Volume 72 — Nebraska Reports

<p>Appeal from the district court for Dodge county: Conrad Hollenbeck, Judge.</p>

Original application for a writ of mandamus to compel the mayor, chief of police and board of fire .and police commissioners of the city of Omaha to enforce the provisions of the liquor law.

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

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

<p>Appeal from the district court for Dodge county: Conrad Hollenbeck, Judge.</p>

<p>1. Beview. Action of the trial court in the admission of evidence examined and approved.</p> <p>2. Instructions of the trial court examined, and held not prejudicial.</p> <p>3. Verdict. When the verdict of the jury is rendered on conflicting testimony, it will not be set aside, unless clearly against the weight of the evidence:</p>

<p>1. Judgment: Lien. A judgment of the district court is not a lien upon the judgment debtor’s equitable interest in real estate. NessXer v. Neher, 18 Neb. 649.</p> <p>2. Creditor’s Suit: Lien. The beginning of a creditor’s action gives a specific lien upon the property which it is sought to reach. It is of the nature of an equitable execution, and it is unnecessary to issue a legal execution upon the judgment during the pendency of the creditor’s action, in order to prevent the judgment from becoming dormant so far as that specific property is concerned.</p> <p>By the Court.</p> <p>Unofficial Opinions of Commissioners. The opinions of the commissioners of the supreme court, designated as “unofficial,” have no value as precedent or authority in the sense in which the doctrine of stare decisis is applied. The court has not necessarily approveu ail the propositions of law advanced as indicated either in the syllabi or in the opinions themselves.</p>

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

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

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

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

<p>1. New Trial: Criminal Case: Equity. A court of equity will not interfere for the purpose of granting a new trial in a criminal case on the ground of newly discovered evidence.</p> <p>2.-. The district court possesses no inherent or common law power to grant new trials in criminal cases, on the ground of newly discovered evidence, at a subsequent term to that at which a verdict of guilty was found.</p> <p>3.-- — . The authority and jurisdiction of the district courtb to grant new trials in criminal cases are derived from the statute, to which resort must be had in determining the extent of their powers regarding the subject.</p> <p>4. -. The provisions of sections 490-492 of the criminal code, regarding the granting of new trials in criminal cases on the ground of newly discovered evidence, are the exclusive source of power of the district court to grant such new trials.</p> <p>5. -. The provisions of section 318 of the code, authorizing the granting of new trials in civil actions at a subsequent term to that at which the judgment was x’endered, on the ground of newly discovered evidence, are not applicable to the granting of new trials in cximinal cases.</p>

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

<p>1. New Trial: Discretion. The matter of granting new trials is one of sound legal discretion, and, unless it appears that in granting a new- trial the court has been guilty of an abuse of discretion, its order in that behalf will he affirmed.</p> <p>2. -: Review. Where a second trial results in the same or a like verdict as the first one, error cannot be predicated on the order granting the new trial, because the party complaining cannot be said to have been injured thereby.</p> <p>3. Instructions. It is reversible error for the court, in its charge to the jury, to give undue prominence to a portion of the testimony by special reference thereto — to state to the jury what weight shall be given it, and comment on its strength or probative force.</p>

<p>1. Review: Prior Appeal. The supreme court ordinarily will not reexamine questions of law presented and determined on a prior 'appeal of the same cause.</p> <p>2. -: Law op the Case. Therefore our former holding in this case, that the American Loan & Trust Company was a banking institution, and that its stockholders have incurred the liability provided for by section 7, article 116 of the constitution, is adhered to.</p> <p>3. -: Second Trial. Where, on a new trial in the district court, the parties have introduced new evidence, together with that taken on the former trial, the supreme court, on a second appeal, will examine the record and evidence in order to determine controverted questions of fact.</p> <p>4. Res Judicata. A judgment in a prior suit will not be a bar to a subsequent action unless it is shown by the record, or by clear and satisfactory evidence, that the same issue presented in the subsequent action was involved in tbe prior suit, and that both actions are between the same parties or their privies.</p> <p>5.-: Rejected Petition. The overruling of a motion for leave to file a petition in the nature of intervention, by which it is sought to raise and litigate a question not theretofore in issue in the action, and a summary refusal to allow the petition exhibited and attached to the motion to be filed, is not res judicata of tha matters contained in the petition, so as to prevent the parties from litigating the same questions again in a regular form of action.</p> <p>6.-: Rulings. The same rule applies to the summary overruling of objections to the discharge of the receiver in a prior action.</p> <p>7. -: Evidence. Evidence examined, and held, that the proceedings in the action in the circuit court of the United States, pleaded as an estoppel against the plaintiffs herein, are not a bar to the prosecution of this action.</p>

<p>Appeal from the district- court for Lancaster county; Edward P. Holmes, Judge.</p>

<p>Counties; Bridge Repairs: Action: Defense. When a county has refused, upon request, to participate with an adjoining county in repairing a bridge over a stream forming part of the boundary line between them, and the latter county has performed the work at its separate expense, it is not a defense to an action for contribution under the statute, that the plaintiff county, in procuring the repairs to be made, proceeded in an irregular or illegal ihanner with respect to obligating itself to pay for them, provided it did in fact become so obligated.</p>

<p>Appeal from the district court for Box Butte county: Jabíes J. Harrington, Judge.</p>

<p>Sheriff: Action tor Damages. A plaintiff can not recover damages from a sheriff, on account of negligence by which an attempted ' levy of a writ was rendered ineffectual, if he has contributed to the result by his own negligence or by that of an attorney whom he has employed to supervise the procedure.</p>

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

<p>1. Drainage: Constitutional Law. The drainage and reclamation of large tracts of swamp and overflowed or submerged lands is a matter of general public utility and concern, for which the legislature may provide by the creation of local administrative organizations or political corporations.</p> <p>2. Assessments upon private property to defray the cost of local improvements are void if in excess of the benefits conferred, or if levied without notice to persons upon whose property they are imposed, or affording them an opportunity to be heard.</p>

<p>Original action to cancel municipal taxes.</p>

<p>Original action to cancel municipal taxes.</p>

<p>1. Infants: Negligence: Question fob Jury. No arbitrary rule can be established to fix the time at which a child, during its minority, may be declared wholly capable or incapable of understanding and avoiding dangers to be encountered upon railroad tracks. Ordinarily, such question is one of fact for the jury.</p> <p>2. Injury: Evidence. Where a freight train is stopped across a village street and sidewalk near the depot for the period of 20 or 30 minutes, and there is an opening of 2 feet between the hind car of the freight train and a stationary car on the side track, about 15 feet from the sidewalk, in an action for injuries sustained while passing through this opening, it is proper to show that plaintiff saw others crossing through this opening ahead of him, and that it was the custom of the railroad company, for a long time prior thereto, to make openings of a similar character ^through freight trains similarly situated, for the purpose of showing a license or invitation of the railroad company to the public to pass through this opening.</p> <p>3. Negligence: Question fob Juey. Where the hind car of a freight train projects over and across a public crossing, and remains in this condition for a period of 20 or 30 minutes, and a large number of people are at the depot, and, necessarily, pass around the rear end of the car in going to and from the depot, it is for the jury to determine whether it is actionable negligence for the railroad company to start its train with a backward motion, without giving a special warning before doing so.</p> <p>4. Evidence examined, and held sufficient to sustain the judgment of the trial court.</p>

<p>1. Insurance: Insurable Interest. If the holder of an interest in property will suffer loss by its destruction, he may indemnify himself therefrom by a contract of insurance. If, by the loss, the holder of the interest is deprived of the possession, enjoyment or profit of the property, or a security or lien resting thereon, or other certain benefits growing out of or depending upon it, he has an insurable interest. Following German Ins. Go. v. Hyman, 34 Neb. 704.</p> <p>2. Forfeiture: Waiver. When an insurance company issues its policy, and accepts and retains the premium, without requiring an application by the insured, and without malting inquiry as to the condition of the property or the state of its title, and the insured has, in fact, an insurable interest, the company will he conclusively presumed to have insured such interest, and to have waived all provisions in the policy providing for its forfeiture by reason of any facts or circumstances affecting the condition or title of the property in regard to which no such state-, ment was required or inquiry made. Following German Insurance & Savings Institution v. Kline, 44 Neb. 395.</p>

