Volume 99 — Nebraska Reports

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

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

<p>Carriers: Neglect oe Live Stock: Liability oe Carrier. A shipper of live stock, furnished by an interstate carrier with transportation under a contract to care for, feed, water and unload his own stock when necessary, who actually accompanies his shipment on the train in which they are transported, and consents to and participates with the carrier in a violation of the federal statutes relating to such shipment, is not in a position to maintain a civil action for damages against such carrier, alleged to have been caused by such violation.</p>

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

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

<p>1. Wills: Construction. In the construction of á will the intention of the testator, if it can be ascertained, must govern. Such intention should be ascertained from a liberal interpretation and comprehensive view of all of the provisions of the will.</p> <p>2. -: --. Under provisions of the testator’s will set out in the opinion, held, that he intended to convey to his widow only a life estate.</p>

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

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

<p>Judgment: Enforcement: Injunction: Petition. To justify the interposition of a court of equity to enjoin a judgment in a case in which it is claimed that there was a defective service of process, it must appear that a valid defense exists to the merits of the original suit, and the plea to be good in this respect must state the facts so that the court can determine whether, if proved, they constitute a defense.</p>

<p>Husband and Wife: Necessaries: Liability oe Husband. A husband who is living apart from his wife and is paying temporary alimony awarded to her by the court in a suit for divorce is not liable to a third person for necessaries furnished to her, the former being chargeable with knowledge of those facts, and the adequacy of the temporary alimony not being subject to question by a stranger.</p>

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

<p>1. Jury: Drawing op Panel: Presumption. In counties of 30,000 or more inhabitants the regular panel of 30 jurors for each judge of the court must be drawn by lot from the regular jury list, and cannot be filled by the sheriff by calling bystanders. The regular jury list consists of not less than one-fifteenth of the legal voters of the county, and it will not be presumed, in the absence of evidence, that the list was exhausted in the ordinary work of the court.</p> <p>2. -: ■ — 1-: Talesmen. In case the jury list should be exhausted so that the panel could not be filled as the law requires, talesmen might be called, if “required in such court for trial of any cause” (Rev. St. 1913, sec. 8156), but the regular panel cannot in any case be filled in that manner. The third paragraph of the syllabus of our former opinion (97 Neb. 293) is disapproved.</p> <p>3. -: Irregular Panel: Notice: Presumption. The parties to an action are supposed to take notice of formalities in making jury lists which are required by statute and regularly shown upon the record, but not necessarily of orders made in the trial of other cases in which they are not interested, or that the regular jury panel had been exhausted in the trial of a prior case, and had then been unlawfully filled by calling bystanders.</p> <p>A. -: Drawing op Panel: Presumption. If there is no order to call talesmen in the case in which counsel are interested, and the jurors are called by the clerk in the ordinary manner, they may rely upon the statute which requires that the jurors be called from the regular panel.</p> <p>5. New Trial: Jury: Irregular Panel. It is erroneous to order that the regular trial panel be filled from bystanders. If the panel has been so formed, and a jury called therefrom for the trial of a cause, without the knowledge of the parties thereto until after the trial of the case that the panel has been so filled, and the objection is made in a motion for new trial regularly filed, such objection should be sustained and a new trial granted.</p>

<p>1. Schools and School Districts: Taxes: Amount oe Levy. When a school district has money in its treasury available for the support of the school during the ensuing school year, it is bound to take that fact into account in fixing the tax levy, and the levy should be made for no more than will approximately raise the difference between the amount on hand and the amount determined as necessary to meet the expenses of the district for the ensuing school year.</p> <p>2. -: Building Fund: Tax Levy: Validity. ' Where a school district undertakes to vote a tax for the purpose of creating a building fund without complying with the provisions of section 11543, Ann. St. 1911, (Rev. St. 1913, sec. 6743) any assessment or levy made thereunder is void.</p> <p>3. Taxation: Injunction. Injunction will lie to restrain the collection of a tax levied or assessed for an unauthorized or illegal purpose.</p>

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

■ Original proceeding in mandamus to compel respondent to countersign and pay a warrant for the salary of relator as deputy state fire commissioner.

<p>1. Carriers: Duty to Intending Passengers. Ordinarily it is not the duty of a railroad company to furnish an escort or guide to an intending passenger to protect him from accident, unless it is charged with knowledge from' the circumstances that the intending passenger is weak, infirm or defective in such a degree as to necessitate assistance.</p> <p>2. -: Action for Injury: Petition: Sufficiency. A petition, the substance of which is set forth in the opinion, held not to state a cause of action for negligence on the part of a carrier of passengers.</p>

<p>1. County Treasurers: Liability fob Interest. “A county treasurer is not liable on his bond for interest which he has not collected and has been unable to collect upon the public funds in his care, unless .it appears that some act or neglect of his has prevented or hindered the collection of such interest.” Hamilton County v. Cunningham, 87 Neb. 650.</p> <p>2. County Depository: Liability for Interest. In such a case, where there is no proof of any collusion or bad faith, and it appears that no interest or profit was received by the treasurer, and that the bank continuously had on hand in cash a sufficient amount over its legal reserve to pay the entire deposit, the bank is equally free from liability.</p>

<p>1. Attachment: Redelivery Bond: Validity. A redelivery bond was executed and filed by one of the principals therein with the clerk of the district court with the purpose to procure the release of certain goods attached. The sheriff, by the consent and direction of the attorney for the plaintiff in the attachment suit, thereupon released the levy. Held, that since the bond accomplished its purpose and was in fact accepted and approved, the facts that it was not manually delivered to the sheriff and no approval was indorsed thereupon did not invalidate it either as to the principals or to a surety company who signed as security.</p> <p>2. Assignments: Actions: Parties: Redelivery Bond. One who purchases choses in action during the pendency of a suit thereon may carry on the suit in the name of the original plaintiff, and may maintain an action in the name of the original plaintiff and obligee in a redelivery bond given to secure the return of property attached in the suit.</p> <p>3. Election of Remedies: Estoppel. A mere attempt to pursue a remedy or to claim a right to which a party is not entitled, without obtaining legal satisfaction therein, will not deprive him of a right to which he is properly entitled.</p> <p>4. Attachment: Action on Redelivery Bond: Burden of Proof. Where attached property has been surrendered under a redelivery bond, the burden of proof is upon the attachment debtor to whom it has been surrendered to account for its loss or nonproduction.</p> <p>5. Estoppel: Redelivery Bond: Ownership of Property. A principal in a redelivery bond given to secure the surrender of attached property is estopped to assert that he is the owner of it in an-action upon such bond.</p>

