Volume 61 — Nebraska Reports

<p>Printed Abstract. "Where a cause is submitted in this court under section 1 of rule 3, and the printed abstract contains no specification of the errors relied on for a reversal, no question is presented for decision, and the judgment will be affirmed.</p>

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

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

<p>1. Constructive. Service: Opening Decree: Tender oe Answer. To entitle a defendant to llave a decree entered on constructive service opened up under section 82 of the Code of Civil Procedure he, must present a full answer to the merits of plaintiff's cause of action.</p> <p>2. Answer: Denial: Information and Belief: Matter of Record. An answer is. sufficient which denies, on information and belief, material allegations of the petition which are matters of public record.</p> <p>3. -r—: Inconsistent Defense. One will not be allowed to plead inconsistent defenses in'an answer.</p> <p>4. Opening Decree: Benefit to Moving Party. A decree will not be opened up where the moving party could not be benefited thereby.</p>

<p>1. Compensation of Constitutional Officer. The compensation or salary of an officer created by tlie constitution cau not be increased or diminished during- his official term.</p> <p>2. Police Judge Constitutional- Officer. The office of police judge or police magistrate of an incorporated city is called into existence by the constitution.</p> <p>3. Holding Over: Part oe Term. Holding over beyond the fixed term of an officer pending- the election of a successor in pursuance of the requirements of the constitution is as much a part of the term of office as that which precedes it.</p> <p>4. -; Increase or Diminution oe Salary. Where a person lawfully continues in an office created by the constitution, by virtue of his original election and qualification, after the expiration of the fixed term, but before liis successor is elected and qualified, the salary, of such officer holding- over, can not be increased or diminished.</p>

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

<p>3. Abstract of Record: Contents. An ag-reed printed abstract must include 1lie petition in error, or an abstract of the assignments of error.</p> <p>2.--: —-: Court Wilt, Not Look Beyond Abstract. Where a ease is submitted on an agreed printed abstract, the court will not look beyond the abstract.</p>

<p>1. Directing Verdict: Sidteicttcncy oe Evidence. It is not error to direct a verdict for plaintiff in a case where a verdict in favor of the defendant could not, for want of sufficient evidence, be permitted to stand.</p> <p>2. Sale of Mortgaged Property: Election oe Remedies. Where mortgaged property has been sold by the mortgagor without the knowledge or consent of the mortgagee, such mortgagee may either disavow the sale and retake the property, or ratify it and recover the proceeds of the sale.</p>

<p>Appeal from tlie district court for Hall comity. Tried below before Thompson, J.</p>

Original proceeding in injunction. Application for an order requiring the defendant to allow the attorney general to inspect and copy its boolcs and records to obtain evidence to maintain the allegations of the petition herein. This action is civil and not criminal in its nature. Mitchell v. State, 12 Nebr., 538. If the court should reacli the conclusion that this is a criminal action, it would have the effect of practically annulling the law.

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

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

Error, from the district court for Otoe county. Tried below before Ramsey, J. The true rule of damages in a case of this kind is that, when the property destroyed or injured is so closely connected with the real estate on which it stands or to which it is attached that it has no value separate and independent of the real estate, the measure of damages is the difference in value between the real estate before the injury and after it.

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

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

<p>1. License to Practice: Act of 1895: - Power of Súfreme Court: District Courts. Since the passage of the act of 1895 (ch. 6) the power to license to practice in the courts of Nebraska has ’ been taken from the district courts and lodg'ed exclusively in the supreme court.</p> <p>2. Admission to Practice: Citizenship. No one but a citizen of the United States and a resident of the state of Nebraska can be admitted to practice generally in the courts of said state.</p> <p>3. Foreign Attorneys: State • Comity: Discretion of Courts. A practicing attorney, in good standing- in the courts of record of a sister state, a territory or a foreign country, having an interest in a cause pending in any of the courts of this state, may, in the discretion of such courts, and as a matter of courtesy, he permitted -to appear in said court for some of the purposes of such cause.</p> <p>4. Application for Admission: Statute: Minors. To entitle a person to apply for admission to the bar of this court under, the provisions of section 2, chapter 7, of the Compiled Statutes, he must, at the time of making his application, have attained to the age of twenty-one years.</p> <p>5. Statute: Admission: Qualifications: Two Years’ Study: Graduation: Foreign College. Under the provisions of said section 2,'attentive study of the law in the office of a practicing attorney for the full period of two years, or regular graduation from the College of Law of the University of Nebraska, is absolutely required; and study in any other law school, or otherwise than in such office, will not be considered.</p> <p>6. Practicing Attorney: Meaning of Term. The “practicing attorney,” in whose office the statute requires the studies of the • applicant to be duly pursued, is one who resides and practices in this state.</p>

<p>1. Statute of Limitations: Plea by Third Party. Ordinarily, a third party may not interpose the defense of the statute of limitations.</p> <p>2. Homestead: Pratjdtjlent Alienation. The family homestead to the value of $2,000 is not the subject of fraudulent alienation.</p> <p>3. Office of Keply. The office of a reply is to deny the facts alleged in the answer as a defense, or to allege matters in avoidance of such defense not inconsistent with the cause of action set out in the petition.</p> <p>4. -: New Cause oe Action. A new cause of action may not he set forth in a reply.</p>

<p>1. Decree of Foreclosure: Sale oe Mortgaged Property: Pinal Order. A decree foreclosing a real estate mortgage, with the usual provision for a sale of the mortgaged property, is a final order or judgment within the meaning of the Code.</p> <p>3. Vacation of Decree: Power oe District Court: Statute. A district court is without power to vacate a decree entered by it at a prior term foreclosing a mortg-ag'e, except for the causes and in the manner prescribed by statute.</p> <p>3. Motion for New Trial: Limitation: Except on the ground of newly-discovered evidence, a motion fpr a Dew trial must be filed within three days after the judgment is rendered.</p>

<p>1. Finding: Evidence. A finding made on evidence fairly'conflicting will not be disturbed on review.</p> <p>Reversal: Prejudicial, Error. Prejudicial error must be shown, to justify the reversal of a decision of the trial court.</p>

<p>1. Amendment of Court Records: Evidence. A court has the power ■at a subsequent term to amend or correct its records to conform to the facts, and may proceed upon any satisfactory evidence.</p> <p>2.-: Subsequent Term: Recollection oe Judge: Quiere. Whether a correction of the record may be made at a subsequent term from the personal recollection alone of the trial . judge not decided.</p> <p>3. Pinding: Evidence. A finding without any evidence to sustain it will be set aside.</p>

<p>1. Tax Levy: Situs. A village can not levy a tax on property the situs of which is not within the corporate limits. Chicago, It. & Q. 11. Co. v. Cass County, 51 Nebr., 369, and Chicago, B. & Q. R. Co. v. City of Nebraska City, 53 Nebr., 453, followed.</p> <p>3. -: -Jurisdiction: Ataltd erom Invalid Tax. A tax levied on a whole property, part of which is within and part without the territorial limits of the body imposing' the same, is invalid as to that part levied on the portion without the jurisdiction, which renders the whole assessment void, unless the tax assessed against the part within the jurisdiction of the taxing body can readily be separated from the portion without it.</p> <p>3. Assessment: Situs or Property: Jurisdiction. A property owner is not required to appear before a taxing' board in opposition to the assessment of a tax on property whose situs is not within the jurisdiction of snch board.</p> <p>4. Void Assessment: Tender. Where an assessment is wholly void, no tender of any sum. is necessary to relief against the tax.</p>

<p>Garnishment: Residence oe Creditor. It is the settled doctrine of this court that one can he garnished only in the state where the debt- is payable, if that be the place of residence of his creditor.</p>

<p>1. Judicial Sale: Confirmation: Briefs: Assignment: Waiver. Objections' to the confirmation of a judicial sale, not argued in the briefs, are waived.</p> <p>2. Motive of Party to Suit: Legal Rigiits: Inquiry. The motive which induces a party to defend a suit brought against him will not be inquired into, but rather his legal rights in the premises.</p> <p>?. Error: Reversal. To obtain a reversal of an order of the trial court, prejudicial error must be shown.</p>

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

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

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

<p>1. Recitation of Facts: Coneirmation: Expiration oe Stay: Rending Appeal. A decree of foreclosure directed a sale of the mortgaged property, and also found the defendant personally liable for a possible deficiency. The defendant asked and obtained a stay of the order of sale and prosecuted an appeal to this court, giving a supersedeas bond conditioned as required in cases where the judgment directs the payment of money. Held, That it was not error to confirm a sale of the property made under the decree of foreclosure after the expiration of the stay, but during the pendency of the appeal.</p> <p>2. Judicial Sale: Appraisement: Motion to Vacate: Absence oe Bill oe Exceptions. An order denying a motion to vacate an appraisement of property for judicial sale on the ground that the appraiser’s valuation was too low will, in'the absence of a bill of exceptions embodying the evidence given at the hearing, be presumed to be correct.</p>

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

Emton from the district court for Lancaster county. Tried below before I-Iolmes, J. ¡Sections 70 and 77 of the act of 1887 violate section 7, article 9, of the constitution. Ríale v. Wheeler, 33 Nebr., 503. The right granted by the city to the railway company to use the streets was a contract. The act of 1887 inipan ed the obligation of such contract, and is inimical to the federal constitution. Chicago v.SheldonM Wall. [U.B.], 50; Coast L. R. Co. v. Mayor, 30 Fed.

