Volume 68 — Nebraska Reports

<p>1. Pleading: Condition Precedent. In pleading performance of conditions precedent under section 128, Code of Civil Procedure, a plaintiff may properly assume that conditions which have been waived will not be relied upon, and allegations of waiver to meet a defense based on such conditions are not inconsistent with the statutory allegation that all conditions on his part have been duly performed.</p> <p>2.-: —-. A plaintiff does not change his cause of action by substituting allegations of waiver for a general denial with respect to a defense of breach of conditions precedent.</p> <p>3. Policy of Insurance: Waiver of Conditions: Construction. Former decisions of this court as to waiver of conditions in policies of insurance and the construction of such conditions adhered to.</p> <p>4. Provisions of Policy: Risk: Waiver of Provision: Payment of Premium. Provisions in a policy of insurance that the risk shall not attach unless the premium has been actually paid, are waived in case the policy is delivered upon an agreement to extend credit, and the insurer does not take advantage of said provisions, but treats the policy as in force.</p> <p>5. Receiving Premium After Total Destruction: Waiver. Receiving the premium after destruction of all the insured property, so that nothing remains to which insurance might attach, waives ’ a provision that the insurer shall not be liable for a loss occurring before payment of the premium.</p> <p>6. -: Repudiation of Act of Agent: Retuen to Agent with In- . steuctions : Tendee. Where an agent Who has general power to receive and collect premiums accepts a premium after loss and the insurer desires to repudiate such act, it should return or tender the money to the insured; mere return to the agent with instructions which are not executed will not suffice.</p> <p>7. Misconduct of Counsel: Conflicting Evidence: Decision of Couet. The -decision of the trial court upon conflicting evidence as to misconduct of counsel will not be disturbed.</p> <p>8. Instruction. While not to be commended, an instruction directing the jury to “do substantial justice” between the parties, is not prejudicial error where they are told to do so by finding a verdict “solely from the evidence in the case, applying the law as given in these instructions.”</p>

<p>1. Husband: Wife: Transfer: Burden of Proof. The burden of proof is upon the husband or those claiming under him to show that a gratuitous transfer to him from his wife was made freely and deliberately, .and that the transaction was fair and proper.</p> <p>2. Administrator’s Sale: Executory Contract: Real Estate. Under our probate system an administrator can not sell the interest of the estate in an executory contract for the purchase of lands except as real estate, and after a license obtained from the court therefor.</p> <p>3. Husband: Wife: Adverse Possession. The husband, while living with his wife, can not gain title to her land by adverse possession.</p> <p>4. Deed: Duress: Limitation. A deed for the conveyance of land, if obtained by duress, may be avoided by the entry of the grantor or his heirs within the statutory period of limitation.</p>

<p>1. Petition for Alienation of Husband’s Affections. Petition for alienating tbe affections of a husband examined, and held sufficient.</p> <p>2. Judgment Record as Evidence. A judgment record can not be used in favor of a stranger 'to establish facts recited in the judgment unless such finding is based on an admission made by the party against whom it is sought to be used.-</p>

<p>1. Party: Witness: Cross-Examination: Contradictory State-' ment. When a party to the suit testifies as a-witness, it is competent to ask him on cross-examination if he has not on a specified previous occasion made a particular contradictory statement or admission against his own interest. '</p> <p>2. Witness: Impeachment. It is competent as preliminary to impeachment to ask a witness, on cross-examination; if he has not on a previous trial of the same case made a particular statement as a witness contradictory to his present testimony.</p>

<p>Rehearing of case reported in 62 Neb. 832.</p> <p>Error to the district court for Saunders county: Samuel H. Sedgwick, District Judge.</p>

<p>1. Appeal: Transcript: Waiver. Although, the .filing of a duly authenticated transcript is required in order to perfect an appeal from the county court to the district court, and although the transcript filed for such purpose is not thus' authenticated, yet, if the parties proceed in the district court on the theory that the appeal has been perfected, they will not be heard to question the sufficiency of such transcript in this court.</p> <p>2. Appeal: Issues. Where, in an appeal from the judgment of the county court, in a term case, the petition filed in the district court is assailed on’the ground that it tenders other and different issues than those tendered .in the court below, the question of fact, raised by such motion, is determinable solely by a comparison of the petition filed in the district court with that upon, which the cause was submitted to the county court.</p> <p>3. ———: —-. The rule requiring cases on appeal to be tried on the same issues as those upon which they were tried in the court below, does not require that the petition filed in the appellate court be in the precise language of that filed in the lower court, but is satisfied if- the ultimate facts relied upon for a recovery are substantially the same, and provable by evidence of the same character.</p> <p>4. Petition. Petition filed in the county court examined, and held to state a cause of action.</p>

<p>1. Dismissal After Submission. A plaintiff can not dismiss his action without prejudice, after there has been a final submission of it either to the court or jury.</p> <p>2. Demurrer to Evidence: Elimination on Jury. A jury impaneled to try issues of fact is practically eliminated by a decision sustaining a demurrer to evidence. Such a decision is essentially a denial of the litigant’s claim that he is entitled to a jury trial.</p> <p>3.-> — : Direction, Reception and Recordino on Verdict Ceremonial Acts. When a court has sustained a demurrer to evidence, the direction, reception and recording of a verdict are mere ceremonial acts. The verdict in such a case has no legal significance; it does not furnish the basis of the judgment nor serve any other useful purpose.</p> <p>4. “Submission of a Case to a Jury.” The “submission of a case to a jury,” contemplated by section 430, Code of Civil Procedure, is the submission of an issue of fact which the jury is at liberty to decide in favor of either party.</p> <p>5. Demurrer to Evidence: Submission: Dismissal. When a case has been submitted upon a demurrer to the evidence, plaintiff’s absolute right to dismiss without prejudice is lost.</p> <p>6. Dismissal After Submission in Discretion of Court. The district court may, in the just exercise of its discretionary power, permit plaintiff to dismiss his case after it has been finally submitted to the court or jury.</p> <p>7. Where Dismissal After Submission Is Made as Demandable Right. ' But where the discretionary power of the court is not invoked and tbe application to dismiss after final submission is made and allowed as a demandable right, tbe order of dismissal will not be upheld unless a denial of tbe application would amount to an abuse of discretion.</p>

<p>1. Libel: Slander: Truth: Complete Defense Per Se., Section 132, Code of Civil Procedure, in effect declares that in an action for a libel or slander the truth of the defamatory matter is per se a complete defense.</p> <p>2. Section Constitutional. Said section, so far at least- as it relates to spoken defamation, is in harmony with the constitution and is valid.</p> <p>3. Action for Slander: Plea in Justification. In an action for slander, a plea of justification is good, without alleging that the defamatory words were spoken with good motives of for justifiable ends.</p> <p>4. Evidence. Evidence examined, and found sufficient to sustain the verdict.</p> <p>5. Loss of Written Instrument: Secondary Evidence. "When the loss or destruction of a written instrument is shown, secondary •evidence of its contents is admissible.</p>

<p>Appeal from the district court for Lancaster county: Albert J. Cornish, District Judge.</p>

<p>Error to the district court for Douglas county: William W. Xeysor, District Judge.</p>

<p>1. Check: Payee: Right of. Action: Drawee: Funds. The payee of a check has a right of action against the drawee if the latter has funds to meet it when it is presented.</p> <p>2. Evidence: Agreement: Honor of Checks. Evidence held, sufficient to sustain a finding that there was an agreement by the bank to honor checks to be given in payment for a car-load of horses by the drawers.'</p> <p>3.-: -: -. Liability of Bank. An agreement to honor - checks for a car-load of horses, the drawee bank to be secured by a draft and bill of lading on their shipment, held valid, and the bank liable for the payment of the checks, it having sufficient funds for such purpose derived from the draft.</p> <p>4. Objection: Other Liability. It is no objection to such an agreement that the drawers were already indebted to the bank on other transactions.</p>

<p>Error to tlie district court for Merrick county: James A. Geimison, District Judge.</p>

<p>Error to the district court for Burt county: Charles T. Dickinson, District Judge.</p>

<p>1. Injunction: Garnishment: Wages: Exemption: Multiplicity of Suits. A suit in equity may be maintained to enjoin a judgment - creditor from prosecuting a multiplicity of proceedings in garnishment to subject the wages of laborers, mechanics and clerks, which are absolutely exempt by law from attachment, execution, and garnishee process, to the payment of his judgment.</p> <p>2. Employer: Necessary Party. The employer from whom such wages are due and who has been served with garnishee process is a proper and necessary party to such suit, in order to authorize the court to make a decree which will afford plaintiff suitable, adequate and complete relief.</p> <p>3.-: -: Summons to Another County: Jurisdiction. Where the employer is thus made a party and the suit has been properly brought against him in any county, and service of summons therein has been made on him, a summons issued to the sheriff of another county, where the judgment creditor resides, which is properly served on him, gives the court jurisdiction of all the parties to the action, and full power to grant the proper relief therein.</p> <p>4. Defendant: • Substantial Interest. In such cases it must appear that the defendant served in the county where the suit is brought has a substantial interest in the legal questions involved, and the relief prayed for in the action, and that he is a real and not a sham defendant. Miller v. Meeker, 54 Neb. 452, and Stewart v. Rosengren, 66 Neb. 445, distinguished and approved.</p>

