Volume 103 — Nebraska Reports

<p>Appeal from the district court for Lancaster county: Frederick; E. Shepherd and William M. Morning, Judges.</p>

<p>1. Corporations: Stock: Executory Contract oe Sale: Dividends. In the case of an executory contract to sell stock, binding on both purchaser and seller, where nothing is said about the dividends, dividends declared while the contract is executory belong to the purchaser, and not to the seller.</p> <p>2. -: -: -: -. Evidence examined, and held that the contract under consideration, as construed by the parties to it, entitled the purchasers of stock sold to all dividends declared upon the stock after the sale, including that on the 20 shares in controversy.</p>

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

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

<p>State Railway Commission: Bond. A state railway commissioner folding office under the constitutional amendment creating the state railway commission is not required to give an official bond.</p>

<p>Original ■ proceeding ' in • quo warranto to oust respondent from the office of state railway commissioner.</p>

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

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

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

<p>Intoxicating Liquors: Action for Damages: Petition. Tlie salient paragraph of the petition, together with the construction placed upon it in open court by its author, set out, and held to charge the shooting of plaintiffs’ intestate to have been done by one of his companions, by himself, or by an unknown third party.</p>

<p>1. Insurance: Application: Construction: Warranties. When, in an action on a fraternal benefit life insurance certificate, it becomes necessary to determine whether the statements made in the written application are warranties or mere representations, the court will take into consideration the situation of the parties, the subject-matter, and the language employed, and, when it clearly appears that it was the understanding of the parties that the statements should be construed as warranties, the contract will be so construed.</p> <p>'2. - — : Warranties: Pleading and Proof. In order that such ■warranties shall constitute a defense to such action, it is incumbent upon defendant to plead and prove that the answers were made substantially as written in the application, that they were false in some particular material to the risk, and that defendant relied upon and acted upon them.</p> <p>3. Trial: Direction of Verdict. “Where the evidence on the trial in the district court is not conflicting, and reasonable minds cannot differ as to the conclusion to be derived therefrom, it is the duty of the court, when requested, to direct a verdict in accordance With such conclusion.” Nebraska Transfer Co. v. Chicago, B. & Q. B. Co., 90 Neb. 488.</p>

<p>1. Master and Servant: Release: Avoidance: Burden of Proof. When the plaintiff in a suit under the employers’ liability act has executed a release in writing of all further claims for compensation, and received a consideration therefor, hut seeks to avoid the release on the ground that it was obtained by fraud and deception, the burden is upon her to establish the fraud.</p> <p>2. -: -: Evidence. In such case, when the amount paid is but a trifling part of the amount for which defendant is liable, that fact may be considered, with other evidence, as tending to show unfair practice, that plaintiff has been overreached, and that the minds of the parties never met in the consummation of a valid and binding settlement.</p>

<p>1. Railroads: Grossing: State Railway Commission: Powers. In a certain sense the railway commission has jurisdiction concerning the crossing of a railway by a public highway. It may in reason prescribe the method in which the crossing shall he made, hut it has no power to determine whether or not the highway shall extend across the right of way. The right to determine whether a highway shall extend across a railroad belongs to the county board.</p> <p>2. Eminent Domain: Proceedings: Objections. Objections that there is no legally established highway connecting with the road petitioned for, that there is no necessity for the condemnation, or that the road is sought to be established merely as a driveway for scenic purposes, should have been presented to the county board at the date Set for filing objections, and come too late after the road has been established and when it is sought by mandamus to compeh the construction of a highway crossing.</p> <p>3. -: Damages: Objections. This principle also applies to the contention that the damages allowed were inadequate, and that the construction of an overhead crossing by the railroad company would greatly exceed the amount of the damages allowed. The claim for damages should have been presented to the county board, and if the allowance was unsatisfactory, an appeal might have been taken.</p>

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

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

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

<p>Taxation: Assessment: Bank Stock. In making the assessment of the total value of shares of stock for purposes of taxation, in a hanking institution, as provided for in section 6343, Rev. St. 1913, as amended in chapter 108, Laws 1915, the assessor should include. all the property of the bank and assets of every description at their true value. Mortgage securities, mentioned in the section, upon which the mortgagor has agreed to pay the tax, should not be excluded; nor should they be deducted from the total valuation of the shares of capital stock, in arriving at the value of each share which is the unit of taxation.</p>

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

<p>1. Evidence: Value of Crops. It is competent for a farmer who is actively engaged in raising farm crops to testify respecting their money value.</p> <p>2. Appeal: Conflicting Evidence. When the testimony conflicts on a material point, the verdict will not be disturbed unless clearly wrong.</p> <p>3. Trial: Instructions: Value oe Crops. In an action to recover the value of farm crops, destroyed by the alleged negligence of another, it is competent for the court to instruct the jury as to the value of such crops as shown by the undisputed testimony, leaving the jury free to determine by their verdict, from the evidence of the parties, whether defendant is liable for all or any part of such damage.</p>

<p>1. Pleading: Reply: Amendment. Where a plea in the answer is tried by the parties and submitted to the jury as though traversed by the reply which, before judgment, is amended to raise the issue in fact tried, the defect in the original reply is not a ground of reversal.</p> <p>2. Trial: Question fob Juby. A substantial conflict in evidence on an issue of fact presents a question for the jury.</p> <p>3. Harmless error in the admission of evidence is not a ground for reversing a judgment.</p> <p>4. Trial: Instructions. A. party desiring a more explicit instruction than that given should ofier such an instruction.</p>

<p>Excessive Damages. Record examined, and, it appearing that the judgment is excessive, held that, unless within 15 days plaintiff files her remittitur in the amount of $1,000 and interest from the date of the judgment, the same is reversed; otherwise, affirmed.</p>

<p>1. Master and Servant: Injury to Servant: Medical Services. Under section 3661, Rev. St. 1913, as amended, section 6, ch. 85, Laws 1917, an employer who offers to furnish without charge to an injured employee the reasonable services of a competent physician and medicines as and when needed, and within the value and for the time contemplated by the act, cannot be held liable for such services procured by such employee, who has unreasonably refused such offer by the employer and has obtained such' services and medicines elsewhere.</p> <p>2. -: -: -: Statute: Construction. The general purpose of a proviso in a statute is to qualify the statute in part or • in whole, but it is not always so used. The word “provided,” as it is first used in section 3661, Rev. St. 1913, as amended by section 6, ch. 85, Laws 1917, has the same meaning that the conjunction “and” or “but” would have if used in its place.</p>

<p>EeRok to the district court for Hitchcock county: ErNest B. Perry, Judge.</p>

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

<p>1. Insurance: Foreign Association: Right to Transact Business. Where a foreign fraternal beneficiary society fails to show that it has complied with its own laws as to the right to do business in this state, it is not entitled to admission.</p> <p>2. -: Administrative Board: Powers. An administrative board may exercise only those discretionary powers given it by statute. When it is its duty to act, the statutory requirements having been complied with, it has no discretion. State v. More-head, 100 Neb. 864.</p>

<p>Counties: Court House Fund: Petition. Under the statute granting to the county hoard power to create by levy a courthouse building fund, “when requested so to do by a petition signed by at least 55 per cent, oí the legal voters,” the request is invalidated Dy an unauthorized condition designating the courthouse site, where the power to select the location is vested in the county board. Laws 1915, ch. 18.</p>

