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Held, that under the circumstances of the case, the verdict of the jury should not be disturbed. Id.

98. PENETRATION IS ESSENTIAL ELEMENT OF CRIME OF RAPE; but proof of the carnal knowledge of a female against her will by force is proof of rape. Id.

CURTESY.

HUSBAND CANNOT BE TENANT BY CURTESY OF LANDS OF WHICH HIS WIFE WAS NEVER SEISED; and if he sells his interest, and, as guardian, that of his children also, in lands of his deceased wife, of which he was tenant by the curtesy, and invests the proceeds of the sale in other lands, the title to which he takes to himself as guardian of his children, he will not be entitled to curtesy in the lands so purchased by him. Bogy v. Roberts, 210.

DAMAGES.

See CORPORATIONS, 16, 17; EMINENT DOMAIN; NEGLIGENCE; NUISANCE; VENDOR AND VENdee, 2.

DEBTOR AND CREDITOR.

See CORPORATIONS.

DECREES.

See JUDGMENTS.

PEEDS.

1. DESCRIPTION OF LANDS IN DEED, OR IN COMPLAINT, as a particular quartersection, "except two acres in the southeast corner," is sufficiently certain and definite; the exception in the description being construed to mean two acres in such corner, lying in a square, and bounded by four equal sides. Green v. Jordan, 711.

2. GRANTORS CANNOT AVOID GRANT on the ground of their illiteracy and want of understanding of its terms, when, though they cannot read and write, they speak the English language reasonably well, are persons of ordinary understanding, and not negligent of their interests, and when the grant was executed it was read and explained to them, and they fully understood its contents and terms. Bingham v. Salene, 152.

See CHARITABLE USES; CONDITIONS; EVIDENCE, 3; FRAUDULENT CONVEYANCES; STATUTE OF LIMITATIONS, 5; VENDOR AND VENDEE.

DEFINITIONS.

LAW IS SYSTEM OF RULES AND PRINCIPLES, in which the rights of parties are protected and enforced, and it is the duty of a court to disregard mere pretexts, and decide a case, if possible, upon the merits. Cortelyou v. Maben, 284.

EASEMENTS.

1. GRANT IN PRESENTI OF SOLE AND EXCLUSIVE RIGHT AND PRIVILEGE TO SHOOT, take, and kill any and all wild fowl upon and in any lakes, sloughs, or waters situate upon the lands of the grantor, and of the right of ingress and egress to and from said lakes, sloughs, and waters for such purpose, is a grant of a profit a prendre, and not a mere revocable license; and while the privilege granted is sole and exclusive, its use is

limited to the places designated, that is, the water lying upon the lands of the grantor, and must be so exercised as not to injure his crops or stock; nor does the grant authorize the indiscriminate giving of permits to numerous persons to exercise the privilege, though the grantee may sell or assign it. Bingham v. Salene, 152.

2. RIGHTS EXERCISED BY ONE IN SOIL OF ANOTHER, accompanied with participation in the profits of the soil, are termed profits a prendre. They differ from easements in that the former are rights of profits, and the latter are mere rights of convenience without profit. Id.

See EQUITY, 6.

EJECTMENT.

1. TO SUSTAIN EJECTMENT, OR STATUTORY ACTION IN NATURE OF EJECTMENT, except as against a mere trespasser, the plaintiff must have a legal title at the commencement of the suit, and a title subsequently accruing will not authorize a recovery. Green v. Jordan, 711.

2. PLAINTIFF IN EJECTMENT, OR STATUTORY ACTION IN NATURE OF EJECTMENT, MAY RECOVER on proof of prior actual possession only as against a mere trespasser in possession, without regard to the validity or sufficiency of the muniments of title offered in evidence to support a recovery. Id.

3. TAX RECEIPTS, SHOWING Payment of TAXES ON LAND BY ONE IN POSSESSION, are admissible in evidence for him as tending to show both a claim of ownership and the extent of the claimants' possession. Id.

ELECTIONS.

1. PROPER AND REASONABLE REGISTRATION LAWS ARE VALID, not as imposing upon the elector an additional and necessary qualification, created by statute, but as a method of proving the existence of the qualifications required by the constitution. State v. Corner, 267.

2. LEGISLATURE MAY REQUIRE REGISTRATION OF QUALIFIED VOTERS, under reasonable restrictions, as proof of the possession of the qualifications prescribed by the constitution; but it should be left within the power of the voter to prove himself to be an elector, and to register and vote at any time prior to the closing of the polls on election day. Id.

3. REGISTRATION LAW WHICH ABSOLUTELY DEPRIVES ELECTOR OF RIGHT TO VOTE, unless registered on one of four days, the last one being ten days prior to the election, is void, as violating the provisions of the Nebraska constitution, article 1, section 22, that “all elections shall be free; and there shall be no hindrance or impediment to the right of a qualified voter to exercise the elective franchise." Id.

