58 N. W. 709. From the briefs it would seem that the plaintiff considers that dissolution of the attachment was sought simply on the ground that the attached property belonged to the bank, and was attached as the property of Rice. The record does not support that theory. The ownership of the property was only incidentally involved, and the ruling on the motion does not necessarily adjudicate that question. The attachment was asked and issued against all defendants. There is nothing in the affidavit, writ, or return to indicate that the property was seized as that of one defendant, rather than the other. While the evidence shows that Rice had formerly held the legal title to at least a portion of the property, it also shows that he held it as trustee for the bank. Certainly, the receiver had a right to resist the attachment in so far as the bank's title was attacked.

No

The plaintiff insists that when the banking board approved the bond the bank became the property of the obligors, as did all its assets, and so subject to attachment; that Rice had absconded; that before leaving he had conveyed the attached property to persons named as trustees for creditors; that this was a prohibited general assignment, and was, consequently, fraudulent. It is apparent that the decision of the district court did not involve a decision of these issues, but went upon the ground that the property was not subject to attachment. The evidence, while on some points conflicting, tends to show that the Rices' bond was approved November 11, 1895, but that they straightway refused to take possession of the assets. The attachment was levied November 16th. vember 18th the board undertook to rescind its action, and applied for a receiver. Prior to November 11th, an examiner, by direction of the board, had taken possession of the bank and all its assets. He did not surrender possession to Rice, but retained possession for the board until the receiver qualified, when he delivered possession to him. Under the former banking act it was held that the assets of an insolvent bank were subject to attachment while in the hands of the banking board, and before a receiver was appointed, or the sheriff placed in custody. Arnold v. Weimer, 40 Neb. 216, 58 N. W. 709. After the decision of that case, and before the present arose, a new law went into effect (Comp. St. c. 8), section 24 of which gives authority to an examiner, when ordered by the board, to take possession of a bank, and "to hold and retain possession of all the money, rights, credits, assets, and property of any description belonging to such bank, as against any mesne or final process issued by any court against such bank, corporation, partnership, firm, or individual whose property has been taken possession of by such examiner, until the state banking board can receive and act on the report made by the examiner of said bank, and have a receiver

appointed, as provided in section 35 of this act." By this provision, when an examiner, duly authorized, takes possession, the assets pass into the custody of the state, and are no longer subject to attachment. Whether the bond became obligatory upon approval, whether the bank's assets thereby passed to the obligors, whether such result could be defeated by the obligors' refusing to take possession or by a subsequent rescission by the board of its approval of the bond, are questions which may, perhaps, arise on the trial of the main case, but do not affect the present motion. The property was in fact in the possession of the examiner, and under the protection of the statute. Although, perhaps, that possession ought to have terminated, it had not in fact done so. It could not be disregarded. Affirmed.

ATKINSON et al. v. MAY'S ESTATE. (Supreme Court of Nebraska. Dec. 8, 1898.) CONTEST OF WILL-ATTORNEY'S FEES.

The estate of a decedent is not liable to an aftorney for services rendered by him for and at the request of a legatee under decedent's will in a contest thereof.

(Syllabus by the Court.)

Error to district court, Lancaster county; Tibbets, Judge.

In the matter of the estate of Nancy Jennie May. From a rejection of the claim of Atkinson & Doty, they bring error. Affirmed.

John L. Doty, for plaintiffs in error. Reese & Gilkeson, for defendant in error.

