be paid to him as the installments or portions of the principal or the interest may become due, and the surplus for the benefit of the defendant, his representatives, or assigns, to be paid to them on the order of the court.

TITLE XXVIII.-ARBITRATIONS.

6383 SEC. 862. [Controversies submitted.] All controversies which might be the subject of civil actions, may be submitted to the decision of one or more arbitrators as hereinafter provided.

6384 SEC. 863. [Writen agreement to submit.] The parties themselves, or those persons who might lawfully have controlled a civil action in their behalf for the same subject matter, must sign a written agreement specifying particularly what demands are to be submitted, the names of the arbitrators, and the court by which the judgment on their award is to be rendered.

6385 SEC. 864. [Acknowledgment before justice.] They shall then appear before some justice of the peace of the county and acknowledge the instrument by them signed to be their free act and deed.

6386 SEC. 865. [Demands submitted.] The submission may be of some particular matters or demand, or of all demands which the one party has against the other, or of all mutual demands on both sides.

6387 SEC. 866. [Submission by order of court.] A submission to arbitrators of the subject matter of a suit may also be made by an order of court, upon an agreement of parties, after suit is commenced.

6388 SEC. 867. [Rules applicable.] 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.

6389 SEC. 868. [Revocation of submission.] Neither party shall have the power to revoke the submission without the consent of the other.

6390 SEC. 869. [Default in appearance.] If either party neglect to apbefore the arbitrators, after due notice, they may nevertheless proceed to hear and determine the cause upon the evidence which is produced before them.

pear

6391 SEC. 870. [Award-When made.] If the time within which the award is to be made is fixed in the submission, no award made after that time shall have any legal effect, unless made upon a recommitment of the matter by the court to which it is reported.

6392 SEC. 871. [Same-Filing.] If the time of filing the award is not fixed in the submission, it must be filed within one year from the time such submission is signed and acknowledged, unless by mutual consent the time is prolonged.

6393 SEC. 872. [Same-In writing.] The award must be in writing, and shall be delivered by one of the arbitrators to the court designated in the agreement, or it may be enclosed and sealed by them and transmitted to the court, and not opened until the court so orders.

6394 SEC. 873. [Same-Docketing Notice.] The cause shall be en

SEC. 862. Statutory mode not exclusive, 3 Neb., 389. Arbitrators must pass on all material matters submitted, general finding suflicient. 15 Id., 491. Common law arbitration upheld. 38 Id., 169. SEC. 872. Award must state facts found, and conclusions of law separately. 1 Neb., 459. 17 Id., 598. Award will not be set aside because arbitrators find facts separately from the conclusions of law. 24 Neb., 393. SEC. 873. Giving of notice is matter of discretion. 3 Neb., 228. 18 Id., 573. Defenses. 6 Neb., 87. Arbitrators may be witnesses. Id. 89. A party seeking to avoid award for fraud, etc., must set forth facts on which he bases his belief. 4 Neb., 543. Appeal lies. Id. 6 Id., 273. Award may be attacked by motion to reject and set aside; if overruled and judgment entered on award motion for new trial not necessary. 17 Neb., 596. Where parties enter into written agreement ratifying verbal award, no action can be brought upon original items of account submitted to arbitration, without showing some adequate cause for setting award aside. 21 Neb., 688. Matters not submitted to arbitrators or not considered by them in making award may be sued on as though no such award had been made. Id.

tered on the docket of the court at the term to which the award is returned, and shall be called up and acted upon in its order. But the court may require actual notice to be given to either party, when it appears necessary and proper, before proceeding to act on the award.

6395 SEC. 874. [Same-Rejection by court.] The award may be rejected by the court for any legal and sufficient reasons, or it may be recommitted for a rehearing to the same arbitrators, or any others agreed upon by the parties.

6396 SEC. 875. [Same-Effect-Judgment.] When the award has been confirmed, it shall be filed and entered on the record, and shall have the same force and effect as the verdict of a jury. Judgment may be entered and execution issued accordingly.

6397 SEC. 876. [Appeal.] When an appeal is taken from such judgment, copies of the submission and award, together with all affidavits, shall be returned to the supreme court.

6398 SEC. 877. [Costs.] If there is no provision in the submission respecting costs, arbitrators may award them at their discretion.

