V
i
THi: OMAHA 1UILY Hl.K: TUESDAY. DKCEMBEK 26, 1905.
SUPREME COURT SYLLABI
1 i
In the supreme court of the state . f Ne.
braHa the folio I m opinions w'rt tiled
Clclsnd against Amier.;. i. Krror
from On rehearing tonne-.- juiIk-
ment vncsted. JwiiKtnent ! district court
reversed, in dismissed aj to Nebrassa
itetaii i, umber Dealers' association and
li; ,iilu i.ji r.e,, tritii in to oeleji.Iants,
Clelanrt and Carroll, y.-deivl.'k. J.
1. 'liii- ii-l.t "t ar-tlnn ivM bv section
11, chapter 1. Complied Htm wes, 'o.hlwy's
Annotated Matulrs, 1-..3, 11, in, is for In
jur) in Dusinea-i. c:npui nient ir
enj
mj n unsiness, crnpint nielli or prop- 1 iiici ciiij' imoj
rty," and tinder the national bankruptcy , method permissible before the s
i.u passes to tue assiKiico 111 buriKiui.tcy. ! enacted. Sehnlder agonist Pat
i-itct Btai ..,.., u..,. t . 1 Neb., tisi), followed and approve!
.,SH. Ftale astlnst State Journal Com- ,.. K,.i..r t u.,n
psny. Ongtnal. Demurrer iimainHd, case
uieuii?wu. CViWCK, J.
L The unaiitnortsed use of (he literary
producliun of anltner ftirnlsnea no ground
lor the recovery oi. .imnaaes txcvpi
ihrmign the f.-deral copyright Una. All
persona are nt liberty 10 print, publish
and sell the literary productions of others,
unless they are protected by a compliance
with the act of congress for tpal purpose.
it Merely reposing confidence in sn
ot ner does not of itself create a. trust,
nor true a trustee of one In woom confi
dence nan been reposed. To create a
iMiucinry relation hy contract It is neces
sary that the cOhsent of the trustee to
assume that relation he expressed In the
contract, or be derived therefrom oy nec
essary Implication.
.1. The measure of (limn hps for the un
authorized use of tile, property of snothcr trial
requires authority In writing. those dealing
win him are charged witn notice of tnai
la' t and 01 any limitation or restriction on
the auinorliy "t tiie agent contained lu
such written authority, and a contract bt
oml the scope 01 sunt uutliority, as thus
Hunted or restricted, is not binning on the
pi Inetpal.
4. . writing 'hat neither names the pat
ties to a contract p.,, oyscnlies theru In
such a way tnst they may be toentined. is
not nurh'-if-nt as & note or memorandum
tinder the statute of frauds.
lf'il. HoufeK iiam.-t Held A Co. Error
from Coifax AfHrmed. Olham. C Liia
lon No. 1.
1. Herord of n certitirate pro Id'd for
In section 'J3". Cobliey s Aiiti'it.it'U Stat
utes, is not tne only evidence hy winch
the existence of a partnership may be es
tablished. NotwIthstandlnK that Matutc.
a partnership may ie piovea oy any
staiiiio was
atlerDon, M
ed
1110. Kidder against Jdaynard. l-.rror
from Dodge. Alllrm'd. Albeit, Divis
ion No. I.
1. A new trial will not be urant'-d
merely to allow a patty to offer newiy
discovered evidence on an Issue already
established In Ills favor, or on an imma
f rial Issue.
1412. Douglas against Smith. Krror
from Richardson. Affirmed. Ames, C
Division No. 1.
1. The detense of res Judicata 1 only
available as to matters actually 111 Issue
and determined In the former suit.
L A verdict upon conflicting evidence
will not be disturbed except lor epeeiltc
error occurring at the trial.
3. The statement by a juror in the Jury
room of his personal knowleilk-e of a tact
not In dispute and not material to the
Ivsue is not misconduct requiring a new
the nifuwd
In coimet Uort
lug un the
ami given su
fairly entitles
It may be su
dmibl when,
but the con
drawn from
when, after
hy a bailee thereof Is not the value that
may be produced "hy the labor and Invest
ment of the bailee combined with such
use of the property, but Is the value of
inc use, Itseif and any damage that ma.
be done to the property In so using It. or
If the use amounts to a conversi 111, then
ttv measure of damages will be the valua
of the property.
4. If the defendant printed and manu
factured to sell for Its own benefit vol
umes of the reports of Ihe supreme court
of the state, containing mailer prepared
by the state and not protected by copy
ilKhf. nuil In so, .doing unlawfully used
manuscripts and other property entrusted
10 the care of the defendant to enable It
10 perform lta contracts to manufacture
specified volumes for the state, this would
not give the state title to books so un
lawfully produced so as to enable 11. by
Injunction, to prevent the defendant from
disposing of the bonks, or entitle Ihe state
to nn accounting of the proceeds ut such
sales.
I.l;i4. Preston against Morsmun. Ap
peal, Douglas. Affirmed. Jackson, C. Di-
IMOtl No. J.
1. A mortgage may. by agreement, fix
the rights of his assignee of the notes
secured by a mortgage to the mortgage
security, arid such an agreement may ba
Implied' from th circumstances of tha
transfer. '.
