Volume 54 — Nebraska Reports

<p>Rehearing of case reported in 52 Neb. 70.</p>

<p>1. Evidence: Pleadings. A party’s own pleading in a cause is not substantive evidence in bis own favor of the facts therein alleged.</p> <p>2. Trespassing Animals: Damages: Instructions. An instruction set out in the opinion held prejudicially erroneous for ambiguity.</p>

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

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

<p>1. Sales: Failure to Deliver Goods: Rescission. If a contract of sale is entire and indivisible, though it may include the delivery to the purchaser of two or more distinct articles at different dates, a failure as to any one on the part of the seller may afford ground for rescission by the purchaser.</p> <p>2. Assignments of Error: Instructions. Errors in regard to giving instructions must be separately assigned in both the motion for a new trial and petition in error. If in gross in either, and the assignment is determined without force as to one of the enumerated instructions, it will be overruled as to all.</p> <p>3. Action on Note for Purchase Price of Harvester: Failure to Deliver Portion oe Machine: Rescission: Verdict eor Defendant. The evidence held sufficient to sustain the verdict.</p>

<p>Vendor and Vendee: Conveyance or Mortgaged Realty Pending Foreclosure: Right or Grantee to Redeem. For land incumbered by mortgage a deed of conveyance was executed by the owner and delivered to a purchaser with the name of the grantee omitted therefrom, in compliance with the request of the latter that the conveyance should be in blank as to the name of the grantee. Afterward an action to foreclose the mortgage was commenced, to which the grantor of the deed was made a party and was duly served with process. The purchaser, subsequent to the service of the process in the foreclosure suit on the grantor in the deed, inserted the name of a third party in the conveyance and delivered it to him. The foreclosure Suit was prosecuted to decree, sale thereunder and confirmation thereof, and there was a later conveyance by the vendee to another party. The person who had received the deed with his name inserted in the blanks thereof brought an action to redeem, predicating his claim solely on the title and ownership derived from the delivery to him of said deed. Held, That ii he acquired the title by the insertion of his name as gx antee in the blanks in the conveyance, and its after-delivery to him, it came to him subject to the full operation and effect of the proceedings in the foreclosure suit, and he could not maintain this action to redeem.</p>

<p>1. Damages: Pleading and Prooe. A recovery may be bad under a . general allegation of damages for all injuries which necessarily follow as results of the act, the subject of complaint. They need not be specially pleaded, and this is applicable to necessarily resulting permanent effects of the injuries.</p> <p>2. Trial: Leading Questions: Review. The extent to which leading questions may be allowed rests in the discretion of the trial court, and the rulings in that respect will not, in the absence of an abuse of discretion, be disturbed by this court. Baum Iron Go. v. Bury, 47 Neb. 21, followed.</p> <p>3. Rulings on Evidence: Review. Alleged errors of the trial court in the admissions of evidence examined, and hold without force.</p>

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

<p>1. Homestead: Descent. The title to lands of which a man dies seized, which he has not devised and which during his life and at the time of his death was the homestead of himself and family, v-ests in the widow for life, and remainder in the heirs, exempt from any liability for the payment of debts existing against either the husband or wife at the time of his death except such as exist or have been created of the kinds and in the manner prescribed in the chapter of the statutes relative to homesteads; and this is true whether she, after the death of the husband, occupies the property as a homestead or not.</p> <p>2. Executors.and Administrators: Homestead. The right of an administrator to possession of the real estate of which his decedent died seized arises from its being subject to payment of debts of the decedent and is not of force relative to a homestead.</p>

<p>1. Election to Vote Municipal Bonds: Petitionees: Married "Women. A married woman wlio holds lands in fee is a “freeholder” within the meaning of the word as used in section 14, chapter 45, of the Compiled Statutes, relative to the signers of a petition to be presented to the proper board praying the calling of an election and submission to’ the vote of the electors of certain designated political subdivisions the question of the issuance of bonds in aid of works of internal improvements, it being therein prescribed that the signers shall be “freeholders.”</p> <p>2. - — ; Appeal: Presumptions. The cause was submitted to the trial court with the stipulation of record that in regard to the required qualification of two of the signers of the petition the parties knew nothing, and if the determination of the issues must, hinge upon whether the two persons were such signers as required by the law, or not, the case should be continued and testimony offered and received on the subject. Held, Tlvait the record must be considered here on appeal as presented, and, in the absence of proof to sustain the allegations of the petition that these two persons were not freeholders, it must be presumed that they were, and they must be so considered in determining as to the number of proper signers of the petition.</p> <p>3. Statutes: Welfare of Public. “While it is within the province of the judiciary to declare invalid acts evidently not designed to subserve public interest, if the subject-matter of legislation be such that there is any doubt of its character, or if by any reasonable construction it can be held to be for the welfare of the public, the will of the legislature should prevail over any mere doubt of the court.” Board of Directors v. Collins, 46 Neb. 411, followed.</p> <p>4. Irrigation: Eminent Domain: Constitutional Law. The use of water for the purpose of irrigation of arid lands is a public use within the import of the constitution; and that this is true, coupled with the further facts that each person within the range of the operation of an irrigation ditch or canal could by payment of the customary rates command the services of the company owning the ditch and thereby obtain the use of water, and that the nature of the business was such as to make it subject to legislative control, warranted the legislature in designating such ditches or canals "works of internal improvement.”</p> <p>5. Constitutional Law: Irrigation: Taxation. The taxation prescribed by statute and necessarily connected with the aid by political subdivisions of the state of a work of internal improvement is not objectionable in that it involves a taking of property for private use or without “due process of law.”</p>

<p>1. Instructions: Reasonable Doubt. ' An instruction in a criminal prosecution is not erroneous which defines a reasonable doubt as being such a doubt as arises from a candid and impartial consideration of all the evidence in the case, and which would cause a reasonable and prudent man to pause and hesitate in the graver transactions of life, and that a juror is satisfied beyond a reasonable doubt if from a consideration of the entire evidence he has an abiding conviction of the truth of the charge.</p> <p>2. -: Non-Direction. Mere non-direction by the trial judge affords'no ground, for the reversal of a criminal cause unless a proper instruction has been tendered and refused.</p> <p>3. Rape: Evidence. To justify a conviction of rape the proof must reach such a degree of certainty as to exclude a reasonable doubt. 4.--:--. A conviction of rape will not"be sustained where the testimony of the prosecutrix as to the principal fact relied upon to sustain the charge is not only uncorroborated, but is so contradictory as to be self-destructive.</p>

<p>1. Criminal Law: Transcript for Review. The transcript in this case shows, with sufficient clearness, that an information was filed against the accused in the court below during the term at which he was required to appear, and that the trial was had upon an amended information presented at a subsequent term of the court.</p> <p>2.-----; Jurisdiction. The absence of jurisdiction of the district court will not be presumed, but-must affirmatively appear from the face of the record.</p> <p>3. -: Copy oe Information. In a prosecution for a felony the accused is entitled, by section 436 of the Criminal Code, to a copy of the amended information, and one day to prepare for trial, but these requirements he may waive.,'</p> <p>4. -: Amended Information: Arraignment. A conviction under an amended information charging a felony will not be sustained where the record does not affirmatively disclose that the accused was arraigned, and that he pleaded before trial.</p> <p>5. Review: Transcript: Entries on Trial Docket. Entries made upon the trial docket of the district court cannot be considered on review for the purpose of ascertaining what were the proceedings in that court.</p> <p>6. Criminal Law: Counts: Sentence. If a single offense is charged in different counts of an information, and there is a conviction on each count, but one sentence can be imposed.</p>

<p>L Trover and Conversion. One who converts the property of another is liable therefor.</p> <p>2. —--: Chattel Mortgages. Every one who aids and assists in the conversion of the chattels of a third person is liable for their value.</p> <p>3. - — :--. A mortgagee of chattels, who is out of possession, and not entitled to possession by his mortgage, cannot maintain an action against a stranger for conversion. .</p> <p>4. -:---: Pleading. In an action by a mortgagee of chattels for conversion of mortgaged property he must, in his petition, 'plead the facts which create his special ownership in the property, and show his right to the possession of the same.</p>

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

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

<p>1. Review: Rulings on Evidence. The exclusion of testimony which does not tend to establish either a cause of action or defense is not ground for reversal.</p> <p>: Assignments oe Error, An assignment in a petition 2, in error of “errors of law occurring at the trial” is insufficient to present for review the rulings of the court below on the admission or exclusion of testimony.</p> <p>3. -: Points Not Argued. Alleged errors not referred to or argued in the biiefs are waived.</p>

<p>Original application for mandamus to compel respondent to register funding bonds of Douglas county.</p>

<p>1. Practice: Erroneous Orders: Laches. When an order has been irregularly obtained against a party it is his duty to bring the matter to the attention of the court before proceeding to a trial of the cause.</p> <p>2. New Trial: Waiver of Error. M. obtained a verdict in her favor, which was set aside without service upon her of notice as required by the rules of the court.' She made no complaint during the term, nor until after there had been another trial and an adverse verdict and judgment rendered against her. Held, That she had waived her right to complain-of the irregularity.</p> <p>3. Judgments: Procedure to Vacate. A party who seeks the vacation of a judgment after the term at which it was rendered must allege and prove that he has a valid cause of action or defense, and to entitle him to relief the court must adjudge that such cause of action or defense is prima facie valid.</p>

Heard below before Keysor, J. The opinion contains a statement of the case. Appellant contends that if the city filled or graded said lots, it must have done so by reason of their condition being a nuisance; that as a condition precedent to the city causing the lots to be filled it must have given him notice to fill or grade them; that it never gave him such notice, and therefore the alleged tax is void.

