the notes all belonged to Davis, and that Cheney did not own any of them. I remember there was a deposition of E. F. Warren to the effect explaining how he came to make the mistake. i think I saw what purported to be the original notes and mortgage. I can scarcely tell wheth. er I think I saw this note,-whether it was the same note; it has been some 7, 8, or 9 years ago. I cannot say whether the end of the note was clipped off at that time, as my attention was not called to that fact. On cross-examination stated: "No, sir; I do not swear that I saw this identical note. As to that identical note I am not positive. It is my impression it is the same note. "I S. P. Davidson, sworn for defendant: "I was associated with Appelget as attorney for defendant in Davis v. Maria Stone. I remember the case was brought upon a $1,000 note. There was either a second suit by Cheney, or else it was a crosspetition, in which Cheney claimed to be the owner. At any rate it resulted in the filing of this kind of a bill, a copy of which has been offered in evidence. I saw what purported to be the original notes and mortgage on file in the case attached to the deposition, I think, of E. F. Warren." On cross-examination said: can only state this: That what purported to be the original notes and the mortgage I saw on file, I can only say that the note I saw and the mortgage I saw were what purported to be the original notes and mortgage covering this land. I am well satisfied that the notes were in the handwriting of P. D. Cheney, and the written portion of this note is in his handwriting, and that is Mrs. Stone's signature. I know that if that note had been clipped off in this manner, that I or anybody else would have noticed it at that time. Defendants' Exhibit C-copy of amended bill, filed May 14, 1878, in United States circuit court in William G. Davis vs. Maria Stone and B. F. Stone-alleges that Stone executed mortgage on land in controversy to secure $1,000 and 10 per cent. interest therein described; that said Stone also executed to P. D. Cheney five notes for $70 each, and executed mortgage on land in controversy to secure same; that all said notes and mortgages were dated July 16, 1872. Alleges that the five $70 notes were assigned by Cheney to Davis. The court below found for the defendants, and entered judgment for costs. appeal to this court, at the September term, 1889, the judgment of the district court was affirmed. 28 Neb. 137, 44 N. W. Rep. 105. Subsequently a rehearing was had on the application of the appellant on the grounds: First. The incompetency of the evidence admitted to establish the usury set up by appellee. Second. By their release of defense, appellees are estopped from setting up usury. Third. The appellant cannot be prejudiced by any proceedings in the United States court in Davis v. Stone. On an It was stipulated on the trial, as appears of record, "that if the witness B. F. Stone were present he would testify that the entire consideration for which the note and mortgage were given was for usurious interest on a loan of money from Byron Murray, Jr., and that the statement of what this witness would swear to may be used as evidence on the trial of the case. No evidence was offered contra, but, as the stipulation provided that "it is further agreed that the notes and mortgage set out in the petition were made as there set out, and are true and correct," it became the privilege of the appellant to introduce this agreement as evidence, which he did. On this question the court said in its opinion: "While it is true that, had the witness been called to prove the fact of usury, and objection been made to the method of proof, he would have been required to state the facts from which conclusions could have been drawn; but no objection was offered to the stipulation upon that ground. It was accepted as proof of the fact of usury. No effort was made to prove differently, and it must now be accepted as true." It was held in Bennett v. Rogers, 12 Neb. 384, 11 N. W. Rep. 314, that "where proof, as well as pleading, is of a doubtful, as well as equivocal, character, it must be construed least favorably to the party offering it;" and in Holland v. Griffith, 13 Neb. 474, and 14 N. W. Rep. 387, that, "a paper clearly inadmissible under the pleading having been put in evidence by the plaintiff, he was bound by its provisions." It has been repeatedly held, where doubtful testimony was allowed to go to the jury without objection, and an adverse ruling without exception, the error was not subject to review in this court. Dutcher v. State, 16 Neb. 31, 19 N. W. Rep. 612; Fager v. State, 22 Neb. 332, 35 N. W. Rep. 195. Nor can error be predicated upon evidence introduced without objection. Railroad Co. v. Wiebe, 25 Neb. 543, 41 N. W. Rep. 297. The evidence complained of having been offered