<p>1. Habeas Corpus; Return. In making return to a writ of habeas corpus, an officer detaining petitioner is required by statute to set out a copy of the warrant of arrest and detention. Rev. St. 1913, sec. 9263.</p> <p>2. -; Warrant. In habeas corpus a warrant of arrest and detention in the hands of the officer executing it is prima facie evidence of the cause ef detention. Rev. St. 1913, sec. 9265.</p> <p>3. -: Extradition: Complaint: Burden op Proof. The burden of proving that a complaint in a requisition is not certified according to federal law is on a prisoner who demands his freedom on that ground, where he is detained by an officer under a warrant of extradition, regular on its face.</p> <p>4. Extradition: Complaint: Certificate. In a requisition the copy of the complaint and the authenticating certificate required by the federal law may be written on different papers.</p> <p>5. -: -: Sufficiency. Where the complaint in a requisition charges all of the elements of a crime under the laws of the demanding state, its sufficiency, from the technical standpoint of pleading, presents a question for the courts of that state.</p> <p>6. Habeas Corpus: Extradition: Complaint: Evidence. In habeas corpus to release a prisoner detained under a warrant of extradition, the fact that a complaint was filed against him in the demanding state is prima facie evidence that he was there charged with a crime.</p> <p>7. -: -: -: Burden of Proof. Where a prisoner detained under a writ of extradition regular on its face demands his freedom on the ground that the complaint against him does not charge a crime under the statute of the demanding state, the burden is on him to maintain his position by producing the statute.</p> <p>6. -: Warrant: Presumption. Hie issuance of a warrant of extradition creates a presumption that the prisoner detained under it is a fugitive.</p> <p>-: Conflict of Evidence. In habeas corpus, where there is a substantial conflict in the evidence as to petitioner’s presence in or absence from the demanding state at the time the offense is alleged to have been committed, petitioner is not entitled to his freedom on that issue.</p>

<p>1. Trial: Conflict of Evidence: Submission of Issues. When, in a jury trial, the evidence is substantially conflicting upon the issues presented, so that different minds might reasonably reach different conclusions thereon, the cause must- be submitted to the jury with proper instructions.</p> <p>2. Appeal: Exclusion of Evidence. Offered evidence, indicated in the opinion, is held to have been erroneously' excluded.</p>

<p>1. Contracts: Consideration: Forbearance to Sue. Forbearance to sue, where no cause of action exists and the claim is groundless, is not a consideration to support a promise.</p> <p>2. -: Implied Contract: Consideration. Where the law implies a contract, a promise to do something else different from or in addition to that which the law implies is nudum pactum.</p> <p>3. Frauds, Statute of: Contract: Part Performance. “Performance of services of such a character that their value cannot be estimated by a pecuniary standard, so that the court cannot restore the promisee to the situation in which he was when the contract was made, or compensate him in damages, is sufficient to take such an agreement out of the statute of frauds.” Teslce v. Dittberner, 70 Neb. 544.</p> <p>4. -:--= — : -. Where the services were not rendered in pursuance of an agreement made, and in reliance upon it, but had already been rendered at the time of entering into the agreement, the past performance of such services is not sufficient to take the agreement out of the statute of frauds.</p>

<p>1. Receiving Stolen Goods: Intent. The element of guilty knowledge, necessary to constitute the crime of receiving stolen property, is contained in section 8630, Rev. St. 1913, providing that the property must have been received from the robber, “with intent to defraud the owner.”</p> <p>2. Criminal law: Evidence: Other Acts. “To make evidence of other acts available in a criminal prosecution, some use for it must be found as evidencing a conspiracy, knowledge, design, disposition, plan, or scheme, or other quality which is of itself evidence bearing upon the particular act charged.” Clark v. State, 102 Neb. 728.</p>

<p>1. Paupers: Petition: Sufficiency. An averment in a petition of circumstances showing destitution and inability to procure necessaries or to have them provided by others is a sufficient allegation of dependence upon the public, under section 5797, Rev. St. 1913, when assailed by demurrer. Meyers v. Furnas County, 93 Neb. 313.</p> <p>2. -: Support by Township. In counties under township organization in which a poorhouse has not been established, the burden of supporting the poor in the respective townships, under chapter 20, Laws 1915, devolves upon such townships.</p>

<p>Error to the district court for Madison county: William V. Allen, Judge.</p>

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

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

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

<p>Counties: Boundaries. Tlie boundary between Grant county and Garden county held to be tbe section line running north and south three miles west of the range line between ranges 40 and 41, in townships 21, 22, and 23.</p>

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

<p>1. Aliens: Inheritance: Escheat. Under sections 6273, 6274, Rev. St. 1913, nonresident aliens cannot inherit title nor right of possession of lands in this state; hut, the same must he forfeited to the state as provided' in those sections.</p> <p>2. Mandamus: Parties: Forfeiture of Lands. It is the duty of the county attorney of the county in which the lands lie to proceed under the statute to forfeit the lands to the state, and, if he refuses or neglects to do so, such nonresident alien heirs may enforce such action hy mandamus.</p> <p>3. Escheat: Rights of Nonresident Aliens. When lands of a decedent, from' whom such aliens would inherit if residents of the state, are so forfeited to the state, they are entitled to the value of such portion as they would, if residents, inherit; such value to he ascertained as provided in the statute.</p>

<p>1. Master and Servant: Assumption of Risk. An employee by liis contract of employment assumes the ordinary risks and dangers incident to his employment. If, however, the machinery or appliances furnished by the employer are known to the employee to be defective and dangerous, but he is induced to continue in such service on the promise of the employer to remedy such defect, and he relies on such promise, he does not thereby assume the risk of an injury he may sustain by reason of such defective machinery or appliance.</p> <p>2. Evidence examined, discussed in the opinion, and held sufficient to support the verdict.</p>

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

<p>1. Death, Action for: Limitations. Section 1429, Rev. St. 1913, creates a right of action which did not exist at common law. It Is a condition precedent to tlie right of recovery granted in this section that the action be brought within two years after the cause of action accrues.</p> <p>2. -: -. The limitation imposed in this section 1429 is independent of the statute of limitations as found in section 7577, Rev. St. 1913.</p>

<p>Street Railways: Operation: Actionable Negligence. It is the duty of the motorman of an interurban car, who sees a frightened team upon the highway close to the track in ample time to prevent damage, to slow down his car so as to bring it either to a stop, or under control as he approaches the team, and if he fails to take such precaution, and as a consequence damages result, his failure will constitute actionable negligence.</p>

<p>1. Appeal in Equity: Time. Under the provisions of section 8186, Rev. St. 1913, as amended by the legislature in 1917 (Laws 1917, ch. 140), the time for taking an appeal in an equity cause begins to run from the date of the -entry of the decree or final order if no motion for a new trial is filed. When a motion for a new trial is filed in an equity cause, the time for taking an appeal begins to run from the date of the overruling of the motion. Smith v. Silver, 58 Neb. 429, distinguished.</p> <p>2. Husband and Wife: Note of Married Woman: Presumption. When a married woman signs a note there is no presumption that she intended thereby to fasten a liability upon her separate estate. Grand Island Banlcing Go. v. Wright, 52 Neb. 574.</p> <p>3. -: -: Deficiency Judsment. In an action in equity to foreclose a real estate mortgage given to secure notes signed by husband and wife, judgment for deficiency cannot be rendered against the wife when it appears by the pleadings that she was a married woman when she signed the notes, unless the issue as to her liability to a deficiency judgment is raised by proper allegations in the pleadings.</p>

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

<p>1. Mechanics’ Liens: Provision in Surety Bond: Payment of Liens. A bond given to secure the execution of a building contract contained the direct provision that, “Now if all of said conditions of contract are carried out * * * and the building is secured from all liens arising from the execution of said work, this bond to be null and void.” Held, that this constitutes an independent agreement as to the payment of liens, and is not affected by a provision in the building contract which requires the owner to procure architect’s certificates before making payments to the contractor.</p> <p>2. -: Payment of Materialmen: Subroqation. Under the building contract, it was the duty of the contractor to furnish all material, and if there was any evidence of liens for which the owner might become liable, he had the right to retain an amount sufficient to indemnify him, and the contractor was bound to refund to the owner any money he might be compelled to pay in discharging liens. It was therefore the duty of the contractor to pay the materialmen, and tlie owner who paid the liens is subrogated to the right of materialmen to recover upon the contractor’s bond.</p>

Troup, Judge. In June, 1916, the Farmers State Bank of Decatur was declared insolvent, and, upon the application of the state by the attorney general, was placed in the hands of a receiver. In 1915, Frank lams deposited certain sums of money with this bank, and received certificates of deposit aggregating $12,000.

