Volume 53 — Nebraska Reports

<p>Error from the district court of Buffalo county. Tried below before Holcomb, J.</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 Ferguson, J. The facts are stated in the opinion. A court of equity will allow a reasonable time to perfect a title, and when valid, in the absence of fraud, will compel the vendee to accept it.

<p>1. Assignments of Error: Motion for New Trial. Errors in a petition in error must be assigned separately and this rule is not complied with by an assignment that there was error in overruling the motion for a new trial where such motion embraces several distinct complaints of errors.</p> <p>2. Instructions: Exceptions: Review. Where a party did not except to the refusal of the trial court to give an instruction requested by such party he cannot be heard to complain of the refusal in the supreme court.</p> <p>3. Review: Exclusion oe Evidence: Bill oe Exceptions. Error alleged as to the exclusion from the jury of the whole or a part of an alleged book of original entries cannot be .considered in the supreme court when the book is not to be found in connection with the bill of exceptions.</p> <p>4. Depositions: Oh.iection to Answer. An answer'to an interrogatory in a deposition contained both competent and incompetent testimony. Held, That an objection was properly sustained to the entire answer.</p>

Error from the district court of Douglas county. Tried below before Keysor, J. The opinion contains a statement of the case. Held: Adams v. Wilson, 12 Met. [Mass.], 138; Barlow v. Ocean Ins. Go., 4 Met. [Mass.], 270; Russell v. Cook, 3 Hill [N. Y.], 504; Yates v. Donaldson, 61 Am. Dec. [Md.], 290; Renwick v. Williams, 2 Md., 356; Jones v. Berryhill, 25 la., 289; Thompson v. Shepherd, 12 Met. [Mass.], 311; Allen v. First Wat. Bank, 17 Atl.

<p>1. Execution: Appraisement: Review. This court will not review the appraisement made of real estate'sold on execution, for the purpose of determining whether such appraisement is too high or too low, unless objections on that ground be made and filed in the court from which the execution issued, before the sale occurred, and such objections be ruled upon by said court.</p> <p>2. -: Sale: Review. Evidence examined and held to sustain the finding of the district court that the execution creditor had not caused the real estate in controversy to be levied upon and sold contrary to a valid agreement existing between himself and the execution defendant.</p>

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

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

Error from the district court of Seward county. Tried below before Wheeler, J. The opinion contains a statement of the case. Defendants did not plead that they were discharged. Evidence that the physicians were discharged is not admissible under a general denial. (1 Ency.

Heard below before Strode, J. See opinion for statement of the case. Service of summons in Valley county was not made upon any agent of the insurance company. There is no evidence that the company ever had an agent in that county, but the contrary is affirmatively shown. The judgment in the district court of Valley county is void.

Heard below before Tibbets, J. Tbe opinion contains a statement of tbe case. Tbe draft Was not deposited for collection but for credit, and tbe only relation between tbe parties is that of debtor and creditor. (National Commercial Banlc v. Miller, 77 Ala. 168; St. Louis & S. F. R. Go. v. Johnston, 27 Fed. Rep. 243; Ditch v. Western Nat. Banlc, 10 Banking L. J. 354.) The alleged insolvency of the bank affords the plaintiff no ground of action.

<p>1. Negotiable Instruments: Indorsement: Title: Intent. The question whether title passes to a negotiable instrument delivered to a bank under ia restrictive but ambiguous indorsement, without an express contract, but in pursuance of an established usage, is one of fact rather than law, and depends on the intent of the parties.</p> <p>2. -- — : -: Form: Parol Evidence. As between the immediate parties the form of an indorsement is not conclusive, but the nature of the contract may be proved by parol evidence.</p> <p>3. -: Sale: Bailment. Evidence examined, and held, to show a sale of the instrument in controversy, and not a bailment for collection.</p> <p>4. Sales: Fraud: Rescission: Banks: Insolvency. The right to rescind a sale for fraud is lost if not exercised before the vendee transfers the property to an innocent purchaser for value. This rule applies to an attempt to recover a chose in action sold to an insolvent bank in ignorance of its insolvency, as against the claims of a transferee from the bank who has parted with value on the faith of the bank’s title.</p>

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

Heard below before Weltv, J. References: Riddell v. Shirley, 5 Cal. 488; Randall v. Buffington, 10 Cal. 491; Pratt v. Burr, 5 Biss. [U. S.] 36; Bugg v. Russell, 75 Ga. 837; Wedgeioood v. Withers, 35 Neb. 583. A homestead is not liable for debts contracted before the homestead was purchased.

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

<p>1. Conversion: Evidence. Evidence examined and held to sustain the finding adverse to the contention of plaintiffs in error.</p> <p>2. Trial: Leading Questions. It is within the discretion of the district court in a proper case to allow leading questions, and the exercise of such discretion, in the absence of an apparent abuse thereof, is not the subject of review on appeal. {St. Paul Fire & Marine Ins. Go. v. Gotthelf, 35 Neb. 351.)</p> <p>3. Evidence: Telegram: Presumption oe Delivery. A similar presumption of delivery results from the entrusting to a telegraph company for transmission of a message properly addressed to that which follows from the posting of a letter for transmission by the United States mail.</p> <p>4. -: -: —:-. Such presumption results from the office of a telegraph company to the public, which, in this state, is that of a carrier of intelligence with rights and duties analogous to those of carriers of goods and passengers. {Western Union Telegraph Go. v. Gall Publishing Go., 44 Neb. 326.)</p>

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

Error from the district court of Clay County. Tried below before Hastings, J. The opinion contains a statement of the case. A passenger’s check for baggage is only prima facie evidence that the carrier received the baggage, and may be rebutted by proof that the carrier did not, in fact, receive it. (Ringwallv. Wabash R. Co., 45 Neb. 760; Marquette, II. & O. R. Co. v. Kirlmood, 45 Mich. 51; Isaacson r. Ffeio YorJc C. & H. R. R. Co., 16 Am. & Eng.

