Volume 90 — Nebraska Reports

<p>1. Mortgages: Conditions: Validity. “A stipulation in a mortgage authorizing the mortgagee to accelerate the maturity of the mortgage debt, if the taxes on the mortgaged premises are not paid at or before the time they become delinquent, is not forbidden by statute, nor contrary to public policy, and may be enforced.” Plummer v. Parle, 62 Neb. 665.</p> <p>2. -: Default: Rights of Mortgagee. “And the payment of such delinquent taxes after the commencement of an action to foreclose the mortgage does not deprive the mortgagee of the right secured by the exercise of. his option.” Plummer v. Parle, 62 Neb. 665.</p>

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

<p>1. Injunction: Municipal Corporations: Interference with Corporate Property. Where a city by the affirmative acts of its officers and agents has for a long series of years authorized and acquiesced in the expenditure of large sums of money and in the acquisition of valuable property by a corporation in establishing and conducting a business enterprise under a claim or color of right and contract to and with persons, companies and corporations to furnish them with valuable and indispensable services to enable them to carry on their business enterprises therein, a court of equity will restrain the city authorities from ousting the corporation by destroying its property and business without compensation.</p> <p>2. Evidence examined and found to require a modification and affirmance of the judgment of the district court.</p>

<p>Appeal from the district court for Antelope county: Anson A. Welch, 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>Appeal from the district court for Adams county:. Harry S. Du ¡sigan, Judge.</p>

<p>1. Appeal: Petition: Sufficiency: Conclusiveness of Former Decision. “A decision of this court holding that a petition states a cause of action is an adjudication that the facts pleaded will, if admitted or proved, entitle the plaintiff to the relief demanded.” Smith v. Neufeld, 61 Neb. 699.</p> <p>2. -: Variance. “A judgment will not be reversed for a variance between plaintiff’s allegations and his proof, unless it is clearly shown to be material and that tbe defendant has' been misled thereby to his prejudice in making his defense.” Westing v. Chicago, B. & Q. B. Co., 87 Neb. 655.</p> <p>3. -: Exclusion of Evidence. Where excluded evidence is not material, unless other proof is made, and no evidence is received or offered to establish that proof, such exclusion will not justify • reversing a judgment of the district court.</p>

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

<p>1. Counties and County Officers: County Treasurer: Liability on Bond. A county treasurer who receives money or anything of value in consideration for the use of the county funds is liable upon his bond for that profit. '</p> <p>2___; -: Action on Bond: Petition: Suottciency. In an action upon a county treasurer’s official bond, a petition states facts sufficient to constitute a cause of action if the pleading, considered as a whole, in substance charges that subsequent to the enactment of chapter 50, laws 1891, the treasurer received interest upon county funds deposited by him in various bank», and did not account therefor.</p>

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

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

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

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

<p>1. Trial: Directing Verdict. Where the evidence is sufficient to sustain a verdict for plaintiff, but would not support a finding for the defendant, it is the duty of the trial court to relieve the case of all uncertainty by directing a verdict for the plaintiff.</p> <p>2. Principal and Surety: Surety Company: Liability ror Premiums. Evidence examined and referred to in the opinion held not sufficient to warrant the submission of the case to the jury.</p>

<p>1. Information: Sufficiency. An information is fatally defective if it charges the commission of the offense as subsequent to the date upon which the information is filed, or on an otherwise impossible date.</p> <p>2. Criminal Law: Information: Amendment: Trial. And in such a case it is error for the trial court, after permitting an amendment curing such defect, to require the accused, over his objection, to immediately proceed with the trial, without arraignment under and plea to the only information filed which stated an offense, without giving him the statutory time in which to plead thereto, and before a jury which had been impaneled under a void information.</p> <p>3. -: Former Jeopardy. ■ Where one accused of a felony is put upon trial under an information void upon its face, and, after trial begun, the information is amended and the trial proceeded with, held, that the accused is not thereby placed in jeopardy a second time.</p> <p>4. -: Private Counsel. Under the provisions of section 20, ch. 7, Comp. St. 1911, private counsel can only be permitted to assist in the prosecution of a person charged with the crime of felony, when procured by the county attorney, under the direction of the district court.</p> <p>5. -: -. And an order by the district court, at the opening of the trial, that an attorney appearing as private prosecutor, under the employment of outside parties, is “permitted” to assist in the prosecution, is not a compliance with the statutory provision.</p> <p>G.--:--. And when timely objection is made by the accused to the participation of such private prosecutor in the prosecution of the case, it is error to overrule such objection.</p> <p>7. -: Irrelevant Evidence. An accused in a criminal prosecution is entitled to a trial upon competent, relevant evidence; evidence wbieb at least tends to establish bis guilt or innocence; and evidence wbieb bas no sucb tendency, but which, if effective at all, could only serve -to excite the minds and inflame the passions of the jury, should not be admitted.</p>

<p>1. Judgment: Vacation: Perjury. To require vacation of a judgment because of perjury on the part of the one obtaining it, it must be shown by clear and satisfactory evidence that the alleged false testimony was wilfully and purposely given; that it was material to the issue being tried, and was not merely cumulative, but probably controlled the result.</p> <p>2. -: -: Evidence. Evidence found to be insufficient to require the vacation of the judgment complained of.</p>

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

<p>1. Accord and Satisfaction: Pleading. “To a petition upon a cause of action not controverted, where there is attempted to be pleaded an accord and satisfaction, the plea is bad when the performance necessary to constitute the satisfaction is not alleged.” Goble v. American Nat. Bank, 46 Neb. 891.</p> <p>2. Evidence examined, and it is found that an accord and satisfaction is not proved.</p>

<p>School Districts: Change oe Boundaries: Appeal. A petition was presented to a board consisting of the county clerk, treasurer and superintendent, under the provisions of section 11503, Ann. St. 1909, asking that certain land be detached from one school district and attached to another. The board found the petition “correct,” and entered a “request that the change in the district boundaries be made as asked for in petition,” but took no action making the change, the district boundaries remaining as they then existed. Meld, That, as there was no final order making the change in the boundary lines, there was nothing which could be reviewed on appellate proceedings.</p>

<p>1. Sales: Evidence. Evidence examined, and found sufficient to sustain the judgment of the district court.</p> <p>2. -: Instructions. Instructions considered and approved.</p> <p>3. Trial: Directing Verdict. Where the plaintiff’s evidence in an action at law tends to establish every fact which he is required to prove to entitle him to a verdict, and reasonable men might differ, upon a consideration of all of the evidence, as to whether all of the necessary facts were established, the trial court should refuse to direct a verdict for the defendant.</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.” Treriholm v. Kloepper, 88 Neb. 236.</p> <p>2. Trial: Instructions. The court should refuse to give an instruction upon the theory of a party to a suit, where such theory is neither admitted by the litigants nor supported by any competent evidence.</p>

