Volume 64 — Nebraska Reports

<p>Commissioner’s opinion, Department No. 1.</p> <p>1. Rathee: Lien: ' Agreement. “A lien does not attach in favor of a bathee of goods if inconsistent with the terms of the agreement, express or implied, under which his possession was obtained.” Moline, MiTburn & Stoddard Co. v. Wood Mowing & Reaping Machine Co., 49 Nebr., 869.</p> <p>2. -: -: -: Tenant. Agreement to permit tenant under an expiring lease to leave his goods m statu quo for an agreed sum of $10, payable monthly, with no right to retain goods to end of month, and no right to demand payment on removal reserved by the contract, creates no lien on the goods for unpaid storage.</p>

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

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

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

<p>Commissioner’s opinion, Department No. 2.</p> <p>1. Specific Appropriation: Constitution: Legislature. A specific appropriation “made by law,” within the meaning of section 22, article 3, of the constitution of the state of Nebraska, is an appropriation made either by direction of the constitution itself, or one made by the legislature under the forms and in the manner prescribed in the constitution for drawing money from the public treasury.</p> <p>2. Reporter of Supreme Court: Salary: Constitution: Special Legislative Enactment. The appropriation for the salary of the reporter and ex-officio clerk and librarian of the supreme court is made by section 25, article 16, of the constitution, and requires no special legislative enactment.</p>

<p>Commissioner’s opinion, Department No. 2.</p> <p>1. Misjoinder: Demurrer: Review. Rulings upon' demurrers for misjoinder of causes of action, will not be reviewed upon appeal.</p> <p>2. —;—: Answer: Misjoinder Also Plea to Merits. An answer setting up facts which go to show a misjoinder of causes of action, but are also material to the merits, no specific objection being made to the misjoinder, will not be taken to raise such defect.</p> <p>3. Certificate of Tax Sale: Presumptive Evidence: Burden of Proof. The county treasurer’s certificate of tax sale is presumptive evidence of a sale to the purchaser named therein, and the burden is upon defendants, who claim sale was made to some one else, to prove such fact.</p> <p>4. “Forthwith.” The word “forthwith” in section 111, article 1, chapter 77, Compthed Statutes, means as soon as the county treasurer, in the reasonable course of the orderly conduct of the business of his office, is prepared to receive and properly receipt for the moneys to be paid.</p> <p>S. Purchaser at Tax Sale: Delay in Payment. Delay of a purchaser at tax sale in paying to the treasurer the taxes and costs due on the land sold, owing solely to the large number of tracts of land to be sold, and inability of the treasurer, with the clerical . force at his disposal, to make the sale in its regular order at an earlier date, does not invalidate a sale otherwise entirely regular.</p>

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

<p>Commissioner’s opinion, Department No. 3.</p> <p>}. Insurance: Mutual Benefit: Delinquent Member: Reinstatement: Depositing Letter in Mail. The constitution of a mutual benefit association provided that a member suspended for the non-payment of dues and assessments might be reinstated by personally applying therefor and paying to the clerk of his camp all arrearages, and, if in good health, his reinstatement should take place and his certificate again become valid as soon as payment had been received and recorded by the clerk. If the delinquent member does not appear in person to pay his arrearages, he shall then send to the clerk a written statement on an official form to be furnished by the association, to the effect that he is in good health, as a condition precedent to reinstatement, and waiving all rights thereto if his written statement shall be found to be untrue. Held, That a suspended member signing the written statement provided for in the above rule, and -depositing the same in a letter-box, enclosed in an envelope stamped and addressed'to the clerk of the camp, had sufficiently complied with the requirements of the constitution above quoted, although the statement did not reach the clerk until after the death of the suspended member.</p> <p>2. Physician. A physician may testify that he was called to attend a patient, and to the number and dates of his professional visits, as these facts are not privtheged under section 333 of the Code of Civil Procedure.</p> <p>3. -: Waiver of Privthege: Cross-Examination. In a suit between the representative of a deceased person and an insurance company, the physician who attended the deceased in his last illness was called by the defendant, and testified to the fact of having attended the deceased, and to the time when first called, and some other matters relating thereto, but was not allowed to testify as to the condition of the deceased or the ailment from which he was suffering. The physician, at the request of the plaintiff, had given her a written statement to the effect that the deceased was not seriously sick until the evening previous to his death, and on his cross-examination the physician admitted making the statement, and the same was offered and admitted in evidence as a part of his cross-examination. Held, That this constituted a waiver of her privthege on the part of the plaintiff, and that the defendant should have been permitted to re-examine the physician as to the condition of his patient.</p> <p>4. Record: Board of Health: Privtheged Character. A record kept under the ordinances of a city for the evident purpose of assisting the board of health in the conduct of the affairs of that office, is not such a public record as to be entitled to admission in evidence to show the truth of the matters therein recited, and especially should it be rejected as evidence when offered to establish a fact which would not be admissible against a party because of its privtheged character.</p> <p>Note.—Privtheged Communications.—Physician and Patient.—At common law, the protection accorded to professional communications was not extended to physicians and surgeons, Taylor, 481. In recognition of the necessity for a full confidence between physician and patient, the legislatures of the following states and territories have extended the . privthege to communications between physician and patient: Arizona, Arkansas, California, Colorado, Idaho, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Utah, Washington, Wisconsin and Wyoming. The restrictive clause of the several states varies considerably. I believe that New York was the first state to pass such a law.' The New York statute reads: “A person duly authorized to practice physic or surg-ery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity and which was necessary to enable him to act in that capacity.” Code of Civil Procedure, par. 834. The restrictive clause that physician or surgeon “shall not be allowed to disclose,” etc., has been substantially copied by Iowa, Michigan, Pennsylvania and Nebraska. In Nebraska the physician and surgeon are placed in the same category with the attorney, minister and priest. Code of Civil Procedure, sec. 333. The New York statute will not protect communications of a confidential nature made to one not legally qualified to practice, even against the protest of his patient. Wiel v. Cowles, 45 Hun [N. Y.], 307. Hence one dealing with another purporting to be a physician and surgeon, is charged with knowledge of his disability. The several statutes of California, Colorado, Idaho, Minnesota, Nevada, North Dakota, Oreg-on, Utah and Washington, provide that the physician either shall not or can not be examined. The statute of Montana that he shall not he a loitness. The statute of Ohio that he shall not testify; and this restriction has been copied by Wyoming. The statutes of Indiana, Kansas and Missouri provide that a physician shall not be competent to testify to information professionally obtained, and this provision has been substantially copied in Oklahoma. The statutes of Arkansas, North Carolina and Wisconsin provide the physician shall not be required, or compelled, to testify.' Arkansas extends this protection to the “trained nurse,” whthe North Carolina, by a proviso, leaves the matter in the hands of the presiding judge. The statutes of California, Idaho, Minnesota, Montana, Oregon, Pennsylvania, Utah and Washington expressly restrict the application to civil cases. The statutes of Kansas, Nebraska, Nevada, Ohio, Oklahoma and Wyoming provide that the patient may waive the privthege and allow the witness to testify. As the privthege by these statutes is for the benefit of the patient, it is not impossible that courts might hold, as they have held in regard to attorneys, that this, like any personal privthege, might be waived in the absence of a statute. The mere fact that one is a licensed physician, does not, ipso facto, confer the privthege. The confidential relation must exist at the time the information is obtained. Jacobs v. Cross, 19 Minn., 523. The relation must not be presumed; it must be proved. People v. Schuyler, 106 N. Y., 298, 12 N. E. Rep., 783. It is not necessary to the existence of the relation that the patient 'himself summon the physician; the legal effect is the same if he be summoned by the attending physician, by the friends of the patient or by strangers. Renihan v. Dennin, 103 N. Y., 573. Where the public prosecutor sends a physician to examine a person upon whom a crime has been committed, for the purpose of obtaining evidence, and he treats the sufferer, the relation attaches and the physician is disqualified as a witness. People v. Murphy, 101 N. Y., 126. The same is true of a physician sent on a like errand by the defendant, in a suit for personal injuries. Weitz v. Mound City R. Co., 53 Mo. App., 39; Freel v. Market Street R. Co., 97 Cal., 40. It is otherwise when he visits the patient only for the purpose of information. Nesbit v. People, 19 Colo., 441, 36 Pac. Rep., 221; People v. Kemmler, 119 N. Y., 580. (The latter is the celebrated electrocution case.) The information which a .physician is forbidden to disclose, is not confined to communications made by the patient. But the restriction applies to all facts which necessarily come to a physician in a professional case. People v. Stout, 3 Parker’s Rep. [N. Y.], 670. This question has never been passed upon by the supreme court of Nebraska. But in the eighil judicial district of this state, at the November, 1897, term of district court for Cedar county, Evans, J., presiding, the case of Rawhouser v. Aukeny (bastardy) was tried, when the defendant offered as a witness one Augustus Hamilton, who, after qualifying as a physician, and testifying that he had been consulted by the prosecutrix and had made an examination, was asked what was the result of the examination with reference to her being pregnant. The question was objected to as calling for the result of a professional consultation and examination. The objection was sustained. The ruling was not assigned as error on review before the supreme court. To the same effect is Kelley v. Highfield, 15 Ore., 277; and in Indiana whose statute, like our own, uses the word “communication,” the supreme court “sets the seal of real secrecy and confidence upon what the physician observes in respect to the patient’s person.” Williams v. Johnson, 112 Ind., 273. There are certain communications outside professional privthege. Collins v. Mack, 31 Ark., 684. There is some disagreement amongst authorities as to whether a physician can testify with reference to his patient being drunk or sober. Linz v. Massachusetts Mutual Life Ins. Co., 8 Mo. App., 363; Kling v. City of Kansas, 27 Mo. App., 231. The former case allows of the physician so testifying; the latter forbids him to so testify. The rule of exclusion applies to testamentary capacity. Renihan v. Dennin, 103 N. Y., 573. Communications for the purpose of doing an unlawful act or committing a crime are not privtheged. People v. Lane, 101 Cal., 513, 36 Pac. Rep., 16; State v. Kidd, 89 Ia., 54; State v. Smith, 99 Ia., 26, 68 N. W. Rep., 428. A physician is not precluded from giving the number and dates of his professional visits. Briesenmeister v. Knights of Pythias, 81 Mich., 252; Dittrich v. City of Detroit, 98 Mich., 245, 57 N. W. Rep., 125. A physician took an unprofessional friend with him to attend a case of confinement. The doctor was sick and fatigued from overwork. The roads were so bad that a horse could neither be ridden nor driven over them. His nonprofessional friend reluctantly consented to go with him and assist in carrying the lantern, umbrella and obstetrical instruments. It was in midwinter. The house was 14x16 and had but one room. During the accouchement, the doctor’s companion conducted himself with great propriety, sitting with his face to the wall; and only once when the patient, in a labor-pain, had kicked a female assistant in the pit of the stomach, was he called to assist. He held one of her hands, but returned to his former position when the agony was past. The doctor did not disclose the non-professional character of his companion. The woman recovered in an. action on the case against both the doctor and his companion for “shame and mortification,” by this violation of professional confidence. De May v. Roberts, 46 Mich., 160-166.—Reporter.</p>

