Volume 77 — Nebraska Reports

<p>■ Original application for a writ of mandamus to compel respondents, as county supervisors, to repair a bridge.</p>

<p>1. Chattel Mortgages: Validity, a chattel mortgage on a specified number of cattle, describing them by age and brands, and reciting that “the above described stock are in my undisputed possession, free from all liens and incumbrances, and kept • on my premises on section No. 4, township No. 5, range No. 38, Chase county, Nebraska,” is not void on its face for uncertainty of description.</p> <p>2. ■ — -: -. If it is made to appear that such mortgage was in fact given on a specified number of cattle out of a larger number of the same kind and description, or, in other words, on a part only of a herd of cattle of the same kind and bearing the same description, it is void as to third persons, unless there has been a separation or a delivery of the cattle mortgaged to the mortgagee.</p> <p>3. -: Selection. While such a mortgage is void as to third persons, it is not void between the parties thereto. It gives to the mortgagee the right of selection, and, when he has exercised that right, the lien of the mortgage attaches and will prevail over all after acquired interests in the mortgaged property.</p> <p>4. -: Priorities. When two such* mortgages are executed on parts of the same herd of cattle, the mortgagees have an equal right of selection, and the one first exercising that right is entitled to the possession of the cattle so selected by him, to the exclusion of the rights of the other, if need be.</p> <p>5.-: Assignment: Pjriokities. If, however, the mortgagee in such mortgage transfers the same to a third party, and after-wards takes the second mortgage on the same description of property, he takes his right of selection subject .to the right so transferred to the first assignee. And if he afterwards assigns the second mortgage, such assignee will take no greater right than his assignor had.</p> <p>6. Instructions announcing a contrary rule disapproved.</p>

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

<p>1. Taxation: Exemptions: Beneficial Associations. A fraternal Beneficiary association, .conducted for the mutual Benefit of its memBers and for tlie purpose of providing a fund By the payment of stated dues and fees from such memBers for the payment of a special amount upon the death of each member to a Beneficiary named By him, is not a charitable association, and its property and funds are not used exclusively for charitable purposes so as to be exempt from taxation by tbe laws of tbis state.</p> <p>2. Statutes: ConstructioN. Where tbe legislature bas passed an act providing for a new system of raising revenue, and bas thereby changed tbe former methods of procedure relating to matters of taxation, tbe courts in construing its provisions are not bound by any administrative construction of tbe former revenue law.</p> <p>3. Taxation: Credits. Under tbe rule established by tbe decisions of tbis court for tbe taxation of credits, a fraternal beneficiary association is entitled to set off tbe amount of its outstanding beneficiary certificates, matured and unmatured, against securities in its fidelity or mortuary fund, set apart and devoted exclusively to tbe payment of such certificates.</p>

<p>Hateas Corpus: Review. The procedure to obtain a review in this court oí a final order made by a district court or judge in a proceeding in habeas corpus must be such as is required to be followed for a like purpose in civil actions. Sections 483 and 515 of the criminal code are not applicable thereto.</p>

<p>1. Specific Performance: Default. Neither party to an executory contract for the purchase and sale of lands can put the other party in default without a readiness and offer to perform on his own part, hut for the purposes of an action for a specific performance a formal, technical tender is not indispensable, and an express repudiation of the contract and refusal to perform it by one party excuses the other from any subsequent formal offer or tender.</p> <p>2.-: Tender. It is not indispensable in an action for the specific performance of an executory contract for the purchase and sale of lands that the plaintiff should have been capable of performance at the date the contract was entered into, if he was able, ready and willing and offered to perform at the time and in the manner stipulated in the agreement.</p> <p>3. Vendor and Purchaser: Contract. An executory contract for the sale of a body of lands which includes the family homestead of the vendor and which is not signed and acknowledged by his wife is not wholly void, but is obligatory upon him, except with respect to the homestead tract, and such a contract is therefore not open to the objection of want of mutuality.</p>

<p>Appeal from the- district court for Washington county: Edmund M. Bartlett, Judge.</p>

<p>Wiese v. Union P. R. do., ante, p. 40, followed and held to control the issues in this case.</p>

<p>1. Process: Impeachment oe Retubn. Under the provisions of section 370 of the code, affidavits are admissible in evidence to impeach the return of an'officer to the service of a summons in proceedings for revivor.</p> <p>2. -: -. The return of an officer to the service of a summons in the original action, may be impeached in a proceeding to revive the judgment.</p>

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

<p>1. Costs. Attorney’s fees cannot be taxed as costs against the successful litigant in an action at law or in equity.</p> <p>2. -. In an action in equity the trial court has a sound discretion in taxing the costs of the action to the different litigants, hut this discretion is subject to review when unreasonably or arbitrarily exercised.</p>

<p>Cities: Detaching Tebkitoky: Review. A judgment of the district court in a proceeding under the statute, section 101, art. I, ch. 14, Comp. St. 1903, to detach territory from a municipal corporation, will not he impeached upon aypeal in the absence of a showing that the trial judge committed a'n important mistake of fact, or made an erroneous inference of fact or of law. Mictiael-son v. Village of Tilden, 72 Neb. 744, followed and approved.</p>

<p>Judicial Sales: Appraisement. Where lands constituting one body are used as a single tract, ordinarily they may for judicial sale he appraised together. Smith Bros. Loan & Trust Oo. v. Weiss, 56 Neb. 210, followed and approved.</p>

<p>Petition: Demurrer. A petition alleging the making of a yerbal building contract and partial performance thereof by the plaintiff, and claiming damages on account of defendant’s failure to perform the same, is .not subject to demurrer because it fails to allege the time within which the contract was. to be performed.</p>

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

<p>Verdict: Review. AVhen the amount of damages awarded by a jury cannot be ascertained from the facts proved, the verdict should be set aside.</p>

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

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

<p>Appeal from the district court for Douglas county: Howard Kennedy, Jr., Judge.</p>

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

<p>Deed as Mortgage: Doweb. B. and wife conveyed certain real estate to H. and N. by warranty deed as security for a debt which was fully paid prior to the decease of the husband. No reconveyance was ever had, and by certain mesne conveyances made by N. and the heirs of H. the title Anally vested in the defendant, who had notice that the conveyance to H. and N. was made as security only, and was not intended to be an unconditional conveyance. Held,, That the widow of B. was etitled to dower in such real estate.</p>

<p>Instructions defining adverse possession examined, and held not prejudicial to the defendant.</p>

