tion contains, indeed, the averment: "That by reason of the cutting of said openings in said wall as aforesaid the value of said wall as a party wall has been entirely destroyed, and said wall cannot now be used as a party wall." But no evidence was offered in support of this allegation, and it is apparent from plaintiffs in error's brief that this claim rests upon the contention that a party wall must be a solid wall, and that its character as such is destroyed when any breach or opening is made. There are, indeed, cases in which the statement appears in the opinion that a party wall must be solid, and without openings. Vollmer's Appeal, 61 Pa. 128; Vansyckel v. Tryon, 6 Phila. 401; St. John v. Sweeney, 59 How. Prac. 175. But these were cases where the second builder was complaining, and not, as here, the party entitled to compensation for the use of the wall. We are cited to no case, and have found none, where damages equal to the entire compensation fixed for the use of the wall were allowed because of such openings. If the Becker estate were actually using or desirous of using the wall, there is no doubt, under the authorities, but that it would be entitled to an injunction to prevent these apertures from being made. See, in addition to the cases above cited, Sullivan v. Graffort, 35 Iowa, 531; Dauenhauer v. Devine, 51 Tex. 480, 32 Am. Rep. 627; Calmelet v. Sichl, 48 Neb. 505, 67 N. W. 467, 58 Am. St. Rep. 700. It may even be conceded that plaintiffs in error would have been entitled to have their contingent right protected by injunction, for they alleged that they warned defendants, and forbade them to proceed "at the time of so doing, and before said openings, or either of them, had been fully cut through"; but there is a failure to make a case for damages. There is no proof that the wall was weakened, or in any way injured, by the openings; nor is it alleged or proven that any one would have used the wall but for the existence of these windows, or that plaintiffs were deprived of an opportunity to obtain compensation for the use of the wall because these openings were made. It will be seen that the contract does not require the executrix of the Becker estate to use the wall. It merely gives her the option to do so, and fixes the compensation in case she does. Until she or some of her assigns elects to exercise this option, and uses the wall, plaintiffs' rights are wholly contingent and inchoate. We do not say that they could recover in no case for an injury to the wall until some one had used it, but we do hold that there must be competent evidence of such an injury by showing either deterioration in the value of the wall or that some one was prevented from using it who would otherwise have done so.

We might infer that these two windows would have some effect to lessen the value of the wall as a party wall, but we cannot presume that they would damage it in any

specific amount, and certainly not that they would, as claimed, entirely destroy it. As to the extent of this injury, the bill of exceptions is wholly silent outside of the one item as to the size of the windows. Fa aught that appears, the executrix of the Becker estate or her assigns may be willing to use the wall, when they desire to do so, relying on their right either to a deduction from their contract price on account of the existence of the windows, or to close the apertures, and claim a set-off by reason of expense thereof. Either course would afford a measure of the damage which plaintifs have suffered, but there is no evidence in the record from which the trial court, which tried the cause without a jury, could have estimated them.

We have not found it necessary to ecosider the contention of defendants that the executrix of the Becker estate had no power to make this contract. That defense was available only to the parties interested in the estate. And, had the wall been used under the contract, the defense could hardly have been made, even if the contract was originally ultra vires. The tendency of the de cisions seems to be toward holding the second builder even without a contract. As was said by Holmes, J., in Lincoln v. Burrage, 177 Mass. 380, 59 N. E. 67, 52 L. R. A. 110: "When a duty to pay for a party wall is recognized between owners who have not contracted together personally, it seems likely that it will be worked out in terms of implied contract, as it was in Irving v. Turnbull [1900] 2 Q. B. 129." We do not, moreover, determine the question whether this action was prematurely brought, nor whether any cause of action arose until there had been some attempt or manifestation of desire to use the wall. We rest our decision wholly on the ground of failure of proof of damages, and because of this we recommend that the judgment be affirmed.

gs in this case if the jury accepted plaintiff's stimony, as they had a right to do.

3. Defendants having procured plaintiff's arst on the ground that there was danger that e would leave the state to avoid an examation in proceedings in aid of execution, the ounty judge's finding that the evidence did not isclose such intention is admissible in evidence t the trial of plaintiff's action for malicious rosecution based on such arrest and proceedngs, especially where the termination of such roceedings is disputed.

