Volume 71 — Nebraska Reports

<p>Eeror to the district court for Ouster county: Homer N. Sullivan, Judge.</p>

<p>Appeal from the district court for Douglas county: Clinton N. Powell, Judge.</p>

<p>ERROR to the district court for Webster county: Ed L. Adams, Judge.</p>

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

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

<p>1.Evidence: Deeds: Marriage: Validity. Evidence held not to show such, total want of understanding, or such mania, affecting the transactions in question, as to avoid the deeds and marriage of Seth F. Winch for insanity, in the absence of fraud or undue influence.</p> <p>2. -: -: Undue Influence. Evidence held sufficient to avoid, for undue influence, the deeds concerning all his property, of the value of many thousand dollars, made by a frail old man, who had shown symptoms of dementia, to his housekeeper, without consideration.</p> <p>3. Statute of Limitations. Where the undue influence is alleged and shown to have continued to the grantor’s death, 7 years later, only interrupted by his violent insanity toward the last, and the control of both person and property of the grantor lasted to the end, the statute of limitations against an action to set aside the deeds will not commence to run until his death as against his heirs.</p> <p>4. Marriage: Mental Capacity. Mental weakness or even unsoundness, not proceeding to the extent of inability to contract in ordinary affairs, will not alone avoid a marriage.</p> <p>5. Divorce: Decree: Collateral Attack. A decree of divorce ob- . tained without collusion by a defendant on a cross-bill in a suit begun in a county where neither party resided, but by a resident of the state, whose motion to dismiss the cross-bill for want of jurisdiction was denied, and who contested its allowance at the trial hut took no appeal, is not open to collateral attack by his heirs in claiming his property.</p> <p>1. Divorce: Jurisdiction. The district courts of this state have no jurisdiction of the subject of divorce except such as is given them by the statute providing for divorce and alimony.</p> <p>2. -: -: Residence. The residence of one of the parties in the county in which the action is brought is necessary to the jurisdiction of the court.</p> <p>3. Judgment: Jurisdiction: Collateral Atttack. When the record affirmatively shows the nonexistence of some fact necessary to the jurisdiction of the court over the subject matter of the action, a judgment pronounced therein will be void and may be collaterally attacked.</p>

<p>ERROR to the district court for Douglas county: Willard W. Slabaugii, Judge.</p>

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

<p>1. Riparian Rights. “A riparian’s right to the use of the flow of the stream passing through or hy his land, is a right inseparably annexed to the soil, not as an easement or appurtenance, but as a part and parcel of the land; such right being a property right, and entitled to protection as such, the same as private property rights generally.” Crawford Co. v. Hathaway, 67 Neb. 325.</p> <p>2. -: Subsequent Appropriation: Pleading. A riparian proprietor, whose use of the stream for water power is impaired by subsequent appropriations of the water and whose loss thereby is not offered to be compensated, is not required, in an action to enjoin such appropriation, to set up specifically what rights are claimed by the appropriators severally or jointly. It is sufficient if he set out his own right, its priority and the injury to it, the fact of no compensation for its loss, and in general terms the wrongfulness of the appropriation.</p> <p>3. -: Petition eor Injunction. It is not a fatal objection, to a petition for injunction against a large number of defendants taking water from a stream at many points at long distances from plaintiff’s mill, and persisting in doing so, and making arrangements to continue the practice to the injury of plaintiff’s mill, without compensation, that it asks no other specific relief than the writ.</p> <p>1. Hiparían Rights: Petition: Sufficiency. In an action by a lower riparian owner to enjoin irrigation corporations and others from diverting water from the stream to the injury of his mill, a petition which alleges that the defendants have been maintaining “dams and ditches and other appliances” upon the stream above his mill for seven years, by means of which they have during that time appropriated stated quantities of water for irrigation purposes, does not state a cause of action without alleging facts Showing that such appropriation and use of water by defendants is unlawful.</p> <p>2. Use of Waters: Petition to Enjoin. The allegations of the petition being consistent with the lawful use of the water by the defendants, they will he so construed as against the pleader.</p> <p>3. -: -: Action foe Damages. Parties who have appropriated water for irrigation purposes pursuant to law, and continued the use of water under such appropriation for more than seven years, can not he enjoined from the continued use of such right by a lower riparian owner whose mill privilege may be injured thereby; his remedy is an action for damages.</p>

<p>1. Innkeepers: Duties. In receiving a guest into his hotel, a hotel keeper impliedly undertakes that such guest shall he treated with due consideration for his comfort and safety.</p> <p>2. -: Trespass ■ by Servant: Liability. A trespass committed upon the guest in the hotel hy a servant of the proprietor, whether actively engaged in the discharge of his duties at the time or not, is a breach of such implied undertaking, for which, the proprietor is liable in damages.</p> <p>3. Admissions by Manager. It is not within the scope of the authority of a hired manager of • a hotel to bind his employer by admissions concerning such trespass after it had been committed.</p> <p>4. -. "Wien such admissions are made a day after the trespass, and only remotely connected therewith, they are not admissible in evidence as a part of the res gestee.</p> <p>1. Master and Servant: Torts or Servant. The relation of master and servant does not render the master liable for the torts of the servant, unless connected with his duties as such servant or within the scope of his employment.</p> <p>2. Innkeepers: Assault by Servant: Liability. It is the duty of a hotel keeper to protect his guests while in his hotel against the assaults of employees who assist in the conduct of the hotel and in the care and accommodation of the guests. If damages result from such assault the hotel keeper is liable therefor.</p>

<p>Decree: Reversal: Discretion oe Trial Court. Where the judgment of this court upon appeal in an equity case reverses the judgment of the trial court and remands the cause, hut gives no further direction, the trial court is reinvested with discretion to proceed therein as furtherance of justice may require, and, unless such discretion is abused, its action will be sustained.</p> <p>1. Decree: Reversal: Procedure in District Court. The rule of this court is that, when a decree in equity is reversed and remanded generally without specific instructions, the lower court is to exercise its discretion in the further disposition of the case, in accordance with the judgment of this court and the law of the case as expressed in the opinion.</p> <p>2. Commissioners’ Opinions. An unofficial opinion of a court commissioner is not the opinion of the court. The conclusion reached is approved, and the recommendation adopted. The law of the case is to he derived from the judgment of the court, and the questions necessarily determined thereby.</p>

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

<p>1. Petition: Demurrer. Petition examined, and held not subject to demurrer upon the ground of improper joinder of causes of action.</p> <p>2. Indemnifying Bond: Action: Evidence. In an action by a city against a gas company upon a bond given by the latter to indemnify the city against loss through the recovery against the city for injuries occasioned by open trenches dug by the company, the execution .and delivery of the bond was admitted, and the evidence established the recovery of a judgment against the city for a personal injury resulting from an open trench dug by the company. Held, That there was a liability against the company on the bond, and that the city was entitled- to judgment. Held, further, That evidence of the presence or absence of negligence of either the company or the city as related to the injury was immaterial.</p> <p>3. Instruction. Instruction examined, and held properly refused.</p>

<p>1. Real Estate: Sale: Contract. A verbal contract with an agent or broker to sell land for the owner or to obtain a purchaser therefor is void.</p> <p>2. Petition. Sufficiency. A failure to state a cause of action in the petition can not be cured by averments in the reply.</p> <p>3. -: Demurrer. Petition examined, and held not to state a cause of action.</p>

