Volume 88 — Nebraska Reports

<p>Opinion on motion for rehearing of case reported in 87 Neb. 72.</p>

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

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

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

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

<p>1. Taxation: Foreclosure of Lien: Denial of Title of Assignee: Burden of Proof. If a defendant denies tRe plaintiff’s title as assignee of a certificate of tax purchase, the burden of proof is upon the plaintiff to establish his title, and possession of the certificate without proof that it was assigned to, or owned by, him will not satisfy that burden.</p> <p>2.-: -: Offer to Confess Judgment. In such a case, if the certificate represents taxes levied for general purposes, and assessments made by the officers of an irrigation district, an offer in the defendant’s answer to confess judgment for the general taxes does not admit the plaintiff’s title to the lien created by the district assessments.</p> <p>3. -: Sale of Wrong Tract: Subrogation. A county treasurer has no authority to sell one tract of land for the taxes levied upon another and distinct parcel of real estate; but, if the tracts were separately assessed and taxed, the sale will subrogate the tax purchaser to the lien of the public.</p> <p>4. Judgment: Irrigation Districts: Confirmation of Bond Issues: Exchange of Bonds f~r Property. A special proceeding prosecuted under section 59 et seq., ch. 70, laws 1895 (Comp. St. 1895, ch. 93a, art. Ill, sec. 59 et seq.) is an action in rem, and, if the court acquired jurisdiction of the subject, its decree cannot bd successfully assailed in a collateral proceeding; but the statute does not authorize the court to confirm the exchange of bonds for property.</p> <p>5. Waters: Irrigation Districts: Exchange of Bonds for Property. Section 10 of the act, supra, in 1897 authorized the directors of an irrigation district to exchange its bonds at par to pay for irrigation works, ditches, canals and reservoirs constructed or partially constructed within the district, and that authority is not limited by the provisions of section 14 of the act.</p> <p>6.-: -: Bonds: Bona Fide Purchasers. If the records of an irrigation district do not disclose that its directors were financially interested in the sale of an uncompleted ditch by another corporation to the district, an innocent holder for value of the district bonds delivered as a consideration for that sale may enforce payment thereof.</p> <p>7.-: -: Taxes: Authority to Levy. Section 19 of the act, as amended by chapter 78, laws 1899, authorizes the directors of an irrigation district to levy taxes upon all real estate subject to taxation within the district for the purpose of creating a fund to pay for the upkeep of the ditch and the incidental expense of the district.</p> <p>8. -; -: -: Collection: Authority of County Treasurer. Said section, as amended by chapter 78, laws 1899, authorizes a county treasurer to receive in satisfaction of a general district tax warrants drawn upon the fund, but the treasurer has no authority to accept the district bonds, or coupons clipped therefrom, in satisfaction of the general levy.</p> <p>9.---: -: -: -: -: Subbosation. The mistake of a treasurer in accepting coupons in payment for district general taxes wili not deprive the public of its right to collect such taxes, nor will such payment subrogate the purchaser to the rights of the district.</p> <p>10.-: -: Payment por Construction Work. Prior to March 31, 1899, the directors of an irrigation district did not have authority to obligate the district to pay for construction work until' they had first created a construction fund.</p> <p>11. Judgment: Conclusiveness: Cancelation op Irrigation District Taxes. A bona fide purchaser for value of land for the taxes levied thereon by an irrigation district is not bound by a decree against the county treasurer and the district canceling those taxes, but entered in an action commenced subsequent to his purchase, and to which neither he nor his predecessor in title was a party.</p> <p>12. Taxation: Tender: Interest. If a property owner tenders the treasurer the amount of his general tax, but refuses to pay an invalid assessment, he should not be required to pay interest thereafter, provided he has been at all times subsequent thereto able, ready and willing to pay his taxes, but the proof should be clear and satisfactory to give him the benefit of the rule, and it will not be extended to doubtful cases nor to an instance where the property owner has offered, in an answer to a petition for the foreclosure of the tax lien, to pay the legal taxes with interest.</p> <p>13. Estoppel: Sale op Land Subject to Taxes. The owner of real estate is not estopped to deny the legality of taxes levied thereon because he sold the land entirely on credit subject to taxes, and ■ received title back from his grantee by a deed which also excepted taxes, if, as a matter of fact, the taxes formed no part of thé consideration for the last transfer.</p> <p>14. Waters: Irrigation Districts: Validity op Tax: Estoppel. If the owner of real estate situated in an irrigation district receives no benefit from the construction of a ditch or from the water flowing therein, and no other grounds for an estoppel exist, he is not estopped from denying the legality of taxes laid to pay for that improvement.</p>

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

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

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

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

<p>Highways: Establishment: Prerequisites. In an application to the board of county commissioners to establish a new public road, under the statute in force in 1876, the pasting of four notices in the manner required by the statute, and the presentation of a petition to the board for such'road, signed by at least ten landholders, residents of the county, accompanied by sworn proof of the posting of the notices, stating when and where such notices were posted, are essential prerequisites which must be complied with before the board can acquire any jurisdiction over the subject matter of the location and opening of such new road.</p>

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

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

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

<p>1. Trespass to Person: Elements qe Damages. The facts set forth in the opinion helti to show a wanton and wilful trespass upon the person of the plaintiff, accompanied by such circumstances of aggravation as justifies the inclusion of mental suffering, humiliation and disgrace as proper elements of compensatory ■ ' damages.</p> <p>2. -: Matter in Aggravation. • Matter in aggravation*is something done by the defendant upon the occasion of the commission of the principal trespass, which is of a different legal character from, but not inconsistent with, the trespass.</p> <p>3. -: Measure oe Damages: Question eor Jury. Where there is a direct invasion of personal rights under circumstances showing malice, or a wilful and wanton disregard of another’s right to personal security, the amount of compensatory damages is not susceptible of exact computation, and must usually be left to the sound discretion of the jury.</p> <p>4. Appeal: Excessive Damages. Where, in such a case, considering all the circumstances, the verdict is for such amount as clearly shows it is the result of passion or prejudice, it cannot be upheld, and a remittitur will be required, or the case reversed and remanded for a new trial.</p>

<p>1. Appeal. Dismissal. An ex parte motion to dismiss an appeal in this court, based upon papers not a part of the transcript, and which have been filed without leave, .should not be entertained.</p> <p>2.-: • Abatement: Practice. When it is sought to show that an appeal has abated by reason of matters happening after the appeal has been perfected, the moving party should proceed by way of plea in abatement and service of notice on the adverse party.</p> <p>3. Hearsay testimony which is incompetent is not made admissible by reason of the death of the person who made the statement sought to be proved.</p> <p>4. Evidence examined, and held to warrant a decree in favor of the defendants.</p>

<p>1. Nuisance: Injunction. The process of . injunction cannot be availed of by a private citizen to abate a public nuisance, unless he suffers special or peculiar injury therefrom, aside from-that suffered by the general public.</p> <p>2.-: -: Evidence. Evidence examined, and. held that it fails to show that any special injury or damage to the plaintiff’s property will result if the proposed sidewalk is laid according to the plan now contemplated by the defendant. But, held further, that the restraining order and temporary injunction were properly allowed, for the reason that if the first plan were followed special damage to plaintiff would occur.</p>

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

<p>School Districts: Consolidation: Right to Contest. A person who owns taxable property within the territorial limits of a school district, but who is not a legal voter therein, has no such interest in the matter of the consolidation of that district with an adjoining one as authorizes him to contest the annexation proceedings either at the original hearing before the county superintendent or upon a review of the same by the district court.</p>

<p>1. Vendor and Purchaser: Fraud: Remedies. Persons induced by-fraud to purchase and agree to pay for real estate may, if they act promptly after discovering the facts, rescind the contract or may retain the land and, within the time limited by statute, maintain an action against the vendors for damages, or, whenever sued by their vendors to recover the price for which the land was sold, may plead such damages by way of recoupment.</p> <p>2. Limitation of Actions: Fraud. An action to recover damages for the defendants’ alleged fraud is barred by the statute of limitations, if not commenced within four years of the' date the plaintiff first discovered the fraud.</p> <p>3. -: -: Action by Purchaser. An action prosecuted by the vendees for the cancelation of their overdue notes and a mortgage executed as part consideration for land they were induced to purchase from the defendants by reason of the latter’s fraud, for the alleged reason that the amount of the plaintiffs' damages added to the money paid upon the mortgage equals or exceeds that debt, is in effect an action to recover damages for fraud, and cannot be maintained if commenced more than four years after the discovery of that fraud, and the defendants do not ask affirmative relief, but plead the statute of limitations as a defense.</p> <p>4. -: -: -. In such an action, so much of the relief as relates to quieting the plaintiffs’ title as against the mortgage is incidental to the main object of the suit, and does not bring the case within the rule announced in Dringman v. Keith, 86 Neb. 476.</p> <p>5.-: Recoupment. While the action, supra, cannot be maintained, the vendees may set up, by way of recoupment, their damages in any action prosecuted by the payees of said note, or any person claiming title to those instruments, to recover thereon or to foreclose said mortgage.</p>

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

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

<p>Appeal from the district court for Douglas county: Lee S. Estelle, William A. Redick and Alexander C. Troup, Judges.</p>

<p>1. Marriage: Validity. The consent of competent parties is essential to a valid contract of marriage.</p> <p>2.-: Suit to Annul: Quantum: of Proof. If a contract of marriage has not been consummated, the court should require no greater quantity of proof to sustain a finding of fraud or of mental incapacity in a suit to annul that contract than it demands to sustain those issues in any other cause.</p> <p>3.-: -Evidence. If, in an action to annul a contract and ceremony of marriage because of the plaintiff’s alleged mental incapacity and the defendant’s alleged fraud, it appears that the plaintiff at the time he became a party to that contract and ceremony successfully managed property of the value of about $6,000, which he had accumulated, that he had been acquainted with the defendant five years preceding their marriage, courted her openly four months preceding the ceremony, which he voluntarily suggested should take .place, successfully withstood one-half her demands for a marriage settlement preceding said celebration, and understood the nature of the contract and the duties and responsibilities incident to the marriage relation, the court will not dissolve the marriage, although the plaintiff is advanced in years, 46 years older than his wife, slovenly in habits, with impaired vision and hearing, and is forgetful concerning recent transactions, and the defendant probably- was actuated largely by mercenary motives in entering into the contract and did not accord the plaintiff all of his conjugal rights.</p>

<p>Appeal from the district court for Keya Paha county: Jambs J. Harrington, Judge.</p>

<p>Divorce: Extreme Cruelty. Any unjustifiable conduct on tbe part of either a husband.or wife, which so grievously wounds the mental feelings, or so utterly destroys the peace of mind, as to seriously impair the bodily health and endanger the life or reason of the other, or such as utterly destroys the legitimate ends and objects of matrimony, constitutes “extreme cruelty” as defined in section 7, ch. 25, Comp. St. 1909^ although no physical or personal violence may be inflicted, or even threatened.</p>

