Omaha daily bee., 1911-11-08

cept $500 and interest thereon from
FEB. Is, 1902 TO the present time within
forty days Judgment OF district court
| to that extent VIII be affirmed other
wise judgment reversed and cause re-
manded. II such remlttitur is fled,
plaintiff to pay costs on this appeal In
district court; IL such remitttur Is not
filed, costs taxed TO plaintiff. Barnes, j.
/. Former opinion modified and the
plaintiff awarded judgment for $500,
with interest thereon mt per cent from
February Is, 1902, on condition Of filing
remittitur.
1000. Edmondson against state, Err
ror, Hamilton affirmed. Barnes, j.,
Sedgwick, J., not sitting.
i. guardian of the person and es-
tate OF a minor who converts the money
and estate of his ward to his own use.
thereby violates the provision OF Sec
ton lH of the criminal code; and the
fact that he has failed to report to or
make final settlement in the county
court, after being served with a citation
to make such settlement, Is not bar
to prosecution for the crime OF em-
bezzlement as defined in that section.
The voluntary admissions or n
guardian that he has used the money
belonging to his ward as his own, has
expended It for his own private purposes,
and is unable to replace or repay Il, ara
admissible in evidence against him and
II supported by other competent evidence
are sufficient TO sustain his conviction
of the crime Of embezzlement
8. Under an information charging n
guardian with having embezzled a GER
tain amount OF money belonging TO his
ward without describing 1t as being n
part OF any particular or specific fund,
proof that the defendant has converted
any money to his own use belonging 10
the ward will sustain the charge as laid,
When guardian has converted his
wards money to his own use, the fact
that he would be Justly entitled to u
small portion of the money so converted
as CONDENSATION for bid CprNTiCea IL
complete defense to a prosecution for
embezzlement
1901. Chicago. r. ]. & P. r. Co. against
State Railway commission. Appeal, Lam
caster, on motion for rehearing former
judgment Of reversal adhered to. Mo-
ton for rehearing overruled SedgwicS,
j., Reese, c. j., Fawcett and Rose, j.
j., dissenting.
!. The power to open streets and to
regulate and control railway crossings
over the same in Incorporated cities and
villages IS given by statute to the NUM-
cipal authorities. The state railway COM
mission has general Jurisdiction OF such
matters outside of cities and villages
2. Whether the state railway COM
the proper municipal authorities wilfully
refuse to act in regulating railway cross
ings of streets in cities and villages,
or has any supervising power of such
crossings to safeguard the passengers
and employees on trains is not involved
in this case and Is not decided.
g. Former decision adhered to.
164OS. Perry against Clark. Appeal from
Wayne. Affirmed. Root, j.
A court of equity will not enjoin an
upper proprietor from draining surface
water from his land through tile drains
In the natural course of drainage into
the natural channels which nature has
provided and onto the land Of lower
proprietor.
1891. Mudra against Groeling. Appeal
from Knox. Affirmed. Fawcett, }.
Sedgwick, j., not sitting.
M, being indebted to various banks and
individuals who held chattel mortgages
upon all OF his personal property, sold his
homestead, consisting of 100 acres of land,
to G., and, his wife joining, executed a
deed therefor to G AT the time of nego-
tiating the sale, and prior to the eXecu-
ton of the deed, NJ. directed G. to pay
the consideration for such sale, less GER
tain encumbrances upon the land, to the
creditors of NJ. One of the creditors or
M. was D., who, as notary public, took
their deed to G. d. was in no manner
instrumental in causing the sale of the
land or the giving of such oral directions
by NJ to G., but Immediately prior to
formed of such sale and oral directions.
After the execution of the deed G.. paid
the full amount of the net consideration
OF his purchase of the homestead to such
creditors Of NJ. including ID. Held. that
d. was not disqualified to act as notary
In taking such acknowledgment.
16471. Bradley against Chicago. Burling-
ton & Quincy Railway company. Appeal,
Adams. Affirmed Root. j.
/. II defeated litigant rendered no re-
quests to instruct the jury, a failure by
the trial court to include in its charge
sumo principle of law proper to have been
mentioned. will not Justify reversing the
case where the issues are stated and the
charge contains no prejudicial misstate-
ments of low.
2. It is the duty of railroad company
to equip its locomotive engines with such
appliances for the control of sparks as
the progress OF science and improvement
demonstrates are the best for that pur-
pose and which are generally known or
should be known by those in control of
the construction and repair of its en-
gines.
3. The plaintiff, in an action against
railroad company to recover damages for
an alleged negligent setting out of fire,
has no Just ground for complaint because
the trial court instructed the jury that the
carrier was not guilty of negligence in
using Ignite coal as fuel, unless thereby
the hazard of fire was so materially in
creased that a reasonably prudent man
would not ordinarily have used the coal
for that purpose
T. In an action for negligently setting
out q fire where the particular engine
from which the fire escaped is fully iden-
titled, IL Is not error for the court to eN-
clude evidence that on other occasions
fire escaped from the defendants other
engines.
8. Where upon a consideration OF tho
entire record II Is evident that the de-
PENDANT was not liable. verdict in It's
favor should not be disturbed because the
instructions in immaterial matters do not
accurately state the law.
1884, Werger against Steffens. Appeal
from Lancaster. Reversed and remanded.
Rose, j.
In a suit for injury TO realty and for
conversion of personally transferred
herewith by defendant to plaintiff, II is
mers objections. to show the entire dam
age by answering a question calling for
the difference in value of the farm before
and after the injury and conversion.
1854. Anderson against Noleman. Ap-
peal from Box Butte. Affirmed. Rose, j,
Where the eVldence relating to an issue
of fact In an equity case Is in direct con-
flct, the finding should be in favor OF
the party whose proofs are the more con-
vincing after all Of the competent testl-
mony and the credibility Of the witnesses
have been considered.
1888. Adler against Royal Neighbors OF
America. Appeal from Douglas. Affirmed.
Rose. J.
1t will be presumed husband knows
the age of his wife and is qualified 10
testify thereto, unless the contrary Is
shown, where they lived together thirty
years.
1883. Koop against Acken. Appeal
from Lancaster. Affirmed. Sedgwick, j..
!. To require vacation OF judgment
because Of perjury on the part OF the
one obtaining IT, II must be shown by