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About Omaha daily bee. (Omaha [Neb.]) 187?-1922 | View Entire Issue (Jan. 11, 1886)
THE OMAHA DAILY BEE MONDAY , JANUAJBY 11,1886.
Free from Opiates , Emetics anil Poison.
AT jmcaii T3 AND CZALZRI.
THECHARLES A. VOGELER CO. . BALTIMORE , MD. ,
Is nntiiro > own tr-mntr , ninilo from roots
pntlieroil fiom foii'slsor ( ifnrjtln. Tlio above
rut rcpriM-iiln tlic method of Its tnnntifncturo
twpntv years niro. Thmlnninnil liui liocn ttrnd-
nally ( nciciisliii ; until n JICO.lJOQliilirntorj'isrow
lii-ivswiry to Mimilv tlio tniOo. Tlil.t jriunt VCJT-
litiihlo lilooil rnrlllcr cnrei ciinccr. rnlm-rli ,
fcrofiilii , ti-zonin. ulcer , rliniiiinitl-iin ntnl blood
tnlnl , lioriMlliitry or otherwise , without the use
N. Y. ItW. . Kid st. Drawer U , Atluntos , Oa.
W H HIS Ed
017 fit.Chnrl < ; MNt.Bt.
1 rfEuUrnrnJutteof two MeJle lCollrj:5i : , hm V o lonctr
CLKif j la the np aal trcAttucot o f Cimoitc , NKBTOCI , S r
mod Hiu n lM iifl > * Miananr other 1'tiyilelto JaSl. Louli ,
, * ! IT | ' pcri how aua ll oldrcilltnti know.
Nervous Prostration , Debility. Mental and
Physical Weakness ; Mercurial and other AHec *
tlons o ! Throat * Skin or Bones , Dlood Poisoning.
Old SOrCS ant ] UlCCrS , bra trc trJ wllh unr-irmlleled
Illsc'ascs Arising from Indiscretion. Excess ,
Exposure or Indulgence , nhieh vroJa * * Bon r th *
follQwtns cCeeti : Hrjr omoettt dtbllliy , djmn * i of itht
ttTerilcD totba i clei/of fomtlei , eoafutloa of Idtai , tto. ,
rontlcrintMnrrlRRo Improper or unhappy , r *
prrraiDfiitlj curoa. l' mphli(3fi ( page ) oo theibove , tent
In plc < l ar iop f free lo * ny addrf ti. Coniulittloa &t of-
Beer It/ mall frf * . Inrltej anil itilttly c oflJiutlal ,
A Positive Written Guarantee firen incv rrc .
r&Mccii . Ucdi iofl > eatcvcrjrwli riiljrutlt ) or e
300 PAOES , FINi : PLATES. lfc nt oloiL inJ rllt
tloJInr , itfcled Tor OOo. lo iioOftoreurreae ; . Orar flftf
Fomlrrful i > tnpl9ture , true to life I urtlcl-ion tb followtcc
titjcctit wt o tn + f rairry.-wlionot. whj ( ucahooj , woaitn.
loot ] , jihrtlful d eir. etToet * ofcelibiej and exetti , th * T b/i.
l ° lf J orrfitr ltictfon , aoJ m ny mor . ltu e utrrl4 or
1 I htvo A posltlTu riiifld j fur the fttiora il ! oa < io ; tir It i
CIO thnuitAndiof CfttivoftUo worst blnrt end or lone
iuuieii.cK < 7timt i i i "fniT\\Jo norri.KM fitHa.
If pthor with u VAhtTAlU.KTIltHTiyCoii tliH ilUuMJ
toUTeuP'T r. ( JivrtxtiT * > i iiU I * O uddr KI.
v Mt , T. A H 1,0CUM 111 1'a.irlSl. . New Tr *
Spasms , CoJivul-
Dance , Mcohol-
V ; SVphlltlt ,
Scrofula , A"f7i /
vtt , UglyBlooa
Diseases , Dyiptp-
sla , Nervousness ,
, T , r - i i Kbcumntlsm , !
Ift'mous Weaknca , Brain Worry , JStootl Sores,1
B , Costicctiess , Nervous Trostratlon ,
'JtiJney TruuUet and Jnvgularltfa.
Wlio CWPS for the doctors' sneers wlion this
Infallinlu rcinody is at liaiiU ? The anilctnl
vllllliul It to liaaronstltulloa&lsiK'ciac.ttiiil
& fountain of vitality ami visor , as relrcslilnz
anil cxhlltnitliiK iisacool.jrusmiiK Bjirlnn ot
n-.itertotlioiiarclic'tlanil faliitlnu traveler In
the desert. To decline tnklnRnsurorcineily
w lion scc ! ! Is to court SHfTcrlnKnnil Invite deal h.
f T" C'urreni > uiiiltUco ! frceljr aubivorutl. _ J
rho Pr. S. A. P-ICnHOXDOTIXB CO. , St. Joscpl , Mo.
. Sold by nit DrucKlitn.
4 $ l.co per bottle , or four bottles for S3.oa
FOR SALE BY C. F. GOODMAN.
IS CONDUCTED UT
Royal Havana tottery
( AOOVnllNMUNT INSTITUTION !
Drawn at Havana , Cuba , January 2-16-30 , 1886
( A ( lOVKMNUKNT INKTmiTION )
Tickets Inl'ltths ; Wholus tJ ; Vrnvtloni pro
Buujeot to no iiiiinlpuliitlon , not rontiollod by
Iho purtlra In liitorost. Ills the fiilrest thliiff 111
the initiirii of cluinco In uxlstuiii'o.
For tloKi-lH npiily to SHU'SV A : CO. . 1212Ilroa < ] .