<p>1. Municipal Corporations: Care oe Sidewalks: Liability eob Injuries. A municipal corporation cannot delegate the construction and care of its sidewalks to a private individual or corporation, and thereby evade its responsibility for such care and supervision, and thus escape liability for any damage resulting from the failure of the person or corporation, to whom such care and supervision are delegated, to use that reasonable care and diligence to keep such sidewalks in a reasonably safe condition for travel, which devolve primarily upon the municipal corporation itself.</p> <p>2. Witnesses: Cross-Examination. Where, in an action for injuries from a defective sidewalk, the defense is interposed that the village never had any knowledge or notice, prior to the accident, of the defective and dangerous condition of said sidewalk, and upon the trial such village introduces one of its trustees as a witness, it is not error to permit the interrogation of such witness, upon cross-examination, as to statements made by him a few days after the accident, to the effect that prior to the accident he had called the attention of his associate trustees, during a meeting of tbe board, to tbe dangerous condition of sucb sidewalk and tbe necessity existing for its repair.</p> <p>3. -: Impeachment. And in sucb a case, if sucb witness denies baying ,made sucb statement, it is not error to permit plaintiff, upon rebuttal, to impeach sucb testimony.</p> <p>4. Trial: Instruction’s. Tbis court will not reverse a judgment for tbe refusal of an instruction, where tbe substance thereof has been given in other instructions.</p> <p>5. Appeal: Verdict: Conflicting Evidence. “A verdict rendered on substantially conflicting evidence, and approved by tbe trial court, will not be set aside on tbe ground that it is not sustained by adequate proof.” Brong v. Spence, 56 Neb. 638.</p>

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

<p>1. Taxation: Publication of Delinquent Tax List: Designation of Newspaper. When the county hoard has designated the newspaper in which the notice and delinquent tax list and notice of tax sale shall be published under the provisions of the act of 1903 for the collection of delinquent taxes, the treasurer has no discretion in the matter. . It is his duty to publish the notice and tax list in the paper so designated within the time and in the manner provided by the act.</p> <p>2. Counties: Publication of Delinquent Tax List: Liability of Treasurer. When the treasurer refuses upon demand to furnish such notice and list to the proprietor of the paper so designated for publication, and such proprietor is damaged by such refusal, the treasurer is liable for such damages, and the same may be recovered in an action upon his official bond.</p>

<p>1. Information: Sufficiency. An information charging the defendant with wilfully, forcibly, burglariously and feloniously breaking and entering into a slaughter-house with the intent to take, steal and carry away certain described personal property, is equivalent to charging the defendant with malice, and the absence from the information of the word “maliciously” or the appearance therein of the letters “ialiciously” is an immaterial error, in nowise prejudicial to the defendant.</p> <p>2. Criminal Law: Assistant Counsel for State. The county attorney, under the direction of the district court, may procure the assistance of counsel in the prosecution of a person charged with a felony, and the appearance of such counsel in the case for the first time while the jury is being selected, but before the defendant has exercised any peremptory challenge, is not erroneous.</p> <p>3.-: Indorsement of Witnesses on Information. It is within the discretion of the trial court to permit the county attorney to indorse the names of additional witnesses on the information after the filing thereof and before the trial, and, if the defendant does not request a postponement of the trial, no prejudice will be presumed because of such indorsement.</p> <p>4. -: Exclusion of Witnesses: Discretion of Court. It is within the sound discretion of the trial court to permit the witnesses to remain in the court room during the trial.</p> <p>5.-: Accused as Witness: Cross-Examination. If the defendant testifies in his own behalf, the county attorney may, on cross-examination, ask him whether he has been convicted of a felony, and, if the witness equivocates in his answer, the prosecutor may ask such additional questions as may be reasonably necessary to bring out the fact of that conviction.</p> <p>6.-: Remarks of Judge. The district judge, in ruling upon objections to the introduction of evidence, should refrain from expressing his opinion concerning the weight of the evidence or the credibility of the witnesses, but a remark to the effect that the counsel by cross-examination had brought out some things he had better let alone is not so prejudicially erroneous as to justify ■the granting of a new trial.</p> <p>7.-: Defenses: Intoxication. In the absence of special circumstances, not appearing in the instant case, it is no defense for a defendant to prove that three hours after the offense was probably committed, and at a point 18 miles distant from the scene of the crime, he was under the influence of intoxicating liquors.</p> <p>8. -: Exclusion of Evidence. The proof is undisputed in this case that the defendant purchased in Germantown, where the offense for which he was being tried was committed, a quantity of intoxicating liquors, which he took to his home in Lincoln. Held, it was not prejudicial error to exclude proof of his declarations made before starting on that trip that he intended to purchase such liquors.</p> <p>9.-: -. If the prosecuting witness does not testify that the defendant committed the offense charged in the information, it is not error to exclude statements made by that witness to the effect that he entertained a suspicion that some person other than the defendant committed the crime.</p> <p>10. Larceny: Evidence. In a prosecution for larceny, if the owner of of the property involved had custody thereof at the time the state charges it was stolen, and testifies for the prosecution or is within the jurisdiction of the court, it is incumbent upon the state to prove by that person that he did not consent to the taking of his property; but, if that fact clearly appears from all of the testimony of the owner, a judgment of conviction will not be reversed because the witness did not in so many words testify that he did not give such consent.</p> <p>11. -: -. The evidence examined and commented upon in the opinion, and held sufficient to sustain a conviction for burglary and grand larceny.</p>

<p>1. Appeal: Motion roe New Trial: Presumptions. In the absence of a showing in the'transcript of the proceedings of the district court as to the date of the final adjournment of the term of said court, the supreme court will presume that a motion for a new trial, filed on the day of rendition of the judgment, or within three days thereafter, and which motion is referred to in the entry of the judgment as overruled, was filed during the term.</p> <p>2. -: Record: Statements oe Clerk. Statements in writing by the clerk of the court, not a part of the transcript of the record, or bill of exceptions, cannot be received for the purpose of contradicting the court records.</p> <p>3. Divorce: Pleading: Misjoinder. Where a petition for a divorce contains as a part thereof a demand for the settlement and adjudication of property rights not growing out of the marriage relation, a demurrer thereto for misjoinder of causes of action should be sustained. If said objection is seasonably made, the trial court should not proceed with the case, but order the pleadings reformed so as to present only the suit for divorce. The district court having heard and decided that part of the cause demanding a divorce and finding there was no sufficient proof of marriage, the evidence is examined, and the decision and decree of no marriage is affirmed, and the judgment for damages is reversed and the cause in that behalf remanded.</p>

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

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

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

<p>1. Divorce: Adultery: Evidence. In. an action for a divorce on the ground of adultery, it is not always necessary to show the overt act; the charge may be sufficiently proved by the evidence of such circumstances as will lead a just and reasonable man’s mind to the conclusion of guilt.</p> <p>2. Evidence examined, the substance of it stated in the opinion, and found sufficient to sustain the judgment.</p>

<p>1. Banks and Banking: Checks: Payment: Effect. Payment by a bank of a check drawn upon it does not constitute such bank a holder within the meaning of the negotiable instruments law (Comp. St. 1909, ch. 41, sec. 30), providing that an instrument is negotiated when it is transferred so as to constitute the transferee a holder thereof. National Bank of Commerce v. Farmers & Merchants Nat. Bank, 87 Neb. 841, followed.</p> <p>2. -: -: -: -. Payment by a bank of a check drawn upon it, in the usual course and in the absence of fraud or mistake of fact, extinguishes the instrument, and the bank by thereafter putting it in circulation cannot create a liability thereon against its maker or prior indorser.</p>

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

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

<p>1. Master and Servant: Independent Contractor. One who contracts to sink a well at an agreed price per foot if he procures a supply of water, and not to be paid if he fail to do so, using his own materials and machinery, and furnishing his own labor, is an independent contractor.</p> <p>2. -: Existence oe Relation. A person who is in the general employment of one person may be temporarily in the service of another with respect to a particular transaction or piece of work so that the relation of master and servant arises between them, even though the general employer may have an interest in the special work.</p> <p>3. --■: Duties oe Master. In such case the duty of using care to see that a safe place to work is furnished, or proper warning given, devolves upon the special employer.</p> <p>4. -: -. Where the independent contract is to be carried out on the general employer’s premises, he owes the same duty to the independent contractor and his servants as to any other persons invited to the particular portion of the premises where the work is to be carried on.</p> <p>5. Evidence examined, and held not to sustain the verdict.</p>

<p>1. Street Railways: Rights of Travelers. A street railway company and an ordinary traveler have equal rights of travel on the streets of a city, but each must observe due care to avoid accidents, taking into account the fact that the street car is confined to the track, while pedestrians have freedom of movement.</p> <p>2. -: Care Required at Crossings. The employees in charge of the operation of a street car are held to great caution when crossing a street intersection at a point where a car upon the opposite track is, or has been, very recently discharging passengers. The motorman should keep a sharp lookout, give ample and timely warning of the approach of the car, and have it under such control that it can be readily stopped if necessary.</p> <p>3. -: Injuries: Questions nor Jury. Questions as to whether a bell was sounded, or as to whether the rate of speed of the car was excessive, where the evidence is conflicting, should be submitted to the jury.</p>

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

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

<p>1. Specific Performance: Evidence. The direct, clear and uncontradicted testimony of two disinterested witnesses to the effect that a father, subsequent to his son’s majority, promised that if the son would remain at home and care for his parents during their natural life he should have a definitely. described tract of real estate, and testimony that the son for over 20 years, and up to the time his parents departed this life, performed his agreement, may, if believed by the court, support a decree for the specific performance of that contract.</p> <p>2. Appeal: Defense not Raised Below. In such a case, if the other children claim the real estate under their father’s will, but do not plead that the farm was their ancestor’s homestead at the time the contract was made, and no such issue is tried in the district court, the defendants will not be heard in this court to urge that defense.</p>

<p>1. Municipal Corporations: Proceedings to Disconnect Lands: Review. A judgment of the district court in a proceeding prosecuted under section 101, art. I, ch. 14, Comp. St. 1909, to exclude territory from the boundaries of a municipal corporation will not be set aside on appeal, unless it is made to appear that the trial court committed an important mistake of fact, or made an erroneous inference of fact or of law.</p> <p>2.-: -: -. And this rule applies with peculiar force where the trial judge inspected the premises before rendering judgment.</p>

<p>1. Quo Warranto: Inclusion oe Lands in Municipality. A nonresident owner of agricultural lands illegally included within the boundaries of a village may maintain proceedings by quo warranto for the purpose of preventing the municipality from exercising jurisdiction over his real estate.</p> <p>2. -: -: Laches. But in such a case the relator should not prevail if he and those under whom he claims title, for 16 years after the municipality, under color and claim of right, assumed to treat said property as part of the village, stood by without substantial objection until streets were graded and a permanent sidewalk built so as to connect the relator’s property with the built-up part of the village, and his land lies between the business section of the village and the only railway within its limits.</p>

<p>1. Statute of Frauds: Original Contract. If an officer of a corporation orally promises a prospective purchaser of the corporate stock to repay the purchase price at any time and the purchaser acts upon the promise, the agreement is an original contract, and is not within the statute of frauds. The promisor does not thereby agree to answer for the debt, default or misdoings of another person, nor does he agree to purchase goods, wares, merchandise or things in action.</p> <p>2. Corporations: Sale of Stock: Estoepel. And in such a case the purchaser is not estopped from maintaining her action because, intermediate th'e date of her purchase and the day she requested the promisor to perform, she surrendered her certificate to the corporation and received in lieu thereof another certificate representing her original purchase, and a stock dividend.</p> <p>3. Trial: Instructions. Where the law is not misstated by the trial court, but a legal proposition germane to the principles of law announced is not included in the instructions, a party will not he heard to complain if he did not submit to the trial court an instruction containing the proposition omitted as aforesaid.</p> <p>4. Appeal: Special Findings: Discretion of Court. “Interrogatories for special findings may he submitted to the jury or refused in the discretion of the trial court, and unless there has been an abuse of discretion in that regard, the ruling will not be disturbed.” Murphy v. Gould, 40 Neb. 728.</p>

