THE OMAHA DAILY BEE : THUBSDAY , OOTOBEtt 20 , 1808.
FORCE OF HABIT.
By GRACE LINCOLN.
I.
Early Raptdlo was always ahead of time ,
usually one hour. When be was a baby be
would awaken from hl naps before ho was
expected to , not that Infants are reliable as
to the hour of their waking and sleeping ,
but , for Instance , If ho opened his eyes at
' 2 the first day , la was 1 the day after , 12
1 ( he next , and BO on. From the tlmo Early
wont to school , ho arrived before the doors
worn open , and moro than once , on cold
Vlntor mornings , was nearly frozen whllo
waiting for some ono to let him In.
His parents tried all sorts of means to re
strain Early , and the following Is an example
of their success. Ono night Mr. Hapldlo put
a handcuff on ono of the son's wrists , nnd
fastened a chain from It to a ring secured to
the bedpost ) . Ho retired with the Idea that
on the following morning when he came
flown to breakfast ho would not see Early
ktandlng In the doorway of the dining-
room. After A refreshing night's sleep the
head of the house was awakened by a
clanging rattling sound on the stairs. He
rushed out of hla room nnd saw Early dls-
ftppcar through the hall with the chain , pad-
look and bedpost dangling after him.
"How In nil possessed did you gut away ? "
Bhoirtcd Mr. Knpldto.
"I did It with my little hatchet , father , "
cheerily replied the truthful boy.
Barly grew up and went to college. His
carllness afforded much amusement for
his fellow-students , but after nwhllo they
became accustomed to his being an hour
ahead of any ono clso , and beside , they
found him most useful In buying tickets for
fcall games. Owing to his eccentric habit ,
ho was first In line and would get any num
ber of scats for his friends.
,
be taken up for addressing the wrong
Klrl. "
Then he explained to her how he had been
left to wait for her , and of his mistake.
From that day Early and Lily met often ,
but If the meetings wcro sweet they were
decidedly short. Early would arrive at a
social gathering an hour ahead ot time , and
Lily got there an hour after every one
r > lsc. AB Early was first to come , so ho was
first to leave , and could only catch a fleeting
Kllmpso of Lily.
As tlmo passed , and the meetings con
tinued to admit of but a passing word or
two , Early was In despair as to when ho
would over bo with her long enough to
propose. Wherever ho went ho thought
of how he courd eay the wordi quickly
enough.
"I love you. " or "marry me. "
Late ono afternoon he boarded a cable car.
It was crowded , and Early was jammed
against thedoor.Justlnslde. As the car jerked
backward and then forward It throw a young
woman who had got on violently against
him. He looked down nnd saw it was Lily
Latlly. In a breathless , hurried voice ho
whispered In the ear that was pressed
against his lips :
"I love , marry me. "
The next moment fhe had rlghtod herself
and nodded her head. He took her arm and
helped her off the car , then rushed across
the Bfreet and Into a Jeweler's store , where
ho bought her a sparkling solitaire.
Early wished to bci married the next week ,
but Mrs. Latlly would not listen to such nn
arrangement.
"Lily Is my only daughter , " she said ,
"and four months from the day of your on-
gaeemcnt Is the earliest date I will even
consider. "
tN ) ROUNDING THE CORNER , HE RAN INTO THE END OF SOMETHING WHICH
HIM TCI ICKATJT.V nntlUT.Ii' TTT >
The first tlmo bo was asked to a dinner
party , the father of his hostess , coming
borne , found him standing on the steps out-
eldo. Never having heard of Enrly's cus
tom , ho concluded a mistake had been made
ns to the hour ot dinner In bis invitation.
Fapa , therefore , hurried through his toilet
nd entertained his daughter's guest until
that young lady made her appearance. After
that he was asked an hour later than other
people bidden to n feast or function.
About this tlmo Early ewallowcd a germ ,
* 'hlch produced a disease called love , from
vhlch there was no escape. The cause of all
his blissful suffering was a young woman by
the name of Lily Latlly. A rcsumo of this
woman's history will show the unhappy situ
ation of young Unpldto. Lily Latlly had
Uovor been known to be on 'time. All her
life she bad boon late to meals , late to
chool , and nftor she had grown up and
taken her place on the society rush line , she
tad caused her friends much annoyance by
her tardy appearance at places where sbo
wan invited. People could never be seri
ously provoked with Lily , for after keeping
pome otic waiting an hour , she would como
hishlng up nnd begin to tell some Incident or
story In such a charming way that she who
bad been wiggling llrst on ono foot , and then
on the other , would bo laughing gaily after
being In her company five minutes.
Early ruot Lily one day at a picnic. As
Usual he was an hour ahead of the party ,
and tbey arrived , all but Lily , just In tlmo
to take the boat up the river. The steamers
ran every hour , and as Early was such a
patient waiter some ono suggested that ho
Should stay behind nnd bring Miss Latlly
up on the next boat.
"H will be a case of two extremes meet
ing , " one smiling damsel afllrrurd.
Enrly was willing -to wait , but as the
steamer moved awny from the wharf he re
membered ho had never seen Miss Latlly.
Ho shouted to , the ( others , but they pre
tended not to hear , or thought it an excel
lent Joke for Early Raptdlo and Lily Latlly
to meet in such an unconventional way.
