Volume 55 — Nebraska Reports

<p>1. Dedication: Plat: Steeets. An effectual statutory dedication of land for use as a public street cannot result from the filing of a plat, in the office of the county clerk or register of deeds, by one who is not the owner of the fee.</p> <p>3. Highways: Pbescbiption. To establish a highway by prescription there must be a continuous user by the public under a claim of right, distinctly manifested by some appropriate action on the part of the public authorities, for a period equal to that required to bar an action for the recovery of title to land.</p> <p>3.-: Section-Lines: Damages. A resolution adopted by a board of county commissioners purporting to establish a section-line road, within the county for which they are acting, is valid as a preliminary order; but before such road can be actually opened there must be a proceeding upon proper notice to ascertain damages.</p> <p>4. Eminent Domain: Damages: Constitutional Law. Under section 21, article 1, of the constitution, which, declares “The property of no person shall be taken or damaged for public use without just compensation therefor,” a landowner cannot be required to surrender his land for public use until his damages are first ascertained and either paid or proper provision made for their payment.</p> <p>5. Quieting Title: Streets:' City. Where a city asserts the existence of a public street, and seeks to have its title thereto quieted and confirmed as against the general owner of the land, it must show affirmatively every fact essential to the establishment of its claim.</p>

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

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

<p>1. Vacating Judgment: Defense to Action. A party seeking relief in equity from a judgment taken against Mm by default must exhibit a defense to the action, and also show that the rendition of such judgment was not due to his failure to take such proper steps for Ms own protection as an adequate foresight of consequences would naturally suggest.</p> <p>S. -: -: Laches. A judgment will not be set aside on the application of a party who has by his own laches failed to avail himself of an opportunity to defend.</p>

<p>1. Joint Motion for New Trial: Review. Where several defendants join in a single motion for a new trial, and also join in the petition in error, an affirmance as to any one of them requires an affirmance as to all.</p> <p>3. Creditors’ Bill: CANCELLATION oe Conveyances. A surety on a promissory note, after demand was made on him for the interest due, refused payment and, soon afterward, executed two conveyanees of his available real estate, one of which conveyed a valuable tract to his sons for a small consideration and the other conveyed a tract to his attorney to apply on an inflated account for service. In an action in the nature of a creditors’ bill to subject such property to the satisfaction of a judgment on the note, the findings of the court setting aside such conveyances will not be disturbed.</p> <p>S. Trial to Court: Evidence: Review. Where a case is tried to the court without the aid of a jury, it will be presumed that the court did not consider improper evidence in making its findings.</p>

<p>1. Extension of Time for Payment of Note. The payee of a negotiable promissory noté who has sold and transferred the same cannot make a valid contract extending the time of payment of such note.</p> <p>2. Evidence: DECLARATION Against Interest: Sales. Ordinarily, declarations against interest made by a party to a-suit, or by one through whom he has derived title to the thing in controversy, are admissible as evidence against him; but one who has purchased property cannot be affected by statements made in relation thereto by his vendor after the latter had parted with his title and possession.</p> <p>3. New Trial: Reversal oe Second Verdict: Eeeect. When a verdict in favor of. one party is set aside by the district court in the exercise of a sound legal discretion, and a second trial results in favor of the other party, the first verdict will not be reinstated upon a reversal by this court of a judgment based on the second verdict.</p> <p>4. Depositions: Objections. An objection to a deposition on the ground that the witness did not testify to all the elements of a valid contract is without merit.</p>

<p>Error from the district court of Washington county. Tided below before Keysor, J.-</p>

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

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

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

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

<p>Removal of Officer: Injunction Against Boabd. In advance of consideration of charges ag-ainst an officer, by a board having- power to hear such charges, and upon finding them sustained, to remove the officer thereby affected, a court of equity has no jurisdiction, upon the application of such officer, to enjoin action on the pending- charges because of prejudice, abuse of discretion, and irregularities in procedure,- alleged to be about to be in-dulg-ed in by such board in the hearing contemplated.</p>

Exceptions to tbe decision of tbe district court for Buffalo county, H. M. Sullivan, J., presiding. Filed by leave of tbe supreme court under tbe provisions of section 515 of tbe Criminal Code.

<p>Error from the -district court o'f Lancaster county. Tried below before Tibbbts, J.</p>

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

<p>1. Incompetent Persons: Parties to Actions. The iact that one is an infant, idiot, or insane person does not prevent his being sued either at law or in equity.</p> <p>2. -: -: Tax-Sale Certificate: Poeeclosure. Section 119, chapter 77, article 1, Compiled Statutes 1897, does not forbid the owner of a real-estate tax-sale certificate from maintaining an action to foreclose the same, although the owner of -the real estate may be an infant, idiot, or insane person.</p> <p>3. Tax-Sale Certificate: Foreclosure: Pasties. The equitable owner and holder of a real-estate tax-sale certificate may maintain an-action in his own name to foreclose the same, although it has never been formally indorsed by the original purchaser at the tax sale in accordance with the provisions of section 117, chapter 77, article 1, Compiled Statutes 1897.</p> <p>4. Quitclaim Deeds. In the absence of a contrary intent inferable therefrom, a quitclaim deed for real estate pass.es all the interest the grantor has in such real estate at the date of the delivery of such deed.</p> <p>5. -: Tax-Sale Certificate. Such a deed is sufficient to vest in the grantee the equitable title to a tax-sale certificate of the real estate owned by the grantor.</p> <p>6. Special Assessments: Improvement oe Streets. Section 69, chapter 13a, Compiled Statutes 1887, construed, and helé that the presenting to a metropolitan city council of such a petition as the one required by said section is a jurisdictional prerequisite to authorize it to charge by ordinance the cost of paving' streets to the property abutting thereon.</p> <p>7.-: -. Certain special paving taxes, levied on the property in controversy by ordinance passed by the mayor and council of the city of Omaha, held void, because the paving of the streets was not petitioned, for in accordance with the provisions of said section 69.</p> <p>8. Tax Lien: Enfobcement: Burden oe Proof. Where a lien is sought to be enforced for general taxes, the presumption is that the statutes in reference to the levy and assessment of the taxes and to the "sale of the real estate for their non-payment has been complied with; and the burden of showing irregulaaúties, or that the tax sale is void, is upon the party asserting' such fact.</p> <p>9. -: - — : - — . But no such presumption can be indulged when a lien is sought to be enforced against real estate for a- sale made thereof for the non-payment of special taxes. In such a case he who asserts the lien and seeks to enforce it has the burden of showing- the validity of the tax lien. Smith v. City of Omaha, 49 Neb. 883, followed.</p> <p>10. Special Taxes: Levy: Jurisdiction. A metropolitan city council has no jurisdiction to pass an ordinance levying' special taxes against real estate until, sitting as a board of equalization, it has first determined the amount of such special taxes to be assessed ag-ainst such real, estate as benefits.</p> <p>11. -:-:-: Board of Equalization: Notice. And such a board of equalization has no jurisdiction to determine and fix the benefits to be levied as special taxes ag-ainst real estate, until it has given notice of its sitting as such board of equalization, “for at least six days prior thereto,” by publication in the official paper of the city. (Compiled Statutes 1887, ch. 12a, secs. 73, 85.)</p> <p>12. -: • — ——: -: -: -. Where such a board of equalization convenes on the 28th of the month, in pursuance of a notice published on the 23d of the month, it is without jurisdiction to act, and its proceedings are void.</p> <p>13. •— -: — ——: -:-:-. The phrase, “for at least six days prior,” found in said section 85 is not complied with by publishing a notice once in the official paper of the city six days before the council convenes as a board of equalization.</p> <p>14. Mortgages: Foreclosure: Tax Liens. A mortgagee of real estate foreclosing- his mortgage is entitled to have the amount of all valid tax liens owned by him, and taxes paid to protect the same, included in the mortgage foreclosure decree.</p>

Error, from the district court of Gage county. Tried below before Bush, J. Action by Antoinette W. Little against Charles G. .Hoyt and others to foreclose a mortgage. There was a decree for plaintiff, and from an order confirming a judicial sale of the mortgaged premises Charles G. Hoyt prosecuted a proceeding in error.

