Volume 92 — Nebraska Reports

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

<p>1. Statutes: Inheritance Law: Constitutionality. Chapter 49, laws 1907, does not violate the provision of section 11, art. Ill of the constitution, that “no bill shall contain more than one subject, and the same shall be clearly expressed in its title.”</p> <p>2. Wills: Rights of Surviving Spouse. A husband cannot lawfully devise his real estate or lawfully dispose of his personal property by will so as to deprive bis wife of all interest therein given by the said act.</p> <p>3. -: -. If a married man by his will disposes of all his property, real and personal, to others, and gives nothing to his wife, she will be entitled to take the distributive share given her by the statute as though he had died intestate.</p>

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

<p>Error to the district court for Burt county: George A. Day, Judge.</p>

<p>Rehearing of case reported in 90 Neb. 298.</p>

<p>1. Municipal Corporations: Detaching Territory: Review. Upon an appeal from the judgment of the district court under section 8978, Ann. St. 1907, to detach territory from a village, the judgment of the district court will he affirmed, unless it is made to appear that the trial judge committed an important mistake of fact or made an erroneous inference of fact or of law. Bisenius v. City of Randolph, 82 Neb. 520; Gregory v. Village of Rranklin, 77 Neb. 62; Miehaelson v. Village of Tilden, 72 Neb. 744.</p> <p>2. Evidence examined and found to sustain the judgment of the district court.</p>

<p>1. Wills: Construction. The provisions of a will, like all other contracts, must be construed with a view of carrying out the intention of the testator, and unless there is something in it contrary to the law of the state, or in contravention of public policy, it will not be declared invalid. St. James Orphan Asylum v. Shelby, 60 Neb. 796.</p> <p>2. -: -: Ambiguity. The testator was the owner of a 240-acre farm “in Pleasant Valley township,” otherwise described as the west half of the northwest quarter of section 13, and the south half of the northeast quarter, and -the east half of the southeast quarter of section 14, all in township 19, of range 5 east of the sixth principal meridian, in Dodge county, on which resided his two sons, Joseph Heywood and Thomas J. Heywood, who were farming the same, and to whom he desired to devise the said farm subject to the life estate of his wife, Katherine Heywood, and he so informed the witness who drafted the will, and who then made a rough draft of the proposed will from which he shortly afterwards prepared the will itself, leaving out of it one of the three eighties which constituted the farm; at the time the will was made the testator only bwned one farm “in Pleasant Valley township,” and he owned in township 19, of range 5 east, the 240 acres of land above described and no other land in that township, so that the land is identified with the particular farm intended to be devised to the two particular sons so named in the will.</p> <p>3. -— -■: -: Extrinsic Evidence. Where the intention of the testator is to be gathered from the will itself and from the extrinsic evidence of facts surrounding its execution, such extrinsic evidence is admissible for the purpose of ascertaining whether a state of facts existed at the time the will was written which corresponded with the words used and the aim of the testator. Such evidence may not be admitted to vary the terms of the will or to add anything to it so. as to arrive at an intention not expressed in it, but to harmonize the language used by the testator with the facts referred to, and thus to arrive at the testator’s intention as expressed in the will, and a ruling which makes the will and the facts inconsistent is not to be adopted.</p> <p>4. Evidence examined and found to sustain the judgment of the district court.</p>

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

<p>Judicial Sales: Sale by Referee: Completion of Bid. "Where a bidder at a referee’s sale, shortly before the sale was closed, claimed , that a railroad company owned and occupied a right of way across the tract offered which reduced the number of acres to be conveyed, and so should reduce the aggregate of the sum to be paid; held, (1) under the evidence, that the alleged ownership and the occupation of such right of way strip by the railroad company constituted merely an easement likely to be divested under the terms of the deed if it abandoned the road or changed its track therefrom, and that the court authorized the sale of the tract as a whole, and that the purchaser could not impose terms upon the referee or make a bargain with him unauthorized by the court; (2) that, the court having authorized the sale of the tract as a whole, the purchaser took such rights only as the referee could convey to him, which included the whole tract, subject to the easement of the railroad company; (3) that a bid at a referee’s sale is only a proposal to buy, which may be withdrawn by the bidder at .any time before the crier signifies his acceptance thereof (Nebraska Loan & Trust Co. 'v. Hamer, 40 Neb. 281), but, appellant’s bid in this case having been accepted without any intimation of withdrawal, he is liable at the rate per acre bid by him for the entire 80-acre tract offered for sale by the referee.</p>

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

<p>1. Kape: Evidence. The unquestioned proof that a female child of the age of 17 years was pregnant and dies from the effects of an abortion is sufficient evidence of the fact that some one had had sexual intercourse with her at the time of age which is prohibited by statute.</p> <p>2.--: -. The evidence by which it was sought to prove the guilt of the defendant of the crime of statutory rape was largely circumstantial, although not wholly so. The facts testified to are examined and found to be sufficient to be submitted to the trial jury.</p> <p>3. -: -: Privileged Communications. In a trial of a charge of statutory rape, where the female child died from the effects of-an abortion criminally produced, evidence by the physicians who attended her in her last illness, and who were present at the time of the miscarriage, as to what they discovered upon an examination of the patient during such attendance ■ is not prohibited by the law of this state.</p> <p>4. Instructions, both given and refused, are examined, though not set out in the opinion, and no reversible error is found in them.</p> <p>5. Criminal Daw: New Trial,: Discretion oe Court. Where misconduct on the part of a bailiff in charge of a trial jury during their deliberations is alleged in a motion for a new trial, and the issue is submitted upon conflicting affidavits, the decision of the district court thereon will not be reversed unless found to be clearly wyong.</p>

