Volume 83 — Nebraska Reports

<p>1. Trial: Verdict: Failure to Object. In an action upon a promissory note, the execution of which was admitted, and the defense was fraudulent misrepresentations of fact and breach of warranty as to the quality of the property for the purchase price of which the note was given in part, the court instructed the jury that their finding should be in favor of plaintiff upon its cause of action for a specified sum, being the principal and interest due upon the note. The jury returned a verdict finding the amount due plaintiff to be 10 cents less than the sum named by the court in the instruction. No objection was made to the verdict, and the erroneous computation was not called to the attention of the court until after judgment had been rendered. Held, That the objection came too late; that, if the jury made an error of 10 cents in computing the interest, the attention of the court and jury should have been called to the fact,. if at all, before the discharge of the jury, in order that the verdict might be referred back and the proper computation made.</p> <p>2. Costs, Taxation of: Failure to Except: Review. The action having been instituted in the district court, and the verdict and judgment having been found and entered for $200, which was within the jurisdiction of a justice of the peace, the defendant moved the court for a retaxation of the costs, taxing plaintií' costs to it. The motion was sustained, and the costs so tf and to which no exception was taken. Held, No error, an the action of the court was final and could not be revie the supreme court.</p> <p>3. Appeal: Instructions: Harmless Error. An instruction given by a court to tbe trial jury, which, if wrong, could not have been prejudicial to the party'complaining, will not be examined upon a hearing on appeal.</p> <p>4. Instructions based upon the issues and evidence, if reflecting them correctly, are not erroneous.</p> <p>5. Appeal: Verdict: Evidence. The jury being the sole judges of the weight of the evidence, their verdict will not be set aside if sustained by any reasonable construction of the evidence.</p>

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

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

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

<p>Intoxicating Liquors: License. A movable screen maintained in tbe front of a saloon sufficient to obstruct a view of tbe interior through the door or window is a violation of the screen law. Section 7179, Ann. St. 1907.</p>

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

<p>Intoxicating Liquors: License. A screen maintained in the front of a saloon sufficient to obstruct a view of the interior through the door or window is a violation of section 29 of the Sloeumb law (Comp. St. 1907, ch. 50).</p>

<p>1, Nuisance: Injunction. It is essential to the right of an individual to relief by injunction against a public nuisance that he should show that he has suffered or will suffer some special injury other than that in which the general public shares, and the difference between the injury to him and the public must be one of kind, and not merely 6f degree. Ayers v. Citizens R.. Co., p. 26, post, approved and followed.</p> <p>2. Costs: iNJTJHCTiosr: Review. .This court will not reverse an order of the district court taxing the costs of an injunction suit to the defendant, if it appears that at the time suit was begun defendant’s failure to comply with the terms and provisions of the city ordinance constituted valid ground for injunction, and that dedefendant after the action was begun removed the ground for injunction by complying with the terms and provisions of the ordinance.</p>

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

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

<p>1. Specific Performance: When Eneobced. “Specific performance of an alleged contract will not be enforced unless the court can clearly see upon what proposition the minds of the parties have met in a common intention.” Krvm v. Chamberlain, 57 Neb. 220.</p> <p>2. -: -. Specific performance will not be enforced unless the contract has been entered into with perfect fairness,' and without misapprehension, misrepresentation, or oppression, unless it would be unjust 'and inequitable to refuse to enforce it. Morgan v. Hardy, 16 Neb. 427.</p> <p>3. -: Evidence. Evidence examined and set out in the opinion, held insufficient to establish a claim for specific performance.</p>

<p>1. Insurance: Beneficial Associations: Change in Laws. Where a fraternal benefit association has not complied with the provisions of section 1, ch. 47, laws 1897, and adopted a representative form of government, its governing body is without power to adopt a v constitution or by-law, or to amend the same, changing the terms and obligations of a mutual benefit certificate theretofore issued to one of its members.</p> <p>2. -: Benefit Certificates: Deductions. Where the constitution and by-laws of a beneficial society provide that on the death of a member the amount due on his certificate shall be ascertained by deducting from its face value the monthly assessments from the death of the member to the expiration of the life expectancy of such member at time of entry, with 4 per cent, interest thereon, and the constitution and by-laws are afterwards changed, increasing the monthly assessments to be collected, but such increased assessments are not demanded or collected from old members, but only from persons thereafter joining, and the old members continue to pay at the old rate until the death of a certificate holder, held, that the society, in settling with the beneficiaries of the deceased member, cannot decrease the amount of the recovery, but is entitled to deduct the difference between the rate of the monthly assessment in force when the certificate was issued and the increased rate provided by the amendment computed from the time when the new rate went into effect up to the date of the death of the member, and not for the remainder of the life expectancy of such deceased member.</p>

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

<p>Appeal from the district court for Adams county: Harry S. Dungan, Judge.</p>

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

<p>1. Municipal Corporations: Implied Powers: Jails. The power of a village to build a jail is necessarily and fairly implied from and incident to the power expressly granted the village to enforce its ordinances by fine and imprisonment.</p> <p>2. Nuisance: Jails. A village jail properly constructed and suitably situated, is not per se a nuisance.</p> <p>3. Municipal Corporations: Unauthorized Expenditures: Injunction. The making and publication of the estimate of expenses required by section 87, art. I, ch. 14, Comp. St. 1907, should precede the appropriation of money for village purposes; and the village board will be restrained from proceeding with an expenditure without such estimate upon the timely application of a taxpayer.</p>

<p>1. Constitutional Law: Special Legislation. Section 3 of the act of March 30, 1901 (laws 1901, ch. 93), contravenes section 15, art. Ill of the constitution of the state of Nebraska, which forbids special legislation, as well as section 1 of the fourteenth amendment to the constitution of the. United States, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws, in that the acts thereby prohibited are made criminal only when committed against citizens or residents of the state of Nebraska.</p> <p>2. -: -. The rule that a court will no.t listen to an objection made to the constitutionality of a law by a party whose rights it does not affect is inapplicable to a case where the vice of the law consists in an unwarranted discrimination between the individuals against whom the aggression thereby forbidden is committed.</p>

<p>1. Appeal: Reversal. Where a general verdict is. set aside for errors occurring at the trial, no part of such verdict can he left to stand; hut a new trial must he awarded upon all the issues of fact.</p> <p>2. Witnesses: Privileged Communications: Waiver. Where a party voluntarily testifies in open court to conversations between himself and his attorney, he waives the right to have such communications considered as privileged, and the attorney thereupon becomes a competent witness to testify concerning the matters so disclosed by the client.</p> <p>3. Principal and Agent: Creditor oe Partnership. Where a creditor seeking to recover the payment of a debt from a partnership asks one partner to consult with his copartner, he does not thereby make the partner with whom he talks his agent, and, if such partner voluntarily makes false statements to his copartner, the creditor is not bound thereby, nor estopped to deny the same.</p> <p>■4. Fraud: Instructions. In an action to recover for fraud alleged to have been practiced by a promise made with the secret intention of not performing the same, an instruction that the plaintiff must establish not only that the promise was made, hut that the same was made deceitfully with intention to defraud plaintiff, does nüt impose too great a burden of proof upon the plaintiff when the jury are at the same time told that, in order that the promise shall be deceitfully made, it must appear at the time of making such promise that the defendant had no intention of complying with the same.</p> <p>5. -: -: Damages. Where the mortgagee of a stock of goods sold the same in hulk, and the mortgagor brings an action against such mortgagee to recover the difference between the price at which the goods sold and their market value, on the ground that the mortgagee obtained the mortgage by fraudulent promises which he did not intend to perform, it is not error to instruct the jury upon the measure of damages that they should consider the value of the stock if sold in bulk, and not the price at which it might be sold at retail.</p>

<p>Adverse Possession: Evidence. Plaintiff and defendant in ejectment claimed title from a common source. Defendant secured his title subsequent to the conveyance to plaintiff, but prior to the date plaintiff’s deed was recorded. Defendant did not prove that his deeds or any of the conveyances in his chain of title subsequent to the deed to plaintiff had been recorded, nor prove the consideration paid by him therefor. As to one tract, he proved that for ten years next preceding the commencement of this suit a corn-crib had been built and maintained on said block by his grantors and himself, but did not prove that any other part of the block had been occupied by them, nor that said crib had not been built with plaintiff’s permission. As to the other tract involved in the suit, defendant proved that it had been inclosed for more than ten years before the commencement of the suit, and occupied and used by different individuals during that time, but did not prove that he had succeeded to the possession of all of said occupants. Held, That the evidence did not sustain a judgment for defendant.</p>

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

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

<p>Intoxicating Liquors: License: Sales to Minors. Where on the hearing of a remonstrance against the granting of a liquor license it is satisfactorily proved that the applicant has within a year sold or given to a minor malt or spirituous liquors, he is not ■ entitled to a license, and his application should he denied.</p>

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

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

<p>Appeal from the district court for Adams county: George F. Corcoran, Judge.</p>

