Volume 58 — Nebraska Reports

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

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

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

<p>1. Infants: Liability eok Torts. An infant who hires a team and buggy for a specified journey, and drives to another place and in a different direction, takes upon himself all the consequences following therefrom. If the team is injured or the buggy is broken while being so driven, he is liable in damages for the tort, and his infancy is no protection to him.</p> <p>B. Evidence: Admissions. Admissions or statements made by a party to a suit against interest upon a material matter may be proved without laying the foundation required in impeaching- a disinterested witness. -</p> <p>3. -: Review. To obtain a review of the ruling's of the trial court on the admission of evidence the particular rulings assailed must be specifically assigned in the petition in error.</p>

Error from tlie district court of Douglas county. Tried below before Hopewell, J. References as to- the proper use of party walls: Af line's Appeal, 81 Pa. St. 54; Tollmen's Appeal, 61 Pa. St. 118; Sullivan v. Graff ort, 85 la. 531; Daucnhaucr v. Devine, 51 Tex. 480; Gibson v. Holden, 115 111. 199; Hendricks v. Stark, 37 N. Y. 106; Andrea v. Haseltine, 58 Wis. 395.

Error from the district court of Douglas county. Tried, below before Dickinson, J. The statutes contain numerous provisions which require void taxes to be refunded to the payer thereof.

Error from the district court of Lancaster county. Tried below before Holmes, J. The fact that E. E. Spencer had already obtained judgment should not interfere with his pleading that judgment in set-off.

<p>1. Bigamy. A married person will not be absolved from the bonds of matrimony by believing, even upon information apparently reliable, that the marriage has been dissolved by death or divorce. ' Public policy forbids that the permanence of the marriage relation should depend upon anything so precarious as the mental state of one of the parties.</p> <p>3.-. Whether in a prosecution for bigamy an honest and reasonably grounded belief entertained by the defendant in the death of an absent spouse is of itself a complete defense, qucere.</p> <p>3. -: Evidence. In a prosecution for bigamy it is prejudicial error to permit the state to reinforce a disputable presumption in regard to the capacity of one of the parties to contract a valid marriage, by the introduction of incompetent evidence directly bearing- upon the question.</p> <p>4. -: Divorce: Prooe. To prove a divorce the record of the decree, or a duly authenticated copy thereof, is the appropriate and only competent evidence.</p> <p>5. Review: Exceptions. In the absence of an exception a ruling made by the district court during the progress of the trial cannot be reviewed.</p> <p>6. Presumptions: Evidence. When a rebuttable presumption possessing- no inherent probative force is met by oj)posing evidence, it is entirely destroyed and ceases to be a factor in the trial, unless it be required to turn an evenly balanced scale.</p>

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

<p>Original application for mandamus to require respondent to allow and sign a bill of exceptions.</p>

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

<p>1. Review: Exceptions. An interlocutory order to which no exception has been taken cannot be reviewed.</p> <p>2. Appeal. In a cause brought to this court by appeal the judgment will not be reversed if it responds to, and is warranted by, the pleadings and proof.</p>

<p>Negotiable Instruments: Set-Oee. In an action against the maker of a promissory note he cannot plead as a set-off an amount due from plaintiff to a society, of whose funds the defendant, as an officer, is custodian.</p>

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

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

<p>1. Error Proceedings: Motion eor New Trial. Where there was filed in the district court no motion for a new trial, the supreme court will only look into the record to ascertain if the pleadings support the judgment sought to be reversed by error proceedings.</p> <p>2. Review. The issues in this case considered, and held to support the judgment of the district court.</p>

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

<p>Appeal from the district court of Madison county. Heard below before Robinson, J.</p> <p>References: Kutz v. McGune, 22 Wis. -628; Pomeroy v. Milwaukee & O. R. Go., 25 Wis. 643; Scribner v. Holmes, 16 Ind. 142; Milwaukee & N. B. Co. v. Strange, 63 Y/is. 179; Chicago & P. B. Go. v. Shepherd, 39 Neb. 523; Omaha, S. B. Co. v. Beeson, 36 Neb. 362; Ilymes v. Esty, 22 N. E. Rep. [N. Y.] 1087; WhUbcck v. Cook, 15 Johns. [N. Y.] 483; Huyelo v. Andrews, 113 N. Y. 85; Wilson v. Cochran, 46 Pa. St. 229; Purkiss v. Benson, 28 Mich. 538; In re Bobbins, 24 N. W. Rep. [Minn.] 356; City of Cincinnati v. Braehman, 35 O. St. 289; Trice v. Kayton, 84 Ya. 217.</p> <p>References: Grand- Trunk B-. Go. v. Dyer, 49 Yt. 74; Welder v. Hunt, 34 Tex. 44; Coitingham v. Parr, 93 111. 233; Piper v. True, 36 Cal. 606; Wagner v. Gage County, 3 Neb. 243.</p>

Heard below before Powell, J. If it be doubtful or contingent whether acts will constitute a nuisance, injunction will not be granted until actual demonstration. (McCord v. Iker, 12 O. 387; Upjohn v. Board of Health, 46 Mich. 542; Rhodes v. Dunbar, 57 Pa.

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

<p>1. Judicial Sales: Appraisement. It was never the intention of the legislature that the honest valuation placed upon property for purposes of judicial sale by legally qualified appraisers should be set aside by tlie coirris because other persons differed in opinion as to tlie value of such property.</p> <p>2. -: -. The legislature lias not left it for the courts to say, when a piece of property lias been sold, whether the price bid for it was two-thirds of its fair cash value, but created a tribunal to ascertain and determine its value before its sale.</p> <p>3. •-: -. The meaning of the appraisement law is that the valuation placed by appraisers upon real estate is conclusive unless it bo set aside because the appraisers were not legally qualified or because they acted fraudulently in making- the appraisement, or for some other equally potent reason.</p> <p>4. -: Liens. The owner o I! the equity of redemption in rea.l estate cannot be heard to object to the confirmation of a sale made thereof because an incumbrance upon the property prior to the one under which it was sold was not deducted from the valuation placed on the propierty by the appraisers.</p>

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

<p>1. Guardians: License to Sell Real Estate: Bond. The provision ol the statute (Compiled Statutes 1897, ch. 23, sec. 54), requiring a guardian licensed to sell the real estate of his wards to give a bond to the judge of the district court, to be approved by such judge, is mandatory.</p> <p>3. -: -: -. The district courts are not invested with discretion to require or not a guardian appointed in this state, when licensed to sell lands in this state of his wards, to give the bond required by said section 54.</p> <p>3. -:--: -. Such a guardian’s sale of the lands of his ward is void unless, before such sale, the guardian executes the bond required by said section 54. The judg-e of the district court granting the license must be the obligee in the bond, and it must be approved by such judge.</p> <p>4. -: -: Construction oe Statute. The clause “in case any bond is required by the court on granting- the license,” found in section 64 of said chapter 23, has reference to sales o£ real estate in this state made by foreign guardians who have g-iven bonds to the courts appointing them.</p> <p>5. —:-: -: Oatii. The failure of a guardian licensed to sell the real estate of his wards to take and subscribe the oath required by section 55 of chapter 23, Compiled Statutes 1897, “before fixing- on the time and place of sale” renders the sale, if made, void.</p> <p>6. -: Sale oe Ward’s Real Estate: Notice. The date of the first publication of the notice of sale is the date on which such a guardian fixes on the “time and place of sale.”</p> <p>7. - — : -: Estoppel. Heirs, on becoming of age, are not es-topped from questioning the validity of a sale of their real estaie made by their guardian because he applied the proceeds of such sale to their maintenance and education.</p> <p>8. -: -: Caveat Emptok. The rule of caveat emptor applies to a purchaser at a guardian’s sale of the real estate of his ward.</p> <p>9. Case Distinguished. Myers v. McGavoch, 39 Neb. 843, distinguished.</p>

<p>Guardian and Ward. On the authority of Bachelor v. Korb, 58 Neb. 133, the judgment of the district court in this case is reversed.</p>

<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 Hall, J. The official report is a public representation, and plaintiff had a right to rely on it. (.Bartholomew v. Bentley, 15 O. 666; Merchants Nat. Bank v. Thoms, 28 W. L. B. [O.] 164; Morse v. Swits, 19 How. Pr. [N. Y.] 275; Prescott v. Haughey, 65 Fed.

<p>Liquors: License: Suspension: Repayment oe Fee. Where a liquor license was issued, an appeal then taken and the license suspended, the appeal finally determined in favor of the applicant and the license reissued, held, following the principle of former cases, that the licensee was entitled to repayment of such proportion of the license fee as the time when his enjoyment of the license was suspended bore to the license year.</p>

<p>Review. No question of law is presented in. this case. Evidence held to sustain the verdict.</p>

Error from the district court of Lancaster county. Tried below before Hall, J. Defendant’s power to contract is .not made to depend upon the fact of there being money in the treasury at the time sufficient to-liquidate the indebtedness so incurred. (Police Jury v. Britton, 15 Wall. [U. S.] 566; Brenham v. Banlc, 12 Sup. Ot. Rep. 559; Claiborne County v. Broolcs, 4 Sup. Ot.