Ivny.N. V. City : M. O'lTKN'S is CO. , BI9 .Mliln
fcront , ICunsiis City , .Mo. , or HjU3 Fm-imiii i-trcct ,
James Meal Institute
Chartered by th-StatcofJlll-
'nols ' for the express purpose
, of giving Immediate rellello
all chronic , urinary and prl-
Ivate di ase9. Gonorrhcca ,
VQIeet ondSypliill * In all their
' complicated forms , alto all
diseases of the Skin and
liiocd promptly relieved and
pcrmanentlycured by reme-
_ S } > rnuU'rartlrt. Seminal
Weikncis , Kieht Losses by Dreams , I'imples on
the Pace , Lost Man hood , i > ntltlrrtitrn ml , Tlitre
is no rxiierlinrnttnttt The appropriate remedy
n at once used In each case. Consultations , per
sonal or by letter , sacredly confidential. Med
icines sent by Mail and Uxpre&s , No marks on
packaga to Indicate contcnu or sender. Addretts
DR. JAMES.No. 204 Washington St.ChIcag.olll.
"CHICHESTER'S ENGLISH. "
Tlie Original mill Only Ui-iiiilne.
( ! > f < ud > l > r > KelUM * . ll w r of worlUlr.j lulntloBl.
lu.ll. iu lilo u LADIES. Ail. . - ' l rur l l > - > '
"CMclir > lrr > ii r.iill U" I Ul > < otb , ot Uicloo .
( n nii > illa ui for , -ill nUri in Itttot kjr rrlum walL
. 'l.lrhr 4'lirnilcul i'u. .
NAME PAPTR. ( lrr
5J-Ttii.da.a.Munr | , I'lilUdH. . ! .
At llriifiUlb Tradu lui'fllcit ' t ; I'ullrr Jf Fulliri
i'u. . Chlcai ; * , III.
A Clear Skin
! s only a part of beauty ;
\ > ut it is a part Every lady
fnay have it ; at least , what
looks like it. Magnolia
Balm both freshens and
A Batch of Recent Decisions , Interesting
to Lawyers and Clients.
Douglas County Must Pay Her Insane
C3 Tn.v l.nj Inir Down tlio Imw
from Wliluh There laNe
State ex rel attorney pcneral vs Douglas
eoiinty. .Imminent for plaintiff ( Mnxncil
J. , dissenting. ) Opinion by llccse , J.
1 The provisions of chapter -10 of
Ihe compiled statutes requiring tlio sev
eral counties in the slate to pay the ex
pense of the support and maintenance ol
insane persons having a legal settlement
in the counties from which they arc sent ,
nro not In violation of the constitution ,
but are valid and binding upon the conn
ties to which they apply.
a A county is not chargeable with the
support nnd maintenance of insane pur
tons soul to thu hospital therefrom , 1111
less the legal settlement is found to be in
! 1 The levy of a tax under the provi
motis of .section of chapter -10 of Iho
compiled statutes for Iho support of the
insanu having legal scltlcmcnt in such
county is a county tax to bo levied by the
proper couniy ollieors , and if levied upon
till the taxable property of the county
alike , Is not void for want of uniformity.
Cation vs Gnicnie. Krror from I'lnice
county. Allirinud. Opinion by liccse , J.
Any person liaving a judgment ren
dered by a county court without refer-
cnco lo thu amount of such judgment , or
whether rendered by Iho county court
( luring a regular term , or by thu county
judge when exercising thu ordinary pow
ers mill jurisdiction cf n justice of the
peace , may cause a transcript thereof lo
bu liled ill the olllcu of the clerk of the
district court in any couniy in this state
and cause an execution lo issue thereon.
Albert I'ombrrg vs 51. I. IIinlies. Krror
Irom Cumlng county. Jteveised nnd Judg'
niL-nt In this cotiit nisi. Uiilnlon by .Max
wull , J.
1 Where Ihe evidence on behalf of the
plaintill' and defendant in an action is
nearly equally balanced the "collet will
not bu set aside as being against thu
weight of evidence.
3 To irake it communication from a
party to tin attorney privileged , the rela
tion of attorney unil client must exist be
U In replevin damages for the delon
tion of Ihe property arc recoverable only
in case of u return. Jf the properly js
not returned the measure of damages is
the value of the property us proved , to
gether with lawful interest thereon from
the dale of the unlawful taking , Haincr
vs. l.i-o , 12 Neb. , .Ift'J.
1 Thu damages for the detention of
the properly \ \ here there is no deteriora
tion should not exceed n reasonable pro
portion of tlio value of the samu.
Whltall vs Cicssnmn. Error from Cumins
county. Decree modified and afllrmcd as
inodllicd. Opinion by .Maxwell , J.
1 Where money was paid into the dis
trict court in satisfaction of ti decree and
fnr distribution , and an appeal taken lethe
the supreme court , where the order of
distribution wa.s changed , held , there
being no order of thu district court re
quiring the money to be put out at inter
est , that a parly entitled lo part of the
fund , and who had obtained the same ,
was not chargeable with interest Ihereon ;
but money lo which he was not entitled
he was chargeable with interest at 7 per
2 A parly complaining of the taxation
of costs In the dihtriut court , must lilo a
motion in that court to relax the same
The ruling on thu motion to relax is sub
ject to review.
Kiiiiitnlile Assuinnce Co. vs Samut-1 M. Uro-
bst. Krror Iroin Adams county. Allirmcd.
Opinion by Maxwell , J.
1 Where Iho general agent of n lifo
insurance company employs tm agent to
solicit risks , the company will bu bound
by the contract of employment , unless
the person employed had noticu of pri
vate restrictions upon thu authority of
2 \yhe.ro the employment is admitted ,
but it is claimed that it was entered into
by the general agent in liis own name
and for his own benefit , where the ovi-
deuce is conllieting , the question must lo )
submitted to the jury , and its linding
will not lie set aside if sustained by sttt
Ilaml vs Phillips. Appeal from I'latlo
county. Decree nioiliiit-il and alllrined as
inodilictl. Opinion by Maxwell , J.
Under a slatttlu which authorizes the
allowance of an attorney's foe in certain
cases proportioned to the amount of re
covery , the debtor cannot , by pjiying a
considerable portion of the dent immedi
ately preceding the rendition of the
judgment , defeat thu recovery by the at
torney of fees upon thu entire sum for
which , but for thu payment , judgment
would have been rendered.
Van Hnsklrk vs Chandler. Eiror from
Adams county. Jteyersed. Opinion by
Maxwell , .1.
A defendant relying upon payment as
n defense , must , where it Is denied , prove
State ex rol "Lytlo vs County Commissioners
of Douglas county. Mandamus. Wilt de
nied. Opinion by Maxwell , J.
