Omaha Daily Bee Newspaper, November 10, 1893, Page 5

THE OMAHA DAILY BEE: FRIDAY SLASHED HIM WITH A RAZOR Guy 8t. Olair on Trial at Lincoln for As- saultiog William Hall, DETAILS OF THE PRAIRIE HOME AFFRAY ow the Prisoner Resented the Efforts of in His tor His Big Antagonist to Interfe Afluirs — Canvassing Lan County" Lascory, Nov. 0.—[special to Tuw Bee.|— Guy St. Clair, the young man who assauited William Hall at the little town of Prairie Home, in this county, one week ago last Sun- day, was up jor trial before County Judge Lansing today. Heo sets up the plea of self defense. The evidence as brought out in the wrial duriug tho day may be summarized as follows St. Clair and Hall were formerly friends and neighbors on adjoining farms near Prairie Home. They quarrcled over a set- tlement of some of their small business ven- tures, St. Clair claiming that Hall owed him money which the latter refused to pay. They had practically came to blows over their differencos several times, but had always separated before anything of a seri- ous nature developed. Hall is much larger physically than St. Clair, and would un- doubtedly be able to badly worst him ina square, up and down fight. St. Clair now lives with his granafather near this city, but on the Sunday that the alleged nssault took place he was at Prairie Home visiting_a friend. ~He was standing near the postofice when Hall rode into town. Hall dismounted from his horse. St. Clair walked across the street to a well to get a drink of water. While he was thus engaged Hall grabbed him from behmd, hustled him aroond in a lively manuner and threatened to kill him if he ever showed his facen that art of the country again. Hall then shuffled is antagonist some more and then St. Clair thought that 1t was his turn to cut and he did so—with a razor. Then Hall storted to run, but tripped and foll. St. Clair took ad- vantage of him and used the razor with tell- ing effect across the face of the prostrate man, inflicting a painful but not serious wound. Counting the Votes. The county canvassing board, consisting of J. D. Woods, county clerk, W. L. Brown and S. W. Chapman, commenced the work of counting the ballots cast at the election in Lancaster county last Tuesday. The worlk progressed very slowly all day, owing 10 a large number of “tickets that had been scratched and also the number of small precinet oftices. Three precincts ave still missing. those from Firth, West Oak and Olive Branch. ‘The count will Hardly be completed for several days and the ofticial figures are not likely to be anuounced before Monday. Loss than twenty precinots had boen counted today. No additional figures on the state ticket can bo given over those published in Tne Ber this morning. THEIR IDEA OF VICTORY. Tin Horn Etoment ot Hastings Celebrates the Klection of Harrison. Hasrivas, Nov. 9.—[Special T'elogram to Tur B A number of the Hastings ro- publicans celebrated with the aid of a couple of bands and a drum corps the elec- tion in a rousing manner. An effort was made to collect the remains of tho Hastings Flambeau ciub and quite a good sized crowd turned out. One indiscretion marred the occasion. A number of the Rosewateropho- bia tin horn crowd of the city made a head- less efigy, which was carried before tho flag in_the procession, laveled “Traitors, Maxwell and Rosewater.” This exhibition of petty spite disgusted a large number of the republicans of the city who otherwiso would have heartily participated in the Jubilee. Prof. W. E. Andrew, the governor's pri- vate secretary and tho candidate for congress a year ago, addressed the crowd. ‘The hauging of Maxwell and Rosowater in efigy is repudiated by the better element of the party. PresidentJ. N. Clarke of the Hastings Republican club stated that he had nothing to do with the buffoonery, which he regardod as in very bad taste and utterly uncalled for. Vice Presiaent Ferris of the club was of the same opinion. He wasn't a atrong admirer of Rosewater, but thought that the election which was being ratified was fought for principles and not on person- alities. E. C. Webster, central committeeman from Adams county, strongly disapproved of the performance and said that had he known it in time he would have used his strongest efforts to have prevented the disgrace to the republicans of Hastings and Adams county, and he aeclared that whatever might bo the personal opinions of the two men it showed baa taste and breeding to resort to any such measures to show their disapproval. 1t wasn't souna republican doctrine, DODGE COUNTY'S OFFICERS. What the Think Fresoxt, Nov. 9.—[Special to Tne Bee.] — The following are the officers of Dodge county as decided at the late election: County treasurer, N. P. Nelson of Logan; sheriff, James Milliken of Ploasant Valle county judge, Claus H. Plambeck of Fre- mont; county clerk, Wenzel Legro of Web- ster; superintendent of public instruction, J. A. Collins of Hooper; register of deeds, George F. Looschen of Fremont; county sur- yeyor, George W. D. Reynolds of Fremont; coroner, Dr. E. W. Martin of Fremont; rep: resentative, to fill vacancy, B, F. Farrell of Union, In the cityJ. A. Elliott and W. F were re-clected supervisors, J. V and Waldo Wntersteen justices of peace, James Noe and W. Mooney con- stables aud George Forney asscssor, The democratic majorities of the county were unusually small and the general senti- ment is that if Maxwell had been on the ticket every republican candidate would have been clected, and Hon. John Dern gave it as bis unqualified opmion that in such cir- cumstances the state would have gone re- publican with & majority corresponding to that of lowa aud the eastern states, Wesley C. Brown, who was reported miss- ing under suspicious circumstances, has turned up in Hastings, where he has sworn out a warrant sgainst his wife. Rosa, who had sued him for divorce for adultery, and claims that he is now uvenged and is pr pared to live awhile longe Tuk Bre is very popular now in this city and county for its able and honorable stand for Judge Maxwell and the right, and as for its eaitor, vituperations against him are . without avail, Kauven a Kepabiiowns Celebrate, RAvVENNA, Nob, Nov. 9. Special Tele- gram W Tue Bee.]