Volume 81 — Nebraska Reports

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

<p>Mortgages: Assumption by Grantee: Foreclosure: Deficiency Judgment. Several persons, joint owners of two lots in the city of Omaha incumbered by a mortgage, feared a loss of the property because of inability to pay interest due thereon. The property was worth $12,000, and they sold the same to the defendant for $10,000; the deed reciting that the conveyance was made subject to the mortgage, which the grantee assumed and agreed to pay. The 'negotiations for the sale were conducted by S. as agent for the defendant, and defendant took no part therein, and claims to have had no knowledge of the assumption clause in his deed until long after the same had been delivered to his agent and recorded, and until after he had sold the property. Shortly after the making of the deed defendant’s agent called on the agent of the mortgagee and requested him to accept defendant’s note for past due interest on the mortgage, saying that defendant had purchased the property and was to take care of the mortgage. This proposition was rejected by mortgagee’s agent, and shortly thereafter defendant himself called on the agent, and paid the interest. Within about six weeks after the -purchase of the property defendant sold it to Mrs. H., and in his deed of conveyance a clause was inserted by the terms of which Mrs. H. assumed and agreed to pay the mortgage. Some time thereafter the mortgage was foreclosed, and on motion for a deficiency judgment against the defendant he resisted upon the ground that the assumption clause in his deed was inserted by mistake, that his agent in the purchase had no authority to so contract, and that no consideration existed for his agreement to assume and pay the mortgage. S., the agent, corroborated him in this claim. Held, That the action of the district court in entering ju-dgmenl against the defendant for the deficiency was in accord with the circumstances shown and the evidence given on the hearing.</p>

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

<p>1. Commerce: Railroads: Regulation. While interstate commerce and the instrumentalities by which it is carried on is within the exclusive control of the federal congress, the domestic commerce of a state and the facilities by which it is conducted is within the control of the state, and the legislature of the state may make such reasonable rules and regulations governing its domestic commerce and the instrumentalities by which it is conducted as seem best fitted to advance the interest and convenience of its citizens, provided such regulation does not directly burden or interfere with the interstate commerce of the nation.</p> <p>2. -: Interstate. Produce does not become a matter of interstate commerce until delivered to the carrier to be transported out of the state to the state of its destination, or has started on its ultimate transportation to that state.</p> <p>3. Constitutional Law. Section 1, ch. 105, laws 1905, is not subject to the objection of being special or class legislation.</p> <p>4. -. This law referred to in the last preceding paragraph of this syllabus is not objectionable as allowing the taking or damaging of private property without just compensation, or as depriving the citizen of his property without due process of law.</p>

<p>1. Statutes: Repeal. Repeals by implication are not favored, and, when two statutes dealing witli the same or similar subjects do not conflict one with the other, the later statute will not work a repeal of the earlier one.</p> <p>2. -: -. Chapter 59, laws 1905, known as the “Juvenile Court Bill,” held not to repeal chapter 36, laws 1897.</p>

<p>1. Executors and Administrators: Allowance to AVidow: Appeal. An appeal lies from the judgment of the probate court granting or refusing an allowance to the widow out of the estate of her deceased husband.</p> <p>2. Dower: Bar. Antenuptial contracts were void at common law, and did not constitute a bar to dower.</p> <p>3. -: -. The provisions of the statute that a jointure is a bar of dower do not ordinarily deprive the intended wife of the power to bar her dower by any other form of antenuptial contract.</p> <p>4. -: -. The first paragraph of the syllabus in Fellers v. Fellers, 54 Neb. 694, disapproved.</p> <p>5. -: -. An antenuptial contract, in consideration of marriage and the release by each party of all interest in the property of the other, is based upon a sufficient consideration as to both parties, when each is the owner of property in which the other would acquire an interest by reason of the marridge but for the antenupLial agreement, and is sufficient, when equitable anu. fair in its terms a'nd entered into in good faith, to constitute an equitable bar to dower.</p> <p>0. Aiucuuptiai contracts between persons contemplating matrimony, determining the prospective rights of each in the property of both parties during and after marriage, are not against public policy and are enforceable.</p> <p>7. Executors and Administrators: Antenuptial Contracts: Bab to Widow’s Allowance. An antenuptial contract made in good faith between parties, each of whom owned real and personal property not disproportionate in value, providing that in consideration of marriage each party thereto waived and released and forever quitclaimed and renounced all dower and other interest in and to the real estate and personal property which the other party had or should thereafter acquire; the expressed intention being- that all the property of each should descend to his or 'her lawful heirs, released and divested of all claims of dower, curtesy, or other interest that the other contracting party might have as husband or wife, widower or widow, under the laws of the state of Nebraska, held sufficient to bar the widow’s statutory allowance; the rights of children not being involved.</p> <p>S. Husband and Wife: Antenuptial Contract. Whether such ante-nuptial contract bars the widow’s life estate in the homestead of her deceased husband is not here determined. If ineffectual for that purpose, the contract would not thereby be rendered void in toto.</p>

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

Original application for writ of mandamus to compel respondent to file with relators all freight schedules, classifications, rates, tariffs and charges used by respondent.

<p>Taxation: Assessment. For the purpose of arriving at his net credits required to be listed for assessment and taxation, a taxpayer is not permitted to deduct from his gross credits an alleged item of indebtedness that exists merely as a convenience in bookkeeping, and of which he is both payer and payee. It is only a dona fide indebtedness to another that he may deduct.</p>

<p>1. Intervention: Laches. Section 901 of the code does not authorize a party to intervene after trial has commenced in a pending suit, if prior to the commencement of the trial he had the opportunity to intervene and lost it hy his laches. Said section applies only where no remedy is afforded hy the code, and not where the code afforded a remedy which has been lost by laches.</p> <p>2. Bankruptcy: 'Fraudulent Conveyances: Pleadinq. In an action by a trustee in bankruptcy to reach real estate alleged to have been fraudulently aliened by the bankrupt, it is necessary for the trustee to allege that the assets of the bankrupt estate in his hands are insufficient to discharge the liabilities of the bankrupt estate.</p> <p>3. -: -: -. Where a judgment creditor of a bankrupt has, in a creditors’ suit, obtained a decree setting aside as fraudulent a conveyance of real estate made by the bankrupt to his son, and the trustee in bankruptcy files a petition to intervene and claim the surplus proceeds of the sale of the real estate after the satisfaction of the judgment creditor’s claim, it is necessary for the trustee to allege facts showing that the transfer of the real estate was fraudulent as to the creditors whom he represents.</p>

<p>1. Adverse Possession: Tacking. Where the owner of land, claiming adverse possession of a narrow strip adjoining same, conveys said land to a third party by a deed which does not describe the adjoining strip, simultaneously talcing hack a lease and remaining in possession of the whole until he afterwards secures a reconveyance of the land so conveyed by him, the question of whether or not the successive grantees could tack their possession to that of their grantors for the purpose of completing title by adverse possession does not arise.</p> <p>2. -: Presumptions: Evidence. While the calls of a deed limit the right as a presumption of fact of a party in possession of land outside of but adjacent to land within the calls of his deed to the calls of said deed, such presumption, like any other presumption of fact, yields to proof of actual facts which negative and overcome such presumption. It is the facts, when established, that govern.</p> <p>3. -: -: -. The rule sometimes announced that the adverse possession of land cannot he extended beyond the calls of the deed means that possession by construction cannot he extended beyond the calls of the written instrument by virtue thereof; hut, if land be actually occupied beyond the calls of the deed, hostile to the true owner, the written instrument does not preclude such occupancy from being adverse. The occupancy does not refer to the' deed, hut to the fact itself and its hostile character.</p> <p>4. Quieting Title: Vendor and Purchaser. Where one who occupies land as owner in fee simple, also occupies a strip of land adjoining same, of which he has become owner by adverse possession. conveys said land by general description, without describing tbe adjoining strip, and at tbe same time and as a part of tbe samé transaction delivers to bis grantee possession of tbe whole tract, both grantor and grantee believing that such strip is included in tbe calls of said deed, the grantee thereby becomes the actual owner of the whole tract, a'nd entitled to have his title quieted as against both his grantor and the owner of the fee of such strip.</p>