4. NEBRASKA ACT, LAWS OF 1887, CHAPTER 39, ENTITLED “AN ACT TO AMEND THE ELECTION LAWs," etc., is in contravention of that clause of the state constitution (art. 3, sec. 11), relating to the amendment of laws, and is void. Id.

EMBEZZLEMENT.

See CRIMINAL LAW.

EMINENT DOMAIN.

1. DAMAGES ARISING FROM APPROPRIATION OF LAND by railroad company, whether prospective or otherwise, must all be recovered in one action. Indiana B. & W. R'y Co. v. Allen. 650

2. DAMAGES WHICH NATURALLY AND PROXIMATELY RESULT from the construction and operation of a railroad are properly recoverable, but remote or purely speculative damages cannot be recovered. Id.

3. JUDGMENT OF DISMISSAL OF PROCEEDINGS FOR ASSESSMEnt of DamagES upon the appropriation of private lands by a railroad company is conclusive between the parties upon collateral attack, even though erroneous. Id.

4. RAILROAD COMPANY COMING INTO POSSESSION OF LANDS as the successor of a trespasser must pay all damages inflicted by the latter. Id.

EQUITY.

1. EQUITY EXERCISES SOUND DISCRETION, without adhering to any inflexible rule, in determining whether there has been a misjoinder of parties. Fillmore v. Wells, 567.

2. LEGAL TITLE TO LAND CANNOT BE TRIED IN SUIT TO REMOVE CLOUD from the title, and the plaintiffs in such suit asserting the legal title are not entitled to relief against the defendant claiming title as purchaser at a tax sale made under a judgment rendered in an action to which said plaintiffs were not made parties. Fontaine v. Hudson, 515.

3. UPON BILL FOR REFORMATION OF WRITTEN CONTRACT on the ground of mistake, whether it is necessary to allege and show a prior request for the correction of the mistake, quære. Miller v. Louisville & N. R. R. Co., 722.

4. EQUITY HAVING ACQUIRED JURISDICTION for one purpose strictly equitable will dispose of the whole controversy, even though, in so doing, it may be called on to administer relief which pertains to courts of common law. Id.

5. DECREE IN ACTION TO QUIET TITLE to land operates to determine all claims to interests therein, whatever their form or character, existing at the time the decree is rendered. Indiana B. & W. R'y Co. v. Allen, 650. 6. EASEMENT CLAIMED BY RAILROAD COMPANY TO CROSS LAND of another will be cut off by a decree in favor of the owner of the land, in an action to quiet the title thereto, where such easement is not protected by the decree. Id.

See AGENCY, 5; ATTORNEYS AT LAW; JUDGMENTS.

ESTATES.

COURTS OF LAW TAKE NO COGNIZANCE OF EQUITABLE ESTATES, and deal only with legal titles. Green v. Jordan, 711.

See CONDITIONS.

ESTATES OF DECEDENTS.

1. WHERE WILL CONFERS POWER OF SALE ON EXECUTOR, the probate court has no jurisdiction to grant an order for the sale of decedent's lands, either for payment of debts or for distribution; and when the petition for sale shows that there is a will, it must affirmatively appear that no power to sell is conferred thereby. Wilson v. Holt, 768.

2. PURCHASER AT PROBATE SALE WHICH IS FOUNDED upon a petition which does not contain the averments necessary to give the court jurisdiction, acquires no legal title which he can convey; but he may acquire an equity enforceable against the heirs who receive their shares of the purchase-money. Id.

3. DEET OF DEVISEE TO TESTATOR CANNOT BE CHARGED ON LANDS Devised TO HIM by the testator, in the absence of language in the will making such debt a charge. La Foy v. La Foy, 302.

See CORPORATIONS, 28.

ESTOPPEL.

MATTER OF ESTOPPEL IS AS CONCLUSIVE WHEN ADMITTED IN EVIDENCE as if Pleaded, when there has been no opportunity to plead it. Young v. Brehe, 892.

EVIDENCE.

1. WHEN FACT IS PECULIARLY WITHIN KNOWLEDGE OF PARTY, he must produce the necessary evidence to prove it. Weber v. Rothchild, 162.

2. WHERE TWO WRITINGS RELATE TO THE SAME SUBJECT-MATTER, bear even date, are between the same parties, and executed at the same time, they must be taken together and held to constitute but one entire transaction, in the absence of evidence to the contrary. Id.

3. IT IS UNNECESSARY TO PRODUCE DEEDS OR OTHER WRITINGS, or account for their absence, in order to legalize a mere incidental mention of their existence by a witness, no attempt being made to prove their contents or legal effect. Green v. Jordan, 711.

4. UNANSWERED LETTER IS ADMISSIBLE IN EVIDENCE AGAINST THE PERSON RECEIVING IT, and to whom it was addressed, if it appears to have been invited by him, and to have been written in response to some previous communication by him. Spies v. People, 320.

