Volume 104 — Nebraska Reports

<p>Error to the district court for Douglas county: William A. Redick, Judge. Ruling on Stipulation.</p>

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

<p>1. Indictment and Information: Variance. An immaterial variance between the complaint on which defendant was given a preliminary-hearing and the information filed is not sufficient basis for a motion to quash the information.</p> <p>2. Homicide: Murder in First Degree. Where a party, discovered in the act of burglarizing a building, attempts to escape, and, in furtherance of such attempt, shoots and kills another, such killing may constitute murder in the first degree under section 8581, Rev. St. 1513, although the killing may not occur at the site of the burglary.</p> <p>3. Criminal Law: Instructions. Instruction No. 12, when read in connection with the other instructions given, field free from error.</p> <p>4. -: -. A -judgment of conviction will not be set aside merely for the giving of an instruction which, because of apparent errors in phraseology, is rendered meaningless, when the other instructions given constitute a clear and correct exposition of the law applicable to the case, and no prejudice to defendant appears.</p> <p>5. Homicide: Premeditation. No special period of time for premeditation and deliberation is required in order to constitute the unlawful taking of human life murder in the first degree.</p> <p>o'. -:Evidence: Sufficiency. Evidence outlined in the opinion held sufficient to sustain the verdict.</p>

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

<p>The controlling questions presented are covered by the opinion in Francis v. State, ante, p. 5.</p>

<p>Descent and Distribution: “Lawful Issue.” The term “lawful issue,” as used in the first subdivision of section 1266, Rev. St. 1913, held to mean descendants generally, and not merely children, and to entitle the great-grandchildren of an intestate to share in the inheritance of real estate according to the rights of representation.</p>

<p>Partition: Contract: Construction. A contract between two heirs, by which a conveyance was to be made by A. of the shares oí all the heirs in certain lands except that of B. to B., and by B. of her share in certain other tracts of the inherited land to A. by warranty deed, does not require a better title to be conveyed than that held by their intestate. The covenants of warranty relate to the title to the shares, and not to the title to the land.</p>

<p>1. Justices of the Pe^e: Judgment: Vacation. Justices of the peace and. county courts exercising the jurisdiction of justices of the peace have no equity power to vacate a judgment after the time to appeal therefrom has expired.</p> <p>2. -:-:-. The statutory power to vacate a fraudulent judgment procured at a former term of court by the prevailing party does "ot extend to' a justice of the peace or to a county court exercising the jurisdiction of a justice of the peace.</p> <p>3. -: -: Fraud: Injunction. Where plaintiff in an action béfore a justice of the peace procures by fraud and perjury an unconscionable judgment, prevents an appeal therefrom by the same methods, and attempts to enforce the fraudulent judgment in another county by means of a transcript and an execution, the district court in which the transcript is filed may, on a proper petition in equity, enjoin the judgment creditor and the sheriff from proceeding under the execution.</p>

<p>1. Carriers: Injury to Passenger: Liability. A street railway company cannot evade its duty to passengers by its operating contracts with other corporations, or thus avoid liability for negligence resulting in personal injury to passengers.</p> <p>2. -: Action for Personal Injuries: Damages: Instructions. In an action for personal injuries resulting from the negligence of defendant, it is prejudicial error to instruct the jury, in estimating the damage to plaintiff, to consider “the probable expense of his personal livelihood.”</p>

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

<p>1. Appeal: Abandonment. When the trial court dismisses an intervener from the case, and he takes an appeal to this court, but presents no brief, although it is alleged in the brief of opposite counsel that there is no merit in his intervention, the intervener will be considered to have abandoned the appeal.</p> <p>2. -: Law of the Case. When the principal matters are determined by this court upon appeal, and specific questions are referred to the trial court for trial, the issues so determined become the law of the case as against the parties to the former appeal.</p> <p>3. -: Instructions. In such case the trial court should state the iaw in his instructions to the jury as so determined by this court, and, if he should state a wrong reason for so doing, that would not necessarily render such instruction erroneous.</p> <p>4. -: Affidavit: Evidence. An affidavit filed in support of a motion f-or new trial in the district court will not be evidence of rulings of the court in the trial or in the proceedings preparatory for the trial.</p> <p>5. Witnesses: Competency. A plaintiff who derived title from a decedent is a competent witness as to that title against a defendant who denies her right. If other parties intervene in the action, claiming as representatives of the deceased, against whom the plaintiff would not be allowed to testify as to. transactions with ■ the deceased, sjich testimony would .be competent as against the defendant upon his sole appeal.</p> <p>6. Appeal: Instruction. An instruction that might be erroneous and prejudicial to the plaintiff will not require a reversal on appeal of the party not prejudiced thereby.</p> <p>7. Trial: Affidavit of Juror: Evidence. An affidavit of a juror as to what items the jury allowed or disallowed in computing the amount due, or what the jury believed they had a right to do under the instructions, is incompetent. Such matters arc commonly hold to inhere in the verdict.</p>

<p>1. Criminal Law: Burden of Proof. The burden of proof in a criminal prosecution is upon the state, and if the evidence fails to establish any essential element of the crime, charged, the defendant must be acquitted.</p> <p>2. Sedition: Elements of Crime. In a prosecution under chapter 5, Laws 1918 (Extraordinary Session), the essential element of the offense is the intent to obstruct the government in the prosecution of the war. Words spoken in anger in a quarrel will not justify a conviction, unless there is evidence from the circumstances or the connection in which they were used, or otherwise, that the defendant realized that the effect might be to so obstruct the government, and that he intended that effect.</p> <p>3. -; Intent: Evidence. The evidence indicated in the opinion does not prove such intent.</p>

<p>1. Intoxicating Liquors: Nuisance: Constitutional Law. Section 35, ch. 187, Laws 1917, providing for the assessment of $300 against a building (enjoined as constituting a nuisance) and its owner, under a law relating to intoxicating liquors, is unconstitutional, for the reason that the $300 assessment must be regarded either as a tax or as a penalty. If a tax, it violates section 1, art. IX of the Constitution, providing the manner in which revenues may be raised. If a penalty, it violates section 5, art. VIII of the Constitution, requiring penalties to go exclusively to the school fund, and section 6, art. 1 of the Constitution, guaranteeing the right of trial by jury.</p> <p>2. -: •-: Liquidated Damages. Eighty per cent, of the said $300 assessment, being a payment required’, not to cover costs, but merely for the wrongful violation of a law which is, in itself, criminal, cannot be considered as a judgment or order for the payment of liquidated damages.</p>

<p>1. Judgment by Default: Denial op Intervention. Judgment by default was entered against the corporation in the "sum of $24,625, the petition alleging damages in that amount by reason of the sale to the plaintiffs of shares of stock in the amount of $1,400 and a failure upon the part of defendant to make a loan for $14,000. No special damages were alleged. Afterwards, but during the same term of court, certain stockholders intervened, asking that the default judgment be vacated, so that they might file answers setting up certain defenses, and bring in issue the amount of plaintiff’s damages. The application of the intervening defendants was denied. Held, error.</p> <p>2. Appearance, Denial of: Error. Prior to asking the vacation of the judgment, the intervening stockholders, in behalf of the corporation, and during the term at which the default judgment was entered, made special appearanae, objecting to the jurisdiction of the court over the defendant, for want of notice, no summons having been served upon any officer or agent of the corporation. The special 'appearance was overruled. Held, error.</p> <p>3. Corporations: Foreign Corporation: Service op Summons. At the time of .commencing action, the defendant, a foreign corporation, had never domesticated itself within this state; it was not at the time doing business in this state; nor had it ever filed with the state aüditor written authority for him to aecept service for it. A service of summons upon the deputy state auditor, who never forwarded a copy of the summons to the foreign corporation and was under no duty to forward it, would not constitute' service upon the corporation.</p>

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

<p>1. Constitutional Law: Sunday Labor Act. Chapter 234, Laws 1917, is not discriminative class legislation hy reason of the fact that it imposes upon barbers a more severe penalty for working at their trade on Sunday than that imposed by the general Sunday act, namely, section 8802, Rev. St. 1913.</p> <p>2. Sunday Labor Act: Penalty. Under the police power the legislature may impose such reasonable penalty for a violation of the Sunday law as it may deem reasonably necessary to make the act effective.</p> <p>3. -: Barber Shops. It is within the province of the legislature to provide by law that keeping barber shops open on Sunday is not a work of necessity.</p>

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

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

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

<p>1. Appeal: Affirmance. Where the probative force of the evidence is so strong that the jury would not be justified in rendering any other verdict, this court will not disturb the same.</p> <p>2. -: -. Where the verdict announced by the jury was the only one permissible under the law and evidence, the judgment will be affirmed, and in such case errors occurring at the trial were not prejudicial.</p> <p>3. Insurance: .Burden of Proof. In suit on an accident insurance policy, the burden of proof is upon the plaintiff to show that death was accidental.</p> <p>4. Evidence: Death by Suicide: Presumption. “The presumption against death by suicide is prima facie only and rebuttable. It prevails when the cause of death is unknown. It does not prevail as a presumption in the presence of facts bearing upon the question whether death is intentional or accidental.” Grosvenor v. Fidelity & Casualty Co., 102 Neb. 629.</p>