<p>1. Principal and Agent: Substitute. If a principal constitutes an agent to do a business which obviously and from its very nature can not be done by the agent otherwise than through a substitute, or if there exists in relation to the business a known established usage of substitution, in either case the principal would be held to have expected and authorized such substitution.</p> <p>2. Evidence: Judgment. Evidence examined, and held sufficient to sustain the judgment of the district court.</p>

<p>Appeal from the district court for Pawnee county: John Stull, District Judge.</p>

<p>1. Written Contract: Extrinsic Evidence. Where a written contract requires extrinsic evidence to explain its terms, the interpretation to he given in view of such evidence is a question of fact.</p> <p>2. Bight to Vote Pledged Shares of Stock. As a general rule, the right to vote pledged shares of stock remains in the pledgor until foreclosure.</p> <p>3. Corporation: Registered Stockholders: Election: Books of Corporation. The officers of the corporation, in conducting an election, will not look behind the books of the corporation which show who are registered as stockholders; but a court of equity-may do so, and may enjoin a pledgee from voting the shares pledged in prejudice of the rights Of the pledgor.</p> <p>4. Excessive Issue of Stock: No Consideration: Injunction: Cancelation. A stockholder may maintain a suit to enjoin the holder of shares issued in excess of the amount authorized by the articles of incorporation, and without consideration, from voting such shares in prejudice of his rights, and to procure cancelation thereof.</p> <p>5. Estoppel. Whatever might be the rule as to a bona fide purchaser of or subscriber for such an overissue of shares, one who procures the overissue without consideration, by false representations, will not be heard to assert that a stockholder who voted therefor, relying on such representations, is estopped to question the validity of the shares.</p> <p>6. Private Corporation: Stockholder: Officers: Validity of Election: Equity. It seems that in this state a stockholder may maintain a suit in equity to try the validity of an election of officers and directors of a private corporation, and determine whether persons claiming to be such are entitled to act in that capacity.</p> <p>7. Validity of Election: Jurisdiction of Court. In any event the court may inquire into the validity of the election and pass upon the title to corporate officers when necessary to do complete justice in a suit of which it has jurisdiction on other grounds.</p> <p>8.-: Majority of Shares. Where a corporation has a fixed capital stock, divided into a definite number of shares, a majority of all the shares is necessary to a valid election in the absence of some rule to the contrary.</p> <p>9. Voting Shares. It is not necessary that a stockholder shall have paid for his stock in full to enable him to vote all his shares at an election.</p> <p>1. Corporation: Stockholders: Acts of Minority. Whether less than, a majority of the shares of stock in a corporation having a fixed capital stock, divided into a definite number of shares, may hold a valid meeting and bind the corporation, in the absence of any rule upon the subject, left undecided.</p> <p>2. Minority of Shares: Special Meeting: Election of Officers. Whatever may be the rule in case of stated meetings, or those regularly called or convened, a minority of the shares, after failure of the stated meeting for election of officers, can not call a new meeting on their own authority and hold a valid election.</p>

<p>1. Equitable Belief: Probate Court: Rules of Pleading. Applications for equitable relief on the probate side of the county court in matters within the exclusive jurisdiction of that court, are to be deemed suits in eq’ ity, and are governed by the general rules of pleading applicable to such suits in the district court.</p> <p>2. -: Petition: Striking from Files. It is not proper practice to strike from the files a duly verified petition by an heir at law of the testator seeking equitable relief against an order admitting a will to probate. Such a petition should be met by demurrer or answer.</p> <p>3. Petition: Order to Strike: Error. If the petition states a cause of action on its face, an order striking it from the.files is not to be held error without prejudice because such petition is obnoxious to motion with respect to form, and the record in the prohate proceedings discloses fasts at variance with some of its allegations.</p>

<p>1. Answer:. Mistake in Name: Testimony. The testimony of an attorney who prepared an answer is competent to show that by inadvertence and mistake he used the name of one 'party to the action while intending to name another party.</p> <p>2. Foreclosure: Deficiency: Creditor’s Bill: Evidence. On the foreclosure of a mortgage a deficiency judgment was entered against R. and G., the mortgagors. The judgment creditor thereafter brought an action to subject a farm conveyed by R. to his son to the payment of this judgment. The conveyance was made some two years prior to the entry of the deficiency judgment. Prior to the foreclosure proceedings R. had conveyed to G. his interest in the mortgaged premises, and G. had ’assumed and agreed to pay the mortgage. R. testified that he had no knowledge of the foreclosure proceedings and offered to show that at the time he made the conveyance to his son he understood that G. was alone liable for the mortgage debt. Held, That R.’s understanding was immaterial and incompetent, but that it would be competent and material to show that a solvent and responsible party had assumed the mortgage debt on which the deficiency judgment was entered, as hearing on the question of the character of the conveyance by R. to his son, and whether fraudulent or not, but that the offer did not go far enough, in not proposing to show that G. was solvent and able to meet any deficiency that might arise after exhausting the mortgage security.</p> <p>1. Death of Defendant in Error After Judgment Below: Voluntary Appearance by His Attorneys: Jurisdiction of this Court. Seeley obtained a judgment in the district court, and after his death a petition in error making Seeley the sole party defendant , was filed in this court, and attorneys of this court who were attorneys of record for Seeley in the district court, filed with said petition in error a written statement, signed by them, as attorneys for Seeley, purporting to waive the issuing of summons in error and to enter the voluntary appearance of Seeley in this court. Held, That this court acquired no jurisdiction.</p> <p>2. Void Judgment. A formal judgment entered in this court upon such attempted voluntary appearance is void, and will be so declared, when, at the same term at which the judgment was entered, the facts are brought to the knowledge of the court.</p>

<p>Error to tbe district court for Thayer county: George W. Stubbs, District Judges.</p>

<p>Attachment: Dissolution: Several Causes of Action: Dismissal of Part. Where a writ of attachment issues for the whole amount claimed in several causes of action included in the same petition, and afterward, and before trial, some of such causes of action are dismissed by the plaintiff, a motion to dissolve the attachment, based on such dismissal, should be sustained.</p>

<p>1. Fraud: Limitation of Action. An action for relief, on the ground of fraud, is barred in four years from the date of the discovery of such facts as would put a person of ordinary intelligence and prudence on inquiry, which, if pursued, would lead to such discovery.</p> <p>2. Administrator’s Sale: Setting Aside. . Where an administrator becomes the purchaser at his own sale of the lands of his intestate, and applies the proceeds in payment of the debts of the estate, in an action by the heirs to set aside such sale they are not required to offer to reimburse him for the purchase price, where it appears that the rents and profits in his hands, accruing since the sale, exceed the amount of his disbursements on the venture.</p>

<p>Error: Record: Presumption. Where it is claimed that the court erred in permitting a pleading to be amended during trial, the alleged fact must be shown by the record; its existence will not be" presumed.</p>

<p>Error to the district court for Colfax county: Conrad Hollenbeck, District Judge.</p>

<p>Error to the district court for Box Butte county: William H. Westover, District Judge.</p>

<p>Error to the district court for Sheridan county: James J. Harrington, District Judge. Indictment for burglary. Plea of guilty. Sentence to one year at bard labor in the penitentiary.</p>

<p>Error to the district court for Cedar county: Guv T. Graves, District Judge.</p>

<p>Error to the district court for Butler county: Samuel H. Sornborger, Distriot Judge.</p>

<p>Error to. the district court for Lancaster county: Edward P. Holmes, District Judge.</p>

