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his two minor children, Harry T. and Albert Livingston; that said family lived during all of said period upon the premises above described; that as soon as the fact of the omission of the name of said Thomas S. Livingston from the deed of the said city of Omaha to said Theodore C. Livingston was known to him the said defendant Theodore C. Livingston offered and agreed either to convey an undivided half interest in said premises to said intestate, or to convey the said premises to the mother of said intestate, said Helen Livingston, to be held in trust by her so long as she should remain upon said premises as a member of said family; that said lat. ter offer was accepted, and said premises were so conveyed to said Helen Livingston by a quitclaim deed, dated January 15, A. D. 1880, and duly recorded in the office of the county clerk of Douglas county, Ne

death. The plaintiff Helen Livingston is the mother, the plaintiff Ella E. Jones is the sister of the whole blood, and the plaintiff Benjamin F. Livingston is the brother of the whole blood, of said Thomas S. Livingston, deceased; the defendants, Theodore C. Livingston, Charles C. Livingston, and Henry Livingston are the respective brothers of the half blood of Bald Thomas S. Livingston, deceased. The said land above described, of which said intestate was seised and possessed of the undivided half interest herein at the time of his death, came to said intestate from his said mother by a deed of quitclaim duly executed and delivered on or about the 30th day of September, 1882. Sald deed was duly recorded in Book 43 of Douglas county Records of Deeds, at page 453. The consideration named in said deed is the sum of one dollar, but in truth and in fact said intes-braska, on the 17th day of January, A. D. tate gave no valuable consideration for said land. Said conveyance was made wholly without any valuable consideration, and was intended by the parties thereto so to be made. Said conveyance was voluntarily made to said intestate by his said mother, Helen Livingston, for no other consideration than her natural love and affection for him. Said land came to said intestate by said deed as a gift from his said mother. Further complaining, the plaintiffs say that by the laws of descent of the state of Nebraska, when any person dies seised of an estate in fee-simple in lands, not having fully devised the same, leaving neither issue nor other lineal descendants, nor widow, nor father, living at the time of his death, said estate descends, în equal shares, to his mother, his brothers and sisters, and to the children of any deceased brother or sister by right of representation," etc. To this petition the defendants answered in part, as follows: "Further answering said petition said defendants allege that said premises originally came to said intestate and to sald defendant Theodore C. Livingston jointly, by purchase from the city of Omaha in the state of Nebraska; that the premises were by said city of Omaha conveyed to said Theodore C. Livingston by a warranty deed dated December 16, A. D. 1879, and duly recorded in the office of the clerk of Douglas county, Nebraska, on the 20th day of December, A. D. 1879, and recorded in Book 29 of Deeds, at page 541; that the consideration of said conveyance was the sum of $450.00; that the said consideration of said conveyance was paid Jointly by said Theodore C. and Thomas 8. Livingston, în equal shares, and that said premises were mutually considered and acknowledged, openly and always, toed money or means of any kind, or in any be their joint property, and were held and treated as such. That both said Thomas S. and Theodore (. Livingston intended to be named in said deed as joint grantees, but that said intestate's name was omitted from said deed by mistake; that from about February, A. D. 1879, to February, A. D. 1882, the family of said intestate consisted of plaintiff Helen Livingston and her husband, Benjamin F. Livingston, Sr., the intestate Thomas S. Livingston, and the defendant Theodore C. Livingston, and

1880, in Book 30 of Deeds, at page 14; that both the said intestate and said Theodore C. Livingston joined in said deed as grantors, and that said deed was without consideration; that from some years prior to said 15th day of January, A. D. 1882, to February, 1882, said Helen Livingston continued to reside upon said premises as a member of said family, during all of which time said Thomas S. and Theodore C. Livingston continued jointly to furnish all the means for the support of said family and all the members thereof, including the said plaintiff Helen Livingston; that means to pay all taxes, insurance, and to make all repairs and improvements on said premises during all this period and during all the time since the purchase of said premises from said city of Omaha as aforesaid, up to the time of the death of said intestate, were supplied and furnished wholly by said Thomas S. and Theodore C. Livingston, jointly, and in equal shares; that in the month of February, A. D. 1882, said Helen Livingston and her said husband removed from said premises to the territory of Dakota, and that at the time, or soon thereafter, said Theodore C. and Thomas S. Livingston both requested her to reconvey said premises to them, but that she at first refused, and was only induced to do so after repeated and very urgent demands; that said Helen Livingston was never seised of said premises; that she simply held the same for a time in trust for said Thomas S. and Theodore C. Livingston, who jointly furnished all the money, and money, aggregating a large amount, to purchase, improve, and maintain the same; that said Helen Livingston did not and could not convey them as a gift to any one; that she never contribut