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

<p>1. Sales: False Repbesentations. Where the defense is that the defendant had been induced to buy certain personal property by the false and fraudulent representations of the plaintiff, his vendor, the fact that such representations were made two days before the sale was consummated would not of itself justify the exclusion of evidence thereof.</p> <p>2. —-: -. Ordinarily, in such case, the defendant is entitled to trace the negotiations to their inception, where the evidence thereof tends to establish such defense.</p>

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

<p>Appeal from the district court for Douglas county: Howard Kennedy, Jr., Judge.</p>

<p>1. Eludings: Review. The findings of the trial court on conflicting evidence in an action at law will not be disturbed on appeal unless manifestly wrong.</p> <p>2. Sale: Rescission. Where by the terms of a contract of .sale payment of the price is to precede a delivery of the goods, the repudiation by the vendor of a substantial condition of the contract on his part to be performed will justify a rescission of the contract by the vendee.</p> <p>3. Evidence examined, and held sufficient to sustain the findings of the trial court.</p>

<p>Appeal from the district court for Hamilton county: Arthur J. Evans, Judge.</p>

<p>1. Cities: Private Crossings: Liability. A city is not liable for damages sustained by reason of a defective crossing from private property into a public street.</p> <p>2. -: Personal Injury: Instructions. In an action against a city for damages sustained by reason of a .perso'nal injury, an instruction from which the jury might infer that the city would be liable for negligently permitting a walk in general use by the public over property not shown to be within the corporate limits of the city to become and remain in a dangerous condition, is prejudicial error.</p>

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

<p>Attorneys: Partnership: Accounting. In the absence of an express agreement to the contrary, any professional service rendered by a member of a firm of lawyers should be presumed to he for the benefit of the firm.</p>

<p>Mortgages: Foreclosuee: Evidence. ID an action to foreclose a real estate mortgage, the plaintiff is required to allege and prove, as against the owner of the equity of redemption, that no proceedings at law have been had for the recovery of the debt secured by the mortgage.</p>

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

<p>1. Statute of Frauds: Sale oe Land: Possession. Continued possession ' by a tenant is not such a part performance of a verbal contract for the purchase of land as to take the case out of the statute of frauds. Possession, to have such an effect, must be clearly shown to refer to and result from the contract of purchase, and not the lease. Lewis v. North, 62 Neb. 552.</p> <p>2. Evidence examined, and held, not to support the decree of the trial court.</p>

Original application for a writ of mandamus to compel respondent, as auditor of public accounts, to draw a warrant in payment of an allowed claim in favor of relator. Respondent demurred.

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

<p>Appeal from the district court for Dodge county: James G. Reeder, Judge.</p>

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

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

<p>1. Evidence examined, and held sufficient to sustain the judgment.</p> <p>2. Case Distinguished. Enterprise Ditch Oo. v. Moffitt, 58 Neb. 642, examined and distinguished.</p>

<p>Review: Harmless Error. When, the verdict returned by the jury is the only one justified by the evidence, errors in the giving a'nd refusing of instructions are not prejudicial.</p>

<p>Appeal from the district court for Richardson county: Albert H. Babcock, Judge.</p>

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

<p>Appeal from tbe district court for Saline county: Leslie GL Hurd, Judge.</p>

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

<p>1. School Lands: Redemption. A lessee of school lands or his assignee under a lease executed pursuant to the act of February 24, 1883 (laws 1883, ch. 74), who is delinquent of payments reserved in the instrument, is entitled to redeem from a forfeiture incurred by such delinquency at any time before such lands shall be actually resold or released.</p> <p>2.-: Lease, Recording Assignment of. An assignment of a lease of school lands that was executed prior to the passage of the act of March 5, 1885 (laws 1885, ch. 85), is not affected by the provisions of that act requiring such assignments to be recorded in the office of the commissioner of public lands and buildings.</p>

<p>1. Note: Bona -Fide Pukchaseb. To defeat a recovery on a promissory note in the hands of an indorsee, who takes it before maturity for a valuable consideration, in the ordinary course of business,, without notice, it is not sufficient to show that it was taken under circumstances which might excite suspicion in the mind of a prudent man, but it must be shown that the indorsee took the paper under circumstances showing had faith or want of honesty on his part. DoMins v. Overman, 17 Neb. 163, followed and approved.</p> <p>2. Evidence examined, and held, not sufficient to show had faith or want of honesty in the purchase of the note in controversy.</p>

<p>1. Depositions. A deposition to be admitted in evidence must be reduced to -writing by tbe officer tailing tbe deposition, or by tbe witness giving tbe testimony, or by a disinterested person, ⅛ tbe presence of tbe officer.</p> <p>2. -: Certificate. A certificate to a deposition, which fails to show that the deposition, was reduced to writing by the officer, or by the witness, or by a disinterested person, in the presence of the officer, and which further fails to show that the deposition was taken at the time and place named in the notice, is fatally defective.</p>

<p>1. Judgment: Revivor. The successor of a deceased judgment creditor may, after the expiration of a year, revive an action by a bill or a supplemental petition.</p> <p>2. Petition examined, ahd held sufficient to sustain the judgment.</p>

<p>1. Carriers: Negligence: Burden oe Proof. In an action for damages against a street railway company for a personal injury caused by tbe alleged negligent starting of one of its cars when the plaintiff, a passenger, was in the act of' alighting, the defense being a general or special denial, the burden of proof never shifts, but remains with the plaintiff to prove that the injury was received substantially as alleged.</p> <p>2. -: — : -: Instruction. When, in an action for damages for a personal injury inflicted while the plaintiff, a passenger, was in the act of alighting from a street railway car, the evidence is conflicting as to where the plaintiff alighted, an instruction that “plaintiff became a passenger of the company, and continued to be its passenger up to and including the act of alighting at his proper stopping place,” is erroneous.</p>

<p>1. Justice of the Peace: Appeal: Pleading. On. appeal to the district court a defendant is not required to allege a counterclaim in the same language in which it was pleaded in the inferior court. It is sufficient if the identity of the counterclaim is preserved.</p> <p>2. Depositary: Action: Defenses. The depositary of funds in escrow is entitled to prove any facts which would defeat the plaintiff’s claim thereto.</p>

<p>Appeal from the district court for Douglas county: Willis G.. Sears, Judge.</p>

