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that the lien of a judgment extends to all lands of the debtor within the state: Campbell v. Spence, 4 Ala. 543, 39 Am. Dec. 301; Commercial Bank v. Helderburn, 7 Miss. (6 How.) 536. This has been held true of the judgments of the supreme court of a state: Durham v. Heaton, 28 Ill. 264, 81 Am. Dec. 275; Ralston v. Bell, 2 Dall. 158, 1 L. ed. 330. The statutes of many states now require, however, that a judgment of the supreme court must first be docketed in the county where the land is situated before it becomes a lien thereon: Clark v. Dakin, 2 Barb. Ch. 36; Alsop v. Moseley, 104 N. C. 60, 10 S. E. 124.

The judgment of a court of one state certainly does not become a lien on lands situated in another state: Billan v. Hercklebrath, 23 Ind. 71.

b. Of Judgment of Federal Court.-The lien of a judgment of a federal court has, by analogy to state laws, been held to be coextensive with the territorial jurisdiction of the court, and to attach to the real estate of the debtor situated in any county within such jurisdietion, without the filing of a transcript in such county: Trapnall v. Richardson, 13 Ark. 543, 58 Am. Dec. 338; United States v. Duncan, 12 Ill. 523; Rock Island Nat. Bank v. Thompson, 173 Ill. 593, 64 Am. St. Rep. 137, 50 N. E. 1089; Manhattan Co. v. Evertson, 6 Paige, 457; Branch v. Lowery, 31 Tex. 96; Shrew v. Jones, 2 McLean, 78, Fed. Cas. No. 12,818; United States v. Duncan, 4 McLean, 607, Fed. Cas. No. 15,003; United States v. Scott, 3 Woods, 334, Fed. Cas. No. 16,242; Massingill v. Downs, 7 How. 766, 12 L. ed. 903.

The hardships which resulted from this all-pervading character of the lien of a judgment of a federal court (for persons dealing with realty were likely to search no further than the county records for judgment liens) induced Congress to enact in the year 1888, "That Judgments and decrees rendered in a circuit or district court of the United States within any state shall be liens on property throughout such state in the same manner and to the same extent and under the same conditions only as if such judgments and decrees had been rendered by a court of general jurisdiction of such state; provided, that whenever the laws of any state require a judgment or decree of a state court to be registered, recorded, docketed, indexed, or any other thing to be done, in a particular manner, or in a certain office or county, or parish in the state of Louisiana, before a lien shall attach, this act shall be applicable therein whenever and only whenever the laws of such state shall authorize the judgments and decrees of the United States courts to be registered, recorded, docketed, indexed, or otherwise conformed to the rules and requirements relating to the judgments and decrees of the courts of the state': U. S. Stats. at Large, 357; Rock Island Nat. Bank v. Thompson, 173 Ill. 593, 64 Am. St. Rep. 137, 50 N. E. 1089; Blair v. Ostrander, 109 Iowa, 204, 77 Am. St. Rep. 532, 80 N. W. 330, 47 L. R. A. 469; First Nat. Bank

v. Clark, 55 Kan. 219, 40 Pac. 270; Alsop v. Moseley, 104 N. C. 60, 10 S. E. 124; Cooke v. Avery, 147 U. S. 375, 13 Sup. Ct. Rep. 340, 37 L. ed. 209; Dartmouth Sav. Bank v. Bates, 44 Fed. 546.

It is pointed out in the last case cited that where the laws of a state provide for docketing the judgments of its own courts in any county in the state, but do not make a like provision as to the judgments of federal courts, the act of Congress is not operative. However, state statutes requiring a certified copy or transcript of a judgment to be filed in the county where land of the judgment debtor is situated before it shall become a lien thereon have been held applicable to the judgments of United States courts: Tarpley v. Hamer, 17 Miss. (9 Smedes & M.) 310; Hall v. Green, 60 Miss. 47; Reid v. House, 21 Tenn. (2 Humph.) 576; Vance's Heirs v. Johnson, 29 Tenn. (10 Humph.) 214. Compare, however, Doyle v. Wade, 23 Fla. 90, 11 Am. St. Rep. 334, 1 South. 516.

C. In Case of Division of County or State.-The lien of a judgment is not lost by a division of the county, so that land affected by the lien falls without the old county, in the absence of legislation to the contrary: People v. Hovious, 17 Cal. 471; Davidson v. Root, 11 Ohio, 98, 37 Am. Dec. 411; West's Appeal, 5 Watts, 87; Hart's Appeal, 8 Pa. 185; Garvin v. Garvin, 34 S. C. 388, 13 S. E. 625. The same is true when a state is divided. The lien of a prior judgment still adheres to land falling within the boundaries of the new common. wealth: Gatewood's Admr. v. Goode, 23 Gratt. 880; Calwell's Exr. v. Prindle's Admr., 19 W. Va. 604.


[72 Neb. 263, 100 N. W. 305.]

LARCENY—Evidence.-A Record Kept by a Stockyards Company of carloads of stock received by it which have been copied from a book or tab of original entries from hearing another person read the waybills of the railroad company, is not admissible in a prosecution for larceny to trace cattle, alleged to have been stolen, to the possession of the accused. (p. 792.)

CRIMINAL LAW-Accused as Witness.-An Instruction Concerning the Testimony of the Accused given in his own behalf which concludes with the words: "You are not required to receive blindly the testimony of such accused person as true, but you are to consider whether it is true or made in good faith, or only for the purpose of avoiding conviction, " is erroneous. (p. 794.)

CRIMINAL LAW-Accused as Witness.-If in a criminal trial the accused testifies in his own behalf, the court should not, by conduct or instructions, in any manner disparage his testimony. (p. 794.)

Jackson & Williams and Brome & Burnett, for the plaintiff in error.

