Volume 66 — Nebraska Reports

<p>1. Mortgage Lien: Personal Property: Value of Property: Less Than $2,000: Discharge of Mortgage: Pension Money: Exemption: Code. Where a mortgage lien on personal property less than $2,000 in value is equal to or greater than the value of such property, and the mortgagor discharges such lien with money received as a pension from the United States, such property is exempt from execution, under the provisions of section 5316, Code of Civil Procedure.</p> <p>2. Exemption: Exchange: Limitation. The exemption provided by-said section extends to property taken in exchange for the property therein mentioned, as well as to the increase of such property, subject to the limitation therein fixed as to the amount.</p>

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

<p>- 1. Constitutional Law: Modification of Statute. Changes or modifications of existing statutes as an incidental result of adopting a new law covering the whole subject to which it relates, are not forbidden by section 11, article 3, of the constitution.</p> <p>2. ———■: -: Primary Election Law. The primary election law (Session Laws, 1899, ch. 27) being an original enactment, complete in itself, does not contravene section 11, article 3, of the constitution, although section 6 operates indirectly as an amendment of section 1 of the general registration law.</p>

<p>' ORIGINAL application for a writ of mandamus to compel the respondent, as district judge, to vacate an injunction.</p>

<p>1. Larceny: Evidence: Verdict. Evidence examined, and held, sufficient to support a verdict of guilty of larceny, as found and returned by the Jury.</p> <p>2. -: -: -: Joint Owners: Non-Consent. In the trial of an accused charged with the larceny of property from two joint owners, where - one acquainted with the facts and circumstances surrounding the talcing testifies thereto, and that the taking was without the knowledge and consent of the owners, and the defendant testifying in his own behalf denies any knowledge of or participation in the alleged larceny, it can not be, said the evidence is insufficient to support a verdict of guilty on the ground that non-consent is not sufficiently established.</p>

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

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

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

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

<p>1. Allegata Petitionis. Allegations of petition held to sufficiently • show that plaintiff’s judgment is based upon indebtedness contracted before the transfers of the property complained of.</p> <p>2. Petition: Facts. Petition held to set out facts sufficient, if true, to avoid the conveyance in question, for fraud.</p> <p>3. Creditor’s Remedy. Held, that a creditor will not be required to exhaust the statutory proceedings in aid of execution beforé resorting to equity, to charge another creditor for chattel property fraudulently obtained and disposed of by the latter.</p> <p>4. Mortgage Void as to Creditors. A mortgage .on $4,200 worth of merchandise, given to secure $2,181.23, to which is added $500 then advanced by the mortgagee to the debtor on the latter’s plea that he is entitled to $500 exemptions, where the mortg-agee is chargeable with notice that the debtor has other obligations whose payment he is seeking to av.oid, and no other estate available, is fraudulent and void as to creditors whose claims antedate the mortgage, and who have no part in its making.</p>

<p>1. Money Paid Out: Action: General Denial: Amendment: New Issue. Where plaintiff’s claim is for money laid out and expended for defendants at their request, and is met in the county court by a general denial and an allegation that the money was paid by plaintiff as guarantor of a note signed by defendants, but which subsequently had been altered in various material respects without defendants’ assent, and that its payment was never requested by the answering’ defendant, a subsequent amendment.in ihe district court by which the answering- defendant stated that he was a surety only, and that the money was paid out for the other defendant’s benefit and at his request, introduces no new issue.</p> <p>2. Instruction: Alteration oe Instrument. An instruction that a material alteration of the note, if shown, would be available to the defendant .only in case the jurjr found that he was surety, and that the plaintiff, when making- the alteration, knew that fact, held erroneous, but binding upon the jury.</p> <p>3.-: Conflicting- Evidence: Notice: Suretyship Delation. A verdict under such an instruction, rendered on conflicting evidence as to the question of ratification by defendants as a partnership, can not be upheld when there was no evidence of notice to plaintiff .of any suretyship relation on the part of the answering defendant in the transaction, since the verdict is contrary to the trial court’s instruction.</p>

