Volume 56 — Nebraska Reports

Original application in the nature of quo warranto to oust respondent from the office of mayor of the city of Omaha on the ground that he is ineligible within the meaning of section 2/ article 1 4, of the constitution, providing that any person who is in default as collector and custodian of public money or property shall not be eligible to any office of trust or profit under the constitution or laws of the state. - Heard on demand of respondent for a trial by jury, on…

<p>1. Guaranty: Banks: Teanseer oe Note; Renewal: Liability oe Guarantor. A co-partnership engaged in banking transferred its assets to an incorporated bank in consideration of certain of its stock, guarantying' the payment of the notes transferred. Two of the co-partners became president and cashier, respectively, of the incorporated bank. The latter, by these officers, renewed and extended the time of payment of a note transferred to it by the co-partnership. Suit was brought by the incorporated bank ag-ainst the co-partners on their guaranty to recover the debt evidenced by the note which had been renewed. Reid, Under the circumstances, the renewal of the note was not a defense of which the co-partners could avail themselves.</p> <p>3.New Trial: Joint Motion. A joint motion for a new trial by two or more parties, if not good as to all, should he overruled.</p> <p>3. Corporations: Compromise to Guarantor oe Note. Where co-partners engaged in hanking transfer their assets to an incorporated hank, guarantying the paper transferred, and become stockholders of the incorporated bank, and some of them the managers thereof, a compromise and settlement of the liability of the co-partnership and the incorporated hank by its managing officers is voidable at the election of the incorporated hank, unless in such settlement the full amount due on the guaranty j.s paid, or the settlement is authorized or ratified by the stockholders or hoard of directors of the bank, the co-partners not voting as stockholders or directors.</p> <p>4. Payment: Evidence. The evidence examined, and held not to sustain the defense of payment interposed by the defendants below.</p> <p>5. Guaranty of Note: Construction. A copartnership engaged in banking' transferred its assets to an incorporated 'bank under a written contract of guaranty in the following language: “All bills receivable taken by the new bank ai'e to he fully guarantied by Leonhardt Bros. & Co., and such guaranty to remain on all had and doubtful paper until same are collected.” Reid, A guaranty of payment, and not of collection.</p>

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

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

<p>1. Costs: Liability op Parties. The courts have no inherent power to award costs to a litigant. The right to costs is a statutory-one.</p> <p>2. _: -. The provisions of the Code on the subject of costs examined, and held to establish the following principles: (1) Generally, costs fóllow the judgment—are awarded the successful and taxed to the losing party; (2) prima facie, the unsuccessful litigant is liable for costs; and, to justify a judgment awarding him costs, either an express statute must intervene, or the circumstances be such that a judgment against him for costs would be inequitable.</p> <p>3. -: --. The discretion conferred on the courts by section 623 of the Code is not an arbitrary, but a legal, one, to be exercised within the limits of leg-al and equitable principles.</p> <p>4. -: -: Contest oe Will: Attorney’s Fees. The courts are not invested with the discretion to award costs or attorney’s fees to an unsuccessful contestant of a will simply and solely because of the fact that he undertook the contest in good faith, and at the time there existed probable cause therefor.</p>

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

<p>1. Married Woman: Liability as Surety on Note: Estoppel. A national bank loaned a customer a sum of money g-reater than ten per cent of its capital, contrary to the United States statutes. The customer’s wife signed the notes given for this loan, as surety. Held, In a suit upon the notes, the wife was not estopped from interposing her coverture and that she signed the notes as surety, as a defense.</p> <p>2. -: -: Construction oe Statute. The court adheres to the construction placed by it upon the “Married Woman’s Act” in Grand Island Banking Oo. v. Wright, 53 Neb. 574.</p>

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

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

<p>1. Fees Paid by Insurance Companies: State Officers. Section 32, chapter 43, Compiled Statutes (General Statutes 1S73, ch. 33, sec. 32), relating to fees paid by insurance companies for services performed for them by the auditor, was so far modified by the constitution of 1875 as to require such fees to be paid in advance into the state treasury, and prohibited the auditor of public accounts from receiving them. (Moore v. State, 53 Neb. 831.)</p> <p>2. Officers: Liability oe Sureties. For all wrongful acts or omissions of a public officer within the limits of what the law authorizes or enjoins upon him as such officer his sureties are liable.</p> <p>3. -: -: Embezzlement. But such sureties are not liable for moneys collected • and embezzled by their principal, unless as such officer he was authorized by law to collect or receive such moneys.</p> <p>4. -: -: '-. The 'law required of the insurance companies transacting or desiring to transact business in the state to first pay certain enumerated fees into the state treasury. The auditor of public accounts collected from the insurance companies these fees and embezzled them. Held, That his sureties were not liable therefor.</p>

Heard below before Hastings, J. The issues and facts are stated in the opinion. The appellee having had access to the books, they were prima facie evidence against him.

Heard below before Tibbbts, J. Tbe opinion contains a statement of tbe case. Tbe set-off was erroneously allowed. (Dorsey v. McGee, 30 Neb. 657; 22 Am. & Eng. Ency.

Error from the district court of Douglas county. Tried below 'before Hopewell, J. Tbe opinion contains a statement of tbe case. Jurisdiction is to be determined by tbe amount sued for.

<p>1. School Districts: Indebtedness: Time Warrants. A school district may not incur indebtedness in the erection of a schoolhonse and issue in evidence thereof warrants payable at a future date and bearing interest. {State v. Sab'm, 39 Neb. 570, followed.)</p> <p>2.---—: -: ■—-: Contracts. A contract with a district board providing for payment in such time warrants is tainted with the same vice as the warrants themselves, and no recovery can be had thereon.</p> <p>3.--: Contracts: Assumpsit. Whether a person who has performed work under such a contract may recover therefor on an implied assumpsit, not decided, it appearing that the action so far as based on that theory was barred by the statute of limitations.</p>

<p>1. Principal and Agent: Breach op Contract: Action por Commissions: Pleading. A contract between a manufacturer and a ’ selling agent provided that on deferred payments commissions should be paid only on payment of the notes representing such deferred payments, and in proportion as payment should be made. In an action for commissions the agent declared solely on the contract and alleged no breach except failure to pay. Held, That he could not, under such averments, recover commissions on unpaid notes, on the theory that the principal had been negligent concerning their collection.</p> <p>2.-: ■—■—■—: -■: --—: Amendment: Proop. An amendment to such a petition, alleging- that oral agreements and correspondence had modified the contracts, was insufficient to sustain proof of such damages, the amendment not alleging- what modifications had been made.</p> <p>3. Violation of Instructions to Jury. A verdict in plain disregard of the instructions of the court is contrary to law.</p> <p>4. Evidence: Letters: Copies. Letter-press copies of letters are but secondary evidence, and are not admissible against objection without showing the loss of the originals or giving notice to produce them.</p>

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

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

Proceeding to review an order of the district court of Douglas county overruling a motion to quash the bill of exceptions. Heard below before Dickinson, J.

Original -application for mandamus to require the auditor -of public accounts to examine, audit, and allow or disallow claims presented by relator against the state.

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

<p>Original application for mandamus. The facts are stated in the opinion.</p> <p>References: State, v. Hunter, 27 Pac. Rep. [Wash.] 1076; Whaley v. King, 28 Pac. Rep. [Gal.] 579; State v. McClinton, 48 Pac. Rep. [Wash.] 740; State v. Engle, 127 Ind. 457; Ex parte Charleston, 18 So. Rep. [Ala,] 224; Brotan v. Mesnard Mining Co., 63 N. W. Rep. [Mich.] 1000; People v. Staift, 59 Mich. 529; Illinois C. R. Co. v. People, 143 111. 434; State v. Scott, 53 Neb. 571; Garber v. Palmer, 47 Neb. 699; Bolin v. Fines, 51 Neb. 650; Bartels v. Sonnenschein, 54 Neb. 68; State v. Tarpen, 1 N. E. Rep. [O.] 215; State v. Home Street R. Co., 43 Neb. 830; State v. Merr ell, 43 Neb. 575; State v. Holmes, 38 Neb. 355; State v. Lapin, 40 Neb. 442; State v. Thiele, 19 Neb. 220; O’Chander v. State, 46 Neb. 10; State v. Beall, 48 Neb. 817; City of Emporia v. Randolph, 56 Kan. 117; State v. Parlcer, 12 Wash. 685; Shedenhelm v. Shedenhelm, 21 Neb. 387; Grimes v. Chamberlain, 27 Neb. 605.</p> <p>References: Williams v. Bruffy, 102 U. S. 249; Smith v. Western Union Telegraph Co., 83 Ky. 271; Draper v. Davis, 102 U. S. 371; State Bank v. Green, 8 Neb. 297; Kountze v. Erck, 45 Neb. 288; State v. Churchill, 37 Neb. 702; People v. McRoberts, 100 111. 458; Ives v. Muskegon Circuit Judge, 40 Mich. 63; Ex parte Perry, 102 U. S. 183; Ex parte Whitney, 13 Pet. [TJ. S.] 404; People v. Dutchess, 20 Wend. [N. Y.] 658; McGee v. State, 32 Neb. 154; State v. Einkaid, 23 Neb. 641; State v. Poioell, 10 Neb. 48; State v. Bomnan, 45 Neb. 752; State v. Holliday, 35 Neb. 333.</p>