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

<p>1. Trial: Habmless Ebeob. An attorney employed, by tbe insured to make out proof of loss refused to surrender tbe policies of wbicb be bad possession, claiming a lie'n tbereon for professional services. In a suit brought against the insurance companies, tbe attorney was made a party defendant, and filed an answer and cross-petition asking judgment against tbe plaintiffs for tbe amount due him for bis services and that it be made a lien on any judgment wbicb tbe plaintiff might obtain against the defendants. Tbe defendants asked that the issues made by their answers and those made by tbe answer and cross-bill of tbe attorney be tried separately. This tbe court denied, and proceeded to take evidence on all tbe issues made by tbe several parties. Held, Not reversible error.</p> <p>3.Pleading: Amendment. At tbe conclusion of tbe evidence the defendants asked leave to file an amendment t.o their answers to conform to tbe proof before tbe court. Tbe trial was to tbe court without a jury. Tbe application to' amend was taken under advisement by tbe court and thus held until tbe final determination of tbe ease, when an order was entered allowing tbe amendment, but reciting that “it would be considered as denied by tbe plaintiffs.” Held, That a motion for judgment on tbe pleadings in favor of tbe defendants was properly overruled, as tbe effect of tbe order allowing tbe amendment to be filed was to grant such leave only on condition that tbe statements in tbe amendment should be considered denied by tbe plaintiffs without any formal pleading to that effect being filed, and tbe defendants could not have any benefit from tbe amendment without recognizing tbe condition.</p> <p>3. Insurance: Demand: Merges. All verbal demands for an appraisement and for an examination of tbe insured under oath touching tbe cause and origin of tbe fire are merged in a subsequent written demand therefor.</p> <p>4. A -written demand for tbe examination under oath of tbe insured, made jointly by three insurance companies, and wbicb omits to name tbe time and place for such examination, or tbe person before whom it is to take place, is not a sufficient demand.</p> <p>5. Trial: Evidence: Review. In a case tried to tbe court, tbe presumption obtains that tbe court, in arriving at a decision, will consider such evidence only as is competent a'nd relevant, and this court will not reverse a case so tried because other evidence was admitted.</p> <p>6. Insurable Interest. A party to whom goods are consigned for sale on commission, and who is required to account to the owner for all goods received, has an insurable interest therein.</p> <p>7. False swearing in the proof of loss cannot be predicated on a claim made for the retail price of the goods, and for freight, drayage, washing, setting up, etc., where such claim is made in good faith under the advice of an attorney regularly employed to advise and assist in making such proof.</p> <p>8. Findings: Review. The findings of a court in a case tried to the' court without the intervention of a jury are entitled to the same weight as the verdict of a jury, and will not be sot aside when there is evidence to support them.</p>

<p>Waters. The overflow waters of a stream, especially where they run in a well-defined course and again unite with the stream at a lower point, must he regarded as a part of the watercourse from which the overflow comes and cannot he regarded or dealt with as surface water. Chicago, B. & Q. R. Co. v. Emmert, 53 Neb, 237, approved and followed.</p>

<p>1. Evidence examined, and held not only to support, but to require the judgment appealed from.</p> <p>2. Verdict: Evidence: Review. Where the verdict returned is the only one which could be sustained under the evidence, errors assigned in giving or refusing instructions will not be discussed.</p>

<p>1. An affidavit, under our statute, must Rave attached the certificate of the officer before whom tahen that the oath was administered by such officer.</p> <p>2. To constitute suicide by one not insane, there must be intentional self-destruction.</p>

<p>1. Verdict. A verdict is the unanimous decision made by a jury and reported to the court on the matters lawfully submitted to them in the course of the trial of a cause, and under our practice must be in writing and signed by the foreman.</p> <p>2. -. A mere statement by the foreman in open court that the jury have agreed, without stating the nature of the decision they have agreed upon, is not a verdict.</p> <p>3. Trial: Waiver. On the trial of a cause where two parties were joined as defendants, the jury were called into court and asked if they had agreed upon a verdict. The foreman answered that they had - agreed as to one of the defendants, naming him, but not as to the other, not stating the nature of their decision. The court expressed a doubt as to its right to receive a verdict as to one defendant without a verdict as to both, and asked counsel for suggestions, and, receiving too response, it discharged the jury without receiving a verdict as to either defendant. No objection was made or exception taken to such course. Reid, That the error, if any, was waived.</p> <p>4. Verdict. After the jury were discharged the foreman delivered a package of papers to the bailiff, who in turn delivered them to the court. Among the papers was what purported to be a verdict in favor of one of the defendants, signed by the foreman. It was delivered at a time and under such circumstances as to afford no .opportunity to poll the jury or apply the ordinary tests to determine whether it was the unanimous decision of the jury. Reid, The trial court properly refused to treat the paper purporting to be a verdict as the verdict of the ¡jur/.</p> <p>5. Railroads: Reasonable Cabe: Question eob Juey. Where a railroad company for many years has permitted the public without objection to cross its tracks at a certain point, not in itself a public crossing, it owes the duty of reasonable care toward those using such crossing, and whether such care has been exercised is ordinarily a question for the jury.</p> <p>6. -: -: -. The mere fact that warning of the approach of a freight train or portion of a freight train, hacking upon and over such crossing, was given by ringing the hell and sounding the whistle does not of itself show that the defendant company had discharged its full duty to those using the crossing. Whether, in view of the time, place and circumstances, further precautions were required is, ordinarily, a question for the jury.</p> <p>7. Negligence: Evidewcb. That the crossing was located in a populous district and over a system of tracks and switches within the corporate limits of a city; that it was in common use day and night by a large number of people; that such use had been so extensive and long continued that the defendant company was chargeable with notice of it; that a portion of a freight train was backed upon and over the crossing without displaying any ■ lights on the rear car, or having any person stationed on such car, or at the crossing, to give warning of its approach — would warrant the inference of negligence on the part of the company operating the train, although the bell was rung and whistle sounded.</p> <p>8. Evidence examined, and helé sufficient to sustain a finding that . plaintiff was injured as a proximate result of a failure on the part of the defendant company to give due warning of the approach of a train backing upon and over such crossing, and that the plaintiff was not guilty of contributory negligence.</p> <p>9-, Harmless Error. Where contributory negligence is relied upon as a defense, it is error to instruct the jury that, where negligence on the part of the plaintiff is disclosed by him in making his case, the burden of proof is upon him to show that he was not guilty of contributory negligence; but as to the defendant it is error without prejudice.</p> <p>10. Instructions: Review. ⅜ An instruction which states that it is the duty of a person at a railway crossing to look and listen for approaching trains is not erroneous because of the omission to state the direction in which such person is required tó look, especially when a more specific instruction is not asked by the complaining party.</p> <p>11. Harmless Error. Where the entire answer of a witness to a question is excluded, but substantially the same matter, so far as competent, is received in answer to a subsequent question, the error in excluding the former answer, if any, is cured.</p> <p>12. Evidence: Review. Certain evidence tendered by the defendants examined, and held properly excluded.</p> <p>13. Damages. On the facts stated, held that a verdict of $27,500 as damages for an injury resulting in the amputation of both legs about five inches below the knee is not excessive.</p>

