Volume 79 — Nebraska Reports

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

<p>1. Cities: Personal Injuries: Evidence. In an action for personal injuries as a result of negligence, the fact that the jury has, at the request of one of the parties, inspected the scene of the 'injury-does not necessarily preclude such party from complaining that the verdict is not supported by the evidence, but in this case the evidence does afford such support.</p> <p>2. Abatement: Injury to Wife. A cause of action by a husband for a loss of services and expenditures for medical attendance, etc., occasioned by a negligent and wrongful injury to his wife, is one which survives and is assignable.</p> <p>3. Cities: Notice. A statutory notice is sufficient if it contains that which the statute prescribes.</p>

<p>Appeal from the district court for Keya Paha county: William IT. Westover, Judge.</p>

<p>1. Dismissal. Under section 430 of the code, it is within the sound discretion of the district court to dismiss a petition without prejudice for disobedience by the plaintiff of a reasonable order concerning the proceedings in the action.</p> <p>2. Corporations: Insolvency: Stockholders: Jurisdiction. A court having jurisdiction of an insolvent corporation for the purpose of winding up its affairs has no authority to render a personal judgment against o'ne of its stockholders who is not a party to the action by service of process or voluntary appearance. Neither has the court in such case authority to adjudicate the fact of membership in the corporation. Commonwealth Mutual Fire Ins. Co. v. Hayden Bros., 61 Neb. 454, followed and approved.</p>

<p>1. Insurance: Change of Occupation. A condition in the constitution of an accident insurance company provided for a limitation of liability, “if any member of the association shall, after becoming such, change his occupation to one classed by the executive board as more hazardous than that stated in his original application.” The insured, who was a traveling salesman, lost his position, and for a term of nearly two years lived upon his father’s ranch while trying to obtain another position, but was paid no salary or other compensation. At the time of his death he was endeavoring to obtain another situation as a commercial traveler. Held, That he did not change his occupation to that of “stock farmer, owner or superintendent, supervising only,” which was the occupation classed by the executive board as more hazardous than that of commercial traveler.</p> <p>2. -: Proofs of Death: Forfeiture. A condition in an accident insurance policy providing for a forfeiture of the benefits unless proofs of the death of the assured are furnished within 30 days will be upheld; hut, where the testimony shows notice of the death given within the required time, and due diligence, prompt action and good faith on the part of the beneficiary in making formal proof of death as soon as the requirements are made known to him, a forfeiture for the failure of a literal and technical compliance with the condition should not be declared.</p> <p>3. Evidence. Action of the trial court in the admission of evidence examined, and held not prejudicial.</p> <p>4. Evidence examined, and held sufficient to sustain the judgment of the trial court.</p>

<p>Newspapers: Notice or Tax Sales. AAThere a board of county commissioners enters into a contract with a newspaper of general circulation for the publication of legal advertisements for a year, and for succeeding years recognizes and deals with it as the official paper of the county, such paper is, for the purpose of publication of notices of tax sales, a paper “designated by the board of county commissioners,” as required by section 109, art. I, ch. 77, Comp. St. 1897.</p>

<p>Replevin: Petition. Petition in replevin examined, and held insufficient to state a cause of action under the rule announced in Case Threshing Machine Go. v. Rosso, 78 Neb. 184.</p> <p>1. Replevin: Affidavit. It is not essential to the maintenance of an action of replevin instituted in the district court that any affidavit of replevin as contemplated by section 182 of the code should be filed, nor that the facts required to be set forth in the affidavit under the fourth subdivision of section 182 should be embodied in the petition. It is necessary to set forth the facts required by the fourth subdivision of the code in an affidavit or in the petition only when an order of delivery is desired by the .plaintiff.</p> <p>2. Contract examined, and held to be one of conditional sale.</p> <p>3. Sale: Mortgagee op Vendee. The mortgagee of a conditional vendee of personal property is not a purchaser within the meaning of section 26, ch. 32, Comp. St. 1907, and cannot by his mortgage acquire any rights superior to the conditional vendor, even if the contract of conditional sale is not filed as required by said section.</p>

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

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

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

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

<p>1. Tax Certificate: Foreclosure. Where a petition in foreclosure describes the property by lot number (the same as contained in the tax certificate foreclosed), and further by a particular description in metes and bounds, and the answer denies the particular description and alleges a different boundary, the court has jurisdiction to ascertain what is in fact the true boundary and enter a decree accordingly.</p> <p>2. Case Affirmed. Medland v. Van Etten, 75 Neb. 794, reaffirmed.</p>

<p>1. Mortgages: Conveyances: Consideration. Whether a conveyance absolute in form is intended as an unconditional conveyance or as a security must be determined by a consideration of the peculiar circumstances of .each case. Where the parties sustain the relation of debtor and creditor, and the grantee surrenders to the grantor the evidence of indebtedness held against him to the full amount of the consideration for such conveyance, and such indebtedness is understood by the parties to be fully paid and satisfied thereby, the transaction will in the absence of fraud be regarded as an unconditional conveyance.</p> <p>2.-: -: Estoppel. Evidence examined, and held not sufficient to estop the defendant from asserting his absolute title to the property in controversy.</p>

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

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

<p>Criminal Law: Trial. In a prosecution for unlawfully keeping intoxicating liquor for sale without a license, it is not error for the jury to taste of the liquors seized and produced in evidence at the trial, for the purpose of aiding in the determination of the question whether or not the liquor is intoxicating.</p>

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

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

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

<p>1. Mandamus: Counties: Bridge Repairs: Evidence: Presumptions. Where a mandamus is sought to compel the commissioners of a county to repair a bridge, and it becomes necessary for the court to ascertain the amount in the treasury and available for such purpose, and it appears that the county has, without advertising for bids and letting contracts to the lowest bidder, incurred liabilities amounting to $4,000 for sundry repairs, the items of which are not disclosed by the evidence, the court will not assume, in the absence of evidence to that effect, that any one contract was for more than $100 and therefore in violation of section 83, ch. 78, Comp. St. 1903.</p> <p>2. -: Bridge Repairs: Discretion of County Commissioners. In determining the character of repairs to be made to bridges, and what bridges shall be repaired, when there are not sufficient funds for all, the court will not control the discretion of county commissioners, unless there is a clear abuse of such discretion.</p>

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

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

Original application for a writ of mandamus to compel respondents, as school district officers, to apply certain moneys in payment of school warrants.

Original application for a writ of mandamus to compel respondent to issue a warrant in payment of a claim payable out of tbe temporary university fund.