<p>1. Appeal: Affirmance. Where the verdict announced by the jury was the only one permissible under the law and evidence, the judgment will be affirmed, and in such case errors occurring at the trial were not prejudicial.</p> <p>2. Insurance: Forfeiture. There is no forfeiture or denial of liability when the insurance company treats the policy sued upon as a valid or binding contract.</p> <p>3. -: Defense: Waiver. If the insurance company at all times throughout the negotiations denies liability, and sends blanks to make proof of loss, subject however to its plenary rights to make whatever defense it may have, then there is no waiver of any defense it may have.</p>

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

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

<p>1. Appeal: Time. “The time for taking an appeal from the district court to the supreme court begins to run when the final judgment is entered of record.’" In re Estate of Qetchell, 98 Neb. 788.</p> <p>2. Appeal: Dismissal. An appeal to the supreme court from the confirmation of sale on foreclosure will not be dismissed because appellant has, after the .entry of the decree, disposed of his interest in the real estate, where such disposition is by warranty deed' on whose covenants he may be rendered liable,</p> <p>S. Mortgages: Foreclosure: Appeal: Redemption. The proper procedure, where defendant desires to redeem from a decree of foreclosure after the transcript on appeal is lodged in the supreme court, is to make application to that court for leave to redeem.</p> <p>4. -: -: -: -. Where it is made to appear that defendant in a foreclosure suit, pending the appeal in the supreme court, paid the amount due into the office of the clerk of the district court, by way of redemption, and the owner of the decree accepted the money and entered a release of the decree upon the docket of that court, such redemption will be approved upon payment of the costs in the supreme court by appellant.</p>

<p>1. Waters: Riparian Owners: Common Law. The common law as to the rights and duties of riparian owners is in force in this state, except when altered or modified hy a statute.</p> <p>2. -: -: Accretions. If lands become riparian hy the washing away of adjoining lands, the owner is entitled to the right of a riparian owner to accretions, even though they extend beyond the original boundary line of his land.</p>

<p>1. Statutes: Construction. Statutes pertaining to the same subject-matter should be construed together, and this is particularly true if the statutes were passed at the same session of the legislature.</p> <p>2. -: -. The legislature must be presumed to have had in mind all previous legislation upon the subject, so that in the construction of a statute we must consider the pre-existing law and any other acts relating to the same subject.</p> <p>3. -: -. Where the general intent of the legislature may readily be discerned, yet the language in which the law is expressed leaves the application doubtful or uncertain, the courts may have recourse to historical facts or general information, in order to aid them in interpreting its provisions.</p> <p>4. Constitutional Law: Statute: Construction. Since it ought never to be presumed that the legislature intended to violate the Constitution, a doubtful or ambiguous statute .should be so construed as to uphold its validity.</p> <p>5. Evidence: Judicial. Notice: Illiteracy. The court is entitled to take judicial notice of the facts disclosed by the operation of the federal selective draft law with reference to the inability of thousands of men born in this country to speak' the language of their country, or understand words of command given in English.</p> <p>6. Schools and School Districts: Foreign Language Act. The word “school” as used in chapter 249, Laws 1919, refers to and means a school which presents a course of study such as that prescribed in the compulsory education act, and attendance upon which would satisfy the requirements of that act.</p> <p>7. Constitutional Law: Foreign Language Act: Construction. If the law should be construed to mean that parents or private tutors might teach a foreign language, but that others could not employ teachers to give such instruction in a class or school, it would be an invasion of personal liberty, discriminative and void, there being no reasonable basis of classification.</p> <p>8. Schools and School Districts: Foreign Language Act: Construction. Chapter 249, Laws 1919, does not prohibit the teaching of a foreign language if taught in addition to the regular course of study in the elementary schools, so as not to interfere with the elementary education required by law, and outside of regular school hours during the required period of instruction.</p> <p>9. Constitutional Law: Foreign Language Act: Validty. The act in question is not strictly a penal statute, but is mostly remedial in its nature. It is not broader than its title, and not an unreasonable interference with the liberty or property of the plaintiffs and interveners.</p>

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

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

<p>1. Wills: Revocation: Unborn Issue. A will, not providing for nor showing an intention not to provide for a child subsequently to be born, is revoked pro tanto by the subsequent birth of the child.</p> <p>2. -: Unborn Issue. Where a testator devises all of his property to his wife, making no mention in his will of his unborn child, the instrument does not, on its face, manifest an intention that such child shall not be provided for.</p> <p>3. Descent and Distribution:' Heirship: Proof. “Proof of heirship is not confined to the records of the probate court alone, but may be established by the testimony of any one who knows the facts constituting such relation.” Jetter v. Lyon, 70 Neb. 429.</p> <p>4. -: Quieting Title. An action to quiet title is an appropriate remedy for the determination of title to land, as between a posthumous child, claiming as heir at law, and one in possession, having a life estate in the land and asserting ownership.</p>

<p>1. Carriers: Conflict of Evidence: Doctrine of Res Ipsa Loquitur. When, in an action against a common carrier for personal injuries, the testimony conflicts as to whether plaintiff’s injuries were sustained while she was a passenger and about to alight or whether they were sustained at a distance of six or ejght feet from the car after she had safely alighted, the rule of res ipsa loquitur does not apply.</p> <p>2. Witnesses: Privileged Communications. When plaintiff offers ■ testimony in chief tending to prove freedom from venereal disease, it is competent for defendant to offer testimony tending to show that plaintiff called upon and was examined by a physician, but such physician cannot testify as to the result of his examination.</p> <p>3. Appeal: Conflict of Evidence. When the testimony conflicts, the judgment will not be set aside unless the verdict is clearly wrong.</p>

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

<p>1. Bridges: Materials: Statutory Bond: Obligation oe Surety. Labor and' material entering into and actually used in tbe performance of a contract made under tbe provisions of section 3840, Rev. St. 1913, is within the obligation of a surety company executing a bond pursuant to the statute.</p> <p>2. -: -: -.--: A bond given under statute for construction of a public bridge will be construed in connection with the provisions of the statute authorizing it, and the obligors'must consider coal furnished and used in carrying on the worh as within the obligation of the bond.</p> <p>3. -: Contractor’s Bond: Construction of Statute!. Section 3840, Rev. St. 1913, is remedial in its nature, and must be liberally construed to give proper force and effect for the benefit and protection of labor and materialmen.</p>

<p>Appeal from the district court for Phelps county: Wil'liam C. Dorset, Judge.</p>

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

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

<p>Appeal from the district court for Dawson county: Hanson M. Crimes, Judge.</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.” Bingham v. Pipar, 1'03 Neb. 493.</p> <p>2. -: —;-: Liability of Stockholders. Stockholders in corporations which are in default for want of the annual notice of indebtedness, are not liable for debts of the corporation incurred before default.</p> <p>3. Notes: Pre-existing Debt: Discharge. A note taken for a pre-existing debt will not discharge the original obligation, ^unless it is taken in payment of the debt by agreement.</p> <p>4. Corporations: Notice of Indebtedness: Statute: Constitutionality. Section 577, Rev. St., 1913, is not in violation of section 4, art. Xlb of the Constitution, providing for the liability of stockholders.</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 Hamilton county: George F. Corcoran, Judge.</p>

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

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

<p>Appeal: Instruction: Harmless Error. Where under the evidence it appears that appellant was not injured by an erroneous instruction, the giving of such instruction is error without prejudice.</p>

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

<p>New Trial: Collusion. If in a cause of action attorneys enter into a secret agreement with one of defendants to hold him harmless, in consideration of his assistance to plaintiff, and such arrangement in any way affects the verdict, a new trial will he granted. But in the present case the agreement was not performed and a fair trial was had.</p>

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

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

<p>1, Corporations: Change oe Name: Actions. A contract with a corporation which subsequently changes its name, its identity remaining the same, may sue in the new name of the corporation. It may recover on any contract under the new name that it could, have recovered on under the old name, even a contract of guaranty running to the corporation under its old name. The third paragraph of the syllabus in Crane Co. v. SvecM, 39 Neb. 123, overruled.</p> <p>2. -: -. A change of corporate name does not make a new corporation, but only gives the corporation a new name.</p>

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

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

<p>1. Eminent Domain: Award: Jurisdiction. An appeal to the district court in condemnation proceedings was ineffective because tl'ken too late, but the parties agreed by stipulation in that court that a portion of the right of way condemned should be surrendered and a new route taken across the defendant’s land, and the damages be ascertained in the district court. Held, that, since the court had original jurisdiction of the subject-matter, the stipulation and appearance at the trial conferred jurisdiction of the parties, and the judgment awarding damages was not void for want o£ jurisdiction.</p> <p>2. Appeal: New Trial: Review. Where the district court passes upon the credibility of affidavits filed in support of a motion for new trial, this court will not disturb its findings unless unsupported by the evidence.</p> <p>3. Eminent Domain: Drains: Damages. The general rule as to the ascertainment of damages in condemnation proceedings applies to the taking of land for right of way by an irrigation district. Guts-Chow v. Washington County, 81 Neb. 275, distinguished.</p>

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

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

<p>1. Negligence: Presumption. The general rule, subject to certain exceptions, is that the mere fact that an accident occurs raises no presumption of negligence on the part of either of the parties to it.</p> <p>2. Master and Servant: Assumption of Risk. An employee of a railroad company, • walking along the track in the country, assumes the risk of accident from moving trains.</p> <p>3. -: Negligence. A member of a gang of section-men going for a pail of water, on starting in a particular direction, was called back by the foreman because he could not get through in the direction in which he had started, whereupon he went in the direction indicated, along the railroad track, and was afterwards struck by an engine. Held, not to constitute negligence on the part of the defendant company.</p> <p>4. -: -. Evidence examined, and held not to show negligence upon the part of defendant in failing to exercise care to prevent accident after discovery of decedent in a place of danger.</p>