2. A decree of a court vested with Juris
diction over the subject mailer and the
persona In Interest, fixing the status of
a series of notes secured by a single mort
gage. Is binding on one who. In subse
quent action, attempts to avoid tho effect
of the decree, where it appears that the
transfer of the note Involved In the latter
proceeding was fraudulent as against the
holders of the other notes.
i:'. North & Co. against Angelo. Er
ror. Lancaster. Reversed and remanded.
Duffle, C. Division No. 2. BeUgwick, J.,
dissents.
A case appealed to the district court
must le tried In that court upon me issuea
presented In the lower court.
12915. In re Estate of Nelson, deceased.
I .arson against Thorson. Error, Saunders.
Reversed. Detton, C. Division No. 1.
1. Where a testator, though aged and ln-
tirm, understands the nature of the act
lie Is performing, knows and can retain in
mind the amount and character of hla
property and who are or naturally should
lie the objects of his bounty, and has a
full nmlerstandina- of the persons or Instl-
' tutions to whom and the purposes for
which his devises and bequests are made
he Is competent to make a will.
2. Where a verdict and Judgment is the
only one that could be supported under
the evidence, errors In the rulings of the
court are without prejudice and will not be
crtnsMered.
IMS. New Omaha Thompson-Houston
Klei trlc Light Company against HomDohi
Error, Douglas. Motion for rehearing de-
riled, llolcomn, C. J.
1. Whether It was the duty of the do
fendant due to the plaintiff to insulate the
wires described and complained of in the
pel It Ion, or whether because of the nature
of the work, the contract of employment
or other facts and circumstances the fluty
to make Inspection and discover defects
devolved upon the plaintiff are under the
issues and the evidence held to be ques
tions properly submitted to the Jury for
its determination.
i. An open and obvious defect la one
which Is manifest to the sense of observa
tion, open and readily discernible, whether
It arises from inn nature 01 tne ousiness,
the particular manner In which it is con
ducted, or the use of defective and un
safe amllances
a. Whether tho defect complained of Is
open and obvious Is held to be a question
or ract tor tne itiry.
J. Applying the rule of the law of the
case It is held: "That whether or hot due
care on the lineman's part required that
he see and avoid contact with the exposed
splices was properly left to the Jury."
13978. Clarke against Tukey I-nnrt Com
pany. Error from Douglas. Affirmed. Old
niim, C. Division No. 1.
1. A purely specious claim of ownership
will not oust the Jurisdiction of a Justice of
1 lie peace In an action of forcible entry and
deluiner.
2. When a tenant from month to month
makes default In the payment of the rent
reserved and holds over after such default,
hla occupancy is that of tenant at suffer
ance, and such tenancy must be terminated
by the landlord by service of the statutory
notice of three days to quit the possession,
3. The statute of limitations against an
action of forcible entry and detainer against
a tenant holding at sufferance begins to
run against the landlord on the termination
of the tenancy.
4. Weatherfleld against 1'nlon Pacillc R.
R. Co.. Neb.. int N. W 13, examined and
distinguished.
139K7. Hunt ugnlnst Van Rurg. Error
from ijtncBstcr. Affirmed. Ietton, C. Di
vision No. 1.
I. Where a case is tried upon an agreed
stipulation of facts and oral and written
evidence, It Is proper for the Jury to con
sider all the evidence, even though part of
It may be inconsistent with the statement
of facts.
2. In an action of a bona fide purchaser
of a negotiable Instrument for value before
maturity without notice where the defense
. la fraud In the procurement of the paper,
evidence of similar frauds committed by
the agent of the payee about the same time
la Inadtnlsaahle. Monitor Plow Works
against Horn, 33 Neb., 747.
14017. Hnpiier agalnat Douglas County. Af
firmed. Oldham, C. Division No. 1.
1. A county Is not liable in damages to an
Individual landholder for the negligent di-
version of surface water in the Improve
ment and construction of Its public high
ways. A county is not liable In damages for
the negligent acts of its officers, unless
made so by legislative enactment.
Mi'lK. Hopper against Douglas County. Er
ror from Douglas. Affirmed. Oldham, C.
Division No. 1.
140:i;. Verlives against Gage County. Er
ror from Oage. Oldham. (.'. Division No. 1.
Reversed and remanded.
The burden of sustaining the affirmative
of an Issue Involved In an action does not
shift during the progress of the trial, but
la upon the party alleging the facta consti
tuting the lusue. and remains there till the
end. Rupp against Karpy County, Neb. as,
N. W. 104:'; Neb. 1f2, N. W. li:1. followed
and approved.
11.9 1 hewing- against Westergreti. Error
Horn orK. Affirmed. Jackson, C. Divis
ion No. I.
1. I uiing the pendency of an uppeal from
a Judgment of the district court, confirm
ing a judicial sale, the supieme court is
vested with Jurisdiction to entertain an ap.
plication to redeem and to determine the
amount of redemption money required for
. 1 hat purpose, and where such Jurisdiction
is exercised Ihe adjudication of the aiiial-
lute court incident thereto becomes res
. uuicata.
rVi. I.ogiiry against Fillmore County.
Error, from Fillmore. Affirmed. Let ton,
. Division No. 1.