—Ravenna republicans are jubilant tonight and the streets are ablaze with torches, colored flambeaux and green five, and the discordant tin horn is making itself manifest. Republican enthusi- m over the clection of Harrison was added _t0 by receivt of news that a part of the conuty vicket, includivg 1. H. Wilsey of this city, candidate for superintendent was elected, and a torchlight procession, headed by the 'band, was soon making the rounas, The procession halted at the residence of Mr. Wilsoy, and that geutlemsn made a .sbort aadress, thanking his fellow citizens for their cordlal support during the cam. paign, and_expressed his gracification over l::wrnwbncnn ! in the county ana state. W. B, Brown Eleciod. HastiNgs, Nov. ¥.—Special Telegram to Tur Bee. |—W. B. Brown of Hastiugs, the republican nominee for represcutative from .tho Forty-sixth district, is elected over Pitney of Inavale, Webster couuty, by a majority of 315, Brown careying Adams by 425 and Pitney Wobster by 145 This vacancy is occasioned by the removal of Fravk P. Harmon w Oklaboma last fall Brown was the republican nominee then for the oftice, but was defeated by Harmou. Faled t1 Keturn the Proprety. Youk, Neb., Nov. §.—[Special Telegram to Tux Be Yesterday morning & young waa hirea a borse and cart at Southworih's Jivery barn to go about ten wiles wto the country. saying that he would return in the afternoon, Nothing has been seen of him yot and it is believed that he has stolen the outfit. He is about 23 years old, light mustache, weighs 150 pounds and is aoout five feet ten inches tall. When last seen ho was going southeast David City Newspaper Change, Davip City, Neb., Nov. 0 Bee.|—The Republican has passed into the control of Frank L. Lemon, editor and pro prietor of the People’s Banner, and the two will be consolidated and run s a populist sheat Mrs. Chowning, wife of I H proprictor of tho Palace ho! presented her h Chowning, last night sband with twin girls. Marcled nt Nebruska Clty. Nemuaska Orry, Nov. 9.-—[Spocial Tne Bee)—Amos Barton of Batavia, Ill., and Miss Maude Sloan were married at the residence of the bride's parents in this city this morning. 'The bride is the daughter of Mr, and Mrs. W. 'L Sloan, one of the oldes and most highly respected familiss of this nd the groom is a prominent pusiness 1 of Batavia egram to Tue Bee.|—A number of large barns belong- ng to Frank Taylor mysteriously caught fire early this morning and wero totally aestroyed. The buildings were just outside tho city limits ana beyond the protection of the fira department. A valuable horse is missing. Tablo Rook Ladies In Politie Tante Rock, Neb., Nov. 0.—[Special to Tue Ber. ]—The feature of election day here was the parade of the Woman's Suffrage club from one poll to the other. Quite a number of leading ladies took partin this domonstration. M AMUSEN 'S, Folix Morris at tho Boyd, Coming in a measure unheralded, except as he was well remembered by old theater- goers when in Rosina Vokes' company, Mr. Felix Morris roceived a very cordial welcome at Boyd's last evening. The portrait gallery to which he invited inspection was filled with characters made famous by the masters of good English comedy in days gono by, now only brought forward for some old- timers' benefit or farewell to the boards, Major Wellington De Boots, one of John Sleeper Clarke's most delightful imperson- ations, lived again through Mr. Morris’ de- lightful playing last night. “Cousin Joe,” honiely, uncouth, but with a heart as large as his body—an unpolished diamond in a rustic setting —brought ripples of hearty laughter from the audience, that ap first, very passive and inclined to be ex- tremely critical, warmed to the actor who displayed' so much versatility. But it was in _ tho dainty vrose poem, “The OIld Musician,” companion piece to the “Professor's Love Story Mr. Barrie, that Mr. Morris gave the audi- ence as fine a bit of playing as’ seen on the local stage in years. It was well nigh fault- less in development, played in & minor key that charmed with 'its touch of real pathos. In make up and in dialect it was quite worthy of a place alongside Mr. Willard’s beautiful portrayal of the professor. Mr. Morris is essentially a splendid ‘“‘character” actor. here are crudities hero and there in his work, which one must expect in an actor who has still much to learn, but this, to the player's credit, there 18 no one on the American stage today who can play so many varied parts and play them so thoroughly well. In Major De Boots Mr. Morris is not at his best, but as Cousin Joe he is perfect. The company has been carefully selected and gavé vho star most intelligent support. Mr. Arthur Byron, the leading man, is a capable actor, seen here last with Sol Smith Russell in “Peaceful Valley.” Miss Jane Stuart, who plays ingenues and soubrettes, was delightful throughout, particularly as Margery in “Cousin Joe. Mr. Kendall Weston also plays well, which can also be said of pretty Mrs. Dellenbaugh. Tonight *“Champagne” and *‘Cousin Joe" will be the bill. Minstrels at tho Fiiteenth Street. Barlow Bros.’ minstrels opened a three nights engagement at the Fifteenth Street ter last night to a packed house. Every scemed to anticipate a rare treat