Omaha Daily Bee Newspaper, May 31, 1902, Page 8

e S T e B o e e CURRENT NEWS OF IOWA THE OMAHA DAILY BEE: SATURDAY MAY 31, 1902 are cut from the skins by hand and sewn &round the balls by women. Each woman Is expected to finish fifteen dozen balls COUNCIL liiCREASE IN PERSONALTY) Oounty Auditor Completes Tabulation of‘ Returns of Assessor, COMES ABOUT THROUGH NEW BUILDINGS As Renl Estate ia Not Assessed this Year Improvements Are Listed as Personal and Help Boost Personalty, Caunty Auditor Innes yesterday com- pleted the footings of the assessors’ books for the entire county for the assessment ot personal property for 1802. They show an increase in actual value of $193,316 and in taxable value of §$48,820 over 1901. The total actua]l value for 1002 is $8,408,612, as agalost $8,215,196 for 1601. The taxable walue is based on 25 per cent of the actual value. The personal property assessment for 1802 s in reality less than for the pre- ceding years, as $303,438 s the amount mssessed for new buildings and Included in the personal property assessment, while in 1001 this class of property was included in the real e assessment. This year only personal property is assessed, the esment of real etate for the preceding yeoar being used. The moneys and credits show an Increase of $100,396 over 1001, while corporation .atock -shows a decrease of $48,344. Mer- chandise shows an increase of $192,214 over 1901 and other personal property besides that enumerated shows an Increase of $47,283. The footings of the assessors’ books give these totals on the different classes of per- sonal property for 1902: people to figure out how to keep cool Polls (under 45) 4,678, (over 45) 2.020: value of new bulldings. $47,438; i-year-old helfers, 007 value, $174831; 2-year-old helfers, | 5ply one that gives universal satisfaction s S S S, oW, 355 valus: | ., The Philomathian Literary soclety of the | 596 yZ, 1d steers. 3.180; value, $96,- | HIgh school has elected these officers for | e earscl stecra. 8. vaide 5364 cattle | the ensuing year: President, Charles | in tesding. 13.639: 'value, $523,04; bulls, | Campbell; vice president, Alfred Hanchett; | A e I is: “wwine, ALO0T: value, | Secretary] Charles Baldwin; _treasure 568,479, wheep, 1.961: value, $15,224: goats, | Slarence =~ Henninge! sergeant-at-arms, 367; value, $340; 1-year-old colts, 1,607; value, | John Clark. 4,012, B-yenr-old coltn. 4,168; value, $54,50: | The supreme court has affirmed the ver- orses, 16,008; value, §903, stallfons, $6: | dict of the distriet court here in the suit valne, $90,754: mules, 1.416; value, $§76,892) | of J. C. Nielson against the eity of Council yehicies, 4,207 value, $88,148; household fur- ‘niture of hotels and bonrdlni houses, $27 ; moneys and credits, ,268; corpors ition stock, $436432; merchandise.” $1512.56 rapital employed In manufacturing, '$25,36S Gther personal property, $664,232; total vaiue, s B2 taxable value, §2,102,125; dogs, | of the Officer & Pusey bank was post- male, 3,048; female, 147. poned yesterday by Judge Wheeler, owing — o the death of Jumen Mccabo. one of the attorneys for the recetvers. The hearing, it Davfs sells paint. {s expected, will be had Monday. . James McCabe Dies Unexpected. James McCabe, member of the law firm of Harl & McCabe of this city, dled shortly after midnight Wednesday at his home in Morningside. He had been seriously i1l for peveral weeks with complications arising from an attack of sclatic rheumatism, but paser to go on an his death was not expected. His wife, two sons, Charles and Fred, and one daughter, Norah, survive him. Cuptain McCabe was born at Marletta, Q. in September, 1844 He enlisted in the federal army from New York in 1862 and served in the Sabine Pass expedition and at the siege of Port Arthur. He lost his arm in General Banks' Red river expedition. After ‘leaving the army he studled in college at Athens, O., and moved to Shen- endoah, Ia., In 1872. He was married to Mies Hannah Low in 1873. He moved to Douncil Bluffs in 1890 and formed a part- rship with Charles M. Harl In the law business, He practiced in this Omaha and was well known to i Douglas county and western Jowa. ~Ac- vording to present arrangements, the fu- peral will e Sunday afterncon. Rev. W. shurch, of which Captain McCabe was a prominen. member, will conduct the ser- vices, assisted by Rev. W. S. Hooker of Red Oak and Rev. W. 8. Barnes, pastor of the First Presbyterian church of this sity. Plumblag and heating. Bixby & Son. Christian Convention Adjourns. The convention of the Christian church »t the Southwest dlstrict of Iowa, which has been in seesion since Monday evening, closed last night with one of the best at- tended meetings of the serl: The morn- [ 8nd n¥% nwii 476-41, ‘'w. 9,000 ing' session yesterday was given over t0| Tota] two transfers ceoeeend 9,400 the discussion of the bible school. The afternoon session was devoted to the Chris- tlan Bndeavor society and its work. Rev. 8. M. Perkins of Villisca, former pastor of the church in this city, gave an in- teresting talk, taking as his subject “The Analysis of the Bibl The feature of the closing session was an address by Rev. 7. J. Dow of Des Moines, who spoke of the