1 11 s'ler leave is laKrn to 11a an
tmtnded petition another petition contain
ing no new allegations of fact and aub
aiantially tne same as the former petition
Is filed, it is proper practice to strike it
rrom the nies.
Havens against Robertson. Error,
trom DoL.glus Reversed and remanded
'idliani. '. Division No. 1.
' An unexecuted agreement to arbitrate
will not be recognised by the courts of this
ut-.
..11 s not error to refuse to suhmft a
dtne pleadco. which is not supported by
com:leht evidence.
! Action of ihe irUl court In giving In
structions examined and held prejudicial.
3'.'M Frshm asalnst Metcalf. Appeal.
from Webster. Afriimed. Albert. C. Di
vision No. L
I. In order to conclude a bludlng con
tract by Ihe acceptance 0 an nnVr, the
ofier tuusi be accepted substantially as
made. "
The authority of an agent for the sals
of real ratal. If not in writing, ia void
under the s.aiuta of frauds.
I Waere the act of aa agot Is ona which
14176. Tltterington against Stale. Error
from Lincoln. Reversed and ronundinl,
Rarncs, J.
1. An Instruction which inrorms tpe jury
that If the.y believe that a witness has
willfully and corruptly testliled talsely as
to any material fait, they are at liberty
to reject all or any portion of the testi
mony of such witness, correctly states tne
rule to le applied In such cases.
I. Where, in a proper case, sucn an in
struction Is tendered . It Is error to, the
court to refuse to give It because It does
not contain the qualifying words, unless
corroborated by oinor cojipetent rooi."
a. The rule announced 111 uenney t.gamai
Btout, MJ Neb., 1X1, Insofar a II coniticts
with this opinion is disapproved.
14182. Powers Rg.'tliist state, f.rror rrom
Hamilton. Reversed and remanded. Dunlc,
C. Division No. 2.
1. Misconduct of the county attorney
In the argument of a case will work u
ters Original Writ allowed. Redgwick,
J Raines. J . dissenting scpaiateiy.
1. lie iraisiatur Hiniot spponil counly
officers, nor by an act solely lor that pur
pose extend the terms of such officers.
2. Chapter 47 of the laws of IS l uncon
stitutional and void.
1477. ttate ex lei Welch against OJTlll.
t'tiaiiial Writ allowed. tsedgwlck. J.
Rat nes, J . dissents.
14U3U. Ooble sailnsl Breiinemajt Appeal
from Adams. AtUiuied. Letion, Divis
ion No. 1.
1. Where a mortgage lien exists upon a
..r .,11..,..! mm a l,tnl .ted the
inwilgage' debt Is paid by the prm-eeds acler due W'
arising from a Iorii secured by a new
moitaage on the same land, the interest
of the claimant Ining at all times less
than J. In value, and the homestead
sold to a third jwrson while Uius encum
bered, the transcript ot a Judainenl tiled
while Ihe Hist moitKaae was In force
does not become a lien uimn the premises.
France against Hehnbaum, 1W. N. W., 7i,
followed.
2. The return of an officer ns to s Tvlce
of process may be Impeached by extrinsic
evidence.
14wB. Kchlcketlantx against Rlncker. Er
ror from Howard. Reversed, lctton, C.
Division No. 1.
1. A parol agreement between a land
lord and a tenant whose term was about
to expire that the tenant should -emsln
In possession for four months longer, fol
lowed by the tenant retaining possession
after his first term begun had ended and
the four months' lerm begun, even though
tho amount of rent to be paid was not
agreed upon, is a valid lease for four
mourns, and the law Implies an agree
ment to pay a reasonable rent for Ihe
use and occupation of the premises.
2. A notice served by the landlord after
the making of such agreement notifying
the tenant that If he field over his first
term he would be taken as occupying for
another year at an Increased rent held
Inoperative to set aside such parol lease.
14034. Rogers against City of Omaha.
Error from Douglas. Reversed. Ainee, C.
Division No. 1.
1. Cnder the Omaha charter of lM
a cause of action upon an award of dam
ages to one whose property was taken
for a public street old not accure until
the lapse of a time reasonably sufficient
fur the creation of a special fund for thu
piivment of such damages.
14036. Omaha Feed Company against
Rushfoith. Error from Merrick. Affirmed.
Duffle, C. Division No. 2.
1. if one party to an agreement ot sale
for the purpose of obtaining credit makes
false representations relating to the
amount of his assets, or tho condition of
his financial affairs, ami tho oilier party,
relying thereon, enters Into the ugreement
the guilt of th4 accused sufficient to acquit
Mm, which, w Shout ich proof, would not
have existed I
a. Evidence Jpf good 1 baractor is always
admlssable aj a circumstance favorable to
be considered by the Jury
Kith the other evidence bear-
leation of guilt or Innocence,
weight as the Jury believe It
to. and when so considered
inn 10 cicaie a i'-aviifli'ia i
It hoot It. none would exist. '
ision of the Jury ta to 1 j
e whole of the e idence, and
vlng evidence of good chai -
K.ht. the proof still shows the
TH
versal where It is reasonably apparent j to extend credit on the strength of such
that such misconduct worked prejudice 10
the defendant.
2. A witness was present and heard
statements made by the defendant, which
the stale offered as admissions of gum.
