WANTS SO FURTHER DELAY
Judg Baxter Announces Determination to
Begin Mi.ltr Trial Monday.
LAWYERS SEM TO PLAY FOR MORE TIME
Defendant's Conns! Objerta to Method
at Drawl: special Venire of
' Jirori, bat Conrt Says
Trial Will Proceed.
Judge Baxter of tie criminal branch' of
the dlitrlct .court had a conversation yes
terday with Attorneys Ed P. Bmlth and
Kelson C. Pratt which was earnest almost
to the extent of being heated.
It roncerned the special venire drawn for
the trial of Alonzo V. Miller of the South
Omaha school board on a charge of bribery.
After tho convcraatton ended Judge Baiter
aid Very positively:
"I announce that the trial will proceed
at the designated hour next Monday unless
obstacles Insuperable are raised."
Attorney Pratt, after that, hastened to
aay: "We are Just as anxious as anybody
to have the case come to trial and I have
no other Idea than that It will, Monday. I
don't think there will be any objection
raised to that panel."
However, It was not Mr. Pratt who
seemed most inclined- to pick flaws thla
morning. It was Mr. 8inlth, and he
grounded his. objection on the method of
drawing the venire. He told the Judge that
Instead of drawing forty names from the
box last week and requiring the men to ap
pear Monday, tbey should have twenty days
notice or else the sheriff should be sent out
to gather In forty men from the body of the
county.
"Well," said the Judge very promptly,
"If you want, a panel secured In the latter
fashion, you can have it. Ws can arrange
that right away."
But Attorney Smith then appeared less
eager and permitted the matter to drop
without definitely committing himself.
Throws Oat a Hemlnder.
Judge Baxter also reminded Pratt that
last Wednesday, while Smith was engaged
In another court, he (Pratt) bad said: "You
may as well go ahead and draw a special
venlre. It will have to be done sooner or
later anyhow as you have not Jurors enough
now," and tfiat he had Indicated nothing
but approvali when the judge made In his
docket the fallowing minutes: "December
4: Defendant In court. By consent of par
ties cause parsed and set for trial Decem
ber 29, 1902 . at 9:30 a. m., and a special
venire of forty Jurors is ordered drawn from
Jury box to report here at said time."
This initial! case against Miller has been
in district court seven times already with
out coming to trial. November 18 he was
arraigned after proceedings In county court
and pleaded not guilty. December 8 he de
manded that .notice be given before names
of additional witnesses be endorsed upon
the Information. December 10 the continu
ance until December 22 was taken. Decem
ber 13 he was given leave to withdraw his
plea of not guilty and to file a motion to
quash. December 15 his motion to quash
the Information. because Indefinite was sus
tained. December 20 he demurred to the
state's reply and objected to being re
quired to plead, such objection being over
ruled, whereupon he pleaded not guilty and
the trial was set for December 28. On that
day Counsel Smith was busy with another
case and on the day following the special
venire entry above referred to was made.
does Mot like hiTbargain
CL .JJt.DJela Vovldlkato Gt Out
' of Supplying; Coal to
Cennty. "
C. N. Diets of the coal company bearing
bis same has offered the commissioners of
Douglas county a profit of 2.60 per ton on
184 tons of hard coal and been turned down.
The commissioners bought 300 tons at 812.50
per ton from Mr. Diets and he delivered
118 tons. He wished either to cancel the
contract, allowing the commissioners $15
per remaining ton, or else the commission
ers to pay for the same In advance. Mr.
Diets and Mr. Connolly had quite a spirited
controversy over the matter last Wednes
day, but Is yet nothing has come of It.
It Is said that Mr. Diets Interpreted the
contract to mean that all coal was to be
paid for as soon ss delivered and that when
be discovered that payment of warrants
earlier than next July la Improbable he de
sired to break the agreement, arguing
further that the raids on the sheds at St.
Paul indicate to what extremity the public
may go in a cold snap.
JUDGE EXPLAINS. HIS RULING
Gives Additional Reason for Holding?
Amended Tenant Uw .laces
atltntlanal. Judge Slabaugh's ruling of , last Wednes
day, In the case of Pusey against . the
Presbyterian Hospital association, that the
amended forcible entry and detainer law
of Nebraska is void because unconstitu
tional, has become a general topic of dis
cussion among lawyers, as the law Is in
volved In a large number of cases yet to
be tried and the 'Judge yenterday, for
Gives point to the fact that excessive or
irregular eating disturb the digestion.
Nightmare ur m&ht hag Las it's day time
correspondence in the uudue fullness
after eatuijf, with the belcUitip and sour
or bitter rising eo often experienced after
too hasty or too hearty eating.
Dr. Pierce's Golden Medical Discovery
cures dyspepsia ami ether diseases of the
stomach aud its allied organs of diges
tion and nutrition. When these diseases
are rured.'the whole body shares in the
Increased strength derived from food
properly digested sod perfectly eaainnl-
your 'Golden Medical Discovery' and Dr.
fiacrW Catarrh Reratdy have been ot great
benefit to nit writes I Prof ) Pleasant A. Oliver,
- iola. Fulton Co.. Ark. Betare I used lb
ar.'ve mentioned remedies my sleep waa not
sound; dotation bad: a continued feeling of
misery. 1 now feel like s new man. Any one
iu tared of medical treatment nr naaal catarrh
cunktl do no belter than to take treatment of
lr It V. Fierce. I kuow hts medtctacs are all
right iu this cbua of disease.
Sometimes a dealer tempted by the
little more profit paid on the sale of less
meritorious medicines will offer the cus
tomer a substitute as being "just as
?;ood" as the " Ihscovery." It is better
or him because it pays better, but it is
not as good for you, if you want the
medicine that has cured others, and
which vou believe will curt you.