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

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

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

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

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

<p>Confirmation: Appeal.</p>

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

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

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

<p>1. Nunc-Bro-Tunc Order: Satisfactory Evidence: Better Evidence: Record. In deciding a motion for a nunc-pro-tunc order, the district court may act upon any satisfactory competent evidence in support thereof, although minutes of the proceedings, or other writing appearing in or among the records of the court are regarded as a better class of evidence.</p> <p>2. Evidence: Nunc-Pro-Tunq Entry. Evidence examined and held sufficient to support an order made to correct the journals by a nunc-pro-tunc entry.</p> <p>3. Motion for New Trial. A motion for a new trial must, in all cases, except for newly discovered evidence, be fthed at the term at which the finding or decision sought to be vacated by the motion is rendered.</p> <p>4. -: Overruled: Assignments of Error Unavailing. When a motion for a new trial is overruled, because not fthed within the time required by statute, all matters necessarily included therein as grounds for a new trial are unavailing on review by proceedings in error.</p>

<p>Bill of Exceptions: Quashed: Assignments: Verdict: Evidence: Motion to Quash. Where a bill of exceptions is quashed, and the only assignments of error relate to the introduction of evidence, and a general assignment that the judgment is contrary to the law and the evidence, the reviewing court will only inquire whether the pleadings will support the judment rendered.</p>

<p>1. Replevin: Fixtures: Mortgage Lien. A mortgagee of real estate can not, because of his mortgage lien, main lain an action in replevin for the possession of property removed from the mortgaged premises which he claims as fixtures to the realty.</p> <p>3. Purchase of Land: Third Parties: Notice of Title. A purchaser of land, with notice of title in third persons to buildings situated thereon, takes the real estate subject to the rights of such third parties in and to such structures.</p> <p>3. Freehold: Permanent Annexations: Intent. When it is evident that houses were intended as permanent annexations to the freehold, they become a part of the realty, and pass with a conveyance of it, and that without regard to the character of the foundations on which they'stand. Freeman v. LyneJi, 8 Nebr., 193.</p> <p>4. Building Used as Residence: Part of Freehold: Title: Claim of Ownership: Purchase of Building. A bona-fide grantee of real estate, without notice, on which is situated a building used as a residence and apparently a part of the freehold, will take title to the land, including such building, divested of a claim of ownership by a third party whose rights are based on an alleged purchase of such building from the grantor as chattel property.</p> <p>5. Petition in Error: Authentication: Typewritten Signature. A petition in error can not be treated as a nullity and entirely disregarded because authenticated in the name of plaintiff in error by her attorney, giving his name, each appearing only in typewriting.</p>

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

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

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

<p>Commissioner’s opinion, Department No. 1.</p> <p>1. Indemnity Bond: Recitals: Levy: Recovery. The fact that an indemnity bond recites that the officer has been directed to levy upon property of the judgment debtor, will not prevent a recovery, if he was actually directed to levy upon property of a third party, and does so at request of the principal in the bond.</p> <p>2. -: Condition: Payment of Judgment: Breach of Bond. Where a bond is conditioned to indemnify the officer against all “harm, trouble, damage, costs, suits, actions, judgments and executions” growing out of the levy, the payment by the officer, after its affirmance, of a judgment in conversion for taking the property, constitutes a new breach of the bond.</p> <p>3. Statute of Limitations. The statute of limitations does not run against an action for damages upon such breach until the statutory time after the payment.</p> <p>4. Surety: Payment of Conversion: Assignment of Judgment: Consideration. The fact that the funds for the payment of the conversion judgment were furnished by a surety on the officer’s bond as sheriff does not impeach an allegation that the officer paid it, and the furnishing of the funds is a sufficient consideration for an assignment of the indemnity to the officer’s surety.</p>

<p>Commissioner’s opinion, Department No. 1.</p> <p>1. Tendering Answer After Demurrer: Waiver. Tendering answer, and asking leave to fthe same, after the overruling of a demurrer to a petition, is a waiver of mere formal defects in the petition and of any irregularity in the time or manner of acting on the demurrer.</p> <p>2. Refusal of Leave to Fthe. Not error to refuse leave to fthe an answer setting up that the action was prematurely brought where the facts alleged were insufficient to sustain such plea.</p> <p>3. Life Insurance Policy: Proof of Death. Under a life insurance policy providing for payment in ninety days after satisfactory proof of death, an objection to such proofs, which in no way impeaches the sufficiency of the showing of the death of assured, but complains as to the condition of bis health, when first insured, shows no ground for delaying action more than ninety days after such proof was submitted.</p> <p>4. Default: Issue- of Law: Costs. Under section 432 of the Code of Civil Procedure, the court, on the determination of an issue of law, or when a party is in default, may, at the request of the party not in default, assess damages on proof without the intervention of a jury.</p>

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

<p>Commissioner’s opinion, Department No. 2.</p> <p>1. Brief: Argument: Instructions: Assignment of Error: Consideration. Where, in an argument and brief, error is assigned for giving and refusing a group of instructions and no reason is pointed out, or authorities cited, by or from which the court can determine the several questions involved in the assignment, the matter should receive no consideration.</p> <p>2. Faulty Answer: Reply: Request fob Instruction: Refusal. Where an answer is faulty, but is replied to and treated by the plaintiff as sufficient during the whole trial and proceedings, the court should refuse to instruct the jury, at plaintiff’s request, that certain of the facts alleged in the petition were not denied by such answer.</p> <p>3. Financial Worth: Honest Opinion: Liability. Where one gives an honest opinion as to the financial worth and standing of a third party, and as to whether or not such third party is entitled to credit, based on information, which information he imparts to the person maldng the inquiry at the time such opinion is given, the mere fact that he was mistaken in his opinion will not make him liable in an action for fraud and deceit, to one who acts thereon.</p> <p>4. Verdict. Where it is clear, from the law and the evidence, that the verdict returned by the jury is the only one which can be sustained in the case, it will not be set aside for errors occurring at the trial.</p>

<p>Commissioner’s opinion, Department No. 2.</p> <p>1. Judgment Creditor: Judgment: Execution. The right o£ a judgment creditor to take out an execution on his judgment,' is a substantial right; and this right can only be Liken away or suspended by some act, suit or proceeding tor this purpose in compliance with law.</p> <p>2. Judgment Lien: Statute: Execution. A judgment lien is created by statute, and is destroyed by statute if its provisions requiring the taking out of an execution are not complied with.</p> <p>3. Dormant Judgment: Revivor: Lien. When a dormant judgment is revived, it will operate as a lien only on the real estate which the judgment debtor may own at the time .of the revivor.</p>

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

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

<p>Commissioner’s opinion, Department No. 3.</p> <p>1. Preponderance of Evidence. Whthe proof by a preponderance of the evidence is all that is required of the plaintiff in any civil action, when a plaintiff seeks to overcome the presumption arising from the express terms of a conveyance and from the relations of the parties concerned therein, by parol evidence, much more certainty and conclusiveness are required than in ordinary cases.</p> <p>3. Parol Evidence: Resulting Trust. Parol evidence to establish a resulting trust, must be clear, unequivocal and convincing.</p> <p>3. Husband and Wife: Giet: Presumption. Where a husband places the title to lands in his wife without consideration, whether by conveyance directly or by procuring conveyance to her by others, a gift is presumed.</p>

<p>Commissioner’s opinion, Department No. 3.</p> <p>1. Insurance: Premium: Credit: Suspension of Policy. Where credit is extended and a note tahen for the premium to "be paid for a policy of insurance, and both the note and the insurance policy provide that in case the note is not paid at maturity the policy shall be suspended, inoperative and of no force or effect so long as the note or any part thereof remains due aud unpaid, the insurance company can not be held liable for a loss occurring after the maturity of the note and whthe the same is unpaid.</p> <p>2. -;—: Condition in Policy. The policy contained a further provision to the effect that “in case of any loss of said property, either partial or total, whthe said note, or any part thereof, remains overdue and unpaid, this company shall not be liable for such loss, nor shall the payment of said note or the receiving or retention of the proceeds, or any part thereof, by this company, render it liable for any loss occurring whil§ said note, or any part thereof, remains due and unpaid; nor shall such payment or retention be construed to be a waiver of any condition in' this policy or application. The payment of the premium, however, revives this policy and reinstates the same for the remainder of the term.” Held, that the collection of the premium after a loss by the insured, which occurred after the maturity of the note, and whthe the same was unpaid, whthe it would reinstate the policy for the remainder of the term, would not constitute a waiver on the part of the company such as to malee it liable for the loss.</p>