Heard below before Dueeie, J. The opinion contains a statement of the case. The petition is demurrable, because (1) a court of equity is without jurisdiction, there being an adequate remedy at law; (2) because it does not state facts sufficient to constitute a cause of action; (3) and because it shows that plaintiff has been guilty of gross negligence, which would deprive him of equitable relief.

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

<p>1. Insolvent Corporations: Preferring Creditors. An insolvent corporation, merely because it is a corporation, is not prohibited from preferring' particular creditors.</p> <p>3. -: Tbtjst Funds: Rights oe Creditors. A corporation resolved to remove its stock of merchandise to a distant city and effect a consolidation there with another corporation. Afterwards its managing officers determined, in order to avoid trouble with creditors, to retain a portion of the goods, sell them, and apply the proceeds to the payment of debts. No trust was created and no provision made for the manner of the application of the proceeds. Held, That this arrangement did not constitute the goods a trust fund for the payment of creditors pro rata.</p> <p>3. -: Sale oe Assets: Conversion. The president, one director, and a stockholder who was not a director, acting- without authority from the board, of directors, sold all the visible assets of an insolvent corporation and turned the proceeds of the sale over to a single creditor, a corporation in which two of the persons so acting' were interested and of which they were directors. Held, That such acts amounted to a conversion of the corporate proi)erty.</p> <p>4. -: -: -: Ratification. Such acts were .reported to a meeting of the board of directors, attended by four out of seven, members, two of the four being directors of the preferred corporation also. No action was taken. Held, That this did not cou-stitute a ratification of the acts of the persons selling the assets and paying out the proceeds.</p> <p>5. Corporations: Validity of TRANSACTIONS. If a transaction between two corporations, effected by the votes of directors common to both, can in any event be sustained, it must only be on an affirmative showing of good faith.</p> <p>6. Creditors’ Bill. An action in the nature of a creditors’ bill may be maintained by a judgment creditor to reach any assets of the debtor subject to the payment of his debts, which cannot be reached by ordinary process of law.</p> <p>7.-: Parties: Conversion. .So, where the debtor’s property, subject to the payment of his debts, has been wrongfully converted by a stranger, the creditor may, by suit in the nature of creditors’ bill, reach the debtor’s cause of action for conversion.</p> <p>8. Actions: Estoppel: Laches: Pleading. Estoppel by laches in delaying the commencement of an action is not available as a defense unless pleaded.</p>

Error from th'e district court of Buffalo county. Tried below before Neville, J. Tbe opinion contains a statement of the case. The constitutional liability of a stockholder of a banking corporation may be enforced as a direct liability in a suit against him alone by a single creditor. (White v. Blum, 4 Neb. 556; Smith v. Steele, 8 Neb. 115; Cady v. Smith, 12 Neb. 629; Doolittle v. Marsh, 11 Neb. 245; Coy v. Jones, 30 Neb. 798; Flash v. Gonn, 3 Am. & Eng.

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

<p>1. Attachment: Constbtjctive Service: Sale oe Resident’s Property: Attack Upon .Tudoment. An adjudication by which the res, on which a writ of attachment had been levied, was sold, and the proceeds appropriated to the satisfaction of the debt in suit, where the ground of attachment stated in the affidavit filed was the non-residence in the state of the debtor, and he was not otherwise served than constructively, and did not appear in the suit, may be by him attacked and shown to be void for the reason that he was, at the time of the inception and prosecution of the suit, a resident of the state and then therein, in a subsequent litigation between him and the plaintiff in the attachment suit wherein the adjudication in said suit is invoked as a defense to the demand of the debtor in the attachment on the plaintiff therein. This may be done notwithstanding- the record of the attachment suit on its face shows all acts and facts to constitute it correct and regular and with jurisdiction.</p> <p>2. --: -: False Aeeidavit: Void Judgment. An attachment based on an affidavit of the non-residence of the debtor, if such statement is untrue, is wrongful and the proceedings void.</p> <p>3. Pleading. The cross-petition herein held sufficient as a statement of a cause of action • for the relief demanded, and also for that afforded against an attack by demurrer ore terms.</p> <p>4. Assignments of Error. Assignments of error in this, a trial to the court without a jury, of the admission of testimony, of improper cross-examination and incorrect order of introduction of evidence, examined and determined without force.</p> <p>5. Sufficiency of Evidence: Review. Evidence held sufficient to sustain the judgment against one of the plaintiffs in error, and insufficient as to another.</p>

<p>1. Replevin: Res Judicata. In an action of replevin all wlio are parties are bound by the judgment.</p> <p>2.-: Judgment. The judgment in a replevin snit may award a part of the property to each of two or more defendants.</p> <p>3. -: Bond: Subeties. The obligation of the sureties in the undertaking, by virtue of which the plaintiff in replevin obtains possession of property taken under the writ, is to the party or parties obligees to whom the judgment on the issues accords a recovery.</p> <p>4. --: -: Action: Pasties. In replevin, where there are two or more defendants and the property has been taken under the writ and delivered to the plaintiff after execution by sureties of the prescribed undertaking, if, by the judgment, the entire property is awarded to one defendant, the rights thus accorded may be enforced in an action by such defendant alone, without a joinder of other parties named obligees in the undertaking.</p>

<p>1. Life Insurance: Action on Policy. “A cause of action, or some part thereof, on a life insurance policy arises, within the meaning-of section 55 of the Code of Civil Procedure, in the county where the insured died.” (Bankers Life Ins. Co. v. Robbins, 53 Neb. 44.)</p> <p>3.-: -. “A life insurance company created under the laws of this state is situated, within the meaning- of section 55 of the Code of Civil Procedure, in any county in the state in which it maintains an ag-ent or servant eng-ag-ed in transacting the business for which it exists.” (Bankers Life Ins. Co. v. Robbins, 53 Neb. 44.)</p> <p>3. Principal and Ag-ent: Evidence oe Relation. “Whether the relation of principal and ag-ent exists between two parties is generally a question of fact, and, while it is not necessary to prove an express contract between- the parties to establish such relation, either that must be done, or the conduct of the parties must be such that the relation may be inferred therefrom.” Bankers Life Ins. Co. v. Robbins, 53 Neb. 44, approved and followed.</p> <p>4. -: -: Insurance. It is stated in section 8, chapter 16, Compiled Statutes, what acts or conduct will constitute the performer or actor an. ag-ent oí an insurance company, and the language of the section refers to and includes domestic or insurance companies created under the laws of this state.</p> <p>5. -: -: -: Service oe Summons: Statute. The language of said section, wherein it states, “shall be deemed to all intents and purposes an ag-ent or agents of such company,” includes the purpose of a service of a summons in an action, on a policy of a company, to recover the amount of a loss.</p> <p>6. Insurance: Bank as Agent eor Company: Summons. A bank, by performance of one or more of the acts enumerated in said section, may become an agent of an insurance company and proper service of summons on it will bind the company.</p> <p>7.-. The decisions in State v. Farmers & Mechanics Mutual Benevolent Ass’n, 18 Neb. 376, and In re Babcock, 31 Neb. 500, ajiproved.</p> <p>8. -. The former opinion in this case, to the extent it held section 8, chapter 16, Compiled Statutes, not applicable to insurance companies created under tiie laws of this state, and reversed the judgment of. the district court herein, determined the judgmeut of the district court of Valley county void, and awarded an injunction against its further enforcement by execution or otherwise, overruled.</p>

<p>1. Insurance: Waiver of Defects in Proofs of Loss. If an insurance company or association, after reception of the preliminary or final proofs of claim of loss makes no objections thereto relative to either form or substance, but investigates the particulars of the claim and receives full information and then denies liability for reasons which are without reference to any infirmity or insufficiency of the proofs, such defects of the proofs, if they exist, are waived and cannot be successfully urged and will not be entertained in defense to an action on the claim.</p> <p>2. Instructions: Assignments of Ebbob. Alleged errors in instructions and of refusals to give requested instructions should be separately assigned in the motion for a new trial, and where the assignment is not specific and the action of the tidal court as to any one of the several matters grouped therein was without objection, the complaint must be overruled.</p> <p>3. Action for Accident Insurance: Vebdict fob Plaintiff. The evidence held sufficient to sustain the verdict.</p>