<p>1. Real Estate: Action cor Value: Title: Contract. Id the absence of an express or implied contract one can not maintain an action to recover the value of real estate while the legal title thereto is in the defendant.</p> <p>2. Public Street: Private Land: Condemnation: Recovery oe Value: Investment oe Title. Where the city appropriates for a street the lands of an individual, who subsequently sues the municipality and recovers their value, such judgment has the effect to invest the city with title to the lands.</p> <p>3. Statute of Limitations. The statute of limitations does not begin to run until the cause of action has accrued.</p> <p>4. Election of Remedies. The principle of election of remedies can be applied only where there are two or more co-existing remedies, and these must be so inconsistent that a party can not logically choose one without renouncing all others. State v. Bank of Commerce of Grand Island, 61 Nebr., 22. .</p> <p>5. --•: Estoppel. If the law affords but a single remedy, a party is not precluded from resorting’ thereto merely because he sought to avail himself of another remedy to which he was not entitled. Supra.</p>

<p>Appeal from the district court for Franklin county. Heard below before Beall, j.</p>

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

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

<p>1. Preferred Creditor: Money Due on Collection Account. Money collected by a bank Eor another on notes or drafts and retained is held in trust for the owner, and does not become a part of the assets of the bank, and if the bank thereafter becomes insolvent, and a receiver is appointed, the one for whom the collection is made is a preferred creditor-.</p> <p>2. Trust Funds: Conversion: Proceeds: Rights oe Beneficiary: Innocent Holder. Where trust funds are wrongfully converted the beneficiary is entitled to the funds, or the proceeds thereof, so long as he can definitely trace them, until they reach the hands of an innocent holder.</p> <p>3.--: -: Mixing: Payment from Common Fund: Presumption. Where trust money has been wrongfully commingled by a trustee -with his own, and he makes payment from the common fund, it will be presumed that he paid out his own, and not trust money.</p> <p>4. Beneficiary: Extent of Preference. The claim of a beneficiary for trust money may be preferred to the extent of the cash found among the assets of an insolvent trustee at the time of his failure, where it is not affirmatively shown that the cash assets are not part of the trust fund. Rule applied.</p> <p>5. Appeal: Admission of Testimony: Review. Tu a cause brought to this court on appeal, the ruling’s of the trial court on the admission of testimony can not be reviewed.</p>

<p>Í. Verification of Information: Clerk; oe District Court. A clerk of the district court may properly take verifications of information in criminal cases.</p> <p>2. -: Ineormation and Beliee. It is sufficient if an information is verified by the county attorney, on information and belief.</p> <p>3. Piling Information: Leave oe Court. It is unnecessary to obtain leave of court before filing- an information in a criminal case.</p> <p>4. Charge of Larceny: Description. An information charging larceny sufficiently described the stolen property as “fifty-five coats, each coat of the value of fi^e dollars, fifty-five vests, each vest of the value of three dollars, sixty pairs of trousers, each of the value of five dollars; four overcoats, each of the value of ten dollars.”</p> <p>5. Charge of Burglary: Resultant Larceny: Mistrial: Bar. The crime of burglary, and the larceny resulting therefrom, are not so connected in law as to preclude a conviction for larceny, merely because the accused may have been prosecuted for the burglary resulting- in a mistrial.</p> <p>6. Mistrial: Bar: Quaere. "Whether a mistrial resulting from the discliarg-e of a jury because of the illness of one of its members constituted former jeopardy not decided.</p> <p>7. Proof: Variance: Special Ownership: General Ownership. Proof of special ownership in property, the subject of larceny, will sustain a conviction of larceny under an information charging g-eneral ownership.</p> <p>8. Evidence: De Paoto Corporation. Evidence examined, and held to establish the existence of a de facto corporation.</p> <p>9. Objections: Error. Other objections examined, and held not to constitute error.</p>

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

<p>1. Contract' of Insurance: Condition: Violation by Change or Title: Nudum Pactum, A condition in a contract of insurance forbidding a “change of the title, interest or possession of the assured,” is violated by a conveyance of the insured property, even though there be no consideration for the transfer.</p> <p>3. Incumbrance: Assumption: Valuable Consideration. The assumption by the grantee of an incumbrance upon property conveyed to him, is a valuable consideration for the conveyance.</p> <p>3. Delivery of Instrument: Question oe Pact: Intention oe Parties. The delivery of an instrument is a question of fact to be determined by ascertaining the intention of the parties thereto.</p> <p>4. Deed: Transeer oe Title: Delivery. . Whenever it is intended that a deed shall, by virtue of what is said and done, operate to transfer the title, then, in contemplation of law, it has been delivered.</p> <p>5. Recording of Deed: Delivery: Acceptance. The recording of a deed by' the grantor is evidence both of delivery and acceptance, if the conveyance is beneficial to the grantee.</p> <p>6. Evidence. Evidence examined and found insufficient to support the verdict.</p>

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

<p>1. Public Roads: United States Land: Condemnation. Under the provisions of section 2477, Revised Statutes of the United States, lands of tbe general government not reserved for public purposes may be taken and used for public roads.</p> <p>2. --—: Dedication: Prescription. Evidence of long continued use by tbe public tends to show the establishment of a road by dedication over the public domain. So also does the surveying, marking out, platting- and improvement of a road by the public authorities.</p> <p>3. Evidence: Judgment. Evidence examined, and found to support the judgment.</p>

<p>1. Cestui Que Trust: Judgment Against Trustee: AVaiver. A cestui que trust by taking- a judgment against his trustee for the price of trust property -wrongfully sold, thereby ratifies the sale and waives his right to pursue the purchaser.</p> <p>2. Judgment: Pleadings: Proof-: Presumption. Nothing appearing- 1 o the contrary it will be presumed that the judgment appealed fi-'oin Avas within the pleadings and justified by proof.</p>

Error from the district court for Cherry county. Tried below before Harrington, J. 'Che witness Milliman swore that the witness and the deceased were entering the defendant’s domicile with intent to extort money from the defendant by putting him in fear of the loss of his reputation. “If any person shall forcibly, and by violence, or by putting in fear, take from the person of another any money or personal property, of any value whatever, with the intent to rob or steal,…

<p>1. Taxation: Exemption: Educational Use. Property used exclusively for school purposes is exempt from taxation for general revenue.</p> <p>2. -: -: Onus Probandi. A person who claims that his property is not subject to taxation must show affirmatively' the facts rendering- 'it exempt.</p> <p>3. -: -: Residence: Incidental. If a building is used at the same time for school purposes and as a family residence by the person having charge of the school, it is not exempt from taxation for general revenue, unless the residential use is incidental to the other and associated therewith in such wise as to be regarded as part of it.</p> <p>4. Ending: Conflicting Evidence. A finding which has substantial support, although based upon conflicting evidence, will not be disturbed.</p>

<p>1. Former Information: Pendency: Plea in Abatement. The pend-ency of a former information for the same offense in the same court, furnishes no sufficient ground for plea in abatement.</p> <p>2. Evidence: Verdict. Evidence examined, and found insufficient to justify the verdict of the jury.</p>

<p>1. Fraudulent Transfer: Evidence. Evidence examined, and held to establish vendor’s disposition of his stock of merchandise to be with intent to hinder, delay and defraud his creditors, and that knowledge of such fraudulent intent was imputed to the vendee.</p> <p>3.----: Void Sale. The conveyance by a failing debtor of practically all his property, not exempt, to one of his creditors in satisfaction of his debt, the difference between the amount of the debt and the agreed value of the property being evidenced by the note of the vendee in favor of the vendor, with knowledg-e on the part of the vendee that the sale will result in hindering, delaying- and defrauding- the other creditors of the vendor in the collection of their debts, is void as to such other creditors. Sicitz r. Bntce, 16 Nebr., 463, and Kenney Buggi! Go. v. Ashenfelter, 60 Nebr., 1, followed.</p>

<p>3. Written Instructions: Waiver. At- the con elusion of the taking of testimony in an action involving a small amount, it was stipulated by the parties that the court may instruct the jury orally in the case, such instructions to be of the same force and effect as though they were written out and read by the court to the jury in the usual manner. No objection was made or exception or other action taken because the oral instructions were not reduced to writing, filed with the clerk, and given to the jury. Held, That the stipulation waiving- the giving- of the instructions in the usual manner and agreeing- to their being given orally also waived any right of the complaining- party to have them reduced to writing-, filed with the clerk and given to the jury during- its deliberation upon the case.</p> <p>2. Evidence: Verdict. Evidence being conflicting, >he verdict will not be disturbed when supported by sufficient competent evidence.</p>

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

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

<p>1. Fraudulent Transfer: Guilty Knowledge: Constructive Notice. Where a vendor sells and transfers Ms property with the in- . tent and purpose of hindering, delaying, or defrauding his creditors, and .the vendee purchases such property with knowledge of the fraudulent intent of the vendor, or knowledge of such facts and circumstances as would put a prudent man on inquiry, which, if pursued, would lead to a knowledge or notice of the fraudulent purpose of the vendor, such sale and transfer is fraudulent and void as to the creditors of such vendor.</p> <p>2. Instructions. Instructions copied in the opinion held to correctly state the law and to have been properly given.</p> <p>3. -. Instructions requested and refused held properly refused.</p> <p>4. Evidence: Verdict: Judgment. Evidence examined, and held to support the verdict of the jury and the judgment rendered thereon.</p>

<p>1. Detectives: Instruction: Weighing on Testimony. Where informers, detectives, or other persons employed to hunt tip testimony against the accused, are called to testify against him, he is entitled to an instruction to the jury that in weighing their testimony greater care should be exercised than in the case of witnesses who are wholly disinterested. Preuit v. People, 5 Nebr., 377, followed.</p> <p>2. Charge: Conviction: Principal: Accessory. Where one is charged as principal in a felony he can not be convicted as an accessory, and, vice versa, where one is charged as an accessory he can not be convicted as a principal; and where, in a criminal prosecution against a defendant charged as principal in the crime of burglary, the jury are instructed that the defendant may be found guilty if he advised and counseled the commis> sion of the crime, such instruction is erroneous, as authorizing a conviction as an accessory on an information charging him as principal in the alleged burglary. i</p>

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

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

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

<p>1: Creditor: Security from Insolvent Debtor: Intent to Defraud. A creditor may lawfully accept security from an insolvent debtor, but it is not permissible t.o do so for tbe purpose, and witb tbe intention, of defrauding other creditors.</p> <p>3. Mortgage: Form of Absolute Deed: Insolvent Debtor: Badge of Fraud: Withholding from Record: Exaggerated Consideration. A mortgage in tbe form of an absolute deed, when given by an insolvent debtor, is a badge of fraud. So also, under some circumstances, is -the withholding of such an instrument from record, or tbe statement therein of a false and exaggerated consideration.</p> <p>3. Evidence: Judgment. Evidence examined, and found to support the judgment.'</p>

<p>1. Decree of Foreclosure: Modieication: Personal Liability. A decree of foreclosure, in so far as it directs a sale of the mortgaged property, is in no manner affected by a modification touching the personal liability of one of the defendants.</p> <p>2.-: Power oe Oeeicer: Derivation: Order oe Sale: Decree. The power of an officer under a decree of foreclosure is derived from the decree itself, and not from the order of sale issued by the clerk; and if such officer has made the sale in accordance with the decree, it is the duty of the court to confirm it.</p> <p>3. Valid Appraisement: Sale: Complaint: Invalid Appraisement. Where there is one valid appraisement of property and a sale thereof for more than two-thirds of such appraisement, it is no just ground of complaint that there was another appraisement which was not valid.</p> <p>4. Conflicting Evidence. Where the evidence, adduced on the hearing of objections to an appraisement because the valuation is too low, is conflicting, if the finding of the court has substantial support it will not be disturbed.</p>

