verbatim, *and said reporter or his deputy shall not be allowed to practice law in the district court within and for the district he is appointed during the tenure of his office as such stenographer.

All after* added 1889, p. 421.

1065. The said reporter shall take the oath required to be taken by judicial officers, shall hold his office during the pleasure of the district judge, and receive an annual salary of $1,500, to be paid by the state as the salary of other officers is paid.

1066. [Duties.]-The said reporter shall attend all terms of the district court. held within and for the district for which he is appointed, and shall make a stenographic report of all oral proceedings had in such court, including the testimony of witnesses, with the questions to them, verbatim, and any further proceedings or matter when directed by the presiding judge so to do; but the parties may, with the consent of the judge, waive the recording by such reporter of any part of the proceedings herein required to be taken; this shall not include arguments to the jury. And whenever, during the progress of the cause, any question arises as to the admissibility or rejection of evidence or any other matter causing an argument to the court, such argument shall not be recorded by the reporter, but he shall briefly note the objection made and the ruling of the court thereon, and any exceptions taken by either party to such ruling.

1067. The said reporter shall keep and maintain an office within the district for which he shall be appointed, and shall keep and preserve in his said office all stenographic reports made by him as in this subdivision required. Such records shall be the property of the state, and upon the termination of his office the said reporter shall deliver the same to his successor in office.

1068. It shall be the duty of such reporter to furnish, on the application of the district attorney or any party to a suit in which a stenographic record of proceedings has been made, a long-hand copy of the proceedings so recorded, or any part thereof, for which he shall be entitled to receive, in addition to his salary, a fee of five cents per hundred words, to be paid by the party requesting the same, except where such copy is required by the district attorney on the part of the state, in which case the reporter shall furnish such copy without the payment of any fee; Provided also, That in all criminal cases wherein, after conviction, the defendant shall make an affidavit that he is unable, by reason of his poverty, to pay for such copy, the court or judge thereof may, by order endorsed on such affidavit, direct the reporter to make such copy without the payment of any fee. It shall be the duty of the reporter to deliver such long-hand copy of the proceedings therein within forty days from the final adjournment of the term at which the judgment is rendered, to the party demanding it.

If a party, without his fault, is deprived of his bill of exceptions by reason of the reporter's failure to prepare a transcript of the testimony in time, a new trial will be granted. 10, 451 (6 N. W., 762). One convicted of felony must pay for his transcript. 8, 24.

Secs. 1069 and 1070. "An act to permit the appointment of deputy stenographic reporters in the several judicial districts of the state of Nebraska." 1883, p. 319. In force June 1.

1069. The stenographic reporters within and for each of the judicial districts of this state may severally, each with the consent of the judge of the district in which he acts, appoint as deputy a person well skilled in the art of stenography, and capable of reporting the oral proceedings had in court verbatim.

1070. A deputy reporter so appointed shall take the oath required to be taken by judicial officers, and may perform the duties of the reporter as provided in the Compiled Statutes of Nebraska, chapter 19, "Courts" [ch. 11], and the reporters of the court shall pay for the services of such deputy.

Sec. 1071 to 1075. 76. In force April 1.

"An act to amend section 58 of chapter 14, General Statutes."

1875, p.

1071. It shall be the duty of the judges of the several district courts, in all cases, both civil and criminal, to reduce their charge or instructions to the jury to writing, before giving the same to the jury, unless the so giving of the same is waived by the counsel in the case in open court, and so entered in the record of said case; and either party may request instructions to the jury on points of law, which shall be given or refused by the court. All instructions asked shall be in writing.