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

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

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

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

<p>1. Criminal Law: Jurisdiction. The judgment of a court having no jurisdiction of the subject matter does not constitute a bar to a second prosecution based upon the same charge as that upon which the first judgment was pronounced.</p> <p>2. Interstate Commerce: Railroads: Speed Ordinance. An ordinance limiting the speed of trains on an interstate railway which carries United States mail to ten miles an hour within the corporate limits of the municipality, which is passed for the safety of the public and the protection of life and property, is not void as imposing an unreasonable restriction upon interstate commerce and the speedy transportation of the mail.</p> <p>3. Cities: Ordinances: Presumption. The determination of the question whether an ordinance is reasonably necessary for the protection of life and property within the city is committed in the first instance to the municipal authorities, and, when they have acted and passed an ordinance, it is presumptively valid, and the courts will not interfere with its enforcement until the unreasonableness or want of necessity of such measure is made to appear by satisfactory evidence.</p> <p>4.-: -: Violation: Evidence. A prosecution for the violation of a city ordinance, which does not embrace any offense made criminal by the laws of the state, while in form a criminal prosecution, is, in fact, a civil proceeding to recover a penalty, and clear an<J satisfactory proof that the offense has been conimitted is sufficient to sustain a conviction. Proof beyond a reasonable doubt is not required.</p> <p>5. Pines: Impbisonment fob Debt. Pines or penalties arising from a violation of the penal laws of the state, or city or village ordinances, are not debts within the meaning of our constitutional provision prohibiting imprisonment for debt. Kennedy v. People, 122 111. 649.</p>

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

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

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

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

<p>1. County officers have by implication such powers as are necessary to enable them to perform the duties expressly enjoined upon them.</p> <p>2. County Attorneys: Powers: Expenses. A county attorney, who is required by law and by tbe order of tbe county board to institute actions for tbe benefit of tbe county, may bind tbe county to pay tbe reasonable and necessary expense incident thereto.</p>

<p>1. Vendor and Purchaser: Contract: Forfeiture. Where a contract for the sale of real estate provides that time and punctuality are material and essential ingredients in the contract, and that nonpayment of an instalment of the purchase price shall forfeit the purchaser’s rights therein, and that the vendor shall thereupon have the right to take possession of the property, such default of itself operates as a forfeiture, and the vendor is not required to give notice to the purchaser.</p> <p>2. -: -: -: Damages. Damages cannot he recovered for the cancelation of a contract for the sale of real estate, and a resale of the property, against the vendor hy a purchaser who could not have maintained an action for the specific performance of his contract had the resale not have been made.</p>

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

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

<p>Carriers: Liability. When facts are disclosed from which it appears that an animal has not suffered through the neglect of a carrier intrusted with its transportation, the rule that proof of the receipt of animals by a carrier in good order and delivery at destination in bad order makes a prima facie case of liability against the carrier has no weight as against such facts.</p> <p>1. Carriers: Rights of Consignor. The consignor of a horse shipped from one point to another, which will necessitate shipment over two connecting lines of railroad, on the arrival of the horse at the connecting point of said roads, may, if he so desires, decline to ship farther, and upon payment of the charges of the first carrier demand a redelivery of such horse.</p> <p>2. -: Duties. In such case it is the duty of the carrier to redeliver said horse without unreasonable delay.</p> <p>3. -: Negugence. Where, in the month of December, a railroad company agrees with an intending shipper of a horse to ship such horse oh a particular fast freight train, and the horse is delivered to sáid company within the time prior to the time of departure of such train designated by the agent of said company, and said company fails to ship such horse on said fast train, but ships it on another and slower train, which does not reach the connecting point of such shipment until about 24 hours later than said horse would have reached such point if shipped on said fast train, and during said last named 24 hours the weather changes and becomes cold and stormy, by reason of which said horse contracts a cold, and after the arrival of such horse at said connecting point the consignor notifies the agent of the carrier at said connecting point that such horse is a valuable horse, that it is sick and in need of immediate medical attention, that he does not intend to ship the horse farther, hut wants the car containing the horse switched to some chute or platform so that it can be unloaded for treatment, and pays the carrier’s charges for shipment to such point, and the agent of the carrier fails and neglects, for the space of five or six hours thereafter, to place said car in a position where said horse can be unloaded, and about three hours after the payment of the charges and demand for the unloading of the horse a storm of snow and sleet sets in which continues down to and after the time such horse is finally unloaded, which necessitates the unloading of the horse in said storm, and after being unloaded the horse is led through said storm to a veterinary hospital, and as a result of such delay and exposure the illness of the horse is increased to pneumonia, of which it dies; held, sufficient to sustain a finding that such delay on the part of the carrier was negligence which was the proximate cause of the death of said horse.</p> <p>4. -: -: Question fob Juby. Where the owner of such horse, after it is unloaded, acting under the supervision of a competent veterinary surgeon whom he has employed, leads said . horse, in the storm which has arisen, through the streets of the city for a distance of two miles to the veterinary hospital; held, a question of fact for the jury whether a reasonably prudent man .under like circumstances would have so done.</p> <p>5. -Instructions examined, and held to have properly submitted the auestions at issue to the jury.</p> <p>6. Evidence examined, and held sufficient to sustain the findings of the jury.</p>

<p>1. Vendor and Purchaser: Priorities, A tona fide purchaser of real estate who takes title by quitclaim should be protected as against the holder of an unrecorded deed, of which the purchaser had no notice.</p> <p>2. Deed: Interest Conveyed. The word “quitclaim” in what purports to be a deed of conveyance to real estate is sufficient to convey the interest of the grantor therein.</p> <p>3. Evidence: Foreign Statutes: Presumptions. In the absence of evidence to the contrary, the laws of a sister state with reference to tiie creation of a corporation will be presumed to be tbe same as those of this state.</p> <p>4. Lis Pendens: Judicial Sale: Purchaser Pendente Lite. A took a real estate mortgage from B, and pending an action to foreclose the same C commenced an action in ejectment against B, and had judgment for possession of the land. Held, That the purchaser at the foreclosure sale was not bound or affected by the judgment entered in the action between B and 0.</p>

<p>Homestead: Conveyance. Where a homestead has been selected by husband and wife from the separate property of the wife, the wife cannot by a conveyance of the property deprive the husband of his homestead right therein while the marriage relation exists.</p>

<p>1. New Trial. A new trial will not be granted upon tbe ground of newly discovered evidence, unless it is made to appear that such evidence, if it had been offered and admitted on the trial, would probably have produced a different result.</p> <p>2. Appeal: New Trial: Record. A decision of a district court granting an application for a new trial on the ground of 'newly discovered evidence will not be reviewed by this court in the absence of a bill of exceptions containing both the evidence- used on the trial and that alleged to have been newly discovered.</p> <p>3. New Trial: Transcript: Waiver. Inability of a party, without his fault or negligence, to procure a transcript of oral testimony taken on a trial in time to prepare and settle a hill of exceptions within the period limited by statute is not a ground for a new trial when the adverse party offers to waive his advantage and permit the hill to he subsequently prepared and settled.</p> <p>4. Wills: Probate: Trial. It is error for a court to submit questions of law to a jury, as for instance, whether the facts and circumstances given in evidence upon the trial of a contestant of the probate of a will are sufficient to operate as a revocation of the instrument by implication of law.</p>

