Volume 87 — Nebraska Reports

<p>1. Forcible Entry and Detainer: Jurisdiction. A justice of the peace has no jurisdiction to try actions of forcible entry and detainer in which the title to real estate is sought to be recovered, or may be drawn in question, and in such case the district court on appeal has no jurisdiction to try such issue, and should dismiss the action for that reason.</p> <p>2. -: -: Defenses. An equitable title to real estate and possession thereunder may be shown as a defense in an action of forcible entry and detainer. A justice of the peace has no jurisdiction to try such a title.</p> <p>3. -: -. No mere claim of title or assertion that title is drawn in question will deprive a justice of the peace of jurisdiction to try the cause. He must ascertain from the evidence whether the action involves or draws in question the title to real estate. '</p> <p>4. -: -. Forcible entry and detainer is an action to determine the right of possession only. Any evidence tending to show which party is entitled to possession, whether it be title deeds or other written or oral testimony, should be considered. But a justice of the peace can try only the right of possession. If that right depends upon some right of the defendant, whether legal or equitable, in the property itself, he must dismiss the action for want of jurisdiction.</p> <p>5.-: -: Defenses: Estoppel. If title to real estate is sought to be recovered or drawn in question in an action of forcible entry and detainer, questions of- estoppel affecting the right of defendant to assert such title cannot be decided by the justice of the peace.</p> <p>6. -: Evidence. If a son gives to Ms mother money with which to procure a home, and pursuant thereto the money is deposited in a hank to the mother’s credit, and real estate is purchased with a part of said money, and the mother builds a house thereon with the remainder and occupies the same as her home, the fact that the son took the title to the real estate in his own name without the knowledge of his mother at the time will not enable him or his grantee, who took a deed from the son while the mother was in possession of the property, to recover the possession of the property in an action of forcible entry and detainer.</p>

<p>1. Intoxicating Liquors: Action for Damages: Pleading. In an action against licensed saloon-keepers for damages arising from the sale of liquors to plaintiff’s husband causing his death, it is proper to allege and prove that for some time immediately prior to the day of the death of deceased the defendants had sold liquors to the deceased and had thereby caused him to become an habitual drunkard.</p> <p>2.-: -: Evidence. In such action it is not erroneous to allow a witness to testify that he saw the deceased drinking liquors from a bottle on the day of his death as tending to prove the allegation that deceased became intoxicated on that day. Such evidence becomes material if it is shown by the same or other witnesses that the defendants contributed to his intoxication.</p> <p>3. Evidence: Records. The village records of the bond given by a licensed saloon-keeper, kept by the clerk of the village and identified by him as such, are competent prima facie evidence of the execution and delivery of the bond.</p> <p>4. -: Review. When a witness has stated all of the facts within his knowleuge as to the employment and habits of deceased, it is not prejudicial error to refuse to allow the witness to answer the question whether he was or was not an industrious man.</p> <p>5. Intoxicating Liquors: Action for Damages: Liability. If a saloon-keeper sells liquor knowing or having good reason to believe that it is intended for deceased, or intended that the deceased shall participate in drinking it and deceased does so participate, he is liable as though he sold to the deceased direct.</p> <p>6. Trial: Instructions. It is erroneous to recite in an instruction certain of the disputed facts in the case, omitting other facts bearing upon the same point, but if the facts so recited are admitted in the pleadings or established without coritradiction such recital of facts is without prejudice.</p> <p>7. Intoxicating Liquors: Action for Damages: Measure of Damages. In an action against licensed saloon-keepers for damages resulting from the sale of liquors, the plaintiff may recover all damages occasioned by the sale. The provisions of section 18 of the act were not intended to limit the measure of damages, bul to simplify the proof in such cases.</p>

<p>1. Statute of Frauds: Sale op Land: Void Contract: Feaud: Right op Action. While an oral contract for the sale of Ifmds, between the owner and a real estate broker, is void under the statute of frauds, as defined by section 74, ch. 73, Comp. St. 1909, yet if such contract is fully executed by the parties to it, and either party is damaged or injured by the fraud of the other, the law gives the injured party the same rights of action as he would have had had the contract been valid in its inception.</p> <p>2. Pleading: Fraud. The petition, stated at length in the opinion, held to state a cause of action.</p>

<p>Rehearing of case Reported in 85 Neb. 226.</p>

<p>Original action by the state to enjoin defendant from carrying out certain contracts.</p>

<p>Judgment: Vacating. A district court has no jurisdiction to vacate its own judgment in a cause after the term at which such judgment was rendered, except by petition in equity, or in accordance with the provisions of section 602 of the code.</p>

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

<p>1. Specific Performance: Evidence. In an action against the widow, who was the administratrix of the estate of her deceased husband, and his heirs at law, for the specific performance of a contract by which it was alleged that plaintiff borrowed of the deceased the money to purchase the land in question, which was paid for the land by the deceased, and the title taken by him as security for the payment of the money loaned, the evidence is examined and found to be sufficient to sustain a finding and decree in favor of plaintiff.</p> <p>2. Appeal: Amendment After Judgment. The action was prosecuted by plaintiff in his own name and on his own behalf, but there was some evidence tending to show that the purchase was intended for his minor daughter. Instead of ordering the deed made to plaintiff, the court directed that it be made to his said minor daughter. Whereupon plaintiff by leave of court amended his petition to correspond with the decree. Held, That the irregularity, if there were such, not being to the prejudice of defendants, they could not be heard to complain.</p>

<p>L Libel and Slander: Province oe Court and Jury. In an action for slander it is for the court to decide in the first instance whether the alleged defamatory language used was slanderous per se if it were susceptible of the meaning attributed to it by the plaintiff in his petition, but for the jury to say whether the defendant by the use of the language intended to convey the idea to those who heard him that plaintiff was guilty of the crime alleged to have been committed and to so charge him.</p> <p>2.-: Question for Jury. It was alleged in the petition, with proper innuendo, that defendant asked plaintiff in the presence and hearing of other persons if he stole corn, stating that his (defendant’s) corn had been stolen, whereupon plaintiff asked defendant if his meaning was to charge him with the crime of stealing the corn, when defendant answered, “I mean just what I say,” and plaintiff again inquired if defendant meant to accuse him of stealing the .corn, when defendant answered, “There is very strong evidence that you did.” Language charging one, in the presence of others, with stealing corn is actionable per se as matter of law. As to whether, by the language used (if so used), defendant intended to charge plaintiff with the crime of stealing corn is a question of fact to be decided by the jury.</p> <p>3.-: Petition. A petition, the charging part of which is set out in the opinion, is held to state a cause of action, and that a general demurrer thereto was improperly sustained.</p>

<p>1. Municipal Corporations: Presentation oe Claims. The word “claims” in section 80, art. I, ch. 14, Comp. St. 1909, relating to cities and villages, applies alone to those arising upon contract, and not upon tort, as for a personal injury caused by the negligence of the city. Butterfield v. City of Beaver City, 84 Neb. 417, and Nance v. Falls City, 16 Neb.- 85, followed and approved.</p> <p>2. --•: -. Said section 80, art. I, ch. 14, Comp. St. 1909, is in force, and was not modified or repealed by chapters 15 and 16, laws 1885.</p> <p>3. Judgment for costs, rendered against plaintiff, who was successful in her suit against the city, reversed and costs ordered to be taxed to the city.</p>

<p>1. Master and Servant: Assumption of Risks: Burden of Proof. A servant assumes the ordinary risks arising from the manner of conducting the master’s business, in "which he is to take part, and from the appliances used therefor, when such risks are known to him, or are apparent and obvious to persons of his experience and understanding, if he voluntarily enters into the employment, or continues in it without complaint or objections to the hazards; the presumption in such case is that such risks have been assumed by him, and in order to recover for injuries caused thereby the burden is upon the plaintiff to establish an exception to the rule. Unless he has done so, it is error to instruct the jury that “the burden is on the defendant to show that the plaintiff has assumed the risk of the accident complained of.”</p> <p>2.-: -: Instructions. In an action by the administrator of the estate of one who was struck and killed by a passing switch engine while employed and working as a section hand or trackman, who it appears knew the dangers and assumed the risks of such employment, it is error to instruct the jury that “It is the duty of the master to exercise reasonable care to provide a safe place for the servant to work.”</p>

<p>1. Landlord and Tenant: Holding Over the Term. Where a tenant under a written lease for one year, with the option of again leasing the premises for one or more years, holds over without exercising his option, his landlord may, if he so elects, consider him his tenant for another year, and thus render him liable for the payment of rent for that period at the rental fixed by the terms of the lease.</p> <p>Termination oe Tenancy. Where, in such a case, and while holding over, the tenant claims the right to terminate tenancy at any time, under conditions expressed in the l.ease, ,’.>ege and prove the existence of the conditions and his -,;gwith, in order to escape the legal consequences of over "we term.</p>

