Omaha Daily Bee Newspaper, December 27, 1902, Page 5

THE OMAHA DAILY BEE ATURDAY, 27, 1902 WANTS NO FURTHER DELAY Judge Baxter Announces Determination to Begin Mi.ler Trial Monday. LAWYERS SEEM TO PLAY FOR MORE TIME Defendant's Counwsel Objects to Method ot Drdwifs Special Venire of Jurors, but Court Says Trial Will Proceed, Judge Baxfer of the criminal branch' of the district .court had a conversation yes- terday with Attorneys Ed P. Smith and Nelson C. Pratt which was earnest almost to the extent of being heated. It concerned the special venire drawn for the trial of Alonzo V. Miller of the South Omaha school board on a charge of bribery. After the conversation ended Judge Baxter sald yery positively: “I mnnowred that the trial will proceed at the designated hour next Monday unless obstacles \nsuperable are raised.’ Attorney, Pratt, after that, hastened to say: “We are just as anxious as anybody to have the case come to trial and 1 have 10 other idea than that it will, Monday. 1 don't think there will be any objection rafsed to that panel.” However, it was not Mr. Pratt who seemed most inclined to pick flaws this morning. It was Mr. Smith, and he grounded his_objection on the method of drawing the venire. He told the judge that instead of drawing forty names from the box last week and requiring the men to ap- pear Monday, they should have twenty days notice or else the gherift should be sent out to gather in forty men from the body of the county. “Well,” sald the judge very promptly, it you want a panel secured In the latter fashion, you can have it. We can arrange that right away. But Attorney Smith then appeared less eager and permitted the matter to drop without definitely committing himself. Throws Out a Reminder. Judge Baxter also reminded Pratt that Jast Wednesday, while Smith was engaged 1n another court, he (Pratt) had sald: “You may as well go ahead and draw a special \venire. It wjll have to be done: sooner or later anyhow, you have not jurors enough now,” and that he had Indicated nothin but approvali when the judge made in his docket the following minutes: ‘“‘December 24: Defendany in court. By consent of par- ties causo pagsed and set for trial Decem- ber 29, 1902 (at 9:30 a. m., and a special venire of forty jurors is ordered drawn from Jury box to report here at sald time.” This Initial case against Miller has been in district caurt seven times already with- out coming to trial. November 18 he was arralgned after proceedings in county court and pleaded mot guilty. December 8 he de manded that ;notice be given before names of additional witnesses be endorsed upon the informatfon. December 10 the continu- ance until December 22 was taken. Decem- ber 13 he was given leave to withdraw his plea of not guilty and to file a motion to quash. December 15 his motion to quash the information because indefinite was sus- tained, December 20 he demurred to the state's reply and objected to being re- quired to plead, such objection belng over- ruled, whereupon he pleaded not guilty and the trihl w for December 28. On that day’ Coun mith was busy with another case and on'the day following the speclal venire -nxh above referred to was made. DOES NOT LlKE HIS BARGAIN o ;.,.y:‘- mu+l e.to Get Out Supplylng Coal to County. < C. N. Dietz of the coal company bearing his name has offered the commissioners of Douglas county a profit of $2.50 per ton on 184 tons of hard coal and been turned down. The commissioners bought 300 tons at $12.50 per ton from Mr. Dietz and he dellvered 116 tons. He wished either to cancel the contract, allowing the commissioners $15 per remaining ton, or else the commission- ers to pay for the same in advance. Mr. Dietz and Mr. Connolly had quite a epirited controversy over the matter last Wednes- day, but Is yet nothing has come of it. It is said that Mr. Dietz interpreted the contract to mean that all coal was to be paid for as soon as delivered and that when he discovered that payment of warrants earlier than next July fs improbable he de- sired to break the agreement, arguing further that ‘the thids ‘on the sheds at St. Paul Indicate to What extremity the public may go In & cold enap. JUDGE EXPLMNS HIS RULING Gives Additional Rea Amended T stitutional, Judge Siabaugh's ruling of last Wednes- @day, in the case of Pusey against the Presbyterian Hospital assoclation, that the amended foreible entry and detaimer law of Nebraska is vold because unconstitu- tional, has become a general toplc of dis- cussion among lawyers, as the law is in- volved In a large number of cases yet to be tried and the ‘judge yesterdsy, for Gives point to the fact that excessive or irregulac eati :ia:':rlhn h.l'he di gestion. Nightmareor aight it's ime “ ence ln the undue f\'fl\nefl .l\ar eating, with the belchings and sour or bitter rising =0 often experienced after 0o hasty or too hearty eating. Dr. Pierce's Golden Medical Discovery cures d .pepu. and other diseases of the orath Tl e alfiod omtes of dluse tion apd unmuon. When these diseases are cured, the whole body shares in the increased strength derived from food P ly digested sud perfectly assimil- v _Golden Medical Discovery* and Dr. Catarrh Remedy have been of t o me.” writes (Frof ) Plessant A. vt o -bu Fulton Co. Ark. “¥Before I used the mentioned rem my sieep was not igestion bad: a continued feeting of 1 now feel like @ new man. Any ome 15 e of medical treatment for nasal catareh “g do no better thau 1o take treatment of Dr. V. Pierce. | know his medicines are all i this class of discases.” Sometimes a dealer tempted by the little more profit paid ou the sale o low meritorious medicines will offer the cus- tomer & substitute as bemf “just as ” as the “Discovery.” It is better r him because it pays better, but it is nnt &s. for you, if want the medicine that has o others, and which you believe will Dr. | was puzzled, and faltered out: the further enlightenment of some who did not understand the ruling, made the ex- planation that the amended law is uncon- stitutional because the amendment is not germain to the section which it is intended to amend. The original section read “Judgments shall be not a bar to any after action brought by either party,” whereas the amendment of 1875 read: “A tenant shall be deemed holding over whenever he has failed to pay his rent.” KNIVES FLASH ON » TRAIN Ilinols Miners Fight In C and Six Are Hadly ut. on Alton SPRINGFIELD, Ill., Dec. 26.