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

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

<p>1. Eminent Domain: Condemnation: Petition: Description op Land. A petition to condemn tlie land of another for the use of a railroad is the basis of the proceeding and must accurately describe the tract sought to be condemned.</p> <p>2. -: -: —-: -. A petition containing inaccurate statements that are material respecting the dimensions of the land affected will render condemnation proceedings void that are held thereunder.</p>

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

<p>1. Statutes: Construction. When a statute is susceptible of two constructions, under one of which it is clearly valid, while under the other its validity may be doubtful, that construction which makes sure its validity will ordinarily be given.</p> <p>2.'-: Constitutionality: Stock-Yards. Section 134, Rev. St. 1913, construed to apply to all public stock-yards in the state, and, as thus construed, held not to deny to appellant the equal protection of the law under the Fourteenth Amendment.</p> <p>3. Stock-Yards: Regulation. Under its general police power, the state may regulate charges at public stock-yards.</p> <p>4.--: -: Constitutional Law. The legislature may delegate to the state railway commission power to fix and regulate charges at public stock-yards.</p> <p>5. -: Rates: Validity. An order of the state railway commission fixing a charge to be made for corn furnished by a public stock-yards company to its patrons, which does not make allowance for the use of the property engaged in the service, as well as compensation for the corn furnished, held erroneous.</p>

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

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

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

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

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

<p>Habeas Corpus: Custody of Minor. In habeas corpus proceedings to determine the right to the possession of a child, as between the . father and the grandparents, where the evidence is conflicting as to the fitness of the respective claimants, and as to the agreement whereby the possession of the child was formerly committed to the grandparents, the controlling consideration is what is for the best interests of the child.</p>

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

<p>1. Bill of Exchange: Assignment of Funds. “A bill of itself does not operate as an assignment of the funds in the hands of the drawee available for the payment thereof.” Rev. St. 1913, sec. 5444.</p> <p>2. -: -. In order that a draft or order may operate as an equitable assignment of moneys belonging to the drawer in the hands of the drawee, it must be drawn against a' specific fund or debt with such particularity as will clearly show the intention of the parties to charge the special fund.</p> <p>3. -: Promise to Honor Nonexisting Bill. In order that a promise to honor a nonexisting bill shall be enforceable, the promise must so describe the bill that there can be no doubt of its application to it.</p> <p>1. Bill of Exchange: Assignment of Funds. A written promise by a stock commission company to a bank to accept nonexisting bills of exchange to the amount of the net proceeds of stock shipped to it by the drawer — when the bank has taken a bill of exchange from the shipper for a valuable consideration, and live stock has been shipped to and sold by the drawee with proceeds in excess of the amount of the bill- — binds thd drawee and acceptor and operates to transfer the proceeds in its hands to the payee, to the amount of the bill, and the same are not liable to attachment or garnishment by other creditors.</p> <p>2. -: -. Where in such a transaction neither the drawer nor drawee is asserting any right to the fund as against the payee, no other creditor of the drawer, in the absence of fraud, has any right to such proceeds.</p>

<p>Error to the district court for Pierce county: William Y. Allen, Judge.</p>

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

<p>1. Divorce: Condonation: Avoidance. The conduct of a husband towards his wife, which would not alone support a decree of divorce on the ground of extreme' cruelty, may nevertheless be sufficient to avoid a condonation extended to the husband by the wife for such cruelty.</p> <p>2. -: Alimony: Sufficiency of Evidence. Evidence examined, and held to sustain the decree of divorce and the amount allowed for alimony.</p>

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

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

<p>Appeal from the district court for Howard county: James R. HaNNA, Judge.</p>

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

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

<p>Guaranty: Validity. A verdict for defendant in an action on a guaranty may be sustained by proof showing that he refused to become guarantor when sober, but signed it when, by drunkenness, he was so far deprived of his reason as to render him incapable of understanding the character and consequences of his act, and that he rescinded the contract within a reasonable time after recovering his senses.</p>

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

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

<p>1. Jury: Qualifications : Opinions. An opinion of a juror. on the merits of a criminal charge, if based solely on rumor or report, does not of itself disqualify him, where his voir dire examination Shows that he can return a fair and impartial verdict upon the evidence adduced at the trial under the instructions of the court.</p> <p>2. Criminal Law: Instructions: Opinions of Talesmen. Failure to instruct the jury specifically to disregard opinions expressed by rejected talesmen on their voir dire examination will not require a reversal, where the instructions as a whole direct the jury to base their verdict alone on evidence adduced at the trial.</p> <p>3. -: Joint Information: Separate Trials. Under an information charging two defendants with murder in the first degree, one as principal and the other as accessory before the fact, failure of the trial judge, on his own motion, to require separate trials held not error.</p> <p>4. -: Confessions: Proof. Testimony that a confession was voluntary, or that there were no promises, threats, or inducements to influence defendant to make it, is not objectionable as being an opinion or a conclusion, where, the circumstances under which the confession was made are in evidence.</p> <p>5. -: -: Foundation. A. foundation for admitting in evidence a confession of guilt may be established by testimony of a witness that it was made to him and that neither he nor any one else in his presence or hearing made any promises or threats.</p> <p>6. -: -: Admissibility. Where two defendants are charged with murder in the first degree, one as principal and the other as accessory before the fact, a confession by the principal, if ad-mi tied by the accessory to be true, may be admitted in evidence against the latter.</p> <p>7. -: Trial: Applause. Laughter and applause by the audience during the trial in a felony case, held not. ground for setting aside the verdict, where the presiding judge vigorously rebuked the misconduct and directed the jury to disregard it, prejudice to the complaining party not being shown by the record.</p> <p>8. -: Instructions: Oral Modification. An oral statement from the bench directing the jury that testimony of the witness being examined by counsel applies alone to one of two joint defendants is not an instruction within the meaning of the statutes requiring instructions to be in writing and forbidding oral modifications thereof.</p> <p>9. Homicide: Sentence. Under an information charging two defend- ' ants with murder in the first degree, one as principal and the other as accessory before the fact, the duty of fixing the punishment of each at death or life imprisonment, if both are convicted, is imposed by the Criminal Code upon the jury.</p>

<p>1. Trial: Negligence: Instruction: Evidence. It may be reversible error to submit to the jury, as grounds for recovery, alleged acts of negligence which are wholly unsupported by the evidence.</p> <p>2. -: Instructions: Quoting Pleadings. It is generally not commendable practice, in stating the issues to the jury, to quote at large from _the pleadings. It may, and frequently does, mislead or prejudice the jury so as to require a reversal.</p> <p>3. Street .Railways: Injury to Child: Last Clear Chance. If a street car is moving at about four miles an hour, and is stopping for passengers standing near the track at its stopping place apparently intending to enter the car, it is not proof of negligence under the doctrine of the last clear chance that the inotorman saw a five-year old boy running towards a man and woman among such passengers, and assumed that the boy was in their care and would enter the car with them, although the boy was in fact intending to cross the track in front of the car, and ran agafnst, or was struck by, the car and injured.</p> <p>4. -: -: Negligence: Sufficiency of Evidence. It is held that the evidence indicated in the opinion was not sufficient ’"'roof of the various charges of negligence submitted to the jury.</p>

