Volume 73 — Nebraska Reports

<p>1. Statute: Local Custom. A local custom cannot operate to suspend a criminal statute, nor to overthrow the rules of evidence by which the commission of an offense is proved.</p> <p>2. Cattle Stealing. Where one not the owner takes into his possession a calf found running at large as an estray, and at the time takes it with the intent to convert it to his own use, and to permanently deprive the owner of his property without his consent, such a taking would constitute the crime of cattle stealing as defined in the criminal code.</p> <p>2a. Instructions defining the crime of cattle stealing as copied in the opinion, where the taking is of an animal running at large, held properly given.</p> <p>3. Evidence examined, and held sufficient to sustain a verdict of guilty.</p>

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

<p>Appeal from tbe district court for Washington county: William W. Keysor, Judge.</p>

<p>1. Real Estate'Agent: Authority. A letter written to one who has solicited the agency for the sale of certain real estate, in which the owner states, in substance, “I still have the northwest quarter of section 20, township 22-5, and would sell for $3,000 cash net to me, or $3,200 on time, one-third down and the back payments secured by first mortgage. The man that sells it will have to get his commission out of the man that buys” — is sufficient to authorize such person to sell the land according to the terms therein stated.</p> <p>2. Specific Performance: Cross-Petition: Demurrer. An answer and cross-petition praying for the specific performance of a contract for the sale of the land in question entered into by such agent, which affirmatively shows that the owner had sold it to another 6owa fide purchaser for a valuable consideration, before the date of the contract made by said agent, and in which no claim is made for damages for a breach of such contract, does not state facts sufficient to entitle the defendant to any relief, and is therefore vulnerable to a general demurrer.</p>

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

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

<p>Review: Law oit Case. It is the established and necessary practice of this court that issues of law definitely decided upon error or appeal cannot he relitigated in the district court in a subsequent trial of the same case.</p>

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

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

<p>1. Title by Adverse Possession. Prior to tbe passage of chapter 79, laws of 1899, title by adverse possession could be established in lands owned by a municipal corporation tbe same as in those owned by a private individual.</p> <p>2. Decision: Overruling. In order to overrule a former decision deliberately made, tbe supreme court should be convinced not merely .that tbe case was wrongly decided, but that less injury will result from overruling than from following it.</p>

<p>1. Constitutional Law. Held, That chapter 1, laws of 1895, entitled “An act to provide for the encouragement of the manufacture of sugar and chicory and to provide a compensation therefor,” is in contravention of section 11, article III of the constitution, which provides: “No bill shall contain more than one subject, and the same shall be clearly expressed in its title.”</p> <p>2. -: Obligation on Contract. A moral obligation can never be deemed to rest upon tbe people of tbe state to discharge a contract made by the legislature in direct violation of’the constitution.</p> <p>1. Legislative Powers. The legislature cannot appropriate or pledge the public money for private purposes.</p> <p>2. Constitutional Law. Chapter 1 of the laws of 1895, entitled “An act to provide for the encouragement of the manufacture of sugar and chicory and to provide a compensation therefor,” is unconstitutional and void.</p> <p>3. Bounties: Obijoatioí: oír State. The statute offering a bounty for the manufacture of sugar and chicory being unconstitutional because of lack of power on the part of the legislature to appropriate money for such purpose, the fact that the manufacturers paid larger prices for their products to the producers of beets from which to manufacture these articles, relying upon this statute for remuneration, will not create i'n favor of such manufacturers any obligation against the state.</p>

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

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

<p>1. Alimony. In awarding alimony the court should consider the condition, situation and standing of the parties, financially and otherwise, the duration of their marriage, the amount and value of the husband’s estate, the source from which it came and how far, if at all, the wife contributed thereto.</p> <p>2. Evidence examined by this criterion, and held that the amount of alimony awarded is not excessive.</p>

<p>1. Fireman: Licensee. In the absence of any municipal ordinance or statute changing the rule, a fireman who entered upon property without any special authority or invitation of the owner is a bare licensee, made such by public necessity and takes the risk of the premises as he finds them.</p> <p>2. -: Electric Wires: Injury. A member of a truck company, who assists to hoist a ladder with metallic corners against an electric light wire, cannot, in the absence of invitation or permission of the owner, complain that the wires were not properly insulated and that he was injured because of such lack of insulation.</p> <p>3. Injury: Appliances. A claim for injury by an electric shock cannot be sustained by a mere hypothetical claim that such shock* was only rendered possible by a ground current negligently permitted at some other point in the circuit by defendant, it not appearing that any usual precautions to prevent such “grounding” had been omitted or that defendant had or under the circumstances ought to have had knowledge of it</p> <p>4. City Ordinance: Duty of Electric Company. Section 1 of ordinance numbered 4,363 of the city of Omaha, held to impose no duty on the defendant Tight company except to furnish a competent lineman to act under the city authorities’ direction in disconnecting wires.</p> <p>5. Electric Companies: Not Insurers. The furnishing of electric currents for power and lighting purposes is a recognized business which must be conducted with due regard to the safety of both employees and the public in view of the dangerous character of such currents, but their furnishers are not insurers against all dangers from them. Blameless casualties may arise from their operation.</p> <p>6. -: Agent: Ordinance. A lineman of the electric light company, while acting at fires under the direction of the city authorities in pursuance of the ordinance before mentioned, cannot render the company liable by his words or acts in the absence of special authority.</p> <p>7. Pleading and Proof: Negligence. Held, That in the present case there is neither allegation nor proof that defendant, after knowledge of the dangerous position of deceased, negligently omitted to turn off its electric currents.</p>