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

<p>Error to the district court for Scott’s Bluff county: Hanson M. Grimes, Judge.</p>

<p>1. Eminent Domain: Damages. The provisions of section 21, article X of the constitution, allow a person whose property has been taken for a highway, not only the fair market value of the land actually taken, but also such additional damages as accrue to the remainder of the tract by reason of the opening of the road.</p> <p>2. Highway: Damages. Where a highway is laid out by which a tract of land is divided into two parts, the depreciation in value, if any, of the entire tract, after deducting any special benefits which may accrue by reason of the opening of the road, is a proper element of damage.</p> <p>3.-: -■. The rights of the owner of land over which a section line extends are the same, with reference to the assessment of damages for the location of a highway thereon, as those of the owners of other real estate. The statute making all section lines public roads merely dispenses with the necessity of a petition and other formal proceedings before the county board is authorized to open the road.</p>

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

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

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

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

<p>Adverse Possession: Abandonment. One holding adverse possession of land which he has inclosed, does not abandon such possession by his failure to have it occupied by a tenant or otherwise for a reasonable space of time, no other person malting claim to the property or taking possession during such nonoccupation, and there being no evidence of any intent on his part to abandon his possession and claim to the land.</p>

<p>1. Decree: Intebpbetation. A decree wherein a party is directed to pay a specific fund in his hands into court for distribution among claimants thereto, will not - be held to be a lien upon the real estate of such party in favor of the claimants unless it is provided by the decree that the claimants recover of the party holding the fund, and that in default of payment execution may issue.</p> <p>2. -: -. Creditors of an insolvent debtor filed a bill against the debtor, joining with him as defendant a bank to whom the debtor was alleged to have made a fraudulent transfer of chattels, the object of the bill being to cancel the mortgage and subject the fund created by the sale of the chattels to their claims. The becree canceled the mortgage and ordered the bank to pay the fund into court. Held, that the decree did not constitute a lien on the real estate of the bank.</p>

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

<p>1. Mortgage: Attachment: Priority. Where a mortgagee claims a lien on real estate through a deed filed for record subsequent to the levy of an order of attachment on the same land as- the property of the grantor in such deed, the order of attachment and the return of the sheriff showing the levy being duly recorded in the office of the recorder of deeds before the recording of such deed, the mortgagee takes with notice of the rights of the attachment creditor and subject to such infirmities as inhere in the title of the mortgagor,</p> <p>, 2.-: -: —>-. A prior unrecorded deed passing title to real estate, if made in good faith and for a valuable consideration, will take precedence of an attachment or judgment, if such deed' be recorded before the deed based upon such attachment or judgment. Sarral v. Gray, 10 Neb. 186.</p> <p>3. Appeal: Teiae de Novo. Upon an appeal in equity this court will try the issue de novo, and will not be influenced in its decision by the findings of the trial court based upon depositions 'or other written evidence. The conclusions of the trial court, derived from the consideration of the evidence of witnesses examined in the presence of the court, will not be regarded, unless upou the whole record, in view of the position of the trial court in weighing such evidence, they appear to be right. Grandin v. First Nat. Banin, 70 Neb. 730.</p> <p>4. Evidence examined, and held that the deed through and under which the mortgagee claims a lien on the land in controversy was not delivered to the mortgagor until after the levy of the order of attachment, and that the mortgagee’s lien is subject to that acquired by the attachment creditor by virtue of the levy of such attachment.</p> <p>5. Reversal. The conclusions and decree of the trial court finding and holding to the contrary are reversed.</p>

<p>1. Criminal Law: Jury. In criminal trials the question of the qualification of a juryman is one of fact for the determination of the trial court, and, unless it appears to he against the weight of the evidence, it will not he overruled by this court.</p> <p>2. .New Trial. In capital cases a new trial should not be allowed on account of newly discovered evidence unless its introduction on the trial might have been beneficial to the defendant, and might have led to a different result. '</p> <p>3. Murder: Proof of Motive. Proof of a motive to commit the crime charged is always competent in murder trials; the fact that the alleged motive is out of proportion to the crime committed does not require that evidence of such motive be excluded. The supposed danger that the jury may give too much weight to the ottered evidence is not a legal ground for excluding it.</p> <p>4. Trial: Evidence. When a witness testifies positively to a conversation with an acquaintance over the telephone, an objection to the evidence on the ground that the witness has not sufficiently identified the person with whom the conversation was held should not be sustained, the witness’s knowledge of such identity not having been tested by cross-examination or otherwise. The force of the evidence is a question for the jury.</p> <p>5. Evidence: Use of Firearms. In the trial 'of a defendant charged with the crime of murder with firearms, it is not error to permit evidence that the defendant has for many years been familiar with the use of such firearms.</p> <p>6. -: Discretion.’ Under some circumstances it is in the discretion of the trial court to permit evidence of experiments to illustrate transactions that have been testified to; and, under the circumstances in this case, the court did not abuse its discretion in permitting such evidence..</p> <p>7. Harmless Error. If, in a criminal trial, evidence is received that is not from its nature necessarily injurious to the defendant, and the receiving of such evidence is not objected to when the same is offered, nor complained of in the petition in error in this court, the error, if any, will be considered to be without prejudice.</p> <p>8. Evidence. In a trial of an information for murder, it is proper to prove the ' physical conditions existing in the vicinity of the murder at the time the crime was committed. This applies to evidence of finding of unusual articles, as pepper and matches, upon the floors of the living-rooms of the house where the crime was committed.</p> <p>9. -. In murder trials, it is competent to prove the conduct, appearance and actions of the accused immediately after the crime was committed, as well as subsequent statements of the accused tending to show her connection with the transaction being investigated.</p> <p>10. Instruction. In criminal trials, the previous good character of the defendant has great weight as tending to show the improbability of guilt. The weight to be given such evidence is for the jury to determine. The court is not required to tell the jury that, if the other evidence is sufficient to satisfy the jury of the defendant’s guilt, they must still consider whether previous good character, when weighed with all the other facts and circumstances in the case, raises a reasonable doubt of guilt.</p> <p>11. -. It is not error to instruct the jury that the defendant is under no obligations to testify in her own behalf, and that the statute expressly declares that her neglect to testify shall not create any presumption against her.</p> <p>12. Trial: Motive. It is not indispensable in criminal trials that a motive be shown for the commission of the crime charged. If the evidence shows beyond a reasonable doubt that the defendant committed the crime, the prosecution does not necessarily fail because the real motive for the act cannot be discovered and shown to the jury.</p> <p>13. Instruction: Reasonable Doubt. An instruction that: “A doubt produced by an undue sensibility in the mind of any juror in view of the consequences of his verdict is not a reasonable doubt. And the juror is not allowed to create sources or materials of doubt by resorting to trivial or fanciful suppositions and remote conjectures as to a possible state of facts differing from those established by the evidence. You are not at liberty to disbelieve as jurors if, from all the evidence, you believe as men. Your oath imposes on you no obligation to doubt where no doubt would exist if no oath had been administered” — is not to be commended in all cases, but in view of the former decision of this court in Barney v. State, 49 Neb. 515, we cannot reverse the judgment in this case solely on the ground of giving this instruction.</p> <p>14. Circumstantial Evidence. When the evidence relied upon to establish the guilt of the defendant is circumstantial, the facts proved beyond a reasonable doubt must be such as to exclude every reasonable hypothesis inconsistent with the guilt of the defendant When the minds of reasonable men might fairly differ as to whether there is any reasonable doubt of the defendant’s guilt, the responsibility must be left, where the law places it, with the jury. The evidence in this case, under this rulé, supports the verdict and judgment.</p> <p>15. Evidence. In a prosecution for murder committed with firearms, evidence that the defendant had access to a weapon of that nature with which to commit the crime is important, but, if it appears that there was opportunity to conceal such weapon after the crime was committed, such evidence is not indispensable..</p>

