cordingly included in its verdict $14.31 as interest. This instruction was erroneous. The plaintiff's demand was not within either the letter or the spirit of the statute (Shannon's Code, 3494) enumerating the debts that bear interest as a matter of law. Indeed, it was not for a debt at all, but only for damages. None of the other assignments of error are well taken.

Plaintiff may remit the $14.31, and have an afirmance as to the balance of the judgment; otherwise, a reversal will be entered.

A motion to modify the judgment elicited the following response:

Accepting the alternative suggested in the opinion delivered in this case on a former day of the term, the Southern Seating & Cabinet Company remitted the item of $14.31 interest, and took an affirmative as to $180, the amount of damages found below. The entry thereof, made on the minutes of the court, concludes with an adjudication of all costs against the railroad company; and the railroad company now asks the court to modify that entry, and adjudge the costs of

the appeal in error against the Southern Seating & Cabinet Company. The modification is asked upon the ground that "an appeal was necessary to get rid" of the effect of the erroneous instruction on the subject of interest. Had the railroad company acquiesced in the recovery of $180 damages, and limited its appeal in error to the item of interest alone, it would undoubtedly be entitled to the modification sought, for in that event it would have been the successful party, in the fullest sense; but having brought the whole case up, and been unsuccessful as to everything except the small item of interest, and that item being eliminated by release, the other party is successful, and, being so, is entitled to recover costs. If this were a suit in chancery, the court might, in its discretion, adjudge a part of the costs against each party, on the ground that the recovery below has been decreased here. That course, however, though often pursued in equity causes, is not allowable in a law case, like that now before the court. The motion to modify is overruled.

1.

NEBRASKA SUPREME COURT.

Henry E. CLIFFORD, Piff. in Err.,

v.

HALL COUNTY.

(........Neb........)

Under the provisions of § 20, chap. 19, Comp. Stat. 1899, the various reports of the supreme court, distributed and received by the county judges of the different counties of the state, as therein mentioned,

belong to the office, and not to the individual; the right of possession and custody thereof being in the incumbent of the office, and

officer.

passing from the outgoing to the incoming 2. A county, as a municipal corporation, has no such interest in, or right of possession to, the reports of the supreme court, distributed to county judges in accordance with law, as will authorize it to maintain replevin proceedings against one who

wrongfully retains possession of the same.

(September 19, 1900.)

ERROR to the District Court for Hall
County to review a judgment in favor
of plaintiff in an action brought to recover
possession of certain books which had been
placed in possession of defendant as county
judge. Reversed.

The facts are stated in the opinion.
Mr. Henry E. Clifford in propria per-

Holcomb, J., delivered the opinion of the court:

The plaintiff in error, defendant in the trial court, for three terms, of two years each, was the county judge of Hall county, the defendant in error. At the expiration of his term of office, he retained possession of eighteen volumes of the Nebraska Reports, received by him in his official capac ity as county judge, during his terms of office as aforesaid. The county demanded possession of the books as owner thereof, which was resisted by the defendant, and tuted. The essential facts are stipulated replevin proceedings were thereupon instiby the parties. It is conceded that the property in controversy came into the possession of the defendant as county judge, and during his incumbency of the office as such, under the provisions of § 20, chap. 19, Comp. Stat. 1899, which reads as follows: "The Supreme Court Reports shall be deposited in the state library. Copies thereof shall be distributed to each judge of the supreme, district, and county court, to each

state and territorial library, to each officer of the executive department of this state, and to each judge of the United States district and circuit courts of this state; and to the library of Congress, two copies... A proper construction of the provisions of this section, as affecting the office mentioned, is all that is necessary in determining the case. In doing this, we have endeavored to apply only the general rule as to construction of statutes, and give to the language used its plain and obvious meaning. In State ex rel. School Dist. No. 6 v. The above case seems to be one of Moore, 45 Neb. 12, 63 N. W. 130, it is said: first impression.

sona.

Mr. Fred W. Ashton for defendant in

error.

Headnotes by HOLCOMB, J.

NOTE.

