Volume 69 — Nebraska Reports

<p>Appeal from the district court for Washington county: Jacob Fawcett, District-Judge.</p>

<p>Foreclosure: Cancelation oe Debt. A foreclosure sale of real property, whether the purchaser is the mortgagee or a stranger to the action, is not a cancelation or extinguishment of the mortgage debt, so long as the mortgagor, by resisting confirmation or prosecuting appellate proceedings, prevents the mortgagee from obtaining actual payment either in land or money.</p>

<p>. Error to the district court for Ouster county: Homer M. Sullivan, District Judge.</p>

<p>1. Directing Verdict. The trial court is not required to submit a case to the jury unless the evidence supporting it is of such a character that it would warrant the jury in basing a verdict upon it.</p> <p>2. -: Conflicting Evidence. Conflicting evidence is for the jury, and when there is a conflict of evidence upon a material issue it is error to direct a verdict for either party. ...</p> <p>3. -: -. Evidence may be said to be conflicting when there is substantial evidence upon either side of the controversy. . A fact may be so conclusively established that slight evidence suspicious and uncertain will not be allowed to oerthrow it.</p> <p>4. Duty of Railway- in Constructing Crossing. It is the duty of a railway company in constructing its crossings over a highway to take all reasonable precautions to lessen the danger to the public in crossing its road.</p> <p>'5. negligence: Question ttor Jury. In this case it was for the jury to determine the rate of speed at which defendant’s train'.Was running at the time of the accident, and whether, under the conditions obtaining at the crossing, the company was negligent 'in . running its train at such rate of speed. . - '</p> <p>6. Instructions. Conflicting instructions are erroneous, .and one which misstates the law upon a vital issue is not cured by another which states the law correctly. . .</p>

<p>Error to the district court for Gass county: Paul Jessen, District Judge.</p>

<p>Error to the district court for Gage county: Charles B. Letton, District Judge.</p>

<p>Error to the district court for Douglas county: Guy R. C. Read, District Judge.</p>

<p>1. Interest on Judgment, Where a plaintiff has obtained a verdict on which judgment has been entered, and on appeal the supreme court holds that the verdict is excessive and orders a new trial unless plaintiff remit the amount deemed excessive, and plaintiff does enter a remittitur for such excess, he is entitled to interest on the amount of the judgment allowed to stand from the date of the original entry.</p> <p>2.-. Where payment is made upon a judgment in excess of the amount of the interest then due thereon, the entire unpaid remainder due on the judgment, including interest, bears interest as provided by law from the date of such payment.</p>

<p>Appeal and Error: Final Order. A judgment of the district court on appeal from an inferior tribunal, which is a complete adjudication so far as the district court is concerned, so as to leave nothing further to be done in that court, is a final order within the purview of section 582 of the code, although the cause is remanded for further proceedings below.</p>

<p>1. Constitutional Law: Construction or Statute. The validity of the so-called deficiency judgment law of 1897 can he upheld only hy construing it, in connection with section 2, chapter 88 of the Compiled Statutes, in such manner as to bring it into harmony with the supreme law of the land as interpreted by the supreme court of the United States. So construed, it does not impair or affect any remedy upon any contract entered into before its enactment.</p> <p>2. Deficiency Judgment. The act of 1897, above mentioned, does not take away or impair the right of the holder of a mortgage executed before its enactment, to apply for and obtain, in an action for the foreclosure of the instrument, a personal judgment for a residue of the mortgage debt remaining after the application of the proceeds of the foreclosure sale.</p> <p>3. Impairing the Obligation of a Contract. An act of a state legislature which is designed, and if enforced would be effectual, to deprive the obligees of existing contracts of an important and efficient remedy for the enforcement of the same, is an act impairing the obligations of such contracts and is in contravention of section 10, article 1 of the constitution of the United States.</p>

<p>1. Constitutional Law: Title of Act. An immaterial change in the title of a legislative hill, whenever made, is without legal effect.</p> <p>2. -: -. The constitution regards substance rather than form; it requires that the subject of legislation shall be clearly-expressed in the title of a bill, but beyond this it does not go; the form of expression is at all times a matter of legislative choice.</p> <p>3. —--: -. The title of a bill for an amendatory act is not materially changed by omitting a clause providing for a repeal, in general terms, of all repugnant or inconsistent statutes and substituting therefor a clause providing specifically for the repeal of the amended law.</p> <p>4. -: -. An intention to repeal all laws inconsistent with a proposed measure of legislation is necessarily implied and need not be expressed in the title of a legislative bill. •</p> <p>5. -: -. Any provision in a legislative bill which is not clearly expressed in the title can not he enacted into law.</p> <p>6. -: -. The title of chapter 70, laws 1897, was too restrictive to cover a provision enlarging the authority of school boards with respect to the levy of taxes for general revenue.</p> <p>7. Statute in Conflict with Constitution. A statute in conflict with the constitution yields only to the extent of the repugnancy.</p> <p>8. Valid and Invalid Portions of Statute. If the valid and invalid parts of a statute are severable and it is apparent that the latter was not an inducement to the adoption of the former, the law will be upheld and enforced to the extent that it is in harmony with the constitution.</p> <p>9. Act Valid in Part. Chapter 70, laws 1897, is valid to the extent that the subject of legislation is expressed in the title.</p> <p>10. Act Valid. Chapter -69, laws 1901, was constitutionally adopted and is valid.</p>

<p>Appeal from the district court for Cass county: Paul Jessen, District Judge.</p>

<p>Error to the district court for Antelope county; James P. Boyd, District Judge.</p>

<p>Error to the district court for Hall county: John R. Thompson, District Judge.</p>

<p>Error to the district court for Hamilton county: Samuel H. Sornborger, District Judge.</p>

<p>Error to the district court for Nuckolls county: George W. Stubbs, District Judge.</p>

<p>Error to the district court for Lancaster county: Lincoln Frost, District Judge.</p>

<p>1. Attorney’s Lien: Fraud. Where a judgment to which an attorney’s lien has attached has been compromised between plaintiff and defendant in fraud of the attorney’s rights, such settlement and compromise may be set aside at the suit of the attorney defrauded.</p> <p>2. -: Intervention. The proper method of procedure in such case is for the attorney to file an intervening petition and have the amount and extent of his lien judicially determined before any other steps are taken for its enforcement.</p> <p>3. -: Execution. ' Held, not error for the trial court to overrule a motion for an execution to enforce the collection of an attorney’s lien before the nature and extent of such lien had been judicially determined. .</p>

<p>Error to the district court for Douglas county: Jacob Fawcett, District Judge.</p>

<p>Error to the district court for Oass county: Paul Jessen, District Judge.</p>

<p>1. Legal Settlement of Insane Person. The legal setlement of an insane person, within the meaning of section 26, chapter 40, Compiled Statutes, is the county which would he primarily liable for the support of such person, if a pauper.</p> <p>2. Change of Residence. If a person, neither - insane nor a pauper, abandons his residence in one county and removes with his family to another, and settles in the latter with the intention of mailing it his home, and thereafter becomes insane, the latter county can not recover of the former for expenses incurred on behalf of such insane person, unless it appears that he became a public charge, as an insane person, less than thirty days after abandoning his residence in the former county.</p>

<p>1. Vendor and Vendee: Servitudes. Where the owner of two adjoining tracts of land sells one of them, the purchaser takes the tract sold, with all the benefits and burdens which appear, at the time of the sale, to belong to it, as between it and the tract which the vendor retains.</p> <p>2. -: —-. Where the owner of two adjoining tracts of land constructs a dam of a permanent character across a stream on one tract, which causes the water to overflow a portion of the other tract; upon a sale of such other tract to one having knowledge of the existence of such dam and its character, in the absence of evidence of a contrary intent, there arises an implied contract that the mutual benefits and servitudes, as regards such dam, shall remain in statu quo.</p> <p>3. Evidence. Evidence examined, and held, not sufficient to show an intention to the contrary.</p>

<p>Error to the district court for Gage county: Charles B. Letton, District Judge.</p>

