Omaha Daily Bee Newspaper, November 25, 1903, Page 15

POSTOFFICE NOTICE., (8hould be read DAILY by all interested, a8 changes may occur at any time.) Forelgn mails for the week ending No- vember 3, 1903, will close (PROMPTLY in il cases) ‘at _the General Postoffice as fol- lows: PARCELS-POST MAILS close one hour earlier than gosing time shown be- low. Parcels-Post Malls for Germany close &t 5 p. m. Monday Regular and supplementary mails close AL Forelgn Station half hout later than closing Ume shown below (except that Sup- plementary Malls for Europe and Central America, via Colon, close one hour later at Forelgn Btation). Transatlantic Mal WEDNESDAY—-At 7:30 a. m. for NETH- ERLANDS direct, (mail must be dirécted “per s. s. Staaten- dam”); at 8:3 a. m. (supplementary 10 a m.) for EUROPE, per s. s. Teutonie, via ueenstown). THURSDAY—At 7 a. m. for FRANCE. SWITZERLAND, ITALY, SBPAIN, POR- TUGAL, TURKEY, EGYPT, GREECE, BRITISH INDIA and LORENZO MAF QUEZ, per s. % La Bretagne, via Havre (mail for other parts of Kurope must be directed “per s. 8. La Bretagne’) BATURDAY—At 6 a._m. for EUROPE, per ®. 8 8t. Paul, via Bouthampton (mail for Jreland and letter mall for pool_must be directed “per . 8 8t. Paul"); at 7:% a m. (supplementary 9 a. m.) for BEUROPE, per s. 5. l.unnu.ufln Queenstown; at 8:30 n.nx. or BELGIUM direct, per s. Zee- lai all must be directed “per s. Zee- land % a. m. for SCOTLAND di- rect, pe Furnessia (mall must be di- rect! 8 8 Furnessis): at 11 a. m. for DENMARK direct, pee 4. Oscar 11 (mail must be directed ‘per s s Oscar closing of the Supplementary tlantie h named above, addl. tional Supplementary Mails are ovened on the plers of the American, English, French and Germa! teamery, and re- maln open untll within Ten Minutes of the hour of salling of steamer. Mails for South West 1 . WEDNESDAY—At 11:30 a. m. for BRAZIL, g—r 8. 8. tania, via Pernambuco, Rio aneiro and Santos (mail for Northe Brazil, Ammlllle. Uruguay and Paraguay must be directed’ “per s, Catania’); at 12 m, for CUBA, per s. Havana (malil for Mexico, via Progreso, Campeche and Vefa Crus must be directed ‘per s. s. Havana”). FRIDAY—At 12 m. for BANTIAGO, per s. Jason (mall must be directed ‘‘per . . Jason"); at 12 m. (supplementary 12:30 p. m.) for BAHAMAS, per Bantlago mall for Mexico, via T must be irected. “per s. #. Bantiago”); at 6:3) p m. for BERMUDA, per steamer from Halifax. BATURDAY—At 8:30 a. m. (supplementary 9:30 &, m.) for PORTO RICO, CURACAO and VENEZUELA, per s. Aelphia (malls for Bavanilla and Cartagenn must be directed T 8. & Philadelphia 9 & m. for ENADA, TRINIDAD and CIUDAD BOLIVAR, per s. s. Maraval, % 8. M eupplementary 10:30 a. m for FORTUNE ISLAND, JAMAICA, SA- VANILLA and CARTAGENA, pir's. s. ene (mall for Custa Rica must be di- rected “per s. 8. Alene”); at 9:30 a. m. \pupplementary. 100 a ' m) for ST: HOMAS, 8T CROIX, LEEWARD and WINDWARD ISLANDS, ~ BRITISH, DUTCH and FRENCH GUIANA, per s. s. Manona; at 10 &. m. for CUBA, ‘per s. s Morro Castle, Havana; at 10:30 a. m. (supplementary 11:30 a. m.) for INAGUA, HAITI and SANTA MARTA, per s Adirondack; at 11:0 a. m. for ARGE TINE, URUGUAY and PARAGUAY, per Central America, B per s s Staatendam | 8. 8. Camoens; at 12:3) p. m. for CUBA, per a. 8. Curityba, via Havana. Malls Forwarded Overlan eept Transpacific. CUBA-—Via Florida, closes at this office dally, except Thursday, at §6:30 a, m. (the connecting malls close here on Wednes- days and Baturdays via Tampa, and on londays via Miami). MEXICO CITY—Overiand, unless speeially for dll';‘lch by closes dally, except day, d 11:% p. m. Sundays at d_11:a0 p. m. DLAND—By rail to North Sy by steamer, closes at thi thence y at 6:30 p. m. (cohnecting mal ) every fl-dar. Joflnu(-y ‘-'3’ JAMA y rail to Boston. and thence by steamer, closes at this office at §:30 p, m. every Thesday. By rall to Phil lghll and steamer. closes at this office at 11:30 p. m. every Wednesd: MIGTELON-BY Tail to Boston, and th 2 wtotmer, closes. ot thia sfhes ety st e 'TO_ CORTRZ M{E{y Tl (o New Orleans ience by steamer, closes at this of- fice daily, except Sunday, at §1:30 p. m. and “‘and $98 p. mo ‘undm i p. m. and §11:30 { m. (conneeting mal Slones here Mondaya at {11:0 p. m.). COSTA RICA—By rall to New Orleans, and thence by steamer, closes at this bfce dlll‘. except Sunday, at §1:30 p. m. and l1' m. * Ete,, Ex- this thence hy P Sund ‘: m. and 30 p. m. (connecting mall closes here 'uenda at §11:3 p.m.). IREG D MATL closes at 6p. m previous day. Transpacific Mails. via Ban Francisco, close here 3 s m. up to November §2 for dlspatch 'pnr & 8. Alameda, JAPAN. ia vancouver and . B, close here daily at D, . up to November §24, Inclusive, 4or ais: patoh per s, 8 .Empress of Chink, (Mer chandise for United States Postal agency at Shanghal cannot be forwarded vllflt‘lnldl.\ CHINA and JAPAN, via Seattle, close here dally at 6:% p. m. up to November §25, lficludn. for dispateh per 5. 