Colored Men. 1. A COLORED MAN has the right to sit on a jury under the constitution of the State of Nebraska. Brittle v. The People. Constitution. ..... 1. THE HISTORY of the formation and adoption of the constitution of the State of Nebraska stated. 2. JURISDICTION TO DETERMINE ITS ADOPTION. The question, whether a State constitution was regularly and legally adopted after the same has been acted upon, and the State government is, in fact, being administered under it, is a political rather than a judicial question. A court organized under a constitution would be felo de se if it should declare such constitution null for irregularity and illegality in its adoption. 3. AMENDMENTS BY CONGRESS. When a constitution has been adopted by the people of a Territory preparatory to admission as a State, and Congress prescribes certain changes and additions to be adopted by the legislature as part of the constitution, and such changes and additions are declared to be fundamental conditions of the admission of the State, and the legislature accept such changes, additions, and conditions, and the State is thus admitted, they become thereby a part of the constitution, and binding as such, although not submitted to the people for their approval. Brittle v. The People........ Constitutional Law. 1. CONSTRUCTION. The constitution of this State confers plenary legislative power upon the General Assembly; and, if an act is within the legitimate exercise of that power, it is valid unless some express restriction or limitation can be found in the constitution itself. 2. -. The provisions of the constitution, that "the State shall never contract any debt for works of internal improvement, or be a party in carrying on such works," and that the debts of the State "shall never in the aggregate exceed fifty thousand dollars," refer to the State alone, and not to the municipal corporations. 3. MUNICIPAL AID TO RAILROADS. The act of the legislature of Feb. 15, 1869, authorizing any county or city of this State to issue bonds to aid the construction of railroads, does not conflict with the provision of the Bill of Rights, that "the property of no person shall be taken for public use without just compensation therefor." Argument 1. The provision relates to the taking of private property by the exercise of the power of eminent domain, and not by the exercise of the taxing power; between which powers there is a wide difference. 198 198 2. A railroad company is a public body; or, if a private corporation, it is an agent of the public to perform a public function. 3. When the constitution of this State was adopted, many other States had constitutions containing similar provisions, which the courts thereof had held not to inhibit such legislation. Hallenbeck v. Hahn....... 377 Construction of Statutes. 1. In the construction of statutes, effect must, if possible, be given to every clause; and one clause must not be placed in antagonism to another. 2. Specific provisions relating to a specific subject-matter control general provisions. McCann v. McLennan..... Conversion. ..... 1. DEMAND. Possession of chattels with claim of title adverse to the owner is evidence of conversion; and no demand need be shown to support replevin. Pyle v. Warren.......... Costs. 1. A plaintiff cannot have costs of his action, if he bring it in the District Court, when it is within the jurisdiction of a justice of the peace, even though the District Court have concurrent jurisdiction. Geere v. Sweet..... 286 241 76 Counterclaim. 1. WASTE BY MORTGAGEE IN POSSESSION. In an action by a mortgagee, after sale on foreclosure, to recover deficiency of the proceeds of the sale to pay the mortgage debt, the mortgagor may allege, by way of counterclaim, damages sustained by him on account of waste committed by the mortgagee in possession between the decree and sale. Smith v. Fife.... County Clerks. 1. POWER TO TAKE ACKNOWLEDGMENTS. County clerks are authorized to take the acknowledgment of deeds conveying real estate. Franklin v. Kelley..... County Commissioners. 1. POWERS. County commissioners have power to buy a poor-farm for the county, but not to give promissory notes or a mortgage in payment for the same. 10 79 Argument 1. The statute (R. S., chap. xl. sects. 17-23) authorizes the establishment of a county poorhouse, and the taking of a grant of land therefor, whether the same be donated or purchased, and appropriating not to exceed twenty-five hundred dollars to the purchase. The expression of these powers excludes the authority to give notes and mortgages for deferred payments. 2. A mortgage is but a conditional sale, and may result in divesting the owner of all interest; and yet the statute has authorized the commissioners to sue the property of the county, only upon a vote of a majority of the electors of the county. Stewart v. Otoe County..... 177 1. PLEADING. Criminal Law. An indictment for murder should contain a certain description of the crime which the defendant is accused of committing, and the facts constituting it. 2. DYING DECLARATIONS. It is essential to the admissibility of dying declarations, and is a preliminary fact to be proved by the party offering them, that they were made under a sense of impending death; but it is not necessary that it should be stated at the time that they were so made. 3. The state of the deceased's mind may be judged from the circumstances; but the length of time which elapses between the declaration and death furnishes no rule for the admission or rejection of the testimony. 