Volume 89 — Nebraska Reports

<p>1. Appearance. “An appearance for the purpose of objecting to the jurisdiction of the court of the subject matter of the action, whether by motion or formal pleading, is a waiver of all objections to the jurisdiction of the court over the person of defendant.” Perrine v. Knights Templar’s é Masons’ Life Indemnity Co., 71 Neb. 273.</p> <p>2. -. “A defendant may appear specially to object to the jurisdiction of the court, but if, by motion or other form óf application to the court, he seeks to bring its powers into action, except on the question of jurisdiction, he will be deemed to have appeared generally.” Gropsey v. Wiggenhorn, 3 Neb. 108.</p> <p>3. Insurance: Action: Defenses: Evidence: Admissibility. In a civil action upon a benefit certificate, issued by a fraternal beneficiary society, and which contained a cjause that, if the death of the member shall occur by the hands of his beneficiary, except by accident, the certificate should be void, the fact, if true, that the beneficiary had murdered the assured would constitute a defense to the action. The evidence of the commission of the crime would depend upon the proof of the fact of the criminal act. A certified transcript of the record of conviction of the beneficiary is not admissible as substantive evidence of the facts upon which the prosecution was founded, nor of the fact of the murder of the assured by the beneficiary.</p> <p>4. Trial: Instructions. An instruction to a jury that the result of a criminal prosecution for the commission of the acts which would avoid the certificate was not to be considered by them held properly given.</p> <p>5. Evidence: Oral Evidence to Explain Letters. Certain letters, written by plaintiff to a bucket shop dealer, were introduced in evidence by defendant. The meaning of the language contained in the letters could not be understood by one not acquainted with the circumstances under which they were written. Held, That there was no prejudicial error in permitting plaintiff to explain the circumstances and her meaning in the language used.</p> <p>6. Insurance: Trial: Question oe Pact. The question of the murder of the assured by plaintiff was exhaustively investigated upon the trial by ,the production of oral evidence of circumstances tending to prove and disprove the charge. The only witness present at the time of the killing of decedent was plaintiff, who took the witness-stand and testified to facts which, if true, established her innocence. The question of fact was for the jury, and with their finding on conflicting and circumstantial evidence the supreme court cannot interfere.</p>

<p>1. Mechanics’ Liens: Substantial Performance of Contract. In a suit to foreclose a mechanic’s lien for labor performed and material furnished in the construction of a building under contract, relief will not be denied the plaintiff because of omissions in the performance of the contract in details of the work, or time of completion, when there has been a substantial performance on his part; the defendant having his remedy in damages.</p> <p>2. -:-. The contract between the contractor and subcontractor provided for the payment of 80 per cent, of the value of material delivered and in place monthly, as the work progressed, the remaining 20 per cent, to be paid “within 30 days after the completion and acceptance of this work,” but did not specify by whom the acceptance was to be made. The contract being thus incomplete, it is held that a substantial compliance therewith in the matter of execution and' surrender of the work and material to the contractor was sufficient to enable the subcontractor to maintain his action, without waiting for the completion of the structure by the contractor and its acceptance by the owner, but subject to any defense the contractor might have for damages on account of noncompliance with details.</p> <p>3. Contracts: Building Contract: Extras. The contract between the contractor and subcontractor provided that no work done or material furnished by the subcontractor should be considered as extra or paid for as such, unless a separate agreement in writing therefor should be made before the commencement of such work or furnishing of such material. The contractor was a nonresident of the state, having its principal places of business out of the state. The work was under the direction of superintendents in charge and upon the ground. Extras were ordered by them and furnished by the subcontractor without such written agreement, that clause of the contract being ignored. It is held that the absence of such written agreement cannot, under- the circumstances, furnish the contractor a defense to the claim for such extras actually furnished.</p> <p>4. -: -: Construction. Held, also, That the clause in the contract that no orders for extra work should be given “by employees upon the job” did not include superintendents in charge.</p> <p>5.-: -: Liability fob Material. Where a contractor purchases and furnishes material to a subcontractor, informing him of the cost and the price that will be charged, the subcontractor has his election, either to accept and use the material or reject it. If he accepts and makes use of the material he will be held liable for the price previously fixed by the contractor.</p> <p>6. Appeal: Evidence: Sufficiency. Where a claim was made by a subcontractor against the contractor for the use of scaffolding material belonging to such subcontractor, and the evidence showed that both parties had lumber of the kind upon the ground and used the same to some extent without discrimination, no sufficient proof of the quantity used nor value of such use being made, the evidence in support of such claim held insufficient to justify its allowance.</p>

<p>1. Affidavits. An affidavit subscribed and sworn to before a person not authorized by law to administer oaths is void and no affidavit.</p> <p>2. Taxation: Redemption: Notice: Proof of Publication: Affidavit. The proof of the publication of a notice of the time within which redemption of real estate from sale for taxes can be made must be by affidavit. Such “affidavit” sworn to before a person who gives his official title as “U. S. Comm.,” he having no authority to administer oaths, is not an affidavit within the meaning of section 367 of the code, and a tax deed issued thereon is void.</p>

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

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

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

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

<p>Trial: Directing Verdict. At the conclusion of the plaintiffs evidence, plaintiff and defendant each moved the court for a directed verdict. Defendant then asked to withdraw his motion and to be allowed to introduce evidence. This request was refused, and a verdict directed for plaintiff. Held, That in such case prejudicial error will not be presumed, and the judgment of the district court will be affirmed under section 145 of the code, where the record does not disclose any facts showing that defendant suffered any prejudice or that he had a substantial defense to the action.</p>

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

<p>1. Elections: Electors: Residence. If a man whose family resides in a foreign country or in a sister state, comes into Nebraska temporarily for the purpose of working upon a railway, and while engaged in that vocation boards in a box car which is moved from station to station according to the directions of his superintendent, and as his work progresses, and immediately after the work is completed departs from the community, and while there performs no act other than to vote, nor makes any statement tending to. prove an intention to acquire a residence in this state, he is not a resident within the meaning of section 1, art. vn of the constitution, nor an elector, notwithstanding the car in which he boards may have remained on' a side-track in a voting precinct during the greater part of four months next preceding the election.</p> <p>2.-: Illegal Votes: Circumstantial Evidence. Circumstantial evidence is competent to prove which candidate received the benefit of illegal votes cast at an election.</p> <p>3. -: Marked Ballots. A ballot should not be treated as void solely because it is marked in a peculiar manner; but, if the voter’s intention can be ascertained from an inspection of the ballot, it should be counted in accordance with that intent.</p> <p>4. -: -: Presumptions. Ordinarily, in the absence of extrinsic evidence, the court will not presume that an irregularly marked ballot was thus prepared for the purpose of identifying the elector.</p> <p>5. -: -. A ballot marked solely with a line or combination of lines wholly within a party circle should be counted for the candidates of that party, if there is no evidence that the lines were traced for the purpose of identifying the ballot.</p> <p>6. -: -. A ballot marked with a well-defined cross within a party circle should not be rejected because of marks without that circle which extend into another party circle, where it appears from all of the lines that the elector intended the cross to evidence his vote.</p> <p>7.-: Rejected Ballots. Where no more ballots are cast than the number of electors voting, and upon a recount one of those ballots is found in an envelope marked by the election board “rejected,” and transmitted under their seal as part of their record to the county clerk, but neither the ballot nor the envelope is marked “spoiled” or “unused,” and it appears prob•able from the testimony that the ballot was thus segregated from the other ballots by mistake, it should be counted, if fair on its face and not impeached by any fact or circumstance appearing in the evidence.</p>