's. Riojun aru, PHILIPPINE 1SLA) via San Fran- clsco, close here d t 620 b m up to §26, inclusive, for dlspateh per 2o be Do raneport, " 'rfixf-gfl d 'g'umuuu ISLANDS, via n nel 3 close nere dally at p. tor to November §26, inclusive, AeAR, CNA" ana prILTP. 5"!‘“ o, close Sl v By ey S . m spatch per s. Hong 3 AHI A (excent C. FLIT, AWA! gfl.!n e here daily at anclaco, . m. uj 4 eflgbflr 85, inclusiv ,‘)“_p h The dispatch r ra. (If the Cunard stéamer g:rry- British mail for New Zealand does arrive in time to connect witk this teh, extra malls—closing at m. Jh &. m. and 5 at 4 m m. and P, m.—~ b‘ made up and forwarded until the !!'m nard l!nmer,}l A (except West). FIJT 1SL. and NEW EDONIA (specially oniy), via Vancouver and Vic- 1ot close here daily at 6:% p. m. up to mber §5, Inclusive, fer dispatel per s. 8. l’unn. HAWAIL, JAPAN. CHINA and PHILIP- PINE 'ISLANDS, “via San close here dally at 6:30 p. m. up to D gemper §7th, inclusive, for dispatch per 8. China. CHINA and JAPAN, via Tacoma, ere daily at 6:30 p. m. up to Decembe: 122, Inclusive, for dlspatoh per s, s, Shaw- mut. NOTE—Unless otherwise addressed, West Australla {s forwarded via Europe, and New Zealand and Philippines via' San Francisco—the quickest routes. Philip- pings speclally addressed ‘via Canada' s Yia Jourope: must be fully prepald at the forelen rates. Hawnll 18 forwarded via Ban Francisco exclusively. Transpacific malls are forwarded to port of safling daily and the schedule of closing is arranged on the presumption of their uninterrupted overland transit. §Regis- tered mail oloses at 6 p. m. previous day CORNELIUS VAN COTT, Postmaste: Postoffics, New York, N. Y., November ), 1908. e ——— RAILROAD TIME CARD. UNION STATION—10TH AND MARCY, Mlinocis Central. Al [ close Leuave, Arrive. reeees® 138 A 810:8 pm Chicago, poits & u’l. lulu' ‘tdh i 750 pm & 806 am finea ul Baxpress ... 128 am 103 pm Chicago & Northwe . Chicago T ok !f_u.t' cEEEP [ ¢ > e £ EE nuPLiR scids B8 B8 § EE SENEEI EEEEE THE OMAHX DAILY RAILWAY TIME CARD—C ed. The Atiantic Bxpross The Colorado Special Chicago Speclal Lincoin, Beatrice al Stromsburg Express North Plat Local Grand Island Local Chicago, Rock Island & Pacitie. Chicago Daylight EA‘aT' e ¥ ‘t'd.a Chicago Daylight Local Chicago Express. Des Moines Expre Chicago Fast Kxp 8 Rocky Mountain L't'd. Lincoln, ,Colo. Spriuxa Pueblo and ® £23 sse s 883 855 L] oo L op 5 §EE35 LRt Al = sEeee B RERES Ci oma Flyer. . cago Great Weptern Ry. a8 Faul & Minne- 104 B2 Bolige apress. a 78 am 103 t. Dodge ixpress. a 3:% pm 2 8t Pau, & Minne: apoiis Limited. ... .a 7:65 pm 7 W Dodwe Express.. 168 Ft. Doage Express.. Missouri Pacific, 8t. uls Express. b K &O8 0 T Expions. alois Chieago. Milwavkee & Chicago Dayllght Chicago Fast Hxpi ¢ Limitea BURLINGTON STATION—10th & MASON, & Quimcy. Leave. Arrive. Chicago kE 66 am Chic 7 Speocial... go Vestibuled ex ;: Local. o Fust Mall. Burlington & M Wymore, and a §:50 am b12:06 pm 850 am a Black Hills and Sound Express.........all:10 pm cgloredo Vi ibulés .r . Lincoln Fust i, . Fort Crook and Plati mouth ..... vopeo oD 815 pm Bellevue & Pacific Jet..a 7:50 pm a 8 Bellevue & Pacific Jet..a 3:50 am Kans: B 152 pm Olty, St. Joseph & Counell ity D Fige Ity Ex 5. 56 ight .2 %95 am a 6:05 pm w 0.5 pm all:05 am Bt, Loul & .a10:45 pm A 6:30 am Kansas WERSTER DEPOT-15TH & WEBSTER Twin City Passenger. Bloux City Passenger. Oukland Local . Missouri Pacific, Nebraska Local, via Weeping Water........b 4:10 pm 210:% am o Daily. 1 Dally exXcept Sunday, d Daily except Saturday. e Dally except Monday. not Navigate the Snowy Streets. The California navel oranges are being snowed in at the freight yards, They arrived yesterday and could have been unpacked If there had been a heavy sea running, but the navels are not used to Steering through the smow. They will be a trifle higher in price for a few days, but by the end of the week will have set- tled down to a jobbing figure of about $3.2 or $3.50. The California tomatoes do not like the climate any better than the oranges, having come from Los Angeles, and are so eager to sell out and go to the warm interfor, that they are making the grocers a $2.50 proposition. The west- ern pears have been in about as many Jack pots and frult/cans this year as they Wil see, for the stored stock is nearly all eaten up. Tokay grapes, too, aro billed for a table in the hall of famé about the middle of next week. The Keystone state grapes, Catawbas, are still with us and will stick for two or three weeks. Their proposition s a 2l or 22-cent figure for four-pound baskets, The Epanish onfons and the Wisconsin cabbages have not said a work about it or &0t things in a stew, but they are pushing to the front as money makers. The Span. fards are charging an extra 10 cents whole- sale now for coming off the shelf. They were §1.60 before when they could sit out- side on the sidewalk, The cabbages are 1% cents a pound wholesale, which is a steady step upward from 1% Inside a week. Other staples are jogging along at the same price. The western potatoes are still coming in refrigerator cars now and run strong at a 7 or S0-cent figure. The east- ern apples are nearly all here