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THE OMAHA DAILY BEE : 7SCOJfDAY , NOVEMBER 12 , 1804.
SUPREME COURT DECISIONS
Points of Public Interest Passed Upon by
the Highest Nebraska Tribunal ,
CANNOT L'M.T INSURANCE POLICIES
| i. la C ie of Tofnl I.o * Faro Value Must Ita
i'nld What Conntltiitrn nn
I , 1'nckngn Itoliitloni of IIin
bnuil nnilVlfc. .
At Its slitting last week the Nebraska su
preme court handed down a largo number of
h decisions , all of Interest to attorneys and
I' ' many of Interest to the laity. Ono of
the most Important bears on the question
of liability of Insurance companies to the
Insured. It was written by Mr. Justice Harrison
risen , and again holds that In case of total
loss cf property the company Insuring the
premises Is liable tor the full amount named
on the face of the policy , any clause or
stipulation limiting the liability of the com
pany to a Icta amount being contrary to the
statutory rule and Invalid. Justice Harrison
also rules that any clause In an Insurance
policy which requires that the amount the
company Is to pay In case of total loss ( hall
be fixed by arbitration before suit can ho
commenced Is void , because It ousts courts
of their legitimate Jurisdiction. Another opin
ion , by Mr. Commissioner Ragan , settles a
disputed point relative to the liability of
members of mutual Insurance companies.
Ono old familiar question came up from
Harlan county. It Involved the matter of
what Is an "original package. " Justice Harrison
risen wrote this decision also , holding that
the original package was the packing case
In which the bottles of liquor were shipped
from St. Louis to Republican City , Instead
of the wrappers In which the bottles were
Ecparately packed.
Sir. Commissioner Ryan writes an opinion
more clearly outl nlng the responsibility of
railway companies In regard to Injuries In
flicted on persons , and setting forth the fact
that contributory negligence of a child Is a
delicate matter to determine.
Commissioner Itagan gives attorneys h
point on preparing cases lor appeal. In
order that a clerk of the district court may
be authorized to sign a bill of exceptions It
must bo shown that the Judge of the court
Is dead or prevented by sickness or absence
from his district from signing the bill.
A nice question regarding the relations ol
husband and wife , when the specific performance
formance- a contract Is Involved , was de
cided by Commissioner Ragan against the
husband. He also passes on n disputed point
of the mechanic's lien law , and decides th.it
while the Nebraska divorce law Is liberal
and should be liberally construed , It should
not bo applied so as to permit designing
husbans to legally discard their wives In this
or other states , or to escape the performance
of marriage contracts.
In the court pn Friday the routine proceed
Ings were :
Eggleston against Slusher , motion to dis
miss overruled : Lock against Sloan , motion
to quash bill of exceptions sustained ; Donze
against Donze , appeal dismissed ; My res ,
against Mahoney , motion to reinstate , order
to show cause and prohibition overruled.
Motions to advance were overruled In the
following cases : Chicago , Rock Island & Pa-
clflo Rallrcad company against Archer , Over
all against McShane , Crelghton university
against Rlley , Crelghton university against
Mulvlhlll.
Motions for rehearing were overruled In
the following cases : Sandwich Manufacturing
company against Feary , Stephenson agalnsi
Flagg , Erb against Eggleston , Campbel
L against Baxter , Lichtcnberger against Worm ,
| t Phcnlx Insurance company against Omaha
Loan and Trust company , Garllchs against
Donnelly , Lincoln Street Railway company
against Adams , Carruth against Harris
Clark against State ex rel Carey , Aikeu.
against State , Schroeder against State ox
rel Filbert.
The following causes were argued and sub
mitted : Dotsch against State , Shafer against
Hosteller , on motion ; Eggleston against
Sluther , on motion.
Court adjourned to November 20 , 1891.
Following are the syllabi of decisions ren
dered :
"
SOME INSURANCE DECISIONS.
Homo Fire Insurance company ngalnst
Bean. Error from Tlmyer county. Affirmed
Opinion by Justice Harrison.
A demand by an Insurance company for
arbitration In the manner provided In Its
policy , under which there has been a loss
by lire , waives formal proofs of the loss.
2. The petition In this case helil to con
tain a sufficient allegation of a demand for
arbitration.
3. Where real property Is wholly destroyed
by flre any provision of a policy of Insurance -
ance covering such property , which In any
manner attempts lo limit the amount of the
loss to less than the sum written In the
policy. Is In conflict with the statutory rule ,
Invalid , and will not be enforced.
4. A provision In a policy that no suit of
notion against the Insurer shall be sustained
In any court of luw or chancery until after
an award shall have been obtained by arbi
tration , fixing the amount due after loss , Is
void , the effect of such provision being to
oust the courts of their legitimate Jurisdic
tion. . . ( See Q rrnan American Insu anca com
pany against Ktherton , 25 Neb. , G03. )
G. When a policy of Insurance , as an ex
hibit , IB made a part of a pleading or pe
tition and Is admitted by the answer tht
facts stated therein become a part of the
record In the case , and where some of the
provisions of the policy are again pleader
In the answer as substantive matters of de
fense and such provisions of the answer are
demurred to by the plaintiff the action ol
the court In sustaining the demurrer Is nol
prejudicial error.
Liberty Insurance company against Ehr-
llch. Error from Sewnrd county. Alllrmed
Opinion by Justice Harrison.
Where an erroneous Instruction has been
given , but nn examination and consideration
of the whole record of the proceedings at
the trial of the case In the district court
and more especially the testimony , con
vinces that the Jury were not misled by
such Instruction to the prejudice of the com-
plalnlnir party , the giving of the defective
Instruction will not be sufficient reason for
reversing the Judgment and granting a new
trial.
Hurmood ngalnst Farmers Insurance com
pany. Krror from Hall county. Affirmed
Opinion by Commissioner Itagnn.
In a milt by a mutual Insurance company
organized under the laws of this state
against one of Its members for assessments
levied against him to pay losses oC the
Insurance company , the fact that the nud
Her of the state had refused the Insurance
company a certificate of authority to con
tlnue doing business In the state Is not a
defense , as the refusal of the auditor was
only a prohibition upon the Insurance com
pany from taking new risks.
2. Neither Is It a. defense to such an action
that the directors of the mutual company
had made a contract with another Insurance
company whereby It was agreed that the
mutual company should use Its Influence
with Its members to Induce them to Insure
their property In another Insurance com
Euny , and agreed to surrender to Us mem
ere , who should do so , their Insurance am
membership contracts.
3. Whether the directors of a mutual In
Buranoo company had any authority to
make such a contract not decided.