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

<p>1. Information: Verification: Objection. It is too late to object to the verification tof an information after tbe accused bas been arraigned, and pleaded not guilty, unless sucb plea bias been withdrawn.</p> <p>2. -: Participants in Crime: Defendants. All participants in a crime may be jointly charged in the same information, or they may be informed against separately, as the prosecutor may elect. It will not defeat a criminal prosecution for the evidence to show that all perpetrators of the crime were not made defendants.</p> <p>S. Criminal Law: Sufficiency of Evidence. To warrant a conviction in a criminal prosecution it is not essential that the evidence adduced on the trial should exclude every possible hypothesis but the guilt of the accused.</p> <p>4. -: Instructions. Mere non-direction by the trial court will not work a reversal where proper instructions covering the point were not requested.</p>

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

<p>1. Judgment: Finding: Evidence. Judgment based upon a finding without sufficient evidence to sustain it is merely erroneous, but not void.</p> <p>2. Pleading and Proof: Variance: Review. There must exist a material variance between tbe allegations and tbe proof to work a reversal of a cause.</p>

<p>1. Counties: Allowance oe Claims: Items. A claim against a county cannot foe audited and allowed in advance of tlie furnisfoing of the items or the rendition of the services therein charged.</p> <p>2. -:-: County Board. A county hoard may not delegate to its chairman and clerk the power to audit claims against the county.</p> <p>3. -:-■: Warrants. It is only after the allowance of a claim upon the treasury of a county that a warrant in payment thereof may foe properly drawn.</p>

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

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

<p>1. Insurance: Proof of Loss: Classification of Property. The general allegation in a petition that certain insured property, otherwise fully described, was real property, does not require tta; the insured, in making proofs of loss in an action on a policy, should show that the property was real property and totally destroyed and thereupon rely upon the provisions of the valued policy law; but he may show the value as it was just before the fire, and its value just after, as affording data for the assessment of his damages, without attempting to classify the property as real or personal.</p> <p>2. ---: Value of Property: Evidence. Where there was evidence which showed that the property had been totally destroyed and " that its value before such destruction was of a certain amount, the jury was justified in accepting this testimony as the basis for a recovery by the plaintiff, notwithstanding the fact that there wás evidence contradictory of each of these propositions.</p>

<p>Insurance: Prooes oe Loss: Classification oe Proeertt: Value.</p>

<p>1. Courts: Power to Correct Records. A court of record lias tlie Inherent power to correct its own records, even after an appeal, so that such amended record may show correctly the history of the * proceedings in the district court before the appeal therefrom.</p> <p>2. -: •— -■. A trial court, after an appeal has been perfected therefrom, has no power to so correct its records, that, in fact, a modification of the judgment already appealed from shall be effected. Norval, J., dissenting.</p> <p>3. Amendment of Records: Review. The ruling of the district court in this case is reversed in view of the fact, on the one hand, that, if the amendment reciting that the judgment was “upon agreement of parties” was tantamount to a substantive order after appeal it was void and should not have been considered by the district court, and if, on the other hand, it was a mere recitation of events which had occurred during the progress of the trial in the county court, the district court should not have held the appeal necessarily to have been vitiated by the amendment, as it did by dismissing the appeal because of the recitation of such amendment. Norval, J., dissenting.</p>

<p>Courts: Power to Correct Records: Appeal.</p>

<p>1. Payment: Application. Where a debtor remits money to his creditor without a request or instruction on what particular debt to apply the same, the creditor may apply the money upon any debt of his debtor which he chooses.</p> <p>2. Action on Notes: Excessive Verdict: Remittitur. Verdict of the jury held to be excessive and remittitur ordered.</p>

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

<p>1. Injunction: Remedy at Law. A litigant cannot successfully invoke the extraordinary remedy of injunction to enforce a legal right unless the facts and circumstances in the case are such that his ordinary legal remedies are inadequate, — i. e. that the pursuit of those remedies, or some of them, will not afford him as prompt and efficacious redress as the remedy by injunction.</p> <p>2.-: Trespass: Ejectment. A plaintiff is not entitled to a mandatory injunction to remove from his real estate one who has without color of title unlawfully and forcibly entered and wrongfully remains thereon, though such trespasser be insolvent.</p>

<p>Injunction: Remedy at Law. On the authority of Warlier v. Williams, 53 Neb. 143, the decree of the district court is affirmed.</p>

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

<p>Criminal Daw: Failure to File Information: Discharge of Prisoner. One who has been admitted to bail after a. preliminary ex- . amination on a criminal charge, and who becomes a fugitive, is not, after his return or apprehension, entitled to he discharged because no information was filed against him at the term at which he was recognized to appear, and while he was a fugitive.</p>

<p>1. Action on Bond: Answer: Conditional Signing. In a suit on a bond, an answer pleading that a defendant signed on condition that others named should also sign before the bond should be delivered and that such others did not sign, is insufficient unless it further alleges that plaintiff had notice of the condition.</p> <p>2. --:--: Defense Not Pleaded. One of several d'efendants, . sued on a bond, obtaining a favorable verdict on the ground that her signature had been secured by fraud, the other defendants, against whom verdict is at the same time rendered, cannot be heard to complain of the judgment because the release of the successful defendant also released them, they not having pleaded the invalidity of her obligation as a defense for themselves.</p>

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

<p>1. Void Taxes: Injunction. “A party who is not guilty of laches may invoke the aid of a court of equity to restrain the collection of a void tax or assessment.” Morris v. Merrell, 44 Neb. 423, followed.</p> <p>2. Taxation: Special Assessments: Cities. Where special taxes or assessments against property to pay expenses of improving the streets of a city are void, they cannot be enforced solely on the ground of the benefits of the improvements to the owners of the abutting lots or lands.</p>

<p>1. Instructions: Assignments oe Error. Alleged errors in giving instructions should be separately assigned in the motion for a new trial, as well as in the petition in error.</p> <p>2. Partnership Note: Evidence. A note executed by a member of a firm or partnership in the firm name, where it does nol appear on its face to have been executed by the firm in any other capacity than as a principal debtor, and the partnership is a commercial one, is presumptive evidence that the note is the note of the partnership, and shows a valid claim against it.</p> <p>3. Conclusion of Witness on Vital Issue: Ebrob. A portion of the evidence examined, held objectionable and erroneously admitted.</p>

Error from the district court of Holt county. Tried below before Chapman, J. The facts are stated in the opinion. References: Manley v. City of Atchison, 9 Kan. 364; Supervisors of Richmond County v. Wandel, 6 Bans. [N. Y.] 33; Sullivan v. State, 23 N. E. Rep. [Ind.] 150; State v. Lincoln County, 18 Neb. 283.