These admissions Ihe court relused to al
low In evidence for the reason that they
appeared to be made while under tear of
bodily harm. The witness referred to tes
tified at the preliminary hearing ejid there
stated the admission of the defendant as
he understood and remembered It. in a pri
vate conversation between the defendant
and the witness previous to the trial In
tne district court, tne ueten.jani uMpmeu
the correctness of the testimony ot the
witness given at the preliminary xanilna
tlon and claimed tnal he had incorrectly
quoted his language. Tho witness replied
that his claimed admission was in the
lunguae given by him at the preliminary
healing, at the same time repeating it.
Tills conversation was admitted in evi
dence by the court as tending to show an
admission of guilt on the part of tne de
fendant. Held; error,
a. The defendant was on trial for adul
tery charged to have been committed with
renresentatlons. he may. on discovering
the fraud, repudiate the agreement and re
uim) to cuiry it into ellect.
2. Where a party repudiates an agree
merit to extend credit to another because
of false and fraudulent representations
made in obtulnlng.lt and the agreement
Is then so changed as to eliminate the
provision for creull and to require cash on
delivery, the second agreement Is not a
mere modification of the first, but a new
and Independent agreement and no new
or further consideration Is necessary tu
support It.
3. Where a party to a cortract Inserts a
provision exempting him from fulfilling be
cause of a condition which may after
ward arise, he must, when sued for a
bleach of the contract, plead In defense
the existence of the condition In order to
have the advantage thereof.
MUM. Butler against Hruce ft Co. Er
ror, Ro-x Hutte. Affirmed. Ames, C. Di
vision No. 1.
1. When a vendee of personal property
assumes and agrees to puy aa the pur
chase price, or a part ot It, an Indebted
ness 01 the vendor to a inna person, ine
a married woman who was called by the I creditor may enforce the obligation b a
state as a witness. W hen interrogated re
garding her relations with the defendant
she claimed her privilege and refused to
suit at law against both parties to the
agreement.
1. A tiidirment for the plaintiff ren-
testlfy. The county attorney. In his ar- ( tiered in the district court on appeal is
gument to tho Jury, commented upon her 1 not erroneous because it includes Interest
conduct In this respect, asserting that It
was proof of her guilt, item, unuer me
circumstances of the case, that this con
stituted prejudicial error.
4. It is error for the Judge to absent
himself from the court room out of the
sight and hearing of the parlies during
the argument of a case unless by consent
and agreement of the parties interested,
which may work a reversal of the Judg
ment rendered in the action.
141t4. Lowe against Prospect Hill Ceme
tery Association. Appeal. Douglas. Re
versed and dismissed. Holcomb. C. J.
1. The district court In the exercise of
Its general equity iiowers Is authorized
and possesses Jurisdiction to modify or va
cate an order for a perpetual Injunction
which It has allowed after the term at
which rendered and at any time when the
cause upon which it was granted hoa been
removed and the tlanger of InvadUig the
rights of the plalnniT no longer exist.
a. The exercise of such Jurisdiction does
not rest on. the statutory provisions for
modifying or vacating Judgments or finul
orders in the same court after the term
at which such Judgment or final order was
rendered.
upon the claim sued upon during the time
of the pendency of the action In that court,
although the Judgment Is thereby made to
exceed In amount the Jurisdiction of the
court from which the appeal was taken.
14041. leese against Courier Priming and
Publishing Co. Error. Luicastcr. Affirmed.
Jackson, C. Division No. 2. '
The taking of fees by a Justice of the
peace for services performed by him and
for which no fee Is allowable Is actionable
under tho provisions of section 34, chap
ter xxvili. Compiled Statutes, 1903.
14113. Thurston County against Mcln
tyre. Error, Thunlon. AfHrmed. Oldham,
C. Division No. 1.
An action to recover a money judgment
upon a county warrant may be maintained
when the money lor the payment of such
warrant has been collected and wrongfully
applied by- the county authorities to tho
payment of v othvi claims agatnat thu
county. Ayres ugnlnst County of Thurston,
s.. Neb., So, followed and approved.
14045. Stevens a-ilnst Naylor. Appeal,
Custer. Reversed and remanded. Ames,
C. Division No. 1
A notice of a Judicial sale of lands must
be published for at least thirty days next
accused to f- guilty beyond a reasonable
doubt, such vldence of good character Is
unavailing J
b. Noii-ni nctlon alone on the question
of evldence'of good character. In the ab
sence of a proffered Instruction correctly
force ' stating the law, Is not reversible error.
4. t ertain requester instructions examined
and the refusal to give the same held not
prejudicial t'ror.
5. Errors assigned but not argued will be
considered ns waived.
14292. Knights of the Maccabees nitalnst
Searle. Appeal from Lancaster. Affirmed.
Sedgwick, J.
1. I'nder s.ctlon SMS, Annotutd Stat
utes, IH03, the auditor is not authorised
to Issue a certificate of organisation to a
society whose name or title so resembles
a title already In use In the state ns to
have a tendency to mislead the public.
2. If a name or title of a beneficiary
Insurance company contains a descriptive
word by which the society Is generally
known to the public, to Incorporate that
word as the charactei Istlc word In the
name of a proposed new company m ist be
held to have a tendency to mislead the
public.
