assault upon the plaintiff, and him, the said plain- * 2. A person who unlawfully shoots another, and wounds him, whether intentionally or through negligence, is liable for the damages thereby sustained by the party injured. (Syllabus by the Court.) Error to district court, Saline county; BROADY, Judge. Thurston & Hall and Dawes, Foss & Stephens, for plaintiff in error. L. W. Colby, Hastings & McGintie, and Hazlett & Bates, for defendant in error. walls of this building was to be erected on | October, 1883, the "defendant unlawfully made an the dividing line between a lot owned by Kershaw and that sold to the plaintiff and defendant; Kershaw to own half of the wall, and one-half of the expense of erecting the same to be deducted from the price of the lot. The cost of the building is shown by the 'testimony to have been $3,700. The plaintiff kept the construction account, but made no deduction for the credit on the lot, to which they were entitled, for one-half of the wall. The amount of the credit is shown to have been $387.19. After the completion of the building the plaintiff sold his interest in the partnership to the defendant; the goods to be estimated at 15 per cent. discount from the cost, and the building and lot to be taken, as the defendant claims, at actual cost, while the plaintiff claims that the price agreed upon was $4,710. There is no dispute about the price of the goods; the only contention being as to the price to be paid for the building and lot. The contract was not reduced to writing, but the parties went before Dr. Dafoe, who kept a store adjoining theirs, and stated the contract to him; the plaintiff stating the price of the building and lot to be $4,710, while the defendant stated that it was to be the actual cost. The doctor testifies to these MAXWELL, J. On the 3d day of May, facts, as also the defendant; while the plain- 1884, the plaintiff filed a petition in the distiff testifies that the price agreed upon was trict court of Saline county against the de$4,710. There is no proof as to the actual fendant, to recover damages for unlawfully value of the property at the time of the sale, assaulting the plaintiff; "and him, the said so that the only means of determining the plaintiff, did then and there beat and ill price agreed upon is from proof of the con- treat, by striking and by shooting in the abtract. The plaintiff admits in his testimony domen, so that he has been unable to attend that the construction account kept by him to his lawful business since said 20th day of was not entirely accurate, but was intended October, 1883; and other wrongs, then and to show approximately the cost of the build- there committed upon him, the said plaintiff, ing, and he seems to have claimed, at the whereby he was made to suffer great pain, time of the sale, that the actual cost was both in body and mind, to the damage of the $4,710, making no deduction for the credit plaintiff to the amount of $10,000. (2) for the half wall; and the note in question Plaintiff complains of the defendant, for that was given for a part of the consideration of said plaintiff was compelled to expend, and the price of the property at $4,710. The has expended and paid out, the sum of $850, plaintiff seems to contend that, the transac-in and about nursing the said plaintiff, and tion being complete, the defendant cannot deny his liability on the note. This is an action between the original parties to the instrument, and in such case the consideration may be inquired into, and only the actual | amount due recovered. The defendant had paid the plaintiff before the bringing of this action the entire amount due upon said note, if we add the credit due from Kershaw for one-half of the partition wall. A clear preponderance of the testimony establishes the fact that the price to be paid for the lot and building was the actual cost thereof. The defendant, therefore, was entitled to the credit claimed by him, and the judgment of the court below is affirmed. The other judges concur. CARMICHAEL v. DOLEN. (Supreme Court of Nebraska. Jan. 3, 1889.) ASSAULT AND BATTERY-PLEADING-NEGLIGENCE. 