6399 SEC. 878. [Fees.] The compensation of the arbitrators shall be two dollars per day, for the time actually and necessarily spent, unless the court fix a less amount; and the fees of the justice of the peace shall be twenty-five cents for making out the agreement of submission (in case he does so), and the like amount for taking and certifying the acknowledgment thereto.

6400 SEC. 879. [Construction of act.] Nothing herein contained shall be construed to affect in any manner the control of the district court over the parties, the arbitrators or their award, nor to impair or affect any action upon an award, or upon any bond or other engagement to abide an award.

TITLE XXIX.-GENERAL PROVISIONS APPLICABLE TO THE WHOLE CODE.

CHAPTER I.-PROCESS.

6401 SEC. 880. [Process.] The style of all process shall be, "The state of Nebraska, county." It shall be under the seal of the court from whence the same shall issue, shall be signed by the clerk, and dated the day it issued. [Const. sec. 24, Art. VI.]

6402 SEC. 881. [When sheriff party.] An order for a provisional remedy or any other process, in an action wherein the sheriff is a party, or is interested, shall be directed to the coroner. If both these officers are interested, the process shall be directed to and executed by a person appointed by the court or judge.

6403 SEC. 882. [Service by authorized person.] The court or judge, for good cause, may appoint a person to serve a particular process or order, who shall have the same power to execute it which the sheriff has. The person may be appointed on the motion of the party obtaining the process or order, and the return must be verified by affidavit. He shall be entitled to the fees allowed to the sheriff for similar services.

CHAPTER II.-DUTIES OF CLERKS.

6404 SEC. 883. [Issuing process-Precipe.] All writs and orders for provisional remedies and process of every kind, shall be issued by the clerks of the several courts. Before they shall be issued, a precipe shall be filed with the clerk, demanding the same; which precipe shall be for the direction of the clerk, and not material to the papers in the case after the issuing of such writ or process.

cess.

SEC. 880. Process defined. Applicable to county and justices' courts. 9 Neb., 94. 14 Id., 143. Object of pro25 Id., 698. SEC. 882. Cited 13 Neb., 280.

6405 SEC. 884. [Filing papers.] It is the duty of the clerk of each of the courts to file together and carefully preserve in his office, all papers delivered to him for that purpose, in every action or special proceeding.

6406 SEC. 885. [Same-Endorsement of date.] He shall endorse upon every paper filed with him, the day of filing it; and upon every order for a provisional remedy, and upon every undertaking given under the same, the day of its return to his office.

6407 SEC. 886. [Docket entry of persons summoned.] He shall, upon the return of every summons served, enter upon the docket the name of the defendant or defendants summoned, and the day of the service upon each one. The entry shall be evidence of the service of the summons, in case of the loss thereof.

6408 SEC. 887. [Records and books.] He shall keep the records and books and papers appertaining to the court, and record its proceedings.

6409 SEC. 888. [Article 8, title 9, applicable.] The provisions of article eight, title nine, of this code, prescribing the duties of clerks of the district court, shall, as far as they are applicable, apply to the clerks of other courts of record.

6410 SEC. 889. [General powers and duties.] The clerk of each of the courts shall exercise the powers and perform the duties conferred and imposed upon him by other provisions of this code, by other statutes, and by the common law. In the performance of his duties he shall be under the direction of his court.

CHAPTER III.-DUTIES OF SHERIFFS.

6411 SEC. 890. [Endorsement of receipt on process.] The sheriff shall endorse upon every summons, order of arrest, or for the delivery of property, or of attachment or injunction, the day and the hour it was received by him.

6412 SEC. 891. [Execution of process-Penalty.] He shall execute every summons, order, or other process, and return the same as required by law; and if he fail to do so, unless he make it appear to the satisfaction of the court that he was prevented by inevitable accident from so doing, he shall be amerced by the court in a sum not exceeding one thousand dollars, and shall be liable to the action of any person aggrieved by such failure.

6413 SEC. 892. [General powers and duties.] The sheriff shall exercise the powers and perform the duties conferred and imposed upon him by other provisions of this code, by other statutes, and by the common law.

CHAPTER IV.-MISCELLANEOUS PROVISIONS.

