all parties having an interest therein. If two persons have an interest, then the rights of both must be respected, and their damages assessed. If, while the proceeding is pending, one of the parties acquires all the interest of the other party, he may show that fact, and will then be entitled to all the compensation. The fact that one of the parties is the state can make no difference, as there is no claim that the railroad company has paid the state any part of the condemnation money, or is liable therefor. The objection, therefore, is not well taken.

4. The fourth objection is that the court erred in admitting evidence of damages to other tracts contiguous to, but not embraced in, the lands covered by petition in the condemnation proceedings, and not covered by the award of the commissioners. There are three plats in the record, showing the descriptions of land owned by the plaintiffs below. From one of these plats it appears that the railway runs for a considerable distance along a creek, on the plaintiff's land, and completely cuts off access to water for stock on a largeportion of one of said bodies of land. The rule is that, where a railroad runs through an entire tract, the land-owner is entitled to all the damages which result to him from the taking. He is not limited to the lands described in the petition of the railroad company, nor the award of the commissioners, but may show the facts and circumstances, and direct effect upon his land accompanying or flowing from such appropriation. Wilmes v. Railroad Co., 13 N. W. Rep. 39; Sheldon v. Railway Co., Id. 134; Ham v. Railway Co., 17 N. W. Rep. 157. In other words, just compensation for real estate taken or damaged entitles the owner of several descriptions, used as one farm or body of land, to compensation for injury to the whole, although the right of way extends across but one or two of the subdivisions. There is no error, therefore, in admitting this evidence.

5. The fifth objection is that the damages are excessive, and not warranted by the evidence. In Clarke v. Railroad Co., 23 Neb. 616, 37 N. W. Rep. 484; and Railway Co. v. Johnson, 40 N. W. Rep. 134, it was held that the question of the amount of damages sustained by the land-owner for a right of way condemned across his land is peculiarly of a local nature, proper to be determined by a jury of the county; and that ordinarily, where the verdict is based upon the testimony, this court will not vacate or modify it. That rule is applicable

in this case, and we find no cause for vacating the verdict.

6. The sixth ground of error is that the court erred in refusing to give to the jury instruction No. 1, asked by the plaintiff in error, which is as follows: "You are instructed that it is by law the duty of a railroad company to construct and maintain adequate crossings for all land-owners across whose lands such road runs, and the question of the character of adequacy of such crossings cannot be considered by you in making your estimate of damages in this case." The court, on its own motion, had previously instructed the jury that the statute requires railroad companies to provide suitable crossings at all public highways sufficient to prevent stock from getting upon such railroad, and with open gates or bars at all farm crossings of such railroad, for the use of the proprietor of the land adjoining such railroad; and the failureof the railroad company to provide such crossings is not a proper element of damages in this case. It will be seen that the court had give instructions on that point as favorable as the railway company was entitled to ask for. Some objection is made to the proof of damages as made by the commissioners, and which was submitted to the jury. The exact purpose of the introduction of this evidence is not apparent, but the error, if any, would seem to be in favor of the railway company, and not against it. Upon the whole case, it is evident that the plaintiffs below sustained heavy damages from the location of the railway company across their lands, and that the verdict of the jury is not excessive. The judgment of the district court is therefore affirmed. Theother judges concur.

NORTHEASTERN NEB. RY. Co. v. FRAZIER.

(Supreme Court of Nebraska. November 28, 1888.)

1. EMINENT DOMAIN-COMPENSATION-WITNESS-COMPETENCY.

In an action to recover damage for real estate condemned for right of way for a railway company, a witness who testifies that he resides near the land condemned, and was acquainted with the value of real estate in that vicinity at the time of the condemnation, is, prima facie, a competent witness to prove the amount of damages sustained by the land-owner.

2. SAME-EVIDENCE-ADMISSIBILITY.

While the date of filing a petition to condemn real estate for right of way of a railroad is deemed the time when the appropriation takes place for the purpose of assessing damages, yet proof is not limited to that particular day; and where the petition was filed in June, and a witness testified to the value in the following August, the evidence was held admissible.

(Syllabus by the Court.)

