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McDaniel v. Lapham, 21 Vt. 223; McDaniel v. Bank of Rutland, 3
Williams (Vt.), 230.

The verdict on the first count is so contrary to the evidence, as to lead us to the conclusion that the jury were influenced by passion, or prejudice, or some other motive, rather than conclusions reached by a candid review of the testimony before them. The verdict was several hundred dollars in excess of the amount due the plaintiff on this count, without allowing the defendants anything received by the plaintiff on either the Gedney or the Hamill and Meigs bill, and the plaintiff himself swears that he objected to only a few items on these bills. There were other cash payments entirely undisputed, which must have been entirely overlooked by the jury. The verdict is not suported by the evidence.

The testimony in reference to the second count was conflicting, and for this reason, also, this court will not disturb the judgment of the lower court in granting a new trial. Judgment and order granting a new trial affirmed.

HUNTER, C. J. and Twiss, J., concurred.

KLOPENSTINE v. WOOLF.

Filed July 5, 1884.

DUE-BILLS-JUSTICES' COURT-JURISDICTION.-Due-bills, which specify no place of payment, are payable at the domicile of the debtor, and an action thereon in the justices' court must be brought in the precinct in which the maker resides.

APPEAL from a judgment of the third district court, entered in favor of the defendant. The opinion states the facts.

Woods and Hoffman, for the appellant.

Dickson & Varian, for the respondent.

EMERSON, J. This action was originally commenced in the justice court for Bingham precinct in Salt Lake county, to recover on certain due-bills dated at and for work performed in that precinct, but no place of payment named.

The record shows that the defendant is a resident of Salt Lake City, and that there is and was at the time this suit was commenced, a justices' court and a justice competent to act in the precinct where the defendant resides.

The defendant made a special appearance in the justice court, and moved to dismiss the case for the reason, among others, that the justice had no jurisdiction, the defendant's residence being out of the justice's precinct. The justice denied the motion, and gave judgment against the defendant, on default of an appearance and

answer.

The defendant appealed to the district court, where, upon his motion, the case was dismissed for want of jurisdiction in the justice. The plaintiff appeals to this court from the order of dismissal.

1

The Practice Act C. L. 1734 provides that no person shall be held to answer a summons issued against him, from a justice court, in a civil action, in any precinct other than the one in which he shall reside, unless the case falls within some one of the subdivisions of that section forming exceptions thereto. It is contended by the appellant that this case falls within the sixth subdivision, which is as follows:

"When a person has contracted to perform any obligation at a particular place, and resides in another precinct, he may be sued in the precinct in which such obligation is to be performed, or in which he resides."

The due bills sued upon, do not bring the case within this exception. They are not contracts to perform any obligation, in the precinct where the suit was brought, or in any particular place. Like promissory notes, not made payable at any particular place, they are payable at the domicil of the debtor.

The defendant being at the time a resident of another precinct, in which there was a justice court and a justice competent to act, and the due bills not being contracts to perform any obligation in the precinct where the suit was brought, the action was one over which the justice had not, and could not acquire jurisdiction.

The judgment of the court below in dismissing the case is affirmed.

HUNTER, C. J. and Twiss, J., concurred.

SANDERS v. WOOLF.

Filed July 5, 1884.

JUDGMENT AFFIRMED on the authority of Klopenstine v. Woolf, ante.

APPEAL from a judgment of the third district court, entered in favor of the defendant. The facts were similar to those in Klopenstine v. Woolf, ante.

Woods and Hoffman, for the appellant.

Dickson & Varian, for the respondent.

EMERSON, J. The facts in this case are identical with those in the case of Klopenstine v. Woolf just decided. For the reason then given the judgment of the lower court is affirmed.

HUNTER, C. J. and Twiss J., concurred.

FENTON V. SALT LAKE COUNTY ET AL.

Filed July 5, 1884

ACTION AGAINST COUNTY-PRESENTATION OF CLAIM -PLEADING.-In an action against a county the complaint must allege the presentation of the plaintiff's claim, demand or right of action to the county court for allowance, and the rejection thereof.