Dr. Pierce's Pleasant Pellets cleans
the dogged, system from accumulated
UuBuriUea. '' "' -
the further enlightenment of some who did
not understand the ruling, made the ex
planation that the amended law Is uncon
tltutlonsl because the amendment Is not
germaln to the section which It is Intended
to amend. The original section read:
"Judgments shall be not a bar to any after
anion brought by either party," whereas
the amendment of 1875 read: "A tenant
shall be deemed holding over whenever be
has failed to pay his rent."
KNIVES FLASH ON v TRAIN
Illinois Miners Flaht In Cars on Alton
and dls Are Badly
Cat.
SPRING FIELD, III., Dec. 28. In a fight
on a Chicago Alton southbound train
leaving here tonight. In which fifteen coal
miners from Auburn snd Pawnee were the
combatants, half a dozen were badly cut
with knives.
J. H. Hsvlln, a miner from Oreenrldge,
who was attacked by the others, was
brought here suffering from a dozen cuts,
and his recovery is doubtful. Havlln made
a hard fight and Inflicted serious Injuries
upon a number of his assailants.
Passengers were terrified, and when the
train was stopped a number of persons left
It between stations.
Congressman Bardwell and the superin
tendent of public instruction were among
the unwilling witnesses to the fight.
ADD BANKERS TO BOARD
Consolidated Lake Bnperlor Directors
Resign tn Favor of
Financiers.
PHILADELPHIA. Deo. 26. The directors
of the Consolidated Lake Superior com
pany met today to consider changes In the
organization necessitated by the recent
loan. In order to make room for repre
sentatives of the banking syndicate W. S.
Douglas, W. P. Douglas, Edward C. Lee and
James Butterworth resigned and their
place were filled by Charles McDonald and
Charles H. Tweed of Speyer It Co., New
York; Horatio O. Lloy4, president, and
Thomas Dewlll Cuyler, vice president ot
the Commercial Trust company ot this city.
Joseph S. Swarts was elected vies presi
dent to succeed E. C. Lee.
FITZSIMMONS WINS FIGHT
Knocks Oat Mike Rnnke, Montana
' Heavyweight, in Second
Ronnd.
BOZEMAN, Mont., Dee. J8. Robert
Fltzslmmons knocked out Mike Ranke, the
heavyweight fighter of eastern Montana, fif
teen seconds after the gong had sounded
for the second round. Ranke went down
before a heavy Jab on the Jaw.
Jeffries did not appear. It is underetood(
he will train before meeting anyone again
with a forfeit up.
WOOD GOING TO KANSAS
General Accepts Invitation to Dine
with Clnb at Emporia Next
Month.
EMPORIA, Kan., Dec. 26. General Leon
ard Wood has accepted an Invitation of the
Kansas Day club to respond to a toast at
Its banquet on January 29. ;
General Funston and Galusha Grow will
also probably be present.
JOHN GREGG, HERO.
Boy Who Will Get There Whether He
"Fires" or Goes to College.
John . Gregg, 14 years old, of Prtnclplo,
Md.. thinks he would sooner be a locomo
tive fireman than to have a college educa
tion. He can be the one or enjoy the ad
vantages of the other, reports the New York
Sun, for the Pennsylvania Railroad com
pany stands hat in hand (although corpora
tions have no souls) to give John his choice.
The explanation is thnt the boy saved the
Colonial express from plunging Into a wash
out the other dsy, and the company wishes
to do the handsome thing In recognition ot
John's presence of mind. He discovered the
danger as the rails began to tremble under
the pounding of the great express, for It
wss flying along at the rate of sixty miles
an hour with its precious freight of human
lives. John was only a barefoot boy with
face' ot tan (to borrow from the late Mr.
Whlttier), but he rose to the occasion, tors
oft his coat. Jumped to the middle of the
track and waved bis tatters with 'frantic
energy as a signal to the engineer to stop
his trsln. .Before It cams to a. standstill
John had slipped down the embankment
and disappeared. But that boy must be
found, for he hsd not only saved human
life, but he had rendered the railroad com
pany an inestimable service. John was
bunted up and the benefits of the college
education, which the corporation proposed
to glv him, were pressed upon him. He
was puzzled, and filtered out: "I guess I'd
rather be a fireman than anything.".
Boys of John Gregg's sge prefer the
strenuous and spectacular lite to the aca
demic. No youngster of 14 wsnts to be
anything else when he grows up but the
pilot ot a ferryboat, the man at the throt
tle of a leviathan locomotive or the fierce
soldier In khaki alert to fight the battles of
bis country John Cregg can see nothing
worth while in a humdrum college course
snd a foolish degree at the end of It. For
him, the fireman, his sooty fscs a badge of
honor, heaving coal Into the roaring furnace
under the boiler. John wants to be tn em
ployment where something is doing all the
time something that will make him the
envy of the rising generation. But It would
be wicked to turn his day dream to account
or Interrupt It rudely, so the soulless cor
poration has given the boy a year to think
it over hoping that before the year expires
John will wake up ani decide tor the col
lege education. If his family had put a
money valuation on his heroism, the com
pany could have liquidated the Indebtedness
by the parsimonious scratch of the pen, but
It recognizes in John Gregg the stuff of
which are made strong men, such as a great
railroad wants la Its service. Be sure that
it the boy accepts the college education
there will be a place for him on the staff
ot the Pennsylvania Railroad company when
he graduates.
lasnr-anre Merger Abandoned.
NEWARK. N. J., Dec. 28. President Dry
den of the Prudential Life Insursnce com
pany ot America Issued a statement today
announcing that ths plan proposed for the
merger of the Prudential company and the
Fidelity Trust company ot Newark had been
abandoned. . ;
Killed In Saloon Brawl.
