Volume 78 — Nebraska Reports

<p>1. Rape: Evidence. The testimony of the prosecuting witness alone will not support a conviction of the crime of rape. Her testimony must be corroborated by other evidence.</p> <p>2. -: Corroborative Evidence. Evidence that a young man has been “keeping company” with a young woman under 18 years of age, and that they were frequently together, does not of itself corroborate her testimony that he was guilty of the crime. of rape under the statute.</p>

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

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

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

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

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

<p>1. Railroads: Evidence: Presumption oe Negligence. In an action against a railroad company for damage for loss by fire alleged to have been set out from one of defendant’s engines, proof of the fact that the damage did result from fire so set out, without any fault on une part of the complainant, is sufficient to raise a presumption of negligence in the management or equipment of the engine.</p> <p>2. Instruction: Review. In such a case, however, it is prejudicial error to instruct the jury that, if the evidence is evenly balanced on the question of defendant’s negligence, they should find a verdict for plaintiff.</p>

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

<p>1, Carriers: Shipment oe Cattle. When cattle have been delivered to and accepted by a railroad company in its loading pens for immediate shipment, the company is liable as a common carrier for damages to the cattle from the time of such delivery. Chicago, B. & Q. B. Co. v. Powers, 73 Neb. Neb. 816, examined and distinguished.</p> <p>----- Delayed Shipments. A railroad company is not an insurer of the arrival of its trains on schedule time in the transportation of live stock, but, where there is a material delay in the delivery of the stock, the company must, to exonerate itself from liability, show that the delay arose from some cause other than its own negligence.</p> <p>3. -•: -. Under the constitution and statutes of this state, the liability of a railroad company for unnecessary and unreasonanle delay in the shipment of live stock is the same whether the contract of shipment is a written or an oral one.</p> <p>4. Instructions: Review. Action of the trial court in giving and refusing instructions examined, and held not prejudicial.</p>

<p>I. Appeal: Dismissal. It is error for the district court to dismiss an appeal from the judgment of a county court for an insufficient bond, where the bond given contains all the statutory provisions and is signed by a surety and approved by the county judge.</p> <p>2. -: Bond. If such bond is defective appellant should be allowed to provide a new and sufficient bond.</p> <p>3. Appeal Bond: Signature. The word “Cashier” appended to the signature of a surety on an appeal bond is merely descriptio persones.</p>

<p>1. Evidence examined, and held sufficient to sustain the judgment of the trial court under the instruction given. •</p> <p>2. Law of Case. Where an instruction of the trial court is concurred in by each of the parties to the action, it will be treated on review as the law of the case.</p> <p>3 Contributory negligence is an affirmative defense, which must be pleaded, and ordinarily involves questions of fact for the determination of the jury.</p> <p>4. Carriers: Shipping Contract. A condition in a contract for the shipment of live stock by a railway company, which provides that, unless claims for loss, damage or detention are presented within ten days from the date of the unloading of said stock at destination, and before said stock has been mingled with other stock, such claims shall be deemed to be waived, and the carriers and each thereof shall be discharged from liability, is in violation of the prohibition of section 4, art. XI of the constitution of Nebraska.</p> <p>5. Evidence: Foreign Statutes. The statutes and constitution of another state or territory cannot be proved by parol, under the provisions of section 396 of the code.</p> <p>6. -: -: Presumptions. In the absence of proof to the contrary, the constitution and laws in force in this state will be presumed to have been in force at the place of the making of the contract which is in issue.</p>

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

<p>1. Highways: Location. A commissioner appointed to examine into the expediency of a proposed road should, upon recommending its establishment, cause it to be surveyed and plainly marked, if the precise location cannot otherwise be given.</p> <p>2. -: -: Waiver. An irregularity in the report of a road commissioner, such as an indefinite description, is waived by the filing of a claim for damages on account of the establishment of such road.</p> <p>3.--•: Injunction. An injunction cannot be maintained to prevent the establishment of a highway by one who has filed a claim for damages on account of the establishment thereof.</p>

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

<p>Judgment: Res Judicata. When a party who claims a lien on real estate on account of detached interest coupons is properly made a party in an action by another to foreclose the mortgage, and makes default therein, he is barred from bringing an action to foreclose on hia coupons, after foreclosure and sale in the former proceedings, when the petition therein sufficiently puts in issue ' the facts upon which he must rely to recover.</p>

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

<p>1. Reformation of Instruments. A court of equity will reform a written contract when the proof is clear, convincing and satisfactory, and free from reasonable controversy that a mistake was made in omitting a material provision agreed to by both parties.</p> <p>2. Contracts: Vacation: Evidence. Evidence examined, and held to require a finding that a written contract prohibiting a physician from practicing medicine and surgery within a certain territory was not set aside, canceled and superseded by a subsequent parol agreement.</p> <p>3. Harmless Error. Rulings of the trial court on the admission and rejection of evidence examined, and held not prejudicial error.</p>

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

<p>1. Schools: Expulsion of Pupils. School boards are, by section 11079, Ann. St., authorized to suspend or expel a pnpil from the public schools of this state for gross misdemeanors or persistent disobedience, and this without notice to the pupil or his parents and without any formal trial.</p> <p>2. -: Reinstatement of Pupils. The board may adopt any mode of procedure in obtaining information or evidence of the conduct of the pupil which it deems best, but in an action brought against its members to procure the reinstatement of the pupil his misconduct can only be shown by witnesses cognizant of the facts.</p> <p>3. Mandamus: Peooeotjee. If the relator in an action for a writ of - mandamus refuses to produce evidence in support of the allegations of his petition on the case being called for trial, the case on motion of the respondent should be dismissed; but the respondent, by assuming the burden and introducing evidence in support of his" defense, waives the error and the case must then be determined on the evidence. Union P. B. Go. v. Mertes, 35 Neb. 204.</p>

<p>1. Bankruptcy: Discharge: Debts Fraudulently Contracted. One who- collects rents as the agent of another is acting in a fiduciary capacity and holds the amount so collected in trust for his principal; or if, without authority so to do, he collects rents due his employer and converts the same, he becomes indebted to his employer to the amount of the rents collected and the debt so created is fraudulently contracted. In either event a discharge in bankruptcy does not release him from the debt so contracted.</p> <p>2. Injunction: Action on Bond: Damages. The plaintiffs took out an execution on a judgment in their favor against one Beddeo, and the sheriff levied on property of Beddeo sufficient to satisfy the same. Beddeo thereupon obtained an injunction against the enforcement of the judgment, and one Means became his surety on the injunction bond. Within four months from the levy of the execution Beddeo was, on proceedings duly instituted in the district court of the United .States, by his creditors declared a bankrupt and subsequently duly discharged. The trustee appointed in the bankruptcy proceedings took possession of the property levied on by the sheriff and administered the same as a part of the bankrupt estate. The injunction action instituted by Beddeo was dismissed and the injunction dissolved. An action was brought on the injunction bond, in which it was sought to recover the full amount of the judgment enjoined by Beddeo and other damages alleged in consequence of the wrongful issue of the injunction. Held, That as the sale under Stull Brothers’ execution would have taken place prior to the institution of bankruptcy proceedings against Beddeo, the injunction issued against the sale was the direct cause of Stull Brothers’ inability to collect their judgment, and the amount of that judgment a proper element of damages in a suit on the injunction bond.</p> <p>1. Principal and Surety: Discharge of Principal in Bankruptcy. A surety on an injunction bond, given in a suit brought to restrain the enforcement of a judgment, is not released from liability thereon by the discharge of his principal in bankruptcy.</p> <p>2. Injunction: Action on Bond: Damages. In an action on such bond, the extent to which the amount collectible on the judgment has been reduced in consequence of the. injunction is a proper element of damage.</p> <p>3. Bankruptcy: Principal and Agent: Misappropriation of Funds. Whether a debt due from an agent to his principal for rent collected and converted to his own use is one created by fraud, embezzlement, misappropriation, or defalcation while acting in a fiduciary capacity, within section 17 of the bankruptcy act, quiere.</p> <p>4. Former opinion modified, and former judgment vacated.</p>