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

<p>1. Appeal: Verdict: Evidence. Where the judge of a district court, who has had the advantage of seeing the witnesses and observing •their demeanor while testifying, overrules a motion for. a directed verdict, and there is sufficient competent evidence in the record, standing alone, to sustain the verdict returned by the jury, this court will not disturb such a verdict and reverse a judgment rendered thereon, even though the evidence in opposition to the verdict is such, as shown by the record, that a peremptory instruction might have been sustained.</p> <p>2. Executors and Administrators: Claims Against Estate: Evidence. Where a person, by deed, shortly before his death conveys all of his .lands to a third party for a nominal consideration, which deed is withheld from record until after the death of such person, and, after his death, an unsecujjgd claim for a large amount is filed against his estate, and it appears from the testimony of the surviving wife of such deceased person that she, at least, joined in said deed on account of rumors which she and her deceased hushand had heard in relation to said claim, such deed is proper evidence, and it is error to exclude it.</p> <p>3. Appeal: Admission of Evidence. Counsel should not he permitted, in the face of proper objections, to get before a jury improper evidence, and then escape the consequences of their action by consenting that it be stricken from the record.</p> <p>4. -: ■- — . In such case, if the evidence is of such a character, under the particular circumstances of the case, that it may have affected the verdict, the error cannot be disregarded. Missouri P. R. Go. v. Fox, 60 Neb. 531, and cases there cited, distinguished.</p> <p>5. Executors and Administrators: Claims Against Estate: Evidence. While, under particular circumstances which may arise on the trial in the district court of a claim against a decedent’s estate which has been appealed to said court, it may be proper to permit evidence of the date when such claim was filed in the probate court and the last date for filing claims, it is not proper to submit to the jury copies of the proceedings in said court.</p> <p>6. Trial: Argument of Counsel. It is not reversible error for the district court to refuse to permit counsel, when addressing the jury, to discuss immaterial evidence.</p> <p>7. Notes: Delivery. In a suit upon a promissory note, where the plaintiff has possession of the note, produces it upon the trial, and it is received in evidence, such facts make a prima facie ease of due delivery, of the note.</p> <p>8. Venue, Change of. “When it shall be made to appear to a district court that a fair and impartial trial of a cause cannot be had in the county where brought, then such court has not only the discretion, but it is its duty, to send the cause to some adjoining county for trial.” Omaha S. R. Go. v. Todd, 39 Neb. 818, followed.</p> <p>9.-; -. And in such case the court is not limited to the adjoining county, hut where the showing is equally or sufficiently strong as to an adjoining county the case should be sent to some county where the alleged prejudice does not exist.</p>

Original application for a writ of mandamus to compel respondent, as secretary of state, to receive 400 copies of Annotated Statutes of Nebraska, as required by law.

<p>Appeal from the district court for Hitchcock county: Robert 0. Orr, Judge.</p>

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

<p>1. Criminal Law: Accomplice. The keeper of a house of prostitution who enters into a corrupt criminal agreement with a public officer to pay, and does pay, to him certain sums of money at stipulated times, as a consideration for the privilege of carrying on her unlawful business and selling liquor without a license, is an accomplice in crime within the meaning of the law, and on the trial of the officer for that offense it is not error to so instruct the jury.</p> <p>2. —:—r: Evidence. On the trial of such officer charged with having entered into a conspiracy to obtain money from a keeper of a house of prostitution as a consideration f<?r allowing her to carry-on her unlawful occupation, and with having for several months received from her the sum of $50 each month for that purpose, proof of payments of other sums of inoney to the defendant at or about the same dates, under like agreements by other persons engaged in the same unlawful occupation, may be received for the purpose of corroborating the principal witness upon the material facts of the transaction as alleged in the information.</p>

Original application for a writ of mandamus to comped respondents, as the state board of equalization and assessment, to convene and make and record special findings in the valuation and assessment of relator’s property for taxation, and to allow relator’s exceptions thereto.

<p>1. Criminal Law: Defense of Insanity: Instructions. In the trial of a person charged with the crime of murder in the first degree, the defense of insanity having been presented by the evidence, held not to be reversible error for the court to instruct the jury, among other things, that when the defendant has introduced evidence as to his mental condition sufficient to raise a doubt as to his sanity, which the law presumes, then it was incumbent upon the state to overcome such doubt, and to establish by evidence, beyond a reasonable doubt, that the defendant was sane at the time of the commission of the acts charged, as the instruction, when considered with others, did not place the burden of proving his insanity upon the accused.</p> <p>2. -: —:—: -. In a case where such facts claimed by the defense rendered the instruction applicable to them, it was not error for the court to instruct the jury that, if the accused was, at the time of the alleged criminal act, laboring under an aberration of mind to such a degree that he was unconscious of his acts, so much so that his intellectual powers were obliterated to that extent that he had no will, no purpose, no consciousness of right or wrong, he should be acquitted; the claim and testimony of the accused being that he was unconscious of his act, and had no recollection of the occurrence.</p> <p>3. -: -. Instruction number 17, being a copy of instruction number 10 set out in Oarleton v. State, 43 Neb. 373, 410, is approved, when considered in connection with the other instructions given.</p> <p>4. Homicide: Defenses. Where a mortal wound is unlawfully inflicted by one person upon another under such circumstances that, if death had immediately ensued, it would have been a felonious homicide, the fact that other causes, such as errors or accidents in the treatment of the victim, may have contributed to or hastened death, will not relieve the accused from the criminality of his act; the real cause of the death being the felonious assault.</p> <p>5. Criminal law: Hypothetical Questions. In propounding hypothetical questions to expert witnesses, it is allowable for each party to the controversy to submit such questions upon the theory of the cáse contended for by the side propounding them. A' question is not improper simply because it includes only a part of the facts testified to. If facts are testified to which are not believed to be true, or wvhich are believed to be immaterial to the issue, there is no rule of law requiring that they be included in the question.</p> <p>6. -: Misconduct of Attobney: Review. Where it is claimed that an attorney is guilty of misconduct in arguing a case to a jury, and it is desired to raise a question on that point for decision in the supreme court, it is necessary that objection be made to the trial court at the time, and an adverse ruling had thereon, and an exception thereto, and that the same be made a part of the record by a proper bill of exceptions.</p> <p>7. -- — : Impeachment of Vekdict. Affidavits of jurors-may not be received for the purpose of impeaching a verdict rendered by them, where the facts stated by the affidavits are such as inhere in the verdict, such as that the jury misunderstood or did not rightly comprehend the instructions of the court.</p> <p>8. -: Instructions. Where other instructions to the trial jury fully covered the law upon every feature of the case, including the law of insanity, reasonable doubt, etc., and an instruction is given covering the physical facts in the case, and stating that, if they are established beyond a reasonable doubt, the defendant would be guilty of murder or manslaughter “according to the evidence as explained in these instructions proves the one or the other,” held not erroneous as withdrawing other questions and defenses from the jury.</p> <p>9. -: -: Sanity of Accused: Review. The question of the sanity of the accused having depended upon conflicting evidence submitted to the jury, under proper instructions, the verdict of the jury must be taken as decisive of the question, so far as the reversal of the judgment is concerned.</p> <p>10. -: -. While not always calling for a reversal of a judgment, the incorporation of sayings of law writers, not containing statements of legal principles, into instructions, cannot be approved.</p> <p>11.-: New Trial. “It is a general rule, applicable in capital as well as in other cases, that a new trial will not be granted on the ground of newly discovered evidence where such evidence would be cumulative merely.” St. Louts v. State, 8 Neb. 405.</p>

<p>Quieting Title: Limitation of Actions. One Brandenbury preempted government land, made final proof before the clerk of the district court November 5, 1885, but such proof and the money to pay for the land was not filed in the local land office until January 5, 1S86, when a final receipt was issued and delivered to him. At the time of filing his proof Brandenbury filed an affidavit, of date December 16, 1885, that he had not alienated the land. This affidavit was probably overlooked by the officers of the general land office, as they notified the local office in August, 1889, to require Brandenbury to furnish proof of nonalienation between the date of making final proof and the date of his final receipt. It is claimed that Brandenbury never received the notice issued by the local office, and in January, 1890, Brandenbury’s entry was canceled by the general land office. September 13, 1894, George 0. Lovejoy entered the land as a homestead, made final proof, and received his final receipts October 25, 1889, and a patent for the land March 26, 1900. He died in September, 1900, and his father and only heir at law took and held possession. On February 11, 1905, the plaintiff, claiming title to the land through foreclosure of a mortgage made by Brandenbury after receiving his final receipt, brought an action to quiet its title. Held, That,, if Brandenbury, after receiving his final receipt, held title to the land, he and his mortgagee were in position to maintain an action for possession or to quiet title at any time since September,- 1894, when Lovejoy entered the same as a homestead, and the action is barred by limitation; that, if his final receipt did not vest him with title to the land, the land department had jurisdiction to cancel his entry, and relief should have been asked from that department after Lovejoy’s entry on the land.</p>