m the minstrel lme, and it is safe to say that no one went home disuppointed. Ivery feature and turn in the show s bright, clean and fivst-class. The cur- tain raises on o protuy set, first part with the orchestra seated on'a balcony to the rear of the circle of artists. The beautiful salmon-colored drapery for a background a charming effect to the sotting. thing goes off with a dash and jingle that is appreciating. Nothing drags or 18 ‘“chestnutty.” Billy Barlow is as funny and cutertaining as ever and has solected a good company all around. All tho dancing ine. Scott in his act, “The Frog's Pastime,” made a great hit. He' is a contortionist who fow equals, Markham and Berry's musical act is deserv- ing of special w It is both funny and musical in the extreme. Morrissey brothers are hard to beat their rough and tumble dancing and acrobatic work. The Keunard brothers in their pantomime novelty together with their donkey “Budge’ seemed o please the audi- ence immensely. The show closes without inflicting a_senseless afterpiece and while the Rarlow brothers have not attempted to depart in any degree from the old style minstreisy they have bunched a company of “all star” people and deservo the bix success they are having in this section. Their en- gagement closes Satur nignt. o WEARY OF THE WORLD. in Cora Banks Swallowed n Deadly Doso of Morphine Last Evening, Cora Banks committed suicide last even- ing by taking morphine. She is a colored woman who came here from Kansas City about two months ago, and has since been a resident of the proscrived district. She has been living at the corner of Ninth and Capitol avenue since coming here and she has been on 4 protracted spree dur- ing the past week. After quarreling with her lover the woman secured & quantity of morphine of Y04 Capitol avenue in_an ous condition and soon died. The woman has a sisier in Lincoin and loaves a f-year-old girl in Kan- sas City. Her parents are dead. ——— WEATHER FORECASTS, It Will Be Fair Throughout the State Nobraska Today. WasniNaton, Nov. 9.—Forecasts for Friday For Nebraska and lowa—Fair; south winds, for South Dakota—Iair south, shifting to west winds; night. or Priday, with \der Frida Local Record, Orrior oF THE WEATHER BUREAU, OMAlA, Nov. 9. —Omaha record of temperaturo and ramfall compared with corresponding day of past four years 1893, 1892, 1891. 1890. Maximum tomperature 042 492 545 803 Minimum temperature. 852 802 830 202 A s temperaturo.. 512 402 442 252 Precipitation 00 00 00 T Statement showing the condition of tem- and precipitation at Omaha for the day nnd since March 1, 1803; Normal temporature Excess for the da a0es Deficiency siuce Marc Normul precipitation A Detiolency for the day. {04 ineh Deticioncy since March 1. 98 lnches Repores from Other Stations at 8 p, m 422 92 82 04 Inch 23 STATIONS. | ~gep jo aamae -abdwiay, Xv arney ...l Norih Platie Valvatine. Chilcugo St. Louis. St Faul 00 Fogiy 00| Clear. 00/ Clear. 00/ Clear. Deuyver. Balt Lako Ciiy. Rapid vy Melona 00 i 00| Part 00 ¢ 00| Cloudy. 00! Clear. GEukGE E. HoNT, Local Forecast Ofclal |Special to T | to | SUPREME COURT DECISIONS Barrett Scott Given a Chance to Be Heard in His Own Behalf. SUIT AGAINST EX-TREASURER HILL SET One Week from Next Monday the Court Wil fear the Case to Determine the Question of Jurisdiction—Opin- tons Handed Down, Lixcory, Nov. 9. —[Special to Tus Bee.] The supreme court today granted Barrett Scott permission to be heara in his own benalf before the referes in his case, in which he seeks to mandumus Judgo Kinkaid to reduce his bail from $0,000 to a figure within his reach. The referee is still tak- ing testimony in Holt county and it is likely to be some time before the supreme court makes a final order in the case. The court announced that the case of the state against ex-Treasurer Hill would be taken up on Monday, November 20. This is the case in which Judge Davis of the Fourth Judicial district decided that the Douglas county courts had no jurisdiction. Judge Wakeley and Attorney General Hastings appeal from this decision. Judge Wakele, will file his brief in the caso tomorrow or Saturday. Among the opinions handed down were many of interest to every body, while nearly every one covers a point of importance o tho attorney in practice. One relates to the liability of railway companies 1in suits brought for damages for personal injuries, another to the relation of master and servant under the same circumstances, while several refer to the law governing real estate or commercial transactions. Following are the syllabi: in the Court's Opinion, First National bank of Wymore against Moyers ot al. Error from Gage county. Afirmed. Opinion by Mr. Chief Justice Maxwell. In editors’ bill to subj certain real es- tate of a debtor conveyed to third parties to the payment of a judiment upon the ground that there was no ‘consideration, held that a suflicient consideration was proved and the deed would be sustained. First National bank of Mount Pleasant against Davis. Appeal from Douglas county. Afirmed. Opinion by Mr. Com- missioner Ryan. The question in this case being merely whether or not two certain chattel mortgages covered property sold, and the evidence beinz Insufliclent to ostablish the identity claimed, the mortgagee's ¢ m oof alien upon the prop- erty is denied. Greer against Canfleld, county. Affirmed. Justice Maxwell. A vorbal submission of the matters in con- troversy between partios who -appear volu tarily and tzstify themselves and produce witnesses in support of thelr respective cluims wilLif fairly conducted, be sustained aftor tho making of the nward. The fact that neither the witnesses nor the arbltrators were sworn when no objection is mude on that ground