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

<p>1. Chattel Mortgage: Possession by Mortgagee. The discretion conferred upo'n the mortgagee by a clause in a chattel mortgage, authorizing him to take possession of the mortgaged property whenever he may deem himself unsafe or insecure, is not to be exercised arbitrarily; such belief must rest on reasonable grounds.</p> <p>2. -: -. The facts that would warrant such belief must be such as did not exist, or of which the mortgagee was ignorant, at the time of taking the mortgage.</p> <p>3. Levy: Abandonment. When an officer effects a valid levy on personal property consisting of ponderous articles, the fact that he leaves such property on the premises of the debtor, in charge of a custodian, who is in the employ of the debtor, and who permits the debtor to use such property, does not constitute an abandonment of the levy as to the debtor and those having notice.</p> <p>4. Mortgage by Partnership. Where a chattel mortgage is signed by one member of the firm, without authority and without the knowledge or consent of his partner or the mortgagee, and delivered to a third -party to be delivered to the mortgagee, and the mortgagee upon learning of such mortgage takes time to decide whether to accept and does not accept it until after a dissolution of the firm and until after he had notice of such dissolution, such mortgage is not binding on the partner not joining therein.</p> <p>5. Replevin: Instruction. In an action of replevin, where one of the parties claims the property by virtue of a levy thereon by him as an officer, it is not error to direct the jury, in case they find for him, to find the fair, reasonable and market value of such property, without at the same time directing the attention of the jury to the manner in which said property must be sold by the officer, and his want of discretion, possesed by other owners of goods, to accept or reject such offers as are not considered a fair equivalent for them.</p> <p>6. -: Abandonment. If the plaintiff in replevin to whom the property has been delivered may, under any circumstances, show that, subsequent to the delivery, the property has been- taken from him under an execution against the defendant in the action, he can not do so without at the same time abandoning any claim of his own to the property and consenting that it may be applied in satisfaction of the judgment on which the execution against the defendant issued.</p>

<p>1. Savings Bank: Powers: Acquiring Stock. A savings bank organized under the laws of this state may acquire title to shares of stock of another corporation, where such stock is taken in compromise or discharge of the indebtedness of an insolvent debtor, and where no circumstances casting suspicion on the transaction are shown, but it fairly appears that the directors of the bank acted in good faith and in the belief that the acceptance of the stock was for the best interest of the bank.</p> <p>2.-: Liability. After acquiring the stock the savings bank becomes subject to any liability thereon the same as other stockholders.</p>

<p>Mandamus: Mandate to District Coubt. The district court should proceed in a case as directed by the mandate of this court. In an action to foreclose a mortgage, the mandate directed the district court to enter a decree in favor of the plaintiff for the amount due on the mortgage. On the case being remanded, certain parties claiming to have acquired an interest in the mortgaged premises pending the appeal were allowed' to intervene in the case, and the court refused to enter a- decree in favor of the plaintiff, as directed by the mandate, until the rights of the interveners had been heard and determined. Held, That the plaintiff was entitled to a mandamus, commanding the district court to proceed in the case as required by the mandate of this court.</p>

Harrington, District Judge. Exceptions to the rulings of the trial court, on the admission of evidence, under section 483 of the criminal code.

<p>Error to the district court for Douglas county: Irving F. Baxter, District Judge.</p>

<p>Error to the district court for Lancaster county: Albert J. Cornish, District Judge.</p>

<p>1. Cross-Petition. A defendant in an action is not restricted to the counter-claim provided for in sections 100 and 101 of the code, , but, in a proper case, may seek affirmative relief, either against the plaintiff or against codefe'ndants, by cross-petition.</p> <p>2. -. In such case, the cross-petition gives rise to a cross-suit, auxiliary to and dependent upon the original suit, but for many purposes distinct.</p> <p>3. Cross-Suit: Basis oe Right. The basis of the right to bring such a cross-suit is to be found in sections 1 and 429 of the code, and in the consideration that in cases where the code is silent, remedies furnished by the old common law or equity practice, not inconsistent with its provisions, may be resorted to in order to prevent failure of justice.</p> <p>4. -: When Maintainable, A cross-petition is maintainable either to aid in the defense of the original suit, where affirmative equitable relief is required to make such defense effective, or to obtain a complete adjudication of the controversies between the original complainant and the cross-complainant over the subject matter of the original suit. '</p> <p>5. Cross-Bill: Chancery Practice. Under the chancery practice, where the purpose of a cross-bill is defensive merely, it need not be based on equitable grounds nor seek equitable relief; but when its purpose is more than defensive, and it seeks relief affirmatively, its scope must be limited to matters which are cognizable in a court of equity, if not to matters cognizable upon equitable grounds.</p> <p>6. ■-: -. It is also required under the chancery practice, that the cross-suit be germane to the original suit. The new issues which a defendant may introduce by cross-bill are limited to such as it is necessary for the court to have before it in deciding the questions raised in the original suit in order to do complete justice to all parties with respect to the cause of action on which the plaintiff bases his claim for relief.</p> <p>7. Chancery Practice Enlarged by Code. It seems that the rules ot chancery practice are so far enlarged by the code that, although a cross-petition is more than merely defensive and seeks affirmative relief beyond the purposes of defense, such relief need not be equitable, nor need the cross-petition be based on equitable grounds.</p> <p>8. Cross-Petition: Scope. But the matters set up in the cross-petition must be germane to the original suit. The cross-petition is not maintainable for purposes of affirmative relief as a cross-suit beyond the requirements of a complete adjudication upon the subject mater of the original suit.</p> <p>9. Cross-Petition Not Maintainable. Pending proceedings to obtain possession of defendant’s building, then occupied by plaintiffs, plaintiffs sued to enjoin defendants from procuring or executing a writ of restitution until they could obtain review upon error of a judgment in forcible detention, and to enjoin interference with their possession or prosecution of further proceedings until the pending cause was determined. After judgment on the petition in error adverse to plaintiffs, but before hearing of the injunction suit, defendants filed a cross-petition therein, claiming damages for abuse of process in the taking of unfounded and vexatious appeals and proceedings in error in state and federal courts, for attorneys’ fees an,d expenses therein, and in securing vacation of a restraining order in said injunction suit, for injuries to tbe building while occupied by the plaintiffs, and for loss of the use of an adjacent building rented to be used in connection with the one in controversy. Held, that such cross-petition was not maintainable.</p> <p>10. Supersedeas Bond: Effect. The giving of a supersedeas bond for the purpose of an appeal, under section 677 of the code, will not prevent the district court from ruling upon a motion for a new trial, theretofore filed, in order to enable the party giving such bond to prosecute error, should he so elect.</p>

<p>1. Constitutional Law. Chapter 50, laws of 1899, entitled “An act creating a state registry of brands and marks, a state brand and mark committee, providing for brands and marks upon live stock, and repealing chapter fifty-one (51) of the Compiled Statutes of 1897,” is in conflict with the constitution and wholly void.</p> <p>2. -: Brand and Mark Committee. It was not the intention of the legislature by section 2 of chapter 50, aforesaid, to create a new office-to be filled by the secretary of state; but the provision in said section, authorizing the governor to appoint three persons to act as members of a brand and mark committee, was an abortive attempt to add to the number of executive state offices created by the constitution.</p> <p>3. Legislative Intent. The legislature intended that the secretary of state should retain for his services, as a member of the brand and mark committee, twenty per cent, of all the fees received for recording brands and marks.</p> <p>4. Money Received Under Color of Office. Money received by the .secretary of state for recording brands and marks, under the provisions of the act of 1899, was not received by virtue of his office, hut under color of his office.</p> <p>5. Official Bond: Sureties. The sureties on official bonds do not undertake to answer for acts done by their principal under color o£ his office, hut only for acts done by virtue of his office.</p> <p>6. Fees: Estoppel. The state has no legal title to any part of the fees received by the secretary of state for recording brands and marks under the provisions of the act of 1899; but that officer having, in collecting such fees, assumed to act in an official capacity, the law does not permit him, when called to account by -the state, to deny that he so acted.</p> <p>7. Demurrer: Conclusions oe Law. A general demurrer admits the truth of all material facts well pleaded, but does not admit conclusions of law.</p> <p>8. Official Misconduct Not Established. Official misconduct is not established by showing that trust funds have been used by a public officer for the very purpose the legislature and the owners of the funds intended they should be used.</p>

