The Lincoln Star from Lincoln, Nebraska • 11

THE LINCOLN DAILY STAR. 11 SATURDAY OCTOBER 11, 1902. admissible to show that at the time These Two Dresses are in Style. not reverslblo error where It appears that the testimony of the absent witness would be either false or Imma SUPREME COURT RECENT DECISIONS OF THE Mw 1' 1 i I If i 1 I i iff Jtlu 7 II Mi is 1 i -f, i Im The supreme court at the last session handed down eighteen decisions. The Daniel Freeman case, Bonacum vs.

Harrington and Richards vs. the State were among the most imrp6rtant. The following opinions will be officially reported: Chicago, Burlington Qulftcy Railroad Company vs. Krayenbuhl. Error, Merrick.

Reversed and remanded. Albert, department No. 3. 1. Petition examined and held good as against a demurrer ore tenus.

2. When the owner of dangerous premises knows or has good reason to believe that children, so young as to be ignorant of the danger, will resort to such premises, he is bound to take such precautions to keep them from such premises, or, to protect them from injuries likely to result from the dangerous condition of the premises, while there, as a man of ordinary care and prudence, under like circumstances would take. Approving A. N. R.

Co. vs. Bailey, 11 Neb. 336. S.

In such cases, In the determination of the question of negligence, regard must be had to the character and location of the premises, the purpose for which they are used, the probability of Injury therefrom, the precautions necessary to prevent such injury, and the relation such precautions bear to the beneficial use of the premises. If, under all the circumstances, the owner omit such precautions as a man or or-dinirv ram nnd nrudenee would take, under like cftcvmwtances, he is guilty! npirlle-pnce 4. Ordinarily, the question or negu- gence Is one of fact for the Jury, to be determined from all the facts and circumstances shown in evidence, and It is error for the court to group certain facts in evidence together and instruct the Jury that they constitute negligence. 6. In an action, by an Infant in the care arid 'ustodr-ff lor personal injuries, it Is error to Instruct the jury that his lessened earning capacity is an element of damages, unless it be limited to the period 'from which he would be entitled to his earnings.

6. An instruction authorizing the Jury, in arriving at a verdict, to bring to bear their own knowledge, observation and experience In the business affairs of life, is erroneous, when not limited to such knowledge, observation and experience as they share in common with men generally. 7. An instruction relative to the damages to be awarded the plaintiff, if any, closed -with the statement thnt they should not exceed a specific amount, naming the amount claimed In the petition. Held that the practice of thus referring to the amount claimed, should be discountenanced.

8. Instructions tendered examined and held, properly refused. 9. Rulings on the admission of evidence examined, and held, not erroneous. Rickley vs.

State. Error, Sheridan. Reversed. Duffle, department No. 3.

Section 322 of the code of criminal procedure In so far us it authorises the question of the good faith of the prosecuting witness In instituting the prosecution to be tried and determined at the same time that the defendant is tried, and the taxation of costs against him in case it is found that in filing the information he acted maliciously or without probable cause, is unconstitutional and void. State ex rel. Freeman vs. Behove. Prmr dao-fi Reversed and writ al lowed.

Aines, department -No. 3. Sedgwick, J. and Holcomb, J. concurring specially.

Exercises by a teacher in a public school in a school, building, in school hours and in the presence of the pupils, consisting of the reading of passages from the Bible and in the pinging of songs and hymns and offering prayer to the Diety in accordance with the sectarian churches hi reUfiioiMrorsnBi--zations. is forbidden by tlhe constltu-" tlon of this state. Central City vs. Engle. Error, Merrick.

Reversed. Ames. department No. 3. 1.

A petition by a married woman In an action for damages for a prsomil Injury which does not allege that she is or has been or anticipated being the owner of any separate estate or property or engaged in any trade, business or service or the performance of any duties except those pertaining to her husband's household, does not entitle her to recover damages on account either of loss or earnings already in curred, or nf her diminished rapacity to earn money as the result of the Injury. 2. When It Is shown thnt a person Is affected by a serious constitutional disease of a tendency thereto, It is error tn miVimlt to tlifi iurv the question or his expectancy of life in the absence oi any evidence bearing upon thut question, Bechel vs. Pacific Express Company. Error, DoukIms.

