Volume 62 — Nebraska Reports

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

<p>Dismissal of a Contested Will Case Does Not Oust Court of Jurisdiction to Adjudicate Fee of Guardian Ad Litem. Transcript Without Copy of Will Gives Jurisdiction. Tn a case pending- in the district court on appeal involving the validity of a will in which certain minors were named as devisees a guardian acl litem was appointed for the minor devisees, who, after an arrangement fully securing and protecting- the rights of the minors, aslced leave to withdraw his pleadings, and for the allowance of a reasonable sum as compensation for his services. Leave to withdraw the pleadings was given, and the hearing- on the application for a guardian acl litem fee reserved. The appeal was then dismissed, on motion of the appellee and contestant, on the ground that as to another devisee the will was void for unceriainty. At the following term a hearing- on the application of the guardian ad litem for allowance of compensation was had and an order rendered allowing- a sum, fixed by the court, to be taxed as costs in the case and made a charge ag-ainst the estate of the deceased testator and the funds derived therefrom. Held, The court retained jurisdiction of the case for the purpose of passing- on the application, and that the dismissal of the appeal did not deprive it of jurisdiction to act thereon. Held, also, That the court acquired jurisdiction of the cause on appeal by the filing of a duly certified transcript of the proceeding’s had in the county court containing- the order disallowing- the probate of 1he will, although the transcript did not contain the original will or a copy thereof. .</p>

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

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

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

<p>.. Levy: Outstanding Warrants. When county commissioners have made a levy of nine mills lor general fund purposes, they have no further power to levy an additional tax for payment of outstanding warrants previously issued against the general fund in excess of the statutory limit, unless authorized by a vote of the people of the county.</p> <p>Void. Tax: Injunction. “Where a tax is void, that is, where there is no tax which the plaintiff is in equity bound to pay, he may invoke the aid of a court of equity to protect his rights by an injunction, notwithstanding section 144 of the revenue act. [Compiled Statutes, ch. 77, art. 1.]" Bellevue Improvement Co. v. Village of Bellevue, 39 Nebr., 877, and Touzalin v. City of Omaha, 25 Nebr., 817, followed.</p>

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

<p>1. Receiver Will Not Be Appointed In Ejectment. In an action of ejectment a receiver will not be appointed to take charge of the property, and to collect rents and profits before judgment entered.</p> <p>S. Ejectment: Sheriff's Deed: Burden oe Proof. In an action of ejectment, where plaintiff claims under a sheriff’s deed resulting from a mortgage foreclosure, to which defendant was not a party, and defendant in possession claims under a prior unrecorded deed made by the mortgagor, the burden is upon the plaintiff to show that he took his mortgage for value and without notice, actual or constructive, of defendant’s title; and an instruction placing' the burden on defendant to show want of bona fides and of notice on the part of the plaintiff is prejudicial error.</p> <p>3. Estoppel by Silence; There Must Be Occasion to Speak. To sustain an estoppel because of an omission to speak there must be both the specific opportunity and the apparent duty to speak. The party maintaining silence must have known that some one was relying thereon, and was either acting, or about to act, as he would not have done had the truth been told. Scharman v, Scharman, 38 Nebí-., 39.</p> <p>4. Evidence. Evidence examined, and found insufficient to sustain plaintiff’s plea- of estoppel.</p>

<p>1. Injury by Wrongful Act: Responsibility oe Landlord to Guest. One who goes upon the premises of another, by express or implied invitation of the owner, may recover damages for an injury caused by a failure on the part of such owner to keep the premises in a reasonably safe condition.</p> <p>2. For Death of Intestate, Petition Must Show Pecuniary Injury to Widow or Next of Kin. In an action by an administrator to recover damages for the death of his intestate under chapter 21, Compiled Statutes, the petition must show a pecuniary injury to the widow or next of kin, but as against a general demurrer it is sufficient in that regard to allege that “by reason of the death of the intestate and the loss of the service and society and fellowship of the said intestate the plaintiff has been damaged in the sum of five thousand dollars.”</p> <p>3. Question of Negligence for Jury. In such action, unless the facts are undisputed and are of such a nature that ordinary minds would not differ in their judgment of them, the question of neg-lig-ence must he submitted to the jury.</p> <p>4. Evidence Sufficient. Evidence- examined and found sufficient to warrant the trial court in submitting the question of negligence to the jury.</p> <p>5 Instruction: Death oe Child: Contributory Negligence of Eatiier. In such action for the death of a child, the father as administrator being- plaintiff, it is error to instruct the jury that contributory negligence of the father is no defense.</p>

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

<p>1. Vendee in Default: Right oe Action. A vendee in a contract for the sale of lands, which provides for the forfeiture to the vendor of all payments made as liquidated damages in case of default in any of the payments and for the right of the vendor to rescind the contract on such default, can not, while so in default, maintain an action against the vendor to recover back money paid in part performance of said contract on the ground of a rescission of the contract by the vendor. Éaion v. Bediek, 1 Nebr., 305, distinguished.</p> <p>2. Evidence: Judgment. Evidence, examined, and held to sustain the judgment of the trial court.</p>

<p>1. Creditor’s Bill: Deokee: Interest. Where the decree in a suit in the nature of a creditor’s bill orders a defendant to pay a fund in his hands into court forthwith, interest is chargeable thereon as upon any other judgment, without an express direction to that effect in the decree.</p> <p>2. Claimant Plaintiff: Fund in Hands oe Defendant: Decree: Appeal: Estoppel. A defendant in a suit to which all the claimants of a fund in his hands are parties, who, being ordered by the decree to pay the fund into court, excepts to such decree and participates in an appeal therefrom by one of the claimants, can not be heard to claim, after affirmance of the decree, that he was a mere stakeholder and therefore is not chargeable with interest.</p> <p>3. Decree: Execution. Execution is a proper process to enforce a decree directing a defendant to pay moneys in his hands into court.</p>

Error from the district court for Lancaster county. Tried below before Holmes, J. William A. Lane was suspended and his certificate became null and void by reason of his own failure and default. No act was necessary on the part of the order or of its officers as a condition precedent. Supreme Lodge v. Keener, 25 S. W. Rep. [Tex.], 1084; Borgraefe v. Supreme Lodge, 22 Mo. App., 127; Grand Lodge v. Jesse, 50 111. App., 101.

<p>Representations to Mercantile Agency: Fraud: Evidence. Where it is sought to establish fraud in representations made to a mercantile agency upon whose report credit was extended to a merchant, the evidence must connect the merchant with making the report upon which credit was given.</p>

<p>Fraud: Poor Judgment: Trade: Debtor and Creditor: Court Can Aeeord No Relibe. The courts will use their efforts to protecl a creditor against the fraudulent acts of his debtor, but as against his poor judgment and unfortunate trades they can afford no relief.</p>

<p>1. Construction of Will: German Language: Life Estate. A will consisting of a single sentence in the German language of which, the following is, as nearly as possible, a literal translation into English, omitting names, “I do will and bequeath to my wife all my property, she has entire control (sie habt zu verfuegen) over the same after my death as long' as she lives,” devises a life estate only and the reversion, at the death of the testator, vests in his heir or heirs at law.</p> <p>3. Devise by Life Tenant: Fee: Equitable Lien. A will by a tenant for life only, which purports to devise the fee of the lands which are the subject of the tenancy, does not operate as a bequest of an equitable lien upon the reversion in behalf of the testator because of his having, paid off an incumbrance upon the premises existing at or prior to the creation of the life estate.</p> <p>3. Life Tenant: Betterments: Reversion: Occupying Claimant. Ordinarily, a life tenant who makes betterments upon the estate is not entitled to be reimbursed for the same by the reversioners or out of the reversion, but in case he should be so entitled, his right will not pass by his will purporting to devise the lands in fee, and the “Occupying- Claimant’s Act” will not, in such case, be available to the devisee with respect to betterments made before the termination of the life estate.</p> <p>4. Action in Partition: Defendant in Possession: Waiver. When, in an action for a partition of lands, the defendant in possession claims title to the premises adversely to the plaintiff, he will, by waiving a jury and participating- without objection in the trial of all the issues in the cause before the court alone, also waive any objection he might otherwise have had on account of irregularity in the procedure in this respect.</p>

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

Original jurisdiction. Proceeding to recover certain penalties claimed to be due under Maximum Freight Law. Motion by the attorney general to dismiss on the ground that he had been enjoined by the federal court.

