GEORGE v. STATE.

Filed August 20, 1884.

1. PRACTICE AND PROCEDURE-CROSS-EXAMINATION OF WITNESS-CONTRADICTION.

When a witness is cross-examined on a matter collateral to the issue, he cannot, as to his answer, be subsequently contradicted by the party putting the question. 2. SAME-COLLATERAL MATTER.

The test of whether a fact inquired of in cross-examination is collateral, is, would the cross-examining party be entitled to prove it as a part of his case, tending to establish his plea?

Error from Douglas county.

Redick & Redick, for plaintiff. The Attorney General, for defendant. COBB, C. J. The plaintiff in error was tried and convicted at the February term, 1884, of the district court of Douglas county. The indictment contained two counts: the first charging the plaintiff in error with having, on the nineteenth day of November, 1883, stolen from the person of one Louis Brown the sum of $70. The second count charges him with, at the date aforesaid, assaulting the said Louis Brown with intent to steal from the person of said Brown the sum of $70. The jury found him not guilty upon the first count, and guilty under the second count. Being sentenced to six years in the penitentiary, he brings the cause to this court on error.

There are two points insisted upon: (1) That the verdict is not sustained by the evidence, and is contrary to law; and (3) for errors .of law occurring

at the trial.

The second, fourth, and fifth grounds of error assigned in the petition in error are substantially abandoned in the brief, and were not insisted upon at the hearing. They will, therefore, not be further noticed, nor will the first point, further than to say that whatever might be my opinion as to whether or not the verdict is sustained by the evidence, having reached the conclusion that there must be a new trial for the causes assigned under the third head, it is deemed unadvisable to make any comment on the evidence.

On the trial the prisoner was sworn as a witness in his own behalf. Upon his cross-examination the district attorney put the following question to him: "Question. Did you approach this girl and another girl by the name of Mamy, and a gentleman with them, these three sitting at a table down in the Tivoli garden, last August, and say to Mamy, in the hearing of this girl referred to, This fellow has got money; come and get into the hack, and I will drive you out, and we will have a chance to get it, or fix him, or anything of that sort?" The witness answered, “No, sir." After the defense rested, the district attorney, on the part of the state, recalled Frankie Driscoll, a witness who had been previously sworn and examined on the part of the state, she being the person referred to in the foregoing question as "this girl," and put the following question to her. I quote from the bill of exceptions: “Question. Do you recollect one night last August of seeing Lon George down at the Tivoli garden? (Objected to as immaterial, and no proper rebutting testimony, and leading. Overruled, and defendant excepts.) Answer. Yes, sir. Q. Who were you with? 4. I was alone. Q. Who did you see there with Lon George, or did Lon George speak to you? 4. No, sir. Q. Who were you sitting with when he came up? (Objected to as improper. Overruled. Defendant excepts.) A. He was not talking to me, but a girl sitting on the same bench that I was on one side, and a gentleman was sitting on the other side of the table. Q. What is her name? 4. Mamy. Q. What did Lon say to Mamy in your presence? 4. He said this man has got money, and if you will get a hack and go out to the Road House, we will fix him all right."

It will be borne in mind that the alleged robbery, for which accused was being tried, occurred on the nineteenth day of October, and this meeting, of

which witness was interrogated, was claimed to have occurred in the month of August preceding. Anything about the latter circumstance was therefore a collateral matter in the trial. It cannot be claimed that the district attorney could have been permitted to ask of a witness on the part of the state, on his direct examination, the question that he was permitted to ask the accused on his cross-examination. It would have been open to almost every objection which lies to any question in any case. And this is the test: If the question put to a witness on the part of the state, on his direct examination, would have been objectionable as being no part of the state's case, then it is collateral, and the party asking it is bound by the answer, and will not be permitted to call another witness to contradict him. See 1 Whart. Ev. § 559, and 40 cases there cited, constituting the whole current of authorities from 7 East to 1 Tex. Ct. App. And I do not think that a single case can be found holding to the contrary. And this testimony was highly prejudicial to the plaintiff in error, in fact. But I do not enlarge upon that, as I desire to put this decision and opinion squarely on the law as I think it has been universally understood and settled for ages.

The judgment of the district court is reversed, and the cause remanded for further proceedings in accordance with law.

Ex parte THOMASON.

Filed August 20, 1851.

CONSTITUTIONAL LAW-TITLE OF ACT.

That part of "An act to prevent the fraudulent transfer of personal property," approved February 13, 1877, which makes it criminal to remove mortgaged property out of the county within which such property was at the time of the execution of the mortgage, held unconstitutional, as not being expressed in the title of the

act.

Habeas corpus.

J. L. Caldwell, for relator.

REESE, J. This is an original application for a writ of habeas corpus. The petitioner was arrested upon a warrant issued by the county judge of Lancaster county, charging him with the crime of "aiding and abetting one William Thomason in removing chattel mortgaged property out of the county of Lancaster without first obtaining the consent of the mortgagee, with intent to defraud. A preliminary examination was had, and the accused was held to await the action of the grand jury. Failing to give bail, he was remanded to jail. He now applies to this court for his release, and alleges that he is unlawfully imprisoned by the sheriff of Lancaster county.

