143. To abate a suit because of the pendency of another action it must appear that the subject matter is so far identical that a recovery in one action would bar a recovery in the other. Metcalf v. Bockoven, 1 Unoff. 822; 96 N. W. R. 406.

144. The plea nil debet, under our system, puts in issue to fact, and can not be regarded as a defense. Bankers' Union v. Favalora, - Neb. -; 102 N. W. R. 1013.

145. In case the allegatiofis of an answer are inconsistent the proper remedy is by motion to require an election; unless such a motion is made the objection is waived. McCormick v. Hiatt, Unoff. -; 95 N. W. R. 627.

146. When an estoppel is relied on it must be pleaded. Carnahan v. Brewster, 2 Unoff. 366; 96 N. W. R. 590.

147. One who is entitled to a choice of remedies, and takes such action as in law amounts to an election, is by such election precluded from pursuing the other remedy; but a mistaken and unsuccessful attempt to do so will not annul the former election nor bar the right to pursue the remedy first selected. Chicago, B. & Q. R. Co. v. Olson, Neb. -; 97 N. W. R. 831.

149. Under the facts stated, held that the first suit was not a bar to the second suit. Linton v. Cathers, Neb.

-; 97

N. W. R. 800. 150. A judgment in rem. is binding and conclusive on all persons as to every matter necessarily involved in an adjudication upon the status of a person or thing which is the subject matter of a proceeding; but in collateral matters it is binding only upon those who actually litigated such matters, and their privies. Privity does not arise from mere relationship by blood or affinity, nor because two parties may have an interest in the same subject matter of litigation. It implies a relationship by succession or representation. Sorensen v. Sorensen, -; 98 N. W. R. 837.

Unoff.

151. Where there is nothing in the record to show that the question was not heard upon its merits when previously before the court, the decision there ren

dered is final.

Neb.

Oakes v. Ziemer, -; 98 N. W. R. 443. 151a. Issues of law definitely decided on error or appeal can not be relitigated in the district court in another trial. Curtis v. Zutavern, Neb.; 102 N. W. R. 77. 152. Where upon appeal of a suit in equity the decree of the trial court in favor of the plaintiff is reversed, and the cause remanded for further proceedings upon amended pleadings, nothing has become res adjudicata, or the "law of the case" binding on the trial court except that the pleadings and evidence on the first appeal did not authorize the decree. Johnson v. Sherman Co. Irrigation Co., Neb. 98 N. W. R. 1096.

153. A judgment establishing the inval. idity of an attempted election of an officer in 1899 does not render res judicata between the same varties the power to make such election in 1901. State ex rel. v. Moores, Neb. 96 N. W. R. 1011. 154. A judgment of a court of compe tent jurisdiction upon a qu stion directly involved in one suit is concisive as to that question in another suit between the same parties. Schlemme v. Omaha Gaz Mfg. Co., Unoff.; 96 N. W. R. 644. 155. Matters expressly or by dis.inct and necessary implication adjudicated at a former hearing will not be considered again in the same case. Edney v. Baum. Neb.; 97 N. W. R. 252.

156. The precise question decided by the supreme court upon appeal or error can not be relitigated upon a retrial of the same case in the district court. Supreme Court of Honor v. Tracy, Neb.; 101 N. W. R. 1021.

157. There is no exception to the rule that in a question of practice determined by the supreme court and followed by the parties in a second trial the first decision is the law of the case. Williams v. Miles, Neb. -; 102 N. W. R. 482.

-

158. An action in replevin held to merely determine the right of possession and the value of the defendant's special interest in the property. Skow v. Locke, Neb. -; 101 N. W. R. 340.

159. A ruling made upon a motion to dissolve an attachment is not res judicata of the facts involved therein as against one who, though a party to the proceeding at the time of the ruling, is dismissed therefrom by the final judgment. Fred Krug Co. v. Healey, Neb. -; 101 N. W. R. 329.

160. Where the supreme court has declared as a matter of law that a judgment of the district court is valid and can not be collaterally attacked, such holding will be treated as the law of the case in all subsequent proceedings. A final judgment rendered on a demurrer to a petition in equity to obtain a new trial

19. Whenever one might waive a tort and sue in assumpsit at common law, he may maintain a set-off under the code against any claim arising out of contract. Staunchfield v. Jeutter, Unoff. -; 96 N. W. R. 643.

