Volume 101 — Nebraska Reports

<p>Appeal from the district court for Holt county: William H. Westover, Judge.</p>

<p>Appeal: Conflicting Instructions. It is erroneous to state to the jury by instructions that certain allegations of negligence sot forth in the petition are to he considered by it in malting up its verdict, and also to tell the jury that such allegations should he disregarded by them. Unless from the whole record it is apparent the jury were not misled thereby, the error must he considered prejudicial, since it is impossible to know which of the directions it followed.</p>

<p>1. Wills: Setting Aside: Undue Influence: Burden of Proof. When it is shown that a will has been signed and attested by the statutory number of witnesses, and it is conceded that the testator was of sound mind, the will is presumed to be valid. In order to set it aside on the ground that it has been procured by undue influence, competent proof is required, and the burden of" proof is ordinarily upon the contestant.</p> <p>2. -: Probate. If the facts in evidence justify the belief that the instrument was the result of the volition and expressed intentions of the testatrix, that the disposition of her property is not opposed to natural justice or contrary to or opposed to the usual considerations which move reasonable minds in such matters, and that it may as well have been the result of love and affection as of influence, solicitation or coercion, a finding is justified that the will expresses the true intention of its maker.</p> <p>3. -: Execution: Proof. The due and proper execution of a will may be proved by the testimony of the attesting witnesses, even though the attesting clause is excluded from the consideration of the jury.</p> <p>4. -: Probate: Trial: Withdrawal of Evidence. ■ It is within the discretion of the district court to admit or reject evidence of declarations made by the testatrix some four or five years before the execution of the will to the effect that she did not intend to make a will, and under the evidence in this case it was riot prejudicial to withdraw such testimony ■ from the jury.</p> <p>5. -: -: Verdict: Sufficiency of Evidence. Where the evidence in behalf of the contestants tending to establish the existence of undue influence is specifically denied by the witnesses for the proponents, a verdict that the will was valid will not be disturbed for lack of evidence.</p>

<p>Appeal from, the district court for Nuckolls county: Leslie G-. Hurd, Judge.</p>

<p>Appeal from the district court for Grant county: James N. Paul, Judge.</p>

<p>1. Executors and Administrators: Special Administrator: Appointment: Appeal. The special administrator provided for by section 1381, Rev. St. 1913, has entirely different duties from those imposed upon a special administrator appointed under section 1341, Rev. St. 1913. The latter section provides that “no appeal shall be allowed from the appointment of such special administration.” This provision does not apply to the administrator appointed under section 1381. From the appointment under section 1381 an appeal is allowed by the general provision for appeals from orders of the county court.</p> <p>2. Partnership: Death of Partner: Special Administrator: Appointment. A special administrator to settle with the surviving partner of the decedent is authorized by section 1381, Rev. St. 1913, only when such surviving partner is also the executor or administrator of the decendent’s estate; that is, the general executor or administrator having charge of the property of the decedent, including the residuary estate.</p> <p>3. -:-:-:-. In such case, if the surviving partner is executor of a will disposing of only a part of the estate, and there is also a general administrator for the whole property including the residuary estate, such general administrator must settle with the surviving partner, and no special administrator is allowed for that purpose.</p>

<p>1. Insurance: Fraternal Association: Decree: Enforcement. When this court has taken jurisdiction of the affairs of a mutual beneficiary society at the suit of the state by the state insurance board, and has entered a judgment and restraining order, then it is the duty of this court to see that its judgment is effective and is not violated by the parties.</p> <p>2. -:-: -. In the judgment heretofore entered in this case it was intended to preserve the affairs of- the defendant society in statu quo as far as practicable until the governing body, the supreme forest, can interpret and, if necessary, amend its laws and regulations. In the meantime the general administration of the affairs of the society is committed to Mrs. Manchester, as supreme guardian, and those who are associated with her.</p> <p>3. -: -: Injunction: Violation. Until such action by the supreme forest, complaints of violations of the orders of this court, or complaints of misdemeanors of officers in connection with the affairs of the order, must be addressed to this court.</p>

<p>Appeal from the district court for Lancaster county: William: H. Westovee, Judge.</p>

<p>Wills: Contest: Question for Jury. In this, a, contest over the pro-hate of a will, the evidence is examined, and, there being no testimony supporting the allegation of undue influence, the court properly withdrew that question from consideration by the jury.</p>

<p>■ Appeal from the district court for Richardson county: John B. Raper, Judge.</p>

<p>Appeal from the district court for Holt county: Robert R. Dickson, Judge.</p>

<p>1. Statutes: Construction. “In the construction of a statute, effect must be given, if possible, to all its several parts. No sentence, clause or word should be rejected as meaningless or superfluous, if it can be avoided; but the subject of‘the enactment and the language employed, in its plain, ordinary and popular sense, should be taken into account, in order to determine the legislative will." Hagenbuclc v. Reed, 3 Neb. 17.</p> <p>2. -: -: Title. In case of doubt as to the meaning of a statute, resort may be had to the title as an aid to discover the legislative intent, but by no means to enlarge the scope of the statute so as to include a subject not fairly expressed in the body of the act.</p> <p>3. •--- — : -. It is the duty of the court to discover, if possible, the legislative intent from the language of the act. It is not the court’s duty, nor is it within its province, to read a meaning into á statute that is not warranted by the legislative language. In the legislative domain, and within constitutional bounds which it is bound to follow, the legislative is supreme.</p> <p>4. -: -: Judicial Notice. In the construction of a statute, courts take judicial notice of events and conditions generally known within their jurisdiction.</p> <p>5. Municipal Corporations: Commission Form of Government: Officers: Election. Section 5300, Rev. St. 1913, construed, and helé to apply to Lincoln, a city of approximately 60,000 inhabitants.</p>

<p>Appeal from tbe district court for Dakota county: Guy T. Graves, Judge.</p>

<p>Error to the district court for Cherry county-: William H. Westover, Judge.</p>

<p>1. Evidence: Market Value. The knowledge on which a witness as to the market value of real estate bases his opinion must not have been acquired long before or after the rights of the parties became fixed, and, where his only knowledge of such value is acquired from one to two years subsequent to such time, it is too remote.</p> <p>2. Evidence examined, and held insufficient to' sustain the verdict.</p> <p>3. Trial: Instruction's: Assumption of Pact. “It is error for the court to give an instruction which assumes as established a disputed question of fact. It is for the jury alone to pass upon conflicting evidence.” Terry v. Beatrice Starch Go., 43 Neb. 866.</p>

<p>Appeal from the district court for Nuckolls county: Leslie G. Hurd, Judge.</p>

<p>1. Parties: Intervention. Since the amendment of 1887, appearing now as sections 7609-7611, Rev. St. 1913, any person claiming an interest in the subject-matter of an action may intervene at any time before trial, as a matter of right.</p> <p>2. Pleading: Intervention: Strikinq Answer. Pending the administration of the estate of one H. K., who died intestate, a petition was presented to the county court by one L. K., claiming to be a brother of decedent, praying that he be found and decreed to be the sole heir. The state of Nebraska by answer and cross-petition denied the relationship and heirship, alleged that the intestate was without kindred or wife, and asked that the court decree that the estate should escheat. The court found that L. K. was not a brother and heir. On-appeal to the district court a like petition and answer were filed. On motion of L. K. this answer was stricken from the files. Held, that, although the pleading was irregular in form, it alleged an interest of the state in the subject-matter of the litigation adverse to the petitioner, and it was error to strike it from the files.</p> <p>3. Appeal: Time op Entrt. After a new trial was granted, leave to file such pleading was again requested and denied. The petitioner had the verdict and judgment. Held, that an appeal brought within six months of the final judgment is in time.</p>