<p>1. Intoxicating Liquors: Illegal Sale: Evidence. In a prosecution for the sale of spirituous and intoxicating liquor called whiskey, in violation of chapter 50, Comp. St. 1911, evidence that the liquor sold, without a license, to the prosecuting witnesses was intoxicating, that it looked like whiskey, and tasted like whiskey, is sufficient to sustain a conviction. White v. State, 88 Neb. 177.</p> <p>2. -: -: Instructions. In such a prosecution, if the evidence is conflicting, the court should submit the case to the jury under proper instructions, and an instruction that “the -law of Nebraska provides that all persons who shall sell any spirituous liquors or any intoxicating drinks without first having obtained a license for selling such liquors shall be deemed guilty of a misdemeanor” is without error.</p> <p>3. -: -: -. Other instructions examined, the substance thereof stated in the opinion, and held to be without error. 4.-: -: Evidence. On the trial of such a case, it is not error to permit the. state to introduce in evidence the federal liquor license issued to the defendant, where the sole objection to its introduction is that it was obtained from him by stealth.</p>

<p>Appeal from the district court for Scott’s Bluff county: Ralph W. Hobart, Judge.</p>

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

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

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

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

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

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

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

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

<p>1. Waters: Dbai.nage: Action eor Damages. It is the duty of one who uses, maintains and controls a ditch for the purpose of lowering the waters of a lake or pond to a navigable river to erect and maintain a dam at the outlet of the ditch sufficient to prevent the flood-waters of the river from entering it and overflowing the lands owned by other persons adjacent thereto.</p> <p>2. -: -: -. Where such dam is negligently constructed or maintained, and by reason thereof farm lands in the vicinity of the ditch are overflowed, and crops growing and personal property situated thereon are injured and destroyed, the person or corporation having the control, management and use of such ditch and dam is liable for the damages caused thereby.</p> <p>3. -: -; -: Limitations. In such, a case, the cause of action arises when the damages are sustained.</p> <p>4. -: -: -L: Defenses. The fact that the ditch and dam are situated upon lands owned by persons other than the defendant is no defense to such an action, where it is shown that defendant freely exercises the use, control, operation and management thereof in the prosecution of his own private business.</p> <p>5. Instructions. The substance of instructions given and refused by the trial court are stated in the opinion, and the rulings thereon are held to be without error.</p>

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

<p>1. Licenses: Occupation Tax: Cities. Under subdivision 9, sec. 48, art. Ill, ch. 13, Comp. St. 1911, each city of tbe first class Raving more tban 5,000 and less tban 25,000 inhabitants has the power to levy a tax upon every business or occupation carried on within the territorial limits of the municipality, excepting alone those enumerated in the proviso clause of said section.</p> <p>2. -: -: Constitutionality. A city of the above class may lawfully enact an ordinance imposing on telegraph companies a license tax of a reasonable sum per annum for the privilege of transacting the business of telegraphy within the city, and, where such ordinance imposes a tax equal in amount upon all such telegraph companies, it is not obnoxious to the rule of uniformity and equality under sections 1, 6, art. IX, of the constitution.</p> <p>3. -: -: -. The amount of an occupation tax is not to be measured by the profits of the business taxed, but should be considered as one incident to local self-government, and when thus considered it appears prima facie reasonable in amount, courts of justice should not declare the ordinance void, unless and until it is clearly shown by competent evidence that the license charge is in fact unreasonable or confiscatory.</p>

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

<p>Appeal from the district court for Lancaster county: P. James Cosgkave, Judge.</p>

<p>Judgment: Suit to Vacate: Evidence. Evidence examined and set out in tie opinion, held sufficient to sustain the finding and decree of the district court.</p>

<p>1. Ejectment: Parties. Where parties entitled to the possession of land, in arranging for the commencement of an action to recover such possession, execute to their attorneys a quitclaim deed to an undivided half of such land under an agreement that such deed is to be held as security only for the services to be rendered by such attorneys in their behalf, such deed is in effect a mortgage, and does not render it necessary to join the grantees therein named as plaintiffs in such action.</p> <p>2. Appeal: Law of the Case. "The decision of questions presented to this court in reviewing the proceedings of the district court becomes the law of the case, and, for the purposes of the litigation, settles conclusively the points adjudicated.” Anheuser-Busch Brewing Ass’n v. Sier, 61 Neb. 582.</p> <p>3. Trial: Directing Verdict. In the trial of an action in ejectment, where the undisputed evidence clearly establishes the right of possession to be in one of the parties to such action, it is not error for the court to direct the verdict.</p> <p>4. -: Instruction. The instruction given by the trial court examined, and held to have properly submitted to the jury the only controverted question of fact in the case.</p>

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

<p>1. Elections: Nominations: Political Parties. Chapter 26, Comp. St. 1911, clearly recognizes the existence of political parties, and delegates to the members of each party the right to vote at primaries and general elections for candidates of their own party, nominated by themselves without the interference of members of any other political party.</p> <p>2. -: -: Presidential Electors. The preferential vote given by the voters of a political party at a primary election for a particular person as the party candidate for - president, while morally binding upon the delegates of such party to the national convention, has no relation whatever to candidates nominated at such primary for presidential electors. 3. -; -; -. Persons nominated by a political party at a primary election as candidates for presidential electors are nominated, not as electors to vote for any particular candidate then known, but to vote, if elected, for the persons who may subsequently be nominated by the national convention of such party as candidates for the offices of president and vice president.</p> <p>4. -: Presidential Electors: Vacancy. It is a well-settled rule at common law that if a person, while occupying one office, accepts another incompatible with the first, he, ipso facto, vacates the first office, and his title thereto is thereby terminated without any other act or proceeding.</p> <p>5. -: -: -. In such a case one of the tests of incompatibility is whether the nature and duties of the two offices are such as to render it improper, from considerations of public policy, for the incumbent to retain both.</p> <p>6. -: -: Filling Vacancy. Where it appears that acts or events have occurred rendering an office vacant, the authority having the power to fill such vacancy may treat the office as vacant and proceed to elect or appoint, according to the form of law, another to fill it.</p> <p>7. -: Rights of Voter: Enforcement. By the statutes of this state, every voter has the right, by a single cross, or by one manipulation of the lever of a voting machine, to vote a straight ticket for the candidates of his party; and it is the right of the governing body or committee of a political party to appeal to the court to enforce such right.</p> <p>8. -: Political Parties: Governing Body. Under the statutes of Nebraska, the national convention of a political party, or, when the convention is not in session, its national central committee is the supreme governing body of such party as to national affairs, and has full authority to decide which of rival conventions or committees in the state is the regular and duly authorized convention or committee of such party.</p>