<p>Payment of Mortgage Debt to Clerk of Court: Foreclosure. After the commencement of an action to foreclose a real estate mortgage for the entire debt, but before judgment, the mortgagors, in vacation, without an order of court or plea, deposited with the clerk of the court the full amount- of the mortgage debt and all .costs. The clerk embezzled the money and absconded. Held, That the clerk did not receive the money by virtue of his office, but in his individual capacity as the mere agent of the mortgagor, and that such deposit of the money did not extinguish the mortgage. Irvine and Ragan, CC., dissenting.</p>

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

<p>1. Criminal Law. Refusal to Atwoint Counsel fob Accused:' Review. The action of the trial court in overruling a motion for the assignment of counsel to defend a prisoner cannot be reviewed here, where the evidence adduced on the hearing was not preserved by a bill of exceptions.</p> <p>2. Bill of Exceptions: Recokb of Voib Dibe Examination. The certificate of the trial judge to a bill of exceptions "that the foregoing is all the evidence offered by either party on the trial of the cause” is not sufficient to embrace the voir dire examination of a juror, or the evidence adduced on the hearing of a challenge to the whole panel or array of jurors.</p> <p>3. Intoxicating Liquors: Unlawful Sale: Evidence. In a prosecution-under section 20, chapter 50, Compiled Statutes, for keeping intoxicating liquors for sale in violation of law, the possession of such liquors by the accused is presumptive evidence of guilt in ihe district court, as well as before the examining magistrate, unless the accused “shall satisfactorily account for and explain the possession thereof, and that it was not kept for an unlawful purpose.”</p>

<p>Aliens: Coun oilmen of City: Qualifications: Elections: Contest. In cities of the second class of less than 5,000 inhabitants it is required that a councilman shall be an elector of this state. Held, That while a mere declaration of intention- to become a citizenconformably with the naturalization laws of the United States may, under the constitution of Nebraska, constitute a resident alien an elector, provided other required conditions exist, yet that, by implication, this status cannot be extended to the son of such alien merely because the declaration above referred to was made before such son had attained his majority.</p>

<p>1. Sale of Cattle: Evidence oe False Weight. Evidence examined, ■ and held not to support tbe finding of tbe jury that plaintiffs in error bad falsely weighed certain cattle sold one of tbe defendants in error. Norval, J., and Irvine and Ryan, CC., dissenting.</p> <p>2. Fraud. Fraud is not to be presumed; it must be proved.</p> <p>3.-: Evidence. If, from tbe entire evidence on tbe subject, good faith or an honest mistake may be as rationally and reasonably inferred as fraud, then tbe law leans to tbe side of innocence.</p> <p>4.--: - — ■—. Direct evidence is not essential to establish fraud. It may be inferred from circumstances; but sucb inference must not be guesswork or conjecture, but tbe rational and logical deduction from tbe circumstances proved.</p> <p>5. Equity: Questions of Fact for Jury. A district court while sitting as a court of equity is clothed with tbe inherent power to submit to a jury any question of fact in tbe case.</p> <p>6. Actions: Forms: Pleading. To maintain a civil action under our Code, it is not essential that the action be denominated either an action at law or in equity, nor that it be given any particular name. If the litigant pleads the facts, and they constitute a cause of action or defense, the courts are bound to award the relief due.</p> <p>7. Chattel Mortgages: Sale oe Chattels: Conversion by Mortgagor: Trusts: Remedy oe Mortgagee. Evidence examined and held that the district court erred in dismissing the action of the plaintiffs in error.</p> <p>8. -: -: -: —:-:--. Where a mortgagor of chattels converts the same into cash, at their full value, and deposits the money with his agent, who has notice of the mortgage lien, an action will lie at the suit of the mortgagee against such agent, for the proceeds of such property; and the fact that the mortgagee did not pursue and seize the mortgaged property does not, of itself, afford such agent a defense to such action.</p>

Error from tbe district court of Richardson county. Tried below before Bush, J. The opinion contains a statement of the case. The railroad company acquired the right to build its railroad where it did, and constructed it in a manner proper for railroad purposes. The injuries complained of resulted from surface waters, and the company did not incur liability for the damages.

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

<p>Notes: Rates or'Interest. "Where a note or bond provides for interest at a lawful rate from date until maturity, and for a higher lawful rate thereafter, the latter provision is not in the nature of a penalty, but is authorized by section 3, chapter 44, Compiled Statutes, and accordingly enforceable in an action on the contract. (Ilavemoyer v. Paul, 45 Neb. 373.)</p>

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

<p>Review: Conflicting Evidence. Decree appealed from held to be sustained by sufficient, although conflicting, evidence.</p>

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

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

Tried below before Thompson, J. The facts are stated in the opinion. The court erred in overruling the plea in abatement as to the fourth count in the information. For the crime sought to be charged therein the plaintiff in error had neither had nor waived a preliminary hearing. There was a fatal variance between the complaint and tlie information.

<p>Appeal from tlie district court of Lancaster county. Tried below before Strode, J.</p> <p>References: Merriam v. HartfordcC-N. H. B. Go., 20 Conn. 354; Packard v. Getman, 6 Cow. [N. Y.] 757; Buckman v. Levi, 3 Camp. [Eng.] 414; Frith v. Barker, 2 Johns. [N. Y.] 327; Foster v. Dohle, 17 Neb. 631; Marriner v. Paxton-, 17 Neb. 634; Irish v: Pheby, 28 Neb. 231; Weir v. Barnes, 38 Neb. 875; Pond Machine Tool Go. v. Robinson, 37 N. W. Rej): [Minn.] 99; McIntyre- v. Tranitner, 63 Cal. 429; Hubbard v. Brown, 90 Mass. 590; Watts-Gampbell Go. v. Yeungliny, 125 N. Y. 1; Badger Lumber Go. v. Mayes, 38 Neb. 830.</p>

Tried below before Thompson, J. Tbe facts are stated in tbe opinion. The information does not sufficiently describe the owner of the money alleged to have been embezzled. (Stale v. Potter, 28 la. 554; Smith v. State, 21 Neb. 556; Ex parte Eads, 17 Neb. 145; Grant v. State, 17 So. Rep. '[Fla.] 225.) The court erred in making improper remarks concerning evidence.

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

Tried below before Baker, J. The facts are stated in the opinion. The warrant under which the arrest was made was invalid and the information should have been quashed. [Rafferty v. People, 69 111.

