Volume 63 — Nebraska Reports

<p>1. Assistant Cashier: Condition of Bond. A condition in the bond of an assistant cashier of a hank that he will “honestly, faithfully and efficiently discharge the duties 'of such position” is a guaranty not only of the personal honesty of such officer, but also a guaranty of his competency, skill and diligence in the discharge of his duties.</p> <p>S. Assistant Controlled by Superior Only Within Scope of Authority. Within the scope of the cashier’s authority, and so long as he is apparently acting on behalf of the corporation, the cashier’s directions may control the assistant cashier and the teller; and the latter may not be required to look beneath the surface of his superior’s acts. But, when he is led to believe that the cashier is violating his own duty to the bank, and is taking the bank’s funds for his own ends, irregularly, and without authority from the directors, the assistant cashier has no more right to aid in or connive at such misappropriation than if it were being perpetrated by a stranger.</p> <p>3. Acceptance and Retention of Bond Tantamount to Approval. The fact that the bond of an assistant cashier of a bank was delivered to the cashier of such bank, who was one of the directors, and that the assistant cashier entered upon the duties of his office, under such bond, and that such bond was retained by the cashier of the bank, is sufficient to establish the acceptance of the bond, though no acceptance or approval of such bond is shown by the minutes of the board of directors.</p> <p>4. Negligence: Recovery. To authorize a recovery for negligence the damag-e complained of must be the natural and proximate result of the negligence and not a remote and conjectural one.</p>

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

<p>1. Mutual Insurance: Waiver oe Forfeiture. A provision in the policy of a mutual fire insurance company that, if the member holding the policy “fails to pay any assessment * * * at the time specified in the notice sent him by the secretary,” it shall become void, is within the purview of the rules as to waiver of forfeitures and will be waived by acts of the company inconsistent with an intention to rely thereon.</p> <p>2. -:-: Bboeept of Delinquent Assessment. A further provision that, if the policy-holder afterward pay the amount due from him, the policy “shall be holding from the date of the receipt of said amount,” will prevent receipt of the amount of a delinquent assessment from operating as a waiver of forfeiture under the prior provision, if at the time of the receipt of such assessment any of the insured property remains in existence to which the revived insurance may attach.</p> <p>3. Quaere. Whether, if the delinquent assessment was levied prior to loss and to meet losses accruing- prior thereto, receipt of the amount thereof subsequently with knowledge of the loss will constitute a waiver of the forfeiture, quaere.</p> <p>4. Waiver: Beceipt of Subsequent Assessment After Total Loss. But where all the property covered by the policy is destroyed by fire while the policy-holder is delinquent, so that nothing remains to which renewal of the insurance might attach, receipt of the amount of subsequent assessments levied after the loss, in addition to the assessment levied prior to and delinquent at the time of the loss, with knowledge of the facts, is inconsistent with reliance upon the forfeiture and is a waivér thereof. National Masonic Accident Ass’n v. Burr, 44 Nebr., 256, distinguished.</p>

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

<p>1. Mandate. When the judgment of a district court.is reversed, a mandate is the proper and legal mode of communicating the judgment and directions of the supreme court to such district court.</p> <p>2. Jurisdiction of Supreme Court to Alter or Modify Its Own Judgments. The jurisdiction of the supremo court to alter or modify its judgments continues during the whole of the term at which its final judgment is rendered, unless its mandate is acted upon in the district court. But when the mandate of the supreme court is acted upon and carried into effect by the district court, the power of the supreme court over its judgment is at an end.</p> <p>2. District Court Should Await Mandate: Waiver. In order to prevent conflict, a district court whose judgment has been reversed should .defer action until the mandate of the supreme court is ¡before it, although, whepe t>oth parties proceed without objeption, the irregularity in so doing without a mandate on file may not be taken advantage of thereafter.</p> <p>4. Order Unadvised or Irregular. When it is manifest on the face of the record that the court has acted irregularly and unadvisedly, it may, and should, so long as its jurisdiction over its own order continues, undo it as soon as the facts come to its notice.</p> <p>5. Rule in Case of Dismissal. The rule that the court has full power and control over its judgments and orders during the term at which they are rendered applies to an order of dismissal entered at the instance of á plaintiff. •;</p> <p>6. Right of Plaintiff to Dismiss Hot Absolute: Power oe Court. The rig-ht of a plaintiff to dismiss his action is not absolute in the sense that the court has no power over or discretion with respect to its exercise. Whenever justice to the court or its officers or to any of the parties requires imposition of terms or retention of the cause upon the docket, the court, in its discretion, may impose such terms or refuse to permit dismissal.</p> <p>7. Discretion to Protect Rights Hot Pormally Asserted in Record. Such discretion depends upon the existence of rights which would be jeoparded by dismissal, not upon the manner in which the court may become cog-nizant of them, and is not conditioned upon some formal claim or assertion of them in the record.</p> <p>8. Restitution: Summary Proceedings. Where a party to a cause has obtained money or property under or by virtue of a judgment which is afterwards reversed, the court has power to compel restitution by summary proceedings in that cause.</p> <p>9. Restitution Matter of Right. Such restitution is a matter of right and does not depend upon the merits of the controversy between the parties.</p> <p>10. Record: Evidence Aliunde: Order to Snow Cause. Where the record shows that money has been collected or obtained under and by virtue of the judgment afterwards reversed, restitution should be awarded as of course. Where such fact does not clearly appear upon the record, but is made to appear alwtide, the proper procedure is by order to show cause why restitution should not be made.</p>

<p>1. School District: License Money. A school district is not entitled to any of the proceeds of the fines and license money collected under the ordinances of a city, unless some part of its territory is included within the territorial limits of such city.</p> <p>3. Boundaries of City: Ordinance. An ordinance defining the boundaries of a city can not be accepted as evidence of the annexation of contig-uous territory, not included in the corporate limits ■ prior to the passage of such ordinance.</p>

<p>1. Appeal: New Issue: Waiver. On the trial of a case appealed from justice court, the plaintiff can not complain of the action of the court in admitting competent evidence offered by the defendant in support of a material allegation of the answer on the ground that such allegation presents a new issue not interposed in the justice court, where no objection was made to the answer by motion or otherwise, but plaintiffs joined issue thereon by filing a reply.' Plaintiff should have moved to strike from the answer any new issues made in the district court which were not properly pleaded and which he did not wish to try.</p> <p>2. Garnishment After Execution. Where, in a garnishment proceeding- after judgment and return of execution unsatisfied, the g-arnishee appears and answers and the creditor commences an action against him for the reason that his disclosure is unsatisfactory,-the statute contemplates that the creditor shall in his petition state wherein the answer of the garnishee is untrue or insufficient; but where the garnishee appears and refuses to answer, and suit is brought against him in justice court for failure to answer, and the garnishee in such suit answers by general denial only, and appeals to the district court from a judgment entered against him by the justice, and in his answer in the district court on such appeal, admits for the first time his possession of property belonging to the judgment defendant and asserting a mortgage lien against such property, the plaintiff may, by bis reply, put in issue tbe validity of tbe mortgage.</p> <p>3. Chattel Mortgage: Contest. Tbe validity of a chattel mortgage asserted by a garnishee and under which he has taken possession of tbe mortg’ag-ed property, may be contested by tbe judgment creditor.</p>

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

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

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

<p>1. Jury: Request eor Submission: Estoppel. Where a question is submitted to the jury by the court, after -the request of a party for its submission, such party will not be heard to say that a finding thereon adverse to him is not sustained by sufficient evidence.</p> <p>2. Assignment of Error Not Specific. The assignment in a petition in error that a verdict is contrary to law is not sufficiently specific to entitle it to consideration in this court.</p> <p>3. Instruction. A party will not be heard to complain of an instruction when the matter objected to in such instruction is, in substance, embodied in one tendered by himself.</p> <p>4. —;-. It is. not error to refuse to give an instruction tendered, when the same ground is covered by instructions given by the court on its own motion.</p>

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

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

Error from the district court for Cedar county. Tried below before Evans, J. The error taken arises upon confirmation of the sale of certain real estate in the village of Hartington. The record will disclose the following facts, orders, sales, etc.: Decree was rendered April 18, 1896, and stay of nine months taken. First order of sale issued March 10, 1897; certifi-, cates and copy of appraisement filed March 1.1, 1897.

<p>1. General Exemption from Forced Sale. To any head of a family who has neither lands, town lots nor houses subject to execution as a homestead there is exempt from forced sale on execution personal property not exceeding $500 in value.</p> <p>8. Trover: False Inventory and Oath No Defense. To an action for conversion against an officer for releasing a levy upon exempt personal property, it is no defense that the inventory and oath of the debtor filed under section 582 of the Code of Civil Procedure are untrue.</p>

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

<p>1. Judicial Sale: Notice. The notice required for the sale of land upon éxecution or order of sale need not contain a statement of the amount due upon the judgment or decree for the satisfaction of which the sale is to be made.</p> <p>2. -: -: Description oe Property. The notice of sale required to be given by section 497 of the Code of Civil Procedure is sufficient if it describes the property about to be sold with reasonable certainty. Pearson v. Badger Lumber Go., 60 Nebr., 167.</p> <p>3. Provisions of Law: Failure to Comply. A failure to comply literally with all the provisions of the law relating to the sale . of real property upon execution or order of sale will not justify a court in denying a motion for confirmation, where it is evident that such failure was not prejudicial to the rights of the defendant.</p>

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

<p>1. Inferior Court: Record: Jurisdiction. The records of inferior courts must affirmatively show that such courts have acted within the scope of their authority.</p> <p>2. Jurisdictional Facts: Presumption. Jurisdictional facts will not be presumed in order to sustain the judgments of inferior courts, but when it appears that, jurisdiction has once attached the presumption that the subsequent proceedings were regular will be indulged until the contrary is shown.</p> <p>3. -: ———: Adjournment. The statute not requiring a justice of the peace to enter upon his docket the hour when an order of adjournment is made, where jurisdiction has attached, it will be presumed that such order was made at the proper time.</p> <p>4. Transcript: Bill oe Exceptions: Evidence Aliunde. This court is not authorized to look beyond the transcript and bill of exceptions for evidence of what transpired at the trial.</p> <p>5. Attachment: Record: Review. An assignment of error that the justice failed to state in his docket that a writ of attachment was issued, presents no question for review where the record fails to disclose any order dissolving or sustaining the attachment.</p> <p>6. Bill of Particulars: Entry on Docket. The failure of the justice of the peace to enter the hill of particulars at large upon his docket is not prejudicial error.</p>

In 1897 the legislature of Nebraska passed an act known as the “Anti-Trust Law,” which was introduced by Senator Gondring, of Columbus (Senate File 330), and went into effect July 10 of that year. Session Laws, 1897, ch. 79, 'p. 347; Compiled Statutes, 1901, ch. 91a, entitled “Trusts.” Under section 4 of said act, Constantine J-.