<p>1. Criminal Law: Aider, Abetter or Procurer. One by whose incitement or instigation a felony is committed, when he is neither actually nor constructively present, is an aider, abetter or procurer within the meaning of section 1 of the criminal code.</p> <p>2.-: -. Section 1 of the criminal code which was adopted in '1873, is applicable to all acts made felonies by subsequent legislation.</p> <p>3. Information: Demurrer. An information which, after charging larceny in the usual form, alleges in substance that the defendant did feloniously and purposely aid, abet and procure the thief to commit the crime, is not demurrable on the ground that it states a mere legal conclusion.</p> <p>4. Jury. A person informed against for a felony, after the regular panel has been discharged, may be lawfully tried by a jury summoned under the provisions of section 664 of the code.</p> <p>5. Instructions. An instruction, which informs the jury that the material facts charged in the information must be established by the evidence beyond a reasonable doubt, is unobjectionable, if supplemented by other instructions clearly indicating what facts are material.</p> <p>6. -: Circumstantial Evidence. The court in effect charged, (1) that circumstantial evidence, to warrant a conviction, must be of such a character as to exclude every reasonable hypothesis excepting only the one implying defendant’s guilt; (2) that every incriminating circumstance which may be considered as evidence of guilt must be proved to a moral certainty or beyond a reasonable doubt. Held, To be a correct statement of the law and to include every material feature of the instructions upon that point requested and refused.</p> <p>7. Evidence. The word “evidence,” when used in an instruction, is understood to include all the means employed at the trial to ascertain the truth respecting the matters in dispute.</p> <p>8. Larceny: Evidence. On the trial of an information charging larceny of cattle, it is not error to receive in evidence the hides of the animals obtained from a packing house in another state.</p> <p>9. -: - — —. A photograph, used for the purpose of identifying a person implicated in the theft of cattle, is admissible in evidence without showing when, where or by whom it was taken.</p> <p>10. Declarations. On the trial of a person charged with instigating another to steal cattle, the declarations of the thief while engaged in the perpetration of the crime are admissible in evidence as part of the res gestae.</p> <p>11. -: Conspiracy. When a conspiracy is once shown to exist by . the requisite quantum, of proof, the acts and declarations of each of the conspirators, in furtherance of the common design, are the acts and declarations of all.</p> <p>12. Conspiracy. A conspiracy to steal and sell cattle does not end with the theft, but continues at least until the sale has been made.</p> <p>13. Instructions. Instructions tendered and refused examined and found to contain no correct and pertinent proposition of law, not embraced in the general charge.</p> <p>14. Instruction Not Based on Evidence. There being no evidence tending to prove that defendant was present when the alleged crime was committed, it was not error to refuse to instruct on the assumption that he was present.</p> <p>15. Defendant’s Failure to Testify. The prohibition contained in section 473 of the criminal code against referring to, or commenting upon, the failure of an accused person to testify, was intended as a restraint upon the prosecuting attorney and, to some extent, upon the court as well.</p> <p>16. Evidence. Evidence examined, and found sufficient to support the verdict.</p>

<p>Error to the district court for Douglas county: William W. Keysor, District Judge.</p>

<p>Error to the district court for Nemaha county: John 1 s. Stull, District Judge.</p>

<p>1. Criminal Law: Complaint: Venue. In a criminal prosecution the office of the venue in a- complaint is to name the place where the alleged offense was committed, and to show that the court before whom the information is laid, has jurisdiction to proceed. It is not an error fatal to the jurisdiction of the court to recite these matters in the English language, and no particular form of words is indispensably requisite for that purpose.</p> <p>2. -: Disqualification of Police Judge: Appointment of.Justice of the Peace. When, in a criminal prosecution before a police judge in a city of the first class, governed by chapter 18 ot the laws of 1901, it is shown that the judge is disqualified to act by reason of interest, bias or prejudice, it is not erroneous for the mayor to appoint a justice of the peace of the city to act in place of the judge, as provided by section 117 of that chapter.</p> <p>3. Playing Baseball on Sunday. Playing at the game of baseball in this state on Sunday is forbidden by the statute. State v. O’Rourlc, 35 Neb. 614, reaffirmed.</p>

<p>1. Foreclosure: Receiver: Homestead. A mortgagee of a farm, worth from $6,000 to $8,000, which is resided upon by the mortgagor and embraces his homestead exemptions, is entitled, on an appeal from an order confirming a sale which did not realize the full amdunt of the mortgage, and where the taxes are in arrears and are accumulating, to a receivership to take charge of that portion of the premises not embraced in the homestead exemptions, the property being readily divisible and no objection being made to the admeasurement of the homestead made by the trial court.</p> <p>2. Decree Rendered. Former judgment in this case vacated and the order of the district court appointing a receiver affirmed.</p>

<p>Appeal from the district court for Lancaster county: Lincoln Frost, District Judge.</p>

<p>Error to the district court for Sherman county: Homer M. Sullivan, District Judge.</p>

<p>1. Villages: Occupation Tax: Telegraph Companies. A village may impose a reasonable occupation tax upon telegraph companies, doing business within the village, which have complied with the telegraph law adopted by congress in 1866.</p> <p>2. Occupation Tax: Interstate Business. Such tax should be so restricted as to not include any interstate business or business of the government of the United States transacted by such company.</p> <p>3. Constitutional Law: Village Ordinance. Where such ordinance imposes a tax on the business of such company transacted for the government of the United States, it is in violation of the provisions of the constitution of the United States, and, therefore, void.</p> <p>4. Case Distinguished. Western Union Telegraph Go. v. Oity of Fremont, 39 Neb. 692, examined, approved and distinguished.</p>

<p>1. Tort: Action by Guardian or Next Friend. Infants have a right to sue by guardian or next friend, to recover damages for injuries done to the person by the tortious acts of another.</p> <p>2. -: Evidence. A preponderance of the evidence is sufficient to prove an issue in civil actions for assault and battery.</p> <p>3. Parent and Child: Correction. A parent, or one standing in the relation of parent, is not liable either civilly or criminally for moderately and reasonably correcting a child, but it is otherwise if the correction is immoderate and unreasonable.</p> <p>4.-: -: Question eoe Jury. It is a question of fact to be determined by the jury whether or not the punishment inflicted , was, under all the circumstances and surroundings, reasonable or excessive.</p> <p>5. Instruction: Word “Given” Omitted. Held, That the omission to write the word “given” on an instruction, signed by the judge, read by him to the jury and delivered with the other instructions for consideration in the jury box, does not constitute reversible error.</p> <p>6. Instructions. Instructions examined, and held, not prejudicial.</p> <p>7. Rulings on Evidencie. Action of the trial court in the admission and exclusion of'evidence, examined, and held, not prejudicial..</p> <p>8. Evidence of Ability of Parent to Support Child. Where it is averred that the parent had necessary means to provide food and clothing for a child and failed to do so, such allegation not being admitted, it is proper to admit proof of the financial ability of the parent to so provide, when such evidence is restricted by instruction to this purpose alone.</p> <p>9. Evidence. Evidence examined, and held sufficient to sustain the verdict.</p>

<p>Error to the district court for Sarpy county: Guy B. C. Bead, District Judge.</p>

<p>1. Injunction: Cemetery. A court of equity will enjoin tibe use of a tract of land for cemetery purposes so situated that the burial of the dead there will injure life or health, either by corrupting the surrounding atmosphere, or the water of wells or springs.</p> <p>2. Cemetery: Nuisance. A burial ground near dwellings is not necessarily a nuisance, and the court will only interfere and enjoin its use on clear and convincing proof of probable injury.</p> <p>3. Evidence. Evidence examined, and held, insufficient to sustain an injunction.</p>

<p>1. Negotiable Instrument: Oral Agreement: Evidence. Where a note is negotiable in form and by its terms payable on demand, evidence of a contemporaneous oral agreement, destroying' its negotiability, and making the time of payment contingent on the" happening of an uncertain event, is inadmissible.</p> <p>2. Directing Verdict: Evidence. Where evidence of such agreement is received over the objection of the party against, whom it is offered, the court may disregard it in determining whether a verdict should be directed against the party offering it.</p> <p>3. Appeal: Issues. On appeal to the district court, the parties are restricted to substantially the same issues as those upon which the cause was submitted below.</p>

<p>Error to the district court for Saunders county: Benjamin F. Good, District Judge.</p>

<p>1. Corporation: Transfer of Assets: Action at Law bt Creditor. ' Where a debtor corporation transfers all of its assets to a new one, organized for the purpose of taking such assets and therewith continuing the business in which the former corporation wag engaged, and no provision is made for payment of its debts and it ceases to do business, one bolding a judgment against tbe old corporation may bring an action at law against tbe new one, and a finding in bis favor by tbe trial court will not be disturbed, when the evidence shows that tbe circumstances attending tbe ' creation of tbe new corporation, and its succession to the business and property of tbe old, are of such a character as to warrant tbe finding that tbe new coi'poration is a mere continuation of tbe old one.</p> <p>2. Evidence. Evidence examined, and held ample to support tbe finding and judgment of tbe trial court under tbe above rule.</p>

