Volume 85 — Nebraska Reports

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

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

Original-actions by. the state to enjoin defendants from putting into effect charges or rates other than those established by law.

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

<p>1. Action: Practice. “If a case ever arise in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under this code, the practice heretofore in use may be adopted so far as may be necessary to prevent a failure of justice.” Code, sec. 901.</p> <p>2. Justice of the Peace: Review. The right to review final orders of justices of the peace and other inferior tribunals still exists, notwithstanding the repeal of section 584 of the code.</p> <p>3. Contract: Validity. Contract set forth in opinion held not to be void on its face as against public policy or as in violation of section 1, ch. 91a, Comp. St. 1901.</p>

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

<p>Rehearing of case reported in 83 Neb. 417.</p>

<p>1. Wills: Devises: Construction. If an estate is devised to a person generally or indefinitely with a power of disposition, it carries the fee; but, if the testator gives the first taker an estate for life only with a power to dispose of the remainder to definitely described individuals, the express limitation for life will control the ■operation of the power and prevent it from enlarging the life estate to a fee.</p> <p>2. Powers: Implied Gift. Where there is a power to appoint among certain objects and no gift in default of appointment, 'the law will imply a gift to the objects of the power.</p> <p>3. —--: Discretion of Donee. Where the donee of a power is given discretion in making an appointment, that discretion will not be controlled by the court provided a substantial gift is made to each object of the power.</p> <p>4. -: -: Power of Courts. Should the donee depart this life without having exercised the power, the court cannot exercise the discretion vested in the donee, but will divide the property equally among the beneficiaries of the power.</p> <p>5. -: Power in Trust. Where a testator devises to his wife a life estate in certain lands and lots with the power to “dispose” of or “distribute” the remainder as she sees fit, and later in the will there is a statement that the wife is to give two of their children out of the said remainder so much thereof “as she sees fit,” and it appears from the will and all of the circumstances surrounding the deceased that it was his intention to devise all of his estate and not to permit any part thereof to vest in strangers to his blood, the widow takes a power in trust for the benefit of the children referred to, and is not at liberty to exercise that power for the benefit of any one else.</p> <p>6. Wills: Devises: Construction. Subsequent provisions in a will will not prevail to take from an estate in fee simple qualities that the law regards as inseparable from it, such as the right to incumber or convey. They are, however, operative to define the estate given, and may act to demonstrate that what without them would be a fee was intended to be a lesser estate; but, if a consideration of the entire instrument, convinces the judgment that the estate first granted was intended to be a fee simple, then subsequent clauses restricting alienation and suggesting that the fee should descend to the devisees’ children will not clog or denude the fee theretofore granted.</p> <p>7. Specific Performance: Family Settlement. A decree 'for the specific performance of a contract is not a matter of right, but rests in the sound discretion of a court, and, in such an action, where it appears that the defendant is an aged and illiterate woman, that the contract purports to distribute the estate of her late husband in violation of the terms of his will, and that at the time she signed the contract she did not know her legal rights, but was overreached by her children, the petition will be dismissed.</p> <p>8. Equity: Cancelation of Deed. An undelivered deed signed by the donee of a power who was ignorant of her rights and privileges will be canceled in an equitable action involving a construction of the will creating said power, and of the rights of all devisees and legatees named therein.</p>

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

<p>1. Eminent Domain: Highways. Private property in Nebraska cannot be taken or damaged for public use without just compensation therefor, and this rule applies to public authorities exercising the right of eminent domain in establishing and opening public highways.</p> <p>2. -: -: Injunction. If a road overseer attempts to enter upon the real estate of an individual to prepare a highway thereon for the use of the public, and the owner’s damages for the appropriation of said land for that purpose have not been theretofore ascertained, and payment made or provided therefor, the landowner is entitled to an injunction restraining the overseer until such damages have been ascertained and paid, or payment provided for in accordance with law.</p>

<p>1. Insurance Contract: Enforcement. “A contract of insurance is a contract of indemnity, and any person attempting to enforce a claim under such a contract must show an interest in the subject matter of the contract.” Stanisios v. Hartford Fire Ins. Co., 83 Neb. 768.</p> <p>-: -. In 1906 a husband by virtue of the marital relation only had no insurable interest in his wife’s real estate. 2.</p>

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

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

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

<p>Contracts: Rescission. The right to rescind a contract for fraud must be promptly exercised upon discovery of the ground therefor.</p>

<p>Error to the district court for Johnson county: Lbandbr M. Pemberton, Judge.</p>

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

<p>1. Parol Evidence: Notes: Consideration. It Is not error to submit oral testimony to the jury to show the purpose for which a negotiable promissory note was executed, where such note is sued on by the payee named in the note.</p> <p>2. -: -: -. A and B purchased a tract of land and some personal property jointly. A obtained from B the latter’s negotiable promissory note for $6,500 merely to show, in event of death or other casualty happening to B, that the interest of A in the property so purchased was of the amount of $6,500. Held, in a suit by A against B to recover on the note its face value with interest, that B could properly show the purpose for which the note was given, and that it was executed without consideration.</p>

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

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

<p>1. Constitutional Law: Statutes: Presumptions. In passing on the validity of the act which provides a four-year course of free high school instruction for pupils residing in districts where that privilege is denied, permits them to attend properly equipped schools in other districts, and makes the home district liable for payment of tuition at the rate of 75 cents a week for each pupil, it will not be assumed without pleading or proof that the tuition fixed by the legislature will fall below or exceed the cost of educating a nonresident pupil.</p> <p>2. Schools and School Districts: Taxation: Constitutional Law. In directing the county superintendent of public instruction to furnish the county clerk with the necessary data for a levy, when a school district refuses to vote taxes for free high school purposes, the free high school act of 1907 does not delegate to that school officer a taxing power committed exclusively to school districts under the constitutional provision that “all municipal corporations may be vested with authority to assess and collect taxes.” Const., art. IX, sec. 6.</p> <p>3. Constitutional Law: Statutes: Titles,. A title declaring a legislative purpose to provide a four-year course of free high school instruction for pupils residing in districts where that privilege is denied, is broad enough to cover taxation for the purpose stated and legislation to prevent school districts from defeating the act by refusing to vote taxes.</p> <p>4. Statutes: Validity: Constitutional Law. The free high school law of 1907 (laws 1907, ch. 121) is an independent act, and its validity must be tested by the rule that changes or modifications of existing statutes as an incidental result of adopting a new law covering the whole subject to which it relates are not forbidden by section 11, art. Ill of the constitution, relating to the amendment of statutes. De France v. Sarmer, 66 .Neb. 14.</p>

<p>1. Trial: Directing Verdict. Where the evidence upon a question of fact material to the issue is conflicting,-and such that reasonable minds might reach different conclusions, the question is one for the jury, and it is error for the court to direct a verdict. Gillis v. Paddock, 77 Neb. 504, followed.</p> <p>2. Master and Servant: Appliances: Assumption of Risk. A servant does not assume the risk of injury arising from his master’s having negligently furnished him an unsafe and defective working place, unless the servant knew of the unsafe or defective condition, or ought by the exercise of reasonable care to have known of such unsafe or defective condition.</p> <p>3.-: Action fob Injuey: Defenses: Assumption of Risk: Bub-den of Pboof. In an action for damages for personal injuries by a servant against his master grounded upon the latter’s negligence, assumption by the servant of the risk of the injury other than that usually and ordinarily incident to his service is an affirmative defense, the burden of establishing which rests upon defendant.</p>

<p>Landlord and Tenant: Action for Rent. “In order to maintain an action to recover-for rent due, the relation of landlord and tenant must have existed between the parties, either by express agreement or by implication.” Janouch v. Pence, 3 Neb. (Unof.) 867. See, also, Skinner v. Skinner, 38 Neb. 756.</p>

<p>Executors and Administrators: Wills: Allowances to Surviving Spouse. Under the provisions of section 176, ch. 23, Comp. St. 1907- (Ann. St. 1907, sec. 4903), “all the wearing apparel and ornaments and household furniture,” and other personal property, not exceeding $200 in value, of a deceased wife or husband vest in the survivor, as well when such survivor receives provision made in the will of the deceased as when the deceased died intestate, and the survivor cannot be deprived of the allowance thereof by the will of the deceased, nor can the survivor be required to elect whether he or she will accept other provisions of the will in his or her behalf before demanding the property described in the above section.</p>