Barly bad never heard that Lily Latlly
was an hour late , wherever she went , so
kept his eye out for any young woman who
might bo looking anxiously for friends. At
length bo saw such a ono , carrying a largo
valise , -coming around the corner ot tbo
lock.
"U must bo she , " ho said to himself , nnd
gallantly rushed forward to take her bag.
"Allow mo to carry It for you , Miss Latlly ,
wo are to join the rest ot the party by the ,
next boat. " As Early finished liU little
speech he put his band on the valise.
"Not If I know It , " broke In a stout
woman , puffing after the girl. She jerked
the bag from him , nnd that article of bag-
Rage , having a weak lock , burst open , and
th contents rolled hither nnd thither. Early
endeavored to mutter apologies for bis mis
take , and succeeded In running pins Into hla
fingers , and pinching his thumb with curling
tongs whllo helping to put the things back
into the bag. Seeing It useless to try to
mollify the mother ot the girl , to whom he
bail spoken , ho jammed his hat over bis
eyes , and hurried from the scene ot his unfortunate -
fortunate encounter.
On rounding the corner , ho ran Into the
rn < I of something which caused him to nearly
double up. U proved to be a parasol , and
the owner displayed a pair of laughing
brown eyes , above the rim of her sunehado ,
and began to explain her haste. Early forgot -
got the gnawing sensation the blow had
Riven him , and stretching his hand over the
tiilsslle , of torture , be cried out :
You are Miss Latlly ? "
"Quito correct , but how did you know
me ? "
" 0 , never mind that now , only I'm to take
you to the picnic by the next boat ; but for
ptoodncsa tvako don't go that way , " aa sha
( Urted to round the fatal corner , "or I may
The day was set and preparations went on
on a most extensive scale.
The best man and the 'maid of honon had
mutually agreed that Early should not ap
pear at the altar until tbo noon hour and
that Lily should bo punctual to the minute.
Doth of these officials were persons whoso
minds were evenly balanced and they
thought the habits of Lily nnd Early most
unreasonable. They hel-1 long consrltatlons
together and as the eventful day approached
boa felt confident that , at last , the brldo
and groom would tick at the same minute
with the rest of the world.
The day of the wedding dawned bright ,
clear nnd sprlng-llko. The best man was
obliged to go for the minister , but ho had
spemt several minutes impressing upon
Early the fact that ho must not leave the
house for three-quarters of nn hour nt
least , and that he , the best man , would bo
waiting for him In the ante-room of the
church. Early' seemed in no hurry ant ]
cheerfully agreed to all ho proposed.
The maid of honor hsrself superintended
the dressing of Lily nnd saw that she was
ready In ample time. Then she drove to tha
church with the bridesmaids , leaving Lily
standing In the hall waiting to follow in
the next carriage.
The best man bad to wait for the min
ister and did not reach the church until
ten minutes before 12. He rushed into the
room where he expected to find Early. It
was empty ! Ho looked through a small
opening between the curtains , which sepa
rated him from the church proper , and his
heart sank within him , for there , in full
view of the incoming friends and relatives ,
stood Early ! To all outward appearances
the groom was as calm ns If ho werol wait
ing on n corner for n car.
The best man consulted with the minister.
"It isn't right to leave him there alone ,
but If I Join him I shall act like nn Idiot ,
oml I'm fully convinced he will never re
treat until Miss Latlly arrives. "
"It Is a strange case , surely , " murmured
the minister. "The only 'thing for you to
do Is to wait for the bridal party , nnd Join
him as they approach.
The majority of the people who had been
asked to the wedding expected It would bo i
I different from any other they had ever at-
I tended , and after they had been In the
church a few minutes they became no
I customed to Bceluc Early Rapldlo standing
! nlono at the altar , facing them.
Immediately after his friend , the best rnnn , ,
had left him , Early had caught up his hat
and gloves aud had dashed from the house.
Upon arriving at the church bo had walked 1
sedately in nnd bad taken up his position !
in front of the altar , like a general who '
will never leave the Hold until bis mission i
Is accomplished.
At 12 , precisely , the bridesmaids arrived I
at the church. They turned to see If Lily
was behind them , but sbo wax not there.
They entered tbo vestry and could hear :
the choir slnelnc from within.
"We'll have to go in tn about flvo
minutes , " whispered one usher to another ,
"as the singing will stop , and something
must bo done to support Rnpldlo ; ho has
been there nearly an hour now. "
The wedding party formed themselves in l
line and waited anxiously for tbo bride. As
the singing ceased tbo two ushers In front ,
thinking they had received a signal to '
start , walked slowly up the aisle to tha >
strains of "Lohengrin. " They thought tht
rest ot the procession was behind them , and 1
did not realize tbey were alone until they r
reached the steps leading to the altar , when t
upon turning they saw tholr position. They '
remained where they were , however , aud ap
parently were not disconcerted.
Uy the starting of the first two ushers a
.
plan was rapidly developed In some ono o 1 |
thn bridal party's hoaiU. The organist was s
notified , and once more the wedding march
was played , As the opening chords were
again heard tno other ushers went up tbo
aisle. This was rcocated until the eight
ushers two at a tlmo and the four brides
maids , also two by two , walke.i calmi > up
to the chancel ratline. Then the march was
played again and the maid of honor ap
peared alone. The case was desperate , but
the assembled people must bo kept quiet , and ,
she came bravely on.