<p>1. Construction of Petition: Demurrer. Against an objection at the inception of a trial to the introduction of any evidence for plaintiff on the ground that the petition does not state a cause of action, the pleading attacked will be liberally construed and if possible sustained.</p> <p>2. Master and Servant: Risks oe Employment: Negligence. An employs assumes all the ordinary risks and hazards incident to the employment of which he is possessed of sufficient intelligence and capacity to know and understand, and an adult person is presumed to be of sufficient mental power to comprehend such risks; but if a person is employed for a work which is dangerous or to labor in a dangerous place or situation, and, by reason .of youth, inexperience, ignorance, or want of mental capacity he may fail or fails to comprehend the danger, it is the duty of the employer to warn the employe of the hazards and instruct Mm of the work. (Jones v. Florence Mining Go., 66 Wis. 277, 38 N. W. Rep. 207.)</p> <p>3. -: -: Instructions. An instruction in am. action by a servant against the master for damages for injuries received while in the performance of work, which states that the employe assumes the “ordinary risks of the business upon which he enters as far as these risks, at the time of entering on the business, are known to him, or could be readily discernible by a person of his ag-e and capacity in the exercise of ordinary care,” hold, in the conditions of the issues as developed in the pleadings and evidence, prejudicially erroneous in its reference and limitation relative to time.</p> <p>4. Instructions: Issues. An instruction which would allow the jury to render a verdict on 'an issue not of the pleadings is erroneous.</p> <p>5. -: -. An instruction examined and determined not open to the criticism that in it there was an attempt to specifically state or cover all the essential or material elements of the issues.</p>

<p>1. Mortgages: Priorities: Res Judicata. A finding of the court that the question of priority of liens between two mortgages was not settled in a prior action held supi>orted by the evidence.</p> <p>3. Res Judicata: Issues. To sustain a plea of prior adjudication the matter in question must be shown to have been of the issues joined and tried in the former action.</p> <p>3. Mortgages: Assignments. A mortgage is but an incident to the debt the payment of which it secures and its ownership follows the transfer or assignment of the latter.</p> <p>i. -: -: Release by Assignor. The assignor of a promissory note the payment of Which is secured by a mortgage cannot as ia rule release the promisor from, liability for the debt, and, by such release, bind the 'assignee, or in any manner or to any extent disturb or change the force of the mortgage lien.</p> <p>5. Evidence of Agency. Held that the evidence will not sustain a finding' that certain parties plaintiffs in a prior suit acted therein, and in some other matters connected with the transactions involved in the present litigation, as agents for the plaintiffs herein.</p> <p>6. Lis Pendens. The conditions of the issues as developed in evidence are such as not to present for discussion and decision the efficiency or force of a notice of Us pendens perfected in an action in which it is now contended the question herein litigated was settled.</p>

<p>Conflicting Evidence: Review: Conditional Sales. A judgment based on a finding on evidence in which there is a conflict relative t'o the material point, but of which there is sufficient in support of the finding, will not be disturbed.</p>

<p>1. Vendor and Vendee: Deferred Payments: Specific Performance. A contract of sale and purchase of real estate, in which the time in relation to deferred payments of the purchase price is made of the essence of the contract, and a forfeiture provided for non-performance, may be enforced in accordance with the terms of the express stipulation.</p> <p>3. -: -: -: Tender. A tender made after action instituted by the vendor to enforce his rights under the contract is too late to be effectual.</p> <p>3. — -: -: -: Occupying Claimants. A vendee -of such a contract is not, as against the rights of the vendor in an action to make operative the stipulation and its forfeiture, within either the letter or spirit of what is known as the “Occupying Claimants Act” (Compiled Statutes, ch. 63).</p> <p>4. Ejectment: Second Trial. In an action of ejectment a general demurrer was interposed to the reply and on hearing was overruled. The demurrant announced and made of record his determination to stand on the demurrer and plead no further, and judgment was rendered ag'ainst him. Reid, Not on demand and -as of course entitled to have the judgment set aside and a new trial ordered by virtue of the provisions of section 630 of the Code, viz.: “In an action for the recovery of real property, the party against whom judgment is rendered may, at any time during the term at which the judgment is rendered, demand another trial by notice on the journal, and thereupon the judgment shall be vacated, and the action shall stand for trial at the next term.”</p>

<p>1. Principal and. Surety: Failure to Sue Principal. Mere voluntary forbearance of the creditor, or his mere failure to institute and prosecute á suit against the principal debtor, will not operate the discharge of a surety on the obligation of indebtedness, nor will non-c'ompliance by the creditor with a request or notice o£ surety to commence suit against the principal work the surety’s release.</p> <p>S. Dismissal: Res Judicata. A dismissal of a suit which is not upon, or does not involve, the merits, is not a bar to another action on ■the same cause nor to its presentation as a claim against the estate of the deceased adverse party.</p>

<p>1. Instructions: Evidence. An instruction given which submits to the jury a question of fact material to the issues on trial, of the existence of which, there has not been evidence sufficient to warrant or support an inference, is error which may call for setting aside a verdict or reversing a judgment.</p> <p>3. Pleading: Undenied Allegations. All material allegations of new matter in the answer not denied in a reply must be taken as true. (Code of Civil Procedure, see. 134.)</p> <p>3. Immaterial Evidence: Harmless Error. Admission of immaterial evidence which, though erroneous, is not prejudicial to the rights of the complaining party, is not ground for the reversal of a judgment.</p> <p>4. Conflicting Evidence: Review. A finding on a point at issue as to which there is a conflict in the evidence will not be disturbed if there is sufficient favorable evidence to sustain it.</p> <p>5. Instructions: Exceptions: Review. An exception at the time to giving an instruction is essential to secure a review of error assigned of such action.</p> <p>6. Evidence: Assignments of Ebbob. The admission of evidence will not be reviewed in an error proceeding to this court, if of the alleged -error of the trial court in that regard there is no special assignment in the petition in error.</p>

Eeeok from, the district court of Cass county. Tried below before Chapman, J. The opinion contains a statement of the case. The court erred in striking from the record the affidavit for a continuance. (Moline v. Curtis, 38 Neb. 520.) Defendants having objected to the jurisdiction of the court and obtained an order quashing the summons, are estopped from, demanding a trial to determine their property rights and damages. (Bollong v. Schuyler Nat.

<p>Corporations: Liabilities oe Stockholders: Actions: Parties. It is the settled doctrine of this court that the liability of a stockholder in a banking corporation, under the provisions of section 7, article 11, of the constitution, is for the creation of a fund for the benefit of all creditors, and an action to enforce such liability must be prosecuted for the benefit of all the creditors Of the corporation against all the stockholders within the jurisdiction of the court.</p>

<p>1. Eminent Domain: Interest on Award oe Damages. Where, on am appeal from an award of damages for land taken for right of way purposes, the damages are found to exceed the award of the commissioners, it is proper to instruct the jury to allow interest from the time of condemnation at the rate of seven per cent per annum.</p> <p>2. Review: Evidence: Cross-Examination. A party cannot obtain a reversal on account of the admission of incompetent evidence which he brought out on the cross-examination of the witness of his adversary.</p> <p>3. —-: —■-. Error cannot be predicated upon the refusal to eliminate from the record the testimony which the party complaining himself introduced.</p> <p>4. Eminent Domain: Map oe Premises: Evidence. On the’trial of an appeal from an award of damages for land appropriated for railroad purposes a map or plat of the premises, shown to be correct, is admissible in evidence.</p> <p>5. -: Evidence: Value oe Property: Witnesses. The owner of land appropriated by a railroad company for right of way, who has resided upon and cultivated the land and is familiar with the value thereof, is a competent witness on the question of its value.</p> <p>6. -: Railroads: Elements oe Damage. The elements of damage lor the construction of a railroad across a farm are the actual value of the portion taken and the depreciation in value of the remainder caused by the proper construction and operation of the railroad, excluding general benefits.</p>

<p>1. Judicial Sales: Appraisement. Where lands constituting- one body-are used as a single tract, ordinarily they may for judicial sale be appraised tog-ether.</p> <p>3.-:---: Objections. Objections to the appraisement must be made prior to the sale.</p> <p>3. Bill of Exceptions: Affidavits. Affidavits used on the hearing of a motion in the district court cannot be considered on review in • the appellate court unless embodied in a bill of exceptions.</p> <p>4. Judicial Sale: Place. The sale of lands under a decree of foreclosure must take place at the court house, unless there be none in the county, in which case the sale must occur a-t the door of the building in which, the last district court of the county was held.</p>

-Error from the district court of Lancaster county. Tried below before Hall, J. The opinion contains a statement of the case.

