Volume 50 — Nebraska Reports

<p>1. Appeal from Board of Equalization. No appeal will lie from the determination of a board of equalization on a hearing of a matter of equalization of an assessment of taxes, unless an appeal is provided. by law.</p> <p>2. -: .Judgment. The decision of a board in the equalization of an assessment of taxes is final and the consequent order a final one; hence it may be reviewed by an error proceeding.</p> <p>3. -. As a general rule, a proceeding in error to review the order of a board of equalization, in" a matter within its jurisdiction, will afford an adequate remedy.</p> <p>4. Taxation: Injunction: Pleading and Prooe. In an action to enjoin the collection of taxes resulting from an order of a hoard of equalization, where it is claimed a remedy by an error proceeding would be inadequate, the facts upon which such claim is based must be pleaded and proved.</p>

<p>1. Action: Definition. “The term ‘action’ is a comprehensive one, and is applicable to almost any proceeding in a court of justice, by which an individual pursues that remedy which the law affords him.” (1 Ency. Pl. & Pr„ 110.)</p> <p>2. Cause: Definition. A cause is “a suit, litigation, or action. Any question, civil or criminal, contested before a court of justice.” (Black, Law Dictionary.)</p> <p>3.'Attachment: Motion to Dissolve: Trial: Costs. The hearing of a motion to dissolve an attachment is a “trial” of the issues of law or fact, or both, in an action or cause within the meaning of the term employed in our Code, and the provisions of the fee bill fixing the fees of justices of the peace, and a charge of one dollar taxed and collected with the costs of a case for a second day’s attendance upon such hearing by a justice of the peace was not the charging or taking of illegal fees.</p>

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

<p>Error from the district court of Lancaster county. Tried below before Tibbets, J.</p> <p>References: Boudinot v. Bradford, 2 Yeates [Pa.], 170;. Eyster v. Young, 3 Yeates [Pa.], 511; Sneed v. Ewing, 22 Am. Dec. [Ky.], 52; Wilson v. Foslcet, 39 Am. Dec. [Mass.],. 736; Negus v. Negus, 26 Am. Rep. [Ia.], 157; Graves v.. Sheldon, 15 Am. Dec. [Vt.], 660; Young’s Appeal, 80 Am. Dec. [Pa.], 518; Yanorsdall v. Van Deventer, 51 Barb. [N. Y.], 147; Heard v. Horton, 1 Den. [N. Y.], 165.</p>

Original application for mandamus to compel the secretary of state to certify to the county clerks the names of certain persons only as nominees of the democratic party for electors for president and vice president and for other offices.

<p>Regularity of Nominating Conventions: Duties of Secretary of State: Mandamus. The decision in this case is ruled by State v. Piper, 50 Neb., 25.</p>

Original application for mandamus to compel the secretary of state to certify to the county clerks the names of certain persons as republican nominees for certain offices.

<p>1. Attachment: Levy: Receiver.. Even though a sheriff in possession of personal property for its safe keeping pending an application for a receiver is to be deemed to be a receiver, a proposition not determined, the levy of an attachment on a portion of such property without leave of the court is not void in the absence of any objection by the sheriff as custodian, or by the receiver, on that ground.</p> <p>2. Chattel Mortgages: Registration. Where the evidence showed affirmatively that a chattel mortgage was withheld from record more than a month in pursuance of an agreement so to continue to withhold it unless some change or difficulty should occur in the business affairs of the mortgagor which would make it necessary to protect the interest of the mortgagee, and the mortgagor was to notify the mortgagee of any financial difficulty the .mortgagor might meet with, upon which notification the mortgage was to be filed, held, to sufficiently establish a fraudulent purpose of both parties to the mortgage such as to render it invalid and void as to creditors of the mortgagor.</p> <p>3. Receivers: Sale: Time. A decree required a receiver to sell the assets of an insolvent firm on a day named. The receiver, without other authority, advertised and sold such assets after the date fixed by the decree. Held, That such sale was absolutely void, and not merely irregular in such a sense that a confirmation over objections could render it valid.</p>

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

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

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

<p>1. Pending Actions. Within the meaning of section 12, chapter 25, Compiled Statutes, an action is pending from its commencement until its final determination on appeal or error, or until the time fixed by statute for prosecuting an appeal or an error proceeding has expired.</p> <p>2. Divorce: Alimony Pendente Lite: Discretion oe Court. What sum a husband may be required to pay to his wife for her support during the pendency of a divorce suit for her “expenses” in prosecuting or defending the action, for counsel fees, and whether such sums shall he paid before the final hearing of the action and as a condition precedent to the right of the husband to further prosecute or defend, are matters within the discretion of the district court.</p> <p>3.--•: -: -. It is equally within the discretion of the court to postpone until the final hearing of the case allowances made and then render a decree against the husband therefor.</p> <p>4. -. Allowances made in a divorce suit by a district court for the temporary support of the wife for “expenses” and attorney’s fees will not be disturbed unless it appears that the court abused its discretion.</p>

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

<p>1. Husband, and Wife: Ownership op Property. Under the common law, in force in this state prior to the taking effect of the Married Woman’s Act, June 1, 1871, the wife’s chattels became those of the husband and her choses in action became his when reduced to possession.</p> <p>2. -: -: Proceeds op Insurance Policy: Rights op Creditors. Prior to 1871, a wife received moneys from the estates of her relatives, which she immediately delivered to her husband, who invested them in property in his own name. Certain of this property was insured against fire. It was destroyed by fire and he executed an assignment of the policy to his wife, ostensibly for the purpose of repaying her moneys so by him received. It was not shown that when the husband received the money there was any agreement between him and his wife for its repayment, or that it should be treated as a loan. In a contest between the wife and the husband’s creditors, held, that the money became his under the law as it existed when it was received; that the subsequent assignment of the policy of insurance to the wife was without consideration, and that the equities of creditors who had also procured assignments of the policy, or liens hy garnishment proceedings upon its proceeds, were superior to those of the wife.</p>

Original application for mandamus to compel the auditor of public accounts to issue- a warrant in payment of relator’s claim for bounty on beet-sugar, under chapter 1, Session Laws of 1895. The,facts are stated in the commissioner’s opinion, Where a producer of sugar accepts the offer of a bounty from the state and complies with the statute, it would seem to be as much of a contract as it is possible for any citizen to make with the government.

Error from the district court of Saline county. Tried below before Hastings, J. The opinion contains a statement of the case. Whether there was due diligence in presenting the check for payment was a question for the jury.

<p>Alley: Notice of Existence: Conflicting Evidence. The evidence in this case, although conflicting, held sufficient to sustain the decree appealed from.</p>

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

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

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

<p>Error to the district court for Lancaster county. Tried below before Hall, Holmes, and Cornish, JJ.</p>

<p>Rehearing of case reported in 48 Neb., 299.</p>

<p>Rehearing of case reported in 48 Neb., 317.</p>

Tried below before Norris, J. The opinion contains a statement of the facts. The instruction requested by defendant below was erroneously refused. (State v. Wilkins, 28 Atl. Rep. [Vt.], 327; Baceio v. People, 41 N. Y., 265; Higgins v. People, 58 N. Y., 377.) The motion for a new trial could not lawfully be heard before a judge other than the one who presided at the trial.

<p>1. Review: Unautiienticated Bill of Exceptions. A bill of exceptions which is not authenticated by the certificate of the clerk of the trial court is not entitled to consideration in this court.</p> <p>2. -: -. Where to an examination and settlement of questions argued to this court an inspection of the evidence contained in a bill of exceptions is necessary, and such bill lacks the authentication of the clerk of the trial court, the points presented may be overruled.</p>

<p>Bill of Exceptions: Authentication by Clerk. The statute by which the clerk of the district court is allowed to settle and sign a bill of exceptions, instead of the judge who heard or tried the cause in which it is sought to make such bill a part of the record, must be strictly construed, and the methods prescribed by statute, if any, for making the facts on which the clerk’s authority to settle and sign a bill of exceptions apparent of record, should be followed; and where the statute requires a showing of the facts to be by affidavit, a statement by the clerk, in the certificate, that he has personal knowledge of the facts, will not be sufficient to take the place of the required affidavit.</p>

<p>1. Issues in Appellate Court. “In an appeal from the county court to-the district court, the caiise 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.” (Halbert v. Rosenbalm, 49 Neb., 498.)</p> <p>2. Covenant Against Incumbrances: Limitation op Actions. A covenant against incumbrances in a conveyance of land is, in effect, that the premises then are free from incumbrances; and if any incumbrances'exist, the covenant is broken and a cause of action therefor accrues in favor of the covenantee, which will be barred by limitation in five years.</p>

Tried below before Norris, J. The facts are stated in the opinion. The overruling of accused’s motion for a continuance upon condition that the prosecuting attorney would admit the witnesses would testify to facts set forth in the affidavit accompanying the motion, was erroneous.

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

Original application for mandamus to compel respondent, as judge of the second judicial district, to recall an order of sale issued by the clerk of the district court of ■Oass county upon a decree of foreclosure.