The be t man hud long since been deserted -
sorted by the minister , who felt It his duty
to take hU place , as the first two ushers
appeared. Left alone behind the curtain ,
be bad worked himself up Into n terrible
fidget. When bo saw the maid of honor
come In alone- , however , he rushed out and
stood by Early's side. People afterward remarked - i
marked that ho was the only agitated one
In the whole party.
till this tlmo Enrly had stood like a statue.
The coming in of the bridesmaids and
ushers had not disturbed his serenity.
At this moment tihcro was a commotion
at the entrance ot the church. The wedding - I
ding march pealed forth again , vibrating
through the edifice , as Lily , leaning on the
arm of her father , and wearing a diamond I
sunburst , t'ho gift of the groom , majestically , j
nnd as If she were on time , sailed grandly .
up the aisle. |
There were signs of returning llfo In
Early. Ho hastily led his bride to the altar.
The ceremony began , the minister had
reached the words :
'If any person BOO just cause why" when
Early began to back away from the nltsxr.
Ho kept firm hold of Lily's hand , The tuald
of honor snatched up Uie brldo's train ; the
best man , nervously clutching the ring , kept
as close to Early as possible ; the minister
walked facing them , and spoke as rapidly
as ho could ; and the bridesmaids and ush
ers followed. Mr. Latlly gave hla daughter
away nt the first pew , then ho slipped into
the scat beside his wife.
Thus the whole bridal party became a
moving body , keeping step to Che minister's
voice. Half way down the aisle the ring
waa put on , and as the bride and groom
reached the threshold ot the church the
blessing was pronounced.
Early conducted his wife to the carriage ,
and they drove t'o Latlly's house , to re
ceive the congratulations of their friends.
As the best man and maid ot honor were
refreshing themselves with chicken cro
quettes , at the reception , nho mournfully
confided to him.
"I confess myself beaten. If a girl Is
behindhand up to the day of her marriage ,
she will bo on thnt day. "
"Yes , " ho replied , "and If a man has al
ways been ahead of everyone else , bis best
man can't restrain htm on his wedding
day. "
They both agreed thcro would bo a differ
ence of time between the Hnpldloo , even
until death.
SUPREME COURT SYLLABI ,
8295. Combination Gas Engine Company
against King. Error from Saline county.
Afllnncd. Harrison , C. J.
1. A judgment based on a finding on cvl-
denco in which thcro is a conflict relative
to the material point , but of which there
is sutrtcient In support of the llndlns , will
not bo disturbed.
W29. Lackey against State. Error from
Hitchcock county. Affirmed. Hasan , C.
1. The correctness of the ruling of a
district court In giving or refusing in
structions cannot be considered hero un
less such ruling Is llrst challenged in the
district court by motion for u , new trial.
S370. Boyd ugulnst Munson. Error fronv
Mndlson county. Afllrmtd. Ryan , C.
Under the provisions of section 1001 ,
Cede Civil Procedure , a motion to set
usldo a Joint Judgment against two or
mora defendants , Inseparably connected as
such , should bo overruled , when made by
ono defendant on his or her own bchalt
alone.
83W. Phillips against Dorris. Error from
Saunders county. Reversed. Ragan , C.
1. Only a Joint tenant or a. tenant in-com
mon ot r ul estate can maintain au action
for its partition.
2. An administrator or executor is nei
ther a joint tenant nor a tenant In com
mon with the heir or dlvlscr of his dece
dent and cannot maintain an action for
tho- partition of his rea estate.
3. The object of a p. .ilon suit is to
assign property , the fua simple title to
which is held by two or more persons us
tenants or Joint tenants In common , to
them In severally.
4. The raising of questions of adverse
title. In a partition suit does not oust the
court of jurisdiction nor render a dismis
sal of such suit necessary ; the court may
bold the case , determine * the issues of
title , and then proceed with the. partition.
8331. Railway OlilccrH" and Emplro Acci
dent Association against Drmnmuml. Er
ror from Lancaster county. Alllrmed. Sul-
llvun , J.
1. A petition which is defective by rea
son of the. omission of material facts
therefrom will bo aided and cured by the
averment of such facts In the answer.
2. Generally a plaintiff Is only required
to bring his case within tha terms ap
pearing on the face of the contract in
suit , and need not negative conditions and
exceptions Indorsed tnereon.
3. Where , In nn action on a contract of
Insurance , it is claimed that death re
sulted from one of the. cxccpted causes
enumerated on the back of the policy , It
Is for the defendant to pl ad and provo
that fact.
4. An accident , within the meaning of
contracts ot Insurance against accidents ,
Includes any event which takes place
without the foresight or expectation of
the person acted upon or artect d thereby.
6. An accident insurance' policy < in-
talnea a clause Insuring ngalnst Injury
"inflicted by external , violent and acci
dental means" nnd excepted cases where
thft Injury results from the Intentional
acts or the Insured or any other person.
Dc.ith resulted from a gunshot wound In
flicted by a robber. Whciner the wound
was accidentally or Intentionally Inflicted
beliiK a matter of inference from equivocal
circumstances , the Jury wcro properly In
structed that tha plaintiff could recover
unless the shooting of the assured was the
robbor'u Intentional act.
8219. Kaufmann ugulnst Drexcl. Appeal
from Douglas county. Reversed. Sulll-
van , J.
1. The word "thereupon" ns used In sec
tion 1W9 of the Code , of Civil Procedure , is
an adverb ot time signifying without de-
lav.i. .
i. If , In an action of replevin pending
bcforo a justice of the peace , tnc ap
praised value of the property taken on
the writ exceeds J200 , It Is the duty of the
Justice to transmit the transcript and
tiles therein to the district court without
unnecessary ilcliir.