<p>Commissioner's opinion, Department No. 3.</p> <p>Married Woman: Promissory Noth: Guaranty: Liability. A married woman is liable on her guaranty of a promissory note owned L,\ her and made payable to her order, and the purchaser of such a note is not driven to an inquiry of 1he purpose to which she intends to devote the proceeds of a sale thereof.</p>

<p>Commissioner's opinion, Department No. 3.</p> <p>1. Probate of Will: Disqualification of Witness: Heirs at Law. In a contested proceeding for the probate of a will, the beirs at law of the alleged testator are not disqualified by the statute as witnesses to transactions and conversations with the deceased.</p> <p>2. -: Testator’s Signature Affixed by Another: Burden on Proponent. When in a contested proceeding for the probate of a will, it is disclosed that the name of the alle,ged testator was affixed to the instrument in controversy by some person other than himself, it is incumbent upon the’ proponent to establish by unequivocal evidence that the deceased gave direction to ‘ such person for writing his name, consciously and explicitly, and in the free and voluntary exercise of his faculties.</p>

<p>Commissioner’s opinion, Department No. 3.</p> <p>Insurance: Waiver. It is a settled law of this state that if a beneficiary insurance association, like the plaintiff: in error in this action, continues to collect dues and mortuary assessments from a member who has forfeited his beneficiary certificate, after knowledge of such forfeiture by its officers or agents intrusted with the duty of making such assessments, it shall be held to have waived such forfeiture, without regard to any restrictions or limitations incorporated in its certificates of membership or by-laws with respect to the power or authority of such persons to make such waivers.</p>

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

<p>1. Amendment of Pleading During Progress of Trial: Abuse of Discretion. The denial of an application for leave to amend a pleading during the progress of the trial, is not reversible error, unless, under the circumstances disclosed, the action of the court amounted to an abuse of discretion.</p> <p>2. Farm Lease: Cash Rent: When Due. A farm lease providing for the payment of cash rent, but not fixing in express terms the time when the rent should become due, contained a clause binding the landlord, in case of a crop failure, or a decline in the prices ,of farm products, “to settle the payments of said rent as it becomes due to the best advantage for both parties concerned.” Held, That, in contemplation of the parties, the rent was not to be due or payable before the crops had matured and were ready for market.</p> <p>3. Possession of Property: Present Eight: General or Special. The plaintiff having fathed to show a present right to the possession of the property in dispute, under either a general or special ownership, the court did not err in directing the jury to return a verdict in favor of the defendant.</p>

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

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

<p>1. Unchallenged Finding of Fact. The unchallenged finding's of fact by a referee, when confirmed by the court, are binding on the party against whom they operate, and from the legal consequences flowing therefrom he can not escape.</p> <p>2. Usury. Where a debtor executes a note and mortgage for a loan of money at a lawful rate of interest, and, at its maturity, enters into a new contract with the lender for a further extension of the loan, which is tainted with the vice of usury, and the lender, by agreement, retains the note and mortgage as collateral security to the usurious contract, in a suit to enforce the mortgage security the lender is restricted in his recovery to the amount due on the indebtedness at the time of making the usurious contract, after which all interest is, by force of the statute, forfeited.</p>

<p>1. Highway: Prescription: Public User: .Manieest Claim of Right. To establish a highway by prescription, there must be a continuous user by the public under a claim of right, distinctly manifested by some appropriate action on the part of the public authorities, for a period equal to that required to bar an action for the recovery of title to land. Lewis v. City of Lincoln, 55 Nebr., 1.</p> <p>2. Public Highway: Prescriptive Right. A prescriptive right to a strip of land as a public highway can not be acquired by'lapse of time where the roadway is through the inclosed premises of the owner, and the use thereof permissive only, and the roadway is changed from time to time to suit the convenience of the owner, and no act of control or dominion over it is exercised or asserted by the public authorities.</p>

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

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

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

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

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

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

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

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

<p>Commissioner’s opinion, Department No. 1.</p> <p>1. Board of Equalization: Meeting: Notice. Where the record discloses that a board of equalization remained in session only a portion of the day provided for in the published notice, when a recess was taken subject to the call of the chairman, and no further meeting held until nearly thirty days thereafter, when, without a new notice, another meeting is held, at which final action is taken, held, that such action is not a compliance with the law requiring a meeting of the city council as a board of equalization for at least one day, between the hours of 9 A. M. and 5 P. M., and a special tax depending for its support upon such proceedings is invalid. Medland v. Linton, 60 Nebr., 349, followed.</p> <p>3. Levy: Special Tax: Foot-Frontage: Benefits: Equal and Uniform. Under the provisions of section 78, chapter 13a, Compthed Statutes 1893, in order to sustain a levy of special taxes according to the foot-frontage of the lots of real estate within the tax district, it must affirmatively appear from the record that the council, sitting as a board of equalization, found that the benefits were equal and uniform as to all the lots and tracts to be affected by the proposed improvement.</p> <p>3. Former Opinion Modified. Former opinion in this case (John v. Oonnell, 61 Nebr., 367) modified so far as it is inconsistent with the views herein expressed.</p> <p>Note.—The principle underlying special assessments upon private property to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited and therefore that the owners do not in fact pay anything in excess of what they receive by reason of such improvement. The exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking-, under the guise of taxation, of private property for public use without compensation, but, unless such excess of cost over special benefits be of a material character, it ought not to be regarded by a court of equity, when its aid is invoked to restrain the enforcement of a special assessment. Norwood v. Baker, 172 U. S., 269, opinion by Justice Harlan, Brewer, J., dissenting. In the case just cited, a village corporation by its council condemned certain land for a street extension. In a condemnation proceeding, the jury fixed the damages at $2,000. As the extension of the street passed through the land, the special assessment by front foot was assessed for each side of the street, and amounted to $2,218.58, or $218.58 in excess of verdict for damages. The assessment was perpetually enjoined as in violation of the fourteenth amendment of the constitution of the United States.—Reporter.</p>

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

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

<p>Commissioner’s opinion, Department No. 2.</p> <p>1. Real Estate Agent: Oral Agreement: Statute of Frauds. A verbal contract with an agent or broker to sell land for the owner thereof, is void under the statute of frauds, and it requires the voluntary act of both parties thereto to completely execute it, so to take it out of the operation of the statute.</p> <p>2. Tenant: Landlord’s Title. A tenant who leases land, enters into the possession thereof, cultivates it, raises the crops thereon, converts them to his own use, and is not disturbed in his possession by any one claiming by paramount title, can not plead want of title in his landlord as a defense to an action for- the rent.</p> <p>3. Instructions: Error Without Prejudice. The giving of an instruction which is fairly within the issues raised by the pleadings and the evidence produced on the trial, and which the record shows did not mislead the jury, though not technically correct, is error without prejudice.</p> <p>4. Evidence: Statement by Party: Hearsay. Statements made by a party to a suit, to a third person, may he received in evidence against him, and are not open to the objection that they are hearsay evidence.</p>

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

<p>Commissioner’s opinion, Department No. 3.</p> <p>Judicial Sale: Annual Crops. Annual crops growing on the land do not pass to the purchaser at judicial sale; and for the purpose of saving the debtor’s rights thereto, these annual crops will be regarded as personalty.</p>

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

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

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

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

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

Heard below before Keysor, J. Rehearing of case reported in 62 Nebr., 489. Holcomb, J., dissenting. The fact of copulation after a promise per verba de futuro is simply evidence from which the court may presume a new promise or a promise de prcesenti; and the fact of living together is not itself marriage, but is simply evidence from which the court may presume that a promise was made.

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

<p>Commissioner’s opinion. Department No. 3.</p> <p>1. Petition: Cause of Action. Petition examined, and held to state a cause of action.</p> <p>2. Motion for I\Tew Trial: Petition in Error. A judgment will not be reversed for errors required to be assigned in a motion for a new trial, unless it is alleged in the petition in error, and shown by the record, that the court erred in overruling such motion. James v. Eigglnhotham, 60 Nebr., 203, followed.</p>

Error from the district court for Douglas county. Tried below before Powell, J. The contract in this case was in violation of the Criminal Code, section 241.