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

<p>1. Decree for Alimony: Eneobcement. In this state a decree awarding- xiermanent alimony is enforceable in tlie same manner as judgments at law.</p> <p>2. -: Disobedience: Contempt. Ordinarily the non-compliance with an order for the payment of permanent alimony is not punishable as for contempt of court.</p>

<p>1. Instructions: Repetitions: Review. A repetition of a proposition of law in the instructions is not reversible error, unless it appears that it operated to the prejudice of the unsuccessful-party.</p> <p>S. Railroad Companies: Eminent Domain: Damages. Where a railroad is built in an alley, the owner of the lot abutting thereon is entitled to recover from the railroad company the depreciation in the value of the lot resulting from such construction of the railroad.</p> <p>3. Trial: Witnesses: Stbiking Out Answer. Where the answer of a witness is not responsive to the question propounded, the proper practice is to move the court to have such answer eliminated from the record.</p> <p>4. Railroads: Damages to Realty. The true measure of damages to real estate occasioned by the ■ construction of a railroad contiguous or adjacent thereto is the difference in the value of the property immediately before and immediately after thp inj-provement, unaffected by any increase or depreciation of property values generally in the same vicinity.</p> <p>5. -: -. In estimating the value of real estate, its rental value may be taken into consideration.</p> <p>6. -: -: Rulings on Evidence. Certain rulings of the trial court on the admission of evidence examined and approved.</p>

<p>1. Official Bonds: Fobm. The official bond of a county clerk is not void by reason of its being-, in form, joint, instead of joint and several as required by statute.</p> <p>3. —-: -: Term oe Orare®. The official bond of a county officer is not void because it does not specify or designate the term for which the principal obligee was elected or appointed.</p> <p>3. Amendment of Pleadings. Amendments to pleadings should always be permitted when in furtherance of justice, and the rulings of the trial court in that regard will be reversed when the record presents a clear abuse of discretion.</p> <p>4. Action on Joint Contract: Parties. In an action upon a joint contract, all who are jointly liable should be joined as defendants, and if service of summons cannot be’ had upon all, the action may proceed against those served.</p>

<p>1. Review Without Bill of Exceptions. When a bill of exceptions has been quashed, no question will be considered a determination of which necessarily involves an examination of the evidence adduced in the trial court.</p> <p>2.-: Instructions. In the absence of a bill of exceptions, instructions to the jury will be presumed to be free from error, unless they contain statements o£ the law which could not be correct in any possible case made by the proofs under the issues tendered by the pleadings.</p> <p>3. Insurance: Value of PeopeRty. Where there has been a total loss by fire of insured realty, a clause in the policy limiting the amount of recovery to a sum less than the amount written in the contract of insurance is invalid and will not be enforced.</p> <p>4. -: Judgment fob Loss: Attoeneys’ Pees. Under the provisions of section 45, chapter 43, Compiled Statutes, plaintiff is entitled to the allowance of a reasonable attorney’s fee on the rendition of a judgment on a policy of insurance on realty, to be taxed as part of the costs; and the court has jurisdiction to allow such fee at the time the ruling- is made upon the defendant’s motion for a new trial, although such motion is not passed upon at the term during which the verdict and judgment were entered.</p>

<p>I. Payment of Taxes: Evidence. Evidence held, insufficient to establish the defense of payment.</p> <p>2. Taxes: Oath oe Assessor. The failure of an-assessor to attach his oath to, and return the same with, the assessment roll are irregularities merely which do not affect the validity of the tax.</p>

<p>1. County Board: Allowance oe Claihs: Conclusiveness. An order of a county board allowing or rejecting claims against the county has the force and effect of a judgment, and is conclusive unless vacated or reversed on appeal. .</p> <p>2.-: -: Appeal by Taxpayer. A taxpayer may prosecute an appeal to the district court from the decision of a county board in the allowance of claims.</p> <p>3.-:-: Warrant: Injunction: Parties. A court of equity will not, at the suit of a private, individual, enjoin the payment of a warrant issued upon a claim duly audited by the county board, the remedy being complete at law, by appeal from the order allowing the claim.</p> <p>4. Injunction Against County Board. Aclcerman v. Tlnmmel, 40 Neb. 95, distinguished.</p>

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

<p>1. Pleading’: Copy op Irstktjment. By section 129 of the Code of Civil Procedure any instrument for the unconditional payment of money only may be attached to and made part of a pleading founded thereon.</p> <p>2. -: Poseclosuke op Moutgage. An action to foreclose a mortgage is not based on an instrument for tbe unconditional payment of money only.</p> <p>3. -: -: Copt 03? INSTRUMENT. In an action of foreclosure copies of instruments evidencing and securing tbe debt cannot properly be made a part of a pleading by annexation and averment.</p> <p>4. -: -: -. But sucb copies, under appropriate averment, may become, and will be considered, part of a pleading to wbicb they- are attached unless stricken out on motion.</p> <p>5.-: Striking Out Matter: Beview. Tbe refusal of a court to strike redundant and irrelevant matter from a pleading is not reversible error unless it affirmatively appears tbat tbe rights of tbe moving party are prejudiced thereby.</p>

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

<p>1. Hew Trial: CONDITIONS. An order of the district court granting--a new trial on conditions to be performed by the moving party alter the adjournment of the term is valid.</p> <p>2. -:-. In sncli case the right to a new trial becomes absolute on performance of the condition.</p> <p>3. -: -. An order of the district court construed and fteltl not to be a mere declaration of intention on the part of the court, but a positive adjudication establishing at once plaintiff’s right to a retrial of the cause on compliance with certain conditions named in the order.</p>

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

<p>1. Pratidulent Conveyances: Assignments: Evidence: Review. The evidence in this case examined and ionnd to show that the assignments through which plaintiff claims an’interest- in the subject-matter in controversy were fraudulent and void.</p> <p>2. Garnishment: Review. There being no evidence of the garnishment alleg'ed by the plaintiff and denied by appellees, and the proofs failing to disclose that the garnishee has in hands any money for which he is liable to account, it is not deemed necessary to retain the case merely to settle the matter of garnishment.</p>

<p>1. Municipal Corporations: Extension oe Stbeet: Assessments. Pacts stated, and held sufficient to justify a finding- of the district court that the alleged lack of continuity of a street did not constitute the parts thereof distinct streets, in such sense that for benefits because of an extension of one part, the lots abutting upon and adjacent to the other part could not be assessed.</p> <p>2.-: Opening Steeets: Benefits: Question of Pact: Review. Whether or not the opening of a street benefits abutting or adjacent lots is in such a degree a question of fact that a finding of ,the district court upon conflicting evidence will not be disturbed.</p> <p>3.-: -: Assessment of Damages: Compensation of APPRAISERS. The compensation of appraisers for the assessment of damag-es for the opening of a street held a proper item to be charged against the real property specially benefited by such public improvement.</p>

<p>Action on Renewal Note: Failure op CONSIDERATION: Evidence. Where a party defendant gave his promissory note in renewal of his past due note which had been given partly in consideration of the conveyance to him of certain lots by the payee named on both notes, such maker cannot defeat an action against him on the renewal note, in the hands of an assignee thereof before .due, by showing that, at the time when said renewal note was executed, the payee promised to cause improvements to be made which would enhance the value of the said lots; the time fixed for the performance of such promise being subsequent to the date when the note was, in fact, assigned to plaintiff.</p>

<p>1. Criminal Law: Plea in Abatement: Waive». A plea in bar is, by our statute, to be deemed a waiver of a plea in abatement, and this is held to follow where both pleas are presented by a single pleading.</p> <p>2. -: Plea in Bab: JURY Teial. Where the allegations of a plea in bar, liberally and fairly construed, substantially state that the prisoner has previously, by a court having jurisdiction, had a judgment of acquittal, the truth of the averments of the plea must be determined by a jury.</p>