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

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

<p>Municipal Corporations: Regulation of Stock-Yards: Ordinances: Validity. Where a city, under power expressly delegated by the legislature, passes an ordinance regulating the location of stockyards, the regulation stands on the same footing as a statute, and will not be declared void as an arbitrary or unreasonable interference with tbe rights of the owners of stock-yards under the guise of police regulation, unless that fact is shown by satisfactory evidence.</p>

<p>Notes: Trtat.: Dibectixg Verdtct. In a suit on an unpaid, past due negotiable promissory note, it is error for the trial court to refuse a request for a peremptory instruction in favor of plaintiff, where the uncontradioted evidence of witnesses whose credibility is not questioned shows thai plaintiff is a bona fide holder of the note, and that he purchased it for value before maturity without knowledge of any infirmity therein and of facts indicating bad faith in taking it.</p>

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

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

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

<p>1. Counties: Deposits oj? Public Moneys. The purpose of article III, ch. 18, Comp! St. 1903, commonly called the “depository law,” was to provide a place for the safe-keeping of public money; to obtain interest thereon where it was possible to do so, and to relieve state and country treasurers from liability as insurers of so much of the public money as should be placed in depository banks.</p> <p>2. -: -: Interest. The treasurer of H. county purchased, with county funds which he was unable to place in depository banks, with the approval and authority of the county board, and for the sole purpose of obtaining a safe place in which to keep the public money, noninterest-bearing demand certificates of a bank which in good faith had refused to qualify as a depository under the provisions of article III, ch. 18, Comp. St. 1903. The certificates were treated and used as cash by the treasurer in transacting the county business and were paid in full on demand! Neither the treasurer nor the bank in any manner profited by the transaction. Held, That the bank was not liable to the county for interest upon the public money with which the certificates were purchased.</p>

<p>1. Schools: Normal Schools: Validity or Statute. April 5, 1909, the legislature passed an act to establish and locate an additional state normal school; and, supposing at the time that another act passed April 1, 1909, creating the “Normal Board of Education,” was a valid act, and that such board vas the one upon which would devolve the carrying into effect of the said first named act, its name was used in said act. By subsequent proceedings in this court, in State v. Majors, 85 Neb. 875, the act of April 1, 1909, was held unconstitutional and void. Held, That the act of April 5, 1909, vas not invalidated by the mistake of the legislature as to name, and that the duty of carrying it into effect devolved upon the existing board, defendant herein.</p> <p>2. ---■:--: Location: Construction or Statute. The act of April 5, 1909, provided that cities and towns competing for the location of the state normal school should file their applications with the secretary of the Normal Board of Education within 60 days after the said act became effective. Held, That time was not of the essence of the thing to be done, and that such provision was directory merely, and not mandarory.</p> <p>3.--: -: ---: -. And the fact that prior to the decision of this court in State v. Majors, 85 Neb. 375, on November 15, 1909, the Board of Education was unwilling to take the responsibility of establishing and locating the school provided for in said act did not deprive said board of its right to thereafter proceed with the discharge of the duties enjoined by said act.</p> <p>4. -:--: -: -. And the fact that the city of Chadron filed its application with the “Normal Board of Education,” instead of with the Board of Education, did not preclude such city from having its application considered by the Board of Education after it had resumed the exercise of its powers and functions, it appearing that said application was received and filed by said board before it had taken any action in the premises.</p> <p>5. -: —:-: -: -. And the failure of defendant board to visit the various cities and towns competing for the location of the state normal school and select a site for the location of said school within the time specified in the act of the legislature was immaterial, as the later visitation of such points and selection of such site accomplished the substantial purposes of the statute.</p> <p>6. Corporations: Power to Dispose op Property. All corporations capable of taking and holding property have the jus Aisponendi as fully as natural persons, except so far as they are restrained by statute, or are prohibited by their articles of incorporation or outstanding contracts; and under this general power a corporation may dispose of the whole of its property for any lawful purpose.</p> <p>7. Colleges and Universities: Power to Dispose oe Property. A college incorporated by the statutory number of resident freeholders, for “the promotion of Christian education by harmoniously developing the moral, mental and physical powers of those who share its advantages,” which obtains its real estate by purchase and receives its title thereto in an unconditional warranty deed, and whose trustees are elected “by the Northwestern Association of Congregational Churches in Nebraska,” and which obtains a considerable portion of its funds by soliciting and obtaining “written subscriptions by way of contributions from people of all denominations and of no denomination, which were given and paid in the treasury of the corporation without any written con- . dition, trust, purpose or obligation, except that the same were to be used for the purposes of the corporation in purchasing land, erecting buildings, putting them up and supplying the school,” does not thereby become a religious, sectarian or eleemosynary corporation or institution, so as to preclude a sale by the trustees of said corporation of any or all of its property, real or personal, which sale will not divert the property from the purpose for which it was obtained and used by such corporation.</p> <p>8. Schools: Noioial Schools: Location. The evidence examined and set out in the opinion as to the acts of the Board of Education, defendant herein, subsequent to the decision of this court in State v. Majors, 85 Neb. 875, in relation to the establishment and location of an additional normal school at Chadron, field within the scope of the powers delegated to such board by the act of April 5, 1909.</p>

<p>1. Vendor and Purchaser: Land Contract: Construction. A contract to convey a specified tract of land for a certain purpose, for a specified price, with an option to the purchaser to take additional land at the same price if found to be necessary for said purpose, one dollar of said purchas'e price being advanced at the making of the contract as earnest money, is not completed by accepting a deed of the specified land and paying the remainder of the purchase price, so as to rescind the option provided for in the contract; the time specified for exercising the option not having then expired.</p> <p>2. Contracts: Construction. Punctuation marks in a contract will not be allowed, in a court of equity, to give the contract an unconscionable and inequitable meaning.</p> <p>S.-: -. Equity will not construe doubtful language in a contract so as to defeat the contract as in violation of the law against perpetuities, if it is reasonably susceptible of a construction that will validate the contract.</p> <p>4. Specific Performance: Contract for Right of Way. When a railroad company needs land for the construction and operation of its road, it is contemplated by the statute that the parties will agree as to the land to be taken and the compensation to be paid therefor, and a contract made upon such agreement will be enforced specifically unless manifestly inequitable. The fact that the statute provides a complete remedy for the railroad company when the parties are unable to agree may be taken into consideration with evidence tending to show that a contract for that purpose is inequitable and unconscionable.</p> <p>5. -: Inequitaiu.® Contracts. In an action to specifically enforce a contract to convey real estate, if the court is satisfied from the evidence that the result of enforcing it would be so burdensome and injurious to the defendant that it could not have been reasonable intended by the parties as the effect of the agreement, it will not be specifically enforced.</p> <p>6. -: -■. The evidence showing the circumstances of the making of the contract, and the results of a literal enforcement., is examined, and it is found that the legal effect of the contract with the construction contended for would be too inequitable and unconscionable to be enforced by a court of equity.</p>

<p>1. Municipal Corporations: Street Improvements: Validity of Ordinances. The mayor and council of cities of the metropolitan class had power under the act of 1897 (laws 1897, ch. 10) to prescribe by ordinance duties of the board of public works not specified in the statute.</p> <p>2. -: -: -. The ordinance of the city of Omaha directing the board of public works to advertise for bids for street improvements was within the power of the mayor and council and valid.</p> <p>3.-: -; Notice: Presumptions. A notice inviting bids for street improvements, signed by the chairman and secretary of the board of public works, will be presumed to have been authorized by that board in the absence of evidence to the contrary.</p> <p>4.-: -: Validity of Proceedings. It was not necessary that the city council should fix a definite time and place for property owners to file protest against a street improvement, or to designate their choice of material. The statute of 1897 provided that 30 days should be allowed for those purposes after the publication of the ordinance authorizing the improvement, and if such time was allowed before proceeding with the improvement the statute was complied with.</p> <p>-: -: Equalization of Assessments : Notice. The act of 1897 required the c.ouncil to sit as a board of equalization of special assessments on certain specified days, and to give notice of such sitting “for at least six days prior thereto.” Notice given for six days'immediately prior to one of the days fixed by statute for such sitting that on said day so fixed by statute assessments in a certain specified district would be equalized was sufficient.</p> <p>i>. -: -: -: -. Under that statute notice of the sitting of the council as a board of equalization might be given by the board of public works when specifically directed by the mayor and council to give such notice.</p>

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

<p>Brokers: Saie of Land: Eight to Commission. When the owner of real estate authorizes several respective brokers or agents to sell or exchange the same, but gives neither an exclusive agency, the agent or broker who actually effects the sale or exchange is entitled to the commissions. The agent under such contract Who negotiates with a purchaser, but does not effect a sale, cannot recover commissions.</p>

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

<p>1. Intoxicating Liquors: Petition for License: Freeholders. Four signers upon a petition for saloon license had jointly purchased a lot in the principal business part of a small village for $500, had paid $250 in cash, and given notes for the remainder. When they purchased the lot they did not know that the party for whom they signed would be an applicant for license. Held, That they were freeholders and competent to sign as such.</p> <p>2.-: --: Qualification of Petitioners. The fact that purchasers of real estate knew that such purchase would qualify them to sign petition for saloon license, and that they desired to be so qualified, and did sign the petition for the applicant for license soon after obtaining their deed would not disqualify them as such petitioners, if they in fact purchased the real estate in good faith as an investment and the same was so held by them.</p>

<p>1. Husband and "Wife: Joinder. The homestead of husband and wife was held in the name of the wife. An action for damages was instituted growing out of the alleged diminution in the value of the property by reason of the contiguous construction of railroad tracks and freight yards. The petition alleged that the real estate was the property of both husband and wife, and they were joined as plaintiffs. No issue as to ownership was specifically raised by the answer. Held, That the plaintiffs were properly joined, and there was no error in overruling an objection to the question as to the ownership or interest of the husband.</p> <p>2.-: Parties. Had the husband been an unnecessary party plaintiff, that fact would not prevent a recovery, as judgment could have been rendered for either party, if successful, under the provisions of section 429 of the code.</p> <p>3. Eminent Domain: Measure oe Damages: Evidence.- In their efforts to prove the amount of damages -sustained by plaintiffs, certain competent witnesses were asked as to the market value of the property immediately before the construction of defendant’s tracks and the value after the laying of the tracks and. their use for the transfer of freight. This was the proper practice. Chicago, R. I. <& P. R. Co. v. O’Neill, 58 Neb. 239. On cross-examination the witnesses were asked as to the elements considered by them in arriving at their valuations, some of which were shown not to be proper to have been taken into consideration This cross-examination was proper as tending to weaken the force or weight of their testimony, but did not so destroy it as to require the whole thereof, including that which was competent, to be stricken out and withdrawn from the consideration of the jury.</p> <p>4.-: -. “The jury in fixing the damages sustained by a landowner in consequence of the appropriation, or injury, of his property for a public use may take into account every element of annoyance and disadvantage resulting from the improvement which would influence an intending purchaser’s estimate of the market, value of such property.” Chicago, R. I. & P. R. Co. v. O’Neill, 58 Neb. 239.</p> <p>5.-: -. Those elements include injury from smoke, noise, soot, cinders and vibration.</p> <p>6. -: Excessive Damages. The testimony of witnesses as to the extent of the diminution in value of plaintiffs’ property by reason of the construction of lines of track and their use by engines and cars was conflicting. The jury were sent out by the court to view the premises. Held, That the verdict, while apparently large, but within the estimates of some of the witnesses, could not be molested.</p>