This requirement can be waived by the parties. 18, 559 (26 N. W., 368). Instructions should be given with reference to testimony of each case, and attention of jury directed to question at issue. 5, 189. Instruction asked which states the law correctly should be given; should be clear and definite and not tend to prejudice. 6, 321. Has no reference to rulings on points which arise during progress of trial. 27, 117 (42 N. W., 898). Oral instructions must be reduced to writing and filed with clerk before submission to jury. 23, 654 (37 N. W., 590). Instructions not applicable to issues made by pleadings should be refused. 13, 428 (14 N. W., 164); 6, 159; 6, 340; 6, 498; 1, 312. If one part of instruction misstates the law it will not be cured by another paragraph which states it correctly. 13, 378 (14 N. W., 171). When an instruction has a tendency to confuse or mislead a jury, it is ground for a new trial. 12, 177 (10 N. W., 700). Instructions not warranted by the evidence, held erroneous. 11, 275 (9 N. W., 86). Undue prominence should not be given to one branch or item of evidence, by particular mention, to the disparagement of the rest. 11, 213 (7 N. W., 853). The assumption by the court of a fact of which there is no evidence, is error. 11, 114 (7 N. W., 850). When the evidence produced by plaintiff would not support a verdict in his favor, a nonsuit is proper. 11, 186 (7 N. W., 737). Where there is no evidence in favor of plaintiff, court may direct jury to find for defendant. 11, 201 (8 N. W., 431). An instruction which in effect withdraws a case from the jury, can not be sustained where there is testimony that should be submitted to them. 11, 231 (9 N. W., 58). An instruction, though correct as an abstract proposition of law, which submits to the jury a question not in issue, or which has a tendency to mislead, should not be given. 13, 314 (14 N. W., 406). Whether the facts be disputed or undisputed, if different minds may honestly draw different conclusions from them, the case is one for the jury. 11, 332 (9 N. W., 50). Instruction must not assume the possible existence of a state of facts which the jury has no right to find from the evidence. Instruction must not be ambiguous and uncertain and liable to lead jury astray. 11, 253 (9 N. W., 55). Where, under the issue made by the pleadings, proof of a material fact devolves upon the defendant, and no testimony is offered on either side, it is error for the court to instruct the jury to find for defendant. 11, 394 (9 N. W., 558). Not error for a court to refuse to instruct upon the matter of a prisoner's sanity when there is no evidence tending to show he is insane. 11, 410 (9 N. W., 552). Judge should not give undue importance to rights of one party; should avoid expressing his opinion as to the effect of the evidence, and should not assume that there is a conflict in the evidence when there is none. 12, 374 (11 N. W., 462). An erroneous charge will not reverse judgment when made on a point entirely out of case made by evidence, and the verdict can be supported by the proof made, but where instructions not called for by the evidence are given, and which are misleading to the jury, judgment will be reversed. 1, 319. It is error to submit the question of materiality to a jury. 5, 225. Instructions erroneous, too general. 22, 492 (35 N. W., 216). Instructions are a part of the record and need not be preserved by bill of exceptions. 15, 23 (16 N. W., 833); 15, 129 (16 N. W., 762). If jury not properly instructed on law, verdict will be set aside. 22, 815 (36 N. W., 465). Instructions must be construed together. 22, 607 (35 N. W., 871); 19, 71 (26 N. W., 593). It is error to give instructions without filing them with the clerk, or marking them "given" or "refused," but such error is waived if not excepted to at the time. 10, 443 (6 N. W., 764); 11, 459 (9 N. W., 638). Under indictment for murder. 8, 89. Criminal trial-insanity. 4, 470. In case of felony, if instruction had a tendency to prejudice the minds of the jury a new trial will be granted, though no exception taken. 4, 530. No exception taken, no foundation for a review. 7, 222. See 2, 334; 5, 214; 20, 386; 21, 615 (33 N. W., 209).

1072. If the court refuse a written instruction, as demanded, but give the same with a modification, which the court may do, such modification shall not be by interlineation or erasure, but shall be well defined and shall follow some such characterizing words as "changed thus," which words shall themselves indicate that the same was refused as demanded.

Instructions need not be in the very words requested, if given in other words as favorable. 1,120. Not error to refuse instructions substantially the same as those given. 5, 418; 4, 554.

1073. The court must read over all the instructions which it intends to

give, and none others, to the jury, and must announce them as given, and shall announce as refused, without reading to the jury, all those which are refused, and must write the words "given," or "refused," as the case may be, on the margin of each instruction.

Error to give instructions which tend to confuse the jury. 8, 431. Instruction marked "Asked for by defendant; refused," was read to the iury and allowed to be taken by them. Held, not reversible error. 14, 341 (15 N. W., 737). Failure to read, reversible error. 27, 388 (43 N. W., 123). Omission of word "given " from margin held not to vitiate instruction. 27, 170 (42 N. W., 1054).

1074. If the giving or refusal be excepted to, the same may be without any stated reason therefor, and all instructions demanded, as well as all instructions given to the jury by the court on its own motion, must be plainly and legibly written in consecutively numbered paragraphs, and filed by the clerk before being read to the jury by the court; and such instructions shall be preserved as part of the record of the cause in which they were given.

Right to except to instructions waived unless taken at time of giving of instructions. 3, 353; 6, 284. General exception insufficient. 24, 300 (38 N. W., 780). If not obiected to, right to have instructions numbered will be waived. 4, 288.