14323. Barber agnlnst Stat. Error from
Lancaster. Reversed. Sedgwick, j.
1. Under the law prior to the act of
ISH'l the district court of the county of the
conviction and sentence of death of . per
son charged with a capital off-nse had
Jurisdiction, Independent of statute, to In
vestigate the question of the sanity of
such convict; that Jurisdiction has by the
statute been transferred to the Judge of
the district court of the county in whlcVt
the penitentiary Is situated.
2. I'nder section 6 of chapter bio. Laws
of 19ol, It Is the duty of the warden If a
convict confined In the penitentiary under
sentence of death appears to be insane,
to give notice thereof to a Judge of tho
district court of the county in which the
penltentlsry Is situated, and If such no
tice is given a Jury must be summoned
"to Inquire into such Insanity."
3. The Jurisdiction of the Judge of the
district court of Ijincaster county to In
quire as to the sanity of a convict con
fined in the penitontiarv under sentence
of death does not dep'nd upon the giv
ing of the notice by the warden. If It Is
alleged In a proper application 'o the
judge, under ojth. that the convict Is in
sane and that the warden unjustifiably
refuses to give the statutory notice, It
Is the duty of the Judge to make such In
vestigation ns will satisfy him w nether
there are such appearances of l.isanlty
as will Justify summoning a jury to try
the question.
4. If the Judge upon such investigation
is satisfied that the warden was justified
in his refusal to give Hie notice, and that
there are no substantial appearances of
insanity the application will be dis
missed. 5. If, upon investigation of the applica
tion, the Judge finds that the convict ap
pears to be insane, a Jury should be em
paneled to try the question of insanity.
MllJ. Slate ex re. Mickey awnlnst
Reneau. Original. Writ denied. Sedg
wick, J.
1. If a statute Is incomplete so that It
can not be rnmplbd with without addi
tional provisions that are not Indicated
by the act Itself, the court enn not sup
ply such defects so as to give validity to
the act.
2. Chapter 176 of the laws of l!Wi, which
purports to prescribe the method of se
lecting Juries in counties having l"ss than
30.0110 inhabitants. Is invalid because Its
requirements can not be compiled with.
The method provided Is Impossible of execution.
TIE
IT
1L
IUI
mm
FARRfl
i. Where facta have arisen since a final j preceding the drfte of sale and must ap
order was entered allowing a perpetual
Injunction, of such a nature that It is
clear the decree ought not to be executed,
relief against It may be given In a sum
mary proceeding on motion to modify or
vacate the same provided the fads ate
undisputed.
a. Whether proceedings of a summary
character are permissible for such p'.irose
or whether moro formal proceedings are
not required when there la substantial
controversy regarding the facts on which
tho proposed action is to be predicated,
quaere.
. A Judgment on the merits In the trial of
a civil action constitutes an effective bar
and estoppel In a subsequent action upon
the same claim or demand not only as to
every matter offered and received to sus
tain or defeat the claim or demand, but
also as to any other admissible matter
which might have been offered for -such
purpose.
a. When a question In controversy has
been once finally decided. It becomes the
law ot the case and Is binding on the par
ties and those claiming under or through
them in all subsequent stages of the liti
gation. 4. Where In an action In which the ob
ject Is to enjoin the defendant from using
a certain tract of land for the interment
of dead bodies one of the vital Issues is
whether such land is a part of an estab
lished cemetery nnd If It Is In such action de
termined that It is not, a resolution after
wards passed by the city council in which
such grounds are situated to the effect that
such disputed ground ia a part of the cem
etery and is not therefore taxable, will not
affect the question as litigated and detenu-
lned and will afford no sufficient basis for
modification or vacation of an order for
a perpetual injunction restraining the de
fendants from the use of such ground for
burial purposes.
5. Evidence examined' anti it is round that
there has been no material change since
the entry of the final order allowing a per
petual injunction in respect of the wells on
the premises of the plaintiffs, and tho
threatened danger to them because of the
pollution of the underground waters from
which such wells are supplied by reason of
the decomposition of dead bodies if Interred
III the trad of land involved in the con
troversy, and thai no such change has
arisen since the rendition of the original
decree in the action in respect of such mat
ters as would justiry the modification or
vacation of the order of Injunction therein
allowed.
6. A question tried and determined in the
action in which a jierpetual injunction is al
lowed cun not be relltlgated on a motion to
modify or vacate the order allowing such
injunction.
7. The cause upon which the order alios-.
Ing a perpetual injunction against thu use
01 a tract of land for burial purposes Is
not removed and the threatened invasion
of the plaintiff a rights is not obviated by
an ordinance of the city within which such
tract of land is located which authorizes
the health commissioner in hla discretion
to provide rules and grant permtts for
the burial of dead bodies in a different man.
ner tiian that ordinarily obtaining by cov
ering the bottom and walls of the grave
with a coat of mortar so as to render ths
same Impervious to the fluids arising from
the decompoallion of dead bodies.
a. vt nere a oerenaant seeks ihe vacn
tlon of a perpetual injunction allowed after
a trial in a civil action 'he burden is on
him to show that the threatened Inturv
has been certainly overcome, not that It
possibly may be. '
143JS. State against Walker. Error.
Platte. Direction of court below to bring
In verdict of "not guilty" adjudged to be
erroneous. Ames, C. Division No. 1.