<p>1. Constitutional Law: Due Process oe Law. Section 1, ch. 105, laws 1905, is not subject to the objection of being special legislation, or of allowing the taking of private property without just compensation, or of depriving the citizen of his property without due process of law. State v. Missouri P. B. Oo., ante, p. 15.</p> <p>2. Railroads: Courts: Jurisdiction. In consideration of the franchises that they receive from the state, railroad companies agree to perform certain duties toward the public, and the power of determining those duties and enforcing their performance is vested in the courts of the state.</p> <p>3. -: State Control. To deny to the state the power to require the erection of depots, the construction of side-tracks, and such other facilities as the public necessities require, would enable railway companies to create a monopoly in handling the products of the country adjacent to their lines, and to turn it over to whomever they chose. *</p>

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

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

<p>Insane Persons: Guardianship: Appeal. The heirs apparent or presumptive, or those dependent upon an alleged incompetent person for support, may appeal from an order of the county court dismissing their petition for the appointment of a guardian for such incompetent.</p>

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

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

<p>1. Taxation: Assessment. “Tie word credits as used in section 28, art. I, ch. 77, Comp. St. 1903, means net credits. The indebtedness of the taxpayer may be deducted from gross credits to find the true value of credits for assessment.” Lancaster County v. McDonald, 73 Neb. 453.</p> <p>2. -: —■-. A note and mortgage taken in exchange for property is not “money loaned and invested” within the meaning of the statute, but is a “credit” from which the holder may deduct the just debts toy him owing at the time of making his tax return.</p>

<p>Appeal from tbe district court for Gage county: Wil-' liam H. Kelligar, Judge.</p>

<p>1. Intoxicating Liquors: Action: Parties. Where damages are sus- ■ tained by an individual in consequence of the liquor traffic, under the provisions of sections 15-18, ch. 50, Comp. St. 1907, the action is properly brought by the party or parties entitled to such damages.</p> <p>± -: -: Wages oe Minor. The wages which a son would have earned during his minority would have belonged to his father, and he therefore suffers a direct pecuniary loss by death of his son.</p> <p>3. -: -: Damages. There is no ground for restricting the right of recovery in actions brought under the law governing the sale of intoxicating liquors where death results within narrower limits than actions brought under Lord Campbell’s act; and, while loss of means oí support is a pecuniary injury, it is not the only damage for wliioh a recovery may be had in such actions.</p>

<p>1. Death: Parties to Actions. Where the right to maintain an action for injuries resulting in death depends upon the provisions of Lord Campbell’s act (Comp. St. 1905, ch. 21), such action must be brought in the name of the. administrator.</p> <p>2. Intoxicating Liquors: Action: Parties. Damages sustained by an individual in consequence of the liquor traffic are, under the provisions of section 15, ch. 50, Comp. St. 1907, recoverable notwithstanding that death follows the injury; and this without the aid of Lord Campbell’s act. Such action is properly brought by the party or parties entitled to such damages, and is not maintainable by the personal representative of the deceased. Roose v. Perkins, 9 Neb. 304; Gran v. Houston, 45 Neb. 813; Fitzgerald v. Donoher, 48 Neb. 852, followed.</p> <p>3. Courts: Procedure. Where a rule relating to a matter of form and procedure, and not affecting a substantive right, has been adopted in former decisions of this court,. and appears to be salutary in its operation, it should be followed.</p>

<p>1. Taxation: Foreclosure oe Tax Lien: Judgment: Collateral Attack. Under the revenue law in force in 1901, a petition by a county to foreclose a tax lien, which fails to allege an antecedent sale for taxes by the county treasurer, does not state a cause of action, but the judgment rendered thereon is not void, and the charge in the petition collaterally attacking the same that the party claiming under such judgment knew there had not been an antecedent sale does not make such case an exception to the rule.</p> <p>2. Judgment, Vacating: Showins. Where the affidavit required by section 82 , of the code is in the form of a petition verified by the attorney of a nonresident defendant who deposes that he believes the facts stated in the petition are true, it is insufficient, especially where it fails to show that the attorney had personal knowledge of the fact that the defendant did not have notice of the pendency of the action in time to appear and defend.</p>

<p>1. Judges: Disqualification: Judgment: Collateral Attack. A district judge is disqualified from making an order confirming a judicial sale in an action which he commenced and prosecuted to judgment as attorney for the plaintiff, and, where the fact of such disqualification appears upon the record, the order of confirmation made by the judge so disqualified is void, and may he collaterally attacked.</p> <p>2. Judicial Sales: Confirmation. An order confirming a judicial sale is a judicial, and not a ministerial, act.</p> <p>3. Judgment: Suit to Vacate: Pleading. . In an action to set aside a sheriffs deed upon the ground that the order confirming the sale which it was executed to carry out was made by the judge disqualified to act, ah allegation that the plaintiffs are the owners in fee simple of the land in question is a sufficient plea of' ownership, when the petition is attacked by a general demurrer.</p>

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

<p>1, Criminal Law: Instructions. When his attention is called to that point, it is the duty of a trial judge, in a criminal case, to instruct the jury concerning the presumption of innocence to which the defendant is entitled, and he is not excused from so doing because an instruction presented by the defendant is improper in form. In such case he should modify the instruction by eliminating the objectionable portion thereof, or prepare and submit to the jury a proper instruction on his own motion.</p> <p>2.-: -. If, in a criminal case, the trial judge gives the jury an instruction which is technically correct, but couched in terms which in the opinion of counsel for the defendant are liable to be misunderstood or misapplied by the jury, it is the duty of such counsel to call the attention of the court to the supposed defect and present a suitable instruction. -In default of his so doing the defendant cannot complain of the defect.</p> <p>3. -: Information: Several Counts: Sentence. Where the different counts in an information charge the same offense, in case of a conviction on each count the rule is to render a single sentence upon"all the counts for the one entire offense.</p> <p>4. Intoxicating Liquors: Information: Evidence: Variance. In an information charging the unlawful sale of - intoxicating liquors, a count alleging a joint sale to two persons named is not sustained by evidence showing separate sales to each of them.</p>

<p>1. Appeal: Motion eor New Trial: Review. Where special findings are in irreconcilable conflict with a general verdict, the party-relying upon that verdict may, during the U m, and within three days of the return of those findings, move the court to vacate the special findings, and for judgment on the general verdict, and, upon the overruling of his motion and the entry of a judgment on the special findings, may, within three days, and during the term, move the court to vacate the last recited order, and thereby entitle himself to a review in this court of all the questions presented to the trial court in his motion to set aside the special findings, and this independent of whether or not the last motion was filed within three days of the return of the verdict.</p> <p>2. Judgment: Revivor: Plea oe Payment. In a proceeding to revive a dormant judgment, where the judgment debtor pleads payment, a presumption of payment arises, and the burden is upon the judgment creditor to rebut that inference.</p> <p>3. -: -: -. Unless some witness having knowledge of the fact testifies to the nonpayment of the dormant judgment, then it is incumbent on the judgment creditor to rebut that presumption by proof of some fact or circumstance, the legitimate tendency of which is to make it more probable than other- . wise that payment has not in fact been made.</p> <p>4. Evidence in this case examined, and ■ held not to repel the presumption that the judgment has been paid.</p>

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

<p>1. Pleading: Name op Plaintiff. In an action on account, the plaintiff should sue in his Christian name. .</p> <p>2. -: Objections to Evidence. In an action on account, defendant cannot, by objecting to the introduction of evidence, take advantage of the fact that plaintiff has not set out in the petition tiff should sue in his Christian name.</p> <p>3. Sales: Warranty. If posts are sold by a particular description, such description is part' of the contract of sale, and does not •onstitute an implied warranty of quality.</p> <p>4. -: Waiver. E. purchased from P. a. car-load of lime, plaster and cement, and paid therefor about six weeks after its receipt. Thereafter E. ordered a car-load of cedar posts from P., giving in his order the numbers and dimensions of the posts desired. A car loaded with posts varying somewhat in size and number from the order was delivered by B. to E., who received the same without objections, and sold the greater part thereof, making no complaint to P. that the posts did not comply with the specifications in the order. About 50 days after the receipt of the posts E. claimed to P. there was a deficiency in number and dimensions of the posts, and, after P. placed his account against E. in the hands of an attorney for collection, E. also made claim that the lime purchased was inferior in quality. Hela, E. had waived the right to object to the quality of the lime, or that the posts in the car were deficient in dimensions or not equal in number of the invoice thereof.</p> <p>5. Trial: Directing Verdict. Evidence examined, and held to justify the court in directing a verdict for plaintiff.</p>