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

<p>1. Pai’ties: Defect: AVaiver. A railroad company made with two persons a contract, in form joint, for the transportation of horses, a portion of which belonged to one of the shippers and the remainder to the other. None was owned in common. The horses of one were injured, arid he sued, naming the other as a defendant because he refused to join as plaintiff. No objection was made for defect of parties until the trial began. ’ Held, AVithout deciding how an action in such case should be brought, that the railroad company could not complain because one of . three situations must exist: The suit was sufficiently brought by the person whose stock was injured, as the real party .in interest; or else it was sufficient to make the other a defendant alleging that he would not join as plaintiff; or if he must necessarily have joined as plaintiff, the defect appeared on the face of the petition and was waived by not demurring on that ground.</p> <p>2. -: -; Explanation. Section 4? of the Code of Civil Procedure, requiring- a-person who should have been joined as plaintiff, but who refuses, to be. made a defendant, the petition stating- the reason, requires the reason for not joining- him — that is, • his refusal — to be stated, and not his reason for such refusal.</p> <p>3. Depositions: Exceptions. An excejition other than for incompetency or irrelevancy, made to a deposition, must^ be filed before the trial commences, but unless one of the parties so demands, it need not be ruled on prior to the trial.</p> <p>4. -: Time of Piling. To secure a reversal error must affirmatively appeal*. Therefore, when it appears that exceptions to depositions were filed the day the trial began, it will not be presumed that they were filed after the commencement of the trial, although it appears they were not called to the attention of the court until jurors had been called into the box.</p> <p>5. Common Carriers: Contracts. In an action on a contract of shipment, not naming the carrier, evidence examined, and held to sustain a finding that the defendant was the carrier making- the contract.</p> <p>6. Pleading: Negligence. A general averment that the defendant was negligent, without setting out the negligent acts or omissions, is sufficient, unless the pleading be attacked by motion.</p> <p>7. Review: Offer of Proof. Assignments of error based on the exclusion of testimony are unavailing-, unless when the ruling- was made the party complaining made a tender of the proof he expected to elicit.</p> <p>8. Common Carriers: Limiting Liability. The rules announced in St. Joseph & G. I. R. Co. v. Palmer, 38 Neb. 463, and Atchison, T. & S. F. R. Co. v. Lawler, 40 Neb. 356, with reference to contracts limiting the liability of common carriers, reaffirmed.</p>

<p>Right of Way: Abandonment: Trespass. The construction of a fenced lane across the right of way of a railroad" company and "beneath a bridge carrying the tracks, so as to provide a subway for the passage of live stock, is not so foreign to the purposes of a grant of land for railroad purposes that the grantor can complain thereof as an abandonment of the right of way granted or as a trespass upon his reversionary rights.</p>

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

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

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

Error from the district court of ■ Lancaster county. Tried below before Cornish, J. In order to constitute an unjust discrimination there must be a difference in rates under substantially similar conditions as to service.

<p>1. Rules of Court: Construction. If there is room for construction, that given to its rules by a court or a judge thereof will generally be accepted as conclusive.</p> <p>2. Bill of Exceptions: Extension oe Time: Notice. Notice of an application to a judge of the district court for an extension of time within which to prepare and serve a bill of exceptions is not indispensable- to jurisdiction.</p> <p>3. Rules of Court. The rules of this court are not necessarily governable in matters before the district courts or the judges thereof. The portion of section 899, Code of Civil Procedure, which made them so was applicable, when enacted, to the courts as then organized and the existing- conditions, but the constitutional '¡changes in the organization of the courts and the changes in the conditions have rendered it inapplicable.</p> <p>4. Bill of Exceptions: Allowance: Notice. No notice of the presentment of the bill of exceptions to the trial judge for settlement and allowance is required unless amendments to the bill have been proposed and not accepted.</p>

Tried’below before Kinkaid, J. Under a charge that accused committed an assault with intent to inflict great bodily injury he cannot be convicted of assault and battery. (Smith v. State, 34 Neb. 689; State v. McDevitt, 29 N. W. Rep. [la.] 461; State v. McAvoy, 35 N. W. Rep. [la.] 631; Turner v. Muskegon, 50 N. W. Rep. [Mich.] 310; Territory v¡ Dooley, 1 Pac.

Error from the district court of Douglas county. Tried below before Dioicinson, J. Heard on motion to dismiss petition in error and on merits of tbe case.

<p>1. Review. Abstract oe Record. In. a canse submitted nnder section 1 oí rule 2 of the supreme court on an agreed printed abstract the court will not look beyond the abstract, and unless error affirmatively appears therefrom the judgment below will be affirmed.</p> <p>2, -: -. Where a cause brought to this court on error is submitted under section 1 of rule 2, the printed abstract must include the petition in error, or an abstract of the assignments of error therein contained, and a failure in that regard will work an affirmance of the judgment.</p>

<p>Attachment of Mortgaged. Chattels: Validity: Parties. A mortgagee of chattels upon which an order o£ attachment has been levied cannot question the existence of the grounds for the issuance of the writ. To the attachment debtor alone belongs that right.</p>

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

<p>1. Criminal Law: Instructions: Assuming Facts. In the trial of a criminal case the court is not ordinarily justified in assuming the existence of any material fact put in issue by the plea of not guilty; but there is not an assumption pf any fact in an instruction plainly professing to be a mere statement of the material averments of the information.</p> <p>2. -: -: Insanity: Burden oe Proof. In a criminal prosecution it is reversible error to instruct the jury upon the question of insanity that the burden of proof shifts from the prisoner to the state during the progress of the trial.</p> <p>3. --•: --: -. But the court in its charge may properly say that when the presumption of sanity encounters opposing proof the burden is upon the state to satisfy the jury, by evidence beyond a reasonable doubt, that the accused was sane at the time he committed the alleged criminal act.</p> <p>4. -: -: -. One suffering under a defect of reason to such an extent that he was incapable of distinguishing between right and wrong with respect to a particular act is not amenable to the laws against crime for having committed such act.</p> <p>5. ■ — -: -: -. And it is prejudicially erroneous to inform the. jury in a criminal case, where the defense is insanity, that want of capacity on the part of the prisoner to understand the nature of the act in question, at the time of its commission, is necessary to render him irresponsible.</p> <p>6. -: Counsel eor State. Whether the court might properly permit private counsel in a criminal case to make an argument ,to the jury on behalf of the state when such counsel did not appear in his professional character until the evidence was closed, quaere.</p> <p>7. -: Evidence oe Ownership. ” It is competent to prove the ownership of a store building by parol evidence when it does not appear that such building is real estate.</p> <p>8. -: Evidence oe Other Grimes. Where a person is charged with the commission of a specific crime, testimony may be received of other similar acts, committed about the same time, for the purpose only of establishing the criminal intent of the accused.</p> <p>9. Arson: Insurance: Evidence oe Contract. On the trial of a person informed against for burning property with intent to prejudice an insurance company, where the accused refuses to produce the policies of insurance, secondary evidence is competent to show the contents of the policies, that they were made out and delivered by an authorized agent of the companies, and that defendant was claiming indemnity under them.</p>

<p>1. Pleading: Inconsistent Defenses. An answer in an action on an account for services which contains a general denial of the essential facts of the petition and avers that the charges in the itemized account are unreasonable and unjust does not present inconsistent defenses.</p> <p>3. -: -. A defendant may plead as many grounds of defense as he may have, provided they are not so repugnant that if one be true another must be false.</p> <p>3. -: Amendments. Prejudicial error cannot be predicated on an order allowing a pleading to be amended when the amendment does not change the issues, nor affect the quantum of proof as to any material fact.</p> <p>4. Physicians: Action foe Services: Expert Evidence. In an action to recover for services rendered it is error to exclude the testimony of a witness who has shown himself qualified and competent to testify as to the character and value of the services.</p>

<p>1. Delivery of Property to Carrier: Evidence: Bill od Lading. The bill of lading and way-bill made by the authorized agent of a common carrier of freight are competent evidence tending to prove that the articles -therein described were delivered to such carrier for shipment.</p> <p>2. Findings of Jury: Conducting Evidence: Review. The conclusion deduced by a jury from fairly conflicting evidence will not be set aside where (here is nothing to indicate that such conclusion was the result of rash, partial, or intemperate action.</p>

<p>1. Eminent Domain: Railroads: Adjacent Landowners: Damages. When a railroad has been eonstrnoted and put in operation, an adjacent landowner may sue at once for consequential damages to his property and recover in the action full compensation for all injuries which he has' sustained, or which will ever afternurds accrue, from a prudent and careful operation of the road.</p> <p>2. -: ■ — -—■—: -: -: Time to Sue. But such action need not be commenced immediately. A party may ivait, within the period of limitation, until the extent and character of the injury to his property has been ascertained by experience and made ' susceptible of absolute proof.</p> <p>3. -: Measure oe Damages. Where property has been taken or damag-ed for a public use, the owner is entitled to recover as compensation the difference between the value of such property immediately before and immediately after the completion of the improvement from which the injury results.</p> <p>4. '•-:--. The jury in fixing the damages sustained by a landowner in consequence of the appropriation, or injury, of his property for a public use may take into account every element of annoyance and disadvantage resulting from the improvement which would influence an intending purchaser’s- estimate of the market value of such property.</p> <p>5. Striking Out Evidence' Erroneously Admitted. Where evidence improperly received is afterwards stricken out and expressly withdrawn from the consideration of the jury,-the error involved in its reception is ordinarily cured.</p> <p>6. Pleading: Separate Causes oe Action. Where distinct causes of action are blended in the petition, the only appropriate remedy is a motion for an order requiring a separate statement and designation.</p> <p>7. Review: Questions Not Raised Below. It is a general rule, to which the record in this case presents no exception, that objections not urged in the trial court will not be considered here.</p>

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

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

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

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

<p>Death by Wrongful Act: Pleading: Pecuniary Injury. In an action for damages under the provisions oí chapter 31, Compiled Statutes, a petition is fatally defective which discloses no survivor entitled by law to support by the person deceased, and in which, with reference to such survivor as is described, there is no averment of pecuniary injury.</p>

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

<p>Appeal from the district court of Dawes county. Heai'd below before Baiitow, J.</p>

<p>1. Administrator’s Bond: Obligee. To constitute a valid administrator’s bond some person or officer must be named therein as obligee.</p> <p>3. -: -: County Judge. A writing purporting to be an administrator’s bond, signed by principal and sureties, approved and filed by the probate court, in which no person or officer is named as obligee is neither a statutory nor a common-law bond. It is simply a promise in writing made to no one, and is void.</p>

<p>Affirmance of Judgment: Review. The record presents no question of law. Evidence examined, and 7will to sustain the verdict of the jury. .</p>

Error from the district court of Lancaster county. Tried below before Holmes, J. Usury should be specially pleaded. (Dios v. Van Wyclc, 2 Hill [N. Y.] 522.) An account cannot be adjusted in replevin. (Whit-worth v. Thomas, 83 Ala. 308; Otter v. Williams, 21 111. 118; Stow v. Yancood, 14 111. 427; Keaggy v. Hite, 12 111. 101; Streeter v. Streeter, 43 111. 155; Mclntire v. Eastman, 76 la. 455.) Set-off is not generally allowed in replevin.

