HASTINGS, C. This is an action for conversion, brought by the wife of an execution debtor against the execution creditor, who procured a levy and sale of personal property. Complaint is made of certain instructions to the jury given and refused; that the verdict is not sustained by sufficient evidence; that the evidence shows an estoppel on the plaintiff's part to claim the property in question by reason of her conduct after the levy in connection with giving a redelivery bond to the officer; and, finally, certain refusals of evidence by the trial court are urged as being fatally erroneous. The complaint, en masse, as to the giving of eight instructions, and in the same way as to the refusal of four instructions, need not be considered. In each batch are some, at least, which were proper. Under the repeated ruling of this court, if any of those refused should not have been given, the action of the court must be affirmed, and the same is true as to the eight given by the court. The district court held, and instructed the jury, that the signing of the redelivery bond of itself would not estop the plaintiff from claiming title to the property after its return to the officers who had levied upon it. No exception appears to the giving of any of the instructions in which this is stated except instruction 13. The giving of the instruction is expressly complained of in the petition in error, and it was expressly excepted to at the time it was given. It contains, as before stated, the district court's conclusion that the giving of the redelivery bond of itself would constitute no estoppel against plaintiff's claiming title in the property after its return to the officer. This is apparently the main legal question in the case. We are not cited to any holding that the recitals in this bond would prevent the assertion of title by the plaintiff to the property after the bond had been complied with and the property returned. In Cooper v. Mill Co., 48 Neb. 420, 67 N. W. 178, a number of cases are cited to the proposition that such a bond would not create such an estoppel, but it is ex

pressly declared that this question does not arise in that case, and is not decided. Counsel for the defendant says that the question has not been decided in this state. In Hilton v. Ross, 9 Neb. 406, 2 N. W. 862, the giving of such a redelivery bond is held not to estop the defendant from questioning the validity of the seizure and moving to dissolve the attachment. This conclusion is reaffirmed in Wilson v. Shepherd, 15 Neb. 15, 16 N. W. 826. The cases cited with apparent approval by this court in 48 Neb. 424, 67 N. W. 178, from other states, hold that the surety on such a bond may, by appropriate action, set up title in himself after the property has been restored to the officer. We are satisfied with the soundness of this doctrine and the correctness of the trial court's conclusion that the redelivery bond of itself did not estop plaintiff from claiming title. It is thought that there was no prejudicial error in the giving or refusing of instructions.

The evidence seems to have been sufficient to have supported even a larger verdict than plaintiff recovered, but the jury were warranted in concluding that the property was really bought in for the most part by the husband's brother, and for plaintiff and her husband's use. The woman, in truth, seems to have been simply given a verdict for one cow's value, and the evidence clearly showed her placing of one cow on the farm.

The evidence offered that defendant loaned money to plaintiff's husband on the faith of the latter's ownership of the property in question was rightly refused. No offer was made to connect the plaintiff with the transaction. The only issues were whether or not the property belonged to the plaintiff, and whether or not she was estopped from claiming it by the redelivery bond and the circumstances of its execution. No estoppel by reason of permitting her husband to get credit on the strength of ownership of her property was alleged, and the facts of these negotiations between defendant and her husband, which were not offered to be connected with her, had no bearing on the questions at issue. The same is true, with the addition that the whole matter was still more remote, as to proposed evidence of conversations of defendant with Axel Anderson, the purchaser of the property at the execution sale. Quite possibly the statements of Axel Anderson were as to things which would have tended to disprove plaintiff's ownership; but, if so, his statements out of court to the defendant had no place at the trial. His knowledge, if desired, should have been put in through his own testimony. His statements are not declarations as to title, made by an owner, but are merely as to the conducting of the sale held at defendant's instance.

It is recommended that the judgment of the trial court be affirmed.

DAY and KIRKPATRICK, CC., concur.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment of the district court is affirmed.

INGLEHART v. LULL et al. (Supreme Court of Nebraska. May 21, 1902.) APPEAL FROM JUSTICE-TRIAL-ISSUES-PA

ROL EVIDENCE.