by the plaintiff, without contradictory testimony, is an admission of usury as the consideration of the note and mortgage sued upon; and, added to the fact of the introduction of the stipulation by the party complaining, it contains the agreement that it shall be used in evidence, which preciudes the appellant from urging reversible error in this court. As to the second ground of reversal, we find no proof of the execution of the release of defenses to the cause of action. There is evidence tending to prove that it was not signed at the time nor immediately after the notes and mortgage were executed. The burden of proof was, therefore, upon the plaintiff to establish the relinquishment, as its simple presence, with the notes and mortgage, was not proof of its execution by the parties. A rule of law to be regarded in this instance is that the release, if signed and delivered with the notes and mortgage, instead of working an estoppel, is sufficient to excite suspicion, and put a purchaser on such an inquiry as to lead to the discovery of the usury. 1 Daniel, Neg. Inst. 862; Jaqua v. Montgomery, 33 Ind. 36. As to third ground, testimony was admissible to contradict that of the plaintiff's purchase and ownership of the note and mortgage, and his ignorance of the usurious consideration. For this purpose the bill exhibited by Davis against Stone in the United States circuit court on May 14, 1878, for the collection of the same note and mortgage now sued on, according to the weight of evidence in the case, was strongly presumptive against the plaintiff's testimony. It appeared from the bill to have been the same note and mortgage; and, while the mortgage was not produced, the note was, but in such a trimmed and torn condition as to corroborate the fact of another and different ownership. The court held, therefore, that the burden of proof was upon the appellant to show that he was an innocent purchaser for value before maturity, and without notice of usury, which he had signally failed to do. The former opinion of the court is adhered to. Judgment accordingly. The other judges con 1. Instructions to the jury that "a reasonable doubt is an actual, substantial doubt, arising from the evidence or want of evidence in the case," held not error. 2. Evidence examined, and held to sustain the verdict. (Syllabus by the Court.) Error to district court, Dakota county; NORRIS, Judge. Indictment of Phineas Langford and George Cassman for robbery. Verdict of guilty. Defendants bring error. Affirmed. Jay Bros. and M. C. Beck, for plaintiffs in error. Wm. Leese, Atty. Gen., for the State. COBB, C. J. In error to the district court of the county of Dakota. The plaintiffs in error, Phineas Langford and George Cassman, were charged by the information of the county attorney, in the district court of said county, under section 13, c. 4, of the Criminal Code of this state, entitled "Robbery," with unlawfully and forcibly, on February 18, 1890, in the town of Covington, in said county, as saulting C. P. Hendrickson, and by force and violence taking and stealing from his person $17 in gold and silver coin of the United States. On the day of bringing this information into court,-February 24, 1890,-copies were served on the prisoners. On the 26th following they pleaded not guilty, and on the 28th following were tried before a jury, and on March 1st were found guilty, and on the 7th following were sentenced to hard labor in the penitentiary of this state for the term of four years. The prisoners were defended by able counsel, who bring their client's conviction to this court for review. 1. As to the correctness of the third instruction of the court to the jury in its definition of a "reasonable doubt" as to the guilt of the prisoners. The opinion in Cowan's Case, 22 Neb. 519, 35 N. W. Rep. 405, cited by counsel, that the third instruction is erroneous, found error in the charge that "a reasonable doubt was such, for having which the jury can give a reason, based upon testimony." The charge of the court below, that "a reasonable doubt is an actual, substantial doubt, arising from the evidence or the want of evidence in the case," we do not hold to be misleading in the restricted sense of the instruction cited in Cowan's Case. It is more comprehensive and impartial, and, we think, without error. A more extended argument is submitted to show the error of instruction 4 to the jury: "That, if they find from the testi mony that the defendants, Cassman and Langford, or either of them, together with the complaining witness, Hendrickson, were in the town of Covington at the time stated in the information; that they were together in a saloon in said town, and that, after leaving the saloon, the defendants followed the complaining wit ness, and took hold of him and threw him down and took from him money of any value, against his consent, they are guilty of robbery." An examination of the record does not show that exception was taken at the trial to this instruction. On that ground alone it would not be reviewed with any probability of reversal on the ground of absence of an intent to steal. But the testimony, we think, shows plainly an intent to steal, and that the jury were fully justified in finding under this charge that the robbery was only committed with that intent, which was carried out. If the evidence was sufficient in the minds of the jury to show that the prisoners were guilty, the manner in which the robbery was done is sufficient of itself to prove the intent to steal. 