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

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

<p>Primary Elections: Contests: Jurisdiction. The district courts are without power to consider and determine an original action instituted for the purpose of contesting the nomination of a legislative candidate at a primary election.</p>

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

<p>1. Evidence at Eormer Trial: Diligence. To entitle a party to reproduce the testimony of a witness given on a former trial, he must show that, by exercising reasonable diligence, he has been unable to secure the attendance of such witness at the trial.</p> <p>2. -: Admissibility. An attorney who took part in the former trial of a cause and heard the' testimony of a witness given therein, but is unable to remember his evidence or the substance of all that the witness testified to, both on direct and cross-examination, is not competent to reproduce the evidence of such witness; and the fact that he made notes of a part of the evidence, from which he can only partially refresh his recollection, does not render him competent.</p>

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

<p>1. Executors and Administrators: Appeal: Final Order. The appellant, who was administrator of one estate and guardian of two others, in which the same persons were interested, intermingled the funds and accounts of said estates. He filed a final report applying to all three of the estates in the county court, which made findings and an informal order thereon. Afterwards, he filed a supplemental report in connection with and based upon his former report and upon the findings of the county court. Separate appeals were taken to this coúrt from both orders. The appellant objected in the district court that the first order was not a final order and not appealable, and also that the second order, wMcb. is set forth, in the opinion, was not a final order. Held, i.l) That, whether the first order-was final or not, the adoption of the first report and findings in the supplemental report carried the whole accounting forward into the second order which terminated the matters in issue, and that an appeal from this order brought up the whole record; (2) that the second order was final and appealable.</p> <p>2. ■-: -: Transcript. Where a partial transcript on appeal from the county court was filed in the district court within the statutory time, it was not error for the district court to allow a portion of a transcript in the same case, which had formerly been filed in the district court, to be attached thereto and made a pa-t thereof.</p> <p>3. Costs: Separate Appeals. Where separate appeals are filed in the district court and the cases are consolidated, the costs of the several transcripts are properly taxed against the losing party, since each transcript is necessary to the appeal.</p>

<p>1. Homestead: Accounting by Survivor. A widow need not account to the estate of her husband for the rents and profits of their homestead which have accrued subsequent to his death.</p> <p>2. Executors and Administrators: Inventory. The inventory filed by ■ an executrix is not conclusive, but is open to explanation or denial.</p> <p>3. -: Accounting. The executrix will not be given credit in her account for money expended for her personal advantage concerning said estate.</p> <p>4. -: Allowance to Widow. The widow of a testator is entitled, under subdivision 1, sec. 176, ch. 23, Comp. St. 1905, to the chattels therein specified, and- also to $200 in cash from her husband’s estate, and said property is not assets of the estate in the hands of the executor.</p> <p>5. -: -: Final Order. F. by his last will and testament, which was duly probated, devised all of his property to his wife during her natural life, and named her as executrix, with succession in said office to a son after her death. Subsequent to that time said property is to be sold and the proceeds divided among four devisees. More than a year subsequent to her appointment as executrix the widow applied to the county court for maintenance from said estate. Notice was not given of the filing or presentation of said application, nor was the time for the settlement of said estate extended. The court allowed $25 a month, pending said settlement, to be paid from the assets of said estate. Thereafter a devisee secured a modification of said order so that from said date the allowance was to be paid only out of the income from said estate. An appeal was not prosecuted from either of said orders. Held, That the order as modified was valid, binding all persons interested in said estate.</p> <p>6. Cases Reviewed. Estate of James v. O’Neill, 70 Neb. 132, distinguished, and Rieger v. Behaihle, 81 Neb. 33, approved.</p>

<p>Animals: Trespass: Defense: Damages. In a suit for damages to crops injured at different times by trespassing animals, defendant may plead and prove a partial defense extending to damages resulting from plaintiff’s negligence and breach of contract to repair fences, and plaintiff may recover other damages for which defendant is liable, where the evidence contains proper data for admeasurement thereof.</p>

<p>1. Special Administrators: Appointment. Under section 5045, Ann. St. 1907, whenever it is made to appear to the prohate court that for any reasonable cause the interests of an estate pendipg in said court demand action by some one authorized to act prior to the time when letters testamentary or of administration can he issued, it is the duty of such court to appoint a special administrator to act in collecting and taking charge of the estate until an executor or administrator has been appointed.</p> <p>2. -1 — : -: Notice. And in such a case said court may appoint such administrator immediately, and without notice to the heirs or devisees of the deceased.</p>

<p>Brokers: Vo.d Contract: Quantum Meruit. Where a contract for the sale of real estate between the owner thereof and a broker employed to sell the same is void bcause not in writing, as required by section 10856, Ann. St. 1907, the broker cannot recover on a quantum, meruit for services rendered in accordance with such contract, nor for the value of his time expended in that behalf. Barney v. Lastmry, 76 Neb. 701, followed.</p>

<p>1. Evidence on Former Trial: Absence of Witness. Where it is apparent that the sheriff made an honest effort to serve a subpoena, and was unable to do so on account of the absence of the witness from the state, such information being given by those m a position to know, it is not error to allow the evidence of the absent witness given at a former trial of the case to be read to the jury; the party desiring the presence of such witness having taken timely steps to secure his attendance by compulsory process.</p> <p>2. Trial: Offer of Proof. No error is committed in rejecting an offer of proof not within the limits of the question on which the offer is based.</p> <p>3. Appeal: Exceptions. In order to save a question for review in this court, an exception must be taken to the ruling of the trial court of which complaint is made.</p>

<p>1. Bastardy: Warrant: Abatement. That a warrant issued for the arrest of the putative father of a bastard is not directed to the sheriff, coroner, or constable of the county is not a cause for abating the action in the district court where the question was not raised before the examining magistrate.</p> <p>2. -: Continuance: Jurisdiction. The examining magistrate does not lose jurisdiction of the case by granting a continuance of the hearing on the request of the defendant.</p> <p>3. Appeal: Evidence. This court will not disturb a judgment based on conflicting evidence where the evidence sufficiently supports the judgment.</p>

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

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

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

<p>Railroads: Injury to Persons: Contributory Negligence. Defendant in error’s intestate, while driving on the public road, parallel with the railroad track of the plaintiff in error, upon a moonlight night, left the public road and went diagonally toward the railroad track, and over the side of a cut, where he, with his wagon box and a load of lumber, were thrown upon the track. A train soon after struck the obstruction, and he was afterwards found mangled upon the track. There is no evidence'indicating that his team ran away or became unmanageable, but the evidence shows that he was much intoxicated a short time before the accident. Meld, That the deceased was guilty of such contributory negligence as to preclude a recovery, though the railroad was not fenced at the locality of the accident, as by law it was required to be. Union P. R. Oo. v. Smith, 5 Neb. (Unof.) 631, followed and approved.</p>

<p>Statute of Frauds: Sale oe Real Estate: Memorandum. Where the owner of an entire city lot signs a written memorandum of sale in which the property is described as the north-feet of such lot, the memorandum is insufficient under the statute of frauds, 'and a specific performance thereof will not be enforced.</p>

<p>1. Specific Performance: Renewal of Lease: Description of Property. In an action brought to compel the specific performance of a covenant to renew a lease', the fact that the description of the property in the lease is indefinite will not defeat the plaintiff’s right to have the same' specifically performed, where it appears that both parties have, without question, acted under said lease, the defendant surrendering, and the plaintiffs accepting, certain specified property as being the property described in said lease.</p> <p>2. Partnership: New Partner. While the sale of his interest to a stranger by one member'of a partnership does not make such stranger a member of the firm, there' is no rule of law forbidding all the members of a firm from agreeing to admit a new member as a partner therein.</p> <p>3. Statute.of Frauds: Partnership: New Partner. Where by agreement between all the partners a new member is admitted to the firm, he acquires an interest in the partnership property by operation of law; and such transfer is not within the statute of frauds.</p> <p>4. Specific Performance: Lease: Renewal by Partnership. In an action by a partnership for the specific performance of a covenant to renew a five-year lease, it is immaterial that at certain times during the first term of said lease other persons held an interest in said partnership, where the persons who constituted the partnership at the time of demanding such renewal are the same persons who were members of the firm at the time of the execution of the lease.</p> <p>5. Estoppel: Lease: Acoeptance of Benefits. Where a lessor has accepted the benefits of a lease made by him to a partnership, he cannot, in an action by such partnership to enforce the specific performance of a covenant to renew, plead that the partnership was without capacity to take the legal title to real estate.</p> <p>6. Specific Performance: Remedy at Law. Where a plaintiff purchases a stock of goods and the good will of a business, at the same time taking a lease of the premises in which said business has been carried on, for a term of years, with an option to renew at the end of said term, lie is not confined to an action at law for damages in case of the landlord’s refusal to fulfil the cove-ant to renew, hut may maintain an action in equity for the specific performance of such covenant.</p>