4. A membership and Insurance contrac
between a mutual Insurance company am
one of Its members provided : That the In
aurance contract mluht be- cancelled at the
request of a member by his paying all as
BessmentH against him to date of such re
quest , together with a cancellation fee of $2
and fcurremlerlng to the Insurance company
the membership Insurance contract.
A member surrendered his Insurance con
tract and paid the cancellation fee. but neg
lected to pay nn assessment due from him
at the date of surrendering1 his Insurance
contmct. Held :
The Insurance and membership contrac
remained In force.
HUSBAND AND WIFE.
Green against Green. Appeal from York
county. Alllrmed. Opinion by Commissioner
Itiican.
In a Milt by a husband against his wlft.
to compel her to specifically perform a
written contract she had made- with hln
Jn end by which she agreed to convey to
him certain real estate , neither the husband
nor the wife can testify one against the
other In the cose. Nlland against Kallsh. S7
Neb. . 47 , reaffirmed.
2. Section 331 of the code of civil procedure
was not repealed by the enactment of chap
ter till , compiled statutes , 151)3. ) entitled "Mar
rled Women. " Skinner against Skinner , J8
Neb. . 7M. reaffirmed.
3. A husband brought null against his wife
to enforce the specific performance of a
contract In writing- made by her In and by
which she agreed to convey to her husband
certain real estate
The wife defended on the grounds that the
contract sued on was procured from her by
fraud and duress , and undue Influence ex
erclsed over her by her hubbnnd , The evl
dence failed , to establish that the contrao
was obtained from the wife by fraud or
durcna. but It did establish that the wife
executed the contract because of a species
of matrimonial coercion and undue Influence
exercised over her by her husband. Heidi
That the wife should be released from the
lerformance of the contract.
4. To enable a husband to specifically en
force ngalnst his wife n contract by which
she has agreed lo convey to him certain
real estate It must appear that such con-
wet had for Its basis some consideration.
6. In such cn o If the claim of the htis-
> nml Is that the consideration for the con
tract wan her lave and affection for him ,
or that because of the fact that he was
ler husband Pho Intended by the contract
u make a gift to him of the land described
ihercln , then the burden Is upon the hu. -
> and to show that the wife made such
contract freely and voluntarily , with full
< nowlodgo of all the facts with reference
thereto , and without any fraud practiced
upon her , and that she was not Induced to
make such contract by the coercion or un
due Influence of her husband ,
WHAT A DIVORCE LAW IS FOR.
Cochran against Cochran. Appeal from
Douglas county. Opinion by Commissioner
Rngan ,
A ccurt of equity will entertain an action
lirought for alimony alone and will grant
Ihe same , although no divorce or other re
lief Is nought , where the wife Is separated
from the husband without her fault.
2. The district courts of this state being
courts of general equity Jurisdiction are
not limited In the exercise of such Jurisdic
tion by statute.
3. A husband deserted his wife nnd minor
children In the state of WlFconsln , where
they resided , took up his abode In tills state
and became a citizen thereof , and procured
a divorce from his wife on the grounds of
desertion , obtaining service on her by pub.
llcatlons. The wife had no knowledge of
the divorce proceedings until after the date
of the decree. Two years after the date of
the divorce the wife brought suit In equity
against the husband for alimony. Held :
(1. ( ) That the action was not brought under
nor governed by section 48 , chapter 2.1 , Com
piled Statutes of 1893 , nor by section C02 of
the code of civil procedure , but was n scpi-
rate nnd Independent action , based on the
legal obligation nf the husband to support
his wife and children.
(2. ( ) That the petition stated a cause of
action for alimony , nlthonph It contained
no allegation that thu wife and children
were In destitute circumstances or In actual
need of suppcrt.
4. Our divorce laws are liberal nnd should
be liberally constiued. Hut they me not
iTeslgned for , and should not bo used to , en
able designing husbands , without cause , to
legally discard their wives , whether domi
ciled In this or ether states , or to escape
the performance of their marriage con
tracts.
5. There Is no fixed rule for determining
what portion of n husband's estate should
be decreed to his wife for alimony. The
amount should be just nnd equitable , due
regard being had for the rights of each
party , the ability of the husband , the estate
of the wife and the character and situation
cf the parties.
C In estimating the- value of the husband's
property for determining the amount of all-
mony that should be awarded the wife the
court should take the value of the husband's
estate at the date of the rendition of the
decree for alimony.
7. The value of property acquired by a
husband after obtaining a decree of di
vorce from his wife by exchanging for It
other property , which he owned at the time
of obtaining such divorce , should be taken
Into consideration by the court In determin
ing the amount of alimony to which the
wife Is entitled.
S. Smith against Smith. 19 Nebraska 7Wi ;
Earlc against Earle , 27 Nebraska 277 , fol
lowed and reaffirmed : Smlthson against
Smlthson , 37 Nebraska G35.
Edmonds against State. Error from Otoe
county. Reversed. Opinion by Commis
sioner Ryan.
In a pro ccutlon for larceny proof of the
value of the property stolen must be made
by nt least one witness affirmatively shown
to possess knowledge of the value concernIng -
Ing which he H called upon to give evi
dence. Following Urocks against State , 2S
Nebraska 38D.
WHAT AN ORIGINAL PACKAGE IS.
Haley against State. Error from Harlan
county. Affirmed. Opinion by Justice Har
rison. '
Where bottles of Intoxicating liquor were
each enclosed In a paper wiapper or box ,
which was sealed with sealing wax , and a
number of the paper boxes , each containing
a ilnslc of such liquor , were packed In n
wocden box by n party at St. Louis , Mo. ,
nnd shipped to his agent at Republican City ,
Neb. , and the npcnt opened the wooden
box and took the paper boxes In which the
flasks of liquor were contained therefrom
nnd sold them separately , held : That the
wooden box was the "original package , "
and not the scaled paper box or wrapper
and the b. ttle therein enclosed , and such a
sale was a violation of the provisions of the
law of this state , regulating the license and
sale of malt , spirituous and vinous liquors.
Dletz ncalnst City National Hank of Hast
ings. Error from Adams county. Re
versed. Opinion by Commissioner Ryan.
Where It was known to the president of n
bank that the Indorsement of the name of
the payee on a note by one assuming to
make such endorsement as the payee's
agent was outside the scope of his powers
sujh Indorsement Is not binding on the al
leged principal.
2. To the ratification of nn unauthorized
Indorsement of his name , knowledge of the
act to be ratified must be shown to have
been had by the party sought to be charged
by the alleged ratification.
3. It Is error to permit , after n verdict , an
amendment of the petition EO as to sub
stantially change the claim made up to that
time , especially when such change Is not to
conform such petition to the facts proved.