<p>Appeal from the district court for Douglas county: Willis G. Sears, Judge.</p>

<p>Appeal from the district court for Dawes county: William H. Westover, Judge.</p>

<p>1. Master and Servant: Workmen’s Compensation Act: Accident. Plaintiff, who was employed to attend to and fire a steam-heating hoiler, was compelled to use a narrow passageway when inspecting the steam gauges. Two iron beams lay on the boiler, and the ends projected over the passage. Plaintiff attempted to move them out of the way by pushing with his body, when he felt pain in his stomach, became faint and weak, was compelled to cease work and be assisted home. On the third day afterward he vomited blood, and afterwards had a slight paralytic stroke. Held, that his condition was the result of an accident as defined in section 3693, Rev. St. 1913, and that the injury arose out of and in the course of his employment.</p> <p>2. -: ; — : Appeal: Conflicting Evidence. The evidence as to whether the present disability of the plaintiff was caused by the accident being conflicting, and there being sufficient testimony to that effect to support the finding of the district court, its judgment will not be disturbed.</p>

<p>1. Principal and Surety: Contribution: Limitations. 'A surety in wliose favor the statute of limitations has not run, who has done nothing to suspend its operation, and who has been compelled to pay the debt- of his principal, may exact contribution from a co-surety in another state, though under the laws thereof the creditor’s claim against the latter was barred when Jhe principal’s debt was paid.</p> <p>2. Parol Evidence: Subeties: Coktkibution. In an action by a surety for contribution from an alleged cosurety, parol evidence may be admitted to show the actual relation of the parties to the obiigation discharged by plaintiff.</p>

<p>Appeal from the district court for Dawson county: Hanson M. Gkimes, Judge.</p>

<p>1. Insurance: “Assessment Association.” An insurance company which requires the payment of a fixed premium in advance and s provides benefits not in any degree dependent upon the collection of assessments from other members, and which does not provide for the levying of extra assessments, if necessary, is not an assessment association as defined by the Nebraska insurance laws. Rev. St. 1913, sec. 3138.</p> <p>2. -: Reserve Fund. A mutual insurance company which guarantees dividends in the form of paid-up insurance for one year to policy-holders who have been members continuously for five years may be required by the insurance board to provide a reserve fund to meet the liability thus created. Rev. St. 1913, secs. 3138, 3139, 3233, 3235.</p>

<p>Waters: Irrigation: Adverse User. During the time a prior appropriator carrying water for hire to landowners is properly engaged in developing its right, the use of water hy an upper proprietor under a subsequent appropriation is not adverse, where it does not deprive the prior appropriator of the use of water when actually needed.</p>

<p>Appeal from the district court for Douglas county: Charles Leslie, Judge.</p>

<p>Pleading: Petition: Construction. A petition should he construed with reference to the general theory upon which it proceeds, and where it thus states a cause of action for negligence,' it is not error to refuse to construe it as also stating a cause of action for a trespass based on an allegation amounting to a legal conclusion.</p>

<p>Appeal from the district court for Douglas county: Lee S. Estelle, Judge.</p>

<p>1. Municipal Corporations: Taxation: Constitutional Provisions. By section 6, art. IX of the state Constitution, the corporate ■authorities of cities may be authorized by statute to assess and collect taxes for all “corporate purposes.” The levy of a tax by the city of Lincoln for campus extension to induce the location of the state university favorably to the interests of the city is for a corporate purpose, and the provision of section 4546, Rev. St. Í913, authorizing such levy, does not violate that section of the Constitution.</p> <p>2. -: -: Legislative Powers. The advisability of conferring this power upon the city is a question of public policy ■‘'or the legislature, and not for the courts. Whether such location would have such effect was a question for the exercise of the reasonable discretion of the city authorities.</p> <p>3. -: -: Discretionary Authority. The question for the city authorities to consider was the benefit of the city at largo, and the fact that some parts of the city were or might be benefited more than other parts would not render the tax invalid. Individuals may be called upon to sacrifice some rights to the greatest good for the greatest number.</p> <p>4. Statutes: Amendment. The amendment of the statute giving the cities the authority to levy taxes for university campus extension is germane to the general provision of the statute specifying for what purposes such taxes may be levied.</p> <p>5. Constitutional Law: Municipal Corporations: Taxation. This tax being levied for a corporate purpose of the city of Lincoln, sections 1' and 4 of article IX of the state Constitution and the Fourteenth amendment to the federal Constitution have no application.</p>

<p>Appeal: Conflicting Evidence. Under the employers’ liability act (Laws 1913, ch. 198), where the case is heard in court before a judge of the district court upon conflicting evidence, and where there is competent evidence sufficient to sustain the finding, the judgment rendered by the district court will not' be set aside on appeal unless it is clearly wrong.</p>

<p>Landlord and Tenant: Defective Premises: Liability of Landlord. “The rule of caveat emptor applies to leases of real estate, and, in the absence of warranty, deceit, or fraud on the part of the lessor, the lessee cannot recover for personal injuries received through latent defects therein, of which the lessor had no knowledge at the time of making the lease, and which were as patent to the lessee as to the lessor.” Davis v. Manning, 98 Neb. 707.</p>

<p>Appeal from the district court for Dawson county: Hanson M. Grimes, Judge.</p>

<p>Appeal from the district court for Douglas county: William A. Redick, Judge.</p>

<p>1. Witnesses: Privileged Communications: Physcians. When a party submits to an examination, or inspection, by a physician, for the purpose of learning the state of his health or the physical condition of any part of his anatomy, the knowledge thus acquired by the physician is privileged, and, under section 7898, Rev. St. 1913, the physician is not permitted to testify to the condition he found, over objection based upon the statute.</p> <p>2. -: - — :--. When plaintiff has permitted a physician to make a radiograph of his injured foot for the purpose of ascertaining the extent and character of his injuries, the radio-graph so made is not admissible in evidence over objection of plaintiff based upon the statute.</p> <p>3. Master and Servant: Injury to Servant: Interstate Commerce. The evidence, set out in the opinion, held insufficient to show that the locomotives being moved when plaintiff received his injuries were instruments of interstate commerce.</p> <p>4. Damages: Remittitur.. The evidence of plaintiff’s life expectancy and earning capacity and the extent of his injuries, set out in the opinion, and a verdict of $17,500 held so excessive as to require a remittitur of $5,500.</p>

<p>Banks and Banking: “Deposit:” Failure to Pay: Guaranty Fund. When a party, in good faith, and in the usual course of business, places money in a state bank under an agreement that the account shall be subject to check and shall draw interest at a rate not exceeding that fixed by statute, it becomes a deposit under the provisions of sections 280-356, Rev. St. 1913, and, in case the bank fails to pay on demand, it may be made a charge against the depositors’ guaranty fund.</p>

<p>Appeal from the district court for Lancaster county: P. James Cosgrave, Judge.</p>