1110

1. The appointment of a guardian ad litem is not a mere matter of form, nor are his duties merely perfunctory. He should prepare and conduct the defense of his wards with the same care and skill as though acting under a retainer. Boden v. Mier, Neb. -; 98 N. W. R. 701.

1111

38. The reply should show specifically what allegations of the answer are denied, but if a reply denies "each and every allegation of new matter" and is not assailed by motion it is good after verdict. Western Mat. Co. v. Potter, Unoff. —; 95 N. W. R. 841.

39. The plaintiff can recover only on the cause of action stated in his petition. It is not the province of a reply to introduce a new cause of action. Kearney County Bank v. Zimmerman,

; 99 N. W. R. 524.

Unoff.

40. A failure to state a cause of action in the petition can not be cured by averments in the reply. Covey v. Henry, Neb.; 98 N. W. R. 434.

41. It is not allowable to plead new matter in a reply for the purpose of bringing forward a new cause of action not charged in the petition, or to aid the averments of the petition. Kliment v. Torpin Co., Unoff. ; 97 N. W. R. 587.

42. Where an answer pleads a failure to give notice, and a reply pleads a waiver and estoppel or matter to avoid the effect of failure to give notice, the allegation that no notice was given must be treated as admitted. Western Acc. Assn. v. Tomson, Neb. -; 101 N. W. R. 341.

1112

18. The statutory time in which to frame the issues may be waived by the parties, and coming to trial without objections will be deemed a waiver. Darrah v. Juel, 1 Unoff. 834; 96 N. W. R. 166.

19. Where a party is made a defendant in an action, and is duly served with process, he is charged with notice of whatever answer any of his codefendants may file only when such answer is filed within the time required by law. Koehler v. Reed, 1 Unoff. 836; 96 N. W. R. 380.

1123

29. In an action at law a prayer for equitable relief is of no avail unless the

petition states facts which will authorize the court to grant such relief. Emanuel v. Barnard, Neb.; 99 N. W. R. 666. 30. A prayer for general relief, coupled with one for the appointment of a receiver only, will not be considered as a prayer for relief other than such appointment, unless the petition states a good cause of action for other relief. Mann v. Neb. German-Amer. Inv. Co., N. W. R. 600.

-; 97 31. A question of whether a petition states a cause of action or discloses grounds sufficient for the granting of equitable relief may be raised at any stage of the proceedings in the appellate court, up to and including the filing of the motion for a rehearing. Vila v. Grand Island Elec. Co., Neb. -; 97 N. W. R. 613.

14. Where a settlement is made based upon books of accounts which afterwards proved to have been incorrect, the settlement will be vacated though no intentional fraud is shown. Leidigh v. Keever, 2 Unoff. 343; 96 N. W. R. 106.

15. In stating an account, as in making any other agreement, the minds of the parties must meet, and the transaction must be understood by the parties as a final adjustment of the respective demands between them and the amount then due. Haish v. Dillon, Neb. W. R. 818.

1125

-; 98 N.

21. Publication of libelous articles in several issues of a paper discussed. Bee Pub. Co. v. Shields, Neb.; 99 N. W. R. 822.

22. One who puts a libel in circulation is liable for any subsequent publications which are the natural consequence of his act. Schmuck v. Hill, 2 Unoff. 79; 96 N. W. R. 158.

23. Slander & Libel-Allegation in pleadings privileged. 52 C. L. J. 479.

24. Where matters alleged to be libelous are privileged, the burden of proving that they were published with malice is on the plaintiff. The doctrine of qualified privilege applicable to communications in a newspaper regarding a candidate for public office does not extend to statements injurious to reputation or character, if such statements are false in fact. The law implies malice from false statements of dishonorable or disgraceful matters as facts which are given publicity through a newspaper. To recover actual damage from a newspaper it is not necessary to prove malicious motives. Mertens v. Bee Pub. Co., Unoff.; 99 N. W. R. 847.

1132

11. Where the answer alleged that the article was not published of or concerning the plaintiff, and that it was true, the allegations must be construed so as to be consistent, and evidence that the charges contained in such article were true of the plaintiff was properly excluded. Williams v. Fuller, Neb. -; 97 N. W. R. 246.

