Volume 57 — Nebraska Reports

<p>1. Ejectment: Plaintiff’s Title. A plaintiff in ejectment cannot rely on a defect in .the title of his adversary, but must' recover, if at all, on the strength of his own title or right to the property.</p> <p>2. Clerk of Court: Authentication of Transcripts. Ordinarily, the clerk of one court has not the authority to authenticate transcripts of the records kept by another court.</p> <p>3. Evidence: Transcript of Record: Authentication. A transcript of the record of a foreign court is not admissible in evidence, unless authenticated according to the provisions of section 414 of the Code of Civil Procedure.</p> <p>4. —:-: Record of Entry on Government Land: Transcript. One cannot invoice section 62, chapter 73, Compiled Statutes, unless he has complied with the provisions thereof.</p> <p>5.-: Indorsements on Documents. The introduction, in evidence of an instrument or document will not cara'3'' with it the indorsements thereon, unless the offer is sufficiently broad to include them.</p>

<p>1. Void Sale for Portion of Taxes. A tax sale is invalid where it was not made for all delinquent taxes against the land, with interest and costs.</p> <p>3.-: Lien jtor Other Taxes. A sale of land for taxes dne for one year does not discharge those levied and delinquent for previous years.</p> <p>3. Tax Sale: Return oe Treasurer: Private Sale. A private sale of real estate for taxes is invalid where the treasurer has failed to make return to the county clerk of the public sale required by statute.</p> <p>4. Void Tax Sale: Rights oe Purchaser: Subrogation. Where a tax sale is invalid, the purchaser is subrogated to the rights of the public to the Hen for the taxes and for all legal prior and subsequent taxes levied against the property, by him paid, with interest at the same rate which the taxes were drawing when paid.</p> <p>5. Taxes: Fraudulent Levy: Evidence. Evidence examined, and held insufficient to establish that the levy of county taxes for 1893 was fraudulent and excessive.</p> <p>6.-:--: Remedy. Where a taxpayer is dissatisfied with the assessment of his property, he should apply to the board of equalization‘for relief.</p> <p>7. Pleading: New Matter. New matter relied upon as constituting an affirmative defense to a cause of action must be pleaded in the answer.</p> <p>8. -: -: Taxes: Foreclosure oe Lien. In a suit to fore- ■ close a tax lien the defense that the levy for county purpose exceeded the constitutional limit is not available, unless raised by suitable averments in the answer.</p> <p>9. Metropolitan Cities: Levy oe Special Taxes. A city council of a metropolitan city cannot lawfully pass an ordinance levying- special taxes until, as a board of equalization, it has determined the sum to be assessed against the real estate as benefits.</p> <p>10.-: Equalization oe Taxes: Notice. Notice of tie sitting of the city council as a board of equalization, under sections 73 and 85, chapter IS a, Compiled Statutes 1887, “for at least six days prior thereto” by publication in the official paper, is a prerequisite to legal action.</p>

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

Error from the district court of Lancaster county. Tried below before Hald, J. The opinion contains a statement of the case. The death of the principal terminated the agency, and subsequent payment to the agent did not discharge the debt or release the maker of the note.

<p>Error from the district court of Douglas county. Tried below before Fawcett, Dioicinson, and Baker, JJ.</p>

■Error from the district court of Douglas county. Tried below before Ambrose, J. The opinion contains a statement of the case. As to Pritchett or his assigns, Coffman bore no different relation to the note than Morrison, Meadimber, or Boyd. Where one, not the payee, writes his name on the back of a promissory note before delivery, he is a maker and held as though he had signed on its face.

Original application for mandamus to compel respondent to omit from official ballots, the names of persons whose nominations were invalid.

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

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

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

<p>1. Voluntary Assignments: Other Conveyances: Powers oe Assignee. An assignee under a deed of general assignment cannot, without the written consent of' creditors, assail a conveyance made by his assignor, except on the ground that such conveyance was in contravention of section 42 or section 43 of the assignment law. (Compiled Statutes, ch. 6.)</p> <p>2. -: Fraudulent Conveyances. A conveyance or transfer made without any intention to contravene or evade the assignment law, and at any time when an assignment was not contemplated, is valid and will be upheld.</p> <p>3. -: -. A mortgage which does not in its inception contravene the assignment law will not be invalidated by a general assignment for the benefit of creditors, made by the mortgagor within thirty days -after the -execution of the mortgage.</p>

<p>I'. Assignability of Contract. A contract imposing on a party having an interest in the profits of land purchased by another for speculation a duty to pay the taxes and make sales declared in the closing sentence “that the stipulations 'aforesaid are to bind iba heirs, executors, administrators, and assigns of the respective parties.” Held, That the contract was assignable.</p> <p>S. Contract: Construction or Assignment. An ‘assignment of the “right, title, and interest” of the party on whom such duty was imposed, construed in the light of surrounding circumstances and held to be an assignment of the benefits of the contract and not a repudiation of its burdens.</p>

<p>Error from the district court of Perkins county. Tried beloAV before Grimes, J.</p>

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

<p>Action on Injunction Bond: Damages. In an action on an injunction bond conditioned that the obligors should pay to the obligee all damages which the obligee might sustain by reason of the injunction if it should be finally decided that the injunction ought not to have been granted, held erroneous to submit to the jury evidence of the -expenses attendant upon an unsuccessful attempt, on motion, to dissolve the injunction.</p>

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

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

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

<p>1. Foreign Building and.Loan Associations: Interest: Statute?. In an action of foreclosure by a foreign building- and loan association the rate of interest -which it may contract for, and which it may collect, is not regulated by chapter 14, Session Laws 1891, for that chapter, by its terms, is solely applicable to domestic building and loan associations.</p> <p>2. --: --. In an action o£ foreclosure brought by a building and loan association incorporated under the laws of a state other than Nebraska, the rights of plaintiffs with respect to interest are governed by chapter 44, Compiled .Statutes; and if, for the use of the money sought to. be collected, the proofs, upon proper issues, show that more than ten per cent interest per annum has been contracted for or received under any pretense whatever, the penalties prescribed by said chapter 44 for contracting- for or receiving usury should be enforced.</p>

<p>Review: Conflicting Evidence. Questions of fact determined by a jury on fairly conflicting evidence will not be inquired into in error proceedings in the supreme court.</p>

<p>Counties: Fees oe County Clerk: Numerical Index. In the absence of a contract- to the contrary, the first county clerk of a newly organized county, who compiles a numerical index therefor, is entitled to a compensation of fifteen cents for each necessary entry made in compiling such index, to be paid by snc-h county.</p>

<p>1. Divorce: Bindings in Pavor oe Wiee: Evidence. The evidence examined, and held to sustain the findings, both general and special, of the district court.</p> <p>3.-: Cruelty of Husband: Misconduct of Wife. It is a general rule that a husband’s cruelty caused by the conjugal misconduct of his wife does not invest her with a cause of action for divorce.</p> <p>3. -: -: -. But if the husband’s cruelty was disproportionate to his wife’s offense, her conduct affords him no justification, and the cruelty entitles the wife to relief.</p> <p>4. -: -: — -: Question of Fact. Whether a wife’s disobedience of her husband, her misconduct, or impropriety, caused or provoked the husband’s cruelty toward her is a question of fact. ’</p> <p>5. -: --: -. Whether the cruelty inflicted by a husband upon his wife because of her disobedience, impropriety, or misconduct was so far disproportionate to her offense as to be unjustifiable is a mixed question of law and fact, to be determined in any case from the particular facts and circumstances in evidence therein.</p> <p>6. -: -: -. No conduct on the part of a wife that does not threaten great and immediate bodily injury will justify her husband in beating or choking- her.</p> <p>7. —:—: -: -. No conduct on the part of a wife, short of notorious and shameless unchastity, — if that does, — justifies her husband in calling her a “whore.”</p> <p>8. -: -. A husband who falsely, and without reasonable cause therefor, charges his wife with unchastity, accuses her on the public streets with being- criminally intimate with other men, calls her vile, opprobrious, and. degrading names, beats and chokes her, is guilty of extreme cruelty within the meaning of section 7, chapter 35, Compiled Statutes. (Berdolt v. Berdolt, 58 Neb. 793.)</p> <p>9. —:-: - — . Nor is the husband’s offense deprived of its legal character of “extreme cruelty” because his conduct was the result of his insanely jealous temperament, actual insanity not appearing.</p> <p>10. -: Alimony: Determination of Amount. There is no fixed rule in this state for determining what proportion of a husband's estate should be decreed to his wife as permanent alimón jn The amount should be just and equitable, due regard being bad for the rights of each party, the ability of the husband, the estate of the wife, and the character and situation of the parties.</p> <p>11. -: -:--. In the case at bar the parties had been married six months. The wife was thirty-eight years of ago and healthy. She had no one depending upon her for support. The husband was worth $34,000, no part of which the wife had con-ti’ibuted. Tlie marriage was dissolved because of extreme cruelty practiced by the husband toward the wife. Held, (1) That the decree of the district court awarding’ her $5,000 permanent alimony and counsel fees of $700 should be affirmed; (2) assuming extreme cruelty is misconduct within the meaning- of section 23, chapter 25, Compiled Statutes, entitling a wife to permanent alimony equal in value to a dower interest in her husband’s real estate, that it did not affirmatively appear from the evidence but that the permanent alimony awarded was equal to the value of such dower; (3) that the wife, by praying in her petition for a reasonable sum as permanent alimony, elected to take such reasonable sum of money in lieu of dower in her husband’s lands.</p>

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

<p>Nuisance: Improvement oe Street: Damages. On tlie authority of Oily of Omaha v. Flood, 57 Neb. 124, lihe judgment of the district court in this case is reversed. •</p>

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

Error from the district court of Lancaster county. Tried below before Tibdets, J. Expenses of litigation in attempting to support a will should be allowed, against the estate; and attorneys’ fees should be included. (Meeker v. Meeker, 37 N. W. Rep. [Ia.] 773; Moore v. Alden, 80 Me. 301; Mathis v. Pitman, 32 Neb. 191; Glen v. Fisher, 10 Am. Dec. [N. Y.] 310.) Plaintiffs’ claim was properly disallowed. (Lusk v. Patterson, 30 Pac. Rep. [Colo.] 253.)