1. Where an appeal is taken from a judgment of a justice of the peace to the district court, the case is to be tried in the latter court upon the same issues that were presented in the court from which the appeal was taken, with the exception of new matter arising after the trial.1

2. Where the transcript from the justice court filed in the district court on appeal fails to show what issues were tendered in the justice court, parol testimony is admissible to show what issues were presented.

(Syllabus by the Court.)

Commissioners' opinion. Department No. 1. Error to district court, Douglas county; Baxter, Judge.

Action by Lyman C. Lull and others against Byron E. Inglehart. Judgment for plaintiffs before a justice was affirmed by the district court, and defendant brings error. Affirmed.

Brome & Burnett, for plaintiff in error. Richard S. Horton, for defendants in error.

DAY, C. On February 4, 1899, Lull and Skinner recovered a judgment before a justice of the peace in and for Douglas county against Byron E. Inglehart, as indorser and guarantor of a promissory note which had been assigned to the plaintiffs. From this judgment Inglehart appealed to the district court, where, upon trial, judgment was again rendered against him. To review this judgment he brings the case to this court by proceedings in error.

The petition of the plaintiffs in the district court contains the necessary averments to state a cause of action. The defendant's answer admitted the indorsement of the note and the delivery thereof to the plaintiffs, but by way of defense alleged, in paragraphs 2 and 3, two defenses, one pleading payment and the other laches. On motion of the plaintiffs the court struck from defendant's answer paragraphs 2 and 3 upon the sole ground that the issues thus sought to be tendered were not presented in the court below. This ruling of the court presents the only question we are asked to review. The rule is now well settled in this state that, where an appeal is taken from a county court or a justice of the peace to the district court, the case is to be tried in the latter court upon the same issues that were presented in the court from which the appeal was taken, with the exception of new matter arising after the trial.

1 See Justices of the Peace, vol. 81, Cent. Dig. I 660.

Darner v. Daggett, 35 Neb. 695, 53 N. W. 608; Baier v. Humpall, 16 Neb. 127, 20 N. W. 108; O'Leary v. Iskey, 12 Neb. 136, 10 N. W. 576; Fuller v. Schroeder, 20 Neb. 631, 31 N. W. 109; Bishop v. Stevens, 31 Neb. 786, 48 N. W. 827; Robertson v. Bank, 40 Neb. 235, 58 N. W. 715; Levi v. Fred, 38 Neb. 564, 57 N. W. 386; Cobbey v. Buchanan, 48 Neb. 391, 67 N. W. 176; Halbert v. Rosenbalm, 49 Neb. 498, 68 N. W. 622; Bellamy v. Chambers, 50 Neb. 146, 69 N. W. 770. The transcript of the record from the justice court filed in the district court did not disclose what issues were tendered before the justice. It contains the simple recital of the "appear. ance" of the defendant, followed by a judg ment for the plaintiffs in the usual form. The record brought to this court contains no bill of exceptions, so that it must be presumed that sufficient evidence was before the court to sustain its finding, if it be determined that it was competent for the court to hear testimony aliunde of the record to show what issue was in fact presented in the justice court. It is urged by counsel for the defendant that where a party on appeal alleges that the issues are different from those presented in the court from which the appeal is taken he must establish that contention by the record, and cannot do it in any other way. We do not wholly agree with this contention. If the record from the justice court had disclosed what issues were presented in that court, then it would have been repugnant to a familiar rule of evidence to receive parol proof to contradict the record. But where, as in this case, there is uncertainty in the record as to whether precise questions were raised and determined in the former trial, it is competent to supplement the record by extrinsic evidence. Counsel for defendant cite the case of Cobbey v. Buchanan, 48 Neb. 391, 67 N. W. 176, as decisive of the question that the record is the only evidence to be considered in determining what issues were tried in the lower court. An examination of that case will disclose that it does not sustain the contention made for it. In that case a motion was made to strike certain paragraphs of the defendant's answer upon the ground that new issues were sought to be tendered by it. There was no evidence by affidavit or otherwise to support this contention. The transcript of the record from the lower court to the district court simply showed an "appearance" of the defendant. Upon the facts thus presented this court very properly held that the defendant was not required in the lower court to file an answer; that he was at liberty in the lower court to interpose any defense he saw fit; and, for aught that was disclosed by the record, he did interpose before the lower court the defenses sought to be stricken out on the appeal. In that case the district court refused to strike the paragraphs assailed because there was no evidence that the issues tendered were different from those presented in the lower court. In the case at bar there was evidence

which we must presume was sufficient, in the absence of a bill of exceptions, to show that the issues tendered by the answer were different from those presented in the court below. We therefore recommend that the judgment of the district court be affirmed.