—In a fight on a Chicago & Alton southbound train leaving here tonight, in which fifteen coal miners from Auburn and Pawnee were the | combatants, with knives. J. H. Havlin, a miner from Greenridge, who was attacked by the others, was brought here suffering from a dozen cuts, and his recovery is doubtful. Havlin made a hard fight and Inflicted serfous injuries upon a number of his assailants. Passengers were terrified, and when the train was stopped a number of persons left it between stations. Congressman Bardwell and the superin- tendent of public instruction were among the unwilling witnesses to the fight. ADD BANKERS TO BOARD © half a dozen were badly cut olidated Lake Superior Directors Restgn in ot PHILADELPHIA. Dec. 26.—The directors ot the Consolidated Lake Superior com- pany met today to consider changes in the organization necessitated by the recent loan. 1In order to make room for repre- sentatives of the banking syndicate W. S. Douglas, W. P. Douglas, Edward C. Lee and James Butterworth resigned and their places were fllled by Charles McDonald and Charles H. Tweed of Speyer & Co., New York; Horatio G. Lloyd, president, and Thomas Dewlll Cuyler, vice president of | the Commercial Trust company of this city. Joseph 8. Swartz was elected vice presi- dent to succeed E. C. Lee. FITZSIMMONS WINS Knoeks Ont Mike Ranke, Heavywelght, in Second Round. FIGHT BOZEMAN, Mont., Dec. 26.—Robert Fitzsimmons knocked out Mike Ranke, the heavywelght fighter of eastern Montana, fif. teen seconds after the gong had sounded for the second round. Ranke went down before a heavy jab on the jaw. Jeftries did not appear. It s understood| he will train before meeting anyone again with & forteit up. WOOD GOING TO KANSAS General Accepts Invitation to D with Club at Emporia Next Month, EMPORIA, Kan., Dec. 26.—General Leon- ard Wood has accepted an invitation of the Kansas Day club to respond to a toast at its banquet on January 29, General Funston and Galusha Grow will also probably be present. JOHN GREGG, HERO. Boy Who Will Get There Whether He “Fires” or Goes to College. John Gregg, 14 years old, of Principlo, Md. thinks he would sooner be a locomo- tive fireman than to have a college educ: tion. He can be the one or enjoy the ad- ‘vantages of the other, reports the New York Sun, for the Pennsylvania Railroad com- pany stands hat in hand (although corpor tions have no souls) to give John his choice. The explanation is that the boy saved the Colonial express from plunging into a wash- out the other day, and the company wishes to do the handsome thing in recognition of John's presence of mind. He d'scoyered the danger as the ralls began to tremble under the pounding of the great express, for it was flying along at the rate of sixty miles an hour with Its precious freight of human lives. John was only a barefoot boy with face of tan (to borrow from the late Mr. Whittier), but he rose to the occasion, tore off his coat, jumped to the middle of the track and waved his tatters with ‘frantic energy as a signal to the engineer to stop his train. - Before it came . to a standstill John had slipped down the embankment and disappeared. But that boy must be found, for he had not only saved human life, but he had rendered the railroad com- pany an ‘nestimable service. John was hunted up and the benefits of the college education, which the corporation proposed to give him, were pressed upon him. He 1 guess I'd rather be a fireman than anything." Boys of John Gregg's age prefer the strenuous and spectacular life to the aca- demic. No youngster of 14 wants to be anything else when he grows up but the pllot of a ferryboat, the man at the throt- tle of a leviathan locomotive or the fierce soldler in khaki alert to fight the battles of his country John Gregg can see mothing worth while in & humdrum college course and a foolish degree at the end of it. For him, the fireman, his sooty face a badge of honor. heaving coal into the roaring furnace under the boller. John wants to be in em- ployment where something is doing all the time—something that will make him the envy of the rising generation. But it would be wicked to turn his day dream to account or interrupt it rudely, so the soulless cor- poration has given the boy a year to think it over hoping that before the year expires John will wake up and decide for the col- lege education. If his family had put a money valuation ou his heroism, the com- pany could have liquidated the indebtedness by the parsimonious scratch of the pen, but it recognizes in Jobn Gregg the stuff of which are made strong men, such as a great raliroad wants io its service. Be sure that if the boy accepts the college education there will be a place for him on the staft of the Pennsylvania Railroad company when he graduates. Insurance Merger Abandoned. NEWARK, N. J., Dec. 26.—President Dry- den of the Prudential Life Insurance com- pany of America issued a statement today announcing that the plan proposed for the merger of the Prudential company and the Fidelity Trust company of Newark had been abandoned Annals of a Botder Tragedy Recalled by a Frontiersma BLOODY CHAPTER IN WESTERN HISTORY rd Demand of an OMeer Provokes dian Hostilities—Second-Hand Details of the Horrible Aftal Those who are famillag with the history of the great west have more than once had occasion to regrel the absence of any de- | tailed and definite information on the sub- {dect of the massacre of Bouvee's ranch. Studente of the history of that section of the republic have long suspected that at the time of writing their works on the western country, Mark Twain and dther { writers were unable to secure sufficient in- formation in regard to this event to glve it more than paseing mention, and this conclu- slon