<p>1. Receivership: Ancillary Remedy. A receivership is a purely ancillary remedy and can not be maintained in a proceeding instituted solely for that purpose.</p> <p>2. Receiver: Corporate Property: Jurisdiction. Unless expressly authorized by statute, a court has no jurisdiction to appoint a receiver of corporate property upon grounds which would not be sufficient were the owner a natural person.</p> <p>3. -: Mortgagee. A receiver can not be appointed at the instance of a mere mortgagee for property not covered by the mortgage.</p> <p>4. -: Jurisdiction: Notice. Jurisdiction to appoint a receiver of corporate property, can not be conferred’by the mere consent of the corporation where neither equitable nor statutory grounds exist and where other parties whose rights are affected have not been notified; nor is a stockholder concluded by such an order.</p> <p>1. Petition: No Cause of Action: Appellate Court. The question of whether a petition states a cause of action or discloses grounds sufficient for the granting of equitable relief, may he raised at any stage of the proceedings in the appellate court, up to and including the filing of a motion for a rehearing.</p> <p>2. Prayer for General Equitable Relief. A prayer for general equitable relief, coupled with that of one for specific relief, can not be extended so as to warrant the granting of relief not embraced within and comprehended by the allegations of fact contained in the pleading.</p> <p>3. Appointment of a Receiver: Is Ancillary Remedy. The appointment of a receiver in an equitable action is ordinarily an ancillary remedy, provisional in character, and incidental to the main object or purpose of the suit.</p> <p>,jb.Jurisdiction to Appoint a Receiver. Save in certain classes of suits 'in equity which constitute weill-reeognized exceptions, the jurisdiction of courts of equity does not warrant the appointment of a receiver to take charge of and administer the property and business of a corporation in an independent action, where that is the main object and purpose of the suit and the sole and only relief asked for.</p> <p>5. Defective Petition. Petition in the case at bar examined, construed, and held .defective in substance, and insufficient to support the orders of the court appointing a receiver to take charge of and sequestrate 'the property and business of the defendant corporation, directing a sale thereof, and the confirmation of the sale made under such orders.</p> <p>6. Jurisdiction of Equity Courts Over Corporation. In the absence of statutory authority, courts of equity do not possess jurisdiction over corporate bodies to the extent of," on the application of private parties, appointing a receiver, sequestrating the property and business and selling the same through the instrumentality of such receiver, and thereby wind u£ the affairs and terminate the business and indirectly dissolve the corporation.</p> <p>7. Stare Decisis. The former judgment of reversal in Vila v. Grand Island Electric Eighty Ice & Gold Storage Go., ante, 222, adhered to.</p>

<p>1. Sheriff’s Deed: Homestead: Execution Sale: Judgment Against Husband. A sheriff’s deed made in pursuance of a sale of a debtor’s homestead, which at the time of the levy is occupied as such by the debtor and his family, the judgment running against the husband individually, will not devest the debtor of his title to the homestead, nor invest the purchaser with any title thereto.</p> <p>2. Homestead: Levy: Sale: Waiver. A homestead was levied upon and sold by the sheriff on an ordinary execution. After confirmation of the sale and application of the proceeds to the payment of the judgment and costs, a surplus amounting to the sum of $2,449.08 remained in the hands of the sheriff. The wife had not been a party to the proceedings, but subsequently, by applica- • tion to the court, obtained an order for the payment of the surplus to her. The sheriff, acting in pursuance of this order, required that the husband join with the wife in signing the receipt for the money. Held, That a waiver of the homestead right by the husband could not be predicated solely upon the fact that he signed the receipt. Whether in any event a homestead right can be waived, gumre.</p>

<p>Error to the district court for Buffalo county: Homer M. Sullivan, District Judge.</p>

<p>Error to the district court for Lincoln county: Hanson M. Grimes, District Judge.</p>

<p>1. Request for Instruction: Assumption: Refusal. Where an instruction was requested that assumed the existence of a judgment unreversed and unmodified as a bar to a defense of adverse possession, and the evidence disclosed that such judgment had been annulled by a decree enjoining its enforcement and declaring it of no force and effect, such instruction was properly refused.</p> <p>2. Several Defendants: Instruction Applicable to One: Refusal. In an action where there are several defendants all defending on distinct and different grounds, an instruction in general terms which can apply to the defense made by only one of them, should be refused.</p> <p>3. Instruction: Not Applicable. The instruction tendered should have been specific in its terms, and limited in its application to the one defendant.</p> <p>4. Estoppel: Silence. Where one man knowingly, though he does it passively, by looking on, suffers another to purchase and expend money on land under an erroneous opinio'n of title, without m ' ing known his own claim, he will not afterwards be permitted to exercise his legal right against such person. A willful design to mislead and deceive is not necessary in such a case. Gillespie v. Sawyer, 15 Neb. 536, approved and followed.</p> <p>5.-: Intention. Whatever a man’s real intention may be, if he so conducts himself that a reasonable man would take the act or representation ^ to be true, and believe that it was made to be acted on, and he did act upon it as true, the party making the representations will be precluded from contesting their truth. .</p> <p>6. -: -. An estoppel may be binding and effectual, even though there was no intention to deceivdf and it is not necessary for the holder of an adverse interest to deny his interest, or • expressly declare his intention to abandon it.</p> <p>7. Evidence. Evidence objected to examined, and held to have been properly admitted.</p> <p>8. Verdict: Several Defendants: Joint Motion for New Trial. Where a verdict is returned against a plaintiff and in favor of several defendants, on different, distinct and separate defenses pleaded separately by them, a single joint motion for a new trial against them all is insufficient, and it should be overruled if the verdict is good as to any one of the defendants.</p> <p>9. Motion for New Trial: Examination of Record.- Where a motion for a new trial is overruled under such circumstances, this court is only required to examine the record far enough to ascertain that fact.</p>

<p>1. Revival of Policy: Statement by ti-ie Assured: Not a Warranty. A statement, signed at the request of the agent of a life-insurance company by the assured, to obtain a revival of his policy, where, by its terms, it should have been signed by the beneficiary, and in which the assured states that he -is in good health and that there is nothing in his habits or condition which is likely to impair his health or shorten his life, is a representation and not a warranty.</p> <p>2. Defense: False Representations: Proof. In order to defeat a recovery in such a case the company must prove that the representations are untrue, and were made by the assured knowingly with the fraudulent intent to mislead and deceive; that they were material to the risk, and were relied on by the defendant.</p> <p>3. Verdict: Theory of the Case. Where the insurance company treats the statement as a representation, pleads its falsity, alleges that the false statement was knowingly and intentionally made in order to deceive, and cause it to revive the policy, which it otherwise would not have done, and 'the cause is tried and the jury properly instructed on that issue, a verdict against the company will not be set aside if there is competent evidence to sustain it.</p> <p>4. Instructions. Instructions tendered by the defendant examined, and held to have been properly refused.</p> <p>5. Case Distinguished. The case of Royal Neighbors of America v. Wallace, 66 Neb. 543, examined and distinguished.</p>

<p>1. Principal: Agent: Estopped. Where a principal has by his voluntary act placed an agent in such a situation that a person of ordinary prudence conversant with business usages and the nature of the particular business is justified in presuming that such agent has authority to perform a particular act, and therefore deals with the agent, the principal is estopped, as against such third person, from denying the agent’s authority. Holt v. Schneider, 57 Neb. 523, followed.</p> <p>2. -: -: Authority Inferred. Ostensible authority- to act as agent may be inferred if the party to be charged as principal affirmatively, or intentionally, or by lack of ordinary care, causes or allows third persons to trust and act upon such apparent agency. Thomson v. Shelton, 49 Neb. 644, and Phoenix Ins. Go. v. Walter, 51 Neb. 182, followed.</p> <p>3. Evidence: Decree. Evidence examined, and held in part to support the decree.</p> <p>1. Appeal: Conflicting Evidence: Review of Finding. In passing on •> findings of fact upon appeal, the reviewing court should go over all the evidence and reach its own conclusion thereon, giving such weight to the determination of the trial court as to credibility of witnesses and its finding on conflicting evidence as, under all the circumstances of the case, the nature of the evidence before the trial court, and that court’s special opportunities, if any, for reaching a correct solution, such finding may be entitled to.</p> <p>2. Review of Finding Based on Oral Evidence. In ordinary cases, where the evidence is entirely oral, and the trial court may be presumed to have had a general local knowledge of the parties, the witnesses and the subjects of controversy, the finding of the trial court is often entitled to almost decisive weight.</p> <p>3. Finding: Conflicting Obal Evidence. A finding on conflicting evidence in such cases will be adhered to unless clearly wrong; but, ■ if clearly wrong, it will be set aside, notwithstanding there may be some competent evidence in support thereof. Seymour v. Street, 5 Neb. 85, approved.</p> <p>4. Dicta in Prior Opinions Explained and Qualified. Dicta in prior opinions of this court with respect to review of findings of fact explained and qualified.</p> <p>5. Dicta Disapproved. The statements that the reviewing court will not “weigh conflicting evidence,” that it “will not review findings on conflicting evidence,” and that “findings on conflicting evidence are conclusive,” as announced obiter in several prior decisions, disapproved.</p> <p>6. Review of Finding Based on Written Testimony. Where a finding is based largely upon depositions or written testimony, as to which the trial judge has no special advantage over the reviewing court, the rule that his findings will be adhered to unless clearly wrong does not apply with the same force.</p> <p>7. Application of Rule: Findings Adhered to Unless Cleably Wbong. But in such case, if the oral testimony is evidently the basis of the finding, or the written testimony relates to matters as to which the trial judge is better able to reach a satisfactory conclusion than the reviewing court, the rule may be applied. Male v. Bahlgrin, 66 Neb. 524; Waldron v. First Nat. Bank of Greenwood, 60 Neb. 245.</p> <p>8. Rule in Case of Written Evidence. If the evidence before the trial court is entirely written and relates to matters as to which the trial judge is in no better position to reach a correct solution than this court, the rule has no application, and this court should be governed by its own conclusion as to the weight of the evidence.</p> <p>9. Appeal: Finding Set Aside: Remanding Cause. In furtherance of justice, where a finding is set aside on appeal and the former trial was unsatisfactory, instead of entering or directing a new decree, this court will remand the cause for further proceedings.</p>