decline of the Christian Endeavor soclety and recomuiended several methods for in- stilling freeh enthusiasm into the soclety. \ N. Y. Plumbing Co., telephone 250. Council Inspects Pavi | mme ety council inspected the paving on First avedue, recently completed by Con- tractor Wickham, yesterday afternoon, and approved the assessment schedule prepared ®y the city engineer. The council decided Rhat all the abutting property was able to \bear the assesament for the cost of the| Amprovement. A resolution Wi ndupm‘l‘y ordering the payment of Contractor Wick- fham of the city's portion of the expense igor the paving opposite Bayliss park. The \ouncll. also investigated the condition of {ixth street south from Fifth avenue, which has been ordered paved, and de- ‘ided that as it.is now almost impassable, | owing to the holes and ruts, Coutractor | 'Wickham be instructed to pave this street mext. A MINOR MENTION, “ Davis sells drugs Stockert sclls carpets and rugs. 2 Wollman, sclentific opticlan, 48 “B'way. Leftert, eyesigh’ speciailst. 2% nr;‘x-l-m- nem sale of photo frames. C. ex- & Co., qu'(y‘l ey bri. etzger's 1o -..u:‘ Vaniiiar 26¢; Neopolitan, Mre. B, N. Waller and children left yes- . tlon of croquet sets and also remem! of the old landmarks. revolver and threatening to shoot him. for injuries received by stumbling over water lock box on the sidewalk near the moval of Recélvers Bereshelm and Murphy yesterday after the case had been c: for trial. Proffitt for a road. awarded him $7.50 damages and from this he appealed. conservative buyer to look over their stock went to sleej costs in police court yesterday morning, he bar ot | €Ity August 13, 14 and 15, will be discussed. terday on a visit to relatives in Charles City, Ta. Excelsior Masonic lodge will hold a spe- clal meeting this evening for work in the second degree A_marriage license was lssued yesterday to Frank 8. Green, aged 28, and Henrletta Hotchkiss, aged 19, both of Council Bluffs. Mr. and Mrs. Charles Green and Mr. and Mrs. B. Brandt have gone to Seattle, Wash., where they will spend the summer. Henry Shaw, arrested Tuesday night eharged with insulting women on the pub- lic street, was discharged yesterday, no one appearing to prosecute him. President Finley Burke has called a meeting of the Pottawattamie County Bar assoclation for 9:30 o'clock Saturday morn- ing to take action on the death of Captain James McCabe, Don't forget that we have a big selec- r_that ure. Your etersen & we sell them at a reasonable f) investigation will decide that. Schoening, Merriam block It I a pleasure to mow your yard if you have the right kind of a lawn mower. Have rou seen that Iight running, ball-bearing, een cutting machine at Petersen & Bchoening's? It beats ‘em all. J. J. Btewart, administrator of _the Thomas Officer tstate, began paving the 5 er cent dividend authorized by Judge Wheeler of the district court yesterday, to the creditors of the Officer & Pusey bank. No use to figure how cheap you can buy hardware when you want to bulld. Just leaye your order at Petersen & Schoening's and_you can sleep peacefully that your hardware bill will be the lowest that any firm can make it. John R, Furlong, an old time newspaper man of Council Blufts, now a prosperous mine owner, with his home in Boulder, Colo., {8 renewing acquaintances in this city. ' Mr, Furlong looked in vain for many There 1s no art in buying a hammock if you go to the right place. It is to your interest to go to Petersen & Schoening's when you want one, They laugh competi- tion in the face when it comes to ham- mocks, both in styles and prices, G. Blodgett, boss of one of the railroad camps on the Great Western grade, filed an information yesterday in _Justice Bryant's court againet ‘‘John Doe,’ a negro, whom he charged with drawing a From now on it will tax the wits of %:e o rst step in the right direction is to pur- chase a refrigerator at Petersen & Schoen- ing's. They have what one might term the Bluffs. Nielsen was given $1,000 damages Northwestern depot. The hearing on the application for the re- The suit of D. G. Pugh Profitt was settled In the ainst Sarah strict court Pugh sued to recover dam for a portion of his land taken by Mrs. The condemnation jury It would take a P88, 0% more of this describe the immense ne of furniture and house furnishings at Petersen & Schoening’s. They invite every and stand ready for the verdict when they get_through as to the quality of goods and ecomomical prices. Joseph Newman, who while intoxicated in an alley, was fined $ and He had quite a sum of money on him when discovered by a policeman and part of this was used to pay his fine and he went his way rejolcing that he had not been robbed before the officer found him. A large number of delegates from the various camps of the lowa Soclety Army of the Phfllmfilne! are expected to arrive in the city thls morning to attend a meet- An Information was filled in Justice Bryant's court yesterday by J. E. Butler, road supervieor for Kane tow; ing John Burroughs, a contractor on the rea’ Vestern, wit lestroyin 7. Caltee, pastor of Broadway Methodist| gy sy duct over the Roc} son avenue, outside the city limite, and { alleged to Have driven piling into the road- way, although warnes hip, charg: the public Burroughs is bullding the via- Island tracks on Madl not to do so b; Supérvisor Butler. Y Gravel roofing, A. H. Read, 541 Broadway. Real Estate Transfers. These transfers were filed yesterday in the abstract, title and loan office of J. W. Squire, 101 Pear] street: Hen! and Anna Sperling, executors, to Thersa Neunas, § acres in se cor- ner swii nely 7-74-43, e. d. Ellen Gannon to Philip B(é\(l. nig neyg ARCHBISHOP IS DOUBTFUL Keane Bellieves Report of His Succes- sion to Corrigan Origivated im New York. DUBUQUE, Ia., May 30.