Error from the district court of Platte county. Tried below before Westover, J. Heard on motion of defendant -in error to dissolve an order of the -supreme court restraining enforcement of the judgment below.

Heard below before Keysok, J. The opinion contains a statement of the case. Plaintiff was not the owner of the lot when the assessment was made, and cannot urge its invalidity.

<p>1. Word. The word “thereupon,” as used in section 1039 ol the Code of Civil Procedure, is an, adverb of time, signifying without delay.</p> <p>2. Replevin: Justice oe tiie Peace: Transfer oe Case. If, in an action of replevin pending before a justice of the peace, the appraised value of the property taken on the writ exceeds $200, it is the duty of the justice .to transmit the transcript and files therein to the district court without unnecessary delay.</p> <p>3. -: -;—: -•. The failure of the justice to comply with the requirements of said section for a period of nearly ten months held to work a discontinuance of the action.</p> <p>4. Unauthorized Appearance: Judgment: Attack. Where judgment is rendered against a party whose appearance in the cause is entered by >an unauthorized attorney, the presumption of jurisdiction is not conclusive in an original action directly assailing such ' judgment. *</p> <p>5. Judgment: Injunction Against Enforcement. An action may be maintained to-enjoin the enforcement of a void judgment when there is a concurrence of the following conditions: (1) The judgment must be without any leg'al or .equitable basis; (2) its invalidity must not appear on the face of the record; and (3) the party complaining must be without an adequate remedy at law.</p> <p>6. --: Proceedings to Vacate. Section 002 of the Code of Civil Procedure has reference only to judgments and orders possessing some degree of legal vitality, and not to such as are absolutely void.</p>

Error from tbe district court of Lancaster county. Tried bel-ow before Hall, J. Tbe opinion contains a statement of the case. The petition having omitted to allege thlat the death of the insured was due to injuries inflicted by external, violent, and accidental means, fails to state a cause of action.

Error from -the district court of Kearney county. Tried below before Beall, J. Heard on motion of defendant to quash -the summons in error.

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

<p>Original application for nmndam'us to require respondent to settle, allow, and sign a bill of exceptions.</p>

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

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

<p>Joint Judgment: Motion to Vacate: Parties. Under the provisions of section 1001, Code of Civil Procedure, a motion to set aside a joint judgment against two or more defendants inseparably connected as such, should be overruled, when made by one defendant on his or her own behalf alone.</p>

<p>Trial: Opening Cause: Additional Testimony: Review. Under tie existing- conditions of the issues and the showing- made, held that there was no reversible error in the refusal of the district court, after final submission, to open a cause for the reception of additional testimony.</p>

<p>Guaranty: Liability oe Guarantor. A mere guarantor of collection is liable upon bis guaranty where it is shown that the note guarantied cannot be collected of the maker, and not otherwise.</p>

<p>Appear from the district court of Douglas county. Heard below before Duefie, J.</p> <p>References: Mason v. Pomeroy, 7 L. R. A. [Mass.] 771; Koyes v. Blakanan, 6 N. Y. 567; New v. Kieoll, 73 N. Y. 127; Buck v. Winn, 11 B. Mon. [Ky.] 320; Marshall v. Goble, 32 Neb. 9; Kothman v. Skaggs, 29 Kan. 5; Kulst's Appeal, 40 Pa. St. 90.</p> <p>References: Duvall v. Craig, 2 Wheat. [U. S.] 45; Taylor r. Dads, 110 U. S. 330; Cobb v. Knapp, 71 N. Y. 348; McCrawr. Godfrey, 14 Ab. Pr. n. s. [N. Y.] 398; Thomson, v. Daanport, 9 B. & 0. [Eng.] 78; Jones v. JBtna Ins. Co., 14 Conn. 501; Kingsley v. Davis, 104 Mass. 178.</p>

<p>1. Corporations: Action Against Subscriber to Stock: Defense: .Pleading: Evidence. Where, in a suit by a corporation against a subscriber to its stock to recover his unpaid subscription, the defense is that the entire capital stock was not subscribed, a reply which avers that the defendant waived the non-payment of the entire stock is good as against a demurrer. Such a plea is not a conclusion of law, but the averment of an ultimate fact, included in which are all the ingredients which constitute waiver.</p> <p>3. -: -: -: -: --. Under such a'plea the acts and omissions of the defendant which tend to show, or from which may be inferred, an intention on his part to waive subscription of the entire capital stock are competent and relevant.</p>

Error from the district court of Saunders county. Tried below -before Sedgwick, J. The opinion contains a statement of the case. The pleading's and proof establish a breach of the condition against change of title, and the company is not liable. (Oakes v. Manufacturers Fire & Marine Ins. Co., 131 Mass. 164; Baldioin v. Phcenix Ins. Co., 60 N. H. 164; Lang-don v. Minnesota Farmers Mutual Fire Ins. Ass’n, 22 Minn. 193; Milwaukee Mechanics Mutual Ins. Co. v. Ketterlin, 24. 111.

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

<p>1. Partition: Parties. Only a joint.tenant or a tenant in common of real estate can maintain an action for its partition.</p> <p>2. -: -: Executors and Administrators. An administrator or executor is neither a joint tenant nor a tenant in common with the heir or devisee of his decedent, and cannot maintain an action for the partition of his real estate.</p> <p>3”. -: Object oe Action. The object of a partition suit is to assign property, the.fee simple title to which is held by two or more persons as tenants, or joint tenants in common, to them in severalty.</p> <p>4. -: Adverse Title: Jurisdiction oe Court: Procedure. The raising- of questions of adverse title in a partition suit does not oust the court of jurisdiction nor render a dismissal of such suit necessary. The court may hold the case, determine the issues of title, and then proceed with the partition.</p>

<p>l. Tax Sale: Caveat Emptor. In the absence of an express statute to the contrary the rule of caveat emptor applies to a purchaser at a tax sale.</p> <p>3. -: -: Liability oe County. The liability of a couuty lo a purchaser for money paid by him to its treasurer for lands sold by the latter at tax sale, there being at the time no valid tax delinquent against the land and for which it is sold, is not a common-law but a statutory one.</p> <p>3. -: -; -. The rights and liabilities of such purchaser ánd the county are to be determined by the statutes in- force when the void sale occurred.</p> <p>: Statute. Section 131, chapter 77, Compiled Statutes (Revenue Law 1879), applies only to sales made after it took effect.</p> <p>5. __: Indemnification of Purchaser. A county cannot be compelled to indemnify a purchaser at a void tax sale made prior to June, 1871, unless the sale resulted from the mistake or wrongful act of its treasurer.</p>

<p>Review of Instructions. The correctness of the ruling of a district court in giving or refusing- instructions cannot be considered here unless such ruling is first challenged in the district court by motion for a new trial.</p>

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

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

<p>1. Insurance: Reformation of Policy: Evidence. Evidence stated, and held sufficient to sustain a decree reforming- a policy of fire insurance.</p> <p>2. -: Knowledge of Agent. An agent of an insurance company, empowered to receive and transmit applications and to receive payment of the premium, binds the company by knowledge acquired in and about the preparation of the applications and by representations made to the insured while so doing and concerning the same.</p>

<p>1. Criminal Law: Confessions: Foundation fob Evidence. In laying tlie foundation for evidence of confessions in a criminal case it is sufficient to prove affirmatively all that occurred prior to and at the time of the confessions, provided such affirmative proof excludes the hypothesis of inducements of hope or fear.</p> <p>2. Witnesses: Opinions as to Sanity. Witnesses not experts may give their opinions as to a person’s sanity only after narrating the facts by them observed on which they base their opinions.</p> <p>3. Insanity: Instructions: Burden of Proof: Text-Books. An instruction in a criminal case, in effect, that every one is presumed sane, but if there is evidence tending to rebut the presumption and sufficient to raise a reasonable doubt on the Issue of insanity, then the burden is on the state to show sanity beyond a reasonable doubt, shifts the burden of proof and is therefore erroneous.</p> <p>4. -: Burden of Proof. To east on the state the burden of proving sanity it is only requisite that there be some evidence tending to prove insanity. It is not necessary that there must first be evidence sufficient to raise a reasonable doubt.</p>

<p>1. Trial to Court: Erroneous Admission of Evidence. This court will not reverse the .judgment in a case tried to the court without a jury merely because of the admission of improper evidence.</p> <p>2. Real Estate Agents: Compensation. Where a real estate broker contracts to produce a purchaser who 'shall actually buy, he has performed his contract by the production of one, financially able, with whom the owner actually makes an enforceable contract of sale. The failure to carry out that contract, even if the default be that of the purchaser,, does not deprive the broker of his right to commissions.</p> <p>3. -: -. Evidence in such a case examined, and held to sustain a finding for the broker.</p>

<p>Trial: Abandonment oe Count: Submission oe Issues. During a trial a plaintiff whose petition was drawn in two counts stated that he abandoned the second count except in so lar as averments in that count might be necessary to .complete the cause of action stated in the first count. Held, That it was error for the court thereafter to submit to the jury the determination of an issue relevant only to the second count.</p>

Error from t'be district court of Douglas county. Tiled below before Blair, J. The opinion contains a statement of the case. The indebtedness created under the guaranty was paid. (Phoenix Ins. Go. v. Church., 81 N. Y. 220; Slaymaker o. Gundacker, 10 S. & R. [Pa.]' 75; Bank of the United States v. Daniel, 12 Pet. [U. S.] 34; Cumber v. Wane, 1 Smith, Leading Oas. 633; Young v. .