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

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

<p>1. Information: Immaterial Variance. Where, in an information, a word found in the instrument proved is omitted from the instrument as recited, or a word inserted in the instrument described which is not in the instrument proved, or a word in the instrument proved is abbreviated or misspelled in the instrument described, or numbers and dates are represented by figures, and the chang-e in no manner or for any purpose alters the signification or tends to prejudice the substantial i-iglits of the defendant upon the merits of the case, the variance is immaterial.</p> <p>2. Criminal Code: Rational Procedure: Hypertechnical Rules: Abolition oe Common Law. In adopting the Criminal Code the legislature intended to provide a rational system of procedure for the trial of persons accused of crime, and to abolish the hypertechnical rules of the common law.</p> <p>3. Evidence: Voluntary Confession. Where everything said by or to the accused, with respect to the crime charged, while he was under arrest, is disclosed, and it thus appears that the confession offered in evidence was voluntary and not made under the influence of hope or fear emanating from any one in authority, or concerned in the administration of justice, it is not error to receive such confession.</p> <p>4. Forgery: Essential Element: Fraudulent Intent: Accessory. A fraudulent intent is an essential element of the crime of aiding and abetting the commission of a forgery.</p> <p>5. -: Evidence: Another Transaction. On the trial of a person charged with having aided and abetted another in the forgery of a deed, it is proper, for the purpose of proving the criminal intent of the principal felon, to show that the person who committed the forgery had, but a short time before, forged another deed purporting to convey the same property.</p> <p>6. Exclusion of Evidence: Province oe Jury. It is error to exclude evidence the legitimate tendency of which is to put an innocent complexion upon inculpatory circumstances proven by the • state; the weight of such evidence is for the jury.</p> <p>7 Instruction: Accessorial Act. Where, in the trial of a person charged as an accessory before the fact, the evidence tends to prove the commission of the crime in two or more counties, the court should, in plain terms, charge the jury that there should be an acquittal, if no accessorial act was committed in the county in which the information was filed.</p> <p>8. Exclusion of Certain Evidence Mo Error. It is not error to exclude evidence which has no tendency to impeach any witness on a material point, and which is not substantive proof of any fact relevant to the issue.</p>

<p>1. Sale: Warranty: Notice: Evidence. A harvesting machine was sold on a special warranty that it was made of good material, properly constructed, and would do good work, and conditioned that if the machine did not work as represented, notice thereof should be given the seller and a reasonable time allowed to remedy the defects and to put it in proper order to do good work, when, if it could not be made to do good work, it should be returned to the place where received, and payment of money or notes returned. Upon trial the machine failed to do good work, and an expert was called, who partially remedied the defects, the machine, however, failing to satisfactorily do the work for which it was intended, of which the seller had notice. After the harvest the buyer gave his notes for the machine and retained it with the agreement, as he testified, that the machine should be put in good repair and made to do proper work. Neg’otiations for repairs continued for some time, and no repairs being made, the buyer offered to return the machine, which was refused. Held, Under the facts and circumstances, that the retention of the machine did not estop the buyer from recovering-, by way of counter-claim in a suit on the xiotes, damages because of a breach in the warranty as to the material, workmanship and work guaranteed to be performed by such machine, and that the seller had waived its rig-ht to insist on the machine being returned and the contract rescinded under the provisions of the special warranty.</p> <p>2. Evidence. Where the evidence is conflicting, a verdict of the jury as to amount of damages sustained will not be set aside unless clearly wrong and unsupported by sufficient competent evidence.</p> <p>3. Limitation of Argument. Where the issues are not complicated, and the amoiuxt involved- is small, it is not error for the trial court to limit the time for argument to the jury by counsel to fifteen minutes on each side.</p>

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

Error from the district court for Madison county. Tried below before Cones, J. The relation of attorney and client must exist, in order to make a communication privileged. Romberg v. Hughes, 18 Nebr., 579; Basye v. State, 45 Nebr., 261. The confidential relation of attorney and client does not exist as between the prosecuting officer for the state and a state, witness. Cole v: Andrews, 74 Minn., 93.

<p>1. Evidence: Collateral Fact. Testimony relating to a collateral fact was offered for the purpose of strengthening and corroborating- the theory of the defense, and excluded. The relation of such fact to the main facts in the case appearing to be conjectural and uncertain, and affording no reasonable presumption as to the main issues, held, that the exclusion of such proposed testimony is not prejudicial error.</p> <p>3. Instructions: Motive. The giving- of the instruction copied in the opinion with relation to the want of motive for the commission of a crime, being a circumstance favorable to the innocence of the party accused, held not to be erroneous.</p> <p>3. -: Circumstantial Evidence. An instruction on circumstantial evidence was requested by the defendant, in which it was stated: “If there is any one single fact proved to the satisfaction of the jury which is inconsistent with the guilt of the defendant, this is sufficient to raise a reasonable doubt, and you should find him not guilty.” Held, That such instruction was properly • refused; first, because substantially-the same propositions were embodied in other instructions given; second, because it did not restrict the jury to the consideration of matex-ial facts essential to- the conclusion on which the guilt of the defendant was sought to be established; and third, it pex-mitted the consideration of different facts as distinct and independent propositions, the true rule being, that the facts and circumstances on which reliance is placed for conviction must be con- • sidered and taken together.</p> <p>4. Conviction on Circumstantial Evidence. To justify conviction on circumstantial evidence, it is nccessai-y that the facts and circumstances essential to the conclusion sought must be proven by competent evidence beyond a reasonable doubt, and, when taken together or as a whole, must be of such a character as to be' consistent with each other, and with the hypothesis sought to be established thereby, and inconsistent with any reasonable hypothesis of innocence.</p> <p>5. Instruction: Circumstantial Evidence. An instruction as to the force and effect of circumstantial evidence, copied in the opinion, held to have been properly given.</p> <p>6. Self-Serving Statements: In Extremis: Res Gestae. Statements in one’s own interest, self-serving in their nature, made soon after the commission of the homicide which such person was charged with having committed, even though made under the apprehension of impending death, the person recovering, held, to be inadmissible as evidence, either as declarations in extremis or as a part of the res gestee.</p> <p>7. Cross-Examination. On cross-examination of a witness questions were asked as to alleged prior statements made by him regarding' the action and conduct of the defendant, to which objection was made and sustained. Eeld, Such questions to be improper on cross-examination or for the purpose of laying a foundation for impeachment to affect the credibility of such witness, and the ruling thereon to be without error.</p>

<p>Error from tbe district court for Burt county. Tried below before Keysor, J.</p>

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

<p>1. Direction of Verdict. When there is no disputed question of fact in a case it is proper for the trial court to direct the verdict that shall be returned.</p> <p>2. Hearsay Evidence. Hearsay evidence is inadmissible on the trial of a cause.</p>

<p>Appeal from the district court for Dawes county. Heard below before Kinkaid, J. Opinion supplemental to one appearing in 60 Nebr., 754.</p>

<p>Settlement of Decedent’s Estate: Review: Appeal to Supreme Court. Section 675 of the Code of Civil Procedure does not give the light to have reviewed by the supreme court on appeal the decisions made by a county court in the settlement of the estate of a person deceased, but such decision can be here reviewed by error proceeding only.</p>

<p>1. Enforcement of Contract: Action on Behalf oe Corporation: Ratification. Where, in an' action to enforce. a contract made on behalf of a corporation by an unauthorized agent, the evidence tends to show that the corporation, by acquiescence and acceptance of benefits, ratified such contract, an instruction which, in effect, withdraws such evidence from the consideration of the' jury is erroneous.</p> <p>2. Unauthorized Act: Ratification. An act done in behalf of a corporation by one having no authority to represent it may he ratified by conduct implying approval and adoption.</p> <p>3. Self-Constituted Agent: Ultra Vires: Disavowal of Principal: Presumption from Laches. A corporation having power to ratify or repudiate a contract made in its name by a self-constituted agent, or one acting outside of his authority, should within-a reasonable time determine which it will do; and if it do not disavow the agency and dissent from the contract, assent and approval may he presumed.</p>

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

<p>1. Judicial Order: Collateral Attack: Jurisdictional Infirmity. A judicial order or judgment can not be attacked in a collateral proceeding unless affected by some jurisdictional infirmity.</p> <p>2. Sufficiency of Petition: Test of Jurisdiction. The sufficiency of the petition is not a test of jurisdiction; although it may be defective in substance it -will support a judgment if the court has authority to grant the relief demanded and the facts upon which the demand is based are intelligibly set forth.</p> <p>3. Decree: Lien: Motion to Vacate: Limit of Inquiry. The correctness of a decree giving a party a lien on property, can not be inquired into on a motion to vacate a sale made in conformity with such decree.</p>

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

<p>1. Metropolitan Cities: Statute: Constitution: Removal qe Police Magistrate. Section 103 of the charter of metropolitan cities, (Session Laws, 1897, ch. 10), to the extent that it assumes to confer upon the district courts authority to remove police magistrates for misconduct in office, is legislation prohibited by the constitution and, therefore, void.</p> <p>2. Removal for Official Misconduct: Distribution oe Powers: Quiere. Whether the power to remove an officer for official misconduct can be concurrently exercised by two departments of the government without violating the provision of the constitution relating to the distribution of powers, Quiere.</p>

<p>1. Expert Testimony: Admission: Judicial Discretion. In determining' tlie competency of a witness to testify as to the values of land regarding' which there is a controversy, much discretion is lodged in the trial court as to the admission of such testimony, and unless it is clearly inadmissible, as a matter of law and prejudicial, the ruling' will not be disturbed.</p> <p>3. Natural Elow of Water: Eei-ect oe Mill-Dam: Measure oe Damages: Testimony: Instruction. A plaintiff testified as to how the construction of a mill-dam affected his land by raising the water above the natural flow and thereby increased the danger of stock drowning therein, and stated that he had already lost some cattle in that manner, the rule as to measuring the damages sustained being correctly given the jury in the instructions of the court; iheld, that no rights of the defendant were prejudiced by tbe admission of such testimony.</p>

<p>1. Schoolhouse: Real Estate Mortgage: Prior Lien: Adjudication. A schoolhouse was erected on a part of a tract of laud of eighty-acres incumbered by a real estate mortgage. The mortgage lien was foreclosed, the decree establishing the mortgage as a prior lien on the real estate, to which the interest of the school district was subject and inferior. Sold, Not to be au adjudication that the schoolhouse was a part of the realty-and included in the mortgage lien.</p> <p>3. Construction of Statute: Authority of Board: Title to Land. Under the provisions of section 7, subdivision 5, chapter 79, of the Compiled Statutes, the authorities of a school district have no authority to enter into any agreement, contract or arrangement, express or implied, to build a frame schoolhous.© on a site for which they have not a title" in fee, without the privilege to remove the same when lawfully directed to do so by the qualified voters of the district.</p> <p>3. Condemnation of Land: Measure oe Damases. Where a schoolhouse has been erected upon land upon which there exists a .mortgage, the school district authorities may, after the erection of such building, condemn the land required for a site for such building, and the true measure of damage is the value of the land .taken, exclusive of the value of the building, and the damage to the remainder, if any.</p>

