N. E. 168, and 28 N. E. 73; Wharton v. Sims, 88 Ga. 617, 15 S. E. 771; Cole Co. v. Dallmeyer, 101 Mo. 57, 13 S. W. 687. While this record discloses an apparently regular order of adjournment until November 1st, it also discloses the conduct of judicial business October 4th; and it must be presumed that there had been a reconvention of the court, and a rescission of the order of adjournment; whether by regular order vacating the former, or by action equivalent thereto, is not material. Clough v. State, 7 Neb. 320. The motion to dismiss the appeal must therefore be overruled.

In what has been said it has not been the intention to convey any inference whatever as to what would be the rights of litigants who, relying on the order of adjournment, had absented themselves for want of notice to the reconvention of the court, or of those who might, although with notice, be unprepared for a trial thus brought on prior to the time on which they might perhaps rely as the earliest when trial could be demanded. This record does not disclose that there was any surprise. Both parties were present, and no objection appears to going to trial at the time trial was had.

We are thus brought to the merits of the appeal. The case was a proceeding in fore closure. A decree was rendered, a stay taken, the land then sold, the sale confirmed, and an appeal taken by the defendant from the order of confirmation. By this court the order of confirmation was affirmed.1 A mandate was sent to the district court, commanding the enforcement of the order. A deed was issued to the purchaser, who demanded possession, and possession was refused. The purchaser then instituted an action in forcible entry and detainer for the recovery of possession of the property. The defendant then filed in the original case a supplemental petition, asking an injunction to restrain the purchaser from prosecuting the forcible entry and detainer case, and from interfering with defendant's possession. It is the order making a temporary injunction of that character perpetual that is appealed from.

We are not favored with a brief in defense of the order of the district court, and we are decidedly of the opinion that it is entirely indefensible. The supplemental petition, aside from reciting the proceedings in the case, alleges that the cause is still pending in the district court to carry out the mandate; that the plaintiff has filed "a pretended deed," dated and executed while the order of confirmation was superseded by the former appeal; that the property is defendant's homestead; that the forcible entry and detainer case will necessarily raise the question of title; and that the court where that is depending is therefore without jurisdiction. These averments show no right to relief by injunction. The Code of Civil Procedure

1 Without opinion.

(section 1020) expressly makes the remedy of forcible entry and detainer available "in sales of real estate on executions, orders or other judicial process, when the judgment debtor was in possession at the time of the rendition of the judgment or decree, by virtue of which such sale was made." It was shown that such was the case here. Where that remedy is given, that and a writ of assistance are concurrent remedies. Kessinger v. Whittaker, 82 Ill. 22. The pursuit of the former did not oust the district court of whatever jurisdiction it had retained, and was not an usurpation of that jurisdiction. Nor were the forcible entry and detainer proceedings without jurisdiction because of the averment in the supplemental petition here that they would require an inquiry into the title of land. Even an answer to that effect in the forcible entry suit would not oust the jurisdiction. The court might still proceed until the evidence should disclose that the question involved was one of title. Pettit v. Black, 13 Neb. 142, 12 N. W. 841; Lipp v. Hunt, 25 Neb. 91, 41 N. W. 143. The averment that the deed to plaintiff was executed while the order of confirmation stood superseded, even if it could give or contribute to the right of an injunction, was not sustained. The answer averred that the deed had been executed before the supersedeas was effected, and that it had not been delivered until after affirmance and the receipt of the mandate. There was no reply, and this averment therefore stood admitted. Moreover, it was proved at the trial. The deed was therefore both executed and delivered while the judgment was enforceable. Of course, the averment in the supplemental petition that the premises constituted a homestead was of no force whatever to prevent the carrying into effect of a decree unappealed from, ordering the sale of the property, and of an order of confirmation following such sale.

It may further be remarked that the only evidence the defendant offered to prove the averments of the supplemental petition was that somewhat remarkable document itself. A pleading in a cause is not competent evidence to prove the facts therein averred. The judgment of the district court is reversed, the perpetual and temporary injunctions both dissolved, and the supplemental petition dismissed.

MOON et al. v. MILLS. (Supreme Court of Michigan. Jan. 20, 1899.) EASEMENT-PRESCRIPTION.

1. The owner of property abutting on an alley 12 feet wide had a perpetual right of way over it, in common with other abutters, and maintained an outside stairway and platform over the alley, 35 inches wide, which did not incommode the other abutters. The alley was never dedicated to the public by any plat. Held that he could not be compelled to remove the ob structions.