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

<p>Counties: Taxes: Discretion op County Board: Mandamus. AVhere county authorities have levied taxes to provide'for the current expenses of a certain year to the constitutional limit, courts have no authority to control the action and discretion of such county hoard. Following Youny v. Lane, 43 Neh. 813.</p>

<p>Elections: Ballots: Intention oe Elector. The intention of an elector must be ascertained from his ballot, and any inaccuracies in the preparation of such ballot cannot be urged for the first time after an election, to defeat the clearly expressed intention of the voter.</p>

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

<p>Sheriff’s Liability for Failure to Make Levy: Action: Evidence. In order for an execution or attachment creditor to recover his debt against a sheriff, because of the latter’s failure to seize under the writ sufficient property of the debtor to satisfy the same, the burden is upon such creditor to plead and prove that, during the life of the writ, his debtor was possessed of property liable to be seized under the writ, and that the sheriff negligently failed to - seize such property.</p>

<p>1. Instructions: Requests: Review. Before error can be predicated upon tbe failure of a district court to instruct the jury on some particular feature of a case the party complaining must have by a proper instruction requested the court to instruct upon such feature.</p> <p>2. Animals: Agister’s Lien. On® who feeds and takes care of live stock in pursuance of a contract therefor with the owner has a lien on such stock to secure his recompense for such feed and care. (Compiled Statutes, ch. 4, art. 1, sec. 28.)</p> <p>3. ;-: -. An agister cannot be deprived of his lien upon live stock except by his voluntary relinquishment thereof or by such conduct on his part as estops him from asserting it.</p> <p>4. -: -. The taking by the owner of live stock from the possession of his agister without the latter’s consent does not divest his lien.</p> <p>5. -: -. If a lien exists against live stock for its feed and care a purchaser of such stock is charged with notice of such lien. That he purchased such stock for value without actual notice of such lien affords him no protection against the same.</p>

<p>1. Dower: Rights of Widow. The statutes of the state expressly provide how a widow may be lawfully barred of dower in the lands of which her husband died seized, and this bar is made to’ depend upon her voluntary act.</p> <p>2.--: Effect of Husband's Debts: Descent. The lands of an intestate descend to his heirs subject to his unsecured debts; hut his widow’s dower estate in simh lands is not incumbered with such debts.</p> <p>3. -: Rights ov Widow. The lands of a husband during his-life are subject to his wife’s inchoate right of dower therein; and, at the instant of his death intestate, the law transmutes the inchoate dower lien into an absolute dower estate, subtracts it from the lands of the intestate and vests the right thereto in his widow.</p> <p>4. Administrator’s Sale: Dower. The sale of the lands of his intestate by an administrator, made in pursuance of a license therefor to pay debts allowed against his estate, does not, of itself, divest the widow's dower estate in such lands.</p> <p>. 5.--:-. A sale of lands by ah administrator to pay the debts of his intestate is a judicial sale, and the doctrine of caveat emptor applies to a purchaser thereat.</p> <p>6. -: -: Notice to Purchaser. Where the record of a proceeding, which resulted in a district court’s licensing an administrator to sell the lands of his intestate, discloses that such intestate left a widow, this is, of itself, notice to a purchaser at such sale of such widow’s dower estate in such lands.</p> <p>7. -: Pasties to Proceeding: Dower: Estopped. A widow made party to a proceeding by her husband’s administrator to sell the lands of which he died seized to pay debts allowed against his estate does not estop herself from claiming her dower estate in the lands sold solely because she neglected to appear in such proceeding.</p> <p>8. -: -: -: -. Nor does she estop herself from claiming her, dower estate in such lands because she attended . the administrator’s sale, made no objections thereto, and neglected to advise the bidders thereat that she had a dower estate in such lands.</p> <p>9. -: -: -: —. Nor is such widow estopped from claiming her dower estate in the lands so sold because she received a part of the proceeds of such sale as her “distributive share of such estate;” such payment not having been made to nor received by her in lieu of her dower estate.</p>

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

<p>Replevin: Judgment: Bond: Liability oe Sureties. Where, in a replevin suit, the defendant recovers and judgment is entered absolutely for the value of the property, and not in the alternative, for a return, or its value if a return cannot be had, the sureties on the replevin bond are not liable for the satisfaction of such judgment.</p>

<p>1. Conveyances: Acknowledgment. As between the parties an acknowledgment is not essential to tlie validity of a conveyance, unless the property be a homestead, or for the purpose of barring dower.</p> <p>2. -: -: Marbied Women. A conveyance by a married woman of ber separate property, not her homestead, is valid between the parties although not acknowledged.</p> <p>3. Evidence: Conveyances: Acknowledgment. A valid acknowledgment permits a conveyance to be received in evidence without further proof; but one not acknowledged may be received in evidence if its execution and delivery be otherwise proved.</p> <p>4. Husband and Wife: Mortgages: Consideration. A married woman may pledge her separate estate to secure an indebtedness of her husband, but there must be a new consideration to sustain-a mortgage to secure his antecedent debt.</p> <p>5. -. -. --Tke making of further advances to the husband is a sufficient consideration to sustain a mortgage by the wife of her separate property to secure an antecedent debt. In such case the repayment of the subsequent advances does not discharge the mortgage.</p> <p>6. Mortgages: Consideration: Evidence. Evidence examined, and held to conclusively show a delivery of the mortgage in suit, and a valid consideration therefor.</p>

<p>1. Judgments: Equitable Relief. A court of equity, in granting relief against judgments, is not restricted to cases where the court entering the judgment complained of was without jurisdiction, but will extend its assistance in cases where jurisdiction .was obtained, but the defendant, without fault or negligence on his part, hut by accident or misfortune, was prevented from making his defense, provided it he further shown that he had a good defense to the merits.</p> <p>2. -: -. Where judgments were rendered in the county court' and transcripts thereof filed in the, district court and the lands of the defendant were levied upon and advertised for sale, all before he learned of the pendency of the suit and when he had • a good defense to the merits, hold, that the remedy by proceedings in the county court to vacate the judgments under section 602 of the Code was inadequate and injunction a proper remedy.</p>