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

<p>Municipal Corporations: Title to Streets. Where land is platted for and dedicated to city or village purposes in accordance with the provisions of article I, ch. 14, Comp. St. 1909, the city or village acquires the ownership of the streets, alleys and public grounds in fee simple, and an abutting -lot owner cannot maintain an action against the city or village to recover the value of the natural products of the soil grown upon the surface of an adjacent street which has been converted to the use of 'the municipality.</p>

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

<p>1. Appeal: Questions op Fact: Review. A bill of exceptions which purports to exhibit all of the evidence adduced during the trial of an action should contain that evidence, and ordinarily, if it does not, the questions of fact will not be considered in this court. But if it clearly appears in an action in equity that evidence which was thus omitted is immaterial and irrelevant, this court will examine the bill of exceptions and retry the case.</p> <p>2. Trusts: Action by Trustee op Express Trust: Parties. Under section 32 of the code, a corporation, the trustee of an express trust, may maintain an action in its own name, with respect to the subject matter of the trust, even though its name has been changed by an act of the legislature, and it need not join the cestui que trust as a plaintiff or implead it as a defendant in the action.</p> <p>3. Mortgages: Law Governing. A promissory note which is secured by a mortgage upon real estate within this state, signed in Iowa,, payable in Pennsylvania, and containing a clause that it shall be governed according to the laws of Nebraska, should not be construed according to the laws of Iowa.</p> <p>4. Limitation of Actions: Mortgages: Interest Payments. Where, after the maturity of a note secured by a real estate mortgage, interest payments are made thereon, an action may be maintained on the mortgage at any time within ten years after the date of the last payment.</p> <p>5. Evidence: Mortgages: Interest Payments: Admissions. And if the defendants in such an action admit that interest payments were made upon the mortgage debt while it was in force, and do ' not plead or prove that the payments were not made by the owner of the equity of redemption, and it appears that the person who owned the equity at that time had agreed to pay the mortgage debt, the admission will be construed to refer to him.</p>

<p>1. Taxation: Partnership Credits: Place of Taxation The credits of a partnership engaged in the live stock commission and money loaning business, that maintains but one office in Nebraska, are subject to taxation in the county, township, precinct, city and school district where that office is located.</p> <p>2. -: -: -. The doctrine that movables follow the person will not be applied so as to defeat the taxation of partnership credits evidenced by promissory notes executed by residents of Nebraska and payable in Chicago to a partnership transacting business in this state, where it appears that the payee for many years has maintained and still maintains an office and a place of business in Nebraska in charge of an agent, through whom the loans evidenced by the notes were negotiated, and at which place an extensive commission business is transacted by the partnership.</p>

<p>1. Exceptions, Bill of: Service. It is not necessary to serve a proposed bill of exceptions upon one who purchases the subject matter of tbe litigation while the action is pending and continues the litigation in the name of the assignor. Service upon the defendant is sufficient.</p> <p>2. Judgment: Equitable Set-Oee. Where peculiar equities intervene between the parties, a court of equity may enjoin the collection of a judgment until the debtor litigates an unliquidated claim against his creditor, and if the debtor succeeds the court may set off the judgments so far as one may equal the other.</p> <p>3.-: -. If an executor sued for his testator’s debt is prevented from proving a set-off by the unconscionable conduct of an insolvent plaintiff, and by his own innocent mistake, a court of equity may, in its discretion, enjoin the collection of the judgment until the set-off is liquidated in an action at law, and subsequently set off the judgments so far as they equal each other.</p> <p>4. -: -. The evidence examined, and commented upon in the opinion, and held to establish the executor’s right to equitable relief.</p>

<p>1. Sales: Performance of Condition: Burden of Proof. If a defendant’s liability depends upon a condition which, he has not waived, the burden is upon the plaintiff to prove a performance thereof.</p> <p>2.-: Action: Defense: Burden of Proof. If the defendant, in an action to enforce a conditional liability evidenced by a written order for machinery, pleads and proves that before the order was delivered the plaintiff represented that the condition should be construed as an equivalent to representations theretofore made with respect to the machinery, and that the defendant believed and relied thereon, the condition should be thus construed, but the burden is upon the defendant to establish that fact, if it is denied by the plaintiff.</p> <p>3. Trial: Question for Jury. If the evidence is conflicting with respect to a material issue, that issue should be submitted to the jury.</p>

<p>1. Executors and Administrators: Distribution of Estate: Ratification. An executor should not distribute his testator’s estate without an order of the probate court made after due notice to all parties interested, but if he prorates the assets among all of the legatees upon the assumption that the bequests are all in the same class, and the legatees, not being under any disability, accept and retain their dividends for ten years with knowledge of the facts and without complaint, they will thereby ratify the transaction.</p> <p>2.-: -. But in such a case the executor will also be held to the theory upon which he distributed the estate.</p>

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

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

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

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

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

<p>1. Indictment: Joinder: Larceny and Receiving Stolen Property. It is proper to unite two counts in an indictment, one charging larceny and another charging receiving stolen property, knowing it to be stolen. Criminal code, sec. 419.</p> <p>2. Criminal Law: Trial: Remarks oe Judge. It is the duty of the trial court to see that the jurors who try the case are not improperly prejudiced against the defendant by remarks made in their hearing either before or after they are called as jurors in the case. The judgment will not be reversed because of such remarks by the court unless the record clearly shows the language used and that it was in its nature prejudicial to the defendant.</p> <p>3. Larceny: Indictment: Sufficiency. The indictment charged that the defendant at the time and place named “did then and there unlawfully, wilfully and feloniously steal, take and drive away seven cows.of the value of $210, and the personal property of Thomas Byron.” Held, That it sufficiently charged the ownership of the property stolen.</p> <p>4. Witnesses: Impeachment. When a witness upon cross-examination admits making statements out of court inconsistent with her evidence upon the trial, it is erroneous to permit other witnesses to testify to the statements admitted by the witness, and to detail the circumstances under which the statements were made.</p> <p>5. Criminal Law: Cross-Examination of Accused: Review. The judgment of the trial court will not be reversed for supposed errors in the cross-examination of the defendant unless the record shows that the court abused its discretion in permitting the cross-examination complained of, and that the circumstances were such that the defendant might probably be prejudiced thereby.</p> <p>6. -: Instructions: Reasonable Doubt. In a criminal prosecution, an instruction that, “The doubt which a juror is allowed to retain on his mind, and under which he should render his verdict of not guilty, must always be a reasonable one. A doubt produced by undue sensibility in the mind of any juror in view of the consequences of his verdict is not a reasonable doubt. And a juror is not allowed to create sources or material pf doubt by resorting to trivial or fanciful suppositions and remote conjectures as to possible states of fact different from that established by the evidence” — has been disapproved by this court. Under the circumstances of this case it was prejudicially erroneous.</p> <p>7. Larceny: Teiaí: Instructions. Certain instructions given by the court an'd refusals to instruct as requested are examined, and the rulings thereon found not to be prejudicially erroneous.</p>

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

<p>1. Deceit: Proof. It is a general rule of law*that, in order to obtain redress or relief from tbe injurious consequences of deceit, it is necessary for tbe complaining party to prove that bis adversary has made a false representation of material facts; that the complaining party was ignorant of its falsity, and believed it to be true; that it was made with intent that it should be acted upon; and that it was acted upon by the complaining party to his damage.</p> <p>2. Sales:'False Representations: Action: Instructions. In ah action to recover back money paid for property which the plaintiff alleges was purchased in reliance upon false representations as to it? quality, an instruction to the trial jury that if the plaintiff made the purchase under a contract for property of a certain quality, and that the defendant through misrepresentation and fraud delivered property of an inferior quality and the plaintiff was thereby damaged through the fraud ■ of defendant, their verdict should be for .plaintiff, is held erroneous, the element of the absence of knowledge on the part of plaintiff as to the quality of the property delivered and received, and that of plaintiff having been deceived by the representations, being omitted from such instruction.</p>

<p>1. Carriers: Discrimination: Statutory Provisions. Article V, ch. 72, Comp. St. 1909, was ‘enacted for the purpose of preventing unjust and unlawful discrimination by common carriers, and section la of that article, in order to accomplish that purpose, provides a reasonable method of preserving written evidence of the fact that cars were ordered by the shipper for the transportation of his live stock, the date of his order, and the time when the cars were to be furnished.</p> <p>2. -: -: Evidence. Where, in an action for damages for an unlawful discrimination by the failure or refusal of the carrier to furnish cars for the transportation of live stock, it appears that the shipper has made a written order therefor in the book which the law provides shall be kept for that purpose, his proof as to the date of his order and the time when the cars were to be furnished to him should ordinarily be confined to his written order.</p> <p>3. -: Alteration of Instruments: Burden on Proof. Where it is claimed that the order was changed or altered after it was signed by the shipper, the burden of proving that fact is on the one who asserts it.</p>

<p>1. Appearance. By a general appearance in an action the defendant waives all defects in the original summons.</p> <p>2. Appeal: Petition. The objection that the petition in the district court states a different cause of action from the one tried in the justice court cannot be considered, where the record does not contain a copy of the original bill of particulars.</p> <p>3. Principal and Agent: Evidence. A letter written by an agent of a party with his knowledge and consent ordinarily is competent evidence against him.</p> <p>4. Appeal: Conflicting Evidence. A judgment rendered upon conflicting evidence will not be reversed unless it is found to be clearly wrong.</p>

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

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

<p>Error to the district court for Saline county: T/est.te G-. Hurd, Judge.</p>

<p>1. Mortgages: Constructive Service: Names. “For the purpose of giving constructive notice to a defendant in a suit to foreclose a mortgage, where he is not sued on a written instrument signed by himself, his legal name includes his first Christian name and surname.” Butler v. Smith, 84 Neb. 78.</p> <p>2. Quieting Title: Void Foreclosure Proceedings: Rights of Mortgagor. If a valid real estate mortgage has been foreclosed, even though the proceedings are void, the mortgagor will not be heard to question the title acquired thereby unless he pays or tenders the amount of the debt and interest.</p> <p>3.-: -: -. And if the purchaser subsequently pays taxes levied on the land and delinquent, the mortgagor, as a condition to equitable relief, will also be compelled to pay the amount of those taxes, with interest.</p> <p>4. -: Intervention: Evidence. If a third person intervenes in a suit wherein a mortgagor and mortgagee are litigating their interests in real estate, and it appears that the land was conveyed to the intervener 18 years theretofore to secure payment of his grantor’s matured debt, and the intervener offers no evidence to prove the amount thereof, but contends that he owns , the land by title in fee simple, a decree quieting title in the plaintiff will not be disturbed on the intervener’s appeal.</p>

<p>Mortgages: Suit to Cancel: Ownership oe Debt: Evidence. If the defendant in an action to cancel a mortgage produces tlie notes secured thereby, and it appears that he has controlled and had undisputed possession of the instruments for many years under a claim of title thereto, these facts will sustain a finding that he is the owner thereof, notwithstanding they are indorsed payable to the order of a third person.</p>