<p>1. Master and Servant: Injury to Servant: Compensation Act: Payment in Lump Sum. Under section 3681, Rev. St. 1913, of the workmen’s compensation act, after the amount of compensation payable has been fixed either by agreement or by the decision of a court, the parties may agree for the payment of a lump sum in lieu of the periodical payments. There is no provision in the statutes allowing either party to compel the employer to pay, or the workman or dependent to receive, a lump sum satisfaction.</p> <p>2. -: —-•: Agreement as to Compensation: Surety. If an employer and the party to whom payment is to be made make a reasonable agreement in good faith for the payment of a lump sum not inconsistent with the amount of the periodical payments previously determined, the agreement will bind an insurance company, which has assumed a risk under section 3.688, Rev. St. 1913, equally with the employer. It has no greater rights than he has, and cannot block a settlement by objecting to payment in a lump sum merely because it was not consulted.</p> <p>3. ;-: -: Compensation: Commutation. Commutation is a departure from the normal method of payment, and is to bo allowed only when, it clearly appears that the condition of the beneficiaries warrants such departure.</p> <p>4. -: -: Agreement as to Compensation. There is .no requirement in the section of the statute which applies to residents of this country that six months must elapse before an agreement for a lump sum payment may be made, or the consent of the district court be procured to such an agreement.</p> <p>5. -: -: Compensation:- Computation. A lump sum settlement made by taking the present value of the periodical payments computed at 5 per pent, simple interest is not erroneous.</p>

<p>1. Novation. “There can he no novation of a debt in the absence ofan unqualified discharge of the original debtor by the creditor.” West- ■ ern White Bronze Go. v. Portrey, 50 Neb. 801.</p> <p>2. -: Discharge: Assignment. An order assigning to a creditor money to become due from tbe state to a public building contractor, wbicb was accepted by tbe state, is not a bar to an action against tbe contractor for a balance due on tbe order, where it was not agreed that sucb assignment should discharge tbe debtor’s obligation.</p>

<p>Fraudulent Conveyances: Parent and Child: Burden of Proof. Where a transfer of personal property from a son to his mother in payment of a past-due indebtedness is attacked by judgment creditors as fraudulent, the burden is upon the transferee to show that the indebtedness was genuine, that the transaction was honest and that the transfer was made in good faith, but where these facts are shown by uncontradicted testimony of the parties to the transfer and appear to be reasonable and to be consistent with honesty and fair dealing, when considered with surrounding conditions and circumstances, it may be upheld.</p>

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

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

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

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

<p>Paupers: Liability of County. A resident of Kearney county became sick 'and destitute in Newark township, of that county. He was without property or means of any kind, but had living within the county an able-bodied, unmarried son, employed as a farm hand, and the owner of unincumbered real estate worth more than $1,000. Without calling upon the son to provide for his father, and without any. authority from the county board to create an obligation against the county, plaintiff township expended money for his board and hospital fees. In an action against the county to recover the amount expended, held that the county is not liable.</p>

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

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

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

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

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

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

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

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

<p>Error to the district court for Washington county: William A. Redick, Judge.</p>

<p>1. Evidence: Probative Effect. Physical facts that are so palpable as to amount substantially to demonstration may entirely overcome the testimony of several interested witnesses, especially if they are testifying long after the circumstances to which their testimony relates, and the circumstances, and their manner of testifying, are such as to indicate that they are testifying, not from actual knowledge and recollection of the facts, but from a strong belief and desire to establish such facts.</p> <p>2. Bills and Notes: Indorsement: Evidence. In this case the plaintiff purchased the notes in suit in good faith and paid full value, and the evidence furnished hy the physical condition of the notes in suit, together with plantiff’s evidence and the circumstances proved, overcome the testimony of defendants that the indorsement of transfer of the notes, rendering them negotiable, was not upon the notes when the plaintiff purchased them.</p>

<p>1. Appeal: Briefs: Statement of Evidence. Upon appeal the statement in the briefs of the substance of the evidence bearing upon a question of fact necessary to the determination of the case “will be taken to be accurate and sufficient for a full understanding of the questions presented for decision, unless the opposite party in his brief shall deny the correctness or accuracy of the statement, specifying with particularity the defects and inaccuracies therein, with citation of the page and paragraph of the transcript or page and question of the bill of exceptions, as the case may be, relied upon by him in support of his contentions in that regard.” Supreme Court Rule 12 (94 Neb. XI).</p> <p>2. Taxation: Railroad Property: Assessment. The expression “right of way and depot grounds” in section 6375, Rev. St. 1913, was not intended to exclude from the jurisdiction of the state board in assessing railroads all property situated more than 100 feet from the center of the main track of the road.</p> <p>Í. -: -: -. A railroad, for the purpose of assessment and taxation, is considered as an entity, and includes all property that is held and used principally in the operation of the road and carrying on the business of transportation.</p> <p>4. -: -: -. The state board of equalization in assessing a railroad acts in a quasi-judicial capacity. In doubtful cases its determination as to whether a particular article of property is a part of the railroad entity is to be considered by local assessors.</p> <p>5. -: -: -. The construction in Adams County v. Kansas City & O. R. Co,t 71 Neb. 549, of that part of the revenue law (Rev. St. 1913, sec. 6375) which specifies property to he assessed locally is adhered to.</p> <p>6. -: -: -. A large quantity of steel rails not shown to he intended for repair of the road in this state and not assessed hy the state hoard may he assessed locally.</p> <p>• 7. -: -: —:—. Eleven miles of fence on leased land not assessed hy the state hoard may also he locally assessed.</p>

<p>1. Trade-Names: Infringement. It is an infringement on a legally acquired trade-name to use, in the same locality and in the same line of business, another name of such similar import that the ordinary attention of persons would not disclose the difference between the two names.</p> <p>2. Trade-Marks: Infringement: Injunction. When the owner of a trade-mark applies for an injunction to restrain a competitor from injuring his property by making false representations to the public, it is essential that the complainant and the defendant should both be engaged in the sale of the same kind of goods.</p>

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

<p>Wills: Contest: Attorney’s Fees: Allowance: Amount. Counsel were employed by- decedent’s busband, wbo was not a legatee, and tlie will was successfully contested. Held, that compensation for such, services, the costs and necessary expenses thereof are proper charges against the estate. The amount of such allowances should be determined upon consideration of the reasonableness of the charges, the necessity of the employment, the actual services rendered, the size of the estate, and the benefits accruing thereto.</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 Gr. Sears, Judge.</p>