<p>1. Judgment: Revivor. Revivor of a dormant judgment under our statute has no other effect than to reinstate the judgment and authorize execution to collect the same.</p> <p>2. -: -: Parties. One not a party to the original judgment who fails to appear upon service of the conditional order of revivor is not made a party to the judgment by the final order reviving the same.</p> <p>3. Execution: Injunction. One who was nota party to the proceedings in which judgment is entered may enjoin the levy of an execution upon his property to collect such judgment.</p>

<p>1. Mandamus: Vacation of Injunction. This court has jurisdiction by mandamus to compel a judge of the district court to vacate an order of injunction, if the district court was entirely without jurisdiction to make such order.</p> <p>2. District Courts: Power to Enjoin Justice’s Judgment: Quiere. Whether the district court has jurisdiction in an action brought solely for that purpose to enjoin the enforcement of a judgment of a justice of the peace in forcible entry and detainer on the ground that the justice had no jurisdiction because title to real estate was drawn in question is doubted, but not determined, the case being disposed of upon other grounds.</p> <p>3. Injunction: Enjoining Judgment of Forcible Entry and Detainer. The district court has jurisdiction of an action to enforce the specific performance of a contract for the sale of real estate, and in such action may enjoin the prosecution of an action of forcible entry and detainer involving the same premises and pending upon appeal from justice court, and may enjoin the enforcement of the judgment of the justice while such appeal is pending.</p>

<p>1. Elections: Nominations. The legislature of this state in providing for the “closed primary” has adopted the policy of allowing each political party to select its own candidates.</p> <p>2. -: -. Any one who has the statutory qualifications to fill an office may be a candidate for election to that office. If he affiliates with a political party he may become the candidate of that party, or he may become a candidate independently of all parties.</p> <p>3. -: -. Under our primary law no political party can be compelled to present as its candidate at a general election one who does not affiliate with the party so presenting him as a candidate.</p> <p>4.-: -: Pilling Vacancies. If a political party at its primary makes no nomination of a candidate for election to an office, a vacancy has occurred, within the meaning of the statute, and the proper party committee may fill that vacancy.</p>

<p>1. Drunkards: Instruction. Tke instruction set out in the opinion is held to be an erroneous definition of drunkenness and a state of intoxication.</p> <p>2. Witnesses: Physicians: Privileged Communications. The doctor who was called to testify as a witness on behalf of the state, and who dressed the wounds of the defendant, was incompetent to testify to the defendant’s condition, over the objection of the defendant that he was disqualified by reason of section 333 of the code.</p>

<p>Judgment: Revivor: Plea oe Payment: Evidence. Proceedings to revive a dormant judgment. A transcript of the judgment was filed in the office of the clerk of the district court November 3, 1884. December 29, 1884, defendant conveyed certain land to plaintiff by deed containing the usual covenants of warranty, and upon which the judgment was a lien. Plaintiff paid the judgment August 6, 1885, when it. was assigned to his agent, who subsequently assigned to him. No effort was made to collect, perpetuate, or revive tbe judgment until 1907. Upon an application to revive tbe judgment, defendant pleaded payment, and testified that at the time of the sale of the real estate $1,000 of the purchase price of the land was withheld by plaintiff, with defendant’s consent, with which to pay the judgment liens. There was a general finding in favor of defendant by the trial court. The sum of $1,000 was more than sufficient to cancel the judgment liens. The judgment docket contains no record of the satisfaction of the judgment. Held, That, if such sum was retained by plaintiff for that purpose, it would be a complete defense to his action to revive, without reference to whether the money was applied by him to the payment or not, which was a question of fact to be decided by the trial court. The finding being in favor of defendant on conflicting evidence, but which is sufficient to support the conclusion reached, will not be disturbed.</p>

<p>1. Replevin: Judgment for Defendant: Return of Property. Where, in an action of replevin, the property in dispute is delivered to the plaintiff upon the execution of a proper bond, and the trial results in a judgment in favor of the defendant for a return of the property to him, it is the duty of the plaintiff to return the possession of the replevied property to the defendant within a reasonable time in substantially the same condition as when taken, without deterioration in value.</p> <p>2. -: -: -: Damages. In case the replevied property is not redelivered or tendered back within a reasonable time, and, when tendered, is greatly diminished in value by use while in the possession of plaintiff, the defendant may refuse to accept or receive the property, and bring suit on the replevin bond. The measure of damages will be the value of the replevied property as found and adjudged in the replevin action, plus the costs therein, with interest.</p>

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

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

<p>1. Homestead: Abandonment: Inoombetenct. One whose mental faculties are so impaired that she is incapable of forming a clear intention to abandon her homestead will not be held to have done so merely because she departed therefrom and remained away for a short time, and until placed in an insane asylum.</p> <p>2. -: -: Burden of Proof. All presumptions are in favor of the preservation of the homestead, and, when it is sought to show its abandonment, the burden of proof rests upon the person who attacks the homestead interest.</p> <p>3. -: What Constitutes. A wife owned 80 acres of land, upon which was the dwelling-house and 15 acres of cultivated land. Her husband owned the adjoining 80 acres, on which 45 acres were under cultivation. The farm was operated as a whole and rented as a whole. Held, No rights of creditors being involved, that the whole 160 acres constituted the family homestead.</p> <p>4. Descent and Distribution. Where a person owning real estate dies, leaving a wife surviving, it descends, subject to his debts and the rights of homestead, one-half to the wife if there be no child, nor the issue of any deceased child or children, surviving, and, if the deceased leave relatives of his blood, the residue descends in the same manner and to the same persons as provided for the descent of real estate of deceased persons leaving no husband or wife surviving. Comp. St. 1907, ch. 23, sec. 1.</p> <p>5. Homestead: Rents and Profits. A wife is not, by virtue of the marriage relation alone, entitled to recover the rents and profits of a portion of the family homestead owned by the husband in fee simple, either before or after an attempted conveyance by him of the premises.</p> <p>6. -: Abandonment: Evidence. The evidence set forth in the opinion held to he insufficient to establish the abandonment of a homestead.</p>

