Volume 97 — Nebraska Reports

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

<p>Assault: Sufficiency of Evidence. The evidence, substantially set out in the opinion, is examined, and held insufficient to sustain a conviction of assault.</p>

<p>1. Burglary: Sufficiency of Evidence. The evidence, the substance of which is stated in the opinion, is held insufficient to sustain a conviction of burglary.</p> <p>2. Instructons 6 and 7, copied in the opinion, held to have been erroneously given.</p>

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

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

<p>1. Intoxicating Liquors: Petition for License: Sufficiency: Burden of Proof. In an application for a license to sell intoxicating liquors, to which a remonstrance was filed, wherein it was claimed that the petition was not signed by the requisite number of freeholders, the burden of proof is upon the applicant to establish, by competent evidence, the faet that a sufficient number of the petitioners were freeholders at the time they signed the petition.</p> <p>2. -: -: Qualification of Petitioners: Evidence. The evidence of eaeh of 35 of said petitioners that he was a freeholder in the village where the license is sought to be obtained, together with a proper deed conveying to eaeh petitioner real estate in fee simple, bearing date prior to the filing of the petition, together with the oral evidence of eaeh petitioner that he-owns the real estate conveyed to him, and is in possession thereof at the time of the hearing, is sufficient prima facie evidence to qualify him to sign such a petition.</p> <p>3. -: Application for License: Character of Applicant: Evidence. Evidence taken at the hearing on the application for license that the applicant was a man of respectable character and standing sufficiently establishes that fact.</p> <p>4. -: -: Proof of Publication. The affidavit of the publisher of a newspaper accompanying and annexed to a notice of the filing of an application for a license for the sale of intoxicating liquors, after giving the name of the paper, which states that said newspaper has the largest circulation in the county in which the application is made, that the printed notice attached was to his personal knowledge published daily in such newspaper for two weeks prior to the time of the hearing on the application, is prima facie evidence of the publication of the notice, and that the same was inserted in the proper newspaper.</p> <p>5. -: -: -: Impeachment. Such affidavit may be impeached by competent evidence, but, where no evidence is offered for that purpose, it will be sufficient to authorize the board to act on the application.</p> <p>6. -: -: Disqualification of Board. The remonstrator offered to prove by a member of the board, before whom the application was pending, that he had formed an opinion respecting the-character and standing of the apx>licant prior to the filing of the petition, and that he had expressed his oxnnion in that respect, and has the same opinion still. Counsel for the applicant withdrew his previous objections to such offer, and the offer was not renewed. Held, not sufficient to establish the fact of the disqualification of the member of the board.</p> <p>7. -: -: Existence of City Ordinance: Presumption on Appeal. Where, on the hearing of an application for a license to sell intoxicating liquors in an incorporated village, the remonstrator makes no claim of the nonexistence of an ordinance authorizing the issuance of such a license, on appeal the existence of such an ordinance may be presumed.</p> <p>8. -: Petition for License: Identity of Petitioners. Where one testifies at the hearing that he signed the petition for a license, and produces a deed showing his full name to have the same initials as those affixed to his surname as signed to the petition, such testimony is sufficient prima facie to identify him as being the same person who signed the petition.</p>

<p>1. Contracts: Building Contracts: Construction. The building contract involved in this controversy considered, and held to be a contract by the defendant Collins to “order all the material, and superintend all the work for tbe building,” and not to be an ordinary building con- ' tract.</p> <p>2. -: -: Action for Damages: Sufficiency of Evidence. Evidence set forth in the opinion held to justify the finding of the district court that the principal delays in the construction of the building and sidewalk were due to acts of the owner, and that he is not entitled to recover damages from the contractor therefor.</p>

<p>1. Rape: Sufficiency op Evidence. Evidence held to support the verdict.</p> <p>2. -; Evidence'op Other Acts: Admissibility. In a prosecution for rape with consent, proof of other acts of intercourse occurring shortly after the time of the act charged is admissible, and the weight of such evidence as matter in corroboration is for the jury to determine.</p> <p>3. -: -: Corroboration. .While the prosecuting witness alone cannot furnish corroboration by her statements or testimony as to such other acts, still, if her testimony in connection with other facts and circumstances in evidence convinces the jury that such took place, the whole of the proof is proper to be considered, and it is not erroneous to admit the testimony of the prosecutrix as to such acts and to allow it to go to the jury under a proper instruction.</p> <p>4. Criminal Law: Refusal of Cautionary Instruction. A cautionary instruction as to the testimony of a sheriff held properly refused. Keezer v. State, 90 Neb. 238.</p>

<p>Corporations: Contracts: Execution: Presumption. A contract pertaining to the business of a corporation, when formally executed in its name by its president, will, in the absence of proof to the contrary, be presumed to have been authorized by the corporation, and the presumption is not necessarily rebutted by mere failure of the directors ’ record to show affirmatively that such authority had been given.</p>

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

<p>1. Insurance: Contract. The policy of insurance and the application therefor examined together, and held to constitute the contract between the company and the insured.</p> <p>2. -: Forfeiture. The application signed by the insured was dated June 13, 1899. The application was approved and policy issued at the home office of defendant on June 23. The premium was to be paid annually. The premium due in June, 1906, was not paid. The application contained a clause that the company would incur no liability until the application had been received and approved by the company at its home office and the premium had actually been paid to and accepted by the company or its authorized agent during the lifetime and good health of the applicant. The policy contained a stipulation that “A grace of_ one month, during which the policy remains in full force, will be allowed in payment of all premiums except the first.” The insured died July 23, 1906. Held, That the contract of insurance did not go into effect prior to the issuance of the policy on June 23, 1899; that the payment of premium for each succeeding year extended the life of the policy for an additional year from June 23, and that, with the month’s grace added to that date in 1906, the policy in suit had not lapsed, but was in full force and effect at the time of insured’s death.</p>

<p>1. Municipal Corporations: Recall of Officers: Petition. When a petition is filed for the removal of a councilman or commissioner under section 5308, Rev. St. 1913, in a city where registration laws are in force, the city clerk, in determining whether or not the petition is signed by the requisite 30 per cent, of the qualified electors, is limited to the voters’ register of such city.</p> <p>2. —:-: -: -: Verification. Where a petition filed for the removal of a commissioner under section 5308, Rev. St. 1913, is made up of a number of papers, and through oversight any of such papers have not been verified by the oath of one or more of the signers of the same, as required by section 5305, Rev. St. 1913, the city clerk should, on request, permit the attaching of such oath of verification, even, after sueh petitions have been filed.</p> <p>3. -: -: “Highest Vote Cast.” The words “highest vote east,” as used in section 5308, Rev. St. 1913, mean the highest vote cast both for and against any candidate for office or proposition voted for at the last preceding general city election of such city.</p>

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

<p>1. Appeal: Sufficiency of Pleadings. Upon appeal to this court in a law case, when there are no special findings, no motion for new trial, and no bill of exceptions, the only question presented is as to the sufficiency of the pleadings to support the judgment.</p> <p>2. Counties: Claims: Defenses. The statute provides that claims against a county must be filed with the county clerk, who is also .the clerk of the board of supervisors. If the record shows that a claim was before the board and acted upon, it is no defense upon appeal to the district court that the record fails to show that the clerk indorsed his filing upon the claim.</p> <p>3. -: -: Pleadings. Formal pleadings are not necessary in presenting a claim to the county board. The statement in the claim before the county board of the contract to furnish materials, and that they were furnished and accepted and not paid for, would be' all the pleading that would be necessary.</p> <p>4. Constitutional Law: Remedial Legislation: Claims against Counties. If one sells articles to the county, necessary for the public use, and the same are received and used by the county, such sale, although prohibited by chapter 55, laws 1905, there being no money in the county treasury with which to pay for such articles when such contract of purchase is made, is not malum in se. A subsequent act of the legislature authorizing the county to pay for the same is not void as an exercise of judicial power; nor is such statute a violation of section 15, art. Ill of our constitution, nor the fourteenth amendment of the federal constitution.</p> <p>5. -: -: Res Judicata. Such subsequent act of the legislature is not a review and reversal of a judicial decision previously rendered disallowing the claim because of the bar of the former statute, its purpose and scope being to remove the claimant’s disability to prosecute his claim; and such former decision is not an adjudication of the claim prosecuted under the subsequent statute.</p> <p>6. Limitation of Actions: Claims against Counties. Such claim is not barred by the statute of limitations until four years from the subsequent act authorizing the county to pay the same.</p> <p>7. Counties: Claims: Appeal. If the county recognizes its moral liability for the property so taken and used, and the county board allows the claim, such action should not be set aside upon appeal of a taxpayer.</p>