<p>1. Attorneys: Disbarment. TRe defendant, an attorney, dictated a form of affidavit in tRe presence and Rearing of tRe witness, and wRicR was assented to Ry Rim and taken in sRortRand Ry a stenograpRer, witR tRe understanding tRat tRe statement was to Re typewritten aRove a signature made Ry tRe affiant on a Rlank sReet of paper. Upon later consultation witR associate counsel and a statement to Rim of tRe facts as tRey Rad occurred, tRe associate not Reing present at tRe time of tRe dictation, it was tRougRt tRe affidavit did not sufficiently detail tRe transaction. TRe associate counsel dictated additional statements, and to wRicR a furtRer statement was added Ry defendant, wRicR was proRaRly true, Rut not known so to Re Ry tRe witness, togetRer witR tRe statement tRat tRe affidavit was made in tRe presence of tRree otRer persons, wRo were not present at tRe time of tRe dictation. TRe reformed affidavit was given a notary, witR instructions to find tRe' parties and procure tRe signature of tRe affiant. TRe notary attacRed Ris jurat and seal and Randed tRe paper to anotRer, witR instructions to find tRe proposed affiant, Rut Re was not found. TRe affidavit afterwards appeared witR tRe name of tRe affiant erased wRere written Ry Rim and placed at tRe end of tRe extended instrument. TRe paper was originally intended for use on tRe Rearing of an application for an interlocutory order Ry tRe district court in a cause tRen pending, Rut was never so used, nor was any attempt made to use it. CRarges were presented against tRe defendant, Ry wRicR Re was accused of an effort to deceive and practice a fraud upon tRe court and of causing a false, forged and untrutRful affidavit to Re made. Held, TRat in tRe aRsence of any attempt on tRe part of defendant or any otRer person to make use of sucR paper, and upon a consideration of all tRe evidence introduced upon tRe Rearing .of tRe disRarment proceedings, tRe' conduct of defendant, wRile not to Re commended, was not sucR as to warrant a judgment of disRarmept or suspension from practice,</p> <p>2. Witnesses: Privileged Communications. Upon the bearing of the disbarment proceedings, an attorney who was associated with defendant in the principal suit was called to the witness stand by the prosecution and detailed facts within his knowledge as to the conduct and statement of defendant in their consultations concerning said affidavit and its use in the principal case, and also the conversations and statements of their client upon the same subject. Held, That the testimony did not divulge any communications which were privileged by law.</p>

<p>1. Assault and Battery: Action fob Damages: Instructions. In an action for damages for an assault and battery, wherein it was claimed by each of the parties that the other was the aggressor, and by the defendant that what he did was in self-defense, it was not error for the court to instruct the jury, among other things, that the right of self-defense did not imply the right to attack, or to voluntarily enter into an affray, nor to use more force than was necessary for his defense, and that the question as to who provoked the difficulty or made the first assault was for the jury to decide under the evidence.</p> <p>2. Trial: Instructions: Construction. In construing instructions upon any given proposition, all instructions bearing upon the same should be construed together as a whole.</p> <p>3. Assault and Battery: Right of Recovery. Where two persons engage voluntarily in a fight either can maintain an action against the other to recover the actual damages for the injuries he may receive, and the fact that the combat was by agreement or mutual consent of the parties to it is no defense.</p> <p>4. —--: Evidence. Immediately after an encounter between plaintiff and defendant, the plaintiff’s hat was picked up near where he fell, and was introduced in evidence upon the trial, showing a break or rent at a place which, when worn, would be over or near the point of injury upon plaintiff’s head. The identity, condition and possession of the hat were shown by evidence preliminary to its introduction. Held, That the admission of the hat in evidence was not erroneous.</p> <p>5. Appeal: Harmless Error: New Trial. After the conclusion of the instructions by the court to the jury, and upon the jury retiring from . the courtroom to deliberate upon their verdict, one of the jurors, by mistake and inadvertence, picked up the hat which had been introduced in evidence and carried it into the jury room, where it remained until the next day, when it was removed by a bailiff and returned to the courtroom. The evidence adduced upon the motion for a new trial showed that the hat was taken by mistake, and that little, if any, attention was paid to it by the jurors; that it was upon the table around which the jurors assembled, and used as a ballot box a part of the time; that it was not used in any way for the purpose of influencing, the minds of the jurors, and did not influence them. Held, That the taking of the hat to the jury room, under the circumstances, was an irregularity, but without prejudice to the defendant.</p>

<p>1. Rape: Evidence: Corroboration. In a prosecution for the crime commonly called statutory rape, where the prosecuting witness testifies positively to the facts constituting the crime, and the defendant as positively and explicitly denies her statements, her testimony must be corroborated by facts and circumstances established by other competent evidence in order to sustain a eon- . viction.</p> <p>2. Evidence examined, its substance stated in the opinion, and held, not sufficient to sustain the verdict.</p>

<p>1. Executors and Administrators: Claims: Evidence. C., an aged man, who was afflicted with an incurable disease, agreed with R. that if she would -remain in hi’s home as his housekeeper, companion and nurse, and care for and nurse him until his death, he would pay, or cause to be paid, to her, $1,000 in addition to the wage he was then paying her, which was $2 a week. He reduced his agreement to writing and signed the same. She accepted its terms and fully performed its obligations on her part. He accepted her services until his death, which occurred nearly a year thereafter. Held, That this created a debt against his estate, and that the writing could be received in evidence as tending to prove the agreement.</p> <p>2. Trial: Writing: Delivery: Question eor Jury. One of tbe defenses interposed by those interested in tbe estate was- nondelivery of the writing. The plaintiff having produced some competent evidence tending to prove a delivery, the court submitted that question to the jury under proper instructions. Held, That this furnished the defendants no ground for complaint, and the • court did not err in refusing to instruct the jury to return a verdict for the defendants.</p> <p>3. Witnesses: Transaction With Decedent: Waiver. The defendants reproduced in evidence, as tending to show nondelivery, a part of the plaintiff’s testimony, given without objection on the hearing upon her claim in the county court, relating to a part of the transacton which took place between her and- the deceased when the agreement in question was made. Held, That they thereby waived the protection afforded the estate by section 329 of the code, and that the plaintiff was entitled to reproduce the rest of her former evidence as to that particular transaction.</p>

<p>1. Criminal Law: Assignment of Errors: Motion for New Trial. In a case brought to this court by a petition in error, exceptions to the giving or refusing of instructions will not be considered unless such rulings are specifically assigned in the motion for a new trial.</p> <p>2. Witnesses: Cross-Examination. The rule' that the right to cross-examine a witness is confined to matters brought out in his direct examination, obtains in a criminal prosecution the same as in a civil action, and a defendant in such prosecution will not be permitted to 'prove matters of defense upon the cross-examination of a witness for the state, where such matters are not brought out or suggested by the direct examination.</p> <p>3. Intoxicating Liquors: Keeping for Unlawful Sale: Evidence. In a prosecution for a violation of the provisions of section 7170, Ann. St. 1907, making it a crime for a person to keep and have in his possession intoxicating liquor for the purpose of unlawful sale, the state chemist, who analyzed the' liquor found in the defendant’s possession, is a competent witness to testify as to the per cent, of alcohol contained therein, and, where such liquor is designated in the information as an intoxicating liquor called “beer,” it is competent for such witness to give the amount or per cent, of alcohol contained therein, and the amount or per cent, of alcohol contained in the different kinds of beer commonly sold and used in this state.</p> <p>4. Witnesses: Cross-Examination: Incrimination. Where a defendant in a criminal case testifies in his own behalf, he is subject to the same rules of cross-examination as any other witness, and may be required to testify on his cross-examination as to ■ any matters brought out or suggested by him on his direct examination, and ordinarily he cannot avail himself of the objection that the evidence may incriminate him.</p> <p>5. Intoxicating Liquors: Unlawful Sales: Evidence. Where it is shown in a criminal prosecution that certain liquor has been sold by the defendant from time to time as a beverage, it is competent for the state to prove that during such time certain persons had been seen in an intoxicated condition in the defendant’s place of business as tending to show that the liquor so sold was intoxicating in its effect.</p> <p>6. Indictment and Information: Separate Counts: Election. In a criminal prosecution, -wiiere two or more counts are properly joined in an information, and there is evidence tending to prove the facts alleged in each of them, the state will not be required to elect upon which of the several counts it will rely for a conviction.</p>