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

<p>Rehearing of case reported, in 48 Neb., 27.</p>

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

<p>Rehearing of case reported in 48 Neb., 333.</p>

<p>Rehearing of case reported in 48 Neb., 563.</p>

<p>Error from the district court of Douglas county. Tried below before Ambrose, J.</p> <p>References: Barnes v. Newcomb, 89 N. Y., 115; Altaway v. Third Nat. Bank, 10 West. Rep. [Mo.], 412; Atlee v. Fink, 75 Mo., 100; Bent v. Priest, 86 Mo., 476,1 West. Rep., 749; Bliss v. Matteson, 45 N. Y., 22; Tobcy v. Robinson, 99 111., 223; Harrington v. Victoria Dock Go., 47 L. J., n. s. [Eng.], 594; Bowman v. Phillips, 3 L. R. A. [Kan.], 631; Tyler v. Larimore, 2 West. Rep. [Mo.], 177; Suits v. Taylor, 2 West. Rep. [Mo.], 579; Gray v. Hook, 4 Comst. [N. Y.], 449; Gregg v. Wyman, 58 Mass., 322; Herrick v. Gatley, 1 Daily [N. Y.], 512; Sherwood v. Saratoga & W. R. Go., 15 Barb. [N. Y.], 650; Valentine v. Stewart, 15 Cal., 387; Gooch v. Peebles, 11 S. E. Rep. [N. Car.], 421; Weidekind v. Tuolumne Water Go., 5 Am. St. Rep. [Cal.], 445; In re Goiodery, 58 Am. Rep. [Cal.], 550; Spinrad v. Finelite, 26 N. Y. Supp., 761; Daniel v. Wilber, 60 111., 526; Nicholson v. Pelanne, 14 La. Ann., 514.</p>

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

<p>Bastardy: Evidence of Offer of Marriage. In a bastardy action it is prejudicial error to admit in evidence, over proper objections, an offer of marriage by the putative father to the mother of the bastard child, made with a view to the settlement of such proceedings about to be commenced.</p>

<p>Review: Transcript: Original Pleadings. The requirement that there shall he a transcript of the proceedings of the district court filed in the supreme court is not complied with by filing the original pleadings with a certified transcript of the record showing the entry of a judgment; and under such circumstances the judgment sought to be reversed, when found from the transcript to have been within the jurisdiction of district court, will he affirmed.</p>

<p>1. Municipal Corporations: Dangerous Premises: Evidence. In a suit against a municipal corporation for damages alleged to have been sustained by plaintiff’s falling into an unguarded excavation in a lot fronting on a street, a correct plan or drawing of the excavation and the surrounding locality is competent evidence.</p> <p>2. Negligence. The law requires of a person the exercise of care and caution commensurate with the danger confronted, but this rule involves no more than the exercise of ordinary care and prudence in view of the circumstances.</p> <p>8. -: Ordinary Care. The law does not require of an old person the exercise of greater care to avoid injury than it requires of a young and vigorous one. It requires of each the exercise of ordinary care. It requires of neither the exercise of extraordinary care.</p> <p>4. -: Evidence. Whether a certain act or omission is or is not evidence of negligence is for the court, but whether such evidence convicts a party of negligence is for the jury.</p> <p>5.-: Instructions. It is error for a court to state to a jury a circumstance or group of circumstances as to which there has been evidence on the trial, and instruct that they amount to negligence. Missouri P. B. Co. v. Baier, 37 Neb., 253, followed.</p> <p>6. -: -. Such expressions as “slight negligence” and “slight want of ordinary care” should not be used in instructions, as they tend to obscure and confuse what should be stated in plain and concise language.</p> <p>7. -: Personal Injuries. In an action for damages for injuries alleged to have been sustained through the negligence of another, there is no such issue as the slight negligence of any one. 8. -: -. The doctrine of comparative negligence is not in force in this' state. Our courts recognize no degrees of negligence. The rule is that if a person himself, in the exercise of ordinary care, is injured through the negligence of another, he may recover; but if his own negligence contributed to or was the proximate cause of the injury he cannot recover.</p>

Error from the district court of Douglas county. Tried below before Fawcett, J. The opinion contains a statement of the case. The facts presented make a proper case for statutory interpleader. (3 Pomeroy, Equity Jurisprudence, secs. 1320, 1329; Rood, Garnishment, sec. 331; Fitch v. Brower, 42 N. J. Eq., 300; Bishop v. Holcomb, 10 Conn., 444; Vanbuskirk v. Hartford Fire Ins. Co., 14 Conn., 140; Coleman v. Scott, 27 Neb., 77; McWhirter v. Halsted, 24 Fed.

<p>1. negotiable Instruments: Bona Fide Purchasers: Indorsements. Where the payee of a negotiable promissory note indorses and delivers the same to his creditor to secure the payment of a debt owing to Mm, such creditor becomes an innocent holder of said note and acquires a lien thereon for the amount of his debt, provided he took it before maturity and without notice of any defenses thereto.</p> <p>2. -:--:--. In such case, if another creditor of the payee, to secure his debt, pays the claim of the indorsee and takes an assignment of the note, he will, by such transaction, acquire the same lien and title to the note which his indorser had, whether the second creditor acquired it before or after maturity, and with or without knowledge of defenses existing against the note.</p> <p>S. -: -: -. But one who purchases for value a negotiable note, either before or after its maturity, and with knowledge of a defense existing against the same, is entitled to enforce the collection of the entire note, provided his assignor was an innocent purchaser, before due, for value, in the usual course of business.</p> <p>4. -: -: --. The purchaser of a negotiable promissory note at an execution or attachment sale thereof acquires thereby the interest which the execution or attachment defendant had in said note, and occupies the same relation to the maker of said note as he would had said note been indorsed to him without recourse by the payee.</p>

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

Error from the district court of Douglas county. Tried below before Ogden, J. The facts are stated by the commissioner. The agent’s action in attempting to cancel the policies was a flagrant violation of the duties he owed his employer, and should not be sanctioned by the courts. It was entirely inconsistent with the law 'which governs the relation of principal and agent. (Davis v. Hamlin, 108 111., 39; Warren v. Burt, 58 Fed. Rep., 101; American Bteam Boiler Ins.

Heard below before Keysor, J. The facts are stated by the commissioner. Appellant is. not required to reconstruct the buildings destroyed by the hurricane August 22, 1896. (Taylor, Landlord & Tenant [7th ed.], sec. 358; Whitaker v. Hawley, 25 Kan., 692; Pollard v. Shaaffer, 1 Dal. [Pa.], 210; 12 Am. & Eng. Ency.

<p>Landlord and Tenant: Rent: To Whom Payable. To an action for rent the defendant pleaded that he had been induced to enter into the lease by the plaintiff’s falsely and fraudulently representing to him that he was the owner of the demised premises, whereas in fact he was not the owner and had no authority to lease the same; that thereafter the defendant had accepted a lease from and paid rent to the true owner. Held, Not to state a defense, there being no averment that the lessee had not entered into possession, or that he had been kept out of possession or evicted by the holder of the paramount title, or that he had surrendered the lease.</p>

<p>1. Criminal Law: Intent: Evidence. In a criminal case where the intention of the accused is a material fact, and he takes the stand on his own behalf, he may be asked directly what was his intention with regard to the act complained of.</p> <p>2. -: Instructions. An instruction in a criminal prosecution that if the jury should find the facts essential to establish guilt they should acquit, but if such facts had not been proven they should convict, is erroneous and ground for reversal, although it may be apparent to this court that the trial court unintentionally transposed the words “convict” and “acquit.”</p>

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

Heard below before Ferguson, J. The facts are stated by the commissioner. A judgment may be impeached on the ground of a lack of jurisdiction over the defendant by any one whose interests are adversely affected thereby, be he stranger or party defendant to the suit.

Error from the district court of Lancaster county. Tried below before Hall, J. See opinion for statement of the case. Proponents had a right, after having shown that a will was left by testator and that it had been lost, stolen, or destroyed, to prove its contents by offering what purports to be a copy, to show that it is a copy, and to have the same probated. (In re Page, 118 Ill., 576; 1 Redfield,.

<p>1. Instructions: Assignments of Error. Alleged errors in giving instructions must be specifically assigned in the motion for a new trial. Where made in gross and any one of the instructions is determined to be without error, the whole assignment will be overruled</p> <p>2. -: Repetitions. It is not error to refuse to- give an instruction where its subject-matter has been embraced in the charge to the jury.</p> <p>5. Sales: Delivery: Payment. A contract of sale of corn stated the price and also the time and place of delivery, but did not provide specifically time, place, or manner of payment. Held, That delivery and payment were to be concurrent acts, and the vendor could insist on payment in cash or money, in the strict sense of the term “current funds.”</p> <p>4. -: -: -. Held further, That it was not necessary for the vendee to have had, at any one time or on any one day of the time assigned for the delivery of the corn, sufficient money at the place of delivery to pay for all the corn, the subject of the contract. It was sufficient if, during the whole of such time, he was able, willing and ready to pay for the corn in the manner contemplated by the contract, if delivered.</p> <p>■5. Bill of Exceptions: Stipulation pop. Allowance. A stipulation in the terms, “It is hereby agreed that the clerk of the district court sign this bill of exceptions, instead of the judge who presided at the trial of this case,” held sufficient to authorize the party therein designated to sign and settle the bill of exceptions; that the words “this bill of exceptions,” in such stipulation, were equivalent to an agreement that the document to which the stipulation was attached was a true bill of exceptions.</p> <p>•6.--: Authentication. To entitle a bill of exceptions to consideration in this court it must be authenticated by the certificate of the clerk of the trial court identifying it as the bill of exceptions.</p>

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

<p>1. Trial: Memoranda by Jurors: Review. In a suit on a fire insurance policy to recover the value of a large number of insured articles destroyed the court permitted jurors, during the trial, to make memoranda of such articles and the value placed thereon by the evidence. Held, That the court did not abuse its discretion.</p> <p>2. Insurance: Misrepresentations: Evidence. The insured was unable to read and write, and the representations made by him to obtain the insurance were reduced to writing by the agent of the insurance, company. Held, (1) Whether the insured made the representations written in the policy was a question of fact for the jury; (2) that the insured was not bound by any representation written in the application which he did not make.</p> <p>3. -: -- — : -. Evidence examined, and held to sustain the finding of the jury (1) that the insured did not represent that his household goods were, at the date of his application for insurance, in the building mentioned in said application; (2) that there was no representation in the written application that said goods were at said time in said building.</p>

<p>1. Judgment Without Finding. A judgment that is not based on a finding, either general or special, is erroneous, though not for that reason void.</p> <p>2. Review: Retaining Case for Trial. Where a judgment of a county court is reversed by a district court in a proceeding in error, the district court may retain such cause for trial.</p>