<p>Appeal from the district court for Douglas county: Charles Leslie, Judge.</p>

<p>1. Insurance: Action: Suicide: Question for Jury. Where suicide is properly presented as a defense in a suit on a certificate of accident insurance to recover indemnity for the death of insured, it is error to direct a verdict for plaintiffs, if different minds may reasonably draw different conclusions from the evidence on that issue. Walden v. Bankers Life Ass’n, 89 Neb. 546, explained.</p> <p>2. Pleading: Defenses. “A defendant .may plead as many grounds of defense as he may have, provided they are not so repugnant that if one be true another must be false.” Home Fire Ins. Oo. v. Decker, 55 Neb. 346.</p>

<p>Appeal from the district court for Lancaster county: P. James Cosgrave, Judge.</p>

<p>Error to the district court for Madison county: Anson A. Welch, Judge.</p>

<p>Original action in ejectment.</p>

<p>Schools and School Districts: Expenses of Officers: Injunction. Expenses incurred by the president of the board of education and the superintendent of schools, at Omaha, Nebraska, in attending a congress of school hygiene, under the authority of the board, for the purpose of securing general information on the subject of school hygiene, are not necessary expenses incurred in the performance of official duties, and the treasurer of the board may be enjoined from the payment of such expenses.</p>

<p>1. Judges: De Facto Officers. A county judge was removed from office by a judgment of the district court declaring the office vacant. After three days the county board duly appointed another person to fill the vacancy. He qualified, took possession of the office, performed its duties, received its fees, and was generally recognized as the one in authority. Afterwards, on appeal,' the judgment of ouster was held void, and the duly elected official was reinstated in office. Held, that the appointee of the county board performed the duties of the office with color’ of title and was officer de facto.</p> <p>2. -: -: Salary. “Where a county has once made payment of the salary of a county office, to one actually in possession of the office, performing its duties with color of title, before his right to the office has been determined against him by a competent tribunal, it cannot afterwards be compelled to pay the same salary to the de jure officer.” State v. Milne, 36 Neb. 301.</p> <p>3. Appeal: Reversal: Mandate. “When the judgment of a district court is reversed, a mandate is the proper and legal mode of communicating the judgment and directions of the supreme court to o such district court.” Horton v. State, 63 Neb. 34.</p>

<p>Appeal from the district court for Adams county: Harry S. Dungan, Judge.</p>

<p>Schools and School Districts: Tuition: Injunction. Minnie Martins, plaintiff, a minor child, by her next friend, enjoined the defendant school district from refusing to permit her to attend its public school without paying tuition. The testimony examined, discussed in the opinion, and held, that plaintiff was qualified to attend the public school in the defendant school district without the payment of tuition on the ground of residence and on the ground that a married sister, resident in the district and with whom plaintiff lived, stood in loco parentis to her.</p>

<p>Appeal from the district court for Douglas county: Charles Leslie, Judge.</p>

<p>Appeal from the district court for Harlan county: Harry S. Dungan, Judge.</p>

<p>1. Taxation: Exemption: Pkoof. Facts which render property exempt from taxation under section 6301, Rev. St. 1913, must he affirmatively established. Watson v. Cowles, 61 Neb. 216.</p> <p>2. -: -: Evidence. Evidence examined, and held insufficient to show that the property of plaintiff lodge is exempt from taxation. Plattsmouth Lodge v. Cass County, 79 Neb. 463, distinguished.</p>

<p>1. Municipal Corporations: Defects in Streets: Notice. Section 4583, Rev. St. 1913, requiring written notice of defective" public streets to be filed with the city clerk five days before the occurrence of the injury complained of, has no application when the defects complained of were open and obvious and existed at the time the city opened the street to public travel, without guarding or warning against them.</p> <p>2. -: -: Negligence: Question fob Jubt. Where plaintiff was injured by his horse becoming frightened and plunging down a declivity into a creek bed in the street, which the city left unguarded when it opened the street to the public, the question of negligence is for the jury.</p> <p>3. Evidence examined, and held to support the verdict.</p>

<p>Appeal from the district court for Scott’s Bluff county: Ralph W. Hobart, Judge.</p>

<p>1. Banks and Banking: “Depositor.” A “depositor” is one who delivers to or leaves with a hank money subject to his order, either upon time deposit or subject to check.</p> <p>2. -: Deposit by Director. As the statute governing banks and banking stood prior to the enactment of House Roll No. 201, by the thirty-fifth session of the Nebraska legislature, a director of a state bank, as regards a deposit made by him in the bank of which he was a director, stood in the same position as any other depositor.</p>

<p>Appeal from the district court for Banner county: Ralph W. Hobart, Judge.</p>

<p>1. Master and Servant: Injury to Servant: Negligence: Question eor Jury. In this an action for damages for personal injuries sustained by a street railway conductor by coming in contact with a charged wire, the evidence is examined, and held to require the submission to the jury of the question whether the defendant was negligent in maintaining such wire at the height of feet above the top of the railway car at the point where the accident occured.</p> <p>2. Appeal: Demonstrative Evidence. Where there was a sharp conflict in the testimony as to the existence of any permanent injury to or deformity of the plaintiffs spine, defendant was not prejudiced by the court permitting the plaintiff to bare his body so that the d'octors testifying in his behalf could better describe the nature of the injuries claimed to have been sustained.</p> <p>3. Excessive Damages. Under the facts proved, a verdict for $30,000 is excessive.</p>

<p>1. Insurance: Foreign Beneficial Associations: Limitations. A benefit society incorporated in another state which comes into this state in order to do business under the permission granted by the laws of Nebraska is subject to the same limitations and restrictions as such an association organized in Nebraska. '</p> <p>2. -: -: Beneficiaries: Law Governing. The statute of Nebraska which specifically prescribes the persons to whom payment of benefits by a fraternal beneficiary association can be made (Rev. St. 1913, see. 3298), governs in all Nebraska contracts. The law of the domicile of a foreign association has no application to such contract.</p>

<p>Taxation: Assessment: Railroad Accessories. A pipe line connecting springs with a water system established and operated by a railroad company, owner, for general railroad purposes at a station and roundhouse, and the necessary land around the springs, should be assessed by the state board of equalization and assessment, and not by the county board of equalization, though the property described is not within the regular railroad right of way and station grounds. Rev. St. 1913, secs. 6375-6377.</p>

<p>1. Constitutional Law: City Ordinance: Removal of Garbase. A city ordinance defining garbage to include “every refuse, accumulation of animal, fruit or vegetable matter that attends the preparation, use, cooking or the dealing in or storage of meats, fish, fowl, fruits or vegetables,” and prohibiting its removal through the streets or alleys by any one not employed by the city for that purpose, is not unconstitutional as taking the property of a restaurant proprietor for public use without just compensation or as depriving him of his property without due process of law, though the regulation may prevent him from selling garbage as feed for swine.</p> <p>2. -: -: Bight to Question. Parties whose constitutional rights are not affected will not ordinarily be permitted to challenge the constitutionality of a law on the ground that it may operate in other respects to deprive other persons of their constitutional rights.</p>

