Volume 98 — Nebraska Reports

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

<p>Appeal: Reversal. “A verdict so clearly wrong as to induce the belief on the part of the" reviewing court that it must have been found through passion, prejudice, mistake, or some means not apparent in the record, will be set aside and a new trial awarded.” Garfield v. Hodges & Baldmn, 90 Neb. 122.</p>

<p>1. Appearance. “An appearance for the purpose of objecting to the jurisdiction of the court of the subject matter of the action, whether by motion or formal pleading, is a waiver of all objections to the jurisdiction of the court over the person of defendant, whether the defendant intended such waiver or not.” Perrine v. Knights Templar’s £ Masons’ Life Indemnity Co., 71 Neb. 273.</p> <p>2. Wills: Construction: Vesting of Bequest. The fifth clause of the will, set out in the opinion, examined, and held, to have vested in defendant, immediately upon the death of the testatrix, an unconditional title to and interest in the bequest therein expressed, and that the only office of the demand specified in the proviso in such clause would be to prevent a forfeiture of such bequest at the end of one year.</p> <p>3. Garnishment: Demand. Where a debtor has funds in the possession or under the control of another under such circumstances that he cannot institute an action therefor without previous demand, such funds, if otherwise liable to be subjected to garnishment, cannot be exempt for want of preliminary action on the part of such debtor. In such case the creditor would have the right to make the demand and reach such fund by garnishment.</p> <p>4. -: Discharge of Garnishee: Sufficiency of Evidence. The evidence examined and partially set out in the opinion, when considered together with the facts and circumstances surrounding the parties, field insufficient to sustain the judgment discharging the garnishees.</p>

<p>Trial: Direction of Yekdict. Where the evidence offered by plaintiff in an action at law is insufficient to sustain the cause of action set out in his petition, it is not error for the court to end the trial by directing a verdict for the defendant.</p>

<p>Mandamus: Control of Discretion. While the writ of mandamus maybe issued to require an inferior tribunal or board to exercise its judgment, or proceed to the discharge of any of its functions, it cannot control its judicial discretion. Rev. St. 1913, sec. 8271.</p>

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

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

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

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

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

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

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

<p>County Commissioners: Term of Office. Chapter 46, Laws 1905, is not invalid. Under it and subsequent acts of the legislature, the term of county, commissioners of Douglas county is four years.</p>

<p>1. Insurance: Fire Policy: Vacancy Clause: Breach. After a partial loss under a fire policy which, renders the building untenantable, the insured is not guilty of a breach of the vacancy clause of the contract where he permits the property to remain unoccupied with the knowledge of the insurer.</p> <p>2. —: —: Construction. It is not within the contemplation of the parties that an insured building shall be occupied by a tenant or otherwise when, as a result of its partial destruction by fire, it becomes unfit for occupancy.</p> <p>3. —: —: Amount Recoverable. Where insured property is totally destroyed as the result of three fires, the measure of recovery for the final loss is the amount written in the contract, where the insured has complied in good faith with the terms of the policy.</p> <p>4. —: —: Notice:. Sufficiency of Evidence. The evidence examined and held to sustain the verdict of the jury.</p>

<p>1. Criminal Law: Appeal: Findings: Evidence. Wliere a jury has decided a question of fact properly submitted, and the trial judge has overruled a motion for a new trial, if the record discloses competent evidence on which the finding is based, such finding should not be disturbed by the supreme court, unless upon the whole record it is clearly wrong.</p> <p>2. Assault and Battery: Sufficiency of Evidence. The evidence examined, and held sufficient to sustain the verdict.</p>

<p>1. Appeal: Withdrawal of Issue of Negligence. Under all the circumstances of this case, the action of the trial court in withdrawing the question of the child’s negligence from the jury was not prejudicial.</p> <p>2. Street Railways: Injuries to Infant: Sufficiency of Evidence. Evidence reexamined, its substance stated in this opinion and in our former opinion in 96 Neb. 447, held sufficient to sustain the verdict and judgment.</p>

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

<p>Specific performance is not generally a legal right, but is directed to the sound legal discretion of the court, and it will not be granted where its enforcement would be unjust.</p>

<p>1. Sales: Contract: Negotiations. A valid contract of sale may be made by correspondence, but courts will not construe as a binding agreement letters which the parties intended only as a preliminary negotiation.</p> <p>2. —: Offer. The mere statement of the price at which property is held cannot be understood as an offer to sell.</p>

<p>Carriers: Shipment: Loss by Fire: Liability. When a railroad company has transported a car of freight to the point designated by the shipper, has notified the consignee of the arrival of the ear, and given consignee permission to unload the same, and consignee has broken the seal thereon, and locked the door with its own lock, and retained the key, and later a fire occurs in the car and the goods therein are thereby destroyed, held that the railroad company is not liable, and it is error for the court to submit the question of liability, negligence being neither alleged nor shown, to the jury.</p>

<p>1. Insurance: Contract: Laws and Ordinances. When writing insurance on a building situated within the fire limits of a city, the insurance company is bound by the laws and ordinances of the city, and such laws and ordinances should be considered as a part of the policy.</p> <p>2. —: —: Amount of Recovery: Valued Policy Law: Constitutionality. When an insured building is' injured by fire to such an extent as to destroy its use as a building and require it to be demolished or removed, the insured will be entitled to recover as for a total loss. Such construction of the valued policy law does not deprive the insurance company of its property without due process of law.</p> <p>3. —: —: Void Conditions. In such case any condition in the policy providing for the payment of a less sum than the amount of the insurance as written therein is void under the provisions of the valued policy law. Rev. St. 1913, sec. 3210.</p> <p>4. New Trial: Motion: Time fob Making. On the trial the jury made special findings of fact without rendering a general verdict. The court discharged the jury, with consent of the parties, and took the case under advisement. The plaintiff excepted to the special findings, and immediately filed a motion to set them aside and for a new trial. After considering the matters of law for some days, the court rendered a judgment in substance as requested by the defendant. Plaintiff, within three days, filed a motion for a new trial. Held, that such motion was in time and was a sufficient compliance with the rule.</p>

<p>1. Creditors’ Suit. There must he a valid and enforceable judgment as a basis for a creditor’s suit to set aside an alleged fraudulent transfer of real estace.</p> <p>2. Judgment: Revivor. A judgment of the federal court, when dormant, can only be revived in the court where it was rendered.</p> <p>3. Limitation of Actions: Domestic Judgment. No action can be maintained on a domestic judgment which is dormant and has not -been properly revived, unless commenced within five years after the judgment was rendered.</p>

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

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

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

<p>1. Briefs in this court should he prepared in accordance with rule 12 (94 Neh. XI), otherwise the court may refuse to consider them.</p> <p>2. Brokers: Contract: Validity. When an oral contract is made with an agent for the sale of real estate upon commission, and after-wards, in order to satisfy the requirements of section 2628, Rev. St. 1913, the contract is reduced to writing before suit is brought, such written contract furnishes the legal evidence necessary that the contract may be enforced.</p> <p>3. —: —: Parol Evidence. Where it is claimed, that such contract was signed by the defendant without knowledge of its contents, evidence of the oral contract previously made is admissible as tending to show the consideration for the writing and the probability that the signer knew its contents.</p>

<p>1. Instructions set forth in the opinion, when considered in connection with the testimony, held respectively properly given or refused.</p> <p>2. Carriers: Injury to Passenger: Damages: Review. Where, in answering a question as to her loss of earnings, the plaintiff probably misunderstood its purport and may have included some of the profits from her investment in the sum she stated, while an objection and a motion to strike the answer should have been sustained, the judgment will not be reversed upon that ground alone; the verdict, as reduced by the district court, not being in excess of what would be a fair compensation for the injuries the plaintiff sustained, and the defendant not having attempted to elicit the actual facts by cross-examination.</p>

<p>1. Easements: Streets: Adverse Possession. An easement in a city-street could be acquired by open, notorious and uninterrupted adverse possession for ten years prior to the enactment of the statute of 1899 (Laws 1899, ch. 79).</p> <p>2. Courts: Opinions: Overruling. “Before overruling a former decision deliberately made, the court should be convinced, not merely that the case was wrongly decided, but that less injury will result from overruling than from following it.” McEvoy v. City of Sault Ste. Marie, 136 Mich. 172.</p>

