Jr., or through his financial agency, by said Wallace S. Smith, whether such securities now exist or are hereafter made; and is for the purpose of giving said Wallace S. Smith credit, and securing to him an opportunity to close up said last year's business, and collect himself said securities so sold for said Lombard, and giving said Smith in his business good standing, character, and credit, to enable him the better to conduct his business, and obtain sale of securities; and the surety guarantors hereby each severally waive notice from said B. Lombard, Jr., of the purchase or receipt by him from said Wallace S. Smith of securities, and of the description and amount, and the non-payment from time to time negotiated, except as they may especially request and inquire information thereof, "-I will repeat that the identity of the notes produced on trial as securities purchased or received by the plaintiff from said Wallace S. Smith within the time covered by the terms of said bond, and remaining unpaid, the aggregate amount thereof being within the limit expressed in said bond, to-wit, $5,000, was all the proof required in that behalf. But if I am wrong in the above proposition of law, and it were necessary that the execution of said notes be proved by the plaintiff, it would then become relevant to examine the plaintiff's fourth assignment of error, to-wit, the excluding of proper evidence offered by plaintiff.

On the trial the plaintiff offered in evidence the deposition of Wallace S. Smith, taken on his behalf, which was admitted. This deposition was taken at the penitentiary; the witness being there confined pursuant to a conviction and sentence for felony. The witness upon his examination in chief, among other things, testified being shown the several notes involved in the controversy, and which had been identified by the witness Charles West, as hereinbefore stated, as the securities purchased from Smith by the plaintiff, and as coming within the guaranty of the bond; and was interrogated as to whether he was acquainted with the signatures of the signers of the same, and whether or not the said notes were signed in his presence by the persons whose names appeared as the signers thereof. In each case the witness answered that the note was signed in his presence by the person whose name appeared as the maker thereof, that he was acquainted with such signature, and that it was genuine. Upon his cross-examination the witness was asked, as to each note which he had testified had been signed by the maker thereof, if it was signed and delivered by the said maker in the same condition in which it was at the time of testifying; to which question the plaintiff objected as "not being proper cross-examination, and for the further reason that the answer sought is intended to criminate the witness, and he has a right to object to it for that reason." Whereupon the witness, in each case, refused to answer. Upon the trial, and near the close thereof, the defendants moved to "strike out the deposition of W. S. Smith, as far as it affects the signatures and goes to show the execution of these notes offered in evidence, for the reason that the witness refuses to be cross-examined on the examination of the notes;" which motion was sustained as to all but the Cavin and Greenfield notes. Thereupon the plaintiff offered in evidence the several notes above referred to, to which offer the defendants objected to each of the said notes as "immaterial, incompetent, and irrelevant,-the signatures of each being denied, and not proven;" which objection was sustained as to each. Counsel for defendants in error in their brief urge, in defense of the above ruling of the trial court, that the witness, having testified upon his examination in chief that the signatures to the notes were genuine, thereby waived his privilege to refuse to answer the cross-question whether the notes, respectively, were, at the time the signatures were placed upon them, in the same condition that they were at the time of testifying, on the ground that his answer to the latter question might tend to criminate him. To this they cite Rap. Wit. 443; 1 Whart. Crim. Ev. § 432; Comp. St. 1885, § 339, p. 673. The author first named, at the page cited, states the law as follows: "The privilege being a purely personal one,