<p>1. Master and Servant: Action for Injury: Defenses: Assumption of Risk: Waiver. In an action by an employee for damages caused by an injury incurred in attempting an act of unusual danger, if the defense is that the danger "was open and notorious, and that the plaintiff assumed the risk, and if the evidence shows that the plaintiff protested against performing the service on account of the apparent danger, and that the defendant peremptorily ordered him to perform it, the defendant will he held to have waived the defense of assumption of risk.</p> <p>2. -: -: Negligence: .Evidence. When the sole ground of negligence alleged and relied upon is that the danger was known to the defendant, and was unknown to the plaintiff, and could not have been observed by him in the exercise of ordinary care and diligence, it is not necessary to prove that the defendant peremptorily ordered him to perform the service over his protest. It is sufficient in that regard if the service rendered was in the line of plaintiff’s employment and was consented to by defendant without notifying plaintiff of the hidden danger.</p> <p>3. -: -: Issues: Instructions. When the petition in such ease contains allegations that the defendant did many things negligently, without alleging any facts that would amount to actionable negligence except in one particular, it is erroneous to give the whole petition in charge to the jury, and instruct them that if they find defendant guilty of any act of negligence alleged in the petition they shall find for the plaintiff.</p> <p>4. -: -: -: -. The court in its charge to the jury described an .alleged act of the defendant that was not of itself counted upon as negligence justifying a recovery, from which the jury might infer that if that act was proved they should find for the plaintiff. This was erroneous.</p>

<p>1. Motor Vehicles:. Regulation oe Speed. Since the decision in Gillespie v. City of Lincoln, 35 Neb. 34, the legislature has modified the law as stated in that decision by the enactment of section 3049, Rev. St. 1913. By this statute no motor vehicle is allowed to be operated at a greater speed than 12 miles an hours in any city or village, or at any dangerous rate of speed when not “answering emergency calls.”</p> <p>2. Municipal Corporations: Operation of Motor Vehicles: Liability. When a motor vehicle, the property of the city, is being operated under the directions of the city authorities for the benefit of the . property itself, and not in the performance of any governmental duty, the city will be liable for damages caused by the unlawful operation thereof.</p>

<p>Appeal from the district court for Cedar county: Guy T. Graves, Judge.</p>

<p>Trial: Verdict: •Conformity. Evidence examined, and held that the verdict does not respond to the evidence or the law as given in the court’s instructions.</p>

<p>1. Remainders: Adverse Possession. The possession of land by one ■ who holds under a void administrator’s deed, the land being sold to pay debts of the estate, will be construed to be hostile and adverse to a remainderman, so as to commence the running of the statute barring action for the recovery of the title or possession of the land, from the time that he knows that the possessor claims the entire estate in his own right, or from the time when, in the exercise of reasonable care for his own rights, he should have known that the land was so held by the one in possession. r</p> <p>2. Life Estates: Life Tenants:- Adverse Possession. “The possession of land by- a life tenant will -not be construed to be hostile and adverse to a remainderman unless the knowledge is clearly brought home to the latter that the life tenant claims the entire estate in his own right, adverse and hostile to any claim or interest in the land by the remainderman or others claiming under him.” Maurer v. Beifschneider, 89 Neb. 673.</p> <p>3. Overruled Cases. Hobson v. Huxtable, 79 Neb. 334, McFarland v. Flaclc, 87 Neb. 452, Helming v. Forrester, 87 Neb. 438, and Bohrer v. Davis, 94 Neb. 367, in so far as they are in conflict with the rule as herein stated, are overruled.</p> <p>4. Evidence: Presumptions: Administrator’s Sale: Consent of Minors. On the trial of the case, a transcript of the proceedings in the district court, leading up to the administrator’s sale and confirmation thereof, was introduced without objection, which showed written consent upon the part of certain of the remainder-men, then minors, to the sale. The original document was not introduced. Held, that this constituted presumptive evidence that the consent purporting to be signed by them was a genuine instrument.</p> <p>5. Infants: Estoppel: Administrator’s Sale. Upon becoming of age, it became the duty of such remainderman to affirm or dis-affirm the sale. Failure to disaffirm such sale within a reasonable time after maturity would constitute an estoppel against them from disputing the title of the purchaser at the sale.</p>

<p>Appeal, from the district court for Dodge county: Frederick W. Button, Judge. •</p>

<p>Appeal from the district court for Dodge county: Frederick W. Button, Judge.</p>

<p>1. Attorney and Client: Good Faith. It is a familiar rule of law that an attorney is required to exercise the utmost good faith in all of his relations and dealings with his client.</p> <p>2. -: -. The evidence examined, and held that defendants, who are attorneys, did not violate the forgoing rule in their relations with their client, and that their conduct in the premises was without fraud.</p>

<p>Appeal from the district court for Lancaster county: P. James Cosgrave, Judge.</p>

<p>Appeal: Presumptions. Upon appeal all presumptions are in favor of the correctness of the judgment of the district court. If the record does not show affirmatively that the judgment is wrong, it will ordinarily be affirmed.</p>

<p>Appeal from the district court for Nemaha county: John B. Raper, Judge.</p>

<p>Appeal from tbe district court for Nemalia county: John B. Raper, Judge.</p>

<p>1. Criminal Law: Refusal of Instruction. It is not error to refuse a requested instruction confined to a proposition of law correctly stated to the jury in another form.</p> <p>2. Information: Indorsement of Witness. Under the Criminal Code as amended in 1915, it is within the discretion of the court to permit the county attorney to indorse on the information, after the trial has commenced, the name of an additional witness. Laws 1915, ch. 164.</p> <p>3. Criminal Law: Instructions. Where the charge to the jury, considered as a whole, correctly states the law, the verdict will »ot be reversed by the appellate court merely because a single instruction, when considered separately, is incomplete.</p>

<p>1. Common Law: Law of State. Any provision of the common law of England that is inconsistent “with any law passed or to be passed by the legislature of this state” is not made the law of ' this state by section 3697, Rev. St. 1913.</p> <p>2. Deeds: Construction. Every instrument conveying real estate or interest therein must be construed so as “to carry into effect tho true interest (intent) of the parties, so far as such intent' can be collected from the whole instrument,” if the intent is not an unlawful one. Rev. St. 1913, sec. 6195. This applies to deeds as well as other instruments, and so far abrogates the rule in Shelley’s case.</p> <p>3. -: -: Life Estate. Applying these rules, the granting clause of the deed involved in this case is construed to com vey to the grantee a life estate with remainder to his heirs.</p>

<p>1. Appeal. The fact that the plaintiff has recovered a judgment in a foreign jurisdiction upon a judgment rendered in this state will not require this court to dismiss an appeal regularly taken from the original judgment, or from a judgment in an action in equity to vacate the former judgment.</p> <p>2. Judgment: Vacation: Effect on Foreign Recovery on Domestic Judgment. In such case, if the original judgment is set aside and final judgment entered in favor of the defendant in the original . action, the judgment in the foreign jurisdiction will be voidable.</p> <p>3. Process: Sheriff’s Return: Presumption. When a judgment is attacked collaterally, or when a long time after the judgment is entered the correctness of the sheriff’s return is assailed, great faith and credit must be given to the formal return of the officer.</p> <p>4. Judgment: Suit to Vacate: Service of Process: Evidence. In an action to set aside the service and the judgment entered therein, if the validity of the service depends upon the facts, and the officer and the persons present when the supposed^ service is made testify in detail as to the facts of service, and the preponderance of the evidence shows that no legal service was made, the service and judgment will be set aside and a new trial ordered.</p> <p>5. Process: Service of Summons: Evidence. If the officer hands the copy of the summons to the defendant, and immediately retakes it and does not return it to defendant, the proof must show that the defendant knew, or had reason to suppose, that it was a summons for her, and that she had been sued, or such service will be invalid.</p>