<p>1. Cities: Injury to Wipe: Liability to Husband. The city of Omaha, under its cnarter of 1903, is liable to tbe husband for consequential damages suffered by him in consequence of injuries to his wife caused from a defective street or sidewalk in the city.</p> <p>2. Written notice to the city given by the wife and conforming to the provisions of section 22, ch. 12«, Comp. St. 1903, which notice by its wording, or from the signature thereto, brings home to the city knowledge that the injured party is a married woman whose husband may suffer consequential damage arising from her injury, is sufficient to enable the husband to maintain the action.</p> <p>3.-: — . Whether the husband may maintain such action without notice of any kind given to the city, not discussed or determined.</p>

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

<p>Original application for writ of mandamus to compel respondent, a justice of the peace, to approve an appeal bond.</p>

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

<p>1. Trial: Special Findings: Motion eoe Judgment. Where the special findings of a jury can be reconciled with the general verdict under any proof that might have been made under the issues, a motion for judgment on the special findings, and notwithstanding the general verdict, should be denied.</p> <p>2. Special findings examined, and held not irreconcilable with the general verdict, ih view of the proof which might have been made under the issues, and insufficient to sustain the judgment.</p> <p>3. Verdict: Evidence: Review. Whether the evidence in an action at law is sufficient to sustain the verdict, or special findings of the jury, must be brought to the attention of the trial court by motion for a new trial, and a ruling had thereon, before a review thereof can he had in this court.</p>

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

<p>1. Dedication: Highways: Acceptance. Tlie acceptance of a grant of land to a county for road purposes may be shown by proof that the public authorities afterwards assumed control over it and improved a portion of it, and that it was used by the public as a highway.</p> <p>2. Evidence examined, and held insufficient to show the abandonment of a public road.</p>

<p>1. Negligence: Proximate Cause of Injury. To warrant a finding that a negligent act or omission, not amounting to a wanton wrong, is the proximate cause of an injury, it must appear that the injury was a natural or probable consequence thereof, and that it ought to have been foreseen in the light of attending circumstances.</p> <p>2. Master and Servant: Injury: Presumptions. Ordinarily, in forecasting the probable consequences of his own acts or omissions, an employer may rely on the presumption that each employee will exercise due care not only to avoid injury to himself, but to his coemployees.</p> <p>3. -: Defective Appliances. Although it may be shown that a truck furnished by an employer was defective, and that the defect therein was one of the factors which combined to produce an accident in which an employee was injured, yet if the employees were chargeable with notice that such truck was liable to he or to become1 defective, and voluntarily placed themselves in a position of peril with respect to it, and the injury was one that could not have occurred but for their having taken such position, the negligence of the injured party and coemployees, and not that of the employer, is the proximate cause of the injury.</p>

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

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

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

<p>1. Quieting Title: Action by Remaindermen. An action to quiet the title to real estate may be maintained by the remaindermen during the continuance of the particular estate.</p> <p>2. -: Limitations. In such case the statute of limitations commences to run at the time the adverse claim attaches.</p>

<p>Evidence examined, and held, insufficient to sustain the judgment</p>

<p>Insurance: Policy: Construction. In ease of conflict between tbe provisions of a life insurance policy and tbe statements contained in tbe application for insurance, tbe provisions of tbe policy will control.</p>

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

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

<p>Notes: Action: Evidence. The transferee of a negotiable promissory note who has purchased the same in the usual course of trade for value may maintain an action at law against the maker without proof of indorsement.</p>

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

<p>1. Taxation: Listing Personalty. By the provisions of section 28, art. I, ch. 77, Comp. St. 1903, every person in the possession and control of personal property in this state, either as agent, trustee, bailee, or otherwise, is required to list the same for taxation, and return in the schedule furnished him by the deputy assessor a description of the property, the name or names of the owner or owners thereof, and its value.</p> <p>2. Assessment: Refusal to List. Where a warehouseman, in possession and control of personal property as bailee for hire, fails to make the proper return thereof for assessment, and refuses to furnish the deputy assessor the name or names of the owner or owners, a description of such property, and the value thereof, and prevents him from examining the same, it is the duty of that officer to inform the assessor of such facts, and assess the property as goods under control of such warehouseman, by the best description he is able to make, and value the same according to his best judgment.</p> <p>3.-: Setting Aside. Such an assessment will not be set aside on the application of one whose conduct has made it necessary.</p>

Original application for a writ of mandamus to compel respondent to execute to relator a certificate of purchase for 80 acres of school land.

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

<p>Trial: Directing Verdict. The weight and credibility of testimony are for the determination of the jury, and not of the court, however conflicting or otherwise they may appear to the latter.</p>

<p>Appeal. If a plaintiff is denied an opportunity to prove his cause of action upon a sufficient pleading, it matters hot whether such denial be upon motion or demurrer, he is entitled, if he has not waived his right, to have an adverse judgment reviewed in this court.</p>

<p>1. Cities: Improvements: Benefits. Ordinarily the question whether property will be especially benefited by a street improvement is one of fact for the determination of a local board or officer malting it, and, in the absence of fraud,» mistake or a transgression of authority, such determination will not he reviewed by the courts.</p> <p>2. -: Assessments. One yyhose property is not taken or damaged by a street improvement cannot defeat a special assessment for benefits accruing to his property from such improvement, on the sole ground that others, whose property has been taken or damaged thereby, have waived their right to compensation in money and have accepted something else in lieu thereof.</p> <p>3. -: Improvements: Petition. An omission by a petitioner for a street improvement to note in the petition the date of his signature, as required by statute, will not have the effect to render the proceedings wholly void, and defeat an assessment for special benefits accruing from such improvement after the latter has been completed without objection 'by anybody.</p>

<p>1. Contract: Construction. “When the terms_of an agreement have been intended in a different sense by the parties to it, that sense is to prevail against either party in which he had reason to suppose the other understood it.” Code, sec. 341.</p> <p>2. Instructions examined, a'nd held to have fairly submitted the issues to the jury under a correct view of the law.</p> <p>3. Evidence held sufficient to support the verdict.</p>