Darst ngalnst Perfect. Error from Doug
las county. Alllrmed. Opinion by Commis
sioner Tlynn.
A petition , which In ordinary nnd concise
language described the contract upon whlc-h
suit was brought and In like language al
leged compliance with Its terms , Is sufficient
to sustain a Judgment recovered upon the
trial of Issues framed without a question as
to the sufficiency of the description of such
contract or of Its norformapoo.
Gllcrest against Nantk r. Error frsm Buf
falo county. Affirmed. Opinion by Commis
sioner Ryan.
A petition In which was alleged false rep
resentations of the kind nnd disposition of a
horse which thereby plaintiff was Induced
to purchase at a certain price from the de
fendant was so defective because of an
entire failure to aver that damages of any
kind or amount had been sustained that , on
error proceedings to this court , the judg
ment on a verdict In favor of the defendant
Is affirmed.
Blckcl against Butcher. Appeal from
Douglas county , AlllrmeJ. Opinion b/ Com
missioner Ryan.
In this case there was presented on
appeal no question save that of
sufficiency of the evidence to sustain the
findings of the district court. The proofs
upon examination having been found fully
to Justify the conclusions questioned the
Judgment of the district court Is affirmed.
Stone against Neeley. Error from Buffalo
county. Reversed and remanded. Opinion
by Commissioner Ryan.
An action may be maintained against II.
L. 8. and G. W. S. , partners doing business
ns S. & S. . or against cither of them , hut
to render G. W. S. liable for the acts ol
II. L. 8. , there should be averment as wel
ns evidence to establish between them the
relation of partners.
An action for failure to pay ever money
received by defendant ns the aucnt of plaintiff -
tiff cannot be maintained upan m > re pro f ol
negligence on the part of the defendant In
maklmj collection of the money with the
detention of which he Is sought to be
charged In the petition ,
POINTS IN CONTRACT LAW.
Shackleford against Hargreavcs et al. Er
ror from Adams county. Affirmed. Opinion
by Commissioner Ryan.
Where parties litigant had entered Into a
contract under which the possesslm of n
stock of merchandise was transferred from
plaintiff to defendants on n sufficient
Independent consideration , plaintiff coutf
not find n superior right of possession , such
as would entitle him to maintain , replevin
for said stock , upon nn alleged breach ol
said contract by defendants as to retaining
plaintiff In their employ nt a certain rate
of compensation thereby n Mixed.
Heyn against Ohrnan. Error.frcm Douglas -
las county. Affirmed. Opinion by Commis
sioner Ryan.
In nn action for recovery of damages al
leged to have resulted from breaches of de
fendant's covenants of warranty of title
and for quiet enjoyment , the plaintiff , ts
establish prlma facie the breaches alleged.
Is required merely to prove that he 1ms
either been evicted or kept out of possession
by one In actual possession claiming title
paramount to his own. The presumption ol
title which then arises In favor of the
party In possession must be overcome bv
proving title out of him ; both the aforesaid
breaches may be deemed established bi
sufficient proof.
Smith aealnst First National bank of
Crete. Error from Saline county. Reversed.
Opinion by Commissioner Ryan.
The limitation of two years within which
an action under the provisions of section
5.19S , Revised Statutes United States , may
be commenced for the recovery from a na
tional bank of twice the amount of usury
paid to It dates from the actual payment
of such Interest , and rot from the bank'e
reservation of It from the ortclnal loan by
way of discount. Following First National
bank , Dorchester , against Smith , 36 Ne
braska IK ) .
Lexington Mill and Elevator company
aealnst Neuens. Error from Dawson county.
Affirmed. Opinion by Commissioner Irvine
If a person hus advanced money In pan
performance of n contract and then refuses
to proceed , the other party being ready
and willing to perform on his part all the
stipulations of the agreement , the former
will not be permitted to recover back whal
he nan advanced Walter against Heed , 31
Nebraska Ml. foil wed.
Cunningham against Burke et al. Appeal
'rom Lancaster county. Affirmed. Opinion
jy Commissioner Irvine. . . .
When a case Is In Its nature appealable
nnd a transcript Is filed within the time
allowed for appeal , but thereafter and with.
n the time permitted for Instituted proceed-
ngs In error the appellant flies and at-
aches to Ihe transcript n petition In error ,
ic will be held to have abandoned his np-
ieal and elected to proceed In error.
2. In an action for partition the court
found on the trial of the Issues that parti-
tlon could not be made , and In the judg
ment confirming the Interests cf the par-
tics ordered a sale of the land. The Judg
ment was held to be Irregular , but not
without jurisdiction , nnd , ns It was not
complained of because of this Irregularity ,
either by a motion for a new trial or by
assignment oC error , held : That It could not
be reversed.
Manning ngnlnst City of Orleans. Error
from llarlnn county. Reversed nnd re
manded. Opinion by Commissioner Irvine.
Section 410 of the code of civil procedure
provides n remedy substantially like the
motion for Judgment non obstnnte vcredlcto
of the common law. Such n judgment can
only be rendered when the pleadings of the
party In whose favor the verdict was ren.
dcrcd confesses facts entitling the other
party to judgment.
2. In a case In which a party Is entitled
to a Jury trial , and where the pleadings do
not confess the right to n judgment , the
court cannot disregard the verdict and en
ter such judgment as the evidence warrants.
If the verdict Is not sustained by the evi
dence the remedy Is by motion for a new
trial on that ground.
3. Where the verdict Is general and Is
unassalled by a motion for a new trial ,
Judgment must , except In the cases stated
In the first paragraph of this syllabus , be
entered In conformity with the verdict.
Connor against Schrlekcr et al. Error from
rtoone county. Affirmed. Opinion by Com-
mlfloncr Irvine.
A , the owner of land , demised the same
to 1) , reserving as rent one-fourth of the
crops : B sublet a portion of the premises
to C for money rent : C paid n portion of
the rent to H and theraftcr paid the re
mainder to H's administratrix ; the admin
istratrix paid the latter sum to A , who ac
cepted the same. Held : That the payment
to and ncccptnnce by A of the money oper
ated as a rcllnqulshtnent of any Interest he
might Imve had In the crop raised on the
land sublet to C , and evidenced a new con
tract between A and B's administratrix ,
whereby as to this land a money payment
was to ha received In lieu of rent In kind.
VALUE OF MECHANIC'S LIEN.
Moore et al against Vaughn et al. Ap
peal from Hnrlun county. Reversed and
remanded. Opinion by Commissioner Ragnn.