<p>1. Deeds: Validity. A deed to real estate, executed and delivered, is valid between the parties, though not lawfully acknowledged nor witnessed, and is sufficient to convey the land described therein, with the exception of the homestead of the grantor.</p> <p>2. -: Delivery. Evidence examined, its substance stated in the opinion, and held sufficient to sustain the finding of the district court that the deed in question was in fact delivered to the grantee.</p> <p>3. Dormer Opinion Modified. Former opinion, 83 Neb. 562, modified, and our former judgment adhered to.</p>

<p>1. Specific Performance: Evidence. Direct evidence that a testator made an oral contract with his stepson that he should remain in the family, assist in managing the testator’s business, carry on the work of the farm, and perform the duties of a son until he should become 21 years of age, on condition that at that time he should receive a team, harness and wagon, and at the death of the testator share equally with his own children in his estate, - if clear and satisfactory, will entitle the plaintiff to a decree for specific performance where it is apparent that he has fully performed the contract on his part.</p> <p>2. Evidence examined, and held sufficient to require a finding and judgment for the plaintiff.</p>

<p>Rehearing of case reported in 83 Neb. 593.</p>

<p>Questions of fact are for the jury, and a verdict or finding by them on a question of fact, where the testimony is conflicting, will not be reviewed.</p>

<p>1. Statutes: Construction. In order to determine the meaning of the language of an act of the legislature, it is proper to examine the course of legislation upon the same general subject, and to consider in what connection and with what context it has theretofore been employed.</p> <p>2. Cities: Ordinances: Power to Enact: Construction. Where power has been granted by the legislature to a municipal corporation to enact ordinances for certain purposes and the city acts within the limits of that power, its action will be of equal force within the corporate limits as if taken by the legislature itself. And the same principles will apply in the construction of such an ordinance as if it were a special statute upon the same subject.</p> <p>3. -: Citx Council: Question of Erection of Members. An act of the legislature giving the city power by ordinance “to decide contested elections” does not make the city council the sole judge of the election of its own members.</p> <p>4. Quo Warranto: Concurrent Remedies. Under the constitution and laws of this state, the remedy of contest of elections and quo viarranlo are cumulative and concurrent. State v. Frasier, 28 Neb. 438.</p> <p>5. Statutes: General and Special Acts. While a special act upon a subject usually modifies a general act on the same subject, still, if a remedy provided by the later act is not incompatible with the remedy provided by the earlier and more general law, both acts may stand.</p> <p>6. Elections: Contests: Cumulative Remedies. Where a new remedy is provided by statute for an existing right, and it neither denies an existing remedy, nor is incompatible with its continued existence, the new remedy should be regarded as cumulative, and the person seeking redress may adopt and pursue either remedy at his option.</p> <p>7. -: -: -. The right to contest the election of a city officer before the city council of Lincoln under an ordinance of that city and the right given by the general election law to contest the election of city officers in the county court are cumulative remedies, and the contestant may elect to proceed in either manner.</p>

<p>Rehearing of case reported in 83 Neb. 678.</p>

<p>1. Appeal: Jurisdiction: Transcript. To clothe this court with jurisdiction to review a judgment or a final order of the district court, the appellant must within six months of the rendition of such judgment or final order file with the clerk of this court a certified transcript of the judgment or order appealed from.</p> <p>2. -: -. If the transcript filed for the purpose of such an appeal is not authenticated by the clerk of the district court, this court is without power, after six months from the rendition of such judgment or final order, to permit the appellant to add the clerk’s certificate to said transcript.</p>

<p>1. Vendor and Purchaser: Offer: Acceptance. A written offer to sell real estate does not become a binding contract until the vendee accepts the tender according to its terms; nor will an offer to purchase real property bind the owner of the land involved, unless he unconditionally accepts the bid.</p> <p>2. Specific Performance: Discretion of Court. “Courts of equity will not always enforce a specific performance of a contract. Such applications are addressed to the sound legal discretion of the court, and the court will be governed to a great extent, by the facts and merits of each case.” Morgan v. Hardy, 16 Neb. 427.</p>

<p>1. Cities: Legislative Powers: Detaching Territory. The power to prescribe the conditions on which territory may be detached from a city is legislative.</p> <p>2. —-: -: Constitutional Law. Where legislative power to detach territory from a city has been delegated by statute to the mayor and council, an appeal from the action of that body in refusing to disconnect particular tracts cannot -be made the means of transferring such power to the district court.</p>

<p>Rehearing of case reported in 84 Neb. 167.</p>

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

<p>1. Replevin: Judoiuext: Coxclusiveness. A judgment in replevin determines the right of possession at the time of the commencement of the action, and it is not inconsistent with the right of the party defeated to afterwards assert a right of possession under changed conditions.</p> <p>2. Judgment: Res Judicata: Replevin. In ah action of replevin, where judgment is rendered in favor of the defendant solely upon the i ground that plaintiff’s petition does not state a cause of action, such judgment is not a bar to a subseguent proceeding by the plaintiff therein to establish his right of property or right of possession, or to establish any lien he may have upon the property in controversy.</p>

<p>1. Eminent Domain: Appeal: Election oe Remedies. A railroad company which had leased its road to another company instituted proceedings in the county court for the purpose ef condemning the real estate of a landowner for, right of way purposes. The landowner appeared and contested the jurisdiction of the court upon the ground that the company seeldng to exercise the right of eminent domain was not the real party in interest. His objection was overruled, and the report of the appraisers awarding $2,700 was confirmed. He then appealed to the district court, alleging the same facts, and averred that his damages were $7,000. He also sought to enjoin the proceedings, alleging the want of jurisdiction. The injunction being denied, he then amended his petition, claiming the increase of damages as demanded in his first petition. Held, That his proceeding to defeat the condemnation was not such an election of remedies as would prevent him from litigating as to the amount of damages.</p> <p>2.--: Damages. In a proceeding to condemn real estate for the purposes of right of way for a railroad company, “the landowner is entitled to full compensation for, the land actually taken, and for such damages to the residue of the land as are equivalent to the diminution in value thereof.” Fremont, F. & M. V. R. do. v. Meeker, 28 Neb. 94.</p> <p>3. -: -. In an inquiry whether and how much the part of a farm not taken for railroad right of way is depreciated in value by the appropriation of a part, it is proper for the jury to consider the liability of stock being killed, and the danger from fire from passing trains. See Fremont, E. & M. V. R. do. v. Bates, 40 Neb. 381.</p> <p>4. -■: Instructions: Harmless Error. The trial court instructed the jury that, if the amount of damages found by them did not exceed $2,700, no interest should be allowed, but, if it exceeded that sum, they should compute interest on the amount. The giving of the instruction was excepted to for the reason that, by inference, it informed the jury of the sum awarded by the appraisers. Defendant offered another one, which directed the jury to find damages and interest separately and unadded, which instruction was refused. Held, That while the instruction refused might, under the circumstances, have been the better, yet the giving of the one submitted would not require a reversal of the judgment.</p> <p>5. Jury: Verdict: Setting Aside: Misconduct of Juror. After the rendition of the verdict, affidavits of a number of jurors were filed, showing that during the deliberations of the jury one of their number stated that another railroad company had constructed its road across his land, and that he knew the inconvenience of it, and that his vote was for a larger, sum than that returned by the verdict. It being shown that substantially the same statement was made by the juror on his voir dire examination, it is held that defendant cannot be heard to complain, there being no showing that it could not have excluded him. The question of the propriety of receiving such affidavits for the purpose of impeaching the verdict is not decided.</p>