<p>1. Crops: Contract: Construction. One who grows for and agrees to deliver a certain crop to tie owner or possessor of real estate for an agreed price per hundred pounds, under a written contract by which it is expressly provided “that nothing herein contained shall be construed to make the instrument a lease of the premises between the parties hereto, or divest the owner of his title to th.crop,” is a mere cropper, and acquires no’title to any portion of the crop, and cannot sell or mortgage the same or any part of it. without the consent of the owner.</p> <p>2. -■ — : Eight to Sell: Burden oe Prooe. If the cropper claims the right to sell a portion of the crop by reason of a división thereof, or an oral agreement varying the terms of his written contract, the burden is upon him to establish such right by competent evidence.</p> <p>3. -: -: Evidence. Evidence examined, and found insufficient to require the submission of the question of a division of the crop or an oral modification of the written contract to the jury.</p> <p>4. -: Replevin: Demand and Tender. Where the cropper has wrongfully delivered a part of the crop to another than the owner thereof, such owner may maintain replevin therefor without demand, or tender of the cropper’s agreed compensation.</p>

<p>1. Appeal: Remand. Where, on appeal to this court, a case is decided upon the merits and a mandate is issued to the district court commanding it to enter a specific judgment which will finally dispose of all the matters in controversy, the district court has no discretion, but must render a judgment in conformity with the mandate.</p> <p>2. --: -: Notk-e. An objection that one of the defendants was not served with a notice of the appeal will not authorize the district court to again consider the merits of the case or excuse it from complying strictly with the terms of the mandate.</p>

<p>1. Corporations: Powers: Leases. A corporate body having power to execute a lease of property for 25 years has equal power to cancel the lease with the consent of the lessee, and to execute a new lease for a longer term to another lessee.</p> <p>2. Counties: Contracts: Discretion of County Board. In the absence of fraud or collusion, a contract made in good faith by a board of county commissioners on behalf of the county within their powers may not be interfered with by the courts merely because they may be of opinion the county board might have made a better bargain.</p> <p>3. -: -: -. The direction of county affairs is committed to the proper officers of the county, and, in the absence of bad faith or a gross abuse of discretion amounting virtually to such, their proceedings, if regular, may not be reviewed and set aside by the courts in a collateral action by a taxpayer.</p> <p>4. Corporations: Surrender of Lease: Suit to Set Aside: Estoppel. A stockholder in a corporation whose directors have surrendered a lease upon certain real estate, who at the time advocates such surrender, and who, having knowledge that the new lessee is expending large sums of money in repairs and improvements, remains silent four years before- bringing an action as a stockholder to set aside the surrender for want of power in the directors, is estopped to maintain such action.</p> <p>5. - — : Powers: Leases. A corporation authorized to hold real i estate in fee may become lessee in a lease whose term exceeds the term .of its charter existence.</p>

<p>1. Appeal: Verdict: Conclusiveness. Where there is a sharp conflict in the evidence as to a material fact in a case, the verdict of the jury must ordinarily be taken as conclusively settling for a reviewing court that the testimony of the witnesses for the prevailing party as to the disputed fact reflects the actual conditions.</p> <p>2. Master and Servant: Contributory Negligence: Question for Jury. Whether a workman was guilty of contributory negligence in entering a cylinder containing a revolving shaft with arms, at a time when the shaft was out of gear, and after the foreman and other employees in the building where the machinery was used had been informed of the fact that he would enter at that time, was a question for the jury, and their finding in that respect will not be set aside.</p> <p>3.--: Assumption of Risk: Question for Jury. And so, also, under such circumstances, as to the question whether he assumed the risk of so doing.</p> <p>4. -■: Fellow Servants. In this state what is known as the “department rule” as to fellow servants is in force. Union P. B. Go. v. Ericsson, 41 Neb. 1, followed.</p> <p>5. -: -. Under this rule, evidence examined, and field that the deceased, who was a millwright working in any part of the packing plant as directed, and an oiler, employed only in the fertilizer dryer house, were not fellow servants.</p>

<p>1. Insurance: Unihled Chattel Mortgage: Materiality. The' existence in the hands of the mortgagee of an outstanding, unfiled chattel mortgage upon a stock of goods, given as security for a guaranty of a debt of the mortgagor, is a fact material to the risk in a contract of insurance of the goods, even though the instrument contains a clause that it “shall not be valid until and unless filed.”</p> <p>2. -: -: Concealment. If such a mortgage exists, and the applicant for insurance, when inquired of whether the property “is mortgaged 0£ otherwise incumbered,” answers in the negative, this is the concealment of a fact material to the risk, which, under the conditions of the policy that “this entire policy shall be void if the assured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof. * * * This entire policy shall be void * * * if the subject of insurance be personal property and be or become incumbered by a chattel mortgage”— avoids the contract.</p>

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

<p>1. Pleading: Sufficiency after Judgment. Where the sufficiency of an answer to support a counterclaim is not questioned until after judgment, all reasonable intendments should be indulged in support of the pleading.</p> <p>2. Sales: Offer: Acceftance. An affirmative answer to a proposition to purchase coal, followed by a delivery of a major part of the fuel referred to, may be taken as satisfactory evidence of an acceptance of the proposition, although the answer indicates there may be a brief delay in the first delivery of the coal.</p> <p>3. Trial: Instructions: Review. Upon appeal, the district court’s instructions will be considered together, and the losing party will not be heard to complain that an instruction is not precisely and clearly stated if he did not request a proper instruction upon the subject.</p> <p>i. Appeal: Verdict: Conclusiveness. Questions of fact upon conflicting evidence are to be decided by the jury in actions at law, and their finding will not be set aside on tbe ground of the want of evidence to support it unless it appears that the verdict is manifestly wrong.</p> <p>5. Witnesses: Examination. Where a witness is called to contradict the testimony of a former witness who has stated that certain things were said, it is within the discretion of the trial court to permit counsel to ask leading questions.</p> <p>6. An unauthorized declaration of an agent, made after the transaction to which it relates is completed, is not competent evidence against the principal.</p> <p>7. Appeal: Authority oe Agent: Admissibility or Evidence. An agent of a corporation having charge and control of an inferior servant of that master may properly testify to the scope of such servant’s duties, and if he is permitted to deny that servant’s authority to make admissions adverse to their common employer’s interests, the error, if any, will be held without prejudice where it clearly appears, independently of that denial, that no such authority was vested in the servant.</p> <p>8. Evidence: Books oe Account. Where the evidence discloses that a corporation extensively engaged in trade, in the regular course of its business in purchasing merchandise, causes every order to be entered in a book and numbered before it is transmitted to the person with whom the corporation is dealing, and during litigation it becomes important to prove whether an order was written and transmitted, the court in its discretion may, in connection with other evidence tending to prove that such an order was written and transmitted, to the sendee and a proper foundation has been laid by verifying the book and entry therein, permit the corporation to introduce such an entry in evidence.</p> <p>9. -: Secondary Evidence. Where a proper foundation has been laid, secondary evidence may be received of the contents of a document which cannot be produced.</p>

<p>1. Villages: Care of Streets. A village is not required by law to keep its streets in an absolutely safe condition for public use, but only to employ reasonable diligence to keep them in a reasonably safe condition for the use of persons passing over them in the exercise of ordinary care and caution.</p> <p>2. Appeal: Instructions: Review. Instructions will not be reviewed in this court if not excepted to in the district court by the complaining party.</p> <p>3. Trial: Negligence: Question for Jury. Where different minds may reasonably draw diverse inferences from the same state of facts as to whether they do or do not establish negligence or contributory negligence, those questions, if material, should be submitted to the jury.</p> <p>i. Appeal: Verdict: Conflicting Evidence. And when the jury, upon conflicting evidence and instructions not excepted to by the losing party, has found that the defendant was not guilty of negligence, this court will not ordinarily reverse that finding.</p> <p>5. -: Joint Assignment of Errors. Where the refusal to give several instructions is made the subject of a joint assignment in the motion for a new trial, those instructions will be examined only so far as may be necessary to determine whether one of them was properly refused.</p>

