Volume 49 — Nebraska Reports

<p>1. Municipal Corporations: Dedication nob Street: Evidence. Where the acts of an owner of real estate are relied upon to prove that he has dedicated it to the public the acts must be such as to clearly manifest an intention on his part to dedicate it, and the public must have so acted with reference to the property as to indicate an intention of acceptance of the property dedicated.</p> <p>2. Dedication: Evidence. Acts of an owner which amount to a dedication of his property to the public must be such as indicate an abandonment of the use of the property exclusively to the public.</p> <p>3. -: -. The plaintiff owned an unplatted tract of land in the limits of a city so situate that Sixth street of said city, if extended, would pass through it. Before said street was extended through his land he sold a part of the tract, conveying it by metes and bounds, one of the calls in the conveyance being so many feet to the west line of Sixth street. Held, That this act of the owner ' was not alone sufficient to sustain a finding that he had dedicated any part of his land to the public to be used as a part of said street.</p> <p>i. -: ■ — -. Certain acts of an owner of real estate, from which it was claimed he had dedicated to the public a part thereof, set out in the opinion, and held not sufficient to sustain a finding of such dedication.</p>

<p>1. Administration of Estates: Administrators: Place oe Appointment: Residence: Jurisdiction. Section 177, chapter 23, Compiled Statutes, construed, and held: (1.) When a person dies intestate, being an inhabitant of this state, letters of administration must be granted in the county of which he was an inhabitant at the time of his death. (2.) If an intestate at the time of his death resided outside this state, and left here an estate to be administered, then an administrator may be appointed in any county in which any of such estate is situate; and the administrator first appointed will be entitled to the entire estate of the intestate in this commonwealth, to the exclusion of administrators appointed afterwards in other counties of the state. (3.) The judgment of a county court appointing an administrator is not void because the petition therefor does not allege that the intestate was at the time of his death a resident of the state of Nebraska.</p> <p>2. Administrators: Petition fob Appointment. A petition for the appointment of an administrator must allege the necessary facts which confer jurisdiction on the county court, and if it fails to do so the judgment of the court appointing the administrator will be void. Moore v. Moore, 33 Neb., 509, followed.</p> <p>3.-: -: Description of Property. It is not necessary in a petition for letters of administration to set out the description of either the real or personal property belonging to the intestate’s estate. In re Miller, 32 Neb., 480, followed.</p> <p>4. -: -. A petition by a creditor of an intestate to be appointed his administrator alleged that the intestate died seized of real and personal estate situate in the county; that the real estate was worth about $5,600; that the personal estate was estimated to be worth several hundred dollars. Meld, That the allegations were sufficient.</p> <p>5. Appearance: Waiver of Notice; Jud&ment. Persons not under guardianship and not minors, nor under other legal disability, cannot be heard to complain of a judgment rendered in a proceeding to which they were parties, because the notice required by law of such proceeding was not given them, when the record discloses that they voluntarily appeared and participated in such proceeding.</p> <p>6. Appointment of Administrators. Section 178, chapter 23, Compiled Statutes, construed and held: (1.) That a county court is not by this statute absolutely required to appoint the widow or next of kin of an intestate, or some person selected by them, administrator of the intestate’s’ estate. (2.) If it appears that the person proposed for administrator is unsuitable or incompetent, the county court is not obliged to appoint such person, notwithstanding that application may be made therefor by the widow or next of kin within thirty days after the intestate’s death.</p>

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

<p>1. Bill of Exceptions: Allowance by County Judge: Attachment. Prior to the act of 1895 (Session Laws, ch. 72) a county judge had no authority to allow a bill of exceptions embodying the evidence on a motion to discharge an attachment. Moline, Milium & Stoddard Go. v. Ourtis, 38 Neb., 520, followed.</p> <p>2. -: -. The clause of the act of 1895, whereby it is made to apply to all cases then pending, cannot be so construed as to cure error in a judgment rendered prior to its passage, such judgment being based on a consideration of a bill of exceptions unauthorized when the judgment was rendered.</p>

Error from the district court of Seward county. Tried below before Bates, J. The first and second instructions were erroneous. (St. Loins & S. W. R. Co. v. Hammers, 51 Kan., 127; Atchison & D. R. Co. v. Lyon, 5 Am. & Eng.

<p>Rehearing: Correction oe Transcript: Review.</p>

Error from the district court of Douglas county. Tried below before Scott, J. Whenever the legislature of a state, or any person to whom a legislature delegates its power, divides a school district, but does not in the act of division provide in terms for a division of the property and the payment of the debts, then and in that case the old district continues to own all the property within its territory and is liable for all the debts of the old district.

<p>Executors and Administrators: Accounts: Final Settlement: Judgments. The law recognizes a substantial difference between the final settlement of the accounts of an executor or administrator and those made annually or at stated periods during the course of the administration. A final settlement made pursuant to notice to persons interested in the estate is in the nature of a judgment and conclusive as to all'matters included therein until reversed or set aside by means of a direct proceeding, or impeached on account of fraud, while an interlocutory ex parte accounting is but prima facie correct and subject to re-examination so long as the administration account remains unsettled.</p>

<p>Pies Judicata: Overseers oe Highways. A judgment upon the merits against the defendant, an overseer of highways, for the removal, under color of his office, of a fence situated on the plaintiff’s land, the sole defense being the existence of an alleged public road at the locus in quo, is, in the absence of fraud, a bar to a subsequent proceeding by the successor in office of the former in behalf of the public to restrain the threatened obstruction of such alleged highway in which the rights of the parties depend upon the facts put in issue in the former action.</p>

<p>1. Witnesses: Unintelligibility oe Testimony: Review. The fact that the testimony of a witness is unintelligible to the official stenographer of itself affords no ground for the reversal of a judgment.</p> <p>2. Trial: Bill of Exceptions: Review. It is the duty of parties to assist in preserving the evidence in the manner prescribed by law, and the failure, through his own neglect, of the unsuccessful party to secure a true bill of exceptions presents no ground for relief at the hands of the appellate court.</p> <p>3. Boundaries: Conflicting Evidence: Review. Evidence examined, and held to sustain the judgment of the district court.</p>

<p>Mandamus: Procedure: Application. In an action for mandamus the application for the writ shall he hy motion, supported hy an affidavit in which the facts are stated upon which the'application is predicated. A petition, verified as pleadings in civil actions under .the Code are ordinarily, is insufficient when depended upon to fill the place of an affidavit, and an application thus made should be denied and the writ withheld. (State v. Mayw of Gity of Lincoln, 4 Neb., 260.)</p>

<p>1. Fraudulent Conveyances: Insolvency: Partnership: Trust Funds. The property of an insolvent, either person or partnership, is not a trust fund in the hands of the debtor in favor of creditors, in the true sense of the words “trust fund.” The creditors do not, merely because of such relation to the debtor, have any recognizable or enforceable lien on the property of the debtor, nor is there any trust character attaching to it which interferes with a bona fide sale of it by the debtor.</p> <p>2. -:-:-: Evidence. A firm, heavily indebted at the time, may sell a large portion of its property, its stock in trade, and also its business, and receive in consideration therefor the promissory notes of the purchaser, and these facts alone are not conclusive evidence that the sale was fraudulent. They are but facts to be considered in connection with all other facts and circumstances adduced in evidence on the trial on the question of the fraudulent or good-faith character of the transfer.</p> <p>3. -: Evidence. The question of fraud in a transfer of property, as affecting the rights of the creditor of the vendor, is one of fact, to be determined in each case from the evidence introduced at the trial, and where a finding on such question is based on conflicting evidence it will not be disturbed, unless manifestly wrong.</p>

<p>1. Fraud: Evidence. Fraud is never presumed, but must be clearly proved in order to entitle a party to relief on tbe ground that it has been practiced on him.</p> <p>2. -:-. The finding of a trial judge based upon conflicting evidence, when there is sufficient evidence to support it, will not be disturbed.</p>

<p>Judicial Sales: Appraisement: Objections. Objection that the appraisement made as a part of the proceedings in a judicial sale is too low or too high must be made and, with a motion to vacate the appraisement, be filed in the cause in which the sale is about to be effected, before the sale. (Yought v. Fowioorthy, 38 Neb., 790; Bwlcett v. Olarlc, 46 Neb., 466.)</p>

<p>1. Bill of Exceptions: Authentication. A bill of exceptions should be authenticated by the certificate of the cleric of the trial court to entitle it to examination and consideration in the supreme court.</p> <p>■ 2. Conflicting Evidence: Review. Questions of fact, and upon conflicting testimony, are to be decided by the trial jury, and a verdict will not be set aside on the ground of the want of sufficient evidence to support it, unless the want is so great as to show that the verdict is manifestly wrong. (Sycamore Go. v. Gnmdrad, 16 Neb., 529.)</p> <p>3. Evidence: Action eor Wages. Where, in an action to recover an amount alleged to be due the plaintiff as wages for work and labor performed at an agreed price, there is a conflict in respect to the amount agreed upon, evidence of the value, at the time of the contract, of the work performed is competent and admissible.</p>

Under the seventh, eighth, ninth, and tenth special finding's of fact the plaintiff must be held to have ratified the sale of th,e cattle and judgment should have been entered for the defendants. (Cook v. Tullís, 18 Wall. [U. S.], 338; Hughes v. Ins. Co. of North America, 40 Neb., 627; Starks v. Sikes, 8 Gray [Mass.], 609; Despatch Line v. Bellamy Mfg. Co., 12 N. H., 205; Plantórs Bank of Mississippi v. Sharp, 4 S. & M. [Miss.], 75; McMahan v. McMahan, 13 Pa.