—(Special Tele- gram.)—"I1 think that cablegram originated in New York,” sald Archbishop Keane to- day, referring to the report from Rome that he would be appointed to succeed Arch- bishop Corrigan at the consistory June 9. Clergy attached to the archiepiscopal residence thought the succession would not be considered until after the month's mind for the dead metropolitan. Another clergy- man credited the report from Rome. He sald Keane was the first ghoice of the clergy of New York amd the country, and owing to effective services for the church in Cuba and the Phillppines was In high favor at Rome where Governor Taft and Bishop 0'Gorman are now. Reviving Fair Assoclati CRESTON, Ia., May 30.—(Special.)—C. L. Fullard has beén selected as president and James McCornack as secrefary of the new Creston District Falr assoclation. Thu old falr grounds tract has been fixed up. The assoclation is now engaged in putting up bulldings and sheds on the ground, which will cost nearly $4,000 and the dates of the falr bave been set for September 16 to 19. This will be the first fair in Creston for the past ten years, and if It Proves successful #t will be made & perma- nent thing. Given Pois . May 80.—(Special Tele- gram.)—Mrs. Lizzle Scroggins was arrested today charged with polsoning her husband by placing strychnine in his food. He fis 50 years old and she 1s 19. ‘They have just USE_ ALLEW'S FOOT-EASE, 30 be shaken into (he shoes. Your [ "‘"fl;&” hot. et Uired casily ot of (lght whoes, 1y Allen's sk, and makes walking easy iset, Ingrowing biis- for c. Den't FREE. A¢ Spocied, attent! e 0 chen! a nd LEWIS CUTLER . ~FUNERAL DIRECTOR— p s or to W, C. Estep) 8 FPEARL STREET. 'Fhome 07, 4 WEPE TRNIRS ( - i Yorns afd bunions L e 3’*“""" Try it today. | ores |completed a four weeks' homeymoon. Both {have secured divorces trom former partners {and both have stood trial for adultery. The pumped from Scroggins’ stomach is belng beld for chemical apalysis. convention will be called to meet the latter Christlan Traveling Men's association, be held in Cedar Rapids beginning June 4. It s expected at least 600 delegates and members will be present. meeting was held af Madlison, Wie., when thirteen states were represented, the reports of the officers of the organization showing thirty states. list of membership. the services in several of the churches will be given over to the Gideons. an opinion in the famous Cedar Rapids waterworks case, reversing the lower court, whether a water company may be com- city as fallure to fulfill contract to maln- hydrants. of the claim would have been pald had the pressure beeh what was promised. The lower court ruled that the city must pay all or none of the claim, and that the tender of two-thirds the amount wae not good. The supreme court does mot enter into the merits of the controversy, but reverses the decision be- cause of errors of the lower court in rul- defendant and excluding certain instrue- tions. an opinion in the case of Christian Miller, appellant, against L. B. Cousins, sheriff of Friendly Sons of St. Patrick Banquet hospitality of Whitelaw Reld at Ophir Farm, escorted them from the Waldort-Astoria $ 290 | Stars and Stripes and the flag of Ireland dally. From every skin from fifteen to thirty pairs of covers are obtained. All in all, it takes about six weeks to turn cut a base ball, and the prices of the product will vary from 3 cents to $1.25. The largest sales are of the G-cent balls. About twenty-eight varleties of balls are now turned out. Within the last five years the base ball trade in Cincinnati is said to bave exactly quadrupled itself. In addition to base balls the local fac- tories turm out a considerable number of foot balls. The skins for these are cut ac- cording to pattern and sewn by machine. The stufing and lacing is the work of girls. Bach ball passes through seven pairs of hands in the course of manufacture, while the boxing gloves, aleo a Cincinnati product, pass through about forty. An average of 150 pairs of gloves is the daily output. Some 35,000 bats are made in Cincinnati every year. All but the cheapest grade, which is of poplar, are cut from ash tim- ber, of varying sorts. BRIDEGROOM AT 104. ROBBERS BEAT A PRINTER Frank W. Briggs Dying as Result of Injuries Inflioted by Footpads. DEMOCRATS ARE IN NO HURRY TO MEET Probability that State Conventlon Will Not Be Held Until Some Time During the Month of August, (From a Staff Correspondent.) DES MOINES, May 30.—(Special.)