Affirmed. Pound, department No. '2. 1. The decision of an examining magistrate in binding over to the district court a person accused of felony, is prima facie evidence of probable cause tor ine prosecution, uui in conclusive.

2. In an action for malicious prosecution where there la sufficient undisputed evidence to show probable cause, the trial court should direct a verdict for the defendant. 1- 3- Jt person who suspects another of having committed nn offense Is bound to verify his suspicions ny sucn in- I fi i. would sntrirest under the circumstances of the particular case, uefore beginning a prosecution. 4.

Such person need not, as a general rule, call upon the person susnected to give nn explanation, cspeclnllv where there Is no reason to believe that such the contract was made such purt insisted that said materials must be obtained in the east because he considered the eastern designs, workmanship and finish superior and to show that a subsequent purchase of such materials in the east was in pursuance of the understanding when the contract was made and to comply with the requirements he was empowered to make by its express terms. 4, The findings of fact of a referee, on conflicting evidence, confirmed by the district court after hearing on exceptions thereto, will not bo disturbed on arpeal. Triska vs. Miller. Error, Saline.

Affirmed. Kirkpatrick, department No, 1. Unreported. 1. In a cause tried to the court without the Intervention of a Jury, the presumption Is that the trial court considered only competent testimony in arriving at a decision.

2. Answer examined, and held not to be an admission of the allegations of the petition. 3. Certain rulings of the trial court refusing to permit the cross-examination of a witness examined, and held, not prejudicial error. 4.

Evidence examined, and found to sustain the finding and decree of the trial court! vs. Humphrey. Eiror, Cass. Affirmed; Oldham, department No. 2.

Unreported. 1. Evidence examined and held sufficient to sustain the judgment of the trial court. 2. Action of the trial court In overruling plaintiff's motion for continuance, approved.

3. The action of the trial judge In geiss to the home of a witness who was physically unable to attend court and permitting her testimony to be taken in his presence, there, held, not an abuse of Judicial discretion. De Wolf" vs. Village of Bennett. Er ror, Lancaster.

Affirmed. Albert, department No. 3. Unreported. Ordinarily in an action to recover for services rendered a village, a petition, which does not allege a prior appropriation for such services, vulr neranie to a general aemurrer.

Lin coln Land Company vs. Village of Grant, 57 Neb. 70, distinguished. Mendel vs. Boyd.

Error, Douglas. Reversed and remanded. Barnes, department No. 2. Unreported.

1. Evidence examined and held to establish the fact that the transactions complained of were mere speculations on the rise and fall of the market price of grain on the board of trade, and were therefore illegal and void. 2. The drafts used in the deals com plained of having been drawn to the order of the cashier of the bank which was defrauded, by himself or at his instance by the assistant cashier, were sufficient, of themselves, to put the defendant upon Inquiry as to the nature and ownership of the funds used by them In the transactions. 3.

The broker in such transactions will be held liable to the true owner of the funda, even If he has no knowledge of the ownership thereof. Central Stock and Grain Ex. Co. vs. Ben-dinger, 109 federal report, 926.

4. Payment to the Joint tort feasor without tracing the money Into the hands of its owner Is no denfenae In an action against the broker tQ recoter the money lost In such deals. S. In such an action the broker should be charged with the amount of the trust fund actually received and converted by him, and he is entitled to credit, by way of mitigation of damages, for all of the money repaid by him which can be traced back into the hands of the owner thereof. 6.

When a bank cashier Is a defaulter to his bank for money used. In gnmbllng on the board of trade, and his sure ties to the bank pay his shortage, they are subrogated to the rlirhts of the bank against the broker with whom the money was lost.n 1. Evidence examined and held not sufficient to sustulii the verdict. Knudson vs, Packer. Error, Phelps, Reversed.

Duffle, department No, 3. Unreported. Transactions between relatives by reasen of which -strangers who have sold goods' to some of gil'ctt refrltlves will be deprived of payment therefor will be scrutinized very closely and the good faith of the same must be clearly established. Bartlett vs. Cheesbrough, 23 Neb.

767. Will Need Mors Room. From the Los Angeles Times. If the Terrors keep on the President will soon be compelled to add more room to his sleeping apartments that he may hang their souvenirs of the oc casion on the Inner wall. Of 0n Mind.