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

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

<p>1. Criminal law: Continuance: Discretion oe Court. An application to continue a criminal case which has been set for trial upon a day certain at the request of the accused is addressed to the sound discretion of the trial court, and if it does not appear that the reasons given for requesting the continuance were not known to the accused at the time the order setting his case for trial was made, a judgment of conviction will not ordinarily be set aside because that continuance was not granted.</p> <p>2. Rape: Evidence. An undergarment worn by the prosecutrix at the time of an alleged criminal assault may, if identified, be admitted in evidence.</p> <p>3. -: -. If it satisfactorily appears from the evidence that the prosecutrix is not the wife, sister or daughter of the accused, a conviction will not be reversed because no witness testified in direct language to these facts.</p> <p>4.-: -. The evidence examined and commented upon in the opinion, and held sufficient to corroborate the prosecutrix.</p> <p>5.-: Instructions. “The failure of the court to instruct the jury, that a defendant charged with rape cannot be convicted without evidence corroborating the prosecutrix, is not error, unless it appears that such an instruction was requested.” Edwards v. State. 69 Neb. 386.</p> <p>6. Error will not be presumed, but must affirmatively appear.</p> <p>7. Criminal Law: Limitation off Argument. A conviction will not be set aside because the trial court limited counsel to an hour and 15 minutes on a side in which to argue the cause to the jury, although the practice is pot approved.</p> <p>8.-: Argument: Exception. “Abuse of privilege by counsel in addressing the jury, to be available on appeal, must be excepted to at the time.” Hill v. State, 42 Neb. 503.</p> <p>9. -: Jurors: Competency: Review. If the court upon conflicting affidavits finds that a venireman, before being called as a juror in a criminal cause, did not express an opinion that the accused was guilty, this court will not ordinarily hold to the contrary.</p> <p>10. -: New Trial: Newly Discovered Evidence. A new trial will not be granted for alleged newly discovered evidence cumulative in character and to some extent tending to impeach the ' state’s witnesses with respect to collateral facts testified to by them, where it appears that many of the witnesses relied upon to give the newly discovered evidence testified during the trial, and there is no showing of diligence before trial to procure or present the newly discovered evidence.</p>

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

<p>1. Grand Jury. Section 584 of the criminal code provides that a grand jury shall he drawn and summoned to appear at the first term of the district court in every year, unless that court, or a judge thereof, shall otherwise direct in writing.</p> <p>2.-: Selection. If the county commissioners substantially follow the statute in selecting the 60 names from which the clerk of the district court and the sheriff draw the names of the persons who are to act as grand jurors', a plea in abatement to an indictment will not be sustained because the county clerk did not enter upon the journal of the board a record of those proceedings.</p> <p>3. Criminal Law: Plea in Abatement. It is not a good plea In abatement to an indictment that it was returned by a grand jury of which the complaining witness was a member.</p> <p>4.-: Continuance. A judgment of conviction will not be set aside because the accused was denied a continuance to procure an absent witness, where it appears that his testimony is im-' material.</p> <p>5.-: Witnesses: Impeachment. In laying the foundation to impeach a witness by his testimony given before the grand jury, the county attorney is not required to state the questions propounded to the witness by the grand jury and his answers thereto, but it is sufficient if the gist of that testimony is recited. In like manner, the grand jurors may testify to the substance of the witness’ testimony.</p> <p>6.-: Evidence. The trial court in its discretion may permit a witness to testify that he saw a mark in the sand close to the point where the accused shot at the prosecuting witness, that it was made by a bullet, and was in line with the points where the testimony shows that the accused and the prosecuting witness stood at the time the shot was fired.</p> <p>•7.-: Instkuotions. “In a prosecution for a felony, error cannot be predicated upon the failure of the trial court to define a lesser offense included in the crime charged, unless requested so to do.” Barr v. State, 45 Neb. 458.</p> <p>8. -: Sep abate Counts: Election. It is within the sound discretion of the trial court to overrule a request to compel a county attorney to elect upon which of two counts in an indictment he will ask for a conviction, where one count is for' feloniously shooting at the prosecuting witness with the intent to kill and the other count charges a like shooting with intent to wound.</p> <p>9.-: Sentence Reduced. Upon a consideration of mitigating circumstances, the sentence imposed by the district court is found to be excessive and is reduced to two years.</p>

<p>1. Drainage Districts: Establishment: Findings or Board. A finding made by a board of ■ supervisors in passing upon a petition filed under tbe provisions of article V, cb. 89, Comp. St. 1907, that “it will be for tbe public health, convenience and welfare to form a district as prayed for in said- petition,” fixing tbe boundaries of tbe district and finding that “said boundaries will do justice and equity to all persons and promote tbe interests of said district,” is equivalent to finding that it will be conducive to tbe public health, convenience and welfare to drain tbe lands described in tbe petition.</p> <p>2.-: -: Petition. Tbe petition upon which tbe supervisors of Dodge county acted in fixing tbe boundaries and calling an election for tbe formation of tbe Elkhorn drainage district, examined in tbe opinion, and field sufficient as • against a collateral attach.</p> <p>3.--: -: Bond. The bond required by section 3, art. V, ch. 89, Comp. St. 1907, need not be signed by the petitioners as principals, and the county clerk may accept a petitioner as surety on the bond.</p> <p>4.-: -: -. A bond signed by principals and surety, and approved by the clerk, is not invalid for the reason that it is conditioned to become void if the district prayed for is formed, or if the petitioners shall pay the expense incurred by the county by reason of the petition.</p> <p>5.-: -: Assessments. The proceedings leading up to and including the formation of a drainage district and the assessments subsequently levied therein are not void because the scheme of drainage finally accepted will not benefit a small fraction of the tracts included within the district and upon which no assessments are levied.</p> <p>6.-: -: Notice: Apportionment of Benefits. The fact that the directors are not required to give notice before adopting a plan for draining the lands within the district does not render the act void, nor does the fact that an apportionment of benefits precedes the construction of the improvements invalidate the legislation.</p> <p>7. -: -: -: -. A provision in the statute that the directors of the district shall, with the assistance of an engineer after he has prepared a detailed statement of the proposed plan of drainage, apportion to every forty-acre tract and every city or village lot within the district its fair proportion of the total benefits to accrue from the construction of the system of drainage, but that the apportionment shall not become final until after all persons interested have been given notice of the time and place where said apportionment will be confirmed, and giving every property owner the right to protest, to a hearing, and to appeal from the order of the board, is not unconstitutional and void because all assessments shall be made upon the basis of that apportionment, unless a change of plans necessitates a new apportionment.</p> <p>8.-: -: Limitation of Assessments. While the act does not in precise language limit the aggregate of assessments that may be levied for all necessary purposes to the benefits that will accrue to the lands within the district, it appears from a consideration of the entire act that the legislature so intended.</p>

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

<p>1. Appeal: Denial of Amendment. The denial of leave to amend a pleading during the trial is not reversible error, if the record fails to disclose that the trial court in so ruling abused its discretion.</p> <p>2.-: Failure to Except. Failure to mark an Instruction "given” is not available as error in absence of .an exception on that ground.</p>

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

<p>Appeal from the district court for Hayes county: Lmsr.nn Gr. Hurd, Judge.</p>

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

<p>Appeal from tlie district court for Dundy county: Eobert C. Orr, Judge.</p>

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

<p>1. Municipal Corporations: Repair of Sidewalks: Liability of Abutting Property Owners. The act of 1887 (laws 1887, ch. 10, sec. 69; Comp. St. 1901, ch. 12a, sec. 109) governing cities of the metropolitan class made it the duty of the owners of buildings fronting upon a street of the city to keep the sidewalks adjacent to the buildings in repair; but such owners were not liable for damages caused by defects in such sidewalks until the city authorities notified them of such defects and required them to repair the same.</p> <p>2.-: Defects in Streets: Liability ox Abutting Property Owners. If the owner of city lots constructs a building thereon adjacent to a street of the city, and in such construction excavates a large space under the street to be used as a room in connection with said building, and so maintains the same for several years, it will be presumed that such excavation was made with the consent of the authorities of the city, and upon the implied condition that such excavation shall be maintained in proper and safe condition for travel along the street and the walks thereon; and the owner of the property will be liable for damages caused by his neglect to so maintain said excavation.</p> <p>3. -: -: -. A purchaser of such property upon foreclosure sale.who takes possession and rents the property and permits the same to remain for a long time in an unsafe condition will be held to have notice of the existence and purpose of the excavation and its condition, and is liable for damages caused thereby.</p> <p>4. -: -: -. If the city is compelled to pay a judgment for damages because of such neglect of the owner of said property in an action of which the owner has notice with the privilege to defend the same, the city may recover over from the owner of the property.</p> <p>5. Pleading: Sufficiency. Allegations of the petition stated, and held to be sufficient to support the findings and judgment.</p>

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

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

<p>1. Municipal Corporations; Ordinances; Repeal. On the 9th day ot December, 1897, the mayor and council of the city of L. passed an ordinance conferring upon one Z. the authority to erect and maintain a telephone system in said city without limitation of the time of the duration of the right, except that it was provided that Z. should “erect and maintain a suitable central office, with proper switchboards and apparatus for a complete telephone system in said city for the period of two years.” On the 13th day of March, 1900, another ordinance was passed, at and upon the request of Z., granting the exclusive right to occupy the streets and public grounds of the city with said system for the period of 10 years. By this later ordinance it was provided that the rights secured to Z. under the former one were reserved and confirmed in him. The last section repealed all ordinances in conflict with the later one. Held, That with the exception of ratifying and validating the occupation of the streets and public grounds of the city by the poles and wires during the time in excess of the two years, the former ordinance was repealed, and the rights of the parties were to be measured by the terms of the later and repealing ordinance.</p> <p>2. -: -: Validity. “When a city ordinance contains valid and void provisions, the valid portion will be upheld if it is a complete law in itself, capable of enforcement, and is not dependent upon that which is invalid.” In re Langston, 55 Neb. 310. Therefore, where the ordinance granted an “exclusive” right to occupy the streets, the word “exclusive,” if invalid, could be elim- ‘ inated and the remainder of the ordinance stand, providing the word did not constitute an inducement to the passage of the ordinance.</p> <p>5. Descent and Distribution; Character oír Estate, As a general rule the character of the estate at the death of the intestate, as impressed upon it by his act, determines the course of its descent.</p> <p>4. -: -. By imposing a limitation of 10 years as to the time within which the poles and wires of' a telephone system might occupy the streets and public grounds of the city, the reservation of the right of the city to cause the poles and wires to be removed during the term, the taxing of the property as personalty by the city officers, the execution of a' chattel mortgage upon the system by the owner to secure a debt, and the owner never having attached the system to any real estate owned by him, all the parties to the contract are held to have treated the property as personal, and the act of the owner to have fastened that character upon it and determined the course of its descent upon his decease.</p>

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

<p>1. Indictment: Duplicity. Where a statute makes punishable the doing of one thing or another, thus specifying a considerable number of things, then by proper and ordinary construction a person who in one transaction does all violates the statute but once and incurs but one penalty, and an indictment or information on such a statute may allege in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction “and” where the statute has “or,” and it will not be double, or subject to an attack for duplicity.</p> <p>2. Criminal Law: Venue: Evidence. The venue in a criminal prosecution'may be proved by facts and circumstances; but, where no direct evidence is produced for that purpose, the facts and circumstances relied on must be such as to presumptively establish that fact beyond a reasonable doubt.</p>