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

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

<p>Motion by defendant to quash bill of exceptions.</p>

<p>Motions by defendants to qnash the bills of exceptions..</p>

<p>Bill of Exceptions: Motion to Quash: Laches. A motion to quash a bill of exceptions, which has been duly allowed by the trial judge and properly authenticated, made more than a year after the filing of the same and the transcript in this court, and after the service of briefs on the merits, comes too late.</p>

<p>Bill of Exceptions: Laches. A party seeking a bill of exceptions presented his proposed bill to the adverse party or his attorney for amendment subsequent to the expiration of the time fixed by law and the order of the trial judge, and objection to the allowance of the bill, on that ground, was distinctly made to the trial judge before the same was settled and allowed, which objection was renewed at the earliest opportunity in the appellate court, and prior . . to the briefing of the cause on the merits. Held, That the bill should be quashed. Horbaeh v. Oity of Omaha, 49 Neb., 851, fallowed.</p>

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

<p>1. Municipal Corporations: Sidewalks. The term “sidewalk” is a ‘comprehensive one, and in its broadest sense denotes that portion of the public highway set apart, by dedication, ordinance, or otherwise, for the use of persons traveling on foot.</p> <p>2. -: Liability eor Failure to Repair Street. Where a city or other municipality grades or otherwise improves any portion of a street for the purpose, and with the result, of inducing public travel thereon, there is a resulting duty to keep such portion of the street in repair and a consequent liability for the failure to do so.</p> <p>3. —-•: Duty to Repair Streets: Instructions. It is not error to charge that a city is required to keep its streets and sidewalks in a reasonably safe condition for travel by night as well as by day.</p> <p>4. -:--: -: Contributory Negligence. An instruction that it is the duty of a city to keep its streets in a reasonably safe condition for travel by all persons is not objectionable on the ground that it excludes from the jury the question of alleged contributory negligence by the plaintiff.</p> <p>5. Evidence: Witnesses: Testimony at Former Trial. Where a witness is shown to be absent from the state, his testimony given at-a former trial of the same cause is admissible if otherwise unobjectionable.</p> <p>6. -:--: ---. Nor, in the absence of a showing upon the subject, is the fact that such witness has also testified at a second trial of the cause, which has intervened between the taking of such testimony and the one at which it is offered, a sufficient objection to its introduction in evidence.</p> <p>7. -: Experiments. Some discretion is conferred upon the trial court in receiving evidence of experiments for the purpose of contradicting or corroborating other witnesses, and in order to authorize the reversal of a judgment on account of the admission or rejection of such evidence there must have been a clear abuse of discretion.</p>

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

<p>1, Review: Laches. A judgment or decree from which, no appeal has been taken within the statutory time will not be reviewed by the appellate court.</p> <p>2. Appearance: Waiver of Defects. A general appearance by a defendant in a cause is a waiver of all defects in the issuance and service of the summons, and gives the court jurisdiction.</p>

Error from the district court of Lancaster county. Tried below before Strode, J. The opinion contains a statement of the case. The court erred in not receiving and giving weight to-the parol testimony of the defendant showing the truth and conditions upon which the certificate was issued and the agreement as to when it should be in force.

<p>1. Criminal Law: Continuance: Admission as to Testimony of Absent Witness. On a motion for continuance being presented in a criminal case, if it appears that the witness or witnesses to obtain the testimony of whom the continuance is sought is or are without the jurisdiction of the court, and not within reach of its-process, and the attorney for the adverse party will admit that the witness or witnesses, if present or their depositions taken, would testify as stated in the affidavit accompanying the motion for continuance, and agree that such statement shall be introduced during the trial, as might be the testimony if taken and offered in regular form, the motion may be overruled. Whether it shall be overruled or not is a matter resting within the discretion of the trial court, and if no abuse of such discretion is disclosed by the record the action on the motion will not be disturbed in error proceedings in this court.</p> <p>2. Larceny: Vebdict Against Accused. The evidence held sufficient to sustain the verdict.</p> <p>3. Jurors. All other questions raised and 'discussed in the error proceedings to this court fall directly within and are governed by the rules announced in the opinion in the case of Barney v. State, 49 Neb., 515, and need not be again discussed at this time.</p>

<p>1. Highways: Prescription: Evidence. The existence of a legal public road over the premises of a private person may be shown by user alone, but in such case the user must have been with the knowledge of the owner and have continued the length of time necessary to bar an action to recover the title to land. This rule, however, does not apply when the user is of wild, unenclosed prairie land. Graham v. Hartnett, 10 Neb., 517, approved and followed.</p> <p>2. —--: —--. To establish a highway by prescription there must be a user by the general public under a claim of right, and which is adverse to the occupancy of the owner of the land, of some particular or defined way or track, uninterruptedly, without substantial change, for a period of time necessary to bar an action to recover the land.</p> <p>3. -: Easements. To acquire an easement or way on another’s land there must be- a use of the way for the length of time which will bar an action for the recovery of title to land, and which is under claim of right, or adverse.</p> <p>4. -. The evidence held sufficient to sustain the findings and judgment.</p>

<p>1. Pleading: Leave to Amend: Itemized Statement. A motion was made, and sustained, that plaintiff be required to attach to his petition an itemized statement of the account for goods sold and delivered, the basis of the action. The plaintiff filed an amended petition, which declared on an account for money loaned. A motion to. strike the amended petition was filed, one of its grounds being plaintiff’s non-compliance therein with the order of the court in regard to the itemized statement. This last motion was overruled. Held, That such action was equivalent to leave granted to file the amended petition.</p> <p>2. -: Amendments: Waiver of Objections. A motion to strike an amended petition from the files on the ground that it declared upon or introduced a cause of action new and different from that pleaded in the original petition was overruled. The defendant then answered to the merits of the action set forth in the amended petition and participated in a trial thereof. Held, That the right to further complain that a new cause of action was set forth in the amended petition was waived.</p> <p>3. Attachment Affidavit. An attachment affidavit must contain a statement of "the nature of plaintiff’s claim.” (Code of Civil Procedure, sec. 199.)</p> <p>4. -. A statement in such an affidavit for attachment that the action is one “upon an account for goods sold and delivered by plaintiff to defendant at his request” was sufficient to show that the action was one in which an attachment might issue and to' give the court jurisdiction of the attachment suit. The statement that it was on an account was a general description of the plaintiff’s claim, and the further words which we have quoted served to designate the kind of an account.</p> <p>5. —-: Reference to Petition. If the claim appears from the statements of the affidavit to be one for which an attachment is authorized, but its nature is not fully set forth, reference may be had to the petition. (Hart v. Barnes, 24 Neb., 782.) Ragan, C., dissenting.</p> <p>6. --: Petition: Variance. Where an attachment affidavit varies from an amended petition in the statement of the specific kind of an account in suit, and the defendant, by answering the amended petition and taking part in a trial of the issues joined, has waived the right to further object to the error, if any, in allowing the amended petition to be filed, in which it was claimed that a new cause of action was introduced, in that in the amended petition an account different in its particular character from that pleaded in the original petition was declared upon, held, that inasmuch as a reference to the petition would disclose the precise nature of the account, and hence the action could be pleaded in bar of a second attachment on the same account, the court did not err in overruling a motion to discharge the attachment on the ground, in substance, that it did not state the nature of plaintiff’s claim as contained in the amended petition.</p> <p>7. -. It is required in section 199 of the Code of Civil Procedure that in an attachment affidavit there should be set forth “the amount which the affiant believes the plaintiff ought to recover.” Held, That a slight variance in the amount stated and that actually due is immaterial, and not a fatal defect in the affidavit.</p> <p>8. Attachment: ITnmatured Claim. It is not ground for the discharge of an attachment that some portion of the sum stated in the affidavit is not due.</p> <p>9. -: -: Proof. The proof in the attachment suit adjudged sufficient to support the finding of the court sustaining the attachment.</p> <p>10. —-: -: Dismissal. It appeared that one item in the suit, as to which there was a distinct paragraph, separately numbered, in the petition, was not due at the time the action was commenced. Held, That the court did not err, at the time of rendering judgment, in sustaining a motion by plaintiff to dismiss the suit as to such item, without prejudice.</p> <p>11. Pleading: Amendment. An amendment of a pleading to conform to proof held proper in view of the facts in regard to such item, as disclosed by an examination of the petitions in the action.</p> <p>12. Reference: Additional Findings. The action of the trial court in returning the case to the referee for further finding in respect to the item as to which the petition was allowed to be amended to conform to the proof, and the reception of a supplemental report containing such finding and its consideration in the final settlement of the issues, approved.</p> <p>13. —-:-. The evidence adjudged sufficient to sustain the findings and judgment.</p>

<p>1. Insurance: Total Loss: Attorneys’ Fees: Notice oe Lien. In an action against an insurance company on its policy insuring property against loss by fire, when the property insured thereby has been totally destroyed by fire, it is provided by statute that the “court, upon rendering judgment against an insurance company on any such policy of insurance, shall allow the plaintiff a reasonable attorney’s fee, to be taxed as a part of the costs.” In such an action the summons was indorsed as follows: “If the defendant fail to appear and answer, the plaintiff will take judgment for $800, together with interest at 7 per cent from September 26, 1893, and attorney fees and costs of suit. Attest: R. W. Laflin, Clerk. By Orlando Swain, Deputy.” Held, That such indorsement was not a notice of plaintiff’s attorney’s claim of a lien for fees for his services performed in and about the suit, and further, that service of the summons so indorsed on the company did not convey notice to it of such claim of lien.</p> <p>2. -- — : -: -: Dismissal: Intervention. The attorney who instituted the suit for plaintiff applied to the trial court to he allowed to intervene and prosecute against the company his claim for fees. Held, That of the evidence filed in the matter of this application there was sufficient' to sustain findings that there had been a dismissal of the action against the company, and a settlement and extinguishment of the plaintiff’s claim against it, prior to any notice to it of any claim of the attorney’s lien for fees; hence the denial of the application was not erroneous.</p>