<p>1. Principal and Agent: Revocation or Authority. If a principal who has given an agent authority to sell the former’s land himself sells and disposes of that real estate before the agent procures a purchaser therefor, the agent’s power to sell is revoked by operation of law.</p> <p>2.-; -: Power Coupled with Interest. Where an agent is vested with a mere naked authority not coupled with an interest, his principal may revoke that authority before performance; but if the agent has rendered services and incurred expense in the course of his employment before his authority was canceled, the principal will be liable therefor, unless it is otherwise provided by the terms of their agreement.</p> <p>:>. A general demurrer to a petition admits the truth of all allegations well pleaded therein.</p> <p>4. Pleading: Sufficiency. Where a petition discloses that the defendant has invaded the plaintiff’s legal rights under circumstances making the former liable for nominal damages, a general demurrer to the petition should be overruled.</p> <p>5. -: -. And if the pleader further alleges in the petition the existence of facts justifying a judgment for compensatory damages, a judgment sustaining a general demurrer' and dismissing the action should be reversed, although those allegations are indefinite and subject to a motion to make more certain.</p>

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

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

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

<p>Opinion on motion for rehearing of case reported in S!> Neb. 497.</p>

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

<p>1. Sales: Counterclaims. The first and second counterclaims filed by defendants and set out in the opinion examined, and held that the general demurrers thereto were properly overruled.</p> <p>2. Instructions, referred to in the opinion, examined, and held properly given.</p> <p>3. Evidence examined, and held to so clearly sustain the verdict of the jury as to render a discussion thereof unnecessary.</p> <p>4. Courts: Former Decisions. Where the questions of law involved in a case appealed to this court have been definitely settled by our former adjudications, further review of such authorities is not required.</p>

<p>Marriage: Validity. A marriage which is prohibited by statute because contrary to the policy of our laws is yet valid if celebrated elsewhere according to the laws of the place where celebrated, even if the parties are citizens and residents of this state, and have gone abroad for the purpose of evading our laws, there being no legislative enactment that such a marriage out of .the state shall have no validity here.</p>

<p>1. Carriers: Passenger Elevators: Liability. One who installs passenger elevators in his building for the use of his tenants and the public generally is subject to the same degree of care in transporting and protecting his passengers as is imposed upon-common carriers.</p> <p>2.-: Liability. Common carriers of passengers should be held to the strictest accountability and be required to exercise the highest degree of care and forethought of which the human mind is capable. This rule is founded on principles of public policy and enforced by the courts for the protection of the public.</p> <p>3. Instructions given by the trial court and set out in the opinion sustained.</p> <p>4. Instructions requested by the defendant and refused by the court and set out in the opinion held properly refused.</p> <p>5. Evidence examined and set out in the opinion held sufficient to sustain the verdict of the jury.</p>

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

<p>Bill of Exceptions: Submission. A proposed bill of exceptions is not submitted to the adverse -party or his attorney of record, within the meaning of the statute,, by leaving it at the residence of the attorney in his absence.</p>

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

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

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

<p>Municipal Corporations: Defective Streets: Notice. Section 207 of the act governing cities of the metropolitan class (Comp. St. 1907, ch. 12a), requiring written notice of defective public ways or sidewalks thereof to be filed with the clerk five days before the occurrence of the injury complained of, has no application to defects caused by the city itself in negligently constructing a sewer in one of the streets of the city.</p>

<p>1. Executors and Administrators: Appointment: Notice. When the probate court orders service of notice of application for appointment of an administrator for an intestate estate by publication, the order being somewhat ambiguous in its language, and after-wards a publication is made such as the court might have ordered under the provisions of the statute and such as the order of the court might be reasonably construed to authorize, and the court approves and acts upon such service and appoints an administrator, the refusal of the court to set aside such appointment for want of legal notice thereof will be sustained.</p> <p>2. -: Claims: Allowance: Limitations. It is erroneous for the probate court to allow against the estate of a deceased person a claim that is on its face barred by the statute of limitations.</p> <p>3.-: -: Setting Aside Allowance. When the probate court allows a claim against a decedent’s estate,. with the consent of the administrator, and at the same term a party interested as heir of the estate, who has not consented to such allowance, shows to the court by petition that a substantial part of the claim so allowed appears upon the face of the claim to be barred by the statute of limitations and asks that the allowance be set aside, such petition should be granted.</p>

<p>Specific Performance: Agreement to Execute Lease. When an agreement to sell and convey land includes also an agreement on the part of the purchaser to lease to the vendor certain buildings and improvements situated on said land, and by accident and over- • sight of the parties the lease-is not executed at the time of the execution and delivery of the deed, and tRe vendor of the land retains and uses the said buildings and improvements for a part of the agreed term of lease, an action in equity may be maintained to enforce the execution of such lease and to restrain the purchaser of the land from interfering with the possession and use of said buildings and improvements during the agreed term of the lease.</p>

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

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

<p>1. Pleading: Demurrer. The merits of a general demurrer to a petition must be determined from the allegations of the petition alone.</p> <p>2. New Trial: Petition in Equity: Demurrer: Presumption. Upon a general demurrer to a petition in an action in equity for a new trial of a civil action at law on the ground of newly discovered evidence it will be presumed that the facts found upon the former trial will be found the same upon the new trial, unless the petition for new trial shows that additional evidence can be produced as to such facts.</p> <p>8.-: Newly Discovered Evidence. The courts will not grant a new trial on the ground of newly discovered evidence unless it appears probable that a different result may be reached.</p> <p>4.-: False Testimony. Evidence tending to show that the prevailing party upon the former trial testified falsely upon a vital issue in the case, which false testimony if believed might have controlled the decision, is material; and if it appears that the defeated party was without fault or negligence in not producing such evidence, and that the same can be produced on another trial, and might probably change the result, a new trial should be granted.</p> <p>5.-: Diligence. The allegation of the petition examined, and held to he sufficient to show due diligence to procure for the former trial the evidence which it is alleged has been discovered since that trial.'</p> <p>6. Receivers: Liability oe. Parties eor Acts oe Rfajeiyer. A receiver appointed by the court in the progress of litigation acts as receiver for all of the parties interested; but he is not the agent for the parties in the sense that each of the parties interested in the litigation is personally severally responsible for his wrongful or negligent acts.</p>

<p>Habeas Corpus: Return: Remand: Recognizance. Where, upon the - return of the respondent to an order in habeas corpus, it appears without question that the petitioner stands charged in a court of competent jurisdiction with the commission of a bailable offense against the laws of this state, and the sureties on his recognizance fixed by the examining magistrate are for any cause released from liability, this court will not discharge the petitioner, but will remand him to the district court where such charge is pending, and require him to enter into a proper recognizance in such amount as this court shall deem reasonable for his appearance to answer to the charge there lodged against him.</p>

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

<p>1. Marriage: Civil Contbact: Rules Applicable. The contract of marriage being a civil contract, the rules to be applied thereto must be, to a great extent, the same as are applied to other contracts.</p> <p>2. -: Estoppel. If one party to such relation induces the other to believe, in good faith, that the contract is made and is binding, the law will hold the party taking such advantage to the full terms of the agreement as in other cases.</p> <p>3. -: -. Subject to the terms of the contract, the acts and conduct of the parties, if one party to the agreement is known by the other to rely, in good faith, upon the validity and binding force of such contract of marriage, the other party will be bound by it.</p> <p>4. -: Common Law Mabkiage. Proof of a common law marriage, if sufficient to establish the relation, will sustain an action for divorce and alimony to the same extent as though the marriage were solemnized in strict accordance with law and usage.</p> <p>5. -: Evidence. While the mere fact of the repeated indulgence in sexual intercourse is not of itself conclusive proof of the marriage relation, yet such fact is always a proper subject for consideration in connection with and after evidence of the agreement to enter, in prmsenti, into the matrimonial state.</p> <p>6. -: Presumption. When there is evidence of an agreement of marriage, valid at common law, and the proof of continued sexual intercourse is unquestioned, the law will presume the acts of the parties to have been lawful and in accordance with the well-recognized rules of good morals and social duty, rather than that they were criminal and in violation of good morals and social obligations, as the law does not presume that people intentionally do wrong.</p> <p>7. -: Evidence. Where the evidence as to the fact of the entry into the relation of husband and wife by present agreement is conflicting, the subsequent conduct and actions of the party sought to be charged may be considered as circumstances tending to throw light upon the question of the truth of the allegation that such contract was made.</p> <p>8. -. The evidence, referred to at some length in the opinion, is examined, and it is held that the actions and conduct of defendant in connection with his letters, written to plaintiff, tend more strongly to establish the status of husband and wife than that of the criminal relation of libertine and mistress.</p> <p>9. -: -. The letters and correspondence between the parties subsequent to the alleged entry into the marriage relation „o not contain, in direct terms, any reference to the contract or relation, nor did either party, in terms, hold out or represent to the community at large that such relation existed. It was testified to by plaintiff, and denied by defendant, that their conduct in that behalf was by mutual agreement and at the request of defendant, based upon reasons which were satisfactory to plaintiff and to which she assented. This, if true, would sufficiently explain the conduct of the parties in that respect. The conduct of the parties tended strongly to support the contention of plaintiff.</p> <p>10.-: -. Under all the evidence it is held that the marriage relation exists between the parties, and that plaintiff is entitled to a divorce and reasonable alimony.</p>