<p>Error to the district court for Fillmore county: George W. Stubbs, District Judge.</p>

<p>Error to the district court for Johnson county: Charles B. Letton, District Judge.</p>

<p>Error to the district court for Madison county: James F. Boyd, District Judge.</p>

<p>Error to the district court for Cuming county: Guy T. Graves, District Judge.</p>

<p>Roads: Vacation: Construction or Statute. The proviso in section 3, chapter 78, Compiled Statutes (Annotated Statutes, 6006), “that all roads that have not been used within five years shall be deemed vacated,” was intended to apply exclusively to roads that had not been used within five years before the enactment of such section.</p>

<p>Error to the district court for Douglas county: Irving F. Baxter, District Judge.</p>

<p>Error to the district court for Thurston county: Guy T. Graves, District Judge.</p>

<p>Error to tlie district court for Douglas county: Willard W. Slabaugh, District Judge.</p>

<p>1. County Court: Jurisdiction. The county court has exclusive original jurisdiction of all probate matters, and where the relief sought by an action is such as the county court, in the exercise of its probate jurisdiction, might grant, the district court has no original jurisdiction.</p> <p>2. District Court: Will: Construction: Jurisdiction. On the facts stated, held, that the district court was without jurisdiction to construe a will and order distribution.</p>

<p>1. Libel: Publication Libelous Per Se. Any false and malicious writing published of another is libelous per se, when its tendency is to render him contemptible or ridiculous in public estimation, or expose him to public hatred or contempt, or deprive him of the companionship of respectable people.</p> <p>2. -: Civil Liability. The proprietor of a newspaper is civilly liable for a libelous article published therein, although such article be published without his knowledge.</p> <p>3. Pleading: Innuendo. The office of an innuendo in pleading is to point out. the meaning of- words which are vague or indefinite in meaning or application; but where the words have definite and certain meaning and application, and thus taken are libelous, explanatory words or phrases, or innuendoes are not required.</p> <p>4. Damages: Evidence in Mitigation. In an action for libel in this state, the recovery is limited to compensatory damages, and the defendant is not permitted to show, in mitigation thereof, that the publication was without his knowledge.</p> <p>5. -: Evidence of. Where the publication is libelous per se, the plaintiff is not required to introduce evidence of actual damage to entitle him to substantial damages.</p> <p>6. Tender of Proof. No formal offer to prove is required, to obtain a review of a ruling of the trial court excluding the answer of a witness to a question, where the question itself clearly indicates what the party expected to prove by the witness.</p> <p>1. Assignment of Error Too General. An assignment that “the court erred in excluding from the testimony proof as to the truth of the article and the charges made therein,” is too general and indefinite to be entitled to consideration -where a portion „ of the testimony offered upon the subjects mentioned was rightly excluded.</p> <p>2. Pleading: Inconsistency: Exclusion of Evidence. The answer in an action for libel alleged, among other things, that the article complained of was not published of or concerning the plaintilf, and that it was true. Held,, That these allegations must be construed so as to be consistent, and hence that evidence that the charges contained in such article were true of the plaintiff was properly excluded.</p>

<p>Error to the district court for Madison county: James F. Boyd, District Judge.</p>

<p>Error to the district court for Fillmore county: George W. Stubbs, District Judge.</p>

<p>1. Marshaling Assets: Limitation or Rule: Creditor Having Lien on Two Securities. The rule as to marshaling assets has its proper exceptions and limitations, and where, hy reason of the circumstances in a particular case, it would be inequitable and work an injustice to require one of two creditors having a lien on two securities to first resort to the one on which the other creditor has no lien, a court of equity will not enforce the rule.</p> <p>2. -. Ordinarily, where several creditors having a common debtor, who has several funds, all of which can be reached by one creditor and only a part of the funds by others, a. court of equity ■ will require that the former shall take payment out of the funds to which he can resort exclusively, so that all may receive payment.</p> <p>3. Subrogation. It is likewise a rule in equity, that if a prior creditor having security on two funds satisfies his demand out of the security or fund which alone is pledged to a junior creditor, and thereby exhausts that fund or security, the latter creditor will be subrogated to the former’s lien upon that fund or security which is not exhausted.</p> <p>4. -. Held, In the case at bar, that the plaintiff is entitled to equitable subrogation to the lien of a prior creditor on other security foi^ any balance remaining due after the application of the proceeds . of the security on which both have liens to the payment in full of the prior incumbrance.</p>

<p>• 1. Written Offer to Allow Judgment to Be Taken: Acceptance: Notice. A written offer to allow judgment to be taken against a defendant for a sum specified, made under the provisions of section 565 of the Code of Civil Procedure, to be available for the purpose of the rendition of a judgment on siich offer of compromise, must be accepted and notice thereof given to the party making the. offer within five days from the time of making the same.</p> <p>2. Motion to Vacate Judgment Rendered on' Offer to Compromise: Error. Held, In the case at bar, the trial court erred in overruling a motion to vacate a judgment rendered on an offer to compromise made in pursuance of the provisions of said section, it being disclosed by the record that there was no acceptance of such offer and no notice of acceptance given within the time and manner required by statute.</p>

<p>Error to the district court for Butler county: Edward Bates, District Judge.</p>

<p>1. Use of Land by Railway Company: Consent of Owner. Where a railway company, having no estate in land, places on it, with the knowledge and consent of the owner, an embankment, riprapping, ties and rails, and maintains and uses such track for its own purposes, without objection from the owner, such track remains the property of the railway company in the absence of any agreement to the contrary and of any intention on its part to make such track appurtenant to the real estate.</p> <p>2. Implied Agreement. Under such circumstances, an agreement by the licensor that the track shall remain the property of the railway company is implied. Fischer v. Johnson, 106 la. 181.</p> <p>3. Railway Company: Agreement: Deed: Estoppel. Where the railway company, before constructing its track, has settled a dispute as to the boundaries with the owner of the land, by the terms of which settlement deeds are to be made by each party to the other of their respective holdings, the fact that such deed is not made until after the construction of the track, and by its terms conveys the land “and all appurtenances thereto belonging," will not prevent the railway company or its grantees from showing, as against the owner and his grantees with notice, the true state of the title, when the track was built; nor will such deed carry the ownership of the tracks, they not being expressly mentioned, and not being legally appurtenant to the owner’s estate.</p> <p>4. Condemnation Proceedings: Damages: Value oe Track. In condemnation proceedings by the grantee railway company to obtain a right of way over the land, the valúe of the track should not be added to the owner’s damages for the taking of the land, the railway company having remained continuously in possession, since the first construction of the track by itself and its grantor.</p> <p>1. Eminent Domain: Award: Value oe Improvements. Ordinarily, when a railroad company enters upon land of another and constructs a road-bed and tracks thereon, and occupies the land for right of way purposes, and thereafter condemnation proceedings are had to appropriate the land on which the road-bed is constructed, under the law of eminent domain the landowner can not in such proceedings have the value of such improvements included in his award.</p> <p>2. Agreement With Third Parties: Private Use. Where, however, such improvements are made on the land of another under a contract, arrangement or agreement with third parties, to be used for private purposes, the law relative to the seizure of property for a public use does not apply.</p> <p>3. Determination of Eights. The rights of parties in such a case are to be measured and determined by legal principles generally applicable to improvements in the nature of trade fixtures by a tenant or licensee in the possession and use of the real estate on which the improvements are made.</p> <p>4. Eoad-bed and Track: Deed. A road-bed or embankment built out of the soil, and with riprapping for its protection, on which ties and rails are laid for use as a railway-track, is not an improvement placed upon land in the nature of a trade fixture, but is a part and parcel of the land itself, and where there are no exceptions or reservations will pass by a 'deed of conveyance as does the real estate on which constructed.</p> <p>5. Estoppel by Deed. Whatever be the form or nature of the conveyance of real property, if the grantor therein sets forth PU the face of such instrument, by way of recital or averment, either in express terms or by necessary implication, that he is seized or possessed of a particular estate in the premises conveyed, then such grantor and all persons claiming under him are ever afterward estopped from denying that he was so seized and possessed at the time he made such conveyance. Hagensick v. Castor, 53 Neb. 495.</p> <p>6. Eminent Domain: 'Deed: Road-bed: Ties and Rails: Fixtures. A railroad corporation, under an agreement with a land company to furnish the latter certain trackage facilities, entered upon land belonging to a third party and constructed a road-bed and railway-tracks thereon, and occupied and used the same as a licensee. Afterwards negotiations were entered into for the sale of the real estate, a part of which was thus occupied, by the owner to a purchasing syndicate. During the negotiations a deed for the land on which the improvement was made was requested and obtained from, the railroad company, which was executed and delivered so as to consummate the- sale, and in pursuance of a prior agreement with the landowner, in settlement of existing controversies over land boundaries, and which conveyance contained no reservation-or exception, and ran to the owner, who in turn conveyed to the purchasing syndicate. Held, (1) That in proceedings begun thereafter by those claiming under and through the railroad corporation to condemn a right of way along where such embankment was constructed, the title to the embankment or road-bed thus constructed had passed by such conveyances, and that the owners of the land were entitled to recover the value of the road-bed in Such proceedings; (2) that the ties and rails constituting the railway-track had not, under the circumstances disclosed in the record, lost their character as personal property in the nature of removable trade fixtures, and remained the property of the railroad company and those claiming under it, the value of which should not be included in the award to the landowners in such condemnation proceedings.</p>