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

<p>1. 'Constitutional Provisions: Construction: Ordinary Meaning: Context: Technical Sense. In construing constitutional provisions, the rule prevails that words shall be given their ordinary meaning, except where the context makes it plain that they have been used in a technical sense.</p> <p>2. What Constitutes a Bank: Commercial Paper: Negotiation oe Loans: Selling Exchange. To buy and sell commercial paper, to make and negotiate. loans, to receive money to be transferred to and paid at other places, to buy and sell exchange upon other cities in this and foreig’n countries, to receive money on deposit, and to pay the same out upon cheeks .or orders, are each banking- functions; but it is not-necessary, in order to constitute a corporation a banking institution within the meaning' of section 7, article 317), of the constitution, that it shall exercise all of these functions.</p> <p>3. ———•: Statute: Charter: Construction by Officers. In determining' whether or not a corporation is a hanking- institution within the meaning' of section 7, article 116, of the constitution, the court will look to its articles of incorporation, its declared objects and purposes, the character of the business transacted by it, and even the construction which the officers themselves, in their management of its affairs, place upon its charter Iiowers, if this construction is not unwarranted by the language of its charter.</p> <p>4. Corporation: Nature of Business: Bank: Liability of Stockholders. A corporation filed articles providing', among other things, that the general nature of its business should be to make and negotiate loans, to purchase and sell notes, mortgages, stocks and bonds, to borrow money and issue its .own obligations therefor, to receive money on deposit, and to execute trusts. It received money on deposit, and paid the same out on checks; it bought and sold commercial paper; it made and negotiated loans; it bought and sold exchange upon other cities, and also transacted much of the business of a loan and trust company. It designated itself a “loan and trust company.” Held, That it was a bank, and its stockholders were liable under the provisions of section 7, article 116, of the constitution.</p> <p>5. What Constitutes Res Judicata: Identical Issue: Identity op Parties. In order that a judgment in a prior suit may be a bar to a subsequent action, it must appear either by the record, or by clear and satisfactory evidence, that the identical issue presented by the subsequent suit was involved or adjudicated in the prior suit, and that both actions are between the same parties or their privies.</p> <p>6.-: -- — : -: Removal op Receiver. An adverse ruling on a motion, the principal purpose of which is to secure the removal of a receiver on the ground that he is a stockholder of the corporation, and therefore not a suitable person to enforce the stockholders’ liability provided for in the ease of banking institutions, is not an adjudication of the question whether the corporation is a banking institution within the meaning of section 7, article 116, of the constitution; but such ruling will leave the party free to litigate the question of the stockholders’ liability in another court of concurrent jurisdiction.</p> <p>7. Bank: Liability op Stockholders: Authority op Receiver. The liability of stockholders of a banking institution to its creditors, imposed by section 7, article 116, of the constitution, is not an asset of the corporation, collectible by suit or assessment by the officers of the corporation or a receiver acting in their stead, but is a subject-matter wholly distinct from that of the assets of the corporation; and a receiver can proceed to the enforcement of such liability only at the instance of the cred- ' itors themselves, and by direction of the court, and then only after the claims of the creditors have been judicially ascertained, and the assets of the corporation exhausted.</p> <p>8. Evidence: Finding. Evidence examined, and found not to sustain the finding and judgment of the trial court.</p>

<p>1. Landlord and Tenant. A tenant can not dispute his landlord’s title, hut in an action by a lessor to recover rent, the lessee may show that the lessor has sold and conveyed the premises to another by a deed of general warranty, without reserving the rent thereafter to become due.</p> <p>2. Sale of Heal Estate: Rent. One who has conveyed his land to a third person by deed, without reserving the rent to become due thereafter, can not recover such rent.</p> <p>3. Tenant: Action by Lessor: Title Paramount: Eviction: Possession. A tenant under such circumstances may defend against an action by the lessor to recover such rent, without having. been evicted by title paramount, or disturbed in bis possession during1 tbe term.</p> <p>4. Conveyance by Lessor: Pleadings: Preservation of Bent: Issue: Jury. Tbe lessor, notwithstanding be has conveyed the land to a third person, may reserve tbe rent by separate written instrument or otherwise; and where that fact is put in issue by tbe pleadings, tbe evidence on both sides should be received, and tbe question submitted to tbe jury, under proper instructions.</p>

Error from the district court for Stanton county. Action on' account for goods sold and delivered, by Deere, Wells & Company against Gustav H. Lindell and another. Tried below before Graves, J. Judgment for plaintiff. Lindell brings error.

Error from tbe district court for Lancaster county. ’Action by drawees against maker, upon a check drawn and never presented. Tbe facts appear in tbe opinion. Tried below before Holmes, J. Judgment for plaintiffs below. Sedgwick, J., dissenting.

ERROR from the district court for Lancaster county. Tried below before Tuttle, J. Rehearing of case reported in 64 Nebr., 62. Plaintiffs, in 1896, brought suit against the railway company, in the county court of Lancaster county, to recover the sum of six hundred dollars as the purchase price of certain land. See bill of exceptions, pages 67-69.

Error from the district court for Lancaster county. Replevin action, by the Pekin Plow Company against Frank E. Parks. Claude S. Wilson, as trustee in bankruptcy of defendant, intervened. On trial the nisi-prius judge directed a verdict for defendant, which direction by the court is assigned as error. Tried below before Frost, J.

ERROR from the district court for Dakota county. Suit on fire insurance policy. Tried below before Kinkaid, J. An agent of an insurance company may orally waive the terms of a policy of insurance notwithstanding the fact that the policy contains a clause prohibiting such waiver unless it is indorsed on the policy in writing. Westchester Fire Ins. Go. v. Earle, 33 Mich., 143; Eclectic Life Ins. Go. v. Fahrenkrug, 68 Til., 463; Young v. Hartford Fire Ins.

Heard below before Graves, J. It is not sufficient to show a contract of some kind, and that it has been in whole or in part performed by the complaining party. Baker v. Wiswell, 17 Nebr., 52; Gates v. Gamble, 53 Mich., 181. In this case the contract is not shown to have been performed, even in part. The contract sought to be enforced must be clear, certain and unambiguous in its terms, and must be admitted by the pleadings, or proved with a reasonable degree of certainty.