1075. No oral explanation of any instruction authorized by the preceding sections shall, in any case, be allowed, and any instruction or charge, or any portion of a charge or instructions, given to the jury by the court and not reduced to writing, as aforesaid, or a neglect or refusal on the part of the court to perform any duty enjoined by the preceding sections, shall be error in the trial of the case, and sufficient cause for the reversal of the judgment rendered therein.

This does not include oral explanations reduced to writing and filed. 25, 591 (41 N. W., 399).

County Courts.

Secs. 1076 to 1110. "An act concerning the organization, powers, and jurisdiction of probate courts." 1873. In force March 3. G. S., 263.

1076. That there is hereby established, in each organized county in this state, a probate court, which shall be held at the county seat by the probate judge of such county, and shall be a court of record. Such court shall be deemed to be always open, and any cause, matter, or proceeding may be proceeded with therein at any time after the giving of notice or service of process in the mode prescribed by law. And the proceedings and determinations of such court heretofore had or made in any cause, matter, or proceeding, at any time other than at a regular term of such court, as heretofore prescribed by law, shall be as valid and effectual, for all purposes, as if had or made at such regular term.

1077. County judges in their respective counties shall have and exercise the ordinary powers and jurisdiction of a justice of the peace, and shall in civil cases have concurrent jurisdiction with the district court, in all civil cases in any sum not exceeding one thousand dollars, exclusive of costs, and in actions of replevin where the appraised value of the property does not exceed that sum, and the provisions of the code of civil procedure, relative to justices of the peace, shall, where no specified provision is made by this subdivision, apply to the proceedings in all civil actions prosecuted before said county court; Provided, That county courts shall not have jurisdiction: I. In any action for malicious prosecution. II. In any action against officers for misconduct in office, except where like proceedings can be had before justices of the peace. III. In actions for slander and libel. IV. In actions upon contracts for the sale of real estate. V. In any matter wherein the title or boundaries of land may be in dispute, nor to order or decree the sale or partition of real estate.

Word probate changed to county, and limit of jurisdiction raised to $1,000, 1883, p. 220.

County court formerly had jurisdiction in civil cases only to the amount of $500; and where court is without jurisdiction of the subject-matter, parties cannot confer jurisdiction by consent. 14, 518 (16 N. W., 845). County courts have jurisdiction to recover damages for assault and battery where amount sought to be recovered does not exceed $500 ($1,000 now). 12,474 (11 N. W., 730. County judges shall have the ordinary jurisdiction of justice of the peace. Judgment can only be set aside when it was obtained by fraud, partiality, or undue means. 6, 302. In cases involving over $200, county court has the power of district court; under $200, only those of a justice. 15, 12 (16 N. W., 758). A cause of action cannot on appeal to district court be so amended as to claim more than $1,000. 18, 639 (26 N. W., 464). No jurisdiction to set aside deed obtained by false representations. 27, 137 (42 N. W., 889.) County courts have no jurisdiction to naturalize foreigners. 7, 474.

1078. The courts of probate in their respective counties shall have exclusive jurisdiction of the probate of wills, the administration of estates of deceased persons, and the guardianship of minors, insane persons, and idiots; Provided, No judge of probate shall act in any case or matter where he is next of kin to the deceased, nor where he is legatee or devisee under a will, nor where he is named as executor or trustee in a will, or is one of the subscribing witnesses thereto, nor where he is related to any party in interest in any case before him, by consanguinity or affinity, or has such an interest therein as would exclude him from acting as a juror in such case or matter, nor where he has acted as attorney or counsel in any case or matter before him.

This disqualification does not apply to such acts as filing papers, etc. 17, 523 (23 N. W., 524).

1073. They shall have power- I. To hear and determine claims and set-offs in the matter of estates of deceased persons. II. To hear and determine questions of applications for, and to grant and issue letters of administration, testamentary, and of guardianship, and revoke the same. III. To take the probate of wills. IV. To cause to be taken, to receive, file, and record all inventories, sale, and appraisement bills of the estates of deceased persons. V. To require executors, administrators, and guardians to exhibit and settle their accounts, and account for the estates and property that have come into their possession as such. VI. To appoint commissioners to partition personal estate. VII. To authorize guardians to sell and convey or mortgage the personal estate of their wards, to provide for their wants, education, and support.