<p>1. Justice of the Peace: Proceedings in Error. In order to give the district court jurisdiction in a proceeding in error to reverse a judgment of a justice of the peace, the plaintiff must file a transcript, a petition in error in the district court, and cause a summons in error to be issued thereon against the defendant within six months from the date of the rendition of the judgment complained of, which summons must be served upon the defendant in error or his attorney of record.</p> <p>2. -: ■ — -■. After the expiration of six months from the date of the judgment, the district court cannot obtain jurisdiction to reverse the same by issuing what is called a nunc pro tunc summons in error and directing the service thereof to be made upon the defendant, and a judgment reversing the judgment of ,a justice of the peace upon such service is void.</p> <p>3. Courts: Jurisdiction. Ordinarily the district court has the power to determine the question of its own jurisdiction; but, where the jurisdiction of the court does not depend upon a question of fact, and is Simply one of law, no finding or declaration of the court, if made in disregard of plain statutory provisions, will give it jurisdiction.</p> <p>4. -: -. The test of jurisdiction is whether the tribunal had the power to enter upon the inquiry, and not whether its methods were regular, its findings right, or its conclusions in accordance with the law.</p> <p>5. A void judgment is in reality no judgment. It is a mere nullity. It is supported by no presumption, and may be impeached in any action, direct or collateral.</p>

<p>1. Taxation: Void Decree: Constructive Service. A decree foreclosing a tax lien based upon service by publication, -where the owner of the land is a resident of this state upon whom personal service of summons could have been made, and the affidavit for service contains no statements which would authorize constructive service upon the land against which the taxes were assessed, is void; a.nd such a decree may be attacked in an action to redeem the premises from the lien for taxes and remove the cloud created thereon by such void decree.</p> <p>2. -: -: Redemption. In such a case the plaintiff should be allowed to redeem upon the payment of the tax lien, thé taxes subsequently paid on the premises, together with the interest thereon, and the value of the permanent improvements, if any, made upon such premises by the purchaser or those claiming under him.</p> <p>3. Quieting Title: Taxation: Equity. In an action to quiet title as against a sale for taxes made under a void decree of court, an offer to pay such sum as the court may find due the defendants on account of any lien fon taxes paid is a sufficient offer to do equity and a sufficient tender of any taxes due the defendants. Payne v. Anderson, 80 Neb. 216.</p>

<p>Error to the district eourt for Richardson county: John B. Raper, Judge.</p>

<p>1. Evidence, Preponderance of. While it is the rule in this state that a preponderance of the testimony is' all that is required to sustain a finding in a civil case, still what constitutes a preponderance may vary largely according to the circumstances of each case.</p> <p>2. Cancelation of Instruments: Presumptions: Evidence: Fraud. Where it is sought to set aside a written instrument, and more especially one which has been executed with the formality of being signed in the presence of witnesses and acknowledged before a notary public, on account of fraud, the presumptions of validity and regularity attaching to such a document require clear and convincing evidence to preponderate against them. The formal instrument furnishes proof of the most cogent and solem’n character, and to outweigh this proof requires a greater quantum of evidence than in a case where there are no such presumptions to overcome. Peterson v. Estate of Bauer, 76 Neb. 652, 661.</p>

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

<p>1. Trial: Motions to Direct Verdict: Effect. Where each party to a trial by jury requests the court to direct a verdict in his favor, he waives the right to any finding or trial of the issues by the jury, and consents that the court shall find the facts and apply the law thereto.</p> <p>2. Appeal: Action at Law: Finding by Court. A finding of fact made by a court in the trial of an action at law is entitled to as much respect as the verdict of a jury, and, if there is competent evidence to support the finding, it will not be disturbed on appeal.</p> <p>3. Notes: Negotiable Instrument Act. Chapter 41 of the Compiled Statutes, the negotiable instrument act, does not apply to actions based upon instruments executed before that statute became effective.</p>

<p>1. Pleading: Demurrer. A litigant who stands upon a general demurrer to a pleading thereby admits all of the material facts well pleaded, and must take the consequences which result from such an admission.</p> <p>2. Jury: Compensation. A juror drawn for three' weeks’ service in the district court for Douglas county who appears and serves as a juror in said court during that period is entitled to recover for all of the days of said term, Sundays excepted, unless excused from such attendance by the court.</p>

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

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

<p>1. .Appeal: Law op Case. On appeal to tbe supreme court, the determination of a question becomes the law of the case, and ordinarily will not be reexamined on a subsequent appeal in the same case.</p> <p>2. Mortgages: Assignment: Payment: Estoppel. Where a mortgagee assigned the mortgage as collateral security, and afterward received payment of the debt, but failed to turn it over to the assignee, the landowner who made the payment with constructive notice of the assignment cannot defeat foreclosure, on the ground that the assignee -is estopped to deny mortgagee’s agency for the purpose of collecting the debt, without proving the agency or facts constituting an estoppel.</p>

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

<p>Appeal from the district court for Knox county: An* .■on A. Welch, Judge.</p>

<p>Error to the district court for Lancaster county: Lincoln Frost and Willard E. Stewart, Judges.</p>

<p>Rehearing of case reported in 82 Neb. 375.</p>

<p>Highways: Township Officers: Powers. In counties under township organization, the care and maintenance of public highways devolves upon the township and road officers. Where a public road had been duly established and traveled by the public for 18 years, and a part thereof crosses low land which i's liable to be overflowed by reason of water being backed by a milldam, the roadway being graded up, it is within the power and authority of the proper officers, in the interest of public safety and convenience, to remove culverts in such grade and close the opening, thus preventing the flowing of the water through and destroying the grade.</p>

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

<p>1. School Lands: Leases: Appraisement. A lessee of educational land, commonly called school land, whose lease was executed under the laws in force in 1879, is entitled during the existence of his lease to have a voice in the selection of the appraisers called to revalue the land described therein. But after the expiration of his lease he is not entitled to that privilege, and if he desires to renew it he must do so under the terms of the act of 1883 (Laws 1883, ch. 74, sec. 19), providing for the manner of appraising leased lands.</p> <p>2. -: Expiration op Lease: Rights oe Lessee. After a lessee has allowed his lease to expire by limitation without making an application to renew the same, the only right preserved to him thereby and by law is that he will not be required to compete for contracts, and the rate of rental will remain the same as that stipulated in his old contract, based, however, on an appraisement of the land made under the provisions of the present statute.</p> <p>3. -: Leases: Apphaisement. A lease of educational lands executed after the passage of the act of 1883 does not entitle the lessee to a voice in the selection of the appraisers called upon to revalue the land for lease purposes, although such a provision is inadvertently allowed to remain in the printed portion of the lease.</p> <p>4. Contracts: Validity. The commissioner of public lands and buildings has no power to hind the state by a contract contrary to or in conflict with the statutes in force at the time of its execution.</p>

<p>Cemetery Associations: Appointment of Receiver. Evidence examined, its substance stated in the opinion, and held sufficient to sustain the findings and judgment of the district court.</p>

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

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

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

<p>Opinion on motion for rehearing of ease reported in 83 Neb. 735.</p>

<p>1. Wills: Construction. If possible without violating well-settled rules of law, effect must be given to every word in a will.</p> <p>2. -:--: Executory Devise. If a will contains an executory devise of real estate after the death of the first taker without issue, the limitation should be construed to mean a definite failure of issue, if capable of that construction.</p> <p>3. -: -: Estate Devtsed. Subsequent provisions in a will will not prevail to cut down an estate in fee simple previously given. They are, however, operative to define the estate devised, and may demonstrate that what without them would be an absolute fee was intended to be an inferior estate.</p> <p>4. -1 — : -: -. A father devised real estate to a son “to have and to hold forever. In the event of the death of John (the son) without lawful issue born, the property herein bequeathed to him shall immediately become the property of my daughter Mary.” The son was not authorized by the will to dispose of any part of the estate, and he died unmarried and without issue subsequent to his father’s demise. Held, That, since the property could not vest “immediately” in the daughter unless the son survived his father, the will refers to the event of the son’s death subsequent to his father’s dissolution. Held, further, that the will vested the son with a base or determinable fee, and, under the foregoing facts, the daughter Mary took an estate in fee simple immediately upon the death of her brother John.</p>