2. The record shows that after the jury had been impaneled and sworn, but prior to opening the prosecution to the jury, and before the swearing of witnesses for the prosecution, the prosecuting attorney discovered that the names of three witnesses indorsed on the information bad not been repeated on the copy delivered to the prisoners. On motion, the trial was adjourned for a day for the purpose of giving the prisoners the statutory 24hours notice of the witnesses to be called to accuse them. The court granted leave to indorse the names of witnesses on the information; but it is not shown what names, or whether they were in fact so indorsed by the county attorney. But it does appear that the names of witnesses Belcher, Williams, and Mehan for the state had been indorsed on the information, but not repeated on the prisoners' copy. Their testimony only tended to prove that the prisoners and their accuser, who had been robbed, were in company together during the evening and up to the hour of the robbery. No issue or objection was raised upon this question, both prisoners testifying on a direct examination to being in company with Hendrickson at the times and places alleged, but denying the robbery. In all of this we see no prejudicial error. 3. The court permitted the jury to separate after being impaneled and sworn, under the adjournment of 24 hours' notice to the prisoners of the names of the prose cuting witnesses mentioned in the second assignment of errors considered. Section 484 of the Criminal Code of this state provides that, "if the jury are permitted to separate during the trial they shall be ad. monished by the court (as to their duties) until the cause is finally submitted to them." It is not alleged that the jury were not so admonished, or that they failed to comply with their duty, so that no error appears from the third assign. ment, and none appears in the record of the trial of the prisoners before us. The sentence of the district court is affirmed. The other judges concur. PRALL V. PETERS et al. (Supreme Court of Nebraska. Sept. 16, 1891.) PLEADING-GENERAL Denial. 1. Under the Code a general denial goes only to every fact stated in the petition which the plaintiff is under the necessity of proving in order to sustain his cause of action. 2. New matter of any kind, which constitutes a partial or entire defense to a cause of action, must be pleaded in the answer to be available as a defense. (Syllabus by the Court.) Error to district court, Valley county; TIFFANY, Judge. Action for damages for false representations by one Peters and another against one Prall. Verdict and judgment for plaintiffs. Defendant brings error. Affirmed. Darnall & Babcock and Moon & Bragg, for plaintiff in error. A. M. Robbins, for defendants in error. MAXWELL, J. This action was brought by the defendants in error against the plaintiff in error to recover damages for false representations in the sale of a stallion. The answer is a general denial. On the trial of the cause the jury returned a verdict in favor of the defendants in error for the sum of $301. A motion for a new trial was thereupon filed, and overruled, and judgment entered on the verdict. The attorneys for the plaintiff in error claim a reversal of the judgment upon three grounds, viz.: That the petition and evidence show that the defendants in error have only given their notes for the horse, and have not paid the same, and hence have suffered no damage; second, that the defendants in error had full knowledge of the condition of the horse when they purchased the same; and, third, that Charles Peters, Jr., was a minor, and was permitted to maintain the action in his own name. None of these questions can be considered. A general denial under the Code simply puts in issue the truth of the facts alleged in the petition. If the defendant relies upon any matter besides a denial, he must plead the same. This is necessary in order that the plaintiff may be apprised of the defense, and be prepared to meet it. A defendant cannot be permitted to conceal an affirmative defense under a general denial. The due administration of justice requires the courts to adhere