3. The failure of the Justice to comply
with the. requirements of said section for u
period of nearly ten months held to work
a discontinuance of the action.
\Vhoro Judgment Is rendered ngalnst
n party whose appearance In the cause Is
entered by an unauthorized attorney the
presumption of Jurlsdletlon Is not conclu-
i nlvo in an original action directly assailing
1 such Judgment.
6. An action may bo maintained to en-
join tne enforcement ot a void Judgment
when there. Is a concurrence of the fol
lowing conditions : (1) the judgment must
bo without any legal or equitable basis ; ;
(2) ) its validity must not appear on the
face of the record ; and (3) ( ) the party com-
plaining must bo without an adequate
remedy nt law.
' fi. Section MC of the. Cede of Civil Pro
cedure has reference only to judgments
and orders possessing somu degree of legal
vitality , and not to such as are abso-
lutely void.
No. 829S , Dean against State ex rel Miller.
Krror from Phelps county. Reversed. Irvine -
vine , C.
A proceeding In quo wnrr.into , brought
by n claimant to the olflco. will not be dls-
mlfstd o < a review thereof denied because
pending the review of the case In this court
the term of oflice lias expired , the olllco
being a lucrative one.
2. In a Judicial proceeding to test tliu va
lidity or result of an election , where It lum 1
been shown that Illegal votes were cast ,
testimony cannot bo received of declarations '
made by the Illegal voters as to the imturo 1
of the votes by them cast , unless such dec-
laratlons are strictly a part of the res 1
gestao or fall within some recognized ex 1
ception to the rule excluding hearsay evl-
derce.
No. 10100. Hudclson against First National l
Hank , Tobias. Krror from Sallno county.
Atllrmfd. Sullivan , J.
1. It Is not error to deny a motion whleh i
cannot be allowed substantially In the form i
„ In which It IP presented.
2. It Is not reversible error to overrule a i
motion to strike from the reply evidential I
facts which. If submitted to the jury , would I
tend to establish the ultimate facts alleged 1
in the petition.
3 , Where instructions lay down correct t
legal propositions , possibly pertinent under
the pleading ? , It will be presumed , in the i
absence of a bill of exceptions , that such i
Instructions were applicable to the evidence )
produced on the trial ,
4 in an notion of replevin In the district t
court the pleadings may be amended In
furtherance of justice na In otlu-r cases.
Xo. 10177. Snider against State. Error
from Duller county. Reversed , Irvine , C.
1. In laying the foundation for evidence
of confessions In a irlmlnal care It Is suf *
tident to prove affirmatively all that oc
curred prior to and at the time of the con
fessions , provided sued affirmative proof ex
cludes the hypothesis of Inducements of
hope or fear.
2. Witnesses not experts may give their
opinions ns to n person's sanity only ntlt-r
narrating tbo facts by tliom observed on
which thny base their opinions.
Z. An Instruction In a criminal case in ef
fect that every one is presumed * anc , but
If there Is evidence tending to rebut the
presumption nnd sufficient to raise a reason
able doubt on the Issue of Insanity then the
burden Is on the state" to show sanity be
yond a reasonable doubt , shifts the burden
of proof , nnd IB , therefore erroneous' .
4. To cast on the state the burden of
proving sanity it Is only requisite that Diero
be some evidence tending to prove Insanity ;
It Is not necessary that there must first bo
evidence sufficient to raise a reasonable
doubt.
No. 8303. Estate of DavU against Watklna.
Krror from Douglas county. Afllrmcd. Ra-
gnn , C.
1. An assessment levied by the comptroller
of the currency on n stockholder of a na
tional bank draws Interest from the date
such a-sscssmunt Is made payable.
2. The commission or written appointment
of a receiver of u national bank Ifsued by
the comptroller of the currency signed by
him and attested with his ncal of olllcel Is
n certificate within the meaning of section
SS4 , Revised Statutes of the United States.
3. Such a certificate , prove ? Itself and Is
admissible In evidence without extraneous
proof of Its genuineness.
4. Tbo courts of this state take Judicial
notice of the acts of congress providing for
the appointment of a deputy comptroller of
the currency and defining his powers and
duties.
G. In a suit against n stockholder of a
national bank to recover assessments levied
against him by the comptrollur of the cur
rency It will bo prcsumnd that the stock
certificate bearing the corpnrajo seal of the
jntik was > Issued by the olllccr having au
thority so to do.
C. In suctt n suit the validity ot the In
corporation of the bank Is a collateral Issue
and the stockholder is estopped from as
serting that It Is not a corporation do Jure.
No. S2CO. Chicago , Ruck Island & Pacific
Railway Company against liuol. Error
from Lancaster county. Alllrmed. Norval ,
'l Where , on an appeal from nn award of
damages for land taken for right of way
purposes the damages nro found to exceed
ho award of the commissioners. It is proper
to instruct the jury to allow interest from
the time of condemnation nt the rate of 7
jer cent per annum.
2. A party cannot obtain a reversal on
the account of the admission of Incompe-
, cnt evidence which ho brought out on tha
cross-examination of the witness of his iid-
. ersary.
3. Error cannot bo predicated upon thfr re
fusal to eliminate trom the record the tes
timony which the party complaining him
self Introduced.