<p>1. A Judgment Will Not Be Reversed for the Admission of Testimony Which Has Been Withdrawn From Jury. A reversal of a judgment can not be based upon the admission of irrelevant testimony, when such testimony has been wholly withdrawn from the consideration of the jury by the charge of the court.</p> <p>2. Instructions, Conflicting, Misleading, Erroneous. Instructions that are conflicting or misleading are erroneous.</p>

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

<p>1. Physician Can Not Sell or Keep for Sale Liquor Without License. A physician is forbidden, by section 20, chapter 50, Compiled Statutes, from selling or keeping for sale intoxicating liquors, unless he has a license or permit so to do.</p> <p>2. Keeping Liquor for Home Consumption Does Not Give Right to Sell. The mere fact that one keeps intoxicating- liquors for home consumption, will not authorize him to sell or keep for sale intoxicating liquors without a license' or permit.</p> <p>3. Negative Averments Only Necessary as to Descriptio Delicti. The rule is that only such exceptions and provisions of a statute are required to be neg-atived in an information as are part of the description of the offense.</p> <p>4. Bill of Exceptions: Evidence on Motion eor New Trial. Evidence adduced on the hearing of a motion for a new trial, to be available on review, must be incorporated in a bill of exceptions.</p> <p>Note.— Chapter 50 of the Compiled Statutes is known as the Slocumb Law. The real author of that law was John H. Ames.— Reporter.</p>

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

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

<p>1. Creditor’s Bill: General Denial: Evidence. In an action by creditors to set aside a conveyance of real estate alleged to have been made in fraud of théir rights, the defendant may, under a g'eneral denial, give evidence of any fact tending to disprove the charge of fraud.</p> <p>2. Estoppel: Unsecured Creditor. A party who pleads facts which would, if proved, preclude the assertion by his adversary of an equitable title to, or lien upon, the property in litigation, is not entitled, under such plea, to show that the party against whom the estoppel is alleg'ed, is precluded from asserting the rights of an unsecured creditor.</p> <p>3. -: Error Not Prejudicial. A party who pleads an estoppel is not prejudiced by any ruling of the court in relation thereto, if the facts sought to be suppressed are not asserted at the trial nor permitted to influence, in any way, the decision complained of.</p> <p>4. Withdrawal of Former Opinion. What was said in the former opinion (Plummer, Perry <& Go. v. Bolvman, 61 Nebr., 61) in regard to pleading an estoppel, not being necessary to a decision of the case, is now withdrawn; and the question is left open for future determination.</p>

<p>1. Negligence: Immaterial Allegation: Representation. In an action to recover damages for negligence in threshing grain, an averment that the thresher represented he had a good machine and could, and would, do a good job, is immaterial and need not be established by proof.</p> <p>2. Labor: Consideration: Tools: Implied Representations. One who undertakes for a consideration to do work requiring spe- . cial skill, impliedly represents that he possesses, and will exercise, such reasonable degree of skill as the nature of the service may require; and if he is to furnish his own tools, implements or machinery, there is an implied representation as to their fitness for the use to which they are to be put.</p> <p>3. Instruction. An instruction which, without warrant, assumes the possible existence of a material fact, is erroneous.</p>

<p>1. General Denial Being Plea of Hon-Assumpsit, Does Hot Traverse Allegation of Hon-Payment. In an action upon a promissory note, or other contract for the unconditional payment of money, a general denial, being regarded as the Code equivalent of the common-law plea of non-assumpsit, does not put the allegation of non-payment in issue.</p> <p>2. Under General Denial, Proof of Payment Hot Permissible. In actions upon contract for the unconditional payment of money it is not permissible, under a general denial, to prove payment, even though made in accordance with the terms of the contract.</p> <p>3. In Suit on Official Bond, a General Denial Does Hot Relieve Plaintiff of Proving Injury. But in an action on an official, bond, or other bond of indemnity, the plaintiff is not, by an answer ' consisting of a general denial, relieved of the necessity of proving the loss or injury out of which his right of action arose.</p> <p>4. Tender of Proof of Payment Hot Implied Admission of Actionable Denial. An offer to prove payment is not in every case, an implied admission that the plaintiff once had an actionable demand; its purpose may be to prove that a right of action never existed.</p> <p>5. Payment Offered to Disprove Official Misconduct Hot Hew Matter. Payment is not new matter, within the meaning of section 99 of the Code of Civil Procedure, when it is offered to disprove a charge of official misconduct.</p>

<p>1. Petition Sufficient. Petition examined, and held to state facts sufficient to constitute a cause of action.</p> <p>2. Review of Error Upon Appeal. On appeal to this court of an action in equity tried in the district court, alleged errors in the admission and rejection of evidence by the trial court can not be reviewed. The correctness of the judgment or decree appealed from will be determined from the record as presented by the appeal.</p> <p>3. Allegation of Pact in Reply Denied by Code. An allegation of fact in a reply is taken as denied by force of the Civil Code; and when the allegation is not admitted and no x>roof in relation thereto is in the record, the fact alleg-ed can not be said to exist.</p> <p>4. Administratrix of-Vendor: Her Right to Prosecute. The administratrix of a deceased vendor to a contract for .the sale of real estate is authorized by the provisions of section 323 et seq., • chapter 23, Compiled Statutes, 1899, to prosecute an action against a vendee for specific performance of the contract and obtain authority to execute according- to the terms of such contract a conveyance of the premises of the deceased vendor.</p> <p>5. Evidence: Pinding oe Trial Court. Evidence examined, and held to support the findings of the trial court, on the questions of fact put in issue by the pleadings.</p>

Error from the district court for Cedar county. Tried below before Evans, J. This action was originally brought by John Lammers, deceased. It is admitted by defendant that he bought a tract of land of said John Lammers in the year 1886, and that he paid for it by giving notes in the sum of $2,200; but that, instead of giving three notes, as was contended by Lammers, he gave one for $1,000 and one for $1,200, at nine per cent., due March, 1891.

<p>United States Homestead: Mortgage Before Final Proof No Lien, Where Proof Is Made by Heirs. A homestead claimant, after malting- a homestead entry and occupying- public land under the United States homestead laws, executed a mortgage on the land thus occupied, and, before full compliance with the law entitling him to make final proof and obtain title thereto, died. Held, As against his heirs at law who perfected the enb-y, made the required final proof of settlement and cultivation and obtained from the government title to such land, that tbc mortgage was ineffectual to create any valid lien thereon.</p>

<p>1. Tender of Proof. In a criminal trial, as well as civil, when to a question in direct examination an objection is interposed by the adverse party and sustained, in order to present the ruling to this court for review, there must be an offer of proof of the facts sought to be put in evidence by the question to which the answer was excluded.</p> <p>2. Expert Witness: Exhibits. When physicians called as experts in a criminal trial for murder, in testifying- to the manner and cause of death, refer to and use the skull of the deceased and a photograph thereof in explanation and as a part of their testimony, it is not erroneous to admit the exhibits as evidence in the case.</p> <p>3. Instruction Defining Murder in First Degree Not Erroneous. Instructions copied in the opinion defining murder in the first degree examined, and held, the giving- of the same was not erroneous.</p> <p>4. Not Error to Refer Jury to Instruction Formerly Given. When a point arising in a criminal trial has been covered in an instruction to the jury, it is not error to refer to such instruction as answering an inquiry submitted by the jury during their deliberations, in place of giving another instruction on the same point, although another instruction mig-ht properly have been given.</p> <p>5. All Phases of the Case Need Not Be Embodied in One Instruction. It is not required that all phases of the’ case be covered by one instruction. An instruction referring only to murder in the first deg-ree may be given without objection when other instructions properly advise the jury as to the lesser degrees of the crime charged in the information and also the defense interposed by the plea of not guilty.</p> <p>6. Instruction on Reasonable Doubt Held Not Erroneous. An instruction on the subject of reasonable doubt in which the jury were told, “You are not at liberty to disbelieve as jurors, if from the evidence you believe as men; your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered,” held not erroneous.</p> <p>7. Instruction of General Application Not Erroneous. An instruction of general application regarding the credibility of witnesses, otherwise proper and correct, is not open to objection because the defendant who testified in his own behalf was the only witness having a direct legal interest in the result of the trial.</p> <p>8. Word “Impartial” Does Hot Render Instruction Erroneous. The use of the word “impartial” in an instruction when applied to the consideration of the evidence by the jury does not render the instruction erroneous.</p> <p>9. Instruction Properly Refused. An instruction, the substance of which is copied in the opinion, requested by the defendant, held properly refused.</p> <p>10. Murder: Irresistible Passion: Cooling Time. When one theory of the defense is that the homicide was committed under the impulse of irresistible passion provoked by the deceased, the true inquiry is whether the suspension of reason, if shown to exist, arising' from sudden passion, continued from the time of provocation till the instant of the act producing death took place; and if from any circumstance shown in evidence it appears that the party reflected and deliberated, or if in legal presumption there was time or opportunity for cooling, the provocation can not be considered by the jury in arriving at a verdict.</p> <p>11. Evidence: Murder in First Degree. Evidence examined, and held sufficient to support a verdict of murder in the first degree.</p> <p>13. Statement of Juror Impeaching Verdict: Statement by Third Party: Hearsay. Statements of a juror after trial as to the manner of arriving- at a verdict ’ during the deliberations of the jury can not be testified to by others for the purpose of vitiating the verdict. Such testimony is incompetent as hearsay.</p> <p>13. -: Unsworn Statement Insueeioif.nt to Impeaoii. A statement made by a juror after trial, and when not under oath, tending to impeach his verdict is insufficient to rebut and overcome the presumption arising from the record that the verdict returned under oath and assented to by the jury was the result of the deliberation of the jury on the evidence in the case.</p> <p>14. Impeachment of Verdict by Juror. A juror can not be heard to impeach a verdict by him returned as to any matter essentially inhering in such verdict.</p> <p>Note. — Murder is malicious homicide. From certain facts malice is to be inf ex-red; lxex-e these facts exist; hence malice is to be infex-x-ed. Wharton, Homicide, p. 27, ch. 3, par. 39. ■ Foi- a full discussion of murder in the first degree, under the statute afterwards adopted in this state, see Robbins v. State, S Ohio St., 131. But see Morgan v. State, 51 Nebr., 672. As to homicide committed in anger being- murdex- in the first degree, see Green v. Commonwealth, 83 Pa. St., 75. — Reporter.</p>

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

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

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

<p>Error from the district court for Jefferson county. Tried beloiv before Letton, J.</p>

Error from tbe district court of Lancaster county. Tried below before Hall, J. Holcomb, J., dissenting. The active concealment of a material fact has the same effect as an express false representation. Larson, Contracts, 227. In setting aside a transaction as fraudulent, inadequacy of price is a strong circumstance. That suppressio veri is equal to suggestio falsi, is a principle which will prevail. In the absence of a satisfactory reason, it is a badge of fraud.