"In the interpretation or construction of

of the offices for the state in which the title remains undevested. That question is not before us, and it is unnecessary to determine it. Certain it is that the county judge, as between himself and all others except the property, and a possessory title sufficient to maintain an action for the recovery of the possession from those wrongfully withhold

statutes, ascertainment of the intention of | be held and kept in trust by the incumbents the legislature is the end or purpose to be accomplished." It appears clear to us that the legislature intended to distribute, and possibly donate, these reports to the several officers named, in an official, and not individual, capacity; that the books are distrib-state, has the right to the possession of such uted or allotted to the different offices of county judge, to be used by the person occupying the office, as fully and effectually as it was clearly its intention to have like cop-ing the same. It is probably also true that ies donated to the various libraries therein specifically mentioned. In Follmer v. Nuckolls County Comrs. 6 Neb. 204, in the second paragraph of the syllabus, the following language is used: "As a primary rule, the intention of the legislature is to be collected from the words. If the words are not explicit, it may be gathered from the occasion and necessity of the law. Words are to be interpreted with reference to the general object and scope of the statute." Itize it to maintain an action in replevin for is to be presumed that the legislature intended to serve some wise and beneficial purpose when making the provisions which it did upon this subject. It certainly would require a difficult and uncertain process of reasoning to arrive at the conclusion that the legislative intendment was that each officer temporarily filling the different positions for which provisions are made in such section should have at his command only that portion of the complete set of the reports which happen to be published while he was in office. These publications serve their highest degree of usefulness only when all the volumes issued up to any given time are collected and arranged consecutively in one library, and it is evident that the legislature so intended.

It is not necessary for us to here determine whether it was the intention of the legislature to make a donation outright to the several offices of county judge throughout the state, or to distribute such books to

the obligation of a retiring county judge to
turn over to his successor in office, with the
other property belonging thereto, all of the
Supreme Court Reports received during his
term of office, may be enforced by other ap-
propriate proceedings brought for that pur-
pose. We are of the opinion, however, that
the county, as a municipal corporation, has
no such interest in, or right of possession
to, the property mentioned, as will author-
the recovery of the possession. If the
county has such title as would authorize it
to maintain replevin to recover possession
thereof, it would logically and legally fol-
low that, its right to the property being
thus established, it might retain the posses-
sion of the books for the use of its county
commissioners, or turn them over to the
county attorney, or some other officer not
contemplated by the statute under consid-
eration, or make other use of its possession
thereof, and thus defeat the object of the
statute. For these reasons, the county can-
not maintain its action in the present case,
and the judgment of the lower court must
be reversed, and the case dismissed.
have deemed it incumbent upon us to ex-
press our views as to a proper interpreta-
tion of the statute under consideration
more fully than otherwise might seem ap-
propriate because of the public interest in-
volved in a controversy of this character.
Reversed and dismissed.

ILLINOIS SUPREME COURT.

We

CHICAGO GENERAL RAILWAY COM-APPEAL by plaintiff from a judgment of

PANY, Appt.,

v.

CHICAGO CITY RAILWAY COMPANY.

(186 Ill. 219.)

The propulsion of street cars by cable power, under a charter which gives the right to operate them only by animal power, will not render the company liable, irrespective of its negligence, for a collision with electric street-railway cars owned by another company, since any abuse of the franchise of the former company is a matter which concerns the public only.

(June 21, 1900.)

NOTE. As to the motive power of street railways, see also Indianapolis Cable Street R. Co. v. Citizens' Street R. Co. (Ind.) 8 L. R. A. 539, and note; Taggart v. Newport Street R. Co. (R. I.) 7 L. R. A. 205; Potter v. Saginaw Union Street R. (Mich.) 10 L. R. A. 176, and

the Appellate Court, First District, affirming a judgment of the Circuit Court for Cook County in favor of defendant in an action brought to recover damages for injuries inflicted upon plaintiff by a street-car collision. Affirmed.

The facts are stated in the opinion.
Mr. Glenn E. Plumb, for appellant:

The appellee's charter forbids it to operate its cars in the state by any other than animal power.

People ex rel. Moloney v. Pullman's Palace Car Co. 175 Ill. 136, 51 N. E. 664; Com. v. Erie & N. E. R. Co. 27 Pa. 339, 67 Am. Dec. 471; Indianapolis Cable Street R. Co. v. Citizens' Street R. Co. 127 Ind. 369, 8 L. | note; Re Third Ave. R. Co. ( N. Y.) 9 L. R. A. 124; Hudson River Teleph. Co. v. Watervliet Turnp. & R. Co. (N. Y.) 17 L. R. A. 674 ; State ex rel. Roebling v. Trenton Pass. R. Co. (N. J. L.) 33 L. R. A. 129; and Hooper v. Baltimore City Pass. R. Co. (Md.) 38 L. R. A. 509.