THREE LAKES. Wis., Dee. 16. During a
qurml in a' saloon Frank Schmidt shot
George Vilan In the stomach, fatally wound
ing him. Vilan. It Is said, was Intoxicated
and assaulted Bchmidt snd came back. It Is
alleged, for a second attack, when the
shooting occurred.
C able Makes a Change.
NEW YORK. Dec 8C-R R. Cable, for
many years chairman of the Rock inland
board of directors, ha reatnd that posi
tion and bten elected chairman of ths
executive committee. D. . Held has been
elected chairman of the twiard of directors.
Mr Cable has Ions; Desired to lighten his
work and tne change, a as made, at his re
quest, lie u now J9 years of age.
FOLLY LEADS TO MASSACRE
Ann all of a Border Tragedy Recalled bj a
Frontiersman-
BLOODY CHAPTER IN WESTERN HISTORY
Ahaard Demand of an Officer Provokes
Indian Hostilities Seeond-Hand
Details of the Horrible
Affair.
Those who are familiar with the history
of the great west have more than once had
occasion to regret the absence of any de
tailed and definite Information on the sub
ject of the massacre of Bouvee's ranch.
Students of the history of thst section ot
the republic hsve long suspected that at
the time of writing their works on the
western country, Mark Twain and other
writers were unable to secure sufficient In
formation In regard to this event to give It
more than passing mention, and this conclu
sion Is borne out In more ways than one, by
certain things that have occurred of late
years, and which have tended to throw
some light on the subject.
"You are quite right In what you say
about the lack of historical information on
the subject ot the massacre of Bouvee's
ranch," said an old frontiersman to a
Washington Post reporter. "It was an
event fully as Important as that of the Cus
ter massacre, yet for some reason which
students of American history have never
been able to divine, not one of the authori
ties on western history has ever been able
to tell the cause of the trouble, or to state
whether the Indians or the whites were in
the wrong. However, I hsve been more
fortunate In this respect than the general
run of Americans, for. In 1858, I had the
good fortune to learn the full and complete
details of the massacre, what caused It, to.
gellier with all other facts as to when and
how it originated.
"In 1858 I was stationed at Fort Brldger,
Wyoming, where I was a member of the
Tenth Infantry, forming part of the army
of General Albert Sydney Johnston, sent by
the government to chastise the Mormons
for the part they played In the Mountain
Meadow massacre of 1856. While there I
formed the acquaintance ot an old French
Canadian hnlfbreed, a trapper, of the name
of Pinto, and In the course of time became
quite friendly with him. One day I hap
pened to mention the Bouvee's ranch mas
sacre, which took place in 1854, the local
ity In question lying at no great distance
from Fort Laramie, . He replied that he was
on the spot at the time, that, he knew all
the facts tn regard to the matter, and that
If I cared to listen to him he would relate
the story of the massacre Just as it oc
curred.
Indians were Hungry.
"Early In 1854, be said, the Sioux,
Chcyennes and Arapahoea encamped at
Bouvee's awaiting the arrival of commis
sioners from Washington to pay them their
annuities and distribute rations. Tho win
ter preceding had been unusually severe,
and the Indians were hungry and on short
rations. While they were thus waiting, a
Mormon appeared on the scene In a wagon,
drawn by three oxen, which. In the west,
we used to call a spiked team, and the
Indians crowded about him eager to trade
ponlea for the extra ox. By means of their
sign language they offered him first one,
then two, and then as many ponies as he
liked, for the ox, but the Mormon was
obdurate and refused to part with the ani
mal at any price. Whereupon the Indians
took the ox by force, giving him to under
stand thst they would . repay - him several
times over as soon' as they received their
money from the commissioners and were
able to buy whatever they liked.
'But the Mormon was not only unusually
stupid, but unnecessarily pig-headed as
well, and instead ot relying on the honesty
of the redskins, who most assuredly would
have repaid the value of the ox several
times over, he went to Fort Laramie end
there laid the matter before Lieutenant
Grattan, who was then in command of the
small garrison at the fort, consisting of
some thirty men under arms, together with
about twenty others employed in divers
capacities other than that of soldiers.
'Now, if anything Orattan was twice as
stupid as the Mormon, snd worse still, was
a confirmed sot, one of a class of officers
who In the history ot American and Eng
lish colonization hava been the cause of
more wars with the savage and aboriginal
races than all other things combined.
With that Dutch courage which a man feels
when under the Influence of liquor, he or
dered out his small garrison, and taking the
two twelve-pounders, the only artillery at
the fort, marched down to Bouvee's ranch
to bring the Indians to terms.
'Ho bad as an Interpreter a half-breed,
and through him he called npon the chief of
the Sioux, a very old and gray haired man,
tor an explanation of the affair with the
Mormon. Mind you, this was going on In
a camp of 3,000 Indians. The chief told him
that the Indians were very much distressed
for want of food; that they offered the
Mormon all the ponies he could drive away
for the one ox, and that on bis having re
fused to trade, they had taken ths animal
by force, but stood resdy to make good the
loss as soon as they received their money
from the commissioners. He had barely
finished when Grattan, between hiccoughs,
said:
" "There, that'll do; we've heard enough
out ot you. Now, old man, you trot that
ox out here purty d 4 quick, or I'll turn
my artillery loose on you.'
"The chief replied that such a thing was
Impossible, as the ox had ' been killed,
cooked and eaten some time before, but his
reply, made no effect on Grattan. Finally,
the matter became so ridiculous that the
chief laughed In Grattan's face, whereupon
the Utter drew bis pistol and shot htm
dead. Then he gave the order to fire, but
before the report of the thirty rifles haJ
died away the 8,000 Indians were upon
Grattan and his command, and in a few mo
ments all had been killed.
"The Interpreter made his escspe, but was
captured, brought back and flayed alive.