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

<p>1. Quieting Title: Rival Homestead Claimants. In an action by one of two rival homestead claimants to a tract of public land to quiet his title and enjoin the other claimant from interfering with his possession thereof, it is proper for the state courts to decline to pass upon the question of ownership until after the government has parted with its title by duly issuing a patent therefor to one of such claimants.</p> <p>2.-: -: Injunction. In a proper case the district court may grant a restraining order to the one who holds the receiver’s final receipt for the land in question in so far as it may be necessary to protect his homestead rights.</p>

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

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

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

<p>1. Easements: Obstructing Right oe Way: Injunction. An action will lie at the suit of the owner of a right of way over the defendant’s land to enjoin the latter from permanently obstructing such way.</p> <p>2. -: Appurtenant and In Gross: Presumption. It will not be presumed that the grant of an easement is in gross when the right can fairly be construed as appurtenant to some other estate.</p> <p>3. -: Right oe Way: Passes by Deed. Title to a right of way appurtenant to a tract of land will pass as an incident to a deed for the dominant estate containing no reference to appurtenances.</p> <p>4. -: -: Obstructions: Extinguishment oe Right. Where an easement is created by an unambiguous written instrument, the estate conveyed thereby will not be cut down by the failure for six years of the owner thereof to compel the proprietor of the servient estate to remove permanent obstructions maintained by him upon the way in violation of the rights of the owner of the dominant estate.</p>

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

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

<p>1. Schools: Board of Education: Adoption of Rules. A rule adopted by the board of education of the city of South Omaha, providing that its committee on teachers and janitors shall annually, after the organization of the board in May, report the names of teachers and janitors to be selected by the board and the salaries to be paid such employees, and also recommend three competent persons to inquire into the qualifications of applicants desiring to teach in the public schools in said city, is a reasonable exercise of the power delegated to said board by the legislature to enact rules and regulations, is binding upon the board, and contemplates that, except in emergencies, the incoming members shall have the right to participate in employing teachers and janitors for the year next succeeding the new members’ election.</p> <p>2. -: -: Employment oe Special Counsel. Section 8430, Ann. St. 1909, does not disable the board of education of the city of South Omaha from employing counsel at the expense of the district in addition to its regular attorney to represent it in litigation.</p> <p>3. Mandamus: Payment oe School Wabrant. But if the treasurer of the district refuses to pay a warrant drawn in payment for legal services rendered the board and a fraction of its members in opposing a suit prosecuted to restrain them from acting in violation of the rules of the board, the writ should not issue unless it clearly appears that the members of the board were acting in good faith with respect to the matters referred to in the injunction suit and according to their rules and the law.</p> <p>4. Appeal: Errors Not Argued in Bribes. Ordinarily an error occurring in the district court will not be noticed on appeal unless the appellant specifically assigns and argues that error in his brief; but where the effect of affirming a judgment may be to improperly dispose of school funds, and error prejudicial to the district appearing in the record is referred to but not specifically assigned in the brief, it will be noticed, although not argued at length.</p>

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

<p>Appeal from the district court for Dodge county: (ÍEORGE H. THOMAS, JUDGE.</p>

<p>1. Constitutional Law: Ex Post Facto Laws. Bsc post faoto laws include enactments which alter the situation of accused to his disadvantage.</p> <p>2. -: -: Penal Bond. An amendatory act increasing the penalty of a bond essential to the suspension of sentence in a prosecution against a husband for abandonment is ex post facto as to prior offenses.</p>

<p>1. Homicide: Appeal: Prejudicial Error. In a prosecution for murder, a conviction should be reversed for the erroneous admission of irrelevant evidence which is prejudicial to defendant.</p> <p>2. Criminal Law: Instructions: Comment op Court. In charging the jury in a criminal prosecution, it may be error for the trial court by oral comment or other means to unduly emphasize the fact that part of the instructions are given at the request of defendant, and that the others are given by the court on its own motion.</p>

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

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

<p>1. Wills: Election. No general rule can be formulated defining what acts of acceptance or acquiescence shall be sufficient to constitute an election between a devise in a will and a right inconsistent with the will. There must be an intention to make an election or some decisive act that will prevent restoring the parties affected to the same situation as if such act had not been performed.</p> <p>2. -: -. An attempt to take both the property given by the will and the right inconsistent with the will does not constitute an election; when one is taken and the other rejected there is an election; if one is taken, and the situation of the parties affected is so changed with reference to the property or rights involved that they cannot be restored to their former situation, the election is complete.</p> <p>3. -: Payment of Mortgage: Prior Conveyance. The provision in a will that the mortgage upon a certain tract of land shall be paid out of the estate is not inconsistent with a former contract by the testator to convey the land to another.</p> <p>4. Statute of Frauds: Sale of Land: Parol Contract: Part Performance. The effect of section 6 of the statute' of frauds (Comp. St. 1909, ch. 32) is to continue the practice by which at the time of enacting the statute courts of equity compelled the specific performance of parol contract to convey real estate for the purpose of preventing fraud and injustice when there has been a part performance.</p> <p>5. Evidence: Statements of Decedents. Testimony as to statements made by a deceased person many years before the testimony is given must be scrutinized closely; but when it appears that the circumstances were such that the parties testifying must have given close attention to the statements when made, and to the exact meaning of the party who made them, and strongly indicate the reasonableness and probability of the statements, and the statements are against the apparent interest of the party making them, such evidence may be sufficient to establish the fact stated.</p> <p>6. Statute of Frauds: Sale of Land: Parol Contract: Part Performance. Payment of the consideration for the conveyance of real estate, the purchaser being in possession at the time of such, payment and continuing in possession and making valuable, permanent improvements on the land without any agreement as to the terms of such possession, will be such part performance as to take the contract to convey out of the statute of frauds.</p>

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

<p>Brokers: Commission. One who makes a contract with a real estate broker or agent, which complies with the statute in its form and contents, and in which he represents himself as owner of the land described, cannot avoid payment of the agreed commission on the ground that he is not the owner of the land.</p>

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

<p>Appeal: Affirmance. Where, on an investigation of a question of fact in a suit in equity brought to this court on appeal, our finding accords with the judgment of the district court, that judgment will be affirmed, without discussing or quoting the evidence.</p>

<p>1. County Courts: Jurisdiction. An ex parte order confirming in a widow a title in fee simple to a homestead under the Balter decedent act (laws 1889, ch. 57) is one which the county court has no jurisdiction to make.</p> <p>2. Constitutional Law: “Curative Acts”: Vested Rights. An act of the legislature, of the class known as “curative acts,” which attempts to take away property rights already vested violates the constitution and is void. Draper v. Clayton, p. 443, post.</p> <p>3. Remainders: Limitation of Actions. The right to bring an action for the possession of real property in the possession' of a life tenant does not accrue to a remainderman until the termination of the life estate.</p>

<p>1. County Courts: Jurisdiction. “A decree of the county court assuming to vest in a widow the absolute title to a homestead selected from the lands of her deceased husband is void as an exertion of power not granted by the constitution or laws of the state.” Finders v. Bodle, 58 Neb. 57.</p> <p>2. Homestead, Setting Off: Estoppel. An ex parte order made upon a widow’s application setting apart to her a homestead interest in the lands of her deceased husband will not estop his children residing at that time in the county where the homestead is situated, and who have not si bsequently ratified the order or otherwise waived their right to object thereto. Reese, C. J., and Sedgwick, J., dissent.</p> <p>3. Constitutional Law: Vested Rights. Chapter 32, laws 1895 (Comp. St. 1909, ch. 23, sec. 29a), contravenes section 3, art, I of the constitution of the state of Nebraska, and is null and void.</p> <p>4. Guardian and Ward: Acts oe Guardian: Estoppel. An infant’s guardian by giviDg a receipt for money not received by her, but purporting to have been received in satisfaction of the ward’s share of a surplus over and above the appraised value of the infant’s ancestor’s homestead, in proceedings prosecuted under the “Baker act” (laws 1889, ch. 57), will not estop the ward from asserting his estate in said homestead.</p> <p>5. Quieting Title: Homestead: Remainderman: Limitations. If a widow asserts, by virtue of a void order of the county court, a title in fee simple to a homestead selected from her late husband’s lands, an infant child of the decedent ordinarily may at any time within ten years after attaining his majority maintain ■an action under sections 57-59, ch. 73, Comp. St. 1909, for the' purpose of quieting his title in said land. *</p> <p>6. Life Estates: Incumbrances: Payment by Life Tenant. Where a life tenant of real estate pays off a past due incumbrance which is a lien upon the entire estate, he is entitled to contribution from the remainderman, and should recover from him the difference between the principal debt and the present value of an annuity equal to the annual interest charge running during the years which constitute the life tenant’s expectancy of life.</p>

