Volume 65 — Nebraska Reports

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

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

<p>1. Evidence: Joint Liability: Instruction. When evidence tends to show only a joint liability of parties sued jointly on a contract, it is error to instruct jury that finding may be against one or all.</p> <p>2. -: -. Evidence of a joint liability will not support a finding ag'ainst only one of defendants jointly sued.</p> <p>3. Instruction: Lease. An instruction which assumes to tell the jury under what circumstances two of the defendants will be bound by the terms of a lease is erroneous, if it ignores a material condition which has been testified to by both defendants.</p>

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

<p>1. Bank: Nominal Capital Stock: Indebtedness: Certificates oe Deposit: Consideration: Receiver. A bank having a nominal capital stock of $35,000, and an indebtedness besides to the amount of $14,543, — its entire assets being only of the value of $31,400, — issued certificates of deposit for the amount of $13,500 to its several stockholders, and also $13,500 of new capital stock to take up the former capital stock. Held, That the certificates of deposit are without consideration, as against a receiver and creditors of the bank, and that without regard to when the creditors became such.</p> <p>3. -: Receiver: Certificate of Deposit: Limitation. The bank having gone into the hands of a receiver, the latter can main-lain an action to recover payments made upon such certificates of deposit within four years of the time of commencing such action.</p> <p>3. -: Stock: Collateral: Stockholder: Deposit Certificate. , Another bank, which held as collateral a part of the $35,000 of previous stock, and surrendered the same, and accepted in lieu thereof one-lialf in new stock and one-half in certificates of deposit, stands as to this reduction of stock in the shoes of an ordinary stockholder, and can not recover against the receiver on its deposit certificates.</p>

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

<p>1. Petition. Petition examined, and held sufficient as against a demurrer ore terms.</p> <p>2. Evidence. Evidence examined, and held sufficient to sustain judgment.</p> <p>3. Answer. Answer examined, and held not to put in issue the corporate character of plaintiff.</p> <p>4. Insurance: Cancelation oe Policy: Return oe Premium. Under the provisions of section 46, article 2, chapter 43, Compiled Statutes, 1899, an insurance company transacting business in this state must cancel a policy of insurance upon request of the insured, or his legal representative, and return to such party or his representative the net amount of premium, after deducting agent’s compensation and the customary short-rate premium for the expired term.</p> <p>5. -: -: -: Right Absolute: Assignment. After request for cancelation and repayment of unearned premium by the party insured, the right of such party to the unearned premium becomes absolute, and is subject to assignment and recovery thereon by the assignee.</p> <p>6. Conflicting Evidence: Finding oe Court. The decision of the trial court upon questions of fact, regarding which there is a conflict in the evidence, will ordinarily not be disturbed by the appellate court.</p> <p>7. Plea of Ultra Vires: Stranger to Contract. The plea of ultra vires can not be interposed by a stranger to the contract, who can not show a violation of a duty owing to himself.</p> <p>8. Unearned Premium: Commission. Under the provisions of section 46, article 2, chapter 43, Compiled Statutes, 1899, providing for repayment of unearned premium upon cancelation of an insurance policy by request of the party insured, the commission actually paid to the agent or solicitor should first be deducted, and the per cent, of the unearned premium should then be computed on the remainder.</p> <p>9. Stipulation of Facts: Withdrawal. The right of a party to withdraw or amend a stipulation of facts filed in a case is within the sound discretion of the trial court, and the ruling of the trial court with regard thereto will not be disturbed in the absence of abuse.</p>

<p>1. Appeal: Error: Administrator: Executor. On an appeal or proceeding- in error by an administrator or executor from a judgment rendered against Mm by the district court in Ms administrative capacity, no supersedeas bond or other undertaking is required in order to stay the execution of the judgment pending- the appeal. Compiled Statutes, 1901, ch. 23, sec. 338.</p> <p>2. Supersedeas: Bond: Administrator: Erroneous Order or Court. No liability attaches on account of the execution of a supersedeas bond by an administrator not required by statute, executed in accordance with an erroneous order of the district court making its execution a condition precedent to the stay of execution pending the appeal by such administrator.</p>

<p>1. Vacation of Street: Reversion. Where a village board, acting by-virtue of subdivision 37, section 69, chapter 14, article 1, Compiled Statutes, vacates a street, avenue, alley or lane, the land within such street or alley reverts to the owners of the adjacent real estate, one-half on each side thereof.</p> <p>3. Village Board. Where a village board, acting under the provisions of subdivision 38, section 69, chapter 14, article 1, Compiled Statutes, annuls, vacates or discontinues any street or alley, and by ordinance declares such vacation to be expedient for the public good, and all the provisions of the statute’ are observed, such action by the board has all the force and effect of a judgment.</p> <p>3. Village Board: Vacation of Streets and Alleys: Jurisdictional Irregularities. Only such irregularities as are jurisdictional in their nature will render proceedings by a village board in vacating streets and alleys void.</p> <p>4. -: -: Instance of Beneficiary. That vacation proceedings are had by a village board at the instance and request, and primarily for 1hc benefit, of certain owners whose property would be benefited by such vacation, is not ground for declaring the vacation ordinance void.</p> <p>5. Abutting Property Owners: Streets and Alleys: Vacation. That certain abutting’ property owners affected by the vacation of streets and alleys, who have acquiesced in such vacation, were not given notice of the proposed vacation, is not ground for holding the ordinance vacating’ the streets void.</p> <p>6. -: -: -: Subordinate Board: Discretionary Powers: Discretionary Act: Motive. . Where the legislature has vested in a. subordinate board discretionary power to vacate streets and alleys of a village, the courts will not ordinarily look into the the motives influencing such board in doing a discretionary act.</p> <p>7. -: Ordinance. Injunction will not lie to restrain owners oi property abutting upon streets from appropriating the land within such streets, who, in doing so, are acting upon the faith s of an ordinance presumably valid, passed by the village board under the provisions of subdivision 28, section 69, chapter 14, article 1, Compiled Statutes.</p> <p>8. Petition. Petition examined, find held not to state facts sufficient to entitle plaintiff to any relief.</p>

<p>Error from tbe district court for Brown county. Tried below before West over, J.</p>