The. mechanic's Hen law of this state re
quires tnnt a contract for material , labor ,
etc. , for an Improvement on real estate
shall be made with the owner thereof or hla
agent ; and a tenant of real estate because
of his tenancy Is not the agent of his land
lord In such a sense as to render the latter
or his real estate liable for materials fur
nished the tenant and used by him In erectIng -
Improvements on such real estate.
Waterman against Stout , 33 Nebraska 393 ,
reaffirmed.
2. A landlord leased his premises to a
tenant for one year , with the privilege Qf
re-leaping for another year nt the end of
the term. The tenant , during his lease ,
moved a dwelling house belonging to his
landlord and standing upon other land of
his upon the leased premises , and perma
nently affixed It to the land. He then made
contracts with certain material men In nnd
by which they furnished him material
which he used In repairing and building ad
ditions to the dwelling house moved upon
the leased premises.
In a suit brought by the material men
against him , In which they claimed liens
upon the premises for the material fur
nished to and used by him In the erection of
such improvements , the court decreed that
the Improvements on said real estate should
be sow to pay and discharge the claims of
the material men against the. tenant. Held :
(1. ( ) That when the dwelling house was
moved upon , the leaped premises nnd fixed
to the land It became n part thereof : and
that the court was without authority to
order said dwelling house and additions
severed and sold to pay the claims of the
material men.
(2. ( ) That the material men by furnishing
material to the tenant for the erection of
Improvements on the leased premises nc-
qulied Hens ngalnst the tenant's Interest
only In paid premises.
Patrick Land company against Leaven-
worth. Error from Douglas county. Af-
Hoagland ngalnst Lowe , OS N. W. Rep. ,
followed nnd reaffirmed.
2. Where the vendor of land took by agree
ment a second mortgage to secure the un
paid portion of the purchase money nnd the
cash payment was made from the loan se
cured by the mortgage which was made ,
superior to the purchase money mortgage ,
with the knowledge of nil parties , but with
out previous agreement , It being the under
standing that the loan was being made foi
the purpose of erecting Improvements on
the premises nnd the owner contracting to
erect such Improvements , but there being no
contmct that the money obtained by the
loan should be so used , and the loan com
pany not undertaking to see to the appli
cation of the money , held : That by virtue
of these facts the priority of the mortgages
as against mechanic's liens for the work
begun and material furnished after the re
cording of the mortgages was not disturbed.
3. The loan company was not by estoppel
or otherwise prevented from asserting the
superiority of Its mortgage us to the whols
amount thereof became of the foregoing
fact. , or of the fuitlur fa't that a mechanic ,
Induced by lepresentatlons of the owner , rti-
lied on payment out of the loon , n part of
which was In fact appropriated to another
purpose. It not nppsarlng that the loan com
pany had Itself by the contract or by con
duct led the mechanic to rely upon Its see
ing to the application of the money.
4. An action cannot be maintained by the
payee against the drawee of an order upon
a fund payable to the drawer where the
drawee hns refused to accept the order.
5 One of several defendants demurred to a
petition ; the demuirer was sutained. Ills
codefendonts after answer day filed cross-
petitions seeking affirmative relief against
him. No summons or notice was served
upon him of the cross-petitions and he did
not appear thereto. Held : That the court
pioperly refused judgment against him on
the cross-petitions.
Arnold against Badger Lumber company ,
36 Neb. , 841 , followed.
JUDGES MUST SIGN EXCEPTIONS.
Scott ngalnst Spencer et al. Appeal from
Buffalo county. Affirmed. Opinion by Com
missioner Ragan.
To confer authority upon the clerk of a
district court to sign and allow a bill of
exceptions It must appear that the judge Is
dead , or that he Is prevented by sickness or
absence from his district from signing nnd
allowing the bill , or the parties 'to the liti
gation or their counsel must agree upon the
bill of exceptions nnd attach thereto their
written stipulation to that effect. Section
311 , Code Civil Procedure.
2. The mere stipulation of counsel In a
case that the clerk of the court may sign
and allow a bill of exceptions Is not suffi
cient to confer authority upon him to do so.
3. Where it Is sought to present to this
court alleged errors occurring at the trial
In u ( IHtrlct court a bill of exceptions set
tled and signed an required by law Is In
dispensably necessary. Edwards against
Kearney , II Neb , , 83 : Reynolds against
Dletz , GS N. W. Rep. , p. S9 , reaffirmed.
Guthrle et al against Brown. Error from
Nuckolls county. Alllrmed.
In order to authorize the clerk
of the district court to set
tle a bill of exceptions It must appear thai
the conditions exist whereunder section 311
of the' code of civil procedure permits the
clerk to cxcrclso auch authority. Therefore ,
although the parties may have agreed In
advance of the preparation of the bill that
the clerk might settle the same , he Is not
authorized to do so when the proposed bill.
Instead of being agreed upon , Is returned
with proposed amendments , and those are
not complied with.
2. When a defendant answers denying the
allegations upon which plaintiff's claim Is
founded , and at the same time pleading a
counter claim , a general finding for the
plaintiff Is sufficient to dispose of the issues
both on the petition and on the counter
claim ,
3. An action was brought to foreclose n
mechanic's lien. There was a general find
ing for the plaintiff for a sum less than $200 ;
a personal judgment was entered , but no
decree establishing and foreclosing the lien.
Held : That the general finding established
the right to a Hen and determined that the
action was not one within the jurisdiction
of a Justice of the peace , nnd entitled plain
tiff to recover his costs. The fact that the
court failed to enter judgment In accord
ance with the finding did not render a Judg
ment for costs erroneous.
PLEADINGS IN R.EPLEVIN.
HanOall against Persons. Error from
Hall county. Reversed and remanded.
In replevin , as In all other actions , the
evidence should correspond with the al
legations In the pleadings. And where a
plaintiff In replevin bases , hla right to the
possession of the property claimed by rea
son of a special ownership therein or Hen
thereupon he should set , out In hla petition
the facts with reference to such special
ownership or Hen. Haggard against \Vul-
len , G Neb. , 271 , reaffirmed.
2. A litigant cannot plead one thing and
prove another ,
He cannot plead that he Is the absolute
owner of property and satisfy such plea by
proving that he simply has a Men upon It.
Nor can he plead that he Is entitled to the
possession of property by virtue of a Hen
upjn It and satisfy such plea by proving
that he la the absolute owner of the prop
erty.
5. The legal title to property pledged by
a chattel mortgage remains In the mort
gagor until divested by foreclosure proceed
ings and sale In pursuance of law ; and
until the title of the mortgagor Is thus di
vested the mortgagee has merely a Hen
upon the property Musser against Klnc.
59 N , W Rep. , 711 , reaffirmed
4. A plaintiff In replevin pleaded that lie
was Ihe absolute owner and entitled U > tJif
mmcdlatc posscslsottirfjthe property replev-
ned.