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

<p>1. Attorney and Client: Discharge of Attorney: Right to Compensation. A client may discharge his attorney at any time; but, where he does so without just cause, the law gives the attorney an action for damages therefor; and, where the attorney accepts his discharge, the express contract of employment, if there be one, may be declared to be abrogated. In such case, an implied contract arises to which the attorney may resort for the recovery of the reasonable value of his services.</p> <p>2.-: Action fob Compensation: Sufficiency of Pleading. Where the pleading in such a case contains a statement of the services performed and an allegation of the reasonable value thereof, it will, after judgment, be held sufficient to sustain a recovery based upon a quantum, meruit.</p> <p>3. Contracts: Legality. A contract based on considerations, a part of which may be illegal, and a part legal and valid in all respects, will, if separable, be enforced as to its legal provision.</p> <p>4. Evidence examined, and the sum due'the prevailing party found to be the amount awarded him by the district court.</p>

<p>1. Criminal Law: Jurors: Competency. Where, upon the voir dire examination of a juryman, it is shown that he is a fair and conscientious man, and is in all other respects competent to serve as a juror, the mere fact that he has a feeling that the white race is superior to the colored race, of which the defendant is one, does not render him incompetent.</p> <p>2. -: -: -. On the trial of a defendant charged with the crime of murder in the first degree the positive statement of a juror that “he would not, under any circumstances, join in a verdict of guilty with the death penalty,” renders him incompetent, and it is not error for the trial court to excuse him for cause.</p> <p>3.-: Challenge to Jurors: Discretion of Court. On the trial of one charged with a criminal offense, it is the duty of the court, in the exercise of a sound discretion, to arrange the order of peremptory . challenges, and the fact that the state is accorded the last challenge affords no ground for a new trial.</p> <p>4. -: Witnesses: Impeachment: Voluntary Statements. A voluntary statement, not in the nature of a confession, made to the prosecuting attorney and by him reduced to writing and signed by the defendant in the presence of disinterested parties, giving an account of his movements at and immediately after the time when the crime with which he stands charged was committed, may be introduced in evidence to contradict his 'subsequent statements in regard to that matter.</p> <p>6.-: Nonexpert Evidence: Question fob Jury. It is not error to permit a nonexpert witness who saw the ■ defendant and made an examination of his garments on the next day after the murder was committed, with which the defendant was charged, to testify that he found blood stains upon the defendant’s shirt sleeve and upon his coat; that the coat was still damp at that time as though an attempt had been made to wash out such blood stains. The weight and probative force of such evidence is a matter for the determination of the jury.</p> <p>6.-: Instructions. Instructions complained of, examined and set forth in the opinion, and held to have been properly given.</p> <p>7.-: -. Where the trial court, upon his own motion, has properly instructed the jury on a matter of defense, he is not required to repeat the instruction in another form at the defendant’s request.</p> <p>8.-: New Trial: Competency oe Jurors. The defendant, as one of the grounds set forth in his motion for a new trial, alleged that the jury had been rendered incompetent to try him by reading certain newspaper articles published in the Omaha daily papers. That question was determined by the district court upon affidavit evidence and the oral testimony of the jurors themselves. Upon an examination of the record, held that the ruling of the district court was sustained by sufficient evidence.</p> <p>9.-: Verdict: Sufficiency of Evidence. The jury in a criminal case are the sole judges of the effect and probative force of the evidence, and, where it appears from the record that there was competent evidence to sustain every material charge contained in the information, it cannot be said by a reviewing court that the evidence is insufficient to sustain their verdict.</p>

<p>Schools: Normal School Board: Compensation oe Secretary. Evidence of a contemporaneous and long-continued construction by the executive, legal and legislative departments of the "state pf gections 2, 3 and 5, subd. XIII, ch. 78, laws 1881, allowing compensation to be paid to tbe secretary of tbe board of education of tbe state normal schools for bis services as such, together with an appropriation by the legislature for that purpose, with the full knowledge of the fact that a member of the board was holding the office of secretary, held sufficient to authorize the auditor to approve such a claim and draw a warrant for its payment.</p>

<p>1. Habeas Corpus: Misdemeanor: Defective Complaint. “After trial and conviction for a misdemeanor, a prisoner will not be liberated on a writ of habeas corpus because of the insufficiency of the complaint in said criminal proceedings, if by any possible construction of the language employed therein an offense against the law is thereby even defectively stated.” In re Caldwell, 82 Neb. 544.</p> <p>2. Appeal: Questions Reviewable. Questions discussed in the brief of an appellant which are not raised by the findings or judgment of the district court as contained in the record will be consid- • ered by this court only so far as may be necessary to a proper decision of the case.</p>

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

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

<p>1. Criminal Law: Evidence: Acts of Associates. Where a person is charged with a substantive offense of such a nature that he must be present at the time of its commission in order to support a conviction, the acts of any others who are associated with him in the commission of the crime in furtherance of the common design may be admitted in evidence.</p> <p>2. -: Indictment: Sufficiency. Where the gist of the offense charged is not the conspiracy, but is a substantive act of which one or more may be guilty, it is not essential that the fact of conspiracy or that the crime was committed in pursuance of a concerted design be averred in the indictment.</p> <p>3.-: -. And in such case the fact that the persons concerned in the common crime are not jointly indicted makes no difference.</p> <p>4. -: Trial: Order of Proof. The order of proof is within the discretion of the trial court, and in such a case it is not essential that proof of the existence of a conspiracy be first made in order that evidence may be received of acts of one associated with the accused in the common design.</p>

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

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

<p>1. Burglary: Information: Surplusage. An allegation in an'information charging a violation of section 48 of the criminal code, that the building was entered during the night season, is surplusage and need not be proved.</p> <p>2.-: Elements. One who unlawfully, wilfully, maliciously and forcibly breaks and enters a mill building with the intent to Steal property of any value Is guilty, although there is no personal property therein. The third paragraph of the syllabus in Bergeron v. State, 53 Neb. 752, overruled.</p> <p>3. -: Sufficiency of Evidence. The testimony of one witness, if relevant and accepted by the jury, may sustain a conviction of burglary, even though the accused positively denies under oath that he committed the offense.</p> <p>4.-: Instructions: Alibi. In a prosecution for burglary, the accused having admitted that, 15 minutes prior to the time a person was detected attempting to rifle a safe in the office of a mill building, he was in close proximity thereto, and one witness having identified him as the guilty party, it is not prejudicial error for the court, after it has fully instructed as to the burden of proof, the presumption of innocence and as to every element essential to constitute the crime, and that if the proof is not beyond all reasonable doubt as to all of those elements the jury should acquit, to refuse to specifically instruct concerning the defense of an alibi, although the accused testified that at the precise time the burglary was committed he was about 20 rods distant from the mill building.</p>

<p>1. Fraud: Misrepresentations op Vendor. As a general rule, a mere misrepresentation of value, when made by the owner of land in an effort to sell it, is not actionable, but a vendor may be held liable in damages for misrepresenting the value of his realty to a nonresident vendee who relies on the misrepresentations in ignorance of such value and is prevented by the fraud of vendor from inspecting the property.</p> <p>2.-: -: Measures op Damages. Ordinarily in an action to recover from vendor damages for conveying realty different from that shown to vendee, the measure of recovery is the difference in value between the property conveyed and the property shown, but where a nonresident vendee purchases realty without know!-' edge of its location and value, relying on vendor’s misrepresentations in relation thereto, he may recover the difference between the value of the property and what it was represented to be, if he was prevented by the fraud of vendor from inspecting it. ■</p> <p>3. New Trial: Newly Discovered Evidence: Diligence. An applicant for a new trial on the ground of newly discovered evidence must show that he could not by the exercise of reasonable diligence have discovered and produced such evidence at the trial,</p> <p>4. Principal and Agent: Fraud: Joint Liability. Where principal and agent jointly participate in, and share the fruits of, actionable fraud, they are jointly liable for resulting damages.</p> <p>5. -: -: Liability os Principal. A principal who retains benefits derived from the fraudulent conduct of his agent is chargeable with the instrumentalities employed by the latter in carrying out the fraudulent purpose.</p>

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

<p>1. Taxation: Foreclosure oi- Tax Lien: Jurisdiction. In an action brought in the district court by a county to foreclose a tax lien on real estate for delinquent taxes assessed and levied prior to 1903, the determination of the question whether or not the county could, under the statute, maintain such action, without an antecedent administrative sale.by the county treasurer and the issuance to the county of a tax sale certificate as a basis for such proceedings, goes to the existence of a cause of action, and not to the jurisdiction of the court.</p> <p>2.-: -: Decree: "Validity. And in such a case, while the judgment or decree would be erroneous in the sense that a reversal of it might be obtained by prosecuting an appeal therefrom, yet it is not for that reason void and subject to collateral attach.</p> <p>3. Mortgages: Assignment: Record. An assignment of a real estate mortgage is an instrument affecting the title to real estate, within the purview of our recording act. !</p> <p>4.-: Foreclosure: Decree: Conclusiveness. “An assignee of a mortgage whose assignment is not of record is barred by a decree foreclosing a prior lien in a suit to which his assignor, who appeared of record as owner of the incumbrance, was made a party, unless he records his assignment prior to the recording of the deed under judicial sale pursuant to such decree.” Gillian v. MoDowall, 66 Neb. 814.</p>

<p>1. Process: Constructive Service: Proof of Service. “Where proof of service by publication in a foreclosure case has been made by affidavit which is defective, the court, in furtherance of justice, may, after the decree and sale thereunder, permit an additional affidavit to be filed, showing the actual facts as to such publication.” Britton v. Larson, 23 Neb. 806.</p> <p>3. Mortgages: Foreclosure: Decree: Collateral Attack. The question as to whether or not a mortgage in process of foreclosure is by its terms barred by the statute of limitations is one which goes to the existence of a cause of action, and not to the jurisdiction of the court; and, where it appears that the court had jurisdiction of the necessary parties to such foreclosure proceeding, its decree entered therein, though erroneous, is not subject to collateral attack.</p> <p>3. Evidence: Abstract of Title. An -abstract of title received in evidence without ohjection is competent proof of the execution and recording of a deed as therein recited.</p>

<p>Taxation: Tax Deed: Validity. A tax deed, issued in April, 1904, without an affidavit showing the service of a notice to redeem, as required by section 124, art. I, ch. 77, Comp. St. 1901, having been first filed with the county treasurer, is void.</p>

<p>1. Criminal Law: Verdict: Review. In a criminal prosecution, the determination of the credibility of the witnesses and the weight of the evidence being peculiarly within the province of the jury, a verdict of guilty, based upon sufficient competent evidence, will not be disturbed, even though this court may entertain doubt as to the correctness of the jury’s finding.</p> <p>2. Evidence examined and found to come within the foregoing rule.</p> <p>3. Instructions given and refused, examined, and held no error.</p>

<p>1. School Districts: Organization: Presumptions. “After a school district has exercised the franchises and privileges thereof for the period of one year, its legal organization will be conclusively presumed, whatever may have been the defects and irregularities in the formation or organization of such district.” State v. School District, 42 Neb. 499.</p> <p>2.-: Issuance oe Bonds: Submission oe Question. A petition of electors in a school district organized and operating under subdivision XIV, ch. 79, Comp. St. 1909, is not a prerequisite to the submission by the board of education of such district to the voters thereof of a proposition for the issuance of school bonds to be used by said board in borrowing money for school purposes; but an election may be called and such proposition submitted upon a vote of two-thirds of the members of the board of education of such district.</p> <p>3.-: Variance in Name: Validity oe Contracts. Where the name of a school district is given in the statute, and such school district upon its organization and for many years thereafter, without protest or objection by either the state or the taxpayers or legal voters residing in said district, uses a name in which the words contained in the statutory name are to some extent transposed, and also adds a number to said name for purposes of designation or convenience, such variance in the name will not invalidate acts done or contracts entered into by said school district.</p>

