Omaha daily bee., 1907-04-27

without any fault on the part of the com
plainant is sufficient to raise presump-
ton of negligence in the. management or
equipment of the engine.
2 In such case, however It is prejudi-
cial error to instruct the jury that, II the
evidence is evenly balanced on the question
of defendants negligence, they should find
a verdict for plaintiff.
1883. Ledwich against Embree. Appeal
from Custer Reversed and remanded. Ep-
person, c., Division No. /.
/. When a party who claims a lien on
real estate on account of detached interest
coupons, Is properly made party In an
action by another to foreclose the mort
gage and makes default therein, he is
barred from bringing an action to fore
close on his coupons, after foreclosure ana
sale in the former proceedings when the
petition therein sufficiently puts in issue the
1882 Cerny against Paxton & Gallagher.
Appeal from Dauglos. Reversed and re-
manded. Albert, c., Division No. 2
/. Petition examined and held to state
cause Of action for fraud and deceit.
2. Ordinarily, deceit to ground a recovery
must relate to existing facts, but II one
person, by means Of promise which he
makes with the secret intention of not
performing II, induces another to part with
his money or property he is guilty of &C
s. Where a creditor induces his debtor to
secure a debt by a mortgage on stock of
goods, on the faith Of his promise that he
will not permit a sale thereof under fore
closure at public auction below'a certain
price, and, that in. case such amount is not
bid, the creditor will bid in the stock and
dispose of the goods at private SALE ac-
counting to the debtor for the surplus after
the satisfaction Of the debt such promise
is not a collateral undertaking. but part
of the original consideration whereby the
debtor was induced to execute the mort
gage, and is not within section OF the
e. In an action for fraud and deceit.
! grounded on such promise, the creditor
having permitted the goods to be sold at
public auction below the price fixed the
. a NJ ha
termined by the position they would have
occupied had there been no fraud, and
| they are entitled 10 the benefit of their
bargain on that basis. Hence, the measure
of damages in such case Is the difference
between the price the goods brought as
! thus sold and the market value thereof.
| 1860 Steiner against State. Error, Ian,
caster Affirmed. Albert C., Division No. g.
| l. A plea In abatement in a criminal
] feet in the record shown by facts extrinsic
| thereto. Criminal Code, Sec. Al.
/ 2 Pleading examined and held not to con-
stitute a plea in abatement within the
meaning OF the statute
| s. Where a so-called plea in abatement
/ does not state facts sufheient TO consti-
/ OF any element OF the offense charged, a
I demurrer thereto is properly sustained.
! T. Municipal courts will take judicial no.
| tice OF the ordinances OF the city, and on
| an appeal therefrom to the district court
| ordinance, the latter court will upon a
/ trial de novo take notice OF Whatever facts
/ the former court was required to notice
| judicially before the removal Of the cause
/ Foley against State, ~ Neb., 2S3.
5. But a different rule prevails in this
/ court where such cases are not triable de
| novo, and such matters must be included
| In and made part OF the record pre-
! sented TO this court for review; otherwise
| the correctness OF the rulings OF the dis
! tTict court with respect thereto win be pre-
1854 oakdale H & L. Company against
| Oldham, c. Division No. l.
| l. It Is error for county court 20 enter
| final judgment against a defendant on the
i day OF his default.
| Q Proceedings IN error from a county
| court are governed by the statute providing
! for error proceedings from a Judgment OF
1 a Justice OF the peace.
| 1857. Wright against City Of Omaha APP
| neal. Douglas. Reversed and remanded.
| Dune, c., Division No. 2.
] J. The city Of Omaha. under its charter
| OF 1903 Is liable to the husband for cohss-
| duentisi damages suffered by him In con-
| sequence OF injuries 20 his wife caused
from defective street or sidewalk in the
Z Written notice 10 the city given by the
| wife and conforming to the provisions OF
Bee p, Chap. ia OF the charter. which mo-
/ tice by It's wording OF from the signature
thereto brings home 70 the city knowledge
that the injured party IL married woman
| whose husband may suffer consequential
damage arising from her injury, Is sum.
etent 70 enable the husband % maintain
l 4 WSsth.- a. husband may mAiutAiu