Omaha daily bee., 1909-05-02

l. Inc nusDNlu anu WHO mNl AhNktN NANh
homestead owned by the wife. together
with other lots owned by the husband,
TO c. Afterward they executed a second
mortgage to the appellant on the lots
owned by the husband. Held, that on a
foreclosure OF these mortgages a decree
requiring c to exhaust the property not
embraced in the homestead before selling
the homestead estate was proper. and that
the appellant had no cause of complaint.
as a marshalling Of securities Is allowable
only where the common debtor OF two or
more creditors is the owner Of the several
funds out OF which payment is to DO
made.
Reversed and remanded. Barnes, J.; Root,
j.. and Reese, c. ]. dissenting; Rose j.
not sitting.
4 In a prosecution for the crime com-
prosecuting witness ~testifles positively to
the facts constituting the crime, and the
defendant as positively and explicitly
denies her statements her testimony must
be corroborated by facts and circumstances
established by other competent evidence In
order to sustain a conviction.
2 Evidence examined In substance stated
in the opinion and held not sufficient to
sustain the verdict.
3 In prosecutions of this kind II IL the
duty OF the trial court TO properly instruct
the Jury as to the necessity OF corrobora-
ton without any request therefor on the
part Of the defendant.
1858. Callahan against state. Error from
Douglas. Reversed. Lotion. j.; Rose, j., not
sitting.
1. In the prosecution against the Superin-
tendent of a cemetery for unlawfully as
sisting. melting and procuring another to
dlsinter human remains whore the evidence
Is that the accused had no knowledge OF
the disinterment and state relies upon gen.
eral instructions to a person employed as
a grave digger as constituting the melting
and assisting act. instructions In another
and particular instance are not sufficient
to support a conviction.
Q. Evidence set forth in the opinion, held,
not to constitute such instructions 70 n
- aanNNaNIan In N
case where Il is shown that no knowledge
of the disinterment was had by the SUI
perintendent until some time after the act
had been performed.
Cross-examination should be restricted
to matters covered by the examination in
chief.
opinion, held, error to submit the question
to the jury as to whether the Instructions
given by the defendant to the laborer IN
the particular instance constituted a RUE
OF action for future instances.
1879. Yeiser against Broadwen. Appeal
Douglas. Reversed and remanded. Epper-
son, c.; Fawcett, j., not sitting DIVISION
No. /.
/. A written assignment of a sum of
money in the custody OF an agent, intended
to convey the title thereof to the assignee,
and made in definite terms, without the
reservation of control In the assignor, Is
sufficient to give the assignee priority over
a creditor attaching such funds In the
hands of the agent subsequent to the date
of the assignment.
2. Fraud is not presumed from the mere
fact that an insolvent debtor assigns prop
erty or pays money to his attorney for
services rendered orI to be rendered In the
future.
Lancaster. Affirmed. Reese, c. j.; Fawcett,
j.. not sitting.
l. The right of a land owner To restrain
an adjoining property owner from using
his property as a bawdy house, or house OF
i'll fame, to which persons resort for the
purposes of prostitution and lewdness. Is
n ~ 1AnaFA 20 NhA- IAnA nnh tho fnnE
that defendants premises were so used
before plaintiff purchased property, con-
stitutes no defense to an faction TO enjoin
2 The illegal use of property as a house
of Ill fame constitutes a continuing injury
to a nearby property owner, which is un-
affected by lapse of time.
3. The fact that municipal authorities
tolerate the maintenance of a house OF
prostitution on defendants property, and
thereby violate the law themselves, con-
stitutes no defense to a suit by. a nearby
property owner to enjoin such maintenance.
special damages being shown.
4. Where n nearby property owner and
those In his employ, are compelled to wit
ness indecent conduct of the inmates of ~
bawdy house, and to hear loud, boisterous,
indecent and annoying noises made by
them and their dissolute companions. he
thereby suffers a special injury, different
from that suffered by the general public
Notwithstanding the maintenance OF such
place is a public nuisance.
1876. Barnes against STATE. appear
from Cass. Reversed. Calkins, c.; Root,
Chapter " of the laws OF 1905, pro-
viding for the examination and licensing
of persons engaged in the practice of
veterinary medicine and forbidd1ng per-
sons not so licensed from assuming the
title of veterinary urgeon, or the title
of any degree conferred by the veterinary
colleges, does not contravene any con-
stitutional provision.
l5I5O. norris against Miller. Appeal from
Buffalo, Affirmed. Reese, c. }.
!. In an action for damages Tor an as
sault and battery wherein II was claimed
by eacn OF the parties that the other was
the agsressor, and by the defendant that
what ne did was In self-defense, II was not
error for the court to instruct the jury
among other things, that the right OF self
defense did not imply the right to attack,
Or to voluntarily enter into an affray, nor
TO use more force than was necessary for
his defense, and that the question as to
who provoked the difficulty or made the
first assault was for the jury to decide
under the evidence.
2. In constituting instructions upon any
given proposition all instructions bearing
upon the same should be construed to-
gether as a whole.
3. Where two persons engaged volun-
tarily in a fight. either can maintain an
action against the other to recover the
actual damages for the injuries he may
receive, and the fact that the combat was
by agreement or mutual consent of the
parties TO 1t is no defense.
4. Immediately after an encounter be-
a@tAHA@ $3.50 N@ If@'Ah
tiffs hat was picked up near where he
fell and was introduced in evidence upon
the trial showing a break Or rent at a
place which when worn would be over or
near the point injury upon plaintiffs head.
The identity, condition and possession of
the hat were shown by evidence preliminary
to It's introduction. Held, that the admis-
sion of the hat in evidence was not err
roneous.
5. After the conclusion OF the instruc-
lions by the court to the jury, and upon
the jury retiring from the court room to
deliberate upon their verdict one of the
jurors. by mistake and inadvertence picked
up the hat which had been introduced In
evidence and carried II into the jury room,
where II remained until the next day, when
II was removed by a bailiff and returned
to bhe court room. The evidence adduced
upon the motion for a new trial showed
that the hat was taken by mistake and that
little II any attention was paid to II by the
jurors; that II was upon the table around
which the Jurors assembled and used as
a ballot box a part of the time; that II
was not used In any way for the purpose
of influencing the minds OF the Jurors and
did not influence them. Held, that the TAX
ing Of the hat TO the jury room, under the
circumstances, was an irregularity, but
without prejudice TO the defendant.
1859. Hibner against Wilson. Appeal
from Lancaster. Reversed and remanded.
Root, j.; Reese, c. j., dissenting; Dean and
Rose, J. j., concur in dissenting opinion.
l. II. in his report as administrator of an
estate, claimed compensation for services.
Said ifam WAS alIouya1 In mart apd a. =.