Volume 74 — Nebraska Reports

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

<p>1. larceny Is a felonious taking and carrying away of the personal goods or .chattels of another with intent to deprive the owner of his property therein and to appropriate the same to the use of the taker. Asportation, nonconsent of the owner, and a felonious intent to thereby convert the stolen property to the defendant’s own use are necessary elements of larceny.</p> <p>2. Evidence examined, and held insufficient to sustain a verdict of guilty of the crime charged in the information against the defendant in the case at bar.</p>

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

<p>1. Public Officers: Fees. The statute allowing a public officer a fee of twenty-five cents for “each certificate and seal” does not contemplate that the officer must formulate a statement of facts to which he certifies. If he, upon request, performs such service, he will be entitled to reasonable compensation therefor. The fee allowed by the statute is for the act of certifying to the paper and affixing his seal thereto.</p> <p>2.-: -. The clerk of the district court cannot be required to search the records of his office to ascertain what liens, if any, exist against lands described in an abstract of title, and make and enter upon, the abstract a compilation and statement of the result of such search. If he performs such service, he is entitled to reasonable compensation for making such statement and entering it upon the abstract. He is not entitled to a fee for making a search of his records necessary to the performance of another service “to which a fee is attached.”</p> <p>3. Illegal Fees: Action fob Penalty. Section 34, chapter 28, Compiled Statutes, 1903, prescribing a penalty for taking illegal fees by a public officer is highly penal. In an action to recover such penalty, if it appears that the fee received was exacted by the officer for services that he was not required to render as such officer, and for which he was entitled to reasonable compensation, together with other services for which it would have been illegal to exact a fee, it will not be presumed (in the absence of proof upon that point) that the fee exacted was more than the service for which he was entitled to compensation was reasonably worth.</p>

<p>1. Insurance: False Statements. An untrue representation in an application for insurance will not vitiate The policy unless it is pf such, a nature that it might have been an inducement tp i§sue the policy. If it appears from the whole record that the representation could not have been relied upon by the insurer it will be disregarded.</p> <p>2. Waiver. It is competent for the insured to waive all claim under the policy in case of death resulting from smallpox, and to make such waiver binding upon the beneficiary under the policy by apt words for that purpose expressed in the application.</p>

<p>Error to the district court for Douglas county: AIjEXander C. Troup, Judge.</p>

<p>1. Judgment: Nunc Pro Tunc Entry. The district court máy enter a judgment nunc pro tunc on motion and notice, and the fact that the application therefor is not made for a considerable time after the judgment was rendered does not deprive the court of jurisdiction.</p> <p>2. Foreclosure: Lauiies. A plaintiff in a foreclosure suit, who appears to have been diligent in endeavoring to subject the mortgaged property to the payment of the mortgage debt and procure a deficiency judgment, and who, to that end, has proceeded as rapidly as the nature of the case and the rules of procedure will permit, ca'nnot be said to be guilty of laches.</p> <p>3. Judgment: Nunc Pro Tuno Entry. An entry made by the clerk of the district court, which has been held by this court insufficient to constitute a final judgment, is not sufficient to constitute a bar to an application for the entry of a judgment nunc pro tunc.</p> <p>4. ■=-: Findings. Such a judgment, however, must conform to and be no broader in its terms than the judgment actually rendered; and where the decree so entered contains findings not supported by the evidence introduced on the hearing of the application for its entry, it will be reversed as to such findings.</p>

<p>1. Candidates for Office: Libel. The manner in which a public officer conducted the duties of his office is a fair subject for comment by the press when he is a candidate for reelection, and a newspaper is justified in calling the attention of the public to illegal charges made by him as a reason why he should not again be chosen.</p> <p>2. Libel. Where a newspaper states, in substance, that the sheriff of the county, who is a' candidate for reelection, had obtained from the county a certain sum of money upon a false and “imaginary” account for expenses which he had never incurred, this is a charge of moral turpitude and dishonesty, and, if false, is libelous per se.</p>

<p>1. Contract: Acceptance. Where a -written order for threshing machinery contains a condition that it shall not be binding until accepted by the officers of the selling corporation, the signer of the order is not bound by stipulations or limitations therein until its acceptance by such officers.</p> <p>2. Pledge. Where a lot of threshing machinery was consigned to the manufacturer at a point where it was expected to sell the same, and at the request of the manufacturer’s general agent, who was in control of the property, money was advanced by an intending purchaser to pay freight charges, and, nó sale being made, the agent pledged the machinery co the persons advancing the money until the same was repaid, the pledgee has a lien upon the property to thac extent, and the owner is not entitled to its possession until the freight charges are paid.</p>

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

<p>Appear from the district court for Fillmore county: Lesrie Gf. Hurd, - Judge.</p>

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

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

<p>Error to the district court for Lancaster county: Albert J. Cornish, Lincoln Frost and Edward P. Holmes, Judges.</p>

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

<p>1. Quitclaim: After-Acquibed Title. If a grantor of quitclaim obtains an instrument that evidences and fortifies tbe very estate or interest wbicb his deed purports and was intended and effectual to convey, such instrument inures to the benefit of his grantee.</p> <p>2. Purchaser: Good Faith. “A purchaser with notice from a prior purchaser who was entitled to protection as a dona fide purchaser without notice, is himself entitled to protection against the previous equitable claim, which was invalid as against his grantor.” Lake, G. J. in Garland v. Wells, 15 Neb. 298.</p>

<p>A contract between husband and wife, made after and in consequence* of severance of the marital relation and permanent separation, and providing for a division of property, and containing mutual releases of rights and obligations relative thereto, will be respeeted by the courts as presumably fair and valid, and a just and equitable adjustment of the matters of which it treats. But the courts will scrutinize such transactions closely, without too much regard for formal rules of pleading and procedure, and see to it that no unconscionable advantage is taken through fraud or intimidation, or even by reason of ignorance, passion or improvidence.</p>