<p>1. Statutes: Construction. The rule ejusdem, generis, that, where . particular words are followed by general, the general words are restricted in meaning to objects of the like kind with those specified, is only an aid to interpretation, and yields to the rule that an act should be so construed as to carry out the object sought to be accomplished by it, so far as that object can be collected from the language employed.</p> <p>2. Sunday: Construction of Statute. The word's, “or place of business,” contained in a Sunday observance ordinance, set out in the opinion, construed to include moving picture shows.</p>

<p>1. Master and Servant:' Workmen’s Compensation Act: Commutation. Tbe district court has jurisdiction to approve or disapprove an agreement to commute to one lump sum periodical payments of compensation due for partial permanent disability, under the employers’ liability act (Rev, St. 1913, sec. 3681, as amended by section 16, ch. 85, Laws 1917).</p> <p>2. —--: -: -: Application. The statute provides that the application “shall contain a concise statement of the terms of the settlement sought to be approved, together with a brief statement of the facts concerning the injury, the nature thereof, the wages received by the injured employee prior thereto, and the nature of the employment.” Its failure to state the number of periodical payments to which applicant is entitled, or failure to state the degree of permanent disability upon which the number of payments depends, although necessary to a technical statement of a commutation, is not such a defect in the pleading as’ to deprive the district court of jurisdiction to enter its final judgment of approval or disapproval of the settlement agreed to between the parties.</p> <p>3. --: -: Construction. The employers’ liability act is construed liberally and is intended to avoid formal and technical court procedure.</p> <p>1.' Master and Servant: Workmen’s Compensation Act: Commutation. In entering into an agreement under the workmen’s compensation act to discharge the employer from all liability for a permanent disability of the employee upon payment of a lump sum in lieu of periodical payments, the parties are not at liberty to make a settlement at variance with statutory terms; and ascertainment of the amounts of compensation payable periodically under the law is a prerequisite to a contract for commutation. Laws 1917, ch. 85, sec. 16, amending section 3681, Rev. St. 1913.</p> <p>2. -: -: —--In the approval of a commutation of an employee’s compensation from periodical payments to a payment in gross, the public has an interest which it is the duty of the court to protect without regard to the wishes of the parties.</p> <p>3. -: -: -. The workmen’s compensation act does not contemplate the payment of large sums of money to improvident employees or dependents who may lose it and become a charge on the public, but as a general rule requires employers to pay injured employees compensation in small periodical payments at short intervals.</p> <p>4. -: -: -. Under the workmen’s compensation act, in cases of death or permanent disability, commutation or payment in a lump sum by approved agreement is a departure from the general rule and should only be sanctioned upon the statutory terms relating to the exception.</p> <p>5. —-: -: -. Under the workmen’s compensation act the nature and the extent of the injury are material inquiries upon an application for the approval of an agreed commutation from periodical payments to a lump sum for a permanent disability.</p> <p>6. -: -: -: Procedure. The authority to approve a commutation from periodical payments to the payment of a gross sum for a permanent disability has been committed by the workmen’s compensation act to the district court, but the settlement should be submitted to the compensation commissioner for his approval before the district court is asked to approve the commutation.</p>

<p>1. Insurance: Accident Insurance: Amount of Recovery. The fact that the insured under an accident insurance policy occasionally or incidentally performs acts that pertain to an occupation that is classed by the insurer as more hazardous than the occupation named in the policy does not have the effect of reducing the amount of recovery in the event of injury.</p> <p>2. -: -: Change of Occupation: Question for Jury. The question as to whether the insured claiming indemnity under an accident insurance policy has changed his occupation is ordinarily a question of fact to be determined by the jury.</p> <p>3. -: Accident: Notice. A beneficiary under an accident insurance policy, in respect of partial disability, served notice on the insurance company that he was partially disabled for sixteen weeks; that at the time of filing his claim the partial disability continued; that an injured limb then caused swelling and pain when he attempted to walk. Held, that the notice was sufficient, and that the company was liable for the ten-week period of partial disability that -prevailed subsequent to the filing of the original claim, and that was pleaded in plaintiff’s petition.</p>

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

<p>1. Physicians: Privileged Communications. The information given to a physician by his patient, though confidential, is given subject to the understanding, conclusively presumed in law, that, if, the patient’s disease is found to be of a dangerous and so highly con tagious or infectious a nature that it may be transmitted to others unless the danger of transmission is disclosed to them, the physician is then privileged to make so much of a disclosure to such persons as is reasonable and necessary to prevent the spread of the disease.</p> <p>2.--: -: Liability. Where a physician makes such a disclosure, believing that a disclosure was necessary to prevent the spread of the disease, and when the disclosure is made to one who, it is reasonable to believe, might otherwise be exposed, and when the physician acts in entire good faith, with reasonable grounds for his diagnosis and without malice, he cannot he held liable in damages by his patient, even though he is mistaken in his diagnosis and has reported that his patient was afflicted with a disease which in fact he did not have.</p>

<p>Appeal: Supersedeas Bond. The time within which to file a supersedeas bond under section 8189, Rev. St. 1913, for an appeal to the supreme court in a law action begins to run, not from the entry of the judgment, but from the overruling of the motion for a new trial.</p>

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

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

<p>1. Homestead: Conveyance. Where a wife with knowledge of the material facts, and in the absence of fraud, voluntarily joins her husband in the conveyance of a homestead, she is thereafter estopped from, asserting any right, title or interest therein.</p> <p>2. -: -: Lien. When real estate is conveyed to a wife, or to another in trust for her, in exchange for a deed to a homestead in which the wife joins, it is not error for the district court to render a judgment holding the real estate so conveyed to the wife as security for a judgment lien against such homestead that was fraudulently concealed from the vendees by the vendors at the time of the exchange of the properties.</p> <p>3. Mortgages: Notice. Where a grantor remains in possession of real estate after execution of the deed therefor, one who loans money on such real estate and takes a mortgage lien as security is charged with notice of the right, title or interest of such occupant in the property. Smith v. Myers, 56 Neb. 503.</p>

<p>Evidence examined, and held sufficient to sustain the decree of the district court.</p>

<p>Fraudulent Conveyances: Petition. In a suit to set aside conveyances of real estate as in fraud of a judgment creditor, where the suit is based upon a judgment recovered in a county other than the one where the land is situated, a petition which does not allege that a transcript of the judgment has been filed in the office of the clerk of the district court of the county where the land is situated is subject to demurrer.</p>

<p>1. Appeal: Competency of Expert: Review. The competency of an expert witness is largely a question for the trial court, and unless the testimony received is inadmissible as a matter of law, and prejudicial, the ruling of the trial court will not be disturbed.</p> <p>2. Evidence: Competency of Expert. A witness who has previously been employed for a term of years in the handling and operation of electrically propelled street cars is competent as an expert witness on the question of probable speed of a car which he has observed in operation, and also as to the distance in which such car may be stopped by the proper application of brakes.</p> <p>3. Rulings of the trial court on instructions given, and also on instructions refused, are approved.</p> <p>4. Trial: Submission of Issues. When there is sufficient competent evidence in the record to raise an issuable question of fact, it is proper for the trial court to submit the question to the jury.</p>

<p>Appeal from the district court for Scotts Bluff county': Hanson M. Grimes, 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>1. Contracts: Marriage Contract: Public Policy. A marriage contract, entered into within five years from the time that either the ■ husband or the wife of the contracting party shall have absented himself, is void as against public policy, unless such absent husband or wife was dead or divorced. Rev. St. 1913, sec. 8768.</p> <p>2. -: --: Evidence. Evidence examined, and held not to show that the absent husband was dead or divorced.</p> <p>3. -: -: False Representations. Representations made by the defendant that the husband of the plaintiff is dead, even though false, will not justify her in entering into a marriage contract with him within five years from the time of the beginning of the absence of her husband, unless the evidence shows that he was at the time dead.</p> <p>4. Seduction. To constitute seduction, the female must be seduced; that is, corrupted, deceived, drawn aside from the path of virtue which she was pursuing. Her affections must be gained, her mind and thoughts polluted. Sexual indulgence, induced merely by desire to gratify passion, does not constitute seduction.</p> <p>5. Contracts: Mabbiage Contract: Public Policy. A promise of marriage, in consideration that the promisee should, before marriage, have sexual intercourse with the promisor, is void.</p>

