>4. -: -. Redemption is in such case a matter of right, and the court may not deny such right, because its exercise would be unprofitable.</p> <p>fi. Improvements: Mobtgages: Judicial Sales: Rights of Purchasers. For the purpose of redemption a purchaser in good faith at the judicial sale, believing he has a good title, will be entitled to credit for improvements made upon the property; but one who buys with notice of the facts is not a purchaser in good faith within the meaning of the rule, and is not entitled to such credit. Higginbottom v. Benson, 24 Neb., 461, distinguished.</p>

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

<p>1. Railroad Companies: Setting Out Fire: Damages: Evidence. In an action against a railroad company for setting out fire upon its right of way which spread to the lands of the plaintiff and destroyed trees thereon the plaintiff testified as to the value of the trees. On cross-examination he said that in estimating their value he considered what they were worth to him as ornamental trees and as adding to the value of the land. Held, That a motion to strike out his testimony as to value was properly overruled.</p> <p>2. Fires. Section 62 of the Criminal Code, making it a misdemeanor to set fire to woods and prairies, applies to fires set out on the lands of another, and not on one’s own land.</p> <p>3. Instructions: Issues. It is reversible error to state to the jury propositions of law not applicable to the issues or evidence, where such statements might have a prejudicial effect upon the losing party.</p> <p>4. Railroad Companies: Setting Out Fire: Damages. In an action for negligently setting out fire destroying trees on the land of the plaintiff the measure of damages is the damages suffered by such trees. Fremont, E. £ M. T. It. Go. v. Orion, 30 Neb., 70, followed.</p> <p>5. -: -: -. In ascertaining such damages the inquiry should be not alone as to the value of the trees before their injury, but should be as to the difference in value before and after the fire.</p>

Heard below before Wheeler, J. The facts are stated in the opinion. The petition does not state a canse of action.’ (Fowler v. Sutherland, 9 Pac. Rep. [Gal.], 674; Baker v. Wiswell, 17 Neb., 52; Wood v. Thornly, 58 Ill., 469; Clark v. Clark, 13 N. E. Rep. [Ill.], 555; Miller v. Znfall, 6 Atl. Rep. [Pa.], 350; Story v. Black, 1 Pac. Rep. [Mont.], 7.) There is a vital defect of parties defendant. (22 Am. & Eng. Ency.

<p>1. Bill of Exceptions: Allowance: Extension oe Time: Tbial Judge. The Code, previous to 1877, required exceptions to he reduced to writing and allowed during the term at which they were taken. By amendment in the year named it was provided that the party excepting must reduce his exceptions to writing within ■ fifteen days, or in such time as the court may direct, not exceeding forty days from the rising of the court. (Code of Civil Procedure, sec. 311.) In 1881 said section was so amended as to authorize an extension of time by the judge before whom the cause was tried, not exceeding forty days in addition to that allowed in the first instance, upon a showing of due diligence. Held, That the application under the amendment last mentioned should be addressed to the judge to whose ruling the exception was taken, and that an order by another judge of the same district extending the time - within which to settle the bill of exceptions is ineffective for that purpose.</p> <p>2.-: - — . The duty of a judge with respect to the allowance of exceptions is, within statutory limitations, a continuing one and does not terminate with the qualification of his successor in office. (State v. Barnes, 16 Neb., 37; Quick p. Sachsse, 31 Neb., 312.)</p> <p>3. -. Payne v. Jones, 33 Neb., 260, distinguished.</p>

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

<p>1. Bill of Exceptions: Omission of Testimony: Review. Where it is apparent from an inspection of a hill of exceptions that material evidence has been omitted therefrom, the judgment or order complained of will not be reversed on account of the insufficiency of the proof. (Nelson v. Jenkins, 42 Neb., 133.)</p> <p>2. -: Cokbections. A motion to correct a bill of exceptions by supplying evidence omitted therefrom through inadvertence will not be entertained by this court. (Bickel v. Duteher, 35 Neb., 761.)</p>

<p>1. Review: Conflicting Evidence. The finding of a jury upon conflicting evidence will not be disturbed where there is sufficient evidence to support it.</p> <p>2. Action for Price of Harvesting Machine: Breach oe Warranty: Verdict for Plaintiff. The evidence examined, and held sufficient to sustain the findings of the jury.</p> <p>3. Instructions: Review. An assignment of error as to the giving or refusing to give a group of instructions will be considered no further than to ascertain that any one of such group was properly given or refused.</p> <p>4.-: -. Objections to an instruction examined, and held not well taken.</p>

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

Original action in the nature of quo warranto to oust respondents, who are exercising the powers of trustees of a village having no legal existence. Writ allowed.