From the Minneapolis Journal. The Chicago Journal has found a husband and wife of one mind. A Mrs. Robinson thinks there's nobody in the world like Robinson, and he thinks, so, too. If they can only keep that upl Certainly Not.

From the Minneapolis Journal. The Indianapolis papers' are deeply stirred over the robbing of graves by agents of the medical colleges. Should we allow our finer feelings to Interfere with the march of "science?" May "Tskt a Tumbls." From the Los Angeles Times. Senator lieverldge has opened' the Michigan campaign, and It looks as If Mr. Alger, the Michigan sawmill man, was likely to fall Into the opening.

Writing Out the BibU. A pious Liverpool lady has devoted her odd moments to writing out all the books of the Bible. A local preacher In the Midlands has three times writ ten out the whole contents of the Now Testament. does pot cover the tracks. That th Burlington placed station of thl cost at Hosting Is testimony of II confidence In the city as a growln commercial renter.

The new station Is three quarters of a mile nearer th center of the town than was th old one and this Is a business advantage which the rond appreciates. Kimball of Omaha In the architect who planned the structure. terial. S. The refusal of the district court to suspend for an Indefinite time the trial of a criminal case to enable the defendant to procure the attendance of a witness i not.

In the absence of a showing of diligence, an abuse of judicial discretion. 4. An accused person fleeing from Justice after arraignment and before trial is not employing the klna oi aiu-gence contemplated by the law governing continuances. 6. An attempt to suppress evidence, to stifle the prosecution, and to prevent a trial by flight beyond the Jurisdiction are circumstances from which unfav orable inferences may be drawn against the defendant in a criminal case.

Richards vs. State. Error, Lancaster. Affirmed. Sullivan, C.

J. 1. The word "feloniously" can serve no practical purpose in an Information charging all the essential elements of a felony. 2. It was thought In ancient times to be a wholesome rule to require the pleader to show by the use of the word "feloniously" as an appellative term the grade of the offense charged, but the reason for the rule and the rule itself have ceased to exist.

3. An immaterial cnange in the title to a bill, whenever made, is without legal effect. 4. The words "original code" when used in the title to a bill providing for the amendment and repeal of a section of the general law relating to crimes. should be construed as referring to the code of 1873 and not to the abrogated code of 1S66.

6. A defect or Imperfection in the title of a leglslatlveblll may be cor rected by amendment at any time De-fore the bill is nut uponits passage. The constitution does not require that every bill shall be read at large on three different days in each house of the legislature under an exactly identical title. 6. The act of 1887 amending section 12 of the criminal code contained but one subject and that subject was nv.aiaar1 in the title.

7. The legislation-embraeea-m -tne said act of 1887 was wtthin the title to the act of 1873 providing for the establishment of a criminal code, and was germane to section 12 of the last mentioned act. 8. The purpose of the" legislature, by the act of 1887, aforesaid, to amend and repeal section 12 of the criminal code is not rendered doubtful by the reference to section 11 in the repealing clause. 9.

The act of 1895 amending section 2 of the criminal code was constitu tionally adopted and is a valid, law. 10. Neither old 'age nor devotion- to country in time of peril can be regarded as a complete disproof and refutation of the charge of rape. 11. Evidence examined and held suf ficient to sustain the verdict.

The following opinions will not be officially reported: Payne vs. Llebee. Error, Jiurralo. Affirmed. Kirkpatrick, department No.

1. Unreported. 1. Where in an action by the alleged endorsee of a promissory note, the de fendant denies the plaintiff's ownership, the burden of proof Is upon plaintiff to show by competent lldence that th" endorsement on the Bote is that of the puyee. 2.

Where the finding of the trial court is supported by sufficient competent evidence, it has the same force and effect as a verdict by a Jury, and will not be disturbed unless manifestly wrong. 3. Evidence examined, and found to sustain the finding and judgment pf the trial court, frm.en vs. Platte. Error.

Lincoln. Affirmed. Kirkpatrick, department No. 1. Unreported.

1. All men are presumed to read and understand the terms of contracts en tered Into by them, and in the absence of fraud, deception or other undue means In procuring their execution. they will not be permitted to escape liability clearly expressed by the language of the contract. 2. Where a grantor -under deed, by the terms of which he agrees to -as sume nnd pay a mortgage, for many years exercises ownership over the land conveyed, paying taxes, and interest on the mortgage, and joining In the execution of an agreement extend ing the time for the payment of the mortgage, he is estopped to deny that he assumed to pay the mortgage.