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

<p>1. Insurance: Insolvency: Suit to Enforce Liability of Members. A single suit in equity cannot be maintained by the receiver of an insolvent mutual hail insurance company, organized under chapter 43, Comp. St. 1909, against all of the policy-holders of such insolvent company, for the separate liability of each policy-holder for unpaid assessments, whether levied by the directors of the company before insolvency, or1 by the' court thereafter, on the ground that such single suit would prevent a multiplicity of actions at law; nor can such a suit be maintained on the ground that It is ancillary or auxiliary to the main insolvency proceeding; nor upon the ground that the money when collected would become part .of a fund that would be distributed under the direction of the court, since no question is involved in wheh the defendants have a common interest, and the suit is merely an aggregation of separate actions at law, each involving separate issues and having' no relation to each other, except that there is a common plaintiff, and in each of which the remedy at law is adequate, and is the remedy pointed out by the statutes governing such companies.</p> <p>2.-: -: -: Process. Nor can the receiver join in one action all policy-holders or members of such company who are severally liable for individual unpaid assessments, those who reside in counties other than the county where the suit is brought, as well as those who reside within such county, and issue summons to such other counties to obtain service upon such nonresidents.</p>

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

<p>Motion for rehearing of case reported in 88 Neb. 316.</p>

<p>1. Quieting Title: Defenses: Demurrer. In an action to remove a mortgage as a cloud from plaintiff’s title which he had acquired by purchase of the real estate at execution sale, it was alleged in the answer that plaintiff formerly had two mortgages which were liens upon the real estate prior to the lien of the execution judgment, and that the owner of the fee had paid these mortgages with the proceeds of another mortgage which he gave on the same land for that purpose, which mortgage had in turn been paid with the money loaned by defendant for which defendant’s mortgage was given, and that all this was done with the knowledge of plaintiff. Held, That such answer was not subject to general demurrer.</p> <p>2.-: -: -. In such case the further allegation that the plaintiff, knowing that the defendant’s mortgage had been so given and received, and that all prior mortgages had been in fact so paid without being canceled on the record, procured the said prior mortgages to be deducted by the appraisers from the value of the land in the execution sale and so purchased the land at about one-fifth of its real value, and afterwards procured the said prior mortgages to be released, with the purpose of defrauding defendant, her mortgage being subsequent to the lien of the judgment under which plaintiff, purchased the land, is held to state a defense as against a general demurrer.</p> <p>3. Parties: Intervention. In such an action the owner of the fee has such an interest in the land which is the subject of litigation as to enable him to intervene and contest the plaintiff’s title and assert the homestead character of the land.</p>

<p>1. Contempt: Incompetent Evidence: Review. Upon review in this court of a trial by the district court without, a jury, it will not be presumed that the trial court acted upon or considered incompetent evidence. The action of that court in admitting evidence will not be reviewed.</p> <p>2.-: Review. The evidence in the record is found to be sufficient to support the judgment.</p>

<p>1. Mandamus: Right to Answer After Demurrer Overruled. When a demurrer to an application for a writ of mandamus or to the alternative writ itself is overruled, the respondents should ordinarily be allowed to answer. This is so when the demurrer has been sustained by the trial court, and is overruled by this court upon appeal. In such case when the judgment of the trial court is reversed and the cause remanded generally, or with specific instructions to allow the relator to amend, the respondents should ordinarily be allowed to answer after relator has amended his application for the writ.</p> <p>2.-: Issues: Trial. When it appears to the trial court upon the objections of respondents to the allowance of a writ of mandamus that there is a substantial issue of fact upon which the right to the relief demanded depends, an alternative writ should be issued returnable to the county where the action is pending. Such issues cannot be tried at chambers.</p> <p>3.-: Pleadings. When the alternative writ is issued, it must contain all of the facts upon which the relator relies. The writ and return, or answer, thereto constitute the issues. No other pleadings are allowed.</p> <p>4.-: Procedure. When • upon notice of application for a writ of mandamus the respondents appear and object to the allowance of any writ, and no substantial issue of fact is presented by the objections of respondents, the court may issue a peremptory writ, and the district judge has such jurisdiction at chambers in any county in his district, and without issuing any alternative writ.</p> <p>5.-: Return. If a general denial in the objections or answer to the application for the writ of mandamus is inconsistent with other allegations or admissions in the answer, such general denial should be disregarded.</p> <p>6. -: -. The application of the city of Crawford for a writ of mandamus alleged that “the relator is and has been since May, 1907, a municipal corporation, having a population of more than 1,000, existing under the laws of Nebraska as a city,” that prior to that time the same territory was incorporated and styled the “Village of Crawford,” and that the relator “succeeded to all the rights of said village.” Held, That the denial of the answer “that the said relator is a city of the second class, and that it has ever been such city,” is not a sufficient allegation of fact to constitute a defense.</p> <p>7. Highways: Road Fund: Claims Against Counties: Power to Compromise. When a county has collected money for the road fund upon property of a city or village, one-half of such money belongs to the city or village, and should be paid cfver by the county treasurer upon demand. The officers of the city or village have no power to compromise the right to such money. The payment of a part by warrant which is received by the city or village as full payment, and an order of the county board “disallowing” the remainder of a claim filed for the whole amount, and the fact that no appeal has been taken from such order, constitute no defense in favor of the county.</p> <p>8.-: -: -; Defenses. The allegation that the county “disputed the receipt of said sum of money in good faith” is too indefinite to furnish, in any view, a basis for a compromise; it not appearing from the allegation what part of the city’s' claim was disputed by the county, and no facts being alleged from which it can be determined whether there was in fact a genuine controversy.</p> <p>9. Mandamus: Claims Against Counties: Defenses This action having been pending for more than 15 months, an answer was filed alleging that no estimate or appropriation has been made or published to provide for the payment of the money, and there is now no cash in the treasury, nor any levy against which a warrant could be issued, nor any adjudication of the claim by any court or by the county officers. Held, That these allegations constitute no defense.</p>

<p>1. Larceny: Sufficiency of Evidence. In a prosecution for burglary and larceny, the jury found the accused not guilty of burglary, but guilty of larceny, and that the value of the property stolen was $50. The evidence is examined, the substance set out in the opinion, and it is held that there was sufficient to support a conviction of larceny.</p> <p>2.-: -. While it is necessary, in order to sustain a verdict of guilty of larceny, to prove that the property alleged to have been stolen was taken without the consent of the owner, yet it is not always required that such proof be by direct evidence. If all the facts and circumstances shown establish the fact of nonconsent, that will be held sufficient.</p> <p>3.-: Sentence. Plaintiff in error being found guilty of stealing property of the value of $50, a sentence to the penitentiary for three years therefor held excessive, and reduced to two years.</p>

<p>1. Process: Names Unknown. In law the name of a person consists of one given name and one surname, the two, using the given name first and the surname last,' constitute such person’s legal name; and to be ignorant of either the given name or surname of such a one is to be ignorant of the person’s name within the meaning of section 148 of the code.</p> <p>2. Tax Foreclosure: Constructive Service: Jurisdiction. In an action to foreclose a tax lien where there has been no administrative sale of the real estate, no personal service of summons, no appearance by any of the defendants, and the land itself is not made a party, if either the Christian or surname of the owner or the occupier of the premises is unknown, and there has been no attempt to comply with the provisions of section 148 of the code, the court is without jurisdiction' to render a decree which will deprive the owner of his right of redemption.</p> <p>3. Evidence examined, and found sufficient to sustain the judgment of the 'district court.</p>