HASTINGS and KIRKPATRICK, CO.,

concur.

PER CURIAM. For the reasons stated in the foregoing opinion, the judgment of the district court is affirmed.

THOM V. DODGE COUNTY. (Supreme Court of Nebraska. May 21, 1902.) WITNESS-EVIDENCE OF INTEREST-INSTRUC TIONS-DRAINAGE-LANDS ABUTTING ON HIGHWAY.

1. When, for the purpose of showing the interest of a witness, it has been proved that he is one of the obligors upon a statutory bond, the terms and obligations of which are matters of common knowledge, it is not error to refuse to admit the bond itself in evidence.

2. It is error to submit to a jury by instructions questions of fact not embraced in the issues, or concerning which there is no evidence.

3. A landowner, through or adjacent to whose lands is constructed and maintained a public road, has a right to such advantage from it by way of drainage as is incidental to its existence, and does not inconvenience the public or individuals, or injure the public work.1

(Syllabus by the Court.)

Commissioners' opinion. Department No. 3. Error to district court, Dodge county; Grimison, Judge.

Action by Alexander Thom against Dodge county. Judgment for defendant, and plaintiff brings error. Reversed.

E. F. Gray and Geo. W. Loomis, for plaintiff in error.

the bond itself in evidence, but the offer was denied. We do not see that he was prejudiced by the ruling. The execution and delivery of the bond in conformity to the statute were admitted. Its terms and conditions and the obligation it imposed upon the witnesses are, therefore, matters of common knowledge, and no useful purpose would have been served by making the instrument itself a part of the record.

2. The court, at the request of the county, instructed the jury that, if the ditch "will form an outlet for lateral ditches on plaintiff's land, and thereby provide a means of draining plaintiff's land,. * this would be a specifical benefit. to plaintiff's land, which you are permitted to consider in determining the question as to what extent his land is benefited by said proposed ditch." It does not appear that the construction of any lateral ditch upon the plaintiff's land was contemplated as a part of the improvement in question or otherwise, nor is there any evidence that the land was capable of drainage by that means. The instruction seems, therefore, to be clearly obnoxious to the familiar rule in this court against submitting to a jury by instructions questions of fact not embraced in the issues, or concerning which there is no evidence. The defendant in error seeks to uphold the instruction as having reference to such furrows and channels upon the surface of the land as are incidental to its cultivation, but this interpretation is manifestly too far-fetched. By common understanding a lateral ditch to a drainage ditch is itself a ditch especially constructed for the purposes of drainage.

3. Along the margins of the plaintiff's lands were certain public roads, at the sides of which were the usual burrow pits or road ditches, which served or might serve, to some extent, to relieve the lands of surface

AMES, O. This is a proceeding under chapter 89 of the Compiled Statutes to obtain a right of. way for a drainage ditch across a tract of land belonging to the plaintiff in error. An appeal was taken to the district court from an assessment of damages by the county board. In the course of the trial three errors are alleged to have intervened, which the plaintiff in error seeks to have corrected by this court. It was disclosed on the trial that two of the witnesses adverse to the plaintiff in error were petitioners for the construction of the ditch, and had signed the bond prescribed by section 16 of article 1 of the chapter, so as to enable the work to be prosecuted during the pendency of the appeal. The plaintiff in error, for the purpose, as he says, of showing the interest of the witnesses, then offered 1 See Highways, vol. 25, Cent. Dig. § 296 [r].

The jury were instructed, at the request of the county, that these ditches were constructed exclusively for the drainage of the road, and that no person has a right to use them for the drainage of land, and that in considering the question of benefits they were not to consider that the plaintiff had any vested right to the use of such ditches and the road grades for the drainage of his land. We think this instruction is somewhat broader than was warranted. Precisely what was meant by "vested right" we do not know, but we think that, so long as the road is maintained, the plaintiff has a right to such advantage from it, by way of drainage of his land, as is incidental to its existence and does not inconvenience the public or individuals or injure the public work. So far as appears, the road is likely to be maintained perpetually in substantially its present condition. If such drainage as is incidental thereto and does not injure or inconvenience the public or individuals suffices to relieve the plaintiff's lands from surplus water, his property will not be benefited

by the building upon it of a drainage ditch. That this instruction was intended covertly to negative this idea, and that it very probably was understood by the jury as so doing, appears to us to be quite evident, and we are therefore of opinion that the giving of it was error.