<p>1. Landlord and Tenant: Lease: Breach oe Covenant: Damages. The measure of damages for a breach of covenant in a lease to pul. in possession is the difference between the rental value of the premises and the rent reserved in the lease. The lessee may also recover such special damages as he pleads and proves to have necessarily resulted from the breach of the agreement.</p> <p>2._; -: -: -. A leased certain premises to B, who took possession. Afterwards he leased the same premises to G for the same term. G attempted to take possession, but failed. B brought an action for damages against C based upon O’s acts in attempting to take possession, the nature of which is not disclosed, and recovered a judgment. A was-notified by C of the. pendency of this suit and reguested to assist. Held, That the judgment in and attorney’s fees, costs and loss of time of C in defending that action are not proper elements of damage in an action against A on the covenants in the lease to put in possession and for guiet enjoyment.</p>

<p>1. Pleading: Construction. Id an action to recover a money judgment, the pleadings should be liberally construed in the interest of justice.</p> <p>2. Sales: Breach ox Contract: Pleading. A petition to recover for the buyer’s breach of an executory contract of sale will not he held had on general demurrer because the pleader did not use the words “damages” or “damaged.”</p> <p>3. -: Nonaccepxance: Damages. “Where a buyer wrongfully neglects or refuses to accept and pay for goods under an executory contract for sale, the seller may maintain an action against him for damages, and the measure of damages is the loss directly and naturally resulting in the ordinary course of events from the breach of the contract. Ordinarily it is the difference he tween the contract price and the market price at the time and place where the goods ought to have been accepted.” Trinidad Asphalt Mfg. Co. v. Buokstaff Bros. Mfg. Co., 86 Neb. 623.</p>

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

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

<p>Insurance: Benefit Insurance: Engaging in Prohibited Occupation: Waiver. Where a member of a fraternal beneficiary association forfeits his right to participate in the benefit funds of' the fraternity by engaging in a prohibited occupation, assurer does not assume the hazards thereof by accepting dues upon the' condition that the insurance, if restored, shall extend only fo the risks originally assumed.</p>

<p>1. Waters: Irrigation Ditches: Right to Construct. In a suit to enjoin proceedings instituted by one landowner to construct a ditch for irrigation purposes across the lands of an adjoining owner, which are already traversed by another ditch, the question is not whether the first ditch is then in a sufficient state of repair or in a condition to answer the purpose for which the second ditch is desired or intended; the question is: Can the first ditch be made to answer such purpose? If so, no right exists to construct the second ditch.</p> <p>2.-: -: -. Nor, in such a case, can any such right be given by the state board of irrigation, or be acquired in any other manner than that pointed out in section 3, art. I, ch. 93a, Comp. St. 1909, viz., by the written consent and agreement of the owner of the land.</p> <p>3.-: -: Injunction: Burden of Proof. Where A institutes proceedings to condemn the lands of B for the purpose of ■ constructing an irrigation ditch over lands of B, which are already traversed by a prior ditch which has been extended to the line of A’s land, injunction is the proper remedy for B; and in such a suit the burden is upon A to show that the first ditch cannot be made to answer the purpose for which the second ditch is desired or intended.</p>

<p>1. Appeal: Reversal. A verdict so clearly wrong as to induce the belief on the part of the reviewing court that it must have been found -through passion, prejudice, mistake, or some means not apparent in the record, will be set aside and a new trial awarded.</p> <p>2. Master and Servant: Injury: Evidence. Evidence examined and discussed in the opinion held insufficient to sustain the judgment.</p>

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

<p>1. Appeal: Abstract. Under the statute of 1911 relating to abstracts in tbis court (code, sec. 675f) and rules 16 and 20 (89 Neb. vii), either party may abstract a cause docketed in tbis court on or before April 7, 1911, and if sueb abstract “is incomplete or inaccurate in any substantial part” tbe opposite party may file a further abstract making -necessary corrections or additions. Tbe abstract filed “will be taken to be accurate and sufficient for a full understanding of tbe questions presented for decision,” unless a further abstract is filed.</p> <p>2. Carriers: Injury to Live Stock: Evidence. Evidence examined and found to support the verdiet.</p>

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

<p>1. Divorce: Dismissal. In an action for a divorce, where an answer and cross-petition of recrimination is filed by which a divorce is sought by the defendant, if it be shown by the evidence that neither party is blameless, and the decree of the district court denied a divorce to either, dismissing both the petition and cross-petition, the decree will to that extent be affirmed.</p> <p>2.-: Decree oe Separation. In an action by the wife for an absolute decree of divorce, in which the defendant presents a cross-petition seeking a similar decree, the question as to whether such decree should be granted to either party, or a decree from bed and board granted to the wife, requires the exercise of the discretion of the court; and, if the case demands it, a decree of divorce from bed and board, but without dissolving the marriage relation, will be granted to the wife, the evidence showing her to be the less guilty of the two.</p> <p>3.-: -: Maintenance. In such case, when property has been accumulated by the joint labor and frugality of both, but is all held by the husband, a proper provision will be made for the maintenance of the wife.</p>

<p>Insurance: Foreign Companies: Filing Statements. Insurance companies are not included in the title of article II, ch. 91a, Comp. St. 1911, and are not required to comply with the requirements of that act by filing in the office of the attorney general the statement described therein.</p>

<p>Deeds: Delivery. Tire delivery of a deed by tbe grantor to a third person to be delivered to the grantee will be equivalent to a delivery to the grantee, if the existing equities. required such delivery and it is apparent that the grantor so intended it.</p>

<p>Guardian and 'W.ard: Sale of Land: Ratification. A final settlement between a guardian and his ward, after the ward has attended his majority, in the absence of fraud or misrepresentation, if made in a proper court, after investigation, and-with knowledge on the part of the ward that a portion of the distributive share which he receives of his father’s estate is the proceeds of a sale of his land, will amount to a ratification and affirmance of such sale, and the ward is thereby estopped to question its validity. Borcher v. McGuire, 85 Neb. 646.</p>

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

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

<p>1. Appeal: Instructions. It is not reversible error to give to the jury an unnecessary instruction, which is a correct statement of a proposition of law, unless the complaining party appears to have been prejudiced thereby.</p> <p>2. Trial: Refusal of Instructions. Where the district court has fully and fairly instructed the jury upon a particular point, it is not error to refuse to give further instructions thereon.</p> <p>3. Assault and Battery: Exclusion on? Evidence. Assignment of error for the exclusion of certain evidence commented- on, and found to be without merit.</p> <p>4. -: Damases. In an action for damages for assault and battery, where the testimony was conflicting as to the nature and extent of the plaintiff’s injuries, a judgment should not be held excessive if the record contains substantial evidence supporting it.</p>

<p>Api'eal from the district court for Cuming county: Gux T. Graves, Judge.</p>

<p>1. Pleading: Answer: Waiver oe Demurrer. By answering to the merits, a defendant waives his right to demur to the plaintiff’s petition, and that part of his answer which in form amounts to a general demurrer will be treated as surplusage.</p> <p>2. Taxation: Foreclosure oe Lien: Answer: Demurrer. Where a defendant seeks to defeat the foreclosure of a tax lien on the ground that the real estate in question consisted of two separate and distinct tracts which were the property of different owners, and were assessed and taxed as one tract, if his answer fails to clearly set forth facts sufficient to warrant such a conclusion, and contains no definite description of each separate tract, it is vulnerable to a general demurrer.</p> <p>3.-: -: -. An allegation in an answer that defendant has at all times been ready and willing to pay his proportion of the tax, but has been unable to agree with another alleged owner as to the amount he should be required to pay, does not constitute a defense to an action to foreclose a tax lien.</p>