strictly to the requirements of the Code that all affirmative matters of defense shall be pleaded, and, unless so pleaded, will not be considered. The provisions of the Code are not merely directory; they are imperative, and do not leave it optional with the defendant to plead new matter or not. If he would avail himself of new matter as evidence, he must plead the same in his answer. Railroad Co. v. Washburn, 5 Neb. 124. In the case cited GANTT, J., says, (page 125:) "Under the statute there is no general issue. According to the meaning as applied to it by the rulings under the departure referred to above, it is simply a general denial of all the material allegations stated in the petition, which the plaintiff would be required to prove to make out his cause of action. In McKyring v. Bull, 16 N. Y. 308, this question is very elaborately and ably discussed, and it is beld that "the word 'defense,' as used in the Code, must include partial as well as complete defenses," and that the law should "be construed so as to require the defendants in all cases to plead any new matter constituting either an entire or partial defense, and prohibit them from giving such matter in evidence upon an assessment of damages when not set up in the answer." In Piercy v. Sabin, 10 Cal. 27, after stating that all new matter of defense must be pleaded, the court say that "this feature of the Code is one of the most beneficial and obvious improvements upon the former system. This classification of defenses is simple, logical, and just. Each party is distinctly apprised of all the allegations to be proven by the other, and each is therefore prepared to meet the proofs of his adversary." Pier v. Finch, 29 Barb. 170; Walton v. Minturn, 1 Cal. 362. The petition does show that the plaintiff in error made false representations in regard to the horse, and that the defendants in error relied upon the same; and the proof fully sustains the petition, and that the damages are not excessive. There is no error in the record, and the judgment is affirmed. The other judges concur. ALDEN V. WRIGHT et al. (Supreme Court of Minnesota. Sept. 30, 1891.) DECEIT-EVIDENCE-MEASURE OF DAMAGES. 1. A party cannot sustain an action for deceit where no harm has come to him. Deceit and injury must concur. 2. The plaintiff exchanged certain real property for shares of stock held by defendants in a corporation. Held, that in an action for deceit, brought by him, the proper measure of damages was the difference in value between the shares change for the same. and the property conveyed by plaintiff in ex 3. Held, further, that there was no reversible error committed by the trial court in its charge to the jury in respect to the alleged insolvency of the corporation. (Syllabus by the Court.) Appeal from district court, Hennepin county; HICKS, Judge. Action for deceit by Albert M. Alden against Charles A. Wright and another. Judgment for defendants. Plaintiff appea's. Affirmed. Benton & Roberts and Rome G. Brown, for appellant. Weed Munro, (D. H. Secombe, of counsel,) for respondents. COLLINS, J. The verdict in this action was for defendants, and plaintiff appeals from an order denying a new trial. From an examination of the bill of exceptions it is obvious that the testimony upon all of the main features of the controversy was very conflicting, and would have justified a verdict for either party. The appellant does not contend that the verdict was unsupported by the evidence, but claims that the court committed several errors when charging the jury. It is necessary to consider but two of the assignments of error. The action was for deceit. The plaintiff exchanged certain real property with defendants for shares of stock held by each in a corporation, aggregating 72 in number, of the face value of $100 a share. He claims false and fraudulent representations on the part of the defendants as to the value of the shares, whereby he was induced to part with property of the value of $7,200 for the same. He also avers that the shares of stock were valueless, by reason of which he was damaged in a stated sum of money, for which judgment was demanded. 