<p>Error to the district court for Antelope county: John P. Boyd, Judge.</p>

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

<p>1. Appeal: Review. Where, on appeal from a judgment of the district court in a suit in equity, it is found that the evidence fully sustains the findings and judgment of the trial court, such findings will not be disturbed, but will be adopted by the court of review.</p> <p>2. Highways: Damages. Where one files a claim for damages caused by the location of a public road, and accepts the allowance made him by the county board, he cannot thereafter maintain an action against the county for damages caused by opening such road, unless the same be negligently and unskillfully constructed and maintained.</p> <p>3. Res Judicata. Where a plaintiff in an action for damages alleges facts, proof of which would entitle him to recover, and there is a verdict and judgment against him, it will be conclusively presumed that each of the facts so averred was determined against him, and he cannot thereafter maintain an action for equitable relief against the same defendant based on the same facts.</p>

<p>1. Larceny: Evidence. A record kept by a stock yards company of the receipt, handling and disposition of car or train loads of stock, copied from a book or tab of original entries and from hearing another read the railroad company’s waybills, is not competent evidence in a criminal case for the purpose of tracing cattle, alleged to have been stolen, to the possession of the accused.</p> <p>2. Witness: Instruction. The law makes a defendant in a criminal trial a competent witness in his own behalf, and the court should in no manner disparage his evidence. Therefore, an instruction, otherwise correctly stating the rules by which the jury should determine the weight to be given to the evidence of the accused, and which concludes with the words, “You are not required to receive blindly the testimony of such accused person as true, but you are to consider whether it is true and made in good faith, or only for the purpose of avoiding conviction,” is prejudicial to the defendant’s rights.</p>

<p>Action: Title to Land: Proof. In an action to try title to land against one in possession, when tile issues are substantially tbe same as in tbe ordinary action of ejectment, the plaintiff must recover, if at all, upon the strength of his own title, and not because of the weakness of that of his adversary.</p>

<p>Action: Vendor’s Lien: Defense. To an action by a vendor against a vendee of real estate in undisputed possession of the premises, to enforce a lien upon the lands for an unpaid residue of the purchase price, want of title in the vendor at the time of the sale or afterwards is no defense.</p>

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

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

<p>1. Counties: Bridge Repairs. Where there is a bridge over a stream which divides two counties and is a charge upon each, it is the duty of the county board of either cou'nty, when notified in writing by the other to join in a contract for the repairs of the bridge, to either comply with the notice by joining in the contract or unequivocally refuse to do so.</p> <p>2. Mandamus. This duty may be enforced by mandamus.</p>

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

<p>Usury. The loan made to the appellee in this ease held to be tainted with usury under the rule stated in. the case of Anselme v. American Savings & Loan Ass’n, 66 Neb. 520, which is followed,</p>

<p>Error to tbe district court for Brown county: .James J. Harrington, Judge.</p>

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

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

<p>1. Pledge: Suit to Enforce. A pledge of money or negotiable paper to the hands of a third party to secure the payment of the purchase price of chattels upon an executory contract of sale vests to the vendor a lien upon or interest in the fund, which, upon performance of the contract by him, he may enforce by a suit to equity.</p> <p>2. Evidence examined, and held to support the findings of fact and judgment of the trial court.</p>

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

<p>1. Occupying Claimant. Where an occupying claimant is allowed for valuable and lasting improvements made while in possession, the measure of his recovery is the amount the real estate increased in value by reason of such improvements, and not the cost of mating the same. Lothrop v. Miehaelson, 44 Neb. 633, followed and approved.</p> <p>2. Evidence examined, and held insufficient to sustain the trial court.</p>

<p>1. Election of Remedies. If, in attempting and designing to make an election, one puts forth, an act or commences an action in ignorance of substantial facts which proffer an alternate remedy, and the knowledge of which is essential to an intelligent choice of procedure, his act or action is not binding. He may, when informed, adopt a different remedy. Pekin Plow Oo. v. Wilson, 66 Neb. 115, followed and approved.</p> <p>2. Trusts, Enforcement of: Equity. The conventional relation of trustee and cestui que trust or other fiduciary relation is not essential to the jurisdiction of a court of equity to declare and’ enforce a trust with respect to the property stolen from the beneficial owner. Nebraska Nat. Bank v. Johnson, 51 Neb. 546, followed and approved.</p>

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

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

<p>1. Appeal Bond: Validity. An appeal bond in an action for the foreclosure of a mechanic’s lien, in which a personal judgment has been rendered against the obligors, which is conditioned that the appellants will pay all condemnation money, judgment and costs which may be found against him or them on the final determination of the cause in the supreme court, complies with the first subdivision of section 677 of the code, is based upon a sufficient consideration, and is valid.</p> <p>2. Judgment, Finality of. The “condemnation money” mentioned in the conditions of a bond given under the first subdivision of section 677 of the code is “found against the defendant” when the judgment of the district court appealed from is affirmed by this court.</p>

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

<p>Error to the district court for Olay county: Leslie G. Hurd, Judge.</p>

<p>1. Trial: Evidence. The evidence in this case is fouhd to be sufficient to require the submission of the issue to the jury.</p> <p>2. Pleading: Evidence. A fraudulent alteration of the note sued upon may be shown under the general issue, and, when the whole evidence fairly raises the question, testimony tending to show that no such indebtedness as the one sued upon ever existed is competent upon the issue of alteration.</p> <p>3. Action on Note: Evidence. I'n an action upon a promissory note, the plaintiff’s possession and production of the note at the trial is prima facie evidence of delivery and ownership.</p> <p>4. -: Delivery. If the note when executed is by agreement of the parties delivered to a third person to be by him delivered to the. payee upon the performance of a condition precedent, and the condition is performed after the death of the maker of the note, the delivery becomes complete by the performance of the condition..</p> <p>5. -: Evidence. When, in sin action upon a promissory note, there is evidence tending to show that the note sued upon is not the genuine note of the defendant, it is eompletent to show the circumstances surrounding the parties at the time of the alleged execution of the note.</p>

<p>1. Constitutional Law. Chapter 104 of the laws of 1899, amending section 125, chapter 58 of the criminal code of 1873, is valid, and not in conflict with section 11, article III of the constitution. The amendatory act is germane to the subject of the original section.</p> <p>2. Statutes: Amendment. The language of the section as amended fairly includes written instruments conveying the title to real estate to the one perpetrating the fraud, and thus securing the signature of a person or persons thereto.</p> <p>3. Information. "While the section as it now stands defines two offenses, to wit, obtaining money or property by means of fraud and false pretenses, and fraudulently disposing of property to defeat creditors, but one of these offenses is charged in the information, and it is not vulnerable to a motion to quash for duplicity.</p> <p>4. -: Demurrer. The information examined, and held sufficient in form and substance to resist a demurrer.</p> <p>5. Instructions given by the court on his own motion examined and approved.</p> <p>6. Evidence examined, and found sufficient to sustain the conviction and sentence herein.</p>

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

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

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

<p>Judgment of the district court affirmed for the reason set forth in Cassidy v. Collier, ante, p. 376.</p>

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

<p>Special Assessment: Recovery. A person seeking to take advantage of subdivision 63 of section 68, chapter 15, laws of 1889, known as the South Omaha charter of 1889, which allows taxes to be paid before delinquency under protest, and gives the right to recover the same back from the city if illegal, must bring himself within the provisions of the statute by paying the taxes before the whole amount is delinquent before he is entitled to recoven</p>