fs borne out In more ways than one, by certain things that have occurred of late vears, and which have tended to throw some light on the subject. ou are quite right in what you say about the lack of historical information on the subject of the massacre of Bouvee's ranch,” sald an old frontiersman to a Washington Post reporter. "It was an event fully as important as that of the Cus- ter massacre, yet for some reason which students of American history have never been able to divine, not one of the authori- ties on western history has ever been able to tell the cause of the trouble, or to state whether the Indians or the whites were in the wrong. However, I have been more fortunate in this respect than the general run of Americans, for, in 1858, I had the good fortune to learn the full and complete detalls of the massacre, what caused it, to. gether with all other facts as to when and how it originated. “In 1858 1 was statfoned at Fort Bridger, Wyoming, where I was a member of the Tenth infantry, forming part of the army of General Albert Sydney Johnston, sent by the government to chastise the Mormons for the part they played in the Mountain Meadow massacre of 1856. While there I formed the acquaintance of an old French- Canadfan halfbreed, a trapper, of the name of Pinto, and in the course of time became quite friendly with him. One day I hap- pened to mention the Bouvee's ranch m: sacre, which took place in 1854, the locale ity in question lylrg at no great distance trom Fort Laramie.. Ho replied that he was on the spot at the time, that he knew all the facts in regard to'the matter, and that if T cared to listen to bim he would relate the story of the massacre just as it oc- curred. India ‘were Hungry. “Early in 1884, he said, the Sioux, Cheyennes and Arapahoes encamped at Bouvee's awaiting| the arrival of commis- sloners from Washington to pay them their annuities and distribute rations. The win- ter preceding had been unusually severe, and the Indians were hungry and on short rations. While they were thus waiting, a Mormon appeared on the scene in a wagon, drawn by three oxen, which, in the west, we used to ¢all a spiked team, and the FOLLY LEADS TO MASSACRE|; i Indians crowded about him eager to trade ponies for the extra ox. By means of their sign language they offered him first one, then two, and then as many ponies as he Iiked, for the ox, but the Mormon was obdurate and refused to part with the ani- mal at any price. Whoreupon the Indians took the ox by force, giving him to under- stand that they would repay him several times over as soon as they recelved thelr money from the commissioners and were able to buy whatever they liked. “But the Mormon was not only unusually stupld, but unnecessarily pig-headed as well, and instead of relying on the honesty of the redskins, who most assuredly would have repaid the value of the ox several times over, he went to Fort Laramie cnd there lald' the matter before Lieutenant Grattan, who was then in command of the small garrison at the fort, consisting of some thirty men under arms, together with about twenty others employed in divers capacities other than that of soldiers. “Now, if anything Orattan was twice as stupld as the Mormon, and worse still, was a confirmed sot, one of & class of officers who in the history of American and Eng- lish colonization have been the cause of more wars with the savage and aboriginal races than all other things combined. With that Dutch courage which & man feels when under the influence of liquor, he or- dered out his small garrison, and taking the two twelve-pounders, the only artillery at the fort, marched down to Bouvee's ranch to bring the Indians to terms. “Ho had as an interpreter a half-breed, and through him he called upon the chief of the Sioux, a very old and gray haired man, for an explanation of the affair with the Mormon. Mind you, this wi golng on in a camp of 3,000 Indians. The chief told him that the Indians were very much distressed for want of food; that they offered the Mormon all the ponles he could drive away for the one ox, and that on his having re- fused to trade, they had taken the animal by force, but stood ready to make good the loss as soon as they recelved their money from the commissioners. He had barely finished when Grattan, between hiccoughs, satd: “ “There, that'll do; wa've heard enough out of you. Now, old man, you trot that ox out heré purty d—d quick, or I'll turn my artillery loose on you.' impossible, as the ox had been killed, cooked and eaten some time before, but his reply. made no effect on Grattan. Finally, the matter became so ridiculous that the chlet laughed in Grattan's face, whereupon the latter drew his pistol and shot him dead. Then he gave the order to fire, but before the report of the thirty rifies hal dled away the 8,000 Indlans were upon Grattan and his command, and in a few mo- ments all had been killed. “The Interpreter made his escape, but was captured, brought back and flayed alive. The Indiars had an idea that he was re- sponsible for the whole trouble, as they | were unable to belleve that any man could | be 2o foolish as to insist on another pro- ducing an animal when he kbew that it had been killed and eaten. Every member of the command was killed except a little drummer boy, who In fleeing from the In- dians stumbled and fell. A squaw, to whom time and again he had given food at the fort, fell upon him and tried to protect and save his life, In return for the kind- ness she had received at his hands, but the Indians dragged her away, killed the boy and compelied the squaw to eat Grat- tan's heart as a punishment for having tried to shield one of the whites. “Well, instead of waiting for the com- missloners, the Indlans went on the war- Dee. 26.—During a » In &' saldon Frank Schmidt shot George Vilan in the stomach, fatally wound- ing him. Vilan, it is sald, was Intoxicated and assaulted Schmidt and came back, it Is alleged, for & second attack, when the "shooting occurred. Onl Makes a Cha: NEW YORK, Dec. 2%.