Omaha daily bee., 1902-12-15

q ordinarily 10 Is error TOT the court 10
instruct the jury that n Circumstance, OF a
group Of circumstances as to which there
has been evidence on the trial. amounts to
group OF facts. III established, amount. in
law to negligence. the court, having left
The question as to the existence Of such
facts 70 the jury, may state their legal et
feet.
S. The declarations Of a deceased person
made TO a third party as TO his knowledge
Of the condition Of a bridge which gave way
while he was attempting to Croes II and
Cured. m NAV u' Se pr 0gs : received in evi-
dence as tending to establish contributory
1850. Sheldon against Parker. Appeal
from Gage. Judgment. Duftie. c. Division
l. Where n person has been declared a
bankrupt under the act OF congress APP
proved July I, 1898. the trustee appointed In
that proceeding may maintain, an action TO
set aside a conveyance made by the bank
rupt at any time within two years after the
estate has been closed, provided the act
the time the petition In bankruptcy was
,. The bankrupt act vests the assignee
with title to all property conveyed by the
bankrupt I'm fraud OF creditors. and he may
proceed to recover the interest of the bank
rupt in the property whether any creditor
was I'm position to attack the transfer or
not.
8. Where property has been conveyed TO
the wife I'm fraud Of the husbands credi-
tors. II can be pursued and subjected to
the payment Of his debts; but the pursuit
OF the property cannot De aDdIluOueu anu u
Judgment in personam for Its value taken
against the wife.
l. Evidence examined and held to sup
port a finding by the district court that
certain conveyances we're fraudulent as to
8. A trustee IN bankruptcy must IN GER
tain cases resort to the courts OF the state
to recover property OF the bankrupt fraud
ulently conveyed, In such. cases he Is. en-
titled TO all remedies and all relief that
would be afforded any other party litigant
under the same facts.
Douglas. Affirmed Lobingier, c. Division
l. Instructions must be based upon and
applicable to the evidence and must not be
such as to authorize the jury to draw an
unwarranted Inference therefrom.
?. Acceptance Of an offer to sell effects a
contract between proposer and .acceptor'
The fact that a receipt for part or the pur-
chase price is afterward given 10. the lat.
ter's agent, or that such receipt is signed
bv the formers agent. is not sufficient to
constitute such agents the contracting par
8. The payment Of part OF the purchase
price TO an agent expressly authorized to
make a sale Is a sufficient compliance with
the statute of frauds, especially in the alb
sence OF any showing that the seller was
prejudiced by payment TO the agent, instead
OF to himself.
feet a sale of corporate stock Is sufficient
to authorize him to subscribe the memo
randum required by the statute of frauds.
s. A Judgment will not be reversed merely
for the admission of a single Item OF in
competent evidence If IT rs foli 6T f6o im ssms
point corroborating the former. especially
where It is apparent that the Jury could not
have been misled thereby.
6 Where a breach Of contract is estab-
lished the injured party Is entitled, at least,
TO nominal damages. but his adversary
cannot complain Of an instruction which
authorizes the jury to find in his favor IL II
is found that the breach has resulted in no
i2sS7' Nebraska Mutual Hail Insurance
Company against Meyers. Error from Daw-
son: Affirmed. Ames c; Division No g.
court. in any county in this state, a SUM
mons therein may be issued to, and served
in, any other county, although there be but
a single defendant to the suit.
1854. Russell against State. Error from
Dawes. Affirmed. sullivan, c.
1. Upon the trial of an information charg-
ing an offense consisting of different de.
grees the jury may acquit the detenoant OF
Of the inferior degrees.
,. BY section 4Ss of the Criminal Code the
jury is required, in trials for murder, to de.
clare in its verdict whether the accused, II
IL find him guilty, is guilty of murder in the
first or second degree or m~anslaughter.
3. The fact that the jury on the trial of an
degree, capriciously, or without sutnclent
cause reject the evidence showing deltbera-
ton and generalization, is no reason why
its finding of an Intentional and malicious
killing should be set aside.
4. A non-expert witness may give his
general are capable of comprehending when
from the nature of the case II is impossible
for him to lay before the jury, all the peril
nent facts so as TO enable IL to see the
thing he is describing just as he saw It,;
3. It is not reversible error to permit a
w witGfsS he TO e eeSpiity n t te IDENTIFY III IN" properly %eGt
which he had been instructed to. seize for
the purpose of being used as evidence In a
G. Any evidence tending to sustain an
hypothesis which implies guilt is relevant
to the issue in a criminal case and cannot
Ia excluded on the ground that II I'M
peaches defendants general character.
T. Evidence showing that a pair OF old
shoes. worn by defendant at the time ne
was arrested, was taken from the jail in his
absence and without his consent does not
establish a violation of his constitutional
right to be secure against unreasonable
searches and seizures.
s. There is no rule Of law that limits coun-
sci in debate to mere articulation. He may
carry his conceptions Of truth to the Jury. =.
9. The modern practice both in civil and
criminal cases, IS to send the jury room
all instruments articles and documents, eX-
cept dispositions, which have been received
in evidence, and which will In the opinion
OF the trial Judge aid the jury In its de-
10. The ancient, practice of keeping the
drink. fire, light or opportunity for sleep
was never in vogue in this state The rule
is that a verdict cannot stand which Is the
result of any species of coercion.
II. The length of time a jury shall be
kept together in consultation Is a matter
over MIllil lit AAAdA NhhA Z "a a IA - NAg
cretionary power, but the verdict must in
every case represent Intellectual conviction
and not mere lack Of physical endurance.
u. The fact that a vlry has been kept
together an unusually long time without
reasonable opportunity for sleep VIII not
vitiate the verdict II II is shown that the
agreement was deliberate and voluntary
and not due to fatigue or exhaustion,
Is. The discussion by the jury of irrele-
vant matters upon which counsel for de
PENDANT based an appeal for acquittal does
not constitute misconduct within the mean
D ING of section $50 of the Criminal Code.
IA on the hearing OF the motion for a
new trial I'm a criminal case the decision OF
the trial judge upon an issue OF fact viii
which IL rests Is fairly conflicting.
Is. Evidence examined and found sufh-
client to sustain the verdict.
1879. Phelps County Farmers Mntual
Insurance Company against Johnson, Error
from Phelps county. Reversed. Oldham
C, division No. 2
THE rule Of the claw OF the case does
not apply TO questions Of fact determined
/ by this court between the same litigants
I'M the same cause OF action when there Is
a material and substantial change In the
testimony reviewed at the different hear
n Where all the property covered by a
policy of a mutual fire Insurance company
is rot destroyed the receipt OF a subse-
quent assessment by the company from a
member who has sustained a loss while
his policy was surrendered for default IN
the payment of assessments viii not op'
crate as a waiver of such default. Farm
! ers'. c. Co. against Kinney, Nebraska -
: 90 n. W. Rep, 926, followed.
8. Where the secretary of a mutual fire
insurance company is authorized 10 make