the witness may waive it, and answer at his peril. From the nature of the right it may be inferred that he will be at liberty to answer any question at his discretion, and that his consenting to answer some questions ought not to bar his right to demur to others. Such is the English rule, subject, perhaps, to the qualification that he should not be allowed by any arbitrary use of his privilege to make a partial statement of facts to the prejudice of either party. The general American rule is the other way, i. e., if he voluntarily discloses a part of a transaction or conversation tending to criminate him, he waives his privilege, and must answer freely and disclose the whole transaction or conversation, unless the partial disclosure is made under an innocent mistake, or does not clearly relate to the transaction as to which he refuses to testify." The citation from Wharton, I must say, with due respect to counsel making it, is not applicable to the case at bar. It is the theory of the defense that the notes above referred to, after having been executed and delivered to the said Wallace S. Smith by the parties whose names they bear, were by the said Smith raised or altered so as to represent other and greater sums or amounts; and they contend that having, when placed on the stand as a witness, testified as to the making or signing of the notes by the makers, he could not refuse to testify as to their alteration on the ground that such testimony might tend to criminate himself. Let us apply the law as laid down in the work cited as above quoted, and see if this position can be sustained. The making and delivery of the notes by the makers was, in each case, a transaction complete in itself. If the amount of the note was raised or altered in the presence of the maker, and as a part of the same transaction, then it was an act entirely innocent in itself, and could form the basis of no contention on the part of the makers nor of any one else. But that is not the position of the defendants. The theory upon which they sought to cross-examine the witness as to the alteration of the "condition" of the notes is that after their signing and delivery by the makers thereof, at another time, not necessarily at the same place, and as a different and separate transaction, they were altered, raised, and their "condition" changed. The witness, having submitted to testify as to the signing of the notes, could not, under the American rule, as above stated, have refused upon his cross-examination to answer any question as to the time, place, or other matter being a part of that transaction; but when it was sought to enter upon the investigation of another and distinctly separate transaction, by questions the answers to which would tend to criminate him, could he not, under the rule, refuse to answer? That proposition seems clear. The section of statute cited lays down the rule substantially the same as it is stated by the author whom we have quoted, and the statute supports the proposition. As herein before indicated, I doubt the necessity on the part of the plaintiff to prove the execution of the notes as a condition to their introduction in evidence for the purpose of fixing the amount due on the bond; but, if such proof was necessary, then the court erred in suppressing the deposition under consideration.

Having reached the conclusion that the true measure of damages in this case is the aggregate amount or face value of the negotiable securities delivered to the plaintiff by the said Wallace S. Smith, and received by the plaintiff in good faith within the time limited by the terms and conditions of said bond, and remaining unpaid at the time of the commencement of the suit, and not exceeding in the aggregate the sum of $5,000, with interest, the alleged error on the part of the trial court in refusing to instruct the jury to consider in their verdict the amount of certain property claimed to have been placed by the defendant Wallace S. Smith in the hands of his co-defendant Mayberry as an indemnity for his liability on said bond will not be examined.

The judgment of the district court is reversed, and the cause remanded to that court for further proceedings in accordance with law. Judgment accordingly. The other judges concur.

.

CHICAGO, B. & Q. R. Co. v. HULL.

(Supreme Court of Nebraska. November 7, 1888.)

1. APPEAL-REVIEW-DECISION ON FORMER APPEAL-STARE DECISIS.

A previous ruling by the appellate court upon a point distinctly made, may be only authority in other cases, to be followed or affirmed, or to be modified or overruled, according to its intrinsic merits; but in the case in which it is made it is more than authority; it is a final adjudication, from the consequences of which the court cannot depart, nor the parties relieve themselves. Phelan v. San Francisco, 20 Cal. 45, quoted in Wells, Res. Adj. § 613; Hiatt v. Brooks, 17 Neb. 33, 22 N. W. Rep. 73; O'Donohue v. Hendrix, 17 Neb. 287, 22 N. W. Rep. 548; Leighton v. Stuart, 19 Neb. 546, 26 N. W. Rep. 198; Nelson v. Bevins, 19 Neb. 715, 28 N. W. Rep. 331, Lane v. Starkey, 20 Neb. 586, 31 N. W. Rep. 238; Mynning v. Railroad Co., (Mich.) 35 N. W Rep. 811.

2. EJECTMENT-EVIDENCE-CONDEMNATION PROCEEDINGS.

In a trial where the defense consisted of proceedings under the provisions of the statute for the condemnation of certain real estate to the use of a railroad company, evidence was offered tending to prove that said real estate was necessary to said company for the purposes of its business, which evidence was excluded; evidence tending to prove the condemnation of the real estate by the railroad company was offered and received. It having been held in a former opinion of this court, in the same case, (32 N. W. Rep. 162,) that said condemnation proceedings as proved were ineffectual on account of defects in the notices, and other material matters of procedure, without considering and before arriving at the point as to whether the real estate in question was necessary to the railroad company or not, held, that the fact of said real estate being necessary to the said company, as effecting its power to condemn, is ancillary to that of actual legal condemnation, and that, actual legal condemnation not being proved, the exclusion of the evidence under consideration was not reversible error.