Error from tbe district court for Holt county. Tried below before Kinkaid, J. This cause was taken to tbe supreme court of tbe United States, on writ of error issued by Justice Brewer, October 14, 1901. A reversal is claimed because, as alleged, tbe decision is contrary to tbe doctrine announced in Gulf, O. & /S'. F. II. Go. v. Filis, 165 U. S., 150. — Reporter.

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

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

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

<p>Injunction Will Lie to Prevent the Transfer of Stock in Case Stated. 'The transfer of shares of stock of a corporation may be enjoined at the suit of the owner when a bank of another state has wrongfully received the certificates of stock in pledg-e from one not the owner thereof, and not authorized to so pledge the same, and is attempting- to have the stock transferred to the bank as the owner thereof upon the books of the corporation.</p>

<p>1. Judgment Insufficient as to Part of Defendants Reversed as to Them. There being no evidence to supx>ort the findings and .judgment as to a part of the defendants, the judgment is reversed as to them.</p> <p>2. Municipal Corporation: Irregular Judgment: But Will Resist Collateral Attack. If suit is begun against a municipal corporation by filing- petition and issuing- and service o-f summons, it is irregular to enter a judgment against defendant without first entering- its default. But judgment, when so entered, after answer day, upon the, written stixmlation of defendant’s attorne3r, will not be void when collaterally attacked.</p> <p>3. Execution: Mandamus. Section 483 of the Code applies to judgments against municix>al corporailons; hut proceedings by man-damns, if in good faith, to compel a levy and collection of taxes to pay the judgment will he, equivalent to issuing- an execution on judgment ag-aiust an individual.</p> <p>4. Dormant Judgment: Revivor: Qu.ere. Whether levy and collection of taxes by the proper officers and paying the same upon the judgment will prevent tlie same from becoming dormant, qwcore.</p> <p>5. -. It no tax is levied aud no p:>roceediiigs begun to compel such levy, a judgment against a municipal corporation will become dormant in five years.</p> <p>C----: Statutory Htsvivor. After a judgment against a municipal corporation lias become dormant the levy of a tax' and payment on such judgment will not revive the same; the statutory method of revivor is exclusive.</p>

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

<p>Injunction Will Not Lie to Restrain Opening of Road merely Because Appeal Is Pending, on Damages. AVhen a board of county commissioners have established a section-line road and have made an award of damages to the claimants for damages by reason of the opening of such road, and the amount of the damages so awarded has been paid by the petitioners into the road fund of the district in which such highway is located, and such sum has been tendered to the claimants, and the claimants have refused to accept such damages and have appealed from the award so made, injunction will not lie at the suit of such claimants to restrain the opening- of such road.</p>

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

<p>1. Lease of Part of Building. A lease of a part of a building passes with, it as incident thereto everything necessarily used with, or reasonably necessary to, the enjoyment of the part demised.</p> <p>2.--: Easement: Stairway: Entryway. Where rooms in the upper story of a building are leased to tenants for office purposes, a right, in the nature of an easement, to the use of the entryway and stairway leading to said upper story, by such tenants and those having business with them, arises by implication.</p> <p>3. Obstruction of Stairway, Entryway, Street or Sidewalk. A tenant of the lower floor of such building has no right, either by reason of his lease, or by reason of authorization of the landlord, to obstruct such stairway or the entryway or street or sidewalk space immediately leading' thereto, so as to prevent or impede access to such rooms on the upper floor.</p> <p>4. Nuisance: Injunction. Such obstruction or attempted obstruction, interfering with or impairing the easement of the tenants on the upper floor, is in the nature of a nuisance, and may .be enjoined.</p> <p>5. Concealment of Sign. Where by the terms of their tenancy such tenants upon the upper floors are given the privilege of using a portion of such'building about or adjacent to the stairway for signs, a tenant of the lower floor has no right to cover up . and conceal such signs either by virtue of his tenancy or by authority from the landlord.</p> <p>e. Vacating Decree: Abuse of Discretion: Mistake of Counsel. Where a cause is regularly set for trial and heard in its order, the district court does not abuse its discretion in refusing to set aside a decree rendered in the absence of one of the parties, upon a showing that counsel were present when the cause was set down for trial, but did not hear the court’s announcement to that effect.</p>

Error from the district court for Douglas county. Tried ' below before Scott, J. George H. Boggs died on June 1, 1895, in the city of Omaha. He left surviving a tvife, Ida M. Boggs, but no children. The plaintiffs in error are brothers, sisters, nieces and nephews of the testator.

<p>1. Action on Attachment Bond: Plea ov IIes Judicata: Demurrer. Alter the dissolution of an attachment, and after a trial of the case in which the writ was issued, in which it was found that the plaintiff had no cause of action, the defendant, commenced an action against the attaching- plaintiff and the surety on the bond, claiming- damages in the sum of $3,400, for maliciously attaching- his property. This action was removed to the circuit court of the United States, where, on a trial, apparently in the absence of the plaintiff therein, a verdict was returned for the defendants and judgment for costs against the plaintiff given. Thereafter the defendant in the attachment proceeding commenced a second action against thee surety .in the attachment bond to recover the penalty of said bond. In his answer the surety pleaded the former suit and judgment as a bar to the second aption. Held. That a demurrer to said plea was properly sustained.</p> <p>2. -: Election of Remedies. In tbe same case tbe surety pleaded tbe commencement of tbe first action by tbe plaintiff as an election of remedies on bis part, and a bar to tbe second action because -of sueb election. Held, Tbat tbe suit for malicious attachment and tbe action on tbe bond were not inconsistent remedies, and tbat tbe doctrine of election did not apply.</p> <p>3. Instruction: Review. Where tbe court instructs tbe jury to retm-n a verdict in favor of .one party to an action, without submitting-to their determination any issue in the case, this court will not review .the ruling of tbe trial court on tbe admission of evidence in tbe progress of tbe trial.</p>

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

<p>Where Indian Lands Have Been Leased and Sublet, a Note Given by the Last Lessee for Rent Is Void Under the U. S. Statute. The Flournoy Live-Stock & Real-Estate Company held a lease from the Indian owners for a larg-e quantity of lands lying within the limits of the Winnebago and Omaha Indian reservation; the company subleased a portion of this land to Larson, taking his note for the rent agreed upon. A statute of the United States relating to these lands provided, “and if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching- the same, such conveyance and contract shall be absolutely null and void.” Held, That the note given for rent was a part of the contract of subleasing made between the company and Larson; that the statute above quoted made it null and void, and that it could not be enforced against Larson even by a bona-fide holder.</p>

<p>1. Personal Injury: Contributory Negligence: Instruction. The plaintiff, a child of six years, in crossing' the defendant’s tracks on Nicholas street, in the city of Omaha, was run over by an engine operated by the defendant and one of her legs was cut oft" above the ankle. The court instructed the jury as follows: “If, in this case, you find from the evidence that Lena Geist was of sufficient age, intelligence and experience to know and realize the danger of being where she was, and of attempting to cross in front of an approaching train, then she would be chargeable with contributory negligence.” The evidence was undisputed that the track over which the engine approached the crossing was obstructed from the plaintiff’s view by the box cars standing' on another track, and the plaintiff’s evidence tended to show that no bell or whistle was sounded, or other signal given, and that the plaintiff did not know of the approach of- the engine until she had reached the middle of the 'track where the accident occurred. Held, That the instruction was erroneous, in that it excluded from the consideration of the jury all evidence that the plaintiff was without fault in attempting to cross the track, and that she was lured into her dangerous position by the negligence of the defendant in failing- to give any warning by bell, whistle or otherwise that the engine was approaching the street crossing-, and that her view of the approaching engine was obstructed by the box cars.</p> <p>2. -: -: -. The defendant’s evidence tended to show that when the plaintiff discovered the engine, she had not yef reached the track of the defendant where the accident occurred, and that if she had remained in the position she occupied, she would not have been injured. On this phase of the case the court instructed as follows: “In this case, if you find from the evidence that Lena Geist knew of the approach of this engine in time to avoid a collision, and at the time she obtained this knowledge she was in a position of safety if she had remained there, then it is immaterial whether warnings or signals of the approach of the train were given or not.” Held, Error, as it excluded from the consideration of the jury the question of whether she occupied a position of apparent danger when she first discovered the engine, and that it required her to remain in a position of apparent danger, if such was the case, regardless of what persons of her age, intelligence and experience would ordinarily do under the same circumstances.</p> <p>3.--:--: -. The court refused an instruction asked by tlie plaintiff, to the effect that if the jury found that no signal was given, and that, under all the circumstances of the case, it was negligence in the defendant to run its engine onto the crossing at Nicholas street without .signaling its approach by bell or whistle, and that such negligence was the proximate cause of the injury, and that the plaintiff was damaged thereby, then she should recover, unless they further found that by her own negligence she contributed to the injury. Held, A proper instruction, and error to refuse it.</p>