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

<p>1. Illegal Taxes: Recovery for Payments. The statutes provide two methods of recovering back illegal taxes paid under protest. When the tax is imposed on land not subject thereto or which has been twice assessed for the same year, the person paying the tax must present a claim to the county board, and if it be not allowed, he must, if he wishes further to contest, appeal to the district court; but if the tax be levied for an illegal or unauthorized purpose, or if the tax be bad for any other cause not falling within the first class, he may maintain an original action therefor. Chicago, B. & Q. K. Co. v. Nemaha County, 5Ó Neb. 393, followed.</p> <p>2. Taxation: Limitation. When taxes levied by a county exceed the maximum permitted by the constitution, the excess is levied for an illegal and unauthorized purpose. Chicago, B. & Q. B. Co. v. Nemaha County, SO Neb. 393, followed.</p> <p>3. -: -. The constitution permits a levy of taxes by a county in excess of IS mills on the dollar valuation in only two classes of cases: First, to pay debts existing- when the constitution was adopted; and secondly, when authorized by a vote of the people. This brings within the general limitation taxes levied to pay judgments rendered against the county on debts not contracted before the constitution was adopted, when such additional levy has not been authorized by vote of the people.</p>

<p>1. Motion for New Trial: Affidavits: Review. Affidavits used on the hearing of a motion for a new tria], in order to be considered in this court, must be embodied in a bill of exceptions.</p> <p>3. Value of Goods: Evidence: Witnesses. To lay a foundation for ■ the admission of testimony as to the value of goods in common use it is sufficient to show that the witness, by purchasing and by pricing similar goods, is in a general way familiar with their value. The weight of the opinion then given is for the jury.</p> <p>3. Review: Assignments of Error: Evidence. Where error is assigned to the admission of a large number of written instruments en masse, the assignment is bad unless efil yyere improperly evd]nitte4,</p> <p>4. Instructions: Phraseolo&y: Review. An instruction is not prejudicially erroneous, although awkward in phraseology, and ungrammatical, provided its meaning is clear.</p> <p>5. Chattel Mortgages: Foreclosure Sale. It is the duty of a mortgagee of chattels, in selling under foreclosure, to give a reasonable opportunity to persons desiring to purchase to' see the goods and to offer bids. Failing in this the mortgagor may hold him . accountable for the sacrifice thereby resulting.</p> <p>6. Instructions: Repetitions. It is not error to refuse an instruction the substance of which has been already given.</p>

<p>1. Real Estate Agents: Commissions. Under a real estate broker’s contract to find a purchaser it is not essential to his earning commissions that he literally bring the vendor and vendee together, or that he even inform the vendor of the identity of the proposed purchaser. It is sufficient if by his influence on the mind of the vendee he be the efficient cause of the two assuming- the relations of vendor and vendee.</p> <p>3. -: -: Quantum Meruit. Evidence set forth in the opinion held sufficient to sustain a recovery by a broker on a quantum meruit.</p> <p>3. Exclusion of Testimony: Review: Oeeer oe Trooe. Exceptions to the exclusion of testimony are unavailing- unless there be tender made of the proof which it was sought to elicit.</p>

<p>1. Sufficiency of Petition: When Assailable. The question of the sufficiency of a petition or information to state a cause of action is, when the defect is substantial, open for consideration throughout the proceeding, and may even be raised on a motion for rehearing.</p> <p>2. -: Capacity to Sue: Waiver. Want of legal capacity to sue refers to a general legal disability. If such do not exist, the failure of a plaintiff to show a right of action in himself goes to the sufficiency of the pleading to state a cause of action, and is * not waived by failure to demur for want of capacity.</p> <p>3. Municipal Corporations: Ineligibility oe Mayor: Successor. The provisions of chapter 10, page 54, Session Laws 1897, the so-called charter of cities of the metropolitan class, examined, and held to demand that in case of ineligibility of the person receiving the hig-hest number of votes at the first general election for mayor, the president of the council should exercise the office, and not the former incumbent.</p>

<p>Unlawful Sale of Intoxicating Liquor: Conviction: Review: Evidence. No legal question of any novelty is involved in this case. Evidence lielcL to .sustain a conviction, instructions to be founded on the evidence, and certain evidence to be material and its admission not error.</p>

<p>Error to the district court for 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>Affirmance under rulings in case preceding. (Lockwood, v. Cook, 58 Neb. 302.</p>

<p>1. Quieting Title: Finding Tiiat Mortgage Had Been Paid. Evidence examined, and held to sustain the findings.</p> <p>2. Subrogation? Pleading. The pleadings and issues joined held to be inconsistent with and not to present the question of the right to subrogation.</p>

<p>1. Mortgage Foreclosure: Pleading: Action at Law. Where the answer to a petition to foreclose a real estate mortgage is a general denial, there can be no decree of foreclosure, in the absence of proof that no action at law has been brought for the recovery of the debt.</p> <p>3. —-: ■ — ■—■—: -: Evidence. The introduction as evidence of the note and mortgage alone is insufficient to sustain the allegation of the petition that no action has been brought at law.</p>

<p>1. Guaranty: Statute oe Limitations. The statute of limitations begins to run against a contract of guaranty the same moment an action accrues thereon.</p> <p>2. -: ■-. An action on the contract set out in the opinion, guarantying the payment of a certain promissory note, was barred in ñve years from the maturity of such note.</p>

<p>. 1. Larceny. Definition'. Instructions. While an instruction defining larceny is erroneous which omits to charge that the taking must be with a felonious intent, the instruction need not use the word “felonious,” if words of equivalent import or meaning are employed.</p> <p>2. Instructions. Instructions must be considered together.</p> <p>3. -: Criminal Law: Testimony oe Accused. In a criminal prosecution it is not reversible error for the court to instruct the jury that they have the right to take into consideration the interest of the defendant in the result of the trial in determining the weight to be accorded his testimony.</p> <p>4. -: Requests. A party cannot, ordinarily, be heard to complain that the trial court did not present particular features of a case to the jury, where he has not requested an appropriate instruction upon that subject.-</p>

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

<p>1. Chattel Mortgage: Growing Crops: Sales. One who bargains for the future delivery of a quantity of corn to be taken from the stalk in a designated field is charged with notice of a then existing, and duly recorded, chattel mortgage in which such corn is described as a growing crop.</p> <p>3. -: -: -. When such corn is husked and delivered in execution of tlie contract, the purchaser is presumed to know that it is part of the crop covered by the mortgage.</p> <p>3.-: -: Description oe Property. A description in a chattel mortgage, “50 acres of corn planted on the S. E. % of sec. 17-1-8, being the N. 30 of the S. 80 acres and the south 30 of the N. 80 acres,” accompanied by the further statement that the mortgaged property is in the possession of the mortgag-or in N. county, and that any attempt on his part to remove the property from said county would be a sufficient reason for an immediate foreclosure, is sufficiently definite to impart constructive notice.</p>

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

Error from the district court of Box Butte county. Tried below before Kinicaid, J. Defendant in error, without express authority of statute, cannot maintain in his own name an action for the penalty prescribed by section 361 of the Criminal Code, forbidding the rearrest of a prisoner who had been discharged oh habeas corpus. (Colburn v. Swett, 42 Mass. 232; Omaha é R. V. R. Co. v. Hale, 45 Neb. 418; Si.

The court will apply all payments upon usurious loans as payments on the principal. (Wright v. La/ing, 3 Barn. & C. [Eng.] 165; Rohan v. Hanson, 11 Cush. [Mass.] 44; Keane v. Braden, 12 La. Ann. 20; Storer v. Haskell, 50 Yt. 341; Turner v. Turner, 80 Ya. 379; Nelson v. Hurford, 11 Neb. 465; Know v. Williams, 24 Neb. 630; Exeter Nat. Bank v. Orchard, 39 Neb. 485; Norfolk Nat. Bank v. Sclmenk, 46 Neb. 381; Lanham v. First Nat.

<p>1. Taxation: Enforcement: Construction op Statute. When the law imposing a tax provides a special remedy for enforcing it, the method so provided is generally exclusive, and if the only method adopted be illeg-al, the courts cannot substitute a different and legal method. Following German-American Fire Ins. Co. v. Minden, 51 Neb. 870.</p> <p>2. Municipal Corporation: Occupation Tax: Void Ordinance. A city ordinance imposed an occupation tax and provided only an illegal method for its enforcement. Hell, That the whole ordinance was thereby rendered inoperative. Following German-American Fire Ins. Co. v. Minden, 51 Neb. 870.</p>

<p>1. Usury: National Banks. Tlie exemption of national banks from the penalties of usury prescribed by statute of the state owes its existence to laws enacted by cong-ress, and such exemption should not, by implication, be extended beyond the import of the federal statute.</p> <p>3. -: -: Mortgages. In an action to foreclose a mortgage securing a note made to be used as collateral to a note owing to a national bank the mere fact that the proceeds of such collateral, when collected by the payee thereof, are to be used to discharge the said principal note to the bank do.es not justify the extension of the federal exemption of national banks from penalties for usury to such foreclosure proceedings.</p>

Error from the district court of York county. Tried below before Bates, J. The answer does not sufficiently plead accord and satisfaction as a defense, because it fails to state that the property delivered to plaintiff was of any value, and because it fails to allege that plaintiff received the property in satisfaction of the claim against defendant.