<p>Wills: Testamentary Agreement: Specific Performance: Evidence. Where it is sought to establish an oral agreement to make a testamentary disposition of property and to set aside the provisions of a will in so far as they conflict with said alleged agreement, the proof to establish the existence of such oral agreement must be clear, convincing and satisfactory, in order to overcome the presumption that the testator acted in good faith in the execution of the will.</p>

<p>1. Appeal: Conflicting Evidence. Where the evidence is conflicting as to whether a cow that was hilled by a train got on the right of way through a gate negligently left open by plaintiff or by passing through a defective right of way fence and there is sufficient evidence to support the verdict, this court will not interfere, even though it might reach a different conclusion upon the same evidence.</p> <p>2. Trial: Instructions. A case will not be reversed on account of the giving of an instruction which is not based upon the evidence, where the jury has been properly instructed on the point at issue at the complainant’s reguest, and it is not apparent that prejudice has resulted.</p> <p>3. Pleading: Answer: Sufficiency. An answer which admits that a railway company “is now operating” the railroad, and does not specifically deny that it was the owner of or was operating the railroad at the time of the accident, is not sufficenit to raise the issue of its ownership of or operation of the railroad at that time.</p> <p>4. -: Amendment at Trial: Discretion of Court. Whether defendant shall be permitted to amend an answer after a trial has been begun is a matter within the discretion of the district court, and unless abuse of such discretion is shown the action of that court will be upheld.</p>

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

<p>1. Appeal: Directing Verdict: Review. In reviewing a direction to the jury to return a verdict in favor of plaintiff, the appellate court will • assume the existence of every material fact which the evidence on behalf of defendant establishes or tends to prove, and give him the benefit of proper inferences from such facts.</p> <p>2. -Bills and Notes: Defense of Pratjd: Burden of Proof. Where fraud in the inception of a note is pleaded as a defense and supported by proof, in an action by an indorsee against the maker, the burden is on plaintiff to show he is a bona fide holder.</p> <p>3. -: Bona Pide Purchaser: Question for Jury. In a suit on a promissory note, a peremptory instruction in favor of plaintiff on the ground that the note was purchased from an innocent holder is erroneous, where reasonable men may properly infer from all the facts and circumstances of which there is proof that the holder in making the purchase acted on behalf of plaintiff, who had actual knowledge of valid defenses.</p>

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

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

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

<p>1. Specific Performance: Parox Contracts. The rule is now well settled in this court that a parol contract will be enforced by a court of equity where one party has wholly and the other partly performed it, and its non-fulfillment on the one hand would amount to a fraud upon the party who has fully performed it.</p> <p>2. -: Agreement to Devise: Defense by Heirs. Where a husband and wife take into their family the infant child of a stranger, and either then or subsequently they jointly orally agree that, if such child will remain with them during their lives and render them faithful and obedient service as a child, they will, at their death, by will or otherwise, leave him all of the estate of which they die seized, held, that the statute as to homesteads cannot be pleaded by the heirs of either the husband or wife as a defense to a suit by such child for the enforcement of the parol contract.</p> <p>3. Contracts: Evidence. The evidence examined and set out in the opinion, held, that the parol contract in this case possessed the elements of certainty, and the proof establishing it is sufficiently clear and satisfactory.</p>

<p>1. Pormer Opinion Affirmed. Our former opinion, reported in 82 Neb. . 403, re-examined and adhered to.</p> <p>2. Instruction of the trial court, considered in the opinion, held erroneous, in that it is not based upon any competent testimony.</p> <p>3. Contracts: Breach: Evidence. Evidence examined and referred to in the opinion, held insufficient to sustain the judgment.</p>

<p>Opinion on motion for rehearing of case reported in 89 Neb. 840.</p>

<p>1. Homestead. Our statute uses the term "homestead” in its commonly accepted meaning — the house and land where the family dwells.</p> <p>2. -: Rights oe Creditors. The homestead is subject to execution sale upon judgments against the holder of the title if its value exceeds $2,000. This limitation is solely for the purpose of fixing the rights of the homestead claimants and the creditors, respectively.</p> <p>3. ; Descent. If the legal title to the homestead is in the husband, and there are no claims of his creditors against it, upon his death the homestead vests in the widow for life, without regard to its value, and in the absence of a will of the husband his heirs take the homestead subject to the life estate of the widow. Tyson v. Tyson, 71 Neb. 438, overruled.</p>

<p>Appeal from the district court for Box Butte county: William H. Wbstovek, Judge.</p>

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

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

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

<p>Justice of the Peace: Continuance: Review: Final Order. The continuance of a civil suit by a justice of the peace for more than 90 days from the return day of the summons, without the consent of the parties, is a discontinuance of the action, and therefore a final order, which may be reviewed by proceedings in error in the district court.</p>

<p>Homicide: Defense of Insanity: Evidence. Plaintiff in error was convicted of the crime of murder in the first degree and sentenced to death. On error to this court, no question of law as to procedure is presented. The defense was insanity at the time of the killing, and the case is presented upon the sole question of fact as to the accountability of the accused. Upon a review of the evidence, it is held, by a majority of the court, that the judgment and sentence should be affirmed.</p>

<p>1. Master and Servant: Vice-Principal. Whether an employee occupies the position of a fellow-servant to another employee, or is the representative of the master, is not to be determined from the grade or rank of the offending or injured servant, but should be determined by the character of the act performed by the offending servant, by which another employee is injured; or, in other words, whether the person whose status is in question is charged with vthe performance of a duty which properly belongs to the master.</p> <p>2. -: Negligence: Liability of Master. Where a master, instead of performing a duty which is personal to himself, directs an employee to perform that duty, he is liable for the neglect of that other, no matter what may be the position of the employee as to other matters.</p> <p>3. Appeal: Instructions: Harmless Error. Where it clearly appears that the plaintiff in an action for personal injuries was not guilty of contributory negligence, the submission of that question to the jury by an erroneous instruction is error without prejudice to the rights of the defendant.</p>