1138

20. There is no variance between an allegation on a verbal contract and an unsigned memorandum of such contract alleged to have been made by the party charged at the time the contract was entered into because such unsigned memorandum is not a written contract. Brown v. Silver, 2 Unoff. 164; 96 N. W. R. 281..

1144

93. After the issues are made up the right to amend the pleadings rests in the sound judicial discretion of the trial judge, subject to review for an abuse of discretion. Southern Pine Lum. Co. v. Fries, 1 Unoff. 691; 96 N. W. R. 71.

94. It is not error for the court in a proper case to allow an answer to be amended after a demurrer thereto had been overruled where objection was made on the trial to the introduction of evidence, provided opportunity is given the other party to produce additional proof. Dickenson v. Columbus Bank, - Neb. —; 98 N. W. R. 813.

95. The court should not refuse an application to amend an answer in a formal matter during the trial. Ward v. Davis, - Unoff. —; 97 N. W. R. 437.

96. When necessary to a proper determination of the cause it is not error to permit an amendment to a pleading after trial and reopen the case for a trial of the issues tendered by such amendment. Brown v. Brown, Neb.; 98 N. W. R. 718.

97. The order of the district court allowing the amendment of a pleading during the trial is only reviewable for an abuse of discretion. Nebraska L. & F. Co. v. Trauerman, Neb.; 98 N. W. R. 37.

99. An amendment of a petition in the case stated, held not to be the commencement of a new action within the meaning of the statute of limitations. Gourley v. Prokop, Unoff.; 99 N. W. R. 243; 100 N. W. R. 949.

100. An amended petition which is no more than a restatement of the gravamen of the charge in the former pleading is not a departure, although the petition sounded in tort, and the amendment avers a contract liability only. Shoemaker v. Commercial Assur. Co., Neb. ; 101 N, W. R. 335.

-

42. A pledgee does not forfeit his lien by unsuccessfully contending that the equity of redemption had been extinguished by contract or by a sale under his right as a pledgee. Where personal property is pledged to secure the payment of a debt the pledgor can not recover the property by a replevin without paying or tendering the whole amount of the debt and keeping good the tender. Where the amount of a debt is not in dispute the value of a tender is not destroyed because coupled with the demand for the return of the property, but must be kept good, though on the same condition; but where the amount of the debt is in dispute a tender, to be good, must be without condition. Wilkins v. Redding, Neb. ; 97 N. W. R. 238.

43. An action for the conversion of chattels and one for the possession thereof are not inconsistent remedies. Moss v. Neb.; 97 N. W. R. 1031.

Marks,

1153

56. Quaere. Can one in peaceful possession of personal property, but with no stronger title, maintain replevin against a trespasser? Nelson v. City of Beatrice, 2 Unoff. 47; 96 N. W. R. 288.

of

57. Recent decisions on questions ownership and right of possession in actions of replevin collated. 52 C..L. J. 212. 1160

8. Exceptions to the sureties must be taken within twenty-four hours from the time the undertaking is given. Such period begins on the expiration of the twenty-four hours from the taking of the property, though the undertaking may have been given before the expiration of that time. The defendant is not entitled to the whole of the day after that on which the undertaking is given in which to except thereto. Barton v. Shull, Neb.; 97 N. W. R. 292.

9. Where no exception is taken as to the time fixed, all objections as to the

1164

10. A general and special verdict taken together, held to support a judgment for plaintiff and to fix his special property interests. Muller v. Parcel, Neb. -; 99 N. W. R. 684.

1165

15. This section does not turn the right to recover damages into an action of trover; to recover, unlawful detention at the commencement of the action must be shown. Wilkins v. Redding, Neb.; 97 N. W. R. 238.

1171

41. The intent with which the act complained of is committed is an essential part of the charge, and its omission from the affidavit is fatal. American Exch. Bank v. Puckett, Unoff. -; 95 N. W. R. 796.

42. A judgment may be levied upon land which the attachment debtor has transferred, as is alleged fraudulently, and the lien thereby acquired enforced in a proper proceeding. Coulson v. Galtsman, 1 Unoff. 502; 96 N. W. R. 349.

43. One who has possession of personal property, claiming a lien thereon, may maintain an action for conversion against one who wrongfully attaches the property. It is not necessary in such case to set out in the petition the particulars of his lien. Fred Krug Co. v. Healey, Neb. -; 101 N. W. R. 329.