<p>1. Deeds: Forfeiture of Title. Where a contract, under which the title to an elevator site was conveyed to a grain dealer for the erection of an elevator, contains the provision that, “in case the elevator burns or is otherwise destroyed,” grantee “will rebuild the same within a reasonable time, or, failing to thus rebuild, reeonvey the real estate” to the grantor, the title of the grantee cannot be forfeited for not rebuilding, until the lapse of a reasonable time after the destruction of the elevator,</p> <p>2. -: -. Where land is conveyed by a deed containing the provision that, in case of the destruction of a building thereon and the failure of the grantee to rebuild within a reasonable time, the ■ grantee shall reconvey the land to the grantor, grantee does not - lose title by forfeiture during an extension of time duly granted for rebuilding purposes.</p> <p>3. -: Agreement to Reconvey: Waiver. The right of a corporate grantor to demand a reconveyance of land in the event of a breach of an agreement by grantee to rebuild an elevator thereon within a reasonable time after its destruction by fire may be waived without the formalities essential to the execution of a deed conveying real estate.</p> <p>4. Principal and Agent: Contract by Agent: Acceptance of 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.” Tylee v. Illinois C. B. Go., 97 Neb. 646.</p> <p>5. -: -: -. ■ “A principal will not be permitted to ' adopt the beneficial part of an unauthorized contract made by his agent and reject the remainder.” Farmers & Merchants Bank v. Farmers & Merchants Nat. Bank, 49 Neb. 379.</p>

<p>Waters: Irrigation: Discrimination. The evidence examined and referred to in the opinion held insufficient to sustain any recovery by plaintiff.</p>

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

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

<p>1!. Constitutional Law: Definitive Statute: “Week.” The act of 1915 . (Laws 1915, ch. 222) is a general act defining the word ‘week” as used in our laws, and is not unconstitutional as an attempt to control judicial actions.</p> <p>2. Wills: Probate: Notice. The act was not intended to change the construction of former statutes which provide for publication of notices in weekly papers.</p>

<p>1. Adverse Possession: Appeal: Sufficiency of Evidence. .Where a railroad company succeeds to the interest of a grantee in a void tax deed covering a vacant town lot lying contiguous to its right of way, pays the taxes assessed thereon for nearly 30 years, and exercises the same jurisdiction over it as over other parts of its right of way and property at that point on its line, a, verdict of a jury holding in effect that its title has become absolute will be sustained.</p>

<p>1. Master and Servant: Injury to Servant: Pleading: Fellow Servants. In an action for personal injuries by a servant against the master, it is not necessary to allege in the petition that plaintiff and defendant’s servants charged with the negligence alleged were not fellow servants, if the petition sets up facts from which such conclusion, necessarily follows.</p> <p>2. Appeal: Pleading. Where the sufficiency of a petition is. attacked for the first time in this court, it will, when possible, be sustained.</p> <p>3. Master and Servant: Fellow Servants. “Employment in the service of a common master is not alone sufficient to constitute two men fellow servants within the rule exempting the master from liability to one for injuries caused by the negligence of the other. To make the rule applicable there must be some consociation in the same department of duty or line of employment.” Union P. R. Co. ■ v. Mridkson, 41 Neb. 1.</p>

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

<p>1. Mortgages: Foreclosure: Decree: Dormancy. A decree of foreclosure of a mortgage in this state is not a judgment within the meaning of section 8056, Rev. St. 1913. St. Paul Harvester WorJcs v. HucTcjelát, 96 Neh. 552.</p> <p>2. -: -: Limitations: Order oe Sale. A decree of foreclosure may be enforced without an order of sale, and the lien thereof is not lost by a failure to procure the issuance of such an order within five years from the date of the decree.</p>

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

<p>1. Appeal in Equity: Trial de Novo. Upon appeal in actions in equity, this court is required by the statute to try the issues de novo, without reference to findings of the trial court; but, when the testimony of witnesses orally examined before the court upon the vital issues in the case is conflicting, so that it would be impossible that both versions of the transaction can be true, this court will consider the fact that the trial court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite.</p> <p>2. -: Conflicting Evidence. When witnesses, of apparently equal credibility, disagree in their testimony as to an important fact, circumstances in the evidence which tend to indicate which version of the transaction is reliable will be carefully considered.</p> <p>3. -: Sufficiency of Evidence. The evidence in this case is considered to justify the findings of the trial court.</p>

<p>1. Master and Servant: Injury to Servant: Right to Compensation. An employee is not entitled to compensation for injury under the employers’ liability act unless the accident which caused the injury happened in the course of his employment, and arose out of his employment. Rev. St. 1913, sec. 3650.</p> <p>2. -: -: -. An accident resulting from a risk reasonably'4 incident to the employment should be considered as arising out of the employment.</p> <p>3. -: -: ■ — —: Assault. If an employee is assaulted by a fellow workman, whether in anger or in play, an injury so sustained does not arise “out of the employment,” and the employed is not entitled to compensation therefor under the employer’s liability act.</p> <p>4. —--: -•: Compensation. The employers’ liability act allows the parties interested to “settle all matters of compensation between themselves.” Rev. St. 1913, sec. 3677. The amount of compensation, when not agreed upon by the parties, is to be determined by the district court (section 3680) and, except as expressly provided in the act, must be payable periodically (section 3666).</p> <p>5. -: -: Commutation of Compensation. When the amount of compensation in periodical payments has been determined, either by agreement of the parties, or by the decision of the court, it “may be commuted to one or more lump sum payments, except compensation due for death and permanent disability.” - Rev. St. 1913, sec. 3681.</p> <p>6. -: -: -: Consent of Court. In such case no other or different authority for making such commutation is provided by that section. It still depends upon the 'agreement of the parties, except that their right to so agree in the specified cases depends upon “the consent bf the district court.”</p> <p>7. -: -: •-: --. In general, the agreement of the parties will authorize such commutation of payments. In case of death or permanent disability, the consent of the court is also necessary. If the district court upon careful investigation finds that special circumstances exist making it necessary to commute to a lump sum for the protection of the workman or his dependents, the court may .“consent” to such agreement by the parties.</p>

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

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

<p>1. Schools and School Districts: Conduct oe Schools. What shall be done in the common schools in an educational way is to be determined at school meetings held in each school district, and also by the officers of each school district as the statute may direct.</p> <p>2. Mandamus: Instruction in German: Duty oe Board. Where the parents or guardians of 50 children above the fourth grade residing in such a school district as is referred to in section 6941, Rev. St. 1913, petition the school board of the said district requesting that German be taught in said school as an elective study, it is the duty of the board to comply with the prayer of the petition and to make provision for the teaching of German in said school as required by said section, and it may be compelled to do so by mandamus.</p> <p>3. Statutes: Construction. The fundamental principle of statutory construction is ascertainment of the intent of the legislature. People v. Weston, 3 Neb. 312.</p> <p>4. -; -. “In construing a statute, words should be given their usual meaning.” State v. Byrum, 60 Neb. 384.</p> <p>5. -: -: Exceptions. The court will not read into a statute exceptions not made by the legislature.</p> <p>6. -: -. “Where a statute is clear and unambiguous in its terms, it is the duty of the court, in construing it, to give the language used by the legislature its plain and ordinary meaning.” State v. Bratton, 90 Neb. 382.</p> <p>7. -: Constitutionality; Province oe Courts. It is not for the court to inquire into the motives of the legislature in the enactment of laws, or to determine their wisdom, or the lack of it. Stewart v. Barton, 91 Neb. 96.</p> <p>8. -: Construction. It is for the legislature to determine the policy of any enactment it may make. The legislature and the courts each act in a separate capacity, and each is independent of the other.</p> <p>9. —-■: Kepeal by Implication. “A legislative act complete in itself is not inimical to the provisions of section 11, art. Ill of the Constitution; and where such an act is repugnant to, or in conflict with, a prior law, which is not referred to nor in express terms repealed by the later act, the earlier statute is repealed by implication.” State v. Hevelone, 92 Neb. 748.</p>

