Volume 80 — Nebraska Reports

Original application for a ivrit of mandamus to compel respondent: to place the name of relator on the primary election ballot.

Original application for a writ of mandamus to compel respondents to canvass and certify the votes cast for relators as candidates for judge of the district court.

<p>1. Burglary: Stobeiioush. A vat six or eight feet deep and six feet in diameter, constructed of heavy oak timbers, which is partly sunk in the ground, having a hinged cover secured in place by a lock, and which is used for storing hides, awaiting sale, is a “storehouse,” within the meaning of that word, as used in section 48 of the criminal code.</p> <p>2. Trial: Witnesses: Crep ibtltty: Questions tor Jury. The fact that a witness testifies to matters oh his cross-examination which are somewhat inconsistent with his direct evidence does not warrant the court in rejecting his testimony altogether, for' it is the province of the jury to determine the matter of the credibility of the witnesses, and the weight which should be given to their evidence.</p>

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

<p>Appeal from the district court for Dodge county: James G. Reeder, Judge.</p> <p>The folloAving opinion on rehearing was filed July 17, 1908. Former judgment of affirmance adhered to:</p>

<p>1. Highways: Improvement. A public road is for use by the traveling public, and may be improved to accommodate footmen, as well as those using it for teams, wagons or other vehicles.</p> <p>2. -:—: Sidewalks. A sidewalk constructed outside the traveled way for teams, but within the boundaries of the road, does not constitute an additional burden added to the easement possessed by the public in the land over which the road passes.</p> <p>3. --•: -. The owner of the 'fee cannot complain that a sidewalk is being constructed along a public road by private parties, where permission to build the walk has been granted by the board of county commissioners.</p>

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

<p>1. Pleading: Vehieication. The verification of a pleading is hot jurisdictional, and the failure to verify is waived unless objection, is made before trial.</p> <p>2. Estoppel: Principal and Agent. By correspondence, plaintiffs, who are real estate brokers, arranged with a landowner for a sale of his land to a stranger, and during the negotiation demanded a certain sum as their commission, which, upon consummation of the sale, was paid to them. SeM, That the plaintiffs will not be heard to say that they were not the agents of the vendor.</p> <p>'3. Replevin: Defenses. A replevin action against a tenant for the possession of grain due from him as rent may be defeated by a showing that the title and right to possession is in a third person.</p> <p>4. Principal and Agent. An agent, having authority to sell both real and personal property for a certain sum, cannot, without the consent of his principal, take over to himself the personal property upon receiving the authorized sum for the real estate.</p>

<p>Appeal from the district court for Colfax county: James G. Reeder, Judge.</p> <p>The following opinion on rehearing was filed May 7, 1008. Former judgment of affirmance adhered to:</p>

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

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

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

<p>1. Cities: Injusv: Notice. A statutory notice is-not rendered void by the inclusion of surplusage wbicb bas not misled tbe party notified to bis prejudice.</p> <p>2. Appeal: Evidence. Incompetent testimony concerning a matter about which there is ho dispute is not ground for reversal.</p> <p>3. Cities: Walks: Abandonment. In the circumstances of this case there appears to have been no abandonment or vacation of a pathway for pedestrians along which the city had previously constructed and maintained a sidewalk.</p>

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

<p>Insurance: Contract: Parol Evidence. Where, in a written application for life insurance, the applicant agrees that no statements, promises or information made or given by the person soliciting or taking such application shall be binding on the company, unless embodied in the application and presented to the company at its home office as a part thereof, the applicant cannot show that such application was conditioned upon an agreement not contained therein, made by the agent soliciting the application, that the company was to make a real estate loan for the amount of the policy.</p>

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

<p>1. Embezzlement: Information. In a prosecution for embezzlement under section 124 of the criminal code, it is not necessary to allege in tbe information that the city whose funds are embezzled is an organized city.</p> <p>2. -■—: -. Information examined, its substance stated, and held not vulnerable to the objection that “it fails to allege that the accused embezzled and converted the public money in question while holding it as city treasurer.”</p> <p>3. Criminal Eaw: Instructions. Instructions must be considered and construed together, and if then they correctly announce the rule applicable to the issues and evidence they will be upheld, even though a single paragraph standing alone might be faulty.</p> <p>4. -: Evidence. In a prosecution for embezzlement, or other crime, where the books, records, papers and entries are voluminous and of such a character as to render it difficult for the jury to arrive at a correct conclusion as to amounts, an expert accountant may be allowed to examine such books, etc., and testify as to the result of his examination, and as to particular entries therein, shown to be in the handwriting of the defendant, when such books are in the courtroom subject to inspection by the accused, and the particular entries are also introduced in evidence.</p> <p>5. -: Admissions. Voluntary'admissions or confessions of the accused tending to establish his guilt may usually be received in evidence against him, and the fact that such admissions contain statements tending also to show the commission of an offense other than the one for which the defendant is on trial does not render them inadmissible.</p> <p>6. Evidence examined, and held sufficient to sustain the verdict.</p>

<p>1. Embezzlement: Information. The estate of a deceased person, pending administration, is a legal entity; and, in charging a violation of section 121 of the criminal code, it is sufficient, as to the matter of ownership, to allege that the money or property embezzled belonged to such an estate.</p> <p>2. -: -. An information based on the provisions of the section above named, which charges, in the language of the statute, that the property in question came into the possession of the defendant “by virtue or under color of his relation as an officer,” is not void for duplicity, and is sufficient in that respect to sustain a conviction.</p> <p>3. -—: -. In charging the embezzlement of a certificate of deposit belonging to an estate, it is sufficient to describe the instrument as it appeared at the time it came into the possession of the accused, and subsequent indorsements, procured by him, need not be set forth in the information.</p> <p>4. -: Evidence. Bill of exceptions examined, and evidence found sufficient to sustain the conviction.</p>

<p>Ereor to tbe district court for Otoe county: Paul Jessbn, Judge.</p>

<p>1. Banks: Bonds: Execution. The cashier of a bank is the proper officer to execute a bond on its behalf to secure a deposit of public money made therein, and the bank will be bound by such execution, in' the absence of some rule or regulation adopted by the directors or stockholders requiring special authority on the part of the cashier to execute such bonds, and notice of such fact brought to the attention of the obligee therein.</p> <p>2. Bonds: Sureties. A surety signing a bond after other sureties have executed the same affirms the genuineness of the previous signatures.</p> <p>3.-: -: Liability. A surety who sighs a bond upon the condition that it is to be signed by other sureties is not released from liability, thereon because the others did not sign, unless notice of the condition on which his signature was obtained is brought home to the obligee.</p>