4. On the trial of an nrrical from nn
award of damages for Inrrl appropriated
for railroad puitoses a map or plat of the
premises shown to bo correct Is admissible
in evidence.
5. The owner of land appropriated by a
railroad rempany for right ct way , who
liae redded upon and cultivated the land
nnd IH fmnilUr with the value thereof , Is
a competent Witness on the question of its
value.
G. The Clements of daniace for the con
struction of a railroad across a farm are
the actual value of the portion taken nnd
the depreciation In value of the remainder
caused by the proper construction and
operation of the railroad , excluding gen
eral benefits.
10322. State against Kcnnard. Error from
I/nneanter county. Reversed. Ryan , C.
The facts In this case examined and held
to show that the allowance of the claim ot
defendant In error against the state waa
Improper because of the fact that In the
Joint resolution of the legislature under
which defendant In error was employed as
agent there was an Inhibition of the em
ployment of an agent to collect the G per
cent cash school fund accruing to the
stixtc
S2W > ! Anderson against Krelillcr. Appeal
from Douglas county. Harrison , C. J.
1. A finding of the court that the question
of priority of liens between two mortgages
was not settled In a prior action held sup
ported by the evidence.
2. To sustain n plea of prior adjudication
the matter In question must bo shown to
have been of the issues joined nnd tried
In the former actionf
3. A mortgage is but an incident to the-
debt the payment pC.which U secures ana
In ownership follov/k / : the transfer or .as-
slcnment of thci.'UitViSr. , .
4. The assignor'of h''promlssory note , the
payment of which Is secured ' a mort
gages cannot as a rule release uio promls-
ser from liability for the debt , and by such
release bind the assignee or in any manner
or to any extent disturb or change , the
force of the mortgage lien.
5. Held that the evidence will not siista n
a finding that certain parties , plaintiffs in
a prior suit , acted therein and in some
other matters connected with the trans
actions Involved In the present litigation
as agents for the plaintiffs herein.
6. The conditions of thp Issues as devel
oped In evidence are such as not to present
for discussion nnd decision the clllcleiicy
or force of a , notice of his penders per
fected In nn action In which It Is now cor-
tendcd the question herein litigated was
settled. _
810S. Norfolk Beet Sugar Company
ngalnst Hlght. Error from Madison
county. Reversed. Harrison , C. J.
1. Against an objection at the inception
of a trial to the introduction of any evi
dence for plaintiff on the ground that the
petition does not state a cause of action
the pleading attacked will be liberally con
strued and If iKJSSible sustained.
2. An employe assumes all the ordinary
risks and hazards incident to the employ
ment of which he. Is possessed of , sullicient
Intelligence and capacity to know and un
derstand and an adult person Is presumed
to bo of HUfllclent mental power to com
prehend such risks ; but If n person Is em
ployed for a work which Is dangerous or
to labor in a dangerous place or situation
and by reason of youth. Inexperience , Ignorance -
noranco or want of mental capacity he
may fall or falls to comprehend tha dan
ger it Is the duty of the employer to warn
the employe of the hazards and Instruct
him of the work. ( Jones against Florence
Mining Company , liu Wis. , 277 , 2S N. \ \ .
3PAn ' 'instruction in an action by a
servant against the master for damages
for Injuries received while Jn the perform
ance of work which states that the em
ploye assumes the "ordinary risks of the-
business upon which he enters us far as
these risks at the tiino of entering on the
business are known to him or cotiia be
readily discernible by a person of his ago
and capacity in the nxerclse of ordinary
care. " Held , In the conditions of the is
sues as developed In the pleadings and evi
dence prejudicially erroneous In its refer
ence und limitation relative to time.
4. An instruction which would allow the
jury to render a verdict on an issue not of
the pleadings Is erroneous.
5. An Instruction examined and dcWr-
mlncd not open to the criticism that lu it
there was an attempt to specifically state
or cover all the essential or material elc-
' "tfsssf Pickering nirelnst Hastings , Error
from Buffalo county. Reversed. Norvnl. J.
1. It Is the settled doctrine of this court
that the liability of a stockholder in a
banking corporation , under the provisions
of section 7. article xl. of the constitution ,
Is for the creation of a fund for the ben
efit of all creditors , and an action to en
force such liability must be prosecuted for
the benefit of all the creditors of the cor-
I > oratlon ngalnst all the stockholders within
the Jurisdiction ot tlv. court.
No. 8310. Norrls against Hurt County. Er
ror from Burt county. Alllrmed. Ragan. C.
1. In the absence of an express statute
to the contrary the rule of caveat ernplor
applies to a purchaser at a tax sale.
2 The liability of a county to a purchaser
for money paid by him to Its treasurer for
Innds sold by the latter at tux sale , there
being at the time no valid tax delinquent
against the land nnd for which It 5s sold ,
Is not a common law , but u statutory ono.
3. The rights nnd liabilities of such pur
chaser nnd the county are to be aetermlned
by the statutes In force when ths void sale
occurred. , , . . . . .
4. Section 131 , chapter 77 , Compiled Stat
utes , revenue ) law , Ib70 , applies only to sales
made after It took effect.
C. A county cannot bo compelled to In
demnify a purchaser nt a void tax rale
mnde prior to June. 1S71. unless the sale re
sulted from the mistake or wrongful act of
Us treasurer.