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

<p>1. Statutes: Definitions: Legislative Power. The legislature may define words used in a statute so that their meaning is extended.</p> <p>2. —: —: Construction. A legislative definition or an interpretative provision in a statute designed to extend a particular word so as to include more than its usual meaning should be construed reasonably and in accordance with the intent and purpose of the whole act.</p> <p>3. Food: Pure Food Law: Definitions: Police Power. It is within the police power of the state to provide that certain food products sold in package form shall be deemed “misbranded” if there be contained in the package any gifts, premiums, or prizes.</p> <p>4. —: —: Validity: Federal Laws. The fact that^congress has declared when a package of food shall be deemed misbranded does not prevent a state from making other requirements not inconsistent with the ,act of congress respecting the sale of food products in package form.</p>

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

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

<p>Appeal from the State Bailway Commission.</p>

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

<p>1. Sales: Contract: Description oe Property. In a contract of conditional sale duly filed of record, a description which will enable a third person; aided by inquiries suggested by the instrument itself, to identify the property is sufficient.</p> <p>2. —: —: Filing: Notice. The public filing of a contract of conditional sale, in the county wherein the purchaser resides, protects the seller, though the former removes the property to another county.</p>

<p>1. Automobile Accident: Joint Liability. While two traveling salesmen are engaged in the joint enterprise of transporting themselves by automobile over the territory canvassed by both for different merchants, one of the salesmen owning and operating the automobile and tbe other paying sums about equal to tbe cost of gasoline and oil consumed, tbe latter, if possessing joint control over tbe automobile, may be liable for tbe negligence of tbe other in operating it; both being occupants at tbe time.</p> <p>2. —: Common Enterprise: Question for Jury. Whether a person riding in tbe automobile of another is engaged in a common enterprise with tbe latter is a question for tbe jury, where it is an issuable fact in tbe case.</p>

<p>1. False Pretenses: Indictment: Sufficiency. An indictment for obtaining money by false pretenses is not fatally defective merely because the ownership of the money is not alleged in direct terms, if that fact is clearly shown by the indictment as a whole.</p> <p>2. —: Pleading and Proof. Under an indictment charging that accused obtained money by falsely pretending that he was the owner of specifically described property, proof that he did not then own such property is essential to a conviction.</p>

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

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

<p>1.. Indians: Citizenship. By the provisions of the act of congress approved February 8, 1887 (24 II. S. St at Large, ch. 119, pp. 388, 390), all Indians born within the territorial limits of the United States, to whom allotments of land in severalty have been made under the provisions of said act, or other law or treaty, and all Indians, bom as aforesaid, who have voluntarily taken up their residence in the United States separate and apart from any tribe of Indians therein, and adopted the habits of civilized life, are made citizens of the United States, and such Indians residing in this state are citizens thereof.</p> <p>2. —: Offenses: Jurisdiction. As to such Indians, congress, hy an act approved March 3, 1885 (23 U. S. St. at Large, ch. 341, p. 385), has expressly reserved to the federal courts jurisdiction over certain offenses specially enumerated in section 9 of such act, committed against the person or property of another Indian or other person within the boundaries of any state and within the limits of any Indian reservation. Held, that all crimes and misdemeanors not so expressly reserved, or not subsequently reserved by act of congress, are within the jurisdiction of the state courts of the state in which such allottee Indians may reside, as provided in the acts of congress approved March 3, 1863 (12 U. S. St. at Large, ch. 119, p. 819), and February 8, 1887, supra.</p> <p>3. —: —: —. The crime of assault by defendant, an allottee Indian, upon another allottee Indian in this state, and within the limits of an Indian reservation, not being one reserved by any act of congress to the jurisdiction of the federal courts, is within the jurisdiction of the courts of this state.</p>

<p>Appeal from tbe district court for Douglas county: G-eorqe A. Day, Judge.</p>

<p>Appeal: Courts: Presumption. It is the duty of the trial courts to cause a defendant who appears without counsel to be informed of his rights. In the absence of evidence to the contrary, this court will presume that the trial court has performed that duty.</p>

<p>Sheriffs: Fees: Reports. A sheriff is required to report all fees earned by him by virtue of his office, which are not especially excepted from his report by statute. His salary is in lieu of fees.</p>

<p>1. Judges: Acting Judge: Failure to Give Bond: Plea in Abatement. When a county judge is disqualified to act in a case pending before him, and county commissioners appoint a person to act as judge in such, case, and by virtue of such appointment he holds a preliminary examination of a person accused of crime, objection to his qualification to so act on the ground that he failed to give the bond required by statute, made for the first time by plea in abatement in the district court, is properly overruled. As against such objection, such acting county judge must be regarded as an officer de facto.</p> <p>'2. Highways: Establishment: Obstruction: Proof. A public highway may be established by dedication and use, or by adverse user for ten years. But when a defendant is prosecuted for obstruction of a highway by encroaching upon the alleged limits of the right of way, but not upon the line of travel, it must be proved with some degree of certainty that the encroachment complained of is within the limits of the land dedicated, or adversely used.</p> <p>3. —: Obstruction: Prosecution. If the county commissioners by regular proceedings establish a public highway with definite location and boundaries, one who wilfully obstructs such road may be prosecuted under the statute for nuisance in obstructing a public highway.</p> <p>4. —: Location: Criminal Proceedings. It is not the policy of our law to determine the locality of public roads, when indefinitely located, by criminal proceedings.</p> <p>5. —: Obstruction: Prosecution: Location: Proof. In a prosecution for obstructing a highway by the adjoining landowner by placing a fence along the side of his land, but which it is alleged is so placed as to encroach upon the highway, the location and boundaries of the highway as extending to and including the locality of such fence must be proved beyond a reasonable doubt.</p> <p>6. —: —: —: —: Sufficiency of Evidence. In such case, if the evidence of the locality and boundaries of the highway is so indefinite and uncertain that it cannot be determined beyond a reasonable doubt that such fence is within the limits of such highway, a conviction cannot be sustained.</p> <p>7. —: —: Sufficiency of Evidence. The judgment in this case is clearly wrong because the evidence fails to,establish the locality and limits of the alleged highway with any certainty, and does not prove that the fence complained of is within the limits of a pubic highway.</p>

<p>Deeds: General Warranty: Breach. The covenant in a deed of general warranty of title, and for quiet enjoyment, made by one having obtained only a final receiver’s receipt for the premises conveyed, is broken when the government reasserts title and cancels the final receiver’s receipt, at which time a right of action accrues to the grantee.</p>

<p>Appeal from the State Railway Commission.</p>

<p>Highways: Dedication. Where a landowner has placed fences on each side of a traveled way across his land, leaving an intervening space of the width of a public highway, and the phblic has entered upon and used the intervening space as a highway for nearly ten years with the owner’s acquiescence, dedication may be inferred, though such use has not continued for the entire statutory period of ten years.</p>

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

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

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

<p>1. Appeal: New Trial: Discretion. A motion, for a new trial is addressed to the sound discretion of the court, and a decision of the district court in setting aside a verdict of the jury and granting a new trial will not be reversed unless it clearly appears that' there has been an abuse of discretion.</p> <p>2. —: Exclusion of 'Evidence. In an action for personal injuries,' where the injuries are not denied, or the proof thereof is clear and uncontradicted, the exclusion of evidence relating to the extent of the injuries and going only to the measure of recovery is not reversible error, where the jury finds plaintiff is not entitled to recover anything for the injuries.</p>

<p>1. Telegraphs: Delated Message: Damages. For a breach of its contract to promptly transmit and deliver a message over its lines, a telegraph company is liable for such damages as may reasonably be supposed to have been in the contemplation of both parties at the time when the contract was made.</p> <p>2. —: —: —: Proof. Such damages being dependent upon the knowledge of the parties, proof of such knowledge, where the message is in cipher, may be made by evidence of facts and circumstances additional to such as are disclosed by the message itself.</p> <p>3. —: —: —: Sufficienct of Evidence. Substance of the evidence set out in the opinion, and held sufficient to sustain the verdict.</p>