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

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

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

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

<p>1. Taxation: Foreclosure: Publication oe Notice. Upon the filing of a petition for the foreclosure of taxes under the provisions of article IX, ch. 77, Comp. St. 1905, the county treasurer has authority to designate a paper for the publication of the notice of the pendency of the action if the county commissioners have failed so to do.</p> <p>2. -: Publication oe Notice: Compensation. As compensation for publishing such notice the printer is entitled to receive the sum of $1 for each square of 10 lines for the first insertion, and 50 cents a square for each subsequent insertion, including matters of description.</p>

<p>Executors and Administrators: Suit by Heirs. A suit in equity, brought to recover money due an estate of a deceased person alleged to be held in trust by defendants, cannot be maintained by the heirs or devisees. before the administration of the estate is terminated in the county court.</p> <p>1. Administrator De Bonis Hon. The term “administrator de tonis non," used in reference to the administration of estates by the courts of this state, means an administrator Who has been appointed in the place of a former administrator or executor who has ceased to be such after partial administration of the estate.</p> <p>2. -: Powers. The administrator de bonis non has all the powers of his predecessor, and may sue to recover funds in the hands of agents employed by his predecessor.</p> <p>3. Executors and Administrators: Suit by Heirs. When all the debts and charges against an estate of a decedent have been paid, nothing remaining but the formal statutory proceedings to settle the estate, and the administrator de bonis non refuses to bring an action to recover assets of the estate, the only heir at law and beneficiary under the will may maintain such action in equity, making the administrator de bonis non a party.</p> <p>4. Case Distinguished. Cox v. Teazel, 49 Neb. 343, distinguished, and our former opinion, ante, p. 250, vacated.</p>

<p>1. Schools: Officers De Facto. If, pursuant to an opinion of the state superintendent of public instruction, one of two contestants for the office of school director assumes the duties of the office and acts as such officer, he is while so acting a de facto officer of the district.</p> <p>2. Corporations: Contracts: Ratification. It is a general rule that corporate authority may ratify any act or contract made in its behalf which it might have lawfully done or made originally.</p>

<p>Sales: Rescission. The vendee commenced an action to recover partial payment made on a sale of personal property after the vendor had fully complied with all the conditions of the agreement on his part. While the action was pending the vendor sued out a writ of replevin, making the vendee and a railroad company, which'had possession of the goods, parties defendant, alleging that it was the absolute owner of the property. Held, That under these facts a rescission of the contract- of sale was effected, and that the vendee was entitled to recover advanced payments made upon the sale.</p>

<p>1. Intoxicating Liquors: Sales. A party having no knowledge to the contrary may deal with a person having charge and control of a saloon licensed to sell intoxicating liquors, on the presumption that such person is the owner and licensee thereof, or the duly authorized agent of such licensee.</p> <p>2. -: -: Validity. The courts will not enforce payment for a sale of liquors made hy one possessing no license therefor.</p>

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

<p>Appeal from the district court for Boone county: Jaimes R. Hanna, Judge.</p>

<p>1. Pleading: Waiver. Where no reply is filed, and a cause is tried and submitted on the theory that a material allegation of the answer is in issue, a claim that such allegation stands admitted comes too late, when made for the first time after verdict.</p> <p>2. Wills: Evidence. Where the mental capacity of a testator to make a will is put in issue when the will is offered for probate, a question calling for the opinion of a witness as to whether, at the time the will was made, the testator had sufficient mental capacity, or was able, to make a last will and testament, is improper, and the answer should be excluded.</p> <p>3. Trial: Objections. An objection to such question, that it is incompetent and calls for the opinion of the witness, is sufficiently specific.</p> <p>4. -: Waiver. Where a party objects to the reception of such evidence, and preserves his exception, he does not waive the error by subsequently introducing similar evidence for the purpose of meeting his adversary’s case, rebutting the evidence to which he excepted, but without any intention of abandoning his exceptions.</p>

<p>Guardian and Ward: Revocation of Appointment. Where a guardian places himself in a position with respect to the estate which brings his interests in conflict with those of his ward, he should be discharged and his letters revoked.</p>

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

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

<p>Insurance: Beneficial Associations: Public Policy. A rule of a fraternal benefit association, which requires an appeal from the action of its officers vested with authority to allow or reject death claims to the supreme body, whose action thereon is declared to be final, is unreasonable, and is void as against public policy.</p>

<p>Evidence examined, and heló sufficient to sustain the judgment.</p>

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

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

<p>1. Rape: Evidence. In a prosecution for rape, resistance by the female is an issue only so far as it is involved in the proof of her want of consent. To show that the assault was against her will, her resistance must be proportionate to the occasion, under the circumstances, and at the time of the act complained of. In ordinary cases there must be resistance to her utmost, or at least to the extent of her ability. In peculiar cases and under peculiar circumstances, a less degree may be sufficient.</p> <p>2. -: Instructions. Where the evidence shows that at the time of the commission of the alleged offense the prosecuting witness made no outcry and did not complain of the offense to others, but concealed it for about twenty days, an instruction that the jury should take these circumstances into consideration, with all the other evidence in the case, in determining the question of the guilt or innocence of the accused, is proper, and under the circumstances of this case it was prejudicial error to refuse to give the same when requested by the defendant, no instruction covering the same ground having been given by the court upon its own motion.</p> <p>3. Evidence examined, and held insufficient to support the verdict. ■</p>

<p>1. Street Railways: City Ordinances: Validity. An ordinance of a city, which requires street railway companies and other corporations holding franchises to use the streets of the city to file an application for a permit before entering upon and obstructing the streets, and which requires the applicant to file specifications of the manner in which the work is to be constructed, and to fix the location thereof, and requires it to give bond to hold the city-harmless for damages caused by the proposed work, and which gives the city council power to grant or refuse such permit, is not invalid as interfering with or violating the franchise rights of the company in the streets.</p> <p>2. -; -: Officers: Presumptions. The court will not presume that under such an ordinance the city authorities will act arbitrarily or abuse their discretion, but will presume that the ordinance will be construed according to its legal effect, and that if the proper conditions are met the permit will not be refused.</p>

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

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

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

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

<p>1. Descent and Distribution: Land Contract: Interest oe Vendee. A vendee in possession of land under a contract of purchase, on which part of the purchase price has been paid, holds equitable title to the land, which on his death descends to his heirs.</p> <p>2. Curtesy. Under our statute the husband is not entitled to an estate by the curtesy in lands of his deceased wife held by her under a contract of purchase. The estate of the wife to which the estate of curtesy may attach must be at the least a freehold.</p> <p>Courts: Stare Decisis. When a former decision of this court has established a rule of property, which has been relied upon for many years as the foundation of real estate titles, the court will not overturn such rule although it cannot assent to the reasoning upon which it is based.</p>

<p>1. Costs, Ketaxing After Term. While the award of costs made in a judgment cannot be changed after the term, except for some cause provided by statute for modifying a judgment 'after the term at which it was entered, this rule does not apply to an application made by a party to retax items of the costs illegally or through mistake taxed against him.</p> <p>2. -: Mileage. Witnesses in a civil action are not, under our statute, required to attend for examination except in the county of their residence, and the rule-should obtain generally that traveling fees should he taxed in their favor for the distance only that a subpoena compels their attendance.</p>