<p>1. Counties: Contracts: Bonds. It is the duty of a county board, in letting a contract for the construction of a county building, to take a bond of the contractor conditioned as required by section E840, Rev. St. 1913.</p> <p>2. -: Contractor’s Bond: Liability for Materials. A contractor for the construction of a public building who purchases material from a dealer who has no contract for the construction of any part of the building, and pays such dealer therefor in.good faith, without notice of any liability of such dealer, will not be liable on his bond under section 3840, Rev. St. 1913, to the manufacturer or jobber from whom such dealer may have purchased such material.</p> <p>3. -: -: -. In such case the manufacturer*'or jobber who has notice that the contractor is purchasing the materials from the dealer and paying him therefor in good faith, and makes no objection to such payment, will not be allowed to recover on the contractor’s bond for any balance of the selling price that may be due him from such dealer.</p>

<p>Appeal from the district court for Sheridau county: William H. Westover, Judge..</p>

<p>1. Judgment: Satisfaction. Where the plaintiff has recovered more than one judgment for the same injury against persons jointly and severally liable to him therefor, the acceptance of satisfaction of any one of them by the plaintiff is a satisfaction of all the others, except the costs, and is a bar to any other action for the same cause.</p> <p>2. Appeal: Plea in Abatement. This court has jurisdiction to entertain a plea in abatement by reason of matters happening after the appeal to this court has been perfected.</p>

<p>Appeal from tbe district court for Cass county: James T. Begley, Judge.</p>

<p>Appeal from the district court for Richardson county: John B. Raper, Judge.</p>

<p>Witnesses: Impeachment: Exclusion of Evidence. It is error to exclude evidence which has a tendency to impeach a witness on a material fact sworn to by him, the proper foundation having been laid therefor.</p>

<p>1. Criminal Law: Trial: Instructions; “Reasonable Doubt:” Prejudicial Error. In a criminal prosecution an instruction contained the following language: “You are instructed that, concerning the term ‘reasonable doubt’ as the same has hereinbefore been used, you are instructed that as a matter of law the doubt which a juror is allowed to retain on his own mind, and under which he should frame his verdict of not guilty, must always be a reasonable one. A doubt produced by undue sensibility in the mind of any juror in view of the consequences of his verdict is not a reasonable doubt. And a juror is not allowed to create sources or materials of doubt by resorting to trivial or fanciful suppositions and remote conjectures as to possible states of facts differing from that established by the evidence.” This language has heretofore been disapproved by this court, and under Die circumstances in the present case it is deemed prejudicially erroneous.</p> <p>2. -: Receiving Property with Unlawful Intent: Sufficiency of Evidence. The evidence examined and discussed in the opinion, and held insufficient to support á judgment of conviction of the crime charged in the information.</p>

<p>Appeal from the district court for Saline county: Leslie G. Hurd, Judge.</p>

<p>Attorney and Client: Fees: Services Beneficial to Stockholders. Where by the services of attorneys, duly retained by trustees appointed by the court for the benefit of the creditors and stockholders of a corporation whose charter has lapsed, property is preserved, their fees should be paid from the fund in the hands of the court.</p>

<p>Error to the district court for Scott’s Bluff county: Ralph W. Hobart, Judge.</p>

<p>Appeal from the district court for Red Willow county: Ernest B. Perry, Judge.</p>

<p>1. Executors and Administrators: Right of Appeal. An administrator as such cannot appeal from the final order of distribution unless he is pecuniarily affected in his representative capacity. Rev. St. 1913, sec. 1498.</p> <p>2. -: Distkibution. “An administrator wbo undertakes, without an adjudication of heirship, to distribute funds in his hands as the residue of an estate administered by him, assumes the responsibility of making distribution to the proper persons.” Bodies v. Ferguson, 55 Neb. 565.</p> <p>3. -: -: Appeal. An administrator who, without having procured an order naming the distributees, distributes the proceeds of a judgment recovered by him for the death of intestate, cannot in his representative- capacity appeal from the final order directing distribution to other persons.</p>

<p>Appeal from the district court for Douglas county: George A. Day, Judge.</p>

<p>Appeal from the district court for Douglas county: Lee S. Estelle, Judge.</p>

<p>Appeal from the district court for Douglas county: Lee S. Estelle, Judge.</p>

<p>Appeal from the district court for Madison county: Anson A. Welch, Judge.</p>

<p>1. Continuance: Diligence. Ordinarily a party who fails to have a subpoena issued for a necessary witness and relies upon the latter’s promise to appear and testify has not exercised such diligence as requires a continuance in case the witness fails to keep his promise.</p> <p>2. -: -. The nonattendanee of witnesses subpcenaed by plaintiff when the trial commenced is not of itself sufficient ground for a continuance at the request of defendant who relied upon plaintiff’s efforts to procure the attendance of such witnesses.</p> <p>3. New Trial: Newly Discovered Evidence. “A new trial should not be granted a party on the ground of newly-discovered evidence, unless he makes it appear that the newly-discovered evidence is material for him, and that he could not by the exercise of reasonable diligence have discovered and produced it at the trial.” Ounningham v. State, 56 Neb. 691.</p> <p>4. Appeal: Conflicting Evidence. Where there is a conflict of testimony, and the jury might have reached a different conclusion from that which they returned in their verdict, but the evidence sustains the verdict, and the case is not shown to have been properly tried, the verdict will not be set aside unless it is clearly wrong.</p>

<p>Error to the district court for Sioux county: William H. Westover, Judge.</p>

<p>Appeal from the district court for Red Willow county: Ernest B. Perry, Judge.</p>

<p>Appeal from the district court for Kearney county: Harry S. Dungan, Judge.</p>

<p>1. Railroads: Injury to Occupant of Automobile: Contributory Negligence. Under the circumstances in this case, one who by invitation rode in an automobile driven by another and remained in it, with knowledge that it was approaching a dangerous railroad crossing, without requesting the driver to stop or to take ether necessary precautions to avoid danger, was guilty of contributory negligence, and cannot recover for personal injuries sustained from colliding with a passing train, even though no signal by the locomotive bell or whistle was given.</p> <p>2. -: Care Required at Crossings. “It is the duty of a traveler upon a public highway when approaching a railroad crossing to exercise ordinary care, and if he fails to do so and is injured at the crossing by a collision with an engine, and his failure to exercise ordinary care contributed to such injury,, he cannot recover therefor.” Omaha é R. V. R. Co. v. Talbot, 48 Neb. 627.</p> <p>3. -: Accident at Crossing: Recovery: Proof. “To recover for an injury alleged to have been sustained at a railroad crossing by a collision with an engine on account of the neglect of the railroad company to cause a bell or whistle to be sounded as its engine approached such crossing, it is not enough for the injured person to show that he was. injured at the crossing, and that no signal of a bell or whistle was given, and that such default of the railroad company was negligence; but, to recover, the injured person must further show that the default and negligence of the railroad company were the proximate cause of the injury sued for.” Oma.ha & R. V. R. Co. v. Talbot, 48 Neb. 627.</p> <p>4. -:-:-:-. The testimony examined, and held that plaintiff is not entitled under the law to recover for personal injuries sustained.</p>