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

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

<p>Bills and Notes: Negotiability. A promissory note is not rendered nonnegotiable by tbe insertion of tbe following provision: “A discount of 6 per cent, will be allowed, if paid in full witbin fifteen days from date.”</p>

<p>1. Bills and Notes: Failure of Consideration: Sale of Stock. Where a promissory note is given for stock in a corporation then being organized by the payee, in reliance upon the promise of the payee to place in the treasury of the corporation it' is organizing a certain sum of money and a bond of indemnity guaranteeing the legality of the patents under which the corporation being organized is to operate, and the payee fails to either deposit the said sum of money or furnish the said bond of indemnity, and the evidence shows that such failure on the part of the payee renders the stock in said corporation valueless, the consideration for the note will be held to have totally failed.</p> <p>2. —: —: —. And where it further appears that, on account of such failure, the maker of the note has refused to take the stock, a judgment in his favor in an action on the note will, in the absence of other reasons to the contrary, be affirmed.</p> <p>3. Evidence examined and set out in the opinion held to sustain the verdict and judgment.</p>

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

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

<p>Rehearing of case reported in 95 Neb. 184.</p>

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

<p>1. Wills: Bequest: Lien: Jurisdiction. Tbe district court has original jurisdiction of an action to have a specific bequest of money declared a lien upon, and enforced against, real estate in the hands of the residuary legatee, though the construction of the will is involved.</p> <p>2. —: Construction: Bequest: Lien. The intention of the testator to mate a bequest a charge upon real estate may be inferred, where the bequest is followed by the gift of the residue of real and personal property in one mass.</p> <p>3. Limitation of Actions: Bequest: Suit to Enforce Lien. An action to enforce the lien of a specific money bequest upon real estate in the hands of the residuary legatee is not barred until ten years from the time payment becomes due.</p>

<p>Partnership: Dissolution. Where the defendants held possession of a farm under a farm contract and also of certain live stock and farming implements, and the evidence shows a breach of the contract because the live stock is neglected and mistreated, and farm implements unnecessarily injured, and a farm building destroyed, there is a sufficient reason for the dissolution of the partnership by the judgment of a court.</p>

<p>Execution: Application oe Surplus. Plaintiff had foreclosed a mortgage upon a tract of real estate belonging to defendant, and was also the owner of a judgment rendered in the same court. An execution was issued on the judgment and levied upon the real estate. The premises were sold to the plaintiff at the execution sale; no deduction of liens being made. There was a surplus of the proceeds of the sale after paying the execution debt. An application was made by plaintiff to apply the surplus upon the foreclosure decree pro tanto, upon which issues were made up and a hearing had. Held, that the district court properly decided that in equity the creditor was entitled to have the surplus applied upon the foreclosure decree.</p>

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

<p>Conditional Sale: Right to Recover Price:' Destruction bt Fire. There may he a recovery of the purchase price of personal property which has been sold and delivered on condition that the title shall not pass until full payment is made, although, without the fault of the purchaser, the property is destroyed hy lire, when the vendee’s promise to pay is absolute, and the contract gives him the right to extinguish the vendor’s title hy payment of the stipulated price.</p>

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

<p>1. Appeal: Finding: Existence of Partnership. In an action for a. partnership accounting, where the existence of the partnership is denied hy one of the alleged- partners, the finding of the district court that there was a partnership, if supported by the evidence, will not be disturbed.</p> <p>2. —: Accounting: Modification of Decree. The findings of the district court in making the accounting, in so far as they appear to be correct, will not be disturbed; but, where it appears that one of the partners has not been given a credit for certain sums of money paid by him for the benefit of his deceased partner, such credit will be given, and the judgment of the district court, as thus modified, should be affirmed.</p>

<p>Mortgage Foreclosure: Defense: Defect of Title. In an action to foreclose a purchase money mortgage, when it clearly appears that the mortgagor has obtained a good title to the ’mortgaged premises by reason of the fact that he and his grantors have been in the ■«pen, notorious, exclusive and uninterrupted possession of the premises for more than 22 years, claiming adverse to all the world, a defect in the paper title of his remote grantor is no defense to the foreclosure proceedings.</p>

<p>1. Taxation: Raise of Valuation. A county board of equalization cannot raise the assessed valuation of the real estate of an individual taxpayer without a complaint and without notice to the person affected thereby.</p> <p>2. —: Illegal Levy: Injunction. So much of the taxes as are levied upon the valuation above that fixed by the county assessor is void, and its collection may be enjoined.</p>

<p>Tlie opinion in Brovm v. Douglas County, ante, p. 299, is followed and approved.</p>

<p>Evidence examined, and found sufficient to sustain tlie judgment.</p>

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

<p>Appeal in Equity: Affirmance. In an action in equity, where the evidence is conflicting, the findings of the trial court, based upon the testimony of witnesses who appeared in person before it, are entitled to consideration, and may, in a doubtful case, determine whether the plaintiff has sustained the burden of proof necessary to entitle him to the relief prayed:</p>

<p>1. Appeal: Harmless Error. One cannot complain of the giving or refusing of instructions upon an issue of settlement, where the finding of the jury that no settlement took place is in his favor.</p> <p>2. -: Issues. Where a general denial has been filed in a justice court to an action for wages, an answer in the district court on .appeal alleging facts tending to contradict the allegations of the petition that there is a balance due does not change the issues tried below.</p>

<p>1. Partnership: Judgment: Assignment by Surviving Partner. On ,tlie dissolution of a partnership by the death of one of its members, the control of the assets vests in the surviving partner. He has power to assign a judgment" belonging to the partnership, and the • fact that the assignment is not executed in the name of the partnership, but only in the name of the individual partner, is not material.</p> <p>2. Executors and Administrators: Payment oe Claim: Sufficiency of Evidence. Evidence set forth in the opinion held sufficient to sustain the defense of payment.</p>

<p>1. Appeal: Conflicting Evidence. A verdict on substantially conflicting proof will not be set aside, where it is supported by sufficient competent evidence.</p> <p>2. —: Exclusion of Evidence: Offer of Proof. “The ruling of the trial court in sustaining an objection to a question put to one’s own witness cannot be reviewed where the complaining party has failed to make an offer of the testimony indicating what he expects to prove by the witness, in response to.the question propounded and overruled.” Barr v. City of Omaha, 42 Neb. 341.</p>

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

<p>Courts: Jurisdiction: Injuries to Real Property. As a general rule, an action for injuries to real property situated in another state cannot be maintained in this state.</p>

<p>Courts: Jurisdiction: Injuries to Real- Property. As a general rule, an action for injuries to real property situated in another state cannot be maintained in this state. Kroll v. Chicago, B. t& Q. R. Co., ante, p. 322, followed.</p>

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

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

<p>1. Partnership: Existence of Partnership: Proof. In an action alleging a partnership and for a dissolution and accounting, the burden of proof is upon the plaintiff. If the existence of a partnership is denied by defendant, and there is no proof that any certificate of partnership has been filed, nor any account or inventory taken of the assets or liabilities of the business, and the defendant has paid all expenses of the business, and the plaintiff was connected with the business for only a few weeks, such circumstances tend to support the positive testimony of defendant that there was no partnership agreement between them.</p> <p>2. —: —: Sufficiency of Evidence. Under the circumstances shown by the evidence, it is considered that the unsupported testimony of the plaintiff is not sufficient to establish an oral agreement , of partnership.</p>

<p>1. Mandamus: Allowance of Remedy. Although the common law writ of prohibition has been abolished in this state, the duty is still imposed upon this court to prevent violation of law by inferior tribunals, and, when there is no adequate remedy in the ordinary course of the law, mandamus is the appropriate remedy.</p> <p>2. Damages: Personal Injuries: Examination of Person. In an action for damages caused by injuries to the person, the trial courts have power to order an expert examination of the person of the party injured, when the circumstances of the trial make it necessary to do so and no substantial harm can result therefrom.</p> <p>3. —: —: —. Such examination will not be ordered unless it clearly appears that a condition exists that can be definitely determined by such examination and cannot be satisfactorily determined without.</p>