<p>1. Master and Servant: Inspection oe Appliances. A person or corporation using the cars or appliances of another person or corporation, as to its employés, uses such cars or appliances charged ■with the same duty as to inspection as if they were his or its own.</p> <p>2. -: -: Risks oe Employment. An employé who; under the instructions of his master, uses the car or appliance in ¡his master’s possession belonging to some other person or corporation thereby assumes only the same risk that he would if the car or appliance belonged to his employer.</p> <p>3. -: -. The undisputed facts as to the condition of a defective car brake stated, -and held that the jury was justified in inferring- therefrom that a reasonably careful inspection of the brake by a competent inspector would have revealed its defective condition, although the defect was of so latent a character as not to be discernible at a glance by one in-experienced in brake construction or inspection.</p> <p>4. Evidence: Inferences. A jury has the right to draw rational, reasonable, and logical inferences from facts proved or admitted.</p> <p>5. -: Irrelevancy: Judgment. A judgment lacks evidence to support it which rests solely on testimony irrelevant under the issues made by the pleadings.</p> <p>6. Master and Servant: Rule or Custom: Risks of Employment: Pleading. That an employé knew of a rule or custom of his ' employer, by which his business was conducted, but nevertheless continued in his service, and thereby assumed the risk of injury from -a defective appliance furnished him for .use, is affirmative matter of defense and must be pleaded.</p> <p>7.-: Defective Appliances: Risks of Employment. A brakeman who goes upon a oar to set a brake thereof, knowing that the car has not been inspected, does not for that reason assume the risk of the brake being defective, he not knowing that the brake .is out of order, the defect not beiing obvious, and it not being his duty to inspect cars or brakes, or to handle cars known or supposed to be defective.</p> <p>8. -: -: -. An employé assumes the risk arising from defective appliances used, or to be used by him, or from the manner in which, a business in which he is to take part is conducted, when such risks are known to him or are apparent and obvious to persons of his experience and understanding-. Delming v. Detroit Bridge £ Iron Works, 46 Neb. 556, followed.</p> <p>9. -: -: -. No defect being- obvious, an employé has the right to assume that a tool or appliance furnished him by his -employer is reasonably safe and fit for the purposes for which he is required to use it.</p> <p>10. -: Inspection of Appliances: Negligence. .To inspect a oar brake may require more than a simple glance at it. Such a test must be applied as would probably reveal a defect if one existed; and the neglect of a oar inspector to make such -a test is evidence of neglig-ence.</p> <p>11. Evidence: Custom: Book of Rules: Rebuttal. Certain rulings of the trial court on the -admission of rebuttal evidence examined and sustained.</p> <p>IS. Master and Servant: Injury to Employe: Contributory Negligence: Harmless Error. An instruction that “contributory negligence is based upon, and presupposes, the negligence of the defendant, and cannot exist without some neglig'&nce on defendant’s part,” criticised, but, in view of the' issues, held, no-t prejudicial, if erroneous.</p>

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

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

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

<p>District Judge: Authority in Vacation. A district judge is without authority to render in vacation a money judgvment. Consent of parties will not confer such authority.</p>

Appeal, from the district court of Lancaster county. Heard below before Holmes, J. The opinion contains a statement of the case. The instrument, purporting to be a mortgage on the homestead, executed by George B. Skinner alone, is void, created no lien, and cannot be enforced.

<p>1. Appointment of Receiver: Collateral Attack. When a court of competent jurisdiction has appointed a receiver in an action where such appointment is authorized, the authority of such receiver is not open to collateral attack.</p> <p>2. Action Against Corporation: Intervention by Receiver: Parties. A receiver of a corporation, appointed after the commencement of a suit against the corporation, may intervene in such action to defend the rights of the corporation.</p> <p>3. Insolvent State Bank: Possession by Examiner: Attachment. Under the present banking- law (Compiled Statutes, ch. 8), when an examiner, under authority of the banking board, has taken possession of the assets of an insolvent bank, such assets are not subject to attachment at the suit of a creditor of the bank while .possession is so retained.</p>

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

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

<p>Mandamus: Schools: Reinstatement oe Pupil. An action oJ! mandamus will lie and may be maintained to reinstate a pupil in a scliool, if the action of the officer or officers by which the party was refused admission to or continuance in the school was an arbitrary or capricious exercise of authority.</p>

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

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

<p>1. Instructions: Evidence: Issues. An instruction by which, the jury was informed that unless the plaintiff had established designated issues by a preponderance of the evidence she could not recover, and which in its statements ignored and excluded from the. consideration of the jury a, material issue in the case,, relative to which there was much pertinent evidence, and of which it could not be said that a finding for defendants was the only one which the evidence would sustain, is prejudicially erroneous.</p> <p>2. --: -: --. The error of giving such an instruction was not cured by other instructions on the subject of which in it there was an omission of notice or statement.</p>

<p>1. Mortgage: Default: Election to Declare Debt Due: Waiver. A bond and mortgage given to secure payment of t-lie debt stated jn the lormer instrument provided lor an election by the creditor ' to declare the entire debt due and for enforcement by foreclosure if default was made in payments of interest or an installment . or installments of principal as they respectively matured. Acceptance of interest due did not waive the default in payment of matured installments of principal.</p> <p>2. -: -: -: Notice. No specific notice of the election to treat the whole debt as due was necessary prior -to the institution of the foreclosure suit. Its commencement was sufficient notice of said election.</p> <p>3.-: Taxes and Insurance. A mortgagee is entitled to reimbursement for taxes and insurance premiums paid to preserve the security; also the interest on such payments.</p> <p>4.--: -. A bond and miortgage provided for the payment on default thereof of the mortgagor of “taxes and assessments.” Held, To include certain special assessments by city authorities which by law were made liens on the mortgaged property and for which it mig'ht be sold as for general, state, county, and city taxes.</p> <p>». Identification of Instrument. An instrument introduced in evidence determined suificiently identified as the one in suit.</p> <p>6. Mortgages: Expenses op Abstract. A stipulation in the bond and a mortgag'© for payment by the mortgagor of “expenses incurred in procuring and continuing abstracts of title for the purposes of the foreclosure suit” held, ineffective and unenforceable.</p>

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

Exception to. a ruling of the district court for Sheridan county, Westovee, J., presiding. Filed under the provisions of section 515 of the Criminal Code.

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

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

<p>Modification of Pormer Judgment. This case being here on appeal, a former judgment of affirmance will be modified so as to correct an erroneous computation of the trial court.</p>

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

<p>1. Trustee: Insolvency: Preferred Creditors. The owner of trust property is not, merely by reason of the character of his claim, entitled to a preference over the general creditors of an insolvent trustee:</p> <p>2. -: -: —-. A person asserting' a claim for preference against an insolvent estate has the burden of showing that such estate has been increased, to some extent, by the misappropriation of trust funds or property belonging to the claimant.</p>

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

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

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

<p>Error from tlie district court of Douglas county, ikied below before Si,abauoh, J.</p>

<p>Appeal from the district court of Oass county. Heard below before Ci-iapman, J.</p>

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

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

<p>1. Suit on Note: Defense: Collateral Security. In a suit on a promissory note the maker answered that plaintiff held the note of a third party as collateral security for the note sued on, and that the maker of the collateral note was solvent and the collateral of greater value than the amount due on the note in suit. Held, That the answer stated no defense.</p> <p>3. -: --:--: Production in Court. A creditor who holds a promissory note belonging to his debtor as collateral security for his debtor’s note cannot be compelled to produce such note in court and turn it over to his debtor so long as the latter’s debt- remains unpaid.</p> <p>3. -: -: -. Such a creditor cannot be compelled to exhaust the collateral security held by him as a condition precedent to his right to sue his debtor upou his note.</p> <p>4. -: -: ---: Counter-Claim. A debtor, when sued by his creditor, may plead as a counter-claim or set-off the actual value of any collateral security which the creditor has converted to his own use or tbe value of any collateral security which he lias released, dissipated, or diverted from the purpose for which he held it.</p> <p>5.-: -: -: Conversion. But in such a suit an answer which simply avers that the creditor still has possession of the collateral security pledged to him, hut does not allege that the debt sued for has been paid, is not a good plea of conversion.</p>

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

<p>Appeal from tlie district court of Sioux county. Hoard below before Kinkaid, J.</p>

<p>1. Judicial Sales: Special Master: Oath: Presumptions. If a special master appointed to make a judicial sale is required to take an oath, it will be .presumed, in the absence of any showing to the contrary, that such oath was taken.</p> <p>2. -: Appeal prom Confirmation: Appraisement. A defendant, appealing- from an order confirming a judicial sale of land, cannot be heard to complain that his interest was not sing-led out for appraisement, when the appraisement was the total value of the land less only liens which from their nature would have to be deducted from such defendant’s interest.</p> <p>3. -: -: Objections. On an appeal from an order confirming- a sale this court will consider only objections specifically made in the district court, and this whether the irreg-ularity complained of appeared on the face of the record or was disclosed by evidence aliunde.</p>

<p>1. Corporations: Right to Vote Stock. Prima facie, at least, the right to vote stools in a corporation does not exist until such stools has been registered in the name of the person seeking to vote it.</p> <p>2.-: Illegal Election oe Directors: Injunction. A stockholder may obtain an injunction to restrain persons claiming to have been elected directors from acting- as such, when the election was illegal and void. Humboldt- Driving Parle Ass’n v. Stevens, 34 Neb. 528, followed.</p>

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

Error from the district court of Washington county. Tried below before Blair, J. References as to effect of the mortgage on partnership property, the execution sale of the realty, and the rights acquired by making the improvements: Murrell v. Mandelbaum, 19 S. W. Rep. [Tex.] 880; Harney v. First Nat. Bank, 29 Atl. Rep. [N. J.] 221; Goldthioaite v. Janney, 15 So. Rep. [Ala.] 560; Rosenbaum v. Hayden, 22 Neb. 744; Donaldson v. Bank of Gape Fean', 18 Am.

