Volume 102 — Nebraska Reports

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

<p>1. Negligence: Contributory Negligence oe Child: Question for Jury. As a general rule, whether a child 11 years of age is of sufficient 'knowledge, discretion and appreciation of danger that it may be held guilty of contributory negligence is a question for the jury to determine.-</p> <p>2. -: Question for Jury. Evidence set forth in the opinion examined, and held to justify the submission to the jury of the question as to the negligence of defendant’s employees.</p> <p>3. Municipal Corporations: Collision at Street Intersection: Negligence: Question for Juey. The mere fact that a motor truck is driven by defendant’s employees at a greater speed than that prescribed by statute, or that the plaintiff in turning into another street to the left did not turn around the center of the intersection of the two streets, does not establish either negligence or contributory negligence as a matter of law, but the violation of the statute and of the ordinance may be considered by the jury as evidence of negligence.</p>

<p>Appeal from the district court for Lancaster county: Albert J. Cornish, Judge.</p>

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

<p>1. Master and Servant: Workmen’s Compensation Act: Compensation: Accident. Under the Nebraska statute, compensation can only be made for personal injuries or for the death of an employ, “by accident arising out of and in the course of employment” and unless a disease is traceable to an “accident” as defined in section 3693, Rev. St. 1913, the law does not award compensation.</p> <p>2. -: -: -: Disease. A disease arising from the ordinary incidents of an occupation and which may reasonably be said to be the result of an occupation is expressly excepted by said section of the act and no recovery can be had for disability occasioned thereby.</p>

<p>Appeal from the district court for Lancaster county: Albert J. Cornish, Judge.</p>

<p>1. Process: Constructive Service: Ajtjtdavit. “An affidavit for constructive service upon unknown heirs, under section 83 of the Code, must be made by the plaintiff himself, if an individual, and not by his attorney, and must be verified positively.” Moran v. Catlett, 93 Neb. 158.</p> <p>2. Foreclosure of Tax Lien: Jurisdiction: Recital in Decree. A recital in the decree rendered in an action to foreclose a tax lien brought against a nonresident, that the court finds due and legal notice of the filing and pendency of the action was given to the defendants, will not supply the lack of facts necessary to confer jurisdiction. Duval v. Johnson, 90 Neb. 503; McKenna v. Pleasant, 96 Neb. 581.</p> <p>3. Evidence; Presumption: Judicial Proceedings. An alleged presumption in favor of the regularity of the proceedings of the court cannot be made to contradict the record itself.</p> <p>4. Appeal: Law of the Case. A decision of this court on a former appeal of a question presented by the record becomes the law of the case, and such question will not ordinarily be re-examined on a subsequent appeal. Mead v. Teschuclc, 57 Neb. 615.</p>

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

<p>1. Highways: Action for Damages: Instructions. In an action to recover damages alleged to have been sustained because of an automobile accident, it is not reversible error for the court to instruct the jury by quoting so much of the statute as relates to the evidence.</p> <p>2. Trial: Instructions. A judgment of the district court should not be reversed because of the failure of that court to embody all of the disputed questions of law in a single instruction. It is sufficient if the instructions considered together fairly and properly submit all disputed questions to the jury.</p> <p>3. Trial: Contributory Negligence: Instructions. It is the duty oí the court in a personal injury case where contributory negligence is • pleaded to instruct the jury in such a manner as to eliminate that question where there is no evidence to sustain such a plea.</p> <p>4. Damages. Evidence examined, and held sufficient to sustain the judgment and that the same is -not excessive.</p>

<p>1. Statute of Frauds: Contract: Construction. An oral contract for services, the consideration to be paid when the promissor shall receive his anticipated share out of the estate of his father, not yet deceased, construed as intended merely to fix the time of payment, and not within the statute of frauds relating to contracts creating an interest in land.</p> <p>•2. Contracts: Estate Not in Esse. Nor is such contract an attempt by an heir to contract with reference to an estate not in esse.</p> <p>3. Limitation of Actions. Nor is action upon such contract barred by the statute of limitations when commenced within four years from , the time the father died.</p> <p>4. Contracts: Attorney and Client: Public Policy. The fact that part of the services rendered as an attorney for an amount agreed upon consisted in defending the promissor on a charge of perjury, alleged to have been committed in the trial of the main action for which the services were employed, will not render the agreement void as against public policy, such defense not being pleaded, and there being no evidence that either of the parties, at the time the contract was entered into, contemplated that perjury would be committed or charged.</p>

<p>1. Waters: Irrigation: Maintenance Fee. Under the written contract granting a water right, described in the opinion, the defendant did not promise to pay a maintenance fee to the irrigation company before using the water and is not liable to the company on the contract for maintenance fees before he commences taking the water provided for.</p> <p>2. Irrigation Contract. 'Whether such contract might be held to be discriminatory and void is not within the issues, and not decided.</p>

<p>1. Divorce: Alimony. In a divorce action where alimony is prayed for by a wife, all of the issues that are properly presented by the pleadings and supported by the testimony are to be considered in arriving at the amount of the award.</p> <p>2. -: -: Trustee. Where a decree of divorce and alimony is granted to a wife on grounds other than adultery, the court is not warranted in placing such alimony in the hands of a trustee, in the absence of a proper showing of necessity therefor. In such case section 1581, Rev. St. 1913, does not apply.</p> <p>3. -: Custody of Children. In awarding the custody of a minor child the court will look to the best interests of the child.</p> <p>4. -: -: Alimony. The record examined, and held, the decree of the trial court must be sustained in part and modified in part.</p>

<p>1. Trial: Instructions. It is reversible error for tbe trial court to fail to instruct tbe jury respecting tbe law that is-applicable to tbe material issues that are raised by tbe pleadings and that are supported by tbe proof.</p> <p>2. Contracts: Action for Services: Instruction. Where, in an action brought to recover for professional services, defendant pleaded a total failure of consideration, and where there was proof that tended to support such plea, and where defendant sought to recover a payment made to plaintiff by him to apply on account of such services, the court should in such case have instructed the jury that, if they found from the testimony that there was a total failure of consideration, in such event their verdict should be in favor of defendant and the amount of his recovery should be the amount that he had paid to plaintiff, with interest.</p> <p>3. -: --. Where defendant made a payment to plaintiff to apply on account of professional services, a part of such services having been performed and a part to be thereafter performed, in an action by plaintiff to recover for such services it is error . for the court to fail to instruct the jury that if they found for plaintiff they should deduct from their verdict the amount so paid by defendant.</p> <p>4. Trial: Instruction: Interest. Where a prevailing party to an action is entitled to any interest, it is error for the court to fail to instruct the jury respecting the rate of interest that it may assess in its verdict.</p>

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

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

<p>1. Infants: Process: Service oe Summons. Where suit is brought by a father against his minor children, under 14 years of age, for the partition of lands in which they are tenants in common, service of summons on the minors, and on tne plaintiff in the suit, as their father and guardian and the person with whom they reside, is sufficient to confer jurisdiction on the court to appoint a guardian ad litem, and, if subsequent proceedings are regular, to decree the partition and sale of the land and divest the title of the minor defendants.</p> <p>2. -: Guardian ad Litem: Appointment. In the appointment of a guardian ad litem, for a minor, there is imposed upon the court a special duty to guard the interests of the minor, and the guardian ad litem ought not to be selected at the suggestion of interested parties, but upon the independent judgment of the court.</p>

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

<p>Officers: Clerks oe District Courts': Naturalization Fees. The Nebraska, statute enumerating the fees chargeable by the clerk of the district court for his services, allowing him to retain a specified sum annually and requiring him to pay the excess into the county treasury, did not require him to account to the county for naturalization fees which he was authorized to collect and retain under the act of congress. Rev. St. 1913, sec. 2429.</p>

County Court: Time for Appeal. An appeal from the county court or , justice of the peace to the district court must be tahen within 30 days as provided in -section 8453, Rev. St. 1913, unless prevented by some act or neglect of the court. Appeal from the district - court for Douglas county: Lee S. Estelle, Judge.