<p>1. Indemnity School Lands: Congress tonal Grant. The act of congress approved March 3, 1893, 27 U. S. Statutes at Large, ch. 200, p. 555, grants to the state such portions of the lands embraced within the abandoned military reservation therein named, out of the odd-numbered sections, when surveyed, as indemnity school lands as shall be selected within one year after the survey and the filing of the plats thereof, and accepted in full satisfaction of the state’s claim for a like number of acres lost in sections 16 and 36, which were set apart for the use and benefit of the common schools at the time of the admission of the state into the Union.</p> <p>la. ——: -. The grant became absolute and the state became possessed of the fee simple title upon its acceptance of the terms of the grant and its selection, within the time limited, of the lands granted for the purpose named, as therein provided.</p> <p>16.-: Settlebs. The proviso found in the act to the effect that no existing lawful rights arising under the public land laws shall ''e prejudiced by the act cannot inure to the benefit of one who settles on and improves the land at or about the time of the passage of the act, and before the survey of the land as therein contemplated, and before the expiration of the time in which the state might make its selection, as therein provided. A person settling upon such land under such circumstances is technically a trespasser, and can acquire no valid preference right thereby as against the state’s right to select lands as indemnity school lands, as in said act provided.</p> <p>lc. --: -. The act of congress of July 5, 1884, 23 U. S. Statutes at Large, ch. 214, p. 103, recognized only the right of an individual settler who was in actual occupation of a portion of a military reservation prior to the location of the reservation or prior to January 1, 1884, in good faith, for the purpose of securing a home.</p> <p>ld. -: - — . The rights acquired by settlement, and recognized by the act of July 5, 1884, as above mentioned, or those of like character are the “lawful rights” which it is declared shall not be prejudiced in the act of March 3, 1893, granting lands to the state as indemnity school lands in lieu of other lands theretofore lost.</p> <p>le. -:•-. The act of congress of August 23, 1894, 28 U. S. Statutes at Large, ch. 314, p. 491, giving the perference right of entry to a bona fide settler on lands embraced within an abandoned military reservation, in no way impairs the right of the state to select indemnity school lands within the time and manner as contemplated by the grant for that purpose contained in the .act of March 5, 1893.</p> <p>2. Pleadings. An allegation in an answer which pleads only a conclusion and not an issuable fact states no defense and is vulnerable to a demurrer.</p> <p>3. School Lands: Selection: Constitutional Law. The constitutional provisions relating to the control and management of educational lands and funds, and the creation of commissioners for that purpose, are not applicable to the means employed whereby title to lands is acquired by the state for the benefit of the public schools, ' but only to the control and management thereof after the title has become vested in the state.</p> <p>3a. -: -: -. The state may by its legislature accept the terms of an act of congress granting to it lands as indemnity school lands, and authorize the commissioner of public lands and buildings to select the lands thus granted, without violating any of the provisions of the fundamental law.</p> <p>4. -: Title. The legislature having accepted the terms of the grant of indemnity school lands, as provided by the act of congress of March 3, 1893, and authorized the selection of the lands granted by the commissioner of public lands and buildings, and the selections having been made within the time limited and approved by the interior department, and set apart and noted upon its records as indemnity school lands selected by the state of Nebraska, the state thereby became vested with a perfect and absolute title to all of such lands.</p> <p>4a. -: Power oe Legislature. It is not competent for the legislature to provide for the disposition of school lands to which the state has acquired a perfect and absolute title, otherwise than as authorized and directed by the constitution.</p> <p>46. Statute: Constitutional Law. The act of the legislature passed in 1901, ch. 115, laws, 1901, entitled “An act for the relief of” the parties therein named, contravenes the provisions of. sections 1 and 8, article VIII of the constitution, and is therefore inoperative and wholly void.</p>

<p>1. Misdemeanor: Pure Food Act. The sale of milk adulterated by-adding thereto a substance containing poison is made a misdemeanor by the general provisions of chapter 99, laws of 1897, known as the “Pure Food Act.”</p> <p>2. Information: Adulterated Milk. The allegation in the information that the defendant “did then and there unlawfully and knowingly sell to one William F. Thompson a quantity of milk, to wit, one quart of milk, as and for pure milk, an article of food to which a quantity of a substance or ingredient was added which is poisonous,” is sufficient. No special allegation of guilty knowledge is necessary.</p> <p>3. -: -. The allegation that defendant sold milk “as and for pure milk, an article of food,” is a sufficient allegation that it was sold as an article of food.</p> <p>4. Sale for Analysis. It is not a violation of the act to sell a quantity of an article of adulterated food as a sample for the purpose of analysis upon demand made for that purpose under section four of the act. If the sale is freely made in the ordinary course of trade without a demand therefor for the purpose of analysis, provisions of section four have no application. The fact that the purchaser intended to analyze it, and that the seller was aware of that intention, will not bring the transaction within the provisions of section four.</p> <p>5. Sale: Guilty Knowledge. The statute provides that food shall be considered adulterated if it contains “any added substance or ingredient which is poisonous or injurious to health.” A dealer in food, who puts a foreign substance containing poison into the food which he sells, cannot defend such action on the ground that he did not know that such substance contained poison.</p>

<p>1. Land: Transfer to Co-Owner: Trust. If an owner of an undivided one-half of a tract of land conveys the same by quitclaim deed to his co-owner, who thus obtains the legal title by virtue of confidential relations between them, and under such circumstances that he ought not according to the rules of equity and good conscience as administered in chancery to hold the benefits, out of such circumstances or relations a court of equity will raise a trust by construction, fasten it upon the conscience of the offending party and convert him into a trustee of the legal title.</p> <p>2. Equity. In such a case, on the refusal of the grantee to reconvey according to the agreement of the parties, the court will set aside the quitclaim deed and restore the grantor to his rights in the property.</p> <p>3. Accounting. If the grantee makes no claim for an accounting, and introduces no evidence to show that he has contributed more than his share to the payment of the purchase price, the interest thereon and the taxes assessed against the land, the court is not required to state an account, between the parties before rendering the decree.</p>

<p>1. Street Railways: Liability. Street railway companies are common carriers of passen. 3, and are liable as other common carriers upon common law principles. They are required to' exercise the utmost skill, diligence and foresight consistent with the business in which they are engaged for the safety of their passengers, and they are liable for the slightest negligence.</p> <p>2. Action: Evidence: Presumption. In an action for damages for ah injury received while being transported by such common carrier, proof of mere injury, without more, does not raise the presumption of negligence sufficient to impose on the company the burden to prove due care on its part.</p> <p>3. Burden of Proof. In such case the burden is on the plaintiff to prove that he was a passenger, was injured, the extent of his injuries, the accident from which the injury resulted, and circumstances of such a character as to impute negligence.</p> <p>4. -. But where negligence is proved, or where from the nature of the accident which was the proximate cause of the injury negligence is presumed, the carrier is then required to show that it was in nowise at fault, or that the plaintiff was guilty of some negligent act which contributed to the injury complained of.</p> <p>5. Instruction. In such a case it is error to instruct the jury, in substance, that it is only necessary for the plaintiff to prove that he was a passenger and was injured, and' that the burden of proof is then upon the defendant to show by a preponderance of the evidence that it was not guilty of the negligent act complained of.</p> <p>6. Case Disapproved. Paragraph four of the syllabus to Lincoln Street R. Co. v. McClellan, 54 Neb. 672, is disapproved, and the opinion is modified to conform to the rule above stated.</p>

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

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

<p>Instruction. An instruction is erroneous which, withdraws from the issues a material matter in dispute.</p>

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

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

<p>Ejectment. In ejectment, plaintiff must recover, if at all, on the strength of his own title.</p> <p>1. Instructions: Review. Action of tlie trial court in giving and refusing instructions examined, and held not prejudicial.</p> <p>2. Evidence: Review. Action of tlie trial court in admitting evidence examined, and held not prejudicial.</p>

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

<p>1. Assumpsit: Question eor Jury. Where a material alteration has been made in a promissory note, whereby such note was avoided, and an action is brought against the makers for money paid to defendant’s use by one who guaranteed the note, procured money from a bank thereby and sent it to one of the makers, the question whether or not the money was paid to one of the defendants for his sole benefit, or whether it was paid to a partnership composed of both defendants, or the transaction adopted and ratified by the partnership, is a question for the jury.</p> <p>2. Review. Where, upon sufficient evidence, the jury has found that such money was paid to and for the sole benefit of one of the defendants, its verdict will not be disturbed.</p>

<p>1. Petition examined, and held to state a cause of action.</p> <p>2. Parties. Persons severally liable upon the same promissory note may all or any of them be included in the same action, at the option of the plaintiff. Section 44 of the code.</p>