<p>1. Sales: Action for Price: False Representations: Burden of Proof. Where, in a suit to recover the purchase price of an appliance, the defense is a rescission of the contract, consented to hy the plaintiff, and the reply is that such consent Was obtained by false and fraudulent representations, the burden is upon the plaintiff to establish the fact that such representations were made, and that it relied upon them when it consented to the rescission.</p> <p>2. -: -: Directing Verdict: Sufficiency of Evidence. Evidence examined, and held to sustain the action of the district court in directing a verdict for defendant.</p>

<p>1. Arbitration and Award. Submissions of controversies to arbitration are to be liberally construed so as to give effect to the intention of the parties. It is the policy of the law to encourage the , settlement of disputes without litigation, and awards are favored in law.</p> <p>2. -: Impeachment oe Award: Burden oe Proof. An award, when regularly made and published, is prima facie binding upon the parties thereto, and the burden of alleging and proving the contrary is upon the party seeking to impeach it.</p> <p>3. Counties: Arbitration. County boards are vested with authority to submit matters in dispute to arbitration either under the provisions of the statute or the principles of the common law.</p> <p>4. Arbitration: Award: Conclusiveness. In a common law submission an award was agreed upon by the arbitrators. It was written out, signed, inclosed in a sealed envelope, and given to one of the arbitrators for delivery. He failed to deliver it, but produced it in court upon an order being made to that effect. Held, That the intention at the time the award was signed was that it should be final, that it was not thereafter revocable, by either party alone, and that the mere failure to .deliver it did not operate to set it aside.</p> <p>C. -: Notice. Where the evidence discloses that no hearing was contemplated, but that it was the intention of the parties that the arbitrators should meet at the proposed location of a road, view the premises, and award damages, and the arbitrators met in this manner upon a day fixed by one party, the other consenting thereto, the award is not void for want of notice of the time and place of the meeting of the arbitrators.</p>

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

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

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

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

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

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

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

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

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

<p>1. Waters: Irrigation: Appropriation. Prior to the irrigation statute-of 1889 (laws 1889, ch. 68), our law provided no method of making a claim of appropriation of water except the construction of works in which to divert the water and diverting the same or applying it to a beneficial use, and the appropriator was not required to otherwise declare the amount of his claim until his right was challenged.</p> <p>2. -: Appropriation. After the act of 1889 an appropriator-whose right was established by the completion of his works for appropriation, and who desired to increase the amount of his appropriation, must proceed under that act. The amount of his'prior appropriation was limited to the capacity of his works as completed when the act of 1889 took effect and diverting and applying, the water within a reasonable time.</p> <p>3. -: -: Priorities: Estoppel.' Subsequent appropriators, and all persons claiming under them, were bound to take notice of the rights of prior appropriators which accrued before tbe act of 1889. If subsequent appropriators proceeded to construct their works for the diversion and use of water, prior appropriators ■--might assume that such works were intended to be subject to their prior appropriation, and they- would not, by their silence while subsequent works were being constructed, be estopped to assert the priority of their appropriation.</p> <p>4. -: -: - — . The act of 1895 (laws 1895, ch. 69> required the state board to proceed and determine all appropriations of water recorded under prior acts, and the act of 1911 (laws 1911, ch. 153) extended that provision to all appropriations whether or not recorded. An appropriation under the act of 1877 (laws 1877, p. 168) which had not been determined by the board • was not affected by adjudications of subsequent appropriations.</p> <p>5. -: -: “Reasonable 'Time.” Under tbe act of 1911, as amended in 1913 (Rev. St. 1913, sec. 3412), one who has constructed a canal for the purpose of carrying water for hire to be used upon the lands of others, and is ready and willing to furnish the water to such landowners as will take it, has made the only application of water to a beneficial use that he can make, and his. right to an appropriation continues as a developing right for a reasonable time to enable tbe landowners to apply it to all lands along tbe canal for which the water was originally appropriated. What is reasonable time will depend upon the conditions and circumstances of each particular case.</p> <p>6. -: -: -. This appropriation having been made under the law which permitted appropriations without actually applying it in any specified time, the plaintiff should be regarded as having appropriated water, within the limits of the capacity of its works, for lands under its ditch to which the water was applied within a reasonable time.</p> <p>7. -: -: Notice. Appropriations of the water of the state can only be made of water not previously appropriated; and when an appropriation of water has been legally made, and the law at the time fully complied with, subsequent appropriators must take notice thereof. It is not necessary that a prior appropriator should personally notify such subsequent appropriators of his prior rights.</p> <p>8. -: -: Vested Rights. The act of- 1877 (laws 1877, p. 168) made no distinction between the use of water for irrigation and its use for power purposes. Both were equally protected under the act of 1889. Appropriations for power which were completed under the act of 1877 became vested rights and could not be taken for any purpose without compensation.</p> <p>9. -: -: Adjudication. The provision of the act of 1911 (laws 1911, ch. 153, sec. 21) that “no permit to irrigate any land shall be allowed unless the owner or owners of such land shall give consent to the same in proper form” should be applied by the state board when adjudicating appropriations under prior acts; and in this case, begun soon 'after the act of 1911 took effect, the state board was right in allowing the applicant to obtain and file the consent of the owners of land under the ditch while the proceedings were pending before the board.</p> <p>10. -: -: Regulation. The use for which water is appropriated must be a reasonable use. The right to use the water so appropriated must be exercised with reference to the general condition of the country and the necessities of the people, and not so as to deprive a.whole neighborhood or community of its use without any benefit to any one. The state board will by regulations from time to time allow subsequent appropriators such use of the water as will not substantially deprive the prior appropriator of his beneficial use thereof.</p> <p>11. -: -: -. The determination by the state board of the amount and priority of an appropriator is without prejudice to such subsequent rules and regulations as will insure a proper use of the rights so determined.</p> <p>12. -: -: Appeal: Evidence. The evidence is found to sustain the findings and decision of the state board.</p>

<p>Error to the district court for Douglas county: James P. English, Judge.</p>

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

<p>1. Statute of Frauds: Parol Evidence: Joint Undertaking. Where the plaintiff and two other men endeavored in association with each other to procure a purchaser for a certain tract of land at a price satisfactory to the seller, and he accepted their services, and' each contributed time and labor to the common plan and assisted in its execution, in an action by the plaintiff against the other two to recover his share of the profits of the transaction, the relation of the parties may be established by parol, and the provisions of section 3, ch. 32, Comp. St. 1911, do not apply to such persons, or determine the relations between them. Stewart v. Mather, 32 Wis. 344.</p> <p>2. Appeal: Conflicting Evidence. In such case, where the parties failed with their first proposed customer to consummate a sale, .but succeeded with their next one, and there is a conflict of testimony as to whether the plaintiff participated in making the sale to the second customer, it is for the jury to find the facts, and their verdict will not be disturbed if there is evidence to support it.</p>

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

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

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

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

<p>1. Fraudulent Conveyances: Remedy oe Creditors: Bulk Sales. Where the owner of a stock of implements sells his stock in hulk without complying with the provisions of section 2651, Rev. St. 1913, commonly called the “Bulk Sales Law,” and immediately thereafter dies intestate and insolvent, a creditor of the seller, as soon as he ascertains the facts, may proceed in a court of equity for the appointment of a receiver to impound the stock of goods, have the same sold, and the proceeds applied to the payment of his claim.</p> <p>2. -: -: -. In such a proceeding the other creditors of the seller may intervene, and the court may distribute the proceeds of the sale pro rata among the several creditors according to the amounts of their claims.</p> <p>3. - — : -: -. In such case the creditors of the decedent will not be required to reduce their claims to judgment and have executions returned nulla bona, nor file them in the probate court for allowance, before they can proceed to impound the stock of goods and subject it to the payment of their claims.</p> <p>4. -: Bulk Sales: Purchaser a Trustee. In such a case the purchaser in possession of the stock of goods who has not complied with the bulk sales law will be held to have received the property in trust for the benefit of the creditors.</p> <p>5. -: -: Creditors’ Suit: Parties. The person in whose possession the goods are found is a necessary party to the proceedings, but other purchasers through whose hands the goods have passed, and who are shown to have no creditors and no present interest in the property, are not necessary parties, and the action may be dismissed as to them, when they seek no affirmative relief.</p>

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

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

<p>1. Taxation: Assessment of Personal Property. The revenue law as to the assessment of personal property examined, as set out in the opinion, and construed to mean that such property shall be listed and assessed with reference to the quantity held or owned on the 1st day of April in the year for which the property is required to be listed.</p> <p>2. -: -: Evasion. One who owns personal property subject' to taxation at the time when it is returnable for assessment and taxation for any year cannot escape liability for the tax for such year by subsequently devoting the property to a purpose which would thereafter render it not subject to taxation, nor by a sale of such property to a municipal or other corporation, in whose hands such property thereafter would not be subject to taxation.</p>