—R. R. Cable, for many years chairman of the Rock Island board of dircotors. has resigned that posi- tion and been elected chalrman of the executive committee. D. G. Reld has been elected chalrman of the hoard of directors, Mr Cable has lons desired to lighten his Tork agd e chl#o-#.‘ made at his re- finally beaten by a force of government troops sent against them from' Bridger. They could just as well have taken Fort Laramie, but the company surgom, Dr. Snyder, dressed the chambermaids, house- keepers and laundresses of the fort up in soldiers’ clothing, armed them and made them perform guard duty during the day, while the few men left at the post went on as pickets during the night. In this “rhe chief replied that such a thing was | path, and did considerable damage until| reputation and PlAIBUA in An. action for ay Le fooled the Indians into thinking that the fort was heavily garrisoned, and thus saved it from falling Inte their hands. steps e taken to reward him e sald that all he desired was sr extra allowance of whisky, which, of course, wes | ILLUSTRATED BEE eesssesccssee oo | ! i RIGHT AFTER CHRISTMAS comes The lllustruted Bee, the brightest and best regular visitor known to thousands of homes. It al- ways has something new, something tresh, something timely, entertaining and instructive for its readers. The number which will be out on Sunday next is no exception to The Bee's es- tablished custom. It will contain spe- clal articles and illustrations on the ¢ I following topies: (GEORGE BRUCE CORTELYOU, secre- tary ‘o President Rosevelt, who is mentioned in connection with the new cabinet position, secretary tm- commerce, has been prominent many respects for several years .ua yet little is known of the real man. His pleture is .used for a frontispiece and a sketch of his career accom- panies fit. + : WING SHOOTING IN THE SOUTH is the title of a copyright article by Martha McCulloch Williams. Mrs, Willlams is one of the best known of American writers, and her sketches of southern life have often charmed the readers o magazines and the bet- ter grade of newspapers. In this article she discourses on a tople with which she is thoroughly famillar and doek it most entertainingly, LLUXURY IN MODERN DWELLINGS tells of the many things that are be- ing introduced by bullders for the convenience and comfort of people who live in houses. Some novel and ingenious appliances are described. | that the duct the party has sald to the court, in ef- fect, that he will be satisfied with either of such requests and wili_ abide by the cholce which the court shall make of the; 2. When, in an action for damages for the aileged breach of a contract, the petition mierecites the agreement in an important particular, but the answer gives a true re- cital thereof, which s accepted by the plaintiff as Ccorrect, and the action pro- ceeds to trial and judgment in all respects as an action upon the contract set out in the answer, 8o that it is Apparent that the defendant has not been misled, the variance between the petition and the proof should, under section 135 of the code, be treated as immaterial 3. 1x. such a cose as {s mentioned In the lagt foregoing paragraph, if the court has given to the Jury the Correct ule of dam. ages for the alleged breach of the contract set forth In the answer it 18 not error pre- udicial to the defendant, it he afterward nstructs them what is the measure of damages for o breach of a contract sub- stantially such as is set out in the petition, it the measure so given Is also equally ap: plicable to the like breach of the contr as recited in the answer. 13574, Brooks against Stanley Dawson. Duftie, No, 3. Where, on a line of the same survey and between remote corners, the whole length of which s found to be variunt from the length called for, {i 18 not to be pre- sumed that fhe variance was caused from a defective survey of any part, but it must sumed, in the absence of circum- showing the contrary, that it arose from imperfect measurement of the whole line, and such variance must be distributed between the several subdivisions of the _proportion to thelr respective t Brror from Reversed. C., division 12406. 'Crum against Johnson Douglas county. Affirmed division No. 1" ‘Unreported 1. An action on an appeal bond fs gov- erned exclusively by section 14 of the code and not barred until after ten years. 2. Where different sections of the statute of limitations are equally applicable, the one allowing the longer perfod governs. 12416 Ellfott againet Eiliott, | Burt county, Affirmed. Hastings, C., slon No. 1. Unreported. 1. Bection B3 of the Code prevents the giving in evidence by a lawyer, only confidential communications properly e trusted to him in his confidential capacity. 2. Communications not confidential their character, and whose proof is neces sary to effectuate the instrument, In pre- paring which the attorney was engaged, are not objectionable on this ground. 3. Evidence In this case examined and held to suffictently show that the will in Question was signed by the drafteman, in the " testators ‘bresence, &t his. previously made request. 4 Evidence examined and held to warrant the instruction given by the trial court that there was no evidence of mental Inca- pacity on the part of the testator or of undue influence on that of the beneficlaries of the will. 12862. Commerclal State Bank, Crawford, agalnst Ketchum. Appeal from Dawes county. Judgment. Aibert, C., division No. 3. Unreported. 1. Where -the defendants appeal from a decree, In favor of the plaintiffs allow- ing an injunction, which is contingent on the doing of certain acts by’ the plaintiff, and the decree is affirmed In this court, such decree I8 conclusive on the parties, to all ‘matters thereby adjudicated on' an appeal “from.-a- subsequent order in the same cuse, 2. Where, In the absence of the district Judge and of the judges of the supreme court, a petition for an injunction is pre- sented to the county judge, and & tempo- rary Injunction allowéd by him, and the petition’ and order of the county judge forthwith filed in the district court, the in- Junction is not void on the ground that the order therefor was made before the action was_commenced. 