<p>Appeal from the district court for Merrick county: Frederick W. Button, Judge.</p>

<p>Appeal from the district court for Douglas county: Alexander C. Troup, Judge.</p>

<p>Opinion on motion for rehearing of case reported in 100 Neb. 255.</p>

<p>1. Wills: Construction: Option. An option to purchase property of the estate, whether it he at an appraised value or at a price named or agreed upon, may be created by will.</p> <p>2. -: -: -: Acceptance. A will, bequeathing to ono of the four children one-fourth of the estate for life, with remainder over to her children, and to each of the other children one-fourth of the estate, concluded with a provision as follows: "It is my . will that the said Emma L. Watson (one of the children) shall have the right to take the following described land (here’ follows description) for the sum of $50 per acre, the said Emma L. Riley (Watson) shall be allowed on the said purchase price of said land the sum of $12.50 per acre or if her bequest shall amount to moro than the sum of $12.50 per acre then she shall be allowed upon the said sum of $50 per acre the sum of her entire inheritance to be deducted from said sum of $50 per acre.” A codicil contained the following words: “I give and bequeath to my daughter, Emma Watson, the strip (describing a narrow strip) in addition to and as a part of the farm bequeathed to her in the said will, and on the same terms and conditions.” Emma ’ accepted the devise and offers to pay to the other heirs the $50 per acre as provided in the will. This ofEer is declined by the other heirs. Emma brings suit to quiet title. Held, that by the acceptance and offer the title to the land vested in Emma, subject to the amount then due from her to the estate.</p>

<p>Error to the district court for Dodge county: Frederick W. Button, Judge.</p>

<p>1. Master and Servant: Employers’ Liability Act: Dependent. In the meaning of the employers’ liability act (Rev. St. 1913, secs. 3642-3696), dependency is not based solely upon a present legal obligation to support.</p> <p>2. -: -: -. Evidence examined, discussed in the opinion, and held that plaintiff is a dependent within the meaning of the act.</p> <p>3. -: -: -. Under the employers’ liability act, tho question of dependency is not determined by the fact that a decedent had or had not actually contributed to the support of a parent before the date of the accident.</p>

<p>Appeal from the district court for Douglas county: Charles Leslie, Judge.</p>

<p>Courts: Jurisdiction: Heirship. The county court has jurisdiction, in the final settlement of the estate of deceased persons, to determine the persons who are the heirs of the deceased, and its judgment in this respect, if the jurisdictional prerequisites have been complied with, is final and conclusive. Fischer v. Sklenar, p. 553, post.</p>

<p>1. Descent and Distribution: Adjudication of Heirship. A finding in a decree for final distribution of tbe estate of a deceased person that a certain person is the sole heir of the deceased, and an order assigning the estate of the deceased to the person so found to be the heir, complies with the provisions of sections 1494, 1495, Rev. St. 1913, and is a sufficient adjudication of heirship.</p> <p>2. Judgment: Collateral Attack: Probate Court. Upon its probate side a county court is a court of general jurisdiction, and its judgment upon matters of probate and of settlement and distribution of the estates of deceased persons made upon due and proper notice is final and cannot be collaterally attacked.</p> <p>3. Courts: Jurisdiction: Heirship: Title to Realty. The prob'ate court in the settlement of an estate has jurisdiction to find and determine who are the heirs of the decedent. In so doing the court does not determine the title to real estate. The statute of descent passes the title upon the fact so found. The final determination of such fact by the probate court is binding upon all parties interested in the estate, unless it is set aside upon appeal.</p> <p>4. Aliens: Lands: Time for Disposition: Question for Court. Under art. II of the treaty of 1848 with Austria-Hungary (9 U. S. St. at Large, p. 945) alien heirs are allowed a term of two years in which to sell lands which they acquire, “which term may be reasonably prolonged, according to circumstances.” The question as to the reasonableness of the prolongation is a matter for the courts to determine. Pierson v. Lawler, 100 Neb. 783.</p> <p>5. Treaties: Construction. Treaties should be construed liberally in order that justice may be done to citizens or subjects of the contracting parties.</p> <p>6. Aliens: Disposition of Land: Extension of Time. Where the circumstances make it reasonable that such aliens should have further time than the two years prescribed in which to sell their interest in the real estate, such further time as may be reasonable under all the circumstances of the case should be allowed.</p> <p>7. -: -: -. Under the circumstances set forth in the opinion, a period of between eight and nine months After the expiration vof two years from the death of the person from whom the estate passed 'is held to be a reasonable prolongation.</p>

<p>Appeal from the district court for Lancaster county: William H. Westover, Judge.</p>

<p>Appeal from.the district court for Lancaster county: Willard E. Stewart, Judge.</p>

<p>Error to the district court for Hall county: James N. Paul, Judge.</p>

<p>Appeal from tbe district court for Douglas county: Lee S. Estelle, Judge.</p>

<p>1. Appeal: Motion eor New Trial. If the motion for a new trial does not challenge the attention of the trial court to the inadequacy of the verdict, the point .will not he considered on appeal.</p> <p>2. -: Instructions. “Instructions relating to the right to recover, and having no bearing on the quantum of damages, cannot be complained of by the plaintiff when the verdict was in his favor, and unsatisfactory only in its amount.” Hankins v. Majors, 56 Neb. 299.</p>

<p>1. Appeal: Instructions: Review. Where instructions have been given by the district court upon the request of one of the parties to the suit, he will not afterwards be heard to complain in. this court on appeal that the instructions were erroneous.</p> <p>2. Libel: Qualified Privilege. The law with regard to qualified privilege, and the necessary elements which must be shown in order to uphold a verdict for libel in such a case, laid down in the former opinion, is adhered to.</p> <p>3. Instructions examined, and held to be in accordance with the law of the case.</p> <p>. 4. Libel: Damages: Evidence. The condition and situation in life of one injured by a libel may be shown in evidence, and may be considered by the jury upon the question of the amount of damages.</p>

<p>Appeal from tbe district court for Adams county: Harry g. Dungan, Judge.</p>

<p>Rehearing of case reported in 100 Neb. 525.</p>

<p>1. Contracts: Married Women: Foreign Contracts. Our statute, so far as It limits the right of a married woman to contract except in reference to her separate property, has no application to a note executed in and governed by the laws of another state, where she “may make any contract, which she could make if unmarried, and shall be bound thereby.”</p> <p>2. Pleading: Action on Note. If the plaintiff, in addition to the necessary allegations in a petition upon a promissory note, alleges that he is an innocent purchaser thereof for a valuable consideration before maturity, such allegation does not constitute his cause of action. It is a plea in avoidance of anticipated defenses, and is usually reserved for the reply.</p> <p>3. -: -. In such case, if the defendant answers special defenses against the note, the plaintiff in reply may' allege facts in avoidance of such defenses.</p> <p>4. Evidence: Expert Evidence: Questions of Law. The question whether an offered title is marketable may be a question of mixed law and fact, but is generally a question of fact. When questions of law. are involved, expert testimony is peculiarly applicable.</p> <p>5. Appeal: Law Action: Findings by Court. When, in a jury trial, the trial court with the consent of all parties tries a particular question oí* fact involved, his finding thereon will be entitled to the same force as a finding of the jury, and will not be disturbed upon substantially conflicting evidence unless clearly wrong.</p> <p>6. Trial: Direction of Verdict. When there is no substantial conflict in the evidence upon matters to be submitted to the jury, so that a verdict for the defendant upon those matters could not be sustained, it is the duty of the court to instruct for the plaintiff upon those issues.</p>

