Volume 82 — Nebraska Reports

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

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

<p>1. Death: Pleading. A petition filed by the personal representative of a deceased person under the provisions of Lord Campbell’s act, as it has been adopted in this state, alleged that the next of kin, naming them, were dependent upon the deceased for support. Held, That this is a sufficient pleading of a fact from which it may be inferred that the next of kin had suffered a pecuniary loss by reason of the unlawful act of the defendant.</p> <p>2. -: -. In an action under the provisions of Lord Campbell’s act, the petition, in substance, alleged that the defendant as decedent’s physician carelessly, negligently and unskillfully treated the plaintiff, and that he wrongfully and carelessly failed to make an examination of the deceased such as a physician of ordinary care would have done, and diagnosed her disease as one other than appendicitis, with which she was, in fact, suffering. Held, Sufficient to show that, had death not resulted through the alleged wrongful acts of the defendant, the deceased ’ could have maintained an action in damages for the wrongs set forth.</p> <p>3. -,; Damages. In an action under the provisions of Lord Campbell’s act to recover damages on account of the death of an unmarried adult where the father is the only next of kin entitled to the benefit of such action, the rule for measuring the compensatory relief is to ascertain, as nearly as possible, the pecuniary benefit which the father might reasonably have expected to receive from his deceased child had her life not been terminated by the defendant’s wrongful act.</p> <p>i. -: -: Question for Jury. It is not necessary that there should be a legal or even a moral obligation resting upon the deceased to support her next of kin in order to permit the personal representative to maintain an action under the provisions of Lord Campbell’s act. The contributions to the support or benefit of the next of kin which might reasonably have been expected from the deceased had her life not been terminated by the wrongful act of defendant is an element of damages, but the same must be ascertained by the jury under proper instructions.</p>

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

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

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

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

<p>, 1. Divorce: Extreme Cruelty. Whether accusations of infidelity made by one spouse against the other constitute extreme cruelty within the meaning of the statute must be determined by the facts of each particular case. In no case will they be given that effect unless they are shown to be either unfounded or malicious.</p> <p>2. Husband and Wife: Maintenance. A wife is not guilty of desertion in leaving the domicile of a husband who, addicted to drunkenness and association with women of doubtful character, fails to support her; and in such ease she is entitled to an award of a reasonable sum for the support of herself and minor children until such time as the plaintiff shall provide them a suitable home and support, and shall satisfy the court that he is ready and willing, in good faith, to amend his conduct.</p>

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

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

<p>1. States: Rivers as Boundaries. If the middle of a river forms a state boundary, that boundary follows any changes in the stream which are due to gradual accretions to or degradation of its banks.</p> <p>2. -■ — : -. If the change is sudden and rapid, such as occurs when a river forms a new course by cutting through a bend, the boundary does not follow the stream, but remains in the middle of the old channel.</p> <p>3. -: -. From about the year 1855 until about 1860, a tract of land within the state of Nebraska was bounded on the east by the Missouri river. Within three years of the last-named date said stream gradually encroached upon said land until all of said tract was under water; and, as the river advanced westward, accretions attached to the east bank of the river until they covered the site of the land first herein referred to. In 1874 said river suddenly changed its course much further east, and the water therein cut a new channel, so that said alluvion was isolated from the land in Iowa. Held, That by the first process of erosion and accretion said land was transferred from Nebraska to Iowa, and that the operation of avulsion did not restore said land to the former state.</p> <p>4. Courts: Jurisdiction: Legislative Powers. The legislature is without power to afithorize the courts of Nebraska to quiet title to lands within the boundaries of a sister state.</p>

<p>Appeal from the district court for Douglas county: Howard Kennedy, William A. Redick and Willis G. Sears, Judges. State v. Several Parcels of Land affirmed:</p>

<p>1. Telegraphs and Telephones: Franchises. The franchise or right to occupy the streets of a city by a telephone company is not identical with the business or occupation of the company.</p> <p>2. Double Taxation. An occupation tax measured by a percentage of the gross earnings of a telephone company, whose franchise is also taxed in connection with its tangible property according to its value as a going concern, does not tax the same property twice.</p> <p>3. Telegraphs and Telephones: Occupation Tax. The provision for an annual payment of $500 to the city of Lincoln in the respective franchise ordinances of two telephone companies “in consideration of the rights and privileges granted” is a sum exacted by the city for the privilege of using the streets under its proprietorship of the streets, and, while termed a “privilege tax,” is in the nature of a rental. charge or compensation for the use of the streets.</p> <p>4.-: —-. The exaction of a percentage of the gross earnings of its business in the ordinance granting a franchise to the Western Union Independent Telephone Company is an exercise of the taxing power of the city, and is a tax upon the business or 'occupation of conducting a telephone business within the city.</p> <p>5.-: -: Repeal. Such provision is also legislative in its character, and subject to repeal.</p> <p>6. Taxation: Uniformity'. A provision in an ordinance imposing an occupation tax that “the sum and amount of the occupation tax or taxes on the gross receipts required to be paid under existing ordinances” may be deducted from the amount of the tax is not void because not uniform as to persons or property, since by its operation all persons engaged in the same occupation are taxed upon the same basis and in the same manner.</p> <p>7. Telegraphs and Telephones: Occupation Tax. Under its charter, the city of .Lincoln may lawfully enact an ordinance imposing upon telephone companies a business or occupation tax measured by the gross receipts within the city, and the fact that tolls and rentals collected within the city are in part for messages over lines lying in part beyond the city limits does not invalidate the tax. Western Union Telegraph Co. v. City of Fremont, 39 Neb. 692.</p>

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

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

<p>Appeal from the district court for Lancaster county: Willard E. Stewart, Judge.</p>

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

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

<p>1. Appeal. Where a party seeks to Intervene in an action after the entry of a void judgment, and his petition for intervention is dismissed, the' time for appealing to this court dates from the dismissal of his petition, and not from the date of the void judgment.</p> <p>2. -: Notice: Jurisdiction. The failure to serve notice of appeal on appellees, as prescribed by rule 86 of this court, does not affect the jurisdiction of this court over the action, and this court will, for good cause shown, permit the issuance and service of an alias notice of appeal.</p> <p>3. Mortgages: Foreclosure: Jurisdiction at Chambers. The district court is without jurisdiction to hear and determine at chambers an action to foreclose a mortgage. Where the hearing was had and decree entered at chambers, they are void.</p>

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

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

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

<p>Appeal: Review: Bill oe Exceptions: Authentication. Where the pleadings support thé judgment rendered, and the correctness of the court’s finding depends upon the evidence adduced on the trial, the judgment will be affirmed, unless the bill of exceptions is certified by the clerk of the district court as being either the original or a copy of the one allowed and ordered made a part of the record of the case.</p>

<p>1. Pleading. Where a plaintiff in an action to enjoin trespass claims under a lease, an allegation in an answer to such petition, that such lease has been canceled and terminated, is new matter which must be taken as true if not denied by a reply.</p> <p>2. Appeal: Withdrawal oe Record. The disposition of a case will not be delayed to permit an appellant to make a showing for leave to withdraw a purported bill of exceptions attached to the record, to the end that it may be authenticated, when under the pleadings no judgment could be rendered in favor of such appellant.</p>