4. Evidence of plaintiff as to his intentions with regard to leaving the state, and as to his rrangements to remain about the time of his rrest, defendants not being chargeable with nowledge of either, and such proof merely ending to show plaintiff's innocence of the harge made by defendants, is immaterial in an action of malicious prosecution, and, where it nay have created some sympathy for plaintiff, ts admission is prejudicial error.

5. It is not error to refuse, in an action for maliciously procuring plaintiff's arrest in proceedings in aid of execution, an instruction that makes an intention on the part of plaintiff to leave the state a sufficient ground for arresting him. The statute only permits arrest where there is danger defendant will not obey a citation to appear.

(Syllabus by the Court.)

On Rehearing. Reversed.

For former opinion, see 89 N. W. 627.

HASTINGS, C. The judgment for plaintiff below in this case was reversed in the opinion which appears on page 627, volume 89, of the Northwestern Reporter. The case has been re-examined principally upon the fifth ground urged, namely, the claim that the question of probable cause was submitted to the jury by the plaintiff in error in asking for special findings, and that, consequently, defendant is in no position to claim error because instruction 7 submitted this question of law to the jury. We will examine seriatim the five grounds for rehearing.

The first is that the legal effect of the portion of instruction 7 which was excepted to by plaintiff in error was misapprehended. An examination of the record discloses that only so much of this instruction as is embraced in the first three sentences down to the word "circumstances" is excepted to and is complained of in the petition in error. We still think, however, that the second sentence in the instruction contains the vice that the former opinion found in it. That sentence is as follows: "It is for you to determine whether or not such information, if he had the same, was sufficient to justify him in instituting proceedings against the plaintiff." It seems clear that this sentence submitted to the jury in express terms the question of whether or not the facts alleged, if found to be true by the jury, were sufficient to constitute probable cause, which would justify the defendant's action. The first ground for rehearing, then, was not well taken.

The second ground is like unto it, and should be disregarded for the same reason. It is a complaint that the entire instruction was inadvertently considered as having been excepted to, and that the vice is not in the

portion which was excepted to. It is sufficient as to this to repeat that the sentence above is in the portion of the instruction excepted to.

So.

The third ground of rehearing is that the commission was misled to believe that the facts were undisputed when they were not No portion of the opinion is cited which indicates such an impression, and an examination of it reveals nothing which indicates that the former opinion was written under any impression that the facts claimed by way of defense were not disputed, and we see no ground for re-examining the case for this reason.

The fourth ground of rehearing is that the objection to instruction 7, for which the case is reversed, was not raised by plaintiff in error, and therefore should be deemed waived. The first two paragraphs of instruction 7 were expressly excepted to on the record, and error in them expressly complained of in the petition in error. The brief of plaintiff in error complains expressly of the first and second paragraphs of this instruction, and on page 21 of that brief counsel expressly complain that it was a question of law for the court as to whether or not the facts known to Maddox, in connection with the advice he received from counsel, constituted probable cause and a justification of the arrest. This surely is an objection to the jury's passing on that question of whether or not these facts were a justification. In our opinion, counsel are right in claiming that whether or not these facts, if found, would constitute a justification, was a question of law, and, so far as that question is concerned, the former opinion should be adhered to, unless the error is to be deemed waived because of the special findings on pages 9 and 10 of the record. These special findings were requested by the defendant. The first is to the effect that defendant did not fully and truthfully state the facts to its attorney, and did not use reasonable diligence to ascertain them. The second answers "No" to a question as to whether the attorney advised the arrest, and whether defendant acted entirely on the advice. The third says that defendant had no reasonable cause to believe there was danger that plaintiff was about to leave the state to avoid examination. Did these findings, and especially the third one, submit to the jury the whole question as to probable cause for making the arrest? Is "reasonable cause" to believe there was danger that Richmon would leave the state to avoid an examination the same thing as "probable cause" to procure his arrest on that ground? It is hard to distinguish them. We think the asking of these findings left the defendant no room to complain of the submission of the whole question of probable cause to the jury. The complaint made of this instruction was chiefly because it separated the defense of advice of counsel from that of the existence of probable cause, and

If

almost eliminated the whole matter of counsel's advice. If the first finding, however, is sustained by the evidence, there is no room for protection on that ground. The first finding expressly says that a true statement to counsel was not made, nor reasonable diligence used to ascertain the facts. If this finding is upheld, there is no longer any question of advice of counsel in the case. the findings are correct, and the evidence sustains them, of course the general verdict becomes unimportant, except as to the amount of damages. These special findings and their significance seem to have been overlooked at the former hearing. It is conceded that plaintiff's arrest was procured. The jury has here found that the defendant did not make a full statement to the attorney, and did not have reasonable cause to believe in the truth of the accusation, and did not make reasonable investigation as to the facts, and did not act solely upon the attorney's advice. No complaint is made as to the assessment of damages, and there seems no question that, if these special findings are upheld, and there was no error in reaching them, the judgment should be affirmed.