<p>1. Note: Action by Indorsee: Consideration: Burden of Proof. If the only defense alleged in an action on a iiromissory note by an indorsee thereof is a failure of consideration, the burden is upon the defendant to overcome the presumption that the note was transferred before due for va'ue in the due course of business. (Crosby v. liitclwy, 47 Neb. 924; Violet v. Rose, 39 Neb. 660; Kelmcin v. Calhoun, 43 Neb. 157.)</p> <p>2. Instructions: Conflicting Paragraphs. If in a paragraph of the charge of a court to a jury there is contained a misstatement of the law upon a material point of the issue, the error is not cured by a correct statement thereof in another or other paragraphs. (Wasson v. Palmer, 13 Neb. 376; Fitzgerald v. Meya-, 25 Neb. 77; Ballard v. State, 19 Neb. 609.)</p> <p>3. -: General Statements. If the statements of the charge to the jury upon a material point are but general, a requested explicit explanatory instruction which is entirely pertinent and applicable to the issues and evidence should be given.</p>

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

<p>1. Action on Clieck: Limitation oe Actions. An action on a check by the holder ag-ainst the maker after demand of the drawee and non-payment is a suit on a written instrument, within the meaning- of section 10 of the Code of Civil Procedure, and the limitation is five years.</p> <p>3.--: Question op Pact: Directing Verdict. Held, That there were questions of fact- which should have been submitted tj the jury, and a peremxitory instruction of a verdict was erron.ous. •</p>

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

<p>Appeal: Time to File Transcript./ This court is without jurisdiction to hear a case on appeal unless the 'transcript of the record is filed here within six months after the rendition of the judgment or final order sought to be reviewed.</p>

<p>1. Bond, for Appeal: County Court. A bond given for the purpose of taking' an appeal from, a judg-ment rendered by a county court is not required to be signed by the appellant, but is sufficient if executed by a g-ood and sufficient surety alone.</p> <p>2. -: Attorney as Surety. A practicing attorney is not a proper surety on an appeal undertaking, but if be execute tbe same, tbe bond is not thereby rendered invalid.</p> <p>3. --: -: County Judge. A county judge has no authority to eliminate from the files an appeal undertaking which he has approved, because the bond was signed by a practicing attorney.</p> <p>4. --•: Renewal in Appellate Court. When an insufficient appeal bond is filed, the appropriate practice is to .move in the appellate court for an order requiring.a renewal of the bond by a time to be designated by the court, and in default thereof that the appeal be dismissed.</p>

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

<p>1. Murder: Evidence. Evidence examined, and held sufficient to sustain a verdict of murder in the first degree.</p> <p>2. -: --: Instructions. The fourth and thirteenth instructions were based upon the evidence adduced on-the trial.</p> <p>3. Witnesses: Impeachment. The order of introducing testimony designated by section 478 of the Criminal Code will not preclude a defendant from introducing, in a proper ease, testimony to impeach a witness examined by the state on rebuttal.</p> <p>4. Criminal Law: Order oe Introducing Testimony: Review. The order of introducing' testimony in a criminal case rests largely in-the discretion of the trial court, and an abuse of discretion in that regard is sufficient ground for reversal.</p>

Exceptions to rulings of the district court for Lincoln county, Grimes, J., presiding. Filed in the supreme court under the provisions of section -515 of tbe Criminal Code.

<p>1. Separate Contracts: Enforcement of Vendor’s Lien. Four separate and complete written agreements, contemporaneously executed, claiming no relationship with one another, and each evidencing the sale of one-quarter of a certain section of land, cannot, in an action to enforce a vendor’s lien, be treated as interdependent parts of a single, indivisible contract.</p> <p>2. Land Contract: Forfeiture: Waiver. An attempted forfeiture of a land contract will not be effective when both parties subsequently deal with the contract and the land as though there had been no rescission.</p> <p>3.-: Enforcement of Vendor’s Lien: Tender. In an action on land contracts to enforce a vendor’s lien an alleged tender by the defendant should be kept good by blunging the money into court.</p> <p>4. Equity: Findings and Decree. The findings and decree in an action in equity should respond to all the material issues presented by the pleadings.</p>

<p>1. Fraudulent Conveyances: Rights of Creditors. A sale or transfer oí property in fraud of tlie rights of creditors of the vendor is valid between the parties thereto; and it is void as to such creditors only to the extent that they are prejudiced thereby.</p> <p>2. Assignment of Chose in Action: Defenses. The assignee of a nonnegotiable chose in action takes it subject to all equities existing' between the original parties.</p> <p>3. Equity: Maxims. “He who seeks equity must do equity” and come into court with clean hands.</p> <p>4. -: Effect of Plaintiff’s Misconduct: Relief. A plaintiff who does not stand in conscientious relations towards his adversary, with reference to the claim which is the subject of the action, is not entitled to the a-id of a court of equity, and will be denied affirmative relief, although such claim does not arise out of an illeg-al transaction and is not tainted with actual fraud.</p> <p>5. —-•: -: -. If the plaintiff, or his assignor, has been guilty of any misconduct in connection with the transaction out of which the claim in suit arose, so that the enforcement of such claim would he harsh, unconscionable, and oppressive, a court of equity will either decline to grant any relief whatever or grant it on such terms as may be just and equitable.</p>

<p>1. Contracts: Parol Evidence. In an action between the xiarlies to a valid written contract it is a general rule of evidence that parol testimony touching- an -antecedent or contemporaneous agreement in relation to the same matter cannot be received to vary, add to, or subtract from the terms of the written instrument.</p> <p>2. Depositions: Presumptions on Appeal. Depositions filed in a lower court are presumed, in the absence of proof to the contrary, to have been transmitted to the district court within the time limited by the statute for that purpose. •</p> <p>3. -: -: File Mark. An objection to the reading- of depositions, based on the fact that they did not bear the clerk’s file mark showing that they had been filed more than one day before the trial, was properly overruled where it appeared that such depositions had been taken and used in 'the lower court and had been for a long time among- the files -of the case in the district court.</p> <p>I. Trial to Court: Evidence. Where a cause is tried without a jury, it will be presumed that the court considered only competent evidence in reaching a conclusion.</p>

<p>Mortgage Foreclosure: Limitation oe Actions. An action to foreclose a real estate mortgage, given to secure a note, bond, or other written evidence of indebtedness, may be commenced at toy time within ten years after the cause of action accrues.</p>

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

<p>Torts: Instructions as to Weight of Evidence: Sympathy. In an action for damag-es alleged to lidve been sustained by the wrongful act of the defendant, plaintiff is entitled to have the evidence considered by the jury uninfluenced by considerations of sympathy or public policy, and an instruction that these considerations may be properly taken into account in weighing the evidence is prejudiciously erroneous.</p>

<p>1. Freehold Estate: Inheritance. An estate less than a freehold is not an estate of inheritance, and a freehold estate is one of which possession, at the pommon law, could only be given by livery of seisin. Following Crawl v. Harrington, 33 Neb. 107.</p> <p>2. Estate of Curtesy. A surviving husband, whose wife died in 1877,' was not entitled to an estate of curtesy in lands in which she had a mere equitable estate at the time of her death.</p>

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

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

<p>1. Municipal Corporations: Water-Works: Contracts: Validity oe Ordinance: Parliamentary Law. The provisions of subdivision 15 of section G9, chapter 14, article 1, Compiled Statutes, empowering1 cities of the second class of less than 5,000 inhabitants to pass ordinances whereby such cities may make contracts with and authorize any person, company, of corporation to erect and maintain a system of water-works and water supply for a term of twenty-five years, and to furnish water to such cities, held to fall within the exception contained in section S9 of said chapter, and, consequently, that an ordinance of that nature duly-passed is valid, though not preceded by an appropriation to meet its requirements of payments of water rentals.</p> <p>3. -: ■—--: -: -. “Where an ordinance authorizing the erection of water-works and the supply of water through hydrants of a certain number and ait certain rentals was otherwise duly passed, held, that a suspension of the rule requiring1 it to be read only once on each, of three different- days unless this rule was suspended, was sufficiently complied with, where there were present four councihnen, all of whom voted for the suspension; the entire council consisting of six members, of whom one had resigned and another was absent when the suspension took place.</p>

<p>1. Telegraph. Companies: Error in Transmitting Messages: Damages. A telegraph oomx;any is .liable lor all damages sustained by reason of its failure to coi'rectly transmit and deliver a mes-sag-e received by it, notwithstanding an agreement printed on its blanks to the contrary. (Compiled Statutes, ch. 89a, sec. 12.)</p> <p>2. -:---. A messag-e was delivered to a telegrax>h company which read: “Attach xn'ox>erty of A for seven hundred ninety dollars.” The messag-e as delivered read: “Even hundred ninety dollars.” 1-Ieltl, That the recipient of the message was not guilty of negligence in interpreting the amount $190.</p>