<p>1. Equalization of Taxes: State Boabb. The state hoard of equalization and assessment, in the equalization of property as between different counties, under section 130, article I, chapar 77, Compiled Statutes, 1903, is not required to enter into a formal investigation, examine witnesses, etc;, in ascertaining the relative values of the property of the different counties of the state. It may act upon the abstracts of assessments of the different counties and the khowldge of its own membership as to values generally.</p> <p>2. Findings. The trial court having found that the state board acted in good faith and without fraud, and the evidence sustaining the finding, the elements of bad faith and fraud are eliminated from the consideration of the questions arising in the case.</p> <p>3. Assessment. The values placed on property listed for assessment purposes by the county assessor and his deputies are not conclusive and final. The assessment as finally made is the values as found by the assessors and as corrected and equalized by the county and state boards of equalization.</p> <p>4.-. The assessment of property is not final until acted upon by the county and state boards of equalization, and not until the action of the latter is certified to the county clerks of the different counties and by them extended upon the tax rolls.</p> <p>5.-. An assessment is an official listing of persons and property, with an estimate of the value of the property of each for purposes of taxation.</p> <p>6. -: Collateral Attack. The state board, in the equalization of assessments as between different counties, acts in a quasi judicial capacity, and the action taken is not subject to collateral attack except upon grounds of fraud or other wrongful conduct equivalent thereto, or for the exercise of power not conferred upon it by law.</p> <p>7.-: Impeachment. The action of the state board in the equalization of assessments as between the different counties in ordering a per centum of increase in the aggregate valuation of some of the counties cannot be impeached in the absence of < fraud, bad faith or usurpation of power, by evidence tending to C prove that the property in the county affected was assessed by the county authorities at its actual cash value.</p> <p>8.-: Notice. No notice is required, other than that given by statute, of the time and place of meeting or of action taken by the state board in the equalization of the assessments of property of the different counties so as to conform to Jaw.</p> <p>9. Constitutional Law. The section of the statute providing for the equalization of the assessments of property as between the different counties by the state board by a per centum of increase or decrease of the aggregate valuations so as to make the same conform to law is not invalid because no provisions are made for an appeal from such action to the courts of the state.</p> <p>10.-. An owner is not deprived of his property without due process of law by means of taxation, if he has an opportunity to question its validity or the amount of such tax or assessment at some stage of the proceedings, either before that .amount is finally determined, or in subsequent proceedings for its collection.</p> <p>11. Equalization: State Boaed. The state board cannot, under the guise’ of equalization, raise valuations merely for the purpose of making such increase, but when an increase results incidentally in the equalization of property, so that all property may bear its equitable proportion of the burdens of taxation, such resulting increase is within the legitimate exercise of the power to equalize.</p> <p>12.-: -. The state board of equalization cannot deal with individual assessments, nor take into consideration inequalities as between individual taxpayers, but it deals only with the values of the taxable property of a county as a whole.</p> <p>13. -: County Boabd. Individual discrepancies and inequalities, the law contemplates, shall be corrected and equalized by county boards of equalization, who are specially empowered to hear complaints and grievances as between individual taxpayers, and to adjust and remedy the same as may be just. A taxpayer failing to avail himself of the opportunity thus presented has no legal ground of complaint because of the action of the state board of equalization in lowering or raising the valuation of all property in a county so as to conform with all other property throughout the state.</p> <p>14. -: Constitutional Law. The fact that an individual taxpayer cf a county has returned for assessment and taxation money on hand and in bank at its full face value will not prevent the state board from equalizing the assessment by raising the aggregate value of all property in such county th‘e per centum found necessary to bring it to a uniform standard with all property of the different counties of the state, nor do provisions of this character violate the fundamental law requiring all persons and corporations to pay a tax in proportion to the value of his, her or its property.</p> <p>15.-: -. Such an assessment of money at its legal value, and an order of increase in the value of all property of the county, including such money, can, at most, affect only the one item of property that is assessed in the first instance at its face value.</p> <p>16. Equity. Whether a court of equity would grant relief from such overvaluation not determined.</p> <p>1/. Injunction. In no event will an injunction lie until taxes legally due on such assessment are paid or tendered.</p>

<p>1. Bailroads: Municipal Assessments. In the assessment.of railway property for municipal purposes situated in cities of the metropolitan class, such as is required to he listed with and assessed by the state board of equalization for general revenue purposes under the provisions of sections 39 and 40, chapter 77, article 1, Compiled Statutes, 1901, as existing prior to the revenue act of 1903, it is made the duty of the tax commissioner or assessor of such city to accept the values of the fractional' part of such railroad property situated in the municipality as the same is valued and assessed by the state board of equalization, and apportioned to such city in accordance with the provisions of said act.</p> <p>2. -: -. The proportional share of railway property as valued and assessed by the state board of equalization belonging to and situated in such city and subject to taxation for municipal purposes may be equalized-by the proper authorities of such city, by lowering or raising the value of the same, as thus ascertained, so as to bring about uniformity of valuation in respect of all property subject to taxation within the municipality.</p> <p>3. —--: Taxation. It is competent for the legislature to provide for the valuation and assessment of the property of railway companies, such as is required to he listed and scheduled with the auditor of public accounts by sections 39 and 40, chapter 77, article I, Compiled Statutes, 1901, as heretofore existing, by one assessing body, and for ascertaining the value of the whole of such property of any one railway corporation subject to taxation in this state as a unit or as an entirety, and to distribute the value as thus found over the main line or track of such railway company and to the different taxing districts, municipalities, etc., on a mileage basis.</p> <p>4. Constitutional Law. Such a scheme or plan of assessment and taxation of the property of railway companies as therein provided for state, county and municipal purposes does not violate the provisions of the fundamental law commanding uniformity in the valuation and assessment of property for the purpose of raising needful revenues by the levying of a tax upon all property subject thereto according to its value.</p> <p>5.-. The valuation and assessment of the property of a railway company, as therein provided, as an entirety, and the distribution of the value thus ascertained upon a mileage basis over the entire line of such railway does not operate as a changing of the situs of the property assessed. Its effect is only to distribute the value of an organic whole to the fractional parts situated in the different subordinate taxing districts through which the line extends and in which the property is actually situated, which is a legitimate exercise of legislative power.</p> <p>6. Railroads: Taxation. In the assessment of railway property for taxation, as therein provided, it is competent for the legislature to classify such property, and provide for the assessment of the same as personalty, and to fix the situs of the property assessed by providing for the valuation of the property as an entirety, and the distribution of the total value to each taxing district according to the number of miles of main track located therein.</p> <p>7. Constitutional Law. Said sections 39 and 40, as existing prior to their repeal by the revenue act of 1903, are not invalid as taking property by taxation without due process of law. Chicago, B. & Q.' R. Go. v. Richardson Oounty, 61 Neb. 519, followed.</p>

<p>1. Criminal Law: Appeal. To render an appeal to the district court effective in a misdemeanor case, where conviction has been had in an inferior court, the defendant must enter into a recognizance, and with sureties, to be fixed and approved by the court or magistrate trying the case, as is provided by section 324 of the criminal code. A recognizance entered into by the defendant alone is insufficient to perfect a valid appeal.</p>