<p>Appeal from the district court for Platte county: George H. Thomas, Judge.</p>

<p>Appeal from the district court for Holt county: Robert R. Dickson, Judge.</p>

<p>Appeal from the district court for Cuming county: Guy T. Graves, Judge.</p>

<p>Divorce: Alimony: Receivership. Preliminary to making the order for the appointment of a receiver of the husband’s property, provided for in section 1589, Rev. St. 1913, there must he an order, also provided for in said section, requiring the husband to give security for payments of . alimony, according to the terms of the decree, and a failure or refusal upon his part to give such security.</p>

<p>1. Homicide: Common Design. When two or more, in furtherance of a common design, enter upon the perpetration of a burglary, armed and prepared to kill if opposed, and while so engaged are discovered, and in the effort to escape one of the burglars shoots and kills one who is trying to arrest him, all are equally guilty of the homicide, although one of them, who was not armed with a deadly weapon, escaped before the shooting, and such killing was not part of the prearranged plan.</p> <p>2. Instruction set out in the opinion, while not approved of, field not 'to have been prejudicially erroneous.</p>

<p>Fraudulent Conveyances: Conveyances between Relatives. A transaction involving a conveyance of land between near relatives will, in a proper case, be closely scrutinized to discover if such conveyance was made fraudulently, or for the purpose of hindering, delaying or defrauding creditors or those to whom the vendor may subsequently become indebted.</p>

<p>Error to tlie district court for Cedar county: Guv T. Graves, Judge.</p>

<p>Appeal: Technical Errors. A judgment will not be reversed merely on account of a technical error which does not affect the substantial rights of the appellant.</p>

<p>Appeal from the district court for Dakota county: Guy T. Graves, Judge.</p>

<p>1. Landlord and Tenant: Lease: Construction. A farm lease, “for the term of one year with the privilege of three years subject to sale,” construed to authorize lessor, by means of sale and notice, to terminate the tenancy at the end of any rental year during the three-year period.</p> <p>2. Forcible Entry and Detainer: Riqht op Possession. In an action of forcible detainer, the contest is limited to the naked right of possession.</p>

<p>1. Schools and School Districts: High Schools: Policy of State. It is the established policy of tho people of this state through their legislature to furnish free high school education to all the youth of the state without distinction or discrimination.</p> <p>2. -: -: -. The law requires each county of the state to establish a high school, if necessary, so that all the youth of the county can have free high school privileges. And there is no statute requiring that the parents of children qualified for and entitled to high school privileges shall bo required to pay for such privileges for their children.</p> <p>3. -: -: Tuition. If a resident of a school district having no free high school applies under the statute to the county superintendent “for freo high school education” in an adjoining district having such high school, and the superintendent upon investigation makes the necessary certificates for that purpose, and the children of 'school age having such certificates attend such high school without objection or question on the part of the school officials, the law will not imply an agreement on the part of their parents to pay for such privileges. The law will not imply that which the evidence clearly shows did not exist.</p>

<p>1. Municipal Corporations: Firemen: Compensation. The statutes reserve to the state the right to fix the compensation of firemen in cities of the metropolitan class.</p> <p>2. -: --•: -. Section 4210, Rev. St. 1913, as amended by chapter 77, Laws 1915, fixes the compensation of firemen in metropolitan cities, and the city authorities have no power to provide different compensation.</p>

<p>Appeal from the district court for Cass county: James T. Begley, Judge.</p>

<p>Master and Servant: Employers’ Liability Act: Accident. Evidence examined, and found sufficient to sustain the finding and judgment of the district court. Held, that the death was an accident within the meaning of the definition given in the employers’ liability act (Laws 1913, ch. 198, sec. 52), and that such death grew out of the decedent’s employment by the defendant.</p>

<p>Appeal from the district court for Douglas county: George A. Day, Judge.</p>

<p>Appeal from tlie district court for Harlan county: Harry S. Dungan, Judge.</p>

<p>Statute of Frauds: Sales: Payment by Check. In the absence of proof that a check given to the seller hy the purchaser was given under agreement that it should constitute payment or part payment of the price, rather than the means of payment, the check (neither paid nor presented for payment, but tendered back to the maker the day after) was not such payment as to take the sale out of the statute of frauds.</p>

<p>1. Negligence: Care Required. One should in his movements exercise ordinary care for the safety of others, but in doing so he has a right to assume that others will govern their movements as ordinary persons do in exercising care for their own safety. Only those dangers and perils reasonably to be anticipated have to be provided against.</p> <p>2. Master and Servant: Injury to Servant: Contributory Negligence. A railroad company, in ordering the movements of its cars, would not anticipate that two men would engage in scuffling upon its track, especially so when the men were its employees, working in its switch-yards and momentarily expecting the approach of cars.</p> <p>3. -: -: Duty oe Master. A railroad company does not owe its employees, engaged in its yards in which engines are constantly moving, the duty of keeping a constant lookout to warn them of dangers of which they already have knowledge.</p> <p>4. -: Rums-Governing Service: Construction. A rule of a railroad company, susceptible of two constructions but which has never by the railroad company been given the construction contended for by the party asserting it, which is contrary to the custom always followed, and which rule was not relied upon by the party, will not be given such construction by the courts.</p> <p>5. Trial: Witnesses: Examination: Improper Argument. A party surprised by the testimony of a witness, whom he has called, may in the discretion of the court be allowed to interrogate him with respect to previous inconsistent statements for the purpose of probing his recollection and to give him an opportunity to correct his mistake, if he has made one, and also to show, so far as may be, the circumstances which induced the party to call the witness. He is not permitted, however, to prove contradictory statements of his own witness and discredit him, and it is improper for counsel in argument to go outside the evidence and assert, as of his own knowledge, contradictory statements of the witness.</p>

<p>Appeal from tlie district court for Morrill county: Ralph W. Hobakt, Judge.</p>

<p>Appeal from tbe district court for Douglas county: Alexander C. Troup, Judge.</p>

<p>Appeal from the district court for Cheyenue county: Hanson M. Grimes, Judge.</p>

<p>Appeal from the district court for Adams county: Harry S. Dungan, Judge.</p>

<p>Appeal from the district court for Morrill county: Ralph W. Hobart, Judge.</p>

<p>1. Appeal: Dismissal: Extrinsic Evidence. An appeal by tbe plaintiff may be dismissed, where, .during its pendency, without any fault of the defendant, an event occurs to prevent the appellate court from granting plaintiff any effectual relief in case of a decision in his favor, and an event of that nature may he shown hy extrinsic evidence.</p> <p>2. -: -: -. An appeal hy a taxpayer from a dismissal of his suit to oust a county commissioner for misdemeanors in office may he dismissed, where it is shown that the official term of defendant expired pending the appeal, that another holds the office, that no effort was made to advance the appeal for a hearing during the incumbency of defendant, and that he did not prevent an early hearing.</p>

