Volume 94 — Nebraska Reports

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

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

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

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

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

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

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

<p>1. Highways: Establishment: Notice: Appearance. One who appears at the hearing on the petition for the establishment of a public road and takes part in the proceedings cannot after complain that he did not receive notice in the legal manner.</p> <p>2. -: Location: Variations. It is not essential that a public road be laid out upon the exact line prayed for in the petition, and slight variations in order to procure a more practicable route are permissible.</p>

<p>1. Pleading: Demurrer: Admissions. A demurrer to a pleading admits only such facts as are well pleaded, mere conclusions of the pleader not being admitted.</p> <p>2. Appeal: Review. The objection that an unverified pleading, which has been superseded by an amended pleading, is inadmissible in evidence against the pleader, to be available on review, should be made in the trial court.</p> <p>3. -: Instructions: Harmless Error. In a suit on a note, an instruction withdrawing from the jury the defense of want of consideration held not erroneous, where defendants by their own testimony proved a valid consideration.</p>

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

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

<p>Opinion on motion for reheáring and to retax costs of case reported in 93 Neb. 358.</p>

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

<p>1. Errors assigned, but not shown in the abstract, will not be considered.</p> <p>2. Appeal: Conflicting Evidence. A verdict based upon conflicting evidence, and approved by the trial court, will not be disturbed, unless manifestly wrong.</p>

<p>1. Sales: Condition: Return oe Goods. If a manufacturer sells goods to a retail dealer ■with, a condition in the contract that the dealer may return anything that is not entirely satisfactory, he cannot complain if the dealer, upon receipt of the goods, makes a reasonable attempt to dispose of the same before availing himself of the condition of return.</p> <p>2. Review. The record examined, and found to contain no prejudicial error.</p>

<p>Appeal: Record. Tlie condition of the record, as shown in the opinion, held to contain no prejudicial error.</p>

<p>Appeal: Affirmance. “Where the verdict returned is clearly right and is the only one warranted by the evidence, the judgment will be affirmed, although errors may have intervened at the trial.” United States School-Furniture Go. v. School District, 56 Neb. 645.</p>

<p>Error to the district court for Thayer county: Leslie G-. Hijrd, Judge.</p>

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

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

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

<p>Opinion on motion, for rehearing of ease reported in 93 Neb. 586.</p>

<p>1. Brokers: Commissions. One who is employed by another to sell specified property at a stated price and for an agreed compensation for making snch sale, but has no exclusive contract of agency, other persons with his knowledge being likewise authorized to make such sale with the same agreement as to compensation, cannot recover the stipulated commission upon sale being made by others so employed, although his own efforts may have contributed to the result.</p> <p>2. -: Action fob Commission: Pleading. Neither the pleadings nor the evidence in this case will support a judgment for the value of the plaintiff’s services in assisting to make a sale of the property.</p>

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

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

<p>1. Carriers: Ejection oe Passenger. It is the duty of the conductor and employees of the company in charge of a street car to maintain order and protect the passengers from insult and annoying disturbances such as loud talking; swearing and singing of boisterous and improper songs in the car. If a passenger refuses to refrain from such conduct, the conductor may remove him from the car, and may use such reasonable force as is necessary for that purpose.</p> <p>2. -: -: Prejudicial Instructions. Instructions quoted in the opinion are held to be misleading and prejudicial under the issues and evidence in this case.</p>

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

<p>Adverse Possession: Evidence. In an action to quiet title, if it appears that plaintiff has had possession of the land for much more than 10 years under 'a purchase for full value and claim of title, and that he and his grantors have regularly paid all taxes that have ever been assessed against the land, one witness testifying that plaintiff has had exclusive, adverse occupancy for many years, without specifying the number of years, and there is no cross-examination nor evidence that any one else has ever had or claimed any possession, a finding that plaintiff has title by adverse possession will not be reversed solely on the contention that no witness has testified that plaintiff’s possession was exclusive and adverse during the whole time that he so held the land.</p>

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

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

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

<p>Elections: Expenses: Mileage Fees. Where the plaintiff, who was the clerk of the election board, carried the election returns from the polling place to the county seat, Where he delivered them to the county clerk, and in going to and returning from the county seat he “traveled over the only available route between said places, a distance of 331 miles,” and the route was the shortest railroad route between such points, "and said route was and is the route generally traveled by people between said places,” and the shortest distance traveling by team “is a distance of 60 miles through the sand-hill country,” and "ordinary traveling by team in ordinary weather takes * * * a day and a half to make the trip, or three days to make the round trip,” and by the railroad route actually traveled “it took plaintiff eight hours to make the trip,” and before returning it would be necessary to remain over in the county seat 33 hours, and the foregoing facts were stipulated, and on a trial in the district court without a jury the court rendered judgment for plaintiff upon his claim for mileage by the railroad route at 5 cents a mile, this court will not declare that the distance was not “necessarily traveled,” or that the district court erred in so holding.</p> <p>Fawcett, J. I cannot approve this syllabus.</p>

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

<p>1. Trusts: Conveyance of Land: Ratification. In 1893 plaintiff and her husband deeded the land in controversy to D. by general warranty deed, and the deed was soon thereafter recorded. From that time to the commencement of this action, in 1909, no taxes were paid by plaintiff, nor any acts of ownership over the land asserted by the grantors in the deed to D. An action was brought by the county to foreclose the lien for taxes, a decree of foreclosure entered, the land sold at sheriff’s sale to R. for $103.14 more than the taxes, interest and costs, and the surplus was paid into the hands of the clerk of the court. Subsequently D. applied to the court for an order directing the clerk to pay the surplus to him. The order was entered, the money paid as directed, and received by D. At the time of the execution of the deed to D. a bank, of which he was the president, held the promissory note of plaintiff and her husband for quite a large sum. The $103.14 was credited upon this indebtedness. Subsequently plaintiff had a settlement and adjustment with the bank and D., in which the $103.14 was accounted to her as a credit. Held, a ratification of the conveyance to D., and that plaintiff was not entitled to recover the land more than 16 years after the conveyance.</p> <p>2. Taxation: Fobeclosuee of Lien: Right of Redemption. Held, also, that D. prior to the commencement of this action having conveyed his interest in the land to R., who was from the date of the purchase in possession thereof, plaintiff was not entitled to redeem from the foreclosure sale for taxes.</p> <p>3. Trusts: Evidence. The evidence detailed in the opinion held to sustain the decree of the district court in favor of defendants D. and K.</p>