<p>1. County Bonds: Refunding: Appeal. Chapter 8 of the laws of 1899, commonly known as the “Refunding Bond Act,” as found in chapter 9 of the Compiled Statutes of 1903, provides for an appeal from the findings of the district court as to the validity of county bonds sought to be refunded, and authorizes the supreme court to make a finding and decision in such a proceeding which is binding upon the county board, the protestant and other parties to the record.</p> <p>2. Procedure. In such a proceeding we should attempt to do no more than render a decision as to the validity of the bonds, and thereby affirm or reverse the finding of the district court, as the case may be.</p> <p>3. —■-. It is not necessary in such a proceeding to determine the effect of the decision as to innocent purchasers of the bonds who are not parties to the record.</p> <p>4. Laws: Enactment. An enrolled bill found in the office of the secretary of state, signed by the officers of both branches of the legislature and approved by the governor, is prima facie evidence of its enactment.</p> <p>5.-; -. “Legislative journals may be looked into for the purpose of ascertaining whether a law was properly enacted.” State v. Frank, 60 Neb. 327.</p> <p>6.-■: -. “The silence of the legislative journals is not conclusive evidence of the nonexistence of a fact, which ought to be recorded therein, regarding the enactment of a law.” State v. Frank, 60 Neb. 327.</p> <p>7. -: -. In order to overthrow such enrolled bill, it must be made to affirmatively appear by the journals that it did not pass.</p> <p>8. Bonds: V aridity. A proposition to vote bonds to aid in the construction of a railroad or other work of internal improvement, otherwise in due form, will not be rendered void because it contains a clause authorizing the county to accept capital stock of the company.</p> <p>9. —i-: -. Where, by the terms of the proposition voted on, the bonds are not to be issued until a future time and on the happening of a future event, the assessed valuation of the county last made before such bonds are actually issued should be taken as the basis in limiting the amount of such issue.</p> <p>10. -: Repudiation. A municipality ought not to be allowed to repudiate its bonds after the compromise of a suit, in which their validity was in issue, by Which it received a substantial decrease of the interest rate thereon, and after it has paid the interest for 30 years and a part of the principal thereof, unless such bonds were absolutely void at the time they were issued.</p>

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

<p>Error-to the district court for Gage county: William H. Kelligar, Judge.</p>

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

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

<p>Appeal from the district court for Dawson county: Charles L. G-utterson, Judge.</p>

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

<p>Error to the district court for Dawson county: Charles L. Gutterson, Judge.</p>

<p>1. Review. Issues in the district court examined, and held reviewable, on appeal, by this court.</p> <p>2. Homestead rights cannot be divested by the act of the husband alone, but subsist in the wife after she has been abandoned by her husband.</p> <p>3. Homestead: Abandonment. Both an intention to abandon and an actual abandonment must concur in order to show an abandonment of the homestead.</p> <p>4.-: Alienation. A homestead is not a subject of fraudulent alienation.</p>

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

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

<p>1. Case Followed. Chicago, B. & Q. R. Co. v. Richardson County, 61 Neb. 519, followed.</p> <p>2. Act Constitutional. Sections 39 and 40, article I, chapter 77, Compiled Statutes, 1901, are constitutional and valid.</p>

<p>1. Res Judicata. .“A ‘right, question or fact’ distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies, and this even though the second suit is for a different cause of action.” State v. Broateh, 68 Neb. 687.</p> <p>2. Taxes: Cause of Action. A claim for taxes under the assessment for one year is not the same cause of action as a claim for taxes on the same property under an assessment for a prior year.</p> <p>3. -: Res Judicata. If the liability of property to taxation depends upon the existence of a specific fact, and that fact is necessarily determined in one litigation, it cannot be controverted by the same parties in a subsequent litigation.</p> <p>4. —--: -. The west half of the railroad bridge over the Missouri river owned by the company which operates through passenger and freight trains continuously through different counties of this state to and over said bridge, and thence through adjoining states, is “a part of the continuous line of road” within the meaning of sections 39 and 40 of the revenue act in force in 1901 (Compiled Statutes, eh. 77), and is assessable for taxation by the state board and not by local assessors, and a prior adjudication that such bridge so used is not “a part of the continuous line of road” is not an adjudication of fact, and will not operate as an estoppel against the parties to such prior litigation.</p> <p>5. Question of Law. The question whether such bridge so owned and used is “a part of the continuous line of road,” within the meaning of said statute, is a question of law, and not a question of fact upon which an estoppel can be predicated.</p>

Original action in the nature of quo warranto to oust respondent of its franchise. Heard on demurrer to answer of respondent.

<p>1. Information: Election. When an information contains two or more counts charging distinct and separate offenses of the same nature, the trial court may, in the exercise of a sound discretion, require ■ the county attorney to elect on which count he will rely for a conviction, either before the commencement of the trial, or after the state has produced its evidence in chief, and before the accused is required to mahe his defense.</p> <p>2. Motion to Quash. Record examined, and held that the defendant’s motion to quash the second and third counts of the information was properly overruled.'</p> <p>3. Demurrer to Evidence. Evidence contained in the bill of exceptions examined, and found sufficient to resist the demurrer of the defendant thereto, and his motion to require the court to direct the jury to return a verdict in his favor.</p> <p>4. Rulings. Held, that the record discloses no reversible error in receiving and rejecting evidence.</p> <p>5. Evidence is relevant which shows that the accused has threatened or assaulted a witness, has endeavored to prevail on him to abscond, has procured his absence, has endeavored to induce him to testify falsely, or has concealed the whereabouts of such witness from the prosecution; and such conduct on the part of an accused person is an incriminating circumstance to be weighed by the jury in determining the question of his guilt.</p> <p>6. Statutory Rape: Evidence. In a prosecution for statutory rape, frequent acts of improper familiarity between the parties implicated may be received in evidence to prove their adulterous disposition toward each other.</p> <p>7. Leading Questions. The trial court may, to a reasonable extent, permit leading questions to be propounded, on direct examination, to a hostile or reluctant witness.</p> <p>8. Continuance. Record examined, and held that defendant’s application for a continuance, after the prosecutrix had changed her evidence, was properly denied.</p> <p>9. Reopening Case. It is within the sound discretion of the trial court to permit a party, in furtherance of justice, to reopen his case and introduce other and further evidence at any time before the close of the trial; and where it is made to appear that there has been no abuse of discretion, and the substantial rights of the opposite party have been in no maner prejudiced by such a course, error cannot he predicated thereon.</p> <p>10. Assistant Counsel. An objection to the appearance of private counsel to assist the county attorney i‘n conducting a criminal prosecution, to be available, should he made at a suitable time and in the proper manner, and must he supported by at least some showing that the county attorney did not request or require any assistance, and the court had not appointed such counsel for that purpose.</p> <p>11.-. Held, that a general objection to the appearance of such counsel made during the trial in connection with the examination of a witness, and without any showing to support it, was properly overruled.</p> <p>12. Instruction. The fact that a single clause of an instruction is incomplete is not sufficient ground for a reversal, if, when the whole paragraph is read and construed together, its meaning is clear and certain, and it appears from the record that the jury could not have been misled th&reby.</p> <p>13. Evidence reviewed, and held sufficient to sustain the verdict.</p>

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

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

<p>Abatement. Section 45 of tbe code expressly enacts that an action shall not abate by reason of the disability of a party happening during its pendency. In such cases a duty devolves upon the court to take such steps as shall become necessary to protect and preserve the rights of the incapacitated party.</p>

<p>Claim against State. A creditor of the state is not excused from presenting his claim to the auditor of public accounts for settlement and allowance within two years' after its accrual by the fact that the legislature has not made an appropriation for its payment.</p>

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

<p>1. Common Carriers: Duties to Shippers. A common carrier of goods is required to provide facilities for and to receive and ship goods tendered at its stations on payment or tender of the usual tariff rates, and has no right to discriminate or favor one shipper over another in rates or facilities.</p> <p>2.-: -. But this general principle is subject to the modification that if the carrier has furnished itself with cars sufficient to carry the freight which may reasonably be expected to be offered for carriage, tailing into consideration the fact that at certain seasons more cars are needed, it has exercised due diligence in that regard, and where through causes which are not within its control it cannot supply the cars temporarily made necessary by unusual demand therefor, it is entitled to apportion the same in a fair and equitable manner among its patrons, and cannot be compelled to provide one shipper with • cars to the exclusion of others.</p> <p>3. Evidence. Under the facts set forth in the opinion, held, that no unjust discrimination has been proved, and that the relator is not entitled to the writ of mandamus prayed for.</p>