On an application for u mandamus
against the county commissioners of
Douglas county to compel them to call an
election in the city of Omaha for twelve
justices of Iho peacn therein , there being
six precincts , and alleging that an act re
ducing the number of justices in said city
lo threu was unconstitutional and void ;
held , that Iho court would nol in that
proceeding determine whether or not thu
act was in contravention of thu constitu
Mills vs the Slate. Error from Douglas
county. liuvcr.Hcd. Opinion by Maxwell , , ! .
1 A libelous elmrgo made by A against
Ii , contained in a letter written and
mailed in this stale to U , residing in an
other state , Is sullioicnt to render A liablu
in this state for Ihu oll'eiicn.
2 To render a husband liable for a
letter containing llbelous charges written
by his wife , it must appear either that ho
aided in or aiithori/.cd Ihu writing of thu
libulous matter ,
! J Where on nn indictment for libel for
matter contained in a letter signed in Ihu
husband's name , he was found guilty ,
and Ihu testimony tended lo show that
the lotlnr was written by the wife and
that the husband did not aid in composing -
ing or atitliorizo the nsu of the llbelous
words the , judgment was reversed.
Uonzon vs U. & M. Jt. It. Co , Error from
DoiiKlitR county , Allirmed. Opinion by
Maxwell , J.
Where in an notion to recover damages
for injury to propctly , and the cause of
Ihu injury is a mutter of conjecture , n
verdict in favor of the plainlill1 will not bu
sot aside at his instance becausu Ihe ver
dict is not as largo as it probably would
have been had the cauuo of the injury
been fully proved ,
State ox i el Kliui-r vs. Cain. Mandamus ,
Writ awarded. Opinion by Cobb , Ch. . ) .
At all tax gales , public or private , the
county commissioners of the proper
county may purchase for the n e and
benolit of their respective counties an.v
real estate therein which has been offered
at publlu sale for delinquent t'.Vxcs and
remains unsold for want dr otiter bid
Sti\ \ ' . ° , .ef rS' ' K'U' ' 1 vs. C.tln. Mandamus.
\N tit denied. Opinion by Cobb , Ch. J.
Jt lsj 0fc the duty of n county treasurer ,
no > v nas ho the power under thu statutes
of this slate now in force , to seize or sell
personal property for real estate taxes.
J'oil vs. narrow. Error fioin Yink county.
Allirmed. Opinion by Cobb. Ch. J.
1 When the day of performance of
conlrueU other than instruments upon
which days of grace are allowed , falls on
Sunday , that day is not counted , and
compliance with the stipulations of the
contract on the next day ( Monday ) Is
deemed In law n performance. Sailer vs.
Hurt. XX Wend. , 205.
-When in an action on a written con
tract a copy of the contract is attached
and referred to in the petition , n stale-
ment of tne terms of Hie contract in the
body of the petition will nol be stricken
out on motion as redundant nor us irrel
! ) For the purpose of effecting a for-
tcilure on money advanced on a contract
which has not yet been performed , the
parly claiming such forfeiture must show
a readiness and willingness on his part
to kcoj ) nnd periorm the contract in
1 Instructions considered nnd ap
6 In Iho case of a contract forthosalo
and delivery of e.ittlo at so much per
liouiid or hundredweight when upon
the day appointed for Iho execution
of the contract Iho seller refuses lo
weigh nnd deliver the cattle , and de
clares the contract at an end , in nn action
by the buyer for damages for Ihu non
delivery of the cattle , held , nol ineitm
bent on the part of the plalnlilY to prove
a tender of the purchase money.
Morrisey vs. SchlndU-r. Eitor from Cass
county. A. Mil mid. Opinion by Cobb. Ch.J.
1 The notion was brought against the
appellants and the Burlington iv Missouri
Itivi-r Itailrond company in Nebraska n.s
defendants. Pending the trial , plaintill
nskod ami obtained leave of ( he court to
dismiss his case as to the railroad com
jinny with costs. Held , no error , and
that Ihe Irial was properly allowed lo
proceed as against the remaining de
temlants. jilnlntifls in error , without rc-
ompnneling or rcswearing the jury ,
although the answer of defendants con
tained a paragraph in the nature of a
plea in abatement tor thu mlsjoinder of
the railroad company as a party do
2Thu contract set out in the proceed
ings was properly admitted in evidence
against tile remaining defendants after
the dismissal of the canstas against the
railroad company , although tin- said rail
road company was not a party lo said
U The defendantsMorrissey Brothers ,
being described in the petilion as "John
( ' . JIoiTi.ssey and Michael Morrissuy , do
ing business under tl.o name and style cf
Morrissey brothers , " they were sued as
a lirm to all intents and purposes.
1 Under the peculiar lacts and circum
stances of Ihe castal bar , held , that Ihu
evidence which temle.il to prove pluin-
lilV's claim for extra compensation for
performing the work set out in thu peti
tion tended also to disprove and contro
vert defendant's counterclaim for dam
ages alleged to havu been sustained by
him by reason of said work not having
been performed , in accordance with the
terms of tliu original contract.
( i It is competent lo prove by purol : ti
change or modification in the li-rins of a
written contract made by thu parlies to
such contract at a time subsequent to Iho
execution thereof. And the considera
tion pi the contract maybe a sulllch-nt
consideration for .such change or modi
0 Action brought by defendant in
error against "John C. Morris-oy and
Michael Morrisey , doing business under
the name and style of Morrisey llrolhors
and Ihe Burlington & Missouri rail
road company in Nebraska" for labor
and mechanical skill in the erection of
certain elevator buildings under a cer
tain written contract , and for certain ex
tras and expenses claimed under an al
leged moilitieation of thu terms of said
contract , thu verdict is as follows :
Anton cliindler ) In tin ; district court ,
vs > Xe
Morrlssoy Bros. , ct al. ) Verdict for plaintiff.
We , thu jury duly empaneled nnd sworn
in the above entitled cause and to try the
i > Mics joined therein , do lind for Ihu
plnintin" , and assess his damages at the
Mini of ! ? ! toU. ( .Signed by the foreman. )
Sustained both us lo form and sub
Jtosu vs IVck. Error front finncaster county.