1. On the trial there was no attempt to show the market value of the stock, but testimony was produced as to its intrinsic worth. There was also testimony introduced by the plaintiff that the corporation was "insolvent," and, at defendants' request, the jury was charged as to what would render it "insolvent for the purposes of this action." The defendants' request, numbered 9, on this point, appears to have been an attempt to state what would constitute insolvency under the insolvency statutes; and, although the plaintiff excepted to the giving of the request when it was first submitted to the court, evidently under Gen. Laws 1883, c. 57, § 1, it appears to have been modified in the charge so as to correspond with what were then the plaintiff's views. From an examination of the requests, the charge, and the exceptions, it seems to us that all parties went somewhat astray on the question of insolvency and its bearing and importance in t' determination of the issues herein. The fact-if it was capable of demonstration-that the corporation was insolvent under the statute when plaintiff took the shares of stock, would undoubtedly have a bearing upon the important question, which was as to the real value and worth of the shares. This would have to be established by showing the amount and value of the corporate assets, the extent of its liabilities, and the general condition of the business it was transacting. A corporation might be insolvent under the insolvency laws of the state, and yet its shares of stock be worth their par value or more. This fact appears to have been overlooked; but we see no error in the charge in respect to insolvency, which was reached by plaintiff's exceptions. 2. At defendant's request the court charged the jury, in substance, that they must find for defendants, unless it appeared by a preponderance of testimony that the property conveyed by plaintiff in exchange for the shares of stock was worth more than the latter; and to this plaintiff excepted on the ground that it prevented the jury from returning a verdict in his favor for nominal damages; that, even if the jury should fail to find that the property conveyed by plaintiff was of greater value than the shares of stock transferred to him,-passing on all other questions in his favor,-they might award him nominal damages at least; and that the possibility of such an award was excluded by the charge. But. at plaintiff's request, the jury was instructed that, if they found for him, the amount he would be entitled to recover would be the amount of the difference between the actual value of the property which he conreyed and the actual value of the stock received by him. The rule as to the measure of damages in the case was stated in better form in plaintiff's than in defendants' request, but one was, in effect, a repetition of the other. The rule was correctly stated in each, and the same proposition of law was elsewhere in the charge laid down by the court in very concise and proper, but different, language. The essential elements which constitute a cause of action for deceit are well stated in Busterud v. Farrington, 36 Minn. 320, 31 N. W. Rep. 360, and one is that the party induced to act has been damaged. He must have acted on the faith of the false representations to his damage. A party cannot sustain an action of this character where no harm has come to him. Deceit and injury must concur, (Doran v. Eaton, 40 Minn. 35, 41 N. W. Rep. 244;) or, as it has frequently been put by the courts, fraud without damage or damage without fraud will not sustain the action for deceit, (Taylor v. Guest, 58 N. Y. 262; Nye v. Merriam, 35 Vt. 438; Freeman v. McDaniel, 23 Ga. 354; Byard v. Holmes, 34 N. J. Law, 296; 3 Suth. Dam. 594; Cooley, Torts, 474: Bailey, Onus Probandi, 770.) If, therefore, the shares of stock were worth what plaintiff gave for them, were of equal value with the property exchanged, the plaintiff was not damaged, and was not entitled to recover; for the proper measure of damages was the difference in value between the shares of stock and the property conveyed by plaintiff for them. Redding v. Godwin, 44 Minn. 355, 46 N. W. Rep. 563, and cases cited. The plaintiff, under such a rule, would not be permitted to recover nominal damages even without proof of loss or injury, and there is nothing said in Potter v. Mellen, 36 Minn. 122, 30 N. W. Rep. 438, as counsel has contended, indicating a contrary view. Damage is of the essence of the action of deceit; an essential element to the right of action, and not merely a consequence flowing from it. Order affirmed. STEWART CHUTE LUMBER Co. v. MISSOURI PAC. RY. Co. et al. (Supreme Court of Nebraska. Sept. 22, 1891.) MECHANIC'S LIEN-MATERIAL FURNISHED RAILROAD CONTRACTOR. Lumber sold to a subcontractor on a railway, for the erection of shanties for his employes and stables for his teams, is not within the statute granting a lien for labor performed or material furnished in the construction, repair, and equipment of the railroad, and gives no right of action against the railway company. Stewart Chute Lumber Co. v. Missouri Pac. Ry. Co., 28 Neb. 39, 44 N. W. Rep. 47, overruled. COBB, C. J., dissenting. (Syllabus by the Court.) On rehearing. MAXWELL, J. An opinion was filed in this case in 1889, which is reported in 28 Neb. 39, 44 N. W. Rep. 47, the judgment of the court below being reversed, and judgment entered in this court for the plaintiff. As that decision was rendered by a divid ed court, a motion for a rehearing was sustained, and the cause is