tain a suit thereon after breach-all differences to be settled by arbitration,-is without binding force, as tending to oust the courts of their jurisdiction. Hartford Fire Ins. Co. v. Hon, 66 Neb. 555 (92 N. W. 746; 60 L. R. A. 436).

II. ARBITRATORS AND PROCEED

INGS.

Competency of arbitrators as witnesses, see Witnesses, § 57.

Waiver of irregularities.

12. (1897.) It is competent for parties to an arbitration had under the provisions of title 28 of the code of civil procedure, to waive any irregularity in the proceeding which does not go to the jurisdiction of the arbitrators to act, or the jurisdiction of the district court to confirm the award made. Burkland v. Johnson, 50 Neb 858 (70 N. W. 388).

Concurrnce of arbitrators in award.

submit

13. (1896.) An agreement to ruatters to two arbitrators having power to choose an umpire to act only when they differ, does not authorize one arbitrator and the umpire without a showing of difference between the arbitrators, to return a conclusive award. Manufacturers & Builders Fire Ins. Co. v. Mullen, 48 Neb. 620 (67 N. W. 445).

14. (1899.) Under a submission to three arbitrators, the award of two to be binding. a further provision that the award should be in writing, signed by three of the arbitrators, held not to invalidate an award by two of them. City of O'Neill v. Clark, 57 Neb. 760 (78 N. W. 256).

III. AWARD.

Requisites of award.

15. (1883.) In order to make a valid award, the arbitrators must pass upon all material matters submitted to them. Sides v. Brendlinger, 14 Neb. 491 (17 N. W. 113). Sufficiency of finding.

16. (1892.) An award will be held void for uncertainty when no amount is named therein or means indicated by which it can be ascertained. St. Paul Fire & Marine Ins. Co. v. Gotthelf. 35 Neb. 351 (53 N. W. 137). Statement of findings.

17. An award of arbitrators must state the facts found by them, and their conclusions of law separately. (1871) Murry v. Mills, 1 Neb. 456; (1885) Graves v. Scoville, 17 Neb. 593 (24 N. W. 222).

18. (1883.) It is not essential to the validity of an award of arbitrators upon an account, when not required by the terms of this submission, nor requested on the trial, that there be a special finding as to each separate item composing it, but a eneral finding is sufficient. Sides v. Brendlinger, 14 Neb. 491 (17 N. W. 113).

19. (1888.) Where all matters in difference between two parties are submitted to the decision of arbitrators, and such arbitrators, after hearing the evidence, etc., make and file an award in the district court, in which the facts are found separately from the conclusions of law, the judgment of the district court confirming such award will not be reversed, upon the ground that the arbitrators have not stated the facts found and conclusions of law separately. Westover v. Armstrong, 24 Neb. 391 (38 N. W. 843).

20. (1897.) An award made by arbitrators chosen and acting in pursuance of title 28 of the code of civil procedure, without a statement of any conclusions of fact or conclusions of law found by them, such requirements not having been waived, is erroneous and a judgment confirming such award may be reversed in a direct proceeding instituted for that purpose. Burkland v. Johnson, 50 Neb. 858 (70 N. W. 388).

21. (1897.) It is the duty of arbitrators chosen and acting in pursuance of the provisions of title 28 of the code of civil procedure, to make and state separately the conclusions of fact and conclusions of law reached by them, unless the parties to such arbitration have by their agreement of submission waived such requirement. Burkland v. Johnson, 50 Neb. 858 (70 N. W. 388). 22. (1897.) The failure of arbitrators chosen and acting under the provisions of title 28 of the code of civil procedure to make and state the conclusions of fact and law found by them is an irregularity merely, and one that does not render their award void nor oust the district court of jurisdiction to confirm it. Burkland V. Johnson, 50 Neb. 858 (70 N. W. 388).

23. (1899.) A single cause of action having been submitted to arbitration, an award whereby the arbitrators "find for the plaintiff, assesses her damages" at a sum named, and "award" her that sum is a sufficient separate finding of facts and of law. City of O'Neill v. Clark, 57 Neb. 760 (78 N. W. 256).