<p>1. Physicians and Surgeons: Itinerant Vendor: Misdemeanor. Section 2726, Rev. St. 1913, quoted in the opinion, construed, and held, that to constitute the offense described the accused, an itinerant vendor, must “publicly profess to cure or treat diseases,” etc.</p> <p>2. Monopolies: Act Limiting Sales. Interpreted as a law to limit the sale of patent and proprietary medicines to pharmacists, such section would be unconstitutional as attempting to create a monopoly, and not necessary for public health or safety.</p> <p>3. Commerce: Sales: Partnership. A nonresident corporation entered into a written contract with a resident of this state for the sale of its products (medicines, extracts, and other articles), to be delivered f. o. b. at a point outside of the state, and to be shipped into this state and here resold at retail by the purchaser, as an itinerant vendor, within certain designated territory. The corporation was to incur no expense for receiving, storing or selling the eoods. and it was not to share in the profits of the business, but did agree to credit purchaser with the purchase price of unsold goods. Held, that this agreement did not constitute a partnership or agency; held, that it was not void as against public policy because violative of a criminal statute relating to itinerant vending of drugs; and held, further, that such transaction constitutes interstate commerce, which cannot be affected by any local statute of this state regulating the disposition of goods so sold, so as to deprive the foreign corporation of the right to sue for balance due for such goods.</p> <p>4. Principal and Surety: Consideration: Extension of Time. Where a contract of guaranty recited the consideration of $1 paid the guarantors, and a part of the consideration. was an extension of time on a balance due by the principal under a former contract, there was sufficient consideration to support the contract of guaranty.</p> <p>5. -: Delivery of Bond. “In the absence of evidence to the contrary, it will be presumed that the delivery of a bond was unconditional.” Gyger v, Courtney, 59 Neb. 555.</p> <p>6. -: Breaoi-i of Obligation: Recovery. A surety, for a sufficient consideration, undertook that 'his principal would pay a certain prior indebtedness at a time specified. The amount of the ' obligee’s recovery from the surety for a breach of the written contract is the amount of the indebtedness which the principal has failed to pay in accordance with its terms. The fact that it was a prior indebtedness, and that the principal was insolvent can make no difference in the amount of recovery, even though the surety signs upon a condition, not complied with, of which condition the obligee had no notice.</p>

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

<p>Injunction: Remedy at Law. “A litigant cannot successfully invoice the extraordinary remedy of injunction, the effect of which would he to obtain possession of real estate, unless the facts and circumstances in the case are such that his ordinary legal remedies are inadequate.” Hollinrake v. Neeland, 94 Neb. 530.</p>

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

<p>Appeal: Trial to Court: Findings. “When, a jury is waived, and a cause tried to the court, its finding of fact will not he disturbed if there is sufficient competent evidence in the record, to sustain the finding.” Dravo-Doyle Go. v. Metropolitan Water District, 102 Neb. 184.</p>

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

<p>Attorney and Client: Attorney’s Lien. Defendant sought on appeal to reverse a judgment for $2,500. While the appeal was pending and undetermined, plaintiff accepted $500 in full settlement, and also - stipulated , for a dismissal of the appeal, all without the knowledge of plaintiff’s counsel, whose lien for an attorney’s fee, based on a written contract with plaintiff, which provided that counsel should “have a lien for their services upon any money or property received in settlement or recovered by judgment,” of which defendant had notice, was on file when the judgment was rendered. Meld, that the- settlement and the agreement to dismiss could not operate to deprive the lienors of their right to the enforcement of their lien upon the entire amount of the judgment.</p>

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

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

<p>1. Jury: Suit to Quiet Title. An action to quiet title based upou plaintiff’s adverse possession for statutory period calls for equitable relief, and neither party is entitled as a matter of right to demand a jury to pass upon the facts.</p> <p>2. Evidence examined, and held sufficient to sustain the findings and decree.</p>

<p>1. Frauds, Statute of: Contract for Sale of Land. A contract of an agent in the name of his principal, for the sale of land, is void unless the authority of the agent to make the sale is in writing signed by the principal.</p> <p>2. Brokers: Contract for Sale of Land. Authority of an agent in writing to sell specificially described land of his principal will not be extended by implication to include other land not described.</p>

<p>1. Master and Servant: Injury to Servant: Assumption op Risk. Where, in a railroad repair shop, the master has prescribed no particular means whereby the workmen shall climb upon locomotives undergoing repair, but the workmen, when required to take off or replace parts of such engines, have always climbed thereon by means of projecting parts of the engine and cab, an experienced workman, accustomed repeatedly each day to climb upon engines by the use of such means, must rely upon his own judgment in selecting handholds, and assumes the risk thereof.</p> <p>2. -: -: Negligence op Fellow Servant. Under the federal employers’ liability act a railroad company is liable to an injured employee for negligence causing such injury, although such negligence is attributable to a fellow servant.</p> <p>3. -: -: Actionable Negligence. Where an experienced workman in a railroad repair shop, in replacing a part of a dismantled locomotive, uses as a handhold in climbing thereon a loose pipe placed or stuck upon a projecting bolt, mistaking it for a stationary part of the engine, and falls and is injured by reason of its giving way, the placing of the loose pipe in such position by a fellow servant of the injured workman does not constitute actionable negligence, where the circumstances are such as to require the injured workman to rely upon his own judgment in the means employed in climbing upon the engine, and where the risk of injury therefrom has been assumed by him.</p> <p>4. -: —--: Duty of Master. A master is not an insurer of his servant’s safety, but is required to use ordinary care in providing him with a safe place to work. When the master provides sufficient light for ordinary purposes, and, in addition to the general lighting of the premises, provides portable individual lights for the use of his servants, when, in their judgment, such lights are needed, the master’s duty in that regard has been fulfilled.</p> <p>5. *-: -: Appliances. Where an experienced workman, under circumstances which require him to rely upon his own judgment in selecting the means of climbing upon an engine, is injured by the giving way of a loose pipe, which, on account of the dimness of the light, he has mistaken for a firm handhold, the sufficiency of the light for his purpose enters into the exercise of his judgment; and, where it appears that more light was available if he had called for it, lack of sufficient light cannot be made the basis of recovery in an action against the master for alleged negligence.</p> <p>6. Negligence: Action: Direction of Verdict. When the evidence, viewed in the light most favorable to the plaintiff, fails to establish actionable negligence, it is the duty of the trial court to direct a verdict for the defendant.</p>

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

<p>1. Appeal: Refusal of Instruction. The refusal to give a requested instruction is not error, where the same matter is covered in substance by an instruction given by the court on its own motion.</p> <p>2. Corporations: Sale of Stock: Warranty. Contract of sale of all of the capital stock of an oil company contained a warranty ’ that the company owned a certain number of steel barrels, without specifying kind, quality, or value. Held, that the warranty was too indefinite to permit a recovery for a shortage in the number of barrels, there being no competent extraneous evidence? to explain it.</p> <p>3. -: —--:-: Breach: Measure of Damages. In a suit for breach of warranties in the sale of all of the issued stock of a corporation, the measure of plaintiff’s recovery is the difference between what such capital stock would have been worth had there been no breach of warranty and what it was actually worth; and the amount of recovery is not affected by a provision in the contract requiring the vendor “forthwith to subscribe and pay for 100 shares of stock of said company,” where it appears that the intention of the parties was that the subscription should be for unissued capital stock.</p> <p>4. Guaranty. A provision in a contract warranting that certain accounts receivable are “good and collectible, and will be paid to • the said company within three months from date hereof, and said first party agrees to pay the said company promptly such a sum as shall equal the deficiency of the payment,” is a guaranty of payment.</p>

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

<p>1. Habeas Corpus: Limitation op Inquiry. “The regularity of the proceedings leading up to the sentence in a criminal case cannot be inquired into on an application for a writ of habeas corpus. If the court had jurisdiction of the defendant and authority to try the charge against him, its action can be assailed only in a direct proceeding.” McOarty v. Hopkins, 61 Neb. 550.</p> <p>2. —-: -. Where, on a charge of murder in the first degree, the accused, after being fully informed of the nature of the plea and of the penalty -which may be imposed, and having the advice of his counsel, pleads guilty to murder in the second degree, which plea is accepted by the state, and he is 'accorded the right to make a statement before sentence, he cannot thereafter- successfully maintain habeas corpus on the ground that the sentence is void because the record does not recite that witnesses were examined in open court before sentence.</p>

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

<p>Opinion on motion for rehearing of case reported in 103 Neb. 663.</p>

<p>Husband and Wife: Alienation: Proof. To maintain an action for alienation of a wife's affections, the proof must show that defendant’s acts and conduct were not only intended to effect an alienation, but that alienation was thereby actually accomplished.</p>

<p>1. Intoxicating Liquors: Unlawful Transportation: Forfeitures. Section 2, ch. 109,. Laws 1919, construed, and heM, that the act contemplates the forfeiture of the vehicle of owners and lienors, who have voluntarily parted with possession, that are used in the unlawful transportation of intoxicating liquors..</p> <p>2. -: -: -. An automobile that is used for the unlaw-ful transportation of intoxicating liquors, after section 2, ch. 109, Laws 1919, became operative, is subject to be forfeited and sold under the penalties therein provided, even though the buyer gave to a seller a valid mortgage lien on such car before the act became operative.</p> <p>3. Constitutional Law: Prohibitory Act: Forfeitures. A mortgagee of an automobile that is seized and sold under section 2, ch. .109, Laws 1919, on the ground that it was used for the unlawful transportation of intoxicating liquors, cannot complain that he has been deprived of property without due process of law.</p> <p>4. Intoxicating Liquors: Forfeitures: Imputation of Guilt. When, under section 2, ch. 109, Laws 1919, a complaint has been filed against an owner of an automobile and his vehicle for unlawfully transporting intoxicating liquor, and both the person and the vehicle so charged are held for trial, the conviction of the owner imputes guilt to the vehicle and subjects it to forfeiture and sale.</p> <p>®. -;: ■* — ;-: Incident to Conviction. The forfeiture of an automobile under section 2, ch. 109, Laws 1919, ib no part of the sentence imposed by the justice of the peace, but is an incident to the conviction of the owner or person in charge of the car.</p> <p>6. -: -: Police Power. The forfeiture and sale of an automobile under section 2, eh. 109, Laws 1919, when used for the unlawful transportation of intoxicating liquors, is a valid exercise of the police power.</p>