R. A. 548, 24 N. E. 1054, 26 N. E. 893; People ex rel. Third Ave. R. Co. v. Newton, 48 Hun, 477, 1 N. Y. Supp. 197, 112 N. Y. 396, 3 L. R. A. 174, 19 N. E. 831; Denver & S. R. Co. v. Denver City R. Co. 2 Colo. 673; Farrell v. Winchester Ave. R. Co. 61 Conn. 127, 23 Atl. 757; Haines V. Twenty-second Street & A. Ave. Pass. R. Co. 1 Pa. Dist. R. 506; North Chicago City R. Co. v. Lake View, 105 Ill. 207, 44 Am. Rep. 788.

The operation of cable trains in a public highway by a corporation not authorized by its charter to so occupy the highway constitutes a nuisance.

Starr & C. Rev. Stat. chap. 38, par. 369, § 5; 1 Shearm. & Redf. Neg. 5th ed. § 365; General Electric R. Co. v. Chicago & W. I. R. Co. 84 Ill. App. 640; Denver & S. R. Co. v. Denver City R. Co. 2 Colo. 673; North Chicago City R. Co. v. Lake View, 105 Ill. 213, 44 Am. Rep. 788; Congreve v. Smith, 18 N. Y. 79; Renwick v. Morris, 3 Hill, 621, Affirming 7 Hill, 575; Dygert v. Schenck, 23 Wend. 446, 35 Am. Dec. 575; Weick v. Lander, 75 Ill. 96; Com. v. Erie & N. E. R. Co. 27 Pa. 339, 67 Am. Dec. 471; Louisville, N. A. & C. R. Co. v. Smith, 91 Ind. 119.

One who sustains a special injury because of the existence or maintenance of such a nuisance in a street can recover his daniages from the person maintaining or creating the nuisance.

| said railway cars on said tracks in and along State street under and by virtue of an ordinance of the city council of the city of Chicago adopted in 1858, and extended for a further term of years (but not otherwise affected) by another ordinance of the said city adopted in 1883; that said original ordinance of 1858 provided that the cars to be operated by the appellee company upon the said tracks in and along State street should be propelled "with animal power only," and the declaration also averred that the authority of the appellee company was limited by the charter granted to it by the state; as well as by said ordinance of the city of Chicago, to the operation of cars along its railway in State street "by animal power only;" that said State street intersects said Twenty-second street at right angles; that on said 15th day of October, 1897, said appellee company, in violation of the provisions of its charter and said ordinances of the city of Chicago, was operating on its said tracks on said State street a train of three cars by means of an underground cable propelled by steam engines of great power, at a high rate of speed, to wit, 20 miles per hour; that the cars composing the said train were much larger and heavier than cars to be "operated by animal power only," and that such excess of weight was, to wit, 20 tons, and that the excess of speed was

Shearm. & Redf. Neg. § 365, supra; Far-12 miles per hour; that the momentum of a mcrs' Co-op. Mfg. Co. v. Albemarle & R. R. Co. 117 N. C. 579, 29 L. R. A. 700, 23 S. E. 43; Lincoln Rapid Transit Co. v. Nichols, 37 Neb. 332, 20 L. R. A. 853, 55 N. W. 872. Mr. George Gillette, with Mr. E. R. Bliss, for appellee.

Boggs, Ch. J., delivered the opinion of the court:

The circuit court of Cook county adjudged the declaration filed by the appellant company against the appellee company in an action on the case to be obnoxious to demurrer. The appellant elected to abide its declaration, and the court entered judgment against appellant for costs. This is an appeal from the judgment of the appellate court affirming that of the circuit court.

The declaration was in case, and contained five counts, but the third count was abandoned in the appellate court. In the view we have taken of the declaration, the slight differences between the remaining counts are unimportant. The material allegations of each of said remaining counts are that on the 15th day of October, 1897, the appellant company was duly authorized by its charter and by an ordinance of the city of Chicago to operate by electricity its line of street-railway cars on its tracks in and along Twenty-Second street, in the city of Chicago; that the appellee company was then and there possessed of certain railway tracks in and along State street, in said city of Chicago, and of certain street cars, which it was then and there operating by means of an underground cable propelled by certain steam engines by it maintained; that said appellee company was operating its

car so operated by cable power is ten times the momentum of a car operated "by animal power only;" that said train of cable cars so without authority put in motion in said State street by the said appellee company, because of the operation thereof by cable power, and because of the excess in weight, speed, and momentum over the weight, speed, and momentum of a car operated "by animal power only," then and there ran into and struck with great force and violence an electric car which the appellant company, with all due care and diligence, and with lawful right and authority so to do, was then moving in and along said Twenty-Second street at the intersection of said Twen ty-Second street and said State street, and injured and damaged said electric car, etc., and inflicted personal injuries on passengers being transported by the appellant company in such electric car, to the damage of the appellant company in the sum of $25,000.