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

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

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

<p>Acknowledgment: Certificate. A certificate of a notary public not authenticated by a statement either engraved upon his seal or written under his official signature of the date of the expiration of his commission or term of office is void.</p> <p>1. Notaries: Certificate: Seal. The seal of a notary which contains the words “Notarial Seal,” the name of the county for which the notary was appointed, and the word “Nebraska,” is sufficient for the authentication of his official acts; and his failure to write under his official signature the date when his commission will expire does not render his certificate void.</p> <p>2. Acknowledgment: Impeachment. A certificate of acknowledgment of a deed or mortgage, in proper form, can be impeached only by clear, convincing, and satisfactory proof that the certificate is false and fraudulent; and whilst the making of a false certificate is a fraud upon the party against whom it is perpetrated, yet the mere evidence of a party purporting to have made the acknowl-</p> <p>edgment usually cannot overcome the officer’s certificate, nor will such evidence, slightly corroborated, overcome it.</p>

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

<p>1. Adverse Possession: Tacking. Privity must be shown between adverse claimants of real estate before the possession of one can be tacked to the possession of the other for the purpose of completing title by prescription.</p> <p>2. Death: Presumption. A presumption of death arises from the continued and unexplained absence of a person from his home or place of residence for seven years, where nothing has been heard from or concerning him during that time by those who, were he living, would naturally hear from him.</p>

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

<p>1. Abortion: Words Defined. Tbe words, “at any stage of utero-gestation” as used in section 6 of the criminal code, defined, and held to mean “at any stage of pregnancy.”</p> <p>2. -: Evidence: Dying Declarations. In a prosecution for homicide in procuring an abortion under section 6 of the criminal code, dying declarations of the deceased may be admitted in evidence, under the same conditions and limitations as in prosecutions for murder or manslaughter.</p>

<p>1. Criminal Law: Continuance. The defendant made a'n application for a continuance,’setting forth fully what he believed the absent witnesses would swear to if present. The state offered to admit that the witnesses, if present, would testify as stated in the affidavit. Held, Under the circumstances of the case, that there was no abuse of discretion on the part of the court in overruling the motion for continuance. Catron v. State, 52 Neb. 389.</p> <p>2. -; Venue. Evidence examined on the question of venue, and held to be sufficient to sustain the verdict of the jury that the crime was committed in Keya Paha county.</p>

<p>Appeal from the district court for Loup county: James B. Hanna, Judge.</p>

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

<p>1. County Treasurer: Accountino: Costs. While a county treasurer should be required to account for the full amount of interest due on taxes collected by him, the county commissioners should call to his attention his failure to do so if their refusal to settle with him is based on that ground, or pay the cost of legal proceedings brought to compel an approval'of his bond if such objection is not disclosed before action brought to require acceptance and approval of his official bond for a second term of the office to which he has been elected.</p> <p>2. -: Bond: Approval. The bond of a county treasurer who has been elected to serve a second term should be approved by the board of county commissioners when he has accounted, or stands ready to account, for all funds collected by him during his first term, and mere irregularities in disbursing the funds in his hands during his first term is not a valid objection to his proposed settlement or to the approval of his bond for a second term, where such irregularities occur on the advice of the county attorney and do not in fact cause any loss to the county, or to any one interested in the disbursement of the funds, and where the treasurer has acted in good faith in the discharge of the duties of his office; and especially is this true when it is apparent that the action of the board is based on the refusal of the treasurer to comply with an order of the board relating to the disposition of funds in his hands which contemplates an illegal disbursement thereof.</p>

<p>1. Villages: Sidewalks: Grading. Power given to villages by statute prior to the 1903 amendment to require the construction of sidewalks did not include the power to require the lot owner to reduce the sidewalk space to the established grade.</p> <p>2.-: -: -. Prior to 1903, before a village could, by notice, require a lot owner to construct a sidewalk to grade upon an improved street, it must perform its duty by reducing the sidewalk space to the established grade.</p>

<p>Appeal from tbe district court for Richardson county: John B. Raper, Judge.</p>

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

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

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

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

<p>1. Appeal: Evidence. Rulings of the trial court in excluding certain evidence offered examined, and held prejudicial error.</p> <p>2. -: Instructions. Instructions that withdraw from the consideration of the jury any material issue in the case, properly pleaded and supported by competent testimony, are erroneous. Instructions No. 6 and No. 8 examined, and held to withdraw a material issue from the consideration of the jury.</p> <p>3. Intoxicating’ Liquors: Damages: Evidence. Under the civil damages section of our liquor law (Ann. St., sec. 7165), under ordinary circumstances a saloon-keeper is not liable for damages resulting from the use of intoxicating liquors, where the liquors were sold by the saloon-keeper to a third person, who thereafter furnished the liquor to the person who became intoxicated and caused the injury complained of, if it appears that the saloon-keeper had no knowledge or reason to believe that the liquors sold to the third person were to be furnished to the person who became intoxicated.</p>

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

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

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

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

<p>1. Domicile: Presumptions. The domicile of the parents is presumably the residence of their minor children, but that presumption may be overcome by facts and circumstances showing a different condition.</p> <p>2. Guardians: Appointment: Collateral Attack. Where minor children over the age of 14 years apply for and, with the consent of their parents, procure the appointment of a guardian of their persons and property, the proceeding is not open to collateral attack on the ground that the parents are the natural guardians of their children.</p>

<p>Appeal: Teanscbipt. A transcript of the proceedings before a license board upon an application for a license for the sale of liquors, which does not contain a certified copy of the final order of such board, presents no question for review on appeal.</p>

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

<p>1. Evidence examined, and held to support finding of trial judge.</p> <p>2. Boundaries: Evidence. The fact that th.e Boundary lines of fields and highways, as established by the early settlers, are in harmony with disputed monuments is relevant as tending to show that such monuments are true corners.</p> <p>3. Ejectment: Essential Elements. The essential elements of the action of ejectment are legal estate, a right of possession in the plaintiff, and unlawful detention by defendant; and the plaintiff cannot recover where the latter element is lacking.</p>

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

<p>1. Life Tenant, Death of. The death of a life tenant terminates the right of possession of his lessee.</p> <p>2. -: Rights of Lessee. Where the lessee of a life tenant plants crops before the death of the life tenant and consequent termination of his lease, lie is entitled to reenter to cultivate, harvest and remove such crops; hut this right of entry is not inconsistent with the right of possession of the reversioner.</p>