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

<p>1. Affidavits: Bill oe Exceptions. Affidavits used in the district court cannot he considered by this court unless embodied in the bill of exceptions.</p> <p>2. Transcripts: Review. The transcript of the record of the district court imports absolute verity.</p> <p>3. -: -: Judgments. Held, That the decree was rendered during term, and not in vacation.</p>

<p>1. Conflicting Evidence: Review. A question of fact determined on conflicting evidence will not be reviewed.</p> <p>2. Instructions: Assignments oe Error. Errors in instructions should he separately assigned in the motion for a new trial, as well as the petition in error.</p> <p>3. Rulings on Evidence: Assignments op Error. Alleged errors in the admission of evidence, to he available in this court, must be specifically assigned in the petition in error.</p> <p>4. Trial: Objections: Review. An objection to the admissibility of ■ testimony cannot be raised for the first time in the reviewing court.</p> <p>. 5. -: Documents: Bill op Exceptions. A ruling excluding a paper or document as evidence cannot be considered when such paper or document has not been embodied in the hill of exceptions.</p> <p>6. -: Immaterial Testimony: Harmless Error. The judgment will not he reversed for the admission of immaterial testimony, when the same could not have prejudiced the rights of the complaining party.</p> <p>7. Sales: Delivery: Breach op Contract: Measure op Damages. The measure of damages for a breach of a contract by the vendor ' of personal property failing to make delivery to the vendee, generally, is the difference between the contract price and the fair market value of the property at the time and place specified in the agreement for delivery.</p> <p>8. -: — : - — : -•: -: Evidence. Held, That the evidence introduced toy a plaintiff did not trench upon the above rule.</p> <p>9. Tender: Waiver. A formal tender of money is never required where it is disclosed, if it had been made, it would have been fruitless.</p> <p>10. Trial: Remarks of Judge: Review. Held, That the remarks of the trial judge made in the presence of the jury, which are set out in the opinion, were not prejudicial.</p>

<p>1. Instructions: Assignments op Error. An assignment in a petition in error that the verdict is contrary to law does not present for review alleged errors in the instructions.</p> <p>2. -:-. Such an assignment raises the question whether the verdict is contrary to the law as contained in the charge given hy the court to the jury.</p> <p>3. .Action on Order for Goods Shipped: Verdict por Plaintipp. Held, That the verdict is sustained hy the evidence, and that the assessment of the amount of recovery is not excessive.</p>

<p>1. Instructions: Assignments oe Error: Motion eor New Trial. An assignment of error in a motion for a new trial that “the court erred in giving instructions 2, 3, 5, 6, 7, and 8, and each of them, asked for by plaintiff,” is sufficiently specific to call for review by the supreme court of each of the instructions specified. It is not an assignment to the giving of the instructions en masse, but to each one separately.</p> <p>2. -:-:-. The first paragraph of the syllabus in Russel v. Rosenbaum, 24 Neb., 769, overruled.</p> <p>3. Sales: Contracts: Instructions. Eeld, No reversible error in the instructions.</p> <p>4. Evidence: Foundation. No foundation having been laid for the introduction of Exhibit J, offered in evidence, there was no error in excluding it from the jury.</p> <p>5. Remittitur. A remittitur of $16 ordered to be filed by plaintiff below as a condition of affirming the judgment.</p>

<p>1. Corporations: Execution of Notes. Promissory notes purporting to be executed by a corporation construed to be tbe obligations of tbe corporation, and not of tbe members thereof.</p> <p>2. -: Corporate Existence: Estoppel. When a party contracts'. with, sues, and obtains judgment against an imperfectly organized corporation, be is estopped from denying its corporate existence, and is precluded from recovering from its members individually, as if they were partners, upon tbe same indebtedness.</p>

<p>Conflicting Evidence: Review: Hotel: Loss oe Goods. In this case the questions presented are with respect to facts determined hy the jury upon conflicting evidence. The verdict, being sufficiently sustained, cannot he disturbed.</p>

<p>Review: Bill oe Exceptions. In the absence of a bill of exceptions there must he an affirmance of the decree sought to be reviewed, ■ when there is presented by the record no question aside from the sufficiency of the evidence to sustain it.</p>

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

<p>Replevin: Evidence: Directing Verdict. In a replevin action, the plaintiff without question having shown that he was in the undisputed possession of the replevied goods under claim of ownership, it devolved upon the adverse parties, if they would justify under a distress warrant, to introduce competent evidence of its existence, and there being an entire failure in this respect, the district court properly instructed the jury to find for the plaintiff.</p>

See opinion and former report for statement of tbe case. Tbe alleged defect in tbe answer was waived by appellant. He offered and introduced in the trial court the evidence which sustained the defense. He made no objection in the trial court to the evidence there introduced by appellee in support of the defense. He made no .objection in the trial court that the answer was insufficient, and made none in this court.

Error from the district court of Otoe county. Tried below before Chapman, J. The facts are stated by the commissioner. There is no allegation of negligence in the petition which would entitle the plaintiff to recover. (Hunter v. Gooperstown & S. V. R. Go., 112 N. Y., 371; Solomon v. Manhattan R. Go., 103 N. Y., 437; Lake Shore & M. S. R. Go. v. Pinchin, 13 N. E. Rep. [Ind.], 677; Renner v. Northern P. R. Go., 46 Fed.

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

Error from the district court of Johnson county. Tried below before Bush, J. The transfer is void because it assumed to be a preference of creditors of the old bank, which was made solvent by the transaction, as subsequent events demonstrated. (State v. Commercial State Bank, 28 Neb., 677; Lyons v. Perry Stove Mfg. Co., 24 S. W. Rep. [Tex.] 16; Sawyer v. Eoag, 17 Wall. [U. S.], 610; Eibernian Ins. Co. v. St. Louis & New Orleans Transportation Co., 13 Fed.

<p>1. Compromise and Settlement: Actions: Bar: Fraud. Where a creditor accepts from his debtor a part of an unliquidated demand against him in full settlement and compromise thereof, such act is a defense and bar to an action by the creditor against the debtor for the original demand, unless it be pleaded and proved that the settlement was procured by fraud, mistake, or duress.</p> <p>2. -:-:-: —-. The burden of showing that a settlement was procured by fraud is on the party alleging it.</p> <p>3. -: -: -: -: Evidence. Evidence examined, and held insufficient to sustain the finding of the jury that the compromise and settlement pleaded by the plaintiff in error in bar to the action was procured by fraud.</p>

Error from the district court of Lancaster county. Tried below before Tibbbts, J. Tbe facts are stated by tbe commissioner. Tbe will was not properly executed. (Greenough v. Greenough, 11 Pa. St., 489; Barr v. Graybill, 13 Pa. St., 396; Waite v. FrisUe, 47 N. W. Rep. [Minn.], 1069.) Tbe will was not attested as required by statute.

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

Heard below before Hall, J. Tbe facts and issues are stated by tbe commissioner. A voluntary assignment creates a trust for tbe benefit of tbe creditors, and tbe assignee is clothed with power which could not be exercised by tbe assignor. Tbe assignee took tbe property discharged of any claim of tbe appellee, and tbe appellants Lee & Becker, who bought tbe property from tbe assignee, are entitled thereto as against tbe claim of tbe appellee. Commercial Nat.

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

<p>1. Action Against Officer: Forum of Jurisdiction. Section 54 of the Code, providing that an action against a public officer, for an act done by him under color of his office, must be brought in the county where the cause, or some part thereof, arose, applies to actions against such persons begun after their terms of office have ceased and they have removed to another county.</p> <p>2. Objections to Jurisdiction: Answer. Objections to the jurisdiction which do not arise upon the summons, the indorsement, or service thereof, or upon the face of the petition, may be raised by answer in connection with matter in bar. EwWmrt v. Palmer, 39 Neb., 158, followed.</p> <p>3. -:-: Authority for Appearance. The filing of a paper authorizing certain attorneys to appear for defendant and defend the action, after the filing of an answer pleading want of jurisdiction, does not waive such plea.</p> <p>4. Trover and Conversion: Non-Appearance: Default: Review. A verdict for defendants in an action of trover is contrary to law when such defendants have not appeared- and their default has been entered.</p>

<p>Appeal from the district court of Nuckolls county. Heard below before Hastings, J.</p> <p>See opinion for references to authorities.</p>

<p>1. Bill of Exceptions: Authentication oe Documents. To authenticate a document attached to a transcript as the bill of exceptions settled in the case a certificate of the clerk, under the seal of the district court, identifying the document as the original, or a copy of the bill of exceptions, is essential.</p> <p>2. Instructions: Exceptions: Review. The propriety of an instruction cannot be reviewed unless the record discloses that the giving of the instruction was excepted to by the complaining party.</p> <p>3. Pleading: Jud&ment: Review. When the sufficiency of a petition is not attacked until after judgment, all reasonable intendments should be indulged in support of the judgment.</p>

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

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

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

Error from the district court of Cuming county. Tried below before Norris, J. In the argument reference was made to the following cases: State v. Franlclin Falls Go., 6 Am. Rep. [N. EL], 513; Ryan v. Brown, 100 Am. Dec. [Mich.], 154; City of Janesville v. Carpenter, 20 Am.