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

<p>Appeal from the district court for Burt county: Irving F. Banter, Judge.</p>

<p>1. Law of Case. The deciden of.a law question by this court upon the first appeal of a cause will ordinarily be adhered to upon a second appeal as the law of the case. No exception to this rule will be made when the question so determined is one of practice, and the parties have been guided by such decision in the second trial of the case.</p> <p>2. New Trial. When a proceeding is begun in the county court, and appealed to the district court and there tried, an application for a new trial on the ground of newly discovered evidence can be made only in the district court.</p> <p>3. Appeal. Under the statute allowing appeals “in actions in equity,” any order or proceeding in such action that may be brought to this court for review may be brought by appeal.</p> <p>4. New Trial. In an action in equity to vacate a judgment at law, the district court may grant a new trial for the same reasons and upon the same condition that it may in other equity causes.</p> <p>5. -: Limitation. In an action tried in the district court upon appeal from the county court, the time in which an application for a new trial may be filed runs from the date of the judgment of the district court. This is so though the action or proceeding is one of which the county court has exclusive original jurisdiction.</p> <p>6. -: Diligence. To obtain a new trial on the ground of newly discovered evidence, it must be made to appear that the party applying has used due diligence to obtain the evidence and present the same at the trial. The pleadings and evidence in this case show such diligence.</p> <p>7. -: Showing. In such application for a new trial, it must appear that the new evidence is of so controlling a nature as to probably change the result of the former trial. If the party applying for the new trial failed upon the former trial for want of sufficient proof of an essential fact which the new evidence strongly tends to prove, it sufficiently appears that such evidence would probably change the result.</p> <p>8. Lost Will: Parol Evidence. When a subsequent will is lost or cannot be produced, it is competent to prove by parol that it contained a clause revoking the former will.</p> <p>9. Destroyed Will: Evidence. Pufscmption. If a prior will is proposed for probate by a beneficiary thereof, whose testimony is that lie found the will among the effects of the deceased, but did not find a later one (which the evidence shows it would plainly be to his interest to destroy), it will not be presumed that the testator himself destroyed the later will, and that in so doing it was his purpose and intention to revive the former one. The existence of a fact cannot be presumed from another fact which itself rests wholly o'n presumption.</p>

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

<p>1. Evidence of Value. A husband and wife are competent to express an opinion as witnesses concerning tbe value of their own household furniture.</p> <p>2. Evidence: Review. An insufficient objection to the competency of a witness cannot be availed of as an objection to the competency or relevancy of his testimony.</p>

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

<p>Contempt. A court of record may not punish, as for a criminal contempt, summarily, without formal accusation or complaint, and without affording the accused a reasonable time to prepare his defense, except in those cases in which the judge is, while in exercise of his office, an actual witness of the alleged contemptuous conduct, or, at least, of a substantial part thereof, so that he is not compelled to inform himself concerning it and of the circumstances of its commission by the testimony of witnesses.</p>

<p>1. Irrigation: Extension of Ditches. Before the enactment of the general irrigation law of 1895, after an appropriation of water to a beneficial use had been made, the appropriator had the right under section 5, chapter 93a, Compiled Statutes, 1903, to extend the ditch to places beyond where the first use was made.</p> <p>2. Application, Requisites of. Said section 5, however, must now be construed together with the provisions of the general irrigation law of 1895, and persons or corporations claiming the right to extend the ditch or change the place of use of water, in their application to the board of irrigation for an adjudication of priority, or for a permit to change the place of use, must specify the lands which the new use of the water is designed to irrigate.</p>

<p>1. Bailment: Bailee’s Liability. When a bailment is reciprocally beneficial to both parties,-the law requires ordinary diligence on the part of the bailee, and makes him responsible for negligence.</p> <p>2. Contract: Construction. Contract examined, and held to require the defendant to use reasonable and ordinary care to care for, feed and protect the cattle specified therein, and to make him liable for negligence.</p> <p>3. Damages. "Just remuneration,” as used in the contract, means the remuneration which the plaintiff would be justly entitled to under the law for the loss of his cattle by the defendant’s negligence, and this is the value of the cattle lost.</p> <p>4. Care Required. When a contract requires an agister to care for cattle “in all respects as he would for similar property of his own,” the legal presumption is that he would give his own cattle such care as an ordinarily prudent man would under like circumstances, and this is the measure of the diligence required of him under the contract.</p> <p>5. Instructions: Review. Objections to instructions en masse will not be considered where any of those so complained of are correct.</p>

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

<p>New Trial: Review. Oa proceedings in error from an order granting a new trial, the grounds for the sustaining- of the motion not appearing in the record, it will be presumed that the action of the trial court was correct; and the plaintiff in error must show affirmatively that none of the grounds alleged in the motion for new trial was valid and sufficient to justify the order before this court will interfere.</p>

<p>Error to the district court for Sarpy county:. Abraham L. Sutton, Judge.</p>

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

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

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

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

<p>1. Laws: Authentication. A law cannot be established by the certificates of the clerical officers of the senate and house of representatives, made after the adjournment of the legislature, sine die, for the purpose of authenticating a purported act as one having been duly passed by the legislative branch of government.</p> <p>2. —--: Enactment. The bill herein considered, not being authenticated by the signature of the presiding officer of either Branch of the legislature as required by section 11, article III of the constitution, which provides that “the presiding officer of each house shall sign in the presence of the house over which he presides, while the same is in session and capable of transacting business, all bills and concurrent resolutions passed by the legislature,” held not to have become a law.</p>

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

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

<p>Evidence examined, and held not to support the verdict.</p>

<p>1. Trial: Continuance. It is not error to deny a motion for a continuance because of tile. absence of an attorney, if the party making the motion is represented at the trial by other competent counsel familiar with his case.</p> <p>2. Harmless Error. When the verdict is the only one that the evidence would uphold, the court will not inquire with respect to alleged errors occurring at the trial.</p>

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

<p>I. Executors: Expenses op Litigation. Where an executor in good faith expends money for court costs and attorney’s fees in an honest effort to prosecute a claim in favor of the estate, he is entitled to recover for such expenses, although his suit in such behalf may be unsuccessful.</p> <p>2. ._; -. But where an executor or administrator advances money for court costs and attorney’s fees for his own benefit or for the benefit of those whose claims are adverse to the estate, he cannot recover against his estate for such advances.</p> <p>3. Pleadings: Judgment. Held, That the pleadings in this proceeding are not sufficient to warrant a personal judgment against the executor.</p>

<p>Pleading. A pleader is not required to anticipate matter in avoidance of his allegations. Larson v. First Nat. Bank, 66 Neb. 595, followed and approved.</p>

<p>1. Void Execution. An execution issued on a satisfied judgment is void.</p> <p>2. Void Garnishment. "Where a fund is in the hands of the cleric of the district court which has been obtained by a void garnishment proceeding, the court should direct such, funds to be returned to the garnishee.</p>