1. A. brought an action against B. in May, 1884, in which he alleged that on or about the 29th of in endeavoring to be cured of the said wounds as aforesaid occasioned, to the damage of the plaintiff to the sum of $10,000." The amount of damages claimed in the prayer is $10,000. The summons first issued in this case was returned without being served, and an alias issued, but not served, within a year from the time the cause of action accrued; service not having been obtained until December 27, 1884. The defendant afterwards appeared, and filed a motion to require the plaintiff to amend his petition, by stating fully and specifically the items of expense for nursing, etc., incurred by the plaintiff in being cured of his injuries. Afterwards, and before a ruling on the motion, the defendant filed a general demurrer to the petition. The motion and demurrer were submitted together to the court, and both were overruled. In October, 1885, the plaintiff asked and obtained leave to file an amended petition. No objection seems to have been made by the defendant to this order. The amended peti The tion is as follows: "That on the 29th day | ant's motion to strike the amended petition of October, 1883, the defendant at De Witt, from the files. The question here presented Saline county, and state of Nebraska, and on was before this court in McKeighan v. Hopthe evening of said day, in a saloon kept by kins, 19 Neb. 33, 26 N. W. Rep. 614, and it one Charles B. Bailey, being somewhat un- was held that where the amendment does not der the influence of liquor, which the defend-change substantially the claim, although the ant had knowingly and intentionally drank, form of the action may be changed, the court took from his pocket a pistol or revolver, has power to grant the amendment. In other and, in disregard of the lives and safety of words, so long as the identity of the cause of the persons then in said saloon, flourished action is preserved, the form of the action is and displayed the same in a negligent and not material. Spice v. Steinruck, 14 Ohio careless manner; that this plaintiff was at St. 213; Lottman v. Barnett, 62 Mo. 159; said time a peace-officer, and was present in Hayden v. Hayden, 46 Cal. 332; Bullard v. said saloon as such, by the request of the pro- Johnson, 65 N. C. 436; Robinson v. Wilprietor of the same, to prevent disorder and loughby, 67 N. C. 84; Maxw. Pl. & Pr. (4th preserve the peace; that, when the defend- Ed.) 174, 175. The cause of action set forth ant so drew and flourished his said pistol or in the first petition is the injury inflicted on revolver, this plaintiff started towards him the plaintiff by the defendant, by shooting for the purpose of inducing him to replace him, and this is the cause of action set forth the same in his pocket; that while so ad- in the amended petition. The change in the vancing the defendant negligently and care-allegations relates only to the mode in which lessly discharged said pistol or revolver, the injury was inflicted. There was no error, while the same was pointed at this plaintiff, therefore, in overruling the motion to strike and thereby the plaintiff was wounded and the amended petition from the files. It is shot through the body, without any fault or very probable, also, that an injury resulting negligence on his part; that said wound and from wounds, intentionally inflicted by a injury was caused wholly by the negligence deadly weapon, do not come within the limand carelessness of said defendant in hand-itation as simply "assault and battery." But ling his said pistol or revolver; that the that question is not before the court. plaintiff was thereby dangerously wounded, character of the injuries inflicted on the and diseased, and was confined to his bed for plaintiff are shown to have been very severe about the period of three months; that he has and permanent in their nature, and would suffered great bodily and mental pain and have justified the jury in returning a verdict agony; that he has been thereby permanently for a much greater sum than was done in disabled, and made a cripple for life; that this case, he having been shot through the prior to said injury he was a strong and able- body, and it is apparent that his life was prebodied man, and able to provide for himself served only by the utmost care and skill. and family; that by reason of said injury he The defendant himself testifies as to the mode has become permanently crippled and dis- in which the shooting was done, as follows: abled, and unfitted to perform any ordinary "Question. You may state if you were in manual labor; that in the treatment and nec- the saloon of Mr. Bailey that night, in essary care and attention of said wound, and De Witt. Answer. Yes, sir. Q. You may of himself while suffering from the effect of state if you saw Mr. Yule there that day. the same, he has expended large sums of 4. I did. Q. What had you been doing that money, and incurred liabilities for physician's day? A. Mr. Yule and I came from Beatrice services, medicines, and nursing, and other to Wilber that afternoon, and we had started services of a like character, in the sum of to Mr. Jo Ellis', and we heard that he was $850; that he has been injured in the prem- in De Witt, and we went there to meet him. ises in the sum of $10,000." The defendant I had some business there. Q. Go on and filed a motion to strike this petition from the tell what happened there that