<p>1. Intoxicating Liquors: Prohibitory Laws: Construction. The purpose of chapter 187, Laws 1917, is declared to be “for the immediate preservation of the public peace, health and safety.” Section 58. Such legislation must be liberally construed in furtherance of the high moral purposes aimed at.</p> <p>2. -: -: -: Forfeitures. In ascertaining the legislative will, it must be borne in mind that forfeitures are not favored in the law, and even this statute must not be construed to forfeit the property of innocent citizens, unless, from the statute in the light of its object and existing conditions, it is manifest that the legislature considered such forfeiture necessary fer the “preservation of the public peace, health and safety.”</p> <p>3. -: Transportation: Automobiles: Nuisance. An automobile used in the unlawful transportation of liquors is declared to be “a common nuisance and may be abated as in this act provided.” Section 42.</p> <p>4. Nuisance: Abatement: Intoxicating Liquors. Sections 28 to 33, relating to buildings or places where liquors are kept for sale or for some unlawful purpose, define a nuisance, and declare that such nuisance shall be abated by an action in equity, and that personal property which is condemned shall be sold and the “proceeds of the sale of the personal property * * * shall be applied in payment of the costs of the action and abatement, and' the-balance, if any, shall be paid to the defendant.”</p> <p>5. Intoxicating Liquors: Transportation: Nuisance. The provision in regard to the unlawful transportation of-liquors also declares that a vehicle so used is a nuisance, and that such nuisance shall be abated as in this act provided.</p> <p>6.--: -: Confiscation of Automobile: Rights of Mortgagee. Under these provisions, if an automobile so used is declared a nuisance, it must be disposed of as so provided, and the interest of the owner or mortgagee who has notice of such unlawful use thereof must be sold and the proceeds applied as provided in section 33 of the act.</p>

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

<p>Appeal from the district court for Kearney county: William C. Dorsey, Judge.</p>

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

<p>Judgment: Supplemental Proceedings: Issues. In supplemental proceedings upon a judgment, the parties to the action cannot reliti-' gate the findings upon which the original judgment is based.</p>

<p>Appeal: Replevin:- Evidence: Sueeiciency. In a trial before a .jury where the finding is based on conflicting evidence, the verdict will not be disturbed unless clearly wrong. The evidence examined, and held sufficient to support the verdict of the jury.</p>

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

<p>1. Insurance: New York Corporation: Insolvency: Administration of Assets. In case of the insolvency of an insurance corporation organized under the statutes of New York, the intervener, who is the insurance commissioner of that state, has the right by virtue of the insurance laws of that state, and it is his duty, to take charge of all the property and credits of the insolvent corporation in this state, and to administer them in behalf of its creditors.</p> <p>2. -: - — : -. By virtue of the chartered rights of appellee which Nebraska recognized and accepted, this intervener has the title to all the property and credits of the defendant in Nebraska as well as New York, for the purpose of settling with creditors.</p> <p>3. Corporations: Insolvency: Assets: Administration by State Officer. When a legislature provides for a state officer to administer the affairs of a corporation, and to settle with its creditors in case it becomes insolvent, this condition is a charter right of the corporation, and this right follows a corporation wherever it goes.</p>

<p>1. Attachment: Jurisdiction: Irreoularities. The rule obtains in Nebraska that, by an affidavit for and publication of notice of the pendency of an attachment suit, the court obtains jurisdiction by the levy of the attachment; and subsequent irregularities in a proper proceeding render the proceedings voidable, but not void. Crowell v. Johnson, 2 Neb. 146.</p> <p>2. -: -. Held, in the instant case, that affidavit for service by publication and published notice, when- construed together, gave the court jurisdiction to sell this property at sheriff’s sale.</p>

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

<p>Appeal from the district court for Grant county: jlSayabd H. Paine, Judge.</p>

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

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

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

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

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

<p>1. Principal and Agent: Acts oi? Agent. An act of an agent, although without actual authority from his principal, may be with such apparent authority as .to bind the principal.</p> <p>2. Landlord and Tenant: Release: Question for Jury. The evidence indicated in the opinion as to the surrender of the premisos and an agreement by plaintiff’s agent to release defendant from further payments of rent held sufficient to raise a question for the jury.</p>

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

<p>1. Secondary Evidence. Where the contents of an order to plaintiff’s intestate, a section foreman, to measure overhead wires, is an important issue in a case, and there is evidence that the order has been lost, or was last seen in the hands of agents or employees of defendant, secondary evidence of its contents may properly be received on behalf of the plaintiff.</p> <p>2. Trial: Rebuttal Testimony. Where plaintiff’s witnesses testify that they saw and read such order, that it was written in pencil- with the name of the roadmaster attached, and defendant’s witnesses testify that the order given was typewritten and mimeographed, and that no orders of this nature were ever given in any other manner, it is not erroneous to permit other orders to the section foreman in the form described by plaintiff’s witnesses to be introduced in rebuttal.-</p> <p>3. New Trial: Newly Discovered Evidence.- A motion for a new trial upon the ground of newly discovered evidence, the evidence in support of which is set forth in the opinion, held, properly overruled.</p> <p>4. Appeal: Conflictino Evidence. Where the evidence is substantially conflicting upon material points, the court, in determining questions of law presented, accepts the verdict of the jury in favor of the plaintiff as determining the facts upon such disputed points.</p> <p>5. Trial: Motion to Strike. A motion to strike the whole of an answer to a question is properly overruled, if part of the answer is properly admissible.</p>

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

<p>1. Deeds: Mental Capacity: Validity: Presumption. Where a deed was executed, with practically no consideration, by a father over 80 years of age, of nearly 'all of his property, which was worth about $30,000, to one son, with whom he lived, excluding his other children from all but a small share of his estate, under a misconception of the real value of the property, and without any apparent reason for such action, the transaction will be closely scrutinized, and the presumption is against the validity of the deed.</p> <p>2. -: -: Evidence: Sufficiency. Evidence examined and. set forth in the opinion, held to be insufficient to uphold the conveyance.</p> <p>3. -: Suit to Annul: Laches. The invalid conveyance iwas made about six years before the death of the grantor. The action was brought by the other heirs of the deceased a few months after his death. Held, that there was no laches on their part in bringing the action.</p> <p>4. Appeal in Equity: Trial de Novo. The petition sought to set aside a deed on the ground of mental incompetency of the grantor and undue influence. The district court found that the grantor was mentally incompetent to execute the conveyance. The appeal in such a case brings up the entire record for review, and if either ground, or both, are found by this court, upon a trial de novo to be'sustained by the evidence, it may base its decision upon such grounds, irrespective of the fact that the decree of the district court was based upon a finding of mental incompetency alone.</p>

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

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

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

<p>1. Judgment: Motion to Vacate: Payment. After a judgment has been paid in full and the cause dismissed, a motion to set it aside presents no issue.</p> <p>2. Appeal: Theory of Case. A motion that states sufficient facts for a petition for damages on account of fraud will be regarded as a petition for that purpose if the parties appear and try the issue presented.</p> <p>3. Appearance. The district court has jurisdiction of actions for fraud, and may obtain jurisdiction of the person of the defendant if he appears and asks a dismissal wholly upon untenable grounds.</p> <p>4. Pleading: Sufficiency After Judgment. If a pleading alleges facts which entitle the pleader to relief, and there is a complete trial of the issue which it was plainly intended to present, without objection which would challenge technical defects in the pleading, such pleading will be regarded sufficient after judgment.</p> <p>5. Appeal: Affirmance. When a common-law action is tried to the court without demand for jury, the findings and judgment upon substantially conflicting evidence will not be reversed upon appeal unless it is clearly wrong.</p>