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

<p>1. Judgment Lien: Appeal. An appeal by a judgment defendant to this court does not in the absence of a' supersedeas, operate to prolong the life of the judgment lien.</p> <p>2. -: -: Remand. The provision of section 509 of the code, relative to a judgment lien dating from the filing of a special mandate from this court in the lower court, has exclusive reference to the special mandate required by section 594 thereof, in case this court, upon reversal of a judgment in whole or in part, renders such judgment as the lower court should have rendered, instead of remanding the cause with directions to the lower court to render such judgment.</p> <p>3. Execution Sale: Dormiant Judgment. A sale of real estate under an execution issued on a dormant judgment is void as to one who acquired title to the property from the judgment debtor during the life of the judgment lien. Gillespie v. Switser, 43 Neb. 772, and LinTc v. Oonnell, 48 Neb. 574, modified.</p> <p>4. Attachment Lien: Dormant Judgment. In an action aided by attachment, upon the entry of judgment the attachment lien is merged in that of the judgment, and thereafter the lien is a mere incident to the judgment and ceases to exist when the judgment becomes dormant.</p> <p>5. ■ Fraudulent Conveyance: Husband and "Wife. A gift from a husband to his wife executed when the former was solvent, and not made in contemplation of insolvency or of engaging in some hazardous enterprise, will be upheld, if not excessive, considering the husband’s circumstances at the time the gift was made.</p> <p>6. Evidence examined, and held to establish the bona jides of a conveyance from a husband to his wife.</p>

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

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

<p>Contract: Consideration. The doing of that which the creditor of a corporation is required hy law to do before he could maintain an action against the stockholders of the corporation is not a sufficient consideration to support a promise.__</p>

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

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

<p>1. Criminal Law: Jeopardy. To constitute a former jeopardy, it . must appear that the defendant was put upon trial before a court having jurisdiction, upon an indictment or an information sufficient in form and substance to sustain a conviction, and that the jury were impaneled and sworn, and thus charged with his deliverance.</p> <p>2. Intoxicating Liquors: Illegal Sale: Evidence: Instructions. In a prosecution under section 20, ch. 50, Comp. St., for keeping intoxicating liquors for sale in violation of law, the possession of such liquors by the accused is presumptive evidence of guilt in the district court, a's well as before the examining magistrate, unless the accused shall satisfactorily account for and explain the possession thereof, and that they were not kept for an unlawful purpose, and it is not error for the district court to so instruct the jury.</p> <p>3. Criminal Law: Instructions. Where, in a criminal prosecution, the court has instructed the jury that the state must prove all of the material averments of the information, naming them, beyond a reasonable doubt, it is not error to afterwards instruct that the burden of proof to establish one of such material averments is on the state, without again qualifying such statement by the words “beyond a reasonable doubt.”</p> <p>4. -: -. It is not error for the court to refuse to give an instruction relating to the matter of a crime for which the defendant is not on trial.</p> <p>5. Evidence examined, and found sufficient to sustain the verdict.</p>

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

<p>1. County Court: Appeal: Judgment. Upon cm appeal from a judgment of a county court rendered in a cause prosecuted before the county judge in his capacity as a justice of the peace, a recovery cannot be had in excess of his jurisdiction in that capacity.</p> <p>2. Trespass: Joint Liability. Several owners of animals who have constituted of them a common or joint herd are jointly liable for trespasses committed by such herd.</p>

<p>Appeal from the district court for Scott’s- Bluff county. Hanson M. G-rtmes, Jhdge.</p>

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

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

<p>1. Homestead: Conveyance. Section 4, ch. 36, Comp. St., provides that the homestead of a married person cannot be^conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife.</p> <p>2. Estoppel will not supply the want of power, or make valid an act prohibited by express provision of law. Whitlock v. G-osson, 35 Neb. 829, followed and approved.</p> <p>3. Homestead: Abandonment. A departure from the homestead for pleasure, business or health, does not constitute an abandonment thereof. Blumer v. Albright, 64 Neb. 249, followed and approved.</p> <p>4.-: -. Neither spouse ca'n abandon the homestead for the other without his or her free consent.</p> <p>5. Vendor and Purchaser: Bona Fxdes. If a party relies upon a record to establish his title to realty and to relieve him of knowledge of secret liens known to his grantor, the record itself must show a chain of conveyances which discloses a perfect title in the grantor.</p>

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

<p>1. Heal Estate Agents: Contracts. To entitle a real estate broker to recover a commission for the sale of real estate he must prove a sale of the land on such terms as would entitle him to a commission under the provisions of a written contract between himself and the owner.</p> <p>2. Evidence. Correspondence set out in the opinion held insufficient to entitle the plaintiff to recover a commission.</p>

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

<p>Wills: Execution: Probate. A presumption of the due execution of a will arises from the presence of an attestation clause which recites the facts necessary to the validity of the will, and, in the absence of evidence discrediting the statements, the will should he admitted to prohate.</p>

<p>1. Landlord and Tenant: Withholding Possession: Damages. The measure of damages for the wrongful eviction of a tenant by his landlord, or for wrongfully withholding possession of the leased premises, is ordinarily the rental value of the property for the unexpired term, less the amount of rent reserved by the lease.</p> <p>2.-: -: -. In a proper case special damages in addition may be awarded, where such damages are certain and the natural result of the wrong complained of.</p>

<p>Appeal from the district court for Sherman connty: Bruno O. Hostetler, Judge.</p>

<p>Sales: Recovery of Money Paid. It is a rule generally enforced that a purchaser who has advanced money in part performance of a contract, and who refuses to proceed, the seller being ready and willing to perform on his part, cannot recover back mbney so advanced; but to subject the purchaser to this penalty or forfeiture it should clearly appear that he has wholly abandoned the contract and wilfully refused to proceed thereunder.</p>

<p>1. Probate Court: Appeal. An appeal lies from a final order or judgment of a county court in probate matters to tbe district court, whether such order or judgment be upon the merits or otherwise.</p> <p>2. Petition examined, and held, to state a cause of action for relief against an order of the probate court alleged to have been procured by fraud and imposition.</p>

<p>Appeal from tbe district court for Richardson county: William H. Kelligar, Judge.</p>

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

<p>Appeal: Pbactice. Under the practice of this court, where the record contains no hill of exceptions and the pleadings are sufficient to support the judgment of the trial court, it will he affirmed.</p>

