Volume 51 — Nebraska Reports

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

Error from the district court, of Webster county. Tried below before Beall, J. The facts are stated in the opinion. The sending of the worthless draft and the return of the receipt did not constitute a payment of the premium.

<p>1. Guaranty: Instructions. The liability of a guarantor cannot be extended beyond the exact terms of his contract, and an instruction confining the deliberations of the jury thereto, in an action against a guarantor, is not erroneous.</p> <p>2. --: Principal and Agent: Sales. The contract of agency herein held to apply to the indorsement and guaranty of the agent only upon such notes as were received by him in sales of the goods, wares, and merchandise of his principal.</p> <p>3. Trial: Verdict. Where the evidence shows liabilities in different amounts upon separate defendants, a verdict specifically assessing the amount due plaintiff from each defendant is not ground for reversal of a judgment rendered in accordance therewith.</p> <p>4. Contracts: Cost of Wrongful Attachment. The contract herein held not to create a liability to plaintiff from defendant for expenses and fees expended in an action of replevin by plaintiff to recover its property wrongfully taken from defendant under a writ of attachment upon a claim against him individually.</p> <p>5. Instructions: Repetitions. It is not error to refuse to instruct the jury upon a point already covered by the instructions of the court.</p> <p>6. Guaranty: Sufficiency of Evidence. The evidence examined, and held to sustain the verdict rendered.</p>

<p>1. Resulting Trust: Evidence. To establish, a resulting trust the evidence must be full, clear, and satisfactory.</p> <p>2. ___--. Held, That the evidence in this case was insufficient to raise a resulting trust in favor of the plaintiff in the property drawn into controversy.</p> <p>3. Homestead: Conveyance. The question of the validity of the conveyance of a homestead by the husband to the wife, she not joining in the conveyance, held not raised in the pleadings or the evidence; hence not presented for adjudication.</p>

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

<p>1. Mortgages: Purchase Money: Homestead. A mortgage given by the wife, at the time of the purchase of real estate, to secure the unpaid purchase money is valid security, though not signed by the husband, notwithstanding the property was purchased for, and occupied as, a family homestead.</p> <p>2. --: Execution. A mortgage upon real estate other than the homestead, executed and delivered, is valid between the parties although not lawfully acknowledged or witnessed. (Holmes v. Hull, 50 Neb., 656.</p>

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

<p>1. Statutes: Construction. Statutes remedial in their nature should receive a liberal, and not a restrictive, construction.</p> <p>2. -: -. An imperative rule of construction is that effect, if possible, must be given to every clause and part of the statute.</p> <p>3. —-:--. A legislative enactment will be given a prospective operation unless a contrary intent is Clearly expressed.</p> <p>4. ■--: -: Collection oe Public Monet. Held, That the act of the legislature of 1879, entitled “An act to provide for the collection of public funds and money” (Compiled Statutes, ch. 8, secs. 40, 41), operates prospectively as well as retroactively.</p> <p>5.-: -: -. First Nat. Banlc of South Bend v. Gandy, 11 Neb., 433, disapproved.</p> <p>6. Payment: Accord and Satisfaction. A payment of a part only of a liquidated past-due debt, in full settlement, is not good as an accord and satisfaction.</p>

Error from tbe district court of Dodge county. Tried below before Marshall, J. Tbe opinion contains a statement of tbe case. Tbe only question for determination is as to tbe priority of mortgage liens.

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

<p>1. Conflicting Evidence: Review. Where the evidence is such as to justify impartial minds in reaching different conclusions, the finding of fact thereon by the trial court will, on appeal, be assumed to be correct.</p> <p>2. -:--. The evidence in this case examined, and hold to be within the rule above stated.</p>

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

Heard below before Ramsey, J. The facts are stated in the opinion. The city council acted without authority of law, and its action in attempting to remove the mayor is void.

Error from the district court of Adams county. Tried below before Beall, J; The opinion contains a statement of the case; The contract is valid under the laws of Illinois, where it was made, and is. enforceable in this state. (Hazel v. Chicago, M. é St. P. R. Co., 48 N. W. Rep. [la.], 826; Fair-child v. Philadelphia, W. & B. R. Co., 24 Atl. Rep. [Pa.], 79; Chicago & N. W. R. Co. v. Chapman, 30 111.

<p>Mortgages: Payment to One Without Authority to Receive It: Foreclosure. The evidence in this case examined, and held to entitle the plaintiff to a decree as prayed.</p>

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

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

<p>1. Mortgages: Subsequent Purchaser. A subsequent mortgagee of real estate is a subsequent purchaser thereof within the meaning of section 16, chapter 73, Compiled Statutes.</p> <p>2.--:---. One who takes a real estate mortgage to secure a pre-existing debt actually and justly owing to him, without notice, actual or constructive, of the existence of an outstanding unrecorded mortgage against such real estate, is a subsequent purchaser in good faith within the meaning of section 16, chapter 73, Compiled Statutes.</p>

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

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

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

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

<p>1. Parliamentary Law: Proceedings oe Boards. The rule is well settled that, where authority is conferred by law upon three or more persons to execute a public trust or agency, and in the execution thereof all are assembled to deliberate, or had notice and opportunity to be present, the act of a majority-is binding unless the statute expressly requires the concurrent action of all.</p> <p>2. State Depositories: Bonds: Approval. To constitute a bank a state depository of public funds it must give a bond for the safe keeping and payment of such deposits and the accretions thereof, conditioned as required by law, and approved by the governor, secretary of state, and attorney general, or any two of them, where all were present and conferred upon the subject.</p> <p>3. --: Excessive Deposit: Liability op Sureties. The depositing by a state treasurer of public funds in a state depository bank in excess of one-half of the amount of the penalty of the bond given by said bank will not have the effect to release either the principal or sureties from their obligation to repay the moneys deposited to the amount of fifty per centum of the bond and the accretions thereof.</p> <p>4. --: .Deposit by Teeasubeb. A deposit of public moneys by a state treasurer in a legally constituted depository for public funds, in compliance with the provisions of the depository law, is in substance and legal effect a loan of the moneys so deposited.</p> <p>5. -:-: Turning Over Funds. Public funds so deposited and remaining in a state depository at the termination of the office of a state treasurer, he is not required to withdraw therefrom and physically deliver the possession thereof to his successor in office.</p> <p>6. ---: Validity oe Statute. The state depository law is not amendatory of subdivision 8, section 2, article 4, chapter 83, Compiled Statutes, in such a sense as to render it inimical to section 11, article 3, of the constitution.</p>

Heard below before Walton, J. The opinion contains a statement of the case. The resolution requiring the construction of .the sidewalk in controversy not having been published, the action of the city in laying the walk and in levying the assessment therefor was illegal and void. (City of Dubuque v. Wooton, 28 la., 573; Starr v. Gity of Burlington, 45 la., 87; Roche v. Dubuque, 42 la., 250; Buckley v. City of Tacoma, 37 Pac.