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

<p>1. Fraudulent Transfer. A failing- debtor transferred bis stock of merchandise in payment of two claims ag-ainst him, of the aggregate amount of $1,821.54. The value of the property was estimated by witnesses at from $2,250 to $2,500, but immediately, after the transfer it was seized by the sheriff, under process, and after advertisement, as upon execution, was sold for $1,-368.83. 'Held, That the disparity, if any, between the value of the property and the consideration of the transfer, was not so great as to justify the inference that the transaction was intended to defraud other creditors of the vendor.</p> <p>2. Seizure Under Tax Warrant: Oppression-. The seizure, upon a tax warrant of $541, of merchandise of the value of from $1,400 to $1,800 or $3,000, or more, is oppressively excessive and void.</p> <p>3. Personal Taxes: Lien: Fight oe Action. The right of action for the enforcement of a lien for personal taxes is vested in the county treasurer, or, in counties under township organization, in the township tax collector alone.</p> <p>4. Action in Name of County. A county in its corporate capacity has no duty to perform with respect to any of the matters mentioned in the preceding paragraph, except, through the county board, to authorize the bringing- of an action by the treasurer or collector. It can not itself begin .or prosecute such an action.</p> <p>5. Exclusive Statutory Remedy. When the statute provides a remedy for the collection of taxes under given circumstances, that remedy is exclusive of all others.</p> <p>1. Wrongful Conversion of Personal Property: Action. One having the legal title and the right .of possession to’ personal property, may maintain an action for its wrongful conversion by a strang-er without joining a party who may have a beneficial interest therein.</p> <p>2.'Record: Rights of Intervener. Record examined, and held that it does not disclose a former adjudication of the rights of the intervener.</p> <p>3. (Stare Decisis. Former judgment in this case, ante, page 141, adhered to.</p>

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

ERROR from tlie district court for Olay county. Judgment for plaintiff the Union State Bank. Tried below before Hastings, J. Defendants bring separate proceedings in error.

<p>Personal Injuries: Compensation: , Future Consequent Damages. In an action for personal injuries compensation can be recovered for only such future damages as are shown with reasonable certainty to be consequent thereon.</p>

Error from tie district court for Johnson county. Tried below before Letton, J. This case has been before this court, and was decided May 22,1901. 61 Nebr., 7B0.

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

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

ERROR from the district court for Dawes county. Action upon several county warrants. Defenses excessive levy and statute of limitations. Trial to court, Hollenbeck, J. Judgment for defendant.

<p>Stare Decisis. Affirmed for the reasons stated in Bacon v. Dawes County, page 191, ante, the facts involved being the same.</p>

<p>Allowance of Claim by Auditor in Part: Accepting Warrant: Waiver. When a claim against the state is allowed in part by the auditor, if the claimant accepts a warrant drawn for the part allowed he thereby waives his right of appeal.</p> <p>Allowing Claim by Auditor in Part: Accepting Warrant: Waiver. Upon motion for rehearing, tlie former opinion is adhered to.</p>

Error from the district court for Johnson county. Action on covenant of warranty. Demurrer to petition. Overruled. Defendant refused to plead further. Tried below before, Stubbs, J. Judgment for plaintiff. It will be apparent that tbe question at issue is the right of a covenantee to sue on a covenant against incumbrances in a deed which does not run to him.

Error from the district court for Hamilton county.. Action by Daniel Albert Scovill and Elizabeth P. Scovill against the Royal Highlanders, a fraternal beneficiary association, upon a benefit certificate issued to Olive Marie Scovill and made payable to her parents, the defendants in error. The nisi-prius judge directed a verdict for the plaintiffs below.

<p>1. Appeal: Amendment op Petition: Pbayer: Jubisdiction. Where an action for the recovery of money is brought in the county court, and taken by appeal to the district court, the petition can not be there amended so as to increase the amount prayed for beyond the jurisdiction of the county court.</p> <p>3. Error: Bill op Exceptions: Pbestjmption: Suppicient Evidence. Error must affirmatively appear, and in the absence of a bill of exceptions, the presumption is that the judgment is sustained by sufficient evidence.</p> <p>3. -: -: -: -: Res Judicata. Where an answer in an equity suit to modify a judgment • pleads former adjudication, and the plaintiff puts such plea in issue by a denial, in the absence of a bill of exceptions, it will be presumed that the action of the trial court in not sustaining the plea is supported by sufficient evidence.</p>

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

<p>Appeal from the district court for Logan county. Action in the nature of a creditors’ bill. Tried below before Grimes, J. Decree for defendants. Plaintiff appeals.</p>

<p>1. Selling1 Intoxicating Liquors: Evidence: Revenue Stamp ok Government License: Circumstance: Explanation. In a prosecution for selling intoxicating liquors in violation of section 11, chapter 50, Compiled Statutes, Nebraska, the fact that the defendant kept in his place of business a United States internal revenue stamp, commonly called a government license, for the sale of intoxicating liquors, may be received in evidence as a circumstance tending to show that defendant was engaged in the business of selling intoxicating liquors, but for no other purpose; and when such evidence is admitted, the defendant ■ should be permitted, if he so offers, to explain his possession of such revenue stamp for any other purpose.</p> <p>3. Criminal Evidence: Detectives: INSTRUCTION. In a criminal prosecution where the state relies on the evidence of detectives employed for the purpose of procuring testimony against the accused, it is reversible error to instruct the- jury that they should give to the testimony of such detectives “the same consideration as to any other testimony in the case, giving it such weight as, considering the nature of the same, their opportunities for knowing the facts of which they testify and their appearance and demeanor upon the witness stand, and all the other elements which go to their credibility, including- their interest and bias, and to give their testimony such weight as under all circumstances the same is, in your judgment, entitled to receive.”</p>

Error from tbe district court for Dawson county. Tried below before Sudlivan, J. Tbe bistory of tbe case appears in tbe opinion. Tbe objection of tbe association to tbe introduction of any evidence, should have been sustained. Morgan v. Bergen, 3 Nebr., 209; McWilliams v. Lawless, 15 Nebr., 131; Wheeler v. Walden, 17 Nebr., 122. Chapter 91b, Compiled Statutes, is unconstitutional: 1. It was never constitutionally passed by both branches of tbe legislature.