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

<p>1. Action by Mortgagee: Accounting: Priority oe Liens: Junios Incumbrancer: Trustee. In an action by a mortgagee, where it is sought to have an accounting and an ascertainment as to priorities of liens and to charge a junior incumbrancer as trustee of the proceeds of the sale of mortgaged property, and to recover such proceeds to apply on the prior mortgage and the debt secured thereby, held that such action is properly cognizable as a proceeding in equity, and should be treated as such.</p> <p>2. Jurisdiction of Equity Court. Where a court, in the exercise of its equity powers, acquires jurisdiction for any purpose, its jurisdiction will be retained for all purposes and to try .all issues raised in the action.</p> <p>Exhibits: Physical Attachment. Exhibits attached to a petition in a case, and being a part of the flies therein, which are designated and referred to in an amended petition as exhibits attached thereto, and by reference made a part of the pleading, will be treated as such, in the absence of a motion directed to the same, in determining whether such amended pleading . states a cause of action, even though not physically attached to such amended petition.</p> <p>-1. Note and Mortgage: Pleading: Execution and Delivery: Answer: Admission: Mere Denial of Ownership. Where in an answer the execution and delivery of a note and mortgage pleaded' in the petition are admitted, the legal presumption is that the ownership continued and remained in the party. to whom delivered, and a mere denial of ownership in the answer is unavailing. The burden is on the defendant, after admitting the execution and delivery, to plead and prove some fact showing such want of ownership.</p> <p>5. Foreclosure Sale: Demand oe Proceeds: Costs. A demand by a party claiming the proceeds of the sale of mortgaged property from another can only affect the question of. costs; and where both parties claim a prior right to such■ proceeds, no demand is required, even for the purpose mentioned.</p> <p>6. -: -: Intervention: Statute oe Limitations. Where, in an action to reach the proceeds of the sale of mortgaged property to apply on an amount alleg'ed to be due on a note secured by mortgage, the makers, by intervention, deny that anything was due, and one of the issues tried was as to the amount due on such note, held that the statute of limitations did not run during the litigation, even though the payees had not formally declared on such note and prayed judgment as against the makers.</p> <p>7. Partial Failure of Consideration: Evidence. Evidence in the case held to be insufficient to support a verdict or finding on an allegation as to fraud or mistake in the weight of cattle for which the note sued on had been given.</p> <p>8. Review: Insufficiency oe Evidence. Where on review in error proceeding in this court it is held that the evidence on the trial of the case is insufficient to support an allegation in the pleadings, and on retrial of the case the evidence in support of such allegation is substantially the same as in the first trial, the former ruling will be adhered to and followed as the law of the case as to the sufficiency of such evidence.</p> <p>9. Instruction. Instructions on an issue raised by the answer and following the allegations thereof held to be correctly given.</p> <p>10. -: Measure oe Damages: Harmless Error. An instruction as to the measurement by which recovery may be had, even though incorrect, is harmless error, if upon that issue the jury found against any recovery whatever.</p> <p>11. Verdict in Equity Case: Effect. The verdict in an equity case on a finding of fact is advisory only and not binding and conclusive on the trial court.</p> <p>13. Evidence. Evidence examined, and held to support the judgment rendered in the trial court.</p>

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

<p>1. Dormant Judgment: Revivor: Res Adjtjdicata. In a proceeding to revive a dormant judgment the defendant and judgment debtor must be held to have litigated in the action wherein the judgment was obtained every matter necessary to support any defense he then possessed against the demand of the plaintiff for a judgment against him.</p> <p>2.--: -: ---: Validity. In such proceeding no objection can be urged or inquired into which goes behind the original judgment not directed to its validity.</p> <p>3. Plaintiff in Foreclosure: Purchase at Sale: Resale: Deficiency Judgment. A plaintiff in foreclosure proceedings may lawfully purchase the property sold to satisfy a decree in his favor. The fact that he afterwards sells the property for a sum equal to the amount of the decree and costs can not affect his rights with respect to a deficiency judgment obtained in the equity action.</p>

<p>Error from the district' court for Dodge county. Tried below before G-rimison, J.</p>

<p>Ebror- from the district court for Nemaha county. Tried below before Stull, J.</p>

<p>1. Res Ad judicata: Petition: Evidence. Where it has been held on au error proceeding in this court that a petition states a good ■ cause of action, evidence sustaining the allegations of such petition is sufficient to support a verdict and judgment in favor of the plaintiffs in the action.</p> <p>2. Assumption of Incumbrance: Consideration. Where, in a conveyance of real estate, the grantee accepting the same covenants to pay an incumbrance on the land conveyed in the following words contained in the -deed, “Subject to incumbrances amounting to fourteen thousand four hundred (14,400) dollars, which the said Joseph Garneau, Junior, [the grantee] hereby assumes and agrees to pay, and the interest on same from Dee. 11, 1890,” 1leM, that such an agreement is founded on a valid consideration, binding on the grantee, and will support an action for the recovery of the debt thereby assumed.</p> <p>3. Action at Law: Pendency: Concurrent Equitable Proceeding: Abatement. During the pendency of the action at law for the recovery of a debt secured by mortgage the plaintiff began an action in equity in the federal court to enforce his lien as against the mortgaged property, obtaining at the same time in the federal court leave or authority under the provisions of section 848 of the Code, as existing prior to its amendment in 1897, to prosecute Ms action at. law. Held, That the pendency of the equity action did not work an abatement of the suit at law.</p> <p>4. Enforcement of Section 848: Law Courts: Equity Courts. The enforcement of the provisions of the section of the statute referred to belongs to a court of equity, and they are not intended to change or affect the jurisdiction and practice in a court at law.</p>

<p>1. Commissioners of Insanity: Jurisdiction. The commissioners of insanity have cognizance not only of applications for admission to the hospital for the insane, but also for the safe-keeping otherwise of insane persons in their respective counties.</p> <p>3.-: -: Affidavit. An affidavit filed with the commissioners of insanity alleging that a person resident of their county is insane and his being at large is dangerous to the community, confers jurisdiction upon the board to act.</p> <p>3. Insanity: Evidence: Refutation. Insanity can not be established by proof of the reputation of the party in that regard.</p> <p>4. Advice of Counsel: Avail: Statement oe all Facts: Good Faith. The advice of counsel, to be of any avail, must have been given after a full and fair statement of all the facts within the knowledge of the person seeking the same, and must have been relied upon in good faith.</p>

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

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

Error from the district court for Dixon county. Tried below before Evans, J. Do the pleadings of the defendant, when taken into consideration with those of the plaintiff in the lower court, state a cause of action? The pleadings must be construed together. To admit evidence there must be a statement of ultimate facts conforming to the evidence.

Error from the district court for Dawson county. Tried below before Sullivan, J. The defendant below should have been prosecuted by indictment instead of by information. The proceeding in this case was contrary to the general and uniform rule enjoined by the state constitution, section 19, article 6. Under the constitution, and in the nature of things, the power to determine whether prosecutions shall be by indictment or by information is legislative.

<p>1. Public Records: Inspection. Public records are open to the free inspection of all citizens of-the state, and other persons interested in such examination.</p> <p>3.--: Justice Docket. Dockets of a justice of the peace containing' the entry of judgments are public records.</p> <p>3. Justice of the Peace: Transcript. A justice of the peace must furnish, upon request and upon being paid the legal fee therefor, an authenticated transcript of a judgment recorded in his docket to either of the parties to the same, or to any one interested in obtaining such transcript.</p> <p>4. -: -: Party in Interest: Attorney in Fact. An attorney in fact for one against whom a judgment has been rendered on the docket of a justice of the peace has such an interest as entitles him to demand a transcript of such judgment.</p>

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

<p>1. Mortgage: Conditional Clause: Election: Notice. Where amortgage provides that the failure of the mortgagor to comply with any of its conditions shall cause the entire debt to become due, and provides, further, that the mortgagee may in such case, if he so elect, proceed at once, without notice, to enforce his security, the commencement of a foreclosure suit is notice of his election, and no other notice is necessary.</p> <p>2. Tax: Paving Assessment. Special paving assessments are “assessments” within tjie meaning of a clause in a mortgage imposing on the mortgagor the duty of making prompt payment of all “taxes and assessments” lawfully charged against the • mortgaged property.</p> <p>3. Mortgage: Condition: Bights oe Moetgagee. Where a mortgage is conditioned that on the mortgager’s default the mortgagee may pay delinquent taxes and assessments, and insurance, and add such payments to the original debt and that the mortgage shall stand as security therefor; and provides, also, that on the mortgagor’s default the mortgagee may declare the' whole debt due and foreclose at once, the mortgagee may not only make the payments which the debtor failed to make, but also, at his option, declare the whole dtebt due and proceed immediately to collect it by suit.</p> <p>4. Tax Beceipts: Admission. An admission, when tax receipts are offered in evidence, “that the taxes described in the receipts were duly levied and assessed” is an admission that the assessments were made at the dates mentioned in the receipts.</p> <p>5. Collector’s Beceipt: Beeerence to Date: Evidence Pee Se. A tax collector’s receipt in which a special assessment is described by reference to the date at which it was made is per se evidence that the assessment was made at the date named.</p> <p>6. Taxes: Agreement to Pat: Meaning oe “Before Delinquent.” An agreement to pay taxes before they become delinquent is not fulfilled by paying such taxes on the day they become delinquent.</p> <p>7. Unnecessary Costs: Complaint: Items. A party who claims that unnecessary costs were taxed against him must point out the items of which he complains. .</p>

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

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

Original procedure in mandamus to enforce a mandate of the supreme court directing the district court to enter judgment for the amount found due.