<p>1. Highways: Maintenance: Liability oe County. The road law oJE this state does not require a county or municipality to guarantee the safety of its highways and streets, but it is required to keep them in a reasonably safe condition for public travel.</p> <p>2. --: -: -. For a county to allow an open ditch, nearly a mile in length, and from 6 to 8 feet wide, with a depth of from 26 to 34 inches, to be and remain for many years in the center of one of its public roads may render it liable for an injury caused thereby.</p> <p>3. -: -: -. Where injuries result to a traveler upon such highway, caused by the combined effect of the county’s neglect and an accident, such as the sudden fright of an ordinary gentle farm team of horses, for which the driver is in no way to blame, the county is liable for the injuries thereby sustained.</p> <p>4. Appeal: Instructions: Harmless Error. Where it clearly appears that the plaintiff in an action for personal injuries was not guilty of contributory negligence, the submission of that question to the jury by an erroneous instruction is'error without prejudice to the defendant’s rights.</p>

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

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

<p>1. Appeal: Becord. Affidavits used on the hearing of a motion for a new trial cannot be considered in this court unless preserved in a bill of exceptions.</p> <p>2. Pleading. Where a petition in an action for personal injuries sets out the facts, it is unnecessary to plead the legal conclusion to be drawn therefrom.</p> <p>3. Appeal: Conflicting Evidence. Where the verdict of a jury is reached upon conflicting evidence sufficient to sustain a recovery in favor of either party, this court will not disturb the verdict.</p>

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

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

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

<p>Carriers: Delay in Shipment. Verdict against a carrier for damages resulting from delay in transporting live stock to market held sustained by the evidence.</p>

<p>Divorce: Extreme Cruelty. Decree granting a husband a divorce on the ground of extreme cruelty affirmed as a proper disposition of the case under the evidence.</p>

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

<p>Appeal from the district court for Box Butte county: William H. Westovicr, Judge.</p> <p> Affirmed. </p>

<p>1. Statutes: Title of Act: Mills. The title of the act of 1873 (Gen. St. 1873, ch. 44, Comp. St. 1911, ch. 57), “An act relating to mills and milldams,” is sufficiently broad to admit of legislation in regard to mills of all kinds that are of public utility and having “machinery to be propelled by water.”</p> <p>2. Quaere. Whether the provisions of that act extend to mills such as “saw, carding, or fulling mills,” when wholly private in their nature, queere.</p> <p>3. Eminent Domain: Public Utilities: Question for Legislature. Whether an undertaking is for the benefit of tho people at large, and should be regarded as of public utility, must necessarily be largely within the discretion of the legislature to determine, and, unless it is clearly private in its nature, the court will not interfere with this legislative discretion.</p> <p>4.-: -: Water Power. The use of water power to generate electricity to supply a city and its inhabitants with light and power is a public use, and the act should be construed to apply in such case.</p> <p>5. -: -: Change of Use. When the right of flowage of private lands has been acquired under the ad quod damnum act for a public purpose, if the use of that right is changed to an entirely different and private purpose, it will amount to an abandonment of the right, but a change from one public use to another, which is within the purview of the act, will not amount to an abandonment of the right.</p> <p>6. -: Flowage: Remedies of Landowners. Owners of riparian lands which are injured by flowage, and were not included in the original ad quod damnum proceedings, may proceed under section . 14 of the act. Gen. St. 1873, ch. 44. After the dam has been built at great expense and the mill has been in operation for many years, they cannot maintain an action in equity to abate the dam as a nuisance, or to restrain the use thereof until their alleged damages are adjusted.</p> <p>7.-: -: -: Damages. In an action in equity by the owners of riparian lands to enjoin the use of the water power and remove the dam as a nuisance, and for general equitable relief, the trial court should adjust the rights of the several parties, and, if the injunction is refused, should allow plaintiffs such damages as they are entitled to.</p> <p>8. -: -: -: --. In such action, plaintiffs whose lands were not included in the original ad quod clamnum proceedings should he allowed such damages- as are caused by maintaining the dam; and those whose lands were included in the original proceedings should be allowed such damages, if any, as the new and additional use of tne dam and power cause to their lands over and above the damage caused by the dam and the use thereof, as allowed in the original proceedings.</p>

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

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

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

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

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

<p>1. Adverse Possession: Evidence. It is shown by the uncontradicted evidence that defendant has been in the open, continuous and exclusive possession of the land in question for more than 10 years prior to the commencement of an action in ejectment, claiming to be the owner thereof, and that during said time plaintiff occupied and owned adjoining land and recognized defendant’s possession as such owner, and that during all of said time plaintiff might have instituted an action contesting defendant’s right. Held, That the statute of limitations had run in favor of defendant, and that ejectment could not be maintained.</p> <p>2. -: -. The fact, if true, that the land involved in litigation was not correctly described in defendant’s muniments of title would not prevent the running of the statute of limitations in his behalf, as between him and another claimant, there being no question of the identity of the particular land occupied and claimed by him.</p> <p>3. Appeal: Verdict: Evidence. “If a verdict is the only one justifiable by the evidence, instructions to the jury will not he examined.” KieTbeck v. Chicago, B. & Q. R. Co., 70 Neb. 571.</p>

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

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

<p>Mortgages: Foreclosure: Names. Where one takes title to real estate by his initial letters as his first name, subject to a mortgage then existing, the mortgage may be foreclosed and notice given him by publication by such name.</p>

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

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

<p>1.- Appeal: Firdirgs. Where an action at law is tried in the district court without a jury, findings of fact have the same force as a verdict.</p> <p>2. Parol Evidence: Sales by Sample. Oral warranties made by an agent or traveling salesman, that the goods sold would be equal to the samples exhibited by him in procuring an order for the sale of goods, may be shown by parol, in a proper case, though the order contained the provision that the principal will not be hound by terms not in the written order.</p> <p>3. Sales: Refusal to Accept. Independently of an express contract, a. purchaser by sample may refuse to receive the goods when delivered, if they fail to correspond to the sample. National Engraving Co. v. Queen City Laundry, ante, p. 402.</p>

Original application in quo loarranto to oust respondents from the office of fire and police commissioners of South Omaha.