<p>1. Action on Official Bond: Replevin Bond: Insufficient Security. In an action ag-ainst an officer for taking insufficient security upon a bond in replevin, in a suit pending before a justice of the peace, the plaintiff need not allege in his petition, although he may be required to prove upon the trial, that he has prosecuted the sureties upon the bond to judgment and execution without obtaining satisfaction.</p> <p>2. Officer Taking Security Becomes Guarantor of Its Sufficiency at Taking: Petition: Allegation. An officer who takes security upon a replevin bond in an action pending before a justice of the peace guarantees absolutely that the surety is sufficient at the time he is accepted. In an action upon the bond of such officer tor damages for taking insufficient security it is not necessary to allege that in so doing the defendant acted wrongfully or negligently, and it is not a defense that the latter • acted in good faith and with the exercise ot diligence.</p> <p>3. Action on Official Bond: Taking Insufficient Security on Replevin Bond: Judgment in Replevin: Return Nulla Bona: J urisdiction of Justice Immaterial. When, in an action on the bond of an officer for taking insufficient security upon a replevin bond in a suit pending before a justice of the peace, it has been proved that the sureties upon the latter bond have been prosecuted to judgment and execution, without obtaining satisfaction, and that the judgment remains in force and unimpeaehed by the parties to it, it is immaterial whether the justice did or did not exceed his jurisdiction in rendering, judgment in the replevin suit.</p> <p>4. Duty of Legislature to Express and of the Courts to Interpret the Public Will. The function of expressing the public will is intrusted to the legislature, but not to the courts, and to this principle it is the duty of the latter to give practical force as well as theoretical recognition.</p>

<p>1. Contract by Ordinance: Interest on Bonds: Certificate of Clerk: Ultra Vires. A city, by ordinance, contracted with a corporation that in consideration that the latter should construct and maintain within the city a system of water-works, the city would pay to it hydrant rentals to the amount of $3,000 per annum, and that in case the company should issue mortgage bonds upon its works, the city clerk should indorse upon each bond a certificate to the effect that in lieu of such rentals the city would pay to the trustee or trustees named in. the instruments annual interest upon said bonds to the amount aforesaid. The company issued seventy-five such bonds for $1,000 each, payable twenty-five years after date, with semi-annual interest at the rate of six per cent, per annum, evidenced by interest coupons attached, and the clerk indorsed upon each of said bonds a certificate that the city would pay the interest thereon as it should mature. Eeld, That the certificate was in excess of the authority purported by the ordinance to be conferred upon the clerk and was void.</p> <p>2. An Ordinance Against Statute Void. In the case above stated, the, city reserved the right to purchase the works, and agreed, in such case, to assume whatever outstanding bonded debt should, at the time of the purchase, exist thereon, and shortly after ihe completion of the works did, in fact, purchase them. The statute provided that no bonded debt should be incurred by the city for the construction or purchase of a system of waterworks unless the same should first be authorized by a popular vote. No such vote was taken, and the guaranty contemplated by the ordinance - would, if valid, have bound the city for the payment of' a fixed sum annually for hydrant rentals, irrespective of a statute which limited such expenditures to the proceeds of a specified annual levy on the taxable property of the city as disclosed by the public assessment records. ' Eeld, That the provisions of the ordinance with respect to the assumption of the bonded debt and the guaranty of interest payments thereon was in violation of the statute and void.</p>

<p>1. Bank Check: Agreement of Payee with Forwarding Bank. If the payee of a check drawn upon a bank in this state indorses and delivers it to a bank in a neighboring' town for collection, and accompanies the act with a request that it be not immediately presented for payment and agrees that it may be sent for collection through, a distant bank situate outside the state, the indorsee will not be liable for the consequences of the delay necessarily incident to the course adopted, nor for the default or negligence of the bank chosen to make presentment for payment.</p> <p>2. -: Liability op Indorsee : Sending Check to Distant Bank. If the payee of a cheek drawn upon a bank in this state indorses it to a bank in a neighboring town for collection and the latter, without the knowledge or consent of the payee, sends it for collection through a distant bank situate outside the state, thereby consuming three days for making a presentment for r payment which might have been made in one day, the indorsee will be liable for the consequences of such delay and for any default or negligence of the bank chosen to make the collection.</p>

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

Error from the district court for Sarpy county. Tried below before Scott, J. On challenge to bill of exceptions, Wells, on Questions of Law & Fact, sec. 826; Cox v. Chicago, R. I. A P. R. Go., 51 Pac. Rep. [Kan.], 901; 3 Ency. PI. & Pr„ 118; Atterberry v. Railway Go., 18 Ore., 85. On contributory negligence, Towner v. Missouri P. R. Go., 52 Mo. App., 617. ‘

<p>1. Claim. Against Estate: Objections: Proof. Under objections to a claim presented for allowance to the probate court, (1) that deceased did not, at the time of his death, owe claimant anything whatever, and (3) that the estate did not owe claimant anything- at the time the objection was filed, the administrator may prove payment, release, fraud or any other fact which will show that claimant has no valid claim against the estate.</p> <p>'2. Appeal: Plea of Fraud: Issue. And, on an appeal from an order allowing or disallowing such claim, an answer charging that plaintiff’s claim originated in and grew out of a fraudulent transacton, does not raise a new issue in the appellate court.</p> <p>3. Subsequent Creditors Can Hot Attack Fraudulent Conveyance. Section 17, chapter 33, Compiled Statutes, 1899, makes conveyances and assignments in fraud of the rights of creditors void and of no effect as against persons who have been hindered, delayed or defrauded by such conveyance or assignment. Subsequent creditors who have not been in any way prejudiced by a fraudulent transfer can assert no rights under this section.</p> <p>4. Fraudulent Transfer for Use of Vendor Is Void. But where a fraudulent transfer of property, or choses in action, is made in trust for the use and benefit of the person making- the same, it is void both as to existing and subsequent creditors.</p> <p>5. Subsequent Sale for Satisfaction Valid. A debtor who has made a conveyance of property which is void under either section 7 or 17, chapter 33, Compiled Statutes, 1899, may afterwards transfer the title and ownership ‘of such property to a creditor who is willing to receive it in satisfaction of his claim.</p>

<p>1. Bastardy Proceeding: Undue Intimacy Between Prosecutrix and Third Party Irrelevant. In a proceeding under the bastardy act, evidence of a minor to the effect that there existed an undue intimacy between the complainant and a man other than the defendant at or about the time the illegitimate child was begotten, is not relevant to the issue. •</p> <p>2. Sexual Intercourse With Others Than Defendant Competent. In prosecutions for bastardy, evidence is admissible, to show that the complainant had sexual intercourse with men other than the defendant about the time she became pregnant.</p> <p>3. Judicial Cognizance: Period oe Gestation. Courts do not take judicial notice of the fact that the possible period of gestation exceeds ten calendar months.</p> <p>4. Exclusion of Evidence Proper at Time Bars Further Inquiry. In reviewing- the rulings of the trial court excluding- evidence, this court will only inquire whether the evidence was properly rejected at the time it was offered.</p> <p>5. Refusal to Receive Evidence Not Covered by Question No Error. A refusal to receive evidence embraced within an offer to prove, hut not covered by any question propounded to ’ the witness upon the stand, is not error.</p> <p>6. Instruction on Burden of Proof and Credibility of Witness Need Not Direct to All Matters. The, giving of an instruction with respect to the burden of proof and the credibility of witnesses is not erroneous because it fails to direct the attention of the jury to all the matters proper to be considered in determining the questions submitted to them.</p> <p>7. Evidence. Evidence examined, and found io sustain the verdict.</p> <p>Note. — Period of gestation. Nicholas, Adulterine Bastardy, 212, 213; Taylor, Medical Jurisprudence [Reese’s 8th Am. and 10th London ed.], pp. 683-701; Wharton & Stille, Medical Jurisprudence [4th ed.], vol. III., ch. III., pars. 40-43; Le Merchant, Report of Gardner Case; Tidy, Legal Medicine, Bart II., pp. 65-70; Rodgers, Domestic Relations, 601; Lyall, Medical Evidence, p. 8; Greenleaf, Evidence [Lewis’s ed.], vol. II., par. 152 and authorities cited in note 2; Hohl, Annals of Hygiene, vol. II., p. 153; State v. Bead, 45-la., 469; Ziveifel v. State, 27 Wis., 396; Etimiphreg v. State, 47 N. W. Rep. [Wis.], S36; Beers v. Jaelcman, 103 Mass., 192; O’Brien v. State, 14 Ind., 469; Benham v. State, 91 Ind., 82; State v. Smith, 61 la., 538; Masters v. Marsh, 19 Nebr., 458, 461; Sang v. Beers, 20 Nebr., 365, 373; Oleson v. Peterson, 33 Nebr., 358, 365; Warrington v. Barfield, 30 La. Ann., 1297. — Reporter.</p>

<p>1. Deputy Clerk of Court May Swear Prosecutor to Information. A deputy clerk of the district court has authority to swear the county attorney to an information in a criminal case.</p> <p>2. If Answer to Improper Question Has No Prejudicial Tendency, Not Reversible Error. The overruling of an objection to an improper question propounded to one of the witnesses for the defendant in a criminal case is not reversible error if the answer of the witness has no prejudicial tendency.</p> <p>3. Trial Judge May Cross-Examine Witness for Accused. The trial judg'e may cross-examine witnesses for the accused, in a criminal case, in order to prevent a miscarriage, of justice, but the right to do so should be exercised sparingly and with great discretion.</p> <p>4. Reasonable Doubt. The court as part of its charge gave to the jury an instruction on the subject of reasonable doubt almost identical willi the one set out in the fifth point of the syllabus to Willis v. State, 43 Nebr., 102. Held, Not error.</p> <p>5. Where Defense Is Alibi, Presence of Accused at Locus in Quo Must Be Established Beyond Reasonable Doubt. An instruction in which the court said to the jury that the evidence tended to show that the defendant, was, when the crime was being committed, at such a distant and different place that he could not have participated in its commission, and that they should acquit unless the evidence satisfied them beyond a reasonable doubt that he was present when the crime was committed, held, not errar.</p>

<p>Appeal from the district court for Lancaster county. Heard below before Holmes, J.</p> <p>Application, on rehearing being allowed, by administrator for order of revivor.</p>