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

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

<p>1. Cities and Villages: Sidewalks. The duty devolving on cities and villages to keep streets and sidewalks reasonably safe and tit for travel applies to defects in construction as well as neglect to repair, and the safety required extends to travel by nig-ht as well as by day.</p> <p>2. Sidewalks: Termtni Graduated to Natural Level oe Ground. Where a sidewalk is built or suffered to remain on a part of the street only, its ends or termini must be so graduated to the natural level of the street as to permit pedestrians to safely pass from it to the street. Tillage of Ponca v. Crawford, 23 Nebr., 662, 666, followed.</p> <p>3. Negligence: Facts: Conflicting Evidence1: Jury. When facts relied upon to prove negligence are undisputed, but are of such a character that different minds might reasonably draw different conclusions from them, the question of negligence ' should be submitted to a jury for its determination.</p> <p>4. Excessive Damage: Judgment of Jury and Court. Unless the testimony fairly shows the damages awarded by a jury to have been excessive, the judgment of the jury and of the trial court on Ihe amount of damages will not be disturbed by this court.</p> <p>5. Instructions. Instructions examined and approved.</p>

<p>1. Mortgages: Postponement op Prior Lien. It seems that where the agent of a prior lien-holder falsely, but without the knowledge of his principal,. represents that the lien is satisfied, whereby another is induced to loan money upon mortgage on the property, the result is only to postpone such prior lien to the mortgage, not to extinguish it; and hence if the mortgagee acquires the property by foreclosure, paying less than the amount .of the mortgage debt, his remedy on discovering that the prior lien remains unpaid is to foreclose as to such lien, setting- up the facts by reason whereof it should be postponed, or to compel the holder thereof to redeem.from the mortgage, and not to enjoin all assertion of the lien and cut it off entirely.</p> <p>2. Quieting Title: Void Taxes. In consequence of section 144, article 1, chapter 77, Compiled Statutes, an action to quiet title to real property and remove a cloud therefrom, directed against an apparent lien by way of tax or special assessment, is only maintainable in case such tax or assessment itself is absolutely void.</p> <p>3. Tax: Levy: Unauthorized Pureose: Remedy. If the'tax is not Wholly void in itself, nor. levied or assessed for an unauthorized purpose, a person who claims for some other reason that he or his property should not bq held to pay it is left to the remedy provided by said section 144, or to make his defense when the alleged tax lien is sought to be enforced.</p> <p>4. Equitable Estoppel. Whether the doctrine of equitable estoppel may be applied to a municipal coloration acting in its governmental capacity, quwre.</p>

<p>Í. Stock Subscription: Claim: Call. A claim upon a stock subscription payable on call of the directors does not accrue within the meaning of section 262, chapter 23, Compiled Statutes, until a call is made, and then only for the amount oi the call.</p> <p>Estate of Decedent: Cluditors’ Claims: Pj&ss’entmbnt: Court; Commissioners: Form of Claim. Creditors of an estate are not required to present their claims to the county court or to the commissioners appointed to examine claims by formal pleadings; a statement of the nature and amount of the claim in the ordinary form of an account or claim bill is sufficient.</p> <p>3. — - ■ — :--: ---------: Appeal: Pleading. On appeal to the district court from an order of the county court allowing- or rejecting a claim against an estate, pleadings need not be filed unless directed by the court.</p> <p>4. —--:--:--:----: Issues: Trial. Such appeal, as in all other cases, should be tried upon the same issues as those presented below.</p> <p>5. Hew Issue in District Court: Evidence. Where there are no pleadings in the district court, so that it can not be known in advance of trial that either party expects to raise issues not presented below, it is proper to object to evidence offered in support of such new issues at the trial; and the evidence is properly excluded in case it clearly appears from the transcript that such issues are raised on appeal for the first time.</p> <p>6. Claim Against Estate: Assignment After Filing: In Whose Name Prosecuted. Where a claim against an estate has been assigned after filing, it may be prosecuted in the name of the person by whom it was filed.</p> <p>7. Stockholders: Subscription: Good-Faiti-i: Call: Necessity. If made in good-faith for the purposes of the corporation, stockholders, when sued upon their subscription, can not question the necessity of or occasion for a call. The necessity or advisability of making it rests entirely with the directors or officers of the corporation to whom the power has been entrusted.</p> <p>8. Supplemental Answer: Leave to File: Notice. There is no abuse of discretion in refusing leave to file a supplemental answer during the progress of a trial, where no reason appears for not making the application before trial and such application is made without notice and without tendering any proposed answer.</p>

<p>1. Principal and Surety: Creditor May Enforce Securities. A ered- . itor is entitled to enforce for liis own benefit any securities which the principal debtor has given his surety by way of indemnity.</p> <p>2. Securities: Trust: Payment: Principal Obligation: Obligation: Creditor. As such securities are deemed in equity to be held by the surety iu trust for payment of the principal obligation, if the surety assigns them to the creditor, the latter may enforce them, although the surety could not have done so without first discharging such obligation.</p> <p>3. Bond: Principal: Contingent Liability: Sureties: Consideration: Mortgage: Indemnity. The contingent liability of • a principal to the sureties upon his bond, is a sufficient consideration to support a mortgage given to indemnify such sureties after execution and delivery of the bond, and before a breach.</p> <p>4. Deed: Mortgage: Recital: Trustee: Grantee: Sureties: Parol Evidence. Where a deed by way of mortgage recites that the grantee is trustee for sureties upon a bond .of the grantor, parol evidence is admissible to .identify the bond and the sureties referred to.</p> <p>5. County Treasurer: Official Bond: Sureties: Indemnity: Mortgage. A mortgage given by a county treasurer to indemnify the sureties on his official bond is not illegal or void because at the time it was given the g-rantor was suspected of embezzling public funds, and the mortgage was given to protect the sureties in case a defalcation should ensue.</p> <p>6.--:--: -:--: Subrogation: Assignment. Although a county may not demand of a county treasurer anv other or further security than the bond required by law, such fact does not prevent it from taking advantage of securities given by the treasurer to the sureties upon his bond for their ■ indemnity, either by way of subrogation or by procuring an assignment from the sureties.</p> <p>7. Limitation of Liability: Consideration Recited. Where no intention so to limit it can he deduced from the face of the instrument or the circumstances of its execution, the security of a deed, absolute in form, given to indemnify sureties, is not limited to the formal money consideration recited, but extends to the full amount for which the sureties ultimately prove to be liable.</p> <p>8. Mortgage-Debt: Proceedings at Law: Prima-Facie Showing. A prima-facie showing- that no proceedings at law have been had for recovery of the mortgage-debt is sufficient, where no evidence is adduced to the contrary</p>

Action brought by the state in the district court for Douglas county, before Baxter, J., against William A. Paxton and others, sureties on state treasurer’s bond. The ' state and defendants Brown, McNish and Ames, separately prosecute proceedings in error.