ERROR from the district court for Douglas county. Action in trespass for the tearing down a building as a nuisance under municipal ordinance. The facts appear in the opinion. Tried below before Baxter, J. Judgment for defendants. Plaintiff brings error.

Error from tbe district court for Douglas county. Action on tbe official bond of the ex-clerk of tbe district court to recover unclaimed witness fees. Tried below before Baxter, J. Judgment of non-suit below.

<p>1. Affidavit: Notary Public oe Poreign Government or Sister State, An affidavit taken before a notary of a sister state or foreign government, is properly received in support of a motion in tbe courts of this state.</p> <p>2. Consul is Notary Within Meaning of Statute. Section 1750, Revised Statutes of the United States, confers on consular officers the power “to perform any notarial act which any notary public is required or authorized by law to do within the United States.” Held, That such consular officer is a notary public within the meaning- of our statute, and authorized to take and certify affidavits of depositions for use in the courts of the state.</p> <p>3. Review: Defendant Served by Publication: Petition in Error. A defendant served by publication only, who has parted with his interest in the property involved in the action, is not entitled to have the judgment entered therein set aside under the provisions of section 82 of the Code of Civil Procedure,* but this court can review the action of the district court in such case only on petition in error.</p> <p>4. Deed: Easement: Highway: Stbeet Improvements: Reservation. H. and M., being the owners of a large tract .of land, donated a part of the tract to the city of Omaha for park purposes, under the circumstances fully set out in the opinion filed in Oity of Omaha v. Mcgeath, 46 Nebr., 502. A strip eighty feet wide entirely surrounding the park tract was also conveyed to the city, the deed thereto reciting-: “And for the consideration aforesaid we also hereby convey to the said city of Omaha a strip of land eighty (80) feet wide, adjoining and entirely surrounding said park, for the puipose of a public street or highway, and that the said city of Omaha shall lay out and improve said street or highway, and shall forever after keep the same in good order and repair at the expense of the said city, and in case of failure or neglect to comply with any or all of said conditions, then and in that case the title to said street or highway shall revert back and reinvest in 1lie said parties of the first part, their heirs or assigns, according- to their original interests.” Held, That the owners of lots abutting said eighty-foot strip could not be charged with the cost of sidewalks constructed thereon by the city, or with any work properly classed as a street improvement.</p>

ERROR from the district court for Lancaster county. Action in nature of special assumpsit by bailor against bailee for hire. Tried below before Holmes, J. Judgment for plaintiff. Defendant brings error. Plaintiff-below’s testimony discloses negligence on Ms part in losing his key, or in allowing the same to be stolen while in his possession. This negligence was the direct or proximate cause of the loss complained of, and plaintiff could not recover.

<p>1. Intoxicating Liquors: Search Warrant: Jury Trial. A prosecution under tlie provisions of sections 20, 21 and 22, chapter 50, Compiled Statutes, allliough to some extent involving property rights, is not an action for the recovery of money, nor of specific real or personal property, and therefore is not within the provisions of section 280 of the Code of Civil Procedure.</p> <p>2. Bight of Appeal. Section 24 of the Bill of Eights applies exclusively'to civil cases, and in such cases is satisfied if a party has resort to the court of last resort by appeal, error or otherwise. Moisn v. Ptnrell, 40 Nebr., 671.</p> <p>3. Imprisonment for Debt. Section 23 of chapter 50, Compiled Statutes, is not in contravention of the provision of the constitution against imprisonment for debt.</p> <p>4. Information: Demurrer. An information upon which the party charged is to be put upon trial, which, instead of charging an offense in positive terms, merely charges that the county attorney “has reason to believe and does believe” that the acts constituting the offense have been committed by the accused, is vulnerable to a demurrer.</p> <p>5. Intoxicating Liquor: Beer. The courts of this state will take judicial notice that beer is an intoxicant.</p> <p>6. Criminal Pleading: Duplicity: Abatement. Where two offenses are charged in the same count of a complaint filed before an examining magistrate, such duplicity does not render the proceedings before sncli magistrate invalid, nor can it be successfully urged in abatement of an information filed in the district court baséd on such examination.</p> <p>7. Plea in Abatement. Where a party has had a preliminary hearing’, and has been held to answer to the district court, and an information is filed against him in such court, that no warrant has been issued and served on him, based on the offense charg-ed, and that he has never been arrested and brought into court on such charge, is not a good plea in abatement.</p> <p>8. Secondary Evidence: Foundation. It is error to permit a witness, .over a proper objection, to answer a question, where such answer involves secondary evidence of the contents of a written instrument, for the admission of which no foundation has been laid, and the conclusion of the witness as to the nature of such instrument.</p> <p>9. Charge of Court. Charge of court examined, and held to be a fair and accurate exposition of the law applicable to the case.</p>

Eiutoit from the district court for Nemaha county. Joint indictment for receiving stolen horses. Tried below before Jessen, J. Conviction. Defendants bring error.