<p>1. Attachment: Res Judicata: Property. The judgment of a court sustaining an attachment does not settle the stains of the attached property,—that is, it does not determine whether or not it was exempt from seizure on attachment.</p> <p>2. Exemption. The exemption provided for by section 521 of the Code of Civil Procedure was intended by the legislature to be an exemption in addilion to the property specifically exempted to the debtor by section 530 of said Code.</p> <p>3. -: Release of Levy: Action Against Sheriff. An officer sued by a creditor for releasing the property of his debtor which had been seized on attachment may successfully defend himself by showing that the property was as a matter o-f law specifically exempt from seizure.</p> <p>4. -: -: Appraisement. No statute exists requiring or authorizing the officer to have such property appraised before releasing it to the debtor.</p> <p>5. -: -: -. The axipradsal which section 522 of the Code requires to be made of property seized on judicial process, and claimed by the debtor to be exempt, has no 'reference whatever to property specifically exempted by section 530 of the Code.</p>

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

Error from the district court of Sarpy county. Tried below before Ambrose, J. An officer relying upon an offer of reward may be entitled to it when making an arrest under circumstances which do not require him to make the arrest as an official duty. (Hayden v. Sougcr, 56 Ind. 42; Davis v. Munson, 43 Vt. 676; Easting v. Morris, 71 Tex. 584.)

<p>Error from t'lie district court of York county. Tried below before Bates, J.</p>

<p>1. Deceit: Sales. Deceit, to ground a recovery, must relate to existing fads; but if one buy property on credit, witli the intention at the time of not paying- therefor, he is guilty of actionable fraud.</p> <p>3. -: -: Promise to-Pay: False Representations. In such case the fraud does not consist in the unfulfilled promise to pay. That is only the false token whereby the fraud is accomplished. The gist of the fraud is in the expressed or implied false representation of the intention to pay.</p> <p>3. --: Instructions: Evidence. Certain instructions and ruling's on evidence examined, and held to be free from prejudicial error.</p> <p>4. Vendor and Vendee: Eraud oe Vendee: Damages. In an action for damages by a vendor of land for fraud practiced by the vendee, the evidence establishing that the fraud did not induce the plaintiff to part with his land for less than he was willing to take uninfluenced by the fraud, but consisted in inducing him to sell at an acceptable price, the vendee intending' to evade payment, held, that the measure of damages is the price agreed upon less wha.t the vendor may have received, and not the value of the land less such receipts.</p> <p>5. Deceit: Action for Damages: Ratification of Contract. An action for damages for deceit inducing a contract ratifies the contrast, and the defendant may set off against the damages awarded plaintiff any sums due defendant growing out of the transaction and accruing under the contract.</p> <p>6. Conflict of Laws: Foreign Note: Usury. Notes made and payable in another state -and stipulating for a higher rate of interest than is here lawful will be enforced according to their terms in the absence of a plea of usury.</p>

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

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

<p>Estoppel: Pmsadiito. The facts from which an estoppel in pain ¡vi-es, to.be available as such, must be pleaded, a.t least where there is an opportunity to so plead.</p>

<p>1. Assignments of Error: Instructions. If of the giving of more than one instruction there is an assignment of error in gross in the motion for a new ti-ial, and one of the instructions is determined proper,.no further examination of the assignment need be made.</p> <p>2. -: Rulings on Evidence: Record. An assignment of error in the petition was of the admission of the evidence of a witness as set forth on a designated page of the bill of exceptions, and an examination developed the fact that no objections were interposed to any interrogatories .or any evidence shown on the stated page of the record. Held, To present no matter for consideration or decision.</p> <p>3. Instructions: Review. An instruction which ignores a proposition material to the conclusion which it announces may, under certain findings, be reached for one of the parties, is erroneous.</p>

<p>1. Sheriff: Sale After Expiration of Term: of Office. A sheriff to whom an order o£ sale has been issued, and who has commenced the execution of the same during his term of office, may complete the service after the expiration of such time.</p> <p>2. Judicial Sale: Notice: Proofoe Publication. A purported affidavit of proof of publication of notice of sale of land under an order of sale is not sufficiently aútlientieated if it lacks tlie signature of an officer to tlie jurat.</p>

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

<p>1. Review: Parties: Joint Judgment. All parties to a joint judgment must be joined in error proceedings tliereírom, and a nonjoinder is a fatal defect in the proceedings; but if the objection is delayed until the final submission of the cause on its merits, the defect is waived.</p> <p>3. -: ■—■--; -: Jurisdiction. Where a judgment in terms is inclusive of and against two parties; in an action in which a several judgment might have been proper, and of one party so embraced by the judgment the court had no jurisdiction, such judgment may be affirmed as to the one defendant of whom there was jurisdiction.</p> <p>3. Cross-Examination: Review. Exclusion of testimony as improper during cross-examination, examined and adjudged not erroneous.</p> <p>4. Instructions: Repetitions. It is not error to refuse an instruction, the subject-matter of which is fully covered by one given.</p>

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

Error from tire district court of Douglas county. Tried below before Hopewell, J. Tbe facts are stated in tbe opinion. Tbe introduction in evidence of tbe newspaper article for the purpose of fixing upon insurer knowledge of liens on the insured property, in absence of testimony that insurer’s agents saw the article, was prejudicial error.

<p>1. Larceny: Information. An averment in an information that the accused, from the person of the prosecuting witness, unlawfully and feloniously, did steal, take, and carry away certain property belonging to such witness sufficiently charges that the talcing was against the will of the owner.</p> <p>2. -: CoiKPtrs Delicti: Evidence. To sustain a conviction for a crime the corpus delicti must be proven beyond a reasonable doubt. Rule applied.</p> <p>3. -:--: -. Evidence examined, and held to sustain a conviction of the crime of larceny from the person.</p> <p>4. Criminal Law: Confessions oe Accused. When the offense charged in an information has been fully established by competent evidence, the free and voluntary statement and confessions of the accused may be proven for the purpose of connecting' him with the crime.</p> <p>5. Credibility of Witnesses. It is not error to instruct a jury that they must alone determine the credibility of witnesses, and that in doing so it is proper to consider the interest, if any, of a witness in the result of the suit, and his demeanor upon the stand.</p> <p>6.-: Jury. A jury is not bound to -accept as true everything testified to by a witness, though unimpeached.</p> <p>7. Evidence: Instructions. It is not error to refuse an instruction which has the effect to withdraw from the consideration of the jury competent material evidence in the case. '</p> <p>8. -: -: Review. Error cannot be predicated upon the refusal of an instruction which is not applicable to the evidence.</p> <p>9. Eailure to Request Instructions. A party cannot usually be heard to complain of the failure of the court to instruct upon a particular feature of the case where he has not requested a proper instruction upon the subject.</p>

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

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

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

<p>1. Evidence: Admission or Party. On the tpial of a cause an admission by one ol the parties, of the existence of a judgment which it was incumbent on his adversary to prove, held to imply that such judgment was valid.</p> <p>S. Fraudulent Conveyances: Evidence. Evidence examined, and held insufficient to sustain a finding that the sale through which plamtdfl: claims title to the property in dispute was fraudulent as to her vendor’s creditors.</p>

<p>1. Estates: Tenant eor Life: Taxes. As between the life tenant and the owner of the fee, it is the clnty of the former to pay all taxes charged against the land during the continuance of his estate.</p> <p>3.Lien of Taxes. The revenue law of 1871 declared real estate taxes to be a perpetual lien on land against which they were levied. By subsequent legislation this lien has been preserved and continued in force.</p> <p>3. Taxes: Collection. It was made the duty of the county treasurer by section 50 of the act of 1871 to collect delinquent real estate taxes by seizure and sale of the owner’s chattels, if any could be found.</p> <p>4. -: Lien on Realty: Collection: Neglect oe Collector. But tbe failure of the treasurer to discharge such duty by distraining the personalty of the life tenant did not divest the lien of the taxes from the reversioner’s interest in the land.</p> <p>5. -: -: -: -. Since 1S77 the county treasurer has possessed no authority to sell personal proiierty for taxes assessed against real estate prior to that time.</p> <p>6.-: Irregularities oe Assessor. The failure of an assessor to attach his oath to, and return the same with, the assessment roll are mere irregularities which do not affect the validity of the lax.</p> <p>7. Officers: Pereormance oe Duties: Presumptions. In the absence of evidence t.o the contrary, it will be presumed that a public officer proceeded regularly and performed his official duties within the law and in obedience to its mandate.</p> <p>8. Taxation: Equalization: Valuation: Increase. Where a board of equalization, without authority, increases the valuation of real estate as fixed by the assessor, the taxes apportioned against such real estate will be valid only to the extent that they are based on the original assessment.</p> <p>9.-: Description oe Realty. Where part of a city lot is condemned by a railroad company for its right of way, the remainder is sufficiently described, for purposes of taxation, as a fractional lot.</p> <p>10. -: -. A tax is void for uncertainty which is assessed and levied against an entire city lot under the description, “part of lot 5, in block 41.”</p> <p>11. -: -: Validity cot Assessment. A tax based on an assessment en masse of contiguous lots which, are, so situated as to be incapable of separate valuation is not void, and affords no just- ground of complaint to the owner whose personalty was liable for the tax at the time the same was levied.</p> <p>13. -: -. Where land owned by one person is assessed with the land of another, under one aggregate valuation, so that neither owner can determine the amount for which his property is liable, the entire tax is void.</p>