<p>1. Referee’s Report: Stipulation: Estoppel. Where parties consent that the report of a referee, containing the evidence taken by-said referee and his findings of fact and conclusions of law, shall he submitted to the court, together; with the objections and exceptions thereto, for determination on the merits by the court, they are precluded by such submission from assigning error by the court in setting aside the report and finding's of the referee and substituting therefor the findings of the court.</p> <p>2. Review. In sucli case this court will only consider the correctness of the findings and judgment of the district court.</p> <p>3. Evidence. Evidence examined, and held to sustain the findings and judgment of the district court.</p>

<p>1. Appeal and Error. A litigant, who brings to this court an appeal-able case, can not have it considered in this court both as an appeal and as a proceeding in error.</p> <p>2.-: Election. If, in an appealable case, a transcript of the proceedings in the district court is duly filed in this court, and all proceedings taken necessary to a review upon proceedings in error as well as upon appeal, the party bringing the cause here may submit the same either as an appeal, or as upon proceedings in error. If he makes no choice, it will be considered as upon proceedings in error.</p> <p>3.-: -. After serving and filing his brief in this court, in which he presents only questions not reviewable upon appeal, a party will not, ordinarily, he allowed to delay the hearing, by abandoning his proceedings in error and submitting the cause as upon appeal. Nor will he be allowed to make such change, except upon just terms, when his opponent will be required to rebrief the case, or is otherwise put to cost or expense thereby.</p>

Original application in the nature of quo warranto to determine the rights of respondents to office as fire and police commissioners of a city of the first class.

<p>Error to the district court for McPherson county: I-Ianson M. Grimes, Judge.</p>

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

<p>1. Homestead: Sam by Administrator: Validity. A homestead of less value than $2,000 can not be disposed of at administrator’s • sale either for the discharge of incumbrances thereon, or for the payment of debts against the estate of the decedent, and a license granted by the district.court, purporting to authorize such a sale, is absolutely void.</p> <p>2. -. A homestead may be composed of contiguous parts of different governmental subdivisions.</p> <p>3. Life Tenant: Ixcumbraxces. As a general rule a life tenant who, in order to preserve the estate, has paid off and discharged an incumbrance upon the fee, is entitled to reimbursement from the .reversioners or remaindermen.</p> <p>1. Life Tenant: Reversioner: Incumbrances. Ordinarily, a life tenant who pays off an incumbrance upon the fee, will be entitled to he reimbursed by the reversioner or remainderman the amount so paid, less such sum as will equal the present value of the annual installments of interest he would have paid during his life, if the incumbrance had remained so long in existence, with lawful interest on the residue, so ascertained, from the date of payment.</p> <p>2. Minors: Equity. Although minors may not be bound either by contract or by estoppel, equity will not lend its affirmative aid to enable them to take an unjust advantage of the mistakes or misfortunes of their adversaries.</p>

<p>1. Contracts: Presumptions. In the absence of fraud or imposition, persons of mature years and ordinary intelligence and education are presumed to have read the contracts executed by them, or to have otherwise made themselves acquainted with their contents.</p> <p>2. Agents: Powers: Limitations. A person dealing with an agent of limited powers, and who knows of the nature a'nd extent of the limitation, is hound thereby.</p>

<p>1. Partnership: Actions. A partner’s share of a single item of partnership profits, the result of a single transaction, may be recovered of a copartner who is retaining it, by a'n action at law, if all the other partnership dealings are settled between the parties.</p> <p>2. Directing Verdict: Evidence: Error. When plaintiff’s evidencie tends to establish such a slate of facts, and was admissible under the pleadings, it is error to instruct the jury to return a verdict for defendant.</p>

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

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

<p>Appeal from the district court for Saline county: George W. Stubbs, Judge.</p>

<p>1. Wills: Child Omitted: Evidence: Burden oe Proof. Section 149, chapter 23, Compiled Statutes, provides: “When any testator shall omit to provide in his will for any of his children, or for the issue of any deceased child, and it shall appear that such omission was not intentional, hut was fnade by mistake or accident, such child or the issue of such child shall have the same share in the estate of the testator as if he had died intestate, to he assigned as provided in the preceding section.” Held (1) That parol evidence is admissible to show whether such omission was intentional; (2) That the burden of proof is on the pre-termitted child or grandchild to show that the omission was unintentional.</p> <p>2. Trial: New Parties. ’ Section 50a of the code, which provides for intervention before trial, does not curtail the power of a court to bring other parties before it, when satisfied that their presence is necessary to a proper determination of the cause.</p> <p>3. Harmless Error: An erroneous ruling overruling a demurrer is error without prejudice, where the pleading assailed is after-wards amended, and the cause submitted and determined on the amended pleading.</p> <p>4. Trial: Amendment. When necessary to a proper determination of the cause, it is not error to permit an amendment to a pleading after trial, and reopen the case for a trial of the issues tendered by such amendment.</p> <p>5. Eindings: Evidence. Evidence examined, and held insufficient to sustain the findings of the trial court.</p>

<p>1. Common Carrier: Action: Contbibutory Negligence. A fast 'through train on defendant’s road was sidetracked at a small way station to allow another through train to pass. Some fifteen minutes later, plaintiff’s intestate left a car of the standing train, in which he was a passenger, and crossed diagonally the main track upon which the other train was approaching, at a time and in such direction that he could see the incoming train. He hurriedly went to a pump some 10 steps from where he crossed the main track, hurriedly procured a drink, and ran hack toward his car, attempting to pass in front of the rapidly moving train on the main track, and was struck by the engine and killed. Held, That deceased was guilty of such negligence as to preclude recovery.</p> <p>2. Directing Verdict. When the evidence is not sufficient to warrant a verdict for plaintiff, the court should not submit the case to the jury upon the theory that it is so sufficient. A peremptory instruction for defendant in this case held warranted.</p> <p>3. Case Approved. Chicago, R. I. & P. R. Co. v. Sattler, 64 Neb. 636, approved and followed.</p>

<p>Municipal Corporations: Powers. Section 69, chapter 12 of the laws of 1887, does not authorize or contemplate the issue of negotiable bonds by cities and villages to aid private parties in the construction of a system of waterworks for such city or village.</p>

<p>ERROR to the district court for Lancaster county: Edward P. Holmes, Judge.</p>

<p>Error to the district court for Douglas county: Charles T. Dickinson, Judge.</p>

<p>Foreclosure of Mortgage: Deficiency Judgment. Where it is disclosed that the notes, to secure which a mortgage is given, are barred by the statute of limitations at the time of the commencement of the foreclosure proceedings, the mortgagee is not entitled, under the provisions of section 847 of the code as it existed prior to the legislative session of 1897, to a deficiency judgment, after the coming in of the report of the sale of the mortgaged property.</p>

<p>Appeal from the district court for Antelope county: John F. Boyd, Judge.</p>

<p>Error to the district court for Cheyenne county: George W. Norris, Judge.</p>

<p>1. Manslaughter. Where one points a loaded pistol at another, although he has some reason to think it is not loaded, he is guilty of an assault; and if he pulls the trigger, thus causing the pistol to be discharged and the person assaulted is killed thereby, he is guilty of manslaughter.</p> <p>2. Instructions. Instructions requested by the defendant examined, and held properly refused.</p> <p>8. Request for Instructions. A defendant in a prosecution for murder, is ordinarily entitled to have the theory of his defense submitted to the jury by proper instructions; but where, by his own theory, he is guilty of manslaughter, and the jury so find, his rights are not prejudiced by a failure to give his instructions.</p> <p>4. Sentence Beduced. The defendant, in sport or through mere wantonness, pointed a pistol at the deceased, having some reason to think that it was not loaded; and the deceased, apparently in fear, said, “Look out how you handle that revolver around here; you have got your finger on the trigger”; and the defendant replied, “I know it, and I will show you how it works.” He thereupon pulled the trigger, and a shot followed which killed the deceased. On his trial the jury found defendant guilty of manslaughter. Held, That under these circumstances, a sentence of seven years in the penitentiary was excessive, and that the sentence should be reduced to four years.</p>