Original action in tbe nature of quo warranto, to test the right of the respondent to hold the office of clerk of the district court of Valley county.

ERROR from the district court for Otoe county. Indictment for felonious homicide. Tried below before Jessen, J. Plea of not guilty. Trial. Conviction. Sentence twenty years at hard labor. Defendant brings error.

Original action in the nature of quo warranto to annul the corporate existence of the defendant for misuse and abuse of its corporate franchise, the abuse complained of being, as is alleged, the soliciting, selling and executing unlawful contracts for the ostensible purpose of assisting the purchasers thereof in procuring homes. The petition set out a contract.

Original application, on the relation of the hoard of educational lands and funds, for a writ of mandamus against William Stuefer, as state treasurer, commanding him to comply with a certain order of the relator directing the investment of money belonging to the permanent school fund, not exceeding the sum of |300,000, in bonds of the state of Massachusetts, at such rate of interest as will net the said permanent school fund three per cent, per an-num.

ERROR from the district court for Douglas county. Action in equity by trustee of voluntary bankrupt to set aside a fraudulent conveyance. Tried below before Ketsor, J. Decree for plaintiff. Defendant Paxton brings error.

Error from the district court for Douglas county. Action by Ezra 0. Adams, individually and as guardian of Anson Adams, against the Grand Lodge of Ancient Order of United Workmen of Nebraska, upon a benefit certificate. Tried below before Slabaugh, J. Judgment for defendant. Plaintiff brings error.

Error from the district court for Douglas county. Action upon life insurance policy. Tried on agreed statement of facts before Slabaugh, J. Judgment for plaintiff. Defedant brings error. A party relying for recovery on a waiver of a condition precedent in a life insurance policy, must plead and prove such waiver. Livesey v. Omaha, Hotel Co., 5 Nebr., 50; Quick v. Bachsse, 31 Nebr., 312; Phenios Ins.

Error from the district court for Saline co/unty. Re-plevin action before justice court. Verdict and judgment for tbe plaintiff. Appeal to district court. Tried below before Letton, J. Verdict and judgment for plaintiff. Defendants prosecute error to this court.

<p>Error from the district court for Cedar county. Action in the nature of covenant. Tried below before Craves,, J.</p>

Error from the district court for Nuckolls county. Foreclosure of mortgage pro tanto. Tried below before Stubbs, J. Decree for plaintiffs. Defendants bring error.

ERROR from the district court for Lincoln county. Action in assumpsit and for damages for non-delivery of chattels after sale, consolidated with several counts of different forms of trespass. Tried below before Norris, J. Judgment for plaintiff. Defendant brings error.

Error from the district court for Lancaster county. Action in the nature of trespass on the case. Tried below before Frost, J. Judgment for defendant. Plaintiff brings error.

Error from the district court for Douglas county. Action in ejectment. Equitable defense. Tried below be- • fore Jessen, J. Judgment for defendant.

Error from the district court for Lancaster county. Action in the nature of assumpsit for services as an attorney and counselor at law. Tried below before Cornish, J. Verdict and judgment below for defendants. Plaintiff brings error. The vital question was as to misjoinder of parties.

Error from the district court for Clay county. Bill in equity by trustee in bankruptcy, in the nature of a creditor’s bill. Tried below before Stubbs, J. The plaintiff was non-suited below, and brings error.

<p>Appeal from the district court for Otoe county. Foreclosure. Tried below before Jessen, J. Decree for plaintiffs. Defendants appeal.</p>

Action in equity to cancel certain taxes imposed by defendant and to enjoin the imposition of further taxes. Heard below before Sullivan, J. Decree for defendant. Plaintiffs appeal.

Error from the district court for Cedar county. Action against master- and servant for personal trespass. Tried below before Graves, J. Judgment for plaintiff, and defendant Alois Weber, Sr., brings error.

Erroe from the district court for Sarpy county. Dis-allowance of claim by connty board; appeal to district court. Tried below before Baker, J. Rehearing of case reported in 63 Nebr., 813.

Error from the district court for Greeley county. A proceeding under the statute (sections 996, 997 and 998 of the Code, of Civil Procedure) for a trial of the right of property. Tried below before Kendall, J. Judgment for plaintiff below (Scott), and the defendant company' brings error.

ERROR from the district court for Merrick county. Action in the nature of case against defendants for alleged malpractice as physicians and surgeons. Tried below before Grimison, J. Verdict' and judgment for defendants. Plaintiff brings error.