<p>Sales: False Repeesentations: Character oe Goods: Evidence: Insteuctions: Review. In an action for damages because of false representations made by tbe vendor as to tbe correctness of an invoice of the goods sold, held there was no prejudicial error in permitting a witness to testify that certain goods were old, when that fact was important in determining' their real value tested by the invoice, and that this was especially the case in view of the/fact that the court afterwards instructed the jury that it should not take such evidence into account as furnishing a basis for recovery because of the quality of the goods in question being defective.</p>

<p>Attachment: Sale of Non-Resident’s Realty: Title of Purchaser: Defective Notice. Under a sale of the real property of a nonresident defendant appropriated hy attachment proceedings, a purchaser acquires a title which cannot he collaterally questioned in another action, even though the publication of notice preceding- the judgment in the attachment proceedings might have been held defective if it had been properly assailed.</p>

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

<p>1. Error Proceedings: Time. To invest this court with jurisdiction to review on error a judgment of the district court a petition in error must "be filed here within one year after the date of the rendition of the judgment sought to be reviewed.</p> <p>3. Appeal: Action at Law. An appeal will not lie to this court from the judgment of a district court rendered in an action purely legal in its nature.</p>

<p>1. School Lands: Rights of Lessees. The rights of a lessee of state school lands are to be determined by the law in force governing the leasing of school lands at the date of the execution of his lease.</p> <p>2. -: -. The act of 1879 granting to the lessees of school lands the privilege of purchasing the same at private sale was a mere offer or option to such lessees which the state might withdraw at any time before its acceptance by a lessee whose lease antedated the passage of such act.</p> <p>3. Mandamus: Natuee of Remedy. The remedy by mandamus rests upon the legal rights of the relator upon one hand and the legal obligations and duties of the respondent on the other. It cannot be predicated solely upon the equities existing between the parties.</p> <p>4. School Lands: Rights of Lessees: Statutes. By section 1, chapter 71, Session Laws 1897, the state intended to, and did, withdraw from sale all its unsold and unleased school lands, and the school lands leased prior to the talcing effect of the act of 1879, the lessees of which had not availed themselves of the privilege of purchasing prior to the talcing effect of the act of 1897.</p>

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

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

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

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

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

<p>1. Appeal: Tbanscbipt eob Review: Peestjmptions. In the review of eases by appellate proceedings in this court, the transcript being' silent as to matters before the district court, it will be presumed that the facts there disclosed were of such character as to warrant the judgment rendered:</p> <p>2. Bill of Exceptions: Omissions: Authentication. If a bill of exceptions discloses that important evidence has been therefrom omitted, authentication of the bill that it contains all the evidence will not control, and in such case the finding will not be disturbed as unsupported by the evidence.</p>

<p>Sale: EXECUTORY Contract: Title: Trover. In an action of trover against a mortgagee of goods by one claiming to bave purchased from the mortgagor prior to the mortgage, evidence examined and held to sustain a finding that the contract relied on was executory and that title had not passed.</p>

the district court of Knox county. Heard below before Robinson, J. An equitable mortgage may arise from non-payment of purchase money, deposit of title deeds, or an unsuccessful attempt to malte a valid mortgage deed.

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

Error from the district court of York county. Tried below before Bates, J. The opinion contains a statement of the case. The procuring of additional insurance subsequent to the issuance of the policy rendered it void. (Union Mutual Life Ins. Go. v. Moiory, 96 U. S. 544; Walton v. Agricultural Ins. Go., 116 N. Y. 317; Kimball v. /Etna Ins. Go., 9 Allen [Mass.] 540; Eagle Fire Go. v. Globe Loan é Trust Go., 44 Neb. 381; German Ins. Go. v. Heiduk, 30 Neb. 288; Burlington Ins.

Heard below before Diteeie, J. The opinion, contains a statement of the case. There was no legal evidence offered to support the alleged contract between Mr. and Mrs. Heilman. Mrs. Hellman and Mr. Oonnell were both incompetent witnesses. As against the representatives of a deceased person Mrs. Heilman cannot disclose the communications made to her by her husband.

<p>1. Indictment and Information: Description oe Money: Evidence. Tlie provisions of section 430 of the Criminal Code, to the extent they relate to matter of proof, held not governable of the question of proof in this case.</p> <p>3. Embezzlement of Public Moneys. The conclusions announced in the former ox>inion (Bartley v. State, 53 Neb. 310) approved and adopted, and, having- been then and therein fully stated, are referred to and need not be restated here.</p> <p>3. -: Conviction: Arguments. The judgment and sentence reaffirmed.</p>

Error from tbe district court of Douglas county. Tried below before Blair, J. Tbe opinion contains a statement of tbe case. If tbe collection was legitimate tbe Moline bank is entitled to tbe proceeds as a trust fund. (Griffin v. Ohase, 86 Neb.. 328; Evansville Banlc v. German-American Banlc, 155 U. S. 556; First Nat. Banlc v. Bank of Monroe, 33 Fed. Bep. 408;’ Gragie v. Hadley, 99 N. Y. 131; Manufacturers Nat.

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

<p>Error from the district court of Scott’s Bluff county. Tried below before Neville, J.</p>

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

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

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

<p>1. Law of the Case: Review. “The determinations of questions presented to this court in its review of the proceedings of an inferior tribunal become the law of the case, and, ordinarily, will not be ■re-examined in a subsequent review of the proceedings of the inferior tribunal on a second trial, or hearing of the cause.” (Co-bum v. Watson, 48 Neb. 357.)</p> <p>3. Special Findings: General Verdict: Judgment. To entitle a party to a judgment on the special findings of a jury, where the general verdict is against him, such findings must establish all the ultimate facts from which his right to a judgment results as a necessary legal conclusion.</p>

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

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

<p>1. Payment: Application. One who receives and appropriates to his own use money sent him for a particular purpose will be held to have received and retained it in accordance with the purpose, for which i<t was sent.</p> <p>2. -: Bailment. Money sent to a person as a payment cannot, without the consent of the sender, be received and held as a bailment.</p> <p>3. Life Insurance: Assueed’s Health: Evidence. Evidence examined, and held sufficient to warrant the jury in finding that the assured was in good health when the policy in suit was delivered and the first premium paid.</p> <p>4. -: Acceptance op Peemium: Fbaud': Pleading. A defendant, in an actiop on a policy of life insurance, which plaims thf$ was induced to accept payment of a past-due premium by the fraud of the beneficiary named in the contract, must, to avail itself of that defense, plead and prove the fact.</p> <p>5. Continuance: Absent Witnesses. There was no prejudicial error in denying an application for a continuance in order to secure the testimony of witnesses who afterwards appeared and testified at the trial.</p> <p>6. -: -. An application for a continuance grounded on the absence of a material witness is properly denied where the party making the application has not been diligent in attempting to procure the testimony or compulsory attendance of such witness.</p> <p>7. -: -: Haemless Ekbok. Where it appears that the evidence of an absent witness, if given on the trial, could not possibly change the result, an order refusing a continuance to obtain his testimony, if erroneous, would not be prejudicially so.</p>

<p>1. Trial: Opening and Closing: Change oe Theory: New Trial. A party who has induced the court to permit him to open and close the trial by representing' that there was only one issue of fact for decision cannot, after an adverse verdict, recede from his position and obtain a new trial on the ground that there were other questions of fact which should have been submitted to the jury.</p> <p>2. Pleading: Defenses. A defendant may plead as many grounds of defense as he may have, provided they are not so repugnant that if one be true another must be false*</p> <p>3. Insurance: Inconsistent Defenses. An answer in an action on a contract of insurance which alleges a failure to furnish proofs of loss and that the plaintiff caused the premises to be burned does not present inconsistent defenses.</p> <p>4. Evidence: Instructions. An instruction admonishing the jury to consider the evidence of an accomplice “with great care and caution,” without giving them a definition of that phrase, is not erroneous.</p> <p>5. Instruction: Offer. The giving of an instruction which states a correct and pertinent proposition of law is not error, and a party who complains that such instruction lacks explicitness should himself formulate and tender a better one.</p> <p>6. Eailure to Mark Instruction “Given”: Harmless Error. The failure to write the word “given” on an instruction read to the jury is not sufficient grounds for reversing- a judgment when such failure was not prejudicial to the losing party.</p> <p>7. Conflicting Evidence: Review. Where the verdict is the result of substantially conflicting testimony, a judgment based thereon will not' be reversed on the ground that the evidence is insufficient.</p>