<p>1. Hiparían Bights: Grant: Ad Filum Aqtoe. Grants of land bounded upon a river not navigable carry with them the exclusive right and title of the grantee to the centre of the stream, unless the terms of the grant clearly denote the intention to stop at the bank or margin of the river; the rule of the common law being that proprietors of land adjoining public rivers not affected by the flow of the tide own the soil ad filum aquae.</p> <p>2. Grant by General Government: Island. A grant of land hounded upon a non-navigable, river, made by the general government with reference to the plat of the survey, which, shows a meandered line along the river bank, conveys to the grantee title to such unsurveyed islands or parts of islands as lie within that limit.</p> <p>3. Public Lands: Correction ojt Survey: Political. Department op General Government: Collateral Attack. The power to make and correct surveys of the public lands belongs exclusively to tbe political department of the general government, and a plat of a survey made and approved by that department can not be impeached in the courts, except upon a direct proceeding for that purpose.</p> <p>4. Action Quia Timet: Equity Side oe Docket: Dependant’s Answer: Estoppel. A party defendant In an action to quiet title, can not be heard to complain that the action was brought on ■ the equity side of the docket, when by his answer he has invoked the action of the court in his own behalf.</p>

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

<p>Appeal from the district court for Madison county. Heard below before Robinson, J. Rehearing of case reported in 63 Nebr., 607.</p>

<p>Conveyance: Solvent Man: Consideration: Wipe: Child: Moral Obligation to Support. A conveyance without fraudulent intent, by a solvent man, of lands to Ms wife or child, is presumed to have been made in consideration of his moral obligation for the support and maintenance of the grantee, and in the absence of evidence of a contrary intent, will be, held to have transferred the entire title, both legal and equitable; so that the transaction can not be successfully assailed by subsequent creditors of the gvantor.</p>

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

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

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

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

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

<p>Information: Receiving Stolen Property: Intent: Substantive Defect. An information drawn under section 116 of the Criminal Code, which charges that the defendant bought and received stolen prox>erty, knowing it to have ’ been stolen, but which fails to allege that he bought or received it with intent to defraud the owner, is defective in substance, and will not support a conviction.</p>

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

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

<p>1. Preliminary Hearing. The preliminary hearing of a person accused of a felony, provided for by the Criminal Code, is in no sense a trial in which the rights of the accused in respect of his guilt or innocence are adjudicated and determined.</p> <p>2. -: Object and Purpose. The preliminary examination provided for is to ascertain whether the crime charged has been committed and, if so, whether there is probable cause to believe the accused committed it, and if such is found to be the case, to enforce his presence in the district court to answer the charge by either requiring the accused to enter into a recognizance for his appearance in the district court to answer the charge, or in default thereof, committing him to imprisonment to await trial in the district court.</p> <p>3. --: Dismissal. Where a person who is charged with a felony is brought before an examining magistrate for the purpose of a preliminary hearing, the complainant at such hearing may dismiss or abandon such proceedings, and file a complaint for the same offense before another magistrate having authority to inquire into the charge; and upon such inquiry, the accused may be recognized to appear at the district court to answer such charge, and in default of such recognizance be committed to prison to await trial.</p> <p>4. Second Preliminary Hearing. And likewise a second preliminary hearing may be had where the first has resulted in a discharge of the accused.</p> <p>5. District Judge as Examining Magistrate. A district judge, within his district, is authorized to exercise the powers of examining magistrates generally, with respect to preliminary hearings of persons accused of the commission of a felony.</p> <p>6. Larceny: Bringing Goods Into State. The bringing into this state of goods or property stolen in another state is not larceny. People v. Loughridge, 1 Nebr., 11. "</p> <p>7. Instruction. Instruction set out in the. opinion authorizing a conviction of the crime of larceny, where property has been stolen in another state and brought by the thief into this state, held erroneous.</p>

<p>Proceedings in error from the district court for Douglas county. Tried below before Slabaugh and Estelle, JJ.</p>

<p>1. Selling Liquor: Gravamen. The selling of liquor without license forbidden by section 11, chapter 50, Compiled Statutes, is the transfer and disposal of the liquor itself.</p> <p>2. Venue: Locus Delicti. The place of such sale is that where the control of the liquor involved actually passes from the seller to the buyer.</p> <p>3.- — : -: Title: Consignment to Common Carrier. That the articles were paid for and were to be shipped with freight prepaid, and were gparanteed to be according to sample, does not take them out of the general rule that the title to goods ordered from a distant point passes to the purchaser when they are consigned to him and delivered to a common carrier.</p>

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

<p>1. District Court: Jurisdiction: Vacation op Judgment: Code. A district court has no jurisdiction to vacate its own judgment in a cause after the term at which such judgment was rendered except by petition in equity, ®r in accordance with the provisions of section 602 of the Code of Civil Procedure.</p> <p>2. Agreement: Valid Consideration: Surety: Extension oe Payment. An agreement, even upon a valid consideration, between the creditor and one or more of several sureties, extending the payment of the debt as to such sureties, does not operate as a release of other sureties not parties to such agreement.</p> <p>3. Part Payment by Surety: Agreement to Extend. Part payment of a debt, past due, by one or more of several joint sureties is not a sufficient consideration for an agreement extending time of payment between the creditor and such sureties, so as to release other joint sureties not parties to such agreement.</p>

<p>1. Fraudulent Transfer: Consideration: Burden of Proof. When a debtor in failing circumstances makes transfers of his piroperty to near relatives the burden of proving a sufficient con- ' sideration and good faith in the transfer is upon the defendants.</p> <p>3. -: -: —-: Creation of Corporation: Transfer to Corporation. The. same rule applies, where the debtor, when in failing circumstances, organizes a corporation composed of himself and near relatives, and conveys all of the assets of his insolvent estate to such corporation, and then, as the alleged managing officer of such corporation, reconveys the same property to another near relative in the name of the corporation.</p> <p>3. Conflicting Evidence. A judgment of the trial court on evidence •fairly conflicting, will not be disturbed by this court.</p> <p>4. Assignments of Error: Exclusion of Testimony: Tender of Proof. Assignments of error based on the exclusion of testimony are unavailing, unless when the ruling was made the party complaining made a tender of the proof he expected to elicit. Union P. It. do. v. Vincent, 58 Nebr., 171, followed.</p>

Proceedings in error from the district court for Phelps county. Tried below before Beall, J. Common-law liens, as distinguished from contract or statutory liens, attach to the property, without reference to the ownership; and override all other rights in the property; while the latter liens are subordinate to all prior existing rights therein. Sullivan v. Clifton, 55 N. J. Law, 324, 39 Am. St. Rep., 652.