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

<p>1. Taxation: Board of Equalization. Under the provisions of section 161, chapter 12a, Compiled Statutes, 1901, known as “Omaha Charter,” a board of equalization when properly in session, with due notice given, acts judicially and its action -within its jurisdiction is not open to collateral attack except for “fraud, gross injustice or mistake.”</p> <p>2. Complaints. The - provisions of section 164 of the same chapter, “No court shall entertain any complaint that the party was authorized to make, and did not make to the city council sitting as a board of equalization, nor any complaint not specified in said notice, fully enough to advise the city of the exact nature thereof; nor any complaint that does not go to the ground work, equity and justice of the tax,” do not apply to cases of “fraud, gross injustice or mistake.”</p> <p>3. “Gross injustice” within the meaning of this clause must be so flagrant and excessive in its nature as to substantially deprive a citizen of his property or a part thereof without due process of law and be confiscatory.</p> <p>4. Excessive Tax. Where proceedings up to the time of assessment by the board of equalization are regular, and in its determination the board errs in such a manner as to cause an excessive and unjust apportionment of the tax upon a particular piece of property, such error, as a general rule, will not defeat the whole tax in equity.</p> <p>5. Relief in Equity. If such excess cannot be determined by computation and without proof, the court should determine the amount of tax justly chargeable against the property as nearly as practicable from the evidence produced on the trial, and require the payment of the same as a condition of granting relief against the excess.</p>

<p>Error to the district court for Douglas county: Abraham L. Sutton, Judge.</p>

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

<p>1. Party Wall Agreement: Recording: Notice. The proper reglstratratlon of a party wall agreement is constructive notice to all purchasers of the real estate affected hy the agreement, and such notice is as effectual and binding as actual notice.</p> <p>2. -: Construction. Party wall agreement construed, and held, that it was the intention of the parties that the privileges, duties and liabilities given and imposed by the contract should pass to all persons obtaining title to either of the lots upon which the wall stood by grant from the original parties. Held, further, that the agreement 'itself operates as an assignment to his grantee of the claim of the builder of the wall for compensation for its use as soon as that person was designated by his deed.</p>

<p>1. Error: Process: Acceptance oe Service. Where a person obtains a judgment in the district court, and after his death error proceedings are begun seeking to reverse the same, an acceptance of service of summons in error by his attorney of record in the district court is not sufficient to give this court jurisdiction of the error proceedings. Ritchey v. ■Seeley, 68 Neb. 129, followed.</p> <p>2. Judgment: Jurisdiction. A judgment rendered by a court without jurisdiction of the parties is absolutely void. The supreme court stands upon no higher or different footing in this regard than a court of inferior jurisdiction.</p>

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

<p>Evidence: Sufficiency. An examination of the evidence shows that the plaintiff failed to produce a preponderance thereof in support of the grounds alleged for a divorce, and the judgment of the district court dismissing the action is affirmed.</p>

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

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

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

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

<p>Error to the district court for Sioux county r Jambs J. Harrington, Judge.</p>

<p>1. Pleading: Harmless Error. Where a petition is for money had and received, the answer pleads payment by check, and the reply alleges facts negativing and disputing the payment alleged in the answer, the reply is hot inconsistent with the petition, and it is error to strike out its allegations. But' where proof is admitted of the allegations stricken from the reply, the error is without prejudice.</p> <p>2. Checks: Payment: Evidence: Where a check for $450 was drawn by a depositor in a hank upon her deposit, payable to the same hank or order, its indorsement by the hank, and return to the drawer as paid, is prima facie evidence of the receipt by thé bank of the amount evidenced by the check. It is not conclusive, but is open to explanation or denial.</p> <p>3. Burden of Proof. Where a depositor draws a check upon a general deposit in a hank payable to the hank or order, the purpose being, as the depositor claims, to change a general, deposit subject to check into a time deposit in the same bank, and the check is returned indorsed paid, and the hank seeks to avoid liability by a plea of payment, the burden of proof is upon the bank to show that the amount of the check was paid at the depositor’s request to a third party.</p> <p>4. Evidence offered as to other transactions, held, properly rejected' as “res inter alios acta.”</p> <p>5. Evidence. Where the hand to pay is also the hand to receive, payment may be made by a transfer of credits upon the hooks of a bank.</p> <p>6. Instruction. Where a depositor claims that a cheek for $450, payable to the “First National Bank,” was given by her to the same bank for the purpose of changing her general deposit therein into a time deposit, and the only controversy is whether or not a certain “time check,” signed by the president of the bank by his individual name alone, was fraudulently delivered to her in exchange for the check instead of a certificate of deposit, or whether the check was paid, the money loaned by her to the 'bank president individually, and the “time check” given by him as evidence of his own debt, it is error to instruct the jury that before the plaintiff can recover she must prove “not only that the $450 check was fraudulently procured from her, but that the time checks given her were fraudulent,” since the plaintiff does not claim there was fraud in procuring the check.</p>

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

<p>Original application for a writ of mandamus to compel respondent to place names of candidate's on ballot.</p>

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

<p>1. Attorney and Client: Sale to Attorney, Setting Aside. AVhere an-attorney, by statements and representations made to- his clients-as to the condition and value of their land, the subject of the litigation, procures the sale thereof to be made to a third party for whom he is at the same time acting in that capacity, for an inadequate price, and immediately takes a half interest therein for himself, paying one-half of the consideration, a court of equity will set aside the transaction and the conveyances, and restore the estate to the vendors on the repayment of the purchase price, with interest at seven per cent, per annum.</p> <p>2. Public Policy. This rule is not necessarily based on fraud, but is grounded on considerations of public policy, and prevails although the attorney be innocent of any intention to deceive and intends to act in good faith.</p> <p>3. Set-Off. In such a case the vendors may set off the rents and profits of the real estate, if any, which the vendee has collected while holding the title thereto, against the purchase price required to be repaid.</p> <p>4. Case Overruled. The first point of the syllabus in Levara v. MoNeny, 5 Neb. (Unof.) 318, and sc much of the opinion therein as conflicts with the rule announced herein, is overruled.</p>

<p>Sale: Delivery. The general rule, subject to exceptions, is that a delivery to a common carrier is a delivery to a vendee or consignee. ,</p>

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

<p>1. Pleading. The plea nil debet under our system puts in issue no fact and ca'nnot he regarded as a defense. Baldwin v. Burt, 43 Neb 245, followed and approved.</p> <p>2. Appeal: New Issue. Where in the county court defendant interposed a defense of an account stated, and on appeal to the district court attempted to amend his answer by including the defense of accord and satisfaction, held, the latter plea to he a new ground of defense not pleaded in the court below.</p> <p>3. Judgment on Pleadings. Action of tRe trial court in entering judgment on the pleadings examined, and approved.</p>

<p>1. Review. Action of the trial court in excluding evidence examined, and approved.</p> <p>2. Evidence examined, and held sufficient to sustain the judgment of the trial court</p>

<p>Pledge: Foreclosure: Deficiency Judgment. In an action to foreclose the lien of a pledge, the district court has jurisdiction to render judgment for a deficiency remaining after the pledged property has been exhausted.</p>