<p>1. Damages. A verdict for plaintiff assessing the total damages at $25,000, under the evidence set out in the opinion, held to be excessive.</p> <p>2. Statutes: Construction. In construing a federal statute, this court will follow the construction placed upon it by the federal courts.</p> <p>3. Damages: Remittitur, In an action under the federal employers’ liability act (35 U. S. St. at Large, ch. 149, p. 65), where the court has instructed the jury that the contributory negligence of deceased has been shown,,but the jury malíes no deduction in the amount of the verdict because of such negligence, the court may order such remittitur as seems proper under the evidence.</p> <p>4. Damages: Apportionment. A general verdict for the plaintiff may be returned by the jury in an action brought by the administrator under the federal employers’ liability act for the benefit of the widow and minor children of the deceased employee without apportioning the damages among the beneficiaries.</p>

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

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

<p>1. Criminal Law: Appeal: Law of the Case: Admissibility of Evidence. On a second appeal to the supreme court, where the evidence is substantially the same as that presented on the first appeal, our former opinion on the question of the admissibility of the evidence is conclusive.</p> <p>2. --: Instructions. Instructions given by the trial court examined, and held without reversible error.</p> <p>3. --: Refusal of Instructions. Instructions requested by defendant examined, and found to have been properly refused.</p>

<p>1. Action: Joinder: Suit Against Corporation. In a suit against stockholders of an insolvent corporation by a judgment creditor of the corporation, a cause of action for conversion .of corporate assets may be joined with one for the statutory liability of stockholders on account of failure to publish notice of the amount of corporate • indebtedness.</p> <p>2. Corporations: Insolvency: Trust Funds. Property of an insolvent corporation in the hands of its officers who have taken the same in payment of debts due them, or its proceeds, is held by them in trust for all creditors pro rata, including themselves.</p>

<p>Railroads: Injury to Pedestrians: Contributory Negligence. The duty of a traveler upon a public highway approaching a railroad crossing is to exercise ordinary care. A railroad crossing is a place of danger, and if he goes thereupon without first looking and listening for the approach of a train, without a reasonable excuse therefor, and such failure to look and listen contributes to his injury, he cannot recover.</p>

<p>1. Taxation: Place oe Taxation: Personalty. Under section 6314, Rev. St. 1913, personal property ordinarily is required to be listed and assessed where the owner resides, but “property having local situs, like grain elevators, lumber yards • or any established business, shall be listed and assessed at the place of such situs.”</p> <p>2. -: -: -: Credits. Where a corporation operates, in several counties, stations for the purpose of selling lumber, fuel, grain and live stock, each station should be assessed as an independent business, and its net credits thereat should be ascertained by deducting the indebtedness incurred in conducting the business at such station from the gross credits thereof. Rev. St. 1913, secs. 6314, 6329.</p>

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

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

<p>1. Mortgages: Foreclosure: Pleading: Priority. In a suit to foreclose an unrecorded mortgage, a cross-petitioner seeking to foreclose, as a first lien, a subsequent mortgage, duly recorded, must allege the actual consideration tberefor and the payment thereof, and must also allege facts showing that he took his mortgage without notice of plaintiff’s interests.</p> <p>2. -:-: Priority: Consideration: Proof. In a suit to foreclose an unrecorded mortgage, where a cross-petitioner seeks to foreclose, as a first lien, a subsequent mortgage, duly recorded, the presumption that the secured note was issued for a valuable consideration is insufficient for the purpose of showing the actual consideration paid.</p> <p>3. Appeal: Denial of Continuance. Where a cross-petitioner obtains all the relief to which lie is entitled under his pleadings, the denial of a continuance requested by him is not prejudicial error.</p>

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

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

<p>1. Husband and Wife: Separate Maintenance. Where a wife is compelled by the misconduct of her husband to' live separate and apart from him, she is entitled to a decree for separate maintenance.</p> <p>2. Divorce: Suit for Maintenance: Decree. In an action by a wife for separate maintenance on the ground of adultery, habitual drunkenness, extreme cruelty, and failure to support, the court may grant a limited divorce from bed and board with suitable maintenance at the prayer of the wife, although it is found that all of ’the alleged grounds for divorce exist.</p> <p>3. Husband and Wife: Suit fob Maintenance: Evidence. Tbe evidence in tbis case, indicated in tbe opinion, is found sufficient to support tbe decree for separate support and maintenance1.</p>

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

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

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

<p>1. Contracts: Rescission. “Payments or concessions exacted from the owner of property unlawfully withheld, in order to obtain possession thereof, where the detention is accompanied by immediate hardship or irreparable injury, may be avoided on the ground of compulsion, although not amounting to technical duress.” Weber v. Kirkendall, 44 Neb. 766.</p> <p>2. Trial: Exclusion of Evidence. An itemized receipt prepared by the attorney of a party, which the opposite party refused to accept, is not binding on the party refusing to accept it, and may be excluded without error when offered in evidence.</p> <p>3. Verdict: Amount. Plaintiff claimed $2,000 damages for failure of the defendant to properly care for his cattle while in defendant’s possession, and $208 for a failure to return four head thereof. Held, that a verdict for $208 for those items was not excessive.</p> <p>4. Novation. An agreement between two parties that one of them shall pay a third person an amount of money for which they were separately liable in equal parts does not create a novation unless and until the third party sanctions such an agreement.</p>

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

<p>1. Constitutional Law: Brokers: Interest. The act fixing the maximum rate of interest at 10 per cent, per annum, providing for the issuance of a license, and authorizing licensed money-lenders to charge a brokerage fee not exceeding one-tenth of the money actually lent and, in exceptional cases, an examination fee of 50 cents, in addition to interest, is not unconstitutional as being a “local or special law * * * regulating the interest on money,” nor as denying “the equal protection of the laws.” Laws 1915, ch. 204.</p> <p>2. -: -: Validity of Statute. The act conferring upon the secretary of state, after a hearing, power to reject an application for ,a license to lend money is not unconstitutional as conferring upon ’that officer arbitrary power. Laws 1915, ch. 204, sec. 3.</p>

<p>Rape: Evidence: Corroboration. In a prosecution for rape upon a female child not previously unchaste, proof of facts and circumstances justifying a finding, independently of her own testimony, that accused had the opportunity and the inclination to ravish her may be sufficient corroboration of direct and positive evidence by her that he did so.</p>

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

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

Original proceeding in mandamus by relator, as state treasurer, to compel respondent, as county treasurer, to pay oyer moneys in his hands collected for the state.