<p>1. Public Corporation: Money Judgment. Where a public corporation, other than a sovereign state, incurs a legal liability, it may, unless otherwise provided by statute, be sued and a' money judgment recovered against it.</p> <p>2. Lawful Claim: Right oe- Action. The existence of a lawful claim implies, ordinarily, the right to enforce such claim by action.</p> <p>3. Counties: Action: Claim: County Board: Jurisdiction. The provision of our statute (Compiled Statutes, 1901, ch. 18, art. 1, sec. 20) declaring that counties may be sued either in law or in equity is express authority to enforce by action any claim of which the county board has not exclusive original cognizance.</p> <p>4. -: -: -: -: County Warrants. County warrants are not within the class of claims which must, in the first instance, be presented to the county board for examination and adjustment. .</p> <p>5. -: -: -: -: -: Collection Wrongfully Applied. An action to recover a money judgment upon a county warrant may be maintained when the money for the payment of such warrant has been collected and wrongfully applied by the county authorities to the payment of other claims against the county.</p>

<p>1. Abstract of Title: Qilere. Whether in matters pertaining to the title of real estate a person may rely on an abstract of title duly made and certified, and without malting an examination of the public records in order to free himself from the charge of culpable neglect, when relief is asked in a court of equity on the ground of mistake, qucere.</p> <p>2. Abstract of Title: When the record discloses that a person seeking relief in a court of equity, on the ground of mistake as to the condition of title to real estate with respect to which he had acted, relied on an abstract of title of which there is no evidence showing it to have been prepared by a competent and qualified abstracter, or to include or purporting to include information regarding the condition of the title as affected by pending suits regarding which the mistake occurred, and on account of which the relief was prayed, it can not be said the party asking the relief was free from culpable neglect, and a decree denying him such relief will not be disturbed on appeal.</p> <p>3. Reaffirmed. Judgment of affirmance on former hearing, 60 Nebr., 625, adhered to.</p>

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

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

<p>1. Soad District: Not a Political Entity or Corporation. A road district is not a political entity or corporation in which property rights may invest, and which, as such, has corporate powers or capacity to conduct the affairs for which it is created.</p> <p>3. Road Overseer: Officer of Township. A road overseer is not an officer of the district, but of the township in which the road is situated.</p> <p>3. Highways: Duties: Township and County: Power and Authority. The duties, power and authority relating to public highways devolve on the township and county which are by law directly empowered to act regarding such matters.</p> <p>4. Road Overseer: Breach of Official Duty: Right of Action. A town or a township in counties under township organization may maintain an action for a breach of official duty by a person holding the office of road overseer.</p> <p>5. -: -: Duty to Account. It is the duty of a road overseer to account to the proper officer or officers for all the moneys coming into his hands, the disbursements made, and for what purpose.</p> <p>6. Report: Comprehensive: Intelligible: Cobreotness. The law implies that such report shall be sufficiently comprehensive and intelligible that its correctness may be inquired into and passed upon by those whose duty it is to examine and to approve the accounting so made.</p> <p>7. Road Overseer: Account: Approval by Boabd. Before the road overseer is authorized to apply district road funds in his own hands to his own use for time consumed in warning' hands, overseeing work, and making his report as provided by section 96, chapter 78, Compiled Statutes 1901, his account therefor must be presented to and approved by the town board.</p> <p>8. -: Disbursement of Funds: Responsibility. In the disbursement of funds coming' into the hands of a road overseer in the repair and improvement of the public highways, he is charged with the responsibility of a faithful discharge of the duties imposed; and if in making such disbursements he pays more than the services or materials are reasonably worth in the market, and the disbursement is not made in good faith, or is made fraudulently or corruptly, the excess payment will he unauthorized, for which he would he liable as for misconduct in office.</p> <p>9. Witness: Instruction. Where a defendant has been called by and given testimony on behalf of the plaintiff, it is error to instruct the. jury “that a party presenting a witness is bound by the testimony of such -witness, even though it be unfavorable to his side of the case.”</p> <p>10. Conflicting Instructions. Where there are two conflicting- instructions which are confusing- to the jury and leave them in doubt and uncertainty as to which is correct, the incorrect instruction will he deemed prejudicially erroneous.</p>

<p>1. Application for Continuance: Discretion oe Trial Court. An application for a continuance is addressed to the sound discretion of the trial court and its ruling thereon will not be held erroneous, unless an abuse of discretion is disclosed by the record.</p> <p>2. Due Diligence: Materiality oe Evidence: Cumulative Testimony. When due diligence is not shown to have been exercised, or when the materiality of the proposed evidence does not appear, or when the proposed evidence may be procured from witnesses within the jurisdiction of the court, it is not error to overrule an application for a continuance for the purpose of securing the same character of testimony from witnesses residing in other states,</p> <p>3. Motion for New Trial: Newly Discovered Evidence. It is not error to overrule a motion for a new trial on the ground of newly discovered evidence, where it does not appear that such evidence, if introduced on a retrial, would probably change the result reached on the first trial.</p> <p>4. Application for Continuance: Affidavits: Bill of Exceptions. Affidavits in support of an application for a continuance or of a motion for a new trial, nofr made a part of the bill of exceptions and found only in the transcript of the record certified to by the clerk of the trial court, are not properly presented to a reviewing court for consideration in determining whether the lower court correctly ruled on such application.</p> <p>5. Jurors: Challenge to Array: Talesmen: Two Years Limit. It is not a good ground of challenge to the array of jurors selected for a regular term of court that in selecting the names from which to draw those required to be summoned to serve as jurors the county commissioners selected the names of several persons who had served on the regular panel or as talesmen within two years next preceding such term, and that of those drawn to serve at such term there were but nineteen who had not previously 'and within two years performed jury service in the same court.</p> <p>6. -: -: -. It is the duty of the county commissioners, so far as practicable, to select the names of those against whom the objection of prior jury service can not be urged; but where five of those drawn and summoned to serve on the regular panel are disqualified to serve in a cause, if objection be interposed on that ground, this is no sufficient reason for sustaining a challenge to the entire panel.</p> <p>7. Intoxicating Liquor: Evidence: Analysis. Where there is evidence tending to prove that a liquor claimed to be intoxicating- was of the same kind and quality as that alleged to have been sold in violation of law, it is not error to admit the testimony of a witness who has analyzed such liquor as to its intoxicating properties.</p> <p>S. Instruction: Bequest: Review. Where no cautionary instruclion has been requested with reference to the consideration of the testimony of witnesses employed as detectives, a defendant can not predicate error because of the trial court’s failure to instruct the jury on that point.</p> <p>!>. Other Assignments. Other assignments of error examined, and found not well taken.</p> <p>10. Evidence: Verdict. Evidence examined, and found sufficient to support the verdict, of the jury.</p>

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

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

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

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

Error from the district court for Gage county. Tried below before Letton, J. The statements made in the death proofs are admissions of the beneficiary. New York Central Ins. Co. v. Watson, 23 Mich., 485. The rule that the proofs are not evidence in favor of the insured, does not preclude them from operating as admissions. New York Central Ins. Co. v. Watson, supra; Campbell v. Charter Oak Fire d Marine Ins. Co., 10 Allen [Mass.], 213.

<p>■ Error from tbe district court for Adams county. Tried below before-Beall, J.</p>

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

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

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

<p>1. Satisfaction of Judgment: Fraud: Motion: Independent Action. Where satisfaction of a judgment has been procured by fraud, the court may set the satisfaction aside .on motion, upon notice and proper showing by affidavit, unless rights of others not parties to the action have supervened or would be unduly affected, or the evidence is conflicting- on material questions of fact arising- upon the motion, in which cases the party seeking relief should be left to an independent action.</p> <p>2. Contract Lawful on Face: Good Faith: Intention: Fraud: Third Parties. A party who has entered into a contract lawful on its face, in good faith and for an honest purpose, is not precluded from relief because the other party may have intended to make fraudulent use of it as to a third person.</p> <p>3. Fraudulent Satisfaction: Relief: Settlement: Restoring Monet. The party applying for relief against a fraudulent satisfaction of a judgment should be required to put the other party in statu quo by restoring moneys paid to him under the settlement.</p> <p>4. Restitution: Application Upon Judgment. If the sum due such party has been finally determined by judgment so that no further judicial ascertainment of liability, or the amount thereof, is necessary, and it does not appear that the sum paid was exempt, or for some other special reason ought to be restored directly, application and credit upon the judgment is a sufficient restitution.</p>

<p>1. Injunction Bond: Recovery: Attorney Fees. Attorney’s fees incurred in an unsuccessful attempt to dissolve an injunction, on a motion made therefor before the final trial, are not a proper element of damage in a suit on the injunction bond.</p> <p>2. Counsel Pees: Element oe Damages: Ancillary Injunction. A recovery of counsel fees for the trial of a case will not he allowed as an element of damag'es for an injunction wrongfully obtained, if the injunction proceedings be only ancillary to the main case.</p>

<p>1. Payment Out of Particular Fund: Words of Transfer: Authority over Fund: Lien: Equitable Assignment. ■ A mere naked promise to pay an existing debt out of a particular fund, unaccompanied by any words of transfer, or the giving- of any power or authority over the fund, does not operate either to create a lien thereon or to work an equitable assignment thereof.</p> <p>2. Attorney’s Lien: Garnishment. The attorney for a defendant in an action in which the plaintiff has caused funds in the hands of a third party to be g-arnished, is not entitled to an attorney’s lien on the fund so g-arnished to secure his fee for services performed in the case.</p> <p>3. Intervention After Trial on Merits: Lien on Fund. L. intervened in an action between P. and H., claiming to be entitled to certain moneys attached in said action and paid into court, by reason of a lien thereon, and also because of a claimed equitable assignment thereof to him by the defendant prior to the attachment of the fund. Prior to his intervention judgment on the merits had been entered in the action in favor of the plaintiff therein, but no order had been made disposing of the money attached in the case and then in the hands of the court. Reid, That, even if L. had a right to intervene after a trial on the merits, he ■ could not, in the absence of a showing that he had a lien on the fund, or that the same had been assigned to him before the service of the attachment, be admitted to question the validity of the judgment or the proceedings leading up to its entry.</p>