4. EXCEPTIONS TO EVIDENCE. The rule, that in a capital case the accused does not waive a right by not insisting upon it, entitles him to have proof which is prejudicial to his case, and is not legally admissible, withdrawn from the jury, although he does not object to it when offered. Mason, Ch. J. Rakes v. The People........ 157 Delivery of Personal Property. 1. ON SALE. If personal property be contracted to be sold, the vendee agreeing to do some act upon delivery, possession obtained by him without performance does not vest the title in him. 2. WAIVER When goods are sold on condition of being paid for on delivery in cash or commercial paper, an absolute and unconditional delivery by the vendor, without exacting performance, is a waiver of the condition; and complete title passes to the vendee if there be no fraudulent contrivance to obtain possession. 3.-. Although usual, it is not necessary that the vendor should declare that he does not waive the condition, when the delivery is made without its performance. Sutro v. Hoile... 186 Ejectment. 1. FRAUD may be shown in an action of ejectment to avoid a deed. 2. 3. Weakness of understanding alone is not sufficient to avoid a deed; but it is a material circumstance in establishing an inference of unfair practices and imposition. ONLY THE PARTY defrauded can complain. 4. PLEADING. The fraud need not be specially pleaded in order to admit proof of it. Franklin v. Kelley.......... 5. 6. An action for the recovery of real property under the Code can only be supported by showing a legal title in the plaintiff as contra-distinguished from an equitable title. The holder of a receiver's certificate cannot, after the entry upon which the paper was issued has been cancelled, maintain an action of ejectment; for he has only an equitable title; and this notwithstanding sect. 411 of the Code of Civil Procedure, making such certificate proof of title equivalent to a patent against all but the holder of an actual patent. 7. JURISDICTION. The courts of law are without jurisdiction to interfere in controversies between adverse claimants of the public land until the government has, by the issuing of the patent or otherwise, parted with the legal title. Morton v. Green... Evidence. 1. IMPEACHING WITNESSES. It is competent to show that a witness has made statements out of court upon a material point of the case, contradicting his testimony, when, on his examination, he has denied, after having his attention directed to the fact, having made such contradictory statements. Strader v. White.... Exemption. ....... 1. ALIENS. A resident alien, whose family is not in this State, is as much entitled to the benefit of the law giving exemption from sale of his property taken upon execution against him as is a citi- Federal and State Courts. 1. THEIR RELATIVE AUTHORITY. The United-States Supreme Court and the Supreme Court of this State are peers. The decisions of the former upon the Federal constitution and laws are binding on the latter the decisions of the latter upon the constitution and laws of Nebraska are binding on the former. The decisions of neither upon questions of general jurisprudence are binding upon the other. Franklin v. Kelley.. Federal Circuit and State Supreme Courts. 1. THEIR RELATIVE AUTHORITY. The construction placed by the United-States Circuit Court upon a Federal statute is not binding upon the State Supreme Court. Its decision will be respectfully considered, but will not preclude an examination of its soundness. Franklin v. Kelley..... 79 79 Homestead Law. 1. SPECIFIC PERFORMANCE. The policy of the Act of Congress granting homesteads on the public lands, as disclosed by its requirement of affidavit and other provisions, is adverse to the right of a party availing himself of it to convey, or agree to convey, the land, before he receives the patent therefor. Dawson v. Merrille... 119 Injunction. 1. THE COLLECTION OF TAXES. Equity will not enjoin the collection of taxes on account of irregularities in the proceedings of the taxing officers, unless they are void, or levied upon property which is exempt; nor if a part of the tax be just, and a part be not just, will it interfere, unless tender of the part due be made. 2. REALTY. A sale of realty for taxes will not be restrained because the owner has personalty out of which it might have been collected. Hallenbeck v. Hahn... Judgments. .... 377 1. THEIR ENTRY AND EFFECT. When a judgment is once entered of record, it must stand as the judgment of the Court until vacated, modified, or disposed of by the process prescribed by law. Entering another judgment is not one of them. Nuckolls v. Irwin..... 60 Mandamus. 1. MECHANIC'S LIEN AGAINST STATE BUILDINGS. Where commissioners of public buildings contract with A for the erection of a building for the State, - e.g., a State lunatic asylum, - a subcontractor who has done work or furnished material is not entitled to mandamus upon the commissioners to compel them to draw their warrant upon the fund appropriated for the erection of the building. |