now, al- though scattering cars are recefved. The regular honest stock goes to the grocers at from $ to $4 a barrel, but the peddlers scoap up some not over-fastidious fruit at as poor @ figure as $2. The commission houses are now handling the turnips, beets, carrots and parsnips which come in from the coun. try. g — A Wonderful Change. ‘Weak, sickly Invalids are soon changed by Eleotric Bitters intd healthy men and women. They cure or no pay. 60c. For sale by Kubn & Co. ey e —— Dynamite, but Not Danger. Commotion was rife in the vieinity of the ground recently acquired by the Chicago reat Western raliroad when Mr. -Yeager. the foreman of the gang employed in de- molishing the bulldings to make room for the railrond bulldings and tracks, eported the finding of a stick of dyvnamite and short fuse in gne of the brick houses at 10 & m. The polico were notifled and Officer Mitohell sent to Investigate. He ascertainad that a man who was engaged in peaceful purauits had placed It there, not wishing to carry It about with him. fea:ing that to Ao 0 would arouse suspicion. The police and all concerned seem to be satisfied that no ulterior motive prompted this man to put the dynamite in the house, and the inei- dent will hardly be recalfed unless re. peated. ——— Mortality Sta len. The following births and death have been reported to the Board of Health: Births—Poter Smith, 2003 Seward, girl; Lambert Hummel, 2942 Franklin, !’ofl» coe Tubbs, 1611 North Twenty- IIIL. rl; Frank Kelly, 1811 Cass, Doy Amos Mo: Dowell, Marcy street, boy; R. K. Under. wood, 111" North Fortieth, boy; Axie ¥ Neleon. 2110 Grand avenue, boy. eath—Lorin Nebergall, & months. Paviog in W Storm. Repairs to the asphalt paving on Cuming Street were continued yesterday despite snow. The force of men that had been engaged in trimming the holes were set to work sweeping the white flakes from the concrete surface and the wearing surface was packed in as rapidly as possible. A fall In temperature would make cessation of the work necessar; results from a disordered condition of the stomach and is quickly cured by Chamber'ain's Stomach and Liver Tablets. For stle by Kuln & Co. —_— Rallway Notes and Pers The Rock lsland has announced the put- & on of through tourist curs from Chi- cago to Los Angeles, C R, H. Ashton, assistant general manager of ihe Northwestern, with headguarters in Chicago, wWas in the city yesterday Wik, Scogin. traveling freight agent o the Missour{ Pacific from St. Lou visitor at the local offices of the yesterday morning. H. Whalen. superintendent of lowa division of the Chicago & North ern. with hesdquarters a [ visiting the affices of his company Notice has been recelved by local pus. senger ts that the quarantive of San Anto ‘whic g- in effect on ac- t er. 18 now removed, and ;:‘ can be sold to that :-L the PLAN T0 BEAT C0AL TRUST Omaba Man Discovers Easy Way to Save Fnel and Keop Warm. BURNS ASHES AND MAKES GAS IN FURNACE Says He Gets More Heat from the Ashes Than from the Original Coal, and Gets 1t Easter, The Coul trust will have a rather bad winter in Omaba If the entire city takes up a scheme Inaugurated in a certain nelghborhood in the north side of the city last week. An enterprising real estate man discovered that he could burn ashes and he has not burned much of anything else eince. If you only understand how to do it, he says, the trick is one that will glve lots of heat, save lots of money and result In & by-product in the way of Illuminating gas. ““This is too valuable to be kept a secret,” he said. “I think that everyone ought to know about it, so they can buck the Coal trust. The discovery was made because I had been experimenting a long time trying to find a way to beat the game. I have found out that if sufficlent water is poured on elther soft or hard coal ashes to make them pasty and semi-solid, that they can be made to burn in a furnace and they will give out more heat than the same amount of coal. It is necessary to keep the smoke pipe damper open in order to allow the water gas to escape and the drafts must be left on, but if a hot fire is needed, wet ashes are the thing for me. “We are trying to find a way now to con- fine the gas and use it lighting our homes. But that will come later. “Bunday morning I put a bucket of soft coal in my furnace and spread a layer of wet ashes over the fire. The ashes were from six to elght inches thick. The fire did not need replenishing uatjl night, and the only dificulty was that the house was a trifle too warm. Whether the ashes can be used for a second and third time I do not know, but am certain they make good fuel once. “Before anyone else tries this I want to caution them to leave the smoke-pipe dam- pers open and the drafts on, or there is likely to be an accumulation of gas, which may wreck their homes. This, however, can be avolded with proper care." IS SAD NEWS_FO_R ROOSEVELT James Gracle, Closely President, is Dead Will Cease, Endeared to 4 Gateties NEW YORK, Nov. 24—James King Gracle, an uncle by marriage of President Roosevelt, is dead at his home here the result of an attack of pneumonia. He had been sick only a few days. Mr. Gracie was & well known banker. Both the pre dent and Mrs. Roosevelt were much ai tached to Mr. Gracle and his death will cause them sorrow and put a temporary stop to all gaities at the White House. He was born in New York in 189. He mar- ried a mister of the president's father. WASHINGTON, Nov. 2.