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

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

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

<p>1. Statute: Unconstitutional Portion: Inducement to Adoption. Where portions of a statute are held unconstitutional, if the remainder is not so connected with such portion as to be incapable of separation, and the remainder is a complete act, and not dependent upon the part held invalid, the latter alone will be disregarded and the remainder upheld, except in cases where it is apparent that the rejected part was an inducement to the adoption of the remainder.</p> <p>3. Construction of Statute: Judicial Notice: Common Knowledge. In the construction of a statute, courts will take judicial notice of events which are generally known, and matters of common knowledge within the limits of their jurisdiction.</p> <p>3. Municipal Corporation: Power to Create: Power to Impose Limitations. The power to create a municipal corporation is vested in the legislature, and implies the power to create it with such limitations as that body may see fit to impose, and to impose such limitations at any stage of its existence.</p> <p>4. Eire and Police Commission: Legislature: Governor. The legislature may by statute confer upon the governor the power to appoint members of the board of fire and police commissioners of cities of the metropolitan class. State v. Moores, 55 Nebr., 480, overruled.</p> <p>Note. — Legislative Control Over Municipal Corporations. — A municipal coloration is, so far as its purely municipal relations are concerned, simply an agency of the state "for conducting the affairs of government, and as such is subject to the control of the legislature. Williams v. Eggleston, 170 U. S., 304.</p> <p>Cities are auxiliaries of the state in the business of municipal rule, but they can not have the least pretension to sustain their privileges or their existence upon anything like a contract between themselves and the legislature. Mt. Pleasant v. Beckwith, 100 U. S., 514.</p> <p>A municipal corporation is a public institution, created for public purposes, and is a political subdivision or department of the state, governed, regulated and constituted by public law. The original power to control- as well as to create them, is in the legislature. Payne v. Treadwell, 16 Cal., 220.</p> <p>Under the township system of New England, a much stronger argument can be advanced for local self-government than in a new state, like Nebraska, admitted since the adoption of the federal constitution. For example, Rhode Island, when it became a chartered colony, 1647, under the charter of March 14, 1643-4, was formed by the union of the four independent settlements of Providence, Newport, Portsmouth and Warwick. These settlements, at the time of the union under the charter, reserved the right to manag'e their own local affairs. When Rhode Island ratified the Federal Constitution, May 39, 1790, she did not follow the example of the other states by adopting a state constitution; but operated under the charter of 1663 until 1843, a period of 180 years. When new towns were incorporated, it was with the express statement that each new town had all the powers of the old towns. So local municipal government became a vested right. Encyclopedia Brittanica, vol. XX., p. 539; Harvard Law Review, February, 1900, 447. Note by Amasa M. Eaton, to City of Newport v. Horton, 50 L. R. A., 330. See, also, authorities cited in briefs and opinions (majority and minority), State v. Moores, 55 Nebr., 480.</p> <p>The power of the legislature over municipal corporations, in the absence of constitutional restrictions, is unlimited, except so far as they are invested with rights incident to a private corporation. David v. Portland Water Committee, 14 Ore., 98.</p> <p>A city is merely a revocable agency instituted by the state for the purpose of carrying otit in detail the objects of government. Coyle v. McIntire, 7 Houston [Del.], 44.</p> <p>The establishment of a board of police commissioners is not unconstitutional on the ground of interference with the right of the city to local self-g'overnment, so far as the appointment of a chief of police by said commissioners is concerned, since a police officer does not perform a purely municipal, but a state duty. City of Newport v. Norton, 50 L. R. A. [R. I.], 330.</p> <p>The right of a town to regulate its own finances and affairs superior to all legislative control, is not among the rights and privileges “derived from our ancestors,” to “define, secure, and perpetuate” which existed when the constitution of Connecticut was adopted, and to which its preamble refers. State v. Williams, 68 Conn., 131. See, also, People v. Draper, 15 N. Y., 532.</p> <p>People v. Hurlbut, 24 Mich., 44, is a construction of an express provision of the state constitution.</p> <p>The separate opinion of Judge Cooley in the case last cited, seems not to agree with the doctrine laid down in his work, Constitutional Limitations. Compare 34 Mich., ':;'93-*113, and Cooley, Constitutional Limitations [6th ed.], 337.</p> <p>The reasoning adopted by courts and text-writers, who uphold the doctrine of municipal self-government, would seem to have been derived from Rousseau’s Contra Social or Lewis Cass’s theory of popular sovereignty. See Maine, Ancient Law, pp. 89, 90. — Reporter.</p>

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

<p>Summons: Service: Private Person: Sheriff Defendant. A justice of the peace, in a proper casé, .may lawfully deputize a private person to serve a summons in replevin issued out of his court, though the defendant in the action may be a sheriff.</p>

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

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

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

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

<p>1. Bank Ckeck: Protest. A local bank elieck, which, has been indorsed by the payee, may be formally protested for non-acceptance or non-payment.</p> <p>2.-: Inland Bill. Bank checks are regarded as inland bills of exchange.</p> <p>3. -: Protest Fees. The fees of a notary public for protesting a bank cheek are recoverable against the drawer and drawee.</p>

<p>1. Great Bodily Injury. The words “great bodily injury,” as employed in section 176 of the Criminal Code, imply an injury of a graver and more serious character than an ordinary battery.</p> <p>2. --: Evidence. A conviction under said section 176 of the Criminal Code can not stand where the evidence fails to disclose that the accused malting the assault intended to inflict great bodily injury upon the person of the prosecuting' witness.</p> <p>3. Evidence: Rulings. Rulings upon the exclusion of answers propounded to the complaining party’s own witness on his examination in chief can not be reviewed where he has not made and preserved in the record an offer of proof.</p>

<p>1. Intoxicating Liquors: Possession Without License ob Permit: Locus In Quo: Presumption. The possession of intoxicating liquors by a person, without a license or permit, at a place other than a residence, is presumptive evidence that they were kept for sale in violation of law, and casts the burden upon such person to satisfactorily account for and explain the possession thereof.</p> <p>3. Whiskey: Beer: Intoxication: Presumption. Courts will take judicial notice that whiskey and beer are intoxicating.</p> <p>3. Instruction: Request, Error can not be predicated upon the failure to instruct upon a particular feature of a case, when the trial judge has not been requested to do so.</p> <p>4. Writing: Best Evidence. A writing is the best evidence of what it contains.</p> <p>5. Cross-Examination: Judicial Discretion. The scope of the cross-examination of a witness rests largely in the trial court, and its ruling will be upheld, unless an abuse of discretion is shown.</p> <p>Note. — There is no presumption of law that a liquor described simply as “beer” is a malt liquor. State v. Beswich, 13 R. I., 211. There is no presumption that a liquor so described is an intoxicating liquor. Blatz v. Rohrbacli, 116 N. Y., 450. Whether ale and cider are intoxicating liquors is a question for the jury. State v. Biddle, 54 N. II., 379. Ale and strong beer are included in the statutory term “strong- and spirituous liquors.” Revin v. Lad/ue, 3 Denio [N. Y.], 437. Lager beer is not included in the statutory term “spirituous and vinous liquors.” State v. Brindle, 28 la., 512. Where the defendant is prosecuted for an unlawful sale of intoxicating liquor, and upon the trial the evidence shows a sale of beer, under circumstances which would make the sale unlawful if the beer were intoxicating, it will be presumed the beer so sold was an intoxicating liquor. Stout v. State, 96 Ind., 407, cited in the foregoing opinion. The case of Revin v. Ladue, supra, contains a very learned review of the question by Chancellor Walworth, and the case is followed in Board of Excise v. Ereeoff, 17 How. Pr. [N. Y.], 442. — Reporter.</p>

<p>1. False Pretenses in Futuro. The obtaining of property by representations of what will happen in the future is not a crime.</p> <p>3. Information. The information charg-es sufficient facts to constitute the crime of obtaining property by means of false pretenses.</p> <p>.3. Juror: Challenge: Bill oe Exceptions. Evidence relating to challenges to jurors for cause and to the array can not be considered, unless settled and allowed by a bill of exceptions.</p> <p>4. False Pretenses: Material and Immaterial: Instruction. In a prosecution for obtaining property by several false pretenses, some of which are immaterial, the court should, by instructions, inform the jury which of the pretenses are material.</p>

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

<p>1. Judgment Entry: Entibe Record. To ascertain the meaning of a judgment entry it is always permissible to read it in the light of the entire record.</p> <p>3. Caption of Petition: Partners: Individuals. Where the caption of the petition gives the individual names of the members of a copartnership as defendants, and references in the pleadings, findings and judgment to the defendants are generally in the plural, the action will be held to be one against the individuals named, even though the petition charges that the plaintiff contracted with the defendants as partners.</p>

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

<p>1. Unlettered Person: Mark: Witness. By the common law the written evidence of the acts, compacts and engagements of unlettered men are properly attested by any mark, symbol or character which they may see fit to employ for that purpose.</p> <p>2. Judicial Appraisement: Mark. A judicial appraisement of land is signed within the meaning of the law (Code of Civil Procedure, sec. 491a) when it is attested by the mark of an illiterate person whose name thereto is subscribed by another.</p> <p>3. Appraisement: Certificate of Sheriff: Evidence. The certificate of the sheriff that he returned with the order of sale the appraisement made by himself and the freeholders is presumptive evidence that the fact stated is true.</p>

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

<p>1. Confirmation of Sale: Appeal: Receiver.. After a confirmation of sale of mortg-aged premises, and an appeal from sucIl order by the defendant, the trial court may, in a proper case, when necessary to protect the mortgagee’s interests, appoint a receiver to collect the rents pending- the determination of such appeal. Philadelphia Mortgage <£- Trust Oo. v. Qoos, 47 Nebr., 804.</p> <p>2.--: -: Supersedeas: Bill oe Exceptions: Transcript: Receiver. Where steps are instituted for the purpose of talcing an appeal from a final order of confirmation, the order having been superseded by the execution, approval and filing of a supersedeas bond, and a bill of exceptions and transcript was being • prepared, it would seem tlie trial court is authorized in a proper case to appoint a receiver as in a pending action, even though at the time the appeal has not been fully consummated.</p> <p>3. Mortgage Foreclosure: Receiver. In an action to foreclose a real estate mortgage, where the property pledged is insufficient to pay the debt, and the party primarily liable therefor is insolvent, the trial court is authorized on an application by the mortgag-ee to appoint a receiver for the mortgaged property; and in such case it is immaterial that a person who is solvent is liable for the debt as indorser or guarantor.</p> <p>4. Receiver: Appointment: Controversy: Conflicting Evidence: Finding of Fact: Reviewing Court. Where in a controversy over an application for the appointment of a receiver a question of fact on conflicting evidence arises, and is determined by the trial court, its finding thereon, when warranted by the evidence, will be followed in reviewing the case on appeal.</p>