<p>1. Judgment Confessed to Defraud Creditors, Voidable, Not Void. Judgment, confessed for the purpose and with tlie intent' to defraud creditors of the judgment debtor, the court having jurisdiction over the parties and the subject-matter, is not absolutely void, but voidable only at the instance of the person or persons attempted to be defrauded, in a proper proceeding brought for the purpose of avoiding such judgment.</p> <p>2. Execution Issued on Such Judgment Can Not Be Treated as a Nullity. An execution issued on such judgment for like purpose, and levied by an executive officer on the property of the judgment debtor, can not he treated as a mere nullity by another officer holding process against the judgment debtor Issued out of a different court and the possession of the officer making the first levy forcibly wrested from him for the purpose of levying thereon the process subsequently issued and held by such officer.</p> <p>3. Property Taken Under Such Execution In Custodia Legis. A legal levy on personal property of a writ of execution valid on its face issued on a judgment voidable only and not void and talcing possession of the property levied on by the officer serving the writ places the property vn custodia legis.</p> <p>4. Test of Liability Is: Was Officer Trespasser? The test of the validity of a levy upon personal property is whether or not the acts of the officers under his writ have been such as would make him liable as trespasser but for the protection afforded by such writ. Gh'and Island Banhmg Co. t>. Costello, 45 Nebr., 119.</p> <p>5. Constable Acquires Special Property by Levy. When a constable has levied on personal property under a valid process and taken the property in his possession he has a special property therein which can not be interfered with or taken away by another officer holding another process ag-ainst the same debtor.</p> <p>6. Judgment Described in First Paragraph, May Be Vacated. When property has been levied upon under an execution issued on a judgment confessed for the purpose of defrauding the creditors of the judgment debtor such levy may be vacated and held for naught as against the creditors thus attempted to be defrauded in any proper proceeding brought for that purpose.</p> <p>7. Property Held Under Such Levy, Not Subject to Lawful Second Levy. When personal property has been legally levied upon, during- the existence of the lien created thereby, it is not subject to a lawful second levy by another officer under a different process, and when a subsequent levy by another officer is accomplished by force or fraudulent means or by an unauthorized procedure such levy is illegal and void.</p> <p>S. Officer May Make Successive Levies or May Be Garnished. When personal property has been lawfully seized under mesne or final process successive levies on the same property may be made thereon by the same officer; or by garnishment proceedings such officer may be charged as garnishee and the property bound from the time of the service of summons in garnishment on him.</p> <p>9. Proceeding Binds Garnishee From Service of Notice. Proceedings in garnishment bind the garnishee from the time of the service of the notice, and the property in his hands is not thereafter subject to levy and sale on process thereafter issued against the debtor during the continuance of the attachment. North-field Knife Co. v. Bhapleigh, 24 Nebr., 635.</p>

Error from the district court for Nemaha county. Tried below before Letton, J. The defendant was prosecuted in the district court of Nemaha county under an indictment for murder in the first degree, for the killing of one William Smelser on the night of February 9, 1894. At the time of the tragedy the defendant ivas a resident of South Omaha, where he had resided about three years, and at the date named was one of the police force of that city.

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

Original action in the nature of a quo warranto to oust the respondent from the office of tax commissioner of the city of Lincoln.

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

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

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

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

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

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

<p>Township: Supervisors Can Fill Vacancy in Their Board. Where a vacancy occurs in a board of supervisors in a county under township organization the remaining members of the board constitute the proper authority to fill such vacancy.</p>

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

<p>1. Fraudulent Intent Always Question of Fact, But Not Always for Jury. While by reason of section SO, chapter 32, Compiled Statutes, the intent of the vendor in an alleged fraudulent conveyance is always a question of fact, it does not follow that such question of fact must in every case be left to the jury.</p> <p>2. It is Proper to Direct Verdict, Where Evidence is Undisputed and Conclusions Are Foregone. Where from uncontradicted evidence all reasonable men must conclude that the vendor’s purpose in making a sale was to hinder creditors, and that the purchaser had notice of such intent prior to parting with the consideration, it is proper for the court to direct a verdict.</p> <p>3. Admissions of Vendor in Presence of Vendee Competent. Admissions of the vendor in the presence of the vendee, before the latter parted with the consideration, as to the intent with which the sale was made, are competent, though coming after the vendee had taken possession, since they tend to show notice of the vendor’s intent to the vendee;</p>

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

<p>1. Retiring Partner is Liable for Debts of Firm, Unless Released by Creditors. A retiring- partner remains liable for all tbe existing debts of the firm to tbe same extent as if be bad not retired. Tbe agreement between bim and tbe remaining partner, tbat tbe remaining partner will assume and pay all existing debts of tbe firm while valid as between themselves, can not change their relation to tbe creditors, unless tbe creditors become parties thereto.</p> <p>2. Diligence is Required on the Fart of Creditor. Tbe creditor of tbe firm, after notice comes to bim of the retirement of one partner and tbe assumption of tbe firm debts by the other member, should deal with reasonable diligence in tbe management of any securities in his bands for the payment of his claim, and exercise due caution in seeing that no advantage is taken óf tbe retiring partner; but this is all tbat can be required.</p>

<p>1. Demurrer for Want of Equity, Presents the Question of Whether Plaintiff Has Adequate Remedy at Law. When a petition is evidently framed for the purpose of setting out an equitable cause of action, a general demurrer thereto is equivalent to a demurrer for want of equity under the former practice, and presents the question whether the plaintiff has an adequate remedy at law.</p> <p>2. In Action to Set Aside Fraudulent Conveyance, Vendor Always Proper, But Not Always Necessary, Party. The vendor in a conveyance alleg'ed and proved io have been fraudulently made and to be for that reason void as against creditors is always a proper, but not in all cases a necessary, party to an action by the latter to set the instrument or transaction aside. If he has reserved or retained no title or interest in or lien upon the property, but has parted with it both absolutely and completely, he has no rights to be affected by the result oí the litigation and his presence may be dispensed with.</p> <p>3. Garnishment: Lien: Action eor Damages: Creditor’s Bill. By proceedings in garnishment, an attachment or judgment creditor may acquire a lien upon personal effects in the possession of a vendee who has acquired them by means of a sale or transfer fraudulent as against the creditors of the vendor, and in a case in which an action for damages, as at the common law, would not afford an adequate remedy, the lien may be enforced in equity by an action in the nature of a creditor’s bill.</p>

Heard below7 before Keysor, J. Tliis action was brought to foreclose a mortgage executed by Daniel L. McGuckin. Held: as a conclusion of laAV, that Anna McGuckin was the wife of Daniel L. McGuckin at the date of the execution of the mortgage, and that the property in question was the homestead of Anna McGuckin. The fact of copulation after a promise per verba de futuro, is simply evidence presumptive of a promise de pncsenti.

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

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

<p>1. Defective Petition: Uncertain Averments. A petition is not fatally defective merely because its averments could have been made more certain.</p> <p>2. Objection to Defective Pleading Must Be B,aised in Trial Court. Objection that a pleading is indefinite in its allegations should be raised in the trial court by a motion to make more definite and certain.</p> <p>3. Double Interest Stipulation in Note Enforceable. Where a note stipulates for a lawful rate of interest from date, and a higher and lawful rate of interest after maturity, both are contract rates and are enforceable. Savemeyer v. Paul, 45 Nebr., 373.</p> <p>4. Insurance Stipulation in Mortgage. Where a mortgage provides that the mortgagor shall keep the buildings insured for the benefit of the mortgagee, the latter is entitled to be reimbursed for insurance premiums paid by him.</p> <p>5. Possession of Note Evidence of Ownership. Possession of a negotiable promissory note is prima facie evidence of ownership.</p>

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

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

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

Error from the district court for Sioux county. Tried below before Westovek, J. On the 18th day of May, 1900, Alois F. Staudenmaier was found dead on the prairie some three miles from his own home and something over six miles from the home of the plaintiff in error. . There were a number of bullet holes in the body, and there is little doubt that he came to his death by murderous violence. He was last seen alive sometime after six o’clock in the morning of that day.

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

Original application for a peremptory writ of mandamus to compel the respondent to issue a writ of restitution on a judgment recovered in an action of forcible entry and detainer.

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

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

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

<p>1. Waiver of Errors Not Argued in Brief. Alleged errors not argued in brief of counsel for plaintiff in error may be deemed to bave been waived.</p> <p>2. Refunding of Illegal Municipal Taxes Can Not Be Required. Cities of the second class of less than 5,000 population empowered by law to levy taxes for municipal purposes can not be required to refund money received for illegal taxes imposed by such city, from a purchaser of real estate at a sale made thereof by the county treasurer for delinquent taxes, in the absence ol staiutory authority providing’ for the refunding- of such taxes. Hollowing- McOague v. Oity of Omaha, 58 Nebr., 37.</p> <p>3. Purchaser Subject to Rule of Voluntary Payment. The purchaser of real estate at delinquent tax sale is a volunteer and subject ordinarily to the rules applicable to voluntary payment of taxes.</p> <p>4. Rule of Caveat Emptor Applies to Purchaser. The rule of caveat emptor applies to the purchaser of real estate at tax sales. McOague v. Oity of Omaha, supra.</p> <p>3. Purchaser Charged with Notice of Record of Levy. A purchaser of real estate at delinquent tax sale is charged with notice of the public records showing the manner in which taxes for municipal purposes charg-ed against the real estate purchased were levied by the city authorities empowered by law to levy such taxes.</p> <p>6. County Not Liable for Irregular Action of City Council. Irregular action by a city ccmncil in making- a levy of taxes for municipal purposes resulting in the levy being declared illegal and void is not a “mistake or wrongful act of the county treasurer or other officer,” within the meaning of section 131, article 1, chapter 77, Compiled Statutes, for which the county can be held liable to refund to a purchaser at delinquent tax sale the illeg-al taxes so attempted to be levied. ’</p> <p>7. Party Must Bring Himself Within Terms of Statute. A party, to recover, under the jjrovisions of a statute, illegal taxes paid, must bring himself within its terms.</p>