RAGAN, C. Nancy Jennie May died in Lancaster county, leaving a paper purporting to be her last will and testament, in and by which she bequeathed $1,000 to the "African mission under Bishop Taylor's jurisdiction." This paper was presented to the county court of said county for probate, and its probate resisted. Bishop Taylor, or some one acting for him, employed Messrs. Atkinson & Doty, attorneys and counselors at law, of the Lancaster county bar, to assist in the litigation which ensued over the contest of this will. The county court admitted the will to probate, and the contestants appealed to the district court, where a judgment was rendered denying the will probate. Subsequently the county court appointed an administrator for the estate of Nancy Jennie May, and Atkinson & Doty filed in the county court a claim against the May estate for the services which they had rendered in the will contest proceedings. The county court disallowed its claim, and Atkinson & Doty appealed to the district court, which also rendered a judgment disallowing their claim; and they have filed a petition in error here to review this judgment of the district court. The judgment of the district court was right. The estate of a decedent is not liable to an

attorney for services rendered by him for and at the request of a legatee named in the decedent's will in a contest thereof. The judgment of the district court is affirmed.

FEIL v. KITCHEN BROS. HOTEL CO. (Supreme Court of Nebraska. Dec. 8, 1898.) INTOXICATING LIQUORS-LICENSE-NOTICE OF APPLICATION-PUBLICATION-NEWSPAPERS

-APPEAL-REVIEW,

1. One is a competent remonstrator against the granting of a liquor license on the ground that notice of the application for such license was not published in the newspaper having the largest circulation in the county, notwithstanding he is personally interested in the determination of the question.

2. Notice of an application for liquor license is required to be given, for two weeks prior to the hearing, in a newspaper published in the county, having the largest circulation therein, unless no newspaper is published in such county. Where a notice is inserted in a daily paper, it must be published daily for the period stated.

3. Whether several editions of a daily paper are separate and distinct publications is a question of fact, to be determined, in the first instance, by the license board.

4. Where the matter published in each of two editions of a daily paper is not substantially the same, and each edition has a different heading or name, and is sent to a different list of subscribers, notice of an application for liquor license is required to be inserted in but one edition thereof daily for the requisite length of time; and its circulation alone is to be considered in determining whether the proper newspaper was selected. Rosewater v. Pinzenscham. 57 N. W. 563, 38 Neb. 835, followed.

5. Though the notice should be inserted in the newspaper having the largest circulation, the publication will not be declared invalid if bad faith cannot be properly imputed to the applicant in making choice of the paper.

6. License board has no authority, by resolution or otherwise, to designate the newspaper in which the publication of notices of applications for license shall be made.

7. Findings of the trial court, when sustained by sufficient evidence, will not be disturbed on review.

(Syllabus by the Court.)

Error to district court, Douglas county; Fawcett, Dickenson, and Baker, Judges.

An application for a liquor license was presented by the Kitchen Bros. Hotel Company, and a remonstrance was filed by N. C. Feil. The remonstrance was overruled, and on appeal the district court affirmed the decision of the license board, and remonstrant brings error. Affirmed.

E. W. Simeral, for plaintiff in error. Hall & McCulloch, for defendant in error.

NORVAL, J. The Kitchen Bros. Hotel Company presented an application to the board of fire and police commissioners of the city of Omaha for license to sell intoxicating liquors in said city. Notice of the filing of the application was published in the Omaha Daily World-Herald; and, before the hearing, N. C. Feil filed with said board a protest or remonstrance against the issuance of the license upon the following

grounds: (1) Notice of the application was not published in the newspaper published in Douglas county having the largest bona fide circulation therein. (2) There is no legal newspaper printed or published in said county known as the Omaha Daily World-Herald, as set forth in the affidavit of publication attached to the notice. (3) Neither the Morning World-Herald nor the Evening WorldHerald has as large a bona fide circulation in Douglas county as the Omaha Evening Bee. (4) That the applicant did not publish the notice in good faith believing that the same was inserted in the newspaper having the largest circulation in the county. At the hearing be fore the board, the remonstrance was overruled, and a license was ordered issued as prayed. The remonstrator prosecuted an appeal from the decision to the district court, where the matter was heard before Judges Baker, Dickenson, and Fawcett, who made special findings of fact; among others, the following: (1) The contents of the Morning World-Herald and Evening World-Herald of the same date are not substantially the same, and they do not constitute one newspaper. (2) That the Omaha Evening Bee was a news paper published in Douglas county of the greatest circulation therein, and that the notice for the license was not inserted in the newspaper having the largest circulation in the county. (3) That applicant acted in good faith in making its choice of a newspaper in which to publish its said notice. Upon the strength of this last finding, the court affirmed the order and decision of the license board, Judge Dickenson dissenting from the first finding, all the judges concurring in the seeond, and Judge Fawcett dissenting from the last finding, as well as the judgment of affirmance based thereon.