<p>1. Corporations: Stock: Liability oe Subscriber. The capital stock of a corporation must be fully subscribed before an action will lie against a subscriber to recover assessments thereon, unless by law or charter provision the corporation is permitted to proceed ¿ with its main design with a less subscription. (Lwesey v. Omaha *- Hotel Go., 5 Neb. 50.)</p> <p>2. -: -: -: Estoppel. A subscriber may, however, by his conduct, either waive or estop himself from setting up such a defense.</p> <p>3. -: -: -. One who acts as treasurer of a corporation, receives payment of assessments from other subscribers, himself pays certain assessments, and disburses the funds of the corporation in carrying out its main object, is estopped to set up that the stock has not all been subscribed, although at the time of such acts he was ignorant of the deficiency.</p> <p>4. -: Knowledge of Agent: Liability of Principal. One elected treasurer of a corporation, who1 with the consent of its promoters permits an agent to' perform all the active duties of the office, but in the name of the treasurer, is responsible for the conseguences of the agent’s acts as if they were his own, and is charged with notice of all facts learned by the agent by reason of his performance of such duties.</p>

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

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

<p>Summoning Jurors. The provisions of section 664 of the Code of' Civil Procedure in regard to summoning jurors, “Whenever at. any general or special term or at any period of a term for any cause there is no panel of * * ’? petit jurors,” are broad enough to cover and include any and all possible reasons for which at any term of a court there may be no panel of jurors present for the trials of causes.</p> <p>2.---: Criminal Cases. The provisions of the section to which reference has just been made are applicable in relation to jurors for trials of criminal causes. (Criminal Code1, sec. 466.)</p> <p>3. -: -. During the pendency of a term of district court, for which no panel of jurors had been provided for service by the proper officers, a crime was committed and an infprmation filed by the county attorney charging parties with the commission, of the crime and the accused were brought before the court for trial. Held, To be a condition of affairs within the import of section 664 of the Code of Civil Procedure, and the action of the trial court in ordering jurors summoned as prescribed in said section was proper.</p> <p>4. Names. The names “Mrs. Fred Stéinburg” and “Mrs. Fred Steenburg,” the first .indorsed on an information as the name of a witness, and the second appearing in testimony as her name, are idem sonans.</p> <p>5. Witnesses: Names: Information. It is allowable, though probably not the best practice, to indorse the name of - a married woman on an information as a prospective witness in a criminal case by the use of her husband’s surname and prefixed thereto the appellative abbreviation “Mrs.” and the Christian name or names of her husband or the initial letter or letters thereof.</p> <p>6. -: -: - — . The law does not recognize other than the one or first Christian name, but where a person as a matter of fact has a second or middle Christian name and is commonly known or identified by the use of such middle Christian designation, if his wife’s purposed use as a witness in, a criminal cause is evidenced by an indcjrsement of her husband’s surname and' the abbreviation “Mrs.,” together with the middle Christian appellation of the husband, it is sufficient where it does not appear or there is no complaint that the accused person was misled thereby or lacked information of what person was to be produced as a witness.</p> <p>7. -: ---. The main purpose of the requirement that the names of witnesses be indorsed on the information in a criminal action is to convey to- the accused information or knowledge of the identity of witnesses to be produced on behalf of the ’ state at the trial.</p> <p>8. Harmless Error: Evidence. The admission of immaterial testimony is not sufficient ground for the reversal of a judgment where not prejudicial to the rights of the complaining party.</p> <p>9. Instructions: Reasonable Doubt. A portion of an instruction, . worded as follows: “You are not at liberty to disbelieve as jurors if you believe as men. Your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered,” — held not objectionable and erroneous when read and construed with the further portions of the same instruction and the other paragraphs of the charge in that the first sentence.did not read, “You are not at liberty to disbelieve as jurors if from the evidence you believe as men,” instead of as it did with the omission of the reference to the evidence.</p> <p>10. Burglary: Instbuction: Definition. The statute defining burglary states, among other things, “If any person shall * * * -willfully, maliciously and forcibly break and enter,” etc. If in an instruction, in which it is purposed to embody a statement of the elements which constitute the crime and necessary to be proved, the word “maliciously” in reference to the breaking and entering is - omitted, it is sufficient if other words, or another word, identical in meaning or expressing the same meaning be used.</p> <p>11. Instructions: Repetitions. It is not. error to refuse to give instructions if their substance is embodied and given in the charge to the jury.</p> <p>12. -: Review. The actions of the trial court in refusing to give certain requested instructions examined and approved.</p> <p>13. Burglary: Evidence. Tlte evidence held sufficient to sustain the verdict.</p>

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

<p>Landlord and Tenant: Attornment to Stranger: Adverse Possession. The conclusions and decision announced on the former hearing in this cause (52 Neb. 110) approved and followed.</p>

<p>1. Bill of Exceptions: Authentication. A bill of exceptions, to be available in the supreme court, must be authenticated by the clerk "of the district court.</p> <p>2. —-: -. A certificate by the clerk of that court merely stating that the original bill was filed in his office on a certain date, 'ie insufficient to identify a document contained in the transcript as being either such original bill or a copy thereof.</p>

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

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

<p>1. Pleading and Proof: Variance. There can be no recovery if there is a material variance between the allegations and the proof. The allegata and probata must agree.</p> <p>2. Trial: Directing Verdict. Where the evidence is uncontradicted, and all reasonable men must draw the same conclusion therefrom, it is not error for the court to direct a verdict in favor of the party entitled thereto under the pleadings and proofs.</p> <p>3. Review: Oral Instructions. Error in giving an oral instruction is not available in this court where no exception was specially taken on that ground in the trial court at the time the instruction was given.</p>

<p>1. Criminal Law: Evidence: Opinion oe Attorney General. A conviction in a criminal case will ordinarily be reversed where the attorney general declines to file a brief on the ground that the evidence is insufficient to sustain the judgment. •</p> <p>2. Homicide: Evidence. The evidence in the case examined, and held not sufficient to support the verdict.</p>

Heard below before Scott, J. The facts are stated in the opinion. The right of appellant under her mortgage is not limited to the chattels described therein, but extends to the proceeds of the property. (Union Stock Yards Bank v. Gillespie, 137 U. S. 411; McLeod v. Evans, 66 Wis. 403; Capital Nat. Bank v. Goldwater Nat. Bank, 49 Neb. 786; Baker v. New York Nat. Exchange Bank, 100 N. Y. 31.) Agency of the bank in closing out the hardware stock was established.