<p>Mortgages: Foreclosuke: Sale: Confirmation. An order confirming the sale of real estate by a court having jurisdiction of the parties and subject matter, in the absence of fraud, cures all defects and irregularities in the appraisement, and is conclusive upon all the parties to the suit and those claiming under them, until reversed or set aside.</p>

<p>1. Specific Performance: Oral Contract: Evidence: Performance. The law is well settled in this state that an oral agreement to convey real estate will be specifically enforced where the evidence of such agreement is clear arid satisfactory, and the plaintiff has fully performed on his part.</p> <p>2. -: -: -. Where the acts performed by the plaintiff tend to show, not only that there was an agreement, but also throw some light on the nature of that agreement, the evidence cannot be said to rest wholly in parol, the parol evidence being auxiliary to the proof afforded by the case itself.</p> <p>3. Declarations against interest cannot be annulled or explained away by. counter declarations.</p>

Grimes, Judge. The following opinion on rehearing was filed June 4, 1908. Former jtidgment modified and judgment of district court affirmed:

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

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

<p>1. Guardian and Ward: Loans. Section 27, ch. 34, Comp. St. 1907, requires a guardian to apply to and receive from the county court an order authorizing him to loan the funds of his ward. If he loans his ward’s funds without such authority, and a loss ensues, he is liable therefor.</p> <p>2. -: -. The personal direction and supervision of the county judge in making loans for a guardian is not equivalent to an order of the court authorizing the loans.</p> <p>3. -: -: Annual Reports: Approval. The approval by the-county court, -without notice to those interested, of the usual annual reports of a guardian, wherein he reports loans of his ward’s funds without an order of the court, is not equivalent to an order of the court authorizing the guardian to make such loans.</p>

<p>1. Pleading: Construction. A petition which, seeks a recovery for several breaches of one contract states but one cause of action, and is not subject to a motion to separately state and number.</p> <p>2. Carriers: Discrimination: Mistake. Section 10009, Ann. St, does not render void a contract between a railroad company and a shipper to transport merchandise for less than the usual and regular freight rate, where such rate has been agreed to by mistake of the railroad company without intending any discrimination against other shippers. Where such contract had been entered into and the freight transported in pursuance thereof, if the railroad company compels the payment of freight charges in excess of the contract rate, such excess may be recovered by the shipper.</p> <p>3. Appeal: Evidence: Harmless Error. Rulings on tiie admission of evidence examined, and held not to be prejudicially erroneous.</p> <p>1. Carriers: Discrimination: Mistake. Under section 10009, Ann. St., a contract between a railroad company and a shipper to transport merchandise for a less rate than that usually and regularly charged to others for similar and contemporaneous service is void, even though such rate was agreed to by mistake; and an action will not lie against the carrier for a breach of the contract, if it exacts the regular rate. „</p> <p>2. Cases Disapproved. The second paragraph of the syllabus in this case, ante, p. 132, overruled, and the holding in Missouri P. B. Co. v. Crowell Lumber & Crain Co., 51 Neb. 293, disapproved.</p>

<p>1. Wills: Devise: Condition Precedent. A devise in a will in the following language: “In case my said son Oliver shall keep, care for and support me during the remainder of my life, as a consideration therefor, I give, devise and bequeath to my said 'son Oliver the south half, * * * but if my said son shall fail to keep, care for and support me during all of the remainder of my life, said south half * * ® shall become a part of the residue and remainder of my estate”—field to be a devise upon a condition precedent and requiring substantial performance to vest title in. the devisee.</p> <p>2. ;-: Construction. A will should, if possible, be construed so as to give effect to each and every part thereof.</p> <p>3. —*—: Words oe Limitation. Unless a different" intention is apparent, words of limitation in a devise will be given their usual and ordinary meaning.</p> <p>4. -: Condition Precedent: Waiver. As a general rule, waiver of performance of a condition precedent to the vesting of a devise must be shown either from the will or a codicil.</p> <p>5. -; -: Nonperformance. Nonperformance of a condition that must he performed during the life of the testator is not excused by devisee’s ignorance of the condition.</p> <p>6. Evidence examined, and held insufficient to show substantial performance of the conditions of the devise.</p> <p>7. Partition: Tkial. In an action of partition, where the defendant answers, claiming title in himself, and waives a jury and pai-ticipates in a trial of all the issues to the court without objection, he will be held to have waived any right he may have had to have the title first determined.</p> <p>8. -: Wills: Jukisdiotion. The district court has jurisdiction in an action of partition to construe a clause in a will determining the rights of the parties to the land under the will.</p>

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

<p>Error to the district court for Cedar county: Anson A. 'Welch, Judge.</p>

<p>Findings: Evidence. Evidence examined, and held sufficient to sustain the findings and judgment of the trial court.</p>

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

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

<p>Appeal: Conflicting Evidence: Findings. When the evidence in the district court consists ot oral testimony which is in sharp and irreconcilable conflict, and the conclusion derivable therefrom is dependent in part upon inferences from circumstances, some of which are in dispute, and in part upon the weight and credibility of testimony to be determined from the degree of competency of the witnesses, their opportunity for knowledge and the apparent clearness of their recollection, and the reasons therefor, the findings of the trial judge will be considered in determining the issues in this court.</p>

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

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

<p>Attachment: Bond: Liability. Where an action is brought without the authority or sanction of the party in whose name it is prosecuted, and an attachment is procured to be issued thereon, such attachment is wrongfully obtained within the meaning of section 200 of the code.</p>

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

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

<p>1. Proof of reputation is properly confined to the reputation of the individual in the vicinity in which he lives or in which he had formerly resided.</p> <p>2. Criminal Law: Evidence. Where articles are offered in evidence which are pertinent to the issue, the court will not exclude them on account of the manner in which they were obtained.</p> <p>3: -: INSTRUCTIONS. It is not error to refuse an instruction removing certain evidence from the consideration of the jury at the close of the trial, where the evidence was received without objection at the time of its admission, and no motion then made to strike it out.</p> <p>4. -: Evidence: Harmless Error'. Where a defendant in a prosecution for rape calls out from the prosecutrix on cross-examination the description of her assailant that she gave at the time she made complaint, it is not prejudicial to him to allow the person to whom the complaint was made to testify that immediately after the assault the prosecutrix complained that she had been assaulted by a negro, and to give her description of him then made.</p> <p>5. -: Instructions. Where the testimony of the prosecutrix in a rape case as to the fact of the'assault is fully corroborated, and her evidence as to the identity of her assailant is also sustained by evidence in corroboration, it is not prejudicial error for the court to omit to instruct as to the necessity of corroboration, when the only instruction requested by the defendant upon that point does not fully and correctly state the law.</p> <p>6. Evidence examined, and held to sustain the verdict.</p>