2. Prescriptive rights may be acquired in an alley, though it were laid out as such.

Appeal from circuit court, Livingston county, in chancery; Stearns F. Smith, Judge.

Bill by Orrin N. Moon and Cecelia W. Moon against Wesley J. Mills. There was a judgment for defendant, and complainants appeal. Affirmed.

Judd Yelland, for appellants. Louis E. Howlett, W. P. Van Winkle, and W. H. S. Wood, for appellee.

LONG, J. This bill was filed to compel the removal of a certain platform, stairway, and water-closet from and out of an alley situate between the premises of the complainants and the defendant. The alley is 12 feet wide, and 160 feet long, extending from the street to another alley at right angles with it. The complainants' premises, which are 24 feet in width, abut in the rear upon this first alley, and extend through to East street, upon which their store fronts. The defendant's premises, upon which there are three brick stores, face on Main street, and extend to the alley in the rear. The obstruction complained of is a platform 29 feet 10 inches in length, extending partly across the rear end of the second story of defendant's buildings. Leading down from the platform into the alley is a stairway about 35 inches in width. The platform is held in place by brackets fast. ened against the wall, 12 feet from the ground. The water-closet is beneath the stairway, and not extending so far into the alley as the stairway itself. The stairway and platform are used for the purpose of reaching the second story of defendant's buildings, these stories being used as offices, living rooms, and dressmaking parlors. The defendant purchased his premises from the heirs of Almon Whipple, in 1880 and 1881. The alley in question also belonged to that estate. The deeds to the defendant, after describing the property, recite: "Together with a perpetual right of way, twelve feet wide, parallel with Main street, extending from Clinton street south to the alley on lot number thirty-three of Condry's addition, running parallel with Grand River street, which right of way is to be used in common by the parties of the second part, their heirs and assigns, and the owners, their heirs and assigns, of the several lots and parcels of land lying west and bordering on the above-described alleys, according to the recorded plat," etc. Soon after the defendant purchased his premises, these three store buildings were erected, and three different stairways built in the alley leading to the upper rooms of the stores. Fires occurred in the buildings some time in 1887, when the three stairways were rebuilt. No objection seems to have been made to these obstructions by any one until the complainants purchased their property, on the opposite side of the alley, in 1897. While complainants were building

stairways, and erected the platform and one stairway instead. No objection was made by complainants to these changes while they were being made. The case was heard in open court, and the bill dismissed. Complainants appeal.

We think the testimony shows conclusively that the complainants are not injured in any manner by these obstructions. The land in this alley was never dedicated to the public by any plat, and the only ones interested in the alley are those whose property abuts thereon. Under the deeds to the defendant, he has a perpetual right of way in the alley. Any encroachment must become a serious inconvenience to the parties having the right of way before it becomes a nuisance. The claim of complainants is that, as matter of law, they are entitled in a court of equity to a removal, though they show no equitable reasons why it should be so ordered. This contention cannot be sustained. The true rule is that one of the owners in common of a way, who erects an obstruction on his part, beneficial to himself, and which does not tend to incommode one who has an equal right, cannot be compelled to remove such obstruction. 19 Am. & Eng. Enc. Law, p. 113.

There is another reason which prevents the complainants from sustaining their claim. The defendant obtained his deeds in 1880 and 1881, and in the following year erected his buildings, and from that time to the present has occupied the alley by the stairways erected in the alley in the rear of these buildings. There has been a continued, uninterrupted use of the alley by the stairways, under a claim of right, for more than 17 years prior to the time of filing the present bill. Prescriptive rights may be acquired in an alley, though it were laid out as such. Vier v. City of Detroit (Mich.) 70 N. W. 139. Title may be acquired to a public highway by adverse possession. Village of Essexville v. Emery, 90 Mich. 183, 51 N. W. 204. The court below was correct in dismissing complainants' bill. That decree will be affirmed, with costs. The other justices concurred.

CRIBBS ▼. YORE.

(Supreme Court of Michigan. Jan. 20, 1899.) SLANDER-DAMAGES-INJURIES TO FEELINGS.

Pub. Acts 1895, No. 216, § 1, which provides that, in actions for slander, only actual damages to property, business, or feelings are recoverable, has not abrogated the common-law rule that damages for injuries to feelings are recoverable as general damages, without being specially pleaded or proved.

Error to circuit court, Berrien county; Orville W. Coolidge, Judge.

Action by Eugene W. Cribbs against Patrick Yore. There was a judgment for plaintiff, and defendant prosecuted error. Affirmed.