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

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

<p>1. Criminal Law: Robbery: Evidence. In a prosecution for robbery, it was proper for the state to prove that in the afternoon of the day that deceased was killed and robbed, and preceding the time he left his abode for the city where he was killed, he had considerable money in his possession, even though no part thereof is traced into the possession of defendant.</p> <p>2.-: Review. An answer responsive to a question should not be stricken from the record.</p> <p>3. -: Trial: Discretion of Court. It is within the discretion of the trial court to permit a witness used by the state on rebuttal to testify, even though all witnesses were ordered excluded from the court room, and said witness had not obeyed the rule.</p> <p>4. -- — : Motion for New Trial: Amendment: Review. This court will not review an order made by a district court refusing a defendant permission to file an amendment to his motion for a new trial, where such application is made more than three days after the return of verdict.</p> <p>5. -: Instructions: Confessions. A statement freely and voluntarily made by a defendant not induced by "threats or promises, wherein he admits that he had participated in the main facts essential to constitute the crime for which he is being tried, may properly be referred to by the court as a “confession.”</p> <p>6. -: -: Review. If the evidence does not tend to prove that defendant, at the time he committed the acts complained of, was intoxicated to such a degree as to interfere with his judgment and, understanding, and defendant testified clearly and plainly to the transaction, and claimed that he acted in self-defense, this court will not examine an instruction whereby the trial court submitted to the jury the defense of intoxication.</p> <p>7. -: Confessions. The court may permit a police officer to testify concerning statements made to him by defendant, even though such defendant at said time was handcuffed and in the custody of said officer, where it is apparent that the statement was voluntary, and not induced by threats or promises.</p> <p>8.-: Viewing Premises: Discretion of Court. It is entirely within the discretion of the trial court to order, or refuse to permit, the jury to inspect the scene of the alleged crime.</p>

<p>1. Criminal Law: Service of Copy of Information: Waiver. An information was filed with the clerk of the district court charging that F. had committed a felony, and the same day he pleaded not guilty. A copy of said information was not delivered to F., hut thereafter he procured an order of the court for compulsory attendance of witnesses and permission to take depositions. Three months later a jury was impaneled and sworn in said case, and after the state had called a witness and propounded three questions, F. for the first time objected that he had not been furnished a copy of said information. Held, That the court did not err in overruling said objection.</p> <p>2. --: Counsel: Appointment After Plea. The court did not appoint an attorney for. F. until after he had entered his plea of not guilty. Held, That it was not error to thus receive said plea.</p> <p>3. New Trial: Misconduct of Jury. After submission of the case, and while the jurors were in charge of a bailiff, five of them were permitted to remain in a room with locked doors, and the remaining seven were taken by said bailiff to a toilet room. One of said jurors returned in advance of his companions. It affirmatively appeared that no one approached any of the jurors or communicated with them concerning said case. Held, Not misconduct of the jury or irregularity in the proceedings sufficient to justify a new trial.</p> <p>4. Robbery: Evidence: Sufficiency. The evidence disclosed that defendant and one S. were strangers to each other until December 5, and that after dark of said day they were together at a small railway station; that each to the knowledge of the other had a small sum of money; that defendant demanded that S. should “dish up” or “divy up,”' saying also “hands up,” and received two or three silver dollars which S. handed to him. Held, That a verdict of guilty of robbery from the person is sustained by the evidence, although S. later attacked and wounded defendant and recovered his money, and the evidence further established that each party was at said time somewhat under the influence of intoxicating liquor.</p>

<p>1. Criminal Law: Information: Joinder: Election. If the state joins in one information three separate counts, charging robbery, assault with intent to commit robbery, and an assault with intent to do great bodily harm, and all counts refer to the same transaction, the defendant is not prejudiced if, before he introduces any evidence and as soon as the matter is brought to the court’s attention, it compels the state to elect whether to prosecute on the first and second or upon the third count.</p> <p>2. - — : Motion fob New Tbial: Amendment: Review. More than three days after the return of the verdict defendant by leave of court complained of the court’s failure to give an instruction tendered by defendant. He did not claim that he was unavoidably prevented from including said assignment in his motion for a new trial, which was filed within time. Held, That the refusal 'of the court to grant a new trial for any reason set out in said amendment will not be reviewed in this court.</p> <p>3. -: New Trial: Newly Discovered Evidence. A new trial will not be granted for newly discovered evidence that is cumulative, unreasonable and incredible, and was known before trial to defendant’s brother, who was in the county and immediate neighborhood of the crime at the time it was committed and until trial.</p> <p>4. -: Evidence: Identification of Accused. Where the complaining witness positively identified the accused as his assailant, and his testimony is sustained by many facts established by disinterested witnesses and the subsequent conduct of the accused, the verdict will not be set aside because of defendant’s denial corroborated by an alibi sought to be established by the testimony of a nephew and niece.</p>

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

<p>1. intoxicating Liquors: Action for Damages: Pleading: Evidence. In an action against the vendors of intoxicating liquors to recover damages suffered from the acts of an intoxicated person, it is sufficient, under the provisions of section 7168, Ann. St. 1907, to plead and prove that the defendants sold or gave intoxicating liquors to the intoxicated person, from whose act the damage arose, on the day or about the time the injuries to the plaintiff were received. In such cases the statute by its terms supplies allegations and proofs required in other actions for damages.</p> <p>2. —-: -: Instructions. In an action for loss of means of support caused by the death of a person, it is error for the court to instruct the jury that such loss began upon the death of the deceased person, and would continue as to one of the defendants “until such time as he would have lived had he been permitted to reach the end of his natural life, as indicated by the tables of expectancy, which have been introduced and received in evidence in the case,” and especially is this true when there is tesimony in the case tending to show a serious injury suffered by the deceased previous to any sale of liquors made by the defendants, and which would naturally tend to shorten his life or to cause his insanity.</p>

<p>1. Appeal: Questions Considered. Where a judgment of the lower court and the disposition of the case in this court are not prejudicial to the interests of an appellant, this court will not consider an assignment of error that the lower court had no jurisdiction over the person of the appellant.</p> <p>2. County Court: Jurisdiction: Title to Real Estate. The provision of section 16, art. VI of the constitution barring the county court from jurisdiction of actions in which title to real estate is sought to be recovered or may be drawn in question does not apply to cases wherein the title to realty is involved as an incident to an important litigable question of which that court has exclusive original jurisdiction.</p> <p>3. Wills: Construction. In the construction of a will, the court will presume that the testator intended the will as a consistent whole, and will consider it in its entirety, its several parts with reference. to each other, to ascertain, if possible, the meaning which the testator attached to any part thereof.</p> <p>4. Executor as Trustee: Title to Real Estate. An executor, as a trustee, cannot hold the legal title to land devised for the use of the beneficiary, unless the testator has by his will expressly or impliedly created in him a trust estate other and different from that of executor, or unless a trust is made necessary that the intentions of the testator may be executed.</p>

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

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

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

<p>Cancelation of Instruments: Evidence. Evidence examined and discussed in the opinion, held sufficient to sustain the judgment of the district court.</p>

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

<p>Appeal from the district court for Lancaster county: Edward P. Holmes, Judge.</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>1. Appeal: Instructions. It Is reversible error to instruct a jury on an issue not sufficiently raised by the pleadings, and which is unsupported by the evidence, where it is apparent that such instruction has resulted in an excessive verdict.</p> <p>2. Principal and Agent: Action for Commissions: ' Contract: Construction. Where, in an action by an agent against his principal to recover money alleged to be due on commissions, it clearly appears that the parties have adopted a fair and reasonable construction of their contract and have acted thereon for a number of years, the court will also adopt such construction.</p> <p>3. Appeal: Judgment: Remittitur. Where the adoption of such construction results in reducing the question of the amount of plaintiff’s recovery to a mere matter of computation, this court may make such computation, and require plaintiff to file a remittitur of the excess of the judgment rendered, in the trial court over the amount he was entitled to recover, or submit to a reversal of his judgment.</p>

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

<p>Landlord and Tenant: Lien on Crops: Sale: Bona Fide Purchaser. In an action in equity by a landlord to establish a lien by contract upon the proceeds of the sale by the tenant of certain crops in the hands of a grain dealer, evidence examined, and held to sustain the finding of the trial court that the buyer paid the purchase money to the tenant without notice of the plaintiff’s claim.</p>

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

<p>1. Trial: Instructions: Evidence. In this an action for personal injuries alleged to have been occasioned by the derailment of a street car, whereby the plaintiff was thrown from the car and thereby injured, the defendant pleads contributory negligence, in' that the plaintiff was negligently standing upon the running board of the car at the time of the accident, and his injuries resulted from such negligence. Held, That it was not error to refuse an instruction that if the jury believe from the evidence that the plaintiff was not thrown from the car, but that he attempted to get off the ear when it was in motion, and fell into the street, their verdict should be for the defendant, since such an instruction is neither within the issues made by the pleadings nor the evidence in the case.</p> <p>2. -: -: Construction. Instructions should be cqnsidered together. Separate clauses or parts of a sentence should not be separated from the context in order to arrive at the true meaning of the language, but all that is said upon the particular subject is to be taken.</p> <p>3. Appeal: Evidence: Harmless Error. A witness testified that- the plaintiff “was thrown from the car,” hut he testified later that he clid.not see the plaintiff until he was lying on the ground. A motion to strike his answer as being merely a conclusion of the witness was overruled, and exception taken. Held, That, while the answer should have been stricken, the error was not prejudicial, since the jury could not have been misled by the testimony.</p>