<p>1. Evidence. Evidence examined, and held sufficient to sustain the verdict.</p> <p>2. Continuance: Affidavit: Absent Witness: Materiality of Testimony. An affidavit for a continuance, on the ground of the absence of a witness, which leaves the materiality of such witness in doubt, is fatally defective.</p> <p>3. Verdict: No Breach of Contract: Instruction:' Measure of Damages: Error Without Prejudice. Where, from the nature of the verdict, it is apparent that the jury found there was no breach of contract, whatever error there may be in an instruction as to the measure of damages for a breach of such contract, is error without prejudice, as to the party claiming such damages.</p> <p>4. Instruction: Sympathy. It is not a valid objection to an instruction that tbe matters therein stated to tbe jury for tbeir consideration may create sympathy for one of tbe parties to. a suit, when such matters are proper for tbe jury to consider in arriving at a verdict.</p>

<p>1. De-Facto Officer. One who is in possession of an office, and exercising its functions by virtue of an irregular appointment from the person having lawful authority to appoint, is a de-facto officer.</p> <p>2. Acts of De-Facto Officer. The acts of a de-facto officer, so* far as they affect the public or third persons, are valid.</p> <p>3. Challenge to Jurisdiction: Summons: Coi,lateral Attack. A challenge to the jurisdiction of the court, grounded upon the fact that the summons was issued by an irregularly appointed deputy, is a collateral attack upon the deputy’s official character and can not be sustained.</p> <p>4. Bill of Exceptions: Absence: Presumption. When the evidence upon which the trial court acted in refusing to quash the service of a summons, is not preserved in a bill of exceptions, this court will presume that it was sufficient to warrant the decision.</p>

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

Heard below before Robinson, J. One can not plead agency from a mere course of dealing or custom, unless one has had knowledge of such course of dealing or custom, and has relied upon the same to establish the agency pleaded. The appellee in this case can not plead' an agency of which he had no knowledge from a course of dealing which never even suggested itself to him until this suit was commenced.

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

<p>Foreclosure: Place ce Paymert: Stare Decisis.</p>

<p>Stare Decisis. Garnett v. Meyers, decided at the present session, upon a similar state of facts, is followed, and the decree herein reversed and the cause remanded, with direction to enter a decree of foreclosure as prayed.</p>

<p>1. Bill of Sale: Reversionary Interest: Nominal Consideration: Parol Evidence oe Consideration. A bill of sale of a reversionary interest in funds belonging' to an estate, which recites a- consideration of one dollar, does not prevent evidence by parol that the real consideration was that the assignee should hold the funds on the same terms, and for the same purposes as an executor had previously done.</p> <p>2. Trust in Chattels: Absence oe Fraud: Agreement. As between the parties, and in the absence of fraud, an agreement creating a trust in chattel property need not be in writing.</p>

Error from the district court for Seward county. Action by Lucy Parker, nee Lucy West, against Michael J. Nothomb for bastardy. Tried below before Sornborger, J. The complaint herein made was filed after the marriage of the prosecutrix to one Parker; and the question at issue was whether or not the prosecutrix should be unmarried when she made the complaint as well as when she bore the child. The briefs were full and instructive.

<p>1. Illegal Taxes: Payment: Action: Limitation: Demand. Section 180 of chapter 77, article 1, Compiled Statutes of Nebraska, prevents bringing any action against the county for refunding payments on illegal tax-sale, after five years have elapsed without any demand for a deed or action of foreclosure.</p> <p>2. Tax-Sale Certificate. Where right of action on tax-sale certificate has been permitted to lapse, it carries with it all right to recover for subsequent taxes paid by the purchaser on the same property.</p>

<p>1. Theory of Case: Instruction: Pleadings: ■ Issue: Competent Evidence. A party, to an action is entitled to have the jury instructed with reference to his theory of the case, when the pleadings present the theory as an issue, and it is supported by competent evidence.</p> <p>2. Disputed. Account: Settlement: Consideration. When there is a bona-fide dispute between parties as to the amount due upon an account, and the debtor tenders a less amount than the claim in full settlement, which the creditor accepts, with knowledge that it was tendered as a full settlement, the disjmte will be a sufficient consideration to uphold the settlement, and will bar a recovery upon the remainder of the claim.</p>

<p>1. Bond for Deed: Pubciiase Pbioe: Notes: Reservation oe Legal Title: Mortgage. Where the vendor of real estate executes to the vendee a bond for a deed, .the vendee giving notes for the purchase price, the reservation of the legal title by the vendor is security for the payment of the purchase price, and upon default of the vendee, the vendor may treat the contract as a mortg’age, and foreclose it as such.</p> <p>3.-: -■: -: Transfer of One ok Moke Notes. When the vendor transfers one or more of a series of notes, given for the purchase price, executed by the vendee under a bond for a deed, such assignment carries with it an equitable assignment pro tanto of the lien of the vendor upon the land conveyed.</p> <p>3. Assignee: Judgments of Record. The assignee of the purchase- , money notes given by the vendee takes subject to judgments of record against the vendor at the time of the assignment.</p> <p>4. Rights of Assignee. The rights of the assignee of purchase-money notes g-iven by the vendee under a bond for a deed, as against a mortgagee or purchaser in good faith, are to be determined by the recording’ acts of the state rather than by the law of negotiable instruments; and if the assignee fails to procure from the vendor, and record, an assignment of the notes to him, a subsequent purchaser or incumbrancer of the vendor, without notice of the assignee’s rights, will be protected.</p> <p>5. Lien of Judgment. The lien of a judgment obtained against a vendor who has given a bond for a deed, attaches only to the purchase money remaining unpaid and due to the vendor.</p>