8. Refusal of the trial court to speci fically find upon certain questions. held, under the facts In this case, not error. 4. Evidence examined, and found to sustain findings and Judgment of the trial court.

Creeden vs. Patrick. Error, Douglas. Affirmed. Pound, department No.

Z. unreported. 1. A finding that the court at a pre vlous term had determined that it was necssary and advisable to continue i pending reference, but through Inad vertnnee had made no notation thereof on the trial docket, so that no order was spread upon the Journal, is suffl dent to sustnln sn order directing entry of an order of continuance nunc pro tunc, without any finding In such terms thnt the court mJe the order airecieu 10 ue rnu'reu. 2.

While a referee has no power or Jurisdiction to proceed with a hearing or perform any acts of a gudlclal na ture after expiration of the time fixed bv the court for making his report, filing the report out of time Is a mere Irregularity nnd does not preclude the court from acting thereon In Its de termination of the cause. 3. A written building contract Dro vlded that the work was to be dorte according fo certain plans nnd specif) cations to the satisfaction of one of the parties In design, workmanship and finish." The plans and specifications contained no details as to certain nia terlals required, and nothing was siec, ified as to where they were to be ob tnlned. Held thnt parol evidence was tils wainscoting from a tile floor. In the west wing sre the Trngcage, storage and express rooms, A lobby pushes eastward through the administrative section, connected with the general wnltlng room In the east wing.

Beyond Is the wtlng Mum, a smoking room and a restaurant. Purroundlng the building, In continuation from the roof, Is a fourteen-foot porta cohere. Wide as It ia this shed explanation would materially alter the opinion produced by Information already acquired. Bonacum vs. Harrington.

Appeal, Harlan. Reversed with instructions. Pound, department No. 2. 1.

The courts will not review the Judgments or acts of the governing authorities of a religious organization with reference to its internal affairs for the purpose of ascertaining their regularity or accordance with the discipline and usages of such organization. Pounder vs. Ashe, 44 Neb. 672. 2.

For the purposes of this rule it can make no difference whether the governing authority is confined to one man or to a synod or conference, nor whether the mode of procedure permitted to such person Is in accord with the ordinary course of investigations or trials. Bach religious organization must be the Judge of its own 3. When the governing authority of such an organization has deprived one of its clergymen of his authority to officiate as such, he may be enjoined from making use of church property In that capacity, or under color of the functions of which he has been deprived. 4. Where a local church congregation is a member ef a general organization having general rules for the government and conduct of all Its adher ents, congregations, and officers, the orders and Judgments of the general organization through its governing au thority, so far as they relate exclusively to church affairs and church govern fc, re binding on the local associa tions, and will not be re-examined by the courts.

Pounder vs. Ashe, supra 6. In case property has been contrib uted und conveyed to the authorities of the general church organization for' the purposes of religious worship in accordance with the doctrine and disci pline of a particular denomination, persons claiming under said denomi nation and not pretending in my way to bold AdseJ.lj have any title of their own except as members thereof, may be enjoined from using such property contrary to the determination of governing authority of the denomination. Pounder vs. Ashe, supra.

Dargan vs. Williams. Error, Dawes. Affirmed. Albert, department No.

3. 1. Where a mortgage lien, on personal property less than two thousand dollars In value Is equal to or gr ater than the value of such property, and the mortgagor discharges such- lien with money received as a pension from the United States, such property is exempt from execution, undpr the provisions of section 531, code of civil procedure. 2. The exemption, provided by said section, extends to property tukeii In exchange for the property therein mentioned, as well as to the increase of such property, subject to the limitation therein fixed as to the amount.

Punteney-Mitchell Manufacturing Company vs. Northwall Company. Error, Douglas. Reversed. Albert, department Kn 3.

1. AnBwer examined and held sufficient ae against an objection" first urged at the close to constitute a counterclaim. 2. The acceptance of. goods by: a vendee is not a waiver of his right to return them for breach of warranty, where he had not inspected nor had a reasonable opportunity to Inspect them, before such acceptance, where the defects were latent and he accepted the goods In ignorance thereof.