It is argued in the brief of counsel for applicant that the remonstrator has no standing in court to object to the issuance of the liquor license, and the judgment should be affirmed. because the remonstrance is by N. C. Feil, manager of the Bee Publishing Company, and was not filed for the public good, but as a mere business proposition. The protest or remonstrance on its face shows that it was made by Mr. Feil as an individual, and not in any representative capacity whatever. It is a fact that was developed on the trial that remonstrator was the business manager of the corporation which publishes the Omaha Evening Bee and other newspapers, and that a favorable decision might inure to the benefit of the corporation of which he was the representative. But these considerations did not make Mr. Feil an incompetent remonstrator, or preclude him from demanding that applicant should comply with the plain require ments of law by publishing the notice of its application for a license in the newspaper published and having the largest circulation in Douglas county. The statute does not specify that disinterested persons alone shall be competent remonstrators against the grant

ing of license to sell intoxicating liquors; and this court has neither the inclination nor the power to interpolate into the statute a provision neither in express terms nor impliedly adopted by the lawmaking body. As we view the statute, any person, though interested, may protest against the granting of a liquor license, if sufficient cause or ground therefor exists. Whatever may have been the motive which induced or prompted Mr. Feil to take the step he did, there can be no doubt that he was not disqualified from doing

So.

The proof of the publication attached to the copy of the notice of the application states substantially that such notice was published the requisite period of time in the Omaha Daily World-Herald. One of the grounds of protest is that no such newspaper is published in Douglas county. The proofs adduced on the hearing before the board of fire and police commissioners disclose beyond the possibility of a doubt that no newspaper is published in Douglas county under the heading or name of "Omaha Daily World-Herald," but that said term is employed to designate the "Morning World-Herald" and "Evening World-Herald," published at Omaha by the same corporation. Both publications are entered in the mails, and postage is paid thereon as the "Daily World-Herald." In view of these facts, suppose an indictment should be returned charging the accused with the publication of a certain libelous article in the "Omaha Daily World-Herald"; could a conviction be had by proof of the insertion of such article in the "Morning World-Herald" or "Evening WorldHerald," or both of them combined? Clearly not, since there would be a fatal variance between the averments and proofs. So, in the case at bar, there is a failure of evidence to establish that any newspaper is published in Douglas county under the particular heading or name stated in the proof of publication filed with the license board. But this fact alone did not devest such board of jurisdiction to grant a license to applicant herein, for the evidence is clear and undisputed that the notice in question appeared, for the length of time required by law, in the Morning World-Herald, and in the Evening World-Herald as well. If these publications constituted a single newspaper, having the largest circulation in Douglas county, the remonstrance was without merit, and must fail in its purpose.

Counsel for applicant insist that the Morning World-Herald and the Evening WorldHerald are the morning and evening editions of the same paper, and constitute a single newspaper. In Rosewater v. Pinzenscham, 38 Neb. 845, 57 N. W. 567, it was said: "Whether or not the several editions of a daily paper are separate and distinct publications is a question of fact to be determined from the proof, in the first instance, by the license board. If the matter published in each edition of a daily paper is not substan