<p>Municipal Corporations: Suit to Disconnect Land: Sufficiency of Evidence. The evidence examined and set out in the opinion, held, ample to sustain the judgment of the district court.</p>

<p>1. Nuisance: Abatement: Purpose of Act: Construction. Chapter 63, laws 1911, is entitled “An act to enjoin and abate houses of lewdness, assignation and prostitution, to declare the same to be nuisances,” etc., and it is designed to provide means of suppressing houses devoted to such purposes. A house maintained as a place for lewd men and women to congregate for immoral purposes is within the terms' of the statute.</p> <p>2. -: -: Enforcement of Act. The statute is strenuous; there should be proof that the place complained of is in fact a house of lewdness, assignation or prostitution. When that fact is satisfactorily established, the statute should be liberally construed in applying the remedy given.</p> <p>3. -: -: Evidence: “General Reputation.” The general reputation of the house and of the people, men and women, who frequent it may be shown, but it must be the general reputation among people who are in the position to form an opinion. Proof of such general reputation is received as other evidence in the case, and is not of itself necessarily conclusive.</p> <p>4. -: Statute to Abate Disorderly House: Validity: Quaere. The fourth paragraph of the syllabus of our former opinion in this cafee (96 Neb. 123) is withdrawn, and the question whether section 8782, Rev. St. 1913, providing for a tax of $300, and the payment of a fraction thereof to the attorney prosecuting the case, is unconstitutional is not decided.</p> <p>5. Quaere. Whether that part of section 8779, Rev. St. 1913, which provides that, if the existence of a nuisance is established in a criminal proceeding (see Rev. St. 1913, secs. 8783, 8845), an order of abatement shall be entered the same as in the action in equity provided for in preceding sections, is constitutional and valid, qucere.</p> <p>6. Constitutional Law: Nuisance: Validity of Statute. O.ur former decision in this case as to the constitutionality of chapter 63, laws 1911, except as above indicated, is adhered to.</p> <p>7. Nuisance: Suit to Abate: Sufficiency of Evidence. -The evidence indicated in this and our former opinion herein is found insufficient to support the decree.</p>

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

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

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

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

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

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

<p>1. Municipal Corporations: Grading of Streets: Injunction, The pleadings and evidence examined, and found to sufficiently support the decree of the district court.</p> <p>2. -: -: Right to Damages. The mere establishment oi a grade of the streets in a city does not damage the property which would be affected by the change in the physical grade oi the streets. It is the change in the surface of the streets which creates the damage, if any, and for which the allowance of damages . must first he provided. If no change is ever made or undertaken, there is no damage.</p> <p>3. -: --■. Where the grade of the streets of a city has been established and the level of the street reduced in part to the grade, and only a limited expense would be incurred in finishing the grade, the work may be completed .by the city authorities without the formality of requiring an estimate to be made by the city engineer, bids advertised for, assessment of damages made, and special taxes levied. Where the work to be done is so slight, it may be done by the city under the direction of the proper officer thereof and payment therefor made from the proper revenues of the city.</p> <p>4. -: -: Damages: Limitations. The statute of limitations will not begin to run against a lot owner suffering damage from the establishment of the grades of adjacent streets until some action is taken by the city to change the streets to the grade.</p>

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

<p>1. Sales: Acceptance. Where the purchaser of lumber, who is known to the seller to be a jobber, after an inspection and rejection oi the shipment, attempts to sell the lumber to other purchasers, while acting under the order of the seller to “use to best advantage,” his attempts will not amount to an acceptance.</p> <p>2. -: Refusal to Accept: Sufficien o y of Evidence. Evidence examined, and found sufficient to justify the defendant in refusing to accept the shipment.</p>

<p>1. Street Railways: Use op Streets. The general public has an equal right with a street car company upon a public street of a city, but has not at all times the same right upon the track of the street ear company. The public has a complete right to cross or drive upon the street car tracks, but not so as to hinder or interfere with the cars operated thereon.</p> <p>2. -: Operation op Cars: Duty to Avoid Collisions. The motorman of a street car is not necessarily obliged to stop his car when he sees a man driving in a vehicle along the line of railway ahead of the car; but he may continue to run the car in a proper manner until it appears that the driver is in danger and is unaware or heedless of his danger. It is then his duty to use all reasonable care and diligence to avoid a collision. Seeing a man driving along the track, the motorman may assume that he will turn. aside and out of the way of the car, but he cannot rest on the assumption so long as to allow his car to reach a point where it will be impossible for him to control his car or give warning in time to prevent injury to the man or vehicle.</p> <p>3. -: -: Care Required. In such a case the motorman in charge of the car should use the care and diligence which an ordinarily prudent person would use under the circumstances.</p> <p>4. -: -: Collisions: Liability. It is equally the duty of any person driving upon or across a street car track not to unnecessarily hinder, delay or impede the operation of cars thereon at the proper rate of speed at that time and place, and if he negligently does so, and by reason of such negligent act he is injured, he cannot recover, unless those in charge of the street car failed to exercise ordinary' care to avoid a collision after they knew, or in the exercise of ordinary care should have known, his dangerous situation. Omaha Street B. Co. v. Larson, 70 Neb. 591.</p> <p>5. Evidence: Opinions. Opinions of witnesses derived from observation are admissible in evidence when, from the nature of the subject under investigation, better evidence cannot be obtained; and this principle is applicable to indications of pain and suffering, even though observed some time after an injury.</p> <p>6. Appeal: Admission of Evidence: Review. If testimony not properly admissible is brought out by a proper question, and no motion to strike it out is made at the trial, the error is not subject to review.</p> <p>7. Instructions, the substance of which are set forth in the opinion, held to be inconsistent with the main issue as stated by the court, and to be prejudicial to defendant.</p> <p>8. Damages: Personal Injury: Improper Exhibitions. Exhibitions to the jury of scars of bodily injuries should not be permitted, unless they furnish evidence material to the issues to be determined.</p> <p>9. Appeal: Requested Instructions: Review. A party, after having requested the giving of an instruction, cannot afterwards complain that it was erroneous.</p>

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

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

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

<p>1. Railroads: Receiver’s Sale: Liability of Purchaser. A decree, requiring the purchaser of a railroad at a receivers’ sale to pay, in addition to the bid, all liabilities incurred by the receivers in their operation of the road, includes the damages recoverable in an action at law for personal injuries to one of their railroad employees.</p> <p>2. -: Action for Injury to Employee: Petition: Sufficiency. In an action for personal injuries, a petition pleading facts which entitle plaintiff to relief under the doctrine of the last clear chance will not be held, insufficient on appeal, because the principle of law under which he is entitled to a recovery is not stated.</p> <p>3. Trial: Instructions. An instruction, stating the law applicable to an issue of fact established in plaintiff’s favor by the evidence without dispute or contradiction, is not erroneous, . because it fails to require a finding on that issue as a condition of granting him relief.</p> <p>4. Contributory Neligence: Question for Jury. Where the evidence on a controverted issue of contributory negligence in an action for personal injuries is sufficient to sustain a verdict for plaintiff, the disputed question of fact is one for the jury.</p> <p>5. Railroads: Injury to Switchman: Negligence: Evidence. In the switch yards of railroads the speed of an engine on a track upon which switchmen stand at regular times and places daily, pursuant to a known custom, for the purpose of giving signals, may be evidence of negligence where such engine approaches without signal or warning of any kind.</p> <p>6. Evidence: Annuity Tables. In an action' for personal injuries resulting in the permanent impairment of plaintiff’s earning capacity, annuity tables are admissible in evidence and may be considered by the jury in connection with other competent proofs.</p> <p>7. Damages. A verdict for $16^000 for personal injuries, under the facts disclosed by the record, held not excessive.</p>

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

<p>1. Mortgages: Foreclosure Sale: Exhaustion of Remedy. For the purpose of collecting the amount due on a real estate mortgage, mortgagee’s equitable remedy by foreclosure, in absence of a deficiency judgment, is exhausted by a valid judicial sale of the mortgaged property under a decree foreclosing the mortgage.</p> <p>2. -: Foreclosure: Deficiency Judgment. After realty has been sold under a decree foreclosing a first and a second mortgage thereon, the junior mortgagee is entitled to a deficiency judgment for any unpaid debt due on his mortgage, and this remedy is not lost, because the entire purchase price at the judicial sale was applied to prior liens.</p> <p>3. -: -: Revivor of Decree. A decree foreclosing a mortgage on realty is not a judgment subject to revivor after the mortgaged property has been legally sold and the sale duly confirmed under a decree of foreclosure.</p> <p>4. -: -: Deficiency Judgment. On the ground of laches. a court of equity may decline to enter a deficiency judgment in a suit to foreclose a mortgage on realty, where that remedy was-open and uninvoked without excuse for more than 14 years after the property had been sold under a decree of foreclosure.</p>