The defense was t a itnencral dental. To
make his case plalntla , Introduced In evi
dence a chattel mortgage executed to htm
on the property. Uelft : Irrelevant under
the Issues. ,
Jeffrcs against Casliman. Error front
Qreeley county. Affirmed. Opinion by Com-
mlsFloner Rngan. n '
Where the errors"'nsnlgned ' nnd argued
here nro that the trial court erred In giving
nnd refusing to givecertain Instructions ,
nnd It appears from the evidence that the
verdict returned by the Jury and the Judg
ment pronounced thereon by the district
court are the only , ones that could have
been rightfully returiiea nnd pronounced ,
this court will not .examine the errors as
signed. Everett ngnJnEl lloblcmnn , 15 Neb. ,
37lS , reaffirmed.
Wright et nl against Grimes. Appeal from
Jjhnson ( .aunty. Alllimed. Opinion by Com
missioner Rngnn.
The evidence In this case examined and
found to support the finding of the district
court , nnd the decree affirmed.
Mctcalf against Bockoven. Error from
Douplna court ) * . Affirmed. Opinion by Com
missioner Ragan.
The evidence In this case examined and
held to support the finding of the district
court , "That the partnership alleged to have
been entered Into between Horace C. Met-
calf and Anna S. Bockoven , as set out In
the amended petition and denied by her
answer , never existed. "
CHILD'S CONTRIBUTORY NEGLIGENCE
The Omaha & Republican Valley Railway
company against Cool : . Error from HowArd -
Ard county. Affirmed. Opinion by Com
missioner Ryan. '
In nn action ngalnst a railway company
for personal Injuries by It Inflicted , the trial
court very properly refused to give nn In
struction requested In which the right of
plaintiff to recover was made dependent
upon the absence on her part of a very
slight want of ordinary care , when there
liad already been given instructions In which
had been clearly explained the nature nnd
effect of negligence on the part of each
party to the suit.
2. Where the plaintiff was Injured by n
locomotive of the defendant nt a place on
defendant's track where such plaintiff had
no right to be , nnd where In fuel she was
a trespasser , the Jury was properly Instruct
ed that the engineer was under obligations
ns soon as he discovered that plaintiff was
on the track to use all possible means and
efforts consistent with the safety of his
train nnd any passenger or persons wno
might be thereon to avoid Injuring the
plaintiff , and fulling to do so would render
the company liable.
3. In n case wherein the evidence admit
ted of the application of the principle stated ,
the trial court properly Instructed the Jury
that the rule of law as to the contributory
negligence of n child Is that It can only
be expected and required to exercise that
degree of care and discretion which a child
of such age would ordinarily nnd naturally
use and exercise under the circumstances
shown in cvlCcrce nnJ In the same s tuition ,
bearing In mind also the amount of Intel
ligence or want of the same of the child ,
If any such had been shown by the evi
dence.
Stedman ngalnst Rochester Loan nnd
Bankingcompany. . Error from Sherman
county. Affirmed. Opinion by Commissioner
Ragan.
In n suit by nn endorsee of a promissory
note ngalnst the maker thereof , the latter
alleged as a defense that the note was
given for certain stock In a milling corpoia-
tton falsely represented by the original
payee of the note to be solvent and earning
annual dividends of 30 per cent.
The undisputed evidence showed that the
Indorsee purchased the note before Its ma
turity In the usual course of business for
a valuable consideration , and without any
knowledge or notice of the defense pleaded
by the maker , held :
That the court properly Instructed the
Jury to return a verdict for the Indorsee.
2. In said suit the maker of the note of
fered to prove that 'tlie note was not In
tended to be delivered to the original payee
thereof to become his property , except upon
the condition that the stock of the milling
corporation for which the note was given
should yield a dividend of 3 } per cent per
annum , and that the original payee of said
note agreed nt the timcof Its execution and
delivery to hold It In trust for him , the
maker.
The answer of life , maker of the note did
not allege an agreement on the part of the
original payee of the note that he would
hold such note In trust for the maker. Held :
That the evidence offered was. Irrelevant
under the Issues , aid ) prpperly excluded ,
WHY HILL SHOULD HANG.
Hill against State , , Error from Cass
county , Alllrmed. Opinion by Justice Post.
In one count of the Information for mur
der the accused WAS charged with having
putposely nnd of his deliberate nnd pre-
meciltat.ed mallccv killed the deceased. And
In two other counts the klllliiffMs alleged to
have been done In 'an attempt to rob the
deceased. Held to charge but one offense ,
and a motion to require the state to elect
between the several counts of the Informa
tion was properly overruled. .Furst ngalnst
the State , 31 Neb. , 403.
2. The law does not distinguish between
principles of the first and second degree ,
hence all persons who , being present , aid ,
assist or1 abet In the commission of a felony
may be prosecuted.
3. Objection by an accused on the ground
that there has been no preliminary exam
ination for the crime charged should be by
the
.
4. Complaint upon which the accused was
committed , examined and held to state the
crime charged In the Information filed In
the district court.
0. In reviewing the rulings of the trial.
court receiving' and rejecting evidence , this
court will confine Its examination to the
objections made at the trial. Schlencker
against the State , 9 Neb. , 211.
6. The provision of the criminal code
making conscientious scruples of a Juror
against capital punishment ground for chal
lenge for cause In prosecutions for murder
was not repealed by the amendment of
1S93 , conferring- upon the Jury discretion
to fix the punishment upon conviction for
murder In the first degree at Imprisonment
for life Instead of the death penalty.
7. Affidavits after a verdict contradicting
the answers of a Juror on his volre dire
examination on account of prejudice against
the unsuccessful party should be received
with caution , and when , contradicted , nn
order denying a new trial will not be re
versed on appeal.
8. Proof of voluntary Intoxication Is ad
missible In prosecutions f r murder In the
first degree , not to excuse the crime
charRCd , but as a circumstance tending to
show that the killing was not the deliberate
and premeditated act of the prisoner.
Where , however , continued drunkenness has
produced such a condition of Insanity or
mbeclllty ns would relieve from responsi
bility for criminal nets. If produced by any
other cause , such condition may bo shown
as a defense , nnd the fact that It was
caused by voluntary drunkenness Is Imma
terial.
9. The limits within which cross-examina
tion will be allowed respecting the past life
of a. witness other thi-.n the defendant In
a criminal proseputlpn , for the purpose of
affecting his credibility , rests In the discre
tion of the trial court. Accordingly held
not error to permit a witness for the defend
ant to be asked on cross-examination If
he had been arrested for vagrancy , drunken
ness nnd other misdemeanors.