<p>1. Appeal: Final Order. An order vacating a judgment upon petition filed after the term at which the judgment was rendered, under subdivisions 4, 5, 6, 7, 8, 9, sec. 602, of the Code (Rev. St. 1913, sec. 8207), can only be made upon notice to the parties by service of summons or upon voluntary appearance and upon due proof. Such order is a final order and is appealable. Johnson v. Parrotte, 34 Neb. 26, followed. Trimble & Blackman v. Corey & Son, 86 Neb. 5, overruled.</p> <p>2. Judgment: Vacation: Petition: Allegation of Defense.. A petition to vacate a judgment on the ground of fraud and perjury of the successful party in obtaining the judgment should allege that there is a meritorious defense of the action in which the judgment was obtained; but it is sufficient if there is a meritorious defense to a substantial part of the judgment.</p> <p>3. Tender: Action foe Damages. When there is a definite sum justly due, notwithstanding the alleged defense, there must be a tender of the amount so due; but this rule cannot be applied in an action for damages in which there is no basis for ascertaining any definite amount that would be due if the defense pleaded is established.</p> <p>4. Appeal: Vacation of Judgment. The trial court is given a large discretion to vacate a former judgment for fraud or perjury. This court cannot reverse such judgment unless it clearly appears that there has been an abuse of discretion by the trial court.</p> <p>5. Judgment: Vacation: Sufficiency of Evidence. The evidence is found sufficient to justify the trial court in exercising its discretion to vacate the judgment complained of.</p>

<p>Banks and Banking: Collusive Loan by Cashibk: Liability. Where the maker of a promissory note and a bank cashier are engaged in a joint enterprise, in which each has a contingent beneficial interest, and the cashier, without the knowledge of any other officer of the bank, loans money of the bank to be used in furtherance of the enterprise, taking the note of his associate, payable to the bank, for the amount loaned, the maker of the note will be held liable therefor, notwithstanding the promise of the cashier to hold him harmless.</p>

<p>1. Master and Servant: Death of Servant: Negligence: Proof. In an action to recover for the death of a servant, alleged to have been caused by the negligence of the master, the plaintiff is required to prove at least one or more of the alleged negligent acts set forth in his petition.</p> <p>2. Evidence examined, its substance stated in the opinion, and held to he insufficient to sustain a judgment for the plaintiff.</p>

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

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

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

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

<p>1. Courts: Jurisdiction: Power of Legislature. Section 9, art. VI of the Constitution, confers on the district courts “both chancery and common law jurisdiction, and such other jurisdiction as . the legislature may provide.” The equitable jurisdiction of the district courts is, therefore, beyond the power of the legislature to limit or control. While it may grant such other jurisdiction as it may deem proper, it cannot limit or take from such courts their broad and general jurisdiction which the constitution has conferred upon them.</p> <p>2. Wills: Oral Contract: Specific Performance. Where a party orally contracts to devise and bequeath to another certain real estate and money in consideration that the beneficiary shall assume a peculiar and domestic relation to the promisor, and render him services of a character to make it practically impossible to estimate their value by any pecuniary standard, and the beneficiary, in reliance upon the oral promise, in good faith assumes the relation and fully performs her part of the agreement, she will be entitled, in the event of a breach of the contract by the promisor, to a specific performance of the same as made.</p> <p>3. Specific Performance: Jurisdiction: Contract to Devise. And when such contract and relation are established under a single and indivisible contract, and the promisor dies without having complied with the terms of his promise, the county court is without, and the district court has, jurisdiction of an action for the specific performance of such contract.</p> <p>4. —: —: —. Where a court of equity can afford complete and adequate relief and by one litigation and decree adjudicate the rights of the parties, it may take jurisdiction over the entire subject matter and order a specific performance of the entire contract.</p> <p>5. — : —: —: Certification to County Court. And in such case, where it appears that the estate of the decedent promisor is solvent, it may certify its finding to the county court as to the amount which it has found' due from the estate and direct that the same be allowed as an established claim against such estate.</p> <p>6. Wills: Contract to Devise: Sufficiency of Evidence. The evidence examined, and set out in the opinion, held sufficient to establish an indivisible contract on the part of defendants’ decedent, for a single consideration on the part of plaintiff, consisting of unusual personal services performed by her for said decedent.</p>

<p>1. Sales: Custom: Presumption. A principal who deals in a market must he presumed to deal according to the custom of that market, thus making that custom a part of his contract.</p> <p>2. —: —: —: Rebuttal. This presumption may generally he rehutted, hut not where the person with whom he deals, without knowing the other to he ignorant of the usage, has performed the contract in accordance therewith.</p> <p>3. Appeal: Harmless Error: Admission of Incompetent Evidence. When under the competent evidence the defendant is entitled to a verdict in his favor, any error of the court in admitting incom- . petent evidence is immaterial. .</p> <p>4. Evidence: Sufficiency. Under the evidence in this case the court shpuld have instructed the jury to find a verdict in favor of defendant, and therefore a judgment in defendant’s favor will not he reversed upon appeal.</p>

<p>1. Bills and. Notes: General Denial: Admissibility of Evidence: Condition. In an action upon a promissory note, if the defendant alleges, and produces evidence tending to prove, that the note was given upon a certain specified condition, evidence that the condition related to another item, and not to the note in suit, is competent under a general denial.</p> <p>2. —: Condition: Instruction. In such case an instruction that the defendant must prove by a preponderance of the evidence that the note in suit was given upon the specified condition properly submits that question.</p> <p>3. Appeal: Law of the Case. The decision of this court of a question of law becomes the law of the case, and will not ordinarily be changed upon a second appeal. The rule also applies to questions of fact, if the evidence is substantially the same on the second trial.</p> <p>4. Trial: Refusal of Instructions. The judgment of the trial court will not be reversed for refusing to give instructions which detail at length transactions between the parties and contain matters that might mislead the jury, or if they do not contain matters necessary to a proper understanding of the issues involved and not substantially included in the instructions given.</p>

<p>1. Bastardy: Appeal: Objection. In a bastardy proceeding, an objection which, is so general in terms that the court’s attention is not drawn to the point sought to be raised will be disregarded when urged upon appeal.</p> <p>2. —: —: Conflicting Evidence. In a bastardy proceeding, only a preponderance of the evidence is necessary to a conviction, and a verdict rendered on conflicting evidence will be sustained unless it is clearly wrong.</p> <p>3. —: —: Harmless Error. An improper question ashed in cross-examination of defendant in a bastardy proceeding, to which an objection is sustained, is not ground for reversal, unless it appears that prejudice resulted to defendant therefrom.</p>

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

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

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

<p>1. Appeal: Personal Injuries: Instructions. Where the questions of the negligence of the defendant and the contributory negligence of the plaintiff in a personal injury suit are submitted to a jury under proper instructions, the verdict will not be set aside unless clearly wrong.</p> <p>2. Master and Servant: Injury to Servant: Questions for Jury. Questions as to the nature and extent of the injury, the disability resulting to plaintiff from the accident, and the amount of the recovery, are ordinarily questions for the determination of the jury.</p> <p>3. Excessive Damages. The evidence set out in the opinion examined, and field that a judgment for $7,500 based thereon is excessive.</p>

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

<p>1. Justice of the Peace: Change of Venue. In a civil action before a justice of the peace, the filing of an affidavit by defendant for a change of venue for bias of the justice does not of itself deprive the court of jurisdiction, if there is no other justice of the peace in the county to whom the case can be transmitted.</p> <p>2. -: Refusal of Change of Venue: Remedy. In such cáse, the defendant’s remedy is not error to the district court, but is by appeal.</p>

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

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

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

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

<p>1. Jury: Right to Juey Trial: Action on Insurance Policy. Where, in an action by a mortgagee against a fire insurance company based upon a mortgage clause in the policy, the insurer pleads fraud on the part of the mortgagor in procuring the insurance, but offers to pay the mortgagee the amount due under the mortgage clause, which is sufficient to satisfy the mortgage debt, upon condition that it be subrogated to the mortgage, and where to a cross-petition filed by the mortgagor, who seeks to enforce the policy, the insurer pleads that the policy is invalid for the same reason, the question whether the policy is valid' should be first determined, and upon that issue it is error to refuse the mortgagor a jury trial.</p> <p>2. Insurance: Fraud: Subrogation. Where in such a ease the defense of fraud in procuring the insurance is established, and the insurer has paid the full amount of the mortgage to the mortgagee, it may be subrogated to the rights of the mortgagee in the mortgage; otherwise the insurer is not entitled to subrogation.</p> <p>3. —: Action on Policy: Attorney’s Fees. If in such case the insured recover upon the policy, he will be entitled to a reasonable attorney’s fee to be taxed as costs; but if the defense of fraud is established, and the recovery is by the mortgagee alone upon the independent contract in the mortgage clause, and the evidence shows that no attorneys were employed by the mortgagee, and that it has incurred no liability in that respect, it is not erroneous to refuse to allow the mortgagee attorney’s fees.</p>