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

<p>1. Judicial Sales: CERTIFICATE oe Incumbrances: Waiver. As the certificates of incumbrances of real property before judicial sale are for the benefit of plaintiff, he may waive any or all such certificates if he chooses so to do.</p> <p>2. •— -: Objections to Confirmation: Evidence. Where the showing by affidavit in resistance of confirmation of a judicial sale was that “the property was divided, assessed, and recognized as distinct, separate, subdivisions, one having no relation to the other,” held,, that, for the purpose of reversing the order of confirmation, this language would not be construed as stating that the lots were, in fact distinct, separate, subdivisions.</p> <p>3.-: -: Publication of Notice: Burden of Proof. Where the return of a judicial sale by a sheriff recited that publication had been made in a newspaper printed and in general circulation in the proper county, naming it, it devolved upon the party attacking the validity of the sale to show why there was not sufficient compliance with the provisions of section 497, Code of Civil Procedure, if that is the defect relied upon.</p>

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

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

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

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

<p>1. Evidence: Oeeeb to Compromise. In a suit for damages for inducing the purchase of property by false representations an offer of plaintiff to compromise his differences -with the defendant before suit broug’ht is incompetent evidence.</p> <p>3. Instructions: Issues. A party to an action is entitled to have the . jury instructed with reference to his theory of the case, when the pleadings present the theory as an issue and it is supported by competent evidence.</p> <p>3, 'Witnesses: Intekisst in Suit. The law does not raise against a witness the presumption of dishonesty because of his interest in the result of the suit in which he testifies.</p> <p>4. -:-: INSTRUCTIONS. Where a defendant to a suit testifies on the trial in his own behalf, it is error for the court to charge the jury that, “as a general rule, a witness who is interested in the result of a suit will not be as honest, candid, and fair in his testimony as one who is not so interested.”</p>

<p>Contract for Advertising. Tlie contract between the parties set out in the opinion and the construction placed thereon by the district court approved.</p>

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

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

<p>Landlord and Tenant: Payment eoe Heat: Lease: Evidence. In an action "by a landlord against Ms tenant to recover for heating the demised premises, the lease being silent as to the landlord’s duties in that respect, evidence set ont in the opinion held to tend .to show that payment for the heat was included in the rent reserved, and that it was error to peremptorily instruct the jury to find for the plaintiff.</p>

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

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

<p>Reheaeing- of preceding caste (55 Neb. 409.</p>

Error from tire district court of Hall county. Tried below before Kendall, J. The opinion contains a statement of the case. The deed conveying the premises to Mr. Hagge is absolutely void as to the creditors of the grantor, for the reason, apparent in the defeasance, that the instrument was made for the benefit of the grantor and to hinder and delay his creditors in the collection of their debts.

<p>1. Evidence: Business oe Hotel: Registers. Hotel registers, without proof that the names thereon are true entries of the guests of 1he hotel that they were paying guests, or the duration of their visits, are inadmissible to prove the extent of business of such hotel.</p> <p>2. Deed: Covenant Against Using Premises fob Hotel Purposes: Waiver : Damages. A deed conveyed land with the covenant by the grantees that the premises conveyed should not for two years be used for hotel purposes. Afterwards the grantor in writing waived the covenant, the waiver containing- the .following: “Provided the maximum rate of said hotel shall be $1 per day, and provided a greater sum is charged this agreement.shall be null and void, and the clause in said deed shall be binding on the owners of the above described property.” This was made at a time when the grantees were contemplating a sale to a stranger for hotel purposes. Held, That the condition in the waiver was not merely intended lo charge the second grantee, but that on a violation of the agreement as to the rate at which the hotel mig-ht be conducted the original grantees became liable on their covenant.</p> <p>3. Breach of Contract: Gaiks PREVENTED: Evidence. A party injured by breach of contract may recover for gains prevented, provided they are within the established rales permitting consequential damages, and provided they can be proved to a reasonable degree of certainty.</p> <p>4.-: Damages: Evidence. Evidence set forth in the opinion held to leave the damages too uncertain to be allowed.</p>

Appeal by defendants from confirmation of a judicial sale of mortgaged realty. Heard below before Hasting-s, J., in tbe district court of Fillmore county. Submitted to supreme court on motion of appellant John L. Gustus for leave to redeem tbe premises from tbe foreclosure sale. References in support of the motion for leave to redeem tbe property from tbe mortgage-foreclosure sale: 1 Am, 6 Eng.

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

<p>1. Amendment of Pleadings. An amendment to conform a pleading to facts proved or sought to he proved, when it will substantially change the claim or cause of action, is not allowable.</p> <p>2. Issues on Appeal. Causes on appeal to the district court must be tried on the same issues as were presented in the court from which appealed.</p> <p>3--: Amendment oe Pleadings. If in an appeal to the district court from the judgment of a justice of the peace the bill of particulars filed before the justice and the petition filed in the appellate court declare on an account for the plaintiff as the origi-i nal creditor, the latter may not, during trial, be amended to show that the plaintiff claims by assignment or transfer of the account, as this would substantially change the cause of action and also present different issues than were of the litigation in . the inferior court.</p>

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

<p>1. Judicial Sales: Objections to Conelrmation. It is no valid ground of objection to confirmation of sale that the' defendants were not notified of the issuance of the order of sale and of the meeting of the appraisers. Sullivan, J., dissenting.</p> <p>2. —:—: Objections to Appraisement. Objections to the appraisement of real property under a decree of foreclosure must be made prior to the sale by a motion to vacate the appraisement.</p> <p>3. Review Without Bill of Exceptions. The finding of the trial court-on a question of fact cannot be reviewed in the absence of a bill of exceptions preserving the evidence upon which such decision was made.</p>

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

<p>1. Replevin: PleadiNG: Chattel M'oktgages. In replevin, where plaintiff bases his rig-ht to possession of the property upon a special ownership by virtue of a chattel mortgage, he must plead the facts which create such special ownership and right to possession.</p> <p>2. -: -: -: Evidence. An allegation of general ownership and right of possession cannot be proved by introducing in evidence a mortgage on the chattels replevied.</p> <p>3. -: Evidence. Evidence examined, and held not to establish an absolute ownership of the property in plaintiffs.</p>

<p>1. Commercial Paper: INDORSEMENT: Evidence. Where commercial paper is indorsed in blank, the tei'ms ol the contract may he shown by parol evidence to be different from those which the law implies in such cases.</p> <p>2. -: -: -. A restrictive indorsement in unambiguous language cannot be contradicted or explained by evideuce resting-in parol.</p> <p>3. --: -: -. A certificate of deposit indorsed by the payee, “Pay to the order of R. C. O., Cash, for account” of the indorser, is a restrictive indorsement, vests no g-eneral property to the paper in the indorsee, but merely constitutes him an ag-ent for the purpose of collecting-; and parol evidence is not admissible to establish that the transfer of title was absolute.</p> <p>4. -: — : -: -. The former opinion in this case, reported in 53 Neb. 67, overruled.</p>

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

<p>1. Reversal on Appeal: PROCEEDINGS Below. Where a decree in favor of plaintiff, foreclosing- a mechanic’s lien, is reversed on an appeal by the defendants, and the cause remanded to the trial court for further proceedings, the situation of the plaintiff is precisely the same as if his rights had never been tried.</p> <p>2. Mechanics’ Liens: Extent oe Incumbrance. One who furnishes materials for all the buildings on several lots, under one contract, may make the entire debt a charge upon all the land, but not a charge upon a portion thereof.</p> <p>3. -: - — •. Where a portion of the premises has been absorbed by a prior lien thereon, such material-man may have a lien for his entire debt on the remainder of the premises.</p>

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

Original action in the nature of quo warranto presenting to the supreme court the constitutionality of legislative enactments conferring upon the governor power to appoint four members of the board of fire and police commissioners of the city of Omaha. The facts and issues are stated in the opinions. The federal constitution guaranties to every state in the Union a republican form of government. A state with a different form of government could not be admitted.