<p>1. Landlord and Tenant: Option to Purrohase: Consideration. A provision in a lease granting the lessee an option to purchase the property during his term “at any price offered by a third party satisfactory to said Runner” (the lessor) is supported by the consideration paid for the lease, and cannot, without the lessee’s consent, be revoked during the period granted for the exercise thereof.</p> <p>2. -: -: Specific Performance. And, if the lessor during the term sells the land to a third person without first giving the lessee an opportunity to purchase, the latter’s right to a specific performance of his contract will not be destroyed by his demand for an abstract and a suggestion that the deed be delivered and the purchase price paid at the lessee’s residence.</p> <p>3. -: -- — : Notice to Subsequent Grantee. If a vendee is informed, preceding his purchase, by a lessee in possession that the tenant claims to own the real estate, the purchaser will stand in the shoes of his grantor, and may be compelled to convey, precisely as his vendor would have been coerced to perform if the conveyance had not been made.</p> <p>4. Specific Performance: Texdeh. When the owner of real estate expressly repudiates and refuses to perform his contract for a sale thereof, a formal technical tender is not a condition precedent to a suit for specific performance.</p>

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

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

<p>1. Appeal: Witnesses: Province of Jury. The jury are the judges of the credibility of the witnesses; and the mere fact that the testimony of a party to a suit on the second trial of a cause is different from that given by him at a former trial is not sufficient to warrant the appellate court in setting aside the verdict.</p> <p>2. Evidence examined and set out in the opinion, held sufficient to sustain the verdict of the jury.</p> <p>3. Instructions examined and set out in the opinion,- held not erroneous.</p>

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

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

Original action in quo warranto to determine the rights of respondents to office as members of the board of education of state normal schools.

<p>Pleading: Demurree: Waives of Error. Where, after a demurrer to an answer has been sustained, the defendant takes leave to file, and does file, an amended answer, the ruling upon the former cannot be reviewed in this court, the filing of the amended answer being a waiver of the exception.</p>

<p>Error to the district court for Phelps county: Harry 5. Dungan, Judge.</p>

<p>1. Appeal: New Issues. A prayer for. judgment in the district court for a less sum than was demanded by plaintiff in the county court, where the action originated, does not constitute a val-iance, or amount to a change of issue; and, where the defendant on 'appeal sets forth in his answer other defenses than those presented by him in the county court, he will not be permitted to assail plaintiff’s reply to such new defenses as creating new and different issues from those tried in the court below.</p> <p>2. Accord and Satisfaction. A check for a less amount than the contract price of a1 certain lot of corn sold and, delivered was sent by the debtor to the creditor without any condition as to its acceptance. It was accompanied by a statement in the nature of a set-off which, if allowed, would 'balance the account. The check was accepted, deposited with a bank for collection, and suit was brought by the creditor against the debtor to recover the price of the corn on the same day the check was received. Held, That the acceptance of the check was not a bar to an action to recover the balance of the debt, and did not constitute an accord and satisfaction.</p> <p>3.-: Burden of Proof: Directing Verdict. The defendant has the burden of proof to maintain the defense of accord and satisfaction; and, if he fails to establish all of the facts necessary to constitute such a defense, it is proper for the court to direct the jury to return a verdict for the plaintiff.</p>

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

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

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

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

<p>1. Cities: Repavement: Remonstrance: “Owner.” An executor or an administrator in the possession of and exercising complete control over the real property of his decedent, if his authority to remonstrate is not challenged by the heirs or devisees of said decedent, is an owner of such real estate within the meaning of the statute authorizing the owners of 50 per cent, of the foot frontage of real estate subject to special assessments within an improvement district by remonstrating to deprive the city council of power to repave the streets within said district at the expense of the real estate situated therein.</p> <p>2. -: -: -: -. A guardian in lihe control of the real estate of his ward, is also an owner within the meaning of said statute. So, also, the surviving spouse of the owner of a homestead and a tenant in common are owners.</p> <p>3. -: -: -: Sion ature oe Corporation. The name of a corporate owner of real estate subject to such an assessment may lawfully be affixed by the president thereof to such a remonstrance.</p> <p>4. -: -: -: Signing bx Initial. Names signed by initial which Identify the remonstrant by reference to the property owned by the signer should also be received, where objection is not made by the council to the fact that the first name is not signed in full.</p>

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

<p>1. Rape: Evidence. In prosecutions for rape, where the defendant testifies and unequivocally denies committing the offense, the testimony of the prosecutrix as to the main fact must be corroborated to uphold a conviction.</p> <p>2. -: -. In such a case, after the prosecutrix has testified to a commission of the offense, it is competent to prove in corroboration of her testimony as to the main fact that, recently after' the alleged outrage, she made complaint to those to whom a statement of such an occurrence would naturally be made; but on direct examination such testimony should be confined to the bare fact that complaint was made, and details of the event, including the identity of the person accused, are not proper subjects of inquiry, unless the complaint was a spontaneous unpremeditated statement so closely connected with the act as to be part .of the res gestes.</p> <p>3. -: Instructions. In the trial of a ease for rape, it is error for the court to inform the jury that such complaint is a corroborating circumstance, but the jury should be permitted to give it such weight in that regard as to them may seem proper.</p> <p>4. Cases Distinguished. Fitzgerald v. State, 78 Neb. 1, and Mott v. State, 83 Neb. 226, distinguished.</p>

<p>1. Bastards: Evidence. In a prosecution for bastardy, proof that defendant promised to marry complainant, when informed of her pregnancy, may be admitted to corroborate her testimony as to paternity, where the promise was voluntarily made without reference to a compromise or settlement.</p> <p>2. Appeal: Exclusion or Witnesses: Review. An order excusing a witness without permitting him to testify for the reason that he violated a rule excluding witnesses from the courtroom cannot be reviewed in absence of an exception.</p> <p>3. -: -: Harmless Error. An order excusing a witness without permitting him .to testify for the reason that he violated a rule excluding witnesses from the courtroom cannot be made the basis of a reversal, where the record fails to show that appellant was prejudiced by the ruling.</p> <p>4. -: Discretion of Court. Whether complainant’s answer to a question at a preliminary hearing in a bastardy case should be read a second time to the jury in the district court, because misstated by her counsel in his argument, is a matter for the determination of the trial court, and its ruling thereon will only be reversed for an abuse of discretion.</p>

<p>1. Pleading: Sueeiciency. A petition disclosing by alleged facts that defendant received a payment of purchase money on a land contract 'which was terminated under circumstances showing that in justice and fairness the money ought to be returned to plaintiff states a cause of action.</p> <p>2. Limitation of Actions: Action eor Money Had.and Received. The statute of limitations does not begin to run against an .action for money had and received, where the suit is brought by a purchaser of land for the sole purpose of recovering a payment thereon under a contract violated by defendant, until the contract has been terminated.</p>

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

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

<p>1. Insurance: Instructions. In an action on a policy of accident insurance, which provides that the company shall be liable for the death of the assured resulting from bodily injuries effected through external, violent and accidental means which, independently of all other causes, produced his death, it is error to in- ■ struct the jury that there may be a recovery under such policy if they find that the death resulted proximately and as the moving cause of the accident, where “there were other causes that accelerated, or, even being added, resulted in death.”</p> <p>2. Appeal: Instructions. And when such an instruction has been given, and the jury while considering of their verdict request a further instruction from the court as to whether or not they are permitted to render a verdict for the plaintiff if they find that the death of the assured “was caused by the sum of the two causes,” the court should answer said request, “No”; and a refusal so to do, when requested by defendant, is reversible error.</p>

<p>Opinion on motion for rehearing of case reported in 84 Neb. 821.</p>

<p>Appeal: Dismissal. Where the record in a law action shows the filing of a motion for a new trial, but no ruling thereon by the trial court, the appeal will be dismissed as prematurely taken.</p>

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

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

<p>Ejectment: Adverse Possession: Evidence. On a trial in an action in ejectment where the defense was that the premises involved had been in the open, adverse and continued possession of the defendant for more than the statutory period of limitation, and the trial court found upon sufficient evidence that the possession of the defendant, although for more than ten years, had been under and by permission and license of plaintiff’s grantors, the question of the competency and sufficiency of plaintiff’s proof of ownership is not material, and the judgment in favor of plaintiff for the possession of the property will be affirmed.</p>