10A.v.Ju < l'imfnt ' wl" "ot bo reversed be
the trial
cause court In n prosecution for
murder has In charBliifir the Jury , assumed
material facts as proved , where ft Is clearlv
Sl.w2 ! , liy.wthe record tn"t th v wete ad
mitted ly the pilfon-r nt the tiia' or treated
by him as proved.
11. The trial court should avoid the BV-
Inff of undue prominence to a particular
proposition by frequent repetitions thereof
In charging the jury. But a violation , of
that rule In a. criminal prosecution Is not
Itself reversible error , where It Is apparenl
that there was mycontroversy respecting
the proposition stated , nnd where It is
clear that It did not have the effect to ex
clude from the consideration of the Jury
other propositions stated by the court
12. Where fn n-pHrnlnal case the trial
court has correctlv hnrged upon nil of the
'
questions presented tat' the trial the fact that
u single proposition jnliht have been stated
with greater precision In a single paragraph
Is no ground for reversal , particularly where
the Instructions givro-irre a substantial com
pliance with the reauejjts presented by the
prisoner. -
13. It Is not eirtmHal to the crime of
robbery that the -preperty be taken from
the body of the person robbed. It is suffi
cient If taken from7 Ms-personal presence
.HI.C or
personal protection i I 1
14. Abuse of privilege by counsel In ad
dressing the Jury. toM , , ? available on appeal
,
must be excepted Id fA the time. McLalt
against the State.llsicJcb. . 151.
ii'f-.li"1 tlmt T.fyJ" n < application to
? ! ?
the trial crurt. It'-M-Jne duty of the pre
siding Judge. whethef So requested or not ,
to protect the court , , bj > . nn enforcement of
the rules essential lo.'an orderly and Im
partial administration of the law And
should an attorney persist In attempting to
nfluence the Jury by reference to facts not
In evidence or appeals to prejudice unwar
ranted by the proofs- , the ccurt should not
hesitate on motion to set aside a verdict In
his favor , although no objection may have
been Interposed when the offense was com-
milled ,
10. Evidence examined and held to sustain
the verdict of murder In the first degree
and to warrant the extreme penalty Im
posed by the Jury.
Chicago. Burllncton & Quli cy Railway
compnry ntnlnst Ccchrnn. Error from Lan
caster county. Reversed nnd remanded.
Opinion by Justice Pom.
One who refuses to perform the conditions
Imposed upon him by the terms of a con
tract cannot recover for a breach thereof
by the other party.
Mattlscn against Chicago , Rock Island A
Pacific Railway company. Appeal from
Cass county , Opinion by Justice Harrison ,
Parol evidence Is Incompetent to provo a
c ntemporaneous oral agreement by which
It Is HouKht to change or alter the terms of
a written coc tract , and the result of which
would be to change the effect cf the writ-
tea contract In a material portion of It and
to Insert or read Into It n condition or reser
vation not contained In It , or Implied by Its
terms.
POINT IN SCHOOL LAW.
State ex rel School District No. 1 of Sioux
County ngalnst School District No. 19 ct al.
Error from Sioux county. Affirmed , Opin
ion by Chief Justice Norvnl.
After a school district has exercised the
franchises and privileges thereof for the
period of one year Its legal organization
will be conclusively presumed , whatever
may have lA en Ihe detects and Irregularities
In the formation or organization of such dls-
tilot.
Hedrlck against Strauss ct nt. Error
from Hitchcock county. Affirmed. Opinion
by Chief Justice Norvnl.
Instructions will not be reviewed where
they arc not pointed out In both the mo
tions for a new trial nnd the petition In
error.
2. A purchase of property of an Insolvent
debtor , with Intent to nld In hindering , de
laying or defrauding his creditors. Is void
as to such creditors , though a full considera
tion Is paid for the property.
3. In order to constitute one nn Innocent
purchaser of property sold for the purpose
of defrauding the creditors of the vendor
the whole consideration must be actually
paid before the purchaser had notice of
the fraudulent Intent. If after part of the
consideration has been paid the purchaser
receive notice of the fraud , he will only bo
entitled to protection to the extent of the
consideration paid , or parted with , before
notice. As to the purchase price not paid ,
such vendee will not be regarded ns nn in
nocent purchaser of the property.
4. Held , the defendant's third Instruction
was applicable to the evidence In the case
and that thu trial court did not err In giv
ing the same to the Jury.
6. Certain paragraphs of the charge of
the court not considered , since the alleged
errors In their glvlns are not sufficiently
assigned In either the motion for a new
trial or the petition In error.
G. In order to n review of Instructions by
the appellate court nn exception must have
been taken ln > each specific Instruction
claimed to be erroneous. A general excep
tion to Instructions given or icfuscd Is
unavailing.
7. It Is within the sound discretion of
the trial Judge to submit to , or withhold
from , the Jury questions for special findings ,
and his rulings In that regard will not be
disturbed unless a clear case of abuse of
discretion appears. Hule applied.
8. This court will not consider objection
to the admission of testimony when the
particular ruling Is not pointed out In the
petition In error.
9. An assignment of error not Included
In the points relied on for a reversal will
be deemed waived.
WYOMING ASSIGNMENT WAS VOID.
Connor ngalnst Omaha National bank.
Error from Douglas county. Affirmed. Opin
ion by Commissioner Ragan.
One France , a citizen of Wyoming , made
an assignment there for the benefit of his
creditors. At the date of the assignment
he hadon deposit to his credit and subject
to his check t In a bank of this state.
The day after the assignment the bank ap
plied the money It held on deposit to the
discharge of the miniatured notes of France
held by It.
The assignment law of Wyoming provided
that an assignment for the benefit of cred
itors should be In writing , subscribed and
acknowledged by the assignor , nnd before
taking- effect filed and recorded In the office
of a probate judge ; that within twenty days
after making nn assignment the assignor
should make an Inventory , verified by his
nffldnvll , of his assets , liabilities , debtors
and creditors , and ( Ho the same with the
probate judge : that "An assignment for the
benefit of creditors Is void against creditors
of the assignor unless It Is recorded , and
unless the Inventory required Is ( lied within
twenty days after the date of the assign
ment. "
The assignees of France sued the bank In
a court ot this state for the money he had
on deposit theieln at the date he made an
assignment , nnd on the trial failed to prove
that France , within twenty days after making
ing- such assignment , made nnd filed the In
ventory required by the Wyoming statute.
Held :
That the assignees were not entitled to
recover , as the failure of the assignor to
make nnd Hie within twenty days the Inven
tory Required by law rendered the assign
ment absolutely void.
fllalne against Poyer. Error from Web
ster county. Opinion by Commissioner
Hagnn.