<p>1. Insurance: Payment oe Premiums: Waiver oe Terms. Stipulations in a contract of life insurance providing for a forfeiture in case of default by the insured in paying premiums at a place and on a day specified are inserted for the benefit of the company and may be waived by it.</p> <p>2. -: -: ■ — --•. Such waiver may be inferred from the acts, declarations, or conduct of the officers or agents of the insurance company charged with the management of its business, and acting within the scope of their authority.</p> <p>3. -: -■: --■. A provision in a policy of life insurance requiring payment of assessments in cash at its office in a distant state is waived by habitually accepting good checks in lieu of cash.</p> <p>4. •--: - — •:----—When an insurance company invites its patrons to use the mails in transmitting premiums and gives express directions in relation thereto, it will warrant an inference that the company intended to accept as payment funds sent to it by mail in time to reach its office in due course, on or before the day such premium would fall due.</p>

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

<p>1. Appeal: Pleading. When .there is filed in the supreme court on •appeal no pleading but a supplemental! petition, and the decree discloses the fact that it was rendered upon consideration of a petition and supplemental petition, the decree of the district court will be affirmed.</p> <p>2.-: -. A second appeal to the supreme court is SO' far independent of a former appeal that pleadings filed in the original appeal cannot be referred to in that subsequently taken, for the purpose of ascertaining what issues had been originally joined and presumably were tried, when there was entered the decree sought to be reversed.</p>

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

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

<p>1. Witnesses: Gross-Examination. The cross-examination of a witness should ordinarily be confined to matters concerning which he has testified in his direct examination.</p> <p>2. Telegraph Companies: Negi.igexce. Where a party in good faith liad endeavored to avoid injury attributable to the negligence of a common carrier, it cannot escape liability by showing that such endeavors might have been more judicious.</p> <p>3. -:--. Evidence examined, and held to justify a peremptory instruction for plaintiff.</p>

<p>Publication of City Ordinance. In this case the sufficiency of the publication of an ordinance of South Omaha is presented under the same conditions as were described in Union P. R. Oo. v. Montgomery, 49 Neb. 429, and the ruling in that case is accordingly followed.</p>

<p>Action for Rent: Judgment, eob Defendant. The evidence in this case examined, and found not sufficient to sustain the findings of the district court.</p>

<p>1. Review: Evidence. The evidence examined, and held to sustain the finding of the jury.</p> <p>2. Principal and. Agent: Evidence. The ruling of the district court in admitting in evidence a receipt for money, given to the defendant in error by a witness and director of plaintiff in error, which tended to contradict the evidence of the witness that in his dealings with defendant in error he was acting on his own hehalf and not as plaintiff's agent, reviewed and held not erroneous.</p>

Error from the district court of Sherman county. Tried below before Holcomb, J. A special limitation contained in a contract is valid and binding no matter what the general law of limitation may be. (Hudson v. Bishop, 35 Fed. Rep. 820; O’Laughlin v. TJmon Central Life Ins. Co., 3 McCrary [U. S.] 543; Riddlesbarger v. Hartford Ins. Co., 7 Wall. [U. S.] 386; Davidson v. Phoenix Ins. Co., 4 Sawyer [U. S.] 594; Thompson v. Phoenix Ins. Co., 25 Fed.

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

<p>1. Master and Servant: Defective Appliances: Injury to Servant: Pleading. In a suit for damages by a station agent of a railroad company against it for injuries he had sustained while attempting to set a defective brake on one of its oars the petition does not fail to state a cause of action because it does not aver that the railroad company knew of the defective condition of the brake, or that the' brake had been out of repair for such a length of time that the railroad company, by the exercise of ordinary care, could have discovered its defective condition.</p> <p>2. -: -: -: Knowledge of Defects. That the brake . became out of repair a short time before the accident, and that the railroad company had no knowledge of its defective condition and could not by the exercise of ordinary care have discovered it before the accident, are matters of defense.</p> <p>3.---: -: -. It is the duty of a master to furnish the sen ant tools and appliances reasonably safe and fit for the purposes for which they are designed; and if the master neglects to do this, and the servant is injured without fault on his part, the defect in the instrument or appliance not being obvious, the master is liable.</p> <p>i. -: -. It was the duty of a station agent to set the brakes on cars left at his station, but it was not his duty to inspect the brakes on such cars, nor to repair them if he discovered them out of order. If eld, That the agent had the right to presume that the car brake was in proper condition and reasonably fit for the purposes for which it was designed.</p> <p>5. --: Injury to Servant: Negligence: Liability oe Master. It is not the law, except where made so by statute, that a master is liable to a servant for an injury which the latter has received through the negligence of a fellow-servant.</p> <p>6. -: -: -: -. If a car inspector, whose duty it is to keep the brakes in repair, neglects that duty, and his co-servant, for instance a station agent, is injured by that neglect, the railway company is liable for such 'injury; but the reason is that the relation existing between the inspector and station agent is that of vice-principal and servant, the negligence of the inspector being the negligence of the master.</p> <p>7. -: Fellow-Servants. A station agent, whose duty it is to set brakes on cars left at his station, but who is not charged with the duty of inspecting or repairing the brakes, is not a fellow-servant of his co-servant, who is a ear inspector and charged with the duty of inspecting and repairing the brakes.</p> <p>8. Attorneys. The rights and duties of counsel employed to conduct litigation considered and stated in -the opinion.</p> <p>9. Misconduct of Attorney: Review. A litigant, to take advantage of alleged misconduct of opposing counsel, must call the attention of the trial court to such misconduct at the time it occurs, ask the trial court for protection therefrom, preserve in a bill of exceptions the alleged misconduct, .with the ruling of the trial court and the exceptions thereto, and present the record of what occurred and the rulings of the trial court as an assignment of error in the proceeding brought here.</p> <p>10. -: -. This court in an error proceeding does not review the conduct of counsel in the case, but reviews the rulings, orders, and judgment of the district court; and if it did not make or refuse to make an order, in reference to the conduct of counsel, this court cannot make one.</p> <p>11. Instructions: Harmless Error. The charge of the court reviewed, and held erroneous, hut not prejudicial.</p>

<p>1. Judges: Interest in Cakes. A judge who-presided at the trial of an action and rendered judgment therein is not, from that fact, disqualified by section 37, chapter 19, Compiled Statutes, to hear another suit brought to vacate the judgment in the former one.</p> <p>2. -: ---. A judge, to be “interested” within the meaning of said section and therefore disqualified, must be pecuniarily interested, o-r his interest in the litigation must be such that he will gain or lose something by the result.</p> <p>3. Witnesses: Exclusion. The practice of causing unexamined witnesses, except those called as.experts, to be sequestered, so that they may not hear the testimony of the witness being" examined, is a good one, as it. tends to elicit the truth and promote the ends of justice.</p> <p>4. -: -. But whether such witnesses shall be sequestered, in any case, is a matter resting in the discretion of the trial court, and, in the absence of a showing that the court abused its discretion to the prejudice of the complaining party, its action in the premises will not he disturbed.'</p> <p>5. Communication to Jury. Evidence examined, and held to sustain the finding of the district court that no improper communication had been made to the jury, .while deliberating on their Verdict in the first action, by the officer having them in charge.</p>

Heard below before Fbkguson, J. The opinion contains a statement of the case. Where service by publication has been attempted to be made upon a resident defendant, founded upon a false affidavit of his non-residence, such service does not give jurisdiction over that defendant, and its validity can be inquired into in a direct proceeding between the parties to the judgment founded thereon. (.Kitchen v. Crawford, 13 Tex. 516; Bnowden v. Bnowden, 1 Bland.

<p>Mandamus: Issues: Title to Oeeice. In an application for a writ of mandamus the court will not try the title or right of possession to real or personal property, and by allowing the writ make it subserve the purpose of a writ of ejectment or replevin.</p>

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

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

<p>1. Mortgages: Delivery. It cannot be inferred that a mortgage, although left in the custody of the mortgagee, was delivered as to one of two joint mortgagors upon the signing and acknowledgment hy him, when it was the manifest intention of the parties that it should not take effect until execution by the other mortgagor.</p> <p>3. -: Judgments: Priority. The general lien of a deficiency judgment rendered not hy confession and at a term subsequent to the commencement of the foreclosure suit in which such judgment was rendered is superior to a mortgage or conveyance of the debtor’s land executed after the commencement of that term, but before the actual rendition of the judgment.</p> <p>3. -: Former Liens: Subrogation. The mere fact that with the proceeds of a later mortgage a prior one was paid, for the purpose of removing the lien thereof, affords no ground for subrogating the junior mortgagee to the rights of the former mortgagee upon its being discovered that a lien had arisen intermediate between the two mortgages. 'Bohn Bash é Door Go. v. Case, 42 Neb. 281, followed.</p>

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

<p>School Districts: Appeal prom Order op County Superintendent. An appeal will not lie from the order of a county superintendent changing the boundaries of school districts or creating new districts. The method of reviewing such proceedings is by petition in error.</p>