tially the same, and each edition has a different heading or name, and is sent to different subscribers, it would be quite clear that the combined circulation of all cannot be counted, for the purpose of ascertaining the newspaper in which notices like the one in question should be published. All that the law requires is that the notice shall be published in the newspaper having the largest circulation in the county. If several editions of a daily paper in fact constitute but one paper, then the notice must be published in each of said editions. If each edition is a separate and distinct publication. a publication in one, if the same has the largest circulation in the county, will be sufficient." No reason has been suggested for departing from the doctrine above stated, and it will be adhered to at this time. It is conceded by counsel for applicant that the Morning World-Herald and the Evening World-Herald usually are not delivered to the same subscribers, and for the purposes of this case, that the circulation of the Omaha Evening Bee at the time of the trial exceeded that of either the Morning or Evening World-Herald. It requires no argument to show that publications claimed to be the two editions of the World-Herald are not published under the same heading or name, one being called the Morning World-Herald and the other the Evening World-Herald. It may be, as suggested in argument, that the words "Morning" and "Evening" are merely descriptive of the time of day the publications are made, but each word is none the less a portion of the name or heading of the publication.

A question quite analogous to the one we are considering was determined in Russell v. Gilson, 36 Minn. 366, 31 N. W. 692. The county board of Hennepin county designated the Minneapolis Tribune as the paper in which the delinquent tax list and notice should be inserted. The publication was made in the Minneapolis Weekly Tribune, which paper was published by the same company that issued the Minneapolis Daily Tribune. It was held there was no legal publication of the list and notice, the court saying: "In short, there was no paper of the name designated by the board, and the one in which the list and notice was published was not any paper designated by the resolution. It is immaterial that both papers were published by the same company. It is the newspaper, and not the publisher, that is required to be designated. Although a part of the name of each was common to both, yet the names of the two papers were just as different as if, for example, one had been called "The Minneapolis Commercial Tribune,' and the other "The Minneapolis North Star Tribune.'"

In the present case we do not wish to be understood as holding that the difference in the names Morning World-Herald and Evening World-Herald alone is sufficient to establish that they constitute two newspapers, and not merely two editions of the same paper. Anoth

er element is to be taken into consideration in determining the question in dispute, namely, are the contents of the Evening World-Herald and the Morning World-Herald substantially the same? The court below expressly found that the contents of these two publications, issued on the same day, or the editions of one newspaper, as claimed by counsel for applicant, are not substantially alike, and that such publications do not constitute a single newspaper. As already indicated, the court below likewise found that the Omaha Evening Bee, at the date of the hearing before the license board, had the largest circulation in Douglas county of any newspaper then published therein. This court is unanimous in the opinion that these findings are sustained by the proofs. It can serve no useful purpose to discuss the evidence, or to point out the particular portions thereof upon which we base our conclusion. The facts are perfectly familiar to both parties to this controversy, and it would unduly prolong this opinion, and that, too, without profit, to set out a synopsis of the testimony. We decline in this case, in obedience to the universal rule obtaining in this court, to disturb a finding based upon sufficient competent evidence.

There is another important inquiry which is presented by the record, and that is, did the Kitchen Bros. Hotel Company act in good faith in the selection of the newspaper in which the notice of the application for a license was inserted? If bad faith cannot be imputed to it in that regard, then, under the rule announced in Lambert v. Stevens, 29 Neb. 283, 45 N. W. 457, and Rosewater v. Pinzenscham, 38 Neb. 835, 57 N. W. 563, the license was properly granted. The record shows that, prior to the filing of the application for license, the board of fire and police commissioners of the city of Omaha adopted the following resolutions, which were spread upon the records of said board: "Resolved, that the liquor dealers are hereby advised that, under the law, they should publish their notices in the newspaper of largest circulation in Douglas county for two weeks, and that these publications should be completed before the expiration of their present licenses." "Resolved, that this board will abide by, and recognize, the decision of the board made upon the third day of January, 1896, wherein, after an investigation, it was found that the Daily World-Herald was the paper of the largest circulation in Douglas county, until the further order of this board." The adoption of the foregoing had some influence with the applicant herein in determining the newspaper in which the notice of its publication should be inserted. In Rosewater v. Pinzenscham, supra, we condemned, as being unauthorized, the practice of license boards designating the newspaper in which the publications of notices like the one before us should be made. We adhere to everything we then said upon the subject, and emphasize our disapproval of the adoption of the foregoing resolutions, as

tending to unduly influence liquor dealers, druggists, and saloon keepers in the publication of notices of their applications for liquor licenses. The evidence introduced to establish the good faith of the applicant herein is quite unsatisfactory, but we are all agreed that bad faith is not so clearly made out by the evidence as to justify us in disturbing the finding of the court below on that question. The judgment is accordingly affirmed.