again submitted to the court. The facts, in brief, are these: One Marcus Cavanaugh was a subcontractor on the Missouri Pacific Railway in the construction of that road from Weeping Water to Lincoln, and purchased from the plaintiff building material to the amount of $296.19, for the construction of shanties for the persons employed by him on his subcontract, and also for the construction of stables for the teams used by said employes in grading the road. The shanties and stables had no connection whatever with the railway. Under this state of facts, can the plaintiff enforce its claim against the railway company for the amount of Cavanaugh's debt? Section 1, art. 2, c. 54, Comp. St., provides "that whenever any laborer upon any railroad, canal, viaduct, bridge, ditch, or other similar improvement in this state shall have just claim or demand for labor performed on any such railroad, canal, bridge, ditch, viaduct, or other similar improve. ment against any person or persons who are, or any company which is, a contractor on such railroad, canal, viaduct, or bridge, or against any person or persons who are subcontractors with any person or persons or company contracting with any such railroad, bridge, viaduct, or ditching company for the construction of any part of such railroad, bridge, canal, viaduct, or ditch of any such company, every such railroad, canal, bridge, or ditch company shall be liable to pay such laborer the amount of such claim or demand, with 10% interest thereon: provided, such laborer shall have given notice within sixty days after the last item of labor shall have been performed that he or she has such claim or demand. Such notice shall be given in writing, and shall specify the peculiar nature and amount of the claim or demand, and shall be delivered to the president or vice-president, superintendent, agent, or the managing director or chief engineer of any such company, or to the engineer of any such company, or to the engineer in charge of that portion of the work, or any portion of the railroad, v.49N.w.no.17-49 canal, viaduct, bridge, or ditch upon which such labor is performed. Sec. 2. When material shall have been furnished or labor performed in the construction, repair, and equipment of any railroad, canal, bridge, viaduct, or other similar improvement, such labor and material man, contractor, or subcontracto: shall have a lien therefor, and the said lien therefor shall extend and attach to the erections, excavations. embankments, bridges, road-bed, and all land upon which the same may be situated, including the rolling stock thereto appertaining and belonging, all of which, including the right of way, shall constitute the excavation, erection, or improvement provided for and mentioned in this act." The lien is given for material which "shall have been furnished or labor performed in the construction, repair, and equipment of any railroad." These words do not include lumber, material, or labor which was not performed or furnished in the construction, repair, or equipment of the road. If this were not so, there would be no limit to the liability of a railway company. If, by a strained construction of the statute, the company is held liable for material used for shanties, it would, by the same rule, be liable also for food and clothing for the employes, and feed for the teams; and it would be difficult to tell where its liability would cease. The lien is created by statute, and, independently of that, no cause of action exists against the company The question here presented was before the supreme court of Michigan in Dudley v. Railway Co., 32 N. W. Rep. 885, and it was held that debts incurred for the board and clothing of hands employed in constructing the railroad, and feed for teams used in that business, do not come within the provisions of the statute, and cannot be enforced against the railway company. That decision, in our view, is correct. It follows that the judgment heretofore rendered by this court is reversed, and the judgment of the court below affirmed. The relator brought an action in the district court of F. county against the said county, and the individuals constituting the county board thereof, alleging in his petition that the said county had unlawfully dug a ditch, by means of which the water which falls onto about 1,000 acres of land, and formerly found its way into a large number of sags, swamps, and low places thereon, was discharged onto the lands, farm, and homestead of the relator, which was on a lower level, etc., with prayer for an injunction and for general relief. The district court made and entered a decree perpetually enjoining the respondents from discharging any of the water which accumulated in the sags, and swamps on the lands described in the said petition, by means of ditches or otherwise, excepting the nat |