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

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

<p>Appeal from the district court for Saline county: Leslie G-. Hurd, Judge.</p>

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

<p>1. Attorney’s Lien: Trust Funds. An attorney has a lien for his compensation for professional services and for his disbursements upon moneys received by him on his. Client’s behalf in the course of his employment, and this right of lien is not affected by the fact that the elient' is an executor or trustee and the services were rendered and money received on behalf of the estate.</p> <p>2.--: Asrkement: Review. Where an attorney has filed a lien for professional services rendered in the case, and his client agrees to pay a certain amount in consideration of the release of the lien, and suit is brought upon such agreement, the question of the amount of services performed by the attorney or the terms of the original employment are immaterial, and evidence respecting these matters was properly rejected by the court.</p>

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

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

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

<p>Expert Witness: Compensation. One testifying as an expert on a subject requiring special knowledge and skill, in the absence of a special contract, is entitled only to the statutory fee.</p>

<p>1. Heal Estate Agents: Contract: Statute oe Frauds. A contract whereby one person employs an agent to negotiate for the purchase of real estate is not a contract for the creation of an estate or interest in land, or trust or power over or concerning lands, etc., within the meaning of the statute of frauds.</p> <p>2. Principal and Agent: Trusts. Where one employed to act as the agent for another in the purchase of real estate becomes the purchaser himself, he will be considered in equity as holding the property in trust for his principal, although he purchased with his own money, subject to reimbursement for his proper expenditures in that behalf.</p> <p>3. Title to Land: Equity. The maxim "prior in time, prior in right,” applied in a contest between rival claimants under equitable titles to real estate.</p> <p>4. Evidence examined, and helé sufficient to sustain the findings and decree of the trial court.</p> <p>A broker whose undertaking merely is to find a purchaser at a price fixed by the seller, or at a price which shall be satisfactory to the seller when he and the purchaser meet, is in reality only a middleman, whose duty is performed when the buyer and seller are brought together.</p>

<p>Appeal from the the district court for Clay county: Leslie GL Hurd, Judge.'</p>

<p>Error to tlie district court for Colfax county: James A. GrRiMisON, Judge.</p>

<p>The evidence examined, and held sufficient to justify the submission of the case to the jury.</p>

<p>Okiginal application for a writ of mandamus to require respondent to place relator’s name on official ballot.</p>

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

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

<p>1. Rape. Sections 11 and 12 of the criminal code describe three classes of crimes, each of which is totally distinct from the other two. By section 11 it is declared to be unlawful for any person to have carnal knowledge of his daughter or sister forcibly and against her will. By the first clause of section 12 the act of having forcible carnal knowledge of any woman or female child, other than a daughter or sister, is denounced as a crime; and by the second clause sexual intercourse with a female child under the age of eighteen years, without force and with her consent, is forbidden.</p> <p>2. An information for the crime of rape under the first clause of. section 12 must charge that the act was done with force and against the will or consent of the prosecutrix.</p> <p>3. An information for the crime of rape under the second clause of said section must charge the person upon whom the offense was .committed as being a female child under eighteen years of age, and the accused as being a male person of the age of eighteen years or over; and, in case the prosecutrix is over fifteen years of age, her previous chastity must be alleged.</p> <p>4. Evidence. The state, on the trial of such a case, should not be permitted to introduce evidence of acts of the accused, and statements alleged to have been made by him, which do not tend to corroborate the evidence of the prosecutrix, or impeach or discredit his own testimony.</p> <p>1. Rape. Section 12 of the criminal code, as amended, defines but one crime and prescribes the punishment therefor. The first para- • graph of the syllabus of the former opinion in this case, holding that this section defines more than one distinct offense, is disapproved.</p> <p>2. -: Information. If a man eighteen years of age or upwards is guilty of the sexual act with a female child not over the age of fifteen years, or with a female child under the age of eighteen years and not previously unchaste, the law will presume, without ■ further allegation or proof, that the act was done “forcibly and against her will.” But it is only when the accused is of the specified age that this presumption exists. An information for rape must allege either that the act was done forcibly and against the will of the “woman or female child,” or that the accused was of the age of eighteen years or upwards.</p>

<p>1. Forcible Entry and Detainer: Limitation oe Actions. A grantee of real estate occupied by a third person acquires no greater rights against the occupier than his grantor had. If the right to bring an action of forcible entry and detention is barred as against the grantor, so likewise is it as against the grantee.</p> <p>2. Point Disapproved. Paragraph 3 of syllabus in the former opinion, 5 Neb'. (Unof.) 464, disapproved.</p>

<p>Res Judicata. The plea of res judicata applies not only to the points upon which the court was required by the parties to pronounce a judgment, but to every point which properly belonged to the subject matter of litigation, and which the parties, exercising reasonable diligence, might have brought forward at that time. This rule is not inflexible, and may yield in cases where a good and valid reason or excuse for the failure to allege the facts and seek relief in the former action is shown, but in the instant case such excuse is neither pleaded nor proved.</p> <p>1. Law of the Case. A point necessarily determined by this court upon appeal becomes the law of the case, and, ordinarily, will not be departed from in the further course of the litigation, unless clearly wrong, so that it cannot be supported upon reason or authority.</p> <p>2. -: Petition. When a petition is held by this court to state a cause of action as against a general demurrer, this ruling becomes the law of the case, and will be adhered to upon a second appeal if the cause has been tried in the district court without specific objection to the sufficiency of the petition.</p> <p>3. Creditors’ Suit: Rents. When a conveyance of real estate is set aside as fraudulent at the suit of a creditor, and the land subjected to the lien of his judgment, and is insufficient to pay the judgment, such fraudulent grantee may, in proper proceedings, be co'mpelled to apply upon the judgment the rents and profits of the land which accrued while the land was in his possession under the fraudulent conveyance.</p> <p>4. Suit Pending: Limitation of Actions. While an issue is being litigated in the courts, the statute of limitations will not run in favor of one of the parties to that litigation and against the other as to any claim depending upon the result of that litigation.</p>