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

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

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

<p>1. Building Contract: Promise to Pay For Lahoi; and Material: Bond. A stipulation in a building' contract held to embody a promise to satisfy true claims of laborers and parties who furnished material in the performance of the contract; also, that this promise of the contract was included in the obligations of the bond given to secure the fulfillment of said contract.</p> <p>2. 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 parly who so signed it, unless the oblig'ee, pnior to the delivery, was not apprised of the condition, or the signer, subsequent to execution of the bond, waived the condition. {Middleboro Nat. Bank v. Richards, 55 Neb. 682.)</p> <p>3. —:-: -: -. If, when delivery of such a bond is made, there appears on its face that which discloses or suggests an infirmity or irregularity relative to one of the requisite s'g’natures sufBcient to cast tlie 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. {Middleboro Nat. Bank v. Richards, 55 Neb. 682.)</p> <p>4. -: -: - — . A surety majr 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 wilh a subsequent rat-iScation of the signature which had been at the time of the execu- ' tion thereof written on- the paper by an unauthorized person. {Middleboro Nat. Bank v. Richards, 55 Neb. 682.)</p> <p>5. Peremptory Instruction: Conflicting Evidence. It is error to give a peremptory instruction ancl direct a verdict where of the existence of facts of litigated issues there is a conflict in the evidence.</p> <p>6. Instructions: Conflicting Evidence. A court may not give an ■instruction in which there is the assumption of the existence of facts relative to which the evidence is conflicting-, aucl also submit the question of the existence, of such facts to the jury.</p> <p>7. -: -. Where a court has given an instruction in which there is expressed the existence of certain facts, or its opinion that they do exist, in a case wherein there is a conflict in the evidence relative to said facts, the error is not cured by submitting special interrogatories of their establishment, or the contrary, and the further instrnction that the jury is not to be influenced in the determination of the special queries by the fact that the court has given the former instruction which embodied its opinion on the subject.</p>

<p>Verdict Insufficient in Amount: Deed to Land as Security: Sale by- Grantee: Accounting. Uncler the pleading’s and evidence the plaintiff, for whom there was a verdict, was entitled to recover, if at all, a greater sum than was awarded him.</p>

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

<p>1. Mortgage Foreclosure: Master Commissioner: Oath. The statute does not require that a master commissioner appointed to make a mortgage foreclosure sale shall take, subscribe, and file an oath. Xorllmcstern Mutual Life Ins. Oo. v. Mulvihill, 53 Neb. 538, followed.</p> <p>2. -: -: Appraisers: Oath. A master commissioner appointed to make a judicial sale has authority to administer the oath to the appraisers. (Supra.)</p>

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

Heard below before Norris, J. The opinion contains a statement of the case. The engine newer became, a fixture or part of the realty. It was not the intention of the parties that it should. This intention governs.

<p>. 1.'Deeds: After-Acquired Interest. By virtue of section 51, chapter 73, Compiled Statutes, an after-acquired interest in real estate by a grantor inures to the benefit of the grantee when the deed purports to convey a greater interest or estate than the grantor owns at the time of the conveyance.</p> <p>2. -: --. A grantee in a quitclaim deed takes only the grant- or’s existing interest, and the after-acquired title of his grantor in the property does not pass to him.</p> <p>3. - — : -: Cancellation of Conveyance. An after-acquired title does not inure to the benefit of the grantee, where the deed of conveyance under which he claims has been canceled and annulled by a decree of court.</p> <p>4. ActiorT on Covenant: Eviction." An action cannot be maintained on a covenant of warranty of title, where it appears there has been no actual eviction or surrender of possession of the granted premises by reason of a paramount title.</p> <p>5. Occupying Claimants: Eviction: Improvements. A decree canceling a deed under which a grantee asserted title, the appointment of appraisers under the act for the relief of occupying claimants (Compiled Statutes, ch. G3) to assess the value of the lasting improvements of the grantee, and the confirmation of the report of the appraisers by the court, alone do not amount to an eviction, where the owner of the paramount title has neither elected to accept the value of the land nor to pay the occupant the value of his improvements, and the physical possession of the latter has not been disturbed.</p> <p>6. Deeds: Covenants of Warranty. Covenants of warranty in a deed |or the conveyance of real estate, not broken when made, pass with the title, even though the subsequent conveyances are by quitclaim deeds.</p> <p>7. Occupying Claimants: Improvements: Appraisement: Eviction. Where the appraisement has been made under said act, the unsuccessful occupant cannot be ousted of jjossession 0f the premises until the successful owner has elected to pay, and has paid, the appraised value of the improvements or elected to accept the value of the land, and the occupant has refused to pay the same.</p> <p>8. -: -: Sale. The occupant may not have the land and improvements sold to pay the parties the value of their respective interests, — a-t least not until a time has been fixed by the court within which the successful owner may elect whether he will accept the value of the land without the improvements, or pay the value of the improvements, and he has refused to make such election.</p>

Error from the district court of Otoe county. Tried below before Chapman, J.- An unrecorded deed of land voluntarily given up and canceled by the parties with intent to reinvest the estate in the grantor will, as between the parties and all persons subsequently claiming under them, operate as a reconveyance and revest the- estate in the grantor. (8chade v. Bissinger, 3 Neb. 140; Gommomoealth v. Dudley, 10 Mass. 403; Thompson v. Ward, 1 N. H. 9.)

<p>Appeals from the district court of Johnson county, Heard below before Babcock, J,</p>

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

<p>i. Appeal: Errors at Trial. Alleged errors in matters of procedure occurring at or before the trial cannot be reviewed on appeal. In this court the correctness of the judgment rendered on the pleadings and proofs is the only question to be considered.</p> <p>2. Pleading: Answer. An answer which states “that defendant has not sufficient knowledge or information as to the claim of the plaintiff, and therefore demands and calls for strict legal proof thereof,” presents no issue for trial.</p>

<p>1. Judgment: Eepect oe Reversal. When a judgment of the district court is reversed in an appellate proceeding it ceases, from the date of the reversal, to- be a lien on the lands of the judgment debtor.</p> <p>2. ■-: -. A person who purchases real estate burdened with the lien of a judgment will hold it discharged of such lien in case the judgment be afterwards reversed.</p> <p>3. -: -: Lien oe Subsequent Decree. The subsequent rendition of another judgment in the same cause will not revive the lien so as to make it effective from the date of the original judgment.</p> <p>4. -: Special Findings: Review. A judgment predicated on special findings of fact will be reversed if such findings are insufficient to sustain it, and its correctness is not otherwise affirmatively shown.</p> <p>5. -: -: Specific Lien. A finding that one of the parties to an action has obtained a judgment -against the other in a- collateral suit does not warrant the inference that such judgment is based on a specifie claim.</p> <p>G. Special Findings: Presumptions on Review. There is no presumption of law that questions submitted to a trior of fact have been established beyond the limits of the special findings made by him.</p> <p>7. Co-Tenants: Liabilities Inter Se: Liens. As between themselves, co-tenants are liable for the payment of liens and incumbrances existing- ag-ainst the common estate, in proportion to tlieii- respective interest therein, each being surety for the others.</p> <p>8. -: -:--: Subrogation. Where one -tenant in common has paid more than his proper share of a charge upon the common property, his interest or ownership therein is not proportionally expanded, but he is, to the extent of the excessive contribution, subroga! eel to the rights of the lien creditor to whom - ' the payment has been made.</p> <p>9.--•: --: --. The right acquired by such subrogation does not pass to the mortgagee under a mortgage purporting to convey the undivided interest of ilie owner of the right in the common property.</p> <p>10. Partition: Judgment: Equitable Lien: Set-Oee. In an action for partition a judgment lien in favor of one co-owner, upon the interest of the other, is properly offset against an equitable lien in favor of the judgment debtor, upon the interest of the judgment creditor in the joint estate.</p> <p>11. -: Costs: Attorney’s Fees. The plaintiff's attorney’s fees are not taxable as costs in yan action for partition where the proceeding's are adversary.</p>

Heard below before Hastings, J. The opinion contains a statement of the case. A trust involving personalty may be created, by parol. (Alien v. Withrow, 110 TJ. S. 119; Gilman v. McArdle, 99 N. Y. 451; Ellis v. Secor, 31 Mich. 185.) Any language showing that property or money shall be held for a purpose, or on behalf of another, will constitute a parol trust.

<p>Replevin: Verdict: Value oj? Property: Review. In an action of replevin, wherein plaintiff was in possession of the personal property in dispute at the time of the trial, a judgment of the district court for a return of ihe property, or for its value of a certain fixed sum, must be reversed where there was no finding in the verdict with reference to such value.</p>

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

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

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

Error from the district court of Lancaster county. Tried below before Hall, J. After the claim of plaintiff in the foreclosure suit was paid in full, the surplus turned over to the clerk of the district court belonged to defendant. The fund was not in custodia legis, but was subject to garnishment in the hands of the officer. (Oppenheimer v. Marr, 31 Neb. 811; Leroux v. Baldns, 13 S. W. Rep. [Tex.] 1019; Weaver v. 'Davis, 47 111. 240; King v. Jf.oore, 41 Am.