<p>1. Juror: Challenging. If the voir dire examination of a juror considered as a whole does not show incompetency, a challenge upon that ground is properly overruled, although during his examination statements are made which, if unexplained, might he ground for challenge.</p> <p>2. Verdicts in criminal cases should be certain and import a definite meaning free from ambiguity. If the meaning of the verdict in the light of the whole record is clear, beyond any reasonable doubt, it is sufficient.</p> <p>3. Juror: Challenging. It is not ground for challenge that a juror is more than sixty years of age.</p> <p>4. Verdict: Signing. If the record shows that T. Blankenbecliler was a member of the jury, and the verdict is signed “T. P. Blankenbeckler, Foreman,” it will be presumed that the person so signing was the same person designated as T. Blankenbeckler in impaneling the jury.</p> <p>5. Instruction: Reasonable Doubt. The instruction attempting to define a reasonable doubt in Spies v. People, 122 111. 1, has been frequently disapproved by this court; but when it is carefully guarded, and it appears from the whole record that the jury have not been misled thereby, the giving of this instruction will not require a reversal.</p> <p>6.-: Review. It is not error to refuse a requested instruction if the same matters are substantially covered by instructions given.</p> <p>7. Venue: Evidence. If it appears from the whole evidence, beyond a reasonable doubt, that the crime charged was committed in the county of the trial, the venue is sufficiently proved.</p> <p>8. Burglary: Evidence. In a prosecution for burglary, the charge that it was committed in the night season is to be proved like any other fact. If the whole evidence shows that fact beyond a reasonable doubt it is sufficient.</p> <p>9.-- — : — -. In a criminal case it must be proved beyond a reasonable doubt that the defendant committed the crime charged. If the fact that the crime charged was committed is proved beyond all doubt, it is still not sufficient to prove that the defendant had opportunity to commit it, and may have been the guilty party, but, if the evidence excludes all reasonable doubt, it is sufficient.</p> <p>10. Sentence. It is in the discretion of the trial court, upon a vedict of guilty, to prescribe the punishment within the limits fixed by the statute. This court will not ordinarily interfere with that discretion unless it is manifest from the evidence that the punishment inflicted is excessive. When two or more defendants are tried together for the same offense, and different penalties -are inflicted, and it appears from the evidence that the defendant receiving the least punishment is at least equally guilty, it may become necessary for this court to determine from the evidence, as an original question, whether the punishment of the defendants or some of them should be reduced.</p>

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

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

<p>Evidence in an action to recover damages for personal injuries examined, and held to justify a peremptory instruction of a verdict for tlie defendant.</p>

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

<p>Equity: Remedy at Law. If in the rendition of a decree of foreclosure of a mortgage the court errs in assessing a lien as prior thereto in favor of one of the parties, the mortgagee has a speedy and adequate remedy by appeal or error, and equity will not subsequently interpose.</p>

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

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

<p>1. Will Contest: Insanity. An. undue prejudice based on some reason is not an insane delusion.</p> <p>2. Action of the trial court in excluding evidence examined and approved.</p> <p>3. Costs. The discretion conferred on the courts by section 623 of the code in taxing costs is not arbitrary, but a legal one to be exercised within the limits of legal and equitable principles. Wallace v. Sheldon, 56 Neb. 55, followed and approved.</p> <p>4. -. Held, That in the instant case it was inequitable to tax the fees of the guardian ad litem of a minor beneficiary under the will against the contestant.</p>

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

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

<p>1. Cities: Sewers. Where a city has in good faith adopted and carried out the plans for a sewerage system of a competent sanitary engineer of high standing in his profession, it is not chargeable with the cost of additional or substituted improvements made necessary by the growth of the city.</p> <p>2. Evidence examined, and held to show that the inadequacy of the six-inch sewer between 12th street and 16th street in the city of Omaha was largely caused by the increased capacity required by reason of business buildings of large size having taken the place of residences at that locality.</p> <p>3. Assessment. The power to make public improvements and to assess the cost thereof upon property specially benefited thereby conferred upon municipal corporations is a continuing power and may be exercised whenever the public need demands.</p> <p>4. Notice: Waiver. When a person files a protest against a special assessment with the board of equalization before the time fixed in the published notice for the meeting of the board, he thereby waives any defect in the notice.</p> <p>5. Cities: Powers: Assessment. A city, under certain circumstances, has power to create a new sewer district within the limits of a larger district and to assess the cost of a new sewer in said district upon the abutting property therein according to special benefits received.</p> <p>6. Assessment. Under the evidence in this case, held that the special benefits were practically confined to the property within the new district, that each lot therein was specially benefited, and that the front-foot method was not inequitable under the circumstances.</p> <p>1. Cities: Sewers: Assessment. All of the property in a sewer district which is benefited by the improvement should bear its fair proportion of the necessary expense of rebuilding and repairing the sewer, or a part of the sewer, in such district. The city council cannot determine in advance, and without a hearing, that a part only of the property in the district will be benefited, and for the purpose of making the improvement create a new sewer district embracing only such part of the property and assessing the cost to the property benefited.</p> <p>2. Assessment: Injunction. A party complaining of an unlawful division of a sewer district, and seeking on that ground to enjoin the collection of special assessments against his property in a new sewer district so formed, must show that he has been in some way affected to his substantial injury by such division.</p>

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

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

<p>Administrator’s Sale: Vacating. In an administrator’s sale the property sold for $3,625. After sale, and before confirmation, $4,000 was offered for the property by a responsible bidder, and the ■ -evidence showed that it would sell for that amount at a resale. The district court set the sale aside on the motion of the administrator and ordered a resale. Held, That the order setting the sale aside and ordering resale was proper.</p>

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

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

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

<p>1. Contradictory Verdicts: Review. When contradictory verdicts are returned in favor, respectively, of two several parties, it is the duty of the court to ascertain whether there is any other error, and, if not, which of them, if either, is such only as could be upheld by the evidence, and if either of them is such, to render a judgment of affirmance thereon, disposing of the other as the law and the relations of the parties may require.</p> <p>2. -: Judgment. When, in a joint action against a principal and his agent to recover damages for alleged negligence of the agent in conduct strictly within the performance of his duty, there is a verdict in favor of the latter that is free from error and is such as could alone be supported by the evidence, there should be a judgment for the principal also, although upon the same record and in the same case there may be a verdict against him.</p> <p>X, Inconsistent Findings: Review. Two inconsistent findings of a jury upon the same issue, if based upon conflicting evidence, nullify each other. Such findings will not support a judgment. If one is the only finding possible under the evidence, a judgment thereon in favor of one of two joint defendants will be sustained, and a finding upon the same issue against the other defendant, being wholly unsupported by the evidence, will he reversed.</p> <p>2. Reversal: Practice. It is not the practice of this court to dismiss a law action upon reversing a judgment of the district court for want of evidence to sustain it. The cause is remanded to the district court for further proceedings.</p>

<p>1. A joint assignment of error in a petition made by two or more persons which is not good as to all who joined therein will be overruled as to all.</p> <p>2. Review. Upon an appeal in an equity case in which there have been special findings of fact, but in which no bill of exceptions has been preserved, only such findings will be considered as are embraced within the issues; and the decree, if supported by the pleadings, will be upheld if, and in so far as, it is not in irreconcilable conflict with such findings.</p> <p>3. Cross-Appeal. An appellee may, by complaint in the nature of a cross-appeal, be relieved from erroneous or unjust conditions imposed upon him by the decree appealed from.</p> <p>Appeal: Review. When the trial court, in an action in equity, makes special findings of fact, and no general finding, and the evidence is not preserved, the sole question for this court on appeal is whether the judgment is supported by the pleadings and the special findings. If in such case there is no finding upon a material issue, that issue must upon appeal be determined against the party on whom the burden of establishing such issue rested.</p>