<p>Appeal from the district court for Nemaha county: Paul Jessen, Judge.</p> <p>The following opinion on motion for rehearing was filed October 8, 1908. Opinion, modified. Rehearing denied:</p>

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

<p>1. Courts: Jurisdiction: Evidence. An objection to the jurisdiction of the court over the person of the defendant, either on account of irregularity in the service of the summons or because the action was brought in the wrong county, must be supported by evidence when the .record in the case does- not show facts going to support the objection.</p> <p>2. Insurance: Agent’s Contract: Construction. A solicitor for an insurance company was to receive 80 per cent, of the first 12 premiums paid by the parties whom she might procure to take policies in the company. Held, That her leaving the service of the company before all the 12 premiums were paid did not affect her right to (lie commission agreed on.</p> <p>3. -: -: -. That such solicitor was assisted in securing applicants for insurance toy a field agent of the company is not, under the facts disclosed, a defense to her claim for commissions.</p>

<p>1. Affidavits tafeen and subscribed before a notary public, wbo is also an attorney in tbe case, cannot be used in support of an attachment issued therein against the objections of the defendant.</p> <p>2. Trial: Evidence: Admissibility. The courts of this state are not bound by the rules of evidence adopted in another jurisdiction, but must be governed in the admission of evidence by the law prescribed by our own legislature.</p> <p>1. Affidavits: Objections. Section 371 of the code, providing that an affidavit may be made before any person authorized to take depositions, cannot inferentially be construed as requiring that objections to affidavits as evidence shall be made in the manner provided by statute for the filing of objections to depositions.</p> <p>2. Appeal: Estoppel. A party cannot take advantage of the court’s erroneous rulings which he invokes.</p> <p>3. Attachment: Motion to Dissolve: Bouden oe Peooe. Where the grounds relied on to support an attachment are positively denied by the oath of the defendant, the burden is upon the plaintiff to prove his grounds for attachment by a preponderance of evidence.</p>

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

<p>1. Limitation of Actions-. “Where, after the maturity of a note secured by a real estate mortgage, interest payments are made annually on such note, a right of action accrues on the mortgage at any time within ten years after the date of the last payment on said note.” Teegarden v. Burton, 62 Neb. 639.</p> <p>2. Evidence examined, and held sufficient to sustain the finding and judgment of the district court.</p>

<p>1. Alteration of Instruments: Burden of Proof. The burden is upon the party alleging' the material alteration of an instrument to prove that it was altered by the holder thereof after the execution and delivery of the same.</p> <p>2. Evidence examined, and held insufficient to prove that the instruments in controversy had been altered after their execution by •defendant.</p>

<p>1. Pleading: Amendment: Construction. Original and amended petitions examined, and held that the amended petition did not state a different cause of action from that attempted to be set up in the original petition.</p> <p>2. —-: -: Limitations. A plaintiff has a right to file an amended petition setting up a good cause of action after the sustaining of a general demurrer to his original petition, notwithstanding the fact that the statute of limitations has .run prior to the filing of the amended petition, provided the amended petition does not seek to recover Upon a new and independent cause of action; and it is error to sustain a motion to strike such an amended petition from the files. “</p> <p>3. Appeal: Amended Petition: Motion to Strike: Review. When an amended petition has been stricken from the files upon the ground that it states a different cause of action from that set forth in the original petition and one that is barred by the statute of limitations, the plaintiff 'is entitled on appeal to review the ruling of the court in striking the amended petition from the files.</p> <p>1. Pleading: Cause oe Action. All facts which, taken together, are necessary to fix the responsibility for an injury complained of constitute a cause of action.</p> <p>2.-: Amended Petition : New Cause oe Action. A cause of action alleged in an amended petition, although founded upon the same injury as that described in the original, is a different cause of action, if it is dependent entirely upon different reasons for holding the defendant responsible for the wrong alleged.</p> <p>3. -: -: -. The, original petition alleged a personal injury and consequent damages to plaintiff because of the negligence of a third party, and that defendant succeeded to the liabilities of such third person; the amended petition alleged that said injury was caused by defendant’s negligence. Held, That the amended petition stated a new and different cause of action.</p> <p>4. -; Conclusions oe Law. In testing the sufiiciency of a pleading, mere conclusions of law will be disregarded.</p> <p>5. Judgment Vacated. Our opinion herein, ante, p. 250, vacated.</p>

<p>1. Appearance: Special and General. A defendant may appear specially to object to the jurisdiction of the court, but if, by motion or other form of application to the court, he seeks to bring its powers into action, except oti the question of jurisdiction, he will be deemed to have appeared generally. Oropsey v. Wiggenhorn, 3 Neb. 108.</p> <p>2. -: -. In an action at law against a nonresident defendant, if service is made upon the defendant in any manner not authorized by law, defendant may appear specially and move to quash the service, but, if he go further and pray for a dismissal of the case, it will be held to be a general appearance in the action, as it invokes the power of the court on a question other than that relating to jurisdiction. Buclclin v. Striekler, 32 Neb. 602.</p>

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

<p>1. Cities: Warrants: Validity. A warrant issued by a city in consideration of a demand which is a valid obligation payable out of its general funds is not invalidated by a recital, not contemplated by the statute, that it shall be payable out of a special fund which the city is not authorized to create, or out of a special fund which the city may lawfully create, but the failure to create which is due solely to the fault or negligence of the city.</p> <p>2. Limitation of Actions: Acknowledgment of Debt. A warrant issued by the proper authorities of a city ih consideration of a valid indebtedness against it is a written acknowledgment of such indebtedness and promise to pay it, and arrests the running of the statute of limitations.</p>

<p>1. Appeal: Practice: Briefs. Errors assigned by appellee in his printed brief filed after the date required by rule 35 will be considered when the appellant neither objects to the service and filing thereof, nor moves to strike it from the record as having been filed out of time.</p> <p>2. Tax .Certificate: Foreclosure: Description. Where, in a suit to foreclose a tax sale certificate, a clerical mistake appears to have been made in the description, such error will not defeat the action if sufficient remains in the description to identify the land upon the tax list.</p> <p>3. Taxation: Void Assessment. Where land owned by one person is assessed with land of another, so that neither owner can determine the amount for which his property is liable, the entire tax is void.</p> <p>4. -: Description. In a description of land by metes and bounds, a point of the compass- named in a survey may be construed to mean a different or opposite direction, when it appears to have been written by clerical error, and is so inconsistent with the remaining parts of the description as to demonstrate that the different or opposite direction was intended.</p>