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

<p>1. Larceny by Bailee. In a prosecuitionv for the statutory crime of larceny by a bailee tlie gravamen of tbe charge is the felonious conversion, and tbe intent may be shown to have been entertained • as of the time of the reception of the possession of the property or to have arisen during the continuance of such possession.</p> <p>2. Criminal Law: Burden oe Prooe. The burden of proof in a eriminal action does not shift to the defendant but rests with and on the state.</p> <p>3.--: Instructions. A portion of a statement contained in an instruction criticised, but the entire instruction held- not open to the objection urged against it.</p> <p>4. -: Evidence. In the trial of a criminal cause the general rule operates the exclusion of evidence of the commitment by the accused of a crime or crimes separate and distinct from that on a charge of which he is being tried. To this rule there are exceptions, but in the case at bar reasons did not exist for the departure from the general doctrine.</p>

<p>1. Review: Foreclosure oe Mortgage: Computation. Questions of computation or elements of findings of fact or law on which a decree of foreclosure of a real estate mortgage, a mechanic’s lien, or a contract of sale of real estate is based, properly presentable in an appeal from the decree, will not be examined in'an appeal from the order confirming a sale, under the decree, of the property involved.</p> <p>2. Vacating Judgment. The power of a district court to vacate or modify its own judgments or final orders after the term at which 'they were rendered or made is limited to the grounds enumerated in section 602 of the Code of Civil Procedure. Barnes v. Hale, 44 Neb. 355, followed.</p>

<p>Error from flie district court of Boone county. Tried below before Ti-iomrson, J.</p>

<p>1. Criminal Law: Altbt. “Alibi,” as employed to express the defense . of the accused person in a criminal action, means the claim of the party charged of presence at the time the crime is pleaded to have been committed at a place other than the one alleged of the crime.</p> <p>2. -:---: Instructions. The distance of the place where a party who is charged claims to have been at the time from the alleged location of the commitment of a crime, while necessarily elemental of the different places is not the controlling fact or element; and it is not proper to instruct a jury that in a defense of alibi it must appear that the distance was so great as to preclude the possibility that the accused could have been at the stated scene of the crime charged.</p> <p>3.--:---:---. In a criminal case the burden of proof is not upon the person on trial to establish an alibi, and an instruction by which a jury is informed that it is is erroneous.</p> <p>4.--:---: Evidence. Where the defense in a criminal action is an alibi, it is sufficient to call for a verdict of acquittal if the jury, from a consideration of all the evidence, have a reasonable doubt of the presence of the accused at the place and time of the alleged crime, whether such doubt be from lack of proof on the part of the state, or from the evidence adduced in behalf of the party charged.</p>

<p>Appeal from the district court of Douglas county. Heard below before Scott, J.</p> <p>' References: Connecticut Mutual Life Ins. Go. v. Stinson, 62 111. App. 319; 2 Wait, Actions & Defenses 250; Bishop, Contracts sec. 1189; Quimby v.fWood, 35 Atl. Rep. [R. I.] 149; Martin v. Richardson, 68 N. Car. 255; Connecticut M‘U.tual Life Ins. Go. v. Butte, 45 Mich. 113; Jacio v. Davis, 29 Ga. 219; Smith v. Rogers, 14 Ind. 224; Bush v. Lathrop, 22 N. Y. 535; Ely v. McNight, 30 How. [N. Y.] 97; Timms v. Shannon, 19 Md, 296; Cutis v. Guild, 57 N. Y. 229; Richardson v. Wood-ruff, 20 Neb. 132; Johnson v. Payne,.11 Neb. 269; Young v. Brand, 15 Neb. 601; McCreery v. Schaffer, 26 Neb. 173.</p> <p>References: Clippinger v. Fuller, 10 Kan. 377; State v. Winn, 19 Wis. 323; Ym Shaaclo v. Robbins, 36 la. 201; Huston- v. Marloley, 49 la. 162; Martin v. Ragsdale, 49 la. 589; Jefferson Land Co. v. Grace, 57 Ark. 423; Far gasón v. Edrington, 49 Ark. 107; lÁvingston v. Wright, 88 Ga. 33; Willard v. Ames, 130 Ind. 351; Hagaman v. Commissioners of Cloud County, 19 Kan. 394; Griswold v. Wilson, 36 la. 156; Murray v. Lylburn, 2 Johns. Ch. [N. Y.] 441; lÁvingston v. Dean, 2 Johns. Oh. [N. Yi] 479; Da/vis v. Barr, 9 S, & R. [Pa.] 137; Mullison’s Estate, 68 Pa. St. 212; Bloomer v. Henderson, 8 Mich. 395; Croft v. Bunsfer, 9 Wis. 457; Bush v. Lathrop, 22 N. Y. 535; Moore v. Metropolitan Nat. Bank, 55 N. Y. 41.</p>

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

<p>1. Bill of Exceptions: Objections: Laches: Review. Objection to a bill of exceptions because it was not presented for examination and amendment in the statutory period, made for the first time in the appellate court nearly two years after filing transcript, and after service of briefs upon the merits by the party seeking the reversal, comes too late.</p> <p>2. Note: Possession: Indorsement. Possession of a negotiable note, duly indorsed by the payee, creates a presumption of title thereto in the holder.</p> <p>3. -: Consideration. The note sued on was executed upon a sufficient consideration.</p>

<p>1. Statutes: Amendment: Title oe Bill. Where the title to a bill is to amend a designated section of a law, no amendment is permissible which is not germane to the subject-matter of the particular original section proposed to'be changed.</p> <p>2. --; Invalid Portions. When the invalid part of an act was the consideration or inducement. for- the passage of the residue, the valid and invalid portions will fall together.</p> <p>3. ---: Amendments: Fire and Police Commissioners. Section 31, chapter 14, Laws 1897, purporting to amend section 91, article 1, chapter 13a, Compiled Statutes 1895, contravenes section 11, article 3, of the constitution, since said amended section contains new matter of legislation not germane to the original.</p> <p>4. -: Invalid Portions: Constitutional Law. Said section 31 of chapter 14 was the motive inducement to the passage of sections 6 and 7 of the same chapter purporting to amend sections 13 and 14, article 1, chapter 13a, Compiled Statutes 1895, and the unconstitutional'ity of said section 31 invalidates said sections 6 and 7, leaving the original sections in full force and effect.</p>

<p>1. Dormant Judgment: Lien. A dormant judgment is not a lien upon the lands of the judgment debtor.</p> <p>2. Revived Judgment: Lien. A judgment revived is a lien from the date of the order of revivor.</p> <p>3. Judgments: Homestead. The homestead law in force when the debt was created is applicable to proceedings to enforce the judgment rendered thereon.</p> <p>4. -: -. Under the homestead law of 1867 a judgment is a lien on the homestead, but such lien cannot be enforced by execution so long as the premises are owned and occupied by the judgment debtor.</p> <p>B. -: -. The existing homestead act exempts from forced sale upon execution or attachment a homestead not exceeding in value $2,000, and a judgment while the premises are impressed with the homestead character is not a lien thereon, even after their sale and abandonment by the debtor.</p> <p>6. -: -. Under the present homestead law a judgment is a lien merely on the debtor’s, interest in lands occupied as a homestead in -excess of $2,000.</p> <p>7. Marshalling Liens. In marshalling the liens herein judgments should be given priority according to the date of the respective liens.</p>

<p>1. Proceeding in Error: Eeeect oe Dismissal. The dismissal of a petition in error from an appellate court, without an examination of the merits of the assignments, operates as an affirmance of the judgment sought to be reviewed. Dmitermcm v. Storey, 40 Neb. 447, followed.</p> <p>2. Supersedeas Bond: Liability oe Sureties. The death of the principal in a supersedeas bond, while the cause is pending in the appellate court, does not release the surety from liability, nor is he discharged by the failure to have the action revived.</p> <p>3. Principal and Surety: Forbearance by Creditor. Mere forbearance by a creditor does not release sureties, although, by lapse of time, the remedy is lost against the principal. Eiolchojf v. Eilcenhary, 52 Neb. 332, followed.</p> <p>4. -. The liability of a surety in a Supersedeas bond is not affected by the failure to present a claim against the estate of his principal.</p> <p>5. Erroneous Admissions of Evidence: Harmless Error. The admission of improper evidence, in a case tried without the assistance of a jury, is not of itself a ground for reversal.</p>

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

<p>1. Judicial Sales: Officers. Judicial sales must be conducted by the sheriff or other person authorized by the court.</p> <p>: -• One who is designated in a decree of foreclosure as a special master commissioner to make a sale of the mortgaged premises cannot lawfully delegate his authority to another.</p> <p>-: CoKi'insrATioN. It is the duty of the district court to confirm a judicial sale of mortgaged premises only upon being satisfied that the sale has been made in conformity with law.</p> <p>--: -. When the records of the court conclusively show that the sale was made by an unauthorized person the court may set such sale aside on its own motion; and this it may do although the officer’s return does not disclose the irregularity and is not directly assailed.</p>

<p>Petition to Foreclose Mechanic's Lien. In an action brought to foreclose a mechanic’s lien the petition alleged that the materials were sold and delivered to be used in the erection of a building, but did not charge that they., were actually so used. It was further alleged that during the time the materials were being delivered the purchaser of the same sold the premises to his co-defendant, who completed the building, using a small portion of the materials for that purpose. Reid, That the petition states a cause of action against both defendants.</p>

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

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

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

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

<p>Master and Servant: Injury to Servant: Contributory Negligence: Evidence. The evidence in this case examined, and held to disclose such contributory negligence on the part of plaintiff that a verdict and judgment in his favor cannot be sustained.</p>

<p>Action on Note: Answer: Counter-Claim. In an action for judgment on certain promissory notes the defendant answered that the notes had been given for a combined reaper and binder, in place of which, if it did not work to defendant's satisfaction, plaintiff had agreed to furnish a new machine. Held, That proof by defendant that the machine had been, made to work to his satisfaction at one time, but that afterwards it had failed to work well, did not' entitle the defendant, under the averments of his answer, to establish a counter-claim for damages and thus cancel the notes given by him.</p>

<p>1. County Drainage: Funds. The provisions of chapter 89, article 1, Compiled Statutes, examined, and held to require the formation of a special ditch fund, which alone is available for payments for improvements made entirely within a single county, under the provisions of said article, and that for the purpose of making such payments moneys can only be obtained from the county general fund by borrowing as provided by section 26 of said- article. Ragan, C., dissenting.</p> <p>2, --: -: Mandamus. By mandamus a board of oounity commissioners cannot be compelled to provide, through a use of the county general fund, for the payment of a warrant which, upon its face, requires that payment thereof, when made, shall he charged to a certain designated ditch fund.</p>

Heard below before Keysor, J. The opinion contains a statement of the case. The district conrt has control of its own judgments during the term, but this control ends with the term. Thereafter the power to interfere in any manner with a judgment entered must be exercised within the limits prescribed by statute and governed by fixed principles of law.