<p>1. Attachment: Successive Writs: Sale ojt Attached Property Under Execution in Fiest Action: (1) Action by Subsequent Attaching Creditors: (2) Statute oe Limitations. Writs of attachment, issued in separate suits of several creditors against a common debtor, were successively levied on the same property. Motions to dissolve these attachments were overruled, and afterward all the actions were prosecuted to final judgment. From the order sustaining the first attachment and a final judgment rendered in the same proceeding, the defendant in attachment prosecuted error to this court where the order was reversed and the final judgment affirmed, hut no proceeding in error was prosecuted from the order sustaining the other attachments. Pending a review in this court, the property attached, belonging to the defendant, was sold to the first attaching creditor under an order of sale issued on the judgment of such party, rendered in the attachment suit, and the proceeds applied on that judgment, the other judgments remaining wholly unsatisfied. Held: (1) That an action for restitution would not lie against the first in favor of the subsequent attaching creditors, hut that an action for money had and received could be maintained to which the defendant might interpose a counter-claim or set-off; (2) that the statute of limitations did not begin to run until the' first attachment was dissolved.</p> <p>2. Attaching Creditors and Sheriff, Joint Tort-F~asors. The seizure of the goods of a third party by the sheriff under an order of atta-hm.ont is tortious, and attaching creditors who join with the sheri if in resisting an action brought by such third party to recover tlie goods become trespassers ab initio, and jointly and severally liable for a money judgment rendered therein in favor of such third party.</p> <p>3. Contribution. When such judgment is satisfied by one of the parties, contribution will be enforced, where it appears that the parties acted in good faith and without any intention of committing a trespass.</p> <p>4. -. The" basis of contribution in such eases is the ratio the claims of the several attaching creditors bear to each other.</p> <p>5. Defect of Parties: Estoppel. A plaintiff will not be heard to complain of a defect of parties in a counter-claim, where the record discloses that the omitted party is equally necessary to a determination of his own cause of action.</p>

<p>Error to the district court for Saline county: George W. Stubbs, District Judge.</p>

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

<p>1. County Court: Jubisdsction. Where a suit in equity is to be regarded as part of the proceedings for settlement of the estate of a deceased person, it must be brought in the county court, which has exclusive original jurisdiction of such matters.</p> <p>2. Suit by Administrator with Will Annexed for Construction of Will. Hence a suit by an administrator with the will annexed for construction of the will in order to enable him to administer the estate properly, is not maintainable in the first instance in the district court.</p> <p>3. Distinction Between Suit by Administrator and by Trustee Under a Will. It seems that a distinction is to be drawn between such a case and a suit by trustees under a -will, after settlement of tbe estate, to obtain a construction of tbe provisions of tbe will relating to tbeir trust, and that in tbe latter ease suit must be brought in tbe district cour.t.</p> <p>4. Constitutional Provision. Section 16, article 6, of tbe constitution does not preclude a county court from construing a will, in a proper case, and determining tbe effect and meaning of a devise of lands so far as is necessary to give proper directions to an executor or administrator with tbe will annexed.</p> <p>5. Construction of Will by Probate Court. Tbe construction of tbe will in such a ease, is for tbe information and benefit of such executor or administrator only, in order to advise him what course to pursue. It adjudicates nothing beyond his rights and liabilities in the execution of bis office; controversies between adverse claimants under tbe devise or between tbe executor or administrator and persons claiming adversely to tbe estate, will not be affected thereby.</p>

<p>Error to the district court for Dodge county: Conrad Hollenbeck, District Judge.</p>

<p>1. Homestead in Life Estate. A wife may claim a homestead in a life estate held by her husband.</p> <p>2. Right of Tenant for Life Who Has Paid Mortgage. Where a tenant for life pays off a mortgage or other charge upon the entire estate, he is presumed to do so for his own benefit, and may preserve and enforce the lien for reimbursement over and above the proportion of the debt which he is bound to contribute.</p> <p>3. Reimbursement and Contribution: Assignment Ceeates New Lien. But his right to preserve and enforce the lien exists for the purpose of reimbursement or contribution only; so far as his estate or interest is concerned, in the absence of intervening interests or other special circumstances making such result inequitable, the lien is extinguished, and a subsequent assignment of the whole charge is, in substance, the creation of a new incumbrance thereon.</p> <p>4. Mortgage Kept Alive by Assignment. The mortgage or other charge upon the entire estate may be kept alive as to the individual estate or interest of the person paying it off, by taking an assignment.</p> <p>5. Where Preservation of Lien Operates Fraudulently.' If in such case, however, the preservation of the lien as to such estate or interest would operate fraudulently «or inequitably, it will not be permitted, and the lien will be deemed extinguished so far as it covered and to the proportion chargeable upon the individual estate or interest of the person paying it off.</p> <p>6. Mortgage: Homestead. A husband, holding a life estate in property of a former wife, married again and continued to occupy it as a homestead. The property was subject to a mortgage, which he • paid, taking an assignment. Afterwards he reassigned the mortgage to the plaintiff, as security for a new debt. His wife did not join in the assignment. Held, That this amounted to an incumbrance of the homestead, and that the mortgage was not enforceable, as against the life estate.</p> <p>7. Tenant for Life: Adverse Title. The rule that a tenant for life who buys in an outstanding incumbrance is regarded as holding it for the benefit of the reversioner as well as for his own benefit, '' means only that he will not be permitted to acquire an adverse title by or through such purchase or otherwise cüt out the reversioner’s right of contribution without affording the latter an opportunity to redeem.</p> <p>8. Assignment of Mortgage by Life Tenant: Foreclosure. Hence it will not operate to prevent assignment of the incumbrance to a third person and a foreclosure suit by the latter to require the reversioner to redeem to the extent of his proportion and to subject the property to satisfaction of the incumbrance in default thereof.</p>

<p>Error to the district court for Loup county: John R. Thompson, District Judge.</p>

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

Original application for a writ of mandamus to compel the state board of public lands and buildings to perform a contract for the hiring of convict labor.

<p>1. Rape. Sections 11 aw1 12 of tlie criminal code describe three classes of crimes, each of which is totally distinct from the other two. The second clause of section 12 makes it unlawful for a man to have sexual intercourse with a female child, with her consent, whether she is or is not his daughter or sister.</p> <p>2. Leading Questions. Tlie trial court lias a large, though not an imlimited, discretion in granting or refusing permission to ask a witness leading questions.</p> <p>. 3. Harmless Error. Error in sustaining an objection to a question is without prejudice, if the same question is afterwards asked and answered.</p> <p>4. Instruction: Eerob. The failure of the court to instruct the jury, that, a defendant charged with rape can not he convicted without evidence corroborating the prosecutrix, is not error, unless it appears that such an instruction was' requested.</p> <p>5. -: Penalty. Where the jury are not required to fix the punishment, the trial court is under no obligation to tell them what penalty is annexed by law to the crime charged in the information.</p> <p>6.-: Presumption. An instruction, in which the jury are told that the presumption of innocence continues until the material allegations of the information are established by the evidence “to the exclusion of all reasonable doubt,” is entirely accurate.</p> <p>7. -: Reasonable Doubt. . The instruction on the subject of reasonable doubt, considered by this court in several cases, and found in Good and Corcoran, Instructions to Juries, sec. 146, at page 261, is, perhaps, less intelligible than the phrase defined, hut yet plain enough to be within the comprehension of ordinary men.</p>

<p>Error to tlie district court for Sheridan county: James J. Harrington, District Judge.</p>

<p>1. Statutory Rape: Consent. In tlie prosecution for an assault upon the person of a girl under the statutory age of consent, with intent to commit a rape, it is not necessary to allege or prove that the acts were done against her will. Whether she consented or. resisted is immaterial. Davis v. State, 31 Neb. 247, reexamined and followed.</p> <p>2. Assignments of Error in Admission of Evidence. Assignments of error relative to the admission of certain evidence over objections examined and found untenable.</p>

<p>1. Arrest: Attempt to Escape. An attempt to escape by one under arrest accused of crime is an inculpatory circumstance properly to be considered by a jury and to be given sucb weight as it seems fairly entitled to, with the other evidence introduced at the trial, in determining .the question of the guilt or innocence of the accused.</p> <p>2. Instructions. When no proper instruction has been requested, it is not prejudicial error for a trial court not to specially instruct the jury as to the law applicable to evidence tending to prove an attempt to escape by a prisoner accused of a. crime.</p> <p>3. Oral Directions as to Verdict. Oral directions to the jury set out in the opinion relative to the reception of a verdict examined, and held not to be violative of the rule requiring all instructions to be in writing; nor to be evidence of coercion of the jury.</p>

