Omaha daily bee., 1909-12-16

considered b. he jury i, d~tc-ml-.as =
credlhlity. and are not for the corslderl
uon u the court
Il BE- not error TO refuse &C. give an
Instruction stating a proposition OF Jaw
which is substantially covered and included
IN an Instruction already given
4 When the evidence shows that the al-
cused Is either guilty Of the off-uss
charged OF not guilty q any offense uha--
ever. the trial court is not required 10 give
an Instruction on the lover degree Of crnr
-rci ded in the definition of such offsrse.
Isis. BEETLE against T3edrsn. Appeal from
Madison. Affirmed. Rose. J.
4 On sppeai % re supreme court ;Nc
determination Of a question becomes the
law OF The case and ordinarily viii rot he
re-examined on a subsequent appeal In the
same case.
, Where q MORTGAGES assigned the mort
gag as collateral security and afterwari
received payment OF the debt but failed
60 turn it over to the assignee. the land
owner who made the payment with corr
stTuctive notice Of the assignment cannot
defeat foreclosure on The ground that the
Assignee is estopped TO deny MORTGAGES =
agency for the purpose Of collecting the
debt without proving the agency or facts
constituting an estoppel.
1915 Johnson against Terry. Apreai
from Gage. Reversed and remanded.
Root J.
L Neither a county court nor the Judge
thereof has authority to issue a writ %
habeas corpus TO be served In an adjoining
county for the purpose OF bringing before
said court or Judge. Al infant under the
age Of IS years not a resident az the county
70 the end that e Judgment may be entered
70 determine whether the custodian Of said
child SHAH be deprived Of the possession
thereof.
3 II a county court has thus acted in
excess Of is Jurisdiction and the father
has sued out a writ Of habess corpus In
the district court TO recover possession u
his child and the respondents IN their r.
I'm 10 SAID writ plead sufficient facts 10
althorize the court under article 2, chapter
%. Of the Complied Statutes. 1913 To make
an order divesting the parent Of such
custody, Il is the duty Of the district court
or its judge, to proceed with al reasonable
dispatch 70 uv the issues joined and make
an order in the premises FOR the best in
terests Of the child.
5 II a final order has been entered ga
favor Of the father. In a preceding habeas
corpus case between The same parties.
awarding him the custody Of his child. rho
court. In q subsequent proceeding between
the same parties. under chapter 20 sup
should only consider evidence concern.
the facts that have occurred since Oh
execution Of the former Judgment
1871 stanssr against Gather. Appeal
from Webster. Reversed and remauded
with instructions Barnes. J.
L A lessee OF educational land. COM
monty called school land. whose lease was
executed under the laws in force In 1873
Is entitled, during the existence Of his
lease to have a voice in the selection OF
the appraisers called 70 revalue the and
VIZ VIII DAA AM al - ~ @AaEAA
OF his lease ne Is not entitled to thai privi-
leg@- and II he desires 70 renew IL he must
90 so under the terms Of the act Of ISss
providing FOR the manner OF Appralsing
leased lands.
> After a lessee has aIowed his lease
70 expire by limitation without making an
application to renew the same. the onlv
right preserved to him thereby and by
law is that he will not be required 70 com
pete for contracts. and the rate OF rental
viii remain the same as that stipulated in
us OLD contract. nnHHN. huWmEnT on An an
prRisement OF the and made under the
provisions Of the present statute.
3 A lease Of educational lands executed
after the passage Of the act OF 1888 does
not entire the lessee to a voice in the Sc
lection Of the appraisers called upon 10 re-
value the land for lease purposes. although
such a provision Is inadvertently allowed
lease.
The commissioner Of public lands and
Duilcngs has no power to bind the state
by a contract contrary 10 OF in conflict
with the statute" in force al the time Of
its execution
against WsTfield. Appeal from Red Will
low Affirmed. LetJOn, J.
J. Or-F7-eG8milRt1On must be confined
10 the --cts and circumstances connected
with the matters stated by the witness in
his direct examination and TO questions
tending 70 affect mis- accuracy. veracity
or cTedibility.
2 Tbs reception of evidence collateral
70 the main issue which may throw some
light upon facts in dispute. Is ordinarily
within the sound leEa discretion OF the
trial court and unless prejudice appears. It
is no ground for reversal.
1926. Harper against Runner. Appealed
from Lincoln, Affirmed Root, J.
4 a provis on in a lease granting a
lessee ar option 10 purchase the property
during the term al .Uy price offered BIZ a
third party satisfactory 10 said Runner'
tthe lessor, is supported by The cons dara-
ton paid for the lease and cannot. Win
OUT the lREEeN'E ErmEnmW he wa-nuaA Ern-4ww
the period granted for the exercise thereof
2 And II the lessor during the term, Sc $
the land TO a third person, first giving the
leSHee an opportunity TO purchase, he
latter'E right to a specific performance II
his contract EIl not be destroyed by his
demand for an abstract ard a suggestion
that the deed be delivered and the pur-
chase price paid AZ the lessee's resldsnce.
& II a vendse IL Informed. preceding his
purchase. by a lessee in possess'on that
ne tenant claims 10 own the r-al estate,
the purchaser will stand In the shoes Of
his graut0r and may be compelled 10 con-
vey, precisely a. his vendor would have
BEEN coerced to perform II the conveyance
had not been made.
T. When the owner Of real estate sx-
presEly repudiRtes and REFUSES 70 perform
his contract FOR a sale thereof. a formal
technicSi tender is not a condition pre-
cedent 70 a suit for specific performance.
E&B Y~oungsrs against Excer Cemetery
association. Appealed from Fillmore.
Affirmed. Parnes. J
l. FANIl4NN-. III HunHHAnEG stated
in the opinion and held. sufficient TO sus-
tain the findings and Judgment OF the
district court
t5so4. Kane against Bowdpn. Appeal from
Cunning. Reversed with directions. Root T.
J. water flowing in a Well defin-d water
course. whether sTRle or creek IN its PRINT
i've condition NAV not except IN the sX-
erclse OF the power OF eminent domain.
lawfully b diverted and cast upon lands
OF an adjoining proprietor where 81 was
rot wont 70 run according to natural drain
age
2 A person may not. EXCEPT in the zx-
erclEe OF TIRE power Of eminent domasU.
laR fully Concentrate surface waters and
discharge them through an artificial ditch
m unusual quantities upUn lands Of an
adjacent owner 70 HIS damage.
1885, Shrvalier against state Error
from Lancaster. Reversed ard remandad.
Dean. J.; Reese, c J not sitting.
L To sustain an Information charRing
perjury the alleged false testimony must
be in respect 70 matter material in the
Fc1on in which Il IN given.
: Where in An prosecution for perjury
the defendant Is shown 10 have testified
falsely, but on matter not material 70 the
issue. such false testimony being In re-
material
3 In IN Information for perjury lie Al
leraLons N substance charge that the de-
PENDANT appeared as a petitioner In a Ger
tain Judicial proceeding pending in the
county court. that she asked the court 70
set 4 time for proving an alleged VIII OF
enc Helen A. Horn. deceased. that she
asked that said viii Of probated. tha- sic
VAS sworn on the hearing OF sad petition
by the Judge q said court. and III a NAT
Ter material 10 sad cause wi,flIly- cor
TupLy and feioniously dsposed and swore