<p>Drains: Constihj tuts; Damages. One whose'land is traversed by a drainage ditch constructed under the provisions of sections 5500-5527, Ann. St. 1907, is entitled to recover the value of the land actually taken therefor, together with special damages, if any, to the remainder of his land caused by the construction of the improvement; but he cannot recover in such proceeding the damages he may have theretofore sustained by reason of the neglect of the county board to keep a previously established ditch free from silt and debris and in a suitable condition to serve the purpose for which it was constructed.</p>

<p>1. Information: Duplicity: Forgery. Forging and fraudulently uttering and publishing the same instrument, if done by the same person, constitutes but one crime, which may he charged in á single count of an information.</p> <p>2. Criminal Law: Limitations. An information setting forth forgery, and the uttering and publishing of the forged instrument by the same person, in separate counts, charges but a single offense, commonly called “forgery,” which falls within the exception contained in section 256 of the criminal code.</p> <p>3. --: -. In such a case, although it appears that the transaction occurred more than three years before the commencement of the prosecution, the so-called second count of the information, which sets forth the fact of uttering and. publishing the forged instrument, is not vulnerable to a general demurrer as being barred by the statute of limitations.</p>

<p>1. Grand Jury: Impaneling:. Since tbe enactment of section 584, criminal code, no grand jury can be lawfully organized, unless its selection and impaneling has been previously ordered by a judge of the district court for the county in which said grand jury is to act.</p> <p>2. -: • — —1—. Such order must be in writing and filed with the clerk of the district court on or before the day fixed by law for the drawing of jurors for the term of court at which the grand jury is to appear.</p> <p>3. -. Jones v. State, 18 Neb. 401, and State v. Lauer, 41 Neb. 220, followed.</p>

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

<p>1. Criminal Law: Trial: Excluding Witnesses. In a trial of a criminal case where the accused is charged with a felony, it is the duty of the court in the exercise of its discretion, upon request, to exclude from the courtroom all witnesses for the state not being examined; but'in the absence of a showing of abuse of discretion, or a prejudice to the accused on trial, a judgment of conviction will not, for that reason alone, be reversed.</p> <p>2. -: Witnesses: Examination by Court. While it is the right of a trial judge in the exercise of a sound discretion to interrogate witnesses on a trial of a criminal case when essential to the administration of justice, yet the practice of so doing should be discouraged. Should the discretion be abused, or prejudice to the accused be shown by the record to have resulted, a new trial should be granted. But a judgment of conviction will not be set aside for that reason .in the absence of a showing of such abuse or prejudice.</p> <p>3. -: Instructions: Prejudice. Where, in the trial of an accused charged with the commission of a felony, there were a large number of instructions given to the trial jury, all of which are assigned for error as, when taken as a whole, they show a prejudice or bias on the part of the court against the accused, this court will examine the whole charge for the purpose of ascertaining if such prejudice or bias be shown. In the present case the instructions are not thought to be objectionable on that ground.</p> <p>4.-: -- — : Malice. On the trial of an accused charged with the crime of murder in the first degree, the court gave the jury the following instruction: “Malice, within the meaning of the law, includes not only anger, hatred, ill will, and a desire for revenge, but every other unlawful and unjustifiable motive. A thing done with a wicked mind, and attended with such circum-. stances as plainly indicate a heart regardless of social duty and fully bent on mischief, indicates malice within the meaning of the law. And the existence of malice is inferred from acts committed or words spoken.” Held, Not erroneous.</p> <p>5.-: -: Great Bodily Harm. An instruction defining “great bodily harm” as being “a battery of greater magnitude than a common assault and battery,” held not erroneous by reason of the use of the term “common assault and battery,” without further definition of “assault and battery”; the meaning of the term “assault and battery” being known in common speech by people of ordinary intelligence, it is presumed the jury understood it.</p> <p>6. -: -; Seht-Dbeense. In an instruction on the law of self-defense, otherwise unobjectionable, it is held not erroneous for the court in stating the law to say: “Where a man in the lawful pursuit of his business is attacked, and where from the nature of the attack he honestly believes that there is a design to take his life or to do him great bodily injury,” etc. — the objection being that it left the jury to infer that the accused was not in the lawful pursuit of his business when he entered the place of business of the deceased for the purpose of procuring property which he claimed belonged to him, notwithstanding the court had refused an instruction that he had the right to go there for that purpose.</p> <p>7. -: Witnesses: Examination: Waiver oe Ebeok. The evidence showed that the deceased and the accused met at an attorney’s office for the purpose of adjusting a money demand which the accused made upon the deceased; that in the conversation there was much ill feeling shown; the accused having been assaulted and beat by the deceased a number of times during that day. The deceased renewed an accusation that the accused had stolen money from the place of business where he' had been employed, refused to pay anything, ordered the accused to cease his de- ' mands, and left the room. ' Immediately thereafter the accused made the remark, “I’ll fix him,” and departed. On cross-examination the witness was asked if deceased had not in that conversation made threats to the accused of personal violence' whenever he should meet him. Objection to the questions was made by the attorney for the state upon the ground, among others, that the proof of the facts sought to be elicited was a part of the defense. The objections were sustained. Held, Error. But,’ as the attorney announced that he would make the witness his own for the purpose of making the proof, and did, at a subsequent stage of the trial, call the witness on the part of the defendant and inquired into the details of the conversation, but refrained from in any form repeating the questions ruled out on cross-examination, it is held that the error was waived.</p> <p>8. Homicide: Instructions: Intoxication. It was shown by the evidence that the deceased was killed by the accused between the hours of 4 and 5 o’clock in the afternoon; that the accused drank intoxicating liquors freely during the day and up to a short time before he killed the deceased; but there was no proof that at the time of the tragedy the accused was so far intoxicated as to render him irresponsible for his acts. The court instructed the jury that voluntary intoxication would not relieve a person committing a crime from the penalties of the law; hut that, if there was evidence that the accused was intoxicated at the time it was alleged that he committed the crime, it should be considered by the jury for the purpose of 'determining whether he was capable of forming a wilful, deliberate and premeditated purpose to take life. If he was so far' intoxicated as to be incapable of forming such purpose, and the jury entertained a reasonable doubt upon that subject, he could only be found guilty of murder in the second degree, if guilty of murder. This was in accordance with an instruction asked for by the defense. But the court added that, if the jury found that the accused took intoxicants “to steady his nerves for the commission of the crime,” his intoxication would not excuse him. Held, That, though there was no occasion for the instruction, the error in giving the addition was not prejudicial, and therefore harmless.</p> <p>9. Criminal Law: Trial: Opening Statement. Section 478 of the criminal code provides that after the jury is impaneled, and after the attorney for the prosecution has made a statement of the case and the evidence by which he expects to sustain the charge, “the defendant or his counsel must then state his defense, and may briefly state his evidence he expects to offer in support of it.” Under the provisions of this section, neither party may discuss the law of the case, nor instruct or admonish the jurors as to their duties as such jurors; it being the province of the court alone to instruct the jury. It is not error for the court to confine counsel to the statement of the case and the evidence they expect to produce.</p> <p>10. Homicide: Defenses. It was disclosed by the evidence adduced upon the trial that during the earlier part of the day on which deceased was killed he committed a number of assaults upon the accused, beating and cuffing him, but that no assault had been made immediately prior to the time when deceased was killed, and on that occasion deceased ejected the accused from his place of business by pushing him out through the door and inflicting a slight assault. Although these facts might be considered in mitigation, they, as matter of law, afforded no defense to the charge of murder, the essential elements of that crime having been found by the jury to exist at the time deceased was killed.</p>