<p>1. Insurance: Construction of By-Law: Right to Recover. Under the quoted provisions of defendant’s by-laws, when a certificate holder . dies, within 26 weeks from the receipt of an injury from which blood poisoning develops and causes his death, the beneficiary is entitled to recover the full amount specified under section 9a of the by-laws.</p> <p>2. -: Accident : Notice. Under the provisions of defendant’s by-laws, quoted in the -opinion, the time within which a certificate holder must give notice of an accident does not begin to run until such time as he has reason to believe that the injury received will constitute a claim under his certificate.</p> <p>3. -: -: -. Held, that notice was given within the time required by the by-laws. '</p> <p>4. -: Costs:-Attorney’s Fees. When plaintiff recovers a judgment on a contract of insurance, he may have taxed, by the trial court, a reasonable attorney fee as part of his costs, but the amount allowed must be for services in the trial court only. The trial court is not authorized to allow plaintiff an attorney fee for services on appeal. Rev. St. 1913, sec. 3212.</p>

<p>1. Appeal: Dismissal. This court obtains jurisdiction upon appeal by tbe filing of tbe transcript duly certified.. The appeal will not be dismissed for irregularities in tbe praecipe, if first brought to tbe attention of tbe court upon tbe final submission of tbe case, and there is no showing of prejudice.</p> <p>2. Corporations: Misapplication of Assets: Liability. If tbe directors of a joint stock insurance company withdraw a large sum of money from tbe assets of the company and use it for a purpose beyond their powers as directors, they will be personally liable for the loss that tbe cgmpany actually suffers thereby. Their honest belief at tbe time that such action will result in benefit to tbe company will not relieve them from liability.</p> <p>3. -: -: -. - If one of tbe directors of tbe company was absent from the state, and bad no notice of tbe unlawful action of tbe directors, be will not be bound by such action, nor estopped to complain of the same.</p> <p>i. -: -: Ratification. The action of tbe stockholders in winding up tbe affairs of tbe company, after they bad discovered this action of tbe defendants and tbe condition of the company, will not amount to a ratification of the former unauthorized action of tbe directors.</p>

<p>1. Bastardy:' Order eor Support: Imprisonment, When “neglect” to comply with an order is ground for imprisonment until the order is complied with, it is generally held to mean a careless- omission of duty, and not an omission from necessity.</p> <p>2. -: -: -: “Neglect.” The question of ability to comply with an order of court to make payments of money is committed to the sound discretion of the trial court. If the defendant ih bastardy proceedings has been committed to jail, and upon proper application .it is clearly proved that it is impossible to comply with the order, he cannot be longer imprisoned for neglect or refusal so to do.</p>

<p>Bastardy: Settlement: Effect. The mother of an illegitimate child may, by a fair contract of settlement providing for the support of said child, executed before any complaint is filed in court, exclude herself from instituting bastardy proceedings against the putative father who performs the contract on his part.</p>

<p>1. Appeal: Garnishee: Motion to Discharge: Affidavits. Affidavits used on a motion to discharge a garnishee will not be considered in this court unless preserved by a bill of exceptions, and no issue can be raised here as to error in striking such affidavits from the files.</p> <p>2. -: Findings by Court. The finding of the district court upon a question of fact in such a proceeding is entitled to the same weight as the verdict of a jury, and will not be set aside unless manifestly wrong.</p>

<p>Master and Servant: Workmen’s Compensation Act: Liability. Under the facts set forth in the opinion, held that the plaintiff’s deceased did not come to his death by “accident arising out of and in the course of his employment.”</p>

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

<p>1. Constitutional Law: Divorce: Ex Post Facto Law. Chapter 186, Laws 1915, making it a misdemeanor for “any husband, against whom a decree for divorce and alimony for the support of his children shall have been rendered,” to neglect or refuse to comply with the decree, and declaring a penalty therefor, is not in conflict with either -section 10, art. I of the federal Constitution, or section lb, art. I of the Constitution of the state, as ,an ex post facto law.</p> <p>2. -: -: Imprisonment for Debt. The decree of the district court in a divorce suit providing that the husband shall pay to the wife certain instalments each month for the support of their minor child, is not a debt in the ordinary sense of the term, and the act of the legislature of 1915 providing for the imprisonment of the husband for refusal to make such payments is not in violation of the provisions of section 20, art. I of the Constitution of this state, which provides that no person shall be imprisoned in any civil action for debt.</p> <p>3. Information: Sufficiency: Venue. An information whose caption gives the name of the state and the county, and which charges that the designated crime was committed in said county and state aforesaid, alleges the venue with sufficient certainty. 'Dunn v. State, 58 Neb. 807.</p> <p>4. Divorce: Noncompliance With Decree: Prosecution: Venue. A prosecution based on the provisions of chapter 186, Laws 1915, is properly brought in the district court of the county in which the decree in the divorce proceeding was rendered.</p> <p>5. Criminal Law: 'Prosecution: Appointment oe Assistant. Error cannot be predicated in a misdemeanor case on the ground that the county attorney called to his assistance another lawyer without the order of the court.</p>

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

<p>Appeal from the district court for Buffalo county: Bruno O. Hostetler, Judge.</p>

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

This action is brought to recover $976.30 with interest, being the difference between the amount paid plaintiff hy defendant on a policy of insurance and the amount which he claims is due under the terms of the policy. The trial court found for defendant. Plaintiff appeals. . In 1889 plaintiff purchased a semitontine, twenty-payment life insurance policy from the defendant.

<p>Appeal from the district court for Pierce county: Andrew R. Oleson, Judge.</p>

<p>1. Executors and Administrators: Accounting: Estoppel. An administrator was appointed, but filed no inventory. Tbe widow and beirs thereafter consented that the funds belonging to the estate should be paid into a partnership business formerly owned and carried on by the deceased and his son, the administrator, and after the death of the father the business was conducted by the sons; each of the parties, including the widow, drawing'"money from the firm from time to time. There were no debts. No report was ever made by the administrator, nor was one requested for more than 30 years, when the administrator of the widow, who had died a short time before, requested an accounting. Held, that by consent and acquiescence in this course of conduct for so many years the parties had virtually abandoned the administration proceedings, and, while the administrator of the widow is entitled to an accounting from the partnership, he is estopped to, call upon the administrator to account other than to show that all money received was paid into the partnership.</p> <p>2. -; Possession of Reaety. An administrator may take possession and control of the lands and tenements belonging to the estate of his intestate during its settlement; but, unless it is necessary to collect the rents or to sell the land to pay debts, legacies or expenses, he is not compelled to take control of the real estate.</p>

<p>1. Taxation: Tax Sale: Redemption. Under the revenue law of Í879, a person seeking to redeem land from a tax sale was required to begin his action within three years from the making of the tax deed, unless such deed was void on its face, and the period was extended to five years by the revenue law of 1903. Comp. St. 1889, ch. 77, art. I, sec. 134; Comp. St. 1903, ch. 77, art. I, sec. 230.</p> <p>2. Evidence: Tax Deed: Certified Copy. A duly certified copy of an authentic public record of a treasurer’s tax deed, bearing the word “seal,” and containing the recital, “given under my hand and official seal,” is, in absence of evidence to the contrary, sufficient to show the use of such seal, if authorized by statute.</p> <p>3. Taxation: Tax Deed: Validity. A county treasurer could make a valid tax sale under the revenue law of 1879, and he could execute and deliver to the purchaser a valid tax deed under the revenue law of 1903, which preserved to such purchaser all rights acquired by him under the old law. Comp. St. 1889, ch. 77, art. I; Comp. St. 1903, ch. 77, art. I.</p> <p>1. Taxation: Tax Deed: Evidence. A tax deed issued under the act of 1903 upon a private tax sale made under the act of 1879, and which does not contain the statement that the land was first offered at public sale, is not of itself sufficient proof that the sale was in that respect in compliance with the law under which it was made.</p> <p>2. -: Sale foe Taxes: Redemption: Limitations. Such deed so issued will not start the running of the five-year statute of limitations against an action to redeem.</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>Appeal from the the district court for Lancaster county: Albert J. Cornish, Judge.</p>

<p>1. Boundaries: Monuments. The location of original government corners, if clearly established, will control recitals in the original government ’ field notes that may be at variance therewith, and such corners are controlling, no matter how inaccurate they may be nor how erroneously they may be placed.</p> <p>2. -: -. In such case, where a discrepancy is shown as between monuments and measurements, the monuments- control.</p> <p>3. Injunction: Repeated Trespasses. “Equity will afford relief by the process of injunction against repeated acts of trespass, especially where committed under a claim which indicates a continuance and constant repetition of it.” Haohney v. Melnincli, 79 Neb. 128.</p>