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

<p>1. Appeal: Record: Motion to Strike. Where, upon the final hearing of a case, the trial judge makes an order permitting the defendant to offer the testimony taken at a former trial, and afterwards includes the evidence so taken in the bill of exceptions, the same will not be stricken from the record in this court.</p> <p>2. Marshalling Assets: Rights oe Mortgagees. The right of a junior mortgagee having security upon a single tract of land to require a senior mortgagee having security upon several tracts to take payment out of those to which he can resort exclusively, so that both may be paid, cannot be defeated by a secret oral agreement between the senior mortgagee and the debtor that the former shall first resort to the security upon which the junior mortgagee has a lien.</p>

<p>1. Criminal Law: Stay of Execution: Sanity of Convict. Upon the hearing of an application under section 551 of the criminal code, the judge may stay execution of sentence, when such stay is absolutely necessary in order that the investigation required by statute shall be had. The necessity for such stay is to be determined by the judge before whom the application is pending, in the exercise of a sound legal discretion.</p> <p>2. -: Sentence, Suspension oe. The sentence is not vacated by such stay. The execution thereof is suspended until the day named in the order of stay.</p>

<p>1. Pardon: Limitations on Power. The governor of the state has no authority to order a sheriff to release a prisoner committed to his custody by judgment of a court.</p> <p>2. -: -. The governor has no power to pardon a prisoner found guilty of bastardy and adjudged to be the reputed father of an illegitimate child.</p> <p>3. -: -. The word “offenses” as used in section 13, art. Y of the constitution, is equivalent to “crimes.” The governor cannot pardon an offense until after conviction by the judgment of a court.</p>

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

<p>1. Carriers: Injuey: Contributory Negligence. A party cannot be charged with contributory negligence on account of taking a place on a crowded street car designated by the conductor of the car.</p> <p>2. Instructions. An instruction not based upon the evidence, although correct as a legal proposition, is ground for the reversal of a judgment if it has a tendency to mislead the jury. Esterly Harvesting M. Co. v. Frolkey, 34 Neb. 110.</p>

<p>1. Officers: Action on Bond. Section 643 of the code, providing for actions upon official bonds by any person damaged through the misconduct of an officer, refers only to bonds given under statutory authority.</p> <p>2. Cities: Policemen: Action on Bond. A citizen could not, prior to 1905, maintain an action upon the bond of "a patrolman of the city of Omaha, there being no privity between the plaintiff and the surety, and neither the state laws nor the city ordinances giving him the right to recover.</p>

<p>1. Electricity: Negligence. An electric light company placed its wires through the branches of trees so that high potential wires charged with 2,300 volts of electricity were within 26 inches of low potential wires. It was undisputed that proper construction required such wires to be at least five feet apart, and, even when so placed, should not be permitted to pass through the branches of trees, thereby endangering contact. Held, That the company was guilty of negligence as a matter of law, and that errors in submitting the question to the jury were without prejudice.</p> <p>2. Master and Servant: Injury: Negligence. Held, That plaintiff’s intestate was killed while in the performance of duties within the scope of his employment.</p> <p>3. —--: Assumption oe Risk: Negligence oe Master. A servant by his contract assumes 'the ordinary risks and dangers incident thereto, but does not assume the risk of dangers due to his master’s negligence.</p> <p>4. -: -: Contributory Negligence: Question eor Jury. Plaintiff’s intestate, a lineman, was sent by his superior to ascertain and remove the cause of an electrical disturbance at the residence of one of the company’s patrons. It was undisputed that deceased knew that the patron’s son had received a shock from one of the electric lights in the dwelling, and that the wires in the yard were causing trees to which they were attached to smoke. Deceased assisted in removing the wires in the yard, and then went into the residence, and later asked to be shown the light from which the son had received the shock. Upon it being pointed out to him, he took hold of it with his hand, and was instantly killed. Held,- That whether deceased assumed the risk and was guilty of contributory negligence were properly left to the determination of the jury.</p> <p>1. Master and Servant: Injury: Presumptions. The instinct of self-preservation and the disposition of men to avoid personal harm may, in the absence of evidence, raise the presumption that a person killed or injured was in the exercise of ordinary care.</p> <p>2.-: Assumption oe Risk: Burden oe Prooe. In an action , against a master for negligence, the burden of establishing an assumption of risk is on the master.</p> <p>3.--: Neslisence: Questions eor Jury. In an action for the death of an employee, held that whether he was guilty of contributory negligence in taking hold of an incandescent lamp charged with a deadly current of electricity, or assumed the risk of injury, was for the jury.</p>

<p>1. Judgment: Joint Debtors. In this state a judgment is not considered an entirety unless the interests of the judgment debtors are inseparable.</p> <p>2. —-: Vacation. The vacation of a judgment against one judgment debtor whose interests are inseparable ipso facto vacates it as to other judgment debtors.</p> <p>3. -: -: Principal and Surety. A judgment rendered against one defendant as principal and others as sureties was set aside as to the principal on his motion. Held, That the interests of the judgment debtors were inseparable, and that the vacating of the judgment as to the principal vacated it ipso facto as to all parties.</p>

<p>Trover: Review. The rulings of the trial court upon instructions tendered and upon the admission and rejection of evidence examined, and held without error.</p>

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

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

<p>1. Evidence: Declarations Against Interest. The admissions and declarations of a party to an action against his own interest, upon a material matter, are admissible against him as original evidence, and, where he is examined as a witness in his own behalf, it is unnecessary to lay a foundation for the admission of such evidence by cross-examination. 2. Trial: Argument of Counsel. Unwarranted and unreasonable assault upon the character and integrity of witnesses by counsel in the argument of a case, which tends to inflame the minds of the jurors and prevent a calm and dispassionate consideration of the case, constitute:, prejudicial error.</p>

<p>County Treasurer: Deposit of Funds. In the absence of bad faith, a county treasurer is not liable for depositing county funds in a legal depository in excess of the depository bank’s pro rata share of such funds, as provided by section 18, ch. 18, art. Ill, Comp. St. 1905, unless the amount of such deposit exceeds the sum which might lawfully be deposited under the provisions of section 20 of the same chapter.</p>