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

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

<p>1. Contracts. A concurrence of minds is essential to the creation of a contract, unless in cases of estoppel.</p> <p>2. -: Alteration. Therefore, a written instrument signed by one party, with the intention that the other shall later sign it, which is changed in any manner altering its legal effect, and by that other signed in its altered condition, does not become binding on the former, unless he learn of and ratify the change; and this although the alteration be made by a stranger.</p>

<p>1. Conflicting Evidence: Review. The verdict of a jury- on an issue of fact will not be disturbed where the evidence was substantially conflicting.</p> <p>2. Estoppel. A lent money to B & 0, partners. Certain moneys were thereafter paid by B to A. A receiver was appointed to wind up the partnership, and B, without authority from A and without her knowledge, proved her whole claim ag'ainst the firm and secured its allowance without deduction of the moneys paid by B. A dividend was paid A on the claim, but she did not know when she received it that her claim had been so presented and allowed, and the payment made was, together with the moneys paid by B, less than the debt to her. In a suit by B to recover the moneys, paid by him as moneys lent, held, that A was not by the foregoing facts estopped to assert that such moneys had been paid by B to her as partial payments of the firm debt and not as a loan.</p>

<p>1. Courts: Effect of Adjournment. An adjournment of court to a. subsequent day in the term is merely an intermission, and neither adjourns the term'nor deprives the judges of control of , the proceedings.</p> <p>2. -: -: Power to Reconvene. Notwithstanding such an order the court may revoke it and reconvene before the time fixed in the order of adjournment.</p> <p>3. -: -■ — : Reconvention. Where the record shows an order adjourning to a future day in the term, and judicial proceedings carried on in the interval, it will he presumed, in favor of regularity, that there has been a reoonvention and an express or ' implied vacation of the .order oi! adjournment.</p> <p>4.-: -: -: Bights of Litigants. The rights of litigants under such circumstances, who have been prejudiced by reliance upon the order of adjournment, present questions not involved in this case.</p> <p>5. Forcible Entry and Detainer: Purchaser, at Judicial Sale. An action in forcible entry and detainer lies in favor of a purchaser at judicial sale to recover possession of the premises purchased, when the judgment debtor was in i>ossession at the time the judgment or decree was rendered whereunder the sale was made.</p> <p>6. --: Writ of Assistance: . Injunction. Tihe remedy by forcible entry and detainer and by writ of assistance in the original case are concurrent, and an injunction will not be allowed to restrain the prosecution of a case in forcible detainer merely because the district court might x>roceed by writ of assistance.</p> <p>7.-: Jurisdiction of Justice of the Peace. A justice of the peace or county court is not ousted of jurisdiction in a forcible ■entry and detainer case by the mere averment in that case or elsewhere that it involves the question of title. It has jurisdiction to proceed until the evidence discloses such fact.</p> <p>8. Sheriff’s Deed: Time of Execution and Delivery. A sheriff’s or master’s deed, executed after ° confirmation of sale and before supersedeas oE that order, and delivered after judgment of affirmance and filing of a mandate, is regular.</p> <p>9. Pleading as Evidence. A pleading is not competent evidence, in favor of the party whose pleading it is, of the facts averred therein.</p>

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

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

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

<p>1. Review: Record: Testimony: Triad. An objection that no testimony was received on the hearing in the trial court must be eyemilej where the repercl shows the hearing was in the nature of a trial, and' that evidence, and all that was offered, was received.</p> <p>2. —.—: Questions Not Raised Below. The general rule is that objections not made in the trial court, but raised for the first time in the appellate court, will not be considered.</p> <p>8. -: -. Certain objections in the present case made for the first time in this court held to be within the general rule just stated.</p> <p>4. Order Refusing to Satisfy Judgment: Revivor: Res Judicata. A motion was made to discharge of record a judgment, for the reason it had been satisfied, and the motion on hearing was overruled. To a subsequent application to revive the judgment whieh had become dormant the satisfaction was interposed as a cause why the revivor should not be ordered. Held, That its adjudication on the hearing- of the Former motion was conclusive, and not open to further litigation.</p> <p>• 5. Review: Proceedings During Trial: Motion fob New Trial. A petition in error does not present to this court for review the proceedings during- a trial in a district court, if in the irial court there was no motion for a new trial and a ruling thereon.</p>

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

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

<p>1. Note: Transfer. A note payable to a party or order may be transferred by the payee, without a commercial' indorsement, by either an oral or á separate, distinct, written assignment thereof, followed by delivery, which would render the transferee liable to any defenses against the original payee.</p> <p>2. Action on Note: Void Judgment: Res Judicata. A former'judgment on a note is not a defense to a subsequent action on the same note, where the judgment was void for want of jurisdiction over the person of the defendant.</p>

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

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

<p>1. Assignments of Error. An assignment in a petition in error, “errors of law occurring at the trial,” presents nothing- for review.</p> <p>2. -: New Trtai.. An assignment in a petition in error that there was error in overruling the mo-tdon for a new trial is too indefinite for consideration where such motion is based upon several different grounds.</p> <p>3. Conflicting Evidence: Review. A verdict based upon conflicting-evidence will not be disturbed on review', unless clearly wrong-.</p> <p>4. Errors in Verdict: Review'. Alleged error in the verdict wi!l not be considered on review' when not raised either in the motion for a new' trial or petitiou in error.</p>

<p>1. Eminent Domain: Right oe Way: Public Lands: Damages. No provision of the constitution makes compensation for the easement a precedent condition to the right -of the state to permit a railroad company to construct and operate a 1-ine of road over the saline or -other irablic lands.</p> <p>3. - — -: -: -. Whether it- is within the competency of the legislature to donate to a railroad company a right -of way over the saline -or other lands under the control of the state, qucere.</p> <p>3. --: -: Ejectment. The owner cannot'maintain ejectment for land upon which a corporation has, with his prior assent or subsequent acquiescence,- constructed -q-nd put in operation a railroad used by it in its business as a common carrier of. freight or passengers.</p> <p>4. -:--: Railroads: Compensation. A railroad construe!el upon land with the permission or acquiescence of the owner becomes a permanent structure, and the resulting right to compensation is a mere personal claim which will not pass to a purchaser of the land, except under the terms of an express grant.</p>

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

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

<p>1. Wills: Rights Conferred by Law: Election. If the rights given by a will are inconsistent with those conferred by the law, the acceptance of the former is, by necessary implication, an abandonment of the latter.</p> <p>' g.--: Conditional Devise: Trusts: Title of Executor. A devise, subject to a condition that the executor shall hold the property in trust for a number of years and collect rents, pay taxes, charges, and expenses incident to the proper care of the estate, and account annually to the beneficiary for the balance, vests the legal title to the property in the executor.</p> <p>3. -:---: -: Alienation. In sncli case a condition that the devised property shall not be aliened or incumbered by the beneficiary, or liable for his debts, during- the existence of the trust estate, is valid and enforceable.</p>

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

<p>Mandamus to County Board: Special Election: County Seat. An action of mandamus may be. maintained to require a board of county commissioners to order a special election for the purpose of voting upon the removal of a county seat, if a proper petition for such election has been presented and the refusal of the prayer of the petition is the exercise of an arbitrary or capricious authority.</p>

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

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

<p>1. Summons: Service Upon Non-Ricsidf.nt: Affidavit. Service oE summons upon a non-resident defendant can only be made in oases whore service might be made by publication, and the failure to file the affidavit required before service by publication is as fatal as a jurisdictional defect with respect to personal service upon a non-resident as with respect to service by publication'. Overruling- a conflicting- holding- in Gheney v. Uardiny, 21 Neb. 68.</p> <p>2. Mortgagees in Possession: Default. Pacts considered, and held not t-o show that defendants are entitled to protection as mortg-agees in possession after default under the provisions contained in the niortg-ag-e.</p> <p>3. Realty: Right ot? Possession: Ineants: Estoppel. Where the subject-matter in dispute is the present right of possession of real property, there is no estoppel established as against plaintiffs by merely showing- that during- their minority their guardian received a-portion of the purchase price, paid for said property by the defendant and used it for the maintenance and education of such minors.</p>

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

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

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

<p>1. Religious Societies: Church Polity: Jurisdiction of Court. Whether the tenets of faith, the piractice, and church polity of one synod of the German “Evangelical Lutheran church in the United States” differ in essential particulars from the tenets of faith, the practice, -and church polity of another synod of such church is purely a question of ecclesiastical law, and not one that the secular courts will assume jurisdiction to investig-ate and determine as an original question.</p> <p>3.-: -: Ecclesiastical Tribunals: Effect of Decisions. When tiie ecclesiastical tribunals of the church have determined such question, their judgment will be recognized by the s.ecular courts as final and conclusive when the latter are called upon by contending factions of a con greg'ation to determine their rights as members of such church.</p> <p>3. -: -: Injunction: Employment of Pastor. A majority of a religious congregation, or the trustees thereof, will not, at the suit of a minority of such congregation, be enjoined from employing as pastor for the congregation a minister, professing and teaching- the same organic creed professed by the cong-regation, on the ground that such minister teaches certain doctrines and practices a certain church polity not taug-ht and practiced by the minority nor by the original founders of the congregation.</p> <p>4. -: -: Ecclesiastical Tribunals: Enforcement of Decisions. In such a case the minority must appeal to the supervising tribunals of the church, and their judgment the secular courts will take -as final in the premises and, if necessary and proper, enforce.</p> <p>5. Injunction: Remedy at Law: Possession- of Realty. A litigant cannot successfully invoke the extraordinary remedy of injunction to regain possession of real estate wrongfully in the possession of another, in the absence of a showing that the ordinary - remedies of the law will not afford him complete and adequate relief.</p>