6414 SEC. 893. [Acts performed by deputy.] Any duty enjoined by this code upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy.

6415 SEC. 894. [Oaths-Affirmations.] Whenever an oath is required by this code, the affirmation of a person conscientiously scrupulous of taking an oath shall have the same effect.

6416 SEC. 895. [Time-Computation-Sunday.] The time within which an act is to be done as herein provided, shall be computed by excluding the first day and including the last; if the last day be Sunday, it shall be excluded.

6417 SEC. 896. [Jury trial-Party in default.] Section four hundred and thirty-two shall not be construed to impair the right of a party to a jury, if he appear at the trial by himself or attorney, and demand the same.

SECS. 887, 889. Cited 2 Neb., 69. Preservation of records. 33 Id., 802.

SEC. 8. Secs. 321-327.

SEC. 889. Mandamus will not lie in first instance. 29 Neb., 122.

SEC. 895.

Applicable to inferior courts. 8 Neb., 362. 15 Id., 661. Cited 21 Neb., 495.

6418 SEC. 897. [Sureties-Proof of qualification.] The ministerial officer whose duty it is to take security in any undertaking provided for by this code, shall have the right to require the person offered as surety to make an affidavit of his qualifications, which affidavit may be made before such officer. taking of such an affidavit shall not exempt the officer from any liability to which he might otherwise be subject for taking insufficient security.

The

6419 SEC. 898. [Same-Qualifications.] The surety in every undertaking provided for by this code, must be a resident of this state, and worth double the sum to be secured, beyond the amount of his debts, and have property liable to execution in this state, equal to the sum to be secured. Where there are two or more sureties in the same undertaking, they must in the aggregate have the qualifications prescribed in this section.

6420 SEC. 899. [Court rules-Revision by supreme court.] The judges of the supreme court shall, during the month of the first January after this code shall take effect, and every two years thereafter, meet at the capitol of the state, and revise their general rules, and make such amendments thereto as may be necessary to carry into effect the provisions of this code; and they shall make such further rules consistent therewith, as they may deem proper. The rules so made shall apply to the supreme court and the district courts.

CHAPTER V.-PROVISIONS RESPECTING EXISTING ACTIONS.

6421 SEC. 900. [Application of code to pending suits.] The provisions of this code do not apply to proceedings in actions or suits pending when it takes effect. They shall be conducted to final judgment or decree, in all respects as if it had not been adopted; but the provisions of this code shall apply after a judgment, order, or decree heretofore or hereafter rendered, to the proceedings to enforce, vacate, modify, or reverse it.

CHAPTER VI.-PROVISIONS AS TO THE OPERATION OF THE CODE.

6422 SEC. 901. [Rights secured by existing laws.] Rights of civil action given or secured by existing laws shall be prosecuted in the manner provided by this code, except as provided in the following section. If a case ever arise in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under this code, the practice heretofore in use may be adopted so far as may be necessary to prevent a failure of justice.

6423 SEC. 902. [Proceedings not affected by code.] Until the legislature shall otherwise provide, this code shall not affect proceedings on habeas corpus, quo warranto, or to assess damages for private property taken for public uses; nor proceedings under the statutes for the settlement of estates of deceased persons; nor proceedings under statutes relating to dower, divorce, or alimony, or to establish or set aside a will; nor proceedings under statutes relating to apprentices, arbitration, bastardy, or insolvent debtors; nor any special statutory remedy not heretofore obtained by action; but such proceedings may be prosecuted under the code whenever it is applicable.

6424 SEC. 903. [Proceedings under statutory actions.] Where, by general or special statute, a civil action, legal or equitable, is given, and the mode of

SEC. 897. Clerk of court is a "ministerial officer" and liable for taking "insufficient security." 5 Neb., 235. And receiving money on judgment. 13 Neb., 569. Section has no reference to duties of sheriff in the case of taking and approving recognizances during vacation of persons who have been indicted during sessions of court. 22 Neb., 691.

SEC. 901. Cited 19 Neb., 449. 37 Id., 535.