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

<p>1. Master and Servant: Negligence -oe Employer: Evidence. Evidence examined, and held to sustain the findings of the jury that the negligence of the plaintiff in error was the proximate cause of the injury received by the defendant in error, and that the latter’s contributory negligence was not the cause of his injury.</p> <p>2. Evidence: Declarations. A declaration or admission, to be competent evidence as res yestm, must be made at such time and under such circumstances as to raise the presumption that it is the unpremeditated and spontaneous explanation of the matter about which made.</p> <p>8. Railroad Companies: Highway-Signals: Negligence: Instructions. An instruction of the district" court examined and held not erroneous.</p> <p>4. -: Evidence op Negligence. Irrespective of a statute on the subject, the starting or running of a switch engine in a switch yard, filled with a network of tracks upon which cars are constantly moving, and in which yardmen are at work, without the ringing of a bell or the blowing of a whistle, is evidence of negligence.</p> <p>5. -•: Action por Personal Injuries: Fellow-Servants. In a suit against a railway company by an employé thereof for damages for an injury sustained through the negligence of a co-employé a defense, that the two employes were fellow-servants, must he presented to and passed upon by the district court either by a pleading, instruction,’or in some other .manner, or it cannpt be considered b'y this court.</p>

<p>Error from the district court of Sarpy county. Tided bélow before Ambrose, J.</p>

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

<p>1. Action on Note: Petition. A petition in a suit upon a promissory note, made a part of the petition, which alleges that the defendant executed and delivered the note to the plaintiff, that such note is wholly due and payable, and that the defendant wholly neglects to pay the same, or any part thereof, states a cause of action.</p> <p>2.-: -. It is not essential to such a petition that it negative the payment of the note by a stranger thereto.</p> <p>3. Construction of Pleadings. The allegations of every pleading are to be liberally construed. (C'ode of Civil Procedure, sec. 121.)</p> <p>4. Parties in Appellate Court: Pleading. The fact that the parties made plaintiffs in the district court are different from those named in the summons issued by the justice of the peace affords no reason for striking off the petition filed in the district court.</p> <p>5. Pleading and Proof. Every material allegation of a petition not denied by answer, except allegations of value or amount of damage, stands confessed by the defendant and need not be proved by the plaintiff. (Code of Civil Procedure, sec. 134.)</p>

<p>Eititoit from tlie district court of Buffalo county. Tried below before Sinclair, J.</p>

<p>1. Equity Jurisdiction. The test of equity jurisdiction is the absence of an adequate remedy at-law; but an adequate remedy at law is one that is as practicable and efficient to the ends of justice and its prompt administration as the remedy in equity.</p> <p>2. -: Fraudulent Conveyances: Proceeds: Injunction. Evidence examined, and held to sustain the findings of the district court.</p>

<p>1. Sales: Place oe Delivery. Where delivery of property sold is to take place is to bo determined by the contract between the vendor and vendee.</p> <p>2.----: -. If ihe contract between the parties expressly provides that delivery shall be made at a certain place, then the vendor’s title to the property is not divested until delivery is so made.</p> <p>3. -: Delivery to Carrier. Where the contract between a vendor and vendee is silent upon the subject of the place of delivery, then the delivery of the property by the vendor to a carrier for transportation, consigned to the vendee, divests the vendor’s title to the property, and the vendee’s title, from the moment of such delivery to the carrier, attaches.</p> <p>4.-: -. In such a case the carrier is, in contemplation of law, tihe bailee of the person to whom, and not by whom, the goods . are consigned.</p> <p>5.--:---: Bill of Lading. Where a vendor of goods delivers them to a carrier for transit to his vendee, and causes the goods to be consigned in the bill of lading to himself, his agent, or his order, the presumption arises that he thereby intended to retain t'he title in himself to the goods. Per Ragan, C.</p> <p>6. -: -:--. Where a vendor of goods delivers them to a carrier for transit and causes his vendee to be named in the bill of lading as the consignee of the goods, the presumption arises that the vendor by that act intended the title to the goods to vest, in the vendee on their delivery to the carrier for shipment. Per Ragan, C.</p> <p>7. -: -: Title. The prepayment of freight by a vendor on goods sold and shipped to his vendee is prima facie evidence of an intention on the part of the vendor to retain the title to the goods while in transit. Per Ragan, C.</p> <p>8.-: Construction of Contract: Delivery to Carrier. The contract between a vendor and vendee set out in the opinion construed, and held that the delivery of the property sold took place at the place of its shipment and that the title to the property vested in the vendee on its delivery by the vendor to the carrier for transit to the vendee. Per Ragan, C.</p> <p>9. -■ — : Stoppage in Transitu. In order that a vendor of goods may exercise the right of stoppage in transitu it is essential that ■the goods ait the time be in transit from such vendor to his immediate vendee. Per Ragan, C.</p> <p>10.--: -. D. of Omaha ordered a bill of lumber of S. of Dallas, Texas. S. not having the lumber in stock, sent the order to N. at Waldo, Arkansas, requesting him to ship the lumber to D. at Omaha on account of S. and send him the invoice and bill of lading. This was done. While the lumber was in transit S. failed and N. notified the carrier in possession not to deliver the lumber. The carrier delivered to D., the consignee, and N. sued the carrier for conversion. Held, (1) ■ That the transaction amounted to a sale and delivery by N. to S. at Waldo; (2) a resale and delivery by S. at Waldo to D.; (3) that the lumber, when it left Waldo, was not in transit from N. to S., but from S. to D.; (4) that N. was not D.’s vendor, but consignor merely, and could not exercise the right of stoppage m transitu. Per Ragan, C.</p>

<p>Mortgage: Payment: Release: Assignment oe Coupons: Action by Assignee. A purchaser of land' Incumbered by a mortgage showing on its face that it was given to secure a bond with negotiable coupons attached representing the interest installments, paid to the holder of the bond the amount thereof, took, from him a release of the mortgage and paid to his vendor the remainder of the purchase price. Some of the interest coupons had been assigned to a third person and were overdue and unpaid. Held, That the holder of the interest coupons might maintain an action to foreclose the mortgage for default in their payment.</p>

<p>Principal and Agent: Construction of Contract: Liability of Agent for Purchase Price of Property Sold. A contract between a harvesting machine company and its agents for the sale of its machines on ciommissi'on provided that the agents should settle for all machines sold either by cash or by note at the time of their delivery, and if the agents should deliver any machine for use. in the field or permit its use before it should be fully paid for by.cash or note, the agents should be liable for its price. It was also provided that all motes should be made payable to the order of the company and that ail moneys or notes should be received as its agents and remitted to it. A form of contract where-under the machines were sold provided that if after one day’s trial they did not work, time should be allowed to send a person to put them in order. If they still did not work well, they might be returned and the purchase money would he refunded. Held, That the trial contemplated by the sales contract was to be after the machine had been paid for or notes given for the purchase money, and that the agents were liable for the price of machines delivered for such trials without first taking the money or notes.</p>

<p>Note: Action bt Firm: Prooe oe Partnership. K. and others sued on a promissory note, alleging that they were partners as K. Bros., and that the note had been by the payee indorsed 'and delivered to them. The answer denied, among other things, tlhe • indorse- • ment to plaintiffs and the partnership alleged. The proof showed a general indorsement, and that the note had by such indorsement been transferred to the firm of K. Bros., from whom plaintiffs’ attorney had received it. Eeld, That, under this state of the issues and proof, the issue as to plaintiffs’ constituting the firm owning the note became material, and that in the absence of proof of the partnership they could not recover.</p>

Heard below before Hopewell and Ferguson, JJ. The opinion contains a statement of the case. The undisputed testimony shows that the block of ground in controversy had been dedicated to the public by a common-law dedication for the purposes of a public square, and that there never has been a dedication, statutory or otherwise, of such property as a public park. The legislature’s© far represents the public that it may at any time change or abolish the original use.