Error from the district court of Saunders county. Tried below before Bates, J. The opinion contains a statement of the case. The wife having procured intoxicating liquors and furnished them to her husband, thus contributing to the injury of which she complained in her petition, should not be permitted to recover in this action.

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

<p>Eraion to the district court for Gage county. Tried below before Stull, J.</p>

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

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

<p>1. Landlord, and Tenant: Abandonment by Tenant: Remedy. A landlord is not, upon the abandonment of the demised premises by the tenant in violation of his contract, required to relet for the protection of the latter, but may at his election suffer the premises to remain vacant, and recover his rent for the remainder of the term by means of an action on the lease.</p> <p>2. --. Allen v. Saunders, 6 Neb., 436, distinguished.</p>

<p>1. Appeal and Error: Election oe Remedies. When a case, in its nature appealable, is brought into this court for review, the filing of a petition in error will be construed as an abandonment of an attempted appeal from the same judgment or decree.</p> <p>2. Review: Objections Not Raised Below. An objection on the ground that the finding and judgment complained of are unsupported by the evidence will not, on petition in error in this court, be considered unless presented to the district court by means of a motion for a new trial, and a ruling had thereon.</p>

Error from the district court of Saline county. Tried below before Hastings, J. The opinion contains a statement of the case. The petition nowhere alleges that the plaintiffs took passage on a train that was scheduled to stop at the station of Haigler, to which point they held tickets. Nor does it allege that the train on which they took passage would or should stop at said station under any rule or regulation of the railroad company. The petitions were therefore defective.

<p>1. Principal and Agent: Ostensible Authority. “Ostensible authority to act as agent may be conferred if the party to be charged as principal, affirmatively or intentionally, or by lack of ordinary care, causes or allows third persons to trust and act upon such apparent agency.” Thomson v. Shelton, 49 Neb., 644, approved and followed.</p> <p>2. --:--. “That the party to whom money due another is paid is not in possession of the instruments by which the indebtedness is evidenced is not conclusive of the question of the authority, or lack of it, in the party receiving the money to collect it, but is a circumstance or fact to be considered in the determination of such question.” Thomson v. Shelton, 49 Neb., 644, approved and followed.</p> <p>3. Review: Admission op Evidence: Harmless Error. That immaterial, illegal, or irrelevant evidence was admitted at the trial of a cause by a court without the intervention of a jury furnishes no sufficient reason for the reversal of the judgment.</p> <p>4. Mortgages: Authority oe Agent to Whom Payment Was Made: Finding eor Mortgagor Sustained. The evidence examined, and held to sustain the findings of the trial court.</p>

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

<p>Mortgages: Authority oe Agent to Whom Payment Was Made: Finding eor Mortgagor Sustained. (See Plicenix Ins. Go. v. Walter, 51 Neb., 182.)</p>

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

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

<p>1. Counties: Powers. Counties and county boards can exercise only sucb powers as are expressly conferred upon them by statute, and sucb. grant of powers must be strictly construed. (State v. Lmooln OowUy, 18 Neb., 283.)</p> <p>2.--:--: Precincts. In the year 1886 the statute governing cities of the second class having a specified number of inhabitants provided that “each city governed by this act shall be divided into not less than four nor more than six wards” (Compiled Statutes, 1885, ch. 14, art. 2, sec. 8), and further provided: “Precinct lines in that part of any county not under township organization, embraced within the corporate limits of a city of the second class, shall correspond with the ward lines in such city, and such precincts shall correspond in number with the wards of the city, and be co-extensive with the same.” (Compiled Statutes, 1885, ch. 14, art. 2, sec. 9.) Nebraska City was a city of the class referred to by these sections and had been divided into four wards. On October 4, 1886, the county commissioners of Otoe county, wherein said city was situate, the county not being under township organization, attempted to establish a precinct designated as Nebraska City precinct, and included therein the whole territory of Nebraska City and a number of sections of land. Held, That the commissioners had no power or jurisdiction to make such a precinct and their order in that regard was void and of none effect.</p> <p>3. --: -:--: Bonds: Injunction. On October 6, 1886, the county commissioners issued a call for an election in the so-called Nebraska City precinct, at which was to be submitted to vote of the electors thereof a proposition to issue bonds of the precinct in the sum of $40,000 to aid in the construction of a railroad. This call was issued under the provisions of section 14, chapter 45, Compiled Statutes, by which precincts were authorized to issue bonds for such purpose if the proposition so to do be approved by a’ specified majority of the votes of the electors at an election called and held pursuant to and in accordance with the provisions of the ' section. The proposition received the requisite majority and the commissioners issued, or caused the bonds to be issued. Held, ■ That there was no precinct in existence which could, by its vote, authorize the issuance of bonds in its name. The bonds were void, and an injunction, in an action by one or more of the taxpayers to be affected, for themselves and others, is a proper remedy and will issue to restrain the levy of taxes with which to pay principal or interest of the bonds.</p> <p>4. -. No questions were presented, considered, or adjudicated herein in regard to the rights or interests of purchasers of the bonds.</p>

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

<p>Death hy Wrongful Act: Evidence. Evidence examined, and hold not sufficient to sustain a verdict that the death of plaintiff’s intestate was caused by the negligence of defendant’s servants.</p>

<p>1. Judgments: Correction oe Journal Entry. Evidence examined, and held insufficient to sustain a motion filed under subdivision 3 of section 602 of the Code of Civil Procedure to correct the record entry of a judgment “for mistake, neglect, or omission of the clerk, or irregularity in obtaining a,judgment or order.”</p> <p>2. Review: Laches. A judgment cannot be reviewed which was rendered more than one year prior to the commencement of proceedings in error in this court.</p>

<p>Mortgages: Authority op Agent Receiving Payment. Evidence held not to show that one to whom a mortgage debt was paid was the agent of the owner and holder.</p>

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

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

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

<p>Unauthenticated Bill of Exceptions. A bill of exceptions must be authenticated by the clerk of the trial court or it will not be considered.</p>

<p>1. Building Contract: Assignment: Effect. An assignment of a building contract by tbe contractor was held not merely an assignment of the moneys thereafter to be earned, but an assignment of the whole contract with its obligations and burdens.</p> <p>2. Mandamus Against School District for Issuance of Warrant for Balance Due on Building Contract. Held, That a writ of mandamus was rightly refused.</p>

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

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

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

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

<p>Sale: Action for Purchase Price: Pleading and Proof. A verdict and judgment on a petition, by which it was sought to recover the unpaid purchase price of personal property, are not sustained by proof that while in fact such payment had actually been made, yet that by false representations the defendant had induced the plaintiff to pay the defendant an amount equal to the amount of such purchase price.</p>