<p>1. Drains: Laterals: Petition. The power given by section 2, art. I, ch. 89, Comp. St. 18S1, to include a branch ditch, drain or watercourse necessary to secure the object of the improvement, whether mentioned in the petition or not, is not confined to such branches, ditches or drains as are wholly designed to drain the land lateral to the line of the main ditch.</p> <p>2. -: -: Assessments: Injunction: Review. The county board, in fixing assessments for benefits conferred by the construction of a branch ditch under the provisions of article I, ch. 89, Comp. St. 1881, acts judicially, and its judgment and findings 'will not be reviewed for error in an injunction suit brought to restrain.the execution thereof.</p> <p>3..-: Injunction: Notice. Where three railroad companies, being owner, lessee and sublessee, respectively, of a railroad, join in an action to restrain proceedings under the drainage act of 1881 (laws 1881, ch. 51), on the ground that due notice of such proceedings- was not given, it is incumbent upon such plaintiffs to show want of knowledge of the existence of such proceedings in time to appear and contest the same.</p> <p>i. -: Damages: Collateral Attack. Where three companies are interested in a railroad which is claimed to be damaged by the improvement of a branch ditch which was constructed prior to the building of the road, the question of such damages is . properly disposed of in the original proceedings; and the mere fact that no damages were allowed one of the companies does not make such proceedings void and subject to collateral attack.</p> <p>5. Constitutional Law: Titles of Acts. While by its title the drainage act of 1881 (Comp. St., ch. 89, art, I) is restricted to the purpose of draining swamp and marsh lands only, it is not void as in contravention of section 11, art. Ill of the constitution.</p>

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

<p>1. Criminal Law: Continuance. Where the adverse party admits that the witnesses, if present, would testify as stated in an affidavit for a continuance, and the party presenting such affidavit afterwards reads the statement contained therein as evidence to the jury, there is presented no ground for a reversal of the final judgment of the trial court because of its refusal to grant the continuance asked.</p> <p>2. -: -. Only that part of the affidavit for a continuance which sets forth the evidence of the absent witnesses should he read to the jury, and it is proper for the court to exclude the other matters contained therein.</p> <p>3. -: Selecting Jury. Rulings of the district court in overruling challenges for cause are not prejudicial to the defendant, unless it is shown that he was compelled to accept one or more objectionable jurors for want of peremptory challenge.</p> <p>4. -: -. The true object of challenges, peremptory and for cause, is to enable the parties to avoid disqualified persons and secure an impartial jury, and, when it appears that this end is accomplished, there can be no just ground of complaint against the ruling of the court as to the competency of the jurors.</p> <p>5. -: Instructions. An instruction tendered by a party may be properly refused, if the proposition contained therein has been fully covered by the instructions given on the court’s own motion.</p> <p>6. -: -. It is proper for the trial judge, in instructing the jury in a criminal case, to quote so much of the statutes as is necessary to define the crime charged against the defendant, and ordinarily it is not prejudicial error to include in the quotation the punishment provided therefor.</p> <p>7. -: -. It is not necessary for the trial court to cover all of the elements of the crime charged against the defendant in a criminal prosecution by. a single paragraph of the instructions. It is sufficient if the instructions as a whole cover all of the elements of the offense and correctly state the law to be applied thereto.</p> <p>8. -: -. An instruction treating the evidence as both direct and circumstantial held, in this case, to correctly reflect the state of the record.</p> <p>9- -•--. The following instruction: “And you are further instructed that, if you believe, after considering all the evidence in the case, that any witness or witnesses have wilfully and' knowingly testified falsely to any fact material to the issue in this case, you have the right to entirely disregard the testimony of such witness or witnesses” — is not vulnerable to the objection that its language is especially directed against the .defendant, who was a witness in his own behalf.</p> <p>10. -: -. It is not error to instruct the jury, in substance, that, if, after a careful comparison and candid consideration of all the evidence in the case, they have a doubt of the defendant’s guilt, it will then be their duty to determine whether such doubt is reasonable and sufficient in law to acquit him, and, if they find the doubt in question is not a reasonable one, it will not be sufficient to acquit the defendant.</p> <p>11. Homicide: Evidence, On the trial of one charged with murder in the perpetration of a robbery, the state may be permitted to introduce evidence to show that the person murdered- and her husband were in possession of a certain sum of money which they put away in the home for safe-keeping shortly before the commission of the crime, and that such money was missing when the criminal act was discovered, notwithstanding the defendant was not present when the money was put in the supposed place of safety.</p> <p>12. Criminal Law: 'Evidence: Harmless Error. The admission of incompetent evidence does not always require the reversal of the judgment of the trial court, and, where it clearly appears that the evidence complained of is so immaterial that its reception could not have influenced the juiy in arriving at their verdict,- its admission is error without prejudice.</p> <p>13. -: —-. In a criminal prosecution, evidence of the defendant’s flight from the scene of the tragedy, his arrest and escape to an adjoining state, where he . obtained employment distant from any railroad or highway, and in a place where he was likely to escape detection and avoid arrest, may be introduced by the state as tending, when considered with all of the other evidence in the case, to establish his guilt. .</p>

<p>Application of Leonard B. Robinson for admission to the bar.</p>

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

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

<p>Master and Servant: Action for Injuries: Directing Verdict. In an action to recover damages for a personal injury, the defendant is entitled to a directed verdict when the evidence is insufficient to show that the alleged negligence was the proximate cause of the in-jury.</p>

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

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

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

<p>1. Curtesy: Suspension of Bight. Where a wife, owning as tenant in common with her brothers and sisters an undivided share of lands subject to the dower and homestead right of their mother, together with such brothers and sisters and upon a sufficient consideration, enters into an agreement with the mother not to partition said lands during the lifetime of the mother, such agreemént is binding upon her husband when claiming as tenant by the curtesy after the death of 'the wife and during the lifetime of the mother.</p> <p>2. Tenancy in Common: Partition. An action by a tenant in common to have his undivided share set apart to him is in effect an action in partition, and may not be maintained unless the tenant in common is entitled to the present possession of such share.</p>

<p>1. Exceptions, Bill of: Motion to Quash. The trial judge is not authorized to settle a bill of exceptions more than 100 days from the adjournment of the term at which the cause was tried, decree entered, and motion for a new trial overruled. A bill allowed in violation of the statute will be quashed upon motion duly made in this court. Stock v. Luetien, 72 Neb. 254, approved and followed.</p> <p>2. Forfeitures are not favored either in law -or equity and, if the intent is doubtful, will receive a -strict construction against those for whose benefit they were introduced.</p> <p>3. Vendor and Purchaser: Contracts: Formsiturk. A contract for the sale of real estate provided that, upon the vendee’s failure to execute notes and a mortgage- and to make a second cash payment, the money theretofore paid thereon “is to he declared forfeited to the said party of the first part” (vendor). Belli, That it was incumbent on the vendor, upon vendee’s default, to declare a forfeiture to entitle her to retain said money.</p>

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

<p>Tax Sale: Redemption: Interest. One who purchases lots oí lands at a state tax sale, for less than the amount of the decree against said property is entitled upon redemption from said sale to receive 6 per cent, interest on his bid if redemption is made within six months, and for every additional month over six, or for a fraction thereof, 1 per cent, in addition, plus all taxes and ' subsequent assessments paid by said purchaser, with the same rate of interest thereon.</p>

<p>1. Carriers: Regulation of Transportation. A contract between a railroad company and a physician, by the terms of which he is to receive for professional services to be rendered by him for the company, at its request, the sum of $25 a month and an annual pass over its lines of road, where the physician does not spend a major portion of his time in the employment of the company, is prohibited by the provisions of sections 10664, 10665, Ann. St. 1907, and the acceptance and use of such a pass by the physician renders him guilty of a violation of those sections.</p> <p>2. Constitutional Law: • Carriers: Police Power. The provisions of ch. 93, laws 1907, commonly called the “Anti-Pass Law,” prohibiting the issuance, acceptance and use of free transportation, are a proper and reasonable exercise of the police power of the state, and the power of the legislature to regulate the business of common carriers by preventing unjust discriminations, and are not . unconstitutional.</p>

<p>Original application for disbarment of William L. Newby.</p>

<p>1. Constitutional Law: Unfair Competition. The act of the legislature entitled “An act to prohibit unfair commercial discrimination between different sections, communities, or localities, or unfair competition, and providing penalties therefor,” approved April 3, 1907 (laws 1907, ch. 157), held, not to be in violation of the constitution.</p> <p>2. -; Class Legislation. The said act does not prevent persons and corporations dealing in commodities in general use from selling them at such price as such person or corporation may-see proper to demand, nor is it class legislation .within the constitutional prohibition.</p> <p>3. -- — : Police Power. The prevention of discrimination in particular localities, in prices of commodities in general use, “for the purpose of destroying the business of a competitor,” by selling such commodities at a lower rate in such locality than is charged for the same elsewhere, is within the police power of the state.</p> <p>4. ——: ...... : Powers of Legislature. Within constitutional limits, the legislature is the sole judge as to what laws should be enacted for the protection and welfare of the people, and as to when and how the police power of the state is to be exercised.</p>

Orininal application for writs of quo warrcmto to determine the rights of respondents to the office of park commissioner of the city of Omaha.