<p>1. Homestead: Descent. Upon the death of the owner of the fee in a homestead estate the same descends to the surviving spouse for life, and the remainder to the children of the owner of the fee title.</p> <p>2. County Courts: Jtjbisdiction. The county court is without jurisdiction to assign a fee title in a homestead to the surviving spouse of the owner of the fee title, and chapter 32, laws 1895, is inoperative to validate such decrees.</p> <p>3. Remainders: Limitation of Actions.- The statute of limitations of an action by a remainderman to recover possession of the estate does not begin to run until the death of the owner of the life estate. The possession of the owner of the life estate is not adverse to the rights of the remainderman.</p>

<p>1. Appeal: Remand: Law oe Case. “The language used in the former opinions of this court, commenting upon the evidence of the various witnesses, was used with reference to the questions presented in this court only, and was not a discussion of the weight that should be given to this evidence upon a new trial of this case. The court will apply the law of the case so far as it has been determined by this court, but the discussion of the evidence here will not restrict the trial court in its examination and submission of the questions of fact.” Williams v. Miles, 73 Neb. 205.</p> <p>2. Wills: Revocation: Subsequent Will: Evidence. The fact, if established by competent proof, that a subsequent will was made is not sufficient of itself, and without some proof of its actual contents, to show the revocation of a former will {Williams v. Miles, 68 Neb. 463), nor would the proof of such fact alone be sufficient to justify the setting aside of the due probate of a former will, the alleged subsequent will not being found or produced, nor a verified copy thereof presented.</p> <p>3.-: Execution: Evidence. An attorney testified that he prepared a will consisting of two sheets and four pages to be executed by the proposed testator; that the instrument was signed by the testator and witnessed in his presence. In his testimony he detailed the facts and circumstances attending its execution, including remarks made by himself, the testator and the witnesses, but did not know the witnesses and failed to remember their names. Two witnesses testified that they witnessed the signature of an alleged will of the same person at the place and about the time stated by the attorney; that the person signing as testator said it was his will, but they were not informed of its contents, did not read any part of it, and did not know what the paper contained; that it consisted of many sheets forming a body of paper near half an inch in thickness; that there was but one other person, aside from the alleged testator and the witnesses, in the room, and that person was wholly unknown to one of the witnesses, the other witness testifying to a total want of recollection as to who the other person was, or whether he knew him, neither one being introduced to him, and both agreeing that he did not utter a word at or before the signing or while they were in the room. Held, That these facts failed to show that the paper there signed, if so signed, was the one said to have been written by the attorney, and that there was insufficient proof of the contents of the alleged will, or that the paper witnessed by the two persons signing as witnesses was the instrument claimed to have been prepared by the attorney, or was a will.</p> <p>4.-: Revocation: Subsequent Will: Evidence. The proof.of the execution and contents of a lost will should be clear and convincing, and the declaration of the testator alone that an instrument he is signing is his will, but without any evidence as to its contents, will not be held sufficient to revoke a former will proved to have been made and duly admitted to probate, there being no proof that the alleged lost will was ever seen after its supposed execution.</p> <p>5.-: Execution: Evidence. The evidence as to the execution of any will by the deceased, at the place and on the date named, is examined and set out in the opinion, and the same is held insufficient to establish the fact.</p>

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

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

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

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

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

<p>1. Pleading: Motion to Make Definite: Review. The plaintiff by her petition sought to recover for services rendered the defendants in making or compounding 6,000 bottles of a certain medicine, called “Co-lon-co,” for which they furnished the materials, except the ingredients of a so-called secret formula. -The defer danta moved the trial court to require the plaintiff to make her petitfSnmore definite and, por.tn-jp by setting- forth the ingredients of her formula^ The motion was overruled. Held, That the disclosure thus sought to be obtained was immaterial, and therefore it was not error to overrule the motion.,</p> <p>2. Witnesses: Cross-Examination. The, plaintiff, on cross-examination, should — not, be required to make proof of, or give evidence tending to establish, matters not alleged in his petition or put in issue by the pleadings. »</p> <p>3. Trial: Instructions. It is the duty of the court to refuse to instruct the jury on matters not in issue and upon which he has refused to receive evidence.</p> <p>4.-: -. Where the court has, on his own motion, fairly submitted to the jury all of the questions in issue, it is not error for him to refuse to give further or additional instructions tendered by the parties.</p> <p>5. Appeal: Verdict: Conflicting Evidence. A verdict of a jury rendered upon conflicting evidence will not be set aside by a reviewing court unless it appears that upon some material matter there is not sufficient competent evidence by which it can be sustained.</p>

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

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

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

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

<p>Error to the district court for Cedar county: Cuy T. Craves, Judge.</p>

<p>1. Sales: Waiver. If á vendor after selling a quantity of corn so as to pass title thereto without actual delivery resells it to another person and executes to each vendee a bill of sale for one-half of the grain, the first vendee by accepting the bill of sale and waiving his right to one-half of the grain first sold to him does not renounce his title to the other half thereof.</p> <p>2. -: Passing Title: Grain in Mass. Where a specified quantity of grain identical in kind and uniform in value is sold from a mass, a separation is not necessary to vest title where the intention of the parties that title shall pass is clearly manifested.</p> <p>S.-: -: Review. Whether title to personal property sold, but not actually delivered, passes to the vendee, depends upon the intent of the parties to the transaction, and the question of intent is rather one of fact than of law, so that the finding of the trial court upon that issue in an action at law will not be set aside by this court unless against the clear weight of the evidence.</p> <p>4.-: Rescission. An order given by a vendee to his banker not to pay a check, drawn and delivered by the former in payment for chattels sold to him, will not in itself work a rescission of the contract of sale.</p>

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

<p>1. Intoxicating Liquors: Action eor Injuries: Evidence. 'In an action against a saloon-keeper to recover damages for personal injuries resulting from the defendant’s traffic in intoxicating liquors, the plaintiff is not required to prove that intoxicating liquors sold by the defendant were the sole or even the principal cause of the former’s injury, but only that intoxication caused by such traffic contributed thereto.</p> <p>2. Instructions should be construed together, and if, taken as a whole, they do not prejudice the appellant will be held sufficient.</p> <p>3. Appeal: Harmless Errors. This court will disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the’appellant.</p>

<p>1. Bigamy: Proof of Prior Marriage. When the state in a prosecution for bigamy proves that the defendant, prior to his alleged bigamous marriage, married a woman in the state of Iowa, and upon her cross-examination it appears that she and the defendant are first cousins, but no evidence is ottered to prove that they are cousins of the whole blood, it devolves upon the state to prove either that said cousins are of the half blood, or that for other reasons the Iowa marriage is lawful.</p> <p>2.-: Instructions: Prior Marriage: Presumptions. In such a ease it is error to instruct the jury that there is a presumption that the Iowa marriage is lawful.</p>

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

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

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

<p>1. Names: 'Idem Sonans. “Adolph” and “Adolf” are idem sonans, when used in both forms as the Christian name of the complaining witness in an information for robbery and in the transcript of the proceedings of the examining magistrate.</p> <p>2. Bobbery: Transcript: Correction op Name. In a trial for robbery, an order permitting the examining magistrate to correct the transcript of his proceedings by changing the spelling of the name of the, complaining witness from “Adolph Hennig” to “Adolf Hennig” is not prejudicial to a defendant who has been familiar with the complainant’s identity from the beginning of the prosecution.</p> <p>3. -: Larceny prom the Person. Under an information charging robbery, accused may be convicted of larceny from the person.</p> <p>4.-: -: Instructions. Where the trial court permits the jury to find defendant guilty of larceny from the person after instructing them that the charge of robbery is not sustained by the evidence, instructions on the law of robbery should not be given.</p> <p>5.--: Instructions. Under a charge of robbery, there is no error in the trial court’s failure to submit to the jury issues as to simple assault and petit larceny, where the evidence fails to show that either of those offenses was committed.</p> <p>6. Larceny from the Person: Witnesses: Credibility: Weight op Evidence. Where the proofs on behalf of the state are sufficient to support a verdict finding defendant guilty of larceny from the person, the credibility of the witnesses and the weight of their evidence are questions for the jury.</p>