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

<p>1. Bona Fide Purchaser. One is not a tona fíele purchaser for value until he has actually paid the purchase price or become irrevocably bound for its payment.</p> <p>2. A trustee in bankruptcy succeeds to the bankrupt’s title to chose3 in action, subject to any defense, abatement or counterclaim to which they would have been liable in the hands of the latter.</p>

<p>Sale: Acceptance. A vendee who accepts and retains goods and consumes them by use, without objection, admits by so doing that they are satisfactorily in compliance with the terms of his purchase as respects character and quality.</p>

<p>1. Notes: Transfer After Maturity. An assignee of tlie payee of negotiable paper after maturity takes tbe same subject to any defense to which it would have been liable in the hands of his assignor.</p> <p>2. Chattel Mortgage: Assignment: Estoppel. If an assignor of a chattel mortgage given to secure a promissory note which is past due at the time of the assignment has, prior thereto, become estopped by his own conduct from enforcing it against an innocent subsequent mortgage for value, his assignee is also estopped.</p> <p>3. Verdict: Evidence. Upon an examination of the record it is found that the veraiet and judgment of the district court are such as the evidence was alone sufficient to support.</p>

<p>Evidence examined, and held not sufficient to sustain the judgment.</p>

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

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

<p>1. Irrigation: Preliminary Work. An irrigation district may contract with a competent engineer to survey and furnish plans for the construction of a proposed ca'nal, and from which' the board of directors of the district may estimate the cost thereof and the amount of bonds to be voted therefor. Such work is preliminary to the work of construction, and the expense thereof is not to be paid out of the construction fund.</p> <p>2. Corporation: Action: Presumption. In an action against a corporation based on a contract, the presumption obtains that the contract is within the power of the corporation to make, and that the officers executing it on behalf of the corporation acted within the law, unless the petition states facts showing the contrary.</p> <p>3. -: -. Where a claim has been rejected or disallowed in part by the auditing board of a corporation, an original action may be instituted on the claim, in the absence of a statute directing other proceedings to enforce it.</p>

<p>Pleadings and evidence examined, and held to require an affirmance of the decree of the district court.</p>

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

<p>Review: Motion fob New Trial. The rule is well settled that the supreme court will not review a judgment of the district court on a petition in error as to errors occurring at the trial, unless the alleged errors are first called to the attention of the trial court hy a motion for a new trial. Smith v. Spaulding, 34 Neh. 128.</p>

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

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

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

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

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

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

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

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

<p>1. Homicide. Where one is assailed in his home or domicile, or the home is attacked, he may use such means as are necessary to repel the assailant from the house, or prevent his forcible entry or material injury to the home, even to the taking of life; but a homicide in such a case would not.be justifiable, unless the slayer, in the careful and proper use of his faculties, tona fide believes, and has reasonable ground to believe, that the killing is necessary to repel the assailant or prevent his forcible entry.</p> <p>2. Domicile. A box stall at a fair ground provided with inside‘fastenings to its doors, which is prepared and used by a man as his office and sleeping apartment, the place where he resides, he having no other place of abode, and which contains his clothing, his money, and all of his belongings, is in legal effect his home or domicile.</p> <p>3. Murder: Defense: Instructions. Where a defendant charged with the crime of murder admits the killing, defends his action as justifiable in defense of his person and his domicile, and introduces competent evidence tending to establish his theory of the homicide, he is entitled to have the jury instructed on the law of such defense.</p> <p>4. Criminal Law: Instructions. It is the duty of the trial judge, particularly in criminal actions, to instruct the jury as to the rules of law governing the disposition of the cause, whether he is re'quested to do so or not; and if a charge to a jury, by omission uo instruct on certain points, in effect withdraws from their consideration an essential issue of the case, it is erroneous.</p>

<p>Application of Lillian Algoe for a writ of habeas corpus.</p>

<p>1. Pleading: Motion. A denial in an answer that the oral contract alleged by the plaintiff was made, together with a statement that a contract was made at the time alleged differing substantially from the one set up by plaintiff, is not subject to a motion to strike on account of changing the issues from a general denial, since the allegation that a different contract was made is a mere matter of evidence, tending to prove that the contract declared . upon was not made. Such allegations may be superfluous and redundant, but do hot change the issue.</p> <p>2. Sale: Delivery. Where coal from a mine in Illinois was ordered from a wholesale coal dealer in Nebraska on December 7, 1901, to be delivered to the buyer at Valparaiso, Nebraska.' for the winter trade, an offer to deliver the same-upon March 28, 1902, is such an unreasonable delay in delivery as to release the buyer from the obligation to take and pay for the same, no good reason for the delay being shown.</p> <p>3. Delivery: Question for Court. In such a case the court may determine whether the offer to deliver was made within a reasonable time as a matter of law, and it is unnecessary to submit the question to the jury for determination.</p> <p>4. Appeal Bond: Amendment. It is not error for the district court to allow ah appellant to file an amended appeal bond within a specified time, to take the place of a bond irregular and defective in form.</p>

<p>1. Adverse Possession: Tacking. Where during his lifetime a husband took possession of certain real estate, claiming title thereto, and lived upon the same with his wife and family as his home, and before the ten-year period of limitation expired the husband died, leaving his widow who continued to reside upon the same as her home, the possession of the widow may be tacked to that of the husband so as to raise the bar of the statute of limitation. Montague v. Marunda, 71 Neb. 805.</p> <p>2.-: -. In such ease the possession of the widow is a continuation of the adverse possession of the husband, and will not be presumed to be adverse to the claims of their children and heirs.</p> <p>3. Possession, by Widow: Presumption. The widow’s right to possession is by virtue of the marital relation, and will not be construed to be independent and hostile to that of her husband’s * heirs, unless by some means she brings to their attention the fact that she .claims to own the property in her own right and adversely to any right derived through her husband.</p> <p>4. Estoppel. Where one by his words or conduct wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.</p>