The India La had an Idea that be was re
sponsible for the whole trouble, as they
were unable to believe that any man could
be so foolish ss to Insist on another pro
ducing an animal when he knew that it
bad been killed sod eaten. Every member
ot the command was killed except a little
drummer boy, who In fleeing from the In
dians stumbled and fell. A squaw, to whom
time and again he had given food at the
fort, fell upon htm and tried to protect
and save his life. In return for the kind
ness sbs had receled at his hands, but
ths Indians dragged her away, killed the
boy and compelled the squsw to eat Grat
tan's heart as a punishment for having
tried to shield one ot ths whites.
"Well, instead of waiting for the com
missioners, ths Indians went on the war
path, and did considerable damage until
finally beaten by1 a force of government
troops sent ' against tbem from' 'Brldger.
They could Just as well have taken Fort
Laramie, but the company surgion, Dr.
Snyder, dressed ths chambermaids, house
keepers and laundresses of the fort up In
soldiers' clothing, armed them and made
them perform guard duty during the day,
while the few men left at the post went
on as pickets during the night. In this
wsy Ls fooled the Indians Into thinking
that the fort was heavily garrisoned, and
thus saved It from falling lots their hands.
"When steps wers taken to reward him
he said that all he desired was as extra
allowance of whisky, which, ot course, was
the
illustrated
BEE
RIGHT AFTER CHRISTMAS
r mes The llHif-trmed Bee. the
brightest and best regular visitor
known to thousands of homes. It al
ways has something new, something
frpsh, something timely, entertaining
and Instructive for Its readers. The
number which will be out on Sunday
next Is no exception to The Bee's es
tablished custom. It will contain apo
dal articles and Illustrations on the
following topics:
QE0RGE BRUCE C0RTELY0U, secre
tary 'orreoldeni H xeveU. who
Is mentioned in connection with ths
new cabinet position, secretary for
com-nerce. has been prominent in
many respects for several years and
yet little Is known of the real man.
His picture Is .used for a frontispiece
and a sketch of his csreer accom
panies it.
WING SHOOTING IN THE SOUTH ls the
title of a copyright article bv
Martha McCulloch Williams. Mrs.
Williams ls one of the best known of
American writers, and her sketches
of southern life have often charmed
the readers of magazines and tbe bet
ter grade of newspapers. In this
article she discourses on a topic with
which she Is thoroughly familiar and
does it most entertainingly,
DAILY LIFE IN MEXICO is an article
contributed bv Cora Chaffee Bab
cock, a former Omaha woman, who ls
now living in tho City of Mexico. She
tells of some features ot domestic ex
istence In the southern capital, with
which tourists do not come in con-
tact. It Is Illustrated from photo
graphs taken In the City ot Mexico.
QALESTHEMCS AT THE HIGH SCHOOL
1 a full pajreof pictures mado bv
The Bee's staff photographer at the
Omaha High school. The girls who
take the physical culture course are
: shown In various attitudes -of their
class work. The groups will be found
most Interesting to patrons ot the
school.
AMERICAN SHOES were found tramp
ing all over Europe bv Mr.
Frank O. Carpenter. His experience
In Belgium leads him to write a chap
ter on shoe leather, and the result Is
one of his most entertaining letters.
Illustrations are from photographs
made In Belgium.
LUXURY IN MODERN DWELLINGS tells
of the many things that are be
ing introduced by builders for the
convenience and comfort of people
who live In bouses. Some novel and
Ingenious appliances are described.
INDEPENDENT AND INBIVIIUAL plct- v
tires are many and of a srt that ?
will attract attention. No department
has been omitted or slighted, and the
number will be found, up - to the
standard. If you are not now a sub
scriber you should loave your order
with your newsdealer today.
THE
ILLLUSTRATED
BEE
cheerfully granted. Thus, the story got out,
which has been repeated time and again In
army circles with all manner ot elabora
tions and embellishments, that for having
saved Fort Laramie the government allowed
Snyder a drink for each and every star In
the flag every day In the week, except
Sunday, when he got a drink not only tor
every star, but every stripe in the Amer
ican flag as well."
SUPREME COURT SYLLABI
12368. Woodward against Kavan. Appeal
front Douglas. Affirmed. Duffle, C, divi
sion No. 8. Unreported.
12389. Relss against Argubrlght. Appeal
from Lancaster. Affirmed. Pound, C, divi
sion No. 2. Unreported.
12244. 8trahnka against Kelttle. Error
from Dixon. Judgment. Ames, C-, division
No. 8.
1. Persons engaged In selling Intoxicating
liquors under license obtained pursuant to
the laws of this state are not liable for
damages resulting from a like traffic before
they engaged In the business, and they
cannot l Joined In, an action against other
persons to recover for such previously In
Dieted damages, although they may be
liable to the same plaintiff for subsequent
wrongs of a similar kind.
8. Persons engaged in selling intoxicating
liquors under licenses obtained pursuant to
tho laws of this state are liable in damages
fur all the legitimate and proximate conse
quences of their traffic, and if they have
Induced habitual drunkenness in a previ
ously sober and industrious man they are
liable for a consequent thriftless and dissi
pated career, followed uy him, after they
have ceased to furnish him with liquors.
12344. Miles agulnat Walker. Krror from
Frontier. Affirmed. Hastings, C, division
No. 1,
1. Where a statement of a party to his
attorney before Instituting a criminal prose
cution Included a statement of facts claimed
to nave been personally known to tho
prosecuting witness, a jury which decides
that such statement of facta waa untrue
was Justified in holding the attorney's ad- j
vice given witn reierence to sucn state
ment to be no defense.
8. In an action for malicious prosecution
the facts as to whethee or not the accused
person was guilty of other offenses similar
in character to the one charged Iu the com
plaint against him is Immaterial.