<p>Decision followed. The decision in this case is governed by the principles announced in Campbell v. Noyes, Norman & Oo., ante, p. 201, which is followed.</p>

<p>1. Judicial Sale: Appraisal: Estoppel. Where the amount of an apparent tax lien not included in a decree has been deducted from the appraised value of the debtor’s interest by the appraisers, and the purchaser, assuming that the taxes were valid, takes advantage of the deduction thereof, he will be presumed to have agreed with the judgment debtor that he will pay the taxes so deducted, and will not be heard to deny their validity in an equitable proceeding seeking to e’njoin their collection.</p> <p>2. Deed: Recitals: Estoppel. Where a purchaser of lands which are subject to an apparent lien for special assessments procures the title to the premises by a conveyance which recites that they are subject to the specific lien of the special assessments, which with interest thereon the purchaser assumes and agrees to pay as a part of the consideration thereof, he will not be permitted in a court of equity to set aside the tax as invalid.</p> <p>3. Paving: Notice. The provisions of a statute and ordinance requiring 30 days’ notice to be given property owners to designate the material which they desire used in repaving are mandatory and jurisdictional.</p> <p>4. Pleading: Waiver: Issues. Where the charter and the ordinances of a city require notice to be given to property owners for 30 days to designate material for paving, and notice is not given for the specified time, and the city relies upon facts tending to show a waiver of the failure to give notice, it should plead the waiver in its answer, and no waiver having been pleaded the facts are outside of the issues in the case.</p> <p>1. Paving: Notice: Jurisdiction. Under tie statute governing cities of the metropolitan class (Compiled Statutes, 1897, ch. 12a, sec. 110), property owners of a paving district must be allowed 30 days from the approval and publication of the ordinance declaring the improvement necessary in which to designate by petition the material to be used in repaving. But if a petition signed by the property owners representing a majority of taxable foot frontage, designating the material to be used, is filed, the mayor and council will not lose jurisdiction of the proposed improvement by acting upon such petition before the 30 days has expired, if no other petition, is filed within that time from which it appears that the necessary number of property owners have within the 30 days designated another material.</p> <p>2. -: Petition: Signature or Corporation. The president of a corporation is the proper party to sign a petitioh for repaving on behalf of the corporation. His signature will not be held invalid as unauthorized, although the board of directors took no action thereon, if it appears from the evidence that it had for some time prior to such signing been customary for the president to sign such petitions on behalf of the corporation without express authority from the directors, and that the directors knew of this custom and consented thereto, and had reason to believe that the president had signed the petition in question, and made no objection thereto until the improvement had been entered upon, relying upon the validity of such signature to bind the corporation.</p> <p>3. -: -: - — . The board of education of the school district of Omaha may authorize its president to sign such petition in the name of the board, and the signature of the board by its president pursuant to such authority will bind the school district.</p> <p>4. -- — : Street Intersections: Assessments: Injunction. It is the duty of the city council to provide available funds with which to pay for street intersections before ordering the improvement. But after the improvement is made and the intersections actually paid for by the city, special assessments against abutting property cannot be enjoined on the ground that this fund with which to pay for the street intersections was not available at the time the improvement was ordered.</p>

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

<p>Error to the district court for Nemaha county: Albert JEL Babcock, Judge.</p>

<p>Error to the district court for Douglas county: Lee 5. Estelle, Judge.</p>

<p>Error to the district court for Sheridan county: William H. Westover, Judge.</p>

<p>1. Cities: Street Improvements. Where the wearing surface of a paved street in a city of the metropolitan class has become so rotten and decayed as to be unfit for use, and in a work for the improvement of such street it is proposed and required that all the material composing the wearing surface of the entire portion of the paved street shall be removed and a new material of the same or of a different kind replaced or relaid thereon, even though on the same concrete base, such proposed work constitutes a “repaving” of the street as distinguished from “repairing,” as those words are used, in the charter act of such cities, applicable to and regulating the manner and method of improving such streets.</p> <p>2. Repaving: Petition. In the case at bar, it is held that the contemplated improvement of the street' is essentially and in substance a “repaving” thereof as distinguished from “repairing,” and can be engaged in by the city authorities only upon a petition of the abutting property owners, when it is proposed to tax back to the abutting property the cost of such improvement.</p>

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

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

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

<p>Beplevin: Answer. When a defendant in replevin qualifies a general denial in his answer by pleading specially that the title to the property in dispute is in him, he waives the technical defense that he was, not in possession of it at the beginning of the action.</p>

<p>Lease: Statute op Frauds. A written memorandum, signed by the party making the lease for a leasehold contract of more than one year, is competent evidence of a valid contract, when such written offer has been accepted by the lessor.</p>

<p>1. Contribution for payment of partnership debts cannot be enforced until there is a final settlement of all the affairs of the partnership.</p> <p>2. Evidence examined, and held insufficient to show a final settlement of partnership affairs.</p>

<p>Appeal from the district court for Colfax county: James A. Grimison, Judge.</p>

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

<p>Exceptions, Bill of: Mandamus. Where an ex parte order extending the time for the presentation of a hill of exceptions has been found upon a hearing, to have been wrongfully and fraudulently obtained, a district judge may set the order aside, and refuse to settle and allow the bill because not presented within the statutory time. In such case he will not be compelled by mandamus to settle and allow the bill.</p>

<p>Witness: Competency. Where an administrator introduces in evidence a letter from the adverse party giving a narrative of the transaction with the deceased party upon which the action is based, the evidence of the adverse party as to the transaction recited in the letter upon his own hehal-f is not incompetent under the provisions of section 329 of the code, and it is error to exclude the same.</p>

<p>1. Sale: Warranty: Defense. Where the petition alleges that the plaintiff agreed with the defendant to purchase certain threshing machinery, and that he received the same, subject to an agreement whereby he was to take such machinery upon trial, that it was warranted to be well fitted for the purposes for which it was sold, and that it shall operate to his satisfaction, and that if not satisfactory lie might return the machinery and receive back the notes and personal property given in consideration therefor; and the answer “admits that the property was taken under warranty, and subject to trial, but denies that the terms of said warranty and the conditions of such trial are as alleged in said petition,” Held, That the defendant is not entitled under such pleadings to prove and rely as a defense upon certain conditions in a written contract between the parties, which is not pleaded- in the answer.</p> <p>2. Defense: New Matter. Such a defense is new matter, and must be pleaded before it can be proved.</p> <p>3. Waiver. Under the circumstances set forth in the opinion, held, that the plaintiff in error waived the provisions of the written contract with reference to the retention of the machinery after a four-days’ trial constituting an acceptance of the same.</p>

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

Original application for a writ of mandamus to compel respondent to deposit in relator bank its pro rata share of the county funds.

Original application for a writ of mandamus to compel respondent to deposit in relator bank its pro rata share of the county funds.

<p>Trusts: Presumption. One who acquires a trust estate with knowledge oí its character, and while occupying confidential relations toward it and the eestuis que trustent, will be presumed to have taken the title subject t.o the trust, and that presumption cannot be rebutted without evidence, nor by such as is vague and ambiguous.</p>

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

<p>1. Advancements. To constitute an advancement as defined i'n section 37, chapter 23, Compiled Statutes, 1903, it is necessary either that the ancestor express in the gilt or grant his intention that it be an advancement, or that he charge it in writing as an advancement, or that the child or other descendant acknowledge in writing the gift or grant as an advancement.</p> <p>2. -. A debt from an heir to ah ancestor may be converted by the ancestor, with the consent of the heir, into an advancement, but when such debt is evidenced by note or bond this fact raises a strong presumption that the transaction was intended as a loan and not as an advancement,</p> <p>3. Evidenced examined, and held insufficient to show that a promissory note executed by a daughter and her husband to the father was intended as an advancement.</p>

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

<p>Error to the district court for Scott’s Bluff county: Charles L. G-utterson, Judge.</p>

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

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

<p>Error to the district court for Buffalo county: Charles L. Gutterson, Judge.</p>

Original suit to enjoin defendant, treasurer of Gage county, from selling certain lands for less than the full amount of the taxes levied against them.