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

<p>Street Railways: Negligence: Evidence. In an action for damages by a passenger against a street railway company, where the defendant’s liability rests upon the question whether or not a street car was suddenly and carelessly started as the plaintiff was about to alight therefrom, which is denied, the defendant is only required to furnish sufficient proof to rebut that produced by the plaintiff upon this point, and is not required to establish its freedom from negligence by a preponderance of the evidence.</p> <p>1. Hegligence: Burden oe Prooe. • The rule that the burden of proof upon the issue of negligence does not shift .during the progress of the trial, but rests throughout upon the party alleging such negligence, is based upon the better reason, and well supported by authority, and is established in this state as the correct rule.</p> <p>2. —--: Evidence: Presumption. When it appears, in an action against a common carrier for personal injury caused by the negligence of the carrier, that some defect in the appliances of the carrier, or some act of its employees in the conduct of its business, contributed to the accident which caused the injury complained of, a presumption of negligence on the part of the carrier arises, and unless there is evidence against the presumption it will be sufficient to establish the allegation of negligence of the carrier.</p> <p>3. Instruction: Burden oe Prooe. It is erroneous to refuse to instruct the jury that the party alleging facts from which' a presumption of negligence would arise has the burden of proving the existence of such facts.</p>

<p>1. Contract: Performance. A contract which has never been begun is a contract “not completed within the time specified,” under the provisions of section 20, article I, chapter 89, Compiled Statutes, 1903.</p> <p>2. Letting Contract. The fact that the person to whom a contract is let under the provision of said section 20, requiring the contract to be let to the “lowest responsible bidder,” is the only bidder, does not render the contract illegal, in the absence of fraud or collusion, or of any showing that the price is excessive or unreasonable.</p> <p>3. Notice: Bid. A bid which proposes “to construct, excavate and complete by working sections” at a fixed price per cubic yard of earth responds to a notice that required bids to be made “by each working section,” since the proposal means at the same price per yard for each working section or for the whole work.</p>

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

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

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

<p>1. Appeal: Election: Review. Upon an appeal to this dourtfor a trial. de novo of the issues tried in the district court, an error of that court in compelling the appellant plaintiff to elect upon which of two causes of action set forth in his petition he would proceed cannot he corrected.</p> <p>2. Pleading. An answer setting up the statute of limitations is not a technical plea of confession and avoidance; whether an answer of a supposed estoppel is so or not depends upon the nature of the matter alleged in the plea.</p> <p>3. Evidence examined, and found to uphold the judgment of the district court.</p>

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

<p>Real Estate Agent: Action for Services. Services as a real estate broker, rendered for tbe owner of tbe land without a written contract, cannot be recovered for as such on a quantum meruit. Blair v. Austin, 71 Neb. 401, followed and approved.</p>

<p>Appeal from and error to the district court for Douglas county: Abraham L. Sutton, Judge.</p>

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

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

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

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

<p>1. Mortgage: Deficiency Judgment: Limitation. An application for a deficiency judgment should, be made within the time that the statute would bar an action on the note secured by the mortgage on the foreclosure of which the deficiency arises, the statute commencing to run from confirmation of the foreclosure sale.</p> <p>2. Married Women: Mortgage. A married woman is not bound by the covenants in a deed or mortgage, where she joins with her husband in making the same for the sole purpose of releasing her dower interest. Comp. St. 1903, ch. 73, sec. 48.</p>

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

<p>Beal Estate Contract: Construction. A party borrowed the amount necessary to pay the purchase price of certain real estate, for the purchase of which he had made an oral contract with the owner, giving his note therefor. To secure the payment of the note it was orally agreed among the vendor, the vendee and the payee of the note that upon payment of the note the title of the real estate should be conveyed to the vendee, but upon default in such payment it should be conveyed to the bank. Afterwards the vendee was adjudged a bankrupt and a trustee appointed for his estate. Held:</p> <p>(T.) That so long as the vendee, or those claiming under him, base their claim upon the three-sided contract, they must accept it in its entirety, and will not be permitted to avail themselves of those terms which are favorable and reject those which are onerous.</p> <p>(2.) That the vendee took merely the equitable title, subject to a lien in favor of the holder of the note for the amount due thereon, and that the trustee of his estate occupies no more advantageous position.</p>

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

<p>1. Mortgage: Construction. A receives from B the sum of $5,000, and executes and delivers to B a mortgage on real estate providing for the payment of $300 per annum during the lifetime of B. The mortgage contains the following provision: “It is understood and agreed that the intention of the parties hereto is to secure to said B the interest on said principal sum o-f $5,000 during the term or period of his natural life, and, in case the interest is paid according to the terms thereof, the principal sum of $5,000 is to remain to said A, her heirs, executors, administrators and assigns, and upon the death of said B and payments of interest as aforesaid this obligation is to become null and void.” Held not to be an attempt at a testamentary disposition of.B’s property.</p> <p>2. Contract: Construction. In the determination of the rights of parties to a contract, the contract should be construed in the light of surrounding circumstances and the condition of the parties at the time of making it.</p> <p>3. -: —■-. Where the parties to a contract have, with a knowledge of its terms, given it a particular construction, such construction will generally be adopted by the courts in giving effect to its provisions.</p>

<p>1. Variance: Review. Where a party relies upon a variance between the pleadings and the proof to defeat a recovery, that question should be raised at some time during the progress of the trial, and, unless it is so raised and suggested to the trial court, it will not be considered on error in this court.</p> <p>2. Record examined, and found to contain evidence to sustain the Judgment.</p>