<p>Bills and Notes: Invalid Principal: Recovery on Collateral. If a plaintiff has no interest in the note sued upon except as collateral security for a note held by him, he cannnot recover on the collateral if the principal note is wholly invalid.</p>

<p>Appeal from the district court for Lancaster county: P. James Cosgrave, Judge.</p>

<p>Action: Parties: Real Party in Interest. The evidence examined, and found not to sustain the verdict and judgment.</p>

<p>Appeal from tbe district court for Douglas county: George A. Day, Judge.</p>

<p>1. Appeal in Equity: Trial de Novo. “Upon appeal in actions in equity, this court is required by tbe statute to try tbe issues de novo, without reference to findings of the trial court; but, when tbe testimony of witnesses orally examined before the court upon tbe vital issues in tbe case is conflicting, so that it would be impossible that both versions of tbe transaction can be true, this court will consider tbe fact that tbe trial court observed tbe witnesses and their manner of testifying, and must have accepted one version of tbe facts rather than tbe opposite.” Shafer v. Beatrice4State Bank, 99 Neb. 317.</p> <p>2. Evidence examined, and held to support tbe finding and judgment of tbe district court.</p>

<p>Appeal from tbe district court for Douglas county: Willis G-. Sears, Judge.</p>

<p>Appeal from tbe district court for Burt county: George A. Day, Judge.</p>

<p>Error to the district court for Douglas county: Willis G. Sears, Judge.</p>

<p>1. Wills: Election: Effect. When the husband dies testate, seised of real estate which is the family homestead, and the widow elects-to take under the statute and renounce the provisions made for her in the husband’s will, the court will first award the widow her homestead interest in the homestead property not subject to debts of deceased, under section 3092, Rev. St. 1913, and then award her the share of an heir in the remainder of the property of the estate under section 1265, Rev. St. 1913.</p> <p>2. -: -: -. Where a widow elects to renounce the provisions made for her in the will of her deceased husband and take under the statute, such election does not render the will inoperative. As between other persons it will be enforced as nearly as may be in accordance with the intention of the testator.</p>

<p>Appeal from the district court for Douglas county: Willis G. Sears, Judge.</p>

<p>1. Appeal: Supersedeas: Liability op Obligor. In an action on a supersedeas bond to “abide and perform the judgment or decree rendered or final order which shall be made by the supreme court in the case,” defendants are not liable for rentals and interest, where the superseded judgment does not require, appellant to pay them.</p> <p>2. Specific Performance: Decree: Res Judicata. In a suit for specific performance, all damages growing out of defendant’s breach of contract are litigable, and separate subsequent actions to recover different elements of such damages for the same breach cannot be maintained.</p> <p>3. -: -: -. After full satisfaction of a decree requiring defendant to specifically perform a contract to transfer real estate and personal property to plaintiff, the latter cannot, on account of the same breach, maintain a separate action to recover rents and interest for detention of the same property pending litigation.</p>

<p>1. Divorce: Plea in Abatement. In an action for divorce tlie defendant may plead in abatement another action pending in a court of competent jurisdiction between the same parties and for the same cause, and when so pleaded the court has jurisdiction to try and determine that issue.</p> <p>2. -: -: Failure to Plead. If the husband, as defendant in such action, fails to so plead the former action, and fails to answer or defend against a motion for suit money of which he has due notice in the second action, a final order of the court for the payment of a necessary and reasonable amount as suit money will not be reversed upon appeal.</p>

<p>1. Husband and Wife: Action for Damages: Parties. The interest of a wife in the real estate of her husband, other than the homestead, under section 1265, Rev. St. 1913, is not such as to require that she be made a party in an action by the husband against a corporation with the right of eminent domain to recover damages for the taking of the land or for injury thereto in the construction of a public improvement.</p> <p>2. --: -: -. In such case the husband in his own right can recover the damages caused to the land by such taking.</p>

<p>1. Counties: Commissioners: Term. To comply with the constitutional provision that elections shall he on the even-numbered years, the legislature has fixed the term of county commissioners at four years and named the specific years that shall constitute such terms hereafter. Rev. St. 1913, sec. 1955.</p> <p>2. -: -: Election. That section provides that, in counties having three commissioners, “two commissioners shall he elected in the year nineteen' hundred and fourteen and every fourth year thereafter,” and one “shall be elected in the year nineteen hundred and sixteen and every fourth year thereafter,” hut it does not forbid the election of more than one in the year 1916, if the terms of two commissioners have expired or will expire in the succeeding January. In that case two commissioners should he elected.</p>

<p>Appeal from the district court for Boone county: Frederick W. Button, Judge.</p>

<p>Railroads: Accident at Crossing: Insufficiency of Evidence. Evidence examined, its substance stated in the opinion, and found insufficient to sustain the verdict.</p>

<p>1. Municipal Corporations: Water District: Special Assessments: Appeal. The statutes of this state make no provision for appeal from the equalization and assessment of special taxes by a metropolitan water district, and an attempt to prosecute such an appeal confers no jurisdiction on the district court to review the order • made.</p> <p>2. -: -: Proceedings in Error. District courts Rave jurisdiction to review by proceedings in error an order by the board of equalization of a metropolitan water district.</p>

<p>Appeal from tbe district court for Furnas county: Ernest B. Perry, Judge.</p>

<p>Appeal from the district court for Douglas county: Lee S. Estelle, Judge.</p>

<p>1. Venue: Application por Change: Review. A motion for a change of venue is directed to the discretion of the trial judge, and unless an abuse thereof is disclosed by the record his ruling will not be reversed in the supreme court.</p> <p>2. Identification of defendant as the person who committed the felony charged, held sufficient.</p> <p>3. New Trial: Ruling. Where the presiding judge is unavoidably prevented from ruling on the motion for a new trial, another judge may perform that duty.</p>

<p>1. Divorce: Personal Violence. Although unpleasant relations between husband and wife have been caused by the intermeddling of third parties, and not wholly by the husband himself, such circumstances will not justify him in using personal violence against his wife.</p> <p>2. -: -. The law does not allow a husband to use personal violence against his wife even for her own good. He cannot justify striking or slapping his wife by showing that it was necessary to to do so in order to compel her to go out for a ride for the benefit of her health.</p>

<p>Appeal from the district court for Douglas county: Lee S. Estelle, Judge.</p>

<p>Error to the district court for Grant county: James N. Paul, Judge.</p>

<p>1. Insurance: Additional Insurance. The rule that the taking of additional insurance on property insured, without the consent of the company, renders the policy void is not obviated by the fact that the original insurance is on a class of property, rather than any particular property.</p> <p>2. -; Unearned Premium. “When an insurer has elected to treat a policy of insurance as void for breach of condition providing for a forfeiture, the assured has no claim upon the company for any unearned premium.” Home Fire Ins. Co. v. Kuhlman, 58 Neb. 488.</p> <p>3. -: Policy: .Construction. What is known as the “pro rata clause” in a policy of insurance, providing that concurrent insurers of the property shall share the loss, if any, applies only in ease the defendant’s policy is valid, and does not constitute a waiver of a provision for forfeiture in case of additional insurance being taken without the consent of the company.</p>