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

<p>1. Injunction: Repeated Trespasses. The destruction of a fence, and threatened repetition thereof, hy a trespasser, as often as the fence may be replaced, entitles the owner to relief by injunction against the invader, even though the latter may not be insolvent. Pohlman v. Evangelical Lutheran Trinity Ohurch, 60 Neb. 364, followed.</p> <p>2. -: Defenses. In an action to enjoin a trespass, a defendant cannot defeat the plaintiff’s action by showing an outstanding right in a third party to have one of the deeds in the plaintiff’s chain of title declared a mortgage.</p> <p>3. -: Parties: Substitution: Evidence. Where, in an action brought to restrain a trespass upon real property, the same is . sold during the action, and the vendee thereupon substituted as plaintiff, such substitution does not modify the issues; and evidence taken before such transfer should be considered in the same manner as if there had been no change of parties. .</p> <p>4. Appeal: Evidence. Where, after the introduction in evidence of an abstract of title under section 66, ch. 73, Comp. St. 1905, the original records referred to in s.uch abstract are received and show the same facts, no error in the introduction of the abstract can be assigned.</p>

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

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

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

<p>1. Judgment: Collateral Attack. Generally, where the determination of a matter has been committed to a particular administrative or legislative board or officer, and no appeal is provided for from such decision, its order or determination is final, and will not be subject to collateral attack.</p> <p>2. Injunction: Drains. In a proceeding to establish a drainage ditch, if the county board possesses jurisdiction and authority to act in the premises, injunction will not lie on account of mere irregularities in the exercise of the power conferred.</p> <p>3. Statutes: Construction. The doctrine of strict construction of statutes in derogation of common right is not to be so unreasonably extended as to hamper the execution of public enterprises designed for the general welfare, but at the same time property rights of individuals are not to be interfered with unless the power to do so is plainly conferred by the law.</p> <p>4. Drainage Districts: Power to Create. The drainage act of 1881 (laws 1881, ch. 51) confers the power upon county authorities to create drainage districts for the purpose of draining “marsh or swamp lands” alone, and does not confer power to change the channel or divert the flow of running streams or natural surface water drains for the purpose of relieving the lands of riparian proprietors lower down the stream from periodical overflows in seasons of freshet.</p> <p>5. -: -. The term “marsh or swamp lands,” as used in said act, has a wider significance than the terms “marshes” or “swamps.” The power is conferred by this act to drain lands which are not, strictly speaking, “marshes” or “swamps,” but which are “marsh or swamp lands,” meaning thereby lands which are so situated as to be rendered difficult or incapable of successiul cultivation by reason of retaining in the soil or carrying on the surface an excessive quantity of water during certain portions of the year, even though at other times they, may be as solid, dry and firm as lands in general.</p> <p>6. Statutes: Constbuution. In considering an amendatory or substituted statute, it is proper to consider the provisions of the law which was repealed in connection with the law which takes its place, in order to ascertain the legislative inte’nt, and all provisions of the original statute which are not carried forward into or repeated in the new law are annulled by the repealing statute.</p> <p>7. -: -. In order to ascertain the proper ■ meaning of a statute later as well as earlier legislation upon the same Subject may be referred to. All existing acts should be considered, and a subsequent .statute may often aid in the interpretation of a prior one.</p> <p>8. Drains: Poweus of County Boaeds. Under the facts set forth in the opinion, held that the county board of Kearney county is without jurisdiction to change the channel and divert the waters of the streams mentioned in the opinion from their natural flow for the purpose of preventing overflows, nor has it the authority to take part of the plaintiff’s land against his will for the purpose of draining the lands embraced within the proposed drainage district.</p>

<p>1. Street Hallways: Charter. The charter of a street railway company organized for the purpose of constructing a system of lines in a city of this state, under act of February 15, 1877 (laws 1877, p. 135), must fix the termini of the road, and state the street or streets through which it is proposed to construct and operate the same.</p> <p>2. -: Use of Streets: Submission to Electors. The consent of a majority of the electors of the city to the use and occupation of the streets over which the proposed road is to he constructed must he obtained before construction is commenced; such consent to be given or withheld at an election called for that purpose.</p> <p>3. -: -. The consent of the electors to the occupation of all the streets of a city by a street railway company, where no termini are mentioned in the notice of the election, carries with it no right to the use of any street which is not used for the construction of the road within a reasonable time thereafter. To hold that such blanket consent, where no termini or route is submitted to the electors, confers on the company the right to the use and occupation of any of the streets which it might at any time thereafter select as best suited to its interest would be awarding to a private corporation a power which the people, by their constitution, have withheld from the legislature of the' state and from the municipal authorities where the streets are located.</p> <p>4. Quo Warranto: Proceedings Against Corporation. An information in .the nature of a quo warranto filed against a corporation hy its corporate name admits the existence of the corporation. If the charge be that the corporation is exercising powers not given by its charter, the action proceeds against the corporation to oust it from the use of the usurped power; but, where it is claimed that corporate powers are being usurped by a body which has no corporate existence, then the action must be against the individuals who are usurping corporate rights.</p> <p>5. Estoppel: Laches. The courts, in a proper case, will apply the doctrine of laches to a case in which the state is a party plaintiff. The state, like individuals, may be estopped by its acts or laches, and should not be allowed to oust a corporation of its rights and franchises where, for a long series of years, it has stood silent and seen the corporation expend lai’ge sums in the acquisition of property and improvements made thereon under a claimed right so to do under its charter.</p> <p>6. Judgment: Res Judicata. The city of Lincoln brought an action against a street car company to oust it from the possession of certain streets in which its tracks were laid, alleging that its only right in the streets was derived from the purchase of the property and franchise of another company that had obtained the consent of the electors of the city to the use of its streets for railway purposes, that such consent was not transferable, and that the tracks of the company were an obstruction in the streets and constituted a public nuisance. On demurrer to this petition judgment went in favor of the defendant, which judgment is still in full force and effect. Held, That if it were conceded that the city represented the state in such action, and that the state was bound by the judgment to the. same extent as the city, still the force of the judgment as a bar or estoppel in a subsequent action brought by the state could extend no further than to define the rights of the company in the streets then occupied by its tracks, that being the only question litigated, the right of the comiiany to the use of other streets not being in issue.</p> <p>New Trial: Practice in Supreme Court. Rule 7 of this court allowing 40 days from the filing of the opinion or rendition of the judgment i'n the case within which to file a motion for rehearing supersedes the general rule as to judgments becoming final at the expiration of the term at which they are rendered. This applies only to judgments and opinions by the court in its appellate jurisdiction. In the exercise of its original jurisdiction the provisions of section 602 et seg. of the code apply.</p>