Where a litigant flics nn application for a
continuance on the ground of the absence of
a material witness , and the adverse party
stipulates In open court that. If the appli
cation for a continuance be overruled , that
the affidavit made for a continuance may
be read on the trial ns the evidence of the
absent witness , such stipulation Is valid and
binding , nnd every fact which It Is alleged
In the affidavit the absent witness would
testify to , which Is competent , material and
relevant testimony under the Issues , the ap
plicant for a continuance Is entitled to read
from the affidavit In evidence to the Jury ,
and It Is reversible error for the court to
exclude such evidence.
And In such case the facts which the affi
davit alleged the absent witness would tes
tify to are not Incompetent , Irrelevant , Im
material or Improper evidence because such
facts are stated In the form of a conclu
sion.
SHARP PRACTICE IN A LAND TRADE.
Chamberlain against Grimes , Appeal from
Jolnson county. Affirmed. Cp nlon by Com.
mlssloner Ragan.
Ono Wright brought suit against one
Grimes to cancel and be allowed to redeem
from the Hen of a void tax deed held by
Grimes against the land of Wright , nnd to
have the title to said lands quieted In him.
Wright employed one Chamberlain , nn at
torney at law. to Institute nnd prosecute
said action. And as compensation for his
services In the premises duly executed to
him a conveyance for an undivided one-half
of the real estate In controversy.
While Iho action was pending Grimes
with actual knowledge that Wright had al
ready conveyed one-half of the real estate
to Chamberlain , nnd that such conveyance
was unrecorded for n consideration paid
to Wright , obtained from him a dismissal
of said suit and a quit claim deed to him ,
Grimes , for all the real estate Involved
therein. Held :
(1. ( ) That the decree of the district court
cancelling the lien of the void tax deed , end
cancelling the deed obtained from Wright by
Grimes as ngalnst nn undivided one-half of
said real estate , and permitting Chamberlain
to redeem one-half of said real estate from
the Hen of said tax deed , and quieting the
title to one-half of said premises In Cham
berlain , was correct.
(2. ( ) That If the contract between Wright
and Chamberlain was chnmpertous It was
not a defense of which Grimes could avail
himself In this action.
2. If the defendant In a trial court omits to
make a meritorious defense , which he might
have made , he > will be bound by the record
made there and cannot Interpcse such de
fense for the first time In this court. Court-
nay against Price , 12 Nebraska 188 , re
affirmed.
Reed against Wood et nl , Error from
Pawnee county. Affirmed. Opinion by
Chief Justice Norval.
1. An assignment In a petition In error
will be disregarded by this court where the
same Is not relied upon In the briefs filed.
2. An assignment of error , which Is di
rected generally by numbers merely , against
three out of four Instructions slvon at the
request of the successful party , la sufficient
where none of said instructions nro num
bered , since It Is too Indefinite nnd uncer
tain ns to the particular Instructions In
tended.
COLLECTING UNMATURED DEBTS.
Cox & Cornell against Peorla Manufactur
ing company. Error from Saunders county.
Alllrmed. Opinion by Chief Justice Norval.
The filing of an answer after a special de
murrer to the petition Is overruled Is
waiver of an exception to the decision of
the court on the demurrer.
2. Answering over after the overruling of
ft , general demurrer to the petition Is no
waiver of the defect that the petition falls
to state n cause of action.
3. An action cannot be maintained on a
debt prior to the maturity thereof only In
the exceptional cases bpaclflcd In section 273
of the code.
4. Such an action cannot be prosecuted to
judgment unless a. writ of attachment hns
been allowed and property seized thereunder.
6. Where a creditor brings an action on a
claim before It Is due nnd sues out an at
tachment It Is not necessary that he should
set up In the petition the fraudulent acts
of the defendant which arc rdled upon ns
the basis for the granting of the attach
ment , but the same should ba set forth In
the attachment affidavit.
C. Where a district judge allows an order
of attachment on a debt not due the pre
sumption Is , In the absence of n contrary
showing , that the same was made while the
court was In session , and especially BO
where the judge at the time of the granting
of the writ was presiding nt a regular term
of the district court In which such action
was brought.
7. A district Judre ; has the power to hold
court In a district other than that one for
which he was elected , and It will be pre
sumed In case he does EO that It was at the
Instance of the judge of the propr district.
8.S here f'e me-nlers cf an Ins-il c it pa t-
nershlp divide between themselves all the
firm assets , without regard to the Interest or
share ot the respective partners therein ,
with the Intention and for the sole purpose
of enabling earh to claim the portion so
transferred to him as exempt against the
creditors of the partnership. It Is sufficient
ground for an attachment , since such trans
fer tends to hinder and delay the firm cred
itors In the collection of their claims.
Norwegian Plow company against Mower.
Error from Lancaster county. Affirmed.
Opinion by Chief Justice Norvul ,
Where a judgment conforms to the plead-
Ultra and evidence In the case , and no briefs
are filed by the party In this court , the
Judgment will not be disturbed. Damon
against City of Omaha , 33 Neb. , va ,
S' ' uth Omaha et nl ngalnst Taxpayers'
L' ' ague ot al Error from Douglas county.
Opinion by Chief Justice Harrison.
Where It Is sought by legislative enact
ment to amend and repeal a former act or
"It's Cruel
for them not to give you Pearline for your
washing. Your folks can't know much about it.
My ! They could save their money , and all your
hard work besides. I'm thankful
the lady I live with is just the
other way. She knows what
\ . Pearline will do , and she
i \ wants it. She'd never let me
lose my time trying to get
things clean with soap and
she wouldn't stand it to have
her clothes all worn out with
rubbing , cither. "
That's the truth. The
lack of Pearline comes just as
hard on the mistress * clothes as it
* docs on the laundress' back.
Peddlers and some unscrupulous Rroccrs will tell you " this is as POCK ! as"
or "the same as Pcarlinc. " IT'S FALSE Pcarlino is never peddled ,
. Jf T3 _ 1 and if your grocer sends you something in place of 1'carline. bo
L JDcLCK honest tenJit tact. 437 JAMBS PYLE , New York.
THE ESTATE
BESTSTOTE on EARTH
READ THE ( ITICIAL TIST
Official Report on ' 'Estate ' O.iks. "
E. &L. .
Ooiitlumon This N to certify
that I have nmdo a sorlos of to.Hs
with "l < 'SorliM" Kstnto Oak lloat-
niK stoves , todetermlno , 1'lrxt , how
long thu stovu uould hold lire , ;
Second , how thu govoral parts of
the stovoiictundor nhlph red bout
I llrcu the Htovus roponlodly until
they WITO rod hi.t all ovor. I
hpntod thoni to tlm highest possi
ble tunipur.ituru and cooled thorn
off as rapidly as possible. Under
these niojthuvuro tests the expan
sion and contraction did notiitTcct
the plates In thu least particular.
