Omaha daily bee. (Omaha [Neb.]) 187?-1922, January 11, 1886, Page 7, Image 7
THE OMAHA DAILY BEE MONDAY , JANUAJBY 11,1886. Ahsoliitcly Free from Opiates , Emetics anil Poison. AT jmcaii T3 AND CZALZRI. THECHARLES A. VOGELER CO. . BALTIMORE , MD. , Rule 1'roprktori. SWIFT'S SPECIFIC 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 GUIDE , 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 * A'SPECWFOB Kpllopsy , Spasms , CoJivul- Dance , Mcohol- Oplum Eat- V ; SVphlltlt , Scrofula , A"f7i / vtt , UglyBlooa Diseases , Dyiptp- sla , Nervousness , Headache , , 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 ruin. 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 , Uiiiahu. 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- , illcstciiUdina"iir/j/lViU' _ 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 beautifies. V- 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 No Appeal. 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 such couniy. ! 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 tween them. 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 cent. 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 such agent. 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 licienl evidence. 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 thu sumo. 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 tion , 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 ders. 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 evant mailer. ! ) 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 every particular. 1 Instructions considered nnd ap proved. 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 femlant. 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 contract. 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 fication. 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 stance. 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 Ihorulo Upnfnlt vs Nelson. Error from Cumins county , Alllrmecl. Opinion by Cobb , Ch. J. 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 , Ibid. Aduins vs Thompson. Error from Cass county. Allhined. Opinion by Cobb , f ' Ui.J. Suit brought on an imdnakfig , or bond entered into for thji-rurposu of ap- it 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 " ' " " " ' ! veJI.J. | 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 the lease. 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 pose. 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 complaining. 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 fendant. 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 liability. < 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 to Ilium. 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 necessary. 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 Brooks ante. 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 creditors. 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 creditors. ( 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 ous. 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 lateral proceeding. 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 survive. 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 nsr TO IS 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 amendment. 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 ous. 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 SO cents. Ill-tailed by Kuhn .t Co. , nnd , Sr > , 'iiucter ' A , liecut. At wholesale by U. I1' . Goodman. [ COUNCIL BLUFFS. ADDITIONAL C1TV NKWS. Ills Majority. 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. ITSTR8CTLY PURE. 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 CONSUMPTION Oil ANT 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 nlljiurtuuf Uiecuiimrv. Ton Years Maintninud Buporiority , STEAM COOKED , RDSHE D WHITE OATS ANI HTIIKIt 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.