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

<p>1. Venue: Action to Recover Monet. In an action for the recovery of money, when the defendant is a non-resident of the state, where it does not appear that there is property of, or debts owing to, the defendant in the county where such action is brought, such action cannot be instituted before the defendant enters the county.</p> <p>2. -: -. In such a case the rule as to residents and nonresidents is the same.</p>

<p>1. Wills: Construction. If husband and wife join in an instrument in form of a joint, will, which disposes only of property of which the husband is the sole owner, it will be sustained as the will of the husband.</p> <p>2.-: -: Devise of Homestead: Presumptions. If from the language used by the testator it is doubtful whether he intended to devise his real estate in fee simple to his wife or only a life estate therein, the fact that the real estate is their homestead and the law would give her a life estate therein, and that the will contains no other provision changing the statutory disposition of his property, should be considered in determining the true meaning of the will in that respect. In such case the presumption that the testator knew the statutory provision and intended to change or modify the disposition which the law would make will be indulged to aid in determining the intention of the testator.</p>

<p>Homestead: Assignment to 'Widow: Value and Extent. In assigning a homestead to the widow of an intestate, where the estate owes no debts, the válue of their homestead as owned and occupied by them at the time of the death of the husband should be adopted in fixing the extent thereof; and its enhanced value created by the industry and economy of the applicant should not be considered.</p>

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

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

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

<p>Burglary: Evidence: Admissions. If, in a prosecution in the district court of boys under the age of 18 years for the crime of burglary, it appears without dispute that they entered a plea of guilty during their preliminary hearing upon the advice of an officer, who had them in charge, that it would be to their advantage to do so, it is prejudicial error to receive in evidence, over the defendants’ objections, proof of the contents of the complaint filed in the lower court and of their plea thereto.</p>

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

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

<p>1. Gaining: Recovery oe. Wager: Demand. “Money wagered on the result of a horse race may be recovered from the stakeholder by the party depositing the same, if, before the stake is paid over to the winner, a demand has been made upon the stakeholder for its return.” Beaver v. Bennett, 29 Neb. 812.</p> <p>2. Appeal: Harmless Error. On appeal, an error or defect in the pleadings or proceedings, when not prejudicial to appellant, is not a ground of reversal. Code, sec. 145.</p>

<p>1. Witnesses: Competency. In applying the statutory rule that no person having a direct legal interest in- the result of any civil action, when the adverse party is the representative of a deceased person, shall he permitted to testify to any transaction between the deceased person and the witness, the real nature of the transaction should be considered.</p> <p>2.--: -. Exceptions to the statutory rule that “every human being of sufficient capacity to understand the obligation of an oath is a competent witness in all cases” (code, sec. 328) should not be extended by construction beyond the import of the terms used by the legislature.</p> <p>3. -: -. Where a partnership composed of two members buys a school-land contract with firm money for the benefit of the firm and takes' the assignment in the name of one of the partners for convenience in transacting partnership business, the purchase is not a transaction between the partners, but between the firm and the holder of the school-land contract; and the death of the partner in whose name the assignment is taken will not prevent the surviving partner from testifying to the real nature of the transaction in a suit by decedent’s devisee to recover the land from one claiming title through the partnership, within the meaning of section 329 of the code, which declares:</p> <p>“No person having a direct legal interest in the result of any civil action or proceeding, when the adverse party is the representative of a deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness.”</p>

<p>Municipal Corporations: Cities of Second Class: Election of Councilmen at Large. Under article I, cR. 14, Comp. St. 1909, the electors of a city of the second class Raving a population of more tRan 1,000 and less tRan 5,000 Rave no autRority to elect councilmen at large, and tRe canvassing board should not be required by mandamus to canvass the returns of an election to fill such offices.</p>

<p>1. Intoxicating1 Liquors: Issuance oe Licenses. A license to sell intoxicating liquors is in the nature of a personal trust, and the applicant for such license must be a person competent, willing and intending himself to carry out such trust.</p> <p>2.-: -. And where the evidence fairly shows that the one in whose name an application for such a license is made is not the real party in interest, but that such license is being sought for the purpose of enabling another to do business thereunder, it is the duty of the licensing board to refuse to issue such license.</p> <p>3.-: -. Evidence examined and set out in the opinion helé amply sufficient to show that the applicant in this case is not the real party in interest.</p>

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

<p>Parties. When the determination of a controversy cannot be had without the presence of new parties to the suit, the code directs the court to order them to be brought in. Code, sec. 46.</p>

<p>Appeal from thé district court for Sheridan county: William IT. Westover, Judííe.</p>

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

<p>1. Appeal: Action at Law: Trial to Court: Review. Where, in an action at law, the cause is submitted -to the trial court upon conflicting evidence, and there is sufficient to sustain the finding of tlie court bearing the cause, this court will not reverse the judgment, even if there was sufficient evidence to have sustained a finding in favor of the.' opposite party.</p> <p>2. -: Conjxictins Evidence. In such case, "this court will not weigh conflicting evidence.” Fischer v. Kram, 63 Neb. 241.</p>

<p>1. Criminal Law: Indorsement of Witnesses on Information. The names of witnesses upon which the state relies to prove the charge against one accused of crime should be indorsed upon the information at as early a day as practicable after the discovery of such witnesses, and in all cases before the cause is called for trial, and reasonable time after such indorsement should be allowed to enable the defendant to prepare for trial.</p> <p>2.-: Jurors: Disqualification. A juror in a criminal prosecution, where the defendant is accused of murder in the first degree, disclosing on his voir dire examination that he has an opinion as to the guilt or innocence of the party charged, and being shown that such opinion is formed, in part, upon his actual knowledge of many of the facts to be proved on the trial, his personal inspection of the place where the tragedy occurred soon after the commission of the alleged offense, his visit to the home of the deceased the evening of and after the alleged killing, nis" personal acquaintance with the deceased, his lodging during the night of the tragedy at the same hotel where the accused boarded, his knowledge of the arrest of the accused the next morning and hearing remarks by the people present that they thought the accused was guilty, should render him incompetent to sit as a juror in the trial of the case.</p> <p>3.-: -: Examination. It is the policy of the law that a person charged with a capital offense, and placed upon trial therefor, should have ample opportunity, in the examination of jurors as to their qualifications to act as such upon the trial, to ascertain the facts as to their competency, and his right in that behalf should not be unreasonably abridged or denied.</p> <p>4. -: Evidence. In a prosecution of a defendant charged with murder in the first degree, it is error to allow proof by the state, in making its case in .chief, that the accused had committed the crime of desertion from the United States army a short time previous to the alleged homicide.</p> <p>5.-: Trial: Misconduct of Prosecutor. The evidence showed that the accused was a married man; that his family resided in the state of South Dakota; that after coming to this state he had agreed to marry another woman with whom he was on intimate terms, the woman with whom the agreement was made being sworn as a witness to prove the fact of the premise, but the marriage relation had not been entered into. The prosecution caused and procured the wife of the accused to come from South Dakota, take her place within the bar during the trial, and procured a witness to designate and point her out to the jury. Held, improper practice.</p> <p>6.--: Witnesses: Examination by the Court. While it is the right of a trial judge in the exercise of a sound discretion, and in case of urgent necessity, to interrogate witnesses on the trial of a criminal case, or even the accused himself when upon the witness stand, when essential to the administration of justice, yet the practice of so doing should be discouraged, and, in some instances, condemned. Should this discretion be abused, or prejudice to the accused be apparent, a new trial should be granted.</p> <p>7. Constitutional Law: Trial by Jury: Duty of Courts. The constitution and laws guarantee to every person a fair and impartial trial by an impartial jury. The obligation to protect these constitutional rights devolves upon the courts, and no court, when called upon to act, can shirk or evade the responsibility cast upon it by law.</p> <p>8. Criminal Law: Trial: Misconduct of Prosecutor. In the argument of a cause to the trial jury in a case where the accused was on trial charged with murder in the first degree, an attorney for the prosecution said to the jury: “If this jury find the defendant guilty and do not bring in a verdict recommending the death penalty, no member of this jury need come to me and apologize, or to apologize to any member of the audience.” This is held to be such a gross violation of the rules of argument as to require the strongest censure; and no condemnation of the language by the trial court can effectually obliterate the injury and prejudice which might result to the accused.</p>