Allirmed. Opinion by Cobb , Uli. . ) .
In a ease pending in the district court
an oiler made by defendant to allow
judgment lo bu taken by the plaintill'in a
certain amount thercin'staled and co > N ,
which oiler was in writing ami liled in
the ollico of llio cleric of said court but
was not served upon the pluintiii'or
his attorney , nor was it made in open
court , the plaintill' being pri.se.nt ! or
having notice thereof ; held , unavailing
to throw thu costs made after the liling
of such otter upon the plaintiir.
State for use , Cumins county vs Moran.
Error from Ciimliig county. JtevcrseU.
Opinion by Cobb , Ch. .1.
In an action on a recognizance taken
by a justice In a proceeding before him
under the provisions of chapter .17
of the compiled statutes , la-Id , that
such recognixunco wa.s binding upon the
security thereunto , although thu samu
was not recorded by the justice in his
docket , and was signed by Iho parties
Upnfnlt vs Nelson. Error from Cumins
county , Alllrmecl. Opinion by Cobb ,
Whore in an action for real properly
thu answer of the defendant put in issue
the title ot the pluinliU' , but alleged no
equitable defense , a ( hiding and judg
ment for the plaintiir upheld ; notwith
standing there was evidence which under
proper allegations would havu tended to
establish an equitable defense .
Scdswlck vs Dixon. Appeal from York
county. Allinned. Opinion by Cobb , Ch.J.
1 Where a promissory note secured by
mortgage based in part upon an usurious
consideration is tranaforrcil be.foro ma
turity to a bona fide purchn-ur for value
without notice and in the usual course of
business , hu takes it free from Ihu ik-fcnso
of usury. Worleudykevs Mehan , 'J Neb. ,
2 An attorney' * fee under Iho act of
February 18 , 1872 , when allowable , should
"bo fixed" and allowed by the trial court
upon a recovery of judgment by a plain-
till' , and when oucu fixed wilhin thu stat
utory limits , thu amount thereol will not
bu changed by the supreme court.
Cox vs Kllswoith. Appeal fiom Hamilton
county. Alliimeil. Opinion by Cobb , Ch. J
1 The death of an absent person may
ba presumed in less than .seven years from
thu datu of thu last inlulligencu from him ,
from facts and circumstances other than
thoio Miowing his exposure lo danger
which probably rcsulti-d in his death.
Tindnlo vs Conn , Mut. Life Ins. Co. . 20
Ja. , 170
2 Evidence of diameter , habits , do-
mcMiu relations and thu like , making the
abandonment of home and family im
probable , anil showing a want of all those
motives which can bu supposed to inllti-
euco mon to such nets , may bo siilllt-iont
to raUu the presumption of death , or
from which the death of one absent and
unheard from may be inferred , without
regard to Iho duration of such absence ,
Aduins vs Thompson. Error from Cass
county. Allhined. Opinion by Cobb , f
Suit brought on an imdnakfig , or
bond entered into for
jwallng irom t ho jud nftnt of , \ justlco of
thopeaco. JIol-J , that the defendant was
estopped. ' , o dmiy that an appeal had
been Taken in the case in contradiction
of his undertaking or bond , executed in
conformity to the statute for the purpose
of perfecting nn appeal , although the
samu was filed with the justice of the
peace after the expiration ot thu time
limited for that purpose , and the said ap
peal was dismissed in the district court in
for ( ho said undertaking or bond having ilJ J ]
been liled outof time.
( sou Uudtucr vs ti
Kilpatrick , 14 Neb. , ! M7. tifi
Slate ox rel Mnttonn vsll. V. 11. It. Co. Mnn- fi
damns. Writ allowed. Pplnlmi by Max
" ' " " " ' !
Under the provisions of the cpnsjtitu-
tion and statutes relating to railroads , a
where a railroad is built trough a town of
of 1,500 or more inhabitants , and it Is nee
cssary lo havoti station at that place , the
corporation may bo compelled to crcc
( ho same witH thci necessary sidetracks
notwithstanding it has n station at the
junction of that nnd another line ono ant
a half miles distant.
Stale ox tet Held vs Scott. Mandamus dc
nlcd. Opinion by Maxwell , J.
1 The board of educational lands am' '
funds will not hd compelled by inauda
urns to award tx liontrnot of lease ( o a pnr
ticular bidder .unless . the sum bid is in ex
cess of that Used by statute , and is a
least the full rental value of the land am
there is nn rtUusb of discretion on the
part of the board in refusing to execute
S Where n party at a public letting ol
educational lands was the highest bidder
but afterwards refused to accept tin
lease and pay the amount due thereon ant
perform , the contract on his jiart , the
board will not bo compelled to accept n
lower bid ntterwards made by him foi
Ihe same tract of land.
Lopln vs Paine. Krror from Adams ronnly
Humandcd. Opinion by Maxwell , J.
One S. brought tin action to foreclose
n mechanic's lien against L. & Itho
owner of the fee , P. A ; Co..material men
being made parties. P. & Co. answered
selling up the amount duo to them am
claiming a lien. The court found ii
favor ot S. and against P. & Co. . and
rendered a decree accordingly. P. v Co ,
appealed , and on the hearing' their claim
wa.s helil to be valid , and the cause was
remanded to the court below to enter
iiidgment in conformity lo the opinion ,
Ilelil : 1 That as Ihe inleresls of the
parties were inscporably connected , the
appeal brought up the entire case and Iho
court must enter a now decree. 2 That
thu court should adjust the cquitii-s be
tween S. and L. & L. , and if necessary
take additional evidence for lliat pur
l1C. . AM. . V. U. 1 ! . Co. vs llrown county
injunction denied. Opinion by Maxwell , , !
1 Drown county was created In March
18Si ; , being attached to Holt couniy mulct
the gem-nil statute for election , judicial
and revenue purposes. In June , 1881 ! ,
the county commissioners of Holt countj
levied state , county andschool tu.NO.supon
thu property in Hrown county. Jn July ,
188U , an election was hold for couiitj
olliccs , ami ollicers elected who qualified
and en It red upon the duties of tlieii
olliccs. In April , 18SI the F. , K. & M. V
railway company paid to thiMivapuror ol
Holt couniy Ihu taxes levied by Ihu
couniy commissioners of that county on
the railroad in iiruwn county. Held , that
the taxes should Lave been paid lo Iho
treasurer of llrown county.