<p>1. judgment: Repeal or Statute: Creditors’ Bill. A judgment against stockholders for a liability arising under section 136, chapter 11, General Statutes 1873, rendered after the repeal of that statute, is erroneous merely and not void; therefore, the repeal of the statute before judgment rendered is no defense to a creditors’ bill to enforce the judgment.</p> <p>2. Fraudulent Conveyance: Intent. The question of fraudulent intent when a conveyance is assailed on the ground that it is void as against creditors of the grantor, is one of fact.</p> <p>3. Trial: Withdrawal oe Rest: Mortgages. There was no abuse of discretion in refusing plaintiffs leave to withdraw their rest, when the court announced that it would find a deed absolute in form to be a mortgage and valid as such, when the offer of proof made by plaintiffs was not of further evidence of fraudulent intent but only of the amount due under the mortgage, for the purpose of fixing the extent of its lien; and When the court reserved the case for such an accounting and the plaintiff then had an opportunity to make such proof.</p> <p>4. Mortgages: Future Advances: Judgments. A mortgage to secure future advances was made in the form of a deed absolute. No obligation rested on the mortgagee to make any advances. Creditors of the mortgagor recovered judgments after the mortgage was recorded, and, after causing executions to be levied on the land mortgaged, brought a creditors’ bill to subject it to the payment of their judgments. Held, That the mortgage was prior to their claims for all sums advanced before the mortgagee had knowledge thereof, but subject to their claims as to sums advanced after the mortgagee acquired knowledge of their rights.</p> <p>5. -: -: Executions: Creditors’ Bill. A deed absolute in form conveying the legal title, although intended as a mortgage to secure future advances, and the lien of a judgment not attaching to an equitable estate, the liens of other creditors of the grantor did not attach until the levy of execution at the earliest; and in the absence of evidence that advances were made by tbe mortgagee between the levy, and tbe commencement of a creditor’s suit to subject tbe land to tbe payment of tbe judgments, tbe latter da/te was properly taken 'as marking the time after wbicb advances on tbe mortgage were subordinate to tbe claims of sucb other creditors.</p> <p>6.-: -: -. Whether tbe levy of an execution on land so conveyed charged the mortgagee with notice of tbe judgment, quaere.</p>

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

<p>Review: Conflicting Evidence. If the- evidence is conflicting, and tliere is sufficient thereof in support of the finding and. decree of. the trial court, they will not be reversed.</p>

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

<p>1. Instructions: Evidence. If a fact is established by the evidence and unoontroverted, it is not reversible error for a trial court to so state or treat it in its instructions to a jury.</p> <p>2. Review: Conflicting Evidence. The verdict of a jury upon conflicting evidence will not be disturbed if there is sufficient evidence in support thereof.</p> <p>3. Bastardy: Amount of Judgment. The amount which a party adjudged guilty in a prosecution for bastardy shall be ordered or adjudged to pay is to some extent within the discretion of the trial court, and its judgment in such matter, will not in error proceedings be determined excessive unless there is apparent manifest abuse of discretion. (Olarlc v. Garey, 41 Neb. 780.)</p>

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

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

<p>Review: Unauthenticated Transcript. A petition in error will be dismissed from this court if no transcript of the record in the trial court, authenticated by tihie certificate of the clerk of such court, is filed in this court.</p>

<p>1. Appeal Bond: Judgment Against Sureties. Upon, tbe rendition of a judgment against appellant in tbe district court, that court has no such jurisdiction of the person of the surety in the appeal undertaking that it may render the same judgment against him that it may against the appellant. Selby v. McQvdllan, 45 Neb. 512, followed.</p> <p>2. Bailment: Lien oe Bailee eor Services. By operation of the common law, in the absence of any specific agreement, every person who has bestowed labor and skill on a chattel bailed to him for the purpose, and has thereby increased its value, has a lien on such ehaAtel and may retain it until paid his reasonable charges for his services.</p> <p>3. -:-. Such rule of the common law is in force in this state.</p> <p>4. ---: -: Statutory Liens. The common-law lien to which we have just referred may, by force of special facts or circumstances, override or be superior to prior contractual or statutory-liens.</p> <p>5. Chattel Mortgages: Title. In this state the title to mortgaged chattels remains in the mortgagor until foreclosure of the mortgage.</p> <p>6. -: Lien oe Bailee eoe Repairs: Priority. A physician gave a mortgage on a buggy of which he retained possession and used it in his business. It was of the recitals of the mortgage that he should mot so negligently or improperly use or care for the property as to subject it to probable loss or material depreciation in value, and the mortgagee had knowledge that the buggy at times needed repairing; and had seen it at one time left at the shop to be repaired. The mortgagor, without the knowledge of the mortgagee, left the buggy with a carriage company for needed repairs. The company-repaired the buggy and retained possession thereof to enforce a claimed lien for, or the payment of its reasonable charges for, such repairing. The mortgagee instituted an action of replevin against the carriage company to obtain possession of the buggy, asserting right thereto under and by virtue of his mortgage lien. Held, That the mortgage lien was subordinate to the common-law lien, since the recitals of the mortgage and the facts and circumstances disclosed that the mortgagor had at least implied authority from the mortgagee to have the repairs made.</p>

Error, from the district court of Platte county. Tried below béfore Marshall, J. The opinion contains a statement of tbe case. References: Buckingham v. Roar, 45 Neb. 244;- May v. May, 9 Neb. 16; Brown v. Brotan-, 22 Neb. 703; Greene v.' Greene, 42 Neb. 640; Sldnner v. Sld-nner, 38 Neb. 756; Schultz v. Culbertson, 1 N. W. Rep. [Wis.] 21; Brower v. Callender, 105 111., 88; Bodine v. Morgan, 370N. J. Eq. 426.

<p>1. Process: "Witnesses: Exemption erom Service. A person is privileged from Cb.e service of a summons in an action in wliicli the venue is laid in a county other than that of his residence, while necessarily and in good faith within such county for the purpose of testifying as a witness in a cause.</p> <p>2. -: -: -: Judgment. A judgment rendered on such service of process is not void,"but merely erroneous, subject to be reversed in an appropriate appellate proceeding.</p> <p>3. Jurisdiction: Objections. Objections to jurisdiction of the person, not appearing on the face of the record, may be raised by answer, and the prosecution of an appeal or error is not a waiver of such jurisdictional defense.</p> <p>4. Judgment: Injunction. A court of equity will not enjoin the enforcement of a judgment of a justice of the peace where it appears that a plain and adequate remedy existed at law.</p>

Error from the district court of Douglas county. Tried below before Keysor, J. The opinion contains a statement of the case. In arguing the point that defendant ivas not privileged from service of process at the time the summons was served upon him, reference was made to the following cases: Palmer v. Rowan, 21 Neb., 452; Clark v. Grant, 2 Wend. [N. Y.] 257; Baldwin v. Emerson, 15 At.1.

<p>Process: Witness: Non-Resident. A party to a suit, or a witness at the trial, who is a non-resident of this state, is privileged from the service of summons in this state not only while necessarily and in good faith in attendance upon the court, but for a reasonable time after the hearing, to prepare for his departure and return to his home.</p>

<p>1. Highways: Decision of County Board: Review. The propriety or necessity of opening and working a section-line road is committed to the discretion of the county hoard, and its decision is not subject to review.</p> <p>2. Eminent Domain.: Constitutional Law. Property is not taken for a public use without due process of law when an opportunity is afforded the owner to 'have his damages ascertained by adequate and appropriate judicial proceedings, and provision is made for the payment of the amount thereof prior to the time the property is taken.</p> <p>3. Statutes: Titles: Section-Line Roads. Section 46, chapter 78, Compiled Statutes, is embraced within the title of the act of which it forms a part, and is valid, although said section may operate incidentally to modify other laws.</p> <p>4. Highways: Damages: Instructions. Where land has been appropriated for a public highway, an instruction which directs the jury to allow the owner full compensation for land actually taken and such damages to the residue of the tract as are equivalent to the diminution of the value thereof is not unfavorable to him.</p> <p>5. Instructions: Repetitions. A cause will not be reversed for the refusal of a proper instruction where an instruction fully as favorable to the complaining party covering the same point has been given by the court on its own motion.</p> <p>6. Highways: Damages: Conflicting Evidence: Review. Where there is a conflict in the evidence as to the amount of damages sustained by a land-owner by reason of t'he appropriation of his land for a public road, this court will not interfere with the verdict on the ground that the damages awarded by the jury are in adequate.</p>

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

<p>1. Justice of the Peace: Summons to Another County. When an action is properly brought before a justice of the peace of one county summons may issue to any other county to bring in other parties defendant.</p> <p>2. -: -. In a personal action service of summons in a county where a suit is brought upon a nominal defendant merely, who has no substantial interest in the subject of the suit adverse to the plaintiff, does not confer authority upon the court to issue a summons to another county for a real defendant.</p> <p>3. -: Jurisdiction. The jurisdiction of a justice’s court is inferior and limited, and to support a judgment of that court the record must affirmatively show jurisdiction over the person of the defendant.</p>

<p>1. Evidence Contradicting Terms of Note. A promissory note or contract cannot be varied, qualified, or contradicted by evidence of a prior or contemporaneous agreement resting in parol.</p> <p>2. Note: Indorsement oe Conditions: Waiver. A memorandum indorsed on a promissory note, to the effect that the promise may be discharged by substitution of other obligations of the makers within a given time, is for the benefit of the makers, and if they fail to avail themselves of the privilege or option, within the prescribed period, the note becomes absolute, and a recovery may be had thereon, after maturity, according to its legal import.</p> <p>3. Action: Admission oe Liability: Instruction. Where, on the trial, the defendant admits on the record full liability on a cause of action set forth in the petition it is error to refuse an instruction tendered to find for plaintiff as to such cause of action.</p> <p>4. Construction of Contract. The interpretation of a written contract is for the court and not for the jury, when it is capable of being-construed by its terms alone, unaided by extrinsic facts.</p>