<p>1. Note: Consideration: Third Persons: Indemnity. If A, as an accommodation to B, and in consideration of liis promise of. indemnity, gives liis note to C for a debt owing- to the latter by Ti, the note of A does not lack consideration. B’s promise to A is a sufficient consideration” to support A’s promise to C.</p> <p>3. Raise Representations: Cancellation oe Contract. To entitle a party to be relieved from his contract on the g-round that he was ■ induced to make it bjr the false representation of the other contracting- party, he must plead and prove that the. representation was made, that it was false, that he believed it, and acted upon it.</p> <p>3. Landlord and Tenant: Repair oe Premises. In the absence of an express contract a landlord is not bound to repair leased premises, nor to pay for repairs made thereon by the tenant.</p> <p>4. -Vendor and Vendee: 'Rights oe Occupant. One who purchases real estate then in the actual possession of a third party under a written eon tract, with the vendor thereby assumes the obligations of the contract of his vendor with such third party, iu the absence of an express contract to the contrary.</p> <p>5. -: -: Improvements. But where the contract between such occupant and vendor .is that the latter would pay for improvements made on the property by the occupant, and such contract rests in parol, such purchaser is not bound thereby if he purchased without notice of such parol agreement.</p> <p>6. Mortgages: Rights oe Occupant: Improvements. In the absence ' of express agreement to the contrary a mortgagee of real estate is not liable to the occupant thereof for improvements made by him on the premises in pursuance of an agreement with the owner that he would pay the occupant for the improvements go made,</p>

<p>1. Principal and Agent: Estoppel oe Principal. Where a principal has by his voluntary act placed an agent in such a situation that a person of ordinary prudence conversant with business usages and the nature of the particular business is justified in presuming that such agent has authority to perform a particular act, and therefore deals with the agent, the principal is estopped as against such third person from denying the agent’s authority.</p> <p>3. -: Apparent Authority: Question op Fact. Whether or not an act is within the scope of an agent’s apparent authority is to be determined under tlie foregoing rule as a question of fact from all the circumstances of the transaction and the business. Johnston v. Milwaukee £ Wyoming Investment Go., 46 Neb. 480, followed.</p> <p>3. -: Ostensible Autuobity: Evidence. Ostensible authority to act as agent may be inferred if the party to be charged as principal affirmatively or intentionally, or by lack of ordinary care, causes or allows third persons to trust and act upon such apparent agency. Thomson v. Shelton, 49 Neb. 644, and PlumUe Ins. Go. v. Waller, 51 Neb. 183, followed. Porter v. Ourada, 51 Neb. 510, and Frey v. Gm lis, 53 Neb. 406, distinguished.</p> <p>4.--: Authority oe Agent: Payment by Note. Generally, the authority of an ag-ent or attorney to collect his principal’s debt does not include the authority to accept as payment anything but money; and where a debtor gives his own note to the agent, it will not discharge the debt due the principal, in the absence of ratification of such payment by him.</p>

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

<p>1. Summons. A summons issued from the district court need not state the nature of the a'ction.</p> <p>-: Corporations. In suing a corporation it is not necessary that in tlie snunuous it he described as such.</p> <p>3. Pleading: Corporations. A petition, at least after answer to the merits, is not open to attack because it does not allege the corporate character of the defendant. •</p> <p>4. Summons: Name of Party. A writ returned as served on “H. L. Bode” will not be quashed because of the use of initials, unless at least it be shown that such initials were in fact a contraction ancMrot the full name of the person described.</p> <p>5. Insurance: Misstatements in Application: Parol Evidence. An insured is not precluded from recovering on a policy because of misstatements in a written application, when it is made to appear that the application was written by the agent of the insurer and that the insured truthfully stated to him lihe facts in question. Such facts may be shown by parol.</p> <p>6. -: Vacant Premises. Aii insurance policy contained a provision avoiding the policy should the demised premises “be or become vacant.” They were vacant when the policy was issued and the agent who issued the piolicy knew that fact, lleld, A waiver by the insurer of that provision.</p> <p>7. Witnesses: Competency. A party to an action is not an incompetent witness by whom to prove a transaction with an agent of the other party since deceased.</p> <p>8. Pleading: Amendments-. The allowance of certain amendments after trial so as to conform the pleadings with the proof held proper.</p> <p>9. New Trial: Newly-Discovered Evidence: Affidavit. An affidavit in support of a motion for a new trial on the ground of newly-discovered evidence should state as specifically as practicable the nature of such evidence and not merely its general object.</p>

<p>1. Contract: Consideration. The consideration of a contract need, not move to the promisor. A disadvantage to the promisee is sufficient, although, the promisor derives no benefit therefrom.</p> <p>3. Guaranty: Consideration. The extension of time to a principal debtor is a sufficient consideration to support a guaranty by a stranger of the payment of the new obligation.</p>

<p>School District: Schooliiouse: Rights oe Electors. Subject to certain restrictions, the qualified electors of school districts are intrusted with the power to determine what soft of a schoolhouse shall be erected and' the extent of the expenditure therefor; and when so determined, the school board has no authority to dhang-e the same and thus bind the district for an increased expenditure. Gehling v. School District, 10 Neb. 239, followed.</p>

<p>1. Judgment: Enforcement: Injunction. To justify an injunction to restrain tlie enforcement of a judgment it is not sufficient to show that the. judgment debtor had a valid defense. It must be shown that he ivas prevented from interposing it by fraud, mistake, or accident, and without fault on his part.</p> <p>2. -: -: -. The fact that the judgment debtor, without fraud or concealment as to the facts, mistook the law and so suffered judgment, does not constitute a mistake which entitles him to relief.</p> <p>3. Municipal Corporations: Contracts with Corporations: City Officers as Stockholders. The fact that the mayor and a member of the council of a city may, as having been subscribers to the stock of a corporation, become liable for an unpaid subscription if such corporation should some time become insolvent and other conting-encies hapiien, ¿loes not of itself avoid a contract between the city and tlie corxioration, in making which they participated as municipal officers, they being no longer stockholders.</p> <p>4. Judgment: Enforcement: Injunction. Pleadings and proof helé insufficient to warrant an injunction to restrain the enforcement of judgments.</p>

Error from the district court of Douglas county. Tried below,before Duffie, J. The opinion contains a statement of the case. References: Rudolf v. McDonald, 6 Neb. 166; Ward v. Howard, 12 O. St. 158^ Till on v. Oofield, 93 U. S. 163; Waples, Attachment 145; Drake, Attachment 282; Felton v. Wadsworth, 7 Cush. [Mass.] 588; Peirce v. Partridge, 3 Met. [Mass.] 44; Fairfield v. Baldwin, 12 Pick. [Mass.] 388. , .

<p>Error from the district court of Lancaster county. Tried below before Hall, J.</p> <p>References: Ilooper v. Chicago cG N. W. R. Co., 27 Wis. 81; Michigan C. R. Co. v. Phillips, 60 111. 130; Pennsylvania R. Co. v. Stern, 35 Am. & Eng. R. Cas. [Pa.] 551; Furman v. Union P. R. Co., 32 Am. & Eng. R. Cas. [N. Y.] 500; Libby^v. Ingalls, 121 Mass. 503; McEwcn v. Jeffersonville, M,& I. R. Co., 33 Inch 368; Calcs v. Chicago, B. & Q. R. Go., 12 Neb. 379; Union P. R. Co. v. Johnson, 15 Neb. 57; Union Stoclc Yards Co. v. Westcoti, 17 Neb. 300.</p> <p>Defendant in error did not file a brief.</p>

<p>■Error from the district court of Nuckolls county. Tried below before Hastings, J.</p> <p>References: State v. State Bank of Wahoo, 42 Neb. 896; May v. Le Clare, ’ll Wall. [U. S.] 232; Duncan v. Jaudon, 15 Wall. [U. S.] 165; United States v. Stale Bank, 96 U. S. 30; Dillon v. Connecticut Mutual Life Ins. Go., 44 Md. 386; Libby v. Hopkins, 104 U. S. 303; Peak v. Ellicott, 1 Pac. Rep. [Kan.] 499; Ellicott v. Barnes, í Pac. Rep. [Kan.] 767; Peoj)le v. City Bank of Rochester, 96 N. Y. 32; Kimmel v. Dickson, 58 N. W. Rep. [S. Dak.] 561; Anheuser-Busch Brewing Ass’n v. Morris, 36 Neb. 31; Griffin v. Olíase, 36 Neb. 328.</p> <p>References: Wilson v. Gob-urn, 35 Neb. 530; Hanchett v. Waterbury, 115 111. 220; Illinois Trust & Savings Bank v. Smith, 21 Blatch. [U. S.] 275; In re North River Bank, 14 N. Y. Supp. 261; Atldnson v. Rochester Printing Go., 114 N. Y. 168.</p>