<p>1. Facts Set Forth Constitute General Appearance. A party who appears in a case, asks to be and is made a party defendant for the purpose of objecting to a confirmation of sale in foreclosure proceedings, and objects to the confirmation because he was the owner of the property sold and was not served with summons, and be'cause another defendant, being a resident of the state, was served only with notice by publication, thereby makes a general appearance for all purposes of the case.</p> <p>2. Constructive Service No Ground for Setting Aside Sale. Tt is no sufficient ground to set aside a sale of real esiate made in foreclosure proceedings that a party not necessary nor indis.pensable to the action was only constructively served with summons when he was a resident oí the state.</p>

<p>1. Submission of Equitable Issues to Jury Not Prejudicial Error. It is not prejudical error to submit to a jury, for its finding generally, questions of fact on purely equitable issues raised by tlie pleadings in the case.</p> <p>2. Submission Discretionary With Court. A district court sitting-as a court of equity may, in its discretion, submit to a jury any disputed question of fact.</p> <p>If. Specific Performance: Statute oe Frauds. In order to justify a decree of specific performance of a verbal ag-reement for the sale of real estate, the acts of part performance relied on to escape operation of the statute of frauds must be clearly, definitely and satisfactorily shown, and it must also appear that such acts were done with reference to, and in pursuance of, the contract.</p> <p>4. Statute of Frauds Will Be Defeated Only by Possession Arising Upon Contract. Continued possession .by a tenant is not sneli a part performance of a verbal contract for tbe purchase of land as to take the case out of tbe statute of frauds. Possession, to have such an effect, must be clearly shown to refer to, and result from, tbe contract and not tbe lease. Bigler v. Baker, 40 Nebr., 335, 336.</p> <p>5. Occupancy as Owner. The above rule held, to apply when tbe alleged vendee was occupying tbe land as a former owner.</p> <p>6. Evidence Insufficient. Evidence examined, and held to be insufficient to support tbe finding of tbe jury and tbe decree of the trial court rendered thereon.</p>

<p>1. Errors Not Called to Attention of Trial Court Can Not Be Reviewed. An alleged error occurring during tlie trial of a case which has not been called to the attention of the trial court in the motion for a new trial can not be reviewed in this court on proceeding's in error.</p> <p>2. Error Can Not Be Predicated on Inconsistent Defenses, Where One of Them is Eliminated. AYhen different defenses are pleaded, one of which is inconsistent with the other, and by an instruction one of the inconsistent defenses is eliminated from the case, the plaintiff can not predicate error because of the ineonsisient pleading.</p> <p>3. Question: Tendee: Review. When there has been no offer of proof of the facts sought to be elicited by a question asked in direct examination objected to and objection sustained, the ruling of the court in sustaining the objection is not properly presented for review.</p> <p>4. Instructions: Exception En Masse. When instructions are excepted to en masse, if any one is found free from error, the exception can not be sustained.</p>

<p>1. Confirmation of Sale: Appeal: Supersedeas and Reversal: Ti-ie Title oe Purchaser Fails: Levy May Be Quashed and Sale Vacated. Defendants appeal from a final order confirming- a sale of real estate made to the execution plaintiffs under an execution issued on a judg-ment rendered in an equity action, the final order being- superseded during the pendency of ihe appeal. The judgment on which the execution was issued having in the meantime been reversed, held, that thereby the title of the purchaser to the property failed, and that an order might properly be entered in this court quashing- the levy and vacating the sale.</p> <p>2. Appeal Brings Up Cause for Trial De Novo. An appeal is not a remedy to correct errors of law only, but brings the case to the appellate court for a trial de novo. Wilcoso v. Saunders, 4 Nebr., 569.</p>

Heard below before Thompson, J. Heard on motion to quash bill of exceptions. The statute by which the clerk is allowed to settle and sign a hill of exceptions must be strictly construed. Scott v. Overall, 50 Nebr., 141. The court is referred to the folloAving cases Ailiere stipulations haAre been held insufficient: School District v. Cooper, 11 Nebr., 711; Martin v. Fillmore, 11 Nebr., 719.

Error from the district court for Saline county. Tried below before Stubbs, J. It is the duty of the jury in all cases to follow the instructions given them in charge by the court. Jewett v. Smart, 11 la., 505 [also Nebr. cases cited in opinion].

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

<p>1. Money for Liquor License Recéived by Treasurer Ex Officio. Money paid to a village treasurer to procure the issuance of a license to sell intoxicating liquors, as required by the ordinances of said village, is received by the treasurer ex officio, and his bondsmen are liable for his failure to account therefor.</p> <p>2. Village May Maintain Action Though Trustee of School District. A village can maintain an action against its defaulting treasurer and his bondsmen to recover license moneys collected by such treasurer, although the village is comprised within the limits of a single school district, to which the money must ultimately be paid.</p> <p>3. Where Petition States Cause of Action, and Answer Ho Defense, Hot Error to Direct Verdict for Amount Sued Eor. Where a petition states a cause of action, and the answer thereto fails to state a defense, it is not error for the court to instruct the jury to find for the plaintiff in the amount shown by the pleadings and proof to be due.</p>

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

<p>1. Opening Judgment: Stteeiciency oe Original Petition. In an application to open a judgment under the provisions of section 83 of the Code of Civil Procedure, a defendant will not be heard ■ to question the sufficiency of the petition on which such judgment was rendered.</p> <p>3. Definition of “Lull Answer.” “A full answer,” as used in this section, means one not wanting in any essential requirement; a meritorious answer.</p> <p>3. Evasive Answer. Held, That in application to reopen a judgment for the foreclosure of a tax lien an answer denying on information and belief the regularity of such lien is evasive and not “a full answer,” for the reason that such lien is a matter of public record from which defendant could obtain positive knowledge.</p>

<p>1. Married Woman’s Note: Defense. In an action against a married woman on a promissory note, wherein she pledges her separate estate for its payment, an answer averring that at the time of its execution she was a married woman and had no separate estate, and owned no property in her own right, states a good defense. Kocher v. Cornell, 59 Nebr., 315, followed.</p> <p>2. Married Woman’s Suretyship. A contract of suretyship is binding ’ on a married woman, when made with reference to, and upon the faith and credit of, her separate estate, subject to the qualification mentioned in the preceding paragraph.</p> <p>3. Married Woman’s Liability. The liability of a married woman, on a contract made within the scope of her statutory capacity to contract is to be determined by the same rules as those applied to persons of full capacity.</p>

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

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

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

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

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

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

<p>1. Failure to File Information. Where no information or indictment is filed against a defendant, charged with the commission of a crime, during the term at which he was held to answer, his detention is unlawful and he is entitled to be discharged. Leisenberg v. State, 60 Nebr., 638.</p> <p>3. Filing at Subsequent Term: Flea: Motion in Arrest. But if at a subsequent term of the court an information is filed and defendant pleads not guilty, the court has power to try the issue raised; and, after verdict of conviction has been rendered, it is not error to deny a motion in arrest of judgment. Leisenberg v. State, supra.</p>

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

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

<p>Action for Damages for Breach of Contract: Payment: Cancellation oe Securities. An action to recover damages for a breach of contract to purchase securities can not be maintained by one who, after making such contract to sell, has received payment thereof from the maker of such securities and has canceled the securities.</p>

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

<p>1. Homestead: Constructive Occupancy: Temporary Absence. Where property not occupied by the claimant and Ms family is claimed as a homestead, such claimant must show either a constructive occupancy, as in case of temporary absence without abandonment, or a bona-fide present intention and preparation to occupy followed by actual occupancy within a reasonable time.</p> <p>a. -: Occupancy: Present Intention: Evidence. Bare intention to occupy such property as a homestead at some future time is not of it.self sufficient to impress it with the character of a homestead, while it remains unoccupied; there must be a present intention so to occupy the property' as soon as circumstances reasonably permit, evidenced by acts of preparation indicating such intention.</p> <p>3. Two Homesteads: Intention to Occupy in Euturo. No one can have two homesteads at the same time. Hence where the claimant and his family are actually occupying property belonging to him as a home, intending to remain for the present, an intention to remove to some other tract owned by him and occupy the latter as a home at some indefinite future period will not enable him to claim it as a homestead.</p> <p>4. Certificate df Acknowledgment. A certificate of acknowledgment in proper form may be impeached only by clear and convincing evidence of its falsity.</p>

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

Error, from the district court for Sherman county. Tried below before Sullivan, J. The amended petition alleges that on October 28, 1894, the defendant in error made an oral lease with plaintiff in error for thirty-five acres of land for the term of one year, commencing on March 1, 1895, and ending on March 1, 1896; that the covenants of the lease were: (1) to pay as rent - one-third of the crop to be delivered at the premises of Alonzo Zink, plaintiff in error’s agent, and…

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

<p>1. Verdict: Instructions. The jury are bound to give their verdict in obedience to the instructions of the court.</p> <p>2. Instructions: Motion for New Trial: Assignment of Error: Law of the Case. An instruction, which is neither complained of in the motion for a new trial, nor assigned for error in this court, is the law of the case.</p> <p>3. Estoppel: Ignorance of Beneficiary. In order to estop a party by mere silence, it must appear that the person claiming the benefit of the estoppel was ignorant of the rights of the party against whom the estoppel is alleged.</p>