<p>1. Delivery of Deed: Presumption: Proof of Manual Delivery. The . presumption of law of the delivery of a deed of conveyance on the date of its execution is overcome by proof of a manual ' delivery and acceptance by the grantee at a subsequent date, where there is nothing warranting a conclusion that a delivery was intended by the grantor prior to the time of the manual delivery.</p> <p>3. Fraudulent Conveyance: Preferring Creditor: Conveyance to Debtor’s Wife. Where land was sold by a debtor to one of several creditors for an ample and fair consideration in satisfaction of bona fide pre-existing- debts, and the purchaser after-wards contracted to reconvey the land to the wife of the grantor, held, that the subsequent transaction was not evidence of a fraudulent conveyance in the first instance for the purpose of defrauding, hindering or delaying other creditors in ' the collection of their debts.</p> <p>3. Conveyance by Debtor to Relative. A transfer of property by a debtor to a relative, which has the effect of hindering or delaying other creditors in the collection of their debts, will be scrutinized very closely;- yet it will be sustained if made in good faith and for an adequate consideration. Farrington v. Stone, 35 Nebr., 457, followed.</p> <p>4. Debtor’s Right to Satisfy or Secure Creditor. A debtor has a right to satisfy or secure one or more of his creditors by the transfer of a reasonable amount of his property as security or payment of "a "bona fide debt; and the debtor has the right to make such preference of his creditors, even though the effect thereof be to defeat, hinder or delay other creditors in the collection of their'debts; and this is so even though the parties knew that such would be the effect, and even though the property so taken as security was all the debtor had, if the value of the property so transferred is reasonably proportionate to the amount justly owing to the creditor so preferred, and was taken by the creditor for the sole and only purpose of protecting himself in the collection of his debt.</p> <p>5. Procedure to Dissolve Attachment. Proceedings taken by a debtor to dissolve an attachment levied on his property, and after the dissolution thereof securing and preferring certain of his creditors to the exclusion of the attachment creditor, held not to constitute evidence of a fraudulent transfer of the debtor’s property for the purpose of hindering or delaying his other creditors.</p>

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

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

<p>1. Payment of Occupation Tax Not Condition Precedent to Conduct of Business. The payment of an occupation tax can not be made a condition precedent to obtaining a license to conduct the business sought to be taxed.</p> <p>2. Money Paid on Condition of Obtaining License is Not Tax Under Statute. Where money is collected or paid as a condition of obtaining a license, it is license money, and not a tax, under the provisions of section 5, article 8, of the constitution.</p>

<p>1. Absence of Bill of Exceptions: Presumption as to Evidence. It will be presumed, in the absence of a bill of exceptions, that there was before the trial court acting on a motion to approve the report of a receiver, and the objections thereto, evidence sufficient to support the order made.</p> <p>2. Presumption of Regularity of Proceedings: Onus Probandi. All presumptions are in favor of the regularity of the proceedings and the order of the trial court, and the burden of proving the contrary is on the one asserting- error, and until such is made to appear affirmatively from the record, the order or judgment complained of will not be disturbed.</p> <p>.3. Receiver of Insolvent Bank is Officer of Court. A receiver of an insolvent bank appointed by the district court for the purpose of taking charge of its assets and winding up its affairs is a special officer of the court, and his report, being verified, is prima facie evidence of its correctness and entitled to the same consideration as the return of any other officer of the court, and in order to be impeached must be overcome by other competent evidence.</p> <p>4. Receiver: Compensation: Discretion oe Court. The allowance of compensation of a receiver for his services is largely in the discretion of the trial court having charge of the receivership, and unless it is made to affirmatively appear that the amount allowed is erroneous, and there has been an abuse of discretion, the order of allowance will be sustained.</p>

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

<p>1. Terms of Promissory Note Can Not Be Contradicted by Prior or Contemporaneous Parol Agreement. The terms of a promissory note can not be contradicted, altered or varied by evidence of a prior or contemporaneous parol agreement between the payor. and the payee.</p> <p>2. No Conflict, No Error for Court to Refuse to Submit to Jury. Where there is no conflict in the evidence, it is not error for the court to refuse to submit the ease to the jury.</p>

<p>1. Special Session of Legislature. At a special session of the legislature no business can be transacted except such as is included in the objects of legislation stated in the proclamation of the executive convening the law-making body.</p> <p>2,-: Scope oe Governor’s Call. Section 3, article 1, chapter 72, Compiled Statutes, was passed at a special session of the legislature held in 1867, and is within the scope of the third object designated by the governor in his proclamation convening the legislature.</p> <p>3. Governor’s Proclamation. The entire proclamation of the governor convening the legislature in special session should be considered in detei’mining- whether any given act at such session is germane to the objects stated in the call of the executive.</p> <p>4. Passenger bn Railroad Train: Injury: Presumption. When one is injured while a passenger on a railroad train, the presumption is that such injury was caused by the negligence of the carrier.</p> <p>5. Liability of Carrier. A carrier is liable for damages resulting from injuries sustained by a passenger, unless the latter was guilty of criminal negligence.</p> <p>6. Statute: Fourteenth Amendment. Section 3, article 1, chapter 73, Compiled Statutes, does not contravene the fourteenth amendment to the constitution of the United States.</p>

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

<p>1. Rinding of Pact Based on Conflicting Evidence Not Reviewable. A finding- of fact by the district court based on conflicting evidence will not be disturbed on review.</p> <p>2. Pleader of Statutory Counter-Claim Must Allege Pacts Bringing It Within Statute. When the right to a counter-claim depends wholly upon statute, the defendant must not only plead a good cause of action in his favor against the plaintiff, but he must allege facts which bring his claim within the provisions of the statute.</p> <p>3. Counter-Claim Can Not Accrue After Bringing of Action. Matters accruing subsequently to the bringing of the action can not be pleaded as a counter-claim.</p>

Heard below before Stull, J. Reavis & Reams: The bridge is not a part of the railroad line, but is a separate and independent structure, authorized by congress and not by the state. The Gass County Case, 25 Nebr., 348, is decisive of this one. The railroad is an entirety. The bridge is a part of the road. Union P. R. Go. v. Hall, 91 U. S., 352; Brooks v. Railway Go., 101 U. S., 451.

Error from the district court for York county. Tried below before Good, J. This case has been before this court before (56 Nebr., 439), and the judgment was reversed for the reason that the testimony of the defendant in error showed contributory negligence on his part. Upon the trial, resulting in the verdict which we now seek to reverse, the judgment rests on substantially the same evidence.

<p>1. Election of Disqualified Person by' Legal Votes Void. Where a plurality of legal votes is cast for a person for a public office who is ineligible thereto, the election is void, and the one who receives the next highest number of votes is not entitled to the office or the emoluments thereof.</p> <p>g. Agreement Between Electors. The agreement of electors set out in the opinion did not render their votes illegal.</p>

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

<p>1. Written Contract: Creation op Partnership: Intention op Pasties. Whether a written contract creates a partnership is to be determined by ascertaining tbe intention of the parties from their language.</p> <p>3. Partnership: Estoppel: Intention. Where no question of estoppel is involved persons can not be held to be partners despite their intention not to form that relation.</p> <p>3. Partnership Profits: Participation: Intention. The right of participation in the profits of a business indicates the existence of a partnership, but actual intention is the decisive test.</p> <p>4. Partnership Contract: Bent. A contract, by the terms of which the owner transfers to another the exclusive use and control of property and is to receive as rent therefor a portion of the profits arising from such use, is not a partnership contract.</p>

Original jurisdiction. Proceeding to recover penalties under section 9, article 12, chapter 72, Compiled Statutes, 1899. Motion for judgment on the pleadings. Upon the motion of the defendant the Chicago, Rock Island & Pacific Railway Company, for judgment on the pleadings, the court has expressed a desire to hear argument upon the following questions: 1.

Error from the district court for Douglas county. Tried below before Slabaugii, J. If the constitutional restriction prohibits the legisla1 are from extending the criminal jurisdiction of district courts beyond county lines, the legislature can not, to obtain the samé object, authorize a district judge .to accept a plea of guilty and pass sentence in another county. IlurTbut v. State, 52 Nebr., 428. The right of trial within the county is a mere personal privilege.

<p>1. Foreclosure: Deficiency Judgment. In an ordinary action of foreclosure appellants were made parties, and it was sought to charge them personally for any deficiency which might remain after the sale of the mortgaged premises. In the decree of foreclosure the appellants were found personally liable for the mortgage indebtedness, and in the decree it was adjudged that if the money arising from the sale of the property shall be insufficient to satisfy the amount found due, the sheriff shall specify the amount of such deficiency, and, upon confirmation of such report, the mortgagee, upon application, is entitled to a judgment for deficiency against appellants, and to execution for the amount of the deficiency found due. Held, That the decree was not final and appealable as to appellants.</p> <p>8. -: -. A deficiency judgment in an action to foreclose a real estate mortgage, under the provisions of our Code of Civil Procedure, as it existed prior to the amendment of 1897, could not be rendered until the coming’ in of the report of the sale of the mortgaged property. Devries v. Squire, 55 Nebr., 438.</p> <p>3. Final Decree: Definition. A decree is not final and appealable until the court has" finally determined and disposed of the entire controversy between the parties, so that nothing remains to be done except to ministerially execute its provisions in the court in which it is rendered.</p> <p>4. Finding: Deficiency: Judicial Function. The finding of a trial court of the amount of a deficiency on the incoming of the report of the sale of the mortgaged premises, and rendition of a judgment therefor, are judicial functions.</p> <p>5. Former Opinion. Former opinion, Parmele v. Schroeder, 59 Nebr., 553, adhered to.</p>

<p>1. Accident Insurance: Provision of Policy eor Total Disability: No Recovery eor Partial Disability. In a policy' of accident insurance, wherein it is provided for indemnity when the injury resulting from an accident shall “wholly disable him from transacting- any and every kind of business pertaining to his occupation,” a partial disability only in conducting the business pertaining- to the occupation given will not justify, a recovery under the provisions of the policy.</p> <p>3. Phrase “Wholly Disabled” Should Be Given Reasonable Construction. The phrase “wholly disabled” should be given a reasonable and practical constructon, so as to carry out the intention of the parties, and give to the assured the protection contracted for.</p> <p>3. Total Disability: Definition. If an injury received by the assured renders him less capable of performing the duties required in the conduct of his business, but notwithstanding the same he is able to devote substantially all of his time to the business, and to do practically all kinds of work, and perform all necessary acts for the prosecution thereof and accomplish, substantially, results of the same character as before the injury,’ he would not be wholly disabled from transacting “any and every ' kind of business pertaining- to his occupation,” within the meaning of the contract of insurance.</p> <p>4. -: -. Where there are different branches of the business pertaining to the occupation in which a party is insured, the prosecution of one of which might be. prevented by an injury, and yet the other engag’ed in, prosecuted and carried on, the injury would not then be regarded as preventing the assured from performing “any and every kind of business pertaining to his occupation,” within the meaning of the policy.</p> <p>5. -: -: Evidence. Evidence examined, and, when most favorably construed towards the plaintiff, 7ie7d the jury would not he warranted jn inferring a total disability, within the meaning of the contract, entitling- the plaintiff to recover, and that a peremptory instruction ,to return a verdict for the defendant was proper.</p>

<p>1. Chattel Mortgage: Description Void for Uncertainty. A mortgage of chattels, where the property is described as “twenty-five (25) cattle, consisting of ten cows, seven steers, and eight heifers. The above described chattels are now in my possession, are owned by me,” et'c., and the parties mortgaging the same had in their possession at the time a larger number of the same kind and description, and there is no separation, designation or means of identification by which those mortgaged could be distinguished from the remainder of the herd, is void for uncertainty.</p> <p>2. -: -: Identification. The description of property in a chattel mortgage will, as a rule, be held sufficient, where it will enable a third party, aided by inquiries which the instrument itself suggests, to identify the property. Buck v. Davenport Savings Bank, 29 Nebr., 407.</p> <p>3. Evidence. Evidence examined, and held to be insufficient to support the verdict of the jury.</p>