<p>1. Marriage: Annulment: Evidence. In a statutory proceeding to annul a marriage on the ground that “the consent of one of the parties was obtained by force or fraud,” evidence proving that there was “no subsequent voluntary cohabitation of the parties” is essential to plaintiff’s case. Comp. St. 1911, ch. 25, sec. 2.</p> <p>2. Appeal: Affirmance. A proper judgment under the pleadings and the evidence will not be reversed on appeal, merely because the trial court did not give the right reason for the decision.</p>

<p>1. Judgment: Modification after Term. The statutory remedy for ¡correcting a judgment after expiration of the term at which it was rendered is limited to the grounds enumerated in the statute. Code, sec. 602 (Rev. St. 1913, sec. 8207).</p> <p>2. -: -. A motion to correct a decree hy allowing interest at 10 per cent, per annum after maturity of the debt, instead of a lower rate for that period, as originally fixed by the trial court, should be overruled on a record showing that the decree was entered as pronounced; that the term at which it' was rendered was allowed to pass without any effort to correct it; that it had been affirmed by the supreme court; that there had been no attempt to correct the error on appeal; that the journal entry of the decree disclosed no error in the rate of interest; that the motion required a judicial inquiry into evidence outside of the decree itself.</p>

<p>Appeal in Equity. “Where the examination of the record on appeal in a suit in equity leaves an appellate court in doubt as to the equities between the parties, the doubt depending solely upon the credibility of material witnesses who testified-orally upon the trial, such doubt will, ordinarily, be resolved in favor of the correctness of the judgment of the trial court.” Langmann v. Guernsey, 95 Neb. 221.</p>

<p>1. Torts: Joint and Several Liability. An act wrongfully done by tbe joint agency or co-operation of several persons, or done contemporaneously by them without concert, renders them liable jointly and severally.</p> <p>2. Highways: Operation op Automobiles: Concurrent’ Negligence. ' Evidence examined, and set out in the opinion, held, sufficient to establish concurrent negligence on the part of the defendants, which rendered them jointly and severally liable therefor.</p>

<p>Appeal: Conflicting Evidence. The verdict of a jury, based upon evidence so conflicting that it would have sustained a verdict either way, will not, ordinarily, be disturbed on appeal.</p>

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

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

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

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

<p>1. Contracts: Rescission: Equitable Relief. Where the defendant, represented to the plaintiff that the land he was about to trade to him for a valuable farm was of much greater value than it actually possessed, and the plaintiff was thereby induced to trade with the defendant, greatly to the plaintiff’s disadvantage, and. to deliver to the defendant a property greatly exceeding in value the consideration received, and the plaintiff was dependent upon the defendant for the information upon which he relied in making the trade, such judgment should be rendered as in equity and good conscience the evidence demands.</p> <p>2. -: -: Fraud: Mentad Capacity. The plaintiff, although not wholly insane, was shown to he mentally weak and a man of poor judgment, and in such case if the weak mental condition of the plaintiff enabled the defendant the better to take advantage ,of the plaintiff, and he did take advantage of him, and thereby fraudulently acquired the plaintiff’s property for much less than its true value, the contract should be rescinded at the plaintiff’s request, and the plaintiff should recover his property; and it will be immaterial whether the plaintiff was wholly insane at the time the trade was made.</p>

<p>1. Criminal Law: Appeal: Affirmance. Where the evidence upon, the trial of a case is in direct conflict upon every material controverted fact, the verdict of the jury should not be overturned if there is sufficient evidence to support it. Witt v. Caldwell, 95 Neb. 484; First Nat. Bank v. Hedgeeook, 87 Neb. 220.</p> <p>2. Assault and Battery: Instructions. Instructions given, examined and sustained, as also the refusal to grant requests for instructions.</p>

<p>1. Trial: Opening Statement. Considerable latitude must be allowed counsel at tbe commencement of a trial in making the opening statement in which he states the evidence by which he expects to sustain his cause of action or defense. The mere fact that he fails to prove all he expected to prove, if true, does not necessarily establish the fact that the statement was intentionally false.</p> <p>2. Pleading: Answer: New Matter. “In order to be available in an action, new matter constituting a defense must be pleaded in the answer. It cannot be introduced under a general denial.” Gran v. Houston, 45 Neb. 813.</p> <p>3. Intoxicating Liquors: Action on Bond: Defense. In an action upon a saloon-keeper’s bond for damages for a loss of means of support growing out of the sale of intoxicating liquors to the husband and father of plaintiffs, the fact that such husband and father was a drinker, or even a drunkard, before the time charged as the beginning of the sales would not of itself defeat a recovery, if liquors sold to him after such time by defendant contributed to keeping him in that condition.</p> <p>4. Trial: Instructions. The action of the court in refusing to give instructions asked by defendants, and which is assigned for error, is examined, and no prejudicial error found.</p> <p>5. Constitutional Law: Stooumb Act. The question of the constitutionality of the act of 1881, commonly known as the “Slocumb Law” (Rev. St. 1913, ch. 40) having been passed upon so often by the courts, and no special reason being assigned in the brief of defendants why or how the act is violative of the constitution, the question is not reexamined.</p>

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

<p>1. Criminal Law: Verdict: Conflicting Evidence. Where the evidence is conflicting, it is the province of the trial jury to pass upon the testimony, and, unless the finding is clearly wrong, it is final. This rule applies with equal force to the testimony in a criminal prosecution as in a civil suit.</p> <p>2. Rohhery: Sufficiency of Evidence. The evidence is held sufficient to sustain the verdict. ■</p> <p>3. Criminal Law: Instructions: Failure to Define Lesser Offense. “In a prosecution for a felony, error cannot be predicated upon the failure of the trial court to define a lesser offense included in the crime charged, unless requested so to do.” Barr v. State, 45 Neb. 458.</p> <p>4. -: -: Intoxication of Accused. The same rule must be applied when the evidence establishes the fact of the intoxication of the accused and no instruction was requested upon that point.</p>

<p>1. Waters: Obstruction of Stream: Rigi-it to Use of Water. One-whose premises are situated on a stream of water will not be permitted to obstruct the natural flow of the stream in such a manner as to deprive another, who is rightfully in possession of a tract of land situated on the stream below, of water for domestic: use, including water for his stock, unless such use will deprive the-upper proprietor of water necessary for his own use.</p> <p>2. -: -: -. Where the testimony clearly shows that the upper proprietor has obstructed the flow of the stream in such a manner as to wilfully deprive another of the use of water for the purposes above mentioned, and that the upper proprietor had no use for the water for irrigation or other purposes, he wilL ,be liable for all the damages occasioned thereby. The question of' riparian rights does not arise in such a case.</p> <p>3. - Appeal: Affirmance. Where plaintiffs’ claim for damages and* defendant’s counter-claim for trespass by plaintiffs’ cattle are submitted to the jury under proper instructions, the verdict will not be set aside, unless, upon the whole record, it appears to be clearlywrong.</p> <p>4. Instructions examined, and found to contain no reversible, error.</p>

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

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

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

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

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

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

<p>1. Municipal Corporations: Power to Levy Tax. A village has no-inherent power to levy taxes.</p> <p>2. Statutes: Construction. In order to ascertain the intention of the .legislature in the amendment of a statute, the course of legisla- . tion on the subject and existing conditions created under the former statutory provisions may be considered. A</p>

<p>1. Appeal: Excessive Verdict: Reversal. Where it is evident that, in fixing the amount of the verdict, the jury disregarded the instruction of the court as to the basis of recovery, and the verdict is so excessive that it must have been the result of passion or prejudice, the judgment will he reversed.</p> <p>2. Trial: Instructions: Statement oe Issues. Where a petition contains allegations of fact not supported by any evidence, it may be reversible error to include such statements in that part of the charge of the court defining the issues to he tried, and, if the reviewing court is satisfied that the jury has been misled by so doing, it will he its duty to grant a new trial.</p>