<p>1. Transfer of Mortgage by Administrator to Heir: Foreclosure by Heir. AVhere there are no creditors of an estate and the heirs are competent to, and do, consent to the transfer by the administrator of a mortgage belonging to the estate, to one of the heirs in part satisfaction of his share of the estate, and such transfer is afterwards ratified by the court in which the estate is being administered, such ratification relates back to the transfer and is equivalent to a prior authorization; and such heir, or his- assignee, may sue in his own name to foreclose the mortgage.</p> <p>S. Allegation, of No Action at Law, Must Be Proved. In a suit to foreclose a real estate mortgage the allegation that no action at law has been brought to recover the mortgage debt must be proved if it is not admitted.</p> <p>3. Stipulation: Taxes: Public Policy. A stipulation in a mortgage authorizing the mortgagee to accelerate the maturity of the mortgage debt if the taxes on the mortgaged premises are not paid at or before the time they become delinquent, is not forbidden by statute nor contrary to public policy and may be enforced.</p> <p>4. Payment of Taxes After Commencement of Action, Does Not Deprive Mortgagee of Right. And the payment of such delinquent taxes after the commencement of an action to foreclose the mortgage, does not deprive the mortgagee of the right secured by the exercise of his option.</p> <p>¡3. Rendition of Two Decrees Not Reversible Error. The rendition of two decrees in a case at the same term, but not on the same day, is not reversible error if the rights 'of the litigants have been correctly determined.</p>

<p>1. Fraudulent Conveyance Hot Void Generally. Under section 17, chapter 32, Compiled Statutes, 18S9, conveyances and assignments made to defraud creditors are not void generally, but only as against persons defrauded.</p> <p>2. Subsequent Creditor Must Show He Has Been Defrauded. A subsequent creditor can not successfully assail a fraudulent transfer • of propert3r without showing that he has been actually defrauded thereby.</p> <p>3. Transfer in Trust. All transfers of property made in trust for the use of the person maldng the same, are void as against existing and subsequent creditors of the transferrer.</p> <p>i. Contract-Between Husband and Wife: Release op Homestead Stjeeicent Consideration. Tbe release of a homestead right '-s a sufficient consideration to support a contract made between husband and wife for an equal division of the money derived from a sale of the family homestead.</p> <p>5. Intervener’s Claim: Evidence. An intervener who claims a fund in dispute between the plaintiff and defendant, must, if his claim is adverse to both the original parties, establish his right by a preponderance of the evidence.</p>

<p>1. Mechanic’s Lien: Tenant: Landlord. A tenant can not, without the authority or consent of his landlord, charge the leased premises with a lien, for material used in the construction of a building thereon.</p> <p>3. -: -: Agricultural Fixture: Evidence. In the absence of evidence showing' that such building was not permanently annexed to the soil, or that it was intended as a mere agricultural fixture, it can not be treated as the tenant’s property and subjected to a lien in favor of the person furnishing the materials used in its construction.</p> <p>3. Trade Fixture: Right of Removal. The right of a tenant, or of those claiming through or under him, to remove a trade or agricultural fixture from the leased premises, expires with -the tenancy. ’</p>

<p>1. In Contracts of Insurance, Forfeitures Are Not Favored. Forfeitures are not favored, and in contracts of insurance a construction resulting in a loss -of the indemnity for which the insured has contracted will not be adopted except to g’ive effect to the obvious intention of the parties. Phenix Ins. Oo. v. Holcombe, 57 Nebr., 622.</p> <p>2. Construction of Policy. In construing conditions in a policy of insurance, to be complied with subsequent to an event resulting in loss or injury for which indemnity is claimed, with respect to the giving of notice of the loss or injury, and preliminary proofs thereof, a more liberal construction will be given in favor of the beneficiary than when the conditions are to be complied with prior to loss or injury for the purpose of continuing the policy in force and effect.</p> <p>8. Provisions as to Time Are Not Always to Be Literally Complied. With. Provisions as to time in which the notice is required to be given of a loss or injury for which indemnity is claimed, are not necessarily and in every instance to be literally complied with in order to prevent a forfeiture of the policy.</p> <p>4. Seasonable Construction as to Provision of Time. A reasonable and natural construction will be given such provisions in order to carry out the evident intention and manifest purpose of the parties to the contract, and the object to be accomplished thereby.</p> <p>5. Time in Accident Policy, Condition Precedent. When a time is fixed in a policy of accident insurance for the giving of the notice of an accident and injury resulting therefrom for which indemnity is claimed, with the particulars thereof, which is reasonable in its character, this will ordinarily be regarded as a condition precedent to be complied with before a recovery can be had.</p> <p>6. Circumstances and Conditions May Change Application of Law. But when because of circumstances and conditions surrounding the transaction, obstacles or causes exist preventing and rendering impossible the performance of the act within the time stipulated, the act may be performed thereafter, and the beneficiary will be excused for the failure, if done within a reasonable time, or within the time stipulated after the obstacle or cause preventing prior compliance ceases to exist; the question of the sufficiency of the excuse offered, and the reasonableness of the time in which the act is performed, to be determined according to the nature and circumstances of each individual cáse; the beneficiary in all cases being required to act with diligence, and without laches on his part.</p> <p>7. Accident Producing Dementia Excuses Failure to Give Notice. Where a person suffered a fall by accident, resulting in a concussion of the brain, which deranged and crazed his mind so that he could not intellig'ently give the notice and required information regarding' the accident and injury within the time stipulated, this fact excuses him in law from compliance with the conditions of the policy in that regard during the time of the existence of the disability.</p> <p>8. Evidence Sufficient. Evidence examined, and found sufficient to .support the finding of the jury.</p>

<p>Appeal from the district court for Oass county. Heard helow before Ramsey, J.</p>

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

<p>1. Order Vacating Appraisement Presumed Made on Sufficient Showing. An order vacating- an appraisement of real estate being-sold under an order of sale in foreclosure proceedings, entered on the application of the plaintiff, on the ground that one of the appraisers was not a freeholder, will, in the absence of the evidence on which the order was made, be conclusively presumed to have been made upon a showing amply sufficient to sustain the action taken.</p> <p>2. Vacating Appraisement: Harmless Error. When an appraisement of real estate is set aside and a new -appraisement is made, which is much higher than the first, and under which the laud is sold, a party claiming to own the land is not prejudiced by the order vacating the first appraisement, and, even if erroneous, it is no sufficient ground of objection to the confirmation of the sale.</p>

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

<p>i. Finding of Court Based on Conflicting Evidence, Will Not Be Disturbed. When the evidence is fairly conflicting or where the case, as made by the evidence, is such that reasonable minds might fairly differ, as to the correct and proper conclusion to be drawn therefrom, a finding of fact made by the trial court will not be disturbed on appeal.</p> <p>2. Finding of Court of Same Weight as Verdict of Jury in All Cases. Findings on questions of fact by a trial court are entitled to the same weight and same presumption of correctness as a verdict of a jury, and the rule is the same whether the case is >rought to this court on error or appeal, and applies to all classes of actions. Bvrlhtgim v. Warner, 39 Nebr., 493.</p> <p>3. Evidence: Finding. Evidence examined, and held sufficient to support the finding and decree of the trial court.</p>

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

<p>1. Contributory Negligence: Evidence: Guy-Wire: Electric Current: Knowledge: Warning. Evidence tliat deceased, a lad of seventeen years, knew that a guy-wire of an eleotric-liglit post carried an electric current, and that he voluntarily laid his hands upon it after being told by a younger companion to watch out and get away, does not conclusively establish contributory negligence where it also appears that the current had been running over this guy-wire for several days', with notice to defendant,- and that the wire had been handled, pulled and shaken frequently by various parties during that time, and, a few minutes previously to the fatal occurrence, by deceased, and by other in his presence, without harm.</p> <p>2. —-: -: -: -: -: Reeusal of Instruction. Instructions to the effect that ii such a lad, knowing such a g'uywire was carrying an electric current, voluntarily took the wire in his hands, his doing so was such negligence as precluded any recovery for his death from the act, held properly refused.</p> <p>3. Next of Kin: Helatives: Evidence. Where there was proof tending to show that the next of kin, the father, was receiving from him pecuniary assistance in supporting the mother and brothers and sisters of deceased, it was not error to admit proof of the existence of such relatives.</p>

<p>1. Mortgagor: Waiver. A mortgagor oí chattels can waive the benefit of the provisions of the statute relating to foreclosures.</p> <p>2. Rights and Obligations of a Mortgagee of Chattels. The provissions of a chattel mortgug-e that the mortgagee may, upon default, take the property and sell the same at public or private sale are valid, but under such provision the mortgagee has no right to the possession of the property except for the purpose, of foreclosure; and if he takes the property and holds the same longer than is reasonably necessary for that purpose, he will be held to have elected to take the property, so far as its value’ will g-o, in satisfaction of his claim, and if the value is greater than the amount of his claim, he holds the surplus for the mortgagor.</p>

<p>1. A Judgment of District Court, Except by Confession, Is a Lien on Land from First Day of Term. A judgment of the district court in an action commenced before the term at which it was rendered, except it be a judgment by confession, is a lien upon the lands of the judgment debtor within the county from the first day of the term, no matter on what day of the term it was actually pronounced.</p> <p>■2. A Judgment Against the Vendor of Real Estate, Is a Lien on His Interest in Land. Where a judgment is recovered in the district court against the vendor of real estate in the same county, svho has not made a deed for such real estate, nor received the whole of the purchase money therefor, such judgment is a hen on whatever interest the vendor had in the land at the time the lien attached.</p>

Original application for mandamus to compel the clerk of the county of Buffalo to print on the official ballots for the coming general election the name of the relator as a candidate for the office of supervisor of districts numbered six and seven, city of Kearney.