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

<p>1. Pleading. The plaintiff cannot, by a motion to make specific, be required to disclose in his petition facts which are properly matters of defense.</p> <p>2. Negligence: Statutory Duty. The failure to perform a statutory duty imposed for the protection of the public is negligence; and. in the absence of contributory negligence, a recovery may be had for the injury thereby occasioned.</p> <p>3. Evidence examined, and found sufficient to support verdict.</p> <p>4. Instructions must be taken together and their true meaning determined by considering all that is stated on each particular bránch of the ease,</p> <p>5. Parent and Child: Injury: Loss oe Services: Evidence. Where a father sues for a loss of services of a minor child resulting from an injury caused by the negligence of- the defendant, and proves the fair value of such services, it is not necessary for him to go further and prove how or where or in what manner the child would probably have been employed.</p>

<p>1. Attachment: Intervention. A third party claiming an interest in or lien on property upon which an attachment has been levied cannot intervene in the attachment suit to question the grounds for the issuance of the writ.</p> <p>2. -: Claim Not Due: Surety. Where the payee of a promissory note before the maturity thereof indorses the same to a person who Is surety thereon, such surety takes all the rights ot such payee; and, in cases where the payee could have obtained an attachment under the provisions of section 237 of the code authorizing such process upon claims before due, the surety is entitled to the same remedy.</p> <p>3. Evidence examined, and found to support decision of trial court refusing to dissolve the attachment.</p>

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

<p>1. Eminent Domain: Appraisal: Liens: Estoppel. A purchaser of property at judicial sale is estopped to deny the validity of liens deducted from the appraisement, and the same rule applies to a city taking title by eminent domain, where it is provided in the judgment of appraisal that there shall be no deductions from the award “for taxes or special assessments, the said land being taken by the city subject to all special and general taxes against the property.”</p> <p>2. Tax Sale: Effect. The lien for taxes is not satisfied by a statutory sale of the property for the same, nor by the payment of prior or subsequent levies by the purchaser. Such sale only operates to transfer the lien to the purchaser.</p>

<p>Original application, for a writ of habeas corpus.</p>

<p>1. Cities: Officer: Failure of Successor to Qualify. The city-engineer of a city of the metropolitan class holds the office until his successor is elected and qualified. The failure to qualify by one who has been appointed as his successor by the mayor and confirmed by the council, but who has not taken possession of the office and entered upon the discharge of its duties, does not render the office vacant. Upon such failure to qualify the incumbent may qualify anew under section 17, ch. 10, Comp. St. 1905.</p> <p>2. --: -: -. AVhen it is the duty of the mayor to appoint ah officer and he fails to do so, the council may elect; but this power of the council does not exist when one who has been appointed by the mayor and confirmed by the council fails to qualify, there being an incumbent to hold over until his successor is elected and qualified. In such case the incumbent may qualify anew, and takes the office for the succeeding term.</p>

Original application for a writ of mandamus to compel respondents, members of the state board of equalization and assessment, to certify to the county clerk of Platte county the valuation of the Union Pacific Railroad in Platte county, and that the assessed valuation is 20 per cent, thereof.

<p>Taxation: Exemptions. Under the agreed statement of facts in this case the property of Plattsmouth Lodge No. 6, A. F. & A. M., is not subject to taxation for the year 1905.</p>

<p>1. Criminal Law: Argument oe Counsel. Where, the question as to the alleged misconduct of an attorney in his argument to the jury has been submitted to and decided by the trial court on conflicting evidence, such decision will not be disturbed unless it is unsupported by the testimony and is clearly wrong.</p> <p>2. -: Intent: Evidence. In cases where the guilt of the defendant depends upon the intent, purpose or design with which the act was done, or upon his guilty knowledge thereof, the rule is that collateral facts in which he bore a part occurring immediately before and leading up to the transaction complained of may be examined for the purpose of establishing such guilty intent, design, purpose or knowledge, even though such facts show the commission of another crime.</p> <p>3. -: Instructions. Error cannot be successfully assigned for the giving of an instruction because it fails to cover all of the questions of law arising in a criminal prosecution, if the instructions, when considered as a whole, fairly and correctly state the law applicable to the facts of the case as disclosed by the evidence.</p> <p>4. -: Record: Review. Ordinarily, where the bill of exceptions shows upon its face that it is incomplete and does not contain all of the testimony, the supreme court will refuse to consider it; but in a capital case the court will carefully examine the whole record and determine for itself the sufficiency of the evidence contained in the record to sustain the conviction.</p> <p>1. Criminal Law: Instructions. In a prosecution for murder in the first degree, if the evidence establishes conclusively that the defendant is either guilty of the crime charged or is entirely innocent, a failure to instruct the jury in regard to inferior degrees- of the crime charged in the information is not prejudicial error.</p> <p>2. -: Evidence. Upon trial of a charge of murder by homicide while engaged in an attempt to rob, it is competent to prove upon the question of intent that the proceeds of several robberies committed by defendant and certain of his companions immediately before the act under investigation were divided, and that the defendant received a share therof.</p> <p>3. -: Argument oe Counsel: Acquiescence. It is only in the most flagrant cases of the use of improper language by a prosecuting attorney, even in the prosecution of capital offenses, that defendant’s counsel can apparently acquiesce in the language used by remaining silent until the trial- is finished, and then cause the trial and verdict to be set aside by complaining of statements to which he seemed at the time to consent.</p>

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

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

<p>1. Criminal Law: Opinions op Witness. In a prosecution for the crime of arson, evidence describing the shoes worn by the accused and footprints found near the place where the crime was committed is proper and competent. But it is error to allow.the witness making such comparisons to express his opinion that the footprints werp made by the accused.</p> <p>2. -: Instructions: Alibi. Tt is not reversible error to fail to instruct the jury on the subject of an alibi, where no request to charge upon that feature of the case has been tendered.</p> <p>3. Arson: Evidence. "Evidence examined, and held insuihcient to sustrin -the verdict.</p>

<p>1. Criminal Law: False Pjretenses: Evidence. In prosecutions for obtaining money or property under false pretenses, the facts, when clearly proved, usually speak for themselves, and other proof of guilty knowledge and intent is not required.</p> <p>2. -: -: -: — . In such eases evidence that the accused at other times and places, by acts independent of and not con- , nected with the transaction complained of, has committed like offenses, should not be received to aid in establishing his guilt.</p> <p>3. -: -: -r. When, however, the transaction on which the prosecution is based is of such a character as to require other or further proof, cn the part of the prosecution, of the defendant's guilty knowledge and intent, evidence that he has committed like crimes in a similar manner, at or- about the same time, or as a part of the same general scheme to defraud, may be received for that purpose.</p> <p>Criminal Law: False Pretenses: Evidence. When in a prosecution for obtaining money by false pretenses it is shown that defendant, after having been paid for work done for a county, filed a second claim for the same services and again received the money thereon, ahd his defense is that he received the second payment by mistake, not knowing that his claim had been paid in full, it is competent to prove that at about the same time he obtained double payment of similar claims in the same manner, without affirmative proof that in such other eases he knew at the time of receiving such second payment that the claim on which he received it had already been paid in full.</p>

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

<p>1. Criminal Law: Jeopardy. When a plea of former jeopardy is made by reason of autrefois acquit, the test to determine the identity of the two offenses is whether the evidence necessary to convict in the second case was admissible under the former charge, related to the same crime, and was sufficient to have warranted a conviction upon the former charge. If such a condition is shown to exist, the former acquittal is a bar to the second prosecution, but otherwise it will not operate to prevent prosecution upon another charge, even though based upon acts closely related in point of time.</p> <p>2. -: -. An acquittal of the defendant upon the charge of the murder of one Lausten, held not to be a bar to a prosecution for the crime of robbery of Lausten committed at or about the time of the killing.</p>

Original application for a writ of mandamus to compel respondent, as secretary of state, to authenticate a certain act of the legislature.