<p>1. Pleading: Judgment. “It is a well established rule of pleading, under the Code as well as at common law, that a judgment upon demurrer must be against the party whose pleading was first defective in substance, and that a demurrer searches the entire record and must go against the first error.” (Hoioer v. Aultmcm, 27 Neb., 251; Oakley v. Talley County, 40 Neb., 900.)</p> <p>2. Water-Courses: Fishways: Constitutional Law: Statutes. Tbe legislature of tbe year 1875 passed a law entitled “An act to prohibit the catching of game fish in certain cases.” (See Session Laws, 1875, p. 23.) The act referred to was the subject of amendment and repeal by the legislative body which convened in 1879, the title of the amendatory act being as follows: “An act to amend sections one, two, and three of an act entitled ‘An act to prohibit the catching of game fish in certain cases.’ ” (Session Laws, 1879, p. 71.) During a session of the legislature convening in 1887 an act was passed under the following title: “An act to amend section one of ‘An act to amend sections one, two, and three of an act entitled “An act to prohibit the catching of game fish in certain cases.” ’ ” (Session Laws, 1887, p. 662, ch. 107.) Among other things, this latter act made it obligatory upon persons or corporations owning, erecting, or maintaining a mill-dam across any stream of water in the state to construct and keep suitable fish-ways for the passage of- fish over and around the dam. Held, That the portion of the act last referred to which prescribed the duty of construction, etc., of a fishway was a subject not expressed in the title of the act, and hence the act, to the extent it was attempted to legislate therein upon such subject, was within the constitutional inhibition that “No bill shall contain more than one subject, and the same shall be clearly expressed in its title.” This is equally true whether the act be viewed as an amendatory one, as it is purported to be, or as an independent act, complete within itself.</p>

<p>1. Contract to Sink Tubular Well: Construction: Supply op Water. The contract upon which the cross-petition in this action declared construed, and held to he an agreement under which the defendant was to sink a tubular well of prescribed dimensions, until a flow of two thousand gallons of water per hour was obtained, not to extend, however, beyond a depth of five hundred feet, at any ascertained or fixed compensation for such further extension, and not in any event to extend beyond a depth at wbicb tbe company, tbe employer, should give tbe defendant notice to quit work.</p> <p>2. -: Termination: Amount op Recovery. The cross-petition declared on a completed contract. During tbe progress of tbe work under tbe contract tbe company notified tbe defendant to stop any further work on tbe well. With tbe requirements of such notice tbe defendant complied. Held, That under the pleadings be could recover the contract price for tbe number of feet of tbe well then completed as to dimensions, casing, etc., in accordance with tbe contract, and for no more.</p> <p>3. -: Supply op Water. Tbe contract in question did not provide that any specific quantity or flow of water should be obtained as a condition precedent to or upon wbicb depended defendant’s right to compensation for such labor as be performed or materials be furnished in tbe completion of any portion of tbe well according to contract, and further, in tbis connection, that tbe contract was enforceable notwithstanding its omission in respect to tbe condition to wbicb reference has just been made.</p> <p>•. Held, That under tbe facts and circumstances shown 4. in evidence, the contract by virtue of which defendant demanded a recovery was binding on the company against which the claim was sought to be established.</p> <p>5. Mechanics’ Liens: Tubular Wells. The account for labor performed and materials furnished in sinking a tubular well affords no foundation for a claim for a mechanic’s lien on the premises on which the improvement is made.</p> <p>6. -:-. The former opinion in this case, to the extent the construction given the contract between the company and defendant differed and was in conflict with the construction herein adopted, is reversed.</p>

<p>Appeal from the district court of Knox county. Heard below before Jackson, J.</p> <p>References as to competency of certified copy of record of deed: 1 Wharton, Evidence [3d ed.], sec. 141; Edwards v. Noyes, 65 N. Y., 125; Erise v. Nelson, 66 Pa. St., 258; Potts v. Coleman, 5 So. Rep. [Ala.], 782; Loftm v. Loftin, 1 S. E. Rep. [N. Car.], 837; Allen v. Bead, 17 S. W. Rep. [Tex.], 115; Over and v. Menczer, 18 S. W. Rep. [Tex.], 301; Dickinson v. Breeden, 25 111., 168; Newell, Ejectment, 464; Phillips v. Bishop, 35 Neb., 487.</p>

<p>1. Chattel Mortgages. Under section. 14, chapter 32, Compiled Statutes, a mortgagee in good faith is one who takes a chattel mortgage to secure a debt actually and justly owing to him, whether pre-existing or not, without actual or constructive notice of prior equities against the mortgaged property.</p> <p>2. -. Tootle v. First Nat. Barilo of Ghariron, 34 Neb., 863, distinguished.</p>

Error, from the district court of Douglas county. Tried below before Scott, J. We contend that at the time of the drowning, Twenty-fifth street, at the point near where the accident occurred, was actually closed to public travel by reason of the existence of a pond of water, and the deceased, according to the undisputed proof of this case, at such time not only was not in the use of the street for any lawful or proper purposes, but was not in any manner using said street;…

Error from the district court of Douglas county. Tried below before Keysor, J. Heard on motion of defen dan t in error to dismiss the proceeding on the ground that the judgment complained of has been satisfied.

<p>Attachment: Transfer of Debtor’s Property. A debtor who had transferred all his interest in property subsequently attached, to one who is not a party to the attachment suit, cannot, in his own name and right, be permitted, on motion for a dissolution of the attachment, to establish the validity of his transfer.</p>

<p>1. Deeds: Witnesses. Conveyances of real estate executed within this state, conveying real estate situate within this state, are required to he witnessed^ (Compiled Statutes, ch. 7.3, sec. 1.)</p> <p>2. -: Foreign Acknowledgment: Evidence. A deed for lands situate in this state, executed in the state of Kansas and acknowledged there before a notary public, who attached his official seal to the certificate of acknowledgment, is presumed to have been executed in accordance with the laws of the state of Kansas, and, though not witnessed, is entitled to be recorded and read in evidence in this state without other proof that the grantors therein actually executed and delivered the deed.</p> <p>3. Landlord and Tenant: Adverse Possession. A tenant by simply “holding over” after the expiration of his lease does not hold adversely. Until he surrenders possession of the leased premises, or by some unequivocal act notifies the landlord that he no longer holds under the lease, he cannot claim that his possession is.adverse.</p> <p>4. Trial: Evidence. A court is not obliged to submit to a jury for its consideration evidence not applicable, to any issue made by the pleadings in the case.</p> <p>6. Landlord and Tenant: Oral Contract to Purchase: Possession. Where a tenant in possession orally contracts for the purchase of the-leased premises, his subsequent‘possession will be presumed to he under the lease, unless it be clearly shown that he holds under the contract of purchase. (Bigler v. Baker, 40 Neb., 325.)</p> <p>6. Homestead: Conveyance. Prior to the enactment of the homestead law of 1877 the failure of the wife to join in a conveyance of the homestead, the title to the same being in the husband, did not 'render such conveyance void.</p>

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

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

<p>1. Judicial Sales: Notice. A purchaser at a judicial sale is charged with notice of the proceedings leading to the sale, including the appraisement.</p> <p>2. -: Appraisement. Appraisers in judicial sales act judicially; and the parties, including the purchaser, are in collateral proceedings bound by the appraisement.</p> <p>3. -: • — —•: Liens: Foreclosure. Where a lien junior to that foreclosed was erroneously, by the appraisers, treated as a senior lien, and its amount deducted from the value of the property in making the appraisement, the purchaser bidding only two-thirds of the appraised value after deducting such lien, and the holder of such junior lien not being a party to the suit, such purchaser cannot be heard, in a subsequent suit to foreclose such lien, to say that it was junior to that under which he bought.</p> <p>4. -: Liens: Foreclosure. In such a suit the holder of what was the junior lien is entitled to a decree of foreclosure, and is not compelled to redeem.</p> <p>5. -:-:-. In such case the former owner of the equity, who is personally liable for both debts, has such an interest that he may insist upon the subjection of the property to the payment of the lien.</p>

<p>1. Pledges: Liability oe Bailee. The pledgee of chattels to secure the payment of a debt is a bailee and not the owner of the property, and he is responsible as bailee after as well as before the maturity of the debt.</p> <p>2. Review: Instructions: Harmless Error. A defendant against whom judgment has been rendered cannot complain because the court instructed the jury to deduct from the damages recoverable by plaintiff the amount of a set-off not pleaded by defendant.</p> <p>3. Bailment. A special contract of bailment prevails in determining the liabilities of the parties, as against general principles of law applicable in the absence of express agreement.</p> <p>4. Pledges: Liability oe Bailee. A bailee who contracts to keep the property in a particular place is not discharged from damages resulting from his failure to do so because he was compelled to remove it by the owner of the place designated.</p> <p>5. Arbitration and Award. A party to an arbitration may revoke the submission before an award is made, and where the submission provides for a written award, a revocation may be made after the arbitrators have individually'communicated to strangers their respective views, but before they have signed any award.</p>