<p>Decedent’s Estate: Filing Claims. Even if Fitzgerald v. First Nat. Bank, 64 Neb. 260, shall not be adhered to, a county court ought not to permit a claim to be filed against the estate of a deceased person which is not presented until more than eight months have elapsed since the expiration of the time fixed by an order of the court for that purpose, in the absence of a showing of diligence and of unavoidable mistake or accident, or of fraud of a nature analogous to that which warrants the interposition of a court of equity to grant a new trial in ordinary cases.</p>

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

<p>Contract: Construction. A contract set forth in the petition held to be a guaranty of payment and not of collection merely of the sum of money mentioned therein.</p>

<p>1. Elections: Ballots. A voter who has complied with the statute by obtaining from the election board a ballot indorsed in writing with the names of two members of the board, both of .whom are ostensibly and, as he honestly supposes, are really judges, will not be deprived of his vote by the mere fact that one of such names is that of a clerk of the election.</p> <p>2. Minor irregularities by members of an election board, voters and bystanders at a polling place, unaccompanied by fraud or conduct affecting the integrity of the ballot, will not operate to quash the election.</p> <p>3. Marking Ballots. Irregular and defective or unauthorized markings of a ballot, apparently the result of innocent awkwardness, inattention or ignorance, and apparently not intended or made use of for the purpose of subsequent identification, will not justify the rejection of such ballots, if the intent of the voter can be ascertained therefrom.</p>

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

<p>1. Election Contest: Record. The record of a popular election is made up and finally completed at the polls and nothing can after-wards be taken therefrom or added thereto, and a trial judge cannot exclude any part of it from evidence in the trial of an election contest. Maude v. Brown, 59 Neb. 382, so far as inconsistent herewith, overruled.</p> <p>2. Trial De Novo, On appeal from the decision of a district court in a contested election, the entire record should be brought up, and it will be considered by this court de novo.</p> <p>3. Pleading. On an appeal from the decision of a county court in a contested election, it is not requisite to file new pleadings in the district court.</p> <p>4. Marking Ballots. On the trial of a contested election ballots will not be treated as void simply because of irregular or unauthorized markings or mutilations which appear to have been innocently made as the result of awkwardness, inattention, mistake or ignorance, if the lawful intent of the voter can be ascertained therefrom.</p>

<p>1. Evidence examined, and held to show no actionable negligence on the part of defendant</p> <p>2. Case Distinguished. Omaha Street R. Co. v. Larson, 70 Neb. 591, examined, approved and distinguished.</p> <p>3. Harmless Error. Action of the trial court in excluding evidence examined, and held not reversible error.</p>

<p>1. Appeal Bond: Validity. A bond given in an attempted appeal to tbis court from an order of the district court awarding a writ of assistance in a mortgage foreclosure proceeding, conditioned for tbe payment of rent, is valid as a contract where the obligor has by reason of the bond retained possession of the premises pending such appeal. United States Fidelity cG Guaranty Co. v. Ettenheimer, 70 Neb. 147, followed and approved.</p> <p>2. Appealable Order. An appeal will lie from an order awarding a writ of assistance in a foreclosure proceeding after the sale has been confirmed and deed ordered, subject to the conditions of an appeal from an order confirming the sale.</p> <p>3. Judgment: Reversible Error. The failure of the clerk, in recording a judgment, to certify that certain of the defendants are sureties, where such is the fact, is reversible error, though not presented to the trial court. Blaeo v. State, 58 Neb. 557, followed and approved.</p> <p>1. Appealable Order: Supersedeas. An order granting a writ of assistance in a foreclosure suit, after decree, sale, confirmation thereof and the execution of a sheriff’s deed, directing the sheriff to put the purchaser in possession of the premises, is a final order and is appealable; but is not such an order, within' the meaning of the third subdivision of section 677 of the code, as may be superseded by giving the waste bond therein provided for.</p> <p>2. Discretion of Court. The court making such an order may, in his discretion, allow it to be superseded upon condition that the appellant give a bond for the payment of a reasonable rent for the use and occupation of the premises during the pendency of his appeal.</p>

<p>1. Limitation of Action. Tbe four years’ period of limitation fixed by statute on actions to set aside fraudulent conveyances is not tolled by tbe death of tbe fraudulent grantor.</p> <p>2. Evidence examined, and held to support tbe judgment of tbe district court.</p>

<p>Mortgage: Extension: Husband and Wife: Evidence. Where .the legal title to mortgaged premises is in the husband, and his wife joins in the execution of the mortgage to secure a note signed by the husband alone, and the time of payment of such note is extended without the knowledge or consent of the wife, and the wife claims ownership of the mortgaged property under an antenuptial agreement with the husband, she must show that the holder of the note or his privies had notice of her claim of ownership of the premises at the time the extension was granted to entitle the property to stand in the position, of a surety.</p>

<p>1. Evidence examined, and held sufficient to sustain the judgment of the trial court.</p> <p>2. Habeas Corpus: Custody of Child. The right of a parent to the custody of a minor child of tender years is not lightly to be set aside, and it should not be do'ne where unfitness is not affirmatively shown or a forfeiture of such right clearly established. Nerval v. Zinsmaster, 57 Neb. 158, followed and approved.</p>

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

<p>An incumbrance includes all interest in tbe land wbicb may subsist in a third person to the diminution of the value of the land, but consistent with the passing of the fee by conveyance; hence, an outstanding lease for a period of years is an incumbrance.</p>