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

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

<p>1. Highways: Law of the Road. Prior to the enactment of section 147, ch. 78, Comp. St. 1911, the rule as to the rights of persons driving in the same direction in a public road or street, and seeking to pass each other, was that ordinarily it is the duty of each driver to keep the proper side of the road, but this is not absolute. He is not bound to keep his side, but if he does not do so he must use more care and keep a better lookout to avoid collision than would be necessary were he on the proper side.</p> <p>2. -: -. In a narrow street, he must not unnecessarily block the way or crowd other travelers to one side, and he must use the highway .in such a manner as not unreasonably to deprive other travelers of their equal right to the use of the street.</p> <p>3. -: -: Nesliqence: Questions eor Juby. These rules, however, are subject to exception. It is impossible to lay down a hard and fast rule applicable to all situations which may arise in the streets of a city, and, even though a deviation from the rule of the road has taken place, the question whether the defendant or his servants have been guilty of negligence, or the plaintiff guilty of contributory negligence, is ordinarily one for the jury.</p>

<p>1. Parties. Persons not jointly liable to the plaintiff, or who do not claim some right in the subject matter of the action, may not, over their objections, lawfully be joined as defendants.</p> <p>2. Principal and Agent: Authority of Agent. “The apparent authority of an agent which will bind his principal is such authority as the agent appears to have by reason of the actual authority which he has.” Creighton v. Finlayson, 46 Neb. 457.</p> <p>3. -: -. “Ostensible authority to act as agent may be conferred if the party to be charged as principal affirmatively or intentionally, or by lack of ordinary care, causes or allows third persons to trust and act upon such apparent agency.” Thomson v. Bhelton, 49 Neb. 644.</p> <p>4.-: -. Where a wholesale dealer in plumbing supplies, furnaces and water plants knows that one of its salesmen has, upon a promise of compensation to be paid, solicited retail merchants in another city to secure customers for it, and, in response to a letter from them to the effect that the time is ripe to get hold of some business and to send a salesman, sends an employee who assumes in its name to make contracts with householders for the installation of heating plants and water plants, and agrees for his principal to pay the local merchants for material furnished and money advanced while the plants are being installed and to pay a commission, and before the work is completed the wholesale merchant is told the facts about the contracts, and it makes no objection thereto, but sends mechanics to install the plumbing and furnaces, and avails itself of the services rendered and money furnished by the retail merchants, it will be held to have at least granted the agent ostensible authority to make the contracts.</p> <p>5. Trover: Transactions with Agents. In such a case the principal cannot maintain an action in conversion against the householders or the retail merchants.</p> <p>6. Principal and Agent: Unauthorized Acts of Agents: Liability. If, as a matter of fact, the agent was not authorized to make the contracts, and, because of his assumption of power to do so, his principal is damaged, he will be liable in damages to. it.</p> <p>7. --: Action: Parties. But the purchasers and the retail merchants cannot, over their objections, be sued jointly with the agent because of the transactions.</p>

<p>1. Specific Performance: Agreement to Devise: Evidence. Clear, direct and uncontradieted testimony given by a disinterested witness that a woman, having no lineal descendants, orally promised her stepson that if he would remain on her farm, live in her house during her natural life, and treat her as a son should treat his mother, he should have the farm at her death, corroborated by the evidence of disinterested witnesses concerning her declaration to the effect that her stepson had an interest in the farm and would have it after her death, if believed by the court, will sustain a finding that the contract was made.</p> <p>2. Statute of Frauds: Part Performance. Acts of performance relied on to remove the bar of the statute of frauds to an oral contract to transfer the title to real estate must be unequivocal, and of such a nature that, if stated, an inference will reasonably arise that an agreement of some nature existed between the parties with reference to the real estate.</p> <p>3. Specific Performance: Remedies. If the acts of performance relate to service of such character that their value .cannot be estimated by a pecuniary standard, the claimant does not have an adequate remedy in pressing a demand for a money judgment for a breach of the contract.</p>

<p>1. Usury: Notes: Attorney’s Fee. A provision in a promissory note, executed subsequent to June 1, 1879, that the maker will pay the plaintiff an attorney’s fee if suit be instituted upon the note, is invalid and will not render the instrument usurious.</p> <p>2. -: --: Set?arate Notes eor Interest. Separate notes, . executed for past due interest upon a promissory note, will not taint the original contract with usury.</p>

<p>Corporations: Liability eoe Acts of Agents. Where a corporation accepts and retains the fruits of a transaction induced by the fraudulent representations of its agent, made by him while acting within the scope of his authority, it is liable to' the party injured thereby.</p>

<p>Taxation: Liquor Licenses. The privilege granted a licensee to sell intoxicating liquors is not subject to assessment for taxation under the provisions of chapter 77, Comp. St. 1911, which in substance provide for ad valorem, taxation.</p>

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

<p>1. Homicide: Information: Requisites. In charging murder while the accused is attempting to perpetrate a robbery, it is not necessary to allege that the act was committed deliberately and with premeditation.</p> <p>2. -: -: Proof. These allegations not being essential in stating the offense, if made, may be rejected as surplusage, and need not be proved separate and apart from proof of the killing while the accused is in the perpetration of the robbery.</p> <p>3. -: Evidence. In the case at bar, since the jury might well find from the evidence beyond all reasonable doubt that the accused planned to waylay, assault and rob two men, and did carry, their plan into execution by assaulting the men, robbing one of them and beating the other so that he died, the triers of fact might logically find that the last described victim was assaulted with the intent on the part of the accused to rob him, although they denied the intent and there is no direct evidence that his person was searched or any property taken therefrom.</p> <p>4. -: Instructions. In that state of the proof, the court having instructed the jury that the accused were presumed to be innocent, they were not entitled to a further instruction that the presumption is that no such intent existed and no attempt was made.</p> <p>5. Criminal Law: Instructions: Credibility of Witnesses, The rule announced in Preuit v. People, 5 Neb.' 377, that “where informers, detectives, or other persons employed to hunt up testimony against the accused are called to testify against him, he is entitled to an instruction to the jury that in weighing their testimony greater care should be exercised than in the case of witnesses who are wholly - disinterested,” will not ordinarily apply to a county attorney, a sheriff, or to his deputy.</p>

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

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

<p>1. Municipal Corporations: Annexation oe Territory. Section 8977, Ann. St. 1909, construed, and held broad enough to permit a village located upon the border of one county, in a proper case, to annex contiguous territory situated in an adjacent county.</p> <p>2. --: -: Burden oe Prooe. In an action to annex additional territory to a village, the burden is upon the village to establish by sufficient averments and evidence that the .territory sought to be' annexed will be benefited by the annexation, or that justice and equity require that such territory be annexed.</p> <p>3. Evidence examined and set out in the opinion held not sufficient to sustain the decree.</p>

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

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

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

<p>Error to the district court for Lancaster county: Edward J. Cornish, Judge. Opinion on application for conditional order of revivor.</p>