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

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

<p>1. Alteration of Instruments: Time. Whether an alteration apparent from the face of a note was made at, or subsequent to, the time of its execution is a question of fact for the jury, and it is not in such case error to receive in evidence the note sued on, upon proof by the payee that the alleged alteration was made previous to its receipt by him, on the day of its date, from one of the joint makers thereof.</p> <p>2. Witnesses: Cross-Examination: Discretion oe Court. The law has conferred upon the trial court some discretion in determining the limits within which the cross-examination of witnesses may be allowed, and its action in that respect will not, in the absence of an abuse of discretion, be the subject of review by this court.</p> <p>3. Review: Instructions. Where several instructions are grouped in one assignment of the motion for a new trial or petition in error, they will be examined no further than to determine that a single one thereof was rightly given or rightly refused.</p>

<p>Error from the district court of Nuckolls county. Tried below'- before Morris, J.</p> <p>References: Porter v. Chicago & N. R. Co., 1 Neb., 15; Chicago, B. & Q. R. Co. v. Manning, 23 Neb., 552; Katzenstein v. Raleigh & C. R. Co., 78 N. Gar., 286.</p>

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

Original application for mandamus to compel the respondent to report and enter upon the county fee books the amount of fees earned by him as county clerk of Brown county, and pay the balance due the county into-the treasury.

<p>1. Review: Conflicting Evidence. A verdict rendered upon conflict- • ing evidence will not be disturbed if there is sufficient evidence to sustain it.</p> <p>2. Witnesses: Credibility. The trier or triers of a cause cannot disregard other testimony of a witness because the witness, while testifying, made a misstatement of a material fact, unless the false statement was willfully and intentionally made.</p> <p>3.-:-. It is for the jury to determine whether a false statement by a witness was willful and intentional, or made through mistake and honestly.</p>

Error from, the district court of Lancaster county. Tried below before Hall, J. Where a transfer to a relative deprives creditors of payment for goods sold to the transferrer, it devolves upon the transferee to prove the actual consideration paid, and the bona fides of the transaction. (Bartlett v. Cheesbrough, 23 Neb., 767; Garson v. Stevens, 40 Neb., 112; Phmmer v. Pummel, 26 Neb., 142; First Nat.

<p>1. Fraudulent Conveyances: Preferring Ckeditobs. An insolvent debtor has the right to pay or secure a creditor to the exclusion of others, and the intention to defraud cannot be inferred from the mere fact that such preference was given.</p> <p>2. Review: Instructions. An allegation of error as to the giving of a group of instructions is insufficient, unless all the instructions included in such group are erroneous.</p> <p>3. Evidence: Lost Documents. Parol testimony is not admissible to prove the contents of a written document until its absence is accounted for.</p>

Original application for mandamus to compel the mayor and council of the city of Kearney to make an appropriation and levy a tax to pay for water furnished by relator to the city.

<p>1. Statutes: Construction. A legislative enactment will be construed to operate only prospectively, unless the intent of the legislature to the contrary is plainly expressed.</p> <p>2.-: Municipal Corporations: Taxes: Water Companies. Held, That that portion of the act approved March 31, 1887, entitled “An act to amend section 69 of- article 1 of chapter 14 of the Compiled Statutes of Nebraska, and to repeal said section” (Session Laws, 1887, p. 291, ch. 12), which provides that a city of the second class or village may enact an- ordinance providing for the levying of a tax not exceeding seven mills on the assessed valuation in any one year “to pay for water furnished such city or village under contract” has no retrospective operation.</p>

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

Error, from the district court of Adams county. Tried below before Beall, J. This action is properly brought by plaintiffs below. They have legal capacity to bring this suit. Where an estate has been administered and all claims against it paid, and only one claim outstanding in its favor, which the administrator is unwilling to sue, and which 1 r a number of years he fails and neglects to protect, the heirs can bring the suit.

<p>Surface Water: Drainage: Damages: Trial: Admissions. Ib an action for damages alleged to have been caused by tbe drainage of surface water from a pond on defendant’s land into a draw, by wbicb said water was conducted to and across tbe land of plaintiff, an admission by plaintiff that tbe draw was a natural waterway and .bad, since bis ownership of tbe land claimed to bare been damaged, been sucb a waterway, and that tbe water generally from that portion of tbe country bad flowed through this ravine, precluded tbe possibility of a recovery of damages for tbe destruction of tbe grass in tbe bed of sucb draw on bis premises caused by tbe additional flowage resulting from tbe aforesaid drainage.</p>

Error from the district court of Brown county. Held: for all its liabilities accruing while he remains such stockholder; and all banking corporations shall publish quarterly statements under oath of their assets and liabilities.” (Constitution, sec. 7, art. 11, under “Miscellaneous Corporations”; State v. Weston, 4 Neb., 216; Willis v. St. Paul Sanitation Co., 50 N. W. Rep. [Minn.],…

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

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

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

<p>1. Chattel Mortgages: Assignment oe Note: Principal and Agent, A sale and transfer of a negotiable note secured by mortgage operates as an assignment of tbe mortgage, and tbe transferee is not bound by the subsequent contracts of the original mortgagee with reference to the mortgaged property, in the absence of a relationship of principal and agent between them.</p> <p>2. Replevin: Demand: Costs. A defendant in replevin who unsuccessfully seeks to establish a right of possession in himself is liable for costs, although no demand was pleaded or proved.</p>

<p>Error from tbe district court of Madison county. Tried below before Allen, J.</p> <p>References: Osborn v. Moncure, 3 Wend. [N. Y.], 170; Hartley v. Case, 1 Car. & P. [Eng.], 555; Davis v. Eppingcr, 18 Cal., 379; Matthews v. Dcnsmore, 43 Mich., 461; Kansas & C. P. R. Co. v. Fitzgerald, 33 Neb., 137; Swift v. Crocker, 21 Pick. [Mass.], 241; Harris v. Tenney, 20 S. W. Rep. [Tex.], 82; Claflin v. Feibleman, 10 So. Rep. [La.], 862; Speyer v. Dimels, 21 Cal., 280; Horn v. Volcano Water Co., 13 Cal., 62; Hew Orleans Canal & Banking Co. v. Beard, 16 La. Ann., 345; Jacobs v. Hogan, 85 N. Y., 243; Heio Orleans Canal é Banldng Co. v. Stafford, 12 How. [U. S.], 450; Freeman v. Hoioe, 24 How. [U. S.], 450; Buck v. Colbath, 3 Wall, [ü. S.], 334.</p> <p>References: Harrison v. King, 9 O. St., 388; Ward v. Howard, 12 O. St., 158; Rudolph v. McDonald, 6 Neb., 164; Ashton v. Jones, 14 Neb., 429; Lunt v. Adams, 17 Me., 230; Veazie Bank v. Winn, 40 Me., 62; Staples v. Franklin Bank, 1 Met. [Mass.], 43; Levy v. Millman, 7 Ga., 167; Danforth v. Carter, 1 la., 546.</p>

<p>1. Trial: Burden oe Prooe: Highways: Injunction. Generally tlie burden of proving an issue lies on the party bolding the affirmative. Therefore, in an action to restrain county commissioners from removing plaintiff’s fences from land claimed by the commissioners to be a highway, the plaintiff alleging that no highway existed and the' defendants alleging that there was a lawfully-opened road at the point, the burden was on the defendants to establish the existence of the highway.</p> <p>2. Highways: Section Lines: Damages. Under the present law (Compiled Statutes, ch. 78; Session Laws, 1879, p. 120), all section lines are declared to be public roads, but they cannot be opened as such, nor can lands be appropriated therefor, until the steps provided by statute have been taken for opening such roads and ascertaining the damages.</p> <p>3.-:-•: Statutes. The operation of the act of 1873, making section lines in certain counties public highways, was so far modified by the act of 1879 that section lines not «sed as roads for five years before the passage of the latter act cannot be opened as such without complying with the requirements of the act of 1879.</p> <p>4. Statutes: Titles: Amendments. Where an act has been passed complete in itself, the legislature may, under the title of an act to amend such act, substitute another law of similar complete character, and, so long as its provisions are germane to the title and subject of the act amended, it may be valid, although it may operate incidentally to modify other statutes.</p>

<p>1. Executors and Administrators: Final Account: Receipts. In the final accounting of an administrator the beneficiaries of the estate are not bound by the terms of receipts presented by the administrator. They may be heard on the accounting to deny the fact that payments were made as shown by the receipts.</p> <p>2. -: -:--. An administrator presenting in support of his final accounting receipts of a distributee of the estate, such distributee may oppose the allowance of credits thereon on the ground that the receipts were obtained by fraud and payments not made as shown thereby.</p> <p>3. -: -: Commingling Funds: Interest. An administrator who has mingled the funds of the estate with his own and used them for his own benefit is chargeable with interest thereon.</p> <p>4. -:--: -: -. The same rule obtains where he has mingled the funds with those of strangers in his possession and under his control; and where they have been deposited in bank to the credit of such strangers he may be charged with interest although it does not appear that he derived individual benefit therefrom.</p> <p>5. -: - — : -: -. Evidence examined, and held to sustain the action of the trial court in disallowing certain items in an administrator’s account and charging him with interest on funds in his possession.</p>

Tried below before Stull, J. One cannot be convicted as a principal in the commission of a crime under a charge of being an accessory before the fact. (Hill v. braie, 42 Neb., 505; Walrath v. State, 8 Neb., 80; Wagner v. State, 43 Neb., 2.) The judgment should be reversed for error in the instruction relating to the alibi.