<p>1. Appeal in Equity: Reversal: Trial De Novo: Res Ad judicata. Where, on an appeal in an action in equity, the decree rendered is reversed and remanded for want of sufficient evidence to sustain it, and on a second trial de novo additional and material evidence is introduced and an appeal again taken, the second appeal is to be considered on the record then presented; uninfluenced by the prior decision on the question of the sufficiency of the evidence.</p> <p>2. Plea of Fraud: - Conclusion. An allegation in an answer “that if any such deed as is described in plaintiff’s petition is in existence and executed by her as g-rantor therein, or one of the grantors, that such execution was obtained by fraud, either by the plaintiff, the said M. L. Luebben or some person in their interest,” held to be pleading a conclusion only, and that the facts relied on to constitute fraud, to be available, must be specifically pleaded and proven.</p> <p>3. Finding of Fact: Sueeicient Evidence. A finding of fact by the trial court will not, on appeal, be disturbed, unless unsupported by sufficient competent evidence.</p> <p>-: -. Evidence examined, and held to support the findings and decree rendered by the trial court. 4.</p> <p>5. Party: Complaint: Prejudice. A party who is not prejudiced by the ruling complained of has no legal ground of complaint.</p> <p>6. National Bank: Peal Estate Security: Borrower Can Not Be Heard to Plead U. S. Statute Prohibiting Suon Security. A party who has secured a loan from a national bank, and given real estate security therefor, can not be heard to deny the right of the bank to enforce the provisions of the mortgage because of the section of the United States statutes prohibiting' the taking of real estate security for a loan negotiated by a national bank.</p> <p>7. Keal Estate Security: Contemporaneous Loan: Enforcement. Where security on real estate has been taken by a national bank on a contemporaneous loan, the same may be enforced, notwithstanding- the provisions of the United States statute prohibiting that character of security.</p> <p>8. Plea in Abatement: Pending Action: Abeyance by Stipulation. Where a suit is begun, and prior suits in another county are pending on the same cause of action, and the parties stipulate that the prior suits shall rest in abeyance during' the pendency and until the final disposition of the suit last begun, and that thereupon -the same judgment and decree shall be rendered as is rendered in the action tried, such stixmlation held to be a waiver of any right to file a plea in abatement because of the pendency of the prior actions.</p>

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

<p>1. Assignment of Error: Brief: Waiver. Assignments of error not argued in the brief are deemed waived.</p> <p>3. ■-: Damages: Bill of Exceptions. An assignment that the damages are excessive can not be considered in the absence of a bill of exceptions.</p> <p>3. Instructions: Exceptions: Review. Instructions will not be reviewed where they were not excepted to in the trial court.</p>

Error from the district court for Cherry county. Tried below before Westover, J. M. F. Earrington: The question of whether a person charged with an infamous crime before a state court can be tried upon information is no longer an open question. Bolin v. Nebraska, 176 U. S., 83.

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

Error from the district court for Washington county. Tried below before Baxter, J. A complaint must be verified by one who is a competent witness. 1 Bishop, New Criminal Procedure [4th ed.], secs. 232, 719, and authorities therein cited; People v. Quamtrom, 93 Mich., 254; Greenleaf, Evidence [Lewis’s-ed., 1896], sec. 374 et seq.; Perez v. State, 10 Tex. App., 327. The witness who verified the complaint claimed to be the wife of the accused.

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

<p>1. Pleading: Answer: Admission: Review or Evidence. Where the answer admits the execution of the contract sued on, it is prejudicial error to receive evidence on the trial tending to show that such contract did not exist at the time the answer admits defendant executed it, or for some years thereafter.</p> <p>2. Witness: Truth and Veracitt: Reputation. Evidence of the reputation of a witness for truth and veracity must relate to such reputation at the place of his residence at the time he testifies. Evidence of such reputation in a community several years after'he has ceased to reside there is irrelevant.</p> <p>3. Written Contract: Parol Agreement: Evidence Excluded. Evi- ■ dence of a prior or contemporaneous parol agreement between the parties to a written contract which varies or contradicts the terms of the latter is inadmissible, the execution thereof being admitted.</p>

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

<p>1. Common Carrier: Railroad Company: Live Stock: Suitable Cars: Due Care. A railroad company acts in tlie capacity of a common carrier of live stock which, it receives for transportation; and as snch carrier it is bound to provide cars fit and suitable under existing conditions, and exercise due care to carry safely.</p> <p>2. Where Shipper Does Not Agree to Furnish Caretaker, Company-Liable for Loss Through Negligence. Where the shipper of live stock does. not agree to furnish caretaker, and some of the animals die or are injured for want of proper care and protection while in transit, the carrier is liable and must bear the loss.</p> <p>3. Where Shipper Agrees to Furnish Caretaker but Fails. Where a shipper of live stock agrees to furnish a caretaker and fails to do so, the carrier, if it has knowledge of such failure and proceeds under the shipping contract, is liable for any loss resulting from its failure to provide the stock with proper care and protection.</p> <p>4. Denial Without Flea of Justification: Evidence. Where the defendant denies the commission of a wrongful act with which he is charged and pleads nothing by way of justification, evidence of justification responds to no issue and is immaterial.</p> <p>5. Evidence: Verdict. Evidence examined, and found to support the verdict.</p>

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

<p>Error from the district court for Olay county. Consolidated with Guy W. Secord, appellant, v. M. Louisa Powers, appellee, No. 10,033. Tried below before Hastings, J.</p>

Error from tbe district court for Lancaster county. Tried below before Cornish, J. Norval, C. J., dissenting. The complaint filed by Scott contains a sufficient charge of incorrigibility under section 6, article 1, chapter 75, Compiled Statutes of Nebraska. 1.

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

<p>1. Delinquent Tax Sale: Purchaser: Right op Action. A purchaser of real estate for delinquent taxes can not maintain an action at law for the recovery of such taxes against the owner or person in whose name the property is assessed.</p> <p>3. Foreclosure of Tax Lien: Petition: Allegation op “No Proceedings at Law” Unnecessary. A petition in equity for the foreclosure of a lien for taxes, paid by the purchaser of real estate sold for delinquent taxes and subsequent taxes paid thereon, is not so fatally defective as to preclude a decree in plaintiffs favor being based thereon, because it does not allege that there have been no proceedings at law had or begun for the recovery of the amount for which a lien is claimed, or any part thereof, such petition containing other proper averments.</p> <p>3. Tax Sale: Assignment oe Public Right. If real estate is liable for taxes and there is a legal tax due and delinquent against the land, and it is sold for delinquent taxes, and the tax purchaser fails to acquire a good title to the real estate because of any violation of the revenue law or the failure of public officers to comply with its provisions, the law declares that the sale shall nevertheless be effective as an assignment of the public’s rights and liens against the real estate to the attempted tax purchaser thereat. Grant v, Bartholomew, 57 Nebr., 675,</p> <p>4. Valid Assessments: Void Sale: Enforcement of Lien. Where the assessments and levies of taxes against real estate are valid, the purchaser, even at a void sale, is subrogated to the rights of the public, and may enforce his lien against the property on which the taxes are assessed. Adams v. Osgood, 60 Nebr., 779.</p> <p>5. County Treasurer: Delinquent Taxes: Failure to Carry Forward. The failure of the county treasurer to carry forward on the tax records delinquent taxes for prior years will not invalidate the sale of real estate for taxes assessed for subsequent years.</p> <p>6.-: Failure to Advertise: Effect. The failure of the county’ treasurer to advertise for public sale real estate upon which there are delinquent' taxes due, as provided by law, while it would invalidate the sale of such real estate for taxes, it would not affect the purchaser’s lien on the property, who could enforce the lien to the same extent that the county could, were it not for the payment of taxes made by him.</p> <p>7. Giving Statutory Notice Not Essential: Failure: Effect: Costs. The giving of the notice required by section 123, article 1, chapter 77, general revenue laws, before a tax deed can issue, is not essential where the tax purchaser proceeds in equity to foreclose his tax lien, as provided by statute. The failure to give such notice could do no more than affect the question of costs in'case the owner came in and offered to redeem.</p> <p>8. Railroad: Right of Way Over Land Sold: Not Necessary Party. Where a right of way for a railroad company has been acquired over land sold for delinquent taxes, in proceedings to foreclose the tax lien, where such right of way is excepted in the petition in foreclosure, the railroad company is not a necessary party, and has no interest in the subject-matter of the action.</p> <p>9. Assessment of Real Estate: Name of Rightful Owner Not Essential. The assessment of real estate in the name of the rightful owner is not absolutely essential to the validity of the tax assessed against such real estate and the lien acquired thereon by the purchaser of such property at tax sale.</p> <p>10. Evidence Insufficient and Contrary to Decree and the Law. Evidence examined, and held that the findings and judgment are not supported by the evidence, is contrary thereto and to the law applicable to the ease.</p>

Heard below before Thompson, J. Under section 476 of the Code, under the title “Executions,” only the legal title of the judgment debtor can be levied on. Dicorah v. More, 25 Nebr., 735; Connell v. Gallighcr, 36 Nebr., 749.

<p>1. Action on Official Bond: Excess oe Fees: Answer: Judgment on Pleadings. In an action by a county on tlie official bond of a county officer for fees alleg’cd to have been received in excess of the amount allowed by law, and for which the officer failed to account and pay into the county treasury, an answer alleging a settlement and full accounting with the county commissioners of all items mentioned in the petition, and regarding the same facts iherein mentioned, which were well known to and understood by the county commissioners, and that all o£ said accounts were duly and legally settled between the plaintiff and the said officer, presents a good defense, and in the absence of a reply, judgment on the pleading-s in favor of the defendant is proper.</p> <p>2. Settlement of Officer with County Board Conclusive in Absence of Fraud, Mistake and Imposition. Where a full and complete settlement of a county officer with the county commissioners, who are authorized to make the same, has been made, such settlement is final and conclusive, unless there is fraud, mistake or imposition in making the same.</p>

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

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

<p>1 Information for Rape: Female Child: Negativing Incest. In an information under the second division of section 13 of the Criminal Code, charging a person with carnally knowing a female child under the age of eighteen years, with her consent, it is not necessary to alleg'e that such female child is other than the “daughter or sister” of the one committing the assault.</p> <p>2. -: Allegation oe Consent. Nor is it necessary to allege that the offense was committed “with the consent” of such female child.</p> <p>3. Cross-Examination: Discretion oe Court. As a general rule, the re-examination of a witness should be limited to the points arising out of the cross-examination. But whether this rule shall be strictly enforced or not seems to rest entirely in the discretion of the presiding judg'e. SoMenelcer v. State, 9 Nebr,, 241, followed.</p> <p>4. Age of Prosecutrix: Testimony oe Mother and Sister. Admission of testimony of mother and sister as to age of prosecutrix held without error.</p> <p>5. Subsequent Acts of Defendant in Leaving Locality May Be Shown. The state may show, in a prosecution for rape, the subsequent acts of the defendant soon after the alleged commission of the crime, in leaving the locality apparently for the purpose of escaping arrest and prosecution.</p> <p>0. Instructions. Instructions quoted, in view of the evidence on behalf of the defendant, held proper.</p> <p>7. Evidence. Evidence examined, and found sufficient to support the verdict of the jury and the judgment of the trial court.</p>