<p>Suit for Goods Sold and Delivered: Verdict for Plaintiff: Evidence. In a suit for groceries sold and delivered to the defendant the plaintiff testified that he furnished the defendant with groceries to the amount of $33.65, and that no part of the same had been paid. Held, The evidence sustains a verdict for the plaintiff.</p>

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

<p>1. Criminal Law: Instructions: Reasonable Doubt. In a felony case it is reversible error for a court to charge the jury that it may find the defendant guilty if it entertain a reasonable doubt of the truth of each or all of the material allegations of the indictment.</p> <p>2. ——-—: -: -. The law is that if the jury entertain a reasonable doubt as to the truth of any material allegation of the indictment, the prisoner is entitled to an acquittal.</p> <p>3. Assault: Justieicakion. When a citizen assaults one of a mob in the wrongful possession of and talcing away his property for the pui’poses of injuring or destroying it, whether under all the circumstances he was justified in making- the assault is a question for the jury.</p> <p>4. Hallowe’en: Protection oe Property eroh Mob: Assault. An assemblage of men on Hallowe’en — night of October 31 — engaged in moving-, injuring-, and destroying property is a mob engaged in violating- the law, and the citizen may use such force as is actually necessary to protect his person and prpperty from injury at its hands.</p>

<p>1. Agency: Knowledge Oe Agent: Praud. The rule whereby an agent’s knowledge is imputed to his principal is subject to an exception in the case of an agent who is engaged in an independent fraudulent scheme without the scope of the ag-ency.</p> <p>2. Sales: Suretyship. Contract set out in the opinion construed as one of sale and not of suretyship.</p> <p>3. Authority of Agent: Question eor Jury. Evidence held to present a case for the jury, on the theory of an agent’s implied or apparent authority.</p>

<p>1. Review. Supplemental Petition: Harmless Error. It is not prejudicial error to deny a plaintiff permission to file a supplemental petition if, in the subsequent course of the proceeding-, he obtains the benefit of all matters therein pleaded.</p> <p>2. Recovery of Property Obtained by Praud: Reimbursement. The rule whereby one seeking- to recover property obtained from him by fraud will not be required to- reimburse the guilty party for moneys expended in pursuit of the fraudulent scheme, and to carry it into effect, will not be extended so - as to relieve the party seeking- to recover from discharging such burdens as would rightfully have devolved upon him if the transaction had been carried out in g-ood faith.</p> <p>3. Mortgages: Bill to Redeem: Trusts: Reimbursement. A made to B a deed absolute in 'form, with the agreement that it should stand as security for advances which B had made to protect the property against liens, and also for future advances. It was also agreed that B might seil or exchange the property and handle it as he saw fit in order to recover Ms money. B exchanged it -for other property. There was evidence, supported by a finding in an interlocutory decree, that B had misrepresented the amount of money he had advanced and had secured a second deed by representing that he had effected an exchange for property which he could dispose of, and that subsequently he paid to A a small sum, saying- it was the surplus proceeds after satisfying- the debt. A, on learning- what exchang-e had been made and that B still held title to the lot for which he had traded, brought a suit to declare a trust therein. Held, (1) That the suit was in effect a bill to redeem, and that A would be required, as a condition of reconveyance, to pay to B the .amounts by B advanced, not only to discharge liens on the first property, •but also all sums in g-ood faith expended in repairs, in caring for it, and in efforts to sell and l-ent; (2) that as B had authority, uninduced by fraud, to exchange, A must also be charged with commissions and expenses, incurred in making the exchange; (3) that he must also be charged with taxes paid on the property for which the exchange was made.</p> <p>4. -: -: Accounting: Reimbursement. On a bill to redeem from a mortgage on vacant land which lias no rental value, the mortgagor cannot, in the accounting, receive credit for either use and occupation, or for interest in lieu thereof.</p> <p>In such a ease the mortgagor will 5, not be credited on the .accounting for a depreciation in value of the mortgaged property during a period when the mortgagee was resisting redemption and claiming absolute ownership.</p>

<p>Original application for mandamus to require respondent to fix the amount of a supersedeas bond.</p>

<p>1. Mortgages: Default: Right to Declare Debt Due. A mortgage, provided that if default was made in the payment of the interest on the debt, the payment of which was secured by the mortgage, the whole of the indebtedness should become due and collectible without notice of condition broken. Held, A contract within the power and right of the parties to enter into, and enforceable according to its terms. (Eastern Banking Co. v. Seeley, 55 Neb. 660 )</p> <p>3. --:--: Pleading: Admissions. Held, That a default in payments was admitted by the answers.</p> <p>3. -Interest: Coupons. An interest coupon which provides for a higher rate of interest from its maturity than is exacted on the . principal sum by the note to which coupon is attached may be legal and may be enforced in strict accord with its terms.</p> <p>4.'-: -: Penalty. A provision in a note and the mortgage by which the payment of the debt evidenced by the note is secured that in the default of the payment of the semi-annual interest installment the whole debt shall bear interest at a higher rate than it would by its terms otherwise bear, is in the nature of a penalty and will not be enforced.</p> <p>5. -: -: Judgments. If parties have agreed -upon a rate of interest less than seven per cent per annum for the forbearance of a debt, a judgment predicated upon the contract will bear interest at seven per cent per annum. (Havemeyer v. Paul, 45 Neb. 373.)</p> <p>6. -: -: -. If parties have contracted for a rate of interest greater than seven per cent per annum, a judgment which has for its basis said contract will b.ear the rate of'interest fixed by the contract. (Havemeyer v. Paul, 45 Neb. 373.)</p>

<p>Death by Wrongful Act: Pecuniary Injury’: Pleading. In an action for damages under the provisions of chapter 21, Compiled Statutes, a petition is fatally defective which discloses no survivor entitled by law to support by the person deceased, and in which, with reference to such survivor as is described, there is no averment of pecuniary injury. Chicago, B. & Q. R. Co. v. Van Buskirk, 58 Neb. 252, approved and followed.</p>

<p>1. Master and- Servant: Action for Personal Injuries: Mistreatment of Servant: Opinion of Third Person: Court’s Examination of Witnesses. Assignment of error of the admission of certain testimony examined, and held "well taken.</p> <p>2. Instructions: Exceptions: Review. There must be an exception to an instruction when given, to obtain a review of the alleged error of such action.</p>

<p>Executions: Appraisement: List op Liens. If in the appraisement of real estate preliminary to a sale thereof under execution or to carry out a decree of foreclosure no incumbrances are deducted, that no certificates of liens were obtained or filed is not a forceful objection for a defendant, the owner of the equity, to confirmation of the sale; but if incumbrances are deducted, certificates of the liens must be obtained and the copy of the appraisement, inclusive of applications for certificates of liens and the certificates, filed with the clerk of the district court prior to the advertisement of notice of the sale.</p>

<p>Executions: Appraisement: List oe Liens. The provisions of section 491cJ of the Code of Civil Procedure, to the effect that a copy of an appraisement of real estate to be sold at judicial sale, inclusive of the applications to certain officers for certificates of liens and such certificates, shall be forthwith deposited in the office of the clerk of the proper court, are mandatory, and unless there is a compliance therewith prior to the advertisement of the notice of sale, any sale made may be vacated.</p>

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

Error from tbe district court of Douglas county. Tried below before Ferguson, J. The district court erred in holding that when a note and mortgage are assigned as collateral security, and upon default the assignee or pledgee forecloses without making his principal debtor a party and bids in the property in his own name, it may be considered by the debtor as an absolute purchase, and he is entitled to have the amount of the bid credited upon his indebtedness.

<p>1. Evidence: Documents: Foundation. -It is error to admit in evidence a book account or a letter until tbe proper foundation therefor bas been laid.</p> <p>3. -: Agency. Ag-ency cannot be established by tbe mere declarations of the alleg-ed agent, and in a proper case it is error not to so instruct tbe jury.</p>

<p>1. Contracts: Agency: Ratification. One will not be permitted to adopt that part of a contract, made by his agent without any antecedent authority, which is beneficial to him and repudiate the remainder. lie must either adopt the whole or none.</p> <p>2. Deeds: Assumption of Mortgage. Where a deed stipulates that the g-rantee assumes and agrees to x>ay a mortgage against the premises, the g-rantee is personally liable to the mortgagee for the amount oi! such mortgage debt.</p>

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

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

<p>Appeal from the district court of Hall county. Heard below before Thompson, J.</p> <p>References: Humev. Peploe, 8 East [Eng.] 168;-Walker v. Barnes, 5 Taunt. [Eng.] 240; City Bank v. Cutter, 3 Pick. [Mass.] 414; McCreary v. Newberry, 25 111. 496; Reuben v. Doted, 46 Fed. Rep. 800; Tompkins v. Batie, 11 Neb. 147; Wells v. Davis, 2 Utab 411; Myers v. Malcom, 20 111. 621; Whatley v. Tricker, 1 Camp. [Eng.] 35; Hanchet v. Birge, 12 Met. [Mass.] 545.</p> <p>References: Harris v. Brooks, .21 Pick. [Mass.] 195; Wolf v. Madden, 47 N. W. Rep. [Ia.] 981; Rowley v. Jewett, . 9 N. W. Rep. [Ia.] 353; While v. Walker, 31 111. 422.</p>

<p>Unauthenticated Bill of Exceptions; Review. A bill of exceptions will be disregarded in the appellate court unless authenticated by the certificate of the clerk of the court below.</p>

<p>1. Appeal: Time to File Transcript: Jurisdiction. This court is without jurisdiction to determine an equity cause on appeal when the transcript is not tiled with the clerk of said court within six months from the entry of the decree or final order soug’ht to be reviewed.</p> <p>2. -: Motion for New 'Trial. A motion for a new trial is not essential to a review of an equity cause.</p> <p>3. -: -: Time to File Transcript. The filing- of a motion for a new trial will not extend the time for prosecuting' an appeal. The time for taking an appeal begins to run from the date of the entry of the decree or final order, and not from the overruling of the motion for a new trial.</p>

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

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

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

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

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

Original application for mandamus to require the state treasurer to issue, without deducting express charges, receipts for the full amount of state funds which relator forwarded by express to the state treasury. References: Stale v. Lincoln Oounty, 18 Neb. 283; Sutherland, Statutory Construction sec. 288; Sniff en v. City of New York, 4 Sand. [N. Y.]193; Mechem, Agency [2d ed.] sec. 653; 1 Am. & Eng. Ency. Law [2d eel.] 1117; 19 Am. & Eng. Ency. Law [1st ed.] 541.