<p>1. Homestead: Conveyance to Wiee: Judgment Creditors oe Husband. A wife, who by mesne conveyance from her husband acquires property exempt as the homestead of the family, takes the title thereof unincumbered by judgments against the husband, although the purpose of such conveyance may have been to defraud creditors of the latter. (Munson v. Garter, 40 Neb., 417.)</p> <p>2. -: Value: Incumbrances. Section 1, chapter 36, Compiled Statutes, exempts to those persons within its provisions a homestead not exceeding $2,000 in value over and above incumbrances. The exemption in such case is determined not from the value of the fee-simple title but from the value of the claimant’s interest in the premises. (Soy v. Anderson, 39 Neb., 386.)</p>

Error from the district court of Johnson county. Tried below before Bush, J. So far as the creditors of the old bank are concerned, there was such a merger as created a legal liability on the part of defendant for the debts of the old bank. (.Metropolitan Nat. Bank v. Claggett, 141 U. S., 520; Earns v. Exchange Bank of Jefferson City, T9 Mo., 182; Michigan Ins. Bank v. Eldred, 143 U. S., 293; Coffey v. Nat. Bank of Missouri, 46 Mo., 140; Kelsey v. Nat.

Error from the district court of Red Willow county. Tried below before Welty, J. The action could be sustained as an action on the original contract, under the allegation that warrants were issued and payment refused when duly presented. The action could also be sustained on the contract, because the agreement provided for payment in cash or legally issued warrants. (Paddoolc v. Symonds, 11 Barb. [N. Y.], 117; Goldschmidt v. City of New Orleans, 5 La.

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

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

<p>1. Pleading: Answer. A general denial puts in issue all the material averments contained in the petition.</p> <p>2. negotiable Instruments: Evidence oe Indorsement. EeU, Upon a re-examination of the evidence, that it fails to support the verdict.</p>

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

Heard below before Nobbis, J. The facts are stated by the commissioner. Where alterations are apparent upon the face of an instrument, one offering it in evidence must show that the changes were made at the time the instrument was executed. (1 Devlin, Deeds, sec. 463; 1 Greenleaf, Evidence [14th ed.], sec. 564; Estate of Nagle, 134 Pa.

<p>1. Negligence: Pleading: Evidence. A general allegation of negligence is good as against a demurrer, and under such an allegation evidence of any fact which contributed to the injury sued for is competent and relevant.</p> <p>2.-: -: -. Where a pleader relies upon one or mors specific acts or omissions as negligence, then evidence of any act or omission not within some of such specifications is irrelevant.</p> <p>3. -: - — :-. The first and second points of the syllabus of Omaha & R. T. R. Go. v. Wright, 47 Neb., 886, disapproved.</p>

•Error from the district court of Fillmore county. Tried below before Hastings, J. The facts are stated in the opinion. The deed of assignment is not witnessed and is, therefore, null'and void. (.Harrison v. MoWhirter, 12 Neb., 155; Green v. Gross, 12 Neb., 123; Child v. Baker, 24 Neb., 188.) The assignment is valid.

Heard below before Bush, J. After a plat has been vacated, the land can no longer be taxed in parcels. (Merton v. Dolplin, 28 Wis., 456.)

<p>1. Depositions: Notice: Names oe Witnesses. Under our statute requiring a notice to take depositions to “specify the names of witnesses to be examined,” the deposition of “G. A. Hollem” cannot be taken under a notice specifying the name of “Gus Hahn” or “Gus Halin,” such names not being idem sonans.</p> <p>2. Physicians and Surgeons: Malpractice: Measure oe Damages. In an action against a surgeon for malpractice in setting and irea'ing a broken arm, the measure of damages is the damage accruing to the plaintiff in excess of that which would have accrued natu: ally from the breaking of his arm had he been treated with that degrei of skill ordinarily possessed by surgeons. It is not the damage resulting from the breaking of the arm.</p>

Error, from the district court of Douglas county. Tried below before Davis, J. The facts and issues appear in the opinion. The petition does not state a cause of action.

<p>Mechanics’ Liens: Mortgages: Priorities. A mortgagee who encourages the improvement of the mortgaged property by an agreement to subordinate his lien to the cost thereof, will, as to persons furnishing labor and material for use therein upon the faith of his promise, be deemed a promoter of such improvement, and their liens for labor and material so furnished will be entitled to priority over his mortgage. (Bohn Mfg. Co. v. Kowntze, 30 Neb., 719.)</p>

<p>Trial: Excluding Witnesses: Review. An application to have the witnesses excluded from the court room during the progress of the trial of the cause in which they are to be examined is addressed to the sound discretion of the trial judge. Where a request for such action is refused and no abuse of the discretion is apparent, there is no available error.</p> <p>2. Review: Conflicting Evidence. A verdict upon conflicting evidence, with sufficient evidence to sustain it, will not be disturbed.</p> <p>3. -: Issues in Appellate Coubt. In an appeal from the county court to the district court, the cause must be tried on the same issues as were tried in the county court, unless some new matter has arisen since the trial there, such as payment, etc. {Fuller ». Selvroeder, 20 Neb., 631.)</p> <p>4. Conversion of Note: Measure op Damages. The general rule is that in an action for the conversion of a promissory note, the measure of damages in the event of a recovery is the value of the note at the time of its appropriation, with interest thereon.</p> <p>5. Negotiable Instruments: Interest: Conversion: Actions. A promissory note which provided for interest annually on the principal sum evidenced by it, had been for a number of years in the possession of one who it was determined was not the owner of it or entitled to its possession, but who, during the time he had the note in possession, collected the annual installments of interest as they • became due, and appropriated them to his own use. Held, That an action would lie and could be maintained in favor of the owner of the note for the aggregate amounts of the payments of interest so collected against the party who received and appropriated them.</p> <p>6. Rulings on Evidence: Harmless Error. Alleged errors in relatioi to the exclusion of evidence examined, and held that, if any errors in the action of the court, inasmuch as evidence of a like character and to the same effect of that excluded was admitted or appeared in other portions of the evidence, both prior a"d subsequent to the time of its exclusion, they were without prejudice.</p>

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

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

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

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

<p>1. Courts: Rules: Review. Courts of general jurisdicti'on possess Inherent power to make and enforce needful rules for the transaction of business before them, and in the absence of a clear abuse of such power their discretion in that regard will not be controlled by courts of appellate jurisdiction.</p> <p>2. Review: New Trial: Assignments op Error. Rulings, except such as are made during the trial of a cause, to be available as grounds for the reversal of the judgment by proceedings in error, should he specially assigned in the motion for a new trial.</p>

Error from the district court of Washington county. Tried below before Duffie, J. A foreign corporation having no office, no business, no agents, no officers, and no property in this state cannot be sued here upon a transaction arising out of a contract entered into without the state, and a judgment in personam cannot be obtained against it in Nebraska by serving a summons on its secretary while temporarily in this state on private business. {M’Queen v. 'Middleton Mfg.

<p>1. Record for Review: Journal Entries. In the record presented to this court appeared a copy of a journal entry in which was set forth the overruling of a demurrer by the trial court and that the demurrant failed to plead or answer further, but elected to stand on the demurrer. Held, That such recitals must be taken by this court as true statements of what occurred in the trial court.</p> <p>2. Actions: Name of Firm. The provisions of section 24 of the Code of Civil Procedure in relation to the institution of an action in the name of a firm are special in their character, to be strictly construed, and the prescribed mode of procedure must be closely followed.</p> <p>3. Partnership: Pleading. If, in an action commenced by a partnership in the firm name, there is no statement in the petition that it was “formed for the purpose of carrying on any trade or business, or for the purpose of holding any species of property in this state,” the pleading is open to attack by demurrer on the second ground assigned by section 94 of the Code, viz., “That the plaintiff has not legal capacity to sue.”</p> <p>4. Conversion: Pleading: Names: Notes: Chattel Mortgages. The action herein was one of conversion to recover the value of property, of which it was alleged the firm had a special ownership by virtue of a chattel mortgage. Neither the mortgage nor a copy thereof was attached to or appeared in the petition, but if it had been pleaded that the mortgage was executed to the partnership by its firm name, it would not have constituted it such an action as is contemplated by section 23 of our Code, which is as follows: “In all actions upon bills of exchange or promissory notes or other written instruments, whenever any of the parties thereto are designated by the initial letter or letters or some contraction of the Christian or first name or names, it shall he sufficient to designate such person by the name, initial letter or letters, or contraction of the first name or names, instead of stating the Christian or first name or names in full.”</p>