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

<p>1. Intoxicating Liquors: Licenses: Applicants. A license to deal in intoxicating liquors is in the nature of a personal trust, and if it be shown that the applicant for such license'has violated the law by engaging in the sale of liquors without a license therefor, and has also permitted others to carry on the business in his name, but in which he had no interest, although he may have a license, he is not a proper person to whom a license should be granted.</p> <p>2. -: - — : Transfer. A village board has no authority to permit the transfer of a license to sell intoxicating liquors.</p>

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

<p>1. Appeal: Presumptions. In the absence of -a bill of exceptions, it will be presumed that an issue of fact raised by the pleadings received support from the evidence, and that such issue was correctly determined.</p> <p>2. Mechanics’ Liens: Time for Filing. A subcontractor whose only agreement is with the contractor cannot extend the time within which he may file a mechanic’s lien by substituting proper material for defective material theretofore furnished and charged to the contractor. Ashford v. Iowa & Minnesota Lumber Co., 81 Neb. 561.</p>

<p>1. Mortgages: Foreclosure: Ownership oe Notes. If the defendant in an action to enforce a mortgage produces the notes secured thereby, and it appears that he has controlled and had undisputed possession of the instruments for many years under 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. McCabe v. Reed, 88 Neb. 457.</p> <p>2. Process: Constructive Service: Publication oe Notice. Where a notice for constructive service by publication is published in a semiweekly newspaper, insertion of the notice in each of the regular issues during the week is necessary to constitute a legal publication for that week. Claypool v. Robb, ante, p. 193.</p> <p>3. Taxation: Foreclosure oe Lien: Publication oe Notice. Proof of publication of notice examined, and held insufficient to show that the notice was published for the time required by statute.</p>

<p>1. Venue: Action on Bond: Summons to Another County. The sureties on a bond given under the provisions of section 6, ch. 50, Comp. St. 1909, are not merely nominal parties in an action on the bond, but have such an interest in the action that an action on the bond may be brought against them in any county where they reside or may be found and, under section 65 of tbe code, a summons properly issued to any other county for service on their principal.</p> <p>2. Judgment: Rbliee in Equity. Where jurisdiction has attached, the fact that there is an error in the amount of recovery or other irregularities will not justify in a collateral action the granting of an injunction to restrain the enforcement of a judgment.</p> <p>8. Subrogation: Prtnotpai, and Surety. Tn equity, a surety paying a judgment against himself and his principal is entitled to be subrogated to the rights of the judgment creditor, and to have the judgment assigned to him or to some one else for his benefit.</p>

<p>Original action by the state to quiet title to a certain tract of land.</p>

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

<p>1. Pleading: Construction. Section 121 of the code commands the courts to construe with liberality the allegations in pleadings with a view to doing substantial justice between the litigants.</p> <p>2. Carriers: Action for Loss oe Baggage: Pleading. A petition charging, in substance, that a common carrier's porter refused a passenger for hire, who with her nine infant children, also passengers for hire, were changing cars on the defendant’s railway at a point intermediate the commencement and the end of their journey, readmission to the car in which she had been transported, and from which she desired to take her suit case with its contents, of the value of $1,525, although the porter knew that her suit case was in the car and she informed him of her purpose, but that he wilfully refused to admit her, and that although the train thereafter remained for a long time at the station, and she informed the carrier’s agents and servants in charge of the train that her suit case was in the car, they refused to deliver the suit case or to permit her to enter the car for the purpose of securing her property, and that it was not delivered to her and she has not received it, states a cause of action against the carrier.</p>

<p>1. Judgment: Nunc Pro Tunc Entry. Where it is clear that a judgment was rendered or an order made by the district court in an action then pending, but through the inadvertence or carelessness of the clerk the judgment or order was not entered on its journals, the court may subsequently upon motion, after notice to all persons affected thereby, cause the entry tó be made nunc pro tunc.</p> <p>2. -: -: Notice. In such proceedings it is not necessary to notify persons impleaded as defendants, but dismissed from the action before the judgment was rendered or order made.</p> <p>3. —-: -: Procedure. If the person injuriously affected by the fault of the clerk departs this life, his • legal representatives may maintain the proceeding in their names to supply the record.</p> <p>4. -: -: Notice. If tbe 'person benefited by the incomplete condition of the record departs this life without conveying or assigning his interest in the subject matter of the litigation, notice may be served on his legal representatives, and, on satisfactory proof, the record corrected.</p>

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

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

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

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

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

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

<p>Opinion on motion for rehearing of case reported in 89 Neb. 293.</p>

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

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

<p>1. Taxation: Power oe Legislature: Inheritances. “The enumeration of subjects of taxation in section 1, art. IX of the constitution, is not exclusive. The legislature has power to provide for taxation upon inheritances.” State v. Yinsorihaler, 74 Neb. 675.</p> <p>2. --: Inheritance Tax. The widow of a testator who takes real estate devised to her by his will in lieu of dower is not in a position to require the taxing authorities to exempt so much of such real estate as equals the value of her dower interest from the payment of an inheritance tax.</p> <p>3. -:--. By the provisions of chapter 13, Ann. St. 1909, the personal property of a decedent is primarily liable for the pay-meat of claims against bis estate; and those to whom he has devised his real estate cannot avoid paying an inheritance tax thereon by agreeing to satisfy a claim of one of them against the estate out of such real estate.</p> <p>4. -: -. Real estate devised by will passes to the devisee at the death of .the testator, and its status under the law taxing inheritances is fixed at that time. An agreement between devisees to satisfy a claim against the estate in favor of one of them by a conveyance of a portion of such real estate to the claimant will not exempt it from liability for an inheritance tax.</p> <p>5. -: -: Interest. By the provisions of section 11203, Ann. St. 1909, an inheritance tax bears interest from the death of the decedent, unless it is ascertained and paid within six months thereafter; and where his devisees have neglected to take any steps to ascertain or pay the same for more than two years after his death, they are not in a position to contest the payment of interest thereon.</p>

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

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

<p>Intoxicating Liquors: Action on Bond: Costs. In an action for damages on a saloon-keeper’s bond, a plaintiff is not entitled to recover his costs if the verdict in his favor is less than $200. Rosenbaum v. Dunston, 16 Neb. 111.</p>

<p>. 1. Chattel Mortgages: Validity: Bona Fide Purchasers. “When the .possession of property described in a chattel mortgage remains with the mortgagor, and the mortgage, or a copy thereof, is not filed as required by section 14, ch. 32, Comp. St. 1893, the mortgage is absolutely void as to creditors of the mortgagor, no matter whether they have actual notice of the mortgage or not.” Farmers & Merchants BanJc v. Anthony, 39 Neb. 343.</p> <p>2.-: Attachment: Priorities. A purchaser at a sale under attachment proceedings of chattels covered by an unfiled mortgage, without notice of the existence of such mortgage, takes the property discharged of the mortgage lien.</p>

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

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

<p>1. New Trial: Newly Discovered Evidence. Newly discovered evidence not relevant to the issues joined will not sustain an application for a new trial based solely on that discovery.</p> <p>2. -: -: Diliqence. A petition for a new trial based solely upon the discovery of new evidence is insufficient unless the facts and circumstances pleaded will sustain a finding that the petitioner exercised diligence in endeavoring to procure such evidence before the trial.</p>