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

<p>1. Waters: Obstructions by Railroad. A railway company in constructing its road filled in a ravine and substituted another way for flood waters that would otherwise pass down said watercourse. Subsequent to such construction it became apparent that the artificial watercourse did not have the same capacity as the ■natural one. Held, That the railway company was bound to know that excessive rains might occur at any time and damage result as a consequence of the inadequate provisions made by it as foresaid.</p> <p>2. -: -: Liability of Lessees. That a lessee of the original owner and builder of said road is also charged in law with notice of said conditions and liable for damages resulting from its failure to exercise reasonable diligence to protect adjacent landowners from the consequences of its neglect.</p> <p>3. Appeal: Instructions. A new trial will not be granted because instructions are somewhat confusing and contradictory, where they are favorable to the defeated litigant, and evidently did not mislead the jury.</p>

<p>1. Criminal Law: Venue: Waiver. The constitutional right to a trial before a jury of the county where the crime is alleged to have been committed is a mere personal privilege of the accused which he will waive, if the venue is changed at his request, without objection, and he appears without protest, and goes to trial and for the first time objects in the supreme court, although the venue is not changed to an adjoining county. State v. Orinlclaw, 40 Neb. 759.</p> <p>2. -: Review: Presumptions: Selecting Jury. Error is not presumed, and this court will not reverse a conviction because of alleged error in overruling challenges to jurors .for cause, and because it is claimed that defendant exhausted his peremptory challenges on jurors who should have been excused for cause, where the record does not affirmatively support such assignment. Shurmoay v. State, 82 Neb. 165.</p> <p>3. Homicide: Instructions. K., after a fist fight with 0., drew a revolver and fired twice at his antagonist, who grappled with him, and during the struggle the weapon while in K.’s hand was discharged and C. mortally wounded. The court fully instructed the jury concerning all of the degrees of homicide and the subject of self-defense. Held, That, if K. did not act in self-defense1 but purposely and unlawfully in presenting his firearm and shooting at C., the last shot would refer back to the purpose with which K. commenced to shoot, and that he was not entitled to an instruction on the theory that the killing was accidental.</p> <p>4. -: ———; Instructions criticised by defendant examined, and held to present the law of self-defense to the jury.</p> <p>5. -: Misconduct of Attorney. Alleged misconduct of an assistant prosecuting attorney held not to have been prejudicially erroneous to defendant.</p> <p>6. -: Trial. It is the province of the district court to regulate the course' of business during the progress of trials, and, during the term, to control its own sittings, and an order made compelling counsel for defendant in a criminal case to argue said cause at night, unless it clearly and unmistakably appears that defendant was prejudiced thereby, will not entitle defendant to a new trial.</p> <p>7. -■ — : New Trial: Limitation of Argument. An order of the court limiting counsel for the state and defense in a murder trial to two hours and fifteen minutes on a side within which to present their arguments will not justify this court granting a new trial, and especially where the record does 'not disclose that at the end of the time limited counsel requested an extension of time.</p> <p>8.-: -: Reproof of Counsel. It is the duty of counsel to obey the instructions of the trial court to not interrupt opposing counsel while he is propounding questions to a witness, and, if counsel is contumacious, the court may, with propriety, threaten to discipline1 him, and such fact will not so impede the course of justice as to entitle defendant to a new trial.</p>

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

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

<p>Descent and Distribution: Jurisdiction. The district court is without original jurisdiction to distribute the funds of an estate of a deceased person.</p>

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

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

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

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

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

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

<p>Appeal from the district court for Cass county: Harvey D. Travis, Judge.</p>

<p>Error to the district court for Kearney county: Harry S. Dungan, Judge.</p>

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

<p>Rehearing of case reported in 80 Neb. 432.</p>

<p>Appeal from the district court for Adams county: Harry S. Dungan, Judge.</p>

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

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

<p>1. Counties: Contracts. G. county was engaged in litigation in the district court involving fraud in bridge contracts. The county hoard adopted a resolution authorizing the county attorney to call to his assistance competent persons to examine the bridges and check up the claims which had been allowed and were pending on bridge contracts in that county for the preceding four years. He called to his aid one P., who was at that time county surveyor. The services were performed, and P. filed a claim with the county hoard for payment therefor. His account was allowed. B., a taxpayer, appealed from the order of allowance to the district court. The claimant there had judgment. On appeal to this court, held, that the transaction was not within the inhibition of section 4469, Ann. St. 1907, and that the claimant was entitled to recover the value of his services.</p> <p>2. Case Distinguished. Wilson v. Otoe County, 71 Neb. 435, distinguished.</p>

<p>Appeal from the district court for Cedar county: An-son A. Welch, Judge.</p>

<p>1. Appeal: Pleading: Overruling Motion: Harmless Error. If the petition in an action upon a policy of insurance or a benefit certificate purports to set out a full copy of the instrument upon which the action is predicated, and the recitals of the copied portion show that the whole contract is not contained in the petition, a motion to require the plaintiff to set forth the whole contract is proper and should be sustained. But where it is shown that the missing portion is in the possession of the defendant, then the rule, “less particularity is required where the facts are within the knowledge of the adverse party,” applies, and the error, if any, in overruling the motion is without prejudice.</p> <p>2. Pleading: Reply: Amendment After Trial. In a trial to the court without the intervention of a jury, after all the evidence had been taken and the case submitted, the plaintiff was given leave over objection of defendant to file an amended reply, pleading an additional defense to the new matter in the answer “to conform to the proof.” No request was made for further time or to be permitted to introduce further proof. Held, That the matter of allowing the amendment was within the discretion of the district court, and that no abuse of this discretion has been shown.</p> <p>3. Insurance: Plea of Forfeiture: Burden of Proof. The burden of proof is upon the -defendant to establish a plea of forfeiture in 'an action upon an insurance policy or a benefit certificate, and in this case the evidence is examined, and field to sustain the judg-. ment of the district court.</p>

<p>1. Trial: Verdict. A jury brought in a sealed verdict, which, upon being opened, was found to be defective in form. On the direction of the court, they again retired to the jury room and returned a verdict' in the same amount and against the same parties as before, but in proper form. Held, That the failure to receive the first verdict and the receiving of the second was not erroneous.</p> <p>2. Intoxicating Liquors: Damages. In an action brought by a wife to recover damages under the statute governing the sale of intoxicating liquors where the husband died as a result of the traffic, loss of means of support is not the only damage for which a recovery may he had, but the wife may recover the cost of the necessary medical attendance paid by her and funeral expenses necessarily incurred by her in procuring the burial of her husband, when such items of damage are alleged and proved.</p>

<p>1. Appeal: Pleading: Amendment. If tbe identity of the cause of action or ground of defense is preserved, a petition or answer may be amended on appeal to tbe district court.</p> <p>2. -: Taking Case F*rom Jury: Waiver. At the close of the evidence each party requested a directed verdict in his favor, and neither party requested ,a submission of the case to the jury. The court thereupon dismissed the jury and decided the case upon the law and the evidence. Held, That plaintiff cannot complain upon appeal of this action by the trial court.</p>

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

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

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

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

<p>'Mortgages: Validity. M., an attorney at law, was indebted in a considerable sum for money of a client which, he had converted to his own use. A representative of that client went to the home of M. in his absence and stated to his wife, who was there alone, that her husband had used large sums of money that belonged to said client, who was also a niece of M., and that, unless she executed a mortgage o'n her homestead, said representative would forthwith commence “proceedings.” M.’s wife was in ill health, nervous, excitable, and unaccustomed to transact any kind of business, and believed and understood from the statements made to her that the proceedings referred to were Criminal prosecutions, and she, acting under the pressure of a desire to save -her husband, agreed to sign the mortgage. She went , that night to the train to meet her husband, and insisted that he should at once go to his office and with her execute said mortgage. She prevailed, and the instrument was executed. Held, That in the light of the facts, notwithstanding she had the benefit of the presence and protection of her husband at and just before the time she signed the mortgage, she was not a free agent in that particular, and as the rights of third persons had not intervened, and she had not received any consideration for signing the mortgage, that a court of equity would not enforce its provisions.</p>

<p>' 1. Master and Servant: Contract: Evidence. A contract of employment may be proved by letters exchanged between tbe parties in due course of mail.</p> <p>2. Evidence: Letters. Where the genuineness of a letter has not been questioned, it may be introduced in evidence on competent testimony that it was received in due course of mail in reply to a letter mailed to the writer.</p> <p>•3. Trial: Instructions: Waiver. The right of a litigant to have a particular issue of fact submitted to the jury by an instruction may be waived by conduct showing that he neither requested such an instruction nor raised the question in his motion for a new trial.</p> <p>4. Master and Servant: Discharge: Damages. It is the duty of an employee who has been wrongfully discharged in violation of his contract to make reasonable efforts to avoid loss by securing other employment.</p> <p>5. -•: -: -: Instructions. In a suit by an employee to recover damages for his wrongful discharge in violation of a written contract, an undenied allegation of the petition, stating the amount plaintiff subsequently. earned elsewhere, when established by uncontradicted evidence, presents no issue of fact for the determination of the jury.</p>