8. Where the vendor, in pursuance of a contraot of sale, delivers goods which do not Conform to the warranty, which the vendee for the reason, returns or duly offers to return, and tht vendor falls to furnish goods conforming to the warranty, the has a right of action, for breach of contract, and in such action. Is entitled to recover such damages as may be reasonably supposed to have been in coptemplatioruof ther. parties then the contract w-as- made -asthe probable consequences of such breach. 4.

In such action, It is error to instruct the Jury that the measure of damages is the difference between the agreed price, and tne real value of the goods actually delivered. 5. Where the goods are bought for the purpose of resale, which is known to the vendor, and the vendee, before discovering the defect P' lis them to his customers, who reject them because of such defects, the reasonable expenses incurred in making such abortive sales, and the reasonable expenses Incurred in returning the goods to such vendee are proper elements of damage. Reed vs. Reed.

Appeal, Douglas. Re versed. Duffle, C. department No. 3.

The determination or property rights not growing out- of the marriage relation should not be Joined with an ac tion for divorce, but when such rights are asserted in the petition for a dl vorce nnd no objection Is made to the misjoinder, the court should hear and determine the controversy. State vs. Ioechner. Error, Douglas, Exceptions sustained. Holcomb, J.

A member of a board of cduontlon of a scnooi uistrict in a city having a population of over fifteen hundred organized under the provisions of subdivision 14, chapter 79. of the compiled statutes, Is a ministerial officer within the meaning of the term as used 111 section ISO of the criminal code providing for the punishment of certain public officers for malfeasance In office Hubbard yin Error, Knox. Af firmed. Hulllvan, C. J.

1. Every person accused of crime should be afforded reasonable nppor tunlty to marshal his wltnrssen and prepare for trial, but mere procrastlnn tlon delay for delay's sale should not he tolerated. 2. The denial of a motion for a con tlnuance In order to secure evidence Is ftpRes a railway station which Approaches anywhere near the and beauty of this structure. Situated north of the main line as It pusses through the city, It' Is" 2(6 feet In length and thlrty-lhree feet wide.

Jn the center are the ticket ami telegraph offices in an ornamental section two stories In height Htone and gray brick form the walls, which rest on a concrete foundation. On the Interior rises The Public School System of. Nebraska By W. K' FOWLER, State warmed to 70 degrees Fahrenheit be-grades during the day, and leave the room In the afternoon In time to permit the janitor to sweep before dark; the evening they may devote to church, Boclal, musical or literary matters In a comfortable Other teachers In the state creep out at daylight from between comforts frosted at the edges, tand on Ice-cold matting while they break the ice In tli pitcher, and then creep to the cob Bra In the kitchen stove to warm their benumbed fingers and feet; they may eat In the kitchen. If It la very cold, if not, in the half-warmed dining room adjacent, and then they trump a inllo or so along the country road or through the cornfield, gathering a This great state occupies an unriv aled position In having the lowest per cent of Illiteracy of any state -In the union.

Nowhere has the value of a common school education been more generally and universally acknow ledged nor has the free secondary and higher education been neglected. According to the census of 1900 there Is only one person In every three hundred above the age of ten years that cannot read and write; or as the re port expresses It, tho percentage of Illiteracy In the state Is Iowa is a close second to Nebraska. The constitution of Nebraska, adopted 4875, declared thnt all moneys arising from tho sale or leasing of sections number 18 and 30 In each township In this state should be perpetual funds for common school purposes, of which the annual Interest or Income only can be appropriated; and the Interest on these school lands sold and leased, together with that on warrants, county bonda and school district bonds, certain fees and licenses, and the state school tax of IVt mills or less upon the dollar of assessed valuation of all taxable property In the state, provides a sum in excess of 1000,000 apportioned annually to nil of the common school districts of the state. This amount will increase from year to year rather than diminish, Local school districts may tax themselves not to exceed 25 mills on the dollar of assessed valuation. All fines, penalties and license moneys are appropriated exclusively to the use nnd support of the common schools in the respective subdivisions where they msy accrue.

The constitution also states that the legislature shall provide for tho free Instruction In the common schools of all persons between the ages of five and 21 years. Free education, Inclqd Ing free textbooks and supplies, la fur nlshrd In all school districts In the state, Hchool government. orgnnlza tlon and msnsgement In Nebraska Is elront nnrely local, each one nf the 0.B7S districts being responsible for Its own school. l.iM'h- AlsUlct provides a full course of Instruction In all of the eight grades or years of work below the ordlnsry high school, and many of them furnish graduate certificates upon the completion of this work. The course Includes reading, Writing, arithmetic, grammar, geography, history, physiology, etc.