will not invalidate the award. The claim that the award was made on Sun- it held. Not sustained by the proof. Whoere matters In controversy are submitted to arbitrators, proof taken and nn award mado and an nction brought thercon, an answer which falls to show that the arbitrators ex- cecded thelr powers or did not conslder souio of tho mattors submitted, or did an injustico to the defendant, fails to state a defense. Union Pacific Railway company against Por- ter. Affivmed. Error from Buffalo county. Opinion by Mr. Commissioner Ryan. Negligence as ground of recovery or defense is a question of fact to be submitted to the Jury upou the ovidence, as 13 any other ques- tion of fact. Undor the provisions ofsection 8, article 1, apter 72, Compiled Statutes, it is only ssary to a right of recovery againsta railrond company to show that the person in- Jured was at the time being transported ns a passenger over the defondant’s line of rafl- road, and that the Injury resulted from tho manigement or operation of said rallround. A presumption thereupon arises that such nian- agement or operatlon was negligent, and it can be met only by showing that the injury arose from tho criminal negligence of the party injured, or that the injury complained of wits tho result of the violation of somo ex- pross rule or regalution of said rallroad com- pany actu llj brought to the notice of the purty injured. Liabillty of a Belknap against Stowart. B caster county. Afirmed. Commissioner Ragan. The findings and judgment of a court grant- ing u wifo a decree of divorce from her hus- bund on the grounds of extreme cruelty are not competent evidence o prove that she was fustitied in lenving her husband's home and iving apart from him in an action brought by 4 third person against the husband for board- Illf( and lodging his wife. n the absence of aspectal promise of the husband to pay for the board and lodging of his wife, 1iving apart from him, he will not be responsible therofor unless she lived separate from him by his consontor his conduct was h s to Justify lier in leaving Lis bed and bourd. Schunckle agalnst Blerman, 89 llinofs, 454, npproved. Powell against Beckley, Error from Gage county. Reversed and remanded. Opinion by Mr. Chief Justice Maxweil. In an action by a tenant against his land- lord for repairs made by him unon the leased premises, e must show a contractof the land- lm , expressed or implied, to pay for the same to entitle him to recover, Lichv against Moore. Reversed. missioner Ryan. Tho mere fact thut the guarantor of a prom- issory note, at tho request of the principal maker of said note, received - the amount loaned thereon and paid it in the discharge of o judgment against said principal nink whereby the lion of said judgment param 10 that of & mortgago held by sald - gunrantor upon real property of sald principal muker wus released. therd being no _fraud or circum- vention shown, does not affect the rightof sald guarantor to recover the amount which ho has beon compelled s such to pay, even though the parties whom he sues is make of sald note were stay suroties on the jud: mentso puid. - And this rulo Is not qualified by the mere fact that the parties so sued were in fact but surctivson tho note with the party who instructed suid guarantor to make pay- ment as uforesaid, A sty surety is not_entitled to be subro- gated to the ‘rights of the holder of a stayed Judgment, merely by rewson of the fact thut Such stay surety hus signed a note us surety with tho judgment. debtor, upon which note the money his been loaned With which pay- ment of the stayed judgment was made. n A sult by a guarantor for reimbursement of the amount which by reason of such guur- anty he has been compelled Lo pay, iy is no de- fenso that the original payee of the note as oe Of the estate of the “principal maker f, (for whom the defendants cluim they but ties) wasted the estate of suld rker, 80 that he could not pay us could, the said ussignee having duly ounted and been duly discharged by the court which appointed hiu'such assignee. Where the defenses pleaded are wholly un- sustained by the evidence, 1t is error for the triul court to direct & verdict in favor of the defendants Error from Johnson Opinion by Mr. Chief cl usband, ror from Lan- Opinion by Mr. Error from Thayer Opinion by Mr. Com- Master und Servant, Hammond company agaiust Johnson, from Douglas county. Affirmed, by Mr. Commissioner Ryan, 1tis tho duty of a master to furnish for tho uso of his servint in the course of his employ= ment, proper and sufe appliances and lnstru- ments for the performunce of the services re- quired. And If the mastor fails 50 to do, he 18 Hable for such dum uro the dirdet re- sult of such neglige unless the servant himself Is guilty of such negiigonce ns con- tributes directly 1o the Injury and this rule applios irrespective of whether tho uppliunces and inytruments 5o furnished were aniuate or inanimate. Where & master, a corporation, furnished a horse for Lho use of its servant In the line of bis employment, wherein said horse injured theservant, the jury was properly instruct that even 'if 1t should tind that the horse was viclous and dungerous, still tht the plain- tIF could not recover uniess the jury further found from the testimony that’ the master throuzh its managers or officers knew, or by the oxercises of proper care and dillgence, might havo known, of the viclous sud danger ous character of tie horse. The ovidence in this case justified the jury 1n finding that tho agent who, in the employ of a commen master with the servant, directed the said servant (o use the horse whreby suid servant was Injured, was not his mere co- servanut, but in giviig the instruction afore- sald, wis & vice peincipal, and the master was therofore. properly held liable for thé injuries received by the servaut ln obeying such in- structions. About Mallclous Prosecution. Venuum agoinst Huston. rror from Web: ster couuty. Reversed and remanded. Opinion by Mr. Commissioner Ragaa. Sectlon 54 of the Code of Clvll Procedure Error Opiuion County provides: “An actidn for the following enuses must he brought. in the county whoro the cause (of action) ot some part thereof, arose: First, ¥ * '« Bhieond, an action again: a public officer for an net done by him in vir- tue of ot under color of his office, ot for noglect f his oficial daty.