3. Where, on a motlon to make a_decree absolute wWhich was contingent on the pay- | ment, by the plaintiff, of a certain sum and the costs in a certaln action, it appeared plaindft had complied with the decree on his part, save that, through over- sight, he had omitted to pay a small item of costs, which he thereupon tendered, the tender should have been accepted, and the rule_granted. . Evidenco examined and held not to sustain the finding that the defendants were unable to comply with the terms of the decree. No. 1238, Green against Diezel. Error from Douglas. Affirmed. Oldham, C., di- vision No. 2. pur- le to A rule of the district court requ! deposit $50 with the sheriff or master as a Error from Lobingler, C., | DAILY LIFE IN MEXICO is an article contributed by Cora Chaffee Bab- cock, a former Omaha woman, who is now living in the City of Mexico. She tells of some features of domestic ex- istence in the southern capital, with { Wwhich tourists do not come in con- tact. It is {llustrated from photo- graphs taken in the City of Mexico. CALESTHENICS AT THE HIGH SCHOOL is & full page of pictures made by The Bee's staff photographer at the Omaha High school. The girls who take the physical culture course are shown in various attitudes-of their class work. The groups will be found most Interesting to patrons of the school. AMERICAN SHOES were found tramp- ing all over Europe by Mr. Frank G. Carpenter. His experience in Belgium leads him to write a chap- ter on shoe leather, and the result is one of his most entertaining letters, Tllustrations are from photographs made in Belgium. INDEPENDENT AND INBIVIBUAL pict- ures are many and of a sort that will attract attention. No department has been omitted or slighted, and the number will be found mp to the standard. If you are nof how a sub- scriber you should leave your order | with your newsdealer today. Steeeetesesessesesorieses ch-er{ully granted. Thus, the story got out, which has been repeated time and again in army circles with all manner of elabora- tions and embellishments, that for having saved Fort Laramie the government allowed Snyder a drink for each and every star in the flag every day In the week, except Sunday, when he got a drink not only for every star, but every stripe In the Amer- ican flag as well 12368, Woodward against Kavan. Appeal from Douglas. Affirmed. Duffle, C., divi- reported. against Argubright. Appeal from Lancaster. Affirmed. Pound, C., divi- sion No. 2. Unreported. | 12244, 'Strahnka against Keittle. Error from Dixon. Judgment. Ames, C. division | o. 1, Persons engaged in selling intoxicating lquors under 1 e obtained pursuant to the laws of this state are nol liable for damages resulting from a like traffic before they engaged in the business, and they cannot be joined in, an action against other persons to recover for such previously in- flicied damages, although they may be liable to the same plaintift for subsequent wrongs of a similar kind. 2. Persons engaged in selling intoxicating liquors under licenses obtained pursuant to the laws of this state are liable in damages for all the legltimate and proximate cons quences of their traffic, and if they have induced habitual drunkenness in a previ- ously sober and Industrious man they are lable for a consequent thriftiess and dissi- ated career, followed by him, after they ve ceased to furnish him with lquors. 12344, Miles against Walker. Error from Frontier.” Atirmed. Hastings, C., division | o 1 Where & statement of & party to his | attorney before {nstituiing a criminal prose- | cution Included & staiement of facts claime | to have been persoually known to tho rosecuting witness, a jury which decides Phat such statement of facts was ‘untras was justified in holding the attorney’s ad- | vice glven with reference to such state- ment 1o be no defense. 2. In an action for malicious prosecution | the facts as to whether or not the accused erson was gullty of other offenses stmilar n character to the one charged in the com- | plaing ugainst him 15 jmma terial 3. An instruction which submits to the jury as an lssue in the case. & question of | act, which 1s admitted by the pleadings is properly refused. An’ instruction which Cafines malice ubstantially In the terms approved in the case of Tucker against Canuon, 32 Neb., #5, 18 not erroneous for that reason. 6. Telling the jury to constitute probable cause, there must be enough, facts and cir- cumstances 10 warrant cautious man in believing the accused gullty,” is not re- versible errol where defendant’ himself has asked to have the question of the existence of probable cause submitted to the jury. i lainiif's discharge by an examining istrate is admissible in evidence as fending to show want of probable eauas for the criminal complaint against him. Malicious prosecution is an attack upon it If successful, is entitied to recover his damages from that cause. 8. A court reporter's evidence, in which he swears from his notes to previous state- ments of a witness, should not be stricken out merely because the reporter admits on cross-examination that he has no recollec- tion independent of his notes. 12333, Chicago House W !e(‘llnl Lompuy against Stewart Lumber Company. Error ffom Douglas. Affirmed. Ames, C., div- slon_No. 3. 1 When, in an action for damages for an alleged breach of a contract, & party re- quests of the court, alternatively, two in- consistent instruetions, with respect to the interpretation of the 'agreement, and an example of what would constitute a breach thercof, and the court accepts and gives one of such requests and refuses the other, such party cannot complain that the couri erred in making the refusal. By such con- chasers at a sheriff's or master’ guarantee of good falth in their purchase, examined and held reasonable. No. . Harte agalnst Mchlnhn:a: Error from DOIlrlll mu"l[’ Afrms Hastings, C,, divk No. 1. nre 1. The word “transaction’’ as u; Ill se tion 329 of the Code of Civil Procedure, em- braces every variety of affaire the bject of negotiations, actions or contracts be- ! {ween, parties. ' Smith aguinst Perry, 6 eb., 2. The contents of letters and telegrams ‘which pass between parties in the course ! of a business transaction, not otnerwise | identified than by a witness, who has a di- | rect legal interest in the result of the sulit, | are not competent evidence as against the personal representative of a deceased per- son. No. 12401. First National Bank, Chadron, against Hughes, Error from Dawes county. C., division No, 3. Unre- Affirmed. Am ported. 