<p>1. Bill of Exceptions: Petition in Equity: New Trial: Lost Record. Where a bill of exceptions has been duly settled, allowed and filed with the clerk, a new trial will not be granted in an action at law upon a petition in equity, where it is not made to appear that the lost bill can not be supplied as other lost records.</p> <p>2. -: New Trial: Quesee. Whether a court of equity will grant a new trial in an action at law on account of the loss of a bill of exceptions duly settled, allowed and filed with the clerk, qucere.</p> <p>3. Petition. Petition examined, and held not to state facts sufficient to entitle plaintiff to equitable relief.</p> <p>4. Evidence. Evidence examined, and held sufficient to sustain the finding and judgment of the trial court.</p>

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

<p>1. Husband and Wife: Liability or Wire rob Maintenance or Sick Husband. When a husband is actually a part of the family, living with it as such, and is temporarily helpless and incapacitated by illness, his maintenance and support, including necessary medical attendance, comes fairly within the rule of the statute which makes the wife liable as surety for necessaries furnished the family.</p> <p>8. -: -■ — : Foreign Judgment Against: Return or Execution Nulla Bona: Condition Bbecedent. In such case, where the husband and family, including the wife, remove to a sister state, and no judgment can be obtained against him in this state, the obtaining of a judgment against him in the courts where he resides, causing an execution to issue thereon, and having it returned unsatisfied, is a sufficient compliance with the provisions of section 1, chapter 53, of the Compiled Statutes, to sustain an action against the wife to recover for such medical attendance.</p> <p>1. Husband and Wife: Medical Attendance: Family Necessity: Statute. The husband, while living with his wife, is part of the family, and medical attendance of which he stands in need is a family necessity, within the meaning of section 1, chapter 53, of our Compiled Statutes.</p> <p>2.-: -: -: -: Bemoval to Sister State: Judgment against Husband: Execution: Beturn Hulla Bona. Where medical attendance is furnished the husband under the circumstances mentioned in the first héadnote, and while the family are residing in this state, and the family afterward remove to a sister state, a judgment against the husband in the state to which he has removed, and the return of an execution 'unsatisfied, is a sufficient compliance with our statute to entitle the creditor to proceed against the wife for the collection of his demand.</p>

<p>1. Corporation: Stock: Statute: Dealing in its Own Stock. A corporation, when not prohibited by its articles or by statute, may buy and sell its own stock, and hold, reissue or retire the same, provided such act is done in entire good faith and in no manner injures the rights of its creditors or its stockholders.</p> <p>2. Contract: Non Ultra Vires: Rights oe Purchaser. A contract with a corporation by which it sells certain of its shares of stock and agrees to repurchase the same upon the happening-of a certain specified event, is not ultra viren; and for a breach thereof the purchaser may recover of the corporation the amount agreed ujion as the price of such repurchase.</p> <p>S.-:-:-: Benefits Retained: Remainder Repudiated. Where such a contract has been made by the corporation, by and through its president and general manager, it will not be permitted to receive and retain the benefits of a portion thereof and repudiate and reject the remainder. Oitieenn' Atate Bank v. Pence, 59 Nebr., 579.</p> <p>4. Corporation: Shares oe Stock: Contract op Purchase. A contract for the purchase of certain shares of stock in a corj>oration and for the repurchase of the same Upon the happening of a certain event, where it has been fully performed by one of the parties thereto, is not within the statute .of frauds.</p> <p>5. -: Agent: Acts Which Create no Personal Liability. Where one acting as the agent of a coloration makes a contract on its behalf, which is binding upon it, his acts in that behalf create no individual or personal liability against him.</p>

Error from the district court for Clay county. Tried below before Stubbs, J. Replevin is not available to compel completion of performance of contract. A justice’s jurisdiction is limited to the sum of $200. The certificate in this case, on its face, was of the value of $1,000. The only possible remedy is by a suit for damages before a court of competent jurisdiction.

<p>1. Employment of Females: Regulation: Title or Act: One Subject. The act of the legislature approved March 31, 1899, “To regulate and limit the hours of employment of females in manufacturing, mechanical and mercantile establishments, hotels and restaurants; to provide for its enforcement and. a penalty for its violation,” contains but one subject, and in its terms is no broader than' its title, in which its subject is clearly expressed.</p> <p>2. Amendment: Complete Act. Such law does not amend the act of 1883 to protect the health of female employees in stores, offices and schools. It is an act complete in itself, and is not repugnant to the provisions of section 11, article 3, of the constitution.</p> <p>3. Class Legislation. The law as expressed therein has a uniform and general application to all women employed in the establishments described therein, and is not class legislation, within the meaning of section 15, article 3, of the constitution.</p> <p>4. Right to Contract: Police Power: Due Process oe Law: Constitution. The act, in effect, is only a fair and reasonable exercise of the police power. It does not deprive any citizen of his property, or the reasonable use thereof, without due process of law. It does not prohibit the right of contract. It merely regulates the same in a reasonable manner. It is therefore not in conflict with the constitution, and is in all things valid.</p>

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

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

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

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

<p>1. Instructions: Issues: Reference to Pleadings. It is the duty of the trial court to state to the jury the issues which they are to find. Reference to the pleadings instead of statement of the issues directly, is a reprehensible practice and may be ground for reversal, unless, under the circumstances, the error appears to have been without prejudice.</p> <p>2. -: Burden of Proof:' Facts Pleaded. An instruction that a defendant who had admitted execution of the note sued on had the burden of proving “the material allegations” of the answer in which he set up an affirmative defense, without stating the issues raised upon such answer, held without prejudice where the allegations therein were few in number, plain, and simply expressed, and. all material, and another instruction, stating the rules of law applicable to the defendant’s case, set forth what he must establish substantially to the same effect as the facts pleaded.</p> <p>3. -: -: Preponderance of Evidence. It is not error to instruct that the party having- the burden of proof must establish his case by a “fair preponderance” of the evidence.</p>

<p>1. Assignment of Error. The rulings complained of in a petition in error must be described in such way that they can be identified with reasonable certainty.</p> <p>2. Pleading: Admission: Plea of Payment. An allegation that defendant has paid for all goods “received by him in the transaction described by plaintiff in his petition” amounts to an admission of the sale and delivery of goods as alleged in the petition, and a plea of payment.</p> <p>3. Plea of Payment: Payment by Agent: Burden oe Proof. A defendant, who pleads payment, and in support thereof shows payment to a third person, claimed to be agent of the vendor, has the burden of showing the authority^ real or apparent, of the person to whom such payment was made.</p>