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

<p>1. Street Railways: Injuby: Evidence. Plaintiff, in an action for damages for being thrown from a street car while attempting to board the same, testified that after reentering the car the conductor asked her if she was hurt, and she replied that she was. Held, That the court did not err in refusing to strike this testimony from the record.</p> <p>2. Damages: Instructions. In an action to recover for a personal injury suffered on account of the alleged negligence of the defendant, the instructions should limit the recovery for future pain and suffering to such as are reasonably certain to result from the injury.</p>

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

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

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

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

<p>Appeal^from tbe district court for Cberry county: William H. WESTOVER, JUDGE.</p>

<p>Sale of Drugs: Negligence. One who has suffered a direct injury by the unlawful or criminal act of another may maintain an action for the recovery of the damages sustained; but the unlawful sale of a poisonous drug to a minor eighteen years of age, a quantity of which was by said njinor administered to another minor to his injury, does not create a cause of action in favor of the father of the latter for loss of his son’s services and the expense of medicines and doctor’s bills, as it cannot be said that the defendants might reasonably have anticipated that such use would be made of the drug, especially as from the circumstances of the case the presumption arises that the purchaser knew the' qualities thereof and the effect which giving it to another would produce.</p>

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

<p>1. Corporations: Subscription to Stock. Any agreement by which a person, shows an intention to become a stockholder in a corporation is sufficient as a contract of subscription, as against both himself and the corporation.</p> <p>2. -: -. A subscription by a number of persons to the stock of a corporation, to be thereafter formed by them, constitutes a contract between the subscribers themselves to become stockholders when the corporation is formed, upon the conditions expressed in the agreement, and, as such, it is binding and irrevocable from the date of the subscription. It is in the nature of a continuing offer to the proposed corporation, which, upon acceptance by it, becomes as to. each subscriber a contract between him and the corporation.</p> <p>3. -: -. Such contract is based upon a sufficient consideration. There is a mutuality of promise in the act of the particular subscriber in subscribing with others which .obliges him to make good his promise to the corporation after it comes into existence.</p> <p>4. -: -: Action. A subscription to corporate shares, made before the corporation comes into’ existence, but accepted by the corporation after coming into existence, either expressly by issuing the share certificates, or impliedly by recognizing the subseriber as a shareholder, makes him a shareholder, and the corporation may maintain an action upon the subscription against the signers.</p> <p>5. -: -: Statutory Provision. Section 39, ch. 16, Comp. St. 1905, authorizing the opening of books for stock subscriptions, does not limit the right of individuals to subscribe for stock by special agreement for that,purpose made either before or after the filing of the articles of incorporation.</p>

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

<p>1. Easements. An easement in real estate may be acquired by open, notorious, uninterrupted, adverse possession for tbe statutory period of ten years.</p> <p>2. Easement in Street. An easement fn a city street could be acquired by open, notorious, uninterrupted, adverse possession for tbe statutory period of ten years prior to tbe statute of 1899.</p> <p>3. Courts: Judicial Notice. Tbe courts .will take judicial notice of tbe fact that a city is an incorporated city, of tbe time when it was incorporated, and of tbe salient facts of its geography and bistory.</p> <p>4. Easements: Tbansfee. An easement will pass by a deed or grant of conveyance, even if tbe word “appurtenance,” or a similar expression, is not used in tbe instrument, if it is apparent to an ordinary observer, and naturally and necessarily belonged to tbe premises.</p> <p>5.-: Abandonment. Nonuser of an'easement for a less period than tbe statutory period of ten years will not of itself work an abandonment of tbe right.</p> <p>6. -: -: Btjbden of Proof. Tbe burden of proof is on tbe party alleging it to show abandonment, and sucb abandonment must be pleaded.</p> <p>7. Injunction will lie to protect tbe owner of an easement in its enjoyment.</p> <p>8. Pleading: Judgment. Tbe failure to allege in tbe petition that tbe plaintiff had been in tbe exclusive adverse possession of tbe premises for ten years, and of tbe court to find that fact in tbe decree, is not material after judgment, where the proof admitted without objection shows the. possession to have been of that character.</p>

<p>1. Trial: Counterclaim. The practice in this state is that an action, including a counterclaim, shall be tried as an entirety, and not as separate suits.</p> <p>2. -: ■— -: Withdrawal. If for any reason the defendant does not desire to have his counterclaim disposed of in the action wherein it is pleaded, he should move to withdraw it before the final submission of the cause.</p> <p>3. -: -: Waiver. Defendant pleaded a counterclaim, and upon the conclusion of the plaintiff’s evidence moved for and procured an order of the court directing a verdict for defendant upon the plaintiff’s cause of action. Held, That defendant was not entitled thereafter to introduce evidence to prove his counterclaim, that the order directing the verdict concluded the trial, and that defendant by moving for a directed verdict and obtaining a favorable ruling thereon waived a hearing on his counterclaim.</p>

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

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

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

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

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

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

<p>1. Criminal Law: Trial: Presence oe Accused: Presumptions Where the record in a criminal prosecution discloses that the defendant was present during the trial, hut is silent as’ to whether he was present when the verdict was received, it will be presumed that the verdict was properly received and that the defendant was present in court at the time.</p> <p>2.Intoxicating Liquors: Evidence. In a prosecution under section 7170, Ann. St., for keeping intoxicating liquors with the intention of disposing of the same without a license, it is competent for a witness, who is familiar with the taste of beer and has tasted some of the liquors seized, to testify that they tasted like beer.</p> <p>3.-: -: Harmless Error. In such prosecution it is not prejudicial error to admit testimony of keeping of other liquors than those charged in the information, when the evidence shows that the liquors charged in the information were kept for sale and were intoxicating.</p> <p>4. -: Instructions. In such prosecution, where the evidence tends to show that the liquors kept for sale under the names and labels of “Hop Soda,” “Cream of Malt” and “Malt Extract,” were in fact beer, it is not error for the court to instruct the jury, as a matter of law, that beer is an intoxicating malt liquor, and is within the meaning of the words intoxicating liquors, as used in the statute.</p> <p>5. Criminal Law: Conduct of Jury: Harmless Error. It is not such misconduct of a juror as will call for a reversal of the case for a juror to state to his fellow jurors, during their deliberations upon the verdict, that he knew about the facts and had personal knowledge of the facts before he was selected as a juror, where he does not disclose to his fellow jurors the facts that were within his personal knowledge.</p> <p>6. -: -: Record: Review. This court will not consider affidavits made after the trial to determine the question of whether or not a juror had made statements during the deliberations of the jury upon the verdict that were at variance with his voir (Lire examination, when such voir (Lire examination is not in the record, unless it is shown that the complaining party was prevented, without fault on his part, from having such examination taken and preserved in the record.</p>