amount, to the purchase, improvement, or maintenance thereof; and that for all purposes the interest of said intestate in the said premises was acquired by purchase, and not by gift." The plaintiffs, in their reply, deny that the premises were purchased jointly by their intestate and Theodore C. Livingston, and deny that the consideration was paid jointly by them. They also deny that the taxes, insurance, repairs, and improvements on said premises were paid for or provided by said

and carried away," and that he "verily believes that said property is now concealed by P. R. H. on his person or in the dwelling-house in which he stolen, there being no proof that the drafts were resides, he knowing said property to have been stolen, or that the afflant had reason to so believe. A search-warrant was issued and served on H., and the drafts in question produced, whereupon a writ of replevin, issued at the instance of A., was levied thereon, and the criminal proceedings were thereupon dropped. In an action by H. against A. for malicious prosecution, held, that H. was entitled to recover damages, the amount being a question for the jury.

2. A verdict not having evidence to sustain it on a material point will be set aside. (Syllabus by the Court.)

Error to district court, Antelope county; PoWERS, Judge.

pen to make this deed back to them, anyway? Answer. Because Theodore had written these letters to me, as I said before. Q. And the time this was deeded back, Thomas went up to Dakota? A. Yes, sir. Q. What did he come up there for? A. He spoke to me, and said Theodore wanted to put repairs on the house, and wouldn't lay a dollar out unless I deeded it back to him. He said to me whatever arrangements Theodore and I might make would be all right. The Court. Who said that? A. Thomas Livingston. Mr. Powell. Didn't you state a minute ago that you never had any conversation with Thomas about deeding this back? A. Not any here. Q. You did have conversation with Thomas about deeding the land back? A. Yes, sir; that much. Q. That was what he went up to Dakota for? A. He didn't claim so. Q. He had no other business up there that you know of, did he? A. He came up there to see his father and me, he said. Q. He was par- MAXWELL, J. This action was brought ticular to talk about this deed and about in the district court of Antelope county, deeding it back? A. Never, until the night by the plaintiff against the defendant, uphe went away. Q. He thought you had on two causes of action: First, for alleged better deed it back? A. He didn't say malicious prosecution; and, second, for anything about it, whether I had better the alleged conversion of certain drafts or not. Q. What did he say about it? A. which it is claimed the defendant wrongHe said Theodore wouldn't lay out anoth-fully converted to his own use. The aner cent on it unless I would deed it to swer of the defendant is very long, but set them. Q. And he thought you had better out in detail his version of the case, and deed it back? A. He didn't say anything that portion of it relating to the contract, about that. He said whatever arrange- drafts, etc., is as follows: ment Theodore and I might make would be all right."

The clear weight of testimony thus establishes the fact that this property was bought and paid for by Thomas and Theodore jointly, and that the title was placed by Theodore in the name of the mother, to be held by her to protect the interest of Thomas, and until other arrangements were made, and it was not reconveyed to Thomas and Theodore as a gift, but because they were the owners of the property. In other words, it was reconveyed because the property belonged to them, and not because Mrs. Livingston desired to make them a present of it. A gift is a voluntary conveyance, not founded on the consideration of money or blood. 1 Bouv. Law Dict. 633; 2 Bl. Comm. 316; Litt. Ten. 59: Shep. Touch. c. 11. In the case at bar there was a consideration for the deed, the actual ownership by the brothers of the property in question, and the deed, so far as appears, was made to place the legal as well as the equitable title in them. The judgment of the court below, therefore, is unsupported by the evidence, and is reversed, and a decree will be entered in this court in conformity to this opinion. Judgment accordingly. The other judges con

O. A. Williams and O. P. Mason, for plaintiff in error. N. D. Jackson and Allen, Robinson & Reed, for defendant in error.