1 A man owning a herd of 20 cows and 143’ calves, executed a mortgage containing the ‘following descriptions: — “Two hundred | 200) head of native cows, in ages from 3 to years, some branded L and others SH; | also with 100 head of above mortgaged cows are Included in this mortgage 100 head of their calves, which are to be branded SH. The above ‘described chattels are now in my possession on,” etc. Held that this de- seription was o' tadefinite as to be void against subsequent purchasers of a part of | the herd of calves, without actual notice | of the instrument. 2. When chattels are taken under a writ of replevin from the possession of a person ' not lrny defendant to the action he is | entitied, on motion, to be admitted to de- ! fend his possession without reference to the ! statute on the subject of intervention, 3. In replevin the plaintiff must recover, i at all, upon the strength of his own title and not because of the weakness of that of his adversary. 1298, South Omaha against Hager, Error from Douglas. Reversed. Oldham, C., divi- sion No. 2. ‘Where an instruction assumes to define the whole law of the case and omits a ma- | terial element from the definition given, it | ible error which may be reiled upon, although no proper instruction has | been reques by ‘the party seeking to take savant f the defect. . Jayue against Hyner. Appeal from Pnelr 4Mrmed. Baraes, C. = division In order to maintain a creditor's sut against a wife to set aside a conveyance of Ieal property made to her by @ third per. son, plalntif must allege and prove that the'relation of cred‘tor and debior existed between himself and the husband at the time such conveyance was executed, or that it was executed fraudulently with’ the ex- ectation on the part of the hueband that B Would become indebted ‘o the piaintif and to prevent, hinder and delay him in the collection of such debt when con- tracted 2. Held, that the finding that the wife was | the bona fide owner of the property in question, that it was conveyed to her in payment for money advariced by her t| er husband, the proceeds of which had | been used in' the purchase of the property which was the consideration for ‘he con- veyance, was sustained by the evidence. | 3. An action In the nature of a creditor's | bill ‘cannot be maintained to set aside the conveyance of property which is exempt to the defendant as a homestead. 12399, South Omaha against Wrzesinsk!. Error trom | divi- i 118 onl; | Buckley. Boys don’t ca They only s why so many homes consumption. lish the date on which the clalm was in fact e 7. Evidence examined and held that the verdict was not excessive and was sus- tained by the evidence. No, Kinney against Bittinger. peal from Kimball county. Affirmed. tings, C.. division No. 1. "Unreported. 1, Affidavits for continuance must be em- bodied in the bill of exceptions If the right to a continuance is to be examined on its merita vpon review. 2. An appeal in equity is not a proceeding to correct errors in the excluslon of evi- dence. The following opinions will not be offi- clally reported: 11069. Relss against Argubright. Error from Lancaster. Affirmed. Pound, C., divi- slon No. 2. Unreported. 1 An answer that the defendant “states and alleges that he denies each and every allegation” of the petition is a sufficient general dental, though not in commendable form 2. An oral chattel mortgage Is good as be- tween. the parties thereto, it is invalid only as -to creditors and subsequent purchasers in good faith 8. Creditor In this connection means judg- ment, execution or attachment credito subseguent mortgagee with notice s not so regarded. 11771, Bankers Bufldin; atlon against Thoma las. Affirmed. Hastini Unreported 1. A disclaimer of all interest in mort- gaged property prevents any right to object to a foreclosure decree, which establishes no personal labllity agalnst the answering parties 11960, Bourke against Sommers. from Buffale. Affirmed. Da; No. 1. Unreported. 1. Ail objections to the appraisement of operty to be available must be made Betore the salo 2. In a notice of sale of real estate under a decree of foreclosure, while it is proper to state the amount of the decree, such statement Is not essential to the valldity of the notice. Stratton against Relsdorph, 3 Neb, 214, followed. 3. Tn the absence of a showing to the contrary, the affidavit of the publisher, that the newspaper was one of general circula- tion in the county, 18 sufficient to establish the fact that the newspaper was a legal ne' aper. 12173, _Todd '1“"" City of York. Appeal trom York. d. ° Kirkpatrick, aivision No. 1. Unreported. 1. Where one discharges refuse or sewer- age into a running stream, {n such quanti- ties and in such a manner that the waters therein become foul, pol:uted and contamin- ated, emitting noxidus gases and odors, and thereby endangering the health and’ en- joyment of those living along the bank of Buch stream, interfering with the proper 4nd customary use of thelr property, equity has power to restrain the acts from whic such_consequences flow. 2 Where the evidence is confiicting and there is sufficlent to support. the finding of the trial court the judgment will be af- firmed. 12204 State ex rel Johnson against Holm. Brror from Antelope. Reversed with in- structions. Albert, C., division No. 3. Un- reported. he discretion conferred on the courts by section 623 of the Code is not an arbitrary, but a legal one, to be exercised within the limits of legal and equitable principles. Following Wallace against Sheldon, 56 Neb., 5. 