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

<p>Mortgage Foreclosure: Homestead: Fraud. One of the most salutary rules of the law is that one shall not profit by his own wrong. A man who has fraudulently executed and put in currency a mortgage upon his homestead, without procuring his wife to join therein, can not, in an action to foreclose the instrument, after her death, gain any advantage by his own wrong, unless he can make it appear that such advantage will accrue, at least in part, to some one, other than himself, belonging to some of the classes of persons sought to be protected by the homestead act.</p>

<p>Error to the district court for Platte county: James A. Grimison, Judge.</p>

<p>1. Insurance Certificate: Action: Venue. An action upon a benefit certificate or insurance policy is transitory and not local in its nature, and may be brought in whatever state the company issuing tbe policy can be found, without a'ny regard to where the contract of insurance was made or the subject thereof was located.</p> <p>2. Appearance. The appearance of a defendant, for the sole purpose of objection by motion to the jurisdiction of the court over his person, is not an appearance to the action; but, where the motion also challenges the jurisdiction of the court over the subject matter of the controversy and is not well founded, it is a voluntary appearance equivalent to a service of summons.</p> <p>Appearance: JukispictioN. An appearance for the purpose of objecting to the jurisdiction of the court of the subject matter of the action, whether by motion or formal pleading, is a waiver of all objections to the jurisdiction of the court over the person of defendant, whether the defendant intended such waiver or not.</p>

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

<p>1. Venue: Summons to Another County. In a personal action for the recovery of money only, where a resident of the county where the action is brought is joined with a resident of another county, to authorize service upon the latter in the county of his residence there must be an actual right to recover against the defendants jointly.</p> <p>2. Jurisdiction: Joint Liability. Where the allegations of the petition in a case of that character are such as to include both a joint and several liability against the defendant, the jurisdiction of the court as to the nonresident on his several liability, is sufficiently challenged by a plea to the jurisdiction, setting forth the fact of his residence in another county, and the service of process upon him therein, and upon the return of a verdict which negatives a joint liability, he is entitled to a dismissal.</p> <p>3. Parties: Instruction. In an action for false and fraudulent representations in the sale of property, where a copartnership and the alleged members thereof are made defendants, and the relationship of the other defendants to such copartnership is put in issue, it is error for the court to instruct on the theory that the individual members of the copartnership are the only parties defendant.</p> <p>4. Sale: Representations. Ordinarily, where a vendee has an opportunity for inspection, representations by the vendor, as to the value of the property, are regarded as mere expressions of opinion, and afford no basis for an action of fraud and deceit.</p> <p>5. -: Fraud. But where such representations are based on special knowledge of the vendor, which he obtained or pretends to have obtained, by handling the property or invoicing it, and are believed by the vendee, and acted upon by him to his injury, they amount to actionable fraud.</p>

<p>Partition: Statement oe Account. Where an action i'n partition involves an accounting of transactions "bet-ween the parties extending over a long series of years, it is the duty of the trial court, by himself or a referee, to state the account, giving the items or classes of items and sums credited and charged to the respective pax-ties, and the facts, in his opinion, affording a reason therefor, / so that this court may form a judgment as to whether the conclusion reached is justified by the law and the evidence.</p>

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

<p>Error to tlie district court for Douglas county: Willard W. Slabatjgh, Judge.</p>

<p>1. Contract for Sale of Land: Validity. Under the provisions of section 74, chapter 73, Compiled Statutes, 1901, a contract for the sale of land between the owner thereof and an agent or broker must be signed by the owner and broker, must contain a description of the land, and set forth the amount of compensation the agent is to receive for negotiating a sale, or it will be void and furnish no basis for recovery.</p> <p>2. Petition: Stoteiciency. Petition examined, and held not to state facts sufficient to entitle plaintiff to any relief.</p>

<p>1. Equity Court: Poweks. When a court of equity has taken cognizance of a case involving the right of rival claimants to the possession of leased premises, with all parties interested in the premises in court, it has full power to do equity by placing the party whom it finds entitled thereto into possession of the premises.</p> <p>2. Findings: Review. Findings of fact made in a case tried to a court are entitled to the same weight as a verdict of a jury, and a judgment inconsistent with and contrary to the findings will be reversed.</p>

<p>Error to the district court for Cuming county: Jambs F. Boyd, Judge.</p>

<p>1. Foreign Insurance Companies. The state may impose on a foreign .corporation, as a condition of coming into and doing business within its territory, any terms, conditions and restrictions it may think proper, not repugnant to fundamental laws.</p> <p>2. -: License Tax: Constitutional Law. The provision of section 33, chapter 43, Compiled Statutes, entitled “An act regulating insurance companies,” passed in 1873, declaring that, whenever the laws of another state shall require of insurance companies Incorporated in this state the payment of taxes and license fees, or otherwise, greater than the amount required for such purposes from similar companies of other states hy the then existing laws of this state, then all insurance companies of such states shall be required to pay for taxes and license fees an amount equal to the amount of such charges and payments imposed upon or required by the laws of such state of the companies of this state, is a valid exercise of legislative power in no way inhibited by the fundamental law of the state or of the nation.</p> <p>3. Reciprocal Tax. The imposition of the reciprocal tax and license fees provided by said section 33 is a privilege or license ta,x imposed as one of the conditions upon which a company, subject to such, tax or imposition, is admitted into this state, to engage in business herein.</p> <p>4. Constitutional Law. The fact that the exaction may not be demanded in advance, and as a condition precedent to the entrance of the company into the state to do business, does not change or qualify the principle justifying the levying of such tax as one of the conditions for engaging in business in the state; and the laying of such burdens and the imposition of such tax and license fees in no way violates the provisions of section 1, article IX of our constitution.</p> <p>5. -: Foreign Corporations. The fact that the exactions provided by said section 33 are required only of those companies having their domicile in other states, the laws of which discriminate against outside companies, is neither arbitrary nor unreasonable classification, and does not contravene the second clause of said section of the constitution.</p> <p>6. Statutes: Repeal by Implication. While repeals by implication are not favored, yet, where the later statute contains matter so repugnant to the earlier that both can not stand, the provisions of the earlier law must fall to the ground, and be deemed to have been repealed by implication by the later act.</p> <p>7.-: -. When the legislature in the later act refers especially to a former act, and excepts from the operation of the last act a portion of the former, the inference is warrantable that there was an intention to repeal by implication inconsistent and repugnant provisions of the earlier statute not embraced within the terms of the exception clause.</p> <p>8.-: Construction. Where the words of a statute are so plain, specific, and unambiguous as to admit of no other construction, the meaning which the words import must be held conclusively presumed to he the meaning which the legislature intended.</p> <p>9. Taxation: Constitutional Law. The provision of section 38, article I, chapter 77, Compiled Statutes, 1901, exempting insurance companies from all taxation save as therein expressed, is, in so far as it purports to exempt persona] property of insurance companies from taxation, a violation of section 1, article IX of the constitution, and as to the taxation of such property is of no force and effect.</p> <p>10. Repugnancy. Ordinarily, a statute repugnant in some of its features to some constitutional provision will yield only to the extent, of the repugnancy and no further.</p> <p>11. Statutes: Validity. Where the act eliminating (.he unconstitutional feature is complete in all respects, and capable, of enforcement, it will be held valid ahd enforceable, except where the invalid portion was manifestly an inducement to the passage of the remainder.</p> <p>12. -: Repeal by Implication. Section 38, chapter 77 of the revenue act of 1879, as amended in 1887, being repugnant and inconsistent with the reciprocal t.a,x feature of section 33, chapter 43, passed in 1873, to the extent of such repugnancy a'nd inconsistency, repeals the latter mentioned section by implication.</p> <p>1. Statute: Validity. Where a part of an act is unconstitutional, because contravening some provision of the fundamental law, the language found in the invalid portion of the act can have no legal force or efficacy for any purpose whatever. 2.-: Repeal by Implication. That part of the revenue act (Compiled Statutes 1901, ch. 77, art. I, sec. 38), providing “Insurance companies shall he subject to no other tax, fees, or licenses under the laws of this state, except taxes on real estate and the fees: imposed by section 32 of an act regulating insurance companies, passed February 25, 1873,” being unconstitutional because attempting to exempt insurance companies from the payment of taxes on personal property, is void and of no effect for any purpose, and can not, therefore, operate as a repeal by implication of the provisions of section 33, chapter 43, Compiled Statutes, or any portion thereof.</p> <p>3. Insurance Companies: Taxation. The fact that a less reserve fund is required of domestic companies organized under the laws of this state, than is required of all companies doing business in the state of Pennsylvania under its laws, does not militate against the enforcement of the provisions of ■ the reciprocal tax law on companies organized under the laws of Pennsylvania, and doing business in this state, such reciprocal tax law being otherwise applicable and enforceable.</p> <p>4. Reciprocal Tax Law. The provisions of said section 33, chapter 43, Compiled Statutes, for a reciprocal tax on insurance companies organized under the laws of other states, whose laws discriminate against insurance companies organized under the laws of the state of Nebraska, apply and become operative from the time of the enactment of such laws by such other states requiring companies of this state to make deposits, or pay fines, taxes, penalties or license fees not required of all other companies, whether any company of this state shall have established agencies there or not. „</p> <p>5.-■. The act mentioned is in force and effect, and requires a foreign insurance company doing business in this state to pay the same license fees, etc., required by the laws of the foreign state of companies of this state doing business therein, whenever the existing or future law of such other state shall require companies of this state to pay license fees, etc., for the privilege of doing an insurance business therein.</p> <p>The judgment heretofore entered in this cause adhered to.</p> <p>1. Courts: Construction or Federar Constitution. The state courts are bound by the decisions of the United States supreme court regarding the proper construction of a clause of the federal constitution and its application to the question involved in the liti-' gation. 2. Insurance*. Interstate Commerce. The business of insurance is not commerce, a'nd the making of a contract of insurance is a mere ifieident of commercial intercourse in which there is no difference whatever between insurance against fire, insurance against the perils of the sea, or insurance of life. New York Ins. Go. v. Cravens, 178 U. S. 389.</p>