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

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

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

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

<p>1. Vendor and Purchaser: Contract: Construction. The parties to a contract for the sale of real estate stipulated that the balance of the consideration should be paid by a day named, in default of which the vendee was to forfeit his interest in the land. Held, That this provision manifested an intention to make time of the essence of the contract.</p> <p>2. Contracts: Waiver. Where both parties to a contract fail to perform their mutual covenants on the day named, they will be held to have waived its strict performance as to time, but the contract will remain unimpaired as to its effect.</p> <p>3. -: Forfeiture. One party, to a contract cannot declare a forfeture for failure of the other party to strictly perform its conditions, unless he is in position to perform on his part.</p>

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

<p>1. Appeal: Harmless Error. Erroneous rulings of the court, which work no prejudice to the' complaining party, do not call for a reversal of the judgment.</p> <p>2.--: Arfirmamce. Where the transcript of the record contains only the pleadings and record of the entry of judgment, which latter conforms to the pleadings, and in which no error appears, the judgment will be affirmed.</p>

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

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

<p>Judgment: Collateral Attack. In this case, -where a justice of tne peace overruled a special appearance objecting to the jurisdiction over the person, an adequate remedy was given by error proceedings, and the ruling cannot be assailed collaterally.</p>

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

<p>Judgment: Pieadings. In an action by an agent upon an agency and commission contract to recover commissions earned in selling mercnandise to the amount of $2,706, plaintiff had judgment for $517.25. The contract was set out in the pleadings and showed that plaintiff’s commission could not exceed 20 per cent, of the purchase price, and that the commission became due and payable only when the merchandise sold had been paid for in cash, and the pleadings also showed that but $880.50 of the purchase price had been paid in cash. Held, That the judgment was not supported by the pleadings.</p>

<p>Villages: Vacation of Streets: Statutes: Repeal. An act of the legislature entitled “An act to provide for vacating streets, alleys and public grounds in towns and villages” (laws 1871, p. 125), passed and approved March 10, 1871, in so far as said act confers upon county boards the power to vacate streets within incorporated villages, was repealed by the act of the legislature entitled "An act to provide for the organization, government, and powers of cities and villages” (laws 1879, p. 193), passed and approved March 1, 1879.</p>

<p>1. Assault and Battery: Petition. A petition which contains averments to the effect that defendant wilfully and maliciously, with force and violence, pushed and shoved plaintiff across a room to a door and out of the door to the ground, a distance of six feet, and that as a result plaintiff’s leg was broken and his knee crushed, and to his damage in the sum of $5,000, states a cause of action for damages for assault and battery.</p> <p>2. -- — : Justification: Instructions. In an action to recover damages for assault and battery, it. is not proper for the trial court to submit to the jury the defense of justification, when such defense is neither alleged nor proved.</p> <p>3. Damages: Instructions. An instruction which .directs the jury that, if they find for plaintiff, to assess his damages in any sum, not exceeding 'the amount claimed, "which they may find will compensate him for the injuries received, is not prejudicially erroneous, if from other parts of the court’s charge to the jury it appears that the jury were to ascertain the amount of plaintiff’s recovery from the evidence.</p> <p>í. -: Pleading. Physical pain and mental anguish are proper elements of damage in an action for personal injuries, and need not be specially alleged in the pleading, where the injury complained of is such as to necessarily import physical pain and mental anguish'.</p> <p>5. Trial: Instructions. It is not error for the trial court to refuse to submit to the consideration of the jury a defense which finds no support in the evidence.</p> <p>6. App.eal: Verdict: Evidence. A verdict based upon conflicting evidence will not on appeal be set aside, even though the appellate court might from the evidence have arrived at a different conclusion from that reached by the jury.</p>

<p>Village warrants drawn in excess of 85 per cent, of the current levy for the purpose for which they are drawn, unless there shall he sufficient money in the village treasury to the credit of the proper fund for their payment, are void, and their payment will be enjoined at the suit of a resident taxpayer.</p>

<p>Negligence: Directing Verdict. The question of negligence and contributory negligence is usually a question to be submitted to a jury, but where the facts are undisputed, and such that reasonable minds can draw but one conclusion therefrom, it is-the duty of the court to direct a verdict.</p>

<p>1. Assault and Battery: Justification. Where one has entered the premises of another for the purpose of notifying him of the straying of his stock, and the landowner thereupon orders him to depart, his failure to do so instantly, unaccompanied with any threat or violence toward the landowner, does not justify the latter in using a deadly weapon to eject him.</p> <p>2. -: Instructions. Where the plaintiff entered upon defendant’s premises to notify him of the straying of his stock, and the defendant thereupon ordered him to depart, and upon his failure to do so instantly assaulted him with a deadly weapon, breaking his arm, it was error for the court to instruct the jury that the ■ defendant might use such force1 as was necessary in self-defense, or to prevent receiving bodily harm, it not appearing that the plaintiff in anywise attacked or threatened the defendant.</p> <p>3. —1-: -: Mitigation of Damages. Where the plaintiff brought his suit for two alleged assaults pleaded as separate causes of action, and there was no evidence whatever that the plaintiff had at the time of or shortly previous to the second assault used provocative or threatening language tow.ard the defendant, it was error to charge the jury generally that, if they believed from the evidence that plaintiff recently before or at the time of the alleged assault had used provocative or threatening language toward the defendant, they might take that circumstance into consideration in mitigation of damages.</p>

<p>Sales: Option. Where the owner of sewing machines places the same in possession of a prospective purchaser on trial and with an option to purchase at a fixed valuation, hut with no agreement to pay rent therefor, such transaction does not constitute a conditional sale nor lease within the meaning of section 26, ch. 32, Comp. St. 1907.</p>

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

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

<p>Counties: Defective Bridges: Damages. Where a steam traction engine is injured by reason of defects in a bridge upon the.public highway for which a county is liable in an action to recover therefor, plaintiff can prove the costs of repairs; the amount of recovery being only the actual cost value of such necessary repairs.</p>

<p>1. Religious Societies: Use op Property: Injunction. When property has been acquired by a church organization for the purpose of religious worship in accordance with the doctrine and discipline of a particular denomination, persons claiming under such denomination, and not pretending in any way to hold adversely, or to have any title of their own, except as members thereof, may be enjoined from using such property contrary to the determination of the governing authorities of such denomination.</p> <p>2. -: Government: Review by Courts. Where a local church or parish is a member of a general organization, having general rules for the government and conduct of all of its adherents, congregations and officers, the final orders and judgments of the general organization through its governing authority, so far as they relate exclusively to church affairs and church government, are binding on the local associations and their members and officers, and courts will not ordinarily review such final orders and judgments for the purpose of determining their regularity, or accordance with the discipline and usages of the general organization.</p>

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

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

<p>1. Evidence Taken on Former Trial. The official reporter testified that a bill of exceptions of tbe evidence submitted during a former trial of tbe case correctly reproduced tbe testimony of tbe witnesses. It also appeared tbat some of those witnesses were nonresidents of and absent from the county during tbe succeeding trial, and that plaintiff had been unable to secure their depositions or presence. Held, That it was not error to permit the testimony of such absent witnesses to be read from the bill of exceptions to the jury.</p> <p>2. Appeal: Harmless Error: Comments of Judge. The trial court in response -to an objection to a question propounded to a witness stated that, while he was satisfied upon principle that the witness was not sufficiently informed upon the subject to testify thereto, yet, in deference to a possible construction of the opinion of this court upon a former appeal, he would overrule the objection. Held, That, as the point upon which the witness was then interrogated was established without dispute by wit- ! nesses for both plaintiff and defendant, the remarks of the court were not prejudicially erroneous, and did hot have a tendency to destroy the credibility of the witness concerning her other testimony.</p> <p>3. Trial: Instructions. It is not error to refuse to give an instruction that singles out a witness and informs the jury that she is competent to testify upon a. given subject.</p> <p>4. Appeal: Evidence. If a case has been tried three times, the verdict each time being in favor of plaintiff, this court will not set aside the last verdict as being against the weight of the evidence, unless the evidence is clearly insufficient to support the verdict.</p>

<p>1. Appeal: Exceptions. Ah instruction to which. there is no exception is not reviewable.</p> <p>2. Damages: Destruction of Trees. In. a suit to recover damages to timber injured by fire, the court may decline to instruct the jury that the measure of damages is the difference in value of plaintiff’s land before and after the fire, where the trees have a value separate from the land.</p> <p>3. Evidence: Value of Trees. In an action to recover damages to timber injured by fire, a competent witness for plaintiff may testify to the number of trees destroyed and the difference in their value before and after the fire.</p>

<p>1. Intoxicating Liquors: Violation of Ordinances: Appeal. A saloon-keeper who has been fined by the police court for keeping his place of business open after hours or on Sunday, in violation of an ordinance of the city of Hastings, cannot appeal to the district court under the provisions of section 324 of the criminal code, relating to appeals from judgments rendered by magistrates in imposing fines or imprisonment for violations of statutes of the state.</p> <p>2. Constitutional Law. A party to a suit will not ordinarily be permitted to attack the constitutionality of a statute in a case where his rights or interests are not invaded or affected by its provisions.</p>