COLUMBIA NAT. BANK ▼. GERMAN NAT. BANK.

(Supreme Court of Nebraska. Dec. 8, 1898.) EVIDENCE-TESTIMONY-APPEAL-BILL OF EXCEPTIONS-CERTIFICATE-BANK CHECK-TRANSFER OF DEPOSIT-ESTOPPEL.

1. "Testimony" and "evidence" are not synonymous terms; the latter is the generic term, and the former applicable to a species or kind of evidence.

2. If a bill of exceptions, which purports to contain all the evidence, is submitted to the adverse party for examination and amendment, and he returns it with an indorsement that he has no amendments to propose, it will be presumed to contain all the evidence. Cattle v. Haddox, 14 N. W. 803, 14 Neb. 59.

3. The use of the word "testimony" for "evidence," in the certificate of the trial judge in the allowance of a bill of exceptions, if the meaning is obvious, or it is clear that the latter is intended, will not render the document inoperative.

4. A check upon a bank by a depositor operates a transfer of its amount to the payee if on deposit at the time of presentation, and the payee or holder may, on refusal of payment, maintain a suit on the instrument for the recovery of its stated sum.

5. As against the holder of a check against an account of a depositor, the bank of deposit may not apply the amount of the account to the payment of the indebtedness of the depositor to the bank which is not yet due, although the depositor may be insolvent.

6. Two defenses irreconcilably inconsistent may not be enforced, and the position assumed by the party prior to the suit relative to the facts and circumstances involved in the transactions drawn into question will prevail.

(Syllabus by the Court.)

Error to district court, Lancaster county; Tibbets, Judge.

Action by the Columbia National Bank against the German National Bank. Judgment for defendant, and plaintiff brings error. Reversed.

J. H. Broady and E. E. Brown, for plaintiff in error. N. C. Abbott and Abbott, Selleck & Lane, for defendant in error.

HARRISON, C. J. On June 2, 1893, the State Bank of Courtland was engaged in the business suggested by its name, and at the place thereby indicated, and in the course of such business drew and forwarded an order or a check on the German National Bank of Lincoln in favor of "J. H. McClay, Cashier," he being such officer of the Columbia National Bank of Lincoln, for the sum of $898, and inclosed the same in an envelope addressed, "Columbia National Bank, Lincoln, Nebras

ka," and mailed the package. On June 3d, It did likewise in relation to an order or check similar in form and substance in the material portions except amount, which was $3.88. The instruments, or checks we may call them, --for, whatever may be the proper technical designation, they were, in effect, checks, and to be considered as such (Bull v. Bank, 123 U. S. 109, 8 Sup. Ct. 62),—were received through the mail by the Columbia National Bank on June 7, 1893, and were, in the morning of the day of reception, presented to the drawee for payment, which was refused. The Bank of Courtland had an account with the German National Bank, and on the morning of June 7, 1893, there was to the credit of the former the sum of $983, which was subject to check. At the close of business on June 6, 1893, the Bank of Courtland suspended, and passed into the hands of a receiver, who afterwards continued in possession for the sole purpose of adjustment of its affairs. The Bank of Courtland was a debtor of the German National Bank, the indebtedness being evidenced by promissory notes which were payable on dates subsequent to June 7, 1893, or they were not then due, but on that date the amount which was shown by the open account in favor of the Bank of Courtland was by the German National Bank credited as a payment on one of the notes to which we have just referred, and the account balanced or closed. In this, an action by the Columbia National Bank against the German National Bank to recover the amount of the two checks sent it by the bank at Courtland, the defendant was accorded a judgment, to reverse which the plaintiff has prosecuted error proceedings to this court. What may not be inaptly termed a preliminary question, which has its origin in the condition of the record as presented, is raised and urged for the defendant. The certificate of the trial judge of the allowance of the bill of exceptions recites that the document contains "all the testimony adduced or offered on the hearing of the" cause, and in other portions of its statements the reference in each is to "testimony." It is of this it is objected that it is insufficient, inasmuch as testimony means but a part of the evidence, and the certificate should show that all the evidence was included in the bill of exceptions. It is incontestably true that "testimony" and "evidence" are not synonymous terms; that testimony is but a kind or species of evidence; that the former is, in a trial, the portion of the latter which may be given orally by witnesses; that the latter is inclusive of the testimony of witnesses, documents, etc.; that "evidence" is the generic term (Printing Co. v. Morss, 60 Ind. 153); and if we were confined to the certificate, and could look no further, it might be fatal to the bill of exceptions (Printing Co. v. Morss, supra; Lindley v. Dakin, 13 Ind. 388). But an examination of other parts of the document reveals that it was presented, as the law required, to the adverse party for examination and proposal of amendments, and returned