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

<p>1. Appeal: Variance: Review. A judgment will not be reversed for a variance between plaintiff’s allegations and bis proof, unless it is clearly shown to be material and that tbe defendant bas been misled thereby to bis prejudice in making bis defense.</p> <p>2. -: -: -. Unless the matter of variance has, in some suitable manner, been brought to tbe attention of tbe trial court, a court of review may decline to consider it.</p> <p>3. Railroads: Damage by Ftiíic: Burden oe Prooe. In an action for damages clearly shown to have been ^caused by tbe escape of fire from a railroad engine, tbe burden is upon the company to show that tbe engine was properly constructed, equipped, and operated.</p> <p>4. Trial: Failure oe Plaintete to Testify: Instructions. Where tbe plaintiff, by tbe evidence of competent and disinterested witnesses, fully establishes his cause of action and tbe amount of bis recovery, be may decline to testify in his own behalf, and his omission, while upon the witness stand, to state the amount of his damages does not require the court in his instructions to comment unfavorably upon that fact.</p>

<p>Municipal Corporations: Public Improvements: Liability. L., a city of the first class, entered into a valid contract for the construction of a sidewalk, the cost thereof to he paid by a special assessment to be levied on the lots abutting the improvement; the sidewalk was constructed according to the contract, and the city levied a special assessment upon the abutting lots to pay for the same; thereafter the city failed and neglected to collect the assessment, and entered into an agreement with the owner of the lots by which it attempted to release them from the lien of the special assessment and caused the same to be canceled and discharged of record. Held, That such conduct on the part of the city rendered it liable in an action to recover the contract price of the improvement.</p>

<p>Appeal from the district court for Franklin county: Harry 8. Fungan, Judge.</p>

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

<p>1. Pleading: STirarronsNCY. A statement in an answer that the defendant is not indebted to the plaintiff is not a denial of any fact upon which the right to recover depends, and raises no issue.</p> <p>J. -: Construction. Where an objection that a petition does not state a cause' of action is not interposed until after the commencement of the trial of a case, the pleading will be liberally construed, and, if possible, sustained.</p> <p>3. Witnesses: Reference to Memorandum. If, at the time a statement is made, a witness makes a memorandum thereof and knows and testifies that the memorandum is correct, he may produce the memorandum and testify therefrom, although he admits that he has no independent recollection of such facts.</p>

<p>1. Counties: Building Contract: Liability on Bond. A board ot supervisors in contracting for tbe construction of a courthouse may lawfully require the contractor to pay for the material used in the erection of said building, and a bond executed to secure the faithful performance of that contract inures to the benefit of a materialman.</p> <p>2. -: -: -. In such a case the materialman will not be prejudiced by the failure of the supervisors to require the contractor to produce receipts signed by the materialmen and laborers before paying the contractor for constructing the building.</p> <p>3.-: Contractor’s Bond: Approval. If the bondsman in his answer admits the execution and delivery of the bond, the materialman need not prove that the board of supervisors formally approved it.</p> <p>4. Appeal: Estoppel. While it is the duty of the clerk of the district court iu entering a judgment against two persons, one of whom is the principal debtor and the other a surety, to certify to those facts, yet if judgment is entered in strict conformity to a suggestion made to the court by the surety, it will not be heard to complain on appeal to this court concerning the form of the judgment.</p>

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

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

<p>1. Pleading: Stjeeiciency. In a petition, a general allegation of negligence is sufficient, if not assailed by motion.</p> <p>2. Appeal: Reversal: Retrial: Admissions at Former Trial. When a ease is retried in the district court after a general reversal on appeal, the trial court, in construing an admission made by plaintiff at the former trial, should consider the situation of the partiés at that time and the circumstances under which the admission was made.</p> <p>3. -: -: -. A plaintiff, by trying his case and recovering an erroneous judgment under, allegations which, when proved, afford him no remedy, is not precluded from relying on other allegations of the same petition after his judgment has been reversed on appeal and the cause remanded generally.</p> <p>4. Railroads: Killing Stock: Negligence: Question eor Juey. In a suit against a railway company to recover the value of a horse which, when running on the track ahead of a train, was struck and killed by the locomotive, whether the engineer by the exercise of ordinary care could have stopped the train in time to avoid the collision after he saw the horse and blew the whistle to frighten it is a question, for the jury, where there is competent proof to sustain a verdict in favor of plaintiff on that issue.</p>

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

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

<p>1. Courts: Appeal: Evidence. Where the evidence in the record is clearly sufficient to sustain the verdict of the jury, this court in considering an assignment that the evidence is insufficient to support the verdict is not required to set out any part of such evidence.</p> <p>2. -: -: Instructions. Where objections to instructions given by the trial court are clearly without merit, this court is not required to set out such instructions in its opinion.</p> <p>3. Review. Record examined, and held, without reversible error.</p>

<p>1. Vendor and Purchaser: Bona Fide Purchaser. A purchaser of real estate from one who has already sold and conveyed the same to another, whose deed is not recorded, cannot hold the land as an innocent purchaser unless he was at the time of his purchase without notice, actual or constructive, of the rights of the prior purchaser.</p> <p>2. -: -: Burden oe Proof. The burden of proof is upon the party who alleges that he purchased without notice.</p> <p>3. -: -: Evidence. The plaintiff purchased a lot in Omaha, and failed to record his deed, but took possession and caused the grade to be lowered by removing large quantities of soil therefrom at an expense of nearly $200. Afterwards the defendant purchased the lot at about one-half of its value from the same grantor, and caused his deed to be recorded. The defendant made no inquiry as to the rights of plaintiff. Held, That defendant is chargeable with constructive notice of plaintiffs rights in the lot, and is not an innocent purchaser without notice.</p>

<p>1. Contracts: Alterations : Materialty. A merely verbal change in a contract that does not vary its meaning in any essential particular, nor affect the liability of the party to be charged thereon, is an immaterial alteration.</p> <p>2. -: -: -. In a contract for the sale and delivery of grain, the promisee was named “Blenkiron Grain Co.;” the name of the corporation had recently been changed to “Blenkiron Bros., Inc.;” no other substantial change had been made in the corporation or its business, but by mistake the agent of the corporation had used an old blank in which the former name was printed. The promisee upon discovering the mistake corrected it by erasing “Grain Co.” and inserting “Bros., Inc.” Held, An immaterial alteration.</p>

<p>Criminal Law: New Trial. The district court has no jurisdiction to grant a new trial, in a criminal case, upon application by petition filed after the term of the trial.</p>

<p>Appeal: Law oe Case: Reversal. The law of the case as declared by this court must control in the subsequent trial in the lower court; and, if upon such trial the evidence shows without substantial conflict that the defendant is not liable under the law so declared, a verdict and judgment against the defendant will be reversed as contrary to the evidence.</p>

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

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

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

<p>1. Municipal Corporations: Issuance of Bonds: Suit to Enjoin: Pleading. A special • election was called in the city of P. The resolution of submission and notice of election recited that the election would be held “at the regular polling places in the city.” In an action to enjoin the sale of the bonds ordered at said election to be issued, one of the grounds for injunction was that the submission and notice were insufficient as not designating the polling places with sufficient certainty. It is held that, in the absence of an averment that there were no regular polling places in the city, or that the electors were in some way deprived of their opportunity to vote, the submission and notice must be held sufficient.</p> <p>2. -: -: Validity. By section 8994, Ann. St. 1909, any city of the class to which the defendant- city belongs is given the power to establish and maintain a system of electric lights and to levy a tax for the same, and by section 8995 it is provided that, if the levy of the tax would not raise the necessary amount to establish such electric light system, the bonds of the city may be issued, if so ordered by a vote of the people. The resolution of submission and notice provided for the issuance of bonds “for the purpose of raising a sum sufficient to purchase or install and establish an electric light system within said city.” Held, That under the statute the bonds voted at the election constituted a valid obligation against the city, the proposition not being dual, nor in the alternative, to the extent of rendering the bonds void,</p> <p>3.-: -: -. By section 8927, Ann. St. 1909, such city is authorized to purchase, erect, or construct a system of waterworks with necessary mains, etc., within the city, and to issue bonds “for the purchase, erection, or construction and maintenance of such water-works,!’ etc., when so directed by two-thirds of the legal voters of the city at an election held for that purpose. By the resolution of submission and the notice of election the question of issuing the bonds of the city “for the purpose of purchasing or erecting, constructing, locating and maintaining a system of water-works within said city” was submitted at a special election and received the requisite two-thirds majority of the vote cast. In a suit to enjoin the sale of the bonds on the ground that the submission and notice of election were void as submitting a dual and alternative question, it is held that the submission and notice were a sufficient compliance with the statute and that the bonds were valid.</p> <p>4. -: -: -. In cities of the class to which defendant belongs a submission of a proposition to issue bonds for the purpose of providing light and water for the use of such city and its inhabitants may be made by resolution duly passed and approved, as well as by ordinance.</p>

