Criminal Code, and the omission of the word "chosen" is not fatal.
Kruger v. The State.....
1st. The word "selected," coupled with the word "chosen," in
the form, signifies the same...
2d. The omission of the word "chosen" is of no practical import-
ance, and therefore section 170 requires it to be disregarded id
13. -: 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 .....
― : 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
· 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 con-
versation with any person, to permit the jurors to separate for their
meals
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
They have jurisdiction to determine questions of settle-
ment and improvement, between different pre-emption claimants,
which are questions of fact; and their decision thereon is conclusive
upon the parties and the court......
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
ex parte without the presence of the party interested adversely to the
applicant, is not conclusive. Lindsey v. Hawes, 2 Black, 554, examined
and distinguished..............
5. FILING TWO DECLARATORY STATEMENTS. The act of Sept. 4, 1841 re
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, 56
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
·: 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 con-
struing the act, to limit the effect of the terms employed........... id
9. LAND IS NOT WITHDRAWN, from pre-emption, by the circumstance that
a company has endeavored to build a town thereon, after the enter-
prise has been abandoned......
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 pre-
emption 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 pre-
emption claim, an agreement to do what was afterwards done....... 57
: OBJECT OF RESTRICTIONS. The several provisions of the pre-
emption act of September 4, 1841, as to settlement, cultivation, in-
habitancy, &c., were designed to secure permanent, actual settlers on
the public lands. Tousley v. Johnson..
Such a settler will not be deprived of the benefits of the
act, by giving to some provision of law a harsh and inequitable con-
struction, when applied to his case, unless the terms of the statute
clearly and imperatively require it.......
13. -: Priority. The first settler who has complied with all the pro-
visions of the law in good faith, is entitled to the land settled upon,
whatever any subsequent settler may do in respect thereof........
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 mort-
gaged his supposed interest under the invalid claim, will not vitiate
his pre-emption right......
Nor will conveyances of the lands after he has pre-
empted them. invalidate his entry...........
•: 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....
17. Smiley v. Sampson, ante, followed.......
1. An endorser of a promissory note who waives notice of protest will
be relieved from liåbility 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..........
See NIEL TIEL CORPORATION 1
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.....
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...
-: 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.
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....
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......
4. EQUITY OF REDEMPTION: Interest of execution purchaser. A purchaser
at execution sale of an equity of redemption against whom a decree
of foreclosure and sale has been entered, for a sum greatly in excess
of what the premises afterwards bring on the sale, who has consented
to the decree and withdrawn his appeal therefrom, has no interest in
the premises and can convey none....
1 THE RELEASE of one of several joint obligors operates a release of all.
Neligh v. Bradford.......
Removal of Causes to Federal Court.
1. The acts of congress do not authorize the removal of causes from State
to Federal Courts, on the ground of prejudice or local influence, unless
1st. The application for removal be made before the trial or final
hearing in the State Court of original jurisdiction; and
2d. The affidavit of prejudice or local influence be made by the
party in person.
3d. The application, when made by one of several defendants, must
be made in a cause which may be effectually proceeded in
against one defendant separately from the other. Miller v.
Finn.....
1. -: Demand. Under the Code, in Nebraska, in an action of replevin,
in which ownership in the plaintiff is established, proof of demand by
him of the defendant of the property before suit, is not necessary to
maintain his action. Homan v. Laboo....
If, at the service of the order, the defendant is not the
owner of, or has not a special interest in the property, but holds the
same innocently, only nominal damages can, without demand, be
recovered by him...........
If such be the fact he should so plead, and then he will
have nominal damages and costs.......
If such be the fact, but he alleges property in himself,
demand need not be proved in order to maintain the action against
him
-: Replevin will lie to recover the possession of buildings erected on
a lot of ground by a party claiming title thereto, who, by judicial
determination, has been evicted therefrom, if the buildings were by
him set upon blocks, and were not, at the time of eviction, affixed to
the soil, notwithstanding another being afterward in possession did
affix them to the soil, and they were so affixed when the replevin was
brought. Mills v. Regick
The decision of a tribunal acting within its jurisdiction, whether
it be a court or merely a board, or an officer having special enumer-
ated powers, can be reviewed or set aside only by a direct proceeding
for that purpose. Mills v. Paynter........
The mayor of a city under the town site act, in determining a
controversy between adverse claimants to the same lot, acts judicially,
and his decision can be reviewed only by appeal.....
A verdict of a jury is not admissible, to show that the matter
has been determined, even if it be between the same parties for the
same cause of action; because it is not conclusive of the matter.
McReady v. Rogers...........
1. POWER TO REMOVE TEACHERS. A statute empowering a school board
to employ teachers and remove them at pleasure, enters into and
forms part of a contract made by the board with a teacher for his ser-
vices for one year; and he may be discharged within that time not-
withstanding the terms of his employment. Jones v. Nebraska City, 176
2. JURISDICTION: To inquire the cause of removal. The court has not juris-
diction to inquire the cause of the removal, nor whether the cause
alleged be sufficient.....
Sheriff.
See ATTACHMENT 2.
1. BONA FIDE PURCHASER. A purchaser at execution sale of lands, who,
under the act of 1857, had the sheriff's certificate, but had not yet
received his deed, was protected against an unrecorded prior mort-
gage upon a bill of foreclosure, filed before the expiration of the time
allowed a defendant to redeem his lands sold on execution. Bennett
v. Fooks & Moffit .....
2 ORDERS CONFIRMING SALES.
Until a sale of real estate, on execution or
order, is confirmed, either party to the same, and also the purchaser
may object thereto. Phillips v. Dawley......
RIGHTS OF PURCHASER. A person by becoming a purchaser at a judicial
sale, becomes a party thereto, and may be compelled to complete his
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