25. (1876.) Where it is clearly shown that an award of arbitrators has been obtained by fraud, corruption, or other undue means, it should be set aside; but the fact that a party seeking to avoid the award swears that he believes it has been so obtained, is no evidence whatever. The facts and circumstances on which the affiant bases his belief should be set out in detail, and all the evidence on which he relies presented to the court to which the award has been returned. McDowell v. Thomas, 4 Neb. 542.

26. (1893.) The fact that neither the witnesses nor the arbitrators were sworn, when no objection is made on that ground, will not invalidate the award. Greer v. Canfield, 38 Neb. 169 (56 N. W. 883).

27. (1894.) The finding of the trial court adversely to an arbitrament having been entered into between partners for the settlement of differences between them will not be disturbed when there were such proofs as would justify the conclusion reached as one which might reasonably be attained upon due consideration thereof. Glade v. White, 39 Neb. 728 (58 N. W. 286).

28. (1897.) If an award made in pursuance of title 28 of the code of civil procedure may be set aside or modified on motion because of a mistake in computation or allowance of interest by the arbitrators it can only be done when it appears that such a mistake was that of all the arbitrators whose concurrence was necessary to the making of the award. Burkland v. Johnson, 50 Neb. 858 (70 N. W. 388). Confirmation.

29. (1893.) A verbal submission of the matters in controversy between parties, who appear voluntarily, and testify themselves, and produce witnesses in support of their respective claims, will, if fairly conducted, be sustained after the making of the award. Greer v. Canfield, 38 Neb. 169 (56 N. W. 883).

30. (1897.) The failure to acknowledge

before a justice of the peace the agreement of submission is not an irregularity that the parties to the arbitration may waive; and their ratification of an award made under such defective submission will not invest the district court with jurisdiction to confirm such award. Burkland v. Johnson, 50 Neb. 858 (70 N. W. 388). Presumption as to award.

31. (1883.) Every reasonable intendment is to be made in favor of an award. Sides v. Brendlinger, 14 Neb. 491 (17 N. W. 113).

32. (1883.) The legal presumption, unless the contrary appear, is that arbitrators decide all matters submitted to them, and only those. Sides v. Brendlinger, 14 Neb. 491 (17 N. W. 113).

33. (1887.) Courts will construe awards favorably and make all reasonable presumptions in favor of their validity. Bentley v. Davis, 21 Neb. 685 (33 N. W. 473).

Conclusiveness of award.

34. (1874.) An award by arbitrators acting within the scope of their authority becomes the act of the parties, and decides their rights as effectually as a judg ment. Tynan v. Tate, 3 Neb. 388.

35. (1887.) Where certain matters in difference were submitted to arbitrators, who made verbal award, which was ratified by the parties entering into a written agreement signed by them and witnessed by said arbitrators, the parties thereby accepted of said award and no action could be brought upon original items of account submitted to said arbitrators without showing some adequate cause for setting the award aside. Bentley v. Davis, 21 Neb. 685 (33 N. W. 473).

36. (1887.) Matters not submitted to arbitrators or not considered by them in mak ing award may be sued on as though no such award had been made. Bentley v. Davis, 21 Neb. 685 (33 N. W. 473).

37. (1894.) A judgment rendered by a justice of the peace on an award made by arbitrators under the provisions of article 3, chapter 2, Comp. Stats., 1893, is no more conclusive or final than an ordinary judg ment at law rendered by such justice, and may be appealed from by either of the parties to such award. Holub v. Mitchell, 42 Neb. 389 (60 N. W. 596).

38. (1895.) The right to recover damages from trespassing animals is not barred

by the fact that arbitrators have made an award and the assessment, as provided for by the herd law, has been paid. Richardson v. Halstead, 44 Neb. 606 (62 N. W. 1077). 39. (1896.) An award, whether at common law or under the statute, when regularly made and published is, in the absence of fraud or mistake, prima facie binding upon the parties thereto, and the burden of alleging and proving the contrary is upon the party seeking to impeach it. Connecti

cut Fire Ins. Co. v. O'Fallon, 49 Neb. 740 (69 N. W. 118).

Estoppel.