<p>Bastardy: Evidence. “In a bastardy proceeding, only a preponderance of the evidence is necessary to a conviction, and a verdict rendered on conflicting evidence will be sustained unless it is clearly wrong.” Parrish v. Hodges, 98 Neb. 403.</p>

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

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

<p>Opinion on motion for rehearing of case reported in 103 Neb. 614.</p>

<p>Error to the district court for Johnson county: John B. Raper, Judge.</p>

<p>1. Evidence examined, and held to support the verdict.</p> <p>2. Trial: Quotient Verdict. The mere fact that jurors upon retirement ascertained the amount to which each juror believed the plaintiff was entitled, and afterwards agreed upon the average of these amounts as the amount of recovery, does not avoid the verdict, where it also appears that there was no previous agreement that the sum thus arrived at should be controlling, and no juror was bound to accept this amount unless lie believed it to be a just and fair estimate of the damages sustained.</p>

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

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

<p>1. Counties: Taxation: Constitutional Law. Section 1, S. F. No. 1, passed by the special session (Thirty-Ninth) of the legislature, which provides that the county shall “have power to levy a tax not exceeding, together with all other tax levies, fifteen (15) mills on the dollar upon the actual or full market valuation of the property in the county,” to create a fund for the payment of certain bonds and interest thereon, is not unconstitutional as violative of section 5, art. IX of the Constitution, limiting taxes to $1.50 per $100 valuation.</p> <p>2. Constitutional Law: Taxation: Classification. “The power of classification rests with the legislature, and this power cannot be interfered with by the courts, unless it is clearly apparent that the legislature has by an artificial and baseless classification attempted to avoid and violate the provisions of the Constitution prohibiting local and special legislation.” Allan v. Kennard, 81 Neb. 289.</p>

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

<p>1. Work and Labor: Services op Child. When a child renders services for a parent after attaining majority, and while the family relation continues, the presumption is that such services were rendered gratuitously.</p> <p>2. -: -. To overcome the presumption that services rendered by a child for a parent, after attaining majority and during the continuance of the family relation, were not rendered gratuitously, it must clearly and satisfactorily appear that the parent promised or agreed to pay therefor.</p>

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

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

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

<p>1. Street Railways: Use of Streets. The general public has the right to the use of a public street and every part thereof, regardless of whether there is a street car track on it or not; but the public has not at all times the same right to the use of that part of the street upon which the tracks are laid as has tho street car.</p> <p>2. -: -. When the time comes that the use of that part of the street upon which trabks are laid is required by the street car, it is the duty of the public to turn asido and allow the street car unobstructed passage. The public should not uso tho streets in such a manner as to unnecessarily hinder or interfere with tho free movement of cars operated thereon.</p> <p>3. -: -: Care Required. The rights of tho public and the street cars in the use of the street arc equal and reciprocal. Each in the exercise of his rights must exercise ordinary care for his own safety and the safety of others.</p> <p>4. -Negligence: Instruction. When tho cause of action is based upon the claim that the motorneer in charge of the car negligently ran into the plaintiff, an instruction that if tho motorneer in charge of the car knew, or “should, in the exercise of reasonable care and. caution, have known, that plaintiff was in a position of danger,” and which instruction in other respects states tho law correctly, is not erroneous.</p> <p>5. -: -. Whether it is negligence for a pedestrian to exercise his right to use the street by walking upon a street car track, and, if so, the degree of such negligence, must be determined by the'peculiar circumstances surrounding each case.</p> <p>6. Municipal Corporations: Us® of Streets: Cajre Required. The .user oí the street, whether vehicle, pedestrian, or street car, must exercise the ordinary care of prudent men under the circumstances, and the care exercised must be commensurate with the danger.</p>

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

<p>1. Waters: “Overflow Water.” Water accumulating in flood seasons within the drainage area of a natural stream and seeking an outlet therein, which, uniting with the water in the main channel, flows in one body in the natural course of such stream over adjacent lands, and, when the flood subsides, finds an outlet in the ordinary channel of such stream, is -to be considered “overflow water” thereof, and not “surface water.”</p> <p>2. -: -: Obstruction. The accustomed course of overflow waters in the flood channels of a natural stream cannot lawfully be obstructed or interfered with by one riparian owner to the injury of another.</p> <p>3. -: Obstruction: Prescriptive Basement, Where one owning land traversed by the flood channels of a natural stream, in order to protect his land from overflow, constructs and maintains thereon an embankment, the effect of which is to hold the water in times of flood and cause it to stand upon the land of an upper proprietor, the right by prescription to maintain such embankment is in the nature of an easement to flow back-water upon said land, which can be acquired only by the open, continuous, uninterrupted and adverse use of the land for more than ten years for the purpose of flowage.</p> <p>4. -: -: -. If the land of an upper proprietor is not subjected to constant flowage as the result of an embankment across the flood channels of a natural stream maintained upon the land of a lower proprietor, but such embankment causes the water to back up and stand upon such upper land only for brief periods during flood 'seasons and at long and irregular intervals, though such conditions have been recurrent for more than ten years, it is not such evidence of the continuous and uninterrupted use of such land for the purpose of flowage as will establish an easement by prescription therein.</p>

<p>Municipal Corporations: Action for Injuries: Petition: Sufficiency. A petition in an action against a city of the first class to recover for injuries sustained by reason of a defect in a street or sidewalk, which does not allege compliance with section 4583, Rev. St. 1913, requiring written notice to the city of the existence of the defect at least five days before the accident, fails to state a cause of action, where the petition shows that the defect was the result of natural wear or decay, and was not caused by any positive negligent act on the part of the city, either in the original construction of the street or sidewalk or in afterwards creating a defective or dangerous condition therein.</p>

<p>1. Bailment: Contract: Terms. The parties to a bailment may diminish the liability of the bailee by special contract, and the bailee may impose whatever terms he chooses, if notice thereof be given to the bailor, and he understands and assents to them, provided the contract i§ not' in violation of law or of public policy, and does not undertake to exempt the bailee from the consequences of his own fraud or negligence.</p> <p>2. - — : -: -. Where a building operated by a bailee for hire for storage purposes is without equipment or facilities for heati-ng or for regulating the temperature, such bailee may, as a condition to the acceptance for storage of property likely to be damaged by heat or cold, by special contract relieve himself from liability for damage resulting from changes in the temperature which the building is not equipped to guard against or prevent.</p> <p>"3. -: -: -. If a bailee, operating for storage purposes a building not equipped with heating facilities, notifies the bailor that he will not accept the property and be responsible for freezing; and that the risk of freezing must be assumed by the bailor, and the bailor understands and assents to such condition, the care which the bailee is required to exercise to protect the property is to be measured by the means and facilities at his disposal when the contract of storage was made, and the bailee is under no duty to provide other means of heating the building.</p> <p>4. Appeal: Instruction : Harmless Error. Where the verdict returned by, the jury was the only one justified by the evidence, inaceuracy in an instruction as to the burden of proof is not ground for reversal.</p>

<p>1. Master and Servant: Assault: Scope of Employment: Question for Jury. When a servant, while in the discharge of the duties for which he was employed, commits an unprovoked assault upon another; the question whether he was acting within the scope of his employment or outside of it to effect some purpose of his own, is generally a question of fact for a jury, and its verdict is conclusive, provided there be sufficient testimony to support it.</p> <p>2. -: -: Liability of Master. The master is responsible for the act of his servant committed in the scope of the employment, even where he departs from his instructions, acts wrongfully, wilfully, or illegally.</p>

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

<p>Street Railways: Injury to Passenger: Duty of Conductor. Where a street car is slowing speed for the purpose of stopping and discharging a passenger, in response to a signal, it is not the duty of the conductor to warn the passenger, who has proceeded to the rear platform with the apparent purpose of being in readiness to alight, that the car has not stopped, or of danger in attempting to alight, unless there is something in the appearance or conduct of the passenger which should reasonably give the conductor notice that the passenger is to some degree helpless, or that he apparently, under some misapprehension or from carelessness, has an intention of alighting while the car is still moving.</p>

<p>Witnesses: Privileged Communications. Statements made to an attorney, with a view to his employment in the litigation in which he is called to testify, are privileged, even though no fee has been paid and the attorney subsequently refuses a retainer.</p>

<p>Appeal: Affirmance. When an issue of fact is submitted to a jury on instructions that fairly state the issue, and the verdict is supported by sufficient competent evidence, it will not be disturbed.</p>

<p>1. Vendor and Purchaser: Notice of Lease. One who purchases land, with knowledge that others are in possession of a portion of it under an agreement of the nature of a mining lease, takes it subject to the rights of the lessees.</p> <p>2. Mines and Minerals: Contract: Construction. The agreement set forth in the opinion, considered in connection with other evidence in the record, held to be more than a mere license to extract potash, and to confer upon the lessees the exclusive right to occupy the leased premises and remove potash.</p> <p>3. -: Lease: Abandonment. Evidence examined, and held, not to show abandonment by the lessees at the time defendants entered - and removed mineral-bearing water from the leased premises.</p> <p>4. Partnership: Wrongful Acts: Dissolution: Parties. Where a partner has, in violation of his duty to the partnership, wrongfully disposed of property in -which the partnership has an interest, or wrongfully surrenders partnership rights to third parties with notice of the same, a court of equity may, in a suit by the other partners against the wrongdoers, compel restitution, and, if requested and justified, dissolve the partnership and compel an accounting. In such a suit all parties who have knowingly received such property are proper parties defendant.</p> <p>5. Trover: Measure of Damages In this state' the rule is, that damages shall only be compensatory, and not punitive; and, where property wrongfully taken has been changed in its nature and can not be identified, the measure of damages is its value immediately after it has been taken and reduced to the possession of the wrongful taker.</p>