<p>1. Conflicting Evidence: Review. The finding of a jury on conflicting evidence will not be disturbed unless clearly wrong'. -</p> <p>2. Evidence of Agency. The facts stated in the opinion held ample to sustain a finding- that an agency existed embracing- the right to mate the contract on which the action was grounded.</p> <p>3. Assignment of Error: Evidence. An assignment of error in this court that the district court erred in admitting the evidence of certain witnesses will be overruled if any of the evidence given by such witnesses was competent.</p> <p>4. -: Indeeiniteness. Alleged errors will not be reviewed unless assigned in the petition in error with such definiteness as to clearly indicate the particular ruling complained of.</p> <p>5.-: --. An assignment of error that “the court erred in overruling- the motion for a new trial” is too indefinite where there are several grounds of error set forth in such motion.</p>

<p>1. Mortgage Foreclosure: Action by Administrator. An administrator may maintain an action to foreclose a real estate mortgage executed to secure the payment of purchase-money notes, one of which was made to his intestate, a married woman, as an inducement for releasing her dower and homestead rights in the mortgaged premises.</p> <p>2. -: -: Note. And the fact that the note made to the intestate was, by her direction, delivered to her husband and never came into her personal possession, is no impediment to the maintenance of such action.</p> <p>3. Mortgage: Considekation: Dower and Homestead Rights. The relinquishment by a .married woman of dower and homestead rights in her husband’s land is a sufficient consideration for the execution to her of a note and mortgage representing' a portion of the price for which such land was sold.</p>

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

<p>1. Credibility of Witnesses: Weight on? Evidence. It is the peculiar function of tlie jury to determine the credibility of witnesses and the weight to be accorded to their testimony.</p> <p>3. Parent and Child: Services: Remuneration. Personal services rendered by a child to a parent are presumed, in the absence of special circumstances, to have been gratuitously rendered; but this presumption may be overcome by sufficient evidence tending-to establish a contract for remuneration.</p> <p>3. Married Woman: Contract: Separate Estate. The contract of a married woman, made with reference to, and upon the faith and credit of, her separate estate, is valid and enforceable.</p> <p>4. Instructions: Assignments oe Error. An assignment of error in the motion for a new trial that “the court erred in refusing to give the first, fifth, sixth, eighth, and nintfi instructions asked for by said administrator” was properly overruled for the reason that at least one of such instructions did not contain an accurate statement of any legal proposition applicable to the case.</p>

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

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

Appeal, from tbe district court of Saline county. Heard below before Hastings, J. Tbe opinion contains a statement of tbe case. An unconstitutional statute bas tbe force of law until declared void by tbe court of last resort. (Miller v. Dunn, 72 Qal. 4)62; Sessions v. Botts, 34 Tex. 335; People v. Sal-omon, 54 Ill. 40; St. Louis & S. F. B. Go. v. Evans, S5 Mo. 307; Brandhoeffer v. Bain, 45 Neb. 781.) .

Heard below before Marshall, J. Upon the face of the petition it is apparent that an allegation necessary to constitute a cause of action is omitted. . The grantee named in the mortgage in question is not an individual or natural person, as the word “company” and abstract terms, comprising the name, plainly indicate. It may be a partnership' name, or a corporation name, presumptions in favor of either of which do not exist.

<p>Action for Balance Due on Account: Overpayment: Judgment fob Defendants: Instbuctions: Eevebsal. An instruction in which it was erroneously assumed that there was evidence which might entitle the defendant to a verdict for a sum claimed, followed by a verdict accordingly, held to show such prejudicial error as against the plaintiff that the judgment must be reversed, even though in form the judgment entry was that defendant recover of plaintiff the amount found due by the verdict less that same amount.</p>

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

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

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

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

Error from the district court of Douglas county. Tried below before Duffie, J. The opinion contains a statement of the case. Under the terms of the writing, liability for the money mentioned therein was not to accrue until the payee’s discharge as Indian agent {Mathews v. Reble, 3 L. R. Ch. App. Gas. [Eng.] 701; Roffey v. Greenwell, 10 Ad. & E. [Eng.] 222; Morse v. Rice, 36 Neb. 217; TJpton v. Ferrers, 5 Yes.

<p>1. Justice of the Peace: Setting Aside Vebdict. A justice of the peace has no jurisdiction to set aside the verdict of the jury in a case tried before him and grant a new trial, except upon the grounds that the verdict was obtained by fraud, partiality, or undue means.</p> <p>2. - — : Veedict. In a justice court the jury returned the following verdict: “We, the jury, impaneled and sworn in the above entitled.cause, do find that the plaintiff had no cause of action until the assignor and executor of the lease had settlement on old account.” Held, A verdict for the defendant.</p>

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

<p>Death hy Wrongful Act: Negligence: Evidence. The record examined, and. 7teW to contain, no evidence which would support a verdict in favor of the plaintiff in error; and the action of the district court in peremptorily instructing the jury to return a verdict for the defendant in error approved.</p>

<p>Intoxicating Liquors: Action Ag-ainst Saloon-Keeper: Damages Resulting Prom Intoxication: Evidence. In a suit against a licensed saloon-keeper to recover damages which the plaintiil’ alleged lie liad sustained by reason of disposing of bis property while intoxicated from the drinking of liquors furnished by the saloon-keeper, it is error for the court to charge the jury that they may award the plaintiff such damages as he' has sustained by reason of disposing of his property while intoxicated, in the absence of an admission, or some evidence, of the value of the property disposed of.</p>

<p>1. Summons: Sebvice by Publication: Time to Answer. Service by-publication is irregular, and should be quashed on motion, when the published notice requires the party to answer on or before the second instead of the third Monday after the fourth publication of the notice.</p> <p>2. -: -: -. The published notice takes the place of a summons, and must inform the- defendant on what date he is required to answer, and he must be required to answer on the date fixed by the Code. The statute is mandatory. Neither the courts, nor the clerks of the court, are invested with any discretion with respect to the time which a notice by publication shall be published, what it shall contain, nor on what date the defendant shall be notified that he is required to answer.</p> <p>3. Mechanic’s Lien: Fobeclostjse: Limitation of Actions. An action to foreclose a mechanic’s lien must he commenced within two years after the filing of a claim for lien in the office of the register of deeds.</p> <p>4. -- — ■: -: -. Such an action is commenced at the date of the summons which is served upon the defendant.</p>

<p>1. Homestead: Extent and Value. A debtor’s homes! ead exemption is limited in quantity to two contiguous lots in an incorporated city, town, or village; if outside such corporation, to 160 acres of land; and in either case, in value, to $2,000.</p> <p>2. -: Lien oe Judgment: Mortgage. A money judgment of a district court becomes a general lien upon all the lands of the debtor in the county, at least, from the date of its rendition, and •a mortgage executed upon such lands thereafter will not invest the mortg-agee with a lien superior to the judgment for anything more than the debtor’s homestead interest.</p> <p>3. --: FORECLOSURE OE MORTGAGE: REFORMATION OE DECREE: Sheriee’s Deed. On the facts disclosed by the record held that a mortgagee who purchased the real estate sold at judicial sale to satisfy the deci'ee foreclosing his mortgage was not entitled to have the foreclosure decree and sheriff’s deed reformed so as to include therein lands not adjudged by the foreclosure decree to be subject to the lien of the mortgage.</p>