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

<p>Opinion on motion for rehearing of case reported in 92 Neb. 755.</p>

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

<p>1. Municipal Corporations: Powers: Electric Light Plant. A city or village has the power, under the provisions of section 8704 et seq., Ann. St. 1911, to construct and operate a municipal electric light system for the purpose of furnishing lights to the city and the inhabitants thereof.</p> <p>2. -: -: -. Under our statutes the city may use the engines and power of an electric light plant to pump water for the use of the city and its inhabitants.</p> <p>3.-: -: -: Liability. In constructing such a system, due regard must be given to the rights of the owners of the present system. The municipal system should be so constructed as not to unnecessarily interfere with the property right' of the owners of the present plant, and in case of necessary interference the city will be liable for the injury sustained.</p> <p>4. -: -: --■: Injunction. The city having denied that it will construct its light plant in such a manner as to interfere with the property rights of the owners of the present system, and introduced proof to sustain that allegation, held that plaintiffs are not entitled to enjoin the construction of the municipal plant before there is actual or threatened interference.</p>

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

<p>1. Appeal: Damages. Where the evidence is conflicting as to the damages to a farm by reason of the establishment of a highway, and the amount of recovery is consistent with the testimony „ i the part of the county, the verdict will not be disturbed merely on account of the smallness of damages.</p> <p>2. -: Misconduct oj? Attorney. While it is improper for counsel to state to the jury the amount of damages allowed by the county board, held that the circumstances set forth in the opinion did not injuriously affect the substantial rights of the plaintiff.</p> <p>3. Highways: Establishment: Damages: Evidence. A proposed road divided a pasture into two tracts, one of which was thus cut off from a supply of water for the cattle. No agreement was shown between the county authorities and the landowner for a connecting runway, and it was shown that a new water supply would cost several hundred dollars. The amount of the verdict indicates that no allowance was made for a new water supply. At the trial the county was permitted to show that a bridge could be constructed by it so as to allow a sufficient runway. Held prejudicial error.</p>

<p>Parent and Child: Adoption: Proceedings: Validity: Estoppel. While, under the provisions of section 800 of the code, a person desiring to adopt a child should file the petition for adoption in the county of his residence, and the county court of another county should refuse to receive and file the same, yet, the statute being enacted for the benefit of the child, in a case where the facts are that all the interested parties appeared before the county court of another county, and agreed, on the one side, to relinquish the child, and consented to its adoption on condition that it should have the full rights of heirship as if born in wedlock, and, on the other, to adopt and make it an heir, and the child is surrendered to the custody of, and remains in the family of. the adopting parent until the death of that parent, which occurred while the child was of tender years, the collateral heirs of the deceased adopting parent are estopped to deny the validity of the adoption proceedings and that the child is entitled to inherit.</p>

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

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

<p>1. - Appeal: Assignments of Error. The judgments of the district courts of this state are presumed to be correct, and counsel assailing the correctness of the same must assume the burden of pointing out specifically the rulings of which they complain and the mistake made by the trial court.</p> <p>2. -: Immaterial Evidence. A case tried to the court without the intervention of a jury will not be reversed on account of the introduction of immaterial testimony, if there is sufficient competent and material evidence in the record to sustain the judgment.</p>

<p>Rehearing of case reported in 92 Neb. 354.</p>

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

<p>1. Equity: Jurisdiction: Multiplicity of Suits. To prevent a multiplicity of suits against an irrigation district, a court of equity may acquire jurisdiction to cancel void district bonds in the hands of many different holders.</p> <p>2. Waters: Irrigation District Bonds: Cancelation. Void bonds illegally issued by officers of an irrigation district to pay for excavating a canal may be canceled without requiring the district to pay the holders of the bonds the reasonable value of services performed, where the contract for such work was made in violation of statute, and resulted in no benefit to the district.</p> <p>3. -: -: Validity. Bonds of an irrigation district are void, if issued in violation of mandatory legislation that they shall be signed by the secretary of the district, that the seal of the district shall be attached, that they shall be paid in instalments maturing at different times, that they shall be numbered consecutively as issued, and that they shall bear date from the time of their issuance.</p> <p>4. -: -: -: Ratification. An irrigation district, by paying interest on void bond? with taxes levied for that purpose, does not thereby ratify the bonds or estop itself from assailing them as illegal.</p> <p>5. -: -: -. In a statutory proceeding, an order confirming the preliminary steps leading up to the execution of bonds of an irrigation district does not affect a subsequent, unlawful negotiation or transfer of the bonds.</p> <p>6. -: -: Bona Fide Purchasers. A person who negotiates for the purchase of bonds executed by an irrigation district and enters into a contract to excavate a canal in exchange for such bonds is required to take notice of the statutes governing the district and of the limitations of its officers.</p>

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

<p>Bills and Notes: Defenses: Gaming. Record examined, and tlie case held to be ruled by Smith v, Columbus State Bank, 9 Neb. 31.</p>

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

<p>1. Parol Evidence: Deeds: Consideration. The true consideration for a deed of conveyance of real estate may be shown by parol evidence, although the deed recites a consideration.</p> <p>2. Trusts: Resulting Trusts: Limitations. When the property of an infant is sold and the proceeds invested in other property, the title to which is taken in the name of a friend of the infant who transacted the business, a resulting trust arises in favor of the infant. The statute of limitations will not begin to run against an action by the cestui que trust after becoming of legal age until she has notice that the trustee denies her right in the property.</p> <p>Appeal: Equity: Trial De Novo. In an action in equity this court is required upon appeal to try the cause de novo upon the pleadings and evidence, and determine the matter independently of the judgment of the trial court. Upon the evidence in the record, the decree is reversed, with directions to enter a decree in favor of the plaintiff.</p>

<p>1. Judges:'police Magistrate: Term of Office. The office of police magistrate in cities of the second class having more than 5,000 and less than 25,000 inhabitants is created and the length of the term fixed by the constitution. The legislature cannot change the length of the term, nor remove the incumbent by legislation before the expiration of his term.</p> <p>£. Elections: Police Magistrate: Time of Election. The provision of the constitution (art. XVI, sec. 13), fixing the time of holding general elections, and what officers shall be then elected, excepts “school district officers, and municipal officers in cities, villages and towns;” police magistrates in cities of the second class being municipal officers, the legislature may by statute provide the time of their election.</p>

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

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

<p>1. Habeas Corpus: Venue: Custody of Child. An application for a writ of habeas corpus by a parent to recover the possession oí his minor child may be brought in the district court in the county where the unlawful detention takes place. Whether it may also be brought in the county where the relator resides is not decided.</p> <p>2. Parent and Child: Surrender of Custody of Child: Repudiation of Agreement. A father can, by his agreement in writing, surrender the custody of his infant child to another, so as to make the custody of that other legal, and he cannot thereafter repudiate such agreement and retain the custody of his child, unless he can show a clear breach of the agreement, or an abuse of the child, or that the best interest of the child requires it.</p> <p>3. -: Custody of Child: Evidence. Evidence examined, its substance stated in the opinion, and hela that it is for the best interest of the child to remain in the custody of the respondents.</p>