<p>1. Quieting Title. In an action quia timet in this state the question of title between the parties may he fully litigated and determined and a decree rendered assigning the title to the real estate or any part of it to the party entitled thereto.</p> <p>2. Limitation of Actions: Adveese Possession. The statute of limitations will begin to run against the title of a party purchasing lands from the United States from the date of his compliance with all the requisites to entitle him to a patent therefor in favor of one who holds adverse possession of the real estate.</p>

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

Heard below before Norris, J. References as to right of a tenant in common to recover from his co-tenant rents and profits: Peck v. Carpenter, 7 Gray [Mass.], 283; Grane v. Waggoner, 27 Ind., 52; Shepard v. Richards, 2 Gray [Mass.], 424; Woolever v. Knapp, 18 Barb. [N. Y.], 265; Israel v. Israel, 30 Md., 120; Pico v. Columbet, 12 Gal., 414; Becnel v. Becnel, 23 La.

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

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

Douglas county. Heard below before Walton, J. Partnership property, with tbe consent of all the partners, may be mortgaged to secure tbe individual debts of one or more of tbe partners. {Richards v. Reveille, 44 Neb., 38; Roop v. Herron, 15 Neb., 73; Deitrich v. Hutchinson, 20 Neb., 52; Sylvester v. Henrich, 61 N. W. Rep. [Ia.], 945; Fisher v. Syfers, 10 N. E. Rep. [Ind.], 306; In re Kahley, 2 Biss. [ü.

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

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

Original action involving tlie duty of tlie secretary of state in certifying nominations for state offices under .tlie provisions of the Australian ballot law.

<p>1. Mechanics’ Liens: Affidavit: Descbiftion of Land. Section 2, chapter 54, Compiled Statutes, construed, and held that the description of the real estate on which materials furnished by a subcontractor have been used in erecting an improvement is a necessary part of the affidavit required to be filed by such subcontractor in order to entitle him to a lien. Holmes -v. Hutchins, 38 Neb., 601, followed.</p> <p>2. -: -: -. The purpose of said statute, in requiring a subcontractor, claiming a mechanic’s lien, to file in the office of the register of deeds an affidavit stating the amount due him from the contractor, with a description of the real estate of the owner, is twofold: (a) To advise the owner what amount the subcontractor claims is due him for labor or material furnished a contractor towards the erection of an improvement upon the owner’s real estate, and thus enable the latter to protect himself and property in making a settlement with the contractor; (6) that the public by an examination of the records may be able to learn on what precise property the mechanic’s lien is claimed.</p> <p>3.-: - — -. Such statute requires that in the affidavit filed to procure the lien there should be such a description of the real estate as, aided by extrinsic evidence suggested by the description itself, would charge a party dealing with the real estate with notice of the lien claimed against it.</p> <p>4. -: -: -. In the affidavit filed by a subcontractor claiming a lien under said statute the real estate of the owner was described as the “Bartlett & Downing block in Kearney, Buffalo county, Nebraska.” The correct description of the real estate was “Lot 388, in the town of Kearney, Nebraska.” Held, That said description alone would not charge a party dealing with said lot 388 with notice that the lien was claimed against it.</p>

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

Heard below before Keysor, J. Submitted to supreme court on application of appellants for an order to prevent the district court and the receiver appointed below from proceeding further pending appeal. Application sustained conditionally. Authorities cited by counsel are referred to in the opinion.