—The White House s in mourning on account of the death of the president's uncle, James K. Gracle. There will be no soclal entertain. ments until the cabinet dinner on Decem- ber 7. At the cabinet meeting today the presi- dent announced that probably he will at- tend the funeral of his uncle, James K. Gracle, which I8 to occur in New York next Friday. —— TURKEYS ‘ARE HARD TO TOUCH Thirty Cents Per Pound Now Asked for the B in New York Market, NEW YORK, Nov. #4.—Turkeys will be & luxury to most New York people this year, The price s almost a record breaker, Turkeys, geese and ducks are selling at 30 cents a pound iIn the eity market, or 10 cents higher than in 1901. The price of all clastes of poultry has risen steadily this week, even chickens being at an almost prohibitive figure. Eggs also have risen as far as prices are concerned, belng quoted at 40 cents a | dozen, Poultry ralsers, to take advantage of the scarcity In turkays, are kiiling their chickens. to get the big price. — A. B, Hubermann, oldest and absolutely reliable jeweler in Omaha. Goods marked in plain figures and lowest prices guaran- teed. 8. E. corner Thirteenth and Douglas, SUPREME COURT SYLLABI. 12602, County of Valley against Milford. from Valley. versed and - dis- Kirkpatrick, C. Division No, 1. L A county cannot foreclose its llen for ;lll- b"“:l:.ut :' sale first having been ade county treasure - ufio :l ulawluu gl lh:r:ol: i) ure procee u sale certificate by a co’\lx.r'nyw;n.-t '.b: bmnfiht Wwithin the time limited by section 1, artele iv., and section 2, article v., chap- ter 77, Compiled Btatutes, 8. T\ five-year limit within which fore- closure proceedings upon a tax sale ocer- tificate must be brought does not ccmmence o, fun until the expiration of the two years n whic e tax debtor may redeem from the sale. : 4. The county's : Al 8 llen for taxes is not di- vested by the Tailure of the county ty fors close its tax lien within the time limited by atute, but the county may again pur- at tax sale for years covered by, velor purchase. 2 eary against Neary. Appeal, Lin- ;'oln.l AfMrmed, Kirkpatrick, (‘.? Division 0. 1, 1. The rule of caveat nmrwr applies to urchasers or mortgagees of property from Tustees, executors or other persons acting in fiduclary capacities, 2. A testatrix who willed her property to her “children, appointed her husband her sole executor, with power, when in h Judgment It would best subserve the in- terests of the estate, to sell or exchange the property devised, provided the proceeds of such sale or transfer were reinvested in Teal estate, the title to which should vest in her children. After testatrix's death thy husband remarried, and executor con- veyed property of ihe estate to his second wife without consideration, and soon there after he and his wife jolned in a mortga upon the property conveyed, the money be ing pald to him and by him diverted to his own use. The will was probated and l!zr-und of record, and upon the abstract of title upon which the mortgagee relied in making the loan. Held, that the more gagee and his assig: ge were charged with notice of the want of power in the execu. tor to place the legal title In the mlmort‘un any of the property o estate. 1. The Introduction in evidence of a cer- 4ified copy ‘of what purports o be an of- ficlal bond, without proof of its executio, and delivery, Is not suficlent to authoriz the court to render a Judgment aguinst the sureties thereon where its execution and delivery is denfed by them. 2 The sheriff making a judicial sale of real property under a decree of foreclo- sure. 1s the sole custodian of the fund d rived from sich sale between the date thereof and the confirmation of such sale, and upon such confirmation it is his duty to pay the money to the person or persons en- titled thereto In conformity to the order of the court 3. Whether th ra) ment of the money by the purchaser or by the sheriff to the cler] of the court iu vacation, and before 3 firmation of the sale, ix payment Into court, s o chagge the clerk and his on his official bond with its repaym: rmined. the sureties deny the emecution and delivery of the ofclal hond and tne clerk defends on the ground that he merely {fcelved the money &s bailee, and not In offic! capacity as clerk, & Llender of S 22700 The Sugifsa it B0t Impmly the oy of the 5 Liefore & plaintiff in a foreclosure it e BEE: WEDNESDAY, can recover the proceeds of a judiclal sale on his decree he must ghow his’ ht there- to hg proving the confirmation the sale, & Former judgment adhered to. 12790. Western Union Telegraph Company against Nye & Schneider Compan: Lirror from