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

<p>1. Summons: Pleading: Defendant: Name: Initials. Where a defendant is sued and summons served on her by her true full name, and she is also mentioned in the pleadings and summons by the initials of her given name, the court does not lose jurisdiction over her by dismissing the action as to the person named and desig-nated by the initial letters of the defendant’s given name.</p> <p>2. Appraisement: Motion to Vacate: Objections to Confirmation: General Appearance. A party appearing in a case for the purpose of moving' to vacate an appraisement of real estate for judicial sale and to interpose objections to the confirmation of sale on different grounds, not g'oing to the jurisdiction of the court over the party, thereby makes a general appearance for all purposes of the case.</p>

<p>1. Taxes; Lien: Foreclosure: Appraisement: Official Certificate. Where, for the purpose of appraising real estate to be sold in foreclosure proceedings, an application is made to the county and city treasurers for the amount of taxes which are liens against the property assessed, and it is certified by such officers that there, are no unpaid taxes or unredeemed tax sales, except for certain years, naming them and the aggregate amount of taxes, this is equivalent to certifying that such taxes were unpaid and constituted a lien on the land, and was sufficient evidence to authorize the appraisers to deduct the amount thus certified to from the gross appraisement of the land.</p> <p>2. Lien: Levy: Appraisement: Official Certificate: Seal. Section 491e of the Code of Civil Procedure requires certain designated officers to certify, under their hands and official seals, the amount and character of all liens appearing of record against real estate levied on, which are prior to the lien of such levy. Some of the officers designated in said statute are by law required to have an official seal; others are not. Held, That it was not the intention of the legislature that such officers as are not by law required to have an official seal shall certify to such liens under an official seal, but that a certificate under the hand of such an officer is sufficient. Oreutt v. Polsley, 59 Nebr., 575.</p> <p>■ 3. Tax Lien: Certificate: Judicial Sale: Appraisement: Review. Harmless irregularities in certifying to tax liens against property appraised for judicial sale, not prejudicial to the rig-hts of the party complaining-, are not sufficient g-round to set aside a judicial sale.</p> <p>4. Deputy Sheriff: Appraisement: Has Authority of His Principal. A deputy sheriff may assist in the appraisement of lands sold under an order of sale issued in pursuance of a decree of foreclosure addressed to the sheriff, conduct the sale, or do any other act thereunder required of or which might be performed by his principal in the execution of the mandate of the court.</p> <p>5. Foreclosure: Confirmation: Order of Sale: Return. A foreclosure sale should be confirmed, notwithstanding the order of sale issued by the clerk of the district court to the sheriff or other officer, directing him to execute the decrees, be returned more than sixty days from its date. Amoskeag Buvvngs Bank v. Robbins, 53 Nebr., 776.</p> <p>6. Foreclosure: Order oí' Sauk: Decree: Sheriff’s Authority. In an action to foreclose a real estate mortgage the sheri fE’s authority to sell the mortgaged property is derived from the decree of foreclosure, and not from the order of sale issued by the clerk of the court. Passmnpsie Samnffs Bank v. Maiilick, 60 Nebr., 469.</p>

<p>1. Deputy Sheriff: Foreclosure Sale. A deputy sheriff may assist iu the appraisement of lands sold under an order of sale addressed to the sheriff, and issued in pursuance of a decree of foreclosure, conduct the sale, or do any other act thereunder required of or which might be performed by his principal in the execution of the mandate of the court.</p> <p>2. -: -: Appraisement. Where the appraisal shows that it was made by “John McDonald, Sheriff, by Geo. W. Hill, Deputy,” ■and two other appraisers, this is sufficient to show that the appraisement made was the personal act of the deputy in conjunction with the other two appraisers.</p>

Error from the district court for Dodge county. Tried below before Marshall, J. Tbe defendant answered, proceeded to trial and speculated as to a verdict. When the finding was adverse he asked for judgment non obstante veredicto, on the gronnd that the petition was open to a general demurrer. A court would hardly look with favor upon such practice. Mutual promises of marriage do not come within the statute of frauds.

<p>1. Police: Pibe Department. “The membership of either the police or fire department may be reduced by the board on economic grounds, and in such case men may be dismissed from the service without a hearing and without an opportunity being given them to show cause against the order of dismissal.” Moores v. State, 54 Nebr., 486.</p> <p>2. Evidence: Review. Judgment of the trial court will not be disturbed because contrary to the evidence, unless clearly wrong.</p>

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

Heard below before Sullivan, J. Action by the Nebraska National Bank and others against Florentius M. Hallowell and others, with which other actions against the same defendants were consolidated, and in which certain creditors of such defendants intervened to set aside certain fraudulent conveyances and for other relief.

<p>1. Replevin: Affidavit: Appeal. One who files an affidavit in replevin in justice court, upon which the writ is issued, need not, on appeal in district court, file a second affidavit, unless by way of amendment.</p> <p>2. -: -: Change of Cause of Action: Order to Strike. Affidavit filed by leave of district court examined, and held not to change cause of action, and the order of trial court striking it from the files held erroneous. Sullivan, J., dissenting.</p>

<p>1. Equity: Ejectment: Jury. The objection that an action which is begun in equity should have been in ejectment and tried by-jury, must be made before trial. It is too late to raise that question for the first time after the cause has been appealed to this court.</p> <p>3. Deed: Description: Accretions: Meander-Line. A deed which describes land conveyed as “all accretions of lands and parcels of lands belonging to government lot number ten (10) in section number one (1) in township number fifteen (IS) north, range number thirteen (13) east; said accretions lying south of the meander-line of the state of Nebraska, according to the government survey,” is not void for uncertainty of description.</p> <p>3. Accretion: Missouri Biver. The law of accretion applies to the Missouri river, notwithstanding that, owing to the swiftness of its current and the softness of its banks, the changes are more rapid and extensive than in most other rivers. Nebraska v. Iowa, 143 TJ. S., 359, 12 Sup. Ct. Bep., 396.</p> <p>4. Official Plat: Government Survey: Kiver-Boundary: Patent: Deeds. Where the official plat of the survey of government lands shows a river as one boundary of a certain lot, a subsequent patent for the lot, describing it by number, and referring to the plat on which it is marked as containing- a certain amount, and deeds, describing the lot by number, passes all accretion to the lot up to their respective dates. Jefferis v. Mast Omaha Land Oo., 134 U. S., 178, 10 Sup. Ct. Kep., 518.</p>

<p>Error from tbe district court- for Douglas county. Heard belotv before Baxter, J.</p>

Error from the district court for Lancaster county. Tried below before Holmes, J. It is against public policy to permit the appointing officer or board to exact of an appointee, as a condition of appointment to office, surrender of any right, privilege or emolument appertaining thereto. The appointee is not bound by any agreement so exacted, but is entitled to collect the full salary notwithstanding. Such a contract amounts to bribery in its largest sense.

<p>1. Constitutional Hule of Uniformity. The constitutional rule of uniformity is not violated if all courts of the same grade have jurisdiction of the same matters and equal authority in dealing with them. State v. Magney, 52 Nebr., 508, followed.</p> <p>2. Constitutional Law: Statutory Provisions: Separable and Inseparable Section: Substance. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be distinct and separable, so that the first may stand, though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance. State v. Stuht, 52 Nebr., 209, 217; followed.</p> <p>3. Police Magistrate: Constitution. Held, That the various provisions of the statutes conferring jurisdiction on police magistrates are not in violation of the provisions of section 19, article 6 of the constitution, and are valid.</p>

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

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

Heard below before Scott, J. Action by ■ John W. McDonald, sheriff, against the Merchants’ National Bank of Omaha, consolidated with other actions for the distribution of the assets of the Hobrecker Stove Company.

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

<p>1. Damages: Malicious Prosecution. Damages are recoverable for the prosecution, maliciously and without probable cause, of a civil action in which there has been no restraint of the person or seizure of property.</p> <p>3. Instruction. An instruction which submits to the jury an inquiry of fact concerning which there is no evidence, is reversable error.</p> <p>Error from the district court for Lancaster county. Tried below before Tuttle, J. Reversed.</p>

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

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

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

<p>1. Taxes: Constitutional Limit: Illegal. Taxes levied in excess of the constitutional limit, are for an illegal and unauthorized purpose and are void.</p> <p>S.-: -: -: Protest. One paying taxes in excess of the constitutional limit, may recover such excess in an action at law, although such taxes were not paid under protest.</p>

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

<p>1. Preponderance of Evidence: Number of Witnesses. The preponderance of evidence is not determined alone by the greater number of witnesses who testify .in favor of a party.</p> <p>2. Appraisement: Conflicting: Evidence. The finding of the trial court, upon conflicting evidence, that an appraisement of real property for judicial sale was fair will ordinarily be sustained on review.</p>

<p>Appeal from the distrct court for Dawson county. Heard below before Westover, J..</p>

Heard below before Sullivan, J. Affirmed. Under tlie common law, a freehold estate must be either an estate for life or an estate of inheritance. 4 Kent [12th ed.], pp. 23, 24. A mere contingent interest, like the one in this case, has no attribute of a freehold,

<p>1. Foreclosure: Proof: Petition: Proceedings at Law: Issue: Answer. In a suit to foreclose a real estate mortgage, plaintiff is not entitled to relief without proof to support the averment of his petition that no suit or proceeding at law has been had to recover the debt, or any part thereof, when such allegation is put in issue by the answer.</p> <p>2. Proceedings at Law: Evidence: Note: Mortgage. The introduction of the note and mortgage in evidence is not sufficient to sustain an allegation that no action at law has been instituted to collect the debt.</p>

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

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

<p>1. Judicial Sale: Amount: Notice. A judicial sale will not be set aside, merely because the notice of sale does uot state tRe amount due on the decree.</p> <p>3. Evidence: Review: Bill of Exceptions. Evidence will not be reviewed, where it is not disclosed that all the evidence adduced in the court below is contained in the bill of exceptions.</p>