<p>Intoxicating Liquors: License: Petition. Upon a hearing of an application for a license to sell malt, spirituous and vinous liquors in the village of B., it was stipulated that said village contained 43 resident freeholders and no more. The petition of the applicant contained 23 names. Two of the signers were members of the village hoard, hut did not vote on the question of the issuance of the license, although both were present and testified as witnesses for the applicant upon the hearing. The evidence ■ failed tó show that one of the signers was a resident of the village of B., and no proof was offered that the name of another person appended to the petition was signed by her or with her knowledge or consent. Held, That under a general denial, and specific denials that the petition was signed by a majority of the resident freeholders of the village, the license should be refused.</p>

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

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

<p>1. Criminal Law: Accused as Witness: Credibility: Instructions. Where a person on trial for a crime testifies in his own behalf, he becomes as any other witness, and his credibility is to be tested by the same rules ás are legally applied to other witnesses. It is proper for the court to so instruct the jury, and in addition thereto to inform them that in determining the credibility which shall be accorded to his testimony they may take into consideration the fact that he is interested in the result of the prosecution; but it is error for the court to inform the jury that as a general rule the witness who is interested in the result of the suit will not be as honest, candid and fair in his testimony as one who is not so interested.</p> <p>2. Case Overruled. So much of the opinion in Clary v. State, 61 Neb. 688, as upholds such an instruction is disapproved and overruled.</p>

<p>Case Pollowed. Holmes v. State, ante, p. 506, followed.</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>Executors and Administrators: Allowance to Heir. Under the provisions of section 176, ch. 23, Comp. St. 1905 (Ann. St. 1903, sec. 5041), as it stood before the amendment of 1907, the heir at law of the deceased, if there be no surviving husband and wife, is entitled to the specific articles described therein, whether the deceased dies testate or intestate, or whether the heir, accepts . the provision made for him in the will, if any, or not. Such, also, is the case with the surviving spouse. In re Estate of Fletcher, 83 Neb. 156.</p>

<p>1. Negligence, Elements of. In order to constitute actionable negligence, there must exist three essential elements, namely, a duty or obligation which the defendant is under to protect the plaintiff from injury; a failure' to disharge that duty; and injury resulting from the failure.</p> <p>2- -: Pleadi.no. The petition must allege these essential elements, and the proof must support tb,e allegations, or there can be no recovery.</p> <p>3. Evidence examined, and held insufficient to support the material and necessary allegations of the petition.</p>

<p>1. Statute of Frauds: Petition: Sueeiciency. Where a petition discloses that the contract in suit is for. the sale of chattels, and in its inception was within the statute of frauds, the pleader should state some fact sufficient in law to talte the contract without the statute; but, if he alleges facts from which it is possible to logically infer that the defendant received and accepted as owner part of the property sold, the pleading is not subject to a general demurrer because of the invalidity of the contract.</p> <p>2. -: Sales: Delivery: Acceptance. To satisfy the statute of frauds, the vendor must deliver, part of the chattels with the intention on his part of vesting the right of possession in the vendee, and the vendee must receive and accept the property; but any act by the vendee in connection with, or after, the receipt of the property sold, from which it may fairly be inferred that his possession is that of an-owner, presents a question of fact for the jury to determine whether the act was performed with the intention of thus accepting the property.</p> <p>3. -: -: Acceptance: Rescission. Such receipt and acceptance will not be invalidated by a subsequent return of the chattels to the vendor, if he does not consent to a rescission of the contract.</p> <p>4. Appeal: Evidence. A verdict rendered upon conflicting evidence in an action at law will not be set aside on appeal unless it is manifestly wrong.</p>

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

<p>Appeal from the district court for Scott’s Bluff county: Hanson M. Grimes, Judge.</p>

<p>1. Adverse Possession. The statute of limitations will not run in favor of an occupant of real estate unless his possession is under a claim of right or ownership, but the mere fact that while in possession he has been under a mistake as to the correct boundary of his tract will not render his possession permissive nor toll the statute as to the land within his inclosure and without his true boundary.</p> <p>2. New Trial: Newlt Discovered Evidence: Diligence. A litigant is not entitled to a new trial on the ground of newly discovered evidence, unless it appears that he exercised due diligence before trial to procure such evidence', and that he was not negligent in failing to produce it during the trial.</p>

<p>1. Pleading: Amendment. If plaintiff’s petition is prepared, signed and verified by his attorney, and by mistake an erroneous, statement is included therein, the court should before judgment, upon terms just and equitable to all parties, permit the litigant to withdraw that allegation.</p> <p>.2. Dismissal. A plaintiff may, as a matter of right, under section 430 of the code, dismiss his action without prejudice at any time before its final submission to the court.</p> <p>3. Pleading: Cross-Petition: Judgment. If a defendant desires an affirmative .judgment against the plaintiff, he should state in his answer the ultimate facts to support his contention. If he fails to allege an essential fact, but it is pleaded by his adversary, an affirmative’ judgment in defendant’s favor may be sustained by the pleadings.</p> <p>4. Vendor and Purchaser: Recitals in Deed: Notice. The word “trustee” following the name of a grantee in a deed is notice that he may not be the owner of the real estate conveyed, and is sufficient to put those dealing with him concerning the property upon reasonable inquiry as to the existence and nature of the trust.</p> <p>5. Mortgages: Powers of Trustees: Presumptions. The presumption ordinarily is that a trustee does not have authority to mortgage the trust estate, and mortgagees are bound to exercise reasonable diligence to ascertain whether that power exists.</p>

<p>Brokers: Action eor Commissions: Estoppel. A broker was duly authorized to sell defendant’s real estate for $25 an acre, $3,000 of the consideration to be paid in cash, and the “balance $1,000, payments at 6 per cent.” A bona fide purchaser was procured, ready, able and willing to buy the land at said price. He paid the broker $3,000, and offered to pay the remainder of the purchase price upon the execution of a deed conveying the land to him. Defendant refused to convey for the sole reason that he wanted a greater price for his land. Held, That, in a suit brought by the broker to recover his commission, defendant was estopped to defend on the ground that by the contract he had the right to demand that all of the purchase price in excess of $3,000 should be evidenced by promissory notes maturing within some reasonable period to be fixed by the payee thereof, and that the offer to pay all of the purchase price in cash was not a compliance with the broker’s contract.</p>

<p>1. Taxation: Extent oe Power. “The taxing power vested in the legislature is without limit, except such as may be prescribed by the constitution itself.” State v. Lancaster County, 4 Neb. 537.</p> <p>2. -: Constitutional Provisions: Construction. “The maxim, ‘Expressio unius est exclusio alterius,’ does not apply in the com strurtion of constitutional provisions regulating the taxing power of the legislature.” State v. Lancaster County, 4 Neb. 537,</p> <p>3. -: Corporations: Occupation Tax. Tlie grant of a charter to a corporation authorizing it to carry on a certain business does not import that it may engage therein without contributing to the support of the government by the payment of an occupation tax.</p> <p>4. —.-: -:--: Validity. Chapter 25, laws 1909, is not obnoxious to section 1, art. IX of the constitution.</p>

Original application for a writ of mandamus to compel respondents, the board of regents of the university of Nebraska, to equip and maintain two agricultural experimental stations, as required by law.

<p>Appeal: Bill of Exceptions. Rulings of the district court in admitting or rejecting evidence cannot he reviewed in the supreme court after the bill of exceptions has been quashed.</p>

<p>1. Appeal: Directing Verdict: Failure to Except. Assignments of error, when based alone on the giving of a peremptory instruction to which there was no exception, may be disregarded on appeal.</p> <p>2. Appeal: Motion for New Trial. Where the jury in obedience to a peremptory instruction returns a verdict for defendant in an action of replevin and fixes the damages for detention of the property, error in assessing the amount, to be available on appeal, should be specifically assigned in the motion for a new trial.</p>

<p>Appeal: Motion for New Trial. Where the allowance of a peremptory writ of mandamus results from the trial of an issue of fact, an overruled motion for a new trial is a necessary part of a transcript filed in the supreme court for the purpose of reversing a judgment sustained by the pleadings.</p>

<p>1. Appeal: 'Final Judgment. “To obtain the review of a case in this court, there must be a final judgment upon the merits of the case in the court below.” Nichols, Shepard & Go., v. Hail, 5 Neb. 194.</p> <p>2. -: Motion for New Trial. If the consideration of a record of the district court requires the examination of issues of fact or errors of law occuring at the trial, which could only be preserved by a bill of exceptions, a motion for a new trial in the district court is a condition precedent to a review of that record in this court.</p>

