23. A conversation, fifteen or twenty minutes after the execution of a will, between the testator and a subscribing witness, held not admissible as part of the res gestae. Davidson v. Davidson, 2 Unoff. 510; 96 N. W. R. 409.

24. The jury are entitled to know all the circumstances concerning the parties with reference to the property at the time of the transaction in order that they may judge which of them is telling the truth. Farmers' State Bank v. Yenney, Neb. -; 102 N. W. R. 617.

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114. Where a contract of sale has been reduced to writing, the presumption is that the writing contains the whole contract; and in the absence of fraud, mistake, or ambiguity in the contract itself, parol evidence is inadmissible to change or vary its terms. Nebraska L. & F. Co. v. Trauerman, Neb.; 98 N. W. R. 37. 115. Parol evidence can not be received for the purpose of changing, modifying, or explaining a clear, plain, and unambiguous written agreement. Agnew v. Montgomery, Neb.; 99 N. W. R. 820.

116. Verbal alteration of written contracts in material parts. 57 C. L. J. 403. 117. Where the controversy is between a party to a written contract and one who is neither a party nor a privy to it, the rule excluding parol evidence tending to vary, modify, or contradict the writing does not apply. First Natl. Bank v. Tolerton, Unoff.; 97 N. W. R. 248.

118. If a written agreement is incomplete upon its face, parol evidence not in conflict therewith is admissible to supply its deficiencies. Bell v. Wiltson, Unoff. -; 98 N. W. R. 1049.

119. It is a well-settled principle that a written contract, not required by the statute of frauds to be in writing, may be subsequently changed by oral agreement, and such subsequent agreement need not rest upon any new consideration. Strahl v. Western Grocer Co., Unoff. -; 98 N. W. R. 1043.

120. A contract in writing may be created by letters between the parties, and may be sufficient, though the same papers are not signed by both. Such a contract may be changed by parol agreement as to those provisions not required to be in writing. David Bradiey v. Bower, Unoff.; 99 N. W. R. 490.

121. Where a written contract is relied upon by both parties to an action, it will be literally construed and enforced by the courts. When a party to such a contract elects to completely rescind the same and returns the property before payment, be

124. In the absence of fraud or imposition, persons of mature years and ordinary intelligence and education are presumed to have read the contracts executed by them, or to have otherwise made themselves acquainted with their contents. David Bradley & Co. v. Basta, Neb. -; 98 N. W. R. 697.

125. In an action for breach of a contract, which consists of reciprocal promises to be concurrently performed, the plaintiff must allege and prove performance, a tender of performance, or facts excusing performance on his part, to entitle him to recover. The law does not require a formal tender where it appears that if made it would have been futile. Lapham v. Bossemeyer, Unoff.; 98 N. W. R. 699.

132. The validity of a contract is not determined by its formal incidents, but by the nature of the transaction and the intention of the parties. A void contract is not made valid by being sued in a foreign jurisdiction. Corn Exch. Bank V. Jansen, Neb. -; 97 N. W. R. 814.

133. Where a person has employed another at an agreed price for a certain time and the employment is continued after the expiration of the time without a new agreement, the presumption is that the old compensation is to be paid; and a partial change in the work performed does not prove a different intention. Leidigh v. Keever, Unoff. —; 97 N.

8. A witness who has made a special study of penmanship for 25 years and a comparison of signatures is qualified as a handwriting expert. Heffernan v. O'Neill, 1 Unoff. 363; 96 N. W. R. 244.

9. Before the contents of a lost letter can be introduced in evidence, there must be testimony of its loss, and also testimony tending to prove the handwriting, or that it came from the alleged writer or his authorized agent, or was received in due course of mail in answer to letters previously mailed to the address of the alleged writer. Whitwell v. Johnson, 2 Unoff. 66; 96 N. W. R. 272.

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18. An accountant who has made an examination of books of account may testify as to the result of his computation therefrom, but not as to mere inferences. Mendel v. Boyd, - Neb.; 99 N. W. R. 493.

19. Where a settlement is entered into between two parties in reliance on the accuracy of books of accounts kept by one of the parties, and it subsequently appears that said books were incorrectly kept, such settlement will be set aside. Leidigh v. Keever, 2 Unoff. 343; 96 N. W. R. 106.

50. Every presumption is in favor of the proceedings of the court, and a mere recital made by the clerk, not required by statute or rule of practice, can not overcome such presumption. Phoenix

Mut. Life Ins. Co. v. Sparks, 2 Unoff. 215; 96 N. W. R. 214.

51. There is a well-marked distinction between a judgment in which there has been no service of summons, and one in which there has been an irregular service. In the former the judgment may be collaterally impeached, but in the latter the defect is waived unless directly assailed. Muchmore v. Guest, 2 Unoff. 127; 96 N. W. R. 194.