<p>Error from the district court for Saline county. Tried beloAV before Hastings, J.</p> <p>References: Baltimore & O. R. Go. v. Bambrey, 16 Atl. Rep. [Pa.] 67; Head v. Georgia P. R. Go., 79 Ga. 359; Alabama G. B. R. Co. v. Heddleston, 3 So. Rep. [Ala.] 53; Bouth $ N, A. R. Go, v, Huffman, 76 Ala, 496; Louisville? N. A. & C. R. Go. v. Wolfe, 27 N. E. Rep. [Ind.] 606; English v. Delaware & Hudson Ganal Co., 66 N. Y. 454; Chicago, S. L. & P. R. 'Go. v. Iloldridge, 118 Ind. 281; St. Louis, A. & T. R. Co. v. Mackie, 9 S. W. Rep. [Tex.] 451; Shepard v. Chicago, R. I. & P. Ii. Co., 41 N. W. Rep. [Ia.] 564; Ells-worth v. City of Eairlmry, 41 Neb. 881; Slanwood v. City of Omaha, 38 Neb. 552; Sternberg v. State, 36 Neb. 307.</p> <p>References: Ohurch v. Chicago, M. & S. P. R. Co., 60 N. W. Rep. [S. Dak.] 854; Chicago & A. R. Go. v. Randolph, 53 111. 515; Ohio & M. R. Go. v. Appleiohile, 52 Ind. 546; Barker v. New York G. R. Go., 24 N. Y. 599; Beauchamp v. International & G.'N. R. Go., 9 Am. & Eng. R. Cas. [Tex.] 307; State v. Brady, 69 N. W. Rep. [Ia.] 290; Tyler v. Ohicago & N. W. R. Go., 71 N. W. Rep. [Ia.] 536; People v. Dow, 64 Midi. 717; Sira v. Wabash It: Go., 21 S. W. Rep. [Mo.] 905; Georgia Railroad & Banking Go. v. Eskeio, 47 Am. & Eng. R. Cas. [Ga.] 635; Lewis v. Flint & P. M. R. Co., 18 Am. & Eng. R. Cas. [Midi.] 263; Henry v. St. Louis, K. G. & N. R. Go., 12 Am. & Eng. R. Cas. [Mo.] 288; Platt v. Chicago & N. W. R. Co., 21 Am. & Eng. R. Cas. [Wis.] 319; Pittsburg, G., C. d S. L. It. Go. v.-Lightcap, 34 N. E. Rep. [Ind.] 243; Allen v. Wilmington & W. R. Co., 8 Am. & Eng. R. Cas. n. s. [N. Car.] 257; Noble v. Atchison, T. & S. F. It. Go., 5 Am. & Eng. R. Cas. n. s. [Okla.] 309; Trot-linger v. East Tennessee, V. & G. R. Co., 13 Am. & Eng. R. Cas. [Tenn.] 49; White v. Evansville & T. II. R. Co., 33 N. E. Rep. [Ind.] 274; Townsend v. New York C. & H. R. R. Go., 56 N. Y. 301; Sellcck v. Lake S. & M. S. R. Go., 23 Am. & Eng. R. Oas. [Mick.] 340; Oarstenv. Norihern-P. R. Go., 44 Am. & Eng. R. Cas. [Minn.] 394; Brown v. Ghicago, M. & S. P. R. Go., 3 Am. & Eng. R. Cas. [Wis.] 444; Texas d P. R. Co. v. Ludlam, 57 Fed. Rep. 484</p>

Error from the district court of Seward county. Tried below before Bates, J. It was the duty of the state court, upon the filing of the petition and bond, to proceed no further in the cause. (Stevens v. Phoenix Ins. Go., 41 N. Y. 149; Shaft v. Phomix Mutual Life Ins. Go., 67 N. Y.’544; Stale v. Goosaio Mining Go., 45 Fed. Rep. 804; Torrent v. Martin Lumber Go., 37 Fed. Rep. 727; Clark v. Chicago, M. & S. P. R. Go., 11 Fed.

Proceedings in Error from the district court of Seward county. Tried below before Bates, J. The parties filed the following stipulation: “It is hereby stipulated by and between the parties plaintiff and defendant in the above entitled causes, respectively, that briefs shall be filed in the first numbered case, No. 8611, A. P. S. Stuart against Bank of Staple-burst.

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

<p>1. V/itnesses: Credibility: Review. The credibility of witnesses and tlie weight to be accorded to their testimony are matters, for ' consideration and determination by the triers of facts, and not for the court of review.</p> <p>«. Action for Damages Resulting’ from Sale of Intoxicating Liquors: Verdict fob Plaintiffs. Evidence held sufficient to sustain the findings and verdict of the jury.</p> <p>o. Misconduct of Counsel: Record: Pevtew. Averments in a motion for a now trial of misconduct of counsel in argument to a jury «ill not present such matter for review, in the absence of any other appearance of record of the occurrences upon which the averments are based, or of which they purport to be statements.</p>

<p>Appeal from the district court of Buffalo county. Heard below before Greene, J.</p> <p>References: Jones v. 'Wessd, 40 Neb. 115; Stetson v. Riggs, 37 Neb. 797; Ish v. Finlay, 34 Neb. 419; Rodsden v. Rodsden, 72 N. W. Rép. [Minn.] 562; Wheatley v. Wheatley, 102 la. 737; New York Life Ins. Oo. v. Miller, 32 S. W. Rep. [Tes.] 550; Lovett v. Taylor, 34 Atl. Rep. [N. J.] 896; First Nat. Bank v. Yocum, 11 Néb. 329.</p> <p>References: Schade v. Bessinger, 3 Neb. 140; Roche v. Norfleet, 63 111. App. 612; Stinson v. Anderson, 96 111. 373; Bovee v. Rinde, 135 111. 137; Provart v. Harris; 150 111. 40; Wilson v. Wilson, 158 111. 567; Koehler v. Hughes, 148 N. Y. 507; Jordan v. Davis, 108 111. 336; Prutsman v. Baker, 30 Wis, 644.</p>

<p>1. Contracts: Construction. While a court may construe and enforce contracts duly entered into, it is not the province of the judiciary to make contracts for parties.</p> <p>3.Tender. A tender, to be effectual, must be without conditions and made to the party entitled to receive the same.</p> <p>3. -: Checks. Ordinarily, a bank check is not a sufficient tender of money.</p> <p>4.Parol Evidence: Contracts. A written contract cannot be varied, modified, or contradicted by parol evidence of a iirior or contemporaneous agreement between the parties.</p> <p>5.Appeal: Practice. Rulings on the admission or exclusion of testimony cannot be reviewed where the cause is brought to this court on appeal.</p> <p>6. Contracts: Rescission. One is not entitled to a rescission óf a contract who is unwilling to perform his part of the agreement.</p> <p>7. -: Time of Performance. The contract for the exchange of .lands set out in the opinion construed, and held that the forty, days designated therein for the exchange of deeds did not commence to run from the time the contract was made, but from the effecting of a loan of a certain sum of money stipulated to be made by one of the parties in consummation of the trade.</p> <p>8. Specific Performance. Under the evidence plaintiff was entitled to a specific execution of the contract for the exchange of lands.</p>

<p>Foreclosure: Allegation oe No Proceedings at Law Necessary. In a suit to foreclose a real estate mortgage the petition must allege -whether any proceedings at law have been 'had for the recovery of the debt, or any part thereof; and where the answer is a general denial, there can be no recovery, in the absence of proof sustaining such alleg'atiou of the petition.</p>

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

<p>1. Receivers: Compromise oe Suit. A court appointing a receiver for an insolvent bank may authorize the receiver to settle and compromise a suit instituted by himself in. behalf of the estate, where it appears that as large a sum will probably be realized in that way as if the litigation was continued, or it is disclosed that the best interests of the estate require that such settlement be effected.</p> <p>2. -: Review. An order of the court giving directions or instructions to a receiver in the performance of his trust will not be disturbed on review where no abuse of discretion is shown.</p>

<p>Error from the district court of Dawson county. Tried below before Sinclair, J.</p> <p>. References: Bair v. People’s Bank, 27 Neb. 577; Yan Fleet, Collateral Attack secs. 369, 436, 437, 439, and citations; Maxwell, Code Pleading, 91;-Barnes v. McMurtry, 29 Neb. 178; Hanna v. Emerson, 45 Neb. 708; Scroggin v. Rational Lumber Oo., 41 Neb. 196; Langley v. Ashe, 38 Neb. 53; Winters v. Means, 25 Neb. 142; Chicago, B. & Q. R. Co. v. Manning,, 23 Neb. 552; Gould v. Loughran, 19 Neb. 392; Rorth Pacific Cycle Co. v. Thomas, 38 Pac. Rep. [Ore.l 307; Fiches v. Vick, 50 Neb. 401.</p> <p>References: Walker v. Stevens, 52 Neb. 653; Dailey v. Kinsler, 35 Neb. 836; Cobbey v. Wright, 29 Neb. 274; Dunn v. Haines, 17 Neb. 560; Pearson v. Kansas Mfg. Co., 14 Neb. 211; Cobbey v. Wright, 23 Neb. 250; Allen v. Miller, 11 O. St. 374; Hurlburt v. Palmer, 39 Neb. 175; Rogers v. Green, 33 Tex. 661; Lyman v. Milton, 44 Cal: 630; 24 Am. & Eng. Ency. Law 510, 511; Kellar v. Stanley, 86 Ky. 240; Burleson v. Henderson, 4 Tex. 49; Portwood v. Wilburn, 33 Tex. 713; Graves v. Drane, 66 Tex. 658; Reynolds v. May, 4 Greene [la.] 283; Lewis v. Grace, 44 Ala. 307; Burgeit v. Williford, 56 Ark. 187; Smith v. Morris, 29 Ga. 339; Bank of Havana v. Magee, 20 N. Y. 355; Bentley v. Smith, 3 Cai. [N. Y.] 170; Scottv. Soans, 3 East [Eng.] Ill; Clay v. Oxford, 4 H. & C. [Eng.] 690; Letherbarroio v. Ward, 5 Jur. [Eng.] 388.</p>

<p>1. Stare Decisis. A decision of this court on a former appeal, of a question presented by the record is thereafter the law of the case.</p> <p>2. -: Evidence. When the dvidence is substantially the same as on a former appeal, the weight and effect to be given such evidence must be considered as foreclosed by the former decision on that point.</p>

Heard below before Holmes, J. As to the effect of the assignment see: Oonrady v. By-waters, 24 S. W. Rep. [Tex.] 961; Wood, Landlord & Tenant 737; Jackson v. Davis, 5 Cow. [N. Y.] 124; Bliss v. Gardner, 2 111. App. 422; Fletcher v. McFarlane, 12 Mass. 42. General creditor cannot reach assets or set aside transfers.