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

<p>1. Waters: Mutual Irrigation Company. An irrigation company or- • ganized under the laws of this state, which has no source of income, derives no revenue from the operation of Its ditch or canal, and conducts its business solely-for the purpose of irrigating the lands of its members and stockholders, is, de facto, a mutual irrigation company as defined by section 6845, Ann. St. 1909.</p> <p>2. -: -: By-Laws. Such a company may adopt by-laws regulating the use of the water it has appropriated, by its stockholders in turn, and require each of them to contribute his proportionate share to a maintenance fund to enable it to carry on the enterprise, and may make the payment of the same a condition of the right of the stockholder to receive water to irrigate his land; and, where such by-laws are agreed to and signed by all of the stockholders of the corporation, the courts will recognize and enforce the same as a valid contract binding alike upon all of them. Omaha Law Library Ass’n v. Oonnell, 55 Neb. 396.</p> <p>3. Mandamus: Irrigation; Use of Water. Where, in such case, a stockholder refuses to pay his share of the maintenance fund, he is not entitled to a writ of mandamus to compel the corporation to furnish him water for irrigation purposes.</p>

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

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

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

<p>1. Appeal: Instructions: Review. Error alleged in an instruction to the jury must be called to the attention of the trial court in the motion for a new trial before it will be considered by this court.</p> <p>2. -: Findings: Conflicting Evidence. A finding of fact made by a jury upon conflicting evidence will not be disturbed unless manifestly wrong.</p>

<p>Appeal: Affirmance. When a cause is tried to the court without the intervention of a jury, the judgment will not he reversed on the ground of the admission of immaterial or incompetent evidence, if sufficient material and competent evidence was introduced and admitted to sustain the finding of the court.</p>

<p>1. Indictment and Information: Motion to Quash: Waiver. Under the provisions of section 444 of the criminal code, defects which might have been attacked by a motion to quash, or a plea in abatement, are waived when a defendant pleads to the general issue; and this is true as well when he pleads voluntarily as when he stands mute and a plea of not guilty is entered for him by the court. Trimble v. State, 61 Neb. 604.</p> <p>2. Intoxicating Liquors: Unlawful Sale: Evidence. Proof that a defendant, who admits that he has no license to sell intoxicating liquors, was requested to procure liquor for another, received the money therefor, and shortly afterwards delivered the liquor to such person, is sufficient to make a prima facie case, and authorizes a conviction in the absence of any explanation or denial.</p>

Original application for a writ of mandamus to compel respondent to certify the name of relator ás a candidate for state senator.

<p>1. Electric Light Companies: Injury to Trees: Liability. In th< absence of a valid legislative act or municipal ordinance grant ing to public service corporations authority to trim shade trees growing in the streets of metropolitan cities without compensating the abutting owner for damages thereby inflicted, and enacted before the lot owner plants trees in that part of the street contiguous to his lot, an electric light company is liable to the owner for damages accruing to his lot by reason of such trimming.</p> <p>2. Limitation of Actions: Injury to Trees. In such a case, the statute of limitations does not commence to run in favor of the electric light company until it trims the trees.</p>

<p>1. Drains: Pleading. An allegation in a petition to county commissioners requesting them to locate and construct a public ditch according to the provisions of article X, eh. 89, Comp. St.'1909, that certain described tracts of land owned by the petitioners will be drained by the ditch, is a sufficient statement that the petitioners’ land will be benefited by the improvement.</p> <p>2. -: Bond: Validity. A bond conditioned as required by the statute, signed by two individuals, if approved and accepted by the commissioners, is not void because signed by the petitioners only.</p> <p>3. -: -: Approval: Presumptions. If the bond is filed in the office of the county clerk and the commissioners locate and construct the ditch, it will be presumed, 20 years thereafter, that the bond was approved, although no record was made of, and no witness testifies to, the precise fact.</p> <p>4. -: Findings of County Board: Sufficiency. A finding made by the county board after a personal inspection of the line of . the proposed improvement, and entered by the clerk on the journal of the board, that the ditch is necessary for the benefit of the traveling public, conducive to the good health of the vicinity, and the route prayed for is the most practicable route for the ditch, is a substantial compliance with the provisions of section 5, art. I, ch. 89, Comp. St. 1909.</p> <p>5. Estoppel: Drains: Location. Where the owner of real estate joins in a petition to the county commissioners to locate a public ditch upon his land, and subsequently, after the bond required by statute has been given and approved and findings have been made and entered on the record as the law requires before a public ditch is located, constructs the ditch under a contract with the commissioners and is paid therefor out of the proceeds of assessments levied upon his neighbors’ land, he is estopped to deny the authority of the commissioners to locate and construct the ditch because of irregularities in their proceedings.</p> <p>6. -: Pleading. If the facts constituting an estoppel are sufficiently pleaded by a defendant, he will be given the benefit of that defense, although the word estoppel does not appear in his pleading.</p> <p>7. Easements: Notice. “One who purchases land burdened with an open and visible easement is ordinarily charged with notice that he is purchasing a servient estate.” Arteriurn v. Beard, 86 Neb. 733.</p> <p>8. County Commissioners: “Ditch Fund,” Use of. Section 25, art. I, ch. 89, Comp. St. 1881 as amended in 1891, authorizes county commissioners in their discretion to use money in the ditch fund to pay for removing obstructions from and for repairing the public ditches located in their respective counties under the provisions of article I of said chapter.</p> <p>9. Equity: Multiplicity op Suits. “A court of equity, having obtained jurisdiction of a cause, will retain it for all purposes, and render suoh decree as will protect the rights of the parties before it, and thus avoid unnecessary litigation.” Buchanan v. Gh'iggs, 20 . Neb. 165.</p>

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

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

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

<p>1. Vendor and Purchaser: Unrecorded Deed: Bona Fide Purchaser. “A purchaser of real estate from one who has already sold and conveyed the same to another, whose deed is not recorded, cannot hold the land as an innocent purchaser unless he was at the time of his purchase without notice, actual or constructive, of the rights of the prior purchaser.” Dundee Realty Oo. v. Leavitt, ante, p. 711.</p> <p>2. -: -: -: Evidence. The sufficiency of evidence to show that a purchaser of land had notice of a prior, unrecorded deed depends upon the circumstances of each case.</p> <p>3. -: -: -: Quieting Title: Evidence. In a suit to quiet title to a quarter-section of land, plaintiff is not entitled to relief as a purchaser without notice of defendant’s rights under a prior, unrecorded deed, where the proofs show that at the time of the subsequent purchase defendant was using the land for grazing purposes and previously had been cuttirg therefrom annually about 40 acres of grass; that he had a fire-guard around 'the premises and a fence on the north line; that plaintiff was acquainted with the land, and, for the consideration of "‘one dollar and other valuables,” procured personally from the common grantor who was not in possession a quitclaim deed on which he relies, after having been told by defendant that the latter owned the land.</p>

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

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

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

<p>1. Evidence: Admissibility: City Ordinances. City ordinances published in book form are not competent in evidence unless “purporting to be published by authority of the city.” If the evidence shows that it is the revised ordinances of the city, and the hook when offered is stated by counsel to show that it was published by the city council, and this statement is not challenged^ the general objection that it is “incompetent, irrelevant, immaterial, and no foundation ‘laid, and not in issue” will not be held sufficient to call the attention of the court to the question whether it purports to be published by authority.</p> <p>2. Municipal Corporations: Use on Streets: Automobiles: Regulation by Ordinance. The law’ gives cities of the second class control of their streets, and an ordinance regulating the speed of motor vehicles in the streets will not be held void as in conflict with the statute on that subject, unless it appears that the limitation of speed is such as to prohibit the free use of the streets by such vehicles.</p> <p>8. Instructions must be considered and construed together. If they are not sufficiently specific in some respects, it is the duty of counsel to offer requests for instructions that will supply the omission. And, unless this is done, the judgment will not ordinarily be reversed for such defects.</p> <p>4. Trial: Negligence: Instructions. When the jury in one instruction is told that, in order to find for the plaintiff, they must first find that the damages complained of were caused by defendant’s negligence, a subsequent instruction that, if they find for the plaintiff, the plaintiff would be entitled to recover the damage lie has sustained by reason of the negligence of defendant, is not erroneous as assuming that the defendant was negligent.</p> <p>5. New Trial: Newly Discovered Evidence: Diligence. A motion for a new trial on the ground of newly discovered evidence is properly overruled when the evidence submitted on the motion fails to show due diligence in endeavoring to produce such evidence upon the trial.</p> <p>6. Appeal: Review. It is found upon examination of the record that the evidence is sufficient to support the verdict and judgment.</p>