—Frank ‘W. Briggs, a printer, well known In Des Moines, is 1ying at the home of the chief of police in this city, critieally i1l from the effects of a beating he received from foot- pade. He had removed to Fort Dodge, in- tending to live there, and came back to Des Moines to look after some business matters. He I8 a brother-in-law of the chief of police and at a late hour at night was on his way to the home of the latter. Passing an alley he heard a groan and golng into the alley was set upon by two unknown men, who beat him into insensi- bility and rifled his pockets of money, get- ting $32 for thelr crime. Briggs was found unconsclious end it is belleved he can hardly recover from his woupds. Democrats to Meet. The democratic state committee will meet in Des Moines June 5, to make ar- rangements for the democratic state con- ventlon this year. It is probable that the Venerable Montauk Half-Breed Takes Wife Number 4. “Yes" eald Townsend Miller, an old Montauk half-breed, living at Jamaica, in the borough of Queens, N. Y. “I'm 104 years old, and I've taken a fourth bride. I feel pretty young, I kin tell you, with such & handsome helpmate as Jane White, who did me the honor of becoming Mre. Miller No. 4.” Miller is on his honeymoon, and he says that he will not return to Jamalca for sev- eral days, reports the New York World. The wedding took place Tuesday night, the ceremony being performed by Rev. De Witt Jackson of Washington street, Jamalca. ‘When the bride was a child in Newtown about fifty years ago Miller was a servant part of August in Des Moines. There has |in her family and wheeled her about. When been no consideration given to candidates [the civil war broke out he enlisted. Re- by the democrats this year. cently he went to Jamaica, and there boarded at the home of Mrs. White, on Meeting of the Gideons. The call has been issued for the third annual convention of the Gideons, the to Catherine street. He gets a pension of $24 & month. On receiving his pension money last Tueeday morning he went to Mrs. White and said: “Jane, I've thought a great deal of you ever since you was a little girl. I've got a pension of §24 a month and a small amount of ‘property. I know I'm pretty old, but won't you marry me? I'm tired of board- ing, even if I am a star boarder. I'll turn all my pension money over to you if you become my wife and let me be the real head of your establishment here.” The widow blushed, and sald the pro- posal was “so sudden,” but, considering that Miller loved her, she would consent to become his fourth wite, Bo Rev. Mr. Jackson was summoned, and he came to the little house in which the couple lived, and in a few moments Mrs. Jane White became Mrs. Townsend Miller. Miller does mot look his age. He says he does not remember the exact day of his birth, but he has records to prove that he first saw the light of day in old Newtawn fn 1798. Miller claims to be a descendant of old Pharaoh, the Montauk chief who claimed Montauk Pofut, which was recently pur- chased by the Long Island railroad. He is one of those who have put in a claim for the estate. He has a full head of snow- white hair, and is as brisk as many much younger men. His bride is now 52. SUPREME COURT SYLLABI 11419, Battle Creek Valley Bank against Colings. ~ Appeal from Antelope county. Affirmead. Barnes, C. Division No. 2. 1. Where evidence is conflicting the find- ing of a fact based thereon by a court of equity .will not be set aside unless clearly wrong, Bvidence examined and held sufficient to sustain the finding of fact by the trial court. 2, A judgment in a former suit will be a bar in a_second action between the same The last annual that camps had then been established in Iowa stands third in the On Sunday, June 5, Cedar Rapids Water Works Case. The supreme court this morning rendered but falls to decide the vital point of pelled to accept reduced payments from tain high degree of water pressure in the The city tendered in settlement two-thirds the price that ings excluding evidence on the part of the The lowa supreme court today rendered Pottawattamle county; Judge Macy; actlon to restraln execution of sheriff's deed; at- firmed; opinion by Waterman, Rev. Dr. Guy Potter Benton, president of the Upper Iowa university at Fayette, Ia., has accepted the presidency of Miaml uni- versity, Oxford, O. ing at the Grand hotel, et which pians for ——— parties :x;d (thele privies involving the e entertainment of the meeting of the same subject matters, as to everything city and [national soclety, which will be hef in this IRISH ENTERTAIN FRENCH which the record shows was within the lcorg of the issues litigated in the former action. 11503. Knight against Denham. Error from Butler county. Reversed. Pound, C., Division No, 2. 1. A deniai of the very words of the alle- gation of the petition, without denying their substance and effect, tenders no Issue. 