day. A. Mr. files, for the reason that the cause of action Yule and I went into De Witt about 4 o'clock, was not the same as that set forth in the orig- or about that time, and went to the stable, inal petition. The motion was overruled, to and put up our team, and I think I struck which the defendant excepted, and now as- Mr. Bailey on the street, and I asked him if signs the same for error. The defendant in Jo Ellis was in town, and he said he was, his answer pleads: (1) Self defense; (2) and Mr. Yule went to the hotel, and Mr. that he is a resident of Gage county; and (3) Bailey and I went off, and had a talk somedenies the facts stated in the petition. On where, and finally Mr. Yule and Mr. Bailey the trial of the cause the jury returned a ver- and Mr. Ellis, -I am not positive about Mr. dict in favor of the plaintiff for the sum of Yule,-Mr. Bailey, Mr. Ellis, and myself $2,000, and made certain special findings, went back to the saloon again, and then on which are not material to be considered. the sidewalk between the post-office and Mr. The defendant filed a motion for judgment, Bailey's saloon, and Mr. Yule told about notwithstanding the verdict. This motion some threats that he had heard. Q. What the court sustained, and dismissed the action, was it he told you? A. He told me they upon the ground that the cause of action was were fixing up a plot to kill me, and pay me barred when the suit was brought. up; and he says: Oh, this is all settled;' The first question to be considered is the and Mr. Carmichael, and the man, Brown, he action of the court in overruling the defend-calls his deputy, came in, and they went in, amount is not now before the court. The court erred in sustaining the motion to disregard the verdict, and render a judgment for the defendant. The judgment of the district court is reversed, and the cause remanded to the district court, with direction to reinstate the case, and render judgment on the verdict in favor of the plaintiff, and for such other and further proceedings as may be just in the case. Judgment accordingly. The other judges concur. KIKEL . KIKEL. (Supreme Court of Nebraska. Dec. 14, 1888.) DIVORCE-ABANDONMENT-CRUELTY. A husband who brings an action against his wife for a divorce on the ground of abandonment will to appear on the trial that she was compelled to leave the home of the plaintiff by reason of his cruel treatment of her. not be entitled to a decree of divorce if it is made back to the stove, or near the stove,-I am not | ering the character of the injuries proved, positive where they did go; and the Dr. Elder but the adequacy or inadequacy of the and Sigt came in, and Elder stood back near the door, and Charley said, 'Ed, have a cigar;' and I think he lit it, and walked towards me, and says, John, how is politics in Gage county?' and I says, 'I don't know; all right, I hope;' and I saw him make a move, and he says, 'You son of a bitch, I will give it to you now.' He had something in his hand, -I don't know. Just then I had my pistol in my right-hand pocket, and I think I had my hand on my pistol, and I drew it out and fired, right over my left shoulder, and I suppose hit him, and I had not done that till some one else was pounding me over the head with a club. I suppose I shot as long as there was any loads in the gun, and, when I came to, I saw Carmichael had me down on the floor; and I says, My God, Bill, what have you got me down here for?' and I was still pulling away. Q. After this blow was hit you by Mr. Sist, have you any distinct recollection of the transaction? A. That is the first thing that I distinctly remember, when he had me on the floor; that was the first time I really knew what I was doing. When they went to take me out of the door, I wiped the blood off my forehead, and still had my revolver in my right hand, and Sist was lying on the floor, and I saw Carmichael pull up his coat, and says, You have shot me.' Q. After you tired the first shot, did you receive another blow? A. The blows all came as though they were coming from that one man. Q. When you shot, you shot to hit the man that was pounding you? 4. Yes, sir. Q. At that time, what was your condition as to being under the influence of liquor or not? A. I was not under the influence of liquor. I had taken about three glasses of beer after I came to De Witt. I think I had taken that many," etc. There is a large amount of testimony to the same effect. A person who unlawfully, whether by design or through carelessness, shoots another, and wounds him, is liable in a civil action for the damages sustained. The testimony in this case shows that there were a large number of persons in the saloon at the time the plaintiff was injured, yet the defendant, in utter disregard of the injuries he might inflict