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

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

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

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

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

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

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

<p>1. Appeal: Exclusion of Evidence: Harmless Error. The exclusion of competent evidence at one stage of a trial is not prejudicially erroneous if the facts sought to be proved are subsequently established.</p> <p>2. Bills and Notes: Action: Defense of No Consideration. Under the facts stated in the opinion, held that the defense of no consideration was not established.</p>

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

<p>Appeal: Findings: Conflicting Evidence. A finding of the trial court, if sustained by sufficient evidence, in an action at law tried without a jury, will not be set aside on appeal, where the controverted issue was determined on substantially conflicting evidence.</p>

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

<p>1. Pleading: Striking Part of Answer. In a suit on a note, it is not prejudicial error to strike from the files all of the answer, except an admission of the execution, delivery and nonpayment of the note, where no defense or proper counterclaim or set-off is pleaded.</p> <p>2. -: Judgment on Pleadings. In a suit on a note, a motion in favor of plaintiff for judgment on the pleadings may be sustained, where the execution, delivery and nonpayment of the note are admitted in an answer pleading no defense or proper counterclaim or set-off.</p>

<p>Information: Intent: Pure Food Law. An information charging defendant in the language of the statute with wilfully and unlawfully violating the pure food law by overreading a test of cream purchased by him for commercial purposes is not demurrable for failing to charge that the act was committed with the intent to defraud the seller; such intent not having been made by statute an element of the offense. Comp. St. 1911, ch. 33, sec. 20.</p>

<p>1. Judgment: Revivor: Plea of Payment. “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 inference.” Platte County Bank v. Clark, 81 Neb. 255.</p> <p>2. Quieting Title: Equity: Dormant Judgment: Presumption of Payment. And the rule is the same where the judgment creditor is demanding the payment of a dormant judgment as a condition precedent to the right of the judgment debtor to quiet his title to real estate as against such dormant judgment.</p>

<p>1. Master and Servant: Injury to Servant: Rules: Sufficiency: Question for Jury. A railroad company has a right, and it is its duty, to make reasonable rules for the protection of the safety of its employees, and such rules its employees are bound to regard and obey; but whether or not any particular rule, under the circumstances shown, is sufficient and adequate for the safety of the company’s employees, is a question of fact for the jury.</p> <p>2. -: -: Negligence. Under the rules of the defendant company, the switch engine in its Lincoln yards had the right to occupy the main track, protecting itself against overdue trains. The extra, Which was being run by plaintiff’s decedent, was required to proceed through the yard under full control, and protect itself within yard limits. The switch engine having the right of way over the extra, it was the duty of the decedent to be on the lookout for the switch engine and to take such precautions as the situation demanded to prevent a collision; but this did not relieve the crew of the switch engine from the exercise of ordinary care in avoiding a collision with the extra, which they knew had entered the yard.</p> <p>3. -: -: -: Question for Jury, The uncontradicted evidence shows that the defendant company, at and prior to the collision which caused the death of plaintiff’s decedent, had not promulgated any written or printed rules regulating the rate of speed at which the switch engine might be run in its yards. Held, That it was for the jury to say whether or not, under the circumstances shown, the failure of the company to adopt and promulgate such a rule was negligence oh its part.</p> <p>4. Negligence: Evidence. There being no evidence in the record tending to show negligence on the part of plaintiff’s decedent, the question of contributory negligence does not arise.</p> <p>5. Damages. The evidence shows that the decedent was a man of good health, 32 years of age; that he was earning from $125 to $150 a month; that his expectancy, according to the Carlisle table, would be 32 years. Held, That we cannot say that $15,000 is an excessive judgment under these circumstances.</p> <p>6. Commerce: Interstate. Plaintiff’s decedent was running a lone engine, as an extra, from one point to another in this state, not in connection with any cars. Held, That he was not engaged in interstate commerce. ></p> <p>7. Instructions complained of and set out in the opinion, examined, and held free from prejudicial error.</p> <p>8. The evidence examined and set out in the opinion, held sufficient to sustain the verdict and judgment.</p>

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

<p>Divorce: Extreme Cruelty: Evidence, Evidence examined, and referred to in the opinion, field sufficient to entitle plaintiff to a divorce on the ground of extreme cruelty.</p>

<p>1. Statute of Frauds: Contract: Modification. Where a contract is one required by the statute to be in writing, there must be a consideration for a modification by waiving some of its requirements, or else such new agreement must be in writing.</p> <p>2. Brokers: Commission: When Due. In a written contract of agency for the sale of real estate, which provides that the agent’s commission shall be “due and payable when deal is closed,” such commission is due and payable when the agent has brought his principal and a purchaser together, and the principal and purchaser have fully negotiated and agreed upon a sale and purchase, and have entered into, an executory contract for the performance of such agreement.</p> <p>3. The instructions examined, and set out in the opinion, held free from prejudicial error.</p>

<p>1. Appeal: Law of the Case. The determination of questions presented to the supreme court becomes the law of the case, and, ordinarily, will not be re-examined when the case is again brought up for review.</p> <p>2. Taxation: Publication of Delinquent Tax List: Newspapers: Order of County Board. A motion adopted by a county board that “the printing of the scavenger delinquent tax list was awarded to the O’Neill Frontier,” field, not a designation of such newspaper as the one in which subsequent notices in the same suit should be published.</p> <p>3. Appeal: Rulings: Harmless Error. “To warrant the reversal of a judgment it must affirmatively appear from the record that the ruling with respect to which error is alleged was prejudicial to the rights of the party complaining.” Dotry v. Western Mfg. Go., 58 Neb. 667.</p> <p>4. --: Verdict: Inadequacy. The verdict of a jury will not be set aside on the sole ground of inadequacy of amount, where it appears that substantial justice has been done.</p>

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

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

<p>1. Pleading: Inconsistent Allegations. If a pleader makes inconsistent allegations in a pleading, lie is bound by those that are most favorable to the case of his opponent.</p> <p>2. Appeal: Briefs. In a civil case, when no brief is filed which separately states and numbers the points relied upon, with the citations of authorities relied upon under each point, respectively, and designating “the several pages of the record containing matter bearing upon the questions discussed in such brief,” and in other respects complying with rule 9 of this court, the court will not ordinarily, for'the purpose of reversing a decision of the trial court, look for matters in the record not briefed as the rule requires.</p>