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

<p>Counties: Divisions: Rights in Real Estate. In an action for the recovery of a proper proportion of the value of real property retained and used by a county from the territory of which the territory of another county has been segregated, it is no defense to show that said real property was originally conveyed by a deed with conditions, when thereafter the said property was dedicated as county property by a plat duly recorded by the grantor and as such was accepted by the county and at great expense improved by the erection thereon of county buildings.</p>

<p>1. Review: Conflicting Evidence. A verdict on consideration of fairly conflicting evidence will not, in this court, be disturbed as lacking support in the proofs.</p> <p>2. Immaterial Special Findings: Review. Where a question for a special finding, which, answered either way, must be immaterial to issues in view of the evidence, was submitted to a jury, and such question was not answered, there was no prejudicial error in rendering judgment on the general verdict without previously requiring a finding on the question indicated.</p>

<p>Review: Conflicting Evidence. A judgment on fairly conflicting evidence will be affirmed wben tbe sufficiency of sucb evidence is tbe only question presented by tbe record.</p>

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

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

<p>1. Statutes: Amendments: Constitutional Law: High School Districts. An act of the legislature which is clearly amendatory of an existing statute is unconstitutional when such amendatory act in no way mentions or describes that of which it is amendatory.</p> <p>2.--:--- — :--: -. When a part of an act, unconstitutional for the reason above indicated, forms the obvious inducement for the passage of the remainder of such act, the entire act must be declared unconstitutional.</p>

<p>1. Costs: Attorneys’ Pees: Insurance. In order that a plaintiff in a suit against an insurance company may recover an attorney’s fee as part of his costs it must appear that the judgment is based upon a policy or contract of insurance; that the policy must have been written upon real property and be a contract of indemnity against loss by fire, tornado, or lightning; and that the loss must have occurred without criminal fault on the part of the insured or his assigns.</p> <p>2. -: -: -. When such a judgment is brought to this court on error and affirmed, the district court, on receiving and entei mg the mandate of this court, has no authority to allow the insured an attorney’s fee for services rendered by his counsel in the case in this court.</p>

Error from tbe district court of Douglas county. Tried below before Blair, J. Tbe opinion contains a statement of tbe case. Tbe special rates were quoted through mistake of tbe carrier’s agent, and tbe contract based thereon provided for tbe violation of tbe interstate commerce law. Tbe judgment for overcharges was therefore erroneous.

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

<p>Appeal from the district court of Douglas county. Heai'd below before Ambrose, J.</p>

<p>1. Appeal and Error: Election op Remedies. If the judgment which a litigant seeks to have reviewed in this court is appealable he may have it reviewed on appeal or error at his election. He may make such election at any time before the final submission of the case in this court. He may dismiss his appeal and stand on his petition in error, or vice versa, but if he makes no such election this court will review the judgment of the district court on error only when there is filed with the transcript here a petition in error.</p> <p>2. Motion for Mew Trial. Though the grounds of a motion for a new trial are not stated in the exact language of section 314 of the Code of Civil Procedure, if they are in substance the same the statute is satisfied.</p> <p>3. --■: Assignments op Error: Review. Where the grounds of a motion for a new trial are in substance those prescribed by section 314 of the Code, and the assignments in the petition in error are based upon those grounds, this court is not without jurisdiction to review a case on error simply because the petition in error does not specifically allege that the court below erred in overr ruling the motion for a new trial.</p> <p>4. School Districts: Taxation: Railroad Bridges: Evidence: Injunction: Estoppel. The tax agent of a railroad company in the year 1895, and for several years prior thereto, listed for taxation with the officers of a school district a bridge which was a part of his principal’s railroad, erroneously believing that such bridge was within the limits of such school district. The railroad company paid the taxes assessed by the school district against the bridge for all the years prior to 1895. It then brought suit to enjoin the 1895 tax on the ground that said bridge was, as a matter of fact, not within the limits of such school district. Held, (1) That the action did not call into question the legality of the organization of the school district; (2) that if jurisdiction to levy the tax was a franchise or privilege within the meaning of section 8, subdivision 3, chapter 79, Compiled Statutes, and such franchise or privilege was called into question by the action, still the court was not required by said statute to conclusively presume anything further than the legal organization of the school district; (3) that the court was not required to conclusively presume that the bridge was within the limits of the school district because it had assumed the right to tax it for more than one year; (4) that the court was not bound to presume that the bridge was within or without the limits of the school district; (5) that the sitos of the bridge was a question of fact to be determined from the evidence; (6) that the railroad company was not estopped from maintaining the action because of its conduct in listing the property for taxation; (7) that a proper remedy of the railroad company was injunction, and not quo warranto.■</p> <p>5. District Courts: Void Taxes: Injunction. The district courts of this state are, by the constitution, invested with general equity jurisdiction, and this includes the authority to enjoin the eollection of a void tax; and this jurisdiction the legislature can neither take away nor impair.</p> <p>6. School Districts: Taxation. In the absence of express legislative authority the officers of a school district are without jurisdiction to levy a tax upon real estate not within the limits of their school district, and a tax so levied, no matter for what purpose, is absolutely void.</p> <p>7.-: -: Boundaries: Railroad Bridges. The evidence examined, and held to establish (1) that the eastern boundary of school district No. 2, in Cass county, coincides with the eastern boundary of section 20, in township 12 N., and range 14 E., of the sixth P. M.; (2) that the eastern-boundary of said section 20 is the high-water line of the west bank of the Missouri river; (3) that no part of the bridge in controversy is within the limits of said school district.</p>

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

<p>1. Sale by Husband to Wife: Consideration. Tbe signing by a wife of a mortgage upon tbe homestead of herself and husband, the legal title to which is in him, to raise money with which to pay his debt, is such a valuable consideration, if otherwise sufficient, as will support a sale of personal property of the husband to the wife.</p> <p>2.-: -. Evidence examined, and held to sustain the finding of the jury.</p>

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

<p>Transcript for Appeal: Time oe Filing: Contradiction oe Record. The record of a district court showed that a transcript for the purpose of perfecting an appeal from a justice of the peace was filed within the statutory time. On a motion to dismiss, the court considered the filing mark and a certificate of the clerk to the same effect and also an affidavit of the appellee’s attorney, containing a statement that he had searched the records after the time for filing the transcript and had not found it, and also hearsay evidence in the nature of statements which the deputy clerk had made to him with regard to the clerk’s acts. Held, That this affidavit was insufficient to contradict the record, and that the appeal should not have been dismissed.</p>

<p>1. Usury: Action Against National Bank eor Penalty: Renewals of Loans: Evidence. In an action against a national bank to recover tbe penalty for taking usury, it appeared that the transactions between the plaintiff and the bank consisted of a large number of loans evidenced by notes, many of which had been from time to time renewed. Held., 'That evidence of the whole course of transactions was material in order to trace the different debts and the interest reserved on each, although some transactions were not pleaded as usurious.</p> <p>2. -: -. While under the state law no. action can be maintained to recover back payments of usury, and all remedy is lost by payment of the debt, the national banking act provides otherwise, and an action will lie against a national bank to recover the penalty, notwithstanding the borrower has paid both principal and interest.</p> <p>3. -: Instructions: Evidence. Certain instructions examined, and held properly refused and evidence held sufficient to sustain the verdict.</p>