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

<p>Larceny: Instructions. E. was charged with the crime of stealing property in S. county over the value of $100. Upon the theory of the state that said property was feloniously obtained by the accused in C. county and from thence brought into S. county and there sold by the defendant, the court gave the following instruction: “Should you believe from the evidence that the mules described in the information were wont to run upon a range or in a pasture in Cherry county, Nebraska, and if you further believe from all the facts and circumstances in evidence that the said mules were taken from the range in said Cherry county, and if you further believe from the evidence that said mules were brought into Sheridan county by the defendant, and spld by him in Sheridan county, then the crime charged in the information would be complete in Sheridan county.” Held prejudicial to the rights of the accused and erroneous.</p>

<p>Api*eal from tbe district court for Logan county: Hanson M. Grimes, Judge.</p>

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

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

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

<p>Constitutional Law. Section 5514, Ann. St. 1907, in so far as it , assumes to authorize an appeal from the decision of the county . board upon the questions of public utility, is void. i</p>

<p>1. Intoxicating Liquors: License: Revocation. Power given to a board of fire and police commissioners by statute to license, restrain, regulate, or prohibit tbe sale of intoxicating liquors by ordinance is sufficient to authorize the board to adopt rules controlling the traffic, including the right to revoke a license upon the violation by the licensee of any statute, or city ordinance, or any reasonable rule adopted by the board for the control of the traffic.</p> <p>2. -: Board of Fire and Police Commissioners : Ordinances. The manner for the adoption of ordinances by the city council of South Omaha, as prescribed by section 8308, Ann. St. 1907, does not apply to ordinances adopted by tbe board of fire and police commissioners of tbat city.</p> <p>3. —-: -: -. In the absence of a statute prescribing a manner for (he adoption of ordinances, any reasonable mode which the board adopting them may follow is sufficient.</p> <p>4. -: Violation of Ordinances: Complaint. A rule of the board of fife and police commissioners providing that any officer of the city may make complaint of the violation of law by a licensee does not prevent others from making such complaint, although, not expressly given the right to do so.</p>

<p>1. Evidence: Intent. When the intentions of an interested witness become a matter for judicial inquiry, they are ascertained by a consideration of his conduct, and not by his declarations or testimony as to what his intentions were.</p> <p>2. Brokers: Commission: Evidence. As between two brokers, through each of whom negotiations for the sale of land were made with a prospective purchaser, he who can show that his agency was the effective cause of the sale is entitled to recover the broker’s commission.</p> <p>3. -: -: -. Plaintiff, a real estate broker having authority to sell defendant’s land, visited the land with the purchaser, and thereafter continued negotiations which were never expressly terminated. Without any intervening agency, purchaser decided to buy, but made an arrangement with the interpleader, also a real estate agent, whereby the latter, with full knowledge of plaintiff’s negotiations, solicited and received authority to sell the land, and a promise from the owner of a commission in case he effected a sale, attempting at the same time to procure the land for less money than purchaser was willing to pay. The interpleader promised to divide the commission with the purchaser. The defendant, not knowing of plaintiff’s negotiations with the purchaser, agreed that interpleader should bind him by a written contract to convey. Held, That as between the brokers plaintiff’s efforts were the effective cause of the sale, and he is entitled to the commission.</p>

<p>Appeal from £he district court for Madison county: Anson A. Welch, Judge.</p>

<p>1. Homestead, Proceeding to Set Off: Striking Answer. On the day set for hearing on a petition filed by a judgment creditor under provisions of section 6 of the homestead act (Comp. St. 1907, ch. 36) to have the-judgment debtor’s homestead-ascertained and set off, the wife of the judgment debtor filed an answer in which she set. forth that the judgment debtor had deserted his family, and other facts showing her entitled to claim the homestead exemption, and also alleged that she and her husband each owned an undivided one-half interest in the,, premises levied upon, and claimed the homestead exemption out of the husband’s undivided interest, which answer was stricken from the files upon the ground that the statute did not require the filing of an answer, and that the homestead claims set up in the answer were different from that contained in the notice to the officer making the levy. Held to he error.</p> <p>2. Homestead: Seuection. The undivided half interest of a husband in lands owned by himself and wife as cotenants is subject to homestead exemption.</p> <p>3. -: -. When a husband deserts his wife and family, leaving them in the possession of a homestead, the wife is entitled to the benefit of the same homestead exemption that existed in her husband at the time of his desertion.</p>

<p>1. Master and Servant: Injury: Negligence: Question for Jury. Where a village, engaged in supplying water and manufacturing gas for its own use and for sale to private consumers, so installs a tank for the storage of gasoline that it leaks into the pumping pit of the waterworks and causes an explosion in which an employee of the village is injured, the question whether such explosion is attributable to negligence on the part of such village is for the jury.</p> <p>2. -: -: Contributory Negligence: Question for Jury. Where an explosion of gasoline in the pumping pit of a village waterworks followed the lighting of a match by an employee who had no knowledge of the presence of the gasoline, but detected an odor of gas which he supposed was escaping from a fixture, and the evidence shows that such is the ordinary method to detect leaking fixtures, the question whether the employee was guilty of contributory negligence in striking the match is for the jury.</p> <p>3. -: -: Assumption of Risk. The danger of an explosion from the presence of gasoline in the pumping pit of a waterworks station, of which an employee had no notice, is not one of the ordinary and obvious hazards of his employment which he assumes by accepting such employment.</p> <p>4. -: -: Liability. A water commissioner appointed in pursuance of the provisions of subdivision 15, see. 69, art. I, ch. 1,4, Comp. St. 1908, has, subject to the supervision of the board of trustees, general management and control of the system of waterworks, and the village owes to persons employed by him in connection with such business the duty to provide a reasonably safe place for the conduct of their employment.</p> <p>5. Appeal: Hypothetical Question: Review. Where a hypothetical question is objected to on the ground that it is an inaccurate statement of the facts which the evidence tends to establish, such objection will not be considered on appeal unless the argument points out the particular defect in the question.</p> <p>6. -: Damages: Instructions. Where the evidence clearly shows that the injuries suffered by the plaintiff are of a serious and permanent character, and the damages awarded, it is conceded, are not excessive in amount, it is not prejudicial error for the court to instruct the jury that the plaintiff is entitled to recover' damages for his impaired earning c'apacity.</p>

<p>Appeal from the district court for Madison county: Anson A. Welch, Judge.</p>

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

<p>Appeal from the district court for Platte county: Conrad Hollenbeck and James G. Beeder, Judges.</p>

<p>. 1. Judgment: Res Judicata. Where in a suit in the nature of a creditor’s bill it appeared that the judgment creditor was indebted to the judgment defendant upon a promissory note in an amount equal to or greater than the amount of the judgment, and his petition was dismissed on the ground that being so indebted he suffered no injustice from the legal obstacles which he sought to remove, such dismissal does not operate to satisfy the judgment.</p> <p>2. -: Revivor: Defenses. In a proceeding to revive a dormant judgment by motion, the judgment debtor cannot plead as a defense to such motion an independent cause of action existing in his favor against the judgment creditor.</p>

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

<p>1. Tax Sale: Purchase by Owner. “A purchase of land at sheriffs 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.” Gibson v. Season, 82 Neb. 475.</p> <p>2.'-: -. It is the duty of a mortgagor of mortgaged real estate while he holds the legal title thereto to pay the taxes levied thereon. That duty follows the title to the land to his grantee. Such grantee cannot while holding the fee title purchase the property at a foreclosure sale for taxes, and thereby defeat the mortgage. The purchase would have only the effect of a payment of the taxes a'nd redemption from the decree of foreclosure.</p> <p>3. Mortgage Foreclosure: Decree. In a proceeding to foreclose a mortgage securing a debt evidenced by a promissory note, no issue of payment or other diminution of the debt having been presented, the note and mortgage having been held valid and transferred to plaintiff for value, the plaintiff was entitled to a judgment for the full amount due upon the debt.</p>

<p>Judgment: Validity. J., a married man and tRe Read of a family, died seized of certain real estate occupied by Rimself and family as tReir Romestead. In tRe administration of Ris estate, tRe land was set off to tRe widow by tRe county court as Rer Romestead, giving Rer tRe title “in fee simple.” SRe afterwards sold tRe property, conveying it by warranty deed. TRrougR mesne conveyances S. became possessed of tRe title Reid by tRe widow, and executed a mortgage tRereon for value to M. TRe widow died, and tRe cRildren of Rerself and J. brougRt an action to remove tRe clouds upon tReir title created by tRe deed to S. and Ris mortgage to M. M. defaulted. S. answered, contesting tRe suit of plaintiffs, but tRe question of tRe indebtedness of S. to M. was not put in issue in any form. TRe final decree was in favor of tRe Reirs, and, after tRe provision tRat tRe mortgage did not constitute a lien on plaintiffs’ land, it was furtRer declared tRat it did not constitute “a personal liability on tRe part of tRe defendants.” Defendant M. appeals. Held, TRat tRe provision in tRe decree wRicR sougRt to destroy tRe liability of S. to M. was void.</p>