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

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

<p>1. Mandamus: Relator. When mandamus is the appropriate remedy the writ is issued on the relation of a private suitor.</p> <p>2. Attachment: Seizure oe Exempt Property: Appraisement. It is the duty of an officer who has seized under an order of attachment property claimed to be exempt under section 521. of the Code of Civil Procedure to cause such property to be appraised when the attachment defendant, being a resident of the state, the head of a family, and without any homestead exemption, flies with such officer, or in the court from which the writ issued, the proper inventory and affidavit.</p> <p>3. -: -: -: Mandamus: Pasties. Where, upon the filing of such inventory and affidavit, the officer refuses to call appraisers, a writ of mandamus will issue to compel him to perform that duty; and, pending the application for the writ, the attachment creditor may intervene and join with the officer in resisting the application.</p> <p>4. --:-:-:-. To entitle an execution or attachment defendant to a peremptory writ of mandamus against an officer who has seized and refused to appraise property claimed to he exempt under section 521 aforesaid, he must allege, and prove, if not •admitted, that after the seizure and before the sale he filed with the officer, or in the court from which the process issued, a sched-. ule of his entire personal estate, together with a sworn statement that such schedule is complete and correct and that the claimant is a resident of the state, the head of a 'family, and not possessed of lands, town lots, nor houses exempt as a homestead under the laws of this state.</p>

<p>1. Attachment: Sale of Mortgaged Chattels. Where a subsequent mortgagee is without actual possession of the mortgaged property or the right of immediate possession, an officer, under writs of attachment, may lawfully seize the property and by a sale in gross dispose of the mortgagor’s reversionary interest therein.</p> <p>2. Conversion: Possession. To maintain an action for conversion of chattels a'par ty must have actual possession of the property or the right of immediate, possession.</p> <p>3. Chattel Mortgages: Rights of Mortgagee. A subsequent mortgagee has an interest in the mortgaged property which the law will protect in an appropriate action.</p> <p>4. Conversion: Liability of Sheriff. An officer who seizes mortgaged chattels on mesne or final process against the mortgagor is not liable in an action by .the mortgagee if he does nothing to place the property beyond the reach of the mortgagee or to prevent him from taking possession of it when his right of possession accrues.</p> <p>5. Instructions: Harmless Error. Where the verdict returned by the jury is the only one authorized by the pleadings and proof, the giving of an erroneous instruction is not prejudicial error.</p>

<p>Eeeoe from the district court of Box Butte county. Tried below before Bartow, J.</p>

<p>Appeal from tbe district court of Lancaster county. Heard below before Tibbets, J.</p> <p>Action by William M. Clark and John H. Mockett against Harry J. Hall and Charles E. Hall for dissolution of a copartnership and for an accounting. Eugene Ftivre, a creditor, intervened and asked to have his claims satisfied out of the assets of the firm. From a decree for plaintiffs and for intervener, defendants appealed.</p>

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

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

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

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

<p>Appeal: Parties: Evidence. There is presented no question on this appeal but the sufficiency of the evidence to sustain the judgment of the district court as to a single one of three defendants, and as the rights of the sole appellant are dependent upon those of the defendants who have not appealed, the judgment- is affirmed.</p>

<p>1. Review: Failure to File Transcript. The filing of a transcript of a judgment in the supreme court later than one year after its •rendition confers no jurisdiction to enter a judgment in said appellate court.</p> <p>2.-: Transcript. The supreme cpurt has no jurisdiction to re- • view an order not embodied.in.a transcript certified by the clerk of the district court.</p>

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

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

<p>1. Fraudulent Conveyances: Relatives: Evidence. When the effect of a conveyance from one relative to another is to deprive the vendor’s creditors of -their just dues, the transaction will he closely scrutinized.</p> <p>2. -: Husband and Wiee: Creditors: Burden oe Prooe. In a suit between a wife and a creditor of her husband concerning property transferred to her by him after the contracting of indebtedness by him the burden of proof is on the wife to establish the 6011a fldes of the transfer of the property to her.</p> <p>3. Creditors’ Bill: Judicial Sale: Title oe Purchaser. In an equitable action to subject certain real property claimed by the wife to the payment of certain judgments against her husband the decree found for plaintiff, ascertained and established th-e amounts due on the judgments, and directed th-e sheriff to s-ell the real property as upon execution. Held, That a sale under the decree, rather than upon the executions, vested title in the purchaser.</p>

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

<p>1. Justice of the Peace: Bill op Particulars: Review. In error proceedings it will not be assumed that no bill of particulars bad been filed with a justice of the peace before he rendered the judgment assailed, when, before said judgment, no snob question was raised.</p> <p>2.--: Indorsement on Summons: Review, In error proceedings prosecuted by a defendant to procure tibe reversal of a judgment rendered against him on default, by a justice of the peace, prejudicial error will not be presumed from the mere fact that the indorsement on the summons was that judgment in case of default would be for a certain sum with interest, when on the face of the summons there was a recitation that interest was claimed at ten per cent per annum, this rate with the principal justifying a judgment in excess of that actually rendered.</p>

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

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

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

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

<p>1. Fraudulent Conveyances: Chattel Mortgages. A chattel mortgage which provides that the mortgagor may “remain .in possession of said goods and chattels and sell and dispose of any of the stock in trade in the regular cours^ of business,” but contains no provision that the mortgagor shall pay the proceeds of sales made toward the satisfaction of the mortgage debt, is not merely presumptively fraudulent as to creditors of the mortgagor, but is conclusively so.</p> <p>2. ———: -. A debtor may make a valid oral pledge or mortgage of his property to his creditor; but to the validity of such mortgage it is essential that there be an immediate delivery of the mortgaged property to the creditor, and that such delivery be followed by an actual and continued change of possession of the property pledged or mortgaged.</p> <p>3. Replevin. Evidence examined, and held to sustain the action of the district court in directing the jury to return a verdict for the defendant in error.</p>

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

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

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

<p>Error from the district court of Washington county. Tried below before Hopewell, Blair, and Keysor, JJ.</p>

<p>Sales: Rescission: Fraud: Evidence. In an action to rescind a sale of goods for fraud practiced by tbe purchaser, where reliance was placed on reports of a commercial agency, evidence reviewed and held insufficient to show any false representations or any fraud.</p>

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

Error, from tbe district court of Douglas county. Tried below before Ferguson, J. Under tbe evidence tbe bank is not liable. (Freeman v. Citizens Nat. Banlc, 42 N. W. Rep. [Ia.] 632; 1 Daniel, Negotiable Instruments secs. 496, 497; 2 Randolph, Commercial Paper secs. 603, 604; Farmers Banlc & Trust Co. v. Newland, 31 S. W. Rep. [Ky.] 38; Sahlien v. Banlc of Lonolce, 16 S. W. Rep. [Tenn.] 373; Crouse v. First Nat.

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

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

<p>1. Partnership: Judgments: Executions: Distribution oe Proceeds. A partner, -without authority from his copartner, signed the firm name to notes as security for a stranger and not given with any reference to the firm business. The firm was not then in debt or contemplating becoming so. Thereafter firm debts were incurred. Judgment was regularly recovered against the firm on the notes. There was no charge of fraud or collusion. Execution was levied on the partnership property, and the firm creditors having recovered judgments, -they, too, caused executions to be levied on the same property, and then brought suit to have the proceeds of the property first applied to the satisfaction of their demands. Held, Thait they were not entitled to such relief.</p> <p>2. -: -: Estoppel. Under such circumstances the partner who did not sign the notes was precluded from asserting, after suffering judgment thereon, that he or the firm was not bound, and creditors, in the absence of fraud, had no greater right.</p>

<p>1. Consent to Reference: Estoppel: Appeal. A defendant to an action in which an accounting is prayed, who consents to an order of reference and proceeds according to the analogies of a suit in equity, cannot on' appeal be heard to say that the action was essentially of a legal character, and should have been so 'treated.</p> <p>2. Accounting: Counter-Claim: Pleading: Estoppel. One who, by his answer to a petition for an accounting, joins issue on the facts, p-leads a counter-claim, and himself prays an accounting of all the transactions cannot be afterwards heard to allege that the petition did not contain averments sufficient to entitle the plaintiff to demand an accounting.</p> <p>3. Consent to Reference: Participation in Trial: Estoppel. One who consents to an order of reference directing the referee to report his “conclusions” and then proceeds before the referee, after the expiration' of the time limited in the order, participating in the production of evidence and asking the referee to pass upon questions of law and fact, and who, after the evidence has been taken, stipulates for an extension of time for the referee to file his “decision,” cannot, after the filing of an adverse report, be heard to say that the referee did not proceed within the time first fixed, or that he was not authorized to find the facts.</p> <p>4. Partnership: Accounting: Evidence. -Books of account, kept by one partner and showing his transactions with the other, to which accounts the other had access and which he from time to time examined, and -which, after the business ceased, he admitted to be correct, are admissible in evidence on an accounting between them.</p> <p>5. Accounting: Evidence. The evidence on certain issues of fact examined, and certain findings set aside because not sustained thereby.</p>

<p>CBill of Exceptions: Allowance by Deputy Clerk. In cases where the clerk of the district court is authorized to settle bills of exceptions, the act may be performed by a deputy, it not being shown that the principal is absent.</p>