<p>1. Judgment: Foreclosure: Petition. To entitle a mortgagee, who has taken a judgment, to foreclose, it is only necessary that the judgment and a return of execution as required by section 851, Code of Civil Procedure, be set out. It is not necessary in the petition to state the nonexistence of other proceedings to enforce the judgment.</p> <p>2. Transcript of Judgment Filed in Another County: Requirement of Code. Where a judgment has been transcripted to another county, issuance and return of execution, there will be a sufficient compliance with the requirements of section 851 of the Code of Civil Procedure, unless it affirmatively appears that the defendant did not reside there.</p> <p>3. Oral Agreement of Mortgagee to Accept Deed: Statute of Frauds. An oral agreement between the owner of the fee .and a mortgagee of real estate that the latter shall accept a deed from the former of the property in full satisfaction of the indebtedness secured by the mortgage, is within the statute of frauds, and, in the absence of facts to take it out of the statute, is not enforceable.</p>

<p>Error to the district court for Richardson county: John S. Stull, District Judge.</p>

<p>1. Tender of Proof: Preliminary Question. An offer of proof in support of a preliminary question, need not be confined to tbe same limits as tbe answer, but may extend farther in medias res, provided both relate to the same subject matter.</p> <p>2. Expert Witness: Preliminary Question. In an action for malpractice in amputating part of plaintiff’s hand and removing the metacarpal bone, it is proper to ash a professional witness for plaintiff, as a preliminary question, whether there is any method of cure without removing the bone.</p> <p>3. -: -. In such action, a surgeon of thirty-five years’ experience, who has inspected the amputated bone, may be asked to examine plaintiff’s hand and state what ligaments would need to be severed in the operation, without a preliminary showing that the question can be answered from such inspection.</p> <p>4. Action for Malpractice: Instruction. A charge in such an action that defendants are not liable for tbe consequences of tbe operation if they acted “in a careful and skillful manner under tbe belief that it was proper,” is too broad; tbe belief must have been one acquired in tbe exercise of due professional care and skill.</p>

<p>Error to the district court for Platte county: J. A. Grimison, District Judge.</p>

<p>1. Appeal and Error: Instructions. A judgment will not be reversed on account of the number of instructions given to the jury by the trial court, unless it clearly appears that the party complaining is prejudiced thereby.</p> <p>2. Burden of Proof. The giving of an instruction which places the burden of proof to establish some of the facts put in issue by the pleadings on the wrong party, is reversible error.</p> <p>S. Instructions. It is error to give the jury instructions which contain inconsistent and conflicting paragraphs relating to the burden of proof. Farmers’ Bank v. SarsJiman, 33 Neb. 445, approved and followed.</p> <p>: Theoey of Case. A party is entitled to have his theory ot 4. his case, as disclosed by the evidence, submitted to the jury, under proper instructions, and where such an instruction is tendered to the court the refusal to give it is reversible error.</p>

<p>Appeal from the district court for Holt county: William H. Westover, District Judge.</p>

<p>1. Appeal: Review oe Motion to Strike. In an equity cause brought to the supreme court on appeal, the ruling of the district court on a motion to strike an answer from the files can not be considered. Frenzer .v. Phillips, 57 Neb. 229.</p> <p>2. Procedure. To authorize the supreme court to review the rulings of the. trial court on motions and other matters of procedure, the party complaining must except to such rulings, file a motion for a new trial, and present the questions by a petition in error.</p> <p>3. Appeal: Motion por Judgment on Pleadings. The ruling of the district court on a motion for a judgment on the pleadings, can not be reviewed on appeal if it appears that the judgment is sustained by and conforms to the pleadings.</p>

<p>1. Evidence: Adjustment of Controversy. An amicable adjustment of a controversy between two parties is not admissible for the purpose of showing any liability of either.</p> <p>2. Bight of Appeal. Where defendant is sued in the county court, appears, files an answer, and participates in the trial by .cross-examining plaintiff’s witnesses, he is entitled to an appeal from a judgment rendered against him.</p> <p>3. Instructions. Instructions examined, and held not prejudicial.</p>

<p>Appeal from the district court for Merrick county: James A. Gtrimison, District Judge.</p>

<p>1. Will in Custody of Testator: Not Found After His Death: Presumption. Where a will is shown to have been made and left in the custody of the testator, if it can not be found after his death the presumption is that the testator destroyed it animo revooandi.</p> <p>2. Presumption of Fact Only. But this is a presumption of fact only. Itj.may be overcome by evidence, circumstantial or otherwise, to the contrary; and declarations of the testator may be shown for this purpose.</p> <p>3. Destruction of Subsequent Will Revoking Former by Implication: Effect. If the testator destroys a subsequent will revoking a former one by implication, such act, of itself, will not operate to revive the former will.</p> <p>4. Intention of Testator. Whether the former will is revived in such a ease depends upon the intention of the testator, which is to be deduced from all the circumstances.</p> <p>5. Common Law of England: Term as Used in the Statute. The term “common law of England,” as used in chapter 15a, Compiled Statutes, refers to that general system of law which prevails in- England, and in most of the United States by derivation from England, as- distinguished from the Roman or Civil law system. Hence the statute does not require adherence to the decisions of the English common-law courts prior to the Revolution in case this court considers subsequent decisions, either in England or America, better expositions of the general principles of that system.</p> <p>6. Subsequent Will: Revocation of Prior Will: Defeat of Probate. A subsequent will which has the effect of revoking a prior will may be shown for the purpose of defeating probate of such prior will, although by reason of its loss or destruction the exact dispositions made therein can not be shown and are incapable of execution. The revocation will be effectual, even though in other respects the will can not be carried out.</p> <p>7. Lost Will: Proof of Contents: Declarations of Testator. Although the contents of a lost will can not be proved solely by the declarations of the testator, such declarations are admissible to prove the existence of the will.</p> <p>8. Heirs: Competency as Witnesses in Will Contest. Persons who would take as lieirs or next of kin in case of intestacy are not disqualified, under section 329, Code of Civil Procedure, from testifying as to transactions and conversations with the deceased in a contest over an alleged will. McCoy v. Conrad, 64 Neb. 150, followed.</p> <p>9. Evidence as to Declarations of Testator. In such cases evidence as to declarations of the testator should be scrutinized carefully and weighed cautiously.</p> <p>10. Will: Execution. If the instrument is in fact signed, attested and subscribed as required by the statute, a formal attestation clause is not necessary. '</p> <p>11. -: -: Subscribing Witnesses. Hence the subscribing witnesses to a lost will may testify that t he testator signed and they witnessed and subscribed in the required manner, without proving that there was an attestation clause, or establishing the contents thereof.</p> <p>12. Bevocation. A subsequent will may have the effect of revoking a prior will, either by reason of an express clause of revocation, or of an inconsistent disposition of the testator’s property.</p> <p>13. Bevocation by Implication. Unless the subsequent will expressly revokes the former one, such former will is only revoked so far as it is inconsistent with the later; a complete revocation will not result unless the general tenor of the later will shows clearly that the testator so ■ intended, or the two instruments are so ■ plainly inconsistent as to be incapable of standing together.</p> <p>14. -: Not Favored. Courts do not favor revocation by implication, and incline to such a construction- as will give effect to both instruments.</p> <p>15. -; Fact of Making Subsequent Will Without Proof of Contents. The fact that a subsequent will was made is not sufficient, of itself, and without some proof of its actual contents, to show revocation of a former will.</p> <p>16. Parol Evidence. Parol evidence to show that a former will was revoked by implication by reason of a subsequent will, which can not be found, must be clear, unequivocal and convincing.</p> <p>1. Will: Evidence: Declaration cot Testator. Declarations of the testator are competent evidence on an issue whether a will was made, but will not suffice, of themselves, to prove its contents.</p> <p>2. Commissioners’ Opinions. AVhere opinions are prepared by commissioners, they must be permitted, necessarily, to state their reasons in their own way, without binding the court to all that is said 'arguendo, even though it concurs in the conclusions of law and express findings of fact.</p> <p>3. -: Matters Not Essential. Opinions expressed by the commissioners on matters not essential to the decision, while properly set forth to advise counsel that their arguments in briefs or at the hearing have been duly considered, do not become necessarily the law of the case, and will not preclude further investigation of such points, should they come before the court once more.</p>