<p>1. Usury, Defense of by Partners. Usury may be pleaded by one co-partner who, for a consideration, has assumed the payment of a partnership debt, and the debt of his copartner, for which he was personally liable as a member of the firm and as surety, although after the dissolution of the partnership he has renewed the note tainted with usury by the execution of one in his own name.</p> <p>2. Notes: Bona Fide Purchaser: Burden of Proof. • Where usury In the original transaction for which a negotiable promissory note has been given is proved, a party who claims to have purchased the note before maturity must assume the burden of proof to show that he is a bona fide purchaser for value, before maturity, and without notice.</p> <p>3. Usury: Belief in Equity. When a borrower goes into a court of equity to seek relief from an usurious contract, he should be required to pay the amount of the principal and lawful interest as a consideration for such relief, and it is the duty of the court in granting him relief to render a decree or judgment for the actual amount of the loan, with 7 per cent, interest thereon.</p>

<p>Appeal: Moot Question. Where, on the hearing of an appeal, it is disclosed that the record presents nothing but a moot question for the determination of the supreme court, ordinarily the proceeding will be dismissed or the judgment of the district court will be affirmed.</p>

<p>Vendor and Purchaser: Contract: Rescission. Where parties have entered into a contract for the purchase and sale of real estate, they may afterwards by the destruction of the written paper evidencing the same, under an oral agreement that the contract shall be rescinded and thereafter held for naught, effectually do away with the previous agreement.</p>

<p>1. Tenancy in Common: Adverse Possession: Limitations. The statute of limitations will begin to run in favor of a cotenant in possession claiming title in himself to the entire estate as against the-other cotenants, as soon as knowledge of the fact that he is in possession asserting that he owns the entire estate, hostile and adverse to any claim of right in them, is clearly brought home to them.</p> <p>2. Limitation of Actions: Rights op Heirs. Where the right to bring an action to recover land is barred by the statute of limitations during the lifetime of one claiming title to the same, the right of his heirs is also barred.</p>

<p>1. Waters: Preventing Natural Drainage. Every Interference by one landowner with the natural drainage to the injury of the land of another is unreasonable, if not made by the former in the reasonable use of his own property.</p> <p>2.-: -. It is not a reasonable use of one’s property to construct a dike across a natural drain upon farm lands for the sole purpose of preventing the flow of unpolluted water from a neighbor's land in the natural course of drainage, where such flow had theretofore at all times been uninterrupted.</p> <p>3.-: Changing Course of Drainage. A lower proprietor has no lawful cause for complaint because the upper proprietor, in the exercise of good husbandry, by the use of ditches changes the course of drainage upon his own premises, but permits the water to flow without an appreciable increase in volume upon the servient estate in a natural drain, where it would have appeared if the ditches had not been constructed.</p> <p>4.-: -. If an upper proprietor, in the interest of good husbandry, and without negligence, collects in a ditch surface water, which formerly spread over his premises, and* accelerates its flow in the natural course of drainage through a ' natural drain onto the lands of his neighbor, he is not liable therefor.</p>

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

<p>1. Negligence: Setting Out Fire. One who sets out a fire on his own premises without taking such precautions as a reasonable man should to prevent it from spreading to his neighbor’s premises is negligent, and the fact that 48 hours intervened between the setting out of the fire and the time it spread to those premises does not in itself necessarily acquit him of negligence.</p> <p>2. Evidence of Value. In an action for damages for the destruction by fire of a barn, granary and personal property, the owner is prima facie qualified to testify to the value of his property.</p> <p>3. Appeal: Variance. Proof that the defendant’s negligence caused the death of plaintiff’s colt is not a material variance from an allegation that by reason of that negligence the plaintiff lost a horse.</p>

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

<p>1. Assault and Battery: Right of Resistance: Liability fob Damages. A person unlawfully assaulted is not bound to retreat to the wall before he may lawfully resist the aggressor with such force as may seem reasonably necessary for his own protection. If, being unlawfully assaulted, he instinctively interposes between himself' and the aggressor an edged tool, which the assailant comes in contact with to his injury, the pérson attacked is not liable in damages therefor.</p> <p>2. Trial: Withdrawal of Issue from Juey. If an affirmative defense is supported by sufficient competent evidence, it is error for the court to withdraw that defense from the jury.</p>

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

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

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

<p>1. Trial: Motion to Direct Verdict: Effect. Where each party to a trial by jury requests the court to direct a verdict in his favor, he waives the right to thereafter insist that any question of fact should have been submitted to the jury.</p> <p>2. Ejectment: Evidence under General Denial. Under a general denial, in an action of ejectment, the defendant may show that a deed in plaintiff’s chain of title was a forgery.</p> <p>3.-: -. The defendant, under such an answer, may prove, by any legal evidence he may have, any fact which will defeat the plaintiff’s action.</p> <p>4. Evidence examined and set out in the opinion held sufficient to sustain the judgment of the trial court.</p>

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

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

<p>1. Deeds: Deed from 'Parent to Child: Presumptions. No presumption arises against the validity of a conveyance from a parent to a child from the mere fact of that relation.</p> <p>2. -: -: --. When a deed is executed without consideration by an aged parent shortly before her death, whereby all of the grantor’s estate is conveyed to one child to the exclusion of her other children, without any apparent reason for so doing, the courts will scrutinize the transaction with care; the presumption is against the validity of the deed.</p> <p>3.-: -: -: Evidence. The evidence is found to be insufficient to overcome the presumption against the validity, of the deed from mother to son under the circumstances surrounding its execution.</p>

<p>1. Taxation: Sale por Taxes: Treasurer’s Return. The return which a county treasurer is required to make to the county clerk of his public sales of real estate for taxes must be certified and signed by him.</p> <p>2.-: -: Notice. The treasurer’s notice of tax sales must contain substantially all of the matters specified in the statute. If it omits the statement that so much of each tract as may be necessary will be sold for the taxes, interest and costs thereon, and that it will be made by the treasurer at public auction on the first Monday of November .next thereafter, the sale made pursuant thereto will be invalid.</p> <p>3.-: Tax Deed: Conclusiveness. Section 221 of the revenue law (Comp. St. 1903, ch. 77, art. I) will not be construed to mean that a tax deed shall be conclusive evidence of all matters not recited in that section.</p> <p>4. Abandonment: Title to Realty. Facts recited in the opinion held not to amount to an abandonment of a legal title in real estate. Whether such title can be lost by abandonment, quaere.</p>

<p>Motion for rehearing of case- reported in 88 Neb. 464.</p>

<p>1. Schools and School Districts: Bonds: Elections: Necessity for Petition. Section 3, subd. XV, ch. 79, Comp. St. 1909, requires that, before an election is called under the preceding section upon the question of issuing bonds of the school district, a- petition must be filed with the school board suggesting the calling of such election, and that such petition must suggest that the bonds be issued for some one or all of the purposes specified in the statute. An election for that purpose called without such petition is invalid and does not authorize the issuing of the bonds.</p> <p>2. -: -: -: Sufficiency of Petition. In such case, if the petition suggests that the bonds be issued “to build a new public school building,” an election called to vote upon the proposition to issue bonds for the purpose of “building and furnishing a new school house” is invalid.</p>

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

<p>Wills: Pkobate: Notice. Section 140, ch. 23, Comp. St. 1909, provides that the notice of the time and place for hearing an application for probating a will shall "be given by personal service on all persons interested, or by publication under an order of such court, in such newspaper printed in this state as the judge shall direct.” This confers the discretion upon the county court to order the notice to be given personally to all persons interested, ' or, instead thereof, that it be given by publication. The fact that the immediate relatives of the- decedent all reside within the county where the application for probate is made will not render bad the service by publication, and the court will have jurisdiction to hear the cause and decide the questions involved in such hearing.</p>