<p>1. Exemption. Under section 521 of the Code of Civil Procedure, a judgment debtor, who is the head of a family and has no homestead — i. e., owns neither lands, town lots, nor houses subject to exemption under the homestead laws of the state — may claim as exempt from forced sale on execution personal property to the value of $500.</p> <p>2. Homestead. The words “subject to exemption as a homestead,” as used in said section 521, do not refer to “houses” alone, but apply to “lands” and “town lots” as well.</p>

<p>1. Mechanic’s Lien: Vendor’s Lien: Priority. The lien of a person who furnishes material for the erection of a house upon land in possession of the vendee under an executory contract of purchase is subordinate to the lien of the vendor who retains the legal title to secure deferred installments of the purchase price, except in cases where the vendor himself promotes the improvement or causes it to be made.</p> <p>• 2. -: Waiver oe Vendor’s Lien. A vendor who retains the legal title to land sold does not, by mere silence and inaction, waive his right to a purchase-money lien in favor of one who furnishes building material to improve the property.</p>

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

<p>1. Contract: Construction: Question eor Court.- When the meaning of a written contract can be ascertained without the aid of extrinsic evidence, its interpretation belongs to the court and not to the jury.</p> <p>2. -: -: --. Contract in suit examined in connection with the undisputed evidence and held to present no reason for committing its interpretation to the jury.</p>

<p>1. Action on Supersedeas Bond: Pleading. The averments of the petition held to sufficiently state a cause of action on a supersedeas bond.</p> <p>2. -- — :-. In an action on a supersedeas bond, held unnecessary to allege the issue and return of an execution nulla hona.</p> <p>3. New Trial: Joint Motion. A motion for a new trial- should be overruled as to all the parties joining therein if it is not available to anv one of them.</p>

<p>1. Insurance: Waiver op Condition: Evidence. The evidence in this case examined, and held to have justified the jury in finding that there was a waiver of a condition precedent with respect to the delivery of a policy, the existence of such condition not having heen communicated to the insured.</p> <p>2. Appearance: Review: Record'. A special appearance must be assumed to have been properly overruled when the affidavit upon which it was founded does not appear in the record in the supreme court.</p> <p>3. Continuance: Sufficiency of Application: Review. An application for a continuance which failed to disclose the names of absent parties whose testimony was desired, and the nature of their testimony, held properly to have been denied.</p>

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

<p>Review: Sufficiency of Evidence. In this case but one question is presented, and that is the sufficiency óf the evidence to sustain the judgment ot the district court. ■ An examination of all the evidence disclosing that this objection is not well taken, said judgment is affirmed.</p>

<p>1. Quieting Title: Revivor oe Action: Rents. In an equitable action by a devisee to quiet title and obtain possession of real property it was sought to recover the rental value of the land which had accrued previous to the revivor of the action in the name of such devisee. Whether or not the devisee under any circumstances would be entitled to such recovery of rent is not determined, because neither put in issue by the pleadings nor argued by counsel.</p> <p>2. Improvements: Quieting Title: Rents. An action of the nature above indicated was pending several years before the death of a 'testator who was the original plaintiff. The devisee, in whose name the action was revived upon the death of the testator, on his petition recovered for rent until the time of the filing of said petition as though the defendant had during his entire possession been the tenant of the devisee. Supported by sufficient evidence in the same case there were findings that the possession of the defendant had been taken a-nd held in good faith and that lasting and valuable improvements had been made during such possession by such defendant under circumstances which justified him in making them. Held, That the district court properly charged the land finally adjudged to belong to plaintiff with the fair value of ■such improvements even though some of said improvements were made after the commencement of the suit by the testator.</p>

The opinion contains a statement of the case. The quitclaim deeds do not work an estoppel because they contained no covenants, and conveyed only the interest of grantors in the premises. {Lavender v. Holmes, 23 Neb. 345; Holbrook v. Debo, 99 111. 372; White v. Bro-caw, 14 O. St. 339; Gibson v. Ghouteau, 39 Mo. 536; Gates v. Hunter, 13 Mo. 365; 7 Am. & Eng. Ency.

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

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

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

<p>Contracts. To establish an express contract there must be shown what amounts to a definite proposal and an unconditional and absolute acceptance thereof.</p>

Ebbob from tlie district court of Boone county. Tried below before Kendall, J. An action by an insane person should be brought by a properly-appointed guardian, and not by a next friend. {Covington v. Neftzger, 30 N. E. Rep. [Ill.]*764; Dorsheimer v. Roorback, 18 N. J. Eq. 438; Nichol v. Thomas, 53 Ind. 42; Tiffany v. Worthington, 65 N. W. Rep. [Ia.] 817; Row v. Roio, 41 N. E. Rep. [O.] 239.)

Error from the district court of Lancaster county. Tried below before Hall, J. The opinion contains a statement of the case. The cause of action arising from the negligence of the railroad company is indivisible. The claim of the insurance company should have been presented in the action by the insured. The insurer cannot maintain a separate action against the railroad company for the amount paid under its policy. (Rocldngham Mutual Fire Ins.

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

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

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

<p>Proceeding's in Equity: Review. A review by petition in error of the proceedings during the trial in the district court of an equity cause cannot be obtained in this court if no motion for a new trial was filed in the trial court; and in a case so presented here, the record will be examined no further than to ascertain whether the pleadings state a cause of action or defense and support the judgment or decree.</p>