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

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

<p>Dormant Judgment: Lien: Decree foe Specific Sale of Realty. Section 482 of the Code of Civil Procedure, which provides when a judgment shall become dormant and cease to operate as a lien on the real estate of the judgment debtor, does not apply to a decree for the sale of specific real property.</p>

<p>Fraud: Party in Pari Delicto: Ills sal Act: Baris for Recovery: Public Policy: Relief. A party in pari delicto can not make his illegal act a basis of recovery; bat where the stronger mind takes possession of the weaker, or where through ignorance and without any intent to violate the law, one is led by fraud and misrepresentation to the performance of an act against public policy, the courts will not deny him relief against those whose fraud persuaded him to the act, and who seek to profit therefrom.</p>

<p>1. Servant: Risk of Employment: Notice of Law of Gravitation. A servant assumes tiie ordinary risks and dangers of the employment upon which he enters, so far as they are known to him, and so far as they would have been known to one of his age, experience and capacity by the use of ordinary care; and he is bound to take notice of the ordinary operation of familiar laws of gravitation, and he assumes the risks necessarily incident thereto.</p> <p>2. Evidence: Directing Verdict. When the evidence introduced by the plaintiff is insufficient to prove a cause of action, it is the duty of the court, upon the request of the defendant, to instruct a verdict in his behalf.</p> <p>Evidence: Finding. Evidence examined, and found to support the finding of the jury.</p>

<p>1. Personal Injury: Petition: Negligence: Omission oe the Word “Negligence”: Allegation oe Facts. A petition in an action for personal injuries that states facts and circumstances from ■which the inference of negligence hy the defendant is inevitable, is not defective for omitting the use of the word “negligence,” or its derivatives.</p> <p>2. Evidence: X-Ray Pictures. Under the proper precautions and with necessary explanations, what are known as “X-ray pictures” are admissible in evidence for the purpose of showing the condition of the internal tissues of the body.</p>

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

<p>Draft: Officer of Corporation: Debt: Third Party: Promissory Note. A draft, drawn by an authorized agent of a corporation, on such corporation or the treasurer thereof in favor of a third 'party, for a debt due such third party from the corporation, is, in effect, the promissory note of the corporation.</p>

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

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

<p>1. Sale of Personal Property: Agent: Commission: Delivery: Time. Wliore the owner of personal .property delivers it to another for sale on commission, and no time is fixed within which such sale is to be made, the law will imply a reasonable time.</p> <p>2. -: -: -: -: —--•: Bailee: Petition. In such case, where the owner seeks to recover possession of the property from his bailee, a petition which does not allege that a reasonable time has expired for making such sale, is fatally defective.</p> <p>3. Petition: Allegation: Instruction. In the absence of such allegation, instructicns submitting the question of conversion to the jury, are erroneous.</p>

<p>Confirmation of Judicial Sale: Objections. Objections to confirmation of sale of real estate made under a decree in foreclosure proceeding's examined, and lieli that the order confirming the sale is without error.</p>

<p>Eeror from tlie district court for Clay county. Tried below before Stubbs, J.</p>

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

Error from the district court for Box Butte county. Tried below before Westover, J. Two distinct legal questions are presented by this record: 1st. Under the Ames Law, can a board authorized to grant license, after having declared itself in favor of license, and having granted license to certain licensees, arbitrarily refuse license to other applicants, who have strictly complied with the requirements of the law, and entitled to license save for the caprice of the board? 2d.…

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

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

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

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

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

<p>Mortgagee of Chattels: Ratification of Unauthorized Sale. A mortgagee of chattels will he held to have ratified an -unauthorized sale of the mortgaged property by knowingly receiving and retaining the proceeds of such sale.</p>

<p>1. Malicious Prosecution: Action eor Damages: Probable Cause: Question eor Court. Tn an action to recover damages for malicious prosecution when the facts are not in dispute, the question of probable causé is a question of law for the determination of the court.</p> <p>2. -: -: -: Instruction. In an action grounded on an alleged malicious prosecution it is not error to give an instruction defining probable cause in connection with other instructions in which the jury are told what facts, if established by the evidence in the particular case, would or would not constitute probable cause.</p> <p>3. Probable Cause. Whether there was-probable cause for instituting a criminal action is a question to be determined from a consideration of the facts and circumstances of which the defendant had, or should have had, knowledge when the prosecution was commenced; facts coming- to his nolice after the trial of the case can not he taken into account.</p> <p>4. Malicious Prosecution: County Attorney: Advice: Criminal Action: Statement oe Facts: Liability. A party who' lays all the facts which he knew, or should have known, before the county attorney, and acts in good faith upon his advice, has probable cause for inslitnling a criminal action, and is, therefore, not liable to an action for malicious prosecution.</p> <p>5. Action for Malicious Prosecution: General Denial: Prooe: Good Faith: Advice oe County Attorney: Disclosure. In an action for malicious prosecution, the defendant may, under a general denial, show that in setting- the prosecution on foot, he. acted in g-ood faith, on the advice of the county attorney, after having made a full disclosure of all the material circumstances of which he had knowledg-e.</p> <p>6. Evidence: Verdict. Evidence examined, and found sufficient to sustain the verdict.</p> <p>7. Jury: Criminal Care: Verdict: Presumption: Probable Cause. The lawfully constituted triers of fact in criminal cases are-to he _ regarded as reasonable men; and where they, upon consideration oC the evidence, find guilt beyond a reasonable doubt, it will, in the absence of siiecial circumstances, be presumed that there was probable cause for the prosecution.</p> <p>8. Probable Cause: Presumption From Conviction: Probative Force oe Verdict. The presumption of probable cause arising- from conviction is a disputable presumption, and may be overcome by evidence which destroys the- natural probative force of the verdict or finding upon which the sentence is based.</p> <p>9. Instructions. If the instructions, when considered together, fairly and clearly state the law of the case, they furnish no ground for reversing the judgment.</p>