<p>1. Contracts: Construction: Leases. Whether an instrument is an agreement to enter into a contract of lease or is a contract of lease is a question of construction to be ascertained from a consideration of its terms in the light of the surrounding circumstances.</p> <p>2. —----: -: Contract fob a Lease. An agreement in writing, containing no apt words of present demise, wherein one party agrees to construct a building upon a definitely described parcel of land and to lease the basement and first story of the structure to the other party, and reciting that a lease shall subsequently be executed, and wherein the other party “agrees on his part to ■ enter into a contract of lease for the above described and named building,” when considered in connection with the facts stated in the opinion, is construed to be a contract for a lease.</p> <p>-3.-: -: Interest in Land. This contract did not create an interest in the real estate therein described.</p> <p>4. --: Contract fob a Lease: Breach: Remedies. For a breach of a contract to lease, the expectant tenant may maintain an action for damages, or, in a proper case, for the specific performance of the contract.</p> <p>5.-: -: Abandonment. The mutual rights of the parties to a contract for a lease may be waived and extinguished by oral declarations and other acts of the parties clearly evincing a purpose to abandon the contract.</p> <p>6. Specific Performance: Contract fob a Lease: Abandonment. A court of equity will not decree a specific performance of a contract to lease, where the expectant tenant’s declarations and conduct were such as to induce the landlord in reason to believe that the contract had been abandoned, and the proprietor, in reliance upon that conduct, leased the premises to another party.</p>

<p>Pleading: Petition: Res Judicata. Where it appears upon the face of a petition that every material matter complained of has been adjudicated in former actions between the samé parties or their privies, a general demurrer thereto is properly sustained.</p>

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

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

<p>Appeal from the district court for Douglas county. Willis GL Seabs, Judge.</p>

<p>Opinion on motion for rehearing of case reported in 89 Neb. 808.</p>

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

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

<p>1. Railroads: Demurrage. A railroad company engaged in interstate commerce may charge and collect demurrage or car service charges in accordance with its tariff schedules, rules and regulations, filed with and approved by the interstate commerce com- ' mission, on cars used in interstate shipments, where the consignee fails to unload and release them within 48 hours, free time, after notice of arrival and tender of the shipments to such consignee, or the one charged with the duty of unloading such cars.</p> <p>2. -:-. The fact that neither the consignee nor the one charged with the duty of unloading is able to receive and unload the cars within 48 hours, free time, after notice of their arrival will not relieve the consignee of the obligation to pay such service charges.</p> <p>3. Trial: Directing Verdict. Where the evidence on the trial in the district court is not conflicting, and reasonable minds cannot differ as to the conclusion to be derived therefrom, it is the duty of the court, when requested, to direct a verdict in accordance with such conclusion.</p>

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

<p>1. Parent and Child: Liability of Parent. Ordinarily a father is not liable to pay for clothing purchased by his minor son. But where such purchases are made with the father’s knowledge and consent, and his conduct is such that the seller may reasonably infer that the father authorized them, he may be held liable therefor.</p> <p>2. Evidence: Books oe Account: Admissibility. An account kept by a tradesman in a book called a loose-leaf ledger, shown to be his book of original entries, and which contains many successive charges against the defendant and other persons, made in. the usual course of -business and" at the time the transactions occurred, upon being properly verified as provided by section 346 of the code, may be admitted in evidence as a book account.</p>

<p>1. Judgment: Validity: Constructive Service. Where, in an action to foreclose a tax lien brought against a nonresident, neither the record nor the files in the case furnish proof that a notice for constructive service was ever published, a judgment in such proceedings is subject to collateral attack.</p> <p>2.-: —-: Recitals in Judgment. A recital in the judgment that “the court finds that due and legal notice of' the filing and pendency of this action was given the defendants” will not supply the lack of the facts necessary to confer jurisdiction.</p>

<p>1. Drains: Assessments. In levying an assessment by a drainage district, that portion of land taken for tbe right of way of the ditch should not be assessed to the landowner from whose premises it is taken.</p> <p>2. -: —-. In such assessments exact nicety of apportionment is impossible. If the result of the improvement will be to specially benefit each tract or subdivision as a whole, it is immaterial whether within its limits there are portions which are not susceptible of cultivation, and the value of which, if taken by themselves and disconnected from the remainder of the tract, would not be enhanced.</p>

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

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

<p>1. Drains: Assessments: Appeal. It is sufficient to confer jurisdiction on the district court on appeal from a hearing upon objections to the assessment of lands to pay the cost of the improvement by the board of supervisors of a drainage district organized under the provisions of chapter 161, laws 1905, if the “secretary shall make and file a transcript of said hearing, together with all the papers relating thereto, with the clerk of the district court in which said matter has been appealed.”</p> <p>2. Constitutional Law: Drainage Act: Claims for Damages. The amendment made in 1909 of chapter 161, laws 1905, commonly known as the “Peabody Act,” by which certain provisions providing for the filing of claims for damages and a hearing thereon before the board of supervisors in connection with the assessment were omitted from the amended act, held not to render the amended act unconstitutional, as being in violation of section 21, art. I of the constitution.</p> <p>3. Drains: Establishment: Ascertainment of Damages. In the taking or damaging of private property by a drainage district corporation in carrying out the purposes of its organization, the same principles apply as to the ascertainment of damages as in the exercise of the right of eminent domain for the location of-a highway, the construction of a railroad, or like instances where private property is taken or damaged for public use.</p> <p>4. -:-:-: Action at Law. The fact that a special proceeding is not provided for in the act in question for the ascertainment of damages to land not actually taken does not interfere with the right of a landowner to maintain an action at law to recover his actual pecuniary loss, if any.</p> <p>5. -: Drainage District Corporations. A drainage district corporation founded under chapter 161, laws 1905, by the terms of section 37 is a body politic and corporate, and may sue and be sued.</p> <p>6. -: Drainage Districts: Board oe Supervisors: Jurisdiction. Where an engineer was appointed to make a survey, estimate and report for a drainage district, under the act of 1905, a topographical survey and maps and profiles made in substantial conformity with the provisions of the act as it then stood, which were filed in January, 1909, were sufficient to vest the board of supervisors with jurisdiction.</p> <p>7. -: -: Petitioners: Power to Limit Corporation. A person signing articles of incorporation for the formation of a drainage district under chapter 161, laws 1905, cannot limit the powers of the corporation as to the manner in which the territory within the district shall be drained by expressions in the petition filed for the purpose of the formation of the district.</p> <p>8. -: Assessment oe Benefits'. Where a general plan or scheme adopted for a drainage district consisting of over 20,000 acres of land in a river valley provides, as a part of the plan, for the straightening and cleaning out of the channel of the river and the excavation of certain lateral ditches, in order to more quickly dispose of water from overflow and that arising from surface waters flowing into the district from high lands adjoining, and the evidence shows that the lateral ditches are necessary to the complete carrying out of the plan or scheme, the mere fact that some of these laterals are not so situated as to confer a direct and immediate benefit on a landowner within the district cannot operate to relieve his land of its fair proportion of the common burden.</p> <p>9.-: -. The fact that an exact measurement of the benefits which may accrue to lands within a drainage district cannot be made with mathematical accuracy until after the completion of the scheme does not render the damages so speculative and conjectural in their nature as to be impossible of ascertainment before the improvement is made.</p> <p>10. Evidence examined, and held sufficient to sustain the findings and judgment of the district court.</p>

