Omaha daily bee., 1888-01-06
swcr in the district. court of Cass county in


line county, and demanded Judgment for the
amount thereof, and which action is now
pending Held, a waiver of the error of the
district court Of Saline county and an aban.
donment OF his right TO prosecute error
thereupOn in this court.
Holland VS. Commercial Bank. Error from
Cass county. Reversed. Opinion by Cobb,
j. Maxwell, Ch. j., dissents from the iudg-
mcnt.
|. The written instrument presented in evil
dence by the plaintiff at the trial in the court
below, rs containing the articles of incorpo-
ration of the plaintiff in said action, though
certified by the secretary of state as copy,
contained intrinsic evidence of being the
original articles, the signature thereto of the
cOrpOrators being proved as genuine; held,
admissible in evidence
2. On the trial of the action, plaintiffs
books of account were introduced in evidence
and 1t was shown that a greater number of
the entries at specified dates were made by
and IN the handwriting of "a clerk in plaintiffs 5
employ who was neither called nor subpGned
to verify such entries, nor was his absence
accounted for; held, error aud new trial
granted
3. On the trial of a motion to discharge an
order of attachment to Judge at chambers,
there being evidence tending to prove the alb
sConding of defendant with intent to defraud
his creditors, and that he had left the county
of his residence TO avoid the service of sum
mons the same being grounds of attachment
the weight of the evidence not being clearly
against the finding and judgment of the judge
of said motion, the same is upheld.
Campbell VS. Holland Error from Sarpy
county. Affirmed. Opinion by Cobb, j.
!. The evidence tended to prove that the
plaintiff purchased a one-half interest in the
property in litigation at certain date, he
then being in possession as agent, and con
tinued in possession until a subsequent date
when he purchased the remaining one-half
interest tiUpS
OF both Of said purchases and sales. Held,
that the declarations of the vendor as to his
interest in ana ownership of said property,
made after said first purchase and sale, but
before the last one, were admissible in
evidence for the purpose of mpcaching
plaintiff s title, but that such declarations
made after the last purchase and sale, were
inadmissible.
g On an issue of fact as to whether an
assignment or transfer of property was made
to hinder, delay or defraud creditors, it is
competent where the assignor or vender is a
witness to inquire OF him whether in making
the assignment or transfer he intended to
delay or defraud his creditors. See Seymore
VS. Wilson, l5 n. Y. r., 561.
3. The same rule applies to cases where
the assignee or purchaser is called as wit
ness
L. On the trial defendants cross examined
the plaintiff us to certain crasureS in his ac-
count books and leaf of one of them which
IL
that the erasures had been made by himself
to correct errors, and the leaf torn out also
by himself because it had been accidentally
sOilcd and rendered unfit for use; defendants
afterwards offered said books in evidence,
which offer was refused Held, no error.
5. When upon the examination or cross
examination of witness a certain conversa-
ton is drawn from him in evidence the Oppo-
site party will always be permitted to cross
examine or re-eXamnc him for the purpose
nt oil li.ifi hnl nf gIish at inn
The scope of such examination is a question
peculiarly for the trial court.
o. The plaintiff being witness on his own
behalf was cross-examincd as to the source
from which he derived the money used in the
purchase of the property in litigation, and
having answered that a certain portion of it
had been received by him in payment of
loan previously made to his father, an at
tempt being made as well in his further cross
examination as otherwise, to diScredit his
statement in this behalf he was permitted to
testify in rebuital as to where he obtained
the funds out of which said loan was made:
Held, No error.
Z. The instructions given to a jury must be
construed together, and if when considered
as a whole they properly state the law, it is
sufficient. Bartling VS. Behrends, 20 Neb.,
21l.
8. When the law applicable to the pleadinGs
and evidence in case has already been fully
given by instructions to g jury by the court
on its own notion it is not error to refuse
further instructions.
o. Where, upon a notion for new trial
founded on af1idavts, all of the material facts
contained in such affidavits are contradicted
by affidBvitS in resistance, the Judgment of
the trial court in denying such motion will
ordinarily be upheld.
10. A new trial will not be granted on ac-
count of newly discovered evidence merely
cumulative in its character.
Towne vs. Sparks. Error from Cherry
county. Affirmed. Opinion by Cobb, j.
|. S. being merchant engaged in selling
goods and supplies T., w. Il. T., who was an
entire stranger to s., drove into the vicinity
of II, a large band of sheep; having no other
known property or means, he applied to $.
for credit for goods and supplies. S, for the
purpose of informing him as to the desirable
ness of r. as a credit customer, asked him
how many sheep he had. II. replied that he
had brought thirty odd hundred, that some of
them belonged to b. & r., and l,200 of them
We're his own, which he was going to run out
on his ranch. > gave II credit from that
time on for goods and supplies, for which a
Judgment was rendered and a part of said
sheep levied on. Thereupon II repevned the
sheep as the property of l., who had farmcd
the same TO him on shares for term of years.
Held, that Il is cstopped TO deny the truth of
the representation made by him to as to
the ownership OF the sheep, and that he can
not maintain rcplcvin therefor.
2. In an action of replevin: Held that evil
dence of matter in estoppel may be given and
availed of as a defense under Il general de-
nal and without being pleaded specially.
3. The evidence examined and held Suffl-
cient TO sustain the verdict.
4. The judgment of the county court upon
which the execution on which the levy was
| made was issued, having been for S490 Al
and costs, the amount of costs not being
shown in the record, nor the interest on the
judgment computed, the finding of $539.24 is
presumed to be correct.
5. Instructions complained Of examined and
upheld.
q. Testimony contained in deposition OBJ
jected to examined and sustained in part, and
as to the residue held not reversible error.
Warnel VS. Mcconnell. Error from Rich
ardson county. Affirmed. Opinion by
Reese, CHI j.
/. Persons licensed to sell Intoxicating
liquors. are jointly and severally liable for
all damages resulting from their traffic, and
actions may be maintained against them
jointly for all damages to which they have
contributed by the sale of liquors.
2. Principals and their suretes upon Ii
cense bonds are liable to an action for dam
| ages jointly with the principals and suretes
| upon other bonds of II like character, while
| all the principals have contributed to the
| same injury by the sale of Intoxicating liquors.
| 3. The sureties upon the bond of a licensed
| vendor of Intoxicating liquors are liable not
| only for the damages resulting directly from
| the acts of their principals, but for all dam
ages to which such acts contribute And
where during the existence of u license based
upon such bond, the principal sells intoxicat-
| L ~