<p>1. Criminal Law: PKET.iariNARY Examination. The district courts are without jurisdiction to try on information one accused of a felony, except he be a fug-iiive from justice, unless he has been first accorded the privilege of a preliminary examination.</p> <p>2. -: -. The preliminary examination provided for by the Criminal Code is in no sense a trial of the person accused.</p> <p>3. -: -: Plea. When one is charged with having committed a crime, is arrested, and brought before a magistrate, it is not essential that he should be asked to plead, or plead to the complaint.</p> <p>4. ■-: -. The object of a preliminary examination is to ascertain whether the crime charged has been committed, and, if so, whether there is probable cause to believe the accused committed it, and, if so, to insure his appearance in the district court to answer the complaint of the state therefor.</p> <p>5. -: -. The statute awarding one accused of a crime the right to a preliminary examination was enacted for the benefit of the accused.</p> <p>6. -: -: Waites. A preliminary examination is a right accorded — a personal privilege granted — and one which the accused may waive.</p> <p>7. -: -: —=-. If the accused, on being’ arrested and brought before an examining magistrate, voluntarily pleads that he is g’uilty of the crime charged against him, he thereby waives his right to a preliminary examination.</p> <p>8. -: -:-: Recognizance. Where an accused, on being brought before an examining- magistrate, waives a preliminary examination, then the magistrate should recognize him to appear in the district court and enter upon his docket the proceedings that actually occurred, and a duly certified transcript of this record, filed in the office of the clerk of the district court, will invest that court with jurisdiction to try the accused on information for the crime with which he was accused before the examining magistrate.</p> <p>9. Robbery: Deunkenness: Evidence: Instbuctions. On the trial of one for robbery the evidence tended to show that the accused was intoxicated at the time it was alleged he committed the crime, but there was no evidence that he premeditated the commission of the crime and then became intoxicated. The court charged the jury that no state of mind resulting- from drunkenness short of actual insanity or loss of reason was any excuse for a criminal act. Held, That the court erred.</p> <p>10. -: -: Question eor Jury. The taking- of money or property from the person or custody of one assaulted, with a felonious intent on the part of the accused to steal the same, is an essential ingredient of the crime of robbery; and whether the accused at the time of the assault, by reason of being intoxicated, was incapable of controlling- his will and forming and entertaining a felonious intent is a question for the jury’s consideration in determining whether the accused is guilty of the crime charged.</p> <p>11. Criminal Law: Character oe Accused. Previous good character of the accused in a criminal prosecution is a fact which he is entitled to have submitted for the consideration of the jury, precisely as any other circumstance favorable to Mm, without any disparagement by the court. Johnson v. State, 34 Neb. 257, followed.</p>

<p>Contract: Evidence. Where negotiations take place between parties which, result in their reaching' an agreement in reference to the subject-matter of the negotiations, ancl the parties subsequently reduce their agreement to writing, sign and deliver the same, then, in the absence of fraud or mistake or an ambiguity in the writing, it constitutes the best and the only competent evidence of the contract originally made.</p>

Error from tbe district court of Douglas county. Tried below before Scott, J. The opinion contains a statement of the case. The alternative writ contained no averment that the relator had applied to the board of transportation and exhausted the remedy there. The remedy by mandamus cannot be invoked where relator has another remedy. (State v. ■Fremont, E. & M. V. R. Go., 22 Neb. 313; State v. Fremont, E. & M. V. R. Do., 23 Neb. 117; State v. Chicago, St. P. M. & 0.

<p>1. Payment to Agent: PROOF of Agent’s Authority. One claiming the "benefit of a payment of a negotiable instrument, to a person other than the owner, who does not produce the instrument or have it in his possession, must show that such person had authority or ax>parent authority, under the law of agency, to receive payment.</p> <p>2. -: -. The collection by a third person of installments of interest on a negotiable instrument confers no authority or apparent authority on such person to receive payment of the principal when it matures.</p> <p>3. Mortgages: Payment to One Not Authorized to Receive It: Rights of Innocent Purchaser: Constructive Service. A borrowed of B money wherewith to pay a mortgage on his land, and secured the same by a mortgage to B. B did not pay the money to A, but undertook to discharge the first mortgage therewith. He iiaid.to a person not authorized to receive x>ayment and who did not account to the holder of the first mortg-ag-e. Suit was begun to foreclose the first mortgage. After such suit was begun, but before A had answered and before the record disclosed the connection between the two mortgages, B sold his note and mortg-age to a stranger without notice, and before the note secured by the mortgage had matured. Held, That there had been no payment of the first mortgag'e, and that the failure of consideration for the second was not an available defense as against the innocent purchaser. Held, fwrther, That only constructive service having been had on B in the foreclosure case, and B not having appeared therein, no relief could be given in that case to the mortgagor against B.</p>

<p>1. Rlea&ing: Evidence. It is not error to exclude evidence irrelevan to the issues as made up, although the court may have erroneously stricken from the pleading-s averments to which such evidence would be relevant. The error in such case would be in ruling- upon the pleadings and not in ruling- upon the evidence.</p> <p>2. --: -: Transcript op Foreign Judgment: Harmless Error. An action was brought on a foreign judgment. The defendant pleaded matter by way of set-off or counter-claim, which was on motion stricken from the answer, and the court refused leave to tile an amended answer containing the same matter. The transcript of the proceeding's leading- to the judgment sued on was on the trial introduced in evidence and disclosed an adjudication adverse to the defendant of all the matters so stricken out, Held, That the rulings on the pleadings whereby the defendant was prevented from alleging such matters, if erroneous, were nob prejudicial to the defendant.</p> <p>3. Review: Presumption oe Supersedeas: Foreign Laws. No presumption arises in this state from the fact that an appeal or proceedings in error have been taken, that the judgment sought to be reviewed has been superseded, and no such presumption will be indulged in the case of the judgment of another state, unless the law of that state be in that respect proved to be different from our own.</p> <p>4. Foreign "Judgment: Eeeect. The courts of this state cannot refuse to give effect to a foreign judgment which has not been superseded, merely because it was erroneously rendered, or because it seems probable that it may be reversed by an appellate court.</p> <p>5. Pleading and Proof. Averments not denied by the answer to a petition or a supplemental petition are taken as true, and need not be proved.</p>

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

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

<p>1. Alteration of Instruments: Pleading. A change made in a written instrument by. a stranger is an act of spoliation merely and recovery may still be had, but the instrument must be pleaded according' to its original terms and not according to its tex-ms as altered.</p> <p>3.-: -: '.Ratification. When the holder of a note had notice that it had been altered by changing the amount, and with such notice sued upon it in its altered condition, and endeavored to recover thereon, 7¡eld, that he thereby ratified the act of alteration, and that the coui’t did not eir in refusing to permit him, after trial, to amend by counting on the note as originally made.</p>

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

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

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

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

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

<p>1. Pleading: Construction. If the question of the sufficiency of the petition in its statement of a canse of action is not raised until during the trial of the cause, the pleading will he liberally construed, and, if possible, sustained.</p> <p>2. -: -. By an application of the foregoing rule the petition in the present case held to state a cause of action.</p> <p>3. Trespass: Burden oe Prooe: Highways. In an action which involves an alleged trespass on real estate, wherein a defendant pleads as a justification or excuse of or for the acts which consisted of the removal of a fence, and making’ a grade and ditch; that they were done within a public road, such party must show by a-preponderance of the evidence the facts so pleaded. (Shaffer v. Stull, 32 Neb. 98.)</p> <p>4. Highways: Establishment: Evidence. Eludings that a ptiblic road had not been established by the board of commissioners; that a section-line had not been ordered opened for travel; that a road had not been established by nser; also, that there had not been snch use of a highway, and for the necessary length of time, as to raise a presumption that an order by the county board which purported its establishment was with and after all necessary legal steps, — were all sustained by the evidence.</p> <p>5. Trespass: Injunction. An injunction will be granted to restrain a threatened trespass upon real estate, where such act would result in the destruction of the premises, in the character of their use and enjoyment, or a deprivation thereof.</p>

<p>1. Foreign Laws: Evidence. In the absence of proof the law of another state on any subject, where involved in litigation here, will be presumed to be the same as the law of this state.</p> <p>2. Notary Public: Seal. A notary public must, by impression of his official seal, authenticate all his official acts, and his certificate which lacks such authentication is without force or effect.</p>

<p>1. Officer Conducting Judicial Sale: Oath. A person designated in a decree oC foreclosure of a mortgage of real estate to conduct üi i sale is not required to take and file an oath.</p> <p>2. -:-: Presumption on Review. If such action had been necessary or required, in the absence of proof in the record to the contrary the presumption would prevail that there had been a compliance with such requirement.</p>