<p>1. Notes: Written and Printed Provisions. Where there is a conflict between, the written and the printed provisions of a promissory note, the written provisions prevail. Rev. St. 1913, sec. 5335.</p> <p>2. -: -: Negotiability. Where a promissory note contains the printed words “pay to the order of” immediately before the name of the payee, and the written word “only” immediately after the name of the payee, held, the written word “only” prevails over the printed words “pay to the order of,” and such note is nonnegotiable.</p>

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

<p>1. Courts: County Courts: Jurisdiction. The county court has exclusive original jurisdiction in matters of probate and in the settlement and distribution of the estates of deceased persons.</p> <p>2. Action: Descent and Distribution: Jurisdiction. The district court has no jurisdiction to decide between the conflicting claims of persons alleging they are heirs to the lands of the deceased, and, pending administration proceedings and a decree of heirship in the county court, an action on the part of the state to quiet title to the same, which it asserts by virtue of escheat for want of heirs, should be abated until the determination of the question of heirship in that court.</p>

<p>Electricity: Personal Injubies: Liability. Damages may he ■ recovered for the death of a person who, prompted by a purpose to protect others, was killed in voluntarily attempting to remove from a public street a heavily charged electric wire dangling there as the result of negligence, if he exercised reasonable precautions to protect himself.</p>

<p>Appeal from the district court for Boone county: G-eorge H. Thomas, Judge.</p>

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

<p>1. Master and Servant: Injury to Servant: Liability oe Master. Where a laborer, without experience or previous knowledge of the work, is employed in digging a trench, no instructions or warning as to danger being given him, the failure of the master to shore up or brace the walls of the trench to prevent caving, it being customary and reasonably necessary so to do, and no materials or timbers being furnished to the workmen for that purpose, the sudden caving in of the walls of the excavation, by which the workman is injured, will render the master liable in damages.</p> <p>2. -: Place for Work: Liability. It is the duty of the master to exercise reasonable care to provide his servant with a reasonably safe place in which to work, and a failure to perform such duty, if it results in injury, will render the master liable in damages.</p> <p>3. -: Assumption of Risk. One cannot be held to assume a risk of which he has no knowledge or warning unless such risk is so open and obvious to an ordinary person as to challenge his attention thereto.</p>

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

<p>Limitation of Actions: Nonresident: Presence in State. Where a debtor comes into the state openly, without any attempt at concealment so as to prevent his creditors from knowing of his presence here, and his stay is for a sufficient period to afford requisite time for service of summons upon him, he has “come into the state” within the meaning of section 7577, Rev. St. 1913, even though his coming was at the time temporary in character, and not such as to give him a domicile or residence in this state.</p>

<p>Jury: Qualifications. A juror, in his voir dire examination in a criminal case, answers that’ it will take evidence to remove an opinion which he has formed as to the guilt or innocence of the accused. Held, that such fact will not disqualify him as an impartial juror, required under section 11, art. I, of the Constitution, if such opinion was formed and he is otherwise qualified in accordance with the provision contained in subdivision 2, sec. 9109, Rev. St. 1913.</p>

<p>1. Master and Servant: Action fob Injury: Petition: Sufficiency: Federal Liability Act. A petition in an action against a railroad company for personal injuries to plaintiff while he was in the employ of defendant, stating that defendant was the owner, and was “engaged in the operation of a system of steam commercial railroads traversing the states of Illinois, Iowa, Nebraska, Colorado, and other states,” when not attacked by demurrer or motion, sufficiently alleges the interstate character of defendant so as to bring the cause of action within the federal employers’ liability act. 35 U. S. St. at Large, ch. 149, p. 65.</p> <p>2. Pleading: Amendment: Date of Injury. Plaintiff filed a petition stating a cause of action under the federal employers’ liability act, but erroneously stated the date of the injury. Held proper to permit an amendment that correctly charged the date.</p> <p>3. Limitation of Actions: Amendment of Petition. -In such case, the petition having been filed and service of summons having been made within two years from the date of injury, the cause of action was not barred by the statute of limitations, although more than two years had elapsed between the date of injury and the date of the amendment.</p> <p>4. Master and Servant: Assumption of Risk. In entering upon the work of a boilermaker’s helper, plaintiff assumed the ordinary risks incident to the employment, but he did not assume the risk of injury arising from remaining in a tank for an unusual length of time, under the direction of his superior, if in so doing he acted with ordinary care under the circumstances.</p> <p>5. Evidence discussed in the opinion, and held sufficient to support the verdict of the jury.</p>

<p>Palse Imprisonment: Statements to Officers: Liability. One wbo merely states to an officer what he knows of a supposed offense, without making any charge or requesting an arrest, .does not thereby make himself liable for false imprisonment.</p>

<p>Master and Servant: Workmen’s Compensation Act: Loss of Leo: Compensation. Under a statute providing: “For all disability resulting from permanent injury of tbe following classes, the compensation shall be exclusively as follows: * * * For the loss of a leg, fifty per centum of wages during two hundred fifteen weeks” —and providing also that permanent loss of the use of a leg shall be considered as the equivalent of the loss of a leg, the compensation for the permanent loss of the use of a iég, unaccompanied by other physical injury or loss of health, cannot exceed the amount specified.</p>

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

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

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

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

<p>1. Appeal: Findings: Presumptions. In an action tried to the court without a jury, it will he presumed on appeal that the court only considered competent evidence in its findings and judgment.</p> <p>2. -: -: Evidence. Where the competent evidence in a case so tried is sufficient to sustain the findings and judgment, the admission of incompetent evidence will not ordinarily constitute grounds for a reversal.</p> <p>3. Vendor’s Lien: Sufficiency of Evidence. The evidence examined, its substance stated in the opinion, and held sufficient to sustain the judgment of the district court.</p>

<p>Error to "the district court for Lancaster county: P. James Cosgravb, Judge.</p>

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

<p>1. Regular Army. “The regular army is the permanent military establishment, which is maintained both in peace and war according to law.” 4 U. S. Comp. St. 1916, sec. 1716, p. 3608.</p> <p>2. Elections: Soldibbs: Elective Franchise. An elector of this state who enters the military service of the United States to serve during the existing emergency under the provisions of the act of congress of May 18, 1917, is not in the “regular army” as that term is employed in section 3, art. VII of the Constitution, and may exercise the elective franchise at such places and- under such conditions as may be provided by law.</p>

The Missouri Pacific Railway Company operates a line of railroad from Omaha to' Kansas City and St. Louis. In Nebraska the road runs southward. At the station of Talmage a branch line runs westward to Crete upon the main line of the Chicago, Burlington & Quincy Railroad Company. The length of this branch is 59 miles. The towns intervening between Crete and Talmage have a total population of 1,911.

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

Westover, Judge. The plaintiff avers that it is in possession as lessor' of section 16, township 29, range 39, by virtue of certain leases executed by the stale of Nebraska; that defendant trespassed thereupon, and threatens to sink a pipe line and extract mineral from a lake thereupon; that the lease does not expire until 1925. The prayer is- for an injunction to prevent the trespass and the removal of any mineral water from the lake.