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

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

<p>1. Drainage Districts: Assessment of Benefits: Appeal: Burden of Proof. On the trial of an appeal from the findings and order of the board of a drainage district, organized under the provisions of chapter 161, laws 1905, assessing benefits to land situated within such district, it is not reversible error to instruct the jury that the burden of proof is on the district to show that the lands assessed will be benefited by the construction of the drainage improvement.</p> <p>2. -: -; -; Question for Jurv. Under the provisions of that chapter as it stool prior to the amendments, of 1909, (laws 1909, ch. 147), it was not reversible error to submit the question of the amount of such benefits to a jury.</p> <p>3. Evidence examined, and held sufficient to sustain the judgment.</p>

<p>1. Taxation: Sale lor Taxes. A county treasurer must make return of his public sales of real estate for taxes to the county clerk, as provided by section 205, art. I, c.h- 77, Comp. St. 1903, before he is authorized to sell lands at private tax sale.</p> <p>2.-: -: Notice. The treasurer’s notice of tax sales must contain substantially all of the matters specified in the statute. If it omits the statement that so much of each tract as may be necessary -will be sold for the taxes, interest and costs thereon, or if the amount of the taxes against each tract are incorrectly stated, the sale made pursuant to such defective notice will be invalid.</p> <p>3.-: -: Tax Deed: Conclusiveness. Section 221 of the revenue law (Comp. St. 1903, eh. 77, art. I) will not be construed to mean that a tax deed shall be conclusive evidence of all matters not recited in that section; and, where sufficient competent evidence is produced to overcome the presumptions created by the tax deed, it may be declared void.</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 the legitimate ends and objects of matrimony, may constitute extreme cruelty.” Myers v. Myers, 88 Neb. 656.</p> <p>-, The mere fact that a husband and wife are living 2. apart when false charges of adultery are wantonly made by one spouse against the other does not of itself prevent such charges from constituting extreme cruelty.</p> <p>3. -: -. The fact of separation is relevant and important only as it may aid in determining the question whether such charges caused great mental suffering on the part of the spouse wantonly and falsely accused.</p>

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

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

<p>Eminent Domain: Condemnation Monet: Rights of Devisee and Ex- „ ectjtok. As between tbe devisee of real estate in Nebraska and an executor whose sole warrant of authority is his letters testamentary issued by a court of a sister state, there being no contention that unpaid claims exist against the estate or that the executor was in possession of the real estate, the devisee has the better right to condemnation money in the possession of the county judge.</p>

<p>X. Attorney and Client: Attorney’s Lien. An attorney at law entitled to practice his profession in this state has a charging lien upon money in the hands of an adverse party in an action or proceeding.</p> <p>2. -: Authority oe Attorney: Collection oe Money. The attorney by virtue of his employment, and while that relation exists, has authority to collect and receive money due his client in an action or proceeding in which the attorney rightfully appears, but that authority ceases with the severance of the relation of attorney and client.</p> <p>3. -: Attorney’s Lien: City Warrants. If an attorney at law duly acquires possession of city warrants drawn to the order of his client, he has a charging lien thereon, as well as upon money appropriated by the city for their payment, to satisfy any balance due him from his client for legal services rendered in and about all transactions leading up to the execution of the warrants and for money expended by him for the benefit of his client in such litigation; but, if the attorney is discharged from his employment before the warrants are collected, and both the attorney and the city treasurer are notified of such discharge and the revocation of the attorney’s authority to collect, .the treasurer will pay at his own risk and that of his bondsmen any money in excess of the balance actually due the attorney from his client for such services and money expended.</p>

<p>Judges: Disqualification. An attorney, by presenting a question of law in the district court in one case at the time the identical question is submitted by other counsel in another not involving the first attorney’s client,- does not disqualify himself from sitting in the second case on appeal if he subsequently becomes a member of this court.</p>

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

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

<p>Courts: Jurisdiction: Allowance foe Maintenance of Child. Where the district court grants a divorce to a wife, commits to her the custody of a minor child, and requires the husband to pay a fixed sum for the child’s maintenance during minority, the county court, after the death of the husband, has no authority, in passing on a claim against decedent’s estate for an additional allowance for the same purpose, to increase the amount fixed by the decree of the district court, as long as it remains unchanged.</p>

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

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

<p>1. Sales: False Representations: Remedies. If, to induce a party to purchase what is claimed to be an imported Percheron stallion, representations are made by the vendor of material facts which, if true, would greatly enhance the value of the animal, but which are false and known by the vendor to be false; or, if without knowledge of their falsity the statements are made by the vendor as representations of positive facts, they will, if believed to be true and relied and acted upon by the vendee in making the purchase, to his injury, support an action by the vendee for damages or for a rescission of the contract.</p> <p>2. Fraud: False Representations. “A person -is justified in relying on a representation made to him in all cases where the representation is a positive statement of fact, and where an investigation would be required to discover the truth." Foley v. Soltry, 43 Neb. 133.</p> <p>3. Appeal: Instructions: Review. This court will not search for error in the instructions. It is the duty of counsel who assails them to point out with reasonable particularity the error therein; failing so to do, it will be presumed that none exists.</p>

<p>1. Descent and Distribution: School Lands. The interest of a vendee in possession of school lands under a contract of purchase from the state, part of the purchase price of the land having been paid', at his death, descends to his heirs, and does not pass to his administrator. It is alienable, descendible and devisable in like manner as if it were real estate held by a legal title.</p> <p>2. Appeal: Issues. The supreme court will not consider on appeal issues not tendered by the pleadings.</p> <p>3.-: Theory oe Case. Parties will as a rule be restricted in the supreme court to the theory upon which the cause was tried in the court below.</p> <p>4. Evidence examined and referred to in the opinion, held insufficient to entitle plaintiffs to any of the relief demanded in their petition.</p>

<p>1. Information: Sufficiency. “Where a statute states the eleinentsof a crime, it is generally sufficient, in an information or indictment, to describe such crime in the language of the statute.” Oordson v. State, 77 Neb. 416.</p> <p>2. Criminal law: Instructions: Exceptions. “It has been the settled rule of this court since the decision of MoReady v. Rogers, 1 Neb. 124, that a general exception to a charge to a jury is unavailing unless the entire charge is erroneous.” Redman v. Yoss, 46 Neb. 512.</p>

<p>1. Appeal: Reversal. When the plaintiff is entitled to judgment upon the facts established by the evidence without any substantial conflict, a verdict and judgment for defendant will be reversed upon appeal.</p> <p>2. Brokers: Action fob Commissions: Estoppel. When a broker is duly employed by the owner to assist in exchanging property, and an opportunity is found and exchange made by the joint efforts of the broker and the owner of the property exchanged, the owner will not be permitted to deny that tbe assistance of tbe broker was tbe proximate cause of tbe desired result.</p>