Defendant insists that these special findings asked by them do not have the effect to submit to the jury the whole question of probable cause, and, still more earnestly, that the findings as to the disclosure to the attorney are not sustained by the evidence, and that, in any event, the facts shown in the record abundantly establish probable cause for defendant's action in causing plaintiff's arrest. As we have concluded that the error in the seventh instruction must be deemed waived by the submission of the special findings, it becomes necessary to examine the evidence to see if those findings are supported, and whether it shows probable cause for defendant's action; that is, taking the most favorable reasonable construction for plaintiff, and giving him the benefit of all disputed matters in the evidence, does the evidence still show a full disclosure to the attorney and action on his advice in good faith, and does the record show probable cause for believing that there was danger plaintiff would depart the state? We have gone somewhat carefully over the evidence, and we find that the vice president of the bank, Mr. Maddox, testifies to two conversations with plaintiff, both of which are denied by the latter in the terms stated by Maddox. In the first Maddox claims to have been told by Richmon that the latter would never pay his debt to the bank. This is wholly denied. At a subsequent conversation Maddox claimed to have been told by Richmon that the latter did not care for the judgment, but was going to leave the state as soon as the replevin suit between his brother and the bank over some horses seized on this claim was settled. This, too, is denied. Both of these conversations were among the facts stated to counsel in getting his advice as to the institution of

proceedings for the arrest. The witness Cross also denies the statement attributed to him by Maddox that plaintiff was arranging to leave the state by a 3 o'clock train the next morning. Counsel is not justified on this record in saying there is no discrepancy the facts as stated by the witnesses. If these facts are taken out-as they must be after the special finding-there is hardly enough to warrant a holding that what s left shows a reasonable ground for the ar rest. Malice might be presumed from the want of reasonable cause, and also from the misstating of the facts which the jury found had taken place. We are not prepared to say that these findings are unsupported by the evidence. While it was undoubtedly er roneous for the court to submit to the jury the question whether the facts found costituted probable cause, defendant, having asked such a finding, cannot complain.

Defendant insists upon five points, which they say were not passed upon at the formet hearing. The first is that not only the plaintiff's discharge, but the findings of fact made by the county judge, were permitted to go to the jury in the present case, and particularly his finding as to plaintiff's DoDintention to leave the state. The county judge made a finding that the allegations of defendant's affidavit that plaintiff was about to leave the state were not sustained by suficient evidence. This finding was objected to as not proper for the jury to consider, incompetent, immaterial, and irrelevant. The objection was overruled, and the record of the finding admitted "for the purpose of showing that the plaintiff was acquitted of the charge that he was about to leave the state to defraud creditors." Defendant cites Obernalte v. Johnson, 36 Neb. 772, 55 N. W. 220, as showing that this was error. The precedent is rather the other way. In Obernalte v. Johnson the verdict of acquittal is held admissible, but an added finding that the complaint was without probable cause inadmissible. Following that precedent, the finding as to plaintiff's intention to leave the state to defraud his creditors would be admissible. It would seem that it was admissi ble to show the final termination of the proceedings in aid of execution, if not as prima facie proof of want of probable cause. Se cor v. Babcock, 2 Johns. 203; Smith v. Ege, 52 Pa. 419.

A second claim of error, not passed upon in the former opinion, is the admission of proof of statements and conduct of plaintiff which were not shown to have been brought to defendant's knowledge till the trial, and tended to indicate that plaintiff on the night of his arrest was not intending to leave the state. Plaintiff at the trial was asked if on the day of his arrest, or for 30 days prior thereto, he had any intention to leave the state to avoid an examination as to his property. This was objected to as incompetent, irrelevant, and immaterial, and after

