Изображения страниц
PDF
EPUB

within the 75th section of the Code, upon whom a summons
may be served. It is immaterial where he resides. Porter V.
The Chicago $ N. W. R. R. Co........

14

-: Appearance. A defendant may appear specially to object
to the jurisdiction of the court, either over his person or the
subject matter of the suit, without waiving his right to be
heard on these questions in bank. Per Mason, Ch. J.....

id

: But if he seeks to call into action any power of the court
except on the question of its jurisdiction, his appearance is
general

id

8. VERDICT a. The appellate court will presume the verdict of the jury

sustained by the evidence, unless the contrary fully appear. The
Midland Pacific Railway Co. v. McCartney

898

b.

All the evidence adduced on the trial should be
preserved in the bill of exceptions, and the fact be accord.
ingly stated, in order to justify a claim that the court below
erred in refusing a new trial, asked for on the ground that
the verdict was not sustained by sufficient evidence

id

6. —: It is not usual for courts to disturb the verdict of a jury,

because it is against the weight of evidence, when there is any
evidence to support it. Jones v. Edwards.....

170

..

d -: A verdict which finds two inconsistent facts, is void, and

cannot be the foundation of a legal judgment. Meredith v.
Kennard

812

-: The verdict must respond to all the material issues
between the parties ...

id

:

f. —: Cases may occur, when a general verdict alone will be a

substantial response, to the issues taken by special matters

set up in the pleadings.
Sve Actions 1. ARBITRATIONS 1. ATTACHMENT 1, 2. CREDITOR'S BILL 1.

Damages 1, 2. EVIDENCE 1, 2, 3, 4, 5. JUDGMENT 1, 3, 4, 5, 0.
JUDICIAL SALE 1, 2. LEx Loci CONTRACTUS. MANDAMUS 1.
MECHANICS' LIEN 1. OFFICER 2. PARTIES. Quo WARRANTO 1, 2.
RES ADJUDICATA 3.

[ocr errors][merged small]

Practice in Criminal Cases.
-: Section 166 of the Criminal Code, as enacted while Nebraska
was a Territory, providing that the indictment shall run in the name
of “The Territory of Nebraska," is modified by the clause of the
constitution which provides that it shall run in the name of "The
People of the State of Nebraska.” Burley v. The State..

885
2 -: Called lerms. It is not necessary that the record should show

affirmatively that every step was taken to convene the court at a called term, in order to support the proceedings had thereat, provide ing enough appears to establish the facts

886

8.

: Pleading. A plea to the jurisdiction which only alleges conclusions of law, and not facts adverse to the jurisdiction, is not good

id

4.

: - It is error to put a prisoner upon his trial before he has plead to the indictment....

id

6.

But if the defendant plead “not guilty," and afterwards file his motion to quash and plea in abatement and they are determined, and the trial proceeds without a renewal of the plea of “not guilty," the presumption is that it, as first interposed, was not withdrawn.

[ocr errors]
[ocr errors]

-: Evidence. It is error to refuse to permit, on cross-examination, a question as to his being intoxicated being put to a witness, who, on his direct examination, has testified to acts and declarations of the accused and the deceased before the homicide, which tend to fasten guilt on the former

id

[ocr errors]

7. —: Filling vacancies in juries. It is error to fill vacancies in the

grand jury from the list of persons summoned as petit jurors, and it is not material whether any injustice was thereby suffered by the prisoner

886

8.

: Called terms : Records in criminal cases. In a criminal case for felony, in which the indictment or other proceedings are had at a called term of the court, the record should show the request made by the county commissioners to the judge for the term, the order of the judge thereon, and the due publication of notice of the holding of the court

886

9. —: Record in criminal cases for felony should show that a venire for

summoning the juries has been issued to the sheriff and been by him executed, or that the court, by its order, directed the summoning of the juries

[ocr errors]

10.

The record should also show that the prisoner was present at and during the trial, and at the rendition of the verdict..

id

11.

-: Waiving a right. Nor can the prisoner waive his right thus to be present when on trial for a capital felony ....

[ocr errors]

12. - : Pleading: The caption. It is not necessary to follow, literally,

the form for the caption to an indictment given in section 166 of the

Criminal Code, and the omission of the word “chosen” is not fatal
Kruger v. The State.....

.... 866

1st. The word “selected,” coupled with the word “chosen," in

the form, signifies the same.....

id

2d. The omission of the word "chosen” is of no practical import

ance, and therefore section 170 requires it to be disregarded id

18. —: Assault with intent to kill. An indictment for an assault with

intent to kill, should charge that the assault was made with a weapon. which ex vi termini imports a deadly weapon, or charge specifically that the weapon was deadly

id

14.

-: Assault and battery. An indictment alleging an assault of such a character as would support a charge of assault with intent to kill with a wooden club, if it described the club as a deadly weapon, will, when those terms are omitted, support a conviction for assault and battery ...

id

16

id

16.

: Arraignment. In misdemeanors it is sufficient if the counsel of the prisoner waives the reading of the indictment, and enters the plea of not guilty without a formal arraignment..... —: Jury separating. It is not error in a case of misdemeanor for the court, having instructed the jury, as is usual, not to hold conversation with any person, to permit the jurors to separate for their meals

See LARCENY 1.