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

<p>1. Judgment: Vendor and Vendee: Covenant oe Warranty. One who purchases land charg-ed with the lien of a judgment, which is specifically excepted from the covenants of warranty contained in the deed through which he claims title, canuo-t insist that his grantor's chattels shall be exhausted before such land is sold for the satisfaction of an execution issued on the judgment.</p> <p>3. -: Evidence: Review. Where a judgment or final order results from the trial of an issue of fact, this court will not, in an error proceeding, in the absence of a motion for a new trial, examine the evidence and pass ujion its sufficiency to justify the conclusion reached.</p> <p>3. Review: Joint Assignment oe Error. A joint assignment of errors in a petition In error, made, by two or more parties to an action, will be overruled unless it can be sustained as to all who join therein.</p>

<p>1. Married "Woman: Liability as Surety. In an action against a married woman on a note executed "by her as surety for another, coverture is a complete defense, unless it be shown that such note was made with the intention on her part of binding her separate estate for its payment.</p> <p>2. -: -: Separate Estate: Evidence. Evidence examined, and held sufficient to sustain the finding of the trial court that the note in suit was not made with reference to, nor upon the credit of, defendant’s individual property.</p>

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

<p>1. Negligence of Attorney: Action for Damages: Evidence. In an action against attorneys at law for damages because of their 'alleged failure to obtain, upon appeal, the modification of a decree in like manner with others of the parties who did appeal, a failure of the evidence to show like conditions held to justify the supreme court’s refusal to disapprove of an instruction of the district court to find for the defendants.in such action for damages.</p> <p>2.--: Opinton: Mistake: Damages. The expression of an opinion as to the probabilities of realizing a certain sum upon the sale of real property is not such afi exxiression of oxfinion as renders liable 'an attorney at law because of a mistake in such estimate.</p>

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

<p>Descent and Distribution: Personalty. Under the provisions of section 30 and section-176, cbivpter 33, Compiled Statutes, the personal property of a childless intestate, after the payment of his debts, descends to his widow, to the exclusion of his brothers and sisters who survive him and the children of other brothers and sisters whom he had survived.</p>

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

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

<p>1. Notes: Conditions: Indorsements. A condition or memorandum written in or indorsed on a promissory note by the maker prior to its delivery is a substantive part of such note.</p> <p>2. -: Time oe Payment: Negotiability. A contract for the payment of money, to be negotiable, must, among other things, be payable at some time or other, though it may be uncertain when that time will arrive.</p> <p>3.-:-: •-. A promissory note reading, “six months after date, if elected county commissioner, I promise to pay,” etc., is not a negotiable instrument.</p> <p>4. —;-:-: Wager: Public Policy. Such a note is a contract of wager un the result of an election. Its enforcement would tend to the detriment of the public g'ood, and on grounds of public policy it is held to be absolutely void.</p>

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

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

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

<p>, 1. Pleading: Failure to File Answer: Estoppel: Review. A party to an action who has failed to answer the petition of another party, stating- a cause of action against him, cannot be heard on •appeal to question the correctness of a judgment entered on such petition, although other parties put its averments in issue and it was not sustained by the proof.</p> <p>2. Mortgages: Delivery: Contract. A executed a note and mortgage to B for the purpose of obtaining a loan from the latter. They were delivered to C, who was to act as an intermediary. B refused to make the loan, whereupon C advanced to A the money from the funds of a bank of which C was cashier. The bank retained the note and mortgag-e without change and without redelivery, A not knowing how.the loan was effected. Held, That the mortgage was inoperative, there being no consensus, and there never having been an effectual delivery.</p> <p>3. -: Prior Liens: Estoppel. A mortgagee is not estopped from assailing the validity of an apparently senior lien by a mere exception from the mortgiagor’s covenant against incumbrances of a class of liens which would include that assailed if it were valid.</p> <p>4. --: National Banks: Usury: Estoppel. A national bank took as security for a debt, partly pre-existent and partly created at the time, a real estate mortgage, naming- an individual, an officer of the bank, as mortgagee. The transaction was usurious. Held, That having given the transaction the form of one with an individual for the purpose of evading the liabilities peculiar to national banks, the bank could not be heard to assert its true nature for the purpose of evading the liabilities attaching- to individuals and of claiming the privileges of national banks.</p>

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

Error from the district court of York county. Tried below before Wheeler, J. The opinion contains a statement of the case. References as to insufficiency of petition: Campbell v. Morrison, 7 Paige [N. Y.] 157; Banlc of Orleans v. Slcinner, 9 Paige [N. Y.] 305; Peltonv.

Original application for mandamus to compel the governor to conduct personally a trial of charges against certain members of the board of fire and police commissioners of the city of Omaha.

■Original application for mandamus to compel the county clerk of Nuckolls county to insert in the official ballot the name of a candidate selected by the republican county central committee to fill a vacancy on the ticket nominated by the republican county convention..

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

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

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

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

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

<p>1. Mechanics’ Liens: Statement: Registration. To entitle a subcontractor to a mechanic’s lien he must file his sworn statement or claim for lien with the register of deeds of the proper county.</p> <p>2. .--: -: -. In our mechanics’ lien law “filed- in the office of the register of deeds” and “filed with the register of deeds” ■are equivalent expressions and are used interchangeably therein.</p> <p>3. -: -: -. The proper filing of a claim for a mechanic’s lien consists in placing the sworn statement in the custody of, and leaving the same with, the proper officer for the purpose of recording-.</p> <p>4-. -: -:--. The failure of a register of deeds to record the sworn statement of claim of lien filed does not affect- the validity of the lien. All the lienor is required to do to perfect Ms lien is to file the verified claim in seasonable time with the proper officer. The actual recording- thereof is not a prerequisite to securing the lien.'</p> <p>5. -: Times oe Furnishing Material: Contract. Each order and delivery of material made at different times does not necessarily constitute a separate contract. To constitute a single contract it is not necessary that the materials should all he furnished at one time, but may be obtained at different times and still be embraced in a single contract, if such was within the contemplation of the parties.</p> <p>6. -:--: -. When certain materials are to be furnished to he used for the construction of a building for a stipulated sum, and at the time the contract therefor was made it was agreed that all additional materials required to complete the improvement should he furnished by the material-man at, and for, the prices previously charged by him for like articles, and in pursuance thereof additional materials are ordered and delivered from time to time during the progress of the work, all items may properly be regarded as having been furnished under a single contract.</p>

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

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

<p>1. Eraud: Proof. Eraud is never presumed, but must be established by the party alleging- it by clear and satisfactory evidence.</p> <p>3. Action on Covenant of Warranty: Pleading. In an action to recover damag-cs for breach of covenants of warranty of title it is essential to allege in the petition that plaintiff has been evicted by title paramount.</p>

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

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

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

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

<p>1. Unauthorized. Acts of Agent: Ratification by Principal. The unauthorized transaction of an ag-ent must be either adopted or rejected, by his principal, as a whole. Incident to the acceptance of the benefits of an agency is the assumption of its burdens. •</p> <p>2. ———: -. A principal will generally be held to have ratified the ■ unauthorized acts of his agent by knowingly accepting and retaining- the benefits of such acts.</p> <p>3. Harmless Error. Where the verdict returned is clearly right and is the only one warranted by the evidence, the judgment will be -affirmed, although errors may have intervened at the trial.</p>