<p>1. Carriers: Deliverymen: Liability. The plaintiff sent a hoy of 18 years with a team and a, wagon to take a load of ice to defendant’s place of business. After this was done, the defendant, without knowledge of the plaintiff, instructed this driver to deliver certain articles for defendant. Held, that the law will not imply authority of the driver to contract for plaintiff that the defendant’s articles should he delivered within a specified time.</p> <p>2. —■-: Neslisence. Upon the evidence indicated in the opinion, it is held that the verdict of the jury, finding that defendant’s damages were not caused hy negligence of plaintiff, is not clearly wrong so as to require a reversal.</p>

<p>Appeal from the district court for Saline county: Ealph D. Brown, Judge.</p>

<p>Interest: Unsettled Accounts. In an action covering unsettled accounts between parties, tbe interest shall not begin to run until after tbe expiration of six months from tbe date of the last item, whether the same shall be a debit or a credit.</p>

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

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

<p>Appeal from the district court for Buffalo county: Bruno O. Hostetler, Judge.</p>

<p>1. Homicide: Evidence: Materiality. Evidence of an intention to commit suicide is not immaterial in a murder case, where deceased was found dead under circumstances not inconsistent with the theory of suicide.</p> <p>2. -: -: -. 'Evidence of declarations by deceased of intention to' commit suicide, or evidence consisting of the written statements of the deceased bearing upon the question of intention to commit suicide, is admissible in a murder case, if introduced solely to show the state of mind or intention of the one making them, at the time they were made.</p>

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

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

<p>Appeal from the district court for Custer county: Bruno O. Hostetler, Judge.</p>

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

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

<p>1. Statutes: Amendment: Constitutional Provisions. Chapter 121, Laws 1915, which amends section 6942, Rev. St. 1913, is germane to the subject of that section, and, as it contains the section so amended and repeals the original section, it complied with the Constitution in that regard.</p> <p>2. -: -: -. Section 1, ch. 121, Laws 1915, is also germane to the act amended, and is valid.</p>

<p>1. Insurance: Indemnity Policy: Notice of Accident. “A provision in an accident indemnity policy that the assured on the occurrence of an accident shall give immediate written notice thereof, with the fullest information obtainable at the time, to the assurer is a reasonable requirement, but the term ‘immediately’ is to be reasonably construed in connection with the attendant circumstances.” Chapin v. Ocean Accident 4' Guarantee Corporation, 96 Neb. 213.</p> <p>2. -: —-: -. In a case where no bodily injury is apparent at the time of the accidental occurrence, and there is no reasonable ground for believing that a claim for1 damages may arise therefrom, the assured is not required to give the insurer notice until the subsequent facts as to injury are brought to his attention, and if notice is given immediately thereafter with full information as to the accident, such notice will be a sufficient compliance with the provision above- mentioned.</p>

<p>1. Pleading: Amendment. It is not error for the district court in furtherance of justice to allow plaintiff to amend his petition to conform to the facts proved on the trial. Blondel v. Bolander, 80 Neh.' 531.</p> <p>2. Evidence examined, and held, sufficient to sustain the decree of thfe district court.</p> <p>3. Appeal: Affirmance. A decree of the district court in a case tried to the court without a jury will not ordinarily he reversed for the admission of some incompetent evidence; the. presumption being that only competent evidence was considered hy the court in arriving at the judgment.</p>

<p>1. Fraud: Petition: Sufficiency. In an action for deceit, a petition alleging that plaintiff exchanged a promissory note, which it then owned, with defendants for a promissory note represented by defendants to be “gilt-edged” and amply secured by mortgage, that these representations were relied upon by plaintiff, that they were false, and the note received was without value, states a cause of action for the face value of the note received.</p> <p>2. Banks and Banking: Authority of Cashier: Estoppel. Where the cashier of a bank negotiates the sale of commercial paper under- circumstances that indicate that he is acting for his bank, and receives in payment thereof a draft made payable to him as cashier, the-bank will be estopped to deny that he was acting in its behalf.</p> <p>3. Evidence examined, and held sufficient to sustain the judgment.</p>

<p>1. Intoxicating Liquors: Information: Sufficiency. In a prosecution under chapter 187, Laws 1917, for having possession of intoxicating liquor, the information need not negative the exceptions under which its possession may be lawful, hut these are available in defense.</p> <p>2. -: Sale: Prohibition. Under chapter 187, Laws 1917, the sale of intoxicating liquors is absolutely prohibited within this state, except as they may be sold under permit issued by the governor to those bringing themselves within the terms of the act, namely, to a wholesale druggist to “sell wine for sacramental purposes to ~bona fide religious organizations or churches qualified to, purchase the same;” and to sell “pure ethyl alcohol to registered pharmacists;” and to “sell to any registered pharmacist owning or conducting a retail drug store, or actually employed in a retail drug store, pure ethyl alcohol and alcohol treated according to some formula permitted by the United States commissioner of internal revenue so as to render it unfit to be used as a beverage;” to any church goods house, having a stock of goods of the value of $25,000, to sell wine for sacramental purposes as in the case of wholesale druggists; to any registered pharmacist to “sell and keep for sale alcohol so treated according to some formula permitted by the United States commissioner of internal revenue so as to render it unfit to be used as a beverage.”</p> <p>3.,-: -: Prohibitory Act: Validity. Section 11, ch. 187, Laws 1917, bears a reasonable relation to the peace and order of the state and to the enforcement of the law designed to prohibit traffic in intoxicating liquors, and is, therefore, a constitutional enactment.</p>

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

<p>1. Mortgages: Dischaege. A note taken for a pre-existing debt -which is secured by a mortgage, the original note not being surrendered or canceled, does not operate to discharge the lien of the mortgage.</p> <p>2. -: Mechanics’ Lien: Priorities. When property is subject to a mortgage at the time of the inception of a mechanics’ lien, such mortgage retains its priority, notwithstanding the value of the mortgage security is increased by the labor and material of the mechanics’ lien claimant.</p> <p>3. -: Renewal: Priority. Priority of a mortgage is not lost by a renewal thereof, when the debt secured is the same, and the property is not released from the lien.</p>

<p>Carriers: Freight Charges: Liability. In a suit brought by a railway company against the consignors, Kinney & Allen, and the consignee, William H. Queenan, it was shown that 36 carloads of hay. were shipped by the consignors, Kinney & Allen, from Newport, Nebraska, to South Omaha, f. o. b., the shipment being made Under the tariff regulations of the Nebraska railway commission, and it being shown that the hay was delivered to the Union Stock Yards Company at the place of destination on Queenan’s order and without collecting the freight charges, and that Queenan had become insolvent. Selcl, that, as shippers, Kinney & Allen were liable for the legal freight charges with Queenan, and that they had not been released.</p>

<p>1. Land Contract: Agreement, to Assign: Rights of Assignee. An agreement to assign a land contract between third parties lor the sale and purchase of real estate is not a contract for the_ sale of land. The assignee of the contract takes only the righrs of the assignor.</p> <p>2. Specific Performance: Review. The evidence reviewed, and found sufficient to sustain the findings and decree of the district court, and the same are adopted by this court.</p>

<p>1. Notes: Consideration: Pleading. The words, “for value received,” in a promissory note import a consideration, and in an action upon the note, although non-negotiable, consideration need not be alleged.</p> <p>2. Fraudulent Sale: Remedies. One who has been fraudulently induced to enter into a sale contract may repudiate the contract, and, tendering back what he has received under it, may recover what he has parted with, or its value; or he may affirm the contract, keeping whatever property or advantage he has derived under jr. and may recover in an action of deceit for damages caused by the fraud. As a general rule, he cannot treat the sale as void, in order to recover the price, and as valid, in order to recover damages, the remedies being inconsistent.</p>

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

<p>1. Fraudulent Conveyances. The facts surrounding a conveyance of land between near relatives will be closely examined, where fraud is charged, to discover if the conveyance was made fraudulently or for the purpose of hindering, delaying or defrauding creditors.</p> <p>2. --: Proof. The fraudulent character of such conveyance may be proved by testimony that is in its nature circumstantial.</p> <p>3. -: Constructive Notice. Where a grantee knows of his grantor’s fraudulent intention, or knows such facts as would put an ordinarily prudent person upon inquiry that would lead to a knowledge of the fraud, such person has constructive, notice of the fraud and is bound thereby.</p>

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

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

<p>Appeal: Supersedeas Bond. Under section 1528, Rev. St. 1913, an executor, administrator or guardian or guardian ad litem is not required to give bond"^ on appeal when the appeal is taken in his representative capacity for the benefit of the estate, or the ward; but when the appeal is taken in furtherance of his individual interests he must give bond like other suitors.</p>

Perry, Judge. Prior to 1915, sales of real estate under mortgage foreclosure proceedings required that the selling officer should ‘ ‘ call an inquest of two disinterested freeholders, who shall he residents of the county where the lands taken on execution are situated, and administer to them an oath impartially to appraise the interest' of the person, or persons, or corporation against whom the execution is levied, in the property so levied upon, and such officer, together…

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

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

<p>Appeal from the State Railway Commission.</p>

<p>Malicious Prosecution: Want of Probable Cause: Evidence. In a criminal proceeding instituted by a private individual before a justice of the peace, the mere discharge of defendant without the participation of a public prosecutor, and without a trial or finding on the merits of the ease, is no evidence of want of probable cause for the filing of the complaint.</p>