2 Upon Ihu organization of a new
county and the election and qualification
of its ollicers , the ligament which bound it
to the county to which it was attached for
election , judicial and revenue purpose.- ,
is .it-vi-red , and all business must there
after be transacted with the new county. .
Dewcy vs Palue. Error from Adams county ,
A Dinned. Opinion by 1'ccsc , .1.
A leased certain real cstalo to 15 for a
term of two years , II agreeing to pay
tin-rotor the- Mini of $ ! ( > ( ) in installments
of ! ? 10 on the llrst day of each month
during the tf-rrh , which extended from
January 1. ISSl ) , tii January I , 18S2. Tin
lease- was in writing. On the 12th day ol
October , 1S80 , tlio lessen for value ami
with the consent of tin- lessor transferred
his lease by pnroi lo C , who took posses
sion tliereundor and held until the Dili ol
March. INS1 , paying runt , lo A according
to ll.i- terms if | tint lease , when he vacated
and refused tu.patyront for the romnindei
of the year untltciVm. Hold , O was liable
for thu rent , whether he occupied the
premises or npt.
Jacoby vs Mitchell. Error from Lancaster
county. Alllrmelli Opinion by Kecsi- , . ( .
I AflidavilJT'iisttd as evidence upon thu
hearing of u motion in tlio district 'coui'l
will not bo considered in this Hiiprumn
court unless ijrfcseVvod as a part of the
record by a bill of exceptions , and when
such papers nru impropurlv attached to
the record they will , upon motion , bu
stricken from tins files. Graves vs. Sco
ville , 17 Neb. , BOH.
2 When an appeal is taken lo the dis
trict court from tlio judgment of the jus
tice of the peace , and thu plaintill'fails to
prosecute his appeal by liling his petition
within the timu required by la\y , and no
excuse is shown which would justify the
delay , it is not error for the diMrict court
nn motion and notice to the plainlin" to
non-suit the plaintili'ami render judg-
menl as provided by sections 1010 and
1011 of tile civil code.
II When a motion is argued and sub-
milled to a court for a decision it is thu
duty of Ihu court to decide thu name upon
the record as it n.\isted at thai timu , un
less Iho submission is set aside or it is
brought to the knowledge of the court
that a party desires lo bu heard upon a
dificrunt condition of the record. Any
papers tiled after the submission without
leave of the court or the knowledge of
Ihe judge , will not bo considered in re
viewing such decision.
Crow vs lit'wen. Error from .Adams county.
Ho versed nnd cause dismlsssed. Opinion
by Icc ! > c , J.
County courts have no jurisdiction lo
hear and determine actions brought
against ollicers for the penalty Imposed by
set-lion L'4 , chapter 28. compiled stat
utes , for taking illegal fees.
Clay vs Tyson. Error from Yoik county.
Allirmed. Opinion by Iteesc , J.
1 A petition which alleges that A was
indebted to thophiinlili'aiid that H recov
ered from A a largo amount of personal
property , and in consideration thereof
agreed to pay Ihu debt to pluinliH' , and
that B promised thu plaintill' , who was
about commencing suit , that ho would
pay the debt and thai if pluintill' would
forbear .suing until hu could sull thu prop
erty he would pay him , and that in con
sideration of such promise plaiutin" did
forbear until after t no property wa.s sold ,
but that Btlien refused payment , elates a
cause of action and onu which is nol
within the b'utitlu of frauds.
2 When an attorney is employed for a
particular purpose , and before such em
ployment he informs his client that hu
1ms been , employed ogaiiibl htm , in a casit
not connected wjlh thn employment and
with full knowledge of stiuli fact thu em
ployment is nitiile for the purpose re
quired , the relation of attorney and client
docs notuxistso iTiras the puvpo.su of thu
first employment js concerned , and statements -
monts made ( ( > ' the attorney with refer-
OIICQ to _ any fact In dispulo fn the contro
versy in whch ! _ the first employment is
made is not a "privileged communication.
8 A judgment will not bo reversed for
errors committed on the trial of a cnusu
which arc not. pit-judicial to the parly
Mori ill vs Teneidiin. Enor from > Jf
county. AlllrniMlj Opinion ly } ik-ese , J.
1 Action for JlamaKs for alleged
malpractice. Petil.Uin examined anil
held lo Male a'l. ' ' .su of action.
2 If Jiyj0tiuiiij.ai questions are re
sorted , to "in examination of export
Yiincsses theyniiH he so framed as to
fairly rolled J'acts , , , cither admitted or
proved by other 'witnesses. O'llura vs.
WoJlB , 11 Neb.iOU. . When this is done
will be sulllcient.
11 The jurors uro the triers of fact In n
cause tried to them , and their decision
iilHin conllieting testimony cannot be set
aside unless clearly wrong , Under this
rule it is held that the evidence is btilli-
cicnt to sustain the verdict.
Johnson vs. Mo. Pac. It. It. Co. Error from
Douglas county. J to versed. Oulnlon by
ItUCbC , J.
1 When amended pleadings are filoil.
the district court and properly certi
fied to Ihu supreme court as a part of tlio
transcript , it will bo presumed thai such
pleadings were filed regularly ami with
thu knowledge or permi.-sion of ( ho ilia-
trie t court and they will bo treated as
properly in the record.
2 If the eviduncu introduced ( ends in
any degree to sustain all the allegations
thu petition the cause should bu sub
mitted to the trial jury , and it is error ( o
instruct them to return a verdict for de
8 Though tt is true in many cases Hint
whore the facts are undisputed ( he cfl'cct
of them Is for the judgment of the court
nnd not for the decision of the jury , this
is true in that class of cases where the ex
istence of such facts come in question
rather than where deductions or infer
ences are to bo made from them , And
whether ( ho facts bo disputed or undis
puted , if diflercnt minus may honestly
draw diflercnt conclusions from thorn , the
case should be left to the jury. A. & N.