Original application for writ of mandamus to compel respondent, as judge of the district court, to vacate an order of injunction.

<p>1. Executory Contract: Breach: Damages. Where a contract is executory, one party has the legal right to stop performance on the other side by an explicit direction to that effect, subjecting himself to such damage as will compensate the other party for being stopped in the performance of his part at that stage in the execution of the contract. The party thus forbidden to proceed cannot afterwards go on, complete the contract, and recover the contract price as such; his only remedy being for damages for breach of contract.</p> <p>2. -; -; Remedy. Where the vendor in an executory contract for the sale of goods receives notice from the vendee that he will not accept delivery of the goods or pay for the same, and the vendor, notwithstanding such notice, leaves the goods at the place of delivery named in the contract, and brings suit against the vendee as for goods sold and delivered, he cannot recover in such action either the purchase price of the goods or the damage sustained in consequence of the vendee’s breach of the contract.</p> <p>3. Appeal: Recobd. A written stipulation of facts or mode of proof filed in a cause forms no part of the record, unless made so by a bill of exceptions.</p> <p>4. -: Presumptions. In the absence of a bill of exceptions, it will be presumed that an issue of fact raised by the pleadings received support from the evidence, and that such issue was correctly determined.</p>

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

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

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

<p>1. Pledges: Tender: Release oe Lien. A tender of the amount secured by pledge of personal property made upon the maturity of the debt, although not accepted nor kept good, will release the property from the lien of the pledge.</p> <p>2. -•. ' Wilkins v. Redding, 70 Neb. 182, criticised</p> <p>3. -: Fraud: Interest. The pledgee of personal property fraudulently represented that he had sold the property pledged and sent $20 to the pledger as a part of the purchase price, which the latter, relying upon the fraudulent representations, retained until he discovered the fraud. Held, That the pledger was not liable for interest on the $20.</p>

<p>Mortgages: Void Decree: Ejectment: Equity. Where a valid real estate mortgage has been foreclosed, even though the foreclosure proceedings were void, neither the mortgagor nor any one claiming under him will be permitted to assail the title acquired through the foreclosure proceedings without paying or tendering the amount of the decree and interest. Stull v. Masilonka, 74 Neh. 309, followed.</p>

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

<p>1. New Trial: Instructions: Assignment ojt Errors. “An assignment in a motion for a new trial that a group of instructions is erroneous is bad if any one of them was properly given.” City of Soiith Omaha v. Powell, 50 Neb. 798.</p> <p>2. Appeal: Verdict: Assignment oe Errors. An assignment of error that “the verdict is contrary to law” raises the question whether the verdict is contrary to the law as contained in the charge given by the court to the jury, but nothing more. Drexel v. Daniels, 49 Neb. 99.</p> <p>3. Assault and Battery: Justification. A father who owns land upon which is situated a dwelling house, which, with his permission, is occupied by a married son and his family as a residence, is without right to enter upon the premises so occupied by the son for the purpose of ejecting a third person, objectionable to the father, who is there on the invitation of the son.</p> <p>4. -: -. The fact that the son is in poor health, and that the father is contributing to his support, is immaterial.</p> <p>5. -: Liability. If the father in attempting to eject such third person commits an assault upon him, he is liable in an action for the damages resulting therefrom.</p>

<p>1. Dormant Judgment: Revivor. While a proceeding to revive a dormant judgment is not the commencement of a new action, it is the commencement of new and different proceedings under the provisions of the statutes permitting such revivor. Eaton v. Hasty, 6 Neb. 419, and Bankers Life Ins. Co. v. RohHns, 59 Neb. 170, distinguished.</p> <p>2. -: ———: Defenses: Special Appearance. While a judgment debtor who has been served with notice of an application to revive a dormant judgment cannot interpose any objections which seek to go behind the original judgment, he may appear and interpose any and all suitable defenses which he may have to the revivor, such as payment, that such judgment is void for the reason that the court which entered it had no jurisdiction over his person, and the like, and may make all proper motions in reference thereto, without being held to have appeared generally in the action so as to render valid a judgment which was void for want of jurisdiction over his person.</p> <p>3. Process: Return: Impeachment. Evidence examined and set out in the opinion held sufficient to meet the requirement that the return of an officer can only be overcome by evidence that is clear and convincing.</p>

<p>1. Appeal: Contract: Reformation: Harmless Error. Where an employer admits that an employee named in a written contract was employed in the capacity of general manager, he cannot complain of a judgment reforming such written contract so as to express the character of such employment, on the ground that it was not intended to designate the capacity in the written contract. Such action, if erroneous, was error without prejudice!</p> <p>2. Reformation of Instruments: Contract of Employment: Evidence. Where a person who is president and manager of several allied corporations makes a contract employing a general manager for one of such corporations, hut the written contract of employment is made in the name of another one of such corporations, the undisputed fact that said general manager rendered his services to and was paid by the former will support a finding of the district court reforming such writing so as to make it the contract of the former.</p> <p>3. Action: Stipulation: Estoppel. Where a person who is the president and manager of several allied corporations makes a contract employing a general manager for one of such corporations, but the written contract of employment is made in the name of another one of such corporations, and the general manager brings a suit for wages against both corporations, a stipulation in such suit that such writing is the contract of the corporation for which the services were rendered, upon which stipulation the general manager dismisses the suit against the other corporation, estops the corporation for which the services were rendered from afterwards denying the same as against the said general manager.</p> <p>i. Appeal: Witnesses: Veracity. Where no fact'is disclosed inconsistent with the truth of the testimony of a witness, and there is nothing improbable nor unreasonable in his story, the question of his veracity is peculiarly one for the trial court, and its finding thereon is entitled to favorable consideration.</p> <p>5. Reformation of Instruments: Evidence. Where it is clearly established that in the negotiation of a contract between the plaintiff and the defendant’s president, a clause of such proposed contract being under consideration, the said president assured the plaintiff that he understood it to have a specified meaning favorable to the plaintiff’s claim, such contract will be reformed to express the meaning so given it.</p>

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

<p>1. Evidence: Admissibility. If the evidence relative to a material fact is conflicting, any collateral fact or circumstance tending in a reasonable degree to establish the probability or improbability of the disputed fact is relevant and properly admitted, although it may not tend directly to prove any issue in the case.</p> <p>2. -: Expebts. Hypothetical questions propounded to an expert, if so framed as to fairly and reasonably reflect the facts proved by any of the witnesses in the case, will be sufficient, provided the subject is one proper for expert testimony.</p> <p>3. Appeal: Conflicting Evidence. In law cases the verdict of a jury will not be set aside if based upon conflicting evidence, unless that verdict is clearly wrong.</p>

<p>1. Evidence examined, and found sufficient to sustain the findings against respondent.</p> <p>2. Attorneys: Unprofessional Conduct. Where an attorney in presenting a claim against the state to the legislature knowingly supports the same by a false, forged and fraudulent appraisement as evidence of its validity and of the amount he is entitled to recover thereon, he is guilty of gross, unprofessional conduct, and a breach oi sound professional ethics, and should receive suitable punishment therefor.</p> <p>3. Costs: Disbarment Proceedings. In the absence of any statute providing for the taxation of costs in proceedings for disbarment, it is proper for the court to require each party to pay his own costs.</p>