"Defendant admits obtaining the checks mentioned in plaintiff's petition, not in the precise manner stated, but in the manner hereinafter stated, and avers that he was, at the time of so obtaining said drafts or checks, the sole owner of them, and was entitled to the possession of the same, and the possession by plaintiff of said checks or drafts was unlawful, and plaintiff came in possession of said checks or drafts of defendant in the dishonest, fraudulent, and felonious manner, to-wit: Early in the summer of 1883 plaintiff induced defendant to make plaintiff his (defendant's) agent to buy cattle for him, and allow him to feed and fatten the cattle for him, whereby it was agreed by the parties, plaintiff and defendant herein, that the defendant was to have plaintiff, as his agent, buy about 74 head of extra fine steers, the same to be 3 and 4 years old, except a few extra 2-year old steers might be bought. Plaintiff was to perform the labor, and to devote the time necessary to buying and gathering said cattle, and to bear the expenses, other than the cost price incident thereto, and was, after the collecting of the cattle at his home in Wheeler county, in this state, in the summer of 1883, to graze, feed, and fatten said steers, and made them fine beef cattle ready for the market by the 1st day of June, 1884; and plaintiff was to feed said cattle corn and other food necessary to be used in fattening the same, and bear all expenses incident thereto, and to account to defendant in money for all cattle lost by him; and on the 1st day of June, 1884, defendant was to sell said cattle, and after he had first taken from the proceeds of said sale the original purchase price thereof, and a profit of 35 per cent., the balance of the proceeds of the sale of

est of the plaintiff, and the plaintiff, designing and contriving to wrong and defraud the defendant, did unlawfully and wrongfully take 70 head of said cattle, and convert the same to his own use, and did embezzle the same for that, without the knowledge or consent of defendant. Plaintiff shipped 70 head of said cattle to the city of Chicago, and sold the same, and received for same the sum of $3.627.19, and plaintiff received, as part payment of the abovementioned price of said cattle so sold by him, the 3 checks or drafts referred to in his petition. Said plaintiff being financially irresponsible, and defendant knowing this, and well knowing that a judgment against him for the amount of the value of defendant's interest in said cattle would be unavailing to protect himself against an entire loss of said investment, on the 29th day of May, 1884, at the village of O'Neill, Neb., did ratify the sale of said cattle by plaintiff, and by reason of the

said cattle should be given to the plaintiff | above mentioned of the conditional interherein, in consideration of his services and expenses herein before mentioned. In pursuance of said contract, defendant, by plaintiff, his agent, bought about 76 head of cattle, and delivered them to the plaintiff to fatten as above stated; which plaintiff undertook to do, but performed the same only partially. During the winter of 1883 and '84, in about the month of December, 1883, plaintiff failed to furnish the necessary food for said cattle as he had agreed to do, and asked defendant to furnish food to feed said cattle until about June, 1884, whereupon it was then and there further agreed by and between plaintiff and defendant that defendant would furnish sufficient corn to feed or fatten said cattle; that when said cattle were sold by him, in addition to his first taking from the proceeds of said sale the original price of said cattle and the profits thereon aforesaid, he would also take, before plaintiff should have a part of said proceeds, the cost price of said corn or said food so fur-fact that defendant was the exclusive ownnished by him, the said defendant, to fatten said cattle, together with the amount of two promissory notes, of which the following are copies, to-wit: '$50.00. O'Neill, Neb., Nov. 20, 1883. One day after date, for value received, I promise to pay to the order of M. P. Kinkaid $50.00, payable at Holt County Bank, O'Neill, Neb., with interest at 10 per cent. per annum. P. O., Clearwater, Neb. PARIS R. HIATT & Wife." '$100.00. O'Neill, Neb., Nov. 26, 1883. One day after date I promise to pay to the order of M. P. Kinkaid $100.00, payable at Holt County Bank, O'Neill, Neb., with interest at 10 per cent. per annum. P. O., Clearwater, (No. 66.) P. R. HIATT & Wife.' Said notes having been given to defendant by plaintiff for money borrowed, to be used in buying grain for said cattle, then and there at the time of making said latter agreement, it having been agreed by plaintiff and defendant that the amounts of money for which said notes had been given should be considered as having been directly invested by defendant in corn to be fed to said cattle in the same manner, and upon the same terms and conditions, that he should and was then and there about to undertake to furnish corn to feed said cattle. In pursuance of said second agreement, defendant furnished corn to feed said cattle, which cost him at the market price, and was worth, $500.00; the original cost price of said cattle to defendant was $2,540.00, or about that amount, and the cost of the corn so purchased by defendant was $730.00, which amounts said notes represent; and on the 1st of June, 1884, the day upon which said cattle were, by agreement of plaintiff and defendant herein, to be sold, the interest of defendant in said cattle was the value of the same to the extent of $4,159.00, and the interest of the plaintiff in said cattle was the value of the same less $4.159.00, which interest of plaintiff was secondary, conditional, and subject to the interest of defendant to be first realized as above set forth, and to the absolute exclusion, if necessary, of any interest of plaintiff. On or about the 25th day of May, 1884, the defendant being the owner of said cattle, with the qualification