<p>1. Street Railways: Use of Streets. Where the electors of a city are invested with the power of extending to a street car company the right or privilege of entering on the streets of the city, an irregular exercise of such power will not, under all circumstances, be held void. Where the company, under the belief that it is authorized so to do under the vote of the electors, expends money in the construction of its line, considerations of public policy may require the court to protect it in the possession and use of its road so far as constructed and in operation, when its right to the uSe of the streets of the city is brought in question.</p> <p>2. -:--: License: Assignment. The right of a street car company to occupy the streets of a city with a line of street railway, granted by a vote of the electors, is, if nothing more, a license coupled with an interest, and such license is transferable.</p> <p>3. Cities: Sale of Property. A city of the class of the city of Lincoln may sell property acquired at a tax sale without first obtaining the approval of the electors of the city.</p>

<p>1. Criminal Law: Review. A judgment in a misdemeanor case rendered upon conflicting evidence -will not be reversed simply because the appellate court receives a different impression of the evidence than did the jury and trial court, but such judgment will be upheld unless we can say it is clearly wrong.</p> <p>2. -:--. The case was submitted to the jury on Friday. The next day it was announced that 'there was a chance for an agreement. The judge then told the jury that he • would soon leave and would not be back until Monday evening, and authorized them to separate only in the event they reached a verdict when the judge was absent, and to retur-n a sealed verdict Monday evening. Three hours later, and before the adjournment of the court, the- jury returned its verdict. Held, That the verdict should not be set aside.</p> <p>3. Instructions examined, and held without error.</p>

<p>Exemptions: Pleading. Under section 531f of the code, in an action by a wage-earner against a person assuming to be his creditor, who has by garnishment proceedings in a foreign jurisdiction obtained wages earned within 60 days previous to the garnishment, it is necessary to allege that the wage-earner was a resident of the state of Nebraska and entitled to the wages exempt at the time of the. garnishment.</p>

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

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

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

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

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

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

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

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

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

Original action by the state to quiet title to certain lands occupied by the soldiers and sailors home at Grand Island. Defendants demurred.

Good, Judge. The following opinion on rehearing was filed October 22, 1908. Former judgment of reversal vacated and judgment o'f district court affirmed:

<p>1. Waters: Irrigation Ditches: Exemptions. The proviso in section 1, art. Ill ch. 93a, Comp. St. 1905, that “where ditches or canals have been constructed before the passage of this act of sufficient capacity to water the land thereunder for which the water talten in such ditches is appropriated, such ditches and franchises and the land subject to be watered thereby shall be exempt from the operation of this law,” is for the benefit and protection of the owner of such land, as well as for the owners of such irrigation ditches.</p> <p>2. -: Irrigation Districts: Exemptions. In the organization of an irrigation district, the judgment 'of the county board as to those matters which are by the statute committed to its consideration, investigation and determination may not he collaterally attacked; but tbe question whether land is under a ditch already constructed of sufficient capacity to 'water the same is not by the statute left to the adjudication of the county board. The proviso in section 1, art. Ill, ch. 93a, Comp. St. 1907, expressly exempts such lands from the operation of the law.</p> <p>3- -: -: -. The provisions of sections 46 to 53, inclusive, art. Ill, ch. 93a, Comp. St. 1907, are not applicable to a case where land is, at the time of the organization of the irrigation district, under a ditch already constructed of sufficient capacity to water the same, such land being expressly exempted from the operation of said law by the proviso in section 1 of said article III.</p> <p>4. Taxation: Tender: Interest. Where a taxpayer makes a sufficient tender of payment of his general taxes, and the treasurer refuses to receive the same because said taxpayer will not also pay an invalid special tax, interest should not be charged the taxpayer in a suit brought under the scavenger law.</p>

<p>Intoxicating Liquors: Keeping for Sale: Question for Juey. The provisions of chapter 50, Comp. St. 1907, apply only to intoxicating liquors; and when a defendant charged with the offense of selling or beeping for sale without license “malt and intoxicating liquor, to wit, Malt Tonic,” introduces evidence tending to show that the liquor actually sold and kept for sale by him was not intoxicating, he is entitled to have the question whether such liquor was in fact intoxicating submitted to the jury.</p>

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

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

<p>1. Homestead, Administrator’s Sale of. A homestead of less value than $2,000 cannot be disposed of at administrator’s sale, either for the 'discharge of incumbrances thereon, or for the payment of debts against the estate of the decedent; and a sale of the homestead under a license granted by the district court purporting to authorize such a sale is absolutely void.</p> <p>2. Limitation of Actions: Sale or Homestead: Suit by Heib. The provisions of section 117, ch. 23, Comp. St. 1907, apply to irregular administrative sales, but not to sales that are absolutely void; and an action by an heir to quiet his title to the homestead of his ancestor may be maintained at any time within ten years after his right of action accrues, or the attainment of his majority.</p> <p>3. Constitutional Law: Homestead Act. Section 17 of the act of February 26, 1879 (laws 1879, p. 61), commonly called the “homestead law,” does not conflict with the provisions of the constitution, and the act as a whole is a valid exercise of legislative power.</p>

<p>Interest on Judgment. Where judgment has been entered on a penal bond given to secure the payment of money in monthly instalments, a part of which were not due at the date of the entry of the judgment, interest should not be computed on the full amount of the judgment, but only on such instalments as are not paid at maturity, and then from the date of their maturity up to the time of their payment.</p>

<p>1. Cities: Telephone Franchise: Use oe Streets. A city ordinance extending to a telephone company the right to use the streets, alleys and public grounds of the city in the construction, operation and maintenance of its plant or system, and which does not, in any of its provisions, indicate an attempt to exclude other like corporations or companies from a like privilege, is not the grant of an exclusive right or privilege.</p> <p>2. -: -: -. The authorities of a city or incorporated town or village may grant to a telephone company the use of the streets, alleys and public grounds of the municipality for constructing and maintaining a telephone system therein, such use of the streets, alleys and public grounds being for a public purpose.</p> <p>3. -: -: Added Burdens. When an ordinance of a city has invited investments and expenditures, which are made in good faith and in reliance upon it, the city authorities, if the use be a public one, cannot arbitrarily impose by subsequent regulations, without necessity or the demands of public convenience, additional burdens upon the company which are clearly beyond the reasonable exercise of the police power.</p>

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

<p>Tax Deed: Validity. A.tax deed issued to a former tenant of the premises cannot he avoided or set aside on the ground that such former tenant was indebted to the fee owner for rent which accrued during the tenancy.</p>

