Omaha daily bee., 1902-12-19

malicious prospecution and recovered dam
ages. Miles appealed 10 the supreme court.
and hat tribunal holds the lower court was
correct. II a complaining witness, in his
statement 10 his attorney before institut-
ing a criminal proceeding. makes a recita-
tion Of facts claimed to have been per-
sonally known TO him, which the jury
thinks untrue, II IL no protection that be
acted on the advice Of attorneys. Malice,
IL says. Is not necessarily presupposed to
be personal hatred or III will, but an action
based on an improper motive. infersble
from a wrongful act based on no reasonable
ground.
Points in Commercial Law.
A point in commercial law is decided in
the case Of oakley against Carr, from Ian
caster, which is reversed. The court says
that notice Of the dishonor OF a promlssory
note-its being protested-is sufficient II
sent to the last indorser by the hrst mail
Of the day following dishonor. even though
such indorser is an agent for collection
merely, and he is entitled to one additional
day to notify the indorser Immediately
preceding him. This need not be a new
one, but he may utilize the one sent him
by the protesting ofhcer.
The court holds that an action In the
nature Of a creditors bill cannot be main.
tained to set aside the conveyance of prop
erty which is exempt to the defendant as
a homestead. The case came from Phelps
county. where Henry d. Jayne tried to have
a conveyance from the Holdrege National
bank to the wife of its president. w. E,
Hymer. set aside on the ground Of fraud.
The court says there was no fraud, that
the conveyance was bona hde. and that the
temporary residence OF the Hymers in
University place for the purpose Of educat-
ing their children did not rob them Of the
claim to a homestead in Holdrege. To
maintain an action of this kind It must
be alleged and proven that the relation OF
creditor and debtor existed at the time Of
the conveyance, or that 1t was executed
fraudulently with the expectation on the
part Of the husband that he would become
indebted to the plaintiff and to hinder the
collection Of the debt when contracted.
York Can Use Severe.
The city Of York may continue to empty
its sewage into the waters of Beaver creek.
John Todd and some others resident along
the creek sought to enjoin the city from
doing so on the ground hat II would cause
life on their farms to be unbearable and
would amount In fact to depriving them OF
the use OF their property. On behalf of
the city It was retorted that II was neces-
sary for the health OF the inhabitants
thereof to have IN outlet of that character
and that as a matter OF fact there had
been a lot OF hog pens along the creek that
smelled louder unto the heavens than
would the outlet. The district court dis
missed the case as lacking in equity, and
the supreme court afirms this decision. II
holds that II is always a question of fact
in cases OF this character, the law being
that equity has the power to prevent pol
luton and contamination OF running
streams.
Must Amend Insurance Contract.
The Sons and Daughters OF Protection
will have to amend its contracts Of lnsur-
ance and forms OF application II It desires
to avoid paying death losses to the families
OF members who have taken their own
lives. The supreme court has just AFFIRMED
a judgment occurred in Cherry county by
Emma E. Underwood against the order.
The decision Of the district court in the
case of the Chicago House Wrecking COM
pany against the Stewart Lumber company
was affirmed.
Two will cases were decided, in both Of
which the validity OF the Wills was upheld.
They we're that OF John Knox from Otoe
county and Jerry G. Elliott from Burt
county.
Terminal Company Must Pay.
The supreme court affirmed the award Of
damages for $5,059 In the case of Reed
against Omaha Bridge and Terminal Com
pany. The company took property on which
Reed had a mortgage and the question in
volved was whether Reed had a right to
appeal from original mortgage.
Rank against Garvy was a case involving
the ownership of some land in South
Omaha. formerly owned by Thomas Ryan.
deceased. Swift and Armour wanted the
property and through a representative Ar
mour secured option on the land. while the
sale was pending Swift offered more
money FOR 1t and the heirs accepted this
proposition. Suit arose over this. The
court held that original contract was
good.
In the case OF e. C. Hager against South
Omaha Hager got $1,000 damages in the
district court because Of a fall on a side
walk. The court reversed the decision be-
cause the court in instructing the Jury
omitted a material allegation that city
must have notice.
v. Wrzensunski against City OF South
Omaha was a suit for damages. The plain
tin while going over a street v,aduct on
foot went through a hole, and he was
awarded $500 damages. The supreme
court sustained the verdict. The city relied
on the fact that no claim had been filed.
but the plaintiff showed that a letter had
been received by a former city clerk.
OEteOpathIc Doctors Meet.
The State Association OF osteopathie Ply
sicians held It's annual convention here to-
day. with an attendance Of about thirty.
The following officers were elected: Pres