No. ! < 9'J3. hodowlg ngnlrtst Standard Cattle
Company. Error from I'lntto county. Mo-
Unit sustained. Norval , J.
1. A plaintiff may proceed to enforce Ills
judgment obtained on a contract for the
payment of money only , notwithstanding
the execution by thci defendant of a sufll-
clnnt superscdfns bond as required by law
to stay proceedings pending a review of the
Judgment In the appellate court , upon the
plaintiff executing , with nt least two sum-
clent sureties , the undertaking presrrlbcd
by section 531 of the Code of Civil Prored-
nro und obtaining leave from th' ' court below -
low or a judge thereof In vacation , to en-
force * the collection of the Judgment.
2. Where plaintiff has compiled with the
provisions of section 591 of said code the
defendant Is not entitled to nn order re
straining the tnforceimnt of the Judmnent
during thn pendency < if error proceeding to
review Hiich Judgment.
No. S251 Lnsbury ngalnst MrCaguo. Ap-
peal from Douglas county. Affirmed. Nor-
vnl , J
1 The power conferred by section 29.
chanter Ka , Compiled Statutes 1S55 , upon
? tfWWWWTOTOWQW ?
-J im * run v& * v ff w n * "
> evere
Dr. IVSflHes9 New Heart Core ,
The Great Heart And Blood Tonic.
Heart disease kills suddenly , but never without warning.
Those "warnings" miiy bo faint unil brief , or may be startling
ami extend ever mnnv years , but they are none the less cer
tain and positive The victim realizes tin- fact , and recofj-
Mlzlng the symptoms tooottcn is satisfied with the thought ,
"it will pn away. " Hut. IT XKVKK PASSES AWAY volunta
rily. Heart disease once installed never gets better of itself.
It is first manifest by shortness of breath from the leas * , ex-
ortlon ; occasional sharp pains in the region of the heart which
In time grow more and moro frequent and piercing ; smother
ing spoil ; ; , weak and hungry spoils without appetite , and
many other symptoms , unmistakably indicate- heart trouble.
If Dr. Miles' New Heart Cure is used in the early stages , re
covery is easy and simple. At any stage it Is absolutely cer
tain to bcucllt if its use Is persisted In.
Margaret M. Armstrong , of Uockpnrt , Mo. , after having been cured of
heart disease of years standing , wriles as follows : "H is with pleasure that
I recommend Ur. Miles' New Heart Cure. For years I suffered terribly
with lieart disease ; could not sleep on left side , and would be wakened
with smothering spells and shortness of breath. On several occasions I
was so bad that I thought my end was near. At last 1 commenced to use
Dr. Miles' New Heart Cure nnd found immediate relief. Since then I have
uot been troubled with those distressing pains and my health is food. "
Mrs. Mary Hess , of Washington C. II. , Ohio , says : "For more than
Rev. A. Lemkau , of Topeka , Kas. , a twenty years I was troubled with heart disease , and I tried many ad
leading writer on the great German paper , vertised remedies without finding anything that would benefit me. Finally
TJJE KANSAS TELEGRAPH , writesrccently : 1 heard of Dr. Miles' New Heart Cure and I decided to give it a trial. To
"What I wrote you two years ago , regard my surprise nnd joy I found it to be the best and safest heart medicine
ing the cure of my heart trouble by Dr. that I ever tried. It gave me relief immediately and its effects are so
Miles' New Heart Cure , it as true today as lasting. I heartily recommend it to anyone in need of a heart medicine. "
it was then. I had suffered severely with
pains about the heart and shortness of Dr. Miles' Remedies arc for sale by all druggists under a
breath , which physicians failed to relieve.
I used Dr. Miles' New Heart Cure and guarantee first bottle benefits or money refunded. Accept
Restorative Nervine alternately for several nothing else. No other preparations are "Just aa good. "
weeks. They cured me and I have had nn Hook on heart and nerves sent free. Address.
of the trouble in . "
return three
nearly years. DR. MILES MEDICAL CO. , Elkhnrt , Ind.
the authorities of a city of the metropolitan
class to levy the costs nnd expense * ) of I
draining , MlUn ? or grndlnt ? n lot to prevent j
stagnant water accumulating tlicrcon nnd
la-coming a nuisance Is contingent upon llu *
failure of the owner of the lot to till , drainer
or grade the same when x > requested. The
law contemplates that the city request the
owner to perform the work , and If ho fall
to do so the city can cause the premises to
be drained or tilled and assess the cost
thereof against the property.
2. Whcro the owner of a city Jot Insti
tutes an action to have declared void cer
tain special taxes assessed aKalnst the lot ,
the burden Is upon him to establish the In
validity of said tax.
! i. A special tax asncf ed by a. city on the
lot of a citizen to pay the costs of abating
a nuisance created by the municipality on
the same lot will not bo sustained In equity.
4. The validity of a special tax levied by
.1 municipal corporation against the lot of
an Individual is ordinarily as available to
the subsequent purchaser of the property
as to ono who was Its owner when the as
sessment was Imposed.
No. 10172. Whltoman nRalnst 1'erUlns.
Error from Dawson county. Alllrmed.
Harrison , ( . ' . J.
1. A contract of sale nnd purchase of r-ul
estate in which the time In relation to ile-
ferred payments of the purchase i > ric o Is
made of the essence ot the contract nnd a
forfeiture provided for non-performanrc
may be enforced in accordance with the
terms of the express stipulation.