<p>1. Wills: Bequests: Trusts. Where a person, knowing that a testator with whom he has confidential relations in leaving him a devise or bequest intends it to be applied for the benefit of another, either expressly promises or by his action at the time implies that he will carry the testator’s intention into effect, and the property is left to him with the faith on the part of the testator that his promises will be kept, he will be held as trustee.</p> <p>2. Equity, in such case the will has full effect by passing an absolute legacy to the legatee, but equity, in order to defeat fraud, raises a trust in favor of those intended to be benefited by the testator, and compels the legatee as a trustee ex maleficio to turn over the gift to them. The court acts not upon an express trust created by the testator but, on account of the fraud, upon the conscience of the devisee.</p> <p>3. Elements of Trust. A trust must be reasonably certain in its terms as to the property embraced in the -trust, the beneficiaries, the nature of the estate they are to have, and the manner in which the trust is to be executed, and when any of these elements is indefinite or uncertain the trust must fail.</p> <p>A -. Whenever the objects of the supposed recommendatory trust are not certain or definite, whenever the property to which it is to attach is not certain or definite, whenever a clear discretion or choice to act or not to act is given, and whenever the prior dispositions of the property import absolute and uncontrollable ownership, words of recommendation or request will not create a trust.</p> <p>5. -. Unless the property upon which the trust is to operate can be ascertained with reasonable certainty, an express trust will fail, and so of a constructive trust, whose extent and limits are the same as the express trust which it was attempted to create. Whether express or constructive, the same certainty as to the property is necessary.</p> <p>6. Case Distinguished. Little v. Giles, 25 Neb. 313, distinguished.</p> <p>Wills: Bequests: Conveyances: Tbusts. B a short time before his death, which he knew must soon occur, devised and bequeathed to his wife (they both being advanced in years and childless) certain of his real estate and all of his personalty, to have a’nd to hold absolutely and unconditionally in her own right forever. The remainder of his realty, being the major portion of his estate, was devised to W, trustee, upon the following trusts: (1) To pay out of same the expenses of maintaining the trust. (2) To deposit to the credit of his wife for her own use the net income therefrom. (3) On request of the wife in writing to sell any part thereof and deliver to her for her own use absolutely the proceeds, or otherwise invest the same in the name of the trustee for the purposes therein specified as she may direct. (4) Upon the decease of the wife to divide whatever of his said estate as shall then be remaining between the brothers and sisters of the testator (naming them) «hare and share alike, and the issue of deceased brothers and sisters, if any. Before the will was executed the wife was called into the room and it was read over to her, the testator asking if it suited her, and she answered in the affirmative. He then made certain oral requests and directions with reference to his estate, the substance being that he had placed her (his wife) in comfortable circumstances so that she would not want for anything; that he wanted her to live as they were living, and at the end of every year to divide the surplus among his people; that her people were in good circumstances, but his people were poor, and that he wanted her to make a will so that at her death his estate would go to his brothers and sisters; that if she wanted to give to charitable purposes say five or ten thousand dollars, that would be all right, but that he wanted the bulk of his estate, his entire estate, to go to his brothers and sisters. To all this she expressed her assent and entire willingness to carry out the testator’s wishes. The wife shortly after the execution of the will expressing fear that it would' be contested, the husband by instruments of conveyance and assignment absolute and unconditional in terms transferred to her substantially all the property going to her directly by the terms of the will. After the death of the testator the wife refused to comply with the parol requests and directions made at the time of the execution of the will and assented to by her, and disavowed their binding and obligatory character on her, asserting that she had an uncontrolled discretion as to whether any of the property or the income therefrom passing by the will should go to the collateral heirs of the testator. Held: (1) Conceding that the wife became the general owner of the property embraced in the express trust because of the power given to alienate and acquire legal title thereto and to the proceeds thereof in her own right, that a constructive trust arose in favor of the collateral heirs as to all such property, and that the wife should be charged as a trustee ex ■maleficio. (2) That her interest in such property, the proceeds thereof and the net income therefrom was limited to the amount reasonably necessary and required to support and maintain her in the comforts and style of living to which they had been accustomed, and to give not to exceed ten thousand dollars for charitable purposes, the equitable title to and interest in the remainder passing to the collateral heirs named in the will, and to be distributed between them according to its «terms and the parol requests and directions of the testator. (3) That the property to which the constructive trust attaches is sufficiently definite and certain as to render the trust capable of execution and enforcement, and that our former holding to the contrary should be modified accordingly.</p>

<p>1. Corporations: Receivers. A receiver will not readily be appointed in a stockholder’s suit for mismanagement of corporate affairs where neither the corporation nor the corporate officers are insolvent and the corporation is a going concern profitably conducted.</p> <p>2. Equity. Where it is within the ordinary powers of a court of equity to grant sufficient relief to a complaining minority stockholder who alleges mismanagement by corporate officers, a receiver will -not he appointed.</p>

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

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

<p>1. Review: Evidence. Where the testimony is conflicting and is fairly submitted to the jury, a new trial will not be granted if there is evidence sufficient to sustain the verdict.</p> <p>2. Verdict, Setting Aside. To justify the court in setting aside the verdict of a jury because it is not sustained by the evidence, it is not sufficient that the court might have reached a different conclusion from the evidence, than that reached by the jury.</p>

<p>Appealable Order. A ruling upon an interlocutory matter is not appealable until the action itself is finally disposed of.</p>

<p>1. Newspaper of General Circulation. A newspaper to be of general circulation, within the meaning of section 47 of the criminal code, must circulate generally beyo'nd the county where it is published. It is not necessary that it circulate in every county of the state, but its circulation must extend and be general beyond tfie county where it is published.</p> <p>2. Libel: Defense. In a criminal prosecution under the provisions of section 47 of the criminal code, for publishing an alleged libelous article, the truth of the article, when established, is a perfect defense.</p> <p>3. Information: Amendment, The court may, in its discretion, before trial, permit the county attorney to amend a criminal information, provided the amendment does not change the nature or identity of the offense charged, and the information as amended charges no other crime than the one on which the accused has had a preliminary examination.</p> <p>4. "Witness: Cboss-Examination. By statute the accused is made a competent witness in his own defense; and when he avails himself of that privilege he may be cross-examined the same as an ordinary witness as to matters brought out on his direct examination. But neither the prosecuting attorney, nor private counsel assisting him, should be permitted to cross-examine the accused as to matters not brought out or provoked by his direct examination, which are wholly incompetent and immaterial, and which plainly tend to disgrace him before the jury.</p>

<p>Error to tbe district court for Chase county. Robert C. Orr, Judge.</p>

<p>Eminent Domain: Roads. County authorities in laying out and establishing a public road may proceed against one in possession and apparent sole ownership of the land sought to be taken, and will be discharged from liability upon making compensation to such person in good faith and pursuant to a judgment of the court.</p>

<p>1. Administrator: Mobtsaoe: Subrogation. One who has loaned money to an administrator upon a void mortgage, a part of which was used to pay a previously executed void mortgage, is not entitled to subrogation to a lien discharged with the proceeds of the latter mentioned mortgage.</p> <p>2. Public Officials: Contracts: Liability. Persons contracting with public officials, deriving their authority exclusively from a statute, are charged with knowledge of the extent and limitations of such authority, and, in the absence of bad faith, contracts entered into in the supposed exercise of public powers and functions so derived will not impose upon the officials executing them any personal liability to the party contracted with.</p> <p>3. An administrator appointed under the statute is not in any sense an agent of his intestate, but is a public trustee, of defined and limited powers.</p> <p>1. Quieting Title: Equity. A party seeking relief from a cloud upon the title to land created by a void mortgage may be compelled to do equity as a condition precedent to relief, even though the holder of the mortgage could not enforce the same by foreclosure.</p> <p>2. Pleading. Where a petition alleges the rendition of a judgment, which is not denied, no proof is necessary to establish the fact.</p>

<p>Cities: Offices. Under the statute governing cities oí the second class having- less than 5,000 inhabitants, the offices of the chief of police and overseer of streets are separate or separable, although both may be held by one person at the same time.</p>

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

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

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

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

<p>1. Specific Performance. A party to a contract of sale of real estate for cash upon the delivery of the deed is excused from performance if the other party neglects or refuses to pay when the deed is ready for delivery and requests an extension of the time for payment.</p> <p>2. Kescission. It is optional with a vendor to rescind a contract of sale when the vendee fails to perform the same according to its terms, and a demand for the return of a deed sent to the vendor’s agent, to he delivered upon payment of the money — -the same person being the agent of the vendee — together with a notice that the “deal is off,” is an exercise of the option and a rescission oi the contract.</p> <p>3. Delivery of Deed. Where the agent of a vendor receives a deed for the purpose of delivery upon payment of the consideration, without disclosing that he is also agent for the vendee, and places the deed upon record after he has been notified by the vendor that the contract has been rescinded for non-performance, no legal delivery of the deed has been made, and the grantee acquires no title thereby.</p>