Dodge. Afirmed. Albert, C. Duffie, C.,_concurring. Division No. 3. ‘Where the pegligent delay of a telegraph company In the delivery of a_message de- livered to it for transmission by the plain- UM results In the loss to the plaintiff of a sale of a quantity of corn at a price above the market value of the corn_at the time and place it would have been dellvered hdd such sale been made, the measure of dam- ages is the difference in value between the price the plaintif would have received for the corn had the sale been made and the market value of the corn at such time and place of dellvery, unaffected by the price at which the plaintiff may have disposed of the corn after that time. lfi’-l Chicago, Tl;lrl(n ton & Quincy Rail- road Company against Jroyer. Error from Hamilton. - Affirmed. Duffie, Division No. 3. 1. A shipper of live stock who recelves from the railroad company undertaking the transportation of such stock a free pass, to enable him to care for his stock in transit, assumes such risks and inconvenlences as necesearily attend upon caring for such stock, and, modifled accordingly, the lia- bility'of the raiiroad company to #uch ship. per for personal Injuries sustained by rea- 8on of the negligence of its employes is that of a common carrier for hire, 2 The caboose of a stock train was left about thirty car lengths from the station and the defendant in error and other pas- sengers were directed to leave the caboose and take another which would be attached to a train to be newly made up. To reach the station the passengers were required to walk the length of the train hetween the train and another track elght feet distant from the track on which their train stood. The distance ®etween cars or engines oc- cupying these two adjacent tracks was four feet. ‘While walking along the train a switch engine passed defendant In error, going north. and about the time he reached the south end of the train the same engine returning south overtook and struck him. Held, that while the company might right- tully stop its caboose at the place it did, it was bound to furnish defendant in error a safe passage way to_the station, and that no duty devolved on him to be watchful for any but apparent end known danger, and he would not be negligent In failing to do 80, it being the duty, of the company to re- fraln from any act which threatened him with a danger of which he was not given warning and time to guard against. 577, Barton against Schull. Error from Saline. Affirmed. Pound, C. Division No. 3 1. Under section 18, Code of Civil Pro- cedure, exceptions to the sufficiency of sureties upon a replevin undertaking must be taken within twenty-four hours from the time the undertaking is given: the defend ant is not entitled to the whoie of the day er that on which the undertaking is #iven In which to except thereto. 2 Tt seems that such period of twenty. four hours should be held to begin on the explration of the twenty-four hours from the taking of the property allowed the plaintiff for the purpose of furnishing the undertaking, although the undertaking may have been given befors the explration of that period. 3. Where no exception s taken to the sufficlency of the sureties within the time fixed by “section 189, Gode of Civil Proce- dure, all objections” as to sufficiency are wilved, and the question whether the officer acted in good faith in accepting the unuertaking becomes immaterial 4. In laying the foundation for impeac ment of & witness by showing a_contradic tory statement out of courf, the witness may be asked whether In making the sta ment he did not detafl a conversation with a third person, by reason whereof he claimed to remember the fact stated, and It he denles the whole, proof may be made. not only of the statement itself, but of the reasons he gave for remembering the fact in oontroversy. B. 1t is not error In such a case to exclude testimony of such third person as to the conversation, the conversation itself not being material, but only the fact, if such It were, that the witness In question referred to it'as confirming his memory of the fact in dispute. 6. 1f the trial judge substantially states the testimony In giving his recollec- tions thereof under section 287, Code of 1l Procedure, it is error; but If he merely s to make a complete statement, the party who desires that a further or fuller statement be made, being prosent at the time, should make & request to that effect. and ‘If he makes no request, 1 mere gen- eral excention to the statement of the trial judee will not suffic 18066, IMlannigan agalnst Mathleson. Ap- firmed. Oldham. C. Bfi.l from Douglas. {vision No. 1. 1. A grant of lands may be presumed from acts of exclusive use and continuons occu- pation for ten years or more, when such use and oocupation is accompanied by a claim of ownership. 2. On an appeal in an aquity proceeding error cannot be prediceted on the action of he trial court in the admission of evi- mis- ence examined ard held sufficlent ain the judgment of the district court. 