<p>1. Eminent Domain: Condemnation oe Streets: Damages. A common carrier in 1901 by condemnation proceedings acquired tie right to construct and maintain turnouts and tracks for the storage of cars upon parts of an alley and two streets within the city of South Omaha. Held, That the city, under the peculiar provisions of its charter and the facts in this case, should recover substantial damages.</p> <p>2. -:-:-: Evidence. In such a case, the issue having been tried to the court without the assistance of a jury, the judgment will be affirmed if there is sufficient competent evidence to sustain the recovery.</p>

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

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

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

<p>1. Sales: Refusal to Accept Goods: Action for Damages: Capacity to Sue. A purchaser who by a valid written contract induced a nonresident corporation, in compliance therewith, to deliver to a carrier for shipment the goods purchased, and attempted without cause to rescind the purchase while the goods were in transit, will not, in an action for damages for refusing to accept the consignment, be heard to assert that plaintiff has not legal capacity to sue.</p> <p>2. Corporations: Action: Pleading: Noncompltanoe with Statute, as Defense. A defendant who relies for a defense upon the plaintiff’s failure to comply with the act (Comp. St. 1907, ch. 16) requiring a nonresident corporation to become a domestic corporation, before transacting business in Nebrasha, should plead and prove facts showing noncompliance with such statute.</p> <p>3. Sales: Rescission: Liability foe Damages. After goods have been sold and delivered to a carrier for shipment pursuant to a valid contract in writing, the purchaser, in absence of the seller’s consent, cannot rescind the purchase on account of a financial depression alone without incurring liability for resulting damages.</p> <p>4. -: -: Resale: Damages Recoverable. Where an Illinois corporation, having an agency in Omaha, sells dried fruit and delivers it to a carrier in California for shipment to the purchaser at Lincoln, Nebraska, pursuant to a valid written contract and a custom of the parties, the seller may • divert the shipment to Omaha, resell the fruit there or in neighboring markets within a reasonable time for the best prices obtainable, and recover from the purchaser proper charges for storage, insurance, and freight, which the latter agreed to pay, and also the difference between the contract prices and the prices for which the goods were resold, if the purchaser without cause attempted to rescind the purchase, while the fruit was in transit in a car-load lot containing goods ordered by other purchasers, and absolutely refused to accept the consignment any place under any circumstances.</p> <p>5.--: -: -: Unreasonable Delay. Whether a resale of goods, purchased by a dealer who refused without cause to accept them, was unreasonably delayed depends upon the facts and circumstances of each particular case.</p> <p>6. -: -: Action fob Damages: Pleading: Notice of Resale. In a suit by a seller to recover- from the purchaser the difference between the contract prices and the prices for which the goods purchased were resold, after the purchaser without cause absolutely refused to accept them, it is unnecessary for plaintiff to allege that defendant had notice of the resales, where the petition contains allegations showing the latter had notice of the facts under which plaintiff’s right to make the resales existed.</p> <p>7.-: -:--: -: Tender. Where the purchaser of goods delivered to a carrier in California for shipment to Lincoln, Nebraska, absolutely refuses without cause, while the goods are in transit, to accept them anywhere under any circumstances, it is unnecessary for the seller, after diverting them to Omaha for storage and resale, in a suit to recover damages for breach of the contract, to allege and prove that the consignments were tendered to the purchaser at Lincoln, the latter having been repeatedly requested to accept them" there.</p> <p>8. -: Nonacceptance: Grounds foe Refusal. Where a purchaser of goods absolutely refused to accept them on the sole ground of an unexpected financial depression, otlier grounds, in absence^ of fraud, need not be considered in a suit by tbe purchaser to recover tbe difference between tbe contract prices and tbe prices for which the goods were resold, if they complied with the contract of purchase in kind, quality and quantity.</p>

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

<p>1. Pleading: Inconsistent Pleas: Appeal: Waiver. Where defendant goes to trial on the issues raised by the pleadings as a whole, without attacking the reply in any form on the ground that it is inconsistent with the petition or that it changes the cause of action, it may be held on appeal that he waived those objections.</p> <p>2. Contracts: Action on Subscription: Estoppel. In a suit on a subscription obligating defendant to pay one-fourth of the cost of the nave of a church edifice, plaintiff, under proper pleadings, may prove facts showing defendant was estopped by subsequent conduct and statements from urging the defense that the entire building, including such nave and the chancel, was constructed at one time, instead of the nave alone, as contemplated by the subscription and the original plans.</p> <p>3. Evidence: Cost oe Construction op Building. The cost of a nave constructed with the chancel and other parts of a church edifice may be shown by builders and contractors who are competent to testify to separate items comprising the total cost of the entire structure and to the proportion and amount attributable to the nave.</p> <p>4. Appeal: Excessive Recovery. In an action at law, excess in the amount of the recovery should be called to the attention of the trial court by the motion for a new trial to make the error available on appeal.</p>

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

<p>1. Drains: County Commissioners: Employment of Engineer. When a board of county commissioners, in establishing a drainage ditch, by resolution duly entered upon its journal, employs an engineer, as authorized by section 5506, Ann. St. 1903, and it appears that by oral direction of individual members of the board such engineer had, with the knowledge of all of the members of the board, already performed a part of the work necessary under his general employment, and that the county will receive the benefit thereof, held that the official employment by the board will relate back to the time of the beginning of the work under such oral direction, and will entitle the engineer to reasonable compensation for such work.</p> <p>2.-: -: Powers. Paragraph 2 of the syllabus in State v. Boss, 82 Neb. 414, reaffirmed.</p> <p>3.-: -: Liability for Services of Engineer. Where a county board, after having established a ditch and employed an engineer to survey and report upon the same, under the provisions of sections 5500, 5506, Ann. St. 1903, subsequently rescinds its action establishing such ditch, but fails to notify the engineer of its subsequent action, such engineer will be entitled to reasonable compensation for services and expenses subsequently and in good faith performed and incurred by him in the line of his employment.</p> <p>4. Appeal: Conflicting Evidence. In a law action, where the evidence upon any disputed question of fact is sufficient to sustain a finding either Way, the finding of the trial court thereon will be sustained on appeal.</p>

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

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

<p>1. Wills: Reciprocal Wills: Parol Contract Inter Vitos. Where a husband, and wife, possessed of separate estates, orally agree that upon the predecease of either the survivor shall thereupon become the owner of all of the estate, both real and personal, of such decedent, and at the same time, and in pursuance of,, and for the expressed purpose of providing a proper method of carrying such agreement into effect, simultaneously execute reciprocal wills, in each of which the other spouse is made, sole devisee and legatee, held that the oral agreement and the execution of the wills constitute a single transaction, that each is an integral part of one contract, and that such contract cannot be said to rest entirely in parol.</p> <p>2.--: -: -: Consideration. And, in such a case, the contract of each is a sufficient consideration for the contract of the other.</p> <p>3.-: -: -: Performance. And the continued reliance by plaintiff upon the contract, by permitting her will executed as a part thereof to remain in the family safe, unchanged and unrevoked, during the entire lifetime of the deceased, constituted full performance by her of the terms of the contract.</p> <p>4. -: -: Revocation. And the wills, executed as a part of such contract, in equity, are not ambulatory, and may not be revoked by either party to such contract so long as the other party continues to perform the contract on his or her part.</p> <p>5. -: -: Parol Contract Inter Vivos: Specific Performance. And where either party to such a contract commits a breach of the same by subsequently executing another will, devising and bequeathing his estate contrary to the terms of such contract, and dies, the survivor, upon proof of a continued performance thereof, in good faith, on his or her part, is entitled to a specific performance of the contract, as against the heirs, devisees, legatees, and executors of the decedent.</p> <p>6. Pleading. The petition, set out in the opinion, examined, and held *' sufficient.</p>