15. K. Co. vs Bailey , II Nob. , JMJ.
4 In nn action for damages alleged lo
have been sustained by the next of kin tea
a deceased whoso death Is alleged to have
been caused by the iirgllcnce of the de
fendant , the question as to the amount of
damages sustained by reason of bitch
death is for the jury to determine under
such testimony , as to ( ho measure of
damages , as mny bo feubmilled ( o ( hem.
C Where a railroad company linds it
necessary to run its trains on the first day
of the week , commonly called Sunday ,
and also linds it necessary for its em
ployes to labor on that day , In Koepingits
track In jiropor order ami repair tor thu
use of Mich trains , nnd while so engaged
an employe is injured or killed by thu
negligence of Rtieh railroad comp.Miy , tlio
fact that the accident occurred on that
day will not exonerate the company from
< J In tin action for damages caused bv
n personal injury rt-Milting from the al
leged negligence of the defendant , and
somu te.-limony Is adduced tending ( o
prove such negligence , the question as
to whether the defendant was or was nol
guilty of negligence mnsl bo decided by
the jury , and therefore all evidence boar-
inirtipon Ihnlsubjocl should be submitted
Leiiiliton vs Stowarl. Etror from Lancas
ter county , AlUnned. Opinion by lleese , . I.
l--Tho of married
property a woman ,
which is her several and separate prop
erty , is not liablu lo levy and sale for the
satisfaction of the debts of bur husband.
'J hereforo the purchaser of her property
at .such sale would acquire no titlu by
such purchase , and would not bu entitled
to the possession of ( hu property as
ngaiiiM the owner or one holding a titlu
and claiming under her.
2 A chattel mortgage may bo void ns
against thu bona tide creditors of , or pur
chasers front , the mortgagor , for defec
tive dcscTiption of the property mort
gaged , ami yet good as between the im
mediate parlies lo the mortgage ; especi
ally wltote the properly included in the
mortgage is identified by them ,
! -As J between thu mortgagor and
mortgagee of personal chattels , a specific
and particular description of tlio several
articles mortgaged from which to identify
them from other like articles of the
mortgagor in the same collection is not
8 A previous ruling by the appellate
court iion ] ) a point distinctly made may
be only authority in other cases lo bo fol
lowed or nllirmcd , or to bu inodilictl or
overruled according to its intrinsic
merits ; but in the case in which it is
made it is more than authority , it is u
final adjudication from Iho consequences
of which the court cannot depart nor Ihu
parlies relieve themselves. Hiatt vs
Moorehcad vs Adams. Error from Webster
county. Keversed. Opinion by Maxwell -
. well , .1.
1 Where an order of the district court
extended the timu forty days from the
adjournment of the court in which to
"present" a bill of exceptions , held , to
mean the time within which to prepare
the bill and present tlio same lo the
adverse party or his attorney.
2 The statute relating lo bills of ex
ceptions being remedial in its nature will
'T/d liUorUliy1 coiisl rued.
" 'ii P. p'cr.sjhabill ' of exceptions marked
by the initials of ( ho judge , written by
himself , will not bu .stricken out of the
bill as not being identified.
4 A creditor , under the assignment
law of 1877 , is not precluded from suing
the debtor and recovering judgment , upon
his claim ; but thu assigned properly will
not 1)0 liablu for Ihu satisfaction of Ihu
judgment , unless he can have the assign
ment sot asiiie as being fraudulent as lo
0 Whore a firm is insolvent the part
ner cannot by a sale to ono partner of
their interest threu days before an assign
ment for thu benclit ot creditors is inaoe ,
dhcsttho property of its partner.shi | )
character so as lo defraud parlnefblnp
( i An instruction that "you will assess
to the plaintill such damages as from all
thu evidence In this ease yon shall lind hu
has sustained by reason of Ihu illegal
taking and detention of the personal
properly" is vague and liable to mislead
the jury. Wasson vs Palmer , 1U Xeb. ,
< ) .
Union Pacific II. II. vs Ojjllvy. Krror from
Lincoln county. Kevuroud. Opinion by
.Maxwell , J.
1 Where an action was brought in tlio
county court to recover $ HiiO anil on np-
peal to ( he district court the petition was
amended to claim iltSO , : and judgment
rendered for that sum. Held , that Ihu
petition could nol bo amended to claim
more than § 1,000 and accrued inte.ri > t ,
being the limit of Ihe civil jurisdiction of
the county court.
2 InstrnclioiiH must bo applicable to
the testimony and must bu restricted lethe
the actual questions at issue.
4 Instructions upon a material point
which is not based upon evidence tends
lo obscure thu real j&siiu , and is errone
Bliite ex rel Donovan vs Palmer. Mandamus.
Writ allowed. Opinion by Maxwell , J.
1 On petition of a parent to thucounly
superintendent , Mating that it is imprac
ticable , on account of btrenms of water ,
for his ehildren to attend bchool in the
school district in which he is situated , the
superintendent iias authority , and it is
his duty , if ho linds the statement true , to
attach to an adjoining district so much
territory as mny bo necessary to give
such children school privileges.
2 An order of the county superintend
ent ns lo the formation or division or
change of school districts , where he has
jurisdiction , cannot be attacked in a col
Abbott vs Abbott. Krror fiom Lancaster
county , lie-versed as to Julia Abbott , and
allinned as lo lliown and Ityan Bros.
Opinion by Maxwell , J ,
1 The representation of a fact in the
injure , and not a muvo promise , which
ha * hemi acted 'upon , and turns out to be
false , will entitle the injured party to the
MWr ; remedies as fraudulent imarepro-
sentuthms of an existing fact.
2 An attorney in nol entitled lo n lion
upon a cause of action for tort , which In
cast * of Ihu death of Iho parlies would nol
Nesslor N'l'hor. En or from .Snliiio county
JtcviiiM'd. Opinion by Muxuell , J.
A judgment in thu district court is not
a lien upon an equitable interest in real
estate of the debtor ,
Lvnch vs Lynch. Appeal from Douglas
county. Atllniied , opinion by Maxwell , J ,
1 A tenant In common is not entitled
to a right of homestead on the common
property as against a judgment in parti-
lion in favor of a cotcnnnl for thu valno
of his interest.