<p>1. Extradition. Section 364 of the criminal code does not authorize the extradition of a person charged with crime against the laws of -another state without proof that the person so charged is a fugitive from the justice of the demanding state.</p> <p>2. Warrant. It is not necessary that the warrant issued hy the governor of this state upon the requisition of the governor of another state should contain the express statement that the governor has found that the accused is a fugitive from justice. The fact of the issuing of the warrant, upon demand made upon that ground, is sufficient to justify the presumption that the governor so found, until that presumption is overthrown hy proof to the contrary.______</p> <p>3. Habeas Corpus: Return. Upon proceedings in habeas corpus to obtain the discharge of one who is held .under the governor’s warrant in extradition, it is not indispensable that the officer’s return to the writ contain direct affirmative allegations of all of the facts upon which the extradition proceedings are based. If the return sets forth the governor’s warrant under which the accused is held, and the recitals of the warrant together with the allegations of the application for habeas corpus show facts sufficient to justify the detention of the accused, the return is sufficient.</p> <p>4. Requisition: Governor’s Findings: Questions oe Law. When such requisition is made upon the governor of this state he must determine: First, whether the person demanded is subs'-mtially charged with a crime against the laws of the state from whose justice it is alleged he has fled by an indictment or affidavit properly certified; and, second, is he a fugitive from justice from the state demanding him? When it is made substantially to appear to the court in habeas corpus proceedings upon what showing the governor acted, it becomes a question of law for the court to determine whether or not the accused has been substantially charged with a crime against the demanding state.</p> <p>5. Review: Evidence. In determining whether the evidence before the court below was sufficient to support the judgment, this court will not regard errors of the trial court in admitting incompetent evidence if it appear from the whole record that, upon the evidence conceded to be competent, no other conclusion could be reached than the one reached by the trial court.</p> <p>6. •-: Construction. This court is bound by the construction of the extradition laws adopted by the supreme court of the United States. In view of the language of that court in Hyatt v. Oorkran, 188 U. S. 691, the courts of this state will not review the decision of the governor in extradition proceedings upon a question of fact made before him, which the law makes it his duty to decide and upon which there was evidence pro and con before the governor.</p> <p>7. Cross-Examination: Error Without Prejudice. When, the relator in habeas corpus proceedings gives evidence in his own behalf, the court should not allow him to be cross-examined upon matters not related to his examination in chief, but an error in so doing is without prejudice to the defendant, the trial being to the court itself, when no other judgment than the one entered could have been rendered upon the evidence which is conceded to be proper and competent.</p>

<p>1. Bastardy: Trial. It is not error for the court, on the trial of a bastardy case, to refuse to order or cause to be removed from the court room a child less than five months old, brought by the prosecutrix with her to the witness stand, where such child was not exhibited to the jury, and no comparison was made between it and the alleged father.</p> <p>2. Testimony of Prosecutrix. In such a casé, the testimony of the prosecutrix that she was the mother of a bastard child; that it was born on a certain date; that it is a girl, and the accused is its father, together with .the fact that she brought a child with her to the witness stand, is sufficient to warrant the inference that such child was born alive, and was living at the time of the trial.</p> <p>3. Evidence examined, and held sufficient to sustain the verdict.</p>

<p>Error to the district court for Buffalo county: Bruno O'. Hostetler, Judge.</p>

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

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

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

<p>Error to tlie district court for Stanton county: Guy T. Graves, J urge.</p>

<p>Law of Case. The precise question, decided by this court upon appeal or error cannot be relitigated upon a retrial of the same case in the district court.-</p>

<p>Cities: Detaching Territory: Review. A judgment of the district court in a proceeding under the statute, section 101, article I, chapter 14, Compiled Statutes, 1903, to detach territory from a municipal corporation, will not be impeached upon appeal in the absence of a showing that the trial judge committed an important mistake of fact, or made an erroneous inference of fact or of law.</p>

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

<p>1. Executors and Administrators: Sale oe Real Estate: Review. In a statutory proceeding for a license to sell real estate By an administrator or executor, where no motion for a new trial is filed in the court below, we will, on error proceedings, examine the sufficiency of the pleadings to sustain the judgment.</p> <p>2. Special Proceeding. An application to the district court by an executor or administrator for license to sell real estate is not a suit in equity but a special statutory proceeding.</p> <p>3. Homestead, Sale of: Validity. A homestead of less value than ?2,000 cannot be disposed of at administrator’s sale either for the discharge of incumbrances thereon or for 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. Following Tindall v. Peterson, 71 Neb. 160.</p>

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

<p>1. Habeas Corpus. Void Judgment. The writ of habeas corpus cannot operate as a proceeding in error. If a person is restrained of his liberty by virtue of an absolutely void judgment, he may be discharged on habeas corpus. To obtain release by such a proceeding, the judgment or sentence must be more than merely erroneous; it must be an absolute nullity. Following In re Fanton, 55 Neb. 703.</p> <p>2. Jurisdiction. The judge of a district court has no jurisdiction to try and determine the guilt or innocence of a defendant charged with a felony who pleads not guilty, without a trial to a jury, and such jurisdiction cannot be conferred by consent of the accused.</p> <p>3. Void Commitment. Where a prisoner is held under a void commitment, but is properly informed against by information or indictment charging a crime before a court of competent jurisdiction, on a habeas corpus proceeding he should be discharged from his confinement on the illegal commitment, and remanded to the custody of the court having jurisdiction of the information or indictment pending against him.</p>

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

<p>Error to the district court for. Holt county: William H. Westover, Judge.</p>

<p>1. Railroads: Fences. Where a railroad company outside the limits of a city, .town or village has established a flag station, with platform, elevator, office and scales, coal house, corn-cribs, etc.., • for public use, it is not bound, under the provisions of the statute requiring railroads to be fenced, to fence its road in such a manner as to prevent the public from having proper access to its station grounds.</p> <p>2.-■: -. The failure to fence is excusable, however, only to an extent sufficient to afford the public and the railroad company necessary facilities for transacting the business reasonably to be expected at this locality.</p> <p>3. —■-: -. It is the locality where animals pass onto the right of way that determines the liability of the company, as between a place where the statute requires it to fence its road and a locality which it is not required to fence.</p> <p>4. Killing Animals: Liability. Under the facts in this case, held that the railroad company was not excused from fencing its road at the point where the animals went upon the right of way, and that it was liable for the hilling of the same. 1. Railroads: Fences. The intent of the statute requiring a railroad company to erect and maintain fences and cattle-guards along its line of road, is to compel the complete inclosure of the track, except in cities, towns, villages and necessary station grounds, so as to prevent access to the same at all points except public crossings.</p> <p>2. -: -. Principles laid down in the first three paragraphs of the syllabus in former opinion, ante, p. 793, adhered to.</p> <p>3. -: -. Fourth paragraph of syllabus to former opinion set aside.</p>

<p>1. Deposition: Cross-Examination: Witness: Competency. Where the testimony of a person having a direct legal interest in the result of an action where the adverse party is a representative of a deceased person is taken by deposition, and his testimony as to transactions with the deceased is objected to upon that ground, the adverse party may cross-examine. By so doing he does not waive his objections to the competency of the witness, hut may urge the same at the trial. If the evidence in chief is admitted at the trial the cross-examination should also be admitted; but, if the evidence in chief is excluded upon the objections of defendant as to competency, the cross-examination should also be excluded upon the defendant’s objection, and the plaintiff is not entitled to use it to establish his case.</p> <p>2. Married. Woman: Action: Evidence. In an action on account against a married woman, where the defendant pleads coverture, and the plaintiff in making his case discloses such fact to exist, he must prove, in order to. recover, that the transaction upon which his action is based was had with reference to or with intent to bind her separate property, estate or business.</p>