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

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

<p>Commissioner’s opinion, Department No. 3.</p> <p>1. Mortgage: Default: Immediate Possession. A provision in a real estate mortgage that, in case of a default in the payment of the debt thereby secured, the mortgagee shall be entitled to the immediate possession of the premises, is valid as to the parties and subsequent purchasers and incumbrancers chargeable with notice.</p> <p>2. Foreclosure of Mortgage: Rents and Profits: Action at Law. An action at law for the rents and profits, will not lie on behalf of a subsequent purchaser or incumbrancer against a mortgagee, who has entered upon and retained possession under such provision, but such mortgagee will be held to account therefor in an action to foreclose his mortg-age.</p> <p>3. -: -: Decree and Sale. Where an action to foreclose such mortgage has been prosecuted to a decree and sale of the premises all the parties to such proceedings are thereby concluded as to such rents and profits.</p>

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

<p>1. Appraisement: Evidence. Evidence examined, and held to sustain the trial court in refusing to set aside the appraisement as being too low.</p> <p>2. Foreclosure: Sale: Deputy Shebiff. Where a decree of foreclosure directs a sale of real estate by a sheriff, such sale is valid if made by the deputy sheriff.</p>

<p>1. Vacation of Sale: Lien: Deduction by Appraisers: Two-Thirds Value. Where property sold in execution of a decree of foreclosure was struck off for more than two-thirds of its gross value, the wrongful deduction by the appraisers of' one of the liens in suit will afford no ground for vacating the sale.</p> <p>2. Judicial Sale: Appraisers: Error of Judgment. A judicial sale will not be set aside on the ground that the appraisers, through an error of judgment, underestimated the value of the property sold.</p> <p>3. “At the Court House.” The south door of a court house is “at the court house,” within the meaning of section 503 of the Code of Civil Procedure.</p>

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

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

<p>1. License: Billiard and Pool: Village: Ordinance. Under the provisions of section 46, and subdivision 12 of section 69, article 1, chapter 14, Compthed Statutes, 1901, village authorities have ample power by ordinance to license and regulate billiard and pool rooms.</p> <p>2. -: -: License Tax. And by subdivision 8 of section 69, aforesaid, village trustees are authorized to raise general revenue by levying and collecting a license tax on persons engaged in the business of conducting billiard and pool rooms.</p> <p>3. Ordinance:. Title. An ordinance whose main object is to license and regulate a business or calling is not wholly void because a provision imposing a small occupation tax is not clearly expressed in its title, as required by section 79 of article 1, chapter 14, Compthed Statutes, 1901.</p>

<p>L Judicial Sale: Appraisal. An objection to an appraisal of real estate for the purpose of a judicial sale, to be available, must be made and fthed before a sale thereof is had.</p> <p>3. -: -: Authority of Deputy Sheriff. -A deputy sheriff may act for and in the place of the sheriff in making- an appraisal of real estate for the purpose of a judicial sale in the execution of a decree of court.</p> <p>3.-: -: Owners of Equity of Redemption: Designation of “et al.” An appraisal of the interests, in land about to be sold at judicial sale, of the parties to an action, against whom the decree operates, is not invalidated because the names of the owners of the equity of redemption are not stated other than by the designation “et al.” after the name of the principal defendant in the action.</p>

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

<p>1. Confirmation, of Sale: Evidence. Record examined, and held confirmation of sale of real estate was regularly and properly entered; held also.the evidence is sufficient to sustain the ruling' of the trial court on objections to appraisal and confirmation of sale.</p> <p>2. Certificate of Incumbrance:' Revenue Stamp. The certificates of prior incumbrances and appraisal of land for the purpose of sale in foreclosure proceedings are not required to be stamped, under the provisions of the war revenue act of 1898. Noble v. Citizens’ Batik of Geneva, 63 Nebr., 847, followed.</p> <p>'3. Brief: Record: Question Presented. Questions discussed in briefs which are not properly presented by the record will not be considered.</p>

<p>Commissioner’s opinion, Department No. 1.</p> <p>1. Pleading: Denial: Judgment. Denial of “each and every allegation of new matter set up in defendant’s answer,” and of “each and every other part of same, except such allegations of said answer as may be admissions .of plaintiffs petition,” whthe subject to motion to strike or to make more specific, being neither a general or specific denial, is sufficient to prevent a judgment for defendant on the allegations of the answer.</p> <p>2. Evidence: Conversion. Evidence examined, and held sufficient to support a finding for plaintiff in action against a joint-owner and the purchaser of a horse-power for conversion of it by a sale.</p> <p>3.Instruction: Conversion: Right of Possession. Not prejudicial error to leave out the element of plaintiff’s right of possession, in defining “conversion,” where that question, so far as the case on trial is concerned, is fairly submitted in another instruction.</p> <p>4. -: -.: -. An instruction that, if conversion was found, both seller and purchaser of the property were liable, held not error, when the circumstances which would and would not make the sale a conversion had been fairly indicated.</p>

<p>Commissioner’s opinion, Department No. 1.</p> <p>J. Liquor-License: Petition. Under section 35 of chapter 50, Compthed Statutes, a petition for a license to sell malt, spirituous and vinous liquors is sufficient if signed by thirty resident freeholders of the ward or village where the sale ,of such liquors is to take place, and, in case there are less than sixty resident freeholders in such ward or village, the petition is sufficient if signed by a majority of the resident freeholders of such ward or village.</p> <p>2. Intoxicating Liquor: License: Bemonstbance. Under section 3, chapter 50, Compthed Statutes, the rig’ht to protest or remonstrate against the issuance of a license is not confined to residents of the ward or village where the intoxicating liquors are sought to be sold.</p> <p>- 3. Evidence. Evidence examined, and held to support the judgment.</p>

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

<p>Commissioner’s opinion, Department No. 1.</p> <p>1. Highway: Order of County Board: Dedication: User. Where no order has been made by a county board laying out or establishing- a traveled road, the public has no rights in such r.oad as ag-ainst a landowner in adverse possession, except such as are acquired by dedication and user. Lydielo v. State, 61 Nebr., 309, distinguished.</p> <p>2.-: Dedication. To constitute a valid dedication of private property for a public highway, it must clearly appear that the owner intended to dedicate the land for a highway, and that the public by user .or otherwise accepted the land for that purpose.</p> <p>3. Evidence: Findings. Evidence examined, and held not to sustain findings and decree of trial court.</p> <p>Note.—Highway—Dedication—United States Homestead—Fencing Land Leaving Strip Along Section Line. Rube v. Sullivan, 23 Nebr., 779.—Reporter.</p>

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

<p>Commissioner’s opinion, Department No. 2.</p> <p>1. Judgment: Power to Set Aside: Judicial Discretion. The district court has power to set aside, change or modify its judgments during the term at which they are rendered. An application to set aside a decree and allow the introduction of evidence upon a technical point, is addressed to the discretion of the court, and error can not be predicated upon the ruling thereon.</p> <p>2. Quitclaim Deed: Innocent Purchaser: Actual Knowledge of Unrecorded Lien. A purchaser ,of real estate, who takes his title by quitclaim deed, with actual knowledge of the lien of an unrecorded mortgage thereon, and who shows by his answer that he had actual notice thereof, and caused inquiry to be made as to the amount of the lien, can not afterwards claim that he is an innocent purchaser for value.</p> <p>3.-:--: -: Mistake. Such purchaser, having requested a third person, not the agent of the lien holder, to ascertain the amount due upon the mortgage, can not defeat a recovery of any portion of the mortgage debt on account of a mistake as to the amount of the lien, made by such third person.</p> <p>4. Evidence: Decree: Einding: Mortgage Debt: Proceedings at Law. Evidence examined, and held sufficient to sustain the decree. Held, also, that where there is sufficient evidence to show prima fade that no proceedings have been had, or commenced at law, to recover any portion of the mortgage debt, and where such evidence is not disputed, the finding of the court thereon will be sustained.</p>

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

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

<p>Commissioner’s opinion, Department No. 2.</p> <p>1. Errors of Procedure: Review: Appeal. Alleged errors in matters of procedure, occurring at or before trial, are not reviewable by appeal.</p> <p>2. Foreclosure:- Counter-Claim: Malicious Prosecution. A cause of action for alleged abuse of process and malicious prosecution of a civil suit, based on an attempt to foreclose a certain mortgage in the federal courts, can not be set up by way of counter-claim in a subsequent suit to foreclose said mortgage.</p> <p>3. Foreclosure: Allegation of No Proceedings of Law: Pkima-Facie Case. The allegation that no proceedings have been had at law, required in foreclosure suits, need not be proved beyond possibility of inference to the contrary; it is enough, where no evidence appears to dispute it, if the plaintiff make a primafacie case.</p> <p>Note.—Abuse of Process.—A malicious abuse of legal process, is its employment for some unlawful object not contemplated by the law. Mayer v. Walter, 64 Pa. St., 283.—-Reporter.</p>

<p>Commissioner’s opinion, Department No. 3.</p> <p>1. Bank: Funds of Depositor: Indebtedness of Depositor: Trust Fund. A bank has the rig-ht to appropriate the funds of a depositor to the extent of the indebtedness dne from him; but if the deposit, or any part thereof, is a trust fund, and the bank has notice of this fact, it will be liable to the true owner if it appropriates such fund to the discharge of an indebtedness dne from the depositor.</p> <p>2. -; Entries on Books: Admissions: Evidence. In a suit against a bank, entries on its books, made by its officers or bookkeeper in the regular course of its business, are admissible in evidence on behalf of the adverse party when in the nature of admissions.</p> <p>3. Deposit: Customer: Debt: Conversion. A bank that appropriates a deposit made by a customer to reduce his indebtedness due the bank, knowing the deposit, or a part thereof, to be a' trust fund, is liable to the true owner for a conversion of his money, and an action at law to recover the amount can be maintained.</p>

<p>Error from the district court for Scott’s Bluff county. Tried below before Grimes, J.</p>

<p>Commissioner's opinion, Department No. 3.</p> <p>1. Intervener: Defective Petition: Dismissal: Appeal. An intervener whose petition does not state facts sufficient to constitute a cause .of action, and who does not pray for any judgment which the court has jurisdiction to render, should be dismissed from the action; and if. he obtains a judgment With which he is not satisfied, and appeals therefrom, this court will render the judgment of dismissal which ought to have been rendered below.</p> <p>2. Keal Estate Sold for Taxes: Constitutional Guaranty. By the constitution of this state owners of real estate sold for taxes are guaranteed two years from the date of the sale within which to redeem, and the statute provides that a tax purchaser, or his assignee, shall not be entitled to foreclose his lien until after the time of redemption has expired. It follows that a petition seeking to foreclose a tax hen which does not show that the land has been sold for taxes, and that a-t least two years have expired after the date of the sale, does not state facts constituting a cause of action.</p> <p>3. Petition: Objection. The objection that a petition is indefinite and uncertain can not be presented for the first time in this court.</p> <p>4. What Constitutes a Mortgage. An instrument in writing, properly executed, which shows upon its face that it is intended to charge a hen upon real estate to secure the payment of a specified debt, is sufficient to constitute a mortgage in this state.</p>