<p>1. Judgment: Entry Nunc Pro Tunc. Judgment nunc pro tunc may be entered in two classes of cases: First, those cases in which the suitors have done all in their power to place the cause in condition to be decided by the court, but in which; owing to the delay of the court, no final judgment had been entered until the death of one of the parties or some other occurrence would prejudice a party in not having the judgment entered as of the date when the case was submitted to the court. The second class embraces those eases in which judgment, though pronounced by the court, has from accident or mistake of the officers of the court never been entered in the court records. In such cases the court will order the judgment actually rendered entered nunc pro tunc on the production of satisfactory evidence that the judgment was rendered as alleged.</p> <p>2.--,: -: Such entry will not, however, be allowed to the prejudice of a third party who has become the owner of the property which will be affected by the order, and such party may appear and resist the entry of a judgment nunc pro tunc which will prejudice his interest.</p>

<p>1. Mutual Accident Insurance: Change of Beneficiary. Section 6638, Ann. St. 1903, relative to mutual accident insurance companies, providing that any member shall have the right at any time with the consent of such corporation to designate a new and different beneficiary, held to require the consent of such corporation, -notwithstanding the by-laws of the company provide that a beneficiary may be changed upon the written application of the member to the secretary.</p> <p>2. -: -. A member of a mutual accident insurance association wrote a letter to the association requesting the substitution of a different beneficiary. In reply thereto the association wrote to him, requesting him to fill out the blank on the policy intended for use in designating a change of beneficiaries. Thereafter the assured made no move in the matter. Held insufficient to bring about a change of beneficiaries.</p> <p>3. -: Reduction of Benefits. The declaration of the officers of a mutual insurance company fixing the amount of benefits less than that provided by the contract and by-laws cannot become a part of the contract, unless it was made known to the assured when he became a member, or was legally adopted thereafter.</p>

<p>1. Process: Service: Return: Jurisdiction. The court acquires jurisdiction over a defendant upon the proper service of summons regularly issued; and it is immaterial that the officer serving the summons does not make and file his return until after the answer day.</p> <p>2. Courts: Continuance: Jurisdiction. "Where the county judge fails to attend at the commencement of any regular term of'the county court, all cases pending in the court and triable at such term are, by operation of law, continued to the succeeding term, and the court retains jurisdiction to try such cases at the succeeding term.</p> <p>3. Judgment: Validity. A judgment rendered by a county court on default, and in the absence of both parties, in a civil action not cognizable before a justice of the peace, at a time that it is regularly reached for trial, although irregular, is not void; and, if no seasonable application is made to set it aside for sucih irregularity, it may be enforced.</p>

<p>1. Land Contract: Foreclosure: Pleading: Admissions. In a suit by a vendor to foreclose upon a contract for the sale of real estate, if the vendee seeks the enforcement of the contract and pleads a tender of a sum to pay the remainder of the purchase price, he thereby admits that the vendor is entitled to a decree of foreclosure for the amount tendered.</p> <p>2. Tender. In order to make a tender effective and to relieve the defendant from further interest and costs, he must, when sued, not only plead the tender, but bring the amount into court so that it may he available for the use of the plaintiff.</p> <p>3. Judgment: Interest. Under section 6727, Ann. St. 1903, a judgment or decree should draw 7 per cent, interest from the date of its rendition, when founded upon a contract which provides for interest at a less rate.</p> <p>4. Land Contract: Suit foe Conveyance: Damages. A vendee in a contract to convey real estate free and clear of incumbrance is entitled to nominal damages only, in an action -where be seeks to compel the conveyance and to recover damages on account of limitations and restrictions in the vendor’s title, if the limitations and restrictions do not affect the market value of the property.</p> <p>5. -: Foreclosure: Decree. On entering a decree of foreclosure for a balance due in an action by a vendor to foreclose a contract for the sale of real estate, provision should be made requiring the vendor to make a conveyance upon the payment of the decree.</p>

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

<p>1. Cities: Injuries: Evidence: Admissibility. In an action for personal injuries against a city by one who claims to have been injured by reason of the overturning, during a wind-storm, of a billboard which defendant city had permitted to be erected and maintained close to, or upon, the sidewalk space, it is not error . to admit testimony tending to show that at the time of the injury the board was not securely braced, and that such condition had existed for .some 12 months prior thereto.</p> <p>2. -: -: Notice. Section 22, eh. 12a, Comp. St. 1901, does not require an injured person to include within his written notice to the city a statement of the nature and extent of both the accident and injury, but reference to either, with full particulars as to the nature and extent thereof, satisfies the statute on that point.</p> <p>3. -: -: Question for Jury. Evidence examined, and held sufficient to warrant the submission to the jury of the issue as to whether or not the wind-storm that overturned the billboard was an act of God.</p> <p>4. -: -: Evidence. Evidence examined, and held, sufficient to sustain the verdict of the jury.</p> <p>5. Jury: Qualifications. It is the duty of the trial court to decide as to the fact of qualification of a juror challenged for cause from a consideration of his entire examination and such other evidence and circumstances as tend to throw light upon the subject. The trial court in determining the fact of qualification is not confined to the answers of the juror alone, but may consider his appearance and general demeanor while undergoing the examination.</p> <p>6. --------: ———. In such a case the ruling of the trial court in deciding a challenge for cause will not he disturbed unless an abuse of discretion is shown.</p>

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

<p>1. Deeds: Validity. A deed executed and acknowledged, but without an attesting witness, is valid between the parties.</p> <p>2. Acknowledgment: Impeachment. Evidence examined, and found insufficient to impeach the certificate of acknowledgment of a justice of the peace attached to a deed of real property.</p>

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

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

<p>1. Limitation of Actions: Obstruction oír Watercourse. Where defendant fills with earth the channel of a creek and fails to provide a sufficient outlet for the flood waters that would naturally find passage down said watercourse, so that at widely separated dates the flood waters are backed up and cast against and over plaintiff’s lots and into his mill, plaintiff’s cause of action will accrue at the date of the injury to his property, and not at the time of defendant’s negligent acts.</p> <p>2., Waters: Obstruction on Watercourse: Damages. In such case, the measure of plaintiff’s recovery is the difference in the fair market value of his property immediately before and immediately after the injury.</p> <p>3. -: -: Action: Instructions. Upon the trial of said case, plaintiff’s witnesses, if qualified, may testify to the cost of restoring said property to its condition before the injury, but it is error to instruct the jury that it may allow such cost in addition to general damages, or to instruct, in effect, that the possibility of future overflows and further injury are factors to be considered in making up a verdict for plaintiff.</p>

<p>1. Beal Estate Agents: Revocation of Authority. A mere naked authority to sell land may he revoked or modified at any time hy the principal, where the instrument granting the authority is not given for a valuable consideration or does not create in the agent an interest in the real estate.</p> <p>2. Principal and Agent: Authority of Agent: Notice: Unauthorized Acts. Where the act of an agent is void unless his authority therefor is in writing, one dealing with the agent is hound with notice of the terms and conditions of the instrument creating the power, and a contract made hy the agent in the name of his principal, if beyond the scope of such authority as evidenced hy the writing, is not binding on the principal.</p> <p>3. Evidence in this case examined, and found to sustain the decree of the district court.</p>

<p>1. Monopolies: Aseeement in Restraint oe Trade. An agreement between retail lumber dealers, whereby one dealer agrees to “protect” the other by ashing a higher price than the other for the same bill of lumber submitted to both for prices, is in violation of the statute.</p> <p>2. -: -: Injunction. An agreement made by a number of the retail lumber dealers in a county to sell lumber and building materials within the county at certain fixed prices and to divide territory is illegal and void as in restraint of trade and competition, and will be restrained and enjoined.</p> <p>3. -: -: -. Under the circumstances disclosed in this case, field that the action of the secretary of the Nebraska Lumber Dealers Association in a number of transactions detailed in the opinion was in violation of law as tending to prevent or preclude free competition in the sale of lumber and building materials in this state and being in restraint of trade, and that, under the facts disclosed, the officers and directors of said association are chargeable with' knowledge of such acts. Held, further, That all such proceedings upon his part should be perpetually enjoined, and that the defendant association and its officers and directors should also be perpetually enjoined from doing or performing, and from permitting or allowing said secretary or his successors or any officers of said association to do or perform, any such unlawful acts, and from carrying on any such practices or proceedings in violation of the statutes of this state prohibiting combinations in restraint of trade.</p>