<p>1. Mortgages: Foreclosure: Maturity of Debt. A provision in a mortgage given to secure a promissory note stipulating for the payment of interest semiannually, and that, if the interest is not paid when the same is due, the whole of the debt and interest shall immediately become due and payable and the mortgage may be foreclosed, is permissive merely, and the entire debt will not become due unless the mortgagee elect so to declare by instituting an action on the note or to foreclose. See Lowenstein v. Phelan, 17 Neb. 429.</p> <p>2. Judgment: Validity. A decree quieting title and canceling a mortgage, as barred by the statute of limitations, before the expiration of 10 years after maturity of the debt secured by it, would be erroneous, at least, and, if jurisdiction over the owner of the note and mortgage were not acquired, would be void. Whether the taking of an appeal from such decree would be such an appearance as to confer jurisdiction, provided the petition stated a cause of action, is not decided.</p> <p>3.-: -: Conclusiveness. Assuming that the petition in such case stated a cause of action, and that jurisdiction over the persons of the defendants in the suit was acquired, such decree would not be binding upon the then holder of the note and mortgage, unless he were made a party to the suit and jurisdiction obtained over him. In such case he would not be precluded from bringing an action within the statutory period of limitations to foreclose his mortgage.</p> <p>4. -: -: Burden of Proof. Where such action is brought and proceeds to a decree and issuance of an order of sale, and the sale is enjoined by the owner of the fee, basing his action upon the decree quieting his title and canceling the mortgage, it is incumbent upon him to allege and prove that in such suit the then holder of the note and mortgage was a party defendant over whom jurisdiction was obtained.</p>

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

<p>1. Stipulations. An agreed statement and stipulation of the facts upon which a cause is to be decided should contain nothing but the material facts in issue. More than this is surplusage and redundant.</p> <p>2.-: Exhibits. Where a cause in an original action is submitted upon an agreed stipulation of facts in writing, and the stipulation refers to and embodies certain exhibits by specific reference, and they are presented to the court, explained and their use demonstrated during the argument, they become, and must be treated as a part of the evidence in the case and considered as fully as though the elucidation were embodied in the stipulation.</p> <p>3. Commerce: Interstate and Intrastate. When goods, inclosed in a receptacle or package, are shipped from a point in one state to a point in another, they become and are a part of the interstate commerce of the country and retain that distinctive character until sold or the original package in which they were consigned is broken after they arrive at the point of destination. If the original package is broken by the consignee for the purpose of the sale of the smaller units or packages contained in the original inclosure, the interstate quality of the whole is lost, and the consignment becomes a part of the body of the property of the state and is subject to its laws.</p> <p>4. Habeas Corpus: Burden oe Proof. In an original application for a writ of habeas corpus whereby the plaintiff seeks his discharge from the custody of an officer holding a warrant or commitment regular on its face, it devolves upon the plaintiff to show that his detention is unlawful. Failing to do so, the application will be dismissed and the plaintiff remanded to the custody of the officer holding the authority for his detention.</p>

<p>1. Commerce: Interstate and Intrastate. An original package as governed by interstate commerce law is that which is delivered „ hy the importer to the carrier at the initial point of shipment, and retains its form and contents- until received by the consignee in the same condition as when shipped. If, upon arriving at its destination in a foreign state, the package is broken and its contents, in smaller units, is offered for sale, and enters into the retail commerce of the state, the distinctive quality of interstate commerce is lost, and the goods become at once subject to state laws.</p> <p>2. -: -. The laws of congress governing and controlling interstate commerce can have effect upon property only during the time it retains its distinctive interstate quality, or character, of commerce. When such property is shipped to and enters the body of the property of the state, the original packages being broken and the contents offered and sold to retailers or consumers, its interstate quality is lost and it ceases to be subject to congressional control.</p> <p>3. Food: Pure Food Law: Constitutionality. A law of this state requiring packages containing articles of food to be branded with a statement of the net contents by weight when offered for sale in the retail trade imposes no obligation upon the manufacturer in a foreign state. The requirement operates alone upon the dealer who is selling the product at retail as a part of the body of the property of the state and exclusively under state control.</p> <p>4.-: -: -. The pure food law of this state (Comp. St., 1909, ch. 33) is confined to the regulation of intrastate commerce, and does not in any sense pretend to control interstate commerce. If, however, some of its provisions should be found to encroach upon the regulation of interstate commerce, that fact would not necessarily require the whole act to be declared void.</p>

<p>Error to the- district court for Otoe county: Harvey D. Tiuvis, Judge.</p>

<p>1. Deeds: Validity: Mental Capacity.' In determining the mental capacity of a grantor to execute a deed, if it clearly appears that when the deed was executed the grantor had the capacity to understand what he was doing, knew the nature and extent of his property, what-he had done and what he proposed to do with it, and to decide intelligently whether or not he desired to make the conveyance, it cannot be said that he was incompetent or incapable of executing the instrument.</p> <p>2. -: -: Undue Influence: Parent and Child. The undue influence which will avoid a deed is an unlawful or fraudulent influence which controls the will of the grantor. The affection, confidence and gratitude of a parent to a child which inspires the gift is a natural and lawful influence, and will not render it voidable, unless this influence has been so used as to confuse the judgment and control the will of the donor.</p> <p>3. Evidence examined, and found to require an affirmance of the judgment of the district court.</p>

<p>1. Justice of the Peace: Appeal: Transcript: Amendment. Where an appeal has been taken from a justice court to the district court, and it clearly appears that in preparing the transcript the justice has inadvertently omitted a portion of the proceedings in his court, or has failed to include or mention a paper filed therein, the district court may, in the furtherance of justice, permit the transcript to be amended or the missing paper supplied, and it would be error to refuse such permission.</p> <p>2. -: --: Pleading. In making up the issues in the district court, it is proper for the plaintiff to file a reply denying the allegations of the defendants’ answer, and, if the identity of the cause of action tried in the justice court has been preserved by the petition and answer, the filing of a- reply does not change the issues.</p> <p>3. New Trial, Motion for: Time. The statute requiring a written motion for a new trial to be made at the term at which the verdict was rendered and within three days after its rendition, except for newly discovered evidence, is mandatory, and, if the motion is afterwards made, it is of no avail to the party filing it.</p> <p>4. Appeal: Moíion for New Trial. .Unless a motion for a new trial is filed within three days after the verdict or decision, this court cannot examine any errors which it is alleged occurred at the trial; and in such case the only question which can be considered by this court is whether the pleadings are sufficient to sustain the judgment.</p>

<p>1. Trusts: -Devise of Lands Held in Trust. Where one person buys real estate paying the purchase price thereof, and for convenience the title is taken in the name of another, the person so taking the title will hold the property in trust for the person paying the purchase price; and if the trustee, at the request of the owner, devises the property to another for the same purpose, the trust relation follows the property and the devisee also holds it in trust for such owner.</p> <p>2. -: -: — : Relief in Equity. Where the real estate thus conveyed is not the subject of fraudulent alienation, the fact that the title was taken in the name of another to avoid the payment of a judgment does not estop the owner from maintaining an action in equity to recover the title thereof.</p> <p>3. Evidence examined, and found sufficient to sustain the judgment of the district court.</p>

<p>Appeal: Collateral Evidence. The receipt or rejection of collateral evidence is largely within the discretion of the trial court, and his rulings in that regard will rarely be disturbed.</p>

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

<p>1. Food: Sales: Marking Weight on Packages. A corporation, whose principal business in manufacturing and selling a certain food product in package form is at wholesale, held, not to be exempted from the requirement of the statute as to marking the weight or measure of the net contents of the package on the label by reason of the fact that it also maintains at its packing house a retail store at which it sells packages of the same nature at retail to consumers.</p> <p>2. Constitutional Law: “Pure Food Law.” An act of the legislature which in effect places persons who manufacture and sell, or who sell either at wholesale or retail, certain specified food products in package form, not put up by retailers, in one class, and retailers who put up and sell the same products in package form themselves in another class, and provides that such foods sold in package form, not put up by the retailer, shall bear a printed label showing net weight or measure of the contents, does not deprive one who sells a .“misbranded” package of the equal protection of the laws, and is not violative of the fourteenth amendment to the constitution of the United States.</p>