<p>Allowance to Clerk of County Court. Under the authority of chapter 34 of the laws of 1897, the county board may, in the exercise of good faith, make a supplemental allowance of compensation for the services of the clerk of the county court after the services have been rendered.</p>

<p>Contract: Mistake: Reformation. Where parties Rave made a contract under a mutual mistake as to the existence of a fact which is a material inducement to it, such mistake may give a right to rescission, but is no ground for reforming the contract, and making it as the parties might presumably have done had they been aware of the truth.</p>

<p>1. Peremptory Instruction: Counter-Claim: Evidence. It is not error to refuse a peremptory instruction for a verdict for plaintiff, where defendant has introduced evidence tending to support a counterclaim set up in the answer.</p> <p>2. Verdict: Evidence. Evidence sufficient to take a question to the ; iry, will ordinarily support a verdict hpon it.</p> <p>3. Agent’s Authority: Instruction. Not error to submit to jury the question of the extent of a selling agent’s authority to accept payment in something besides money, where there is evidence of statements by the principal’s general manager tending to show such authority.</p> <p>4. Instruction: Evidence. It is error to submit to a jury the question as to whether goods were purchased from one H., as principal, or from him as agent of plaintiff, where the evidence points only to the latter conclusion.</p>

<p>Appeal from the district court for Webster county: Ed L. Adams, District Judge.</p>

<p>1. County Superintendent: Salary. Section 2, subdivision 7, chapter 79, Compiled Statutes, provides the minimum and not the maximum salary to be paid county superintendents in the various classes therein enumerated.</p> <p>2.-: Discretion. In counties of less than 2,000 school population, the number of days which a county superintendent may be employed in the discharge of his office is left to the sound discretion of the superintendent himself.</p> <p>3. Board of Commissioners: Ministerial Act. When a board of county commissioners audit and adjust the claim of an officer whose salary is prescribed by statute, it acts ministerially and not judicially. Gallaher v. Lincoln, 63 Neb. 339, followed and approved.</p>

<p>Appeal from the district court for Custer county:' Homer M. Sullivan, District Judge.</p>

<p>Error to the district court for Sherman county: Homer M. Sullivan, District J udgio.</p>

<p>1. Trial: Error. A judgment will not be reversed on account of a technical error in the admission of evidence, when the party complaining is not prejudiced thereby.</p> <p>2. -:-- — ■. Where an objection to a question is overruled — the answer not being given — and tbe guestion is afterwards put in another form and is answered without objection, error cannot be predicated thereon.</p> <p>3. Parent 3\tay Recover for Loss of Services of a Child. A parent may recover for the loss of expected services of children, not only during minority but afterwards, on evidence justifying a reasonable expectation of pecuniary benefit therefrom.</p> <p>i. Damages: Amount. Held, That a verdict for only $3 0, for the pecuniary loss sustained by reason of the death of a minor child three years and four months old, is inadequate in amount.</p>

<p>Appeal from the district court for Adams county: Ed L. Adams, District Judge.</p>

<p>1. Special Appearance. Ordinarily; if a defendant intends to rely on a want of jurisdiction of the court over his person, he must appear, if at all, for the sole purpose of objecting to the jurisdiction; if he appears for any other purpose, his appearance is general.</p> <p>2. Flea to Jurisdiction. When the lack of jurisdiction does not appear on the face of the record, hut must be established by evidence aliunde, he may plead to the jurisdiction, or unite a plea to the jurisdiction with other defenses to the action, without waiving his right to insist on a lack of jurisdiction. HurTburt v. Palmer, 39 Neb. 158, 173. ___.</p> <p>3. -: Cross-Petition. The preceding rule is limited to cases where the plea to the jurisdiction stands alone, or is united with such defenses as go to defeat a recovery hy the plaintiff, and does not extend to cases where such plea is joined with a cross-petition or counter-claim, which necessitates a trial on the merits of the issues tendered hy the plaintiff’s petition.</p> <p>4. Statute of Limitations: Beal Property: Due Process of Law. The statute of limitations respecting actions for the recovery of real property, as construed hy this court, is not open to the objection that it operates to deprive the owner of his property without due process of law.</p> <p>5. -: Married Women. Such statute runs against married women during coverture, whether residents or nonresidents of this state.</p>

<p>1. Evidence: Declaration as Part oe the Res Gest-Sí. A declaration to be competent evidence, as part of the res gestee, must be made at such time, and under such circumstances, as to raise the presumption that it was the unpremeditated and spontaneous explanation of the matter about which made. Following Onion P. R. Co. v. Elliott, 54 Neb. 299.</p> <p>2. Admission of Evidence: Discretion of Court. The admission or exclusion of such evidence rests largely in the discretion of the trial court; such discretion is not an absolute discretion to be exercised arbitrarily but a legal discretion, the abuse of -which constitutes reversible error.</p> <p>3. -: - — . Upon the face of the record in this case, held, that it was not an abuse of discretion to exclude the declarations offered in .evidence as part of the res gestw.</p> <p>4. Common Carrier: Trespasser. A party who boards a railway train with the intention of “beating” his way or “stealing a ride,” and, to that end, secretes himself on such train, does not stand in the relation of passenger to the common carrier, and the latter owes him no active duty as such passenger.</p> <p>5. Liability of Carrier. While the common carrier owes such person no active duty as a passenger, yet, if it uses unnecessary force to remove him, or expel him at a dangerous place, or while the train is moving at a dangerous rate of speed, and he thereby sustains injury, the carrier is liable in damages.</p> <p>6. Instructions. In order to determine whether a particular paragraph of the charge to the jury is erroneous, it should be read in the light of the whole charge and the entire record.</p> <p>7. Railway Company: Trespasser. A person who attempts to board a railway train in such a way as to avoid the payment of his fare, and intending to “beat his way,” is a trespasser, and the railway company owes-him no duty to keep its right of way free from obstructions.</p> <p>8. Error: Affidavits Not in Record. An assignment'of error, based on the alleged misconduct of the jury, will not be considered, where such misconduct is ascertainable, only from affidavits not ■ included in the bill of exceptions.</p>

<p>1. County Court: Appear: Repeal or Statute. Section 242, chapter 23, Compiled Statutes, 1901, is repealed, in effect, by sections 1 and 2, chapter 47, laws of 1881, entitled “An act providing for an appeal from the decisions of the county court in certain matters.”</p> <p>2. Appeal: Transcript. Under section 5 of the last mentioned act, it is the duty of the county judge to transmit to the district court a transcript of his proceedings, within ten days after an appeal from an order in probate is perfected.</p> <p>3. Fees: Waiver. Under said section the county judge has a right to prepayment of fees, but this right, may be waived, and will be, if he has established a regular mode of collecting his fees, which is complied with in the given case.</p> <p>4. Second Appeal. Taking a second appeal in a case does not, of itself, constitute an abandonment of the first one.</p> <p>5. Appeal: Jurisdiction. Where a party has, within due time, done all that is legally required to perfect an appeal, and • no waiver of transmission of record by county judge is shown, the district court does not lose jurisdiction of the appeal, by reason of its being filed six days late.</p>

<p>1. Eight of Creditor of Bank to Maintain Action on Bond. Where, pending an application for the appointment'of a receiver for a hank, under the provisions of chapter 8, Compiled Statutes, a bond is given to procure the return of the assets of such bank under the provisions of section 35 of said chapter, and such proceedings are dismissed and the assets returned, any creditor who is a beneficiary of such bond may maintain an action at law thereon, after the condition is broken to his damage.</p> <p>2. Erroneous Instruction. Record and evidence examined, and held that, in this ease, the plaintiff can maintain such an action, and that the charge, “It appearing that there are other unpaid creditors of the Globe Savings Bank not parties hereto and not represented herein, and the law being that this plaintiff can not maintain this suit if that be true, you are therefore instructed to find for the defendants,” given by the court to the jury, is erroneous, and the plaintiff is entitled to a new trial.</p>

<p>1. Appointment of Receiver: Notice: Waiver. On an application for the appointment of a receiver, the five days’ notice required by statute may be waived by the parties entitled thereto.</p> <p>2. -: -: -. Where the application is made in a suit then pending, notice may be served on the attorney of record representing the party against whom the application is made, and such attorney may waive the time required by statute and authorize the court to proceed to an immediate hearing of the application.</p> <p>3. -: Collateral Attack. The order of a district court appointing a receiver, is not subject to collateral attack, because such order was made in a law action, or because the petition fails to disclose all the facts usually required ®in a petition for that purpose.</p>