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

<p>1. Carriers: Pleading. Tile petition examined, discussed in the opinion, and held to state a cause of action.</p> <p>2. -: -. Tlie first proviso clause in section 10606, Ann. St. 1907, construed, and held, the exceptions therein noted are matters of defense and need not be negatived by plaintiff.</p> <p>3. Constitutional Law: Parties. A litigant who is not shown to have been prejudiced by the enforcement of an act of the legislature is not in position to assail such act on the ground of its being unconstitutional.</p> <p>4. Statutes: Presumptions. The legislature is presumed to know the general conditions surrounding the subject matter of legislative enactment, and it will be presumed it knows and contemplates the legal effect that accompanies the1 language it employs to make ■ effective the legislative will.</p>

<p>Appeal from the district court for Gage county: Leander M. Pemberton, Judge.</p>

<p>1. Contempt: Notice: Briefs. “Where an offense in the nature of a contempt is committed in the presence of tfie court, notice to the offender is not usually essential before punishment (7 Wall. 372); and it is immaterial, where the contempt consists in the use of offensive language, whether it be spoken openly or presented to the court in a written on printed argument (19 How. 13).” In re Woolley. 11 Bush (Ky.) 95.</p> <p>2. -: Briefs. “A petition (brief) for a rehearing is not a pleading, but an argument addressed to the court and the individual members of the court; and to incorporate into such argument contemptuous, scandalous, or insulting matter, is to commit in open court an act constituting a contempt on the part of the attorney.” In re Woolley, 11 Bush (Ky.) 95.</p> <p>3. -: Disavowal. Where the1 matter spoken or written is of itself necessarily contemptuous, offensive and insulting, the disavowal of an intention to commit a contempt or reflect upon the court or any member thereof cannot justify the' act, although it may be considered as tending to excuse, and in mitigation.</p> <p>i.-: Powers of Courts. The power to punish for contemptuous, insolent, or insulting conduct or language is inherent in every court having common law jurisdiction, without any expressed statutory authority. “The right of self-preservation is an inherent right in the courts, not derived from the legislature, and cannot be made to depend upon the legislative will.” In re Woolley, 11 Bush (Ky.) 95.</p> <p>5. -; Suspension of Attorney. “An open, notorious, and public insult to the highest judicial tribunal of the state, for which an attorney contumaciously refuses in any way to atone, may justify the refusal of that tribunal to recognize him in the future as one of its officers; and in a proceeding against him for contempt, if the contumacy be therein manifested, there- is no reason why the order revoking his authority until he does comply with the reasonable requirements of the court may not be made.” In re Woolley, 11 Bush (Ky.) 95.</p> <p>6. -: -. Under a citation to an attorney of this court requiring him to appear before the court on a day and hour designated to show cause why he “should not be dealt with for contempt on account of the language contained in” a brief in support of a motion for rehearing, filed in the office of the clerk of the court, it is within the jurisdiction of the court to indefinitely suspend such attorney from practice.</p> <p>7. -: Duty of C'oukt. A part of the language used and presented in the brief referred to is set out in the opinion, and it is held to be the duty of the .court to take notice of the same and to apply'the required disciplinary penalty.</p> <p>8.-: Indefinite Suspension. The judgment of suspension was made “indefinite,” as stated from the bench, in order that, if at any time respondent made the necessary retraction and explanation to relieve and remove the contemptuous quality of the language used, the judgment would be vacated and the suspension removed, no intention of a permanent disbarment or even of a suspension for a definite time being intended. Until such time as respondent makes the proper and usual amends, the order will stand as made.</p>

<p>1. Bastards: Evidence. Evidence of the unchastity of a complainant in a bastardy proceeding, outside the period of gestation, is irrelevant to the issues presented for trial.</p> <p>2. -: -. By section 5, ch. 37, Comp. St. 1909, it is provided that at the trial in a bastardy proceeding “the examination before the justice shall be given in evidence.” Whether it was the purpose of the legislature to require, or permit, the examination to be read without reference to the usual rules of evidence, or whether or not it is within the discretion of the district court to pass upon and decide as to the competency, materiality or relevancy of the evidence taken before the justice of the peace, quaere.</p> <p>3. Trial: Instructions. Under the rule stated in Johnson v. Johnson, 81 Neb. 60, it is held that an instruction to the trial jury, that if a witness had knowingly sworn falsely to any material matter, they might, if they saw fit to do so, disregard all his testimony, “except such portions as are corroborated by the testimony of credible witnesses,” is not prejudicially erroneous by reason of the statement of the exception.</p>

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

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

<p>1. Appeal: Refusal to Direct Verdict: Law of Case. Where, on an appeal from a directed verdict in favor of the defendant in a personal injury ease, this court has held that the cause should have heen submitted to the jury on its merits, and the evidence upon a second trial is practically the same as on the first trial, upon a second appeal such holding will he treated as the law of the case; and error cannot he predicated on a refusal of the trial court to again instruct the jury to return a verdict for the defendant.</p> <p>2. -: Evidence. In such a case it cannot be urged that the evidence is insufficient to sustain a verdict for the plaintiff.</p> <p>3. -: Instructions: Harmless Error. An unnecessary or inappropriate ' instruction is not a ground for reversal, unless it ' is shown to have worked an injury to the rights of the complaining party; and where it is apparent that the giving of the instruction was not in any manner prejudicial to the rights of such party, the giving of such an instruction will he held to be error without prejudice.</p> <p>4. Landlord and Tenant: Injury to Tenant: Instructions. In a personal injury case where the plaintiff has introduced substantial evidence showing that the injuries complained of are of a permanent nature, it is not error to instruct the jury that “the plaintiff is entitled to recover for physical pain and mental suffering, if any, which the evidence shows she has endured, or which it is reasonably certain from the evidence she will endure in the future as a natural and direct result of such injuries, taking into consideration the age of the plaintiff at the time the accident happened and her reasonable expectancy of life.”</p> <p>5. Appeal: Instructions. Other instructions examined, discussed in the opinion, and held to have been properly given.</p> <p>6. -: Refused Instructions. Where the trial court has, upon his own motion, properly instructed the jury upon all of the issues involved in a case, it is not error to refuse additional instructions requested hy either party.</p>

<p>Appeal: Trial to Court: Findings. The findings of fact in a law action tried to a court without the intervention of a jury are entitled to the same weight as the verdict of a jury in a like case.</p>

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

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

<p>Criminal Law: Misdemeanors: Fines: Imprisonment. When the district court assesses a fine in a misdemeanor case, it may, in its discretion, order the defendant to remain in the county jail until the fine and costs are satisfied. If no such order is made, the clerk has authority to issue an execution commanding the sheriff to collect the fine and costs by a levy upon and a sale of defendant’s goods and chattels, and, for want thereof, to levy upon defendant’s body and commit him to the county jail, there to remain until the fine and costs shall be paid, secured to be paid, or otherwise discharged according to law.</p>

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

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

<p>1. Waters: Irrigation Districts: County'Boards: Powers. “An order of the county board establishing and defining the boundaries of an irrigation district in pursuance of the provisions of section 2, art. Ill, ch. 93a, Comp. St. (Ann. St., sec. 6823), is conclusive, at least in a collateral proceeding, on the question whether the lands included therein will be benefited by irrigation by the system therein contemplated; aliter, on the question whether any of such lands cannot, from some natural cause, be irrigated thereby.” Andrews v. Lillian Irrigation District, 66 Neb. 461.</p> <p>2. -: -: Detaching Lands. “After an irrigation district has been duly organized, the statutory procedure prescribed in said chapter for detaching lands, other than those which cannot from some natural cause be irrigated, is exclusive.” Andrews v. Lillian Irrigation District, 66 Neb. 461.</p> <p>3. Appeal: Sbecial Findings. In a case appealed to this court upon ' the special findings of the trial court, this court cannot add to or take from the language of the trial court or enlarge the scope of its findings.</p> <p>4. Waters: Irrigation Districts: Detaching Lands: Evidence. Where the owner of land proceeds in equity to have the same detached from an irrigation district, in order to defeat the jurisdiction of the county board it must be clearly shown, and in like manner found by the court, that the land embraced within the district is in fact such that from some natural cause it is non-irrigable, or 'is expressly exempted by statute from the operation of the law providing for the organization of irrigation districts ■and the taxing of lands within the boundary of such district for irrigation purposes.</p>