er of said stock to the extent of $4,159.00, and that plaintiff had realized a smaller amount for the same than defendant's interest therein, and that said plaintiff had previousy converted the other six head of cattle belonging to the defendant to his own use, and never accounted to the defendant for the same, (as hereinafter set forth,) the defendant then and there thereby became the sole and exclusive owner of said checks or drafts referred to in said petition, the same then and there being in the possession of the plaintiff. On the 29th of May, 1884, at and in the county of Holt aforesaid, defendant then and there being the exclusive owner of said drafts or checks, and entitled to the immediate possession of the same, and plaintiff then and there being wrongfully and unlawfully in the possession of the same, the defendant demanded of plaintiff that he deliver up to him said checks or drafts, which the plaintiff refused to do, and ran away, whereupon the defendant then and there immediately swore out a search-warrant, and placed the same in the hands of the sheriff, the following as to words, figures, writing, print, and erasures, being a fac simile of the complaint upon which said search-warrant was issued, to-wit: "The state of Neb., Holt county. The complaint of M. P. Kinkaid of said county, made before me, John P. O'Donnell, a justice of the peace in and for said county, who, being first duly sworn, deposes and says: That on or about the 29th day of May, 1884, in said county, the following described property of M. P. Kinkaid, to-wit: Checks and drafts made payable to the order of Hiatt and Kinkaid, drawn by firms in Chicago, Ill., amounting to $3,627.19, or about that amount; that said property belongs to affiant M. P. Kinkaid was by some person feloniously taken and carried away from said O'Neill city, in said county. Affiant further says he verily believes that said property is now concealed by P. R. Hiatt in his dwelling-house in which he resides, he knowing said property to have been stolen.'" It is unnecessary to notice the reply. On the trial of the cause the jury returned a verdict for the defendant, upon

which judgment was rendered. A large A large | can. Yours, truly, - Rs. PARIS R. number of errors are assigned, the more important of which will be noticed in their order.

The original contract of the parties is contained in the following letters: "Mr. Kinkaid-Sir: Yours of the 2 and 7 just received. In reply I will say that we need a contract or bargain signed by both of❘ us. I am ready for business as soon as you make out your papers authorizing me to buy as your agent for such part of the profits as is named,-all profits above 35 per cent. in figures; steers kept one year and sold fat. Yours, truly, PARIS R. HIATT.' "O'Neill City, Neb., 5–28, '83. P. R. Hiatt, Esq.-Dear Sir: Unexpectedly I was away from home all of last week but one day, which circumstance prevented my sending to begin with as I had written to do. I sent you by mail a check-book and some blank bills of sale. Take a bill of sale for each lot that you buy, and send them to me as it becomes convenient. My understanding now is that you buy, take care of, and fatten the cattle, pay all damages caused by cattle trespassing upon the property of others, and that I pay you for the same all profits to me over and above 35 per cent, net profit. With this understanding you may begin to buy and check out funds, and to pay for the same as you buv. Return this sheet to me by return mail, signifying your acceptance of these terms. The cattle are to be ready for the market by about June 1, 1884, but may be sold previously if the prospects seem to demand it for our mutual interest. Write your acceptance herein, and return it by return mail. Yours, truly, M. P. | KINKAID." The letter or postal card to which the above letter is an answer was written in May, 1883, but the exact date does not appear. They, together, constitute the contract in this case.

