KRUGER V. THE STATE. at which the jury arrived. It is true that one of the grounds of the motion in arrest of judgment is that the verdict was against the weight of the evidence, but none of the testimony is preserved and this point cannot be considered at this time. I infer, however, that the evidence fully sustained the verdict and that no injustice was done to the defendants. Several other errors are assigned, predicated however upon the insufficiency of the indictment to charge a felonious assault. Holding the indictment good for assault and battery disposes of these objections, and renders a further consideration of them unnecessary. No substantial error appearing in this record, the judg ment of the District Court must be affirmed. Judgment affirmed. BREWER v. OTOE COUNTY. Brewer v. Otoe County. 1 CONSTITUTION: Act impairing the obligation of a contract. An act requiring the holder of a county warrant, which is over due and which draws ten per cent per annum interest, to present the same at the treasury, and surrender it and take in its place bonds drawing interest at seven per cent per annum, payable at a distant day, is unconstitutional. 2. STATUTE OF LIMITATIONS: County warrants. The Statute of Limitations does not limit the time within which proceedings to enforce the payment of county warrants shall be instituted. 1st arg. The whole course of legislation shows that county warrants are not within the statute. 2d arg. The cause of action upon a county warrant does not accrue when the warrant is issued, but only when the money for its payment is collected, or time sufficient for the collection of the money has elapsed. 8. ACTIONS ON COUNTY WARRANTS. A petition alleging the issue and non-pay ment of a county warrant, without alleging that there is money in the treasury for its payment, or that time has elapsed for the collection of the money by taxation, will be dismissed without prejudice. This was a petition in error to the District Court for Otoe county. Brewer filed in that court his petition as follows: I. The said Francis B. Brewer, plaintiff, complains of the said Otoe county, defendant, for that the said defendant, on the fifth day of February, 1863, at Nebraska city, in said county, by and through the then Board of County Commissioners of said county, made and drew her certain warrant in writing of that date, on the treasurer of said county, signed by one George T. Lee, the then president of said board, and countersigned by one E. W. Botsford, clerk of said county, and attested by the seal of said county being thereto affixed, and then and there delivered the same to the said plaintiff, and thereby and therein ordered and directed the said treasurer to pay to the said plaintiff, by the name and description of Francis Brewer, or order, the sum of eighty-one dollars and forty-eight cents, out of BREWER V. OTOE COUNTY. any money in the treasury of said county not otherwise appropriated. That afterwards, and on the 7th day of January, 1863, the said plaintiff presented said warrant to the treasurer of said county, and demanded payment of the same, which was refused by said treasurer, who thereupon, on the day and year last aforesaid, endorsed on said warrant," presented and not paid for want of funds," That said defendant has not paid said sum of money nor any part thereof to the said plaintiff, although often requested so to do, and that there is now due to the said plaintiff from the said defendant, on the said warrant, the said sum of eighty-one dollars and forty-eight cents, which he claims with interest thereon from the 7th day of January, A. D. 1863, at the rate of ten per cent per annum, a copy of which warrant is hereto attached as follows: $81.48. Fiscal year, A. D. 1862. No. 471. Treasurer of Otoe county, pay to the order of Francis Brewer the sum of eighty-one dollars and forty-eight cents, out of any money in the treasury not otherwise appropri ated. GEORGE T. LEE, President Board County Com. Given under my hand and the seal of said county, this 5th day of January, 1863. E. W. BOTSFORD, County Clerk Otoe County, N. T. Endorsed on back as follows: "Presented and not paid for want of funds." JANUARY 7, 1863. J. W. PEARMAN. The petition contained fourteen counts of the same char acter. To the petition a general demurrer was filed as fol. lows: BREWER v. ОTOE COUNTY. "The said defendant demurs to said petition of said plaintiff, because it does not state facts sufficient to constitute a cause of action." This demurrer was overruled by the court, and defendant required to answer. The defence set up by the defend. ant appears in the opinion of the court. To the answer a demurrer was filed, which was sustained, and judgment given for the plaintiff for the amount claimed, to which defendant excepted. It then brought the case here by petition in error. S. H. Calhoun and John H. Croxton, for plaintiff in error. This action is founded on seventeen Otoe county warrants, of different denominations, issued by the commissioners of Otoe county, drawn on the treasurer of said county and ordering him to pay the amounts therein specified, to the payees, out of any money in the county treasury not otherwise appropriated, without naming any time at which the same should be paid, and without naming any rate of interest. They were, however, presented to the treasurer, and by him indorsed, "presented and not paid for want of funds," By statute, from this indorsement, the warrants would draw ten per cent per annum interest. These warrants bear date, and were presented as follows. On the 10th of February, A. D. 1865, an act to provide for the funding of the warrants of Otoe county was approved, by which it was enacted that all Otoe county warrants bearing date prior to January 1, 1864, and outstanding, should be presented and bonded before the first day of December, 1865, or be forever barred, and that such warrants should thereafter be null and void. Said bonds to be payable on or before January 1st, A. D. 1873. These warrants amounting, as alleged in defendant's petition to $411.40, were not presented and bonded under said funding act. Nor were said warrants ever presented for bonding under said act, and consequently no refusal was ever given by said county to bond them. Therefore, by the terms of said act, said warrants are barred, and defendant had no cause of action. But plaintiff claims that the legislature of Nebraska did not possess the power and authority to enact such an act, that such act impairs the obligation of the contract made by the county with the payees of said warrants, and, therefore, said act is unconstitutional and void under section 10 article 1 of the Constitution of the United States. In considering this objection the question naturally occurs, What is the nature and scope of this law? Is it a limitation law, which affects only the remedy? |