<p>1. Lease: Cancelation: Parties. One who executes a lease of real estate, and afterwards sells and conveys the same to another grantee with covenants of title, is a proper party to an action to cancel the lease for fraud and concealment, and may contest the validity of the lease on those grounds.</p> <p>2. Deeds: Cancelation. The consideration for a conveyance of a valuable interest in real estate must itself have some value, and if it is merely nominal, and there are indications of fraud or concealment of essential facts, equity will cancel such conveyance.</p>

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

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

<p>Fraud: Misrepresentation. If representations are made by a vendor of material facts as to tbe value of real estate sold or exchanged by him, and the vendee must resort to an independent investigation to ascertain the truth, and such representations are false, the vendee may rely upon such representations and recover the damages, if any, suffered by him on account of the fraud.</p>

<p>Injunction: Repeated Teespasses. “Concerning simple acts of trespass equity has, in most cases, no jurisdiction, but, if the nature and frequency of trespasses are such as to prevent or threaten the substantial enjoyment of the rights of possession and property in land, an injunction will be granted.” Sitiasen v. Winterer, 76 Neb. 52.</p>

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

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

<p>1. Homicide: Murder: Instruction: Conspiracy. On the trial of a defendant charged with the" shooting and killing of a police officer, it is proper for the court to instruct the jury that they may find the defendant guilty if they find from the evidence beyond a reasonable doubt that the defendant, together with other persons with whom he stands charged, prior to the shooting, formed a common purpose to resist arrest, and that the shot which killed deceased was fired by one of the parties in pursuance of such common purpose or design, when the other necessary elements of the crime of murder are properly defined, and there is evidence to sustain such theory of the killing.</p> <p>2. -: -: Use oe Deadly Weapon. When several persons are jointly engaged in resisting police officers who' attempt, to place them under arrest, and in making such resistance use deadly weapons, each individual who assists in their employment is held to have intended the natural and probable consequences of their use.</p> <p>3. Criminal Law: Instructions. Instructions to a jury must be taken as a whole. A phrase, a clause, or a sentence may not be segregated?from the context in order to .give' it a different meaning from that intended by the trial court.</p> <p>4. Homicide: Information: Instructions. An information charging murder in the first degree charges also murder in the second degree, and, when from the evidence it appears that defendant may have participated in the killing of deceased, but, if so, without premeditation and deliberation, it is not error to instruct the jury on the lesser degree of the crime charged and permit a consideration of that crime.</p>

<p>Negligence: Verdict: Finding: Evidence. In an action for damages caused by negligence of a manager, of a corporation, a verdict against the corporation is inconsistent with a finding that the agent was not negligent, but' such verdict may be sustained, if there is evidence of negligence of other agents of the corporation, which caused the damages.</p>

<p>1. Principal and Agent: Unauthorized Contract: Repudiation. If one repudiates an unauthorized contract entered into by his agent, he must reject it as a whole. He cannot avail himself of those provisions favorable, and reject others.</p> <p>2. Bills and Notes: Evidence: Sufficiency. The evidence indicated in the opinion will not justify this court in setting aside its former judgment on the ground of failure of evidence.</p> <p>3. Appeal: Instructions. A judgment will not be reversed upon appeal because of the giving of an indefinite or incomplete instruction, unless the party complaining offered and requested a more definite instruction, or it appears from the whole record that the jury may have been misled by the instruction given.</p>

<p>1. Corporations: Notice of Indebtedness: Right of Action. The liability of a stockholder in a corporation for failure of the corporation to publish notice of indebtedness required by section - 577, Rev. St. 1913, is in the nature of a penalty for neglect of duty. One stockholder, who is equally in fault in that regard with all other stockholders, cannot maintain such action, as creditor of the corporation, against the other stockholders.</p> <p>2. -: -. In such case, there is no default under the statute until one year after the organization of the corporation.</p> <p>3. -:--: Quasre. Whether such notice is sufficient without the signatures of a majority of the directors, quwre.</p> <p>4. -: Exchange of Assets for Stock. A corporation may exchange property in purchase of its outstanding shares, but the transaction must be in entire good faith, and in no manner injure the rights of its creditors or its stockholders.</p> <p>5. -: -: Rights of Stockholders and Creditors. The relation between stockholders under such circumstances may be regarded as confidential, and, if they are creditors of the corporation, their right to object to such a transfer is analogous to the right of creditors to object to transfers of property by their debtors.</p> <p>6. -: -: Fraud: Evidence. If the transfer is made with the view of securing stockholders against loss on account of existing indebtedness of the corporation, the transfer might he held invalid as against such creditors; but, if at the time of the transfer the remaining corporate property is of such value as to afford ample security for the debts of the corporation, and the business of the corporation continues for several years,' the fact that in the meantime the business has become unprofitable and new debts incurred so that the corporation has become insolvent is not conclusive that the transfer complained of was made with the intention of defrauding existing or subsequent creditors.</p> <p>7. -: -. In such case, a creditor an'd stockholder at the time, with knowledge of the transfer and of the business and assets of the corporation, cannot complain of the transfer because after three or four years the business of the corporation has become unprofitable, and new debts have been incurred exceeding the value of the assets.</p>

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

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

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

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

<p>Wills: Peobate: Notice. In getting service upon heirs and all interested parties in the probate of a will, it will he sufficient to give the county judge plenary jurisdiction if he “shall cause public notice thereof to be given by personal service on all persons interested, or by publication under an order of such court, in such newspaper printed in this state as the judge shall direct.” Rev. St. 1913, sec. 1303.</p> <p>1. County Court: Probate: Vacation: Fraud. The county court has power to vacate a probate procured by fraud and to permit a contest of the will.</p> <p>2. Wills: Probate: Vacation. A judgment of probate, entered upon a proper petition after legal notice, and not challenged for a year and a half, should not be vacated on doubtful or equivocal proofs on the issue of testator’s incompetency or of undue influence.</p> <p>3. -:--: -: Evidence. Evidence on the issues of incompetency of testatrix and of undue influence in the making of a will held insufficient to sustain findings in favor of plaintiff on his petition to vacate the judgment of probate and to contest the will.</p>

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

<p>1. Grain Exchange: Rules: Notice. A rule of the Omaha Grain Exchange, or a custom of its members, that contracts for the sale and delivery of grain sold to its members do not expire until canceled by a party to the contract cannot bind a seller of grain who had no knowledge of such rule, or custom, and only had occasional dealings with a member of the exchange.</p> <p>2. Evidence examined, and held: to sustain the verdict.</p>

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

<p>1. Appeal: Reply. “Where, In the trial of a cause, both parties treat an affirmative defense as traversed, it ■ will be so considered in this court, although the plaintiff filed no reply either before or after judgment.” Missouri P. R. Go. v. Palmer, 55 Neb. 569..</p> <p>2. -: Conflict in Evidence. Where there is a substantial conflict in the evidence on an issue of fact, the finding of the jury thereon will not be set aside on appeal unless clearly wrong.</p>

<p>Original application for writ of habeas corpus.</p>

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

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

<p>Appeal from the district court for Kearney county: William C. Dorsey, Judge.</p>

<p>1. Insurance: Change op Beneficiaky. If the holder of a fraternal beneficiary certificate desires to change the beneficiary named therein, and has done all within his power and knowledge to procure such change to be made by the society, a court of equity, as between conflicting claimants, will treat the change as having been made.</p> <p>2. Cases Distinguished.- The controlling statute having been amended, the cases of Gounsman v. Modern Woodmen of America, 69 Neb. 710, and Urick v. Western Travelers Accident Ass’n, 81 Neb. 327, are distinguished.</p>