2. An answer denying that plaintif's testatrix on a date named “was the owner in fee simple and entitled to the posses- sfon” of the land In controversy, and deny- ing that she died “on or about’ said dafe belng consistent with ownership after said date and before she died, and also with ownership before and at said date, subject o a rl.Kl of possession In someone else, does not put the plaintiff upon proof of it 3. An fnstruction which states that if the owner of lands does not bring an action against one who wrongtully withholds poss session within ten years after his cause of action accrues, he loses his Tight to bring or ‘maintain such action, without adding that defendant’s possession must be con- tinuous, open, notorious, exclusive and ad- verse during the full period of ten years, is misieading and erroneous. , The error in glving an incorrect or misleading instruction is not cured by giv- ing other Instructions which state the law correctly, where the several instructions are Inconsistent or conflicting, or where, taken as a whole, they may convey an Rochambeau Delegates from France. NEW YORK, May 30.—The members of the French delegation after enjoying the White Plains, returned night. At 6 o'clock the Sixty-ninth regiment to the city to- to the banquet given at Delmonico by the Friendly Sons of St. Patrick. The walls of the banquet hall were cov- ered with festoons of flags, bunting and great bunches of greem oak leaves. The ‘were draped with the French tricolor on every side. Directly behind Supreme Court Justice James O'Gorman, president of the Friendly Sons of St. Patrick, was a life sized painting of St. Patrick. Immediately over the president were i{lluminated let- ters reading: ‘“Cead mile fallthe. Among those present, besides the mem- bers of the French mission, were: Gen- eral Horace Porter, American ambassador to France} W. Bourk Cockran, Justice | YEFSe! Fitzgerald, J. L C. Clarke, Colonel Thea- |8 Where such occupant entered originally dore Bingham, U. 8. A., Samuel BSloan, | Without color oFf o or ¢ Ambassador Cambon, Mayor Low, Rev. John :;‘:::‘,Efio“.,";{fl"goflu‘l‘.’,n’zh‘%fi":’y&'x Ireland, D. D., archbishop of St. Paul; Intention to trespass from time to time Chauncey M. Depew, Consul General Bru- | until interfered with by the true owner, his waert, Rev. John McGolrick, D. D., bishop Yéstimony that he intended to take posses- wlop and hold and occupy as owner, un- of Duluth; George L. Rives, Judge Joseph F. Daly, Justice Morgan J. O'Brien, John | grroneous impression. B An occupant who clalms by adverse possession must show that he occupled ad- Persely during the entire period of ten orated by acts necessarily indicat- St ntention, in not sufcient to Te- in his favor. A. McCall, Thomas F. Gllroy, Charies W. | Viiiis" Topnlug against Jaenette. Appeal Dayton, Surrogate Fitzgerald, Perry Bel- 'Otoe, Reversed. Pound, C. Division mont and Willlam McAdoo. Following the dinner President O'Gor- man read the following telegram from President Roosevelt, which was received with cheers: WHITE HOUSE, WASHINGTON, Ma: 2.—To Hon. James O'Gorman, Pres! :‘eny! Friendly Sons of 8t. Patrick—Pleass assure the members of the soclety of my hearty appreciation of thelr cordlal Invitation and express to those present at the dinner my 1. In order to justify reformation of a written instrument in any substantial par- Ucular the evidence of mistake must be oclear, convincing and satisfactory. G But It is not required that mistake be shown beyond @ reasonable doubt: and Where the extrinsic evidence s fuli, un- equivocal and satisfactory, the terms of the {ngtrument alone will not 'suffice to sustain & decree denying reformation i 11783, “Stanisics against McMur(ry. Error from Lancaster eversed and remanded. i 3 very real regret at my fnability to be + €. Division No. Yy grantee of a deed D wen. b e Bty ey aeins -1.1;::'" nis gountor 16 fecover for a breach late the soclety and send to its members | OF, £OVenant against incumbrances parole evidence 18 inaamissible to show that taxes were by tontemporaneous Oral agreement exeapted from the terms of the deed. e and distings best wishes. guests my sincers and THEODORE ROOSEVELT. MAKING BASE BALLS. Grand Lodge Ancient Order of nited Workmen against Bartes. Error bm Colfax. Reversed, with instructions. es, C. Division No. 2. Tk Traterna) heneficiary assoctation hav- 18§ & &rand lodge and principal place of bisiness in this state, and which is doing an insurance business therein, is a domes- tie corporation or assoclation under the rovisions of section 91, chapter xilif of the -Bomplled Statutes, and services of sum- na should be made upon it according to The provisions: of chapter il of the code providing for service of summans on cor- porations and insurance companies. 2. re such association is not privi- léged from being sued in the county where the action against it is commenced, and it rs in such action and files an answer Whieh contains an objection to the jurl dictfon, and also a defense to the action upon the merits thereof, such answer is a walver o the furisdictional quesiions, and the case should be proceeded in and tried Ilgflfl its mer . Tt s reversible error to refuse to allow a defendant to introduce proof of the facts stated in Its answer, as & defense.to the laintir's petition on the ground of a de- Descrjption of the Proc. Which s Said to Take Six Weeks, Cincinnati supplies practically the entire middle west with base balls and something like 126 people earn a living in the bas ball factories of that city. The process of making base balls on a wholesale plan is a rather interesting on consuming in a single season something lMke 8,000 skins. The serappings from the shoe factories, of which the “raw” balls are moulded, are stored in cellars of about one acre area, and from this material the balls are shaped by hand. According to quality, the ball is bound by a few or several dozen rounds of cord. The “raw” balls are placed in automatic moulds, shaping the ball, and | THREE THOUSAND QUIT WORK Blast Furnace Workers Take Steps Enferce Demand for g Shorter Day. YOUNGSTOWN, O., May 80.