12243, Martens agalnst Pittock. Error from Stanton. Affirmed. Barnes, C., divi- sion No. 2. Unreported. 1. A motlon to strike out a matter of defense, contained in an answer filed in the district court, for the alleged reason that it was not in issue In the county court where the case was first tried should be overruled where 1t appears that such matter was pleaded In the lower court and set out more fully and in detall in lhee);eadlnl to which the motion is di- rected. 2. Where parties have had verbal negotia- tions which have afterwards been reduced to writing the written agreement will be taken to control as their final determination and the parties will be bound thereb the absence of fraud or mistake. But where such written agreement is pleaded In a seply as a matter of defense to the alleg: tlons contained in an answer evidence of fraud or mistake in pmcunn, such agree- ment will be recelved without further plead- 18 L natruction complained of examined and held that it was properly given. 4. An {nstruction which contalns a correct proposition of law, but in which a par- ticular portion of the evidence is polnted out, the attention of the jury is directed to it, and its effect is unduly emphasized, should not be given. 12270. ~Western Land company against Appeal from Adams. ~Affirmed. Kirkpatrick, C., division No. 1.’ Unreported. he holder ‘of & tax lien 1s not a neces- asiy party to the foreclosure of a mortgage 4ubsequent in point of time to the tax lien, where the right to foreclose the tax lien has not yet accrued. 2. A party will not be barred of his rights by the decree in an action to which he was nelther a necessary nor a proper party defendant, and whose rights in such action were_not litigated or in fact determined. 3. Under the repeated sions of this court & party may bring his actfon to fore- close a tax ilen upon property at any time within five years from the end of the two years within which the owner of the prop- erty has a right to redeem from the tax sal 2271, Curran_against Hageman. Error fromy Greeley. Affirmed. Hastings, C., divi- elon No. 1. Unreported, Ap- Has- and Loan assocl- Appeal . division C., Error from Douglas. Affirmed. Barnes, C., division No 2. Pound, C., concurrin 1. An fnstruction which' in addition to a correct statement of the law contains an sumprion of the existence of a material fact upon which there was no evidence offered or recelved and directs the attention of the jury to and unduly emphasizes a part of the evidence should be refused 2. An instruction which submits &n issue to the jury not ralsed by the pleadings or supported by the evidence is erronecus and was_properly refused. 3. Where 1. appears that it was the custom of a city clerk to make no record of claims presented to him for damage ugainst the city, but simply to file them | and place them'In a receptacle kept for that purpose to awalt the action of the souncil, that an orfginal clalm so filed was Jost and could not be produced, secondary | evidence may be received to establish the facts relating to the filing thereof. 4 In such a case the recorded proceedings of the ety councl, reciting that such claim was before (hat body for consideration | about the time it was alleged to have been filed, 'may be read in evidence for the pur- | gose of showing that & claim was in fact e 5. Where the evidence disclosed that the platut ff's attorney had matled a claim to | the eity clerk, that it was lost, that he had kept a carbon copy of it whi¢h he pro- duced and properly identified, the court did not err in allowing such copy to be read to the jury to prove that the claim, in form and substance, complied with thé require- ments of the law 6 Where the person wno was the city | clerk at the time the claim was malled o him was no longer in office and is beyond the jurisdiction of the court, a letter writ- ten by him o plaintff's dttorney al or near the time he received the claim, 'n which he certifies under his hand and the | seal of his office that he recelved and filed it on a dat jamed therein, his ll‘nllure thereto belng duly and properlv identified, was sroperly recelved ln evidence (o estab- | erty among those en 1. Where a motion has been sustained in part and overruled in part the maker of it, who has taken no exceptions, cannot com. plain of error In its overruling. 2. An objection of misjoinder of causes of action and of parties defendant must be taken before going to trial or the objection will be deemed walved. 3 To authorize a review of errors occur- ing at a trial & motion for new trial is essential in a; it 18 in & law case. 4. Petition examined and held to set forth sufficlent facts to show a cause of action in favor of plaintiffs and against defendant 2. Michigan Trust Company against Cliy ot ed Cloua. Appeal tram’ W eision Affirmed. Dufie. C. Division No, 3. Unre- ported 1. Laches cannot usually be cha against a party for falling to bring an tion to enforce an equitable claim If he acts within the time allowed by the statute of limitations for commencing a corre- sponding action at law. 2. One of several parties whose debt is se- cured by a trust deed may maintain an acton to foreclose the same on behalf of himself and the other parties Interested in the sccurity, and the court will distribute the fund dl‘mln‘ from a sale of the prop- a tuereto. 3 Where a mortgage I8 made to secyre the debt of a third party it is a sufficient ompliance with sections 860 and 851 of the | Code of Civil Procedure to aliege and show | | the party whose debt think of today. It’s the parents who must watch and worry. They know what exposure to the wet nnd cold means —tender throats, sore lungs, hard coughs. keep on hand Ayers Cnerry Pectoral Just a single dose, when the cold first comes on, is often sufficient. Your own doctor will explain why this medicine is s0 good for coughs of all kinds, for bronchitis, and even for Three sizen: 28c., Sbc., $1.00, *In the winter, when the children take cold 0 easily. hand. It is & wonderful medicine for throat and l-ns‘l J. C. AYER CO., Lowell, Mass. ways keep Ayer's Cherry Pectoral on Toubles. RS, BOFHIA KRiETER, Brookiyn, N, ¥. that judgment has been obtaine the m ~tgage was made to secure, and that th. sherlff has made a return 'to an execution lssued on such judgment ““no property found. 