W. C. Hicks and O'Hara & O'Hara, for apof others, said to the plaintiff, "You thief; you d-n thief; you are a thief, and I can prove it." Being held liable in an action for slander, the defendant has brought error, and the brief of his counsel states that there are but two points to be considered: (1) That the declaration sets forth no cause of action, and therefore no testimony should have been admitted against the defendant's objection, and his request to directa verdict for the defendant should have been given. (2) There was neither allegation nor proof of injury to feelings, and a verdict should have been directed for the defendant, and the court should not have allowed the jury to find a verdict upon the ground of injury to the plaintiff's feelings. These contentions are based on section 1, Act No. 216, Pub. Acts 1895, which reads as follows, viz.: "The people of the state of Michigan enact, that in cases brought for the recovery of damages for libel or slander in this state, the plaintiff shall be entitled to recover only such actual damages as he may have suffered in respect to his property, business, trade, profession, occupation or feelings." The declaration concludes with the averment: "By reason of the speaking, publishing, and uttering of which said false, scandalous, malicious, and defamatory words, the said, plaintiff is greatly prej udiced in his good name, fame, credit, and reputation; wherefore the said plaintiff says that he is injured and has sustained damage to the amount of five thousand dollars, and therefore the said plaintiff brings suit," etc. The testimony showed that the language complained of was used boisterously, several times, and in the presence of several persons. The learned circuit judge held the allegation sufficient, and that the jury might infer injury to feelings from the testimony stated.

Injury to feelings has always been included among the things for which general damages are recoverable, and no special allegation has been considered necessary. A statement of the slander, with a general ad damnum clause, was sufficient. And the law presumed the injury to the feelings from the proof of the slander, and the jury were allowed to determine the amount of the damage without opinion evidence thereon. These things are not changed by the statute. It is not necessary to specially plead injury to the feelings, nor does the law require proof beyond the proof of the slander before it will presume injury to the feelings. We find no error in the record, and the judgment is affirmed. The other justices concurred.

FEIGE v. BURT et al.1

(Supreme Court of Michigan. Sept. 27, 1898.) EXECUTION-PROPERTY SUBJECT-STOCK-PLEDGES

-CONVERSION-DEMAND-TENDER.

1. Under How. Ann. St. § 7697 et seq., authorizing a levy of execution on shares of stock, 1 Rehearing denied January 24, 1899.

ords of the company to give a certificate of the number of shares held by the debtor, shares owned by the debtor, but standing in the name of a third person on the books of the company, are not subject to levy on execution.

2. A sale of shares of stock by a pledgee thereof, without notice to the pledgor, is a conversion. 3. When a pledgee of stock wrongfully sells it, the pledgor may sue for the conversion without first tendering the debt or demanding a return of the stock.

Error to circuit court, Saginaw county; Byron A. Snow, Judge.

Trover by Ernest Feige against Wellington R. Burt and another. There was a judgment for defendants, and plaintiff brings error. Reversed.

Weadock & Purcell, for appellant. Humphrey & Grant, for appellees.

MOORE, J. Plaintiff sued defendants, in an action of trover, to recover the value of 20 certificates, representing 800 shares of stock in the Feige-Silsbee Furniture Manufacturing Company, claimed by him to have been unlawfully converted by defendants. The circuit judge directed a verdict in favor of defendants. Plaintiff has appealed the case to this court.

Prior to 1888 the plaintiff was one of the incorporators of the Feige-Silsbee Furniture Manufacturing Company. He was a borrower of the defendant bank. November 8, 1888, he pledged to the bank the certificates of stock already mentioned, he indorsed them in blank, and at the same time a paper was executed reciting the deposit of the certificates "to be held by said bank as collateral security for any obligation which I may now have or hereafter have" in said bank. May 1, 1895, Mr. Feige gave his note to the bank in the sum of $6,650, due in three months. The defendant Burt became a stockholder in the furniture company some years ago. He was its president when this note was given, and continued to be its president from that time on. Mr. Feige was a director, and for some time had been manager, of the company. Mr. Burt was also president of the bank. It is the claim of the plaintiff that Mr. Burt and the bank conspired together to depreciate the value of the stock, and to deprive him of it without compensation, and to displace him from his position as director and manager of the company. He says on February 10, 1896, the bank, without notice to him, through its president, Mr. Burt, surrendered the 20 certificates of stock, and 1 certificate in lieu thereof was issued to the bank for the 800 shares, and the 20 certificates were canceled. He claims the certificate so issued was never returned to the furniture company. He says Mr. Burt, as president of the company, refused to recognize him as a stockholder at the meeting of the stockholders of the company, in February, 1896; that he was then displaced as director and manager; that he was refused access to the books of the company; and that the sec