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

<p>1. Revivor of Action: Administrator: Summons in Error. Where a cause is properly revived in this court in the name of the administrator of a deceased defendant in error, no summons in error is required to be served upon that administrator.</p> <p>2. Conditional Order of Revivor: Service. The serving of the conditional order of revivor, confers jurisdiction upon the substituted party.</p> <p>3. Summons in Error: Service: Attorney of Record. A summons in error may' properly be served upon the attorney of record in the trial court in the original case, though at the time of such service the defendant in error should be dead.</p> <p>Note. — Service of Appellate Process on Attorney. Under common law practice the attorney of record for the appellee in the trial court is his authorized agent to receive appellate process. 2 Ency. PI. & Pr., 222. “No attorney or solicitor can withdraw his name, after he has once entered it on the record, without the leave of the court. And while his name continues there, the adverse party has a right to treat him as the authorized attorney or solicitor, and the service of notice upon him is as valid as if served on the party himself. United States v. Ourry, 6 How. [U. S.], 106, 111. “Where an appellant, in ignorance of the death of the respondent, serves a notice of appeal on the attorney who has appeared for the latter, and the service is accepted by him, the appeal will not be dismissed on a motion made by the attorney who accepted the service, on the ground that the service was void, because made after the death of the respondent.” Moyle v. Landers, 75 Cal., 595. But see Hayne, New Trial & Appeal, sec. 210, p. 631; Sanehets v. Roach, 5 Cal., 248; Judson v. Love, 35 Cal., 463; Shaiteer v. Love, 40 Cal., 93; Sheldon v. Dalton, 57 Cal., 19; Warren v. Eddy, 13 Abb. Pr. [N. Y.], 28. “Where, after the death of a party, notice of appeal from an order is served upon his attorney, the appellant can not object on motion of said attorney to dismiss appeal, that he has no standing in court because of the death of his client. Having called the attorney into court as the proper representative of the deceased, the appellant may not object to his being heard.” In re Beclmith, 90 N. Y., 667. — Reporter.</p>

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

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

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

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

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

<p>Error from tbe district court for Buffal: scanty. Tried below before Sullivan, J.</p> <p> Affirmed. </p>

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

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

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

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

Error from tbe district court for Dodge county. Tried below before Grimison, J. Section 3 of our Criminal Code clearly requires that the killing be intentional, in order to constitute murder in the first degree in any case. The opening phrase of the section, “If any person shall purposely,” applies to and qualifies each of the modes of killing mentioned in the section, the same as the first.

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

<p>1. Negligence: Hindering Creditors. Where circumstances show clearly that, notwithstanding defendant’s assertions of good faith, he was at least guilty of culpable negligence and was so placing his property as to hinder and delay the collection of his debts, under circumstances showing that by the exercise of any ordinary care he must have known this would be the result, the transaction will not be upheld when the other party participates in the fraud.</p> <p>3. -: —-•: Consideration: Pacts. Evidence examined, and held to show at least enough facts within defendant’s knowledge so .that good faith towards his creditors demanded that he make so much investigation as would have shown the worthlessness of the consideration he was receiving for his property.</p> <p>3. Action to Set Aside Conveyance: Insolvency: Return Nulla Bona. Where it appears clearly from the record that defendant is insolvent, and that executions have been returned against him unsatisfied, the fact that no execution has been issued on a judgment will not prevent an intervener from’ recovering upon it when conveyance is set aside in principal action.</p> <p>4. Fraudulent Grantee. Fraudulent grantees, who have disposed of the property conveyed to them, are chargeable as trustees on behalf of the grantor’s creditors.</p>

<p>1. Mill: Water-Power: Adjoining Landowners: Right oe Flow-age: Appurtenance. Where a mill is erected and a water-power obtained by the aid and co-operation of adjoining landowners, any right of ilowage over their premises of water for the mill arranged for and contemplated by the owners, as subscribers towards its construction, becomes appurtenant to the mill'.</p> <p>2. Waterflow: Encroachment Without Agreement. A subsequent use for less than ten years of real estate for ilowage of water by gradual encroachment without agreement with the owners, and without compensation to them, and not contemplated at the time of the subscription, will not create an interest in the real estate so flowed, nor establish an irrevocable license to so use it.</p> <p>3. Fee Title: Easement. Only a right to enjoy the privilege and no fee title nor right to exclude the owner, can, in any case, be established by mere user of a privilege of ilowage.</p>

<p>Mandamus: Bill of Exceptions: Matters in Judge’s Mind. Matters merely in the judge’s mind, and which were in no .way a part of the public proceedings at a hearing, are not properly a part of a bill of exceptions, and one who is refused a bill of exceptions unless such matters are incorporated is entitled to a writ of mandamus to compel the settling of a bill which shows the actual proceedings.</p>

<p>Appeal from the district court for Platte county. Tried below before Albert, J.</p> <p> Reversed. </p>

<p>1. Answer: Amendment: Discretion: Abuse: Prejudice. Jt. is within the discretion of the trial court to permit a defendant to amend his answer, and error can not be predicated npon it, nnless an abuse of discretion is shown, and prejudice resulting therefrom.</p> <p>3. Insurance: Policy: Condition. A condition in a life insurance policy that if, within three years from the date of the policy, the insured should die by suicide, sane or insane, the liability of the company should be limited to the amount of the premiums paid, is valid, and it is no answer to such a stipulation that the insured was insane, and unconscious of the moral and physical consequences .of the act which caused death.</p> <p>3. Evidence: Forfeiture: Waiver. Evidence examined, and held not to constitute a waiver of forfeiture in the policy.</p>

<p>1. Insanity: Non-Expert Witness. A non-expert witness may be permitted to state whether, in his opinion, a person is sane or insane, if he is shown to have had a more or less extended and intimate acquaintance with such person, and gives the facts and circumstances upon which the opinion is based; the weight to be given such testimony, being a question for the jury, to be considered by them in connection with the credibility and intelligence of the witness, and his opportunities for observation.</p> <p>2. Hearsay. The testimony of a witness as to a conversation had with, or declarations made by him to, others as to the sanity or insanity of a person is inadmissible on the question of insanity, on the ground that it is hearsay.</p> <p>3. Ejectment: Adverse Possession: Insanity of Ancestor. In an action of ejectment, where the defendant pleads adverse possession, and the plaintiff in reply pleads the insanity of his ancestor to defeat the statute, plaintiff must show by a preponderance of the evidence that his ancestor was insane with reference to the subject-matter of the controversy, and that, owing to the insanity, his ancestor allowed others to a.ssert title to his property, taking no precautions to protect the same, and that such insanity was continuous from the time defendant went into possession until a time less than ten years prior to the commencement of the action.</p> <p>4. Instructions. Instructions set out in the opinion examined, and 7teld not to present for the determination of the jury the material issue in the case.</p> <p>Note. — As to competency of opinion of non-expert expressed outside of court room, when such expression was a part of the transaction upon which the witness’s .opinion was based, see Guiteau’s Trial, Part I., pp. 444-447. — Reporter.</p>

<p>1. Promissory Note: Purchaser: Agency. Where one purchasing a note constitutes his assignor, who is the original payee named therein, his agent for the collection of both interest and principal, and such agent, in the exercise of such authority, does collect both interest and principal, the holder can not, after his agent’s failure to account, repudiate such agency, stand upon his rights as a bona-fide holder for value, and collect a second time from the maker, although the latter has paid the agent in the belief that he was still the holder of the note.</p> <p>2. Payment: Estoppel: Satisfaction. If the maker pay other than the rightful owner of the note, he can not rely on facts unknown to him, and not influencing his action, as an estoppel; but, if the money has reached the hands of an agent authorized to collect for the holder, such payment will be held a satisfaction of the debt.</p> <p>3. Evidence: Finding. Held, That the finding of the trial court that the maker paid to the authorized agent of the holder is sus- .. tained by the evidence.</p>

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

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

<p>1. building and Loan Contracts: Law oe This State. Contracts made in Nebraska, with residents of this state, by a foreign building and loan association, if made by agents of such associations within this state, are Nebraska contracts; and by their construction, validity and enforcement are governed by the laws of this state.</p> <p>2. Homestead Association: Usury. The provisions of the homestead association act of 1873, did not exempt foreign building and loan associations from the penalties of usury.</p>

<p>1. Insolvent Corporation: Preferring Creditor. An insolvent corporation can not prefer a debt on which its officers and directors are bound as sureties.</p> <p>2.-: -: Power of Receiver: Accounting. Directors of an insolvent corporation who turn over its property and assets to third persons for the purpose of preferring claims upon which such directors are personally liable as sureties may be required to account for such property and assets in an action by a receiver of the corporation appointed at' the instance of other creditors.</p> <p>3. Order Appointing a Receiver. An order appointing a receiver “of the property, effects, credits, and rig-hts of action of every character” of an insolvent corporation, and directing him to bring such action as may be. “necessary to enforce the payment of such debts and rights of action and for the recovery of the assets of such company,” sufficiently authorizes an action against the directors to hold them to account for property and assets disposed of by them in unlawfully preferring debts for which they were personally liable.</p>

<p>1. Error County Court to Supreme Court. The supreme court can not review the rulings of a county court directly, but can only review the judgment of a' district court rendered on error or appeal therefrom. Hence, where demurrers to each of several causes of action in a petition were sustained iu county court and such judgment was affirmed on error in the district court, gucere whether a petition in error in this court alleging error in the sustaining of said demurrers presents anything for review.</p> <p>2. Offer in Writing: Parol Acceptance. Parol acceptance of an offer in writing, does not give rise to an agreement or contract in wilting-, within the purview of section 11, Code of Civil Procedure.</p> <p>3. Written Order for Goods and Merchandise: Promise in Writing. If a written order for goods and merchandise makes no mention of price or terms, and contains no promise of payment, it does not become a promise in writing within the meaning of said section when the order is filled.</p> <p>4- '■ -• Even tliougli such order specifies price and terms and contains a promise of paymént, if it is not filled as made, a partial acceptance or acceptance varying its terms constitutes a new offer; and, a contract being created by receipt and retention of the goods delivered, the order does not constitute a promise in writing within the meaning of said section.</p>

<p>1. Mandamus: Axternatiye Writ. Issuance of a new alternative writ in mandamus proceedings, for the purpose of amendment under section 653, Code of Civil Procedure, does not amount to the commencement of a new action.</p> <p>2. Against Officer After Term Expired. Where the duty sought to be enforced by mandamus proceedings is imposed upon the respondent himself, and does not devolve upon his successor in office, so that the expiration of his term of office does not relieve him of the duty, the writ may issue after such term has expired.</p> <p>3. School Districts Within Municipality: License Money: Distribution. It is the plain meaning of section 28, chapter 80, Compiled Statutes, 1901, that, where portions of more than one school district are included in the corporate limits of a municipality, license moneys accruing- therein are to be distributed among- said districts in proportion to the number of persons of school age in the whole of each district, not merely in those portions of each district which are within the corporate limits.</p> <p>4. Construction: Constitution. Such construction is not repugnant to section 5, article S, of the state constitution.</p> <p>5. Village Treasurer: Distribution. A village treasurer who distributes license moneys among- school districts in whole or in part within the corporate limits in a different manner from that fixed by law, does so at his peril.</p>