I elm rued one of thorn with unu
and ono-half small huckotfuls of
coil slack on Tuosdiiy evening ,
JunOoO , 1MI1 , ut 5 o'clock.
I'll I II thcfotloirliiii Tlnirsilait af
toiiivoii at 4 o'rlork the lioilij of
tiintofe roiitliini'il tolif 90 warm
Hint /iiii ( ( nnllil not comfortiMi/
Icltttd upon It. sifter Hint Ilinei/i
t < i ; < ni to cool o/f. flte live roali I
i tin tlicurlfiliHil tlinvycs of tlaeli
nl'orrri/iriTeil to it'ere visible until
111 o'tliiel : dud t > tnlniitcfoftht
ciflllnitoftliut ( tit \l. \
It will therefore l > o seen that till *
itoreartualtilltclilflt'r coiitlniiitim
l\lfartlft\i \ \ tlirv liour anil fifteen
tiitntitea. Thin lit tin r.rtrttunltn-i-
ry rerurtl , unit one of wlilclt yoi *
roti ir < fl lvi 'ftttit.
Jtett'eel/'iilly nuliinlttcil ,
COKltAlt 1IUVXE , Sap'l.
Presents Gien Awiy This
With 110.00 worth of poods ,
Sotsllvurp atcd tcajnooni
With J25.00 worth of Rood s.
Iluaittlful blsquo flguro
With J50.00 worth of goods ,
A hiindsomo picture-
With $76 0 worth of foods ,
A cenulnn oak center table
With f 100.00 worth orgoods ,
Cash or Weekly ; or Monthly An ulogant oak rocker
Payments.
Formerly People's Mammoth Installment , House.
Open Monday and Saturday Evenings-
DON'T BORROW TROUBLE. " BUY
'TIS CHEAPER IN THE END.
"CUPIDEHE"
MA190Q RESTORED Tlil Rreat\Vgetnbl *
- - Vltullz rUieprr : rp !
tlon of a faniounKrciicli physician , w2l quickly cure you of all ner
vous or dlwaws of the generative orKam , ( inch us J-ost Manhood ,
IruKimnla. I'ulnslti tfio/Ifck.fctemlMBl KmluloniNervous Dcbill'jr.
Dimples , Unfllnca V , Marry , Exhausting Drilna. Varlcooflo and
Conntlpatlon.
CUl'JlJSNlcleanc ; thollTorlha ttldnoya and the nrinatr
[ BEFORE AND AFTER orcansol all Impurities.
CUnniiKI ! strengthens nnd tostorcs nmivll weak onrnnB.
TlmrpiBonaiiffi'rt'rBarBnov curodby Doctors lo bocauBa ninety par oentoro troubled with.
rroatutltU. CIIl'IDUNT. IH tlm only known roir.wly to euro without an oporntlon. 0.000 tes
timonials. A vrrltlDnpuaraiitfoclven nnrt money reliii-ned If six Doxos docs not ' 'ffiict a por-
manentcnrc. Sl.OOu box.six for M.RO.bv mail. Send forolroiilarnnrt toHtlninnlalr.
Artow DAVOF. M'-'inoivr < ti..P O Hos ' . ' 070 Sail Frr.wilwn.c.il. ForsalBby
UOODMAN 1)UUQ CO. , 1119 raruamBtroot.Oinaha.
there l > no hnpo for an" to joa I or. who are rluklni ; Into
ffunonalU.iril ( ' i tao ( lrkneM an.l inl < fortino , I'l' . uud Pi
ccx.3piriiKKKimioijn aTyrnmg xe * A ot
'
Writs n full hlllorjcfjInrMU , ind for QUESTION LISTS > nd ICnFift Rook. 11 r rnone.i il. bo n < V
. mjr ikill U ( ml. I liiiiennJ Ib.'tmndi. I fl Cl 118 Till' . T' ul > ii < ri ne . ir Iff UtT.
Ell bifgrilikluf , btl. . n.il , lrr * Dil l.ertd.
wriu tr > nc nnl Coniullill n > ixnomllf or by !
„ . , . „ „ _ _ _ lifdltl > r.l tri > r llr lbut .f < rU.II.D. ln M.rr4.l 1 lntn.1l . ; Irtur m y d.r.ol fee lu IltlLTU ,
Or. ti. E. WJUD. President. CHICAGO MEDICAL & SURGICAL INSTITUTE. 30 Van Curen St. Chicago , ! ! ! .
any section or sections thereof there Klionld
be a compliance with the requirement ! ) of
the constitution In reference to amendment
and repeal of laws.
2. The act entitled "An act to amend sec
tions 1 and 2 of an act entitled 'An act to
Incorporate cities of the first clnss. having
less than 21,000 and more than 8OW Inhab
itants ! , and regulatlnc their duties , powers
and government , ' known as chapter xv of
the general laws of 1SS9. and punned and
approved March U , 1SS3/ ' laws of 1&91. p.
lK-3 ! , not having complied with the require
ment of the constitution contained In sec
tion U of article III. wherein It Is provided
that "no law shall be amended unless the
now act contains the section or sections so
amended , and the- section or sections so
amended shall be repealed , " Is void and
without effect.
3. Where the acts of a municipal corpora
tion are presumably without color ot law
an action of Injunction may he maintained
by a party showing n sufficient Interest and
that Irreparable Injury will result to him
through such nets , and this notwithstanding
a decision of the Issues In the case may In
volve a decision of the particular clans to
which the municipal corporation belongs.
4. ruder the facia as developed In this
case , held. That Injunction was the proper
remedy.
jhnolirs
flnlemlH cnratlmiwent for Nenroui or fofc !
Haitdiicli * , Uraln Kiliautllon , HlMpliMqiM.
l cUI or Kencraltioumlclai alto lor Jtn i >
lattUra , flout , Kidney JMuiruori , Acla Er *
I IMU , Anwmla. Antlilot < i for Aloobula
ami other eicowoo. i'rlco , 13 , 2S nJ COtttOk
iDIerrwcont.
THE ARNOLD CHEMICAL CO.
IB ! S. V/eitern Avsnuo , CIIICAUO.
For sale by all druKguu , Omaha , j i ;
WM. LOTJDON ,
Commission Merchant
Grain mid Provisions.
Private wires to Chicago and New YorH.
All business orders pluced on CiUeaad
Hoard of Trade.
Correspondence solicited.
Office , room 4 , 130'I /
Oinabu. Telephone 130 * .