Omaha daily bee., 1909-07-03
SUPREME COURT sYLLABI

Pahs. Affirmed. Good. C. Commissioner
department.
when the allies atoms Of the petit
ton are denied, the burden ~ on plaintiff
to make prima facie proof that no action
At law has been instituted for the recovery
weeke against Workman. Appeal.
Reversed and remanded. COlkins,
c. Commissioners department.
l. A comparatively slight degree or mental
tncapacity or weakness on the part o. a
party thereto will Justify a court Of equity
in setting aside a contract for which auch
party has received no valuable considera-
ton.
2. An administrator who pays out money
in pursuance OF an order made b. the
county court cannot be personally charged
with the reimbursement OF the same. in
the absence Of evidence showing that the
order as obtained by fraud and that he had
guilty knowledge OF the same.
Fisher v. Chambers. Appeal. Lancaster
Affirmed. Fawcett, J.
/. Questions Of fact. and upon CON
fllcting testimSny are 60 be ne qsOi 1ef 3 s
aside on the ground OF a want OF sutn-
client evidence to support u unless the
Want is so grssi a. v to she" s sHSs sSs V co,
Breli v. Claus droth Pisttdutschen
Yereen. Appeal, Douglas; AIiirmee; Mp
1. Within the meaning Of an Insurance
contract for sick benefits, II cannot be said
that an assured Is not confined tonhNaAhN
ly to the house" during an illness charao-
teriEed by recurring periods Of severity,
although at intervals he may occasionally
step into his yard OF make visits 70 ms
trips, the assured at ell times being un-
able to resume the ordinary duties OF
sohuster v. schuster. Appeal, Polk. Re
versed with directions. Dean, J.
l. A tenant in common who Is In sole.
exclusive and adverse possession nh9eI
s11NPa - N4N1n In 1fah1A 70 HE nO-NnnQnL Tor
an accounting for rents and profits.
q An action for the recovery Of rents
and profits from a co-tsnant 10 not barred
by the statute of limitations until four
years have elapsed from the accruing OF
8. A, J, L and H. brothers, by joint
contributions Of labor and money, pur-
chased $40 acres OF farm land, aking the
title in the names OF all me protners. The
evidence examined, discussed in the opin-
Ion and held, the brothers are tenants IN
common and II may lawfully prosecute
and maintain an action for partition and
for rents and profits.
Shade v. Common. Appeal, Howard. Re
versed and remanded. Barnes, J.
/. The personal estate of a deceased per-
son Is primarily liable for all debts created.
or personally assumed by him., whether
secured by mortgage on his real estate or
not; and his heis and devisees have the
right to require his executor, who Ia also
out OF the personal estate. Patrick ".
Patrick, u Neb. 454.
2. Where, In a foreclosure suit, brought
against a devisee and the heirs Of a de-
ceased purchaser OF the mortgaged prem
ises who is personally liabie for the pay
ment of the mortgage debt, It appears
from the cross petition OF the devisee that
the executor of the viii, who is also the
residuary legatee, has received personal
property belonging to the estate of the
testator exceeding the amount OF the lien
ought to be enforced, such executor may
be compelled to pay off and remove the
mortgage lien.
g. The right to enforce such payment is
mortgages to file a claim against the es-
tate of the deceased purchased for the
payment Of the mortgage debt,
4. A guardian ad Item, appointed by the
court TO protect the rights Of an infant
defendant, should file a general denial.
and in case the proper protection OF the
rights Of his ward requires It, he may
take such affirmative action by filing a
cross petition. or other pleading, as may
be necessary for that purpose.
8 One charged with the duty of paying
off and discharging a mortgage on real
estate may, on application Of the owner
of the land, be made a party to the fore
closure suit and be compelled to pay Oft
the mortgage debt and relieve the real
estate Of the mortgage lien.
Bree Brothers v. F1restine. Appeal,
Hitchcock. Reversed and remanded with
directions. Duffie, G. Commissioners de-
/. Where a party, free from fault OF
iaches, is prevented from having his APP
peal docketed in the appellate court within
the statutory period, solely through the
negligence or failure OF the proper officer
to prepare the transclpt of the Proceedings,
the law will not permit him thereby to be
Farrell v. F.. K NJ. Ins. Co. Appeal,
Red Willow. Reversed and remanded
Root, ].
lating TO proofs and loss should be con-
strued with great liberality.
z. An agent OF an insurance company
charged with the duty OF adjusting its
losses has authority to waive the giving of
notice and proofs Of loss.
8. And II such an adJuster, after prop
sTty covered by a policy Of Insurance Is;
by fire, goes to the scene Of the con-
fasration and informs an agent Of the
assured, who was directed to look after
an adjustment OF said loss, that said loss
is total and the company will be com
PEELED to pay 1t, and that II the policy
holder were present they would have no
trouble in settling, such conduct and state
ment, II the assured relies thereon, amount
to a waiver or the part OF the company
of notice and proof OF loss and will estop
upon the non-receipt Of such ntics and
proof.
Cleve ". Chicago. B. q O. r.. Co. Ap-
person, !. Commissioner department.
!. A railroad company shipping stock.
accompanied by the owner, Is not liable
for loss occasioned by excessive heat In
/ ~ eAAZAk III NAA0 ~ y
dsnce OF negligence.
Berger V. Wilcox. Appeal, DAWSON. Re
versed. Duffie. c. Commissioners depart
ment.
i. Where q barkeeper sells intoxicating
liquors TO a minor, or to an habitual
~drunkard, the proprietor OF the place will
be held esponsible for such sales in the
absence OF evidence that they were made
In violation OF his orders.
Peterson v. State. Error, Kearney. Re-
Versed and remanded. Root, J.
l. Where a defendant Is being tried for
incest the declarations Of the prosecutrlx
made I'm his absence concerning an al
legged crimina Intercourse with him In q
county other than the one wherein he Ii
being tried, are incompetent and. II re-
ceived over defendants objections, entitle
him to a new trial.
2 Where the defendant in a criminal
case has testified In his " behalf and
the court has given a proper instruction
concerning the crsdibility of the witnesses
generally, It IL not proper in another in
struction to state neither Is the jury
bound to blindly receive the testimony Of
the defendant as true"
l54S2 Hruby against Sovereign camp Of
the Woodmen Of the World. Appeal from
Cunning. Affirmed. FaWcett, J.
J. When the evidence is substantially
the same as on a former appeal, the weight
and effect ~ be given such evidence must
be considered as foTeclosed BY the former
decision on that point. Mead against
TzsChuck, 81 Neb., OILS; 70 N. w. %
1875. Shannon against Bartholomew Ap-
peal from Douglas. Affirmed. Duffie, q.
Commissioners department
J. A notice to the owners of land, sought