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

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

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

<p>Appeal from the district court for Clay county: Ralph D. Bkown, Judge.</p>

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

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

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

<p>1. Master and Servant: Federal Employers’ Liability Act: Action: Pleading. In an action against the employer under the federal employers’ liability act, some specific act of negligence on the part of the employer must be alleged and proved.</p> <p>2. -: -: Negligence. The fact that an engine was moving four or five miles an hour in the switching yards of a railroad company, is not in itself evidence of negligence.</p> <p>3. Evidence. The testimony of witnesses, who were near the place of the accident at the time, that they did not hear the bell, without further explanation, is not sufficient to overcome positive evidence of reliable and competent witnesses that the bell was ringing.</p>

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

<p>1. Appeal: Arbitration: Effect. When an ordinary law action is pending in this court on appeal, and the parties by agreement settle and dispose of the whole controversey, it becomes, so far as this cour.t is concerned, a moot case, and will not be further investigated, but will be dismissed. An arbitration under the statute, without order of court, amounts to such settlement.</p> <p>2. --: Dismissal: Law of the Case. Such order of dismissal becomes the law of the case and will be so regarded upon appeal from a subsequent judgment of the district court on the arbitration, and the judgment of the district court upon such arbitration will, upon appeal to this court, be considered as though there had been no prior litigation between the parties.</p> <p>3. .-: Arbitration and Award: Bill of Exceptions. In such arbitration, the arbitrators must state their findings of fact and conclusions of law. When the agreement for arbitration specifies the particular questions to be determined, and the award substantially meets these requirements, and evidence is taken before the district court upon objection that the award is defective in this respect, and such evidence is not preserved in a bill of exceptions, we cannot find that the court erred in holding the award sufficiently specific in that regard.</p> <p>4. -: Waiver. When objections raised in this court are not discussed in the brief, they will ordinarily be considered as waived.</p>

<p>1. Criminal Law: Variance. A conviction under section 8767, Rev. St. 1913, defining adultery, will not be set aside because the charge was that the accused, being an unmarried man, had sexual intercourse with the prosecuting witness, a married, woman, when the evidence showed that the accused was a married man and the woman a married woman. The variance, if any, would be harmless error.</p> <p>2. -: Evidence. The charge being sexual intercourse in circumstances constituting adultery, which the defendant denied, the state was permitted, over the objection of defendant, to introduce his alleged child in evidence; the man being colored and the woman and her husband white. Held, not error. In the circumstances of the case, the evidence was properly admitted as bearing upon the question whether the accused had sustained improper relations with the prosecuting witness.</p> <p>3. Adultery: Evidence: Corroboration. Evidence examined, and held that the evidence of the prosecuting witness was sufficiently corroborated.</p>

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

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

<p>Elections: Nonpartisan Judiciary Act: Writing Names on Ballot. Under the nonpartisan judiciary act, the voter may write in upon the primary election ballot the name of any person as his choice for nominee for the office, and such votes shall be counted; and “the two persons who received the highest number of votes in said primary” shall have their names placed on the ballot for the general election as the nominees for judges on the nonpartisan judiciary ballot. Rev. St. 1913, sec. 2211.</p>

<p>1. Insurance: Authority op Agent: Estimate. “An agent of a life insurance company, the limitation of whose power is set forth in the application for insurance, which limitation is expressly called to the attention of the applicant, cannot vary the terms of the policy hy an estimate of results of the policy attached by him thereto.” Kaley v. Northwestern Mutual Life Ins. Co., 102 Neb. 135.</p> <p>2. -: Tender: Suppicienoy: Waives. An insurance company offered to pay insured the amount due him under its contract of insurance, hut did not make a formal tender of the money. Insured refused to accept the sum offered and demanded a greater amount. Held, a more formal tender was not necessary to relieve • insurer from liability for interest and attorney’s fees; it appearing that a more formal tender of the money would not have been accepted.</p>

<p>Forcible Entry and Detainer: Direction of Verdict. When on the trial of a suit in forcible entry and detention it appears from the evidence of plaintiff that she had neither the title nor the right to possession of the real estate when suit was instituted, it ia not error to direct a verdict for defendant.</p>

<p>1. Schools and School Districts: Public Building:- Bond of Contractor: Construction. The statute which requires public officials to take a bond from a contractor to pay for labor and materials used in constructing a public building is absolute, and the contract and the bond will be construed to protect such laborers and materialmen if the terms of the contract and bond are ambiguous, or if they will admit of such construction.</p> <p>2. -: Contract: Bond: Presumption. If the contract provides that a bond shall be given, but does not name any conditions to be inserted in the bond, it will be presumed that the intention of the parties was that the statutory bond should be given.</p> <p>3. -: -: -: Construction. In such case, if the bond contains the conditions usually inserted in a bond for construction of a private building, with a proviso that of itself would imply that it was for the protection of laborers and materialmen, the contract and bond, taken together, will be so construed.</p> <p>4.--: Construction of Sciiooliiouse: Bond: Labor and Materials. A contract and bond “for the erection and completion of a school building ” contemplates that the contractor will furnish the labor and materials, and the bond undertakes that he will do so, and, liberally construed as an attempted compliance with the statute, it includes payment by the contractor for the labor and materials.</p> <p>5. -: —-: -: Sureties: Waiver. The statute requires two sureties upon such bond, but if there is but one surety, and the bond names him as the sole surety, and he knows that it is not intended that any other shall join him as surety, by signing he waives the defect.</p> <p>6. -: -: -: Acceptance: Validity. If a bond is accepted and acted upon by the school board, it amounts to approval, and the bond will not be held void because the contract provides that ,it may be approved by the cashier of a bank, nor because it nominally runs to the district by name instead of to the board.</p>

<p>1. Appeal: Statute Limiting Time. Statutes shortening the time within which appeals or proceedings in error can he taken do not, in the absence of language showing clearly a legislative intention to the contrary, apply to judgments, decrees, or orders rendered or entered before such statutes took effect.</p> <p>2. Action: Vendor and Purchaser: Joint Contract. A contract “by and between John H. Christner and Charles A. Ready v ••• - of the first part,” and the plaintiff, “of the second part,” agreeing that the party of the one part sells to the party of the other part certain described lands, is the joint contract of Christner and Ready; and an action for failure to perform the same may be brought against them jointly, although it appears on the face of the contract, that the lands described therein are owned by them in severalty.</p> <p>3. Vendor and Purchaser: Contract: Abstract. The agreement to “give a good and sufficient warranty deed and abstract” contemplates that the abstract will present a merchantable title, which is clear as shown by the record, and does not require litigation to complete it.</p>

<p>1. Wills: Devise eos Public Park: Estate Created. A will contained this provision: “Third. I give and bequeath to the city of Tecumseh in Johnson County, Nebraska, lots eight (8) nine (9) ten (10) and eleven (11) in block one (1) in Graff & Ells-worth’s Addition to said city, the same to be known as Brandon Park, and always to be used as a public park; and I also give and bequeath to said city the sum of five hundred ($500.00) dollars to be used to improve the same under the direction of the city council of said city of Tecumseh and request that donations of work, etc., be made by the citizens to assist in improving same.” Held, that the devise created an estate upon a condition subsequent, namely, that the lots and money be used for the purpose expressed in the will.</p> <p>2. -: -: Breaci-i: Recovery by Heirs. In such case, upon failure by the city to comply with the condition attached to the gift within a reasonable time, the heirs of the testatrix can maintain an action to recover the property.</p>