Error to district court, Wayne county; POWERS, Judge.

Action by Randall Frazier to recover damages for land condemned for right of way for the Northeastern Nebraska Railway Company. Judgment in favor of plaintiff, and defendant brings error. H. C. Brome, for plaintiff in error. defendant in error.

James Britton and H. H. Moses, for

MAXWELL, J. The questions involved in this case are, to a great extent, the same as in Railroad Co. v. Frazier, ante, 604, just decided.

The first

point decided in that case does not arise in this; but the decision of the other questions in that case will be adhered to in this. The new points raised in this case are:

1. The incompetency of a certain witness to testify to the value of the lands injured. The testimony of one Steel is referred to, to show his incompetency. In regard to his qualifications, he testifies as follows: "Question. Where do you reside? Answer. Wayne, Nebraska. Q. Are you acquainted with Randall Frazier, the plaintiff in this case? A. Yes, sir. Q. Are you acquainted with the location of the north-west quarter of section 13, Tp. 26, R. 3 E.? A. Yes, sir. Q. Are you acquainted with the S. E. quarter of Sec. 23, Tp. 26, R. 3 E., and the location thereof? A. Yes, sir. Q. And the S. S. E. Sec. 14, Tp. 26, R. 3 E.? A. Yes, sir. Q. Are you acquainted with the location of the S. W. Sec. 13, Tp. 26, R. 3 E.? A. Yes, sir. 1 A. Yes, sir. Q. State, if you know, where these lands are located, relative to this town. A. They join the townsite. Q. On which side? A. South-west side. A. South-west side. Q. State, if you know, who is in the occupancy of these lands; and who has been, for the last four or five years. Objected to by the defendant as immaterial; overruled by the court, to which the defendant excepts. A. Randall Frazier. Q. Were you, in the year and in the summer of 1886, acquainted with the market value of these lands, and also the lands in their immediate vicinity? A. I was.” He was then permitted to testify as to the value of the land before the location of the road, and the value immediately afterwards. In this, we think, there was no Prima facie, at least, he had show sufficient to make his testimony admissible. He testifies to his residence near the land, to the knowledge of its value, at the time the railway was located across the land. If the railway company desired a more complete statement, it should have cross-examined the witness upon that point. The fact that it failed to make an extended cross-examination upon that point leads to the inference that such cross-examination would have shown the witness to be thoroughly qualified. This ground of objection, therefore, is unavailing.

2. The second ground of error is that the court erred in receiving evidence of the value of this land in August, 1886. It is true, the petition was filed June 11th of that year, and the appraisement made on the 23d of that month. v.40x.w.no.7-39

The time of filing the petition is to be taken as the period when the damages are to be determined. This, however, we do not understand to be limited to any particular day. The estimate is to be made at about that time. If there is a fluctuation in value, it may be shown; but testimony as to the value a short time after the appropriation is admissible; and, in the absence of any proof showing an increase or diminution in value after the appropriation, a jury would be warranted in finding that the same values had existed at the time of the appropriation. Ordinarily, in one or two months there will be but little fluctuation in the value of real estate. The location of a new line of railway may, and in most cases does, advance the general values of land along the line of such railway,-particularly, near stations. But such advance usually seems to take place upon the location of the line, and before the construction of the road, so that it may be said that the enhanced general values are discounted. If, however, there should be such fluctuation, it may be shown. In any event, the testimony was competent, although the court may require further proof of the relative values at the time of the appropriation. The judgment is clearly right, and is affirmed. The other judges concur.

CORNWELL v. MEGINS.

(Supreme Court of Minnesota. November 16, 1888.)

NOVATION-WHAT CONSTITUTES.

To constitute a novation of parties there must be an extinguishment of the old debt by a mutual agreement between all parties, whereby it becomes the obligation of the new debtor. The discharge of the old debt must be contemporaneous with and result from the consummation of an arrangement with the new debtor. (Syllabus by the Court.)