—Three thou- eond blast furnace workers, about oqually @ivided in number between the Maboning and Shenango valleys, 'will quit work Sun- day morning to enforce their demands for an eight-hour day and a three-shift force of wonkmen, each to work elght houss. The union officials state that they will include the Pittsburg district in the strike thorough te Warrast calling them out. at the same time pressing out all moisture, 1o the tune of 300 gross a day. One em- ploye will shape as many as 4,000 of the raw balls in a single working day. The newly pressed balls are then sorted and allowed to dry out for a period of from three to four weeks, When their welght is reduced to perhaps five cunces. Something like 200 of these twine-bound leather bails fect in the name of the party defendant, as set forth In said petition, where the court has previously overruled defendant's ob- jections to jurisdiction over its person and Tequired it io answer. Division No. 3, 6. _Gare inst 0"! Reversed. Ames, is not necessary to the maintenance of an action for conversion by reason of the wrongful sale of a plaintiff's goods to show that defendant exercised control over Izer. Error from i the propert ith knowledge of the plain- can ba found in the 'bins at all times. HES Tights. oF that & demand was ‘made In the meantime the skin covers for the | for the goads while they were in defend- | balls have been seasoned and dressed on the floor below and, as a last stage in the process, rubbed back and forth against an upright blade, to take out all kinks in the skins and also whiten them. The covers ant's possession. Pease v. Bmith, 61 N. Y, [} 1i888. Gable against Swobe. Appeal from g&ugh;. Amrimed. Dufe, €. Division 1. Where the & trustee refuses to carry out ferms of & trust the party or parties beneficially interested may maintain an ac- tion in thelr own right to enforce the trust and to obtain the benefit thereof. 2. A misjoinder apparent on the face of the petition Is waived If not objected to be- fore the trial, 3. An objection “that the court is with out “jurisdiction to hear a cause on the equity side of the court” I& not a sufficlent demand for a jury, even though the action be one at law. 4. Evidence examined and held to support the judgment 11421 Columbia Natlonal* Bank Baldwin, Appeal from Lancaster. ment, Hastings, Division No. 1 1. Where a d is assalled by third par- tles as fraudulent and proof by them intro- duced to impeach the recited considera- tlon, the grantee may show by parole evi- dence the actual consideration, though dif- ferent from the one recited in the deed. 2. A parole trust, If clearly established, is a sufficlent consideration fo support an executed deed against the grantor's credi- tors, against Judg- ‘Parole evidence to establish a ¢ * ¢ * “{rust must be clear, unequivocal and con- vineing.” Doane v. Dunham, 8 N. W. Rep., 640, 4, Under a prayer for general relief in a creditor's bill a sale of property not at- tached may be decreed where the fac entitling a _party to such sale are alleged and proved, aithough the petition asks epecifically ‘only fof a sale of attached property. 5. Evidence held to support a referee's finding that conveyances complained of were fraudulent and vold as to creditors, 12608. Lincoln against First National | Bank. Error from Lancaster. Motion to | dismiss overtuled. Holcomb, J. 1. In a law action, which can be reviewed oniy by proceedings in error, where a mo. tlon for a new trial on the ground of al- leged errors occurring during the trial is seasonably presented and not ruled upon until after rendition of the judgment in the cause, the time in which error pro- ceedings may be begun wiil not begin to run until a ruling is_made by the trial court on the motion for a_new trial 11843. Thomas against County of Dodge Reversed. Error from Dod Ames, C. Department No, 3. 1. When for the purpose of showing the interest of a witness it has been proven that he is one of the obligors upon a statu- tory bond, the terms and obligations of which are' matters of common knowledge, it 18 not error to refuse to admit the bond itself in evidence. 2, It Is error to submit to a jury by in- structions, questions of fact not embraced in the {ssues or concerning which there is no evidence. 