8. An Instruction which submits to the
Jury as an Issue In the case, a question of
fact, which Is admitted by the pleadings is
properly reiuaed.
i. An instruction which Cofinea malice
substantially in the terms approved in the
case of Tucker against Cannon, 82 Neb.,
id, Is not erruiit-oua fur that reason.
6. Telling the Jury to constitute probable
cause, there must be enough, facts and cir
cumstances to warrant - "a cautious man
in believing the accused guilty," is not re
versible errot where defendant himself has
aHked to have the question of the existence
of probable cause submitted to the Jury.
. Huiniiff a discharge by an examining
magistrate is admissible in evidence as
tending to show want ot probable cauae for
the criminal complaint against him.
7. Malicious prosecution Is an attack upon
reputation and plaintiff tn an action for
it. if successful, is entitled to recover his
damages from that cause.
a. A court reporter's evidence, in which
he swears from his notes to previous state
ments of a witness, should not be stricken
out merely because ttie reporter admiu on
cross-examination that he has no recollec
tion Indeiiendenl of his notes.
I hicago House recking Company
against Btewart Lumber Company, trror
from Douglas. Affirmed. Ames, C, dlv
alon No. I.
1. When, in an action for damages for an
alleged breach of a contract, a party re
quests of ths court, alternatively, two In
consistent instructions, with respect to the
Interpretation of the agreement, and an
example of what would constitute a breach
then of, and the court accepts and gives
one of sueb requests and refugee the other,
such party cannot complain that the court
erred la making the refusal. U) such cou-
duet the rmrtv has said to the court. In ef.
feet, that he will be satisfied with either of
such requests and will abide by the choice
which the court shall mnke of them.
2. When. In an action for damages for the
Biiegen nresrn or a contract, the prtltlon
mlrreoltes the s (freemen t in an Important
particular, out tne answer gives a true re
cital thereof, which Is accepted by the
plaintiff as correct, and the action pro
ceeds to trial and Judgment In all respects
as an action upon the contract set out In
the answer, so that it Is apparent that the
defendant has not been misled, the variance
petween tne petition snd the proof should
under section 13 of the code, be treated as
immaterial.
3. lr. such a erne as mentioned In the
last foregoing paragraph. If the court has
given to the Jury the correct rule of dam
ages for the alleg-ed breach of the contract
set forth In the answer It is not error pre
judicial to the defendant. If he afterward
instructs them what is the measure of
oamngos lor a -breach of a contract ut.
stantlally such as la set out In the petition
If the measure so clven is also eonallv an.
pllcable to the like breach of the contract
as recited in tne answer.
12ST4. Brooks against Stanley. Error from
Pawson. Reversed. Duffle, C, division
No. 3.
"Where, on a line of the same aurvev anil
between remote corners, the whole length of
wnicn is iounn to oe virunit iroin the
length called for, iv Is not to be pre
sumed that fhe variance was caused from
a defective survey of any part, but it must
be presumed, In the abxence of circum
stances showing the contrary, that It aro?e
from Imperfect measurement of the whole
line, and such variance must be distributed
between the several subdivisions of the
line In proportion to their respective
lensths."
124 6. Crum against Ji hnson. Error from
Douglas county. Affirmed. Loblngler, C,
division No. 1. Unreported.
1 An action on an appeal bond Is gov
erned exclusively bv section 14 nf the cods
and not barred until after ten years.
8. Where different sections of the statute
of limitations are equally applicable, the
one allowing the longer period governs.
1241b. Klllott nft-alnsr Elllntr Krrnr from
Burt county. Affirmed. Hastings, C, divi
sion No. 1. Unreported.
1. Section 833 of the Code prevents the
giving in evidence by a lawyer, only of
confidential communications properly en
trusted to him in his conildentlal capacity.
2. Communications not confidential In
their character, and whose proof ls neces
sary to effectuate the Instrument, In pre
paring which the attorney was engaged,
are not objectionable on this ground.
3. Evidence In this case examined and
held to sufficiently show that the will In
question was signed by the draftsman. In
The testator's presence, at his previously
made request.
4 Evidence examined and held to warrant
the instruction given by the trial court that
there waa no evidence of mental Inca
pacity on the part of the testator or of
undue Influence on that of the beneficiaries
of the will.
12SS2. Commercial State Bank, Crawford,
against Ketchum. Appeal from Dawes
county, judgment. Albert, C, division No.
8. Unreported.'
1. Where - the defendants appeal from
decree. In favor of the plaintiffs allow
ing an injunction, which Is contingent on
the doing of certain acts by 'the plaintiff,
and the decree is affirmed In this court,
such decree Is conclusive on the parties, as
to all matters thereby adjudicated on an
appeal from -a - subsequent order In the
same faee,' ,
2. Where, In the absence of the district
Judge and of the Judges of the supreme
court, a petition for an injunction Is pre
sented to the county Judge, and a tempo
rary injunction allowed by him, and the
petition and order of the county Judge
forthwith filed In the district court, the In
junction is not void on the ground that the
order therefor was made before the action
was commenced.
8. Where, on a motion to make a decree
absolute which was contingent on the pay
ment, by the plaintiff of a certain sum and
the costs In a certain aetlon. it appeared
that the plaintiff had complied with the
decree on his part, save that, through over
sight, he had omitted to pay a small item of
costs, which he thereupon tendered, the
tender should have been accepted, and the
rule granted.
4. Evldenco examined 1 and held not to
sustain the finding that the defendants
were unable to comply with the terms of
the decree.
No. 1&JS6. Green against Diesel. Error
from Douglas. Affirmed. Oldham, C, di
vision No. 2.
A rule of the district court requiring pur
chasers at a sheriff's or master's sale to
deposit 850 with the sheriff or master as a
guarantee of good faith In their purchase,
examined and held reasonable.
No. 12394. Harte against Relchenburr.