<p>1. Justice’s Docket as Evidence. Entries by a justice of the peace upon his docket of material matters proper to appear there are evidence of the facts therein stated.</p> <p>2. Service of Summons on Nominal Defendant within the Bailiwick; Jurisdiction of Party in Interest. Where an action is brought against a nominal defendant in one county, who has no bona-ñde interest in the controversy, a summons can not properly be issued and served upon a party in another county.</p>

<p>Appointment of Receiver. Authority is conferred upon a judge of the district court to appoint a receiver.</p>

<p>1. Admission, of Incompetent Evidence, Presumed Prejudicial. When incompetent evidence is admitted to prove a fact not otherwise conclusively established, and it does not affirmatively appear from the record that the incompetent evidence did not afEect, unfavorably to the objecting party, the verdict returned by the jury, the error iu admitting such evidence will be deemed prejudicial and the judgment reversed.</p> <p>S. Witness: Error: Waiver. Where a question is asked a witness, and the adverse party, examines such witness as to the competency of the proposed evidence and then interposes an objection to the question which is overruled and an exception taken and the witness is 'again asked the same question to which an answer is given without further objection, the objection made to the question first asked and- an exception taken to the ruling thereon is sufficient to present for review the admissibility of such evidence.</p>

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

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

<p>1. Petition on Promissory Note: Copy: Allegation Inferential Sufficient. A petition declaring on a promissory note which is copied therein, and from the allegations of which it may be inferred that the sum alleged to be due was due from the adverse party to the plaintiff, states a cause of action, although it is not alleged in direct terms that the sum claimed is due from the adverse party to the plaintiff.</p> <p>2. Usury: Mistaken Computation. When in the computation of interest a mistake is made, and more than ten per cent, is charged, the contract will not for that reason be declared usurious.</p> <p>3. -: Contract. Before a contract may be declared usurious, there must be an ag-reement between the parties to charge and receive a greater rate of interest than that allowed by law.</p> <p>4. Withdrawal of Question from Jury Proper. Action of trial court in withdrawing from the jury the question of usury held proper.</p> <p>5. Instruction Erroneous Without Prejudice. An instruction, even though erroneous, is without prejudice and no ground of reversal, where the party complaining- could in no view of the ease recover on the issue covered by such instruction.</p> <p>C. Recovery for Breach of Warranty. A recovery on an alleged breach of warranty, held, could not be had under the evidence in the case.</p>

<p>Confirmation: Appraisal: Value: Conflicting Evidence. Mere difference of opinion, fairly balanced, as to the value of real estate appraised and sold in foreclosure proceedings, is not a good ground of objection to confirmation.</p>

<p>1. ■ Mortgage: Title in Mortgagor Pending Confirmation. The legal title of mortgaged real property remains in the mortgagor pending- the confirmation of a sale thereof made under a decree of foreclosure of the real estate mortg-ag-e.</p> <p>2. Payments Before Confirmation Accrue to Mortgagor’s Benefit. All payments made on the decree prior to confirmation accrue to the benefit of the mortgagor, and the excess of the sum for which the premises sold, after deducting- costs and the amount of such decree, with interest, less the payments made thereon, should'be paid to the mortgagor.</p>

<p>Application for a writ of mandamus to compel the respondent, as county clerk of Douglas county, to place on the official ballots the name of the relator as a candidate for the office of county commissioner.</p> <p>Norval, O. J., dissents.</p>

Error, from the district court for Douglas county. Tried below before Dickinson, J. Norvar, (J. •J., disserting. Defendant is a mutual insurance company, organized under the laws of the state of Nebraska and located at Grand Island. The cause of action did not arise in this state; for the injury complained of was not received in Douglas county, Nebraska, but in Bryan county, Iowa.

<p>1. Fraudulent Transfer: Transaction Between Relatives: .Burden oe Prooe. When a father transfers all of his property to his children and immediately thereafter, incurs a large indebtedness for property, a larg’e part of which he also transfers to his children, in a suit by the creditor to set aside such transfers as fraudulent the burden of proof is on the grantees to show a sufficient consideration for- the transfers and that the same were made in g-ood faith.</p> <p>2. Debt After Conveyance: Fraudulent Intent. The fact that the debt was contracted after the conveyance was made is no defense where the conveyance was made with a view to incur the indebtedness and avoid its payment.</p> <p>3. Voluntary Conveyance: Subsequent Creditor: Intent. A voluntary conveyance made with the intent on the part of the grantor to defraud subsequent creditors is void as against such creditors without proof that the grantees had notice of the fraudulent intent of the grantor.</p>

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

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

<p>1. Foreclosure: Pleading Breach oe Condition: Sufficient Allegation. In a suit to foreclose a real estate mortgagee, brought subsequently ,to the maturity of the note it was given to secure, an averment in the petition that neither the debt nor any part thereof has been paid sufficiently pleads a breach of the condition of the mortgage.</p> <p>2. Averments: Code. In a mortgage foreclosure, the plaintiff is required, by suitable averments in the petition, to comply substantially with the requirements of section 850 of the Code of Civil Procedure.</p>

<p>1. Copy of Appraisement for Sale Must Be Filed With Clerk of District Court. A copy of an appraisement of land's made for the purpose, of judicial sale must be forthwith filed with the clerk of the district court of the proper county.</p> <p>2. Silence of Becord: Presumption. When the record is silent as to filing- of a copy of the appraisement, it will be presumed that it was duly and regularly filed.</p> <p>3. Appraisement: Actual View. A sale is not invalidated because the appraisement was not made upon actual view of the premises, when the appraisers are familiar with the property.</p>

<p>Original proceeding in mandamus to require a county clerk to prepare an official ballot in a manner specified.</p>

<p>1. Land Tax, Lien In Rem. A land tax creates no personal liability against the owner of the land. Such tax must be collected, if at all, by a sale of the particular tract ag'ainst which it is charged and upon which it is, by the statute, made a specific lien.</p> <p>2. Relief: Pleading: Peooe. A plaintiff is entitled to relief to the > extent that the averments of his petition are sustained by the proof.</p> <p>3. Variance Not Material, Unless Misleading. A variance between an averment of a pleading and the evidence given to sustain it is not to be deemed material unless it has misled the adverse party to his prejudice in maintaining his action or defense upon the merits.</p> <p>4. Tax Lien Extinguished by Payment: Exception. The tax lien upon real estate existing in favor of the public is ordinarily extinguished by payment. The exception to the rule is where land has been sold by the county treasurer and taxes against the same, becoming afterwards delinquent, are paid by the holder of the tax-sale certificate.</p>

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

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

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

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

<p>Appraisement: Mistake in Valuation. An appraisement of real estate for the purposes of a judicial sale can not be successfully assailed on the g-round that the appraisers were mistaken in their valuation of the property. Nelson v. Ailing, 58 Nebr., 607.</p>

Original application for mandamus to compel tlie respondent, as district judge, to fix a reasonable amount as a supersedeas bond.

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

<p>1. Patent Clerical Error: “Pain” for “Paid.” Pleading that “no part of said check has been pain except the sum of $68.12, which sum was paid by defendant’s assignee for creditors” is to be construed as if the word written “pain” were “paid.”</p> <p>2. Motion for Judgment Hon Obstante Veredicto: Construction. As against' a motion for judgment notwithstanding verdict for defendant, all the facts set out in the two paragraphs stated as first and second defenses will be considered together, so far as they are consistent and go towards showing a valid defense.</p> <p>:¡. Motion for Judgment: Statute of Limitations. On motion for judgment for plaintiff after verdict for defendant, as regards the statute of limitations, the above is to be construed as if it alleged a payment by an assignee under an insolvency law.</p> <p>4. Allegation of Residence. Allegation that defendant has continuously resided in Nebraska ever since “on or about January 13th, 1888,” sufficiently indicates such a residence on and after January 24th, 1889, as against a motion, after verdict in favor of defendant, for judgment for plaintiff.</p>

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

<p>Action on Note: Plea oe Accord and Satiseaction. In an action upon a promissory note, the execution of which is admitted, where as a defense an accord and satisfaction is attempted to be pleaded, the plea is bad when the performance necessary to constitute the satisfaction is not alleged, and it appears upon the face of the i>lea that performance, and not the agreement to perform, was to be received in satisfaction.</p>

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

<p>1. Resident Alien. A “resident alien,” mentioned in section 25 of the bill of rights, is one who. resides in the state of Nebraska.</p> <p>2. Statute, Re-enactment of Common Law: Proviso Excepts Property in Towns. Chapter 58 of the Session Laws of 1889, providing that non-resident aliens shall not inherit land in this state, is but the re-enactment of the common law; and the proviso of ihe act, that its provisions should not apply to any real estate lying within the corporate limits of cities and iowns, is by implication a legislative determination that the common law doctrine of inheritance should not be applied to lands within the corporate limits of cities and towns.</p>

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

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

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

<p>1. Representation: Right to Rely Upon. A person is justified in relying- on a representation made to him in all cases where the representation is a positive statement of fact, and where an investigation would be required to discover the truth. Foley v. Holtry, 43 Nebr., 133, followed.</p> <p>2. False and Fraudulent Representations: Rescission of Contract: Election. Where a party is induced to his damag-e to enter into a contract by the false and fraudulent representations of the other party, and where such false and fraudulent representations have been relied on as the inducing cause for entering into such contract, and where such representations are of facts peculiarly within the knowledg’e of the party making them, and not mere expressions of opinion, the party so defrauded may elect whether he will stand by the contract or rescind it.</p>