™ Accordingly, whereln a suit for prosecution, ‘brought in Webster against o prosecutimg witness, peace, and._ con complaint was and file maliclous county, Justico of the Lt Bppedred that tho worn out 1n Hitcheoek county with the Justice of the peace, who fssued or plainti T, and deputed the constable wute it and he arrested the plaintiit in Webstpr county, and took him betore the justice in Hitchcock county, who examined wmd committed plaint(ff t Jalli hela, dirst: That plaintis cause of nction’ was his alleged mali- clous prosecutlon by _the defendants; second, that as the plalptif was arrested in Webster county o part of his cause of action arose there. and that tho sult was rightly brought in that county: and third, that the court had jurisdiction over the defendants summoned In Hitehcoek connty, although no defendant to tho suit resided [n or was sum- moned In Webster county. McNce against Sewell, 14th Nobraska, 532, followed. The complaint and warrant in_the prosecution alleged to have veen malicious, examined horeln and heid to state the sub- s harge and to be sufficient when attacked col | A Justice of co fn deciding upon the sufficiency of complaint made before him, charging another party with a erime, and in Issuing a warrant of for the party ac cused, acts judiciall if he does so in good falth, with pure motives and without malice, ho 'is not Tiable therofor if he had Jurisdiction of the offensa charged and the complatw, was not absolutely void. To render a_prosecuting witness liable in an action for maliclous prosecution it must be alleged and proved that his conduct in the preniises was inspiced by maliclous motives nd was without_probable cause. | inst Aul, 20th Nebraska, 191, follow criminal Possession Notics of Title. Kahre against Rundle, las county. AMrmed Commissioner Irvine. Possession of land is notica to all the world not only of the possession Itselt, but of " the right, tltle and fnterest of the possessor. This rule holds good in_favor of a vendor who remains in possession after his cony: anco, clalming that the conveyance was pro- cured by fraud, nsagainst a purchaser from the feandulent vendes, whero such purchaser knew of the vendor's possession and made no inguiry respecting it. State ex_rel Miller agaiust Tewis. Manda- mus. Demurrer sustainod; action dis- missed. Obinion by Mr. Justice Norval. h county In this state having a popula- 008 or mo 1s shown by the last n: nsus itled to olect a registor oeds at th eral election A county having less than 184 tants at the national consus of 1890 entitled to elect such u the stato census of 1855 shows it possessed more than the above number of inhabitants. State ex rel Clark against School District , Chase county. Mandamus, Appl dismissed. Opiuion by Mr. Commis Kyan, This proceoding being simply ono for the collection of a debt, of which the district courtof ¢ unty has ample jurisdiction, us {3 denied ana the action following _Herpolsheimer & Co. against Lincoln Gas company, in which the opinion was filed October 18, 1853, Lumar aganst.'homas. Error from York county. Afirmed. Opinion by Mr. Com- missioner Ragan. The law [mposes upon a party Injured from another's breach of contract or tort, the ac- tive duty of making reasonable ex- ortions to render the injury as light as possible. If, by his nogligence or willfulness, he allows “tho damages to bo un- necossarily enhanced, —the ed loss Which was avoldablo by tho nco of his duty, falls upon hin.” Lo pp. 15 Nebraska, 417, followsd. This was asult for lance due on account ot pnsturing eatgle. “ho defendaut pleaded, ) settlement; (b) counterclaim for mages sustained by 10ss of and Injury to eattie on unt_of - plaintifs negligerice. The in- structions of tho court to the jury on tha.suh- Jeet of the ~defenses of settlement ana counterclaim, approved and sot out at length in the opiniorn Barras against Pomeroy Coal company. Error from Lancaster county. Afiirmed. Opinion by Mr. Commissioner Ragan. B and O had n contract for the construction of a school building and sublota part of tho work to one J, B and C. and the P O company then entered intoa verbal agresment by the torms of which the P C company was to furnish J such material us he wight need in sald work, presont the bills therefor to J for his O K, and thereupow B and C were 1o pay them. teld, an original promisoon the part of Band C d not a promise to pay J's debt. Waters ngainst Schaffer, % Lindsay ngainst Heaton, 27 Nebraska, 602, followed. Richardson & Boynton company against Win- cor from Gage county. Afirmed. Opinion by Mr. Commissioner Ragan. ~ o obtain a review by the supreme court of an alleged erroncous ruling of the district court in the giving or refusing of an instruc. tion, an exception must be taken to such rul- ing at the trial and specifically assigned us rror here in the petition in error. salaries n Gage County. Appeal from Doug- Opinton by Mr. 3 fnhabl- wis not officer, even though County of Ga inst Wilson. Error from Gage county. Reversed and order of county board reinstated. Opinion by Mr. Chief Justice Maxwell. A deputy