1. For reasons stated In the opinion an
Instruction of the trial judge directing a
verdict of not guilty in this action is ad
Judged erroneous.
14i3J. Mtink against Frlnk. Error. Lan.
caster. Reversed and remanded. Ames,
C. Division No. 1.
1. Hy Section iKo ..f the Code of Civil Pro
cedure the eilstrlci court Is given jurisdic
tion to review, by proceedings In error,
sn order of the Stale R.anrd of Health re
voking the license of a physician.
2. A complaint Med Iw-fore the State lionnl
of Health for the purpose of procuring an
order revoking the license of a physician
is suincieni 11 11 iniorms tne accussed not
only of the nature of the wrong laid to
his charge but of the particular instance
of Its alleged perpetration.
3 The act of lsil. creating a Stale Board
of Health, ia noi roudeivd void by the fait
thai It provides for compensation of its
secretaries by fees which are not required
to lie accounted for to or paid Info the
state treasury.
144ns. tMale ex lei HensWy against lias-
AN UP-TO-DATE
AGRICULTURAL WEEKLY
Full of Interesting Reading for
Every Member of the Family
Partial List of Feature Articles
Already Printed This Year:
"Vancouver Country of the Northwest," Fire Articles.
Prof. Charles E. Bewer, University of Nebraska.
"Fruit Raising in the Sunflower State,"
E. F. Stephens, Florticulturalist.
Tlessian Fly and Growing Wheat,"
Prof, Lawrence Bruner, Nebraska State Entomologist
pear In all the regular Issues of the paper
during that period.
140D1. Iyiieas apaltiKt County Recorder of
Cass County. Appeal, Cuss. Affirmed. Al
bert, C. Division No. i
1. Kvldenre examined and held to war
rant the decree of the trial court.
2. A sale Is a transmutation of property
or a right from one peison to another In
consideration of a sum of money, ns op
posed to barters, exchanges and gifts.
S. A written contract between the owner
of real estate and a real estate broker for
the sale" of property does not contem- ORANOES-Califo'rnla Navels! all 'siies.
OMAHA WHOI.K.SALK MAflKET.
Condition of 1 r nte and Qaotatlons nn
Staple and Fancy frodace.
EGGS Fresh receipts, candled stock, 26c
UVK POL' I. TRY I lens. T'fcfifcc; roosters.
6c; turkeys. Me; ducks, SVjc; spring chick
ens. 'iVt'iiV; geese, V(ic.
HRKBSKD rOl'I.TUV Turkeys. lo-SlSc;
old toms. IKilGc: chickens. fi9e; old roost
ers, 7c- ducks, lie; geese. Italic.
BUTTER Packing .stock, lie; choice to
fancy dairy,, 18(&19e; ciamery, 21igp21Vsc;
prints. 2HJC. v V,
BUGAR Stitndard granulated, In bbls.,
f5.'l per cwt.; eubok7-3,i.S per cwt. ; cut
loaf, S'VEiO per ctvt.;.iMo. ij. extra C bags
Or bbls.. $". Of! per cVt ? No. 10. extra C,
bag only, M.BO Jicr .pwt; No. 15 'yellow,
bagB only, 4.af 'er c('t.;:XXXX powdered,
-5 ter cwt
FRESH FISH Trout. 103illc; halibut, Uo;
buffalo, dress-id. 9c; pickerel, dressed, 6Vfcc;
white bass, dressed lJc; sunnsh, 6c ; perch,
settled and dressed, tc: pike, -nc; cattish,
Vic; led snapper. 10c; sa?mon, 11c; croppies,
12c; eels, 18c; bullheads, Uc; ''lack bass,
2ac; whttnflsh, t.'c. frost legs, per dos., ibo
lobsters, green, 27c; boiled lobsters, uOc;
shad toe, 46c; bluetlsh, luc; hdrring, 40.
HAY Prices quoted by Omaha Keed corn
pany: No. 1 upland, 7..E0; medium, IT.tXi;
course, lh.iiouti.50. Rve straw, lti.50.
URAN Per Ion, I155.
TROPICAL. FRUITS
DATES Per bog of l-io. pkgs.. 12.00;
Hallowee. in 70-lb. boxes, per lb., oc;
Payers, per lb.. Oc; walnut-stuffed. 1-ib.
pkgs., I.'.io per dos.; 9-lb. boxes, 11.00.
'Gosling's Demonstration of Beef, Mutton and Pork."
E. It. Davenport, Market Editor.
"Management of Incubators and Brooders,"
G. C. Watson, U. S. Department of Agriculture
"How to Raise Turkeys on the Farm."
C. E. Matterson, Kewaukee, Wis.
"Live Stock Breeding in Great Britian,"
Prof. W. J. Kennedy, Iowa State College.
"Tuberculosis In Live Stock,"
D.. A. T. Teters, University of Nebraska.
plate an exchange thereof for other prop
erty.
4. A siibsenuenl oral contract, super
seding or modifying on which the statute
of frauds requires to be In writing, will
be upheld, if executed.
5. Under the evidence held, that a real
estate broker has no Just cause of com
plaint of an allowance to him of 1300 as
commission for services In the exchange
of properties.