<p>1. Judgment: Validity: Constructive Service. A judgment rendered on service by publication against a resident of this state, on whom personal service might have been had, is absolutely void.</p> <p>2. Tax Forclosure: Sale: Redemption. A decree foreclosing a tax lien on real property was entered against the owner, a resident of the state, on service by publication. In an action to redeem from a sale made under said decree, the plaintiff was required to pay the costs of the foreclosure suit and of the sale made thereunder. Held, Error.</p>

<p>1. Note: Pledgee: Equities. A note pledged before maturity as secur- , ity for a loan made to tbe payee or owner is good in tbe bands of the transferee, who bad no notice of equities between tbe original parties.</p> <p>2. Pledge of Notes: Debts Secured. Negotiable instruments may be pledged to secure liabilities arising in the future; but to ascertain what debts are secured resort must be bad to tbe contract of the parties.</p> <p>3. -: -. A contract of pledge, which provided that certain notes were to be held as security for a certain debt, and “any other liability or liabilities due or to become due or which may hereafter be contracted,” held, under tbe circumstances of this case, not to secure the payment of moneys afterwards collected for tbe pledgee by tbe pledgor as agent and unlawfully converted by tbe latter. ..........</p>

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

<p>1. Carriers: Injury: Duty of Employees. When a passenger, a girl under 14 years of age, unaccustomed to riding upon street cars, becomes frightened and frenzied by the negligence of tbe defendant’s servants in carrying such passenger past her known destination, and the conductor knows, or by tbe exercise of due care and diligence under tbe circumstances should know, of suck passenger’s frightened and frenzied condition, and that she is about to leave the moving car, it is his duty to exercise the highest degree of care possible under the circumstances to prevent such passenger from alighting from the moving car. Chicago, B. & Q. R. Co. v. Martelle, 65 Neb. 540, examined and distinguished.</p> <p>2.-:--: -. In such a case, if the conductor fails to exercise the degree of care required of him, and the passenger in consequence of such failure receives injuries while alighting from the moving car, the street railway company is liable in damages for the resulting injuries.</p> <p>3. -: -: Instructions. In such a case, it is erroneous to instruct the jury that the plaintiff may recover, even though she was negligent in acting as she did.</p> <p>4. Instructions examined, and held prejudicial.</p>

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

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

<p>1. Constitutional Law: Clerk oe County Court: Appointment. Chapter 34, laws 1897, entitled “An act to authorize the county judge in counties where said judge has been previously authorized by the board of county commissioners to employ one or more clerks, to designate and appoint, in writing, one of said clerks to be the clerk of the county court, and prescribing the duties and compensation of the clerk of the county court,” examined, and held not in conflict with section 11, art. Ill of the constitution, providing that “no law shall be amended unless the new act contain the section or sections so amended and the section or sections so amended shall be repealed.”</p> <p>2. Judgment: Injunction: Pleading. In an action to enjoin the collection of a judgment of the county court on the ground that the judgment is void, it is necessary, in order to state- a cause of action, that the averments of the petition should affirmatively state facts which show that the judgment was void.</p>

Hostetler, Judge. The following opinion on rehearing was filed November 6, 1908. Former judgment of reversal vacated and judgment of district court affirmed:

<p>Mortgages: Foreclosure: Estoppel. WRen., in an action, to set aside a conveyance of land as Raving been fraudulently procured, the plaintiff obtains a decree in Ris favor by means.of a compromise and settlement, in which Re agrees to pay and discharge a mortgage upon the premises executed by Ris fraudulent grantee, Re is not entitled to object, in a subsequent action to foreclose that mortgage, that the same is for a sum in excess of the just indebtedness of the mortgagor to the mortgagee, or that prior to the settlement the mortgagee might have obtained a partial satisfaction from a source other than the land.</p>

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

<p>1. Cities: Implied Powers: Sidewalks. Where there is no express power granted to a city to license or regulate the business of constructing artificial stone, asphalt or other composite walks, it cannot be implied from the grant of authority to construct and repair walks of such material and in such manner as the mayor and council may deem necessary.</p> <p>2. -: Ordinances: Validity. The provisions of an ordinance to license and regulate the business of constructing artificial stone, asphalt and other composite walks examined, and found unreasonable and void.</p>

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

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

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

<p>1. Assault with Intent to Inflict Great Bodily Injury: Question for Jury. The term “great bodily injury,” as used in section 17& of the criminal code, implies an injury of a graver and more serious character than an ordinary battery; and whether a particular case is within the meaning of the statute is generally a question of fact for the jury.</p> <p>2. -: Presumptions. No wrong, however serious to the person of another, will alone warrant a conviction for an assault with intent to inflict great bodily injury; but, when the injury proved is a natural and necessary consequence of the deliberate and in- , excusable act of the accused, the presumption is that it was the result contemplated by him in the commission of the assault.</p> <p>3. --—: Intent: Evidence. It is not essential to a conviction for such offense that the accused should have intended the precise injury which followed. It is sufficient if it be shown, beyond a reasonable doubt, by the circumstances under which it was inflicted, together with its nature and extent, that great bodily injury was contemplated by the defendant when he made the • assault.</p> <p>4. -: Instructions. In a case where there is competent evidence tending to show that the defendant in mailing the assault was actuated by motives of hatred, ill will or revenge, it is proper for the court to charge the jury that: “If you should find and believe from all of the evidence, beyond a reasonable doubt, that the defendant assaulted the prosecuting witness, at a time when he had no reasonable apprehension of immediate and impending injury to himself, and to accomplish some unlawful purpose, or from a spirit of retaliation or revenge, then he cannot avail himself of the law of self-defense.”</p>

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

<p>1. Tax Deed: Setting Aside. After confirmation of a sale for delinquent taxes made under the so-called scavenger act, the deed issued to the purchaser will not be set aside on account of irregularity in. the levy of the tax, or because an item of void special tax was included in the sale.</p> <p>2. Taxation: Notice to Redeem. A fair construction of the statute requires that a separate notice to redeem from a tax sale should, when published, be given to the owner of the land sold.</p> <p>3. -: -. A notice running to several different persons, and describing different tracts in which each- had a separate interest or ownership, is not sufficient.</p>

The following opinion on rehearing was filed June 26, 1908. Judgment of affirmance vacated and judgment of district court reversed:

<p>Appeal from the district court for Merrick county: Conrad Hollenbeck, Judge.</p> <p>The following opinion on motion for rehearing was filed June 4, 1908. Rehearing denied:</p>