(Syllabus by the Court.)

Error to district court, Lancaster county; CHAPMAN, Judge.

This is a second appeal in an action of ejectment by Charles J. Hull against the Chicago, Burlington & Quincy Railroad Company, appellant, for possession of certain lots in the city of Lincoln. For opinion in former appeal, see 32 N. W. Rep. 162.

Marquett & Deweese and O. P. Mason, for plaintiff in error. etts& Wilson, for defendant in error.

Lamb, Rick

COBB, J. This cause was before this court at the January, 1887, term. By reference to the reported case, 21 Neb. 371 et seq., 32 N. W. Rep. 162, it will be seen that the action was brought in the court below by the plaintiff against the defendant in the nature of ejectment for the possession of lots 14, 15, 16, and 17, in block 70, in the city of Lincoln; that at the trial to the district court there was a finding and judgment in favor of the plaintiff, in so far as lots 14 and 17 were concerned, and in favor of the defendants as to lots 15 and 16. In this court, so much of the judgment as was in favor of the plaintiff was affirmed, and so much of it as was in favor of the defendants was reversed, and the cause remanded to the district court for further proceedings. There was a new, or second, trial in that court, to the court, a jury being waived by the respective parties, with findings and judgment for the plaintiff. The defendant, the Chicago, Burlington & Quincy Railroad Company, having made and submitted its motion for a new trial, which motion was overruled, again brings the cause to this court on error, and assigns the following errors: (1) The findings and judgment of the court are not sustained by sufficient evidence. (2) The judgment is contrary to law. (3) For error of law occurring at the trial, etc. (4) The judgment in this cause should have been in favor of the plaintiff herein, instead of the defendant. (5) The judgment of the court is against the evidence and the law of the case. The court should have found the title to said lots and the right of possession in the plaintiff herein, instead of the defendants herein. (6) The court, in overruling objections made to evidence offered by the defendant herein, and

admitting the same in testimony, erred. (7) The court erred in sustaining objections made by the defendant herein to evidence offered by the plaintiff herein, and excluding the same from the testimony. (8) Under the law applicable to the case, the defendant could not maintain ejectment in the recovery of possession of said lots. (9) The law of the case is in favor of the plaintiff herein, and, under the law and the evidence, the judgment should have been for the plaintiff herein. (10) The court erred in overruling the motion of the plaintiff herein for a new trial.

The first point presented and argued by plaintiff in error in the brief is that arising upon its objection to the remedy pursued in the action by the defendant in error in the court below. In other words, that the plaintiff below was limited to the statutory remedy given the owners of land for injuries sustained by the taking of the same by railways, and that an action in the nature of ejectment would not lie for such taking. His point was distinctly presented in this case, when it was first before this court, and distinctly decided. Under the well-known rule of stare decisis that decision remains the law of this case. See Hiatt v. Brooks, 17 Neb. 33, 22 N. W. Rep. 73, cited by counsel for defendant in error.

The second point presented by counsel in the brief is that the plaintiff in error had acquired title in the lots in question by 10 years' continued adverse possession thereof. This point was also raised, presented to this court, and distinctly decided upon the former trial. In the eighth point of the syllabus of the report in that case the court say: "Within the ten years last preceding the commencement of the action the railroad company sought to condemn the property to its use, under the provisions of the statute for the condemnation of real estate. These proceedings were instituted against the real owner by name, and the condemnation money deposited with the county judge for him. It was held that these proceedings amounted to a recognition of the ownership of the person against whom they were instituted, and would arrest the running of the statute, even though the proceedings were void for want of jurisdiction by reason of a failure to comply with the law in the publication of the notice." Therefore what is said above in regard to the first point raised in the brief is equally applicable to the second point. The syllabus of the former case is the settled law of the case, and it would be idle to discuss here the correctness of the principles of law then laid down.