14HR3. lvis against Morearty. Error.
From liougUis. . Affirmed. I.etton C. 11
vls'on No. I.
1. Objections to the appraisal of property
sold at a judicitil sale should be hied be
fore the sale, except where fraud in the
appraisement is charged.
14055. Walsh against Lunney. Error.
From York. AfHrmed. Oldham, C Di
vision No. 1.
1. Before one contract Is merged in an
other and superseded thereby the lust con
tract must is? between the same parlies
as to the first, and must embrace the same
siibiecl matter, ami must have been so in
tended by the parties.
2. Evidence examined and held sufficient
to sustain the judgment.
14167. Melinite against Mclntire. Appeal.
From Cass. Affirmed. Jackson, C Di
vision No. 2.
The plaintiff, a soldier's widow. M
years of age. was the owner of a small
cottage and two lots in the village of
lxiuisvillc. She had no other property and
no means of support except a widow's pen
sion. She conveyed the property to her
son and daughter-in-law' upon an exprens
promise of support. Within a short time
of the conveyance she was ejected from
their home and compelled to seek support
elsewhere. Held that the decree of the
district court cancelling the conveyance
should be affirmed.
14it. Austin against Tlrown. Reversed
and remanded with directions. I)ufHe, C
luvislon No. 2.
As between the parties thereto, or
where purchasers without notice are. not
affected, a deed of conveyance will be
corrected to cover Ihe premises intended
to be conveyed.
1469. lleckwilh agulnsl Dlcrka Lumber
and Coal company. Error. From Custer.
Amrmed. Puttie. C. Division No. 2.
1. A Judgment will not be reversed for
error of law occurring at the trial, unless
it Is alleged In the petition in error and
shown by the record thai the court erred
In overruling the motion for a new trial.
James against Higglnbotham, 60 Nebraska,
2o3.
2. A party who fails to object to an In
struction is conclusively presumed to be
satisfied nith it as given.
3. fine claiming title to personal prou
Isertv through a sale under attachment pro
ceedtnga In justice court must snow legal
notice to defendants of the pendency of
the action and that the property claimed
was attached therein.
HOST. Sweet against State. Error from
Holt. Affirmed. Holcomb. C. J.
1. A motion for a change of venue In a
criminal prosecution is addressed to the
sound discretion of the trial court, and un
less there has been an abuse thereof, its
ruling on the motion can not be disturbed.
Ooldesberry against State, wi Neb.. 112.
a. If from the showing made In support
of and against the motion for a change of
venue in a criminal case, there Is no reas
onable ground shown 011 which to found a
belief that the accused can not have a fair
and Impartial trial in the county where the
offense is alleged to have been commit lad,
it is not error to deny such motion, id.
2. An objection to a question on the
ground that it is leading and calling for a
conclusion of the witness does not properly
rsie the question of the competency of the
evidence sought -to lie elicited by such ques
tion a. The admission of incompetent evidence
may'be error without prejudice where the
fact to which such evidence relates Is other
wise established by competent evidence..
3. It is not error to refuse an instruction
concerning evid. ni-e of the previous good
character of the accused when the Instruc
tion calls attention especlall;. to such evi
dence and to no other, and te the Jury
that It may be relied on to false a doubt of
f'75: Florida, all sizes. 12.50
LEMONS Limonlera. ixtra fancy, 241
size. $:i.25; 3H and 3RD sizes, 3.7o.
FIGS California, per 10-It), carton. 76TJ
Stic; imported Smyrna, 4-crown. l-'c;
crown, 14c.
BANANAS Per medlum-slsed bunch, 11.71
fe2.26; Jumbos, 12.604 3.0.
TANGERINES Florid, per box of
about 125, 12.50.
GRAPE FRUIT Per bog. 15.30.
FRUITS.
PEARS Lawrenc and Mount Vernon.
12.50
CRANBERRIES Jerseys, 112.01. yer tfel.J
Bell and liuiiie. 11260.
APPLES California Bell'loweis. 11.40
per bu. box; Colorado Jonathans, 12.00 per
bu. box; Ben DuvU, II. UJ pm- bu. box;
Wlr.esups, 12.00 per bu. box; rah-:.- varieties,
12.00 per bu., New York apples, 14 W pr
y.bl.
GRAPES lmpnrtd Malagas. I5.5flft6.00.
OLD VEGETABLES.
P'J'i'Al OLe iionie-giown, per bu , 60
tSc; South Dakota, per bu., 75c.
ONIONS Home-grown, yellow and red
per bu., fcoc; Spanish, per crate, 11.75.
NAVY UKAN8 Per uu liOO.
LIMA BEANS Per bu.,
CAbBAUK Home-grow n and Wisconsin,
In crates, per lb., l(u'Jc.
CARUO'lS. PAP.s.ilFS AND TURNIPS
Per bu.. tkKij.uc.
Ci-.i.i-JitY ivalamazoo. per dot.. 25c
8YliKT POTAT JKH Kansas, per i-bu.
bbl., 11.75.
NEW VEGETABLES.
CAII.IFLOWER-Pet crate, 12 78.
TOMATOES California, per crate of
lbs., 12.00.
WAX BEANS Per hamper of about 31
lbs net. J60
STRING IUCANS Per hamper of about
t0 lbs. net, I3CM4,00.