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

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

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

<p>Appeal: Final Oeder. An order sustaining a general demurrer to a petition, not followed by a judgment of dismissal or otter final disposition of tte case, is not a final order or judgment, and is not reviewable in ttis court.</p>

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

<p>Liquor License: Power oe Village Trustees. It is competent for a board of village trustees to provide by ordinance for a trial, before themselves, of a complaint against a saloon-keeper for alleged violation of the regulations of the statute and ordinances with reference to the sale of intoxicating liquors, and upon Ms conviction, as a result of such trial, to revoke his license.</p>

<p>1. Attorney and Client: Contract: Assignment. A contract for legar services is personal in its nature and cannot be assigned by one party without the consent of the other.</p> <p>2. -: -: Annulment. Death or disability, which renders the performance of such a contract impossible, annuls the contract.</p>

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

<p>1. Partition: Sale: Confirmation. After the filing of a stipulation signed by the attorneys of both parties, agreeing that an order of sale in a partition case and all proceedings thereunder be vacated, a confirmation of such sale without a consideration and disposition of the stipulation is an irregularity within the meaning of section 602 of the code.</p> <p>2. -: --: Motion to Vacate. In a motion to set aside the confirmation of a judicial sale for irregularities under the provisions of section 602 of the code, it is sufficient to allege the existence of irregularities which would have been sufficient to avoid the sale had they been considered at the time of confirmation.</p> <p>3. Interlocutory Orders: Vacating. “An interlocutory order or ruling may be reversed and vacated at -a subsequent term by the same court, without compliance with the provisions of section 602 et sequitur of the code, relating to the vacation and modification of judgments and final orders at a term subsequent to that in which rendered.” Huffman v. Rhodes, 72 Neb. 57.</p> <p>4. -: -: Review. Unless an abuse of discretion of the trial court in setting aside an interlocutory order is shown, an appellate court will not interfere therewith.</p> <p>5. Judicial Sale: Motion to Vacate: Waiver. A motion to set aside the confirmation of a judicial sale is not waived by later filing a motion to set aside interlocutory orders, and no prejudicial error results in considering both motions at the same time.</p>

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

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

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

<p>Indians: Allottee of Lands: Estate of Widow. The widow of an allottee of Omaha Indian lands is entitled to a life estate in the equitable fee of her deceased husband, with remainder over to the issue of the marriage, or to the surviving father or mother of the husband if no issue survive her.</p>

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

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

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

<p>Trial: Dikectiito Vebdict. Where the evidence upon a question of fact material to the issue is conflicting and such that reasonable minds might reach different conclusions, the question is one for the jury, and it is error for the court to direct a verdict.</p>

<p>1. Contract: Validity. A promise made in consideration of an agreement to refrain from resisting the probate of a will is not void as against public policy where no persons or interests other than the persons and interests of the contracting parties are preju-dicially affected thereby.</p> <p>2. -: Specific Pebjtoemance. Such a promise is not without consideration and will be enforced.</p>

<p>1. Justice of the Peace: Jurisdiction. Defective notice of a conditional order vacating a .default judgDient before a justice of the peace does not deprive the justice of jurisdiction over the subject matter, and he may, on application of the moving party, continue the hearing for proper notice.</p> <p>2.-: -: Waives. An objection to the jurisdiction over the subject matter is a waiver of objection to jurisdiction over the person.</p>

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

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

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

<p>1. Railroads: Liability. A railroad company is not liable for injuries caused by a team taking frigbt at the ordinary operation of a train upon its road. Hendricks v. Fremont, I?. & M. V. R. Co., 67 Neb. 120, followed and approved. 2. Evidence examined, and held insufficient to sustain tlie judgment of the trial court.</p>

<p>1. Insurance: Application. "Where a married woman is the holder of a policy of life insurance, it is not a false representation for her to sign a certificate, when she is pregnant, stating that she is in sound hodily health,- if the certificate is otherwise true.</p> <p>2. -: -. Where a married woman is an applicant for life insurance in.a company that issues policies on the lives of married women, she is not required to inform the company of evidence of pregnancy discovered subsequently to her physical examination and application.</p>

<p>Appeal from the district court for Douglas county: Howard Kennedy, Jr., Judge.</p>

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

<p>1. Attorney and Client. An attorney may, by virtue of bis retainer, receive and receipt for money due bis client in a case in which be is employed, and tbe act will bind his client, unless tbe party paying it bad notice of a revocation of tbe attorney’s authority to act in tbe case.</p> <p>2. Cities: Notice. Notice affecting a city must, under section 7453, Ann. St., be in writing and be served on tbe mayor, or acting mayor, or, in tbe absence of both from tbe city, upon tne city clerk.</p> <p>3. Petition: Objections to Evidence. An objection to tbe. admission of evidence on tbe ground that tbe petition does not state facts sufficient to constitute a cause of action may be taken at any time during tbe progress of tbe trial, and is not waived by answer or failure to demur. Where the objection is sustained, and tbe plaintiff elects to stand on bis petition, or does not take leave to amend the same, judgment should be entered for tbe defendant.</p> <p>4. Officers: Assignment oe Saiart. Whether a city officer may bind tbe city by assigning bis salary prior to tbe issue of a warrant therefor not discussed or determined.</p>

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

<p>1. Slander: Question fob Juey. Unless words upon which a charge oí slander is based are plain and unambiguous in their meaning, the meaning intended by the defendant and the understanding of those hearing him should be left for the jury to determine.</p> <p>2. -. To charge a woman with being a lewd character, of using her body for commercial purposes, and with keeping a gambling room is actionable per se.</p>

<p>Costs: Change oe Venue. The county from which a change of venue ■ in a criminal ease is taken is not liable to the county in which the 'trial is had for the fees of such jurors of the regular panel as did not sit upon the trial of that case.</p>

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

<p>Appeal from tbe district court for Buffalo county: Bruno O. Hostetler, Judge.</p>

<p>1. Appeal: Motion for New Trial. The change made by the act of 1905 in the procedure to obtain a review of a judgment at law in a civil case leaves the rule with respect to the necessity fit a motion for a new trial unchanged.</p> <p>2. ÍTew Trial: Pbooepttre. The statute requiring a motion for a new trial to he in writing and filed during the term at which the “verdict, report or decision” is rendered, and, except for the cause of newly discovered evidence, within three days after the verdict or decision is rendered, unless unavoidably prevented, is mandatory.</p> <p>3. -: Power of Court. A court has no authority to rule on a motion for a new trial which has not been filed and is not before it, in anticipation that such motion may be subsequently filed.</p> <p>4. Appeal: Motion for New Trial. A motion for a new trial, filed out of time and not coming within any of the exceptions of the statute, is of no avail for the purposes of a review of errors in this court.</p>