<p>Appeal from the district court for Lancaster county: Leonard A. Flansburg, Judge.</p>

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

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

<p>1. Carriers: Injury to Live Stock: Action for Damages: Burden oe Proof. “In. an action to recover damages from a carrier for injury sustained hy live stock in transit, which are accompanied hy the owner or his agents, the burden is on the owner to show that the loss complained of was occasioned hy the carrier’s negligence.” Gleve v. Chicago, B. & Q. II. Go., 77 Neh. 166.</p> <p>2. -: -: Interstate Shipments. The act of the federal congress, known as the “Carmack Amendment” (8 U. S. Comp. St. 1916, sec. 8604a, p. 9289), does not enlarge or change the common-law liability of carriers for injuries to live stock in interstate shipments.</p> <p>3.. -: Live Stock: Duty to Feed and Water. When the owner, or his agent, accompanies the shipment of stock, the duty of feeding and watering the stock when placed in the carrier’s yards is primarily upon the owner. If he fails to do so, then the duty is upon the carrier. The duty is also upon the carrier to furnish the proper facilities for the feeding and watering of the stock.</p> <p>4. -: Feeding Live Stock: Liability. Where the carrier fed and' watered the stock, the owner being present, and it appears that some of the stock was injured hy reason of poison being contained in the hay fed to them, the hay being furnished by the carrier, held, that in such case the carrier is not an insurer of the stock against loss by reason of the poisoned hay, but would be liable only for negligence.</p>

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

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

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

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

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

<p>1. Notaries: Negligence. Proof that a notary public signed a certificate of acknowledgment to a forged deed, and that no other persons of the name of the purported grantors could be located who might reasonably have made the acknowledgement in question, or have led the notary to believe that they were the owners of the land, is sufficient to establish a prima facie case of negligence or misconduct against the notary in failing to have satisfactory evidence of the identity of the persons making the acknowledgment.</p> <p>2. Petition examined and held to state a cause of action.</p> <p>3. Evidence: Comparison op Handwriting. In an action on the bend of a notary public for making a false certificate of acknowledgment to a deed, the official signature on her bond filed with the county clerk may be received in evidence for the purpose of comparison of handwriting.</p> <p>4. Deeds: Insertion op Name op Grantee. Unless a contrary intention appears, the regular execution and delivery of a deed vests in the person to whom it is delivered implied authority to complete it by inserting the name of the intended grantee where this has been left blank.</p> <p>5. -: -1 — . Where a deed appears to be regularly executed, acknowledged and delivered, it is prima facie evidence, as to innocent third parties, of the authority of the person holding the deed to insert her name as grantee.</p>

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

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

<p>Appeal from the district court for Webster county: William C. Dorsey, Judge.</p>

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

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

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

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

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

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

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

<p>Railroads: Injury to Employee: Negligence: Sufficiency of Evidence. On the issue of negligence on the part of defendant in setting a brake on a railroad freight car, the evidence outlined in the opinion held insuffi^pnt to sustain a verdict in favor of plaintiff.</p>

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

<p>Municipal Corporations: Public Bathikg Place: Liability for Death. . In absence of statute, a city, in maintaining a public park and a municipal beach therein for bathing and other aquatic recreations, performs a governmental function, as distinguished from a proprietary or business enterprise, and is not pecuniarily liable for personal injuries, resulting from the negligence of city officers to persons exercising such municipal privileges; and neither the character of the municipal function nor the exemption from liability is changed by a small incidental revenue derived from the rental of city buildings used in connection wth the public park or the municipal beach.</p>

<p>1. Wills: Construction: Inconsistent Clauses. The settled rule of law is that, if a deed or will conveys an absolute title in fee simple, an inconsistent clause in the instrument attempting merely to limit that title or convey to the same person a limited title in the same land will be disregarded.</p> <p>2. -: —: Intext. When, however, there are different provisions in the same will as to the disposition of specified property, they must he construed together to ascertain the intention of the testator.</p> <p>3. -: Devise: Construction. The statement in Loosing v. Loosing, 85 Neb. 66, “If a testator in his will devises an estate in fee simple, a subsequent clause attempting to devise over any part of that estate is void,” is not approved. The devise and the attempt to devise over must be construed together to ascertain whether the testator intended to convey a life estate to one and remainder to another.</p> <p>4. -: -: -. The clause, “It is my will” that the land devised to his daughters “shall descend to their children or heirs at their death, and this land is willed to them with this charge,” although not technically exact, must, in the light of the whole will, be construed to give his daughters a life estate, and the remainder to “their children or heirs.”</p> <p>5. -: Construction: “Children or Heirs.” The words, “children or heirs,” are construed, in the light of the whole will and surrounding circumstances, to mean their children, if they leave any, otherwise to their natural heirs.</p> <p>6. Discussion Disregarded. The discussion in the commissioner’s opinion in Spencer v. Scovil, 70 Neb. 87, was rejected by the court, and should be disregarded.</p>

<p>Original proceeding by the state to disbar respondent from the practice of law.</p>

<p>1. Intoxicating Liquors: Information. An information which charges only that the accused kept intoxicating liquors ‘‘for unlawt'.il purposes” is too indefinite to charge a felony under section 11, ch. 187, Laws of 1917.</p> <p>2. Criminal Law: Information, Service of Copy. In prosecutions for felony, the statute requires that a copy of the information be served upon the defendant at least one day before the trial.</p> <p>3. -: -. When defendant objects to going to trial because no copy of the information has been given him, and the objection is overruled without any suggestion that such copy has been served, such ruling cannot be sustained unless the record affirmatively shows such service.</p> <p>4. -: -. If the briefs do not quote nor refer to such evidence in the record, the court will not presume that such evidence exists.</p> <p>5. -: Arraignment. A judgment of conviction for felony will not be affirmed unless the record shows that the accused was arraigned and given an opportunity to plead before the trial began. (Letton, Dean, and Aldrich, JJ., dissent.)</p> <p>6. -: Instructions: Degrees of Guilt. Under section 56, ch. 187, Laws 1917, the first and second offenses are misdemeanors with different penalties attached, and the third offense is a felony. In a prosecution' for felony under the act, the defendant may be acquitted of the felony but convicted as for a first or second offense. The instructions should be given upon that theory, especially when the evidence as to former offenses is more doubtful than as to the principal offense charged.</p>

<p>Appeal from the district court fo.r Adams county: 'William C. Dorsey, Judge.</p>

<p>Appeal from tlie district court for Adams county: William O. Dorsey, Judge.</p>

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

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

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

<p>Appeal: Conflicting Evidence. “Under the employers’ liability act (Laws 191E, ch. 198, as amended, Laws 1917, ch. 85), 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.” Miller v. Morris cC- Go., 101 Neb. 169.</p>

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

<p>1. Parol Evidence: Local Custom. Where local custom or usage has given to a term a special meaning of general acceptance in a certain line of business, parol evidence is admissible, in the case of a written contract, to show such meaning. Such evidence does not vary the terms of the written instrument, but merely aids, in ascertaining the intention of the parties by showing the true significance of the terms employed.</p> <p>2. Public Lands: Homestead: Existing Improvements. As against all parties except the United States, an entryman on public lands under the homestead laws is entitled to all existing permanent improvements on the land on which he files, and where a trespasser, or a former entryman, has erected permanent improvements on public lands, which are not removed at the time of an entry thereon under the homestead laws, an agreement on the part of the entryman, who has successfully contested the original entry, to pay for such improvements is unenforceable for want of consideration.</p>