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

<p>1. Action by Administrator to Recover Property Fraudulently Transferred.' An administrator cannot maintain a suit under the provisions of section 211, chapter 23, entitled “Decedents” (Compiled Statutes 1897), unless there are debts of the deceased to be paid and insufficient assets to discharge them, and, ordinarily, the claims must have been allowed or adjudicated against the estate.</p> <p>2. -; Pleading and Proof; Variance, If the pleading is of allowed claims, and tlie proof is of claims presented bnt not adjusted at the time of the institution of the action, there is a variance.</p> <p>3. -: Finding for Plaintiff: Evidence. The finding' and judgment of the district court held not warranted or sustained upon any entertainable theory of the issues presented and evidence adduced in their support.</p>

<p>1. Judicial Sale: Separate Tracts: Review: Presumptions. If in the record presented to this court in an appeal from an order of confirmation of a sale of real estate under decree of foreclosure there is no evidence that the property sold consisted of separate tracts or lots, it will be presumed that the officer who conducted the sale did his duty in a lawful manner and that his offer and sale of it as a whole, or one piece of property was proper.</p> <p>2. -: Appraisement: Review. An appraisement duly made of real estate for the purposes of a judicial sale cannot be successfully attacked solely on the ground that the property has been appraised too low. To make the low valuation a successful ground of attack on the appraisement it must be challeng'ed for fraud. Brown v. Fitzpatrick, 56 Neb. 61, followed.</p>

<p>1. Criminal Law: Intent to Defraud: Information, “It shall be sufficient in any indictment, where it shall be necessary to allege an intent to defraud, to alleg-e that the party accused did the act with intent to defraud, without alleging- an intent to defraud any particular person or body corporate.” (Criminal Code, sec. 417; Roush v. State, 34 Neb. 325; Morearty v. State, 46 Neb. 652.)</p> <p>2. Eorgery: Evidence of Other Acts. In a trial on the charge of uttering forged instruments evidence of similar acts on the same day may be received to show the guilty knowledg’e or the intent of the accused in the act charg-ed.</p> <p>3. -: Information: Copy of Instrument. In an information of the uttering- a forg-ed written or printed instrument there should be set forth a copy or the purport of each material portion of said instrument.</p>

<p>Appeal from tlie district court of Dawes county. Heard below before Westoyer, J.</p> <p>References: Gallaran v. 8haio,ld la. 183; Chicago & 8. F. B. Co. v. St. Glair, 42 N. E. Rep. [Ind.] 225; Link v. Connell, 48 Neb. 574; Waples, Homestead & Exemption 714; Jarboe v. C.olvin, 4 Bush [Ky.] 70.</p>

<p>1. Res Judicata. A judgment rendered by a court having jurisdiction of the parties and of the subject-matter, as between such parties, conclusively settles all questions litigated, unless subsequently reversed or modified in the manner provided by law.</p> <p>2. Modification of Judgments. The jurisdiction of a district court to modify its judgments after the term is limited to the grounds enumerated in section 602 of the Code of Civil Procedure.</p> <p>3. -: Errors oe Law. A district court has no power to vacate or modify its judgment after the term,' On the ground that error of law had been committed by it in rendering such judgment.</p> <p>4. -: Expiration oe Lien. A judgment becomes dormant on which no execution has been issued and levied before the expiration of five years next after its rendition.</p> <p>5. Eminent Domain? Judgment eor Damages: Injunction to Prevent Operation oe Railroad. A railroad company condemned real estate for right of waj, and the landowner appealed from the award to the district court, where judgment was rendered against the company, which it paid in full and the judgment was satisfied. Two years after, and at a subsequent term of the district court, on application of the landowner, the judgment was modified for error of law committed by the court on rendering its original judgment. The railroad company, after condemnation proceedings, took possession of the right of way, constructed its road, and operated the same for several years without objection of the landowner. The modified judgment became dormant, and, without its having been revived, the landowner sought to enjoin the ojjeralion of the railroad until the company should pay said modified judgment. Held, Injunction would not lie.</p>

<p>1. Set-Off: Partnership. A claim against a member of a partnership cannot be set off against a debt due the firm.</p> <p>2. Conflicting Evidence: Review. A finding based on conflicting evidence will not be disturbed on appeal.</p>

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

<p>1. Review: Presumptions. Error must affirmatively appear. It will never be presumed to exist.</p> <p>3. Affidavits: Bill oe Exceptions: Review. Affidavits used on the hearing' of,a motion, to be available in. the appellate court, must • be embodied in tbe bill of exceptions.</p> <p>3. Refusal to Set Aside Default: Review. Tbe overruling of a motion to vacate a decree rendered upon default regularly entered against a defendant will not be disturbed, unless it is made to appear that there has been an abuse of discretion by the court below.</p>

<p>1. Abstract of Record: Review. Where a case is submitted on .an. agreed printed abstract, the court will not look beyond the abstract. O’Neill v. Flood, 58 Neb. 218, followed.</p> <p>2. -: Petition in Bbbor. The printed abstract must include the petition in error, or an abstract of the assignments of error therein contained.</p>

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

<p>1. Insurance: Unoccupied Premises: Forfeiture. A policy of fire insurance providing that it- shall be null “if the building be or become vacant or unoccupied and so remain for ten days,” does not, upon a violation of such condition, become absolutely void unless the insurer chooses to take advantage of the forfeiture.</p> <p>2. -: Waiver of Forfeiture. An insurance company, upon being informed that there has been a breach of a condition in its policy providing for a forfeiture, may decline to take advantage of such forfeiture, and in that event the contract would remain in force.</p> <p>3. -: -. A waiver, to be effective in defeating a forfeiture, . need not rest on either a new agreement or an estoppel; and when once made it is irrevocable.</p> <p>4.-:-: Power of Agent. An agent of a corporation, acting within the scope of his authority, may, by his declaration or conduct, waive his principal’s right to take advantage of a forfeiture.</p> <p>5. -:• -. An inference of waiver may be drawn from any declaration or conduct of the insurer which fairly indicates that it has, with full knowledge of the facts, freely chosen to treat the policy, and deal with it, as a valid and subsisting contract.</p> <p>6.-: Forfeiture. When an insurer has taken advantage of a forfeiture and Las elected to treat the policy as void, the contract is at an end and cannot be revived, except by mutual consent of the contracting parties.</p> <p>7.-: -: Unearned Premium. When an insurer has elected to treat a policy of insurance as void for breach of condition providing for a forfeiture, the assured has no claim upon the . company for any unearned premium.</p> <p>8. Trial: Rejection oe Evidence: Review. It is not error to reject proffered evidence which has no material bearing upon the facts in dispute.</p> <p>9. Evidence: Review. A judgment based upon a verdict which is supported by sufficient competent evidence will not.be disturbed on the ground that the apparent preponderance of the evidence is on the side of the losing party.</p>

<p>I. Pleading: Election Between Defenses:- Time. A motion to compel a defendant to elect upon which of two inconsistent defenses he will proceed to trial comes too late after issue has been joined by filing a reply.</p> <p>2. Accord and Satisfaction: Evidence. Evidence examined, and held to conclusively establish the defense of accord and satisfaction.</p> <p>3. Review: Harmless Error. Where the conclusion reached by the jury was the only one permissible under the pleadings and evidence, the judgment will be affirmed. In such case, errors occurring at the trial could not have been prejudicial.</p>

Heard below before Bates, J. A surrender of notes held as collateral, in exchange for other securities, makes the holder of such new security a holder for value. (Clark v. Iselin, 21 Wall. [U. S.] 360; Sawyer v. Turpin, 91 U. S. 114; Greenioell v. Hayden, 78 Ky. 332; Cherry o. Frost, 7 Lea [Tenn.] 1.) A transfer of collateral security may be made to a third party as trustee by agreement.

Error from the district court of York county. Tried below before Bates, J. The policy was invalidated by the increasing of the mortgage, by the mortgage-foreclosure, and by the procuring of other insurance. '(Billings v. German Ins. Go., 34 Neb. 502; Brunswick Savings Institution v. Commercial Union Ins. Go., 68 Me. 313; Bates v. Equitable Ins. Go., 10 Wall. [II. S.] 33; Foote v. Hartford Fire Ins. Go., 119 Mass. 259; Smith v. Union Ins.

<p>1. Action by Corporation: Corporate Existence: Pleading. In an action by a corporation, if its name imports a corporation, it is not essential to aver in terms its corporate existence or to plead the act of incorporation.</p> <p>2. -: •-: -. A general denial does not place in issue the pleaded existence of a corporation.</p> <p>3. Account: Pleading. Section 129 of the Code of Civil Procedure, wherein it provides that an account may be pleaded by copy thereof, is permissive. The facts may be averred in any proper form.</p> <p>4. Action on Account: Judgment eor'Plaintiee. The judgment held warranted and sustained by the evidence.</p>

<p>1. Time to Assail Petition. That a petition does not state a cause oí action may be raised at any stage of the proceedings, even in this court in an appeal.</p> <p>2. Cancellation of Instruments: Allegations or Fraud. In a petition in the nature oí a creditors’ bill to annul a conveyance or mortgage as fraudulent the facts of the asserted fraud must be specifically stated; general allegations thereof are not sufficient.</p>

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

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

The statute of uses is. applicable. Iver Jensen has, therefore, the legal title to the premises, and the insurance contract is in force. (State Ins.