<p>1. Judgment: Default. Where there is ah answer on file setting up a valid defense, the fact that the defendant fails to appear either in person or by attorney when a cause is reached for trial does not entitle the plaintiff to a judgment without proof of the facts constituting his cause of action, unless the facts admitted by the answer make out a prima facie case in his favor.</p> <p>2. Appeal: Presumptions. The presumptions in favor of the regularity of the proceedings of superior courts are of no avail against facts shown by the record itself.</p> <p>3. Judgment on Pleadings: Review. Where a judgment at law is rendered on the pleadings alone, a motion for a new trial is not necessary to obtain a review in this court.</p>

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

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

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

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

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

<p>Constitutional Law: Electioks: Power oe CoitrIs. Section 137 of the “Australian ballot law” (Ann. St., sec. 5775) is not in conflict ■with the constitution, and confers power upon county courts and upon judges of the district and supreme courts at chambers to summarily review the action of the officer with whom an original certificate of nomination is filed, and to make such order therein as the law requires.</p>

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

<p>Corporations: Pkocess. Section 65 of tile code applies to corporations as well as individuáis, and, if an action is rightly brought in one county, summons may be issued to another county for service upon a corporation.</p>

<p>Appeal from the district court for Douglas county: Willis G-. Sears, Judge.</p>

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

<p>1. Insurance: Household Furniture. Husband and wife have each and both a pecuniary and insurable interest in all articles comprised & the furniture of their household, or which are necessary or convenient and actually in use in the maintenance of their domestic relation, regardless of whose money paid for them, or by what means or from what sources they were obtained.</p> <p>2. -- — : Assignment: Rights or Insured. When an insurance company consents in writing to an assignment of a policy of fire insurance without restriction or limitation with reference to the purposes of the assignment or the extent of the interest assigned, which is in fact, as between the parties, less than the absolute or entire interest or rights of the insured under the contract, and when, after a loss has occurred, but 'before payment has been made, the rights and interests of the insured are brought to the knowledge of the company, they cannot be defeated or impaired by a compromise and settlement and attempted satisfaction between the latter and the assignee without the consent of the insured.</p> <p>3. -: Designation oe Insured. When there is no fraud, accident or mistake as to the description or ownership of property, or articles intended to be covered by a fire insurance policy, and the person intended to be insured and who pays the premium is in fact the owner of the same, or has an insurable interest therein, it is immaterial by what name he is designated in the policy.</p>

<p>Evidence examined, and found to support the findings and judgment of the district court.</p>

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

<p>Costs. Nothing can he taxed as costs in an action except such items as are prescribed by statute or are expressly authorized by the consent or agreement of the parties.</p>

<p>Deed: Construction. A deed purporting to convey a half of a government quarter section of land that has not been previously subdivided by plat or survey, or otherwise, is operative as a conveyance ' of a quantitative half of the tract without regard to the rules of the United States land department with reference to the' subdivision of such tracts.</p>

<p>1. Railroads: Fences: Question for Jury. Evidence examined, and held, that whether or not the defendant railroad company was excused for not fencing its track at the unincorporated station of Adelia was a question of fact that should have been submitted to the jury under proper instructions.</p> <p>2. Case Followed. Chicago, B. ,<£ Q. R. Co, v. Sevcelc, 72 Neb. 793, followed and approved.</p>

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

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

<p>1. Executors and Administrators: Contract for Lecal Services. Wliere a contract for legal services which, is reasonable and beneficial to the estate has been entered into by an administrator or executor, such contract may be upheld and enforced by the court having charge of the administration of the estate.</p> <p>2. Attorney and Client: Contract: Estoppel. An attorney at law who agrees with an executor or administrator to conduct certain legal business of the estate for a sum named is estopped to deny that such sum is a reasonable consideration for the services rendered pursuant to such agreement.</p>

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

<p>1. Master and Servant: Injury: Evidence. In ail action for damages caused by alleged defects in defendant’s machinery, evidence »f the same defective condition immediately before and after the accident complained of is admissible for the purpose of proving the condition of the machinery, and, as to its prior condition, for the additional purpose of showing knowledge on the part of the defendant.</p> <p>⅞ Evidence: Declarations. In an action for the negligent killing of an employee by á railroad company, alleged as the result of a defective condition in the engine, evidence of a declaration of the engineer in charge regarding such defective condition, made at the time, and under such circumstances as to raise the presumption that it was an unpremeditated and spontaneous explanation of the casualty, is admissible as a part of the res gestw.</p> <p>1. Appeal: Record. To obtain a review of the rulings of the district court on objections to alleged misconduct of counsel in addressing the jury, the record must show, not only that objections .were made, but the matter objected to, and the rulings of the court thereon.</p> <p>4. Trial: Withdrawing Rest. The district court may permit a party to withdraw his rest and introduce additional evidence, when it appears that the same is required in the furtherance of justice, and no undue advantage is thereby acquired over the adverse party.</p>

<p>1. Contract: Ratification. When a party who claimed he had been fraudulently induced to enter into a contract by reason of the concealment of material facts afterwards employs counsel, and after full investigation ratifies and indorses the contract and accepts benefits under it, he is bound by such ratification, and cannot again question the validity of the original contract.</p> <p>2. Evidence examined, and held to uphold the judgment of the district court</p>

<p>Trust Funds: Petition: Sufficiency. In an action to subject a trust fund to the payment of services rendered, it is necessary to allege not only the existence of the trust fund, but that some amount remains due for such services.</p>

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

<p>Fraudulent Conveyances: Evidence. In an action to set aside an alleged fraudulent conveyance, it appeared that the debtor, prior to the date of the judgment sought to be enforced, was indebted to various parties in large sums; that it was then agreed between the debtor and his wife that if she should pay the indebtedness, which at that time exceeded the value of the land, she should have a deed to the premises. It also appeared that the debtor’s wife had advanced most, if not all, of the purchase price of the farm; that the wife, in pursuance of the agreement, paid the indebtedness of her husband from her own funds in an amount exceeding the value of the land at the time the agreement was made, and secured a deed to the premises; that the creditor at the time of extending credit to the husband had full knowledge of the contract of the wife to purchase. Held, That the wife’s deed could not be set aside by the creditors of the husband as a fraudulent conveyance.</p>

<p>1. Review: Evidente. The verdict of a jury based upon conflicting evidence will not be set aside by this court when sustained by competent evidence.</p> <p>2.-: Hakmxisss Error. Rulings of the trial court upon the reception and rejection of evidence, held without prejudicial error.</p>

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

<p>Appeal from the district court for Douglas county: Howard Kennedy, Jr., Judge.</p>