<p>1. Justice of the Peace: Judgment, Offer to Confess. Section 1004 of the code, which provides that, in an action brought before a justice of the peace, if the defendant, at any time before trial, offer to allow judgment to be taken against him for a specified sum, and the plaintiff reject such offer and fail to recover a sum equal to the offer, he cannot recover costs subsequently accruing, contemplates an offer made in terms that, when accepted as made, entitles the plaintiff to 'judgment therefor, and costs, without further litigation.</p> <p>2. -: -: Acceptance. An acceptance of such offer, coupled with the condition that the judgment shall include costs, is an acceptance of the offer according to its legal effect, and entitles the plaintiff to judgment for the amount offered, and costs, without further litigation.</p> <p>3. -: -: Withdrawal of Offer. Where such condition is coupled with an acceptance of the offer, and is rejected by the defendant, his rejection thereof amounts to a withdrawal of his offer, and leaves the parties standing, with respect to costs, as though the offer had not been made.</p>

<p>1. Appeal: Procedure. In case of an attempted appeal to tlie district court before a final judgment bas been rendered by the inferior court, the district court has no authority to remand the cause, with directions to the inferior court to render judgment and file a supplementary transcript and return thereof in the district court for the purpose of perfecting the attempted appeal, the proper course in such case being to dismiss the attempted appeal.</p> <p>2. Judgment: Validity. While section 1, ch. 20, Comp. St. 1905, provides that the terms of the county court shall begin on the first, and end on the third, Monday of each month, a judgment rendered by consent of parties, in a term case, outside the statutory term is not fo.r that reason void for want of jurisdiction.</p>

<p>1. Municipal Corporations: Incorporation. Towns and villages are incorporated in this state under the provisions of a general statute, hy resolution of the board of county commissioners, whose acts in that respect are ministerial.</p> <p>2. -: -: Powers oe County Boards. County boards have not been vested with authority to include large rural districts, not urban in character and having no unity of interest with the platted portion in the maintenance of municipal government, within the corporate limits of cities and villages.</p> <p>3. -; -: Review by Courts. Where the county board, in the incorporation of a village, has exceeded its powers and included within the corporate limits of the village agricultural land, not urban in character and having no unity of interest witli the platted portion in the maintenance of municipal government, the courts will, in a proper action, assume jurisdiction over the subject matter at the instance of the aggrieved parties and grant such relief as the circumstances may require.</p>

<p>Evidence held to be insufficient to sustain the decree.</p>

<p>Notes: Subrogation: Equities. Where a bank takes collateral under such circumstances as not to be an innocent holder, a surety of the principal debtor who pays the debt and receives the collateral held by the bank takes it subject to equities existing between the parties thereto.</p>

Original proceeding in quo warranto to determine tbe right of respondents to hold the office of state railway commissioners.

Original application for a writ of mandamus to compel respondent, as district judge, to set aside a writ of mandamus compelling relator to furnish cars, and a judgment for costs.

<p>1. Removal of Causes: Petition: Waiver. Merely formal defects in a petition to remove a cause from the state to the federal court are waived by appearing in the latter court and moving to remand on the ground that the alleged cause for removal does not exist.</p> <p>2. -: Jurisdiction. During the pendency in a United States circuit court, in a cause removed thereto from a state court, of a controversy over the question whether a sufficient ground for such removal exists, the state court is without jurisdiction to proceed, or to make any judgment or order in the suit.</p> <p>3. -; Judgment, Vacation of: Review. If a state court renders a judgment in a cause which, has been removed to a circuit court of the United States, during the pendency of a controversy in the latter court over the question Whether a sufficient ground for such removal exists, it is error to refuse to vacate such judgment upon a motion therefor, made at the term of its rendition, accompanied by a showing of the pendency of such controversy, although at the time of its rendition the records of the state court did not disclose that it was deprived of jurisdiction.</p>

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

<p>Damages: Review. An examination of the evidence discloses that the damages were assessed under the influence of passion or prejudice, and are excessive, hut the court is unahle to determine in what amount' they are so, and a new trial, not conditional upon a remittitur, is therefore ordered.</p>

<p>1. Occupying Claimant’s Act: Validity: Construction. The so-called “Occupying Claimant’s Act” (laws 1883, ch. 59), affording protection to persons not in the possession of disputed lands who have paid taxes and made lasting improvements thereon in good faith, claiming title to the same, and having an apparent title thereto derived connectedly by the public records from the United States or this state, is valid, and is applicable to lands of which adverse claimants had actual title at the time of its enactment.</p> <p>2. -: Improvements: Invalid Municipal Assessment. The right, under the foregoing statute, to compensation for lasting and valuable improvements is not affected by the fact that such improvements were made in supposed compliance with a municipal regulation which was void.</p> <p>3. - — .-:--. The owner of the real title to lands upon which improvements have been made, for which a claimant is entitled to reimbursement in a proceeding under the statute, cannot be compelled to convey the same to such claimant upon being paid or tendered the value thereof as appraised in such proceeding.</p>

<p>Principal and - Agent. A principal is bound by only such conduct and representations of his agent as occur in the course of his business by the latter, and are within the agent’s real or ostensible authority.</p> <p>1. Insurance: Action: Evidence. In an action on a life insurance policy, a -witness on'behalf of the plaintiff testified, on cross-examination to having heard the insured state, shortly before his death, that the premiums on the policy had all been paid. This testimony was permitted, without objection, to remain in the record. Held, To be some evidence of payment.</p> <p>2. New Trial: Newly Discovered Evidence. In an action on a life insurance policy issued by what is commonly called an old line life insurance company, it is not error to overrule a motion for a new trial on the ground of newly discovered evidence, where the claim of newly discovered evidence is grounded on statements alleged to have been made by the insured that he had not paid the premiums on the policy upon which the action was founded.</p> <p>3. -: Evidence. The possession by the defendant of an uncanceled receipt for a premium maturing before the death of the insured is not of itself sufficiently controlling to justify the trial court in setting aside the verdict of a jury upon motion for a new trial.</p>

<p>1. Insurance: Beneficial Associations: By-Laws. A by-law of a fraternal benefit society, which provides for the suspension of a member for nonpayment of monthly dues without other notice than that imparted by the by-law, is reasonable in its nature and will be upheld.</p> <p>2. Pleading: Sufficiency. A pleading which is attacked for the first time in this court on the ground that it does not state a cause of action, will be liberally construed. Omaha Nat. Bank v. Kiper, 60 Neb. 33, followed and approved.</p>

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

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

<p>Rulings of the trial court in the admission of evidence and the giving of instructions examined, and held without error.</p>