<p>1. Assault: Intent to Inflict Great Bodily Injury: Information. The effect of section 176 of the Criminal Code, relative to an assault with intent to inflict great bodily injury, was to create a new and substantive crime, — one purely statutory, — and it is sufficient in an information to charg’e the crime in the language of the statute without a statement of the means with which the assault was committed. Smith v. State, 34 Neb. 689; Murphey v. State, 43 Neb. 34.)</p> <p>2. -: -. ■ The term “assault,” used without qualification, has a clear and established import in criminal law.</p> <p>S. -: -: Question for Jury. Whether the particular intent elemental of a charge of assault with intent to inflict great bodily injury has been shown is generally a question-of fact for the jury.</p> <p>4. Instructions: Criminal Law. It is not available matter of complaint for a person, at whose request a jury has been instructed on a specific point, that the court gave an instruction on his own motion on the same subject.</p> <p>5. Assault: Conviction: Evidence. The verdict held not warranted and sustained by the evidence.</p>

<p>l; Review: Conflicting Evidence. A finding will not be disturbed when based upon conflicting evidence.</p> <p>2.-: Directing Verdict, To review the action of the trial court in refusing to direct a verdict for a party the attention of the trial court must have been challenged thereto in the motion for a new trial.</p> <p>3. -: Assignments oe Erbob. An assignment in a motion for a new trial, of “errors of law occurring at the trial, and duly excepted to,” is sufficient to entitle a party to review the rulings of the trial court on the admission of evidence.</p> <p>4. Admission of Evidence: Harmless Error. The admission of immaterial evidence is not ground for reversal where it does not prejudice the party complaining.</p> <p>5. Excessive Damages. Damages awarded by 'the jury held to be excessive.</p>

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

<p>Appeal from the district court of Richardson county. Heard below before Stull, J.</p> <p>References: Craig v. Wells, 1 Kern. [N. Y.] 323; Horn-lech v. Wcstlroolc, 9 Johns. [N. Y.] 73; Pinlcham v. Pinlcham, 55 Neb. 729.</p> <p>References: Hildreth v, Eliot, 25 Mass, 296; Martin v. Coolo, 60 N. W. Rep. [Mich.] 679; Hurd v. Hurd,, 20 N. W. Rep; [la.] 740; Bassett v. Budlong, 43 N. W. Rep. [Mich.] 984; Richardson v. Palmer, 38 N. H. 212; Pool v. Blakie, 53 111. 495; Riggin v. Love, 72 111. 553; Bodine v. Arthur, 14 S. W. Rep. [Ky.] 904; Smith v. Brown, 1 S. W. Rep. [Tex.] 573; Hisley v. Spooner, 23 Neb. 470; Rupert v. Penner, 35 Neb. 588; McCulloch v. Valentine, 24 Neb. 216; Jackson v. Phillips, 57 Neb. 189; Foxcroft v. Mallett, 4 How. [U. S.] 370; Trafton v. Haioes, 102 Mass. 533; Viney v. Abbott, 109 Mass. 300; Walworth v. Abel, 52 Pa. St. 370; Williams v. Sneed, 3 Ooldw. [Team.] 533; Persse v. Persse, 7 01. & Fin. [Eng.] 279; Stewart v. Stewart, 6 01. & Fin. [Eng.] 911; Issitt v. Dewey, 47 Neb. 196; Brittain v. Work, 13 Neb. 347; Wait v. Baldwin, 27 N. W. Rep. [Mich.] 697; State v. Davis, 96 Ind. 539; Singer v. Scheible, 10 N. E. Rep. [Ind.] 616; Spencer v. Robbins, 5 N. E. Rep. [Ind.] 726; Pinkham v. Pinkham, 55 Neb. 729; Hayden v. Hale, 57 Neb. 349.</p>

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

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

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

<p>1. Opening Judgments: Jurisdiction oe Courts. A court of general jurisdiction possesses inherent power to vacate or modify its own judgments at any time during the term at which they are pronounced.</p> <p>2. - — : -. Such power exists entirely independent of any statute. It is derived from the common law, and the provision of the Code of Civil Procedure relating to new trials does not assume to abridge it. Section 314 of said Code does not deal with the power of the court but with the lights of the parties.</p> <p>3. -: Form oe Application. A defendant against whom judgment has been rendered by default may during the term, and after the expiration of three days from the date of the judgment, aslc the court, as a matter of judicial grace and in furtherance of justice, to grant him a new trial; and the court may comply with his request regardless of the form in which it is presented.</p> <p>4. -: -. If the application in such case be in the form of an ordinary motion for a new trial, it will be presumed that the court in sustaining it acted within its authority, and not in violation of law; that it rightfully exerted its inherent jurisdiction, and not that it erroneously assumed to grant the motion as a demandable right.</p>

Error from the district court of Lancaster county. Tried below before Holmes, J. The opinion contains a statement of the case. The act purporting to create the office of state inspector of oils is void, because it is an attempt to create an executive state office in violation of section 26, article 5, of the constitution, forbidding the creation of offices other than those named in the constitution.

Tried below before Powicll, J. There was a fatal variance between allegations of the information and the proof. (Slate v. Wheeler, 19 Minn. 98; Roade v. Stale, 5 Neb. 174; Millsaps v. Stale, 43 S: W. Rep. [Tex.] 1015; Sullivan v. Stale, 7 Bo. Rep. [Miss.] 275; I-Iaslip v: Slate, 10 Neb. 590; Robinson v. Stale, 43 S. W. Rep. [Tex.] 526; Overly v. Slate, 31 S. W. Rep. [Tex.] 377; Speeht v. Beindorf, 56 Neb. 553; Polo Mfg.

<p>1. County Judge: Action on Bond: Conversion. The failure of a county judge to pay to his successor in office or the person entitled thereto money which was deposited with him in condemnation proceedings constitutes a breach of the obligation of his official bond, and there accrues a cause of action in favor of the person damaged by said breach. (Chicago, B. & Q. R. Co. v. Philpott, 56 Neb. 212; Clelland v. McCumber, 15 Colo. 355, 35 Pac. Rep. 700.)</p> <p>3. County Officers: Official Bonds. Bonds of county officers must be in form joint and several. (Compiled Statutes, ch. 10, sec. 3.)</p> <p>3. ■-: -. If the bond is given and approved, the office'obtained and enjoyment of the fees and emoluments, in an action on the bond for damages for a breach of the obligation it will not, in favor of the signers of it, be adjudged void .because joint alone, but will be held good to the extent it in form complies with the statutory requirements in such regard.</p> <p>4. -: -: Conversion. Where an officer holds for two terms and there is monejr which he received during- the first term for which he has not accounted, or has not paid to the person to whom it belongs, and there is a lack of evidence to show the actual date of the misapprojiriation, if any, the presumption will prevail that the money continued in his official custody, until proof is adduced to the contrary.</p> <p>5. -: Principal and Surety: Eelease oe Surety. The neglect of the creditor to xu-’°secute a claim against the estate of a deceased surety does not effect the release of co-sureties.</p> <p>6. Action on Bond of County Judge: Directing Verdict eor Plain-tier. The evidence was sufficient to authorize the peremptory instruction g-iven.</p> <p>7. Striking Out Testimony: Review. Under the conditions and circumstances existing the ruling of the trial court on a motion to strike out certain designated testimony was a discretionary one, and there being no abuse of the discretion, the error, if any, . is unavailable.</p> <p>8. Exclusion of Testimony. Exclusion of offered testimony examined, and held not erroneous.</p>

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

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

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

<p>1, Contract: Construction. The contract set out in the opinion construed; and held to bind the parties thereto to account to each other Xor the net profits derived from the purchase and sale oX lands under the contract, although such real estate was not specially described therein.</p> <p>2.-: Consideration. One consideration is sufficient to support all the stipulations of a contract, where such was the intention of the parties.</p>

<p>Time to Prosecute Error. A proceeding' in error in tlie supreme court must be commenced within one year from the overruling of the motion for a new trial, to confer jurisdiction to review the case.</p>

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

<p>Sales: Commercial Agencies: False Statement oe Seller: Rescission. A sale of goods made-on the faith of the entire report of a commercial ag-ency as to the financial standing of the proposed buyer, and not particularly in reliance of a statement made by him to the ag-ency, cannot be rescinded because srich statement was false and untrue. Poska v. Stearns, 56 Neb. 541, followed.</p>

<p>1. Payment of Costs: Waiver oe Right to Appeal. The mere payment of the costs by an unsuccessful litig-ant is not a waiver of the right to appeal or prosecute error from the judgment rendered on the merits.</p> <p>2. Office and Officers: Oeeicial Bonds: Approval. Under section 17, chapter 10, Compiled Statutes, the incumbent of a public office having public funds or property in his control, who is re-elected, shall not have his bond approved until he has x>roduced and fully accounted for such funds and property.</p> <p>3. -: -: -. The provisions of said section 17 are mandatory, and are applicable to any person elected to the office of county treasurer as his own successor who has failed to account for or produce to the proper accounting officers all the public funds or property of which he had control.</p> <p>4. Mandamus: Judgment on Pleadings. It is reversible error to grant a peremptory writ of mandamus upon the pleadings alone, and without the production of evidence, where a material averment in the application or petition for the writ is put in issue by the answer.</p> <p>5. Pleading: Conclusions oe Law. Mere conclusions of law in a pleading will be disregarded.</p> <p>6. Mandamus: Approval oe Oeeicial Bond. Mandamus will not lie to compel the approval of an official bond when the application for the writ fails to show that the bond tendered was executed by sufficient competent sureties.</p>

<p>1. District Courts: Special Sessions. By section 25, chapter 19, Compiled Statutes 1897, a judge of the district court is authorized to appoint and hold a special term in any county in his district for the transaction of any business that may properly come before such court.</p> <p>2. Assignments of Error: Continuance: Record for Review. An8 assignment of error that the court erred in denying-a motion for! a continuance is without merit where the record does not dis-| close that the motion was ever xn-esented to the court for de-| cisión, or that there was any action or refusal to act thereon.</p> <p>3. Motion for New Trial: Laches. It is not error for the court to| strike from the files a motion for a new trial filed after the time| limited by the statute for -that purpose.</p>

<p>1. Judicial Sale: Refusal to Vacate: Appraisement: Review. An order denying a motion to vacate a .-judicial sale on the ground that the appraisement was too low will not be set aside when based on substantially conflicting evidence.</p> <p>2. -: Appraisement. An appraisement of real estate for the purposes of a. judicial sale cannot be successfully assailed on the ground that the appraisers were mistaken in their valuation of the property.</p> <p>3. District Courts: Special Terms. By section 25, chapter 19, Compiled Statutes 1897, a judge of the district court is authorized to appoint and hold a special term of court in any county of Ms district for the transaction of any judicial business that may properly come before Mm.</p>