Error, from the district court of Dawson county. Tried below before Greene, J. Notice to Hopkins would not establish a waiver of the provision of the policy against additional insurance without consent thereto in writing indorsed on the policy. {Eagle Fire Go. v. Globe Loan & Trust Go. 44 Neb. 380; German Ins. Go. v. Ileiduk, 30 Neb. 288; Hughes v. Insurance Go. of North America, 40 Neb. 626; Burlington Ins. Go. v. Campbell, 42 Neb. 208; Phenix Ins.

<p>1. Jurisdiction: Judgment. A judgment rendered against a party upon whom process has not been served, and who has not submitted to the jurisdiction of the court, is unauthorized and void.</p> <p>2. School Lands: Leases. When the state accepts a statutory application for a lease of school lands, and issues its receipt in due form for an installment of rent paid by the applicant, antecedent conditions being- performed, a binding and enforceable contract is created.</p> <p>3. -: Improvements: Waiver. One who has occupied and improved school lands of the state waives liis right to compensation for the improvements by electing to remove them.</p> <p>4. -: Leases: Resulting Trusts. One who has obtained a lease from the state, with actual or constructive notice of another’s prior claim thereto, will'be treated as holding- such lease in trust for .the person who is equitably entitled to receive it.</p> <p>5. Agency: State. The state is bound by the acts of its authorized agents done within the scope of their authority.</p> <p>6. School Lands: Appraisement. A reappraisement of school' lands which has neither been authorized nor approved by the board of educational lands and funds is absolutely void.</p> <p>7. Review. A finding of the trial court unsupported by any evidence will be set aside.</p>

Heard below before Holmes, J. The remedy is by rescission of the conveyance and compensation for the property taken and the injury done. (Burk v. Bowles, 69 Ind.' 1; Kerr, Fraud & Mistake [Bump’s ed.] 339; Blanchard v. Detroit, L. A L. M. R. Co., 31 Mich. 44.) The judgment must be reversed, though plaintiffs are not entitled to rescission, and the remedy be at law.

<p>Stare Decisis. This case is ruled by Moseley v. OMcago, B. & Q. B. Go,, 57 Neb. 636, the questions for decision in both cases being substantially identical. - . ;</p>

<p>Error from the district court of Douglas county. Tried below before Ambrose, J.</p> <p>References: Watson v. Tronible, 33 Neb. 450; StoeJcmeyer v. Tobin, 139 U. S. 190; Sessions v. Irwin, 8 Neb. 9; Bossa v. Roioe, 30 111. 198; Minnesota Go. v. St. Paul Go., 2 Wall. [U. S.] 631; Blossom v. Milwaukee A G. R. Go., 3 Wall. [U. S.] 207; Borer, Judicial Sales [2d ed.] sec. 9.</p> <p>Appraisals for judicial sales will not be set aside except for fraud. ('Vought v. Foxworthy, 38 Neb. 790; Smith v. Foxtcorlhy, 39 Neb. 214; FJohlund v. Willis, 44 Neb. 129.)</p> <p>Deputy sheriff may act. {Earner v. McKinley-Fanning Loan A Trust Go., 52 Neb. 709; Nebraska Loan A Building Ass’n v. Marshall, 51 Neb. 534.)</p>

<p>Appeal from the district court of Gage county. Heard beloAV before Letton, J.</p> <p>References: City of Hastings v. Foxworthy, 45 Neb. 676; Porter v. Sherman County Banking Go., 40 Neb. 274; Badger Lumber Go. v. Holmes, 55 Neb. 473; Thomas v. Thomas, 33 Neb. 373; State v. Gomel!, 52 Neb. 25; Sharpless v. Gifen, 47 Neb. 146.</p> <p>References: State v. Sheldon, 26 Neb. 151; Merriam v. Gordon, 20 Neb. 405; Anglo-American Land Go. v. Brohman, 33 Neb. 409; Lancaster County Bank v. Gregory, 24 Neb. 656; Homan v. Steele, 18 Neb. 652; Smith v. Schaffer, 29 Neb. 656; Oliver v. Lansing, 51 Neb. 818; Gaines v. Rugg, 148 U. S. 228; Sexton v. Henderson, 47 la. 131; Sanxey v. loica City Glass Co., 68 la. 542; Garmoe v. Windle, 76 la. 239; Adams County r. Burlington cG M. R. H. Go., 55 la. 94; Austin r. Wilson, 57 la. 586; Kurtz v. St. Paul & D. R. Co., 67 N. W. Rep. [Minn.] 809; Butler v. Barnes, 61 Conn. 399; Kavanagh v. Barber, 22 N. Y. Supp. 874; O’Riley v. Diss, 48 Mo. App. 62; Miner v. Medbury, 7 Wis. 90; Carney v. Emmons, 9 Wis. 109; Roberts v. Corbin cG Co., 28 la. 355; City of Chicago v. Gregsten, 45 N. E. Rep. [111.-] 505; Sanders i\ Peek, 131 111. 407; Pattern Paper Co. v. Green Bay Canal Co., 66 N. W. Rep. [Wis.] 601; Treadway v. Johnson, 39 Mo. App. 176; Whitney v. Tray nor, 45 N. W. Rep. [Wis.] 550; National Investment Co. v. National Savings Loan cG Building Ass’n, 53 N. W. Rep. [Minn.] 546.</p>

<p>1. Mechanics’ Liens: Ciiabacteb of Materials. Section 1, chapter 54, Compiled Statutes, gives 'a right of lien in two classes of cases, one of which is for mal erial furnished, hut this does not necessarily imply raw material in the condition in which it is actually furnished or delivered.</p> <p>2, -; Account. A running account, or an account made up of items which may be tacked to constitute a single account, must be considered and classified by referring, among other considerations, to the intention of the parties as manifested by their contemporaneous conduct with reference to the transactions involved, and thus tested, the rights of a litigant hex’ein are de- ' termined.</p> <p>3. -: Priority ob Mortgage. A mortgage filed during- the erection of a building on the premises mortgag-ed (has priority over the rights of a person who subsequently began to furnish material for such erection.</p>

<p>Error to the district court for Cherry county. Tried below before Kinkaid, J.</p> <p>References: Maxwell, Criminal Procedure 383; Wallridge v. State, 13 Neb. 236; Sumner v. State, 5 Blackf. [Ind.] 579; Oommomocalth v. Webster, 5 Cush. [Mass.] 296; 1 Greenleaf, Evidence secs. 33, 34.</p>

<p>Appeal from the district court of Hamilton county. Heard below before Sedgwick, J.</p> <p>References: Roberts v. Robinson, 49 Neb. 717; Corey v. Plummer, 48 Neb. 481; Mansfield v. Gregory, 11 Neb. 297; Galway v. MalcJiow, 7 Neb. 285; Dorsey v. Ball, 7 Neb. 460; Berkley v. Lamb, 8 Neb. 399; Hoy v. Anderson, 39 Neb. 386; Mundt v. Ragcdorn, 49 Neb. 409; Giles v. Miller, 36 Neb. 346; Schriber v. Plait, 19 Neb. 625; Baumann v. Frame, 37 Neb. 807; If ooper v. Casietter, 45 Neb. 67; Foeth v. Learny, 23 Neb. 267.</p> <p>References: 1 Black, Judgments (1891 ed.) secs. 359, 366, 400; St. ■Joseph Mfg. Co.-v. Daggett, S4 111. 556; Waples, Homestead & Exemptions, p. 23, par. 13, p. 208, sec. 1.</p>

<p>Error from the district court of Cedar county. Tried below before Norris, J.</p> <p>References: Tootle v. Mgutter, 14 Neb. 158; Riudge v. Judson, 24 N. Y. 64; Taussig v. Reid, 145 111. 488; Gates v. McKee, 13 N. Y. 232; Rice v. Loomis, 139 Mass. 302; 9 Am. & Eng. Ency. Law 77; 'Wilcox v. Draper, 12 Neb. 138; Lawrence r. McOahnout, 2 How. [U. S.] 426; llargrcave v. Smee, 6 Bing. [Eng.] 244.</p> <p>References: Brandt, Suretyship & Guaranty [2d ed.] sec. 93; Bank of Commerce v. Selden, 3 Minn. 99; Selden v. Bank of Commerce, 3 Minn. 109; Osborne v. Slone, 30 Minn, 25; Levi v. Latham, 15 Neb. 509; 2 Daniel, Negotiable Instruments [1st ed.] 660; Winnebago Paper Mills v. Travis, 5S N. W. Rep. [Minn.] 36; Crane Co. v. Spechi, 39 Neb. 123; Liuinger v. Webb, 51 Neb. 10; Columbus Seicer Pipe Go. v. Causer, 25 N. W. Rep. [Mich.] 377; Morgan v. Boyer, 39 O. St. 324; Birdsall v. ¡Peacock, 32 O. St. 177; Selmarlz v. Hyman, 14 N. E. Rep. [N. Y.] 447; Smith v. Van Wyek, 40 Mo- App. 522; Historical Publishing Co. v. La Vague, 66 N. W. Rep. [Minn.] 1150,</p>

<p>Judicial Sales: Decree Sele-Operating. A decree of the district court directing the sale of real property to be made by the sheriff need not be supplemented by a formal order of the cleric of the district court to give efficacjr to such decree.</p>

<p>Error from the district court of Douglas county. Tried below before Fawcett, J.</p> <p>References: Dixon Nat. Bank v. Omaha Nat. Bank, 54 Neb. 796; Drake, Attachment secs. 496, 509, 509»; Gaither v. Balleto, 4 Jones Law [N. Car.] 488; Weaver v. Davis, 47 Ill. 235; Williams v. Jones, 38 Md. 555; Oppenheimer Marr, 31 Neb. 811.</p>

Heard below before Dueeie, J. Tbe burden of proof is upon tbe defendant. (Miller v. Hurford, 13 Neb. 11; Adams v. Osgood, 12 Neb. 150; Towle v. Holt, 11 Neb. 221; Dillon v. Merriam, 22 Neb. 151; Bryant v. Estalrooh, 16 Neb. 217.) Tbe defenses alleged in tbe answer are technical, and are not a defense to an action for tbe foreclosure of a tax lien.