<p>1. Pleadings: Issue: Evidence: Finding: Fact: Existence: Assumption: Instruction: Error. AYhere the pleadings raise an issue of fact, and under the evidence but one finding can be justified, it is not error for the trial court to assume the existence of the fact so established, and instruct the jury accordingly.</p> <p>2. Mortgage: Deed Absolute: Form: Security: Security for Debt: Agreement of Parties. A deed absolute in form will be treated as a mortgage when it is given to secure payment of a debt, although the parties may have agreed that upon default of iiayment the deed should become absolute. State Bank of O’Neill c. Mathews, 45 Nebr., 659.</p> <p>3. Duress: Instruction. Instruction copied in the opinion as to what constitutes duress examined, and held the giving' thereof not erroneous.</p> <p>4. Petition: Evidence. Petition examined, and held to state a cause of action, and evidence held sufficient to support the verdict of the jury.</p> <p>5. Mortgage: Deed: Form: Security of Debt: Payment of Excess: Duress: Recovery of Excess. One S. had conveyed, by a warranty deed absolute in form, to a bank certain real estate as security for an indebtedness owing by S. to the bank. S. was in financial distress, and had no means of meeting his indebtedness save by a sale of the real estate. The bank thereafter assumed to be the absolute owner of the property and denied to S. any right, interest .or equity therein, and by injunction proceedings undertook to dispossess him of a portion of such land. S. procured a purchaser at an advantageous price, and endeavored to adjust his differences with the bank, so as to effectuate a* sale of the property, and meet pressing- demands against him. The bank refused to consent to a sale or release its interest or reconvey the premises to S., so that a sale might be consummated without the payment by S. of a large sum of money in excess of the amount justly due. Held, Under the facts and circumstances as disclosed by the record, that the payment of the excess over and above the amount justly due was made under duress and compulsion, and might be recovered back in an action brought for that purpose.</p> <p>6. Written Agreement: Compromise: Evidence. At the time of making the arrangements for the payment of the sum demanded, a written agreement was entered into in the nature of a compromise or settlement of the differences existing between the parties, which was accepted and acquiesced in ‘ by S. so as to regain control of the land, be able to effectuate a sale of the property, and extricate himself from his financial difficulties. Held, That the jury was justified, under the evidence, in finding that the agreement was vitiated, because of duress, for the same reason and to the same extent as the overpayment was the result of legal duress.</p> <p>7. Instructions: Substance of Pleadings: Issues of Fact: Error. Instructions of the court in stating the substance of the pleadings and the issues of fact to the jury examined, and found that the issues we,re submitted fairly to both parties, and that no error was committed by such instructions.</p> <p>8. Other Errors. Other alleged errors examined, and found to be without merit.</p>

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

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

<p>1. Expert Witness: Speed of Train. A witness accustomed to observing the running of trains, and who observed one at the time of an accident, and noticed its 'speed, may give his opinion, together with all the facts on which it is based, as to the rate of speed at which the train was running. Chicago, B. & Q. R. Co. v. Ciarle, 26 Nebr., 645.</p> <p>2. City Ordinance: Proof of Adoption. Proof of adoption of an ordinance of a city is indispensable where objection is made on that ground.</p> <p>3. Evidence: Contributory Negligence: Instruction. Evidence held not to require a peremptory instruction for defendant on the ground of contributory negligence.</p> <p>4. Measure of Damages: Instruction: Signal. Where the measure of damages is fixed, an incidental mention in the instructions of a penalty for failure to give signals, is not prejudicial error.</p> <p>5. City Ordinance: Instruction: Failure to Give: Negligence. Instruction that a failure to give signals of warning of train, as required by city ordinance, should be considered in deciding as to negligence in hilling cattle, is not erroneous because of a failure to repeat, in that connection, an instruction that to authorize a recovery such negligence must be the proximate cause of the damage.</p> <p>6. Similar Distraction: Running Trains: Ordinance: Similar Objection. A similar instruction as to running trains faster than an ordinance allowed upheld against a similar objection.</p> <p>7. Plaintiff’s Evidence: Danger. Where plaintiff’s evidence, if believed, warrants an instruction as to tbe effect of “sudden and unexpected danger,” it is not error to give such instruction in proper terms.</p> <p>8. Danger: Evidence: Visible and Audible. In the absence of visible or audible evidence of danger, there is no requirement that a passer stop, as well as “look and listen,” before attempting to cross railway track.</p> <p>9. Refusal to Instruct. Not error to refuse to charge that attempting voluntarily to cross in front of a train on the assumption that its speed was no greater than a city ordinance allowed, was negligence, where there was no evidence of plaintiff’s acting on such assumption.</p>

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

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

<p>1. Fees: Official Services: Statute: Excessive Charge. An officer can only charge such fees for the performance of official services as are authorized by statute, and any charge in excess of the fees provided by statute is illegal and unauthorized.</p> <p>2. Sheriff: Commission: Money Paid Directly by Debtor to Creditor. Under the provisions of section 5, chapter 28, Compiled Statutes, a sheriff is authorized to charg-e commission only upon moneys actually received and disbursed by him; and where the decree is satisfied prior to sale, and the money is paid directly by the execution debtor to the creditor, a commission charged by the sheriJi on such money is illegal and unauthorized.</p> <p>3. Pifty-Dollar Penalty: Motion to Retax Costs. The fact that a litigant against whom the sheriff has charged and collected fees not authorized by law has a remedy by motion to retax costs, does not deprive him of his rig'ht to proceed against the sheriff and his bondsmen under section 34, chapter 28, Compiled Statutes, for the recovery of the fifty-dollar penalty therein provided.</p> <p>4. Action Against Sheriff and Bondsmen: Copartnership: Individual Members. A cause of action in favor of a copartnership against a sheriff and his bondsmen to recover the penalty provided by section 34, chapter 28, Compiled Statutes, does not abate by the dissolution of the copartnership, but survives to the individual members of such copartnership.</p>

<p>1. Action for Purchase Price: Consideration: Creating Demand: Instruction. In a suit to recover the purchase price of goods sold and delivered, where the vendor agreed at the time of the sale to create a demand for them by advertising, and only partially complied with such agreement, it is error to charge the jury that plaintift is not entitled to recover anything for the goods.</p> <p>2. Damages: Anticipated Profits. Damages in the nature of anticipated profits on conjectured, expected or hoped-for sales, can not be recovered. Such damages are too speculative, remote and consequential; they lack the element of certainty necessary to authorize a recovery therefor.</p> <p>3. Evidence. Evidence examined, and held not sufficient to sustain the verdict.</p>