<p>Appeal from the district court for Keya Paha county R. R. Dickson, Judge.</p>

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

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

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

<p>1. Contracts: Building Contract: Bond: Liability op Sureties. A stipulation in a contract for the erection of a building, that the contractor will provide all of the materials and perform all the work, constitutes a promise by the contractor to satisfy the lawful claims of mechanics and laborers, and the sureties on his bond for the faithful performance of the contract are liable for a breach of such condition, and such bond inures to the benefit of a mechanic or laborer.</p> <p>2. -: Bonds: Reformation. Where a surety bond furnished by a contractor contains two inconsistent stipulations, the first of which renders the surety liable for the faithful performance by the contractor of all the conditions in the bond, and the second relieves such surety from liability therefor, the bond may be reformed in equity, when it is made to appear by pleading and proof that the second stipulation was inserted by fraud, or by mutual mistake or inadvertence.</p> <p>3. School Trustees: Building Contract: Liability of Trustees. Where school trustees, acting as a school board in letting a contract for the erection of a school building, act tin good faith and require the contractor to give a bond which they deem sufficient to protect all parties interested, such trustees will not be held individually liable to one who performs work and labor upon such building under employment by the contractor, even though the bond be not conditioned in the exact terms of section 7117, Ann. St. 1911. In order to establish such individual liability, the burden is upon the plaintiff to plead and prove that the action of the trustees was wilfully wrong.</p>

<p>1. Criminal Law: Error: Review. Where the evidence in a criminal case tried in the county court is certified to the district court in the form' of a hill of exceptions, which is used therein to maintain a petition in error filed in that court, this court, in a proceeding in error to review the judgment of the district court, will examine the entire proceeding, and affirm or reverse the judgment of the district court as the law demands.</p> <p>2. Municipal Corporations: Disorderly Houses: Legality. The maintenance of houses of prostitution may not lawfully he permitted • in a city, although the purpose is to segregate immoral persons from the better class of citizens, for the protection of the latter .from the force of evil example and dangerous associations:</p> <p>3. -: -: Sufficiency of Evidence. The evidence examined, and held sufficient to sustain the judgment of the district court.</p>

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

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

<p>1. Bills and Notes: Defenses. When a negotiable note is purchased after maturity from an innocent holder who purchased it before maturity for value, the purchaser takes it free from all equities, and defenses that existed between the original parties to the paper.</p> <p>2. -: -: Directing Verdict. In a suit on such a note, it is .proper for the trial court to direct a verdict in favor of the plaintiff, where the uncontradicted evidence of witnesses whose credibility is not questioned shows that plaintiff purchased it for value from an innocent holder, who obtained it by purchase for full value before its maturity.</p>

<p>Judgment: Summons: Setting Aside Return. The return of an officer that he has served a summons cannot be impeached, except by clear and satisfactory evidence; but, if the evidence is sufficient, a judgment based upon a false return may be set aside in equity.</p>

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

<p>1. Criminal Law: Evidence: Confessions. The accused, while in a precarious condition from being overheated, was cared for by the sheriff at Burlington, Kansas. Upon his making inquiry as to the relatives of the accused so that they ■ might be notified in order to care for him Shellenberger requested that the officers at Nebraska City be informed, giving as a reason that he had been implicated in a murder near that place. The sheriff wrote to Nebraska City, but the officers referred to took no action. Upon beings so informed, accused requested that the sheriff of Nemaha county, Nebraska, be notified, and told that he had been implicated in a murder committed in that county some 13 or 14 years before. He gave the details of the murder at length, which he repeated to the sheriff of Nemaha county when he arrived. Held, That the confession being voluntarily made before arrest, and before any accusation had been made, was properly received in evidence.</p> <p>2. -: -: -. The father of the accused was for years afflicted with Saint Vitus dance. His mother was a woman of violent temper and an epileptic. In his boyhood the accused was also afflicted with Saint Vitus dance. He is below the average in intelligence. The evidence, unaided by the confession, is not sufficient to sustain a conviction. Under these circumstances, every fact tending to throw any light upon the truth or falsity of the confession should be submitted tb the jury, and since mental tendencies, peculiarities and predispositions may extend over a lifetime, the fact that he had made a false ' confession in 1890 that he was guilty of another murder was not too remote to be admissible in evidence.</p> <p>3. -: Reversal: Exclusión oe Evidence. A double murder was committed near the city of Omaha in 1890. The guilty person - was apprehended, tried, convicted, and executed. Soon after the murder, defendant was arrested, charged with complicity in that crime, to which he made a confession. It was afterward shown that the confession was uhtrhe, and the prosecution was dismissed. At this trial, in order to aid the jury to determine the weight to be given to the confession made by accused as to the murder of Bahuaud and to show the abnormal condition of the defendant’s mind, it was sought to prove that he had made such previous false confession. This evidence was excluded upon objection by the state. Held, That this ruling was prejudicially erroneous.</p> <p>4. -: Cautionary Instruction: Police Officers. A cautionary instruction as to the evidence of police officers is only proper to be given when the officer is a witness for the state in the endeavor to convict the accused.</p> <p>5. -: Evidence: Opinions. A nonexpert witness may, after detailing the facts and circumstances upon which he bases his opinion, give his opinion upon the question of sanity, but he is not permitted to express his opinion without disclosing the facts upon which it is based.</p> <p>6. -: Irrelevant Evidence. Error cannot be predicated upon the admission of testimony which at the time seems relevant. If by reason of further facts it appears to be irrelevant and prejudicial, defendant should move to strike it from the consideration of the jury, otherwise he cannot complain.</p> <p>7. -: Instructions: Confession. An instruction, which stated in direct terms that “the confession of defendant, -if he made such confession, is competent evidence to prove' his connection with such crime,” without further instruction sufficiently qualifying-the direct statement under the facts in this case, should not have been given.</p> <p>8. -: -: Reasonable Doubt.. Instructions given upon the subject of reasonable doubt criticized.</p>

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

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

<p>Name, Change of. Under the statute requiring sufficient and reasonable cause for a change of name, a decree is not a matter of right, hut of judicial discretion. Rev. St; 1913, ch. 53.</p>

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

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

<p>1. Trial: Instructions: Issues. When the trial court instructs the jury as to what issues are submitted tor their determination, it is not required that the court should tell the jury the reason for so limiting the issue.</p> <p>2. Evidence: Contents of Written Instrument. It is not competent to prove by a witness on the stand the contents of a paper which he holds in his hands while testifying.</p> <p>3. Witnesses: Impeachment. It is not competent to question a witness as to immaterial matters for the purpose of laying a foundation for impeachment.</p> <p>4. Trial: Misconduct of Jury. A juror must not state to his fellow jurors material facts not in evidence hut within his personal knowledge. If a juror states in the jury room that he is expert in matters of handwriting and can determine a disputed fact from an inspection of papers in evidence or declares that a party to the suit is liable because of some fact proved that would not, as matter of law, justify such finding, this does not constitute such misconduct of the jury as requires a reversal. Assertions of opinion and boasting of ability or expert knowledge are said to “inhere in verdicts,” and the law will not regard such matters as misconduct.</p>

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

<p>Appeal from the district court for Franklin county: Ernest B. Perry,'Judge.</p>

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

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

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

<p>1. Appeal: Review: Pleading. When part of au answer is stricken out by tbe court, and no exception is taken to such ruling, and an amended answer is filed upon which the case is tried, error cannot be predicated upon such ruling of the court.</p> <p>2. -: Affirmance. The evidence is found sufficient to support the verdict, and, no error being pointed out requiring a reversal,, the judgment is affirmed.</p>

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

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

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

<p>1. Death: Presumption. Where absence of the person insured is shown to have continued for seven years or more, unaccompanied by circumstances which reasonably account therefor on a theory not involving death, it is sufficiently strong to cast the burden of rebutting it on the party who asserts the continuance of life.</p> <p>2. -: -: Sufficiency of Evidence. The evidence examined, and held sufficient to warrant the presumption of death from the absence shown.</p>

<p>1. Counties: Commissioners: Orders: Validity. Where one of the county commissioners has moved out of the commissioner district in which he resides into the district of another commissioner, and who continues to act as a member of the county board, the fact of such removal does not render an order of such county board a void order.</p> <p>2. -: Bonds: Validity. Where a special election is held to issue bonds for the purpose of building and furnishing a courthouse and jail, and the same has been ordered to be held by the .county board and the proper steps have been taken in the regular way to cause such election to be held, and the bonds are carried, there is no reason to attack their validity because one of the members of the board had moved into another commissioner district.</p> <p>3. Evidence examined, and held to sustain the judgment of the district court.</p>

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

<p>Limitation of Actions: Assault and Battery. A civil action for damages for an assault and battery with circumstances of aggravation must, under section 13 of the code, be begun within one year after the cause of action accrued.</p>

<p>1. Assault and Battery: Right to Recover. The plaintiff, in an action for damages for an assault and battery, cannot recover when he is shown to have been the aggressor, unless the defendant, in repelling the plaintiff’s assault, has used more force than would appear necessary to an ordinarily prudent man under libe circumstances.</p> <p>2. Appeal: 'Affirmance. This court will not set aside the verdict of a jury as unsupported by the evidence, unless it is clearly wrong.</p>