<p>1. Contracts:' Evidence. Evidence of a conversation in which on» party states mere conclusions as to a contract is not evidence of the contract.</p> <p>2. Telephones: Regulation. The courts will not interfere with the proper • administration of the business affairs of a litigant,. but, when necessary, will render assistance therein.</p>

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

<p>1. intoxicating Liquors: License: Duty op Board. In the matter of granting a license for the sale of intoxicating liquors, it is the duty of the licensing board to see to it that the licensee is a man of respectable standing and character. It is not permitted them to indulge the presumption that an applicant is of good standing and character, when it is denied by remonstrance.</p> <p>8. -: -: Petition: Affidavits as Evidence. Affidavits are incompetent to prove that the petitioners for a liquor license are freeholders when that question is properly placed in issue by remonstrance.</p> <p>3. -: -: Evidence. Upon the hearing before the excise board, a witness testified to circumstances which, if true, would establish sales of liquor by applicant to a minor during the preceding year. The board refused either to require the witness to disclose the name of the minor or to strike out his testimony. Held, Error.</p> <p>4. -: -: Appeal. Cities having excise boards who by statute are given exclusive power to license and regulate the sale of intoxicating liquors cannot appeal from an order denying or granting a license.</p>

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

<p>Intoxicating Liquors: License: Revocation: Mandamus. "Where a hearing has been had upon an application for a license to sell intoxicating liquors and a remonstrance thereto, and such remonstrance has been overruled and the license issued, and an appeal has been taken to the district court within a reasonable time, the license so issued should be recalled and revoked pending the appeal in the district court, and mandamus will issue to compel the recall and revocation of the license.</p>

<p>1. Divorce: Pleading. The allegations contained in the eighth paragraph of the petition set out in the opinion, when considered in connection with preceding paragraphs of the petition which .allege specific acts of personal violence and cruel treatment, held a sufficient statement of' a cause of action for extreme cruelty, and sufficient to overcome any previous condonement.</p> <p>2. Evidence examined and set out in the opinion, held sufficient to sustain the findings and judgment of the district court.</p>

<p>Creditors’ Suit: Timber Culture Lands: Exemptions. A judgment against a surety upon a supersedeas bond is' a debt contracted at tbe date of the approval of such bond, within the meaning of that clause of the timber culture law which provides that land acquired under such law shall not in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of the final certificate therefor.</p>

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

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

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

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

Original application for a writ of mandamus to compel respondents to set a day and grant a hearing on the report of the engineer on the establishment of a drainage ditch, and to proceed with its construction.

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

<p>1. Master and Servant: Injury: Fellow Servants. Two gangs of-workmen were engaged in the construction of a telephone line, each under a different foreman; the first gang digging the holes and setting the poles therein, the second gang stringing the wires on the poles. Held, That the parties employed in such separate employment were not fellow servants.</p> <p>2. —--: -: Notice: Liability of Master. A telephone company gave each of its linemen a printed notice setting forth their duties, and stating, among other things, that “all linemen and other employees of the company whose duties require them to work' upon or about poles are especially charged with the duty of inspecting the implements with which they work, all poles, cross-arms and wires, and must know that they are safe to work with or upon, before climbing or going upon such poles and cross-arms.” Held, That, notwithstanding this notice, the company in the construction of new lines in which if employed two gangs of workmen, one known as “groundmen,” who set the poles, and one known as “linemen,” who strung the wires, could not escape liability for setting a defective pole, from the breaking of which a lineman was precipitated to the ground and injured.</p> <p>3. Trial: Instructions. A judgment will not be reversed because of an instruction which, taken by itself, is ambiguous, and which in one view seems to impose on the master a greater burden than the law imposes in respect to the character of the tools and appliances furnished his servant, if such instruction is qualified by others, so as to make it apparent that the jury were' not misled, and the charge as a whole correctly defines the law.</p>

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

<p>Appeal: Verdict: Evidence. When the verdict returned by the jury is the only one justified by the evidence, alleged error in the instructions of the court will not be considered.</p>

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

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

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

<p>Appeal from tlie district court for Lancaster county: Lincoln Feost, Judge. •</p>

<p>1. Injunction: Trespass. A single trespass upon real estate, in the absence of a showing that the trespass will be repeated, will not warrant the issuance of an injunction.</p> <p>2. -: Pleading. An allegation in an answer in an action to enjoin trespass upon real estate, whereby the defendant seeks to justify a single act of trespass, is not sufficient to show an attempt or purpose to repeat the trespass.</p>

<p>1. Appeal: Judgment: Estoppel. Where the plaintiff in a foreclosure suit offers in his petition to pay the amount of a supposed tax lien on the property covered by his mortgage, and in the prayer of his petition prays the right to make such payment, and the court so decrees, he cannot complain of such decree, even though it appears from the evidence on the trial that he was under no legal obligation to make such payment.</p> <p>2. Receivers: Appointment: Notice: Hearing. Where plaintiff in an application for the appointment of a receiver serves notice upon the parties interested that such application will be presented to the court or to a judge in vacation on a certain day and hour and at a designated place, the court or judge is without power, except by stipulation or appearance of the parties, to hear such application at an earlier date than that specified in such notice.</p> <p>3. -: -: Collateral Attack. And where the record on its face shows that the court or judge acted on such application one day earlier than the date specified in such notice, and appointed a receiver as requested in said application, without any appearance or consent by the adverse party, such appointment is void, and the judgment of the court or judge making the same may be attacked collaterally.</p> <p>4. Judgment: Collateral Attack. Where the record of a case foreclosing a tax lien shows upon its face that the only service attempted to be made upon a defendant corporation was upon a stranger to such corporation, as receiver thereof, when no receiver had in fact ever been appointed for such corporation, a judgment rendered in such case against such corporation is void and may be attacked collaterally by such corporation or its assigns.</p> <p>5. Tax Lien: Foreclosure: Decree: Conclusiveness. In a foreclosure proceeding by H., the holder of a tax sale certificate, against the M. S. bank, mortgagee, and S., the owner of the land, it was alleged that “the defendant is or claims to be the owner of said real estate, that defendant M. S. bank and all of the defendants herein have or claim to have some right, title, lien or interest in said land, either by deed, judgment, mortgage or mechanic’s lien, or otherwise, the exact nature and extent of which is to plaintiff unknown, but plaintiff avers that, if said defendants or any or either of them have any right, title, lien or interest in or against said real estate or any part thereof, the same is junior, inferior, and subject to the lien of the plaintiff herein set forth.” The defendants all having made default, a decree of foreclosure was entered, in which it was adjudged that the M. S. bank “be foreclosed of all equity of redemption or other interest in said premises.” In a subsequent action by an assignee of the M. S. ' bank to foreclose his mortgage, held, that the former decree cannot be pleaded by S. as a bar. Lincoln Nat. Bank v. Virgin, 36 Neb. 735.</p> <p>6. Tax Sale: Purchase by Owner. A purchase of land at sheriff’s sale in a suit foreclosing a tax lien made by one whose duty it was to pay the taxes operates as payment only. He can acquire no rights as against a third party by a neglect of the duty which he owed to such party. Concordia Loan & Trust Co. v. Parrotte, 62 Neb. 629; Pitman v. Boner, 81 Neb. 738.</p>

<p>1. Sales: Contract: Offer: Acceptance. A mere uncommunicated purpose to accept an offer for the sale or purchase' of property does not constitute an acceptance, and where parties are distant and the contract is to be made by correspondence, the writing of a letter or telegram containing notice of acceptance is not of itself sufficient to complete a contract. In such a case the act must involve an irrevocable element, and the letter must be placed in the mail, or the telegram deposited in the telegraph office for transmission, and thus placed beyond the power or control of the sender, before the assent becomes effectual to consummate a contract; and not then, unless the offer is still standing.</p> <p>2. -: Countermand of Order. Where an order given for machinery contains a clause giving the vendor the right to accept such order or not as he pleases, and no time is fixed within which such acceptance shall be made, the vendee has the right, up to the time of acceptance, to countermand such order.</p> <p>3. Principal and Agent: Authority of Agent. Tile facts stated in the opinion held ample to sustain the conclusion that plaintiffs representative, J. F. Hennessy, in his negotiations with defendants on July 11 and 12, 1904, had power to hind the plaintiff in that transaction.</p>