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

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

<p>Estoppel By Deed. Stratton v. McDermott, 89 Neb. 622, reexamined, reaffirm'ed, and the ease at bar held ruled thereby.</p>

<p>1. Evidence: Secondary Evidence. “What the law requires is the production of original evidence, the best evidence obtainable; secondary evidence being admissible only when for some reason primary evidence cannot be secured.” Bonner v. State, 69 Neb. 56.</p> <p>2. -: -: Fraud at Election: Misreading Ballots. In the prosecution of a judge of election under an information charging him with having wilfully and wrongfully misread the ballots cast at a general election, the ballots cast at such election are the best evidence of how and for whom they were cast; and, unless it be first shown that such ballots have been lost, or so mutilated as to render them inadmissible as evidence, secondary evidence of such facts is not admissible.</p>

<p>1. Insurance: Statutory Provisions. The act of 1873 (Gen. St. 1873, eh. 33, p. 428), entitled “An act regulating insurance companies,” applies to all kinds of insurance in this state, except life insurance, which is expressly omitted from the operation of that act.</p> <p>2. -: License. All companies whose object is to transact insur anee business in this state must obtain license as the statute provides.</p>

<p>1. Statutes: Titles: “Bulk Sales Law.” Sections 31, 32, ch. 32, Comp. St. 1911, commonly known as tlie “Bulk Sales Law,” are not unconstitutional as legislating upon a subject not clearly expressed in the title.</p> <p>2. -: -: -. .The act makes all such sales void as to creditors, unless certain specified conditions are complied with. The conditions imposed cannot be considered as separate subjects of legislation, within the meaning of section 11, art. Ill of the constitution.</p> <p>3. Constitutional Law: Due Process of Law. The act does not violate section 3, art. I of the constitution, which provides: “No person shall be deprived of life, liberty or property without due process of law.”</p> <p>4. -: Class Legislation. The act applies to all people of the state who engage in the business designated. The classification is not arbitrary and unreasonable, so as to make the act special or class legislation, forbidden by the constitution.</p> <p>5. Garnishment: Purchaser of Merchandise in Bulk. One who obtains possession of a stock of merchandise pursuant to a purchase thereof in bulk, in violation of the statute, will be held to be a trustee for the benefit of the creditors of his vendor, and liable as garnishee.</p>

<p>1. Appeal: Refusal of Continuance. Alleged errors of the trial court in refusing a continuance will not be considered upon plaintiff’s appeal, when the plaintiff, after such continuance was- refused, dismissed her action, and the cause was afterwards tried solely upon the cross-petition of one of the defendants, and no further application was made for a continuance and no showing of any necessity for a continuance upon the trial of the issue presented in the cross-petition.</p> <p>2. -: Suit in Equity: Evidence. The rule that, upon appeal in an action in equity tried before the judge of the district court, it will be presumed that the court decided the case solely upon competent evidence, and that no alleged errors in receiving incompetent testimony will be considered in this court, is well established and never departed from.</p> <p>3. Injunction: Multiplicity of Suits. A court of equity may enjoin a plaintiff from bringing successive actions for the same alleged cause against the same parties. If such action is begun and, when ready for trial upon issues joined, is dismissed by plaintiff, and immediately recommenced and again dismissed by plaintiff when ready for trial after the issues have been made by the parties, another action for the same alleged cause against the same parties should be enjoined, in the absence of any evidence of good faith on the part of the plaintiff in so doing.</p> <p>4. -: -. If an action at law has proceeded to judgment, and one of the parties afterwards brings successive vexatious suits in equity to obtain a new trial, dismissing her -case and immediately recommencing it, the defendant will not be required to further establish her legal rights in the controversy before obtaining upon cross-petition in the action in equity an injunction restraining the plaintiff from further dismissing and recommencing such action.</p> <p>5. Equity: Relief. When a court of equity has taken jurisdiction of the principal matter in controversy between the parties, it will dispose of the whole matter, and prevent further unnecessary litigation.</p> <p>6. Judgment: Res Judicata: Parties. A decree in equity is binding only upon parties to the action; but the matters determined by the decree cannot again be litigated against a party to the trial on the ground that she is jointly liable with others who were dismissed from the action before trial.</p>

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

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

<p>1. Parol Evidence: Admissibility. “Evidence tending to establish a separate oral agreement between the parties to a written contract, as to matters upon which such contract is silent, if it does not tend to vary or contradict the terms of the written document, is adfnissible.” Huffman v. Ellis, 64 Neb. 623.</p> <p>2. Trial: Instructions. The instructions examined, and held not to be prejudicial to the defendant.</p>

<p>Appeal from the district court for Lancaster county: P. James Oosgrave, Judge.</p>

<p>1. Master and Servant: Assumption of Risk. One who contracts to perforin labor for another takes upon himself the assumption of such risks only as are necessarily and usually incident to the employment.</p> <p>2. ---: -: Duty of Master. If the employer has knowledge that the particular employment is, from extraneous causes, hazardous or dangerous to a degree beyond what it fairly imports or is understood by the employee to be, he is bound to inform the employee of the fact, and, if he fails so to do, he is liable to the employee, or his representatives, for such damages as may result by reason of such cause.</p> <p>3. Pleading: Sufficiency After Trial. It was alleged in the petition, in substance, that plaintiff’s intestate, an employee of defendant, was killed by coming in contact with a broken guy wire, heavily charged with electricity, near defendant’s place of business, and in the line or track which defendant’s employees usually traveled in entering and leaving their place of employment; that defendant knew of the dangerous condition of the wire, but negligently failed to and omitted to remove the danger or warn the decedent of its existence, and the death resulted without negligence on the part of the decedent. Held, That when attacked for the first time after judgment, the petition would be liberally construed, and held to state a cause of action.</p>