<p>1. Appeal: Instructions: Review. Where the evidence would sustain no verdict except that rendered hy the jury, assigned errors in giving or refusing instructions may he disregarded on appeal.</p> <p>2. New Trial: Newly Discovered Evidence: Discretion oe Court. A motion for a new trial on the ground of newly discovered evidence is addressed to the sound judicial discretion of the court, and will not he overruled unless a clear abuse of discretion is shown.</p> <p>3. Street Railways: Injury to Pedestrian: Negligence. The evidence examined, discussed in the opinion, and held sufficient to sustain the verdict of the jury.</p>

<p>1. Marriage: Annulment: Burden of Proof. In an action brought to annul a marriage on the ground of fraud, the burden is on plaintiff to establish the fraud relied upon by him to effect the annulment.</p> <p>2. -: -: Evidence. The evidence examined and discussed in the opinion held insufficient to sustain the judgment of annulment of the marriage.</p>

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

<p>Rehearing of case reported in 84 Neb. 116.</p>

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

<p>1. Notes: Action: Burden of Proof. In an action on a promissory-note declared upon in the usual form, the answer being a general denial, the burden of proof is on the plaintiff to show the execution and delivery of the instrument sued on, and evidence in defense tending to show a material alteration of the note after its execution and delivery does not shift the burden of proof to tho defendant.</p> <p>2. Appeal: Conflicting Evidence. A verdict of the jury in an action at law rendered on conflicting evidence will not be set aside by a reviewing court.</p>

<p>1. Taxation: Void Decree: Constructive Service. A decree foreclosing a tax lien based upon service by publication, prior to the year 1909, where the owner of the land is a resident of this state upon whom personal service of summons could have been made, and the affidavit for service contains no statement which would authorize constructive service upon the land against which the taxes were assessed, is void; and such a decree may he attacked in an action to redeem the premises from the lien for taxes and remove the cloud created thereon by such void decree. Humphrey v. Hays, ante, p. 239.</p> <p>2. -- — : .-: Suit to Redeem. Such an action may he maintained, not only against the purchaser of the premises under such void decree, hut likewise against those claiming under him.</p>

<p>1. Appeal: Conflicting Evidence. In a suit on a written contract to pay rent, where the execution of the contract is denied, the verdict of a jury rendered upon conflicting evidence will not he set aside by a reviewing court.</p> <p>2. Pleading: Quantum Meruit: Evidence. In such an action, if the plaintiff’s petition contains sufficient averments, a recovery as upon a quantum meruit may be had; but without proof of the reasonable rental value of the premises there can be no such recovery.</p> <p>3. Appeal: Evidence: Harmless Error. The admission of immaterial evidence does not require the reversal of a judgment, unless it appears that the complaining party was prejudiced thereby.</p>

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

<p>1. Depositions, Exceptions to. An exception to a deposition, on the ground of a defect in the notice, cannot he considered unless made in writing, and filed before the commencement of the trial. Code, secs. 389, 390.</p> <p>2. Evidence examined, and held to support the verdict.</p>

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

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

<p>Criminal Law: Confessions: Instructions. Where the trial court in a prosecution for murder admits proof of a confession challenged by defendant as involuntary, and by instructions submits to the jury on conflicting evidence the issue thus raised, they should be directed to disregard the confession, if they find from all the evidence that it was not voluntarily made.</p>

<p>1. Action: Contract: Public Policy. “An action cannot be maintained for tbe consideration of a contract upon an alleged performance by tbe plaintiff, if sucb contract is against public policy.” Clarice v. Omaha & 8. W. R. Co., 5 Neb. 314.</p> <p>2. -: -: —-. “If sucb contract is fully executed tbe court will not disturb it, but leave tbe parties to abide tbe conse-' quences.” Clarice v Omaha & 8. W. R. Co., 5 Neb. 314.</p>

<p>Notes: Joint Makers: Release. The unconditional release of one of several makers oí a joint and several promissory note, without the consent of the other makers thereof, operates as a release of all.</p>

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

<p>1. Intoxicating Liquors: Excise Boards: Police Power. The excise hoard of the city of Lincoln, in pursuance of the provisions of section 7963, Ann. St., 1909, established the following rule: “It shall be unlawful for any railroad company, express company, or other common carrier, or agent, officer or other representative of any such common carrier, to make delivery to any person of intoxicating liquors within said city at any other point than the principal and usual place of business of said common carrier therein; and every common carrier bringing malt, spirituous or vinous liquors into said city shall be required to establish one definite place of business therein at which all deliveries of such liquors shall be made to dona fide consignees thereof in person only.” Held, the establishment of the rule, so far as involved in the facts discussed in the opinion, comes within a reasonable exercise of the police power of the officers of the city.</p> <p>2. -: -: Rules: Validity. A rule of an excise board of the city of Lincoln will not be held to be invalid merely because it imposes restrictions upon the delivery of intoxicating liquors in the city by a common carrier or its agents that it would not be permissible to impose upon the delivery of ordinary articles of commerce.</p>

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

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

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

<p>1. Quieting Title: Equity. A entered 160 acres of land in Lincoln county under the homestead laws of the United States. After acquiring title he executed a mortgage thereon for the sum of ?400. In 1896, owing to the drought and a failure of crops, he removed from the property, failed to pay the mortgage or any interest on the debt thereby secured, and failed to pay any taxes from the year 1895 to and including the year 1900. He never returned to the land nor saw it after his removal, neither did he seek any information as to the effect upon the title caused by his defaults. During his absence the land was sold for taxes under a void judicial sale, B, the grantee of the purchaser, taking and retaining possession under a belief that his title was perfect. In 1907, being informed that his title might be questioned, he, through an agent, discovered the original owner A, and by correspondence a contract was made by which B, the occupant of the land, was to pay $200 and receive a quitclaim deed. An unsigned deed was' sent to A for execution, and with it a receipt issued by a bank and payable to his order upon delivery of the executed deed. Instead of fulfilling his contract he conveyed the land to C for the consideration of $200, and a contract for an equal division of the net profits to be realized upon the termination of the litigation to follow, and the sale of the land. C had full knowledge of the contract between A and B. Up to and> pending the contract between A and B, A believed he had no title to the land, believing that he had been divested thereof by a foreclosure of the mortgage, and B believed that his title was good. A had been informed that B had a tax title to the property. At the time A left the property, and for some years thereafter, it had little, if any, market value. At the time of the •negotiations and contract the value had increased from about $200 to $300 to from $2,000 to $3,200. The mortgage, though presumably barred, was unpaid, amounting at that time to about $1,000. To recover the land it would be necessary to redeem from the taxes paid by B and his grantors for the years 1895 to 1907, inclusive. Held, That under these circumstances the consideration of $200 for a quitclaim deed was not so small as to render the contract unconscionable, and a court of equity would enforce it.</p> <p>2. -: -: Bona Fide Purchaser. Held, also, that C had no greater or higher equity than A would have had, and, having purchased with knowledge of B’s purchase, he was bound thereby, and his suit to quiet the title must fail.</p> <p>3. Vendor and Purchaser: Bona Fide Purchaser. “A party who purchases real estate with knowledge that another has a contract of purchase for the same is not a dona fide purchaser; and if he acquires such knowledge at any time before the payment of the - consideration, he will not be protected as a purchaser in good. faith.” Teiih v. McMurtry, 26 Neb. 341.</p> <p>4. Quieting Title: Purchaser with Notice. “If A enters into a contract to sell land to B, and without complying with the contract sells the land to G, B may compel the purchaser to convey to / him, provided he is chargeable with notice at the time of his purchase of B’s equitable title under the agreement.” Veith v. McMurtry, 26 Neb. 341.</p> <p>5. -: -. “A purchaser with notice is liable to 1he same ■ equity, stands in his placo, and is bound to do that which the person he represents would be bound to do by the decree. He takes the estate subject to the charge, and stands in the place of his vendor.” VeitJi v. McMurtry, 26 Neb. 341.</p> <p>6. -: Mortgages: Equity. The title to real estate will not be quieted as against an unpaid mortgage, though apparently barred by limitation, without the payment or tender of the amount of the mortgage, with legal interest.</p>