<p>1. Divorce and Alimony. Alimony may be defined to be such sum as is ordered by the court to be pay! to the wife by the husband, for her support during the time she lives separate from him, or to be paid by her late husband for her maintenance after divorce from the marriage tie. This latter is a creation of modern law and is what is known as permanent alimony. (2 Bishop, Marriage & Divorce, see. 351.)</p> <p>'2.-. A husband cannot, in this state, whether he or the wife be granted the divorce, recover alimony to be paid out of the divorced wife’s separate estate.</p> <p>3. -. Section 10, chapter 25, Compiled Statutes, which reads, “A • petition or bill of divorce, alimony, and maintenance may be exhibited by a wife in her own name, as well as a husband; and in all cases the respondent may answer such petition or bill without oath; and in all cases of divorce, alimony, and maintenance, when personal service cannot be had, service by publication may be made as is provided by law in other civil cases under the Code of ' Civil Procedure,” held, to confer upon the wife the right to commence an action of divorce in her own name and without the intervention in the suit of a next friend as was formerly required, and not to authorize the granting of alimony or maintenance to the husband, to be paid from the estate of the former wife.</p> <p>4. Bill of Exceptions: Omission oe Evidence. When it appears from statements in the bill of exceptions that it'does not contain all the evidence introduced at the trial of the case, such must be taken to be the fact, in the absence of any other or further proof on the subject than the certificate to the bill to the effect that it contains all the evidence.</p> <p>5. -: -: Review. Where a bill of exceptions does riot contain all the evidence adduced at the trial, the evidence will not be examined by this court to ascertain whether it was sufficient to support the finding and decree of the trial court.</p> <p>C. Review: Objections. The record presented to this court did not disclose that any objections were made in the district court to its trial and adjudication in this, an action for divorce, of the alleged rights of a husband in real estate, the title to which rested in the wife. Held, That the questions will not be considered in this court.</p>

<p>1. Bailment: Teams: Negligence: Damages. The hirer of a team is liable to the owner for want of ordinary care in the use of the team.</p> <p>2.-: Abuse oe Horses: Evidence. The evidence was conflicting. Held, That a verdict for plaintiff would not be disturbed.</p>

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

' Original application for mandamus to compel the supervisors of Sherman county to draw a warrant in favor of relators in payment of their claims against the county.

<p>1. Guaranty: Notice of Acceptance. A guarantor, as a condition precedent to his liability, is not entitled to notice of the acceptance of a guaranty in the following form: “The undersigned does hereby guaranty the faithful and full performance by the party of the second part to the contract of all the agreements and engagements therein entered into by the party of the second part.”</p> <p>2. -: Notice of Default. The neglect to notify the guarantor of the default of his principal does not operate to discharge the guarantor, unless such neglect is, on its face, unreasonable in view of all the circumstances of the case.</p> <p>3.-: Consideration: Credit. A consideration sufficient to sustain a guaranty of the faithful performance of the undertakings of the principal exists when the party for whose protection the guaranty was executed has extended credit to the principal on the faith of such guaranty.</p>

<p>Limitation of Actions: Concealment. Tbe concealment or absconding which, under section 20 of the Code of Civil Procedure, suspends the operation of the statute of limitations, must be such as affects the commencement of judicial proceedings in Nebraska, and not those of another state.</p>

<p>1. Insurance: Ownership: Misrepresentations: Rights of Mortgagee. A representation by two individuals that they were owners of the property sought to be insured, when in fact it was owned by a corporation, of the capital stock of which they were the sole proprietors, held, not such a misrepresentation as avoided the right of a mortgagee to assert its rights under a “union mortgage clause” attached by the insurer to the policy, the mortgagee having no knowledge of, or participation in, the said misrepresentation.</p> <p>2. -: -: -: Evidence. Under the circumstances above stated, it was not prejudicial error to refuse to permit the plaintiff in error to show the insolvency of the corporation grantee at the time either of the insurance affected or of the loss suffered.</p>

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

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

<p>municipal Corporations: Water-Meters: Regulations. A city of the second class having less than 5,000 inhabitants, and owning and maintaining water-works, has not the power to require an inhabitant, as a condition precedent to- the use of water, to purchase and place in position, at his own expense, a water-meter.</p>

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

Tried below before Jackson, J. Tbe facts are stated by the commissioner. The special finding of the court is a part of the record in the case and is binding between the parties. (Davis v. Neligh, 7 Neb., 78; Birdsall v. Garter, 11 Neb., 143; Rogers v. Sample, 28 Neb., 141; Scott v. Chope, 33 Neb., 41; Smith v. First Nat. Bank of Chadron, 45 Neb., 444; Causer v. Schifflxmcr, 40 Neb., 633; Smith v. Finney, 2 Neb., 139; Thompson v. Connecticut Mutual Life Ins.

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

<p>Error from the district court of Lancaster county. Tried below before Strode, J.</p> <p>References: Fitch v. Waite, 5 Conn., 121; Winlcler v. Barthel, 6 111., Ill; Mathews v. Loth, 45 Mo. App-, 155; Koch v. Losch, 31 Neb., 625; Rockioell v. Blair Savings Bank,. 31 Neb., 128; Bond v. Dolby, 17 Neb., 191; Keith v. Stetter, 25 Kan., 104; Baldtcin v. Flagg, 43 N. J. Law, 495; Hanson v. Graham, 82 Cal., 631; Haggart v. Morgan, 5 N. Y., 422; In re Thompson, 1 Wend. [N. Y.], 43; Frost v. Brisbin, 19 Wend. [N. Y.], 11; Garden v. Garden, 107 N. Car., 216; Olmstead v. Rivers, 9 Neb., 236; Blodgett v. Utley, 4 Neb., 25.</p> <p>References: Lane v. Fellows, 1 Mo., 200; Kingslamd v. Worsham, 15 Mo., 657; Ellington v. Moore, 17 Mo., 424; Fuller v. Bryan, 20 Pa. St., 144; Pfouts v. Gomford, 36 Pa. St., 420; Mandel v. Peet, 18 Ark., 236; Pitts v. Burroughs, 6 Ala., 733; Chariton County v. Moberly, 59 Mo., ‘238; Stratton v. Brigham, 2 Sneed [Tenn.], 420; Reed’s Appeal, 71 Pa. St., 378; Lawson v. Adiard, 46 Minn., 243; Keller v. Garr, 40 Minn., 428.</p>

<p>Physicians and Surgeons: Practice in Violation of Law: Information. An information which sufficiently charges the practice hy the accused of medicine and surgery in a designated county, without having first obtained from the state board of health the certificate prescribed by chapter 55, Compiled Statutes, states an offense under the provision of said chapter.</p>

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

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

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

Error from the district court of Douglas county. Tried below before Scott, J. The court erred in sustaining the motion of defendants to dissolve the attachment. (Gems v. Thompson, 11 0. St., 580; Harrison v. King, 9 O. St., 388; Seidentopf v. AnnaUl, 6 Neb., 524; Monteith v. Bax, 4 Neb., 171; Weir v. Bell, 3 Ex. Div. [Eng.], 238.) References as to invalidity of the gifts: 8 Am. & Eng.

<p>Attachment: Husband and Wife: Diets: Rights of Married Women.</p>

<p>Appeal from tlie district court of Webster county. Heard below before Beall, J.</p>

<p>1. Principal and Agent: Apparent Authority. 'Ostensible authority to act as agent may be conferred if the party to be charged as principal affirmatively or intentionally, or by lack of ordinary care, causes or allows third persons to trust and act upon such apparent agency.</p> <p>2. -: Evidence oe Authority to Receive Payment. That the party to whom money due another is paid is not in possession of the instruments by which the indebtedness is evidenced is not conclusive of the question of the authority, or lack of it, in the party receiving the money to collect it, but is a circumstance or fact to be considered in the determination of such question.</p> <p>3. Conflicting Evidence: Questions oe Fact. If differing, fair inferences may be drawn by candid, impartial minds from undisputed facts in evidence, the question to be determined is not one of law for the court, but one of fact, to be solved by the trier of the facts.</p> <p>4. Principal and Agent: Evidence. The evidence held sufficient to sustain the findings of the trial court.</p>

Error from the district court of Custer county. Tried below before Holcomb, J. The servant did not assume the risk of injury from apparent defects caused by the master’s negligence.