<p>1. Cities: Contracts: Validity. Where a municipal corporation enters into a contract which, under the existing law, it was authorized to make, but where the procedure laid down by the statute was not followed, the contract is not ultra vires, but irregular, and the contractor or his assignee may maintain an action to recover a remainder due upon such contract.</p> <p>2. Limitation of Actions: Acknowledgment of Debt. A warrant issued by the proper authorities of the city in consideration of a valid indebtedness against it is a written acknowledgment of such indebtedness and a promise to pay, and arrests the running of the statute of limitations.</p>

<p>1. Sales: Rescission. “A harvesting machine was sold under a warranty which provided that ‘if it could not he made to work well it would be taken hack if returned immediately to the agent of whom purchased and the cash payment refunded and the notes given therefor returned.’ Held, That after the purchaser had used the machine a part of two harvests he could not rescind the contract, even though the machine failed to comply with the war: ranty.” Otarlo v. Deering <G Go., 29 Neb. 293, reaffirmed.</p> <p>2. Evidence examined, and held to fully sustain the findings and judgment of the district court.</p>

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

<p>Statutes: Validity. When the legislative journals show affirmatively that a hill which has passed one house has been amended in-the other before final passage thereby, and that such amendments have not been concurred i'n by the house in which the measure originated, and also show affirmatively that such amendments Raye not been receded from with the assent of a majority of all - the members elected to the house by which they were made, the bill is void as a measure of legislation.</p>

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

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

<p>1. Criminal Law: Preliminary Examination: Finding. A complaint was filed Before an examining magistrate charging plaintiff in error with maliciously killing and destroying 14 certain hogs of the value of $120, the personal property of a person named in the complaint as the owner thereof. A warrant was issued, plaintiff in error was arrested, and an examination had, in which he was held to appear at the next term of the district court. He gave the required recognizance, and was discharged from custody. In the docket entry of the examining magistrate a history of the case was given, and it was recited that, “after hearing the testimony of the witnesses, and being fully advised in the premises, the court finds that there is probable cause to believe that the defendant is guilty as charged in the complaint. It is therefore considered by me that the defendant give bond in the sum of $500. for his appearance” at the next term of the district court, etc. Held, That this sufficiently showed that the magistrate found thal an offense had been committed.</p> <p>2. .-: VERDICT: Review. Upon the trial there was a sharp conflict between the testimony of the witnesses for the state and those on behalf of the defense. If the jury believed the witnesses produced by the state there was sufficient evidence to sustain a verdict finding the accused guilty. They being the sole judges of the weight of the evidence, their finding cannot be molested:</p> <p>3. -: Information: Variance. The information charged the malicious killing and destruction of 14 certain hogs of the value of $120, the offense charged to have been committed on the 5th day of May, 1906. The evidence tended to show that 5 hogs were killed on the 23d day of April, 1906, the value of which was found to be $44.17, the offense proven being identified as the one charged in the information. Held, That the verdict responded to the charge in the information.</p> <p>4. -: Evidence of Value. There was a conflict in the evidence as to the size and weight of the hogs alleged to have been killed and destroyed. A witness, a dealer in live stock, was called by the prosecution and asked as to the value of the hogs on the date of the alleged offense, specific weights being given in the question and which corresponded with the weights testified to by some of the witnesses. The answer of the witness was given stating the value to be a certain price per hundredweight, leaving the jury to decide as to the weight of the hogs. Held, No error.</p> <p>5. -: Malice: Question eor Jury. The question as to whether the acts charged, if committed, were maliciously done was one of fact for the jury to decide from all the evidence upon that part * of the case.</p> <p>6- -: Instructions: Review. In order to obtain a review of instructions given to a trial jury by the court, it is necessary that the record show that exceptions were taken to the instructions of which complaint is made.</p>

<p>1. Constitutional Law: Taxation. An act for levying taxes and providing the means of enforcement is within the unquestionable power of the legislature.</p> <p>2. Due process of law does not necessarily require a judicial hearing in matters of taxation.</p>

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

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

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

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

<p>1. Master and Servant: Injury: Appliances. The law requires a master to use reasonable care to provide reasonably safe tools and appliances with which, and a reasonably safe place in which, his servant is to perform the duties assigned him.</p> <p>2. -: Negligence: Question for Jury. Whether or not a master who requires his servant to stand upon two parallel, horizontal, iron rods 12 inches apart and about 8 feet above the floor, and to draw, by means of an iron hooli, a slide weighing 200 pounds, without providing any railing, or other safeguard, to prevent the servant from falling in the event of his losing his footing, or the hook slipping from the slot in the slide, is guilty of negligence in failing to exercise reasonable care to provide a reasonably safe place for the servant to work is a question of fact for a jury to determine.</p> <p>3.-: -: -. Whether or not a master, who furnishes a hook, consisting of an iron bar with a hand-hold at one end, and two inches at the other bent at a right angle to the bar, so as to form an elbow to be inserted into a slot, with which to draw a slide weighing 200 pounds, instead of having the elbow of the hook bent at an acute angle to the bar, or in a curve, so as to prevent its slipping out of the slot in the slide, is guilty of negligence in not exercising reasonable care to provide reasonably safe appliances for his servant is a question of fact for a jury to determine.</p> <p>4. -: Assumption on Risk. A servant has a right to assume that his master has used due diligence in providing reasonably safe appliances with which, and a reasonably safe place in which, the servant is to perform his duties, and does not assume the risk of danger arising from the master’s negligence in that respect, unless the servant knows and realizes such risk of danger.</p>

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

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

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

<p>1. Appeal: Verdict: Evidence. The verdict of tlie jury should not he set aside as being contrary to the instructions of the court, -where the evidence does not establish the fact submitted so clearly that it should, have been determined by the court as a matter of law.</p> <p>2. -:--: -• While the verdict of a jury should be set aside if contrary to an erroneous instruction of the court, this court is not bound by the theory of such erroneous instruction in determining whether the misconduct of a member of the jury constitutes prejudicial error.</p>

<p>1. Appeal: Dismissal. Where the appeal of the original appellant, properly taken from a decree in equity, necessarily determines all of the questions presented by the record and disposes of the case on its merits, a motion to dismiss as to other appellants will not be considered.</p> <p>County Board: Beidses: Conteacts. Under the statute authorizing the county board to make yearly contracts for the construction of all bridges, such contracts may not be made for a shorter period than one year; nor may the county board evade the provisions of the statute by terminating before its expiration a contract made for one year.</p> <p>--: -: -. Where the county board has a yearly contract for the construction of all bridges in the county, it may not make another to take effect before the expiration of the first; but it may, if the occasion for building a bridge arises during the life of the yearly contract, require it to be done thereunder, even though the same cannot be completed within the term thereof.</p> <p>4. -: -: -: Damages. Where a county board has entered into a contract for the construction of bridges for the period of one year, and before the expiration thereof attempts to supersede' the same with a contract much less favorable to the county, damages to the taxpayers will be presumed.</p> <p>5. Appeal: Pleadings. This court will not consider on appeal facts not presented by’the pleadings.</p>