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

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

<p>1. Verdict: Immaterial Findings. A verdict which is responsive to all the issues made by the pleadings will not be rejected because of immaterial findings.</p> <p>2. -: Judgment: Variance. When a verdict is sufficient to authorize a judgment, and there is no substantial variance between it and the judgment, the case will not be reversed for an informality in the verdict.</p> <p>3. Replevin: Conversion: Damages. In replevin, where the property has been returned to the defendant for the failure of the plaintiff to give the statutory undertaking, and the action proceeds as one for conversion, the measure of his damages, in case the right of property and right of possession are found in his favor, is the market value of the property, with lawful interest thereon.</p>

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

<p>Appeal: Laches: Dismissal. An appeal to the supreme court not taken within six months from the date of the rendition of the decree or final order sought to be reviewed will be dismissed.</p>

<p>Railroad Companies: Right of Way: Elevators: Board oe Transportation : Constitutional Law. An order of the state board of transportation under the provisions of the act of March 31, 1887, entitled “An act to regulate railroads and prevent unjust discrimination,” etc., which requires a railroad company to surrender a portion of its right of way for an elevator site to a person or corporation engaged in the buying' and shipping of grain, contemplates the taking of property for mere private use within the prohibition of the United States constitution, and is accordingly without authority and void. (Missouri P. R. Co. v. State, 17 Sup. Ct. Rep., 130, reversing same case, 29 Neb., 550.)</p>

<p>Judgment: Injunction. In an action to enjoin the enforcement of a judgment, relief should not be granted because of the service of an unauthorized summons upon which such judgment was rendered, in the absence of a showing of the existence of a defense to the cause of action which formed the basis of the judgment assailed.</p>

Error from the district court of Douglas county. Tried below before Ferguson, J. The facts are stated by the commissioner. The assignments made and the attachment suits commenced by the assignees and levied upon the property of the company, followed by placing the company in the hands of a receiver upon its own application, constituted a general assignment for the benefit of the creditors.

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

<p>Statute of Frauds: Vendor and Vendee. The statute of frauds relative to the sale of lands will not enable one who has obtained the title and possession of real property to avoid making payment therefor merely because there had been no formal acceptance in writing of the original written offer of the purchaser.</p>

<p>I.. Fraudulent Conveyances: Consideration: Evidence: Instructions. In a proceeding to avoid a sale of personal property as having been made in fraud of the rights of creditors of a firm, the circumstances that a part of the consideration for such said was the cancellation of a debt by one partner, incurred before the partnership was entered into, and secured by an unrecorded chattel mortgage on the said property before the firm became its owner, was not one which would have justified an instruction that the sale was void, but was proper to be submitted as evidence bearing upon the good faith of such sale.</p> <p>2. Instructions: Weight oe Evidence. An instruction by which the jury was sought to be directed what weight must be attached to certain facts developed by the proofs was, on that account, erroneous, and, therefore, properly refused.</p>

<p>1. Pledge by Husband: Notice of Wife’s Title: Promissory Note. A father owned a negotiable note payable to his order, secured by a real estate mortgage. Before the maturity of the note he gave it to his daughter, and at the same time duly executed and delivered to her an assignment of the mortgage. The daughter delivered the note and mortgage assignment to her husband for deposit in a bank for collection. The husband borrowed money of the bank and pledged the note as security. Held, That the mortgage assignment accompanying the note was sufficient to put the bank on inquiry as to the husband’s title to the note.</p> <p>2. Husband and Wife: Principal and Agent. A husband may act as the agent of his wife, but in order to bind her he must previously be authorized, or she must, with a knowledge of his acts, subsequently ratify them.</p>

<p>Appeal from the district court of Hamilton county. Heard below before Bates, J.</p> <p>References: 1 Daniels, Negotiable Instruments, sec. 812; 1 Randolph, Commercial Paper, sec. 13; Tiedeman, Real Property, sec. 328; 15 Am. & Eng. Ency. Law, 843, 849; Richards v. Kountze, 4 Neb., 200; Daniels v. Densmoref 32 Neb., 40.</p>

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

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

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

<p>Error from the district court of Valley county. Tried below before Harrison, J.</p> <p>References: Hastings School District v. Galchoell, 16 Neb., 68; Holmes v. Bailey, 16 Neb., 300; Zunkle v. Cunningham„ 10 Neb., 162; Davidson v. Waldron, 31 Ill., 120; Mulligan v. Bailey, 28 Ga., 507; Bernheimer v. Marshall, 2 Minn., 61; Webb v. Bidtoell, 15 Minn., 394; Hatch v. Goddington, 32 Minn., 92; Gregory v. Karr, 36 Neb., 533; First Nat. Bank v. Gerson, 32 Pac. Rep. [Kan.], 907; Bruner v. Dyball, 42 Ill., 34; Lovett v. Burkhardt, 44 Pa., 174; Moore v. Herron, 17 Neb., 701; H%mt v. Robinson, 11 Gal., 262.</p>

<p>Continuance: Justice oe the Peace. A party to an action before a justice of the peace, who has obtained one adjournment, cannot procure another extending more than thirty days from the return day, on a general affidavit in the language of section 960 of the Code of Civil Procedure. For that purpose he must comply with section 961.</p>

Error from the district court of York county. Tried below before Bates, J. The facts and issues are stated in the opinion. The court erred in overruling the motion of defendant below, founded on its plea in the nature of abatement, that the action be dismissed.

<p>Custom and Usage: Knowledge: Contracts. The business usage of a particular individual is not admissible to interpret a contract between that individual and another in the absence of proof of knowledge by the other of such usage. Union Stock Yards Go. v. Westcott, 47 Neb., 300, followed.</p>

<p>1. Vendor and Vendee: Fraud. A purchaser of real estate has a right to rely upon the representations of his vendor touching the quality and location of the property, and the character of the improvements thereon, whenever the facts concerning which such representations are made are not within the knowledge of the purchaser..</p> <p>2.--: •-. Evidence examined, and held to sustain the judgment. for damage on account of fraudulent representations by the vendor touching the character and value of improvements upon the lands-conveyed.</p>

<p>I. Insolvent Corporations: Preferring Creditors. An insolvent corporation may, in the absence of actual fraud, prefer one or more of its creditors to the exclusion of others.</p> <p>2. -: Fraudulent Conveyances. Whether or not a conveyance by an insolvent corporation is fraudulent as to creditors cannot be. determined as a question of law, but is a question of fact, to be determined from a consideration of the evidence in each particular case. (Shaw v. Robinson, 50 Neb., 403.)</p>

<p>1. Commercial Paper: Indorsement: Title. The legal title of commercial paper indorsed “for collection” passes to the indorsee only so far as to enable him to demand and enforce payment thereof.</p> <p>2. -:-: --•: Banks and Banking. The owner of paper so indorsed may control the same until paid in full, and may intercept the proceeds thereof in the hands of an intermediate agent.</p> <p>3. Banks and Banking: Collections. The mere crediting of the account of the remitting bank by a correspondent employed by it to make collections does not create in favor of the latter such an equity as can be interposed in defense of an action by the owner of the paper so collected for the proceeds thereof.</p> <p>4. -:--: Proceeds. Evidence examined, and 7ield insufficient to prove that the position of appellant, a sub-agent for the collection of commercial paper, has been altered to its damage through the placing of the proceeds of such paper to the credit of the bank from which it was received.</p>

<p>1. Fraud in Misrepresenting Foreign Law. As a general rule, a misrepresentation wliicli embodies matter of law is one upon which, a party cannot rely, as all parties are presumed or hound to know the law; but where it is as to the law of another state, or its effect, it is not within the rule and may he fraudulent; and ignorance ,of the law may be pleaded by the one to whom the misrepresentation is made.</p> <p>2. -: Sale oe County Warrants. Where a warrant issued by a county of one state is purchased in another state in reliance upon - a misrepresentation in respect to the statute of limitations as applicable to the warrant, and on presentation and demand payment of the warrant is refused on the ground that it is not a claim which can be enforced, there arises a cause of action in favor of the purchaser and against the party who sold the warrant and made the misrepresentation.</p> <p>3. -: -. The evidence held sufficient to sustain the verdict rendered.</p>

<p>1. Burglary: Time Committed. That the act be < night-time is an essential element of the crime of burglary.</p> <p>2. —-: Information: Housebreaking. Under an information against a person for the crime of burglary, he cannot be convicted of the statutory offense of breaking and entering buildings in the daytime described in section 53 of the Criminal Code.</p> <p>3. Criminal Law: Sentence. Jurisdiction to pronounce a particular sentence imposed is as essential as jurisdiction of the person and subject-matter. If the first does not exist the sentence is void.</p>

<p>1. Fraudulent Conveyances: Insolvency: Relatives. A debtor in failing or insolvent circumstances may prefer one creditor notwithstanding the fact it may be to the exclusion of others, and this rule may include relatives of the debtor who are his creditors.</p> <p>2. -:--:-: Burden of Proof. If such transfers between relatives be attacked as fraudulent, the burden is upon the parties thereto to show the good-faith character of the transactions.</p> <p>3. -:-: -. A son may convey property to his mother in payment of a pre-existing debt to her if such a conveyance is honestly made or without fraudulent intent to the knowledge of the mother, or participated in by her.</p> <p>4. -:--: -. Findings and judgment held contrary to the conclusions established by the evidence.</p>

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

Heard below before Walton, J. Where a contract gives the benefit entirely to one person, with the exclusive sale, barter, trade, or handling thereof, it is against public policy, (Moses v. Scott, 4 So.