<p>1. Habeas Corpus: Scope of Inquiry. On habeas corpus the inquiry is confined to matters which are jurisdictional, mere irregularities or errors, however gross, which do not render the proceedings a nullity, not being considered.</p> <p>2. Quaere. Whether the provisions of section 488 of the criminal code, requiring the jury to ascertain and declare in their verdict the value of the property stolen, apply to prosecutions had under section 117 of the criminal code, queere.</p> <p>3. Criminal Law: Jurisdiction: Value of Property. In a prosecution under the provisions of section 117 of the criminal code, the jury returned a verdict of guilty, but did not include therein a declaration of the value of the property stolen. The sentence pronounced was two years imprisonment in the penitentiary. Held, That as the value of the property did not affect the character of the crime, the defect in the verdict was at most error, and did not deprive the court of jurisdiction to pronounce sentence.</p> <p>4. Habeas Corpus: Review of Evidence: Motion fob New Trial. Where, in an application for a writ of habeas corpus, there is a trial to the court, evidence is adduced, and judgment rendered on the merits, before the appellate court will inquire whether the judgment is supported by sufficient evidence, it must appear of record that a motion for a new trial was made and overruled.</p>

<p>Error to the district court for Nuckolls county: Samuel H. Sornborger, District Judge.</p>

<p>Error to the district court for Kearney county; Ed L. Adams, District Judge.</p>

<p>1. Appeal: Questions Not Considered Below. This court need not consider upon appeal questions which were not presented to or ■adjudicated by the trial court.</p> <p>2. Questions Not Raised in Briefs. An appellant should present in his briefs all the grounds upon which he seeks a reversal or modification of the decree appealed from; he will not be permitted to seek a modification as to matters not challenged in his hriéfs, when defeated in an attempt to secure reversal of the entire decree.</p> <p>3. Case Distinguished. Orr v. City of Omaha, 2 Neb. (Unof.) 771, distinguished.</p>

<p>1. Eminent Domain: Mortgagee: Appeal. A mortgagee is an owner within the meaning of the statute providing for the tailing of land under the power of eminent domain; and as such owner he has the right to prosecute an independent appeal from the freeholders’ award.</p> <p>2. ■ — 1-: Award: Lienholders. In proceedings for the condemnation of land under the power of eminent domain, the mo'ney awarded by the freeholders, or by the district court on appeal, stands in place of the land and belongs to lienholders to the extent of the value of their liens.</p> <p>3.-: Appeal by Mortgagee. On appeal by a mortgagee from an award made by freeholders in a condemnation proceeding, the question to be tried and determined is, the value of appellant’s lien on the property appropriated.</p> <p>4. Appeal: Effect. An appeal by a mortgagee in a condemnation proceeding is not effective as to the landowner against whom no summons has been issued.</p> <p>5. -: New Parties. If the landowner is not brought into the district court by the mortgagee’s appeal, the corporation, at whose ' instance the condemnation proceeding was initiated, may bring him in, if it is necessary to do so for the protection of its rights.</p> <p>6. Conclusiveness of Award. A landowner who fails to appeal from the freeholders’ award in a condemnation proceeding, is conclusively bound by it.</p>

<p>Error to the district court for Cuming county: Gux T. Graves, District Judge.</p>

<p>1. Larceny: Pleas: Variance. When it appears that the charge in the complaint is substantially the same as- that set forth in the information, a plea of a want of a preliminary examination, or a variance between the complaint and the information, is unavailing. Hochenberger v. State, 49 Neb. 706.</p> <p>2. -■ — : Information. Ap information charging a person with larceny can not be said to be bad for duplicity or uncertainty because, after alleging the felonious talcing of the property charged to have been stolen, it is specifically 'alleged that such felonious talcing was “with the intent to unlawfully and feloniously convert the same to his own use against the will of the said Jesse W. McNiel” (the owner).</p> <p>3. -: Circumstantial Evidence: Inference. The fact that property alleged to have been stolen was talcen without the consent of the owner, may be inferred from circumstances shown in evidence as well as by direct testimony that none was given.</p> <p>4. Instruction: Reasonable Doubt: Burden of Proof. An instruction which in substance advises the jury that the presumption of innocence remains with the accused till by competent evidence the state establishes guilt beyond a reasonable doubt, is not subject to the objection that the burde'n of proof is thereby shifted to the defendant</p> <p>5. -: Exceptions. Rulings of the trial court on certain instructions given and refused, examined and found without prejudicial error.</p> <p>6. Evidence: Exceptions. Testimony admitted over objections on the ground of being too remote, held, propérly admitted.</p> <p>7. Sheriff as Witness. A deputy sheriff was a material witness for the state in a criminal prosecution for larceny; he also had charge of the jury during its deliberations. Held, That the fact of his having been called as a witness would not, of itself, disqualify him from serving in the latter mentioned capacity.</p> <p>8. Evidence. Evidence examined, and held sufficient to support a verdict of guilty as fouhd by the jury.</p>

<p>Appeal: Undertaking: Void Statute. The principal and sureties upon an undertaking in an appeal,- prosecuted, under a void statute, to a court to which, in fact no lawful appeal lies, are liable on the instrument, if the court without objection entertains the appeal, and upon a retrial of the issues renders a judgment adverse to the appellant.</p>

<p>1. Deed of Insane Person. The deed of an insane person may be avoided, as against a grantee, for value, without notice of his grantor’s insanity. Dewey v. Allgire, 37 Neb. 6, followed.</p> <p>2. Burden of Proof. The burden of showing that a conveyance was made by an insane person during an interval of lucidity, is upon the party claiming under the instrument.</p> <p>3. Ratification. Neither the county court, nor a person under guardianship because of insanity, nor the guardian of the latter, nor all together, can ratify or confirm a conveyance of lands by the ward made previous to the guardianship but while he was insane.</p>

<p>1. Trial: Demurrer. The overruling of a demurrer does not prevent a finding, after the evidence has been tahen, that there is no cause of action.</p> <p>2. Agreement to Mortgage Crops Not Sown: Specific Performance. An agreement to execute, after they are growing, a mortgage upon crops, may be enforced specifically in equity if sufficiently definite in its terms and clearly established, and the situation of the parties and property is such that justice and equity call for such a remedy.</p> <p>3. -. It is no objection to such an agreement that the crops referred to were not in being when it was made.</p>

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

<p>Appeal from the district court for Lancaster county: Lincoln Frost, District Judge.</p>

<p>1. Will: Construction: Jurisdiction. Where no trust is created, neither the executor, nor the heirs or devisees, who claim only a legal title in the estate, will be permitted to come into a court of equity for the purpose of obtaining a judicial construction of the provisions of a will. Where only purely legal titles are involved, equity will not assume jurisdiction to declare such legal titles, but will remit the parties to their remedies at law.</p> <p>2. -: -: -. The district court has no original jurisdiction in an action to contest a will, or set aside the probate of the same.</p> <p>■ 3. -: Probate: Jurisdiction. -The county court has original jurisdiction in the probate of a will and its order admitting it to probate is conclusive, unless, by a direct proceeding by appeal or otherwise, it is reversed.</p> <p>4. -: Construction. The county court has jurisdiction to construe wills for the purposes of the administration and settlement of estates. But the construction of a will, in such á case, is for the information and benefit of the executor or administrator only, in order to advise him what course to pursue. It will protect him from any charge of maladministration of.the estate, but it adjudicates nothing beyond his rights and liabilities in the execution of his office; controversies between adverse claimants, under the devise, will not be affected thereby.</p> <p>5. Petition: Demurrer. A petition in which it is alleged that the plaintiffs are the owners of and have a legal title to certain real estate, describing it, that defendant by his wrongful acts has cast a cloud on their title, and which contains a prayer for general equitable relief, states a cause of action and will resist a general demurrer.</p> <p>6. -: -: Surplusage. If such petition contains other allegations and demands constituting a cause or causes of action over which the court has no jurisdiction, such matters will not render it vulnerable to a demurrer but should be treated as surplusage.</p>

<p>1. Common Carrier: Freight Regulation. A railroad company, as a common carrier, may make reasonable rules and regulations for the reception, carriage and delivery of freights, including the classification and suitable preparation of articles for shipment; and such rules and regulations shippers are to conform to.</p> <p>2. Reasonableness, Question of Law. The reasonableness of such rules, regulations and classification is a question of law for the court; and it is reversible error to submit that question to the jury.</p>