Pre-emptions. 1. —: OF LAND OFFICERS. The register and receivers of the local land

office and their superiors in the land department, form a special tribu. nal for some purposes and to a certain extent. Smiley v. Sampson... 56

2.

They have jurisdiction to determine questions of settlement and improvement, between different pre-emption claimants, which are questions of fact; and their decision thereon is conclusive upon the parties and the court....

8.

[ocr errors]

They have not jurisdiction to determine conclusively questions arising between one settler and the government, which are generally questions of law. On these questions the courts are not concluded by their decisions ...

Their decision on an application to pre-empt, when made ez parte without the presence of the party interested adversely to the applicant is not conclusive. Lindsey v. Hawes, 2 Black, 554, examined and distinguished......

6. FILING TWO DECLARATORY STATEMENTS. The act of Sept. 4, 1841 reo

quires the filing of a declaratory statement of intention to pre-empt a tract of land, only when the tract claimed is subject to private entry, 66

[ocr errors]
[ocr errors]

8. — The act of March 3, 1843, prohibits a second filing, only under

the act of '41; i. e., only on lands subject to private entry.....

id

7. STATUTORY CONSTRUCTION. General words of a statute will be restrained,

when they clearly were not intended to include a particular act or thing ......

id

[ocr errors]

-: The mischief. Where a matter is clearly out of the mischief

intended to be guarded against, and thus is out of the spirit, although it be within the letter of the act, it is the duty of the court in construing the act, to limit the effect of the terms employed. ....

id

9. LAND 18 NOT WITHDRAWN, from pre-emption, by the circumstance that

a company has endeavored to build a town thereon, after the enterprise has been abandoned......

id

10. FRAUD. If an indigent party give for a house standing on a tract of

the public land, his note for $3,000, and thereupon asserts a preemption claim to the tract, without making any other improvement thereon, and as soon as he effects his entry, conveys a large tract to the payee of the note, in discharge thereof, and also conveys most of the remainder to parties, who as witnesses and attorneys have aided him in securing it, and who have previously endeavored to secure it by fraudulent practices, these circumstances unexplained, justify the opinion that there was at the time of his first asserting his preemption claim, an agreement to do what was afterwards done. ...

57

[ocr errors]

11.

-: OBJECT OF RESTRICTIONS. The several provisions of the preemption act of September 4, 1841, as to settlement, cultivation, inhabitancy, &c., were designed to secure permanent, actual settlers on the public lands. Tousley v. Johnson.

95

12.

Such a settler will not be deprived of the benefits of the act, by giving to some provision of law a harsh and inequitable construction, when applied to his case, unless the terms of the statute clearly and imperatively require it.....

id

18.

-: Priority. The first settler who has complied with all the provisions of the law in good faith, is entitled to the land settled upon, whatever any subsequent settler may do in respect thereof....

id

14.

-: Conveyances in fraud of the law. A person occupying a portion of the public land under a supposed right, may, after such right fails, assert a pre-emption claim thereto; and the fact of his having mortgaged his supposed interest under the invalid claim, will not vitiate his pre-emption right.....

id

15.

- Nor will conveyances of the lands after he has pre-
compted them. invalidate his entry....

95

16.

—: Town improvements. Surveying a tract of public land and
dividing it into town lots, making a plat of it as a town, and building
one house on one lot, are acts insufficient to impress upon it the char-
acter of a town, so as to withdraw it from the operation of the pre-
emption law. And especially so, after the design of building the
town has been abandoned.....

id

17. Smiley v. Sampson, ante, followed......

id

Promissory Notes.
1. An'endorser of a promissory note who waives notice of protest will

be relieved from liability thereon, if the holder does not notify him
within a reasonable time of its non-payment nor use due diligence
to collect it of the maker. Moffat v. Griswold ....

415
See Niel TIEL CORPORATION 1

:

Quo Warranto.
1. —: Answer. An allegation in an answer to an information in the

nature of a quo warranto, that the defendant had given a bond " for
the faithful performance of all the duties required by law of him in
consequence of his said election to the office” in question, is a suffi-
cient allegation that he has given the bond required by law. The
People v. McCallum ......

... 182

2. —: Pleading. A pleading which is ambiguous is not for that reason

liable to demurrer. The proper remedy is motion to make it more
certain....

... id
See Bonds 1, 2.

Redemption
1. —: A subsequent incumbrancer has a right to redeem the senior lien,

on paying the amount thereof, by an assignment thereof, but not to
take the possession. Miller v. Finn......

255

2. —: A judgment creditor not a party to a foreclosure suit, is entitled

to pay the mortgage debt, and have an assignment of a mortgage
senior to his lien until the decree.....

.... id

8.

-: After a decree of foreclosure, such a party may be permitted to

redeem the mortgage, or may be compelled to receive the amount o.
his judgment, as the court in its discretion shall think just between
the parties....

id

4. EQUITY OF REDEMPTION : Interest of execution purchaser. A purchaser

« ПредыдущаяПродолжить »