2. A tender made after action Instituted
by the vendor to enforce his rlKh'.H under
the contract ts too late to lu effectual.
3. A vendee of such a contract is not ns
ngalnst the rlghta of the vendor In an n-
tlun to make- operative the stipulation ami
Its forfeiture within either the letter or
spirit of what Is known as * the "Occupying
Claimant's Act , " chapter C3 , Compiled Stat
utes , 1S97.
4. In an action of ejectment a ftcncrnl de
murrer was Interposed to the reply and t n
hearing was overruled , the de-nurrant an
nounced and made of record his Opt-Tinlna-
tlon to stand on the demurrer anil'plead no
further and judgment was rerrJuTd : iRi.inst
him ; held , not on demand and ns of couise
entitled to have the judgment set tiMU * .mil
a now trial ordered by virtue of the , > ro-
vlslons of section GTO of the code , viz. : In
nn action for the recovery of real propoi
the party against whom jmlcm'int ia ren
dered may at , any time during the term lit
which the Judgment Is rendered demand an
other trial by notice on the journal , and
thereupon the Judgment shall be v irntrd
nnd the action shall stand for trial at the
next term. "
No. 10142. In ro Grainger. Krror from
Lancaster county. Atllrnicd. Ilyan , C\
Where from the journals of both bran h-jfl
of the legislature and from the copy of the
bill rent to the governor for approval and
by him approved , nnd whleh was attested
by the proper olllcers of both houses , it Is
shown that a certain bill was properly
passed , that fact cannot be disproved by
the Introduction In evidence of what It Is
agreed between the litigants was the bill
originally Introduced and memoranda
thereon indorsed tcmllni ; . to show that the
Mil approved and attested was not the one
really passed by both houses
No. S2S9. Harriet against Ciivanauqh. Kr-
ron from Douglas county. Alllrmed. Harrison
risen , C. J.
1. An Instruction given which submits to
the Jury a question of fact material to the
issues on trial of the existence of which
thcro has not been evidence sufllctent to
warrant or support an Inference Is error
which "may call for setting aside 10 verdict
or reversing a Judgment.
2. All material allegations of new matter
In the niis-wer not denied In a reply must
bo taken as true. ( Section 131 , Cede of Civil
Procedure. )
3. Admission of Immaterial evidence which
though erroneous Is not prejudicial to the
rights ot the complaining party , Is not
ground for the reversal of a Judgment.
4. A finding on a point of the Issues ns to
which there Is a conflict In the evidence
will not bo disturbed If of the evld > nco
theru Is HUdlcleut favorable to sustain It.
Z. An exception at the time to giving an .
Instruction Is essential to secure a review
of error assigned of such action.
n. The admission of evidence will not bo
reviewed In error procefdings to this court
If of the alleged error of the trial court In
that regard there Is no special assignment
In the petition In error.
7G35. McKarlaml against West Sldo Im-
provemtnt Company. Krror from Lancas
ter county. Alllrmed. liagan , C.
1. Whore , In a suit by a corporation
against a subscriber to Its stock to recover
his unpaid subscription , the defense Is that
the entire capital stock was not subsrrlb tl
a reply which avers that the def < ml.mt
waived thn nonpayment of the entire stnr k
Is good as against : i demurrer. Sue h a
plea Is not a conclusion of law , Iml the
averment of an ultimate fact Included in '
which nre all the ingredients which consti
tute waiver.
2. Under such a plea the acts and omis
sions of the defendant which tend to
show or from which may be Inferred nn
Intention on his part to waive subscription
of the entire capital stock Is competent
and relevant.
To lie Content unit Ilnppjr
UBO "Garland" Stoves and Ranges.
Ilccouinifiiil tli Nino-Hour Day.
CINCINNATI , Oct. 19. At the session of
the Master Horseshoers' National Protective
association the recommendation of President
Purcell for nine hours per day was con
curred In.
"I Imvo bcuii troubled n crrnt tlcnl
\vltli u torpid liver , willed produces constipa
tion. I found CASCAKHTa to bo all you claim
for them and secured mioh relief the llrst trial ,
that I purchased another supply nnd wni com
pletely cured I Bliull only bo too ( 'lad to rec
ommend Cascarels whenever the opportunity
U presented. " J. A SMITH
1.VJO Susquobonna Avo. , Philadelphia , Pa ,
Pleasant. Palatable. I'oteiit. Taste Oood. Do
Good , Neror blcken. Weaken , or Grlie ICo. JJc.OJc.
. . . CURE CONSTIPATION. . . .
SUrllnf Ktmtif fo p . ; , Cblt.j. , M..lr.ll. ( t * YorV. 0
Kn.Tfl.nflP So'1 ' " and in riuitc l Jiy all drug.
HU- I U-DRU UU to CTJIU : Tobacco llatll.
Weak Nerves Made Strong ,
CINCINNATI , Ark. , July 14.
I suffered long with weakness ,
nervousness , headache , and sick
stomach. I lost flesh until my
neighbors hardly knew me. The
doctor's medicine ilid me no Rood.
My husband bought ine n bottle
of Wine of Cardui and sonic Black-
Draught , nnd before I had taken
half of it I felt like n different
person. I am now entirely well.
MRS. MINNIE HOLT.
Nothing pulls down a woman's strength like ntrvoiunus.
Her face becomes haggard and full of disfiguring lines. The
form loses its roundness. Beauty fades away , and of the former
self only a wreck remains. Nervous women are easily scared.