<p>1. Corporation: Authority oe General Manager. The authority of a general manager to conduct the ordinary business of a corporation, organized for the purpose of yarding, feeding and taking care of cattle, hogs, sheep and horses consigned for sale to a certain market, is not broad enough to authorize him to sign a petition for paving a city street and thus charge the real estate of the corporation, abutting thereon, with the cost of such improvement.</p> <p>2. —-•: Board oe Directors. The act of signing the name of the corporation to such a petition is one which falls within the managing powers of the board of directors, who are, by law and by its articles of incorporation, made its managing agents,</p> <p>3. Municipal Corporation: Street Improvements: Burden oe Prooe. The authority to perform such an act must come from the board of directors; and the burden is upon the city which seeks to enforce a special tax against specific lots to pay for such improvement, to show that the general manager was duly authorized by the corporation to sign such petition for and on its behalf.</p> <p>4. -: Special Assessment: Notice. Under the statutes in force in the year 1898, no special tax could be assessed upon and made a charge against specific real estate in a city of the first class, to pay for the construction of a wooden sidewalk, without the adoption of a resolution fixing the cost of such construction, as a special assessment thereon, at a meeting of the city council of which, at least, ten days’ notice had been given before holding the same, or personal service of notice thereof on the persons owning or occupying the property to be assessed.</p> <p>5. -: - — . At that time, cities of the first class had no power to levy a special tax on specific lots, for the purpose of paying the cost of removing garbage therefrom.</p>

<p>1. Appeal: Presumptions. The usual presumptions, in favor of a finding of the trial court, do not obtain, on appeal in an equity case.</p> <p>2. Foreclosure: Petition. A bank issued certificates of deposit which were guaranteed by its directors, and secured by trust deeds given by the guarantors and a stockholder on théir individual property; the guarantors giving trust deeds to secure the payment of the certificates; a petition filed by the holder of one of the certificates, for the foreclosure of the trust deed, given by the stockholder, alleges that the plaintiff recovered a judgment at law against the bank, and that an execution issued thereon has been returned unsatisfied. Held, That such allegation does not relieve the plaintiff from conforming to the requirements of section 850 of the code, requiring a petition for foreclosure to state whether any proceedings at law have been had for the recovery of the debt secured by the instrument sought to be foreclosed.</p>

<p>Error to the district court for Lancaster county: Albert J. Cornish, District Judge.</p>

<p>Error to the district court for Douglas county: Willard W. Slabaugh, District Judge..</p>

<p>1. Tenant by Curtesy. Plaintiffs’ mother died in 1883, seized in fee of real property in this state, leaving their father as surviving spouse. Held, That the father took a Ufe estate in the property as tenant by curtesy.</p> <p>2. Sale by Life Tenant and Remainderman: Proceeds. Plaintiffs and their father sold, for $40,000, real property in which he held a life estate and they the remainder. Plaintiffs received $24,000 and the father retained $16,000, and mingled it with his own property. The father lived nine years after the sale, his age not being shown .in the record. Held, That these facts do not show plaintiff’s ownership of the $16,000 retained and used by the father. Held, further, That the father’s declaration of an intention to invest the same for the plaintiffs did not create a title thereto in them.</p> <p>3. Record and Evidence: Equitable Title. Record and evidence examined and held, not to show error. Held, further, That the trial court was justified in rejecting plaintiff’s claim of equitable title to the property involved in the action.</p>

<p>Error to the district court for Gage county: Charles B. Letton, District Judge.</p>

<p>Appeal from the district court for Saunders county: Samuel H. Sedgwick, District Judge.</p>

<p>Witness: Evidence oe Age. A member of a family, living therein, is presumptively qualified as a witness to prove the age and pedigree of the other members; but when it is shown on cross-examinatio'n that the knowledge of such witness is derived, not from family tradition and repute, but from statements made by a stranger, the testimony should be excluded.</p> <p>1. Competency of Wife to Testify to Age of Husband. The plaintiff, ■wife of tbe deceased with, whom she had lived for twenty years before his death, and to whom she had talked regarding his birthday at different times, and who had a general acquaintance with the family history and tradition, held to be a competent witness to testifiy as to the age of her deceased husband.</p> <p>2.-: Presumption. A wife who has lived for twenty years with her husband will be presumed to know his age and to be qualified to testify thereto, unless the contrary clearly appears from the record.</p> <p>S. Dato of Birth: Evidence. The date of a person’s birth may be testified to by members of his family, although they may know of the fact only by hearsay founded on family tradition.</p> <p>4. Qualification of Witness. Because the first knowledge obtained by a wife as to her husband’s age' is derived from an incompetent source, this will not disqualify her from testifying as to his age, where, hy reason of her membership in the family, knowledge of ■ such fact is obtained from other sources to which no valid objection applies.</p> <p>5. Evidence. Evidence examined and held sufficient to sustain the verdict of the jury.</p> <p>6. Instructions. Alleged errors in giving and refusing to give certain instructions duly excepted to examined and held not well taken.</p> <p>7. New Trial: Newly Discoveked Evidence. A'n application for a new trial on the ground of surprise and newly discovered evidence is addressed to the sound discretion of the trial court; and its rul- ■ ing thereon will not he' disturbed, unless there is an abuse of discretion shown.</p> <p>8. -: -: Diligence. Before the defendant is entitled to a new trial on - the ground of newly discovered evidence, it must appear that due diligence was exercised to procure such evidence upon the original trial, and that it is through no fault or neglect of the party mailing the application that such evidence was not then produced.</p> <p>9. :-: — : Ruling. The ruling of the trial court on the application for a new trial, on the ground of surprise and newly discovered evidence, held to be without prejudicial error.</p>

<p>1. Verdict Contrary to Instructions. A verdict rendered in plain disregard of the instructions, is contrary to law, and will, ordinarily, be set aside without an examination of the instructions to determine whether correct ji- not.</p> <p>2. Evidence of Written Contract of Marriage. Evidence examined and held not to establish a written contract of marriage.</p> <p>3. Statute of Frauds. An unwritten contract, which.by its terms is not to be performed within a year from the making thereof, is not taken out of the statute by an oral acknowledgment made within a year from date of performance.</p> <p>4. Appeal: Estoppel. Where the record discloses that a defendant has raised the question and insisted in the dislrict court that there was not sufficient evidence to warrant the submission of a material issue to the jury, and the court nevertheless insists on submitting the issue, the defendant is not estopped on appeal to raise the same question here, because he requested and obtained an instruction defining the law relating to the issue as he understands it to be.</p>

<p>Error to the district court for Custer county: Homer M. Sullivan, District Judge.</p>

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

<p>1. Contracts: Validity, Contracts made in this state, hy residents of this state, with foreign building and loan associations, such contracts being made through agents of such associations located in this state, are Nebraska contracts, and their construction, validity and enforcement are governed by the laws of this state.</p> <p>2. Purchaser of Equity of Redemption: Usuby: Estoppel. The rule that the purchaser of the equity of redemption, who purchases subject to a mortgage, and who deducts from the purchase price sufficient to pay such mortgage, is estopped to defeat the mortgage on the ground of usury, is not applicable when the vendee and the mortgagor, at the time of sale, agree that the incumbrance is tainted with usury, and there is retained out of the purchase price only enough to pay the incumbrance, less any usurious penalties.</p> <p>3. Evidence: Usury. Evidence examined and held that defendant was not estopped to set up the plea of usury.</p> <p>4. Evidence. Evidence examined and held to sustain the judgment.</p>

<p>Error to the district court for Saline county: G-eorge W. Stubbs, District Judge.</p>

<p>Manufacturing Corporation. A corporation organized to “plant, harvest, store, purchase, manufacture, market, sell and deal in chicory” held a manufacturing corporation within the purview of section 37, chapter 16, Compiled Statutes.</p>

<p>1. Hiparían Owner: Prescription. A lower riparian owner obtains no right to receive the water of a stream, as against an upper owner, by user for the statutory period of prescription.</p> <p>2. Easement: Prescription. In order to acquire an easement by prescription, the adverse user must not only be continuous in point of time, but also substantially identical, during the whole of the statutory period, with respect to manner and extent.</p> <p>3. --: -. One who seeks to acquire an easement of maintaining a ditch over another’s land by adverse user must maintain it without material change of location for the full statutory period. That he may have had a ditch somewhere upon the land for ten years, does not give him a right to maintain it in a new location, or to use an extension thereof made within the period.</p>