<p>1. Taxation. Constitutional Law. The sale of real estate for the payment of delinquent taxes, under the provisions of chapter 75 of the laws of 1903, entitled “An act to enforce the payment and collection of delinquent taxes and special assessments on real property,” does not deprive the owner of his property without due process of law.</p> <p>2. Tax Sale: County as Purchaser. Lands purchased hy the county, under the provisions of this act, are held in trust for itself, the state, and all other political subdivisions entitled to any portion of such delinquent taxes. Such lands are not acquired by the state by escheat or forfeiture, and do not belong to the permanent school fund.</p> <p>3. Constitutional Law: Jury. The proceeding provided for by this act is a suit in equity in the district court, and the’owner of real estate in question therein, has 'no constitutional right to a jury trial.</p> <p>4. -: Release op Taxes. The sale of lands in such proceedings for what they will bring, though less than the amount of the deere'e for the taxes due and delinquent, is not a release or commutation of taxes, within the meaning of section 4, article IX of the constitution.</p> <p>5. -: Statutes. The act is not vulnerable to the objection that its provisions are broader than its title; it is complete in itself, capable of enforcement, and is not open to the objection that it is amendatory of other laws.</p> <p>6. -: Delegation of Legislative Authority. The law provides for one of two methods of collecting delinquent taxes on real estate, and permits the county board to choose which method it will pursue. This does not amouht to a delegation of legislative authority.</p> <p>7. Cumulative Remedy. The remedy provided for is declared hy the act itself to be cumulative, and therefore it is not in conflict with, nor does it take away any other remedy provided hy statute.</p> <p>8. Act Constitutional. Held, That the act in question is not in conflict with any of the provisions of the constitution so as to invalidate it, and is a constitutional exercise of legislative power.</p>

<p>1. Intoxicating' Liquors: Bonds: I-itaiuoty. Persons engaged in selling intoxicating liquors under license in this state "are jointly and severally liable for all damages. arising from such traffic, to the cause of which they have contributed, and such liability extends to the sureties upon their bonds.</p> <p>2. Action: Parties: YeaUe. All sucli persons and sureties may be joined as defendants in a single action to recover damages and, if a part of them do not reside, or can not be found, in the county in which the action is brought, summons may be served upon them elsewhere.</p> <p>3. Bonds: Sureties. A brewing corporation may become liable as surety upon 'a liquor license bond, executed by it to induce the licensee to lease a building from it and deal exclusively in its products.</p> <p>1. Intoxicating Liquors: Action: Partirs. Where different retail dealers in intoxicating liquors contribute by the sale of liquor to the intoxication of an individual which causes his death, such dealers and the sureties on their bonds, which are required by the statutes, may all be joined as defendants in one action, to recover for loss of the means of support by those who have suffered injury by reason of the death of such individual.</p> <p>2. Pleadings. Where the plea of ultra vires is interposed by a defendant corporation in its answer, facts not inconsistent with the allegations of the petition may be pleaded' in the reply, in the nature of an estoppel or to show that the corporation was, under the circumstances, empowered to enter into the contract, the obligation of which is sought to be avoided.</p> <p>3. Bond: CORPORATION as Surety. A brewing corporation, incorporated to do a general business of manufacture and sale of intox-cating liquors, and to erect suitable buildings for the carrying-on of the business, to buy, sell, lease, rent, exchange or otherwise handle real estate, and the execution of deeds, leases, bonds, mortgages, etc., as may he proper in connection with its business, may become obligated as surety on a liquor bond of a licensed dealer, required to he given under the law regulating the sale of intoxicating liquors, where it appears that such undertaking is given with a view of renting its real estate and building in which the business is conducted, and to procure the sale of its products through such licensee.</p> <p>i. Evidence. Evidence tending to prove that the minor sons of the deceased were required to devote all their time to the support of themselves and the family, of which they were a part, and were unable to attend the public schools, held, properly admissible, in response to evidence on the part of the defendants tending to show that no pecuniary loss had been sustained by those claiming a right to recover for loss of support by reason of the death of the husband and father.</p> <p>5. -. Other evidence as to the payment of the debts of the deceased from the proceeds of the products raised on the farm, held not erroneously admitted.</p> <p>6. Expert Testimony. Expert evidence is permitted where the facts under investigation are such that the witness is supposed, from his experience, skill and study, to have peculiar knowledge upon the subject of inquiry, which jurors generally do not possess.</p> <p>7. Carlisle Table. The Carlisle table of mortality or life expectancy is properly admissible in evidence for the consideration of the jury in determining the probable duration of the life of the deceased, the proper foundation as to age and general health being first proved.</p> <p>S. Declarations: Res Gesmí. Declarations, to be admissible as a part of the res gestip, must accompany and be so connected as to be a part of the fact or transaction in controversy, and must tend to illustrate or explain it, such fact or transaction itself also being admissible in evidence.</p> <p>9. Errors: Review. Where there are numerous assignments of error, the reviewing court will consider and discuss such of them only as appear to be essential to a proper disposition of the cause under review, and to finally determine the matters involved in the litigation. The fact that all assignments of error are not noticed and Commented upon in the opinion, does not imply that they have not been considered and given due weight in arriving at a decision.</p>