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

<p>1. Jury:- Qualifications: Waiver. The objection that a juror is disqualified because of having been convicted of a felony may be waived. A party who does not inquire in regard to the matter on . voir dire examination of the juror, nor object to the juror on that ground until after the trial, will be held to have waived the objection.</p> <p>2. Homicide: Self-Defense: Evidence. Upon trial of an information for murder, and a plea of self-defense, it is competent to show that the deceased was at the time in the lawful and peaceful possession of the premises where the homicide occurred; and for that purpose it is not error to allow, under proper instructions from the court, the introduction of evidence of a written lease conveying to the deceased the right of possession.</p> <p>3. Experts: Evidence: Review. Matters of common observation and matters upon which jurymen are as capable of forming an opinion as are physicians and surgeons are not matters for expert medical testimony. But it is not necessarily reversible error to allow a witness to testify to a truism with which all intelligent men are presumed to be acquainted,'nor is it in all cases reversible error to allow a witness, over objection, to testify to a proposition of law, or a fact of science or nature which is a matter of common knowledge.</p> <p>4. Instruction: Self-Defense. It is not error to instruct the jury in a trial for murder that, “when competent evidence has been introduced tending to prove that the defendant acted in self-defense, it is incumbent upon the state to prove to you beyond a reasonable doubt that he did not so act.”</p> <p>5. -: -. One who is violently assaulted may use such means for self-protection from the assault as would appear to an ordinarily reasonable and prudent man similarly situated to be necessary under the circumstances. An instruction which tells the jury that, if under such circumstances he uses “sound reason” in determining what is necessary for self-protection, it is all that is required of him, is inaccurate, but is not erroneous, requiring a reversal of the judgment, if it is coupled with another instruction which tells the jury that there must be an acquittal if under such circumstances the defendant had reasonable ground to believe and did believe that there was a design to take his life or to do him great bodily harm.</p> <p>•. In a trial for murder, with evidence of self-defense, 6. when it appears that the accused was a trespasser or was otherwise violating the law at the time of the homicide, and there is evidence tending to show that the killing was done in justifiable self-protection from a vicious and dangerous assault by the deceased, it is error to instruct the jury .that, “when a man without fault, in the lawful pursuit of his duties, is attacked,” he may defend himself against such attack. A trespasser may defend himself against an unlawful and dangerous assault. But the whole charge upon this subject must be construed together; and if in one instruction the jury without such qualifications are plainly told that “where, from the nature of the attack, there is reasonable ground to believe that there is a design to take his life or to do him great bodily harm, and the party attacked does so believe, then the shooting of the assailant under such circumstances will be excusable or justifiable,” it is not reversible error to tell the jury in another instruction that the defendant will under such circumstances also be justifiable if he is himself without fault and in the lawful pursuit of his duties.</p> <p>7.-: -. Although it appears that the deceased was at the time of the homicide guilty of a technical assault upon the accused, it would not be lawful to use more force than necessary for self-protection from that assault; and, if the jury should find that the accused was a trespasser at the time, it would be his duty to retire from his assailant, if by so doing he could avoid all danger from the assault. To kill the assailant under suoh circumstances would not be justifiable. A request to instruct that “the law does not require the defendant to flee from his assailant” was properly refused as misleading.</p> <p>8. Hew Trial: Newly Discoveeed Evidence. It is not error to refuse a new trial on the ground of newly discovered evidence, if the proposed evidence might with reasonable diligence have been produced upon the trial or is cumulative.</p>

Original application for a writ of mandamus to compel respondent to issue a license authorizing relator to transact business.

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

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

<p>Party Walls: Action fob Damages: Evidence. One who consents to the uncovering of a portion of the roof upon a building belonging to him, to ’allow one of its walls which is a party wall to be built higher, cannot recover from his co-owner for damages from leakage, unless he proves that the injury resulted from the negligence of the defendant.</p>

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

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

<p>1. Judgment: Equity: Negligence. A court of equity will not relieve against a judgment obtained against a party by reason of the negligence of Ms attorney.</p> <p>2. Absence of Reporter: Review. If a party desires to complain of the absence of the official reporter, he should call the attention of the trial court thereto, obtain a ruling, and if forced to trial without the reporter preserve his exceptions.</p> <p>3. Appearance. If a party who contends that a court has no jurisdiction over his person files a motion for a new trial, he thereby concedes that the court has power to act, and will not be afterwards heard to assert the contrary.</p> <p>4. Bankruptcy: Set-Off. A party against whom a judgment has been rendered in favor of the trustee of a bankrupt may, by proper proceedings in equity, be allowed to offset against the same a claim allowed in its favor against the bankrupt in the bankruptcy proceedings.</p>

<p>Error to tbe district court for Douglas county: Edmund M. Bartlett, Judge.</p>

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

<p>1. Counties: Right to She. A county in its corporate character is a competent and proper party to sue for the enforcement of all contracts and obligations in its behalf, unless the statute expressly provides otherwise. This right is not impaired by the fact that the obligation may be, or is required by law to be, discharged by payment of a liquidated sum to the county treasurer or to his order, upon demand.</p> <p>2. Pleading. A petition which alleges that a contract of a corporation was made, executed and delivered by it by its officer and agent, naming him, is hot demurrable on the ground that authority by the agent does not sufficiently appear.</p>

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

<p>1. Error Without Prejudice. When the answer fails to state a defense, hut admits the plaintiff’s cause of action, and the verdict and judgment are supported hy the petition, errors occurring at the trial and in the giving and refusal of instructions are without prejudice.</p> <p>2. Pleading: Admissions. If a defendant admits hy answer or demurrer that he entered into a contract with plaintiffs hy an associate name in which the suit is brought, such admission, without further explanation, is equivalent to an admission that the plaintiffs have sufficient capacity to hind and to he hound by the instrument, and to enforce the same in the contract name.</p>