Upon an examination of the bill of exceptions, it appears that the proceedings and evidence in the second trial were identical with those of the first, with the exception that on the second trial there was additional evidence in reference to and explanatory of the alleged withdrawal of the condemnation noney paid to the county judge upon the first proceeding for condemnation. The effect of this withdrawal was discussed in the former opinion, and constitutes the ground of the fourth clause of the syllabus, but logically it formed no part of that opinion. It was the condemnation proceedings of 1880, or last effort at condemnation, including the payment of condemnation money thereunder by the plaintiff in error, which, according to that opinion, arrested the running of the statute of limitations, upon the alleged adverse proceeding of the plaintiff in error. It would therefore avail nothing to discuss the effect of the new evidence in explanation of the withdrawal of the condemnation money paid in upon the proceedings of 1875.

The third and fourth points discussed by plaintiff in error in the brief arise upon the exclusion by the trial court of certain evidence offered by the plaintiff in error on the trial, in regard to the necessity to the railroad of plaintiff in error of the buildings erected on the lots in controversy, and the purpose for which the plaintiff in error received moneys from its tenants for the occupancy of said lots. It is doubtful whether any question arose under the pleadings under which evidence upon either of the above-named matters was admissible, but it is quite certain that neither the case as presented by the plain

tiff, nor the defense as made by the defendant, ever reached a point where such evidence was available to the defendant in the court below, thereby making its exclusion by the court reversible error. This was an action in the nature of ejectment. Upon the trial, the plaintiff introduced his evidence of title and rested. The defendant then offered evidence tending to prove adverse possession of the lots by the defendant for the period of 10 years; also that the lots were necessary to the railroad company in the conduct of its business, and that rent was charged to Messrs. Humphrey Bros. for the use of the building situated on the lots only for the purpose of keeping down local taxes levied on the lots, but that the chief purpose of the railroad company in allowing them the use of the property was to facilitate their large shipping business over its line of road. Some of this evidence was admitted, and part of it excluded. The plaintiff in error here (railroad company) then offered in evidence the county judge's record of its proceedings for the purpose of the condemnation of the said lots to the use of its railroad; also the county judge's record of the proceedings of the Nebraska railway company for the condemnation of the said lots to the use of its railroad; which records, in both cases, were received in evidence. Whereupon the defendant rested.. Had the defense of 10 years' adverse possession been sufficiently proven, and established to the satisfaction of the trial court or of this court, evidence that said, lots were necessary to the railroad company for the purpose of carrying on its business would not have been required, as such length of adverse possession would have constituted a sufficient defense of itself. Neither do I see the relevancy of evidence of the purpose for which the railroad company received rent from persons occupying the lots under it. The receipt of such rent for any purpose would not make such occupancy by the tenant either more or less the possession of the landlord.

As to the defense founded upon condemnation proceedings, had it been otherwise complete, evidence that the lots were necessary to the railroad company for the purposes of its business would have been relevant and admissible, for the reason that. such company under the law is only authorized to “take, hold, and appropriate so much real estate" by condemnation proceedings as may be necessary for the location, construction, and convenient use of its road," etc. But such evidence, in a trial like the one we are now considering, is only auxiliary to the proof of such condemnation, and only applicable upon such proof being otherwise complete. In the former opinion in this case the condemnation proceedings of 1875, as well as those of 1880, were held to be ineffectual, on account of defects in the notices, and other material matters of procedure, without considering, and before arriving at the point, as to whether the use of the real estate in question was necessary to the railroad company or not. Adhering to the law as there laid down by the court, as we must, under the rule hereinbefore stated, there is no escape from the conclusion that there is no reversible error in the exclusion of the evidence under consideration. I do not deem it necessary to add anything to what is above said in regard to the exclusion of evidence offered as to the purpose for which the railroad company received rent for occupation of the buildings situated on the lots in question. The judgment of the district court is affirmed. The other judges concur.

REED . MORTON.

(Supreme Court of Nebraska. November 7, 1888.)

1. HUSBAND AND WIFE-WIFE'S SEPARATE ESTATE-CONVEYANCE-DEED-BLANKSBONA FIDE PURCHASERS.

Where a wife executes a deed of her real estate, leaving the name of the grantee, the amount of consideration, and the date blank, and delivers such deed to her hus