<p>Corporations: Proof of Corporate Existence. The plaintiff sued as a corporation. The defendants, in their answer, specifically denied the corporate existence of plaintiff. Held, That the answer in this respect stated a defense and cast upon the plaintiff the burden of proving its corporate existence.</p>

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

<p>Contribution Between Sureties: Pleading. A sued B and others, alleging that B and the other defendants had with C and others named executed as sureties a bond for the faithful performance of the duties of a county treasurer; that the treasurer had embezzled a certain sum of money which C and others, not parties to the suit, had paid to the county in discharge of their obligations; that thereafter the county had assigned its rights to A in trust for C and the other paying sureties. The petition prayed contribution from the defendants. It did not allege that the assignment by the county to the plaintiff was in pursuance of any agreement with the paying sureties by which A was constituted their trustee. Held, That it stated no cause of action in favor of A.</p>

<p>Contribution Between Sureties: Pleading.</p>

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

<p>1. Appearance: Disclaimer. A formal disclaimer, by one made a party defendant to a proceeding in rem, of any interest in the subject of the action is not a special appearance for the purpose of challenging the jurisdiction of the court over his person; but is, in substance, a defense requiring the judgment of the court, and amounts to a general appearance.</p> <p>2. Disclaimer: Costs. Section 618 of the Code, viz., “Where defendants disclaim having any title or interest in land or other property the subject-matter of the action, they shall recover costs, unless for special reasons the court decides otherwise,” is declaratory merely of the rule in equity, since the discretion reserved to the court implies a determination from an inspection of the pleadings of defendant’s right to be dismissed from the action.</p> <p>3. Practice: Notice of Cross-Bill: Action in Rem. The service of a formal summons is not essential, in order to give the district court jurisdiction over a defendant in an action in rem, for the purpose of a cross-petition filed by a co-defendant after answer day. (Patten v. Lane, 45 Neb., 333.)</p> <p>4. Equity: Jurisdiction. When a court of equity has acquired jurisdiction over a cause for any purpose, it may retain it for all purposes and proceed to a determination of all issues made by the pleadings.</p> <p>5. Summons: Service bv Publication. Service by publication, or in sucb manner as may be authorized by statute, is sufficient in proceedings substantially in rem, but where the purpose of the action is to determine the personal rights of the parties, and to enforce a mere personal obligation against the defendant, personal service within this state is essential to the jurisdiction of the court. (Anheuser-Busch Breioing Ass’n v. Peterson, 41 Neb., 897.)</p>

<p>Judgment for Plaintiff in Action for Services: Evidence: Review. Evidence examined, and held sufficient to sustain the judgment of the district court.</p>

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

<p>1. Review: Conflicting Evidence. Findings of a jury on conflicting evidence will not be disturbed if there is sufficient favorable evidence to sustain them.</p> <p>2. Instructions: Evidence. The refusal of an instruction whereby it is sought to direct the jury that certain evidence which has been introduced incidentally or collaterally is directly applicable to the issues in the cause, when in fact it is not pertinent or direct in its bearing on any issue, and its giving would probably mislead the jury, is not an error.</p> <p>3. Quantum Meruit: Measure of Damages. In a suit upon a quantum meruit for services performed the reasonable value of the services furnishes the measure of recovery.</p> <p>4. -:--: Evidence. Under a quantum meruit count for services rendered under a contract, the contract is admissible to prove the value of the services. The stated rates of compensation, if any, are competent evidence tending to show the reasonable value.</p> <p>5. -: -: -., In the case at bar, an action on a quantum meru/it, the only competent evidence of the reasonable value of services performed was the contract price. The plaintiff in the action offered other proof of the value of the services, which, on objection of defendant, was excluded. Eeld, That the contract price was the proper measure of damages.</p> <p>6. -: -:--. The evidence examined, and held sufficient to sustain the verdict.</p>

Error from the district court of Jefferson county. Tried below before Bush, J. The opinion contains a statement of the case. A foreign freight car tendered for shipment is personal property, and a railroad company is required to receive it and haul it the same as any other freight. (Peoria & P. ü.

<p>1. Quieting Title: Tax Deeds: Payment oe Taxes. In an action by a purchaser of property at tax sale, who had received a county treasurer’s deed for the property, to have his title to the property quieted, an answering defendant set up title in himself and asked • the cancellation of record of the tax deed and the removal of Lhe cloud created by it from his title. Held, That as a condition of granting to such defendant the relief prayed he must pay the taxes justly chargeable against the property which had been paid by the plaintiff.</p> <p>2. -: -: -: Description: Mistake. A party by a letter to a county treasurer desired him to make and forward a statement of taxes due against “Lots 5 and 6, of Hillside No. 1, corner of Burt and Thirtieth streets.” Held, That the portion of the above description, “Lots 5 and 6, Hillside No. 1,” was its more specific and governing part; and that the treasurer or his assistant relied thereon and did not examine to ascertain whether property of such description was at the corner of Burt and Thirtieth streets, but made the requested statement according to the description as to lots in Hillside No. 1, this furnishing him sufficient and complete information on which to proceed, and forwarded the statement; and the applicant for the statement paid the taxes shown thereon, thereby paying taxes on property which did not belong to him, and the taxes which he intended to pay became delinquent and his property was sold for their payment. In an action between the purchaser at the tax sale and the owner of the property which involved his being required to pay the taxes on the property sold, the burden and consequences of the mistaken payment must be borne by the owner of the property and could not be alleged as a mistake of the county treasurer.</p> <p>3. -:-:-:-. Held, That the same is true of a similar mistake which occurred when the owner of the property was present in the treasurer’s office, and by his suggestions or directions caused a mistake to be made in the description of property which he desired to redeem from sale made for delinquent taxes whereby he failed to redeem his own but paid for and received a certificate of redemption for other property.</p> <p>4. Tax Sales: Improvements by Purchaser. The value of an improvement made by a purchaser at tax sale held not properly presented in this action to constitute it a subject of recovery.</p>

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

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

<p>1. Railroad Companies: Failure to Pence Track: Injury to Stock. Under sections 1 and 2,' article T, chapter 72, Compiled Statutes, a railroad company is liable for injuries caused by a moving train to cattle, horses, sheep, or hogs upon its track at a place where it ought to have been, but was not, fenced, although there was no actual collision between the train and the animals injured. Fremont, B. & M. V. B. Co. v. Pounder, 36 Neb., 247, followed.</p> <p>2.-: -: -. Burlington & M. B. B. Co. v. Shoemaker, 18 Neb., 369, overruled.</p>