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

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

<p>1. Subrogation. “The doctrine of subrogation is not administered by courts of equity as a legal right, but the principle is applied to subserve the -ends of justice and to do equity' in the particular case under consideration. It does not rest on -contract, and no general rule can be laid down which will afford a test in all cases for, its application. Whether the doctrine is applicable to-any particular case depends upon, the peculiar facts .and circumstances of such ease.” South Omaha Nat. Banlc v. Wright, 45 Neb. 23, and Rice v. Winters, 45 Neb. 517, followed.</p> <p>2. -: Parties. The party to whom the debt of another has been paid, the payment of which furnishes the basis of the claim for subrogation, is a proper and necessary party to the action for subrogation.</p> <p>3. -: Mortgages: Attachment. One Bishop, engaged in business, gave a mortgage on his stock in trade and other personal property to D., W. & Co. A., M. & Co., to whom Bishop was indebted, very soon afterward began an action against him in which it procured a writ of attachment to issue and its levy on the stock in trade and personal belongings -of the tradesman. D., W. & Co., predicating its right and title to the property on the mortgage by Bishop to it, commenced an action in a court of Iowa wherein it alleged the conversion of the property by A., M. & Co. ■ The plaintiff recovered a judgment for the value of the property, such value being fixed by the verdict. The judgment was paid by A., M. & Co. One of the grounds for attachment in the suit in this state was the alleged fraudulent transfer or disposal of the property by Bishop, the mortgages to D., W. & Co. furnishing the basis for said allegation. A motion was filed to discharge the attachment, which, on hearing, was overruled, and subsequent to the judgment rendered against it in Iowa, A., M. & Co. prosecuted the suit and attachment in this state to final judgment. After payment of the judgment rendered by the Iowa court, A., M. & Co. instituted this action in the same court in which it had its judgment and order to sell the property under attachment. The object sought in this action was its subrogation to the rights of D., W. & Co. under the mortgages under which the last mentioned company had asserted and been accorded rights in the suit in Iowa. Held, That the subrogation was properly allowable as to the right to subject the property to the payment of the sum which A., M. & Co. had paid to extinguish the Iowa judgment, but not to receive a deficiency judgment against Bishop or enforce payment by him personally of any balance of such amount remaining after the application of the proceeds of the property to the payment thereof.</p>

Original application for a writ of mandamus to compel the auditor of public accounts to register . bonds issued by relator for the purpose of raising funds for an exhibit at the Trans-Mississippi and International Ex-Bosition.

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

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

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

Original application for a writ of mandamus to compel the respondent, as one of the judges of the district coprt of Douglas county, to sign a bill of exceptions.

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

<p>Right to Dismiss Action. A plaintiff has an absolute right to dismiss his action at any time before the final submission of the cause, subject alone to compliance with conditions precedent, such as the payment of costs, etc., as may be imposed by the court.</p>

<p>Eiiroii from tlie district odurt of Dakota county. Tried below before Nonius, J.</p>

<p>1. Alimony: Lien on Homestead: Husband and Wife. A judgment for alimony in favor of a wife, rendered in an action for divorce, is a lien on the family homestead, the title whereof is, in the husband.</p> <p>2. Real Estate: Possession. Actual possession of land is notice to the world of the possessor’s ownership or interest therein.</p> <p>3. Executions: Purchase by Appraiser of Land: Sheriff’s Deed. In an action to quiet title, a sheriff’s deed made in pursuance of an execution sale will not he canceled merely because the purchaser was one of the appraisers of the land for the purpose of sale, neither actual fraud being charged nor offer made to reimburse such purchaser.</p> <p>4. Limitation of Actions: Demurrer. It is ground for demurrer that an action is barred by the statute of limitations only when it affirmatively so appears on the face of the petition.</p>

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

<p>Railroads: Highway-Signals: Injury to Infant: Instructions. In an action- for personal injuries inflicted by a passing locomotive at a railway crossing it is -error to instruct the jury that the question of whether the bell was rung or the whistle sounded is immaterial in case they find that the injured party by reason of her tender age could not understand the meaning of such signals.</p>

<p>1. Transcript of Journal Entry: Review. Where there is expressly excepted from the certificate of a clerk of the district court authenticating a transcript the journal entry of that court on the motion for a new trial, such entry must be treated as though not appearing in the transcript.</p> <p>2. Ruling on Motion for New Trial: Review. On a petition in error in this court alleged errors of the district court committed during the progress of the trial, or in the rendition of its judgment, cannot be considered when in the district court there appears to have been no ruling on the motion for a new trial.</p>

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

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

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

<p>New Trial: Evidence. The evidence on which a petition for a new trial was granted examined and held insufficient.</p>

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

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

<p>Error from tlie district court of Gage county. Tried below before Busi-i, J.</p>

<p>Motions for rehearing of case reported in 52 Neb. 833.</p>

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

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

<p>1. Husband and Wife: Title to Realty: Trusts. A husband and his family resided on a rented farm. The husband worked at Ms trade of plasterer, was an habitual drunkard and squandered his earnings, devoting none of them to the support of his family. The wife and children conducted the farm, she doing the labor of a farm hand. During this time she purchased, on executory contract, a piece of land and made the first payment thereon out of the earnings of her labor. She and her husband then moved on the land purchased. The husband continued to conduct himself, and the wife to labor and manage the new farm, as before, and from her earnings thereon, with his consent, she made the deferred payments on the land’ purchased, when the vendor, by inadvertence or mistake, deeded the land to the husband. Held, (1) That the money earned by the wife was her property; (2) that the land purchased belonged to the wife; (3) that the husband held the legal title to said land in trust for her; (4) that said land was not liable for a debt of the husband contracted before the date of the conveyance to him.</p> <p>2. -: -: —-: Estoppel. Where land is paid for with a wife’s money, but deeded to the husband, he will hold the title in trust for her; and she is not estopped from claiming the land as against her husband’s creditors unless her conduct in the premises induced them to believe that the husband was the actual owner of the land and to extend credit to him on the strength thereof.</p>

<p>1. Evidence: Writings. In order to render written instruments admissible in evidence, their execution or genuineness, unless admitted, must be established by proof, except in cases within statutory exceptions.</p> <p>2. -: -: Exceptions: Assignments oe Error. An exception taken or assignment in error against the admission in evidence of a group of documents, offered together, is not waived by confining the discussion in the briefs to a single document comprised within the group, the objections urged being good against all.</p>

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

<p>Appeal fron#the district court of Douglas county. Heard below béfore Scott, J.</p>

<p>Eiriuent Ecmain: Damage to City Lots: Evidence.</p>

<p>1. Descent and Distribution. Lands of which a person dies seized, and which he has not devised, descend to the heirs, and the title vests in them, subject, however, to the debts of the ancestor.</p> <p>2. Ejectment: Action by Heir. An heir may bring and maintain an action of ejec ment relative to lands of which his ancestor died seized against any and all persons except the administrator of the e.tate and such as have a right or rights thereto derived from the administrator, and this the heir may do during the pendency of the administration proceedings and prior to final settlement or any decree of distribution.</p> <p>3. Adverse Possession'. “To establish title to real property in this state by virtue cf the operation of the statute of limitations there must have been maintained by the party asserting it an actual, continuous, notorious, and adverse possession of the premises under claim of ownership during the full period required by the statute.” (PwoMg v. Learner, 48 Neb. 248; Gatling v. Lane, 17 Neb. 77; Lantry v. Parker, 37 Neb. 353.)</p> <p>4. --: Evidence. No definite or fixed rule can be framed in relation to what shall constitute indicia of idverse possession; such evidences must necessarily vary and be in accord with the conditions existent in the portion of the political division or subdivision in which the properly to which it is claimed applicable is situate in regard to age of settlement, the extent and prevailing manner of cultivation, or use of lands, also the purposes for which' the lands are or may be by nature adapted.</p>