<p>1. Pleading of Fact: Concurrent Allegation: Proof. Where both parties in their pleadings allege a given fact, proof of the averment is unnecessary.</p> <p>2. Finding of Fact: Conflicting Evidence. A finding of fact based on conflicting evidence will not be molested on review.</p> <p>3. Plaintiff Transferring Claim: Action Continued in What Name? Where plaintiff, after suit commenced, transfers his interest in the subject of litigation to a third party, the action may be continued in the name of the original plaintiff, or the court may allow the transferee to be substituted for him.</p>

<p>1. L'gis'ative Fractments: Judicial Notice. Courts -will fake'judicial notice of legislative enactments and of the records kept by the two houses of the legislature.</p> <p>2. Absenté of Feccrd: Presumption. Where legislative journals are defective or incomplete, their silence will not, as ag'ainst an enrolled bill, be taken as conclusive evidence that the yeas and nays were not taken and recorded on the final passag'e of a bill.</p> <p>3.--:---r: Extrinsic Evidence, Extrinsic evidence may not be received to contradict the legislative journals, but such evidence is competent to supply missing portions of the journals which had become detached throug-h accident or design.</p> <p>4. Eniolled Bill: Prima Facie Evidence. Enrollment, authentication and approval of an act of the legislature are prima facie evidence of the regularity of its enactment.</p> <p>5. Amendment: Germane to Section Amended. Chapter 31, Session Laws, 1899, amending section 3, chapter 28, Compiled Statutes, 1897, is germane to the section amended, and its provisions are within its title.</p> <p>6 General Law: Special Legislation. A general law, though affecting a single county, is not for that reason special legislation.</p> <p>7. Former Opinion. Former opinion, 60 Nebr., 327, adhered to.</p>

<p>Error from the district court for Nemaha county. Tried below before Stull, J.</p> <p>Sullivan, J., dissents.</p>

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

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

Heard below before Sornborger, J. Smith has no standing in a court of equity, i,,r the reason that “He who comes into a court of equity must come with clean hands.” 6 Am. & Eng. Ency. Law [1st ed.], 704.

<p>1. Foreclosure of Real Estate Mortgage: Deficiency Judgment: Liability: Beneficial Interest in Result of Suit: Application for Appointment of Receiver: Rights of Party. In an action to foreclose a real estate mortgage a defendant who is liable for a deficiency judgment has such a beneficial interest in the result of the suit that he may, if proper grounds exist therefor, apply for and obtain the appointment of a receiver for the purpose of preserving the property and the income therefrom, for the satisfaction of the debts which are a lien thereon.</p> <p>2. :—: Appointment of Receiver. Where mortgaged premises are probably insufficient to satisfy the mortgage debt, and the property- is allowed to deteriorate and taxes to accumulate, these are grounds sufficient to justify the appointment of a receiver to tahe charge of the mortgaged premises, collect the rents and apply them in such manner as to preserve the property for the satisfaction of the debt for which it is pledged.</p> <p>3. Appointment of Receiver: Evidence. Evidence examined, and held sufficient to support the order made for the appointment of a receiver, and the application of the income of the property in his hands for the payment of the delinquent taxes assessed against the same. _ ____ _</p>

<p>Ekbob from tbe district court for Johnson county. Tried below before Stubbs, J.</p>

<p>Mere Retention of a Tiling Lawfully Obtained is Not Conversion. The mere retention of possession of a certificate of stock belonging- to another, which came to the x>ossessor rightfully, does not constitute a conversion of either the stock or certificate.</p>

Error from the district court for Johnson county. Tried below before Stull, J. Frank Irvine, for the insurance company: The interest of the client I represent is such that it can not well permit an adjudication of the questions of law argued in the briefs without an effort to protect its own position. This interest is twofold.

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

Error from the district court for Douglas county. Tried below before Keysor, J. A premium note given for insurance in a foreign company that had not complied Avith the law, is void. Bailor v. Boehm, 21 Nebr., 450; Cincinnati Mutual Health Assurance Co. v. Rosenthal, 55 111., 85; Pennsylvania Co., etc., v. Bciucrle, 33 N. E. Rep. [111.], 166; Rose v. Kimberly & Ciarle Co., 62 N. W. Rep. [Wis.], 526; Seamans v. Temple Co., 63 N. W. Rep. [Mich.], 408.

<p>1. Defense of Usury: Purchaser Bona Fide: Burden of Proof.. Where the defense of usury is established, the burden of proof is upon the plaintiff to show that the note was indorsed before maturity to a purchaser bona fide for value, without notice.</p> <p>2. Evidence. The mere introduction of a promissory note duly indorsed, where the defense of usury is established, is insufficient to prove that plaintiff is an innocent holder for value before maturity, of the paper.</p> <p>3. Defense of Usury Personal. The defense of usury is personal to the maker, and his sureties and privies.</p> <p>4. Purchaser of Equity of Redemption. A purchaser of the equity of redemption, being- neither surety or privy, who-assumes a mortgage on the premises, can not put up the usurious contract of his grantor as a defense.</p> <p>5. Defense of Usury. The defense of usury is available to the mortgagor, nothwithstanding he has sold the mortgaged premises, if made a party to the suit and under the petition a deficiency judgment could be rendered against him.</p> <p>6. Amount-of Recovery. Where the defense of usury is established, the plaintiff is entitled to no interest, and can recover only the actual amount loaned, diminished .by all jiayments of principal and interest paid on the debt.</p> <p>Note.—Where the borrower seeks affirmative relief against a usurious contract, he must first tender the full amount of principal and lawful interest. Biseman v. Gallagher, 24 Nebr., 79, mentioned with approval in Brenner v. Richards, 60 Nebr., 131. But read opinion in Brewster v. Banlc of Ainsworth, 43 Nebr., 79.'—Reporter.</p>

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

<p>Appeal from the district court for Platte county. Heard below before Hollenbeck, J.</p>

<p>Appeal from the district court for Custer county. Heard below before Grimes, J.</p>

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

<p>1. Deed: Delivery. A deed or other similar instrument placed in the hands of a third person for delivery to the grantee when he shall perform some condition, is not legally effective, but is a mere nullity, if delivered by the depositary, or obtained from him in any way, without full eomplanee with the condition specified.</p> <p>2. Evidence: Escrow. Evidence examined, and found to warrant a judgment enjoining the registration of a mortgage-release claimed to have been delivered as an escrow.</p>

<p>1. Subject of Forgery: Form of Instrument. An instrument in tbe following form is tbe subject of forgery: “Mr. Sage: Please let this boy have a single rig, a good one, and oblige. I will bring it back myself. [Signed] George Klinger.”</p> <p>3. Order of Delivery: Writing Obligatory. Sucb instrument is not only an order or request for tbe delivery of chattels over- wbicb Klinger bad no control, but is also a writing obligatory within tbe meaning of section 145 of tbe Criminal Code.</p>

<p>Appeal from the district court for Sarpy county. Heard below before Slabaugh, J.</p>

<p>Error from tbe district court for Lancaster county. Tried below'' before Cornish, J.</p>

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

<p>1. Review: Exception: Waiver. Where no exception is taken to the ruling of the trial eourt in sustaining a demurrer to a petition, and a request is made and leave given to file an amended petition, the ruling of the court on the demurrer can not be reviewed on error proceeding in this court.</p> <p>2. Appeal: Trial Above: Same Issues: New Matter: Payment. On an appeal to the district court of a case tried before a justice of the peace the cause must be tried on the same issues as were tried in the lower court, except as to new matter arising after the first trial, such as payment, etc. S albert v. Roseiibalm, 49 Nebr., 498.</p>

<p>1. Payment: Note or Bill oe Exchange for Prior Debt: Express Agreement. The giving’ and acceptance of an order, bill of exchange or promissory note for a prior indebtedness will not be regarded as payment, unless there be an express agreement between the parties to that effect.</p> <p>2. Pay Check: Third Party: Railroad Official. An order or “pay check” drawn by a paymaster of a railroad company, on the assistant treasurer, in favor of an employee, is not drawn against a third party, but on the party from whom the debt, for which the “pay check” is given, is due.</p> <p>3. -: Payable at Bank: Company and Not Bank Drawee. A “pay ■ check,” given to an employee of a railroad company by the paymaster, drawn on the assistant treasurer, and made payable at different banks therein mentioned, is not a check on either of the banks as by a depositor therein. Such check is made payable at the bank specified and not by the bank, and the company, not the bank, is the drawee.</p> <p>4.-: Lost Pay Check: Forgery: Payment tq Unauthorized Holder: Right of Recovery. Where the payee of a “pay check,” drawn to him or his order, is robbed of it and his indorsement forged thereon, and payment made to an unauthorized holder, the payee may, notwithstanding such payment, recover from the drawee the amount due him, as evidenced by the order.</p> <p>5. Negligence. The drawee sought to escape liability of payment to the payee on the ground of his alleged negligence. Held, first, as a question of fact, a finding in favor of the plaintiff would not be disturbed; and, second, the unlawful possession of the holder of the order, and the receiving payment on the forged indorsement, being the result or fruit of a crime, the defendant could not predicate an estoppel by negligence thereon, unless it appears that the negligence is the proximate' cause of the forgery being taken as genuine.</p>

<p>1. Repeal of Statute: Deeioienct Judgment: Actions Pending: The repeal of sections 847 and 849 of the Code of Civil Procedure (Session Laws, 1897, ch. 95), permitting the recovery .of. deficiency judgments, did not affect actions then pending. Thompson v. West, 59 Nebr., 677.</p> <p>2. Poreclosure: Judgment in Personam: Pending Action. An action brought for the foreclosure of a real estate mortgage and to recover a judgment in personam for any deficiency, in which a decree had been rendered ordering a sale of the property and holding' defendants personally liable for any deficiency, prior to the repeal of the statute, is a “pending action” for the recovery of a personal judgment, within the meaning of section 2, chapter 88, entitled “An act concerning the enacting and repealing of statutes.”</p>

Original application for a writ of habeas corpus to release the relator from commitment to enforce a judgment of filiation.