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

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

<p>1. Administrator’s Sale. The provisions of section 117, chapter 23, Compiled Statutes 1903, apply to irregular administrative sales, but not to sales that are absolutely void.</p> <p>2. Case Distinguished. Seward v. Didier, 16 Neb. 58, examined and distinguished.</p> <p>3. Administrator’s Sale: Homestead. 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 the payment of debts against the estate of the decedent, and a license granted by the district court purporting to authorize such a sale is absolutely void. Tindall v. Peterson, 71 Neb. 160, followed and approved.</p>

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

<p>Error to the district court for Merrick county: James G. Reeder, Judge.</p>

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

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

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

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

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

<p>1. Intoxicating Liquors: Seller’s Liability. One selling intoxicating ' liquor is liable, not only for the actual results of the s,ale, but for all damages growing out of the disqualification resulting from or contributed to by such sale, without reference to the time through which such disqualification may continue.</p> <p>2. Loss of Support: Question for Jury. Where a husband becomes an habitual drunkard, and abandons his family and ceases to provide for its support, whether such loss' of support is permanent or otherwise is a question of fact for the jury. ■</p> <p>3.-: Action: Mitigation of Damages. In an action by a wife to recover in behalf of herself and children for damages on account of the sale of liquor to her husband, in consequence of which sales he has become an habitual drunkard and has abandoned his family, the defendant is not entitled to show in mitigagation of damages that the wife, since such abandonment, has commenced proceedings for divorce.</p> <p>4. New Trial: Affidavits. Affidavits in supp'ort of a motion for a new trial on the ground of newly discovered evidence, which state that the defendant had used reasonable diligence to discover such testimony before the trial, but which fail to state the facts constituting such diligence, are insufficient.</p>

<p>1. Pleading: Jurisdiction, Want of. Where the want of jurisdiction does not appear upon the face of the record, it may be pleaded with other defenses in the answer.</p> <p>2. ——: -. That the defendant in a case of that kind first raised the question of jurisdiction on a special appearance, which was overruled, does not affect his right to include a plea to the jurisdiction with other defenses in his answer.</p>

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

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

<p>1. Res Gestae. A declaration to be part of the res gestee need hot necessarily be coincident in point of time with the main fact proved; it is enough that the two are so clearly connected that the declaration can be said to be a spontaneous expression of the fact or condition.</p> <p>2. Instructions examined, and held to have fairly stated the law applicable to the ease; and the evidence examined, and found to have justified the submission of the case to the jury.</p>

<p>1, Oral Evidence: Written Contract. The admission of oral evidence to explain the possession of and to prove that the delivery of a written contract was conditional, and that such delivery was not to become effective until the happening of some other event, is not a violation of the rule which would prohibit the introduction of oral evidence to contradict or vary the terms of the contract.</p> <p>2. Contract: Possession: Presumption. The possession of a written contract is prima facie evidence of its delivery, but the presumption of delivery arising from such possession may be explained or rebutted by oral evidence.</p>

<p>Injunction: Repeated Trespass. A court of equity will interfere by injunction to restrain repeated acts of trespass, sucb as the forcible entry of a dwelling-house by breaking or removing locks from the doors, the forcible removal of fastenings from gates, and assaults upon those in possession; and in such case it is unnecessary to prove that the trespassing parties are insolvent.</p>

<p>1. Statutes: Construction. In construing a statute, an imperative rule is that effect, if possible, must be given to every clause and part of the statute.</p> <p>2. Tax Sale Certificate, Sale of. Section 26, chapter 75, laws of 1903, construed, and held not to authorize the sale of tax sale certificates owned by the state, or .by any county or city, for less than the amount due thereon, and that the amount due thereon is to be determined by adding to the face of the certificate interest computed at the rate provided in section 27 of the act</p> <p>1. Statutes: Validity. Conceding the provisions of sections 12 and 13 of the amendatory act of the legislature (laws 1905, ch. 76) relating to the election of police judge to he invalid, which is not determined, the remainder of such act would not be affected thereby. Such provisions, it is held, were not an inducement to the passage of the remainder.</p> <p>2.-: -. The provision found in said act (sec. 12) for an election of city aldermen on the first Tuesday in June, 1905, is not special legislation inhibited by the constitution, because applicable to the one city only which at such time comes under the operaton of the law.</p> <p>3.-: Enforcement. Invalid provisions of an act, not operating to avoid the whole, cannot be relied on to excuse the performance of a duty enjoined by the valid portions of the act.</p> <p>1. Officers: Legislative Power. The legislature cannot appoint county-officers, nor by an act solely for that purpose extend the terms of such officers.</p> <p>2. Constitutional Law. Chapter 47 of the laws of 1905 is unconstitutional and void.</p>

<p>Original application for a writ of mandamus to compel respondents to meet and canvass returns of election.</p>

Original application for a Avrit of mandamus to compel respondent to file certificate of nomination and place name of relator on election ballot. •

Original application for a writ of mandamus to compel respondent to file certificate of nomination and place name of relator on election ballot.