<p>1. Customs: Evidence. Evidence that a certain course is “generally” and “usually” pursued in a particular manner is sufficient to establish a custom. It is not essential to show that the “particular manner” is never deviated from.</p> <p>2. Master and Servant: Injury to Servant: Trial: Directing Verdict. Evidence examined and set out in the opinion, JieU sufficient to sustain the verdict of the jury.</p>

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

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

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

<p>1. Waters: Control of by State. In this state, the water of running streams is publioi juris; its beneficial use belongs to the public and is controlled- by the state in its sovereign capacity.</p> <p>2.-: Appropriation by Riparian Owners. Riparian owners cannot appropriate the water of running streams without the permission of the state.</p> <p>3. -; -: Regulation by State. If the state grants the right to appropriate the waters of its running streams for beneficial use, it may do so under such limitations and conditions as it finds to, be necessary and proper to subserve the public welfare.</p> <p>4. -; -: Use Confined to State: Interference with Interstate Commerce. In granting the right to appropriate water of a running stream for power purposes, it is within the discretion of the state, through its proper officers, to limit the rights granted so as to prevent the transmission or use of the power beyond the confines of the state. Such limitation does not violate the federal constitution as interfering with interstate commerce.</p> <p>5.-: -: Control or State Board oe Irrigation. The state board of irrigation, highways and drainage, in acting upon an application for the appropriation of the waters of the state, is given a reasonable discretion to so limit the grant that it will not be detrimental to the public welfare.</p>

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

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

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

<p>Error to the district court for Garden county: Ralph W. Hobart, Judge.</p>

<p>1. Criminal Law:' Instructions. Where the district court has by his instructions fully and correctly stated the law as it should be applied to the facts disclosed by the evidence in a criminal prosecution, he is not required to give further or additional instructions requested by the defendant.</p> <p>2. -: Evidence: Review. If the record contains competent evidence from which the jury could reasonably find the defendant guilty of the crime charged in the information, a reviewing court will not be justified in setting aside such a verdict.</p> <p>3. -: Trial: Limitation oe Argument. It is within the discretion of the district court to reasonably limit the time allowed counsel in which to argue his cause to the jury, and, unless it appears that there has been an abuse of such discretion, such a limitation does not afford sufficient reason for reversing the judgment of that court.</p>

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

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

<p>1. Bastardy: Nature oe Proceeding. Bastardy proceedings are civil and not criminal in their nature.</p> <p>2. -: Evidence. The written examination of the complainant before the justice in bastardy proceedings may be given in evidence at the trial by either party.</p> <p>3. -: Instructions: Variance. Where the plaintiff charged that the intercourse which resulted in her pregnancy was had upon September 28, and the evidence tended to show that if defendant was guilty at all it must have taken place on September 30, an instruction that the jury might find the defendant guilty whether the intercourse was had on either date is not erroneous.</p> <p>4. Mew Trial: Newly Discovered Evidence. To entitle a party to a new trial on the ground of newly discovered evidence, it must appear that the applicant could not in the exercise of due diligence have discovered and procured such evidence at the trial. It must further appear, where the alleged newly discovered evidence is cumulative in its nature, that it is of such a weighty character as would probably change the result of the trial. Bofflne v. Ewings, 60 Neb. 729.</p> <p>5. Appeal: Misconduct of Counsel: Review. In order to review misconduct of counsel during the trial as a ground of error, the alleged misconduct must have been called to the attention of the district court, an adverse ruling had, and an exception taken,</p> <p>6. Evidence examined, and held to sustain the verdict.</p>

<p>1. Insurance: Action on Policy: Defense of Suicide: Burden of Proof. In an action upon a policy of life insurance, the burden of proof is upon the defendant to prove by a preponderance of the evidence a controverted defense that the assured died as the result of poison, self-administered with suicidal intent.</p> <p>2.-: -: -: Evidence. The defense in such a case is not made out unless the evidence clearly and unmistakably points to the conclusion of suicide, and to the exclusion of all reasonable probability of death by accident or from natural causes.</p> <p>3.-: -: Stoteioiency oe Evidence. The evidence adduced in this case is referred to and commented upon in the opinion, and held sufficient to sustain a verdict in the plaintiffs favor.</p>

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

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

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

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

<p>1. Pleading: Petition: Aider by Answer. A petition omitting material averments is cured by an answer supplying them.</p> <p>2. Partnership: Assets: Good Will. The good will of a dissolved partnership is a part of the assets of the firm.</p> <p>3.-: Settlement: Omitted Item: Action at Law. A partner’s . share of the value of a single asset not included in the settlement of the partnership affairs, as made by his partners without his knowledge, may be recovered in an action at law.</p> <p>4. Trial: Trial to Jury: Pleadings. The trial of an issue of fact to a, jury in an action at law should not be abandoned because the pleadings as a whole contain matter relating to an accounting about which there is no dispute between the parties to the suit.</p> <p>5. Partnership: Neglect of Partner: Forfeiture. A partner by merely neglecting his duties to the firm does not thereby forfeit his right to the assets of the partnership, in absence of an agreement to that effect.</p> <p>6. Trial: Verdict: Impeachment. Matters inhering in the verdict of a jury cannot afterward be attacked by affidavits of the jurors.</p>

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

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

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

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

<p>Appeal from tbe district court for Merrick county: 0 one ad Hollenbeck, Judge.</p>

<p>Opinion on motion for rehearing of case reported in 89 Neb. 280.</p>

<p>Opinion on motion for rehearing of case reported in 89 Neb. 770.</p>

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

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

<p>¡Larceny: Sufficiency of Evidence. Evidence examined, its substance stated in tbe opinion, and held to be insufficient to sustain tbe verdict.</p>

<p>1. Replevin: Estrays: Refusal to Arbitrate One who takes up an animal as an estray under the provisions of chapter 27, Comp. St. 1911, cannot prevent the owner from recovering his property by refusing to accept a sum of money sufficient to pay for the expense incurred and the cost of keeping and caring for the animal or to submit his claim therefor to arbitration.</p> <p>2- -: -: -. In case of such refusal, the owner, after depositing a sum of money in court sufficient to cover the expense and cost of keeping and earing for the animal, may recover his property by an action in replevin.</p>

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

<p>Trusts: Constructive Trusts: Relief in Equity. Where one person obtains property of another by theft or fraud, equity will raise a constructive trust in favor of the defrauded party, and he may follow the property into the hands of third persons taking it with knowledge.</p>