indorsed, "I here with return the within bill of exceptions, and suggest no amendments," over the signature of counsel. From such an indorsement the presumption arises that the bill of exceptions on which it appears contains all the evidence, though the certificate of the trial judge may not so state. Cattle v. Haddox, 14 Neb. 59, 14 N. W. 803. There being nothing in this record to indicate to the contrary, such presumption must be indulged and govern. Furthermore, if the certificate be read in connection with other matters of the bill of exceptions to which it is attached, it is clearly disclosed that "testimony" therein is used as the equivalent of "evidence"; and, when this is true, it is sufficient. Harris v. Tomlinson, 130 Ind. 426, 30 N. E. 214.

It is the contention for the plaintiff that the judgment of the trial court was violative of the rules that a check drawn on funds in a bank is an appropriation of its amount in favor of the holder, and on refusal of its payment, where the funds have not been drawn out prior thereto, the holder may sue for the recovery of the amount (Fonner v. Smith, 31 Neb. 107, 47 N. W. 632); and, further, that the bank could not, as against the rights of the holder of the checks, apply the deposit or money on open account subject to check to the payment of a debt of the depositor to the bank which had not matured or was not due. We believe these propositions advanced for the plaintiff are sound, and will adopt them. They are thoroughly supported by precedent, and we think the logic and reason applicable to the events and circumstances of the matter in hand. Counsel for plaintiff have cited the following cases, which fully sustain their position: Bank v. Robinson, 97 Ky. 552, 31 S. W. 136; Fourth Nat. Bank v. City Nat. Bank, 68 Ill. 398; Fuller v. Steiglitz, 27 Ohio St. 355; Jones v. Bank, 10 Wkly. Notes Cas. 102; Bank v. Jones, 2 Penny. 377; Oatman v. Bank, 77 Wis. 501, 46 N. W. 881; Bank v. Ritzinger, 20 Ill. App. 27; Skunk v. Bank, 16 Wkly. Law Bul. 353; Spaulding v. Backus, 122 Mass. 553.

It was of the evidence that on the morning of the 7th of June, 1893, the cashier of the defendant bank had a telephonic conversation with the president of the Bank of Courtland, in which the propriety of the action of the former in applying the amount of the open account of the latter as a payment on its debt to the former which was not yet due was discussed, and, soon after this conversation was closed, the president of the Bank of Courtland sent a telegram to the said cashier, in which he attempted, for the bank, to authorize such action as we have indicated. The telegram was of date the 7th of June, and stated: "Apply our balance on our indebtedness. State Bank Courtland." But all this was futile, for the Courtland Bank had, on the evening of the 6th of June, passed from the control of its officers into the hands of the officers of the state, and it was no longer a going concern.

It appeared in evidence that of the amount of the open account of the Courtland Bank