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

<p>1. Judgment by Default: Setting Aside. When a judgment on default bas been entered against a defendant, which he seehs to have vacated, good practice requires him to exhibit to the court such matters in excuse of his default as he is able, and, in addition thereto, that he has a meritorious defense, either in whole or in part, to the action.</p> <p>2. -: -. Where the ground of defendant’s motion is that the petition on which the judgment was rendered is not sufficient to state a cause of action, the pleading will be liberally construed, and if, when so considered, it is found sufficient to sustain a judgment by default, the motion should be overruled.</p>

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

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

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

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

<p>Specific Performance: Pleading: Sufficiency. Plaintiffs requested specific performance of a contract. Defendants admitted the execution of said contract, but not all of the facts essential to entitle plaintiffs to a decree. Defendants also pleaded facts which, if true, constituted a defense to the petition. Held, That the district court erred in sustaining a general démurrer to said answer.</p>

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

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

<p>. 1. Bastards: Instructions: Review. Where testimony lias been admitted on behalf of defendant in a bastardy case in violation of the rule that his reputation for chastity is not an issue, he cannot predicate error on,, a proper instruction to the jury to disre- ■ gard it.</p> <p>2.-: -: -. Where the testimony adduced on both sides of a bastardy case has been fully submitted to the jury by proper instructions, it is not error to refuse a requested instruction making prominent a circumstance relating to the period of gestation.</p> <p>3.-: Complaint: Waiver. In a bastardy case, a defendant who appears before a justice of the peace and enters into a recognizance 'to appear at the next term of the district court to answer the accusation against him, without objecting to the complaint, waives the objection that it fails to state the child, “it bom alive, may be a bastard.”</p> <p>4. -: -: -. A defendant who appears before the district court in a bastardy case and pleads not guilty to the charge, without objecting to the complaint, waives the objection that it fails to state the child, “if born alive, may be a bastard.”</p>

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

<p>Pleading: Amendment after Decree. Plaintiff in his petition to redeem from a tax sale made a clerical mistake by which he described the land as the S. W. % instead of the N. W. Vi, and at the same time filed a Us pendens correctly describing the land. The mistake was not discovered until after a decree had been entered, which also contained the misdescription. Plaintiff promptly, after discovering the mistake, upon due notice to counsel for defendant, moved the court for leave to amend so as to correct the error. The district court overruled the motion. Held, Error. Code, sec. 144.</p>

<p>1. Counties: Bridge Repairs: Liability. The county of Colfax served notice upon the county of Butler, in substance, requesting it to join in and to pay one-half of the cost of the repair of a wagon bridge over the Platte river, which request being ignored by Butler county, Colfax county proceeded under a contract to build practically a new bridge costing about $22,000. Held, Butler county not liable to Colfax county for any part-of the cost of building such bridge.</p> <p>2. -: -: Notice. A notice served upon a party sought to be charged thereby should fairly state the intention of its author and the scope of the enterprise contemplated by him.</p>

<p>1. Insurance: Action: . Venue. An action against a domestic insurance company may be brought in any county of this state where the cause of action or any part thereof arose, and summons therein may be issued to a'nd served in any other county, although there is but a single defendant to the suit.</p> <p>2. -: -: Parties. Where a husband enters into a contract of insurance on his life for the benefit of his wife and dies before the policy, of insurance issues, the cause of action on the contract of insurance, or for breach of contract for refusal to issue the policy, if such be the case, vests in the wife for whose benefit the contract was made, and not in the administrator of the deceased husband’s estate.</p> <p>3. -: Contract. Where written application for a twenty-payment life insurance policy is made to a company, one of its provisions being that the application, together with the applicant’s statement made to the examining physician and the policy that may be issued, shall be the contract between the applicant and the company, and said application is rejected by the company, which makes a counter proposition to insure the applicant and to issue him a ten-payment policy upon the payment of an additional premium, which proposition is accepted and the additional premium paid, a contract of insurance comes immediately into existence, even though no policy of insurance was then or after-wards issued.</p> <p>4. -: Refusal to Issue Policy: Action foe Damages. Where an oral contract of insurance has been made and the premium paid, and the company refuses to issue a policy as required by the terms of the contract, an action for damages for such breach of contract may be maintained by the party in whose favor the. insurance was effected.</p> <p>5.-: Policies: Execution. Section 15, ch. 52, laws 1903, requiring “all policies and contracts of whatever kind for life insurance” to be signed by the president or vice-president and by the secretary or assistant secretary of such company, applies only to companies formed under the provisions of that act.</p> <p>6. Statute of Frauds: Contbact of Insurance. The contract of insurance set out in the plaintiff’s petition is not obnoxious to‘our statute of frauds.</p>

<p>1. Eminent Domain: Appraisement: Notice. A notice to the owners of land sought to he condemned for park purposes stated that the appraisers apointed to view the land and assess the damages would meet at 2 o’clock P. M. on a certain day and commence their view across Nineteenth street from Kountze park, within the corporate limits of the city, and after viewing the property and hearing interested parties would adjourn to room 200, Omaha National Bank building, where the business would be proceeded with until completed. Held, That the notice was sufficiently definite and certain as to the time and place of meeting.</p> <p>2.-: -j — . The Omaha city charter of 1905 provided that, in appropriating lands for park and other purposes, three appraisers should be appointed by the city council, except that, in cases where land of the value of $50,000 or more was to be taken, five appraisers should be appointed. Held, That, as a preliminary step in the appointment of appraisers, the council must exercise its own judgment as to the value of the land to be taken, and, if but three appraisers were appointed and their report showed the land to be of the value of $50,000 or more, a second appraisement by five appraisers must be had, but that the appraisement made by the five appraisers would be valid regardless of the value found by them.</p> <p>3. Cities: Park Commissioners: Appointment: Yaliditt oe Acts. One section of a city charter provides for the appointment of the members of the park board by the judges of the district court of the judicial district in which the city is located. In a case determined by this court it was held that the statute directing the appointment to be made by the district judges was unconstitutional, and that the park board should be appointed by the mayor and city council under another section of the charter. Held, That a park board whose members were appointed by the mayor and city council were invested with all powers vested in park boards by the charter, and that it had authority to designate the real estate deemed desirable for park purposes.</p>

<p>1. Judgment: Validity: Qtlere. In an action pending in the Twelfth judicial district the parties stipulated to try the case before the judge of the Thirteenth judicial district, and to take the evidence before said judge, at Grand Island, in the Eleventh judicial district, during the vacation of the court in which the action was pending. Whether a judgment based on tbe evidence so taken rendered by tbe judge bearing it at a regular term of tbe court of tbe Twelfth judicial district is erroneous and subject to reversal on appeal, qucere.</p> <p>2. -; Collateral Attack. After acquiring jurisdiction of tbe parties and tbe subject matter of tbe action, ¡regularities on tbe part of the court in entering judgment in the case can be taken advantage of only by appeal; such judgment not being absolutely void and subject to collateral attack.</p>

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

<p>1. Appeal: Change of Venue: Review. Unless an abuse of discretion is shown, this court will not disturb the ruling of the lower court upon a motion for a change of venue.</p> <p>2. -: Challenge oe Juror: Review. Error will not be attributed to the trial court in overruling the challenge of a juror for cause unless an abuse of discretion' is shown.</p> <p>3. Waters: Obstructions: Action for Damages: Evidence. In an action to recover damages for the negligent damming hack of flood waters, evidence is admissible tending to show that the floods were not unprecedented, and that former excessive rainfalls did not deluge the land in controversy except when the waters were interfered with by an embankment similar to that complained of.</p> <p>4. -: -: -: -. Evidence that in another part of the valley in which plaintiff’s property was destroyed, but at a place where no embankment interfered, property similar to plaintiff’s was destroyed by flood waters was properly excluded, in the absence of evidence or an offer to prove that the rainfall was substantially equal in both places and other natural influences vrere the same.</p> <p>5. Trial: Instructions. An instruction which assumes to determine the issues of the case is held not to be erroneous because it excluded certain defenses which were not supported by the evidence, or which have been covered by other instructions given.</p> <p>6. Waters: Railroad Embankment: Negligence: Evidence. In the construction of an embankment or roadbed across the valley of a watercourse, a railway company is required to build sufficient bridges or culverts to permit the passage of such flood waters as might reasonably he expected, and proof of its failure in this regard is proof of negligence in the construction of the roadbed of which an upper landowner may complain.</p>

<p>1. Appeal: Supersedeas. In an appeal from the judgment of a county court in a matter of probate jurisdiction, a bond which is not - conditioned as required by the statute is insufficient to supersede the judgment appealed from.</p> <p>2. -: Trial De Novo. In the trial of a case in the district court on appeal from the county court, a party may plead and prove any facts arising since the trial in the county court which shows that the adverse party is not entitled to the relief sought.</p> <p>3. -: Reversal: Relief. Although appellant may fail to supersede an erroneous judgment, which is later executed, the appellate court should reverse it, and, if it appears equitable and just, the appellant should be permitted to seek restoration.</p>

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

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

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