Appeal from district court, Stearns county; STEARNS, Judge. Action to recover a balance due upon a written contract. Defendant Megins appeared and answered separately, alleging that, after making the contract with plaintiff, he and the other defendants had organized themselves into a corporation, called the "Dakota Lumber Company;" that thereafter he had sold and assigned his interest in the corporation to the other defendants, who, in consideration therefor, had assumed the liability of Megins under the contract; that plaintiff, with knowledge of these facts, had thereafter extended the time for the payment of his claim, and taken the promissory note. of the Dakota Lumber Company in payment thereof. The action was tried without a jury before the court, who found that defendant Megins had never been released from his liability under the contract, and judgment was ordered for plaintiff. Defendant appeals.

C. E. Joslin, for appellant. Reynolds & Stewart, for respondent.

COLLINS, J. 1. If, as asserted in appellant's brief, defendants were copartners engaged in manufacturing lumber when the contract with plaintiff was entered into, May 5, 1881, the written contract fails to show it. On the contrary, it negatives such claim, as it is signed by the appellant, Megins, as an individual, by the other defendants, Crockett and Shot well, as copartners. 2. There is no testimony to indicate that plaintiff knew, when dealing with defendants, that they had organized a corporation. He evidently knew that they were doing business as the Dakota Lumber Company; he received letters and remittances, and in his correspondence addressed them as such company; but this, of itself, is insufficient to relieve each person to the contract from his liability thereunder. In no manner did plaintiff release the defendants from their contract obligations.

3. The corporation was organized September 8, 1881, about six months after the contract was entered into. On December 2, 1885, appellant transferred half his stock therein to Crockett, and the other half to Shotwell, thus

making them holders of all of the stock. Each executed an agreement to protect and save him harmless from any and all liabilities arising from his ownership of the stock so assigned. The appellant urges that by these instruments the makers assumed and promised to pay the debt in question. Whatever may be the legal effect of the agreements, it is not shown that plaintiff had any knowledge of their execution, or that, when purchasing the stock, Crockett and Shot well assumed any obligation to liquidate the indebtedness. Notice that appellant had sold out with a request that the plaintiff collect his claim of those to whom he had sold, is not information that they had undertaken its payment, or agreed to protect appellant from liability on his contract. As plaintiff was not notified, and had no knowledge of the agreement said to have been made when appellant sold out, the cases cited by his counsel (Millerd v. Thorn, 56 N. Y. 406, and others) caunot avail. In each of these the creditor of the partnership was advised that one or more of the partners had agreed with the others to assume and pay the debts of the firm. Possessed of this knowledge, the creditor took the negotiable promissory notes of those who should pay, and thereby, as held by the court, canceled the claim against the firm. Such is not the case here. It is possible that, as between appellant and the purchasers of his stock, the latter are primarily liable; but it does not follow that the original debtors are released, or plaintiff's right to proceed against either or all affected. To prevent a recovery by him there must be proven facts which will constitute a novation of the debt, the essential elements of which are an extinguishment of the old debt by a mutual agreement between all parties, whereby it becomes the obligation of the new debtor. The discharge of the old debt must be contemporaneous with and result from the consummation of an arrangement with the new debtor. 1 Pars. Cont. 271; Kelso v. Fleming, 104 Ind. 180, 3 N. E. Rep. 830. As plaintiff had no knowledge of the alleged assumption of the debt by Crockett and Shotwell, and did not consent thereto, the judgment must be and is affirmed.

WELCH . MARKS et al.

(Supreme Court of Minnesota. December 6, 1888.)

1. PARTITION-SERVICE BY PUBLICATION-SALE-CONFIRMATION-MOTION TO SET ASIDE -PARTIES.

In an action of partition, non-resident defendants were served with the summons by publication only. For want of an answer, judgment was rendered, and the lands sold to plaintiff by a referee; it having been found by the court that partition could not be made without great prejudice to the owners. This sale was confirmed, and thereafter the lands sold and conveyed by plaintiff to alleged bona fide purchasers. A part of the defendants seasonably and properly moved, upon affidavits and answers, that the court should vacate the judgment, annul and set aside all proceedings subsequent thereto, and allow a defense to be made upon the merits. The affidavits and proposed answers were ample in form and substance, and were confessedly true. Held, that it was not necessary to make the alleged bona fide purchasers parties to said motion, nor need they be notified of its pendency.