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

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

<p>Adpeal from the district court of Saunders county. Heard below before Sedgwick, J.</p>

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

<p>1. Trade Name. A right to the exclusive use in a particular locality of a trade name or sign may be acquired.</p> <p>2. --: Inetunoement. A sign or trade name is not an infringement of another, if ordinary attention of persons or customers • would disclose the differences.</p>

<p>1. Erroneous Exclusion of Evidence: Action on Note: Signature of Defendant. An assignment of error in relation to exclusion of evidence examined, and held well taken.</p> <p>2. --: -: -. Each party testified of one, and only one, conversation in regard to the matter at issue, — the execution of a promissory note. They differed as to the time and place of - the conversation. -The one gave testimony of admissions made by the other; the latter offered to show what he said at the time and place when and where he claimed to have tallied with the former of and concerning the issuable matter. This was excluded. Held, Error.</p>

<p>Deed as Mortgage. The evidence held sufficient to sustain the findings and decree ol the district court.</p>

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

<p>1. Pleadings: Copies oe Instruments. To “set out” means to recite .or state in full.</p> <p>2. Ruling on Motion: Review. It is not error to deny a motion which, is for relief to which the mover is not entitled, as a matter of right, substantially as moved.</p> <p>3. Pleading: Copt op Instruments: Practice. By motion is the proper method to secure the attachment to a petition of a copy of the instrument on which the suit is based.</p> <p>4. -: —:-: Demurrer. That a copy of the instrument, the foundation of the action, is not attached to the petition does not render the pleading open to successful attack by general demurrer, or, on appeal, to the objection that it is insufficient to support a decree, if the statement of facts discloses a cause of action.</p> <p>5.-: -. The former opinion, in its general conclusion, the result of which was a reversal of the decree, overruled.</p>

<p>1. Corporations: Stock: Assessments. In the absence oC statutory authority or power given by the articles of incorporation there can be no assessment against or on “paid-up” stock of a corporation.</p> <p>2. -: -:--. The fully paid-up stock of a corporation is the personal property of the owner, and the articles of incorporation and laws of the state are elemental of the contract existing between the corporation and the owner of stock, and may not be so amended by legislative enactment as to make the-paid-up stock subject to an assessment or general or specific assessments, and forfeitable, or subject to summary sale by the corporation, for the non-payment of such assessment.</p>

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

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

<p>1. Tax Sale: Irregularities: Lien oe Purchaser. Mere irregularities in. conducting' a sale of real estate for delinquent taxes legally assessed will not defeat the lien of the purchaser at such sale.</p> <p>3. -: Tender to Purchaser. A tender to a tax purchaser of a less sum than is due will not discharge his lien.</p>

<p>1. Instructions: Issues. Instructions should be confined to the issues in the case.</p> <p>2. -: Conflicting Statements. An erroneous instruction is not cured by merely giving another on the same subject stating the rule correctly.</p>

<p>1. Conflicting Evidence: Review. Conflicting- evidence will not be weighed on review in error proceeding.</p> <p>2. Review: Rultngs on Evidence: Objections. An objection to the admissibility of testimony cannot be raised lor the first time in this court.</p> <p>3. Affidavits: Bill oe Exceptions. Affidavits used on the hearing of a motion for a new trial, to be considered in the supreme court, must be embodied in a bill of exceptions.</p>

<p>1. Judicial Sales: Appraisement: Objections. Objections to the appraisement of properly for the purpose of judicial sale must be made in the district court prior to the sale.</p> <p>2. -: Deputy Siieriee. A deputy sheriff may perform any act for his principal in making a foreclosure sale.</p> <p>3. -: Appraisement. But one appraisement of real estate is required to be made until the property has been twice advertised and twice offered for sale.</p>

<p>Appeal from the district court of Lancaster county. Heard below before Cornisii, J.</p> <p>References as to appointment of receiver where mortgaged premises are occupied as .a homestead: Lowell v. Doe, 44 Minn. 144; Bromley v. McCall, 18 S. W. Rep. [Ky.] 1016; Callanan v. Shaw, 19 la. 183; Cone v. Combs, 18 Fed. Rep. 576; Hoge v. Hollister, 8 Baxt. [Tenn.] 533; Harris v. United Savings Fund & Investment Go.,' 146 Ind. 265; Schreiber v. Cary, 48 Wis. 208; Marshall-Illsley Banlc v. Cady, 77 N. W. Rep. [Minn.] 831.</p> <p>The law authorizing appointment of a receiver in mortgage-foreclosure does not apply to a case where the premises are occupied as a homestead. (Chadron Loan & Building Ass’n v. Smith, 58 Neb. 469.) •</p>

<p>1. Conflicting Evidence: Review. Where the evidence is conflicting, it is not the province oí this court to examine it further than to see that there is sufficient to justify the conclusion reached.</p> <p>2. Instructions: Review. Where instructions correctly st.atc the • propositions they assume to cover and fairly submit to the jury the only controverted question in the case, the verdict will not be disturbed.</p>

<p>1. Ruling on Motion: Review. It is not error to deny a motion ■which cannot be allowed substantially in the form in which it is presented.</p> <p>2. Review: Reversal: Prejudicial Error. To warrant the reversal of a judgment it must affirmatively appear from the record that the ruling with respect to which -error is alleged was prejudicial to the rights of the party complaining.</p>

<p>Mortgage-Foreclosure: Appraisement: Sale. It is too late, after a sale of real estate under a decree of foreclosure, to question tlie correctness of tlie appraisement- except for fraud.</p>

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

<p>t. Leeds: Rights of Third Persons. An instrument transferring property, even though recorded, cannot be given effect to the prejudice of third parties who acquired rights in the property before the actual delivery of the conveyance.</p> <p>2. Lien of Attachment. An order of attachment becomes a lien on the property attached only to the extent of the defendant’s actual interest therein.</p> <p>3. ^Fraudulent Conveyance. Evidence examined, and held to sustain the finding of the trial court.</p>

<p>1. New Trial: Ruling on Motion: Record eok Review. Alleged errors occurring at the trial of a law action cannot be reviewed, unless there is in the record authentic evidence that a motion for a new trial was overruled by the district court.</p> <p>2. Carriers: Injury to Passengers: Pleading. In an action to recover for injuries sustained by a person in consequence of the derailment of a railroad train upon which he was being transported as a passenger it is not indispensable that the petition should allege that the injury was the result of the wrongful act or omission of the carrier.</p> <p>3. -: -:---: Presumptions. The presumption in such ease is that the accident was caused by the, carrier’s negligence, and it is unnecessary to plead what the law presumes.</p> <p>4. ■ — -:----: Liability oe Railroad Companies: Police Power. The act of June 22, 1807 (Session Laws, p. 8S), making railroad companies liable, in the absence of negligence, for injuries to passengers on their trains, is justifiable legislation under the police power of the state. It aims to promote safety in travel, and neither deprives such companies of their property without due process of law, nor denies them the equal protection of the laws.</p> <p>5. Death by Wrongful Act: Action by Legal Representative. Under chapter 21, Compiled Statutes 1S97, known as “Lord Campbell’s Act,’’ the legal representative of a person who has died in consequence of an injury sustained through the wrongful act, neglect, or default of another, has a right of action in all cases where the injured party might have maintained an action had he survived the injury.</p> <p>6. --;--; Pleading; Peounjap.y Interest oy Plaintiej?. Such action is for the benefit of the widow and next of kin of the deceased, and the recovery authorized is compensation lor the pecuniary loss suffered. If the facts alleged in the petition do not show that the persons, for whose benefit the suit was instituted, had a pecuniary interest in the life of the deceased, the pleading is defective in substance.</p>

Heard below before Holmes, J. The opinion contains a statement of the case. Held: and have lost by their fraud all right to claim under those original securities as against appellánts. (Pcrean v. Frederick, 17 Neb.' 117; Merriam v. Calhoun, 15 Neb. 569; Home Fire Ins.

<p>Life Insurance: Wife’s Pledge of Policies: Release. Policies of insurance on the life of her husband were pledged by the beneficiary, the wife, as security for the payment of the debt of the husband: The evidence held sufficient to support a finding that the contract of pledge was inclusive of extensions of times of payments, and that such extensions were made did not discharge or release the pledgee.</p>

<p>I. Tax Lien: Poreolosure by Purchaser: Notice to Occupant. It is not essential to a foreclosure of a tax lien by a purchaser at a void tax sale that the notice provided for in the revenue law (Compiled Statutes, eh. 77, art. 1, secs. 323, 179) be served on the owner or occupant of the real estate to be affected.</p> <p>2. Taxation: Lien of County: Poreolosure. The lien of a county for taxes assessed against real estate may be enforced by it in an action of foreclosure after the taxes have become delinquent and subsequent to the time of the liability of the property to sale because of the non-payment of the taxes. Grant v. Bartholomew, 57 Neb. 673, followed.</p> <p>3. Void Tax Sale: Lien oe Purchaser. A tax sale, although void, assigns and transfers the lien of the, public or county to the purchaser, also the rights and remedies, inclusive of the rights of action of foreclosure of the lien. Grant v. Bartholomew, 57 Neb. 673, followed.</p> <p>4. —r-: -: Interest. The purchaser at a void tax sale is entitled to the same rate of interest on the taxes paid by him as they drew when he made the payments. Grant v. Bartholomew, 57 Neb. 673, followed.</p>

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

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

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

Tried below before Letton, J. One of the jurors stated on the voir dire that he had an opinion as to the guilt or innocence of accused, based on newspaper reports and on conversations, and that it w.ould require evidence to change the opinion. The juror should have been excused upon accused’s challenge for cause.

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

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

Error from the district court of Lancaster county. Tried below before Holmes, J. The conid should declare the bonds invalid on the ground that the notice of the election at which they were voted was insufficient. (Lawson v. Gibson, 18 Neb. 137; State v. Cornell, 54 Neb. 647; Early v. Doe, 16 ITow. [U. S.] 609; Whitaker v. Beach, 12 Kan. 492; McCurdy v. Baker, 11 Kan. Ill; Know County v. Ninth Nat.