upon such persons, swears that he fired his pistol over his shoulder, and that while thus firing the plaintiff was wounded by one of the shots. All the testimony tends to show that the shooting was in violation of law, and not in necessary self-defense. The defendant is liable, therefore, for all the damages any party injured sustained by his conduct. In a law-abiding state like this, there is no excuse for a party carrying concealed weapons. The law prohibits the carrying of such, and if a party, in violation thereof, carry the same, and unlawfully use them to the injury of another, he may expect to respond in damages to the party injured. The amount assessed by the jury in this case is low, consid (Syllabus by the Court.) Appeal from district court, Cuming county; CRAWFORD, Judge. Uriah Bruner, for plaintiff. MAXWELL, J. In November, 1884, the plaintiff filed her petition against the defendant in the district court of Cuming county, praying for a divorce from the bonds of matrimony upon the ground of cruelty. There was an additional prayer for alimony. In her petition the plaintiff alleged that she and the defendent were married in Prussia, in the year 1859. The defendant in his answer admitted the marriage as alleged, but denied the other allegations of the petition. In January, 1885, the defendant sold his farm in Cuming county for about $2,500, and, after paying an incumbrance on the farm of from $400 to $500, paid the plaintiff the sum of $663. This seems to have been paid under an agreement of the parties to live separate from each other. The evidence as to the agreement is not very clear, nor is the question material in this case. The action remained on the docket of the district court, and in September, 1887, the defendant filed an answer in the nature of a cross-petition, in which he alleges, in substance, that the plaintiff left said defendant without his consent, and has since refused to live with him, and that in January, 1885, he sold his farm, and paid the plaintiff $663, and divided the personal property with her. A few days after the filing of the cross-petition the plaintiff applied to the court for an order for temporary alimony to prosecute the action, on the ground that she was without means, while the defendant had an abundance. This application the court overruled. The plaintiff thereupon dismissed her petition, and filed an answer to the defendant's cross-petition, in which she denied all the allegations therein contained, except the sale of the farm, payment of money, and division of some person al property. She thereupon alleged the extreme cruelty of the defendant as cause for her leaving. On the trial of the cause a decree of divorce was rendered on the cross-petition of the defendant. The plaintiff appeals. Wood, 5 Ired. 674; Camp v. Camp, 18 Tex. 528. A party who brings an action against his wife for a divorce, on the ground of abandonment, will fail in the action, if it appear on the trial that his wife was compelled to leave his home by reason of his cruel treatment of her. In such case, the party bringing the action is the one at fault; the desertion being caused by his own acts, and not from the desire of the wife. The testimony in this case shows that the alleged abandonment of the plaintiff was caused by the cruel treatment of the defendant, and not from a desire on the part of the wife to separate from the defendant. This being the case, he is not entitled to a decree of divorce. judgment of the district court is reversed, and the cause remanded for further proceedings. The other judges concur. WATERS v. SHAFER. The believe she cannot, and for such reason she leaves him, and abandons her home, she does not thereby commit the crime of desertion." See also Cornish v. Cornish, 23 N. J. Eq. 208; Carter v. Carter, 62 Ill. 439; Pierce v. Pierce, 33 Iowa, 238; Levering v. Levering, There is but little contradiction in the tes- 16 Md. 213; Lea v. Lea, 8 Allen, 418; Crow timony. The plaintiff and defendant were v. Crow, 23 Ala. 583; Fulton v. Fulton, 36 married in Prussia in the year 1859, and nine Miss. 517; Lynch v. Lynch, 33 Md. 328; children were born to them. The plaintiff Marsh v. Marsh, 14 N. J. Eq. 315; Washtestifies in regard to the defendant's treat-burn v. Washburn, 9 Cal 475 Wood v. ment of her as follows: "When there was the young folks in the house he could not do me anything; he could not harm me. Since that time he commenced about going to court, and he wanted to borrow money, and I would not sign with him. Then he kicked me with | his foot, this way. On the 18th of January he came home at twelve or half past eleven o'clock in the night, and said: Now, you will see that the court gets the farm. What are you laying here and stinking for? Come, get out of this.' I said to him: Well, I will, if it is in the middle night. Give me my share.' Then he said: I will give it to you, you carcass, that your head will rattle.' And as he was saying this he was in the room, and had hold of me by the arm, and dragged me out of the bed, and on the floor. In the morning he said: Ain't you going to get up?' I will throw you out of the door. If you don't get up I will throw you out of the door.' Then I got up, and he got up also, and made the fire. I was bruised over here, all black. * * *Then William Huss came and milked the cows. I said that I could not milk, and when he came I was sitting trying to put on my shoes, and he took my shoes away, and hid them in the cupboard, and locked the cupboard, and put the key in his pocket." She also testifies to other acts of cruelty, which need not be considered. The testimony of the defendant was taken through an interpreter, and perhaps that of the plaintiff. The defendant does not deny the essential facts testified to by the plaintiff. Upon this proof can a decree of divorce be sustained? We think not. In Warner v. Warner, 20 N. W. Rep. 558, the supreme court of Michigan say: "Separation is not necessarily desertion. The latter may not arise until long after the former has occurred, (Reed v. Reed, Wright, 224; Ahrenfeldt v. Ahrenfeldt, 1 Hoff. Ch. 47; Clement v. Mattison, 3 Rich. Law, 93; Fellows v. Fellows, 31 Me. 342;) and, when separation and desertion occur at the same time, the guilty party is not always the one who leaves the matrimonial home, (St. John v. St. John, Wright, 211; Cossan v. Cossan, Id. 147; 2 Dane, Abr. 308; 1 Bish. Mar. & Div. § 514.) Desertion, under the statute, is the willful abandonment of one party by the other without cause, and against the will of the party abandoned, for the period of two years. If the husband's conduct is so cruel towards his wife that she cannot live and cohabit with him with safety to her health, or without peril to her life, or if she has good reason to (Supreme Court of Nebraska. Dec. 14, 1888.) GUARANTY-INSTRUCTIONS. 1. Where a merchant refused to sell goods on credrefusal the father of the person to whom credit it to a person desiring such credit, and after such had been refused directed the merchant to furnish the goods as requested, and that he would pay for the goods so furnished, and where the goods were furnished upon the faith of that promise, such promise would be an original undertaking, and not within the statute of frauds as a promise to pay the debt of another.1 ise was to see the goods paid for, and upon the faith of such promise the goods were furnished, that the promise would be binding, examined, and held that, if not applicable to the evidence in the case for the reason that the promise was an unconditional one, it was without prejudice. 2. In such a case, an instruction that if the prom (Syllabus by the Court.) Error to district court, Richardson county; BROADY, Judge. Isham Reavis, for plaintiff in error. E. W. Thomas, for defendant in error REESE, C. J. This action was commenced before a justice of the peace of Richardson tiff in error and his two sons, upon an accounty, by defendant in error, against plaincount for goods sold by defendant in error and Conrad, filed for answer a general deto them. William Waters, father of Jacob nial. Jacob and Conrad Waters made no de 1In general, as to what promises are within the statute of frauds as being promises to answer for the debt of another, see Delp v. Brewing Co., (Pa.) Co., (Neb.) 39 N. W. Rep. 844, and note; Miller v. 15 Atl. Rep. 871, and note; Rodgers v. Hardware Lynch, (Or.) 19 Pac. Rep. 845, and cases cited. given, would be an original one, it would be correct. The issue made by the defendant in his answer was that he made no promise either to see the debt paid or to pay it; or, stated differently, the issue presented by him is not as to the kind or character of a promise, but that no promise of any kind was made. If the promise was made, therefore, it was a direct one to pay for the goods. This being so, the instruction could not have injured the plaintiff in error, as he denies mak fense. The cause was removed to the district court by appeal, where it was tried, as between defendant in error and plaintiff in error, to a jury, who returned a verdict in favor of defendant in error for the amount of his claim. There is sufficient in the evidence which was submitted to the jury to sustain a finding by them that plaintiff in error and his two sons resided together upon a farm; that the sons desired credit of defendant in error, who was a merchant, but which was refused unless plaintiff in error would be-ing any promise whatever. The case does come liable for the payment of the debt; that not fall within the rule stated in Morrissey v. he