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

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

<p>1. Guaranty: Consideration. The extension of time of payment to a principal debtor is a sufficient consideration to support a new contract of guaranty made after the date of the renewal of such obligation, especially when the guarantor at the time of making such guaranty is still liable as guarantor for the payment of the debt renewed.</p> <p>2. Subrogation. A third party guaranteeing payment to the payee of a promissory note is not entitled, upon payment of such note by him, to have the same delivered with a guaranty of the payee made to any indorsee of the note intact.</p>

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

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

<p>1. Surface “Water: Drainage. “Every proprietor may, lawfully improve his property by doing what is reasonably necessary for this purpose, and, unless guilty of some act of negligence in the manner of its execution, will not be answerable to an adjoining proprietor, although he may thereby cause surface water to flow on the premises of the latter to his damage.” Aldritt v. Fleischauer, 74 Neb. 66, approved and followed.</p> <p>.2. —;—: -. “An owner of land has the right in the interest of good husbandry to drain ponds or basins thereon of a temporary character, and which have no natural outlet or course of flow, by .discharging the waters thereof by means of an artificial channel into a natural surface-water drain on his own property, and through such drain over the land of another proprietor in the general' course of drainage in that locality, even though the flow in such natural drain is thereby increased over the lower estate, and provided that this is done in a reasonable and careful manner and without negligence.” Aldritt v. Fleischauer, 74 Neb. 66, approved and followed,</p> <p>3. Waters: Drainage. Two or more adjoining landowners may lawfully join in the construction of a ditch solely upon the premises of one thereof, where the object and purpose is to drain a pond situated partly on the lands of all of said proprietors.</p>

<p>Principal and Surety: Duration oe Liability. A bond given to a national bank by its president to insure the faithful performance of his duties as such officer, which purports to continue “during his appointment,” must be read i'n connection with the term of that appointment, and, if it is for a definite period, the sureties will not be liable for their principal’s misconduct subsequent to the expiration of the time for which he was appointed.</p>

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

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

<p>Set-Off: Action on Note. S. executed to F. & B., a partnership, his negotiable promissory note which said firm discounted, but later, after the note matured, again became the owner thereof. Thereafter said firm dissolved, and, upon a division of its assets, said note became the property of F., one of said partners, who brought suit against S. thereon. S. set up a contract which he alleged had been made between himself and' said firm upon which he claimed there was more due him than the balance unpaid upon said note, and asked judgment therefor. Held, under section 106 of the code, that if the contract pleaded by S. was made, and there accrued to him a cause of action thereon after the maturity of said note and during the time that F. & B. owned it, to said extent, as against said firm or its members, the note was satisfied, and that S. was entitled to make said defense in this ease.</p>

<p>1. Constitutional Law: "Sunday Law.” Section 241 of the criminal code does not contravene the fourteenth amendment to the constitution of the United States, nor section 15, art. Ill of the constitution of Nebraska; nor is it repugnant to either section 1 or section 3, art. I of the Bill of Rights.</p> <p>2. Habeas Corpus: Misdemeanor: Defective Complaint. After trial and conviction for an alleged misdemeanor, a prisoner will not be liberated on a writ of habeas corpus because of the insufficiency. of the complaint in said criminal proceedings, if by any possible construction of the language employed therein an offense against the law is thereby even defectively stated.</p>

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

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

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

<p>1. Mandamus: Elections: Canvass of Ballots. Mandamus will not lie to compel the county board of canvassers to count ballots cast at a primary election for the nomination of state and county officers, which have been rejected by the election board under the provisions of section 5830, Ann. St. 1907, because they were not signed by. the judges of election and were not indorsed with the signatures of any of the election officers.'</p> <p>2. -: -: Remedy at Law. In such a case the statutes relating to the contest of elections provide a speedy means of determining the validity of such ballots and afford a plain and adequate remedy at law.</p>

<p>1. Taxation: Interest. Taxes were levied upon real estate for the years 1892, 1893 and 1894 upon a valuation of $5,200. In 1896, in a suit then pending to enjoin the collection of the taxes upon ■the ground that the assessment and valuation of the property was grossly excessive, the court found that a just and equitable valuation was $5,000, and directed the county treasurer to correct the tax lists for said years and extend and collect taxes upon such basis. Held, That, assuming that the court had jurisdiction and authority to render such decree, and that the decree was effective to cancel the taxes on the valuation in excess of $5,000, the taxes upon the valuation so decreed were not rendered void, and that they drew interest to the’ same' extent as they would have done had no suit been brought.</p> <p>2. -: -: Tender. The presentation of a certified copy of such decree to the county treasurer, with demand that he correct the tax lists so as to conform to said decree in order that the taxpayer might know the amount of taxes to be paid, followed by the statement of the treasurer that he would consult the county attorney .upon the subject, with no further inquiry or demand by such taxpayer, held not to be such a tender or offer by the taxpayer as would arrest the running of interest.</p>

<p>1. Tax Sale: Redemption. In redeeming from a judicial sale of land made for delinquent taxes, the purchaser is entitled to receive the amount bid at the sale with interest.</p> <p>3.-: -: Tender. Redemption from such a sale must be made or offered within two years from the sale. If the purchaser refuses to allow redemption to be' made, the party wishing to redeem should tender the purchaser the amount necessary therefor, unless the purchaser by his conduct waives a formal tender.</p> <p>3. -: -: -: Waiver. A formal tender is waived by the refusal of the purchaser to receive anything less than an amount which is larger than that to which he is entitled.</p> <p>4. -: -: Limitations. If the purchaser refuses to allow redemption to be made on legal terms, a cause of action for that purpose arises in favor of the owner or party interested, which may be brought and prosecuted at any time before being barred by the general statute of limitations.</p> <p>5. -: -. The owner of real estate who conveys the same by deed of general warranty after a sale thereof for delinquent taxes has such an interest in the land as entitles him to redeem from the tax sale.</p>

<p>Appeal from the district court for Douglas county: Lee ¡8. Estelle, Judge.</p>

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

<p>1. Dormant Judgment: Attachment Lien: Merger. In an action aided by attachment, upon the entry of judgment the attachment lien is merged in that of the judgment, and thereafter the lien is a mere incident to the judgment and ceases to exist when the judgment becomes dormant. Harvey v. Godding, 77 Neb. 289.</p> <p>3.-: Execution: Injunction. A proposed sale of real estate under an execution issued on a dormant judgment will be enjoined at the suit of one who acquired title to the'property during the life of the judgment lien.</p> <p>3. Judgment: Intervention: Dismissal. One who intervenes in an action between third parties may dismiss his intervention without prejudice, and after such dismissal a judgment entered in the action will not affect his interest in the matter in litigation.</p>

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

<p>1. Quo Warranto: Title to Office: Pleading. In an action of quo warranto, brought to determine the respective rights of the relator and respondent to an elective public office, it is not necessary that relator should state in the information that he received the highest number of votes cast for any candidate for the office. It is sufficient in that respect if facts are alleged in the information from which such conclusion may be drawn. Nor is it necessary in such an action that the relator should allege that the votes were canvassed and returned as required by law.</p> <p>2. -: -: -- — . In an action of quo warranto, where' relator’s right to a public office is grounded upon the proposition that a legislative act is unconstitutional, it is not necessary to allege that the act is unconstitutional, where the supreme court has previously determined that such act is in conflict with the constitution.</p>

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

<p>Appeal from the district court for Platte county: George H. Thomas, Judge.</p>