<p>1. Incest: Evidence. At a trial upon a charge of incest, evidence may he properly received of other criminal acts of the same nature anterior to the time the crime is charged to have been committed.</p> <p>2. -: Instructions. An instruction, in substance, that the prosecutrix was not an accomplice, and that if the jury were satisfied beyond a reasonable doubt of the truth of her evidence it might convict the defendant, is a correct statement of the law applicable to the case.</p> <p>3. -: Evidence. Under the facts testified to in this case, it was not erroneous to allow evidence that a child born after marriage was the result of incestuous intercourse.</p>

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

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

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

<p>1. Bastardy: Pie a in Abatement. A p’ea in abatement cannot be used to raise the question of the sufficiency of the evidence to warrant holding a party for trial on the charge of being the father of an illegitimate child.</p> <p>2. —--: Directing Verdict. Unless the evidence produced on the trial of a party charged with bastardy is of such a nature that the only rational conclusion to be drawn therefrom is that the charge against him has not been sustained, the court is not in error in refusing to direct a verdict in his favor.</p> <p>3. -: Instructions. It is error for the court to instruct the jury that the defendant on trial for bastardy must establish by a preponderance of the evidence the fact that he was not present at the time and place where prosecutrix claims the child was begotten.</p>

<p>Pleading: Demprreb. In determining whether a general demurrer should he sustained to an amended petition, which supersedes the petition originally filed in the case, the court will not look beyond the pleading against which the demurrer is directed.</p>

<p>Sales: Parol Evidence. In an action to recover the purchase price of machinery shipped to the vendee upon his written order therefor, it is competent for the vendee to allege and prove that the order was given upon the oral representations of the vendor that the machinery would do the work for which it was required, and that it failed to do so.</p>

<p>1. Taxation: Assessment: Mutuau Insurance Companies: Reserve Fund. A mutual insurance company, organized under the laws of this state for the mutual benefit of its members, and not for profit, is entitled to set off the amount of its outstanding benefit certificates against securities in its reserve fund set apart and devoted exclusively to the payment of such certificates.</p> <p>2. Case Followed. Royal Highlanders v. State, 77 Neb. 18, adhered to.</p>

<p>1. Lotteries: Statute: Construction. The rule that courts will not permit the recovery of the consideration paid upon an executed contract prohibited by statute does not apply to the vendee of a lottery ticket, for whose benefit the statute was enacted.</p> <p>2. Case Distinguished. Bowen v. Lynn, 73 Neb. 215, distinguished.</p>

<p>1. Evidence: Admissibility. The declaration of the payee of a promissory note, who is not a party to the action, and who has no interest in the result of the litigation, is inadmissible in evidence against the purchaser of such note for the purpose of disproving his ownership.</p> <p>2. Appeal: Instructions. It is not error for the trial court to refuse to give proper instructions in the form requested, if the same principles are embodied in those given by the court on his own motion.</p>

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

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

<p>1. Insurance: Mutual Companies: Reinsurance. Mutual fire insurance companies organized under the provisions of chapter 45, laws 1897, are not authorized to transact a reinsurance business.</p> <p>2. -: Reinsurance: Assessments. A contract of reinsurance made by a mutual insurance company organized under the provisions of chapter 45, laws 1897, is ultra vires, and assessments cannot be collected on account of such policy.</p> <p>3. -: : — : Ultra Vires Contracts: Estoppel. In an • action by one insurance company against another, both of which were organized under the provisions of chapter 45, laws 1897, to recover assessments on policies of reinsurance, the reinsured company is not estopped from pleading the defense of ultra vires.</p>

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

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

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

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

<p>1. Contracts: Alterations: Presumptions. Where 'a contract prepared by the use oí a typewriter appears to have been changed after the first impression is made, the presumption is that such change was made before execution and delivery.</p> <p>2. .Corporations: Contracts: Authority of Manager. The manager of sales of a manufacturing corporation has power to direct and contract in regard to the usual running business of selling its wares, and persons contracting with such corporation are not bound to know of a by-law thereof limiting the power of such manager to make the customary contracts.</p> <p>3. -: -: Ratification. Where a corporation ratifies or Knowingly accepts the benefits of a contract made by one of its agents, it cannot repudiate the same on the ground that the agent ¿ad no actual authority to execute such contract.</p>

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

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

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

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

<p>Appeal from the district court for Dawson county: Bruno 0. Hostetler, Judge.</p>

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

<p>1. Trial: Eight to Open and Close. “In the trial of a case the party first required to produce evidence is entitled to open and close the argument.” Zweibel v. Myers, 69 Neb. 294.</p> <p>2. Appeal: Verdict: Conflicting Evidence. Where testimony is conflicting, and it is fairly submitted to the jury, a new trial will not be granted if there is evidence enough to sustain the verdict, even though this court might differ with the trial judge and the jury as to the weight of the evidence.</p> <p>3. New Trial: Newly Discovered Evidence. A new trial will not be granted upon the 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>4. -: Diligence. Where a party forgets the presence of a witness to an important conversation until after the trial, he cannot obtain a new trial on the ground of newly discovered evidence, relying upon the testimony of such witness.</p> <p>5. Evidence in this case examined, and held sufficient to sustain the verdict of the jury.</p>

<p>1. Appeal: Evtpence. The admission of immaterial evidence is not reversible error unless it is shown to have, in some manner prejudiced the rights of the complaining party.</p> <p>2. -: Instructions. An instruction which responds to the issues made by the pleadings and is predicated on the evidence cannot be successfully assailed by the defeated party.</p> <p>3. -: -. It is not error to refuse an instruction requested in behalf of either party to a cause where the subject matter of ■ the instruction is fully stated and explained in the charge of the court to the jury.</p>

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

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

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

<p>1. Limitation of Actions: Waiver. A stipulation in a promissory note providing, “And the payee or holder of this note may renew or extend the time of payment of the same from time to time as often as required, without notice, and without prejudice to the rights of such payee or holder to enforce payment against the makers * * * at any time when the same may be due and payable,” is not an agreement to waive the bar of the statute of limitations.</p> <p>2. Pleading: Review: Suitpioieiíot. In determining the effect of a pleading, this court will give it a liberal construction whenever such pleading is attacked for the first time in this court, or where the parties go to trial in the lower court without objection upon a pleading thus assailed.</p> <p>3. -: Judgment oe Dismissal. The petition shows upon its face that the notes sued on were barred by the statute of limitations. The answer alleged the bar of the statute as a defense. In reply the plaintiff alleges matters in avoidance of the defense pleaded. Held, In this state of the pleadings, appellant cannot urge that a judgment dismissing his action is not supported by the pleadings.</p>

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

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

<p>Appeal from the district court for Red Willow county: Robert 0. Orr, Judge.</p>

<p>Sales: Rescission : Action iron Price. Where, in a sale of personal property on time, the vendor within a few days after the sale, fearing that the contract of sale may be impeached for alleged mental incompetency of the vendee, retakes possession of the property sold and converts it to his own use, the vendee may waive his right to sue for conversion, and, by acquiescing therein, may treat the unauthorized act of the vendor as a rescission of the sale, and successfully urge such rescission as a defense in an action by the vendor to recover the purchase price.</p>

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

<p>1. Physicians: Revocation op License: Complaint. “A complaint filed before the state board of health for the purpose gf procuring an order revoking the license of a physician is sufficient if it informs the accused, not only of the nature of th® wrong laid to his charge, but of the particular instance of its alleged perpetration.” Munk v. Frink, 75 Neb. 172, reaffirmed’iittd followed.</p> <p>2. -: -: Tkial. In a trial under such a “complaint it is not necessary that the proceedings should Be conducted with that degree of exactness which is required upon a .trial for a criminal offense in an ordinary tribunal of justice.</p> <p>3. -: -: -. Proceedings by the state board of health to revoke a physician’s license for cause are summary in their nature, and are triable before the board without the intervention of a jury.</p> <p>4. -: -: Conditions Precedent. A trial and conviction in a court of competent jurisdiction is not a condition precedent to a proceeding by the state board of health against a physician to revoke his license for any of the causes provided by statute.</p> <p>5. -■ — : -: Pleading. In a hearing by the state board of health of charges against a physician for procuring or aiding or abetting in procuring a criminal abortion, it is not necessary to either allege or prove that the woman had become quick. It is not the murder of a living child which constitutes the offense, but the destruction of gestation where such destruction is not necessary in order to preserve the life of the woman. The moment the womb is instinct with embryo life and gestation has begun the crime may be perpetrated.</p> <p>6. -: -: Powers of State Board of Health. The power conferred upon the state board of health to revoke a physician’s license for cause is an- administrative and not a judicial function, and the limit of judicial interference in such cases is to protect the accused in his right to a hearing upon specific charges after reasonable notice of the time and place of hearing has been given, and a full opportunity afforded him to present his defense to such charges and against a conviction, unless upon competent evidence.</p> <p>7. -: —--: Findings: Evidence. In such a case, when the state board of health has so proceeded and taken testimony, and given the respondent full opportunity to appear in person or by counsel to cross-examine the witnesses against him, and to introduce testimony in his own behalf, and has passed upon the sufficiency of the evidence so taken, the findings of the board as to the sufficiency of the evidence to sustain the charges will be upheld, unless it appears that there is no evidence to sustain such findings.</p> <p>8. -: -: —■-. Evidence examined, and held that the state board of health proceeded in the present case fairly and openly, and within the powers granted to it by the legislature; that appellant was given proper and sufficient notice of the hearing and full opportunity upon such hearing to vindicate himself from the charges preferred against him; and that the findings and judgment of the board are in all respects regular and in accordance with the statute under which it acted.</p>