They "fly to pieces" at the slightest provocation. A little
noise startles them. After a while , fainting spells and hysteria
come on. The trouble is nearly always due to some derange
ment in the organism of womanhood. A little ailment there
makes a deep effect upon the nerves. Wine of Cardui cures ner
vousness by correcting the cause by strengthing the ailing
organs , stopping drains and building up the whole system. It
brings back color to the
LADIES' ADVISORY DEPARTMENT. checks and plumpness to the
For adTlco In cnioi requiring epo-
clil directions , nddreji.elTlnsi ijrap- form. It is little short of
'
tom , Laiiit' Advtotru Jef < iTtmfnt ,
The Cknttanaar * EacdleloeCo. marvelous what
great good
Cbtltanoog * , Teun.
this vegetable Wine docs for
woman , no matter what the trouble with which she Is afflicted.
DRUGGISTS SELL LARGE BOTTLES FOR $1,00.
maMHOOD RESTORED
Vitnllzer will quickly euro all nervous , 01 dlnensonof tlio Kenoratlvit or-
Kana brought on by youthful nrrorn or OXCCHHOH. nucli an Ix > nt M.inhontl ,
insonmlu , Spnnnntorrlioea , Pnlnn lu Hack , llvll Un-npia , Homlnnl Kiiiln-
lens , NervouR Debility. Pimples. Hcmlnclie , Unnmrsa to Marry , Ex
hausting Drains , Varlcocel * and Conaitp.itlon. Stopa IOHBOH by day 0'
nlirlit , PrevnntaqulckiictB of cllBctiart'u. which lovls to.Spcrmnlorrliuei
nnii Impot ncy. Cleansers the liver , kidney n nnd urinary owirm of nil
and Impurities. Strengthens in-1 roatorra Hninll weak ore.iiiH. fl.ODnbox ,
Ufor.VOi > . Guaranteed to cure Send for ( me circular and 61X10 tcatl-
conUll Davol Medicine Co. . bau Franolaco , Cal. Fur ttalo by Muytri , JJUlon Drur Co , Omu'oa ,
TVIIRN OTTinnS KAIIj COSStJl/T
Searles & Searles ,
_
SPECIALISTS.
Gnnruntee to cure Npccilllj' niul null *
cnlljr nil M2IIYOI , CIIItUMC AXD
I'lllVATIS dlkciiNUH of Jiirn and women
WEAK MEN SYPHILIS
SEXUALLY. cured for life.
Nlsht Emissions , Lost Manhood , Hv-
flrorele , Verlcoccle , Gonorrhea , Glf rt , Syph
ilis , Str ! < ture , I'llM. Fistula and Rectal
Ulcers , DmbutPs. lirlghfa Disease cured.
CONSULTATION I'm : ! ; .
by new method without pain or cutting.
Call on or addnsa with stamp. Treatment
by mall.
JSEARIB.
cretlons , 'Jlir'j tiuirl.iy ani lurtlu
rettoro I/Ht \ llallty in om oryounff. ana
'it n naufopBtudr , liaslnntuur mr.rriaiio.
. , _ . i're nt Imanlty ouil Ooimumiitlon If
Ultra mtiiun. TliolrtiMi tlmwa iniocitl to Imtrovo.
roontnnd rOoctB u I'UHP. nliam all ntlior fall In.
{ 1st upon bating tlio crvalna Mat 1'olilotn. Tlier
Itnrocuroil tliOUBaadaaml irUleurcyott.Vorlv0 a ix > 9.
ItiTi/rrrittoaunnrunl'vi toi-Hwt arum KU f YP In
each caw or refund I ha moanj. 1'ricoOU U I Oir ,
imckaKii ) or lx i > k < s * ( full tniatment ) for rUO. llr
mail , la plain wi pi r. m in ricdr-t of prlro. I Irrnlar
AJAX REAIEDY CO. , VIV8S"
For sal'In Omaha , Neb. , by Jn. b'urnylh ,
Zti ( N. 1'lth. ' Kulm At Co. , 15th und Douglas ;
In CUUIK 11 liluffb by O. JI. lirown , Drug'st.
CURE YOURSELF !
( ' < > His ii { 'it iiiinalniul
irrnatlutm' uii .Tutinnj
of in n i HUH nn ; nljrju'- .
I iunlt"4 , nn < l not u tnu *
nr Rent u > plain uriirr'r *
l > y currroi , prrpuirt , lor
tl iv , or 1 l.ouli-n. t. " >
Circuur i'-nt uu rcjuttt.
TN'hen one IB away at college a good
newspaper is better than a letter from
homo.
To
Men
and
Women
we will send the Sunday Dee from
now to Juno 20 , 1S99 , for $ l.EO. The
Dally npd Sunday IJeo costs only J2.00
for three months.
Have the Bee
Mailed You.
Address Circulation Department ,
Omaha Dec.
use Use
Woodbury's Woodbury's
Facial Soap Facial Cream
Tinromi'le.Moi illly und permanent ! )
rlearcd of blotch'x , llvr spots , moth , tan ,
frec'kles und the Hl < ln ii'iulered Soft , smooth
und whltu by JOHN II \ \ ( lODHl'UV. jci :
State Hi , rhluiKO , nnd HOs Chemical HldK
St Louis. Hrnd 10 tr-ntu for llcauty Hook ,
and receive simple em | i of boup itnti
cream , fret ,