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

<p>1. Waters: Water-Works: Extensions: Assessments: Mandatory Statute. The provision of section 5267, Rev.. St. 1913, as amended, chapter 53, Laws 1919, which requires the assessment of special benefits to pay the cost of water main extensions in water main districts “upon all real estate in said water main district,” is mandatory.</p> <p>2. -: Mandamus: Estoppel. Under the facts stated in the opinion, held that relator is not estopped to maintain this proceeding.</p>

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

<p>Error to tbe district court for Furnas 'county: Ernest B. Perrt, Judge.</p>

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

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

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

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

<p>1. Libel: Matter in Pleading. Whatever a litigant may properly plead as a cause of action or ground of defense, when relevant or material to the issue, he may plead with or without malice, and in such case the intent with which he pleaded the same cannot be inquired into or become an issue in an action for libel.</p> <p>2. -: -. Where the relevancy and pertinency of matter alleged in pleading is to be inquired into, all doubt should be resolved in favor of relevancy and pertinency.</p> <p>3. -: -. If there is no reason or object in furtherance of justice and fair dealing to use scandalous and libelous matter, then, when so used, it is not privileged.</p> <p>4. -: -. In an action for libel based on an allegation in a pleading in another action, where it appears that the defamatory matter, was wholly gratuitous, irrelevant, and immaterial, that it was well known by defendant to be false and untrue, that it was published without cause or justification and with express malice, it is not privileged,</p> <p>5. -:-. Allegations in a pleading are privileged and cannot serve as a basis for a libel suit, unless it clearly appears that the same were not relevant or pertinent.</p>

<p>1. Criminal Law: Change of Venue: Discretion. A motion for a change of venue in a criminal prosecution is addressed 'to the sound discretion of the trial court, and, unless there has been an abuse thereof, its ruling thereon will not be disturbed. Golds-berry v. State, 6S Neb. 312, followed.</p> <p>2. Judges: Disqualification. A complaint charging defendant with forgery was filed in Dodge county March 10, 1910', but no further action was taken thereon until June, 1919, when defendant was apprehended. The trial judge was county attorney of Dodge county in 1913 and part of 1914, when he became district judge. As county attorney he, ipso facto, represented the state in criminal prosecutions in said county, but during his term of office no action whatever was taken in this case. Held, under the provisions of chapter 22, Laws 1915, relating to disqualifications of judges, the trial judge was not disqualified to hear this case.</p> <p>3. Instructions examined, and found to contain no reversible error, and those requested were properly refused.</p> <p>4. Forgery: Sufficiency of Evidence. Evidence examined, and held sufficient to sustain the verdict of the jury.</p>

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

<p>1. False Imprisonment: Arrest: Wilful Delay. A warrant does not protect a sheriff from liability for wrongful and unauthorized acts committed by him in connection with its execution; and where, after making an arrest, he delays for an unreasonable length of time in bringing his prisoner before the magistrate, and such delay is through his indifference to duty, or through wilfulness, he will be liable in damages as for false imprisonment.</p> <p>2. -: Evidence: Reputation. In an action for damages for false imprisonment resulting from misconduct of such officer in the execution of a valid warrant, the reputation of the prisoner is not ordinarily in issue, since the arrest need not be justified, and it is proper to exclude testimony on behalf of defendant that plaintiff’s reputation as a peaceable and law-abiding citizen is bad, nor can such testimony be introduced for the purpose of mitigation of .damages, where damage to reputation is not specially pleaded by the plaintiff nor proved.</p> <p>3. New Trial: Misconduct of Counsel. Where plaintiff’s counsel is guilty of misconduct in making statements in argument of facts outside the record, and no objection is made by opposing counsel at the time nor until the argument is concluded, then, unless the misconduct of counsel is flagrant, a new trial will not be granted, where, upon the objections being made, the trial court admonishes the jury that the statements should be disregarded.</p> <p>4. False Imprisonment: Evidence. It is improper to admit, over objection, testimony to show that plaintiff had a wife and the number of his children.</p> <p>5. Damages. Evidence examined, and verdict of $3,000 held excessive.</p>

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

Original proceeding in mandamus to compel respondent, secretary of state, to issue a certificate of nomination of candidates for office, omitting the name of John H. Morehead as candidate for governor.

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

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

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

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

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

<p>1. Executors and Administrators: Claims: Plea of Payment: Bobden of Proof. Where an administrator pleads that a claim against the estate was paid in full during the life of decedent, the burden is on him to prove that defense.</p> <p>2. Witnesses: Privileged Communications. Where an administrator, in making the defense that decedent had paid a claim, introduces in evidence a receipt, and adduces proof of the circumstances undei which the receipt was given, and of the decedent’s oral statement that the claim had been paid in full, testimony by claimant on the same subjects does not violate the statutory rule that no person having a direct legal interest in the result of any civil action, when the adverse party is the representative of a deceased person, shall he permitted to testify to any transaction between the deceased person and the witness. Rev. St. 1913, sec. 7894.</p>

<p>Homestead. Homestead interests of the husband become vested in him upon the death of the wife, and are not changed by subsequent legislation.</p>

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

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

<p>Wills: Probate: Attorney’s Fees. In an unsuccessful litigation to probate a purported will, the intestate estate of the decedent is not ordinarily chargeable with compensation for the services of attorneys for the defeated devisees, and this rule may apply to devisees who offered the contested instrument for probate after the person named by the decedent as executor declined to do so.</p>

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

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

<p>1. Husband and Wife: Agency: Presumption. Whether or not the husband is the agent of the wife in dealing with her separate property is a question of fact to be determined as other like questions, and will not be presumed from the marital relations alone.</p> <p>2. Vendor and Purchaser: Rescission: False Representations. “A false representation by the vendor of land situated in another state, as to the character, location, and value of the property, relied on by the vendee, who had no other knowledge, is ground in equity for rescinding the contract.” Boss. v. Sumner, 57 Neb. 588.</p> <p>3. -: -: Laches. An action to rescind on the ground of fraud must be brought within a reasonable time after the discovery of the fraud.</p> <p>4. Evidence examined, and held to support the findings and decree of the trial court.</p>

<p>Appeal: Revivor. Under section 8186, Rev. St. 1913, the filing of the transcript for the review of a law case confers jurisdiction on this court, and, where a judgment is rendered against two defendants as joint tort-feasors, and both file notice of appeal and supersedeas bond in the district court, and one of them dies before the filing of the transcript here, held,, that this court acquires such jurisdiction, through the filing, of the transcript and the resulting removal of the case here, as will enable it to allow the representative of the deceased party to revive the action in this court, though no steps to revive have been taken in the lower court, and though the transcript is filed by the living party to the suit, without any authority from and when the filing is not participated in by such representative.</p>

<p>1. Negligence: Cabe Required of Store Proprietor. The proprietor of a store is not an insurer against accidents to customers, hut is bound to exercise reasonable care and prudence to keep the stairways therein, which the public is tacitly invited to use, safe for that purpose.</p> <p>2.--: Presumption. The fact that a customer falls upon a stairway does not raise any presumption of negligence .on the part of the proprietor of the store, and the doctrine of res ipsa loquitur does not apply.</p> <p>3. -: Burden of Proof. Where recovery is sought for personal injury sustained by a customer in falling upon a stairway on the ground that the proprietor of the store was negligent in permitting the stairway to be defective in some particular causing the accident, the burden is upon the plaintiff to prove that the defective condition existed and was known to the proprietor before the accident, or that it had existed for so long a time theretofore as to charge the proprietor with notice and to have afforded him a reasonable opportunity to repair the defect.</p> <p>4. -: Duty of Store Proprietor. It is the duty of the proprietor of a store to maintain such a degree of light in those parts of the premises where the public is invited to go as not unreasonably to endanger a customer who exercises his faculties with due regard for his own safety.</p> <p>5. -: Action for Personal Injuries: Proof. In an action for personal injuries alleged to have been sustained in consequence of the negligence of the proprietor of a store in failing properly to light the premises, the plaintiff cannot recover in the absence of evidence tending to show that lack of sufficient light bore a direct relation to the accident, as the proximate and efficient cause thereof.</p>

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

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

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

<p>Release as Bar. An instrument purporting to be “a full acknowledgment and acquittance of every claim of every kind from the beginning of time” cannot be urged in this court as an absolute bar to a cause of action, where the instrument was offered by defendant ‘■‘for the purpose of showing an admission,” and plaintiff was permitted to testify, without objection, that the matters in suit were not considered by the parties nor intended to be covered by the writing.</p>