SEC. 902. Applies to proceedings relating to application for writ and hearing, not to manner of their review. 42 Neb., 772.

proceeding therein is prescribed, this code shall not affect the proceedings under such statute, until the legislature shall otherwise provide; but in all such cases, as far as it may be consistent with the statute giving such action, and practicable under this code, the proceedings shall be conducted in conformity thereto. Where the statute designates by name or otherwise the kind of action, but does not prescribe the mode of proceeding therein, such action shall be commenced and prosecuted in conformity to this code; where the statute gives an action, but does not designate the kind of action, or prescribe the mode of proceeding therein, such action shall be held to be the civil action of this code, and proceeded in accordingly.

TITLE XXX.-JUSTICES OF THE PEACE.

CHAPTER I.-JURISDICTION.

6425 SEC. 904. [Limited to county.] The jurisdiction of justices of the peace in civil cases shall, unless otherwise directed by law, be limited to the county wherein they may have been elected, and where they shall reside.

6426 SEC. 905. [Subject matter.] Justices of the peace, within and co-extensive with their respective counties, shall have jurisdiction and authority: FirstTo administer an oath or affirmation authorized or required by law to be administered. Second-To take the acknowledgment of deeds, mortgages, and other instruments of writing. Third-To solemnize marriages. Fourth-To issue subpœna for witnesses and coerce their attendance in causes or matters pending before them, or other cause or matter wherein they may be required to take depositions. Fifth-To try the action for forcible entry and detention, or the detention only, of real property. Sixth-To proceed against security for costs and bail for the stay of execution on their dockets. Seventh-To issue attachments, and proceed against the goods and effects of debtors in certain cases. Eighth-To issue executions on judgments rendered by them. Ninth-To proceed against constables failing to make return, making false return, or failing to pay over money collected on execution, issued by such justice. Tenth-To try the right of the claimant to property taken in execution, or on attachment.

6427 SEC. 906. [Same-Trespass.] Justices of the peace shall have jurisdiction in actions for trespass on real estate, where the damages demanded for such trespass shall not exceed two hundred dollars, and no claim of title to such real estate set up by the defendant shall take away or affect the jurisdiction hereby given. [Amended Feb. 28. Took effect June 1, 1881.]

6428 SEC. 907. [No jurisdiction.] Justices shall not have cognizance of any action: First-To recover damages for an assault, or assault and battery. Second-In any action for malicious prosecution. Third-In actions against justices of the peace or other officers for misconduct in office, except in the cases provided

CHAP. I. Where jurisdiction appears, all matters relating to form of procedure will be construed with great liberality. 21 Neb., 370. Objections to jurisdiction should point out the defect relied upon. 16 Neb., 54. Juris diction in action against sheriff and attachment creditor to recover value of property levied on. 9 Neb., 273. Conversion of chattels of value of $200; justice not ousted of jurisdiction by pleading and proof that defendant took chattels under execution, he being sheriff. 12 Neb., 37. No jurisdiction in action against officer for misconduct in office. 12 Neb., 37. 19 Id., 529. Have jurisdiction on notes not exceeding $200. 15 Neb., 665, 669. 16 Id., 234. 18 Id., 365. Where amount claimed does not exceed $200, and action is brought against sheriff for value of the property sold under execution, and there is no charge of misconduct, justice has jurisdiction. 19 Neb., 44. Judgment of justice having jurisdiction, rendered after expiration of time, must be corrected by direct proceed ings. 19 Neb., 393. Jurisdiction in action for money had and received, brought to recover back a deposit or money paid upon an agreement for the purchase and sale of land, where defendant omits or refuses to perform his agreement to convey the same. 20 Neb., 50. In replevin where jury find value of possession, and property has been returned to plaintiff, judgment being for costs without damages, justice has jurisdiction. 13 Neb, 517. See 25 Id., 106. Has jurisdiction of civil action to recover penalty on penal statute. 12 Neb., 541. Jurisdiction in bastardy cases. 24 Neb., 36. While justice cannot determine questions of title, yet he may receive deeds, in connection with other evidence, in order to show the right of either party to possession of premises. 23 Neb., 403. Must hold office in precinct where elected. 4 Neb., 413. But judgment in precinct other than where justice resides, of same county, not void. 15 Neb., 85.

SEC. 907. No jurisdiction to inquire into validity of condemnation proceedings. 28 Neb., 397. Wrongfully suing out attachment; malicious prosecution. 34 Id., 100.