<p>1. Pleading: Sueeicienoy. “When the sufficiency of a petition is not attacked until after judgment, all reasonable intendments should be indulged in support of the judgment.” Merrill v. Equitable Farm é Stock Improvement Go., 49 Neb. 198.</p> <p>2. Habeas Corpus: Petition: Copy oe Process. Where the petition for habeas corpus fails to set out any warrant or order of commitment, but stated facts by which it can be reasonably inferred that- the defendant had no such warrant, this will excuse the failure to set out a copy of any process.</p> <p>3. -: Return: Copy oe Process. Where, in such case, the defendant who is charged with unlawfully restraining the plaintiff of his liberty makes his return to the writ, alleging that he holds the plaintiff for and by virtue of a process held by another person, a copy of such process should be set out in or attached to his return in order to show by what authority he restrains the plaintiff, or a sufficient reason assigned for not doing so.</p>

<p>Former judgment of reversál (83 Neb. 193) adhered to.</p>

<p>1. Insurance: Benefit Certificate: Action: Petition. In order to maintain an action to recover the indemnity provided for by a benefit certificate issued by a fraternal beneficiary association, the petition must allege that the plaintiffs are within the class of persons who could be named by the member and accepted by the association as beneficiaries under the statutes governing the association and its by-laws at the time the certificate was issued.</p> <p>2. -:--:--: Change of Beneficiaries. If recovery is sought by persons other than the beneficiary named in the certificate, they must allege facts sufficient to show a change of beneficiaries proposed by the member and assented to by the association.</p> <p>3. -: -: -: ■- — . An allegation of notice by the member to an officer of a local subordinate lodge of his desire to change his beneficiary to certain of his wife’s relatives, not named in such notice, and to which no reply was made, is not sufficient to authorize such proposed, but unnamed, persons to maintain the action, unless it be alleged that such officer had power to effect the desired change or bind the defendant association in relation thereto.</p> <p>4. --: -: -: Petition. Petition examined, and held that the facts therein stated were not sufficient to show that the deceased member actually named the plaintiffs as his beneficiaries.</p> <p>5. -: -: -: -- — . Where recovery is sought by those not within the class of persons who could be named as beneficiaries, and their right to recover is claimed by reason of the provisions of a certificate other than the one on which the action is predicated, it is incumbent upon the plaintiffs to plead facts which would authorize their designation as beneficiaries under the terms of the former certificate and the laws by which the association was governed at the time it was issued.</p>

<p>1. Master and Servant: Injury to Servant: Appeal: Conelicting Evidence. Since the liability of the defendant in this case rests primarily upon the question of whether or not a certain command was given by a foreman to a servant, and as to this there is a direct conflict in the evidence which has been submitted to the jury under proper instructions, this court must consider as settled by the verdict that the command was given by the foreman as plaintiff alleges.</p> <p>2. -: -: Proximate Cause: Assumption oe Risks. The plaintiff, with a gang of other laborers, was engaged under the direction of a foreman in removing rails from a railroad track. The method followed was to remove the spikes upon the inside of the rail, then push or pry the rail in, and, if it had become wedged at the joint by expansion, to attempt to drive the end loose with a sledge-hammer, and, if not loosened in this manner, to push the rails in with a lever at the next joint. The undisputed evidence shows that while loosening the rails, if they had become wedged, the inside of the track is a dangerous position. The plaintiff, in ignorance that the rails were wedged, in obedience to a command of the foreman, stepped inside the rail to pry or lift the rail with a crowbar. Another workman had been directed to pry the rail at the joint. As he proceeded to do this, the rail sprang, striking plaintiff, and others, and severely injuring him. Held, (a) That the proximate cause of the injury was the negligent command to the plaintiff to place himself in a position which, was known, or ought to hav.e been known, to the foreman as one of danger on account of the wedging of the rail, a fact which the foreman knew, and of which the plaintiff was ignorant; (B) that the risk was not one of the ordinary incidents of employment assumed by the plaintiff.</p> <p>3. -: -: Instructions. Since, under the issues, the liability of the railroad company is based solely upon the command given by the codefendant foreman, Olson, an instruction which directed the jury “that, if you find in favor of the plaintiff, you must find against both defendants, as you cannot find against one defendant and in favor of the other” is correct.</p>

<p>Appeal from the district court for Pawnee county: Leander M. Pemberton, Judge.</p>

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

<p>Opinion on motion for rehearing of case reported in 84 Neb. 834.</p>

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

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

<p>1. Cities: Improvement Districts: Boundaries: Notice. It is the duty of a city, when creating an improvement district for a local improvement, to define the limits thereof with sufficient certainty to identify the lots or lands sought to be included therein, and to publish a statement of such limits, in the manner and for the time required by statute, prior to the levying of any assessment upon, adjacent property to pay for such improvement.</p> <p>2. -: —--: -: -: Jurisdiction. The statutory requirements tor the fixing of such limits and the publication of the same prior to the levying of any such assessment are mandatory and jurisdictional.</p> <p>3. -: Speciai Assessments: Coluatekad Attack. Where a special assessment for such improvement is made without a compliance with such jurisdictional requirements, such assessment is void, and may be assailed collaterally.</p>

<p>1. Mortgage on Homestead: Delivery. A mortgage upon the homestead, executed by husband and wife upon agreement to secure certain claims of the mortgagee and left with the wife by the husband, who thereupon absconded, may be delivered by the wife, notwithstanding certain ■ instructions to the wife by the husband as to conditions of delivery had not been complied with . by her, the mortgagee not being aware of such instructions, and receiving the same in good faith as a compliance with the agreement to give such security.</p> <p>2. Mortgages: Collateral • Securities. Upon the facts stated in the opinion, it is helé that the mortgage in question was not given in settlement of the plaintiff’s claims, but as security collateral thereto.</p> <p>3. Statute of Frauds. The execution and delivery of a note and mortgage to secure the debt of another is sufficient compliance with the statute of frauds.</p> <p>4. Mortgage on Homestead: Consideration: Evidence. C., being cashier of a bank in which there was a deposit in the name of the wife of M., agreed with M. that, if the deposit was allowed to remain in the bank, he, C., would secure M. and his wife against all loss. Upon this agreement the deposit was allowed to remain in the bank, and C. and his wife executed a mortgage upon their homestead to M. as mortgagee pursuant to said agreement. Soon afterwards the bank failed. Helé, That the mortgage is a valid security for said deposit and the same constitutes a good consideration therefor.</p> <p>5. Statutes: Repeal by Implication. Whether section 5053, Ann. St. 1909, is repealed by implication by the married women’s act of 1871 (laws 1871, p. 68), quwre.</p> <p>6. Executors and Administrators: Defense by Administratrix. When an administratrix has recovered a judgment in favor of her intestate’s estate, and she is made defendant as such administratrix in an action involving the validity of the judgment and the priority of the lien, she may defend the action for all persons interested, notwithstanding that she has married after recovering the judgment.</p> <p>7. Homestead: Liens: Priorities. A mortgage executed and delivered before the lieu of a judgment has attached to the excess value of homestead property is superior to that lien, but the homestead exemption is $2,000 over and above all liens prior to the judgment; and, if the mortgage is subsequent to the lien of the judgment, that lien is not affected by the mortgage. The judgment creditor is entitled to excess value of the property over the homestead right, subject only to such liens as are prior to his judgment.</p> <p>8. Appeal: Bill oir Exceptions. A document offered in evidence and excluded by the court should, at the request of- the party offering it, be incorporated in the bill of exceptions. In no other manner can the ruling of the court thereon be presented to this court for review.</p> <p>9. Judgment: Process: Return. The return of a summons that it was served by leaving at defendant’s “last known place of residence,” etc., is defective, and a judgment rendered on such service is void.</p> <p>10. Mortgages: Foreclosure: Evidence. In an action to foreclose a real estate mortgage there must be some proof that there has been no action at law upon the indebtedness, or that such action, if any, has terminated without collection; but the ordinary rules in regard to proving a negative apply.</p>