<p>1. Drains: Damages., One who sells and conveys to a drainage dis- ' trict right of way' through .land owned by him," and releases the district from all claim for damages by reason of occupancy, and use of the land so conveyed, may recover damages caused' by carelessness and negligence in the construction of the improvement. Such release relates, only to damages caused by proper construction of the improvement.</p> <p>2. Mandatory Injunction: Drainage Improvement. In an action for damages caused by negligence in the construction of such an improvement, a mandatory injunction requiring radical and continual changes in the plan of- construction of the improvement will not be granted without clear proof of the necessity and practicability of such changes.</p> <p>3. Appeal: Trial to Court: Finding. If a jury is waived in such action, the findings of the trial court, as to questions of negligence in the construction of the improvement and damages caused, thereby, are entitled to the same consideration upon appeal as the findings of a jury upon such questions.</p>

<p>1. Dismissal Without Prejudice After Remand. A plaintiff, at any time before final submission, may dismiss his action without prejudice to a new action for the same cause. If the action has been removed to the federal court, and judgment for plaintiff in that court has been reversed by the circuit court of appeals and the cause remanded for further proceedings, and the federal trial court then dismisses the action without prejudice upon motion of plaintiff, such proceedings will not be a bar to a new action.</p> <p>2. Removal of Causes: Reduction of Demand. In such case, the plaintiff may reduce the amount of his claim, and so. prevent another removal to the federal court.</p> <p>3. Drains: Benefits: Notice: Publication. Section 1877, Rev. St. 1913, requires that the notice of the meeting of the directors of a drainage district to apportion benefits shaU “be inserted for at least one week in a newspaper published at the county seat.” Held, that such notice must be published during an entire week immediately before the time specified for the hearing.</p> <p>4. -: -: -. When publication is required for one week, and the notice is for a time less than one week after the week for which publication is made, it is immediately before the hearing within the meaning of this rule.</p> <p>5. -: -: -. These requirements are complied with by publication in a weekly ' paper on ,th.e 3d day of September, of notice of meeting to be held at 8 o’clock in the morning of the 11th, although the paper is also published on the 10th.</p> <p>6. -: Dkainase District: Assessment: Liens. The provision of section 1888, Rev. St. 1913, that a list of the tracts of - land assessed shall be returned to the county clerk, enables the district to fix a lien upon lands of the district generally, and provides a means of collecting the tax. The section also provides that assessments against public corporations and railroad companies may be presented as other claims are. If not paid when so presented, they may be collected by suit.</p>

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

<p>1. . Insurance: Parol Agreément. An oral agreement to insure is enforceable, but. it must be definite as to all of the material terms of the contract.</p> <p>2. Evidence: Collateral Facts. Collateral facts are not allowed in evidence, unless such facts throw light upon the, issue being tried. It is not ordinarily allowed to prove collateral- facts for the purpose of 'explaining other collateral facts.</p> <p>3. Tr-ial: Explanatory Instruction. An instruction that properly explains the application of a principle of law stated in a previous instruction is not erroneous.</p> <p>4. Appeal: Instructions: Assumption of Fact. From the facts in evidence, indicated in the opinion, it does not appear that the jury could have been misled by assuming in the instructions that “ho effort to pay (the insurance premium) had been made.”</p>

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

<p>Appeal from the district court for Butler county: Edward E. Good, Judge.</p>

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

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

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

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

<p>1. Waters: Railroads: Bridges:' Flood Waters. Where a railroad company builds a bridge on its right of way over a stream of running water, it is bound to construct an outlet of sufficient capacity to carry any flood that may or should have been reasonably anticipated when the railroad was built.</p> <p>2. -:-:-: Negligent Construction: Liability. Where a railroad company so negligently constructs such channel or outlet as to obstruct and overflow the creek beyond its banks in a flood that was or reasonably should have be.en anticipated when the 102 Neb. — 32 railroad was built, and damage from such overflow thereby ensues to the lands or the crops of another, such' company is liable to respond in damages at the suit of the injured person.</p> <p>. 3. -: Surface Waters. Overflow water that escapes from the banks of a running stream, and that does not return to its banks, nor find its way to another stream or water-course, is surface water.</p> <p>4. Appeal: Conflicting Evidence. Where the testimony conflicts .on every material point at issue, but is sufficient to sustain a verdict ■ for either party, the verdict will not be disturbed.</p> <p>5. Pleading: Nonspecific Plea. It is not error to submit testimony' to a jury in a law action on a material issue that has not been' specifically pleaded where such issue has been generally pleaded.</p> <p>6. Damages: Perennial and Annual Crops. The measure of damage for the destruction of a perennial crop, such as alfalfa and the like, is the difference between the value of the land with such crop growing thereon and the value of the land after the destruction of the crop. The measure of damage for the destruction of growing annual crops, such as corn and the like, is the value thereof immediately before their destruction.</p>

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

<p>Mandamus: Judicial Discretion: Fireman’s Pension. Section 2518, Re.v. St. 1913, contemplates the presentation of proof- by an applicant for pension, a consideration thereof, and a decision thereon by the governing body of the city as a condition precedent to the right to a pension, and, in rendering its decision, such , body exercises a judicial discretion that will not be controlled by mandamus.</p>

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

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

<p>Appeal from the district court for Buffalo county: Bruno O. Hostetler, Judge.</p>

<p>1. Corporations: Interlocking Directors. The fairness of contracts between corporations having directors in common must be shown by clear and convincing proof, and it must be. made to appear that they are absolutely free from fraud.</p> <p>2. Principal and Agent: Unauthorized Contract: Ratification. The ratification of an unauthorized contract can take place only where the person or body assuming to perform the act had the power either to do it or to authorize the doing of it in the first instance-.</p>

<p>1. Negligence: Question fob Juby. Where different minds may reasonably arrive at different conclusions from the same state of facts, as to whether the facts proved established negligence, the question of negligence in such case is for the jury, and not for the court.</p> <p>2. Carriers: Duty to Guest of Passenger. Where a person, with the permission of an employee of a railroad company, enters a passenger coach with a departing guest who is a passenger, to see such passenger off, it is the duty of the company to exercise ordinary care to prevent injuring such person while entering and while within apd while alighting from the coach.</p> <p>S. -: Injury to Guest of Passenger: Liability. In such case, the company is liable for negligently injuring a person who so accompanies a guest into one of its coaches.</p> <p>4. -: Action for Injuries: Petition: Evidence. The record examined, and held, the petition states a cause of action and the verdict is supported by the testimony.</p>

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

<p>Inheritance Tax: Appeal. Chapter 118, Laws 1915, gives to the county the right of appeal from the county court for alleged inadequacy of assessment of an inheritance tax upon the estate of a decedent. That which is implied is as much a part of the statute as that which is expressed.</p>

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

<p>Guaranty: Recommendation to Jobber: Liability. When a hank writes a jobber that a third party has made arrangements with it to remit in payment of a bill of goods “upon arrival of the goods, subject to inspection,” and the letter is treated as a “recommendation” only, and the* goods are shipped and delivered to the third party without acknowledgment of receipt of the letter or notice of shipment, within a reasonable time, no liability for payment of the goods arises against the bank.</p>

<p>1. Wills: Contest: Burden of Proof. In an action to set aside a will because of improper or undue influence exerted upon testatrix, the burden of proof is ordinarily upon contestant.</p> <p>2. Evidence held to support the verdict.</p>

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

<p>1. Insurance: Contbact: Ultba Vibes: Estoppel. A fraternal beneficiary society Js not estopped from pleading ultra vires as to a contract which is beyond the powers conferred upon it by the statute under which it is organized.</p> <p>2. -: By-Law: Invalidity. A by-law of a fraternal beneficiary society in contravention- of the statute under which it is organized is ultra vires, and, as between such society and a member chargeable with knowledge of the society’s want of power to make a contract based thereon, it is wholly void.</p>

<p>Drains: Use of Water: Injunction. Evidence examined, and found- insufficient to entitle plaintiff to the writ prayed.</p>

<p>Food: Misbranding: Violation of Statute. Copy of label on which a charge of misbranding is based set out in the opinion, and held not a violation of section 2551, Rev. St. 1913.</p>