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

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

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

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

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

<p>Taxation: Equalization: Appeal. On an appeal to tlie district court from the decision of a county hoard of equalization, said court is without jurisdiction to consider any questions other than those presented to said hoard.</p>

<p>1. Vendor and Purchaser: Contract: Acceptance. In order to convert an offer into a contract to sell real estate, the vendee must accept the offer as made.</p> <p>2. -: -: -. Acceptance of an offer to sell land, but fixing a place' other than the residence of the vendor, or the place named in the offer, for the payment of the consideration and delivery of the deed, is not an unconditional acceptance so as to bind the vendor.</p> <p>3. Specific Performance: Discretion of Court. “Courts of equity will not always enforce a specific performánce of a contract. Such applications are addressed to the sound legal discretion of the court, and the court will be governed, to a great extent, by the facts and merits of each case.” Morgan v. Hardy, 16 Neb. 427.</p>

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

<p>1. Criminal Eaw: Complaint: Plea in Bar. Plaintiff in error was arrested and tried in the county court. The complaint failed to charge the commission of an offense. Pending the trial, and after witnesses had been called, sworn and examined, the defect in the complaint was observed by the county attorney, who dismissed the prosecution and filed a new complaint. When the case was called for trial, plaintiff in error filed a plea in bar, setting up the proceedings under the first complaint as a bar to the prosecution. The plea was not sustained, and upon trial the county judge found plaintiff in error guilty, and committed him to the state industrial school at Kearney. Plaintiff in error appealed to the district court, where the plea in bar was again presented, demurred to by the state, and the demurrer sustained. Held, No error, the complaint first filed having failed to allege facts sufficient to constitute a crime.</p> <p>2. Infants: Commitment to Industrial School. Section 5, ch. 75, art. I, Comp. St. 1907, authorizes the commitment of a boy of sane mind under the age of 18 years to the state industrial school when found guilty of any crime, except murder or manslaughter, whether the same be a felony or misdemeanor.</p> <p>3. -: -. Such commitment is in no sense a punishment, nor is the industrial school a prison in the ordinary acceptation of that term.</p> <p>4. Criminal Law: Evidence: Admissibility. Where a demand is made upon a third person for the payment of damages resulting from an injury to a church building, and plaintiff in error indulged in language forbidden by law, upon the ground that the demand was .for an excessive amount of money as a compensation for the damage inflicted,- the question as to the actual extent of the injury or damage caused by such third party would be an immaterial one on the trial of the accused for using the forbidden language, as the fact, if true, would neither justify nor excuse the use of same.</p>

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

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

<p>1. Judgment: Process. 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. Costs. A judgment entered against the defendant for the costs made in an action, after the plaintiff has accepted payment in full of the claim on which the action was brought, is erroneous, if not void.</p> <p>3. Void Judgment: Vacating. A void judgment is, in legal effect, nothing. All acts performed under it, and all claims flowing out of it, are void. Such a judgment may be vacated at any time on motion made for that purpose by an interested party, and section 82 of our code has no reference to a void judgment.</p>

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

<p>]. Parent and Child: Emancipation: Evidence. The emancipation of a child by his parent may be proved by circumstantial evidence, or by an express agreement, or implied from the conduct of the parties. It is insufficient for a litigant to testify to the conclusion that he had been emancipated when that question is directly in issue.</p> <p>2. "Witnesses: Cross-Examination oe Fraudulent Grantee. On the cross-examination of an alleged fraudulent grantee of land purchased with the debtor’s funds, the creditor is entitled to inquire with considerable latitude to ascertain whether or not the grantee was controlled by the debtor in making the purchase.</p> <p>3. Appeal: Evidence: Harmless Error. Errors in the admission of defendant’s evidence in the trial of a creditor’s bill is without prejudice as against a creditor who has failed to establish that his debt was in existence at the time of the alleged fraudulent transfer, or that the transfer was made in contemplation of the indebtedness.</p>

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

<p>1. Judgment: Process: Jurisdiction. In this state a court does not obtain jurisdiction over the person of a defendant by issuing a summons and leaving a copy thereof at his late place of residence, and a default judgment rendered upon such service is void.</p> <p>2. Void Judgment: Collateral Attack. A judgment void upon its face may be impeached collaterally.</p> <p>3. -' — : Revivor. An order of revivor does not impart any validity to a judgment void upon its face.</p>

<p>1. Telephones: Road Crossings. The words “all road crossings,” as used in 'the second proviso of section 11963, Ann. St. 1907, refers to private as well as public roads.</p> <p>2.-; Injury: Negligence. A telephone company is guilty of negligence when it places its telephone wires only 13 feet above a road crossing, and permits such wires to become slack and to sag until they interfere with legitimate travel, when the statute requires such wires to be placed 20 feet above the road crossing.</p> <p>3. —-—: ———: Contributory Negligence. A person traveling along a road tliat Is crossed by a telephone line is not bound to anticipate danger at such, crossing, and is not required to examine or look to see if there is danger before passing under such wire.</p>

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

<p>1. Deeds: Mental Capacity: Evidence. Where it appears that a son, for nine years prior to his majority, worked in iron mills, and turned his entire earnings over to his parents, and after reaching his majority faithfully worked for and upon the farm of his parents for a period of more than 20 years without other compensation than his support, and a few years prior to her death the mother, who is then the sole surviving parent, of her own volition deeds her entire estate, consisting of a farm of 120 acres, to such son for an express consideration of love and affection and $1, and it is sought by a sister of such son, who during substantially all of said years had been a married woman living with her husband separate and apart from her parents, to set aside said deed on the ground of want of mental capacity on the part of the mother to make the same, such want of mental capacity must be established by clear and satisfactory evidence. The fact that the mother at the time of executing said deed was over 80 years of age, and the further fact that during the later years of her life she manifested some hallucinations of mind, are not alone sufficient to warrant the setting aside of such conveyance. In such a case it must be clearly established that the mind of the mother was so weak or unbalanced at the time of executing the deed that she could not understand and comprehend the purport and effect of what she was then doing.</p> <p>2. —-—: Undue Influence: Evidence. Evidence examined and set out in the opinion held insufficient to show any fraud or undue influence on the part of the defendant in obtaining the deed to the property in controversy.</p> <p>3. -: Setting Aside: Evidence. Evidence examined and set out in the opinion held sufficient to sustain the finding and decree of the district court.</p>

<p>.Appeal from the district court for Wayne county: Joi-in P. Boyd, Judge.</p>

<p>1. Forcible Entry and Detainer: Rental Value: Evidence. Where the question before the jury is at what point between $100 and $250 a month the rental value of premises wrongfully detained by defendant should be fixed, and each of the parties has introduced expert testimony upon that question, the court does not err in excluding as too remote the amount of rent fixed in a lease made two years prior to the period of the wrongful holding.</p> <p>2. -: -: Admissions. Where a lease for the term of two years provided that the tenant might at his option hold the premises for another year at an annual rental of $1,800 payable in instalments of $150 a month, the fact that the landlord at the expiration of the two years’ term stated to the tenant that it could hold the premises for another year at $150 a month .is a mere statement that the tenant had stich right under the lease, and not an admission of the rental value.</p> <p>3. -:--: Experts: Cross-Examination. A witness testifying as an expert to the rental value of real estate may be cross-examined touching his knowledge of the rental value of other property in the vicinity; but it is not error to exclude on such cross-examination his estimate of the rental value of such other property. Such estimate is not a fact, circumstance or reason upon which the witness forms his opinion as to the rental value in issue.</p> <p>4. -: Action on Supersedeas Bond: Rental Value. In an action upon a bond given upon appeal from a judgment of restitution rendered in a suit of forcible entry and detainer, the amount of plaintiff’s recovery is not confined to the value of the premises for the purpose for which they were used while so wrongfully detained, but it is entitled to recover for the highest price the premises would bring for any lawful use to which they » were adapted and for which they were available.</p> <p>5. Pleading: Misjoinder: Waiver. Where a plaintiff in an action upon an undertaking given upon appeal from' a judgment of restitution rendered in an action of forcible entry and detainer joins a cause of action against the principal and surety with one against the principal alone, such misjoinder is waived under the provisions of section 96 of the code, where no objection is made thereto by demurrer or answer.</p> <p>6. Trial: Instructions. Where witnesses called to prove the rental value of certain premises have been cross-examined concerning the rental value of other premises in the vicinity thereof, an instruction that the latter evidence is to be considered only in determining the weight to be given to the opinions expressed is not erroneous.</p> <p>7. Pleading: Amendment: Evidence. Where an amendment to a pleading is made by interlineation during the trial, the pleading as it stood before the amendment, the amendment and the pleadings as amended are part of the record of the case, and it is not necessary to offer the pleading as it stood before amendment in evidence in order to make it part of such record.</p>