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

<p>• 1. Principal and Agent: Speculations oe Agent: Liability oe Brokers. If a corporation owning an elevator in this state puts an agent in ' charge of the elevator to buy grain and ship the same to market, and instructs the agent not to speculate in grain, and the agent payu to brokers the money of his principal to be used in gambling speculations, such brokers who take and so use the money with knowledge of the facts will be liable to the owner thereof.</p> <p>2. Set-Off. The claim of the corporation for money so wrongfully paid by the agent to the broker is in the nature of an action for money had and received and is a proper subject of set-off in an action on contract.</p>

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

<p>1. Corporations: Officers: Trust Relation. The president of a corporation, who is also a director and stockholder, is not only the agent of the corporation, hut is also in many respects a trustee for the stockholders as such.</p> <p>2. -: : — : Liability. It is the duty of such president and manager pf the corporation, who learns that the entire stock of the corporation can be sold at a certain favorable price, and disposes of his own stock accordingly, to inform other • stockholders, who he knows are anxious to dispose of their stock, and if he fails to do so, but purchases their stock at a less price and immediately sell» it at a profit, he will be liable to such stockholder for the profit so realized.</p> <p>3. -: -: -. In such case one who, with knowledge of all the conditions, joins with such president in purchasing the stock and realizing profit thereon will be also liable.</p> <p>4.Evidence indicated in the opinion is found sufficient to support the findings and judgment.</p>

<p>1. Municipal Corporations: Taxation. A city can tax for city purposes only property “within the city.” Property is taxed when the tax is levied, and not when it is valued by the assessor.</p> <p>2. -•: -. Taxes cannot be levied upon property for city purposes after it bas been detached from the city by the judgment of a court of competent jurisdiction.</p>

<p>Constitutional Law: Courts: Municipal Court. Chapter 182, Laws 1'915, establishing a municipal court for cities of the metropolitan class, is not unconstitutional.</p>

<p>1. Intoxicating Liquors: Civil Action: Liability. A licensed saloon-keeper who sells intoxicating liquor to another, which causes or contributes to his death, is liable to the wife and minor children of the deceased, constituting one family, for all of the damages to their means of support which they have sustained by reason of such sales.</p> <p>2. -:-: Verdict: Judgment. In an action against the saloon-keeper and his surety for damages, in which the jury has returned a verdict against both defendants for $9,000, the trial court has the power to render a judgment against the principal defendant for the full amount of the verdict, and may also render judgment against the surety for the sum of $6,000, which is the amount for which the surety company is liable on its bond.</p>

Original proceeding in mandamus to compel respondent, as election commissioner, to place the name of relator on the primary ballot as candidate for county commissioner.

<p>Error to tbe district court for Burt county: Willis G-. Sears, Judge.</p>

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

<p>1. Deeds: Delivery: Intent: Proof. The intention to deliver a deed must be shown by acts or words, or by both combined.</p> <p>2. -: -: -: Determination. “Delivery of a written instrument like a deed is largely a question of intent to be determined by the facts and circumstances of the case.” Brown v. Westerfleld, 47 Neb. 399.</p>

<p>Insurance: Premiums: Payment: Waiver. In an accident insurance policy, a provision requiring payment of the premium in advance may he waived by a course of dealings in which insured, through a series of renewals, paid each renewal premium long after it became due, having been thus induced to believe that payment in advance would not be required.</p>

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

<p>Assault: Assistant Prosecutor: Argument: Instructions. Record examined and found free from prejudicial error.</p>

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

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

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

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

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

<p>Rape: Sufficiency of Evidence. Evidence examined, its substance set out in tbe opinion, and held sufficient to sustain tbe verdict of the jury.</p>

<p>1. Replevin: Damages: Remittitur. In an action of replevin, where the jury has returned a verdict for the defendant, based on conflicting evidence, fixing an excessive value to the property in controversy, which excess the defendant offers to remit, it is ordinarily the duty of the court to order a remittitur and render a judgment on the verdict.</p> <p>2.--: Judgment oe Dismissal. If, however, the court, after setting aside the verdict, makes a finding that there was fraud in the bill of sale under which the- plaintiff claimed the right to the possession of the property, and that the parties should be left in the situation in which they were at the commencement of the action, it is error to dismiss the case, and thereby leave the plaintiff in possession of the property which he has obtained by means of the writ.</p>

<p>1. Carriers: Duties: Shipment of Live Stock. It is the duty of a common carrier to furnish safe and suitable cars to be used in. shipping animals, and for failure to do so the carrier is liable, if damages result by reason of such failure.</p> <p>2. -: Liability of Initial Carrier. Where a defective car is furnished by an initial carrier for the transportation of animals to a point beyond its own line, and injuries are sustained by the animals by reas'on of such car being out of repair, the initial carrier is liable for such damages, in the absence of any proof of negligence by the connecting carrier.</p>

<p>Master and Servant: Injury to Servant: Assumption of Risk. In an action to recover for personal injuries sustained prior to the passage of the workmen’s compensation act (Laws 1913, ch. 198), a woman employed to clean and scrub the floors of a café who was thoroughly familiar with the work, and had known for a long time that metal caps for beer bottles often fell and were found upon the café floor, assumed the risk of injury from kneeling upon one of such caps while in the performance of her work, and her employer is not liable for a personal injury caused thereby.</p>

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

<p>Appeal: Record: Unauthorized Exhibits. A judgment will not be reversed upon a stipulation of'attorneys as to the evidence, not approved by tbe district judge and embodied in a bill of exceptions.</p>