<p>Assignment of Salary. An assignment of salary or fees of a public officer to be earned in the future is contrary to public policy and void.</p>

<p>Error to the district court for Valley county: James N. Paul, District Judge.</p>

<p>Appeal from the district court for Lancaster county: Albert J. Cornish, District Judge.</p>

<p>1. Affidavit: Constructive Service. An affidavit which contains no venue and which, also fails to disclose tlie county of which the officer before whom it was taken is an official, -is so fatally defective as to be worthless as a oasis for the publication of a sum-. mons on a nonresident defendant.</p> <p>2. Sheriff’s Deed: Notice of Jurisdictional Defect.- Where a sheriff’s deed forms one of the links in a chain of title, the party claiming thereunder is charged with notice of any jurisdictional defect in the proceedings which the record in the case from which the deed emanated shoirs; and if the record discloses on its face'that the court had no jurisdiction to enter the decree in the execution of which the deed was made, he can not claim to be a bona fide purchaser of the land.</p> <p>1. Affidavit for Constructive Service: Jurisdiction. An affidavit for service of summons by publication, which contains no venue, ana does not disclose the county of which the official before whom it purports to have been sworn is an officer, is void on its face, and confers no jurisdiction on the court to render a decree of foreclosure against nonresident defendants.</p> <p>2. Extrinsic Evidence. Such void affidavit can not-be cured or made valid by restoring to extrinsic evidence, when the validity of the dectee rendered thereon is assailed.</p> <p>3. Statute of Limitations: Adverse Possession: Minors. The statute of limitations, as to adverse possession, does not run against persons while under disability, such as minors; and an action brought to recover an interest in real estate within ten years after they arrive at the age of majority, is commenced in time.</p> <p>4. Former judgment in this case adhered to.</p>

<p>1. Divorce: Petition: Demurrer. In an action brought by the wife for a divorce on the ground of cruelty, a demurrer to the petition on the ground that it shows condonation of the offense charged will not be sustained unless the statements of the petition plainly show acts and conduct on the part of the wife amounting to condonation. Generally, the question of condonation in such cases should be tried on the evidence as an issue of fact.</p> <p>2. Leave to Refile Pleading. A supplemental petition' was filed by the plaintiff and a copy thereof served on the attorney for the defendant some months prior to fhe trial of the case. The supplemental petition was,stricken from the files for the reason that no notice thereof was given the defendant, and the same was filed without leave of court. Immediately thereafter the plaintiff was given leave to file her supplemental petition. Held, That this did not constitute reversible error.</p> <p>3. Notice to Take Depositions: Motion to Suppress. The plaintiff gave notice to the attorney of the defendant of the taking of depositions in the state of Ohio. The defendant at the time was confined in a jail in Ohio, and his attorney, immediately on receipt of the notice, sent the same to him through the mail. The notice never reached him, and he was unrepresented ,at the taking of the plaintiff’s depositions, and her witnesses were not cross-examined in his interest. These depositions were taken three months or more before the trial of the case, and no effort was made to secure a cross-examination of the witnesses prior to the trial. Held, That the court properly refused to suppress the depositions.</p> <p>4. Motion for Continuance. Where the affidavit in support of a motion for a continuance does not set out the facts and circumstances to which an absent witness will testify, and especially where it is not shown that there are no other available witnesses by .whom the facts known to the absent witness can he proved, the continuance of the case should be denied.</p>

<p>1. Imputed Negligence. Except with respect to the relation of partnership, or of principal and agent, or of master and servant, or the like, the doctrine of imputed negligence is not in vogue in this state.</p> <p>2. Negligence as a Matter of Law. Unless the inference of negligence from the conduct of a party is so direct and immediate as to he within the common and universal experience of mankind, the court may not instruct the jury that he was negligent as a matter of law.</p>

<p>Error to the district court for Cedar county: Gut T. Graves, District Judge.</p>

<p>1. Official Bond: Denial of Execution: Evidence. Production of an alleged official bond from the proper official custody, together with the record of its approval, are not sufficient evidence of its execution when the latter is denied.</p> <p>2. Sheriff: Proceeds of Judicial Sale. The statute constitutes the sheriff malting a judicial sale of real property the sole custodian of the fund derived from such sale, between the date thereof and the date of confirmation, • and, upon the happening of the latter event, makes it his duty to pay the money to the person or persons entitled thereto.</p> <p>3. -: -; Clerk of Court. The sheriff and the purchaser disobey this statute at their peril, but they can not by such disobedience, and the payment of the money to the clerk of the court, impose obligations upon him, as such clerk, foreign to the duties of his office.</p> <p>4. Tender. A tender in an answer or during the progress of the trial, does not necessarily admit the validity of the plaintiff’s cause of action.</p> <p>1. Official Bond: Denial: Evidence. The introduction in evidence of a certified copy of what purports to be an official bond, without proof of its execution and delivery, is not sufficient to authorize the court to render a judgment against the sureties thereon where its execution and delivery are denied by them.</p> <p>2. Sheriff Sole Custodian of Proceeds of Judicial Sale. The sheriff making a judicial sale of real property under a decree of foreclosure, is the sole custodian of the fund derived from such sale between the date thereof and the confirmation of such sale, and upon such confirmation it is his duty to pay the money to the person or persons entitled thereto in conformity to the order of the court.</p> <p>3. Payment to Clerk: Liability Not Determined. Whether the payment of the money by the purchaser or by the sheriff to the clerk of the court in vacation, and before a confirmation of the sale, is payment into court so as to charge the clerk and his sureties on his official bond with its repayment, is not determined.</p> <p>4. Denial of Execution and Delivery of Bond by Sureties: Tender by Principal. Where the sureties deny the execution and delivery of the official bond, and the clerk defends on the ground that he merely received the money as bailee, and not in his official capacity as clerk, a tender of part payment by him does not impair the defense of the sureties.</p> <p>5. Confirmation is Condition Precedent to Plaintiff’s Right to Proceeds. Before a plaintiff in a foreclosure suit can recover the proceeds of a judicial sale on his decree, he must show his right thereto by proving the confirmation of the sale.</p> <p>6. Former judgment adhered to.</p>

<p>1. Municipal Corporation: Contract: Advertising eor Bids. A city or village can enter’ into a valid contract for the erection or construction of any work authorized by section 69, article 1, chapter 14, Compiled Statutes, only after it has advertised for bids as required by subdivision XV of such section, and then only with some person in accordance with a bid tendered by him in response to such advertisement. ’</p> <p>2. Object of the Statute. The object of that subdivision is to invite competition and to prevent favoritism and fraud; to attain that ol joot it is essential that the bidders, so far as possible, be pi a 3d on equal footing, and be permitted to bid on substantially the same proposition, and on the same terms.</p> <p>3. Bid Changed After Expiration of Time: Its Acceptance Unauthorized. Where a bid, filed within the time fixed by the advertisement for receiving bids, is substantially changed and modified after such time, it is to be regarded as a' new bid, received after other competitors, by the terms of the notice, had a right to presume that the contest was closed; consequently, its acceptance would be in violation of the provisions of said subdivision, as above construed, and would impose no liability on either party.</p> <p>4. Recovery of Deposit. Where a bid, under the circumstances mentioned in the preceding paragraph, is accompanied by a deposit, as a guarantee that the bidder will enter into a contract in accordance with the terms of his bid if accepted, upon the refusal of the bidder, after his bid is accepted, to enter into such contract, he is entitled to a return of his deposit, because, under such circumstances, such bid and its acceptance can not be made the basis of a valid contract.</p> <p>5. No Estoppel. In an action to recover such deposit, the plaintiff is not estopped to deny the validity of the bid and its acceptance, nor does the maxim, Potior est conditio possidentis, apply in such a way as to defeat a recovery.</p>