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

<p>1. Carriers: Duty to Shippers. A railway company engaged in the business of a common carrier is obliged to furnish reasonably safe and suitable cars for the transportation of horses tendered to it for shipment; and, if a car offered a shipper can only he made thus safe and suitable by the use of bedding, it is the duty of the carrier to furnish that bedding.</p> <p>2. -: -. Nor is the carrier relieved of that duty by the agreement of the shipper to load and unload his stock, and to feed, water and care for it in transit.</p> <p>3. Evidence: Burden of Proof. The burden of proof to establish the affirmative of an issue involved in an action rests upon the party alleging the facts constituting that issue, and remains there until the end.</p> <p>4. Appeal: Evidence: Harmless Error. In an action for the negligent failure of a carrier to properly bed a car so that it would he reasonably safe for the transportation of stock, where the proof is undisputed that the car was unsafe because of improper bedding, testimony esteeming the custom of the carrier in preparing other cars for/iike shipments, if irrelevant, is without prejudice to defendant/</p> <p>5. Carriers: Delays: Questions eor Jury. Where the evidence tends to establish that a shipment of horses was materially delayed while the stock was in the carrier’s possession, and that the stock was in good condition when received by the carrier and injured and damaged when delivered to the consignee, it is not error to submit the question of unreasonable delay to the jury.</p> <p>6. Trial: Instructions. “An instruction, which, if standing alone, might be erroneous, may not be so when considered with other instructions upon the same subject given in connection therewith.” Lincoln Traction Co. v. Brookover, 77 Neb. 221.</p>

<p>1. Judgment in Partition: Conclusiveness. District courts have juris- ■ diction under the constitution and the code to partition real estate; and, when all of the parties interested in a tract of land are before the court in such suit, its judgment fixing the shares of the parties, directing partition, and later confirming a sale of said real estate is final, and the parties thereto, in the absence of fraud upon the face of the proceedings, are estopped thereby, although said judgment is erroneous and would have been reversed on appeal.</p> <p>2. -; Sale: Bona Fide Purchaser. A bona fide purchaser under said decree? will. be protected by section 508 of the code, even though the judgment is thereafter reversed.</p> <p>3. Partition: Jurisdiction. The failure of plaintiff to file with the clerk of the district court documentary proof of title to the land involved in partition will not deprive the court of jurisdiction.</p> <p>4. Judicial Sales: Reversal or Judgment. The word “reversal” employed in section 508 of the code contemplates a reversal in any proceeding in any court having authority to set aside the judgment.</p> <p>5. Judgment as Bar. A judgment rendered in one proceeding will not support a technical plea in bar in another, unless the same subject matter was involved in each action.</p> <p>6. -. Collateral matters winch did not properly enter into the final account of a guardian are not concluded by the judgment thereon.</p> <p>7. Guardian and Ward: Accounting: Estoppel. The guardian of K., an infant, purchased lands of his ward at a partition sale. The guardian included in his final account in the county court the purchase price for said land, a'nd the account was settled and allowed by said court. The fact that the guardian purchased at said sale without an order of the district court permitting him to bid on the land did not appear in his report, nor was it brought to the attention of the county judge by the ward, who, although present in court when said account was allowed, refused to accept said money from his guardian. Held, That the judgment allowing said account did not estop the ward from contesting the legality of the sale of his lands to his guardian.</p> <p>8. -: Purchase by Guardian: Record: Bona Fide Purchasers. In the foregoing case the conduct of the guardian was fraudulent, and the purchase by him voidable at the option of the ward ; and the record in the partition proceedings was notice of that fact to all persons claiming title under the guardian.</p> <p>9. Infants: Judgment in Partition: Impeachment. The infant upon attaining his majority could maintain an action to impeach the judgment in partition, to cancel the deed to his guardian and subsequent conveyances affecting said title, for an accounting, and such other relief as was essential to do complete justice in the premises.</p>

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

<p>Rehearing of case reported in 80 Neb. 322.</p>

<p>Error to the district court for Nemaha county: John B. Rarer, Judge.</p>

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

<p>Jury, Right to Trial by. In an action for the conversion of the proceeds of a bank check, when the conversion is denied, it is error to refuse a jury trial.</p>

<p>1. Exceptions, Bill of: Time for Settlement. A district judge is without authority, after the expiration of 80 days from the adjournment of the term of court sine die, to extend the time for settling a hill of exceptions.</p> <p>2. Taxation: Shares of Stock: Listing for Taxation. The owner of shares of stock of a domestic investment company is not required to list them for taxation under the provisions of section 10927, Ann. St. 1907, which provides: “Every person * * * shall list all his moneys, credits, bonds, or stocks, shares of stock of joint stock or other companies, when the capital stock of such company is not assessed in this state.” Such shares of stock are to be assessed under the provisions of section 10955, which expressly provides that they shall be listed for taxation by an officer of the corporation.</p>

<p>1. Fraudulent Conveyances: Good Faith: Equity. It is not competent for a creditor to receive in settlement of his debt against an insolvent debtor property materially greater in value than the debt paid thereby; but, if he does so without intending to defraud other creditors, equity will require him to account to other creditors only for the value of the property in excess of the consideration paid therefor.</p> <p>2. Appeal: Value of Property: Demand. In an action in equity pending on appeal in this court where the result depends upon the value of the property in controversy, this court will remand the case for further inquiry as to value, when it is impossible from the evidence adduced to determine the same.</p>

<p>Notes: Payment. A bank as agent for the payee of a promissory note received the maker’s cheek for the full amount thereof, marked the note “Paid,” and gave it to the maker, and immediately delivered to the maker New York exchange for $2,000, representing a part of the amount due upon the note, with the understanding and agreement of the maker that he should apply the $2,000 upon a mortgage owing by the payee. Held, That the above transaction was equivalent to a promise of the maker to pay his note by applying the amount of the New York exchange upon the payee’s mortgage, and that upon his failure to apply the same the payee may maintain an action upon the note.</p>

<p>1. Intoxicating Liquors: License: Character of Applicant. When the alleged respectable character and standing of an applicant for a liquor license is denied, it is the duty of the licensing board to consider the ignoble acts or crimes which the evidence attributes to the applicant, and from these indices to his character determine whether he is a proper person to receive a license.</p> <p>2. -: -: -. When it is proved by uncontradicted evidence that an applicant for a license during the preceding year permitted petit gambling in a place of business in his control, and even on one occasion exhibited extremely lascivious pictures, it is the duty of the licensing board to reject his petition.</p>

<p>Appeal from the district court for Colfax county: George H. Thomas, Judge.</p>

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

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

<p>1. Pleading: Capacity to Sue: Waiver. If the petition on its face discloses plaintiff's lack of capacity to sue, such defense will he waived unless raised by demurrer.</p> <p>2. Statutes: Construction. As a general rule, when a state adopts a statute from another state, it also adopts the construction which has been previously placed upon it by the courts of the state from which taken.</p> <p>3. Guardian and Ward: Sale by Guardian: Validity. Under general sections 1530, 1535 and 1536 of the Oklahoma statutes, 1893, a guardian of a minor cannot make a valid sale of a ward’s personal estate without the authorization of court, and a sale without such authority will be void and vest no title in the purchaser.</p> <p>1. -: -: Recovery prom Purchaser. In an action by a guardian of a minor to recover property of his ward from one who has purchased such property from a former guardian who had not the court’s authority to sell, it is not incumbent on the plaintiff to return or offer to return the purchase price, when, it appears that no part thereof ever came to the plaintiff’s hands, and in the absence of evidence that the purchase money was used for the minor’s benefit.</p>