<p>Commissioner’s opinion, Department No. 3.</p> <p>1. Judgment: Justice of Peace: Review: Transcript. • When the judgment .of a district court, in a proceeding in error to review the judgment of a justice of the peace, is sought to be reviewed in this court, the transcript in this court must contain the judgment of the justice of the peace and such other process and proceedings as are soug'ht to be reviewed or corrected.</p> <p>2. Error: Process: Amendment of Return: Btll of Exceptions. This court can not decide whether the district court erred in permitting an amendment to the return of a process, unless the process and the original return thereto, or authenticated copies of them, are preserved in the record or bill of exceptions.</p> <p>3. Transcript of Journal: Absence: Recital in Bill of Exceptions. When the record in a proceeding in this court does not contain a transcript from the journal of the district court of an alleged order made by that court, its absence is not supplied by a recital in the bill of exceptions, certified by the court reporter to be true, that such an order was made, if the judge, at the time of settling' the bill of exceptions, certifies that the recital is false and orders it to be stricken • out.</p>

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

<p>1. Reversal of Judgment: Motion for New Trial. A judgment will not be reversed for errors wbieli are required to be assigned on a motion for a new trial, unless it is alleged in the petition in error and shown by the record that the court erred in overruling such motion.</p> <p>3. Verdict. Verdict examined, and held sufficient to support the judgment rendered thereon.</p>

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

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

<p>1. Evidence: Fornication: Sthence Under Accusation. When, before prosecution, and whthe not under restraint, parties are accused of living together in a state of fornication, and make no denial, or are sthent, this may be shown in evidence as an inculpatory circumstance to be weighed and considered by the jury in determining the truth of the charge preferred against them.</p> <p>2. Conflicting Evidence. When the testimony is conflicting, and is fairly submitted to a jury, a new trial will not be granted if the testimony is sufficient to sustain the verdict. Tan Burén v. State, 63 Nebr., 453.</p> <p>3. Evidence. Evidence examined, and held sufficient to sustain a verdict of guilty.</p> <p>4. Instructions: Fornication: Open and Notorious Cohabitation. In a prosecution for the ofíense of living together in a state of fornication, it is not error to instruct the jury that it is not necessary the cohabitation charged in the complaint should be either open or notorious.</p> <p>5. -: Tender: Error. Where it is claimed an instruction which states no erroneous proposition of law is not sufficiently explicit, it is the duty of counsel to prepare and submit an instruction fully covering the point in issue, and which must be refused before error can be predicated on the court’s action in giving' the instruction complained of.</p> <p>6. Impeaching Question. Record examined, and held, foundation for an impeaching question was laid with sufficient certainty, and that no error was committed in permitting the question to be answered over objection thereto.</p>

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

<p>Commissioner’s .opinion, Department No. 1.</p> <p>1. Estoppel. An estoppel by representations does not arise, where there is no intention and conld be no reasonable expectation, that such representation was to be acted upon.</p> <p>2. Lease: Agency: Married Woman: Estoppel: Notary; Loan." Making a lease as “authorized agent” for her husband by a married woman, in whose name title of record to the lands in question had stood for eight years, not such representation as estops her to claim title against the notary acknowledging the lease, who more than two years thereafter loaned money to the husband, supposing he owned the lands.</p> <p>3. Husband and Wife: Creditors. Acts .of a husband in leasing lands and taking notes to himself for rent, where the title of record remained all the time in the wife, do not show such ostensible ownership in him as to preclude her from claiming title against his creditors.</p> <p>4. -:--: Estoppel. A wife, who in 1881 procured her husband to buy from the state school land for her in his own name, who leaves the contract in his name until 1896, when the state is paid from proceeds of sale of part of the land, and deed made to her, and who has in the meantime permitted the husband to lease the land, take notes for rent in his own name, and manage it as his own, is estopped to claim, as against a creditor who has, with knowledge of such management, but with no actual knowledge of the contract, loaned the husband money in 1894 on the faith of his ownership of the land.</p>

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

<p>Commissioner’s .opinion, Department No. 1.</p> <p>1. District Court: Jurisdiction: Collateral Attack. Where a district court has acquired jurisdiction, it has the right to decide every question which arises in the ease, and its orders and judgments, however erroneous, can not be collaterally assathed. Such errors can only be taken advantage of by proceedings in error or appeal to this court.</p> <p>2. Judgment for Alimony: Lien on Homestead. A judgment for alimony in favor of a wife, rendered in an action for divorce against the husband, is a lien upon the family homestead, the title whereof is in the husband. Best v. Zutavern, 53 Nebr., 604, followed.</p> <p>3. Judicial Sale: Judgment Debtor’s Interest: Appraisers. Where appraisers have been appointed to fix the value of the judgment debtor’s interest in land, for the purpose of judicial sale, they have no power, under section 4916 of the Code, to deduct or apportion, according to area, liens upon an entire tract for the purpose of determining the judgment debtor’s interest in a distinct parcel of the entire tract.</p> <p>4. Execution Sale: Adjournment: Code. There is no provision of the Code authorising an adjournment of an execution sale.</p>

<p>Commissioner’s .opinion, Department No. 1.</p> <p>1. Chattel Mortgage: Record: Conflicting Evidence: Creditors: Question for Jury. Where a chattel mortgage is kept from record for a period of sixteen months, and the evidence is conflicting as to whether it was done by agreement between the parties, and rights of creditors have intervened between the execution and filing of the mortgage, the question of the validity of the mortgage as to such creditors, in a replevin action brought by the mortgagees, is a question of fact for the jury.</p> <p>2. -: Question for Jury. Where a creditor takes possession of a stock of merchandise, claiming an agreement between himself and the debtor by which the latter turned the goods over as a pledge of personal property to secure the amount due, and there is evidence tending to show that the creditor took possession by virtue of a chattel mortgage, the character of the creditor’s possession is for the determination of the jury.</p> <p>3. Mortgage: Stock of Merchandise. A mortgage upon a stock of merchandise under the general description attaches, only to such merchandise as was in stock when the mortgage was executed, and not to stock afterwards added by purchase.</p> <p>4. Evidence: Directing Verdict. Evidence examined and held not to warrant a peremptory instruction directing the jury to return a verdict for plaintiff below.</p>

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

<p>Commissioner’s opinion, Department No. 2.</p> <p>1. Statute of Limitations: Tax Lien. The statute of limitations does not run against a tax lien until five years after the right of action has accrued thereon.</p> <p>2. County Treasurer: Notice of Tax Sale: Contents. Section 109, chapter 77, Compthed Statutes, requires the county treasurer, in his notice of a tax sale, to give a list of the land to be sold and the amount of the taxes due thereon,'but does not require the treasurer to include in the notice the amount of the interest due on the taxes up to the day of the sale.</p>

<p>Commissioner's opinion, Department No. 2.</p> <p>1. Contract of Sale: Approval of Purchaser. If a contract of sale is expressly made subject to the approval .of the purchaser, or of someone for him, and such approval involves either judgment in matters of taste or personal opinion, the person whose approval is required is made the sole arbiter, and his decision is conclusive, provided he really passes upon the question and reaches a conclusion honestly, whether his conclusion is right or wrong.</p> <p>2.-: -: Opinion of Attorney: Title. Where a party stipulates that his contract of purchase shall be subject to the opinion of his attorney as to the title to or legal status of the thing to be purchased, the plain purpose being to make his act dependent upon the personal opinion of his legal adviser, the sole requirement is that such legal adviser in fact pass upon the subject and give his honest opinion, and the merits of an honest opinion actually given are not subject to review.</p> <p>3. Contract for Labor: Opinion Must Be Reasonable. The cases in which the courts insist that the opinion or decision must be reasonable and well founded, as well as honest, are those in which the contract is for performance of labor in lines not necessarily involving personal taste and opinion, so that any competent person could arrive at a satisfactory determination.</p> <p>4. Contract: Opinion of Purchaser’s Legal Adviser: Patent Pretense. In case a contract makes the opinion of the purchaser’s legal adviser conclusive, the opinion rendered may be so unreasonable as to be evidence in itself that it is not honest; but before such conclusion can be deduced from the face of the opinion alone, it must be so grossly and palpably at variance with plain principles of law as of itself to compel the conclusion that it is a mere pretense.</p>

<p>Commissioner’s opinion, Department No. 2.</p> <p>1. Bill of Exceptions: Judicial Notice. A bill of exceptions may properly include a record of events which took place in the presence of or under the direction of the court and matters of which the court took judicial notice, if in fact considered by the court in arriving at a decision, although not formally introduced in evidence.</p> <p>2. -—: -—. Review: Appeal: Rejection of Improper Evidence. If any matter of which a trial court takes judicial notice in coming- to a decision is incompetent, irrelevant or otherwise improper to be considered, this court, in hearing- the cause on appeal, will reject it and put it out of the way in considering whether the order complained ,of is sustained by sufficient evidence.</p> <p>3. -: Mandamus: Plain and Adequate Remedy in the Ordinary Course of Law. A party who complains that a trial judge has incorporated incompetent, irrelevant or imxmoper matter in a bill of exceptions by way of amendment on the ground that he took judicial notice thereof at the hearing, has a “plain and adequate remedy in the ordinary course of the law,” within the purview of section 046, Code of Civil Procedure, by obtaining-a review of the action of the judge in considering the matter complained of.</p> <p>Note.—Judicial Notice.—We are bound to take judicial notice of historical facts, matters .of public notoriety occurring in our midst. 70 Me., 609.—Reporter.</p>

Original application in the nature of a quo warranto to test the right of the respondent to hold the office- of clerk of the district court for Valley county. Heard on demurrer to petition.