<p>1. Ruling on Motion: Review: Bill oe Exceptions. Tlie action of the district court in overruling a motion cannot be reviewed here where evidence was necessary to support such motion and such evidence was not preserved hy a hill of exceptions.</p> <p>2. Appeal: Objection to Issues Not Raised Below: Waiveb. In a case brought to the district court by appeal, the rule restricting the parties to the issues raised in the lower court must he invoked in framing the issues. It cannot he invoked by objection at the trial to the introduction of evidence in support of the new issue.</p> <p>3. Evidence: Handwbiting. Section 344 of the Code of Civil Procedure authorizes the genuineness of handwriting to be determined by comparisons made either by experts or by the jury of the disputed writing with other writings proved to be genuine.</p> <p>4. —-: -. Such genuine writings upon proof should be admitted in evidence for the purpose of permitting the jury as well as experts to make the necessary comparison.</p>

Error from the district court of Douglas county. Tried below before Hopewell, J. The opinion contains a statement of the case. The alleged contract not being in writing is void. (PitMn v. Long Island R. Co., 2 Barb. Oh. [N. Y.], 221; Selden v. Delaware & Hudson Canal Go., 29 N. Y., 634; Mumford v. Whitney, 15 Wend. [N. Y.], 381; Bonnelli v. Blalcemore, 5 So. Rep. [Miss.], 22S; Rice v. Roberts, 24 Wis., 461; Knight r. Beenlcen, 30 Pa. St., 372; Wolfe v. Frost, 4 Sandf.

<p>Error from tbe district court of Antelope county. Tried below before Powers, j.</p>

<p>1. Mortgages: Judicial Sales: Appeaisement. That appraisers added together the valuations of pieces of property of which a decree of foreclosure had been rendered and order of sale issued, and from the aggregate sum deducted the incumbrances, when it further appeared that each piece sold for more than two-thirds of its appraised value, held not prejudicial and not cause for setting aside the sale.</p> <p>2. Review. In the absence from the record of anything to the contrary, the proceedings in a trial court are conclusively presumed to have been regular and will not be disturbed.</p> <p>3. Judicial Sales: Appeaisement: Conitemation. The provisions of the statute requiring the sheriff to deduct from the real value of lands levied upon the amount of the liens and incumbrances prior to that of the mortgage which the property is ordered sold to satisfy, being for the sole benefit of the plaintiff, the defendant, owner of the equity, cannot be heard to object to the confirmation of the sale because such liens and incumbrances were not deducted in making the appraisement. Smith v. Fotmoorthy, 39 Neb., 214, followed.</p> <p>4. -: -: Descbiption. The finding and order of the judge, who confirmed a sale of real estate made under an order of sale in mortgage foreclosure proceedings, in regard to errors in the description of the real estate sold, which appeared in the appraisal or copy thereof on file in the case, examined and approved.</p>

<p>1. Final Order: Review. To entitle a party to a review there must have been a final order or judgment rendered in the cause.</p> <p>2. Judgment for Costs: Review. A mere judgment for costs is not reviewable before final judgment.</p>

<p>1. Vendor and Vendee: MISREPRESENTATIONS: Rescission. Misrepresentations as to tlie location, quality, and value of real estate lw a vendor are sufficient grounds for rescission when relied upon by the vendee and he is unacquainted with its value and condition, and has been prevented by the fraud of the vendor from making an examination of the property.</p> <p>2. Misrepresentations as to Real Estate. Evidence held sufficient to support the findings of the trial court.</p>

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

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

<p>1. Divorce: Condonation. Condonation is forgiveness for the past upon condition that the wrongs shall not he repeated. It is dependent upon future good conduct, and the repetition of the offense revives the wrong condoned.</p> <p>2. -: -. Condonation of extreme cruelty may be avoided by abusive language and the use of opprobrious epithets.</p> <p>3. -: -. Conduct of a husband towards his wife which would not. alone support a decree of divorce on the ground of extreme cruelty may, nevertheless, be sufficient to avoid a condonation extended to the husband by the wife for such cruelty.</p> <p>4. -: Alimony. There is no fixed rule for determining what portion of the husband’s estate should be decreed to his wife for alimony. The amount should be just and equitable, due regard being had for the rights of each party, the ability of the husband, the estate of the wife, and the character and situation of the parties.</p>