Two questions are presented for consideration: One, that the complaint does not charge the commission of any acts which are made criminal by the law of Nebraska; or, in other words, that there can be no such thing as aiding and abetting the removal of mortgaged personal property in the sense of the law by one who is not a party to the mortgage. The other question presented is the constitutionality of the law under which it is sought to hold the accused. As the latter question may be said to be the primary one in this case, it demands our first attention; and if the law should be found to be unconstitutional it would obviate any inquiry into the first.

The act to which objection is made may be found at page 5 of the Laws of 1877, (Comp. St. p. 83, § 9.) It is claimed by the petitioner that the title of the act is not sufficient; that it does not comply with the constitutional requirement that "no bill shall contain more than one subject, and the same shall be clearly expressed in its title." The title is as follows: "An act to prevent the fraudulent transfer of personal property." The act in question provides "that any person who, after having conveyed any article of personal

property to another by mortgage, shall, during the existence of the lien or title created by such mortgage, sell, transfer, or in any manner dispose of the said personal property or any part thereof so mortgaged, to any person or body corporate, without first procuring the consent of the mortgagee of the property to such sale, transfer, or disposal; or shall remove, permit, or cause to be removed said mortgaged property or any part thereof out of the county within which such property was at the time such mortgage was given on it, with intent to deprive the mortgagee of his security, without having first obtained the consent in writing of the mortgagee of such property to such removal,--shall be deemed guilty of a felony, and, on conviction thereof, shall be imprisoned in the penitentiary for a term not exceeding ten years, and be fined in a sum not exceeding one thousand dollars."

It is not deemed necessary to discuss that part of this act which refers to the sale, transfer, or disposal of mortgaged property. As to the constitutionality of that part of the act we express no opinion, that question not being necessarily before the court.

Referring again to the title of the act, we find it is limited to the single purpose of preventing "the fraudulent transfer of personal property." The word "transfer" is evidently used in its legal sense, and with reference to its legal meaning. In Bouv. Law Dict. the word is defined to be "the act by which the owner of a thing delivers it to another person, with the intent of passing the right he had in it to the latter." And this definition is approved in Robertson v. Wilcox, 36 Conn. 426. In Innerarity v. Mims, 1 Ala. 669, it is said: "The term 'transfer' means to convey or pass over the right of one person to another, unless the general meaning is restrained or limited by something accompanying it." See, also, Winfield, Adjudged Words & Phrases. This being the meaning of the word, it is quite diflicult to see how the title can be said to "clearly" express the subject of the act, for it cannot be successfully maintained that the removal of property from one county to another is a "transfer" of the property thus removed. Assuming that the title is sufficient to express the subject contained in that part of the act which refers to the sale, transfer, or disposal of mortgaged property, it must then be conceded that it excludes all idea of removing property from one place to another, whatever the intent of the person causing the removal may be.

As to the propriety of the clause of the constitution, and the necessity of a strict compliance with its terms, it is not now necessary to speak, as it has been often held by this court, as well as by the courts of all other states having a similar constitutional provision, that it is mandatory and must be obeyed, and that it is a wise provision, calculated to prevent surreptitious legislation by incorporating into a bill obnoxious provisions of which the title gives no indication.

It follows that that part of the act which makes the removal of mortgaged personal property a crime, is not within the purview of the title, and is therefore void. Boggs v. Washington Co. 10 Neb. 297; S. C. 4 N. W. REP. 984; City of Tecumseh v. Phillips, 5 Neb. 305; White v. City of Lincoln, Id. 505: State ex rel. v. Lancaster Co. 6 Neb. 474.

The prisoner, being unlawfully restrained, must be discharged from custody; and it is so ordered. Judgment accordingly.

BAZZO v. WALLACE.

Filed August 20, 1884.

1. PRACTICE AND PROCEDURE-APPEAL BOND-OBJECTION TO.

Where objection is made by motion to an appeal bond, the defect complained of must be specifically pointed out. It is not sufficient to object generally, as that the bond does not conform to the requirements of the statute.

2. SAME-DEFECTS IN BOND.

An appeal bond duly filed and approved is not void, and if defective may be amended or a new bond given.

3. SAME-ORDERS AND JUDGMENTS OF DISTRICT COURT APPEALABLE.

An appeal will lie to the district court from an order, judgment, or decree of the county court in all matters of probate jurisdiction.

4. SAME TIME FOR FILING APPEAL BOND.

The appeal bond is to be filed in 30 days from the date of the order or judgment appealed from, and the transcript to be filed in the district court within 10 days after the expiration of the 30 days.

The act of February 28, 1881, in relation to appeals from the decision of the county court in certain matters, does not require a notice of appeal to be given to the adverse party.

The consent of the county judge is unnecessary to obtain an appeal.