<p>Commissioner’s opinion, Department No. 3.</p> <p>1. Precinct: Taxes: Assessment: Levy: Territorial Integrity of Precinct. So far as the assessment of property and the levy of general taxes are concerned, precincts once lawfully established retain their character and territorial integrity until such time as they shall be divided, changed or modified in some manner authorized by law.</p> <p>2. -: -: -: ■—.—-: Ward of City Constituting a Precinct. When a village contained within a county, precinct or precincts, becomes organized as a city pursuant to a statute requiring the city authorities to divide its territory into wards, and enacting that each ward, when so created, shall constitute a precinct, the pre-existing precinct or precincts will, for general revenue purposes, remain unaffected until that duty shall be performed.</p>

<p>Commissiouer’s opinion, Department No. 3.</p> <p>Former Judgment: Definition of Res Judicata. A former judgment is conclusive when the parties and the question involved in the two suits are the same, although the property claimed in them may be different.</p>

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

Original application for a writ of mandamus to compel the respondents as members of the city council and board of equalization of the city of Omaha to reconvene and consider complaints of the relators alleging inequalities in the assessment of taxes for the year 1902. Opinion of referee follows opinion of court.

Heard below before Robinson, J. Rehearing of case reported in 62 Nebr., 344. This case was taken to the supreme court of the United States, on writ of error issued by Melville W. Fuller, Chief Justice, July 22, 1902. The federal question involved is a claim on behalf of plaintiff in error (appellee in this court) that sections 4 and 6 of article 5 of chapter 77, Compthed Statutes, is in conflict with the fourteenth amendment to the constitution of the United States.—Reporter.

<p>Commissioner's opinion, Department No. 3.</p> <p>Bastardy: Compromise. The complainant has no authority to compromise a judgment rendered in bastardy proceedings.</p>

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

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

Error from the district court for Custer county. Tried below before Sullivan, J. A saloon-keeper is liable criminally for all violations of chapter 50 of the Compthed Statutes committed by his servant in his place of business, although he is himself absent and ignorant of such violations. We think the law is Well settled that the relation of master and servant exists between a saloon-keeper and his bartender.

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

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

<p>Confirmation of Sale:</p>

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

<p>1. Peremptory Instruction: Undisputed Facts. Where there are no disputed facts for the determination of the jury, it is not error to give a peremptory instruction in favor of the party entitled thereto on the undisputed facts.</p> <p>2. Evidence. Evidence examined, and held that no question of negligence on the part of plaintiff is presented, such as would relieve the defendant of his liability as guarantor of the payment of the debt sued for.</p> <p>3. Liability of Guarantor. It is not required that exclusive reliance be placed on the guaranty of a third party to pay the debt of another in order to recover on the liability of such guarantor. If the credit was extended on the faith of the guaranty this is sufficient.</p>

<p>No Merit in Appeal From the Confirmation of Sale.</p>

<p>Commissioner’s opinion, Department No. 1.</p> <p>1. Placing Daw Case on Equity Docket Over Plaintiff’s Objection: Waiver. Error in placing a law case on an equity docket over plaintiff’s objection is waived, if at the trial plaintiff expressly declines bearing before a jury.</p> <p>3. Harmless Error. Error in bolding witness incompetent and refusing all her testimony is immaterial, if the testimony offered, together with the proofs received, shows no right of action.</p> <p>3. Illegitimate Child: Prescribed Evidence of Paternity. Section 31, chapter 33, Compthed Statutes, in making an illegitimate child an heir of the person who “shall, in writing, signed in the presence of a competent witness, have acknowledged himself to be the father of such child,” only provided for the prescribed evidence of paternity.</p> <p>4. What Need Not Appear. No intention to make the child an heir, and no distinct statement that it is an illegitimate child, need appear in the writing.</p> <p>5. Marital Confidence: Marriage Void Ab Initio. A woman whose marriage with decedent was annulled during his lifetime because of the existence of a former husband at the time of the marriage is a competent witness against his estate as to facts learned otherwise than by communications from deceased during the existence of marital relations.</p>

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

<p>Original application for a writ of mandamus to compel the respondent, as assessor, to collect certain statistics.</p>

<p>Commissioner’s opinion, Department No. 1.</p> <p>1. Liquor-Seller: Civil Damages: Loss of Support: Instruction: Continuity of Intoxication. Instruction that plaintiffs in action against liquor sellers are entitled to compensation for loss of support caused by the husband and father’s intoxication 'from all who sold or gave him the liquor causing such intoxication, livid not to assume improperly any continuity of such intoxication.</p> <p>2. Meaning of “Support,” as Used in Statute. Instruction that “support” in the statute as to intoxicating liquors does not mean the bare necessaries of life, but such means as would enable plaintiffs to live in a “style and condition and with a degree of comfort suitable and becoming to their stations in life,” held proper.</p> <p>3. Instruction. Instruction that the furnisher of any part of liquor causing' the loss of support is liable to the full extent of the loss, approved.</p> <p>4. Evidence. Evidence examined and held sufficient to uphold verdict for plaintiffs for $400.</p>

<p>Commissioner’s .opinion, Department No. 1.</p> <p>1. Judgment Lien: Index: Search: Metz v. Bank. A judgment which is valid as soon as rendered does not become a lien upon real estate, as against a subsequent purchaser without notice, until properly indexed, and a purchaser need not search for judgment liens further than to examine the proper index. Metz v. State Bank of Browwoille, 7 Nebr., 165, followed.</p> <p>3. Admission of Fact: Misapprehension. When an admission of fact is made by counsel upon the trial under a misapprehen- . sion, the court should, in the exercise of a wise discretion, relieve against' it.</p> <p>3. Evidence. Evidence examined, and held to support the finding of the court both as to diligence on the -former trial and the sufficiency of the defense presented at the second one.</p>

<p>Commissioner’s opinion, Department No. 1.</p> <p>1. Administrator: Right to Decedent’s Real Estate: Action of Quia Timet. Under the laws of this state, the right of an administrator to the real estate of his decedent is possessory only, and such interest is not sufficient to authorize him to maintain a suit to quiet title to such real esate.</p> <p>2. Cross-Bill: Affirmative Relief Against . Co-Defendant: No Appearance: Jurisdiction. Where a cross-hill asking affirmative relief against a co-defendant is fthed out of time, and no summons is issued thereon, or served upon such co-defendant, and no appearance is made thereto, the court has no jurisdiction to try the issues tendered by such cross-bill.</p>

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

<p>Commissioner’s opinion, Department No. 3.</p> <p>Highways: Defective Bridge: Injury: Liability: Limitation. Section 117 of chapter 78 of the Compthed Statutes, entitled “Roads,” which authorizes the prosecution of suits for damages to the person and property of one injured by reason of a defective bridge or public road, is an act of the legislature complete in itself, and the limitation of time for the commencement of actions contained therein applies to all persons, without regard to any kind of disability whatever. A suit based on that act which is commenced more than thirty days after the injuries complained of occurred, can not be maintained. , ,</p>

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

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

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

<p>Commissioner’s opinion, Department No. 3.</p> <p>Statute of Frauds. Any distinct and unambiguous act evidencing an intention by the seller to part with the possession and an intention on the part of the buyer to acquire the possession, accompanied by a,tradition of the property from the premises of the former or from neutral ground to the premises of the latter, satisfies the statute of frauds ánd suffices to transfer the title, so that the former may recover the purchase price, if it remains unpaid, and the latter assumes the risk of safe-keeping and may defend his possession against all the world.</p>

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

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

<p>Original action by the state to recover penalties provided for a violation of the maximum freight rate law.</p>

Original proceeding in mandamus to require the governor to appoint a fire and police commission for the city of Omaha. Writ denied. On rehearing, writ allowed, hut not formally issued. See page 702. Held: were barred and guarded; so that, when the sheriff went to serve the -writ he was obliged to force the door. No briefs were fthed by counsel for either side.

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

<p>Error from the district court for Lancaster county. Tried below before Frost, J. Heard on motion to dismiss.</p>

Appeal by defendants and proceeding in error by plaintiff. Tried below before Frost, J., in the district court for Lancaster county.

<p>Commissioner’s opinion, Department No. 1.</p> <p>1. Instructions: Objection En Masse. Objections to instructions en masse will not be considered where any of those so complained of, are correct.</p> <p>3. Instruction: Redelivery Bond: Estoppel. Instruction that the giving by plaintiff, as surety, of a redelivery bond for property levied upon, does not of itself estop her from maintaining-, after its return and a vain demand for ft, an action for its conversion by the execution creditor approved.</p> <p>3. No Plea of Estoppel: No Oeeer to Show Knowledge: Evidence. .Where no estoppel on that ground is pleaded, and no offer made to show knowledge by the wife at the time of the facts, it is not error to refuse evidence that the debt for which property was levied upon, was contracted through faith on the creditor’s part in the husband’s ownership of the property in question.</p> <p>4. Purchaser: Subsequent Statements. Mere subsequent statements by a purchaser at execution sale, are not competent proof of facts stated as against one suing for conversion by such sale of the property sold.</p>

<p>Commissioner’s opinion, Department No. 1.</p> <p>1. Appeal from a Justice of the Peace: Same Issues: New Matter. Where an appeal is taken from a judgment of a justice of the peace to the district court, the case is to be tried in the latter court upon the same issues that were presented in the court from which the appeal was taken, with the’ exception of new matter arising after the trial.</p> <p>2. Transcript: Failure to Disclose Issues: Parol Evidence. Where the transcript from the justice court fthed in the district court on appeal fails to show what issues were tendered in the justice court, parol testimony is admissible to show what issues were presented.</p>

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

<p>Error from the district court for Thurston county. Tried below before Evans, J. Rehearing of case reported in 62'Nebr., 469.</p>

<p>Commissioner’s opinion, Department No. 1.</p> <p>1. Injunction: Illegal Taxes. Injunction will not lie to restrain the collection of taxes, unless such taxes are levied for an unauthorized or illegal purpose.</p> <p>3. Facts. Under the facts in this case, held, that the taxes, the collection of which is sought to be restrained by injunction, are not illegal or unauthorized.</p>

' Heard belw before Evans, J. A deed from a husband directly to his wife, may be sustained on equitable grounds, i. e., a valuable consideration. Smith v. Dean, 15 Nebr., 432. When the husband and wife occupy a homestead, the title to which is in the name of the husband, a deed of conveyance from the husband to the wife, signed and acknowledged by him alone, is valid. Furrow v. Atheij, 21 Nebr., 671.