he answer was taken a motion was made ind overruled to strike it out for the same 'eason. In Turner v. O'Brien, 11 Neb. 108, 7 N. W. 850, testimony of plaintiff that he icted in good faith in threshing and selling the wheat for whose larceny defendant had procured his arrest was excluded, and this court says: "The question of Turner's good faith in threshing the grain was not before the jury. That he was not guilty of larceny, the crime for which he was prosecuted, was established by his discharge by order of the court of Washington county upon the failure of the grand jury to indict him, and no further inquiry on that point was necessary or proper. His method of threshing and hauling the grain, whether done in an open and public manner, as tending to show the want of good faith on the part of O'Brien in charging him with having stolen it, was pertinent and proper to be proved; but the secret intent of Turner in threshing and removing the grain is irrelevant in this case." If this is the accepted view of the law in this state, then there was manifest error in admitting this testimony, as well as that of plaintiff and other witnesses as to his arrangement to return to Miller the next day. It is not claimed that defendant had any knowledge of these arrangements.

The cases bearing on this question as to the right of plaintiff in a malicious prosecution case to show innocence of the charge brought against him by defendant are collected in Century Digest, vol. 33, col. 1965 [ff]. Many of them seem to be cases like that of Casebeer v. Ric, 18 Neb. 203, 24 N. W. 693, in which the defendant was chargeable with knowledge of the facts. Turner v. O'Brien cites no authority, but seems to be supported by Brennan v. Tracy, 2 Mo. App. 540: Fenstermaker v. Page, 20 Nev. 290, 21 Pac. 322; King v, Colvin, 11 R. I. 582; and apparently by Thompson v. Beacon Val. Co., 56 Conn. 493, 16 Atl. 554. It is opposed to Patterson v. Garlock, 39 Mich. 447, a case which cites no authority, and to Winemiller v. Thrash, 125 Ind. 353, 25 N. E. 350, and Long v. Rogers, 17 Ala. 540. The reasoning in Turner v. O'Brien seems sound. The general rule seems to be that defendant can only justify on the facts known to him when he institutes the prosecution. Cooley on Torts (1st Ed.) 183, and cases. It would seem, as long as this is true-and it is admitted even in the cases holding evidence of innocence admissible-that it is not necessary, and, as it plainly tends to obscure the real issue of malice and want of probable cause, that the rule of Turner v. O'Brien should be adhered to, and that the admission of this evidence in this case was error.

It is complained that evidence was refused which tended to show that plaintiff was well able to pay this debt. We are not cited to any place in the record where such evidence was refused. In connection with his alleged refusal to pay in 1897, proof of his

ability to do so would be material, but ability to do so during the previous years would hardly seem to furnish any inference as to his intention to leave the state in January, 1898.

It is urged that there was error in refusing the thirteenth instruction asked by defendants. The instruction seems to have been properly rejected. It told the jury that, if the circumstances were such as to indicate to a discreet and prudent person that plaintiff was about to depart from the state, defendants had a right to detain him. Of course, the real question was not whether plaintiff had an intention to leave the state, but whether there was danger that he would carry out such intention, regardless of citation to appear for examination as to his property. The right to arrest is merely ancillary to that of getting the execution defendant before the examining court. If there was danger that this could not be done without his arrest, then his arrest was authorized.

For error in admitting the evidence indicated, it is recommended that the former judgment of reversal be adhered to, and the cause remanded for further proceedings.

KIRKPATRICK, C., concurs.

PER CURIAM. For the reasons stated in the foregoing opinion, the former judgment of reversal is adhered to, and the cause remanded for further proceedings.

RAWLINGS v. ANHEUSER-BUSCH
BREWING ASS'N.

(Supreme Court of Nebraska. May 6, 1903.) JUDGMENT-INTEREST.

1. Where a plaintiff has obtained a verdict on which judgment has been entered, and on appeal the Supreme Court holds that the verdict is excessive, and orders a new trial unless plaintiff remit the amount deemed excessive, and plaintiff does enter a remittitur for such excess, he is entitled to interest on the amount of the judgment allowed to stand from the date of the original entry.

2. Where payment is made upon a judgment in excess of the amount of the interest then due thereon, the entire unpaid balance due on the judgment, including interest, bears interest, as provided by law, from the date of such pay

meut.

(Syllabus by the Court.)

Commissioners' Opinion. Department No. 2. Error to District Court, Gage County: Letton, Judge.

Action by the Anheuser-Busch Brewing Association against Melvin L. Rawlings. Judgment for plaintiff, and defendant brings error. Affirmed.