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

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

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

<p>1. Appeal: Conflicting Evidence. A finding of the jury upon conflicting testimony will not be set aside, if there is competent evidence to support it, unless clearly wrong.</p> <p>2. —: Exclusion of Evidence. Rulings of the trial court excluding proof of collateral facts as too remote in point of time will not be disturbed on appeal, where the record does not show an abuse of discretion.</p> <p>3. Evidence: Expert Evidence: Ultimate Facts. An objection to a question calling for the opinion of an expert witness on the ultimate fact to be determined by the jury should be sustained.</p> <p>4. —: Value of Personalty. In an action to recover damages for the loss of personal property destroyed by fire, the owner may testify to its value.</p> <p>5. Appeal: Amendment to Petition. During the trial, permission to amend the petition by praying for damages in excess of the sum originally claimed held not reversible error.</p>

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

<p>1. Vendor and Purchaser: Breach op Contract: Damages. “In an action for a breach of contract for the sale of real estate, a vendor may recover of the vendee the damages fairly within the contemplation of the parties at the time they made their contract.” Roper v. Milbourn, 93 Neb. 809.</p> <p>2. Damages: Loss of Profits. “Profits which are in the contemplation of the parties and certain of ascertainment may !be recovered.” Roper v. Milbourn, 93 Neb. 809.</p>

<p>Highways: Roads on County Lines: Damages: Liability of Counties. Where a public road is established and opened upon the line between two counties, part of such road having been established by each county, it is the duty of each to use reasonable diligence to keep such road in a reasonably safe condition for the use of the traveling public, and, for a failure to perforin this duty, such counties are jointly and severally liable.</p>

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

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

<p>Bastardy: Excessive Judgment. In a bastardy proceeding against a young man, 19 years of age, who is without other resources than his wages of $13 a week, and his dinners, as usher in a store, a judgment for $3,205, payable in monthly instalments of $15 a month, is excessive.</p>

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

<p>Personal Injuries: Revivor: Measure oe Damages. Former opinion (95 Neh. 175) adhered to.</p>

<p>1. Specific Performance: Parol Agreement to Devise. A parol agreement to leave one’s property to adopted children in consideration that they would, before and after becoming of age, assist in the work upon the farm of the promisor and in the family affairs generally, may be enforced if fully performed for many years in good faith by the adopted children.</p> <p>2. —: —: Homestead: Statute oe Frauds. In such case the fact that the promisor, at the time of making such promise, was the owner of a homestead, which was the principal part of his property, will not render such promise unenforceable, as within the statute of frauds.</p> <p>3. —: —. In such case the fact that the promisor had married the mother of. his adopted children before such promise was made, and, after they had all lived together as one family for more than twenty years, had obtained a divorce from her and had been required to pay her a large amount as permanent alimony, will not prevent the enforcement of the contract with his adopted children after the death of the promisor.</p> <p>4. Evidence found to be sufficient to prove the contract alleged.</p> <p>5. Witnesses: Comfetency. While the widow of a deceased person is not a competent witness to conversations and transactions between herself and the deceased, she is competent to testify to transactions and agreements between the deceased and his adopted children, in which she took no part.</p> <p>6. Vendor and Purchaser: Innocent Purchasers: Sufficiency of Evidence. Defendants contend that, under contract with the deceased, they gave a valuable consideration for the property devised to them, and without notice of any claim of plaintiffs. But the evidence shows that defendants had knowledge of sufficient facts to put them upon inquiry as to the rights of plaintiffs, and cannot claim as innocent purchasers of property without notice.</p>

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

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

<p>1. Trial: Submission of Single Issue. If, upon trial before a jury, it appears upon all of tbe evidence that there is but one question of fact upon which there is any substantial conflict in the evidence, the court may submit such question of fact to the jury, and upon their' verdict thereon should render such judgment as the law requires.</p> <p>2. Sales: Action fob Peice: Counterclaim: Finding: Judgment. In an action to recover a balance of the purchase price of property with a counterclaim for money paid upon the contract on the ground that the property was worthless and that the contract was obtained by fraudulent representations, a finding upon substantially conflicting evidence that the property was as represented, will support a judgment disallowing the alleged counterclaim.</p> <p>3. Trial: Sufficiency of Evidence. Upon the evidence indicated in the opinion, the verdict of the jury is sufficiently supported, and the judgment thereon is not erroneous.</p>

<p>1. Appeal: Briefs: Review. A brief not in compliance with, the rules will, upon motion, be stricken from the files, but when a case is submitted upon briefs without objection, if appellant has failed to assist the court with a brief in compliance with the rules, we will still reverse the judgment,'if, upon such examination of the record as the time at our disposal will permit, a plain error prejudicial to appellant is found; otherwise, the judgment will be affirmed.</p> <p>2. Bills and Notes: Renewal: Guaranty: Consideration. The surrender of securities and extension of time of payment is sufficient consideration for a renewal note, and for guaranty thereof by a third party.</p> <p>3. Appeal: Harmless Error: Submission of Special Issue. The submission to the jury, for the information of the court, of a special question of fact, which under the instructions will not affect their general verdict, is not error requiring a reversal.</p> <p>4. —: Sufficiency of Evidence. The evidence indicated in the opinion is found sufficient to support the verdict.</p>

<p>1. Executors and Administrators: Claims: Sufficiency of Evidence. The findings of the trial court as to the amount of money advanced by defendant to his father and as to the rental value of the land occupied by defendant are approved.</p> <p>2. —: Loans:'Interest. H. advanced money to his father and took possession of land of his father’s, upon agreement that at • some future time they would adjust the matter, allowing for interest and for the use of the land, with no agreement to pay interest or rentals in the meantime. Held, that a decree adjusting the accounts should not allow compound interest, nor interest on the rentals.</p>

<p>Deeds: Breach: Reversion. A subsidiary corporation of a railroad company was tbe owner of land suitable for an elevator site adjacent to tbe tracks of the railroad company. The land was conveyed to a grain company without other consideration than a written contract, wherein it was provided that the grain company should build and operate a grain elevator thereon, the railroad company to furnish a “free in-switch” thereto, and in case of the destruction of the elevator by fire, or otherwise, the grain company should rebuild within a reasonable time, and on failure ’ so to do title should revert to the grantor. The elevator was destroyed by fire April 3, 1910. Prior to July 27, 1911, the grain company had taken no steps toward rebuilding, nor did it then show an unqualified intention to rebuild. Held, that the title to the land reverted to the grantor.</p>

<p>Carriers: Bills of Lading: Drafts: Payment: Right to Property. Bills of lading are symbols of property, and when properly indorsed and delivered to a bank with drafts for the purchase price of merchandise attached, and the bank pays the amount of the drafts to the drawer, the bank is entitled to the possession of the merchandise until the drafts are paid in full.</p>

<p>1. Eminent Domain: Ascertainment of Damages: View of Premises. Upon a trial to determine the compensation to he awarded a landowner, where a railroad company exercises the right of eminent domain in crossing his farm, it is proper for the trial court to permit the jury to view the preinises, and to take into account the result of their observations, and make it, in connection with the other evidence, the basis of their verdict.</p> <p>2. —: —: —: Direction of Court. The language of the court in sending the jury to inspect the premises, set out in the opinion, held, a substantial compliance with the statute.</p>

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

<p>Appeal from the district court for Red Willow county: Ernest B. Perry, 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>Eminent Domain: Condemnation Proceedings: Appeal: Evidence. In an appeal to the district court from an award made by appraisers under condemnation proceedings, tried without pleadings and upon . the transcript from the county court, matters which the appraisers could not have properly considered to enhance the amount of the award are not proper to be given in evidence or considered by the jury.</p>