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

<p>Rehearing of case reported in 48 Neb., 732.</p>

<p>1. Negotiable Instruments: Action by Indorsee: Burden of Pboof. In an action by an indorsee of a negotiable promissory note against the maker, its mere production by the plaintiff, duly indorsed, raises a presumption of law that it was transferred before maturity and for value, and the burden is on the defendant to show that plaintiff is not an innocent holder.</p> <p>2. -: —-: Defense. Held, That the answer fails to state a defense.</p> <p>3. -: -: Evidence. Evidence examined, and held not to sustain the verdict.</p>

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

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

<p>Successor to Bank: Assumption of Liability: Action by Creditor: Verdict for Plaintiff: Evidence. The evidence in this case examined, and held not sufficient to sustain the judgment of the. district court. Norval, J., dissents.</p>

Original application for mandamus to compel the auditor of public accounts to issue a warrant for the salary of relator as stenographer of the seventh judicial district.

Error from the district court of Douglas county-Tried below before Hopewell, J. The facts are stated by the commissioner. Tbe action is one sounding in tort for wbicb a county is not liable unless made so by express provision of statute.

Error from the. district court of Lancaster county. Tried below before Strode, J. The estate of a parent is not chargeable for either services rendered by, or for money received from, a child or stepchild, unless it is shown that there was an express promise made by the parent to pay for'such services or to refund such money. (Woods v. Land, 30 Mo. App., 176; Bar kite’s Appeal, 126 Pa.

<p>1. Master and Servant: Vice-Principal: Railroad Companies: Injury to Employe. The defendant in error was a section hand in the employ of the railway company. He and others were hired by one Cochran, a section boss in the employ of the railway company, and they were under his control and direction while working on their section of the railway, and Cochran had authority to discharge the men hired by him. Cochran and his section men were put to work on a gravel train of the railway company. This gravel train, the crew thereof, and all the men working thereon, including Cochran and his section men, while at work with the gravel train, were under the control, direction, and subject to the orders-of a foreman named Forrest. Forrest was not invested with authority to hire or discharge the defendant in error. The defendant in error, while working on this gravel train, was injured, as he alleged, through the negligence of an order given by Forrest, and sued the railway company for damages. Held, That as to the defendant in error, Forrest was not a fellow-servant, hut a vice-principal.</p> <p>2. -: • — ——. Whether one .of several employes of the same master is a vice-principal as to his co-employes, or whether all are fellow- * servants, is not always a question of fact, nor always a question of law. Generally it is a mixed question of law and fact, and to be determined in any case by the particular facts and circumstances in evidence in the case in which it is presented.</p> <p>3. -: -. The fact that one employe is vested with authority to hire and discharge a co-employe is not conclusive evidence that as to such co-employe he is a vice-principal; nor does it follow that one employe is not a vice-principal as to his co-employes because not vested with the authority to hire and discharge them.</p> <p>4.--: -: Evidence. The most satisfactory evidence that one is, as to his co-employes, a vice-principal is that his co-employes are under his supervision, his control, and subject to his orders and directions.</p> <p>5.-: -: -. Evidence examined, and held (1) to sustain the finding of the jury that the negligence of the defendant in error was not the proximate cause of his injury; (2) not to sustain the finding of the jury that the negligence of the railway company was the proximate cause of the defendant in error’s injury.</p>

<p>1. Guaranty: Sale of Stock in Corporation: Terms: Construction. L. sold stock in a corporation to D., guarantying that it could be sold for $3,000 within one year, D. agreeing not to sell within a year without L.’s consent for less than $8,000, and that in case of sale without such consent D. should lose the difference between $3,000 and the amotint of the sale, D. agreeing to use due diligence in procuring a larger price. The stock was not sold within a year and was thereafter sold for much less than $3,000. Eeld, (1) There having been evidence tending to show exchanges of property for other stock in the same corporation during the year, it was proper to instruct the jury that the agreement contemplated a sale for money, and that D. was not required to make any efforts to exchange it for other property; (2) whether or not D. had been negligent in failing to make a sale within the year was a question of fact, and it was, therefore, not erroneous to refuse to instruct the jury that a failure to make certain specified efforts constituted negligence; (3) that D. was not required by the terms of the contract to submit to L. for acceptance or rejection all offers received by D. during the year.</p> <p>2. Action on Guaranty: Recovery by Plaintiff. Evidence held t® sustain the verdict, and instructions not to be conflicting or prejudicial to defendant.</p>

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

<p>1. Equity: Trial of Issue of Fact: Juey. The power of a court of equity to obtain the verdict of a jury on any issue or issues is preserved by the Code, and in actions equitable in their nature the trial court may, in its discretion, impanel a jury and submit to its determination such issues of fact as it deems expedient.</p> <p>2.-:--: Verdict: Judgment. When such a course is taken the verdict is at most a determination of the issues of fact submitted. The judgment need not strictly conform thereto, but the court may, on determining the other issues, enter such judgment as the whole case demands.</p> <p>3. Insurance: Mechanic’s Lien. The filing of a claim for a mechanic’s lien does not in itself establish such lien, even pri/ma facie. It is merely the performance of a condition essential to consummate the lien.</p> <p>4. -: -: Evidence. Therefore, 'in an action on a policy of insurance, one of the defenses being that the insured had permitted the property to become incumbered, contrary to a provision in the policy, it was not error to exclude from evidence the record of a claim for a mechanic’s lien, no facts being offered to establish the substantive facts creating such lien.</p> <p>5/--: Chattel Mortgages. A policy of insurance contained the following: “It is agreed that if any false statements are made in said application this policy shall be void; * * * or if the property be sold or transferred or incumbered, or upon the commencement of foreclosure proceedings; or in case any change shall take place in the title, possession, or interest of the assured in the above mentioned property; or if the assured shall not be the sole and unconditional owner in fee of said property; * * * then in each and every one of the above cases this policy shall be null and void.” It did not appear that any application had been made or required, or that any representations had been made with regard to the title. Held, That the existence of a chattel mortgage on a part of the property at the time the policy was written did not, under the clause quoted, avoid the policy.</p> <p>G. Chattel Mortgages. A chattel mortgage in this state creates merely ’ a lien, and does not pass title to the mortgagee. Musser v. King, 40 Neb., 892, followed.</p> <p>7. Insurance: Bill of Sale: Change of Possession. The voluntary execution by the insured of a bill of sale of a portion of the property, without consideration, without delivery to the vendee, without the vendee’s knowledge, without any prior contract, and with- „ out change in possession, does not create such a change in interest as to avoid the policy.</p> <p>8. -: Accoed and Satisfaction. To an action on a policy of insurance the defendant pleaded that after the loss it had made a settlement with the insured, whereby it agreed to pay a certain sum in sixty days, and that, relying on such settlement, it had accepted orders of the insured in favor of third persons for a portion oi the amount, and had admitted indebtedness in garnishment proceedings which resulted in a judgment against it for another portion, the aggregate amount assumed being less than the amount of the settlement. It was not alleged that these obligations had been paid. Held, That this neither operated as an accord and satisfaction, nor did it estop the plaintiff from rescinding the agreement on the ground of fraud.</p> <p>9. -: -: Btjbden of Peoof. To such answer the plaintiff replied denying the settlement pleaded, and then affirmatively alleging that he had agreed to accept the sum of money named on condition that it be paid in four days. Held,, That under these pleadings the burden was on the defendant to establish the settlement as it alleged it to be.</p> <p>10. Damages: Pbejudice of Juey. The mere fact.that a verdict for $2,865.30 was $105 in excess of the amount recoverable is not sufficient to show that the jury was influenced by passion or prejudice.</p> <p>11. Insurance: Attorney's Fee. Under Compiled Statutes, chapter 43, section 45, the court may, in an action on a policy covering both real and personal property, allow a reasonable attorney’s fee, based on the amount recovered on account of the real property.</p>

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

Error from the district court of Seward county. Tried below before Wheeler, J. A common carrier of goods may by special contract confine its liability to its own line, tbougb tbe goods are consigned to a place on a connecting line.

Tbe opinion contains a statement of tbe case. Tbe court erred in applying to the case at bar the doctrine announced in Bohn Mfg. Co. v. Kountis, 30 Neb., 719.

<p>1. Negotiable Instruments: Contemporaneous Contracts: Evidence. In an action on a promissory note, or other written agreement, a contemporaneous contract in writing, connected therewith by direct reference or by necessary implication, is admissible as part of the transactions involved.</p> <p>2. -: ---: Mortgages. In a promissory note otherwise in the usual form it was recited that “this note is secured by a real estate mortgage of date herewith and governed by the conditions thereof.” The mortgage referred to, after authorizing foreclosure in case of non-payment of interest or taxes, contained the following clause: “But no general execution shall issue herein against the maker or indorser of said note, but the mortgagee, or his assigns, shall be entitled to immediate possession of the premises, and shall take the same in full satisfaction of his debt.” Held, To exempt the makers and indorsers of the note from personal liability thereon, and to restrict the remedy of the holder of the mortgage security.</p>

<p>1. Appearance: Waiver of Notice. A defendant by a general appearance in an action thereby waives the issuance and service of summons therein.</p> <p>2. Review: Harmless Error. A decree will not be reversed by this court on account of error unless prejudicial to the complaining party.</p> <p>3. Transcript for Review. The record of the trial court, for the purpose of an appellate proceeding, when certified as required by law, imports absolute verity. (Worley v. Shong, 35 Neb., 311.)</p> <p>4. -: Corrections. In such case, if the record is incorrect or incomplete, the remedy is by appropriate proceeding' to secure a correction- thereof in the lower court. {Omaha Loan & Trust Go. v. Hogeboom, 47 Neb., 9.)</p>

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

Heard below before Holmes, J. A proposition submitted to the voters of a municipality at a general election must receive a majority of the votes cast at such election in its favor, in order to be carried. As the bond proposition failed to receive a majority of the votes cast at the election, it did not carry and hence all subsequent acts of the council relative thereto are void.