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

<p>1. Mortgages: Deed as Security: Title Conveyed. A deed of real estate given and received as security for debt will, as between the parties thereto, be treated as a mortgage. Such deed conveys the legal' title, and the grantor’s remaining interest in the land is equitable only. Such interest is not subject to the lien of a judgment, and can be reached by his creditors only by equitable proceedings.</p> <p>2. Vendor and Purchaser: Bona Fide Purchaser. One who purchases the land in good faith for full value from the apparent owner and takes his deed from the holder of the legal title, without actual notice of any adverse claims, is not bound to take notice of a judgment against a former holder of the legal title, when such judgment was entered and docketed after such former holder of the legal title had conveyed the same to the grantor of such purchaser.</p>

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

<p>1. Ejectment: Exchange oe Lands: Estoppel. Where plaintiff, the former owner of the land in question, exchanged it for other land, of equal value, receiving and retaining title thereto, he cannot be heard to claim the title to the land so exchanged, where his claim is that he is the sole owner thereof in his own right.</p> <p>2.--: -: -. Where, prior to the exchange, plaintiff had deeded the land to a third party, who redeeded it to plaintiff’s wife, but which deed was not recorded nor possession of the property taken by the wife, and the plaintiff exchanged it for another tract of equal value, receiving and retaining title and possession, he cannot, as the grantee or devisee of his now deceased wife, reclaim the possession and title to the property which he had caused the grantee of his deed to convey to the purchaser, who purchased in good faith and for full value, even though said grantee had reconveyed the property to the now deceased wife.</p>

<p>1. Principal and Agent: Authority oe Agent: Mortgages. The evidence examined, and it is found that J. O. W. was the duly authorized agent of plaintiff to loan money, receive payment thereof, and to reloan the same, under the direction of plaintiff, but that he had no authority, either express or implied, to bind plaintiff by the purchase and sale of the mortgaged property in his own name, without the knowledge, consent or ratification of plaintiff, and obligate plaintiff to release the security thereon.</p> <p>2. Mortgages: Foreclosure: Authority oe Agent. J. O. W. was the agent of plaintiff for the purpose of loaning money, with general authority to receive and reloan the proceeds upon security to be approved by plaintiff. Under such agency and authority he loaned C. $800, taking a promissory note therefor, payable to plaintiff, secured by a mortgage on real estate. He subsequently purchased the real estate, paying the difference between the purchase price and the money secured by the mortgage, taking title in his own name, and undertaking to procure, cancel and return the mortgage and surrender the note secured thereby. He after-wards sold the property to defendant. Plaintiff, the owner of the note and mortgage, had no knowledge of what J. O. W. had done and never consented to nor ratified the transaction. The mortgage was of record in the mortgage records of the county and so continued, uncanceled and unsatisfied. Held, That in an action by plaintiff, the mortgagee, to foreclose the mortgage, he was entitled to a decree.</p>

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

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

<p>1. Equity: Reformation of Contract: Injunction. In an action in equity to enjoin a suit at law and to reform the written contract upon the provisions of which such suit depends, the basis of the equitable action is the right of the plaintiff to the reformation of the contract.</p> <p>2. Contract: Reformation: Evidence. “In order to authorize the reformation of a written contract, it must be made to appear what the actual contract between the parties was; that the written contract exhibited does not express the contract made; and these facts must be established by clear, convincing, and satisfactory evidence.” Slohoclishy v. Phoenix Ins. Go., 52 Neb. 395.</p>

<p>L. Municipal Corporations: Lighting Plant: Bond Issue, In order to the legal issue of bonds for the construction of a municipal lighting plant in cities of the class having a population of from 5,000 to 25,000 inhabitants, it is necessary that the provisions of section 54 of the city charter (Comp. St. 1911, ch. 13, art. Ill) be followed and complied with.</p> <p>2. -: -: Statutes: Repeal by Implication. The provisions of that section having been enacted and re-enacted subsequent to the passage of sections 1 and 2, art. V, ch. 14ft, Comp. St. 1911, supersede the latter áct wherein there is a conflict in their provisions.</p>

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

<p>1. Taxation: Foreclosure oe Lien: Publication op Notice. A district court is without jurisdiction to render a default decree foreclosing a tax lien where service upon the owner of the land is made by publication only, the notice having been published only seven times in a semi-weekly newspaper. Claypool v. Robb, 90 Neb. 193.</p> <p>2. -: --: Void Decree: Right oe Redemption. The payment of all delinquent taxes, both before and subsequent to the entry of a void tax foreclosure decree, with interest and penalties, where the land is unimproved, is sufficient to meet the demands of equity and enable the owner to redeem.</p>

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

<p>1. Corporations: Action on Note: Estoppel. In this an action against a corporation to recover upon a promissory note duly authorized and executed by its officers, the defendant denied its legal existence as a corporation. Held, That under section 144, ch. 16, Comp. St. 1911, such a defense is not permissible.</p> <p>2. Bills and Notes: Action: Defenses. Under the facts set forth in the opinion, held that the defense of fraud and no consideration were not established.</p> <p>3. Appeal: Conflicting Evidence. The findings and judgment of a district court, in a law action tried without a jury, based upon conflicting evidence will not be set aside .unless clearly wrong.</p>

<p>Appeal: Verdict: Evidence. Where the verdict of a jury is clearly against the weight and reasonableness of the evidence, it .will be set aside and a new trial granted.</p>

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

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

<p>Eminent Domain: Injury to Property: Remedy oe Owner. An owner of property, who knowingly permits a corporation, having the power of condemnation for a public purpose, to use or damage such property therefor, may be limited to his remedy for damages.</p>

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

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

<p>Evidence: Parol Evidence: Ambiguity. Ambiguity in a written instrument may be explained by oral testimony stowing the mutual understanding of the'parties.</p>

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

<p>Insurance: Mutual Companies: Insolvency: Proceedings Against Members. Record examined, and held that the case at bar is ruled by McCall v. Bowen, 91 Neb. 241.</p>

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

<p>Appeal from tlié district court for Boone county: James R. I-Tanna, Judge.</p>

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

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

<p>1. Trial: Instructions: Damages. The instruction set out in the opinion, approved.</p> <p>2. Appeal: Admission of Evidence. The rulings of the court in the admission and exclusion of evidence set out in the opinion, approved.</p> <p>3. -: Conflicting Evidence. A verdict based upon conflicting evidence will not be disturbed unless manifestly wrong.</p>