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

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

<p>Opinion on motion for rehearing of case reported in 97 Neb. 809.</p>

<p>1. Justice of the Peace: Appeal: Time to File Bond. The statutory-period of ten days for filing an appeal bond in a case tried before a justice of the peace does not begin to run until the judgment is entered on the docket.</p> <p>2. Appeal: Secondary Evidence. In a jury trial in the district court, the sufficiency of the foundation for secondary evidence of the contents of a ledger is a question for the presiding judge, and his ruling will not he reversed on appeal unless an abuse of discretion is affirmatively shown.</p>

<p>Garnishment: Purchaser oe Merchandise in Bulk. The purchaser of a stock of merchandise transferred to him in violation of the Bulk Sales Law holds the property as trustee for the seller’s creditors, and his liability in that capacity may be enforced by garnishment, though he has paid the purchase price and has resold the stock. Rev. St. 1913,. sec. 2651.</p>

<p>1. Carriers: Rates: Power of State Railway Commission. The constitutional amendment creating the state railway commission did not grant to that body exclusive power to fix rates for the transportation of freight and passengers. Const., art. V, sec. 19a.</p> <p>2. —: —: —. Under the constitutional amendment creating the state railway commission, it may fix rates only in the absence of specific legislation. Const., art. V, sec. 19a.</p> <p>3. Statutes in pari materia must be construed together.</p> <p>4. Carriers: Passenoer Rates: Power of State Railway Commission. The. power conferred in general terms upon the state railway commission by the constitution and the state railway commission act does not authorize it to increase the maximum passenger rate of two cents a mile as fixed by the legislature in 1907. Const., art. V, sec. 19a; Rev. St. 1913, secs. 6067, 6107, 6109.</p> <p>5. Statutes: Construction. A particular intention expressed in a legislative act, if in conflict with a general intention expressed in a later enactment, should be given effect, leaving the later act to operate only outside of the scope of the former.</p>

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

<p>1. Criminal Law: Review : Sufficiency of Evidence. It is the settled rule in this court that when a case has been tried two or more times, the verdict each time being in favor of the same party, this court will not set aside the last verdict as being against the weight of the evidence, unless the evidence is clearly insufficient to sustain it. Dunbar v. Briggs, 18 Neb. 94; Missouri P. R. Go. v. Fox, 60 Neb. 581, 557; Boucheh v. Karr, 83 Neb. 649.</p> <p>2. —: —: —. And this rule is not'confined in its operation to civil cases, but is equally applicable in a criminal prosecution. -</p> <p>3. —: —: Errors. And in such a case a thir'd conviction for the same offense will not be set aside for errors occurring at the trial, unless it clearly appears in the record that such errors deprived the accused of a fair trial and were the probable cause of his conviction.</p> <p>4. —: Manslaughter: Sufficiency of Evidence. The evidence set out in this opinion and in our two former opinions, 90 Neb. 390, and 93 Neb. 610, held to be of such a character as to forbid a holding by the appellate court that it is insufficient to sustain the verdict.</p> <p>5. —: Refusal of Instructions. The refusal to give requested instructions, proper in form and substance, is not reversible error, when it appears that every material point contained therein is covered by those given by the court on its own motion.</p>

<p>Homestead: Abandonment: Sufficiency of Evidence. The evidence examined and set out in the opinion held sufficient, when considered in connection with the evidence adduced at the former trial and preserved in the record now before us, to sustain the burden cast upon the defendants by the second paragraph of the syllabus of our former opinion, reported in 92 Neb. 373.</p>

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

<p>1. Master and Servant: Defective Appliances: Notice. An employee is not chargeable with notice of defects in tbe machinery or appliances used in the business, unless the observation and inspection of such machinery or appliances is within the line of his duties, or the defects are obvious.</p> <p>2. —: Appliances: Duty of Master. An employer is bound to exercise reasonable care to furnish his employees with a safe place to work, under the conditions and circumstances of the employment, and the employer is negligent if the employment is rendered unsafe by reason of defects in the machinery or appliances used therein, which defects were known to the employer, or would have been known if he had used reasonable diligence under the circumstances.</p> <p>3. —: Injury to Servant: Contributory Negligence. In an action for damages on account of negligence of defendant, the plaintiff cannot recover if he himself was also guilty of negligence which contributed to the accident which caused the damage. The burden of proof is upon the defendant to establish contributory negligence on the part of the plaintiff. Such question is peculiarly for the jury, and the verdict thereon will not be disturbed unless clearly wrong.</p> <p>4. —: —: Instructions. In such action for damages alleged to have been caused by a defect in the machinery or appliances furnished by the defendant employer, it is erroneous to instruct the jury that the employer is bound to furnish his employee a safe place to work. The duty of the employer in that regard is to furnish a place to work reasonably safe under all the conditions and'circumstances of the employment. But the judgment will not he reversed for such error, if such instruction is immediately followed by a full and correct explanation of the meaning and use of the expression “safe place to work,” and it appears from all of the instructions that the jury has not been misled by the error complained of.</p> <p>5. Appeal: Sufficiency of Evidence. Upon examination of the evidence indicated in the opinion, it is found that the verdict of the jury upon the several questions of fact is not so clearly unsupported by the evidence as to require a reversal.</p>

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

<p>Divorce: Appeal: Attorney’s Fees. In a matter concerning the com.pensation of attorneys engaged in the trial of divorce cases appealed to this court, the supreme court is at liberty to exercise its own judgment and discretion, as well as to avail itself of the estimates placed by experts upon the value of the services.</p>

<p>Creditors’ Suit: Property Subject. Property conveyed by a debtor in consideration of an agreement for Ms future support may be subjected to the payment of a judgment, where there is no other means of enforcing payment, to the extent that the value of the property exceeds the amount. of support actually furnished by the grantee in good faith.</p>

<p>Landlord and Tenant: Lease: Breach: Damages. Upon a breach on the part of the lessor of real estate of a condition in a lease, whereby the lessee suffers partial disturbance and interruption of the quiet enjoyment of the demised premises, the lessee is entitled to recover such damages as are the natural and direct consequence of such breach.</p>

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

<p>1. Mandamus: Parties. Fire protection in a city is a matter of public interest affecting tbe rights of all citizens and taxpayers of such city; and, where the duly constituted officers of the city fail to execute the laws relating thereto, an action to compel execution of the same may be instituted and maintained by a citizen of the city in his individual capacity.</p> <p>2. Municipal Corporations: Firemen: Hours of Service. The provisions of section 4439, Rev. St. 1913, providing, “No fireman, other than the chief and assistant chief of the fire department, shall be compelled or required to be on duty more than twelve hours continuously in any one day, * * * and the proper officers having charge of the fire department * * * are required to make suitable rules and regulations to carry these provisions into effect,” are mandatory, and the officers charged with the duty of carrying them into effect are not free to exercise any discretion in that regard.</p> <p>3. —: —: Validity of Statute. Chapter 7, Laws 1913, amending section 8057, Ann. St.' 1911, is a valid enactment, binding upon all cities of the state having more than 40,000 and less than 100,000 inhabitants.</p> <p>4. —: —: Evidence: Judicial Notice. Courts will take judicial notice of the different class of service rendered by the fire chief and his assistant from that rendered by the other officers of the department, and a statute will not be held to be special legislation and in contravention of section 15, art. III of the Constitution, because they are placed in different classes.</p>

<p>1. Parent and Child: Enticement: Waiver. Where a minor has voluntarily left home and sought an asylum with his sister and her husband, and the father notifies his son-in-law in writing that if he harbors the minor he will claim his wages at a sum named in the notice, such notice is a waiver of the right of the father to maintain an action in tort for damages for enticing the son away and depriving him of his services and companionship.</p> <p>2. —: —: Damages. In such case, the measure of recovery is the reasonable value of the services of the minor, and, in any event, should not exceed the amount specified in the notice.</p>