<p>1. Justice of the Peace: Judgment: Entry. The entry of a judgment by a justice of the peace, although informal and not technically exact, is sufficient as against a collateral attack, if his docket entry, taken as a whole, shows that he reached and entered a conclusion as a final determination of the action then pending before him. Fowler v. Thomsen, 68 Neb. 578.</p> <p>2. Conversion. The plaintiff in a replevin action cannot be held for conversion of the property taken on the writ pending a trial of the cause, unless he has sold or otherwise appropriated the property, and such an action will not lie after judgment finding him entitled to the possession on account of a special ownership, unless he has done some act in relation to the property inconsistent with the right conferred on him by th.e judgment.</p>

<p>New Trial: Joint Motion. Two defendants made separate answers, alleging separate and distinct defences to tlie plaintiff’s petition. Tlie court directed a verdict for one defendant and a finding of 6 cents damages in favor of tlie plaintiff against the other defendant. Plaintiff filed a joint motion for a new trial, which was overruled. The verdict being good as to one defendant, the motion was properly overruled, and the judgment as to both must stand. Lydiclc v. (Hll, 68 Neb. 273.</p>

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

<p>Appeal from the district court for Sherman county: Bruno O. Hostetler, Judge.</p>

<p>Appeal from the district court' for Dixon county: Guy T. Graves, Judge.</p>

<p>1. Suits: Consolidation. Where the defendant in a suit to quiet title files a separate suit against the plaintiffs asking the same relief against them with respect to the same property, and the two suits are consolidated, the parties are in no different position than if, instead of a separate suit, the plaintiff in such separate suit had filed a cross-petition in the original suit asking for a decree quieting her title.</p> <p>•2. Decrees: Vacation. Although separate decrees are entered after such consolidation, they are, in effect, one decree, and an order vacating the one vacates both.</p> <p>3. Record, Correction of: Review. Error cannot he predicated on an' order correcting a record, making it show expressly what it already shows by necessary implication.</p>

<p>Evidence examined, and 7ield sufficient to sustain the verdict of the Jury.</p>

<p>1. Mutual Insurance Companies: Assessments. Mutual fire insurance companies cannot make assessments upon their members, as provided in section 12, ch. 3'3, laws 1891, until loss has first occurred, unless such assessments are authorized by a two-thirds vote of their directors.</p> <p>2. -■: -. 'When it is sought to avoid a policy of insurance for the nonpayment of an assessment, not made for the payment of a loss, the records of the company are insufficient to establish the validity of such assessment, unless it affirmatively appears therefrom that the statute has been complied with.</p>

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

<p>1. Principal and Agent. An agent cannot avail Mmself of any advantage his agency may give him to profit out of the subject of the agency beyond the agreed compensation for his services.</p> <p>2. Contract: Supreme Court Reports, PublioatioN of. The contract of,the state with the defendant to print and manufacture for the state certain volumes of the supreme court reports, and that the “plates” upon which such printing was done should be delivered to, and become the property of, the state, did not constitute the defendant the agent of the state in the “publishing business.”</p> <p>3. -:-. Under such contract the law will imply an agreement on the part of the defendant not to use the property of the state, intrusted to its care to enable it to perform its contract with the state, for any other purpose than that contemplated in the contract.. By a violation of such implied agreement it would become liable to the state for the value of such unauthorized use, . and also for any injury done to the property thereby.</p> <p>4. Copyright. The word copyright is generally .used to mean the “exclusive right of multiplying copies of a work already published.” This right can only be preserved by complying with the act of congress for that purpose. The word has sometimes also been used to denote the right which an author has in his literary work to keep it for his own private use, to publish' it, or to refrain from publishing it, at his pleasure. This right exists at common law. It does not depend upon any statute. It can only exist as long as tlie work is kept private. If it is published without complying with the copyright act the right is abandoned.</p> <p>5. Literary Property: Contbact. The literary matter intrusted to the defendant to enable it to perform its contract with the state was not copyrighted, and had already been given to the public. Any citizen of the state had full right to print and sell the same on his own account. The law therefore will not imply an agreement on the part of the defendant not to manufacture and sell volumes containing such literary matter on its own account, there being no such limitation in the contract between the parties.</p>

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

<p>1. Criminal Law: Plea in Abatement. Where a plea in abatement in a criminal prosecution presents questions of law only, it is proper for the trial court to determine such questions without the intervention of a jury.</p> <p>2. -:-'CouNTy'h3í>üBT: Jurisdiction. A county court or county juSge has the sameTpU^ers and jurisdiction in criminal matters ^4 a justice of the peacé^nd may entertain a complaint, issue y a warrant, conduct the preliminary hearing in a ease where , the offense is beyond his jurisdiction, and may hold the defendant to bail for his appearance in the district court</p> <p>3. Statutes: Enactment: Evidence. An enrolled bill, as found on file in the office of the secretary of state, hearing the signature of the legislative officers and approved by the governor, is ■prima fade evidence of its passage, and cannot be overthrown by the legislative journals where they are silent on that matter.</p> <p>4. Gaming: Evidence. Held, That the evidence contained in the bill of exceptions is sufficient to sustain a conviction for a’ violation of the provisions of section 215 of the criminal code.</p>

<p>1. 'Witness, Bribery of: Information. An. information for tbe crime of attempting to corrupt a witness must allege that the person sought to he corrupted was a witness; that the defendant knew such person to he a witness, or must state such facts constituting the offense as show conclusively that the defendant had such knowledge. "</p> <p>2. —■-. One who has not been summoned or recognized as a witness in a pending suit, and who is not acquainted with either of the parties thereto, and has no knowledge of any fact either direct or collateral which may he the subject of inquiry therein, is not a witness within the meaning of section 164 of the criminal code.</p> <p>3.-: Evidence. On the trial of one charged with the crime of attempting to corrupt a witness, it is reversible error to allow the state to introduce evidence tending to show that the defendant offered a person the sum of $500 to steal a written instrument called a certain power of attorney, where the information contains no charge of that kind or nature.</p>