<p>1. Statutes: Adoption: Construction. Where the legislature adopts the statute of another state, it likewise adopts the judicial construction which it had already received by the highest court in such state.</p> <p>2. Chattel Mortgages: Registration: Attachment. Where a mortgagee of personal property, without any intention to defraud, has delayed filing his mortgage and taking possession of the property, but the instrument is in fact filed, or the mortgagee obtains and holds actual possession of the property under the mortgage before the rights or lien of any third party attaches, the lien of the mortgage is good against a creditor of the mortgagor who subsequently causes the property to be seized upon attachment or execution.</p> <p>3. -: -. Farmers cC- Merchants Bank of York v. Anthony, 39 N'eb., 343, and Spauldiny v. Johnson, 48 Neb., 830, distinguished.</p>

<p>A bill of exceptions will not be considered unless authenticated by the certificate of the clerk of the trial court.</p>

<p>1. Eminent Domain: Municipal Corporations. In this state, private property cannot be taken or damaged for public use without compensation therefor, ■ and this rule applies to municipalities and counties exercising the right of eminent domain.</p> <p>2.-: Highways: Injunction. An action will lie at the suit of a land owner to enjoin the opening of a public road across his premises, where the damages resulting from the appropriation have not been ascertained, and no provision has been made for the payment thereof.</p> <p>3.-: -: -: Parties. A county board is not a proper party defendant in an action to enjoin the opening of a highway.</p>

<p>1. Review: Incompetent Evidence. The admission of incompetent testimony is not sufficient ground for reversal in a case tried to the court without a jury.</p> <p>2. Builders’ Bonds: Liability of Sureties. The bond of a building contractor to pay for all labor performed and materials furnished under a contract with a county renders the sureties liable to a subcontractor for materials furnished.</p> <p>3. -: -. A surety on a contractor’s bond is not relieved from liability for the payment of claims for material-men because the contractor was paid at an earlier date than fixed by the contract.</p> <p>4. Review: Conflicting Evidence. -A judgment rendered upon conflicting evidence will not be disturbed by the supreme court.</p>

<p>Principal and Surety: Forgery. Where the name of one of two sureties in a bond has been forged, the other co-surety is not released, though he signed in the belief that the forged signature was genuine, if the forgery was unknown to the obligee when the instrument was delivered and accepted.</p>

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

<p>1. Mechanics’ Liens: Mortgages: Priorities. Where a party agreed, in consideration of real property being placed in the hands of his agent, that the rents and profits therefrom arising were to be collected and paid out as stipulated to certain holders of liens on such property, among whom was the aforesaid party to said agreement, such agreement will be enforced according to its terms, though thereby the otherwise existing rights of said party are modified or impaired.</p> <p>2.--:-: -. The mere fact that a loan company, as a con-' dition upon which it would make a loan for the erection of buildings on real property offered as security, required that the contemplated improvements should be conformably to plans submitted with the application for such loan, did not, for the amount paid by it out of the loan on a mortgage paramount to the liens of all parties concerned, subject the company to a direct liability to the holders of mechanics’ liens created by reason of such improvements.</p> <p>3. Review. On appeal to this court, relief can only be obtained by such parties as are appellants.</p>

. Heard below before Walton, J. The exchange has no authority to fine, suspend, or expel a member. Its charter confers no such authority. The charter of a corporation is the measure of its powers, and the enumeration of those powers implies the exclusion of all others. Such powers cannot, therefore, be extended by by-laws. A by-law is void where it is contrary to the common law, to a legislative enactment, or to the state or federal constitution.

<p>1. Equity: .Jurisdiction. As a general rule, a court of equity will not interpose an objection to its own jurisdiction on the ground that the plaintiff has an adequate remedy at law, but will retain the cause and award the relief to which the parties would have been entitled in a court of law. Following Sherwm v. Gaghagen, 39 Neb., 238.</p> <p>2. Witnesses: Transactions With Deceased Person: Evidence. It was alleged by plaintiff, an executor of a person deceased, that the defendant had received from the deceased, during her lifetime, the sum of $1,000, which he undertook to loan for her at advantageous rates, and which he falsely and fraudulently pretended to her he had so loaned, and that he had1 refused to pay the same, or any part thereof. On trial of the issues as properly involving the performance of a trust, certain letters of the defendant were introduced in evidence by plaintiff, which defendant was required to identify as a witness, and as a witness he was required by plaintiff to state simply that he had received from the deceased $1,000. Held, That the transaction between the deceased and the witness was an entirety, and that the proofs above made authorized the defendant to testify as to how little, if anything, remained unpaid to the estate of the testatrix.</p>

<p>Forcible Entry and Detainer: Landlord and Tenant: Agreement to Mortgage Crop. In an action for the possession of real property alleged to be withheld in violation of a lease between the parties the breach alleged was the failure to give a chattel mortgage on demand about the 1st of November, 1891. The first unpaid payment of rent to become due was February 1, 1892. Held, That a provision that the lessee must give a chattel mortgage on the crop each year to’ secure said note, though supplemented in the lease with another stipulation that the non-fulfillment of any of its terms would, at the election of the lessor, end the lease, did not entitle the lessor to prosecute an action of forcible entry and detainer.</p>

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

<p>1. Information: Complaint: Variance: Embezzlement. The plaintiff in error was arrested on a complaint charging him with having embezzled certain money belonging to “the school district of the city of Grand Island, Hall county, Nebraska.” The information on which he was tried charged him with having embezzled certain money belonging to “the school district of the city of Grand Island, of the county of Hall, in the state of Nebraska.” Ecld, No material variance between the complaint and the information.</p> <p>2. -:-:-. The complaint on which plaintiff in error was arrested described him as “secretary of the school board.” The information on which he was tried described him as “secretary of the board of education.” Held, No substantial variance between tbe complaint and the information.</p> <p>3. -:--:-: Preliminary Examination. When it appears that the charge in the complaint is substantially the same as that set forth in the information, a plea of a want of preliminary examination, or a variance between the complaint and the information, is unavailing.</p> <p>4. Embezzlement: County Treasurer: Receipts: Evidence: Instructions. On the 18th of September, 1891, the plaintiff in error was 'county treasurer of Hall county, and at the same time secretary of the board of education of the city of Grand Island. He was indicted for having on said date, as secretary of said “board of education,” embezzled $1,000 belonging to the school district of Grand Island. The state offered evidence which tended to show that the plaintiff in error, on said date, as secretary of the board of education, received from himself as county treasurer $3,000 of money belonging to said school district. The court instructed the jury that the records of the county treasurer’s office, showing that the plaintiff in error, as secretary of the school board, had on said date receipted to himself as county treasurer for $3,000 of money belonging to said school district, were competent evidence for them to consider in determining whether plaintiff in error, as county treasurer, had on said date paid to himself as secretary of the school board said sum of money; but refused to instruct the jury that such receipts were only prima facie evidence that plaintiff in error, as secretary of the board, had actually received said sum of money from himself as county treasurer, and that such receipts might be explained and the truth shown. Held, That the refusal to instruct as reguested was error.</p> <p>5. -: -: -- — : —-: -. The defense of the defendant in error was, and the evidence offered in his behalf tended to establish it, that on said date, while secretary of the board of education, he receipted to himself as county treasurer for $3,000; that as a matter of fact on said date he, as secretary of the school board, only received from himself as county treasurer $2,000, which sum, on said date, he paid over to the city treasurer. The court refused to submit, by an instruction, this defense to the jury. Held, Error.</p>

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

<p>1. Homestead: Conveyance to Wife: Lien of Judgment. A judgment debtor owned and occupied, with his family, sixty acres of land in Webster county of less value than $2,000. He and his wife conveyed this land to one R. for the purpose of having the latter convey the land to the wife of the judgment debtor. This was done. The judgment against the homestead owner was also against R. In a suit to subject said land to the payment of said judgment, held, (1) that the motive which influenced the homestead owner in having the title of this land conveyed to his wife was an immaterial inquiry, as the property was not susceptible of a fraudulent alienation; (2) that R. did not own the real estate, but held the legal title in trust for the wife, and that the latter, by the conveyance from R., did not take the land burdened with the judgment.</p> <p>2. Acknowledgment: Mistake in Certificate. The deed to R. was actually acknowledged in Nuckolls county, before a notary public thereof, but by mistake he certified that he was a notary public of Webster county, where the deed was recorded. Meld, (1) That the rights of the judgment creditor were not affected by this mistake of the notary public; (2) that the deed having been actually signed, acknowledged, and delivered, conveyed the legal title to R.</p> <p>3. Lien of Judgment. Where the legal title to real estate is in the name of the judgment debtor, nevertheless the lien of a judgment against him attaches only to the actual interest which he has in the real estate.</p> <p>4. Judicial Sales: Power oe Court to Vacate. If there has been fraud or unfairness, irregularity, or disregard of the statute in making a judicial sale, the district court is invested with the discretion to set such sale aside.</p> <p>5. -: -. But when such sale has been fairly conducted and made, when all the provisions of the statute have been complied with, when the property has been sold for two-thirds of its appraised value, and the sale has been duly reported to the court and no objections are interposed to its confirmation, the district court has not the discretion to arbitrarily set such sale aside, but should confirm it.</p>

<p>Rulings on Evidence: Assignments oe Error: Review. Where no complaint is made in the motion for a new trial as to the ruling of the court in admitting or excluding evidence, either specifically or in the language of the statute, namely, “Error of law occurring at the trial” (Code, sec. 314), this court will not review an assignment in a petition in error that the district court erred in admitting or excluding certain evidence on the trial.</p>