the

In order to understand this proposition and answer fully, it is necessary to consider some of the correspondence leading up to it, and in connection therewith. In April, 183, Hiatt sent to the defendant the following letter: "Clearwater, Neb. 4, 3, 83. M. P. Kinkaid-Sir: I would much to buy cattle.・・・ This year will buy the ⚫ in your name, and give you security that will insure you against all losses that might occur from depreciation, or poor judgment în buying, or anything else which might cause a loss for all profits over 35 per cent of the money used; or, if you rather, I will give profits, which, no doubt, would make you 100 per cent., but I would not insure; but I think that I can buy and sell several lots of cattle during the year which would be very profitable to both of us, and would rather do so. I have found out where I can buy so as to make 75 per cent. between now and July without much risk, if any. If you would like in any shape please state me the particulars; or, if you would like to see me, the man that is intending to make us the loans on real estate lives at Albion. I think that he will get it fixed soon, and then we can pay you the balance. Many thanks to you for past favors. You will have all our good wishes, and it will do you no harm, and all the good it

HIATT." The loans referred to relate to
debts apparently secured by chattel mort-
gage, which the plaintiff was owing the
defendant prior to the transaction in suit.
In answer to the above letter the defend-
ant wrote as follows: "Paris R. Hiatt,
Esq.-Dear Sir: Yours of the 10th is before
me, and I inclose thereof a written con-
tract signed by me, which, if it suits you,
you may sign and copy and return it to me;
or you need not copy it, and I will copy it,
sign the copy, and send it to you. Your
first offer was to allow me $1,200 for the
use of $2,400, or 50 per cent. for the use of
my money. You next wrote that you
would insure me 35 per cent., or give me
of the profits, whichever I choose; that
the latter might make me 100 per cent. I
prefer to go into the matter as a speculator
rather than as a money loaner, and have
written up the contract to have the prof-
its. You are better posted on what is
customary than I, and know better
whether this is fair. At any rate, this is
your offer. Yours, truly, M. P. KINKAID.
P. S. What kind do you expect that you
will buy? Mostly 2 or 3 years old? Write
at once, as I want to go away on busi-
news."

This proposed contract was returned by Hiatt without his signature. There is also a letter as follows: “Aug. 3, 1883. P. R. Hiatt, Esq., Clearwater-Dear Sir: Your card is before me. I meant you to understand when I met you at Clearwater not to buy any more cattle at this time, but it seems that you did not so understand me. Buy no more until again authorized to do so. I instructed the bank several days ago that no more checks would be sent in, but will have them pay this one for $35.00. If Warner has not accepted the check now he need not accept it at all. He has no right to hold a check several weeks and speculate on prices. I want no more cattle now at any price, and will buy no more until prices have become settled. The best judges say that prices have declined fully one-third. Acknowledge receipt of this, and oblige, yours, truly, M. P. KINKAID. " Also a receipt dated 8-10-83, as follows: "O'Neill, Holt county, Neb, 8-19-83. Received back from Paris R. Hiatt one certified check for $205.00 of Holt County Bank, signed by M. P. Kinkaid, the same unused. M. P. KINKAID. I hereby release all claim to one pony branded O. K. on left hip to P. R. Hiatt, in consideration of $75.00, hand paid. Aug. 19, 1883. M. P. KINKAID." Also the following letter from the plaintiff: "Clearwater, Neb., 4-27-83. Hon. M. P. Kinkaid-Dear Sir: Yours of 22 and 23 received. In reply, say that I don't think but what I can get plenty of 2 at $25, and 3-year old steers at $35, of a good quality. About three weeks back there has been a great rush for steers, but it is over now to a great extent, as buyers became discouraged, so I think that the market is weakening considerable. My object is not to rush, but do considerable hunting around; get them as much below the mar ket as possible. Anything well bought is half sold. Corn 20 cents per bus. I don't know, but I think about the 10th of May would be a good time to commence buy