<p>Food: Pure Food Law: Cottolene. A proviso in a statute is generally intended to except something from its operation which would otherwise he within its provisions. Under the pure food law of 1909, a package of cottolene, if sold for use in Nebraska, must bear a statement on the label of the net weight or measure of the contents exclusive of the container, unless it contains the other brands and marks upon the label provided for in the first or second subdivisions of the proviso to section 8, ch. 33, Comp. St. 1909 (Ann. St. 1909, sec. 9825).</p>

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

<p>1. Vendor and Purchaser: Contract: Title. Ordinarily there is an implied agreement on the part of the vendor in every contract for the sale of land that he will transfer a good title to the vendee, unless the contract relieves the vendor of that obligation.</p> <p>2.-: -: -. A good title is one that can be sold to a reasonably prudent man who might desire the property, or a title that can be mortgaged to a person of reasonable prudence as security for the loan of money.</p> <p>3.-: -: Defective Title. Unreleased and unsatisfied trust deeds executed to secure the payment of a debt constitute such a defect in the title that a vendee will be excused from accepting it, although upon the face of the record the statute of limitations may have barred the creditor or the trustee from foreclosing the deed or from selling the land thereunder.</p> <p>4. -: Defective Title: Recovert of Price. A purchaser of land, so long as the contract remains executory, may as a general rule recover bach the purchase money he has paid thereon, if the vendor’s title be not such as the purchaser is under the contract entitled to demand.</p>

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

<p>Executors and Administrators: Allowance to Attoknets. Attorneys who, under employment by executors of a will, render necessary services beneficial to the testator’s estate in the settlement thereof may, in a proper case, file with the county court an itemized bill for their compensation, and the county court has authority to allow a reasonable amount for that purpose as a claim against the estate, where those in control of it refuse to pay the claim and object to any allowance therefor.</p>

<p>1. Appeal: Striking Paragraph oe Answer. An order striking a paragraph from an answer is not erroneous, where the matter thus eliminated is pleaded in other parts of the same answer.</p> <p>2. -: Instructions: Waiver. On appeal, a defense that the note ' on which the action is based was never delivered is unavailing, where defendant failed to except to an instruction that the delivery is conclusively established by the evidence.</p> <p>3. -: Conflicting Evidence. A fact determined by a jury upon conflicting evidence is conclusive on appeal, unless the finding is manifestly wrong.</p> <p>4. Notes: Consideration. A consideration moving to one of several joint makers of a promissory note is good as to all.</p>

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

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

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

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

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

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

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

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

<p>1. Bailment: Loss by Bailee: Liability. An applicant for license to practice medicine in this state sent his diploma to the board of health with request that a license issue to him. The diploma was received by the secretaries, examined, passed upon favorably, and, as was their custom, placed in a mailing case, properly directed to the applicant, and delivered to the Adams Express Company, one of the leading and responsible express transportation companies in the state, having an office at Lincoln, the point of transmission, and at Superior, the place of delivery. The applicant had given no instructions as to the method of returning the diploma to him, nor had he furnished any postage or other funds to pay for its return. The method of transmission adopted by the secretaries for the return of the diploma to the applicant was the usual and customary method adopted by them for the return of diplomas to applicants for license. The mailing case was received by the applicant at the terminal point named in the directions indorsed thereon, but the diploma was not therein, and was lost. Held, That the selection of the carrier and the delivery of the diploma to it for return was not actionable negligence on the part of the secretaries rendering them personally liable in damages for the loss of the diploma.</p> <p>2. Damages: Instructions: Harmless Error. In an action against an express company for damages for the loss of a medical diploma, the court properly instructed the jury, in substance, that, • If they found by a preponderance of the evidence the diploma was delivered to the express company for transmission and was not delivered to the consignee, their verdict should be for the plaintiff; but, if they did not so find, it should be for the defendants. By another instruction they were informed that, if they found in favor of the plaintiff, their verdict should be for an amount merely nominal, “five (5) cents only.” The jury returned a general verdict in favor of the defendants. Held, That the latter instruction was erroneous, but, as the verdict was in favor of defendants, the erroneous instruction could work no prejudice to plaintiff.</p> <p>3. Evidence: Admissibility. In an action pending against an express .company for the loss of a medical diploma delivered'to it for transmission, one of the attorneys for the defendant company applied to the college which had issued the diploma for a duplicate copy to be furnished the plaintiff. The letter contained statements that the diploma had been lost in transmission, was of some value to its owner, etc. It was offered in evidence by plaintiff as an. admission of the defendant company. Held, That it was properly excluded.</p> <p>4. Witnesses: Impeachment: Collateral Issue. The deposition of a witness offered to disprove a voluntary immaterial collateral statement of another witness in his deposition was properly excluded.</p>

<p>Appeal: Bill of Exceptions: Certification. "The rule is settled that this court will, on its own motion, refuse to consider a document appearing in the record and purporting to be a bill of exceptions when not authenticated as such by the certificate of the clerk of the trial court.” State Bants v. Bradstreet, ante, p. 186.</p>

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

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

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

<p>1. Divorce: Extreme Cruelty: Evidence. Action for divorce from bed and board and separate maintenance upon the ground of extreme cruelty. The prayer of the petition being denied by the district court, plaintiff appeals. The conclusions arrived at from reading the bill of exceptions are set out in the opinion, and it is found that, while the results of plaintiff’s marriage with defendant have been most unfortunate, no sufficient reason is discovered why the decree of the district court dismissing plaintiff’s petition should not be affirmed.</p> <p>2. -: Affirmance. No question of law being involved in the case, the decree of the district court is affirmed upon a review of the established facts.</p>

<p>1. Trial: Motion fob Verdict: Admission. Where upon a jury trial, at the close of plaintiff’s evidence, the defendant moved the court for a directed verdict in his favor, the motion must, for the purpose of a decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted and all proper inferences to be drawn therefrom.</p> <p>2. Husband and Wife: Criminal Conversation: Alienation of Affections: Questions for Jury. In an action of criminal conversation and for damages for the alienation and estrangement of the affections of a wife by a stranger, where the evidence submitted tended to prove improper conduct and undue familiarity between the wife and defendant, the questions of the weight of the testimony of the witnesses and the inferences to be drawn from the evidence are for the determination of the jury.</p> <p>3.-: -: Circumstantial Evidence. The crime of adultery being seldom susceptible of direct proof by eye-witnesses, resort must be had to circumstantial evidence.</p>

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

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

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

<p>Taxation. For syllabus see Bankers Life Ins. Co. v. County Board of Equalization, ante, p. 469.</p>

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

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

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

<p>1. Infants: Contracts: Disaffirmance. When an infant disaffirms a conditional sale contract, the parties stand in the same relation to each other ana to the property sold as they would if it had been a disaffirmance of an ordinary sale. The title to the property bought by the infant remains in the vendor, and ordinarily the right to recover partial payments made, if any, rests with the infant.</p> <p>3.-: -: -. Where an action is brought to recover property sold to an infant, and infancy and partial payment is pleaded, the right to recover the property and the right of the infant to be repaid what he claims he has paid on the purchase price may both be tried in the same action.</p>