12005, Byrnes against Bley. Affirmed. Glanville, C. Platte. No. 2. 1. When trial has been by the court with- out a jury, reversible error cannot be pre- dicated on ‘the admission of evidence In the absence of an adequate showing by bill of exceptions that improver evidence was ac- tually considered by the court as the basis of its findings. nor upon an exercise of the court’s discretion in allowing proper evi- dence In the case to be brought out on re. direct examination of a witness. 2. Evidence examined and held sufficient to sustain the findings of the trial court. 13108, Martin against Martin. _Error from Thayer Affirmed. Hastings, C. Division 0.1, 1 The proof and allowance of a_will in another state where the testator had his domlcile at the time of his death, if duly authenticated. will be presumed to be in accordance with the laws of that state, 2. 1t {s not necessary to speclally allege the forelgn statute. or to expressly prove that the proof and allowance of the will was In accordance with such statute. 13106. Johnson against Anderson. FError from_Phelps. Affirmed. Barnes, C. Divi- sion No. 2. 1. In an action by a trustee in bankruptey to recover the proceeds of the property of the bankrupt pald over to a credifor on a judgment n completed attachment pro- ceed lnr in his favor. within four months of and before the filing of the petition in bankruptey, it must be alleged in the peu tion that the preference was recelved 'by the creditor having reasonable cause to be- lleve that the bankrupt was insolvent and by suffering the attachment proceedings and jud, it to be taken against him, thereby intended to make a preference. 2. Bvidence examined and found insum- elent tc sus udgment in favor of the plaintift under the provisions of subdivision of section 67 of the national bankruptc of 1598, 3. The trustee in bankruptey may recover money paid by the bankrupt as a preference only when the person receiving it had rea- sonable ground to believe that a prefqrence was_Intended. 4. Held, that the court, In the exercise of & reasonable discretion, properly refuscd to allow the plaintiff to amend his petition, where the ameudment tendered falled (o allege that the defendant, to whom a ay: ment was made by the insolvent. within four months before the filing of the peti- tion in bankruptey, had reasonable ground to belleve that by such payment the bank- rupt intended a preference. 13114 Parker against Knight Templars & Masons Life Indemnity company. Error. from Lancaster. Affirmed. Albert, C. Divi- #ion No. 2. 1. It is & settled rule of this court that it wiil dispose of a case on the theory on which it was presented to the trial court. 2 A permanent walver of a condition in a polley of insurance would not be inferred from occasional indulgence shawn a policy holder 3. No implication of a waiver of the terms of a contract can ise from acts which may be construed a compliance with such terms. rror from Division pan of the assured, regarded as the a not of the company 5. Where an insurance agent in taking the application for insurance agrees with the assured to make the payment falling due on the policy for the assured for a #pecified time, such agreement is not bind- ing on the company, and in making pay- ments In pursuance thereof the agent acts on behalf of the assured and not for the company. 6. A life Insurance policy, by the terms of which the assured was required to pay a ecified amcunt on the first of each month, provided, that if any such payment was 1ot recelved at the Chicago office of the in- surer before 12 o'clock, noon of the day it was due, the risk should be suspendel and such suspension should continue un'il the recelpt of the payment at the Chicago office within thirty days of the date it was due: if not received within that time, or if the insured should die during such sus- pension the contract of the insurance com- pany should ipso facto terminate, altheugh the amount of the payment had been for- warded during the life of the assured. The Insurer arvanged ‘with & bank at L. the residence of the assured, to receive such payments until the date they became due and notified the assured of the authority of the bank (o thus recelve such payment Held: (1) That such arrangement operated s a walver of the place of payment and that payments made to the bank, on or be- fore the date they became due. would pre- vent a_ suspension of the risk, regardiess of the date upon which such payments were et the Sank: In' e Yo preveht s men g ! 