<p>1. Title of Landlord: Denial by Tenant: Estoppel. It is a general rule of law that a landlord’s ownership of demised premises cannot he denied by his tenant while the latter is. in possession under the lease; and this principle is applicable to every case in which an entry upon land has been effected by the permission of the owner and in recognition of Ms title.</p> <p>2. Landlord and Tenant: Adverse Possession. A tenant remaining in possession of the demised property after the expiration of his term, without any open or exin-ess' repudiation of the relation created by the lease, is not, in contemplation of law, holding adversely to the owner, whatever may be Ms secret intention.</p> <p>3. Partition: Conflicting Titles. In an action for the partition of real property among several co-owners, the district court cannot properly adjudicate upon conflicting legal titles.</p> <p>4. -: -: Decree: Estoppel. But if, in such case, the issue is tried without objection, and the disputed title conclusively established in favor of one of the parties, the other will not be heard to question the correctness and binding force of the judgment.</p> <p>5. Tenants in Common: Purchase oe Outstanding Title: Contribution. The purchase by a tenant in common of an outstanding title to, or incumbrance on, the joint estate inures to the common benefit; and the purchaser is, in such case, entitled to contribution from Ms co-tenant.</p> <p>6. -: -: -. But this rule is not applicable to the purchase of a title or incumbrance by one of the parties before becoming a tenant in common with the other. .In such case, the acquisition being neither actually nor constructively for the benefit of any future eo-oiwner, tbe right of contribution does not arise. „ “</p> <p>7. Tax Liens: Foreclosure: Limitation oe Actions. An action to enforce a tax lien becomes barred at the expiration of five years from the time the cause of action, accrued; and, where a void tax deed has been issued to the lien claimant, the issuance of the deed and the failure of the title which it assumes to convey are concurrent events.</p> <p>8. -: -: -. When the right to enforce a tax lien by action is barred, the lien itself is extinguished and ceases to be a charge upon the land.</p> <p>9. Tenants in Common: Improvements: Partition. Where one tenant in common has had exclusive possession of the joint estate, ■and has made lasting and valuable improvements thereon, without consulting- his co-tenant, there should, in partition, be allotted to him the portion of the property on which such improvement's are situated, if that can be done without prejudice to tbe rights of his co-owner.</p> <p>10. -: -: -. If, in such case,.the property is not susceptible of physical division, it should be sold and the proceeds divided after deducting therefrom, for the benefit of the party in possession, such sum as the court shall determine the salable value has been enhanced by the improvements.</p> <p>11. -: Lease: Possession. A tenant in common who leases the interest of his co-tenant and remains in possession after the expiration of the term, discharging the obligations imposed upon him by the contract, will be presumed to be holding under tbe lease and subject to its provisions, in tbe absence of evidence indicating a surrender of the demised interest or termination of the tenancy by mutual consent.</p>

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

Error from the district court of Lancaster county. Tried below before Hall, J. Cases cited by counsel are discussed -in the opinion.

<p>1. Statutes: Evidence oe Enactment. The certificate of the presiding officer of a branch of the legislature that a bill has duly passed the house over which he presides is merely prima facie evidence of that fact, and evidence may be received to ascertain whether or not the bill actually passed. Eollowing State v. McLellancl, 18 Neb. 236.</p> <p>2.-: -: House Journals. The journals of the respective houses are records of the proceedings therein, and if it. should appear from them that a bill had not actually passed, the presumption in favor of the certificate would be overthrown and the act declared invalid. Eollowing State v. HeLelland, 18 Neb. 236.</p> <p>3. -: Action eor Damages: Judgment on Pleadings. Where a 'defendant pleaded as a defense to a claim for damages non-compliance with a statutory condition precedent indispensable to a right to maintain such action and plaintiff pleaded in avoidance of the alleged statute that it had never been introduced into either branch of the legislature, and that no bill of the same title or of similar import had ever been read, passed, or voted upon in either of such branches, held, that a motion for judgment in favor of the defendant upon the pleading-s was improperly sustained.</p>

<p>Bill of Exceptions: Omissions: Review. The entire omission from the hill oí exceptions of evidence necessary to sustain an essential controverted averment oí appellant’s petition necessitates the affirmance of the judg-ment of the district court.</p>

<p>Review: Conflicting Evidence. A ruling of the clistrict court upon fairly conflicting evidence will not be disturbed on appeal.</p>

<p>Appeal from the district court of Douglas county. Heard below before Ambrose, J.</p> <p>References: 'Louisville Banicing Co. v. Eisemnan, 94 Ky. 88; Swift v. Smith, 65 Md. 428; Russell v. MLellan, 14 Pick. [Mass.] 63; Neioton Mfg. Co. v. White, 47 (la. 400; Lehigh Bridge Co. v. Lehigh Coal & Navigation Co., 4 Rawl-e [Pa.] 9; Burleigh v. Piper, 51 la. 650; Shaw v. Robinson, 50 Neb. 403; Tillson v. Doiming, 45 Neb. 549; Allison v. Brandt Printing Co., 37 S. W. Rep. [Tenn.] 10; Ingioersen v. Edgecombe, 42 Neb. 740; Campbell Printing Press & Mfg. Co. v. Harder, Luse & Co., 50 Neb. 283; Wyman v. National Bank of Commerce-, 51 Neb. 636; Roseboom v. Whittaker, 132 111. 81; Sutton Mfg. Co. v, Hutchinson, 63 Fed. Rep. 496,</p> <p>References: Harrington v. Conner, 51 Neb. 211; Waliados v. Robinson, 50 Neb. 169; Capps v. Hastings Prospecting Co., 10 Neb. 170; Haas v. Bank of Commerce, 11 Neb. 751; Watts v. Qannt, 12 Neb. 869; Sunday Creek Coal Co. v. Burnham, 52 Neb. 361; Landis v. Loans, 113 Pa St. 335; Hickman v. Caldwell, 1 Rawle [Pa.] 376; McCoy v. Reed, 5 Watts [Pa.] 302; Alabama Gold Life Ins. Co. v. McCreary, 65 Ala. 127; Matthews v. Mobile Mutual Ins. Go., 75 Ala. 85; Walpole v. Ink, 9 O. St. 112; Ballin v. Merchants Exchange Bank, 89 Wis. 278; Sanford Fork & Tool Go. v. Hoice, 157 IT. S. 312.</p>

•Error from tbe district 001114; of Douglas county. Tried below before Hopewell, J. Tbe opinion contains a statement of tbe case. Tbe company is not liable, for tbe reason that tbe person to w'bom tbe policy was issued bad previously sold and transferred tbe propierty. (Tollman v. Atlantic Fire & Marine Ins. Go., 29 How. Pr. [N. Y.] 86; Grosvenor v. Atlantic Fire Ins. Go., 17 N. Y. 892; Bickoell v. Northwestern Ins. Go., 19 N. Y. 179; Davis v. Home Ins. Go., 24 U. 0.

<p>1. Unlawful Sale of Intoxicating Liquors: Jurisdiction oe Courts. Neither a justice of the peace nor a county judge has jurisdiction to try one charged ivit-h selling intoxicating liquors contrary to section 11, chapter 50, Compiled Statutes.</p> <p>2. County Court: Jurisdiction: Crimes. The criminal jurisdiction ot a county court or county judge is the sa.me as that of a justice of the peace.</p> <p>3. -: .-: -. Section 16, article 6, oí the constitution does not invest the county conrts oí the state with any criminal jurisdiction whatsoever, but authorizes the legislature to define the criminal jurisdiction oí such courts within certain limitations.</p> <p>4. -: —-: -. The ccmnty courts oí the state have not by the legislature been invested with any criminal jurisdiction, except as above stated.</p>

<p>1. Criminal Law: Separate Trials: .Presence of Accused. Where two piarties jointly indicted are tried separately, it is not error for the court to require the presence of one of them in the court room during- the trial of the other.</p> <p>3. Indictment: Different Criminal Acts: Larceny. Different criminal acts which constitute part of the same transaction, such as burglary with intent to steal particular property and larceny of the property described, may be charged in the same indictment or count thereof. Lawhead v. State, 46 Neb. 607, followed.</p> <p>3. Burglary: Larceny: Circumstantial Evidence: Instructions. On the trial of a prisoner for burglary and larceny, where the evidence against the accused was circumstantial, the court instructed the jury: “Circumstantial evidence is leg-al and competent in criminal cases, and if it is of such a character as to exclude every reasonable hypothesis other than that the defendant is guilty, it is sufficient to authorize a'conviction.” Instruction approved.</p> <p>4. --:--: -: -. On such trial the court also instructed the jury: “What is meant by circumstantial evidence, in criminal cases, is the proof of such facts or circumstances connected with or surrounding the commission of the crime charged as tend to show the guilt or innocence of the party charged; and if these facts and circumstances are sufficient to satisfy the jury of the guilt of the defendant beyond a reasonable doubt, then such evidence is sufficient to authorize the jury in finding- a verdict of guilty.” Instruction approved.</p> <p>5. New Trial: Newly-Discovered Evidence. A new trial should not be granted a party on tbe ground of newly-discovered evidence, unless lie makes it appear that the newly-discovered evidence is material for him, and that he could not by the exercise of reasonable diligence have discovered and produced it at the trial.</p>

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

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

<p>Error from the district court of Lancaster county. Tried below before Hall, J.</p> <p>See opinion for references to cases.</p>

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

<p>1. Replevin: Dismissal. A plaintiff in replevin may not, after obtaining- the property under the writ, dismiss the case without defendant’s consent.</p> <p>3. Dismissal. A case cannot be dismissed at the-instance of a party who may be liable to a judgment therein, against the objection of his adversary, although the recovery might be only for nominal damages.</p> <p>3. Replevin: Joint Plaintiffs: Dismissal. Two persons joined as plaintiffs in an action of replevin and took the property under the writ. They claimed a concurrent right of possession, but by several titles. One recovered judgment. Held, That the other could not thereupon dismiss the case as to himself, without the consent of the defendant.</p>