<p>Appeal from the district court for Cass county: James T. Begley, Judge.</p>

<p>Appeal from the district court for Cass county: James T. Begley, Judge.</p>

<p>1. Witnesses: Competency. A witness who has a direct legal interest in the result of the litigation is not incompetent under section 335 of the Code, if such interest is not adverse to the representative of the deceased.</p> <p>2. -: -. One who is jointly interested with the plaintiff in a claim being prosecuted against the estate of a deceased person is disqualified as a witness for such claimant. But the fact that both claims are for services rendered to the deceased will not disqualify them as witnesses for each other where they are upon separate and distinct transactions.</p> <p>3. Contracts: Action: Pleading and Proof. The allegation that services were rendered by plaintiff at the request of the deceased, “who promised and agreed to pay plaintiff for the same,” will admit evidence of either an express or implied promise to pay for the services.</p> <p>4. -: -: -. Such allegation is supported by prooi that the deceased promised to convey or devise certain property in payment for services rendered, but refused or neglected to perform such agreement.</p> <p>5. Evidence: Action fob Work and Labor: Measure of Recovery. In such case, if there is no express contract as to the value of the services to be rendered, the measure of the recovery is the actual value of the services. A witness may testify to the value of a part of such services with which he is familiar.</p>

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

<p>1. Sales: Implied Warranty. Where a manufacturer or dealer contracts to supply an article which he manufactures, or in which he deals, there is in such case an implied warranty that the article will be reasonably fit for the purpose to which it is to be applied.</p> <p>2. -: Warranty: Breach: Damages. In an action for damages for a breach of warranty as to the quality of personal property, where there is no rescission of the contract, the measure of damages is the difference between the value of the property as it actually is and what it would have been worth had it been as represented at the time the warranty was made.</p> <p>3. -: Action for Price: Defense: Evidence. The defendant having pleaded that the property in question was worthless, and having submitted proof tending to establish the fact alleged, the verdict of the jury so finding will be sustained.</p>

<p>1‘. Taxation: Mortgages of Realty: Where Taxed. Under tbe mortgage tax law (Laws 1911,' ch. 105), being sections 6349-6353, Rev. St. 1913, real estate mortgages are to be taxed only in the county where tbe land mortgaged is situated.</p> <p>2. -: .-: Interest in Real Estate. Under tbe tax law above referred to, a mortgage on real estate in this state, when recorded, becomes an interest in real estate for tbe purposes of assessment and taxation.</p> <p>3. -: Classification of Property: Mortgages. Tbe act mates a new legislative classification of property and permits tbe separate taxation of tbe mortgage interest apart from tbe equity of redemption held by tbe owner of tbe real estate.'</p> <p>4. -: Exemptions: Charitable Association. A fraternal beneficiary association, the Degree of Honor, is not such a charitable association that its funds are exempt from taxation by the laws of the state of Nebraska.</p> <p>5. -: Mutual Benefit Association. The property of mutual benefit associations organized under the laws of this state is taxable the same as the property of individuals, corporations, and other domestic associations. Boyal HigKlan&ers v. State, 77 Neb. 18.</p> <p>6. -: -: Mortgages. As the mortgage tax law has made mortgages an interest in real estate to be separately assessed and separately taxed when the mortgage is recorded, it is immaterial whether the money secured by the mortgage loan is from the mortuary fund or from the general fund.</p> <p>7. -: -:--. Where a beneficiary association, in this case the Degree of Honor, takes advantage of the recording act for the purpose of protecting its interest and procures its mortgage to be recorded, it ceases to be personal property to the extent that it is a part of a fund, and it becomes an interest in real estate taxable in the county where the real estate mortgaged is situate.</p> <p>8. -: Equity of Redemption. In such case the owner of real estate, being liable to pay the tax levied upon his equity, cannot complain so long as no greater burden is laid upon him than the payment of taxes on the excess of the value of the real estate above the mortgage interest.</p>

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

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

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

<p>Highways: Road Fund: Claims against Counties. The rule announced in City of Albion v. Boone County, 94 Neh. 494, and cases cited therein, held to control the questions presented by the defendant’s appeal and sustain the judgment in this case.</p>

<p>1. Infants: Summons: Service. Service of summons on an infant under the age of 14 years merely by leaving a copy at his usual place of residence, and without service upon mother, father, guardian, or the person having his care and custody, or with whom he lives if they can be found, is void and of no effect. Rev. St. 1913, séc. 7637.</p> <p>2.. Attorney and Client: Appearance: Presumption. An attorney at law being an officer of the court, there is a strong presumption that his appearance in an action is authorized, and the burden of proof is upon one who asserts the contrary to establish the fact by clear, convincing and satisfactory evidence.</p> <p>3. Parties: Indispensable Parties. Indispensable parties to a suit are those who not only have an interest in the subject matter of the controversy, but also have an interest of such a nature that a final decree cannot be made without affecting their interests, or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience.</p>

<p>Mortgages: Foreclosure: Burden oe Proof. In an action to foreclose a real estate mortgage, wben the allegations of the petition are denied, the burden is on plaintiff to make prima facie proof that no action at law has been instituted for the recovery of the debt. Jones v. Burtis, 57 Neb. 604.</p>

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

<p>1. Statutes: Amendment. The legislature, by amending an existing section covering the entire subject to which it relates, may incidentally change or modify other, statutes without violating the constitutional limitations in regard to amendments. Laws 1907, ch. 81; Const., art. Ill, sec. 11.</p> <p>2. -: Constitutionality: Local and Special Laws. In a suit to test the constitutionality of a legislative act, the presumption that an exception to general provisions is justified by facts within the knowledge of the lawmakers can only be overthrown by pleading and proof to the contrary, unless an unreasonable or arbitrary classification appears on the face of the act or is disclosed by facts of which the court may take judicial notice.</p>

<p>1. Abstracts of Title: Deed Records: Examination: Duty of Abstracters. Tbe provisions in section 5623, Rev. St. 1913, wbicb require tbe register of deeds to keep general grantor and grantee indexes of deeds and mortgages, and the provisions in section 5829, which make it the duty of the register of deeds, on receiving any conveyance or instrument affecting realty, to cause such conveyance or instrument to he entered upon a numerical index immediately after filing the same, are intended as checks, one upon the others, to insure accuracy in ascertaining the state of the records as to titles to. real estate, and an abstracter is not justified in relying solely upon any one to the exclusion of the others.</p> <p>2. -: Duty of Abstracter: Liability. Ordinary care and diligence on the part of an abstracter, in performing the work for which he has been employed, require him to avail himself of every facility at hand in order to furnish his client an accurate and complete abstract of the records. For a failure so to do he will be liable personally and upon his bond.</p> <p>3. -: -: -. Any person engaged in the business of compiling abstracts of title to real estate in this state, who furnishes an abstract to one by whom he is employed for that purpose, is chargeable with knowledge of the use to which such abstract will in all probability be devoted, and he thereby becomes liable under section 6277, Rev. St. 1913, for all damages sustained by reason of any defect in such abstract, not only to the party who employed him to make it, but also to all persons who may deal with such party in reliance upon the abstract so furnished.</p> <p>4. -: -: Limited Employment: Certificate. When an abstracter relies upon the numerical index alone to refer him to all entries upon the records affecting the title to the property which he is'examining, he does so at his peril, unless the one employing him agrees that in the making of such abstract he may rely upon said index alone for such information; and in such case his certificate to the abstract must clearly and unequivocally show his limited employment and investigation by reciting that such was the method pursued by him in making the abstract.</p>

