$43

Impeachment of acknowledgment.

44. (1885.) A certificate of acknowledgment of a deed or mortgage is prima facie correct, and cannot be impeached except for fraud, collusion, or imposition. Pereau v. Frederick, 17 Neb. 117 (22 N. W. 235).

45. (1901.) The certificate of an officer having authority to take the acknowledgment of a deed cannot be impeached except for fraud, collusion or imposition. Boldt v. Becker, 1 Unof. 75 (95 N. W. 509).

- Weight and sufficiency of evidence. 46. (1892.) A certificate of acknowledgment of a deed or mortgage, in proper form, can be impeached only by clear, convincing, and satisfactory proof that the certificate is false and fraudulent. Phillips v. Bishop, 35 Neb. 487 (53 N. W. 375); Barker v. Avery, 36 Neb. 599 (54 N. W. 989); (1901) Davis v. Kelly, 62 Neb. 642 (87 N. W. 347); (1904) McGuire v. Wilson, 5 Unof. 540 (99 N. W. 244).

47. (1892.) In an action to foreclose a mortgage on a homestead, the acknowledg ment to the wife being in dispute, the evidence introduced is sufficient to sustain a finding in favor of the validity of the acknowledgment. Phillips v. Bishop, 35 Neb. 487 (53 N. W. 375).

48, 49. (1901.) The certificate of an of ficer having authority to take acknowledgments, cannot be impeached by showing merely that such officer's duty was irregularly performed. Council Bluffs Savings Bank v. Smith, 59 Neb. 90 (80 N. W. 270; 80 Am. St. Rep. 669); Morris v. Linton, 61 Neb. 537 (85 N. W. 565).

50. (1903.) Pleading and proof that acknowledgment of a mortgage upon a family

$56

homestead taken by an officer and stockholder in a loan company which was agent for the loaner, held not to invalidate the acknowledgment. Gilbert v. Garber, 69 Neb. 419 (95 N. W. 1030).

51. (1904.) The evidence to impeach successfully the certificate of acknowledgment of a notary public must be clear, convincing and satisfactory that the certificate is false and fraudulent. Banking House of A. Castetter v. Stewart, 70 Neb. 815 (98 N. W. 34).

52. (1904.) Evidence examined, and held insufficient to impeach the certificate of acknowledgment of the mortgage in controversy. McGuire v. Wilson, 5 Unof. 540 (99 N. W. 244).

53. (1907.) A certificate of acknowledgment of a deed or mortgage, in proper form, can be impeached only by clear, convincing, and satisfactory proof that the certificate is false and fraudulent; and whilst the making of a false certificate is a fraud upon the party against whom it is perpetrated, yet the mere evidence of a party purporting to have made the acknowledgment usually cannot overcome the officer's certificate, nor will such evidence, slightly corroborated, overcome it. Sheridan County v. McKinney, 79 Neb. 223.

Admissibility in evidence.

54. (1896.) Deed executed in another state before an officer having no seal, to be admissible in evidence, must be certified in O'Brien v. the manner provided by statute. Gaslin, 20 Neb. 347 (30 N. W. 274).

54a. (1876.) A deed executed and acknowledged by a justice of the peace, in Virginia, offered in evidence to prove that the grantors had parted with the legal title to certain real estate therein mentioned, is properly excluded, there being no evidence that it was executed and acknowledged according to the laws of Virginia. Hoadley v. Stephens, 4 Neb. 431.

55: (1889.) The date of an acknowledgment of a deed, when dated earlier than the deed itself, will prevail over that of the deed, and such acknowledgment is admissible in evidence over the objection of the discrepancy in the dates. Buck v. Gaye, 27 Neb. 306 (43 N. W. 110).

56. (1894.) The record of a deed is not admissible in evidence unless the certificate of acknowledgment is substantially in ac

2. (1901.) The existence of a lawful claim implies, ordinarily, the right to enforce such claim by action. Ayres v. Thursfon County 63 Neb. 96 (88 N. W. 178).

3. (1903.) A plaintiff must recover on the strength of his own case, not on the weakness of the defendant's case; it is his right, not the defendant's wrong-doing, that is the basis of recovery. Home Fire Ins. Co. t. Barber, 67 Neb. 644 (93 N. W. 1024; 108 Am. St. Rep. 716; 60 L. R. A. 927).

3a. (1903.) The guarantee in the bill of rights, that every person shall have a remedy, by due course of law, for every injury done him in his lands, goods, person or reputation, is not a guarantee of a remedy for every species of injury in respect of such matters, but only for such as result from an invasion or infringement of a legal right, or the failure to discharge a legal duty or obligation. Goddard v. City of Lincoln, 69 Neb. 594 (96 N. W. 273).

4. (1907.) All facts which, taken together, are necessary to fix the responsibility for an injury complained of constitute a cause of action. Johnson v. American Smelting & Refining Co., 80 Neb. 256 (116 N. W. 517).

Cause accruing in foreign state.

5. (1884.) A cause of action which accrued in Iowa under a statute of that state may be enforced in the court of this state. Delahaye v. Heitkemper, 16 Neb. 475 (20 N. W. 385).

Motive for bringing suit.

6. (1896.) Where one has a valid cause of action against another, his motive in instituting it is immaterial, and the fact that it is inspired by malice is no defense. Jacobson v. Van Boening, 48 Neb. 80 (66 N. W. 993; 58 Am. St. Rep. 684; 32 L. R. A. 229).

7. (1900.) The motive which induces a party to defend a suit brought against him will not be inquired into, but rather his legal

rights in the premises. State v. German Savings Bank, 61 Neb. 87 (84 N. W. 599). Abstract questions of law.