For these reasons we recommend that the judgment of the district court be reversed, and a new trial granted.

ALBERT and DUFFIE, CC., concur.

PER CURIAM. For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed, and a new trial granted.

KERSHAW ▼. BARRETT et al. (Supreme Court of Nebraska. May 21, 1902.) MARRIED WOMAN-ACTION ON NOTE-COVERTURE AS A DEFENSE.

1. In an action against a married woman on a note executed by her as surety for another, coverture is a complete defense, unless it be shown that such note was made with the intention on her part of binding her separate estate for its payment. Smith v. Bond,

76 N. W. 1062, 56 Neb. 529, followed.

2. Evidence examined, and held to support the findings and judgment of the trial court. Commissioners' opinion. Department No. Error to district court, Johnson county; Letton, Judge.

1.

DAY, C. Emily Kershaw brought this action in the district court of Johnson county against John E. Barrett and Alice Barrett to recover upon two promissory notes executed by the defendants to the plaintiff. John E. Barrett made no defense. Mrs. Barrett defended the action upon the grounds that she signed the notes only as surety for her husband; that she did not, directly or indirectly, receive any portion of the consideration for which the notes were given; that they were not given with reference to her separate property or business, or with the intention of binding her separate estate. The case was tried to the court without the intervention of a jury, resulting in general findings in favor of Mrs. Barrett. To review this judgment the plaintiff brings error to this court. The only errors assigned in the motion for a new trial and the petition in error relate to the sufficiency of the evidence to support the finding and judgment of the court.

It is admitted that Mrs. Barrett was a married woman at the time she signed the notes sued on, and the proof is undisputed

that she signed them merely as surety for her husband; that she did not, directly or indirectly, receive any part of the consideration for which the notes were given; and that the transaction had no relation to her separate property or business. The transaction in question having no relation to the separate estate or business of Alice Barrett, she is not liable on the notes, unless it is established that she signed them intending thereby to make them a charge upon her individual property. Banking Co. v. Wright, 53 Neb. 574, 74 N. W. 82; Association v. Stenger, 54 Neb. 427, 74 N. W. 846; Bank v. Smith, 55 Neb. 54, 75 N. W. 51; Smith v. Bond, 56 Neb. 529, 76 N. W. 1062.

It only remains to be considered whether Mrs. Barrett intended at the time she signed the notes to render her separate estate liable for their payment. The trial court found that she had no such intention, and this finding is supported by clear and positive testimony.

The plaintiff contends that the recitals of the notes are alone sufficient to show the intention of Mrs. Barrett to bind her separate property. The notes are alike in form, and each contains a recital as follows: "And to secure the payment of said amount, I hereby authorize, irrevocably, any attorney of any court of record to appear for me in such court, in term time or vacation, at any time hereafter, and confess a judgment, without process, in favor of the holder of this note, for such amount as may appear to be unpaid thereon, together with costs and $10 attorney's fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgment, hereby ratifying and confirming all that my said attorney may do by virtue hereof." The language above quoted amounts to nothing more than mere general engagements. There is nothing contained therein to indicate that the contract was made for the purpose and with the intention of binding her separate estate.

It is also urged by the plaintiff that certain statements contained in a letter written by John E. Barrett to the plaintiff, in which the notes were inclosed, were sufficient to indicate an intention on the part of Mrs. Barrett to bind her separate property. The portion of the letter referred to is as follows: "I will say it will take some time for me to recover from the losses of the last three years. My wife owns some property in her own name, and she owes nothing. You have treated me all right in this matter, and you can rest assured you will lose nothing." We seriously doubt whether the evidence was sufficient to show that John E. Barrett was the agent of his wife to make any statement binding upon her; but, granting that it was, there is nothing in the letter, in our opinion, tending to establish, even in a remote degree, that

the contract was made by Mrs. Barrett, intending thereby to bind her individual property.