<p>Mutual Accident Association: Hazard: Classification: Limited Recovert. A mutual accident association classified its members according to the hazard of their respective occupations. The plaintiff belonged to a class which entitled its members . to $2,500 for the loss of a hand by accident. The members of another class were entitled to but $500 for such injury. A clause of the by-laws, which were a part of the contract of insurance, provided that no. greater amount should be paid any member than the amount payable to the latter class for any injury received while hunting, or in any way using or handling firearms. The plaintiff lost his hand by the discharge of a gun which he was removing from one room of his house, where it was left by one of his boarders, to another. Held, That his recovery was limited to $500.</p>

<p>1. Verdict: Merger oe Lesser Offense in Greater: Acquittal of One: Conviction oe the Other. Upon the trial of an information charging an offense consisting of • different degrees, the jury may acquit the defendant of the degree charged and convict him of any of the inferior degrees.</p> <p>2. -: Specification of Offense. By section 489 of the Criminal Code the jury are required, in trials for murder, to declare in their verdict whether the accused, if they find him guilty, is guilty ,of murder in the first or second degree, or manslaughter.</p> <p>3.-: Caprice: Rejection of Certain Evidence. The fact that the jury on the trial of an information charging murder in the first degree capriciously, or without sufficient cause, reject the evidence showing deliberation and premeditation, is no reason why their finding of an intentional and malicious lading should be set aside.</p> <p>4. Non-Expert -Witness. A non-expert witness may give his .opinion in regard to a matter which men in general are capable of comprehending-, when, from the nature of the case, it is impossible for him to lay before the jury all the pertinent facts so as to enable them to see the thing he is describing just as he saw it.</p> <p>5. Witness: Identification of Property. It is not reversible error to permit a witness to testify in regard to' the means which he employed to identify property which he had been instructed to seize for the purpose of being used as evidence in a criminal ease.</p> <p>6. Evidence: Hypothesis Implying Guilt: Defendant’s Character. Any evidence tending to sustain.an hypothesis which implies guilt is relevant to the issue in a criminal case and can not be excluded on the ground that it impeaches defendant’s general character.</p> <p>7. -: UNREASONABLE Searoh and Setzure. Evidence showing that a pair Of old shoes, worn by defendant at the time he was arrested, was taken from the jail in his absence and without his consent, does not establish a violation of his constitutional right to be secure against unreasonable searches and seizures.</p> <p>8. Argument of Counsel: Mere Articulation: Limit: Rule. There is no rule of law that limits counsel in debate to mere articulation. He may use any appropriate vehicle of thought to carry his conceptions of truth to the jury.'</p> <p>9. Practice: Evidence: Articles and Documents: Jury Room. The modern practice, both in civil and criminal cases, is to send to the jury room all instruments, articles and documents, except depositions, which have been received in evidence, and which will, in the opinion of the trial judge, aid the jury in their deliberations.</p> <p>tO. Jury: Coercion: Food: Light: Drink: Sleep: Ancient Practice: Verdict. The ancient practice of keeping the jury out while deliberating, without food, drink, fire, light or opportunity for sleep, was never in vogue in this state. The rule is that a verdict can not stand which is the result of any species of coercion.</p> <p>11. -: Verdict: Physical Endurance: Intellectual Conviction: Discretion. The length of time a jury shall be kept tog-ether in consultation is a matter over which the trial court has a larg-e discretionary power, but the verdict must in every case represent intellectual conviction and not mere lack of physical endurance.</p> <p>13. -: -: -: -. The fact that a jury has been kept together an unusually long time without reasonable opportunity for sleep, will not vitiate the verdict if it is shown that the agreement was deliberate and voluntary and not due to fatigue or exhaustion.</p> <p>13. -: Discussion of Irrelevant Matters. The discussion by the jury of irrelevant matters upon which counsel for defendant based an appeal for acquittal, does not constitute misconduct within the meaning of section 490 of the Criminal Code.</p> <p>14. Motion for BTew Trial: Conflicting Evidence. On the hearing of the motion for a new trial in a criminal case the decision of the trial judge upon an issue of fact will be permitted to stand if the evidence upon which it rests is fairly conflicting.</p> <p>15. Evidence. Evidence examined and found sufficient to sustain the verdict.</p>

Error from tbe district court for Kearney county. Action in tbe nature of debt to recover tbe statutory penalty for failure to release a chattel mortgage. Tried below before Adams, J. The plaintiff recovered judgment. The defendant brings error. . When the act is broader than the title, that portion in excess of the title will be declared void; as where the title of the act relates to “all citizens” and the body to “all persons.” Messenger v. State, 25 Nebr., 674.

ORIGINAL application for a writ of mandamus commanding the respondent, as Judge of the Second Judicial Distinct, to dissolve a temporary order of injunction.

<p>1. Foreign Building and Loan Association: Usury. A foreign building and loan association, which reserves a greater rate of interest than $10 per year on tlie hundred in a contract for the loan of money in this state, is not exempt from the penalties of the usury laws.</p> <p>3. -: -. A contract which provides for the payment of 6 per cent, interest, payable monthly, on a loan of $1,500, and also provides for a “premium” of $1,500, to be paid by the borrower by talcing stock in that amount in a foreign corporation which has not complied with our statute regulating building and loan associations, and making monthly payments on said stock of $9 eacn until the same is matured, is usurious.</p>

Confirmation of judicial sale of real estate under decree of foreclosure. Objection that one of the appraisers was not a freeholder. Question tried to the court. Heard below before Sullivan, J. Finding and decree for plaintiff. Defendants appeal.

Errok from the district court for Lancaster county. Action in the nature of trover. Tried below before Holmes, J. Judgment for plaintiffs and defendant brings error.

ERROR from the district court for Douglas county. Action for damages on a contract of sale of stock. Tried below before Baxter, J. Judgment for plaintiff.