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

<p>Carriers: Shipment op Live Stock. In the absence of a special contract, or special circumstances which take the case out of the general rule, a carrier of live stock is not bound to use extraordinary means to forward a shipment of stock. In such case the shipper will be held to have consented to the carriage of such stock by the regular trains of the carrier on its ordinary schedules.</p>

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

<p>1. Appeal in Equity: Trial de Novo: Conflicting Evidence. This court is required to try equity cases de novo without reference to the findings of the trial court; still when the important evidence in the case was taken before the trial court, and that court has construed the conflicting oral evidence of witnesses, and the record shows which witnesses must have been relied upon in determining doubtful facts from such conflicting evidence, this court will carefully consider the construction that the trial court must have given to such conflicting evidence.</p> <p>2. Evidence found to support the findings and decree of the trial court.</p>

<p>1. Waters: Diversion: Adjoining Landowners. A landowner may not rightfully collect and divert either waters of a watercourse or surface waters and discharge them onto the land of his neighbor to the latter’s damage.</p> <p>2. -: -: Injunction. It is the plaintiff’s right to occupy and use his land for such lawful purposes as he sees fit, and unincumbered by an overflow of surface water or water in a watercourse, accumulated, arrested and discharged in a body, by the owner or occupant of adjoining land; and for the protection of such right injunction will lie.</p>

<p>1. Appeal: Conflicting Evidence. “In a law action, where the evidence upon any disputed question of fact is sufficient to sustain a finding either way, the finding of the trial court thereon will he sustained on appeal.” Holmvig v. Dakota County, 90 Neb. 576.</p> <p>2. Statutes: Construction. “In construing an act of the legislature all reasonable doubts must be resolved in favor of its constitutionality.” State v. Standard Oil Co., 61 Neb. 28.</p> <p>3. Carriers: Regulation. “Section 4, art. XI of the Constitution, does not prohibit the legislature from increasing the common law liability of common carriers.” Cram v. Chicago B. & Q. R. Co., 84 Neb. 607.</p> <p>4. -: “Speed Statute:” Constitutionality: Election of Remedies. Sections 6018, 6019, Rev. St. 1913, known as the “speed statute,” do not limit the liability of railroads as common carriers. This statute affords the shipper of live stock a statutory remedy, in addition to the common law remedy, by which he may recover liquidated damages sustained by reason of the unreasonable delay defined by the act, in the transportation of live stock' from the initial point of shipment to the place of feeding or destination. This statute is not repugnant to section 4, art. XI of the Constitution. The common law remedy is not abrogated by the “speed statute.” The shipper has an election of remedies; he may still bring his action under the common law, and recover for the actual damages sustained.</p> <p>5. -: Claims: Attorney’s Fees: Statutory Provision: Constitutionality. The due process of law and the equal protection of the law, guaranteed by the fourteenth amendment to the Constitution of the United States, are not denied to common carriers by section 6063, Rev. St. 1913, which provides for the recovery of a reasonable attorney’s fee to be fixed by the court, in afitions on claims for loss or damage to property in any manner, or overcharge for freight for which any common carrier in the state may be liable, not adjusted and paid within the time limited by statute, and when the amount recovered exceeds the amount tendered by the carrier. This statute only applies to claims for loss or damage to property received by the carrier for shipment as freight, and for overcharge for freight. This statute being applicable to all persons and corporations engaged in the business of common carriers in the state, and applying only to a limited kind of claims admitting of special legislative treatment, is not repugnant to the due process and equal protection provisions of the fourteenth amendment.</p> <p>6. -: -: -. Reasonable attorney’s fees are properly assessed under section 6063, Rev. St. 1913, when the plaintiff is represented by an attorney of record.</p>

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

<p>1. Executors and Administrators: Void Judgment: Relief in Equity. One whose individual property and the partnership property in which he has an interest is seized under an execution issued on a void judgment against him in his capacity as the administrator of the estate of a deceased person may maintain a suit in equity to enjoin the sheriff, and those who obtained the judgment, from attempting to subject such property to the satisfaction of such void judgment.</p> <p>2. -: -: -: Sufficiency of Petition. The substance of plaintiff’s petition set out in the opinion, and field sufficient to entitle him to equitable relief.</p>

<p>Executors and Administrators: Appeal: Bond. Where a judgment has been rendered by a county court against the administrator of the estate of a deceased person in his representative capacity, the administrator may appeal to the district court without an additional bond.</p>

<p>Error to the district court for Clay county: Leslie G. Hiurd, Judge.</p>

<p>1. Venue: Action against Sureties. A surety upon a saloon-keeper’s bond has such an interest in an action to recover civil damages brought against the saloon-keeper and his surety that an action may be brought against it in any county where it may be found. Kramer v. Bankers Surety Co., 90 Neb. 301.</p> <p>2. -: Action against Foreign Corporations. A foreign corporation is “found,” within the meaning of section 7619, Rev. St. 1913, in any county in which proper service can be had. Council Bluffs Canning Co. v. Omaha Tinware Co., 49 Neb. 537.</p> <p>3. Process: Summons: Service on Insurance Company. In an action against an incorporated insurance company in a county where there is an agency, the service may be upon the chief officer of such agency. Rev. St. 1913, sec. 7635.</p> <p>4. Intoxicating Liquors: Liability oe Seller. “One selling intoxicating liquor is liable, not only for the actual results of the sale, but for all damages growing out of the disqualification resulting from or . contributed to by such sale, without reference tó the time through which such disqualification may continue.” Jessen v. Willhité, 74 Neb. 608.</p> <p>5. -: Liability oe Seller and Sureties. A saloon-keeper and the sureties upon his bond are liable for the loss of support sustained by a widow and children of a decedent whose death was contributed to by intoxicating liquors bought from the saloon-keeper or drank by the deceased. Schiek v. Sanders, 53 Neb. 664.</p> <p>6. -: -. Licensed liquor dealers in this state are liable in damages for all the legitimate and proximate consequences of their traffic, and, if they have induced drunkenness in a previously sober and industrious man who afterwards dies from exposure while in a condition of intoxication even after they have ceased to furnish him with liquors, they and their sureties may be liable to his widow and children for the damages they have suffered. Stahnka v. Kreitle, 66 Neb. 829.</p> <p>7. Evidence: Declarations: Admissibility. Spontaneous and unpremeditated declarations as to pain or suffering made when the circumstances show the absence of design or motive on the part of the person making them are competent evidence of physical condition.</p> <p>8. Evidence examined, and held to support the verdict.</p>