<p>1. Bill of Exceptions: Time eob Allowance. Assuming, but not deciding, that the absence from the county of both trial judge and clerk during the period within which a proposed bill of exceptions should have been presented for settlement excuséd a failure to ■have it settled within that time, still the statutory time began to run, under that assumption, from the time of the judge’s return, and be wias not authorized to allow the bill when, it was not presented for more than ten days after his return.</p> <p>■. The fact that the defendant in error held the pro-2. posed bill longer than the law permitted did not excuse a subsequent default by the plaintiff in error.</p> <p>3. -: Motion to Quash: Waiver. The defendant in error did not waive his right to move to quash the bill by appearing before the trial judge merely to object to its allowance, nor by failing to file the motion until after the time had expired within which the plaintiff in error was required to file his briefs to the merits, such briefs not having been filed.</p>

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

<p>1. Review Without 33ill of Exceptions. If there is no bill of exceptions in the record, or the same has been quashed, questions which for their examination require reference to a bill of exceptions cannot be considered.</p> <p>2. Corporations: Constitutional Law. “The word ‘ascertained,’ in section 4, article 11, of the constitution, means judicially ‘ascertained,’ and to ‘judicially ascertain’ the amount due from a corporation to a creditor thereof means to have the finding and judgment or decree of a court as to such amount.” (Clobe Publishing Co. v. State Bank of Nebraska,, 41 Neb. 175.)</p> <p>3. -: -. The foregoing is also applicable to the liability of a stockholder in a banking corporation as fixed by section 7 of the same article of the constitution. (Farmers Loan &, Trust Co. v.. Funic, 49 Neb. 353.)</p> <p>4. -: -: Pleading. The portion of the petition in relation to the ascertainment of the amount due a creditor from the corporation and exhausting the assets of the latter held sufficient against attacks of the time and manner made.</p> <p>5. Action Against Stockholders. An action such as this should be for the benefit of all the creditors of the corporation against whose stockholders it is commenced.</p> <p>6. Insolvent Bank: Action Against Stockholders: Parties. The bank, the liability of whose stockholders was sought to be enforced herein, held not a necessary party to the action, but not an improper one.</p> <p>7. ———: -: This and similar actions are within the equity jurisdiction of the courts and call for the exercise of their equity powers.</p> <p>8. -: --. The general nature of the relief to be afforded in its main and ordinary elements outlined herein.</p>

<p>1. Conflicting Evidence: Review. A verdict on conflicting evidence will not be disturbed unless manifestly wrong.</p> <p>2. Action Against Insurance Company: Verdict eob Plaintiee. Tile evidence examined, and held that there was sufficient thereof in support of the verdict returned.</p> <p>3. Rulings on Evidence: Review. Actions of the trial court in the admission of alleged objectionable evidence considered and determined not erroneous.</p> <p>4. Insurance: Payment oe Premium: Credit: Question eob Jury. To constitute a life insurance policy operative and of force it was necessary that the first premium should he paid, and in an action on the policy there was evidence sufficient to sustain a finding that the general manager of the company had extended credit to the party named in the policy for the payment o-f the first premium. Held, That the question of whether such credit had been given was a proper one to submit to the jury; and further, that such question was within the issues presented by the pleadings in the case at bar.</p> <p>5. -: -. If, for the payment of such first premium, a credit was extended, the policy became of effect and binding.</p> <p>6. -: Statements oe Agent: Evidence. The statements of an agent while acting in a matter in which he has authority, and of matters within the scope of his authority, and of and concerning the business in hand, made at the immediate time of its transaction, or a part thereof, are admissible in evidence against his principal.</p> <p>7. -:--: -. Such statements made subsequent to the close of the transaction, not connected therewith and not specially authorized by the principal, cannot be received in evidence against the latter.</p> <p>8. -: Instructions: Review. Actions of a trial court in giving portions of the charge to the jury approved or held not prejudicially erroñecus..</p> <p>9. Harmless Error. Errors which it is clear from an inspection of 'the whole record did not prejudice the rights of the complaining party furnish no sufficient cause for reversal of a judgment.</p>

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

<p>1. Appeal to District Court: Issues: Eeeect oe Dismissal. An appeal from the judgment of a justice of the peace in an ordinary civil action, presents the case in the district court, to be proceeded with in all respects in the same manner as though the action had been originally instituted in the appellate court, and if the plaintiff suffer or invite a judgment of dismissal before a hearing on the’ merits, the judgment constitutes no bar to another action on the same cause.</p> <p>2. Insurance: Additional Insurance: Evidence. In a suit on a policy of insurance the defendant company interposed the defense that the insured party hid procured additional insurance on the property in violation of the terms and conditions of the policy in suit, and that by such action the contract had been avoided. The evidence examined, and held not to support the contention of the company, but to sustain a finding that no additional insurance had been placed on the property.</p>

<p>Rehearing of case reported iu 52 Neb. 562.</p>

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

Error from the district court of Douglas county. Tried below before Ferguson, J. Contentions and citations of counsel appear in the opinion.

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

Original application for mandamus to compel the-auditor of public accounts to draw a warrant on the state treasury for fees claimed by relator, as county treasurer of Phelps county, in collecting revenues belonging to the-state. References: State v. Babcock, 22 Neb. 33; State v. Moore,. 36 Neb. 579; Moose v. Slate, 49 Ark. 599; State v. Roderick, 23 Neb. 505; State v. Harvey, 12 Neb. 31; State v. Weir, 33-Neb. 35; Bedwell v..

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

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

<p>Action on Contractor’s Bond: Parties. One not a party to a contractor's bond may maintain an action thereon, when such bond was executed for his benefit.</p>

<p>1. Chattel Mortgages: Sales by Mortgagor: Fraud. Where the mortgagor of a stock of merchandise remains in possession thereof aind continues to sell the same in the usual course of busine-33 pursuant to agreement with the mortgagee that he will apply the proceeds of all sales upon the d-ebt secured by the mortgage, the count cannot pronounce the transaction fraudulent as a matter of law.</p> <p>2. -: -: -: Question por Jury: Instructions. And an. instruction, in such case, which withdraws from the consideration of the jury the question of whether the -transaction was an honest or fraudulent on-e is prejudicially erroneous.</p> <p>3. -: -: -: -. The vital question in such case is. the intent with which the sale of the stock was authorized or permitted, and when that does not appear on the face of the mortgage, it is always a question of fact to be determined by the jury from a consideration of the entire evidence.</p>

<p>1. Habeas Corpus: Irregularities in Trial op Accused. Mere errors or irregularities in the proceedings or judgment of a court in a criminal case will not be examined or inquired into on an application for a writ of habeas corpus.</p> <p>2.-: -: Validity op Conviction: Criminal Law. If the court has jurisdiction of the person of the accused and of the crime charged and does not exceed its lawful authority in passing sentence, its judgment is not void, whatever errors may have occurred during the trial.</p>

<p>Conflicting Evidence: Review. A verdict found upon substantially conflicting evidence will not be disturbed in this court.</p>

<p>J. Judicial Sale: Appraisement: Confirmation: Review. On the hearing of a motion to confirm a sale of real estate it appeared that the value of the land as fixed by the appraisers was $2,000. Four witnesses for plaintiff estimated the value at $1,800. One witness for defendant estimated the value at $2,700 and the other at $2,400. A decision of the trial court sustaining the appraisement was not erroneous.</p> <p>2.-: Objections to Confirmation. Objections to the confirmation of a sale must specifically indicate the irregularity complained of. Failing to do this they will be disregarded.</p> <p>3. -: -: Time. When it is claimed that the time limited to show cause against confirmation of a judicial sale is too short, the defendant should apply to the court for additional time and, if necessary, accompany his application with a proper showing.</p>

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

<p>Rehearing of case reported in 53 Neb. 136.</p>

<p>1. National Banks: Usury. The inhibition contained in section 5197, Revised Statutes U. S., is general and forbids the taking of usurious interest by a national bank from an artificial as well as from a natural person.</p> <p>2. Statutes: Construction: Penalties. A statutory enactment which provides by whom, and under what procedure, a penalty previously created may be recovered is not a penal statute, and there exists no reason for a requirement that it be strictly construed.</p> <p>3. National Banks: Action por Usury: Parties. The right to recover double the amount of usury paid to a national banking association is, by section 5198, Revised Statutes U. S., conferred as well upon artificial as upon natural persons.</p>

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

<p>1. Evidence: Books op Account. Under section 346, Code of Civil Procedure, books of account are not admissible, unless it affirmatively appears that the essential requirements of said section are complied with.</p> <p>2.-: Harmless Error. The admission of immaterial evidence from which no prejudice could result furnishes no sufficient ground for the reversal of a judgment.</p>

<p>Contract to Sell Realty: Memorandum of Agent: Construction: Specific Performance. In view of the facts that a real estate broker gave a memorandum in writing to one who thereon claims rights as a purchaser of real property, in which memorandum it was recited that the proposed sale was subject to the approval of the owner of the real property, and that from the entire evidence adduced in the case it was shown that there was a prompt disap'proval of said terms when submitted to the owner of the real property, it is held that the district court properly instructed the jury to return a verdict against said claimant.</p>

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

<p>1. Antenuptial Contracts: Release of Dower. The manner in which flower may be barrefl by ah antenuptial arrangement between the parties concerned is regulated by statute, and In the absence oí any contravening equitable considerations the method prescribed by statute is exclusive.</p> <p>2. —--: -: Wrrxs. An alleged antenuptial contract whereby each party agreed to claim no interest in the property of the other after marriage, and by which the proposed husband was required after tihe making of the antenuptial contract to make his will in such terms that his intended wife, thereunder, would be entitled to a certain estate in his real property, held to he an entirety; that the two above provisions were interdependent, and that, therefore, the alleged antenuptial agreement was but an executory contract, which, in view of the statute prescribing the method of barring dower in this state, is unenforceable.</p>

Heard below before Ambrose, J. The opinion contains a statement of the case. The action is barred by the statute of limitations. {McDonnell v. Alabama Gold Life Ins. Go., 85 Ala. 401; Payne v. Bullard, 23 Miss. 88; Glenn v. Dorsheimer, 23 Fed. Rep. 695; Penniman v. Briggs, 1 Hopk. Ch. [N. Y.] 343; Eleckner v. Turk, 45 Neb'. 176; Globe Publishing Go. v. State Bank of Nebraska, 41 Neb. 175; Merchants Nat. Bank v. Northwestern Mfg. & Gar Go., 48 Minn. 349; First Nat.