consented to become so liable, agreeing Kinsey, 16 Neb. 17, 19 N. W. Rep. 454, nor to pay the debt; and that the goods were fur- of Rose v. O'Linn, 10 Neb. 364, 6 N. W. nished upon the faith of his promise. The Rep. 430, for the reason that in those cases testimony of Lankford Shafer, son of defend- the credit was not given upon the faith of the ant in error, was to the effect that his father promise. In Morrissey v. Kinsey the contract was unwilling to give credit to plaintiff's for doing the work had been let to a third sons; and that he (the witness,) asked plain- party, for whom Kinsey was laboring. The tiff in error if he would assume the liability, debt was the debt of a third party. The conand he said: "Let the boys have what goods tract of Morrissey was to see that debt paid. they wanted; he would pay for them." It is It was clearly to answer for the default of true that the books show charges made to the another. In Rose v. O'Linn a person had person who obtained the goods, but this is been injured, and to whom, as his surgeon, explained as being for the purpose only of O'Linn had been called. He had traveled a being able to identify the purchaser, should long distance, and had adjusted and set the any question arise as to the sale. We have fractured limb. After this, and after a mano doubt that an agreement of the kind, as terial and important portion of his services is testified to by the witness for defendant in had been rendered, Rose voluntarily stated to error, would constitute an original undertak- him that he would see that he was paid. ing upon the part of plaintiff in error, and There was nothing in the case to show that would not be within the statute of frauds. Dr. O'Linn rendered any services to the inIt was not a promise to pay the debt of an-jured person upon the faith of Rose's promother. The debt did not exist at the time the ise; nor was it shown that the services would promise was made. No reliance was placed upon the credit of the sons of plaintiff in error. No credit was given to them. Sanders v. Classon, 13 Minn. 379, (Gil. 352;) Grant v. Wolf, 34 Minn. 32, 24 N. W. Rep. 289; Maddox v. Pierce, 74 Ga. 838. not have been rendered except for such promise. The instruction under consideration presents quite a different case. As presented to the jury, it was that if plaintiff in error directed defendant in error to let his sons have the goods, which he otherwise would not have done, that he would see that they were paid for; that, if the goods were afterwards furnished on the faith of his promise, the promise would be binding. We think the district court did not err in giving the instruction. No error appearing upon the face of the record, the judgment of the district court is affirmed. The other judges concur. visor, et al. (Supreme Court of Nebraska. Dec. 14, 1888.) COUNTIES-VESTED RIGHTS-MANDAMUS. Upon the trial the court gave the jury the following instructions: "If the jury find, from the evidence, that William Waters told the plaintiff to let his sons have the goods for which this action was brought, and he would see plaintiff paid therefor; and, further, that plaintiff did, upon the faith of such promise, let the sons have such goods,-—then the promise of William Waters was an original promise, and he would be bound thereby." This STATE ex rel. CLARKE v. CATHERS, Superef. & het. Wo instruction was excepted to, and the giving of it is now assigned for error. It is insisted that the rule stated in this instruction is clearly wrong, both as being against the law of the case, and that there was no evidence in the case to which it could legally apply. As we have said, there was sufficient evidence to sustain a finding that plaintiff in error agreed unconditionally to pay for the goods. The instruction ought not to have been given in the language used. But this certainly could work no prejudice to plaintiff in error. If the instruction had been that if plaintiff in error had told defendant to let his sons have the goods, and he would pay for them, that such a promise, being the basis of the credit' 1. A claim by a contractor for the construction of a bridge across the Republican river, in Webster county, was duly allowed by the county board in 1875, and a number of payments made thereon up to the year 1881. In 1884 the contractor and the county board made a computation of the amount still due such contractor, which was found to be $1,605.71. Held, that this was not the allowance of a new account, but the determination of the balance remaining due on a claim allowed in 1875, after deducting all payments. authorizes the disallowance of claims after they 2. Whatever effect the statute of 1879, which are allowed, may have, it can only apply to claims allowed since the act took effect, and cannot de |