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

<p>1. Appeal: Joint Tort-Feasors: Inconsistent Verdict. In an action for negligence against several defendants, if the allegations and evidence relate wholly to the negligence of a third party not sued, who was at the time acting for all of the defendants jointly, and no direct act of negligence on the part of any party to the suit is shown, a verdict in favor of one defendant and against others is inconsistent.</p> <p>2. -: Reversal on Condition. In such case, if after all of the evidence is taken and general instructions as to all defendants are given, the jury is instructed to find a verdict in favor of one defendant, and the record fails to show any disposition of the case as to the other defendants, and upon appeal by plaintiff it is stated by his attorney in open court that a verdict was in fact rendered and judgment entered against the other defendants, and that, if the judgment in favor of the one defendant is reversed, he will cause the judgment against the other defendant to be vacated also, the reversal of the judgment appealed from will be made conditional upon the vacation of the judgment against the other defendants also.</p>

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

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

<p>Sales: Bill oe Sale.: Construction: Review. A written bill of sale, which described the property sold as “all of the furniture and furnishings in all the rooms (except room No. 10, and except one carpet and one bed) on the second and third floors of the building, No. 229 North Eleventh street,” was construed by the district court as reserving all the furniture in room numbered 10, and, in addition thereto, reserving a carpet and bed in other parts of the house ( that the only ambiguity was in the identification of the carpet and bed so reserved, and to which, over defendant’s objections, the proof was limited upon the trial. Held, That under the oral evidence it does not sufficiently appear that the holding was erroneous.</p>

<p>Injunction: Remedies at Law: Possession of Real Estate. A litigant cannot successfully invoke the extraordinary remedy of injunction, the effect of which would be to obtain possession of real estate, unless the facts and circumstances in the case are such that his ordinary legal remedies are inadequate.</p>

<p>Appeal from tlie district court for Frontier county: Robert O. ORR, Judge.</p>

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

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

<p>1. Mortgages: Foreclosure: Redemption: Limitations. Where the purchasers at a foreclosure sale, which is claimed to be void on account of defective proceedings, took actual possession, claiming title, and they and their grantees have held the same adversely for more than ten years after the attainment of their majority by the heirs of the mortgagor, the right to redeem from the mortgage and to recover the possession of the land is barred.</p> <p>2. Limitation, of Actions: . Infants: Tolling the Statute. “The fact that certain of the plaintiffs in such an action are minors, who claim title through descent, does not toll the statute, where it appears that the statute had commenced to run during the lifetime of their ancestors.” Lyons v. Carr, 77 Neb. 883.</p>

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

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

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

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

<p>Trial:- Directing Verdict: Evidence. It is not error to direct a verdict for plaintiff, where the evidence is sufficient to support his cause of action, but is insufficient to sustain the only defense pleaded.</p>

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

<p>Appeal: Aeeirmance: Directing Verdict. Where the record contains sufficient evidence to sustain a directed verdict, and such verdict is the only one which, under the pleadings and evidence, could he permitted to stand, the judgment rendered thereon will he affirmed.</p>

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

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

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

<p>1. Parent and Child: Illegitimate Child: Heirship. One not the father of an illegitimate child does not make such child his heir by marrying the child’s mother and signing the marriage record in which it is recited that the “husband and wife agreed taking as their lawful children and to recognize them as such,” naming the said child with other illegitimate children of the woman.</p> <p>2. --: -: -. The father of an ilfegitimate child may make such child his heir by marriage with the child’s mother and adopting such child into his family; but, when the child is 20 years of age, sending §uch child money with which to pay passage from a foreign country, and allowing him to live in the family for a short time thereafter, is not adopting him into the family, within the meaning of section 4931, Ann. St. 1911. It is not necessary to decide in this case whether said section applies to any other than the father of the illegitimate child.</p>

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

<p>1. Criminal Law: Arraignment: Withdrawal of Plea: Discretion of Court. The complaint in the preliminary examination for gambling, a misdemeanor, charged that the defendant committed the crime with three other persons, naming them. In the district court an information was filed charging that the defendant and two others of the three named in the complaint in the lower court committed' the crime with the third party named, and correcting the allegation of .the name of one of the parties. The defendant entered a plea of not guilty to the information as filed in the district court and demanded a separate trial. After-wards defendant asked leave to withdraw his plea of not guilty for the purpose of objecting to the variance between the information and the original complaint. Held, That it was not an abuse of discretion of the trial court to refuse to allow the plea to be withdrawn for such purpose.</p> <p>2. -: Instructions: Joint Information: Separate Trial. When three parties are jointly charged in an information for a misdemeanor in the district court and one of them demands a separate trial, it is not error to instruct the jury that the defendant is so charged, without naming the other parties charged with him.</p> <p>3. -: -: Accomplice. The failure to caution the jury as to the evidence of an accomplice in a misdemeanor case, in the absence of a special request so to do, is not reversible error.</p> <p>4. -: -: Reasonable Doubt. In an instruction as to reasonable doubt in a misdemeanor case, the statement that a reasonable doubt “is an actual substantial doubt arising either from the evidence or want of evidence in the case” is not erroneous.</p> <p>5. Statutes: Amendment: Constitutionality. Chapter 108, laws 1887, amended section 214 of the criminal code by adding a proviso “for the recovery of money or other property lost in gambling.” A similar proviso was held valid in Perry v. Gross, 25 Neb. 826. It is not necessary to reconsider the question in this case, since it does not depend upon that proviso.</p> <p>6. Criminal Law: Assistant Prosecutor: Appointment: Discretion of Court. It is not an abuse of discretion of the trial court in a misdemeanor case to appoint a former prosecutor, who during his term of office began this prosecution, to assist the present prosecutor in the trial of the case, for the sole reason that such' former prosecutor has prosecuted a civil suit against the defendant to recover for services of another attorney rendered in this case.</p> <p>7. Gaming: Sufficiency of Evidence. The evidence is examined, and found sufficient to support the verdict.</p>

<p>1. Adverse Possession: Parol Relinquishment. Where the title to real property has been perfected by a disseizin so long continued as to take away the right of entry, and bar an action for the land, that title cannot be divested by a parol abandonment or relinquishment (see School District v. Benson, 31 Me. 381), unless such abandonment or relinquishment has existed through the statutory period of limitations.</p> <p>2. -. “One who has acquired absolute title to land by adverse possession for the statutory period does not impair his title by thereafter paying rent to the owner of the paper title.” Martin v. Martin, 76 Neb. 335.</p> <p>3. -. “A possession of land, open, notorious, adverse and exclusive, indicates a claim of right, and will constitute a disseizin, unless controlled or explained by other testimony.” School District v. Benson, 31 Me. 381.</p> <p>1. Forcible Entry and Detainer: Nature oe Action. An action for the forcible detention of real property, instituted and carried to a judgment in favor of the plaintiff in such action, who was not the owner of the legal title, and after the title has vested in the defendant therein by limitation, cannot have the effect of extinguishing the title of such defendant. The action is merely possessory, and the question of title cannot be either tried or determined in such case.</p> <p>5. --•: Parties. The rule of the code of civil procedure that every action must be prosecuted in the name of the real party in interest applies with as much force in forcible entry and forcible detainer cases as in any other.</p>