<p>Statutes: Amendments: Constitutional Law: Stenogeapiiees: Copt of Testimony: Cbiminal Law. Section 49 of an act entitled “An act to amend chapter 13, Revised Statutes of 1866, entitled ‘Courts,’ ” passed and approved February 27, 1879, is unconstitutional and void, because said act amends section 5 of an act passed and approved February 19, 1877, without referring in its title to said section or act and without repealing said section 5.</p>

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

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

<p>Error from tbe district court of Lancaster county. Tried below before Strode, J.</p> <p>Beferences: Kraatz v. Brush Electric Light Co., 82 Mich., 457; United States Illuminating Co. -v. Grant, 55 Hun [N. Y.], 222; United States Electric R. Co. v. Shelton, 14 S. W. Bep. [Tenn.], 863; Perry v. Marsh, 25 Ala., 659; Grizzle v. Frost, 3 Fost. & Fin. [Eng.], 622; Union Pacific R. Co. v. Fort, 17 Wall. [U. S.], 553; 2 Thompson, Negligence, p. 975; Lincoln Rapid Transit Co. v. Nichols, 37 Neb., 333; Filer v. New Yorlc G. R. Co., 49 N. Y., 47.</p>

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

<p>Original application for mandamus to require respondent to receive and enter of record a verdict. Writ allowed.</p>

<p>1. Exemptions: Claims fob Wages. An employe who so far retains the control of the work in hand that he is not subject to the direction of his employer while engaged thereat is an independent contractor and not within the exception of section 531, Civil Code, relating to clerks’, laborers’, and mechanics’ wages.</p> <p>2. Judgments: Injunction. Equity will not interfere to prevent the enforcement of a judgment on account of mere error of law.</p> <p>3. Homesteads: Statutes. The act of 1879, entitled “An act to provide for the selection and disposition of homesteads, and to exempt the same from judgment liens, and from attachment, levy, or sale, upon execution or other process,” is complete in itself and embraces the entire subject indicated by its title.</p> <p>4. -:-: Claims FOR Wages. The provision of section 531, Civil Code, that nothing therein contained shall be construed “as to exempt any property in this state from execution or attachment for clerks’, laborers’, or mechanics’ wages,” has no application to property exempt as a homestead under the laws of this state.</p> <p>5. -: -: -. Section 1 of the act of 1879 declares that the homestead “shall be exempt from judgment liens and from execution and forced sale except as in this chapter provided.” The only exceptions therein named are: (1) Debts secured by mechanics’, laborers’, and vendors’ liens; (2) debts secured by mortgage executed by both husband and wife or an unmarried claimant. Held,, That the provision of the Code relating to clerks’, laborers’, and mechanics’ wages, if applicable to homesteads, was, so far as it conflicts with the act above mentioned,' thereby repealed.</p> <p>6. Beview: Sufficiency of Evidence. Evidence examined, and Mid to sustain the finding and decree of the district court.</p>

<p>1. Insurance: Failure to Pax Premium Note: Effect. An insurance company may by its policy provide that upon the failure of the insured to pay in full at maturity a premium note therein described said policy shall lapse and remain inoperative while such note remains unpaid, and such condition, unless waived, is a complete defense to an action by the insured for a loss during the period of default.</p> <p>2. Principal and Agent: Delegation of Authority. Authority conferred upon an agent requiring the exercise by him of special skill, judgment, or discretion cannot, in the absence of a known usage, unless justified by the necessities of the ease, without the consent of the principal, be delegated to another.</p>

<p>1. Chattel Mortgages: Failube to Register: Rights oe Creditors. A mortgage of chattels, where the mortgagor is permitted to retain the exclusive possession and control of the property conveyed, is void as against creditors of such mortgagor unless filed for record as required by section 14, chapter 32, Compiled Statutes. (Farmers & Merchants Bank of York v. Anthony, 39 Neb., 343.)</p> <p>2. Review: Transcribe Judgment by Consent. Where a transcript shows the filing before a justice of the peace of a bill of particulars in due form, accompanied by a demand for judgment against the defendant, and an acknowledgment by the latter, in writing, of the indebtedness alleged, with a request for the entry of judgment therefor, the assent of the plaintiff, although not affirmatively appearing, will be presumed, particularly where he is shown to have subsequently procured an execution to be issued for the satisfaction of the judgment so rendered.</p>