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

<p>1. Religious Societies: Government: Review by Courts. “Where a local church or parish is a member of a general organization, having general rules for the government and conduct of all of its adherents, congregations and officers, the final orders and judgments of the general organization through its governing authority, so far as they relate exclusively to church affairs and church government, are binding on the local associations and their members and officers, and courts will not ordinarily review sucb final orders and judgments for the purpose of determining their regularity, or accordance with the discipline and usages of the general organization.” St. Vincent’s Parish v. Murphy, 83 Neb. 630.</p> <p>2.-: Power of Trustees: Excommunicated Priest. The trustees of a religious corporation organized under section 40, ch. 16, Comp. St. 1899, and in conformity with the canons, discipline and faith of the Roman Catholic church, have no authority by virtue of their office to permit an excommunicated priest to occupy the corporation’s church edifice which was consecrated by its founders to religious worship according to the canons and discipline and faith of that church, or to exercise the faculties of a priest therein.</p> <p>3.-: -: Injunction. If a majority of the trustees unite in diverting the temporalities of the corporation from the purposes to which they were devoted by its founders, a minority may maintain an action in the corporate name to enjoin such diversion.</p>

<p>Taxation: Inheritance Tax: Credits of Nonresident. The right to take by will a credit payable in the state of New York, but evidenced by a contract of sale for real estate within Nebraska, executed by the vendor and at all times during his lifetime retained in his possession at his residence in the state of New York, is not, in the absence of extraneous facts, which do not appear in the instant case, subject to an inheritance tax upon the death testate of the vendor.</p>

<p>1. Creditors’ Suit. Where it appears that a judgment creditor has exhausted his legal remedies, a court of equity will aid. him in subjecting the interest of an insolvent debtor in a corporation to the satisfaction of his judgment.</p> <p>2.-: Reversal. The evidence in this case commented upon in the opinion, and held not to sustain the judgment of the district court.</p>

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

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

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

<p>Limitation of Actions: Mortgages: Acknowledgment of Debt. Under section 22 of the code, signed and delivered letters written by a purchaser of mortgaged land to the holder of the mortgage arrest the running of the statute of limitations against foreclosure, where the letters, when reasonably and properly construed, contain an acknowledgment of the mortgage and of the existing indebtedness; no technical phrase or particular form of expression being required.</p>

<p>1. Assault and Battery: Justification: Directing Verdict. Where justification is the only defense to a civil suit for assault and battery, the trial court should direct a verdict in favor of plaintiff, if the evidence is insufficient to sustain a judgment in favor of defendant on that issue.</p> <p>2. Chattel Mortgages: Unauthorized Seizure of Chattels. An unreasonable and arbitrary seizure of mortgaged chattels without cause for the purpose of foreclosing a mortgage securing an unmatured note cannot be justified under a clause authorizing mortgagee to take possession of the property, if he “should feel unsafe or insecure.”</p> <p>3. Action: Motive. Where plaintiff has stated a valid cause of action for damages, bis motive in bringing the suit is, at the trial, immaterial.</p> <p>4. Damages: Question fob Jury. Where mental anguish, personal injuries and physical suffering are considered in determining compensatory damages, no method of exact computation can be devised, and the amount of the recovery must generally be left to the sound discretion of the jury.</p> <p>5. Appeal: Conflicting Evidence. A jury’s determination of a fact upon conflicting evidence will not be disturbed unless manifestly wrong.</p>

<p>1. Divorce: Extreme Cruelty: Condonation. Condonation, is forgiveness for the past upon condition that the wrongs shall not be repeated. It is dependent upon future good conduct, and the repetition of the offense revives the wrong condoned; and con-donation of extreme cruelty may be avoided by abusive language and the use of opprobrious epithets.</p> <p>2.-: -: ' — ;-. A promise of forgiveness for past wrongs is not, alone, sufficient to constitute condonation. To have that effect such promise must be followed by a restoration of the offending party to all marital rights.</p> <p>3. -: -: -: Evidence. Evidence examined and referred to in the opinion held insufficient to establish a condonation by plaintiff of the cruelty alleged in her petition.</p> <p>4.--: Insanity: Pleading. Insanity, to be available as a defense in a divorce suit, must be pleaded.</p> <p>5. -: Extkeme Cktjelty: Evidence. Evidence examined and referred to in the opinion held sufficient to support the decree of divorce on the ground of extreme cruelty.</p> <p>6. -: Alimony: Evidence. Evidence examined and referred to in the opinion held sufficient to sustain the decree on the question of alimony.</p>

<p>1. Vendor and Purchaser: Joint Purchasers. One who furnishes money to a purchaser of real estate under an agreement that he shall receive as his compensation therefor one-half of the profit which the' purchaser may realize upon such purchase, does not, by reason of that fact alone, become a joint purchaser of such property.</p> <p>2. -: -. In order to constitute such person a joint purchaser, it must further appear that he is, in fact, to become invested with an interest in the title and actual ownership of such real estate.</p> <p>3. Trial: Special Findings. A special finding by a jury, though sustained by the evidence, must be disregarded when the fact established by it is irrelevant to the issues tendered by the pleadings and insisted upon by the adverse party during the trial.</p> <p>4.-: Jury: Violation oe Instructions. It is the duty of a jury to find a verdict according to the law as given in the instructions of the court; and when they clearly violate this duty the court should set aside the verdict.</p>

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

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

<p>1. Parole: Revocation. Under the provisions of section 570 of the criminal code, a parole granted by the governor of the state to a convict in the state penitentiary may be revoked by the governor at any time, without notice or hearing, for any reason which he may deem sufficient.</p> <p>2. Constitutional Law: Revocation of Parole: Review by the Courts. Said section of the code having conferred upon the governor full power to retake and reimprison any convict so upon parole, his act" of revocation is the exercise of a sole discretion, which is not reviewable by the courts.</p>

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

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

<p>Appeal from tbe 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. Appeal. No appeal is allowed from findings of fact or conclusions of law. A party may appeal within six months after the entry of final judgment or overruling a motion for new trial.</p> <p>Corporations: Liability of Stockholders. Under section 136, ch. 16, Comp. St. 1891, the liability of stockholders upon the default of the corporation is limited to their unpaid subscriptions to capital stock, together with the amount of capital stock owned by them. This applies also to liability accruing before the amendment of 1891.</p> <p>3.-: -. In an action in equity to determine such liability of stockholders which accrued before the amendment of 1891 (laws 1891, ch. 13), the court entered a decree against them for an amount less than their statutory liability, and, after stating findings of fact, stated that the stockholders are jointly and severally liable for the full amount of judgments that had before that time been obtained against the corporation. Held, That this, statement was merely a conclusion of law and erroneous, and that a judgment subsequently entered for a greater .amount than the amended statute allows was also erroneous.</p>

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

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

<p>Mechanics’ Liens: Suit to Cancel: Evidence. In an action to cancel a record of the filing of a mechanic’s lien for the construction of a building upon real estate, it was alleged that the lienor had been fully paid, and there was nothing due, and the lien cast a cloud on plaintiffs’ title. In the answer the defendant claimed that the lien was valid, that the amount named in the statement for the lien was due, and sought a foreclosure thereof. The evidence is examined, the substance thereof is set out in the opinion, and it is held that it is not shown that the finding of the district court in favor of the plaintiffs is not sustained by the evidence.</p>

Original application in the nature of quo warranto to determine the right of respondent to the office of state railway commissioner.