Heard below before Letton, J. When confidential relations exist between the testator and legatee, snch as guardian and ward, attorney and client, physician and patient, religious adviser and layman, and the like, opportunities outside the family relation for unduly influencing the mind of a testator create a grave suspicion that such influence was exercised; so that whenever it appears that the will was executed through the intervention of one occupying such relation to his…

<p>1. Building and Loan Association: Loan: Deduction oe Premium: Competitive Bidding: By-Bidding. A building and loan association’ may deduct from a loan made to one of its members the premium bid for the right of precedence in taking such loan. Loans by the association must, however, be open to competitive bidding1, arid by-bidding by the officers or agents of the association for the purpose of increasing the premium to be paid for loans, will not be tolerated.</p> <p>2.-: Foreclosure oe Mortgage. In an action to foreclose a mortgage given to a building and loan association organized under the laws of this state, the fact that the association changed its method of making loans and conducting its business after the making of the mortgage is no defense to the action, especially in the absence of a showing that the mortgagor .objected thereto.</p>

<p>Action for Damages: Contract: Tort. In an action for damages, whether upon contract or for tort, compensatory damages can alone be recovered, and only such as are the probable, direct and approximate consequences of the wrong- complained of, and such as may fairly be supposed to have been within the contemplation of the accused party at the time the cause of action arose.</p>

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

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

<p>1. Petition: Demurrer. Petition examined, and held good as against a general demurrer.</p> <p>2. Motion. The remedy for argumentativeness in a pleading is by motion, and not by demurrer.</p> <p>3. Damages to Land: Railroad Embankment: Injury. An action by a landowner for damages resulting from the negligent construction of a road-bed or embankment by a railroad company does not accrue until such landowner sustains actual injury, and is not barred until four years from the date of such injury.</p> <p>4. Road-Bed: Ravine: Natural Watercourse: Damage. In the construction of a road-bed across a ravine, or other natural course of surface drainage, a railroad company is bound to provide, so far as is consistent with the safe and proper operation of its road, for the discharge of such water as naturally flows therein, and upon failure so to do, is liable for damages occasioned by such omission.</p> <p>5. Continuance: Abuse oe Discretion: Review. A judgment will not be reversed for a denial of an application for a continuance, unless it affirmatively appear that there was an abuse of discretion in denying such request.</p> <p>6. Submission to Jury: Estoptel. Where a question is submitted to the jury after a request in that behalf by a party to the suit, such party will not be heard to say that an adverse finding thereon is not sustained by sufficient evidence.</p>

<p>1. Evidence: Ownership: Allegation. Evidence examined, and held sufficient to support an allegation of general ownership.</p> <p>2. Contract: Sale: Personal Property: Attachment: Execution: Lien. Where a contract in writing whereby the transfer of title or ownership of personal property is made to depend on a condition is not filed, such omission is available only to such creditors as have perfected a lien on the property by the levy of an attachment or execution, while the vendee was in possession, unless it appear that they extended credit to the vendee on the faith of his apparent ownership.</p> <p>3. Conditional Contract: Vendos: Vendee: Creditors. Where a conditional contract of sale provides that the title shall remain in the vendor until the purchase price is paid, and that in ease of default he may retake the property and sell, and from the proceeds deduct the unpaid balance of the purchase price and pay the surplus to the vendee, and further provides that while the vendee is in possession he may sell the goods in the usual course of trade, and replenish the stock from time to time, held,, that where the latter provision has been fully executed, by the voluntary surrender of the stock, as thus replenished, to the vendor, neither the vendee nor creditors whose executions were levied subsequent to the surrender of the stock to the vendor will be heard to assail the validity of such provision.</p>

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

<p>3. U. S. Patent to Land: Prior Conveyance: Inuring Title: Estoppel by Deed. Where one entitled to a patent to land from the United States, but before it issues, conveys the land to another by deed purporting to convey the fee, and a patent ■ subsequently issues to such grantor for the land, he will not be heard to assert title under such patent, as against such grantee.</p> <p>2. Claiming Purchaser Without Notice: Facts: Care: Diligence. One claiming- as a purchaser without notice under the provisions of section 16, chapter 73, Compiled Statutes, is chargeable not only with notice of such facts as were known to him, but also with notice of such facts as he might have learned by the exercise of ordinary care and diligence.</p> <p>3. Title: Missing Link: Notice. Where an instrument constituting a link in the chain of title which a purchaser proposes to buy is lacking, and such purchaser buys without inspecting or demanding an inspection of such instrument or the record, where it is spread at length, as required by law, such purchaser is chargeable with notice of any fact appearing on the face of such instrument affecting its validity.</p> <p>4. Quia Timet. A party .out of possession may maintain a suit in equity to quiet the title to real estate. Tiayrs r. Nason, 54 Nebr., 143, followed.</p>

<p>1. Judicial Sale: Notice: Newspaper. Notice of a judicial sale is not invalid because the newspaper in which it was inserted, although published in the proper county, was partly printed outside of such county.</p> <p>2.-: -: Shebiee’s Return: Advertisement: Objection. Where a sale of land under a decree of foreclosure was advertised to take place on a certain day and hour, and the sheriff’s return shows that it was held at that time, an objection that there were other sales set for the same time will be of no avail.</p>

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

<p>1. Forcible Entry and Detainer: Appeal. Prior to 1901 there was in this state no valid statute authorizing an appeal from the judgment of a justice of the peace in an action for the forcible entry and detention, or forcible detention only, of real property.</p> <p>2. Derivative Jurisdiction: Consent. The jurisdiction of the district court in such actions, being derivative only, is not aided by consent of parties.</p>

<p>1. Intoxicating Liquors: Keeping: Gravamen: Information: Evidential Fact. In a prosecution under section 20, chapter 50, Compiled Statutes, 1901, the keeping- of intoxicating- liquors for sale without a license or permit is the gravamen of the offense, and the averment in the information that some of the liquors so kept were in fact sold- is only the needless statement of an evidential fact.</p> <p>2. Juror: Opinion. Where a juror has formed an opinion from reading newspaper accounts of the transactions in which a criminal •prosecution had its origin, he is not, for that reason alone, disqualified, and he may be permitted or required to serve if he declare on ■ oath that he will disregard such opinion altogether, and base his verdict, exclusively, upon the law and the evidence given at the trial.</p>

<p>Confirmation: Appeal: Appraisement: Fraud: Presumption.</p>

<p>1. Issue: Facts: Pleading: Error: Assignment. Facts not put in issue by the pleadings form no basis for an assignment of error on the ground of the insufficiency of the evidence to sustain a finding’ as to the existence of such facts.</p> <p>3. Conversion: Answer: Justification: Distress Warrant. Where, in an action for conversion, the answer admitted that the plaintiff was the owner and in possession of the property alleged to have been converted, and defendant sought to justify the seizure under a distress or tax warrant issued for delinquent personal taxes due from the plaintiff by the county treasurer, it is not available to defendant after trial to plead as error that the evidence was insufficient to show that the plaintiff was the owner and in possession of such property at the time of the alleged conversion, and was entitled to maintain such action.</p> <p>3. Distress Warrant: Good Faith: Trespass: Conversion: Damages. ■Where property has been taken in good faith, under a distress warrant for delinquent taxes, and sold and disposed of in such manner as to make the person acting under such warrant a trespasser, in a suit for conversion the measure of damage is the actual fair market value of the property converted, at the time of conversion, less the amount of the proceeds of the sale applied in satisfaction of the taxes owing by the plaintiff,</p> <p>4. Review. Sustaining- objections by trial court to certain questions asked ol! a witness .on cross-examination, held without, error.</p>

Original application for mandamus to compel respondent, as clerk of the district court for Cass county, to approve a supersedeas bond.

<p>1. Parish. Court of Louisiana: Jurisdiction: Collateral Attack: Petition: Allegations. The order .of a parish court of Louisiana, having jurisdiction to settle successions, will not be held void, when attacked collaterally, on the ground that the petition for administration does not allege that administration is necessary to pay debts, or that the succession is vacant, when the petition shows the death of the intestate within the parish, his intestacjr, the possession of property, and that the same is under $600 in valu'e.</p> <p>2. U. S. District Court: Transcript: Evidence: Journal: Signature oe Judge. The transcript of the proceedings and judgment of the United States district court, duly certified, is competent in evidence, although it fails to show that the presiding judge signed the journal record of the proceedings.</p>

<p>1. Note: Indorsement: Possession oe Note: Presumption. If a payee of a note makes an indorsement thereon to G., but delivers it to M., and M. brings action thereon, his possession of the note, with proof that he paid the payee therefor, will raise a presumption that the note was never delivered to G., and is sufficient prima facie evidence of M.’s ownership of the note.</p> <p>2. Usury: Intent. To make a contract usurious, there must be an agreement between the borrower and the lender by which the latter receives or reserves a greater rate of interest than the law allows. There must be an intent on the part of the borrower to give, and of the lender to receive, interest in excess ,of the legal limit. Rose v. Mwnford, 36 Nebr., 148.</p>

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

<p>Error from the district court for Douglas county. Tried below before Dickinson, J.- Heard on petition to revive.</p>

<p>1. Successive Mortgages: Recording: Evidence. Where several successive mortgages ’have been given to secure the same indebtedness, and only the last one has been recorded, several months after the making of the note, and credit meanwhile has been extended to the mortgagor, in a contest between the mortgagee and the creditor evidence is admissible as to all the transactions of the‘partías to the mortgage with regard to that indebtedness.</p> <p>3. Mortgage on Stock of Goods: Replevin. Where a mortgage has been taken upon a running stock of goods, expressly describing them as “goods .now in stock,” a mortgagee who has seized the stock by replevin from mortgagor should be required to account to the latter’s garnishing creditor for all goods actually seized, and which were not in the stock when mortgaged.</p>

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

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

<p>1. Code of Civil Procedure: Judgment eob. Delinquent Taxes. Section 11 of the Code of Civil Procedure, Ras no application to actions brought by the county treasurer for the recovery of - a judgment for delinquent personal taxes.</p> <p>2. County Treasurer: Delinquent Taxes: Civil Action. A civil action is maintainable by the county treasurer, upon order of the board of county commissioners, for the recovery of delinquent persona] taxes, under tbe provisions of an act approved March 1, 1883 (Session Laws, 1883, p. 380).</p>