county clerk is salaty out of fees recelved by the county clerk In excess of the amount which he s authorized to retaln. The county is not liable for such salury. of Gage against Kyd, county. Affirmed. Chief Justice Maxwell. An account was filed with the county clerk by one K as jailerof G county. From this count the county board deducted §179.50, from which K appealed to the district court. Plead- ings were filed in the district court in which K clutmed s juil guard, and that_the account as ;ulh'l' wius i mistake. The court found the ssues In fayor of K, in effect that ho was jail ot jullor. A juil guard” when actually necessary for gunrding prisoners Is entitlod to 32 per diy, to bl\ paid by the unty. County of Gage against Wilson. Error from Gago county. Judgment of district court reversed and order of county board rejec ing claim, afirmed. Opinion by Mr. Chief Justice Maxwell. Thie county judge, clerk, treasurer and sher- I where the fees exzeed tho amount fixed by statute and are authorizod to appoint a dep- uty or deputies, miy, in addition to their own salary n fron the fees of their respective office ™such amount us may be necessary to pay the salaries of such deputies or assistints as”the sumo shall e fixed by the “county board, but in no instance shall such officer ro- colye more than the fees by them respectively and nctually collected, nor shall any money ned for depity service unless tho actually paid to such deputy for his services.” The county Is not liablo for tho deputien’ salury. 14 1s to'bo paid out of tho fees of the particulur office Barred by Limitation, Omaha & Republican Valloy pany against Moschel. Krror irom Cass county. Reversed and remanded. Opinion by Mr. Commissioner Ragan. Tho permitting or refusing of amendments to pleadings is & matter within the sound judi- clnd diseretion of the trinl court, and unléss it is mnde to cloarly uppear thut he has abused this diseretion, und @ party hus thereby boen deprived of th opportuity to make his case or defense, the supreme’ court will not intor- to be patd his Error from Opinion by Mr. Railroad com- i fero, t1s not necessarly i fatal objection to a proposed amendment fhatitis lu fact an addi- tlonal defonse of un additional cause of action wetion against & railroad company for i s to plaintil’s real estate, caused by the raliroud company’s building its tracks and perating its road acrpss the street and on o ot lying next to plaintit's property, must be brought within four yiurs of the date of the £ such ruilroad. {company 1n 1830 bullt ailrond track and sideiracks across o stre and on a lot (:wned by it 1y10% 00Xt 10 plal s property, iwnd mare thish four yeurs Ui after plalntiff brougiy, suit against the rail roid company for the deprec tution in value of his lot caused by the building of such rail- road und its subsequent operation und for subsequently building und operating nddi- tional tracks across sudd street and lot, held: First, That plaintiffin no event could recover for why depreciation ia the valuo of his prop- erty by reason of any acts of the railroad cowpiny, either In matters of construction or oporation, the habitual doing or the cow- wencewent of the doing of which acts, was at @ dato more than four years vrior to the dute of suit brought. Second, that the plaintiff Could aud i ho did or @id not within four years after the date of bullding of said original railroad on said lot and scross said stroot adjacent to his property, bring suit for dumages for the depreciaiion in value of his premlises caused by such rallroad construction and operation, then every element of daniag past and tuture, that ware or would have boen properly admissable in that suil, elther in matters of construction or operation, must be excluded from consideration in this cuse. McCoonell against First National bank of Lincoln. Appeal from Laucaster county. Reversed and deeree for plantifft. Opio- ion by Mr. Commissioner Kyan. Where the answer adwits there is due the ntifl & cortuin sun, much smaller than is clamd in the petition, nnd all the averments of new matter in the wnswer are unequivo- cally deniodby the reply, Judguent must bo for tho Amount udmitted to bio due, the ullowance of costs belug discretionary, none are taxed ws Incident 10 the above judgment, because of 1ts OVEMBER 10. 189; the confused condition of sald issuss A8 pre- sented {n the district court Upon the request of the plaintiff therafor, & soecial finding as to w very material disputed fact was I\flhn\ trial court in favor of the defendant. Held, in the absenco of a clear preponderance of the evidence to the con- trary, that such finding conclusively estab- lishes the existonco of the fact as found A _sherift In possession of « stock of goods pending their sale for the satisfaction of cer- tain attachments In his hands, having sold Part of said goods and collocted slaims due the attachment dofendant, paid the proceeds of such sales and collections to the purchases of the stock, who bought frrespective of such sales and collections. Held, in & suit for an accounting between the attachment dofend- ant, who has pald all claims agninst him, snd the reciplent of such procecds and collections, that sald att t defendant is entitled t recover the amount of such procecds with terast from the time thoy wero received seid purchaser. Eggleston against Platto county, Justice Nor The finding of the trial court that the decd execute the plaintiff and deposited In e8Crow third person, to be delivered to \ the porformance by the latter n conditions, was delivered by the te- in escrow by instractions of the ven- ore the conditions of the holding had been complied with, considered to be sus- tained by the evidento in the case May Wil