MURRY V. MILLS.

submission in writing, and bearing date the 28th day of January, A. D. 1863, more fully appears. Now, therefore, know ye, that we, the arbitrators mentioned in the said submission, having been first duly sworn according to law, and having heard the proofs and allegations of the parties, and examined the matters in controversy by them submitted, do make this award in writing, that is to say the said George M. Mills is indebted to the said Thomas Murry in the sum of two hundred dollars, and we do find, award, adjudge and decree that the said George M. Mills pay to the said Thomas Murry the said sum of two hundred dollars as the balance due said Thomas Murry from the said George M. Mills upon the several matters submitted to us in and by the said submission in writing, and signed by the said George M. Mills and Thomas Murry.

"In witness whereof we have hereunto subscribed these presents this fourth day of February, 1863.

"S. J. GOODRICH.

"OSCAR F. DAVIS. "S. N. PARMELEE."

These papers being filed in the District Court for Doug las county, Murry filed his motion as follows:

"And now comes the said Murry, and moves the court for judgment upon the award heretofore made in this cause, in accordance with the statute in such case made and provided, and the stipulation in the articles of submission, and for the amount found due said Murry by said arbitrators, as shown by their award now on file in this cause, &c." And Mills at the same time filed his exceptions as follows:

"1. The said arbitrators have not, in the said award, stated the facts found by them on the evidence, and the matters submitted to them on said arbitration.

"2. The said arbitrators have not, in the said award,

MURRY v. MILLS.

stated the facts found by them and their conclusions of law on said arbitration separately.

"3. The said arbitrators have not, in the said award, stated the facts proved and submitted to them.

"4. The said arbitrators have not, in the said award, given their decisions on the facts proved and submitted to them and their conclusions of law separately."

The motion for judgment was overruled and the excep tions were sustained, and the award set aside by the judg ment of the court. Thereupon Murry brought the cause to this court by petition in error.

The provisions of law construed in this cause were the following: Sec. 866 of title XXVIII of the Revised Statutes, page 545, is as follows: "All the rules prescribed by law. in cases of referees are applicable to arbitrators, except as herein otherwise expressed, or except as otherwise agreed upon by the parties."

Section 300 of the Code of Civil Procedure is as follows "The trial before referees is conducted in the same manner as a trial by the court. They have the same power to summon and enforce the attendance of witnesses, to administer all necessary oaths in the trials of the case, and to grant adjournments, as the court upon such trial. They must state the facts found and the conclusions of law separately, and their decision must be given, and may be excepted to and reviewed in like manner. The report of the referees upon the whole issue stands as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court." When the referees is to report the facts, the report has the effect of a special verdict."

W. A. Little, for plaintiff in error.

J. M. Woolworth contra.

MURRY V. MILLS.

The court, by KELLOGG, Ch. J., held that the provision of the Code above quoted was, by the section in the chapter on arbitrations above quoted, made applicable to the report of the arbitrators, and that such report must, to have any validity to support a judgment, state the facts found by the arbitrators and their conclusions of law thereon separately. As this report does not conform to this requirement of the statute it must be set aside. The motion for judgment was rightly overruled, and the exceptions filed by Mills to the report were rightly sus tained. The judgment must be affirmed.

Judgment affirmed.

BENNETT v. TOWNSEND.

Bennett v. Townsend.

1 PRACTICE: If a suit be brought against three parties jointly and severally liable, two of whom only are served, it is not error to enter judgment against those served and omit therefrom the other.

Townsend filed his petition in the District Court for Otoe county, against John P. Bennett, H. P. Bennett and Elisha Bennett, upon a joint and several promissory note made by them to him. John P. Bennett and Elisha Bennett, were duly served with summons, but II. P. Bennett was not served. Judgment by default was entered against the defendants who were served only. The defendants brought the case here by petition in error.

O. P. Mason, for plaintiff in error, contended that it was necessary to enter judgment against all or none of the defendants in the writ, and cited Russell v. Hogan, 1 Scam. 552; Owen v. Bond, Breese 91; Ladd v. Edwards, Breese 139; Robertson v. Smith, 18 Johnson; Hosey v. County of Macoupin, 2 Scam. 36; Wright v. Meredith, 4 Scam. 361; Freeman's Illinois, Dig. 2, 975.

H. H. Harding, contra.

The court, by STREETER, J. The judgment was rightly entered against the defendants served. It was not error not to make it in form against the defendant who was not served.

Judgment affirmed

THE PLATTE VALLEY BANK v. HARDING.

The Platte Valley Bank v. Harding.

1. NIEL TIEL CORPORATION. The maker of a note which is in terms payable to a bank, cannot, in an action brought by it thereon, raise the question of its incorporation. He is estopped to deny it.

The Platte Valley Bank sued Harding in the District Court for Otoe county, upon a promissory note made by him, whereby he promised to pay to "The Platte Valley Bank or order, $400, etc." The plaintiff claimed to be incorporated by an act of the legislature of the Territory of Nebraska. The defendant denied that it was incorporated, because, he insisted, that the alleged act of incorporation conflicted with an act of Congress entitled "An act to disapprove and annul certain acts of the Territorial Legisla ture of Florida, and for other purposes."

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled :

That no act of the Territorial Legislature of any of the Territories of the United States incorporating any bank or any institution with banking powers or privileges, hereafter to be passed, shall have any force or effect whatever until approved and confirmed by Congress.

Judgment was given for the plaintiff, and the defendants brought the case here by petition in error.

J. M. Woolworth, for plaintiff in error.

J. F. Kinney, contra.

The Court, by HALL Ch. J., held that the question of the incorporation of the bank could not be raised in this cause, because the defendants were estopped to deny the same. Judgment affirmed.