40. (1897.) Held, In the case at bar, that the plaintiff in error had estoped himself from assailing the award made, either because of the failure of the arbitrators to state the conclusions of fact and conclusions of law found by them, or because of a mistake in computation and allowance of interest alleged to have been made by the arbitrators. Burkland v. Johnson, 50 Neb. 858 (70 N. W. 388).

Actions on awards.

41. (1877.) Arbitrators are proper witnesses to testify concerning what matters were presented before them, and whether or not they had considered all the matters referred. Hall v. Vanier, 6 Neb. 85; 7 Neb. 397.

41a. (1874.) An award upon a submission valid at common law will support an action. Tynan v. Tate, 3 Neb. 388.

42. (1877.) In an action on an award, the defendant may set up as a defense that the aribtrators considered matters not submitted to them, or omitted to consider matters which were submitted, and may prove such matters in bar. Hall v. Vanier, 6 Neb. 85; 7 Neb. 397.

43. (1893.) Where there is no competent evidence of an agreement of the parties to an action to submit their matters of difference to arbitrators, it is error to submit the question of an award to the jury. German-American Ins. Co. v. Buckstaff, 38 Neb. 135 (56 N. W. 692).

Pleading award as a defense.

44. (1893.) Where matters in controversy are submitted to arbitrators, proof taken, and an award made, and an action brought thereon, an answer which fails to show that the arbitrators exceeded their powers, or did not consider some of the matters submitted, or did an injustice to

the defendant, fails to state a defense. Greer v. Canfield, 38 Neb. 169 (56 N. W. 883).

Evidence.

45. (1874.) In an action to recover the amount of an award by arbitrators chosen by the parties, testimony regarding the submission of the matter to arbitrators is admissible. Tynan v. Tate, 3 Neb. 388.

46. (1889.) Where there is a dispute between a contractor and the owner of the building regarding certain parts of the work done and an agreement to submit the same to arbitration, held the award did not include matters pertaining to parts of the work, and for materials not included in the agreement. Doane College v. Lanham, 26 Neb. 421 (42 N. W. 405).

47. (1892.) Held, a finding in the record was an invoice of goods and not an award of arbitrators. St. Paul Fire & Marine Ins. Co. v. Gotthelf, 35 Neb. 351 (53 N. W. 137).

48. (1893.) A claim that an award was made on Sunday is not sustained by showing the arbitrators some explanations on that day. Greer v. Canfield, 38 Neb. 169 (56 N. W. 883).

49. (1896.) Evidence tending to impeach an award actually made and published, in accordance with the agreement of submission, is inadmissible under a general denial. Connecticut Fire Ins. Co. v. O'Fallon, 49 Neb. 740 (69 N. W. 118).

Notice to parties before judgment.

50. (1874.) In rendering a judgment upon an award of arbitrators, it is not absoiutely necessary for the court to give notice to either party before proceeding to act upon the award. Kelly v. Morse, 3 Neb. 224. 51. (1901.) Where a confirmation and entry of judgment upon an award are in accordance with the express terms of the agreement under which it was made and the court's order submitting the matter to the arbitrators, no notice to the defendant of such confirmation and entry of judgment was necessary. Shutt v. Hebebrand, 1 Unof. 571 (95 N. W. 785).

wise no foundation has been laid on which to predicate an appeal. McDowell v. Thomas, 4 Neb. 542.

53. (1885.) Where a cause is submitted to an arbitrator, without suit, under the provisions of title 28 of the civil code, and the arbitrator presents and files his award in the district court, such award may be attacked by a motion to reject and set it aside for any legal and sufficient reasons. Graves v. Scoville, 17 Neb. 593 (24 N. W. 222).

54. (1894.) The provisions of sections 991-995 of the code of civil procedure are not applicable to awards made under article 3, chapter 2, Compiled Statutes, 1893. Holub v. Mitchell, 42 Neb. 389 (60 N. W. 596).

CROSS-REFERENCES.

See, also, Escape.

See, also, Bail; Recognizance; False Imprisonment.

Release from, see Habeas Corpus. Release from arrest made under void law, see Habeas Corpus, §§ 11, 12. Rearrest after discharge on habeas corpus, see Habeas Corpus, §§ 56, 57.

Homicide in making arrest, see Homicide, $$ 34, 35.