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

<p>1. Execution, Proceedings in Aid of. The provisions of sections 8117, 8118, Rev. St. 1913, apply to proceedings in garnishment after judgment and return of an execution nulla bona. The provisions of sections 8100 and 8101 do not apply to such a proceeding.</p> <p>2. Appeal: Findings of Pact: Review. In order to obtain a review of the findings of fact, the evidence must he preserved in a hill of exceptions.</p>

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

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

<p>1. Appeal: Supersedeas Bond: Effect. Tlie decree in this an action for specific performance required the plaintiff to reduce the amount of certain incumbrances upon his property within 20 days, whereupon specific performance was ordered. A supersedeas bond and notice of appeal were filed by the defendant within that time. After the expiration of 20 days defendant moved for a judgment of dismissal on account of plaintiff’s failure to comply with the order reducing the incumbrances. Held, that, upon the supersedeas bond being filed and approved, the power of the district court to proceed was suspended, and the court properly overruled the motion.</p> <p>2. Contracts: Suit to Set Aside: Intoxication. A contract will not be set aside on the ground that one of the parties was intoxicated at the time it was entered into, if at the time he fully understood the surrounding circumstances and knew the character and consequences of his act.</p>

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

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

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

<p>1. Public Lands: Homestead Entry: Devise. Where a homestead entryman dies, testate, prior to having completed the residence required to entitle him to obtain a patent to the land entered upon, leaving no widow, or minor children entitled to claim under section 2292, Rev. St. U. S., his devisee succeeds to his rights as entryman, and, upon completion of the fulfilment of the requirements of the homestead act, becomes the owner of such land and entitled to the patent therefor.</p> <p>2. —: —: —: Quieting Title. And, in such case, the fact that when the devisee applies for a patent he fails to present the will of the decedent to the land department will not, in the absence of a plea and proof of facts constituting an estoppel, defeat his right to have his title quieted in the proper local court.</p>

<p>Opinion on motion for rehearing of case reported, ante, p. 7.</p>

<p>1. Banks and Banking: Action bob Interest on Special Deposit: Defense. In an action against a bank to recover interest on a special deposit upon an alleged contract of the bank to pay suck interest, it is immaterial as a defense on tke part of the bank that the deposit was made pursuant to a stipulation by the depositor with other parties to maintain such deposit.</p> <p>2. Appeal: Immaterial Evidence. It is not reversible error on the part of the trial court to refuse to allow any rebuttal of immaterial evidence. The remedy against such immaterial evidence is a motion to strike it out of the record.</p> <p>3. —: Trial to Court: Findings of Fact. In a law action tried by the court, the findings of fact have the same force and effect as the findings of a jury, and will not be reversed, if supported by substantially conflicting evidence, unless clearly wrong.</p> <p>4. —: Sufficiency of Evidence. The evidence in this case, indicated in the opinion, is not such as to require us to say thar the findings of the trial court are clearly wrong.</p>

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

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

<p>1. Appeal: Pleading: New Cause of Action. The same cause of action must be presented and tried upon appeal that was tried in the court below; but “to plead an issuable fact in the appellate court that was not pleaded in the lower court is not necessarily-pleading a new cause of action.”</p> <p>2. Bills and Notes: “Check.” “A ‘check’ is a bill of exchange drawn on a bank payable on demand.” Rev. St. 1913, sec. 5502.</p> <p>3. —: Acceptance. “The holder of a bill presenting the same for acceptance may require that the acceptance be written on the bill.” Rev. St. 1913, sec. 5450.</p> <p>4. —: —. “Where an acceptance is written on a paper other than the bill itself, it does not bind the acceptor except in favor of a person to whom it is shown and who, on the faith thereof, receives the bill for value.” Rev. St. 1913, sec. 5451.</p> <p>5. Banks and Banking: Postdated Check: Acceptance: Authority of Bank President. If a postdated check is, before the day of its date, delivered to the bank upon which it is drawn, and there is no money of the maker of the check on deposit in the bank at the time, the president of the bank has no authority by virtue of his office to bind the bank to pay to the payee the amount of the check on the day of its date.</p> <p>6. —: —: —: —. The president of a bank will not be presumed to be authorized by virtue of Ms office to bind the bank to make good tbe default of another.</p>

<p>Appeal: Dismissal. An appeal to this court will, upon motion, be dismissed as frivolous, when the only ruling complained of is -clearly right and plainly in accordance with the former decisions of this court.</p>

<p>1. Landlord and Tenant: Defective Premises: Liability of Landlord. The rule of caveat emptor applies to leases of real estate, and, in the absence of warranty, deceit, or fraud on the part of the lessor, the lessee cannot recover for personal injuries received through latent defects therein, of which the lessor had no knowledge at the time of making the lease, and which were as patent to the lessee as to the lessor.</p> <p>2. Paragraphs 3 and 4 of our former opinion, Davis v. Manning, 97 Neb. 658, overruled.</p>

<p>Justice of tlie Peace: Appeal: Jurisdiction: Procedure. Section 4809, Ann. St. 1911, gave the defeated party the right to either appeal or prosecute error from a judgment of the county court; and when no trial was had, and the court had merely construed the pleadings, or some of them, no motion for a new trial was necessary in order to give the district court jurisdiction on appeal.</p>

<p>Injunction will not lie to prevent the enforcement of an alleged void statute, where it is not affirmatively shown that the plaintiff has not an adequate remedy at law.</p>

<p>1. Judgment: Revivor: Limitations. The act of 1909 (Laws 1909, ch. 154, Rev. St. 1913, sec. 8041), relating to revivor of dormant judgments, applies to all judgments rendered before as well as those rendered after its passage.</p> <p>2. —: —: Validity of Statute. The time between the passage of the act and the date when it took effect will be considered by the courts in passing upon the question as to whether reasonable time was given thereby to judgment creditors in which to assert their rights:</p>

<p>1. Appeal: Reversal: Law oe the Case. Where a judgment of the district court is reversed and the cause is remanded for a new trial, on such new trial the court is bound by the law of the ease as announced by the supreme court.</p> <p>2. Principal and Agent: Contract with Principal. An agent, who makes a contract with his principal in regard to the subject matter of his agency, must disclose to his principal all of the facts within his knowledge affecting the value of the things so contracted for. If he fails to do so, the principal will not be bound by the contract so made.</p>

<p>Carriers: Transportation of Live Stock: Action for Injuries: Instructions. Where a joint action was brought against an initial and a connecting carrier for injuries to animals transported over both roads and a judgment was rendered exonerating the connecting carrier, from which judgment no appeal was taken, it was erroneous to instruct the jury, on appeal to the district court by the initial carrier from the judgment against it, that they might consider and assess damages for injuries occurring on the line of the connecting carrier.</p>

<p>1. Wills: Suit to Enforce: Jurisdiction. An action by a legatee to quiet the title of the administrator with the will annexed to certain real estate of the testator for the purpose of sale, to declare a trust and that the administrator is a trustee, to define his duties, to determine the question whether an outstanding life estate exists in the principal defendant, and to recover possession of the land for the trustee, is not within the jurisdiction of the county court, and is within the jurisdiction of the district court, sitting as a court of equity.</p> <p>2. —: Devise: Construction. Whether a devise is upon a condition precedent or subsequent is not to be determined alone from the use of technical words in a will. The question is one of the intention of the testator. If the language of the whole will shows that it was the intention of the testator that the act upon which the right depends was to be performed before the interest vested, the condition is precedent, and., in such case, unless the act is performed as directed and required by the will, no interest in the property passes.</p> <p>3. —: —: —: Condition Precedent. Will construed, and held that the payment of the mortgage upon the land was a condition precedent to the right of the appellant to the use and occupation of the premises.</p>

<p>1. Intoxicating Liquors: Grant or License: Discretion of Board: Review. The issuance of a license to sell intoxicating liquors is committed by the statute to the discretion of the several excise boards and city and village councils. The power of the courts to review their decisions extends to determining whether the jurisdictional facts necessary to the granting of the license have been shown to exist, and, in some cases, to determine whether their action in refusing a license has been so arbitrary and unjust as to constitute an abuse of discretion.</p> <p>2. —: —: —: Presumption: Burden oe Proof. In the absence of evidence to the contrary, it will be presumed that an excise board has exercised a legal discretion in determining the number of liquor licenses to be issued, and in refusing to grant a license in excess of the number fixed. The burden of proof is upon one who asserts that there has been an abuse of discretion.</p>