<p>. Error to the district- court for Douglas county. Tried below before Slabaugi-i, J.</p> <p>References: Greenleaf, Evidence; sec. 54; State v. Fitzsimmons, 9 Am. Grim. Rep. [R. I.] 347; McCombs v. State,. 8 O. St. 643; State v. Forshner, 43 N. H. 89; Wharton, Criminal Law secs. 226, 311,1151; State v. Bryan, 34 Kan. 63; ingrain v. Plashett, 3 Black! [Ind.] 450; Snowden A United States, 9 Am. Grim. Rep. [D. 0.] 449; Hardthe v. State, 67 Wis. 554; Glovgh v. State, 7 Neb. 3A2; Yeomahs v. State, 21 Neb. 176.</p>

<p>1. Public Lands. At the time of the admission into the Union of the state of Nebraska- the lands therein occupied in common by the Pawnee Indians, and known as the “Pawnee Indian Reservation,” were public lands within the meaning' of section 13 of the act of congress known as, the enabling act. (13 U., S. Statutes at Larg-e 47.)</p> <p>2. -: Title. The fee simple title to said lands at said time was- - in the United States, incumbered only with the right of said Indians to occupy the same. .</p> <p>3.-----: Sale: Application op Proceeds. By section 12 of said enabling act congress granted to the state of Nebraska five £.>er cent of the iiroceeds arising- from the sale of said lands, which took effect upon the extinguishment of the Indians’ right of occupancy and the sale of the lands by the United States.</p> <p>4. Claims Against State: Compensation op Agent. State v. Kennard, 56 Neb. 254, reaffirmed.</p>

Hear below before Duffie, J. A mere power of sale does not confer upon the donee of the power authority to execute a mortgage.

Error from tlie district court of Dakota county. Tried, below before Evans, J. Tlie petition is defective because it nowhere alleges that an execution had be.eil issued and returned before the commencement of suit. (Brandt, Suretyship & Guar'anty [2d ed.] sec. 4(50; Cooper v. Rhodes, 30 La. 533; Pinard r. George, 30 La. 384; Staley v. Howard, 7 Mo.

<p>1. Divorce: Vacating Decree After Term. Where, in a divorce proceeding, a decree is entered dissolving a marriage, and awarding the wife -a judgment ag'ainst the husband for $- in full of all her claims upon him or his property by reason of. their former marriage relations, it seems that the courts have no " jurisdiction to vacate or modify such a judgment, after the term at which rendered, solely because of a change in the circumstances, financial or otherwise, of either of the parties thereto.</p> <p>2. -: -. Such a judgment is a judicial determination of the share of the husband’s property to which the wife is entitled as permanent alimony, and is final and conclusive unless modified or vacated in a direct proceeding.</p> <p>3. --:--: Grounds. If, bjr reason of a ehang’e in the circumstances or conditions of either or both the parties, the courts have jurisdiction to vacate or modify such judgment after term, the fact that the property of the ¡husband has depreciated in value, because of drouths and crop failures since the entry of the judgment, is not sufficient to .support a decree modifying' or vacating such judgment.</p> <p>4. -: -: Statutes. It seems that section 27, chapter 25, Compiled Statutes, is not applicable to such a judgment as mentioned above, but to an award for alimony payable so much weekly, monthly, etc., until the further order of the court.</p>

<p>1. Pleading: Shan Denial. -An averment in an answer that the defendant is ignorant of certain matters alleg-ed in the petition, and therefore aslcs strict proof, is not a denial and presents no issue.</p> <p>3. Married. Women: Coverture: Pleading. A jilea of coverture must negative the conditions under which a married woman is by statute permitted to contract.</p> <p>3. -: --: --. A plea of coverture which merely asserts that'the defendant or her sejiarate estate received no benefit_ from the contract is insufficient.</p> <p>4. --: Suretyship. Within the limits of her general contractual ■ power a married woman may enter into a contract of suretyshij).</p>

<p>1. Witnesses: Oath. If on irregularity in the manner of administering an oath to a witness be known at the time, objection must then be made, or it will be waived,</p> <p>'a. Arbitration and Award: Separate Findings. , Under the statute relating' to arbitrations, the arbitrators must in their award state separately their finding's of fact and conclusions of law; but this requirement is met if the finding' be as certain as is required of the verdict of a jury.</p> <p>3. -: -. A single cause of action having been submitted to arbitration, an award whereby the arbitrators “find for ihe'p'aintifE, assess her damag'es” at a.sum named, and “award” her that sum is a sufficient separate finding of facts and of law.</p> <p>4. -: Award by Two oe Three Valid. A submission to arbitration provided for three arbitrators, that the award might be made by any two, and if so made would be binding. It also ■ provided that the award should be in writing, signed by the three arbitrators named. Hold, That the last provision should not be so construed as to nullify that for an award byr two, but that it meant that the award must be signed by those of the arbitrators concurring' therein.</p>

Tried below before Scott, J. The petition for the writ in the habeas corpus proceeding ivas insufficient. (Church, Habeas Corpus secs. 89, 90, 112; Ex parte Eye, 8 Kan. 99; State v. Ensign, 13 Neb. 250.) Even if the district judge was authorized to enter the order for the production of the children, he had no power to proceed in vacation to attach and punish the plaintiffs as for contempt of court.

<p>Creditors’ Bill: Question oe Fact. In a suit in the nature of a creditors’ bill only a question of fact was presented. Decree of the district court held to be sustained by the evidence.</p>

Heard below before Marshall, J. The fraudulent release, like a forged release, furnishes no protection to, -a bona fide purchaser. (.Keller v. Hannah, 52 Mich. 535; Baily v. Smith, 14 0. St. 396.) Assignments are not within the recording acts. (Martindale, Conveyancing- [2d ed.] sec. 471; Powell v. Webster, 4 Rawle [Pa.] 247; Moll v. Clark, 9 Pa. St. 399; Reeves r. Hayes, 95 Ind. 527; Bamberger v. Geiser, 33 Pac. Rep. [Ore.] 609; Oregon Trust- Co. v..

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

<p>1. Appeal: Exclusion oe Evidence. The decision of a trial court in a cause in which there was a trial to the court without a jury cannot, in an apjieal to this court, be assailed because based on the evidence from which there had been an improper exclusion of a portion from consideration, where it does not appear of record that any portion of the evidence was so excluded.</p> <p>2. Review. The findings of a trial court based upon conflicting evidence, if not clearly wrong, will not be reversed.</p> <p>3. Mortgages: Foreclosure: Sale: Inverse Order. A tract of land was mortgaged as an entirety, then platted and made an addition to a city, and a number of lots at different times and to different persons sold and conveyed, after which the mortgage was foreclosed. Held, That under the conditions and circumstances disclosed in evidence the decree of the court that the land be sold • as an entire tract, and a denial of the prayer of the mortgagors that it be sold in lots as platted, and in the inverse order of alienation or conveyance by them, was not erroneous or inequitable.</p>

<p>1. Sales: Breach or Warranty: Rescission. If a contract oE sale of personalty is executory ami accompanied by a warranty of the quality of the property or ihat it. is to be fit or suitable for a specified purpose, and if it is not, may be returned, and the consideration not paid, there may be a rescission for a breach of the warranty.</p> <p>2. ■ — ——•: --■:---: Notice. To woilc a rescission there must be notice thereof t.p the veiidoy and an oJl'er to return the property.</p> <p>3. -:--: -: -. The offer to return shown in the present case held sufficient, in view of all the facts and circumstances of the transaction.</p>

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

<p>1. Bill of Exceptions: Authentication. If a bill of exceptions lacles íui then ti cation, it will not be considered.</p> <p>3. -: Evidence Disregarded. If there is no bill of exceptions, a question, the consideration of which necessitates an examination of the evidence, will be disregarded.</p>

<p>Appealable Order: Fixing Suipeesedeas Bond. An appeal will not lie from an order fixing the amount of a supersedeas bond in an application for, and in response to which there has been allowed, a writ of assistance to gain possession of real property purchased at -judicial sale.</p>

<p>1. Instructions: Repetition. It is not error to refuse to give an instruction, the substance of which, is embodied in one given in charge to the jury.</p> <p>2. —-: Discrediting Evidence. An instruction which refers to a designated portion of evidence in such manner as to tend to wholly discredit it in the estimation to he given it hy the jury may be refused.</p> <p>3. Note: Indorsement: Evidence. In an action between an indorsee of a promissory note and the maker, the admissions or statements of the indorser made subsequent to the indorsement may not be received in evidence to impeach the validity or weaken the force of the indorsement or the transfer of title evidenced by it.</p> <p>4. Witnesses: Cross-Examination. A party may not cross-examine a witness in reg'ard to matters of which said party conld not introduce evidence in chief on his part, or as such evidence in chief, and afterwards contradict the answers to the cross-exam- ' ination. (Johnston v. Spencer, 51 Neb. 198; Myers v. State, 51 Neb. 517.)</p> <p>5. Review: Conflicting Evidence. A verdict on conflicting evidence, of which there is sufficient favorable to sustain it, will not be disturbed on review.</p>