<p>1 Action Upon Forfeited Recognizance: Obligee Prober Party Plaintiff. An action based upon a forfeited recognizance taken under tbe provisions of section 3, chapter 37, Compiled Statutes, 1899, must be brought in the name of the state, the obligee named in the recognizance.</p> <p>2. Statutory Recognizance Not Bond of Indemnity. A recognizance given under section 3 of chapter 37, Compiled Statutes, 1899, is not a bond of indemnity for the payment of the judgment which may be ultimately recovered in the action.</p> <p>3. Amount of Liability. . The amount of liability on such a recognizance is the penal sum named therein, with interest thereon from the date of the forfeiture.</p>

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

<p>1. Confession of Judgment: Authority oe President and Cashier. The president and cashier of an incorporated state hank are not authorized to enter a confession of judgment against the corporation under section 433 of the Code more than two years after the hank has ceased doing business, upon notes executed by the cashier in the name of the bank after the bank has ceased doing business.</p> <p>2. Judgment Void for Want of Jurisdiction, May Be Attacked Collaterally. When the record shows that no jurisdiction over the defendant has been acquired, the judgment rendered against such defendant is void, and its invalidity may be shown in any action in which it may be called in question. Chicago, B. & Q. B. Co. v. BitchcoeJc County, 60 Nebr., 722.</p>

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

<p>1. Judgment: Pleadings: Evidence: Amendment oe Pleading After Sustaining of Demurrer. A judgment for defendant upon sufficient pleadings and evidence will not be reversed because another judge of the same court had, before the trial, sustained a general demurrer to the answer, the answer having been amended by leave of court after ruling on the demurrer; and this is the rule although no evidence is offered on the trial sustaining the allegations brought into the answer by such amendment.</p> <p>2 Purchase at Sheriff’s Sale by Mortgagee Under Prior Lien: If a mortgagee, or the assignee of a mortgage whose, assignment is recorded, buys the land at sheriff’s sale upon a prior lien, and is credited by the sheriff with the mortgage which he appears to own as disclosed by the record, a part of which is allowed by the sheriff on the purchase price of the land, and such purchaser afterwards quitclaims all interest in the land, this will be equivalent to payment by the mortgagor to the original mortgagee.</p> <p>3. Innocent Purchaser. And in such case an innocent purchaser of the land from the gvantee in said quitclaim deed will take the land free from the lien of the mortgage as against the holder of the note secured by such mortgage, although such holder is an innocent purchaser thereof. W7lipple v. Fowler, 41 Nebr,, 675.</p>

<p>1. Where a Statute Requires a "Witness to an Act, "by Implication He Must Be Disinterested. "Where a statute, in order to secure evidence of some act, requires it to be done in the presence of or attested by a specified number of persons, it is implied that such persons shall be disinterested, and no person having a direct interest in such act is a competent witness thereto.</p> <p>2. Statutory Provisions for Levy of Attachment to be Strictly Pursued. Special statutory provisions respecting the manner in which attachments shall be levied must be strictly pursued, and departure therefrom will render a levy invalid.</p> <p>3. Plaintiff: in Attachment Not a Proper Witness of Levy Thereof. The requirement of section 205 of the Code of Civil Procedure that a sheriff: levying an attachment go to the place where property of the defendant may be found and declare that by virtue of the order he attaches such property at the suit of the plaintiff, in the presence of two residents of the county, is not complied with by a levy and declaration in the presence of two persons one of whom is the plaintiff in the attachment.</p> <p>4. Pleading: Reply. In case no reply to material allegations of new matter in an answer appears in the record, and other issues are disclosed upon which the cause was properly triable, it will not be .presumed that it was tried upon the matters admitted by the pleadings. To bring the case within the exception that no advantage may be taken of want of reply where the trial proceeded upon the theory that a reply had been filed,’ there must be something in the record from which an inference may be. drawn that reply was waived or from which this court may ■know what issues were in fact tried.</p> <p>5. Motion for New Trial: Time. The time within which a motion for . a new trial is required to be filed is to be reckoned from the date of rendition of the decision of the trial court, and not from the date of entry thereof.</p> <p>6.-: When Not Required. No motion for a new trial is necessary where the. error complained of is that the pleadings, taken together, do not support the judgment.</p>

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

<p>1. Assignment of Note and Mortgage by Payee: Default in'Interest Installment: Election of Remedy by Original Payee: His Consequent Liability. When a payee in a note and mortgage has sold and assigned the same, accompanied by his own collateral guaranty of the prompt payment of the interest and of the collection of the principal within two years after it becomes due, and afterwards, upon the happening- of a default on an installment of interest, seeks and obtains the note and mortg-age from his assignee for the purpose of enforcing collection,' and thereuxDon, without consulting the assignee with respect to the methods to be pursued, prosecutes against the debtor remedies of his own selection, he, himself, becomes responsible for any default, negligence or dilatoriness in x>ursuit of the principal and the same will not be imputed to his assignee.</p> <p>2. Contemporaneous Contracts Pertaining to Same Subject-Hatter: Intent Shown by Conduct. In an instance like-the foregoing, contemporaneous contracts between parties, pertaining to the same subject-matter, the nature of the transaction between them and attendant circumstances, and.the meaning in which they, as indicated by their own conduct, appear to have intended the language of the guaranty to be understood, may properly be taken into consideration in interpreting that document. •</p> <p>3. Exhaustion of Remedy: Diligence and Good Faith: There is no inflexible rule that a creditor, holding as collateral to his own demand the guaranty of a third person of its collection, must exhaust his legal remedies against the principal debtor before calling upon the guarantor for payment. What is required of the creditor in such cases is diligence and good faith, and if it is shown by any competent evidence that the principal is insolvent and the creditor has been guilty of no negligence, the guarantor will be required to respond.</p>

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

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

<p>1. Purchaser at Tax Sale Must Pay Treasurer Porthwith. By section 111, article 1, chapter 77, Compiled Statutes, a purchaser of real estate at a tax sale is required forthwith to pay to the treasurer the amount of his bid, and on failure so to do the property shall at once again be offered as if there had been no sale.</p> <p>3. Pailure of Treasurer to Comply With Statute Does Not Invalidate Tax. The failure of the treasurer to observe said section of the statutes by offering the lands for sale will not invalidate the taxes thereon.</p> <p>3. Subrogation. A purchaser of lands at an invalid tax ¡sale is subrogated to the rights of the county.</p> <p>4. Indorsement, Certificate. A tax certificate may be assigned by indorsement.</p> <p>5 Rights, Assignee. An assignee of a tax certificate acquires all the rights thereunder of the assignor.</p>

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

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

<p>1. Claim Against County: Jurisdiction or District Court Derivative. The jurisdiction of the district court to hear and determine actions for the enforcement of claims against counties arising ex contraetu and embraced within the provisions of section 37, chapter 18, article 1, Compiled Statutes, 1899, is derivative and not original.</p> <p>2. Jurisdiction of Board: Record. A claim against a county must be presented, in writing, to the county board before that body has jurisdiction or authority to act upon it.</p> <p>3. -: Subject Matter. The only claim which the county board is, by section 37, chapter 18, article 1, Compiled Statutes, 1899, authorized to examine, adjust and allow, or reject, is one which must be paid by the issuance of a warrant upon the county treasurer. '</p> <p>4. Right of Taxpayer. The right of a taxpayer to test the validity of a claim against the county does not arise until there has been an adjudication by the county board in favor of the claimant.</p> <p>5. Report of County Officer: Approval by County Board is Not a Judicial Order and is Not Appealable. The approval by the „ county board of the report of a county officer made in compliance with the requirements of section 43, chapter 28, Compiled Statutes, 1899, is not a judicial order; it has not the force or conclusiveness of a judgment and is not appealable.</p> <p>6. Injunction by Taxpayer. A taxpayer may maintain a suit to restrain the governing body of a municipal or public corporation from making an illegal disposition of public funds or property.</p> <p>7. Taxpayer Plaintiff in Equitable Action, Corporation Defendant. A taxpayer may, also, commence and prosecute-to judgment an equitable action to enforce, for the benefit of a municipal or public corporation, a right of action which its governing body has refused to enforce. In such case the corporation should be made a party defendant.</p> <p>8. County Board May Pay Judge for Extra-Official Service. A county board may lawfully contract with a county judge to perform extra-official services in connection with the records of his office; and where such services have been performed without any valid contract, the county may accept the product of the judge’s labor and pay him therefor. In such case, a taxpayer can not maintain an equitable action against the county judge on the theory that the money received by him for such services belongs in equity and 'good conscience to the county and should be paid over to the county treasurer.</p>

Error from the district court for Sherman county. Tried below before Sullivan, J. The theory of counsel for the state and of the trial court was that notwithstanding the specific language of the statute mailing consent an element of this form of rape, yet there is a legal fiction under all statutes of this kind, to-wit, that the female is incapable of consent. They relied chiefly on State v. Wright, 25 Nebr., 38.

<p>1. License Granted at Chambers Must Be Filed with Clerk. An order or license, to an administrator to sell real estate of an intestate, granted by a judge sitting- at chambers, must be filed in the office of the clerk of the district court of the county in which letters of administration are issued, before the administrator is empowered and authorized to sell such real estate.</p> <p>S. Administrator Is Prohibited from Being a Purchaser at a Sale. When an administrator is authorized to sell real estate belonging to the estate he represents, he is prohibited by statute, in making a sale, from either directly or indirectly becoming a purchaser, in his individual right, of the property so sold by him as such administrator.</p> <p>3. The Word “Void” in a Statute Construed to Mean “Voidable.” It would seem that the statute declaring a sale so made to be void should be construed to mean voidable, and that such sale may be declared void in a suitable proceeding at the instance of any proper party in interest.</p> <p>4. The Buie of Caveat Emptor Applied to a Subsequent Purchaser of Beal Estate at an Administrator’s Sale. A subsequent purchaser or mortgagee of real estate sold by an administrator is chargeable with notice of what is contained in the public records, evidencing the chain of title through which the party claims, and with all information imparted thereby; and where such records make it apparent that an administrator, in violation of law, was indirectly the purchaser of the property at such sale, and to whom the property was immediately transferred, or where the facts are sufficient to put an ordinarily prudent man on inquiry, such subsequent purchaser or mortgagee is not a good-faith grantee, for value, and without notice of the infirmity in the title held by his grantor.</p> <p>5. Statute of Erauds: Express Tryst: Thomas v. Churchill. “A parol agreement by a grantee, to reeonvey real estate to his grantor, is within the statute of frauds and does not create an express trust in such real estate in favor of the grantor.” Thomas v. Churchill, 48 Nebr., 866. ,</p> <p>6. Beal Estate Conveyed by Husband to Wife Is Presumed to Be an Advancement Passing the Title. Where real estate is conveyed, or procured to be conveyed, by a husband to his wife, without pecuniary consideration on her part, the prima facie presumption of law is that it was intended as a gift or advancement, and that the parties intended that the full and absolute title, both legal and equitable, should pass together by the same conveyance.</p> <p>7. A Besulting Trust Will Hot Be Presumed. The Burden Is Upon the One Claiming Its Existence. A resulting trust will not be declared upon doubtful or uncertain grounds; and the burden is upon the one claiming the existence of the trust to establish the facts upon which it is based by clear and satisfactory evidence.</p> <p>8. Eacts Bo Hot Prove It. Held, That the evidence did not prove facts establishing a resulting trust.</p> <p>9. Subrogation: Lien. The defendant, the Omaha Savings Bank, held to be entitled to be subrogated to the rights of the administrator as a creditor of the estate to the extent of $396, the amount of an incumbrance on real estate belonging to the estate and costs of administration, and to have a lien upon such real estate for said amount.</p>