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

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

<p>Commissioner’s opinion, Department No. 2.</p> <p>1. Mutual Insurance Company: What Constitutes the Contract. When a mutual insurance company is organized under the provisions of the laws of this state, the provisions of the statute authorizing its organization, the articles of incorporation, and by-laws of the company, the application for membership and the certificate of membership constitute the contract between the company and its policy-holder.</p> <p>2. -: -: Subsequently Enacted By-Laws. When a member of a mutual insurance company agrees in his application to be governed by. the by-laws and rules “now in force or hereafter adopted by said company,” he will be bound by subsequently enacted by-laws of his company the same as he is by those in force at the time his certificate of membership is issued; provided that such subsequent by-laws are reasonable in their nature, and properly adopted in conformity with the authority conferred by the statute upon such company.</p> <p>3. Reasonable By-Law. A by-law of a mutual insurance company, which provides that the company shall not be liable for any loss that may occur whthe a member is in default of the payment of a legal assessment, is a reasonable by-law, and will be upheld.</p> <p>4. Policy: Partial Destruction: Receipt of Subsequent Assessment: Waiver of Default. Where all the property covered by a policy of a mutual fire insurance company is not destroyed, the receipt of subsequent assessments by the company, from a member who has sustained a loss whthe his policy was suspended for default in the payment of assessments, will not operate as a waiver of such default.</p> <p>Note.—The by-laws of a mutual insurance company, are a part of the contract of insurance. Evans v. TriMountain Mutual Fire Ins. Co., 9 Allen [Mass.], 329; Hale v. Mechanics’ Mutual Ins. Co., 6 Gray [Mass.], 169; Brewer v. Chelsea Mutual Fire Ins. Co., 14 Gray [Mass.], 203; Baxter v. Chelsea Mutual Fire Ins. Co., 1 Allen [Mass.], 294.</p> <p>“A proviso [of an insurance policy] in print too fine to be read by a person of middle age without spectacles, can not be considered a part of the contract.” Barnes v. McMurtry, 29 Nebr., 178, 185.—Reporter.</p>

<p>Commissioner’s opinion, Department No. 3.</p> <p>1. Pleading: Denial Ipsorum Verborum: Tenders no Issue. A denial of the very words of the allegations of the petition, without denying their substance and effect, tenders no issue.</p> <p>3. Negative Pregnant. An answer denying that plaintiff’s testatrix on a date named “was the ownér in fee simple and entitled, to possession” of the land in controversy, and denying that she died “on or about” said date, being consistent with ownership after said date and before she died, and also with ownership before and at said date, subject to a right of possession in someone else, does not put the plaintiff upon proof of title.</p> <p>3. Instruction: Limitation: Adverse Possession. An instruction which states that, if the owner of lands does not bring an action against one who wrongfully withholds possession within ten years after his.cause of action accrues, he loses his right to bring or maintain such action, without adding that defendant’s possession must be continuous, open, notorious, exclusive and adverse during the full period of ten years, is misleading and erroneous.</p> <p>4. Misleading Instruction: Not Cured by Conflicting Instruction. The error in giving an incorrect or misleading' instruction is not cured by giving other instructions which state the law correctly, where the several instructions are inconsistent or conflicting, or where, taken as a whole, they may convey an erroneous impression.</p> <p>5. Occupant: Adverse Possession. An occupant who claims by adverse possession, must show that he occupied adversely during the entire period of ten years.</p> <p>0. -:--: Color of Title: Claim of Right: Intention to Trespass: Evidence. Where such occupant entered originally without color of title or claim of right, and the acts relied on to show entry and occupation were consistent with a mere intention to trespass from 'time to time until interfered with by the true owner, his testimony that he intended to take possession and hold and occupy as owner, uncorroborated by acts necessarily indicating such intention, is not sufficient to require a finding in his favor.</p>

<p>Commissioner’s opinion, Department No. 2.</p> <p>1. Cestui Que Trust as a Preferred Creditor. Misappropriation of a trust fund does not entitle cestui que trust, merely as such, and for that reason alone, to a preference over general creditors of an insolvent trustee.</p> <p>2. -. In order to obtain a preference, cestui que trust must show that the estate, out of which he claims such preference, has been increased to some extent by the misappropriation of the trust property; and he is entitled to a preference to the extent of such increase only.</p> <p>3. Trust Money: Trustee’s Funds: Mingling: Charge Upon WnoLE Mass. Where a trustee mingles trust moneys with his own funds, cestui que trust is entitled to a charge upon the whole; and so long as any portion of the mass into which the trust fund has entered remains in any form, it is subject to such charge, and may be followed and claimed.</p> <p>1. Cestui Que Trust: Onus Probandi. The burden is upon cestui que trust to show that the trust money did in fact increase the estate out of which he seeks a preference, or is represented therein in some form. But it seems that where such money has gone into the general estate of a trustee, who aftei’.wards becomes insolvent, there is a presumption that it remains therein at his insolvency and the court will not say that it can not be traced or has wholly disappeared where the contrary may fairly be inferred. ‘</p> <p>5. -: Presumption. It is presumed that moneys drawn out of a fund wherein the trustee has mingled his own money and that of cestui que trust are his own, and, so long as any portion of the fund so constituted remains, it may be followed, and the charge of cestui que trust thereon may be asserted.</p> <p>6.-: Preference of Creditors. But if the whole of such fund, or a greater portion thereof than that representing' the irustee’s own money is used by an insolvent trustee in paying his debts, cestui que trust is not entitled to a preference over general creditors for the amount of his money so lost.</p> <p>7. ---: Lien or Claim. Property or assets of the insolvent trustee acquired before, or with the proceeds of property held before, the trust money came into his hands, and not in any way mingled therewith, are not subject to any lien or claim in cestui quo trust. and the rights of the latter with respect thereto are those of a general creditor only.</p> <p>8. —--. A change in the form of a portion of a fund in which money of the trustee personally and of cestui que trust has been mingled is not necessarily a withdrawal of such portion. When the trustee retains such portion and dissipates the remainder, •the portion retained in the altered form is taken to represent such fund and may be claimed by cestui que trust.</p> <p>9.-: Trust Monet. Where a portion of a fund made up of trust money and of individual money of the trustee is invested, and a profit results, cestui que- trust, in following the trust money into the investment, may claim such profit as the proceeds of the original funds upon which he had a charge, at least to the extent of said charge upon the original fund.</p> <p>10. Stare Decisis. Capital Nat. Bank v. Coldwater Nat. Bank, 49 Nebr., 786, and State v. Midland State Bank, 52 Nebr., 1, limited. State v. Bank of Commerce 54 Nebr., 725, and Morrison v. LincoVn Savings Bank & Safe Deposit Co., 57 Nebr., 225, adhered to.</p>

<p>Commissioner's opinion, Department No. 2.</p> <p>1. Reformation of Written Instrument: Evidence on Mistake. In order to justify reformation of a written instrument in any substantial particular, the evidence of mistake must be clear, convincing and satisfactory.</p> <p>2. -: -: Reasonable Doubt: Evidence. But it is not required that mistake be shown beyond a reasonable doubt; and where the extrinsic evidence is full, unequivocal and satisfactory, the terms of the instrument alone will not suffice to sustain a decree denying reformation.</p>

<p>Commissioner’s opinion, Department No. 3.</p> <p>1. Trustee: Teems of Trust: Beneficial Interest: Right of Action. Where a trustee refuses to carry out the terms of a trust, the party or parties beneficially interested may maintain an action in their own right to enforce the trust, and to obtain the benefit thereof.</p> <p>2. Misjoinder: Waiver. A misjoinder apparent on the face of the petition, is waived if not objected to before the trial.</p> <p>3. Objection: Demand for Jurx. An objection “that the court is without jurisdiction to hear a cause on the equity side of the court,” is not a sufficient demand for a jury, even though the action be one at law.</p> <p>4. Evidence. Evidence examined and held, to support the judgment.</p>

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

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

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

<p>Commissioner’s opinion, Department No. 3.'</p> <p>1. Written Contract: Construction: Rejection of Certain Words: Intention of Parties. A construction of a written contract, which requires the rejection of certain words, is unwarranted where the rejection of such words would defeat the intention of the parties.</p> <p>2. Sufficiency of Tender: Objections. Where the question of the sufficiency of a tender arises in the course of the trial of a cause, and it appears that such tender was rejected on specific grounds, other objections to the tender will not be considered.</p>

<p>Bank: Other Corporation: Notice of Character of Transaction: Personnel of Workin0 Force. The rule is well settled that a bank or other corporation, being once charged with notice of the character of a transaction, continues to be affected by such notice, whatever changes may occur in the personnel of its working force.</p> <p>Note.—Notice to Corporation.—A corporation can not receive information or notice of any fact but through the senses of the members composing the corporation. Underwood, J., in Lyne v. Bank of Kentucky, 5 J. J. Marsh. [Ky.], 545, 559.—Reporter.</p>

<p>1. Sheriff: Sare of Rear Estate: Certificate of Liens: Authority. The authority of a sheriff or other officer to sell real estate under a decree of foreclosure, does not depend upon the procurement and filing of certificates of liens.</p> <p>2. Judicial Sale: Liens: Confirmation. Where property brings at judicial sale two-thirds of its gross value, the sale should be confirmed notwithstanding the failure Of the sheriff to fthe in the office of the clerk of the district court in due time the treasurer’s certificate showing the amount of a tax lien.</p> <p>Note.—Sheriff.—Execution Sale.—At a judicial sale, the sheriff simply sells the property of the defendant in the thing-, whatever that property may he; and warrants nothing, either as to title or quality. The rule of caveat emptor applies nine cera. Hart v. Hampton, 7 T. B. Monroe [Ky.], 381, 18 Am. Dec., 186.—Reporter.</p>

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

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

Error from the district court for Gage county. Tried below before Letton, J. Heard on motion for judgment against sureties on cost bond.