EUG PLANT Florida, per doi.. II. ti
150.
GREEN PEPPERS-FlorlJa, per hampei
of ubout 10 do.. 2.b0.
TURNIPSLoulslana. per dos. bunches,
45c
S H A L I. O T T 3 Louisiana, per dot.
bunrl.es, 75c.
HEAD LETTUCE Louisiana, per bbl..
b. otfelo.iO; rer dor heads, 11.00.
LEAF LETTUCE Hoi house, per bog of
13 to 15 heads. 65c.
CL'CL'MBERS Hot house, per dos.. tl.il
61 60.
RADI.'UIES-IIot house. pr dox. bunches.
75c.
MCSliROOMS-Hot house, per lb.. &0375O
BEEF CUTS.
No. 1 rib. 12fec: No t rib. 8Vtc: No. J rib.
6c; No. 1 loin. 16c; No. 2 loin. loSc; No. 1
. loin. 7Vc, .no. 1 cnucKs, cm:: No. 2 c
4c; No. 3 chucks, c; No. I round.
chucks.
u; No. I
"Btory of Twentieth Century Irrigation."
II. A. Crafts, Fort Collins, Colo.
Ilow to Get Good Seed and Maintain It,"
Tro.f. T. L. Lyon, University of Nebraska.
Soi.is and Methods of Seeding Alfalfa," .
, E. F. Stephens, Hortieulturalist. ;a
"Hegulation of Railways by Public Authority."
William It. Larrabee, Ex-Governor of Iowa.
'Traveling Libraries in Kural Communities."
Edna D. Bullock, Nebraska State Library Commission
"Champion Steers in Feed Lot aud Cooler,"
Prof. II. R. Smith, University of Nebraska,
Readjusting Wyoming Ranching System."
A. S, Mercer. Western Ranchman.
"The Railroad and the People," Eight Articles.
Edward Rf.Kcwater, Editor The Omaha Bee.
"Fall S.iwn Alfnlfa in the Humid Region."
Prof. P. (J. lMden, Iowa Agricultural College.
Dnrum Wheat for Semi-Arid Land,"
M. A. C.ultou. Cerealist U. S. Dept. of Agricultures
"Practical Drainage of Fnim Lands,"
J. C. Holmes, Drainage Engineer.
"Forestry Problems Yet to Be Solved,"
Frank G. Miller, U. S. Department of Agriculture!
"Grass and I-Vrago Crops as Fertilizers,"
Prof. 1. L. Lyon, University of Nebraska.
"Beef Production Method of Feeders."
Prof. H. W. Mum ford, Illinois Agricultural Station
"Effect it Cold Weather on Fruit Blossoms,"
Theodore Willtauib, Hortieulturalist.
"Calendar of Work in the Apiary,"
Ad." in A. Clarke. Plymouth Creek Apiary. j
"Lire Stock in ilie Middle West,"
F. D. Cobnin, Secretary Kansas State Board.
"The Government Reclamation Service,"
Frederick H. Newell, Chief Engineer.
"Carvr of the Late Robt rt W. Furnas."
Piof. Charles E. Bessey, University of Nebraska.
1
"Improvement in Haiti Winter Wheat."
Prof. T. L. Lyon University of Nebraska.
"Problems Confronting Western Stock Growers."
.Murdo Mackenzie. Pres. Am. Stock Growers' Ass'n.
''Corn Crop in Pork Prodm-tic n,"
round. 6c; No. I round, 5ic; No. I plat.
4c; No. 2 plate. 3c: -o 1 mate. 214c.
MIBCUH-ANEOJ'S
CIDER Per km. 13.75; per bbl.. 16 76.
HONKT-Now, per 24 lba.. 3.5o
CHEESE Swiss. new. ic; Wisconsin
brick, 14c; Wisconsin ltmberger 13c. twins,
14'ic; young; Ami-ilcal, 14 He
NUTS Walnuta. No. 1 soft ahells. new
crop, per lb., l&c: hard shell, pr lb
1JHC. Fecr.ns. large, per lb.. 14c; sinull. per
lb., 12c. Peanuts, per lb.. 7c; roasted ner
lb., lo. Chill walnuts, per lb , i2fl34c' Al
monds, soft shells, ner lb.. 17c; hard sheila
per lb., lie. Shellbark bickorv nuts tier
bu.. 12.25; Urgj hickory nr's. per bu.. i jo.
Chestnuts, per lb.. 15c. C'ocr.o-Jlt D
sack of 100 v
HIDES No. 1 green. c; No. t green tr
No 1 salted. 11c; No. 2 salted. lV Nn 1
treal calf, lie; No. t .eal calf. c; dry
salted. ,jl4c; rheep pelts. lictbll 60; horse
aides, il.oaii.
Hon. James Wilson. Secretary of Agriculture.
The Past Is the Best Guaranty of
the Future.
F. D. Day & Co.
Dealers lm
Stocks, a ruin. ProvUlotu
al Ysmr Orals tm lm.
rue a, OCiee. uavill atar4 af Tvaaa
.. Oaasvam. B. TlaaiaasB M14.
l-4 Kxchao U4.. IouUi Omaha.
aUU -Phone Sa, Safla 4eat 'Paoae 4
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