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

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

<p>Criminal Law: New Trial: Newly Discovered Evidence. The statutes have been so construed as not to allow a new trial after the term in which judgment has been rendered in a criminal case as it is in a civil case, and when it is conceded by the state that facts exist, as disclosed by circumstances after the trial, which could not have been known at the trial, and which have a direct bearing upon the question of the defendant’s guilt, and, if unexplained, render it improbable that the defendant is guilty, a new trial will be awarded.</p>

<p>1. Street Railways: Injury to Passenger: Negligence. It is not negligence per se for a street ear passenger to take a position with one foot on the steps of the car, with one hand holding onto the handrail, and one foot swinging in the air preparatory to alighting at his place of destination.</p> <p>2. —: —: —: Assumption of Bisks. But, in taking such a position, the passenger assumes the risks incident to the careful, ordinary and necessary operation of the car.</p> <p>3. —: —: —: Burden of Proof. If, under such circumstances, the passenger is injured by slipping from the steps while the ear is in motion and before it reaches its usual stopping place, he must prove that his slipping from the steps was occasioned by the negligent operation of the car, which was the proximate cause of his injury.</p>

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

<p>Statutes: Construction. “In the exposition of statutes, the reason and intention of the lawgiver will control the strict letter of the law when the latter would lead to palpable injustice or absurdity.” Kelley v. Gaye County, 67 Neb. 6.</p>

<p>1. Wills: Construction: Direction to Sell Lands: Equity. As a general rule, where a testator directs the sale of a specific tract of land for the purpose of paying certain bequests from the proceeds, a court of equity will consider that the conversion of the land into personalty has taken place. The fact that the time of the sale is postponed for a definite term is not material, and the conversion will be held to have been made at the time of the testator’s death.'</p> <p>2. —: —: Request: Validity. By the will of a man of Swedish parentage, a bequest was made to the “Swedish Mission Society of Chicago, Illinois.” No corporation or association of that name existed at the time of the making of the will or of the testator’s death, but the evidence shows that a corporation whose proper name is the “Swedish Evangelical Mission Covenant in America” is commonly known among Swedish people as the “Swedish Mission Society;” that its headquarters are in Chicago, Illinois; that deceased for a time attended a church of such denomination in Omaha, was personally acquainted with a number of its ministers, and for years had taken a Swedish paper published in the interest of such society, Held, that the intention of the testator was to make the bequest to the “Swedish Evangelical Mission Covenant in America,” and that the same was a valid bequest.</p>

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

<p>Appeal from tbe district court for Holt county: R. R. Dickson, Judge.</p>

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

<p>1. Master and Servant: Injury to Servant: Assumption of Risks. A servant assumes the ordinary risks and dangers incident to his employment, which he knows or which by the exercise of ordinary care a person of his age, experience and capacity, under the circumstances, should have known.</p> <p>2. — : —: Actionable Negligence. An employer’s direction to an employee to hurry is not actionable negligence, where it does not tend to subject him to a hazard not ordinarily incident to his employment, or to inspire fear, or to confuse, excite'or distract him, or otherwise to prevent him from exercising ordinary care for his own safety.</p>

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

<p>Brokers: Action for Commission. Bell v. Stedman, 88 Neb. 625, reaffirmed, and held decisive of the ease at bar.</p>

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

<p>1. Drains: Drainage District: Apportionment of Benefits. Paragraphs 1 and 2 of the syllabus in Baker v. Morrill Drainage District, ante, p. 791, held applicable to and decisive of points 1 and 2 considered in this case.</p> <p>2. —: —: —: Injunction: Laches. The laches of plaintiffs, set out in the opinion, examined, and held a bar to relief by injunction.</p>

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

<p>Rehearing of case reported in 97 Neb. 812.</p>

<p>1. Indians: Allottee: Devise. The act of congress (36 U. S. St. at Large, pt. 1, p. 856, sec. 2), authorizing a member of the Omaha tribe of Indians to whom land had been allotted under the prior act of congress to devise his interest in the land by will, is not inconsistent with the prior act.</p> <p>2. —: Wills: Approval. The provision in the later act that such will should not be valid unless approved by the Commissioner of Indian Affairs and the Secretary of the Interior does not require that such approval must be contemporaneous with the mating of the will, or before the death of the testator, if the will and probate thereof are regular, the interest of the testator in the land passes to the devisee upon the approval of the proper officials.</p>

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

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

<p>Opinion on motion for rehearing of case reported, ante, p. 92.</p>

<p>Rehearing of case reported in 97 Neb. 483.</p>

<p>Contracts: Rescission. A contract procured by the intentional suppression or concealment of material facts touching the very substance of it by one party, which facts, if they had been disclosed, would have prevented the other party from entering into it, may be rescinded by the party deceived, and the guilty party is not entitled to its enforcement.</p>

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

<p>1. Judgment: Revivor: Forum. The forum for the revival of a dormant judgment of a district court is the court of original jurisdiction, and an attempted revival in another district court to which the judgment has been removed by transcript is void.</p> <p>2. Creditors’ Suit: Basis: Dormant Judgment. As a general rule a dormant judgment cannot be made the basis for a creditor’s bill.</p>

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

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

<p>1. Appeal: Pleading: Same Cause of Action. The petition filed in the district court, set out in. the opinion, examined, and held to state tho same cause of action as that set out in the bill of particulars in justice court.</p> <p>2. —: —: —: Change of Issues. Myers v. Moore, 78 Neb. 448, and North & Go. v. Angelo, 75 Neb. 381, held decisive of the case at bar.</p>

<p>1. Executors and Adminstrators: Final Account. Although, notice has been given of final settlement of an estate in probate, and orders are made thereon determining the heirs and fixing their interests and adjusting certain uncontested items of the administrator’s account, ordors so adjusting items of the account will not be regarded as final, if the administrator is not discharged, and additional collections and disbursements by him are required and a further report necessary.</p> <p>2. —: Appeal: Modification of Judgment. An item of charge, $511.72, against the administrator by our former decision (97 Neb. 780), is found to be erroneous, and our judgment is corrected accordingly.</p>

<p>1. County Commissioners: Term of Office. The official term of the office of county commissioner in counties not under township organization is four years. By the act of 1913 (Laws 1913, ch. 149, sec. 17, Rev. St. 1913, sec. 1955) it is provided that in counties having three commissioners two shall be elected in the yea,r 1914 for a term of four years and one in 1916 for a term of four years.</p> <p>2. —: Election: Validity: Notice. The failure to give the statutory notice of election of county commissioner will not of itself invalidate an election. But, if it appears that such failure has prevented the electors generally from voting upon a question, it cannot be held that there has been an election upon that question.</p>

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

<p>1. Carriers: Delayed Shipment: Action for Damages: Sufficiency of Evidence. Evidence examined, and helé sufficient to sustain the judgment for damages on the issue of negligence, in the shipment of a car of bananas.</p> <p>2. —: —: —: Defenses: Wawer. Provisions of a bill of lading requiring written notice of damage to be given to the carrier and fixing a time less than that fixed by the statute in which action shall be commenced, in order to be available as defenses, must be pleaded as such, otherwise they are deemed waived.</p>

<p>Opinion on motion for rehearing of case reported, ante, p. 3.40.</p>

<p>1. Insurance: Action: Attorney’s Fees. By the act of 1913 (Laws 1913, ch. 154, sec. 1; Rev. St. 1913, sec. 3137), any company or person that engages in the business of apportioning and distributing losses arising from specified causes, among all those who apply and are accepted to receive the benefits of such service, engages in a business of public character. The statute classifies such business as insurance, and provides at large for the regulation and supervision of such business. In actions upon contracts of indemnity by companies authorized under the statute, “the court upon rendering judgment against such company or person shall allow the plaintiff a reasonable sum as an attorney’s fee, in addition to the amount of his recovery, to be taxed as part of the costs.” Rev. St. 1913, see. 3212.</p> <p>2. —: —: —. In such case it has been determined in this state that attorney’s fees to be so taxed as costs relate only to the remedy, and are to be so taxed without regard to whether the contract sued upon was entered into before or after the enactment of the statute.</p>