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

<p>1. Judgment: Personal Judgment against Nonresident. A court cannot acquire jurisdiction to render a personal judgment upon a money demand against a nonresident of the state without personal service within the state, or appearance in the action.</p> <p>2. Fraudulent Conveyances: Suit to Set Aside. An action to set aside a deed and subject a tract of land to the payment of a money demand on the ground of fraud in the transfer, cannot be maintained until the demand has been reduced to judgment and a lien has been acquired upon the property.</p>

<p>1. Evidence: Death: Presumption. When there-is a question as to whether a violent death has been caused by accident or by suicide, there is no presumption in favor of suicide, and, as between accident and suicide, the law presumes accident until suicide is established by the evidence.</p> <p>2. Master and Servant: Workmen’s Compensation Act: “Reckless Indifference t.o Safety.” “Reckless indifference to safety,” as used in section 3693, Rev. St. 1913 (workmen’s compensation act), means more than want of ordinary care. It implies a rash and careless spirit, not necessarily amounting to wantonness, but approximating it in degree, a willingness to take a chance.</p>

<p>Receiving Stolen. Goods: Evidence. Evidence that recently after an automobile had been stolen in the state defendant was in possession of it outside of the state, and other incriminating circum- ■ stances connecting him with receiving it in the state, knowing it to have been stolen, may be sufficient to sustain a conviction for that felony.</p>

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

<p>Assault: Arrest Without a Warrant. 'When an arrest without a warrant is sought to be justified, it must appear that a crime has been committed, and there must be reasonable ground to believe the person arrested is guilty of the offense.</p>

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

<p>Opinion on motion for rehearing of case reported in 103 Neb. 685.</p>

<p>X. Master and Servant: Workmen’s Compensation Act: Delinquent . Payments: Penalty. Under a statute, providing that a penalty be added for all delinquent payments under the workmen’s compensation act (Her. St. 1913, sec. 3666, as amended), held that, where there is a reasonable controversy between the employer and the employee as to liability for certain instalments of compensation, the payments of such compensation do not become due, in the sense that they may become delinquent, until the obligation of tbs company is definitely ascertained or settled.</p> <p>R. -: -: Attorney’s Fees. Where, a statute allows the employee to recover attorney’s fees, in case an order for compensaKun is made in his favor, and in event the employer refuses to abide by the order, but appeals, and on appeal fails to reduce the award, held that, the power to allow attorney’s fees being statutory, the court has no authority to allow them where the employe© himself appeals, though by sucb appeal the award is increased; nor to allow fees where it is shown that the employer, upon the rendition of the award, instead of appealing, offers to pay it.</p>

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

<p>1. Appeal: Directed Verdict. In determining whether a peremptory instruction was justified, the party against whom the verdict is directed is entitled to have every controverted question of fact resolved in his favor, and to have the benefit of every inference that reasonably can be deduced from the facts in evidence.</p> <p>2. Brokers: Action for Commissions: Question for Jury. In an action by a broker for commissions for a sale of real estate, the issue whether the plaintiff’s efforts were the efficient procuring cause of the sale is ordinarily for the jury.</p> <p>3. -: -: Directed Verdict. Where, in a broker’s action for commissions, there was evidence tending to show that, after initiating the negotiations with the purchaser and bringing the parties together, the plaintiff, with the defendant’s knowledge and without any revocation of his' authority, continued his efforts to effect a sale until the land was sold, the fact that the sale was concluded through the medium of another broker will not warrant the trial court in holding, as a matter of law, that the plaintiff was not the efficient cause of the sale, and in withdrawing the case from the jury on that ground.</p>

<p>1. Deeds: Construction. The rule in Shelley’s case was brought to this state as a part of the common law, and does not conflict with, and is not abrogated by, our statute (Rev. St. 1913, sec. 6195) providing that the court shall carry into effect the expressed intent of the parties.</p> <p>2. -: —;-. Where the grantor in a deed conveys real property to a person for life, with a limitation over to the “heirs” or “heirs of the body” of such person, the words “heirs” or “heirs of the body” have a technical meaning,’ and will be so interpreted as words of limitation, unless the context or other expression in the deed shows that a remainder was intended to go to certain described individuals, and that the words “heirs” or “heirs of the body” refer to them in aid of other description and were not intended to be used in their technical sense.</p> <p>3. -: -. Where the limitation over is to “the heirs begotten of the body” of the person taking the life estate, these words, which at common law would create an estate tail, create here a conditional fee only, so that the tenant in tail, after issue born, is able to bar both the inheritance and the reversion by a deed.</p> <p>4. -: -. Where property is conveyed by deed to a person for life and “remainder in fee simple to the heirs begotten of the body” of such person, it is evident that the words “heirs begotten of the body” cannot have been used in their technical sense so as to create a conditional fee, since an intention is expressed that those persons, taking the remainder, shall take in “fee simple” and, if they take in fee simple, they could not, at the same time, be limited to a conditional fee. The words “heirs begotten of the body” held, in the light of the context, to have been used as words of purchase and to have referred to the immediate children of the first taker.</p>

<p>1. Appeal: Verdict: Review. The rule that a verdict will not he disturbed when there is evidence tending to support it does, not ■ apply where the verdict is opposed to the undisputed physical facts of the ease, or is in flat contradiction of recognized physical laws, and where the testimony presented, taken as a whole, is capable of no reasonable inference of such a state of facts as would allow the plaintiff to recover.</p> <p>2. Carriers: Injuries to Passenger: Negligence. Where a passenger alights from a moving street car at a point where it does not customarily discharge passengers, and, without stopping to look or listen, immediately passes behind it so as to suddenly emerge and come in contact with, and be injured by, a car passing in the opposite direction, he is guilty of negligence, and he has no right to assume that, at such place, the motorman on the opposite track will so have his car under control as to be able to make an immediate stop in anticipation of the discharge of passengers at that place.</p> <p>3. Negligence: Comparative Negligence: Question for Court. In an action for damages caused by the alleged negligence of the defendant, where it is shown beyond reasonable dispute that the plaintiff’s negligence is more than slight as compared with that of the defendant, the case should not be submitted to the jury, and it is the duty of the court to enter judgment of dismissal.</p> <p>4. Evidence: Negative Testimony. When there is positive and substantial affirmative testimony by a number of witnesses that a gong was sounded; the fact that there is testimony by one or more witnesses that they did not hear the gong and that it did not ring does not authorize that question to be submitted to the jury, where it is shown that the attention of such witnesses was diverted at the time the gong is said to have rung, and when their position, mental condition and surroundings were not such as would raise a presumption that they would have heard it if it had sounded. Before their negative testimony is entitled to weight, it must appear that they had such knowledge as would justify them in speaking affirmatively in denial of the' fact.</p>

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

<p>1. Divorce: Extreme Cruelty. “A continuing course of conduct on the part of either spouse, which so grievously wounds the mental feelings, or which so utterly destroys the peace of mind as to seriously impair the bodily health and endanger the life or reason of the other, or which nullifies the legitimate ends and objects of matrimony, constitutes extreme cruelty within the meaning of the statute.” Hartshorn y. Hartshorn, ante, p. 561.</p> <p>2. -: Alimony. In entering a decree for alimony, the court may take into account all of the property owned by the parties at the time of entering the decree, whether accumulated by their joint efforts or acquired by inheritance, and make such award as is proper under all the circumstances disclosed by the record.</p>

<p>Master and Servant: Workmen’s Compensation: Review. On appeal from tiie district court to the supreme court in a workmen’s compensation case, findings of fact supported by sufficient evidence and findings of fact on substantially conflicting evidence will not be reversed unless clearly wrong.</p>

<p>Error to the district court for Hamilton county: George F. Corcoran, Judge.</p>

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

<p>1. Accord and Satisfaction: Pleading and Proof. “The defense of accord and satisfaction is not sustained, without allegations and proof that there was a substantial difference between the parties as to the amount due, and that the accord and satisfaction was in settlement thereof.” Wilder v. Millard, 93 Neb. 595.</p> <p>2. Dormant Judgment: Lien. When a judgment is dormant, the judgment debtor’s interest in real estate cannot be subjected to its payment.</p>

<p>1. Insurance: Fraud: Proof. When it is sought to defeat recovery on a policy of life insurance on the ground of concealment of material facts by the insured, it is incumbent on the insurer to prove that the representations were made knowingly and with a fraudulent intent to mislead and deceive, and that they were material to the risk, and were relied on by the insurer. JEtna, Life Ins. Go. v. ReMaender, 68 Neb. 284.</p> <p>2. -: -: Question for Jury. When the question of concealment of material facts is sought to he interposed to avoid liability on a life insurance policy, such question of concealment is one of fact for submission to the jury.</p>

<p>1. Sales: Contract: Nonperformance: Act of God. Wkere defendant is prevented from performing his contract'to deliver specific hay by storms and unusual rains, constituting an act of God, he is not liable for nonperformance.</p> <p>2. —•-: Instructions. The instructions of the trial court were proper, and we find no prejudicial error in them.</p> <p>3. Evidence examined, and held sufficient to sustain the verdict of the jury.</p>

<p>Evidence: Opinion Evidence. Where, as in this case, the action is for personal service or the reasonable value of one’s time, involving matters arising out of an implied contract, and where the evidence as to the reasonable value of such service rests solely upon the expression of the opinion of witnesses, it is generally hel'd that such evidence is not conclusive upon that issue, and should be submitted to the jury for its determination.</p>

<p>Appeal from the district court for Wheeler county: Bayard H. Paine, Judge.'</p>