2 Where tin action in partition is properly -
erly brought on u legal litlo and the do-
'ondantbets up an equitable defense , the
court has authority lo determine the valid-
ty of such defense and adjudicate upon
.lio rights of the parlies.
U Where a certain lot of the value of
$9f 00 was duyisud by will to six persons ,
two of whom conveyed their interi-stN IQ
Ihe defendant , in an action or partition ,
held , 1 That where onn of the shares
was attached to the shares of ( he defend
ant without objection , a judgment making -
ing Iho value of Miclaharo | a linn on Ihu
lefendant's portion was not erroneous.
'd That a balance due from the defend
One of the Best and Larffcst Stootos in the U.S.
to Select fr
No Stairs to Climb , Elegant Passenger Elevator
M. BURKE & SONS ,
LIVE STOCK COMMISSION MERCHANTS ,
OKO. HUIIKR ,
UNION STOCK YARDS , OMAHA , NEB.
nr.FnitENCTS ! Merchants nurt rVirmors' Hniik , Tliivlil Cltjr , Nob. ; Kearney Nut ID ml n.ttik.KoAf
, icy. Noli.Coliniilmiiptiito llftnV- , Columbus , Nob. ; MoUoiiiUd's UmiV , Nortl ) 1'lntto , > fob. UinnliA
Suttoiml Hunk , UmnliRi Nrb. . . . . . .
Will pny customuisilrart wltb bill of ladlu * ftttuchod , for Uro-lUlrds raluo of stock.
nut for rents and profits appropriated by
him might be enforced against his inter
est In ( ho properly.
1 Where the premises are incapable
of a fair division the t-ourl has power to
award a pecuniary compensation lo ono
of ( ho parties for equality of partition.
Human vs. Steelelohiiaon it Co. Krror
Irom Diniplas conn ly. Alliimed. Opinion
by Maxwell , .1.
1 Where several promise to contribute
to a common 'object desired by all , Ihe
promise of each is n good consideration
for tlio promise of others , and can bu en
forced by suit , when the corporation or
person to whom the subscription runs has
incurred obligations on tlio faith of such
subscriptions , and has complied with the
conditions upon which they were made.
2 Where a time Is lixed in which ccr-
lain work is to bo done , it is not in gen
eral so fnr of thu substance of the con-
trad , that if the work is done , hut not
until borne days later , no compensation
can bo recovered. In such case an action
for the price will bo sustained , leaving
thu defendant to show any injury ho may
have sustained by the delay.
it Where an action is brought upon
a contract instead of n quantum mornit ,
and all tlio procf introduced without ob
jection showing the right of the plainlill
lo recover , tlio supreme court will , if necessary -
cessary , permit an amendment of Iho pe
tition to conform to tlio proof or remand
the cause to the district court for such
Stcltnlscho vs. Lamb. Appeal from (5aco
conntv. Itcverscd anil judgment in tills
com t for thu plaintill. Opinion by Max-
veil , J.
1 Adverse possession of real estate , if
continued without interruption for the
length of time prcseiibe.d by Iho statute
for the enforcement of the right of entry ,
is evidence of a fee.
2 Whore Ihe purchaser of a lot , upon
receiving a deed therefor , erects a build
ing thereon and enters into possession and
afterwards sells and conveys the premises ,
n number of transfers being thereafter
made , and the building al times being
vacant , bill no interruption by an adverse
claim lo thu title of the occupant , held ,
that the possession was continuous , and
after the expiration of ten years Ihe occu
pant possessed the fee.
3 Possession may bo attacked , if one
comes in under the other and the posses
sory estate's are connected and continu
4 A party will not bo permitted to
purchase properly nnd hold il for his
own benefit , when he has a duly to per
form in relation thereto , which is incon
sistent with liis character as ti purchaser
on his own account. Columbus Co. vs
Hurford , 1 Keb. , u\
Dr. Sage's Catarrh Itenicdy cures when
every other so-called remedy fails.
A Sermon Stculcr Bounced.
Brooklyn Eagle : The Hov. Jr. Tal-
mage must havu read with surprise that
a single sermon of his has been this ruin
of : i brother minister. The Key. W. 11.
II. Snydcr lias tor twenty-two years been
the pastor of the Salem Reformed Pres
byterian church sit Jlnrrisbnrg , Pa. From
a very small beginning ho has made his
church one of the most nourishing in that
city , Wealthy and prominent eiti/.cns
were attracted by his preaching , n splen
did church cdilice was built foi him , and
both pastor and pepplo were in a most
tlonrisliinjr condition. Some lime ago
Ihe Uov. fllr. Snyder felt too sick to pre
pare a bcrmon of his own , and ho
preached ti very eloquent termon by Iho
Itev. Dr. Talmagc , supposing that no ono
would know thu diU'eroncu between his
own style and that of the eminent Itrook-
lyn preaches. "Uo sure your sin will
Jiml you out , " however , is true of sermon
stealing as well us other kindsof larceny ,
The congregation were delighted with
Ihe sermon , and thought Mr. Snyder -
der even more eloquent when
fueling unwell than when in his most ro
bust condition. It is probable that If he
could have gone on preaching Dr. Tnl-
mago's sermons his salary would have
been doubled and a new head put on Ihu
church Bti-i-ple. Hul a curious and carnal
person in the shape of n young lawyer
happened to bu in thoaudio'nco , and men
tally made eomu habeas corpus rullee-
lions on thu body of the Mirmon. Thu
more he thought , of it the more ho be
came satisfied that he hud hoard it lie -
fore. Oil reaching homo ho happened to
lake up i tt rolnnio of Dr. Talmnge's serA -
inons , and there sum enongliYviis Ihe
identical Hormon which hail produced
Mich an awakening ell'ecl upon the He-
formed Presbyterian dinreli nl Harris-
burg. There was no possibility that thu
appropriation had been accidental , and
that Ihu Huv. Mr. Snyder's ideas about , it
certain text had chanced lo bo idonlieal
with these of the Hov. Dr. Talmago.
Nol a word had been altered ; tliu doth
was whole and wholly Ihe clolh of Ihe
paster of the llrooklyii Tnhornacln.