<p>1. Review: Sufficiency of Evidence. A case will not be reversed on the ground of the insufficiency of the evidence to sustain the verdict where there is not such a lack of evidence in its support as to lead to the conclusion that it is manifestly wrong.</p> <p>2. Action for Commission on Sale of Hand: Verdict fob Defendant. Evidence in this case held sufficient to sustain tho verdict rendered.</p> <p>3. Real Estate Agents: Commission. A real estate broker who is employed to sell or dispose of property has no claim for a commission until he has furnished a purchaser for the property, willing and able to buy it upon such terms and at the price prescribed by the vendor.</p> <p>4. Instructions: Request. If further and more specific instructions are desired on a point covered by the charge given, they must be prepared and presented on behalf of the party in whose interest it is contended they were necessary.</p> <p>5. -: Review. Certain instructions attacked as erroneous held applicable to the evidence, and, when read and construed in connection with other branches of the charge, not to be erroneous or prejudicial to the rights of the complaining party.</p>

<p>Bill of Exceptions: Authentication. A bill of exceptions must be authenticated by the clerk of the district court to entitle its contents to consideration in an appeal to this court.</p>

<p>Error from the district court of York county. Tried below before Bates, J.</p> <p>References: Mattis v. Robinson, 1 Neb., 3; 1 Washburn, Real Property, 361; 2 Herman, Estoppel & Res Judicata, sec. 868; McAuslanil v. Pundt, 1 Neb., 249; Parker v. Narigón, 12 Neb., 419; Denniss v. Twitchell, 10 Met. [Mass.], 180; Boyd v. State, 19 Neb., 128; Rector v. Gibbon, 111 U. S., 276.</p> <p>References: Anderson v. Smith, 63 Ill., 129; Mattis v. Robinson, 1 Neb., 3; Garter v. Marshall, 72 Ill., 609; Berridge v. Glassey, 7 Atl. Rep. [Pa.], 749.</p>

<p>1. Railroad Companies: Right op Way: Fences. Section 18, article 2, chapter 2, Compiled Statutes, in which a lawful fence is defined, has no reference to the fencing of the line or right of way of a railway. The latter subject is covered or governed by the provisions of section 1, article 1, chapter 72, of the Compiled Statutes.</p> <p>-: -: Expense op Fences: Liability op Company. A party who has given to a railway company the notice to build a fence between its right of way and his adjoining land prescribed in the proviso to section 1, article 1, chapter 72, Compiled Statutes, must, to be entitled to recover in an action for the reasonable expense of the erection of the fence after failure of the company so to do, show that the fence built by him along the right of way complies with the requirements of said section.</p>

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

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

<p>1. Mortgages: Acknowledgment: Witnesses. A mortgage upon real estate, other than the homestead, executed and delivered by the mortgagors is valid between the parties and those having knowledge of its existence, although not lawfully acknowledged or witnessed.</p> <p>2. Married Women: Mortgages. A married woman may, by a mortgage duly executed and delivered, bind her separate property for the payment of a loan of money made to her husband, to the extent of the property covered by such mortgage.</p> <p>3. -:--: Consideration. The loan to the husband is a sufficient consideration for the execution of the mortgage.</p>

<p>1. Mortgages: Description: Mistake: Reformation. A mutual mistake in the description of property mortgaged is sufficient to justify the reformation of the instrument by a court of equity, not only as against the mortgagors, but also as against purchasers under them chargeable with notice of such mistake.</p> <p>2. Bona Fide Purchasers. A tona fide purchaser of land is one who purchases for a valuable consideration, paid or parted with, without notice of any suspicious circumstances to put him upon inquiry.</p> <p>3. Mortgages: Erroneous Description. A mortgage of real estate will not be invalidated by reason of an error in the description of the property in case the remainder of the description, after rejecting the erroneous portion, is sufficiently definite to enable the land to be located. (Hutermann v. Evans, 46 Neb., 784.)</p> <p>4. --: Reformation: Evidence. Evidence examined, and held sufficient to justify the reformation of a mortgage on the ground of a mutual mistake in describing the property intended to be incumbered.</p>

Error, from the district court of Douglas county. Tried below before Scott, J. The court will not enforce an illegal contract, either by specific performance or by allowing damages for its breach.

<p>Review: Defective Record. Questions of fact cannot be considered on appeal from a confirmation of a judicial sale where there is presented no proper evidence that the alleged facts ever existed.</p>

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

Error from the district court of Stanton county. Tried below before Norris, J. The facts are stated in the opinion. The notice did not conform to the statutory requirement and amounted to no notice at all. The order of sale was therefore void.

' Error from the district court of Kearney county. Tried below before Beall, J. The opinion contains a statement of the case: The requirement of the statute in reference to signals at public crossings imposes an obligation upon the company toward people who are crossing or are about to cross the railroad track on the public highway, and no one else can claim the enforcement of these signals.

<p>Assignments of Error: Evidence of Damage. Under an assignment of error that the damages awarded by the jury are excessive, this court will not review the action of the trial court in admitting in evidence items of damage.</p>

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

<p>1. Insolvency: Preferring 'Creditors. A creditor may take such lawful steps as he deems best to secure the payment of a debt owing to him; and if the creditor’s only motive be the honest one of securing his debt, he will not be guilty of fraud because the effect of securing or paying his debt is to leave some other creditor’s debt partly or wholly unpaid.</p> <p>2. -: -: Relatives: Confession of Judgment: Creditors’ Bill. For the purpose of enabling him to buy a drug store and engage in business, a mother loaned her son, who had no property, $1,500. For this loan he gave her his note due in one year. He purchased the store for $2,000, paid thereon the cash borrowed of his mother, and gave his note for $500 for the balance. While he was in business he represented to wholesale dealers that his only indebtedness was the $500 owing on the purchase of the store, and concealed the fact of his indebtedness to his mother. The wholesale dealers sold the son goods and extended him credit, ignorant of the fact that he was indebted to his mother and relying upon his statement that his total indebtedness was the $500. After the mother’s note matured she ascertained that her son was financially embarrassed; induced him to confess a judgment in her favor for the amount due her on her note; and caused the drug store to be seized and sold on execution. Thereupon the wholesale dealers sought, by a suit in equity, to have their judgments against the son paid out of the proceeds of such sale before the payment of the mother’s judgment. Held, (1) Whether the money furnished to the son by the mother was a loan, a gift, or an advancement, whether or not the mother was actuated by a sinister motive in furnishing the money to her son at the time and under the circumstances that she did, in doing nothing to notify the public of such fact, in inducing her son to prefer her to his other creditors at a time when he was financially embarrassed and in resorting to the confession of judgment for that purpose, were, one and all, questions of fact; (2) that the evidence would not support any other finding than the one made by the district court, that the money furnished by the mother was a loan, and that her entire conduct in the premises was inspired by an honest purpose and that in nothing that she did was she influenced by a motive to defraud any one.</p> <p>3.--: --: -: Estoppel: Proceeds oe Execution. Held, That the mother was not estopped from claiming the proceeds of the execution sale as against her son’s other creditors because he had no property when she made him the loan; nor because to her knowledge the son borrowed the money to purchase the drug store; nor because to her knowledge the son embarked and continued in business, his only capital being the money she had loaned him; nor because she did not give any notice of the fact that the capital on which her son was doing business was loaned to him by her, and unpaid; nor because she did not take and file a chattel mortgage on the drug store to secure the loan when it was made; nor because the son concealed from the wholesale dealers the fact that he was indebted to his mother and thereby induced them to extend him credit; nor because the effect of the son’s preferring her debt was to leave the debts of his other creditors partly or wholly unpaid; nor because she resorted to a confession of judgment to secure such preference and expedite its payment.</p> <p>4. : Burden oe Proof. An insolvent son may prefer his mother to his other creditors by securing or paying her debt; but when such preference is called in question by the other creditors the law places the burden on the mother of showing by a preponderance of the evidence that such preference was accepted by her in good faith for her protection, and not for the purpose of defrauding any one.</p>

<p>Review: Unauthenticated Bill of Exceptions: Affirmance. Where, in a ease brought to this court on appeal, the bill of exceptions is uncertified by the clerk, and the pleadings support the decree rendered, it will be affirmed.</p>

<p>1. Railroad Companies: Negligence in Constructing Ditches: Pleading. A plaintiff alleged in hit petition that the defendant, a railroad company, carelessly and negligently constructed its ditches along its track through the lands of plaintiff, in such a manner as to cause the surface waters to collect in said ditches and he precipitated on plaintiff’s land, whereby certain of his crops were destroyed, certain of his trees growing on said land were destroyed, and his land was depreciated in value by the deposit thereon of clay and sand. Held, (1) That because of the general allegation of the railroad company’s negligence in constructing its ditches, the petition was open to a motion to make more definite and certain; (2) but that the general allegation of negligence was good as against a demurrer, and, therefore, the petition stated a cause of action.</p> <p>2. Eminent Domain: Conveyance to Railroad Company: ' Release of Damages: Construction of Ditches: Negligence: Measure of Damages. A land owner conveyed to a railroad company a right of way across his land. The conveyance contained the fol-. lowing release: “For the consideration aforesaid do hereby release and discharge the said party of the second part, its successors and assigns, from all costs and damages which the said party of the first part has now sustained, or shall at any time hereafter sustain, in any way by reason of the construction, building, or use of the said railroad.” The railroad company after-wards built its road on the right of way purchased, and in so doing constructed thereon certain ditches for the purpose of draining its road-bed: Subsequently the land owner conveyed his land to the defendant in error and he sued the railroad company for damages, alleging that said ditches were negligently constructed, and by reason thereof they conducted the surface waters collected therein on his land, destroyed certain of his crops, certain of his trees, and injured his land by depositing sand and clay thereon. The railroad company pleaded the release in the right of way deed in bar of the action. Held, (1) That if (he release would estop the original owner had he retained the land and brought this action, it would likewise estop the defendant in error; (2) that the true construction of the release is that by it the land owner acknowledged satisfaction for the value of all the land appropriated by the railroad company for its right of way, and released and discharged it from all damages which the remainder of his land had sustained, or would sustain, by reason of the non-negligent construction, maintenance, and operation of its road across the lands for all time; (3) that the release should be given the same effect as if it were a judgment rendered in a condemnation proceeding instituted by the railroad company for right of way over the land; (4) that in such a judgment, and therefore in the release, were not included damages for injuries that might afterwards arise as the results of a negligent construction, maintenance, or operation of the road; (5) that it was not within the contemplation of the parties to the right of way deed, at the time it was executed, that the railroad company would negligently construct, maintain, or operate its road; (6) that had the right of way been obtained by condemnation the land owner in that proceeding could not have been awarded damages upon the theory that he might in the future sustain injury by reason of the railroad company’s negligently constructing, maintaining, or operating its road; (7) that the defendant in error’s cause of action arose when the injury sued for occurred, and not when the ditches were completed; (8) that whether the ditches were properly and skillfully constructed for railroad purposes was not the material issue in the case; (9) and if so constructed, that of itself did not afford the railroad company a complete defense to the action, as the material issue in the case was whether the railroad company had so constructed its ditches as to unnecessarily and negligently injure the defendant in error; (10) that the measure of the defendant in error’s damages was the value of his crops destroyed, the value of his trees destroyed, and the difference in the value of his land immediately before and after the depositing of the sand and clay thereon.</p> <p>3. Railroad Companies: Drainage: Negligence: Damages: Instructions.' In addition to a general denial that the defendant in error had sustained any damages and that it had been guilty of any negligence in constructing its ditches the railroad company interposed the defense that the damages claimed resulted from a rain storm so unprecedented as to amount to the act of God. The district court instructed the jury that if the railroad company had failed to establish by a preponderance of evidence the defense interposed they should find for the defendant in error. Held, That the giving of the instruction was reversible error.</p>