<p>1. Estates: Merger. It is a general rule that where two unequal estates vest in the same person at the same time, without an intervening estate, the smaller is thereupon merged in the greater.</p> <p>2. -: -. But merger does not always or necessarily result from such a coinciding of such estates.</p> <p>3.-: -. Whether the two estates will he held to have coalesced will depend upon the facts and circumstances in the particular case, the then intention of the party acquiring the two. estates, amd the equities of the parties to he affected.</p> <p>4. -: -: Mortgages: Failure to Register Assignment: Attachment-. The mortgagee of a real estate mortgage securing a negotiable note sold and assigned the same, but the assignment was not recorded. Subsequently the mortgagee obtained a conveyance of thé legal title to the real estate on which the mortgage was a lien. Afterwards, and before the maturity of the mortgage debt, a creditor of the mortgagee attached the real estate, purchased it for value at the 'attachment sale, procured a sheriff’s deed therefor, and filed the same for record. The creditor had no knowledge that the mortgage had been assigned, but supposed the mortgagee owned it and that it had merged in the legal title acquired by him. No communication whatever took place between the mortgagee and the creditor concerning the mortgage. Held, (1) That the presence of the mortgage unsatisfied upon the record was of itself sufficient to put an intending purchaser of this real estate upon inquiry as to the whereabouts of the note which the mortgage secured, and as to whether such mortgage had been satisfied by merger or otherwise; (2) that the presence of the mortgage unsatisfied upon the record was notice to an intending purchaser of the real estate that the mortgagee intended at the time he acquired the legal title to keep the two estates separate.</p> <p>5. Execution Sales: CXveat Emptor. The doctrine of caveat emptor applies to purchasers of real estate at execution sales.</p> <p>6.-: Title of Purchaser. Except when controlled by the registry acts, a purchaser of real estate at execution sale acquires only the interest which the execution debtor had in such real estate, when the lien attached on which it was sold.</p> <p>7. -: Sheriffs’ Deeds. Generally, a sheriff’s or master’s deed conveys only the estate which a quitclaim deed from the execution debtor to the purchaser would -have conveyed had it been made and delivered at the date when the lien attached under which the judicial sale occurred.</p> <p>8. Vendor and Vendee: Mortgages: Bona Fide Purchaser. One who purchases the legal title to real estate from a mortgagee thereof, the mortgage securing a negotiable unmatured note being of record, is not a purchaser without notice, within the meaning- ' of the recording acts, and entitled to protection against such mortgage then in the hands of a bona fide purchaser thereof, although no assignment of such mortgage is of record.</p>

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

<p>1. Tax Sales: Treasurer’s Return. Until a county treasurer has made a return to the county clerk of his county of the public sale of lands for taxes held by him in pursuance of section 109, chapter 77, Compiled Statutes 1897, he cannot make a valid private sale of lands for the delinquent taxes due thereon.</p> <p>2. -: -. Where a private tax sale of real estate is invalid because of the failure of the county treasurer to first make such return, the purchaser thereat is subrogated to the rights which the public had against such real estate, and entitled to enforce a lien against the same for the taxes paid at the sale and for all prior and subsequent taxes existing against the real estate and paid by him because of such purchase. Adams v. Osgood, 42 Neb. 450, followed.</p> <p>3. Taxes: Mistake oe Collector: Action eor Damages. The public cannot be deprived of its revenue nor its lien for taxes against property because of the mistake of a tax collector in not collecting ' all that is due against such property.</p> <p>4. -: Levy in City: Publication oe Ordinance. The failure to publish an ordinance of a ciU of the metropolitan class — “An ordinance making the annual levy of taxes for the city of Omaha for the year 1892” — in the official newspaper thereof, as required by section 133, chapter 12a, Compiled Statutes 1895, did not prevent such ordinance from becoming a law, it having been duly passed and approved, and signed by the mayor, and a section thereof providing that the ordinance should be in force from and after its passage.</p> <p>• 5. City Ordinance: Pboof of Enactment. The method provided by section 124, chapter 12a, Compiled Statutes 1895, for proving the existence or enactment of an ordinance of a city of the metropolitan class is not exclusive, but one desiring to prove such an ordinance may pursue the statutory method or resort to common-law methods of proof.</p>

<p>1. Insurance: Cancellation of Policy: Construction of Statute. Section 42, chapter 43, Compiled Statutes 1897, construed, and held to apply onty to an insurance policy in force — a valid and subsisting contract between the insured and the insurer, and to have no reference to a contract of insurance which has ceased to exist by reason of the violation of the provisions thereof by the insured.</p> <p>2. -: --: Action for Unearned Premium. Where an insurer has rightfully declared an insurance contract at an end because of insured’s obtaining additional insurance on the insured property without the consent of the first insurer, contrary to the provisions of the first policy, such insured has no cause of action against the insurer for the unearned premium.</p>

<p>1. Conditional Sales: Wabeanty. Tlie contract between the parties, set out in the opinion, construed, and held not one of absolute sale of property accompanied by the warranty of the vendor as to •the qualifies of the property, but one of conditional sale, the qualities of the property being of the essence of the contract, and the establishment of their existence a condition precedent to the completion of the sale.</p> <p>2. -: -: Evidence: Review. Evidence examined, and held to sustain the finding of the jury (1) that the conditions precedent provided for by the contract had never been fulfilled, and that the vendee refused to accept the property conditionally sold him for that reason; (2) that the vendee had not waived the performance of the conditions precedent provided for by the contract.</p>

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

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

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

<p>Continuance: Exception to Ruling: Review. To review an order denying a continuance it is necessary to take an exception to 'the ruling in the trial court.</p>

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

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

<p>1. Married Women: Action on Contract: Burden oe Prooe. In an action on the contract of a married woman, when the coverture is established, the burden is on the asserting party to show the liability of the wife — that the contract was with reference to or with intent to bind her separate property.</p> <p>2. -: Separate Property. The evidence in the case at bar adjudged insufficient to show a contract effective in relation to the separate property of a married woman.</p>

Error, from the district court of Lancaster county. Tried below before Tibbets, J. The facts are stated in the opinion. When the existence of the debt was shown, and it was shown that the mortgage was given to secure that debt, then the burden was upon the defendant to show that the mortgage was fraudulent; and it was error to instruct the jury that that burden was upon the plaintiff. (.Hocy v. Pierrón, 30 N. W. Kep. [Wis.] 692.)

<p>Rehearing of case reported in 52 Neb. 258.</p>

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

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

<p>1. Sales: False Representations: Rescission: Evidence. TO entitle one to rescind a contract of sale on the ground that he was induced to enter into the same through the false representations of the other party it is unnecessary to establish that the party making the representations at the time knew they were false and untrue.</p> <p>2. -: -: -: Replevin. Where goods are sold upon credit obtained by the fraudulent representations of the vendee as to a past or existing fact, the vendor may rescind the sale and replevy the goods within a reasonable time after the fraud is discovered.</p>

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

<p>1. Garnishment: Review oe Proceedings. Proceedings in garnishment after judgment are reviewable by petition in error, and not' by appeal.</p> <p>2. Proceeding in Error: Time. A proceeding in error must be commenced in the supreme court within one year from the date of the judgment or final order sought to be reviewed.</p>

<p>1. Petition in Error: Parties. It is a firmly established rule in this state that all the parties to a joint judgment must b-e made parties to a petition in error, as plaintiffs or defendants; -and a failure in this respect, if seasonably urged, is sufficient ground for the dismissal of the proceeding.</p> <p>2. Joint Judgment: Findings. A judgment otherwise joint in form is not rendered several by a finding as to which of the defendants is the principal debtor, and which are the sureties.</p> <p>8. Petition in Error: Parties: Waiver or Defect. The mere acceptance of service of briefs by a defendant, to am error proceeding is not a waiver of the objection that there is a defect of parties.</p>

<p>1. Conflicting Evidence: Review. A question of fact determined on conflicting evidence will not be disturbed upon review.</p> <p>2. Rulings on Evidence: Assignments or Error. An assignment, “Errors of law at tbe trial excepted to at tbe time,” is insuflicienit in a petition in error to present for review tbe rulings on tbe admission or exclusion of evidence.</p> <p>3. Assignments of Error: New Trial. An assignment in a petition in error for the denial of a motion for a new trial is had, which fails to specify to which of the several grounds of the motion the assignment applies.</p>