Homicide while resisting arrest, see Homicide, § 36.

Arrest of garnishee for refusal to answer in garnishment, see Garnishment, § 97. Arrest for failure to support illegitimate child, see Bastards, §§ 122, 123.

Order overruling motion for order of arrest as final order, see Appeal and Error, $ 76.

In civil actions.

1. (1903.) It is not error to refuse, in an action for maliciously procuring plaintiff's arrest in proceedings in aid of execu tion, an instruction that makes an intention on the part of plaintiff to leave the state a sufficient ground for arresting him. The statute only permits arrest where there is danger defendant will not obey a citation to appear. Bank of Miller v. Richmon, 68 Neb. 731 (94 N. W. 998).

By public officer.

2. (1881.) Before an officer can lawfully resort to extreme measures-such as shoot

ing to prevent an escape from an unathorized arrest for felony, he is required to exercise a high degree of care and diligence in ascertaining whether he has the right man. Kopplekom v. Huffman, 12 Neb. 95 (10 N. W. 577); Huffman v. Koppelkom, 8 Neb. 344.

3. (1891.) The rule of criminal law is settled that an officer without warrant acts as an individual without police authority unless he witnesses the criminal act; and he must have notice that the crime has been committed, and that the prisoner arrested is the guilty party. Nelson v. State, 33 Neb. 528 (50 N. W. 679).

4. (1895.) A sheriff or other police offcer, in arresting or preventing the escape of a felon, may use such force as is reasonably necessary, even to the taking of life: but if the felon can be taken, or his escape prevented, without killing the offender, and he be slain, the officer is guilty of at least manslaughter. Lamma v. State, 46 Neb. 236 (64 N. W. 956).

5. (1896.) The proper officer may arrest and detain any person found violating any law or legal ordinance, until a warrant can be obtained. Fry v. Kaessner, 48 Neb. 133 (66 N. W. 1126).

By private citizen.

6. (1884.) Where a felony has been committed, and there is good cause to believe that a certain party committed the same, a private person may arrest such party until а warrant can be procured.

Simmerman v State, 16 Neb. 615 (21 N. W. 387).

7. (1902.) Under the provisions of section 284 of the criminal code, a private person may make an arrest without a warrant only in case the offense, for which the person suspected is arrested, has in fact been committed. Kyner v. Laubner, 3 Unof. 370 (91 N. W. 491).

Resisting unlawful arrest.

8. (1883.) A person may resist an unlawful attempt at arrest, and if necessary, rather than submit, he may lawfully kill the person making it. Simmerman v. State, 14 Neb. 568 (17 N. W. 115).

ARREST OF JUDGMENT. See Judgments, VI.

In criminal prosecution, see Criminal Law, §§ 920, 921.

Information.

1. (1892.) In an information for arson in setting fire to a building the ownership thereof may be alleged to be in the party in possession because the offense is against the habitation. Where, however, the offense charged is the burning of certain "stacks of wheat of the value of $300," etc., the names of the owners thereof must be alleged and proved. Burger v. State, 34 Neb. 397 (51 N. W. 1027).

2. (1896.) Under section 54 of the criminal code it was erroneous to try defendant upon the charge of burning a schoolhouse, joined with a charge for causing the burning to be done by another. Wendell v. State, 46 Neb. 823 (65 N. W. 884). Evidence.

3. (1899.) On the trial of a person informed against for burning property with intent to prejudice an insurance company, where the accused refuses to produce the policies of insurance, secondary evidence is competent to show the contents of the poli

cies, that they were made out and delivered by an authorized agent of the companies, and that defendant was claiming indemnity under them. Knights v. State, 58 Neb. 225 (78 N. W. 508; 76 Am. St. Rep. 78).

4. (1907.) Evidence, in a prosecution for arson, showing defendant to have been seen at a place of such distance from the property burned to be most probabie that he could not have been near the property when the building was fired will not sustain a conviction. Heidelbaugh v. State, 79 Neb. 499 (113 N. W. 145).

I. CIVIL LIABILITY.

Defenses, §§ 1-6.

Persons liable, §§ 7, 8.

Jurisdiction, § 9.

Process, § 10.

Pleading, §§ 11-15.

Evidence.