1080. If it shall appear to any such court, by the application, under oath, of any party interested in the bond of any executor, administrator, or guardian appointed by such court, that there is reasonable doubt as to the solvency or sufficiency of the securities upon any such bond, such court shall cause such executor, administrator, or guardian to be ordered to show cause why he shall not execute a new bond in the premises, with surety to be approved by such court, as provided by law.

1081. If, upon the hearing of any such matter, the court shall require a new bond with sureties, and such executor, administrator, or guardian shall fail to comply with the order of the court, he shall be removed from his said trust, and his letters revoked, and another executor, administrator, or guardian, as the case may be, appointed in his place.

1082. It shall be the duty of the probate judge, in each county, to hold a regular term of the probate court at his office at the county seat, commencing at nine o'clock A. M. on the first Monday of each calendar month, for the trial of such civil actions brought before such court as are not cognizable before a justice of the peace. Such regular term shall be deemed to be open without any formal adjournment thereof until the third Monday of the same month, when all causes not then finally determined shall be continued by such court to the next regular term; but such courts shall be deemed to be always open for the filing of papers and

issuance of process in civil actions, and for the purpose of taking and entering judgment by confession.

The third Monday is a term day. 10, 529 (7 N. W., 276). Statute directory-cases may be tried at any time by agreement of parties. 9, 394 (2 N. W., 739). Court may hear cases out of term time by agreement. 17, 696 (24, N. W., 389). And where court continued a case out of the term to a legal holiday it goes over to the next term. 17, 697 (24 N. W., 425). Not necessary to state that the court had been regularly adjourned from day to day until case finally disposed of. 5, 22. Sufficiency of judgment. 7, 479. Leave to amend pleadings in open court, notice to adversary not necessary. 8, 445.

1083. [Proceedings.]—In all cases commenced in said courts wherein the sum exceeds the jurisdiction of a justice of the peace, it shall be the duty of the county judge to issue a summons, returnable on the first day of the next term of said court, if there be ten days intervening between the issuance of the summons and the first day of the term, and if not, then to be made returnable on the first day of the next term thereafter, which summons shall be directed and delivered to the sheriff or any constable of said county, and the sheriff or constable shall serve the same upon the defendant as in other civil cases, at least ten days before the return day thereof. When the summons has not been served ten days before the first day of the term, the cause shall stand continued until the next regular term of said court, and shall then stand for trial, without further notice to the defendant.

Limit of jurisdiction formerly $100, 1883, p. 221. If amount claimed does not exceed $100 ($200 now), a summons should be issued and served same as before a justice of the peace. 12, 475 (11 N. W., 730). In granting new trial, county court is governed by same rule as a justice and must grant the same, if at all, within four days from the time of entering judgment. 12, 479 (11 N. W., 738).

1084. Action in replevin.-In all actions in replevin, the summons shall be in like form, and be returnable within the like time as in similar actions before justices of the peace, but if, upon a return of the writ, it appears that the appraised value of the property taken thereon exceeds the jurisdiction of a justice of the peace, and does not exceed the jurisdiction of the county court, such action shall stand continued, as of course, to the next regular term of said court, and shall then be disposed of as other causes during such term; but if it appears that the appraised value of the property in such action exceeds the jurisdiction of the county court, then such action, on the return of the writ, shall be forthwith certified to the district

court.

Amended 1883, p. 221. Summons should be returnable not more than twelve days from date 9, 108 (2 N. W., 227).

1085. Bill of Particulars. In all civil actions in the county court, where the amount claimed exceeds the jurisdiction of a justice of the peace, the plaintiff, his agent or attorney, shall, before the summons is issued therein, file in such court a petition, setting forth, in ordinary and concise language, his demands; and the defendant shall also, on or before the first day of the term at which the cause stands for trial, file in such court his answer containing any set-off or other defense he may have. Such petition shall be verified in like manner as a petition is required to be verified in the district court, and when so verified, no other or greater proof shall be required to entitle the plaintiff to judgment upon default than in actions in the district court.

Amended 1883, p. 222. Sufficiency of petition in county court. 18, 112 (24 N. W., 442). See 20, 506 (31 N. W., 74).

1086. Pleadings. In actions before said court, where the amount claimed exceeds the jurisdiction of a justice of the peace, motions and demurrers shall be allowed, and the rules of practice concerning pleadings and processes in the district court shall be applicable, so far as may be, to pleadings in the county court.

Amended 1883, p. 222. Leave to amend petition instanter, defendant not entitled to extension of time. 8, 445. County court has power to vacate and modify its own judgments during the term. 17, 50 (22 N. W., 71).