3 was be made d_on behalf ne 1s to be nt of the assured and NOVEMBER ' 25, 1908. e e e g Cash Prize The MeTROPOLITAN MAGAZINE is acknowledged to be the magazine for the cleverest there is in short stories, as well as in fiction of all kinds. This reputation we will maintain, and to that end we are making the most lib- eral prize-offers for the best stories that any pullication has ever made. we want to put into the each month is the best fiction that it is possible to get. Full particulars of this prize offer appears in the December (Christmas) 60 Number ages Now on Sale or before the date it fell due and if made | after that date the risk would stand sus- | Jended until payment was received at the lome office within thirty days of the date it became due and during the life time of | the assured; If not thus received the in- surance Ipso facto terminated. from Laacaster. le, C." Division No. 3 1. A bond executed by the administratrix of an estate comditioned that she will re- imburse a_proposed purchaser of certain lots belonging to the estate, upon which a_mortgag s being foreclosed, any @amount in excess of §12,000 which he might be compelled to bid at the foreclosure sale d as against publi¢ policy ne against Spense. rro m Reversed. Ames, C. Division No. 1 1. In an action hy a husband against his father-in-law for ‘allenating the affeciions and enticing away the wife of the former, such damages only are recoverable as are the natural and probable consequence of the act complained of, or are due to the negligence or wrongful conduct of the de- fendant connected therewith. 3 against Lattimer. Aftirmed. rror, Barnes, C. Di+ 1. In a bastardy proceeding, & complaint in which it is stated that the complainant In an unmarried ‘woman, residing in the county where the complaint was filed, and that on a certain day immediately pre- ceding its filing, she was delivered of a bastard child, and that the accused is its tather, is sufficient to sustain a verdict of guilty, and a judgment thereon when assalled for the first time in the appellate court. 2. The matter of allowing interrogatories of ‘a leading character to be put to a wit- ness rests in the sound discretion of the trial court, and a clear abuse of sucn dis cretion must exist to work a reversal 3. The refusal to allow the introduction of ‘evidence to dispute the testimony of a witness upon an immaterial matter ls not reversible error. 4. Where evidence is introduced by an accused for the purpose of establishing an bi, testimony which tends to dispute ch’ evidence may be properly received in rebuttal 5. Where the record contains competent evidence from which the jury may have reasonably arrived at their verdiet, the judgment of the trial court will not be reversed for wan€ of eviderce to sustain il, 6. Where the alleged nevly discovered evidence is merely cumulative, and it ap- pears that the witnesses named in. the affidavits were all upon the witness stand and testifed during the trial, and no ex: cuse is shown for thelr not disclosing all of the facts known to them at that time, a motion for & new trial, based on that ground, should be overruled. | 13814. Weston against Ryan. Error, from Lancaster. Reversed and diymissed. 'Hast- | ings, C. Oldham, C. (concurring). Ames, | C." (concurring). Division No. 1. | 1. “Changes or modifications of existing statutes as an incidental result of adopting a new law covering the whole subject to which it relates, are not forbidden by sec tlon 11, article Iii, of the constitution.” 2. It 'is for the legislature to determine as to (he applicablilty of a general law | to a given emergency and as tos the con- soquent propriety or otherwise of a special law. 3, This court will not undertake to say as to the act of February 23, 1387, under which the ballots as to the idor fon of the amendment to section 4, article #ii, of the state constitution were counted and | the result declared, that a general law would have been applicable, and that the act in question was therefore unconstitu tional. 4. Something more than mere frregularl tles and improprieties in declaring the re sult of an election should appear to war- ront this court In attempting to set aside the solemn acts of the legislative bodles and the executive of the state as to the fundamental law of the state, espec after such legisiative and executive act has been acquiesced in for sixteen year Ames, C. (concurring separately) 1. The submission by the legislature to the electors of a proposed constitutional amendment is not a legislative ot. In making such a submiseion the legislature acts in a capacity strictly analogous to that of a constitutional convention and are subject to such constitutional restric- tions and Iimitations only as have direct reference to the exercise of that power. An act is not obnoxious to the con- stitutional inhibitlon against special leg! lation If the subject with which it dedls is_special and particular in its natube 3 e\'vu 1 4 proposed constitutional amend- sen duly submitted Lo the peo- prescribed regulations with | reference to the manner of countiog, can- | vassing or returning the ballots, or as- certaining or authenticating the result of the election, 14 Is competent for the legis- lature to provide by special enactment for s0 doin L9068, Oimaha Gamble and 1388, | Omaba against bank. Af- on stipulation pinion in ha against Hodgskins 1306 The following opinions be of- ficlally reported: 3 inst Wilson. Appeal from reed Inst. Ames, C. Divi- ment has ple without againet Rutlend Savings following No. will not | occur | recover