<p>Trial: Opening and Closing. The party to an action upon whom rests the burden of the issues is entitled, on the trial of the cause, to open and close the evidence; also the arguments to the jury. Hickman v. La une, 47 Neb. 177, followed.</p>

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

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

<p>1. Railroad-Crossing: Danger: Notice. A railroad-crossing is a place of clanger, and ail persons to whom negligence may be imputed are bound to take notice of that fact.</p> <p>2----: -: Negligence. A traveler on a street or public highway apprcach'ng a railrcad-crossing thereof for the purpose of using it or going over must exercise ordinary care, or such care as would be exercised by a prudent man under all the facts and circumstances attendant upon and surrounding his approach to and crossing the track.</p> <p>3. Negligence: Question for Jury. If different minds may reasonably draw different conclusions or inferences from the state of facts es'ab’ished by the evidence in a cause, whether such facts show negTgence or contributory negligence is not a question of law for the court but must be submitted to the jury. Omalm 8. li. Go. v. Jjorhncisai, <10 Neb. 37, followed.,</p> <p>4.---: Evidence. The evidence in this case examined, and held not to establish conclusively and as matter of legal imputation eontributoiy negTgence on the part of the plaintiff.</p> <p>5.--:--. Actions of the trial court in giving and in refusing to give instructions in charge to the jury, and to which exceptions were urged, examined, and held not erroneous or not prejudicially so.</p>

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

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

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

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

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

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

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

<p>1. Counties: Allowance oe Claims: Mandamus. One in whose favor a claim has been duly allowed hy a county hoard may, hy mandamus, compel the issuance of a warrant for the payment of such claim.</p> <p>2. -: -: Review. The validity of an order of a county board allowing a claim cannot be raised for the first time in this court in a case brought here by appeal or petition in error.</p> <p>3. Corporation: Existence: Pleading. A denial that the relator “is a corporation duly organized under the laws of the state of New York” does not put in istue the relator’s corporate existence.</p> <p>4. Payment: Evidence. Evidence examined, and held insufficient to sustain respondents’ plea of payment.</p>

Error from the district court of Douglas county. Tried below before Hopewell, J. The opinion contains a statement of the case. Obligors cannot escape liability, because the bond does not run to the county.

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

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

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

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

<p>Intoxicating'Liquors: Evidence oe Unlaweul Possession. In a prosecution for having in his possession certain intoxicating liquors, among which it was charged that there was beer, the defendant introduced evidence tending to show that there was no beer and that the liquid described in the information as beer was a tonic, not intoxicating in its nature. The state offered in evidence a search-warrant issued in an independent proceeding in which it was recited that an information under oath had been filed by a credible resident freeholder, whose name was given, that such freeholder had reason to believe and did believe that the accused had in his pois:ssion beer among other intoxicating liquors, kept for the purioee cf sale and which were being sold in violation of chapter 50, Compiled StaLutes of Nebraska. On this warrant there was a statement in the return that the officer executing the same had, upon search, f„und on the premises of the accused sixty-seven bottles of beer. This warrant and return the court admitted in evidence. Held, That, as the recitations of the warrant and return were with rriavnee to the essence of the ciime for the commission of which the accused was being tried, the admission of the warrant and return as independent evidence was prejudicially erroneous.</p>

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

Heard below before Letton, J. The facts are stated by the commissioner. Purchase of stock and payment in property at more than its real value will not enable a creditor giving credit to the corporation with full knowledge of the facts to charge the stockholder with the difference between the real value of the property and the value at which it was taken.

<p>New Trial: Appeal: Dismissal.</p>

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

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

<p>1. Insurance: Authority oe Agent: Premiums. Whether the agent of an insurance company is invested with authority to waive the payment of the premium in cash and give the insured credit therefor, and whether he did so, are questions of fact.</p> <p>2. -: -: -. It seems that the authority of an insurance agent to waive the payment of the premium in cash and give the insured credit therefor may he inferred from the fact that the agent is authorized to negotiate contracts of insurance, to fill out and deliver insurance policies executed in blank and left with him for that purpose, and to receive and receipt for insurance premiums, and to make settlements from time to time with his principal for premiums collected.</p> <p>3. -: Title to Insured Property: Waiver oe Condition. Where no inquiries are made of an insured as to the character or condition of his title; where he makes no false representation as to the character or condition of his title, relying upon which the insurer is induced to and does insure the property; where the insured has an insurable interest in the property, the insurer accepts and retains the premium and a loss occurs, then the insurer cannot escape liability for such loss because of the fact that the insured at the date of the policy was not invested with an absolute and unincumbered title to the insured property, even though the policy provides that it shall be of no validity unless the title of the insured be an unconditional and unincumbered one, as in such case it will be conclusively presumed against the insurer that it intended to and did insure the interest which the insured had in. the property and waived the provision in the policy providing for its invalidity by reason of the imperfect title of the insured.</p> <p>4. -: Occupancy. Because property is unoccupied at the date of its insurance, the insurer being ignorant thereof, of itself constitutes no defense 'to an action on the policy.</p> <p>5. -: Description: Representations. The fact that an insured building is described in'the policy as a dwelling-house is not a representation of the insured that the house was'then and there occupied.</p> <p>6. -: Insurable Interest: Judicial Sale. One may have an insurable interest in real estate though it has been sold at judicial sale, while such sale remains unconfirmed, as the title is not divested until the confirmation of such sale. Greenlee v. North British £ Mercantile Ins. Go., 71 N W. Rep. [Ia.] 534, and Ilanorer Fire Ins. Go. of New Torio v. Brown, 25 Atl. Rep. [Md.] 589, followed.</p>

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

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

Tried below before Cornish, J. The opinion contains a statement of the case.