<p>1. Criminal Law. Insanity op Felon: Teial by Commission. Section. . 9098, Rev. St. 1913, providing that, if a person convicted of a capital offense is thought to have become insane, he should be entitled to a jury trial to determine that question, has been repealed by implication by section 9212/ Rev. St. 1913, which provides for a commission in the place of a jury.</p> <p>2. -: -: Suspension op Sentence. To entitle a person, convicted of a capital offense, to a suspension of sentence under section 9212, Rev. St. 1913, it must appear that he has become insane, not in some slight or peculiar or classical degree, but that his state of mind and mental condition are such that he does not understand, and is incapable of understanding, the nature of the proceeding against him and of his impending fate and executipn, and is unable, in a rational manner, to offer a defense or make objection to execution.</p> <p>3. -: -: Sufficiency of Petition. Where a proceeding is brought to determine the sanity of a person convicted of a capital offense, and no attempt is made to set out in the petition substantive facts or other allegations, showing such a degree of insanity as is contemplated by the statute, the petition is demurrable, and, where no other showing is seasonably made or offered that such insanity exists, the proceeding may be dismissed.</p> <p>4. -: Frivolous Appeal. Where an appeal appears to be based upon a proceeding having no apparent substantive foundation, and operates only to create delay, without protecting substantive rights, it may be dismissed as frivolous.</p>

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

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

<p>1. Municipal Corporations: Disconnecting Territory: Parties. Section 5090, Rev. St. 1913, gives to “a majority of the legal voters” residing in territory within and adjacent to the corporate limits of any city or village the right to maintain an action to disconnect such territory therefrom. Held, that a person who is the only legal voter residing within such territory comes within the designation and can maintain the action.</p> <p>Z. -:-:--. Liability to the assessment and payment of taxes for municipal purposes is a sufficient interest to entitle one to maintain the action.</p> <p>S. Appeal: Stipulation cot Facts. A stipulation of facts, not incorporated in a bill of exceptions, cannot be considered in this court.</p>

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

<p>Rehearing of ease reported in 103 Neb. 828.</p>

<p>Trial: Direction oe Verdict. “Where the plaintiff’s evidence in an action at law tends to establish every fact which he is required to prove to entitle him to a verdict, and reasonable men might differ, upon a consideration of all of the evidence, as to whether all of the necessary facts were established, the trial court should refuse to direct a verdict for the defendant.” Straight v. Coleman. 90 Neb. 92.</p>

<p>Error to the district court for Howard county: Bayard H. Paine, Judge.</p>

<p>1. Master and Servant: Wobkmen’s Compensation Act: Dependent. Evidence examined and held to establish that an aged mother in poor circumstances, residing in Italy, whose children lived in this country, and to whom the deceased had' been sending periodical sums of money from his wages for her support, was entitled to compensation as a dependent under the workmen’s compensation law.</p> <p>2. -: -: Estoppel. Where an insurer issues a policy to insure employees of a Nebraska corporation, which policy recites that it is issued under the Nebraska workingmen’s compensation act, and the place of business or occupation is “south side of Carter Lake adjacent to Omaha, Neb., consisting of 55 acres more or less,” and it accepts and retains the premium money, it is estopped to deny that it insured against accidents to employees of the corporation while at work upon the premises described upon the plea that such premises were in the state of Iowa, and it did not insure against Occidents not occurring within the state of Nebraska.</p>

<p>1. Evidence. Ordinarily a question involving the rate of speed of a street car is not a question for expert testimony.</p> <p>2. Street Railways: Proximate Cause of Injury: Question for Jury. When the evidence is in direct conflict in respect to the proximate cause of an injury arising from collision with a street car, the question is one of fact for the jury.</p> <p>3. -: Use of Streets: Negligence and Contributory Negligence: Question fob Jury. “Street railway companies have no such proprietary interest in that portion of the streets upon which their tracks are laid as limits the right of the general public also to use the same territory as a part of the public highway. Whether an injury resulting from such joint use is attributable solely to the negligence of the railway company, or is wholly or in part imputable to contributory negligence of the person by whom injury has been sustained, is a question of fact to be determined by the . jury.” Omaha street R. Go. v. Duvall, 40 Neb., 29.</p> <p>4. Negligence: Question for Jury. When different minds may reasonably reach different conclusions from a given state of facts as to whether negligence or contributory negligence has been established, the question of negligence is for the jury.</p>

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

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

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

<p>1. Judgment: Comity. “A judgment entered in pursuance of a war-; rant of attorney, in a state in which such judgments are authorized, has the same force,-when sued on here, as a judgment on adversary proceedings.” Snyder é Dull v. Gritahfield, 44 Neb. 66.</p> <p>2. -: -. A judgment was rendered upon warrant of attorney, without service of process, in a sister state, in which that procedure is not expressly authorized by statute, but in which the courts have uniformly held it to be justified by the common law. In an action upon such judgment, the courts of this state are bound by the interpretation placed upon the common law by the courts of the state in which the judgment was rendered, with regard to the validity of such procedure to sustain the judgment.</p> <p>3. -: Power op Attorney. A power of attorney to confess judgment signed by two parties, which reads, “I authorize any attorney at law * * * to appear for me,” will, notwithstanding the words “we” and “us” were not used, be construed to be the act of either or both of the signatory parties.</p> <p>4. -: -. Where a warrant of attorney contained in a promissory note authorized any attorney at law to confess judgment “in favor of the payee above named, or assigns,” the word “assign” will be construed to mean any person into whose hands the instrument may come by assignment or indorsement, including one who becomes a holder of the note by indorsement in blank.</p>

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

<p>1. Master and Servant: Personal Injuries: Negligence. In an action to recover damages for personal injuries resulting from the sudden spinning of a sprocket wheel while plaintiff was at work with his arms between the spokes, the evidence discussed in the opinion field sufficient to sustain a finding that the machinery was negligently set in motion by the automatic shifting of a belt from a loose pulley to a fast pulley while the engine was in motion.</p> <p>2. -: -: -: Appliances. The failure of an employer to furnish an appliance required by statute for the safety of employees may be evidence of negligence.</p> <p>3. -: Appliances: Duty op Employer. It is the duty of the employer to exercise reasonable care for the safety of a workman in a hazardous position, and not to expose him to injury by use of dangerous appliances or unsafe places to work, when the exercise of due skill and care will make the appliances and places reasonably safe.</p> <p>4. -: Negligence: Question fob Juey. Where the evidence is sufficient to sustain a finding that an employer did not furnish the employee a reasonably safe place to work, the issue is one for the jury, if properly raised by the pleadings.</p> <p>5. Damages. A judgment for $18,900 for personal injuries held not excessive.</p> <p>6. Appeal: Remittitur. Where the trial court, in an action to recover damages for personal injuries, orders plaintiff to file a remittitur as a condition of overruling a motion for a new trial, the order will not be reversed on appeal, if there is a substantial basis in the 'evidence for a finding that the verdict is excessive to the extent of the amount required to be remitted.</p>

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

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

<p>1. Statutes: Title. The title of an act, “to provide for county farm bureaus, for the improvement of agricultural methods and production and for cooperation with state and federal agencies,” is broad enough to include provisions relating to the duties of a county farm bureau, to the employment and payment of a county agent, to the appropriation and disbursement of public funds for the payment of expenses of such a bureau, and to the duties of the county board in relation to these matters.</p> <p>2. Agriculture: Appropriation for Farm Bureau. Legislation making provision for farm bureaus as governmental agencies of an educational nature to disseminate among farmers for practical purposes scientific knowledge for the improvement of agriculture • is for a “public purpose” witbin the taxing power of the state.</p> <p>3. —--: -: Constitutional Law. Legislation directing a county board, on petition of a specific number of residents of the county, to appropriate from the general fund raised by taxation and to disburse money to pay the expenses of a farm bureau is not void as taking property without due process of law or without representation.</p> <p>4. Statutes: Modification of Existing Statutes. An independent legislative act covering the entire subject of legislation to which, it relates may incidentally modify or change existing statutes without referring to them.</p> <p>5. Agriculture: Farm Bureaus: Constitutional Law. County farm bureaus are governmental agencies entrusted with. the duty of disseminating among farmers scientific knowledge of an educational nature for the improvement of agriculture, and the statute recognizing them as such is not void as delegating power to an unauthorized body or as creating new county officials.</p>

<p>Original proceeding in mandamus to compel respondent to file amended articles of incorporation of relator.</p>

<p>1. Executors and Administrators: Sale op Real Estate: Estoppel. Plaintiffs contracted with the heirs of a deceased person for a quitclaim deed of conveyance to real estate of which the ancestor died seised, it being subject, however, to sale for the payment of the debts of the ancestor. It was provided in the contract that, in addition to the quitclaim deed, the purchasers should he furnished an administrator’s deed to he procured by proper procedure in the courts. The administrator, by and with' the consent of the heirs, had previously executed a lease of the premises to a third party. In pursuance of the contract, the quitclaim deed was executed and delivered and the proper proceedings were had for the sale of the premises by the administrator for the payment of the debts. The plaintiffs became the purchasers at the administrator’s sale, the sale was confirmed and the administrator’s deed issued to the purchasers. Held, plaintiffs are not, as against the lessee of the heirs and the administrator, estopped to assert their right of possession of the premises from' the date of the confirmation of sale and delivery of the deed.</p> <p>2. Syllabus Withdrawn. The syllabus of our former opinion, ante, p. 313, is withdrawn.</p>