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

<p>1.' Mortgages: Foreclosure: Appraisement: Confirmation: Review. Where objections to an appraisement and the confirmation of sale ar'e without merit, it is not reversible error for the trial court to strike them from the files.</p> <p>2. -: -: Deficiency Judgment. A finding in a decree of foreclosure of the amount due from the mortgagor to the plaintiffs, who are the mortgagees, will authorize the court, on confirmation of sale, to render a deficiency judgment. Crary v. Buck,, 1 Neb. (Unof.) 596.</p>

<p>Executors and Administrators: Final Account: Credits: Sale of Land: Payment of Liens. An administrator, who, in selling mortgaged land for the payment of debts, pays prior liens in good faith out of the proceeds of the sale, and complies with an order of court to take a first mortgage for a portion of the unpaid purchase price, is entitled in his final account to credit for the amount thus paid, where the land sold for its full value, and the sale was approved and confirmed by the court, though the statute requires such sales to be made subject to existing liens.</p>

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

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

<p>Judgment: Lien on Realty. A judgment creditor, by transcripting his judgment to the district court, does not obtain a lien upon real estate -which has been conveyed to a third party by the judgment debtor by a duly recorded deed.</p>

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

<p>1. Insurance: Mutual Benefit Association: Directors. The by-laws of a mutual benefit association specified in detail the duties of the president of the association. These did not include duties as a member of the board of directors, of which the president was ex officio a member. Another by-law provided that, in the absence ,of the president, it should be the duty of the vice-president to perform the duties belonging to the office of president. Held, That the president alone became ex officio a member of the board of directors, and that the vice-president did not, in the absence of the president, become a member of such board.</p> <p>2. -: -: Suspension of Member: Nonpayment of Assessment. When the failure to pay an assessment is claimed as a reason for the suspension of a member of a mutual accident association, which suspension forfeits the interest of the member in the association, the assessment must be made by a legally constituted body under the charter and by-laws of the association. If the assessment is not made by such a body, no suspension for its nonpayment can be made.</p>

<p>1. Corporations: Right to Sue: Forfeiture of Charter. After the charter of a corporation has been forfeited, under the act of 1909, for nonpayment of the occupation fee, an action cannot he prosecuted in the corporate name. Laws 1909, ch. 26.,</p> <p>2. -: -. The provisions of the general corporation law, authorizing dissolved corporations to sue in the corporate name, do not apply to a corporation whose charter has been forfeited, under the act of 1909, for nonpayment of the occupation fee. Comp. St. 1909, ch. 16, secs. 62, 67, 68; laws-1909, ch. 25.</p>

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

<p>1. Master and Servant: Release: Consideration: Parol Evidence. An oral promise by an employer to pay an employee bis regular salary during a temporary disability may be shown by parol to be a part of the consideration for a release of the employer’s liability for personal injuries, though the employee signed a release for the expressed consideration of a specific sum of money.</p> <p>2. Principal and Agent: Contract by Agent: Acceptance oe Benefits. A principal who accepts the benefits of a contract executed in his behalf by an agent is chargeable with the instrumentalities employed by the latter in procuring it.</p>

<p>1. Limitation of Actions: Mortgage Foreclosure: Redemption. The statute of limitations does not begin to run against mortgagor’s right to redeem the mortgaged land from a void foreclosure sale, until possession is taken under the mortgage or the foreclosure.</p> <p>2. Adverse Possession: Presumption: Unimproved Land. The law presumes that the holder of the. legal title is in possession of unimproved and unoccupied land.</p> <p>3. Limitation of Actions: Action Quia Timet: Possession. The statute of limitations does • not begin to run against an action to remove a cloud from the title of a landowner while he is in exclusive possession.</p>

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

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

<p>1. Continuance: Absence of Witness. The absence of a witness is not ground for a continuance, where his testimony would be inadmissible under the issues.'</p> <p>2. Sales: Offer to Return Property: Withdrawal of Offer. A rejected offer to return a purchased chattel to the seller may be-withdrawn by subsequent acts of the purchaser in using and in treating the property as his own.</p> <p>3. Appeal: Notes: Consideration: Evidence. “Where a defendant pleads a total failure of consideration as a defense to an action on a promissory note, and his evidence at most tends to prove only a partial failure of consideration, it is not error to refuse-to submit that defense to the jury.” Sibley & Davis v. Rodgers, 90 Neb. 497.</p> <p>4. Appeal: Exclusion of Evidence. Error cannot be predicated on the exclusion of testimony not within the issues.</p>

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

<p>1. Divorce: Culpability of Plaintiff. A court of equity will not grant a divorce to one whose conduct has been such as to furnish sufficient grounds for divorce, even if the conduct of the other-party lias been grossly more culpable. In sucb case tbe court will deny relief to either.'</p> <p>2. —-: Appeal: Conflicting Evidence. In sucb action, if tbe evidence is principally oral and is conflicting, and tbe determination of tbe issues depends upon tbe reliability of tbe respective wit- . nesses, tbe conclusion of tbe trial court as to sucb reliability will be carefully regarded by tbis court upon review of tbe evidence.</p>

<p>1. Taxation: Personalty of Nonresident. Personal property in the possession of the owner at his place of residence in another state is not subject to taxation by the authorities of any county in this state.</p> <p>2. Evidence examined, and held to sustain the judgment of the district court.</p>

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

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

<p>1. Municipal Corporations: Unplatted Land: Right to Detach: Estoppel. The fact that unplatted land used exclusively for agricultural purposes was included in the incorporated limits of a village with the tacit permission of a former owner does not estop his grantee from proceeding under section 5090, Rev. St. 1913, to have it disconnected therefrom.</p> <p>2. Appeal: Affirmance. A judgment of the district court in such proceeding will not be reversed, in the absence of a showing that . the trial judge committed an important mistake of fact, or made an erroneous inference of law. Gregory v. Village of Franklin, 77 Neb. 62.</p>

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

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

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

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

<p>Appeal: Conflicting Evidence. A judgment based upon the verdict of a jury, rendered upon conflicting evidence, will not be set aside-unless it is manifestly wrong.</p>

<p>1. Telegraphs and Telephones: Negligence: Liability. A telegraph company is liable for all damages sustained by reason of its failure to correctly transmit and deliver a message received by it, notwithstanding an agreement printed on its blanks to the contrary. Rev. St. 1913, sec. 7406.</p> <p>2. -: Torts: Damages. The sender of a message, who has been damaged by the failure of a telegraph company to deliver it as written, may waive the contract and sue as in tort, and in such case he is entitled to compensation for all damages which are directly caused by or flow from the negligent omission, regardless of whether they might have been contemplated as a probable result of a breach of the duty. Chicago, B. & Q. R. Co. v. Spirh, 51 Neb. 167.</p> <p>3. -: Negligence: Liability. A telegraph company, which accepts a-message to be delivered, beyond its own lines and delivers the same incorrectly, is liable for the mistake, although made by an employee of another corporation over whose lines the sending company transmitted the message.</p> <p>4. -: -: Defenses. As against one who employs an express company to transmit money by wire, the fact that by a rule of the express company its agents are required to send messages directing the payment of money in code words, does not constitute the express company a joint tort-feasor with a telegraph company which failed to correctly deliver the message (which designated the amount of money to be paid in plain words) and constitutes no defense in an action for damages,1 for such failure, by the express company against the telegraph company.</p> <p>5. -:-: Damages: Direction of Verdict. Where the amount of damages sustained by reason of the failure to deliver a message .correctly is proved by undisputed evidence and is liquidated, it is not error for the district court to apply principles of law to the undisputed facts and direct a verdict for plaintiff.</p>

<p>1. Negligence: Acts Done in Emergency. On the issue of contributory negligence in an action to recover damages for personal injuries, where plaintiff was placed in a position of sudden peril without any fault on his part, the test of -his conduct is that of a person of ordinary prudence confronted with the same circumstances, and this rule applies to cases in which the emergencies arise from accidents or from acts of third persons or from negligence of the defendant.</p> <p>2. -: Questions for Jury: Conflicting Evidence. In actions to recover damages for personal injuries, issues of negligence and contributory negligence are questions for the jury, where the evidence is conflicting.</p> <p>3. Master and Servant: Assumption of Risk. An employee does not assume the risk of actionable negligence on the part of his employer.</p>

<p>Master and Servant: Injury to Servant: Actionable Negligence. Where an employee voluntarily goes outside of tbe scope of his employment without the permission or the knowledge of. his employer, and operates a rip-saw by which he is injured, the employer Is not chargeable with actionable negligence for failing to give warnings of danger or instructions to prevent injury.</p>