L. M. Pemberton, for plaintiff in error. Hazlett & Jack, for defendant in error.

1. See Interest, vol. 29, Cent. Dig. § 84.

GLANVILLE, C. The plaintiff in error has brought this action to this court to have reviewed the ruling of the district court upon his motion to suspend an execution issued out of that court, and quash and set aside said execution; claiming that the judgment upon which the execution was issued had been paid in full prior to the issuing of the execution. There is no dispute whatever as to the facts in the case.

It appears that this cause was before this court on a petition in error filed by the same plaintiff in error, wherein the action of the district court upon the trial of the original action was complained of; and it was ordered by this court that, in case the defendant in error within 40 days remit all damages adjudged to it in excess of the amount prayed in its petition, the judgment be affirmed; otherwise the judgment to be reversed, and the cause remanded. It seems that plaintiff below omitted to pray in its petition for certain interest that was included in the verdict and judgment, and that the excess of damages referred to in the order of this court was such interest. The defendant in error entered the proper remittitur in this court, and a mandate was issued to the district court, wherein the following order was made: "Now, therefore, you are commanded without delay to cause execution to issue, carrying into effect your said judgment, as modified by said remission, in the manner provided by law."

The execution in question is dated February 19, 1902, and was issued for the collection of $286.44, together with interest thereon at the rate of 7 per cent. per annum from the 12th day of September, A. D. 1901, until paid; also $23.70 costs of suit, with the accruing costs. By the recitals contained in the execution, it is shown that Rawlings paid on the judgment and costs $1,203.40 on the 12th day of September, 1901. This sum, it appears, is the amount of the original judgment, less the sum remitted, with interest only from the date of the mandate, and the sum for which execution is issued is the interest on the amount of the original judgment, less the sum remitted, from the date of the judgment to the date of the mandate; and the only questions to be determined are: (1) Should the balance of the judgment, after deducting the amount remitted, bear interest from the date of its original entry? And (2) if it should, then was it right for the execution to require the collection of interest upon the unpaid balance of the judgment from the date of the payment made thereon?

By the rule announced in this court in Davis v. Neligh, 7 Neb. 78, holding that "interest on a judgment or debt due is computed up to the time of the first payment, and the payment so made is first applied to discharge the interest, and afterward, if there be a surplus, it is applied upon the principal, and so toties quoties, taking care that the

principal thus reduced shall not at any time be suffered to accumulate by the accruing interest," the second question above is a swered in the affirmative. If the amount for which execution was issued is the bal ance left due upon the judgment after cre? iting the payment made, it bears interest from the date of such payment.

We think the first question must also be answered in the affirmative, upon reason and justice, as well as authority. By section 3 of chapter 44 (the chapter on interest) i the statutes of this state it is provided, “Interest on all decrees and judgments for the payment of money shall be from the date of the rendition thereof, at the rate of $7.00 upon each $100.00, until the same shall be paid." The judgment in question was redered on the 2d day of April, 1898. It has never been reversed, though, by the order of this court, it was modified by the remittit which effected the deduction of a certain amount therefrom. The remittitur relates back to the date of the judgment, and the amount thereof was correctly deducted from the original amount, and interest computed from that date upon the unremitted balance only. The mandate properly directed the carrying into effect of the judgment as modified by the remission, and no principle of rule of justice or law has been suggested by the plaintiff in error which would justify the holding that defendant in error is not entitled to interest as provided by law upon the judgment, modified only by the deduction of the amount remitted. In MeLymans v. City of Lancaster, 26 N. W. 566, the Supreme Court of Wisconsin held that "where a plaintiff has obtained a verdict, upon which judgment has been entered, and on appeal the Supreme Court holds that the verdict is excessive, and orders a new trial unless the plaintiff remit the amount deemed excessive, and plaintiff does enter remittitur for such excess, he is entitled to interest on the amount of the judgment allowed to stand from the date of original entry." The case before us, considering the language used in the ruling of this court, and the order contained in the mandate therefrom, is much stronger in favor of the allowance of such interest, and gives less plausibility to the contention that it should not be allowed than does the language in the ruling and order involved in the Wisconsin case. In that case it is said: "There may be some reason for the construction given to this direction by the learned counsel for the appellant, but we think, in consideration of the fact that this court held that, if the verdict had originally been for the sum of $5,000, this court would have approved the same, and affirmed the judgment rendered thereon, which would have included or given the respondent the benefit of the interest on that sum from the date of such verdict, she ought not now to be debarred from having such interest allowed to her, un