Error from . Douglas county. Affirmed.
Hastings, C, division. No. 1. Unreported.
1. The word "transaction" as used in sec
tion 329 of the Code of Civil Procedure, em
braces every variety of affairs the subject
of negotiations, actions or contracts be
tween parties. Bmlth against l'erry, 62
Neb., 738.
2. The contents of letters and telegrams
which pass between parties In the course
of a business transaction, not otherwise
Identified than by a witness, who has a di
rect legal interest in the result of the suit,
are not competent evidence as againxt the
personal representative of a deceased per
son. No. 12401. First National Bank, Chadron,
against Hughea. Error from Dawes county.
Affirmed. Ames, C, division No. 8. Unre
ported. 1. A man' owning a herd of 200 cows and
143 calves, executed a mortgage containing
tbe following descriptions: "Two hundred
(206) head of native cows, in ages from 8 to
7 years, some branded L and others 8H;
also with 100 head of above mortgaged cows
are included in this mortgage 100 head of '
their calves, which are to be branded SH
The above described chattels are now in
my possession on," etc. Held that this de
scription was so indefinite as to be void
against subsequent purchasers of a part of
me nera 01 caives, wiuioui
tual notice
of the instrument.
2. When chattels are taken under a writ
of replevin from the possession of a person
no.t party. defendant to the action he is
entitled, on moUon, to be admitted to de-
1;....,. V.-.k- ..XhiV r .. 10 lno
statute on the subject of intervention.
8. In replevin the plaintiff must recover
If at all, upon the strength of his own title
and not because of the weakness of that
of his adversary. '
12398. South Omaha against Hager. Error
from Douglas. Reversed. Oldham, C. divi
sion No. 2.
Where an instruction assumes to define
the whole law ot the case and omits a ma
terial element from the definition iven, it
ls reversible error which may be relied
upon, although no proper Instruction has
been requested by the party seeking to
take advantage of the detect.
123.8. Jayt.e against Hyner. Appeal from
Phelps. Affirmed. Barnes, C, division
No. 2. '
1. In order to maintain a creditor's suit
against a wife to set aside a conveyance of
real property made to her by a third per
son, plaintiff must allege , and prove that
the relation of cred'tor and debtor existed
between himself and the husnand at the
time such conveyance was executed, or that
It was executed fraudulently with the ex
pectation on the part of the hueband that
he would become Indebted to the plaintiff,
and to prevent, hinder and delay Mm In
the collection of such debt when con
tracted 2. Held, that the finding that thd wife was
the bona tide owner of the property in
question, that It was conveyed to her in
payment for money sdvanced bv her to
her husband, the proceeds of which had
been UBed In the purchase of the property
which was the consideration for he con
veyance, was sustained by the evidence.
3. An action In the nature of a creditor's
bill cannot be maintained to set aside the
conveyance of property which is exempt to
the defendant as a homestead.
123U9. South Omaha against Wrxesinsk!.
Error from Douglas. Affirmed. Burnoa r1
division No 2. Pound, C, concurring;.
1. An instruction which In sddltion to a
correct statement of the law contains an
assumption or the existence of a material 1
fact upon which there was no evidence 1
offered or received snd directs the attention
of the Jury to and unduly emphasizes a
part of the evidence should be refused
2. An Instruction which submits an Issue
to the Jury not raised by the pleadings or
supported by the evidence is erroneous and
was properly reiusea.
3. Where K appeurs thst it was
the
custom or
a city clerk to make no rnr.i 1
of claims presented to him for damaa.-a '
afid'ac.hnr-.ni V V "j '"1 Affiled" DuffiC. dTvT.Io, YkS. 3 U re
and place them in a receptacle kept for ' ported.
.".r .v.-..-- """ne action or tne
ouncll. that an orlalnal claim ma fll...i
lost and could not be produced, secondary
evidence may be received to eatabliah tha
facts relating to the tiling thereof.
4 In such a case the recorded proceedings
of the city council, reciting that such claim
was before that body for consideration
about the time It was alleged to have been
tiled, may be read In evidence for the pur
pose of showing that a claim was In fact
Bled.
6. Where the evidence disclosed that the
plaint ff's attorney had mailed a claim to
the city clerk, that It was lost, that hi
bad kept a carbon copy of It which he pro
duced and prorly identified, the court riM
not err In allowing such copy to be read to
the jury to prove that the claim. In form
and substance, compiled with the require
ments of the law
6. Where the person wno was the city
clerk at the time the claim waa mailed to
him was no longer In ottlct and Is beyond
the jurisdiction of the court, a letter writ.
ten by him to plaintiff s attorney at or 1
near me ume urn rrueivea mi claim, n
which he certifies under his hand and the
seal of his office that he received snd Ale.1
It on a data named therein, his signature
thereto being duly and properlv Identified
was wcperly received in evidence to eslab-
m " - Bsas.msaxaraasaBx8x
Boys don't care. They only think of today. It's the parents I
who must watch and worry. They know what exposure to the I
wet and cold means tender throats, sore lungs, hard coughs. F
That's why so many homes keep on hand i
Ayer's Cnerry Pectoral
Just a single dose, when the cold first comes on, is often
sufficient. Your own doctor will explain why this medicine is
so good for coughs of all kinds, for bronchitis, and even for
Consumption. Tsnsslissi ., tc, SI.. J. C AYEg CO., Urwtll, Mats.
.rjj "J? ,w1,"r' whJ ehn.r" po,d esslly. 1 always keep Ayert Cherry Pectoral on
Ilsh the date on which the claim was In fact
niea.
7. Evidence examined and held that tha
verdict was not excessive and was sus
tained by the evidence.
No. l:t.5. Kinney a (tains t IHttlnrer. Ap
peal from Kimball county. Affirmed. Has
tings, C, division No. 1. Unreported.