<p>1. Statutes: Adoption: Repeal. Where one statute refers to another, which is subsequently repealed, the statute repealed becomes a part of the one mailing- the reference and remains in force so far as the adopting' statute is concerned.</p> <p>2. Replevin Bond: Justification: Statutes: Construction. The provisions of section 189 of the Code of Civil Procedure, which provide that when an .officer is notified by a defendant in replevin that he excepts to the sureties on a replevin bond the sureties must justify “upon notice as bail on arrest,” was not rendered inoperative by the repeal of title 8, chapter 1," Code of Civil Procedure.</p> <p>3. ■ — -: Action Against Approving Officer: ' Defense. In an action ag'ainst an officer lor approving an insufficient replevin bond, the fact that the plaintiff afterward seized the property on execution is a defense pro tanto,</p> <p>4. -; -: Parties. When property was replevied from a sheriff who held under a writ of attachment, the sheriff, in his own name or by joining- with the attachment creditors, may maintain an action against the replevying- officer for negligently approving- the replevin bond.</p> <p>5. Evidence: Documents. It is not reversible error to exclude documentary evidence when the same has already been introduced by the other party.</p> <p>6. Instructions: Issues. It is error to give an instruction which withdraws from the consideration of the jury a material issue of fact in the cause.</p>

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

<p>1. Statutes: Repeal. Repeals of statutes by implication are not favored.</p> <p>2. -: General Provisions: Construction. Tt is a cardinal rule of construction that an act whose provisions are general will not, unless unavoidable, be so interpreted as to affect more particular and positive provisions of a prior act on the same subject.</p> <p>3. -; Construction: Payment oe Judgments Agatnst Municipalities. The act of 3867, known as article 6, chapter 77, Compiled Statutes, is not repealed by section G9, article 1, chapter 14, Compiled Statutes.</p> <p>4'. -: -: -. Statutes in pari materia, should be construed together, and, if iiossible, effect be given to all of their provisions.</p> <p>5. -: -. — -. By the provisions of article 6, chapter 77, Compiled Statutes, power is conferred to levy taxes upon the taxable property oi a city, village, or school district to pay a judgment rendered against the corporation.</p> <p>6. Taxation: Payment oe Judgment Against City. A tax can be lawfully levied to pay a judgment against a city having less than 5,000 inhabitants, or a village, even though the maximum amount of taxes authorized by statute to be assessed for general corporate purposes has been imposed.</p> <p>7.---: Limit for School Purposes. Section 11, subdivision 2, chapter ?'9, Compiled Statutes, limits the amount of taxes which may be imposed by a school district to twenty-five mills on the dollar of assessed valuation for all purposes, except the payment of bonds issued by the district and the purchase and. lease oí a sclioolhonsc.</p> <p>S.----: School Districts: Payment of Judgment. A tax to pay a judgment aguinst a school district cannot be -levied and collected where the maximum amount of taxes authorized by statute for all purposes has already been levied.</p>

Tried below before Slabatjg-h, J. See opinion for statement of the case. The nineteenth instruction, relating to malice and to the different degrees of murder, was erroneous. (Vollmer v. State, 24 Neb. 838; Erwin v. State, 29 O. St. 186; People v. Ereel, 48 Cal. 436; Morgan v. Slate, 16 Tex.

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

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

<p>1. Quieting Title: Pleading. In an action to quiet title to real estate the plaintiff: may allege in his petition as jnany claims of ownership as he may have.</p> <p>2..-: Color of Title: Soldier’s Additional Homestead. A person who has purchased a soldier’s “additional homestead right” and has, under proper powers of attorney, located the same and entered into possession of the land ujion which 'the location was made, has color of title to the entire tract described in the receiver’s receipt.</p> <p>3. Ruling on Motion. It is not error to deny a motion which cannot be allowed in toto.</p> <p>4. New Trial: Affidavit: Newly-Discovered Evidence. . A motion for a new trial on the ground of newly-discovered evidence should ordinarily be supported by the affidavit of the party making the application, as well as by the affidavit of his attorney.</p> <p>5. -:--: -. The affidavit of the new witness should also be produced or its absence satisfactorily accounted for.</p> <p>6. Impeaching Evidence: Foundation. It is not error to reject impeaching' evidence, where no proper foundation has been laid therefor.</p> <p>7. Possession of Land. Possession of land is notice to the world of the possessor’s rights therein.</p> <p>S. Quieting Title: Decree for Plaintiff. Evidence examined, and held to sustain the finding- and judgment.</p>

Error from the district court of Douglas county. Tried below before Scott, J. Where the terms of a life insurance policy will bear two interpretations, that one will be adopted avMc.1i sustains the claim for indemnity. (Goodwin v. Provident Sewings cG Life Ass’n, 66 N. AY.

<p>1. Instructions: Objections: Review. Objections to instructions not brought to the attention of the district court by a motion for a new trial cannot be successfully urged in this court.</p> <p>2. Criminal Law: Confessions: Corroboration. One cannot be convicted of a felony upon his own unsupported extra-judicial confession that a crime has been committed. Such confession may be sufficient to prove the defendant’s connection with the criminal act, but there must in all cases be proof aliunde of the essential facts constituting the crime.</p> <p>3. -: -: -. But, while a voluntary confession is insufficient, standing- alone, to prove that a crime has been committed, it is competent evidence of that fact, and may, with slight corroborative circumstances, be sufficient to warrant a conviction.</p> <p>4. -: -: Circumstantial Evidence. Circumstances .. capable of an innocent construction may be interpreted in the light of the defendant’s confession, and the fact under investigation be thus given a criminal aspect.</p> <p>5. -: Declarations. A declaration may be a part of the res gesta; without being- precisely coincident with the main transaction. It is sufficient that there was between tlie two an immediate casual relation, and that the statement was a spontaneous characterization of the act.</p> <p>6. -: -: Res Gestíe: Hoiiicide. The accused procured a revolver in a saloon, went about fiity feet, fired a shot and killed a man, ran back to the saloon, threw the revolver on the floor, and exclaimed, “My God! I have killed Tom Kirkland, my best friend,” then hurried back to the dying- man, raised his head, and ag-ain declared that he had shot his best friend, and that he would be hanged. Held, That such declarations constituted pai-ts of the res gestw, and were legitimate, independent evidence of the homicidal act.</p>

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

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

Heard below before Powell, J. The facts are stated in the opinion. In absence of a statutory requirement, appellee was not entitled to notice, either personal or by publication, of the passage of resolutions requiring the construction of a sidewalk in front of his premises. (State v. Commissioners, 29 Atl. Rep. [N. J.] 429; Morris v. Comptroller, 54 N. J. Law 268; Oil City v. Lay, 164 Pa.

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

<p>1. Insolvent State Banks: Duties or Receivers. A receiver of a state bank appointed in proceeding's under the provisions of section 34, chapter 8, Compiled Statutes, takes possession anil holds the assets of a bank in favor of, and to assert and guard the claims of, the depositors and other creditors as the paramount and suj)erior claims against the assets.</p> <p>2. --: Preferred Claims. In the adjustment and settlement of claims, those of depositors and oilier general creditors who trusted the bank in the course and transaction of its legitimate business may bo preferred over claims which origina led .in the pursuit and conduct of a business by the bank in which it had no legal authority or power to engage.</p>

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

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

<p>1. Claim Against County: Appeal by Taxpayer. A taxpayer may appeal from the allowance by a county board of a claim against a county. (Compiled Statutes, art. 1, ch. 18, see. 38.)</p> <p>2. -: -. Such appeal is not entirely a personal and private matter of the appellant, but is of public interest and concern.</p> <p>3. -: -: Parties. The county is a party to the suit in the appellate court, but may not by any action therein rob the appeal of its significance or hinder or prevent the hearing- of the appeal.</p> <p>4. -:--: Dismissal. A court, in the exercise of the power it possesses over its process and proceedings, may dismiss an appeal from the allowance by a county board of a claim ag-ainst the county, if it be shown that the appeal was not taken in g-ood faith, but to make its dismissal the subject of sale to the claimant.</p> <p>5. -:--: -. The attack upon the appeal may be by motion to dismiss.</p> <p>6. Motion to Dismiss Appeal:' Misconduct oe Appellant: Laches. The motion to dismiss an appeal, if based on occurrences subsequent thereto or on the ground that the process and proceeding's of the court are being' used to further corrupt practices or purposes, should be presented as soon as may be after the facts have become known to the mover, but will be entertained at- any time during' the proceedings before trial on the merits, and after, if the reasons for the motion were not discovered before; and any delay in the presentment of the motion before trial will not constitute its waiver, unless it appears that the delay was purposely or without excuse.</p> <p>7. Trial Without Jury: Evidence: Review. In a hearing' to the court without a jury it will be presumed that none but competent and proper evidence was considered, and the reception of incompetent or improper evidence will not suffice to reverse a judgment based upon findings sustained by the evidence with the objectionable matter eliminated.</p> <p>8. Appeal Erom County Board: Dismissal. The findings herein upon which the order of dismissal of the appeal was predicated were sustained by the evidence.</p> <p>9. Harmless Error.. Errors of the district court which were without prejudice to the rights of a plaintiff in an error proceeding to this court are of no avail.</p>

<p>1. Lien of Special Taxes: Foreclosure: Burden op Proop. The party who asserts and seeks the foreclosure or enforcement of the lien of special assessments or taxes has the burden of the proof or establishment of their validity.</p> <p>2. Municipal Corporations: Paving Taxes. Joining in a petition for the paving of a street is not a waiver of the compliance with statutory prescriptions relative to the mode of assessments and levies of taxes to pay for the work.</p> <p>3. -: Equalization: Construction op Statute. Statutes in regard to powers and duties of boards of equalization are to be sirictly construed, and in the exercise of their powers and duties the mode of procedure prescribed must be followed.</p> <p>4. --: Special Taxes: Void Levy: Evidence. Held, That there was a failure of proof to show a compliance with stated statutory pre-requisites to the assessments and levies of certain special taxes involved herein.</p>