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

<p>Appeal: Conflicting Evidence. Where a case is tried by a jury on. conflicting evidence, the supreme court will not set aside the verdict and grant a new trial, unless the verdict is against the clear weight of the evidence, and is manifestly wrong.</p>

<p>Limitation of Actions: Amendment of Petition: New Cause of Action. When this action was commenced it was brought and was tried on the sole theory of a failure of a master to provide a safe place for his servant to work. Plaintiff recovered, and on appeal to the supreme court it was held that the relation of master and servant did not exist between plaintiff and defendants at the time the plaintiff received his injuries. When the cause was remanded to the district court the plaintiff filed an amended petition eliminating the allegations relating to master and servant. and alleged that plaintiff was working for an independent contractor at the time he was injured, and was on the defendants’ premises by their invitation; that he received his injuries by reason of defendants’ negligence as inviters upon their premises. Held, That the amended petition having been filed more than four years after the plaintiff’s injuries occurred, the cause of action stated therein was barred by the statute of limitations.</p>

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

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

<p>1. Eminent Domain: Drainage: Removal of Dam: Measure of Damages. The proper measure of damages on appeal from condemnation proceedings to remove a mill-dam is the difference between the value of the mill property before the removal of the dam and loss of the water-power and its value after the removal has taken place.</p> <p>2- -: -: -: -: Prospective Profits. Prospective profits which may in the future be derived from the use of the water-power for the development of electricity are too remote and speculative to be taken as elements of damage, where there is no proof of a present and immediate intention and purpose to make such development.</p>

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

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

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

<p>1. Appeal: Trial de Novo. This being an action in equity, we are upon appeal required to try the issues de novo, without reference to the decision of the lower court. Upon the evidence in the record, which is outlined in the opinion, it is found that the decree is not supported by the evidence.</p> <p>2. -: Reversal: Direotiítq Decree. When, in an action in equity, it is apparent upon appeal to this court that no further evidence can be furnished, this court will, upon reversal, direct such decree as the pleadings and evidence require.</p>

<p>Sales: Action for Goods Sold: Evidence. This action was to recover the price of a bill of goods shipped by plaintiff to defendant pursuant to a written order. Defendant claimed that the goods were damaged, and immediately returned them to plaintiff, and telegraphed plaintiff to “cut the order in two,” and to fill the order so changed with a different description of goods. The plaintiff received the returned goods, and held them until after the com- . mencement of this action; also accepted the changed order, and prepared and shipped to defendant the goods accordingly. These goods were received and paid for by defendant. Held, That the original order was canceled by these transactions, and that defendant cannot be required to receive and pay for the goods originally ordered,</p>

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

<p>1. Municipal Corporations: Ordinances: Validity: Dead Animals. The city of Omaha by an ordinance, in effect, declared that the carcasses of all dead animals found within the city, which were not slain for food, should at once become the property of the public contractor, whose name was contained in the ordinance; such ordinance is void, so far as it attempts to take private property without due process of law.</p> <p>2.--: -: Disposition of Dead Animals. The owner should be permitted to remove such animals or to cause the same to be removed within a reasonable time fixed by such municipality, and be allowed to receive the value thereof, or to put the same to a beneficial use.</p>

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

<p>1. Replevin: Nature of Action. In an action of replevin the wrongful detention of the property in dispute and plaintiff’s right to possession constitute the gist of the action. '</p> <p>2. Appeal: Theory of Case. On appeal to the supreme court the cause will be treated and disposed of upon the theories presented by the parties upon the trial, if a liberal construction of the pleadings as construed by them will permit the same to be done.</p> <p>3. Replevin: Demand: Instructions. Where, in an action in replevin, the evidence showed conclusively that a sufficient demand for the possession of the property had been made before the commencement of the suit, an instruction by the court, whether right or wrong, that proof of a demand was necessary in order to permit the plaintiff to recover could work no prejudice to the. plaintiff.</p>

<p>Intoxicating Liquors: Licenses: Power oe Board. Where the electors of a city or village at a legal election held therein under the provisions of section 1, ch. 75, laws 1911 (Comp. St. 1911, ch. 50, see. 25) have voted upon the question of “license” or “no license” for the sale of intoxicating liquors, and a majority of the votes cast are in favor of “no license,” the city or village board have no authority to issue a license during the then current year.</p>

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

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

<p>1. Taxation: Assessment. “A state may make the ownership Of property subject to taxation relate to any day or days or period of the year which it may think proper; and the selection of a particular day on .which returns of their property for the purpose of assessment are to be made by taxpayers does not preclude the making of assessments as of other periods of the year.” SUotweXX v. Moore, 129 U. S. 590.</p> <p>2.-: -. Section 37, a,rt. I, ch. 77, Comp. St. 1911, requires the assessor to list property brought into this state by any person after April 1st and before July 1st, which is found in the possession of the owner, for taxation; and provides that the owner, in order to escape taxation thereon, shall show to the assessor, under oath, and by producing a copy of the assessment duly certified to by the proper officer of the state or county in which said property was assessed, that said property has been listed for taxation for that year in some other county in this state, or in some other state or territory of the United States, or that said property has been received by him in exchange for money or property listed for taxation during that year.</p> <p>3. -: -: Evidence. An affidavit of the owner of such property that he did not own it on the 1st day of April, and did not bring it into the state since that date, is insufficient to authorize the assessor or the county board of equalization to strike such property from the assessment rolls.</p>

<p>Adpeal from the district court for Colfax county: George IT. Thomas. Judge.</p>

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

<p>Elections: Printing oe Ballots: Liability oe County. It is the duty of a county to furnish ballots to be used at general elections. The county clerk is the duly authorized agent of the county to procure and furnish such ballots. Where by a mistake of the clerk the ballots first printed, which had been paid for by the county, were rendered useless, this fact did not relieve the county from the duty of procuring and furnishing at public expense new ballots for the use of the voters.</p>

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

<p>Error to the district court for Knox county: Anson A. Wei,oh, Judge.</p>

<p>Trial: Question fob Jury: Negligence. The issue of negligence should be submitted to the jury, where reasonable men may draw diverse inferences from all of the circumstances proved.</p>