8, 9. (1902.) Abstract questions of law cannot be made the subject of litigation. There must be real parties, and a res in dispute that will become res judicata when the litigation is determined. State, ex rel. Wright, v. Savage, 64 Neb. 702 (91 N. W. 557); (1903) State, ex rel. Kennedy, v. Broatch, 68 Neb. 687 (94 N. W. 1016; 110 Am. St. Rep. 477).

Defenses.

10. (1896.) The mere dismissal of an action and a publication by plaintiff that he did wrong in bringing the suit cannot be shown in bar of a subsequent suit upon the same cause of action. Oliver v. Lansing, 48 Neb. 338 (67 N. W. 195). Persons entitled to sue.

11. (1888.) The real party in interest under section 29 of the code is the person entitled to the avails of the suit. Hoagland v. Van Etten, 22 Neb. 681 (35 N. W. 869).

12. (1888.) A mere assignee having no interest in the result of suit, but who obtains an assignment upon a promise to pay the assignor the amount he may derive from the action, is not the real party in interest, and cannot maintain the action. Hoagland v. Van Etten, 22 Neb. 681 (35 N. W. 869). 13. (1892.) When an action is brought in the proper name of one of the plaintiffs followed by the words "& Co.," a demurrer on the ground of a defect of parties plaintiff no doubt will lie, but not for want of legal capacity to sue. Brookmire & Co. v. Rosa, 34 Neb. 227 (51 N. W. 840).

14. (1892.) An action brought in the name of James H. Brookmire & Co. is not subject to demurrer for want of legal capacity of the plaintiff to sue. One of them at least, on the face of the record has such capacity, and as the demurrer applies to all the members of the supposed firm it should be overruled. Brookmire & Co. v. Rosa, 34 Neb. 227 (51 N. W. 840).

15. (1902.) While a third party may maintain an action or a defense under an agreement between others made for his benefit, it must appear that there was an intent by the promisee or person with whom the agreement was made to secure some benefit to such third party, and, also, that there existed some privity between the promisee and the party to be benefited. Frerking v. Thomas, 64 Neb. 193 (89 N. W. 1095).

16. (1904.) The courts will not entertain a controversy concerning the title or right of possession of real or personal property, except at the instance of some person or persons having or claiming a right thereto derived from, or recognized by, the laws of this state or of the United States. Bonacum v. Murphy, 71 Neb. 487 (104 N. W. 180).

17. (1904.) Whether a liability arising from a breach of a duty prescribed by statute or ordinance accrues for the benefit of an individual specially injured thereby, or whether such liability is exclusively of a public character, depends upon the nature of the duty enjoined and the benefits to be derived from its performance. Frontier Steam Laundry Co. v. Connolly, 72 Neb. 767 (101 N. W. 995; 68 L. R. A. 425).

Persons liable.

18. (1883.) As a general rule, no one can be subjected to a suit and judgment at law unless he, or one whose legal representative he is, has done some unlawful act, either of commission or omission, or failed in the discharge of some duty. Jones v. Duras, 14 Neb. 40 (14 N. W. 537).

II NATURE AND FORM. Nature of habeas corpus proceedings, see Habeas Corpus, §§ 1-8.

Nature of action for conversion, see Trover and Conversion, § 20.

Nature and form of remedy in general.

19. (1881.) Under the code there is but one form of action, and that consists of a statement of the facts constituting the cause of action. Rhea v. Reynolds, 12 Neb. 128 (10 N. W. 549).

20. (1881.) The very object of the code is to abolish the technical rules that prevailed previous to its existence, by which the rights of parties were frequently sacrificed. Rhea v. Reynolds, 12 Neb. 128 (10 N. W. 549).

21. (1882.) Where a statute, which confers the means of acquiring a right, prescribes an adequate special mode of determining, by a judicial investigation, the fact upon which the right depends, that mode is exclusive. Tierney v. Cornell, 3 Neb. 2

22. (1891.) When a statute gives that did not before exist, and it pro remedy for its enforcement, that exclusive. Blain v. Wilson, 32 N. W. 224).

23. (1894.) It is not ma

name, or whether by any, an action under the code is designated. The pleader should state the facts, and if they constitute a cause of action, the law affords the remedy without reference to the form of the action. Skinner v. Skinner, 38 Neb. 756 (57 N. W.. 534).

24. (1896.) Under our system of pleading the nature of an action is determined not alone by the prayer for relief, but also from the character of the facts alleged. Stephens v. Harding, 48 Neb. 659 (67 N. W. 746).

25. (1896.) The term "action" is applicable to almost any proceedings in court, by which one pursues that remedy which the law affords him. Gibson v. Sidney, 50 Neb. 12 (69 N. W. 314).

For the recovery of money only.

26. (1879.) An action for the recovery of money only is one where it is sought to reduce a debt to judgment upon which an execution may issue and be levied upon any property of the defendant not exempt. Jones v. Null, 9 Neb. 57 (1 N. W. 867). Civil or criminal.

27. (1882). The test of determining whether a cause is civil or criminal in nature is to inquire whether the proceedings is by indictment or action; if by indictment it is criminal; if by action, civil. Mitchell v. State, 12 Neb. 538 (11 N. W. 848). Legal or equitable.

28. (1876.) Although the distinction between acts at law and suits in equity has by statute been abolished, a purely legal claim must be determined by the rules of a law court, while claims of an equitable nature must be determined according to the rules of equity. Wilcox v. Saunders, 4 Neb. 569.

29. (1881.) All distinctions between actions at law and suits in equity are abolished except such as inhere in the nature of the case. Rhea v. Reynolds, 12 Neb. 128 (10 N. W. 549).

30. (1893.) It is not the object of the code to abolish existing remedies in cases no provision is made therein for the of actions. Cases involving subhts, which are clearly outside the of the code, may be prosecute In practice pre