<p>1. Husband and Wife: Agency. A husband may act as the agent of his wife in the management of her separate trade and business.</p> <p>-: -. Evidence held insufficient to sustain the findings of the trial court. 2.</p>

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

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

<p>1. Judgment Nunc Pro Tunc. If a judgment in fact was rendered and not recorded, the court at any time afterward, in a proper proceeding and upon a proper showing, is invested with the power to render such judgment ivtmo pro twic.</p> <p>i. Conflicting Evidence: Review. A finding of fact will not he disturbed when in the trial court it was reached upon consideration of fairly conflicting evidence.</p>

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

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

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

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

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

<p>1. Rape: Evidence. In a prosecution for rape, certain evidence, set out in the opinion, held to be irrelevant to tbe issues and prejudicial to tbe accused.</p> <p>2. Trial: Cross-Examination: Conteadictions. When a witness is cross-examined on a matter collateral to tbe issue he cannot, as to bis answer, be contradicted by tbe party putting tbe question. (Johnston v. Spencer, 51 Neb., 198.)</p>

<p>1. Rulings on Evidence: Review. Errors in the admission and rejection of evidence cannot be reviewed unless the particular rulings complained of are pointed out in the petition in error.</p> <p>2. Assignment of Cause of Action. Evidence held sufficient to warrant a finding that there had been an absolute assignment of a cause of action to the plaintiff.</p> <p>3. Statutes: Amendments: Railroad Companies: Pences. Session Laws, 1877, page 60, purporting to amend section 2 of the act relating to the liability of railroad companies for live stock injured where no lawful fence has been constructed, is in conflict with the constitution and inoperative because it did not repeal the section amended. Oity of South Omaha v. Taxpayers’ League, 42 Neb., 671, followed.</p> <p>4. Railroad Companies: Injury to Stock: Evidence. Therefore, the notice provided for by the original section is incompetent evidence for the purpose of establishing the value of live stock killed or injured.</p> <p>5. Pleading: Deeault: Permission to Answer. Permitting a defendant in default to file an answer is a matter resting largely in the discretion of the trial court, and a judgment will not be reversed because the defendant was permitted to answer out of time unless the record affirmatively discloses an abuse of discretion.</p> <p>6. Railroad Companies: Injury to Stock: Damages. That part of the statute relating to the liability of railway companies for live stock injured which gives the owner of live stock double the value of his property, is void. AtcMson & N. R. Go. v. Baty, 6 Neb., 37, reaffirmed.</p>

<p>•1. Nonsuit: Directino Verdict. Under our Code a trial court has no authority to enter an involuntary nonsuit and judgment of dismissal because the plaintiff by his evidence fails to establish his cause of action. In such cg,se the proper practice is to instruct the jury to return a verdict for the defendant. But where the evidence entitles the defendant to have a verdict so directed, it is error without prejudice to the plaintiff to enter the nonsuit. (Zit-tie v. ScMesinger, 46 Neb., 844, followed.</p> <p>2. Master and Servant: Defective Appliances: Risks of Employment. If the machinery, tools, or appliances furnished a servant by his master are obviously defective and dangerous, and the servant, notwithstanding, continues in the service, he thereby assumes the risks of any injury which he may sustain by reason of such defective appliances. Missouri P. R. Go. v. Baxter, 42 Neb., 793, followed.</p> <p>3. -: -: -. While there are certain exceptions to this general rule they do not apply to a -ease where a brakeman is injured by a defective coupling on a car which he has habitually handled for a long period of time with knowledge of the defect and without protest on his part or promise to repair on the part of his master.</p> <p>4. Railroad Companies: Couplers. The act requiring railway companies to equip their cars with automatic couplers (Session Laws, 1891, ch. 19) permitted railway companies to use cars not so equipped until January 1, 1895, and prior to that it forbade only the originally putting in use in this; state of a new ear not so equipped, or of a car which had been in the shops for general repairs or for repairs necessitating a new drawbar, after the passage of the act.</p> <p>5.-: Death oe Brakeman: Negligence in Constructing Car: Question eor Jury. The evidence tended to show that plaintiff’s intestate, a brakeman, undertook to couple a freight car equipped with link and pin coupler to a coach equipped with a Miller hook; the coupling bars slipped by one another leaving a space of about twelve inches between the ends of the cars; that there was on the freight ear a bolt projecting several inches from the end of the car and beyond the end of the nut. Plaintiff’s intestate was killed by the collision. The only wounds due immediately to the collision were a bruise over the heart the size of a silver dollar, and a smaller bruise on the back opposite the first. The bolt was so situated ihat as he stood between the ears it would strike him about where the wound was found. Selcl, That the ease should have been submitted to the jury on the question of negligence in the construction of the car with reference to the bolt and as to this being the proximate cause of his death, the car not being one with which he was familiar, and it not being shown that such a construction was common among the cars he habitually handled.</p>

<p>1. Sheriffs’ Sales: Deputy Shertpes. When a decree of foreclosure directs that a sale shall be made by the sheriff, his deputy may act for him in appraising the property.</p> <p>2. -: Appraisement: Review. Evidence held to sustain the district court in refusing to set aside an appraisement on the ground that it was too low.</p>

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

<p>1. Trespass by Officer Executing Writ: Plaintiee’s Liability. One who delivers to an officer a valid writ without direction as to the manner of its service will not, except in case of subsequent ratification, he liable for torts committed by such officer while engaged in the execution thereof. (Murray v. Mace, 41 Neb., 60.)</p> <p>2. Replevin: Damages. The successful party to an action of replevin should recover therein all damage which he has actually sustained by reason of the unlawful detention of the property in controversy.</p> <p>3.--:-: Res Jtjdicata. A defendant who has in an action of replevin recovered judgment for the return of the property and his damage for the wrongful detention thereof cannot thereafter maintain an action against' the plaintiff for damage on account of depreciation in the value of such property while in possession of the latter.</p>

Heard below before Walton, J. The opinion contains a statement of the case. Johnson did not sustain a fiduciary relation to the bank in any sense contemplated in the doctrine of trusts. (Central Nat. Banlc v. Connecticut Mutual Ins. Co., 104 U. S., 70; Dillon v. Connecticut Mutual Ins.

Original application for mandamus to compel the auditor of publi c accounts to issue a warrant for the salary due the assistant clerk of the state banking board upon a voucher not verified by affidavit.