<p>Deeds: Cancelation: Evidence. Evidence examined and set out in. the opinion held ample to sustain the findings and judgment of the district court.</p>

<p>Railroads: Negligence: Evidence. In an action to recover damages for the killing of an animal by a train of cars upon a railroad track, the mere fact of killing is not sufficient to establish negligence on the part of those in charge of the train. Burlington & M. R. R. Co. v. Wendt, 12 Neb. 76.</p>

<p>1. Replevin: Evidence. In the absence of any direct evidence to tbe contrary, possession is prima facie presumptive evidence of owner- ■ ship; but, when direct evidence is offered, the fact of possession loses its presumptive character, and is to be considered only in connection with .the other facts at its real probative value.</p> <p>2. Appeal: Assignments of Error, Under the practice established by the statute of 1907 (laws 1907, ch. 162), where the printed brief of the appellant particularly sets out the error in giving a specified instruction alleged to be erroneous, such error will not be disregarded because, in the assignments of error filed in this court by the appellant, the only specification of such error was that made to a group of several instructions, of which this was one.</p>

<p>1. Second Appeal: Law oe Case. Where, in an action Drought against an administratrix personally for improvements made upon the real property of the intestate, it is held that the evidence is insufficient to show that the agent actually making the contract had authority from the defendant so to do, the fact that upon a second trial it appears that the property in question Jad been set off to the administratrix as dower does not call for a different disposition of the case; the evidence regarding the agency being the same as upon the former trial.</p> <p>2. Evidence: Authority of Agent: Conclusions of Witness. The authority of an agent to execute a particular contract cannot be proved by calling as a witness a third party, and asking him who had charge of the principal’s business. Such a question calls for the conclusion of the witness, and is properly excluded upon that ground. '</p>

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

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

<p>1. County Judges: Liability for Fees. AVhere an action is brought against a county judge and his surety for a failure to report fees, in excess of the amount allowed him as compensation, earned, hut not collected, it must appear that he wilfully omitted to charge the prescribed fee with intent to evade the provisions of the act of Í877 (laws 1877, p. 215), or negligently omitted to collect such fees, or, in taking security therefor, negligently failed to require sufficient surety. State v. Hazelet, 41 Neb. 257; Hazelet v. Holt County, 51 Neb. 716; Sh'eibley v. Dixon County. 61 Neb. 409; Boettcher v. Lancaster County, 74 Neb. 148, limited and distinguished.</p> <p>2. Marriage: Statutes: Construction. The power given by section 8, ch. 52, Comp. St. 1899, to judges and clergymen to perform the marriage ceremony in this state' is permissive, and not mandatory, except as to such officers as are given fees for the performance of such ceremony.</p> <p>3. County Judges: Fees. The provisions of section 8, ch. 28, Comp. St. 1899, giving to the county judge, for any service performed by him in any matter within the jurisdiction of a justice of the peace, the same fees as are allowed by law to the justice of the peace for like services, are limited to those cases in which the county judge derives his power to perform the service solely from the grant to him of the ordinary powers and jurisdiction of a justice of the peace. It does not give him the right to charge a fee for marriage ceremonies, because the power to perform such ceremonies is not derived from such grant of the ordinary powers and jurisdiction of a justice of the peace.</p> <p>4. Statutes: Construction. Where the meaning of a statute is doubtful, long usage is a just medium by which to expound it; and the fact that the officers whose duty it was to enforce the act of 1877 (laws 1877, p. 215) have for many years construed it so as not to require a county judge to report fees received for performing-marriage ceremonies may properly he considered in construing a-statute by which it is claimed the right to such fees was given.</p>

<p>1. Physicians and Surgeons: Revocation of License: Review. An order made by tbe state board of health, under sections 9800 et seq., Ann. St. 1907, revoking for cause the license of a physician to practice medicine, surgery and obstetrics in Nebraska, may be reviewed in the district court by error proceedings under section 580 of the code. Munlc v. Frinlc, 75 Neb. 172.</p> <p>2. Constitutional Law. Sections 9800 et seq., Ann. St. 1907, do not contravene section 15, art. Ill of the constitution of the state of Nebraska, nor are they repugnant to the fourteenth amendment to the constitution of the United States.</p> <p>3. Physicians and Surgeons; Revocation of License: Pleading. In a hearing before said board for committing a criminal abortion upon a pregnant woman, it is not necessary to allege or prove that she was in any stage of uterogestation, but simply that she was pregnant of a vitalized embryo or foetus. Munk v. Frink, 81 Neb. 631.</p> <p>4. —:-:--: Conditions Precedent. A trial and conviction in a competent court is not a condition precedent to the institution and prosecution of said proceedings.</p> <p>5.-: - — : Review. In case the secretaries of the board refuse to issue supbcenas for witnesses for the defendant, or to compel witnesses to answer material questions propounded by him, or refuse to hear argument, that conduct will not be considered in the district court, unless the defendant requested the board to direct its secretaries to comply with 'defendant’s requests, and said board improperly refused so to do.</p> <p>6.--: -: Correction of Record. In case the secretaries and the board find against the defendant, but by mistake or oversight the record does not evidence their said action, said board has power to correct its record so that it will speak the truth, even though error proceedings are then pending in the district court.</p> <p>7. -: -: Affidavits as Evidence. In contested proceedings for the revocation of a physician’s license to practice medicine, it is witnin the discretion of the state board of health, and of its secretaries, to receive affidavits relating to relevant facts at issue in said hearing.</p> <p>8. -:--: Review. In said proceedings, if it appears that the state board of health has acted within its jurisdiction, and that all of the jurisdictional facts essential to uphold its final order are sustained by some evidence competent for that board to consider, its orders will be upheld in error proceedings to the district court, and on appeal to this court.</p>

<p>Libel: Defenses. The truth alone is not a complete defense in a civil action for libel, but, if the defendant justifies, he must further allege and prove that he published the alleged defamatory matter with good motives and for justifiable ends. Bill of Rights, sec. 5; Pokrok Zapadu Publishing Co. v. Zizkovsky, 42 Neb. 64; Neilson v. Jensen, 56 Neb. 430.</p>

<p>1. Telephones: Rents. A rule of a rural telephone company that telephone rent must be paid six months in advance is reasonable, and a subscriber refusing to cómply therewith is not entitled to service from the company.</p> <p>2. -: -: Counterclaim. Nor will the existence of a counterclaim or set-off asserted by the subscriber, a large part of which is exorbitant and illegal, justify him in demanding that he be given service without prepayment- of charges as other subscribers pay,</p> <p>3. -t— : -: Deductions. A telephone subscriber is presumed to know that his telephone is liable to get out of order, and, if it is situated in the country, that some time- may elapse before it can be repaired, and such subscriber is only entitled to a deduction from his bill subsequent to the expiration of a reasonable time after the company had notice of the trouble and has failed to repair it.</p>

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

<p>1. Evidence of Value: Competency. Where the value of a stock of general merchandise was in issue, it was not competent to inquire of a witness, not shown to have seen, or to know anything about the condition of, said stock, what was the fair market value of said goods.</p> <p>2. Appeal: Evidence. If the testimony is conflicting and is fairly submitted to the jury, a new trial will not be granted if there is evidence sufficient to sustain the verdict, even though this court might have reached a different conclusion from the evidence than that attained by the jury.</p> <p>3. -: Bill op Exceptions. An affidavit relating to newly discovered evidence will not be considered in this court unless included in a bill of exceptions.</p>