3. A land owner through or adjacent to whose lands is constructed and maintained a public road has a right to such advan- tage from it by way of drainage, as s in- cidental to ite existence, and does not in- the public individuals, convenfence injure the public work. 11847. Runquist against Anderson from Polk. Affirmed. Hastings, C partment No. 1 1. Objections to instructions en masse will not be considered where any of those 80 complained of are corrected 2, Instruction that the glving by plaintift as surety of a redelivery bond for property levied upon does not of itself estop her fram maintaining, after its return and a vain demand for it, an action for its con- version by the execution creditor, ap- proved 3. Where no estoppel on that ground fis pleaded, and no offer made to show knowl- edge by the wife at the time of the facis, not error to refuse evidence that debt for which property was levied u s con- tracted through faith on the ' creditor's part In husband's ownership of the prop- erty_in question. 4, Mere subsequent statements by a pu chaser at execution sale are not compe- tent proof of facts stated as agalnst one suing for conversion by such sale of the property sold. 1. When the answer 1s a general denlal and_the plaintiff has produced evidence tending to prove the allegations of his petl. tion it is error to refuse to permit the de fendant to introduce contradictory evi- dence and to instruct the jury to return a verdict for the plaintiff 1676. City of Lincoln against Morrison, ror from Lancaster. Reversed, with in- structions. Pound, C. Division No. 2. 1, Misappropriation of a trust fund does not, entitlé cestul que trust merely as such and for that reason alone to a preference over general creditors of an insolvent trus- tee. 2. In order to obtain a preference, cestul que trust must show that the estate, out of which he claims such preference, has been increased to some extent by the mis- appropriation of the trust property; and he is entitled to a preference to the extent of such increase only. 3. Where a trustee mingles trust moneys with his own funds, cestul que trust, is en- titled to & charge upon the whole, and so long as any portion of the mass info which the trust fund has entered remains in any form, it Is subject to such charge and may be followed and claimed. 4. The burden is upon cestul que trust to ghow that the trust money did in fact in- crease the estate out of which he seeks a reference or is represented there in some orm. But it seems ‘that where such money has gone into the general estate of & trustee who afterward becomes insolvent there is a presumption that it remains thereln at his Insolvency and the court will not say that it cannot be traced or has wholly disappeared -where the con- or or Error De- trary may fairly be inferred. 51t s presumed that moneys drawn out of a fund wherein the trustee has jingled his own money and that of cestul que trust are his own, and so long as any por- tlon of the fund o constituted remains it may_be followed and the charge of cestul que trust thereon may be asserted. 6. But It the whole of such fund or a greater portion thereof than that repre- senting the trustee’'s own money 1s used by an insolvent trustee in |myln§ his debts, cestui que trust is not entitled to a pre erence over general creditors for the amount of his money so lost. 7. Property or assets of the insolvent trustee acquired before, or with the pro- ceeds of before the trust property held money came into his hands, and not in any way mingled therewith, are not subject to any llen or claim in céstul que trust, and the rights of the latter with respect thereto are those of a general creditor onl. 8. A change in the form of a portion of a fund in which money of the trustee pe sonally and of cestul que trust has been mingled is not necessarily a withdrawal of such portion. When the trustee retains such portion and dissipates the remainder the portion retained in the altered form is taken to represent such fund and may be claimed hy cestui que trust. 9. Where a portion of a fund made up of trust money and of Indlvidual money of the | ted and & profit resuits ces- T Tollowing the trust mone ment, may claim such profit the proceeds of 'the original fund upon ch he had a charge, at least to the ex- of said charge upon the original fund frustee is in ful que tras into the inv ter 10. Capital National Bapk v. Coldwater National Bank, 49 Neb., 1, and State v Midland State Bank, 52 Neb, 1, limited; Btate v. Bank of Commerce, 5 Neb., wnd Morrison v. Lincoln Savings Bank and Safe Deposit C Neb., adhered to. 3. Inglenari against Lull. Error from Douglas, Affirmed. Day, 8. Division No. 1 |, A national bank, which held a note of $19 for collection belonging to another bank of which ft was a large stockholder, took a renewal thereof and included in such remewal note an amount of its own unsectired debt against the maker sufi: clent to make the amount of the renewal note $815.45, and at the same time obtained a mortgage upon the homestead of the debtor, signed by himself and wife, to e- cure the payment of the sald renewal note. Held, that the national bank and its stock- holders had & dfrect pecuniary and benefi- clal interest in the transaction. 