<p>Burden of Proof. The burden-of sustaining the affirmative of an issue involved in an action, does not shift during the progress of the trial, but is upon the party alleging the facts constituting the issue, and remains there until the end.</p> <p>1. Reaffirmed: Burden oe Peooe. On rehearing former decision adhered to.</p> <p>2. Cases Disapproved. The cases of Chicago, B. & Q. R. Co. v. Feath-erly, 64 Neb. 323, and New Omaha Thompson-Houston Electric Light Co. v. Rombold, 68 Neb. 54, 71,‘ disapproved in so far as opposed to the doctrine in this case.</p>

<p>1. Animals: Users of Highways. Act of February 25, laws 1875, page 190, entitled “An act to restrain sheep, and swine from running at large in the state of Nebraska,” held to have no relation to the protection of users of highways against unconfined hogs.</p> <p>2. Hogs on Highways: Owner’s Liability. One whose sole fault is the permitting of young hogs of 60 to 100 pounds weight to go at large upon his own premises, so that they wander across the highway to a neighbor’s cornfield, and in running back frighten a passer’s horse, held not liable for injuries to the passer’s equipage and person produced by such fright.</p>

<p>Real Estate Broker: Action. Services as a real estate/broker rendered for the owner of the land, without a written contract, can not be recovered for, as such, upon a quantum meruit.</p>

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

<p>1. Supplying Records. The supplying of missing records is a matter resting in the sound discretion of a court and, unless it is ahused, its exercise will not he interfered with.</p> <p>2. County Board: Allowance oe Claim oe Agricultural Society: Review. The application of an agricultural society for assistance from the county funds is a claim, and an appeal from its allowance by a taxpayer will lie to reexamine the facts as to the organization and competency of the society. No reexamination as to the public interest in assisting such a society is permissible.</p>

<p>Error to- tlie district court for Otoe county: Lee S. Estelle, Judge.</p>

<p>Appeal from the district court for Gage county: Charles B. Letton, Judge.</p>

<p>1. Trusts: Statute of Frauds. One who, by agreement, purchases land at a foreclosure sale for the benefit of the owner of the eguity of redemption, at a price greatly below its value, can not set up the statute of frauds against the party for whom he purchased; the law will hold him to be a trustee ex maleficio; a court of eguity will not permit the statute of frauds to be made an instrument of fraud. Ryan v. Dox, 34 N. Y. 307, and cases there cited.</p> <p>2. Deed as Mortgage: Parol Evidence. Where a party acquires the legal title by purchase of land at a sheriff’s sale, in pursuance of a parol agreement with a judgment debtor that he is to hold the title thus obtained as a security for the loan of the money paid to relieve the land from the judgment lien, and that he will reconvey when the money is refunded, the case is not distinguishable from any other, where the deed though absolute in terms was designed simply as security for a loan; and parol evidence is admissible to show the transaction to be of that character. Iieigarcl v. McNeil, 38 Ill. 400.</p> <p>3. Contract: Mutuality. Want of mutuality is no defense, even in an action for specific performance, where the party not bound thereby has performed all of the conditions of the contract and brought himself clearly within its terms. Bigler v. Baker, 40 Neb. 325.</p> <p>4. Action to Redeem: Limitations. The right to foreclose and the right to redeem are reciprocal; and an action to redeem may be brought at any time before the statutory bar of ten years is complete. Morrow v. Jones, 41 Neb. 867.</p> <p>5. Interest. The rule is well established that interest on a debt is computed up to the time of the first payment, and the payment so made is first applied to discharge the interest, and afterwards, if there be a surplus, such surplus is applied to sink the principal, and so toties quoties taking care that the principal thus reduced shall not at any time be suffered to accumulate by the accruing interest. Mills v. Saunders, 4 Neb. 190, followed and apinoved.</p>

<p>1. County Officers: Contracts. Section 51, article I, chapter 18, Compiled Statutes, which prohibits county officers from being pecuniarily interested in or receiving the benefit of any contract executed by the county for the furnishing of supplies or any other purpose, is general in its nature, and applies to all county officers and to every class of contracts.</p> <p>2. - — : Action. A contract between a county and one of its officers, whereby such officer undertakes to perform extra-official services, for which the county undertakes to pay him compensation in addition to the fees or salary allowed by law, is in violation of said section and will not support an action for such extra compensation. Shepard, v. Easterling, 61 Neb. 882, contra, overruled.</p>

<p>1. Dower and Homestead: County Couet: Jurisdiction. When, a widow is entitled to dower and homestead in lands of which her husband died seized, and the facts upon which her right of homestead and dower depend are not in dispute, the county court of the county in which the estate of the husband is settled has jurisdiction to assign such dower and homestead.</p> <p>2. -. In order to oust the county court of such jurisdiction, the right of the widow must he disputed by presenting an issue of fact, which if established by proof would defeat her claim of dower or homestead, and such issue must be one which the county court .-by its organization is unable to try. Following Guthman v. Quthman, 18 Neb. 98; Berry v. Ourry, 26 Neb. 353.</p> <p>3. Extent of Homestead. In a contest between the widow and the heirs at law as to the extent of her homestead in suburban lands, she is entitled to a homestead not exceeding 160 acres in area and $2,000 in value. t</p>

<p>ERROR to the district court for Pawnee county: John S. Stull, Judge.</p>

<p>1. Appeal: Reversal. Where, upon appeal of a suit in equity, the decree of the trial court in favor of the plaintiff is reversed and the cause remanded for further proceedings upon amended pleadings, nothing has become res judicata, or the “law oi the case” binding on the trial court, except that the pleadings and evidence on the first appeal did Hot authorize the decree.</p> <p>2. Appurtenances. The ruling made on the former appeal, that, “Where a mill is erected and a water-power obtained by the aid and cooperation of adjoining landowners, any right of flowage over their premises of water for the mill arranged for. and contemplated by the owners, as subscribers toward its construction, becomes appurtenant to the mill,” reannounced.</p> <p>3. Easement: Parol Agreement. If one owning land traversed by a stream sells a portion thereof to another, and at the same time gives such other person by parol the right to overflow the remainder of the land by erecting a dam on the land so conveyed, and the purchaser, relying on such parol agreement, erects such dam and a mill operated by water, and maintains the same, the parol agreement becomes enforceable. If viewed as a license, the acts of the purchaser render the license irrevocable. If viewed as an easement, they take the grant out of the statute of frauds. Newcomb v. Itoyce, 42 Neb. 323, followed.</p> <p>4. Conveyance: Consideration. The above rule applies as well where the mill site is conveyed in consideration of the erection of the mill, as where other consideration is paid therefor, and where the privileges given consist of other beneficial rights necessary to the use of the mill.</p> <p>5. Mortgage Foreclosure: Sheriff's Deed: Easements. Where a sheriff’s deed, made as the result of foreclosure of a mortgage, properly conveys realty consisting of mill property together with Jie appurtenances thereto belonging, the easements appurtenant to the mill property and necessary to its use and enjoyment, owned and used by the mortgagor in connection therewith at the time of the foreclosure, pass as appurtenances to the mill property.</p> <p>6. Lease: Statute of Limitations. Where, after conveyance of such property by sheriff’s deed, the premises are leased by the purchaser to the mortgagor, possession of any portion of the property or its appurtenances, derived by third persons from the tenant, will not stop the running of the statute of limitations in favor of the lessor’s title.</p> <p>7. Review: Decree. Record examined, and held, to authorize the decree except as modified herein.</p> <p>8. Easement: Rights of Owner. An easement consisting of the right to maintain a mill-pond upon the land of another, does not deprive the owner of the land of any use thereof which does not interfere with the enjoyment of the easement.</p>