<p>1» Review: Presumptions: Bill of Exceptions. When a bill of exceptions has been quashed, this court will conclusively presume that evidence was introduced on the trial which sustained the judgment rendered.</p> <p>2. Judgment Nunc Pro Tunc: Courts. The authority of courts, both of law and equity, to enter a judgment or decree nunc pro tunc does not depend upon statute. It is an inherent power lodged in the courts.</p> <p>3. —--: -. If a judgment in fact was rendered, if an order in fact was made, and such judgment or order not recorded, then the court, at any time afterwards, in a proper proceeding and upon a proper showing, is invested with the power to render nunc pro time such judgment or make such order.</p> <p>4. -: Bill of Exceptions: Review. Eleven months after overruling a motion for a new trial the court, on motion, entered judgment nunc pro tunc on the verdict. The motion was resisted and a bill of exceptions settled. The judge certified that the bill of exceptions consisted of fourteen pages, numbered from one to fourteen, both inclusive. He did not certify that it contained any of the evidence used on hearing of the motion. Prom the bill of exceptions brought here the first eight pages were missing. Held, (1) That such bill of exceptions would not be considered for any purpose; (2) that the supreme court would presume that the district court, on the hearing of said motion, had before it evidence showing that a judgment had in fact been rendered or ordered at the time the motion for a new trial was overruled.</p>

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

<p>1. Mortgage: Evidence oe Payment. Evidence examined, and held to sustain a finding that a mortgage in controversy had not been paid and thereafter delivered to a stranger as security to a new debt.</p> <p>2. Pledges: Notes. Where a note valid between the parties has been pledged, the pledgee may recover from the maher the whole amount of the note.</p> <p>3.-: -: Action by Pledgee. The pledgee of a note may, upon its maturity, maintain an action thereon or enforce security thereto, although the debt for which it is pledged is not yet due.</p> <p>4. Mortgages: Rights oe Junior Mortgagee: Pleading. A junior mortgagee in a foreclosure case who does not pray for a foreclosure is entitled only to a decree fixing his priority and directing distribution, in case of sale, accordingly.</p>

<p>Set-Off: Insolvent Banks: Action by Assignee. The defendant in an action hy the assignee to recover money due to an insolvent banking corporation may set off against the amount dwing by him to the bank an indebtedness of the latter to him. Salladin v. Mitchell, 42 Neb., 859, followed.</p>

Error from the district court of Red Willow county. Tried below before Welty, J. The facts are stated by the commissioner. The court erred in denying the application of the administrator without hearing any evidence and in holding that the question as to who was entitled to the partnership funds could not be inquired into in this proceeding. (Code, secs. 854, 855; Wiltsie, Mortgage Foreclosure, secs. 750, 758; Union Ins.

Original application for mandamus to compel respondent, as judge of the first judicial district, to fix the amount of a supersedeas bond 'upon appeal from an order appointing a receiver.

Error from the district court of Otoe county. Tried below before Chapman, J. References as to the validity of the arbitration clause and tbe conclusiveness of tbe award: Scott v. Avery, 5 H. L. Cas. [Eng.], 811; Viney v. Bignold, 20 Q. B. Div. [Eng.], 172; Wolff v. Liverpool é London & Globe Ins. Co., 21 Yrooxn [N. J.],453; Hall v. H or walk Fire Ins. Co., 57 Conn., 105-114; Adams v. South British Ins. Co., 70 Cal., 198; Carroll v. Girard Fire Ins.

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

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

Error from the district court of Gage county. Tried below before Letton, J. The board had authority to enter into the written contract to employ H. W. Killen as teacher. He was qualified to teach. The contract is binding on the district Mandamus is the proper, remedy.

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

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

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

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

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

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

Error from the district court of Lancaster county. Tried below before Strode, J. See opinion for cases referred to by counsel.

<p>Banks and Banking: Receivers: Trust Funds.</p>

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

<p>Banks and Banking: Receivers: Trust Funds.</p>

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

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

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

Error from the district court of Douglas county. Tried below before Keysor, J. Where the statements warranted by the assured are untrue, he cannot recover. {¿Etna Life Ins. Co, v. France, 91 U. S., 510; Connecticut Mutual Life Ins. Co. v. Pyle, 44 O. St., 19; Baumgart v. Modern Woodmen of America, 85 Wis., 546; Cobb v. Covenant Mutual Benefit Ass’n, 153 Mass.,-176; Fitsrandolph v. Mutual Belief Society, 17 Can. S. C., 338; Jeffries v. Economical Life Ins. Co., 22 Wall. [XJ.

<p>1.Bill of Exceptions: Submission■ to Adverse Party: Extension of Time. Section 311 of the Code of Civil Procedure fixes and limits the time within which proposed hills of exceptions may be submitted to the adverse party. In the absence of any order, the party excepting has for this purpose fifteen days from the adjournment sine die of the term at which judgment is rendered or at which a motion for a new trial is ruled on. The court may in its discretion allow additional time, not exceeding forty days from such adjournment. Upon due showing of diligence, and not otherwise, the judge who tried the cause may further extend the time, but not beyond forty days additional.</p> <p>2.-: Delay of Stenographer: Extension of Time. The fact that the party excepting has been diligent, and the delay was caused by the default of the reporter in preparing a transcript, does not authorize the submission of a bill after the expiration of eighty days from the adjournment of the term.</p> <p>3.-: --: -. Richards v. State, 22 Neb., 145, overruled on the point stated in the first paragraph of the syllabus thereof.</p>

<p>1. Lease of School-Lands: Registration of Assignment. The statutes relating to the leasing of school-lands provide, among other things, that no assignment of a lease contract shall be valid unless the same he entered of record in the office of the commissioner of public lands and buildings. Other sections provide for the forfeiture of leases for non-payment of rent and the releasing of the land, with a further provision that the owner of any contract of lease so forfeited may redeem the same by paying all delinquencies and costs, at any time before such land is again sold or leased. Held, That the provision with regard to assignments is for the protection of the state, and that no- assignee obtains any right as against the state until the assignment has been entered of record.</p> <p>2. --: -: Right of Redemption. An assignee whose assignment has not been so entered of record is not entitled to redeem from a forfeiture of the lease.</p>

<p>1. Corporations: Compromise. A corporation has power to compromise a doubtful claim against it, although such doubt arises in. regard to the power of the corporation to enter into the contract creating the claim.</p> <p>2. Insurance: Compromise: Promissory Note: Liability op Insurer. A mutual insurance company agreed to insure a mare against accident, and at the time of the application received a premium note from the insured. The mare was injured by accident. Thereafter the company issued its policy according to its agreement, with knowledge of the loss, and entered into arbitration to adjust the loss. An award was made, which the company did not pay. ^ The insured, in order to avoid “further trouble and annoyance,” accepted the company’s promissory note for a less sum than the award, payable at a future date. The company had in the meantime collected the premium note. Held, That it was liable for the amount of the note, whether or not it had power under the law to accept such risks..</p>

<p>1. Contracts: Rescission: Time: Affirmance. The right to rescind a contract on account 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 deemed an election to affirm the contract under which it is received. (American Building é Loan Association v. Rainbolt, 48 Neb., 434.)</p> <p>2. --: Fraud: Election of Remedies. One who is deceived by means of the fraudulent representations of another may elect to rescind the contract and reclaim the property parted with, or to affirm the agreement and pursue his ordinary remedy by an action thereon. Such remedies are, however, not concurrent, but inconsistent, and by electing to pursue one with a knowledge of the facts he waives his right to the other. ( First Nat. Bank of Ohadron v. McKinney, 47 Neb., 149.)</p> <p>3. -: -: Affirmance. Evidence examined, and held to establish an affirmance by the plaintiff of the contract sought to be rescinded on the ground of fraud.</p>

Error from the district court of Douglas county. Tried below before Ambrose, J. By failure to terminate the contract by giving thirty days’ notice, and by the acts of the parties thereto on and subsequent to December 1, 1891, the contract was renewed for the year 1892, and was in full force and effect at the commencement of this action. {Brady v. Flint, 23 Neb., 785; Yates v. Kinney, 19 Neb., 275; Schuyler v. Smith, 51 N. Y., 309; Critchfield v. Remaley, 21 Neb., 178;…

<p>Municipal Corporations: Special Assessments. It is a rule of struction peculiarly applicable to special assessments authorized by section 6, article 9, of the constitution that the record must show affirmatively a compliance with all the conditions essential to a valid exercise of the taxing power, and that the omission of such facts will not be supplied by presumptions.</p> <p>2.-: -: Award oe Damages. An award of damage pursuant to provision of section 116, charter of the city of Omaha (Compiled Statutes, ch. 12a), upon the change of an established .grade, should show affirmatively that the appraisers appointed for such purpose took into consideration the benefits thereby accruing to the property in question and that the award or finding so made represents the difference or balance in favor of the property owner.</p> <p>3. -: -. Both section 6, article 9, constitution, 1875, and the charter of the city of Omaha by implication limit the amount of assessment for local improvements to the special benefits severally accruing to the lots or parcels of land thereby affected. (Gain v. City of Omaha, 42 Neb., 120.)</p>

<p>1. Statute of Frauds: Sale oe Land: Agency. The contract of an agent in the name of his principal for the sale of lands in this state is void under the provision of our statute of frauds, unles3 the authority of the latter is evidenced in writing. (Morgan v. Bergen, 3 Neb., 209.)</p> <p>2. Principal and Agent: Ratification. Knowledge by the principal of the material facts is an essential element of an effective ratification by him of the unauthorized act of his agent.</p> <p>3. -: Statute oe Frauds. Held, From an examination of the evidence, (1) that the agreement sought to be enforced is void under the provisions of the statute of frauds; (2) that the law will not from the facts disclosed imply a ratification thereof by the defendant.</p>

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

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