<p>Error to the district court for Saline county: George W. Stubbs, District Judge.</p>

<p>Error to the district court for Douglas county: Lee S. Estelle, District Judge.</p>

<p>Appeal from the district court for Antelope county: John S. Robinson, District Judge.</p>

<p>1. Unrecorded Contract: Notice: Subsequent Incumbrancer. Inclosing an eighty-acre tract with, other land, with a post and wire fence, and using the same for pasturing cattle, is sufficient notice of the rights of a purchaser who holds it by an unrecorded contract to put a subsequent incumbrancer on inquiry as to the purchaser’s rights.</p> <p>2. Evidence. Evidence examined, and held sufficient to sustain the ■ findings and judgment of the trial court.</p>

<p>Error to the district court for Dodge county: Conrad Hollenbeck, District Judge.</p>

<p>Error to the district court for Lancaster county: Albert J. Cornish, District Judge.</p>

<p>Error to the district court for Lancaster county: Lincoln Frost, District Judge.</p>

<p>1. Forged Deed: Evidence. Evidence examined, and found sufficient to sustain the conclusions of the trial court that the deed in question -was a forgery.</p> <p>2. Wrongful Possession of Land. A surety who pays a debt and wrongfully takes possession of the principal debtor’s land can not require, as a condition precedent to yielding possession to the principal’s heir, that the latter should reimburse him for such payment.</p> <p>3. Action for Rents and Profits: Subrogation: Credits. One who pays a mortgage covering land in which lie has no legal interest, and who is in no way liable for the mortgage, is not entitled to be subrogated to tbe rights of the mortgagee; but if the former is in possession he may b.e allowed a credit for such payments as against an action by the mortgagor for an accounting for rents and profits.</p>

<p>Error to the district court for Douglas county; Willard W. Slabaugh, District Judge.</p>

<p>1. Errcr: Review. A much stronger case is necessary to warrant this court in interfering with a second verdict and judgment on the merits by reason of alleged error in setting aside a prior verdict and granting a new trial, than where a motion for a new trial has been denied.</p> <p>2. Instruction: Notice oe Insolvency. An instruction, that notice of facts sufficient to lead a prudent man to the conclusion that a debtor “could not meet his obligations as they matured in the ordinary course of business” is notice of the insolvency of such debtor, within the meaning of the bankruptcy act, is erroneous.</p> <p>3. Preferred Creditor: Recovery oe Assets. The trustee in bankruptcy may recover money paid by the bankrupt as a preference, only when the person receiving it had reasonable ground to believe that a preference was intended.</p> <p>4. -: Notice. If the creditor has reasonable ground to believe that the debtor is insolvent, and the obvious effect of. receipt of the money under those circumstances is to give him an advantage over other creditors, he is chargeable with notice of intent to prefer.</p> <p>5. Bankruptcy Act: Insolvency: Question oe Fact. Whether a creditor had reasonable cause to believe his debtor insolvent within the purview of section 60 of the bankruptcy act is a question of fact.</p> <p>6. Notice. In determining this question, it is not necessary to find that the creditor actually knew or believed that the debtor was insolvent. He is chargeable with notice of such facts as a reasonable inquiry, in view of the circumstances with respect to the debtor’s condition which were brought home to him, might fairly be expected to disclose.</p> <p>7.-: Sufficiency. But a mere knowledge that the debtor has other liabilities, or of circumstances which could operate no further than to create a suspicion of possible insolvency, will not necessarily suffice.</p> <p>8. Preference: Colorable Device. A creditor will not be permitted to obtain a preference indirectly by transfer of his account, procuring a third party to loan money to the debtor for payment of such creditor, or other colorable device or transaction intended to evade the provisions of the bankruptcy act.</p> <p>9. Transfer of Account: Good Faith. But an absolute transfer of an account against the insolvent debtor, in good faith, to one who afterwards buys the latter’s stock of goods and obtains credit for such account on the purchase price, without any agreement or understanding that such use was to be made thereof, or that the purchaser of the account was to be protected by the creditor in any way, does not constitute a preference of the creditor to the extent of the money he received on sale of his claim.</p> <p>10. Remedy. In such case the remedy is against the purchaser of the stock, who received credit on the purchase price for the account so transferred, in case he had reasonable ground to believe that a preference was intended.</p> <p>11. Evidence. A schedule of liabilities filed by the bankrupt in bankruptcy proceedings, is not competent evidence on an issue between the trustee and third persons as to the financial condition of the bankrupt three months before such proceedings were instituted.</p> <p>12. Good Faith: Intention: Evidence. While a person’s intention is to be determined primarily from his acts, where such acts are ambiguous and good faith is in issue, he may testify what his intention was.</p> <p>13. Cross-examination of Hostile Witness: Discretion of Trial Court. How far, if at all, a party shall be permitted to cross-examine, or put leading questions to his own witnesses, where they appear to be hostile or unwilling, is in the discretion of the trial court, and its rulings in such matters will not be disturbed except for manifest abuse of discretion.</p> <p>14. Questions Hot Raised in Briefs. This court is not bound to examine questions not so raised in the briefs as to state specifically what is complained of, the reason and basis of the complaint, and the exact portions of the record material thereto.</p> <p>1. Bankruptcy Act: Unlawful Preference. A creditor of a bankrupt can not escape the consequences of the bankruptcy act regarding unlawful preferences by assigning his account to a purchaser of the property of the bankrupt under an arrangement whereby such purchaser offers to assume the liability, and satisfy such account contingent upon the purchase of the bankrupt’s property, and where in the sale of such bankrupt’s property, as a part of the consideration, such purchaser agrees to and assumes such liability, and reserves from the purchase price an amount sufficient to satisfy the same.</p> <p>2. Legal Effect of Conditional Transfer of Account. In such a case the legal effect of the transaction is to appropriate out of the assets of the bankrupt the amount required and used in the satisfaction of such claim by the purchaser assuming the liability, and other essential elements not being lacking, an unlawful preference in favor of such creditor results therefrom.</p> <p>3. Schedule Admissible in Evidence. In a contest between a trustee in bankruptcy and one sought to be charged as a creditor having received an unlawful preference, the schedule of liabilities filed by the bankrupt in the bankruptcy proceedings is admissible in evidence on. the issue of insolvency as tending to prove the insolvency charged.</p> <p>4. Hackney v. Hargreaves Brothers, 3 Neb. (Unof.) 676, adhered to.</p>

<p>1.‘ Mortgagee: Attachment. A mortgagee of chattels does not waive or lose his lien by causing an attachment to he levied upon the mortgaged property.</p> <p>2. Chattel Mortgage: Recording: Bankruptcy. A chattel mortgage executed and delivered more than four months prior to bankruptcy of the mortgagor, is not voidablé because not recorded until a subsequent date within such period of four months.</p> <p>3. -: Defective Description. A chattel mortgage which would he invalid as against creditors and purchasers in good faith by reason of defective description of the property mortgaged, may be good as between mortgagor and mortgagee, where the property in fact mortgaged is identified.</p> <p>4. -: Indefinite Description. Such a case differs from one where no specific chattels are mortgaged, hut there is an attempt to mortgage a certain number out of a mass without separating or identifying them.</p> <p>5. Lien: Articles not Separated from Mass. No lien upon specific chattels is created in a case of the latter sort until they are separated or identified and it is agreed that the mortgage shall apply to them.</p> <p>6. Bankruptcy: Preference. If a chattel mortgage is executed more than four months before bankruptcy, which creates no lien on specific chattels, and afterwards, within the four months, while the mortgagor is insolvent, he separates or identifies certain chattels and agrees that the mortgage shall apply to them, the lien is created then for the first time, and constitutes a preference within the meaning of section 60 of the bankruptcy act</p> <p>7. Question for Jury. Evidence examined, and held to present a question for the jury whether the specific chattels in controversy were mortgaged in the first instance, or were afterwards agreed upon as the mortgaged property.</p>

<p>Error to the district court for Lancaster county: Edward P. Holmes, District Judge.</p>

<p>1. Proceeding in Error: Motion eob New Trial: License Board. A motion for a new trial is not necessary in order to obtain a review of the judgment of the district court entered on the hearing of an appeal taken from the order of a license board granting or refusing a license to sell intoxicating liquors.</p> <p>2. Appeal from License Board. On the hearing of such appeal, the district judge should exercise his independent judgment, being governed by the evidence found in the record alone; his judgment should not be controlled or influenced by the finding made by the board from which the appeal is taken.</p> <p>3. Evidence. Evidence examined, and held not to support the finding of the district court.</p>

<p>Rehearing of case reported in 64 Neb. 162.</p> <p>Error to the district court for Cass county: Basil S. Ramsey, District Judge.</p>

<p>Error to the district court for Douglas county: William W. Keysor, District Judge.</p>

<p>Allottee of Indian Lands: Rights oe Widow. Under an act of congress entitled “An act to provide for the sale of a part of the reservation of the Omaha tribe of Indians in the state of Nebraska,” etc., the widow of an allottee dying before the issuance of a final patent, and without issue, takes a life estate in the allotment to her husband, remainder over to his father.</p>

Original proceeding in tbe nature of quo warranto to determine the rights of the several parties to office as fire and police commissioners of a city of the metropolitan class. Frank E. Moores, mayor, et al. intervene. Dismissed as to relators and interveners.