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

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

<p>1. Mechanics’ Liens: Items of Account: Entire Contract. Where a materialman contracts with the owner to furnish material for the construction of a building, and during the course of construction a portion of the building is so damaged by fire as to necessitate the reconstruction of such portion, and the materialman, without further contract with the owner, furnishes the extra material required for such reconstruction, all of the material furnished will be treated as having been furnished under one contract.</p> <p>2. -: Description oe Property. “In an affidavit for a mechanic’s lien, if there appear enough in the description to enable a party familiar with the locality to identify the premises intended to he described with reasonable certainty, it will be sufficient.” Quiow v. RyoTcman, 77 Neb. 833.</p>

<p>1. Partnership, Evidence oí. Evidence examined and set out in the opinion held insufficient to show a partnership between the defendants.</p> <p>2. Negligence, Evidence of. Evidence examined and set out in the opinion held insufficient to establish actionable negligence against either of the defendants.</p>

<p>1. Mechanics’ Liens: Notice: Surplusage. A recital in a notice of a mechanic’s lien, filed by a subcontractor, that the materials furnished were furnished for the owner of the property under a contract, is an unnecessary recital and will be treated as surplusage.</p> <p>2. -: Description oe Property. “In an affidavit for a mechanic’s lien, if there appear enough in the description to enable a party familiar with the locality to identify the premises intended to be described with reasonable certainty, it will be sufficient.” Onion v. Ryckman, 77 Neb. 833.</p> <p>3. Mechanics’ Lien Law: Construction. The object of the mechanics’ iien law being to secure the claim of those who have contributed to the erection of a building, it should receive the most liberal construction to give full effect to its provisions.</p>

<p>Brokers: Action eor Commission: Review. Record examined, and held free from any prejudicial error.</p>

<p>1. Principal and Agent: Fraud of Agent: Action: Defenses. One who undertakes to act as agent of another for the sale or exchange of real estate cannot defend, in an action for damages caused b/ his fraud in such employment, on the ground that his contract of agency was void because not in writing, as required by section 74, ch. 73, Comp. St. 1911. The fact that such contract is voidable will not protect the parties thereto in perpetrating fraud upon each other.</p> <p>2. -: -: -: -. If the agent receives an offer of exchange which would be advantageous and desired by his principal, and fraudulently conceals the offer and misrepresents it to his principal as being much less favorable than it in fact was, and so prevents an exchange to the damage of his principal, and a tenant of the principal holding an outstanding lease which would prevent the exchange without the consent of the tenant has agreed orally with the principal to transfer the lease to the property taken in exchange, if such exchange can be made, the agent cannot defend against the action of this principal for damages caused by the fraud of the agent on the ground that the agreement of the tenant to make such transfer was not in writing and was therefore voidable. The fact that the agent has such influence with the tenant that he could induce the tenant to avoid his oral agreement is no defense, in the absence of any other motive on the part of the tenant than to assist the agent in perpetrating the fraud upon his principal.</p>

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

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

<p>1. Contracts: Building Contract: Action for Piuce: Counterclaim. AVhere a party contracts with another to build him a dwelling-bouse, and to that end furnishes the plans and specifications therefor, a claim that the work was done according to the plans and specifications is not available as a defense to a counterclaim or set-off for damages for a defective construction of the building.</p> <p>2. ■: Breach: Measure of Damages. In an action for breach of a building contract for alleged improper construction, the owner’s measure of damages is the difference between the value of the building when constructed and what its value would have been if constructed according to contract, and with reasonably sound material and reasonably skilful workmanship.</p> <p>3. Evidence examined, its substance stated in the opinion, and held sufficient to sustain the judgment of the trial court.</p>

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

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

<p>Appeal from the district court for Keith county: Hankon M. Crimes, Judge.</p>

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

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

<p>1. Insuranoe: Action to Recover Premium: Pleading and Pbooe. In an action to recover an advanced premium paid on an application for a policy of life insurance, where plaintiff alleges that he has refused to submit to such a medical examination as was provided for in the application and requested by the company, it-is incum.bent on the plaintiff to allege and prove that the contract has been rescinded, or facts which amount in law to such a rescission, in order to maintain the action.</p> <p>2. -: -: Petition: Sueeiciency. The averments of the plaintiff’s amended petition examined, and found to be insufficient to sustain a judgment in his favor.</p>

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

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

<p>Appeal: Dismissal: Moot Question. A. was arrested upon a criminal charge and required to give a recognizance in the sum of $500 to appear before the district court. After having given the same, and after having been released and discharged from custody, he was again arrested under a warrant issued by the same magistrate on a motion to increase the amount of the bond, and the bond was increased to $1,000. Failing to give this he was committed to the county jail. Habeas corpus proceedings were then brought in the district court to secure his release. From an adverse judgment he appealed to this court. No attempt was made to advance the case, and pending proceedings he was tried on the original charge and acquitted. Upon a motion to dismiss the. appeal, held that, having obtained his liberty by due course of law, the question has become one in the abstract, and the appeal is dismissed.</p>

<p>Judgment: Revivor. A judgment Avas rendered upon an account in an action aided by attachment. The goods attached were replevied from the sheriff by a third party claiming to own the same. The sheriff obtained judgment in the replevin action for the value of the goods, which judgment was assigned to the original plaintiff. v An action was afterwards brought by the original plaintiff against the sureties upon the replevin bond, which resulted in a judgment in an amount in excess of the first one, and which was afterwards satisfied by the plaintiff for a valuable consideration. Following this satisfaction the replevin, judgment was assigned to A., and the original judgment was assigned to B., who satisfied the same of record. Held, That under these facts the judgment in the replevin case was satisfied and the assignee was not entitled to a revivor of the same.</p>

<p>1. Limitation of Actions: Municipal Corporations: Detaching Territory. The statutory right of the owners of unoccupied territory within a village to petition for its detachment, “whenever” the owners of such unoccupied territory “shall desire to have the same disconnected,” is one to which the statute of limitations, as such, does not apply. Comp. St. 1911, ch. 14, art. I, sec. 101.</p> <p>2. Municipal Corporations: Detaching Territory: Estoppel. By signing a petition for an election to vote municipal bonds, the owner of unoccupied territory in a village does not estop himself to assert his statutory right to have such territory disconnected from the village.</p> <p>3. Appeal: Affirmance. In a statutory proceeding to disconnect unoccupied territory from a village, the judgment of the district court will be 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.</p>

<p>1. Municipal Corporations: Ordinances: Enactment: Evidence. Tie silence of the record of a village board is not conclusive evidence of the nonexistence of a fact which should be recorded in enacting an ordinance.</p> <p>2. -: -: Proof. The passage of an ordinance may be proved by common law methods, unless otherwise provided by statute.</p> <p>3. Intoxicating Liquors: License: Petitioners: Residence. The residence of a person, for the purpose of testing his qualifications as a petitioner for a saloon license, is where he has his established home, the place where he is habitually present, and to which, when he departs, he intends to return.</p> <p>4. Appeal: Briefs. On appeal, an assertion by appellant that the evidence sustains an assignment of error may be disregarded, where no reference is made in his brief to the pages or to the places in the record where such evidence may be found. ■</p>