<p>1. Corporations: Transfer of Stock. The regulation of stock transfers is a legitimate subject of corporate legislation, in the form of by-laws, to enable the corporation to know who are stockholders, to whom dividends are payable, who are entitled to vote, and, where the company has a lien on the stock for debts due to it from the stockholders, to enable it to prevent a transfer in derogation of its rights.</p> <p>2.-: -. But such legislation will not be enforced beyond what is reasonably necessary to serve such purposes, where its enforcement would operate as an infringement on the property rights of others, or as an unreasonable restraint upon the transfer of property in the stock of the corporation.</p> <p>3. --: Statutory Regulations. Section 124, ch. 16, Comp. St. 1905, is not only definitive of the general powers of a corporation, but is also expressive of certain corporate qualities or properties, or consequences which follow the act of incorporation.</p> <p>4. -: -. The fifth clause of that section, which purports to give a corporation the power “to render the interest of the stockholders transferable,” was not intended to make the transferability of stock dependent on some affirmative act of the corporation authorizing its transfer, but to impress the stock with that quality as a consequence of the act of incorporation.</p> <p>5. -: By-Laws: Validity. A by-law of a corporation organized under the laws of this state, which limits the number of shares '■ which a person may hold, or forbids a transfer of stock by a stockholder to a nonstockholder without the consent of the directors, is void as an unreasonable restriction upon the transfer of property.</p>

<p>1. Real Estate Agents: Contracts: Signature. The word “subscribed” as used in section 74, ch. 73, Comp. St., 1905, relating to contracts between real estate brokers a'nd landowners, is synonymous with the word “signed.”</p> <p>2. -: -:--■ — . The requirement of said section that the contract be “subscribed” by both parties is met where the signatures of the parties are placed thereon, for the purpose of authenticating and giving force and effect to the contract, whether they he placed at the bottom, the top, or in the body of the instrument.</p> <p>3. Appeal: Pleading: Amendment. The right of a plaintiff to amend his petition cn appeal to the district court is governed by substantially the same rule as that governing the right of the ) 'aintiff to amend his petition in an action originally brought in that court; in either case the test is whether the identity of the cause of action is preserved.</p> <p>4. Cause of Action. By the phrase “cause of action,” as above used, is meant, not the formal statement of facts set forth in the petition, but the subject matter upon which the plaintiff grounds his right of recovery.</p>

<p>Real Estate Agents: Pleading: Demurrer. In an action to recover compensation for services rendered as a real estate broker, a petition which discloses on its face that the contract of agency was not in writing is open to attack by demurrer.</p>

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

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

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

<p>1. Constitutional Law. Revenue Act. Section 13, ch. 17, laws 1899, which provides the manner in which and by whom the shares of building and loan associations shall be listed for assessment, is not unconstitutional, and was not repealed by the provisions of the revenue law of 1903.</p> <p>2. Taxation: Building and Loan Associations. Such associations should be assessed in the manner indicated by that section, and an assessment of the amount of the mortgages taken to the association, which the assessor assumes are unpaid, cannot be upheld.</p>

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

<p>Parol Evidence. In the absence of ambiguity, and of fraud, accident or mistake, parol evidence is not admissible to assist in the interpretation of a written contract.</p>

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

<p>1. Bastardy: Evidence. In a prosecution for bastardy, where the testimony of the complainant shows that the first act of intercourse with the defendant was less than 252 days before the birth of the illegitimate child, the burden is upon the complainant to establish by a preponderance of the evidence that the child, alleged to have been begotten by such intercourse was of premature birth.</p> <p>2. Criminal Law: Practice. In such case, evidence tending to show the premature birth of the child should be offered in chief.</p> <p>3. -: Evidence: Witnesses: Competency. A professional nurse, having 15 years’ experience in obstetrical cases, and who assisted • at the birth of a child, is competent to testify as to her opinion whether or not the child was fully developed at the time of its birth.</p>

<p>1. Husband and Wife: Maintenance. A court of equity will entertain an action brought for alimony, and will grant the same, although no divorce or other relief is sought, where the wife is separated from the husband without her fault.</p> <p>2. Courts: Jurisdiction. The district courts of this state are courts of general equity jurisdiction, and are not limited in the exercise of such jurisdiction by statute.</p> <p>3. Husband and Wife: Maintenance: Process. Service by publication is authorized by section 77 of the code in an action by a wife for alimony and support of her child against the husband, who deserted his family and became a nonresident of the state, where the only relief sought is the appropriation of the real estate of the husband, situated in the county where the action is brought, to th) payment of the amount that should be allowed for such alimony and support. Such an action is substantially ore in rem, and the court has jurisdiction upon the completion of the service by publication to decree the relief sought.</p> <p>4. -: - — : Jurisdiction. Jurisdiction to subject property in such an action, within the territorial jurisdiction of the court, to its judgment may be acquired by the service of process by publication and the placing of the property in the hands of a receiver.</p> <p>5. -: -: -. In such an action, residence of the wife in the county where the property of the husband is situated is not required.</p>

<p>Homestead: Lease. A lease of a homestead for a period of five years is a conveyance within the meaning of section 6203, Ann. St., and is void unless executed and acknowledged by both husband and wife.</p>

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

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

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

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

<p>1. Pleading: Negative Pregnant. A negative pregnant is such a form of negative expression as may imply or carry within, it an affirmative.</p> <p>2. Mortgages. In order to constitute a mortgage the relation o£ ■ debtor and creditor must exist.</p> <p>3. Evidence examined, and held to negative -the claim that a certain deed, absolute in form, was intended as a mortgage.</p>

<p>1. Judgment: Collateral Attack. A decree in a foreclosure proceeding entered after the death of the plaintiff, occurring subsequently to the time that the jurisdiction of the court had attached, is an irregularity not open to collateral attack.</p> <p>2.-: -. The failure of the defendant in such proceeding to procure the decree to be vacated within three years after notice of the decree renders the decree unassailable.</p> <p>3. Mortgages: Foreclosure: Action to Redeem. AVhere the assignee of record of a decree of - foreclosure procures the mortgaged property to be sold on the decree after the death of the plaintiff, and without revivor, the confirmation of the sale cures any irregularity in that respect as against an action to redeem.</p>

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

<p>Judicial Sales: Appraisal: Estoppel. Where in a judicial sale the appraisement returned hy the sheriff shows a lien apparently prior to the lien under which the premises are to be sold, and that such lien was treated as prior and valid hy the appraisers in determining the interest of the defendant, and where the status of such apparent lien has not been judicially determined, one who purchases at the sale without questioning the validity or priority of such apparent lien is thereafter estopped from so doing. State v. Several Parcels of Land, 75 Neb. 497, followed.</p>

<p>1. Carriers: Special Permit. A railroad company may make suitable and reasonable conditions and regulations for carrying passengers on its freight trains from which they are excluded except by special permission; and an agreement on the part of one holding a special permit, by which he assumes the risks incident to hoarding the caboose of such trains at any place where it may be stopped for the purpose of conducting the freight business of the company, does not amount to a limitation of the carrier’s liability for its own negligence.</p> <p>2. -: Passenger. One holding such a permit, while on his way-through the station grounds and yards of the company to hoard the caboose of a freight train which does not carry passengers except by special permission, is not a passenger being transported over the company’s road, within the meaning of section 10,039, Ann. St., and the duty which the company owes to him is only that of ordinary care.</p> <p>3. -: Injury to Passenger: Evidence. Such a passenger cannot recover for injuries sustained by him while on his way to hoard the caboose of a freight' train without proof of negligence on the part of the company in the construction or maintenance of its station, station grounds or yards, which is the proximate cause of such injuries.</p>