<p>Error to the district court for Butler county: Arthur J. Evans, Judge.</p>

<p>Error to the district court for York county: Benjamin E. Good, Judge.</p>

<p>Instructions must be consistent with' each other, and if upon a fair construction of all the instructions given in a case they require that the plaintiff prove substantive facts that are not necessary to a recovery, such instructions are erroneous.</p>

<p>Original application for a writ of mandamus to compel respondents to canvass tlie votes for village trustees.</p>

<p>1. Husband and Wife: Action. In this state the common law disability of husbands and wives to maintain suits at law against each other upon contracts between them has been removed by statute.</p> <p>2. Illegitimate Children. The marriage of the parents of illegitimate children does not legitimate the latter, except upon the conditions prescribed by section 31, chapter 23 of the Compiled Statutes.</p> <p>3. - — : Support: Bond. ' The moral obligation of the father of illegitimate children to provide for their support is a sufficient consideration for his bond so to do.</p> <p>4. Bastardy: Fraud. Bastardy proceedings begun against the father are not abated by his fraudulent marriage with the mother not consummated by cohabitation with but followed by immediate abandonment of her.</p>

<p>Review. When the verdict and judgment are such as alone could he upheld by the undisputed and indisputable evidence, the court will not examine the record for the ascertainment of alleged errors occurring at the trial.</p>

<p>1. Indemnifying Bond: Duration. A bond of indemnity, not stipulating how long it shall remain in force, but covenanting that so long as it shall so remain the obligor shall be paid an annual premium in advance, does not require the payment of the premium so as to continue the obligation, but leaves the obligee, at liberty to decline to- make payment and thus put a period to the contract so far as the rights of third persons are not affected.</p> <p>2. Official Bonds: Statute: Amendment. The act of 1895 (Laws 1895, ch. 22) entitled “An act to facilitate the giving of bonds, undertakings and recognizances, and to authorize the acceptance of certain corporations as surety thereon, and to repeal all acts and parts of acts in conflict herewith,” is ineffectual as an amendment or repeal of chapter 10 of the Compiled Statutes, entitled “Bonds and Oaths — Official,” or to dispense with personal sureties upon official bonds as required by that chapter.</p>

<p>Directing Verdict. Upon the undisputed evidence the trial court rightfully directed a verdict for the defendant.</p>

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

<p>1. Insurance: Benefit Certificate: Defense of Suicide: Burden of Proof. In an action upon a municipal benefit certificate, where the defense interposed is suicide, the burden is upon the defendant to establish such fact by a preponderance of the evidence.</p> <p>2. Cause of Death: Question for Jury. The question of the proximate cause of death in such an action is ordinarily a question of fact for the jury, and should not be taken from its determination unless the evidence is of such a nature as to clearly and certainly point to but one reasonable conclusion.</p> <p>3. Case Distinguished. Sovereign Gamp of the Woodmen of the World v. Hr%by, 70 Neb. 5, examined and distinguished.</p> <p>4. Circumstantial Evidence. When circumstantial evidence only is relied on to establish suicide, the defense fails unless the circumstances exclude with reasonable certainty any hypothesis of death by accident or by the act of another. Modern Woodmen of America v. Kozak, 63 Neb. 146, followed and approved.</p> <p>5. Cause of Death: Question for Jury. Held, That, under the facts and circumstances proved in this case, reasonable minds might differ as to whether deceased came to his death from a wound inflicted by his own hand with suicidal intent, and that such question should have been submitted to the jury under proper instructions.</p> <p>1. Insurance: Action on Certificate: Burden of Proof. In an action on a beneficiary certificate, or a life insurance policy, where the company or association alleges suicide as a defense, the burden of proof is on the defendant to establish that fact by a preponderance of the evidence.</p> <p>Z. Presumption: Evidence. The presumption in such a case that a sane person will not destroy his own life is a rebuttable one and must yield to proof of physical facts clearly inconsistent with it.</p> <p>3. -: -. Competent proof of facts and circumstances surrounding and connected with the death of the assured which point clearly and unmistakably to the conclusion that he took his own life, and which exclude all reasonable probability of death by murder or accident, is sufficient to overcome and destroy the presumption above mentioned, and establish, at least prima facie, the defense of suicide.</p> <p>4. Directing Verdict. If nothing is shown by either party inconsistent with the proof of such facts, it is the duty of the trial court to direct the jury to return a verdict for the defendant. Sovereign Gamp of the Woodmen of the World v. Eruby, 70 Neb. 5, followed.</p>

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

<p>1. Promissory Note: Alteration. Tlie alteration, of a negotiable promissory note, after delivery, by filling in blanks left therein, where there is nothing on the face of the note to indicate such alteration, will not invalidate the note in the hands of a tona fide endorsee, for value, before maturity, and without notice of such change.</p> <p>2. Negligence: Equity. If the negligence of one influences and induces an act whereby an innocent man is injured, the culpable party must sustain the loss. Yocum v. Smith, 63 111. 321, followed and approved.</p>

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

<p>1. Sale of Heal Estate: Statute oe Frauds. It is not necessary that a memorandum, signed by the grantor, sufficient to evidence a sale of real estate, should all be contained in a single letter or communication; but if the contract can be ascertained from the entire correspondence between the parties, or from two or more separate papers referring manifestly to the same subject, without the aid of oral evidence, it will be a sufficient memorandum within the meaning of the statute of frauds.</p> <p>,2. Memorandum. While an undelivered deed properly executed and placed in the hands of vendor’s agent is not, standing alone, a sufficient written memorandum to evidence a contract of sale of real estate, yet it does not follow that such undelivered deed, submitted to the grantee for inspection, may not be considered for the purpose of aiding an imperfect description in another written memorandum signed by the vendor.</p> <p>3. Evidence examined, and held to show a sufficient memorandum in writing signed by the vendor to take a contract of sale of real estate without the ban of the statute of frauds.</p>

<p>Contract: Beeach: Damages. The rule is elementary that in an action for .damages for breach of contract such damages only may be recovered as are the probable, direct and proximate consequences of the wrong complained of, and such as may fairly be supposed to have been within the contemplation of the parties at the time of the making of the contract as a probable result of the breach of the same.</p>

<p>1. Appeal: Review. It is the settled doctrine of this court that in reviewing a judgment of the district court upon appeal this court will only consider whether or not the pleadings and the evidence are sufficient to justify the judgment of the district court.</p> <p>2. -: -. Upon an examination of the pleadings and the evidence, held, that they fully support the judgment of the district court.</p>

<p>1. Negligence: Demubber: Evidence. A general allegation of negligence is good against a demurrer, and under sucli an allegation evidence of any fact which contributed to the injury sued for is competent and relevant, Omaha & R, V, R. Go. v. Wright, 49 Neb. 456.</p> <p>2. Petition: Amendment: Cause oe Action. Original petition and amended petition examined and compared, and held, that the amended petition does not state a new or different cause of action from that set forth in the original petition.</p>

<p>1. Contract: Lien: Waiver. Where a written contract of sale is made of an entire crop of standing hay at an agreed price per ton, part payment is made, and the purchaser takes possession of the crop, cuts and stacks it, and bales and carries away part of it, the title to the crop passes to him. The fact that the contract provides that the hay is to be paid for before taken from the farm merely gives a lien on the hay for the unpaid purchase money, which may be waived by the seller.</p> <p>2. Action: Error. Under the pleadings and evidence in this case, held, that the seller waived her lien; that an action for the contract price was properly brought, and that the case should have been submitted to the jury.</p>