<p>1. County Court. Jurisdiction. A county court does not lose jurisdiction in an action, not within the jurisdiction of a justice of the peace, by reason of the fact that at the hour to which such action had been continued the county judge was not present in his office and did not appear for more than one hour thereafter.</p> <p>2. Judgment: Collateral Attack. The fact that a county judge in an action pending before him not within the jurisdiction of a justice of the peace, was not present in his office at the hour to which such cause had been continued and for more than one hour thereafter, and that he thereafter, in the absence of the defendant, rendered judgment in said cause against the defendant as of the hour and day to which said cause had been continued, does not render such judgment void or open to collateral attack.</p> <p>3. -: Revivor. The fact that the transcript of a judgment rendered in a county court was filed in the office of the clerk of the district court after the judgment had become dormant did not prevent the district court from acquiring jurisdiction of the proceedings to revive the judgment. Purer v. Holmes, ante, p. 393.</p>

<p>Review: Law op Case. It is the settled doctrine in this jurisdiction that a legal principle involved in the trial of a case, when once determined, becomes thereafter the law of the case, binding not only upon the trial court, but this court as -well, and will not ordinarily be reexamined in a subsequent review of the proceedings of an inferior court had in the further trial of the action.</p>

<p>1. Nuisance: Injunction. The process of injunction cannot be availed of by a private citizen to abate a purely public nuisance from which he suffers no special or peculiar injury of a continuing nature for which an action at law will afford him no adequate remedy or redress.</p> <p>2. Jurisdiction. It is not enough to confer jurisdiction upon equity that the plaintiff has suffered damages special and peculiar to himself and in which the public do not share, but such damages must be of such character as to be incapable of being measured and compensated in damages.</p> <p>3. Special Damages. Damages to an individual are not rendered special or peculiar within the meaning of the above mentioned rule by the fact that they exceed those inflicted upon the general public in degree, but to have that character they must differ from the latter in kind.</p>

<p>Pleading: Harmless Error. New matter pleaded in a reply is constructively denied by the statute, and leave to amend an answer so as to put such matter formally in issue, although erroneous, is error without prejudice.</p>

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

<p>1. Mechanics’ Lien. To enforce a mechanics’ lien for material, labor, etc, used in an improvement on real estate, the evidence must show that the contract for such material or labor was made with the owner of the premises or his duly authorized agent. Moore v. Yaughn, 42 Neb. 696, followed and approved.</p> <p>2. Evidence examined, and held sufficient to sustain the' judgment of the trial court.</p>

<p>■Writ of Assistance. Where oh an application for a writ of assistance the party in possession of the premises makes a litigable claim of ownership thereof in fee, and it appears that his rights, if any, are unaffected by the decree of foreclosure and sale sought to be aided thereby, the writ should be refused.</p>

<p>1. Trover will lie for the wrongful conversion of shares of stock in a corporation.</p> <p>2. Conversion: Shares oe Stock. Any act of dominion wrongfully exercised over another’s property in denial of his rights or inconsistent with them may be treated as a conversion. And this is true of shares of stock as of any property.</p> <p>3. -: -- — . When under its by-laws or under a statute it is necessary that the transfer of the stock be made on its books, and the corporation wrongfully refuses to make the transfer, such refusal is a conversion of the stock.</p> <p>i. The powers of a corporation in effecting its objects are as broad and comprehensive as those of an individual, when not expressly prohibited.</p> <p>5. Lien on Shares of Stock. A corporation has no lien upon the shares of its stockholders for debts due from them to the company, unless such lien is provided for by statute or by the charter or by-laws of the corporation.</p>

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

<p>1. Negligence: Question eor Jury. If the driver of a vehicle who arrives at a street intersection and who sees an approaching car is justified in believing that there will be sufficient time for him ■ to cross the track before the car, if run at its usual and ordinary-rate of speed, will reach the point of crossing, he cannot be said as a matter of law to be guilty of negligence in attempting to cross, and the question is a question of fact for the jury to be determined from all the evidence before it.</p> <p>2. Evidence: Review. The exclusion of testimony to show that the car might have been seen at a greater distance is not erroneous, since the question was not whether the plaintiff might not hare seen the car at a greater distance, hut whether he was guilty of negligence in attempting to cross with the car at the distance it actually was when he saw it.</p>

<p>Highway: Prescription. To establish a highway by prescription there must be a user by the general public under a claim of right, and which is adverse to the occupancy of the owner of the land, of some particular or defined way or track, uninterruptedly, without substantial change, for a period of time necessary to bar an action to recover the land. Engle v. Hunt, 50 Neb. 358.</p>

<p>Appeal: Review. Alleged erroneous rulings in the trial of a ease in the court below regarding the rejection or admission of evidence will not, in proceedings by appeal, be reviewed in this court</p>

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

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

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

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

<p>1. Deed as Mortgage. The test whereby to determine whether a deed absolute on its face should be held to be a mortgage is whether the relation of the parties to each other as debtor and creditor continues. If it does, the transaction should be treated as a mortgage, otherwise not. Riley v. Starr, 48 Neb. 243.</p> <p>2. Evidence examined, and held insufficient to sustain a finding that a deed absolute on its face was intended to operate as a mortgage.</p> <p>Deed: Action to Redeem. Where a tract of land has been conveyed by a deed absolute in form to satisfy and pay the mortgage liens existing thereon, a subsequent parol promise to reconvey it to the grantor, without any consideration to support it, will not sustain an action to declaro'the deed a mortgage and redeem from the liens which have been canceled and treated as paid.</p>

<p>1. Pleading: Demurrer. The rule that permits conclusions of law to be disregarded when the sufficiency of the facts pleaded to constitute a cause of action or • defense is called in question, has no application to conclusions of fact.</p> <p>2.-: Sueitcienct. When thus assailed the pleading is good if the ultimate facts constituting a cause of action or defense are alleged. If the facts thus alleged do not make the pleading sufficiently definite and certain the remedy is by motion.</p> <p>3. Witness: Confidential Communications: Waiver. The prohibitions in section 333 of the code against a physician’s testifying to confidential disclosures made to him in the course of his professional employment, are for the benefit of the patient, who, by the express provisions of section 334 of the code is permitted to waive them.</p> <p>4. Waiver. It is not necessary that such waiver be made at the time of the trial, it may -be included in and made a part of the contract sought to be enforced in the action in which such testimony is offered.</p> <p>5.-: Insurance Contract. A stipulation in a contract of life insurance to the effect that the proofs of death shall consist i'n part of the affidavit of the attending physician, which shall state the- cause of death and such other information as may be required by the insurer, constitutes a waiver within the meaning of said sections, and renders the attending physician a competent witness as to the confidential disclosures made to him by the assured concerning his last sickness.</p> <p>6. Evidence. Statements of fact fairly indicative of a relevant bodily condition of the declarant at 'the time of the declaration are admissible as evidence of the existence of such condition, although made a considerable time after the injury was received.</p> <p>7.-: Harmless Error. The admission of the testimony of the wife as to communications made to her by her husband in his last sickness, held not prejudicial error under the circumstances disclosed by the record in this case.</p>

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

<p>Law of Case. Where the supreme court has, in a proper proceeding declared a rule of law applicable to the facts, such holding will ordinarily be treated as the law of the case in all subsequent proceedings involving the determination of that question.</p>