<p>Attachment Against Defendants Charged with Fraudulently Disposing of Their Property: Order Discharging Attachment: Review. The evidence examined, .and held insufficient to sustain the finding and judgment of the trial court.</p>

<p>1. Intoxicating' Liquors: Action on Saloon-Keepers’ Bonds. The conclusions announced in the former opinion in this case, reported in 46 Neb., 449, approved and adhered to, and, having been there stated in the syllabus to the opinion, need not and will not be here restated.</p> <p>2. -: -. The decision in the case of Ourran v. Percival, 21 Neb., 434, examined and distinguished.</p>

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

<p>Conditional Sales: Chattel Mortgages. A mortgagee of a conditional vendee in possession of chattels is not a purchaser within the meaning of section 26, chapter 32, Compiled Statutes, and the rights of the conditional vendor thereof are prior and paramount to the lien of such mortgagee under his mortgage.</p>

<p>1. Intoxicating Liquors: Sales: Damages: Action Against Saloon-Keeeek: Parties. The action which arises in favor of a parent against a retail dealer in intoxicating liquors and his bondsmen, because of the death of a son during minority and the consequent loss, by the parent, of the services of the minor, when such death is occasioned by the use of intoxicating liquors sold or furnished to the minor by the saloon-keeper or someone acting for him, is by virtue of the provisions of chapter 50 of the Compiled Statutes, entitled “Liquors,” and not under the provisions of what is termed the “Civil Damage Act.” (Compiled Statutes, ch. 21.) The action may be prosecuted in the name of the party entitled to the damages, without the intervention of an administrator of the estate of the deceased.</p> <p>2. -: -: -: - — . “A poor person dependent for' support upon a relative, according to the provisions of chapter 67, Compiled Statutes, may, in his own name and for his own benefit, maintain an action against a vendor of intoxicating drinks, for the loss of such support, caused by the death of such relative, when such death occurs in consequence of the traffic of such vendor in intoxicating drinks, without any action of the county commissioners in that behalf.” The decision in the case of McOlay v. Worrall, 18 Neb., 44, approved and followed.</p> <p>3. Parent and Child: Duty oe Ciuldken, Under the provisions of chapter 67, Compiled Statutes, the support of a dependent poor parent devolves upon a child or children of any age, if they be possessed of the requisite ability to render such support.</p>

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

<p>1. Justice of tlie Peace: Entby oe Judgment. “Upon a verdict, the justice must immediately render judgment accordingly. When the trial is hy the justice, judgment must he entered immediately after the close of the trial, if the defendant has been arrested or his property attached; in other cases it must be entered either at the close of the trial, or if the justice then desire further time to consider, on or by the fourth day thereafter, both days inclusive.” (Code of Civil Procedure, sec 1002.)</p> <p>2. -:-: County Judge. The provisions of the section just quoted are applicable to a county judge when exercising the ordinary powers and jurisdiction of a justice of the peace. (See Compiled Statutes, ch. 20, sec. 2.)</p> <p>3. Appeal to District Court: Order Remanding Cause. In an appeal from the judgment of the county judge, in an action wherein he exercised the ordinary powers and jurisdiction of a justice of the peace, a motion was made in the district court to dismiss the appeal for the reason that the judgment was one for costs alone and hence not appealable. The motion was sustained and the district court made an order remanding the cause to the county court for final judgment. Held, An unauthorized order on the part of the district court and hence ineffective.</p> <p>4. -: Jurisdiction: Order in Appellate Court. The county judge, acting under the order of the district court, attempted to render a judgment or to amend its former one, and from this action an appeal was taken, of which a motion to dismiss on the part of defendant, was overruled. The defendant did not appear further and his default was entered and judgment taken against him. Held, That the judgment was void; that the county judge had no jurisdiction when he rendered the judgment, and the district court acquired none by the attempted appeal.</p> <p>5. Replevin: Pleading and Prooe. Under a general denial, in an action of replevin, the defendant may introduce any matter which is a defense to the cause of action of plaintiff.</p> <p>6. - — : -: Value oe Property. When the value of the property is alleged in the petition in an action of replevin, and such allegation is specifically admitted in the answer, no proof of the value of the property is necessary.</p>