<p>1. Replevin: Affidavit. In an action of replevin commenced in the district court, where the affidavit filed contains no statement that the property is wrongfully detained by the defendant, if there is a duly verified petition on file in which there appears such statement, it is sufficient to give jurisdiction to issue the writ, and the writ, if issued, will not be void but voidable.</p> <p>2.-: ———•• A statement in an affidavit of replevin that the plaintiffs “are entitled to the possession of said property,” being in the present tense, means that they are entitled to the instant possession, and the affidavit is not insufficient for the reason that the word “immediate” was not used therein in connection with possession.</p> <p>3.-: -: Construction. Where a statement of an affidavit may be read so as to give it a meaning which will make the affidavit defective, but may also be read so as to give it a signification which will support the affidavit, the latter will be adopted, especially where it is a less strained and technical reading than the former.</p> <p>4. Affidavits: Waiver of Defects. Where an affidavit has defects in form or substance which might be amendable, if the parties in the case who might interpose objections to the affidavit appear, answer to the merits of the action, and go to trial without making objections to the affidavit, they waive the defects.</p> <p>5. Pleading: Sufficiency of Petition. If a petition fails to state a cause of action, it will not support a judgment, and it may be attacked on account of such infirmity at any stage of the proceedings in the action.</p> <p>6. Replevin: Pleading. A petition in an action of replevin commenced in a district court is the basis of the action, and must be sufficient within and of itself. The affidavit in the suit cannot be resorted to to aid the petition in essential allegations in jurisdictions where both affidavit and petition are filed in actions of replevin.</p> <p>7. -: -. A breach of the promise on which the action is predicated must be pleaded in the petition.</p> <p>8. -: -. In an action of replevin wherein the plaintiff claims the right to possession of property by virtue of a special ownership conferred by chattel mortgage thereon in his favor, the petition filed must contain allegations which show that the debt secured by the mortgage bas matured, and also that It is unpaid, and if claimed by virtue of a clause in tbe mortgage by wbicb tbe mortgagee may take possession at any time if be feels unsafe or insecure, tbe petition must also contain an allegation tbat tbe debt secured remains unpaid.</p> <p>9.--: Bond: Waiver or Objection. In tbis, a replevin action, a bond was given by tbe plaintiff before tbe property taken under tbe writ was delivered to bim. Tbe bond was imperfect or defective. On motion of defendant a new bond was required by tbe court, which was given. Tbe defendant filed answer, issues were joined, and a trial bad in wbicb tbe defendant participated. Held, Tbat tbe right to further object to tbe bonds was waived.</p>

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

<p>1. Rejection of Cumulative Testimony: Review. The action of the trial .court in excluding testimony merely cumulative, held not prejudicial, if erroneous.</p> <p>2. Criminal Law: Witnesses: Rebuttal. A witness whose name was not indorsed on the information may be called on rebuttal and give testimony which is obviously and purely rebuttal, or on a subject first brought into the case in the evidence of the defense and which is in rebuttal of and made necessary by such evidence introduced by the defense, but may not give testimony which is not directly and plainly rebuttal or which tends to prove the commission of the crime and might properly have been introduced on the part of the state as of its evidence in chief.</p> <p>3. -: Larceny: Instructions. The action of the trial court in-refusing to give certain instructions examined and approved.</p>

<p>1. Larceny: Evidence. To sustain a conviction of larceny there must be proof of tbe value of the property by competent evidence.</p> <p>2. -: -. Evidence herein held insufficient to support the verdict.</p>

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

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

<p>1. TJnauthenticated Bill of Exceptions. This court will not consider a bill of exceptions where the same is not authenticated by the certificate of the clerk of the court below.</p> <p>2. Instructions: New Trial: Review. An objection to a charge not called to the attention of the court by the motion for a new trial will not be considered.</p> <p>3. --: Assignments oe Error. An assignment of error to instructions as a whole, in a motion for a new trial or petition in»error, . is insufficient unless each paragraph is erroneous.</p> <p>4. -: Exceptions. An instruction will not be reviewed unless it appears to have been excepted to below.</p> <p>5. New Trial: Judgment Rendered in Vacation. A judge of the district court is without authority, in vacation and out of term time, to either pass upon a motion for a new trial or render a money judgment in a cause.</p>

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

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

<p>1. Review Without Bill of Exceptions. Questions of fact cannot be considered in the supreme court in the absence of a bill of exceptions.</p> <p>2. ' Instructions. Review. An assignment directed against an entire group of instructions is not available when the action of the trial court as to one or more of such instructions is not shown to be erroneous.</p>

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

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

<p>Banks and Banking: Trust Funds Deposited by Corporation: Liability oe Bank. Where certain officers and stockholders of a corporation borrowed money intended by them-to be deposited in a bank and therein held as a trust fund for the creditors of the said corporation, but such intention as well as the insolvent condition of the corporation were unknown to the bank wherein the deposit was made, the payment in good faith of the fund upon the check of an officer of the corporation did not render the bank liable as a trustee to other creditors of the corporation, or to its receiver on their behalf, merely because the proceeds of said check, with the consent of the bank, were used to take up the note on the faith of which the loan had originally been made by the bank.</p>

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

<p>Review: Evidence. The record presents no question of law. Evidence examined, and held to sustain the finding of the district court.</p>

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

<p>1. Review: Judicial Sales: Objections Not Made Below. This court, in reviewing the judgment of a district court confirming a judicial sale, will not consider- any objection to the confirmation of such sale which was not brought to the attention of the district court in the motion to set such sale aside.</p> <p>2. Judicial Sales: Description oe Realty. In the decree of foreclosure of a mortgage the real estate was described as the “S. E. % of section 24 in township 12 N., and range 15 W. of the Sixth P. M., in Buffalo county.” The description in the notice of sale was the same, except the description read, “in township 12,” without showing whether the township was north or south. Heló,, That there was no variance in the description between the decree and the notice of sale.</p> <p>3. -: Objections to Confirmation. The owner of the equity of redemption of real estate sold on mortgage foreclosure cannot be heard to object to the confirmation of the sale because prior liens existing against the real estate were not deducted from the appraisement made thereof.</p> <p>4. -: Objections to Appraisement. The objection that real estate was appraised too high or too low cannot be raised for the first time after the sale thereof.</p>

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

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

<p>1. Review: Abstract. In a case submitted under rule 2, on an agreed printed abstract, the court will not look beyond the abstract; and, in order to a reversal of the judgment below, error must affirmatively appear from the abstract itself. Closson v. Rohman, 50 Neb., 323, followed.</p> <p>2. Compromise and Settlement: Consideration. The settlement of a doubtful or disputed claim is generally a sufficient consideration for a compromise, but in order to have such effect it is essential that there be in fact a dispute or doubt of the rights of the parties. An arbitrary refusal to pay, based on the mere pretense of the debtor, made for the obvious purpose of exacting terms which are inequitable and oppressive, is not such a dispute as will of itself support a compromise resulting in a reduction of the amount of his indebtedness. Fitzgerald v. Fitzgerald & Mallory Construction Co., 44 Neb., 463, followed.</p> <p>3. Costs: Attorneys’ Pees: Insurance. In an action on a policy of insurance written on real property, the court in rendering judgment against the insurance company may allow the plaintiff a reasonable sum as an attorney’s fee, to be taxed as part of the costs. (Compiled Statutes, ch. 43, sec. 45.)</p> <p>4. -:-:-: Review. But on a review of the judgment in this court an additional sum will not be allowed as attorneys’ fees for conducting the proceedings here.</p>

Heard below before Scott, J. Submitted on motion to dismiss appeal and on motion to vacate supersedeas allowed by supreme court.