<p>Eiffioxt to -tlie district court for Scott’s Bluff county: I-Ianson M. G-kimes, Judge.</p>

<p>1. Criminal Law: Variance. A party charged as a principal cannot be convicted upon evidence tending only to show that he was an accessory.</p> <p>2. -: Accessory. One who advises others to commit larceny, but who is several miles distant at the time of the commission of the offense, and who takes no part therein, but assists in the disposal of the proceeds after the theft has been fully committed, is not a principal, but an accessory.</p>

<p>1. Abatement and Revival: Parties. Where the transfer of the subject of an action is made by the plaintiff during its pendency, the action may be prosecuted for the benefit of the assignee in the name of the original plaintiff, such- party remaining in esse.</p> <p>2. -: -. The insolvency Of, and the appointment of a receiver for, the original plaintiff, who has assigned the cause of action prior to the appointment of a receiver and since the action was begun, does not prevent the prosecution of the action in the name of the original plaintiff.</p> <p>3. Action: Joinder. An action to foreclose a mortgage cannot, against objections made by the defendant, be joined with an action to obtain a money judgment upon a note not secured by the mortgage.</p> <p>4. Pleading: Misjoinder: Dismissal. In case of misjoinder of two causes of action in the same petition, the plaintiff may dismiss one of such causes of action and proceed to trial upon the other.</p>

<p>Contribution: Trespass. One who sues for contribution on the ground that he has satisfied a judgment for a trespass committed against a third party must show that the defendant joined in committing the trespass and was liable therefor equally with the plaintiff.</p>

<p>1. Licenses: Injunction. In 1904 the city of Lexington passed an ordinance imposing an occupation tax on the business of keeping billiard and pool halls. On May 26, 1906, a second ordinance went into effect requiring the keeper of billiard and pool halls and bowling alleys to apply to the mayor and city council for a license to conduct the business. Held, That a party who had paid the occupation tax required by the ordinance of 1904, prior to the ordinance of 1906 going into effect, was not entitled to an injunction to restrain the officers of the city from prosecuting him for conducting his business without a license.</p> <p>2. Cities: Ordinances: Validity. The motive governing a legislative body in passing a statute or ordinance is not a proper subject for investigation by the courts.</p>

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

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

<p>Appeal from the district court for Dodge county: Jame? Gf. Reeder, Judge.</p> <p>The following opinion on rehearing was filed July 17, 1908. Former judgment of affirmance adhered to:</p>

<p>1. Judgment: Revivor. Section 462 of the code is applicable to the revival of a dormant judgment, and authorizes the revival of such a judgment against a nonresident upon service by publication.</p> <p>2. -: -: Constitutional Law. Section 462 of the code, . authorizing the revival of a dormant judgment upon service by publication, is not repugnant to either the state or federal constitutions.</p>

<p>1. County Judges: Bonds: Liabiity oe Sureties. Sureties on the official bond of a county judge are not liable for money which did not come to the possession of their principal by virtue of his office.</p> <p>2.-: -: -. Where a couhty judge receives and takes possession of personal property belonging to the estate of a deceased person prior to the appointment of an administrator, his act in receiving and taking possession of the personal property is not done or performed by virtue of his office; and the sureties upon his official bond are not liable if their principal subsequently converts the property so received ahd taken to his own use.</p>

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

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

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

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

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

<p>1. Second Appeal: Law of Case. The decision of this court upon a former hearing of the same case is controlling only as to the actual point then determined.</p> <p>2. Trial: Negligence: Question fob Juby. Where the existence of a state of facts is undisputed, and where from such facts different minds might honestly draw different conclusions as to whether or not such' facts established negligence, the question is for the jury to determine.</p> <p>3. Railroads: Injury at Crossing. A traveler hy wagon approaching a point where it will he necessary to cross a railroad track laid in a public street has a right to anticipate that trains upon such track will he operated according to law, and without negligence on the part of the railroad company.</p> <p>4.-: Stbeet Crossings. A railroad company operating a train upon a city street, used in common by it and by pedestrians and vehicles, may be required to take precautions against collisions which are not necessary when it is operating trains upon its own right of way.</p> <p>5. Evidence examined, and found to present questions proper to be submitted to the jury.</p>

<p>1. Evidence: Opirtors of Witness. Where it is claimed that the construction of a dam has caused the hed of a river to fill in with silt and the water of the river to hack up, so as to interfere with the operation of a water-wheel, a question calling for the opinion of the witness upon the very matter in issue is improper, and the answer thereto should be excluded.</p> <p>2. -: Damages. Where one claims his property has been damaged by certain acts of the defendant, it is not proper to ask the witness in what manner he has been damaged, but he should state the facts, and the jury will then in the exercise of its functions find whether the litigant has been damaged.</p> <p>3. Evidence examined, and field to entitle appellees to an injunction against appellant.</p>

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

<p>1. Criminal Law: Instructions. Instructions must be predicated on the evidence; and in the prosecution of a bank officer for embezzlement it is error to submit to the jury the fact of his having overdrawn an account with the bank as proof of guilt, ■ unless the evidence is sufficient to establish every element necessary to make the transaction criminal in its nature.</p> <p>2. -: -: Burden oe Proof. In a criminal prosecution the burden is upon the state to establish every element of the crime charged beyond a reasonable doubt; and an instruction which shifts the burden of proof to the defendant, and informs the jury that the evidence must show beyond- a reasonable doubt that the defendant in doing the act complained of acted in good faith, and was not actuated by improper motives, is erroneous.</p> <p>3.-: Evidence. Under an indictment charging a bank officer with embezzling its funds on a certain date, evidence tending to show embezzlement of different amounts at different times before that date, and the manner in which he conducted the business of the hank, is admissible for the purpose of assisting the jury in determining the defendant’s guilt or innocence of the charge set forth in the indictment.</p> <p>4. Embezzlement: Indictment. An indictment for embezzlement is sufficient if it sets forth the crime in language equivalent to that contained in the statute creating and defining that crime, without averring the particular acts in which the offense consists.</p>

Original action by the state to enjoin defendant from putting into effect charges or rates other than those established by law. Defendant filed plea in abatement.

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

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