partners touching the nature or amount of services to be rendered by each in the progecution of the common enterprises, one | partier 18 not entitled to -eumpenunm\‘ or extra attention, labor or Bervices | devoted to the partnership business, but | by agreement with his assoclate he may become so entitied Mutual promises afford a considera- tion for each other sufficient to constitute a binding contract bhetween the parties making them, to do the things promised 3.In the absence of stipulations eviden. ing a different intent, an employment of an_attorney ‘to prosecute a claim to | recovery terminates with the rendition “‘1 a judgment thereon and the exhaustion | of the usual legal process upon the judg- ment. It does not Include the prosecution | of subsequent agtions and proceedings to | reach the properly of the judgment debtor | or to enforce llability against his sureties | upon_ supersereas. 12414. Hagsett against Harlan county ror from "Harlan. Former judgment cated; judgment of the district versed. “Barnes, C. Division No. ported. | 1, Sectlon 21 of article 1, of the Consti- tutlon, provides that private property can- not be taken or damaged for public use without just compensation. ~Therefore @ land owiler cannot be required to sur- render his land for a public road until his damages are first ascertained and either paid or proper provision made for | their_payment, 2 Where a resolution is adopted by a board of county commissioners or super- | visors preparatory to establishing a road | within a county for which they are act ing, either without jurisdiction or without, | having proceeded upon proper notice to ! ascertain the damages to property owrers caused thereby, and without having paid such damages or made sultabie provision for thelr payment, the appropriation does not take place until the road Is actually opened for public use. 3. In such a case the right to recover the damages accrues to the person who owns the land when the road is actually 4. The fact that the person who owned the Jand when the resolution was gdopted, asked leave to present a claim for dumages, hich request wrs refused by the board 4 an attempted appeal from such re- has becn dismissed, i8 no defen by the owner of the land at the time the road was actually opened, 0 _recover his damages therefor. 13008, Backes against Black. Error Wayne, Reverstd. Barnes, C. Division * Unreported. 1. A vendee who has entered into a vaild written contract for an_absolute sale of specific articles of personal prop- erty in which the articles are described the price agreed upon and the date amdi place of delivery fixed, cannot terminate the contract by simply’ glving rotice that he will not accept the goods. In such a case the vendor may proceed | with his part of the agreement and de- | liver the goods, or tender them (o the | vendee and a breach of the contract will when the vendee refuses to ac- cept them and pay the purchase pri therefor. 3. 1f a vendee In an executory contract of sale, or where the title to the property has not passed to him, refuses to per- form, a right of action for damages in fayor of the vendor for the inju loss he has sustained by reason of | breach of contract, and this Is ordinarily, | or generally the difference betwcen the | market value of the property at the time | and place of delivery and the price fixed by the contract. Funk against Allen, b Nebraska, 407, approved and followed 4. An answer in an action in form to re cover as damages the agreed price of the goods under such contrac that after the contract wa dee notified the ve accept the goods, and or tendered he had refusec without giving any reason or excuse there- | for, does not staie a complete defense to such action 5. Held, that stipulated facts to recover at that a judgme be_reversed 13012, Tichs Simecek Affirmed. Duffle, (., Unreported 1. Objections to a examined and hel 13064, MoAllister vs. Affirmed. Barnes, C Unreporte: 1. Wh stock u (usal to an actien from No. signed the ve would not n delivered | under the pleading | the plaintiff was entitled st nominal damages. and t for the defendant should | ve, Appeal, Saline. Department * No. & sale and confirmation insufficient Wrede Dep Erro rtment Holt No. ¢ the tuker up of trespassing er the provisions of chap: of the Compiled Statutes, commonly called | the “herd law ' by his notice makes an | fllegal demand on the owner as a condition for its delivery. the owner may refuse omply with such fllegal demand payment of the amount of damages done by such stock, and maintain replevin to its possession 2 In such @ case (he owner. in mining the amount of the tender, acts at his peril. For if the damages are shown to | exceed the amount tendered he will fail in his action. 2. Evidence of plaintiff in an action for personal injuries recelved In a collision with & raiiroad uger train at a public Sroasitg, st out In opinion, and heM to show contributory negligence. detes We care not who the authors are—whut DR. 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