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

<p>1. Landlord and Tenant: Holding Oyer. If a tenant under a written lease for the term of three years holds over 45 days after the expiration of his term without the consent of the landlord, he will not become a tenant from year to year, unless the landlord has recognized him as tenant while so holding over.</p> <p>2.-: Notice to Quit. The notice to quit prescribed by the statute of forcible entry and detainer is not for the purpose of terminating the tenancy, but is rather preliminary to the action for recovering possession, and is properly given after the right of action has accrued.</p>

<p>1. Divorce: Extreme Cruelty. There may be extreme cruelty justifying a decree of divorce without physical injury or violence. Unjustifiable conduct on the part of husband or wife, which utterly destroys (he legitimate ends and objects of matrimony, may constitute extreme cruelty.</p> <p>2. -: Prior Agreement as to Property. A contract between husband and wife without permanent separation, which provides that each party shall control the income of certain specified property accumulated by their joint efforts with other similar provisions, was rightly held by the trial court to be temporary in its nature, and not binding upon the court in entering a decree of absolute divorce in an action brought several years after making the said contract.</p> <p>3. -: Alimony. Property which has been accumulated by the joint efforts and economy of husband and wife, and the title for convenience or by accident taken in the name of the wife, may, upon granting an absolute divorce, be adjudged to be property of the husband with suitable allowance to the wife as permanent alimony.</p> <p>4.-: -. An allowance of $4,000 alimony to the wife, upon a decree of divorce in favor of the husband, will not be changed upon appeal of the wife, the total property of the husband being found to be $8,000 above incumbrances, and there being no special circumstances justifying a larger allowance.</p>

<p>1. Municipal Corporations: Excavations Under Streets. Under the charter of the city of Lincoln as contained in chapter 13a, Comp. St. 1893, the city council had power to grant the right to a lot owner to excavate a room under an alley adjacent to his lot to be used as a boiler and coal room, under suitable regulations protecting the public in the free, safe and unobstructed use of the alley.</p> <p>2.-: —=——: Presumptions. When tbe evidence shows that an ordinance was enacted in 1892 authorizing such excavations, and that the same was thereupon made by the lot owner and a boiler installed therein, and that the excavation has been ever since that time used by the lot owner for such boiler room for the heating of a large building on such lot, and that the same was safely and securely covered and maintained by the lot owner, it will be presumed, in the absence of proof as to the terms of the ordinance, ■ that the ordinance was complied with in the construction of said excavation, and that the work was done with the approval of the city council.</p> <p>3.-: -: Authority to Remove. After such excavation has been so maintained and used for more than 15 years, the city authorities cannot summarily declare it a nuisance and destroy or remove the same as such.</p>

<p>Original action by the state. Demurrer to petition.</p>

<p>Original action by the state. Demurrer to petition.</p>

<p>1. Burglary: Evidence. A defendant may be convicted of the crime of “burglary with explosives” upon circumstantial evidence alone. The evidence in this case is held to be sufficient to support the conviction.</p> <p>2.-: -. In a trial for burglary, it is competent for the prosecutor to prove that an article found at the scene of the crime immediately after the burglary was discovered was the property of the defendant, and was sold to him shortly before the crime was committed. The party who sold the article to the defendant, if otherwise qualified, is a competent witness for that purpose.</p> <p>3. Criminal Law: Evidence: Admissibility. If the cashier of the bank burglarized testifies that she sold a draft to defendant at the bank shortly before the burglary, and that the draft which she produces at the trial is in her handwriting, and is the one that she so sold to defendant, an objection to receiving the draft in evidence on the ground that it is not sufficiently identified is properly overruled.</p> <p>4. -1 — : -: Review. If photographs of the defendant and his supposed accomplices are produced at the trial of a criminal case and offered in evidence by the state and excluded by the court, it will not be presumed that the defendant was prejudiced thereby. No error on the part of the trial court can be predicated upon such a proceeding, unless it appears that objection was made at the time, and that there was some action or ruling of the court prejudicial to the defendant.</p> <p>5. Burglary: Information: Evidence. Upon an information which charges burglary with the use of explosives and that nitroglycerine was the explosive used, it is necessary to prove the use of explosives. The evidence in this case is found to be sufficient for that purpose, and also sufficient to prove that the explosive used was nitroglycerine.</p> <p>6. -: Sentence. The penalty for the crime of burglary with explosives prescribed by statute is imprisonment in the penitentiary for life, or for any term not less than 20 years. The defendant in this case has served a term in the penitentiary for burglary, and under the evidence a sentence of 30 years in the penitentiary will not be interfered with by this court.</p>

<p>1. Master and Servant: Action tor Damages: Evidence: Suttioiency. The evidence, a portion of which is stated in the opinion, held sufficient to require the submission of the case to the jury.</p> <p>2. -: -: Negligence: Evidence: Siitticiency. If there is any competent evidence from which a want of proper care can be reasonably inferred, the matter becomes a question of fact for solution by the trier of fact, which, in a jury trial, is the jury.</p> <p>3. Appeal: Instructions: Statement ot Issues. The statement of the issues to be tried, as contained in the instructions, was more elaborate and in greater detail than can be commended, but, there being no unfairness in the statement and no material matter omitted, the judgment will not, for that reason, be reversed; no prejudice being shown.</p> <p>4. Instructions given are examined, and when considered together, as a whole, are found to contain no such prejudicial error as to require a reversal of the judgment; there being no material error or misdirection therein.</p> <p>5. Master and Servant: Assumption of Risks: Negligence of Master. There was sufficient evidence to sustain a finding that decedent entered into the service of defendant to engage in a specific line of labor; that the repairing of the elevator was not within his line of employment; that he knew little or nothing of the mechanism, use or handling of elevators; that defendant was fully aware of such want of knowledge before the accident, and was just before that time reminded of the fact. Held, That decedent assumed the ordinary risk of the service which he undertook to perform, but that he did not assume the, to him, unknown risks of the more hazardous service; that sending him upon such dangerous service of which it was known he had no knowledge was, under the circumstances, an act on the part of his superior from which the jury might infer negligence.</p> <p>6.-: -. “A servant has a right to assume that his master has used due diligence in providing reasonably safe appliances with which, and a reasonably safe place in which, the servant is to perform his duties, and does not assume the risk of danger arising from.the master’s negligence in that respect, unless the servant knows and realizes such risk of danger.” Kotera v. American Smelting & Refining Co., 80 Neb. 648.</p> <p>7. -: Injuries to Servant: Concurrent Negligence of Master. If an injured servant is -free from contributory negligence, the master will be held liable where such injury was caused by the concurrent negligence of the master, or his vice-principal, and of a fellow servant. ^</p> <p>8. New Trial: Newlv Discovered Evidence: Diligence. In order to obtain a new trial on the ground of newly discovered evidence, the evidence alleged to have been newly discovered must be such that the party applying for the new trial could not with reasonable diligence have discovered and produced it at the trial.</p>

<p>1. Appeal: Striking Portion or Answer: Harmless Error. The error, if any, of the district court in sustaining a motion to strike out portions of an answer will not require a reversal of a judgment, if, upon the trial, the subject involved in the stricken portions of the answer was gone into, and the issue submitted to the jury by appropriate instructions, and no prejudice resulted.</p> <p>2. Trial: Instructions: Considered as a YYhole. In the examination and construction of instructions given to a trial jury, they must be considered as a whole, and a defective one will not require a reversal of a judgment where the defect is cured by another instruction given.</p> <p>3. Appeal: Harmless Errors. Insignificant errors committed upon a trial, but none of which are so prejudicial as to require the reversal of a judgment, will not be considered on appeal.</p> <p>4.-: Excessive Verdict: Remittitur. “YYhere it appears that a judgment is based on a verdict which is excessive, though not given under the influence of passion or prejudice, it may be permitted to stand, even in actions ex delicto, on condition that the excess be remitted.” Bee Publishing Go. v. World Publishing Go., 59 Neb. 713.</p> <p>5. Damages held to be excessive, and plaintiff allowed to file a remittitur.</p>

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

<p>1. Appeal: Error in Transcript. A clerical or typographical error in a transcript brought here on appeal from the district court, which is clearly shown to be such, will not deprive the parties of a hearing of the appeal upon its merits,</p> <p>2. Insurance Contract: Enforcement. Where there is no uncertainty as to the meaning of an insurance contract, and the same is legal and not against public policy, it will be enforced as made.</p> <p>3. -: -: Nonpayment oe Premiums. Terms of the life insurance contract in question stated in the opinion, and held, that, the assured having borrowed from the company the full - amount of reserve accredited to the policy shortly before his death, there was no fund in the hands of the company to pay for continued insurance, and the assured having failed to pay his ' annual premium when due, and for more than 30 days thereafter, the policy could not be enforced.</p> <p>4.-: Local Contracts: Laws oe Foreign States. “Insurance business transacted in this state by a New York insurance company without any provision that the New York laws shall govern is not subject to the provisions of the New York statute requiring a notice to be mailed to the policy holder in that state as a condition of forfeiture for nonpayment of premiums.” McElroy v. Metropolitan Life 'ins. Oo., 84 Neb. 866.</p>

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

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

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

<p>1. Railroads: Construction oe Roadbed: Liability. A railway company by acquiring a right of way also secures the right to construct and maintain a roadbed in a lawful and proper manner, and, if in so doing it does not unnecessarily or negligently injure its grantor or his successors in interest, it is not liable to them for injuries inflicted as an incident to that construction and maintenance.</p> <p>2. Waters: Construction oe Roadbed: Negligence. The mere fact that a railway roadbed interferes with surface water not flowing in any drain or watercourse will not sustain a finding of negligent construction in an action brought to recover damages for obstructing the flow of such water.</p> <p>3.-: -: -. In an action to recover damages for a railway company’s alleged negligence in constructing its roadbed so as to interfere with the drainage of surface water, the jury should be instructed that if the roadbed did not obstruct the natural drains and watercourses through which accumulated surface water was wont to flow while the premises were in a state of nature, or if those drains were obstructed by the defendant, so long as it substituted an artificial way of equal capacity and efficiency, it was not negligent in constructing a solid, continuous roadbed for its railway.</p>

<p>1. Ejectment: Evidence: Sufficiency. As a general proposition, the plaintiff in ejectment must recover, if at all, upon the strength of his own title, and not upon the weakness of his adversary’s.</p> <p>2. Courts: Jurisdiction. The courts of Illinois have no authority by ■ partition proceedings to transfer title to real estate in Nebraska.</p> <p>3. Estoppel: Recitals in Deed. The recitals in a master’s deed which purports to convey title to real estate in Nebraska, but executed in a suit prosecuted in the.circuit court of Illinois, are not competent proof, against a stranger to the record and not in privity therewith, of the death of a person whose lands are sought to be conveyed thereby, or of any fact that might estop the legal representatives of such deceased person from asserting title to the land.</p> <p>4. Ejectment: Evidence: Sufficiency. A plaintiff in ejectment, who has not established a prima facie right to the possession of the premises, is in no position to urge that the defendant is a trespasser.</p>

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

<p>Election of Remedies: Proceedings in Another State. Where a guardian, without authority of court, sells a mortgage belonging to his ward, and afterward converts the proceeds to his own use, the ward, or the court and a new guardian for him, may . elect to sue the defaulter’s bondsmen for the full amount of the defalcation; and, if they do so, a court in another state may respect the election thus made and dismiss a subsequent suit by the ward to foreclose the mortgage on which the defaulter realized the money converted.</p>