<p>1. Adverse Possession. “One who has been in the open, notorious, exclusive adverse possession of real property for ten years becomes vested with a valid title to the same.” Oity of Florence v. White, 50 Neb. 516.</p> <p>2. -: Evidence. Evidence of the possession of real property “as owner” is not limited to the declarations or testimony of the claimant under the statute of limitations. The character or quality of the possession and use may be considered as the test.</p> <p>3. Appeal: Harmless Error. The fact that the trial court erred in a part of its finding and decree, and the error is in favor of the otherwise losing party, and does not inhere in the. general decree in favor of the successful party, and is without prejudice to the appellant, will not require a reversal of the decree.</p>

<p>1. Officers: De Facto Officers. Where a person who has been appointed to an office qualifies for the position, assumes the duties of the office, is actually engaged in the discharge of its functions under color and claim of right to the office, acquiesced in by the public during all of the time of his occupancy, such officer will at least be deemed and held to be a de facto officer. Dredla v. BaacJie, 60 Neb. 655.</p> <p>2. -: Claimants: Right to Compensation. Where a de facto officer has discharged all the duties of a state office, has been recognized by the state accounting officers as properly and legally holding the office, paid the salary for the full time out of an appropriation made for that purpose, thus exhausting the fund, a claimant of the office who discharged none of its duties cannot, after the expiration of the term, enforce the payment to himself of the salary from the state. The fact that the claimant was deprived of the right to the office by an injunction wrongfully issued out of the circuit court of the United States, and which was subsequently set aside by the supreme court of the United States on appeal, would not affect the rights of the state in an action by the • claimant to recover the salary, the same having been paid to the person who performed all the duties of the office under a claim of right, and whose incumbency was acquiesced in by the state officers and the public.</p> <p>3. -: Qualification: Secretary State Banking Board. The law requires the secretary of the state banking board to give an official bond for the faithful performance of the duties of the office. The giving and depositing of the bond in the office of the secretary of state is a prerequisite to the holding of the office and the discharge of its duties. Where an appointee to such office executes his bond, files it with the secretary of state, but later withdraws it, leaving no bond in its stead, and discharges none of the duties of the office, he is not entitled to the salary, another having discharged all the official duties under a claim of right and having been recognized by the state and the public as such officer, the salary having been paid to him by the accounting and disbursing officers of the state.</p> <p>4. States: Salaries of Officers: Payment. The state pays a salary but once, if paid through the regular channels provided by law for the payment thereof, and by which the appropriation for that purpose is exhausted.</p>

<p>1. Counties: Claims: Deduction op Personal Taxes. The provisions of section 4466, Ann. St. 1911, confers upon the county board the authority to deduct delinquent personal taxes from claims allowed against the county, and “issue a warrant for the balance remaining.” The law requires the deduction to he made by the board, and it has no authority to delegate that duty to another.</p> <p>2. -: -: -.. In the settlement and allowance of claims against a' county, the hoard acts judicially, and this includes the matter of the deduction of delinquent personal taxes from the. amount found due upon the claim and rendering judgment for the “balance remaining.”</p>

<p>Appeal from the district court for Lancaster county: P. James Cosgrave, Judge.</p>

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

<p>Error to the district court for Madison county: Anson A. Weeoh, Judge.</p>

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

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

<p>1. Drains: Right to Cross Highways: Statute: Constitutionality. Section 24, art. V, ch. 89, Comp. St. 1911, providing as to drainage districts organized under that article that “said district may dig ditches and drains under and across railroads and public highways,” is not unconstitutional, as violative of the provision that “the property of no person shall be taken or damaged for public use without just compensation therefor.” Const., art. I, sec. 21.</p> <p>2. -: -: Conditions. The legislature may grant drainage districts' the right to cross highways, and if it imposes no conditions for the exercise of this right the county authorities can impose none.</p>

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

<p>1. Drains: Highway Crossings: Duty to Maintain. Under section 23, art. IV, ch. 89, Comp. St. 1911, drainage districts organized under that article are charged with the duty of restoring a public highway which they cross “to its former state as near as may be, or in a sufficient manner not to have impaired unnecessarily its usefulness.” Held, That this provision does not operate to relieve such districts from the duty imposed by common law and by section 110, art. I, ch. 78, Comp. St. 1911, to “make and keep in good repair good and sufficient crossings on all such roads.”</p> <p>2. -: -: Bridges: Duty to Maintain. That where a new channel has been made by the drainage district for a stream which has been bridged by the public authorities, if the new channel and bridge relieve the county of the burden of maintaining the old bridge, the new bridge should be maintained by the public, and not by the drainage district.</p>

<p>1. Bills and Notes: Negotiable Instruments Act. The negotiable instruments act (Comp. St. 1905, ch. 41) does not apply to negotiable instruments executed and delivered before it went into effect.</p> <p>2. -: Assignment: Defenses. While an assignment indorsed on the back of a mortgage or on a separate slip of paper may be effective to transfer the equitable title to the note secured, it is not a commercial indorsement cutting off defenses which would have been available to the maker of the note in a suit against him by the original payee.</p> <p>3. Evidence: Decree: Admissibility Pending Appeal. Where the giving of a supersedeas bond and the perfecting of an appeal stay proceedings until there has been a trial de novo in the appellate court, the superseded decree, pending appeal, is not admissible in evidence to prove a final adjudication binding on the parties or determining their rights.</p> <p>4.--: -:---. Where a party whose rights are affected by a decree in a former suit pleads, in a subsequent action, that the decree is not final and that he intends to appeal, and introduces in evidence a supersedeas bond obligating himself to prosecute his appeal to effect without delay, he cannot, in such a state of his pleadings and proof, use the superseded decree as evidence of a final adjudication binding on the parties or determining their rights.</p> <p>5. Appeal: Evidence: Review. The supreme court must consider an appeal on the evidence before the trial court, except in the rare instances where new matter arising after the entry of judgment is brought into the case by supplemental proceedings.</p> <p>6. -: New Evidence. After an appeal has been taken from the district court to the supreme court, new facts of which the trial court had no knowledge will not be introduced into the record by judicial notice.</p> <p>7. Evidence: Judicial Notice: Records. While a court will take judicial notice of its own records, it will not in one case take judicial notice of the records in another case.</p>