Error from Douglas county.

George W. Doane and E. W. Simeral, for plaintiff. Howard B. Smith, for defendant.

MAXWELL, J. On the tenth day of January, 1883, the will of one Annie Wallace was admitted to probate in the county court of Douglas county, the defendant being the executor. On the sixteenth of that month the plaintiffs herein filed a bond in said court for an appeal to the district court, which bond was duly approved. A transcript was duly filed in the district court on the fifth day of February following. At the next term of the district court the attorney for the defendant filed a motion to dismiss the appeal, for the following reasons: "(1) That no such bond for an appeal was given herein as is required by law; (2) that no appeal bond has been given herein; (3) that no transcript was filed in this court within the time required by law; (4) that the notice of appeal in this case is not sufficient in law; (5) that said notice of appeal was not served within the time required by law; (6) that there has been filed in this court no proper evidence of the notice of appeal as required by law; (7) that said appeal was not granted by the court below as required by law; (8) that appeal does not lie to this court from the county court in this case. The motion was sustained and the appeal dismissed.

The objections to the bond are too general to be considered. If a bond is defective in any particular, the party objecting should specifically point out the defect. It is not sufficient to object generally, as that the bond does not conform to the requirements of the statute. A bond filed and duly approved is not void; and, even if defective, may be amended or a new bond given. O'Dea v. Washington Cơ. 3 Neb. 122; Casey v. Peebles, 13 Neb. 7; S. C. 12 N. W. REP. 840. The objections to the bond, therefore, did not justify the court in dismissing the appeal.

2. Section 1 of “An act providing for an appeal from the decision of the county court in certain matters," approved February 28, 1881, provides that "in all matters of probate jurisdiction appeals shall be allowed from any final order, judgment, or decree of the county court to the district court, by any person against whom any such order, judgment, or decree may be made, or who may be affected thereby." The section above quoted provides that in all matters of probate jurisdiction an appeal will lie to the district court. This certainly includes the probate of a will.

3. Section 2 of the act above referred to provides that an appeal shall be taken within 30 days after the decision complained of is made, and section 5 requires the county court, on payment of fees, to transmit to the clerk of the district court a certified transcript within 10 days after perfecting the appeal; that is, the appellant may file the bond for an appeal at any time within 30 days, and the transcript is to be filed in the district court within 10 days from the expiration of the 30 days, or within 40 days from the date of the order or judgment appealed from. First Nat. Bank v. Bartlett, 8 Neb. 319; S. C. 1 N. W. REP. 199.

4. The act of 1881 is a complete act in itself for the regulation of appeals in all matters of probate jurisdiction, and all that is necessary to perfect an appeal in such cases is to comply with its provisions. No notice is required nor need be given, the filing and approval of the bond as in justice's court being all the notice required. Nor has the county court any option in granting the appeal, it being a right possessed by every one against whom an order, judgment, or decree has been rendered, or may be affected thereby. As the plaintiffs come within this designation, they have the right to appeal. The judgment of the district court is reversed, and the cause remanded to the district court for further proceedings.

Bazzo v. WALLACE.

Filed August 20, 1884.

1. PRACTICE AND PROCEDURE-GENERAL APPEARANCE-AGREEMENT FOR CONTINUANCE. A party who, by his attorney, enters into a written agreement to continue a cause until a subsequent term of the court, thereby enters a general appearance in the action.

2. SAME APPEAL-TRANSCRIPT-PETITION IN ERROR.

Where a transcript was duly filed within the time required by law for an appeal, and the defendant had entered an appearance, the court, in furtherance of justice, may, upon terms, permit the appellant to file a petition in error after the expiration of a year from the date of the rendition of the judgment.

Motion to dismiss..

George W. Doane and E. W. Simeral, for the motion. Howard B. Smith, contra.

MAXWELL, J. In February, 1883, the plaintiffs appealed to the district court from an order of the county court of Douglas county admitting the will of one Annie Wallace, deceased, to probate. The district court dismissed the appeal, from which order the plaintiffs appealed to this court. In January, 1884, the attorney of the parties entered into a stipulation as follows, (omitting the title and signatures:) "It is hereby stipulated and agreed, by and between the parties in the above-entitled cause, that said cause be continued until February 20, 1884. It is further stipulated that the appellants therein shall have the privilege of continuing said cause upon said day until the July term of said court if they so desire." The words "until February 20, 1884" were stricken out before it was signed. The stipulation is in the handwriting of the defendant's attorney, and, as he states, was drawn up because he was unable to attend court at that time. On the day preceding that on which the stipulation was filed, the defendant's attorney filed a motion in this court as follows, (omitting the title and signature:) "Now comes said John Wallace, by his attorney, and enters his special appearance herein for this purpose and for no other, and moves the court to dismiss the appeal herein for the reason that said action is not an action in equity, and therefore not appealable.' At the time the stipulation was entered into he made no mention of the motion, nor do the plaintiffs appear to have been aware of it until after the