Heard below before Wheeler, J. A statement of the facts appears in the opinion. In support of an argument in favor of the contention that the property in controversy belongs in equity to the husband and should be subjected to the payment of appellant’s judgment, reference was made to the following cases: Bailey v. Gardener, 31 W. Ya., 94; Musgrave v. Parish, 11 S. W. Rep. [Ky.], 464; Seitz v. Mitchell, 94 U. S., 584; Clinton Mfg.

Tried below before Scott, J. The opinion contains a statement of the case. References to sustain the contention that there was error in the orders overruling challenges to jurors having opinions as to the guilt of the accused: Olive v. State, 11 Neb., 1; Curry v. State, 4 Neb., 545; Carroll v. State, 5 Neb., 31; Cowan v. State, 22 Neb., 523; Miller v. State, 29 Neb., 445; Owens v. State, 32 Neb., 167.

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

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

<p>1. Negotiable Instruments: Time oe Payment: Holidays. When, uninfluenced by statute, a bill or note without grace falls due on Sunday or a legal holiday, it is payable on the business day next following.</p> <p>2. -: Maturity: Grace: Sunday. When grace on a note or bill expires on Sunday or other nonbusiness day, it becomes due, and should be presented for payment or acceptance on the latest business day within or before the period of grace.</p> <p>3. --: -:-: -. The rule of the common law respecting the presentment of instruments with grace which expire on Sunday is not abrogated in this state by section 1 of the act of 1873 entitled “An act to designate certain days to be observed as holidays in respect to bills of exchange, promissory notes, and bank checks.” (General Statutes, sec. 8, eh. 32.)</p> <p>4. -:-:--: -. First Nat. BanJc v. McAllister, 33 Neb., 646, overruled.</p> <p>5. -: -. Effect of the act of 1893, amendatory of section 8, chapter 41, Compiled Statutes, not determined.</p>

<p>1. Robbery: Evidence. The prisoners, three in number, conspired to unlawfully extort money from the prosecuting witness, pursuant to which one of them, falsely pretending to be an officer, took the prosecutor into custody for an alleged misdemeanor, and demanded money, at the same time taking hold of the prosecutor by the collar, whereupon the latter took out of his pocket and delivered to his assailants the sum of $20, being at said time so frightened that he did not realize what he was doing. Held, Sufficient to sustain a conviction for robbery by putting in fear.</p> <p>2. -: -. Evidence of certain collateral facts examined, and held, inadmissible to support the charge of robbery.</p>

<p>1. Pleading. The word “made,” as used in a pleading, held to be equivalent to and to express the same meaning as “executed.”</p> <p>2. Official Bonds: Breach: Pleading. An official bond was copied in full in a petition immediately following an allegation of its execution and delivery. Held, To be a sufficient pleading of the covenants and promises of the obligors to the bond. The petition further held to sufficiently state certain breaches of the promises of the bond.</p> <p>3. County Clerk: Fee Book: Fees: Excess. It is a duty in respect to which the statute is mandatory, that a county clerk shall keep a fee book and shall enter therein every item of fees received or earned by him in the manner and with the particular information in regard to it prescribed by statute; also to make a correct report, as required by law, of the same to the county board, and to pay, without demand, any excess received over and above the amount stated and which may be allowed by law, into the county treasury.</p> <p>4. -: Fees: Excess: Adjustment: Fraud: Res Judicata. A county board, in its examination of reports of a county clerk, of fees received by him, and in the adjustment of the account between him and the county, acts ministerially; and if, through fraud or mistake, he is allowed to retain fees which he should not, such adjustment is no defense or bar to an action by the county to recover such fees.</p> <p>5. -:-: --: Interest. Interest may be recovered on such a claim and against the sureties in the bond, without a demand being made for payment of the principal, as it should have been paid into the county treasury without demand.</p>

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

<p>Unauthenticated Bill of Exceptions. A bill of exceptions unauthenticated by the certificate of the clerk of the trial district court will not be considered.</p>

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

<p>1. Eminent Domain: Damages. If private property is to be appropriated to public use, steps must be taken in tbe manner prescribed by law to appraise tbe damages and provide for their payment.</p> <p>2. -: -: Husband and Wipe: Trusts. A husband who had from the use of intoxicants become wholly, or partially, incapacitated for the transaction of business, conveyed real estate to his wife for the purpose of preserving it for the use and benefit of the family and to place it beyond his power of disposal that it might not be squandered or wasted. Held, That the title to the property was in the wife, and that in appropriating a portion of it to the use of the public for a highway, the county must provide for the payment of the damages to the wife; that there was no trust relation between the husband and the wife which would render his waiver of the damages caused by such appropriation a release of them available as' a defense in an action by the wife against the county 'to recover the damages.</p>

<p>1. Building Contracts: Rights oe Subcontractor. A subcontractor, between whom and the employer of the contractor there is no privity of contract, cannot, as a matter of right, — merely because employed by the contractor to perform a portion of the labor contracted for, — if not paid by the contractor, demand payment of the employer, and, on refusal, maintain suit against the employer therefor.</p> <p>2. -:-: Erection oe Schoolhottses. A contract with a school district for the erection of two schoolhouses provided that estimates of the sums due the contractor be made by an architect as the work progressed and 85 per cent of such estimates paid at the time made and presented; 15 per cent of the amount of estimates to be retained by the school district for a stated period of time, for the expressed purposes of insuring the district that all claims of subcontractors and laborers or others be fully paid by the contractor; also to insure the faithful and full completion of the buildings according to contract. Held, Not to constitute the school district primarily liable to a subcontractor for the sums thus retained, nor to constitute the district a trustee of such funds for the benefit of the subcontractor, nor to authorize the subcontractor to interfere in a suit at law by him against the district, in the retention of such funds by it or application in the subservience of the purposes to which they were assigned by the contract.</p> <p>3. -: -: -: Bondsmen. The contractor abandoned the work and his contract. His bondsmen took charge and management of the completion of the buildings and fulfillment of the contract, and an additional contract was entered into between them, the subcontractor, and the school district. Held, This latter contract became of force and binding on all parties, including the school district; also that it provided for payment of all subsequent estimates of amounts due on the buildings for work by a subcontractor to be made directly to Mm, and this to apply to the whole sum of any and all such estimates, inclusive of the 15 per cent which was to be retained by the district under the oviginal contract and by the original contractor under the contract of the subcontractor.</p> <p>4. -: -:--. The evidence held to show that during a short time the district had charge of the work on the buildings it had paid the defendant in error in full for all work performed and material furnished by'Mm during such time. Held, further, That the evidence discloses that the extras, both labor and material, were included in estimates made during the progress of the work and paid for conformably to the terms of the contract, viz., 85 per, cent at the times of estimates and 15 per cent retained.</p> <p>5. Excessive Judgment: Rbmittitue. Held, That the verdict and judgment were $1,021.97 in excess of the true amount. Defendant in error is given leave to file a remittitur of said sum as of the date of the judgment, within a stated time; if condition is complied with, the judgment, as modified, to stand affirmed. On non-compliance with the condition, the judgment to stand reversed and the cause remanded.</p>