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

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

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

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

<p>1. Execution: Sale: Waiver oe Irregularities. A purchaser of real estate at an execution sale, who after confirmation accepts the sheriff’s deed, takes possession and afterwards conveys the same by warranty deed to a third person, thereby waives all errors and irregularities in the making of- the sale and in the order of confirmation.</p> <p>2.-: -: Distribution of Surplus. Where after confirmation of an execution sale of real estate it appeared that the bid which was accepted was made by the execution creditor, who also held a decree of foreclosure of mortgage against the property; that the execution debtor was insolvent; that the appraisement was of the gross value of the property without deducting liens; • that the bid was made with the understanding of both sheriff and purchaser that the excess of the bid should be applied on the foreclosure decree, and no money was paid to the sheriff; a motion to require the officer to pay the amount of the bid over the execution debt into court for the benefit of the debtor should not be sustained, or, if sustained, the order not enforced until a reasonable opportunity is afforded the plaintiff by proper pleadings to set out the facts and apply for equitable relief.</p>

<p>1. Evidence: Direct and Circumstantial. The competent relevant testimony of unimpeached witnesses should not be held to be contradicted by inferences from circumstantial evidence, unless those circumstances and the natural inferences to be deduced therefrom cannot in reason be reconciled with the conclusion that the direct evidence is true.</p> <p>2.-. The evidence in this case is commented upon in the opinion, and held insufficient to sustain the verdict of the jury.</p>

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

<p>1. Bigamy: Intent. In a trial for bigamy under a statute which does not make intent an element of the crime, it is no defense for accused to prove he acted in good faith on advice of counsel that a former marriage to his cousin was void, and that a deputy county attorney threatened him with prosecution for living with her, where such former marriage is valid.</p> <p>2. Criminal Law: Appeal: Admission oe Evidence. The admission of evidence not prejudicial to accused is not a ground of reversal.</p>

<p>Evidence examined and set' out in the opinion held insufficient to sustain the verdict of the jury.</p>

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

<p>1. Criminal Law: Admission of Evidence: Harmless Error. “The reception of incompetent evidence tending to establish a certain fact is not prejudicial error when the same fact is conclusively established by competent evidence.” Fike v. Ott, 76 Neb. 439.</p> <p>2.-: Witnesses: Examination: Discretion of Court. “How far, if at all, á party shall be permitted to cross-examine, or put leading questions- to his own witnesses, where they appear to be hostile or unwilling, is in the discretion of the trial court, and its rulings in such matters will not be disturbed except for manifest abuse of discretion.” Sackney v. Raymond Bros. Clarke Co., 68 Neb. 624.</p> <p>3.-: Evidence. In a prosecution for gambling, where the case for the state rests largely upon the testimony of witnesses who have been guilty of a like offense, and the court properly instructs the jury as to the weight to be given the testimony of such witnesses, and the testimony given by such witnesses is sufficient to sustain the verdict of tbe jury rendered thereon, the verdict will not ordinarily be disturbed in this court, even though such testimony be contradicted by the accused.</p>

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

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

<p>Original application for a writ of mandamus to compel respondent to fix tlie amount of a supersedeas bond.</p>

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

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

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

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

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

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

<p>Former opinion modified, and the plaintiff awarded judgment for $2,500, with interest thereon at 7 per cent, from February 18, 1902, on condition of filing a remittitur.</p>

<p>1. Adverse Possession: Entry by Permission. Where the possession of real estate is the result of an entry upon the premises by permission of the legal owner, such possession will not become adverse until some act is committed by the occupant rendering it so, and notice thereof is brought home to the owner of the legal title.</p> <p>2. -: Entry. Under Contract to Purchase. One who enters into the occupancy of real estate under an oral contract to purchase it cannot afterwards obtain title thereto by adverse possession without showing that his occupancy had assumed an adverse character, and continued as such during the statutory period.</p>

<p>1. Embezzlement: Defenses: Guardian and Ward. A guardian of the person and estate of a minor, who converts the money and estate of his ward to his own use, thereby violates the provision of section 121 of the criminal code; and the fact that he has failed to report to or make final settlement in the county court, after being served with a citation to make such settlement, is not a bar to a prosecution for the crime of embezzlement as defined in that section.</p> <p>2. -: Conviction: Sufficiency of Evidence. The voluntary admissions of a guardian that he has used the money belonging to his ward as his own, has expended it for his own- private purposes, and is unable to replace or repay it, are admissible in evidence against him, and if supported by other competent evidence are sufficient-to sustain his conviction of the crime of embezzlement.</p> <p>3. -: Pleading and Proof: Guardian and Ward. Under an information charging a guardian with having embezzled a certain amount of money belonging to his ward, without describing it as being a part of any particular or specific fund, proof that the defendant has converted any money to his own use belonging to the ward will sustain the charge as laid.</p> <p>4. -: Defenses: Guardian and Ward. When a guardian has converted his ward’s money to his own use, the fact that he would be justly entitled to .a small portion of the money so converted as compensation for his services is not a complete defense to a prosecution for embezzlement.</p>

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

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

<p>Waters: Drainage of Surface Waters: Injunction. A court of equity will not enjoin an upper proprietor from draining surface water from his land through tile drains in the natural course of drainage into the natural channels which nature has provided, and onto the land of a lower proprietor.</p>

<p>1. Waters: Obstruction of Drainage. A lower proprietor may not unnecessarily obstruct a natural drain upon his own premises without the upper proprietor’s consent, so as to collect surface water and cast it back upon his neighbor’s farm where it would not appear but for that obstruction, and to the injury of his neighbor’s crops and land.</p> <p>2. -: -. Section 1, art. Ill, ch. 89, Comp. St. 1909, which authorizes a proprietor to drain his land by tile or open ditches so constructed as to discharge water into any depression or draw upon his own premises, does not authorize him to dam up and permanently obstruct a natural drain, so as to prevent assembled surface water from flowing therein in the natural course of drainage, and so as to injure his neighbor’s crops and land.</p>

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

<p>1. Mortgages: Execution oe Second Mortgage to Correct Mistake. Where parties to a recorded mortgage execute a second one on the same realty for the same amount to secure the same debt for the sole purpose of correcting a mistake in the first, and so express themselves in the body of the second instrument, its effect, when recorded, is to supersede the first, and the two constitute one mortgage, nothing having intervened to impair mortgagee’s security.</p> <p>2. Specific Performance: Sale oe Land: Nonpereormance oe Contract. Where failure to convey land under an executory contract of sale is due solely to the refusal of the purchaser to pay or tender the stipulated purchase price according to the terms of his agreement, he is not entitled to specific performance or. to damages for breach of contract.</p>

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

<p>Acknowledgement, Authority to Take. M., being indebted to various banks and individuals who held chattel mortgages upon all of his personal property, sold his homestead, consisting of 160 acres of land, to G., and, his wife joining, executed a deed therefor to G. At the time of negotiating the sale, and prior to the execution of the deed, M. directed G. to pay the consideration for such sale, less certain incumbrances upon the land, to the creditors of M. One of the creditors of M. was D., who, as a notary public, took the acknowledgment of M. and wife to their</p> <p>deed to G. D. was in no manner instrumental in causing the sale of the land or the giving of such oral directions by M. to G., but immediately prior to taking such acknowledgment D. was informed of such sale and oral directions. After the execution of the deed, G. paid the full amount of the net consideration of his purchase of the homestead to such creditors of M., including D. Held, That D. was not disqualified to act as notary in taking such acknowledgment.</p>

<p>Appeal from the district court for Douglas county: Howard Kennedy, Judge.</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. Railroads: Crossings: Powers of Railway Commission. The power to open streets and to regulate and control railway crossings over the same in incorporated cities and villages is given by statute to the municipal authorities. The state railway commission has general jurisdiction of such matters outside of cities and villages. - t</p> <p>2. State Railway Commission: Powers. Whether the state railway commission has any duty to perform in case the proper municipal authorities wilfully refuse to act in regulating railway crossings of streets in cities and villages, or has any supervising power of such crossings to safeguard the passengers and employees on trains, is not involved in this case, and is not decided.</p> <p>3. Former decision adhered to.</p>