<p>1. Larceny: Inference of Guilt: Unexplained Possession. In a prosecution for cattle-stealing, the jury may infer guilt from defendant’s unexplained possession of the recently stolen animals.</p> <p>2. Criminal Law: Withdrawal of Rest:' Discretion. In a prosecution for larceny, it is within the discretion of the trial court to permit the state to withdraw its rest and prove the ownership of the property as charged in the information.</p> <p>3. -: Instructions: Construction. In a criminal prosecution, an instruction that defendant is entitled to the presumption of innocence as a matter of evidence, and another instruction that the evidence is what is said by the witnesses on the stand, should be construed together, and, when thus considered, they are not inconsistent or erroneous.</p> <p>4. -: Appeal: Affirmance. In the appellate court, a judgment will not be reversed unless error in the proceedings below is affirmatively shown by the record.</p> <p>5. -: -: Refusal of Instruction. The refusal to give a requested instruction is not erroneous, where its substance is properly given in a different form.</p>

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

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

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

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

<p>1. Indictment: Receiving Stolen Goods: Duplicity. The statute provides that an indictment for larceny of personal property may also contain a count for receiving or for, concealing the same. Rev. St. 1913, sec. 9057.</p> <p>2. -: -: -. In a prosecution for receiving stolen property, it is necessary to allege and prove that the defendant knew that the property was stolen. Evidence that he participated in the larceny is competent for that purpose. The conviction will not he reversed because the defendant is also charged with the larceny.</p> <p>3. Criminal Law: Venue. Receiving property in this state, knowing it to be stolen and with intent to defraud the owner, may be prosecuted in this state, although it was stolen in a foreign state.</p> <p>4. -: Misconduct oe Jury: Showing. The district court did not err in refusing to order a juror to appear and make affidavits of matters occurring in the jury room which would not amount to such misconduct of the jury as to require the court to set aside the verdict.</p> <p>■ 5. Receiving Stolen Goods: Proof. In a prosecution for receiving stolen property, it must be alleged and proved that the defendant received the property, knowing it to have been stolen and with intent to defraud the owner thereof.</p> <p>6. Criminal Law: Evidence: Book Account. A memorandum of items of money paid by the witness is not competent in evidence as a book account.</p>

<p>1. Appeal: Briefs. It is the duty of counsel in briefing a case for this court to comply with the rules, and so assist the court in the ready transaction of its business. If they fail to do so, the court will still correct any manifest error observed in the record, which is of such a nature as to have probably caused a miscarriage of justice.</p> <p>2. Intoxicating Liquors: License: Application: Requisites: Proof. In an application for a liquor license, the petition must state the matters prescribed by tbe statute, and must be signed by tbe requisite number of resident freeholders. If a remonstrance is filed denying the allegations of the petition, the burden of proof is upon the applicant to establish those allegations. It is not required to establish the ownership of real estate for each of the petitioners, as in cases of trial of titles.</p> <p>3. - — : -: Freeholders: Proof. In such ease, when the remonstrants deny that any of the petitioners are freeholders, and refuse to admit the qualifications of those in regard to whom there is in fact no question, the signers may be called as witnesses, and ,if a signer of the petition testifies orally that he is the owner in good faith of certain specified real estate in the village, and in possession thereof, such testimony is prima facie evidence that he is a freeholder.</p> <p>4. -: -: -: -. Resident freeholders, counted on the petition or for the purpose of making a larger number of signers necessary in a village of' less than 60 freeholders, must own real estate in the village in good faith. If a small tract of land is conveyed to several persons for the purpose of qualifying them as freeholders in petitioning for license, or for the purpose of preventing the-granting of license, such persons are not thereby qualified as freeholders, within the meaning of the statute.</p> <p>5. -: -: Burden of Proof: Ordinance. When a remonstance duly filed with the village board specifically alleges that there is no ordinance of the village authorizing the issuing of a license, the burden is upon the applicant to prove the existence of such ordinance, and without such evidence no license can be granted.</p>

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

<p>1. WUls: Estate of Wife: Rights of Husband. In this state the wife cannot lawfully dispose of her real estate by will so as to deprive her husband of the interest given him by chapter 17, Rev. St. 1913.</p> <p>2. -: -: Right of Election. Where a married woman by her will makes a provision for her husband of a less estate than is provided for him by the chapter above mentioned, he may renounce the provisions of the will and ' elect to- take the estate given him by law.</p> <p>3. -: -: Stjeficienct of Election. In making his election, no particular form of words is required, and if it clearly appears from the writing filed by him in the county court that he refuses to take the provisions made for him by the will and elects to take, have and receive the part of the estate which is given him by the laws of the state of Nebraska, this will constitute a sufficient election.</p>

<p>Tax Sale: Redemption: Limitations. Where the evidence on which a tax deed is executed is ’ recorded with it and clearly shows that the deed is void, the owner may maintain an action to quiet his ■title and redeem his land from ,tax sale at any time within ten .years after the recording of the deed.</p>

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

<p>1. Appeal: Conflicting Evidence. A verdict rendered upon conflicting evidence will not be set aside unless it is clearly wrong.</p> <p>2. Trial: Instructions. Tbe instructions complained of, when con- . sidered with those given by the court at defendant’s request, field' to submit all the issues in the case to the jury.</p>

<p>1. Taxation: Void Assessments: Equitable Relief: Tender. Where assessments are wholly void and the owner of taxable property has no means of ascertaining what amount may be lawfully levied, he is not required to make a tender as a condition of obtaining equitable relief.</p> <p>•2. -: -: Injunction. An injunction against the collection of void taxes levied against the owners of land in an irrigation district will not be denied because some.have paid the void assessments.</p>

<p>Appeal from the State Board of Irrigation, Highways and Drainage.</p>

<p>Trial: Instructions. Record examined and found not to contain any prejudicial error,</p>

<p>1. Evidence: Preponderan ce. “The preponderance of evidence is not' determined alone hy the greater number of witnesses who testify in favor of a party.” New Hampshire Savings Bank v. Dillrance,. 63 Neb. 412.</p> <p>2. Master and Servant: Injury to Servant: Sueeiciency oe Evidence. The evidence examined and set out in the opinion held sufficient to sustain the verdict.</p> <p>.3. Trial: Misconduct oe Counsel. The record examined and discussed in the opinion held insufficient to show misconduct on the part of counsel for plaintiff.</p> <p>4. Evidence: Preponderance: Instructions. Instruction No. 12, set out in the opinion, examined and held properly given.'</p> <p>.5. -: Evidence at Former Trial: Admissibility. Where a witness is shown to be absent from the state, his testimony given at a former trial of the same cause between the same parties is admissible if otherwise unobjectionable.</p>

<p>Insurance: -Fraternal Insurance: Suicide Clause. A provision against liability in case of death, by suicide, contained in the application and certificate of membership in a fraternal beneficiary association, though not expressly authorized by its by-laws, is a binding part of the contract of insurance, if not in violation of Ithe articles of organization of the association or of the statute under which it is organized.</p>

<p>1. Executors and Administrators: Accounting: Interlocutory Orders. Orders of the probate court adjusting or correcting accounts of an administrator, made while he is acting as such administrator, are interlocutory and not final until his discharge as administrator and final settlement of his accounts upon such discharge.</p> <p>2. -: -: Appeal: Jurisdiction. Upon appeal to the district court from an order of the county court adjusting or correcting the accounts of an administrator, the district court has jurisdiction of -the matters tried in the county court from which the appeal is taken.</p> <p>3. -: -: -: -. When objection is made in the county court to certain specified items in the accounts of an administrator and trial is had in that court as to those items only, appeal to the district court from the decision thereon will give the district court jurisdiction only of the matters tried and appealed from.</p> <p>4. —:-: -: -: Trial by Court. Upon a former appeal of these parties it was determined by this court that objections to the report of an administrator should, upon appeal to the district court, be tried by the court, and not by a jury.</p> <p>5. County Courts: Jurisdiction: Equity Powers. The county court has exclusive original jurisdiction of the estate of deceased persons. In exercising that jurisdiction it may incidentally determine equitable questions, but the county court has no general equitable jurisdiction.</p> <p>6. Executors and Administrators: Accounting: Objections. Upon appeal from the county court from an order correcting the accounts of an administrator, a pleading styled a “petition in equity,” filed in behalf of the estate, alleging grounds for disallowing items- of credit and for additional debits in the administrator’s report must be treated as objections to his report.</p> <p>7. -: -: Interest. When an administrator in his report to the county court obtains an order allowing him credit for a certain sum of money as paid out by him in behalf of the estate, which sum he has not paid out, but thereafter retains for his own use for several years, lie may properly, in the discretion of the court, be charged with interest on such sum from the time that he obtained possession thereof as his own money and while he so retains it.</p> <p>8. -: -: -. An administrator is not chargeable with interest on money which he holds as administrator subject to the order, of the court, unless he received interest thereon, or the circumstances are such that he might and ought to have received such interest. He cannot.be allowed interest on money paid out by him for the estate while he holds a general balance in his hands.</p> <p>9. -: -: Attorney’s Fees. An administrator is1 not entitled to charge against .the estate attorney’s fees and other expenses incurred by him in the contest with the heirs of the estate as to his alleged misappropriation of the funds of the estate.</p> <p>10. -: - — : Costs. In such a contest, if there has been litigation between the administrator and the heirs of the estate and final judgment determining the liability for costs thereon, the administrator in his final settlement with the estate should be allowed such costs as are adjudged in his favor in such litigation, but not costs adjudged against him therein.</p> <p>11. -: -: Cost oe Bond. An administrator is entitled to credit for the cost of procuring and continuing his bond as administrator furnished by a bonding company under sec. 1500, Rev. St. 1913.</p> <p>12. -: -: Appeal: Disposition oe Cause. When the county count has made a finding and order as to the heirs and the proportion of the estate to which each is entitled, and afterwards there is an appeal to the district court from an order correcting the accounts of the administrator, .the district court, after determining the debits and credits of the administrator, should remand the cause to the county court for settlement of subsequent coses and expenses and for final distribution.</p>