<p>1. Counties: Bridge Repairs. A county which refuses to enter'into a contract with, an adjoining county to repair a bridge across a stream dividing the counties is liable to the county making the repairs under contract for “such proportion of the cost of making said repairs as it ought to pay, not exceeding one-half of the full amount so expended,” when the county making the repairs has followed the procedure pointed out by the statute as to notice, etc.</p> <p>2. -: -: Notice. Where the only notice served under the statute notified the adjoining county that a bridge across a stream dividing the two counties was “unsafe for public travel and that same must be repaired to make it safe for public passage,” the , county so notified cannot be compelled to contribute toward the cost of new ice breaks not specified in nor contemplated in the notice, and not necessary to make the bridge safe for public travel.</p> <p>3. -: -: Issues. Where the proper steps have been taken to render an adjoining county liable for the repair of such abridge, and where an issue is raised as to the necessity of the repairs or as to the amount paid being more than the actual and reasonable cost thereof, then the amount that the defaulting county ought to pay is a question for the jury, but, if no such issue is tendered, the county in default is liable for one-half of the cost of repairs.</p> <p>4. -: -. The fact that a bridge across the Platte river where it divides the counties of Dodge and Saunders is not one continuous structure, trat consists of two separate portions separated by an island, one of which portions is entirely within Dodge county,- does not, under the circumstances, relieve Saunders county from the burden of contributing to the repair of the entire structure.</p>

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

<p>Taxation: Assessment. The expression “money deposited in bank,” as used in section 4 of the revenue act of 1903, is intended to include money on general deposit in bank.</p>

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

<p>Taxation: Equalization: Appeal. On appeal from an order of a board of equalization in the matter of assessment of property for taxation, the cause must be tried on the questions raised by the complaint before that tribunal. Nebraska Telephone Oo. v. Sail County, 75 Neb. 405, followed and approved.</p>

<p>Petition examined, and held obnoxious to a general demurrer under the former decision of this court in New Omaha T.-H. E. L. Oo. v. Anderson, 73 Neh. 84, which is herein followed and approved.</p>

<p>Appeal from the district court for Lancaster county: Albert J. Oornispi, Judge.</p>

<p>1. School Districts: Indebtedness. Prior to the passage of the act of February 26, 1879 (laws 1879, p. 170), providing for the issuing and payment of school district bonds, territory detached from a school district, which was subject to an indebtedness, might be held equitably liable to such district for its proportionate share of the indebtedness.</p> <p>2. -: ENFORCEMENT of Lesxlities. But such liability could not be enforced at the suit of the judgment creditor, except on allegation and proof of the fact that there was not enough property remaining in. the district originally liable to pay the existing indebtedness.</p> <p>3. Intervening petition examined, and held not sufficient to state a cause of action.</p>

<p>1. Mechanics’ Liens: Liability op Vendor. Where a vendor and ven-dee cooperate in plans for the erection of improvements upon real estate covered by their agreement, the interest of the vendor, as well as that of the vendee, is bound for the payment of liens for labor and material which have been furnished for such improvements.</p> <p>2. -: Statement of Account. Where a contract is entered into for a specific sum for labor or material, and is complete within itself, and is filed with the statement of the lien, a more detailed statement of the account is unnecessary.</p> <p>3. -: DESCRIPTION of Property. In an affidavit for a mechanic’s lien, if there appear enongh in the description to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty, it will be sufficient. White Lake Lumber Go., v. Russell, 22 Neb. 126, followed and approved.</p> <p>4. Evidence examined, and held sufficient to sustain the decree of the district court as to the liens filed herein.</p> <p>5. Evidence examined, and held insufficient to show defendant Daniel W. Ryckman entitled to affirmative relief.</p>

<p>1. Sales. The former opinion, in this case, 72 Neb. 907, examined and adhered to.</p> <p>2. Trial: Refusal to Instruct. In the trial of an action at law, it is reversible error to refuse to submit to the jury a legal defense properly pleaded and supported by competent evidence.</p> <p>3. Sales: Dama&es.' 'Where the vendee, under a contract of purchase, refuses to receive the goods contracted for, the measure of the vendor’s damage is the difference between the contract price of the goods and their reasonable market value at the time and place of delivery.</p>

<p>1. Cities: Wabds. Under the provisions of section 2, art. I, ch. 14, Comp. St 1903, the mayor and council of a city of the second class may change the number and boundaries of its wards, subject to the limitation therein contained that it shall not have less than two nor more than six wards.</p> <p>2. Partnership: Freeholders. "Where a partnership firm is the owner in fee of real estate situated in this state, each member of such partnership firm is possessed of a freehold interest in such realty.</p> <p>3. liquor license: Evidence. Evidence examined, and held sufficient to sustain the judgment of the trial court.</p>

<p>1. Foreign Corporations, Actions Against: Process. Under the provisions of sections 73, 75 of the code, a citizen of this state, who has a cause of action against a foreign corporation growing out of business transactions in this state, may have recourse to the courts of this state by the service of process upon the managing agent of such corporation.</p> <p>2. ■■■ : Managing Agent. An agent of a foreign corporation, whose contract of agency demands of him the exercise of judgment in the business matters of his principal, and who has charge of the business of his principal in the territory covered by his contract, is a managing agent within the meaning of sections 73, 75 of the code, providing for the service of summons upon the managing-agent of a foreign corporation.</p>

<p>Appeal: Motion for New Tkial. A.motion for a new trial on tlie ground of an atrase of discretion on the part of the trial court in proceeding with the trial in the absence .of defendants and their counsel is itself addressed to the sound discretion of the court, and the judgment will not be reversed by the reviewing court unless an abuse of discretion is shown.</p>

<p>Garnishment: Exempt Waqes: Nonresidents. A nonresident of this state is not entitled to the benefits of, and cannot maintain an action based on, the act entitled “An act to provide for the better protection of the earnings, of laborers, servants and other employees of corporations, firms, or individuals engaged in interstate business,” being sections 531c-531f of the code.</p>

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

<p>Appeal from the district court for Douglas county: Alexander (3. Troup, Judge.</p>

<p>Master and Servant: Action fob Damages: Directing Verdict. It is error to hold, as a matter of law, that an employee 24 years old, of average intelligence and fair education, is chargeable with knowledge that to throw a bucket of water into the fire box of a smelting furnace, containing a bed of highly heated coals, about 9 feet long, 3 or 4 feet wide and '3 feet deep, is liable to result in a dangerous explosion, where the evidence warrants the inference that he did the act in obedience to an order from the foreman under whom he worked.</p>

<p>Wills: Appeal: Relaxing Costs, The power of the court to act under the provisions of section 14, ch. 20, Comp. St. 1903, relating to appeals in probate matters, may be invoked by motion to correct the judgment, made at the same term.</p>

<p>1. Quieting Title: Limitations. The statute of limitations commences to run against .an action brought under the provisions of section 57, eh. 73, Comp. St., from the time the adverse claim attaches.</p> <p>2. -: -. The fact that certain, of the plaintiffs in such an action are minors, who claim title through descent, does not toll the statute, where it appears that the statute had commenced to run during the lifetime of their ancestors.</p>

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