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

<p>1. Bonds: Conditional- Signature: Principal and Surety. If a "bond in form a joint obligation is signed by a surety on condition that others are to become parties to the instrument in the same capacity, and delivery of the bond occurs without a compliance with the condition, the instrument is ineffective as to the party who so signed it, unless the oblig'ee, prior to- the delivery, was not apprised of the condition, or the signer, subsequent to execution of the bond, waived the condition.</p> <p>2. -: -: ■--. If, when delivery of such bond is made, there apxiears on its face that which discloses or sug'gests an infirmity or irregularity relative to one of the requisite signatures sufficient to cast the duty of an inquiry on the obligee, and no investigation follows, the condition and its lack of fulfillment may be potent matter of defense for the party who signed the bond conditionally in an action thereon.</p> <p>3. --: -: —-. A surety may insist on a compliance with the plain import of his contract, inclusive, in a case like the present, of the condition which accompanied his signature; and, where the condition exacted the signature to the instrument of another party, it will not be satisfied with a subsequent x'atifi-cation of the signature which had been, at the time of execution thereof, written on the paper by an unauthorized person.</p>

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

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

Originar application for writ of habeas corpus. The opinion contains a statement of the case. The legislative enactment under which petitioner was convicted and sentenced is void. The trial court was therefore without jurisdiction, and habeas corpus is the proper remedy to obtain petitioner’s liberty, (fíne parte, Rosenblatt, 14 Pac.

Lancaster c'ounty. Heard below before Hall, J. The opinion contains a statement of the case. If a party bids at an auction sale, knowing that he is not in a position to comply with the terms of sale, the sal e is absolutely void, and no title passes, and the bidder is not in a position to claim any rights under his bid. (Da-set v. Landry, 30 Pac.

Error from the district court of York county. Tried below before Wheeler, J. The agent is liable to plaintiff below in an action for money had and received. (Smith v. Binder, 75 Ill. 492.)

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

<p>1. Municipal Corporations: Costs oe Repairing Pavement. Under the provisions of section 69, chapter 13a, Compiled Statutes 3891, the costs of making' “Ordinary repairs” in street pavements cannot be assessed against the abutting lot owner, but must be paid by the city.</p> <p>2. -: -: Contbacts. A paving contract which binds the contractor to bear the expense for the term of ten years of “all repairs which may, from any imperfection in the said work or material, become necessary within that time,” does not include “ordinary repairs,” nor is said stipulation in violation of said cli apier 13a.</p> <p>3. -: -: - — . The contract mentioned in the opinion construed and held not to cast the hnrden on the abutting lot owner to make “ordinary repairs.”</p> <p>4. Review: Cohelioting Evidence. This court will not disturb a finding of fact based upon conflicting evidence.</p> <p>5. Municipal Corporations: Cost of Paving Stbeet. Where, in case a street paved with wooden blocks laid on a concrete base, such blocks have become worthless and are entirely removed in pursuance of a contract entered into with the city, and replaced with vitrified brick laid on the old base, such new improvement is not an “ordinary repair” within the meaning of the statute, but is a repavement of the street, and to pay the costs thereof a si>ecial assessment may be made against the abutting real estate.</p>

Heard below before Chapman, J. The opinion contains a statement of the case. An instrument which takes effect only npon the death of the maker is testamentary in character. ('llaberghan v. Vincent, 2 Ves. Jr. [Eng.] 204; Tmiwr c. ftcolt, 51 Pa. 126; Tn re Lante,mchlager’s Estate, 45 N. W. Rep. [Mieh.] 147; Hitchcock v. Simpkms; 58 N. W. Rep. [Micb.] 47;. Singleton v. Bromar, 17 Am.

Heard below before Dueeie, J. The burden of proof was upon Frances R. O’Brien to show the illegality of the special taxes. (Adams v. Osgood, 42 Neb. 450; Towle v. Holt, 14 Neb. 221; Dillon v. Merriam, 22 Neb. 151.) In an equitable proceeding for the foreclosure of tax liens technical defenses should not be considered. {Merriam v. Dovey, 25 Neb. 618; Roads v. Bstabroolc, 35 Neb. 297; Otoe County v. Brown, 16 Neb. 394.)

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

<p>Printed Abstracts: Review. Under section 1 ot rule 2 of tliis court (52 Neb. ix.) tbe agreed printed abstract must be complete in itself, without reference to tbe transcript, and, wben error does not affirmatively appear from an examination of sucb abstract, tbe judgment sought to be reviewed will be affirmed.</p>

Error from the district court of Douglas county. Tried below before Ferguson, J. Action by Bernard H. Post against G-ate City Abstract Company and the sureties on its bond, William Coburn, E. W. Taylor, R.' E. Gaylord, Cadet Taylor, Henry O. Dev-ries, J. B. West, and S. K. Spaulding, to recover the amount paid by plaintiff to satisfy a judgment which was a lien on land purchased by him in reliance upon abstracter’s certificate that the land was free from incum-brance.

<p>Rehearing of case reported in 54 Neb. 127.</p>

<p>Suit in Equity for New Trial in Action at Law: Dismissal: Jon be: Interest in Case: Witnesses. A rehearing- having been allowed in this case, the record is examined, and the conclusions announced in the former opinion adhered to.</p>

<p>Foreclosure: Sale oe Realty: Prior Liew. Where real estate is sold under a decree o£ foreclosure, subject to a prior lien, the purchaser must discharge such lien, or suffer the land to be sold for its satisfaction.</p>

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

<p>1. Landlord and Tenant: Payment oe Rent. To absolve himself from the payment of rent a tenant must, in addition to giving notice of the termination of the tenancy, surrender possession of the leased premises.</p> <p>2. Public Corporations: Acts oe Agents. A public corporation is bound by the acts and contracts of its authorized agents within the scope of their authority.</p> <p>3. Counties: Officers: Rent. Where a county rents rooms for one of its o fdcers and puts him in possession thereof with the records and property pertaining to his office, it is bound to pay the stipulated rental so long as such officer continues in possession.</p> <p>4. -; Allowance oe Claims: Reconsideration. Upon due notice to parties interested a county board may once reconsider its action iii allowing' or disallowing a pi aim against the county.</p> <p>5.-: -: -: Res Judicata. Where an order disallowing a claim against a county has been reconsidered, such order of disallowance will not operate as an adjudication of the claim.</p> <p>6. Evidence: Judgments: Memoranda. Before an order is formally entered on the record it may be proved by the clerk’s memorandum or the judge’s minutes.</p>

<p>Municipal Corporations: Width oe Streets: Evidence: Review. The owners ol real estate situated within the corporal e limits of a city subdivided and jRatted the same. On the recorded plat, L street, which the public authorities had previously undertaken to establish, was indicated as being 66 feet wide, and the surveyor’s certificate, in effect, declared that to be its width. The owners of the subdivision built houses on said street as shown on the plat, and along the same constructed a sidewalk, of which the general public enjoyed the unhindered use. They also mortgaged some of the lots, and represented to the mortgagee, as an' inducement to make the loan, that such lots were located on L street. Held, That the finding of the trial court that L street is a thoroughfare 66 feet wide was warranted by the evidence, and should be sustained.</p>

<p>1. Dismissal: Trial oe Counter-Claim. A plaintiff has the right, before final submission of his canse of action, to dismiss the, same, but this right does not control the right of the defendant to proceed to the trial oE a set-ofE or counter-claim properly pleaded by him in his answer.</p> <p>2. Taxation: Evidence oe TjEVy: Tax Eeoeiípt. A tax receipt is not sufficient to establish the fact of the levy or assessment of taxes when such levy or assessment is disputed in the pleadings.</p>

<p>1. Foreclosure: Deckee: Order oe Sale. The sale of real property ' under foreclosure proceedings is by virtue of the decree, the- terms of which cannot be modified or controlled by an order of sale issued by the clerk of the court in which such decree is entered.</p> <p>21 -: Coneirmation oe Sale: OBJECTIONS. Objections to confirmation considered, and shown not to be founded upon facts disclosed by the record.</p>

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

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

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

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

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

<p>Bastardy: Evidence. To sustain a finding’ of gnilty in the ti’ial of a bastardy case in tlie district court oí the proper county, it is necessary to show by the evidence that the mother, at the time of the birth of the alleged bastard, was an unmarried person.</p>