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

<p>1. County Commissioners: Term of Office. Section 55 of the act of 1879 (laws 1879, p. 353), “Concerning counties and county officers,” as amended by chapter 46, laws 1905 (Rev. St. 1913, sec. 980), fixes the terms of county commissioners of all counties at four years.</p> <p>2. Counties: Officers: Term of Office. Chapter 51, laws 1907, which amends a section of the general election law, provides that laws creating county offices shall control as to the election of county officers, and the provisions in regard to the terms of such officers do .not apply when the statute creating the office ¿fixes the term.</p> <p>3. Elections: Injunction: Quauus. Whether injunction is the proper remedy in any case to control the action of the county clerk in arranging the general election ballot, quiere.</p>

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

<p>Vendor and Purchaser: Fraud: Risht to Relief. Plaintiffs, citizens of this country and residents of sister states, were sole heirs of the owner of a farm, in Butler county, who died intestate and without issue. There were living nonresident aliens of the same degree of kinship to the decedent as plaintiffs. Plaintiffs had not been advised as to their legal rights, and supposed that their alien kinsmen were joint heirs with them to the said farm, in the proportions of one-third to them and two-thirds to such aliens. Defendant Palmer, acting for himself and for those who subsequently formed the defendant land company, with full knowledge of the mistaken belief under which plaintiffs were laboring, induced them to sell the land to him for a sum based upon the valuation of a one-third interest'therein. He at the time did not inform plaintiffs of their mistake, but added to their belief that they only owned a one-third interest by representing to them that he intended to purchase the other two-thirds interest from the alien heirs. Held a fraudulent transaction from which plaintiffs are entitled to be relieved, as against the defendant Palmer and all others acting in concert with him in said fraudulent transaction, or who subsequently obtained any title or interest in the land, directly or indirectly, with knowledge of his fraud.</p>

<p>Easements: Prescriptive Title. Where the use of a “way” is permissive, and the access to it is through a gate, which is kept locked and under the control of a third party, there is no such adverse right as may become the foundation of a title obtained by prescription.</p>

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

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

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

<p>1. Eminent Domain: Municipal Corporations: Vacation of Streets: Damages: Right of Action. A city ordinance which contains a provision for the “opening, vacating or altering” of streets, and which provides for the election of freeholders to act as a board of assessment to assess and award damages to property owners injured by the “opening or alteration” of streets, is not in conformity with section 5133, Rev. St. 1913, providing for the “vacation” of streets, and providing a method of assessing damages, therefor, and no action taken thereunder can be pleaded in bar of a property owner’s right to-maintain an action for damages in the courts.</p> <p>2. -: -: -: “Freeholdf.r:” “Householder.” The words “freeholder” and “householder” as used in the statute are not synonymous terms.</p> <p>3. -: -.- -: Compensation. When streets of a city are vacated by competent authority, the city must make adequate' compensation to abutting property owners whose property is injured thereby.</p>

<p>Appeal: Inadequate Damages. When the evidence is conflicting, a judgment will not be reversed solely because the amount recovered is too small, where the jury has been properly instructed on the measure of damages.</p>

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

<p>Licenses: Hunting and Fishing: Statute: Constitutionality. The provisions of section 2695, Rev. St. 1913, imposing license fees upon persons desiring to hunt and fish in this state and requiring such fees to he paid to the state treasurer for the benefit of the state school fund, are not in conflict with section 5, art. VIII of the constitution.</p>

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

<p>1. Insurance: Contract: Limitation of Liability. Section 68 o£ the constitution of the defendant association, of which plaintiff was a member, provides for indemnity upon claims • for total disability resulting from certain specified injuries. Another section provides that all claims for disability not coming within the 'terms of section 68 should be held to be addressed to the systematic benevolence of the order, and should in no case be made the basis of any legal liability on its part. Held, That the contract limiting the liability of the association to the disabilities' described in section 68 is a valid contract; that such an association may limit the class of risks which it will assume, and that the defendant is not bound to pay claims other than those which it specifically agreed to pay by the terms of the certificate and constitution.</p> <p>2. -: Beneficial Association: Benevolence. It is1 not against public policy for the members of such an association to agree with each other that a portion of the funds which they contribute may be applied to the relief of members for whose injuries or disabilities no legal liability exists against the association. The mere fact that the objects of this benevolence are to be selected by a beneficiary board does not alter the situation nor create an obligation on the part of the association to pay all claims for total disability arising from causes not covered by the insurance contract.</p>

<p>1. Criminal Law: Motion for Continuance: Counter Showing:. Since the enactment of section 7889, Rev. St. 1913, it is proper to allow a counter showing to he filed against a motion for continuance.</p> <p>2. -: Appeal: Refusal of Continuance. A judgment will not he reversed by the supreme court on account of the refusal to grant a continuance unless there has been an abuse of a sound legal discretion by the district court.</p> <p>3. Shooting with Intent to Wound: Sufficiency of Evidence: Instruction: Mental Responsibility. Evidence examined, and held to support the verdict, and that, when considered in connection with instruction No. 11, the question of defendant’s mental responsibility was properly submitted to the jury by that instruction.</p>

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

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

<p>1. Larceny: Possession of Stolen Property: Inference. In a prosecution for larceny, the jury, in determining the inference to be drawn from the possession of recently stolen property, should consider whether accused kept and sold it openly, where there is proof of that fact.</p> <p>2. -: -: Instruction. In a prosecution for larceny, an instruction referring directly to defendant’s possession of stolen property, and requiring the jury to consider it carefully, where there is nothing else from which the guilt of defendant could he inferred, should likewise call attention to proof, if.any, that he kept and sold the property openly. •</p>

<p>1. Appeal: Law of the Case. The determination of a question on appeal becomes tbe law of 'the case, and will not ordinarily be reexamined on a subsequent appeal in the same case.</p> <p>2. -: Negligence: Conflicting Evidence. In an action for personal injuries, negligence and contributory negligence, where there is a substantial conflict in the evidence, are questions for the jury, and their findings on those issues will not be set aside on appeal unless clearly wrong.</p> <p>3. Evidence: Objections: Foundation. In an action for personal injuries caused by electricity, an objection to admitting in evidence, on the ground that no foundation had been laid, an electric switch, may be overruled, where counsel for defendant in the opening statement pointed it out as the identical switch by which plaintiff was injured.</p> <p>4. -: Carlisle Table. The Carlisle table of expectancy may be admitted in evidence in the trial of an action for personal inju97 Neb. 55 ries resulting in the permanent impairment of plaintiffs earning capacity, age and good condition of health at the time of the injury being shown.</p> <p>5. Appeal: Ruling on Evidence. A judgment will not be reversed on account of a ruling on evidence, where the record shows that appellant was not prejudiced thereby.</p> <p>6. Trial: Instructions. Where instructions as a whole correctly state the law applicable to the evidence, they will not be condemned as erroneous, though an isolated statement might be open to criticism.</p> <p>7. Damages. A verdict for $6,500 in favor of a healthy young man with a good earning capacity, which was permanently impaired at the age of 21, held not excessive, where the evidence shows that he suffered pain and anguish from an electric burn resulting in a severe shock and in the loss of the thumb and the index finger of his left hand.</p>

<p>limitation of Actions: Domestic Judgments. A domestic judgment is a specialty within the meaning of section 10 of the code (Rev. St. 1913, sec. 7567), and an action thereon is barred by the statute of limitations after five years from the date of the judgment. Snell v. Rue, 72 Neb. 571, overruled.</p>