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

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

<p>Taxation: Jurisdiction. Where the amount or existence of a tax involved in a scavenger suit is not put in issue or determined as a controverted question prior to the entry of decree, the court retains jurisdiction of the subject matter for the purpose of correcting mistakes and preventing injustice until the confirmation of the sale.</p>

<p>1. Cities: Powers. A city of the second class of less than 5,000 inhabitants is authorized by the law of this state to operate an ele.ctric lighting plant for municipal and commercial purposes.</p> <p>2. -: Liability. Where such city is engaged in the operation of an electric lighting plant for commercial purposes, and one of its wires is negligently left in a position to cause injury to one who is without fault on his part, the fact that such wire was not in use at the time the accident occurred constitutes no defense to an action for damages.</p> <p>1. Trial: Examination of Witness. It is a valid objection to a question upon cross-examination that it is unnecessarily complex in form and involved in meaning, and it is not error to sustain an objection to such a question upon that ground, especially where the party makes no offer to put his interrogatory in a simpler and clearer form.</p> <p>2. New Trial: Showing. An affidavit for a new trial on the ground of newly discovered evidence must state facts and circumstances from which the court may determine that the party applying exercised diligence in endeavoring to procure such evidence before the trial.</p>

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

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

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

<p>Descent and Distribution: Gift to Ancestor. After the death of one to whom has been made a gift or loan, the distributive shares of the children of the debtor or donee, as heirs at law of the creditor or donor, cannot without their consent be diminished by charging a gift or loan as an advancement to their ancestor, which has not acquired that character during the lifetime of the latter.</p>

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

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

<p>Master and Servant: Appliances: Assumption oe Risk. “Where a servant, in obedience to the requirements of his master, incurs the risk of machinery or appliances which, although dangerous, are not of such character that they may not be safely used by the exercise of reasonable skill and caution, he does not as a matter of law assume the risk of injury from accident resulting from the master’s negligence.” Lee v. Smart, 45 Neb. 318; Sioux Gity £ P. R. Go. v. Finlayson, 16 Neb. 578.</p> <p>Master and Servant: Appliances: Negligence. A servant, who has been induced by a master’s promise of repair to begin or continue to work with defective appliances, may use such defective appliances without being guilty of contributory negligence and without assuming the risk of injury from such defects, so long as he may reasonably expect the master’s promise of repair to be kept, unless _ the danger from using such defective appliances is so obviously imminent and immediate that no reasonably prudent person would begin or continue to work with them.</p>

<p>Divorce. It is not ground for divorce in this state that a man asserts and exercises the right to govern his own household, or that he indulges in the habitual, if moderate, use of intoxicating liquors.</p>

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

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

<p>1. Cities: Additions. The subdivision into lots of property contiguous to but outside tbe corporate limits of a city, and tbe filing of a plat of sucb subdivision by the owner thereof, does not have tbe effect of changing tbe boundaries of tbe city so as to include therein sucb property.</p> <p>2. -: -. Where proceedings are bad to incorporate a city, or to add to tbe territory of one already existing, if tbe body exercising tbe power to establish or attach the territory possesses jurisdiction, its action cannot be collaterally attacked; but this rule does not apply where there is no attempt to exercise sucb jurisdiction except tbe act of tbe county clerk in extending upon tbe tax list city taxes against property outside tbe city limits.</p> <p>3.-: Taxation: Illegal Levy: Injunction. Tbe levy of city taxes upon property outside its boundaries is without authority, and sucb taxes are illegal and void as to sucb property, and their collection may be restrained by injunction.</p>

<p>1. Husband and Wife: Maintenance. A wife may bring a suit in equity to secure support and alimony without reference to whether the action is for divorce or not.</p> <p>2.-: -. Every wife is entitled to a home corresponding with the circumstances and condition of her husband, over which she shall be permitted to preside as mistress, and she does not forfeit her right to maintenance by refusing to live in the home with and under the control of the husband’s mother.</p>

<p>1. Taxation: Lien. The filing with the treasurer of a tax list without the warrant required by section 83 of the revenue law of 1879 (laws 1879, p. 306) does not create a lien upon'the personal property of the person assessed under the provisions of section 139 of the same act. The words “tax boohs” in the latter section held to mean the tax list with warrant attached.</p> <p>2. -: -: Chattel Mortgage. The lien of a chattel mortgage taken before the tax books were delivered to the treasurer is superior to the lien for taxes for that year, created by such delivery, under the provisions of section 139 of the revenue law of 1879 (laws 1879, p. 332), but inferior to the lien for subsequent years. Woolsey v. Chamberlain Banking House, 70 Neb. 194, followed.</p> <p>3. Equity: Offer in Petition. An offer to do equity is only required to be made in the petition in those cases where an equitable duty or obligation rests upon the plaintiff, and where such duty or obligation could not be enforced by the court except for such offer.</p> <p>1. Taxation: Seizure of Personalty. The tax list in the hands of the county treasurer will authorize him to receive and collect the taxes described therein; but to invest him with jurisdiction to seize personal property for the satisfaction or enforcement of a tax lieh thereon, the clerk’s warrant provided for by statute must be attached to such list.</p> <p>2. -: -. Until such a warrant is attached to the tax list there exists no enforceable lien for the payment of the taxes against the- personal property of a tax debtor.</p> <p>3. -: Liens: Priorities. A purchaser of personal property under moi’tgage sale, before the tax lien has attached, takes it free of all claims for the taxes.</p>

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

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

<p>1. Partition: Devisees. One of four children who claim under a will devising lands to such of said children as shall- survive a period of ten years after the testator’s death cannot maintain partition against his codevisees before the end of such period.</p> <p>2. -: -. Where property is devised in trust for minor children for a period of ten years after the testator’s death, then to be divided amongst such of his children as shall survive the period, one of such children cannot maintain partition during the existence of the trust.</p>