Hava to Stand It. May against State. Error from Douglas county. Affirmed. Opinion by Me. Justice Post. Whero 1t 1s apparent that the plaintiff in error has not been prejudiced by the ruling complained of, the Judgment will be afirmed, and tnis court will ot examino the record for the purpose of determining whether or not such ruling 1 toehnically correct. A motlon for continu inu criminal case on the ground that the attorney for the aceused had not been notified of the tr suflicient length of time to properly prob: therefor, but which failed to show want of by Pollock. Affirmed Appeal from Opinion by Mr. s of the accused ina el are inadmissible, where there nd for tho presumption that y ted Ly threats or induced by Ans of promises. ivldence examined and held sufficient to sustain the Judgment of the district court. Benson against Daly. Error from Gago county. Afirmed. Opinion by Mr. Chief Justice Maxwell. Whero thero Is a dispute as to the exact boundary between the owners of adjolning Iands and a county surveyor establishoes a lino upon an actunl survey of the lands and both claimants particlpaté In making and paying the expenses of the survey whicl survey was acquiesced In for a constderable time after- wards, it will not be disturbed because & new survey mado some years afterwards tends to fhow & mistake i the estabilshment of such no. Wilson against Robert Appeal from Lan- al dismissed. Opinton Where in un equit successful the district upou wn wpplicatt roview, although b tion, he will be hel 1o appeal from such ¢ DePricst against McKinstry. Keith county. Reversed. Action dismissed at costs of defendant in error in both courts. Opinion by Mr. Justice Norval. An aetlon of replevin will not lie against one who, at the time theaction was instituted, was neither in the netual nor constructive possession or control of the provorty, unless he has cone I, removed or disposed of the same for the purpose of avolding the writ. Coneerning L d ¢ nets, Harrington agamst Birdsall. [rror from Buffalo county. Afirmed. Opinicn by Mr. Justice Norval. Inan action by a vendor of real estate to foreclose a land contract or bond for a deed, on account of the failure and refusal of the vendee to pay the pus ¢ money according to the contract, a tender of a deed by the plaintiff beforo bringing the suit need not be shown. The. fallure to tender a deed could, at most, only affect the questlon of costs. Oourts of cquity.awlil decroo a strict fore- closure of lund contracts only under peculiar and sveclal eircumstances. Applications of that character are addressed 10 the sound legal discretion of tho court and they wilt be granted {n cases where it would be unequita- Dlo and unjust to refuse them. Rule applied. The statute providing for stay of ex itions and orders of sale does not apply to decrees of strct foreclosure, Roberson against Reiter. Willow count; Opinion by M Where u mort in escrow with to the mortgage proceeding the un- -examination by questions at issuo » nture of a bill of motion instead of peti- o have waived his rizht Error from Krror from Red Reversed and remanded. Justice Norval. e is executed and depositod hird person to bo delivered on the performance by th Intter of cortain conditions, the delivery thereof by the custodian to the mortgageo without ihe knowledge or consent of the mortgagor, beforo the fulfiliment of the con- ditions by'the mortgagee, Wil not have tho effect to confer any Intcrest in the mortgnged property upon the'latter, or upon an asslgnee with notice. A mortguge delivered to a third purty inescrow, to be by him delivered upon the hapoening of some contingency, or upon tho performance of some condfiion, does not become effectual as a delivered lnstrument until such second delivery. Tho assignments of orror based upon the rulings of th courton the admission of testimony considered and overruled. The assigneo of i promissory note and chat- tel mortgage, wi od them ufter ma- turity, holds them subject to all tho defenses peen made by the maker they remained In the hands of the orig- or hold, 1 ro the proporty replo s delivered (o the plaintiit under the writ, in cass the verdict finds for the defondant,'the judgment must bein the alternative o a return of the proporty or the value thereof, or the valuo of the possession of the surme, and for damages. Where the judgment 15 not in the alterna- tive form a new trial will not bo granted by tho supremw court for that reuson, but the cause will b remanded to the trial court to render the proper judgment upon the verdict. Upton against Cady & Gray. Error from Douglas _county. ~Afiirmed. Opinion by Mr. Justice Post. One who desires to have roviewod upo tion in error in this court alleged curring at the trial ix requi rulings complained of to tion for i now trial he falluro to assign alleged orrors as grounds for a new tial is not of itself suf- ficlont tor the dismissing of a potition 10 orro; vetl- wrrors oc. b to nussign the 0 trinl court In o poears from an inspection of the record inany case that the petition in ©rror_presents no quoestion of law or fact for Teview by this court, such causo will be con- sidered s submitted on its merits and the Juagment or dei flirmed, Poluts tor Losors. Lau agawst Grimes Dry Goods company. Krror from Fillmore county. Afirmed. Opinion by Mr. Jstice Post. Insinuations und imputations of unfairness and fmproper motives 1o the trial judge aro highly lmproper and prejudicial to'the party making them. q s uestion at Is ad e o cuse pending by u ono of the purties, t controversy with rospoct (0 fho extent of’ his wuthotity, it is hot error to refuse an_instruction defining tho power of an attorney Lo contract in the name s principul. he trind court Is not