From an examination of the record, we are clearly of the opinion that the judgment of the court is supported by the evidence. We therefore recommend that the judgment be affirmed.

HASTINGS and KIRKPATRICK, CC.,

concur.

PER CURIAM. The conclusion reached by the commissioners is approved, and, it appearing that the adoption of the recommendation made will result in a right decision of the cause, it is ordered that the judgment of the district court be affirmed.

FOSTER et al. v. MCKINLEY-LANNING LOAN & TRUST CO.

(Supreme Court of Nebraska. May 21, 1902.) MORTGAGE FORECLOSURE-APPRAISAL-JUDICIAL SALE-PUBLICATION-AFFIDAVIT. 1. Objections to the appraisement of real estate at a judicial sale are waived unless filed before sale.

2. Where the affidavit to a proof of publication alleges that the newspaper in which the publication was made is a legal newspaper, such affidavit is prima facie evidence of that fact.

3. Where the appraisement and certificates of liens are filed on the same day the notice of sale is first published, it will be conclusively presumed, in the absence of a showing to the contrary, that they were filed before the notice of sale was published.

Commissioners' opinion. Department No. 2. Error to district court, Greeley county; Munn, Judge.

"Not to be officially reported."

Action by the McKinley-Lanning Loan & Trust Company against Michael Foster and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Tibbets T. J. Doyle, for plaintiffs in error. Bros. & Morey and J. R. Swain, for defendant in error.

OLDHAM, C. This is a proceeding in er ror to reverse the judgment of the district court of Greeley county confirming a sale in a foreclosure proceeding. There is no bill of exceptions; hence the record stands unimpeached.

Objection is urged against the appraisement of the property, but the record shows that the objection was not filed in the court below until after sale, and consequently it comes too late to be taken advantage of.

Objection is made to the sufficiency of the proof of publication of the notice of sale because the proof fails to show that the paper in which the notice was published has a bona fide circulation of 200 copies weekly, and had been published in the county for 52 consecutive weeks prior to the publication of the notice. The affidavit attached to the proof of

publication states that the paper is a legal weekly newspaper, etc.; and this affidavit, by section 2, c. 49, Laws 1895, is made prima facie evidence of that fact. Consequently there is no merit in this objection.

The next objection is that the notice of sale was published on the same day that the appraisement and certificates of liens were filed, and it is urged that we should presume from this fact that the publication of the notice of sale was made before the appraisement and certificates of liens were filed; but, as we view it, all reasonable presumptions should be indulged to sustain the regularity of the proceedings in the lower court, and, where the appraisement and certificates of liens are filed on the same day that the notice of publication is first made, it will be presumed that they were filed prior to the publication of the notice of sale.

Finding no error in the record, we recommend that the judgment of the district court be affirmed.

BARNES and POUND, CC., concur.

PER CURIAM. The conclusion reached by the commissioners is approved, and, it appearing that the adoption of the recommendation made will result in a right decision of the cause, it is ordered that the judgment of the district court be affirmed.

SHARP v. CALL.

(Supreme Court of Nebraska. May 21, 1902.) APPEAL REVIEW.

Gandy v. Cummins, 89 N. W. 777, followed in a case of the same nature.

Commissioners' opinion. Department No. 2. Error to district court, Hamilton county; Sornborger, Judge.

"Not to be officially reported."

Action by Frank J. Sharp against Delmar W. Call. Judgment for defendant, and plainAffirmed. tiff brings error.

Hainer & Smith, for plaintiff in error. D A. Scoville, for defendant in error.

POUND, C. This is a suit in equity brought here on petition in error. There was a motion for a new trial in the court below, which was overruled. The errors assigned in this court are in substance the same as those set up in the motion for a new trial, but the ruling of the district court on that motion is not assigned as error. Under the settled practice of this court, we cannot review them. James v. Higginbotham, 60 Neb. 203, 82 N. W. 625; Gandy v. Cummins, 89 N. W. 777.

We recommend that the judgment be affirmed.

BARNES and OLDHAM, CC., concur.

PER CURIAM. The conclusion reached by the commissioners is approved, and, it