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

<p>Carriers: Injury to Passenger: Defense. In a suit for damages for personal injuries, an act of God is no defense if defendant’s negligence was a concurrent cause of plaintiff’s injuries.</p>

<p>1. Railroads: Death oe Employee: Liability: Negligence. Where a railroad company’s rules, of which a section-foreman has notice, require him on approaching a sharp curve through a deep cut on a handcar to send a man ahead to look for a train, the mere failure of trainmen to give warning of their approach, before the presence of section-men on the track is discoverable, is not negligence, in the absence of a statute or a rule requiring them to do so, since the trainmen may assume, until the contrary appears, that section-men will obey reasonable, known rules promulgated for the safety of themselves and others.</p> <p>2. Negligence: Railroads: Failure to Blow Whistle. Failure of a train crew to blow the whistle on approaching a railroad bridge at an undergrade roadway is not negligence, as a matter of law, in absence of a statute or a rule imposing such a duty.</p>

<p>Towns: Power to Create. In a county under township organization the hoard of supervisors may create new towns. Rev. St. 1913, secs. 995, 1054, 1068.</p>

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

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

<p>1. Deeds: Conveyance op Homestead by Surviving Spouse. An unmarried man is competent to convey title to real estate which he occupies, although it had been the homestead of himself and wife before her death.</p> <p>2. -: Escrow: Delivery apter Death op Grantor. A deed made pursuant to a contract that it shall be deposited as an escrow to be delivered to the grantee after the death of the grantor, and that the grantor may take possession of the deed, if the grantee fails to perform those things provided in the contract, and which constitute a valuable consideration for the deed on her part, becomes a valid conveyance upon the death of the grantor and performance of the contract on the part of the grantee.</p>

<p>1. Negligence: Violation of Statute: Liability. The violation of a statute enacted for the protection of persons aiid their property constitutes negligence per se, and the violator may be required to respond in damages resultant, even though such statute be penal in its nature, and silent as to liability for damages resulting from its violation.</p> <p>2. -: Motor Vehicles: Operation by Minor: Liability of Owner. Section 3048, Rev. St. 1913, imposes upon owners, dealers in, and manufacturers of motor vehicles a public duty to refrain from permitting a person under 16 years of age, or an intoxicated person, to operate a motor vehicle; and when an owner of an automobile permits his minor, child, under the age of 16 years, to operate his automobile, he is guilty of negligence, and is liable therefor, when the other elements of actionable negligence are present.</p> <p>3. -: -: -: Permission of Owner: Evidence. Evidence tending to prove that the defendant’s minor son had frequently and for a long period of time previous to the accident, and after the accident, operated the defendant’s automobile upon the streets of the city of Omaha, with the knowledge of and by permission of the defendant, is competent as proof that at the time of the accident the defendant’s said minor son was operating such automobile by permission of the defendant.</p>

<p>Deeds: Deeds as Mortgages: Suit to Redeem: Sueeiciency- oe ''Petition. When, in an action to have two deeds, simultaneously executed by the plaintiff, running to two different grantees, who are made defendants, decreed to be mortgages, the petition contains allegations that the execution and delivery of the deeds were induced by the defendants working in concert, it will be held good against a demurrer alleging misjoinder of parties, and that several causes of action are improperly joined.</p>

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

<p>Counties: Boundaries: Writ of Ouster: Sufficiency of Answer. Pleadings examined, the substance of the answer set out in the opinion, and held to be sufficient to resist a general demurrer.</p>

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

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

<p>Appeal from the district court for Otoe county: James T.. Begley, Judge.</p>

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

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

<p>Appeal from the district court for Otoe county: James T. Begley, Judge.</p>

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

<p>1. Corporations: Liability fob Negligence. Local corporations created by request or consent of the persons residing in the territory incorporated and principally for their benefit, although they are clothed with powers of a public nature, are liable fbr damages caused by their negligence.</p> <p>2. Drainage Districts: Liability fob Negligence. A drainage district organized and acting under article V, ch. 19, Rev. St. 1913, is liable for damages caused by its negligence in the construction of its works.</p> <p>3. Eminent Domain. Condemnation by right of eminent domain is. not allowed except so far as it is necessary for the proper construction and use of the improvement for which.it is taken.</p> <p>4. -: Damages. If the application for condemnation specifies the desired taking and use of certain real estate and shows that it is necessary for the improvement contemplated, all damages caused by such taking properly exercised will be included in the damages allowed in such proceedings, which will be a bar to any further claims for such damage.</p> <p>5. -: Damages from Negligent Construction. In such case damages caused by the negligent construction of the improvement are not contemplated in the condemnation proceedings and are not barred thereby.</p> <p>6. -: -: Accrual of Right of Action. Damages caused unnecessarily by negligence and improper construction of the improvement cannot be anticipated, and a right of action accrues therefor when the damage occurs. •</p> <p>7. Appeal: Pleading: Irrelevant Matter. If a petition states one cause of action for damages to real estate, and also contains allegations as to other damages to the same real estate of a similar nature which are not sufficient of themselves to justify a recovery thereon, overruling a motion to require the plaintiff to separately state and number his causes of action will not be sufficient ground of reversal, when no motion is made to strike out such allegations, and evidence of both injuries to the real estate is received without objection on that ground. A plaintiff cannot be compelled to state a cause of action which he has failed to plead.</p> <p>8. -: Instruction as to Measure of Damages: Harmless Error. An instruction upon the measure of damages which follows and properly reflects the evidence admitted without objection will not be held so prejudicially erroneous as to require a reversal.</p> <p>9. -: Misconduct of Jury: Failure to Object. Alleged misconduct of the jury must be called to the attention of the trial court at the earliest opportunity. A party who sees the matters supposed to be misconduct and makes no complaint until after the verdict is not entitled to a reversal because of such supposed misconduct. He cannot so speculate upon his chance of a favorable verdict.</p>

<p>1. Wills: Execution: Competency of Witness. It will not be held that a will was improperly executed simply because one of the witnesses to its execution was less than 14 years of age. If otherwise competent, such witness may testify concerning the execution of a will the same as to any other fact.</p> <p>2: -: Validity: Testamentary Capacity. Where the testatrix, although she is aged, knows the amount and character of her property and who are naturally the objects of her bounty, and has a full understanding of the persons and purposes to whom she makes devises and bequests, she will be regarded as possessing testamentary capacity, and being competent to máke a will.</p> <p>3. -: -: Undue Influence: Burden of Proof. The burden is upon the contestants to establish undue influence exercised upon the testatrix, and in so doing it is not enough to show that the circumstances attending the execution of the will are consistent with the hypothesis that it may have been obtained by undue influence; it must be shown that such circumstances are inconsistent with a contrary hypothesis.</p>