<p>1. Contempt: Information: Verification. Where the charge of contempt of court is set forth in an information in positive and direct terms, the statement by the public prosecutor in his verification thereto “that the allegations and charges in the within information are true, as he verily believes,” does not render such information void.</p> <p>2. —1-: -: Objection to Verification. One cannot object to a verification of a complaint or information after he has been arraigned and pleaded not guilty, unless such plea has been withdrawn, and an objection of that kind nr "e for the first time in a motion for a new trial comes too late.</p> <p>3. -: Corrupting Jurors. All wilful attempts of whatever nature, seeking to improperly influence jurors in the impartial discharge of their duties, whether it he by conversations or discussions, or attempts to bribe, constitute contempts.</p> <p>4. -: Plea. In a prosecution for contempt where the act complained ' of is in itself a contempt of court, a denial on oath of its commission raises an issue of fact for trial, and does not entitle the accused to an acquittance.</p>

Original action to determine the right of defendant, as governor, to use the executive mansion without payment of rent. Defendant demurred to the petition.

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

<p>1. Coroners: Inquests: Jurisdiction. Jurisdiction to hold an inquest is conferred upon a coroner by bis finding and custody in his county of the body of a person who has apparently come to his death by violent, mysterious or unknown means, and such jurisdiction is not defeated by the mere fact that the violence was inflicted or the death occurred in another county.</p> <p>2. -: -: Fees. Whether, in any case, the circumstances are such as to require an inquest into the cause of the death of a person whose body is found within the county is a matter left very largely to the discretion of the coroner, and he will not be denied compensation for his services in holding such an inquest in the absence of a showing that he has acted in bad faith.</p> <p>3. -: -: Jury and Witness Fees. Jurors and witnesses have no discretion justifying their disobedience to a summons by a coroner to attend upon an inquest held by him, and cannot be denied their fees, solely because it may afterwards appear to have been unnecessary.</p>

<p>Counties: Funeral Expenses: Liability. An undertaker who, acting in good faith, pursuant to a direction by a coroner, causes ffie decent burial of a dead body found and being in tbe county, upon which tbe latter bad held an inquest, will not be denied reasonable compensation for bis services and expenses for the sole reason that it may afterwards be shown that tbe inquest was unnecessary.</p>

<p>1. Railroads: Injury to Cattle: Negligence. It is tbe duty of an engineer in charge of a train to exercise such a lookout as is consistent with his other duties to ascertain the presence of obstructions on the track, and, if such a precaution would have revealed the presence of stock in time to have avoided their injury by the use of ordinary care, the railroad company is liable for injuries inflicted upon them, although they were not actually seen until too late to avoid striking them, and although they were not within the protection of the statute requiring tracks to be fenced. Omaha £ R. V. R. Oo. v. Wright, 47 Neb. 886, followed and approved.</p> <p>2. Evidence examined, and held sufficient to sustain the judgment of the trial court.</p> <p>3. Instructions examined, and held not prejudicial.</p>

<p>Ejectment: Title: Evidence. In an action of ejectment, when the plaintiff’s testimony shows defendant in possession of the disputed lands under a claim of ownership, plaintiff must then recover on the superiority of his title, and, if he relies on a record or paper title, he must show a regular chain of title from the government, or from some grantor in possession, or from a common source from which each of the litigants claims.</p> <p>Ejectment: Evidence. Where, in an action in ejectment, the plaintiff’s chain of paper title does not reach back to the sovereign, or to 'a common source from which both parties claim, he must prove that he, or at least one of the grantors in his chain of title, had at some time been in possession of the premises before he can recover.</p>

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

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

<p>1. Cases Followed. Hanson v. Hanson, 64 Neb. 506, and Hanson v. Hanson, 4 Neb. (Unof.) 880, examined, approved and followed.</p> <p>2. Quieting Title: Dismissal Without Prejudice. Action of the trial court in permitting plaintiff to dismiss his petition to quiet title without prejudice to the right of the defendant to file a supplemental answer and cross-petition examined, and held not prejudicial.</p> <p>3. -: Reference. When, in an action to quiet title to partnership lands, it appears that no final accounting has ever been had of the effects of the partnership, the district court may, with propriety, appoint a referee to state the account of the partnership as a preliminary step in determining the interests of the partners in the lands in dispute.</p> <p>4. Statute of Limitations: Trusts. The statute of limitations begins to run in favor of a trustee ex maleficio of a constructive trust from the time of the discovery of the wrong or fraud, for the prevention of which the trust is imposed; but the statute does not begin to run in favor of the trustee of a resulting trust until such trustee, by some act or declaration, clearly repudiates his trust.</p>

<p>1. Creditor’s Suit: Burden of Proof. In a creditor’s suit to set aside a conveyance by a debtor to a near relative, alleged to have been made in consideration of a past due indebtedness, the burden is upon the grantee to show that the debt is genuine, that his purpose was honest, and that he acted in good faith in obtaining the title.</p> <p>2.-: Abatement. A creditor’s suit is an action in rem and not against the debtor personally, and a discharge by a court of bankruptcy is no bar thereto.</p> <p>3. -: Defenses. A fraudulent grantee cannot plead the subsequent discharge in bankruptcy of his grantor as a defense in a creditor’s suit brought more than four months prior to the' institution of the bankruptcy proceeding, where the land involved was never brought within the jurisdiction of the bankruptcy court.</p>

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

<p>Appeal from the district court for Cuming county: Cut T. Craves, Judge.</p>

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

<p>1. Directing Verdict. A verdict should not be directed for one party when the competent evidence adduced is sufficient to support a verdict for the adverse party.</p> <p>2. Petition examined, and held sufficient to state a cause of action.</p>

<p>Paupers: Counties: Liability. Sections 9360-9362, Ann. St., providing for the care of nonresident paupers by the county wherein they are found, and reimbursement therefor by the county of such pauper’s residence, apply to all counties in the state, including counties under township organization which have not established a poorhouse.</p>

<p>Husband and Wife: Desertion. In order to warrant a conviction under section 212a of our criminal code, both the “abandonment” and “failure to support” must occur since the taking effect of the statute.</p>

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

<p>1. Notes: Possession: Presumption. The original payee of a negotiable note' in possession thereof is presumed to he the owner, and has ostensible authority to accept money or property in discharge thereof, although the note hears the blank- indorsement of such-payee.</p> <p>2. -: Estoppel. Where the owner of a note clothes another with the indicia of ownership and ostensible authority to contract with the maker of the note for the discharge thereof, and the maker, relying upon such ostensible ownership and authority, delivers to such person certain property, which the latter accepts in payment and discharge of the note, the owner is estopped to deny the áuthority of such person to act in the premises.</p> <p>3. Trial: Instructions. The' practice of setting out the pleadings at length in the charge to the jury, instead of a concise statement of the issues tried, disapproved.</p> <p>i. Appeal: Instructions: Harmless Error. A complaint that the instructions covering a particular theory of one of the defendants are erroneous will not he considered where the record shows that the result of the trial would have been the same whatever the finding as to that particular theory.</p> <p>5. Appeal: Review. A'n objection at the close of an argument, “to the manner and style” of the argument, without a ruling of the court thereon, presents nothing for review in this court.</p> <p>6. Evidence examined, and held sufficient to sustain the verdict.</p>