<p>1. Revivor of Action: Res Judicata. When a revivor of an action is sought by conditional order, the hearing- in pursuance thereof is the proper occasion to try the right of the successor in whose name revivor is attempted. By the absolute order that matter becomes res judicata and cannot be retried with the case on its merits.</p> <p>2.- -—: Service oe Process: Attorney oe Record. Service of a conditional order of revivor must be in the same manner as a summons, and it seems that service upon the attorney of record is insufficient unless a summons may be so served.</p> <p>3. Appearance: Authority oe Attorney. The authority of an attorney who actually enters an appearance will be presumed to justify him in so doing.</p> <p>4. Revivor: Waiver oe Process. A failure to serve a conditional order of revivor goes only to the jurisdiction of the person, and is waived by a voluntary general appearance.</p> <p>5. -: New Party: Pleading. When a cause has been revived by conditional order duly made absolute, it is not essential that amended or supplemental pleadings be filed alleging the capacity of the new party, as such averments would not be traversable and the fact already appears of record.</p> <p>6. -: -: -. For the same reason it is proper to refuse ‘the adverse party leave by supplemental pleading's to tender an issue based on the matter of revivor.</p> <p>7. Comparative Negligence: Instructions. The doctrine of comparative negligence has no place in the jurisprudence of this state, kt is therefore error to instruct the jury that plaintiff may recover, although guilty of contributory negligence, provided the negligence of defendant was gross and that of plaintifi slight in comparison.</p> <p>8. Conflicting Instructions. A positive misstatement of the law in an instruction is not cured by a further correct statement in conflict with the first.</p> <p>9. Expert Testimony: Competency. Expert testimony is incompetent where the subject of inquiry is of such a character as to be within the knowledge of men of common education and experience and to call for no special skill, knowledge, or experience,</p> <p>10. -: Hypothetical Questions. A hypothetical question should not he permitted when it only in part calls for the exercise of special skill or knowledge, and for the rest asks the witness to base his opinion on matters within the ordinary experience of men.</p>

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

Error from the district court of Adams county. Tried below before Beall, J. The facts are stated by the commissioner. Where the misconduct of a juror is of such a nature that prejudice might have resulted from it, a presumption of prejudice arises, which, unless rebutted by the successful party, will require the granting of a new trial. (2 Thompson, Trials 1981; Johnson v. Root, 2 Clif. [U. S.J 108; Nesmith v. Olinton Fire Ins. Go., 8 Abb.

Error, from tbe district court of Lancaster county. Tried below before Hall, J. Tbe facts are stated in tbe opinion. Tbe city charter, as amended in 1889, makes tbe lot owner liable primarily and casts obligation on bim to keep tbe walk in repair, and thereby relieves tbe city of liability. (Arhadelphia v. Windham, 49 Ark. 139; Winbijler v. City of Los Angeles, 45.

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

<p>1. Corporations: Liability oe Stockholders. Within the common-law rule there was no individual liability of stockholders in a corporation for its debts.</p> <p>2. -: —-: Constitutional Law. Our constitution states and also limits the liability of a stockholder in a corporation for its debts. (See Constitution, art. 11, sec. 4, Miscellaneous Corporations.)</p> <p>3. -: -: --. The liability of a stock subscriber for corporate debts, except of a banking corporation, is measured by his unpaid stock subscription.</p> <p>4. -: -: Contribution. A voluntary assumption of the debt of a corporation, or a voluntary .payment of its debt, or the two in combination, will not alone confer on a stockholder of the corporation the right to contribution from the other members.</p> <p>5. -■: --: -: Assumption oe Debt. An agreement by stockholders of a corporation to indemnify one for the personal assumption or payment of a corporate debt, or to contribute, may be enforced.</p> <p>6. -: -: -: -: Evidence. .The evidence herein held insufficient to sustain a finding of such a promise or agreement by some of the stockholders of a corporation of indemnity or contribution to other of the stockholders for the assumption or payment of corporate debts by the latter.</p>

Heard below before Bates, J. The opinion contains a statement of the case. August Lind did not, by writing signed in presence of a competent witness, acknowledge himself to be the father of plaintiff, within the meaning of section 31, chapter 23, Compiled Statutes. (Hunt v. Hunt, 37 Me. 333; Estate of Sanford, 4 Cal. 12; 24 Am. & Eng. Ency.

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

<p>1. Testimony and Evidence: Definitions. “Testimony” and “evidence” are not synonymous terms. Tlie latter is the generic term, and the former applicable to a species or kind of evidence.</p> <p>2. Bill of Exceptions: Presumptions: Evidence. If a bill of excep-' tions which purports to contain all the evidence is submitted to the adverse party for examination and amendment, and he returns it with an indorsement that he has no amendments to propose, it will be presumed to contain all the evidence. (Cattle v. Eaddox, 14 Neb. 59.)</p> <p>3. -—: Authentication. The use of the word “testimony” for “evidence” in the certificate of the trial judge in the allowance of a bill of exceptions, if t'he meaning is obvious, or it is clear that the latter is intended, will not render the document inoperative.</p> <p>4. Action on Check. A check upon a bank by a depositor operates a transfer of its amount to the payee if on deposit at the time of presentation, and the payee or holder may, on refusal of payment, maintain a suit on the instrument for the recovery of its stated sum.</p> <p>5. Banks and Banking: Applying Account to Depositor’s Debt: Checks. As against the holder of a check against an account of a depositor the bank of deposit may not apply the amount of the account to the payment of the indebtedness of the depositor to the bank which is not yet due, although the depositor may be insolvent.</p> <p>6. Pleading: Inconsistent Defenses: Estoppel. Two defenses irreconcilably inconsistent may not be enforced, and the position assumed by the party prior to the suit relative to the facts and circumstances involved in the transactions drawn into question will prevail.</p>

<p>X. Conflicting Evidence: Review. In an appeal to this'court the findings of a trial court, if upon conflicting evidence, will not be disturbed unless clearly wrong’.</p> <p>3. Partnership: Definition. “Copartnership is a contract of two or more competent persons to place their money, effects, labor, skill, or some or all of them, in lawful commerce or business, and to divide the profits or bear the loss in certain proportions. Following Kent’s definition, 3 Comm. 34.” (Waggoner v. First Nat. Bank 0† Creighton, 43 Neb. 84.)</p> <p>3. -: Community oe Interest. A community of interest in the profits as such, of a business venture, and not by way of payment or compensation for services or other assistance therein, may be sufficient to constitute a copartnership.</p>

<p>1. Impaneling Jury: Review oe Rulings. Retention or rejection of a juror, during the impaneling- of a jury, to whom an objection has been interposed, is a matter within the discretion of the trial judge, and in the absence of an abuse of such discretion will furnish no available error.</p> <p>2. New Trial: Ruling on Motion: Exception: Review. To obtain a review in this -court of questions raised in a motion for a new trial an exception must be taken at the time of the decision to the overruling of said motion.</p> <p>3. Construction of Code. The Code of Civil Procedure, in all its provisions and all proceeding’s under it, must be liberally construed, with a view to promote its object and assist parties in obtaining justice. (Code of Civil Procedure, seo. 1.)</p> <p>4. Review: Exception to Judgment. To obtain a review of the proceeding’s of the trial court in a suit an exception to the final judgment is unnecessary.</p> <p>5. New Trial: Ruling on Motion: Exception: Review. A journal entry disclosed the presentment of a motion for a new trial. In the same entry was stated that defendant moved for judgment, also the rendition of the same,—folio-wing all of which there appeared this: “To all of which plaintiff duly excepts.” Held, Sufficient -evidence of the excexi-tion to the action of the court on the motion for a new trial, although somewhat questionable practice to have the exception so noted.</p> <p>6. Instructions: Record eor Review. The instructions to a jury are proper matters of the record, and need not, in general, be preserved in the bill of exceptions.- (Blumer v. Bennett, 44 Neb. 873.)</p> <p>7. Exception: Record. Taking an exception is an act of counsel in court. The evidence of the act i-s its notation of record. (Blumer v. Bennett, 44 Neb. 873.)</p> <p>8. Instructions: Exceptions: Record eor Review. A prepared statement in writing of t-he exceptions to the giving specifically designated instructions, also to refusals to give requested ones duly filed -at the proper time, indorsed by the trial judge “allowed,” and authenticated as a part of tlie proceedings, held tp furnish evidence of the exception having- been made and to not be an improper manner of notation; also properly of the record.</p> <p>9. -: Evidence: Review. Instructions to a jnry which leave that body at liberty to infer or find facts as existent, of which there is no evidence, are erroneous, and such errors, unless without prejudice, furnish g-round for reversal of a judgment.</p> <p>10. Action on Bond of State Treasurer: Verdict eor Defendants: Evidence: Instructions. The verdict, insomuch as it was necessarily based on a neg-ative finding- upon one of the issues in relation to an alleged failure or default of a state treasurer in the performance of 'the obligations of his official bond, determined not sustained by sufficient evidence, contrary to the evidence, the instruction of the court, and the law.</p>