2. SAME JUDGMENT BY DEFAULT-VACATION.

Held, further, that the court erred in refusing to permit the interposition of the proposed answers, and in denying a trial upon the merits of the case.

(Syllabus by the Court.)

Appeal from district court, Sibley county; EDSON, Judge. Action for partition by Thomas Welch against James T. Marks et al. Defendants failing to answer, judgment was entered in favor of plaintiff, and the lands mentioned in the complaint were sold. Defendants afterwards moved to set aside the judgment, the sale, and the confirmatory order, and that they be allowed to defend. The motion was denied, and defendants appeal.

Reynolds & Stewart, for appellants. S. & O. Kipp, for respondent.

COLLINS, J. Plaintiff, above named, claiming to be the owner of an undivided two-ninths of certain real estate situated in Benton county, brought an action for partition, averring in his complaint a tenancy in common, and stating the respective interests of each of the defendants. There were further allegations as to the value of the property, and that partition could not be made without great prejudice to the owners. The complaint concluded with the usual demand for a sale by a referee, and a division of the proceeds among the parties, plaintiff and defendants, as their interests might appear. The summons was served by publication only; and thereafter, on February 24, 1885, for want of an answer, judgment as prayed for was entered in form; after which, on April 18, of the same year, the referee named, sold and by deed conveyed to the plaintiff all the lands mentioned in the complaint and judgment decree. This sale was confirmed by the court April 25th, and the proceeds thereof, (less fees and expenses,) deposited in court for the use of the proper parties. On the 12th day of December, 1887, (more than one year after the rendition of the judgment,) three of these defendants moved the court, upon affidavits and separate proposed answers, that said judgment, the sale by the referee, the order confirmatory thereof, and all proceedings pertaining to either, be set aside, vacated, and annulled, and that they be allowed to defend the action. The affidavits and proposed answers disclose defendants' interests to be as stated in the complaint. They further aver that plaintiff has no right, title, or interest in or to any part of said land; that his claim thereto is based upon tax assignments on which the time for redemption has not expired, and upon tax certificates void on their face, but which purport to cover a portion of said land owned by one Bryant; that the premises were sold by the referee at about one-eighth of their value; that actual partition thereof could be had without prejudice to any one; and that the other defendant, Castle, died many years prior to the commencement of this action. The plaintiff makes no attempt to controvert the contents of the moving papers; nor does he contend that defendants, as non-residents, have not clearly brought themselves within the provisions of section 125, c. 66, Gen. St. 1878. But he sets forth by affidavit that by and through certain conveyances (all of which have been duly recorded) all of the lands in dispute have passed from plaintiff, since the confirmatory order, into the hands of bona fide purchasers and for value, and from these facts argues, among other points which need not be specially discussed, two propositions: First, that no part of this motion can be granted until the purchasers from plaintiff are cited in and made parties thereto; second, that the motion must be wholly denied, because to grant any portion of it would affect and jeopardize the titles of good-faith purchasers, whose rights rest upon a sale made by order of the court in a properly commenced and completed judicial proceeding.

It may be conceded that in demanding the setting aside of the sale, and all subsequent steps, the defendants asked too much; but they were clearly entitled to a part of the relief sought,-the privilege of litigating the merits of the controversy,-unless the first position above mentioned is sound as a question of practice. See Lord v. Hawkins, 38 N. W. Rep. 689. If the purchasers of the lands must be notified of all efforts which defendants may make to be heard in this action, it is because of rights which they have secured, and which may be endangered, should the judgment be set aside. No other reason can be urged for compelling them to participate in the expense and uncertainty of a lawsuit. But if, as plaintiff urges, they are protected by the judicial sale, have acquired rights through it which cannot be disturbed, it can make no difference to them what may subsequently transpire as between the parties to the action. They may rest in perfect repose, relying upon the protection afforded by the law in like cases, and wholly indifferent as to the result of this or any other proceeding of which they are not directly notified. Of the many cases cited by respondent in support of his proposition that defendants are