<p>Bill of Exceptions: Failure oe Clerk to Authenticate. A bill of exceptions cannot be considered on error or appeal where it is not authenticated by certificate of the clerk of the trial court.</p>

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

<p>1. Attachment: Motion to Dissolve: Burden oe Proof. Where the facts stated in an affidavit for an attachment are denied on a motion to dissolve, the burden is cast upon the plaintiff to sustain his charges by proof.</p> <p>2. -: --: Review. An order discharging an attachment, made upon conflicting evidence, will not be disturbed by a reviewing court, unless the decision is clearly and manifestly wrong.</p> <p>3. -: Evidence of Fraud. Evidence examined, and held that it fails to show that the defendant fraudulently contracted the indebtedness for which this action was instituted.</p> <p>4. -: -. Yoimg v. Cooper, 12 Neb., 610, distinguished.</p>

Original application for mandamus to require tbe auditor of public accounts to issue a certificate authorizing the relator to transact a mutual insurance business in the state of Nebraska. Writ denied. The opinion contains a statement of the case. If an act of the legislature is complete within itself it must stand, though it may be in conflict with former statutes and may so operate on prior laws as to materially change or modify them.

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

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

<p>Ruling on Motion: Confusing Evidence: Review. Where the evidence submitted upon a motion is imperfect and so confusing in its nature that it cannot he determined affirmatively that there was error in overruling such motion, the ruling of the district court must be sustained.</p>

<p>Review: Conflicting Evidence. No question but one of fact determined upon conflicting evidence being presented by the record, the judgment of the district court is affirmed.</p>

<p>Opening Judgment: Pinal Ob-dek: Review. There cannot be a review of an order of the district court opening a judgment and permitting an answer to he filed in the case until there has been a further order or judgment in its nature final.</p>

<p>Opening Judgment: Pinal Obdeb: Review.</p>

<p>County Boards: Rulings ok Claims. The question, presented in this ease is the same as that decided in Siouw County v. Jameson, 43 Neb., 265; accordingly, the judgment of the district court is affirmed.</p>

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

<p>Landlord and Tenant: Action eob Rent: Evidence. In an action to recover rent upon an oral lease from plaintiff to defendant it was properly ruled to be an immaterial inquiry whether or not defendant had subleased the premises to a third party for the term for which he was sought to be held liable.</p>

<p>1. Parties: Waive» oe Objections: Review. Where a stranger filed a motion in a pending case in the district court showing that he was directly interested in the subject-matter of the litigation, and a hearing of this motion was had without any objection that such motion was not presented by a party to the action, held, on error proceedings to review the ruling made on such motion, that the parties who resisted the motion solely on its merits thereby waived all rights of objection to such motion not being originally presented by a proper party.</p> <p>2. Receivers: Appointment: Evidence. The evidence examined, and held not to justify the overruling of the motion to vacate the appointment of receiver.</p>

<p>Review: Sufficiency of Evidence. Evidence examined, and held to sustain the finding of the district court, and the judgment affirmed.</p>

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

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

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

Error from tbe district court of Wayne county. Tried below before Jackson, J. Tbe facts are stated by tbe commissioner, The district court erred in overruling tbe motion to make tbe petition more definite and certain. (Goodwin v. Walls, 52 Ind., 268; Elliot, Appellate Procedure, sec. 665.) The court erred in giving instructions 3 and 4 on its own motion.

<p>1. Judgments: Final Order: Review. An order of a district court, made in an error proceeding setting aside the judgment of a county court, is a final order which may he reviewed on error by the supreme court before the final disposition of the original case by the district court.</p> <p>2. Appeal from County Court to District Court: Jurisdiction: Transcript. The filing in a district court of a petition in error and the issuance of a summons in error, to review the judgment of a county court, within one year from the date of its rendition, are not alone sufficient to invest the district court with jurisdiction. It is also indispensable to the jurisdiction of the district court that there should be filed therein a transcript of the proceedings of the county court had in the case in which the judgment sought to be reviewed was rendered, and such transcript must be filed in the district court within one year after the date of the rendition of such judgment.</p>