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

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

Error from the district court of Cuming county. Tried below before Norris, J. The facts and issues are stated by the commissioner. It was error to exclude proof not only of acts and declarations resulting in plaintiff’s damage, but of facts tending to show the unlawful combination itself, as against any and all defendants not shown to be present and directly connected with the particular declaration or fact. (Hudd v. Burrows, 91 IT.

<p>1. Banks and Banking: Insolvency: Authority or Receiver: Parties. In a proceeding under chapter 8, Compiled Statutes, to wind up an insolvent hanking corporation, the corporation, even after consenting to the appointment of a receiver, remains an interested party and may he heard to resist an application for an order conferring authority upon the receiver not within the original order appointing him.</p> <p>2. Order on Receiver to Sue Stockholders: Review. An order was made ex parte directing a receiver to sue stockholders for then-unpaid suhsci-iptions. The defendant corporation moved to discharge the order. The motion was overruled and the corporation excepted. Held, That it might appeal from this order.</p> <p>3. Banking Corporations: Insolvency: Liability oe Stockholders: Enforcement oe Claims. The constitution provides: "In all cases of claims against corporations and joint stock associations, the exact amount justly due shall he first ascertained, and after the corporate property shall have been exhausted, the original subscribers thereof shall be individually liable t<> the extent of their unpaid subscriptions.” (Constitution, art. 11, sec. 4.) The banking act (Compiled Statutes, ch. 8, sec. 35) provides: “Whenever any receiver or any incorporated bank shall file a report with the court or judge thereof, setting forth the fact that in the opinion of such receiver, the assets of such bank are not sufficient to pay the liabilities of such bank within a reasonable time, the court or judge may order such receiver to proceed at once to collect from the several stockholders of such bank, who are liable therefor, any or'all such liabilities as sh'all be necessary for the payment of all the liabilities of snch bank.” Held, (1) That this statute refers to liabilities of stockholders upon their stock; (2) that the constitution makes the liability of subscribers for unpaid subscriptions for the purpose of paying debts of the corporation a secondary liability, to be enforced only after the amount of the debts has been judicially ascertained and other corporate property has been exhausted; (3) that a proceeding by the receiver of an insolvent bank to collect unpaid subscriptions to its capital stock is on behalf of creditors of the corporation and is a “case of claims” against the corporation within the meaning of the constitution; (4) that the statute quoted, in so far as it attempts to authorize actions to recover unpaid stock subscriptions before the corporate debts have been judicially ascertained and the corporate property exhausted, is in conflict with the constitution and void.</p>

<p>1. Pleading: Demurrer. An objection in the nature of a general demurrer will not lie to a pleading sufficient in substance but wanting in form or completeness.</p> <p>2. _; -. It is not a sufficient objection to a pleading when assailed by a general demurrer tbat it lacks definiteness of expression, or tbat tbe facts are therein stated in an argumentative form; but it will be held to charge what can by reasonable' and fair intendment be implied from tbe statements thereof.</p> <p>S. Mortgages: Payment: Pleading. Answer examined, and JielA to charge a satisfaction of the mortgage debt, which, not being put in. issue by the reply, must be taken as true.</p>

<p>Mortgages: Assignment: Fraudulent Release: Mortgagee’s Liability. The fraudulent release of a mortgage by the mortgagee after the indorsement without recourse of the bond and coupons, thereby secured, in favor of a third party having notice of the rights of the holder, does not of itself render the former liable in an action ex contractu for the amount of such debt.</p>

<p>X Parties: Non-Joinder. It is in case of joint obligations only that all persons liable thereon must be joined as parties defendant. An action may be prosecuted to judgment against any one or more of several persons jointly and severally bound without joining others liable for the same indebtedness.</p> <p>2. Abatement: Pending Suit: Evidence.. A plea of another suit pending is not sustained by proof of an order dismissing, without prejudice, a former suit on the same cause of action, and the filing by the plaintiff of a motion for a new trial upon which, so far as the record discloses, no action has been taken by the trial court.</p> <p>S. Courts: Laws and Procedure in Other States. The laws of sister states will, as a rule, in the absence of proof, be presumed to be the same as our own. There are, however, to that rule recognized exceptions, among which is that courts of general jurisdiction of other states will, unless there is proof to the contrary, be presumed to possess the authority they assume to exercise, and that the methods of procedure pursued by them, although differing from the established practice of this state, are authorized by the laws of the state in which they act.</p> <p>A Judgments: Joint and Several Obligations:' Appearance. Where to an action upon a joint and several obligation all parties liable thereon are made defendants, the fact that the judgment therein rendered is void as to one of such defendants, the voluntary appearance in his name being unauthorized, does not render said judgment void as to all.</p> <p>5. Judgments: Lien Upon Particular Property: Release oe Lien. A judgment defendant cannot, as a matter of right, unaffected by equitable considerations, insist upon the preservation of the judgment lien upon particular property of his co-defendants, nor will the release by the plaintiff of specific property of one of several judgment defendants from the lien of the judgment, of itself, operate to discharge the other defendants from liability therefor.</p>

<p>Res Judicata: Action on One of a Series oe Notes. Where to an action upon the first of a series of notes given for the same consideration the defendant alleges fraud and breach of warranty for the purpose of avoiding the contract in question, a verdict and judgment for the plaintiff may he pleaded as a bar to the same defense when interposed to an action upon a second note of the same series.</p>

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

<p>1. Water-Courses: Size of Stream. To constitute a water-course the size of the stream is not material. It must, however, be a stream in fact, as distinguished from mere surface drainage occasioned by freshets or other extraordinary causes, but the flow of water need not be continuous. Pyle v. Richards, 17 Neb., 180, approved and followed.</p> <p>2. Surface Water: Rights oh Land Owner. The doctrine of the common law in regard to surface waters is as a general rule in force and controls in this state. Surface waters may he controlled by the owner of the land on which they fall or originate or over which they flow. He may appropriate to his own use all that falls or comes on his land and refuse to receive any that falls or originates or flows on or over adjoining property.</p> <p>3. -: -. The right under the general rule to control surface waters must be so exercised by any person as not to unnecessarily or negligently cause injury to the rights and property of others.</p> <p>4. -:-: Embankments. Surface waters may have such an accustomed flow as to have formed at a certain place a channel or course, cut in the soil by the action of the water, with well-defined banks, and having many of the distinctive attributes of a watercourse; and though there are no exceptions to the general rule except from necessity, this may constitute an exception, and if the flow is stopped by 'the erection of an embankment across and in the channel, some provision may be necessary for the allowance of the regular flow of the surface waters.</p> <p>5. ———: -:-: Negligence. Whether such embankment has been negligently constructed with reference to the obstruction of the flow of the surface waters, and whether such negligence, if any, is the proximate cause of an alleged injury, are generally questions to be submitted to the jury.</p> <p>'6.--: Obstruction': Negligence. Held, That a finding that the damages in this case were not the result of negligence on the part of defendant was sustained by the evidence.</p> <p>7. Instructions: Assignments oh Error. If instructions are grouped in an assignment of error the determination that the action of the trial court, the subject of complaint, was proper as to one of such instructions suffices to dispose of the entire assignment.</p> <p>8. Special Findings: Failure to Request: Review. Where a jury is directed to find upon particular questions of fact, if any further than those submitted are desired by a party to the action, a request must be made for the submission of the further questions. If no request is made, error cannot be predicated upon the failure of the court to include such questions in the list of those directed to be answered.</p> <p>5. -: Immaterial Answers: General Verdict: Judgment. Where questions for special findings are submitted to a jury the answers to which would be immaterial to the issues as presented by the pleadings and evidence, and in view of the other findings of the jury, and the jury fails to answer one or more of such questions, it is not prejudicial error for the court to render a judgment over the objection of a party, on the general verdict returned.</p> <p>10. Verdicts. The general and special verdicts held not inconsistent.</p>

Heard below before Strode, J. The opinion contains a statement of the'case. On plaintiff’s own evidence the representations were not in the nature of warranty, but at most a mere expression of opinion, which the evidence shows beyond doubt, and the court affirmatively finds, were stated in good faith. Upon the proofs and findings, in any event, a decree should have been entered in favor of this appellant.