1. Affidavits lor continuance must be em
bodied In the bill of exceptions If the right
to a continuance la to be examined on Its
merits upon review.
1. An appeal in equity Is not a proceeding
to correct errors In tha exclusion of evi
dence.
The following opinions will not be offi
cially reported:
11069. ItelRs against Araubrleht. Error
from Lancaster. Affirmed. Pound, C, divi
sion io. t. . nreportea.
1. An answer that the defendant "states
and alleges that he denies each and every
allegation" of the petition ls a sufficient
general denial, though not in commendable
form. ,
2. An oral chattel mortgage Is good as be
tween the parties thereto, it ls Invalid only
as -to creditors and subsequent purchasers
In good faith
8. Creditor In thla connection means judg
ment, execution or attachment creditor; a
subsequent mortgagee with notice ls not so
regarded.
11771. Bankers Building and Loan associ
ation against Thomas. Appeal from Doug
las. Affirmed. Hastings, C, division No. 1.
Unreported
1. A disclaimer of all Interest in mort
gaged property prevents sny right to object
to a foreclosure decree, which establishes
no personal liability against the answering
parties
HHtJt). Bourke against Sommers. Appeal
from Buffalo. Affirmed. Day, C, division
No. 1. Unreported.
1. All objections to the appraisement of
Eroperty to be available . must be made
etore the sale.
3. In a notice ot sale of real estate under
a decree of foreclosure, while it Is proper
to state the amount of the decree, such
statement is not essential to the validity of
the notice. Stratton against Kelsdorph, 36
Neb., 814. followed.
3. In tne absence of a showing to the
contrary, the affidavit of the publisher, that
the newspaper was one nf general circula
tion In the county, is sufficient to establish
the fact that the newspaper was a legal
newspaper.
12173. Todd against City of Tork. Appeal
from Tork. Affirmed. Klrkpatrlck, C.,
division No. Unreported.
1. Where one discharges refuse or sewer
age Into a running stream, in such quanti
ties and in such a manner that the waters
therein become foul, polluted and contamin
ated, emitting noxious gases and odors, and
thereby endangering the health and en
joyment of those living along the bank ot
such stream, Interfering with the proper
and customary use of their property, equity
has power to restrain the acts from which
such consequences flow.
2. Where the evidence Is conflicting and
there la sufficient to support the finding of
the trial court the judgment will be af
firmed. 12204. State ex rel Johnson against Holm.
Error from Antelope. Reversed with In
structions. Albert, C, division No. 8. Un
reported. The discretion conferred on the courts by
section 623 of the Code is not an arbitrary,
but a legal one, to be exercised within the
limits of legal and equitable principle!).
Following Wallace against Sheldon, 66 Neb.,
(5.
12243. Martens against Plttock. Error
from Stanton. Affirmed. Barnes, C, divi
sion No. 2. Unreported.
1. A motion to strike out a matter of
rifnnA f-nn t q InpH In an jan.nr, nlad In
the district court, for the alleged reason
that It was not in issue in the county
court where the case was first tried should
be overruled where It appears that such
matter was pleaded in the lower court and
s only set out more fully and In detail in
tne pleading to wnicn the motion ls dl
rected 11
2. Where parties have had verbal negotia
tions which have afterwards been reduced
to writing the written agreement will be
taken to control as their final determination
snd the parties will be bound thereby In
the absence ot fraud or mistake. But where
such written agreement ls pleaded In a
reply as a- matter of defense to the allega
tions contained In an answer evidence of
fraud or mistake in procuring such agree
ment will be received without further plead
ing. 3. Instruction complained of examined
and held that it was properly given.
4. An instruction which contains a correct
proposition of law, but In which a par
ticular portion of the evidence Is pointed
out. the attention of the Jury ls directed
to It. and its effect is unduly emphasized,
should not bs given.
12270. Western Land company against
Buckley. Appeal from Adams. Affirmed.
Klrkpatrlck. C, division No. 1. Unreported.
1. The holder of a tax lien ls not a neces
sary party to the foreclosure of a mortgage
dubacquunt in point of time to the tax lien,
where the right to foreclose the tax lien
has not yet accrued.
2. A party will not be barred of his rights
by the decree in an action to which he
was neither a necessary nor a proper party
defendant, and whose rights in such action
were not litigated or In fact determined.
3. Under the repeated decisions of this
court a party may bring his action to tore
close a tax lien upon property at any time
within five years from the end of the two
years within which the owner of the prop
erty has a right to redeem from the tax
sale.
12271. Curran against Hapeman. Error
from Greeley. Affirmed. Hastings, C, divi
sion No. 1. Unreported.
1. Where a motion has been sustained in
part and overruled In part the maker of It,
who has taken no exceptions, cannot com
pUlti of error In its overruling.
2. An objection of misjoinder of causes of
action and of parties defendant must be
taken before going to trial or the objection
will be deemed waived.
3 To authorize a review of errors occur
lng at a trlul a motion for new trial Is as
essential in an equity as it is in a law case
4 Petition examined und held to set forth
' sufficient facts tn show a cause of action in
! favor of plaintiffs and agxiiiMt defendant.
i---i t....,i a- '
r-UZ' t -u, ,a I
I t ompany axainst
1. Laches cannot usually bo charsed
against a party lor iaiung to bring an ac
tlon to enforce an oqullable claim If h
sets within the time allowed by the statute
of limitations for commencing a corre
sponding action at law.
2. One of several parties whose debt U se
cured by a trust deed may maintain an
action to foreclose the. same on behalf of
himself and the other parties Interested in
the security, and the court will distribute
the fund arising from a sale of the prop
erty amnnif thoae entitled ttiereto.
i. Where a mortgage Is made to eecjre
the debt of a third party it la a sufficient
compliance with sections Sou and 851 of tha
Code of Civil Procedure to allege and show
Figprune Cereal
A grain and fruit Coffee nourishing and invigorating.