required to charge the Jury in the exact lauguage requosted. It Is sufficient If the substance of an lnstruction bo glven. A judgment will not be reversed on account of eirors not prejudicial to the complaining party. {denco of value examined and hold sufil- clent to sustain the judgment of the district court. In an attachment suit it was stipalated that L, o garnishoe, who had stoc 0ods Lo satisfy & morlgage executod by the defendant, show.d answer by afidayit, “Showing fully the amount of money re g in his hands from silo of stock” for I to the defondant,” und ug the amount of 0 amount of s morigis gurnisheo should b dischirg fense In an actlon by the Earnishoe afLer answ isfactory disclosure, the cuuse ion allegod being the conversion of the stoek of goods while in his possession. Wagner against Ladd. FKreor county. Afirmed. Opiuion by Justice Maxwell. In un action on a promissory note, & counter- claini and sot off consisting of soveral Items were sot out in the answer, which on the the Jury disullowed.’ Tio testimony L confflcting it is fmpossible for the court to say with accuracy what, 1t any, one 8f the items should be allowed. An instruction: “When a settlement 15 ma and a promissory note Is given us a resul the settlenont, the gIving of the notw i pri 1 1co'thit all miatters o diffe Detwoen the partios at the time of the s t wore settied in the settlement, wid this presumption must provall until u prcponder- ance of the evidence shows that there were matters o the difference at 1ho time betwee the parties that were not included in sy sottlement.'” Hold applicable t tho testimony and uot ¢ ous. wutine Proceedings of Court, Smith agalnst Johnson—Lesve give UIT o miko showlng to open Judguient. Nogton ugalnst Spaids—Disinlssed Btite against HilL—Set for hearing Monday, November 20, at 2. p. i Owahs Natlonal bunk against Thompson- Leave 1o remove record. Balisbury aguluse record allowed. Tho followi nst the from Gage Mr. Chief plain- Scott—Diminution of causes were coutinuea: Moore ( Washington, will leav homesteads, subscribed Each subscriber tled to go. an annual income equal tract will pay a dollar a invested in it. See circulars and city ticket office, 13th D. H. Stearns, Paxton ton hotel, Omaha. STEARNS WHAT Star Brand private pri Mack Send for price list. via. Union Pacific route Given by the Stear This is a chance of a lifetime. ent offer can never be duplicated that went out two weeks ago were delighted. See their report in the folder. Parties in nearby Iowa towns and along the line of the Union Pacific road, who want to organize clubs to go on this excursion, please communicate at once with D, H. Stearns, Pax- FREE EXGURSION To the wonderful fruit groves of Clarké county, ¢ Omaha, Nov. 20th, » and Grand Columbia river, returning via. Por tland, Oregon. ns Fruit Land Compa- ny, to give its patrons an opportunity to select for under its easy pay- ment and full preparation plan. for twenty acres is enti- Any combination of subscribers for smaller farms amounting to twenty acres, entitled to send one representative. Each subscriber may take as many acres as is desired, from one to twenty. Each homestead when completed,will give to 1ts cost. As an investment our tree planting con- year for every dollar application blanks, ob- tainable at the Bee office, the Union Pacific and Farnam, D. V. Sholes Co., 1st National Bank building and- of Hotel. Our pres- The party FRUIT LAND CO., 107 First Street, Portland, Oregon. TELLS Meyer Extra Quality 20, New Jerseys 20 and 12, Amazons 20 and 12 and 12 Excelsiors 45 Straight. Big stock Ielt Boots, G rtoshes. a rman Sox and No goods at retail. ZACHARY T. LINDSEY, OMAHA, NEB. 5 SKINS ON FIRE With ngonlzing eczemus and other ftehing, burnivg, b blot disean: speedil, catent blood purl nd hu w of modern times aghout the world, PRESERVE YOUR EYE SIaHT. H.mmwnsfia'j BLE MAX MEXER & BRO 0. Sole Agents for Omaha. agalnst Scott, iy against Keens, MeKinney v tn alnst Clark, Robinse Lamma against State, Steelo [Koarney Nutionnt bank, Porter against Sherman” County Banking company, Stato ex rel Marquoit against Baushausen, wainst Capltal National bank The following cases were argued and sub- witted: Campbell against Parrish, Tr elers Insurance company Winst Bl Broateh against Moore, Hurgrenves Korcek, Cornellus agafnst Hultman, thorne igainst State. Hansen against K ipbell agalnst MeUlure, Kearney Ci t Akeyson, Salsbury aga otion, K lorest against Nantker, Sheas- inst Hop- against Electric ¢ iy ughlin, Rico agaiust Wint Javis wgalnst Snyder, Farwell ugainst Kl man, Bloghaw against Shadle. Thompson agalnst Fleld, Congar against Dodd, against Johuson, Keed agaiunst Liss, agalo Hall, in re Bcott on wmotlos wguinst Dowbing, itice u HOMEOPATHIC Medicines and Books For Doctors and the Publio, Medicine Cases Filled For $1, $2.50 and $4. WRITE FOR PARTICULARS IERMAN & MeCONNELL, OMALMA, - ",l“”,' The Mercer. Omaha’s New2st Hota!, Cor. 120h and Howard Sureats 8 ¥2.5) por day. #50) per duy Wrooms With bath at i per day. Wrooms with buth at shi) par Jay Moderu tn Every Kespsot. Newly Furarshod T C. 8. ERS8. Notice- Salo of xehoo Sealed bids will be v November 20, 1693, at 2 o gho 1k Pron, ids. ived until Monday, slock p. ., for the | pureiuse of 5 bond3 of 41000 cacli. ailld bunds | Lwued by sehool distriet No.71, henyercounty, | Nebrasks, datod August 22, 1593, due Juns 1, | 1923, Tnterest 6 per cout, payable on the 156 day of June of each year. Principsl and in- | terest able at tho Nebraska Fiscal Agvney, | % idly will b e epled for one or Right rescrved to reject Now Y all of sald bonds. any or all bids, pliYelopos cantatol 1§ bids shoutd be warked bids for Boads and addressed 10 LEROY HALL, Cruwford, Neb. v, 94101 m