<p>1. Judicial Sale: Appraisal. A'finding of the court, on the objection that the appraisment of property sold at judicial sale is too low, based on a conflict of evidence, will not be disturbed or reviewed, unless the evidence clearly shows that there was fraud in the appraisement. Nebraska Loan & Building Ass’n v. Marshall, 51 Nebr., 534, approved and followed.</p> <p>2. Decree of Confirmation. Decree examined, ard held to be in the usual form, and in substantial compliance with the statutes.</p> <p>3. Revenue Stamp. Seld, That, imder the rulings of the internal revenue department, it was- not necessary to attach an internal revenue stamp to the copy of the sheriff’s certificate showing that the appraisers were resident freeholders, that such certificate was admissible in evidence, and was sufficient to sustain the decree confirming the sale.</p>

<p>1. Stare Decisis. State v. Aitlcen, 61 Nebr., 490, followed in a case of the same nature.</p> <p>2. Mandamus: Affidavit. The affidavit in support of a motion for a writ of mandamus, must be sworn to positively and not merely upon information and belief.</p> <p>3. -: -: Amendment. Verification upon information and belief in such a case, is an informality which may be cured by an amendment under section 653, Code Civil Procedure.</p> <p>4. Application: Affidavit of Another. Where an application for a writ of mandamus by a public corporation is defectively verified by one of the officers of the corporation, an affidavit of another • officer thereof, testifying positively to the essential facts . alleged, may be treated as an amendment, within the meaning of said section.</p>

<p>1. Demurrer Ore Tenus: Construction. Where a petition assailed for the first time by a demurrer ore tenus, interposed at the close of the testimony, it will be. construed liberally and in the lig-ht of the entire record.</p> <p>3. Construction of Petition: Answer. Where, from the nature of the answer and the testimony adduced, it appears that both parties have placed the same construction on a petition, the court should not ignore such construction in passing on such demurrer, even though the petition standing- alone might not admit of such construction.</p> <p>3. Agent: Attorney: Negotiable Paper: Payment: Draft: Indorsement: Implied Authority. Ordinarily an agent or attorney has no implied authority to bind his principal by the indorsement of negotiable paper, but an attorney who has authority to collect a claim from a corporation, and who. in the adjustment thereof, receives a draft from the adjusting agent of such corporation, drawn on the paying ag-ent thereof, for the amount of such claim, has implied authority to bind his principal by an indorsement of such draft, made to enable him to receive the amount due thereon.</p>

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

<p>1. Sidewalks: Repairs: Constitution: Police Power. A statute imposing upon lot owners in a city the duty of repairing sidewalks in the public streets adjacent to their premises, violates no provision of the constitution and is a legitimate exercise of the police power of the state.</p> <p>S. -: Ioe and Snow: Public Benefit. The duty to keep sidewalks in repair and free from snow and ice, prescribed by subdivision 6, section 67, of the Lincoln charter (Compiled Statutes, 1895, ch. 13a, art. 1), is imposed primarily for the benefit of the general public, but ultimately for the advantage of the city.</p> <p>3.-: Repairs: Liability of Owner. When a duty to repair an adjacent sidewalk is lawfully imposed upon a property owner, he is liable, according to the intention of the legislature, for all damages résulting from a failure or refusal to perform that duty.</p> <p>.4. Legislature: Statute. In determining the intention of the legislatnre, all provisions of the statute bearing upon the point in dispute should be taken into consideration and given due weight.</p> <p>5. Mayor and Council: Street Commisstoxer: .Trims wot row. Statutory provisions giving' ilie mayor and council and street commissioner c.otnx>lete jurisdiction and control over streets and sidewalks, requiring abutting lot owners to build and rex>air sidewalks in accordance with notice'from the city authorities, and making such owners 'liable for all damages resulting from defective walks, construed, and held not to impose on abutters an absolute duty to repair on their own motion, but only a duty to repair after being notified so to do by said authorities.</p>

<p>1. Petition: General Demurrer: Error Procedure: Failure of Defendant to Appear. When a general demurrer to a petition has been sustained, and a review of the ruling thereon sought by error proceedings, and the party interposing the demurrer fails to appear in this court or point out the defects in the, petition relied on to sustain the demurrer, a searching examination and critical analysis will not be made in order to find a defect in the petition rendering it vulnerable to such demurrer.</p> <p>3. Tax Sale: General Revenue: Certificate. A sale of real estate for delinquent taxes for general revenue purposes, made by a county treasurer, and the issuance of a tax-sale certificate therefor, raises a legal presumption that such taxes have been regularly and legally levied and assessed and the sale made in the manner provided by law-</p> <p>3. Petition. Petition in the case at bar, examined and 'held to state a cause of action.</p>

<p>1. Judicial Sale: Appraisement: Challenge eor Fraud. An ap- ■ praisement duly made of real estate for the purposes of a judicial sale, can not be successfully attacked solely on the ground that the property has been appraised toa low. To make the low valuation a successful ground of attack on the appraisement, it must be challenged for fraud. Brown v. Mts:patricio, 56 Nebr., 61.</p> <p>3.-: Equitable Powers: New Sale: Two-Thirds oe Appraised Value. A district court, in the exercise of its equitable powers, has authority to set aside a sale of real estate made in foreclosure proceedings, and direct a new one, if the property has been sold for a sum manifestly inadequate, notwithstanding it was sold for more than two-thirds of its appraised'value.</p> <p>3. Appraisement: Mistake as to Value. An order of confirmation will not be set aside solely on the ground that the appraisers of the real estate sold were mistaken as to its value.</p>

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

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

<p>1. Secundum Allegata et Probata. Recovery must in all cases be secundum allajata et pruituta.</p> <p>2. Petition: Reply: Findings. Allegations of a reply are to be considered in connection with the petition, and if the whole taken together is inconsistent with the findings of the trial court, the latter can not be sustained. Paragraph 3 of syllabus to former opinion in this case, so far modified.</p> <p>3. Sale of Homestead: Acknowledgment. Where a contract for the sale of a family homestead is not acknowledged by the vendors, it is not enforceable specifically agninst them, and, consequently, can not, while it remains in that condition, be enforced specifically against the .other party.</p>

<p>1. Corporation: Foreman: Allegation: Authority: Evidence: Objection. Alleg-ation that defendant corporation did certain things by its foreman is a sufficient allegation of the latter’s authority, as ag-ainst an objection to all evidence at the trial.</p> <p>2. --: -: Fellow-Servant: Negligence. Negligent act of a foreman, with g'enera-1 control and authority to employ and discharge workmen, in ordering a subject workman upon an elevator, and himiself1 operating the elevator with negligence, to - the workman’s injury, held, properly regarded by the trial court as not the act of a fellow-servant but of a vice-principal.</p> <p>3. Instruction: Answer: Lameness. Instruction that defendant’s answer denied lameness of plaintiff, where answer really denied that it was caused by defendant, and by the means alleged, held prejudicial error, where there was evidence tending to show a previously existing lameness.</p> <p>4. Refusal of Instruction: Damage: Evidence. Refusal of instruction to effect that defendant was not responsible for damage caused by want of reasonable care on plaintiff’s part after the alleged injury, held erroneous, where evidence had been admitted, without .objection, tending to show that plaintiff’s condition, expense, and suffering were in part due to his failure to exercise reasonable care after the hurt received.</p>

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

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

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

<p>1. Promissory Note: Collection:- Agency of Assignor: Payment: Bona-Fide Holder for Value. Where one purchasing a note, constitutes his assignor, who is the original payee named therein, his agent for the collection of both interest and principal, and such agent, in the exercise of such authority, does collect both interest and principal, the holder can not, after Ms agent’s failure to account, repudiate such agency, stand upon Ms rights as a bona-fide holder for value, and collect a second time from the maker, although the latter has paid the agent in the belief that he was still the holder of the note.</p> <p>2. --:-: Estoppel: Satisfaction of Debt. If the maker pay other than the rightful owner of the note, he can not rely on facts unknown to him and not influencing Ms action, as an estoppel; hut, if the money has reached the hands of an agent authorized to collect for the holder, such payment will be held a satisfaction of the debt.</p> <p>3. Evidence: Finding. Held, That the finding of the trial court that the maker paid to the authorized agent of the holder is sustained by the evidence.</p>

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

<p>1. Depository Bond: Continuing Liability. Under the terms of the statute providing for the depositing of public funds by the county treasurer in depository banks, a depository bond of such bank is a continuing liability, which can be discharged only by the paying-out of the funds deposited on account of the giving of the bond.</p> <p>3. -: -: Check. An outgoing county treasurer delivered to his successor two checks in lieu of cash, aggregating $10,000, and covering that sum of money deposited in a bank which had qualified under the law as a depository of county funds, and took such checks to the bank and had them certified, instead of drawing out the cash, after which the bank failed. Held, that this transaction did not amount to a redeposit of the funds as a general deposit, and that the liability of the bank upon its depository bond continued.</p>

<p>1. Appeal: Record: Pleading: Evidence. Upon appeal in an action in equity, this court must take the evidence as it is in the record, and determine whether the decree appealed from can be supported upon the pleading's and evidence as taken in the lower court.</p> <p>3. Corporation: Members: Right oe Minority. A minority of the members of a corporation organized under the act of 1883, entitled “An act for the incorporation of churches and parishes and religious societies,” have no right to retain possession of the corporate property, as against the corporation itself, for the purpose of compelling the corporation to recognize their rights as members.</p> <p>Note. — Church.—Society.—Corporation.—Congregation.—Parish.—Devise. —Schism.—Church Property. — It is, we think, a matter of common observation that the terms “church” and “society” are popularly used to express the same thing, namely, a religious body organized to sustain public worship. Society v. Hatch, 48 N. H., 393, 396.</p> <p>A statute prescribed that it should be lawful for the male persons belonging’ to any “church” to choose the trustees. The whole statute has reference to religious associations. A church (ecclesia) may be, first, a temple or building consecrated to the honor of God and religion; or, second, an assembly of persons united by the profession .of the same Christian faith, met together for religious worship. These give the legal, though the word has many popular definitions. In the statute, to which reference has been made, it appears to be used in the sense of the second of the foregoing definitions. Robertson v. Bullions, 9 Barb. [N. Y.], 64, 95, affirmed 11 N. Y., 243.</p> <p>In one sense (and the common sense) the word “church” is understood to mean a number of Christian persons, agreeing- in their faith, usually assembling- together at one place, for purposes of worship— submitting to its ordinances, and receiving its sacraments. This is entirely distinct in meaning- from the word “church” as applied to a •corporation. In the former sense of the word, many persons are usually members of the church, and most commonly a. large majority, who neither are or can be members .of the corporation, — married women, infants, etc. When persons are incorporated by the name'of “church,” this can be regarded only as a name of designation, or at most, as indicating, when property is given to them, the trusts upon which it is given. Wilson v. Presbyterian Olmreh, 2 Rich. Eq. [S. Car.], 192, 198.</p> <p>Distinction between congregation and church pointed out in First Baptist Olmreh v. Wetherell, 3 Pai. Ch. [N. Y.], 296, 301.</p> <p>Where a testator devised his estate to the Protestant Episcopal church in New Canaan, parole evidence wáá held admissible to show that the terms “church” and “parish” were by this denomination of Christians used indiscriminately, and in the same sense as society. Ayres v. Weed, 16 Conn., 291.</p> <p>For meaning of paroehia, or parish, see Baker v. Pales, 16 Mass., 487, 498.</p> <p>“As between two opposing factions of a religious association, land acquired, by the association before any schism arose will be adjudged the property of that faction which abides by the doctrines, principles and rules of church government which the united body professed when the property was acquired.” Reorganized Olmreh of Jesus Ghrist of Latter Day Saints v. Olmreh of Christ, 60 Fed. Rep., 937.— Repobteb.</p>