<p>Vendor and Purchaser: Fraud: Relief. One who in response to a material inquiry gives an equivocal and misleading answer which is intended to convey, and does convey, to an intending purchaser, to bis prejudice, a false and erroneous impression, but for which, be would not have entered into a contract, is guilty of such fraud as will justify a court of equity in setting aside the contract, at the suit of the injured party.</p>

<p>Appeal from the district court for Douglas county: Arthur. O. Wakeley, Judge.</p>

<p>1. Statutes: Amendment. An amending statute was passed with an emergency clause amending section 5119, Rev. St. 1913. Afterwards at the same session another act without an emergency clause was passed and approved amending the same section. Held, that the first act was in force until the later act became operative' three months after the adjournment of the session.</p> <p>2. -: -. Where, by amendment and repeal, the words of a former statute or section of a statute are changed in some respects, but it is intended that the statute shall continue to operate, it is not strictly a repeal, but a continuation of the former law as amended.</p> <p>3. Municipal bonds should be issued in conformity to the proposition adopted by the electors, and to the statute in force at the time of their issuance.</p> <p>4. Statutes: Presumption. The legislature must be presumed to know the state of legislation, more particularly the changes in the former law made by amendments during its session, and to intend the consequences of its action.</p>

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

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

<p>Original application for permission to levy an attachment.</p>

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

<p>1. Fraudulent Conveyances: Conveyance by Parent .to Child. ' “A conveyance without fraudulent intent, by a solvent man, of lands to his wife or child, is presumed to have been made in consideration of his moral obligation for the support and maintenance of the grantee, and, in the absence of evidence of a contrary intent, will be held to have transferred the entire title, both legal and equitable, so that the transaction cannot be successfully assailed by subsequent creditors of the grantor.” Hill v. Sohmuolc, 65 Neb. 173.</p> <p>2. -: Intent. The question of fraudulent intent is to be considered as of the time when the conveyance is made, and with reference to the particular conveyance alleged to have been fraudulent as against creditors.</p>

<p>1. Carriers: Bills oe Lading: Rights oe Bona Fide Purchaser. Wliere the owner of goods lias clothed another with apparent ownership through the possession of an indorsed hill of lading, or one made out to bearer, a bona, fide purchaser or pledgee for value to whom such bill of lading is transferred, or to whom a receipt is transferred that has been obtained by means of the possession of the bill of lading that shows title to such bill of lading in the person transferring the receipt, is protected, because the real owner is estopped from asserting ownership when he voluntarily places the means within the hands of another with which to mislead persons who without notice advance value thereon.</p> <p>2. Subrogation: Rights of Stjbety. The right of a surety to be subrogated to the rights of a creditor is not prejudiced by a stipulation between creditors and the principal that certain perishable property shall be sold and the proceeds delivered to a trustee to be held to await the decision in a suit to be brought against the surety, where, the suit having been commenced, the trustee is made a party and the fund held by him is subject to the court’s order.</p> <p>3. Principal and Surety: Subbogatiow. The dismissal by a creditor of a replevin suit against a defendant, who is the principal on a surety bond, where the sheriff’s return shows “no property found,” does not affect the surety’s right of subrogation, and he is not thereby discharged.</p>

<p>Appeal -from the district court for Nance county: George PI. Thomas, Judge.'</p>

<p>Appeal from the district court for Knox county: William Y. Allen, Judge,</p>

<p>1- Appeal: Time: Partition. Where there is a conflict as to title in partition proceedings, and issues are framed, a trial had, and a final decree quieting the title rendered, parties desiring to appeal from the decision on this question must do so within the statutory time after such decree is rendered. Peterson v. Damonde, 95 Neb. 469.</p> <p>2. -: -: Order oe Confirmation. In such case an appeal from an order of confirmation of sale, taken more than a year after the decree quieting title, does not bring up the issues as to title.</p> <p>3. -: -: Title. And where the only controversy in such an appeal is upon the title, and not upon the partition proceedings, an appeal from the order of confirmation will be dismissed.'</p>

<p>1. Trial: Instructions. The court properly refused an instruction which stated that the matters recited therein, which related to only a part of plaintiff’s cause of action, would, if believed by the jury, be a complete defense.</p> <p>2. Appeal: Damages: Evidence. A statement of the witness’ estimate in giving the amount of his damages is not alone sufficient to support a verdict; but allowing such statement after evidence of the witness of various items of damages is not necessarily prejudicially erroneous, when the record shows conclusively that the verdict must have been based upon the items of damages so proved, and not of the incompetent estimate of the witness-</p> <p>3. Payment: Evidence. If money has been placed in the hands of a third person with which to satisfy plaintiff’s claim, the fact that plaintiff relied upon such deposit will not amount to a satisfaction, unless it appears that the plaintiff agreed to accept such arrangement and released defendant.</p> <p>4. Evidence: Offer of Writing. Mérely offering a writing in evidence, not signed by the party to be charged, is not proof of its' contents.</p> <p>5. Payment: Evidence. If plaintiff had received the money deposited, it would have satisfied his claim. Evidence that he had not received the money was therefore competent.</p> <p>6. Appeal: Payment: Evidence. It was not prejudicial error to allow evidence tending to show that there was in fact no money deposited for plaintiff’s claim, since no money was paid him, and there was no competent evidence that he had agreed to accept the depositing of the money as satisfaction of his claim.</p> <p>7. Depositions: Incompetency: Waiver. If no objection is made to a deposition, and both parties read therefrom as evidence, neither party can thereafter object that the deposition was incompetent.</p> <p>8. Fraud: Evidence: Sufficiency. The evidence• referred to in the opinion is found to support the verdict.</p>

<p>1. Mortgages: Application for Deficiency Judgment. An application for a deficiency judgment that is treated as a continuation of the original mortgage foreclosure action does not come within the meaning of section 8257, Rev. St. 1913, which provides that such proceeding must first he authorized ,hy the court.</p> <p>2. Names. Under the rule of idem sonans, the name “Asa W. Wine-gar,” when used in a notice of service hy publication in a foreclosure action, is sufficient to confer jurisdiction upon the court to determine the rights of one whose real name is “Aseph W. Winegar.”</p>

<p>Appeal from the district court for Boyd county: Robeet R. DicksoN, Judge.</p>

<p>Highways: Destruction oe Hedge: Injunction: Evidence. Suit to enjoin a road overseer from cutting down and removing a hedge, claimed hy the overseer to he an encroachment upon the public highway. Evidence examined, and held to support the decree of the trial court.</p>

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

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

<p>1. Divorce: Decree: Modification: Custody or Child. In a decree oí divorce, a provision f.or the temporary custody of a child until the further order of the court may be modified on motion.</p> <p>2. Appeal: Failure to Plead Pacts. In a suit in equity, a decree, responding to issues fairly raised, fully tried and properly decided under allegations of a petition filed by defendant, will not be reversed on appeal merely because plaintiff in the first instance failed to plead facts, the denial of which would raise such issues.</p> <p>3. Divorce: Custody of Child. In determining the custody of an infant child, the best interest of the child is the controlling consideration.</p>

<p>1. Taxation: Illegal Assessment: Remedy. “The remedy provided for the taxpayer by the first subdivision of section 162 (Rev. St. 1913, sec. 6491) is available only when the property was wrongfully assessed, either because exempt from taxation or because the tax levied had already been assessed thereon and paid.” Darr v. Dawson County, 93 Neb. 93.</p> <p>2. -: Excessive Valuation: Remedy. The remedy given by the first subdivision is not available to correct overvaluation of the owner’s land, caused by the failure of the taxing authorities to assess separately a mortgage interest in the land, and to deduct the amount thereof from the. total assessed value of the land. In such case the remedy of the taxpayer, where the law provides for such deduction, is to make his complaint before the board of equalization.</p>

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

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