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

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

<p>1. Police Judges: Fees: Statutes: Construction. Consistent statutes relating to the same subject, though enacted at different times, are to be construed as if enacted together and on the same date. So construed, section 34, eh. 28, Comp. St. 1907, imposing a penalty for the collection of excessive fees, applies to police judges.</p> <p>2 Consolidation of Actions. Where persons who should have joined as plaintiffs in an action split their joint demand and bring separate suits, a motion to consolidate such suits under the provisions of section 150 of the code should be sustained.</p> <p>3. Fees: Complaint: Several Defendants. Statutes giving fees are to be construed strictly, and are not to be extended by implication. Where a complaint is filed against several persons, the same fees should be charged as if there were but a single defendant, until demand is made for separate trials; and then fees should only be charged for such extra duties as are necessarily caused by such separation.</p> <p>4. Police Judges: Fees: Action: Defenses. A police judge sued under the provisions of section 34, ch. 28, Comp. St. 1907, for talcing excessive fees may not justify the talcing of such fees by-showing that he acted under the direction of the prosecuting attorney.</p>

<p>1. Negligence: Evidence. Evidence of subsequent repairs made or precautions taken after an accident or the infliction of an injury is not admissible to prove antecedent negligence.</p> <p>2. Damages: Evidence. Where growing crops are totally destroyed as a result of' defendant’s negligence, plaintiff can recover their fair market value at the time of their .destruction, and testimony tending to show their value at that time is competent, even though on cross-examination it appears that the witness did not include in his mental estimate every factor of uncertainty that might enter into the value of the said crops at the time of their annihilation.</p>

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

<p>1. Appeal: Conflicting Evidence. Where the evidence is conflicting it will not be examined further than to see that there is sufficient to justify the conclusion reached.</p> <p>2. Trial: Instructions.. Where an instruction is requested, the substance of which is contained in other instructions given, it is not error to refuse such requested instruction.</p> <p>3. Appeal: Discretion of Court. The latitude allowed counsel during the trial of a cause is a matter resting largely in the discretion of the trial court. An appellate court will not, in the absence of clear abuse of discretion by the trial court,, avoid its determination of the actual effect of any improper conduct during the trial.</p> <p>4. -: Instructions. And especially so when the court instructs the jury “that they should disregard all statements of counsel made during the trial or argument of this case to the jury that are not founded on the evidence.”</p>

<p>Appeal from the district court for Dawson county: Bruno 0. Hostetler, Judge.</p>

<p>1. Parol Evidence: Contract. A simple receipt is only prima facie evidence of the facts recited therein and may be explained by oral evidence, but when, in addition to a receipt, the paper also contains a contract of the party signing it, such contract stands on the same footing as other written contracts, and it cannot be varied or modified by parol in the absence of a showing of fraud in obtaining it.</p> <p>2. Peal Estate Agents: Contracts. A contract for the sale of real estate, made by the owner to a real estate agent, must be regarded and construed as like contracts between other parties, and the fact that it provides for deducting from the agreed purchase price a sum designated as “commission” to be allowed by the vendor does not render it objectionable to the provisions of section 10856, Ann. St. 1907.</p> <p>3. Vendor and Purchaser: Actton: Evidence. In a suit to recover from a real estate agent an alleged balance of the purchase price • of a farm sold to him, evidence that at the time of the sale he was plaintiff’s agent for the sale of the farm and had an offer therefor in excess of the price for which he made the purchase is irrelevant and immaterial. If the plaintiff wished to recover on account of the fraud and misconduct of the agent, his suit should be framed on that theory.</p>

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

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

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

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

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

<p>1. Evidence: Admissions ojt Coconspirators. Admissions made out of court by a conspirator after the complete execution of the conspiracy are not admissible in evidence in an action against his coconspirator for the purpose of establishing conspiracy.</p> <p>2. Conspiracy: Evidence. A conspiracy cannot he established by the admissions alone of a coconspirator who is not a party to the record.</p> <p>3. Evidence: Admissions of Coconspibatobs. Admissions of a conspirator are not admissible in evidence in an action against his co-conspirator, unless there is other evidence tending to prove cohspiracy.</p>

<p>1. Appeal: Pleading: Sufficiency. Where a pleading has been attached for the first time in the appellate court, and a strict grammatical construction thereof would be contrary to the plain and obvious intent of the pleader, and would substantially defeat the action, the pleading should be liberally construed so as to give effect to the intent and purpose of the pleader.</p> <p>2. Pleading: Construction: Damages. In an action to recover for personal injuries, where facts have been alleged which would show several elements of damages, the last one being for $25 incurred for medical attendance, which is immediately followed by an averment that plaintiff was thereby damaged in the sum of $2,043; such allegation construed, and held that it was the intent of the pleader to charge that the amount of damages was the result of the several elements of damages alleged, and that the petition should not be construed so as to limit the recovery to the item of medical attendance.</p> <p>3. Trial: Damages: Instructions. In an action for personal injuries, it is error to submit to the jury the question of damages for loss of time, when there is no evidence of the value of the time lost. The value of such lost time must be proved by what wages the plaintiff usually and ordinarily received, and not by what he received in a'n isolated instance.</p> <p>4. -: Withdrawal of Defense From Jury. It is proper for the trial court to withdraw from the consideration of the jury any affirmative defense pleaded that is not sustained by any evidence.</p> <p>5. Damages: Evidence. In an action for personal injuries, it is not proper for the plaintiff to prove the number and ages of children that he has dependent upon him for support.</p> <p>6. Appeal: Exclusion of Evidence. Error of the trial court in excluding evidence cannot be successfully urged in the appellate court, where no offer of proof was made after the sustaining of the objections to the questions.</p> <p>7. -: Evidence: Review. Where evidence that is not properly admissible has been received in evidence over objections to a question, but where there is nothing in the form of the question to indicate that the evidence would be inadmissible, the aggrieved party cannot complain, unless he moves to strike out and withdraw from the consideration of the jury the objectionable testimony.</p> <p>8. Damages: Evidence. In an action for'personal injuries, it is improper to permit a medical witness to testify that such an injury as that complained of might become a permanent injury. The inquiry should be confined to the reasonably probable effects of the injury complained of.</p> <p>9. Action for Damages: Assault and Battery: Instructions. In an action for damages resulting from an assault and battery inflicted upon the plaintiff by the defendant, it is not proper to instruct the jury that a crime has been committed, and to define the crime of assault and battery.</p>

<p>1. Justice of the Peace: Absence: Calling in Another Justice. That part of section 1092 of the code which reads as follows: “In case of the sickness or other disability, or necessary absence of a justice, at the time appointed for trial, another justice of the same county may, at his request, attend in his behalf, and shall thereupon become vested with the powers, for the time being, of the justice before whom the summons was returnable" — construed, and held that, so long as the necessary absence of the justice before whom the case was commenced continued, the justice who was requested to attend in his behalf would retain jurisdiction to do and perform every act required in the proceedings, including the filing and approval of an appeal bond and the making of a transcript. ,</p> <p>2. Appeal: Exceptions, Bill oe. This court will not consider any affidavits that may appear in the transcript as having been used upon any contested question of fact determined by the district court, unless such affidavits are preserved in a bill of exceptions.</p>