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

<p>1. Taxation: Inheritances. The tax provided for in the inheritance tax law, so called (laws 1901, ch. 54, as amended, laws 1905, ch. 117), is not a property tax, but upon the right of succession to property by inheritance or will.</p> <p>2. -' — : Legislative Power. The enumeration of subjects of taxation. in section 1, article IX of the constitution, is not exclusive. The legislature has power to provide for taxation upon inheritances.</p> <p>3. Inheritance Tax Law: Construction. The act does not require the tax to be levied upon the property constituting the whole estate of the decedent, hut upon the share that each heir or devisee takes therein.</p>

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

<p>1. Injunction: Contempt. A party is not punishable for contempt of court for disregarding a void order of injunction; but, when an injunction is legally granted in a case where the court has jurisdiction of the subject matter and of the parties, it must be respected until it is set aside by the court allowing it, or is reversed in the appellate court by some appropriate mode of direct review.</p> <p>2. —-: -. When one knowingly disobeys an injunction which is not void, he is liable to punishment for contempt, though he would. have been entitled to a vacation of the order upon a motion to dissolve or upon a trial of the merits of the bill.</p> <p>3. Bill of Exceptions. Unless a bill of exceptions is authenticated in the manner required by law, the supreme court cannot receive and consider it.</p> <p>4. Injunction: Contempt: Review. Where the evidence introduced on the trial of one charged with a constructive contempt of court for the violation of an order of injunction is not preserved and authenticated by a proper bill of exceptions, the only question which can be considered by the reviewing court is whether the pleadings contained in the transcript support the judgment, and, ’ - if they are found sufficient, the judgment will be affirmed.</p>

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

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

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

<p>1. Evidence examined, and held sufficient to sustain the judgment.</p> <p>2. Instructions examined, and held not prejudicial.</p>

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

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

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

<p>1. Cities: Sidewalks. A city, charged with the duty of keeping its streets and sidewalks in safe condition for use, is not required to search for defects therein, where there is no reason to suppose defects may be found.</p> <p>2. -: -: Notice oe Defects. A city is not charged with implied notice of a latent defect in a sidewalk, producing an injury to a person using the walk, by the existence of a defect therein of a different character and which did not contribute to the injury in any manner.</p> <p>3.-: —--: -. The city of Omaha must use ordinary care and diligence to keep its streets and sidewalks in reasonably safe condition for use by the public, but it will not be charged with implied notice of a latent defect in a sidewalk, hot apparent on ordinary inspection, until such time or the happening of such event as would challenge the attention of a man of ordinary diligence, charged with a like duty, to such defect.</p>

<p>1. Evidence examined, and held to show the conveyance attacked fraudulent except as to one mortgage.</p> <p>2. Creditors’ Suit: Limitation cot Actions. A party cannot maintain an action in the nature of a creditors’ suit to reach property of his debtor fraudulently conveyed until the claim has been reduced to judgment, and until judgment is obtained by the creditor the statute of limitations will not, under ordinary circumstances, commence to run against such a suit. Gillespie v. Cooper, 36 Neb. 775, so far as it holds a contrary doctrine, disapproved.</p> <p>3. -: Attachment. The creditor, if he chooses, may, before reducing his claim to judgment, commence an action aided by attachment and seize the estate fraudulently conveyed by his debtor, and after judgment in the attachment suit he may enforce his lien by an action in the nature of a creditors’ bill. This course may be pursued, whether the debtor is a resident of the state or a nonresident. Keene v. Sallenbaeh, 15 Neb. 200; Kennard, Daniels <& Co. v. Hollenbeck, 17 Neb. 362; Kimbro v. Clark, 17 Neb. 403.</p>

<p>1. Banks: Misconduct of Officers: Action for Damages. Damages resulting to a national bank from the misfeasance or mismanagement of its officers are assets of the bank, and. are recoverable only in an action brought by the bank or for the benefit of all the stockholders and creditors thereof.</p> <p>2. -: Officers: Liability: Action. The officers of a national bank are personally liable for false reports made and published by them in pursuance of section 5,211, Revised Statutes, United States, to the party injured thereby, and the right of the injured party to maintain the action does not rest on the federal statute but the common law.</p> <p>3. False Reports: Action: Defense. It is no defense to an action of that character that such reports were made and published by the officers without knowledge of their falsity. Following Q-erner v. Mosher, 58 Neb. 135.</p> <p>4. Res Judicata. A cause of action, once finally determined between the parties on the merits, cannot afterwards, so long as such' judgment remains in force, be litigated by new proceedings, either before the same or any other tribunal.</p> <p>5.-: Demurrer. The foregoing rule applies, not only to judgments which are the result of a trial of issues of fact, but also to judgments on demurrer, where- such judgments go to the merits of the case; but a judgment on a demurrer, which is based on a technical defect of pleading, a lack of jurisdiction, or the like, does not involve the merits of the controversy, and will not support the plea of res judicata.</p> <p>6. Dismissal. Tbe voluntary dismissal of an action before final submission does not operate as an estoppel, and is without prejudice to a future action. ></p> <p>7.-: Costs: Second Action. Under our practice the common law rule, making the payment of costs in the action dismissed a prerequisite to the prosecution of another, is one which the trial court in the exercise of a sound discretion may or may not apply.</p> <p>8. Evidence examined, and held sufficient to sustain the findings of the jury.</p>

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

<p>Judgment: Process: Service. An officer’s return to a summons, showing service by leaving at the “last” usual place of residence of the defendant, does not show a compliance with the statute authorizing service by leaving a copy at the usual residence of the defendant, and a judgment based thereon is void for want of jurisdiction.</p>

<p>1. Legislative Power: Use oe Flag. The power to prohibit the use of the national flag does not belong exclusively to the federal congress, but may be exercised by the several states.</p> <p>2. Constitutional Law. Chapter 139, laws Í903, entitled “An act to prevent and punish the desecration of the flag of the United States” is not obnoxious to the fourteenth amendment to the constitution of the United States, nor to the provisions of the state constitution against depriving any person of his property without due process of law, and against special or class legislation.</p> <p>3. Police Power. Notwithstanding the fourteenth amendment to the federal constitution, the state in the exercise of the police power may enact such laws as are calculated to promote the health, comfort, safety and welfare of society, although such laws operate to restrict the liberty of citizens of the United States.</p> <p>4. Courts: Constitutional Questions. But whether legislation thus operating is in fact calculated to promote such ends is a legitimate subject of inQuiry by the court, when the constitutionality of the act is assailed.</p> <p>5. Statutés: Validity. An act which is calculated to foster sentiments of patriotism is not vulnerable to the objection that it is not calculated to promote the welfare of society.</p>

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

<p>Error to the district court for Douglas county: Alexander O. Troup, Judge.</p>

<p>Witnesses: Competency. In an action against a married woman, where the proceeding is adversary, 'her hushand is not a competent witness against her, and a judgment against her in such proceeding, unsupported by competent evidence other than that of the husband, where the evidence of the husband was received over the objection of the wife, will be reversed.</p>

Original application for a.writ of mandamus to compel respondent to file certificate of nominations and place names of candidates on election ballot.