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

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

<p>1. Instructions examined and referred to in the opinion, held without prejudicial error.</p> <p>2. Evidence examined, and found sufficient to sustain the verdict and judgment.</p>

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

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

<p>Opinion on motion for rehearing of case- reported, ante, p. 553.</p>

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

<p>1, Appeal: Dismissal of Action: Pleading and Proof. In a suit aided by attachment proceedings for the recovery of money loaned or advanced under an alleged oral agreement of repayment, if tlie plaintiff’s undisputed evidence is insufficient to sustain a judgment in bis favor, and clearly shows that his action should have been one for' an accounting between partners, it is not reversible error for the court to sustain a demurrer to the evidence and dismiss the action.</p> <p>2.-: Aittbmance. Where the judgment of the district court is proper upon the undisputed facts shown by the record, it will be affirmed, without considering whether the reasons given by the trial judge for his conclusion were competent and adequate to support the same. Bowhay v. Richards, 81 Neb. 764.</p> <p>3.-: Questions Reviewable. On appeal in such a case, this court will not consider errors alleged to have been committed in matters of practice or procedure.</p>

<p>1. Judgment: Revivor: Plea oe Payment: Burden oe Proof. In a proceeding to revive a dormant judgment, where the judgment debtor pleads payment, a presumption of payment arises, and the burden is upon the judgment creditor to rebut that presumption. Platte County Bank v. Clark, 81 Neb. 255; Wittstruek v. Temple, 58 Neb. 16.</p> <p>2. Evidence examined, and held insufficient to overcome the presumption of payment.</p>

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

<p>1. Process: Summons: Amendment. A petition was filed against “Mutual Life Insurance Company of New York”; the summons and return thereto named the party defendant in like manner. The proper name of defendant is “The Mutual Life Insurance-Company of New York.” The summons was served upon the managing agent of defendant. Defendant made a special appearance objecting to the jurisdiction. Before the objections were submitted the plaintiff filed motions to amend the petition, summons, and return by correcting the name of defendant. These motions were sustained. The plea to the jurisdiction was then overruled. The summons was served before the bar of the statute of limitations had fallen; the amendment was made thereafter. Seld, That it was not erroneous to allow the amendment to be made, and that it related back to the date of the service of the summons upon the proper person.</p> <p>2. Judgment: Res Judicata. A general demurrer to a petition was sustained in the circuit court of the United States and the plaintiff given leave to amend; an amended petition was then filed containing additional allegations; a general demurrer was filed to this petition, but while the demurrer was pending, and before submission, the action was dismissed at the plaintiff’s request. The petition in this case is substantially identical with the latter petition in the federal court. Held, That the ruling upon the demurrer to the first petition and the judgment of voluntary dismissal do not establish the defense of former adjudication.</p> <p>3. Insurance: Contract : Place oe Contract: Laws Governing. Where a resident of Nebraska, who then owned a paid-up policy of insurance in the defendant company, made an application at his home in this state for a new policy to an agent of the defendant who was authorized to transact business for it in this state, and submitted to a medical examination, and delivered to the agent here his paid-up policy with a paper authorizing and directing the company to apply from the surrender value of the former policy the amount of the first two premiums, and pay the remainder to him in cash, and afterwards, without any communication between the applicant and the home office, the agent in this state delivered the new policy and a check for the balance due on the surrender value, the contract was completed in Nebraska, and is to be governed by the laws of this state, and not by those of the state of New York where the home office of the defendant is.</p> <p>4.-: : Abandonment oe Contract: Question eor Jury. Whether or not the insurance contract was abandoned is a question of fact for the jury to determine.</p> <p>5. -: Construction oe Policy: Forfeiture. When the insured died, the insurer had in its possession an accumulated reserve on his policy sufficient to pay the premiums upon the policies for more than three years and until after his death. There being no forfeiture clause in the policy, held that the insurance was in force at the time of his death, unless the policies were abandoned.</p> <p>6. -: -: Incontestability. The incontestable clause of the policies sued'upon does not apply to the defense of lapse or forfeiture by nonpayment of premiums, or to the defense of abandonment of the contract.</p> <p>7.-: -: Rights of. Insured. There being no forfeiture clause in the policy, its provisions allowing options to the insured of taking a paid-up policy, etc., on default of payment of premium on the day fixed, did not bind the insured to exercise the options, and he had the right to rely upon the main and not upon the ancillary or subordinate stipulations, if it seemed best to him so to do.</p>

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

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

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

<p>1. School Lands: Leases: Default of Lessee: Notice. The requirement of section 17, ch. 80, Comp. St. 1911, that, in the event of a default by any lessee of educational lands in the payment of the semiannual rental due the state, the commissioner of public lands and buildings may cause notice to be given to such delinquent lessee or purchaser that, if such delinquency is not paid within 90 days from the date of the service of such notice, his lease or sale contract will be declared forfeited by the board of educational lands and funds, and that the service of the notice contemplated is “to be made by registered letter,” is not satisfied by the mailing by the commissioner of the required notice, in a registered letter addressed to a lessee not then living; notwithstanding the fact that said section contains the further proviso that, “In serving the notice of delinquency and forfeiture herein provided for the commissioner shall recognize as the lessee or owner of the lease or sale contract the person, or persons, whose title appears last of record in his office.”</p> <p>2. -: -: Forfeiture: Subsequent Lease: Discretion of Board. And where the board, acting upon such insufficient notice, forfeits a lease on account of such a deiault, and again offers the land at public sale, and the county treasurer accepts an application and bid from a proposed subsequent lessee, and makes due report of his proceedings; and the commissioner of public lands and buildings, prior to having executed a lease to such subsequent lessee, becomes advised of the fact of the want of jurisdiction by the board in canceling the former lease, and of the further fact that the executor of the will of such former lessee has made good the default, with interest and all penalties, by payment of the money therefor to the county treasurer, it is not only within the sound discretion, but it is the duty of, the commissioner to refuse to issue a lease to such subsequent lessee.</p> <p>3. Mandamus: Denial of Writ. In an action for mandamus, where it clearly appears that to compel the respondent to do the act demanded in the application for such writ would be to compel him to do a wrong, the writ will be denied.</p>

<p>1. Pleading: Petition in Equity: Joinder of Causes of Action. A demurrer to a petition in equity on the ground that several causes of aetion are improperly joined cannot be sustained because of uncertainty as to which of the plaintiffs is entitled to the relief demanded. If the uncertainty as to the respective rights of the plaintiffs arises from the language of the grant under which they claim, it is for a court of equity to determine their respective rights.</p> <p>2. Quieting Title: Parties. A plaintiff who claims a life interest in real estate may join with those who claim the remainder in an action to quiet title against one in possession who refuses to recognize the right of either and claims the land under a clause ■in the deed through which all of the plaintiffs derive their rights.</p>

<p>■Waters: Action 'on Irrigation Contract: Liability on Subsequent Grantee. A purchaser of land from one who holds a water-right contract thereon with an irrigation company, and who takes title thereto by a deed containing the ordinary covenants of warranty, with no reference to the question of water rights, and who refuses to accept water from the company, is not personally liable for the maintenance fee mentioned in the water-right contract between his grantor and the irrigation company, and an action cannot be maintained against him to recover a personal judgment therefor.</p>