<p>Partnership: Equity: Accounting. A partner who, without notice to or knowledge of his copartner, takes substantially all of the ready money of the firm and absconds, remaining away eight months without disclosing his whereabouts, has no standing in equity to demand an accounting after his copartner has wound up the business and paid the partnership debts.</p>

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

<p>1. Conspiracy: Proof. A conspiracy, like any other fact which is the subject of judicial investigation, may be proved inferentially or by circumstantial evidence.</p> <p>2. Evidence. The acts and declarations of a conspirator, during the pendency of the conspiracy, and in furtherance of the common purpose, are admissible in evidence against his associates.</p> <p>3. Conspiracy. A conspiracy to steal and sell hogs for the benefit of all engaged in the illegal enterprise is pending until the sale has been made and proceeds divided.</p> <p>4. .Order of Proof. Before the acts and declarations of a conspirator are entitled to be considered as evidence against his associates, the conspiracy itself must be established, but the order of proof is a matter within the 'discretion of the trial court.</p> <p>5. Evidence. The word "evidence,” in its technical meaning and common acceptation, includes all the means by which any fact in dispute at a judicial trial is established or disproved.</p> <p>6. 'Instructions. When the trial court gives .an accurate, pertinent and intelligible instruction covering a particular point, it is not bound, at counsel’s request, to give another instruction expressing the same idea in more perspicuous phrase.</p> <p>7. Evidence. Evidence examined and found sufficient to sustain the verdict</p>

Original application for a peremptory writ of mandamus to require the auditor of public accounts to register and certify certain precinct bonds.

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

<p>Error: Transcript. Upon petition in error to this court, the proceedings of the district court can be shown only by a transcript of the records of that court duly certified. Affidavits can not be used to supply omissions in such transcript.</p>

<p>Guardian’s Sate: Public Policy. It is not conduct contrary to public policy or fraudulent for a guardian, before applying for a license to sell real estate belonging to his ward, to procure the obligation of an intending purchaser to bid an adequate price at the sale or, after the confirmation, to advance and account for the amount of the bid, at the instance and on behalf of the purchaser.</p>

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

<p>Mutual Benefit Association: Ciianse of Beneficiary. A change of beneficiaries made by a member of a mutual benefit insurance association, which does not reach the head office until after the death of the member and then is refused because not in accordance with the by-laws as to a part of the fund, has no effect as to the part of the fund in reference to which it is in proper form, the association having a by-lh,w which declares the old certificate to be in effect until the new one is delivered.</p> <p>Proceeding in Error: Attorneys’ Fees. Attorneys Who have undertaken to establish, for a contingent fee, a client’s right to a fund in court, and who, after rendering valuable services, have been defeated in the district court, and who have furnished a supersedeas bond to retain the^fund, and are taking steps to have the decision against their client reviewed on error, are entitled, when their client under these circumstances refuses to pay them and instructs them to proceed no. further on her. behalf, to prosecute error proceedings in her name, on their own behalf, in order to collect their contingent fee out of the fund still in court, if they can establish their client’s right to it.</p>

<p>1. Appeal. On an appeal in equity the appellee is not concluded as to any matter directly involved. in the questions raised by the appellant.</p> <p>2. -. As to matters not necessarily involved in the appeal an appellee who enters no cross-appeal should be held concluded.</p> <p>3. County Board: Power to Contract. The limitation on the power of the county board to contract for bridge building to. cost a sum not greater than the amount of money on hand in the county bridge fund derived from a levy of previous years and two-thirds of the levy of the current year, gives no authority to the board to take into account the levy of the current calendar year prior to the making of such levy. Until it is made there is no “levy of the current year.”</p> <p>4. -: -: Prerequisite. The adoption of plans and specifications is a necessary preliminary to advertising for and letting a contract by the year for the building of bridges, and such advertising and letting must be in accordance with the plans and specifications so adopted.</p> <p>5. Repairing Bridges. There is no authority for the letting of annual contracts for repairing of bridges or for the doing of such repairing under an annual contract, where the amount exceeds ?100.</p> <p>6. Injunction: Equity. A court of equity will not enjoin the further execution of a contract and enjoin the prosecution of any claim for compensation for work and material already furnished in good faith under it, except on condition of the payment of a fair value for the work and material so furnished.</p> <p>7. -. where defendant was proceeding under color of a lawful contract, the institution of an action to enjoin further proceedings under it, and the ordering of a temporary injunction on condition of the furnishing of a bond, which is not given, do not necessarily deprive the subsequent proceedings of defendant under the contract of their good faith and color of lawfulness.</p>

<p>Error to the district court for Douglas county: William W. Keysor, District Judge.</p>

<p>Error to the district court for'Nemaha county: John S. Stull, District Judge.</p>

<p>Error to the district court for Stanton county: Guy T. Graves, District Judge.</p>

<p>Municipal Corporation: Liability: Fees. Fees of officers and witnesses for services rendered in a prosecution for the violation of an ordinance of a city, either in police court or in district court upon appeal, can not be collected from such city, unless their payment by the city is required by statute or by ordinance authorized by statute.</p>

<p>1. Homestead Entry: Jurisdiction. The courts Of this state have no jurisdiction to try and determine the validity of homestead en1 tries duly allowed by the officers of the land department of the general government.</p> <p>ft. --: Injunction: Lessee. A party entering public lands as a homestead is entitled to the possession (hereof and can not be enjoined from exercising his right of possession by one who with-' out right held a prior possession. A lease of the land by the homesteader gives the lessee a like right of possession.</p>

<p>- 1. Marriage Contract. Where upon an agreement of marriage the parties expressly agree that the ceremony shall be celebrated in accordance with the rules and customs of a particular religion and church, such rules and customs become a part of the contract and binding upon the parties.</p> <p>2. Action for Breach.. Where one of the parties to a marriage contract fails to perform his agreement at the time fixed for the ceremony, no reasonable excuse existing for such failure, the other party may rescind the contract and maintain an action for damages.</p>

<p>1. Partnership: Transfer. Where one partner of a firm conveys or assigns partnership property, and such assignment is concurred in by the other member of the firm, the assignee will have a right to the property assigned superior to one whose claim is based upon a subsequent assignment from one member of the partnership.</p> <p>2. Instructions. Instructions examined, and held not erroneously given.</p>

<p>Error to the district court for Clay county: George W. Stubbs, District Judge.</p>

<p>Error to the district court for Lancaster county; Albert J. Cornish, District Judge.</p>

<p>1. Specific Performance. An agreement to devise land, upon sufficient consideration, may be enforced specifically in a proper case._</p> <p>2. Agreement to 'Will Property. It is sufficient if the agreement is that the promisee shall receive the property, or that it shall be left him at the decease of the promisor. There need not be an express promise to make a will.</p> <p>3. Equity: Trust. Equity will impress a trust upon the property in such cases, which will follow it into the hands of personal representatives or devisees of the promisor.</p> <p>4. Agreement Enforceable. An agreement to leave property by will is not ambulatory or revocable, after performance on the part of the promisee^</p> <p>5. Part Performance: Statute or Frauds. Part performance of such a character that the court can not restore the promisee to the i situation in which he was when the agreement was made or compensate him in damages, is sufficient to take the case out of the statute of frauds.</p> <p>1. Quieting Title: Decree: Evidence. Evidence examined, and found sufficient to sustain the decree entered in the trial court quieting title to the real estate in controversy in the plaintiff, appellee in this court.</p> <p>2. Probate Court: Jurisdiction. A probate court is without jurisdiction to try and determine title to real estate.</p> <p>3. Will: Probate: Collateral Attack. A suit in the district court to enforce the specific performance of a parol agreement to devise real property and to quiet title in the plaintiff, as against those claiming under a will duly allowed and admitted to probate in the county court is not a collateral attach on the judgment admitting such will to probate.</p> <p>4. Affirmed. The former opinion and the judgment of affirmance in accordance therewith, adhered to.</p>

<p>1. Trade-Mark: Injunction: Deceit. If the manufacturer of a compound or preparation according to a secret formula is himself guilty of false or misleading representations in any material respect in connection therewith, or if his trade-mark, label, or advertisements contain distinct false assertions which operate to deceive the public as to its nature, composition or origin, he has no standing in a court of equity, and a suit to enjoin misuse of his trade-mark, trade-name or label is not maintainable.</p> <p>2. False Eepresentation. But mere statements of opinion as to its curative properties or as to the cause of a disease, concerning which there is a conflict of expert opinion, are not false representations, within the meaning of the rule, even though somewhat sweeping or even extravagant.</p>