<p>1. Drains: Claim for Damages: Waiver. When a person files a claim for damages to his premises caused by the location of a proposed drainage ditch, he thereby waives objection to any irregularities in the proceedings to establish the same. Davis v. Boone County, 28 Neb. 837.</p> <p>2. -: Damages. Where an assessment to the amount of the special benefits he has received has already been assessed against the owner of lands over which a drainage ditch is proposed to be constructed, the value of such special benefits should not be deducted from any damages accruing to the land not actually taken for the construction of the proposed improvement. Martin v. Fillmore County, 44 Neb. 719, distinguished.</p> <p>.Drains: Damages: Bekefits. Where an action is brought to recover damages occasioned by the construction of a drainage ditch, and it appears that the special benefits received by any particular tract of land exceed that portion of the cost of the ditch apportioned to it, the special benefits in excess of the cost may be set off against consequential damages.</p>

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

<p>Contributory Negligence: Erroneous Instruction. Under the circumstances of this case the giving of an instruction as to contributory negligence, which there is no evidence to support, held prejudicial error.</p>

<p>1. Process: Ñonresidents. The provisions of section 65 of the code: “Where the action is rightly brought in any county, according to the provisions of title four, a summons shall he issued to any other county against any one or more of the defendants, at the plaintiff’s request” — apply to nonresidents of the state ■who may he found in any other county to which the summons may he issued.</p> <p>2. ——: Jurisdiction. "Where an action is rightly brought in any county, a summons may be issued to any other county against one or more defendants. A nonresident of "the state who may be found therein is as liable to service as a resident, and the court of the county in which the action was brought thereby acquires jurisdiction.</p>

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

<p>Appeal from the district court for Douglas county: Arraham L. Sutton, Judge.</p>

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

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

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

<p>1. Cities: Parks and Boulevards: Special Assessments. Section 1016, chapter 12a, .Compiled Statutes 1903, authorizes a special assessment oh such real estate as may be “specifically” benefited by a park'or boulevard to pay for the land appropriated or purchased for such improvement</p> <p>2. Statutes Hot in Conflict. The provisions of that section are not controlled by nor in conflict with section 158 of the above chapter, which provides generally for the assessment of damages for the appropriation of private property for street purposes upon abutting or adjacent real estate.</p> <p>3. Bonds. Section 1016, supra, does not require the issuance of bonds under any and all circumstances when lands are appropriated for the construction of parks, parkways or boulevards, but only where the special assessment is insufficient for that purpose.</p> <p>4. Special Benefits: Question oe Fact. Ordinarily, whether a particular lot or tract of land is specially benefited by a park, parkway or boulevard is a question of fact, upon which the distance of the land from such improvement would have a bearing, but the mere fact that real estate is three-quarters of a mile from a boulevard will not enable the court to say as a matter of law that it is not specially benefited thereby.</p>

<p>1. Master and Servant: Contributory Negligence. In an action for personal injuries, where the plaintiff is charged with contributory negligence, evidence of an unfounded belief on his part as to a condition which caused the injuries is immaterial, where - it appears that he might have known, and that a due regard for his own safety required him to know, the truth.</p> <p>2. Directing Verdict. Evidence examined, and held that a motion to direct a verdict against the plaintiff was properly sustained.</p>

<p>Mortgages: Foreclosure: Evidence. The rule requiring evidence in support of the allegation, in a petition for the foreclosure of a mortgage, that no proceedings at law have been had, etc., is available to an attaching creditor resisting the foreclosure ahd plaintiff’s claim of priority.</p>

<p>Error to the district court for Saline county: Dest.thi G. Hurd, Judge.</p>

Original application for a writ of mandamus to compel respondents to vacate certain orders reducing assessments for taxation.

<p>Vendor and Purchaser: Rights in Crops. Where, by the terms of a lease, rent is reserved in a share of the crops, the landlord and tenant are tenants in common of the growing crops, and in such case a purchaser of the real estate from the landlord during the term of the lease, in the absence of an agreement to the contrary, is not entitled to a portion of the crop belonging to the landlord which had been severed from the realty prior to the time he acquired title to the land upon which the erop was grown.</p>

<p>A single assignment of error, covering several rulings of the trial court, in the following language: “Errors of law occurring at the trial and duly excepted to by the. defendant, as follows, as shown on page 6,” etc., held too general to call for consideration, especially where it appears, as in this case, that objections to one or more of the questions included in the assignment were properly overruled.</p>

<p>1. Taxation: Exemptions: Property Abandoned eor Religious Purposes. The abandonment of property formerly used exclusively for religious and educational purposes, with. the intention of never again using the property for such purposes, together with the fact that since such abandonment the property has not been used for the purposes stated, or for any other purpose that would exempt it from taxation, renders such property liable to taxation from the time of such abandonment.</p> <p>2. Tax List: Evidence. A tax list made in conformity with the provisions of the statute is prima facie evidence that a levy of taxes was made by the proper authorities, and is conclusive as against a claim of irregularities in making such levies.</p> <p>3. Taxes: Collection. The provisions of the revenue law of 1903, changing the method of procedure in the enforcement of the collection of taxes, are available for the collection of taxes delinquent prior to the time such revenue law went into effect.</p>

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