<p>Appeal from the district court for Seward county: Samuel H. Sornburger, Judge.</p>

<p>1. Attachment Lien: Creditors’ Suit. The lien acquired by attachment or garnishment is not lost by taking a general money judgment against the defendant without an order for the sale of the attached property, where the creditor has used due diligence in the prosecution of a creditor’s bill.</p> <p>2. -■: —.—•: Execution. A creditor by the levy of attachment upon land acquires a specific lien sufficient to support a suit in the nature of a creditor’s bill to remove obstructions from the title calculated to make a sale unprofitable, and in such case the issuance of an execution and return nulla hona is not a preliminary prerequisite.</p> <p>3. -: -: Dormant Judgment. Where a creditor has.acquired a specific lien by the levy of an attachment, he is entitled to maintain a creditor’s bill to remove obstructions to a sale of the premises, without reference to whether the judgment at law has, during the pendency of- such creditor’s suit, become dormant.</p> <p>4. Action Against Heirs: Parties. Under the decedent law of this state, a nonresident who claims a life interest in lands located in this state, by virtue of a will which has never been probated in the courts of this state, is not a necessary party to a suit against the heirs at law of the decedent to subject the land to payment of the claims of creditors.</p> <p>5. Evidence. Evidence examined, and found sufficient to sustain the finding and decree of the trial court.</p>

<p>1. Jurisdiction: Affidavits: Bill of Exceptions. The affidavits upon which a justice of the peace decides an objection to his jurisdiction over the person of the defendant can not, on error to the district court, he reviewed, unless incorporated in a hill of exceptions duly settled-, signed and allowed by the justice, in conformity with the provisions of section 311 of the code, as amended by chapter 72, laws 1895.</p> <p>2. Review: Affirmance. Upon error from a judgment of a justice of the peace to the district court, if error does not affirmatively appear in the proceedings had before the justice, the judgment of the justice should be affirmed.</p>

<p>1. Criminal Law: Erroneous Sentence: Duty of Appellate Court. Where a prisoner has been found guilty on a criminal charge, and the only error that appears on the record is the failure of the court to pronounce a legal judgment against him, it is the proper practice, and this court has the power, after setting aside the void or erroneous judgment, to remand the case and the accused, if sentence has not been suspended, to the district court, with instructions to render judgment on the verdict in the manner provided by law.</p> <p>2. Erroneous Sentence: Constitutional Law. Confinement in the penitentiary under a void or erroneous sentence, because of the failure of the accused to obtain a suspension of his sentence during the pendency of his proceedings in error, is in no sense a part execution of a legal sentence; and by the rendition and execution of a legal judgment, the accused is not twice punished for the same offense.</p> <p>3.-: Powers oe Courts. An ineffectual attempt of the district court to render a judgment on a verdict according to the provisions of the law, does not deprive that court of the power to pronounce a valid judgment against the accused.</p>

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

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

<p>Appeal from the district court for Thayer county: G-kobge W. Stubbs, Judge.</p>

<p>1. Antenuptial Agreements. While antenuptial agreements may essentially alter the interest which either the husband or wife takes in the property of the other, they can not vary the terms of the conjugal relation itself; they can not add to or take away the personal rights and duties of husband and wife.</p> <p>2. -. An antenuptial agreement by a man about to be married, that, after marriage, he will reside in a particular state, can not he enforced.</p> <p>3. Domicile. The general rule is that the domicile of the husband is the domicile of the wife.</p> <p>4. --. The wife is bound to follow her husband when he changes residence, if such change is made in good faith.</p> <p>5. Husband, and Wife: Support. When a wife, without just cause, refuses to live with her husband, he is not required to contribute to her support.</p> <p>6. Divorce and Alimony. When a wife, without cause, refuses to live with her husband, and the evidence shows that she did not assist in or contribute to the accumulation of any of his property, but that it was all accumulated by him prior to their marriage,' the husband, on obtaining a divorce on the ground of desertion, will not be required to pay alimony.</p> <p>7. Evidence. Evidence examined, and held to fully sustain the findings and judgment of the trial court.</p>

<p>Error to the district court for Douglas county: Guy E. C. Bead, Judge.</p>

<p>1. Statute: Elevators. An elevator is a storehouse within, the meaning of section 39, article I, chapter 77, Compiled Statutes, 1899.</p> <p>2. -: Construction. The phrase “outside of said right of way,” etc., in the proviso to said section qualifies only the word “property” immediately preceding it, and not the specific terms used in the enumeration of other classes of property therein.</p> <p>3. Elevators: Assessment. By virtue of such proviso, elevators situate on the right of way of a railroad are subject to assessment by the local authorities, and not by the state board; and that they may be necessary for the successful operation of the road is immaterial.</p> <p>4. -: -. The owner of such elevators can not escape local assessment thereon, and taxes levied in pursuance thereof, by voluntarily listing and returning them for taxation to the auditor of public accounts, and the payment of the taxes levied by the state board.</p>

<p>1. Accretions. Where the. water of a river gradually recedes, changing the channel of the stream and leaving the land dry which was theretofore covered hy water, such land belongs to the riparian proprietor.</p> <p>2. -■ — . Where, at the time of a grant from the United States, the hank of a river formed a part of the boundary of the grant, subsequent accretions formed by the gradual recession of such bank attached to and became a part of the grant.</p> <p>3. -: Subsequent Conveyances. A subsequent conveyance by such grantee, without describing such lands by metes and bounds, but by the number or numbers by which the same are designated in the government survey, passes the title, not only to the land originally constituting the grant from the United States* but to the accretions thereto.</p> <p>4. Adverse Possession. No title by adverse possession can be acquired against the state or general government, nor is land the subject of adverse possession while the title is in the state.</p>

<p>Appeal from the district court for Greeley county: John E. Thompson, Judge.</p>

<p>Error to the district court for Douglas county: Wil-eard W. Seabaugh, Judge.</p>

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

<p>Error to the district court for Lancaster county: Edward P. Holmes, Judge.</p>

<p>Corporation: Receiver: Parties: Liens:. Priorities. A corporation issued Bonds in the sum of $35,000, to secure which it executed a mortgage in the name of a trustee. Bonds to the extent of $17,000 were disposed of, the proceeds being applied to the satisfaction of the corporation’s indebtedness. Subsequently, a stockholder on behalf of himself and all the other stockholders made application to the court for the appointment of a receiver, no notice of such application being served upon either the trustee or any of the bondholders, who were 'not made parties to the proceedings. Held, That the receiver’s certificates issued for expenses incident to the receivership were not a lien superior to that of the mortgage.</p> <p>1. Petition: Sufiítciency. The question of whether a petition states a cause of action may he raised at any stage of the proceedings, up to the submission of the cause in this court upon appeal.</p> <p>2. ^Receiver: Appointment. The appointment of a receiver in an equitable action is ordinarily an an cilio ry remedy, provisional in character, and incidental to the main object or purpose of the suit. Vila v. Grand Island Electric Light, Ice <& Cold Storage Go., 68 Neb. 233, followed.</p> <p>3. Petition Insufficient. Petition iñ case at bar examined, and held not to state facts sufficient to authorize the court to appoint a receiver to care for, preserve and manage the property of the defendant corporation.</p>