2 The tant cashier of such bank, | who was also a_director and stockholder thereof, was the notary public hefore wham the mortgage was acknowledged. Held, that he could ‘mot lawtully ‘take —suct acknowledgment; that he was disquajified to act as such officer, on account of his direct pecuniary interest in the matter, and |t the acknowledgement and the mort- gage were both vold. 1 Perkins against Miiton, Error from | Saline, . Reversed. Albert, C. Division No. o A recognizance fn a bastardy proceeding, conditioned that the acoused shall appear at the next term of the district ecourt to answer such accusation, and abide the order of the court, is limited to the term at which it exacts the appearance and where the case Is continued to a subsequent term, without a renewal of such recognizance and the defendant fails to appear at such subsequent term, there is no lability on the recognizance. 12327 Iler against [)n\lr!:n‘ Affirmed. 1. Under the provisions of the charter act governing cities of the metropolitan class the authorities thereof for the pur- pose of protecting and preserving the pub- o heaith, comfort and weltare, are ‘em powered to enact by ordinance all nec Ross, Error from Holcomb, J ary and reasonable regulations for the o and removal of all garbage, other noxious and unwholesome ances, ashes, stable manure, rubbish and other waste and refuse matter accu- mulating in centers of popuation, and which, without such regulations, would become nuisances, menacing to the com- fort and health of the inhabitants of such cities, and to license persons engaged in such 'occupation or business 2. Such cities may also as incident to the power of regulation, grant an exclusive privelege by contract to one person to col- cct and remove under its own immediate ction and control and In pursuance of noxious and unwholesome substances which are nuisances per se and a menace to the public health. 3 slature cannot under the gulss of fon, arbitrarily invade pri- v personal rights. The test n such regulations are called in ques- is whether they have some relation to public health ‘or publlc welfare, and whether such is, in fact, the end sought to be attained. Smiley v. McDonald, 42 Neb., 5. 4. It is not competent’ for the city as a police regulation to grant a monopoly to one individual by contract to enter upon the pri remises of the inhabitants of the ¢ at their expense collect and remove’ innoxious substances, 8u as ashes, stable manure or other substances themselves nulsances, not but which if allowed to accumulate in un- reasonable quantities would become such, or which nay b utilizied for some bene- ficial p e Such an attempted exercise | of power is In_exc of the authority granted by the charter, an invasion of the personal and property rights of the cfti- zens, in restraint of trade and unneces- sarily creates a monopoly. 5. The section of the ordinance of the cit of Omaha under consideration held void and unenforceable because an at- tempted exercise of power in excess of the authority conferred by the charter gov- erning such city / 12542, State ex rel Wright against Sav- age. Original. Writ denied. Sullivan, C.J. i. The right of the courts to determin all’ judicial questions, whenever or how- ever they may, arise, is given by the con- stitution in explicit’ terms and is indis- putable. 2. But equally clear and incontestable is the right of the executive officers named in the copstitution to exercise all powers properly belonging to the executive de- partment. 3. Considering the matter theoretically and leaving practical results and past ad- Jjudications entirely out of view f{t would seem that the farthest limit of judicial authority in mandamus proceedings against officers of the executive department is to hear. and determine, to glve judgment, but not to enforce it by coercive process. 4. The_principle of exemption from man. damus Is grounded upon a distinct consti tutfonal inhibition—(Con., art. 2, sec. 1)— and does mot at all depend upon ofclal rank. ~ Whether the writ of ‘mandamus should be granted or refused has been made to depend in every case decided by this court upon the character of the act ‘n question and not upon the office of the respondent 5. The theory that the judiclary in issu- ing a mandamus to a member of the ex- ecutive branch of the government is thereby indirectly and in violation of the | constitution exercising power properly be- | longing to the executive department has | been repudiated by this court in a long | line of decisions, | 6. The established doctrine in this state | fs that when a law in positive terms en- joins upon the Snnfl’nur or other officer of the exccutive department a mere minis- terial duty, leaving him no choice or dis gretion in regard to the matter-no judg- ment to exercise as'to whether he will or | will not act—that wrft of mandamus may | issue, and its issuance is an appropriate exercise of judicial power. 7. The doctrine of res judicata s that a question once determined by a judgment on the merits s forever settled, so far as | the litigant and those in privity with them are concerned. The question decided is, while the decision stands, a sealed and closed question. 8. A public officer is regarded as being in privity with his predecessor when both de. rive their authority from the samo source. 9. A judgment against a public officer in regard to a public right binds, his succes- sor in office. 10. All litigants are affected by the rule of the thing adjudged. 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