Instead of thanking Mr. Snyder for
giving them the very best sermon hu
could Jiml , the congregation havu re
solved to cast liiin down hendlinig from
his pulpit of elevation. After I wont.y-two
ycnr.s of cU'eclnal preaching they insist
that In ) step down anil out. llencct'orth
( he I lev , Mr. Hngdor will wander tiboul
jho clerical wilderness us nn exile , wear
ing iijion his dejuutcd brow the terrible
warning to other ministers not to steal
other men's sermons , and when they dose
so to bu careful to .sulee.1 a loss well
known preacher than Dr. Talniagit.
IMMJSt 1'lljKS ! I'lMSS !
A sine euro for Jilmd. lileedlnK , llehln
ftiul Ulcerated I'lles has been discovered by
Dr. Williams , ( an Indian remedy ) , called Dr
Williams' Indian 1'ilu Ointment , A single
box has cured the worst chronic < ' ; ISM of " > or
'M yn\vA \ btandlm , ' . No nnu need sulfur live
minutes after upplylnx tills wonderful booth
IIIK medicine. Lotions and inslnunciiMdo
mine harm than KOOI ! . ' Williams' Indian
Pile Ointment ubsoibstbo tumors , allays the
Intense Helling , ( particularly at niulit after
ui-ttln warm In bed ) , arts as a poultice , irivc.s
Instant relief , and isprepucd ; only for Piles ,
Itddnx of private parts , and for nothing else.
SHIN JHSIOASK.S CUKJOD ,
Dr. J'l.T/.iw's Maxle Ointment cures as by
inai-'Ie , Pjniph'.s , llla'-k Heads or Oitibs ,
Jtlotflics and ICrnptlons on the face , leaving
Uiii si ; in elcnnind beautiful. Also cures Jtcli ,
Salt Klienin , Sore Nipples , > Soru J.lp > , ami
Old Obstinate Hirers.
Sold by dnri't'Uts , or mulled on receipt of
Ill-tailed by Kuhn .t Co. , nnd , Sr > , 'iiucter ' A ,
liecut. At wholesale by U. I1' . Goodman. [
ADDITIONAL C1TV NKWS.
Frank U. Kudufor reached his twenty-
first year on Saturday. Ono of tlio pleas
ant features of tlio Ijirlliday was tlio pro-
sontnlioii to him by his father , Mr. J. W.
Kodofor , of nn elegant gold watch ono
of K. Howard & Go's best hunting cases.
L'rank starlit out in business with tlio Se
curity , Abstract & Loan company , in
which lie holds Mock. his position in tlio
company being thai of assistant secre
tary. lie is a young man who has grown
it ] ) in this oily , and ) jy his nilinly qualities
and thorough business qnnlllicatlons , has
won the esteem and respect of all. lo !
.starts into manhood now with bright
prospects , and if tlio wishes of many
triends are of avail , his future will bo
happy and prosperous.
\VTicn HM > r WM rtok , ir C TO her Centorla ,
Wlion ( lie TTM a Child , ute cried Tor Coatorla ,
When olio I > ( icim6 Miss , Mio citing to Caatorla ,
Vfbta it\ had Children , elie E TO them Cutorhs
It has Jong been known that shippers
are unwilling to carry largo quantities of
y.ine dust in their vessels , owing to tlio
danger of its getting moist and becoming
heated to u dangerous extent. Mr. Grov-
ille Williams , F. U. S-i has recently made
some researches which throw light on
this matter. He linds that welted y.ino
dust , after drying , gives oil'nearly double
the hydrogen that unwcttcd dust gives.
Hydrogen is absorbed from a moistut
mosphoro at moderate temperature by
y.ino dust. It has , in fact , the power of
oeoluding hydrogou after the manner of
spon < ry platinum.
IT m.ir izv AWT ronnt
IN THREE SIZE BOTTLES.
PRICE 25 CENTS , 50 CENTS , AND $1 PER BOTTLE
firiCENT BOTTLES tire put up for the a
/ * < _ * t'oniinoiJutlon ol all who doslro n goo
nnd low jirlcod
Cough , Cold and CroupRcmedy
TllOili DliSJUINU A HKJIKU1' KOI I
LUNG DISEASE ,
Should secure Iho largo $1 bottles. Direction
accompanying uuoh bottlu.
Sold by nil Medicine Dealers.
Or tli < i I.lquur liuliil ,
tureil by AiliiiliiUlorlnif JUr.
It ran IjuffluTi In ft cup of cullV ort a without
tbci Itiiftwlodtoof tUu | > fnoii UiLInu 11 , laiilja
hntmlMi , nnil will ellcot n pcniuuienl nnd
cure , v , liflhf r Ilin fiatlont la 11 niuili > rali < ilrlnkor or
nn ulooljullc wreck , U hus licun flvtn In Ihou-
aunil.1 n [ ravel , unit In uvery Inbtiincuupfrtccl cure
IIM follower ] . Ii ni-riir fiillH. Tlio Kystoin ouca
Impri-BMnti' ' ! wllli tlnifipcclllc , It brroiurx nn ultet
linpJiillillUy fur Ihu lliii | r appHllu to ( ixlst.
VOH SAM ! IIV I'OM,0\VINJ DIUIOUIHTH )
KUIIN it CO , , Cor , inili u m ! UanclaN , nnJ
IMtli iV Cunilna Hln , , Omulm , Neb. '
A. I ) . I'O.STl'.lt iV IIIIO. .
( 'uiincll IllufTH , loira ,
Call or wrltn fnr pninplili-t coiiiulnliik1 hfodreds
of t4lliiioiiHU ? from thttbuHt wumi'ii uini nieii from
Ton Years Maintninud Buporiority ,
STEAM COOKED ,
RDSHE D WHITE OATS
Amorlcun BreakfastCorcals ,
BEWARE OF IMITATIONS !
AsU for A. II. 0. llnniil only , tltctrlstrrcil Twlo
Murlc. ) 1'iirmlo lv nil ( iiocr-rx bt'inl lurlro
tuiur. 'rnKiv.in-.Ma M rn < : o.f
83 Murray St. , NEW YORK
Did you Suppose -
pose Mustang Liniment pnly good
for horses ? It is for inflamma
tion of all flesh.
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