ERROR from the district court for Bodge county. Rehearing of case reported in 64 Nebr., 330. Action in the nature of assumpsit, on a benefit certificate. Tried below before Grimison, J. Judgment for plaintiff. Defendant brings error.

Error from the district court for Lancaster county. Action on an insurance policy. Tried below before Holmes, J. Judgment for plaintiff.

Error from the district court for Otoe county. Action in the nature of case, under Lord Campbell’s act, against a county for not properly constructing, repairing and maintaining a bridge. Tried below before Jessen, J. Verdict and judgment for defendant. Plaintiff brings error.

Error from the district court for Saunders county. In the matter of the estate of Daniel Howell, deceased. From an order refusing to discharge Peter Anderson, administrator, he appealed to the district court, and from an order reversing the judgment Sarah M. Howell and others bring error. Tried below before Good, J.

Error from the district court for Dodge county. Action on insurance policies. Tried below before Hollenbeck, J. Yerdict and judgment for plaintiffs.

ErroR from the district court for Phelps county. Action on policy of fire insurance. Msi-prius judge directed a verdict for plaintiff and entered judgment thereon. Tried below before Adams, J.

ERROR from the district court for Thurston county. Rehearing of case reported in 62 Nebr., 303. Action upon a promissory note given for the lease of certain Indian lands allotted under the act of congress of February 8, 1887. Plea that the note was void under the statute and, ergo, there could he no recovery even by an innocent holder. Tried below before Evans, J. Peremptory instruction for. plaintiff and judgment accordingly.

<p>1. Equity Cause: Jury. In equity cases the district court may, in its discretion, submit to a jury any question of fact involved.</p> <p>2.-: -: Findings Advisory: Error Without Prejudice. As the findings of the jury in such case are advisory only, if the court, having heard the testimony, afterwards adopts them as its findings, and there 'is sufficient competent evidence to sustain them, errors in the admission of evidence are without prejudice.</p> <p>3. County Hoad: Damages eor Condemnation: Agreement: Improving Road: Stipulated Sum: Compensation. An agreement duly carried out, that the county shall expend a stipulated sum in improving a road, at the claimant’s request and for his benefit, in lieu of damages, constitutes due compensation for land taken in laying out the road.</p> <p>4.-: -: -: -: --: -: Parol Evidence. Where the record shows that the claim for damages was rejected and at the same time the sum claimed as damages was appropriated to improving the road, parol evidence is admissible to prove an agreement to release the claim in consideration of the appropriation and improvements.</p>

Error from the district court for Boone county. Bill in equity to foreclose a specific lien — a mortgage on real estate. Tried below before Munn, J. Decree for plaintiffs. Defendants bring error.

<p>1. Bankruptcy: Trustee's Right oe Action: Conveyance: Limitation oe Right oe Action. Where a person has been declared a bankrupt under the act of congress approved July 1, 1898, the trustee appointed in that proceeding- may maintain an action to set aside a conveyance made by the bankrupt at any time within two years after the estate has been closed, provided the action was not barred by the laws of this state at the time the petition in bankruptcy was filed.</p> <p>3. Bankrupt Act: Title in Trustee:. Right oe Action. The bankrupt act vests the assignee with title to all property conveyed by the bankrupt in fraud of creditors, and he may proceed to recover the interest of the bankrupt in the property, whether any creditor was in position to attack the transfer or not.</p> <p>3. Fraudulent Conveyance to Wife: Judgment in Personam. Where property has been conveyed to the wife in fraud of the husband’s creditors, it can be pursued and subjected to the payment of his debts; but the pursuit of the property can not be abandoned, and a judgment in personam for its value taken against the wife.</p> <p>4. Evidence. Evidence examined, and held to support a finding by the district court that certain conveyances were fraudulent as to creditors.</p> <p>5. Trustee in Bankruptcy: Rights. A trustee in bankruptcy must, in certain cases, resort to the courts of the state to recover property of the bankrupt fraudulently conveyed. In such oases he is entitled to all remedies and all relief that would be afforded any other, party litigant under the same facts.</p> <p>1. Husband and Wife: Creditors: Fraud: Transfer of Property: Innocent Purchaser: Personal Judgment Against Wife. Where a husband and wife confederate to defraud creditors by transferring' property of the husband to the wife, and such property is sold to an innocent third party, so that it can not be reached by the creditors of the husband, a personal judgment may be entered against the wife for the proceeds of such sale, provided it appears, or is fairly to be presumed, that she still retains such proceeds or her separate estate has had the benefit ■ thereof.</p> <p>3. Receiver: Appointment: Erroneous Order. Where an order appointing a receiver is erroneously. made, but is not reviewed until the main case in which the receiver was appointed has been heard on appeal in this court, and on such appeal it is determined that the party applying for the receiver is entitled ,’to the rents and profits .pf which the receiver took possession, the order will not be reversed or set aside, as such action could not benefit either party to the action and would probably result in further litigation and costs.</p>

Error from the district court for Sarpy county. Tried below before Scott, J. Rehearing of case reported in 62 Nebr., 358. Stepping between moving cars to uncouple them, is not negligence as a matter of law; and the question of fact is for the jury. Belair v. Chicago & N. W. B. Go., 43 la., 662. Every railroad in this state is blocked — not a single exception. The Union Pacific, the Burlington, the Great.