<p>Original application for a writ of mandamus to compel respondents, as members of city council, to canvass vote.</p>

<p>1. Lis Pendens: Constitutional Law. The amendment to section ,85 of the code made in 1887, enlarging the scope of our Us pendens statute, is not unconstitutional.</p> <p>2. -: Object oe Statute. It was not the intention of the legislature, in providing for filing a notice of Us pendens in actions wherein the title of real .property is involved, to make persons holding unrecorded conveyances of such property, or unrecorded - incumbrances against the same, parties to the action, and to summon them into court by means of such Us pendens notice; nor is the effect of the amendment such as to make them parties, or to serve such holders of unrecorded interest with notice by publication. The true meaning of the amendment is to provide a means by which a party holding unrecorded instruments, or undisclosed or secret interests affecting the property in litigation, may be estopped from asserting the same against the judgment finally entered in the action.</p> <p>3. Lis Pendens: Effect of Judgment. The right of the legislature to provide that an unrecorded conveyance shall not be asserted against a subsequent conveyance made to a good faith purchaser is undoubted, and on the same principle its right to declare a judgment, defining the interest of a party to the suit in real estate involved in the action, paramount and superior to the interest conveyed by an unrecorded instrument, executed prior to the filing of a notice of Us pendens, cannot be doubted or questioned. , Sheasley v. Keens, 48 Neb. 57, in so far as it holds any part of the amendment to section 85 of the code unconstitutional, disapproved and overruled.</p> <p>4. -: Notice of Inteeest in Pboperty. The filing of a Us pendens notice does not cut off or affect the rights of one whose interest in the property affected by the suit is known to the plaintiff when the notice is filed.</p>

<p>1. Public Lands: Death op Entryman: Rights oe Devtsees. Deceased entered certain public land as a timber-culture claim under the laws of the United States, but the patent was not issued until' after his death. Held, That the legal title-to such land remained in the general government, that such entryman had no devisable interest therein, and that the devisees named in his will acquired no title to the premises.</p> <p>2. -: -: Probate Court: Jurisdiction. Held, further, that, as the land did not belong to the estate of the deceased and was not devisable by him, the county court had no jurisdiction to determine the title to the real estate by adjudging that the devisees named in the entryman’s will were the owners of the premises to the exclusion of the heirs at law in whose name the patent was issued by the United States.</p> <p>3. Equitable Estoppel. To constitute an equitable estoppel, there must exist a false representation or concealment of material facts; it must have been made with knowledge, actual or constructive, of the facts; the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; it must have been made with the intention that it should be acted upon; and the party to whom it was made must have relied on or acted upon it to his prejudice.</p>

<p>Original application for a writ of habeas corpus.</p>

<p>1. Criminal Law: Evidence: Instructions. Evidence that the defendant in a criminal case has hired or procured a witness for the prosecution to leave the state and not appear at the trial as a witness against him is competent as an incriminating circumstance tending to establish his guilt; and it is proper for the court to charge the jury that such fact is a circumstance which may be considered by them, with all of the other evidence in the case, in determining the guilt or innocence of the accused.</p> <p>2. -: Misconduct op Jury. The fact that the officer in charge of a jury, in taking them to their boarding place, conducted them along the street where the crime was alleged to have been committed, was not such misconduct on the part of the jury as to require a reversal of the judgment.</p>

<p>1. New Trial. A new trial will not be granted upon tbe ground of newly discovered evidence, where such evidence is merely cumulative and would not, in all probability, affect the result if a new trial were granted.</p> <p>2. -. Under the facts stated, held that the defendant is not entitled to a new trial upon the ground of surprise.</p> <p>3. Evidence examined, and held sufficient to sustain the verdict.</p>

<p>Cities: Liability. The making, improving and repairing of streets by a municipal corporation relate to its corporate interest only, and it is liable for the wrongful or negligent acts of its agents in performing such duties. City of Omaha v. Croft, 60 Neb. 57.</p>

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

<p>1. Evidence. In an action by a subordinate lodge of a fraternal beneficial association, tbe books and records of the lodge when properly identified are receivable in evidence against the members of the lodge and their privies. > ■</p> <p>2. Corporations: Insurance: Estoppel. Where a surety company issues an indemnity policy insuring a fraternal beneficial association from loss by larceny or embezzlement of its officers, the contract not being illegal, the company will be estopped from denying the legal capacity of the association in an action on the policy by the association against the company.</p>

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

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

Original proceeding in quo warranto to determine the right of respondents to exercise the duties of the office of councilmen of the city of Arapahoe.

<p>Appeal from the district court for Richardson county: John B. Raper, Judge.</p>

<p>Disorderly Conduct: Information. An information for an offense made criminal by statute or ordinance must charge every element of the offense as defined by the statute or ordinance.</p>

<p>1. Evidence: Collateral Facts. Where there is a direct conflict in the evidence of the witnesses relating to a material issue in the case, any collateral fact or circumstance tending in any reasonable degree to establish the probability or improbability of the fact in issue is relevant evidence and proper for the consideration of the jury.</p> <p>2. Appeal: Evidence: Instructions. A judgment will not be reversed where the evidence relating to the amount of damages is conflicting, and where the rule of damages to be allowed is submitted to the jury under proper instructions.</p>

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

<p>Payment: Agreement oe Parties. What may be received in payment of a debt is a matter of contract between the interested parties, with which, in the absence of fraud or mistake, the courts will not interfere.</p>

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

<p>Counties: Contracts. A resolution set out in the opinion, adopted by a county board, and designating a certain newspaper as one in which the county treasurer shall publish certain notices, does not, in the circumstances of the ease, constitute a contract between the county and the proprietor of the newspaper.</p>

<p>1. Divorce: Findings: Review. The findings of a trial judge as respects the value of real property situated in.localities with which he is familiar, and made, after hearing conflicting testimony of witnesses, as the foundation for a decree of alimony, when not assailed for bias or prejudice or obvious mistake, are entitled to some consideration, and will not he disregarded upon appeal, unless it is made to appear that inferences from the evidence drawn by this court are more likely to be correct than were his.</p> <p>2. -: Alimony. The court, in awarding permanent alimony, will not speculate upon a future income from a continuous and persistent career of vice and criminality, and adopt as a basis for its decree a division of the anticipated spoils of iniquity.</p>

<p>Waters: Railroad Embankments: Negligence. Although, a rainfall may be more than ordinary, yet, if it be such as has occasionally occurred at irregular intervals, it is to be foreseen that it may occur again; and a party engaged in a public work, the construction of which involves the change or restraint of the flow of water in a natural channel, is guilty of negligence if he fails to make reasonable provision for the consequences that will result from such extraordinary rainfalls as experience shows are likely to occur.</p>