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

<p>Constitutional Law: Chattel Loans Act. The act providing that “A rate of interest not exceeding one per cent, per month may be charged by agreement on loans not exceeding $250, made for a period of one year or less, where such loans are secured only by a chattel mortgage on household goods, musical instruments, wearing apparel, jewelry, diamonds, or by a deposit of personal property, or by an assignment of wages, credits, or choses in action,” and providing penalties for exacting excessive interest and for otherwise violating the act, is void, because it violates the constitutional provision prohibiting the legislature from passing local or special laws regulating the interest on money. Laws 1913, ch. 250; Const., art. Ill, sec. 15.</p>

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

<p>1. Quo Warranto: Corporations: Occupation Tax: Judgment op Ouster: Evidence. Where a corporation, delinquent in the payment of an occupation fee; as provided in section 4260, Ann. St. 1911, applies to the secretary of state to he reinstated, as provided in section 4261, and in good faith pays to such secretary the full amount of fee and penalty demanded by him, the fact that the secretary may, through oversight or under a misconstruction of the law, have demanded a less sum than is required, will not, in the absence of a .demand upon the corporation to pay the required balance and a refusal or failure on its part to make the payment, sustain a judgment of ouster against such corporation.</p> <p>2. Constitutional Law: Power of Legislature: Police Power. Statutes enacted by the legislature in the exercise of the police power must not violate rights guaranteed to the people by the constitution. The legislature may not under the guise of protecting public interests arbitrarily interfere with private business.</p> <p>3. Courts: Jurisdiction: Legislative Enactments: “Gift Enterprise.” And the fact that the legislature, in an act making it a criminal offense for any person to engage in any gift enterprise, describes a legitimate private business enterprise, and provides that any person engaged in such business shall be held to be engaged in a gift enterprise within the provisions of the act, will not oust the jurisdiction of the courts to determine the true character of the business so attempted to be prohibited.</p> <p>4. Constitutional Law: Power of Legislature: Police Power. Chapter 179, laws 1911, set out in the opinion, in so far as it might be construed to prohibit the business of giving and redeeming what are commonly known as “trading stamps,” is an unreasonable interference with a lawful business, not within the police power of the legislature, and is in conflict with article I of the Bill of Rights and the fourteenth amendment to the Federal Constitution.</p>

<p>County Judges: Removal from Office. The only method of removing a county judge from office in this state is by impeachment, as provided in section 14, art. Ill of the constitution.</p>

<p>1. Libel: Writing Libelous Per Se. In an action for libel, language in the alleged libelous publication which, under the circumstances and in the connection in which it is used, would, by persons of ordinary intelligence and prudence, be understood to charge the commission of a crime is libelous per se, although if stated entirely by itself it might not be technically so construed.</p> <p>2. -: Justification. The language contained in a letter may be libelous per se, and the writing and publication of the letter not constitute a libel. If it charges a crime and is therefore libelous per se, still, if it is true of the plaintiff, and is written and published with good motives and for justifiable ends, it is not a libel of the plaintiff.</p> <p>3. Appeal: Instructions. If the instructions as a whole correctly state the law, the judgment will not be reversed because of illogical arrangement of the several instructions, if it appears from the whole record that the jury were not misled thereby.</p> <p>4. Libel: Evidence. In an action for libel, it is not competent to prove wide and general circulation of the libel for the purpose of establishing the falsity of the charge or that the defendant was responsible for the libel.</p> <p>5. -: Publication. One who publishes a libel is responsible for such distribution and general circulation thereof as is the natural result of his act, such as under the circumstances he might reasonably suppose would follow as a result of the publication. He is not liable for an independent subsequent publication of a similar libel not induced by his own act.</p> <p>6. -: -: Question for Jury. If it clearly appears that the publications complained of were such independent publications, the evidence thereof should be excluded by the court. If it appears that the facts from which it might be determined whether the defendant was responsible for the publications are in doubt, and the evidence upon that point is substantially conflicting, the question whether the defendant is responsible for such publications should be submitted to the jury under proper instructions.</p> <p>7. ---: Damages: Amount. The evidence as to plaintiff’s damages is found sufficient to justify the amount of the judgment.</p>

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

<p>1. Adversa Possession. Possession or occupancy of land by permission of the owner can never ripen into an adverse title.</p> <p>2. Vendor and Purchaser: Bona Fide Purchaser. The purchaser of real estate, with knowledge of his grantor’s rights therein, takes only those rights.</p>

<p>Appeal: Sufficiency of Pleadings. When a case, within the jurisdiction of a justice of the peace, is tried in the district court without any objection to the sufficiency of the pleadings either during the trial or after judgment, the issues actually tried will be considered in this court as though properly pleaded.</p>

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

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

<p>1. Wills: Probate: Parties. A proceeding in the probate court to settle the estate of a decedent is a proceeding in rem, a.nd every one interested in such settlement is a party in the probate court whether he is named or not, and this is particularly true as to the distribution of an estate under a will.</p> <p>2. Descent and Distribution: Parties. An order of the county court in the settlement of an estate, by which distribution is made of the assets, is appealable to the district court, the proceeding being in rem, and all persons interested in the distribution of such assets will be considered parties; and, if A asks for an order of distribution that will exclude B from participation in the assets, lie cannot afterwards object to the appearance of B for the purpose of protecting his interest in the county court, or after-wards upon appeal to the district court. In re Estate of Creighton, 91 Neb. 654.</p> <p>3. -: -. Where the court is called upon to determine the probate of a will, it is acting upon the res of the estate, and when an appeal is taken from the county court by the executors to the district court it removes the whole case to the district court, and all parties interested in the distribution are necessarily parties in the district court and are entitled to be heard there. Following In re Estate of Creighton, 91 Neb. 654.</p> <p>4. Wills: Probate: Appeal: Burden oe Proof. When the proponents in this case took the case to the district court for the purpose of having that court probate the will and determine that it was valid, they took it there with the burden upon them to prove its due execution and the capacity of the testatrix to make it at the time of such execution.</p> <p>5. -: -: Testamentary Capacity: Review. The evidence examined, and held that the executors failed to establish the testamentary capacity of Bridget Sweeney at the date of the alleged will, and that their failure to prove the will and establish it, as required by the statute, leaves them without any standing in this court.</p>

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