In some of the larger cities of tho state kinder gartens have been established. When a school district has a popu lntlon of ISO or more children of school sge. It may organise ns a high school district and furnish free high school privileges to nil Its pupils who com plete the eight grades of work below the high school. Wn have In Nebraska nearly 100 villages maintaining a high school of one yenr, or a total of nine grades of Work; there are 160 villages with high schools of two years; 30 villages or cities with high schools of three years, and 15 cities In the state maintaining a full four years' course, many Of them differentiated Into classical, scientific, English and commercial courses. Above these wo have as a superstructure the magnificent University of Nebraska, with Its faculty of 200 and an attendance of more than 1,000.

The university has a heavy endowment from the lands donated to the state by the United States, and is supported by the proceeds of Invest ment of a permanent fund, by other Incomes, and by a tax of one mill upon the dollar of assessed valuMort of the state. IN THE STATE SCHOOLS. There are at present enrolled In the schools of Nebraska 288,000 children; the state has 1,678 schoolhouses of which 25 are stone, 320 brick, 132 log, 464 sod, and the rest are wood or frame buildings. The number of aod, school-houses in tho state In 1890 was nearly 800, but It has steadily decreased since that time, while the number of brick, buildings rapidly Increases. The value of school district property In the state Is estimated at the total Indebtedness of all districts at and the total annual expenditures at $4,600,000.

Nebraska employs hih ntmlly nearly 9,000 teachers, including' 3,000 In- graded schools. While the Inadequate facilities are provided for In the thorough preparation and training of our teachers, they are alive and awake to the educational cnlls and needs of the day. Associations of teachers are held frequently, county, congressional district and state, and the country summer Institutes are well attended and profitable. Teachers' associations of late years, however, differ materially from those of a few years ago, In that school board associations, patrons' meetings, women's clubs ando ther auxiliary associations are now frequently held In connection with the teachers' gatherings, A majority of the teachers of Nebraska carry on reading circles for their own benefit and are this yenr devoting a large proportion of their time to the study of the elements of agriculture, as a knowledge of that branch will be required for a teacher's certificate after July 1, 1903. More and more attention Is being paid to the environment of the child, and better school buildings ore being erected, with a view to the greater comfort and convenience of the child, with better sentlng, lighting, heating and ventilating.

The tendency In Nebraska Is not toward a larger number of school districts and more school houses, but rather toward a diminution Iw thswim-ber of districts, with fewer and better school buildings. There bus. In fnct. been ft decrease In tho number of school districts In the state during the past year. We desire to unite the weaker districts and weaker schools, that better and Stronger schools may be estnbllnhed.

1 TEACHING IN WINTER. Winter Is Home teachers In Ncbrnska will get up In the morning 111 a steam-heated bedroom, breakfast in a warm dining room, rliln to school In a stove-heated street car, teach la a steam-heatd school-room The New Burlington Station at Hastings, Nebraska. "shuck" or two to start a roaring flrn In the cannon ball stove with the aid of the newspaper from yesterdny'8 lunch and a few "cottonwood around the fire the teacher and pupils revolve and also rotate on their axes that they may not freeze on ono side while they roast on the other; after the thirty-second period or recitation for the day, the teacher sweeps out the school house and then plunges homeward through the mow to spend a long winter-evening In thfj farm-house. Fairy tale and fiction? We have been In both places, and In the latter place we received about one-half or one-third the salary thnt we did In the former. Hut do not bs discouraged If you are still In tt rural school! You are doing a grent work, and it Is a great disciplinary jitbool for youl How Improve condi tions? We hardly know.

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8t OmH JiS to 814 r'nin if -W Nowhere In thfl west Is there a more handsome railway s-atlon than that of the Burlington at Hastings. Only a little over a week ago It was turned over by the contractor, a finished structure of masonry and tiling, and It Is row In full use by the travelers of Hastings. The cost of the' building was about I7B.0O0. It Is doubtful if any city In the country of the population Of Hastings, which is about 8,000, pos-.