<p>Original application for a writ of mandamus to compel respondent to furnish facilities for shipping grain.</p>

<p>1. Master and Servant: Appliances. A master is bound to use such . care as the circumstances reasonably demand to see that appliances furnished his servants for use in his business are reasonably safe. He is not liable for defects, of which he has no notice, unless the exercise of ordinary care would have resulted in ■notice.</p> <p>2. Error: Instructions. Instructions examined, and held, under the facts in this ease, to be erroneous and prejudicial to the defendant.</p>

<p>Pleadings: Amendments: Statute oe Limitations. Where the original petition, in an action for conversion against a bailee for sale, was defective for lack of the allegation that a reasonable time had elapsed within which he might sell the property, before demand for its return was made, the filing of an amended petition, by which such allegation was inserted, held not to be the commencement of a new action, so as to permit the statute of limitations to interpose as a bar between the filing of the original petition and the amendment.</p> <p>Pleadings: Cause op Action. Pleadings examined, and held that the amended petition does not state a new and different cause of action from that attempted to be stated in the bill of particulars and the original petition.</p>

<p>Affirmed. On rehearing, the former judgment entered i'n this court is vacated, and the judgment rendered by the district court for Clay county is affirmed. Mitchell v. Olay Oounty, 69 Neb. 779, followed.</p>

<p>Liquor License: Petition: Freeholder. A wife, living with her husband on land, the title to which is in the latter and which is occupied hy them jointly as a family homestead, is not, hy reason thereof, a freeholder within the meaning of section 25, chapter 50, Compiled Statutes, regulating the sale of intoxicating liquors. The same is true as to a husband, living with his wife on land, occupied hy them jointly as a homestead, the legal title to which is in her.</p>

<p>1. Beneficial Associations: Unlawful Acts: Injunction. When a fraternal beneficial association refuses and neglects to report to the auditor as required by law, or shall exceed its powers, or conduct its business fraudulently, or fail to comply with any of the provisions of the statute, it is the duty of the auditor to-notify the attorney general in writing, and the duty of the attorney general to immediately commence an action against such society to enjoin the same from carrying on any business.</p> <p>2. Suspension of Business. When, i'n such action, it appears that any of said causes exist, the court must enjoin the defendant from transacting business until such report shall be made, or overt act or violation complained of shall have been corrected, and costs are paid by the defendant.</p> <p>3. Reinstatement. When such report shall he made, or overt act or violation complained of shall have, been corrected, and costs are paid, it is the duty of the auditor to reinstate such defendant, and the society will then he authorized to continue its business.</p> <p>4. Government. A fraternal beneficial association must have a representative form of government. This requires that the directors or other officers, who have general charge and control of the property and business of the society and the management of its affairs, shall be chosen by the members.</p> <p>5. Diverting Funds. Diverting the funds of the society from the purposes for which they are contributed is a violation of . the. statute and will be enjoined.</p> <p>6. Annual Reports. All claims for death losses must be included in the annual reports to the auditor. A failure to make such report as the statute requires is sufficient cause for enjoining the society from transacting business.</p> <p>7. Incorrect Records and Reports. The books and records of such society must show the true condition of its business and finances, including its benefit assessments and its liabilities, and if they fail to do so, or if the society fails to report to the auditor the details of its business and financial affairs required by the statute, the society will be enjoined from doing business.</p> <p>8. Age Limit and Medical Examinations: Merger. Such societies are not allowed to take members who are above the age limit, nor without medical examination, and to do this indirectly by the purchase of the business and risks of another similar society, and consolidating such society with itself, is a violation of law.</p> <p>9. Assets: Solvency. The assets of such a society do not consist in cash, and tangible securities and property alone. If its plan of business is feasible and just, it may rely upon the good faith and solvency of its members. It can not be said to be insolvent when it is reasonably probable that, by its authorized assessments, it can provide sufficient funds to meet its just liabilities.</p> <p>10. Pleadings and Evidence: Receiver: Injunction. Under the pleadings and evidence in this case, it is held, that it is not a . case for the appointment of a receiver and winding up the affairs of the society; but, to secure a correction of abuses and irregularities, the defendant is enjoined, under section 16, chapter 47 of the laws of 1897, from transacting business until the law is complied with in the matters specified.</p>

<p>1. Trial: Eebob. In order to predicate error on the fact that the father of a state’s witness was permitted, while she was testifying, to sit near her in the court room, it must affirmatively appear that his presence caused her, in giving her evidence, to deviate from the truth, or color her statements to the prejudice of the accused.</p> <p>2. Secondary Evidence. Where it is shown that a note and certain letters written by the accused to, and received by, a child alleged to have been enticed away from her parents by him, have been totally destroyed by her, at his request, and can not be restored or produced, and that she remembers their contents, she may be permitted to give oral evidence of what they contained.</p> <p>3. Instructions. Instructions examined, and held to have been properly given.</p> <p>4. Evidence. Record examined, and the evidence held sufficient to sustain the verdict.</p> <p>5. Sentence. Where a man of mature years, who is married and has a family of 7 children, is guilty of enticing a girl of 15 years of age away from her parents for an unlawful purpose and in vio- ■ lation of the provisions of section 20 of the criminal code, he being a minister of the gospel and she a member of his church, a sentence of 6 years in the penitentiary is not an excessive punishment for his crime.</p>

<p>1. Witness: Voluminous Accounts. Where a hook contains voluminous accounts or transactions, the examination of which could not conveniently take place in court, an accountant, who had made an examination of the hook, may testify as to the result of his computation therefrom, but not as to mere inferences.</p> <p>2. Drafts: Evidence of Payment. Where the question was whether certain drafts had been paid for when issued, an accountant, who had examined the books of the bank, was permitted to testify as to what the books showed in regard to that question: Held', error.</p> <p>3. -: Authority of Cashier of Bank. The general authority ot a cashier of a hank does not authorize him to issue drafts of the hank for himself or for his private use.</p> <p>4. -: Proof of Payment. When it appears that he has thus issued drafts, there is no presumption that they were paid for when issued, and the burden is on the party claiming they were thus paid for to prove it.</p>

<p>Error to the district court for Cuming county: Guy T. Grayer, Judge.</p>

<p>Erkor to the district court for Saunders county: Samuel H. Sornborger, Judge.</p>

<p>ERROR to the district court for Cass county: Paul Jessen, Judge.</p>

<p>1. Petition: Motion. In a suit against a county for damages on account of the death of a party caused by the giving way of a county bridge, the petition contained a general statement that the bridge was “out of repair and unsafe.” Held, That a motion for a more specific statement should be sustained.</p> <p>2. Counties: Death: Damages: Instructions. In such action, the jury, in assessing damages, are limited to giving pecuniary compensation for injuries resulting to the next of kin on account ot the death of the deceased. No damages can be given on account of the bereavement, mental suffering or as a solace on account of such death. An instruction relating to the measure of damages, which does not limit the assessment to the pecuniary injury sustained, is erroneous.</p> <p>3. -: Liability. The county can not be held as an insurer of those who have occasion to use a county bridge. If the defect in a bridge, from which injury and damages occur to the person using it, is a latent defect, not discernible from the ordinary tests and examinations usually made to ascertain its condition, and if those charged with such examination have not been negligent in their duty in that regard, the county can not be held liable for damages caused ■ by such latent and undiscovered defects.</p>

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

<p>Error to the district- court for Platte county: James A. G-rimison, Judge.</p>