5. RULE THAT PAROL EVIDENCE CANNOT BE ADMITTED TO VARY, EXPLAIN, OR CONTRADICT WRITING is confined to the parties to the writing; and when it comes in question collaterally between one of the parties and others, neither party is estopped to contradict or explain it. Coleman v. Pike Co., 746.

6. IDENTITY OF NAME IS PRIMA FACIE EVIDENCE of identity of person, and is sufficient proof of the fact, in the absence of all evidence to the contrary.

Wilson v. Holt, 768.

7. THE INTENTIONS OF MEN CAN ONLY be Determined from their acts. Spies v. People, 320.

8. OPINION EVIDENCE.

In an action against a railroad company for personal injuries sustained by the plaintiff, caused by a steam-shovel, the testimony of the person who was operating the shovel, that "after it had started, and plaintiff had placed himself under it, no human effort could have prevented the lever or the bucket from swinging to its accustomed place," is not the statement of mere opinion, but of the result of personal observation and knowledge as to a collective fact, and may be properly received in evidence. Alabama G. S. R'y Co. v. Yarbrough, 711. 9. OBJECTIONS TO EVIDENCE, TO BE OF ANY Avail, must be REASONABLY SPECIFIC. It is not enough to state that the evidence is incompetent, immaterial, or irrelevant; but the particular objection must be fairly stated. Ohio & M. R'y Co. v. Walker, 638.

10. GENERAL OBJECTION TO WHOLE OF WITNESS'S EVIDENCE AS IRRELEVANT must be disregarded, if any part of such evidence is adınissible. St. L., I. M., & S. R'y v. Hendricks, 220.

11. BY DEMURRING TO EVIDENCE, DEMURRANT WAIVES ALL EVIDENCE on his part that conflicts with that of the other party, admits the credit of the evidence demurred to, admits all inferences of fact that may be fairly

deduced from the evidence, and refers it to the court to deduce all fair inferences from the evidence. Jones v. Old Dominion Cotton Mills, 92. See CRIMINAL LAW; ESTOPPEL; Negligence; New Trial; PLEADING and PRACTICE; RAILROADS, 6, 7; SALES.

EXECUTIONS.

1. RIGHT TO EXECUTION FOLLOWS EO INSTANTI, UPON RENDITION OF JUDGMENT. The rendition of the judgment is the judicial act upon which the execution rests. Its entry upon the record is a mere ministerial act evidencing the judicial act, but not essential to its validity, or giving to the judgment any additional force or efficacy. Fontaine v. Hudson, 515. 2. VALID JUDGMENT RENDERED WILL SUPPORT AND VALIDATE EXECUTION issued in conformity therewith, although the formal record evidence of its rendition may not have existed at the time the execution issued. It is sufficient if the record evidence is in existence when proof of the judgment becomes necessary. Id.

3. ACTION FOR DAMAGES DOES NOT LIE against a circuit clerk who wrongfully issued a writ of venditioni exponas, commanding the sheriff to sell certain lands in the plaintiff's possession which had been previously levied on by an execution against another. The issue of the writ in such case, and the sale thereunder, did not affect the right, title, or possession of the plaintiff, and the costs, expenses, and attorney's fees necessarily incurred in defense of a suit brought by the purchaser to recover possession of the lands alleged as special damages, not being the natural and proximate consequences of issuing the writ, the action cannot be maintained. Eslava v. Jones, 699.

4. PURCHASE BY STRANGER IN GOOD FAITH, AT EXECUTION SALE, WILL BE PROTECTED from secret infirmities, and mere inadequacy in price will not avoid such sale, unless knowledge of some vice in the sale or some misconduct or wrongful act on the part of the purchaser be shown. Carden v. Lane, 228.

5. WHERE SHERIFF'S SALE OF LANDS UNDER EXECUTION IS SET ASIDE, and the deed vacated, after the purchaser has entered into possession, his continued possession thereafter is that of a mere trespasser Green v. Jordan, 711.

6. MONEY WHICH IS ABSOLUTELY EXEMPT IS NOT SUSCEPTIBLE of fraudulent alienation, and the debtor may make any disposition of it he sees fit, and plead the exemption, which, if proved, is a complete defense to any pro. deeding to apply the money to the payment of a judgment against him. Union Pac. R'y Co. v. Smersh, 290.

See EXEMPTIONS.

EXEMPTIONS.

EXEMPTION LAWS OF ONE STATE CANNOT AVAIL DEBTOR in a suit instituted against him in another state; and a garnishee in the latter state cannot make the defense available to the debtor, and is under no duty to attempt it. East Tenn. R. R. Co. v. Kennedy, 755.

See EXECUTIONS, 6

FORGERY.

See BANKS AND BANKING.

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