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

<p>1. Contracts: Validity. Where a retail merchant enters into a contract with an advertising agency, which provides that the agency is to send to the merchant, weekly for a period of one year, one cut of a prescribed size, and copy of reading matter for use with each of said cuts, both the cut and the reading matter to be such as the advertising agency in its judgment thinks best to advertise the business of such merchant, for which the merchant is to pay a specified sum for each cut at a certain time, such contract is not void for lack of consideration, nor for want of mutuality.</p> <p>2.-: Breach of Contract: Measure of Damages. And where such merchant continues to receive the cuts and reading matter specified in said contract without objection or complaint for a period of four months, and makes payment therefor, and then declines to continue the contract upon the sole ground that he has gone out of business and does not need any more cuts, he is liable to such agency for its damages sustained by reason of such breach of the contract.</p> <p>3.-: -: -. And in such a ease the measure of damages would be the contract price, less whatever it would thereafter have cost such agency to complete the contract.</p>

<p>1. Deeds: Breach oe Covenant: Measure oe Damages. The measure of damages for a breach of covenant against incumbrances caused by an outstanding lease is ordinarily the value of the use of the land for the outstanding term.</p> <p>2. -: -: -. A warranty deed of real estate upon which there is a growing crop passes the interest of the grantor in the crop to the vendee, unless the crop is reserved. If there is a covenant against incumbrances in the deed, and a valid outstanding lease at the time of delivery of the deed, and the tenant is the owner of the crop, the grantee in the deed may waive his damages for failure to deliver him the crops, and sue his grantor upon the covenant against incumbrances, and if he does so his measure of damages will be the value of the outstanding term.</p>

<p>1. Forcible Entry and Detainer. The right to recover possesion of real estate by an action of forcible entry and detainer is not necessarily limited to cases in which the relation of landlord and tenant exists. Gies v. Store: Brewing Co., 75 Neb. 698, distinguished.</p> <p>2, Partnership: Powers: Renewal op Lease. W'hen a partnership is carrying on business in premises which it holds under a lease, neither partner can, without the consent of the other, take a renewal of the lease in his own name and so exclude the other partner and secure the good-will of the business for himself. If one partner takes such renewal, it will inure to the benefit of both partners and each will have an interest in the new lease.</p> <p>3. -Dissolution: Partnership Rights: Equity Jurisdiction. Partnership is a relation of trust and confidence, and upon dissolution of the partnership, without an adjustment by the partners of their rights in the good-will of the business and in the premises which they hold under lease, it is the province of a court of equity to adjust such differences.</p> <p>4. Justice of the Peace: Jurisdiction: Partnership Rights. A justice of the peace has no jurisdiction in an action of forcible entry and detainer to determine the rights of partners, upon discontinuing the partnership, in the leases which they hold or in the goodwill of the partnership business.</p> <p>5. Partnership: Renewal or Lease: Forcible Entry and Detainer. If partners have been conduoting a general real estate, brokerage and insurance business as copartners in leased premises, and one of the partners secures a renewal of the lease in his own name without the consent of the other, he cannot maintain an action of-forcible entry and detainer to put the other partner out of the premises.</p>

<p>1. Courts: County Courts: Appeal: Trial De Novo. When an action is appealed from a justice of the peace or the county court to the district court, it is to be tried de novo in the district court; this rule applies in probate proceedings.</p> <p>2. -: -: -: Pleading. In such case the plaintiff may reply to an answer that alleges new matter in defense. In ordinary cases the district court may require issues to be made up and tried as in original actions begun in that court.</p> <p>3. Wills: Probate: Appeal: Pleading. Upon appeal to the district court of a contest of probate of a will, if the parties agree that the cause shall be tried upon the original pleadings in the county court, and the court so orders, the contestants are not entitled- to judgment upon the pleadings for want of a reply to objections filed in the county court. Under such an agreement of counsel the allegations of new matter, if any, in the objections to probate will be considered in this court as denied by the proponent.</p> <p>4. -: -: Evidence: Testamentary Capacity. When one of two subscribing witnesses to a will is deceased, and the other subscribing witness upon a trial of contest of probate of the will testifies to facts showing that the will was duly executed by the testatrix, but fails to testify as to the capacity of the testatrix, that fact may be established by other competent witnesses.</p> <p>5. Witnesses: Attorney as Witness. When matters important to the litigation are peculiarly within the knowledge of the attorney conducting the litigation, and there is danger of a failure of justice for want of such evidence, the attorney is justifiable in becoming a witness, and his testimony, if material and otherwise competent, will not be disregarded because he himself framed the questions to which his answers were given, when it appears that the most material part of his testimony was given in answer to questions propounded by the trial judge without objection at the time.</p>

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

<p>Appeal: Evidence: Sufficiency. The only question presented upon this record is as to the sufficiency Of the evidence to support the verdict. Upon examination of the evidence, it is held that there is not such a failure of evidence as to justify this court in setting aside the judgment.</p>

<p>1. Appeal: Interlocutory Order: Waiver of Error. Where a litigant desires a review of an interlocutory order of the district court, it is necessary that an exception be taken thereto and that such exception be shown by the transcript of the record.* Ordinarily a failure to except is a waiver of the error, if any were committed.</p> <p>2. Pleading: Motion to Strike. A portion of a paragraph of a petition, though inartistically pleaded, contained facts which were material to plaintiff’s cause of action. Another portion of the same paragraph was not material. A motion to strike out the whole of the paragraph should not be sustained.</p> <p>3.-: Petition: Sufficiency. The petition, set out in substance in the opinion, held to state a cause of action, and the sustaining of a general demurrer thereto and dismissing the action was erroneous.</p> <p>4. Contracts: Breach: Damages. “The general rule is that the party injured by breach of contract is entitled to recover all his damages, including gains prevented as well as - losses sustained, provided they are certain and such as might naturally be expected to follow the breach.” Western Union Telegraph Co. v. Wilhelm, 48 Neb. 910.</p> <p>5. Case Distinguished. Trinidad Asphalt Mfg. Co. v. Bnekstaff Bros. Mfg. Co., 86 Neb. 623, distinguished.</p>

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

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

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

<p>Judgment: Conclusiveness. A judgment of the district- court, having jurisdiction of the subject matter and all of the necessary parties in an action to quiet title, and from which no appeal has been taken, is binding and conclusive as to the rights of the same parties in a subsequent, proceeding by which it is sought to partition the land in question in such former action.</p>

<p>1. Wills: Construction: Words of Limitation. The rule that words of limitation shall he applied to the death of the first taker without issue during the life of the testator is extremely technical in its character, and does not apply where there are any indications, however slight, that the testator referred to death subsequent to his own demise.</p> <p>2. -: -: Stjbvivobship. The general rule is that the period of time to which survivorship relates depends upon the intention of the testator, rather than upon technical language used in a particular clause in a will.</p> <p>3. -: -: Equitable Conversion. Where power is given to an executor to convert the real estate into money, and he is directed to pay the proceeds over to the guardians of certain minors during their minority, a court of equity will decree that an equitable conversion of the real estate of the testator took place, and that the estate should be distributed as personal property in accordance with the terms of the will.</p> <p>4. -: -: Estate Bequeathed. A testator devised and bequeathed all his property, real and personal, to A and B, two grandsons, share and share alike, and provided that in case of the death of either his share should revert to the other. He also gave power to the executor to sell the real estate, and directed that the proceeds should be paid to the lawful guardians of the minor grandsons and held in trust “until each attain his majority when he shall have his share.” Held, That the period of distribution limited the survivorship, and that the gift took effect at the testator’s death, with a gift over to the survivor upon a contingency terminable at the attainment of majority.</p> <p>5. -: -: -. Held, further, That since A attained his majority before his death, the contingency by which his title might be divested and B substituted became impossible, and B thereafter had no interest in the one-half of the estate given to A.</p>

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

<p>Husband and Wife: Antenuptial Contract: Estoppel. Plaintiff entered into an oral antenuptial contract to release all claim to the real estate of his intended wife on the payment to him of $1,000 after her death. The contract was reduced to writing and signed by both after marriage. Afterwards he was paid $330 on * the contract by his wife in her lifetime, and she provided for the payment of the remainder of the $1,000 by her will. Held, in this an action for partition, in which he seeks to assert his marital rights in and to the real estate of his wife without regard to the contract, and without offering to return the money paid him, that he cannot thus accept and retain the benefits of the contract and at the same time maintain an action based upon the ground of its invalidity.</p>

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

<p>1. Boundaries: Location. If the location of section and quarter section corners as established by the government surveyors can be ascertained, those corners will control the boundary between coterminous quarter sections of land.</p> <p>2. -: -. If the government corners are obliterated and their location cannot be established by witnesses who know the site thereof, other competent evidence relevant to the issue may be considered.</p> <p>3. -: -. In that event, in establishing a boundary between coterminous quarter sections within the interior of a township, surveys according to the government field notes from known government corners, both north and south and east and west of the corner in dispute, so as to locate the contested corner on a line with other corners on both of those lines and to give each owner an equal amount of land, should ordinarily be preferred to a survey which does not commence at a known or conceded government corner and gives to one owner much more land than is accorded the other.</p>

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

<p>1. Pleading: Sufficiency on Appeal. If a petition is not attacked until after an appeal to this court, it should he liberally construed for the purpose of sustaining the judgment.</p> <p>2. Divorce: Petition: Sufficiency. The petition in this case is sufficient to sustain a decree divorcing the plaintiff from the defendant.</p>

<p>1. "Wills: Probate: Contest: Instructions. In a contest over the, probate oí a will, it is error to instruct the jury their verdict will be that the instrument offered for probate is not the will of decedent, if they find she did not sign it, where the evidence is insufficient to sustain such a finding.</p> <p>2.-: -: Witnesses: Privileged Communications. In a contest over the probate of a-will, between the person therein named as an executor or a legatee and the heirs at law of decedent, section 333 of the code, forbidding the disclosure of privileged communications, does not prevent a physician from testifying on behalf of either side of the controversy to the mental condition of testatrix, though the information which enables him to do so was acquired solely in his professional capacity, while attending her during her last illness.</p>

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

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

<p>1. Jury: Right to Trial by Jury: Waiver. In an action upon a city ordinance in which the penalty is a fine only, the defendant upon appeal to the district court may waive a jury, and consent, that the cause be tried before the court upon the evidence taken before the police magistrate and preserved in the record.</p> <p>2. -: -: -. If such stipulation has been improvidently made, under a mistake of facts, to the prejudice of the defendant, the court might allow the stipulation to be withdrawn upon proper showing, and if the defendant, under advice of competent attorneys, goes to trial before the court without objection, he will be held to have waived a jury for the trial of his cause.</p> <p>3. Municipal Corporations: Police Magistrate: Judgment: Validity. When a prosecution for violation of a city ordinance is tried in police court, appealed to the district court by defendant, and afterwards brought to this court upon petition in error, it is too late to object In tbis court for the first time that the police magistrate lost jurisdiction because judgment was not pronounced in police court until five days after the cause was tried and submitted.</p> <p>4. -•: -: Disqualification of Judgf,: Waiver. In a prosecution for violation of a city ordinance, upon appeal to the- district court from the judgment of the police magistrate, if the defend- • ant, knowing all the facts in regard to the supposed disqualification of the judge, states in open court that he has no objection upon that ground, he cannot afterwards avail himself of such objection in this court.</p> <p>5. -: Evidence. The evidence is found to be sufficient to support the judgment.</p>