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

<p>Appeal from the district court for Lancaster county: Willard E. Stewart, 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: Action for Compensation: Parties. Sections 3665, 3685, Rev. St. 1913, construed, and held that an action to recover compensation for death may be brought either by the dependent or dependents entitled thereto, the legal guardian or trustee of a minor dependent, or by the executor or administrator of the deceased.</p> <p>2. -: -: Accident in Course of Employment. A workman injured by collision with a street car while on the way to procure materials to be used in the work for which he was employed, and the ordering and procuring of which materials was a common incident of his duties, was injured “by accident arising out of and in the course of employment” (Rev. St. 1913, sec. 3650), and his dependents became entitled to compensation.</p>

<p>Master and. Servant: Injury to Servant: Negligence: Evidence. In a suit by an employee to recover from his employer damages for' personal / injuries resulting from the latter’s negligence, proof tending to show that defendant did not furnish proper appliances or men enough for the work in hand held sufficient to sustain a verdict in favor of plaintiff on those issues.</p>

<p>1. Executors: Right of Appeal. The executor named in the -will offered for probate is a .proper party proponent, and, if upon appeal to, the district court by contestant the proposed will is denied probate, the executor may appeal to this court.</p> <p>2. Appeal: Errors: Review. Alleged errors not brought to the attention of the trial court in the • motion for new trial will not ordinarily be considered in this court.</p> <p>3. -: Withdrawal of Admission. An admission of fact by counsel in the trial of a cause may be withdrawn with consent of the court, and such consent and withdrawal will be presumed if the record- shows that thereafter the parties fully tried the matter so supposed to have been conceded.</p> <p>4. -: Verdict: Sufficiency of Evidence: Question fob Court. It is for the courts, to determine whether there is such a failure of evidence to support the verdict that all reasonable minds must on consideration of the evidence alone conclude that it is clearly wrong. They are- not called upon to say what their decision would be upon conflicting evidence if the law required them to determine upon which side of the question' it preponderates.</p> <p>5. -: -: -. Upon the question whether the verdict of a jury can be -sustained, the judges sometimes disagree, but this is no indication that they would disagree as to the preponderance of the evidence, if that question was submitted to them. We cannot find that the evidence is so clear and conclusive in this case as to require the court to interfere with the province of the jury.</p> <p>6. Evidence: Nonexpert Witness: Mental Capacity. “A nonexpert witness cannot give her opinion as to the mental capacity of testatrix unless such opinion is based solely -on facts relating to the conduct and action of the testatrix as detailed in the evidence of the witness.”</p> <p>7. Appeal: Opinion of Nonexpert: Harmless Error. In contest Of a proposed will, if it is alleged that the testator was intoxicated when the will was executed, and that it was procured by undue influence, the fact that a witness who was familiar with his condition at the time was allowed to state her- opinion as to “whether he was competent or incompetent to transact important business” will not require a reversal, if it appears that the witness was testifying solely to his intoxication and' his condition in that respect, and that the appellant was not prejudiced by the form of the question and answer.</p> <p>8. Wills: Probate: Mental Capacity: Instruction. An instruction that, in determining whether the testator was of sound mind and had sufficient mental capacity to make a valid will, the jury may consider “the terms and provisions of the will itself, whether the same are just or unjust, reasonable or unreasonable, natural or unnatural,” and similar matters indicated in the opinion, will not be held erroneous requiring a reversal, if the jury are plainly told that such matters will not alone warrant the presumption of mental incapacity, but should be considered as circumstances in connection with other facts bearing on the condition of the testator’s mind.</p>

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

<p>1. Judgment: Vacation. Where it is -shown that there is a. good defense, and that failure to defend was due to the mistake or miscalculation of defendant’s attorneys as to the time allowed to plead, an application to open the judgment made at the same term should be sustained.</p> <p>2. Attachment: Sam: Notice to Purchaser. In such case, .if there has heen a (sale of attached property under circumstances which would amount to notice to the purchaser of the rights of the defendant, he will be held to purchase subject to the defendant’s rights.</p>

<p>1. Judgment: Vacation. Default judgment was entered against the defendant, service being had upon the auditor, who had not been authorized by the defendant to receive and transmit copy of summons for it as required by law. The defendant was without actual notice of the action. Seven months afterwards the defendant, tendering a meritorious defense, instituted proceedings under sections 8207-8215, Rev. St. 1913. for a vacation of the judgment and a trial upon the merits. Held, that, under the circumstances of this case, the judgment should be vacated on the ground of unavoidable casualty preventing a defense.</p> <p>2. -: Jurisdiction: Quaere. Where service is had upon the auditor of the state, as attorney in fact' for a foreign insurance company doing business in this state, which has not given the auditor authority in writing to receive summons for it as required by section 11, ch. 47, Laws 1897, and which is without actual notice of the action — quaere'. Does the court obtain jurisdiction to enter default judgment against the defendant in such action?</p>

<p>1. Habeas Corpus: Res Judicata. Tbe principle of res judicata does not apply in cases of habeas corpus to a judgment discharging the prisoner, when such previous discharge was not upon the merits, but for defect of proof, such as failure to prove venue, or where a new state of facts, warranting his restraint, is shown to exist, different from that which existed at the time the first judgment was rendered.</p> <p>2. -: Dischakge: Evidence. "Where the testimony shows that an offense has been committed and there is testimony tending to show that the accused committed the offense, the court, on a writ of habeas corpus, will not discharge him. The rule, as applied in Iñ re Balcom, 12 Neb. 316, approved.</p>

<p>1. Appeal in Equity: Conflicting Evidence: Review. -When, on the trial of a suit in equity the material issues are submitted on conflicting evidence, adduced orally before the trial court, and the court makes a personal examination of the property forming the basis of the litigation, this court will consider such circumstance in determining the issues.</p> <p>2. Evidence found to support the judgment of the trial court.</p>

<p>Trial: Direction op Verdict.. Where the facts in evidence would not sustain a verdict for .the plaintiff, a trial court is justified in directing a verdict for defendant.</p>

<p>Opinion on motion for rehearing of case reported in 101 Neb. 750.</p>

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

<p>Appeal from the district court' for Saline county: Ralph D. Brown, Judge.</p>

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

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

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

<p>1. Error cannot be predicated upon a direction ■ to return ,the only verdict that the record will sustain.</p> <p>2. Replevin: Oosts. “A defendant in replevin who unsuccessfully seeks to establish a right of possession in himself is liable for costs, although no demand was .pleaded or proved.” Tilden v. Stilson, 49 Neb. 382.</p>

<p>Opinion on motion for rehearing of case reported in 101 Neb. 763.</p>

<p>Leeds: Undue Influence: Sufficiency of Evidence. Evidence found to support the judgment of the trial court.</p>

<p>1. Insurance: Contract: Total Disability. One who is color blind, but whose vision in other respects is unimpaired, has not suffered “complete and permanent loss of sight of both eyes,” The fact that plaintiff is a railroad trainman, and on account of color blindess was discharged from his employment, does not entitle him to recover the amount payable under a provision of a benefit certificate that a member of the organization in good standing, “who shall suffer the complete and permanent loss of sight of both eyes, * * * shall be considered totally and permanently disabled;” there being no provision that the term “totally disabled” should mean “totally disabled” from following railroad work.</p> <p>2. Case Overruled. Routt v. Brotherhood of Railroad Trainmen, 101 Neb. 763, overruled.</p>

<p>1. County Treasurer: Interest on State Funds. A county treasurer is chargeable with interest on state funds if he fails “to pay into the state treasury the amount due the state on his account, for state and other taxes at the time or times required.” Rev. St. 1913, sec. 6509.</p> <p>2. States: County Treasurers: Statement of Accounts: Interest. He must fully state to the auditor the condition of his account with the state upon .blanks furnished him by the auditor; and, when the auditor has adjusted the account and stated the amount due the state, the account so stated is then “due the state,” and he will be chargeable with interest thereon until it is paid to the state treasurer.</p> <p>3. -: -: -. If the auditor fails to furnish “suitable blanks for the settlements of county treasurers with the auditor,” as required by section 6520, Rev. St. 1913, or if he refuses to countersign the state treasurer’s receipt as required by section 6508/ money in the hands of the county treasurer is not “due the state on his account” within the meaning of section 6509.</p> <p>4. -: -: Settlement of Accounts. It is only when money is transferred to the state treasurer voluntarily by the county treasurer, • waiving the formalities that are required for his protection and the protection of the public, that “no formal settlement with the county treasurer is necessary.”</p>