52. Where the plaintiff is seeking affirmatively to enforce a void judgment, one who merely resists is not governed by the rule requiring a party seeking relief against such judgment to show a meritorious defense. Baldwin v. Burt, 2 Unoff. 377-83; 96 N. W. R. 401.

53. A judgment is extinguished when it is paid by one who is primarily liable for its satisfaction, and it can not after such payment be kept alive by assignment to a third person or corporation. Ebel v. Stringer, Neb.; 102 N. W. R. 466.

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26. A judgment founded on a service which fails to reach the party defendant is absolutely void. Baldwin v. Burt, 2 Unoff. 377-83; 96 N. W. R. 401.

27. A party is not entitled to relief against a judgment at law unless he both pleads and proves a defense thereto upon the merits, and that he had no notice or knowledge of the pendency of the action at law in time to make his defense and has not been negligent. Dorwart v. Troyer, 2 Unoff. 22; 96 N. W. R. 116. force July 1.

dice, such defendant ceases to be a party to the record, and the effect of the dismissal is to leave such defendant in the same position as if he had never been a party to the action. If before such dismissal there had been a decree upon some issue made by the pleadings, which did not fix or determine the liability of

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30. An affidavit alleging the existence of a judgment, that it is unpaid and has become dormant, gives the court jurisdiction to make a conditional order and upon proper service and default to make the revivor absolute. Five years' lapse of time does not deprive the judgment of all vitality. The fact that a transcript of a judgment in justice court was filed in the office of the district court after the judgment had become dormant gives the district court jurisdiction to revive it. Furer v. Holmes, Neb.; 102 N. W. R. 764.

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19. The beginning of a creditor's action gives a specific lien upon the property which it is sought to reach. It is of the nature of an equitable execution, and it is unnecessary to issue a legal execution upon the judgment during the pendency of the creditor's action in order to prevent the judgment from becoming dormant so far as that specific property is concerned. Flint v. Chaloupka, Neb. 99 N. W. R. 825. Coulson v. Saltsman, Neb. -; 98 N. W. R. 1055.

20. The mere aliowance of a claim against an insolvent estate does not operate as a judgment which will become dormant in five years. Sharp v. Citizens' Bank, Neb. - 98 N. W. R. 50.

will be received. The appraisers are by statute a summary tribunal to fix such price, and their action, when duly taken under the statute, can be impeached for fraud alone. Such action of the appraisers does not deprive the court of any of its equity power to set aside a sale or to require that such sale be for an adequate price. Pearson v. Badger Lum. Co., 2 Unoff. 251; 96 N. W. R. 493.

59. The appraisement is conclusive, unless set aside because the appraisers were not legally qualified or acted fraudulently. Wolcott v. Henninger, 1 Unoff. 552; 96 N. W. R. 612.

60. A deputy sheriff may conduct the proceedings under an order of sale. Doughty v. Hubbell, 1 Unoff. 709; 96 N. W. R. 632.

61. It is the settled law of this state that appraisers need not be upon the land at the time they make the appraisement, provided they are familiar with the premises. Crook v. Moore, - Unoff. -; 98

N. W. R. 713.

62. Notice of the appraisement or of the time thereof is not necessary. Doughty v. Hubbell, 1 Unoff. 709; 96 N. W. R. 632.

63. A certificate that appraisers were sworn by the sheriff by a deputy held to sufficiently indicate that the deputy performed such service. National Life Ins. Co. v. Crandall, 2 Unoff. 335; 96 N. W. R. 624.

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42. Taxes due should be deducted from the appraised value of the real estate as a lien superior to that of the mortgage foreclosed. Mutual Ben. Co. v. Siefken, 1 Unoff. 860; 96 N. W. R. 603.

43. Where an apparent tax lien not included in a decree has been deducted from the appraised value of the debtor's interest, and the purchaser takes advantage of the deduction, he will be presumed to have agreed to pay such taxes. Eddy et al. v. City of Omaha, - Neb. 101 N. W. R. 25.

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31. A rule requiring a bidder to put up $50 as a guaranty of good faith before the sheriff accepts his bid and makes a return is reasonable. Michigan Mut. Life Ins. Co. v. Klatt, Unoff. -; 98 N. W. R.

436.

32. The sheriff making a judicial sale of real property under a decree of forelosure 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. Before a plaintiff in a fore

38. It is not essential that the notice of sale should state the amount due on the decree. Gallentine v. Cummings, - Unoff.; 96 N. W. R. 178.

39. The fact that a paper is an exponent of socialistic doctrines does not render unlawful a publication of notice in it. The fact that the return shows a publication in the Worker's Gazette, and the publisher's affidavit shows a publication in the Tri-City Worker's Gazette, is not fatal. Michigan Mut. Life Ins. Co. v. Klatt, Unoff.; 98 N. W. R. 436.

40. Where the return with the affidavit of the publisher showing due publication was not filed until after the sale, held not prejudicial. Nash v. Wilkinson, 2 Unoff. 228; 96 N. W. R. 623.