Proceedings in eqnity to perpetually enjoin the defendants from interfering with, the removal of a dead body from Mount Calvary Cemetery. Heard below before Coknish, J. Judgment for defendants, and plaintiffs appeal.

ERROR from the district court for Dawson county. Action upon a certificate of membership and policy of insurance. Tried below before Sullivan/J. Judgment for plaintiff. Defendant brings error.

<p>Appeal from the. district court for Howard county. Injunction to restrain collection of taxes. - Heard below before Thompson, J.</p>

<p>Appeal from the district court for Jefferson county. Injunction to prevent the levy of a special tax. Heard below before Baker, J.</p>

'Appeal from the district court for Cass county. Bill for divorce by Harriett M. Eaton against Eli Eaton. Heard below before Jessen, J. Decree for defendant. Plaintiff appeals. In Tennessee, under a statute wbicb prevented a defendant in a divorce suit, wbo bad been guilty of adultery, from marrying bis or ber particeps criminis during the life of the first spouse, the second wife was barred from homestead. Owen v. Bracket, 7 Lea, 448.

Action to foreclose a tax lien by the county as party plaintiff. The question involved in this case, can a county enforce its own tax lien without complying with prerequisites in case of a private purchase, that is to say, without having first obtained a sale certificate? was raised by a general demurrer to plaintiff’s petition. Heard below before Crimes, J. Demurrer overruled. Defendants elécted to stand on their demurrer. Decree for plaintiff. Defendants appeal.

Rehearing of case reported in 62 Nebr., 805. Bill in equity to set aside fraudulent conveyances. Heard below before Albert, J. Decree for defendants below. Plaintiff appeals.

Error from the district court for Gage county. Action in ejectment. Tried below before Letton, J. Judgment for defendant. Plaintiff brings error.

Error from the district court for Dawson county. Action in the nature of assumpsit on one promissory note. Tried below before Sullivan, J. Yerdict and judgment for plaintiff. Defendant brings error.

ERROR from tbe district court for Frontier county. Action in tbe nature of case, for malicious prosecution. Defense, advice of counsel. Tried below before Norris, J. Verdict and judgment for $30.

Error from the district court for Madison county. Action in ejectment involving title. Tried below before Cones, J. Judgment for defendants. Plaintiff brings error. Tyler and Moyer: The burden of proving adverse possession rests upon the party alleging it. The' doctrine of adverse possession is to be construed strictly, and such possession can not be made out by inference, but only by clear and positive proof.

ERROR from tlie district court for Lancaster county. Action in the nature of assumpsit on one promissory note. Tried below before Frost,, J. Judgment for defendant. Plaintiff brings error.

ERROR from the district court for Douglas county. Action by an administratrix upon a bond. Tried below before Dickinson; J. Judgment for sureties.

Action to enforce the specific performance of a contract for the sale of real estate. Heard below before Fawcett, J. Decree for plaintiff. Defendants appeal.

Proceeding in the nature of a creditors’ bill to set aside a deed of real estate. Heard below’ before Adams, J. Decree for defendants. Plaintiff appeals.

Error from the district court for Douglas county. In the nature of action on the case, against a municipal corporation for personal injuries. Tried below before Keysor, J. Verdict for plaintiff in the sum of $1,500. Judgment on verdict. Defendant brings error.

Error from the district court for Douglas county. This was a proceeding in the nature of case, against a municipal corporation, for personal injuries. Tried below before Baxter,. J. Verdict for plaintiff in the sum of $1,000. Judgment on the verdict. Defendant brings error.

ERROR from the district court for Nuckolls county. Foreclosure of tax lien. Tried below before Stubbs, J. The ultimate facts appear in the opinion.

Error from the district court for- Kearney county. Action in the nature of trover. Tried below before Adams, J. Verdict for plaintiff in the sum of fl. Judgment on verdict. Defendant brings error.

<p>Line of Survey: Demote Corners: Variant Length: Presumption. Wliere, on a line of the same survey and between remote corners, tlie whole length of which is found to be variant from the length called for, it is not to be presumed that the variance was caused from a defective survey of any part, but it must be presumed, in the absence of circumstances showing the contrary, that it arose from imperfect measurement of the whole line, and such variance must be distributed between the several subdivisions of the line in proportion to their respective lenghts.</p>

ERROR from the district court for Dixon, county. Action for statutory damages under liquor license. Tried below before Graves, J. Verdict for plaintiff in the sum of $500. Judgment on verdict.

Error from the district court for Douglas county. Action for breach of contract for goods sold and not delivered. Tried below before Slabaugh, J. Verdict for plaintiff in the sum of $1,000. Judgment on tbe ver- ' diet. Defendant brings error.

<p>ERROR from the district court for Gage county. Action for alleged contributory liability for cost of the construction and repair of a bridge. Before Stull, J. Trial to the court. Judgment for defendant.</p>

<p>ERROR from the district court for Douglas county. Action in the nature of indebitatus assumpsit for services as attorneys at law. Tried below before Baxter, J. Verdict for defendants. Judgment on verdict.</p>

Eriior from tbe district court for Douglas county. Action for conversion of public funds by a depositary bank. Tried below before Baker, J. Judgment for defendants. Under the constitution of 1867, a large floating debt had accumulated against the state.