<p>Appeal from the 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>1. Pleading: Striking Amended Petition. Where the additional matter set up in an amended petition does not entitle the plaintiff to any further or different relief than he might have demanded under his original petition, the court cannot eommit error in striking such amended petition from the files.</p> <p>2. Tax Sales: Redemption. The right of redemption from sales of real estate for the nonpayment of taxes, given by the constitution, applies to judicial as well as to administrative sales. The 'confirmation of such judicial sales applies only to the regularity of the proceeding, and in no way adjudicates the right of redemption from* such sale. It follows that redemption may be made upon the payment to the purchaser of the amount of his bid, with 12 per cent, interest thereon to the time of such redemption, together with the amount of subsequent taxes paid by defendant, with interest thereon at the rate borne by such subsequent taxes under the statute.</p>

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

<p>Appeal from the district court for Douglas county: Alexander 0. Troup, Judge.</p>

<p>1. Principal and Agent: Liability of Agent. Where an agent negotiates a sale of-real estate for the broker with whom the purchaser makes a contract, he is not for that reason liable jointly with the vendor for a return of the purchase price paid, in a case where the vendor fails to make the conveyance.</p> <p>2. Vendor and Purchaser: Rescission. Where one is so situated with reference to a tract of land that he can acquire the title thereto either by the voluntary act of the parties holding the title or by proceedings at law or in equity, he is in a position to make a valid agreement for the ^sale thereof; and, where he does make such agreement, the fact that the purchaser understood him to be possessed of the legal title does not constitute a ground for rescission of the contract, especially where it appears that such purchaser did not rely upon the existence of the legal title in the vendor.</p> <p>3. Process. To authorize summons to another county in a merely personal action for money, there must be an actual right to join the resident and nonresident defendants.</p>

<p>1. Execution Sale: Mortgaged Property. Where several articles of personal property subject to the same mortgage are seized upon execution, in the absence of any direction or request on the part of the mortgagor, it is the duty of the officer to sell the property included in the mortgage en masse, and subject to the mortgage.</p> <p>2. —--: -. Where several articles of personal property subject to the same mortgage are seized upon execution against the mortgagor, who, after being informed that the articles cannot be sold separately without taking care of the mortgage, persists in the request that such articles be sold separately, such action on the part of the mortgagor is sufficient to support a finding that he consented, to the sale of the goods free from the mortgage, and to the payment of the same from the proceeds.</p>

<p>1. Party Walls: Rights oe Parties. Where a wall is entirely upon the property of one party, the right of an adjoining owner to have support therefrom, whether derived from contract or acquired by prescription, is in the nature of an easement, which is terminated upon the destruction of the building by fire.</p> <p>2. --: Notice to Purchaser, The fact that the owner of a building used a wall upon the land of an adjoining proprietor for the support of his building before the same was destroyed by fire is not such notice as charges a purchaser of the property upon which the wall is situated with knowledge of a stipulation in an unrecorded written contract that the owner of such building might renew the use of such wall in case it should be destroyed and rebuilt.</p> <p>3. Appeal. "Where the judgment of the district court is proper upon the undisputed facts shown by the record, it will be affirmed, without considering whether the reasons given by the trial judge for his conclusion were competent and adequate to support the same.</p>

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

<p>1. Divorce: Maintenance oe Children: Decree: Alteration. Where, in a decree of divorce, the court includes an order concerning the custody or maintenance of minor children, those infants in a sense become wards of that court, and it has authority at any subsequent period of their minority, upon application of either parent and sufficient notice to the other, to revise and alter the decree so far as it relates to the care, custody or ■ maintenance of the children.</p> <p>2.-: -. The parents cannot .by contract between themselves, nor can the court by any order it may make in the divorce suit, irrevocably determine the amount of money the father shall contribute for the support and education of his children, so as to deprive that court of power, upon a proper showing and notice, to alter said decree in the interest of justice and for the benefit of said children.</p> <p>3. -; Decree. The wife’s alimony and the children’s maintenance, if included in the same decree, should be separated into distinct items, and not included in one sum.</p>

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

<p>1. Partnership: Evidence. A verbal agreement between two persons to purchase jointly a city lot, where one of said parties later buys the land, paying all the purchase price and taking the entire title in himself, does not constitute a partnership. Norton v. Brink, 75 Neb. 575, followed.</p> <p>2. Statute of Frauds: Agreement as to Lands. Unless there has been ■such .a performance of said contract as to take it without the statute of frauds, the agreement will not be specifically enforced.</p> <p>3. —-——: Part Performance. The mere writing of two letters to the former owner by one of said parties to ascertain the lowest price, for which said property can be bought, which letters refer to the writer as the sole prospective purchaser, and the inspection of said premises to determiné the repairs essential to restore the building thereon to a habitable condition, will not constitute such a • part performance as to take the contract without the statute of frauds.</p> <p>4. Specific Performance: Decree. In an action for specific performance of ,a contract, where the answer is a general denial, it is error for the court to quiet defendant’s title against plaintiff’s claim to the property involved.</p>

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

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

<p>1. Charities: Charitable Uses: Enforcement. The doctrine of charitable uses as administered by the courts of chancery of England exercising judicial powers only, independent of the statute of 43 Elizabeth and of the cy pres power under the kingly prerogative, has been transplanted to this state, but in its enforcement the courts can exercise judicial powers only. St. James Orphan Asylum v. SheTby, 60 Neb. 796.</p> <p>2.-: -: Construction. Courts will view with favor donations by will for charitable purposes, and will endeavor to carry them into effect where the same can be done consistently with the rules of law. St. James Orphan Asylum v. Shelby, supra.</p> <p>3.-; Testamentary Trusts: Beneficiaries. Where the object of a testamentary trust is clearly charitable, and the property devised is certain and -definite, and the trustee is clearly described and competent to take the devise and administer the trust, and the beneficiary is certain and definite as to the class, the bequest will not fail on account of the indefiniteness or uncertainty of the individuals who are the ultimate beneficiaries.</p> <p>4. -: -: -. An element of a charitable trust, as compared with a private one, is the indefiniteness pud uncertainty of the ultimate beneficiaries. If the class of beneficiaries is described in general terms, the trust may be sustained and enforced, although the individual beneficiary is uncertain and his or her selection is expressly or impliedly left to the trustee.</p> <p>5.-: testamentary Bequest: Construction. A bequest by a-testator, who was a native of an island of the kingdom of Norway, to a church congregation or parish of the island, which body is by the laws of that kingdom capable of receiving such bequests and administering such charitable trusts, of a sum of money to be invested, and the income therefrom distributed annually “to worthy and needy servant girls and the widows and orphans of deceased sailors and fishermen who are not a public charge,” and appointing three of the parish officers and their successors in office to carry out the provisions of the bequest, constitutes a charitable trust, and is sufficiently definite as to its objects, the trustee and the beneficiaries, so.that it may be upheld.</p> <p>6. -: -: -. Provisions of the will set forth in the opinion construed, and held that it was the testator’s intention that the income from the trust be .distributed to those persons within the classes described who are inhabitants of the respective parishes to which the several bequests were made, and to authorize the designated trustees to select the individuals within the classes who are the ultimate beneficiaries.</p>

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

<p>Notes: Validity.- An agent for the sale of machinery took a note from a purchaser representing a commission or bonus on the sale, the amount of which he added to the purchase price. He also received from his principal “commission certificates” showing the amount of commission due from his principal, and payable when the notes given by the purchaser of the machinery were paid. Held, That the commission or bonus note exacted by the agent from the purchaser was voidable at the option of the maker.</p>

<p>Intoxicating Liquors: License. It is not an abuse of the discretion vested in the excise board of a city to refuse a license for the sale of intoxicating liquors at a place in the near vicinity of the post office and United States court house, or at any other locality in near proximity to a place which women and children, in large numbers, are daily required to visit for business or other proper purposes.</p>

<p>1. Intoxicating Liquors: License: Discretion of Board. The excise board of a city is yested with a wide discretion in the matter of granting licenses for the sale of intoxicating liquors.</p> <p>2. *-: -: -. Such discretion extends to limiting the number of licenses which it will issue for the sale of liquors within the city, as well as the number that will be granted for any particular locality.</p> <p>3. -:--: -. This is especially true where, as in the city of Lincoln, the board is charged with policing the city and maintaining peace and good order therein, but is limited in the number of officers which it may appoint and maintain for this purpose.</p>