<p>Master and Servant: Employers’ Liability Act: Claim eor Compensation. The mere fact that the employer has knowledge that the employee has received an injury will not dispense with the necessity of the claimant’s making, his claim for compensation, as provided by section 3674, Rev. St. 1913 (Employers’ Liability Act).</p>

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

<p>Mechanics’ Liens: Subcontractor’s Lien. Sections 3823, 3824, Rev. St. 1913, construed, and held: The subcontractor’s right to a lien for services or material furnished to ,the contractor does not depend upon the terms of the contract entered into between the owner and the contractor. Frost v. Falgetter, 52 Neb. 692, overruled.</p>

<p>1. Municipal Corporations: Ceeation of Pa vino District: Petition. A city of the second class having more than 1,000 and less than 5,000 inhabitants has authority by a vote of three-fourths of the members of the council, under .section 5110, Rev. St. 1913, to create a paving district.and levy special assessments in the manner, pointed out, by statute to pay the expense of the paving, without a petition of the resident owners.of the property subject to assessment.</p> <p>2. -: — :- Implied Powees. Incidental powers- that are necessary to make effective the object of a legislative act- are’ impliedly granted.</p> <p>3. -: IMPEOVEMENTS: POWEE OF COUNCIL: VALIDITY OF STATUTE. Section 5110,- Rev. St. 1913, in providing that, “unless three-fifths -.of the resident owners of the property .subject to the assessment for such improvements petition the council or trustees to make the same, such improvements shall' not be made until three-fourths of all the members of such council or board of trustees shall by vote assent to the making of' same,” is not therefore violative of section 6, art. IX, of the Constitution.</p>

<p>Criminal Law: Election. Where on a trial for incest, charged, not with a continuando, hut as a single act upon a date specified, evidence is; introduced of acts of .sexual intercourse between the prosecutrix and the defendant, distinct offenses from the one charged in the information, it was the duty of the court, upon motion' of the defendant, made when the state rested its case, to require the state to elect- upon which one of the several acts it intended to rely for a conviction.</p>

<p>1. Death: Presumption. “A presumption of death arises from the continued and unexplained absence of a person from his home or place of residence for seven years; where nothing has been heard from or concerning him during that time by those who, were he living, would naturally hear from him.” Holdrege v. Livingston, 79 Neb. 238.</p> <p>2. -: -. “In such case the presumption is that the absentee died during the first seven years of his unexplained absence. There is no presumption that his death occurred at any particular time during said period.” McLaughlin v. Sovereign Camp, W. O. W., 97 Neb. .71.</p> <p>3. -: -: Insurance. “In such case an insurer cannot avoid its contract of insurance on the life of such absentee because of an alleged violation by the insured of a by-law adopted by the insurer during such unexplained absence, without evidence that the insured was living when the by-law was adopted.” McLaughlin v. Sovereign Camp, ~W. O. W., 97 Neb. 71.</p> <p>4. Insurance: Action: Attorney’s Fees. Section 3212, Rev. Sc. 1913, is so far controlled by section 3299, Rev. St. 1913, as to preclude the court from taxing, as part of the costs, an attorney fee in a suit based upon a certificate of membership in a fraternal beneficiary association.</p>

<p>Vendor and Purchaser: Bona Fide Purchaser: Notice. The general rule is that the open, notorious possession of real property .by a tenant is notice to the world of the landlord’s title.</p>

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

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

<p>■Error to. the district court for Franklin' county: ' Harry S. Dungan, Judge.</p>

<p>Error to the district court for Saline county: Ralph D. Brown, Judge.</p>

<p>Appeal from the district court for Butler county: George F. Corcoran and Edward E. Good, Judges.</p>

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

<p>Error to the district court for Boone county: George H. Thomas, Judge.</p>

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

<p>1. «Conversion: Election of Remedies. One whose property has been wrongfully converted by others may maintain an action in tort against the wrongdoers, or may waive the tort and sue as upon an implied contract to pay the value of the property, but he cannot maintain an action as upon an implied, contract against some of the wrongdoers and at the same time another action, in tort against other wrongdoers.</p> <p>2. Bankruptcy: Torts: Remedies. In such case,, if the principal wrongdoer has become bankrupt, and plaintiff has proved his claim as upon an implied contract against such bankrupt, and .received his. dividends thereon, he cannot at the same time or thereafter maintain an action in tort against those who may have assisted the principal wrongdoer in converting the property.</p>

<p>1. Drains: Appobtionment of Benefits: Injunction. If one of the alleged grounds for enjoining the district board of a .drainage district from proceeding to an apportionment or reapportionment of benefits under the drainage act is that the state board has not approved of the plans and specifications of the improvements, the district court should allow the district board to submit its plans and specifications to the state board, and, if approved by- that board, the court should thereupon proceed accordingly, but should not allow any contract to be let or work'begun without application for such approval of the state board.</p> <p>2. Appeal: Review: Stipulation. A stipulation made for the purpose of assisting the trial court in determining whether a temporary injunction shall be continued until the final trial of the case .will not be considered in this court to prevent the parties from contesting here the only question which was afterwards finally tried upon its merits.</p> <p>3. Drains: Statute: Application. Chapter 145, Laws 1911, does, not apply to drainage districts organized before its enactment.</p> <p>4. -: Apportionment of Benefits: Injunction. .The fact that the purpose of the proposed changes and improvements is the same as the purpose of the original plans and specifications is immaterial. The question here is whether the proposed plans and specifications contemplate such changes- as may, in the .reasonable discretion of the district board, render the original apportionment of benefits unequal and unjust.</p> <p>5. -: -: -. In this action to enjoin the district board from proceeding with the proposed reapportionment of benefits, it is not necessary to determine whether the original plans might have been so promptly and thoroughly executed as to accomplish the purpose of the improvement under the original apportionment, since the evidence will not justify the finding that the district board failed to exercise a reasonable discretion as to the time and-manner of performing the work under the circumstances.</p>

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

<p>Appeal from the district court for Dodge county: Edward E. Good, Judge.</p>

<p>Error to the district court for Boone county: George H. Thomas, Judge.</p>

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

Original proceeding in mandamus by relator to compel respondent, as county clerk, to placó the name of relator on the nonpartisan ballot as candidate for county judge.

Hanna, Judge. Plaintiff is a policy-holder in a mutual insurance company whose principal place of business was in Lancaster county. This corporation became insolvent, and a receiver was appointed for it. The receiver began an action against the various policy-holders in the district court for Lancaster county. A summons was issued, sent to Grant county, the county of plaintiff’s residence, and a copy served upon him by the deputy sheriff of that county. He made no appearance.

<p>Appeal from the district court for Lancaster county: Albert J. Cornish, Judge. .</p>

<p>1. Taxation: Place oe. “The word ‘property’ includes every kind of property, tangible or intangible, subject to ownership.” Rev. St. 1913, sec. 6291. Property of merchants, except as specifically provided in the statute, “shall be listed and taxed in the county, township, precinct, city, village, and school district where the business is done.” Rev. St. 1913, sec. 6329.</p> <p>2. -: Double Taxation. Double taxation is, under some circumstances, considered unavoidable; but it is the policy of our law to avoid double or unegual taxation when practicable.</p> <p>3. -i-: -: Credits. To avoid double taxation, the word “credits,” as used in the statute, is construed to mean net credits.</p> <p>4. -: Place: Net Credits. When a merchant' operates, in several counties, stations for the purpose of selling lumber, fuel, grain and live stock, each station should be assessed as an independent business, and the net credits for taxation of each business is the excess of its assets, if any, over the indebtedness incurred in establishing and conducting that particular undertaking.</p>

<p>Appeal from the district court for Cuming county: Andrew R. Oleson, Judge.</p>

<p>Error to the district court for Burt county: Alexander C. Troup, Judge.</p>

<p>Guaranty: Payment of Note. A guaranty written on certain negotiable promissory notes was in the following form: “Por value received, I hereby guarantee the payment of the within note, and all renewals, and extensions thereof, to the payee therein named, or any owner and holder thereof; and I .hereby waive protest, due presentment, demand and notice of nonpayment thereof, and I hereby waive diligence on the part of any holder thereof in collecting said note and all defenses arising,out of lack of diligence in enforcing payment thereof.” Held, to be a contract to pay the notes in suit by the guarantor upon default by the respective makers at maturity.</p>

<p>Appeal from the district court for Saunders county: Edward E. Good, Judge.</p>

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

<p>Process: Nonresident: Constructive Service. Chapter 161, Laws 1909, amending section 77 of the Code, now appearing as section 7640, Rev. St. 1913, construed, and held, that the former method of procuring service upon nonresidents was not affected thereby; that the purpose of the amendment was to provide a means of constructive service when it is unknown to the plaintiff and its attorney whether the defendant or defendants are residents or nonresidents of the state.</p>

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

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

Original application to vacate order directing appraisement by court of condemnation of the Omaha gas plant. The legislature of 1917 passed an act supplemental-to chapter 46 of the Revised Statutes, relating to municipal corporations of the metropolitan class, and amending and repealing certain specified .sections of that acts as amended in 1915. Laws 1917, ch. 87.