APPEAL from a judgment of the third district court, entered in lavor of the plaintiff. The opinion states the facts.

Zerubabel Snow, for the appellant.

J. D. Lomass, for the respondent.

EMERSON, J. This action was brought against the county of Salt Lake and others, to recover damages for injuries to plaintiff's land, caused by constructing canals near said land, and diverting the waters of a natural stream therefrom, and to which was added a prayer for equitable relief.

The case was dismissed as to the defendants other than Salt Lake county.

The county demurred to the complaint, which was overruled, and the issues raised by its answer were tried by a referee, upon whose report of findings of fact and conclusions of law a judgment was entered in favor of this plaintiff and against the defendant county for two thousand dollars damages and costs of suit, together with a decree that the defendant county restore to the plaintiff a certain portion of the natural stream flowing through his said land. From this judgment the county appeals to this court.

Various exceptions were taken to the findings and report of the referee, none of which will be noticed here, as the case will be disposed of upon the points raised by the demurrer.

The demurrer raises the point that the complaint does not state facts sufficient to constitute a cause of action against the defendant county, inasmuch as there is no averment that the claim was presented to, and disallowed by the county court, in accordance with the provisions of section 6 of an act of the territorial legislature, approved February 18th, 1878.

The section referred to provides that "no action shall be commenced or maintained against any county, until the person or party having a claim, demand, or right of action, shall present the same to the county court thereof, with proof of the correctness of such claim or right, and until the same has been disallowed by said court." The next section provides that if a claim or demand is not audited in four months after presentation, it shall be deemed to be disallowed. Sess. Laws of 1878, p. 9.

This provision is founded in wisdom, and is in furtherance of a judicious public policy, to prevent needless litigation and save unnecessary expenses and costs, by affording an opportunity amicably to adjust all claims, of every nature, against a county before suit is brought.

The right to commence or maintain any action against a county is, by the statute, made to depend upon the fact that the claim, demand or right of action has first been presented to the county court, and has been disallowed either expressly or by non-actionThis fact must be stated in the complaint. It is a substantial alle. gation upon which the plaintiff's right of recovery depends, and without it a complaint fails to state a cause of action against a county.

The judgment of the court below is reversed, and the cause remanded with instructions to that court to sustain the demurrer. HUNTER, C. J., and Twiss, J., concurred.

WEST COAST REPORTER.

WHOLE NO. 30.

JULY 24, 1884.

VOL. III. No. 8.

INTER-STATE EXTRADITION.*

CONSTITUTIONAL AND STATUTORY PROVISIONS.-The constitution of the United States, Art. IV, sec. 2, provides that "A person charged in any state with treason, felony or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime" This section as first reported by the committee of detail to the federal convention was as follows: "Any person charged with treason, felony or high misdemeanor in any state, who shall flee from justice, and shall be found in any other state, shall, on demand of the executive power of the state from which he fled, be delivered up and be removed to the state having jurisdiction of the offense:" 5 Elliott's Deb. 381; 2 Madison's Pap. 1240. When the article was afterwards taken up by the convention, the words "high misdemeanor" were struck out of the section, and the words "other crime" inserted in their stead, "in order to comprehend all proper cases, it being doubtful whether high misdemeanor' had not a technical meaning too limited:" 5 Ell. Deb. 487; 3 Mad. Pap. 1447. Further changes were made in committee, and when finally adopted, the section read as above given. It may here be observed that the articles of confederation contained a clause-Art. IV, sec. 2-similar to the one reported to the convention, and which, it is more than probable, is the source of the present constitutional provision. The objects and reason of the section are thus clearly stated by Beasley, Ch. J., in Matter of Voorhees, 32 N. J. Law, 141, 145: "The purpose, then, of this provision of the constitution was, as I conceive, two-fold: first, to impose an absolute obligation on each state to surrender criminals fleeing from the justice of another state; and second, to define clearly the class of criminals so to be surrendered. The rule of international comity was defective in both particulars, and the design, consequently, was to create a substitute which should be without either defect."

*Read before the Young Men's Bar Association, by Charles W. Slack, of the San Francisco Bar.

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