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

<p>Highways: Unlawful Fencing: Information. An information, based on section 108, ch. 78, Comp. St. 1905, making it unlawful to “build a barbed wire fence across or in any plain traveled road or track in common use,” which omits to charge that the road or track was in “common use,” will not support a conviction.</p>

<p>1. Judgments, Vacating: Jurisdiction. The power of the district court to vacate or modify its own judgment or order after the term at which such judgment or order was entered should be exercised in the court where the judgment or order was entered, regardless of the residence of the parties.</p> <p>2. -: Pleading: Evidence. Where the allegations of a petition for a new trial under the provisions of sections 602, 603 of the code are traversed by general denial, it is error to vacate the judgment assailed by the petition without evidence to sustain the allegations of the pel 'ion.</p>

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

<p>1. Indictment: Joinder op Counts: Election. It is permissible to allow several high, grade offenses to he joined in an indictment or information, but in such eases only a single issue will be permitted to go to the jury; and, where such offenses are distinct and separate, the court should require the prosecutor to elect . upon which of the different counts he will rely for a conviction.</p> <p>2. -: -: -. This rule, however, does not apply to misdemeanors and felony cases where, by a single act, the accused may be guilty of two criminal offenses, or where the same transaction amounts to several offenses of the same grade and class and subject to the same punishment. Pointer v. United States, 151 U. S. 396.</p> <p>3. Witnesses: Husband and Wipe. A wife may testify as to a crime committed against her by her husband, and it is proper for her to state all of the facts relating to the commission of such crime, notwithstanding her evidence may tend to convict him of another and different offense committed at the same time and in the same transaction.</p>

<p>Courts: Jurisdiction. The supreme court will not entertain original jurisdiction in an action to compel a former '•manager of a private charitable corporation to account.</p>

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

<p>Appeal from tlrn district -court for Cuming county: Guy T. Graves, Judge.</p>

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

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

<p>Evidence. In an action of forcible entry and detention, a question asked of a witness as to who was in possession of the property was not objectionable as calling for the conclusion of the witness on legal possession, in the absence of anything in the form of the question or previous questions put to witnesses indicating that the word was used in its technical sense as synonymous with seizin.</p>

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

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

<p>1. Trial: Directing Verdict. A motion to direct a verdict is in effect a demurrer to the evidence of the opposing party, and in passing on the same the court should consider as established all the facts proved and all inferences which can be logically and reasonably drawn from the evidence,.</p> <p>2. Street Railways: Injuries: Negligence. One who negligently attempts to cross a street railway track in front of an approaching car cannot recover for injuries sustained by being thrown from his wagon by impact with the car, unless those in charge thereof wilfully or wantonly produce the collision.</p> <p>3. -: -: Ordinances. The mere fact that the car was running at a rate of speed prohibited by an ordinance of the city does not of itself entitle the plaintiff to recover.</p> <p>4. Evidence examined, and held insufficient to require its submission to the jury.</p>

<p>1. Contracts: Validity. To avoid a contract on the ground of drunkenness, it is not sufficient that the party was under undue excitement from liquor. It must arise to that degree which may be called excessive drunkenness, where a party is so far deprived of his reason and understanding as to render him incapable of understanding the character and consequence of his act. Johnson v. Phifer, 6 Neb. 401, modified.</p> <p>A ———: Rescission. To avoid a contract on the ground of excessive intoxication, one must rescind the contract within a reasonable time after recovering his senses, or, if he has received no money or property as a consideration therefor, he must, within a reasonable time, disclaim liability thereon.</p> <p>3. Appeal: Judicial Notice: Recokd. Rules of the district court cannot be judicially noticed by this court, and, where any right is claimed under such rules, they must be called to our attention by being embodied in the bill of exceptions.</p>

<p>1. Exemptions, Evasion of. The institution of a suit in another state against the employee of a railroad company is only prima facie evidence of evasion of the exemption laws of this state.</p> <p>2. Agents, Unauthorized Acts of. The owner of a note already in judgment, who places it in the hands of a collection agency with a distinct agreement that no suit is to be brought thereon, is not bound by the unauthorized action of the agent in bringing suit.</p>

<p>Eelease: Joint Debtors: Pleading. The voluntary release of one of two joint makers of a promissory note will release the other. But when an action has been brought against both jointly, and a successful defense has been made by one defendant supported by the evidence of both, and judgment has been entered against the other defendant, upon appeal by such defendant to the district court the action may proceed against him alone, and the petition which alleges all the facts above stated is not subject to demurrer for nonjoinder of defendants.</p>

<p>1. Railroads: Liability for Injuries. Ordinarily a railroad company is not liable for injuries caused by a team taking fright at the noises incident to the ordinary operation of a train on its road.</p> <p>2. -:--. But, where the conditions are such that noises thus made would endanger a person at a public crossing, which result could be avoided by temporarily staying or suspending the noise without materially interfering with the due operation of the train, ordinary care and prudence require that it be thus stayed or suspended until the danger is past.</p> <p>3.--: -. To turn on the steam of a locomotive standing at a public street crossing, without warning and without taking due precautions to discover whether there is any person on or near the crossing liable to be injured in consequence of such act, constitutes actionable negligence, in the absence of special circumstances justifying the act.</p> <p>4. -: -. A train standing at a public crossing has no precedence over an ordinary traveler, their rights being equal. Each is bound to act with due regard to the other, and has a right to assume that the other will be controlled by such considerations as would influence the conduct of a man of ordinary care and prudence.</p> <p>Railroads: Negligence: Question eor Jury. When an engine is standing at a street crossing in a city, and teams are continually passing and repassing near thereto, and the engine is suddenly started without warning when .a team is crossing on the public highway and is in close proximity to the engine, it is a question of fact for the determination of the jury whether the engineer is guilty of negligence in failing to ring the bell or give other warning of the starting of the engine.</p>

<p>Appeal from tlie district court for Oass county: Paul J essen, Judge.</p>

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

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

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

<p>1. Judgment: Revivor: Parties. A proceeding to revive a dormant judgment is a continuation of an action previously commenced, and in case, of an assignment of the judgment such proceeding may he had in the name of the judgment creditor, if living, or in the name of the assignee as the real party in interest.</p> <p>2. Limitation of Actions. The general law as to the statute of limitations does not apply to the proceeding to revive a dormant judgment.</p>

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

<p>1. Brokers: Sale op Realty: Commissions. -To entitle a recovery-on a contract of brokerage for the purchase of real estate, it is essential that the broker establish that he procured a valid conveyance of the real estate, or an enforceable contract of sale of the same, before he is entitled to the commission stipulated in his contract with the purchaser.</p> <p>2. Evidence examined, and held insufficient to show a right of recovery in the plaintiff.</p>