It will be observed there is no allegation that the collision was occasioned by any act of negligence or want of care on the part of the appellee company. The position of counsel for the appellant company is that it appeared from the averments of the declaration that the appellee company was propelling its train of cable cars on the said public street without lawful authority so to occupy the said street with cable cars, and in so doing was a trespasser and intruder upon the street, and that such unlawful occupation of the streets rendered the use of the said State street at the intersection of Twenty-Second street hazardous to the appellant company and others having lawful

cumstances disclosed by the declaration, is to be regarded as rightfully prosecuting the business of operating a line of cable street cars on said State street, and answerable to others than the representatives of the public only for negligence in the manner or mode of transacting its business and operating its trains.

authority to pass along and across said in- | or of powers derived from an ordinance, or tersection of said streets, and constituted a whether, in transacting its business that it nuisance, and made the appellee company li- was authorized by charter and said ordiable to respond to the appellant company nance to transact, it had proceeded confor the special damages shown by the decla- trary to the terms or conditions of said ration to have been suffered by the appel- charter or said ordinance, concerns only the lant company; and that such liability was public. The appellant company, in the ascreated by reason of the existence of said al- sertion of a mere private right, cannot base leged nuisance, and wholly independent of right of recovery on the nonobservance of the question whether the alleged collision such terms and conditions, or on the denial was the result of negligence on the part of of power in the appellee company to exercise the appellee company in the matter of the a power or privilege which the appellee com. management of the train. We do not as- pany is exercising, and is being permitted to sent to this as the correct legal doctrine. It exercise, under the authority or color of a was stated in each of the counts of the dec- grant of power from the state and city. As laration that the appellee company held a to all others than the state or the municicharter from the state authorizing it to en-pality, the appellee company, under the cir gage in the business of operating street cars; that it had been granted an ordinance by the city of Chicago authorizing it to lay its tracks and to operate a line of street cars in and along said State street, and that at the time of the alleged collision it "was operating its trains (on said State street) under and by virtue of such ordinance of the city of Chicago." The tracks of the appel- While the precise question has, so far as lee company were rightfully in the street, we are advised, not been adjudicated by this and it had lawful authority and right to op- | court, the principle involved is clearly recerate street cars on said tracks and across ognized in Rice v. Rock Island & A. R. Co. said intersection of State and Twenty-Sec-21 Ill. 93; Atty. Gen. v. Chicago & E. R. Co. ond streets. Whether a proper construction 112 Ill. 520; Barnes v. Suddard, 117 III. of the charter of the appellee company or of 237, 7 N. E. 477; Cook County v. Great the ordinance "under and by virtue" of Western R. Co. 119 Ill. 218, 10 N. E. 564; which it was operating its trains limited it and Chicago & E. I. R. Co. v. Wright, 153 to the use of animal power, and prohibited Ill. 307, 38 N. E. 1062. The point arose for it to use steam driven cables as a motive determination in Hine v. Bay Cities Consol. power for moving the cars, or whether the R. Co. 115 Mich. 204, 73 N. W. 116. The adoption of that character of motive power action was to recover for injuries inflicted was an abuse of its franchise under the said upon a child by a car operated by the railcharter or ordinance can only be determined way company in a street. The car was moved in a direct proceeding instituted in behalf by electricity, and the lack of authority to of the city or of the public, acting through use such motive power was asserted and liathe attorney general or the state's attorney. bility predicated on such alleged want of The declaration disclosed that the appel-power. It was there said: "We do not lee company possessed the requisite corpo- think this question can be raised in this pro. rate power and capacity to occupy the ceeding. The fact was made to appear that streets with its tracks, and to move street the company did operate its cars by eleccars along such tracks. Whether, in adopt-tricity, and for the purpose of this case the ing the cable system as a motive power, it had exceeded its chartered powers or its privileges as licensee of the city under the ordinance, is a question which concerns the public and the municipality. The appellee company is not answerable to the appellant company for any abuse of its corporate powers or privileges, nor would the public or the city be concluded by an adjudication of the question in an action between private parties. The abuse of its chartered powers, 50 L. R. A.

trial must proceed as though it had the right to do so. If the street-railway company is operating its road contrary to the terms of its franchise, the question could undoubtedly be raised by the city in a proper proceeding; but we do not think the question is involved in this issue." The circuit court correctly ruled that the declaration did not present a cause of action.

The judgment of the Appellate Court is affirmed.

MONTANA SUPREME COURT.

7.
by another, who has mortgaged it, will be
presumed to have held as licensee or tenant
of the mortgagor until the mortgage is fore-

The possessor of a water right owned of the principal