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

<p>1. Judgment of Justice: Filins Transcript: Effect. The filing of the transcript of a judgment of a justice of the peace or county court with, and the docketing of it by, the clerk of the district court, do not make it a judgment of the district court. Moores v. Peyelce, 44 Nebr., 406.</p> <p>3. -: ^-: -: Dormant: Time. A judgment rendered by a justice of the peace, a transcript of which is duly fthed and docketed in the office of the clerk of the district court, becomes dormant where no execution thereon is issued after five years from the date of its rendition, and the filing of a transcript , of such judgment in the district court, will not have the effect of keeping it alive for five years from the date of such filing.</p> <p>Note.—-Dormant-Judgment Act.—Statute of Limitations.—^Dormant-judgment acts are not mere statutes of limitations, and a judgment will not be saved from dormancy by the mere fact that partial payments are made and receipted for within the limited time. Stanley v. McWhorter, 78 Ga., 37; Lewis v. Smith, 99 Ga., 603; Blue v. Collins, 109 Ga., 341.—Reporter.</p>

<p>1. Keeping Intoxicating Liquor for Purpose of Sale: Information: Description of Place or Structure: Search Warrant. An information charging .one with keeping and having in his possession intoxicating liquors with the intention and for the purpose of selling the same without having a license or permit therefor, is not fatally defective because it fails to describe the place or structure where the alleged liquors are kept with ihat deg'ree of certainty and particularity required before a search warrant is authorized to issue under the provisions of section 20, chapter 50, Compthed Statutes, regulating the sale of intoxicating liquors.</p> <p>2. Information: Words of Statute: Demurrer. An information which charges in the language of the statute, or in words equivalent thereto, the commission of an offense as therein denounced, is sufficient, and such information is invulnerable to a demurrer.</p> <p>3. -: Keeping Liquor: License. Where an information charges the commission of the offense of keeping in one’s possession intoxicating liquors with the intention and for the purpose of selling the same without having a license or permit therefor, alleging therein the time and the town, county, and state in which the offense is charged to have been committed, it is proper to charge the jury that the time and place as alleg'ed in the information must be found from the evidence in order to warrant a conviction, the word “place” having reference to the town and county, and not to the particular building in which such liquors may have been kept.</p> <p>4. Prosecution for Unlawfully Keeping Liquor: Presumptive Evidence. In a prosecution under section 20, chapter 50, Compthed Statutes, for keeping intoxicating liquors for sale in violation of law, the possession of such liquors by the accused is presumptive evidence of guilt in the district court, as well as before the examining' magistrate, unless the accused “shall satisfactorily account for and explain the possession thereof, and that it was* [they were] not kept for an unlawful purpose.” Ditrfee v. State, 53 Nebr., 214.</p> <p>5. Instruction. Instruction requested by the defendant and modified by the court before being given, held properly modified.</p> <p>6. Evidence. Evidence examined, and held sufficient to support a verdict of guilty as returned by the jury.</p> <p>7. Misdemeanor: At Liberty on Rail: Presence at Verdict: Waiver. Where a defendant, charged with a misdemeanor, is at liberty, on bail or .otherwise, whthe his case is being tried, and voluntarily absents himself from the court room at the time the jury returns its verdict, his counsel being present, and no objection being made to such absence defendant will be held to have waived his right to be present at such time, and the reception of such verdict by the court in the absence of the defendant under such circumstances, is without error.</p> <p>8. Other Errors. Other alleged errors examined, and found not well taken.</p> <p>Note.—Keeping for the Purpose of Unlawful Sale.—Common Law.— Statute..—The keeping of liqnor for-the purpose of unlawful sale, is a statutory offense sine cera. Such an offense was unknown to the common law. Bishop, Statutory Crimes [3d ed.], 1054. The gist of the offense is the guilty intent, which does not of necessity include knowledge of ihe intoxicating- quality of the liquor. Commonwealth v. Goodman, 97 Mass., 117. One who is authorized to sell liquor in a lawful manner—e. g., licensed town-agent—may be guilty of this offense, if he has the intent to dispose of the liquors unlawfully. State v. Connelly, 63 Me., 212. If the statute omit the words “within the state,” the law is violated by keeping the liquor with the intent to dispose of it unlawfully in another state.* State v. Guinness, 16 R. I., 401. The intent need not be to sell or dispose of the liquor from the building in which it was kept. State v. Viers, 82 Ia., 397. If the offender is punished for an unlawful sale, the previous unlawful keeping for the purpose of such sale is not merged in the sale; he can still be punished for it as a distinct offense. Menken v. Atlanta, 78 Ga., 668. Bor the same reason, a trial and conviction or acquittal can not be pleaded, autrefois convict or autrefois acquit, for the one offense against the other. State v. Head, 3 R. I., 135. The indictment is sufficient if it follows the statute substantially. Commonwealth v. Gilland, 9 Gray [Mass.], 3.</p> <p>Evidence.—Possession and intent are the two essential facts to be proved. No actual sale is necessary to complete the offense. A case may be made out without proof of sale or of offer to sell. State v. McGlynn, 34 N. H., 422. The evidence of a sale is, however, admissible; and the intent maybe presumed from the unlawful sale. State v Sartori, 55 Ia., 340; Commonwealth v. Fitzgerald, 14 Gray [Mass.], 14. The evidence of sale, admitted on a trial for the selling, is admissible on a subsequent trial for the unlawful keeping. State v. Head, 3 R. I., 135. The unexplained possession of liquors under suspicious circumstances, is sufficient to sustain a verdict of guilty. Commonwealth v. Gallagher, 124 Mass., 29; Commonwealth v. Levy, 126 Mass., 240. Such evidence is competent. Commonwealth v. Tenney, 148 Mass., 452; Commonwealth v. Purtle, 11 Gray [Mass.], 78. Upon the question of intent, the fact that the defendant kept a saloon shortly before and shortly after the act complained of is admissible. Commonwealth v. Matthews, 129 Mass., 487. Where a person has a lawful permit to sell liquor for a certain purpose—e. g., a druggist—the jury may take into account the amount of liquor he has on hand. State v. Shank, 74 Ia., 649. Evidence tending to show that the defendant kept ale for sale in his house at a certain time, is competent as to whether spirituous liquors kept there at the same time were kept for sale. State v. Gorman, 58 N. H., 77. The condition of the place where the liquor is alleg-ed to be kept, as to appointments and fixtures, is competent evidence. Commonwealth v. Powers, 123 Mass., 244. Also evidence that the defendant’s place was one of common resort; that intoxicated persons were seen to come from there; that, at the time of the search, there were signs of recent drinking; and that defendant, a short time before—within a month—was laying' in a stock of liquors. Commonwealth v. Mead, 140 Mass., 300; Commonwealth v. Leighton, 140 Mass., 305. The defendant can not be convicted upon common rumor or reputation. Cobleigh v. McBride, 45 Ia., 116. Now, in State v. Burrill, 29 Wis., 435; State v. McDowell, Dudley, Law [S. C.], 346; Territory v. Chartrand, 1 Dak., 379, and in Drake v. State, 14 Nebr., 535, it is held that, in the trial upon an indictment for keeping a house of prostitution, the reputation of the place could be shown. Some of the decisions, supra, hold the proof of the reputation sufficient to convict. Quare: Why one rule in regard to a tippling shop and another in regard to a bawdy house?</p> <p>Proof of One Offense in the Trial for Another.—It will be seen, by authorities cited in this note, that it is competent to prove the sale of liquor in the trial of an indictment for keeping liquor with the intent to sell. It is a familiar rule that .it is frequently competent to introduce evidence of one offense in the trial for another, in order to show, (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing' the commission of two or more crimes so related that the proof of one tends to prove the other, (5) the identity of the person charged with the commission of the crime on trial, (6) guilty knowledge. A learned discussion of this subject may be found in both the argument of counsel and the opinion of the court in People v. Molineux, 168 N. Y., 264, in the 2d, 3d, 4th, 5th, 6th and 7th paragraphs of the syllabus—pp. 267 and 270, for argument of counsel, pages 293 et seq., for opinion of court.</p> <p>Quiere.—The crime of being an accessory before the fact to the crime of murder in the first degree merges in the fact of becoming a principal. Buzzell v. State, 59 N. H., 65, 68. Why does not the crime of keeping liquor for unlawful sale merge in the subsequent crime of making the sale? Is there a difference of principle between the two cases?—Reporter.</p>