4. Where the creditors of a bank agree to an extension of time of the payment of their claims on the condition, among others, that certain of the stockholders of the bank shall secure the payment of such claims by the cxecution of a trust deed to real estate, the gruntors in such deeds can- not by an agreement among themeelves and without the consent of the creditors determine the order in which the trust company shall be sold or compel the cred- 1tors to exhaust the property of one before that of another is resorted to. 5. Where a trust deed Is made to secure the payment of certificates of an insolvent bank and contains a condition that upon the payment 5 the sum of $10,00 to the trustee the property shall be reconveyed to the grantor, the payment of such eum to the trustee entitled the grantor to a re- conveyance, but the purchase by the gran- tor of debts owing by the bank, and es clally of debts of a class not secured by the trust deed, does not release the trust estate from liability. 6. One who purchases land with knowl- edge or notice that another holds a lien against the same to sacure the payment of a'debt takes the land subject to such len, although the same has not been recorded. 12204, - Burke against Tewksbury. Appeal from Dougl d. Albert, C.” Divi- slon No. 3. Unreported. 1. In an actlon to subject real estate, the titie to which is held in trust, to the pay- ment of Judgment against the cesuit aue trust, it 1§ immaterial whether the cesul que frust was insolvent or indebted to the Judgment ~ creditor when the trust was created. agalnst 2. Evidence examined and held sufficient to_sustain the decree of the district court. 1243 Peimer against Fidelity Mutual Fire Insurance Company. -Error from Frontler. Affirmed. Ames, C. Division No, 8. Unreported, When the plaintift has rested his case without sufficient evidence to sustain a verdict in his favor the court should in- struct the fury to return a verdict for the defendant. 12359, Mathieson -E ainst Omaha Street Rallway Company. Error from Douglas. Division No. 8. Unre- Affirmed. Ames, C. ported. LA witness need not be an expert in order to be permitted to give his opinion of the rapidity of motion o famillar objects allway trains and street cars, but st Do hows 18 Bave had: Laits have avalled himeelf of, an opportunity for ob- servation of the case in hand. 2. An ordinance regulating the speed of electric street cars ix {mmaterial In a_case in which it is not shown at what rate of speed a car, alleged to have caused an in- Jury, wa t, at the time mov!nfi 12348, against Dawes. Krror . Afiirmed. ~ Lobingier, C. Division No. 1. ‘Unreported. 1. A petition in an action to recover the vaiue of corn which sets forth the corre- epondence between the parties may be oven to the charge of pleading evidence, but if the corréspondence discioses that tha price and terms of payment were communi- cated to the prospective seller, though no particular corn was mentioned, the peti- tion {s not, on account of such omission, objectionable as fafling to state a_cause of action, If it aléo alleges the delivery of the corn, 2. A purchaser of land at execution sale fs entitied to all crops planted thereon after confirmation. 3. One who has purchased corn relying upon the title of the seller, but who ls later vised of the claims of a 'third party, may protect himself in the event of suit on be- alf of either claimant by fillng an afi- davit {n the nature of a bill of interpleader provided for by section 48 of the code. LUCKY NUMBERS. Seven and Eleven Have Brought For- tune to Senator Alger. Senator Russell A. Alger of Michigan is not ordinarily a susperstitious man, says the New York Sun, but he has a very ten- der spot in his heart for the numbers “7-11," which have been connected in some manner with almost every important event in his life, and in many minor matters be- sides. The mauner in . which these two “policy numbers" have pursued him through life was brought to light by a little incl- dent which occurred sirce his arrival at the Arlington hotel on. November 27 as one of a party of seven, when an express pack- age numbered 77-11, on which 77 cents was due, was brought to him at the hotel by express wagon No. 7. - The coincidence of numbers became more marked when it was noticed that the express frank held by the senator was No. 7. Mr. Alger did not seem at all surprised when the matter was called to his atten- tion, and the foilowing facts will show why: He was born on February 27, 183, both of 'his parents died when he was 11 years old, and for seven years following, ho worked .on a farm. He was aGmitted to the bar March 7, 1859, and. the degree of LL. D. was conferred on him by Hillsdalo college May 7, 1885. He was made colonel of the Fifth Michigan ‘cavalry on June-11, 1863; breveted brigadler general of volun- teers July 11, 1865; appointed secretary, of war by President McKinley in 1897, and made United States senator on September 27 of the present year. To Inspect Paris Gan Plants, NEW YORK, Dec. 26.—Semi-official an- nouncement was made today. that George C. Knapp, president; Anthony N. Brady, vice president; and C. K. G. Billings, cheirman of the Board of Directors of the Peoples' Gas company will soon . sail for France to inspect the gas industry in Parls with a view to bringing about a merger of the several gas companles in that eity. Tells of Traunsferred Cash. WASHINGTON, Dec. 2.—The United States treasurer sald today that so far during December $1.446.000 in eurrency hud , been transferred_to New Orleans agaipst deposits In New York, §100,000 t6 San Fran- | clsco and $1,369.000 to Chicago. These fgures | are over $1.500 000 below those for e ember, | 1900, and about §2,000,000 below those for last December FIGPRUNE CEREAL A grain and fruit Coffee—nourishing and invigoraung, SOLD BY ALL GROCERS