Frank N. Prout, attorney general, and Norris Brown, for the defendant in error.

263 BARNES, J. Frank Donner was charged, in the district court for Antelope county, with the larceny of two steers, the property of one John Thompson. A trial resulted in his conviction 264 and he was sentenced to the penitentiary for the term of four years. On error proceedings the judg ment was reversed and the cause remanded for a new trial. He was again found guilty and sentenced to the penitentiary for a term of six years. From that judgment he brings error, and the case is now before us for the second time.

It appears that the steers described in the information were kept in the pasture of one Henry Wilson, situated in said county, and were seen there up to a short time before July 17, 1902, the date at which it was alleged they were stolen. It was shown that the plaintiff had a carload of stock in his possession on the sixteenth day of July, 1902, in the stockyards of the Fremont, Elkhorn and Missouri Valley Railway Company, at Oakdale, in Antelope county, Nebraska, and on that day shipped the cattle, consigned by the Antelope county bank, to the commission firm of Shelley, Rogers & Company, at South Omaha. It further appears that on the morning of the seventeenth day of July, 1902, a carload of stock was received by the South Omaha Stock Yards Company, which it is claimed was delivered to Shelley, Rogers & Company, and sold by that firm and accounted for to the Antelope County Bank. The testimony discloses that one of the steers in question was shortly afterward found in the stockyards of Shelley, Rogers & Company; that it was purchased from them and shipped back to Antelope county. There was no direct testimony that the stolen cattle were in the plaintiff's possession in the stockyards at Oakdale with the cattle which made up his carload of stock shipment from that place to South Omaha, and in order to trace the stolen property it was necessary for the state to show that the identical shipment of cattle made by the plaintiff from Oakdale to South Omaha, after having been received by the stockyards company, was turned over to Shelley, Rogers & Company, and that the steer described in the information and found in the yards of the last-named company was contained in said shipment. In this manner the

state 265 sought to show that the stolen property had been in the possession of the plaintiff. In order to make this proof the state introduced in evidence a book said to have been kept by the Omaha Stock Yards Company, which is referred to in the bill of exceptions as exhibit "D." The introduction of this evidence was objected to as incompetent, immaterial, hearsay, and because the proper foundation had not been laid. The objection was overruled in so far as it related to page 2 of the book offered, and the same was received and read in evidence over the plaintiff's objections. This is assigned as one of the grounds of error. It appears that one William R. Thompson identified exhibit "D," and testified that he made it up from a tab that he used in the yards at the time the train containing the carload of cattle in question was backed into the chutes at the South Omaha Stock Yards, and from hearing another person read the waybills. His crossexamination discloses the following facts in relation to this book:

"Q. Mr. Thompson, the only entry that you made out at the time this car was backed into the chutes was the figures in the line under the words 'car number'? A. Yes, sir.

"Q. That was the only entry you made in this book at the time you was out of the yards-at the time the cars were backed in? A. I copied this off my tab.

"Q. You made no entries in this book at the time you were out in the yards? A. No, sir.

"Q. This book that you have here is a book that is made up afterward? A. Yes, sir.

"Q. After these entries are put onto a book which you use in the actual work of checking they are afterward transferred to this book? A. Yes, sir."

Thereupon counsel moved the court to strike out the entries on page 2 of exhibit "D" because they were hearsay, incompetent and immaterial, not the best evidence, and because no proper foundation had been laid sufficient to authorize the book to be received in evidence. The court overruled the

motion, and the defendant excepted. This was the only way by which 266 the state attempted to trace the carload of cattle from the railroad company into the hands of the stockyards company, and from that company to the consignee. It thus appears that the evidence in question was very material, and without it the stolen cattle were not traced into the possession of the plaintiff. It is therefore necessary for us to

determine whether the court erred in receiving the book exhibit "D" in evidence. This book was not a book of accounts; neither was it a book of original entries, nor the original record of the transaction relating to the carload of stock sought to be traced from the possession of the plaintiff into the hands of Shelley, Rogers & Company. It appears from the evidence of the man who says that he made the entries that as to the record of the receipt of the car and its number, there was better evidence than the book. He testifies that the original entry or record was made on another book or tab, which he had in his possession in the stockyards at the time the stock was checked in. It further appears that he did not make the other entries in the book from his own examination or knowledge, but from hearing another person read the waybills of the railroad company. He nowhere testifies that he ever compared the entries so made with the waybills themselves, or with his book or tab of original entries, and strange to say he was not asked as to whether or not the entries contained in exhibit "D" were correct. So it clearly appears that no proper foundation was laid for the introduction of this evidence. Original books of account or letters cannot be admitted in evidence until the proper foundation has been laid: Norberg v. Plummer, 58 Neb. 410, 78 N. W. 708. In the case of Holland v. Commercial Bank, 22 Neb. 571, 36 N. W. 113, it was held error, and a new trial was granted on account of the introduction of books of account made by and in the handwriting of a clerk, who was neither called nor subpoenaed to verify the entries therein, nor was his absence accounted for. Books of account are receivable in evidence only when verified in the manner provided by section 346 of the code: Gilbert 267 v. Merriam R. S. Co., 26 Neb. 194, 42 N. W. 11; Pollard v. Turner, 22 Neb. 366, 35 N. W. 192; Atkins v. Seeley, 54 Neb. 688, 74 N. W. 1100. The book in question does not even purport to be a book of accounts. The most that can be said for it is that it is a record of carloads of stock received by the stockyards company, and it would seem that, being in the nature of a memorandum, even with the proper foundation laid, it could only be used by the witness who made it for the purpose of refreshing his recollection. This same book was offered and received in evidence on the former trial of this case. On that trial no evidence was introduced to show who made the entries therein, when they were made, or under what circumstances. For these reasons its admission was held

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