<p>Error to the district court for Cherry county: William H. West oyer, District Judge.</p>

<p>Error to the district court for Burt county: Charles T. Dickinson, District Judge.</p>

<p>1. Insolvent Debtor: Transfer of Property. Where property in large amount, without fraudulent intent, has been turned over by an insolvent debtor to his attorneys in consideration of past and future services and a general retainer for himself and wife, any creditor desiring to attack such transfer should do so before services to the full value of .the property are rendered.</p> <p>2. Former Decision. Former conclusion as to defendants Whédon and Magoon, so far as relates to such property, adhered to.</p> <p>3. Garnishment: Waiver. Taking a general money judgment and issuing execution, which is returned wholly unsatisfied, is not a waiver of attachment lien hy garnishment.</p> <p>4. —-——: -. Taking no order against a garnishee who denies holding property, not a waiver of garnishment liens.</p> <p>5. Garnishment Lien: Bill in Equity. Garnishment lien may be enforced by bill in equity, in proper case.</p> <p>6. - — •: —-.. By promptly resorting tó equity after judgment in principal action, a garnishment lien is extended through the equity action.</p> <p>7. Liability of Garnishee. Garnishee turning over money on order oi principal debtor pending such action is liable to the creditor therefor.</p> <p>8. Former Conclusion Adhered to. Former conclusion adhered to, as to property conveyed to D. B. Thompson.</p> <p>1. Corporation: Garnishment., A sto.cRRolcler’s interest in a corporation, and in all of its property and rights, is represented by his stock. A levy upon the stock of a debtor by garnishment of the corporation pursuant to the statute will impound dividends upon the stock declared while the proceedings are pending.</p> <p>2. -: -: Bona Fide Pubchasee. If the debtor has sold or pledged the stock in good faith before the levy, the right of such bona fide purchasers will not be affected by the levy, even though, by the books of the corporation, the stock appears to be the property of the debtor and is so regarded by the corporation.</p> <p>3. Appeal: Errors Not Considered. In appeals to this court in equity cases, the findings of the trial court must stand or fall upon the pleadings and evidence contained in the record. Errors of the trial court in receiving or rejecting evidence, or upon questions arising upon the pleadings, can not be corrected upon such appeal.</p>

<p>1. Malicious Prosecution: Probable Cause: Question of Law: Waiver. Whether or not a given state of facts constitutes probable cause for procuring plaintiff’s arrest is ordinarily a question of law. Where, however, defendants have requested special findings substantially embracing this question, they can not after-wards complain of an instruction submitting its decision to the jury.</p> <p>2. Evidence: Special Findings. Evidence held to support the special findings in this case if the jury accepted plaintiff’s testimony, as they had a right to do.</p> <p>3. Malicious Prosecution: Evidence. Defendants having procured plaintiff’s arrest on the ground that there was danger that he would leave the state to avoid an examination in proceedings in aid of execution, the county judge’s finding that the evidence did not disclose such intention is admissible in evidence at the trial of plaintiff’s action for malicious prosecution based on such arrest and proceedings, especially where the termination of such proceedings is disputed.</p> <p>, 4. Evidence of Intention: Error. Evidence of plaintiff as to his intentions with regard to leaving the state, and as to his arrangements, about the time of his arrest, to remain, defendants not being chargeable with knowledge of either, and such proof merely tending to show plaintiff’s innocence of the charge made by defendants, is immaterial in an action of malicious prosecution, and, where it may have created some sympathy for plaintiff, its admission is prejudicial error.</p> <p>5. Instruction: Proceedings in Aid of Execution: Arrest. It is not error to refuse, in a'n action for maliciously procuring plaintiff’s arrest in proceedings in aid of execution, an instruction that makes an intention on the part of plaintiff to leave the state a sufficient ground for arresting him. The statute only permits arrest where there is danger defendant will not obey a citation to appear.</p>

<p>1. Ejectment: Set-Off. In an action of ejectment an offset for board and maintenance of the plaintiff by the defendants can not properly be introduced; it being pleaded merely as an account and not shown to have any direct connection with plaintiff’s cause of action for possession of land and for rents and profits.</p> <p>2. Motion to Strike: Demurrer. Where a motion to strike out such matter on the part of the plaintiff has been overruled by the court and exceptions taken to such action, the subsequent sustaining óf a demurrer to the same matter on the ground that it does not constitute a defense, is not prejudicial error.</p> <p>3. Cross-Demand: Demurrer: Remittitur. Error in sustaining a' demurrer to an allegation of taxes paid, made by way of cross-demand, is without prejudice where plaintiff subsequently remits from the amount of her recovery the full alleged amount of such taxes.</p> <p>4. Demurrer: Error Without Prejudice. Error in sustaining a demurrer to a counter-claim for improvements in an action for rents and profits as well as for possession of land, is without prejudice where it appears from the record that all such improvements were permitted to be shown to the jury under the name of necessary repairs, and the jury were instructed to allow a reduction of damages in the amount of all necessary repairs.</p> <p>5. Instruction: Pleading. The fact that the jury were told that an “equitable right” would be no defense against a “legal right” of the plaintiff, if it was found that she had one, is riot prejudicial error where no equitable right to the premises is either pleaded or offered to be proved,</p> <p>6. -: -. An instruction which tells tlie jury that they shall allow “rental value” of the premises as “damages for withholding possession” is not prejudicial error, although the petition of plaintiff makes no claim for any damage aside from rents, issues and profits.</p>

<p>Error to the district court for Douglas county: William W. Key sor, District Judge.</p>

<p>Error to the district court for Platte county: Conrad Hollenbeck, District Judge.</p>

<p>1. Void Judgments: Vacating. The provisions of section 602, Code of Civil Procedure, apply to voidable, but not to void, judgments.</p> <p>2. Attachment: Non-Resident. The filing of a bond is not jurisdictional to the right to have an attachment issued against a nonresident defendant for a debt not due.</p> <p>3. Bill of Exceptions: Affidavits. Affidavits filed in support of motions in the district court will not be examined by this court, unless properly incorporated in a bill of exceptions.</p> <p>4. Judgment: Fraud: Remedy. Where a judgment is obtained by a fraudulent misrepresentation that induces the party to remain away from court to his injury, the remedy for vacating such judgment is not by a motion filed under subdivision 3 of section 602, Code of Civil Procedure, but by petition and summons under subdivision 4 of said section.</p>

<p>1. Telephone and Telegraph Companies: Use op Streets: Nuisance. The term “public roads,” in section 14, chapter 89a, Compiled Statutes, giving telegraph and telephone companies a right of way along the public roads of the state, does not include the streets and alleys of a municipal corporation, and the unauthorized use of such thoroughfares for such purpose constitutes a public nuisance.</p> <p>2. Equity. A court of equity will not lend its aid to protect a suitor in maintaining a public nuisance, nor in the doing of an act punishable under the laws of the state.</p>

<p>1. Guardian: Final Settlement: Attorney’s Fee. In the final settlement of the accounts of a guardian, that he has not paid certain attorney’s fees charged therein, is not of itself a valid objection to the allowance of such item, where it appears that there is a bona fide arrangement between himself and the attorney that the amount allowed by the court therefor shall be paid to the latter.</p> <p>2. -: Attorney’s Fee. A guardian has authority to bind the estate of' his ward by a contract, reasonable in its terms, for services reasonably necessary to the preservation and management of such estate.</p> <p>3. -: -. Where a part of such services were rendered as guardian ad litem, in proceedings had in the same court as that in which the general guardian’s accounts are adjusted, and no specific fee has been allowed the guardian ad litem in such proceedings, the county court may include such fee in the total allowance for attorney’s fees for the entire services rendered.</p> <p>4. Fees of Guardian Ad Litem. The fees of a guardian ad litem are not in all eases and under all circumstances taxable in whole or in part to the adverse parties.</p>

<p>Appeal from the district court for Seward county: Samuel H. Sornborger, District Judge.</p>

<p>Error to the district court for Wayne county: James F. Boyd, District Judge.</p>

<p>Error to the district court for Douglas county: Willard W. Slabaugh, District Judge.</p>

<p>Error to the district court for Douglas county: William W. Keysor, District Judge.</p>

<p>Error to the district court for Cuming county: Guy T. Graves, District Judge.</p>