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

<p>1. Fraudulent Conveyances: Evidence. The court will carefully scrutinize a transfer of property between near relatives, which has the ultimate effect of hindering and delaying the creditors of the grantor; but, if, on an examination of the evidence concerning the transfer, it appears that the grantee purchased the property and paid full value therefor in good faith, and without any intent to aid the grantor in cheating and defrauding his creditors, it will be upheld.</p> <p>2. --. Mere suspicions of fraud will not prevail against positive and unimpcached testimony showing the good faith of the transfer.</p>

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

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

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

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

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

<p>Insurance: Assessments: Payment. When it is the custom of a collecting agent or officer of a fraternal beneficiary association to receive by mail remittances from its members at a certain post office, and the official stationery of such agent designated that post office as his address, a remittance of an assessment, addressed to such agent, reaching the designated post office on the day it became due, is a payment of the assessment, where there is no provision in the contract of insurance to the contrary, although the money was not delivered until later to the agent, who, unknown to the insured or his beneficiary, had changed his place of receiving mail from the designated post office to a rural delivery route.</p>

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

<p>1. Street Railways: Use oe Streets. The right to use the streets of a city by the driver, of a horse and the manager of a street car are equal, and each must use it with reasonable regard for the safety and convenience of the other.</p> <p>2. -: Injury. Where the motorman in charge of a car sees, or by the use of reasonable care may see, that a horse is unduly frightened by his car, he must do what he reasonably can to prevent danger and damage; but, if the horse shows no signs of fright which are observable to him until too late to stop, he is not negligent in running into a horse which rears and alights immediately in front of’ the car.</p> <p>3. Evidence examined, and held insufficient to submit to the jury.</p>

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

<p>Principal and Agent: Contract: Construction. Where one party requests another to perform valuable services in effecting the sale ■of an article, agreeing “to protect” him if such sale is made, and the influence and solicitations of the party so engaged are the efficient cause in effecting the sale, such contract should be construed in the light of the surrounding circumstances.</p>

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

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

<p>1. Evidence: Damages. The amount of damages awarded by a jury must be sustained by ascertained and established facts, or it will be set aside.</p> <p>2. Factors: Sales. A factor is not required to depart from his usual and established custom in the sale of goods consigned to him, and especially is this so when he has made large advances on the goods and a different course might subject him to loss.</p>

<p>1. Appeal: Presumptions. Where a cause is tried to the court without a jury, it will he presumed that the court considered only competent evidence.</p> <p>2> -: Harmless Error, In such case, where there is sufficient competent evidence to sustain the finding, the fact that incompetent evidence was received will not constitute reversible error.</p> <p>3. Evidence: Sufficiency. In this case, the competent evidence adduced is held amply sufficient to sustain the finding of the trial court.</p>

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

<p>1. Corporations: Transfer of Assets: Liability.. Where an insolvent corporation, in fraud of its creditors, transfers its assets to a new corporation, not the successor of the old, without consideration other than the issuance of stock to the stockholders of the old corporation, the corporation receiving such assets is liable to the creditors of the old corporation only to the extent of the value of the property received.</p> <p>2. ——: -: Action. In such case, an action at law will not lie against the receiving corporation.</p>

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

<p>1.- Insurance: Rights of Beneficiaries. Where the members of a fraternal beneficiary association have the right to designate and change the beneficiary, the beneficiary is not a party to the contract and acquires no vested right therein during the life of the assured.</p> <p>2. Evidence: Declarations Against Interest. In an action against such association for the amount of a beneficiary certificate, where the issue is as to the good standing of the assured at the time of his death, the statements of the deceased tending to show his understanding of his standing in the order are admissible in evidence in favor of the association.</p> <p>1. Trial: Question for Jury. Where the facts are disputed, it is solely the province of the jury to determine the same; and, whether the facts be disputed or undisputed, if different minds might honestly draw different conclusions from them, the case is properly left to the jury.</p> <p>2. Evidence: Statements: Relevancy. A statement made by a party or his privy, suggesting any inference as to any fact in issue, or relevant fact unfavorable to the conclusion contended for by such party, is relevant, and should be permitted to go to the jury. '3. -: Cumulative Evidence. Testimony tending to establish a relevant fact may not be excluded as cumulative because similar, but independent, facts are already in evidence.</p>

<p>Appeal from the district court for Hall county:, James R. Hanna and James N. Paul, Judges.</p>

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

<p>1. Larceny: Indictment. Where one person has the general ownership of property and another person a special ownership in the same thing, the property may he alleged to he in either, in an indictment for larceny. Sharp v. State, 61 Neh. 187.</p> <p>2. Evidence examined, and held to support a verdict finding the defendant Martin guilty of larceny.</p>

<p>1. Intoxicating Liquors: Local Option. One of the main objects i'n the passage of chapter 50, Comp. St. 1881, known as the “Slocumb law,” was to establish the principle of local option and to permit the people of each municipality in this state to determine for themselves whether or not the liquor traffic should be licensed therein.</p> <p>2. Statutes: Construction. Where the provisions of a general law and a later act applying only to a certain special class are not repugnant, they will be construed together, and if the legislature has indicated its general policy in relation to the subject matter they will be construed, if possible, so as to carry out that policy.</p> <p>3. Intoxicating Liquors: Municipal Year. By the term “municipal year,” as used in the Slocumb law, is ordinarily meant the political year, as by so construing the term the principle of local option is conserved and applied.</p> <p>4. -: Local Option. By the amendment made to the Lincoln charter in 1905, by which biennial elections instead of annual elections were provided for, the legislature did not intend to abandon the policy of local option.</p> <p>5. -: License: Municipal Year. The word “year” in section 5 of the Slocumb law and “municipal year” in section 25 of the same act should be construed together. County boards may not grant a license for a term exceeding a calendar year, but municipal authorities may grant a license for a municipal year, which may be either longer or shorter than a calendar year.</p>

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

<p>1. Insurance: Pbincipal and Agent. When an agent in the possession of goods has contracted to become absolutely and unconditionally liable to his principal, to the extent of this value, for their loss or damage by fire, and procures insurance upon them in his own name, such insurance is for his own exclusive benefit and advantage, and does not affect or add to his obligation to his principal upon his contract.</p> <p>2.-: -. In a case like the foregoing, money due from an insurance company on account of a loss under its policy is not a trust fund for the benefit of the principal, but is an indebtedness to the agent, and is subject to his disposition and liable for his debts like other money and property belonging to his estate.</p>

<p>1. Appeal: Vebdict: Evidence. A verdict upon conflicting evidence will not be disturbed unless the evidence is clearly insufficient to sustain it.</p> <p>2. Malicious Prosecution: Probable Cause. A criminal prosecution from malicious motives is not a cause of action for damages, if there was a probable cause.</p> <p>3. Instructions. Error cannot be assigned for the refusal of an instruction, the substance of which is contained in instructions given by the court of his own motion.</p>