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

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

<p>1. Chattel Mortgages: Title. A chattel mortgage creates a lien on the property described therein but does not pass the legal title thereto.</p> <p>2. Petition in Error: Amendment. A party will be allowed to amend his petition in error to cover a point which, so far as the record discloses, was presented in- the trial court.</p> <p>3. Replevin: Pleading: Chattel Mortgages: Evidence. The introduction in evidence of a chattel mortgage, in which is described property the subject of an allegation of general ownership and right of possession in the plaintiff in an affidavit and petition in a replevin action, is not proof of such allegation.</p>

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

<p>1. Principal and Agent: Set-Ode. A collecting agent cannot extinguish a debt due his principal, by setting off against it his own debt, unless authorized to do so by his principal. (MeCormiclc v. Keith, 8 Neb., 142.)</p> <p>2. Novation. There can be no novation of a debt in the absence of an unqualified discharge of the original debtor by the creditor.</p>

<p>Municipal Corporations: Ponds: Death of Child: Liability of City. The former decision in this case (49 Neb,, 244, 68 N. W. Rep., 528) adhered to.</p>

<p>1. Review: Supersedeas. While a supersedeas bond is not essential to obtain a review of a decree in an equity cause, such bond is indispensable to a stay of the enforcement of such decree pending the review.</p> <p>2. Res Judicata. A judgment or decree in full force is binding upon the parties thereto, and their privies, as to the issues adjudicated.</p>

<p>Fraudulent Conveyances: Resale: Rights of Creditors. One who has taken the title of an insolvent partnership firm to real property for the purpose of disposing of such real property and paying to a creditor of said insolvent firm a part of the proceeds of the sale and to the firm itself the balance of such proceeds, may properly be held, in an equitable proceeding instituted against said firm and said trustee by one of its creditors, bound to pay such, balance to such creditor.</p>

Error from the district court of Lancaster county. Tried below before Strode, J. The opinion contains a statement of the case. Richards did not have authority to bind the company. (1 May, Insurance [3d ed.], secs. 120,138; Insurcmce Co. v. Wilkinson, 13 Wall. [U. S.], 222; Fames v. Home Ins. Co., 91 U. S., 621; Morse v. St. Paul Fire & Marine Ins. Co., 21 Minn., 107; Armstrong v. State Ins. Co., 61 Ia., 212; Insurance Co. v. Johnson, 23 Pa.

<p>Rill of Exceptions: Review: Transcript. In the absence of a bill of exceptions, issues of fact cannot be considered in this court on appeal, even though the transcript of the pleadings and proceedings recites that the cause was originally determined on an agreed statement of facts copied in such transcript. Following State Ins. Co. of Des Moines v. Buclcstaff Bros. Mfg. Co., 47 Neb., 1.</p>

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

Appeal, from the district court of Lancaster county. Heard below before Strode, J. Cases cited by counsel are referred to in tbe opinion.

<p>1. Costs: Action Against City: Damages. Mills sued the city in the district court claiming $5,000 damages which he alleged he had sustained hy falling into an excavation in one of its streets negligently left, unguarded. He recovered a verdict for $200. Held, (1) That, assuming the excavation was a nuisance within the meaning of section 621 of the Code of Civil Procedure, a justice of the peace had jurisdiction to render judgment for the amount of the verdict and therefore Mills was not entitled to recover costs; (2) that the amount claimed hy Mills in his petition deprived a justice of the peace of jurisdiction to try the case hut the amount , recovered determined his right to recover costs.</p> <p>2. -. The right of a litigant to recover costs is a statutory, not a common-law, right.</p>

<p>Motion for rehearing of case reported in 49 Neb., 842.</p>

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

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

<p>1. Arbitration and Award: Mistake: Correction. Whether an award made in pursuance of title 28, Code of Civil Procedure, may be set aside or modified, on motion, because of a mistake in computation or allowance of interest by the arbitrators, — such mistake not appearing upon the face of the award, — not decided.</p> <p>2.--: -: -. If such an award may be set aside or modified on motion for such reason it can only be done when it appears that such a mistake was that of all the arbitrators whosei concurrence was necessary to the making of the award.</p> <p>3. --: Duty of Arbitrators: Conclusions of Pact and of Law. It is the duty of arbitrators chosen and acting in pursuance of the provisions of title 28, Code of Civil Procedure, to make and state separately the conclusions of fact and conclusions of law reached by them, unless the parties to such arbitration have by their agreement of submission waived such requirement.</p> <p>4. -:--: -: Waiver. An award made by such arbitrators without a statement of any conclusions of fact or conclusions of law found by them, such requirements not having been waived, is erroneous and a judgment confirming such award may be reversed in a direct proceeding instituted for that purpose.</p> <p>5.--•: -: -: Confirmation. The failure of such arbitrators to make and state the conclusions of fact and law found by them is an irregularity merely, and one that does not render their award void nor oust the district court of jurisdiction to confirm it.</p> <p>6. --: Waiver of Irregularities. It is competent for parties to such an arbitration to waive any irregularity in the proceeding which does not go to the jurisdiction of the arbitrators to act, or the jurisdiction of the district court to confirm the award made.</p> <p>7. Submission of Controversy: Acknowledgment. Parties who submit their differences to arbitration in pursuance of the provisions of title 28 of the Code of Civil Procedure, must acknowledge their agreement of submission before a justice of the peace, and failure to do so will deprive the district court of jurisdiction to confirm the award made or render judgment thereon on motion of the successful party.</p> <p>8.---: -: Confirmation. The failure to acknowledge before a justice of the peace the agreement of submission is not an irregularity that the parties to the arbitration may waive; and their ratification of an award made under such defective submission will not invest the district court with jurisdiction to confirm such, award.</p> <p>9. Jurisdiction: Jurisdiction of the subject-matter of an action cannot be conferred upon a court even by consent.</p> <p>10. Arbitration. The method provided by title 28 of the Code of Civil Procedure for settling differences existing between parties by arbitration is not exclusive. That right existed at common law and has not been taken away by the statute.</p> <p>11. -: Award: Estoppel. Held, In the case at bar, that the plaintiff in error had estopped himself from assailing the award made, either because of the failure of the arbitrators to state the conclusions of fact and conclusions of law found by them, or because of a mistake in computation and allowance of interest alleged to have been made by the arbitrators.</p>

<p>1. Personal Injuries: Medical Treatment: Expense: Evidence. In an action for personal injuries it is proper to admit evidence of the actual expense incurred by plaintiff in procuring medical treatment, the nne being that he may recover the reasonable value of such services, not to exceed the actual expense incurred.</p> <p>2. -: -: -: --. In order to recover in such an action for expenses of medical treatment it is not necessary to prove by the record that the physician rendering the services was licensed to practice under the statute. Proof that he" practiced as a physician raises the presumption in actions between third parties that he was licensed to do so.</p> <p>3. Assault and Battery: Damages: Evidence of Disposition. In an action for assault and battery, self-defense being pleaded as a defense to the action, proof that plaintiff was of a quarrelsome disposition and ungovernable temper must be made by proof of general reputation and not by opinions of witnesses based on their individual observation.</p> <p>4. Trial: Misconduct of Attorney: Review. Generally a judgment will not be reversed because of improper remarks by counsel in argument when, on objection made the court interposes, the jury is directed to disregard the statement, and the improper remarks are not repeated.</p> <p>5.--: -: Admonition. In such case an admonition addressed by counsel making the remark to the jury is equivalent to one addressed by the court.</p> <p>6. -: -: Exceptions: Review. In order to preserve for review error in permitting improper remarks by counsel, objection must be made at the time, a ruling obtained and exception taken.</p>

Original application for mandamus to require the state printing board to award to tbe relator tbe contract to print and bind tbe reports of state officers, and other reports.

<p>1. Vendor and Vendee: Breach of Contract: Damages. When two or more persons have contracted to convey land to a third person, the vendors cannot, by contract or conveyance among themselves, release any of them from the obligation to respond to the vendee for damages arising from a breach of the contract.</p> <p>2. --: Failure to Make Title: Remedy of Vendee. Where a vendor of land cannot make title, the vendee may at his election recover payments of purchase money with interest, or damages for the loss of his bargain.</p> <p>3. -- — :---: Specific Performance. Where time is not of the essence of the contract, a vendor who is unable to make title at the time he should convey, may have specific performance by tendering good title at any time before decree, provided he has acted in good faith and specific performance can be enforced without injustice to the vendee.</p> <p>4. -:--: -: Rents and Costs. In such case an awarding of rents to the vendee together with costs, in the absence of special circumstances adjusts the equities.</p> <p>5. Record for Review: Date of Findings. The record as to the time a finding was made prevails as against an objection based on the hypothesis that the finding was earlier made, in the absence of some showing of record in support of the objection.</p>

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

Error from the district court of Cass county. Tried below before Chapman, J. The opinion contains a statement of the case. The Equitable Aid Union is a mutual insurance company, and the rules applicable to old-line companies do not apply.

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

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

<p>1. Agency: Collections: Payment. An agent employed to make collection of commercial paper is, as the result of that relation, authorized to receive in payment thereof such coin or currency only as is by law declared to be a legal tender, or which is by common consent treated as money, and, in commercial transactions, passes as such at par.</p> <p>2.-:-: -. The defendant, desiring to pay and satisfy a note and mortgage for $1,000 then about maturing, executed in favor of a local investment company a note and mortgage for $1,500, and received from T., the manager of said company, the : sum of $465, the latter agreeing to pay off the first mentioned note and mortgage, then held by the plaintiff in the state of Massachusetts. He also, without the knowledge or consent of the plaintiff, charged the local company upon its books, with the amount of said note, to-wit, $1,035, and entered a corresponding credit in favor of a Massachusetts corporation authorized to receive payment thereof. No money passed by the transaction, except as above stated, and the local company subsequently passed into the hands of a receiver, after having negotiated the $1,500 note and without having paid or accounted for the balance of the proceeds thereof. Held not to sustain the plea of payment.</p>

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