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

<p>1. Divorce: Va catino Decree. The provisions of sections 602 of the code apply to divorce proceedings as well as to other proceedings in which it is sought, upon the grounds therein mentioned, to vacate or modify a decree or judgment after the term.</p> <p>2. Statute: Construction: Repeal by Implication. Repeals by implication are not favored, and a construction of a statute which, in effect, repeals another statute will not he adopted, unless such construction is made necessary hy the evident intent of the legislature.</p> <p>3. -: -. Sections 1 and 2, chapter 49, laws of 1885, held, to apply to the commencement of proceedings in the supreme court, and not to repeal section 602 of the code in its application to proceedings commenced in the district court to vacate a decree of divorce.</p> <p>4. Petition: Sufficiency. Petition for new trial under the provisions of section 602 examined, and held to state a cause of action.</p>

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

<p>1. Creditor’s Bill: Attachment: Jurisdiction. When a creditor’s bill is brought to set aside a cloud upon the title of property which has been seized in an attachment suit against a nonresident debtor, the court will looh at the entire record in the attachment case to see whether jurisdiction was obtained therein. If from all the affidavits the essential facts to confer jurisdiction appear, the judgment will not he declared void. The defect in one affidavit may be supplied by the other and, if enough appears from all, it is sufficient.</p> <p>2. Attachment: Pbooess: Judgment. A judgment rendered without substituted service on the defendant in an attachment case against a nonresident, whose property has been seized in this state, is merely erroneous and not void. Darnell v. Maelc, 46 Neb, 740, followed.</p> <p>3. -: -: -. If it appears that service of summons has actually been made upon the defendant and that the time given him by the summons to answer has elapsed before judgment, the fact that an error was made in the return day of the summons is merely an irregularity, which might have been taken advantage of by the defendant before judgment, but which does not render the judgment void.</p> <p>4. Deed: Record: Notice: Statute of Limitations. The recording of a fraudulent deed is not of itself, under all circumstances, sufficient to charge all parties with notice of the fraud. When accompanied with circumstances sufficient to put a person ol ordinary intelligence and prudence upon inquiry which, if pursued, would lead to the discovery of the fraud, the statute begins to run from the recording of the deed, but not otherwise. Forsyth v. Easterday, 63 Neb. 887, followed.</p>

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

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

<p>Error to the district court from Cherry county: Wii--jviam H. Westover, Judge.</p>

<p>Verdict: Evidence. Evidence examined, and found sufficient to sustain the verdict of the jury.</p>

<p>1. Insolvent Corporation: Attachments: Liability of Directors. Where, by an attachment proceedings, without any fraud or irregularity, certain bona fide creditors of an insolvent corporation secure the application of all of the corporate assets to the payment of their claims, the fact that the directors of the corporation who had guaranteed the payment of such claims requested, and thus induced, the creditors to institute the attachment suits, without giving the said creditors any advantage or rights, other than those which as a matter of law they already possessed, does not make such directors liable in an action at law to the other creditors of the corporation.</p> <p>2. Action in Tort. One is not liable in tort for procuring or inducing others to pursue a clear legal right, although such action may result to his advantage.</p> <p>3. Action at Law: Petition: Prater. In an action at law, a prayer for equitable relief is of no avail, unless the petition states faqts which will authorize the court to grant such relief.</p> <p>4. -: Creditors’ Bill. A single creditor can not maintain an action at law against a part of the stockholders of an insolvent corporation for a violation of the provisions of section 136, chapter 16 of the Compiled Statutes. Such action should be brought in equity, by the receiver if there be one, or by a creditor on his own behalf, and for all the other creditors similarly situated, against all of the stockholders of the corporation. '</p> <p>5. Judgment: Reversal. A plaintiff in error is not entitled to have a judgment of the district court reversed because the rights of a part of the defendants are not adjudicated, when no right of recovery exists in his favor against any of them.</p> <p>6. Misjoinder: Review. In such a case, the question as to whether there was a misjoinder of causes of action, or of parties, does not affect the plaintiff, when he is the only party complaining.</p>

<p>1. Evidence. Evidence examined, and held, sufficient to sustain the verdict.</p> <p>2. Burglary: Evidence. Where one is arrested for the crime oí burglary, evidence of what was found in his room at the time of his arrest, together with his conduct and statements on that occasion, is proper and competent as tending to show his consciousness of innocence or guilt, as the case may he.</p> <p>3. Evidence of Attempts to Escape. The attempts of the accused to escape, while confined in jail awaiting his trial, may be shown as an inculpatory circumstance properly to be considered by a jury, and to be given such weight as it seems fairly entitled to, with the other evidence introduced at the trial, in determining the question of his guilt or innocence.</p>

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

<p>1. Equity. Equity has jurisdiction to supply the omissions and defects of legal procedure, -vvhen necessary to accomplish the ends of the law and to the due administration of justice.</p> <p>2. Decedent’s Estate: Homestead: Sale. 'When a husband dies, the owner of a tract of land selected and occupied by himself and family as a homestead, but which exceeds the value of $2,000, and which is so situated that the dwelling house and the grounds upon which it stands, to the value of the homestead exemption, can not be set apart from the residue of the tract, the district court has jurisdiction, in equity, upon application of the administrator, to decree the sale of the whole tract for the payment of the debts of-the deceased, and to direct that, of the proceeds of the sale, $2,000 shall be invested at interest during the life of the widow, the interest and income thereof to be paid to' her for her own use until her death, and, upon the happening of that event, the principal to descend as in case of other such exemptions.</p> <p>3. • — ——: -. A homestead exemption is by the law of this state limited to the value of $2,000, and if, upon the death of a husband, the dwelling and the tract of land adjacent thereto, selected from his estate and occupied by himself and family as a homestead, exceeds that value and are so situated that the dwelling together with the grounds upon which it stands, and not exceeding that value, can not be set apart from the residue of the tract, no legal estate in tlie land, or in any part of it, passes to tie widow and heirs under the homestead act, but in lieu thereof an equitable interest to the value of $2,000 in the entire tract does pass to them thereunder.</p>

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

<p>Judicial Sale: Estoppel. A purchaser at a judicial sale oí lands offered subject to apparent liens, who malíes no attempt to have the priority, validity or amount of the latter otherwise adjudicated until after confirmation and conveyance, is estopped to impeach them.</p>

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

<p>Counties: Authority or County Attorney. A county is not bound to pay for legal services rendered at the instance of the county attorney, without the previous authorization or subsequent official ratification of the county board.</p>

<p>Error to the district court for Red Willow county: Robert C. Orr, .Judge.</p>

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

<p>1. Fraternal Insurance Certificates: Proceeds: Injunction. Under the provision of section 97, chapter 43, Compiled Statutes, the proceeds of a certificate of a fraternal benefit association are not, before payment to the person entitled thereto, liable for any debt of a certificate holder, or of any beneficiary named in such certificate.</p> <p>2. Equity: Trusts. A court of equity has jurisdiction to enjoin a trustee from the misappropriation of trust funds at the suit of a cestui que trust.</p>

<p>ERROR to tlie district court for Dawes county: William II. Westover, Judge.</p>

<p>1-. Verdict: Instructions. A verdict clearly contrary to the instructions of the court should he set aside.</p> <p>2. -: Evidence. Evidence examined, and held not to sustain the verdict.</p>

<p>1. Civil and Political Rights. A civil right is a right accorded to every member of a district, community or nation; a political right is one exercisable in the administration of government.</p> <p>2. Primary Election: Equity. A court of equity will not undertake to supervise the acts and management of a political party for the protection of a purely political right</p>

<p>Appeal from the district court for Hamilton county: Urnjamin F. Good, Judob.</p>

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