<p>1. Street Railways: Vehicles: Rights at Street Intersections. At a street intersection, neither the operator of a street car nor the occupant of a private conveyance has a superior right to cross, but each must exercise his right and perform his duty with due regard to the safety and convenience of the other, and both must act in a reasonable and careful manner.</p> <p>2. -: Negligence: Evidence. Proof of the running of a street car at an excessive speed across a public street, or of the failure to give proper warning of its approach, is evidence tending to show negligence.</p> <p>3. -: -: -. In a suit against a street car company for negligently running a street car into a buggy at a public crossing, proof that the car ran more than 150 feet after the collision before it could be stopped, though the brake had been firmly applied, is evidence tending to show excessive speed.</p> <p>4. Witnesses: Competency. “A witness who sees a moving car, and possesses a knowledge of time and distance, is competent to express an opinion as to the rate of speed at which the car was moving.” Omaha Street R. Oo. v. Larson, 70 Neb. 591.</p>

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

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

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

<p>1. Judgment: Res Judicata. “A cause of action, once finally determined between tbe parties on the merits, cannot afterwards, so long as such judgment remains in force, be litigated by new proceedings, either before the same or any other tribunal.” Yates v. Jones Nat. Bank, 74 Neb. 734.</p> <p>2. -: -. “The foregoing rule applies, not only to judgments which are the result of a trial of issues of fact, but also to judgments on demurrer, where such judgments go to the merits of the case; but a judgment on a demurrer, which is based on a technical defect of pleading, a lack of jurisdiction, or the like, does not involve the merits of the controversy, and will not support the plea of res judicata." Yates v. Jones Nat. Bank, 74 Neb. 734.</p>

<p>1. Witnesses: Competency: Principad and Agent. The fact that an agent of a party to an action is deceased at the time of the trial does not render the other party an incompetent witness by whom to prove a transaction' with such agent during his lifetime and while engaged in the business of his principal.</p> <p>2. Payment: Authority oe Agent. “Where one has placed his agent for the investment of money in notes and mortgages in such a situation that persons of ordinary prudence, acquainted with business usages, would be justified in regarding such agent ás having full authority with reference to the extension, collection, etc., of such notes and mortgages, payment to such agent will be deemed payment to the principal.” Harrison Hat. Bank v. Austin, 65 Neb. 632.</p> <p>3. Principal and Agent: Authority oe Agent. Whether or not an act is within the scope of an agent’s apparent authority is to be determined as a question of fact from all the circumstances of the transaction and the business.</p> <p>4. Evidence examined and set out in the opinion, held, amply sufficient to sustain the findings and judgment of the district court.</p>

<p>1. Principal and Agent: Authority oe Agent: Evidence. “That the party to whom money due another is paid is not in possession of the instruments by which the indebtedness is evidenced is not conclusive of the question of the authority, or lack of it, in the party receiving the money to collect it, but is a circumstance or fact to be considered in the determination of such question.” Thomson v. Shelton, 49 Neb. 644.</p> <p>2. -: Payment : Negligence. Nor is the fact that the payor of a note pays the amount thereof to the payee or his agent, without demanding a cancelation and return of the note, conclusive evi dence of negligence on the part of the payor in making such payment, but the question of negligence or want of negligence is to be determined as a question of fact from all the circumstances of the transaction and the relation of the parties at the time.</p> <p>3. Paragraphs 2 and 4 of the syllabus in Walker v. Sale, ante, p. 829, applied to this case.</p>

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

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

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

<p>1. Husband and Wife: Alienation oe Wife’s Affections: Evidence. In an action for damages for the alienation of the affections of the plaintiff’s wife, she not being a party to the action, evidence of admissions made by her are incompetent. A witness testified that he saw plaintiff’s wife coming out of the house of defendant, and after he followed her a short distance she made admissions in answer to statements of the witness. Held, That such admissions were not competent as res gestee,</p> <p>2. -: -: Damages: Evidence. In such action, evidence that plaintiff mistreated his wife, and was intimate with other women during the time in which he alleges that her affections were alienated, is competent as affecting the measure of damages; and when he testifies to injuries to his feelings, mental suffering, and such like matters as enhancing his damages, he may properly be cross-examined as to his conduct tending to show his failure to appreciate and value her affection for him.</p> <p>3.-: -: Evidence. In such, action, evidence that the defendant assisted plaintiff’s wife in procuring a divorce, in furtherance of his main design to alienate her affections, is competent as a circumstance tending to prove the main issue. Such evidence should not be submitted to the jury as establishing a cause of action in itself.</p> <p>4. -: -: Malice. When her parent, or one to whom the wife naturally looks for advice, counsels her as to the best course to pursue relative to her marital trouble, the question of good faith or malice on the part of her adviser is important and calls for an instruction to the jury upon that point. When a stranger interferes in the family affairs of others, there is no presumption of good faith. In the latter case, an instruction that it is necessary to prove malice, and that the law presumes malice from wrongful acts, is unnecessary and improper.</p>

<p>1. Taxation: Listing Property. One who takes cattle and hogs upon his farm to keep and feed for a nonresident of the county has control of them for the owner, within the meaning of section 10927, Ann. St. 1911, and is required to list such property for taxation.</p> <p>2. -: Injunction. If such stock is assessed in the name of the person so in control of such stock on the 1st day of April, and he purchases the same after that date, but before they are actually assessed, and afterwards disposes of the stock, he cannot enjoin the collection of the tax against his property generally on the ground that he was not the owner of the stock on the 1st day of April.</p>