<p>Ejectment: Peiob Equity Action. An action in ejectment can not be maintained during the pendency of a prior action in equity between the same parties, in which plaintiff alleges that defendant wrongfully withholds possession of the same property from the plaintiff, and asks to enjoin the defendant from excluding-the plaintiff therefrom.</p>

<p>1. Special Appearance: Jurisdiction: Waiver. If a defendant claims that the court has acquired no jurisdiction over his person, by reason of defects or irregularities in the process, or service thereof, his course is by special appearance and objections to tne jurisdiction; and if he goes further, and enters a g-eneral appearance, or invokes the powers of the court for any other purpose than quashing the pretended process, or service thereof, the defects are waived.</p> <p>3. Want of Jurisdiction: Answer. But where for some reason the defendant is privileged from suit in the county where or at the time when he is sued, he may set up want of jurisdiction of his person by answer, along with any other defenses he may have, without first making a special appearance or preliminary objections.</p> <p>3. -: -: Amended Answer. In such case he must plead the want of jurisdiction as soon as called upon to answer. If he answers without so doing-, he can not afterwards make the defense in an amended answer.</p> <p>4. Promissory Mote: Accommodation: Defense: Payee: Indorsee. That a promissory note was executed by way .of accommodation is a good defense as ag-ainst the payee, but not as against the indorsee, from whom money was obtained by virtue thereof, even though he had notice of the relation of the parties to each other.</p> <p>5. -: -: Consideration. Where money is advanced upon the representation and in the expectation that a person named will sign a note given therefor, and he afterwards does so, there is sufficient consideration as to the latter.</p> <p>6. Joint Enterprise: Statements of One Party: Evidence. Statements of one of the parties to a joint enterprise, made while borrowing money to be used, and which was used in such enterprise, are admissible ag-ainst the other parties thereto so far as they form a part of the transaction.</p> <p>Note.. — Section 96, Code of Oivil Proced/wre. — Misjovnder.—Defect of Parties. — Jurisdiction.— General Demurrer. — Misjoinder .of causes of action must be taken advantage of by answer or demurrer, otherwise it is waived. Claire v. Claire, 10 Nebr., 34, 56. An answer filed is a waiver .of an exception to the overruling of a special demurrer. Cox v. Peoria Mfg. Co., 42 Nebr., 660. A demurrer on the ground of defect of parties, is waived by an answer. Lederer v. Union Savings Bcmlc, 52 Nebr., 133. A defense of a defect of parties, can not be raised for the first time in the supreme court. Ayres v. Duggan, 57 Nebr., 750; Phenix Ins. Co. v. Rad Bila llora Lodge, 41 Nebr., 21, 23. The filing' of an answer, is not a waiver of the overruling of a general demurrer. Cox v. Peoria Mfg. Co., 42 Nebr., 660; Hopewell v. MeGrew, 50 Nebr., 789. The objection that the petition does not state a cause of action, may be raised even in the supreme court. Sage v. City of Plattsmouth, 48 Nebr., 558. Objection to jurisdiction not arising' on the summons, its service or indorsement, may be raised by answer. Herbert v. Wortendylce, 49 Nebr., 182. The plaintiff waives nothing by failing to object by answer or demurrer to a cross-petition which sets up a counterclaim. He may take advantage of such defect at any stage of the proceeding's. Brugman v. Burr, 30 Nebr., 406, 420. Failure to allege exclusive adverse possession, will be considered waived after judgment. Tourtelotte v. Pearce, 27 Nebr., 57, 62. Motion is the proper remedy for defects in form. Forbes v. Petty, 37 Nebr., 899. — Reporter.</p>

<p>Error fr.om the district court for Buffalo county. Tried below before Sullivan, J.</p>

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

<p>1. Judicial Sale: Appraisement: View. There is in the statute no requirement that an appraisement of land for the purposes of judicial sale shall be made upon the land, or in view of it.</p> <p>2. -: -: -: Presumption. There is no presumption against the fairness of an appraisement arising- from the fact that one .of the appraisers who lived near the land, and knew it well, did not go upon it on the day the appraisement was made.</p> <p>3. Notice of Sale. A notice of sale under a decree .of foreclosure, is not defective because it fails to state the amount due upon the mortgage as fixed by the decree. '</p> <p>4. Presumption: Sun Time: Oeeicial Action. The presumption, if any there be, that business is conducted according to sun time, will not overcome the presumption in favor of the regularity of official action.</p> <p>5. Foreclosure: Direction as to Sale: Sale En Masse: Contiguous Tracts. Where a decree _of foreclosure contains no direction as to the manner of selling the mortgaged property, error will not be presumed from the sale en masse of two contiguous tracts.</p>

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

<p>1. Homestead Bight: Waiver. The right of homestead is a personal privilege, and will be deemed waived, unless asserted before a sale of the premises, where those entitled to claim the right ' have been parties to the proceedings resulting in the sale, where those proceedings have been adversary in their character, and where there has been an opportunity to assert the right of homestead. Brownell v. Stoddard, 42 Nebr., 177.</p> <p>2. Decree of Foreclosure: Appraisement: Deducting Lien: Purchaser and Grantee Estopped. Where land is sold in pursuance of a decree of foreclosure, and in the appraisement a judgment lien thereon is deducted as a prior incumbrance, and the mortg’agee purchases the land at the sale subject to such judgment lien, neither he nor his grantee can be heard to question the validity of such lien, and the land may be resold on execution in satisfaction of such lien.</p> <p>3. Sale: Conpirmation: Wipe op Mortgagee: Deed prom Mortgagors: Homestead Exemption: Lien Deducted. After sale, and before confirmation, the wife of the mortgagee obtained a deed of the mortgaged premises from the mortgagors, who occupied it as a homestead. The sale under the decree after-wards being confirmed, and the mortgagers’ title thereby divested, held, that such transaction did not change the rule, and that the mortgagee, as purchaser at the judicial sale, and his grantee, could not, for that reason, be heard to assert th^ homestead exemption of the mortgagors to defeat the judgment lien deducted in the appraisement from the value of the premises as a prior incumbrance.</p> <p>4. Joint Petition in Error: Assignments. Where a joint petition in error is prosecuted by two plaintiffs, and the assignments of error can not be sustained as to each, they must be overruled as to both.</p>

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

<p>War-Revenue Stamp: Certificate of Appraisal. The war-revenue act of 1898, does not require the attaching of a revenue standi to the certificate of appraisal made by a sheriff in the execution of a decree for the sale of real estate ordered by the district court in a foreclosure action.</p>

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

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

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

Original application for a writ of mandamus to compel the respondent to vacate a restraining order allowed in a certain action, and to proceed to a hearing in said action in accordance with a mandate issued by this court. Sullivan, C. J., dissenting.

<p>1. Law of the Case. It is a settled rule in this court that a legal principle involved in the trial of a case, when once determined, becomes thereafter the law of the case, binding, not only upon the trial court, but this court as well, and will not, ordinarily, be re-examined in a subsequent review of the proceedings of an inferior court had in the further trial of the action. Missouri P. B. Go. v. Fox, 60 Nebr., 531.</p> <p>2. Second Appeal. No new question being presented on the second appeal, the decree of the district court is affirmed.</p>

<p>1. Appeal: Death oe Party: Heirs: Party to Proceeding. When a party to an appellate proceeding- dies, and his interest in the litigation passes to his heirs, the heirs are necessary parties to the proceeding.</p> <p>2. Petition in Intervention: Motion to Strike: Plea. When a petition in intervention is, apon motion of one of the parties to the snit, stricken from the files, it is no longer a part of the issues in the case for any purpose, and it is not necessary for either party to plead thereto.</p> <p>3. Mechanic’s Lien: Foreclosure: Cross-Petition: Evidence. Upon a cross-petition to foreclose a mechanic’s lien, the verified account of items,, with proof of the amount of the claim, is not sufficient evidence to support a decree.</p>

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

<p>1. Foreclosure: Decree Upon Several Mortgages: Liens: Agreement: Validity. When decrees of foreclosure are entered upon several mortgages in the same action, and an order of sale is issued thereon, an agreement between the several mortgagees that the one holding the later lien shall buy the property at the sheriff’s sale under said order and pay the matured portion of the first mortgage, ■ and the unmatured portion thereof shall remain in full force, .is valid as against one who, with notice of such agreement, afterwards takes a mortgage from the holder of the later lien, who has purchased the property in pursuance of said agreement.</p> <p>2.-:-:-:-:-: Certificate of Satisfaction. A certificate of satisfaction of. said decrees, issued by the clerk of the court on his own motion, and filed in the office, of the register of deeds will not, in favor of one who, with notice of such agreement, takes a mortgage from such purchasér at sheriff’s sale, operate to cancel the first mortgage.</p> <p>3. Negotiable Note: Ownership: Possession: Prima Facie Evidence: Presumption. The possession of a note negotiable in form, the subject of the litigation, is prima facie proof of ownership, and the finding in a former action, before the note was due, that the note was then the property of a stranger to the present suit, will not overcome this presumption.</p> <p>4. Tax-Sale Certificate: Foreclosure: Certificates and Receipts: Prima Facie Evidence of Validity. In an action of foreclosure upon a tax-sale certificate and for prior and subsequent taxes paid by the holder'of the certificate, the certificate and receipts of the proper officer for prior and subsequent taxes are prim,a facie evidence of the validity of the taxes which they represent.</p>

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

<p>Stare Decisis. Opinion in Ure v. Reiehenberg, filed herewith, 63 Nebr., 899, followed.</p>