<p>1. Trial: Case Reserved. Under sections 438 and 439, Code of Civil Procedure, the trial court after verdict may order the case reserved for argument or consideration of some point of law, and on consideration thereof render such judgment as ought to be had in view of its decision upon said point.</p> <p>2. Case Reserved: Must Be on Specific Point. This power exists only with reference to specific points of law arising upon the pleadings or the evidence. A case can not be reserved after verdict upon the general question whether, under the evidence, the plaintiff is entitled to recover.</p> <p>3. Directing Verdict: Motion for New Trial. If the trial court is of opinion that, in view of plaintiff’s evidence, it erred in submitting the case to the jury and should have directed a verdict for the defendant, the proper course is to grant a new trial.</p> <p>4. Case Reserved: Point Must Be Stated. Where a case is reserved after verdict for further consideration, the point or points of law upon which it is reserved must be stated specifically in the record.</p>

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

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

<p>Injunction: Motion to Dissolve : Affidavit: Court Records: Counter-Affidavits. Where a motion to dissolve an injunction is based on affidavits and copies of coui-t records, the plaintiff is entitled to file counter-affidavits, and to a reasonable time to investigate the facts set out in the affidavits of his adversary, and to prepare and file such counter-affidavits.</p>

<p>1. Agreement: Erection- of Structure: Payment of Money in Lieu Thereof: Election. Where an agreement gives one of the parties thereto the option to erect and maintain a structure of a certain description, or to pay a specified amount o£ money in lieu thereof, and tijie party exercises his election by building- the structure, such election is final, and he can not relieve himself from maintaining the structure by tendering payment o,f the money.</p> <p>2. Action for Specific Performance. On action brought to compel specific performance of a contract to maintain a structure of a certain description under the circumstances mentioned in the first syllabus, the defendant, on the trial, tendered to the plaintiff payment of the money, which the defendant might, in the first instance, have paid in lien of the work to be done. Held, That this was an admission that the contract had been made as claimed by tbe plaintiff, and defendant could not thereafter complain that the plaintiff’s petition was defective or his evidence insufficient to establish the contract.</p> <p>3. Eailroad: Eight op Wat: Agreement: Track Crossing. Where land for right of way is conveyed to a railroad company under an agreement that one or . more under-tracls crossings of certain specified dimensions are to be built and maintained ' for the convenience of the grantee in working the land across which the road is constructed, a court of equity will decree specific performance of the contract and not leave the grantee to his action for damages, when specific performance will 'alone answer the purpose of justice.</p>

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

<p>1. Petition: Corporation: Statutory Obligation: Statutory Proviso. A petition in an action to enforce against a public corporation a purely statutory obligation, is demurrable, unless it states all tbe facts necessary to make tbe alleged liability, complete. And in sucb cases, tbe party must bring bimself witbin tbe terms of a statutory proviso.</p> <p>2. County: Poorhouse: Pauper. In counties maintaining a poorhouse, townships are not chargeable with the support of the poor.</p>

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

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

Error.from the district court for Cedar county. Tried below before Craves, J. The court erred in overruling defendant’s motion to require plaintiff to make his petition more definite, specific and certain, in that he be required to set out in what manner the stallion killed the mare.

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

Original proceeding in mandamus to compel the state board of equalization, consisting of Ezra P. Savage, governor, Charles Weston, auditor, and William Stuefer, treasurer, to reassemble as such board, and to compel the respondent, Charles Weston, to proceed immediately to collect the information as required by sections 32, 39 and 40a of chapter 77, Compiled Statutes, entitled “Revenue,” or in such other manner as may appear to be most effectual, and to compel said board to…

<p>Executory Contract: Family Homestead: Non-Pp^pormanoe: Action: Damages eob Loss oe Bargain: Wipe Not Party. Under section 4, chapter 36, Compiled Statutes of Nebraska, an executory contract for the sale of the family homestead, to which the wife is not a party, is invalid, and its non-performance does not furnish a basis for a recovery of damages for the loss of the bargain.'</p>

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

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

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

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

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

Error from the district court for Douglas county. Tried below before Baxter, J. John Henry Loechner indicted for malfeasance in office; demurrer to indictment; demurrer sustained; state brings error; exceptions of county attorney sustained.

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

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

Error from the district court for Sheridan county. Tried below7 before Westover, J. One Loveldn was prosecuted in the county court for larceny on the information of one Eicldey. Loveldn w7as acquitted, and the jury found the information without probable cause. Judgment for costs against Ricldey. Ricldey brings error. Reversed on the ground that section 322 of Criminal Code is contrary to the due-process clause of the constitution.

<p>Misjoinder: Divorce: Property Rights: Marriage Relation: No Objection. Tlie determination of property rights not growing out pf the marriage relation should not be joined with an action for divorce, but when such rights are asserted in the petition for a divorce and no objection is made to the misjoinder, the court should hear and determine the controversy.</p>

Error from the district court for Gage county. Tried below before Letton, J. In the year 1899, Miss Edith Beecher was a teacher employed in the public school of district numbered 21, in Gage County, Nebraska. She asked and obtained leave of the school board to have religious exercises in her school. Under the license she prayed, read the Bible and with her scholars sang gospel hymns.

<p>1. Married Woman: Damages for Personal Injury: Separate Estate: Diminished Capacity to Earn. A petition by a married woman in an action for damages for a personal injury, which does not allege that she is or has been or anticipated being the owner of any separate estate or property, or engaged in any trade, business or service, or the performance of any duties except those pertaining to her husband’s household, does not entitle her to recover damages on account either of loss of earnings already incurred, or of her diminished capacity to earn money as the result of the injury.</p> <p>2. Life Expectancy: Evidence: Constitutional Disease. When it is shown that a person is affected by a serious constitutional disease or a tendency thereto, it is error to submit to the jury the question of his expectancy of life, in the absence of any evidence bearing upon that question.</p>

Error from the district court for Merrick county. Held: A land-owner is ordinarily under no obligation to a mere licensee or to a trespasser to keep his premises in a safe condition; and the fact that the licensee or the trespasser is an infant of tender years affords no reason for modifying this rule, and charging the land-OAvner with a duty Avhich does not otherwise' exist.