<p>1. Husband and Wife: Alienation of Affections: Parental Advice. The law presumes ■ that the father and mother, in advising their minor child, acted in good faith and for what they supposed his best interest.</p> <p>2. Marriage: Validity. If a minor is of the age of consent (Rev. St. 1913, sec. 1541), the fact that there was no license, or that it was wrongfully obtained, does not invalidate his marriage.</p> <p>3. -: Annulment. A marriage may be annulled when one of the parties is under the age of legal consent at the suit of the parent entitled to the custody of such minor. Rev. St. 1913, sec. 1596. But, that no' license was obtained, or that the license was obtained fraudulently, is no ground for the annulment of a marriage.</p> <p>4. Husband and Wife: Alienation of Affections: Parental Advice. A parent may advise his son in good faith to leave his wife or to procure a divorce, if statutory grounds for separation and divorce exist or he has reasonable cause to believe and does believe that such grounds exist.</p> <p>5. -: -: Liability. If a parent breaks up, or assists in breaking up, a valid marriage of his son, solely “because he is displeased with the marriage, or because it is against his will, or because he wishes the marriage relation to continue no longer” (13 R. C. L. sec. 522, p. 1472), he will be liable in damages to the party injured.</p> <p>6. -: -: Evidence. In an action by the wife for alienation of her husband’s affections, statements of her husband would not be competent evidence' of affirmative hostile actions on the part of the defendants, but, so far as such conversation tends to show the condition of her husband’s mind and feelings toward the plaintiff at the time, and the effect that the conduct of the defendants was having upon the affections of her husband for her and his conduct toward her, it is competent.</p> <p>7. -: -: Damages. Upon the evidence referred to in the opinion, it is held that a verdict for $4,750 damages, for the alienation of the husband’s affections, is not so plainly excessive as to require this court to interfere.</p>

<p>Appeal from the district court for Dundy county; Ernest B. Perry, Judge.</p>

<p>1. Constitutional Provisions: Construction. The general rule is that constitutional provisions are to he construed as mandatory, unless, hy express provision or hy necessary implication, a different intention is manifest.</p> <p>2. Statutes: Referendum: Action: Laches. Both the Constitution and the statute relating to referendum contemplate that actions brought under the law shall be speedily commenced -and terminated, so that elections may be had, if possible, at the time named in the Constitution. Laches upon the part of those commencing the action or resisting it will justify the court in dismissing the action or defense.</p> <p>3. Appeal: Pinal Order: Referendum: Temporary Injunction. The Constitution provides that elections upon referendum petitions “shall be had -at the first regular state election held not less than thirty days” (Const., art. Ill, sec. ID) after the filing of the petition. The Constitution also provides for legislation to- facilitate the .operation of the referendum amendment and for legislation relating to the submission of petitions. A law was passed permitting mandamus and injunction proceedings, directed against the secretary of state, bringing in question the validity of the referendum petition or the manner of submission. Held that, pending an action seeking an injunction to prevent the submission of the proposition to the voters because of insufficiency oE the petition, and in which a. temporary injunction has issued therefor, the proposition should not be submitted; and that the constitutional provision, fixing the date of the election, is to that extent directory, and not mandatory. Held, further, that in such case the election, if not permanently enjoined, should be had at a regular election, and as soon as may be under the law, awaiting the final decision of the court. Held, further, that a temporary injunction made by the trial court, enjoining the secretary of state from submitting the p'roposition until the hearing and adjudication of the case upon its merits, is not a final order appeal-able to this court, even though it prevents a submission» at the first regular election.</p>

<p>1. Appeal: Conflicting Evidence. The finding of a jury on conflicting evidence will not' be disturbed unless it is clearly wrong.</p> <p>2. Evidence examined, and held to be amply sufficient to sustain the. verdict.</p>

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

<p>Appeal from the district court for Saunders county: George F. Corcoran, Judge.</p>

<p>1. Public Lands: Educational Lands: Enabling Act. “Lands granted to the state of Nebraska by the United States, by virtue of the provisions of section 11 of the ‘Enabling Act,’ were not placed in the class of educational lands by the provisions of sections 3 and 4 of article VIII of the Constitution of the state, adopted in 1875." MoMurtry v. Engelhardt, 5 Neb. (Unof.) 271.</p> <p>2. -: Saline Lands: Control. “The board .of educational lands and funds has no jurisdiction or control over the disposal of the lands granted to the state by said section 11, commonly known as saline lands.’’ MoMurtry v. Engelhardt, 5 Neb. (Unof.) 271.</p>

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

<p>1. Appeal: Bill of .Exceptions: Correction. ’When counsel presents a bill of exceptions to the adverse party and the court for examination and settlement, he vouches for ■ its correctness, and, ' when the court by allowance makes it a part of the record, it imports verity. After being filed in this court, it can only be corrected by being withdrawn by leave of court for correction in the district court.</p> <p>2. -: -: -. Such a motion ordinarily comes too late after the case has been argued and submitted and the opinion handed down, and this is especially so, when the portion of the bill which is spught .to be corrected has been called to the attention of counsel presenting the same, before the cause was argued and submitted, by being set forth in the brief of the adverse party. Í</p> <p>3. Principal and Surety: Release of Surety. One who is not a party to a contract, by the terms of which the maturity of certain notes, which he afterwards signed, should be accelerated upon the nonpayment of any one of them. within foiir' months after due, cannot assert that he is released from his obligation upon the notes merely upon this account, since the contract in ho wise affected his liability upon the notes, and he was only bound to pay at the dates specified therein.</p> <p>4. Bills and Notes:- Defenses. In the hands of any holder other than a holder in due course, a negotiable instrument is subject .to the same defenses as if it were nonnegotiable. Rev. St. 1913, sec. 5376.</p> <p>5. -: “Holder in Due Course.” A.payee who takes a negotiable instrument with knowledge that one of the signers is only signing as a surety, and who agrees that certain collateral pledged to secure the note shall first be applied before the surety shall be liable, is not a “holder in due course” .as respects such' agreement with the surety.</p>

<p>Limitation of Actions. “An action to recover on an implied assumpsit is harred by the expiration of four years after the cause of action arose.” Marhey v. School District, 58 Neb. 479.</p>

<p>1. Husband and Wife: Criminal Conversation: Verdict:'Sufficiency of Evidence. Evidence described in the opinion held, sufficient to sustain a verdict in favor of plaintiff for $2,500 in an action for criminal conversation.</p> <p>2. -: -: Evidence of Collusion: Exclusion. In a suit by a husband for criminal conversation, proof by defendant of mere collusion between plaintiff and his wife to claim damages or to bring an action therefor may be excluded, where there is no evidence of connivance or collusion on the part of the husband in regard to the wrongs imputed to defendant.</p> <p>3. -: -: Damages. In a suit by a husband for criminal conversation, a jury properly finding in favor of plaintiff may, in assessing damages, consider the wrong to plaintiff “in his domestic and social relations” and the “stain and dishonor” suffered by him.</p> <p>4. -: --: Variance. In a suit by a husband for criminal conversation alleged by him to have occurred on or about a date mentioned and to have recurred at intervals for two years, plaintiff in making his case is not necessarily limited to proof of offenses committed within that period.</p>

<p>Appeal from the district court for Richardson county: George F. Corcoran, Judge.</p>

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

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