OLD UY ALL GROCKHa.
Mbs. orma Krister. Brooklyn, N. T.
that Judgment has been obtained against
the party whose debt the m -tirngH was
made to secure, and thnt lh. sheriff has
made a return to an execution issued oil
such Judgment "no property found."
4. Where the creditors of a bank agree
to an extension of tinin of the payment of
their claims on the condition, among others,
that certain of the stockholders of the
bank shall secure the payment of such
clulms by tho execution of a trust deed to
real estate, the grantors in such deeds can
not by an agreement among thenwelves
and without the consent of the creditors
determine the order In which the trust
company shall be sold or compel the cred
itors to exhaust the properly ot ono before
that of another Is resorted to.
6. Where a trust deed Is made to secure
the payment of certificates of an insolvent
bank and contains a condition that upon
the payment of the sum of 810,000 to the
trustee the property shall be reconveyeil
to the grantor, the payment of such sum
to the trustee entitled the grantor to a re
conveyance, but the purchase by the gran
tor of debts owing by the bank, and espe
dally of debts of a class not secured by the
trust deed, does not release the truet estate
from liability.
6. One who purchases land with knowl
edge or notice that another holds a Hen
against the same to cure the payment of
a debt takes the Innd subject to such Hen,
although the same has not been recorded.
12294. Burke against Towkebury. Appeal
from Douglas. Affirmed. Albert, C. Divi
sion No. 3. Unreported.
1. In an action to subject real estate, the
title to which is held In trust, to the pay
ment of a Judgment against the cesult que
trust. It Is immaterial whether the ceaul
que trust was Insolvent or indebted to the
judgment creditor when the truet was
created.
2. Evidence examined and held sufficient
to sustain the decree ot the district court.
12343. Pelmer against Fidelity Mutual
Fire Insurance Company. Error from
Frontier. Affirmed. Ames, C. Division
No. 3. Unreported.
When tho plaintiff has rested his ense
without sufficient evidence to sustain a
verdict in hie favor the court should In
struct the tury to return a verdict for the
defendant.
123FI9. Mathleson against Omaha Street
Railway Company. Error from Douglas.
Affirmed. Ames, C. Division No. 8. Unre
ported. 1. A witness need not be an expert In
order to be permitted to give his opinion of
the rapidity of motion of familiar objects .
like railway trains and street cars, but ha
must be shown to have had, ami to have
availed himself of, an opportunity for ob-'
servatlon of the case in hand.
2. An ordinance regulating the speed of
electric street cars Ih immaterial In a case
In which It is not shown at what rate of
speed a car, alleged to have caused an in
jury, was. In fact, at the time moving.
12388. Jacques agnlnst Dawes. Error
from Lancaster. Affirmed. Loblngler, C.
Division No. 1. Unreported.
1. A petition in an action to recover tha
value of corn which sets forth the corre
spondence between the parties may be
open to the charge of pleading evidence,
but If the correspondence discloses that ths
price and terms of payment were communi
cated to the prospective seller, though no
particular corn was mentioned, the peti
tion Is not. on account of such omission,
objectionable as falling to state a cause of
action, if it also alleges the delivery of the
corn.
2. A purchaser of land at execution sale Is
entitled to all crops planted thereon after
confirmation.
8. One who has purchased corn reiving
upon the title of the seller, but who Is later
advised of the claims of a third party, may
protect himself in the event of suit on be
half of either claimant by filing an affi
davit In the nature of a bill of interpleader
provided for by section 48 of the code.
UCKV NUMBERS.
Seven sad Eleven Have Brought Far
tint to Senator Alsrer.
Senator Russell A. Alger of Michigan Is
not ordinarily a ausperstltious man, aays
the New Tork Bun, but he has a very ten
der spot In his heart for the numbers
"7-11," which have been connected in some
manner with almost every Important event
in his life, and in many minor matters be
sides. The manner In .which these two
"policy numbers" have pursued him through
lite was brought to light by a little Inci
dent which occurred slrce his arrival at
the Arlington hotel on November 27 as one
of a party of seven, when an express pack
age numbered 77-11, on which 77 cents was
due, was brought to him at. the hotel by
express wagon No. 7. The coincidence of
numbers became more marked .when It was
noticed that the express frauk held by the
senator was No. 7.
Mr. Alger did not seem at all surprised
when the matter was called to his atten
tion, and the following facts will show
why: He was born on February 27, 18.10,
both of his parents died hen he was 11
years old, and for seven years following, he
worked. on a farm. - He waa admitted to
the bar March 7, 1859, and the degree of
LL. D. was conferred on him by Hlllsdalo
college May 7. 18S5. He waa made colonel
of the Fifth Michigan cavalry on June '11,
1868; breveted brigadier general of volun
teers July 11, I860; appointed secretary of
war by President McKlnley, In 1897, and
made United States senator on September
27 of the present year.
To Inspect Paris Gas Plants. :
NEW YORK, Dec. 26. Semi-official an
nouncement was made today, that George
C. Knapp, president; Anthony N. Brady,,
vice president; and C. K. O. Billings,
chairman of the Board of Directors of the
Peoples' Oas company will soon sail tor.
Francs to inspect the gas industry In
Paris with a view to bringing about a'
merger ot the several gas companies In
tbst city.
Tells of Transferred Cash.
WASHINGTON, Dec. 26.-The United
States treasurer said today that so far
during December 81.446,000 in currency had
been transferred to New Orleans against
deposits in New York, 87oO,000 to San Fran
cisco and 81.3ti9.uOO to Chicago. These ttirre
are over 81 ftO") in-low those for lieceuilier
19u, and about $2,0u0,0iio below those for last
Dtcember.
t