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

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

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

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

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

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

<p>Bond of School District: Collection oe Taxes eob. Payment: Loss oe Funds in Insolvent Bank. A school district issued a bond under and in pursuance of subdivision 15, chapter 79, Compiled Statutes, .and a sufficient amount was raised by taxation and paid to the county treasurer by the taxpayers of the district in accordance with law, for the purpose of paying said bond according to its terms, but before the maturity of the bond, the treasurer, without the knowledge and consent of the holder of the bond, lost the money by depositing the same in insolvent banks. Held, Such loss did not fall upon the bond-holder, and that the tax levied by the county hoard upon the property of the school district to pay the balance due on said bond was proper.</p>

Heard below before Sullivan, J. The opinion contains a statement of tbe case.

<p>County Clerk: Duties: Fee Book: Mandamus. Under the provisions of chapter 28, Compiled Statutes, it is the duty of the county clerk to enter in the proper fee book a full statement of the several amounts paid him for his services as clerk of the board of county commissioners and for making out the tax lists during his incumbency of office, and the performance of these duties may be compelled in an action of mandamus brought by the county as relator after the expiration of the term of office of such clerk.</p>

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

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

<p>Mortgages: Foreclosure: Sale: Parties: Altas Summons. When a decree of foreclosure had been entered against all the defendants in pursuance of which a sale had been made and confirmed, the service on another proposed defendant of an alias summons, authorized solely to bring him into court, did not justify the foreclosure of his rights without the filing of any pleading whereby such rights were called in question.</p>

Error from the district court of Lancaster county. Tried below before Tibbets, J. The facts are stated in the opinion. The warrantor did not have sufficient notice of the pending action, and is not bound by the adjudication.

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

<p>1. Rehearing. A rehearing will not be granted when it is clear that no other conclusion than that already reached is possible.</p> <p>2. Constitutional Amendments: Submission oe Proposition: Elections. A proposition to amend the constitution of this state can only be submitted at a general election at which there are elected senators and representatives.</p> <p>3. -:-: -: Result. To effect the adoption of an amendment to the constitution of this state submitted by the legislature it must receive more than one-half the highest number of votes cast at such general election, whether such highest number be for the filling of an office or for the adoption of a proposition.</p>

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

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

<p>1. Landlord and Tenant: Lira Estate: Rights oe Reversioner. The death of a tenant for life terminates the lease of the premises existing between him and his lessee, and the latter may at once quit possession without incurring any liability to the reversioner for rent.</p> <p>2.--: - — ■:--. The lessee of a tenant for life is charged with notice of the extent of his landlord’s title, and on the termination of the life estate he becomes a tenant at sufferance.</p> <p>3. -: --: -: Rents. Such a lessee remaining in possession after the termination of the life estate, in the absence of an express contract with the reversioner, becomes liable to the latter for the reasonable value of the use and. occupation of the premises, but not liable on the contract with the tenant for life.</p> <p>4.---: -: -: -•. A tenant for life leased the premises for one year and died before the expiration of the term. The lessee remained in possession without a contract with the reversioner, and after the expiration of-the lease by its terms, paid the full amount of rent reserved therein to the administrator of the tenant for life. Held, (1) That the reversioner had no claim against the estate of the tenant for life for the money; (2) that the money paid by the lessee to the estate of the tenant for life was not the property of the reversioner; (3) that though the administrator had converted such money to his own use, or the use of another, he is not liable therefor to the reversioner,</p>

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

<p>1. Sales: False Representations oe Buyer: Rescission. In order to authorize the rescission of a sale on the ground that it was induced hy the false representation of the vendee, such representation must he made as to an existing fact and not relate to something promised to he done hy the vendee in the future.</p> <p>2. -: -: Evidence. A merchant ordered goods of a wholesale dealer, promising to pay one-half the price of the goods on receipt of the same, and the remainder at a day named in the future. He did not pay on receipt of the goods, as promised, hut the merchant did not intend at the time the promise was made not to pay for the goods. Held, That the facts did not warrant the conclusion that the sale was induced by the fraudulent representation of the vendee.</p> <p>3. -: -:--. A merchant stated to a commercial agency that in his opinion his stock of goods was worth $8,000. The commercial agency communicated this opinion to a wholesale dealer, and, at the same time, informed the latter that while the opinion of the merchant was given in good faith he had placed too high a value on his stock. The wholesale dealer, nevertheless, relied upon the opinion expressed hy the merchant and sold him goods on credit. The goods were worth $5,000. Held, That the facts did not warrant the conclusion that the sale was induced hy the fraudulent representation of the vendee.</p>

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

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

Error from' the district court of Douglas county. Tried below before Fawcett, J. The opinion contains a statement of the case. As courts of record having original and exclusive jurisdiction, county courts follow the practice and procedure of the common law, except as such practice or procedure is modified by statute. (4 Am. & Eng. Ency.

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

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

<p>Mortgages: Payment: Authority oe Agent: Evidence. Evidence examined, and held to sustain a finding that a mortgagor who had indorsed the notes secured by the mortgage to a third person, had authority' as agent of such person to receive payment from the mortgagor.</p>

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

<p>1. Insurance: License Tax. Chapter 38, Session Laws, 1895, authorizing the imposition of a license tax on insurance companies for the purpose of maintaining volunteer fire departments, cannot be construed as in any way extending or modifying the powers of cities of the second class in that particular, because to so construe it would render the act in conflict with section 11, article 3, of the constitution.</p> <p>2. -:--. By force of chapter 14, article 1, Compiled Statutes, such cities have, however, independently of the act of 1895, power to impose an occupation tax on fire insurance companies doing business within the city and to apply the proceeds of that tax to the maintenance of volunteer fire departments.</p> <p>3. License Tax: Enforcement. The payment of such tax cannot, however, be required as a condition precedent to doing business, nor can payment of the tax be enforced by punishing, criminally, persons who do business without first paying the tax.</p> <p>4. —--•:--. When the law imposing a tax provides a special means for enforcing it, the method so provided is generally exclusive, and if the only method adopted be illegal, the courts cannot substitute a different and legal method.</p> <p>5. Municipal Corporations: Occupation Tax: Ordinance. A city ordinance imposed an occupation tax and provided only an illegal method for its enforcement. Held, That the whole ordinance was thereby rendered inoperative.</p>